OREGON’S WATER QUALITY STANDARDS PROJECT
Rulemaking Workgroup: Non-NPDES Source Issues #3
March 31, 2010, 10:00 AM- 4:00 PM
Location: EPA 5th 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), Michael Campbell (Industrial Dischargers), Kathleen Feehan (CTUIR), Lauren Goldberg (Columbia Riverkeeper), Chris Jarmer (OR Forest Industries Council), Jannine Jennings (EPA), David Kliewer (ACWA), Jennifer Shmikler (OR Farm Bureau), Peter Ruffier (League of Oregon Cities), Mary Lou Soscia (EPA), Ryan Sudbury (CTUIR), Kathryn Van Natta (NWPPA), Dave Wilkinson (ODA)
Other Representatives: Clayton Brown (CWS), Peggy Brown (OR Farm Bureau), Gene Foster (DEQ), Allison Hennesy (OEC), Teresa Huntsinger (OEC), Ray Jaindl (ODA), Koto Kishida (DEQ), Annette Liebe (DEQ), Kevin Masterson (DEQ), Andrea Matzke (DEQ), Neil Mullane (DEQ), Margaret Oliphant (DEQ), Steve Riley (ODA), Debra Sturdevant (DEQ), Jennifer Wigal (DEQ), Wendy Wiles (DEQ), Rick Williams (ACWA), Ken Williamson (EQC), Tiffany Yelton (DEQ)
Also Present: Donna Silverberg (DS Consulting, facilitator), Stephanie Brandon (DEQ, note-taker)
Welcome and Introductions (Donna Silverberg)
Donna welcomed everyone to the meeting and conducted a round of introductions. Neil explained that the goals for today’s meeting were to: review the process, discuss February’s EQC meeting, review the most recent Work Plan sent to EQC, and discuss the areas that this group will focus on (pretreatment, sediment & toxics, and implementation-ready TMDLs).
Updates/Announcements (All)
• Jennifer introduced Peggy Brown from the Oregon Farm Bureau.
• Mary Lou said that on February 23, Representative Blumenauer introduced legislation on toxics in the Willamette River Basin and Senator Merkley introduced the same legislation in the senate. A Maryland senator is working on a package that would amend the CWA for many water bodies (including the Willamette Basin). This bill would provide funding for toxics monitoring work.
• Neil reviewed the draft rulemaking timeline for Human Health Criteria (handout).
• Jennifer said that DEQ published the draft legislative report for SB 737 and public input will be collected through April 19. The public information sessions are next week.
Future Direction for DEQ & Rule Making Process (DEQ)
Neil informed the group that at the EQC meeting on Feb 18, DEQ gave the commission an update and status report on the toxics rulemaking process. DEQ told the commission where we could be by October 2010 and reported on work items we need to address by then. To ensure that all relevant issues are addressed, EQC instructed DEQ to take more time for the rulemaking and report back to them by mid-2011. DEQ sent the Work Plan to EQC on Monday (see handout). The bulleted items on page 2 are what this work group will be emphasizing and working on. (See Work Plan Table 2 – Monthly Draft Agenda Items for Toxics Rulemaking).
Comments/Questions from RWG members and others:
• Comment: The original timeline took into account some things that were supposed to happen in April that are important to the Tribes.
• Question: How is this process related to the overall Toxics Reduction Strategy rulemaking?
o Answer: This process is a sub-part of DEQ’s toxics reduction plan that the water program is working on. Each division is working on how to fit into that plan in terms of their rules, programs and authorities. This rulemaking is the Water Division’s effort (along with SB 737 and others) and is addressing toxics where standards are already set up.
• Comment: Considering what DEQ is doing with SB 737, the work group should discuss if we want to limit the sediment and toxics discussion to the CWA 304(a) list of toxics only.
• Comments: Disappointed that DEQ is raising the issue of arsenic, iron, and manganese in a group that doesn’t have all of the NPDES work group members present. This group does not have all the background papers on As, Fe, and Mn. If we are going to get these addressed before the rest of the WQS package, we need to have the same group keep working on this issue.
o Response: DEQ distributed the arsenic paper to this group and all the NPDES members were invited to this meeting as they are all a part of this larger group. DEQ has determined it is not feasible to address As, Fe, and Mn in a separate rulemaking due to the staff time required to support two public comment periods.
o Comments: The arsenic subcommittee discussed that there could be point source control of arsenic, but we can’t focus on NPS control of arsenic without addressing NPS control in general. This new schedule means that NPDES renewals will continue to be held up. This interim arsenic policy will put certain permitees on track for a lot of litigation. Permitees want to do the right thing but can’t with all this uncertainty. The only way to solve the arsenic issue is to fix the criterion.
ACTION: A discussion of the arsenic issue will happen at the next NPDES work group meeting. The subcommittee will meet before that, with notice of that meeting getting sent to the entire group.
Jennifer discussed process improvements for this work group, which are:
1. DEQ will be clear with work group expectations and what DEQ is asking of them.
2. DEQ will document the process and resolution of issues.
3. DEQ will clarify and simplify scheduling and logistics.
The measures that DEQ has taken to implement these improvements are:
1. Dates for the work group meetings are scheduled for the remainder of the year and will take place at the EPA conference room. The only change to this might stem from DEQ’s openness to having meetings in other cities if that is what the work group would like.
2. DEQ has prepared a work plan schedule. The September 2010 meeting is the wrap-up of the final rule. Substantive items need to be wrapped up by Sept. to be on track for the rulemaking next year. Oct/Nov dates are scheduled if needed. ACTION: This group needs to agree on the scope of the discussions by the end of April in order to stay on this timeline.
3. This group will focus on issues that will be included in rule that the EQC has authority over. DEQ will keep a ‘parking lot’ of the issues that do not fall within the rulemaking scope.
4. DEQ will put noted the expected outcomes of discussions in each agenda item. We will also be certain that any presentations we give are clear about the point we are making and the input we need from the group.
5. The facilitator will review the assignments and action items at the end of each meeting to be sure everyone is clear.
6. Issue papers will be used to set up discussions and to document decisions.
7. There will be an update at each meeting on the discussions/resolutions from the previous meeting.
Comments/Questions from RWG members and others:
• Question: How will DEQ determine the scope?
o Answer: At the February 4 meeting, DEQ addressed the scope and had further discussions last week. We asked people for input on the process we should use to move forward, but got no response. To decide if something should be included in the scope, we analyzed the Inventory of Possible Toxics Reduction Options (handout from the Feb. 4 meeting) to determine:
▪ Does DEQ have statutory authority to address the issue?
▪ Is it appropriate for rulemaking?
▪ If it is appropriate, then is it feasible or desirable to include in this rulemaking?
• Comment: Objection to the participatory process that DEQ is alluding to. Did not understand that DEQ had ever asked us for comments on process.
o Response: DEQ will still accept comments on the process.
• Questions: Which elements on the monthly agenda items table does DEQ think are implementable under the CWA NPDES program (i.e. which are approvable by EPA?)? What will DEQ take action on?
o Answer: DEQ has just started its discussion of these items, so they can’t answer that question today. DEQ will document their discussions and EPA will comment on them. This process is lagging behind the RWG.
• Comment: This work group needs to address the issues that are enforceable by EPA. This can’t be done in five months.
o EPA’s Response: EPA is going to have to act on DEQ’s 2004 the human health criteria at the end of May. EPA has not acted on the criteria before now. This action does not affect Oregon’s current process to revise the standards. EPA will have to approve or disapprove the 2004 criteria. If approved, it is still in DEQ’s hands to move forward on EQC’s decision. If disapproved, statute requires that EPA give Oregon 90 days to address the disapproval. If Oregon doesn’t address it, then EPA will move forward with the federal criteria. EPA wants to keep this process in Oregon’s hands and keep things on schedule because EPA believes the best place for WQ standards development is with the states. However, the process should not be delayed anymore than it has been; if it is, EPA may have to take over. A disapproval by EPA would mean that they believe that the 17.5 g/day are not protective enough of the beneficial use of fishing. Their action would only be on the human health criteria.
o DEQ’s Response: Regardless of the action that EPA takes, DEQ will continue to work through this process because they are committed to it.
• Question: Are the Feds under any obligation to create or adopt implementation measures under the NPDES section of the CWA?
o Answer: No. The benefit for the state process lies in this area.
Pretreatment (Rick Williams, Clayton Brown, ACWA Pretreatment Committee and Tiffany Yelton Bram, DEQ. Introduced by Dave Kliewer)
Rick, Clayton, and Tiffany gave a presentation on current Federal/State pretreatment programs, the subcommittee’s example of a Local Program, and Pollution Prevention tools. (see handouts) The objective for this agenda item is to identify a subgroup to discuss pretreatment issues and report back to the larger group. ACWA is suggesting that toxics source reduction from local programs should be voluntary not mandatory. Currently, they are doing good source control work. Local sewer ordinance is being developed as a tool to engage industry and communities. ACWA is willing/wants to engage this group to improve on their ideas. They would like to see changes that support municipalities being able to employ a variety of tools, not just industrial users.
Comments/Questions from RWG members and others:
• Question: Has DEQ thought of any ideas to try and implement pretreatment programs for smaller POTWs?
o Response: This is an issue for the subgroup.
• Comment: The 52 larger POTWs are already in the process of developing and submitting reduction plans.
• Question: How does pretreatment work?
o Answer: POTWs submit documents and DEQ & EPA approve their programs. Municipalities then issue permits to industrial dischargers - DEQ is not required to approve those permits. DEQ reviews the permits in audits that EPA requires every 5 years.
The next step is to form the subgroup. The subgroup will look at the issue papers and report ideas back to the group. Some of the papers go beyond ACWA’s position on a voluntary approach.
Comments/Questions from RWG members and others:
• Question: The indirect discharger memo caused confusion between pretreatment and indirect dischargers. Is this the right forum for this topic since they issue NPDES permits?
o Answer: The subgroup will figure this out.
ACTION: Nina volunteered to be on the subgroup and thinks the paper that they wrote may have been misconstrued. She wants to address what goes beyond the federal pretreatment program. Others interested are: Lauren, Dave, Peter, maybe CTUIR, and maybe Rich Garber or AOI staff. Chris will check with AOI about their involvement.
Overview of Sediment and Toxics (DEQ)
Josh Seeds gave a presentation on Sediment Processes (see handout). Key points included:
• Episodic delivery is natural process. It is a good thing that it happens, as it delivers key components to aquatic ecosystems (large woody debris & course sediments)
• Chronic sources of fine sediment are harmful – they create stress on aquatic ecosystems
• Toxics bind to sediment and can also be in water.
Comments/Questions from RWG members and others:
• Comments: The best type of irrigation to reduce transport of sediment and bound toxics to waterbodies is dependent on the soil type and site characteristics. It is not one-size-fits-all. Condition-based programs are better than practice-based programs. They are more flexible in preventing certain negative impacts. A holistic approach is also better than a single solution for the same reason.
Aaron Bork gave a presentation on Turbidity (see handout). The current turbidity standard will be revised by June 2011.
Comments/Questions from RWG members and others:
• Question: What is the point of the last two talks and how they relate to what we are doing?
o Answer: The work group needs to be aware of other things that DEQ is doing that are related to toxics and how they all fit together. For example, what holes in the turbidity standard can be addressed in the human health criteria standard? Is there something that can/should be done to help implement and achieve the overall goal of toxics reductions?
Implementation-Ready TMDLs (DEQ)
Gene Foster gave a presentation on Implementation-Ready TMDLs (see handout). The questions to consider are:
1. What are the impediments to reducing pollutant loads from Non-NPDES sources?
2. What are the impediments to implementing TMDLs for Non-NPDES sources?
3. What should be included in implementation-ready TMDLs?
4. How should these approaches be institutionalized: Guidance, IMD, OARs, ORSs?
There is guidance on implementation plans. Designated Management Agencies (DMAs) are named and have requirements for implementation. The requirements can vary by DMA. There is systematic monitoring, but there is not an effectiveness monitoring program for each and every DMA.
Comments/Questions from RWG members and others:
• Question: Is there an implementation monitoring element to TMDLs?
o Answer: For Ag there is a biannual review for each DMA, but there is no way for DEQ to capture data to see how effective implementation measures are. DEQ would like to get there eventually and that is the direction they are going. DEQ is working more closely with NRCS and OWEB for funding opportunities once the TMDL comes out (John Day is the first one for this).
• Comment: Ag WQMPs are reviewed biannually by ODA.
• Comment: It is important to discuss how soon we will expect to see results with implementation plans.
o Response: The ways to get results are to use adaptive management and to focus on the low hanging fruit.
Ray Jaindl said that we tend to focus on Ag WQMPs, but ODA has a lot of other programs available (see handout).
Dave Wilkinson discussed Implementation-Ready TMDLs – Agriculture (see handout).
Comments/Questions from RWG members and others:
• Question: There are less than 10 toxics TMDLs, do most use a surrogate?
o Answer: The early TMDLs did not use a surrogate. Dioxin was a straight measure, the Columbia Slough was not.
• Question: Are the BMPs basically the same for implementation recommendations?
o Answer: For early TMDLs, they varied depending on the sources. TMDLs don’t have set BMPs or underlying implementation plans.
• Comment: Ag does not want DEQ to usurp the Ag WQMP process because it involved a lot of work to create them and they are very useful.
• Question: How often can DEQ evaluate TMDL implementation plan effectiveness?
o Answer: Not very often. There is some monitoring in the Tillamook subbasin that shows declining bacteria. This is similar monitoring in the Tualatin subbasin done by CWS. Pesticide Stewardship Partnerships have shown declines in in-stream pesticides. DEQ doesn’t have anything in place to monitor how effective each TMDL is.
• Questions: How are load allocations determined? How are they determined for air?
o Answers: Point sources get the bulk of the allocation and non-point sources need to meet system potential vegetation (for temperature). How that gets divvied up is a policy decision. For air, DEQ would use modeling to determine the allocations.
• Questions: Who pays for the modeling? Does DEQ have authority to request money from sources that do not affect water?
o The State of Oregon, other agencies, and stakeholder groups would pay for the modeling and that cost would vary according to what data is available in the basin. Not sure if DEQ has authority to request money from sources that do not affect water.
Wrap Up/Next Steps (Donna)
Action Items for Next Meeting:
1. Discuss arsenic issues at the April meeting.
• A subgroup will form to address issues and meet prior to the meeting.
• The entire group will be notified of all subgroup activity.
2. The Pretreatment group will meet to reconcile and refine the issue paper for April’s meeting.
• So far, Nina and Lauren have volunteered. CTUIR, ODA, and AOI have expressed interest.
• A notice will go out to the group to see who else is interested.
3. DEQ will prepare an issue paper on the scope of the rulemaking discussions.
• DEQ will provide the issue paper in advance of the April meeting.
• Everyone needs to be prepared to discuss & resolve the issues at the 4/27 meeting.
4. Anyone with specific suggestions for improving the process around these discussions should contact Mary Lou, Donna, Jennifer or Neil (see below)
April Agenda Items:
Morning – NPDES Discharger Issues
• MDV, De Minimus, General Permit – Relevant for the discussion on background level
• Restoration standards – Viability of including in rule language
• Arsenic – Subgroup discussion - Michael, Nina, Kathryn, ???
Afternoon – Non-NPDES Issues
• Scoping discussion – Full group
• Pretreatment – Subgroup will report
• Antidegradation – Background piece, discuss initial ideas to address
• Sediment and Toxics – Initial topics and get feedback
Comments/Questions from RWG members and others:
• Comments: There is concern and confusion about how these two groups will function. Disagree that everyone from both groups should be invited to the meetings, including those who have not participated in the past.
ACTION: Anyone who has specific suggestions to improve the process DEQ laid out should contact Mary Lou Soscia, Donna Silverberg, Jennifer Wigal or Neil Mullane as soon as possible.