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Bills in the Legislature Might Water Down Oregon's Tough New Limits on Toxic Water Pollution by Scott Learn The Oregonian, May 30, 2011

Oregon is close to adopting the toughest limits on toxic water pollution in the United States to protect tribes and others who eat large amounts of contaminated fish, a long-planned step to cut pollutants from mercury to pesticides.

But industry, cities and farmers are fearful of the new standards.

And the Legislature is listening.

Legislative bills seek to minimize the economic hit of the new rule, help ensure that paper mills, factories and sewage treatment plants can get variances and cement the Department of Environmental Quality's second-fiddle role on ranches and farms.

The Legislature's moves signal that DEQ's nation-leading standards, in the works since 2004, could end up not doing much.

The new standards, set for Environmental Quality Commission approval in two weeks, would dramatically tighten pollution limits for a host of pollutants, including metals, flame retardants, PCBs, dioxins and plastic additives.

They come amid mounting evidence of toxic pollution in the state's rivers and nearly two decades after studies showed tribal members along the Columbia River eat far more fish than the general population.

Bills "at the 11th hour" could undercut the standards, said Carl Merkle, environmental planning manager for the Confederated Tribes of the Umatilla Indian Reservation.

"We want to see fair implementation (of the new rule) and we know that will occur over a long period of time," Merkle said. "But we also want to see it effectively implemented, so it's not just a paper exercise."

Industry and cities say the uniquely tight standards -- in some cases below natural levels in river water -- would be impossible to meet without millions of dollars worth of treatment. The rule could discourage new industries from moving in and boost sewer rates, they say.

Farmers and foresters worry the rule will lead to DEQ meddling on their land.

A strong reaction

The proposed rule triggered multiple alarms in the Legislature, and spilled over into negotiations on DEQ's budget.

A joint House-Senate subcommittee of Ways and Means initially added a cut to DEQ's budget that the agency said would reduce its response to water quality complaints by 25 percent. The subcommittee removed the cut only after two House-approved bills aimed at the new standards were scheduled for Senate hearings.

On Friday, the full Ways and Means committee postponed consideration of DEQ's budget, with a hearing on a bill covering DEQ's regulation of agriculture set for today in the Senate environment subcommittee.

Sen. Jackie Dingfelder, D-Portland, the environment committee's chairwoman, said she knows of no deal to tying DEQ's budget to the fate of the bills. "I certainly hope that they're not being politicked," she said.

One industry-backed bill, House Bill 3591, is winning bipartisan approval in the House, evenly split between Republicans and Democrats, and in the Democratic-controlled Senate. It asks DEQ to minimize economic impacts while protecting the state's waters and report back on the terms of variances issued.

That's OK with the tribes -- they want to make sure variances include meaningful provisions to cut pollution. It's also OK with the U.S. Environmental Protection Agency, which will have to approve variances for industry and sewage plants.

The history of water quality regulation shows that treatment technologies get cheaper over time and less-polluting ways of doing business emerge, said Christine Psyk, associate director of the EPA's regional water and watersheds office in Seattle.

"We recognize that variances may be needed," Psyk said. "All of us are very cognizant that it takes time to reach a very good goal."

Another industry-backed bill, HB 3676, dictates the procedure for variances in much greater detail. Tribes say it could delay the rule's implementation.

Agriculture's role

With perhaps a month left in the legislative session, the most controversial bill is House Bill 3613, which seeks to spell out DEQ's role in regulating farms and ranches. Supporters say it would simply reinforce that the Department of Agriculture has the lead role. DEQ says it's fine with the language.

Farmers favor continued regulation from the Oregon Department of Agriculture, which has issued two civil penalties since streamside protection rules were adopted in the mid-1990s. DEQ, by contrast, regularly issues fines and press releases for water quality violations among industry and other sources with discharge permits.

The bill was spearheaded by Rep. Cliff Bentz, R-Ontario, an attorney whose family began ranching near Burns in the 1920s.

"Whether this belief is correct or not, DEQ is perceived as being a regulator as opposed to a collaborator," Bentz said. "The worry is that the Department of Agriculture understands how agriculture works because that's their job and DEQ does not."

Among other measures, tighter water quality rules could force expensive fencing to protect streams from livestock, expanded stream buffer zones to reduce runoff into streams and reduced tilling to cut erosion.

Agriculture department officials say DEQ's increased work pinpointing the most polluted river basins will lead to more strategic pollution reduction, as farmers work with 45 soil and water conservation districts to cut erosion and runoff.

The department has also won legislative approval thus far for an $890,000 package that would boost monitoring near farms and ranches to determine if the efforts are cutting pollution.

Critics weigh-in

Critics include Nina Bell, director of Northwest Environmental Advocates, who filed a 2006 federal lawsuit to prompt EPA to push for the standards.

DEQ is already well behind schedule for upgrading its regulations, Bell said, and exemptions in the new rule significantly watered it down without any legislative action. Bentz's bill flips state law from requiring farmers to meet water quality standards to achieving them to "the maximum extent practicable" -- a vague term, she said, that will be left up to the agriculture department to define.

The League of Oregon Cities shares that concern. In testimony, league officials said "freeing agriculture" from the requirements "will leave municipalities and industry alone to meet these new stringent standards."

Studies indicate sewage plants are a low source of most toxic pollutants, said Chris Fick, a league lobbyist.

Variances will have to include progress toward meeting the water quality standards. But how much progress can be made is unclear.

Industry can try to cut its sources of pollution. Sewer agencies can fund streamside restoration work designed to reduce runoff, as Clean Water Services is doing in the Tualatin River watershed. They can target big polluters and fund education campaigns to get residents to reduce pollution, properly disposing of prescription drugs, for example.

"But by and large these extremely low levels (of pollutants) come to us from people's daily activities," said Janet Gillaspie, executive director of the Oregon Association of Clean Water Agencies. "There's not a magic thing we can do at the treatment plants."

Richard Whitman, Gov. John Kitzhaber's natural resource director, said monitoring will identify ongoing problems, and restoration work can provide jobs while cutting pollution.

Oregon will "meet the new standard over time," he said, "in a way that doesn't put Oregonians out of work."

Senator Dingfelder, who has worked for 25 years on water quality issues, said the tribes and EPA will watchdog progress.

"I don't think anybody's saying we're not going to get there," she said. "It's how we're going to get there and when."

Related Pages:
OR to Adopt the Strictest Standard for Toxic Water Pollution in US by Scott Learn, The Oregonian, 1/6/11
Toxic Contaminants and Their Effects on Salmonids by Morace, Johnson & Nilsen, Science Policy Exchange, 9/11/9