Fiscal Impacts and Implementation Advisory Committee
Meeting 5
Friday May 23, 2008
9:30-1:00 pm
Location: US EPA - Region 10 (503 326-3250)
805 S.W. Broadway, Suite 500
Portland, OR 97205
Call-In Number: 503-945-7612 reference number 9652
Proposed Agenda
Purpose of this meeting: To further develop the implementation strategy matrix.
9:30 Get Settled, Welcome and Introductions
9:40 Implementation Inventory
Members will have provided input to the Implementation Strategies Inventory and be prepared to discuss refinements.
• Discuss additions and refinements
• Prioritize the list
• Finalize (or strategy to finalize)
12:45 Next Steps
• Assignments
• Next Meeting: Tuesday June 3
1:00 Adjourn
Oregon Fish and Shellfish Consumption Rate Project
Fiscal Impact and Implementation Advisory Committee (FIIAC)
Meeting Summary
May 23, 2008
In attendance for all or part of the meeting:
Members: Deanna Conners (DHS), Kathleen Feehan (CTUIR), Rich Garber (Boise, Inc./AOI), Sarah Kruse (Ecotrust), Kristin Lee (ECONorthwest), Susie Smith (ACWA), Willie Tiffany (League of Oregon Cities), Kathryn VanNatta (Northwest Pulp and Paper Association)
Resource Advisors and Others: Chris Jarmer (OFIC), Jannine Jennings (EPA), Melinda McCoy (EPA), Neil Mullane (DEQ), Mary Lou Soscia (EPA), Deb Sturdevant (DEQ), Mike Wiltsey (DEQ), Jennifer Wigal (DEQ)
Faciliators: Donna Silverberg, Robin Gumpert (DS Consulting)
Implementation Inventory
FIIAC members reviewed and worked on a revised draft implementation template that was sent out just prior to today’s meeting, with input shared from Rich Garber on behalf of NWPPA and AOI.
FIIAC member Questions and Comments:
Who is the intended audience for this matrix? For the purpose of the meetings, this was to be used as a template for FIIAC to list out the ‘realm of possibilities’ for implementation approaches. The information will be folded in to the DEQ staff report in some form, and will be shared at the EQC August informational and October decision meetings. Members suggested the matrix could be viewed as:
• A list of ways we can implement options while bearing in mind cost.
• Useful tool of the universe of implementation considerations.
• A member suggested the group first review the latest additions and discuss whether there is a way to build a recommendation strategy that folds in several of the options listed in the matrix – an economic analysis could then be done around the recommended strategy.
• Concerns were shared around the legal and regulatory feasibility context – we need to clarify the nuances around them, particularly if this matrix is shared in a public forum, so the reader has a realistic view of how the CWA is currently being implemented in Oregon. Unless or until a new water quality standard is developed, this matrix is a ‘wish list’ of possibilities that may or may not be viable under the current context. Need to characterize it as such in its use – a list of wishes, not necessarily a list of solutions.
o Action: A suggestion was made to clearly note those pieces the group feels are realistic solutions vs. wish list ideas. ‘Issues considered’ vs. ‘available options’.
• Suggestion: Split regulatory certainty into two columns: ‘currently used in Oregon’ and ‘currently used in the U.S.’
• How will we present this list to the broader public – e.g. develop a smaller list of reasonable solutions? Provide an executive summary list?
• Suggest when considering prioritizing the list, think of those ideas with the most appeal that could be explored further, rather than prioritizing by those immediately viable for implementation. (Others agreed and one member suggested the priorities should be in order of most effective at removing contaminants from fish.)
Additions to the Matrix
FIIAC reviewed the new approaches added to the list by NWPPA and AOI:
Pass Through Allowance: To avoid penalties for contaminants you are not contributing, an allowance would be granted based on concentration of flow for a human health pollutant of concern.
Questions/Comments:
• How is this different from a variance? NWPPA/AOI response: It broadens the parameter. Arsenic is one example where this approach could be put to use (given such high background levels). This approach is basically a rewording of the intake credit approach, and would not be limited to a TMDL. The two ideas could be merged. This and the intake credit are two different scenarios for implementing the same concept.
• For those that divert from rivers, how would you characterize the specific load of parameters coming into the site? NWPPA/AOI response: Could use daily/monthly averages. Then split between what came in and what was output.
• Perhaps limit this approach to problem areas?
• Suggest: merge with the priority pollution concept. The burden would be on the source and on an individual basis amongst a suite of possibilities. Would also depend on water body source, so the details would be specific to each permitee.
• What timeframe did you envision for this approach? NWPPA/AOI response: The permit would not change, but the allowance would be updated on an annual basis, before renewal.
• The cost estimate is quite low from a municipality perspective. This approach would be very challenging to use to address stormwater – not sure how you would do this. Feasibility is low except for single point withdrawals.
• This approach would be challenging to implement where the water quality standard is lower than the drinking water standard.
• Has this approach been used in areas other than the Great Lakes? Answer: California and Nevada have implemented the intake credit concept. Suggest adding this to the feasibility column.
Water Quality Benchmark Criteria: Revised fish consumption rate would be used to establish human health toxics benchmarks. Benchmarks would then be used to establish WQ permit goals. Implementation requirements would follow a "top down" evaluation that looks at enhanced sampling, feasible technology, toxics use reduction and pollution prevention evaluation and implementation.
Questions and Comments:
• How many contaminants are below feasible quantification? About 40% of toxics pollutant criteria are below quantification limits right now.
Action: A request was made to DEQ to share a list of what water quality criteria would be for each fish consumption value compared to aquatic water quality standards. A table is included in the revised SAIC report, and DEQ will develop a more comprehensive comparison table. It was noted this information would be useful in adding to discussion of compliance costs, from the industry perspective. It was also noted that costs for aquatic criteria associated with various fish consumption rates would not impact businesses.
• What is the difference between benchmarks and criteria? NWPPA/AOI: Benchmarks are not absolutely enforceable criteria, rather they are goals to be met. Compliance would come using a top down approach. DEQ would be responsible for deciding how they use benchmarks along the way and how they get incorporated into the water quality standards process.
• From DEQ’s perspective, is this approach legally defensible? DEQ: By itself, it would be a challenge to implement the benchmark approach. It could be coupled with another mechanism, e.g. variance or compliance schedule, and could be a number below the PQL, while above the PQL would be a criteria standard/number to be met.
De Minimis: Establish pollutant-specific PQL, MDL or ML (or alternative) as de minimis values for each of the human health water quality criteria contaminants of concern. Could be utilized as a narrative approach coupled with a quantitative number.
Questions/Comments:
• What is the regulatory certainty of this approach? It is quite widely used around the U.S. Can be found in DEQ’s RPA Internal Management Directive (guidance documents that provide methodologies for permit writers). All are posted on DEQ’s websites. It was noted that quantification limits were recently completed and may be of interest to this group.
• Is there any movement toward including de minimis into the actual standard instead of just the Internal Management Directive? DEQ: There is less wiggle room if you lock it into the standard – and DEQ is open to discussion. This idea has been discussed in other states. One option is to include de minimis by reference without including actual numbers.
Action: EPA will check to see if this has been done in other states.
Action: DEQ has a presentation on the NPDES permitting process and how the agency currently implements criteria, both human health and aquatic. DEQ will pass on this information, and offered to present it at the next FIIAC meeting if there was interest/time. (Update: This information was sent in an email from Deb Sturdevant, DEQ, on 5/27.)
• The Oregon Justice Department could weigh in on aspects of the guidance. If something is included as internal guidance but reads like part of the rule, OJD will probably encourage DEQ to put it into rule. Note that this tension will be there, and the public could be affected.
• Is this truly regulatory uncertainty to businesses, or a regulatory uncertainty fear? Industry response: It is real – some of our pulp and paper constituents have been sued. It is a real gray area. Municipalities share this real concern.
• Is clarification needed on the distinctions between practical quantification limit (PQL), minimum detection level (MDL) and minimum level (ML)? Generally, de minimis are technical values that would require new technology to detect or treat. It could be a combination of any of the three levels referenced. MDL = Yes/no detection, so likely less than the PQL; higher level is more precise, and becomes the PQL. ML = a regulatory term for a minimum limit that was set as policy. MDLs have not been used. MLs are used by the regulated community.
Bifurcated/Two Pronged Water Quality Criteria: Using WQ toxics prioritization based on fish consumer studies, establish a two-part WQ Criteria. Focus available resources on the highest priority pollutants that drive human health concerns, avoiding one-size-fits-all unintended consequences.
Questions and Comments:
• The 737 list is a living document that will change over time. Is this proposed option proposed as a dynamic process as well? NWPPA/AOI: Yes, that is an assumption with this approach.
• What is the regulatory certainty of this, from DEQ and EPA’s perspectives? DEQ response: We need to revise the criteria so this approach may not be viable. While economic considerations are important, at the end of the day we need something that we and EPA are assured will get at our regulatory obligations. EPA response: EPA has looked at this in depth and found it is problematic to meet the test of whether it is protecting consumptive use. EPA needs to set a basis that will withstand legal challenges. DEQ: Perhaps instead of bifurcating up front, set up a tiered approach for implementation (that is not based on cost, as this cannot be part of DEQ’s consideration).
• NWPPA/AOI response: Our point was to develop a narrative based idea that would be technically and economically feasible, something that is worth further developing. If it doesn’t have legs, we would like to know soon so we can put our energy elsewhere. DEQ: It will be very challenging for us to explain and justify attributing one fish consumption rate for given criteria vs. a different rate for different given criteria. No pollution distinction can be made in terms of what Oregonians consume. DEQ does an internal review and prioritization process to screen out pollutants that are not a problem, and the criteria itself will do some sorting, given the nature of the equation. DEQ does see value in using benchmarks as a component of the process – and expressed appreciation to NWPPA and AOI for further developing the idea in the matrix. EPA: Suggest we keep this approach on the ‘ideas’ list that eventually could fold in to hybrid solutions.
• The group noted that this approach and the benchmarks approach are potential criteria values, rather than implementation steps.
• CTUIR response: The Tribe is interested in working on ways to control costs while implementing a higher protective rate. The challenge we see with the bifurcated approach is that the statewide 737 contaminant list does not necessarily match those contaminants found in particular water bodies, which have varying levels and are relevant to particular people in those particular areas.
Refining the Matrix:
Benefits: The group was asked to consider when would be an appropriate time to get into further discussion about benefits, and it was suggested that this discussion might best fit after the FIIAC finishes developing implementation options. Given that there is no additional funding for the SAIC to provide analysis on economic benefits, one member suggested that, at a minimum, the FIIAC needs to acknowledge and scope out the various potential benefits from improving water quality. “If we just focus on costs, we are not sharing the full perspective”.
The two economists of the group, Sarah Kruse and Kristin Lee, suggested that generally, those approaches that provide certainty that water quality will actually be improved will have a higher economic benefit, and vice versa. While it would be time consuming and expensive to answer economic benefits questions, it is certainly feasible to conduct a benefits analysis. They also suggested that those implementation approaches that do not require end of pipe solutions could be more beneficial – as added cost is removed and benefit is provided. Both recognized that, given the short time frame within which the FIIAC has to work, attaching specific costs in terms of dollar values to implementation approaches will not be possible. One suggestion was for the group to look at benefits from the perspective of a comparison of various implementation options. It was felt that the group needs to determine together what categories of benefits should be looked at.
It was suggested that the responses to FIIAC member comments on the SAIC report could help answer a number of questions about benefits. (NOTE: At the time of this meeting, the group was not clear on how their comments were being addressed in the report. DEQ noted they are working with SAIC to get the report out to the group as soon as possible, and definitely before the next meeting.)
Questions were also raised about the NWPPA report, to which NWPPA and AOI shared that their contractor was finding difficulty getting feedback on the technology from their vendors, and that they did not yet have the analysis available for FIIAC review. FIIAC members urged NWPPA and AOI to share the assumptions, baselines and other background information that will help set context for the analysis – and that this information should be shared with the FIIAC members well in advance of the June 27 public workshop. One suggestion was to develop a matrix showing a comparison of the three different analyses that cover baseline, assumptions, etc. to set context for each analysis and perhaps describe how they are similar and different, since the FIIAC will base its implementation considerations/recommendations partly around the economic analyses. This matrix could help tell the story of why the FIIAC recommended an alternative to the traditional approach.
NWPPA response: Our analysis will likely be different than that of the SAIC report, since our report was not designed to be compared with the SAIC analysis. The NWPPA analysis shows the technology that would be required to implement various fish consumption rates, and will not focus on benefits. What would be the usefulness of comparing these analyses in a public workshop? (FIIAC members again suggested that at least they as a group would like to understand the assumptions of each of the analyses.)
Action: Rich Garber, Boise Inc., said he would work with the contractor to get information to the FIIAC as soon as possible.
To provide clarity to the discussion, it was suggested that, at the public workshop, DEQ share how the water quality standard is developed and implemented in Oregon, followed by presentations on cost of compliance from all three analyses and the implementation inventory/abbreviated list of possible recommendations from FIIAC.
Developing a Recommended Approach
From the implementation strategies matrix, the FIIAC began to formulate ideas around a ‘comprehensive approach to toxics reduction’ option that would focus first on the major human health based contaminants of concern, and then move on to RPA problems in individual permits. The toxics reduction option would include several of the individual approaches listed in the matrix:
Implement a toxics reduction strategy with benchmark criteria through a variance approach. Tools would include pass through allowance, compliance schedules, de minimus, offsets and use attainability analysis (UAA).
Questions and Comments:
• Suggest moving the traditional approaches to the bottom of the matrix list.
• Clarification on the benchmark approach: An effluent limit would be established to meet the criteria, and not meeting this limit would leave the regulated entity open to lawsuit. The idea is to introduce benchmarks as one step down from the effluent limit and if not meeting the benchmark, the entity would need to ratchet up its efforts (but would not be as liable to lawsuit as not meeting the effluent limit). And, no more than one cycle could pass before meeting the benchmark. Adding benchmark criteria more formally to the water quality standard could help answer/set the framework for answering technical feasibility questions. And, it could be a relatively easy way to introduce new contaminants of concern (e.g. flame retardants).
• From EPA’s and DEQ’s perspective, what is the potential viability of the tools in the comprehensive package? EPA response: Conceptually, there is a way to make them work and conform to CWA– some not on their own but in conjunction, yes. DEQ response: From a regulatory perspective – yes, this approach could work. (There was a follow up interest expressed to hear from DEQ and EPA how this comprehensive approach could work in Oregon.)
• The NWPPA can not support anything that would impact SB 1010, the Forest Practices Act or Title V of the Clean Air Act, and would block any proposal that might suggest doing do this. (It was clarified that the intent of this approach is to get at toxics reduction, which will require monitoring of non point sources. And, given that some of the specific examples included in the matrix are not represented at the FIIAC table, it was agreed that specific reference to these examples should not be included at this time.)
o ACTION: DS Consulting will make refinements to the matrix, and will remove any specific references to SB 1010, Forest Practices and Title 5 under the Toxics Reduction Approach option.
• How is the toxics reduction approach different from benchmark criteria? They are very similar. The way to meet the benchmark would be through a toxics reduction approach.
• Some of these ideas are beyond the scope of implementing water quality standards. Offsets would be a cost effective way to get at the standard. The comprehensive package goes beyond that.
Action: DS Consulting shared a revised matrix with the FIIAC following today’s meeting (on 5/28).
Next Steps
FIIAC: At the June 3 meeting, the FIIAC will focus on reaching closure on the three cost analyses, implementation strategies and cost benefits. Note: The meeting will be held on the 20th floor at EPA.
Jannine Jennings (EPA) will work with Jennifer Wigal (DEQ) to map out how the FIIAC work will fold into the next EQC report. FIIAC members were encouraged to share any ideas about how to do this with them before the next meeting.
Facilitation team: DS Consulting was asked to provide direction on what is needed from FIIAC to prepare for the next workshop. (Note: the next meeting agenda was created to address this request).