United States Policy, Planning, EPA 230-R-95-001
Environmental Protection And Evaluation January 1995
Agency (2134)
&EPA Community Environmental
Compliance Flexibility:
Case Study Assessments
In Idaho And Oregon
Printed on Recycled Paper
-------
-------
Community Environmental Compliance Flexibility:
Case Study Assessments in Idaho and Oregon
Prepared by: [
Lynda S. Dowling ., ;
Louis Sweeny j
Andy Spielman (Project Manager) i
Len Fleckenstein (Project Advisor) i
Elvira Dixon (Project Secretary) j
jl
Program Evaluation Division j
Office of Policy, Planning and Evaluation
United States Environmental Protection Agency
January 24, 1995 j
-------
-------
CONTENTS
I.
H.
m.
IV.
v.
VI.
List of Acronyms
Executive Summary
Introduction
A. Background on this Report
B. Purpose of this Report
C. Acknowledgements
D. Community Information
Description of Two State Methodologies
A. Overall Concept I
B. Idaho Small Community Mandates Pilot Project
C. Environmental Partnerships for Oregon Communities
D. Comparison of Idaho and Oregon Pilot Approaches
j -
if
Pilot Issues
A. State/Local Government Relations
B. State Management Approaches
C- Urgency Analysis
D. Public Participation
E. Legal Issues
F. Monitoring and Evaluation
G. Non-Environmental Mandates and Essential Services
H. Replicability of the Pilot Projects
I. Economic Development
J. EPA Role
Conclusions
Appendices
A. Idaho Project Materials
B. Oregon Project Materials
C. Other Flexibility Projects
D. Measures of Success
in
1
1
1
2
2
5
5
9
13
15
15
19
23
27
29
33
35
37
39
41
45
'Al
Bl
Cl
Dl
-------
-------
ADA
CIAG
CWA
DEC
EPA
EPOC
HQ
IDEQ
100
IRDC
MAO
MACC
NPDES
ODEQ
OHD
OECA
OEDD
OGC
OROSLR
OPPE
PED
POTW
PWSS
RCD
RCRA
RO
SDWA
TAG
List of Acronyms
Americans With Disabilities Act
Community Interaction Advisory Group
Clean Water Act
Alaska Department of Environmental Conservation
U.S. Environmental Protection Agency
Environmental Partnerships for Oregon Communities
EPA Headquarters
Idaho Division of Environmental Quality
EPA Region 10's Idaho Operations Office
Idaho Rural Development Council
Mutual Agreement and Order
Mayors, Administrators, and City Council Group
National Pollution Discharge Elimination System
Oregon Department of Environmental Quality
Oregon Health Division
Office of Enforcement and Compliance Assurance (EPA)
Oregon Economic Development Department
Office of General Counsel (EPA)
Office of Regional Operations, State/Local Relations (EPA)
Office of Policy, Planning arid Evaluation (EPA)
Program Evaluation Division (EPA)
Publicly-owned Treatment Works
Public Water Supply Supervision Program
Resource.Conservation District
Resource Conservation and Recovery Act
Regional Office
Safe Drinking Water Act
Technical Advisory Committee
-------
11
-------
I. EXECUTIVE SUMMARY
BACKGROUND I
In June of 1994, the Program Evaluation Division (FED) of EPA's Office of Policy,
Planning and Evaluation (OPPE) was asked by EPA Region 10, Idaho Division of
Environmental Quality (IDEQ), and Oregon Department of Environmental Quality (ODEQ)
to assess their experiences as the first two States to implement community environmental
compliance flexibility projects.
In accepting this request, OPPE's hope was to better understand the opportunities and
barriers to providing additional flexibility to local governments through setting priorities
among mandates and developing enforceable, multi-media compliance schedules. This report
analyzes issues related to multi-media, "place-based" (i.e., community specific)
environmental management; as well as issues of partnership and coordination among agencies
of State governments, and between agencies of federal, State, and locail governments. The
report is designed to share lessons learned with EPA staff, the two States engaged in this
work, as well as with other States who might be interested in pursuing; similar projects.
' ' ' ~
Information presented hi this report was developed through extensive interviews with
pilot project staff and management in both States; site visits and discussions with elected and
appointed officials in participant communities; and OPPE participation; in pilot project
planning meetings in Idaho, Oregon, and the Seattle office of EPA Region 10.
, * " . i:
It is important to note that this effort represents an earlv-look at the implementation of
these pilot projects. The pilots are not completed in any community. Idaho has not reached
the stage of attempting to sign compliance agreements with any community, and Oregon has
thus far reached that stage with the first of three communities. Much Ihas been accomplished
in the pilot communities; however, implementation was still hi progress hi both States at the
tune that this report was written.
' - . ' '' * ''
|, -
THE IDAHO and OREGON PILOT PROJECTS
.
T.
On the surface the two pilot programs are remarkably similar. (Each involves a
partnership between small communities and State DEQs working to diagnose environmental
concerns and compliance status, involve and educate the public, discuss and broadly rank
community priorities, and develop a legally enforceable compliance agreement. A closer
look, however, reveals key differences hi the approach each State is taking to implement its
pilot program. What follows is a description of each approach. j
111
-------
Idaho Small Community Mandates Pilot Project
Four Idaho communities are participating in the project, all of which are located in
South Central Idaho, along the Snake River and Camus Prairie. They are Hagerman,
Gooding, Fairfield, and Jerome. These four communities were "self-selected" as they
approached the Idaho Rural Development Council (IRDC) and the Governor with a proposal
for this project as a means to address "overwhelming unfunded mandates...and rural
communities' infrastructure needs."
The IDEQ approach is to work hi partnership with a number of state and federal
agencies. These include the Wood River Resource Conservation District, the Idaho
Department of Commerce, the University of Idaho Department of Agricultural Economics
and Rural Sociology which conducted economic analysis, the US Forest Service which
provided planning grants, the National Park Service which provided other planning support,
and EPA Region 10 which gave funds to carry out the project. IDEQ set up three advisory
committees to carry out their work.
The scope of the Idaho pilots includes federal and State mandates (both environmental
and non-environmental) as well as other non-mandated community funding priorities.
Through a series of community meetings, members of the public, civic leaders, and city
officials will prioritize actions and expenditures. To the extent that these include
environmental mandates, IDEQ may propose a formal extended compliance agreement
between their agency, the City, and potentially EPA.
Environmental Partnerships for Oregon Communities
Three Oregon cities have been selected to participate in that State's pilot program.
They include: Nyssa in eastern Oregon on the Idaho border; Powers in the southwest
bordering the Siskiyou National Forest; and Rainier, northwest of Portland along the
Columbia River. These three communities were selected as pilot communities from
applications received in response to a DEQ announcement published by the Oregon League
of Cities. Cities were selected based upon a series of criteria which included: non-
compliance with major environmental mandates, diverse environmental facilities, economic
development goals, geographic location, and size.
ODEQ works hi close partnership with two other State agencies~the Oregon Health
Division, and the Oregon Economic Development Department. EPA Region 10 has not been
asked to play an active role in working with the communities. However, as is the case with
Idaho, EPA Region 10's Small Communities Program provides substantial assistance to the
program through, among other ways, the facilitation of a regional working group.
The scope of the Oregon pilots includes only environmental mandates. Priority
actions and expenditures are established jointly by members of the public, civic leaders, and
city officials working together with DEQ and Health Division staff. The end result is a
formal, legally binding compliance agreement between the two State agencies and the City.
IV
-------
PRINCIPAL FINDINGS
i ' -
The two States pilot projects raise important policy issues for EPA, as well as other
States considering such programs. These include: ;
Policy Issues
1. Inter-governmental Relations Is the concept of community environmental
compliance flexibility as it is being developed in Idaho and Oregon a viable concept
for achieving compliance within the federal regulatory framework, and improving
inter-governmental relationships? r |
2. Public Participation - What type and amount of public interaction and access should
these projects include? . |
" i '
3. Prioritization Processes Who should be making decisions regarding a community's
priorities? To what extent should these decisions be risk-based? To what extent
should environmental priorities vie with non-environmental priorities?
4. The Legal Agreement What type of compliance agreement balances the ability to
provide reasonable flexibility to local governments with EPA's responsibilities to
ensure compliance with statutes? \ ' - '
- ' 'E '
5. The Role of EPA How can EPA's role as a facilitator of these projects be further
defined? Does this role vary depending on the status of program delegations or other
issues? I ;
Conclusions
1.
2.
3.
4.
States interested hi considering municipal compliance flexibility programs can learn
from the approaches and early implementation experiences of Idaho and Oregon.
These pilots are examples of community-based environmental management and
planning and are extremely illustrative of the need to establish partnerships among the
many entities concerned with, and actively involved in, enviroijmental decision-
making at the local level.
Because the pilots are so dependent on cooperation between loc al
agencies, clear support for these efforts from senior management
agencies is vital to their success.
These pilots require skills and investments outside the traditional role of regulatory
agencies, e.g., facilitation and community organizing.
, State, and federal
within those
-------
5. The practicality of the State regulatory agency as the hub of broad-based community
planning (i.e., not limited to environmental issues) is questionable.
i
6. Ambiguity on the part of EPA about how it may react to the agreements represents
both a serious barrier and an opportunity for States in implementing these pilots.
s
The concept of community environmental compliance flexibility offers significant
potential for better enabling small local governments to achieve compliance. The
projects offer valuable insight into opportunities for improving state and federal
agency working relationships with local governments. The Idaho and Oregon projects
should continue toTje monitored by EPA as models, both to further assess what
barriers and opportunities exist within EPA to providing additional flexibility to local
governments and to evaluate them as approach to place-based environmental planning.
7. Because national regulatory standards are usually established using risk-based
decisions, EPA has historically sought some degree of risk-based decision-making hi
community priority setting. Traditional risk analysis does not appear to be a
predominant tool utilized by either State DEQ in then: priority-setting methodologies.
VI
-------
H. INTRODUCTION
A. BACKGROUND ON TfflS REPORT
.1-
/ - - : .
In June of 1994, the Program Evaluation Division (PED) of EPA's Office of Policy,
Planning and Evaluation (OPPE) was asked by EPA Region 10, Idaho Division of Environmental
Quality (IDEQ) within the Department of Health and Welfare, and Oregon Department of
Environmental Quality (ODEQ) to assess the initial pilot experiences in Idaho and Oregon hi
then: mandate prioritization and planning projects. i
f - - I
OPPE's hope, hi accepthig this request, was to better undersfcmd the opportunities and
barriers to providing additional compliance flexibility to local governments through priority
setting. OPPE also hoped to put understanding of these pilots hi a national context so that
lessons learned from then- implementation could be applied to future projects hi other states and
EPA Regions. » - !
In the context of these pilots, this report analyzes issues related to multi-media, "place-
based" (i.e., community specific) environmental management; as well as issues of partnership
and coordination among agencies of State government, and between agencies of federal, State,
and local governments.
Information presented hi this report was developed through exteiisive interviews with pilot
project staff and management in both States; site visits and discussions with elected and
appointed officials hi participant communities; and through OPPE paiticipation hi pilot project
meetings hi both Idaho, Oregon, and the Seattle office of EPA Region 10.
B. PURPOSE OF THIS REPORT J
.i '
This report has been designed to share lessons learned with the two States engaged hi this
work as well as with other States who might be interested in pursuing similar projects, and EPA.
Specifically emphasized are:
!("'''
the management approaches of the two pilot projects r
the scope of mandates included j
the methodologies used , . . '!
the role of public participation i
EPA's Role j
legal issues related to compliance flexibility, and !
feasibility of replicating these pilots hi other communities and other States
It is important to note that this effort represents an earlv-look at the implementation of
these pilot projects. The pilots are not completed hi any community. Idaho has not reached the
stage of attempting to sign compliance agreements with any community, and Oregon has thus
far reached that stage with only one of three communities. Though much has been accomplished
hi the pilot communities, implementation was still hi progress at the time this report was written.
jj
- . - i.- v. - 'i
-------
C. ACKNOWLEDGEMENTS
The Program Evaluation Division would like to thank those individuals who participated
in, and made possible, this effort. Particular thanks are due to the staffs of both Oregon and
Idaho DEQ without whose time and cooperation this assessment would not have been possible,
and to EPA Region 10's Small Communities Coordinator and his management. Other
participants included EPA Regional and Headquarters program and legal staff who provided
valuable perspectives at the outset of this project. Specific offices included Region 10's
Regional Counsel, Water and Management Divisions; Headquarters Offices of General Counsel
(OGC), Enforcement and Compliance Assurance (OECA), and Regional Operations, State/Local
Relations (OROSLR); and Region 10's Idaho and Oregon Operations Offices.
D. COMMUNITY INFORMATION
At the time this report was prepared, seven communities hi the two States were actively
participating in the two pilot projects. A brief description of each community follows:
In Idaho all four communities are located hi the Magic Valley along the Middle Snake
River. They include:
Fairfield, Idaho (pop. 376) is located approximately 70 miles east of Boise at the foot of
the Sawtooth Mountains hi the Camas Prairie region of Central Idaho. Fairfield, a largely
agricultural-based community, is also the home of Soldier Mountain Ski Area. Fairfield's
Mayor, Reuben Miller, currently serves as the Chair of the FACA-chartered Small Towns Task
Force Advisory Committee which advises EPA on issues of concern to small local governments.
Goading, Idaho (pop. 2400) is located approximately 80 miles southeast of Boise.
Gooding, the county seat of Gooding County, is also an agriculture-based community.
Gooding's retail shopping, once a center for the surrounding communities, has been in decline
as Twin Falls (41 miles southeast) has become the regional retail hub. Gooding is located at the
confluence of the Big and Little Wood Rivers which eventually flow into the Snake.
Jerome, Idaho (pop. 6,890) is located J10 miles southeast of Boise in the Middle Snake
River Plain. Though traditionally ah agriculture community, Jerome's location along both an
interstate highway and rail line have spurred the growth of light manufacturing in the City,
including a cheese processor and plastics manufacturer. Jerome is the County Seat of Jerome
County.
Hagerman, Idaho (pop. 600) is located approximately 90 miles southeast of Boise along
the Snake River and the Thousand Springs Scenic Bi-way. Hagerman is world famous for trout
and salmon hatcheriesthe natural recipients of spring water from the surrounding volcanic
landscape. Hagerman's location on the river draws seasonal visitors for fishing and other water
sports. Tourists also come to Hagermah to visit the Fossil Beds National Monument.
-------
Nyssa, Oregon (pop. 2,640) lies approximately 400 miles southeast of Portland along the
Snake River and the Idaho border. Nyssa, located hi Malheur County, is noted for the
production of agricultural crops such as onions and potatoes. ,;. .
Powers, Oregon (pop. 680) is located approximately 225 miles south of Portland just
outside of the Siskiyou National Forest. The economy of Powers; has traditionally been
dependent on timber extraction from the neighboring forest which has been affected by the
Northwest Forest Management Plan. ]-
Rainier, Oregon (pop. 1,685) is located just 50 miles north of Portland on the Columbia
River and the Washington State border. Though a "small community", Rainier is not a rural
community. Rainier is located along the shipping channel between Portland and the Pacific
Ocean. Neighboring Longview, Washington is home to several miajor manufacturers and
shipping interests, most notable of which is the Weyerhauser Paper Corporation. The recently
closed Trojan nuclear power plant is located less than five miles outside bf Rainier and employed
a significant percentage of the City's workforce. :
-------
-------
DESCRIPTIONS OF PILOT PROJECTS
A. OVERALL CONCEPT !
i ' - ]i
Both Idaho and Oregon perceived a need for regulatory agencies to be flexible in
allowing small communities to reach compliance with environmental reflations. Therefore, the
State agencies each set about designing a pilot program that would allow small communities to
plan for meeting the requirements of environmental regulations by setting priorities for local
infrastructure improvements. j
On the surface the two pilot programs are remarkably smiilar. Each involves a
partnership between small communities and State DEQs working to diagnose environmental
concerns and evaluate compliance status, involve and educate the public, discuss and broadly
rank community priorities, and culminate hi a legally enforceable agreement. A closer look,
however, reveals differences hi the approach each state is taking to implement its pilot program.
What follows is a description of each approach. j
B. IDAHO SMALL COMMUNITY MANDATES PILOT PROJECT
Inception
After receiving compliance violations/enforcement orders from both IDEQ and EPA, four
communities involved with the Mayors, Administrators, and City Councils (MACC) of the Wood
River Resource Conservation District Group (RCD) complained to EPA Region 10, the Idaho
Rural Development Council (IRDC) and the Governor that they were being overwhelmed by
unfunded federal regulations and that they couldn't comply with them. The RCD, which is
under the umbrella of the Soil Conservation Service, is a local intergovernmental group which
focuses on rural development issues. In discussing rural development issues in their
communities, the MACC Group realized that no one was "addressing rural communities
infrastructure needs." In 1993, the MACC Group began lobbying Idaho politicians, the
Governor, local legislatures and the Congressional delegation, to initiate, what has become the
Idaho Small Communities Mandates Pilot Project. Governor Andrus then directed the Division
of Environmental Quality within the Department of Health and Welfiire to establish the Idaho
Small Communities Mandates Assistance Pilot Project. Idaho General Law 39-129, adopted hi
1994, authorized the Pilot Program. i
The IDEQ approach is to work in partnership with a number of state and federal
agencies. These include the University of Idaho Department of Agricultural Economics and
Rural Sociology which conducted economic analysis, the US Forest Service which provided
planning grants, the National Park Service which provided other planning support, and EPA
Region 10 which provided a seed grant of $20,500 to IDEQ in September 1993. Within IDEQ
there are four persons working on the implementation of the pilot. .1
-------
Community Selection Process
The communities selected by Governor Andrus to be pilot communities for the Mandates
Assistance Project are Hagerman, Gooding, Fairfield, and Jerome. These four communities are
all members of the MACC 'group.
Objectives
There are six objectives of the Idaho Small Community Mandates Pilot Project:
1. Examine the administrative and financial capacities of the communities;
2. Identify the mandates that need to be addressed;
3. Work with the communities to prioritize environmental and non-environmental
projects;
4. Work with agencies to develop appropriate waivers or variances relating to mandates;
5. Initiate agreements (when possible) that allow the communities to "unstack" then-
mandates and address them in priority order; and
6. Develop recommendations for State and federal legislation for the creation of
incentives and/or the removal of barriers which prevent communities from successfully
addressing their individual mandate challenges.
Process
The first step hi the process of the pilot is the signing of a memorandum of understanding
(MOU) by both the community mayors and IDEQ indicating the community's interest in
participating hi the pilot project. With this MOU the communities express their intent to work
to achieve compliance with environmental mandates as well as other non-environmental
regulations. IDEQ has determined that it is necessary for non-environmental mandates to be
discussed so that communities can plan for all regulations that they are facing as well as other
issues of importance to the community. Non-environmental mandates might include regulations
required by other laws such as the Americans with Disabilities Act; other issues of importance
to the community that need to be figured into a budget might include a new school building, new
jail, and additional expenditures on the road system.
Public information and education meetings are an'on going part of the process. Before
an MOU is signed, IDEQ holds meetings hi the communities to inform citizens of the purpose
of the pilot project and the responsibilities that come with being a participant. These education
sessions continue to follow the MOU to keep the general public informed and to get as much
input as possible from community members at all steps of the pilot project.
The next step is the diagnostic of the communities done by IDEQ which identifies all
applicable mandates and determines whether communities are hi or out of compliance with
environmental mandates. The Diagnostic also includes administrative capacity studies,
cultural/social profiles, and economic analysis pertaining to underlying ability to pay for
infrastructure improvements. At this tune, IDEQ and the four pilot communities are at this
stage of the process.
-------
Following the diagnostic analysis, if a community is found to be out of compliance with
one or more environmental protection mandates, an "urgency analysis" is completed. /This
analysis identifies all applicable mandates and their compliance status for community members
and officials to rate each issue using criteria determined by IDEQ. The criteria include public
health risk, environmental risk, cost, availability of assistance, acid public perception of
importance. Once the mandates and relevant issues are rated they are ranked by the community
in order of priority. During this stage of the process IDEQ anticipates participating as an active
member of the groups conducting the analyses and preparing the rankings. However, then- role
may be more one of facilitating meetings and guiding discussion than acting as decision makers.
h
.!
Once the ranking has been completed, IDEQ plans to draft an agreement with a schedule
for rne community to follow in order to reach compliance with both environmental mandates and
non-environmental mandates, and to plan for other issues of importance to the community. The
draft agreement will be presented to the community and, following-'any negotiation that is
necessary, sent out for public comment. Once the public comment period is completed and any
necessary changes made, the agreement will be presented to the city council for approval and
then signed by IDEQ and community leaders.
i- . . - "
I* . '
Status ';:
~^^^^~" ' ' K
v -i- . .
IDEQ has MOUs signed with all four communities and has assisted one community hi
ranking their priorities. A compliance agreement was not required in that community,
Hagerman, because it had no compliance problems at the present time. IDEQ is conducting
education programs in the other three. All three communities plan to hold a series of three
community meetings between November 1994 and February 1995 in 'order to provide public
education, discuss community priorities, develop a ranked list of those priorities, reach
agreement on a compliance schedule if necessary, and report findings to policy-makers.
Advisory Committees |
Idaho uses a variety of advisory committees to facilitate its work on the Pilot Project.
These include a Community Interaction Advisory Group (CIAG) which was convened during the
start-up phase of the project. The purpose of the CIAG was to detail strategies for public
involvement at the beginning of the pilot program. Membership included a broad array of active
community members, community leaders, and technical people from various State and federal
agencies. Having completed then* charge, the CIAG no longer meets.
A Technical Advisory Committee has also been established. If compliance orders are
required, this committee will review urgency analysis data and capacity reports for IDEQ.
Membership includes State and federal agency staff who assisted with the initial design of the
urgency analysis process. j
IDEQ also has an Executive Committee which is an on going executive-level group to
consider policy issues related to making this effort standard practice hi the future. Membership
includes members of the Congressional delegation, State goyernment leaders, and EPA Region
10 managers. The Executive Committee first was convened beginning September 1994 and will
continue to provide support. !
-------
Idaho Small
Communities
Flexibility Pilot
Approach
ID Mayors group (MACC)
I
Governor Announces Project
(confirms pilot communities)
I
informational Meetings with
Communities and DEQ
IMOU to Participate Signed by DEQ and
Community
DEQ Information/Education
Meetings with Public
I
Diagnostic
Applicable Mandates
Administrative Capacity Studies
Cultural/Social Profiles
Economic/Financial Condition
Analyses
Urnencv Analysis
ID of issues of concern and applicable mandates
Characterize each issue
Rate each issues on some scale
Rank/Cluster issues
Ranked List of Community
Priorities
DEQ Drafts Agreement
T
Draft Agreement
Public Comment
I
Agreement Signed
by
Community
DEQ
8
-------
C. ENVIRONMENTAL PARTNERSHIPS FOR OREGON COMBIUNTTIES
Inception
i '
An article, written by an Oregon DEQ staff member, was published in 1992 by the
the Western Governor's Association in "our Lands: New Strategies for protecting the West
Blueprints for Actions." The article laid out the need for a program to help small communities
set priorities for environmental requirements and develop coordinated,, long-term strategies for
reaching and maintaining compliance. To carry out the program, the DEQ proposed an
Environmental Project team. As stated in the article, the team would receive direction from an
advisory committee and help individual cities and involved agencies to rank environmental
protection requirements considering level of risk and cost. The projec^ was to focus on federal
environmental programs that were delegated to the State for administration. The team also had
as a goal the development of a program to help small cities get compliance orders allowing
extensions when necessary and provide them with protection from undue fines and legal liability.
This concept was presented to the 1993 Oregon Legislature by means of a Governor's
budget request to fund an Environmental Project team. The Legislature approved the request
and directed the DEQ to implement such a program on a pilot basis, beginning in the fall of
1993. A total of $383,000 in proceeds from State lottery operations was allocated to fund the
effort over a two-year period. The project has evolved* with the help of a Citizen's Advisory
Committee, to become the Environmental Partnerships for Oregon Communities project (EPOC).
In October of 1993 the structure was set up and 2 persons were assigned part-time to
implement the pilots. Two additional part-time staff were added over the next 3 months. The
equivalent of about two full-time staff have worked on the project over the past 15 months.
ODEQ created a multi-agency and cross-media approach by including the Oregon Health
Division (OHD) and the Economic Development Department as participating agencies. A Health
Division partnership has developed due to OHD having primacy hi drinking water issues. The
Oregon Economic Development Department (OEDD) is also a part of jthe project team for two
primary reasons: one, much of the funding for drinking water/wastewa1;er infrastructure projects
comes through OEDD; and two, the inseparable ties between a quality environment,
environmental infrastructure, and economic development suggest the importance of OEDD as
a partner. < ' . . . \
. ' - . 1 '
Community Selection Process }
' \. .
In October of 1993 ODEQ began to seek participant communities. An announcement was
placed in the Oregon League of Cities newsletter explaining the program and seeking application
from interested communities. For the first two cities selected, Nyssa and Powers, ODEQ's
selection criteria required the community to have multiple environmental mandates, definable
issues, clear jurisdiction to address the mandates and resolve issues, small population, limited
resources, and a commitment to resolve issues through public participation. EPOC was also
looking for cities that offered the prospect of transferability of pilot experiences to other .cities
around the State. EPOC also made a conscious decision to select one city east of the Cascades
and one west.
- ,1 '
i
i. ,
'.'_- 9 ' ' !
-------
For selection of the third community, Rainier, EPOC used additional criteria: the
community must be small, lacking a city manager, it must complete a SWOT analysis in
conjunction with Rural Development Initiatives, be prepared to complete the agreement by June
30, 1995, and be located in the northwest part of the State. The SWOT program is run by Rural
Development initiatives and includes a Strengths, Weaknesses, Opportunities, and Threats
assessment which assists the community in strategic planning in the areas of economic
development, education, health/social/cultural, and infrastructure needs.
Objective
Environmental Partnerships for Oregon Communities' stated objective is to develop a
new, cooperative approach to assist small communities in complying with environmental
mandates.
Process
The EPOC process consists of a series of phases, or steps, to be carried out by a multi-
agency team comprised of DEQ, the Oregon Health Division (OHD), the Oregon Economic
Development Department (OEDD) and the City. Some phases will overlap or perhaps be
revisited during the process.
The first step in the pilot project is a "Community Agreement" that is signed by ODEQ,
OHD, and the participating community designating that community as a pilot community and
documenting their interest in participating in the project. The Agreement lays out the
responsibilities of each party and sets guidelines for each party's involvement in the project.
The scope of this pilot project includes environmental mandates only, both State and federal.
Non-environmental mandates are discussed with the communities in a contextual setting but
ODEQ has determined that it will only address those environmental mandates over which ODEQ
has authority.
Prior to the signing, and throughout the entire process, informational and educational
meetings are taking place hi each community. These are conducted by either ODEQ, community
leaders, or both depending, on the wishes of the community leaders. Their purpose is to inform
the community about each step of the process and get community input at each stage.
The next step of the pilot project is a diagnosis/assessment. In a joint effort between the
community and the participating State agencies, the DEQ and OHD will perform a diagnostic
review of the city's compliance status with all potential environmental requirements. The
diagnosis will ensure that all relative requirements are addressed in the context of this project.
Following the diagnostic an evaluation is conducted, during which DEQ, OHD, and
OHDD will assist the city in determining the ecological, public health, and financial significance
associated with comply ing with the environmental requirements. The EPOC team will also help
the city define its administrative and technical capabilities in the context of achieving compliance
with the requirements.
10
-------
The State agencies will work with the community as needed!to develop an effective
mechanism for providing public information and education, as well as eliciting input from
community residents and other interested parties.
In the urgency analysis phase, which follows the diagnostic, the State agencies will assist
the city to set priorities for actions required to achieve compliance;with the environmental
mandates as defined during the evaluation. In general, the EPQC's pltiilosophy is to allow the
city to make these priority decisions based on sound information obtained during the diagnostic,
evaluation, and public participation phases of the project.
The EPOC team will coordinate the development of a written agreement between the city,
OHD, and DEQ called a "Mutual Agreement and Order (MAO)." j The MAO is a legally
binding document that will include a time schedule for addressing the mandates and other
environmental problems facing the community.
'[
Implementation of the MAO will likely be accomplished by Regional staff within DEQ
and OHD. A staff person from the EPOC project will continue to track progress and provide
technical assistance and support. ,
Status
ODEQ currently has Coinmunity Agreements signed with all three communities. ODEQ
has completed its urgency analysis for Nyssa and has drafted a compliance order that has been
distributed for public comment. The EPOC team signed the order in December 1994. ODEQ
has an urgency analysis plus draft MAO for Powers. Rainier, which joined the program hi
October 1994, is currently working on the diagnostic phase with ODEQ. ODEQ plans to have
completed orders for all three pilot communities by June of 1995. ODEQ plans to start projects
in additional communities in 1995. |
Advisory Committee i
~ . ' i
EPOC is counseled by a Citizen's Advisory Committee which makes recommendations
and provides assistance hi the decision-making for the pilot program. Membership includes five
city managers, county commissioners, Northwest Environmental Defense Center,, League of
Women Voters, Oregon Health Division, Oregon Economic Development Department, the
League of Oregon Cities, the Association of Oregon Counties, and the Sierra Club.
11
-------
Environmental Partnerships for
Oregon Communities:
Process Flowchart
Community
Agreements
<- f-ity
Evaluation
Process
i
Review Evaluation
with City
L
New Information Feedback.
Write Summary
Assessment/Diagnostic
Public Involvemen
(Partic./Review)
I
Prioritize
£
Mutual Agreement
and Order ;
Implementation
1
Community
Survey
Write Preliminary
Evaluation
I
Write Final
Evaluation
= Urgency Analysis Stages
12
-------
D. COMPARISON OF IDAHO and OREGON PILOT APPROACHES
The following matrix lays out in summary form significant diffi srences between the two
States'pilot project approaches.
# Pilots Underway
Idaho
4
Oregon
3
Scope of Pilots
# Partner
Agencies
Funding:-
- Legislature
-EPA
Authority
DEQ Structure
All mandates
(env. and non-env.)
8
(State and federal)
Environmental Only
$20.5K (start-up)
Statute: ID 39-129
HQ Office
i $383K
$25K (MWPP/indiv.)
I-egis. appropriation
Regional Office
Staff size
Staff Background
Delegation Status
(major EPA programs)
DEQ Contact with
Communities
Division of Labor
Initial State/DEQ -
Community Agreement
Academic Expertise
w. some pgm exper.
, Most
(not NPDES)
Primarily by
Project Manager
By task
MOU
(signed by both)
Administrative and
Technical Experience
All
Ezich team member has
lead w. 1 community
By Community
Community Agreement
! (both and OHD)
13
-------
Basis for Selection
Idaho
Governor-selected
Oregon
*)
Applications
Multiple mandates,
compliance problems,
willingness to work w
DEQ
Time from Initiation
to Completion
Undetermined.
(> 1 year)
6-8 months
End Product
Undetermined
(possibly agreement/order
between State/community/EPA)
Mutual Agreement
and Order between
State and commty.
Mechanism(s) for
Community Involvement
Structured
(3+ meetings)
with community input
Varies with
community preference
Committees (Advisory)
Supporting Projects
1. Executive
(state & federal)
2. Technical
(state and federal)
3. Citizens Interaction
(community-based)
1. Citizens Advisory
Monitoring and
Evaluation
Undetermined
(RO role)
Community-specific
agreement
14
-------
IV. PILOT ISSUES
This portion of the report identifies a number of issues related to the implementation of
the pilot projects. Each section includes background information on each issue for both .the
Oregon and Idaho pilots and discussion of the pilots' similarities and differences. This section
also analyzes implementation issues of interest to EPA, the States, anil the communities in the
context of each issue. The issues include state/local government relations, state management
approaches, the urgency analysis process, public participation, legal issues, monitoring and
evaluation, non-environmental mandates, replicability, economic development, and EPA's role
in the pilots. These issues were selected for their importance to the Success or failure of the
pilot projects and for their relevance to the future of these two projects and to other States
interested in undertaking similar pilots. ^
A. STATE/LOCAL GOVERNMENT RELATIONS
Background
i " ' '
Historically, the relationship between Idaho and Oregon State environmental agencies
(IDEQ and ODEQ, respectively) and community officials has been one of regulator and
regulatee rather than one of partnership. These pilot projects aim to change this relationship by
providing flexibility to towns as they work with the States to achieve full regulatory compliance.
The pilot communities and the pilot project teams are breaking nev/ ground in relationship
building and working as partners. ,.
The towns in both States have different governmental structures i In Oregon, Rainier has
a mayor-council form of government with a full-time city recorder. Nyssa has a mayor-council-
manager government with a full-time city manager. Powers has a mayor and council with a full-
time city recorder. In Idaho, Gooding has a mayor and council with full-time staff. Jerome has
a mayor-council-city administrator. Fairfield and Hagerman each have a mayor and councilbut
no full-time administrative staff. i
Implementation Issues
''..': '.'['
Relationship Building. Both Idaho and Oregon staff stressed jthat developing personal
contacts with local officials and other community members was an essential first step in initiating
these projects. The process of building relationships between the States and the communities
is an integral part of building partnerships, which is the very definition of these pilots.
Developing relationships is also necessary to maintain the project schedule, ensure public
participation, and ensure that all parties have a clear understanding of the goals and purpose of
the pilots. The States point out that regular communication betweenl all parties is critical to
achieving the goals of the pilots, to keeping the projects on track, suid to achieving a clear
understanding of the purpose of the project. Establishing partnerships with municipal
governments puts both DEQs in a new role and has required new skills and approaches. It is
important for DEQs to address this issue from the beginning and determine how they are going
to approach the need to develop these relationships. j
. !l -
' 15 '. ':
-------
Administrative capacity. Many small towns lack the resources and technical expertise
to ensure compliance at all times. Such municipalities may not have the resources to hire
outside contractors and engineers to assist with compliance nor capital to pay for needed
improvements. Also, governments of small municipalities often do not have full-time officials
to handle all the mandates and regulations that are being given to them -- both environmental
and non-environmental. The lack of administrative capacity presents challenges to the DEQs
in establishing stable, empowered relationships with the town's governance. Once the State-local
agreements are negotiated, the towns will need administrative capabilities to fund, implement,
monitor and report on progress.
Recognizing these limitations, ODEQ has executed a $5K inter-agency agreement with
the City of Powers to conduct a community survey and fund other administrative work related
to EPOC and compliance. ODEQ also arranged for another $20K through OEDD for
administrative staff, and loaned the City two personal computers.
Local government structure. The governing structure of each municipality is slightly
different, and for a partnership program to be successful State agencies need to understand these
structures. For instance, hi the case of Nyssa, Oregon, the city manager chose to be the main
contact person for ODEQ hi the community. He acted as the program coordinator for the
community and provided all the information about the project to the community members.
ODEQ did not have direct contact with community members. ODEQ provided the city manager
with draft press releases and put together a presentation on EPOC and Nyssa compliance issues
for the manager to take to the City Council and civic organizations meetings. Whereas, hi
Powers, Oregon, ODEQ and OHD have had considerable direct contact with community
members and have taken an active role hi delivering an education program to inform the citizens
about the pilot and its goals and objectives.
In many small communities the mayor, city manager, city administrator, and/or city
council are part-tune, volunteer or nominally paid positions. Their time and resources can be
limited and programs need to be designed with this hi mind. It is necessary to plan meetings
and deadlines around the schedule of community members and officials in order to achieve the
best results from the program.
Transferabittty of Pilot Efforts. Also, given the large number of municipalities that exist
nationwide, other States considering projects similar to these pilots need to find a method for
transferring the knowledge gamed to other partnerships. Both Idaho and Oregon have
acknowledged that it will not be possible hi the future for DEQs to work directly with all
communities at the same level as they are for the pilot program. By standardizing their
methodology and developing a derivative that is valid and easily managed at the local level, the
mandates programs can be expanded into other communities and the benefits can be shared.
Managing Expectations. One of the roles of the DEQs in this pilot project is to manage
the expectations of the city officials and community members. DEQ needs to ensure that there
is clear understanding of the goals and objectives throughout the life of the project. Idaho DEQ
stated that at the beginning of the community education process many people hi the communities
thought that participation hi this pilot was a way .for them to get relief from mandates. As the
education process continued communities began to realize that this wasn't the case. They
16 . ' .
-------
realized that this project was designed to help them manage the mandates that applied to them,
not dismiss mandates. Just as important, the State DEQs become educated on the potential and
existing impacts of these mandates on the communities' budgets, and the context of these
mandates given competing priorities.
It is important that expectations are periodically monitored. Participants in the
communities change, and as information filters through other participants misconceptions can
arise. For example, in Idaho the mayors of three pilot towns do not expect to have a document
signed with IDEQ to formalize the final agreement which is contrary to} the stated IDEQ project
objectives (p. 8). They all expected better working relations with IDEQ and opportunities hi
the future for flexibility hi compliance. It does not seem to be the stilted purpose of the pilot
project in Idaho that no written document would be produced and unproved working
relationships would be the sole result. It is possible that misinformation has been circulated
within the communities.
. j
Turnover of officials hi small communities is a fact of life in Idaho. Continuity of
elected and appointed officials is important to the success of these pilots. One of the
communities recently had a change of mayor. He expressed his understanding that participation
in the pilot project garnered his community a fifteen-year "window" during which to comply
with regulations. Again, this "window" appears to be contrary to the stated purpose of the
project. I
Since resources are always an issue, these projects must also deal directly with the
incorrect expectation that State involvement means State funding. Municipalities often see the
only purpose of State and Federal governments as providing funds for the local authorities to
carry out their work. Although a significant amount of hands-on personal and technical
assistance is being provided by State DEQs to the pilot communities^ there is no promise of
infrastructure funding from the States. In projects like these, the municipalities are partners with.
Idaho and Oregon. The communities may have to provide their own funding so the relationship
is changed from usual practice. I
17
-------
18
-------
B. STATE MANAGEMENT APPROACHES
Background
The two States chose distinctly different approaches to manage liheir pilot projects. Their
management approaches were influenced by factors such as geography, municipal structure, and
delegation status for the federal regulations. .
Idaho DEQ is currently managing four projects statewide. All four communities are
located within IDEQ's South Central Region (headquartered in Twin Falls). All four pilots are
managed centrally out of IDEQ's Boise Headquarters. A four person group/special project team,
organizationally located outside of any specific program or media group, manages this effort.
The State of Idaho has primacy for the Public Water'Supply Supervision Program
(PWSS), but not National Pollution Discharge Elimination System Program (NPDES) delegation.
IDEQ is the State agency with management responsibility for all major environmental programs.
NPDES permits are written by EPA Region 10 staff located hi EPA's Idaho Operations Office
(IOO) in Boise. Although the NPDES program Is not delegated to the State, inspections are
nonetheless carried out by IDEQ inspectors.
Both States have advisory groups assisting with the design and oversight of the pilots.
Oregon has one such committee, while Idaho has four different committees. Oregon's Citizen
Advisory Committee was required by the legislature as a condition of funding. ODEQ facilitates
the committee, but membership includes five city managers, county commissioners, the
Northwest Environmental Defense Center (an environmental group), Oregon League of Women
Voters, and the State Departments of Health and Economic Development. The committee's role
is primarily to provide advice and consent to ODEQ.
There are three types of committees that advise Idaho DEQ stiff on implementation of
that State's pilots. At project inception, the Community Interaction kdvisory Group (CIAG)
gives advice on public interaction. If necessary, the Technical Advisibry Committee (TAG) is
expected to review urgency analysis data, capacity reports, etc. Finally, the Idaho Cumulative
Mandates Program Executive Committee has a mission to consider po.licy issues in an effort to
make this "part of [small] communities lives in the future." j
Oregon DEQ is currently managing pilots in three communities statewide. There is one
pilot community in each of the three jurisdictions of the three ODEQ Regional Offices. The
Northwest Region (headquartered hi Portland) is home to Rainier. The West Region (with
offices in Eugene and Salem) is where Powers is located. The third community, Nyssa, is in
DEQ's Eastern Region (offices are in Bend, Pendletpn, and The Dalles). Despite their
geographic distance from one another, all three pilots are managed centrally, out of Portlandby
staff of the Northwest Region, not DEQ's Central (headquarters) Office. The four person staff
who manage this work is a special project team organizationally locate|d outside of any specific
program or media group. In addition to managing the EPOC program this project staff has other
program collateral duties.
19
-------
The State of Oregon has primary authority for all major environmental programs.
ODEQ manages all programs except for the Public Water Supply Supervision (PWSS) program
which is managed by the Oregon Health Division (OHD).
Because of the necessity to involve OHD, and the Region-focused approach of ODEQ,
EPOC managers have created project teams for each pilot community. These teams include
EPOC, OHD, Oregon Economic Development Department (OEDD), and ODEQ Regional
program staff.
Implementation Issues
Different Staffing Approaches. The distinct approaches the DEQs have used to staff
these projects have inherent strengths and weaknesses. And because of those strengths and
weaknesses State implementing agencies need to design programs that best suit their needs. For
example, Oregon's "project coordinator" approach seems to provide for a less disruptive
environment hi the event of staff departures. Although there is a single project coordinator for
each of the pilot communities, EPOC's project team has an inter-agency coordinator who
provides both overall project guidance and back-up support for each project. This approach
proved valuable when the Powers project coordinator recently left the project; the inter-agency
coordinator had been sufficiently involved with the community to prevent any disruption in the
work.
The notion of community-specific project coordinators has several other strengths as
well. EPOC's project coordinators, as they work with one City at a tune, become experts on
the community as well as a familiar face. Each coordinator is an identifiable contact person for
the community. The community isn't subjected to a compartmentalized bureaucracy related to
the EPOC project. Whatever component of the project the community is working on is
coordinated by a single individual. , , -
In contrast, IDEQ's team works on a "task specific" basis rather than a community-
specific basis, with an IDEQ team member working with all of the communities on a
specialized topic. For example, one team member works with all communities on economic and
finance issues, another person works on sociological factors, and a third person on outreach and
overall management. One team member interacts predominantly with leaders of all four
communities. Other team members are less well-known by the communities because, unlike
Oregon, there are no back-ups to any single component of the project. Therefore, work is halted
on an issue when a team member leaves his/her job. This approach proved problematic when
the team member who was most involved with the communities, and familiar to community
leaders, recently resigned from IDEQ. In filling the void he left, the overall project coordinator
had to spend time re-establishing ties with the communities. From the communities' perspective,
the one link they had with IDEQ was gone. Tune establishing a personal level of trust between
IDEQ and the communities had to be expended once again, which reflects redundancy of effort.
20
-------
"Selling" these Projects within the State Agencies. These projects involve a great deal
of organizational "turf" issues. These projects deal with several different environmental
programs managed by different organizational units. Attaining cooperation and "buy-in" from
these many individuals in various programs appears to be critical to the success of the projects.
States interested in replicating projects similar to one of these pilots need to be aware of the need
to have clear communication and support from all organizations that have a stake in the projects
or then* outcomes. EPOC was successful in obtaining buy-in by including these groups in the
process early on.
Organizational proximity to the State DEQ director does not appear to be important to
secure the support of the program managers. Oregon's projects, managed from a Regional
Office, have attained a high level of support within their organization. Program managers, for
the most part, are cooperating with EPOC managers. On the other hand, Idaho's projects, even
though managed from IDEQ Headquarters, are still struggling to attain complete support from
the program managers. i
- ' '\~ f ' )
Advisory Groups have been used very successfully by both Idaho and Oregon as a way
to garner support for the pilots outside of State DEQs. Senior representation on the advisory
committees sends a clear signal to staff of other agencies of their organizations' support.
Important stakeholders become a part of the decision-making process and therefore become more
supportive of eventual outcomes. '
- ' ,L
States need to involve all potential stakeholders in these pilots to best manage any issues
that arise over the tension that is inherent in ranking one program's importance over another's.
Through inclusion in the process project managers stand a better chance of obtaining cooperation
of other necessary organizations and individuals when it comes time to rank priorities among
mandates and set the schedule for compliance. This should occur at both the staff level
(individual program inspectors), as well as senior level (executive advisory committee).
As these projects are so politically sensitive, they require direct commitment from the
most senior leadership of State DEQs. State Agency directors need to affirm continual support
for these projects. Such leadership should help to alleviate some potential problems such as
programmatic turf battles being waged inside sponsoring agencies. i,
Coordination with Other Agencies. Because environmental programs are being
implemented by various agencies, cross-program analysis requires coordination and teamwork
between agencies. It is necessary to the success of these pilots that all involved parties work
together and cooperate in the implementation of the pilots. Idaho DEQ has identified and
involved a wide array of federal and State agencies in the State's pilots. Through both planning
and advisory committee meetings IDEQ has involved EPA Region 10/Seattle, EPA Region
10/Idaho Operations Office, Idaho Department of Commerce, Idaho Region IV Economic
Development Association, University of Idaho, Idaho State University, The Idaho Rural
Development Council, and the Wood River Resource Conservation District. Oregon DEQ
works directly with its State Health Department (PWSS primacy agency) and the State's
Economic Development Department, as well as with the League of Oregon Cities, Association
of Oregon Counties and others on the Advisory Committee.
21
-------
22
-------
C. URGENCY ANALYSIS
Background
The urgency analysis is designed as an analytic process though which the State
Agencies, in conjunction with communities, determine the environmental issues that are
immediately facing municipalities and prioritize those issues according to health risk,
environmental risk, mandate status, or community perception of importance. The urgency
analysis process is not a comparative risk ranking process. It does include an evaluation of
compliance with the mandates that need to be addressed by each community. Once this process
of identifying and evaluating issues is completed, a compliance schedule can be designed that
will allow the communities some flexibility in planning for compliance in the future and
addressing non-mandatory issues that must be included in the municipal budgets.
' ' ' ,' ' "
Idaho Approach. Idaho and Oregon took very different approaches to the urgency
analysis. Idaho's approach is somewhat more complicated due to the fact that they are including
non-environmental issues of importance to the communities. In August 1994, IDEQ held an
urgency analysis workshop in Boise which included IDEQ, related agencies from Idaho, Oregon
DEQ, Environment Canada (Canada's national environmental regulatory agency), and EPA.
The purpose of the workshop was to learn about others' experiences and to get a variety of
opinions about how the urgency analysis could be carried out. Environment Canada has already
begun a process similar to the pilot projects in Idaho and Oregon and offered its perspective.
One thing that became evident as a result of this meeting is that the purpose of and the approach
to an urgency analysis are not standardized. The urgency analysis came to be viewed as a
"toolbag" that States can take into a community, ,pull from it what they need and adjust it as
necessary.
,!'*" '
Idaho DEQ stresses the need for sociological profiles for its piilot communities. IDEQ
has gathered information about socio-economic status and utilizes this information hi making
predictions about possible community priorities. IDEQ has included information about income,
educational background, crime rate, age demographics, number of schools, etc.
i
Idaho is in the process of conducting preliminary urgency analyses in each of the four
communities and is planning a series of community meetings over the! winter of 94-95 in each
community in order to inform them about the process and determine their priorities. IDEQ
plans to include both environmental and non-environmental issues in the prioritization process.
Currently Idaho DEQ believes that all the communities are currently in compliance on all
environmental mandates. They do not have any compliance problems in any of the possible
areas according to IDEQ records although there have been compliance problems in the past. At
the upcoming series of meetings IDEQ plans to work with each community to establish a
prioritization plan on any issues that the community feels are important Since IDEQ feels that
non-compliance is not an issue for any of the communities, the urgency analysis process may
be similar to a comprehensive planning process in which the communities will identify their
priorities, e.g., new jails, economic development, more school space, and water quantity, then
set out a plan to address all those issues.
23
-------
Oregon Approach. Oregon has taken an approach that results hi a simple priority list
for the community to address. They have avoided extensive quantitative analysis and are trying
to keep things simple and workable for the communities involved. ODEQ has included only
environmental mandates on the premise that it is on these issues that they have control and the
authority to take whatever action needs to be taken. One of Oregon's requirements for
participation in the pilot is that a community must be out of compliance at the present tune.
In the urgency analysis phase, the State agencies will assist the City to prioritize actions
required to achieve compliance with the environmental mandates as defined during the
evaluation. In general, the EPOC's philosophy is to allow the City to make these priority
decisions based on sound information obtained during the diagnostic, evaluation, and public
participation phases of the project.
Implementation Issues
Ranking Methodology. The urgency analysis methodology of these pilots is not
comparative risk analysis hi the traditional sense and this presents the biggest possible barrier
to its success. Problems may arise hi how review agencies, such as State enforcement staff or
EPA, respond to a ranking that is not strictly risk-based. Both DEQs have stated that a
sophisticated comparative risk analysis is not necessary or cost-effective to the communities.
Comparative risk studies undertaken by large cities is an unrealistic approach to consider for
small towns. However, if the urgency analysis process uses a health or environmental risk-based
approach, it might more readily satisfy the approval criteria of review agencies.
When a compliance order or agreement is necessary, the urgency analysis process should
be rigorous enough that it identifies the important environmental issues affecting the communities
and is defensible to regulatory agencies. The issue for the pilot teams is whether the approach
needs to be qualitative or quantitative. Both States plan to have an urgency analysis that is a
combination of qualitative/subjective and quantitative/objective. Regulatory agencies may
require a more quantitative approach on the premise that it would make the compliance schedule
more "rational" and legally defensible. By this same logic, if a more qualitative approach is
used, then the urgency analysis must follow a process that is well-documented hi order, to
increase its defensibility to external parties. Urgency analysis criteria that might provide a basis
of defense for review agencies and outside parties might include public health risk,
environmental health risk, a high level of community involvement, and/or a rationally
compelling ranking of priorities.
Legally defensible in a court of law. The possibility of a citizen suit is something that
State agencies consider when carrying out a project such as this. A community, faithfully
following a compliance agreement which allows it extra time for compliance, will nonetheless
technically violate the deadlines the agreement purports to extend. Because the government
enforcer has neither filed nor is diligently pursuing its own enforcement action hi a federal court,
citizens would not be barred from filing a lawsuit demanding compliance. Because the violations
are clear, the issue before a judge would be whether the citizen suit states a claim for which
relief can be granted, essentially: Can and should the community do better than it has agreed to
24
-------
do in its compliance agreement? The community would introduce the agreement in its defense,
and would rely on the carefully developed priority rankings to support its demonstration that it
is addressing the risks to the health of it's population as expeditiously as possible. The
community would show that it exercised rational criteria in ranking its priorities; hi legal
parlance, that its actions were not arbitrary and capricious. Part of the community's defense
would be to demonstrate that it developed and used ranking criteria that enabled it to balance
particular circumstances unique to the town in a sufficiently objective manner that a different
user would not have obtained a radically different result. The citizen plaintiff would have the
opportunity to rebut the community's arguments, and would probably focus on areas where the
community's ranking of priorities, hi the citizen's opinion, created an unreasonable risk to public
health. If the judge rules in favor of the citizen, the compliance agreement is superseded, and
the community must then address mandates hi accordance with a schedule imposed by the court.
Second, citizens also have authority to sue the EPA Administrator or her delegatee for
alleged failure to perform any act or duty under the environmental statutes that is not
discretionary. Because the environmental statutes provide broad discretion with respect to when,
how, and whether to respond to violations, the governmental enforcer's failure to enforce against
violations generally does not state a cause of action. The government's failure to enforce
becomes actionable only if its inaction is so egregious as to constitute abandonment of a statute.
To avoid exposing itself to allegations of statutory abandonment EPA must ensure that there are
some enforcement responses to violations of all statutes, i.e., among the universe of alleged
violations, EPA should pursue enforcement actions against high priority violators, even if EPA
elects not to. pursue lower priority violations by small towns working to achieve compliance hi
accordance with a negotiated schedule. To guard against allegations that it has abandoned the
statutes with respect to a class of violators (small towns), the proverbial class-wide exercise of
enforcement discretion or "no action assurance" EPA must ensure that small towns are required
to comply with the statutory mandates, albeit on an extended time frame. Requiring compliance
with the statute as expeditiously as possible does not equate to statutory abandonment.
' i .
Neither IDEQ nor ODEQ anticipate this particular problem because the program is
designed to provide flexibility in the compliance schedule, not to dismiss regulations and because
both DEQs went to extensive effort to involve all stakeholders. However, the process that they
follow to reach a ranking of priorities facing each community must be rigorous and standardized
enough to stand up in a court of law should it be challenged.
The level and type of community involvement. The attitude that citizens have toward
the urgency analysis process and the negotiation process is another factor which can affect the
success of these pilot projects. The urgency analysis and the process followed to reach it should
be understandable to the community. Citizens hi the participating rtiunicipalities should be
informed of the effort and supportive of it. A high level of community involvement may be an
indicator that the urgency analysis process meets then* needs and is workable for them. If the
process used to reach the agreement isn't comprehensible to 'the community, then its value is
questionable and the possibility of replication is lessened greatly. | . '.
25
-------
The percentage of the community that is involved in the decision-making process, the
diversity of the community members, and the level of interest and commitment of community
members all can affect the outcome of the urgency analysis. Examples were given, by those
interviewed, of projects being derailed late in the process because one segment of the population
wasn't included and their disapproval was enough to kill the project.
Replicabttity. The possibility of replication must be addressed by any State that is
interested in replicating a pilot similar to these. The analytic methodology must be simple and
clear enough that it can be easily used to determine the urgency of issues facing communities
and to help to prioritize those issues. A stated goal of the pilot projects in both States is to be
able to replicate this type of project throughout each State. There is also interest in other States
and hi EPA Regional Offices hi replicability of projects such as these nationwide. If the
methodology used in doing the urgency analysis is too complicated to be replicated by other
communities then its value is diminished.
Useful results. The urgency analysis should produce information that is used in the final
agreement. This final agreement is the stated purpose of the mandates pilot project in both
Idaho and Oregon and the information received from the urgency analysis process should be
useful to DEQs hi producing this final agreement. A complete list of compliance problems such
as those identified by both ODEQ and the community, a ranking of .community priorities, and
agreement by all parties as to the ranking are three critical pieces of information that come from
the urgency analysis that could be utilized hi the final agreement. As the pilots proceed it will
be illuminating to learn how differences between the community rankings and State DEQ
environmental compliance issues are reconciled hi the negotiation of the final agreements and
orders.
26
-------
D. PUBLIC PARTICIPATION
Background I
One of the stated independent goals of the pilot projects in both Idaho and Oregon is a
high level of public participation. Both DEQs believe that the success or failure of a project of
this type hinges on a high level of participation among citizens in pilot communities. The
community members need to be well-informed about the goals and process of the project, they
need to have opportunities for input in the process, and their values and opinions must be an
inherent part of designing the process.
Idaho Approach. There are differences in the way that Idaho and Oregon have dealt
with the public participation aspect of their respective pilots, as well as differences between the
three Oregon communities. Idaho has spent much of 1994 developing relationships with the four
communities. They have held meetings with the leaders on an individual basis and with each
of the four communities. IDEQ has also spent time meeting public service groups, such as the
Rotary and senior citizen's groups, to inform them about the project. | Throughout the fall and
winter of 1994-95 IDEQ plans to hold community meetings in each of the four communities with
the general public to inform them about the goals of the pilot and get feedback as to community
priorities. DEQ's philosophy is that by putting in a great deal of tune up-front .in developing
relationships they will save time when it comes to negotiation of the agreements or formulation
of infrastructure plans.
Oregon Approach. Oregon has dealt with each of its communities differently at the
request of the communities. In Nyssa there is a city manager who prefers to do all the
community information sessions himself. From an outline drafted by ODEQ EPOC staff, the
city manager conducted an informational presentation for six organizations and service clubs in
the community. The presentations summarized Nyssa's involvement; in the EPOC program,
described areas where Nyssa was out of compliance with environmental mandates, and requested
public input on prioritizing actions required to achieve compliance. He also worked with EPOC
staff on a press release that went to local newspapers and radio statioiis.
In Powers, on the other hand, ODEQ has had citizen interaction at all stages of the
process and used community meetings, with community officials as participants, to inform the
public and get their input.
Implementation Issues I
Administrative Structure. Administrative structure can affect'the nature of the public
participation process carried-out by each community. Depending on the type of municipal
government and the style with which the officials govern the public participation process might
differ in each community. For instance, in Nyssa, Oregon, the city manager is more
comfortable acting as the main contact point for DEQ. The city manager took the lead hi the
public participation and education efforts. He worked closely with EPOC staff on organizing
an approach and preparing the information for the presentations arid news releases. With
- ' ' " .'/'," 27 i
-------
another type of administrative structure, the public participation component could have taken on
a different format. In Powers, Oregon, ODEQ carried out the public information sessions with
the community members because the city officials were comfortable with the project team having
direct access to the citizens.
Targeting/Selecting Participants. Both States stressed the need to identify the major
players in a community and involve them in the process. By having all the players involved
from the beginning the possibility decreases that a powerful influence hi the community could
derail the process later because they don't like the project. Most parties involved hi the pilots
feel that public participation is key to the success of the project and that success is much less
likely without high levels of public involvement and activism. All the communities involved hi
the pilots supported the idea of putting effort into attracting support and involvement.
There is a need to ensure, as much as possible, that community members that are
involved hi the decision-making for the pilots are as representative of the community as possible.
When the DEQs work with a community they often contact active members of that community,
as defined by community officials and other citizens, to be part of the task forces that advise the
pilot project team. By seeking out the change agents in a community they may be using a biased
way of identifying participants. Working through existing power sources gives an entry into the
community; however, it is important that outside groups are included and informed. For
example, in Idaho the migrant farmworker population and the large population of Basques are
important members of the communities but they rarely attend meetings. .If these groups are to
be active members of the pilot, then IDEQ must go around the existing power structure and seek
them out specifically.
28
-------
E. LEGAL ISSUES
Background
" - , ' it
Each of the two States' projects were authorized by then1 legislatures. Idaho's
Community Mandates Pilot Project was authorized by the 1994 passage of Idaho General Law
39-129 which enables IDEQ to "enter into agreements with local govenunents...[that] shall take
into account, hi descending priority the: a) protection of human health, b) protection of the
environment, c) current tax structure and rates, d) ability to pay, e) ciirrent fiscal obligations,
f) [and] other factors." No funding was provided by the Idaho legislature to IDEQ to conduct
the agreements. The Oregon legislature authorized their State program zind appropriated funding
to ODEQ using State lottery revenues. ,
-- ' ' : ! '
Both projects have had uncertainty regarding the extent to which regulatory compliance
flexibility would be available under the law. Pilot project managers in bom States consulted
with representatives of their Attorney General's offices whose involvepient has included, to a
different extent in each State, reviewing the overall conceptof the pilots.
Each federal program has its own name for the delegation of authority to a State.
The Clean Water Act term is "delegation", the Safe Drinking Water Act term is "primacy", and
Resource Conservation and Recovery Act grants "authority" for siome permitting. The
agreements that codify delegated status go by parallel names, e.g., National Pollution Discharge
Elimination System Program "Delegation Agreement." These legally binding agreements
between States and EPA spell out, in varying degrees of detail, the requirements for the State
to maintain delegation.
Compliance Orders are administrative actions issued by EPA and States having three
essential components: 1) required actions, 2) dates, and 3) penalties whiiih the Agency can move
directly to if the first or second conditions are not met. As part of the delegation agreements
and annual program oversight negotiations, EPA and States actually discuss which of the States'
procedures fit EPA criteria as official enforcement actions. Some States have ongoing debates
with EPA over which enforcement actions taken should be "counted" by EPA program
management systems. This debate may be similar to a likely future debate over the standing of
the agreements themselves. !
EPA has a role hi oversight of all of its programs. In most programs, EPA is only
required to have a "reasonable tune frame" for issuing consent orders. EPA, therefore is
allowed considerable discretion hi determining time frames within the cokext of a consent order.
29
-------
Implementation Issues
Flexibility in Regulations and Enforcement. The most obvious and important legal
implementation issue facing the State DEQs is the challenge of working within existing
regulatory requirements established by State and federal statutes. While in many cases States
can "elect not to enforce" in cases of non-compliance, they cannot administratively waive or
adjust the regulations with which a local government must comply. For example, an NPDES
inspector, who identifies a faulty publicly-owned treatment works (POTW), is not required to
immediately issue a fine. But, that inspector cannot administratively waive the requirement for
compliance for the POTW. Ultimately, DEQ must maintain the practice of taking "timely and
appropriate" actions - criteria by which EPA will review the State's programs. It is in the
definition of "timely and appropriate enforcement" that the flexibility and discretion essential to
implementation of the pilots exists. Thus, the State's authority to take action or give assurances
outside the context of enforcement action is limited. While State DEQ or EPA could elect not
to enforce immediately against a local government for its faulty POTW, it usually cannot
formally assure the local government that it will take no action.
The Legal Agreement. Compliance flexibility exists primarily with the wide discretion
allowed State DEQs in the structuring and scheduling of compliance orders. As is suggested in
the name given the Oregon contract "mutual agreement and order" (MAO) ~ the primary legal
vehicle to enforce these agreements will likely continue to be some kind of "order." Within the
context of an "order" States have considerable flexibility with respect to the schedule of required
actions. Since many required actions are expensive, providing local governments with the
opportunity to stagger and defer some costs can be critical to their carrying-out required actions.
It should be noted that the authority of a government enforcement official to enter into a
compliance agreement generally arises from the existence of an actual violation. Where
violations are only anticipated, the government's authority to enter into an agreement is less
clear. This is an issue still to be settled among EPA's legal offices.
The Oregon multi-media MAO contains the following key features:
- Affirmation of the need for local governments to comply with all regulations.
- Affirmation of ODEQ's authority to take enforcement actions against the local
government hi the event of continued non-compliance.
- Required action (compliance tests and infrastructure construction), a schedule with
dates, and fines which would be levied in specific cases. For instance, the draft MAO
between ODEQ and Nyssa stipulates that the city pay civil penalties of $500 for each day
of each violation of the compliance schedule.
An important lesson that can learned from Oregon's experience is that innovative techniques for
reaching agreement have included both the inclusive, open process used in the development of
the MAO as well as integration across media and organizations. This type of order is innovative
in both the process by which it was reached as well as the fact that it is multi-media and multi-
agency. , '
30
-------
The vehicle that IDEQ will use for reaching an agreement with the communitie.s is still
under development. Idaho communities may be more wary of the aspect of an "order" in the
agreements, due to then* long-standing political involvement and activism hi the unfunded
mandates issue. The development of an implementable means of formalizing the community
agreements still represents a significant task for IDEQ. This fact is amplified by the inclusion
of non-environmental mandates hi the agreements. j
The authority vested hi the State DEQ may be limited by the degree that the State has
delegation or primacy for EPA programs. For example, IDEQ does not have delegated authority
for the NPDES program, therefore, any community agreement/order dealing with wastewater
treatment will require EPA Region 10 approval. The coordination of the EPA-State DEQ effort
is critical to the successful comprehensive final agreement. ,
.' ~ ' " ii ' .
i
Legal Exposure. The agreement could be the target of third pairty lawsuits. Such a suit
could come from aggrieved citizens involved hi the agreement who didn't get what they wanted,
environmental groups dissatisfied with the agreement, and industry who may see the agreements
as unequal (lenient) treatment for other regulated entities. Most EPA stiiff agree "prevention [of
a suit] by inclusion is the best policy." Should such a suit arise, an open, well-documented
process with plenty of public participation would be more readily defensible. (See Section C.
Urgency Analysis for additional legal issues)
31
-------
32.
-------
F. MONITORING AND EVALUATION \
' I
Background j
One important aspect that is planned by both States but that has received little emphasis
so far is monitoring and evaluation. Monitoring and evaluation is a ciitical aspect of the pilots
because it is the system by which accountability is maintained. There is no way to tell if the
goals of the pilots are continuing to be met once the agreements ttave been reached if the
progress of project implementation is not monitored. |
' . - r
In neither Idaho nor Oregon has the monitoring and evaluation phase of the project been
well-defined. Both plan to make it a part of the pilot project. Idaho DEQ plans to make annual
evaluation a condition of the agreement but the pilot is still in progress and the final monitoring
and evaluation process has not been decided upon.
In Oregon monitoring and evaluation will be conducted by the: Regional offices. They
will track compliance with the schedules established in the MAO, as ^ell as be a source of on-
going technical assistance for the city. ;
Implementation Issues
JL Ji.JJ. -L .ii-..r-1-rar-r 'f
: - . ' - ^ ,
Basis for monitoring and evaluation. There is an issue surrounding the basis for the
monitoring and evaluation process. State agencies need to decide whether the monitoring and
evaluation should cover the concept of a project or only the process.; In other words, should
monitoring and evaluation determine whether the concept of these projects is good or whether
the process used is an effective one. |
, ' ' \ , , -r
Standardization of monitoring/evaluation process. Other issues are whether and how
the monitoring and evaluation process should be standardized. Should a
standardized/documented monitoring process exist for all communities to follow that sign a
partnership agreement hi order to institutionalize the monitoring and evaluation phase and make
it a part of every project? In this way, communities that are interested in starting a mandates
project would have a "recipe" to follow that would lay out the way that monitoring and
evaluation should be undertaken and at what stage of the project. Every State would most likely
have a different approach, as would most communities, but the State could set up a model for
communities to follow with alterations to fit then-specific needs. j
Flexibility v. Accountability. Review agencies need to balance flexibility in time
allowed local governments to meet environmental mandates with the need for those same local
governments to be held accountable for meeting those mandates. These pilots are attempting to
introduce flexibility into a process that has been traditionally very iiiflexible and has focused
solely on enforcement actions. While the pilots do not allow communities to dismiss mandates,
they do attempt to schedule the requirements for meeting the regulations into a more manageable
timeline for small communities. The pilots must be designed hi such a; way that satisfies agency
concerns about the enforcement of regulations and ensures that commumties are held accountable
for meeting the requirements. 1
' ' ' *.'
33
-------
34
-------
G. NON-ENVIRONMENTAL MANDATES AND ESSENTIAL SERVICES
Background
Non-environmental mandates are other federal or State regulations requiring action on
a City's part and are often aimed at the provision of basic services, such as education,
maintenance of safety, workplace hazards, protection of citizens' rights, and access to public
buildings. An example of a non-environmental mandate is The Americans with Disabilities Act
(ADA) which requires certain public buildings to be accessible |to all Americans. Other
essential services might include schools, a jail, police, fire, or additional expenditures and
maintenance of road systems. Environmental regulatory agencies at the Stable and federal level
are often unaware of the role that these non-environmental mandates play'in the expenditure
choices that municipalities make, ..'.-"!'.
. . . ' . I" '
'!'
Whether or not to include the non-environmental mandates in the pilot projects became
an important question for Idaho and Oregon to consider. The two States again chose different
approaches for the pilot projects. Idaho decided from the l>eginning to include non-
environmental mandates in their project, and this decision was reinforced by the language in
Idaho General Law 39-129 (1994). Oregon DEQ is aware of the presence and impact of these
other mandates but decided to focus only on the mandates within O0EQ/OHD control. Instead,
they are considered as "context" when working with the communities on setting priorities.
Implementation Issues -
The Role of Other Mandates in Priority Setting. Inclusion of non-environmental
mandates in priority setting is an issue that needs to be addressed in projects such as these. Can
other mandates be incorporated into a process designed to prioritize environmental mandates?
It is not clear that such a process could include both environmental and non-environmental
mandates and continue to use the factors, such as environmental or public health risk, that have
been included in the ranking process. For instance, if one were using ecological risk as the
primary ranking consideration, it is easy to see that many, if not most, non-environmental
mandates would be incompatible with this scheme. The same could be argued for the use of
risk to human health as a prioritization criteria. How, in such a case, would one compare the
human health risk of lead in drinking water with that of inaccessibility to public buildings? This
is not to suggest that the former is more important than the latter; only that the economics
behind the regulation of one may not be compatible with the oiher. In such a case, an
alternative ranking system (other than human health risk) would almost certainly have to be
adopted.
I ' -,
Fitting Other Mandates into Agreements. Another question regarding the inclusion of
non-environmental mandates and essential services in these exercises is "to what end is this being
done?" The "end" of these projects are binding compliance orders or "agreements" between
communities, DEQ, the State health agency (in the case of Oregon), and EPA (in the case of
Idaho). What will these agencies be able to offer hi the way of compliance scheduling for non-
environmental mandates for which they have no responsibility? Also, is it realistic that State
DEQs can serve as a clearinghouse for bringing the other State jand federal agencies with
' . 35 ' " J '
-------
mandates together in a unified, multi-media, multi-agency agreement with a single community?
Of course, there is.a strong argument to be made for understanding as much as possible
about all of the other demands competing with environmental concerns hi a given community.
But there is a potential for disappointment (at the least) if communities are expecting to receive
from the DEQs a waiver or compliance extension for a mandate for which the DEQs have no
authority whatsoever, e.g., the American with Disabilities Act. ,
Because there is a chance that non-environmental mandates and essential services may
supersede environmental mandates in a community ranking, the addition of non-environmental
mandates to these pilots may exacerbate the challenge to "sell" their concept internally within
DEQs and to EPA. If an addition to a school building is given priority over updating the
wastewater system, and compliance with the Clean Water Act is delayed by three years because
of the addition, the regulatory agencies may be less likely to support flexibility hi the compliance
schedule.
36
-------
H. REPLICABILlfY OF THE PILOT PROJECTS
Background
One of the key considerations when designing pilot projects in both States was whether
the methodologies could be replicated hi other communities within their States. Both Idaho and
Oregon, when designing these pilots, planned to use the project plans for the community
mandates projects for any interested communities hi their States. There is also interest in other
States and hi EPA Regional Offices in determining whether and how to conduct projects similar
to these in other States. I
Implementation Issues
Resource Investment. The level of investment that communities must make hi order to
foster a successful compliance flexibility effort is of great concern to other communities with
interest hi these types of projects. Is this investment such that it puts these project out of reach
for most small communities because they don't have the necessary resources? The major
investments that must be made for a project of this type include time and technical know-how.
If the tune investment by community officials is so great that it can't be matched in other
communities, then its value is lessened. In addition, if the expertise needed to carry out a
project such as this is so great that the average small community doesn't have the necessary
expertise in-house and can't afford to hire it, then the value of the pilot is minimal.
1 ... _ i . .
Tune is needed at the beginning of these types of projects to liearn the optimal way of
doing things. The time needed for both the communities and the State agencies to reach the
level at which they can operate the program effectively needs to be taken into consideration
when planning for participation hi a program of this type.
Expansion Responsibility. A concern has been stated by State DEQ staff that once the
number of communities involved is expanded the program will be run out of the State Regional
Offices. For instance, in Oregon, the project team plans to run the project from the Regional
Offices with advice from the project team. In Idaho, the plan is to carry-out the project, once
it is past the pilot stage, from the Regional Offices as well. When the projects move from the
pilot phase they will be staffed by people who were not party to their creation and who will be
working out of the offices whose main responsibility is enforcement. These offices may lack
the support and necessary "philosophy" to see these types of projects birough.
37
-------
38
-------
I. ECONOMIC DEVELOPMENT
Background |
In each of the pilot communities, economic development is of major concern to the
communities^ These concerns ranged from a desire to continue sin established course of
development to completely reorienting a community's economic baSe. In many cases, the
economic base that gave rise to the, town no longer exists. I
For example, Powers, Oregon is located at the edge of the Siskiyou National Forest.
This former timber town, heavily affected by the Northwest Forest Management Plan, is looking
to transform their economy altogether. They wish to take advantage jof their proximity to the
recreational opportunities afforded by the National Forest and build a tourism-based economy.
I
Rainier, Oregon is located on the shipping lanes of the Columbia River between the Port
of Portland and the Pacific Ocean. Located within the City limits are two undeveloped tracts
of land, each approximately 100 acres, which lie between the River amd a railroad track. City
leaders these tracts for development of manufacturing and shipping enterprises.
'[ ; ', v "
Gooding, Idaho is located at the junction of State Roads 26 and 46 which lead to Sun
Valley Ski Resort, and Craters of the Moon National Monument. In addition, the interstate
highway is only 11 miles away. City leaders wish to take advantage jof their proximity to the
interstate system and the tourist destinations and diversify then* traditionally agricultural-based
economy to also include tourism, and light manufacturing.
As different as their objectives are, these communities have a common need to increase
their capacity to provide servicesincluding environmental servicesin order to accomplish their
economic development goals. Rainier needs to upgrade its drinking water system in order to
accommodate a new manufacturer hi town. Gooding needs to extend water and sewer mams to
the highway junction to accommodate hotel and restaurant construction. Similarly, Powers needs
expanded water and sewer service for a planned R.V. Park.
Implementation Issues \. ' ' . . ,
Linking Environmental Infrastructure to Economic Development. Many of the pilot
communities in both States are facing a need to enhance their environmental services
infrastructure in order to accomplish economic development goals. .To assume that any
communities will conduct environmental planning exercises without consideration to economic
opportunities is naive. i
. . .''" ,
In the minds of the community leaders, the two are inter-related. Communities such as
Rainier, Gooding and Powers demonstrate the on-the-ground ties between environmental
investment and economic development. These communities do not believe that the provision of
environmental services by municipalities can be separated from the development of its economy.
39
-------
Link to Formal Community Planning Programs. Each of the pilot communities in Idaho
is also required to be a participant in the State's "Gem Communities" Program. Under the
"Gem" program, the Idaho Department of Commerce provides training on topics such as
orientation to economic development, leadership, conflict management, infrastructure
improvement, business retention and expansion, economic diversification and community
assessment to cities, counties, tribal nations, chambers of commerce, and local economic
development organizations. Communities also receive .technical assistance in completing their
economic development strategy. Communities expend a significant amount of energy to prepare
an Organizational Plan, a long-term Infrastructure Improvement Plan, a short-term priorities list
for the community, and a community profile.
Designated "Gem Communities" are given assistance by their State in compiling and
analyzing fiscal, demographic, and physical information which are equally useful for the
mandates projects. Therefore, hi implementing similar pilots, perhaps other communities would
benefit from existing community planning exercises of this type. States with similar economic
development or growth management projects may wish to more closely investigate the tie to
environmental planning. ,
Participation of Rural Development Councils. Rural Development Councils are
currently operating in over thirty States. Comprised of senior representatives from federal and
State agencies, local governments, Congressional delegations, Governor's offices, utilities, and
private sector concerns such as banks and news organizations, the Councils work on issues of
sustainable development for small, rural cities and towns in their States. Again, as
environmental planning is so integral to the development and overall sustainability of these
.communities, perhaps the resources of the Councils could be more fully utilized either in the
community planning phase, or assisting with the implementation, i.e., post-agreement phase of
these pilots. The Idaho Rural Development Council has been an important partner in the Idaho
.Pilot Project. .
40
-------
J. EPA ROLE
Background
As different as the two States' projects are in so many other
distinct differences in the role EPA has played in them. EPA's
establishing and carrying out the priority-setting processes has varied
in the Oregon Pilot projects to financial and administrative support for
from
(aspects, so too are there
role as a participant hi
no direct involvement
the Idaho Pilots.
To the extent that EPA has been involved in these pilots projects, the involvement has
been through Region 10, not Headquarters. Region 10 manages an active small communities
program. This program is managed by a full-time coordinator. Ifhe Small Communities
Program in Region 10 is dedicated to the sharing of information, and the provision of technical
and limited financial support to innovative State programs related to simall community issues,
and to small cities and towns directly. A significant piece of this program has been the
establishment of a Small Communities Clearinghouse Group facilitated by Region lO's Small
Communities Coordinator. This group, whose members include State agency small communities
project staff from Alaska, Idaho, Oregon, and Washington, as well as Region 10 meets via
conference call every three weeks to share ideas and experiences, anci work towards problem
solving. Regional Administrator Chuck Clarke has directly demonstrated his interest hi small
community issues and support for the Clearinghouse specifically through occasional participation
in their meetings. ,j
Implementation Issues . . j ' '
- '!-
EPA as a Facilitator, not Driver. Both the States and the participant communities
believe that EPA's proper role is to support the implementation oif these pilots and their
successors-but not to lead/"drive" their implementation. Many parties involved with these pilots
shared ideas regarding appropriate roles for EPA to play hi facilitating; then- implementation.
,i , '
|. -
i
There is widespread agreement that Region 10 is playing the appropriate role with the
pilots. State and local officials involved expressed strong beliefs mat these are Idaho and
Oregon pilots-npt EPA pilots. Idaho has asked for EPA assistance hi many cases; and, Region
10 has always been able to provide the appropriate type and level. Although Oregon has not
asked for the same kind of assistance, both States (along with Alaska £ind Washington) benefit
from the dialogue and interaction provided by the Region 10 Small Communities Clearinghouse.
EPA Assistance Financial. States would like EPA financial support to be able to hire
staff to manage the projects, and for travel and related costs for existing personnel and projects.
Community members commented on the value of outside facilitators to work with their city in
public meetings. They saw funding of these facilitators as a valuable EPA contribution.
Idaho has requested, and Region 10 has provided, support to! the Idaho Community
Mandates Pilot Project. In September 1993, Region 10 provided a $20,^00 grant to Idaho DEQ
to "jump start" the Community Mandates Pilot Project. These funds were to be used by IDEQ
to develop their project workplan, for travel, and facilitation of public meetings. Oregon has
not requested or received any direct EPA financial support. j
41.
-------
EPA Assistance - Regional Office Personnel. Another type of EPA support discussed
includes having EPA staff "on-call" to assist with, project implementation. An example of this
type of activity would include a Regional staffer travelling to a community to explain various
mandates and the risk considerations behind them.
Region 10's support for Idaho's effort goes far beyond the provision of a grant. Region
10 staff play key roles in various components of the project. Region 10's Deputy Regional
Administrator is an active member of the IDEQ's Executive Committee which oversees the
implementation of the pilots. (Other members include both Idaho Senators, one U.S.
Representative, DEQ's Director, and a senior advisor to the Governor.)
Staff of Region 10's Idaho Operations Office (in Boise) have participated hi working
sessions to identify mandates, and develop project methodologies. Region 10 (Seattle) staff have
travelled to Idaho on several occasions both to participate directly and to advise. Several of the
trips have been to the communities themselves to advise on sustainability issues, to facilitate
public meetings, and to discuss the overall issue of compliance with federal mandates. It should
be noted that all of these activities were facilitated through the work of Region 10's Small
Communities Coordinator who is truly the focal point at EPA for this work. With support from
EPA Region 10 Senior Management, the Small Community Coordinator has assembled a
"Mandates Team" comprised of EPA technical, legal, and program staff from all major media
programs. The Mandates Team lends support to the pilot projects, by following progress and
providing data and information (e.g., compliance status) to IDEQ.
Region 10's involvement with the Oregon pilots provides a sharp contrast to that with
Idaho. The interface between ODEQ implementation of the pilots and Region 10 has been
strictly limited to participation hi Clearinghouse meetings. No EPA official is a member of
Oregon's project advisory committee, although the Small Community Coordinator has
participated as an observer hi the Rainier pilot. This level of EPA involvement has been the
preference of ODEQ, which believes that as different agencies become involved, the more
difficult and confusing it becomes for the city. Further, the EPOC program has heard from the
cities themselves that their project coordinator represents a desired single point of contact for
environmental regulations and niter-agency coordination.
EPA Concurrence with,the Agreements. Although such action has not been requested
by either State, because of the novelty of this work and its potential to be adopted hi some form
by other states, EPA Headquarter's Office of Enforcement and Compliance Assurance has
expressed the desire to review and comment during the development of the agreements, with an
eye toward establishing a national model. Oregon DEQ has not built tune for EPA review of
the Mutual Agreements and Orders into the project schedules. However, EPA has already stated
that because of the novelty of this work, they expect to review the Agreements. EPA Region
10's Small Communities Coordinator has offered both States informal programmatic and legal
review of their draft agreements/orders.
42
-------
Region 10 does not believe that it must concur/approve of these: agreements unless there
are issues or mandates (e.g., NPDES in Idaho) that are not fully delegated to the State DEQ.
Under this situation, Region 10 anticipates that it .will be directly involved in the development
and negotiation of the agreements and/or orders. J
An EPA Policy Directive. States, in particular, would like to see some sort of
directive to EPA program staff to communicate the importance of this work. Region 10 has
done some of this already. They are engaging their programs through the formation of a
staff level "Mandates Team" (which tracks the pilots), and periodic briefings to the Region's
Executive Team. The principal concern voiced by EPA HQ staff was| that they are not
receiving similar information.
43
-------
44
-------
V. CONCLUSIONS
1. States interested in considering municipal compliance flexibility programs can learn
from the approaches and early implementation experiences of Idaho and Oregon.
i ' '
' i
These pilots represent the first steps beyond planning and discussion toward learning
through experimentation hi local compliance flexibility. The pilots in Oregon and Idaho are
the first two that actually establish formal multi-media agreements for small communities'
efforts to comply with environmental mandates based on local planning efforts. These pilots
seek to "learn by doing" and represent two approaches to working with local governments on
multi-media environmental planning. Because there are similarities and differences hi the
approaches the two States are taking, other States interested in exploring compliance
flexibility can look to these experiences when deciding which approach they will take.
2. Current ambiguity on the part of the two States about how EPA may react to the
agreements represents both a serious barrier and an opportunity to the implementation of
these pilots. ' \ "'''
' - 'l -
Neither States nor EPA are likely to know what types of compliance flexibility
projects are practical and legal until the pilot agreements have been developed and have
withstood the test of time. For this reason, the current pilots represent an important
contribution to organizational learning. Idaho and Oregon are concerned that EPA's reaction
may prevent them from discussing or piloting approaches of their own.
I ~-
The pilots pose additional policy issues for EPA to consider asi well, particularly
related to the appropriate role to play. Questions include whether to participate hi the
projects, how to monitor the agreements, and whether to endorse the pilots, and whether to
sign the agreement. The degree of EPA involvement depends largely on whether or not the
State retains delegation or primacy of federal environmental programs.
3. Once a State and community have signed a compliance agreement, and have lived
under that agreement for some period of time, it will be easier to judge the impacts of the
pilots and their value. I
Monitoring and evaluation are planned as components of these projects. States will
have to closely monitor the implementation of the agreements to ensure that compliance
schedules are being adhered to. While it is still too early to judge the ultimate success of the
pilots, it is only through examining "life under the agreements" that implementing agencies
can determine whether the agreements have been successful in meeting project objectives.
45
-------
4. Because the pilots are so dependent on cooperation between local, State, and federal
agencies, clear support for these efforts from senior management within those agencies is
vital to their success.
A compliance flexibility pilot means that program managers may need to allow
compliance with one program to be delayed hi order to allow the local governments to
address a different program first. If the management of participating agencies is not
supportive of the pilots and their objectives, then the probability of these objectives being
met is reduced. Clear direction from the agency head regarding the importance of cross-
program perspectives and cooperation is necessary. ,
5. The practicality of the State DEQas the hub of broad-based community planning is
questionable.
The possibility of success for these pilots may be reduced when the focus of the
agreements shifts from environmental planning to a wider range of community concerns.
DEQs and their State partners should strongly consider limiting the formal negotiations to
those areas where they have authority to act and can enforce agreements. While tune must
be given to the public airing of other community concerns , DEQs risk losing credibility hi
the communities by laying out expectations they cannot fulfill.
6. These pilots require skills and investments outside the traditional role of regulatory
agencies.
The type of resources that regulatory agencies are required to provide to these types
of pilots are very different from what they have provided to communities in the past.
Historically, regulatory agencies have taken enforcement measures following an investigation
into the compliance status of communities. With a mandates flexibility pilot, regulatory
agencies must instead engage hi inter-agency coordination, act as a community liaison,
actively seek public participation hi decision-making processes, and provide extensive
education and technical assistance to community members. These are not necessarily roles
that regulatory agencies are accustomed to, or experienced with, and will require them to
change and adjust if the pilots are to succeed. Regulatory agency staff will need to be
properly trained and oriented to these diverse new skills hi order for these community-based
pilots to succeed.
7. Because national regulatory standards are usually established using risk-based
decisions, EPA is looking for risk-based decision-making in community priority setting.
Risk, however, is only one component being used by State DEQs in their urgency analysis.
EPA will, most likely, look for objective, well-documented criteria that States have
followed hi prioritizing community mandates in order to accept the agreements as valid and
recognize then: credibility as compliance orders. It is important that the States use some
objective criteria, such as public health or ecological risk, hi addition to any other criteria
that they use hi the ranking process.
46
-------
8. These pilots are examples of community-based environmental management and
planning. They are extremely illustrative of the need to establish partnerships with the
many entities concerned with, and actively involved in, environmental decision-making at
the local level. !
i-
EPA can learn about community-based management (even beyond regulatory
compliance issues) by observing and supporting these pilots. Some of the many important
lessons being demonstrated include:
'! "
The challenges of public participation, cross-media risk ranking, working with other
levels of government, and integration of non-environmental issues. These are
representative of many issues relevant for an ecosystem-based or other place-based
approach.
i \
These pilots are an excellent example of promoting organizational change through the
fostering of partnerships. Agencies accustomed to a command-control approach are
challenged by the power-sharing nature of partnerships.
Pilots provide useful insight into how EPA and States DEQs will have to change and
.what types of skills are required hi order to successfully pursue compliance flexibility
partnerships.
EPA could not and should not be the "driver" of these projects;, but must stay
engaged as they expand to other States. j;
47
-------
-------
Appendix A Idaho Project Materials
A. Project Fact Sheet
B. Hagerman-IDEQ Memorandum of Understanding
C. List of Potentially Applicable Mandates
A-l
-------
Idaho Community Mandates Pilot Project
Fact Sheet
Objectives: IDEQ has designed a pilot project to evaluate community environmental
responsibilities, other non-environmental mandated responsibilities and issues
of importance to the communities. The goals of the pilot project are: <
1. IDEQ will assess the status of compliance with those regulations.
2. By using health and environmental risk, cost, availability for assistance and
other indicators to prioritize the compliance requirements, the communities,
along with IDEQ will write compliance schedules in order to better meet these
regulations. Also to be considered in preparing the compliance schedules are
non-regulated issues that are of importance to the communities.
Overview: IDEQ, working with the communities, will write community profiles recording
socio-economic data about each individual community.
IDEQ will, where appropriate, conduct an urgency analysis of each
community's environmental and health risk and work with the community to
prioritize these and any other issues important to that community.
If an urgency analysis is performed, the final product will be a compliance
schedule signed by IDEQ and the community leader agreeing to follow the
schedule and meet the deadlines set by the regulating agencies.
Scope: The project covers all state and federal environmental and non-environmental
mandates as well as other issues of importance to the communities involved.
Schedule: Fairfield - selected spring 1994
Hagerman - selected spring 1994
Gooding - selected spring 1994
Jerome - selected spring 1994
Lead Agency: Idaho Division of Environmental Quality
Contacts: Bill Jarocki, Chief, Environmental Research and Analysis Bureau
Liisa Itkonen, Environmental Planner
Rod Jensen, Economist
A-2
-------
.Communities: Ilagcrman, Idaho (pop. 600), located in-the Snake River Plain, ahoul 90
southeast of Boise.
Gooding, Idaho (pop. 2.400), located in the Snake River Plain, about 80
southeast of Boise.
Fairfield (pop. 376), located in the Camus Prairie, about 70 .cast miles east of
Boise.
Jerome (pop. 6,890), located in the Snake River Plain, about 110 miles from
Boise.
Selection: The communities were selected by Governor Andrus as active members of the
Mayors, Administrators and City Council Group of the Wood River
Conservation District. 1
Partner: US EPA planning grants
University of Idaho -- economic analysis
US-Forest Service planning grants
Resources: 2 fte economic analysis (outside IDEQ)
] fte economic analysis (within IDEQ)
3 fte -- planning and development (within IDEQ)
EPA - planning grant ($20,500)
Advisory Committees: ? '
Community Interaction Advisory Groups - Start-up committee to design public-
participation process !
Technical Advisory Committee - State and federal staffs to develop urgency
analysis process
. i
Executive Policy Committee - Members of Idaho Congressional delegation.
State government leaders, and EPA'executives to 'provide .on-going policy
advice. .-.,!'
A-3
-------
COMMUNITY MANDATES PILOT PROJECT
MEMORANDUM OF UNDERSTAND
expectations fcr &****£ MOU are the City of
S«S«f.ia«5sa.'««
Quality (DEQ). JJ"" j onnaHy recognize the community's entry-
lespecdvemtentionsandres
PREAMBLE
services for its citizens.
VA^WtaS *» ' -^^
t^^ss^^^^^s^rSvl
and develop
CS- - «-^- ^
requirements. . ,
COMMITMENTS
the results herein described.
TheDEQwill:
A-4
-------
Community Mandates Pilot Project
Community Agreement
City of Hagermari
characteristics of me City as they relate tome cumulative impact of federal
and state mandates, and other competing interests.
2. Provide the Qty with technical assistance and guidance to identify and
prioritize me mandates required by the fediaral and state programs
administered by the agency;
^ ' ' '" '!-., '
3. Work cooperatively with me City to help identify appropriate funding
sources to finance work needed to meet the mandates; - .
4. Develop a final report addressing me assessment with recommendations
which will be provided to the City; and
5. Work cooperatively and share all information developed for mis pilot
project with the City and participating agencies.
j . ' ..''."
As a pilot community, the City commits to work cooperatively with the DEQ in
undertaking the steps necessary for successful completion oif the project Further, the
City commits to cany out a public participation program iii the community that will
result in defining the relative urgency of addressing the nuindates and threats to the
environment and public health. . !
The City commits to meet the following entry-level criteria to participate in the
Community Mandates Pilot Project:
1. Be a GEM Community at the time this commitment is signed, or
within thirty (30) days of its signing;
2. The community must indicate through, active participation in a
community meeting to be held within thirty (30) days of the signing
, of this MOU that there is a willingness on the part of the
community to evaluate community mandates and their impact on
the community;
3. At this community meeting create a Community Task Force to work
with the mandates research team; and
4. Adoption of this MOU by resolution.
A-5
-------
Community Mandates Pilot Project
Community Agreement
1 A process to negotiate a
DEQ and the City as soor
uns^ , schedule, will fully
- - *e, those enviroi
non-environmental mandates;
defined in the agreement; and
SIGNATURES
to its content
Dates this
.day of.
address, where legal and
to
under^^^
For the City of Hagennan:
Quality:
£/-c&
0/7g>h4
Date
Name
A-6
-------
WO North Mm.!
September 29,1994
The Honorable James Norwood
Mayor, City of Hagerman
110 West Main Street
P.O. Box 158
Hagerman, Idaho 83332
Dear Jim: -
Thank you very much for sending the approved memorandum of understanding form
the City of Hagermaiu Enclosed with this letter is the memorandum sighed by Joe
Nagel, administrator of the DEQ. .
In the very near future I would like to talk with you about arranging a meeting in
Hagerman to discuss the future activities of the mandates project I will be calling you
next week to discuss this.
Thanks again. I'm looking forward to working closely with you and the community to
achieve the goals of the mandates project
Sincerely,
\
C«dl B. AndM. Oflwwof
Billjarodd
Chief, Research and Analysis Bureau
enc
A-7
P r i i t a
K e v s ' *
\
-------
ENVIRONMENTAL MANDATES
The term -mandate" as used in this project has three
basic components :
* f^A^mi n-r state law requiring mandatory compliance on
1} thlpSl of cfties, Bounties, special taxing districts,
and non-profit and for profit providers of goods and
services; ,
2) A federal or state law that is not funded by the
originating authority; and
"
compliance.
Federal
Clean Air Act Amendments (40 CFR Part 60) :
C ^standards of performance for incinerators
ombustion Emssxo
-
Ea: Municipal Waste Combustion Emssxon
Guidelines
Solid Waste Landfills
Woods toves /Fireplaces (PM-10)
New Vehicle Standards- urban buses
State
Highway District and Depart of Transportation anti-skid ordinances
7-29-94
A-8
-------
A-9
-------
WATER QUALITY
Federal
DRINKING WATER REGULATIONS (40 CFR Part 141) :
Monitoring and Reporting Requirements:
* Colifonn monitoring (Coliform and Total Coliform)
* Monitoring required of SW sources under Surface Water
* Son!Sr?ngRriquired of GW sources that may be xmder-the direct
influence of SW based on results of initial screen ,
* SorgSic chemicals (IOCs) ; including nitrate/nitrite, sodium,
* VolatilS 0?ganicechelicals (VOCs) (Phases I, II, and V)
* Synthetic Organic Chemicals (SOCs) (Phases II and V)
* Radionuclides
* Lead and Copper MCLs
* Trihalomethanes
Treatment Requirements or other Capital Improvements Needed for
Compliance with an MCL or Trigger Level:
* Treatment for all surface water sources (or developing an
alternative source, or consolidation with another system)
* Treatment for groundwater sources under the direct influence
of surface water (or other action to meet requirements)
* Lead and Copper Corrosion Control/lead service line
* LladaM?teri'aie Ban-bans use of materials containing lead in
* ?Sitment?edeve'lop^Snt of alternative source or consolidation
that may be needed to comply with an MCL
* Capitol improvements to update, old deteriorating distribution
systems to maintain compliance with bacteria MCL
Other Requirements:
* Certified operator for public water systems with surface
sources ...
* Public notification for all violations
* Record keeping
GROUND WATER:
* . Ground Water Under the Direct Influence (GWUDI) with surface
water treatment rule .
Underground Injection Control Program (40 CFR 144)
* Sole-source Aquifer (SSA)
HMTOAtfB.LST 7-29-94
A-10 .
-------
State
State of Idaho has adopted all federal regulations by
The
reference. In addition, there are a number of state
drinking wat er
requirements that relate to the construction or modification of
water systems. These include requirements' for well-lot size;
engineering review of plans, specifications, and design and
construction; and backflow prevention programs.
SURFACE WATER:
*
*
Clean Lakes Act
Nutrient Management Act
GROUND WATER:
* Ground Water Protection Act (39-126 Idaho Code
WASTEWATER
Federal ;
PRETREATMENT REQUIREMENTS (Part 401, 402, 403)
* Secondary (Tertiary) Treatment of Municipal Wsistewater (Part
133)
* Sewage Sludge Use and Disposal
* National Pollution Discharge Elimination System {NPDES) (Part
122) .
* Storm Water
* Sub-surface Sewage Disposal (Title I, Chap 3)
* Land Application (Title I, Chap 17)
* National Toxics Rule
State
Idaho Water Quality Regulations and _ Wastewater Treatment
Requirements: UST and Hazmat Remediation
MANDATE.LST 7-29-94
A-ll
-------
HAZARDOUS WASTE AND SOLID WASTE
Federal
* CERCLA: As it relates to cost recovery in the clean-up of
local landfills and old dump sites.
* RCRA, Subtitle C: Hazardous Waste Disposal
* RCRA, Subtitle D: Municipal Solid Waste Disposal
and Title 39, Chap 76; includes design, performance and ground
water monitoring requirements for municipal landfills .
* RCRA, Subtitle I: Underground, Storage Tanks (USTs)
Technical Requirements and Financial Responsibility
* SARA III: Emergency Planning . and Community Right-To-Know
* Reimbursement to Local Governments for Hazardous Response to
Hazardous Substance Releases
MISCELLANEOUS
Federal
* Asbestos in schools and other government buildings (Part 753
CFR) . '
* Lead (40 CFR 754) , '
* FCB's (Toxic Substances Control Act) (Part ,761 CFR)
* Water and Wetlands Protection (CWA Section 230: Sec. 404)
* Pesticides (40 CFR Part 165) Subchapter E: Regulations for
acceptance of certain pesticides and . recommended procedures
for disposal and storage of pesticides and pesticide
containers
State
/
Health Districts:
State Environmental Health Code:
* District Health Codes .
* Critical Materials Regulations (storage and containment) .
NON-ENVTRONMENTAI. MANDATES ,
Federal '
* Americans with Disabilities Act
* The Brady Law
* National Voter Registration Act m-**--; fnr
* Federal Highway Administration Drug and Alcohol Testing for
commercial licenses
* Motor Voting
* Truth in Taxation Advertisements ,
MANDATE.I.ST 7-29-94
A-12
-------
State
* Schools/education
* Police protection
* Local Planning Act
MANDATB.LST 7-29-94
A-13
-------
-------
Appendix B Oregon Project Materials
A. Project Fact Sheet
B. Nyssa-ODEQ-OHD Community Agreement
C. Nyssa-ODEQ-OHD Mutual Agreement and Order
D. Nyssa - ODEQ Mutual Agreement and Order Implementation Agreement
B-l
-------
Environmental Partnerships for Oregon Communities
Fact Sheet
Objectives: Oregon DEQ is developing a new-cooperative-approach to assisting small
communities comply with environmental mandates. The goal's of DEQ's project
are to:
1. Establish multi-agency teams to assist communities identity, define, evaluate,
and prioritize mandates.
2. Negotiate an enforceable agreement and schedule for achieving compliance.
3. Inform and involve citizens with decision-making.
Overview: The project is being piloted in three Oregon communities: Nyssa, Powers, and
Rainier. The project is composed of four phases:
a diagnostic of environmental, economic, and social conditions
an analysis of the "urgency" of addressing various mandates
the ranking of community priorities
the signing of a mutually agreed-upon compliance order by the community
and State regulatory agencies.
Scope: The focus of these pilots is environmental mandates (both State and federal);
however, non-environmental mandates are discussed in contextual settings.
Schedule: Nyssa: selected 12/93 draft order 11/94
Powers: selected 1/94 draft order 12/94
Rainier: selected 9/94 draft order 6/95
Lead Agency: Oregon Department of Environmental Quality
Contacts: Dick Nichols, Manager,
Pete Dalke, Interagency Coordinator
Sharon Morgan, Project Coordinator
B-2
-------
Communities: Nyssa, Oregon (pop. 2,640), approx. 400 miles SE of Portland on Snake
River/Idaho border. j
Powers, Oregon (pop. 680), approx. 225 miles south of Portland near Siskiyou
National Forest.
I. ' .
Rainier, Oregon (pop. 1685), approx. 50 miles north of Portland on Columbia
, River/Washington border.
' 'i
Selection: Communities were selected with consideration given to the following criteria:
"small" (no strictly defined population)
multiple mandates applicable
compliance issues, i.e., current compliance order
inter-jurisdictional issues
transferability of lessons learned
- commitment to public participation !
desire for economic redevelopment
Partners: Oregon Health Division (PWSS Program Primacy)
Oregon Economic Development Department
Resources: 2 fte (4 part-time positions)
Funded primarily through Oregon lottery funds.
Advisory Committee:
Citizens Advisory Committee facilitated by ODEQ. Membership includes five
city managers, county commissioners, environmental [groups, the League of
Women Voters, Oregon Health Division, and Oregon [Economic Development
Department. i
B-3
-------
IIVABLE COMMUNITIES PILOT PROJECT
COMMUNITY AGREEMENT
This Agreement sets forth general understandings and expectations for participating in
the Livable Communities Project. Parties to this agreement are the City of Nyssa (City)^ the
Oregon Health Division (OHD) and the Oregon Department of Environmental Quality (DEQ).
The Agreement is not a contract or other form of legally binding document; however, this
document does serve to formally recognize the commitment of all parties to carry out their
respective intentions and responsibilities.
PREAMBLE
As environmental and public health regulations have developed rapidly over the past
several years, many communities face multiple state and federal mandates in the areas of
wastewater treatment, safe drinking water standards, solid and hazardous waste management and
air quality. Smaller cities with fewer administrative, technical and financial resources are
particularly hard hit. Noncompliance can pose a public health and/or ecological nsk and, at the
same time, Umit the ability for a city to accommodate new industries.
The Livable Communities Project is intended to help small and rural municipalities meet
the requirements of these environmental mandates. It will provide a process through which
small and rural communities can prioritize their environmental needs and coordinate a long-term
strategy for achieving and maintaining compliance with the mandated requirements.
Participation in the Livable Communities Project in no way relieves the community from
compliance with all applicable federal and state laws, rules, and regulations.
COMMITMENTS
All parties to this Agreement commit their full faith and effort to successfully achieve
the results herein described.
The DEQ and OHD commit to provide the City with technical assistance and guidance
to meet the mandates required by the federal and state programs administered by the two
agencies. DEQ and OHD will work cooperatively with the City to help identify appropriate
funding sources to finance work needed to meet the mandates.
The City recognizes that the environmental mandates to be addressed under this pilot
project are required by state and federal law and/or rules adopted pursuant to those laws. The
REV 1-27-94
B-4
-------
B-5
-------
Livable Communities Pilot Project
Community Agreement
CityofNyssa '
pilot project is not intended to relieve the City of these mandates, but, instead, is a means to
kbftfth a reasonable and mutually-agree-upon schedule to comply witii the mandates. In
anving at an acceptable schedule, the City, DEQ, and OHD recognize that the schedule must
be compatible with the limited resources available to the City.
As a pilot community, the City commits to work cooperatively with the COT and DEQ
in undertaking the steps necessary for successful completion of the project Further, tiie City
commits to cany out a public participation program in the community that will result m defining
the relative urgency of addressing the mandates and threats to the environment and public health.
Results expected upon completion of the Livable Communities pilot project include:
1 Execution of a legally enforceable agreement negotiated between the State and
the City by December 31, 1994. This agreement, including a compliance
schedule will fully and effectively address those environmental mandates
applicable to the City, and may at the discretion of the City include other non-
mandated environmental issues. The negotiated agreement and schedule wiU take
into consideration resource limitations of the community as well as availablity of
financing from outside sources;
2 Evidence that the City has actively sought public participation and input into
appropriate phases of project. The general citizenry of the City should be
effectively informed of the issues, have input into the prioritization of the
mandates, and support the results as defined in the agreement; and,
3 The City's assurance that the environment of the State of Oregon is
reasonably protected during the term of the Agreement such that there is no
permanent, long-term damage to an ecological resource and there is no significant
risk to the public health of Oregon's citizens.
REV 1-27-94
B-6
-------
Livable Communities Pilot Project
Community Agreement
City of Nyssa
SIGNATURES
By signing this Agreement, all parties acknowledge their full understanding of and agreement
to the content of this document.
Dated this
dav of
. 1994.
For the City of Nyssa
Name
Date
For the State of Oregon, Department of Environmental Quality:
4-08-
Name
Title
Date
i
For the State of Oregon, Department of Human Resources, Health Division
io,
Name
Title
Date
REV 1-27-94
B-7
-------
BEFORE THE ENVIRONMENTAL QUALITY COMMISSION
AND
THE OREGON HEALTH DIVISION
OF THE STATE OF OREGON
IN THE MATTER OF:
CITY OF NYSSA,
) MUTUAL AGREEMENT
) AND ORDER
) No. MM-ER-94-245
) MALHEUR COUNTY
WHEREAS:
1. The City of Nyssa (City), the Oregon Health Division (OHD) and the Oregon
Department of Environmental Quality (DEQ) have voluntarily committed to participate in the
Environmental Partnerships for Oregon Communities (EPOC) project. The purpose of this
project is to assist the City in identifying, evaluating, prioritizing and complying with state
and federal environmental mandates.
2. The City, OHD, and DEQ recognize that participation hi the EPOC project does
not relieve the City from complying with the state and federal environmental mandates. A
schedule for achieving compliance with the identified mandates as soon as practicable shall
be included in this Mutual Agreement and Order (MAO).
PAGE 1 - MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
B-8
-------
SECTION I: WASTEWATER TREATMENT FACILITIES
3. The City owns and operates an activated sludge wastewater treatment plant with
, . - . | . i .
a dry weather design flow of 0;8 million gallons per day (MOD). On February 16, 1993,
the DEQ issued National Pollutant Discharge Elimination System (NFDES) Waste Discharge
! - '
Permit Number 101048 (Permit) to the City. The Permit authorizes the City to construct,
install, modify or operate wastewater treatment control and disposal facilities (facilities) and
discharge treated wastewaters into the Snake River, waters of the state, in conformance with
the requirements, limitations and conditions set forth in the Permit. The Permit expires on
i
November 30, 1997.
'i ' '
4. A review of the 1992 and 1993 discharge monitoring reports (DMRs) reveals
numerous permit violations. Schedule A, Condition l.a. of the Permit specifies discharge
limits which the City, due to inadequate sewerage facilities, as well asi deficient operating
procedures, has been unable to consistently meet in the past and is Unlikely to consistently
" " ' '
meet in the future with the existing facilities. |
5. Some problems that may contribute to the facilities violating the Permit have
been identified and include, but may not be limited to: j
(i) The majority of the plant components are 25 years old and hi need of repair or
, jj ,
replacement.
1 .
(ii) The collection system sewers have been installed on a relatively flat grade,
allowing the build up of sewage hi the lines and the creation of hydrogen sulfide gas.
Hydrogen sulfide gas corrodes the concrete pipes causing failures hi the collection
' i
--. ~
'system. ... ; - ||.'
(iii) The collection system, and ultimately the treatment facilities, receives extraneous
amounts of infiltration and inflow (I/I). !
PAGE 2 - MUTUAL AGREEMENT AND ORDER (TOAWC13\WC13090W.5]i
B-9
-------
3
4
5
6
7
8
9
10
11
12
13
4
15
16
17
18
19
20
21
22
23
24
25
26
i7
28
6. Condition 1 of Schedule A of the Permit does not allow the City to exceed the
following waste discharge limitations:
(1)
Outfall Number 001
May 1 - October 31:
Average Effluent
Concentrations
Monthly Weekly
Parameter
BOD5
TSS
Effluent Loadings
Monthly Weekly Daily
Average Average Maximum
Ib/dav Ib/dav Ibs
20 mg/1
20 mg/1
30 mg/1
30 mg/1
130
130
200
200
260
260
(2) November 1 - April 30:
Parameter
BOD5
TSS
Average Effluent
Concentrations
Monthly Weekly
Effluent Loadings
Monthly Weekly Daily
Average Average Maximum
Ib/dav Ib/dav Ibs
30 mg/1
30 mg/1
45 mg/1
45 mg/1
200
200
300
300
400
400
(3)
Other Parameters (year-round)
Fecal coliform/100 ml
pH
BOD5 & TSS percent removal
efficiency
Limitations
Shall not exceed 200/100 ml monthly
geometric mean, and 400/100 ml weekly
geometric mean.
Shall be within the range 6.0-9,0
Shall not be less than 85% monthly
average.
7. During the time period the Permit has been in effect, the City has not been able
to consistently meet all the effluent limitations in Paragraph 6. DEQ and the City recognize
that until new or modified facilities are constructed and put into full operation, the City will
likely continue to violate the Permit.
8. In addition, other wastewater.treatment violations include:
The City's discharge contains residual chlorine, which has likely violated water quality
standards for toxicity both inside and outside the mixing zone specified in the Permit. The
PAGE 3 -
MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
B-10.
-------
City's discharge will likely continue to violate water quality standards for toxicity until new
or upgraded sewerage facilities are constructed and placed into operation. Chlorine is used
to reduce fecal coliform levels hi the treated wastewater in order to meet the fecal coliform
- _' . . . i". "
limitations hi the Permit.
- - . "'!-'
i
9. The City was awarded a $20,000 grant through the Community Development
Block Grant (CDBG) Program to assess the condition of the collection system and quantify
_ i
the amount of I/I entering the facilities. A second grant was awarded from the
Water/Wastewater Financing Program (administered by the Oregon Economic Development
Department) to perform an operations and maintenance (O/M) evaluation of the treatment
, ., . - '. v ! ,.' ' .
plant components and operational processes. Two separate reports documenting these studies
are scheduled to be completed by February 1995. The purpose of the!reports is to identify
necessary corrective measures required to achieve Permit compliance.
PAGE 4 - MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
B-ll .1
-------
1
2
3
4
5
6
7
8
9
10
11
10. The City is presently capable of treating its effluent so as to meet the following
interim effluent limitations:
Outfall Number 001
(1) May 1 - October 31:
Effluent Loadings
Parameter
Average Effluent Monthly- Weekly Daily
Concentrations Average Average Maximum
Monthly Weekly Ib/dav Ib/dav Ibs
BOD< 25mg/l 40mg/l 130 200 260
TSS 45mg/l 65mg/l 150 250 270
(2) November 1 - April 30:
Effluent Loadings
Parameter
Average Effluent Monthly Weekly Daily
Concentrations Average Average Maximum
Monthly Weekly Ib/dav Ib/dav Ibs
BODl35mg/l 50mg/l 200 300 400
TSS 45mg/l 65mg/l 200 300 400
12
(3) Other Parameters (year-round) Limitations
13
.Fecal coliform/100 ml Shall be kept as low as practicable.
pH Shall be within the range 6.0-9.0
BOD5 percent removal Shall not be less than 80% monthly
efficiency average
TSS percent removal Shall not be less than 70% monthly
4
15
16.
efficiency average.
17
11 The DEQ and the City recognize that the EQC has the power to impose a civil
18
uenaltv and to issue an abatement order for violations of conditions of the Permit.
19
Therefore, pursuant to ORS 183.415(5), the DEQ and the City recognize the need to settle
20 '
those past violations referred to in Paragraphs 4, 7, and 8, and to limit and settle any
21
possible future violations referred to in Paragraphs 4,7, and 8 by this MAO.
22
12 This MAO is not intended to settle any violation of any interim effluent
23
limitations set forth hi Paragraph 10 above. Furthermore, this MAO is not intended to limit,
24 .
in any way, the DEQ's right to proceed against the City in any forum for any past or future
25
violations not expressly settled herein.
26
PAGE 5 - MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
28
B-12
-------
WASTEWATER TREATMENT FACILITIES SCHEDULE !
NOW THEREFORE, it is stipulated and agreed that:
13. The EQC shall issue a final order: ;
A. Requiring the City to comply with the following schedule:
(1) By no later than February 28, 1995, the City shall complete the
i '
I/I study and submit a report to the DEQ for review and approval.
(2) By no later than February 28, 1995, the Ciity shall complete the
O/M evaluation of the treatment facilities and submit a report to DEQ for
review and approval. ;
' - '!"'
(3) (i) As soon as practicable, but by no later than six (6) months
i
after DEQ approval of the O/M evaluation report referred to hi
Paragraph 13.A.(2), the City shall have implemented the
recommendations and achieved compliance with all current
' - _: . \ ' ' '".'.
Permit requirements. j
(ii) If the two reports referred to in Paragraphs 13.A.(l) and
13.A.(2) recommend improvements or upgrades that will take
longer than six (6) months to complete in order to achieve
.compliance with all current Permit requirements, then the City
and DEQ will negotiate a. time schedule for completing those
actions and amend this Section of the MAO.
' i . ' . '
(iii) Subject to DEQ approval, if the two reports referred to hi
'l
i
Paragraphs 13.A.(1) and 13.A.(2) recommend that plant
i ' - '
j -
upgrades or construction is required before: complete compliance
with the current Permit can be achieved, then the City shall
comply with the following schedule:
.. ' - ]-'. l"'
i - - ' ' '
' '\. '-..,.
PAGE 6- MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
B-13
-------
1 (a) By no later than one (1) year after completing the
2 . two reports referred to Paragraphs 13.A.(1) and 13.A.(2),
3 the City shall submit to the DEQ for review and approval
4 a Facilities Plan for upgrading the wastewater treatment
5 plant in order to achieve complete compliance with the
6 current Permit requirements, 40 Code of Federal
7 Regulations (CFR), Part 503 sludge requirements and
8 chlorine toxicity.
9 (b) By no later than one (1) year after DEQ approval of
10 - the Faculties Plan referred to in Paragraph 13.A.(3)(iii)(a),
11 .the City shall submit to the DEQ for review and approval
12 Plans and Specifications for upgrading the wastewater
13 treatment facilities in order to achieve complete
'4 compliance with the current Permit requirements, 40 CFR,
15 Part 503 sludge requirements and chlorine toxicity.
16 (c) By no later than eighteen (18) months from the
17 DEQ approval of the Plans and Specifications referred to
18 in Paragraph l3.A.(3)(iii)(b), the City shall complete
19 . . construction of the new or upgraded wastewater treatment
20 facilities and achieve complete compliance with the current
21 Permit requirements, 40 CFR, Part 503 sludge
22 requirements and chlorine toxicity.
23 (4) If the City can comply with the current Permit requirements by
24 implementing the O/M recommendations described in the report referred
25 to in Paragraph 13.A.(2), then the City shall address potential chlorine
26
i7 PAGE?- MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
28
. _B-14
-------
toxicity in the Snake River when so directed by the DEQ.
(5) Parties to the MAO may revise this schedule, pursuant to
Paragraph 33 below, if necessary to address other more urgent
. - _ .j . -
requirements of another Section of this MAO.
" ' *i ' '
B. Requiring the City to meet the interim effluent limitations set forth in
Paragraph 10 above until either upon completion of the O/M recommendations referred to in
.-.'. ' i ':''
Paragraph 13.A.(3) or upon completion of the upgrades to the wastewater treatment facilities
i
referred to hi Paragraph 13.A.(3)(iii)(a-c), whichever is earlier.
C. Requiring the City, should the City fail to comply with the above
schedule, to cease allowing new connections to the City's sewage collection system upon
J, . -'" "
written requirement of the DEQ.
D. Requiring the City, upon receipt of a written Penally Demand Notice from
1
the DEQ, to pay the following civil penalties:
i
(1) $250 for each day of each violation of the compliance schedule
set forth in Paragraph 13.A. i
(2) $100 for each violation of each interim wziste discharge limitation
,' ' .' " i"
set forth in Paragraph 10.
14. All reports, notices and other communications required under or relating to
Section I: Wastewater Treatment Facilities of this MAO shall be directed to the: Oregon
.'...- , j '
Department of Environmental Quality, Eastern Region, Pendletpn Office, Water Quality
Section, 700 SE Emigrant, Suite 330, Pendleton, OR, 97801, telephone number 503-276-
4063.
PAGE 8 - MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
- B-15
-------
SECTION II: DRINKING WATER SYSTEM
15. The City's source of drinking water is from six shallow groundwater wells.
Wells #1 through #4 are adjacent to the Snake River in Idaho and supply water year-round to
the City. Wells #7 and #8 are located hi the City Park and are used primarily during the
summer. Groundwater well #5 (located at First and Main Streets) and well #6 (located on
the property of the Malheur Memorial Hospital) are no longer water sources due to their
poor water quality. .The water system also consists of a 100,000 gallon steel elevated storage
8 reservoir and a three million gallon ground level storage reservoir.
16. The current system is unable to completely meet the City's water demands, and
10 at the same time, ensure sufficient reservoir capacity to guarantee adequate fire suppression
11 and water pressures throughout the system. Water rationing during peak water demands is
12 not uncommon. .
13 17. A Sanitary Survey conducted by the OHD in 1990 stated the following:
4 (i) A cross-connection control inspector is required;
15 (ii) Metering of all customers is recommended;
16 (Ui) Upgrading of chlorination storage areas is required if those facilities will
17 be used in the future.
18 18. The City received a $500,000 grant from CDBG Program and a grant/loan
19 package from Farmers Home Administration (FmHA) for $2,263,400 for drinking water
20 system improvements. The upgrades include (subject to final engineering): developing three
21 additional water supply wells; replacing deteriorating water supply lines; constructing a
22 separate water supply line from the existing well field to the City's second reservoir; adding
23 a small ground storage reservoir and booster pump station; and providing chlorination
24 facilities at both reservoirs. Also, the chipping lead-based paint on the ulterior of the
25 100,000 gallon elevated storage reservoir will be stripped and the interior re-coated. The
26
« i
^ PAGE 9 - MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
28
B-»16-,
-------
improvements are scheduled to be completed during the summer of 1995.
19. In 1991 a portion of the sewer line on King Avenue collapsed due to
deterioration caused by corrosive gases from sewage remaining in the lines. The sewer line
replacement was funded by a $150,000 grant through the CDBG Progi:am. Generally, when
groundwater is the source of drinking water, the filtration and disinfection requirements,
pursuant to Oregon Administrative Rule (OAR) 333-61-032, do not apply. However, due to
the proximity of drinking water well #7 from the collapse, raw sewage; threatened to
contaminate the well. Based on the OHD recommendation to ensure public health safety,
' ' j i
drinking water from wells #7 and #8 receive chlorine disinfection. Diinking water from well
#8 joins with water from well #7 prior to entering the distribution system.
20. The OHD has informed the City that the well field along the Snake River (wells
#1 through #4) may potentially be in direct influence of surface water sources. To verify
this condition, the OHD has required that a minimum of two (2) microscopic paniculate
analyses (MPAs) be conducted on wells #1 through #4. The results of the first MPAs
conducted in August 1994 revealed that the wells are at a moderate risik of being directly
influenced by surface water. This risk factor is significant enough that OHD has required
I
the City to conduct three additional MPAs on the groundwater drinkhig wells #1 through #4.
The three additional MPAs shall be conducted during specific times oif the year: either high
'i
surface volume in the Snake River (normally during the winter or spring when river flow is
I '."'..
high); and during high user demand when river flow is low (normally during the summer).
If the well field is determined to be hi direct influence of surface waters, additional upgrades
- I -
to the drinking water system may be required to satisfy the OHD Surface Water Treatment
Requirements (SWTR). SWTR address disinfection and filtration of Ihe drinking water prior
' i"
to distribution. Upgrades addressing disinfection and/or filtration are not included in the
i|
I
Water System Master Plan. ;
PAGE 10 - MUTUAL AGREEMENT AND ORDER (IW\WC13>WC13090W.5)i
28
B-17
-------
21. The City does not retain a cross-connection control inspector, as required by
OAR 333-61-070. . ... '
3 22. The City is not under a compliance or remedial order with the OHD.
4
5
6
7
8
9
10
11
12
13
4
15
16
17
18
19
20
21
22
23
24
25
26
»7
PAGE 11 - MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
28 B-18
-------
DRINKING WATER SYSTEM SCHEDULE
NOW THEREFORE, it is stipulated and agreed thaf:
23. The OHD shall issue a final order: ;
A. Requiring the City to comply with the following schedule:
i
(1) By no later than July 1, 1995, the City shstll submit to the OHD
a schedule for retaining a cross connection inspector, as required by OAR
333-61-070.
'"-.-. ' ' -'!'. --
(2) By no later than September 1996, the City shall complete the
MPA sampling referenced hi Paragraph 20. By no later than 1 month
from receipt of the laboratory results of each MPA conducted, the City
shall submit a copy of the laboratory results to OHD. Following each
''.,'. i .
review of the MPA sample results, the OHD will determine the next
action required by the City. If the determination is!made that the drinking
water wells #1 through #4 are directly influenced by surface water, then
the City shall comply with the following schedule:
1 '!"'
(i) By no later than one (1) year from the date OHD
concludes that the groundwater drinking wplls #1 through #4 are
' - . ' ' - ' 'i
in direct influence of surface water source!;, the City shall submit
a Facilities Plan to OHD for review and approval. The Facilities
. "i "
Plan shall describe how the City will comply with the SWTR.
I " *
(ii) By no later than one (1) year following OHD approval of
. i- . -
the Facilities Plan referred to hi Paragraph! 23.A.(2)(i), the City
'
shall complete the necessary improvements; described in the
Facilities Plan and be in compliance with the OHD SWTR.
i
11
PAGE 12 - MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5) i
, ' r\
. ' B-19 . .- ' 1. . '
-------
8
(3) Parties to the MAO may revise this schedule, pursuant to
Paragraph 33 below, if necessary to address other more urgent
requirements of another Section of this MAO.
B. Requiring the City, upon receipt of a written Penalty Demand Notice from
the OHD, to pay civil penalties of $500 for each day of each violation of the compliance
schedule set forth in Paragraph 23.A. .
24. All reports, notices and other communications required under or relating to
Section H: Drinking Water System of this MAO should be directed to the: Oregon
Department of Human Resources, Health Division, Center for Environmental Services,
700 SE Emigrant Street, #320, Pendleton, OR, 97801, telephone number 503-276-8006.
10
11
12
13
4
15
16
17
18
19
20
21
22
23
24
25
26
17 PAGE 13 - MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
281 B-20
-------
SECTION III: UNDERGROUND STORAGE TANKS ;
. I i '- .
25. In 1987 the City reported a gasoline leak from an UST at the City shop.
" -
Contaminated soil and groundwater were removed from the immediate area. Four
1 -
groundwater monitoring wells were installed around the site to monitor groundwater quality,
!
as well as to determine if contamination had migrated off-site. Pursuant to OAR 340-122-
242(2)(b), quarterly sampling of monitoring wells is required for at least one year to
" ' ' ' ' '
determine the.level of contamination at the site: The City monitored the wells for one
quarter in 1987, but no further sampling has occurred. The sampling results indicate either
low concentrations of weathered total petroleum hydrocarbons (TPH) ojr none detected.
* " . i ' '
However, high levels of Benzene where detected hi the sample from well #4.
26. DEQ records (facility ED #7677) indicate that the City decommissioned two
gasoline USTs at the City Shop in April 1988. The DEQ knows of no other USTs or sites of
former USTs for which the City is responsible. The City has no future plans of installing an
UST. . ' ' . ' . ' "
PAGE 14 - MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
' I
B-21- " '.'.'
-------
1 UNDERGROUND STORAGE TANKS SCHEDULE
2 NOW THEREFORE, it is stipulated and agreed that:
3 27. The EQC shall issue a final order: .
4 . A. Requiring the City to comply with the following schedule:
5 , (1) The City shall conduct quarterly monitoring of the groundwater
6 . monitoring wells located around the City shop according to the following
7 schedule:
8 (i) By no later than April 1, 1995, the City shall begin
9 quarterly monitoring of the four groundwater monitoring wells.
10
11
12
13
4
15
16
17
18
19
20
21
22
23
24
25
26
17
281
A minimum of one water sample from each of the four
monitoring wells taken on a consecutive quarterly basis for four
quarters all having contaminate levels below the action level is
required for final compliance. Additional sampling may be
required depending upon the analytical results of the water
samples. The sampling shall be conducted hi accordance with
OAR 340-122-242 (Groundwater Investigation and Clean-up).
(ii) By no later than one month following receipt of the
laboratory results of the groundwater monitoring samples, the
City shall submit a copy of the results to the DEQ for review.
The report shall also include the information required by OAR
340-122-242. Once quarterly monitoring is complete, the
samples analyzed and the data reviewed, the City and DEQ will
determine if additional actions may be required of the City
regarding any further monitoring or cleanup at the former UST
location at the City Shop.
PAGE 15 - MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
B-22
-------
(2) Parties to this MAO may revise this schedule, pursuant to
Paragraph 33 below, if necessary to address other more urgent
requirements of another Section of this MAO. !
B. Requiring the City, upon receipt of a written Penally Demand Notice from
the DEQ, to pay civil penalties of $250 for each day of each violation of the compliance
schedule set forth in Paragraph 27.A. :.
. i '
28. All reports, notices and other communications required under or relating to
i -'
Section HI: Underground Storage Tank Section of this MAO should be directed to the:
' . " . i
Underground Storage Tank Program, Oregon Department of Environmental Quality,
i
Eastern Region, The Dalles Office, 400 East Scenic Drive, Building #2, The Dalles, OR,
97058, telephone number 503-298-7255.
PAGE 16 - MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
B-23 ;!
-------
10
11
12
13
15
16
17
18
19
20
21
22
23
24
25
SECTION TV: APPLICABLE TO SECTIONS I. II. AND HI.
29. This MAO does not exempt the City from compliance with any new or modified
regulations that may be required in the future. The City, OHD, and DEQ agree to re-
negotiate the MAO if new, previously unknown violations are determined or if, in the
opinion of either the City, OHD, or DEQ, new environmental rules are promulgated that
affect the City's ability to comply with this MAO.
30. Regarding the violations set forth in Section I, Paragraphs 4, 7, and 8; Section
n, Paragraph 21; and Section HI, Paragraph 25 above, which are expressly settled herein
without penalty, the City and the DEQ hereby waive any and all of their rights to any and all
notices, hearing, judicial review, and to service of a copy of the final order herein. The
OHD and DEQ reserve the right to enforce this MAO through appropriate administrative and
1 i'
judicial proceedings. ' ' ,
31. Regarding the schedules set form in Section I, Paragraph 13.A.; Section n,
Paragraph 23.A. and Section m, Paragraph 27.A. above, the City acknowledges that the
City is responsible for complying with the schedules regardless of the availability of any
federal or state grant monies. .,--'.
32. If any event occurs that is beyond the City's reasonable control and that causes
or may cause a delay or deviation in performance of the requirements of this MAO, the City
/
shall immediately notify the DEQ or OHD verbally of the cause of delay or deviation and its
anticipated duration, the measures that have been or will be taken to prevent or minimize the
delay or deviation, and the timetable by which the City proposes to carry out such measures.
The City shall confirm hi writing this information within five (5) working days of the onset
of any such event, the City shall notify DEO when such events occur with the Wastewater
Treatment Facility and Underground Storage Tanks. The City shall notify the OHD when
such water events occur with the Drinking Water System. It is the City's responsibility in
26
PAGE 17 - MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
28
B-24
-------
the written notification to demonstrate to the DEQ's and/or OHD's satisfaction that the delay
or deviation has been or will be caused by circumstances beyond the control and despite due
diligence of the City. If the City so demonstrates, the OHD or DEQ shall extend times of
i
performance of related activities under this MAO as appropriate. Circiomstances or events
beyond the City's control include, but are not limited to, acts of nature, unforeseen strikes,
work stoppages, fires, explosion, riot, sabotage, or war. Increased cost of performance or
t ' . - '.
consultant's failure to provide timely reports may not be considered circumstances beyond
the City's control. ;
s \ '_''.
33. The terms of this MAO may be amended by the mutual agreement of the City,
OHD, and DEQ. !'
34. This MAO is not intended to settle any violations not known by OHD or DEQ
or any other violations not settled in this MAO. The DEQ and/or the OHD reserve the
j - "
right, however, to amend this MAO if a violation not addressed hi this|MAO poses a
significant threat to public health or the environment. If the City opposes the amended
i- .
MAO, then the City may contest the amendment according to applicable procedures of
contested cases hi such matters. j
ii
35. This MAO shall be binding on the parties and then-respective successors,
i
agents, and assigns. The undersigned representative of each party certifies that he or she is
fully authorized to execute and bind such party to this MAO.
36. The City acknowledges that it has actual notice of the contents and requirements
of the MAO and that failure to fulfill any of the requirements hereof would constitute a
.1
violation of this MAO and subject the City to payment of civil penalties pursuant to
Paragraphs 13.D., 23.B., and 27.B. above.
37. Any stipulated civil penalty imposed pursuant to Paragraphs 13.D. or 27.B.
. i
(Wastewater Treatment Facilities and Underground Storage Tanks, respectively) shall be due
PAGE 18 - MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
*
, . - - -fr-25
-------
upon written demand. Stipulated civil penalties shall be paid by check or money order made
payable to the "Oregon State Treasurer" and sent to: Business Office, Department of
Environmental Quality, 811 S.W. Sixth Avenue, Portland, Oregon 97204. Within 21 days
of receipt of a "Demand for Payment of Stipulated Civil Penalty" Notice from the DEQ, the
City may request a hearing to contest the Demand Notice. At any such hearing, the issue
shall be limited to the City's compliance or non-compliance with this MAO. The amount of
each stipulated civil penalty for each violation and/or day of violation is established in
8 advance by this MAO and shall not be a contestable issue.
38. Any stipulated civil penalty imposed pursuant to Paragraph 23.B. (Drinking
10 Water System) shall be due upon written demand. Stipulated civil penalties shall be paid by
check or money order made payable to "Oregon State Treasurer" and sent to: Business
Office, Center for Environment and Health Systems, Oregon Health Division, 800 NE
Oregon Street, Suite 608 #21, Portland, OR 97232. Within 21 days of receipt of a
"Demand for Payment of Stipulated Civil Penalty" Notice from the OHD, the City may
request a hearing to contest the Demand Notice. At any such hearing, the issue shall be
limited to the City's compliance or non-compliance with this MAO. The amount of each
stipulated civil penalty for each violation and/or day of violation is established in advance by
this MAO and shall not be a contestable issue. ,
39. The effective date of this MAO is the date the OHD signs the MAO or the date
DEQ signs the MAO, whichever date is later.
40. Providing the City has paid hi full all stipulated civil penalties pursuant to
Paragraphs 37 and 38 above, this MAO shall terminate 60 days after the City demonstrates
full compliance with the requirements of the schedules set forth in Paragraphs 13.A., 23.A.
and 27.A. above.
11
12
13
15
16
17
18
19
20
21
22
23
24
25
26
'.7
PAGE 19 - MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
28
" B-^26
-------
CITY OF NYSSA
Date
J.R. Shuster
Mayor
DEPARTMENT OF HUMAN RESOURCES
OREGON HEALTH DIVISION |
Thomas W. Johnson, Director
Center for Environment and Health Systems
DEPARTMENT OF ENVIRONMENTAL QUALITY
Date
Lydia Taylor, Interim Director
IT IS SO ORDERED:
FINAL ORDER
DEPARTMENT OF HUMAN RESOURCES
OREGON HEALTH DIVISION
Thomas W. Johnson, Director
Center for Environment and Health Systems
Pursuant to ORS 448.175
Date
ENVIRONMENTAL QUALITY COMMISSION
PAGE 20 -
Lydia Taylor, Interim Director >
Department of Environmental Quality
Pursuant to OAR 340-11-136(1)
MUTUAL AGREEMENT AND ORDER (IW\WC13\WC13090W.5)
- ' B-27 ; . -
-------
MUTUAL AGREEMENT AND ORDER
IMPLEMENTATION AGREEMENT
CITYOFNYSSA
The purpose of the Implementation Agreement is to identify the responsibilities of the
Environmental Partnerships for Oregon Communities (EPOC) Program team members involved
m implementing the Mutual Agreement and Order (MAO) for the City of Nyssa. Thisdocument
clarifies the implementation process to not only ensure that the MAO is properly tracked and
enforced, but also to identify specific staff persons responsible for assisting the City with
achieving compliance with the MAO.
The Implementation Agreement also outlines the process for amending the MAO.
The City of Nyssa, the Oregon Health Division (OHD) and the Department of Environrnental
Quality (DEQ) are participating in the EPOC Program. The basic premise of the EPOC
Program is that often times small communities lack the adrninistrative and financial capacity to
simultaneously address the numerous federal and state environmental mandates. Participation
in the EPOC Program allows Nyssa, with the assistance of OHD and DEQ, to identify the non-
compliance issues, prioritize the actions required to achieve compliance, and establish a schedule
for completing those actions and achieving compliance in a reasonable amount of time.
Nvssa's compliance status with the environmental requirements was determined Abased on
information compiled by OHD, DEQ and Nyssa. A schedule was established accordmg to this
information and is included in a MAO. The MAO, as well as the compliance schedule, reflect
information available up to the time the MAO was issued. If in the future new information
reouires additional or modifications of commitments on the part of Nyssa in order to achieve
compliance with the environmental mandates, then the MAO compliance schedule(s) may be
revised according to the MAO Addendum Process described below.
The EPOC Program parties responsible for implementing the MAO are:
I. Department of Environmental Quality, Eastern Regional Offices
H. Environmental Partnerships for Oregon Communities, Department of
Environmental Quality (EPOC DEQ);
m. Environmental Partnerships for Oregon Communities, Oregon Health Division,
Center for Environment and Health Systems (EPOC OHD);
IV. Department of Environmental Quality, Enforcement Section
REVISED 12-20-94 ~l~
B-28
-------
I. DEQ Eastern Regional Offices
The DEO Eastern Regional Offices are responsible for:
1. Designating a contact person(s) responsible for accepting reports/correspondence
from the City. If the contact person(s) should change, then the Regional
Administrator or appropriate Program Manager will appoint a replacement. The
City will be notified hi writing of this change.
2. Tracking compliance dates and ensuring that the requirements of the MAO are
satisfied for the following Sections of the MAO: Wastewater Treatment Facilities
and Underground Storage Tanks. '
3. Providing technical assistance, as needed, to the City in order to achieve
- compliance with the MAO.
4. Reviewing and providing comments on reports submitted by the City, as required
in the MAO. If DEQ is unable to approve a report, pursuant to MAO
requirements, then the DEQ will provide the City with: recommendations that, if
incorporated into the report, will allow approval. DEQ staff will provide
comments and/or approval within 30 days of receipt of reports or other
documents, unless otherwise agreed to by the Regional Administrator.
5. Updating EPOC team members of the City's compliance status with the MAO.
Update information may be provided in the form of meetings or conference calls
when necessary or at a time interval agreed to among DEQ staff members.
6. Notifying EPOC DEQ staff of the need for an addendum to the MAO for the
following Sections of the MAO: Wastewater Treatment Facilities and
Underground Storage Tanks.
7. Providing advice and comments on proposed addenda to the following Sections
of the MAO: Wastewater Treatment Facilities and Underground Storage Tanks.
DEQ Regional approval of any addendum will be required prior to its issuance.
I .
8. Signing the ImplementationAgreement. The Eastern Regional Administrator will
sign the Implementation Agreement for the DEQ Eastern Region. A copy of the
Implementation Agreement will be routed to the Program Managers whose
Programs are included in the MAO, as well as appropriate DEQ staff.
REVISED 12-20-94 \ - 2 -
B-29 .
-------
H. Environmental Partnerships for Oregon Communities (EPOC) ,
"RPQC DEO staff are responsible for:
1. Designating a project coordinator. If the project coordinator should change, then
the EPOC Program Manager shall appoint a replacement. The City will be
notified in writing of this change.
2. Meeting and discussing with the DEQ Regional staff and OHD staff regarding the
City's progress with satisfying the conditions of the MAO.
3. Negotiating, drafting, and reviewing addenda to all Sections of the MAO.
4. Adininistratively tracking all addenda to the MAO. EPOC DEQ staff will route
copies of the issued addenda to the DEQ Regional Office, OHD, and other
interested parties.
5. Signing the Implementation Agreement. A copy of the Implementation
Agreement will be routed to all EPOC team members. The EPOC Program
Manager will sign the Implementation Agreement for the DEQ EPOC Program.
EPOC OHD staff (Pendleton Office') are responsible for:
1. Designating a contact person responsible for accepting reports/correspondence
from the City. If the contact person should change, then the OHD EPOC
Program Manager will appoint a replacement. The City will be notified hi
writing of this change.
2. Tracking compliance dates and ensuring that the requirements of the MAO are
satisfied for the Drinking Water System Section.
3. Providing technical assistance to the City, as needed, hi order to meet compliance
dates and satisfy the Drinking Water System Section requirements in the MAO.
4. Updating DEQ staff of the City's progress hi achieving compliance with the MAO
for the Drinking Water System Section. :
5. Notifying EPOC DEQ staff and DEQ Eastern Region staff of the need for an
addendum to the Drinking Water System Section of the MAO, if necessary.
6 Negotiating, reviewing, and commenting on addenda to the Drinking Water
. System Section of the MAO. OHD approval of any addendum will be required
prior to its issuance.
REVISED 12-20-94 . . ~3~
B-30
-------
7. Signing the Implementation Agreement. The Director of the Center for
Environmental Systems, Oregon Health Division, will sign the implementation
Agreement. A copy of the Implementation Agreement will be routed to
appropriate OHD staff. - /
- , ₯ i
IV. DEQ Enforcement Section j
i .
The DEO Enforcement Section is responsible for:
1. Reviewing and commenting on any addenda to an EPOC MAO.
2. Ensuring that the addendum process is consistent with other DEQ Programs and
Regions. j
3. Signing the Implementation Agreement. The manager of the Enforcement Section
will sign the Implementation .Agreement. A copy of the Implementation
Agreement will be routed to appropriate DEQ staff hi the Enforcement Section.
REVISED 12-20-94
-4.
B-31
-------
CONTACTS
To assist the City with satisfying the requirements of the MAO, this list of contact persons is
provided All reports, notices, and other communications required relating to the MAO shall
be directed to the following persons and Programs. If a contact person for a Section of the
MAO changes, then the Regional Administrator, or appropriate Program Manager, will appoint
a replacement. The City will be notified in writing of this change. .
-Wastewater Treatment Facilities: .
For issues involving Section I: Wastewater Treatment Facilities of the MAO, the City
shall contact Mr. Don Caldwell at the Oregon Department of Environmental Quality,
Eastern Region, Pendleton Office, Pendleton, Oregon, 97801, telephone number
503-276-4063.
Drinking Water System:
For issues involving Section H: Drinking Water Systems of the MAO, the City shall
contact Mr. Gary Burnett at the Oregon Health Division, Center for Environment
and Health Systems, Pendleton Office, 700 SE Emigrant Street, #320, Pendleton,
Oregon, 97801, telephone number 503-276-8006.
mvolving Section HI: Underground Storage Tanks of the MAO, the City shall
contact Mr. O.J. "Bud" Roman at the Oregon Department of Environmental
Quality, Eastern Region, The Dalles Office, 400 East Scenic Drive, Building #2,
The Dalles, Oregon, 97058, telephone number 503-298-7255.
REVISED 12-20-94 ~5~
§-32
-------
ADDENDUM PROCESS
As long as the Environmental Partnerships for Oregon Communities; (EPOC) Program exists,
the EPOC DEQ staff will manage the administration of the MAO Addendum Process, as
outlined below. DEQ Regional staff and OHD Pendleton staff will dick the City's compliance
with any addenda issued in conjunction with the EPOC MAO. The EPOC DEQ, DEQ Regional
Office and OHD shall reach complete agreement on any MAO addenda prior to issuance.
. - . . " . - ' i
' ' i ' -
In the event that the EPOC Program no longer exists, but compliance conditions of MAOs issued
through the EPOC Program remain to be satisfied, the DEQ Regional Office and OHD Regional
Office overseeing the compliance status of the MAO will assume responsibility of overseeing
the MAO addenda process.
' ,''... : - i '
" . ". i.
The following outlines the addendum process for modifying a MAO issued in conjunction with
the EPOC Program:
DEQ regional staff, EPOC OHD staff, EPOC DEQ staff arid/or the City recognize a
need to extend a compliance date or modify a compliance schedule based on new
information. A request to modify the existing MAO via an addendum is made to the
. EPOC DEQ staff from one or more of these groups. ;
; EPOC DEQ staff discuss the reasons for the modification with the DEQ regional staff,
OHD staff and the City. j
EPOC DEQ staff draft a proposed addendum to the MAO based on these discussions and
route copies for review to the DEQ regional staff, OHD staff and the City. Review
comments are submitted to the EPOC DEQ staff.
" " [..-''
EPOC DEQ staff revise the proposed addendum based on the comments received. A
revised addendum is routed to all parties for review and comment.
i
DEQ regional staff, EPOC DEQ staff, DEQ Enforcement Section, EPOC OHD staff and
the City will negotiate the contents of the proposed addendum until all parties agree to
its contents. The addendum process will not proceed until a consensus is reached.
'- " ' ! '
Once an agreement is reached on the proposed addendum, the EPOC DEQ staff will
prepare a fmal addendum for routing and signatures.
. ^ - ,| . , . -
»> EPOC DEQ staff prepare a cover letter for the DEQ Director's signature. The
cover letter and three copies of the final addendum are routed to the Director via
a signature block. The signature block includes: EPOC Manager, EPOC staff,
DEQ Regional Administrator, DEQ Regional Program Manager(s), DEQ
Regional staff (as appropriate), EPOC OHD Manager.JOHD Regional staff, DEQ
Enforcement Section Manager.
i _
' ) . \
REVISED 12-20-94 j -6-
B-33 ' ' . ' ;!-.
-------
> The cover letter signed by the DEQ Director and three copies of the unsigned
final addendum are returned to EPOC DEQ staff to be mailed to the City for
signature. .
>- EPOC DEQ staff mail the signed cover letter and three copies of the final
addendum to the City. The City signs all three copies of the final addendum and
returns them to EPOC DEQ staff. .
» EPOC DEQ staff prepare a cover letter for the EPOC DEQ Manager's signature
and mail the three copies of the final addendum (signed by the City) to the OHD
for signature.
» OHD, Center for Environment and Health Systems, Director signs ail three
copies of the final addendum and returns them to EPOC DEQ staff.
> EPOC DEQ staff prepare a memo and route the three copies of the final
addendum (signed by City and OHD) to the DEQ Director for signature.
> The DEQ Director signs the three copies of the final addendum and returns them
to the EPOC DEQ staff.
EPOC DEQ staff prepare a cover letter for the EPOC DEQ Program Manager's
signature and mail one copy of the signed final addendum to the City, the DEQ Regional
Office, and the OHD Regional office. Copies of the signed addendum will be routed to
the OHD Portland office, EPOC DEQ, and DEQ Enforcement Section for filing.
Note:
All Sections of the MAO affected by the proposed Addendum (Addenda) will be routed for
review and approval. If only one Section is affected, then only that Section will be routed. The
numbering of the paragraphs in the issued MAO will not be affected by any subsequent
Addenda.
REVISED 12-20-94 y "7 "
B-34 '
-------
ENVIRONMENTAL PARTNERSHIPS for OREGON COMMUNITIES
MUTUAL AGREEMENT AND ORDER
IMPLEMENTATION AGREEMENT |
' - ' CITYOFNYSSA
By signing below, I state that I have read the Environmental Partnerships for Oregon
Communities Implementation Agreement and that I agree to its terms. The responsibilities
assigned to me and my staff shall be carried out to the best of our abilities.
Date
Stephanie Hallock
Regional Administrator
Department of Environmental
Eastern Region
Quality
Date
VanKollias
Manager, Enforcement Section
Department of Environmental Quality
Date
Thomas W Johnson
Director
Center for Environment and Health Systems
Oregon'Health Division
Date
Richard J Nichols;
Manager, EPOC Program
Department of Environmental Quality
REVISED 12-20-94
B-35 .
-.8-
-------
-------
Appendix C - Other Flexibility Projects
The dialogue about city and towns complying with federal environmental mandates has
been intense over the past two years. Cities, directly and through their associations, have
pleaded a hardship with complying with the complete "bundle" of environmental mandates.
Smaller communities argue that, because they have few/no full-time professional staff, smaller
tax bases, and smaller training and consulting budgets, "burdens" are even greater on them.1
A number of States are attempting work with communities with limited resources by introducing
grant and compliance flexibility programs.
Nebraska Mandate Initiative i
' ' - ' .' i
Created in August 1994 by the Governor of Nebraska, the Nebraska Water Quality
Mandate Strategy intends to allow communities to prioritize compliance based upon the greatest
threats to public health, the environment, and economic sustainability. The Initiative consists
of an interagency workgroup which develops the strategy, designates possible pilot communities,
oversees implementation, and communicates with stakeholders about outcomes. The specific
objective of the pilot is to help communities comply with the law, coordinate assistance to small
communities, and provide information and recommendations to policy makers. The Pilot is
planned for two or three communities, with implementation at the community level expected to
take three months.
Alaska's Community Agreements Program
The Alaska Department of Environmental Conservation (DEC) :is in the third year of an
innovative program that establishes a framework for DEC and local communities to work
together to find solutions to locally defined environmental problems. Using a "short-hand"
comparative risk analysis, "Community Agreements" identify and rank major environmental
issues and strategies for resolving them. These Agreements provide the State with a mechanism
for direct community involvement and feedback about State and federally delegated
environmental programs, and formally commit DEC and the community to a strategy and goals
for addressing each of the communities' issues. To date, 24 Community Agreements have been
signed and 22 others are hi draft form. i
State Grant Flexibility Pilots ! . " .
ii
At least five States, along with EPA Regional Offices, are currently piloting flexible
federal environmental funding through grants. The most notable examples include
Massachusetts, Montana, New Hampshire, New York, and North Dakota.
'The federally-chartered Small Towns Task Force Advisory Committee, which advises EPA on issues of concern to small
local governments, presented EPA Administrator Carol Browner with a "Recommendations" paper in October of 1994. Two
of the Committee's four recommendations were: "EPA .should, wherever possible, exercise options to adjust its programs to
small town needs and capabilities, and should seek from Congress additional flexibility, including funding flexibility, for these
purposes", and "An informed citizenry has an inherent right in a democracy to decide how to spend its resources."
. C-l . -.
-------
The Massachusetts Multi-media Pollution Prevention Compliance/Enforcement Pilot is
an expansion of that State's 1988 multimedia pollution prevention initiative in compliance and
enforcement. The pilot involves air, water, and waste grants targeted to activities with industrial
facilities.
The New York State Multi-media Priorities Pilot is similar to the Massachusetts pilot in
that it is involves flexible grants to support multi-media inspections and permitting. The goal.of
the project is an attempt to implement "a more efficient approach to reducing environmental
risk" through cooperative technical assistance and flexible funding. The State would like
authority from EPA Region 2 to use one-half of major program grants to support multi-media
inspections and permitting.
Both the Montana and New Hampshire pilots involve water block grants. Their common
goal is a negotiated grant agreement, between the Regional Office and the States, to combine
six grants under the Clean Water Act into one award. The States are seeking these block grants
as a means of providing flexibility to tailor resources and programs to a host of activities
including cross-program, ecosystem, and pollution prevention approaches to environmental
protection.
North Dakota's Block Grant Pilot is multi-media in scope. This State is negotiating a
grant agreement with EPA Region 8 to combine twelve categorical grants into one award. The
grants would be used by the State to tailor resources and programs to a wide array of needs and,
it is hoped, reduce grant administration costs. The block grant, as envisioned, would combine
air, water, waste, toxics, and pollution prevention funds.
C-2
-------
Appendix D Measures of Success
A. STATE/LOCAL GOVERNMENT RELATIONS
Objectives: These pilots address (directly or indirectly) the politically sensitive issue of
unfunded mandates, and do so in an environment still laden with the negative
impression carried by local governments towards DEQ's. In this context we
identify three objectives:
* Establish and maintain a productive working relationship with communities.
. ;i
.
* Local governments have realistic expectation of project goals.
j .
* Local governments understand that the projects are neither a "regulatory
holiday" nor business as usual. i
: : ' , I'"
Measures: These measures try to assess the relationship from both DEQ and community
perspectives. A good working relationship and appropriate expectations would
be indicated by: , ,
* Regular communication between local governments and DEQ.
' ! - -
... . i
* DEQ allows access to necessary local governments files and facilities.
* DEQ and local governments are responsive to each pllhers inquiries/requests.
* Local governments receive enough information to be active participants hi the
process.
'.-'.' ' > . i . '
* There is an absence of "big surprises" due to misunderstandings or different
expectations on the part of local governments [
B. STATE MANAGEMENT APPROACHES
Objectives: Since these pilots represent some unique challenges to DEQ their management
approaches have contained the following two groups of objectives:
* Establish and maintain a productive working relationship with:
- program and other offices within DEQ
- other State agencies J
-. - 'i
* Advisory groups added value to the pilots by: /
- being informed enough to provide useful advice to DEQs
- acting as barometer or "radar" for important issues j
" ' ....' D-l . ' ' \ ' - ' -
-------
Measures: * Were offices within DEQ involved as necessary in the agreement?
* Did other agencies and/or groups participate?
* Did other agencies and/or groups sign off on the agreement?
* Were sufficient resources provided for the pilots?
C. URGENCY ANALYSIS
Objectives: Since the Diagnostic assessment and urgency analysis are central to the pilots, and
since they have many audiences, we have identified the following objectives:
* The urgency analysis identifies important issues for the community.
* The urgency analysis provides sufficient information on the issues to enable
discussion.
* The urgency analysis produces a defensible priority list.
* The urgency .analysis supports communication and explanation of the priorities
to outside parties (e.g. press, legislature, EPA)
Measures: These objectives could be assessed by looking at both the process of the urgency
analysis and its product:
* Reasonable consensus is reached within local governments and DEQ on the
issues identified in the urgency analysis.
* There is openness of the urgency analysis process to public participation.
* Were the highest priority issues integrated into the agreement?
* Did the urgency analysis process help in the "selling" the agreement to the local
governments and others?
D-2
-------
D. PUBLIC PARTICIPATION
Objectives: Public participation is seen by many as a central value of these pilots. We have
distinguished two kinds of objectives for the pilots: providing opportunities and
accomplishment, thus the pilots should:
* The pilot project teams inform and educate the public: about the project.
r - ' '
* The pilot project team provides opportunities for public participation.
' ' ii ~
* The pilot project achieves active participation by the public in the process,
especially the urgency analysis.
* The type of participation is representative of broad community interests.
Measures: These measures are divided according to different ways of measuring the
provision of opportunities for public participation] and achieving public
participation. i
* '
* The pilot project team held and advertised public meetings.
* The pilot project team requested and received input op written documents.
« -. ( li,
* The pilot project team used various forums, such as Rotary and other service
clubs, schools etc. i
i! . h.
. * The number of attendees and level of participation at meetings is high.
= ,i,
. , ,, i^
* The pilot project team received comments and input on documents that it
produced. . . - ;
E. LEGAL ISSUES j
Objectives: The legal issues surrounding the pilots focus on the viability of the agreement
itself; therefore, the objective is simply stated: }
* A workable agreement is achieved i
Measures: These measures assess both the success of the pilots in achieving an agreement
that works, and hi providing information to educate' future pilots. To be
successful in both requires: i
j
* The agreement meets applicable regulations. |
* The agreement identifies practical approaches to achieving flexibility.
* The agreement is defensible with respect to citizen suits and other challenges.
* Regulatory or statutory barriers are clearly identified and documented.
-------
F. MONITORING AND EVALUATION
Objectives: Pilots will only inform future projects if their experience is captured, therefore
success would be:
* A monitoring system should be established to track the implementation of the
agreements.
* The experience of communities living under the agreements should be assessed
to inform future projects.
Measures: * Does the DEQ's know the status of the pilots?
* Has there been a re-assessment of the agreements, once sufficient time has
passed?
G. NON-ENVIRONMENTAL MANDATES AND ESSENTIAL SERVICES
Objectives: Non-environmental issues were of greater concern in the initial stages of the Idaho
pilot. In Oregon, they did not appear to present the same kind of challenges--
part because Oregon DEQ set clear limits on what would be included hi the
discussions. We have therefore formulated the following objective:
* Non-environmental issues should not present a barrier to completing the
environmental portion of the agreement
Measures: * Non-environmental issues are aired in public forum.
' ' ; ' . ~
* Local government expectations regarding non-environmental issues are realistic.
H. REPLICABILTTY OF THE PILOT PROJECTS
Objectives: Ideally these pilots will educate future efforts in both their home States and
others, their objectives as pilots are therefore:
* Pilots should develop an approach that can be applied to other communities.
* The lessons from the pilots need to be institutionalized.
* The lessons learned are broad enough for application to most small
communities.
Measures: * New projects can be undertaken with less resources.
D-4
-------
I. ECONOMIC DEVELOPMENT
Objectives: Pilots provide a unique opportunity to learn about ithe relationship between
environmental protection and economic development at the local level. Success
would be:
ii
* Economic development considerations integrated into the urgency analysis and
agreement drafting process
* Pilots develop or identity new approaches to integrating economic development
into the environmental planning
i .-
Measures: * Economic development of the local government is addressed hi urgency analysis
and agreements.
* Private or non-environmental funds are leveraged in the agreement.
J. EPA ROLE
Objectives: EPA has many roles in these pilots, some of them direct, some indirect and some
silent. Success for EPA with respect to these pilots will therefore have many
sides. These include: i
. * EPA presence facilitates the projects !
,i
. . i
*.. EPA does not act as a barrier to achieving a viable agreement
i
* EPA is able to leverage its own internal resources to kssist the projects
* EPA management supports the projects in negotiations with program offices
i
Measures: * Assessment of type and level of resources dedicated to the projects (staff or
funding). j
' ' ^
;i
* EPA resources are well utilized by the States
. * States are satisfied with EPA's level of involvement.
D-5
-------
D-6
-------
-------
------- |