From: ELWORTH Susan * DEQ

Sent: Mon Apr 05 11:43:20 2021

To: Richards, Tina

Cc: LIVERMAN Alex * DEQ

Subject: Case No. LQ/CU-NWR-2020-197

Importance: Normal

Attachments: Portland EB memo.pdf; Portland BEN.pdf;

Tina – Thanks for taking the time to meet with DEQ regarding the penalty issued to the City. As promised, I am providing you with some more information on the EPA BEN model, along with information on supplemental environmental projects. Also after discussing the penalty with DEQ management, DEQ is able to offer some reductions in the total penalty amount.

First, the BEN computer model was developed by EPA and is available here. I also attached the memo and actual run which was used to determine the EB factor in the proposed penalty.

Secondly, DEQ is willing to reduce the civil penalty to $19,751, including a $9,600 gravity based penalty + $10,151 in EB. DEQ arrived at this penalty amount by recalculating the EB factor as delayed until December 31, 2021. Although DEQ understands that the City believes that there may not be any EB due to the way the funding is being provided to the project, DEQ disagrees. Because funds have been dedicated to this project for several years and have been gaining an estimated 1% since that time, along with the fact that the costs used to calculate the EB factor are low as it does not include staff time or permitting costs, DEQ still feels that the City gained some economic benefit. For that reason, DEQ would recalculate the EB to delayed until December 31, 2021.

In terms of compliance requirements, because the City is already under a Consent Order, the agreement would state that if the City fails to install the permanent stormwater features prior to the end of the year (when we are recalculating the delay until), the reduced EB ($438,515) would be re-instated as the penalty for continuing to fail to meet the requirements in the Consent Order. There would be a clause in the agreement allowing DEQ to waive that penalty if there is a reason beyond the City’s control that delays installation. This would not include delays in obtaining permits or contract negotiations.

Finally, as we discussed, the City can dedicate up to 80% of the penalty to an environmental project, in lieu of paying the penalty to the State. A potential project that Alex and I have discussed is incorporating some stormwater educational exhibits or the like into the trailhead project. That said, if the City wants to do a project, or what project that would be is entirely up to the City. You can find more information on the supplemental environmental project program, including an application which would need to be submitted to DEQ for approval, on DEQ’s website here.

If you have any questions on any of this, feel free to call or email me.

Thank you – Susan

Susan M. Elworth, JD

Department of Environmental Quality

(503) 229-5152

700 NE Multnomah St., Suite 600

Portland, OR 97232