( 3) Approval of minutes of Governing
Board teleconference meeting in Portland on November 22, 2002.
MOTION: Simonton moved and Seymour seconded
that the minutes be approved as written.
Motion passed unanimously.
( 4) Regulatory Issues
a. Adoption on rule writing for MLRR
rules. Lynch discussed HB 3634 rule
writing, which requires closure plans at limited exempt (LE) sites, and gave a
brief history of the issue. All input from staff is ready to go out for
technical review, and he expects to have rules for Board review in February. He
discussed the issue of non-payment of an LE fee, saying that the aforementioned
rules will address this by stating that if the fee has not been received 30
days after the anniversary date, the permittee will lose the LE status. This
would result in the need to amend the operating permit to include the LE area.
Beaulieu
added that there can be no more LEs because of prior law changes, and this fee
payment stipulation would enforce up-to-date fee payment on penalty of losing
permitted operating status. Currently, there are about 250 LEs. A discussion
followed regarding charging of a late fee, which Lynch feels might be a good
idea, if it would pay to go out and collect it. Enactment of such a fee will be
researched with Larry Knudsen.
b. Suspended status for USGS geothermal
wells. Lynch said that the two small-diameter research holes were permitted
in February of 1997 for 5-5½ years. Their expiration
date came up September 30, 2002. The Board did not have time at previous
meetings to extend suspended status for them. MLRR staff recommended that the
Board extend suspended status on these two permits (wells 101 and 102) until
July 25, 2003 to provide ample time for compliance issues prior to the arrival
of early winter snowfall.
MOTION: Haagensen moved and Simonton seconded
that the suspended status on USGS geothermal prospect permits 101 and 102 be
extended for one year, through July 25, 2003.
Motion passed unanimously.
c. SB 12 update and efforts towards
permanent rules. McConnell discussed the agency testimony presented
December 10th to the Joint Interim Committee on Natural Resources,
and gave background information. The agency will not release the IMS 22 map as
part of any SB 12 requirement; words previously in the text tying it to SB 12
have been deleted. She stated the map would be released hopefully by the end of
January as a stand-alone map.
She said DOGAMI will closely watch the evolution of any reworking of SB
12 in the legislature. McConnell said Senator Ted Ferrioli, who was involved
with the original task force on SB 12, and Representative Susan Morgan are very
interested in what happens with the bill. Ferrioli has said the bill will
absolutely be revisited. The agency has a mandate to work with cities, counties
and other state agencies, particularly the Oregon Dept. of Forestry.
The
rules triggered by SB 12, as they currently stand, have been sent to the
Secretary of State's office and should be in the next Oregon Bulletin.
Originally the second temporary
rule (rescinding the permanent rule) was written to actually start December 31,
2002. The permanent rule would have started January 1, 2003. McConnell said the
Secretary of State's office did not like that wording, so the agency made a
time change so the two rules essentially start at exactly the same time. Lynn
Perry of the Attorney General's office, who worked on these changes, will be
the agency's new backup AG.
Beaulieu explained that the intent was that the legislation be revisited
once the new session begins, with input from local government as to what didn't
work in the bill. He anticipates that changes to SB 12 will come up in a new
committee and that a legislator or committee can develop legislation.
If the legislature wants to move ahead on something, Beaulieu said
DOGAMI would want to track with that in the development of permanent rules. If
not, there will have to be a date at which the agency decides to move forward
with rule language to ensure there is something in place by June 30th;
otherwise, the temporary rule goes away at that time and the first one comes
back. In this scenario the
moratorium would possibly kick in. Discussion followed about timing so as not
to miss deadlines. Beaulieu said once the split Senate has committees, roles
will be determined and things can move forward. He added that at the last
meeting the Board gave the agency authority to begin rule writing. He feels
this is on track and will work.
Lynch commented on the great success of the Rogue River Project, in
which industry, locals, and agencies all worked together to make something
happen. It created a lot of good feelings in the area, and is one of the most
successful joint projects of its kind Lynch has ever seen. Frank Schnitzer
coordinated the project for DOGAMI and deserves a great deal of credit.
Beaulieu added that having experts in the field to work on a very difficult
problem made a huge difference. Through agency policy option packages, he wants
to get more of this kind of work done throughout the state.
( 5) Policy concerns of the Aggregate
Industry relative to the Endangered Species Act.
Rich Angstrom of OCAPA stated in general that he would like to see the
state do work towards the creation of a NOAA Fisheries exemption relative to
floodplain mining in the rules for the Endangered Species Act. The exemption would state, for example,
that if the aggregate industry mines in a certain location and a certain way,
then there is no jeopardy. The
exemption would recognize that by following prior agreed to practices the
impact of mining on endangered species had been minimized and that one could operate
without doing anything further.
In order
to make this enforceable, rules from DOGAMI are needed that would constrain one
or require one to operate in those ways.
Angstrom said stakeholders have made sure the Governor's office, NMFS,
DOGAMI, and ODF&W all have either written or stated they want to move
forward on this concept.
Lynch
added that legislative authority is not needed to go ahead with this process at
this time. Knudsen said for some of the rules that NMFS may eventually require
in such an effort that DOGAMI might not have present statutory authority to do
so. Beaulieu cautioned that the agency could enter into some kind of rule
writing on this and along the way get boxed in, because provisions required by
the federal agency conflicted with whatever agency statute says at the present
time.
Rich Angstrom, OCAPA President, requested the Board
to grant authority to John Beaulieu to start Agency rule writing on certain
Endangered Species Act (ESA) issues.
He stated it would be a very involved process that would require
stakeholders and others to work through all of the issues, with possibly some
statutory changes needed. The proposed changes would be additions to
DOGAMI's MLRR program.
Angstrom said that he thinks the framework is in place for the agency to
take on the rule writing. He envisaged the agency starting the rulemaking
process, assembling a stakeholder group, starting working on a series of rules,
and ultimately having it presented to the Governing Board for approval and
forwarding to NMFS.
In
terms of procedures for such a request, Knudsen noted that there is a provision
in the APA for a formal petition for rulemaking. If one of those is filed with
the Board, then the Board has to take steps within a certain period of time,
allowing or denying the petition in writing. If the Board fails to do that,
then it triggers a process where the agency has to start rulemaking. What he
sees on this issue before the Board at this time is an informal track along the
same lines.
Beaulieu
said he had some difficulties in terms of specifics in introducing unknowns
that the agency hasn't worked on. He said he is more comfortable being asked to
look into this than he is to immediately starting rule writing.
Haagensen requested that OCAPA put a conceptual document together describing their process so far, detailing the problem, what it means to the industry, what support they have, and what the proposed solution is. OCAPA should get this to DOGAMI before the next Board meeting so agency staff can see how the proposal would affect the department. He suggested that a report from the department could be composed covering what the administrative and financial implications might be.
Finally,
Angstrom spoke about OCAPA's legislative agenda, with one issue being which
state agency has jurisdiction over dewatering activity at mine sites. The other
issue involves possibly drafting a comprehensive mine bill now or later that
brings in all mine activity under one roof. He said that bill will have a
significant change of responsibility for DOGAMI, picking up aspects currently
under the purview of DEQ, Fish & Wildlife, mining, water issues, etc. He
said the aggregate industry feels there could be significant savings and
efficiencies to the state in consolidating all those functions, and that there
is a lot of discussion among legislators this session about consolidating
agencies.
( 6) Report
of the State Geologist.
a. Legislative insights. Beaulieu said
that a major positive after five difficult special sessions is that the new
legislators are more attuned to issues than they would be otherwise. DOGAMI
will track key legislation affecting the agency on a priority basis, and agency
response to legislation will be tiered according to priorities.
Lynch
commented on legislation affecting the MLRR program, including fee bills,
contracting changes affecting the bidding process, and enforcement actions of
having site boundaries be surveyed in. Beaulieu added that in the last
legislative session, the surveying community came in with an attempt to
regulate global positioning system (GPS) use. They do not want the technology to transplant surveying
where surveying is required. That legislative concept (by the surveyors) failed.
He said it is important when staff uses GPS, and in testimony, that they be
sensitive to that fact so as not to overstate what they wish the legislation to
accomplish.
b. General budget comments. Beaulieu
commented that this has probably been the most difficult budget period in over
50 years. In year 2 of the biennium, there have been cuts of about 30% to the
agency through the five special legislative sessions. Instructions have changed
11 times in contradiction; for example temporary cuts have been converted to
permanent. Also the last things to
be cut in session 5 were then viewed as the first things to be cut in
2003-2005. Going forward, Beaulieu sees fund shifts, vacancies maintained, and
lots of juggling as best one can. He hopes that the projection in which quarter
two of 2003 sees the economy begin getting up steam again is real.
c. Paper on economic values of Department
activities. Beaulieu addressed
a paper being drafted to summarize the economic benefits of DOGAMI for the
legislators. He noted that in the evolution of state geology departments, the
pattern begins with mining.
Through time the real value of such entities evolves to provide geologic
information, with the mining part becoming more regulatory. Oregon has a broad
array of geologic hazards, resource issues, environmental problems, etc., so
there is a broad base in which to base a niche, which is well defined in the
Strategic Plan. Haagensen suggested adding a paragraph with a specific,
concrete example (such as the Rogue River project) to highlight each economic
value point in the paper.
d. Status of items on Emergency Board
request. Beaulieu outlined
E-Board requests, saying the agency has to go to the E-Board to get permission
to spend more Other Funds dollars. The agency did this in September and got
permission to spend some money on the Rogue project, but not enough. Letters to
the E-Board (there were 2 from DOGAMI) are forwarded to the Legislature by the
Department of Administrative Services (DAS).
Lynch
discussed the procedures DOGAMI has had to follow to get grant money. The
industry does not fully pay for the MLRR program. To make ends meet, MLRR staff competitively go after grants.
He listed several grant areas which look promising. He continued, saying in
February they will be applying for Phase Three of the Rogue project, which will
be another $295,000 grant, plus an additional $200,000 contribution from ODOT.
The agency is going to the E-Board on January 9th requesting to
raise the limitation, so if they get the grants, they can then do the work.
( 7) Setting of Time and Place of the
next Board Meeting. The next
Board meeting will be at 9 a.m. in Portland on Wednesday, March 5, 2003.
( 8) Additional Public Comment. Larry
Tuttle discussed a lawsuit his organization is pursuing against the U.S. Forest
Service for two mine sites allegedly discharging directly to surface waters of
the state. He feels federal agencies should not be let off the hook for
carrying out their responsibilities under the Clean Water Act, thereby leaving
the state to pick up the cost. He said DEQ has spent about $1,000,000 from its
orphan site fund for remedial action at one of these sites. He questioned
whether state general obligation bond funds should be spent to clean up mine
sites on federal public lands.
James
Bela commented on his concern for delay of implementing SB 12 and the threat to
public safety resulting from debris flows triggered by rainfall. He requested
that the Board write the Building Codes Division asking for their reasons for
addressing certain land areas of high earthquake zones as they did. He also
asked for a Board letter requesting that the Governor's declaration of Oregon
as a Showcase State be rescinded, and ended by stating his opposition to the
way the new Building Codes administrator was chosen.
Meeting was adjourned at 11:50 a.m.