September 22, 2000
Bryson Twidwell
Senior Industrial Wastewater Specialist
Oregon Department of Environmental Quality
750 Front St., NE
Salem, Oregon 97301-1039
Re: Draft NPDES Permit for Oregon Metallurgical Corporation
Dear Mr. Twidwell:
Thank you for providing an extension of time for public comments on this proposed permit. By way of background for our comments, Northwest Environmental Advocates was an active participant in the Department advisory committee that helped rewrite the mixing zone rules pursuant to which this permit is proposed. We opposed the creation of the alternative mixing zone then and believe that this proposed permit demonstrates exactly why the Department should not have developed it. We are extremely disheartened by the mere fact that Oremet has applied for an alternative mixing zone of the Overall Environmental Benefit (OEB) variety and that DEQ has proposed to grant it. This is not the type of situation the OEB mixing zone was intended to address. Equally problematic is the way in which the Department has applied the rule to Oremet’s application. Specifically, if DEQ grants OEB mixing zones to permittees discharging into flow-impaired streams on no other grounds than the effluent provides flow, it will largely undermine application of the Clean Water Act to Oregon’s streams. Quite simply, the application of the OEB mixing zone to Oremet makes a mockery of the Clean Water Act.
I. General Observations
A facility with as many previous permit violations as Oremet’s should not be allowed to continue the problem perpetuated by the Department when it fails to require sufficient information prior to reissuing permits. This permit expired in April, 1996. An application was received by the Department in November, 1995. Nearly five years have passed since that application was received and yet the Department intends to issue a permit that is based on inadequate information and therefore calls for the applicant to engage in additional studies. This is because the Department has failed to require that the applicant provide sufficient information with which to analyze the permit and its ramifications for the environment. The Clean Water Act provides sufficient authorities to prevent such fiascos so there is no excuse for this failure. It is unconscionable that the Department could let so much time pass without having obtained all the necessary information. However, it is preposterous for the Department to propose that the facility obtain an Overall Environmental Benefit alternative mixing zone, an action that is supposed to be predicated on extensive studies.
It is equally ludicrous for the Department to entertain the possibility of Oremet increasing
its production and wastewater by 11 percent considering its history of violations and its complete pollution of Oak Creek. Evidently the Department thinks that such actions deserve rewards rather than sanctions. Granting an OEB mixing zone to a polluter that has played a major role in ruining the water quality of a creek is simply bad public policy.
The permit materials note that facility stormwater will be discharged from its own separate outfall: “This should reduce the number of violations of Total Suspended Solids to the wastewater system due to storm events.” Fact Sheet at 4. This statement does not indicate what success if any the new segregated stormwater system is likely to have in reducing actual discharges of pollution to the receiving stream. Elsewhere, the Department concludes that “[m]etals will be significantly reduced...” but it provides no information on the level of reductions or on the likelihood of success, which should be a significant issue given the compliance history of this facility. Fact Sheet at 17. Instead, it merely states that the two pollution sources have been separated. The issue isn’t how many pipes this facility can funnel its wastes through; the issue is how much waste it discharges to the receiving stream in toto. In addition, the failure of the Department to include information on the stormwater discharge in its analysis of the wastewater discharge precludes both the Department and the general public from analyzing the combined effect of the two discharges. The proposed permit should be withdrawn until such time as the two permits can be made available to the public concurrently.
II. Water Quality-Based Permitting
B. Water Quality of Oak Creek and the Calapooia River
Oak Creek is not listed as water quality limited on the 303(d)(1) list for any parameters. However, according to the Decision Matrix for the 1998 list, it was considered for the following three parameters: flow modification, nutrients, and sedimentation. Although there was information supporting listings for these parameters, there were no data available for these areas of information. Therefore the Department made no findings. Even so, the permit materials for this application make clear that Oak Creek violates Oregon’s biological criterion: “Waters of the state shall be of sufficient quality to support aquatic species without detrimental changes in the resident biological communities.” OAR 340-041-0027. For example, Oak Creek is found to suffer from “severe impairment.” Apenndix A at 20. It is noted that the lower Calapooia does not support salmonids, except for migration, a form of violation. Id. at 21. River flows in Oak Creek are anthropgenically depleted sufficient to cause impariment of beneficial use support. Appendix A at 12. Despite these professional judgments by the Department in support of allowing the dischrager to continue violating water quality standards throughout Oak Creek, this waterbody is not listed on the 303(d)(1) list for these biological and physical impairements.
Addition data available to the Department on pollution levels in waters of the Willamette River Basin are listed in an informal document prepared by staff. Willamette River Basin 303d List Update, January 1998, hereinafter “Update.” In this document, Oak Creek is listed as having 3 exceedances of 3 samples of fecal coliform, 3 exceedances of 3 samples of e coli, and 2 exceedances of 2 samples of dissolved oxygen, according to data obtained from the U.S. Geological Survey. As these parameters do not appear on the Matrix, Oak Creek may in fact be water quality limited for bacteria and dissolved oxygen but the Department evidently has failed to analyze the data it has. There do not appear to be available any data on toxic parameters measured in Oak Creek a fact that is ironic given the proposed permit and compliance history of the facility. However, since the Department is well aware that the lower two miles of Oak Creek have long been used as a de facto discharge ditch by Oremet, it must assume that standards are violated for all parameters discharged by the facility at least during periods of low flow rather than assuming that no standards are violated. Surely professional judgment would require the application of indisputable common sense.
The Calapooia River is listed as water quality limited on the 303(d)(1) list for the following parameters: bacteria and temperature. For the Calapooia, the Matrix also lists Benzo(K)fluoranthene, Benzo(A)Pyrene, Bis(2 Ethylhexyl)phthalate, Fluoranthene, Phenol and Pyrene as having been found in sediments, but below various guidelines or guidance values and without any toxicity studies. Benzo(B)fluoranthene, Butylbenzylphthalate, Di-n-butylphthalate, Diethylphthalate, Indeno123-cdpyrene, P-cresol and phenanthrene were also found but there are no well established guidelines available for evaluating risks, nor have there been any beneficial use impairment evaluations. In addition, the Matrix notes that Ametryn, Atrazine, Desethylatrazine, Desisoproylatrazine, Diuron, Hexazinone, Lindane, Metolachlor, Metribuzin, Prometon, Pronamide, Propachlor, Propazine, Simazine, Terbacil, and Triclopyr were found but either do not have or were below any water quality standard, guidance level or criteria. These evaluations are based on application of Oregon’s numeric criteria alone.
In addition, the Update notes that the Department has data that have been screened out by its 303(d)(1) listing methodology but which are sufficient to indicate that the Calapooia River may violate standards for the following parameters: temperature, dissolved oxygen, arsenic, cadmium, lead, dieldrin, aldrin, chlordane, ppDDT, heptachlor, mirex, PCBs, toxaphane, chromium, mangangese, copper, nickel, lindane, and endrin. The relevant methodologies are those that prevent the use of data representing single exceedances or sediment data representing exceedances but for which no bioassays were conducted.
Water quality standards referred to in federal and state regulations are defined as the designated beneficial uses in combination with the numeric and narrative criteria to protect those uses and an antidegradation policy. 40 CFR § 131.6. Numeric criteria adopted in water quality standards should be promulgated to protect the "most sensitive use." 40 CFR § 131.11(a)(1). However, since this is not always possible, the task of evaluating whether standards have been met also requires an assessment of the impact a discharge will have on the beneficial uses. The U.S. Supreme Court underscored the importance of protecting beneficial uses as a "complementary requirement" that "enables the States to ensure that each activity -- even if not foreseen by the criteria -- will be consistent with the specific uses and attributes of a particular body of water." PUD No. 1 of Jefferson County v. Washington Department of Ecology 114 S. Ct. 1900, 1912 (1994). The Court explained that numeric criteria "cannot reasonably be expected to anticipate all the water quality issues arising from every activity which can affect the State's hundreds of individual water bodies." Id. There is a substantial body of information on the effects of toxic contaminants on salmonids. Therefore, throughout its analysis of the permit, including the effect of the plume into the Calapooia on fish passage and the effect on beneficial uses in both Oak Creek and the Calapooia, the Department is required to consider whether the beneficial uses are protected.
Oregon’s current numeric criteria have been developed, with extremely few exceptions, to assess the “safe” level of pollutants to certain beneficial uses on a pollutant-by-pollutant basis. Nonetheless, these pollutants have additive and possibly synergistic effects on those uses. In addition, the “safe” level has been determined on the basis of what an ordinary population of a target species can tolerate. However, the populations of threatened and endangered, as well as candidate, species are not ordinary; they are severely depressed. As such they cannot be exposed to the same level of risk from pollutants, individually or collectively, as ordinary non-depressed populations. Specifically, the Department is required to apply the gap-filling narrative criteria and beneficial use support requirements of its water quality standards using the knowledge that the populations as a whole are more sensitive to the effects of the various pollutants. To do otherwise, in addition to violating the fundamental definition of water quality standards, is to violate the antidegradation policy which, above all, requires protection of existing uses.
Specifically, Oregon’s overall water quality standards prohibits discharges and activities that “either alone or in combination with other wastes or activities will cause violation of [state] standards.” OAR 340-041-0445(2). This includes the following narrative criteria:
(i) The creation of * * * toxic or other conditions that are deleterious to fish or other aquatic life.
(j) The formation of * * * any organic or inorganic deposits deleterious to fish or other aquatic life or injurious to public health * * *
(p)(A) Toxic substances shall not be introduced above natural background levels in the waters of the state in amounts, concentrations, or combinations which may be harmful, may chemically change to harmful forms in the environment, or may accumulate in sediments or bioaccumulate in aquatic life or wildlife to levels that adversely affect public health, safety, or welfare; aquatic life; wildlife; or other designated beneficial uses;
OAR 340-041-0445(2). In evaluating the effect of toxic discharges from the facility, the Department has failed to evaluate compliance with the narrative criterion for toxic contaminants. OAR 340-041-0445(2)(p)(A). Specifically, the Department has not evaluated whether the amounts, concentrations, or combinations of Benzo(K)fluoranthene, Benzo(A)Pyrene, Bis(2 Ethylhexyl)phthalate, Fluoranthene, Phenol, Pyrene, Benzo(B)fluoranthene, Butylbenzylphthalate, Di-n-butylphthalate, Diethylphthalate, Indeno123-cdpyrene, P-cresol, phenanthrene, Ametryn, Atrazine, Desethylatrazine, Desisoproylatrazine, Diuron, Hexazinone, Lindane, Metolachlor, Metribuzin, Prometon, Pronamide, Propachlor, Propazine, Simazine, Terbacil, Triclopyr, arsenic, cadmium, lead, dieldrin, aldrin, chlordane, ppDDT, heptachlor, mirex, PCBs, toxaphane, chromium, mangangese, copper, nickel, lindane, and endrin found in the Calapooia River may be harmful to beneficial uses individually or in combination, may chemically change to harmful forms in the environment, or may accumulate in sediments or bioaccumulate in aquatic life or wildlife to levels that adversely affect the beneficial uses. The Department does not have the option of simply ignoring data that suggest that there is a violation. It must determine whether a waterbody-parameter combination should be treated as violating water quality standards resulting in no assimilative capacity and requiring pollutant reductions or whether it is a high quality water. It must determine whether beneficial uses are supported and narrative criteria are met in order to properly evaluate the effect of the proposed discharge. And, it need not do these things at its own expense because the Clean Water Act provides for those who would contribute pollution to public waters to pay for the privilege by obtaining necessary information.
Likewise, the Department’s failure to evaluate compliance with narrative criteria by determining whether the existing and proposed discharge create toxic, other conditions, or any deposits that are deleterious to fish or other aquatic life or injurious to public health must be remedied before it proceeds to evaluate the impacts of the Oremet discharge on the beneficial uses and its compliance with Clean Water Act requirements. This includes both the Department’s failure to evaluate whether a violation of the narrative criterion for toxics has occurred in the receiving streams or, in the alternative, its failure to determine that this dischargers’ use of the assimilative capacity meets the high quality waters policy.
C. Protection of Existing Uses
The antidegradation policy requires the protection of “all existing beneficial uses.” OAR 340-041-0026(1)(a). Oregon does not include “existing uses” in its definitions. OAR 240-041-0006. It can be assumed, however, that Oregon intends the definition to be identical to the antidegradation policies required by federal law. 40 CFR §131.12(a)(1), § 131.3(e). This is namely that existing uses are those uses actually attained in the water on or after November 28, 1975. Protection of those uses as well as the water quality necessary to support those uses is an absolute requirement. Nowhere in the entire permit or fact sheet does the Department evaluate what the existing uses in either receiving stream were as of November 1975. It is also clear from the Department’s analysis, discussed throughout these comments, that it does not intend to provide this level of protection to designated uses, let alone existing uses. Therefore, the Department has not made the findings required to issue a permit that conforms with state and federal regulations.
D. Antidegradation Policy
In addition to providing protection of existing uses, the antidegradation policy requires that “the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources.” 40 CFR §131.12(a)(2) (Emphasis added). This is true regardless of whether the existing point source intends to increase, decrease or make no change in its loadings. Therefore, the Department may not exempt existing operations from the provisions of the federal antidegradation policy that requires that “existing uses shall be maintained and protected.” 40 CFR §131.12(a)(1). Nor can it exempt existing operations from that portion of the antidegradation policy that requires “[w]here the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected . . . .” 40 CFR § 131.12(a)(2). There is no evidence in the permit documents that the Department has engaged in an antidegradation review.
E. High Quality Waters Policy
Oregon’s antidegradation policy has separate requirements for water quality parameters that are deemed high quality and those that are found to be water quality limited. For those parameters discharged by Oremet for which the Department has made a determination the receiving streams are high quality – i.e., all parameters except those for which it has determined are water quality limited – the permit must meet the high quality waters policy. OAR 340-041-0026(1)(a)(A). This policy requires that the Environmental Quality Commission make the following findings in order to allow a lowering of water quality in high quality waters:
i. No other reasonable alternatives exist except to lower water quality; and
ii The action is necessary and justifiable for economic or social development benefits and outweighs the environmental costs of lowered water quality; and
iii. All water quality standards will be met and beneficial uses protected.
Id. There is no information provided in the permit or fact sheet that indicate either the Department or the Commission has engaged in this analysis or made formal findings to meet these state requirements for any parameters the Department believes to be of high quality.
Where NPDES permits are issued, EPA regulations require that the effluent limitations incorporated therein meet any additional standards and state requirements. 40 CFR 122.44(d). Specifically, "each NPDES permit shall include conditions meeting [w]ater quality standards and State requirements." Id. This section establishes the need for "any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under [other sections of the CWA] necessary to: (1) Achieve water quality standards established under section 303 of the CWA, including State narrative criteria for water quality." 40 CFR 122.44(d)(1).
These required effluent limitations "must control all pollutants or pollutant parameters (either conventional, nonconventional or toxic pollutants) which the Director determines are or may be
discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for
water quality." 40 CFR 122.44(d)(1)(i). In order to determine whether a discharge causes, has the reasonable potential to cause or contribute to an in-stream excursion above either narrative or
numeric criteria, "existing controls on point and nonpoint sources, the variability of the pollutant or polluting parameter in the effluent * * * and where appropriate, the dilution of the effluent in the receiving water" must be accounted for. 40 CFR 122.44(d)(1)(ii). In the case of the Oremet discharge, as explained above, Oak Creek and the Calapooia River violate a number of criteria and standards in addition to those on Oregon’s 303(d)(1) list. Regardless of the Department’s past failure to formally place those waterbody/parameters on the list, it must take the over allocation of assimilative capacity into account when reissuing the permit.
E. Policy on New or Increased Loads
The permit proposes to increase Oremet’s discharges of chromium, nickel, titanium and total suspended solids. Therefore, the Department must make the following findings for those parameters:
(A) The new or increased discharged load would not cause water quality standards to be violated;
(B) The new or increased discharged load would not unacceptably threaten or impair any recognized beneficial uses. * * *
(C) The new or increased discharged load shall not be granted if the receiving stream is classified as being water quality limited under OAR 340-041-0006(30)(a), unless:
(i) The pollutant parameters associated with the proposed discharge are unrelated either directly or indirectly to the parameter(s) causing the receiving stream to violate water quality standards and being designated water quality limited; or
(ii) Total maximum daily loads * * * have been established * * * or
(iii) Effective July 1, 1996, in waterbodies designated water-quality limited for dissolved oxygen, when establishing WLAs under a TMDL for waterbodies meeting the conditions defined in this rule, the Department may at its discretion provide an allowance for WLAs calculated to result in no measurable reduction of dissolved oxygen.
OAR-340-041-0026(3)(a). The Department has not made findings that the new loads would not cause violations of water quality standards or unacceptably threaten or impair beneficial uses in either Oak Creek or the Calapooia River. This requires a complete analysis of whether standards for chromium, nickel, titanium and total suspended solids are currently violated, whether narrative criteria are violated, whether beneficial uses – designated and existing – are impaired (not fully supported). Only then can the Department evaluate the effect of the proposed increases. To the extent that the Department agrees that the receiving waters should be treated as if they are water quality limited for any or all of the toxic parameters discussed above, it must either refuse to grant the increase or make the findings required by OAR-340-041-0026(3)(a)(C) that a TMDL has been established or the parameters are not related directly or indirectly to the parameters in violation.
The Department has experience with applying this prohibition on new indirect loads into water quality limited waterbodies with §402 NPDES permits. It interpreted the prohibition for suction dredge mining that is covered by a general NPDES permit. Oregon General NPDES Permit 700-J, April 9, 1997. Due to the nature of dredging, the Department initially prohibited suction dredge mining under the 700-J general permit in waterbodies where water quality standards were violated for toxic contamination and temperature but only to the extent that the activity resulted in a “measurable increase” in temperature. Id. To evaluate whether the activity would result in a measurable increase in temperature, the Department only included direct thermal loads contained in the discharge, discounting the indirect effects of the discharge on temperature in the receiving stream. The Department was sued and was ordered to revise the permit to be consistent with the state’s antidegradation policy. Letter from the Honorable William C. Snouffer, Circuit Court of Oregon, Multnomah County, to Lore Bensel, Attorney General and Peter Frost, National Wildlife Federation re: NWF et al. v. Oregon DEQ et al., Case No. 9706-04970, September 29, 1998. The Department amended the general permit to extend the prohibition to dredging in waterbodies that violate the temperature standard. As a matter of state law, the Department must apply its antidegradation policy as a prohibition to any discharge that directly or indirectly relates to the parameters for which the water body is water quality limited. Id. Here the proposed permit would allow increases of toxic contaminants into waterbodies which the evidence is likely to show violate standards including protection of existing uses, beneficial uses such as salmon, and various narrative criteria including on toxics. Therefore, the addition of increased parameters that are related to the violation of these standards is prohibited.
III. Alternative Mixing Zone: Overall Environmental Benefit
Under Oregon’s rules, an alternate mixing zone may be approved if the applicant demonstrates to the Department's satisfaction that the discharge creates an overall environmental benefit. The intent of the alternative mixing zone was to decrease the possibility that the Department would force sources to remove effluent flows in those few cases where the flows provided a benefit sufficient to justify violations of water quality standards outside an area typically granted as a mixing zone. In order that the rule not become a gigantic loophole through which the state’s dischargers could avoid the water quality-based terms of the Clean Water Act, the U.S. Environmental Protection Agency’s implementing regulations, and the State’s own rules and standards, an applicant for such an oversized mixing zone was to bear a significant burden. This burden was two-fold. First, the applicant would have to obtain extensive information that due to its cost alone would not encourage use of the option. Second, the information gathered would have to demonstrate that “on balance, an environmental benefit would be lost if the discharge did not occur, or that the discharger is prepared to undertake other actions that will mitigate the effect of the discharge to an extent resulting in a net environmental benefit to the receiving stream.” In other words, more than a slight benefit in terms of increased summertime flows would be required because if that were the criterion, the alternative mixing zone would become the loophole the Department promised it would not be. Moreover, the rules does not say that some increased flows are sufficient to warrant an OEB mixing zone but rather that a benefit would be lost if the discharge were removed.
Contrary to both the spirit and the letter of the state’s rule, the Department has proposed Oremet be granted an OEB alternative mixing zone. The Department’s finding that the discharge “creates a slight environmental benefit” is arbitrary because the facts do not support this finding and, of equal importance, the Department admits that it has insufficient information upon which to make such a finding. This admission comes in the form of numerous statements about information that is missing and must be obtained after issuance of the permit. For example, “further temperature monitoring needs to be conducted to verify if Oremet has an impact to the receiving waters of Oak Creek and the Calapooia River.” Fact Sheet at 22. Despite nearly five years in which Oremet’s permit has been expired, the Department intends to allow additional time for a dilution study “to determine the point at which thorough mixing of the Oremet effluent with the [Calapooia] stream occurs.” Id. The Department also proposes to grant Oremet four and a half years -- until March, 2005 -- in which to gather biological data on macroinvertebrate and fish survey data, data that should be required in order to issue the OEB alternative mixing zone.
The OEB rule requires studies by the applicant in advance of the Department’s determination that an alternative mixing zone is warranted. First, the rule requires the applicant to provide the effluent flow and pollutant loads that are detected or expected in the effluent, by month, both average and expected worst case discharges. The parameters to be evaluated include at a minimum temperature, biochemical oxygen demand, total suspended solids, total dissolved solids, pH, settleable solids, e. coli bacteria, oil and grease, any pollutants listed in Table 20 of this rule
division, and any pollutant for which the receiving stream has been designated by the Department as water quality limited. In response, the Department has accepted “one-time test results” from Oremet’s 1995 permit application for Table 20 pollutants. The Department does not consider one time test results performed by the nation’s premier water quality monitoring agency, the U.S. Geological Survey good enough to assess water quality of the receiving stream but it will accept one time test results from a vested interest to meet the supposedly onerous requirements of the OEB rule. Morever, in an apparent attempt to avoid concerns that the Department is not requiring the applicant to provide sufficient information, it notes in a general unquantified and unprofessional way that changes in manufacturing and wastewater treatment “will result in an overall reduction of pollutants and flows discharged.” Appendix A at 2. This is not a finding, this is a projection by a company that has repeatedly demonstrated its inability to meet state requirements.
Second, the applicant is required to provide receiving stream flow, by month. Instead, the Department allowed the applicant to estimate flows for Oak Creek. For September and October those estimates were not used however, and instead it was determined that Oak Creek might have no flows. No data were gathered to support this position, according to the analysis.
Third, the applicant is to provide the expected impact of the discharge, by month, on the receiving stream for the entire proposed mixing zone area for all of the pollutants listed above. This requires a comparison of the receiving stream water quality with the discharge and without the discharge. Instead, the Department waived the requirement for a monthly analysis and now fails to provide the public with the results of the limited modeling performed, ignores the fact that insufficient instream water quality data are available, and concludes sufficient information exists.
Fourth, the applicant is required to provide a description of fish, other vertebrate populations, and macroinvertebrates that reside in or are likely to pass through the proposed mixing zone, including
expected location (if known), species identification, stage of development, and time of year when their presence is expected. For existing discharges, the applicant is required to provide the same information for similar nearby streams that are unaffected by wastewater discharges. In addition, any threatened or endangered species in the immediate vicinity of the receiving stream must be identified. Instead, the Department accepted seven days of samples, some of which are over a decade old and none of which have been done since the expiration of the permit or specifically to support the OEB mixing zone. Biologists were asked for information about timing of migration but no attempt was made to actually collect these data nor to correlate migration timing with flow data. Next to no information was provided in the public notice, suggesting that there is little information.
Fifth, the Department requires information on the expected impact of the discharge on aquatic organisms and/or fish passage, including any expected negative impacts from the effluent attracting fish where that is not desirable. The response to this requirement is that the above surveys are sufficient. In other words, no information is provided including the effect of the discharge on fish passage in the Calapooia. This is in part because neither Oremet nor the Department knows where the mixing zone will be in that river.
Sixth, the application must include a description of the expected environmental benefits to be derived from the discharge or other mitigation measures proposed by the applicant, including but
not limited to improvements in water quality, improvements in fish passage, and improvements in aquatic habitat. If the applicant proposes to undertake mitigation measures designed to provide environmental benefits (e.g., purchasing water or water conservation rights to increase stream flows or establishing stream cover to decrease temperature), the applicant shall describe the
mitigation measures in detail, including a description of the steps it will take to ensure that the benefits of the mitigation measures are attained and are not lost or diminished over time. Here, the applicant does not propose mitigation measures of any type and the only benefit proposed is “an improvement in habitat and macroinvertebrate populations during lower flow months.” No fish passage improvements or water quality improvements are anticipated. As will be discussed below, this is not an overall environmental benefit.
Seventh, where some or all of the above study requirements are waived by the Department, it must include the basis for waiving the requirements. Evidently the casual statements about how data weren’t available are considered a sound basis for waiving requirements. This makes a total mockery of the intent of the OEB rule and demonstrates the Department’s willingness to create the largest possible loopholes for private industry for one reason: to save them money. How much money is an issue when the Department is trading off the safety and quality of public waters, but that information is not available. Vague statements that the alternatives to discharge into Oak Creek or treatment of effluent to meet water quality standards at the end-of-pipe would have “extremely high cost” merely draw a conclusion and fail to constitute a finding on the basis of fact. Fact Sheet at 17.
Nothing in the Appendix A Evaluation demonstrates or concludes that loss of the effluent would do any harm to Oak Creek. The Department itself says that Oak Creek “has been observed to dry up in some years in September and October upstream from the Oremet discharge.” Appendix A at 2. So, what benefit is provided by the discharge? Elsewhere the permit materials confirm that the Oremet discharge provides no benefit other than some overly polluted water in a stream that is anthropogenically flow impaired. For example, the Department has data that demonstrate Oak Creek violates biological criteria: “A number of tests over the years show chronic toxicity for ceiodaphnia dubia at fairly low concentrations of effluent.” Appendix A at 6. “With the exception of the first sampling event [that demonstrates in May, 1989 that biological integrity was higher upstream of Oremet], all others show little change or some improvement of the sites downstream from the Oremet discharge...” Appendix A at 16. “The Oremet discharge was not harming the biological community at any of the times evaluated, and during the very low flow conditions in Oak Creek, the effluent created additional habitat and benefitted the biological community.” Appendix A at 16. The fact that biological monitoring does not demonstrate that Oremet is causing harm to the Calapooia River does not mean that, in fact, it is not given the paucity of the data. Moreover, failure to demonstrate harm via biological monitoring is not itself a basis for allowing violations of water quality standards. The Department appears to propose the use of an OEB on the basis of no harm having been demonstrated despite violations of standards on Oak Creek and a mixing zone into Calapooia. The desires of industry and the Department notwithstanding, the Clean Water Act does not allow for states to dismiss their standards on a whim. Instead, EPA’s implementing regulations are quite clear.
The Department’s use of fish surveys belies the suggested benefit of the Oremet discharge. In the only comparison data for upstream and downstream of the Oremet plume into the Calapooia (1993), the fish survey data demonstrate a significant drop in IBI scores. In all three years of Oak Creek fish survey data, the IBI scores are higher farther away downstream of the plant than immediately downstream. This is not explained by the Department. Of the three years of data on Oak Creek one showed an increase in IBI scores downstream, one showed a decrease, and one was approximately the same. With regard to demonstrating that the Oremet discharge provides an environmental benefit or that its removal would constitute a detriment, those data are simply inconclusive. They are also old (1989-93) and, according to the Department, “somewhat suspect” due to insufficient sample numbers. Despite the insufficiency of the data, and the fact that the OEB rule is intended to require a demonstration of benefit, the Department chose not to require additional data collection.
The comparison with reference streams also provides an opportunity for the Department to express its lukewarm “slight benefit” analysis of Oremet’s discharge. Once again, it notes that there were not sufficient data “to provide a more confident conclusion of benefit.” Appendix A at 20. The primary benefit provided is “some additional habitat during summer low flows.” Id. The intent of the OEB rule was to prevent the Department from issuing OEB alternative mixing zones on the basis of any irrelevant increase in habitat based on the fact that some flows will generate some living plants and animal life where no flows may not. But, this is exactly what the Department is doing and justifying its conclusions by saying that the excessive mixing zone does not appear to cause harm to fish species that are present.
The Department also justifies its analysis by pointing out that streams such as Oak Creek are too severely impaired to support sensitive salmonids. We do not disagree about the degree of impairment. However, the Department cannot lawfully choose to disregard its obligation to protect water quality for those salmonids so long as they are designated beneficial uses that require protection. Neither can it disregard the legal requirement to protect “existing uses,” as part of the antidegradation policy. The Department has not provided any information that salmonids are not existing uses for Oak Creek nor has it demonstrated that they are not designated uses that require protection. Regardless of its rules, the Department cannot authorize a discharge that would lower water quality to the level that would not support existing uses. Therefore, it cannot issue the alternative mixing zone.
It is also bad public policy. The Department’s attempt to justify excessive pollution levels in Oak Creek on the basis of its current impaired state runs counter to the State of Oregon’s supposed commitment to cleaning up rivers and restoring habitat to support the recovery of threatened and endangered salmonids. If the Department writes off streams that require restoration as not suitable for salmonids, it will have doomed the entire state program to failure.
Finally, the Department takes the same position with regard to the Calapooia River. It claims that because the water of the lower Calapooia is too warm for salmonids its use by salmonids is restricted to migration only and that only when water quality is “good.” This kind of thinking is exactly why so many salmon stocks have become extinct and are headed for extinction. Restrictions on use of habitat, because water quality is impaired, depresses populations. Likewise, restrictions on the timing of migration depresses populations and decreases biodiversity. Removing life history types reduces the ability of the species to cope with environmental changes and fluctuations. Therefore, any incremental addition of adverse effects to salmon that will affect life history types is contrary to Oregon’s water quality standards’ requirement to support beneficial uses and the antidegradation policy to protect existing uses. Therefore, in order to protect the beneficial uses, the Department cannot make determinations about whether the Oremet discharge causes problems for fish passage under current highly inadequate conditions, but rather based on the full range of times in which the fish should be migrating and the full use of habitat for life cycle stages other than least sensitive use. Moreover, given the fact that the Department does not know what the actual mixing zone will be in the Calapooia it cannot find that the Oremet discharge “should not provide a barrier to fish passage.” Appendix A at 21.
In fact, the Department’s analysis concludes that Oak Creek downstream is degraded, as having “poor to marginal habitat,” “today not very good quality aquatic life habitat,” and “lacking in stream structures.” Appendix A at 1. This is all with the Oremet discharge in place. Where is it demonstrated that removing this significant source of pollution will harm Oak Creek?
IV. Mixing Zone Rules
There are additional requirements for alternate mixing zones. These include that where the plume of the alternative mixing zone enters a larger stream, that mixing zone must meet standard requirements. There are no assurances provided by Appendix A that these requirements will be met. Although one requirement is that the discharge not “pose an unreasonable hazard to the environment” the Department itself observes that “testing shows infrequent but recurring chronic toxicity at very low concentrations of effluent, indicating potential chronic toxicity outside of the proposed mixing zone during low stream flows, which is not allowed.” Appendix A at 8. Additionally, the Department notes that lead an ammonia sometimes exceed chronic levels.
The Department’s rules prohibit a discharge from being acutely toxic to organisms passing through the mixing zone. Yet it proposes to grant an extended mixing zone despite its own observations that “Chloride and zinc concentrations exceeded the instream acute toxicity standards for these pollutants.” Appendix A at 8. The only assurance that this will not remain true is a note that the Department has required Oremet to “investigate and propose changes.” This, however, is not sufficient particularly since the facility has a history of violating its permit and discharging effluent that exceeds acute criteria as well as chronic criteria.
The Department is prohibited from granting an alternate mixing zone “if the substances discharged may accumulate in the sediments or bioaccumulate in aquatic life or wildlife to levels that adversely affect public health, safety, or welfare; aquatic life; wildlife; or other designated beneficial uses.” The Department’s findings on bioaccumulative contaminants are restricted to observations that the bioconcentration scores are relatively low for zinc, nickel, and lead and that “[i]t appears that bioconcentration is not a significant problem with this discharge.” The fact that “somewhat healthier communities” of macroinvertebrates are present downstream than upstream does not rise to meet the requirements of the state rule. These communities could be “somewhat healthier” for reasons having nothing to do with potential bioconcentration of toxic substances. The fact that the bioconcentration scores of these pollutants are substantially lower than many other highly toxic and persistent chemicals does not negate the language of the rule. The Department’s rule, however, prohibits such mixing zones for contaminants that “may” accumulate to detrimental levels. The Department has made an arbitrary finding that these substances pose no risk of bioaccumulation in the receiving rivers. In fact, the Department has some data that suggest that lead and nickel are present in the Calapooia at levels that pose a hazard to beneficial uses, in water and sediment respectively. It simply has chosen to waive the requirements for the Applicant to obtain further data.
Finally, the Department is prohibited from using the alternative mixing zone rules to avoid its requirements for discharges to water quality limited streams. It does exactly that through this rule. Although the OEB rule requires the applicant to collect data the Department has ensured that Oremet has not collected any data on toxic contaminants in the Calapooia that would confirm the single exceedances found by the U.S. Geological Survey. It has not required any data on toxic contamination of water, sediment, or fish tissue in Oak Creek. The Department has not required temperature monitoring or flow measurements of Oak Creek, both of which would likely result in 303(d)(1) determinations. The Department has not required data on dissolved oxygen despite likely problems with this parameter caused by temperature exceedances. The only analysis is some “[C]omputer modeling of the discharge [that] demonstrated that within Oak Creek, there could potentially be maximum reduction in dissolved oxygen of 0.7 mg/L, under worst case conditions.” Appendix A at 6. Temperature is also a potential problem, according to the Department. However, “very little information is available about the temperature of the discharge from the wetlandor the temptaure in Oak Creek or the Calapooia River.” Id at 5. The Department finds that Total Dissolved Solids are “probably not of concern, although the levels are above the 100mg/L guidance level for the Willamette Basin.” Id at 5. However, it does not require the applicant to gather data that would answer whether it was a problem or not.
V. Augmentation Waters
Where water is used to dilute wastewater flows, as with the Oremet discharge, federal regulations require that certain findings be made. 40 CFR § 125.3(f). It is impossible to deduce from the permit materials made available whether the terms of this provision have been met. This includes:
Technology-based treatment requirements cannot be satisfied through he use of “non-treatment” techniques such as flow augmentation and instream mechanical aerators. However, these techniques may be considered as a method of achieving water quality standards on a case-by-case basis when:
1) The technology-based treatment requirements applicable to the discharge are not sufficient to achieve the standards;
2) The dischargers agrees to waive any opportunity to request a variance under section 301(c), (g), or (h) of the Act; and
3) The discharger demonstrates that such a technique is the preferred environmental and economic method to achieve the standards afer consideration of alternatives such as advanced waste treatment, recycle and reuse, land disposal, changes in operating methods, and other available methods.
Regardless of whether the Department believes that it has drawn any of the conclusions required by this federal regulation, the information has not been provided as part of the public notice and therefore has not been met.
In conclusion, we urge the Department to withdraw this draft proposed permit and inform the applicant that an Overall Environmental Benefit alternative mixing zone will not be granted.
Sincerely,
Nina Bell
Executive Director