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Oregon Hears Testimony On Proposed Highest ‘Fish Consumption Rate’ In Country To Limit Water Toxins
Posted on Friday, February 11, 2011 (PST)

Mostly supporters turned out in Pendleton Tuesday to testify about the Oregon Department of Environmental Quality’s proposed Water Quality Standards that will be based on new human health criteria, including the highest fish consumption rate in the United States.


It was the fifth of eight public hearings the Oregon DEQ has held around the state (Bend, Eugene, Medford and Coos Bay) since Feb. 1 to explain the proposed rulemaking process. The DEQ is expected to recommend the rulemaking revisions to the Oregon Environmental Quality Commission for its consideration in mid-June before the rules are sent on to the U.S. Environmental Protection Agency for its approval or disapproval.


The proposed human health criteria revisions constitute the core of DEQ’s proposed rules, which are based on a new fish consumption rate of 175 grams per day (about 23 eight-ounce fish meals a month), a leap from the state’s current 6.5 grams a day (less than one eight-ounce fish meal per month).


A higher fish consumption rate would result in tougher restrictions on the amount of toxic pollution allowed to be discharged into Oregon waterways.


The new rules, which would particularly impact point-source dischargers like industry and municipal waste water facilities, are designed to better protect the health of people who eat more fish from Oregon streams and rivers.


The proposed rules would put limits on 114 toxics, including mercury, arsenic and certain pesticides. Studies have documented that certain populations, including Native Americans, eat more fish than the general population in the United States, and that toxics found in fish from Oregon waterways cause cancer, and effect immune, reproductive and nervous systems.


The new rulemaking also proposes a number of compliance options, including variances, for point-source dischargers.


Among those testifying in support of the new rules was Leo Stewart, vice-chairman of the Board of Trustees for the Confederated Tribes of the Umatilla Indian Reservation. The Umatilla Tribes have been at the forefront of the revisions, working since 2006 with DEQ and EPA in a “Three Governments” partnership.


Stewart said the higher fish consumption rate is designed to better protect Oregon’s more sensitive fish consumers, and those who eat more fish than the average U.S. resident. He compared higher water quality standards to protect fish consumers to air quality standards that protect people with asthma.


“In the past, water quality standards did not protect Indian people,” Stewart said. “They did not protect our children, our women, our mothers. We must think of the next Seven Generations – what we will pass on to them, what they will inherit. They should not face greater health risks for exercising their treaty rights, for practicing their religion, and for continuing our culture.”


(In February of 2009, EPA approved the Umatilla Tribes’ water quality standards, with the country’s highest fish consumption rate of 389 grams per day or about 52 fish meals a month. The fish consumption rate adopted by the Umatilla Tribes is more than twice that of the Oregon’s Warm Springs Indians, the next highest Indian tribe, and more than 12 times higher than New York, the highest state rate.)


Prior to its current efforts to develop proposed revisions, DEQ developed and adopted rules in 2004. DEQ based the criteria for the 2004 rules on EPA’s recommended criteria at the time, which used an assumed 17.5 grams for the general population per day fish consumption rate - approximately the amount of fish that fits on a cracker.


At the time Oregon approved those standards, the Umatilla Tribes expressed concerns to EPA that the standards were not protective enough of high fish consumers and did not meet EPA’s guidance that local data be used to make decisions on criteria.


In 2006, DEQ, EPA and the Umatilla Tribes reached an agreement to work together collaboratively to revise the fish consumption rate.


In what would be a two-year process, DEQ began re-evaluating its water quality standards, holding seven workshops around the state to share information and discuss stakeholders’ views about the fish consumption rate.


DEQ convened workgroups that looked at public health, and the fiscal impact and implementation of new rules. Workgroups included representatives from industry, local governments, non-government organizations, and local groups meeting to develop the new criteria with the intention of lowering the allowable amount of pollutants released to Oregon waters while, at the same time, considering variances and other actions that would provide affordable options to those that discharge those pollutants.


Meanwhile, in 2009, while stakeholders were meeting to hash out a new fish consumption rate, Oregon DEQ and EPA were sued for failing to meet federal Clean Water Act deadlines. Because the rulemaking process was not complete - data, comments and input was not yet available - EPA had not taken action. A federal court ordered EPA to take action on Oregon’s existing standards.


In June 2010, EPA disapproved those 2004 standards because, as agreed upon in 2006, they were not protective enough of Oregonians based on the amount of fish they are known to consume.


EPA’s disapproval caused the majority of the 2004 water quality criteria to no longer be effective, leaving in place the previous criteria of 6.5 grams per day that was adopted in the late 1980s.


The new proposed rules, based on the FCR of 175 grams per day, will serve as the basis for permit limits and other regulatory decisions. It also would address EPA’s disapproval of DEQ’s 2004 criteria and obviate the need for EPA to promulgate federal rules for Oregon.


In addition to the proposed criteria revisions, DEQ is proposing a number of compliance options. For point-source dischargers, those include intake credits, background pollutant allowance, and other variances. Additionally, the new rules would include revisions to the Water Quality Standards and Total Maximum Daily Load (TMDL) regulations for non-point sources.


As an example, the intake credits would allow facilities to account for pollutants already present in the intake water. Facilities would not be allowed to increase mass or concentration of the pollutant at the point of discharge.


Variances would establish and apply alternative water quality standards for a specific pollutant to a National Pollutant Discharge Elimination System (NPDES)-permitted facility for a specified duration, or when a facility demonstrates it cannot meet water quality standards for one or more reasons, including natural conditions, human caused pollution, and/or when treatment technology is infeasible.


Variances could also be allowed with a pollution reduction plan, which would provide a mechanism for achieving water quality standards when underlying water quality standards cannot be met in the short term.


Associated Oregon Industries did not have a representative at the Pendleton hearing, but in a press release dated Jan. 18, said the “proposed levels are so low that many existing Oregon facilities’ ability to compete, expand or even continue to operate will become problematic … The key to a facility’s ability to remain in operation will reside with how, if, and under what conditions the DEQ builds in a workable, and not prohibitively expensive, variance process.”


Mark Milne, superintendent of the Pendleton wastewater treatment plant, didn’t necessarily speak in opposition to the rulemaking, but made it clear the new rules not only would be cost prohibitive, but the technology needed to comply with the rules does not yet exist.


He said pollution should be reduced upstream at homes and businesses, including those on the Umatilla Indian Reservation. (The Umatilla Tribes’ sewage pipe connects to a city of Pendleton pipe that flows to the city’s wastewater treatment plant.)


Said Milne, “We’re not the source, we’re part of the solution.”


Brett VandenHeuvel, executive director of Columbia Riverkeeper, a conservation group, said Oregonians should be proud of the new rulemaking that will “reduce toxics that we put into our rivers, into our fish, into our bodies.”


VandenHeuvel said the amount of fish consumed drives the amount of pollution allowed in rivers and streams.


“In the end, will industry have to reduce toxics? Yes. Would it be cheaper and easier to discharge waste? Yes. But that’s not the answer…If you don’t eat fish, you can discharge all kinds of pollution and who cares? If you eat fish, the rulemaking means less toxics … [it was] designed to protect people who eat more fish.”


One man in the audience questioned the amount of fish eaten by Oregonians and how the state arrived at its 175 grams a day.


“One-hundred-seventy-five grams is half a pound, 180 pounds a year. How many Oregonians eat 180 pounds of fish a year?”


Andrea Matzke, a water quality specialist for DEQ, said that there are many people, including Native Americans, who eat that much fish, and the rulemaking is designed to protect the 90-95 percentile of those who eat more fish than the general population.


According to DEQ’s Executive Summary of the Human Health Toxics Rulemaking, “The proposed water quality standards revisions represent a significant improvement in the protection of Oregonians. The fish consumption rate used more accurately represents the fish known to be consumed by Oregonians.”


DEQ will put in place regulatory requirements stemming from the rules, once adopted by the Oregon EQC and approved by EPA, as permits are renewed, water quality data collected and evaluated, and TMDL analysis done to further evaluate pollutant sources within watersheds.


The DEQ has extended the comment period until March 21 and added a hearing in Portland before the Environmental Quality Commission at 1:30 p.m. Wednesday, Feb. 16 at DEQ Headquarters.


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