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 ------- ------- ------- |