January 29, 2010 Meeting

DRAFT Facilitator’s Summary

The following notes are a summary of issues discussed and issues that may need further discussion at upcoming meetings.

Present for all or part of the meeting:

Workgroup Members: Nina Bell (NW Environmental Associates), Myron Burr (Siltronic), Michael Campbell (Industrial Dischargers), Rich Garber (AOI), Lauren Goldberg (Columbia Riverkeeper), Andrew Hawley (NEDC), Dave Kliewer (ACWA), Peter Ruffier (League of Oregon Cities), Ryan Sudbury (CTUIR), Kathryn Van Natta (Northwest Pulp and Paper).

Other Representatives: Kim Cox (City of Portland), Kathleen Feehan (CTUIR), Janet Gillaspie (ACWA), Ellen Hammond (on phone, ODA), Jannine Jennings (EPA), Andrea Matzke (DEQ), Neil Mullane (DEQ), Mary Lou Soscia (EPA), Debra Sturdevant (DEQ), Jennifer Wigal (DEQ).

Also Present: Donna Silverberg and Erin Halton, DS Consulting Facilitation Team.

Welcome/Updates

Facilitator Donna Silverberg welcomed everyone to the meeting and conducted a round of introductions. Silverberg reported that some of the conversations with workgroup members leading into the meeting indicated that, for today and all future meetings, the group needs to focus on finding ways to move forward. She asked that before members speak they consider whether they’re helping move things along or continuing the impasse.

•  Announcement: EPA will host a PBDE/flame retardant workshop at the Ambridge Meeting Center in Portland Oregon on February 25^th. Opening presentations will be followed by discussion of where PBDEs and flame retardants are found in the Columbia River Basin as well as discussion of the EPA Action Plan. Interested participants may email Mary Lou Soscia, EPA, for more details on the event.

Setting the Stage:

Neil Mullane, DEQ, said that when he talks to people who have volunteered their time, as this workgroup has, he is always amazed at how willing they are to donate even more time and work through follow up with DEQ. Mullane recalled that in the mid-1980’s he was the administrator for the DEQ standards section. He noted that Oregon essentially has the same standards today as then; it has been awhile since DEQ took a serious look at them and MUCH has changed since then in terms of the science behind them and the new science and information that has emerged over the decades.

Now, he went on, we have a serious need of getting a better set of standards in place. The current EPA approved set of standards in OR is 6.5 g/per day. We believe Oregon is really behind the eight ball. Because of this, DEQ needs to present to the Environmental Quality Commission (EQC) how we are moving the state into a more appropriate position for protecting people who eat fish and drink water in Oregon.

Neil referred the Rulemaking Workgroup to a whiteboard in the room where he illustrated bullet points for what has been accomplished to date and what lies ahead for future non-point source related meetings:

Mullane acknowledged the concern around setting up an effluent limit that facilities can’t meet. If that becomes the case, DEQ needs now to identify the reasons they can’t be met and work with facilities to find the right tools that can help. For example, with regards to variances, DEQ needs to look at how, why and where the tool can be used. Mullane asked the Rulemaking Workgroup to really focus on these issues today. He acknowledged that many in the room are worried about the non-point source side of things, but DEQ needs to get to an ending of the point sources discussions.

Mullane went on to note that next week is the meeting for the non-point source discussion. Members of this group should know that DEQ staff is working on draft language for that meeting. DEQ needs something the EPA will approve. He reminded the group that DEQ is establishing standards that will protect people who eat fish. The next step is how to establish how regulated entities will meet them. Mullane also shared his own gap-analysis drawing of the multiple implementation tools with Rulemaking Workgroup members (“Point Source Implementation Options Within Rules”) and said he hoped it would help the Rulemaking group focus on what DEQ needs to do.

•  Question: so this is for installing the current technology?

o  Answer: yes – and if not meeting the limits, have the technology to establish an agreement that id’s the steps that need to be taken to bring the facility into compliance.

•  Question: would variances be applied broadly or to a specific facility?

o  Answer: think it would be for a specific facility; they will need to come forward and say they have an issue.

•  Clarification: Mullane said that for the case where there is no available treatment technology, a variance would still require a facility to provide all information specific to the terms of the permit and for Pollution Minimization Plan (PMP) requirements. This would be incorporated the same way as milestones.

Mullane said that there are a number of parameters in the standards that have methods and limits that are going to be immeasurable. The quantitation limit is how DEQ will work with those cases. Compliance will be set at the quantitation limit.

Kathleen Feehan, CTUIR, said she appreciated Mullane’s time giving the Rulemaking Group that context for today’s meeting. She noted the group has been at this work for over a year now and no other state is undertaking this level of new standards. Finding a way to implement these standards will, over time, create change and also present issues that will have to be addressed. Feehan acknowledged this is a tough job and while all amongst the Rulemaking Workgroup can relate to some level of exhaustion, when we do get to this new set of standards and have tools and rules and regulatory solutions, we will have a really new thing that other states will look to. Feehan thanked everyone for helping keep the group mindful of the fact that we need to make these tools and solutions as good as they can be. The Tribe will continue to work on helping to develop effective tools and will look forward to the non-point source meeting next week.

Jannine Jennings, EPA, said as she prepared for this meeting, she took a step back and looked at all the discussions the Rulemaking Workgroup has had thus far. She asked herself what more can we ask from the Rulemaking Workgroup and whether it had come to be the time to wrap this portion of the process up. Jennings said that while the call on that is made by DEQ, she came out thinking about the great amount of good work this group has generated. Jennings said the language that DEQ - with refinements from the group - has put forth is looking good to EPA. They are all things that other states have used, are real tools that EPA can agree to and feels are approvable, and sets up a broader range of interpretation than Oregon has had before. While not all aspects are certain, and there will always be things that could have been developed more, it is time to address the fact that there is a set of tools that goes along with the criteria. Jennings said that EPA thinks that more work will lead to more questions and EPA is committed to working with DEQ as they work to answer those questions.

As a result of these efforts, Jennings said EPA will be ready to take action when Oregon comes forward and takes theirs. EPA can live with the direction given by DEQ’s Neil Mullane and Dick Peterson: now is the time to move forward. Jennings added that she has seen Oregon’s commitment to toxics reduction as far beyond what is happening elsewhere and that is what will help this effort move forward. As it stands now, we don’t see anything on the table that gives EPA any heartburn. EPA feels that we have a framework that is ready to move forward to set a new standard for the state of Oregon.

The facilitator asked the group if they had comments on what was said and what issues the group felt need to be addressed today.

Statements from Workgroup Members:

•  Nina Bell: There has been emphasis on how we’ve spent the year here, and this is a good committee; however, I feel an inordinate amount of time was wasted by not moving forward because of DEQ staffing issues. I don’t think it was the committees’ fault, I think we just need more time to address these difficult subjects adequately. When I looked at the agenda for today, it looked like we were coming here to be told something we could have easily read in writing. I also have ideas that could have been added to the table that have no regulatory pieces whatsoever. However, I am not prepared to have discussion on such a large topic and then be told we can’t talk about them later. I feel this was a very bad process to ask this group to scramble at the last meeting when we just want more time to work on this. I also want to know what documents DEQ is sharing with the public and the EQC because I want to know that the Rulemaking Workgroup isn’t made to appear as though we have endorsed anything we haven’t. Our participation has come to an arbitrary and abrupt end and it seems peculiar that we haven’t been given anything to look at that shows the former, current and future criteria.

•  Michael Campbell: The issue is what the standards are supposed to achieve – not the standards themselves. Speaking for industrial concerns, there is a lack of benefit in reducing loading. Facilities shouldn’t be the only means of trying to achieve reduction and meet the standards when it won’t make that much difference and will drive facilities out of business in some cases. I appreciate Mullane’s efforts to re-focus this group, but there is a lot of pressure on the variance process and, from an industrial standpoint, we need more confidence in the variance process. Rather, we need assurance that the background issue actually can be resolved through the variance process. It is the substance, not the process that I am worried about. From the point source standpoint, variances will be expensive, and it doesn’t get us much closer to reduction. We need to see more assurance embedded in the rule. Mullane’s chart shows a static line through the effluent limits – and so a variance is therefore not designed to work for that scenario. The only other approach I can see is de minimus. So I suggest we take a good look at variances today to see if it can actually work.

•  Rich Garber: I would say there has been some good progress, especially with the implementation options outline, but variances are still not very viable; I think for about 95% of cases, variances will not work. I know that the Great Lakes Initiative process took 5 years, and that was a success. Until we have more time to work through the next steps, AOI is not in support of this moving forward as is.

•  Lauren Goldberg: I think it is really important to get the answers to questions we raised during the variance conference call [held on January 15]. I think the aquatic life question and the permit timing and current administrative extension issues are important for DEQ to address today or as soon as possible. I also want to hear how the revised criteria will relate to mixing zones and permitting. I do want to see this effort move forward and get to point that we see standards in place that will improve human health. I also think we need to provide an opportunity for the public to weigh in.

•  Peter Ruffier: I agree with what has been stated thus far and yes, we have made some progress, but we do need more time. I appreciate EPA’s rendering of their preliminary judgment of what has been put forth so far, but I agree with Michael that variances will not address enough of the issue. I would ask that DEQ consult with a permit writer to see what, exactly, would be requested of a permittee. Also, I heard an indication of a belief that permittee’s avoid responsibilities to meet the standards: I want to be on the record as being very willing to meet with other’s ideas where it has been possible and to work on developing a plan for areas where we can’t meet. I would suggest DEQ perform a full triennial review and thereby include more data, such as that for shellfish and technological aspects that are not limited to human health.

Facilitator Donna Silverberg noted questions around when/if there will be time to discuss new tools, what documents will be shared with public/commission and how the group’s input will be noted in those documents, when the table showing past current and future criteria will be shared, the confidence level in variances as a tool, and when there will be time for public comment.

Comments/Questions from Workgroup Members:

•  Clarification: Neil Mullane, DEQ, noted that he heard Michael use the word “assurance” – what did you mean by that?

o  Answer: Michael Campbell: there are significant substantive criteria that facilities need to meet; suggest DEQ clearly put into the rule that if they meet one of this criteria set, they will qualify for a variance.

•  Comment: from the AQWA perspective, think it will be important to have a sense from EPA that the permit will be approved.

o  Like Peter’s idea to consult with permit writer because there might be a level of specificity that permit writers are looking for (beyond the UAA) that will be challenging.

o  DEQ Response: It is the intent of the senior level of the agency to have that assembled for these rules by the time we go to the EQC.

•  Question to DEQ: are you thinking this graph you referred us to today might expand or have items removed?

o  Answer: we think it will expand and we have an internal senior group waiting to proceed on writing the rules. We need to use their time efficiently and so are waiting for you to finish first before asking that group to write.

•  Comment: heard so far today that there is disconnect between the Rulemaking Workgroup and DEQ; suggest one way to protect resources is to let the group work on this for a longer amount of time.

•  Comment: confused about what actually is on the table and what is going forward (referred to implementation spreadsheet). The spreadsheet does not match what Mullane handed out today. There are discrepancies within the variance option between the two documents and would suggest the agency share an updated spreadsheet with clear dates so we can understand what is still on the table.

•  EPA Comment: sometimes the timing comes along for making positive changes and it needs to be taken advantage of; with support nationally and regionally from EPA, now is the time. We are asking people to think about variances in a new way – as a way to help us with respect to the Clean Water Act. EPA sees variances as a tool to help meet the CWA, not as we once did -- which was as a tool to avoid it.

Variances: Where DEQ Has Landed

Jennifer Wigal. DEQ, referred the workgroup to the 1/26/10 version of the Water Quality Variances. She said that, from the DEQ perspective, there have been some situations where there are no other available provisions. DEQ is invested in making progress toward standards reduction and having the variance tool as one of the ways to achieve that. DEQ asked rulemaking members to identify improvements and areas that cause heartburn.

Andrea Matzke, DEQ, thanked workgroup members for submitting written comments and participating in the 1/15/10 conference call discussion. She clarified that, regarding the Existing Use question that was discussed during the conference call, EPA refers to 40 CFR 131.10 for guidance in granting variances, although this language was specifically written for designation of uses and removal of designated uses. Section 131.10(g) and (h)(1) contain language which says states may remove a designated use which is not an existing use. Stakeholders have questioned what that language means and if granting a variance which allows for a short term removal of a designated use, allows or contributes to a degradation of an existing use. DEQ and EPA believe that if the permittee does not increase its toxic pollutant load under a variance scenario from the load permitted in its current permit that it would not be considered as a further degradation to an existing designated use. In addition, the water quality must be of sufficient quality to support an existing use (since 1975).

Comments/Questions from Workgroup Members:

•  Question: existing use requirement dates back to 1975; are you suggesting that because of anti-backsliding you can make such a leap? The rule as it is proposed now looks like DEQ is trying to use the premise as way to get around existing use. How do you meet the 131.10(h)(1) and (g) provisions that says you can’t get rid of an existing use?

o  DEQ Response: for existing dischargers, we would expect existing requirements to apply and do at least as well as have previously. We acknowledge that we need a holistic evaluation – but we’re suggesting that it’s not an existing use that we would be giving variance to. For new facilities, we can look at the overall waterbody. This was an attempt at compromise – and if we put in the rule “no granting variances for new facilities”, then we would preclude the ability to look at the overall waterbody. DEQ decided this language leaves a broader set of circumstances wherein a new facility could apply for a variance.

•  Question: does DEQ intend to go through the exercise of adding a variance to the rules or not? From a practical standpoint, DEQ has been cherry picking from the GLI – which has a lot of other provisions regarding variances that DEQ is not addressing. Oregon is not a Great Lakes state; the GLI should be adopted as a whole not just the parts they see fit. Has EPA changed its view on this?

o  EPA Response: nothing has changed. EPA has required that this be explicitly stated in the provision that OR adopts. The way DEQ explained their view on existing sources is consistent with EPA’s view.

o  Comment: so it sounds like there is disconnect in defining what it means to protect an existing use.

o  EPA Response: yes, the range within that is quite broad. At this point, EPA has not drawn a solid definitive line.

o  DEQ Response: we have drawn language from parts of the GLI that could be applied to OR.

•  DEQ Clarification: If no historical data exists or if an existing discharger wants a variance, and it is reasonable to assume they won’t adversely affect the current water quality, then that same logic extends to new facilities. DEQ would consider this on a case-by-case basis.

•  Question to Nina Bell: do you agree with DEQ’s explanation of EPA’s position on existing uses? Nina Bell Response: if the use was impaired, then it needs to be protected.

•  DEQ Clarification: if we allow new sources, we’d need discussion around whether there is an impact to an existing use. The agency will spell out “how” in the IMD document.

•  Question: will DEQ share how its thinking on how it would implement language via documents out for public review (is it only for regulatory changes?)

o  Answer: it would be shared in the white paper, which does go out for public review.

•  DEQ has heard the message that this is an important point for RWG members.

•  Question: does this seem like a promising path for answering the commission’s directive?

o  EPA Response: we have no problem if DEQ did what they just said.

•  Comment: I am still not convinced that variances are a viable “major highway” for DEQ. On the implementation tools table, there are 3 or 4 tools which require that a variance be granted as a first step.

•  Comment: regardless of what happens in the non-point source process, if there is a FERC process in 2 years, it won’t matter.

•  DEQ Clarification: until the new rule package is approved, DEQ will be using the rules adopted and approved in 1995.

Continuing the discussion on new sources, Matzke referred workgroup members to page 1, section (d) of the variance document which lays out reasons for which a variance would not be granted. This section says that a new source could not be granted a variance unless a variance is necessary under certain conditions. She noted that DEQ has been asked by other agencies how they would respond to dam removal in the Klamath Basin. While DEQ is not yet certain how they would proceed, likely dam removal would fall under “in the interest of the greater good.” Workgroup member Campbell clarified that they likely would need 401 certifications; the question is, “how does EPA plan to protect existing uses given this proposed variance process?” Mullane, responded to the question, “does the way DEQ craft the language prohibit removal of the dams?” the answer is “No”, because the new use would have more stringent criteria and therefore a higher quality of water is needed to support the new use. Mullane added that based on what he was hearing from the group, DEQ should add an “E” section to address this dam removal issue.

Comments/Questions from Workgroup Members:

•  Comment: think that new facilities should not get variances; has there been research to see if there isn’t another tool that would work for them?

o  DEQ Response: Mullane recalled the La Pine area example, where sewage in a new residential area had to be addressed.

•  Comment: think this prohibition for a new facility is unnecessary; rather, suggest that DEQ allow for it only if there are certain conditions facilities can meet (such as meet the standards within 5 years.)

o  Comment: yes, we don’t want to preclude use by a facility that could be using the cleanest and best technology. We would want to see allowances and flexibility for what companies may emerge in the near term.

•  EPA Clarification: the federal rule applies to existing, not new facilities.

•  Comment: suggest adding an “F” section to make it clearer where an expanded or increased mass load for a facility would fall.

o  DEQ Response: if we treat the new load with the same standard they’re using for an existing load, not sure if that plays into this. This is a question that needs to be answered.

•  Comment: two weeks ago NWPPA asked DEQ about whether they would site new facilities in the state and we heard that DEQ would only do so behind municipalities. Have you consulted with the Governor or Economic Development on this yet?

o  DEQ Response: no, we have not consulted on that yet.

o  NWPPA: we look forward to hearing an answer on that. Considering the current economic climate, we would think that the state would want to allow for new facilities.

o  DEQ: To clarify, this rule does not suggest that economic development would be stopped, instead it creates a safer standard for those who choose to do business in the state.

•  Comment: the compliance schedule on the table reads as an option that would apply only to existing sources. There still needs to be clarity around compliance schedules and variances: where are they different? where are they the same?

Matzke referred the group to Background Pollutants on page 4, where new options had been added. She clarified that the language is intended to acknowledge the situation in Oregon, list factors which would lead to a variance justification, could speed the process along, and that this language is broader than the multi-variable discharger, which is currently limited to non-contact cooling processes. She said DEQ had heard from Rulemaking Workgroup members on the 1/15/10 conference call that they would be supportive of something administratively efficient.

•  Comment: the naturally occurring issue does not fit neatly into one of the six criteria. Can we get EPA to say - at least for some of the sources - where the line is and suggest to DEQ that it include that line in the rule?

o  EPA Response: we have discussed this extensively and if there is a demonstration of an analysis that one of the two criteria is going to apply to background levels, EPA would have the ability to approve the variance.

o  Comment: suggest building into the variance rule the interpretation that a source needs to meet one of the six factors.

Looking Ahead

Jennifer Wigal, DEQ, said that some of the variance language remains sketchy and proposed spending time with Campbell and EPA on what the final language should be.

Mullane said that, for some aspects of variances, more time with this group might lead to a resolution. However, for some other aspects, the Rulemaking Group needs to hear the agency say “here is what we’re doing”. Mullane suggested that the group could use one more meeting to spend time on those issues for which there is likely to be a resolution and to discuss language DEQ puts forth following this meeting. He noted that the group wants to see written versions of a permit. When DEQ puts together a background document and whitepaper, this will be the vehicle that serves as way for the public to learn about this group’s discussions and the public could provide feedback/comment.

Statements from Workgroup Members:

•  Peter Ruffier: would suggest much could be accomplished via email and am not interested in another meeting on variances, but could do another to talk about the implementation tools we haven’t gotten to yet.

•  Nina Bell: this committee could move to more of a “providing feedback” function, but she would feel badly having her organization’s name associated with something that she had little to do with the final product. We need a vehicle to make sure the distinction is clear. The list of issues that were put forth at the beginning of today’s meeting – and that we first raised in December - have only briefly been touched today.

•  Michael Campbell: looking forward, I have reservations about the variance process – and heard Nina raise questions that DEQ doesn’t have strong answers to. We could have one more meeting, but I want to hear from members around the table. We have reviewed the language for two months, and if we need more time, let’s talk about that.

•  Lauren Goldberg: there are still items to work through, such as aquatic life criteria. To the extent that these issues could be discussed, it would be helpful to meet again. It does help that we have the NPS meeting scheduled for next week, and we can check in on some of those issues in addition to following up on discrete issues via email. We haven’t heard much shared concern from agencies regarding variances.

•  Kathleen Feehan: we do have items that still have not been addressed. When I think of whether the Tribe would support another meeting, I think that would depend on whether it would affect the timeline of delivering the final package to the EQC in December. The ongoing challenge has been sticking to and completing the timelines set forth on our agenda’s.

•  Kathryn VanNatta: we were supposed to move to implementation tools and NWPPA had a new one to bring to the table today that just broke in the federal register on January 26^th. As there is one more meeting before we’re in a public comment period, NWPPA is very sad to say that can’t report any solid outcomes to our membership at this time. All we can say is what arsenic, iron and manganese criterion would be. We plan to go to the EQC and say the Rulemaking Workgroup is in same the place we were last October. You haven’t left us with a lot of options as a group that is facing legal ramifications that will be the result in this process. We don’t believe that variances will be a workable, viable tool. There is much at stake here.

•  Rich Garber: I fear that variance is a tool that has been oversold. However, if EPA says it is viable, I think I could do one more meeting. I turn to Michael and if he thinks it is viable, I will do another meeting.

•  Myron Burr: I think it would be interesting to see what DEQ comes back with before the next meeting. Other implementation tools hold more promise for the organizations he represents.

•  Andrew Hawley: if DEQ is open to hearing comments on what is legally required, I am happy to continue.

•  Nina Bell: I agree with Kathryn. When I was told this was the last meeting, I felt rushed. We are not at our best when we try to come together in the middle, and I know that is ultimately where we need to be. I will come to as many meetings as are scheduled, but I will repeat: we wasted lots of time last year because DEQ staff did not move us fast enough along and I feel it is now coming out of our hide, when we’ve hardly had the time to talk about items such as “other implementation tools.” This item gets pushed off the agenda every meeting and it is happening again today. I am interested in hearing about other tools and we never do and this committee needs more time.

•  Peter Ruffier: I also agree that the complexities of the issues are such that more time is needed. In looking at the EQC charge, I don’t feel where we are now is responsive to that directive. I feel personally that I don’t have much expertise to add to another meeting as I don’t have the same level of expertise as others in the room and could just as effectively send comments along via email. I am interested in discussion of the “other implementation tools”, but others have a higher level of expertise regarding variances.

•  Dave Kliewer: it has been obvious to me that variances are a gateway to other tools – and I do have concerns and doubts about how they’d work. I can’t see the clear path to the implementation of variances yet. I am encouraged to see NPS discussions happening, but I would have liked to see that in place a year ago. I am willing to come to another meeting, but am not convinced of the utility of that at this point.

•  Michael Campbell: seems like the way to move forward is for himself and EPA, and maybe Nina – to talk variances more and share with group the areas where we think we have solutions. We do need to review list of “other tools”, but until variances is off the table it will continue to consume the Rulemaking Workgroup meetings.

Implementation Tools/Next Steps/Wrap Up

Silverberg and Mullane agreed that the variance discussion, while important, had cut into the implementation tools discussion. They asked the group to list which tools still needed discussion. The Rulemaking members discussed the “other implementation tool” items they would like to discuss for the next meeting, including relative risk, offsets, benchmarks for compliance schedules, pollutant specific general permits (for mercury, arsenic, PCBs, PBDEs and legacy pollutants), Florida’s new rule and any examples of postponed effective dates of standards.

Members also asked DEQ to separate the implementation tool table to clarify which are considered viable, tools that they are still considering and tools DEQ considers not to be viable.

The group agreed to meet for a two-hour call on 2/16 to get any additional background information about new tools. This would be followed by a full day face-to-face focused only on implementation tools. A small group will look at variance issues and share the results with the group via email.

Next Meetings: Feb16^th conf call 9 am – 11;

    and Feb 23^rd 9:30 -3:30 all day

These notes drafted and submitted by the third-party facilitation team from DS Consulting. For comments or changes, please contact Erin Halton at ehalton@cnnw.net or 503-248-4703.