OREGON’S WATER QUALITY STANDARDS PROJECT
Rulemaking Workgroup: Non-NPDES Source Issues #2
February 4, 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), Michael Campbell (Industrial Dischargers) on phone, Kathleen Feehan (CTUIR), David Ford (OR Small Woodlands Association), Rich Garber (Boise Inc./AOI), Lauren Goldberg (Columbia Riverkeepber) on the phone, Andrew Hawley (NEDC), Chris Jarmer (OR Forest Industries Council), Jannine Jennings (EPA), David Kliewer (ACWA), Jim Paul (ODF), Jennifer Shmikler (OR Farm Bureau), Peter Ruffier (League of Oregon Cities), Ryan Sudbury (CTUIR), Kathryn Van Natta (NWPPA), Dave Wilkinson (ODA), Terry Witt (Oregonians for Food and Shelter)
Other Representatives: Ken Bailey (Board of Forestry) Peggy Brown (OR Farm Bureau), Gene Foster (DEQ), Ellen Hammond (ODA) on the phone, Allison Hennesy (OEC)
Ray Jaindl (ODA), Koto Kishida (DEQ), Greg Lande (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)
Also Present: Donna Silverberg (DS Consulting), Stephanie Brandon (DEQ, note-taker)
Holly (??? Not sure of correct first or last name)
Welcome and Introductions (Donna Silverberg)
Donna welcomed everyone to the meeting and conducted a round of introductions.
Review Charge and Scope of Workgroup and Rulemaking Timeline (DEQ)
Neil Mullane discussed his expectations for the charge of group. The water quality human health criteria are changing to reflect the new fish consumption rate of 175 g/day. DEQ is looking at the water quality program and rules for changes that can facilitate reduction in toxics in OR. A smaller workgroup met with DEQ for a year or so to do work on point source issues and implementation for toxics reduction. The burden for reducing toxics falls on point sources via their permits. Today’s group will look at the water quality program rules and see where DEQ can change things to facilitate a reduction of toxics and implement rules in the point source and nonpoint source arena. We are looking for ways to balance reductions from both point and non-point sources. To that end, DEQ received ideas from a subgroup of that group, the mixed media group’s memo received last fall. DEQ wants to go back to the mixed media subgroup to discuss the concepts presented and see if there are additional points that DEQ can improve upon in its current proposed approach.
Comments/Questions from RWG members:
• Comments: Object to short timeline. Regarding Item 1 on the group charge: It will be difficult to know what NPS strategies will be effective since DEQ has not tackled NPS issues in this way before. It is bad policy to have a narrow focus on reducing toxic pollutants considering the discussion of variances in the point source arena.
• Question: Will we be using the 11/11/09 memo as a base document to begin discussions?
o Answer: DEQ will come forth today with concepts they believe are in their authority which they gleaned from the memo and other discussions. There will be a separate workgroup to discuss these concepts and additional ones.
• Comment: Objection to the scope of the charge.
o Response: DEQ will not rewrite the rules for existing entities, but they may suggest that they address certain issues that the group comes up with that cannot be addressed in the new rules.
• Comment: Disagree with the characterization that when DEQ changes a rule they focus only on point source issues. This idea minimizes the work that ODF and DEQ staff do on NPS issues.
o Response: Changes in rules are easier to implement in the PS arena, but that doesn’t mean that DEQ/ODF/ODA aren’t working on them. We want to be able to figure out a way to address NPS issues in a better, quicker way.
Neil discussed the timeline (handout dated 1/12/2010). The DEQ rulemaking process takes many months. DEQ wants to stay on target for October 2010 EQC rule adoption. DEQ told the EQC that the rules could be finished this year. EQC wants them this year and DEQ wants to honor that commitment. To do this, DEQ may give this group additional time to meet and thereby reduce DEQ’s time to respond to public comments in the summer. DEQ wanted to know if folks were willing to meet more often.
Comments/Question s from RWG members:
• Question: Does EPA want the rules done this year?
o Answer: This is DEQ’s decision.
• Comment: Objection to the large amount of handouts provided at the meeting that were not distributed beforehand. It is improper for DEQ to say that they want to hurry along the process, but distribute materials the day of the meeting.
o Response: DEQ tried to meet with as many folks as possible before this meeting to provide input. DEQ wanted to bring the already formulated concepts to the group, present them and have folks react to them.
• Question: What is the drop dead date for the rule language?
o Answer: The Secretary of State bulletin is published May 1, so the documents must be submitted to SOS by April 15.
• Question: Does DEQ want input or agreement from this group?
o Answer: This is an advisory group, so DEQ wants input. Consensus is not needed.
• Question: What are the statutory requirements for notice of a public hearing?
o Answer: 14 or 15 days from the SOS publication date.
• Comment: Toxics reduction needs to be done comprehensively for both PS and NPS. If they aren’t, this does not reflect EQC’s charge.
• Question: This group will not work on rulemakings with other DEQ programs, but the group will make recommendations to them. How will the recommendations be put forth by the group (consensus, majority)?
o Answer: Yes, the group will make recommendations to other programs. A consensus is not necessary. Minority report issues will be contained in the final report.
• Comments: There is concern about the decoupling of NPS and PS issues. We need to be as specific as possible on non-NPDES recommendations to the EQC. We also need to provide a record to the EQC as to why the group could not reach consensus.
DEQ Overview of Potential non-NPDES Policy and Rule Concepts
Neil (and DEQ staff) led a discussion on the rule concepts listed on the agenda.
1. EQC adoption of more prescriptive TMDLs (see Draft Prescriptive TMDL Approach handout)
Gene Foster said that how to address NPS issues in TMDLs is being discussed at a national level. He gave an overview of determining load allocations. For TMDLs, DEQ envisions an adaptive management process and use of BMPs.
Comments/Question s from RWG members:
• Question: How would safe harbor BMPs be determined?
o Answer: The group would need to provide input on that. IMDs could potentially be developed.
o Comment: There are deficiencies with the data used to calculate load allocations in current TMDLs. We need to figure out a way to get better data. There needs to be some way to make people accountable for following the safe harbor BMPs
• Comment: DEQ will be taking BMPs and telling landowners how to manage their land. In a business sense, this is a bad idea (micromanagement) and landowners are already implementing BMPs. Most of what DEQ is suggesting is already being done with the Ag WQMPs.
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2. EQC adoption of a rule directing DEQ to reduce impacts to toxic pollutants associated with turbidity, sediment, and sedimentation (see Draft Sediment Approach handout)
Gene discussed the Draft Sediment Approach handout.
Comments/Question s from RWG members:
• Comment: In the Episodic Sediment Delivery section: Over the last 10 or 15 years, it has been determined that slides from mature or burned forests are common occurrences.
Action: Jim Paul (ODF) will send Gene some general language to update the document.
• Question: Does DEQ have a gap analysis to present for these issues?
o Answer: DEQ did not do a gap analysis before the handouts were created. DEQ will eventually produce documents that they will use for the rules.
BREAK
3. EQC adoption of a rule directing DEQ to examine development of a state program to address indirect discharges of toxic pollutants to municipal collection systems.
Neil gave an overview of DEQ’s pretreatment program. Twenty-four municipalities in Oregon must have pretreatment programs in place. The problems with the existing pretreatment program are: a lot of paperwork, limited parameters, and it only applies to 23-24 facilities in Oregon. DEQ wants a recommendation to go to the EQC to form a task force to expand municipalities involved in the pretreatment program. Facilities would put together toxics reduction plans for certain pollutants. SB 737 makes the 52 municipalities look at toxics reduction for persistent pollutants.
ACTION: DEQ wants to work with people who wrote the pretreatment report on this.
4. EQC adoption of a rule directing DEQ to undertake a programmatic review of water quality programs for their adequacy in meeting antidegradation policies (see handout of existing antidegradation policies)
Jennifer gave an overview of antidegradation. Typically, the focus has been on point sources who propose to increase discharges in NPDES permits (new facilities and existing). No states have rules for NPS antidegradation.
Comments/Questions from RWG members:
• Comment: Antidegradation needs to be combined with other things like watershed permitting and water quality trading.
• Comment: NPS has been dealing with antidegradation related to temperature for a long time.
o There is also an antidegradation rule in the DO standard. We need to determine a baseline in forestry and agriculture on antidegradation.
• Comment: DEQ, EPA, and other states fail to protect the Tier 1 aspect of antidegradation. While other states don’t have NPS programs that are part of antideg policies, they do have more specific rules. Not all rules to control pollution should be contained within theTMDL process. Ideally, pollution prevention should be in place before it gets to the TMDL.
o Response: DEQ needs to identify a base level of water quality protection before a TMDL is developed/implemented.
• Question: Are the directives at the bottom of the EQC Policy Statement (handout) going to be part of the rule?
o Answer: Yes.
5. EQC adoption of a rule directing DEQ to develop and implement agency-wide toxics reduction strategy.
Kevin discussed the EQC Policy Statement on DEQ Toxics Reduction Strategy (handout dated 2/3/2010)
• Comment: DEQ needs to change the definition of strategy in #4 to include other agencies. Language on incentives needs to be included.
• Comment: This is a separation from the toxics rulemaking and may make process longer.
• Comment: Make sure that the requirements can be followed with the agency and/or staff resources available.
• Comment: In Objective 3, “source” needs to be defined better in the NPS arena.
6. EQC adoption of rule requirements directing DEQ to evaluate toxic release inventory (TRI) data in the development of permits across programs. This is included in the EQC Policy Statement
Workgroup Input on Policy and Rule Concepts
(See handout/spreadsheet: Possible Toxics Reduction Options Submitted by Stakeholders – Draft 2/4/2010)
Jennifer and Kevin discussed the handout: These are recommendations and ideas that have been submitted to DEQ from the mixed media group (from memos), Kathleen’s email, Janet’s toxics reduction recommendations letter, and two white papers from Kathleen and Ryan (that address the whole universe of non-NPDES sources). This spreadsheet is the central repository/inventory. Some of these recommendations might make it into the rulemaking in short term, and everything else will be part of DEQ’s toxics reduction strategies and go through a gap analysis. DEQ wants additional ideas and ways to improve, expand, or refine these ideas. There likely will be an additional 5 -10 pages added from the Toxics Workshop. This list is not recommendations from DEQ, just ideas heard from stakeholders.
• Question: Are there any gaps in the recommendations – are we addressing toxics in all sectors?
o Answer: DEQ doesn’t know yet.
• Comment: Two things that are missing from the list are:
1. Arsenic decisions implicating regulatory decisions.
2. Legal arguments with regard to variances.
• Question: When is the gap analysis going to be done?
o Answer: DEQ is starting on it now and it will be finished in the next two months.
• Comment: Maintaining this list and putting DEQ in the title indicates that DEQ is endorsing the list. Most of the things on the first page are legislative, not regulatory. DEQ should add a column for whose idea it is and if DEQ endorses it.
• Comment: Some items on the spreadsheet are ambiguous, vague, and simplistic. Strongly suggest that the list should be kept internal with DEQ.
• Comment: Certain things on the list will come at a huge cost with no perceptible gain, so DEQ should remove them. Stakeholders can provide DEQ with that kind of information and supporting analysis.
• Comment: Columns need to be included on long/short term and resource intensive. We need to be aware of increasing regulatory costs to businesses.
• Comment: DEQ should develop criteria for selecting toxic reduction options with an eye to costs and greatest environmental gain
Wrap Up/Next Steps
Donna discussed the new timeline and additional meetings.
Several groups will be meeting in addition to the Rulemaking Workgroup:
• Group to meet with Neil to discuss mixed media memo and suggestions & other info that has been submitted to DEQ: Chris Jarmer, Nina Bell, Dave Kliewer, Peter Ruffier, Allison Hennesy, Dave Wilkinson, Jim Paul, Ellen Hammond
• Toxics reduction strategy stakeholder group - Kevin’s group 2/16 1-4pm
• Pretreatment group to meet with Neil: Dave Kliewer, Nina Bell, Peter Ruffier
Tentative dates of the next two meetings: Week of March 15 and the 1st week in April
Requests of DEQ:
• Put together a complete list of related meetings coming up.
• Be clear on revisions of drafts and what document new versions are replacing.
These notes were drafted by staff at DEQ and edited by the facilitator. Please provide any comments or suggested changes to Stephanie Brandon at BRANDON.Stephanie@deq.state.or.us
Facilitator’s Chart Notes as Quick Reminders from 2/4/10 Meeting
Timeline Changes:
May 15 to SOS (for June public comment)
DEQ will need to have draft rules completed by April 15
Additional Meetings:
• Smaller group discussion of mixed media suggestions (Chris Jarmer, Nina Bell, Dave Kliewer, Peter Ruffier, Allison Hennesy, Dave Wilkenson, Jim Paul, Ellen Hammond meet with Neil Mullane)
• 2/16: Toxics reduction strategy stakeholder group
• Non-NPDES Issues Group (set meetings for mid-March & first week of April)
NOTE: the following are not group agreements, but rather comments made by individuals at the meeting as input for DEQ:
“Recommendations”
• Need to be specific with recommendation
• In facilitator report – need to clarify where there is group consensus and where there is not. If not, clarify who does not agree and why not
• Requires members to be clear re: “This is a recommendation”
• Let facilitator know (e.g. via email and in meetings)
State pre-treatment program task force
• Small group needed for additional ideas (Dave Kliewer, Nina Bell, Peter Ruffier)
• DEQ needs help with rule language
• Crosses over to NPDES rule work
Prescriptive TMDLs
• Process to define safe harbor BMP – clarify
• Connection/follow-up with landowner re: compliance – clarify
• Data needs to set TMDL – needs clarification
• Based on target, not land use
• TMDLs are lengthy process, so while good concept, not a fast fix for reducing toxics
• How does this apply to existing TMDLs?
“Directed” Toxics Reduction Strategy
• In definition: include other agencies (not just DEQ)
• Where might incentives fit? (Clarify)
• Link policy three more clearly in strategy directives
• Caution re: timing of reviews in absence of adequate funding
• What is meant by source – at what point? Definitions
Anti-degradation Approach
• Needs to be teamed with other approaches – consider it the cap of cap and trade
• NPS is handling anti-degradation via TMDL (remember this please!)
• What’s baseline? Needs clarity
• Tier 1/Tier 2 issues
• Other states do have language that could be used in Oregon (see memo)
• Do rule change NOW (not later)
Sediment Approach
• Need updated information from ODF re: burned forests
• Consider pesticide label in TMDL discussions
• Careful of impacts rule may have on potentials for other environmental improvements (e.g., road crossings)
• Problem statement and gap analysis needed
• Beyond evaluation and investigation: what is the direction for action?
2010-02-25T09:22:00
[AM1]
Andrea Matzke
Thought I heard this from Peter R.