Oregon’s Toxics Standards Review Project

Rulemaking Workgroup Session #1

14 January 2009 12:30-5:30pm

DEQ Headquarters

811 SW 6^th Avenue, 10^th Floor

Portland, OR 97204

12:45 Meeting Began

Donna Silverberg introduced herself as facilitator for the group and welcomed everyone. Attending members were introduced and we began with a broad overview of the purpose and drive of today’s meeting.

Topic: Workgroup Membership and Purpose

Goals:

•  To discuss the issues behind the rulemaking

•  To group members: What do you want DEQ to know?

•  To establish an understanding of our roles

Greg discussed representation of organizations and the make up of group. He noted that DEQ wanted to work with a small group of people who represented diverse organizations with a high interest and knowledge of the topic. He noted that the Oregon Environmental Council is unable to send a representative at this time and asked that the group consider: who else should be represented that is not here?

Jennifer spoke of DEQ’s optimism and expectations for this effortfrom the group.

What can be expected of DEQ?

•  Make sure everyone’s involved

✓  We will find someone to replace Theresa Huntsinger from OEC (she will be unavailable).

✓  We will find a replacement for Greg Geist (Greg will transition to a new position at the end of February).

What is DEQ’s focus and direction for this group?

•  To share advice and ideas about how toxics reduction can occur and how to address them in the context of this rulemaking effort

•  Work with our partners to share ideas, thoughts, and reactions, input, etc

•  Not looking for consensus, but advice and your input

•  Help connect to broader stakeholders group

•  Utilize the skills of other inside DEQ to add ideas and integration within the agency, for example Kevin Masterson and Cheryl Grabham will be part of the discussions

•  Help the group understand what is within scope of rulemaking—and make connections as appropriate to the broader toxics work at DEQ

•  Greg will discuss in more detail about the topics we want to address

•  See also “Charge of the Group” on the “workgroup members” handout

Issues Raised

 Q. Will connection back to other programs coordinating happen through Kevin Masterson?

 A. Yes, and this will be topic specific as needed, from both Kevin and Cheryl.

 Q. Science – who is the resource at DEQ on the background science and recalculations?

 A. Greg will touch on this. DEQ and EPA both have staff resources available to support this.

 Q. Does DEQ have a set view of what will be addressed as standards or is this flexible? A

secondary concern is for the limitations of DEQ’s focus.

 A. Our focus will be limited to Water Quality

Q. Does this mean door is not open for innovation between divisions and/or collaboration with the air and land programs? Will a broadening of rulemaking topic be possible?

A. The door is open for innovations in the water quality standards. And we intend to involve the key staff from those other areas so we can make links as and where possible and we need to be realistic given budget and time constraints.

Greg initiated a discussion of project management and timetables for the rulemaking.

•  Our goal is to have this drafted by mid-June this year, with rulemaking done by mid-2010

✓  known issue: this date will need to be moved out but the details are still being worked out

•  The pieces of the project include: DEQ team, The Small Rulemaking Group, the Broad Stakeholder Group, development of rules and policy, public hearings & peer review, leading to an overall toxics reduction strategy

Topic: EPA Review and Approval Authorities

Jannine spoke briefly about EPA Approval Authority, its background, and why this is on the agenda. There is confusion at the state and federal level, facilities, and environmental groups on this.

Issues Raised

Q. How much does EPA involve itself with Standards?

 A. EPA strives to eliminate confusion on the question of involvement (see Handout,

“Water Quality Standards – Authorities, Definitions, and Considerations”). Everything that

DEQ labels/packages as a standard may not reflect the EPA definition of a standard.

 Q. What are the implications of this?

 Q. Are the last category items off the table? (I’m not sure what the ‘last category’ is. Can you

explain this more to remind those there and those not there?)

 A. For” verbal purposes”, this is true – these items are off, but lawyers prefer not to

state this as such.

 Q. Will EPA be able to comment on the viability of standards?

 A. That is EPA’s goal

In discussion of the EPA’s role, Charlie Logue stated that the implementations provisions are confused because it’s his understanding that implementation was a vital part of rulemaking. Jannine stated that the EPA has to look more closely at how it all fits together, but for most of the implementation, the EPA does not formally comment. EPA does understand that implementation is critical to DEQ and the other participants and will help as possible.

Topic: Workgroup Administration – “Scope of the Rulemaking”

The discussion centered on the protocols for discussion (see Handout, Discussion Protocols)

Issues Raised

Q: Are we looking for consensus or not?

A: [From DEQ] We know that we’re not looking for consensus, but the more agreement

that can be reached, the better…complete resolution of all the issues may not be possible, but if we leave the door open to that happening.

Concern was raised about the potential for the lack of consensus to be a stumbling block to rulemaking. The point was raised from one person that this is not called an advisory committee, but a work group- which is more accurate for the function of the group? The lack of consensus for some was perceived as leading to a narrowing of the scope of the rulemaking, when a broader scope is needed. Rich Garber suggested a change to the language of #6 (Protocols) to allow for consensus to be achieved. Nina Bell stated that she was fine with language, but worried that majority reporting would be destructive to hammering out ideas and detrimental to discussion. Jennifer made a point that the DEQ won’t let a lack of consensus “hold us hostage”. D. Silverberg asked for agreement on Rich’s addition which would allow the group to seek consensus wherever possible. She suggested that in past consensus-seeking rule making groups they agreed to provide a notation in their final report on any ‘lack of consensus’, if needed, on particular issues –thereby leaving it to the Commission to decide.

Issues Raised

Q. Will the DEQ note lack of consensus to commission?

A. We will have meeting notes on our proceedings.

Q. How innovative can we be? Q. What is the timeframe?

A. In the framework of six months we’ll be doing a check in halfway. The Commission is very interested in this and the DEQ will be guiding what it feel is appropriate to focus on.

Greg Geist turned the discussion to focus on the scope of the rulemaking. (See agenda/handout “Scope and Outcome”) The group has scheduled/budgeted for seven work sessions (Handout, HHC Rulemaking Workgroup Topics). The most complex topic will be connections to outside the NPDES program. Today discussion is needed on what is and what isn’t a part of this rulemaking.

Greg touched on four initial topics for discussion:

•  What pathways for innovative options/actions?

•  What is a standard; what is a permitting rule?

•  What are our Implementation strategies?

•  Did we miss something? (Let us know).

After a review of tasks and discussion topics, Greg asked what the initial thoughts of the group were. The group noted that topics 3 & 4 will need multiple sessions—it was clarified that likely issues will be introduced at one session and dealt with in more detail at the next. One member also commented that DEQ should consider that issue 6 (economic impacts) should be addressed by a group other than this one.

There was a request for clarification on how the DEQ sees these rulemaking packages. Jennifer talked about amending both the permits (Division 45) and water quality standards (Division 41) sections of the OAR, as appropriate and as identified through this process, and that any revisions to those parts of the OAR would be made concurrently and travel together through the administrative and public processes. Jannine gave further explanation of how DEQ and EPA will work in conjunction for state and federal rules.

Issues Raised

Q. Will EPA be sharing its thoughts with the group as we move through?

A. Yes.

Q. What is the EPA’s role in this group? Can EPA be more involved with the discussion rather than the “dictate from the mount”? The more that EPA gets involved, the better.

A. EPA agrees and is striving to be more involved from the beginning and throughout the process with the most transparency possible to prevent wasting time and effort.

Q. How might this rulemaking clash or be redundant with other rulemaking sessions in other divisions? How do we ensure we are not wasting time on redundant actions?

A. DEQ has sifted through what other things are out there in an effort to eliminate redundancy.

Q. Do we have data on individual Constituents of Concern (COCs)?

Q. Are we going to talk about TMDLs, emerging pollutiants, or stick to current listed pollutants addressed? We would like these discussed.

 A. The DEQ does address these in part.

Q. Which toxics, pathways to outside COCs?

A. The DEQ uses the criteria under the CWA and other variables. This rulemaking is based on the Fish Consumption Rate Criteria; SB737 is beyond the scope of human health criteria.

Jannine suggested that perhaps we put this down for the group’s next discussion. The statement was made that the group will eventually want to know what the term “toxic substances” encompasses. Jennifer stated that the DEQ is focused on Standards criteria and has not to date considered a broader scope, but that it may eventually encompass more.

Issues Raised

Q. Does the DEQ see it as our role to bring specific toxics, inside or outside, to the table?

One group member said “yes”, and discussion followed on this topic. It was noted that this could be a point of tension with the desire to be broad, and the need to be specific…

It was requested that at some point the terms “doors” and “pathways” be defined so everyone understands the metaphor being used.

Topic: Overview of Water Quality Standards and Approach for Arsenic Review

Deb began an overview of water quality standards and the DEQ’s approach for arsenic review (see handout “Scope of HHC”. She stated that the DEQ is not planning to add criteria to those already published; that would need to come from EPA if so desired. For new Fish Consumption Rate, the DEQ wants to look at naturally occurring earth metals which are very high (this is an EQC mandate). Discussion followed on the scope of policy and sciences

Topic: Overview of Permitting Provisions

Mike Wiltsey begam a brief discussion of permitting provisions and how standards translate into permits. This will impact individual permits but could refer also to industrial at renewal.

As a point of clarification, it was noted that between the COCs on EPA Table 20 and EPA Table 33a, the DEQ will be able to use the more stringent values even in advance of an EPA ruling. We are allowed to put a post date and expected date of approval.

Wrap Up

The group wrapped up with a discussion of scheduling for future meetings. A tentative agreement was reached for February 9 and March 2.

Issues Raised

Q. Are we going to address stormwater?

A. It wasn’t really addressed. Should we include it?

Greg asked for feedback to be submitted within one week and DEQ will work toward amendments by the next meeting.

Meeting adjourned at 5:30pm