September 15, 2009 Meeting
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), Michael Campbell (Industrial Dischargers), Lauren Goldberg (Columbia Riverkeeper), Dave Kliewer (ACWA), Mark Riskedahl (on phone, NEDC), Peter Ruffier (League of Oregon Cities), Ryan Sudbury (CTUIR), Kathryn Van Natta (on phone, Northwest Pulp and Paper).
Other Representatives: Marganne Allen (on phone, ODA), Spencer Bohaboy (DEQ), Kathleen Feehan (CTUIR), Jannine Jennings (EPA), Andrea Matzke (DEQ), Melinda McCoy (EPA), Neil Mullane (DEQ), Debra Sturdevant (DEQ), Jennifer Wigal (DEQ), Dave Wilkinson (on phone, ODA).
Also Present: Donna Silverberg and Erin Halton, DS Consulting Facilitation Team.
Welcome/Updates
Facilitator Donna Silverberg welcomed everyone to the meeting and a round of introductions was conducted. She noted that the focus for the meeting was to address any edits or questions rulemaking group members have regarding the handouts and draft rule language sent out prior to the meeting. The following updates were shared with the Rulemaking Group:
• DEQ and EPA are co-sponsoring a water quality standards academy/training to discuss how standards are developed and applied. Invitees include department staff and tribal representatives, members of this work group and others. Monday, September 21st is the deadline for registration and up to 60 may attend. Instructors include staff from EPA Region 10 and DEQ.
• Andrea Matzke and Spencer Bohaboy were introduced as new DEQ staff for this work effort. Bohaboy also works on permitting and is on special assignment to the Rulemaking effort for the next 5 months.
• For the October 22 EQC meeting, DEQ managers will provide a basic overview of all of DEQ’s toxic reduction strategy work for the commission members; the presentation will orient EQC members with the actions planned ahead, update them on the water quality standards, SB737, toxics reduction efforts, how the gaps identified will be addressed, and also show the commission how they all relate. The meeting will be held in Klamath Falls and this item will have about 3 hours on the agenda.
o Question: are Rulemaking workgroup members expected to attend? Answer: it is not expected, but anyone who wishes to may do so. The bulk of the presentation will be informational. DEQ will present to the EQC again in December (10- 11th) and February (18-19th). For the December EQC, interim products for the toxics reduction strategy will be presented and the informational item at the EQC’s Februarymeeting will include draft proposed standards rule to go out for public comment, along with an update on trigger levels for SB737 and draft strategies for toxics reduction.
• Comment: regarding the overall timeline/rulemaking schedule – one of the concerns is that there is an increasing divergence between human health criteria development and broader implementation issues being addressed.
• Comment: don’t see the link in what DEQ is saying to prior commitments around non-NPDES/mixed media.
• Comment: another concern is that we’ve adjusted the timeline in a way that appears as though it will compromise fulfillment of the EQC directive.
o Response: DEQ’s intention is to provide the kind of informational presentation to the EQC that will help ground them in preparation for the December and February presentations.
Action: DEQ will pass on more details regarding the EQC meetings as they become available. They will also share updated timeline / process information as it is developed.
Donna thanked all workgroup members who provided feedback on the rulemaking process thus far via calls with DS Consulting staff leading into this meeting. She noted that some of the comments expressed above match comments heard on the calls.
Regarding topics for future meetings, Jennifer referred the group a handout that summarizes DEQ’s suggested topics for the Rulemaking Workgroup’s October and December meetings. She said that the non-NPDES/mixed media topic provides bridges to other permitting issues. She added that DEQ may be interested in re-convening the Rulemaking workgroup as needed as we move into 2010. Workgroup members shared the following with regard to the process:
• Comment: the multi-media subgroup (Ryan Nina Peter and Charlie) has pulled together a “draft white paper” that provides options for DEQ to consider pursuing for the multi-media aspects of the rule.
o DEQ Response: DEQ has been holding internal discussions of the draft paper and we think we need to determine how it fits under the existing authorities, and where the suggestions would reside (under which regulations) to get a handle on the best way to pursue multi-media. DEQ intends to scope out what the process will look like for this.
• Comment: it seems very late in the process to be “scoping out the process” for this. We keep coming to these meetings, doing work to move forward and don’t understand why we’re not hearing anything concrete from DEQ.
• Comment: Frustrated. We entered into this new phase with the understanding that we would be part of a new, innovative effort. We have heard the department make specific commitments about how they would address the EQC directive. If this isn’t the group who will scope out the process – then what is? The League of Oregon Cities and ACWA representatives said they planned to alert their counterparts to this process issue.
o DEQ Response: there are others who need to be involved with you to continue these discussions and we are working to scope that out.
• Comment on response: this is an old issue – why didn’t DEQ see that those people who need to be involved were involved earlier? We may miss the goal of a February package delivery date because DEQ missed the need to identify persons who need to be included in the process.
• Comment: think everyone at the table would agree that agriculture, forestry, and air representatives need to be involved; does it seem like there’s a way, (in the next 2-4 weeks) as the non-point source work comes together, to participate in a more detailed conversation with all the folks who need to be involved?
o DEQ response: we think those folks are not entirely uninvolved thus far. There has been some involvement with this committee as well as with Toxics Reduction Strategy.
• Comment: agree with the above, but as we have not yet seen anything on paper from DEQ that will address issues in air and land, ultimately the responsibility lies with DEQ. Although the subgroup has done its best to scope out the ideas and offer initial language, it is not our responsibility to draft language for DEQ. We know there are difficulties in drafting language, but it’s not clear how that’s going to happen before the October Rulemaking meeting. As this piece will affect whether the criteria have a chance in being met in the water, we feel it is deserving of DEQ’s time.
• Comment: overall, what we’re seeing in today’s handout does not appear to meet the directive of the commission because the mixed media aspects are missing.
o DEQ Response: we did not mean to imply that mixed media would not be part of the presentation to the EQC this October – the toxics reduction strategy is one area where it will be addressed in addition to the water quality standards efforts. We will need to identify opportunities for mixed media efforts to be included in short- and long term strategies. We agree that we will need to point out to the commission where these efforts dovetail with existing efforts and relate them to direction given to DEQ by the EQC.
• Comment: we hope DEQ could identify the path forward that would illustrate how we are protecting water quality on a broad scale. It has been frustrating, despite what may be going on internally at DEQ, that we haven’t seen any DEQ Air Department representatives at the table to get commitments from all of the DEQ agency.
• Clarification: the subgroup has plans to present two draft papers for the October Rulemaking meeting.
• Comment: CTUIR will offer to step in and help provide manpower and time, as we are aware that we have only a month and a half. At some point we have to see DEQ step in and own the language. DEQ needs to explicitly see the connections to other media and explicitly articulate the connections to air and water to the EQC. If we make a newly supported effort, perhaps we can meet the target of October.
• Question: what is the status of the inventory of all current toxics reduction strategies?
o Answer: that inventory was handed out at the last meeting; we’re currently identifying sources/pathways and the next step will be to identify ways to minimize gaps. The September 28th Toxics Stakeholder meeting will help folks understand the progress made this far and the Toxics workshop on November 17th will help pull together data that will support the overall toxics reduction effort.
• Question: is there a way to get an update on the mixed media subgroup’s work for the last 6 months? Has the large stakeholder group been given an update?
o Answer: they did get a verbal briefing, but nothing in writing for official review.
• Comment: Is there anything in writing? I was not aware that the subgroup was even continuing; there seems to be a lack of communication about the whole process, but perhaps it is a matter of differing expectations. Workgroup member response: I am not on the subgroup, and I did not (?) think that things were still moving.
• Response: There will be something on paper from the subgroup for the Oct meeting. We are not sure what DEQ managers in the Air and Water departments are thinking, because they haven’t been coming to the subgroup meetings.
• Comment: I thought first step for toxics strategy was the pollutant-specific subgroup, and have been operating under that expectation. I am confused and concerned regarding the topics listed under the upcoming meetings.
Action/Next Steps: The subgroup will provide a draft for review for the next meeting and as we’re hearing now that there are other DEQ folks that need to be part of the review.
o DS Consulting will work with DEQ staff to provide clarifications for all involved about the process moving forward and will get answers from DEQ managers as to whether the right folks are involved with the development/review of draft language.
Arsenic – Anthropogenic Sources Criterion
Debra Sturdevant, DEQ, referred the group to a handout / draft proposal that was created by the anthropogenic sources subgroup and it accompanies the 2.7 criteria. The provision would aim to keep drinking water and natural levels low where they already are lower than the criteria. Sturdevant noted that the draft also includes new rule language and a proposed implementation approach for individual industrial dischargers (permits) and municipal permittees. Deb reviewed specifics in the document, noting the non-point sources language need more development. She reviewed arsenic-related steps, noting that the critical question for dischargers is “are you adding arsenic in your discharge and is that addition likely to affect a community drinking water supply?”
Questions/comments from workgroup members:
• Question: is it DEQ’s plan to have the implementation guidance finalized at the same time the rule goes out for public comment?
o Answer: we don’t typically do a full IMD with a rule, but we do want to be sure there is a clear understanding of how DEQ intends to apply this rule.
• Comment: there’s a challenge in comparing POTW and industrial? dischargers and we need to be sure that we’re protecting the same resource in same way once we get past the SB737 process.
o DEQ Response: to clarify, the P3 list includes arsenic 3.
• Question: Is there a timeframe for setting a trigger level under 737?
• Comment: it would be wise to include more detail than usual in the rule package – as so far it is not obvious. We’re not seeing small POTWs addressed here.
o Response: true, there is no specific additional requirement for the smaller POTWs. The focus has been on known significant sources.
• Question: how will industrial stormwater permits work – would there be similar requirements to those for industrials?
o Answer: DEQ is focusing here only on known sources for required monitoring and reduction plans. Wood treating facilities fall under “known sources” and are already required to collect data. DEQ is proposing to address these sources through the renewal of their stormwater permits.
o RWG expressed support for including stormwater permit specifics in the next draft.
• Comment: think this draft does not specifically direct DEQ to review the list of facilities required to collect data.
o DEQ Response: turns out that more facilities than expected are actually required to collect data. We acknowledge that we did not make recommendations about that in this draft.
• Comment: for industrial stormwater– think they would fall under the general industrial permit process. The stormwater monitoring committee is discussing this and, in general, feel they should not be treated like other industrial facilities.
• As to maintaining a list: Suggest the list of facilities not be part of the rule, but be made public and open to additions over time.
o Action: DEQ will coordinate with Jeanine Camilleri at DEQ, regarding what kind of analysis will be expected under the industrial stormwater permit.
• Comment: the effluent level for a stormwater permit is 5 times the human health criteria; perhaps look at construction stormwater permit requirements?
• Comment: suggest a requirement for facilities to show that they are meeting requirements at the time their permits come up for renewal.
• Question: why is the quantitation level still unresolved? Can DEQ look more into the near-field 10% dilution and how it would work for the quantitation limit? Suggest including a chart with a few scenarios played out.
o DEQ Response: yes, we can do a dilution scenario. To clarify, we don’t have a quantitation limit for inorganic arsenic. A panel is being assembled that will develop the procedures to identify and periodically revise quantitation limits; this will likely take 2 or 3 months. As a test case, the group will identify the quantitation limit for inorganic arsenic. We need to solidify the procedure used in 2007 and assess how limits can be revised as new technologies are developed.
o Action: DEQ will include current/projected quantitation limits in a table with the revised criteria.
• Comment: The logical place to put the language would be with the toxics criteria. Response from EPA: EPA has become more hesitant to include implementation in the standards rule as opposed to a separate implementation document. If DEQ did include it in the toxics rule, we would need to have that specific discussion internally at EPA but may not act on it as a standard. In the antidegradation policy, unofficially, we think we could safely gauge the “likelihood of being able to take action” on this issue at 90%.
Workgroup members were queried as to their level of support for the document; all showed support for the document as presented today. DEQ staff thanked the subgroup members for their assistance in drafting the language.
Action/Next Steps: Workgroup members were asked to send along any additional comments/edits to DEQ within 2 weeks.
Framework for Implementation Issues
Jennifer Wigal, DEQ, referred the group to the last page of the “Tools and Approaches” document. Workgroup members discussed how the distinction between “can meet for given time” and “needs relief from for a certain time” could be blurry, and the distinction between outcomes for the two categories is very great. Wigal clarified that the actions that lead into the ability to meet effluent limits are what differentiate between the two. Compliance schedules can be granted in instances where dischargers can meet their effluent limits within a specified period of time. Variances can be used in instances where ultimate compliance with calculated effluent limits is uncertain. EPA said that regardless of past practice, compliance schedules can be continued from permit to permit. They intend to require that dischargers adhere to the compliance schedules put forth at the time of permit application.
Action/Next: DEQ will provide clarification of the distinction between when a compliance schedule versus a variance may be the appropriate tool.
Draft Proposed Revisions to Variance Rule
Debra Sturdevant, DEQ, referred to a summary handout that provided revised variance rule language. She said that the revisions try to make this a useful tool with a process that works well so long as the substantive pieces are in place. She added that DEQ hopes this will provide certainty for regulating parties that this is a viable option/tool. She reviewed objectives of the streamlined process for granting variances.
Questions/comments from workgroup members:
• Question: regarding #3, what would trigger priority in scheduling?
o Answer: DEQ would have it as part of the permit process, to align this with other concurrent processes. EPA added that yes, the goal is for better integration of timing and to marry it with the context of the use.
o Suggest add: “re-opener” under #3.
• Question: is there any reason to use the language, “when possible”?
o Answer: the intention is that variances would be issued in conjunction with the permit process. We can add language to clarify how it will be coordinated.
• Question: for multiple discharger variances, how would you prioritize?
• Comment: think there are still problems with the variance option – especially the economic hardship piece, as it would be very tough for some sites to show how there is economic hardship. Are we sure this is the right legal tool for issues that go beyond arsenic iron and manganese?
• Comment: suggest that DEQ clearly state the objective of making the process easy to use - this could be stated in the “overarching goals” section. Suggest DEQ make this a positive statement, put it writing and take it to the public
o Response: There are positive overall goal statements at the top of the one page document titled “Framework for Revising Oregon’s WQS Variance Authorizing Provision” (the page with the shapes on it).
• Question: regarding #3, if a permit is re-opened, do you envision a scenario where permits could be issued without public comment? [Answer: no-this would be inconsistent with federal requirements.] Suggest that DEQ clearly state that this would trigger a public comment period.
• Question: do you envision that variances would apply only to toxics criteria – or would it apply to something like temperature?
o Answer: from EPA’s standpoint, we do not foresee any issue with what variances are being applied to; the state likely has discretion to direct a narrower approach.
• There was some discussion of when the need for ESA consultation might kick in
o DEQ suggestion: for now, begin by focusing on variances as a tool in terms of human health criteria.
• Question: what level of detail and documentation would be required to prove that a variance is appropriate – so far this reads like a full on Use Attainability Analysis which is hard to do.
• Comment: there is some level of concern that not all variance language is nailed down, which makes it hard to consider today’s package. Variances are a big deal and need the full picture in front of us before able to make a decision or comment.
• Comment: from a regulatory perspective--streamlining, clarity and regulatory certainty are important constants for industry. Need to keep thinking creatively about these issues in order to make any good progress.
• Comment: streamlining makes sense, but at the end of the day the real issue is the substantive criteria and don’t see that changing much. The inability to change the variance process (meeting factors 1-6) and how to make them work for an industrial facility is important. A tricky area is where levels are naturally close to 0 and contribution is not much more than 0 (and attributable to historical presence). How would arsenic issues fit with the variance option?
EPA staff said that the feedback provided above will definitely help the agencies develop the next steps of providing a few examples in the areas where people have expressed the most concern and tying in the EPA guidance.
ACTION: DEQ will discuss possible scenarios/examples with Michael and others that can be used to support further discussion.
As time for the remainder of the meeting was drawing short, workgroup members quickly listed the following remaining key concerns regarding variances:
• Understand how process will look, have confidence that process will work
• Regarding 10 years, feel we haven’t heard why 5 years would not be appropriate.
• Under #2 – suggest state that the “department shall require”
• Regarding multiple discharger variances, we need more detail – along the lines of the 2nd category of individual variances
• Under #4 – if a permit term is shorter than 5 years, what happens when permit extended and variance needs to be extended as well/ (A; add – “or until renewal” language)
• Clarify the time limit on renewal: also what if permit is extended and variance isn’t, then what?
• Consider long term consequences of variances. Right now we’re addressing problems with technical and new criteria. Since the rule will stand indefinitely, what next?
• Variance – “source should treat as much as possible” – suggest add language to clarify what they should do better
• Variances applicable to both human health and aquatic life criteria or just human health?
• Question about what effluent limits look like
• Under next steps - #1, how does DEQ include the Rulemaking workgroup?
• Economic issues/reviews - how will DEQ review this without an economist on staff for DEQ?
• No clause included for what happens when variance is not granted – suggest other alternatives?
Discussion with Neil Mullane
The Rulemaking workgroup was joined by Neil Mullane, DEQ. Facilitator Donna Silverberg summarized that workgroup/subgroup members have not been seeing the integration that they thought DEQ committed to – particularly in the DEQ Air area. Also, the timeline for completing work is a concern.
Neil recalled a discussion with the subgroup last week where he had opportunity to review the draft paper the subgroup presented to him. He clarified that his expectation is to join the subgroup in discussing the revisions to the draft and identify a reasonable set of review points to make sure the paper is vetted and then finalize the appropriate language. He noted that he does want to make sure the schedule/set of meetings works for everyone who needs to be involved.
A subgroup member was encouraged that Neil will sit down and discuss revisions to the draft paper. Another sticking point from the morning discussion was about the commitment from DEQ to develop department-wide strategies; with no one from Air and with Larry changing his stance between one meeting and the next; it has been hard to tell what the department is thinking in terms of rulemaking. There seems to be a significant divergence between rulemaking and implementation.
Neil responded that upper-DEQ management have been meeting regularly and discussing exactly these aspects for many hours at a time. He said DEQ does want to connect what is being done in the water quality program with this new rulemaking package. A subgroup member said that the main concern is that the new implementation language will not move forward (it was noted that this concern is based on past experiences.) Another subgroup member added that overall they have been encouraged by the Toxics Reduction Strategy work, but it remains unclear if there will be any rulemaking resulting from the Strategy. Neil said that the answer is yes, but it is unclear what or when.
Individual members clarified concerns for Neil:
o The schedule for completing the criteria and NPDES sections by December; because DEQ still has internal conversations to take place, it is unclear to this group how we will be finished in two meetings.
o Differing expectations about where we’re at and should be in the process.
o The need for clarifying DEQ’s expectations for integrating the various efforts in a way that in useful—sooner than later.
o The need to include more subject matter experts in the discussion of mixed media rule ideas balanced against the efficiencies of keeping such a group small.
Neil responded that it is hard to say who should be involved and Jennifer Wigal, DEQ, suggested that critical people from the broad group should be brought into these discussions. A workgroup member commented that very rarely would a group as broad as the Toxics Stakeholders be the one that put together a proposal for review.
Donna summarized the process ahead:
o The mixed media subgroup will meet again with Neil to discuss the scope of their work and decide who needs to be included in the review of documents.
o DEQ will share a process/status update with the broader Toxics Stakeholder group at their meting on September 28th.
o The subgroup (mixed media) could look at traditional non-point source, pretreatment programs, TMDL bridges to the other sources and assess what can be done within the timeframe regarding air and land. This group should be slightly expanded to get work done. Once done, the work of the subgroup should be taken to the broader TSG. DEQ will provide a written response to this effort.
o DEQ will report to the EQC on what can be accomplished in the near term and identify dates/times for those items that will be addressed later in process .
After a request for DEQ to share what DEQ is thinking about the ‘package’ elements that will be presented to the EQC (i.e. when and what paths they are working on), Neil clarified that the DEQ plan continues to include a package of reduction strategies for water, air and land all together. He reported that via discussions with DEQ Land Department staff, they did clearly identify areas where changes can and will be made. However, for Air, the one linkage that has been talked about is the sources—which is trickier; allocations need to include clear descriptions of linkages that would trigger actions in the air program that would compliment efforts in the water program. A member asked whether, if the rules sufficiently link the air and land, DEQ could put together a relatively short paper that summarizes the air/land pathways that affect water quality? The subgroup could then lay out additional rules and/or options that address them. If DEQ could put these ideas on paper, it would definitely help the stakeholder group, EQC Commission and the public understand the process.
Neil acknowledged that he had heard there is a communication issue about what the agency is doing and has done in the Toxics Reduction Strategy. He also heard there is a shared sense of not having enough time with regard to the goal of having the February EQC package completed and the uncertainties around the public comment period following the February EQC meeting. He asked workgroup members for feedback on shifting the projected timeline for this effort, now or via email:
o Kathleen Feehan, CTUIR, responded that the tribes will have issues if the timeline shifts away from the final product being delivered to the EQC in October 2010 as planned. The tribes would need to consult with DEQ if they think this might change.
o Peter Ruffier, League of Oregon Cities, clarified their expectation that there will be continued progress toward toxics control and they don’t want to lose the implementation aspect because of time spent developing rule language. Okay with revising the schedule if absolutely needed.
Summary of Action/Next Steps between now and the 10/19 Rulemaking meeting:
• DEQ will pass on more details regarding the EQC meetings as they become available.
• DS Consulting will work with DEQ staff to provide the Rulemaking Workgroup and Toxics Stakeholder group with clarifications on process and updates / milestones ahead.
• DEQ now has additional staff resources to assist with the NPDES / permitting tools.
• The subgroup’s meeting schedule will be developed via email/doodle scheduling.
• DEQ will coordinate with existing multi-media subgroup members about scope and adding people to the subgroup discussions / document review process.
• DEQ will send out a reminder to the workgroup to submit comments on the anthropogenic sources criterion language via email within the next two weeks (by September 29th)
• DEQ will provide an update on the RWG process at the September 28th Toxics Stakeholder meeting.
Next Rulemaking Workgroup Meetings: October 19th & December 9th
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.