Oregon Fish Consumption Rate Project

Fiscal Impacts and Implementation Advisory Committee

Meeting 4

Tuesday May 6, 2008

9:00-3:30

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

805 S.W. Broadway, Suite 500

Portland, OR 97205

Conference Call-In Number: 866-299-3188 Conference Code #6662510532

Proposed Agenda

Purpose of this meeting: To hear, share and develop information relevant to the FIIAC’s work.

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

9:10  Follow-up from Meeting 3

•  Update and follow-up on SAIC Cost Analysis work, including DEQ’s comments and intentions; and next steps on the analysis contract

•  DEQ/EPA/CTUIR Representatives will share their thoughts on a fish consumption rate number/value around which they have begun to coalesced

•  Other

9:40  Implementation Inventory

•  Members will have provided input to the Implementation Strategies Inventory and be prepared to discuss refinements.

12:00   Lunch on your own

1:00  Continue Implementation Inventory Discussion

1:45  Road Map for the FIIAC

•  FIIAC members will review the proposed June 3 and 4 workshop agendas, discuss content and format, and determine what needs to happen to get there

•  A draft outline for the final FIIAC memo will be discussed

3:00  Next Steps

•  Assignments

•  Next Meeting: Friday, May 23rd

3:30   Adjourn

Oregon Fish and Shellfish Consumption Rate Project

Fiscal Impact and Implementation Advisory Committee (FIIAC)

Meeting Summary

May 6, 2008

In attendance for all or part of the meeting:

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

Resource Advisors and Others: Tim Connor (on phone, EPA Headquarters), Janet Gillaspie (ACWA), Neil Mullane (DEQ), Socorro Rodriguez (EPA), Mary Lou Soscia (EPA), Jennifer Wigal (DEQ)

Facilitation Team: Donna Silverberg and Robin Gumpert, DS Consulting

Follow up From Meeting 3

SAIC Cost Analysis work: Jennifer Wigal, DEQ, provided an update on the status of the SAIC economic analysis and DEQ actions. A draft response to FIIAC comments has been shared with DEQ, who planned to share its comments by the end of this week (May 9), and then share any revisions with the FIIAC within a week after that. Jennifer shared that general guidance from DEQ for additional work would focus on statutory requirements, to the extent possible given available resources. Further analysis of cost implications associated with the PQL (practical quantitative limit)/end of pipe criteria will be done. DEQ has also requested options for additional industrial facilities that are known to have data that could be included in the analysis to make the analysis more relevant and representative. Jennifer specifically asked FIIAC to provide facility candidates that would help expand the certainty sampling in the SAIC analysis. Finally, she said DEQ will ask to include cost for treatment technologies that would be applicable to treat those contaminants that showed up in the facilities that were studied.

Jennifer reminded the group that this phase of the Oregon Fish Consumption Rate Project work is focused on fiscal impacts; implementation strategies; and cost benefit information. SAIC will focus on just the fiscal impacts, while the FIIAC could work on all three elements – filling any information gaps on fiscal impacts that the SAIC analysis does not cover, brainstorming implementation strategies and providing any cost benefit information that could be used to inform the EQC in making its final decision.

FIIAC member questions:

•  Will the results of the SAIC report be ready by our next meeting (May 23), or in early June prior to the public workshop? Response: It will depend on how much additional data analysis SAIC conducts. Tim Connor will share with DEQ whatever has been completed in time for FIIAC members to review and discuss it before the public workshop (this is expected by May 23). Tim suggested SAIC will do their best to get as much done as possible, and that this work is a priority for SAIC.

•  Regarding response to FIIAC comments: Is there more SAIC will add from our comments? Response: Yes, including clarifications of data sampling, formatting, implementation components, treatment costs and dilution information. All responses will be included in track changes for easy comparison with older drafts.

•  How would adding additional businesses to the analysis impact the statistical significance of the data? Response: SAIC is most interested in looking for relevant, high flow facilities that have data. This is more important to SAIC than ‘statistically significant’. Tim suggested that certainty of sampling (choosing facilities that actually would be impacted by the fish consumption rate) would make results more relevant, and would not change statistics.

o  DEQ will be supplying information and encouraged FIIAC members to contribute candidate facilities as well.

o  One FIIAC member suggested that pre-treatment facilities were worth looking in to – they may not be high flow but there are many of them, and would be a significant contribution to the report. (DEQ responded to this suggestion that it depends on what is coming in to that facility and whether the human health requirement impacts that particular small business – based on specific pollutants.)

o  SAIC and DEQ reiterated that any new data is welcome and both agencies share an interest in developing as quantitative an analysis as possible.

ACTION: FIIAC members will share any new data/information as soon as possible, preferably within the next week. New information could be folded in later if necessary.

•  What is DEQ doing to gather this information from other businesses and NPDES dischargers? Response: Many other dischargers don’t have the data collection that would be useful to the report. DEQ honed in on those that had data from a long list of potential discharging facilities. NWPPA noted that their industry is currently working with a contractor to gather data and that a draft might be ready to share with FIIAC on May 23. Many other industries are not collecting data and it was suggested that DEQ should consider, and has an opportunity to capture, these industries through this process. As a ‘small business state’, the cost impact picture in Oregon is unique. Mostly pre-treatment facilities, e.g. aluminum, high tech, aerospace, etc. make up much of the industry here. DEQ and affected parties might not understand how a cascading impact could occur and where the individuals fit in. A cost analysis of this is needed.

o  ACTION: Rich Garber offered to share information to input to the analysis.

•  The FIIAC charge was to include small business in the economic analysis component of this process – and that has yet to be done. We should remove it from our charge if we are not as a committee going to look at this. Response: SAIC, at a minimum, will be including a small business narrative given the lack of quantitative data; Tim noted that they have discussed small business extensively and are doing their best to respond to the comments shared from FIIAC. Other FIIAC members noted their belief that it is possible to gather information on small businesses and, from a broader cost of service analysis, attribute a portion of that to small business.

Fish Consumption Rate Number/Value: Neil Mullane, DEQ, shared that the three governments met in April to discuss the Human Health Focus Group information, DEQ’s internal analysis/ranges and public comments that were shared at the last public workshop. The governments focused discussion around the question of a fish consumption rate number that would address several key issues under consideration, e.g. inclusion of salmon in the rate, one that includes consumers, and a rate that has been used/adopted elsewhere. Given this, they ‘coalesced’ around 175 grams/day. He emphasized that ‘coalescing’ was an important and intentional aspect of their message to partners as it signifies that the governments have not finalized their recommendation, but have a general shared sense of what number is looking viable to them.

Kathleen Feehan, CTUIR, added that 175 grams/day was considered a reasonable regional number as a result of the small group discussions at the public workshop. It focuses on consumers only, uses local data to the extent available (the 95^th percentile from the CRITFC study), is informed by regional data, and was in response to the need to choose a number that participants in this process can continue to do work around. This was a value key tribal stakeholders could focus on to help them use resources more wisely and effectively. The CTUIR Board of Trustees said this was a tremendous step forward toward protecting its tribal people.

Mary Lou Soscia added EPA’s view that the state and tribe coming together is a successful accomplishment, and that 175 is a number EPA can work with. In addition, EPA needs a commitment for a toxics reduction strategy and is committed to working with everyone on this.

FIIAC member Questions and Comments:

•  Does the Warm Springs Tribe have a permit for their fish consumption rate? Response: Yes -- Jannine Jennings, EPA, forwarded information in an email sent on 4/28 that showed this number in use.

•  Will the EQC make the final decision on the number? Response: Yes, and the EQC does expect to see ranges of numbers, not just one. This is true particularly in terms of cost analysis.

o  Knowing the number might help us better understand the cost analysis.

•  Will this new information affect SAIC’s work? No, they will continue with the same range (and 175 falls within the range with which they have been working).

Implementation Inventory

The FIIAC spent the remainder of the meeting reviewing and refining the draft Implementation Inventory matrix that was developed at the April 8 meeting and filled in by some FIIAC members and DEQ leading up to today’s meeting. The following sections highlight comments and questions raised around the various options. FIIAC members agreed that the matrix should be viewed as a laundry list of ideas that DEQ might consider now and in the future to implement a new FCR, and that all ideas would need to be further scrutinized and fleshed out before a recommendation to move forward could occur.

Compliance schedules: Use of schedules of compliance where immediate compliance with water quality-based effluent limitation can not be achieved

•  What was the assumption for the treatment requirement? Water quality based effluent limitation – no particular number was considered during input of this approach to the matrix

•  To meet regulatory certainty, couple compliance schedules with another implementation measure. Under expected results; add ‘with some certainty’

•  Need to explore this option relative to human health criteria.

•  Not currently being issued in Oregon, so we cannot say that it is legally feasible. DEQ acknowledged compliance schedules are not in current use, and suggested this could become a new tool if the group wanted to explore creating new language in the standard.

•  Add ‘under litigation’.

•  This is a traditional approach.

•  Could be included as part of a toxics reduction program.

Variances: Where analyses demonstration dischargers cannot meet WQS based on 1 of 6 bases contained in regulations, dischargers may get a variance

•  What is the definition of ‘widespread social and economic impact’? Add that the applicant would need to do the analysis and provide proof. Suggest fleshing out what this means in Oregon: who, when and how?

•  Under compliance enforcement mechanism or legal feasibility, add ‘EQC decision requiring EPA approval’.

•  How does the legal certainty mesh between variance and permit? The variance would become part of the permit. It was noted that the variance is more open ended than the compliance schedule.

•  EPA: This is a rare and exceptional tool in Oregon.

•  Is pass through different from a natural source assessment? DEQ: A natural source assessment would be very different from, e.g. a small business pass through to a POTW.

•  Add ‘limited’ under regulatory certainty.

•  Note the potential exposure to lawsuits under legal feasibility. Under political feasibility, add ‘requires EQC and EPA approval’.

•  On a grand scale, is this a viable tool for us in Oregon from DEQ’s and EPA’s perspective? While this option is more commonly used in other states, given all the data gathered and work being done up front, this could become a more feasible option in Oregon. And, it has never been done in Oregon. (EPA noted it did approve a variance in Oregon, and believe it is a viable tool that could be coupled with a toxics reduction strategy).

Great Lakes States example: Variances were applied to a group of dischargers (not individual applicants) that EPA has acted on re: overarching procedures; specifically, wastewater treatment plants for mercury. Information for the facilities was provided up front vs. during implementation procedures.

•  Who applied? An association of treatment plants pulled together information that the state used to support their rule, which was passed on to EPA.

•  Time frame? EPA will check on this. Region 5 EPA will present on some of these tools being used at the Toxics Reduction Workshop.

•  Question about implementation steps: What kind of information and when in the process did facilities have to show no available treatment technology? No specific step to ‘reprove or re-analyze information’ – the information sharing was up front.

•  Are there any industry allowed variances? No industry involved in the Great Lakes at this point, but they could add a provision for industry. This same process could be done by an industrial sector if all can agree on what the level of treatment would be.

•  What is the specific legal challenge issue? Michigan’s minimum level currently achievable (LCA) was challenged, so the state is currently updating its variance. Since this was so specific, no direct effect on non-Great Lakes states is anticipated.

•  ACTION: Question about the regulatory certainty box: Jennifer and Mary Lou will check on the ‘depends on type of POTW’ comment.

Uses and Variances: Being developed; narrative effluent limit requirements based on Restoration Use (instead of Fish Consumption Use)

•  Add regulatory certainty unknown at this time.

•  Would this be narrative criterion? Response: It would be a combination of quantitative and narrative, using the latter for near term implementation.

•  The Delaware River Basin Commission is working on this option, and their website contains information.

o  ACTION: Jennifer sent a link to the website via an email sent 5/9/08.

•  Are they leading toward a water column value which doesn’t meet the standard, vs. sediment standard? Yes, a water column value, may also be working toward a sediment standard.

•  Like the concept, want to hear more about this. And, what are EPA Region 10 thoughts about this option, and the variance option?

Offsets: New or expanding sources seek more cost-effective reductions in the same pollutant elsewhere in the waterbody/watershed to allow additional increased mass loadings of a pollutant.

•  There is no approved toxics trading program in the U.S. at this time. Could offsets be applied to toxics? EPA’s trading policy focused on conventional pollutants; it may eventually include toxics but does not at this time. This is a potential pilot program and a good placeholder. California is under consideration to gather more information on offsets for mercury.

•  Would like to see a real world example.

•  Mercury methylation as an example: The bioaccumulation factor in the water quality standard (which includes human health) is very uncertain. Suggest plugging in an equation relative to oxygen to get at the water component of the standard. Use this as an offset, a process based equation. So reducing the BOD instead of reducing mercury to get a bigger return on investment. Noted you would need to affect oxygen throughout the entire water body, and given several variables that lead to bioaccumulation of methylmercury, this would be a challenge.

o  Comment: This is a good big picture approach, gets at the entire watershed. DEQ: If the bioaccumulation rate is known, it is feasible to develop a water column value instead of a fish tissue value – and methylmercury is at this time considered through fish tissue.

o  Suggestion: At the front end determine the level of oxygen, and if it is at a good bioaccumulation level, and you are not doing anything to adversely affect that level, a variance would be provided as an offset.

•  One toxics reduction strategy on the Columbia includes wetlands as a key restoration goal. As they accumulate methylmercury, special challenges are posed and require us to look at the whole picture.

o  ACTION: Agnes Lut, DEQ, has been looking very closely at bioaccumulation of methylmercury and would be a good resource to bring back in to discuss this idea further.

Intake Credits: Where intake water exceeds the water quality criteria, water quality-based effluent limitations are set equal to the mass and concentration of the intake water.

•  Has anyone in Oregon received intake credits? Not yet, however discussions are happening that could lead to credits.

•  Would this require a rule change? DEQ is discussing this internally and it was suggested that language proposed in the temperature water quality standard (which has not been adopted) might offer some insights.

•  Note: For POTWs, intake credits would not be applicable in Oregon because their source water is not the same.

•  Is this legally feasible? It is being used in other states so works within the federal regulatory construct. Add to legal feasibility: ‘Federally, yes; may require additional work in Oregon’.

Phased Implementation: Tissue based criterion used initially for human health, but could be used to set effluent limits in the future

•  ACTION: How would the TMDL interface with phased implementation of a new FCR? Jennifer offered to check on this and get back to the FIIAC.

•  Parking lot issue: Is the Willamette mercury TMDL process (tissue based criterion driven by fish advisories, not based on water column standards) moving toward a new water quality standard in its next phase? To what extent?

Site Specific Criteria (SSC) Based on Natural Conditions: Adopt SSC for water body that can not attain criteria due to natural conditions

•  What if you analyzed something other than natural conditions?

Use Attainability Analysis: Revise designated use for water body that can not attain criteria due to natural conditions

•  Was a UAA done in Oregon? EPA response: yes

•  For site specific UAAs, do permitees need to provide resources? The state could hypothetically take this on. And, if there is interest in making change, and no resources, permitees could pay. It was noted that this could be fairly costly. EPA response: We are very interested in looking at new tools, and in trying to bring resources as needed.

General comment: Caution to be realistic about feasibility of implementing new approaches in the near term (three to five years) while simultaneously issuing permits. Currently there is no request in the 2009 budget for state based resources to support new implementation measures. So short term implementation may not be realistic. As part of the regulated community, I want legal certainty of which tool I will need to rely on to meet my obligations. Other members agreed that the brainstorm exercise is important, and needs to be balanced with reality.

Toxics Reduction Approach: Based on reasonable potential analysis along with integrated statewide toxics reduction implementation.

•  Are low capital costs anticipated? An example of the dental take back program was offered. Up front costs are low but the on-going program cost would be higher (for monitoring and evaluation). Costs would essentially be shifted, particularly relative to POTWs. Additional examples were provided: erosion control, pesticide collection, transformer change outs, evaluation of raw material inputs.

•  Regarding feasibility, legacy sources may be a challenge (e.g. Portland Harbor).

•  This solution gets at the ultimate objective. Ends and means match up; and allows the state to charge the pollution source.

•  How do you see non-point sources brought to the table in a meaningful way? Response: EQC could adopt an overall toxics reduction strategy that would drive us to look at the sources and address through permitting, updated stormwater management plans and other assistance (technical and other resources). All entities would be required to monitor. Look at all regulatory mechanisms and assure they are being met.

•  Acknowledged the broader political context that would require change. Still, monitoring alone would move us in the right direction. Start with highest priority pollutants.

•  A dental program to address mercury was offered as a specific example of a toxics reduction strategy for a regulated POWT.

•  Look at pollution prevention models to collect and track what you are removing from the environment. Where you identify potential problem areas, remove the contaminant before it gets to the treatment plant and use performance metrics to demonstrate removal of the pollutant. This would provide a more direct approach to solving the problem at the source.

•  How would this work for industrial NPDES dischargers? Is there a cost threshold? Start with toxics reduction, and then go to compliance measures. Noted evaluation process could be similar for industry and clean water agencies, and, industry might run into challenges if fewer choices are available. ACWA clarified they do not see this as a POWT only option, that this could be applicable to industry. Implementation of this will require more thinking.

•  Do you envision some facilities that are less advanced being required to get up to speed on technology before moving on to other solution options? This is already happening – most facilities are required to be up to speed to meet Clean Water Act standards. NWPPA also noted their facilities are all at the same base level.

•  EPA: Discussions about bringing toxics into the restoration picture is daunting for some. As we gather more information and bring this to light, it will become easier. We should bring watershed council folks into the discussion, as well as OWEB and other funders. A structure exists for that discussion. Suggest inviting these folks to the upcoming public workshops.

•  From DEQ’s and EPA’s perspective, what is the feasibility of implementing this approach? What are the potential barriers? DEQ response: The challenge will be in making this approach work under a regulatory scheme when not under the Clean Water Act. In terms of other non-regulatory changes/controls, it is not certain that an EQC order would be enough to drive enforcement of this approach. How do we enforce individuals to bear the appropriate brunt of obligation, without a numeric standard? It is possible to build on this approach by combining some of the other approaches discussed today. EPA response: No one tool will be favored, rather a suite of tools. Timing issues come into play.

General comment: A discussion around benefits will be important as we take these options to the EQC. Fill this part of the matrix in to the extent possible.

Traditional Treatment Approach: Microfiltration followed by reverse osmosis – with blending and full treatment

•  The information from ACWA’s March 4 FIIAC presentation was filtered into the matrix.

•  From ACWA’s perspective, feasibility is impacted by cost – ratepayers will likely fight any additional cost as they are already stressed about current costs.

•  Comment from NWPPA technical folks about the uncertainty of the technical feasibility of reverse osmosis. ACWA response: There is no technological panacea for all pollutants. DEQ response: The SAIC analysis would likely agree that there is no certainty that these new technologies would work or that they will actually be developed, given the costs.

•  A NWPPA consultant is working on a cost of compliance report for three different types of facilities with a range of fish consumption rates, and a draft should be ready by May 23, with a presentation expected to be ready by early June. The analysis includes cost to implement different treatment technologies, pilot and lab tests needed along the way; energy needed to run the technology; changes to the plant required to install technology, etc. Kathryn shared a surprising to NWPPA outcome was the finding of high background levels of arsenic. Question to NWPPA: Who is your audience for the analysis? Members of NWPPA. And, we would like to put together a user friendly presentation to look at options, costs, externalities, etc. Follow up question: How relevant to Oregon will the analysis be? All three facilities being analyzed are in Oregon. EPA noted this will be valuable information for the EQC to look at.

•  Are there any additional technologies we should be looking at? This is being researched by the NWPPA contractor: coagulation and ionization is one example. Were constructive wetlands considered? They were evaluated and turned out not to be a feasible option for pulp and paper industry facilities. However, this lo-tech option might be appropriate for smaller facilities and specific water quality issues like temperature and carbon.

Next Steps:

•  Refining the matrix: Interested members of the FIIAC will meet on May 23 from 9:30-1:00 to refine the matrix and begin to draw out some priorities as appropriate, which will be shared and discussed at the next FIIAC meeting, June 3. Members emphasized the interest in maintaining the inventory as a ‘realm of possibilities’ list for DEQ consideration for near or longer term future, so do not want to remove anything from the list even if not currently feasible. It was also suggested that the approaches could be sorted into more user-friendly categories.

•  FIIAC meeting and Workshop Schedule: An EQC decision on a new fish consumption rate is still anticipated for October 2008, after which DEQ will begin its rulemaking process. EPA acknowledged DEQ for showing Oregon’s leadership in taking a non-traditional approach to this process, part of which was bringing the FIIAC together this early in the process. EPA also has put a lot of resources into the effort. One FIIAC member noted that this focus group has been squeezed by both the process timeline and, as a result, of being combined from two focus groups into one (fiscal impacts AND implementation). Given all this, the group agreed FIIAC would not be far enough in completion of its work for a well-done June 3^rd public workshop. AGREED: Postpone the June 3 FIIAC public workshop and instead allow the FIIAC to use that time to complete its work. The NEW schedule is as follows:

o  May 23: 9:30-1 pm FIIAC meeting to further develop Implementation Inventory

o  June 3: FIIAC meeting to finalize work, memo and presentations for public workshop: Economic analyses (including SAIC, ACWA and new NWPPA); Implementation Inventory; and Benefits

▪  ACTION: NWPPA will send its cost analysis for FIIAC members to review by May 23.

o  June 4: Toxics Reduction workshop will be held in Portland

o  June 26 or 27: FIIAC workshop

o  July 29: Final FCR public workshop

o  NOTE: The group noted that it is possible the FIIAC’s work will continue beyond the June workshops and that a final memo will be presented in time for the August 21/22 EQC informational meeting.

o  All acknowledged the need to balance between meeting deadlines, developing any consensus recommendations and setting realistic goals within the FIIAC charge.

o  ACTION: Jennifer will confirm that this new proposed schedule will work internally. DS Consulting will help out with this.

•  Draft outline of FIIAC memo: Kristin Lee and Sarah Kruse shared a draft outline of what the committee might draft for the EQC.

o  ACTION: Everyone will review the draft memo outline and give feedback. Members were asked to share feedback with Kristin and Sarah by the end of the week. The final memo will go to DEQ and will be shared with the EQC in August and/or October.

o  A suggestion was made to remove #3 under summary of charge – the group will not look at implementation options for multiple fish consumption rates.

o  Under implementation strategies, change to ‘compliance’ strategies, under which one would be implementation, another might be costs, another might be benefits.

•  Getting the Work Done: To accomplish all the work, the May 23 meeting was reserved for a focused discussion on implementation. Included in that discussion will be additional work on ACWA’s toxics reduction strategy proposal (and tying it with DEQ’s regulatory framework), and new information from the NWPPA cost analysis and input to the matrix.

o  DEQ will gather information between now and then to refine and re-organize the template as appropriate.

•  In addition, economic experts from the FIIAC were asked to further develop the benefits section for the FIIAC memo. All information will be brought to the June 3 FIIAC meeting and the group will determine how it will be presented at the public workshop, and next steps for the memo.

o  ACTION: DS Consulting and DEQ will help organize the off-line work and upcoming FIIAC meetings. One suggestion was made to develop a template of issues needing to be addressed to help focus the group’s work and lead to a final product.