FIIAC Agenda Notes 3-5-08

Oregon Fish Consumption Rate Project

Fiscal Impacts and Implementation Advisory Committee

Meeting 2

Wednesday March 5, 2008

9:00-4:30

Location: **US EPA - Region 10 (503 326-3250)

805 S.W. Broadway, Suite 500

Portland, OR 97205

Proposed Agenda

Purpose of this meeting: To hear and share information necessary for the FIIAC to do its work, answer questions that members may have, and begin to formulate next steps.

9:00 Get Settled, Welcome and Introductions—Donna Silverberg, Facilitator

9:10 Follow-up from Meeting 1

• Clarify Charter Revisions

• Other

9:30 Setting the Stage for FIIAC: A number of presentations will be shared that provide all FIIAC members with the information to help shape their discussions and work.

• 9:45 WQ Impacts—Neil Mullane, DEQ

o Relative Contribution Information—Kevin Masterson, DEQ

o Toxics Monitoring in OR—Neil Mullane, DEQ

o Contaminants of Concerns, Agnes Lut, DEQ & Deanna Conners, DHS

10:30 Break

• 10:45 Cost Analysis: NW Pulp & Paper Asso.

• 11:30 Cost Analysis: ACWA

12:15 Lunch on your own

1:00 Discussion about SAIC Analysis: Last meeting the group received a copy of the SAIC analysis. Are there questions or comments the group wants to make?

• Next steps: Analysis of Implementation Options? Analysis of Non-Point Source Controls?

2:15 Questions and Answers on above/Discussion time—Does the group need more info needed?

2:45 Break

3:00 Discussion and Brainstorm about Potential Benefits: Last meeting the group discussed that there may be a variety of benefits that could flow from an increased FCR. This agenda time will be used to develop a list of what some of these benefits might be and how, if necessary or desired, such benefits might be analyzed for this process.

4:00 Next Steps

• Assignments

• Next Meeting; April 8^th. After that? (schedule)

4:30 Adjourn

Oregon Fish and Shellfish Consumption Rate Project

Fiscal Impact and Implementation Advisory Committee (FIIAC)

Meeting Summary

March 5, 2008

In attendance for all or part of the meeting:

Members: Deanna Conners (DHS), Kathleen Feehan (CTUIR), Rich Garber (Boise, Inc.), Dave Kliewer (ACWA), Sarah Kruse (Ecotrust), Kristin Lee (ECONorthwest), Eric Scott (Grand Ronde Tribe), Willie Tiffany (League of Oregon Cities), Kathryn VanNatta (Northwest Pulp and Paper Association)

Resource Advisors and Others: Tim Connors (on phone, EPA Headquarters), Agnes Lut (DEQ), Kevin Masterson (DEQ), Neil Mullane (DEQ), Jordan Palmeri (DEQ), Mary Lou Soscia (EPA), Ryan Sudbury (CTUIR)

Facilitation Team: Donna Silverberg and Robin Gumpert, DS Consulting

Welcome, Introductions, Follow Up from Meeting One:

After a round of introductions, members of the FIIAC gave a final review of the proposed Charter, and, with the following edit, finalized the document by consensus:

• Remove Task #1 re: review and provide input on the initial scope of the SAIC analysis, as this was completed prior to the convening of the FIIAC.

• (Note: A change was made to the schedule section in the Charter to reflect that the third meeting date was set for April 8 and a fourth meeting will be held in mid-May.)

A request was made to expand the brainstorming session on the agenda to include innovative ideas for implementation. Mary Lou Soscia, EPA, suggested that some off-line work with co-chairs Kristin Lee, ECONorthwest, and Sarah Kruse, Ecotrust, resulted in an initial list of potential ideas that could be explored that might help expand the discussion as well (see below).

It was also clarified that an additional meeting might be needed after April 8 and prior to the October EQC meeting. Neil Mullane, DEQ, noted that, while the final proposal to EQC on the FCR will be presented in October, the work of the FIIAC might be best served by adding it as an informational item to the August EQC meeting to give commissioners background similar to that which they received from the Human Health Focus Group in October ‘07.

Setting the Stage for FIIAC’s Work Together

Background information was provided on a number of issues related to fiscal impacts and implementation that was meant to serve as a baseline from which FIIAC discussions and work will begin:

Setting the Stage: Water Quality Impacts:

Neil Mullane, DEQ, began by noting that DEQ continues to seek additional information on water quality data and, while that information is not comprehensive, the available toxics data is relevant and useful to the agency. Kevin Masterson, DEQ, provided information on current toxics monitoring being conducted in Oregon. He said that some areas are more data rich than others, due to the opportunistic way in which the monitoring gets prioritized. He noted that most of the toxics data can be found in the Willamette Basin. Additional monitoring in the Columbia and elsewhere is done by USGS, the Lower Columbia Estuary Partnership and EPA. Kathryn VanNatta, NWPPA, shared that NWPPA has done a toxics review study as well and offered to share the report with members of the FIIAC. Rich Garber, Boise, added that the National Council for Air and Stream Improvement (NCASI) completed a trend analysis in approximately 2004 of publicly available toxics fish tissue data in the Columbia, and that the results would be shared with the committee.

o Action: EPA will add these studies to an appendix list in their Toxics Reduction Strategies report that includes all the known available toxics information.

▪ Parking Lot Issue: A longer term need was identified for a data base containing all water quality toxics information for the Northwest. Access to reports on a website is a good first step (DEQ is working in conjunction with several other partners to develop a Pacific Northwest Water Quality Data Exchange portal. The NWPPA study mentioned above will be added to the database.)

Kevin cautioned that several factors need to be considered when attempting to make generalizations across the state based on the various types of data collected in specific areas – including trophic levels, varying advisories from agency to agency, anadromous fish, size and type of fish, type of sampling, etc.

o Action: Deanna Connors, DHS, will share information about DHS’s fish advisory limits for mercury, dioxin and other toxics.

o Action: DEQ will follow up with FIIAC on the various maps presented during the discussion, to inform where each of the values came from.

o Request for Information: That relates to mercury levels relative to specific land uses, e.g. agriculture. Does anything exist? DEQ plans to do a ‘land use source analysis’ to determine where pollutants are coming from.

Mary Lou Soscia, EPA, added that data is often poor in specific areas so they are funding DEQ to add monitoring stations in the Columbia River above Bonneville Dam.

Action: Ryan Sudbury, CTUIR, will look into point source/sediments data that EPA might have collected in the Columbia River.

Masterson provided an additional document on ‘possible sources and pathways’ of toxics that he developed on behalf of DEQ. He noted that not a lot of rigor has been put into investigating sources and pathways for toxics. Of all the toxics, mercury has been the most closely examined. The states are working toward more strategic identification of and targeting critical toxics based on consumption and other factors.

Agnes Lut, DEQ, shared additional information about contaminants of concern, including the work of the Toxics Reduction Working Group who produced a matrix of prioritized toxics for the Columbia River. Focused work is planned for all Tier One toxics, plus arsenic, lead and copper, in 2009. A FIIAC member asked if a fish to fish comparison could be done and suggested that additional funding might be provided to target those fish that we know have a higher human consumption rate. EPA plans to collect information from Grand Coulee Dam to McNary Dam using human health data, and is hoping to match funds for the work. Kathleen Feehan, CTUIR, suggested that the tribes are interested in having these discussions as well and that treaty fish information could be collected from the tribes. DEQ needs comparability of studies between lower and mid-Columbia.

Action: Deanna Connors, DHS, will share Oregon’s toxics advisories list with the FIIAC.

Setting the Stage: Cost Analysis – NWPPA:

Kathryn VanNatta, NWPPA, and Rich Garber, Boise Inc. (formerly Boise Cascade), shared information from a NWPPA cost analysis report that was developed beginning in 2006. As such, the current range of FCR numbers was not available at that time and therefore not specifically considered in the report. Findings from the report that were similar to that of the SAIC analysis were that metals are a driver for detection and those highest detected are mercury and arsenic. She noted that NWPPA interprets its obligation under the Clean Water Act is to comply with water quality standards even if toxic levels are less than detectable at the effluent or water column. Because of this, this was an area where the two analyses diverged.

Parking Lot Issue: Technology used to remove metals is expensive – how much of a concern are metals from a human health perspective?

Kathryn shared information about various toxics found at NWPPA sites and the costs for control and removal technology methods that could be or are used to address them. She noted that the cost estimates included were for general guidance and would need more refining.

Question: How could we draw comparisons between the technologies noted in the NWPPA report and the selected facilities from the SAIC report? Answer: Two of the seventeen facilities analyzed in the SAIC report are pulp and paper mills, and one of those mills is jointly permitted with a municipal discharge. However, the SAIC report does not differentiate between facility type as the NWPPA report does (e.g. bleached, unbleached, deink, newsprint). Therefore, from NWPPA’s perspective, not a lot of comparability can be done. It was noted by several members of the FIIAC that the SAIC cost analysis should evaluate more industrial dischargers.

Kathryn clarified that under current Oregon NPDES permitting guidelines, point sources are generally responsible for both intake and discharge of water even if no pollutants have been added. Also, that if water quality standards are lowered further, it would likely be necessary to provide for ‘pass through allowances’ where toxic contaminants of concern are brought in with intake water and not added by the point source. This would be necessary to alleviate some of the burden placed on industry and other point sources.

Question: More stringent compliance or loss of ability for dilution in a NPDES permit could result from more stringent criteria. Are the costs in the NWPPA report associated with worst case scenarios? Action: NWPPA will review the analysis and respond to this question.

A key difference noted between the SAIC and NWPPA analyses was that the SAIC analysis was based on current on the ground conditions (although DEQ acknowledged that the current “baseline” of 17.5 g/day FCR had not been implemented in most NPDES permits statewide, nor had reasonable potential analyses been fully incorporated into permits) and NWPPA’s was based on future projections. A need was identified for common language and understanding moving forward in the discussion. One suggestion was to consider a range of costs from different drivers relative to their affect on Tier 1 and 2 contaminants. DEQ noted that mercury would be impacted by a change in the FCR, and that some other toxics would be affected by aquatic water quality criteria that are established separate from this FCR process. NWPPA added that while this may be true, technologies cannot link to just one toxic and that industry makes decisions based on the broader context of compliance.

Question to DEQ: If the FCR were changed to the high end of the range used in the SAIC analysis, would this drive a change in regulation of metals? Response: The human health criteria for the metals mercury, nickel, arsenic, selenium are more stringent than the aquatic life criteria. Therefore, any change in the FCR will continue to lower (make more stringent) the human health criteria for the aforementioned metals. Other metals, such as chromium, copper, lead, zinc, and silver, all of which are hardness dependent, have more stringent aquatic life criteria than human health criteria at the current FCR of 17.5 g/d. DEQ has not performed the calculations to determine if at higher FCRs the human health criteria will drive compliance instead of the aquatic life for all hardness dependent metals. The contractor, SIAC, states that for the majority of the metals, the aquatic life criteria will still drive compliance at higher FCRs. DEQ needs to check to see what hardness values SAIC used to make those determinations before they can be certain of the results.

NOTE: more discussion will be needed on this issue when the FIIAC develops implementation ideas.

Question: Did the NWPPA look at the cost of pollution prevention strategies? Industry does look at this but did not provide cost estimates in its report. Anecdotally, they believe the SAIC analysis underestimates costs for implementation of pollution prevention studies.

Action: VanNatta will send a copy of the handout provided at the meeting to Tim Connor, EPA.

Action: NWPPA will check to see if a refinement to their analysis can be done that would link costs to a range of FCRs being considered through this process.

Setting the Stage: Cost Analysis – ACWA:

Dave Kliewer, ACWA, shared an overview from the clean water agencies’ perspective on toxics concerns and costs. Metals and organic chemicals are of highest concern. ACWA puts emphasis on pretreatment programs and pollution prevention. ACWA estimated that micro-filtration and reverse osmosis technologies to address metals would cost between $2.5 million and $3.5 million per million gallons per day, assuming some portion of the final effluent to be blended prior to discharge. Without blending, costs were estimated at about $6 million to $15 million per million gallons per day. Based on these cost estimates, the ACWA information showed a capital cost range of $2.3-$3.3 Billion for the four largest wastewater treatment systems, including Portland, Clean Water Services, Eugene/Springfield and Corvallis. They noted that there are 75 major publicly owned treatment works (POTWs) in the state (cost estimates did not include these other POTWs).

Question: Is it possible to step incrementally toward improvements by starting with micro-filters instead of leaping immediately to reverse osmosis (RO)? While ACWA did not consider this in their analysis, the group agreed it is worth a closer look. It was stated that the degree of biological fouling that may occur to RO membranes may require that the filtration step be used in front of any RO processes used in wastewater treatment.

New ideas for pollution prevention, and associated costs, were also shared in the handout Dave provided.

Question: What was the baseline from which the analysis was done? Answer: Current compliance, which for many sites is 6.5 grams/day. Dave noted that generally, compliance is not measured to a desired level, so the analysis was not conducted to be that precise.

Question: Can you describe state revolving loans that are used to support water quality compliance investments for municipalities? Answer: Municipalities may receive ‘loans’ to make changes in technologies which support compliance. These then get paid back to the state. Total funding available for the entire state is around $30 million to $40 million a year. Smaller communities are most impacted by high costs as they often need to piecemeal funding from various grants to make the changes and then pay the state back. In turn, citizens may be impacted by an increase in rates if new technologies are required to come into compliance.

Similarly, how are small businesses affected? Typically, small businesses are required to manage pre-treatment, and may be regulated to comply with more stringent regulations. This varies community to community. A request was made to take a refined look at impacts to customers.

Question: Why is there not a difference in cost between, e.g., 169 grams/day vs. 400 in the ACWA analysis? Answer: At this point, a cursory explanation was given for blending vs. no blending. In addition, new technologies would cover a wide range of rates once ‘turned on’, so the cost of compliance would not change. Municipalities, like industry, must operate to meet ‘worst case’ compliance under all discharge scenarios.

Discussion continued around the SAIC, NWPPA and ACWA analyses and questions were raised again about the possibility of incremental steps toward compliance for a higher numeric FCR. Regulatory and legal certainty is critical to industry and ACWA given the litigiousness of the current state of CWA issues in Oregon. Oregon has had difficulty with narrative standards and legal challenges, and, it was noted that an opportunity has been presented to this FIIAC to recommend setting a precedent with a new way of formulating the standard. Neil Mullane, DEQ, noted that setting specific criteria for specific sites could pose a challenge to obtaining legal certainty. He added that there is not a single method to get at standards for various toxics and, through monitoring and continuing education, DEQ is changing how they do this work.

Question to EPA: Would EPA accept development of a pollution prevention plan and incremental implementation improvements prior to going to reverse osmosis, as a part of compliance schedules? Answer: EPA would need to work out legal issues around that, and, if legal issues could be addressed, might be supportive of moving in this direction. It was noted that there is currently a challenge to Oregon’s use of compliance schedules. Neil Mullane stated that he was not able to comment on that litigation, or on the efficacy of compliance schedules at this time.

SAIC Analysis Discussion

Members of the FIIAC had an opportunity to review the SAIC analysis that they received at the last meeting and provided initial comments to Tim Connor during today’s meeting. Comments subsequent to today will be shared in writing via email with Tim, and copied to all FIIAC members. Tim noted that he is not representing EPA or SAIC on this work but rather is assisting the state with an analysis to help inform decisions for a new FCR.

Action: Tim will check that statistical representativeness is included in the report and, if it is not, will add it in. He will follow up with Sarah Kruse, Ecotrust, on her specific question about this.

Generally, comments discussed during today’s meeting included requests for information about costs associated with non-point sources, legacy contaminants, small facilities, 303(d) listings, TMDLs, new technologies, legal and regulatory certainty, and small business. In addition, it was suggested that some costs appear to be underestimated, e.g. pollution prevention and treatment system control technologies. Using 17.5 grams as the baseline for the analysis was supported by the group, as was the section addressing pollution prevention. It was also suggested that a table of practical quantification limits (PQLs) be included for fish consumption rates. Finally, a suggestion was made to share more examples from other states that have more stringent water quality standards in place and address how they deal with statewide or site-specific variances.

Action: All written comments will be shared with the FIIAC and Tim Connors – members were asked to send their comments to the facilitation team at robin76@cnnw.net by Tuesday, March 11. Co-chairs Kristin Lee and Sarah Kruse will synthesize the comments into a ‘highlights’ list for ease of review. Tim will get feedback to the FIIAC on how he can/will respond to the comments, prior to the April 8 FIIAC meeting.

Next Steps

Development of Further Information to Support FIIAC – Mary Lou Soscia, EPA, reported that she met with Kathleen Feehan (CTUIR), Sarah Kruse (Ecotrust) and Kristin Lee (ECONortwest) to discuss additional information that could be provided to support the FIIAC’s work. She provided a handout with three main topics: non-point sources, regional implementation or watershed based strategies, and economic benefits analysis. Members of the FIIAC shared comments on the list.

Action: A sub-group of Mary Lou, Tim, Kathleen (or Ryan Sudbury, for CTUIR), Kathryn, Rich (for AOI), Sarah and Kristin will meet to further refine the scope of work for additional analysis which will be developed into a contract by EPA. Mary Lou will email the scope to the FIIAC prior to, and then discuss it at, the April 8 FIIAC meeting. She noted that the work on the contract will likely be underway at that point. (*NOTE: This same group will discuss FIIAC comments on the SAIC analysis with Tim.)

Discussion and Brainstorm about Implementation

The group spent the remainder of the meeting brainstorming ‘creative implementation and water quality standards setting ideas’. Ideas are summarized in bullets below – and need to be further refined/discussed at the next FIIAC meeting:

• Use a two-pronged approach: 1) Higher FCR for ‘Tier One’ pollutants that are most problematic from a human health toxicity standpoint, 2) Separate FCR for metals and others that do not drive the human health risk

o Don’t focus money and technology on non-priority toxics

o Would not include mercury or arsenic in ‘Tier One’ pollutants

o Pollution prevention would be targeted for both tiers/prongs, including mercury

o This approach would be sensitive to limited resources while at the same time addressing problem areas

• Focus on risk driving pollutants – pollutants that affect human health

o Identify sources and develop pollution prevention program around risk drivers

o This approach would allow time for 17.5 grams/day to take effect on the ‘non-priority’ pollutants

• Explore ways to control methylation of mercury

• As a principle, develop implementation strategies that will get the most bang for the buck

• Build in follow-up/ground truth (i.e. monitoring and evaluation) of the pollution prevention approach

• Agencies should check out whether or not pass through credits, UAA, variances and ‘deminimis’ will be legally defensible given Oregon’s legal and political context

• Use one FCR for all human health pollutants

o If a point source discharges a PBT, impose a limit

o Look at accumulation rates in fish tissue: If there is a detection of a parameter that is not a PBT and it is not believed to accumulate in fish tissue, and the permitee can prove that the parameter is not causing a problem to human health, then employ an alternative approach to end of pipe limit.

• Develop a narrative approach to the standard with an iterative process attached. Increased FCR would be used to develop “benchmarks” for toxic pollutants and incorporated into permits.

o Set checkpoints/review for new ideas and approaches and off ramp options

o Include pollution prevention programs

Discussion and Brainstorm about Potential Benefits

Discussion on benefits was deferred to the April 8 FIIAC meeting.

FIIAC Schedule
The group agreed on the need to meet once more after April 8, before the June 4-5 workshop at which the work of the FIIAC will be discussed with the public. Additional meeting date options in May were later explored offline, but have not yet been confirmed.)