September 21, 1995 Jason Zeller, EFSEC Manager Re: Chehalis Combustion Turbine Dear Mr. Zeller: This letter constitutes Northwest Environmental Advocates' Any reference below to "Issue Papers" is a citation to the
document "Final Issue Papers," 1992?94 Water Quality Standards
Review, Oregon Department of Environmental Quality, June 1995, delivered
to the Site Evaluation Council at the 7:00 PM, August 17 public hearing
for the proposed Satsop combustion turbine project. The sections of this
document related to temperature and dissolved oxygen are pertinent to
this application. I. PUBLIC COMMENT PROCESS We are concerned that this public comment process is a waste of public
resources, both those of the agency and the public which respond to it,
because of changing permit conditions and a wholesale failure to meet
regulatory requirements. In addition, since there is no need for power
to justify the construction of this facility, this entire effort is without
merit. A. Changing Permit Conditions Regulations implementing the federal Clean Water Act (CWA) require that
a draft NPDES permit contain the effluent limits and conditions required
by 40 CFR 122.44(d). 40 CFR 124.6(d)(4)(v). This should ensure that the
public will not have to waste its time responding to draft permits which
fail to meet regulatory requirements in a wholesale fashion. Unfortunately,
the proposed permit falls far short of these regulatory requirements. Moreover, it is our understanding that the draft permit for, among other
dischargers in the Upper Chehalis Basin, the City of Chehalis Sewage Treatment
Plant (STP), may be changed in the fall of 1995 based on on-going negotiations
with the Department of Ecology. Personal communication with Paul Pickett
and B. Inadequacy of Required Fact Sheet The public notice requirements promulgated under the Clean Water Act
(CWA) include the opportunity for the public to obtain a copy of the draft
permit and the fact sheet. 40 CFR 124.10(d)(1)(iv). Each draft NPDES permit
must be accompanied by this fact sheet. 40 CFR 124.6(e). A fact sheet
must include the following information: 1) the principle facts and the
significant factual, legal, methodological and policy questions considered
in preparing the draft permit; 2) a brief description of the type of facility
or activity; 3) a brief summary of the basis for the draft permit conditions
including references to applicable statutory or regulatory provisions;
4) reasons why any requested variances or alternatives to required standards
do or do not appear justified; 5) a description of the procedures for
reaching a final decision on the draft permit; and 6) an explanation of
the reasons why limitations to control toxic pollutants under Section
122.45(e) are applicable. 40 CFR 124.8. The fact sheet prepared for this draft permit fails to put forth any
"significant factual, legal, methodological and policy questions
considered in preparing the draft permit." For example, the fact
sheet does not present any factual information on the quality of the receiving
water, including its "water quality limited" status under CWA
section 303(d)(1). The fact sheet does not provide a "brief description
of the type of facility or activity." 40 CFR 214.8(b)(1). It does
not mention the on-going Total Maximum Daily Load (TMDL) process, the
nature of the draft NPDES permits for major dischargers in the Basin,
or the need for waste load allocations under this or any future TMDLs.
It does not mention any statutory or regulatory provisions other than
vague references to "water quality?based" parameters and "water
quality standards," which would mystify the average citizen. The fact sheet does not even mention the state's antidegradation policy
and therefore does not discuss how that policy is being implemented with
regard to this draft NPDES permit. The antidegradation policy is a key
method of implementing the primary goal of the Clean Water Act, namely
to "restore and maintain the chemical, physical, and biological integrity
of the Nation's waters." CWA section 101(a). It is also an important
method of implementing the Act's interim goal of providing for the "protection
and propagation of fish, shellfish, and wildlife and * * * recreation
in and on the water * * *" CWA section 101(a)(2). Congress underscored
the importance of the antidegradation policy in its 1987 amendments to
the Clean Water Act. PUD No. 1 of Jefferson County v. Washington Department
of Ecology, 114 S.Ct. 1900, 1905 (1994). If the application of the antidegradation
policy to this permit is not a "significant policy question"
needing to be addressed in the fact sheet than clearly nothing would qualify. The fact sheet does not provide a description of the procedures for reaching
a final decision on the draft permit as required. The Council's notice
of a public hearing states that the public may petition the U.S. Environmental
Protection Agency (EPA) Administrator to review conditions of the permit
pursuant to 40 CFR 124.19. This citation does not appear to be consistent
with the Council's own rules at WAC 463?38?063. It also does not describe
the role of EPA or the Council in making a final decision on the permit,
as required by the federal rules. Given the Council's particularly confusing
process of issuing an NPDES permit in the context of the site certificate,
there is all the more reason to adhere to the terms of this particular
regulation. The fact sheet provided to the public for this draft permit was itself
labeled "draft." The sole purpose of a fact sheet is to accompany
a draft permit, not a proposed permit or a final permit. Therefore, the
use of the label "draft" by the Council suggests the substance
of the fact sheet ?? and the terms of the draft permit in its draft state
?? were subject to change even at the time of its publication. This should
not be the case but rather the fact sheet should contain information and
analysis upon which the public may rely. C. Information Lacking The Council's regulations spell out the required contents of applications:
"The applicant shall provide detailed descriptions of the affected
natural water environment, project impacts and mitigation measures and
shall demonstrate that facility construction and/or operational discharges
will be compatible with and meet water quality standards. * * * The application
shall set forth all background water quality data pertinent to the site,
and hydrographic study data and analysis of the receiving waters within
one-half mile of any proposed discharge location with regard to: Bottom
configuration; minimum, average and maximum water depths and velocities;
water temperature and salinity profiles; anticipated effluent distribution
and dilution, and plume characteristics under all discharge conditions;
and other relevant characteristics which could influence the impact of
any wastes discharged thereto." WAC 463-42-322. Much of this information
is not in the application, such as plume characteristics and information
presented in the TMDL Study. Upper Chehalis River Dry Season Total Maximum
Daily Load Study, No. 94-126, July 1994 (hereinafter "TMDL Study").
The application is riddled with errors in interpreting Washington's water
quality standards and criteria (e.g., WAC 173-201A), as discussed below,
rendering the information and analysis provided in the application wholly
inadequate. II. LEGAL REQUIREMENTS FOR THE ISSUANCE OF PERMITS A. Permits Prohibited EPA regulations prohibit the issuance of any permit "when the conditions
of the permit do not provide for compliance with the applicable requirements
of CWA, or regulations promulgated under CWA." 40 CFR 122.4(a). This
includes "[w]hen the imposition of conditions cannot ensure compliance
with the applicable water quality requirements of all affected states."
40 CFR 122.4(d). Likewise, the regulations specifically prohibit the issuance of a permit
for a "new source" or "new discharger" if the discharge
from its operation will "cause or contribute to the violation of
water quality standards." An applicant "proposing to discharge
into a water segment which does not meet applicable water quality standards
or is not expected to meet those standards even after the application
of the effluent limitations required by sections 301(b)(1)(A) and 301(b)(1)(B)
of CWA, and for which the State or interstate agency has performed a pollutants
load allocation for the pollutant to be discharged, must demonstrate,
before the close of the public comment period, that: (1) There are sufficient
remaining pollutant load allocations to allow for the discharge; and (2)
The existing dischargers into that segment are subject to compliance schedules
designed to bring that segment into compliance with applicable water quality
standards." 40 CFR 122.4(i). B. Required Effluent Limitations 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 The Council's rules are similar: "In any case where an issued NPDES
permit applies the effluent standards and limitations established in paragraph
1 of this section, the council shall make a finding that any discharge
authorized by the permit will not violate applicable water quality standards
and will have prepared some explicit verification of that fact. In any
case where an issued NPDES permit applies any more stringent effluent
limitation, based upon applicable water quality standards, a waste load
allocation shall be prepared to ensure that the discharge authorized by
the permit is consistent with applicable water quality standards."
WAC 463-38-053(2). The water quality standards referred to in these 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 decision in Jefferson County 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." Jefferson County, supra, at 1912. 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. C. Antidegradation EPA regulations implementing CWA section 303 require that the State of
Washington's "antidegradation policy and implementation methods shall,
at a minimum, be consistent with the following: (1) Existing instream
water uses and the level of water quality necessary to protect the existing
uses shall be maintained and protected." 40 CFR 131.12(a)(1). Only
where the quality of waters exceed levels necessary to support the most
sensitive biological beneficial uses is the State allowed to degrade water
quality in order to accommodate important socioeconomic development. 40
CFR 131.12(a)(2). Even where these high quality waters exist, a situation
present in this case only for some pollutants and parameters, the regulations
require that the State assure water quality adequate to protect existing
uses fully. 40 CFR 131.12(a)(2). Where the quality of the water is not
higher than the standards, the regulations prohibit additional pollutant
loads. Washington's antidegradation regulation is somewhat less clear, III. THE CHEHALIS AND THE DISCHARGE A. The Chehalis River The Department of Ecology (DOE) has made, and U.S. EPA has approved,
a finding that segment No. WA-23-1020, of the Chehalis River from river
mile 65.8 (Scammon Creek) to river mile 75.2 (Newaukum River), into which
the Applicant proposes to discharge, does not meet the state water quality
standards for temperature and dissolved oxygen (DO) -- i.e., is "water
quality limited" -- based on exceedences of the numeric criterion.
Department of Ecology, 1994 303(d)(1) list. In addition, the Applicant
notes that there are significant exceedences of both chronic and acute
criteria for other pollutants in the vicinity of the City of Chehalis
municipal water supply intake (on the east bank of the Chehalis River
downstream of the confluence with the Newaukum River). Application at
3.3-20. Specifically, the chronic criteria are violated for cadmium, copper,
lead, mercury and zinc. Id. The acute criteria are violated for cadmium,
copper, silver and zinc. Id. Some of the parameters are startling high.
For example, the recorded concentration of copper is 200 ug/l, compared
to an acute criterion of 5.6 ug/l. Application at Table 3.3-2a. These
studies were performed by the City, apparently recently. Personal communication
with Kahle Jennings. Since the Applicant has provided no information upon
which the Council can conclude that the segment is not water quality limited
for these pollutants, it must treat them as such in determining whether
the permit can be issued, and establishing the effluent limits if, in
fact, issuance of the permit is not prohibited. The application references
supporting data from the U.S. Geological Survey for concentrations of
cadmium, lead, mercury and silver downstream at the Porter monitoring
station. Application at 3.3-20. The application provides little data on temperatures for this segment
of the Chehalis. It merely states that the "instream temperature
criteria would not be exceeded within the allowed mixing zone." Application
at 3.3-28. If this is true, than no mixing zone should be allowed for
thermal pollution coming from this source. Since, however, the application
goes on to state that the discharge temperature will range from 29oC to
21oC, and make assumptions about the existing temperature becoming the
criterion (which a discharger can then warm up to 0.3oC), clearly the
entire analysis is flawed. See e.g., Application at 3.3-28 and Table 3.3-3.
The applicant should provide data on actual temperatures in the Chehalis
River and present an analysis showing that the discharge will not cause
or contribute to water quality standards violations. This information exists. For example, the TMDL Study notes that 50 percent
or more of temperature measurements in the Upper Chehalis Basin during
the dry season exceeded the criterion. Worse, in the "Centralia reach,"
which encompasses the segment into which the Chehalis plant proposes to
discharge, the TMDL Study concluded that "almost two-thirds of the
measurements exceed[ed] the 18oC criterion." TMDL Study at 21. B. The Proposed Discharge The application presents very little information on the temperature of
the discharge except to say that it will vary between 29oC and 21oC. The
application does not explain how the facility will be able to keep its
discharge within temperature limits. For example, there is no information
provided on the temperature of the recycled wastewater which will be used
by the plant. The application makes no assessment of the impact of the
discharge to the most sensitive beneficial uses of the Upper Chehalis.
The closest the Applicant gets is a statement that the purchase or lease
of others' water rights could be used "if the loss of water quantity
is judged to have a significant impact on the aquaculture of the Chehalis
River." Application at 3.3-10. The protection of aquaculture is,
frankly, a non issue as compared to protection of aquatic species indigenous
to the river. IV. THE PROPOSED DISCHARGE VIOLATES REGULATIONS A. The Numeric Criterion & Waste Load Allocations The Council has not yet made the findings and "explicit verification,"
required by its own rules, that the proposed discharge will not violate
water quality standards. In fact, the cover memorandum for the NPDES materials
states that the preliminary determination made by the Council was based
on technology-based requirements. Memorandum from Allen Fiksdal, EFSEC
Project Manager to Interested Persons re: Chehalis Generation Facility
NPDES and PSD Permit - Tentative Determination, August 17, 1995 at 2.
The fact sheet states that the water quality-based discharge limits were
calculated on the basis of the mixing zone using a dilution factor of
2.25. Fact sheet at 4. Neither the Applicant nor the Staff has shown that
the proposed discharge will not "cause, have the reasonable potential
to cause, or contribute to an excursion above any State water quality
standard," as required by EPA regulations governing the issuance
of NPDES permits. Such an evaluation requires an analysis of pollutant
loadings. Instead, the Applicant has merely performed a dilution analysis,
based on a highly flawed interpretation of the Clean Water Act. The only source of information on evaluating effluent limits and loadings
is the application. This is a highly problematic source of information
because the Applicant fundamentally misunderstands the water quality-based
permitting under the Clean Water Act. This is best reflected in its startling
statement that "[s]ince natural conditions in the river exceed the
assigned criteria, river conditions constitute the water quality criteria
[and therefore] the effluent is within compliance concentrations."
Application at 3.3-20. A similar statement is made with regard to temperature.
Application at 3.3-28. While it is true that where natural conditions
are of a lower quality than assigned criteria, the natural conditions
constitute the criteria, the Applicant errs in assuming that existing
or background conditions in the Upper Chehalis are "natural."
Natural conditions are clearly defined as "surface water quality
that was present before any human-caused pollution." WAC 173-201A-020.
Neither the Department of Ecology nor the Siting Council has made a finding
that either the DO or temperature levels in the Chehalis are natural.
See e.g., the TMDL Study. And the Applicant provides absolutely no basis
for either agency to make a determination that the levels of cadmium,
copper, lead, mercury, zinc and silver are "natural" other than
its own bald statement. There are certainly probable sources of metals
upstream of this sampling site. See TMDL at Table 1.1, Permitted Dischargers.
The entire analysis in the application is therefore worthless. This peculiar aspect of the application results in extremely abbreviated
discussions of pollution controls such as the following: "Four potential
mitigation measures have been developed to protect the Chehalis River
from significant flow quantity impacts during low flow conditions: * *
* Metals removal system to mitigate quality issues." Application
at 3.3-28. Meeting water quality standards is not mitigation; it is the
law. Moreover, the statement that metals removal can be "brought
on-line when needed based on waste stream monitoring and river flow conditions"
is not what is contemplated by the implementing regulations of the Clean
Water Act as presented above. Application at 3.3-28. Again, the law requires
these determinations to be made in advance of issuance of a permit if
for no other reason than the permit, once issued, acts as a shield behind
which a permittee can hide from those desiring to protect the public waterways
and their beneficial uses. 1. Temperature The proposed permit condition of a discharge temperature of 18oC at the
edge of the mixing zone is the same as the numeric criterion for the receiving
stream. There are several reasons why, on its face, this thermal load
will cause and/or contribute to violations of the numeric criterion. First,
an allocation under the Total Maximum Daily Load (TMDL) will require thermal
loads to be less than the numeric criterion because the Applicant is only
one of many point and non-point sources contributing thermal loads in
the watershed. Under a TMDL, no additional thermal load should be allowed
unless and until there are other sources of thermal loading which are
in the process of being reduced. Second, the statute requires TMDLs of
all kinds, including thermal TMDLs to include a "margin of safety,"
and therefore the load allocations would similarly include a margin of
safety. CWA 303(d)(1)(D). Assuming no other sources of thermal loading,
allowing the discharge temperature to equal the numeric criterion would
not include a margin of safety. Third, allowing the discharge to be 18oC
does not take into account the fact that the numeric criterion is too
warm to protect populations of cold-water fish which are both existing
and designated beneficial uses in the Chehalis River. Temperature criteria excursions are caused by a variety of point and
non-point sources of thermal loads in addition to the both natural and
anthropogenic sources including, for example: solar radiation from changed
river morphology throughout the watershed, reduced and slowed flows, air
temperatures, and reduced shading. In order to ensure that the temperature
criterion is met, all sources of thermal loading must be restricted. The
regulations require that, in establishing the effluent limits for this
project, the contributions and controls on these other sources be evaluated.
40 CFR 122.44(d)(1)(ii). There is no other way in which to assure that
the discharge from this project will not cause or contribute to violations
of water quality standards. The mere fact that a discharge is at or lower than the temperature criterion
is not sufficient to constitute an appropriate waste load allocation.
Absent more analysis than has been provided by either the Applicant or
the Council's consultants, there is no assurance that the proposed discharge
temperature will not in fact cause, at times, and contribute, at others,
to the violation of the state's water quality standard for temperature.
2. Effect of Temperature on Other Parameters Warmer temperatures have a negative effect on DO levels. DO levels in
this segment of the Chehalis River are so marginal that the TMDL study
proposes to grant no wasteload allocations (WLA) to point sources in this
reach and no load allocations (LA) to nonpoint sources. TMDL Study at
83. The applicant should be required to assess the contribution of its
thermal load to existing DO problems and to the difficulties involved
in implementing the TMDL for this reach. For example, Oregon's proposed
new temperature standard prohibits any measurable increase in water temperature
where DO concentrations are within 0.5 mg/l of the DO criterion. Dissolved
Oxygen Issue Paper, supra, at 4-8. More specifically, the Siting Council
should evaluate the impact of increased thermal loads in the highly sensitive
area of the plant site on thermal gradients (thermoclines) that increase
problems with oxygen mixing (stratification). For a full discussion of
this phenomenon with regard to the area between rivermiles 67 and 71 of
the Chehalis, see the TMDL Study at 40. According to Ecology, high temperatures also reduce the capacity of the
Chehalis River to assimilate ammonia and CBOD without degrading DO. TMDL
Study at 81. The agency concludes that "[s]uccessful implementation
of a phased TMDL for temperature may allow for increased loading of ammonia
and CBOD" leading to the obvious conclusion that thermal controls
on point sources are not only desirable but required. Id. 3. Other Parameters There is an apparent conflict between proposed limits for free available
chlorine (0.50 mg/l daily maximum; 0.20 mg/l daily average) and "no
detectible amount" of total residual halogens; chlorine is one of
the halogens, along with bromine, fluorine, and iodine. In addition, if
there is to be a separate limit for chlorine discharged, it should be
for the total residual chlorine and not simply the free available fraction.
There is no great difference between the toxicity of free available chlorine
and the chloramines that also result from the chlorination process. This
is recognized by the Department of Ecology toxicity limits for total residual
chlorine. Effluent limits for the parameters copper, cadmium, zinc, lead -- which
the Applicant concedes are present in the receiving stream far in excess
of water quality criteria -- must be demonstrated not to cause or contribute
to water quality standards violations. The Applicant's analysis that the
existing levels become the criteria and that effluent concentrations not
greater than these new "criteria" are acceptable is a gross
misinterpretation of the Clean Water Act. Therefore, the analysis provided
by the Applicant on the acceptability of its proposed effluent concentrations
is not an appropriate basis upon which the Council can make the necessary
determinations. Application at Table 3.3-2a. In fact, even if the levels
were natural and therefore became the criteria, no additional loadings
would be allowed. The fact that the concentration of a discharge is the
same as the receiving stream or the criterion for a particular pollutant
is irrelevant because it ignores the central issue of loadings, required
by the Act. Therefore, the fact sheet's explanation that the "water
quality-based" discharge limits have been calculated on the basis
of the City of Chehalis' mixing zone are indication enough that the water
quality-based analysis required for this draft permit has not yet been
done and the permit cannot be issued. Fact Sheet at 4. B. Protection of Beneficial Uses Washington's numeric water quality standard for temperature applicable
to Class A streams, such as the Chehalis, is inadequate to protect the
designated beneficial uses present. The Council cannot simply apply the
18oC criterion in the temperature standard, but is required by law to
consider the specific needs of the existing beneficial uses of salmonid
stocks in the Chehalis in order to determine an appropriate thermal load
allocation for this source. The Chehalis River downstream of the proposed discharge is used by a
large number of cold?water fish including spring and summer run chinook,
summer steelhead, fall chinook, coho, chum, winter steelhead and sea?run
cutthroat. Personal communication with Susan Balikov, The Wilderness Society,
Seattle office. The temperatures needed to protect some of the life cycle
stages of these cold-water fish are significantly colder than the 18oC
(65oF) numeric criterion adopted by the Department of Ecology. Salmonid respond to warmer temperature differently depending upon, among
other variables, the stage of the life cycle in which they are exposed.
Appropriate temperatures must be established based on the life stage with
the most restrictive temperature requirements occurring at any given time
of year. Temperature Issue Paper, supra, at 2-7. The chinook, which have
a spring, summer and fall run on the Chehalis, illustrate the shortcomings
of the numeric criterion due to the life cycle stages that occur during
the low flow, high temperature summer months. Fall chinook migrate inward
to spawn in the Chehalis River from August through September. Inland Fishes
of Washington, Wydoski and Whitney, University of Washington Press, 1979,
at 59. Spring and summer chinook do not spawn in the Chehalis but use
it as a migration corridor from late May to early June, spawning in July
through September. Id. Coho migrate upstream beginning in August with
juveniles spending one year in the river prior to outmigration. Temperature
Issue Paper, supra, at 2-10. By comparing these life cycle stages to the temperature needs of the
species one can evaluate the impacts of the proposed discharge in addition
to the current quality of the receiving water. For example, the holding
of pre-spawning ripe adult chinook females due to migration barriers created
by high temperatures increases their susceptibility to disease, the same
diseases which become highly infectious and virulent above 15.5oC. Temperature
Issue Paper, supra, at 2-7. The exposure of ripe adult females to this
same temperature causes "pronounced" adult mortality. Id. Similarly,
coho, which use the Chehalis for spawning and rearing, require a migration
temperature and juvenile rearing temperature of 15.6oC and 14.6oC respectively.
Id. at 2-11. The State of Oregon's proposed new temperature criterion
for salmonid spawning, egg incubation and fry emergence is 12.8oC (55oF).
Id. at 4-7. As discussed above, the Council is required under 40 CFR 122.44
and Jefferson County to fully evaluate these impacts prior to issuing
a draft permit and must include effluent limitations to protect these
uses in permit conditions. C. Antidegradation Policy According to the Washington Department of Ecology, the primary NPDES
permitting authority in the state, the antidegradation policy of its own
water quality standards is regularly ignored. In a memorandum accompanying
a questionnaire sent out to participants in the state's 1995 Triennial
Review of Water Quality Standards, DOE staff concede that: "While
the state has had antidegradation requirements for a very long time, these
requirements have not been effectively implemented in actions of the department."
Antidegradation Implementation Plan, Questionnaire Number One, Summary
Discussion, Surface and Ground Water Quality Management Unit, DOE, March
14, 1995 at ii. Notwithstanding this admission, EPA and state regulations
remain binding upon this draft NPDES permit. NWEA is unable to comment upon the application of the antidegradation
policy to this draft permit because no evaluation has been provided. We
have unable to find a single reference to the policy in the application,
the fact sheet, the cover memorandum and the draft permit. At a bare minimum,
correct implementation of the required antidegradation policy necessitates,
at the outset, its application. The antidegradation policy precludes further discharges of loads of pollutants
for which the waterbody is water quality limited in the absence of an
implemented plan to bring the waterbody into conformance with the standard.
This is because the uses are by definition not fully supported if the
numeric criterion has been violated and the water has been deemed "water
quality limited." Where the receiving stream is water quality limited,
no additional pollutant loads can be allowed unless there are other loads
of the same pollutants which are being reduced sufficient to leave assimilative
capacity available for use. D. Use of Water for Dilution of Mass Loads Dilution of effluent loads prior to discharge is implicitly prohibited
by the requirement that permits contain mass load limitations for all
pollutants except pollutants which cannot appropriately be expressed by
mass. 40 CFR 122.45(f)(1). The Council's rules acknowledge this requirement:
"In the application of effluent standards and limitations, water
quality standards and other legally applicable requirements pursuant to
paragraphs (1) and (2) hereof, each issued NPDES permit shall specify
average and maximum daily quantitative or other appropriate limitations
of the level of pollutants in the authorized discharge. The average and
maximum daily quantities must be made by weight except where the parameters
are such that other measures are appropriate." WAC 463?38?053(3).
"Other measures" does not mean that dilution of loads prior
to discharge is an acceptable practice for those pollutants which are
not measured by weight. It is not clear from the application, the fact
sheet or the permit how the discharge of the proposed Chehalis CT project
and the City of Chehalis STP are being evaluated other than the fact that
the intent is to share the outfall. Dilution of one or the other's discharge
is prohibited. Moreover, it is not clear how the monitoring requirements
of the proposed permit will account for the individuality of the two facilities. E. Mixing Zone Analysis Inadequate The proposed permit conditions include an effluent dilution zone. Draft
NPDES Special Condition S1(B). Water quality standards, including toxicity
limits for constituents in the Chehalis CT Project discharge, must be
met at the boundaries of the specified dilution zone. Calculations to
demonstrate that proposed discharge limits will satisfy dilution zone
requirements are not presented. Moreover, the Applicant states that the
discharge will exceed acute toxicity in the mixing zone for cadmium, copper,
and zinc. Application at 3.3-25. Yet no analysis is presented as required
by WAC 173-201A-100(8) (Mixing Zones) particularly with respect to zones
of initial dilution where acute criteria may be exceeded. In this context,
the Applicant also mysteriously concludes that temperature is "non-regulated."
See e.g., Table 3.3-3a. Conclusion This draft permit does not meet federal, Washington Department of Ecology
or the Council's own regulations for permit conditions. Therefore, the
Council is prohibited from issuing the draft permit at this time. It is
not sufficient, in the words of the draft fact sheet, for the Council
to claim that it and the Applicant "will take necessary steps to
ensure discharges are consistent with water quality standards." Fact
sheet at 5. It is necessary that the Council take those steps now, at
the time of permit issuance. The process for obtaining public comment
on this draft permit has also not complied with state and federal requirements.
Moreover, it appears that permit conditions may be dependent upon the
City of Chehalis permit, which is still being evaluated and changed, making
this entire public comment process a waste of public resources. If the
Council chooses to reissue the draft NPDES permit for public notice and
hearing -- a necessary prerequisite to attempting to issue a final permit
to this project -- it must first assure itself that members of the public
and non-profit entities will not be, once again, be wasting their time.
We look forward to your response to our comments. Sincerely, Nina Bell for: Friends of the Earth, Northwest Office
Washington Energy Facility Site Evaluation Council
P.O. Box 43172
Olympia, WA 98504?3172
NPDES Draft Permit; Application No. 94-3.
comments on the draft NPDES permit for the above?referenced
facility. These comments are also submitted on behalf of Friends of the
Earth (Northwest Office). We request that these comments be incorporated
into the public hearing record of the evidentiary proceeding for the site
certification application.
Kahle Jennings, DOE. If this permit changes, the terms of the Chehalis
CT permit may also be required to change, necessitating an additional
public comment period.
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).
but consistent: "Existing beneficial uses shall be maintained and
protected and no further degradation which would interfere with
or become injurious to existing beneficial uses shall be
allowed." WAC 173?201A?070(1). This policy is a part of
Washington's water quality standards, which, in turn, are
referenced by Council rules. See e.g., WAC 463?38?061.
No evaluation has been supplied by the Applicant or the Council that the
proposed discharge will comply with Washington's water quality standards
including: the numeric criteria, protection of the most sensitive beneficial
uses, and the antidegradation policy.
Executive Director
Northwest Environmental Advocates