Oregon has the stiffest water pollution regulations of any state in the U.S.
Sounds impressive, right?
Oregon is dead last nationwide when it comes to keeping wastewater permits current with state regulations. According to the EPA’s most recent data on the status of each state’s stormwater and wastewater permits, Oregon has the highest percentage of expired state-issued permits nationwide.
Most of the state-issued permits polluters operate under have long-passed their original expiration dates — in some cases by 20 years or more.
This means these permit holders have to be in compliance only with laws that existed when their permits were written, not with current laws. In the past two decades, numerous changes to state regulations have reduced permissible levels of toxics and temperature in wastewater.
Under the Clean Water Act of 1972, facilities and municipalities releasing wastewater directly into U.S. waterways must adhere to limits outlined in EPA or state-issued wastewater and stormwater permits. The Oregon Department of Environmental Quality issues these permits in Oregon, under the oversight of the EPA. Under the Clean Water Act, DEQ is supposed to revise water-quality standards every three years and renew each permit every five years.
But according to DEQ’s current backlog count, 63 percent of existing state-issued permits for releasing stormwater and treated wastewater directly into streams and rivers are expired. An alarming 76 percent of major wastewater permits – issued to facilities with more than 1 million gallons of wastewater flowing through their treatment plants every day – also are operating on administrative extensions. Because permits are written five years before they expire, there are many municipal sewage facilities and several large industrial facilities operating under permits written in the late 1980s and early 1990s, when regulations were much less stringent than they are today.
For example, TDY Industries in Albany – a metals manufacturer that is one of the state’s top polluters according to the EPA – is operating under the parameters of a wastewater permit that was written in 1988. Most of the state’s municipal sewage treatment plants are operating under expired permits as well. Klamath Falls’ is the oldest, written in 1990.
The amount of pollution a permit allows is based on many factors, including the number and size of other facilities contributing to the pollution of a waterway, the temperature of the water and the condition of wildlife living in the area.
“It’s very circumstantial, and those circumstances can change, and they do change, as well as the scientific knowledge,” says Nina Bell, an attorney who specializes in the implementation of Clean Water Act programs as the executive director of Northwest Environmental Advocates. She says when the Clean Water Act was written, Congress understood that science was going to be changing rapidly and that permits needed to keep up with it – that’s why permits are supposed to be rewritten every five years.
“We have a much better idea of the science behind what pollution does to people, fish and wildlife. And that change in our scientific understanding is supposed to be reflected in our water quality standards,” says Bell. “In that course of time you could also have species that have come to the brink of extinction and are listed as threatened or endangered and need the protection a new permit might afford. There could be studies that show there’s contamination in fish or water that we didn’t know about the last time the permit was issued. The amount of water in the stream that dilutes the pollution could change over that period of time as well – whether because there are more withdrawals or from the effects of climate change,” she says.
In 2012, Oregon’s waterways were ranked the 33rd most polluted in the nation, according to the Environmental Protection Agency’s Toxics Release Inventory.
So why is DEQ allowing polluters to operate under such outdated parameters? It’s not because polluters are failing to reapply for new permits. They are applying on time, which removes their liability. According to DEQ, it just doesn’t have the resources it needs to do its job.
Greg Aldrich has worked for DEQ for 15 years and is the former head of its water quality program. He’s seen backlogs like the one DEQ is experiencing before. He says the program was the most backlogged in the nation in the early 2000s as well, but then DEQ ramped the water program’s funding, creating more positions, and it started to catch up.
Then the recession hit.
“We took huge cuts – 19 percent cuts,” says Aldrich. “It is frustrating. We get an agreement, we start ramping up, we add a stormwater program that people support, and then you start seeing cuts. Some of it is a loss of general funds, some of it is a loss of federal funds. And then the stormwater (program) – because a lot of it is paid for by industry – as they shrank, you just see the program shrink,” he says.
DEQ’s $52 million Water Quality Program suffered a $5.7 million reduction in the 2011-13 budget, which represented a loss of about 37 full-time positions. These cuts included seven employees among wastewater permitting and stormwater programs.
But budget isn’t the only factor contributing to DEQ’s backlog. Aldrich says tighter regulations make the permit writing process increasingly complex, which requires a lot more water testing and analysis. DEQ is also experiencing high turnover rates as its experts, many of whom joined the program in the early 1970s when it was created, are retiring.
Litigation in 2012 surrounding DEQ’s temperature requirements added to the backlog because DEQ stopped issuing permits involving temperature regulation during that time.
Now Aldrich is DEQ’s policy and analysis manager. He hopes the Legislature will help figure out a way to increase funding to the water quality program in the next biennium, because the budget package DEQ is seeking will merely sustain the program, not help it catch up, he says.
As things are, DEQ prioritizes which permits get renewed and which ones continue to be extended based on risk factors and economic needs. Aldrich says the agency always prioritizes permits for new facilities and expansions.
The last time DEQ was this far behind on water permits, it stopped inspecting and monitoring permit holders entirely and focused only on writing permits. Aldrich says this time DEQ is approaching things differently.
“We’ve been putting more effort into the compliance part,” he says. But with the workload, his environmental engineers are not always able to review all the water testing data that permit holders self-report to DEQ.
“I think what’s been challenging for us is we sometimes have this data presented to us, and we’ve not spent time looking at it to say, ‘Oh, well you even reported a problem and we didn’t follow up on it.’ That’s where it looks incredibly bad for us,” he says.
Because DEQ hasn’t been able to do its job fully, river-watching nonprofits and their attorneys have stepped in to fill the void.
Doug Quirke, founder of Oregon Clean Water Project, has been bringing litigation against facilities violating the terms of their DEQ water quality permits since 1999. He often works with nonprofits such as the Willamette Riverkeepers.
“We track permit compliance, and we bring citizen enforcement action when we find noncompliance,” says Quirke. But he can enforce only the terms of the permit any particular polluter is operating under, not current regulations.
“In a general sense, the regulations under the Clean Water Act tend to get more stringent over time, so any of these facilities with expired permits would have more stringent permits if they were issued today.” He says older permits issued in the 1990s are of particular concern. “You don’t really need to do an analysis to know that a permit that old would definitely be more stringent if it were issued today,” he says.
DEQ’s current Water Quality Program Manager Jennifer Wigal says in the last 15 years, DEQ has seen tighter regulations in several areas.
“Temperature standards have been done and redone several times over the years, which is a concern for a lot of dischargers,” she says.
Most notably, in 2011 toxic pollutants standards changed significantly, specifically regarding reductions on pollutants that affect fish and people drinking the water, she says.
The changes in 2011 came about when Oregon found that its fish consumption rate was much higher than previously thought, says Teresa Huntsinger, water program director at Oregon Environmental Council. She sits on a committee that was formed to help find solutions to DEQ’s tremendous water permit backlog in 2001. “For many years they were making progress and catching up with that backlog, but in the last few years things have been getting worse again,” she says.
Huntsinger says part of DEQ’s resource issues have to do with water permit fees.
“The wastewater plants pay an annual fee, and the increase in that fee hasn’t ever been commensurate with the staffing cost,” she says. “DEQ has a proposal this year to increase those fees, and they’re increasing them more than they usually do to catch up. The permitees have been really balking at that, which you can understand. Partly because, from their perspective, they’re saying, ‘We’re getting poor service, it’s taking you a long time to deal with our issues, and what are we going to get in response for paying increased fees? We’re still going to be getting poor service.’ So I can see that point of view, but also at the same time they’re not paying the cost of writing their permits, so their fees need to be increased.”
DEQ’s air and land programs are not backlogged in the way its water quality program is, and this is in part because funding for those programs is more reliant on fees, says Aldrich.
While most of Oregon’s water quality permits are expired, Indiana leads the nation with nearly 100 percent of its permits up to date. But it too has experienced significant backlogs. Back in 2005, there were 263 administratively extended water quality permits across the state. According to Bruno Pigott, assistant commissioner to Indiana’s Office of Water Quality, it took a statewide commitment to fixing the problem to get his department to where it is today.
When Mitch Daniels became Indiana’s governor in 2005, he made the water quality permit backlog a top priority, meeting with Indiana’s water program his second day in office. “He was very concerned about our agency’s backlog,” says Pigott. He appointed a new commissioner and required the agency report its progress to his office. “Our individual performances as well as our agency performances were judged on our ability to reduce and eliminate that backlog,” says Pigott. “We made a concerted effort – it came from the very top and came down to an organizational commitment to getting it done,” he says. His organization also ceased extended negotiation with permitees over the parameters of permits. “If they said they were going to appeal a permit, we said OK, go ahead,’” he says.
But Oregon has not given DEQ the funding that would be necessary to see the kind of progress that states like Indiana have made in reducing backlogs. And that means stringent water quality requirements are an unreachable ideal, not a reality.
Last year Siltronic Corp., a semiconductor manufacturer in Portland, made headlines when the EPA listed it as the top waterway polluter in the state for 2012. Its wastewater permit expired in June, and the DEQ regulator responsible for its permit, Mer Wiren, says she has no idea when it will be renewed.
Wiren, is one of only two employees charged with monitoring, inspecting and writing permits for all 55 major industrial wastewater permit holders in DEQ’s Northwest Region of Oregon. She says Siltronic applied for the renewal six months ahead of time like it was supposed to, and she issued an “indefinite administrative renewal” that will keep it legal until she rewrites the permit. Additionally, as a major facility, Siltronic is supposed to receive an on-sight inspection every two years, but received no inspection between 2010 and 2014.
But the pollutant that earned Siltronic its place at the top of Oregon’s polluters, nitrate compounds, isn’t even limited under the terms of its current permit.
When told about the EPA’s ranking of Siltronic due to nitrates, Wiren says, “That’s a new piece of information to me, but if it’s a concern, we can look at that.”
Wiren says in the five years she’s worked as an environmental engineer at DEQ, she’s never seen a water quality permit renewed on time.
Siltronic spokesman Christof Bachmair says Siltrnoic has been working at reducing its pollution. He said the company has effectively reduced nitrate compound emissions by 90 percent since 2000.
Bachmair also pointed out that many facilities with wastewater permits discharge to wastewater treatment plants, not directly into the river.
“Some of these companies are discharging more nitrates than Siltronic,” he says. “In addition, the water treatment plants receive residential waste, which also contain nitrates. Again, these nitrates are typically not treated, nor are they reported to EPA as a part of the Toxic Release Reporting program. So in our view, the true picture of discharge rankings is not clearly portrayed by the EPA reports,” he says.
Portland’s Environmental Services spokesman Linc Mann confirmed that there are no specific requirements at the Columbia Boulevard and Tryon Creek wastewater treatment plants to remove nitrates and other nitrogen compounds. According to the EPA, nitrates can cause people to become seriously ill if high levels are present in drinking water. Nitrate compounds can also be harmful to the health of aquatic organisms and fish.
In DEQ’s Northwest Region, covering Multnomah, Clackamas, Washington, Columbia, Tillamook and Clatsop counties, the most outdated permits belong to the Port of St. Helens, written in 2003, and StarLink Logistics Inc., a Portland agricultural chemicals manufacturer that’s permit was renewed in 2003.
The EPA ultimately is responsible for Oregon’s permit backlog. It oversees DEQ, and gave it the authority to issue and monitor water quality permits. Quirke says any lawsuit resulting from someone getting sick from pollution emitted under the parameters of an old permit ultimately would be directed at the EPA.
“The main plan of attack for this sort of thing that I’ve seen is to try to get EPA to pull the approval of the state program, and if it actually did happen, that means that the administration of the program would get taken away and kicked back to EPA,” says Quirke.
The EPA has never fully revoked a state’s authority to issue permits, and to do so in this case wouldn’t be in Oregon’s best interest, says Christine Psyk, associate director of the EPA’s regional wastewater permitting unit. “We’ve had conversations with Oregon about their backlog,” she says, “but we don’t have a standing workforce to come in and take over permitting.” She says the EPA is working with Oregon to find ways to get caught up.
As the permitting process becomes more and more complex, with some wastewater permits filling an entire six-inch binder, looking at ways to streamline the process and providing roadmaps to permit writers are areas of focus, she says.
While Oregon may be the farthest behind on issuing permits, it’s backlog problem is not unique. “Everyone has somewhat of a backlog,” says Psyk. “The EPA has a backlog, too.”