Rulemaking Workgroup: Non-NPDES Source Issues, Meeting #4

April 27, 2010, 1:00 PM - 4:00 PM

Location: EPA 5^th Floor Conference Room

Portland, OR

Present for all or part of the meeting (in-person or on the phone):

Workgroup Members: Nina Bell (NWEA), Myron Burr (AOI), Kathleen Feehan (CTUIR), Rich Garber (Boise Inc.), Lauren Goldberg (Columbia Riverkeeper), Jannine Jennings (EPA), David Kliewer (ACWA), Jim Paul (ODF), Peter Ruffier (League of Oregon Cities), Jennifer Shmikler (OR Farm Bureau), Mary Lou Soscia (EPA), Ryan Sudbury (CTUIR), Kathryn Van Natta (NWPPA), Dave Wilkinson (ODA)

Other Representatives: Ken Bailey (BOA), Bill Blosser (EQC), Peggy Browne (OR Farm Bureau), Gene Foster (DEQ), Ellen Hammond (ODA, on the phone), Lisa Hanson (ODA), Teresa Huntsinger (OEC), Koto Kishida (DEQ), Greg Lande (DEQ), Annette Liebe (DEQ), Kevin Masterson (DEQ), Andrea Matzke (DEQ), Keith Mills (ODF), Neil Mullane (DEQ), Steve Riley (ODA, on the phone), Josh Seeds (DEQ), Debra Sturdevant (DEQ), Kathryn Walker (Oregon Dairy Farmers Association) Jennifer Wigal (DEQ), Ken Williamson (EQC)

Also Present: Donna Silverberg (DS Consulting, facilitator), Stephanie Brandon (DEQ, note-taker)

Action Items from this Meeting (Summary notes to follow):

•  Finalize Scope of Non-NPDES Action Items

o  For May 20 meeting, DEQ will have draft rule language for possible changes to OAR 340-41-0061 (11) & (12) that clarifies statutory links. (Provide old & new language and statutes.)

o  DEQ will prepare a summary of interactions DEQ has with ODA & ODF regarding sufficiency analysis.

o  Close loop on scope decision. Send out final version of paper.

•  Sediment and Toxics

o  DEQ will discuss ideas put forth internally and decide on one of the three approaches.

•  Antidegradation Implementation for NPS

o  DEQ will work to move something forward at the May meeting. Beef up issue paper, be more clear, add introduction that makes it clear what DEQ is doing and how DEQ envisions that will work in the short timeframe.

o  Add the flow chart from the IMD

Welcome, Introductions, and Review Goals (Donna Silverberg)

Donna welcomed the group, went over the rules of conduct, and conducted a round of introductions. Donna announced the meeting goals:

1.  Finalize scope of non-NPDES items for this rulemaking

2.  Discuss sediment and toxics issue paper and options; answer workgroup questions; and make a decision regarding which approach the workgroup recommends.

3.  DEQ present options for proceeding with an antidegradation implementation approach for nonpoint sources. Make a decision regarding which option to pursue.

Announcements:

•  Kathleen announced that she will be leaving her employment with CTUIR, but Ryan will be staying on as the Tribes contact.

•  Mary Lou said that there is a hearing tomorrow on the Columbia River toxics reduction bill.

Finalize Scope of non-NPDES Action Items (Neil Mullane and Jennifer Wigal)

Neil said that DEQ received a lot of suggestions on where to move forward. DEQ reviewed the options extensively and wants the group to decide on which ones to move forward with. (See Scoping Evaluation and Background Information handouts)

The group discussed the removal of shields from page 5 and if the rules accurately reflect what is in statute. The bottom line is whether landowners are meeting BMPs. The subgroup looked at DEQ’s rules related to WQS and discussed how DEQ can be more efficient in making WQS easier to obtain for both in PS and NPS. They found areas that need to be removed or refined in order to make that happen.

Comments/Questions from non-NPDES workgroup members and others:

•  Comment: Any mention of ORS 527.770 needs to also mention 527.765. By statute, ODF has to keep BMPs updated to meet DEQ’s standard. The statute has been in place since 1991 and ODF has never been petitioned by EQC or the public regarding any specific concerns.

•  Comment: Agreed that the statute is clear that forest practices have to meet WQS, but it is constrained by statute. Since this is in the statute, it doesn’t need to be repeated in DEQ’s WQS.

o  Response: DEQ has the option to delete those WQS provisions, not to change or implement statute. The group needs to focus on whether we should retain the provision as written and if it has value. What will happen if we delete it?

DEQ suggested that we clean up ORS 340.041-061 (11) to make it reflect the existing statute. We can look at 527.765 and 527.770 and see what to take from those to revise the standards.

Comments/Questions from non-NPDES workgroup members and others:

•  Comments: One suggestion is to take the language out altogether and let the statute stand alone. The landowner will only care about the one standard that they need to adhere to, and right now it doesn’t say that. Revising it will make that clear. When DEQ redrafts this language, they need to clarify what happens in the scenario where meeting WQS has been established through meeting a TMDL.

•  Comment: DEQ needs to clarify 340-041-0061 (11) and (12). DEQ also needs to clarify nonpoint sources that are not covered under the Forest Practices Act (FPA). The rule could clarify what is written in statute and remove ambiguity.

o  Response: DEQ will provide this at the May 20^th meeting of the group.

•  Comment: Permitted sources are required to monitor, but nonpoint sources do not seem required to do so.

o  ODA’s response: OAR 603-0090-0030(1) does not specifically require monitoring as a component of Area Plans. This rule does require “necessary measures”, which could easily include monitoring.

•  Comment: The process to determine sufficiency/adequacy of Ag and forestry’s TMDL implementation is not clear. How do we know the effectiveness of BMPs that are being used?

o  Response: DEQ will provide information on interactions between DEQ and ODA, as well as with forestry.

Neil asked if there was any concern with items on page 4 and what DEQ is not including in the rule package. He said that regarding historic abandoned mine clean-up, DEQ has a cleanup program and was involved in cleaning up a few mines. Money was cut from the General Fund and DEQ no longer has resources for this. The group briefly discussed changing the TMDL rules to require an individual load allocation to be given to significant air deposition and land sources of pollutants subject to TMDLs.

Comments/Questions from non-NPDES workgroup members and others:

•  Comment: Urged DEQ to make the change in the TMDL rules relating to air issues and clarification about significant deposition into water.

o  Response: Neil will talk with Gene about this to see if we need to have it in the rule.

•  Comment: The three middle terms on page 4 that are not going to be included are still related to WQ and there could be policy statements, legislative work, or inter-agency work to recommend how these practices could be changed. We need to go beyond the EQC rules and make some broader statements about these three things.

o  Response: DEQ agrees and the agency Toxics Reduction Strategy will cover this. This work group also has a parking lot of toxics issues to be addressed at a later time.

Sediment and Toxics (Josh Seeds)

Josh discussed the issue paper and options for sediment approaches. Aron Borok discussed benchmarks in his talk at the March meeting.

Comments/Questions from non-NPDES workgroup members and others:

•  Question: Are benchmarks useful for TMDL development?

o  Answer: No, relative bed stability is useful for identification of impairment, not for source identification.

•  Question: Do we have any idea what direction the turbidity rulemaking is going?

o  Answer: The schedule is basically the same as this one with rule adoption next summer.

•  Comment: Assuming that the turbidity rulemaking is successful, there is a gap with the current narrative not being as strong as it could be and a gap from when DEQ could have numeric criteria. Therefore, we should look at proposed rule language.

o  Response: Narrative only expresses the connection between clean sediment.

•  Comments: When we deal with non-NPDES sources that deal with toxics, there is a lack of data. We should look for areas to reduce both toxics and sediments. We need to include a statement that includes prioritization of reduction options.

•  Comment: Concerned that if we focus on prioritization then we will lose focus from point source implementation. Therefore, we should do nothing. If we try to do everything, we will do nothing and turbidity is covered under Triennial Review.

•  Question: Why is bedded sediment and turbidity not on the same timeline?

o  Answer: Benchmarks on suspended sediments won’t be included in the 2010 integrated report because DEQ does not have the resources to do all the work. The turbidity rulemaking is on track.

•  Comment: There is a disconnect between the rules to cover the state and what actually happens on the ground. There has to be sediment in streams; it isn’t a bad thing. Sediment requirements are different for different areas of the same stream. Voted to do nothing.

Donna said that she heard support of all options and called for a straw poll to see where the group stood (using the 1-5 finger method – 1 means fully supportive 5 means absolutely not, I will not support that).

1.  Do nothing option: A few 5s, some 1s

2.  Request direction from EQC option. One 5, ,mostly 1s and 3s

3.  Regulate sediment through toxics rulemaking option: no 5s

Next Steps: DEQ needs to discuss the ideas put forth internally and decide on one of the three approaches which they will bring back to the work group at a future meeting.

Antidegradation Implementation for Nonpoint Sources (Deb Sturdevant)

Deb reviewed the antidegradation issue paper. DEQ has to have an antidegradation implementation plan that is approved by EPA. It is incorporated into Oregon rule by reference in an Internal Management Directive (IMD). It was last approved by EPA in 2004.

•  Question: Is antidegradation one of the three main aspects of WQS? If it is, why does it need to be established as a standard?

o  Answer: DEQ wants to clarify that and make it obvious. DEQ would have to go through a process to determine how we would implement the standard.

•  Comment: Disagreed strongly with a lot of what is in the issue paper. DEQ consistently ignored the Tier 1 requirement of antidegradation in the Clean Water Act. DEQ is not giving a more detailed meaning to antidegradation in the paper. “Protect, maintain, and enhance...” does not mean to wait until things get bad before we do those things.

o  Response: DEQ suggested we can add non-point sources to the IMD, but it will have almost no implication because there are no high quality waters in Oregon. DEQ is looking to be able to do something that would apply to high quality waters policy in NPS situations and that would prevent further loading.

•  Comment: DEQ is trying to get at certain things by looking at high quality waters policy and to make sure better waters don’t get worse. Is everyone ready to look at that? Thinks antidegradation is the strongest place to protect Oregon’s waters.

•  Comment: We do not want to fix serious defects in Oregon’s antidegradation policy with this rulemaking process. We want to include antipollution and restorative policies to the antidegradation policy.

•  Question: It is possible to treat antideg in this manner? Could we do what DEQ wants on page 7, option B?

o  Answer: DEQ recommends numbers 2 and 3 under option B.

DEQ asked several questions:

1.  Does workgroup agree that DEQ should identify how antideg applies to NPS?

2.  Does workgroup agree that DEQ should revise antideg IMD to include procedures for stormwater?

3.  What is the timing for people’s expectations if it is not part of rulemaking process?

DEQ stated that we need to keep this in the same timeframe as the rulemaking.

Next Steps/Wrap Up (Donna)

May 20 Agenda:

•  Non-NPDES Scope - Existing Shields (new language)

•  Implementation Ready TMDLs – draft issue paper

•  State pretreatment program

•  Anti Deg - clarified rule language

Sediment and Toxics will be addressed at the June meeting.