RE: FW: Molalla - MAO Follow-up

After reading through the documents furnished the questions besides the lagoon leak/ test well issues are:

1. Did Molalla meet the August 18 deadline for responding about the Canby water notification issues?

2. Did Molalla agree to the MAO and DEQ's August 21 deadline? Do you have more letters on those issues from Molalla - i.e. did Molalla respond by Aug 21, did DEQ send the final version of the MAO (if so what date) and did Molalla accept within the required three days? As of today where does the MAO stand? Has DEQ issued the referenced Departmental Order Penalty as it says will happen if the MAO is not accepted in three days?

3. Now that it looks like the turbidity issues are still a problem in the summer, is DEQ still going to accept the excuse that cold weather was the problem for those three winter months of turbidity problems with water discharged into the Molalla River? How can DEQ dismiss those winter violations/penalties if they are still happening in the summer - it certainly looks like an ongoing problem, not just something caused by cold weather.

4. When will DEQ finish with the lagoon leak test evaluation. Since it was not approved to be repeated why did DEQ even accept this 2017 "test" - why didn't DEQ insist of standing by the terms of the letter asking for the test wells?

I am glad to see DEQ wiped out the proposed language about anything unique about Molalla's situation. It's clear from learning about wastewater plants that all places have "unique" issues and those issues have to be solved, not used as excuses for non-compliance.

Cc: J.W. Ring <jwring@ringbenderlaw.com>; Christine L. Hein <CHein@ringbenderlaw.com>; dhuff@cityofmolalla.com; Gerald Fisher (gfisher@cityofmolalla.com) <gfisher@cityofmolalla.com>; Lynn E. Treat <ltreat@ringbenderlaw.com>; WHEELER Sarah <WHEELER.Sarah@deq.state.or.us>; COLE David <COLE.David@deq.state.or.us>; BACHMAN Jeff (jeff.bachman@state.or.us) <jeff.bachman@state.or.us>; WHITMAN Richard <WHITMAN.Richard@deq.state.or.us>; DECONCINI Nina (nina.deconcini@state.or.us) (nina.deconcini@state.or.us) <nina.deconcini@state.or.us>

Attached to this email is a cover letter, comments on the draft MAO and comments on the two engineering scopes of work you provided to us on August 2^nd. I am asking for your response to this version in one week. The cover latter addresses question in your August 2^nd email and asks for follow up on the issue that Canby Utility Board raised.

Electronic versions of the documents are attached to assist in providing response. If you wish to meet in person, please let me know.

Following up on our meeting last week, here is the status of our follow-up items.

A couple of weeks ago, Gerald contacted with Karen Williams of DEQ to let her know that Molalla had passed its budget and that it included the TMDL project. Ms. Williams was informed that the City didn’t have enough manpower to do the work in house so it was budgeted to have Dyer Partnership (Molalla’s on-call engineer) to perform the TMDL report work, coordinate with Karen, and submit the document for review before Dec 31 and final copy for approval prior to our Jan 31 deadline. She was happy to hear that Molalla had consulted out the work in order to meet the deadlines. The proposal from Dyer Partnership for this task is attached.

The test is complete, and the draft report has been prepared. That should be finalized in the next couple of days, and will be sent to DEQ as soon as that is complete.

Molalla did not issue an RFP for the Facility/Master Plan, it instead contracted with its on-call engineer, Dyer Partnership. The proposal prepared by Dyer for the plan is attached, and will meet all the requirements of DEQ’s facility plan guidance.

Attached is our updated draft of the MAO, with our suggested changes in redline. We have inserted approximately the next 7 years of currently identified projects as Phase I of construction, and included a provision that we will revisit this plan with DEQ once the Master Plan is complete, and amend the schedule if a different prioritization makes sense. If this term is too long for the MAO, we can discuss and remove some of the projects, so that it fits within an acceptable term. We have incorporated the language sent by Mr. Bachman last night, however it is not separate from our redline.

Molalla is currently having issues with turbidity which is affecting its ability to apply Class A water. Given that the use to which this water is put (irrigation of pasture for grazing), is acceptable with Class D water (OAR 340-055-0012(4)(a)(B)), we’d like to modify the Recycled Water Use Plan to allow for use of non-class A water on the site, so that this will not be an issue going forward. There will be some days in July where non-Class A water was applied, which is out of line with the RWUP, but not the regulations regarding the application of recycled water. Please let us know how we should proceed. Should DEQ determine that those are violations, we’d also like to ensure that those are included in the MAO.

One other issue we noticed is that we did not receive the amended notice of penalty for WQ/M-NWR-2016-163, following our successful appeal of the incorrectly added leak test violation. The version of the letter we have has $7,200 as a penalty, but as noted in the draft MAO from DEQ, the notice now only assesses $5,150 in civil penalties. Does the MAO serve as an amended notice, or do we need to receive an actual amended notice?

Mark P. Strandberg, Attorney

mstrandberg@ringbenderlaw.com

Ring Bender LLP

www.ringbenderlaw.com

621 SW Morrison Street, Suite 600, Portland, OR 97205

Tel: (503) 964-6730

Direct: (503) 964-6725

Mobile: (773) 606-9467

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