REVIEW OF WASHINGTON'S NATIONAL POLLUTANT DISCHARGE ELIMINATION
SYSTEM (NPDES) PROGRAM:
ENVIRONMENTAL PROTECTION AGENCY'S
RESPONSE TO THE MAY 6, 1991, SIERRA CLUB LEGAL DEFENSE FUND, INC.
PETITION FOR CORRECTIVE ACTION OR WITHDRAWAL OF AUTHORITY OF THE
NPDES PROGRAM FOR THE STATE OF WASHINGTON
January 31, 1992
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United States Region 10 Alaska
Environmental Protection 1200 Sixth Avenue Idaho
Agency Seattle WA 981 01 Oregon
Washington
JAN 3 1 1992
Reply To
Attn Of: WD-085
Rebecca Todd
Sierra Club Legal Defense Fund, Inc.
216 First Avenue South, #330
Seattle, Washington 98104
Dear Ms. Todd:
On January 10, 1992, I transmitted to you the Summary of
Findings of the Environmental Protection Agency's (EPA's)
informal investigation to the May 6, 1991, petition for
corrective action or withdrawal of authority of the National
Pollutant Discharge Elimination System (NPDES) program from the
state of Washington. As I indicated in my earlier letter, the
final report would be released by the end of the month. A copy
of the final report is enclosed. The final report contains
information regarding the conduct of our review, our findings and
corrective actions we envision the state taking.
As I indicated in my earlier letter, we have found that the
Washington State Department of Ecology (Ecology) is committed to
implementing a quality NPDES program. While we found some
problems with the program, EPA is confident the problems can be
corrected. We believe that the most effective means for
resolving these problems would be for Ecology and EPA to enter
into a Corrective Action Plan (CAP) . As stated earlier, we have
decided to defer our decision on whether to commence formal
withdrawal proceedings to allow Ecology time to respond to our
report by submitting the CAP by April 30, 1992.
Please contact me it there are any questions.
Sincerely,
/ _Dana A. Rasmussen
<^j Regional Administrator
Enclosure
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TABLE OF CONTENTS
SUMMARY OF FINDINGS
ERA'S FINDINGS BASED ON PETITIONERS' ALLEGATIONS
A. Legal Review (NPDES and Pretreatment)
B. Settlement Agreements
C. Permit Program Review
D. Backlog of NPDES Permits and Unpermitted Discharges (Includes
Management/Organizational issues)
E. Enforcement Review
F. Inspection Program Review
G. Pretreatment Program Review
H. Information Management and Public Participation
APPENDICES:
1-1 Petition for Corrective Action or Withdrawal of Authority of the NPDES
Program for the State of Washington
I-2 Summation of Public Workshops
I-3 Transmittal Letters for Summary of Findings
ll-C-1 EPA's Final Decision Regarding Washington's Listings Under 304(1),
March 8, 1991
M-C-2 Preliminary Findings - Washington State NPDES Audit, Permit Quality
Review
ll-C-3 References for Permit Program Review
ll-C-4 Other Actions Which May Effect Program Scheduling
ll-D-1 State-by-State Summary of Backlogged Permits
ll-D-2 State Performance Compared with Other Authorized States
ll-D-3 Ecology Organizational Chart
ll-G-1 List of Approved Pretreatment Programs
ll-G-2 Example Pretreatment Language
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I. SUMMARY OF FINDINGS
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I. SUMMARY OF FINDINGS
Section 402(c)(3) of the Clean Water Act (CWA) authorizes the Environmental
Protection Agency (EPA) to withdraw approval of a state National Pollutant Discharge
Elimination System (NPDES) program that is not being implemented in accordance
with federal requirements. Criteria and procedures for withdrawal of state NPDES
programs are contained in 40 CFR ss 123.63-123.64. The regulations allow two types
of withdrawal procedures, voluntary and involuntary. States can voluntarily return
programs to EPA, or EPA can initiate withdrawal procedures independently or in
response to an interested party's petition. In the latter instance, a petitioner must
allege that the state fails to comply with EPA's requisite criteria.
The agency may conduct an informal investigation into the petition's allegations
to determine whether cause exists to commence withdrawal proceedings. Ultimately,
the Administrator must respond in writing to the petition. The Administrator may deny
the petition if he finds that cause does not exist to commence formal adjudicatory-type
withdrawal proceedings. Conversely, he may grant the petition and enter into formal
withdrawal proceedings.
On May 6, 1991, the Sierra Club Legal Defense Fund, Inc. (SCLDF), on behalf
of 11 environmental organizations, submitted a "Petition for Corrective Action or
Withdrawal of Authority of the NPDES program for the state of Washington"
(Appendix 1-1). The petition alleges that the Department of Ecology's (Ecology's)
NPDES program suffers from a number of inadequacies including: lack of toxics
regulations; high numbers of expired permits and unpermitted discharges; inadequate
legal authority to administer the program; permits written with less stringent limitations
than previous permits; and inadequate funding, enforcement, compliance, inspection,
and data control. The petition asks EPA to issue an Order to undertake corrective
action or to commence withdrawal proceedings.
On July 3, 1991, the Assistant Administrator for Water, LaJuana S. Wilcher,
announced her decision to commence the informal investigation. EPA held public
workshops on August 13 and 14, 1991, to gather more information about issues raised
by the petition (see Appendix I-2 for a summary of the workshops). On
August 20-22, 1991, EPA conducted a three-day on-site audit of Ecology's NPDES
program. EPA interviewed Ecology staff and management; reviewed program files;
and evaluated relevant documents regarding permit development and issuance,
compliance activities, enforcement, information systems, organization and
management, and pretreatment.
The project team, consisting of Regional and Headquarters staff, have prepared
the following recommendations based on the findings contained in the report.
LaJuana Wilcher and Dana Rasmussen, Regional Administrator, Region 10 have
reviewed the findings and concur with the recommendations contained in this report.
I. 1
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EPA concludes that Ecology is committed to implementing a good NPDES
program. While significant problems have been noted in some area, EPA believes that
these problems can be corrected by Ecology. Therefore, EPA is requiring Ecology to
address the problems in a Corrective Action Plan (CAP)
The CAP would incorporate the concerns listed below, the details of which are
contained in this report, as well as including schedules and milestones for carrying out
the plan. EPA has decided to defer its decision on whether to commence formal
withdrawal proceedings to allow Ecology time to respond to its report by submitting
the CAP.
While we view development of the CAP as primarily involving the state and EPA,
we ask that Ecology also include representatives of groups interested in the NPDES
program. One way of doing this would be to use the newly constituted Permits
Advisory Committee, assuming that this forum provide adequate opportunity for the
public to participate or other comparable processes.
EPA may also use the annual state/EPA Agreement (SEA) process to
implement and track Ecology's process in carrying out the CAP, and include
provisions that ensure effective EPA oversight. EPA may also condition certain grant
approvals on Ecology's performance, and provide other incentives for Ecology to carry
out the CAP.
Ecology has already acknowledged many of the problems with its program and
has begun to address them in its September 19, 1991, "Wastewater Discharge Permit
Action Plan" (WDPAP), Report to the House Environmental Affairs Committee. The
action plan demonstrates Ecology's willingness to improve its program. We also
considered the appropriate role of the 1991 Puget Sound Water Quality Management
Plan (PSWQMP). Earlier this year, the PSWQMP became the first EPA-approved
estuary plan under Section 320 of the CWA. The PSWQMP affirmed that problems
exist in Washington's NPDES program, many of which are mirrored in the petition.
Consistent with the spirit of the CWA, we recommend that the CAP reaffirm the
importance of the PSWQMP and address weaknesses both raised by petitioners and
contained in the Plan.
During its review, EPA identified concerns with the program as well as strengths.
The strengths are listed for informational purposes. The concerns should be
addressed in the CAP.
I. 2
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A. Legal Review
Corrective Actions
Ecology should review its legal authorities and articulate the means used
to ensure its legal authority remains commensurate with federal legal
authority for the NPDES and pretreatment programs.
Ecology should pursue authority to regulate federal facilities in
Washington.
B. Settlement Agreements
Corrective Actions
Ecology should develop and implement a schedule for issuing the
remaining dioxin permits and Orders.
C. Permit Program Review
Strengths
Some major industrial permits require the permittees to conduct pollutant
discharge reduction and elimination studies (pollution prevention).
All municipal permits contain a provision to maintain adequate capacity
and begin planning for upgrade when 85% capacity is reached.
Ecology applies new source performance standards to new incremental
production beyond EPA technology-based requirements.
Washington is the first state to establish a sediment management
standards program.
Some industrial permits require annual testing for pollutants beyond EPA
requirements.
Corrective Actions
Ecology must ensure that permit provisions are consistent with federal
regulations regarding development of effluent limitations where there is
reasonable potential for toxic effects.
Ecology should develop both an integrated standards-to-permits and
watershed management approach to permit issuance.
1.3
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Ecology should provide sufficient documentation in the permit record to
assure that a permitted discharge will assure attainment and maintenance
of water quality standards (WQS).
Ecology should assure the implementation of whole effluent toxicity
controls including the use of toxicity identification and toxicity reduction
evaluations.
Ecology should standardize plans and sampling requirements for various
types of tests, rather than requiring the permittee to prepare and submit
individual plans to Ecology for approval.
Ecology should provide increased central oversight of regional office
priority setting, permits, enforcement, and information systems, etc.
D. Permit Backlog and Unpermitted Discharges
Strengths
The backlog of expired major permits is about 10%, which is within the
acceptable national range.
Ecology established its own regulatory strategy for combined sewer
overflows (CSOs), before the issuance of the national CSO strategy.
Ecology is developing general or model permits for dairies, storm water,
and boatyards to regulate several thousand sources currently operating
without permits.
Ecology has established a risk based approach to dealing with the
issuance of minor permits.
Corrective Actions
Ecology should commit to and carry out a strategy to ensure unpermitted
and minor discharges are permitted in a timely fashion.
Ecology should issue general permits, where appropriate, to increase
program efficiency, and ensure that individual dischargers covered under
the general permit are not required to provide individual public notices.
I. 4
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E. Enforcement
Strengths
Ecology has a comprehensive enforcement policy.
Corrective Actions
Ecology should establish a central enforcement program office to
improve enforcement program coordination, for example, in operations,
management, and priority setting.
Ecology should ensure an effective data management system for tracking
and processing.
Ecology should incorporate the economic benefit of not complying with
the law into penalty assessment.
Ecology should not provide unwarranted penalty reductions.
Ecology should consider pursuing regulatory changes that would
discourage lengthy appeals of Ecology's penalty assessment.
F. Inspections
Strengths
Ecology exceeded its targeted percentage of unannounced inspections.
Corrective Actions
Ecology should provide improved tracking of the status of inspections
and reporting of inspection information.
Ecology should increase central oversight and coordination of the
inspection program.
G. Pretreatment
Strengths
In its implementation of the pretreatment program, Ecology provides
additional regulation of significant industrial users and publicly owned
treatment works (POTWs).
1.5
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Corrective Actions
Ecology should provide central oversight and coordination of the
pretreatment program, including improved data entry and tracking
systems.
Ecology should improve compliance tracking, monitoring, inspections,
and enforcement in non-delegated POTWs and improve categorical
permits to categorical users.
Ecology should increase attention to non-delegated programs and
require additional specified local programs to develop programs within
one year, plus ensure full implementation of local programs within
six months.
G. Information Management and Public Participation
Corrective Actions
Ecology should develop an adequate information management system,
especially for response to public requests for information.
Ecology should continue to improve its public participation activities.
1.6
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II. ERA'S FINDINGS BASED ON PETITIONERS' ALLEGATIONS
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A. LEGAL REVIEW
ALLEGATION: AS REQUIRED BY THE MEMORANDUM OF AGREEMENT (MOA),
ECOLOGY HAS NOT DEVELOPED AND MAINTAINED LEGAL AUTHORITY AND
RESOURCES TO CARRY OUT ALL ASPECTS OF THE NPDES PROGRAM.
Method of Investigation
The sources of information for this portion of the review are: (1) the
Washington statute, regulations, and MOA; (2) discussions with the Water Quality
Programs (WQP) staff: Gary Bailey (Regulatory Unit head), Jim Krull (Point Source
Section chief); (3) discussions with Assistant Attorney General's office staff: Chuck
Lean; and (4) petitioner and public comment materials.
To evaluate the above allegation, EPA's review focused on two major areas:
adequacy of legal authority and adequacy of resources available to implement
Ecology's NPDES program. EPA conducted a preliminary review of Washington's
NPDES legal authority, which included state statutes and regulations, as well as the
MOA with EPA. EPA also reviewed Ecology's capability and schedule for assuming
responsibility for federal facilities permitting. In addition, EPA investigated whether the
alleged underfunding of Ecology is an action that limits state authorities, in violation of
federal requirements. In EPA's review of this allegation, the audit team reviewed: (1)
funding of Ecology's NPDES program; (2) fee regulations; and (3) Ecology's current
workload modeling, planning, and allocation.
Findings
Background
EPA regulations set forth the process for authorizing and revising a state
NPDES program. States must submit a program description, Attorney General's
Statement, MOA, and other documentation such as statutes and regulations. If a
proposed revision is substantial, EPA provides for public notification and comment and
possibly a hearing. Program revisions become effective upon EPA approval.
EPA initially approved Ecology's NPDES authority on November 9, 1973. [In
addition, on August 15, 1979, the Energy Facility Site Evaluation Council (EFSEC)
received authorization to perform NPDES activities with regard to certain energy
facilities. The petition to withdraw Washington's NPDES program is specific with
regard to the operation of the program by Ecology. In this evaluation, EPA has not
conducted any review of the operation of the state's NPDES program by EFSEC.]
Washington's NPDES program was revised to include pretreatment authority on
September 30, 1986, and general permit authority on September 26, 1989.
LA. 1
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The most recent revised NPDES EPA/Ecology MOA, effective January 9, 1990,
states that Ecology will administer the NPDES program in accordance with Section 402
of the CWA, applicable state authority, requirements of 40 CFR Parts 122-125 and any
other applicable federal regulations, and the annual state 106 program plan. One of
Ecology's responsibilities under the MOA is to develop and maintain, to the maximum
extent possible, legal authority (including state regulations) and resources required to
carry out all aspects of the NPDES program.
Merit of Allegation
1. Adequacy of Legal Authority
Authorization of a state NPDES program means that a state is empowered by
EPA to implement the federal program requirements under state laws and regulations.
During the authorization process, EPA determines whether state authorities are
equivalent to federal requirements. One method states can use to achieve this
equivalency is to incorporate into their laws by reference the federal regulations, either
through a given date or prospectively. Alternatively, states may adopt authorities
equivalent to the federal requirements.
Once authorized, states must ensure that their authorities to operate the
program remain current with federal requirements [40 CFR 123.62(e)]. States can
achieve this in one of two ways: (1) revise the state statute and/or regulations as
necessary each time the federal program is updated (this can include incorporation by
references of federal regulations by the state as of a certain date), or (2) prospectively
incorporate future federal requirements into state law by reference. Prospective
incorporation means that any future changes in federal law, would automatically be
incorporated into Washington law. In addition, the state would have to document to
EPA through an Attorney General's Statement that it has this authority and intends to
utilize prospective incorporation by reference as a means of retaining equivalent
current authority.
Congress has amended the CWA several times since the Washington NPDES
program was authorized in 1973. These amendments include, for example, changes
to the technology-based levels of control and compliance dates. While Washington
has revised its statute and regulations since the original NPDES program authorization,
not all of the latest changes appear to be reflected in Washington law or NPDES
permits.
As noted in the MOA, Ecology has not been delegated authority under the
NPDES program to permit and enforce against federal facilities. Ecology agreed to
study the feasibility of seeking delegation over federal facilities activities in FY90, but
has yet to do so.
I. A. 2
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2. Adequacy of Resources Available to Implement Ecology's NPDES
Program
Ecology has two major tools for resource planning: a time management system
for permit workloads, and a biennial program planning workload model which its
headquarters and field offices use. The first planning tool, Ecology's time management
system, is relatively sophisticated and uses standard industrial classification (SIC)
codes. However, Ecology staff acknowledge that this system is not yet being
effectively used. Time card information is to be used to improve the model and link
time to fee categories for internal accounting purposes.
Periodic assessment of full-time equivalent (FTE) staff needs occurs through the
workload model in biennial planning exercises, according to Ecology staff. The
biennial plans are then fine-tuned with available budget monies once the amounts are
known. Program plans are to be developed yearly as part of the SEA. Ecology is
working on improvements to the workload model, including: (1) modify the coding
structure to accurately track permit program expenditures at a level suitable for
management control and evaluation, and (2) conduct training sessions on filling out
time sheets for tracking.
At the time of the audit in August 1991, workload priorities were set according to
the Efficiency Commission recommendations, and most of these were aimed at
rebuilding the "foundation" of the permitting program to support the technical aspects.
Ecology staff believe that the Efficiency Commission plan is moving the program
toward greater program oversight and efficiency. Ecology reports quarterly to the
Efficiency Commission on progress in implementation of Efficiency Commission
recommendations. The bottom line on the Efficiency Commission recommendations,
however, is that implementation costs for much of these improvement's will come out
of existing budgets.
Washington law allows Ecology to fully recover all eligible costs of the permit
program. Costs for compliance monitoring also may be recovered under the fee
system. Enforcement costs are borne out of state's general fund (where permit costs
were formerly borne). The Washington statute was recently amended to change the
municipal fee cap from $.05 to $.15 per residential equivalent. Ecology has indicated
that it will define the purpose and function of the discharge permit fees using an
advisory committee and communicate this to all interested parties. Regulations will be
revised to provide for an application fee and recover program costs. Ecology will
include late charges and revisions to the municipal fee cap in the revised fee regulation
and assess the need for improved collection procedures. In addition, Ecology will
continue to assess fees on the current basis but evaluate variable fee concepts.
While fees go to a dedicated state account, the legislature must actually
appropriate the money received from permit fees that is authorized for Ecology's
permit program. In the past, the permit program was funded entirely from the state's
general fund. At present, fees are intended to largely fund the existing program, but
do not anticipate growth in the program.
II. A. 3
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The state's budget process was underway at the time of EPA's audit. The
legislature subsequently authorized funding of approximately $1.6 million for Efficiency
Commission recommendations during the 1991-93 biennium. Even if fully
appropriated, this would lead to only partial implementation of the Efficiency
Commission recommendations. On September 19, 1991, Ecology presented its
Wastewater Discharge Permit Action Plan which establishes priorities for program
implementation to best utilize the appropriated monies.
Ecology admittedly is not fully funded by the legislature to fulfill either its existing
workload and/or implementation of all of the Efficiency Commission's
recommendations, forcing Ecology's management to make hard decisions on which
functions to fund and perform. The question of funding of environmental programs is
a very difficult one. EPA is unaware of any federal or state environmental program that
is fully funded to allow the program to accomplish all of its responsibilities. Therefore,
all state and federal environmental programs must face hard fiscal realities and
exercise discretion in determining which functions can be funded and performed. All
program managers are facing the challenge of focusing scarce resources in areas
where there is the greatest potential for environmental protection.
In addition, Ecology's ability to process and effectively handle NPDES legal
matters is directly correlated to the ability of the Attorney General's office to provide
support to Ecology. Recently, Ecology issued a significant number of major,
controversial permits, many of which have been appealed. Responding to these
appeals has resulted in a major resource drain on the Attorney General's office and the
water programs.
Currently, one division in the Attorney General's office represents all of Ecology;
this division has 16 attorneys. Within the division there are two sections: (1) Water;
including NPDES, water rights, and Shoreline Management Act issues, and (2) Oil
spills, resource recovery, hazardous waste, toxics, and solid waste issues. Ecology
staff indicated their need for five NPDES attorneys for the water program.
Washington has and will continue to make difficult resource decisions for both
Ecology and the Attorney General's office in an attempt to implement its NPDES
program in an effective manner. This is not to say that Ecology's processes for permit
program workload estimation and allocation cannot be improved, nor that Ecology
should not finalize its revised fee regulations. In addition, EPA encourages the actions
by Ecology and others to seek additional funding from the legislature. The means of
funding a state's NPDES permit program, including collection of permit fees, is not
federally regulated. Approved state programs, however, must remain adequately
funded. Ecology is acting to ensure that the program remains adequately funded. We
support Ecology's efforts to obtain additional funds to implement the Efficiency
Commission's recommendations.
I. A. 4
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Corrective Actions
1. Adequacy of Legal Authority
o Ecology should review its legal authorities and articulate the means used
to ensure its legal authority remains commensurate with federal legal
authority for the NPDES and pretreatment programs.
o Ecology should pursue authority to regulate federal facilities under the
NPDES program.
2. Adequacy of Resources Available to Implement Ecology's NPDES Program
o None required.
II. A. 5
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B. SETTLEMENT AGREEMENTS (Four separate allegations)
Method of Investigation
EPA's audit team reviewed Ecology, EPA Region 10, and EPA Washington
Operations Office (WOO) files and interviewed petitioner and Ecology attorneys, and
EPA Water Division employees. EPA also reviewed relevant court documents
submitted with the petition and those documents that were filed after the petition was
received.
ALLEGATION: ECOLOGY'S PROPOSED SETTLEMENT AGREEMENTS AND
ADMINISTRATIVE ORDERS FAIL TO COMPLY WITH PUBLIC PARTICIPATION
REQUIREMENTS OF 40 CFR PART 123 BY COMPLICATING CITIZEN INVOLVEMENT
AND THE ABILITY TO OBTAIN INFORMATION.
Findings
Background
During 1988-89, Ecology re-issued NPDES permits for many pulp and aluminum
mills. In 1990, many of these facilities appealed the permits, toxic monitoring, and
other provisions. Ecology chose to pursue settlements with these facilities rather than
engage in time-consuming litigation.
On February 7, 1991, Ecology entered into a Settlement Agreement with the
Northwest Pulp & Paper Association (NWPPA), the Puget Sound Water Quality
Authority (Authority), and the Tulalip Tribes. Ecology agreed to modify the permits by
removing the following special permit monitoring conditions to Administrative Orders:
Acute Biomonitoring Study, Chronic Biomonitoring Study, Paniculate Monitoring,
Dilution Ratio Study/Dilution Zone Definition, and Protocols. Ecology planned to
simultaneously issue the Orders with modified permits.
Ecology also agreed in another document entitled "Stipulation and Agreed Order
of Dismissal" to notify the public and hold public hearings concerning the proposed
permit modifications. At the conclusion of the hearing, Ecology would decide whether
to withdraw its concurrence to the settlements.
Ecology held four public hearings during early April 1991 and accepted written
comments. In a March 29, 1991, news release, Ecology extended the comment
deadline to May 1 and added a fifth hearing in Seattle. Ecology acknowledged in the
news release the reason for the extended deadline and additional hearing: it had not
disseminated adequate information to the public in time for a thorough review; it had
included an erroneous telephone number in the fact sheet; and, it had failed to make
available the legal documents. Ecology produced the complete packet of information
(including legal documents) on April 2. It held hearings on April 1, 2, 3, and 4.
I. B. 1
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Ecology is now executing an Amended Settlement Agreement with NWPPA, the
Authority, and the Tulalip Tribes, but has yet to issue the modified permits or Orders.
The Amended Agreement addresses issues raised after the original Settlement
Agreement. Among other things, it shortens the time period for the permittees to
begin biomonitoring, makes the sampling protocols more representative, and provides
for a chronic biomonitoring study. Ecology plans to issue the Orders and modified
permits once the Pollution Control Hearing Board (PCHB) dismisses the pending
appeals. The unsigned final Orders contain monitoring provisions relating to Acute
Biomonitoring Study, Recent Information, Sediment Monitoring, Dilution Ratio
Study/Dilution Zone Definition, and Protocols. Ecology has issued one Order and
modified permit to the Simpson-Tacoma Kraft Company.
As noted in David Ragsdale's (EPA, WOO) letter to Ecology dated
March 21, 1991, Ecology will forward the modified permits (and Orders) to EPA for
review under 40 CFR 123.43.
Merit of Allegation
The petitioners allege that Ecology's proposed Settlement Agreements and
Administrative Orders fail to comply with public participation requirements of
40 CFR Part 123. State NPDES permit programs must have legal authority to
implement minimum public participation provisions. 40 CFR ss123.25(a)(28)-(33).
Additionally, states administering NPDES programs must provide for public
participation by allowing citizens the right to intervene in enforcement actions, or to
public notice and provide at least 30 days for public comment on any proposed
settlement of an enforcement action. 40 CFR ss123.27(d)(1), 123.27(d)(2)(ii).
Although EPA regulations do not dictate the minimum public participation requirements
for Settlement Agreements or permit appeals, public notice would be required for any
permit modifications resulting from these actions.
The petitioners have not submitted any specific information supporting the
allegation that Ecology's proposed Settlement Agreements and Administrative Orders
were subject to or violated the Part 123 public participation requirements. Ecology
appears to have generally complied with public participation requirements for the
proposed permit modifications by notifying the public of the proposed settlements,
preparing fact sheets, holding public hearings, and collecting information.
40 CFRss123.25(a)(28)-(33);
On the other hand, Ecology did not appear to provide citizens in Tacoma,
Everett, Vancouver, or Pasco sufficient time to review the complex documents in
preparation for the hearings. We also note that Ecology has not presented to the
public the Amended Settlement Agreement or all of the final Administrative Orders.
This is evident from the petitioner's allegations, many of which have been addressed in
the final documents.
I. B. 2
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Ecology's proposed Orders and Settlement Agreement contain certain
monitoring provisions originally contained in the reissued permits. However, we
observe that Ecology did not expressly insulate these provisions from citizen suits.
The CWA citizen suit provision allows a citizen to commence a civil action against an
alleged violator of:
(A) an effluent standard or limitation or (B) an Order issued by the
Administrator or a state with respect to such a standard or limitation. . .
The district courts shall have jurisdiction. . . to enforce such an effluent
standard or limitation, or such an Order, or to Order the Administrator to
perform such act or duty. . .
42 USC 1365(a) (emphasis added). "Effluent standard or limitation" includes an
NPDES permit or condition.
The proposed settlements do not expressly violate NPDES public participation
requirements related to permit reissuance or modification in accordance with the
proposed settlements. Ecology, as an authorized state can exercise its discretion to
settle administrative appeals of permits; there are no specific regulatory provisions on
this issue relevant to authorized states.
However, we note that certain aspects of the proposed settlements could make
public participation more difficult. We caution Ecology not to repeat past mistakes in
future actions. We note that Ecology allowed little time for interested citizens to collect
and digest the complex settlement materials before the early April hearings. Once
Ecology decided to solicit public input, it should have provided the complex information
in a more organized and timely fashion. We also note, however, that Ecology
addressed many of the public participation problems raised in SCLDF Attorney
Rebecca Todd's March 28, 1991, letter to Christine Gregoire.
Second, we query whether citizens will be hindered in their ability to obtain
monitoring results under the Orders. We understand that Ecology will maintain each
facility's monitoring information in the same file as Discharge Monitoring Reports
(DMRs) to ensure public access. We underscore that Ecology must make this
information easily accessible to the public. We note that Section 308 of the CWA
mandates that effluent data related to applicable effluent limitations, toxic, pretreatment,
or new source performance standards must be made available to the public.
We note that the operative withdrawal regulations contained in 40 CFR Part 123
contain no citizen suit requirements, other than to require states to allow citizens to
intervene in enforcement actions. While Ecology has not precluded citizen suits under
Section 505 of the CWA, it has imposed a potential legal hurdle. Citizens must
demonstrate that the Order and Amended Settlement Agreement monitoring provisions
were issued "with respect to all effluent standards or limitations" [see
33 USC s1365(a)]. Neither document contains such language nor expressly
incorporates the modified permits.
II. B. 3
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We recommend that Ecology consider modification of its Orders and Settlement
Agreements to ensure that they are issued "with respect to effluent standards or
limitations" contained in the permits and expressly incorporate the permits. This
complies with our requirement that:
All permit conditions [including monitoring] shall be incorporated either
expressly or by reference. If incorporated by reference, a specific citation to the
applicable regulations or requirements must be given in the permit.
Id. ats122.43(c).
Corrective Action
o None required.
II. B. 4
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ALLEGATION: THE CONTENT OF ECOLOGY'S PROPOSED SETTLEMENT
AGREEMENTS AND ADMINISTRATIVE ORDERS MAKE IT IMPOSSIBLE FOR ECOLOGY
TO PERFORM ITS MANDATORY DUTIES WITH REGARD TO THE DELEGATED NPDES
PROGRAM.
Findings
Background
The petitioners have not cited any particular provisions in 40 CFR Part 123.
However, EPA has evaluated the alleged deficiencies of the Settlement Agreements
and Administrative Orders based on the criteria set forth in 40 CFR s123.63(a)(2)(i)
and (ii):
Where the operation of the state program fails to comply with the requirements
of this part, including: (!) Failure to exercise control over activities required to be
regulated under this part, including failure to issue permits; (ii) Repeated
issuance of permits which do not conform to the requirements of this part.
Merit of Allegation
The petitioners allege that the Settlement Agreements:
[1] preclude opening the permit based on oyster larvae bioassay data,
despite expected mortality; [2] do not require chronic bioassays until
15 months after issuance of the permit; [3] provide that sediment
monitoring plans are to be submitted in 15 months for Ecology approval,
with no timeframe for such approval, and that monitoring must be
completed within 12 months. A reduced sediment monitoring plan can
be approved under several easily met exceptions; and [4] contain no
provisions that Ecology will timely approve study plans, promulgate
whole effluent toxicity standards, reopen permits or take other regulatory
action if the data so warrant, or enforce properly the permit conditions.
1. Opening the Permit
Ecology did not waive its right to reopen the permit based upon oyster larvae
bioassay data. The amended Settlement Agreement states:
It is understood that the Department, not withstanding its participation in
the marine biomonitoring precision study, retains any ability it has by law
to respond to any evidence of toxicity caused by the Permittee's
effluent, even if this evidence is obtained prior to, or during, or as a result
of the study (emphasis added).
I.B. 5
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However, we note that this provision is included in only the Amended
Agreement's Chronic Biomonitoring Study section.
We note that an earlier version of the proposed Order, consistent with
Petitioner's allegations, limited Ecology's ability to reopen the permit based on oyster
larvae bioassay data. In that case, Ecology might have violated Part 123 if it had
limited its ability to include an effluent limit for whole effluent toxicity in the permit
despite its later determination that a discharge caused or reasonably could cause or
contribute to an in-stream excursion above a narrative criterion. See 40 CFR
123.44(d)(1)(v). We recommend that, for clarity's sake, Ecology include reopener
language that applies to all monitoring provisions, rather than limit it to the Amended
Agreement's chronic biomonitoring study provision.
2. Delayed Chronic Bioassavs
The Amended Agreement delays the permittees obligations to conduct chronic
bioassays for nine months from permit issuance. The nine month delay does not
violate any requirements of the CWA.
3. Delayed Sediment Monitoring Plans
The most recent Administrative Order requires the permittee to submit a
sediment monitoring plan to Ecology within nine months of the permit and to begin
sampling within 12 months after Ecology's approval, but sets no deadline for Ecology's
approval. The nine month delay does not violate any requirements of the CWA.
Additionally, federal regulations do not expressly require permittees to monitor
sediments, and we commend Ecology for exceeding minimum federal requirements.
4. No Provisions Regarding Plan Approval. Toxicity Standards Approval, or
Regulatory or Enforcement Action
The Amended Agreement and Order do not require Ecology to approve study
plans within a specified period of time. Nor do the documents contain language
specifically relating to toxicity standards approval or regulatory or enforcement action.
The Amended Agreement contains the general statement quoted above that preserves
Ecology's right to "respond to any evidence of toxicity caused by the Permittee's
effluent." The modified permit provisions contain standard enforcement language in
the event that the permittee fails to comply with permit terms and conditions.
We reiterate our caution expressed above concerning eventual inclusion of
effluent limits for whole effluent toxicity in the permits. If Ecology is aware of
information indicating that the permittees' discharges cause or have the reasonable
potential to cause or contribute to an instream excursion above the narrative standard,
Ecology must expeditiously proceed to include toxicity effluent limits in the permits
pursuant to 40 CFR s 122.44(d)(1)(ii). We also note that Ecology has independent
authority under RCW 90.48.120 to take enforcement action for violation of the state
water pollution control statute.
II. B. 6
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We are concerned that at the time of this report Ecology has yet to issue all of
the modified permits and Orders. We recommend that Ecology adopt a schedule for
prompt issuing of the remaining permits and Orders.
Corrective Action
o Ecology should develop and implement a schedule for issuing the remaining
dioxin permits and Orders.
I.B. 7
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ALLEGATION: ECOLOGY'S PROPOSED SETTLEMENT AGREEMENTS AND
ADMINISTRATIVE ORDERS REGARDING THE THIRTEEN DISCHARGERS AND
NORTHWEST PULP AND PAPER ASSOCIATION MEMBERS CONSTITUTE ACTIONS BY
THE WASHINGTON STATE COURTS OR LEGISLATURE THAT LIMIT THE AUTHORITY
NECESSARY TO CARRY OUT THE NPDES PROGRAM.
Findings
We do not understand how the proposed Settlement Agreements constitute
anything other than administrative action to date. See above discussion.
Corrective Action
o None required.
II. B. 8
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ALLEGATION: THE THURSTON COUNTY SUPERIOR COURT DECISION INVALIDATING
THE NARRATIVE WATER QUALITY STANDARD AND ENJOINING PERMIT LIMITS FOR
2,3,7,8-TCDD CONSTITUTES AN ACTION BY WASHINGTON STATE COURTS LIMITING
THE AUTHORITY NECESSARY TO CARRY OUT THE NPDES PROGRAM.
Findings
Background
Three pulp mills challenged Ecology's authority to regulate discharge of
2,3,7,8-TCDD (dioxin) in Thurston County Superior Court. The court held that Ecology
could not include dioxin standards in the mills' NPDES permits because it had failed to
promulgate numeric dioxin standards through rulemaking and the narrative standards
were unconstitutionally vague. Simpson Tacoma Kraft Co. v. Department of Ecology.
Civ. Nos. 90-2-00398-9, 00399-7, 00400-4 (Thurston Cty. Sup. Ct. December 12, 1990).
Meanwhile, the three mills are appealing their dioxin permit conditions before the
PCHB.
Ecology appealed the Thurston County case to the Washington Supreme
Court. The court granted the mills' motion for a stay pending appeal, with certain
conditions. The Commissioner ruled that if the pulp mills successfully challenged the
numeric and narrative WQS, then the compliance deadlines in the permits:
shall be determined at the time this appeal terminates in consideration of this
Order and the practical consequences to the parties in reliance on this Order,
but in any event, such deadlines shall not exceed three years from the
termination of this appeal.
Ruling Granting Motion for a Stay Pending Appeal at pp. 6-7, Simpson Tacoma
Kraft Co. v. Department of Ecology. Civ. No. 57949-1 (June 6, 1991).
Further, if any of the mills appeal their NPDES permits, the conditions in the
permits relating to the control of dioxin are stayed during the pendency of the appeal.
Merit of Allegation
We find that Ecology is vigorously defending its dioxin limits before both the
PCHB and the Washington State Supreme Court. Additionally, we understand that
Ecology plans to oppose the mills' requests for stays on dioxin permit conditions
before the PCHB. Conversely, we would be concerned if Ecology failed to take the
necessary legal steps to protect existing standards or, should it lose the legal battles, if
Ecology failed to expeditiously follow the court's direction to properly issue dioxin
standards.
II. B. 9
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We also observe that there is nothing to preclude an identical delay should a
permittee appeal federal standards in federal district court. However, we recognize
that Ecology has chosen not to promulgate WQS based on human health criteria, and
is relying on federal establishment of such standards. In the November 19, 1991,
Federal Register, EPA published proposed WQS for toxic pollutants. EPA's target date
for promulgating these standards is February 19, 1992.
Corrective Action
o None required.
I. B. 10
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C. PERMIT PROGRAM REVIEW
ALLEGATION: ECOLOGY FAILED TO PROMULGATE INDIVIDUAL CONTROL
STRATEGIES (ICS) FOR 2,3,7,8-TCDD FOR WASHINGTON STATE SUFFICIENT TO
ACHIEVE THE APPLICABLE WATER QUALITY STANDARDS AS REQUIRED BY 33 U.S.C.
SECTION 1314(1).
Method of Investigation
To evaluate this allegation, EPA reviewed the administrative records for
development and promulgation of ICSs for those sources identified by the state in its
304(1) listing. Specifically, EPA focused on ICS development for control of
2,3,7,8-TCDD.
Findings
Background
[Much of this section was excerpted from EPA's March 8, 1991 final decision
regarding the state's listing under 304(1). See Appendix ll-C-1 for the full decision.]
Section 304(1) of the CWA, as amended by the Water Quality Act of 1987,
requires every state to develop lists of impaired waters, identify certain point sources
and amounts of pollutants causing toxic impact, and develop individual control
strategies for each identified point source. The deadline for submitting the lists of
waters, point sources, amounts of pollutants, and the ICSs by each state to EPA was
February 4, 1989. The state of Washington initially submitted its lists of point sources
and ICSs on March 16, 1989. On June 9, 1989, the state added a number of
waterbodies and sources to the list.
Not later than 120 days after the deadline for submitting the lists and ICSs to
EPA. The EPA was to approve or disapprove the list and ICSs. If a state failed to
submit a list or control strategy, or if EPA did not approve the list or control strategy,
then EPA, in cooperation with the state and after opportunity for public comment, must
develop the lists and control strategies.
EPA Region 10 issued a decision on June 9, 1989, that approved in part and
disapproved in part the state of Washington's submissions under 304(1). The three
lists of impaired waterbodies and the list of sources were approved as submitted. The
ICSs, except for one, were not approved as submitted. The state, in close
consultation with EPA, worked to develop ICSs for the listed point sources.
On March 8, 1991, EPA made a final decision on the Washington's 304(1) listing
of waters and point sources requiring ICSs to retain 10 point sources on the
Section 304(1)(1)(C) list that were originally proposed on June 9, 1989, and proposed
to add one more point source to the list. In addition, EPA conditionally approved eight
II. C. 1
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ICSs, and established them as ICSs on March 8, 1991, subject to two requirements:
that the ICSs be revised to include a compliance date set for three years from the
establishment of the ICS (i.e., three years from March 8, 1991); and that the ICSs be
issued as final NPDES permits by June 4, 1991. The current status of the facilities
listed on the paragraph (C) list are as follows:
Facility. Receiving Water. NPDES No. ICS Established
Weyerhaeuser Co., Longview 3/8/91
Columbia River
WA-000012-4
James River II, Camas 3/8/91
Columbia River
WA-000025-6
Boise Cascade, Wallula 3/8/91
Columbia River
WA-000369-7
Longview Fibre, Longview 3/8/91
Columbia River
WA-000007-8
Weyerhaeuser Co., Cosmopolis 3/8/91
Inner Grays Harbor
WA-000080-9
ITT Rayonier, Hoquiam 3/8/91
Inner Grays Harbor
WA-000307-7
Weyerhaeuser Co., Everett 3/8/91
Port Gardner
WA-000300-0
Simpson Tacoma Paper Co., Tacoma 3/8/91
Outer Commencement Bay
WA-000085-0
Reynolds Metals Co., Longview 10/15/90
Longview Ditches
WA-000008-6
I.C. 2
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Weyerhaeuser Wood Products Div. previous permit expired
Longview Ditches 9/16/91, no ICS
WA-003918-7 (minor) established
In its March 8, 1991, decision, EPA also proposed to add the following point source to
the paragraph (C) list, and solicited comment on its proposal:
Facility. Receiving Water. NPDES No. ICS Established
ITT Rayonier Inc., Port Angeles 7/3/91
Port Angeles Harbor
WA-000079-5
In summary, ICSs were established on March 8, 1991, for all sources listed on
the 304(I)(1)(C) list as a result of 2,3,7,8-TCDD discharge. Limits for 2,3,7,8-TCDD
contained in the ICSs were based on the levels necessary to meet WQS.
In the one case where an ICS has not yet been issued (Weyerhaeuser Wood
Products Div.), the pollutants of concern are metals. As stated in the March 8, 1991,
decision, EPA is continuing to work with the state to establish an ICS for this facility.
Merit of Allegation
Although establishment of ICSs was delayed beyond the original
February 4, 1989, deadline set forth in the implementing regulations for the CWA, EPA
concludes that ICSs were established for 2,3,7,8-TCDD, as required by Section
304(l)(1)(D)oftheCWA.
Corrective Action
o None.
II. C. 3
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ALLEGATION: THE STATE HAS FAILED TO DEVELOP WATER QUALITY-BASED
EFFLUENT LIMITS AND ADEQUATE TOXICS CONTROLS FOR PERMITS
Method of Investigation
The primary purpose of this investigation was to determine whether
Washington's implementation of water quality-based effluent limits and toxics controls,
through NPDES permits, meets the requirements of federal law. A secondary objective
was to determine whether Washington's NPDES permits met Ecology's stated policies
and guidance that, in some cases, exceed the scope of federal law.
The focal point of this investigation was the evaluation of a sample of Ecology's
permits. A standardized review process, called a Permit Quality Review (PQR), was
conducted by EPA Headquarters and Region 10 personnel. The scope of a PQR
covers both technical and administrative aspects of the NPDES permitting program.
Preliminary PQR results can be found in Appendix ll-C-2. EPA focused specifically on
the derivation of permit limits to insure that Ecology took water quality and toxics
control into consideration.
EPA's approach to investigate this allegation was to identify federal law,
regulations, and guidelines governing implementation of the NPDES permit program;
review Washington law, policies, and WQS; review Ecology's implementation of action
items identified in the 1988 State Toxics Program Review conducted by EPA; and
evaluate a sample of permits, primarily for compliance with federal law and regulations,
and secondarily, for consistency with Ecology policy.
A list of references used in the preparation of the Permit Program Review
section of this report are found in Appendix ll-C-3.
Washington Law. Policies, and Water Quality Standards on Implementation of the
NPDES Program
For the permit program portion of the petition review, the following federal laws,
regulations, and policies were used as a basis for evaluating Ecology's program:
CWA, as amended
40 CFR Parts 122, 123, 124, 125, 130
Development of Water Quality-Based Permit Limitations for Toxic
Pollutants; National Policy, 49 Federal Register 9016, 1984
Whole Effluent Toxicity Basic Permitting Principles and Enforcement
Strategy, from Rebecca Hanmer, Acting Assistant Administrator, Office of
Water, to Regional Administrators, January 25, 1989
II. C. 4
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U.S. EPA. 1991. Technical Support Document for Water Quality-Based
Toxics Control, Office of Water, EPA/505/2-90-001, March 1991
U.S. EPA. 1991. Guidance for Water Quality-Based Decisions: The TMDL
Process
U.S. EPA. 1987. Permit Writers' Guide to Water Quality-Based Permitting
for Toxic Pollutants, EPA 440/4-87-005.
EPA reviewed a significant amount of background information on Ecology's
permit program, including Washington's WQS, water quality planning process,
biomonitoring policy, sediment management standards, Permit Writers' manual, and
the PSWQMP. In addition, EPA reviewed Ecology's implementation of action items
identified in the 1988 State Toxics Program Review conducted by EPA. With the
exception of the WQS, all of these policy initiatives are outside the scope of federal
law, and therefore beyond the scope of the petition review. However, this information
is presented because it forms the basis for Ecology's permit limits and conditions,
which are the main focus of this investigation.
Washington's Water Quality Standards
WQS form the basis for water quality-based permit limits. Washington's
standards are currently in the process of a triennial review. As of December 1991,
passage of the complete revision package was delayed by legislative intervention over
one aspect of the revisions - the wetland WQS. At the earliest, the revised standards
will be adopted in May, 1992. Because the WQS are subject to their own review
process (the triennial review), their adequacy was not investigated in this report.
EPA commented on the January 1991 draft of the proposed revisions to
Washington's WQS. After final state adoption, the standards will be submitted to EPA
for review. Ecology's proposed amendments to the WQS, and their current status,
include:
Updating Washington's antidegradation policy - The antidegradation
policy statement is being amended to be consistent with the federal
antidegradation policy. Development of an implementation plan is
planned for this year.
I.C. 5
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Adopting numerical limits for additional toxic substances - Ecology has
decided to formally adopt only those aquatic life criteria currently adopted
as National Criteria. Consequently, only an additional four criteria for
toxic substances (salt water ammonia, fresh and salt water arsenic, fresh
and salt water selenium, and fresh water chloride) are being added to the
standards. Quality Criteria for Water, 1986 (Gold Book) information on
toxic substances currently expressed as lowest observable effect levels
(LOELs) will be applied on a case-by-case basis.
Washington has not, however, proposed additional numeric criteria to
protect for human health. These numeric criteria were supposed to be
established by all states to interpret the narrative criterion. Because
several states, including Washington, have not acted to promulgate
human health criteria, EPA has developed a rulemaking that proposes to
adopt numeric human health criteria for these states. This proposed
rulemaking, the National Toxics Rule, was published in the Federal
Register on November 19, 1991. Once a final rule is established (target
date: February 19, 1992), the criteria will serve the same purpose as if
Washington had adopted them through state regulation - they will
become part of their WQS.
Ecology currently uses its narrative criterion as a basis for regulating
chemicals to protect for human health.
Adding conditions for designating mixing zones - The new mixing zone
standard will be Washington's first codification of mixing zone guidelines.
Sizing of mixing zones was previously based on guidance contained in
Criteria for Sewage Works Design (1983). The new regulation will
address many issues that were not considered in previous guidance,
including conditions relating to size limitations, the overlap of mixing
zones, the relation of the mixing zone to acute water quality criteria, and
storm water discharges.
Clarifying the use of toxicity testing and biological assessments to protect
aquatic biota - Some clarifying language will be added to the regulation to
reinforce the use of biomonitoring in permits.
Adopting wetlands water quality criteria - These criteria are currently at
issue. There is a possibility that they will be included in the current
triennial review.
Adopting a human health risk level of 1:1.000.000 for setting limits on
carcinogens in water - This is included in the ongoing triennial review.
Clarifying how the standards apply to nonpoint sources of pollution -
Some clarifying language will be added.
II. C. 6
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Reclassifying specific water bodies - This has been included in this
triennial review.
Water Quality Planning
In accordance with the water quality planning and reporting provisions of
Section 305(b) of the CWA, Ecology has submitted biennial reports that summarize the
status of water quality in Washington. The 1990 305(b) report also contains a list of
water quality limited segments, which are those waterbodies that do not meet or are
not expected to meet WQS even after imposition of technology-based controls. Action
required on these segments may include imposition of best management practices
(BMPs), development and implementation of basin management plans, or development
of TMDLs and implementation of wasteload and load allocations (WLA/LA).
Ecology and EPA were sued by the Northwest Environmental Advocates and
the Northwest Environmental Defense Center for failure to properly implement the
TMDL requirements of CWA Section 303(d). The plaintiffs charged that Ecology failed
to establish permit limits adequate to protect water quality, and that EPA has not taken
action in the face of Ecology's inaction.
The TMDL lawsuit affects Ecology's NPDES program because water
quality-based permits follow naturally from TMDL analyses. TMDLs, which are the sum
of the wasteload (point source) and load (nonpoint source and background)
allocations, are derived from a scientific analysis of the "carrying capacity" of the
waterbody. In the absence of TMDLs, permits on water quality limited segments are
not developed on a waterbody "carrying capacity" approach; rather, they are limited to
a single discharger's impact on the immediate area of the discharge. This type of
analysis may underestimate the overall combined effects of multiple dischargers on a
waterbody, especially when the pollutants of concern are bioaccumulated.
Ecology submitted a description of its proposed TMDL process to EPA
describing the steps it will take to develop water quality-based controls for water
quality limited segments. The process involves problem identification, project
prioritization, determination of the loading capacity, allocation of the point source
wasteloads and nonpoint source loads, public participation, adoption of the TMDL and
WLA/LA into the state water quality management plan, and follow-up monitoring to
insure that the TMDL is protective of water quality. Implementation of the TMDL,
through permits and best management practices, should result in attainment of WQS.
EPA approved the TMDL process paper submitted by Ecology, with the
knowledge that the process will continue to evolve as it is implemented.
Implementation of this proposed process would address many of the concerns
expressed in the TMDL lawsuit.
II. C. 7
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Biomonitoring Policy
The state's interim biomonitoring policy, dated June 1988, provides guidance to
Ecology staff in developing biomonitoring and toxicity control requirements for NPDES
permits. The policy "requires dischargers to use biological testing to assess the
toxicity of their wastewater discharges and the effect upon receiving waters and
sediments as a condition for using public waters for disposal of wastewater." The
policy includes information on types and frequency of testing, a timeframe for phasing
biomonitoring requirements into all Washington discharge permits, and procedures for
addressing discharges that exhibit toxicity.
Ecology's general approach is to require all permittees to conduct whole effluent
toxicity testing, and require receiving water and sediment toxicity data as appropriate.
If test results indicate the presence of toxicity, the permittee must investigate the cause
and take steps to reduce the toxicity. Toxicity must be reduced to the point that WQS
are met. Critical to this analysis is the application of mixing zone standards. Based on
the dilution available in the designated mixing zone, water-quality based limits for
toxicity may then be included in the permit.
EPA is concerned that Ecology's interim biomonitoring policy does not go far
enough in instituting toxicity limits where there is a "reasonable potential to cause, or
contribute to an excursion above any state WQS." [40 CFR s 122.44(d)(1)(i)] While
EPA intended to give state permitting agencies some discretion in making this
determination, EPA believes that Ecology should establish toxicity limits in permits in
certain instances. Such instances, further described in 40 CFR s122.44(d), include:
(1) when an analysis of chemical-specific effluent data indicates potential violations of
WQS after appropriate dilution assumptions; and (2) when whole effluent toxicity tests
show potential violations of WQS at a critical percent dilution. In these cases, Ecology
should promptly ensure that permits include chemical-specific or whole effluent toxicity
limits. If limits on toxics are not instituted, EPA will consider exercising its authority to
object to state permits. See 40 CFR s 123.44.
Sediment Management Standards
Ecology has taken the precedential step of adopting statewide Sediment
Management Standards (WAC 173-204) for source control and cleanup activities.
These standards were submitted to EPA for review and approval under CWA
Section 303 (c). Because Ecology's sediment standards are more stringent than any
existing federal guidelines for WQS or sediment management, EPA commends
Ecology's efforts as an important step in protecting sediment from biological and
chemical contamination. Ecology is currently including sediment sampling in NPDES
permits to evaluate the impact of the discharge on the sediment.
II. C. 8
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Permit Writers' Manual
One of the elements identified in the 1987 PSWQMP was the development of a
Permit Writer's Manual to ensure consistency and quality in permit writing. Major
objectives of the manual are: to define a philosophy of permitting and the role of the
permit writer; to define the minimum standards for permit writing; to ensure statewide
consistency in permitting, especially for Best Professional Judgment (BPJ) permits;
and, to serve as a continually updated resource for experienced permit writers.
Ecology began the manual in 1987 and planned to complete it by
June 30, 1988, but the schedule has greatly lagged. Ecology distributed a draft
manual for public comment on July 14, 1989. Significant revisions to the draft manual,
specifically regarding water quality based permitting, were distributed in spring 1991.
Existing portions of the manual are currently being used by Ecology permit writers, but
completion of some chapters remains behind schedule.
EPA had many comments on the draft manual, particularly with respect to the
chapter on water quality-based permitting. Ecology's latest draft of the chapter on
water quality-based permitting clarifies and corrects many aspects of the program, and
generally conforms with federal guidance contained in the Technical Support
Document for Water Quality-Based Toxics Control (EPA/505/2-90-001). However,
implementation of these requirements is still at issue, as described in the above section
on the biomonrtoring policy.
EPA also commented on the current lack of definition of "all known, available,
and reasonable technology" (AKART). AKART is a provision of Washington law that
refers to the state's determination of some level of technology-based treatment. This
level of treatment is often used to calculate permit limits. For example, for some
industrial permittees, Ecology determines that AKART is equivalent to EPA's best
available technology. In other cases, Ecology may determine a different AKART. For
municipal permittees, Ecology generally defines AKART as secondary treatment.
AKART is currently invoked in many NPDES permits to control leachate and storm
water. Ecology needs to formalize the procedures by which AKART is determined.
Puget Sound Water Quality Management Plant, 1987; Puget Sound Water
Quality Management Plan, 1991; Issue Paper on Industrial and Municipal
Discharges, 1986
The Authority's 1986 issue paper on industrial and municipal discharges
identified weaknesses in Ecology's permitting program, many of which are mentioned
in the petition. The Authority further addressed these weaknesses in the 1987
PSWQMP, and defined a program goal and strategy to correct them. As stated, the
program goal was "to achieve comprehensive improvement in the control of toxic
pollutants discharged into Puget Sound by industrial and municipal dischargers,
reducing and eventually eliminating harm from toxic contaminants entering or
accumulating in the Sound." To achieve this goal, the Authority identified 26 program
II. C. 9
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elements aimed at correcting problems in the permitting program, and set target dates
for implementation. The program elements covered issues relating to WQS, permits,
compliance assurance, enforcement, pretreatment, technical assistance, and public
involvement. Program elements related to this review include:
P-1. Adopt EPA Water Quality Criteria
P-2. Standards for Classifying Sediments Having Adverse Effects
P-3. Water Column and Sediment Mixing Zone Criteria
P-5. Permit Writers Manual, Permit Quality Control, and Internal Technical
Assistance for Permit Writers
P-6. Toxicant Effluent Limits in Permits
P-7. Paniculate Effluent Limits and Solids Handling
P-8. Monitoring Requirements in Permits
P-10. Explanation of Relaxed and Increased Limits in Permits
P-19. Training for Inspectors and Permit Writers
The 1991 PSWQMP updated Ecology's progress toward achieving the program
goals. Areas of significant improvement noted since 1987 included:
toxic limits in permits
development of a draft permit writer's manual to standardize permit
writing
development of a draft mixing zone WQS
self monitoring, including sediment monitoring and biomonitoring
increased penalties
improved laboratory data from Ecology's Manchester laboratory
updated municipal operator certification test includes pretreatment
permit fact sheets for major industrial permits and some others
increases in funding
Additionally, the PSWQMP indicated that areas still needing improvement included:
enforcement program
adoption of felony provisions for serious violations
number of thorough inspections
development of a system to detect unpermitted discharges
independent verification of self monitoring results
resources
The 1991 PSWQMP was approved by EPA as a Comprehensive Conservation
and Management Plan (CCMP) under the National Estuary Program, as authorized
under Section 320 of the CWA. Section 320 requires each estuary program to review
federal assistance programs and development projects for consistency with the CCMP.
By approving the CCMP, EPA strongly supports the plan's recommendations, although
CCMPs are not regulatory in nature.
I. C. 10
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Review Ecology's Implementation of Action Items Identified in the 1988
State Toxics Program Review Conducted by EPA
In response to the heightened emphasis on toxics control following passage of
the Water Quality Act of 1987, EPA Headquarters directed its regional offices to
conduct reviews of state toxics control programs. Region 10 conducted its review of
Washington's toxics control program in early 1988. The review covered all aspects of
the program, including state authority and legal mechanisms for toxics control, WQS,
identification of waters in need of toxics control, exposure assessment and wasteload
allocation procedures, and effluent characterization and permitting. Following the
review, EPA provided a list of action items to Ecology. These items were proposed to
be scheduled through the 1989 SEA workplan and the state's Clean Water Strategy.
The five major action items, and Ecology's current status in responding to them,
are:
Document the mechanism for translating the narrative criterion for
controlling toxics into numeric NPDES permit limits. Address both human
health and aquatic life concerns. - This mechanism is documented in the
Permit Writer's Manual, which is still in draft form. The chapter
addressing was recently revised and undergoing review. Human health
concerns have not been fully addressed.
Revise the state's dilution zone policy. - This revision is being
incorporated into the state's WQS in the current triennial review.
Incorporate human health considerations into the permitting process. -
Human health concerns have not been fully addressed. Promulgation of
EPA's proposed National Toxics Regulations will effectively result in
adoption of human health criteria for Washington. (It should be noted
that EPA is developing guidance on integrating human health concerns
into permits. EPA's Technical Support Document for Water Quality-
Based Controls contains some guidance on considering
bioconcentrations and human health factors in permits.)
Develop procedures for deriving water quality-based permit limits. - These
procedures are contained in the Permit Writer's Manual, which is
currently under review.
Document the procedures for implementing the antidearadation
provisions. - These implementation procedures will be developed during
FY92.
Other action items were also identified in the 1988 review of the state toxics
control program. Ecology has also made progress in addressing these items.
II. C. 11
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Other completed action items include:
Develop sediment quality criteria
Develop 304(1) lists
Continue with waterbody system
Define TMDL procedures
Ensure biomonitoring, ambient monitoring in permits
Incompleted action items include:
Complete overall toxics control strategy
Develop ICS for 304(1) short list sources
Develop agreement among state agencies regarding use/control of
herbicides and pesticides adjacent to surface waters
Develop state-wide monitoring strategy that combines state and NPDES
information
Develop chlorine and ammonia strategies
Plan for coordination of comprehensive ambient monitoring with NPDES
permit issuance
Develop standard approach to toxicity reduction evaluations.
Findings
Selection of Permits for Review
EPA routinely reviews all draft major NPDES permits prior to reissuance. Major
non-municipal dischargers are defined by EPA via a ranking system which weighs such
factors as potential for release of toxic pollutants, effluent volume, receiving water flow,
public health impacts, site specific water quality factors, and proximity to near coastal
waters. Major municipal dischargers are defined as those that discharge over one
million gallons per day. All other dischargers are classified as minor dischargers.
EPA reviewed 19 of Ecology's recently issued major and minor NPDES permits
to determine the merits of the allegation that Ecology does not include adequate toxic
controls in permits. To assess the pervasiveness of the issue throughout the
permitting program, EPA selected permits from all four regional offices, the urban bay
action teams (UBAT), Industrial Section (IS), and headquarters office (salmon net pen).
Criteria used to select permits for review included:
recent reissuance;
major and minor permits;
limited available dilution;
receiving water designated as a water quality limited segment under
303(d);
infiltration/inflow problem;
written by different regional offices/groups;
II. C. 12
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pretreatment programs;
mentioned by petitioners as "of specific interest;"
ICS;
Superfund site;
BPJ/AKART used where no effluent guidelines exist;
new source (no previous permit); and
representative industries.
EPA also narrowed the universe of Washington permits to those issued or
reissued within the past two years. Major and minor permits from each regional office
were assessed according to variables listed above. For example, the Tacoma #1
sewage treatment plant permit was selected because it is a major permit from the
Southwestern Regional Office, discharged to a water quality limited segment, and was
also requested by the petitioners.
EPA selected the industrial permits to represent all Ecology groups that write
industrial permits: the IS, the regional offices, the UBATs, and the headquarters office.
The major Washington industries (oil refineries, pulp and paper, aluminum smelters)
are all represented, as well as some other industries (drydocks, net pens, chemical
manufacturing, metals recycling). Some permits (e.g., Sonoco, Intalco, Longview
Fibre, Texaco) were included at the request of the petitioners; others (Ponderay, Sea
Farm) were included due to public comment during the public workshops. Longview
Fibre represents an ICS under 304(1). Ponderay is a new source. Atochem,
J.M. Martinac, and General Metals are all discharging to a Superfund site -
Commencement Bay Nearshore/Tideflats - were written by the UBAT. General Metals
is a BPJ/AKART permit. It should be noted that this is not necessarily a representative
sampling of the universe of Ecology permits. Rather, EPA selected these permits
because they are some of the most technical permits written by Ecology.
The permits selected for review are shown in Table 1.
I. C. 13
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Table 1. Selection of Permits for Petition Review
INDUSTRIALS
NPDES No.
WA-000295-0
WA-000007-8
WA-000294-1
WA-004526-8
WA-000088-4
WA-000028-1
WA-000311-5
WA-004028-2
WA-004034-7
WA-004041-0
MUNICIPALS
WA-004465-2
WA-002041-9
WA-003708-7
WA-002110-5
WA-002262^
WA-002252-7
WA-002112-1
WA-004029-1
WA-002261-6
Name
Intalco Aluminum
Longvlew Fibre
Texaco, Anacortes
Ponderay Newsprint
Sonoco
Kalama Chemical
Atochem
J.M. Martinac
General Metals
Sea Farm
Pullman
Richland
Tacoma #1
Chehalis
Federal Way
Vashon
Golden dale
Thurston Co. Pub Wks
Cotville
Waterbodv ID#
26-WRIA-99
02-03-03
26-62-05
05-10-05
26-01-01
WA-1 0-0020
05-10-01
WA-1 9-0010
WA-34-1020
WA-CR-1030
WA-1 0-0010
WA-23-1020
04-09-08
25-01-00
14-30-01
Location
Strait of Georgia
Columbia R.
Fidalgo Bay
Pend Oreille R.
White R.
Columbia R, RM 74
Commencement Bay
Commencement Bay
Hylebos Waterway
S. Fork Palouse R.
Yakima R.
Puyallup R.
Chehalis R.
Dumas Bay, PS
Puget Sound
Little KlickitatR.
Cotville R.
Issue
Date
1/9/91
5/10/91
9/1/89
10/25/89
10/5/90
12/14/90
2/26/91
1/30/91
5/7/90
4/27/90
7/6/90
7/1/90
6/27/90
12/10/90
6/1/90
6/29/90
6/30/89
3/29/90
4/30/90
Writer
Industrial
Industrial
Industrial
ERO
Industrial
SWRO
UBAT
UBAT
UBAT
SWRO
ERO
CRO
SWRO
SWRO
NWRO
NWRO
CRO
SWRO
ERO
I. C. 14
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Summary of Findings
The findings cited in this section constitute "raw data" gleaned from EPA's
August 1991 review of Ecology's files, and apply to those permits that were evaluated
as part of the petition investigation. Because the file review was conducted as part of
a PQR, and because we wanted to make some general comparisons between the 19
permits, these findings are grouped according to the components of the permit files:
general program comments, permit limits, permit conditions and monitoring
requirements, fact sheets, application forms, public notice, and response to comments.
EPA's WOO, which reviews all of Ecology's major permits, reviewed this data for
accuracy. Based on this sample of Ecology permits, EPA reached general
conclusions on the overall implementation of Ecology's NPDES program. Areas where
corrective actions are necessary are noted in a later section.
1. General - program
Ecology's permit files are generally complete, with permit applications,
existing permits, previous permits, correspondence, and technical
information pertaining to development of permits. All permits reviewed
were well organized in that they included a table of contents and a
summary of scheduled activities and/or report submittals, such as
conducting dilution zone studies or submitting discharge monitoring
reports.
Ecology's public notice of permits sometimes exceeds federal
requirements. Ecology typically notifies the public of its receipt of the
permit application with the intent of using this notice to develop a mailing
list of interested parties. Later, when a permit has been drafted, Ecology
solicits public comment on the content of the draft permit.
Ecology has conducted several training sessions on water quality-based
permitting for Ecology permit writers, and has encouraged staff's use of
the permit writer's manual.
Ecology has instituted use of a computerized "permit shell," which
provides a consistent format and framework for writing a permit. Ecology
has also developed computerized spreadsheets and programs for
assessing the impact on water quality.
Ecology lacks a centralized location for permit files, which limits
availability to EPA and the public. Each regional office maintains permit
files within its own jurisdiction, except for those facilities covered by the
IS. To review a permit, one must know the region it is located in, and
then request that the regional office deliver the permit to a central area
for review.
II. C. 15
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Ecology lacks a central permit review to insure consistency in permits
between regions or conformance to guidance in the Permit Writer's
Manual.
As part of its oversight role, EPA reviews all of Ecology's major permits
when they are proposed for issuance or reissuance. Through comments
on draft permits, EPA often plays a significant role in enhancing
consistency in Ecology's permits. Minor permits, however, are not
reviewed by EPA.
Ecology lacks a permit tracking coordinator to track the status of permits
under development and to keep the public informed on the status of
particular permits of interest.
Mailing lists are not well-coordinated between similar permits, either on a
basin format or between regions.
Many of the permits reviewed did not identify the receiving water
according to the waterbody identification system, which is used to identify
water quality limited segments. Consequently, it was not evident when
permits were being issued on water quality limited segments. The
identification system used in older permits, the waterway segment
number, is not readily translated to waterbody identification numbers.
2. Permit Limits
EPA did not document backsliding in the permits reviewed. EPA
reviewed permits for compliance with the anti-backsliding provisions
found in Section 402(o) of the Water Quality Act of 1987 and the
implementing regulations found in 40 CFR 122.44(1). Reissued permits
that contained increased limits complied with anti-backsliding regulations
found in 40 CFR 122.44(1) and 122.62.
Some technology-based permits and fact sheets did not clearly
demonstrate that the discharge would not cause violations of WQS.
For technology-based permits where limits were increased in accordance
with effluent guidelines, Ecology has not adequately documented that
WQS will be met, even with the increased discharge. This type of
assurance is necessary to comply with the antidegradation provisions of
the CWA and state WQS.
II. C. 16
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One industrial permit with tiered limits did not contain provisions to
"ratchet back down" if production decreased within the permit term.
Ecology cites its permit condition to maintain adequate removal
efficiencies as a deterrent to excessive discharge.
For water quality limited segments, permit limits did not reflect application
of TMDLs based on a segment's loading capacity.
3. Permit Conditions and Monitoring Requirements
In the permits reviewed, designated mixing zones complied with the
state's Criteria for Sewage Works Design guidelines, or with the
proposed mixing zone standard. In our review, we did not document any
change in mixing zones that violated federal anti-backsliding
requirements.
Ecology typically includes acute and chronic toxicity testing requirements
in permits, as outlined in Ecology's interim biomonitoring policy. Permits
affected by recent settlements of permit appeals will establish toxicity
testing via Administrative Order.
Special studies have been included in Ecology permits to gather
information aimed at insuring compliance with WQS. These studies
include:
o dilution zone evaluation - to determine actual dilution instream, to
insure compliance with acute water quality criteria at the edge of
the zone of initial dilution, and to insure compliance with chronic
water quality criteria at the edge of the mixing zone.
o chemical analysis of the influent and effluent - to adequately
characterize the influent and effluent of the facility for conventional,
nonconventional, and priority pollutants, plus other pollutants of
concern, and determine removal rates within the treatment facility.
o baseline sediment monitoring - to determine baseline conditions in
the sediment around an outfall.
o acute and chronic sediment biomonitoring - to determine sediment
biotoxicity.
o chemical testing of sediment - to determine compliance with
sediment quality standards.
II. C. 17
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o benthic macroinvertebrate abundance - to determine ecological
health of the sediment infauna.
o particulate testing - protocol not yet developed, but may be a
powerful tool in measuring toxic constituents in wastewater and in
predicting ultimate behavior in the sediments.
The provision in municipal permits to maintain adequate capacity alerts
Ecology to upcoming treatment plant upgrades. Ecology can organize
this information to more effectively implement the state revolving fund
program.
Municipal permits contain appropriate sludge testing requirements and
reopener language consistent with EPA's interim sludge guidelines.
NPDES permits for cities with approved local pretreatment programs
contain pretreatment implementation requirements, such as influent,
effluent, and sludge sampling for toxic heavy metals and cyanide.
Additionally, two of the major municipal permits reviewed required the
treatment plants to sample for priority pollutants and to identify other
organic toxicants.
Some major industrial permits require the permittee to conduct pollutant
discharge reduction/elimination studies (pollution prevention).
Some permits require monitoring for "pollutants of concern." Identifying
"pollutants of concern" is a good step toward insuring control of other
toxic pollutants not appearing on the permit application. Coordination of
the "pollutants of concern" list with the Superfund "priority chemicals" list
helps assure control over chemicals implicated in historical discharges,
and insures that ongoing dischargers do not contribute to sediment
contamination.
Except for the limits in the technology-based acute salmonid bioassay,
Ecology has not incorporated whole effluent toxicity limits into permits.
Where toxicity is found at levels of concern, permits do not expressly
require toxicity identification and reduction evaluations. Rather, Ecology's
conditions are weak by simply requiring that permittees take steps
necessary to reduce toxicity, without any designated timeframe for
compliance with standards. In contrast, federal regulations
[40 CFR 122.44(d)] require that once toxicity is found at levels of
concern, toxicity limits be imposed that would be protective of WQS.
I. C. 18
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Ecology permits do not immediately impose chemical specific limits into
permits when there is a "reasonable potential" as defined in
40 CFR 122.44(d). As part of Ecology's required dilution zone study, the
permittee must compare effluent concentrations of pollutants at the
available dilution to WQS. If any of these parameters show potential to
exceed WQS, Ecology currently requires a plan to be submitted, much
like the conditions for whole effluent toxicity testing.
4. Fact Sheets
EPA notes that of the permits reviewed, Ecology's fact sheets have
improved since the last issuance. Some, but not all, of the fact sheets
reviewed analyzed the discharge and its impact on water quality. Fact
sheets contain the information regarding the data used (application
information, tentatively identified compounds (TIC data under the
Comprehensive Environmental Response and Compensation Liability Act,
other reports) and the assumptions used (dilution, acute and chronic
water quality criteria) to make this determination.
Most municipal permit fact sheets that EPA reviewed discussed the
derivation of effluent limits. Ecology calculated mass limits in one of two
ways: by multiplying the influent design load by 0.15 (85% removal), or
by multiplying the design flow and the effluent concentration limit, and
using a conversion factor to yield Ib/day. Ecology used the more
stringent of the numbers as limits.
Most industrial fact sheets showed Ecology's basis for calculating effluent
guidelines-based limits, by specifying the production rate and the
guideline used. For some permits, actual calculations were shown as an
appendix to the fact sheet.
Public commenters have expressed difficulty in interpreting and
understanding the technical information contained in fact sheets.
For some permits, the water quality analysis used only the acute water
quality criteria. Ecology needs to also use the chronic water quality
criteria and the human health criteria to evaluate the potential that a
discharge will violate WQS.
Ecology sometimes identifies pollutants of concern in permits. These are
identified as those found at levels exceeding one-half of the acute water
quality criteria. This is not an adequate screen because some pollutants
(e.g., arsenic, antimony) have chronic or human health effects at very low
concentrations. Chronic and human health criteria should also be used
in this screening step.
I. C. 19
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None of the municipal permits reviewed contained chemical-specific limits
based on WQS, with the exception of ammonia. Most municipal fact
sheets reviewed explained that there was no need for chemical specific
limits, but presented no analytical data to support such a statement.
AKART permits vary in quality. It is unclear as to the criteria Ecology
uses to determine AKART for a particular facility's discharge.
Permits require AKART for leachate, but AKART for leachate is undefined.
Ecology has not yet defined AKART for storm water.
5. Application Forms
Ecology correctly uses NPDES application forms 1, 2C, Standard
Form A, and Short Form A. EPA found the most recent application
form(s) for each facility in each file.
Applications for most facilities reviewed were submitted approximately
six months prior to permit expiration in compliance with federal
regulations. However, EPA found one facility that submitted an
application form after the expiration date of the previous permit (the
receipt of the application was sent to public notice).
None of the files reviewed indicated any notification to permittees
regarding the need to submit an application. The fact that most facilities'
applications were submitted six months before expiration indicates that
no reminder was necessary.
6. Public Notice
Every file reviewed documented public notice, which usually included the
newspaper clipping (original or copy) and an affidavit of publication.
Permittees are responsible for providing public notice, and must send
proof to Ecology. Some files contained letters from Ecology to the
permittee when proof of public notice was late.
Most of the industrial files reviewed included extensive mailing lists for
public notice. None of the municipal files reviewed included mailing lists.
Instead of announcing the "opportunity to request public hearing," most
newspaper notices stated that the Director "may hold a public hearing if
there is significant interest." In two cases, a date for a public hearing was
announced in the public notice for the draft permit. In one case, three
public notices were issued: receipt of application, draft permit, and
revised draft.
II. C. 20
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State regulations address public notice requirements for site specific as
well as general permits. Current interpretation of state regulations
requires that each permittee covered under a general permit would need
to be public noticed separately. This results in delays in permit issuance,
and reduces the benefits of using general permit authority.
7. Response to Comments
Of the permits reviewed, the formal Responses to Comments were
generally thoughtful and responsive to questions. It appears that
Ecology addressed all comments received, and the response format
clearly showed when changes were made to permits in response to a
certain comment. EPA could not confirm allegations that Ecology
disregarded public comments.
Permit changes resulting from public comments usually involved permit
conditions, like the scheduling of specific studies and monitoring
requirements. Although it is true that, in most cases, Ecology did not
change permit limits in response to comments, Ecology used its
professional judgment in developing permit limits.
Merit of Allegation
The petitioners charge that Ecology has been ineffective in instituting
appropriate toxics controls in permits. To support their claim, they have cited
instances of alleged backsliding, both in regard to permit limits and to mixing zone
delineation. Based on EPA's review of Ecology's permits, EPA does not find that
backsliding has occurred in violation of 40 CFR 122.44(1).
Allegations regarding weakened limits were generally directed toward industrial
facilities that projected increased production during the life of their permits. Because
EPA's technology-based effluent limitations allows for increased discharge with
increased production, reissued permits for these facilities contained higher limits. Such
increased discharge is allowable as long as the increased discharge will not violate
WQS.
For these technology-based permits, Ecology has taken a more stringent
approach than EPA regarding use of effluent guidelines for additional production.
Ecology's philosophy is that as a facility expands production, it should also expand its
treatment system to include new technology. Ecology's policy is to require that the
incremental production be held to New Source Performance Standards (NSPS), even
though the facilities in question are not new sources. This results in lower limits than
EPA might require. Ecology's approach has been upheld by the PCHB.
I. C. 21
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Of the permits reviewed, some industrial permits with increased limits contained
tiered limits based on incremental increases in production. In addition, they also
contained a clause requiring increased production to occur for three consecutive
months before the new tiered limits were applicable. This insures that overproduction
in one month would not trigger the higher limits, but that sustained production would.
A commenter at one of EPA's public workshops on the petition noted that
parameters that were limited in the expired permit were omitted from the new permit.
The commenter cited this as backsliding. Federal regulations allow deletion of
parameters if they are not specifically part of the promulgated effluent guidelines and
are not present in the effluent at levels that would have reasonable potential to cause
exceedences of WQS. Therefore, deletion of these parameters is not considered
backsliding. In this case, however, the omitted limits were parameters covered in the
effluent guidelines. This means that these parameters should have been limited, even
if they were typically found at in the effluent at levels below water quality criteria.
With regard to "backsliding" on size of mixing zones designated mixing zones in
permits reviewed complied with the state's Criteria for Sewage Works Design
guidelines or with the proposed mixing zone standard. In our review, we did not
document any change in mixing zones that violated federal requirements. EPA's
guidance on mixing zones, contained in the Technical Support Document for Water
Quality-Based Toxics Control, fully supports the concept of mixing zones. Ecology's
interpretation of its mixing zone policy, as contained in its proposed standard, complies
with federal guidance.
Although EPA did not find merit in the allegations regarding backsliding, EPA is
concerned about the timing and effectiveness of other aspects of the implementation
of the water quality-based permit program. While Ecology has made significant
progress in toxics control, EPA still has the following major areas of concern with
regard to toxics control in permits:
Limits must be imposed when there is reasonable potential to violate
WQS.
Ecology's interpretation of the "reasonable potential" provisions of
40 CFR 122.44(d) is too lax, and may be inconsistent with the federal
requirements. Where there is a reasonable potential to cause or
contribute to a violation of WQS, permit limits must be expeditiously
imposed that are protective of the standards.
EPA and Ecology have different approaches to findings of unacceptable
toxicity. Ecology requires the permittee to submit a plan for reducing
toxicity to acceptable levels, carry out the plan, and reassess toxicity
impacts before a limit is applied. EPA requires that upon finding
unacceptable toxicity as defined in 40 CFR §122.44(d), a limit should
immediately be imposed. EPA recommends that Ecology set an
II. C. 22
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appropriate timeframe through an enforcement mechanism (e.g.,
Administrative Order) for identifying the cause of the toxicity and working
on a solution. While the end result may ultimately be the same, EPA
believes that significant delays may result from Ecology's approach. EPA
will continue to work with Ecology on whole effluent toxicity limit
implementation.
Prior to issuing a permit, Ecology must determine that a discharge in
compliance with the permit will not cause violations of WQS.
Ecology must determine the impact of the discharge on the water column
(to meet both acute and chronic aquatic life criteria, and human health
criteria) and the sediments (to meet sediment quality criteria). In
particular, Ecology needs to ensure that permitting actions take into
account the total pollutant loading from all point and nonpoint sources.
For most dischargers, Ecology does individual discharge analyses using
application data, TIC data, and other available data, uses assumptions or
estimates about dilution, and compares the results to acute, and
sometimes chronic, aquatic life criteria. Ecology then requires the
permittee to conduct dilution studies to verify Ecology's assumptions in
its determination that the discharge would not violate WQS. EPA
disagrees with this approach. First, when Ecology issues a permit, it
certifies that the discharge will not violate WQS. It is incumbent upon
Ecology, prior to issuing an NPDES permit, to make the determination
that a discharge in compliance with a permit will not cause violations of
WQS. Second, in cases of multiple dischargers and multiple pollutants,
Ecology must consider cumulative effects of all dischargers to a
waterbody. Establishing loading capacities, and determining TMDLs,
wasteload allocations, and load allocations would greatly enhance permit
issuance in water quality limited segments.
With the new sediment standards, Ecology has an even more complex
role in NPDES permitting to ensure that the discharge will not violate
sediment standards. Ecology should consider establishing monitoring
requirements in NPDES permits to identify discharge "footprints," and
then develop appropriate action plans. In the future, Ecology should link
the effects of the discharge to the ultimate disposition in the sediment. It
can use conservative assumptions to model the effects and to provide
technical assurance that sediment standards will be met. Coordination
with the sediment management unit will enhance this effort.
Ecology requires permittees to submit individual plans for several types of
standard tests, which results in unacceptable delays in gathering data
and implementing appropriate pollution controls.
II. C. 23
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Ecology requires most major permittees to conduct dilution zone testing,
sediment monitoring, storm water testing, and so forth. Ecology requires
that the permittee submit a plan for testing, receive Ecology approval,
conduct the testing, and presumably then Ecology will decide on what, if
any, course of action to take. This lengthy process considerably delays
implementation of adequate water quality-based controls. Ecology incurs
an enormous workload from reviewing these plans for adequacy and
consistency. Ecology could streamline the process by assuming up-front
work of initially developing basic plans and sampling requirements,
outlining the protocols and frequency, and placing these requirements in
permits. Permittees could commence sampling sooner, and Ecology
could act upon the results in a more timely fashion.
In addition, Ecology should develop a Puget Sound-wide sediment
sampling program to insure that data collected by individual permittees
fits into a larger picture of the health of the Sound. Ecology should input
the data into an overall sediment database.
Ecology does not adequately address antidegradation requirements in
permits with increased discharges.
Permits need to clearly state whether increased limits are included in the
permits, the rationale for including them, and a rigorous water quality
determination to insure that water quality is not degraded. All of the
elements of the antidegradation policy should be included in this
determination.
Industrial permits with tiered limits should also be ratcheted down when
production decreases during the life of the permit. This would meet the
antidegradation provisions of the CWA.
EPA's recommendations for improving Ecology's permit program are broader
than individually addressing the concerns contained above. In making these
recommendations, EPA looked beyond the boundaries that currently define the
permitting program, and included cross-media and cross-programmatic issues.
In making recommendations, EPA recognizes that, in response to the Efficiency
Commission report and the PSWQMP, Ecology has existing commitments for
improvement. EPA has briefly described these in Appendix ll-C-4.
Address EPA's specific areas of concern regarding permit quality, as
described above.
Create central review and coordination of permits
As water quality issues become more complex, central permit review and
II. C. 24
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coordination becomes imperative. Central review would help in focusing
resources on permitting priorities and provide needed quality control.
Prioritizing permit issuance by watershed would lead to a more
environmentally-based approach to watershed management, and would
naturally include implementation of TMDLs. Ecology should consider
integrating such an approach into permit management.
Coordination between all eight work units and three programs that write
NPDES permits - four regional offices, two UBAT [under the Toxics
Cleanup Program (TCP)], Central Programs (IS) and the headquarters
WQP - would be vital to insure consistent quality in Ecology permits.
However, it is unclear how each group establishes its workload, and
whether active coordination exists between groups to solve mutual
problems. For example, EPA understood that, the IS is responsible for
aluminum smelter, oil refinery, and pulp and paper permits to insure
consistency for the major industries. However, the Eastern Regional
Office wrote the Ponderay Newsprint, Inland Empire Paper, and
Kaiser-Trentwood (aluminum) permits. EPA found no formal coordination
with the IS on appropriate permit conditions.
An example of differing agendas is evident in the permitting of facilities
discharging to Commencement Bay. The IS is ostensibly responsible for
the major and minor aluminum, refinery, and paper industry permits, and
these are permitted, by industrial category, as they expire. The UBAT is
responsible for major and minor permits discharging to the priority
waterways outlined in the Superfund Record of Decision (ROD). Its
permit scheduling is based on source control schedules outlined in the
ROD and updated through the annual cooperative agreement with EPA.
The Southwest Regional Office Water Quality Section is responsible for
the municipalities and industries, major and minor, outside of the IS, that
discharge to the non-priority waterways and to the bulk of
Commencement Bay. Their schedule is dictated by permit expiration.
Storm water permits, are on a completely different schedule dictated in
part by development of federal regulations, and the group responsible for
writing them has yet to be determined. For one water quality limited
segment, there are three to four different groups responsible for permit
writing, with no overall coordination to insure consistency between
permits. The watershed or basin approach with centralized review may
be most appropriate for this situation.
Centralized permit review would include program planning, priority
setting, cross program coordination, and semi-annual or annual review of
all permitting groups to insure consistent quality and inclusion of
necessary water quality-based controls in permits.
I. C. 25
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Create Integrated Standards-to-Permits Planning Process (as part of
Central Review and Coordination function)
The Efficiency Commission recognized that cross-program integration is
critical to running an effective water quality-based toxics control program.
Waterbodies are not isolated environments, but are affected by various
activities within their watersheds, such as municipal, industrial,
agricultural, and silvicultural activities, and diffuse, storm water flows. In
addition, a wider range of pollutants needs to be considered
(e.g., metals, organics, pesticides, sediment loads, and bacteria).
Ecology should develop a planning process that links WQP activities with
the EILS group, regional offices, and the TCP. This process should be
used to plan in advance of permit issuance, prioritize water quality limited
areas for permitting, and insure implementation of water quality-based
controls in permits and nonpoint source control plans.
Consider centralization of NPDES permit writing
With eight units responsible for permit writing, critical permit writing
expertise is spread too thin. Expertise in permit writing takes some time
to acquire. Differing viewpoints and levels of experience in various offices
may result in conflicting approaches to similar issues. Although our
review did not reveal glaring errors between regional approaches to
permit writing, EPA recommends that Ecology consider consolidating
permit writing within a smaller band of highly experienced people who
consult on a regular basis.
Centralization of the permit managers would help reduce duplication of
expertise throughout the agency. Because permits have become much
more technical, it would be more efficient to have a highly-trained group
of permit managers whose job description focuses on issuing and
maintaining legally-defensible permits. Resources in the regional offices
could be freed up for more hands-on inspection, enforcement, and
"environmental presence" work. To assist the centralized group of permit
managers, a technical service group could be charged with reviewing all
the plans and studies that are required in recently issued permits. Not
only would this approach insure consistent treatment of permittees, it
would also be more efficient for data evaluation and compilation.
Individual permit managers can be apprised of the results to assist them
in decisions regarding particular permittees.
I. C. 26
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EPA acknowledges that centralization of permit writers would, however,
pose many difficult problems for Ecology. Physically moving staff
members from the field offices would be disruptive for the individuals and
expensive to the agency. Ecology may want to evaluate the possibility of
shifting the lines of accountability/supervision from the field office to a
central location. As vacancies occur, Ecology could evaluate the
possibility of moving the position to the central office.
Corrective Actions
o Ecology must ensure that permit provisions are consistent with federal
regulations regarding development of effluent limitations where there is
reasonable potential for toxic effects.
o Ecology should develop both an integrated standards-to-permits and watershed
management approach to permit issuance.
o Ecology should provide sufficient documentation in the permit record to assure
that a permitted discharge will assure attainment and maintenance of WQS.
o Ecology should assure the implementation of whole effluent toxicity controls,
including the use of toxicity identification and toxicity reduction evaluations.
o Ecology should standardize plans and sampling requirements for various types
of tests, rather than requiring the permittee to prepare and submit individual
plans to Ecology for approval.
o Ecology should provide increased central oversight of regional priority setting
and permit quality.
II. C. 27
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D. BACKLOG QF NPDES PERMITS AND UNPERMITTED DISCHARGES
ALLEGATION: THE LARGE NUMBER OF UNPERMITTED DISCHARGERS AND
EXPIRED PERMITS REVEALS A FAILURE TO ISSUE NPDES PERMITS AND EXERCISE
CONTROL OVER REGULATED ACTIVITIES, AND, AS REQUIRED BY THE
MEMORANDUM OF AGREEMENT, ECOLOGY HAS NOT ISSUED, REISSUED, OR
MODIFIED IN A TIMELY MANNER ALL NPDES PERMITS.
Method of Investigation
EPA's review focused on three major areas: (1) quantifying the number of
backlogged (expired) permits; (2) reviewing Ecology's progress in bringing currently
unpermitted dischargers under regulatory control; and (3) researching the
management, organizational, planning, and human resource issues that may contribute
to this alleged failure in permitting. The sources of information for this portion of the
review are: (1) interviews of Ecology personnel; (2) Ecology and EPA file information;
and, (3) petitioner and public comment materials.
To determine the actual extent of the backlog in Washington, EPA reviewed data
in EPA's permit compliance system (PCS) regarding numbers of expired NPDES
permits in Washington. Using the national PCS data, EPA compared the number of
backlogged permits in Washington to comparable numbers for the other delegated
states. EPA, in interviews with Ecology personnel, sought to determine how Ecology
sets priorities for permit issuance.
Because it is inherently infeasible to track actual numbers of unpermitted
dischargers, EPA relied primarily on interviews with Ecology personnel regarding
numbers of unpermitted dischargers and Ecology's policy for discovering and
controlling them. EPA does not have national guidance for dealing with unpermitted
dischargers.
Findings
Background
1. Backlog of Expired Permits
Ecology's WQP manages approximately 900 NPDES and 390 non-NPDES state
permits, for a total of 1290 permits. NPDES permits include individual permits for
industries and municipalities, and a general permit for upland finfish facilities.
Non-NPDES permits fall into two major categories: (1) discharges to groundwater;
and (2) discharges from industrial users (IDs) into POTWs. EPA's review focused only
on NPDES permits.
II. D. 1
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Because Ecology has not assumed federal facilities permitting authority or
permitting on Indian lands, EPA issues NPDES permits to the federal facilities and
facilities on Indian lands in Washington. EPA did not review the backlog for these
categories of permits.
Ecology categorizes NPDES permits into majors, significant minors, and minor
permits. This distinction is primarily for purposes of prioritization and effective focus of
resources. Major industrial permits are designated through a rating system, based on
potential environmental impact. Significant minors are those permits that did not rate
as major, but are distinguished from the rest of the minors based upon factors such as
public health concern, toxics, and compliance problems. Of Ecology's 900 NPDES
permits, 93 are rated as major (six are federal facilities and Indian facilities issued by
EPA), and 161 are "significant" minors.
Ecology first directs its resources at major permits and then toward significant
minors, in accordance with EPA policy. While the goal is to eliminate the backlog of
expired NPDES permits, as a practical matter, EPA understands that a minimal level of
expired permits is to be expected (although discouraged). By focusing on these two
categories of permits, Ecology and EPA are assured that dischargers with the most
significant environmental impact are evaluated on a regular basis.
Backlogged expired permits remain in effect. Washington law, similar to the
Federal Administrative Procedure Act and 40 CFR s 122.6, provides for continued
effectiveness of expired permits if the discharger submits a timely and complete permit
application but Ecology fails to reissue the permit through no fault of the discharger.
[The NPDES regulations at 40 CFR §122.6(d) allow, but do not require, authorized
NPDES states to have a similar provision.] In the case where a facility is discharging
under an expired minor permit, all provisions of the expired permit remain in effect,
including provisions requiring the facility to maintain compliance with the permit and to
continue to submit monitoring information. In addition, enforcement mechanisms are
still available with regard to expired, administratively-continued permits. At any time,
EPA or an authorized state may reissue expired permits as resources allow.
2. Unpermitted Discharges
Ecology staff have estimated in a report that there are over 20,000 dischargers
without either NPDES or state permits. However, this figure is misleading because it
includes unqualified non-NPDES state permits for discharges to groundwater and
indirect discharges to POTWs. Many of the unpermitted discharges subject to NPDES
requirements are storm water discharges, for which federal regulations were recently
published. Ecology plans to permit these and other large categories of dischargers
through general or model permits. Several thousand discharge sources will then be
covered under general or model permits, now under development, for feedlots,
boatyards, and storm water. Ecology recently completed a model permit for upland
finfish facilities.
II. D. 2
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General permits are usually developed for types of industries or dischargers
where the discharge is similar in quality from one source to the next. Although permit
conditions are by definition less site-specific than for individual permits, general permits
provide a suitable regulatory framework and expectation for compliance for a large
number of similar dischargers. Approximately 1300 commercial dairies and 500-600
boatyards, throughout the state would be covered under proposed state general
permits.
Ecology's storm water program recently released a storm water management
manual for public comment. This manual, developed in response to the 1991
PSWQMP, sets minimum technical requirements for storm water control. It contains
extensive technical information on best management practices that may be appropriate
in implementing storm water management plans through general permits.
Ecology has taken a strong stand on controlling CSOs. Ecology's 1987 CSO
regulation (WAC 173-245) requires, "All CSO sites shall achieve and at least maintain
the greatest reasonable reduction," defined as control of each CSO such that an
average of one untreated discharge may occur per year. All municipalities are
required to submit CSO reduction plans and incorporate them into their respective
general sewer plans. We note that Ecology established its own strategy before
issuance of the National CSO Strategy. EPA has concurred on Ecology's strategy.
3. Management. Organization. Planning, and Human Resource Issues
Much of the petition and several public comments expressed concern about the
management and organization of Ecology's NPDES functions. Ecology's
organizational structure has often been the focal point for allegations regarding
inefficiencies in issuing permits, lapsed schedules for outputs (notably the permit
writers' manual) and lack of coordination. Since these were recurring themes during
the public workshops, EPA spent a significant portion of its time during the August
audit discussing these issues with Ecology management and staff.
Ecology's organizational chart is contained in Appendix ll-D-2. Organizational
units relevant to this discussion include: the Headquarters Point Source Section, the
IS, Environmental Investigations and Lab Services (EILS), the regional office WOP and
the UBATs.
Role of the Headquarters Point Source Section. The Point Source
Section is responsible for NPDES program development. Three units
operate in the Point Source Section: (1) CSOs, storm water and
municipal unit, (2) fee unit, and (3) regulatory unit. The regulatory unit
provides general NPDES guidance (including permit writers' and
inspectors' manuals), develops regulations, writes general permits, and
provides pretreatment coordination. At the time of the audit in August
1991, the regulatory unit staff included two environmental specialists, two
engineers, and one person responsible for training permit writers.
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Role of the Industrial Section. The IS manages permits statewide for
three specific industrial categories: pulp and paper, oil refineries, and
aluminum smelters. In addition to NPDES permitting, these same permit
managers are responsible for cross-program work for these industries,
including Resource Conservation Recovery Act (RCRA) and air
compliance. The IS reports to the Director of Ecology through the
Central Programs Office.
Role of the Environmental Investigation and Lab Services Program. EILS
is responsible for scientific support and lab work in association with
permitting and TMDL issues. EILS is housed in the Central Programs
Office.
Role of the Regional Office Water Quality Program. Regional offices are
responsible for permit management for those facilities that are not
covered by the IS.
Role of the Urban Bay Action Team. The UBATs were originally created
to focus resources on cleaning up specific urban bays. UBATs are run
by "matrix management." Their role is to work on permitting, inspection,
and compliance across all media for those sources of pollutants within
designated urban bay areas. They have been particularly successful in
storm water pollution abatement. UBATs themselves face a number of
competing priorities. With Superfund, RCRA, air, and water
responsibilities, UBATs set their own priorities regarding NPDES permit
issuance.
Merit of Allegation
1. Backlog of Expired Permits
Backlog figures for Washington, as of September 30, 1991, are listed in the
table below. The table compares the backlog rate (percentage) of NPDES permits for
Washington to other states with NPDES permitting authority. However, Washington's
figures are not directly comparable those of other authorized states because many
other states issue permits for federal facilities. See Appendix ll-D-1 for a state-by-state
summary.
I. D. 4
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Percent Expired
WA1 States' EPA3 WA Ranking*
Majors
Municipal 11 18 10 16/39
Industrial 15 26 11 17/39
Minors
Municipal 71 25 28 38/39
Industrial 84 36 53 39/39
[Note: As of October 31, 1991, Washington's backlog was reduced to a total of
nine major permits out of a total of 93 (five out of 48 industrial and four out of 45
municipal) and 592 minor permits.]
See Appendix ll-D-2 for State Performance Compared with Other Authorized
States.
In the 1990 MOA, Ecology agreed to reissue all expiring NPDES permits on or
before the date of expiration; however, the MOA also indicates that if reissuance is not
possible before expiration, EPA and Ecology will agree on priorities for reissuance. In
the federal fiscal year 1991, Ecology agreed to reissue 21 major industrial and six
major municipal permits, and 66 minor permits. Ecology issued 18 out of the 21
industrial permits, four of the six municipal permits, and 28 minor NPDES permits in
FY91.
These data indicate that Ecology has a comparatively low backlog of expired
major NPDES permits. None of the major industrial permits representing the main
industrial categories in Washington (pulp and paper, oil refineries, and aluminum
smelters) is backlogged. However, Ecology has a comparatively significant backlog of
minor permits.
1 Percent for Washington NPDES permits (state- and EPA-
issued.)
2 Average for permits in all 39 NPDES states (state- and
EPA-issued.)
3 Average for permits in 12 states and 6 Territories where
EPA is primary authority.
4 Ranking represents the relative level of expired permit
numbers among the 39 authorized states; a lower number is better.
II. D. 5
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Ecology is not focusing resources on eliminating the minor permit backlog. The
State contends that managing the current workload of major and significant minor
permits, including permit issuance, compliance monitoring, and review of the special
study requirements, consumes all of Ecology's available permitting resources.
Although Ecology has a backlog of permits, the number of backlogged major
permits, representing the dischargers with the greatest environmental significance,
does not support the allegation that Ecology has failed to exercise control over
regulated activities. Ecology's percentage of backlogged majors is about ten percent.
EPA is more concerned about the large number of expired minor permits and other
unpermitted dischargers. Ecology's intended use of general and model permits, along
with selective enforcement, would assist in alleviating this backlog. Ecology needs to
develop a strategy for significantly reducing the minor permit backlog and develop a
plan for identifying unpermitted discharges. Ecology should provide EPA with this
information along with schedules and milestones and implement the strategy. EPA will
monitor Ecology's progress toward permit issuance commitments through the SEA
process.
2. Unpermitted Discharges
Discovery and permitting of unpermitted discharges, other than those described
above, has been a relatively low Ecology priority; therefore, many unpermitted
discharges currently exist. Ecology does not have a standard procedure or aggressive
program for identifying of unpermitted discharges. According to staff, Ecology
identifies unpermitted dischargers largely through field inspections, reconnaissance
sampling for TMDLs, citizen complaints, and UBAT surveys. Once identified, these
discharges are handled case-by-case, based upon their environmental significance. In
some instances, Ecology inspectors have been successful, during on-site visits in
convincing facilities to cease these minor discharges. Based on their experience in
these informal discoveries of unpermitted discharges, state staff believe that few
individual discharges of any real environmental significance remain undetected.
EPA tracks the number of unpermitted dischargers that submit applications but
have never been issued a permit. In Washington, there are 39 such facilities
(excluding federal and Tribal facilities).
Storm water discharges account for a large percentage of unpermitted
dischargers. Ecology is currently determining how to organizationally implement the
storm water program and is deciding programmatic issues, such as use of group
applications. A general storm water permit, that will implement technical information
contained in the storm water manual is under development. Ecology indicates that the
general permit will be the main vehicle for storm water control. Site-specific storm
water controls already exist in some industrial permits. A model permit for storm water
discharges from wood treaters is also under development. Ecology plans to conduct
II. D. 6
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public outreach activities regarding storm water, and is preparing fact sheets and flyers
for public distribution. Based on these positive steps toward control of storm water,
EPA believes that Ecology is committed to implementing the storm water program,
which would thereby substantially the number of unpermitted discharges.
Ecology faces a large number of unpermitted dischargers. However, many of
these may be covered under Ecology's pending general permits for storm water,
dairies, and boatyards, issued upland finfish general permit, and Ecology's model
permits for apple packers and storm water from woodtreaters. Ecology should
develop and implement a strategy to discover, evaluate and permit currently
unpermitted dischargers, as identified in the PSWQMP.
3. Management. Organization. Planning, and Human Resource Issues
With regard to management and organization, the petitioners alleged that
insufficient Ecology headquarters oversight results in a lack of consistency and
accountability in the state's NPDES program. EPA found that Headquarters WQP has
a five-day review period for all permits. However, this review period is provided
primarily for calculation and recovery of permit costs and does not include technical
reviews for consistency.
Ecology's NPDES permits program is not centrally managed. Managing NPDES
permits falls to eight different permitting groups representing the four regional offices
[Northwest Regional Office - Redmond, Southwest Regional Office - Tumwater, Central
Regional Office - Yakima, and Eastern Regional Office - Spokane), two UBATs
(contained in the Northwest Regional Office and Southwest Regional Office, under the
TCP), the IS, and the Headquarters office. Each office keeps its own permit records
and files. These various permitting groups report to the Director of Ecology through
different chains of command. Therefore, there is no focal point for permit review,
enforcement, or oversight. Quality assurance and control are intended to be achieved
solely from informal peer review within the permitting groups and occasional
discretionary Headquarters review. The lack of a system to ensure communication
and information sharing in technical approaches and policy matters results in an
inconsistent permit program lacking overall managerial accountability.
The path of signature authority reveals problems inherent in the underlying
review process. Ecology's NPDES permits are signed by different permitting groups.
IS permits are routed to the IS Supervisor for signature. Permits issued from regional
offices, except the UBAT permits, bear the Water Quality Section Supervisor's
signature. UBAT permits have the TCP Supervisor's signature.
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Regional offices occasionally contact Headquarters for assistance regarding
permitting issues. However, these requests sometimes occur after the permit has
been issued and the permittee is contesting the permit. There is an ad-hoc
Headquarters group that provides technical assistance upon request. In the Puget
Sound area, UBATs review permits for urban bays. Work is intended to be
apportioned between the regional offices and UBATs. However, WQP staff mentioned
that they were unclear as to how this occurs or how priorities are set between them.
Organizationally, the WQP Manager is directly responsible for implementing the
NPDES program. UBAT leaders, however, report to the TCP Manager without any
formal coordination with the WQP. The IS reports to the Central Programs Manager.
Therefore, a sizable number of major permits are issued without formal coordination
with the WQP Manager.
Ecology's lack of strategic planning emerged as a major issue in the Efficiency
Commission Report. Ecology recognizes the need for more effective strategic
planning. State staff indicate there is an acknowledged lack of up-front policy, which is
recognized as a necessary program planning prerequisite among Ecology managers.
The perception is that the system sets some clear programmatic priorities but is
perhaps not effectively accounting for unexpected outlier events, such as legal
challenges and unexpected legislative interventions.
Ecology's management and the Efficiency Commission report indicated that the
real issue for Ecology is whether the priority judgment calls are correctly made. State
staff believe the answer to this issue is to increase efficiency through implementation of
the Efficiency Commission recommendations, to seek enhanced funding, and to make
defensible priority calls, perhaps by increasing public involvement in the strategic
planning process.
The Efficiency Commission Report did not address organizational efficiency
because Ecology had recently reorganized. In discussions with Ecology management
during the review, Ecology stated that the definition of roles, responsibilities, and
functions is more important to examine than organizational structure. The Point
Source Section Chief indicated he has been asked to define these roles to ensure
effective tracking and consistency. Ecology staff indicated that the Department intends
to increase Headquarters oversight of regional offices, especially on several common
themes such as enforcement and inspection targets. In addition to the acknowledged
need to define roles, the permit program faces cross-agency challenges to work
effectively with other agenda-setting agencies, such as the Authority.
Human resource issues, including retention of experienced permit managers,
are problematic for Ecology. Ecology considers staff training to be of utmost
importance. Training for permit writers is a continuing process. Ecology has
developed and conducted successful training courses in conjunction with its
development of the Permit Writers' Manual. The training program for permits
personnel is currently being improved. Ecology requires a training plan as part of
each employee's yearly performance evaluation process. Employees are notified of
II. D. 8
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in-house and outside training as information becomes available. The position of
"trainer" exists in the Point Source Section, but was not yet filled at the time of this
report. This position develops training opportunities for all NPDES components of
Ecology and is currently being reformulated. EPA sponsored training for permit writers
has always been well-attended by Ecology staff.
The Efficiency Commission called for permits manager training including
rotations, investigation experience, formal training, and so forth. Ecology is developing
a preliminary strategy. Training costs were formerly targeted at 1% of employee
salary. Now, however, the focus is on meeting training needs, and not a salary
percentage. Ecology management indicated that training will be somewhat
standardized by position and placed in its overall workload model. The goal is
quarterly training for staff. In October 1991, Ecology anticipated scheduling inspector
safety and water quality-based permitting training.
EPA believes that the WQP should conduct annual evaluations of the various
permitting units (regional office/UBAT/IS) to assure consistency and help anticipate
and correct problems. Other recommendations for improved organization in the
enforcement and pretreatment programs are discussed in the following sections.
Corrective Actions
o Ecology should commit to and carry out a strategy to ensure unpermitted and
minor discharges are permitted in a timely fashion.
o Ecology should issue general permits, where appropriate, to increase program
efficiency, and ensure that individual dischargers covered under the general
permit are not required to provide individual public notices.
I. D. 9
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E. ENFORCEMENT REVIEW
ALLEGATION: THE STATE HAS FAILED TO TAKE ADEQUATE AND TIMELY
ENFORCEMENT ACTIONS, TO SEEK AND COLLECT ADEQUATE PENALTIES, AND TO
ACT ON VIOLATIONS OF PERMITS.
Method of Investigation
EPA in its oversight role routinely evaluates Ecology's enforcement program to
determine whether Ecology takes timely and appropriate enforcement action. In
response to the petition, to determine whether Ecology has failed to adequately assess
and collect penalties in enforcement actions, EPA reviewed Ecology's enforcement
policies, Ecology's implementation of those policies, and compared Ecology's
implementation with EPA's regulatory standard. During this investigation, EPA
interviewed key Ecology staff and management and conducted an independent review
of Ecology's compliance and enforcement files.
The files that were reviewed during this audit of Ecology's enforcement program
are listed below. This list includes those files specifically identified by the petitioners.
Facility Name
Kaiser Aluminum
Kalama Chemicals
Longview Fibre
Pendleton Woolen Mills
Simpson, Tacoma Kraft
Scott Paper
City of Tacoma
Texaco USA
US Oil & Refining
City of Vancouver
Permit No.
WA-000087-6
WA-000093-1
WA-000028-1
WA-000007-8
WA-000023-0
WA-000085-0
WA-000062-1
WA-003708-7
WA-003721-4
WA-000294-1
WA-000178-3
WA-002345-0
WA-002436-8
Weyerhaeuser, Cosmopolis WA-000080-9
I. E. 1
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Weyerhaeuser, Longview WA-000012-4
Findings
EPA Oversight of Ecology's Program
EPA's regulatory standard for penalty amounts is as follows: Ecology's
judgments or settlement against violators cannot result in penalty amounts that EPA
believes to be substantially inadequate in comparison to those which EPA would
require under similar facts. The merits of the allegation were evaluated on this basis.
Ecology exercises its enforcement discretion in deciding the best use of staff
time, violations to pursue, and the manner in which to pursue them. To insure that
Ecology is fulfilling its obligations as the primary permitting and enforcement authority,
EPA oversees Ecology's performance. Should Ecology fail to carry out its obligations,
EPA, after proper notification, may independently initiate a federal action. Citizens may
institute a citizen suit against EPA, the state, or the permittee pursuant to
Section 505(a) of the CWA. Through the WOO, EPA maintains a close working
relationship with Ecology. The partnership benefits both agencies since information
concerning state program functions is readily available to EPA.
Ecology's Enforcement Manual
An effective enforcement program should have a clear process for reviewing
information submitted by the regulated community and a standard decision path for
instances of non-compliance. To accomplish this, Ecology has developed its
Enforcement Manual: Guidance and Procedures (July 1990). Based on a review of
this document, EPA concludes that, on a programmatic level, Ecology's enforcement
decision path for initiation, tracking, and reviewing compliance is adequate.
Ecology's Penalty Policy
Ecology's penalty policy sets forth a matrix relationship of severity of violation to
proposed penalty amount. The Enforcement Manual establishes a four-step penalty
escalation process. Program-specific guidance establishes criteria to categorize
violations into three basic groups:
critical violations that involve an actual or imminent threat to public health
or the environment;
serious violations that involve a potential threat to public health or
impacts on significant surface or ground water resources; and
I. E. 2
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general violations such as illegal discharges which do not significantly
threaten water quality, public health, or aquatic resources; effluent
violations which marginally exceed permit limitations; or other minor
permit violations. Repetition or continuation of violations will generally
warrant an escalated enforcement response. Of all the violations that
Ecology responds to, most permit violations fall within this third category.
Ecology's penalty policy sets forth mandatory minimum penalties based on the
severity of the violations. A critical violation, categorized as Class I, is a discharge or
permit violation, oil spill, or other material spill creating actual or imminent threat to
public health or the environment. A repetition or continuation of serious violations or
non-compliance with a formal action is also classified as a critical violation. The
minimum penalty for a critical violation is $2,000. A serious violation, categorized as
Class II, is a discharge or permit violation, oil spill, or other national spill "with potential
to impact public health or impact surface or ground water resources." The minimum
penalty for a Class II violation is $1,000. A General Class III violation is "any violation
which does not create an actual or imminent threat to public health to or to surface or
ground water resource." The minimum penalty for a general violation is $1,000. EPA
finds that Ecology's policies are clearly and concisely set forth in guidance and are
generally adhered to by the regional offices.
However, except for penalty amounts, noncomplying facilities incur no further
economic liability for remaining out of compliance. EPA is concerned that Ecology's
penalty policy only determines minimum penalties based on the severity of the violation
and does not routinely seek to recover costs related to the economic benefit to the
company gained from non-compliance. For example, a company may continuously or
sporadically be out of compliance for parameter X. To fully correct the situation, the
facility may have to make a capital investment of $1 million. The facility may choose
not to make the capital investment, and continue to be out of compliance, because the
penalty amount for each instance of non-compliance is nominal. EPA contends that
the economic benefit of non-compliance (i.e., the $1 million) should be factored into
the assessed penalty amount. EPA has established procedures to calculate the
economic benefit, and this should be integrated into Ecology's enforcement manual.
Ecology's Mitigation Policy
Many Ecology penalty actions originally assessed are reduced either through
negotiations or through mitigation. For the period between 1985 and 1990, 21% of
Ecology's total assessed penalties were mitigated at various stages. Most of these
reductions were pursuant to Ecology's mitigation policy. (Source: Enforcement
Trends: April-June 1991)
Ecology has a broad mitigation policy, which in many cases results in penalty
reduction. Mitigation, described in the policy as "innovative settlement," is only
available in cases where the respondent has filed for an application for relief. In
practice, however, penalties are apparently mitigated even if the application for relief
was denied. In fact, the form letter the IS uses to deny applications for relief also
II. E. 3
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extends an opportunity to the permittee to mitigate the penalty. Consequently, the
collected penalty is often lower than the proposed amount because Ecology mitigates
penalties for many different reasons.
EPA finds that the innovative settlement policy encourages implementation of
pollution prevention and other initiatives. However, EPA is concerned that Ecology
may be implementing the mitigation policy without adequate rationale. Ecology may
look to the mitigation policy as a way to quickly settle cases. In addition, in its
evaluation of penalty amounts, EPA noted that Ecology does not have standard
penalty worksheet which is included in the record and shows how the penalty figure
was determined.
Ecology should limit unwarranted penalty reductions. Mitigation of the penalty
should occur in the absence of new information and should not be used as a means
to quickly settle a case.
Ecology's Enforcement Tracking and Information Retrieval System
With regard to enforcement tracking and information retrievals, EPA found that
existing Ecology data systems are inadequate. An effective enforcement program
should have a clear process for reviewing information and tracking the status of
enforcement actions.
Ecology lacks (and did not expect to have in the near future) a central data
system capable of storing and retrieving compliance information (e.g., facility level
information, compliance schedules, and enforcement history). Each staff member from
various field offices manually tracks the permit or Order requirements. Ecology should
use a computerized data base as a source inventory/enforcement tracking system.
Ecology has a Central Enforcement unit used by programs in all media. This
enforcement section uses an enforcement action informational data system (run on a
personal computer) on which it stores information associated with enforcement actions
(such as penalties and Administrative Orders). The enforcement section publishes a
trends report on a quarterly basis. However, information necessary to update the data
base is not required to be provided to the enforcement section by the various field
offices. Meaningful information retrievals can only occur if the field offices have
provided the most current enforcement information. This does not always happen.
Without a mandatory central enforcement data system that is fully supported by
management, Ecology is presently unable to rapidly and effectively respond to public
or internal inquiries for information. This inability, coupled with manual enforcement
tracking, frustrates requests for statewide information. The requester must acquire and
piece together responses from each field office.
Due to Ecology's inability to determine statewide compliance activity, EPA's
WOO provides a list of permittees in Significant Non-Compliance (SNC) to the state
and warns Ecology that EPA may take action in 30 days if the state fails to do so.
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Without the assistance of WOO, Ecology would not have the ability to view statewide
non-compliance, nor would it be able to fulfill its reporting obligation to EPA under
40 CFRs 123.45.
Pollution Control Hearings Board
A permittee has two opportunities to administratively appeal a penalty action.
First, an application for relief can be filed directly with Ecology; however, the applicant
must provide new information about the case. The second alternative is for the
permittee to appeal directly to an independent PCHB. The PCHB is an autonomous
body which hears appeals of permit conditions and administrative enforcement actions.
EPA's review of the files did not uncover significant reductions of penalties by
the PCHB. However, the PCHB significantly impacts the time involved in deciding or
settling cases. The PCHB could enhance public participation in settlement negotiation
processes by providing interested parties timely access to information on cases before
the Board. v
EPA found that an appeal to the PCHB greatly delays finalizing penalty actions.
The PCHB takes between nine months and one year to reach a decision on a case. In
addition, the appeals system creates somewhat of an incentive to appeal either with
Ecology or to the PCHB. When a permittee appeals an action to the Board, permit
conditions are stayed indefinitely pending a decision by the Board. The permittee
incurs no cost either in time or money, and the PCHB may not hear a case for a year
after the appeal is filed.
In general, because the PCHB is a separate entity, it does neither provides nor
is required to provide, adequate access to information, notice to interested parties on
the status of appeals, or records of decisions for final cases. Interested parties may
intervene once an action is appealed to the PCHB. However, intervenors often
experience difficulty in obtaining information about the case once it has been appealed
to the Board. Many of the files reviewed lacked any information on the status of a
case once it reached the PCHB.
Administrative Order Activity
In general, Ecology issues many more Administrative Penalth Orders (APO) than
Administrative Orders. Ecology seeks monetary penalties through use of APO.
Ecology uses Administrative Orders to seek compliance in those instances that may be
considered "routine non-compliance," such as a permittee's failure to notify of a late
report. State judicial actions are used in only those instances of more egregious
non-compliance.
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Staffing
In FY93, Ecology anticipates that it will increase its number of water compliance
positions. Ecology currently plans to add four enforcement positions in the Puget
Sound area and one each in the Spokane and Yakima Regional Offices. These
positions are a step in the right direction but their effectiveness is questionable without
an enforcement coordinating office.
Example Review: Longview Fibre
EPA reviewed 15 compliance files in response to the petition. The type of
information that EPA looked for and the basis for EPA's conclusions, is exemplified in
the following case study for Longview Fibre.
The petitioners, in comments submitted September 15, 1991, voiced concerns
regarding the enforcement status of the Longview Fibre Company, Longview,
Washington (WA-000007-8) NPDES permit. The audit team evaluated the validity of
these allegations. Petitioners observe that under federal law, Longview Fibre was
statutorily liable for civil penalties of $5.3 million, but Ecology assessed and collected
only $50,000.
EPA has established criteria for non-compliance reporting in the NPDES
program at 40 CFR Part 123. This rule specifies criteria for determining significant
violations, and include criteria related to the magnitude and duration of the violation.
The magnitude and frequency of application of both of these criteria to the Longview
Fibre case would not qualify Longview Fibre in the Significant Non-Complier category.
Its 5% to 9% violations of total suspended solids fall well below the 40% magnitude
criteria set forth in the regulations. The sporadic nature of the violations also did not
occur for a significant duration under the criteria. Accordingly, Longview Fibre
Company would not be included EPA's statutorily-mandated Quarterly
Non-Compliance Report. Accordingly, Ecology's levied penalty was not substantially
inadequate in comparison to amounts that EPA would require under similar facts.
In the review of the DMRs submitted by the company to Ecology, the company
provided an explanation for each instance of non-compliance and proposed a CAP.
The Audit Team concludes that Ecology did not violate federal regulations in its
enforcement response to violations occurring at Longview Fibre Company.
Merit of Allegation
The petitioners allege that Washington has failed to take adequate and timely
enforcement actions. EPA found that Ecology takes enforcement actions against
violators in a manner consistent with its enforcement policy. It is true that Ecology has
broad discretion for implementing its enforcement policy. However, EPA notes that
when EPA has recommended action through a Federal Notice of Violation, Ecology
I.E. 6
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has appropriately followed up with a state enforcement action. Therefore, EPA finds
that Ecology takes enforcement actions consistent with the discretion allowed within a
delegated NPDES program.
The petitioners allege that Ecology has failed to seek and collect adequate
penalties. In comparing Ecology's penalty assessments to EPA's regulatory standard
regarding calculating initial penalty amounts, EPA finds weaknesses in Ecology's
enforcement program. First, Ecology does not adequately document how initial
penalties are calculated, using a standardized worksheet. This makes it difficult to
determine whether Ecology treats violators equally. Second, and more importantly,
Ecology's penalty amounts do not include the economic benefit of non-compliance,
which EPA would include in calculating penalty amounts. EPA will work with the state
in incorporating this policy into the state enforcement manual, and implementing it
within the context of Ecology's enforcement program.
EPA also found that Ecology mitigates penalties from the initial assessments,
sometimes without adequate documentation or additional information to justify
mitigation. EPA is concerned that Ecology not reduce penalty amounts simply as a
means to quickly settle an enforcement case.
EPA found that Ecology clearly lacks a data management system capable of
tracking the status of enforcement actions and for use in basic information retrieval.
Without a central enforcement data system, Ecology is unable to effectively respond to
public or internal inquiries for information. In addition, Ecology cannot be sure that it
is treating violators equitably.
Even though Ecology has documented an adequate enforcement decision path
in its Enforcement Manual, it is the inconsistent implementation of the decision path
that weakens Ecology's program. Ecology's field offices independently interpret
enforcement policies. While there is continuity in managing facilities (an individual in
the field office is responsible for tracking a particular facility), there is no central
management, coordination, or oversight of compliance activities. This may result in
inconsistencies between field office enforcement personnel on what type, and how
severe, an action to take.
In cases of repeat violations for the facilities reviewed, EPA uncovered little to no
evidence of escalation of enforcement response. "Escalation" refers to increased
penalty amounts and/or judicial review over administrative enforcement.
With regard to the adequacy of file information, EPA found that Ecology
maintains adequate enforcement files. EPA conducted file reviews at the Southwest
Regional Office and the IS. Enforcement recommendations came from the
inspector/compliance officer and were very thorough. Violations were
well-documented. The files contain facts, history, the rationale for the penalty, and a
discussion of any proposed mitigation. The one drawback was that Ecology did not
have standardized worksheets for penalty calculation.
I. E. 7
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To insure consistent and appropriate penalty assessment, adequate tracking,
and program direction, Ecology needs to develop a central enforcement process
which would provide priority setting, case oversight, staffing and day-to-day
coordination of enforcement activities.
Ecology should develop an oversight policy to carry out enforcement (and
permit) quality reviews of the field offices. Ecology's WQP must routinely oversee the
field offices to attain the goal of a single Ecology enforcement program, uniformly
implemented in each of the field offices. Ecology should develop a management
system to determine the appropriate enforcement response and to track the status of
enforcement actions.
Ecology should expeditiously develop a data control system, similar to EPA's
PCS. The system need not be elaborate, but should be able to store an information
base of facility level data such as; name, location, permit number, discharge limits, and
compliance dates. Maintenance of the information base should be assigned to an
identified organizational unit in Ecology. Maintenance of a source inventory, such as
EPA's PCS, would greatly improve response time for public requests and aid Ecology
staff and management in their enforcement efforts.
Ecology should include the economic benefit of non-compliance when
assessing penalties. EPA has guidance available on how to incorporate this into
penalty calculations.
Corrective Actions
o Ecology should establish a central enforcement process to improve
enforcement program coordination in operations, management, and priority
setting.
o Ecology should ensure an effective data management system for tracking and
processing.
o Ecology should incorporate the economic benefit of not complying with the law
into penalty assessments.
o Ecology should not provide unwarranted penalty reductions.
o Ecology should consider pursuing regulatory changes that would discourage
lengthy appeals of Ecology's penalty assessment.
I.E. 8
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F. INSPECTION PROGRAM REVIEW
ALLEGATION: THE LACK OF REGULAR FREQUENT INSPECTIONS AND THE
COMPLETE LACK OF UNANNOUNCED INSPECTIONS IS A FAILURE TO INSPECT OR
MONITOR REGULATED ACTIVITIES THAT REQUIRES WITHDRAWAL OF AUTHORITY.
Method of Investigation
EPA reviewed Ecology's commitments, guidance, and policies relevant to the
NPDES inspection program, and interviewed Ecology personnel involved with the
NPDES inspection program. EPA reviewed the following documents: the SEA,
NPDES Compliance Assurance Agreement (CAA), Ecology's WQP Guidance, and the
PSWQMP. EPA compared the guidance contained in these documents to the actual
level of inspection activity as a measure of inspection programs adequacy. EPA
evaluated the period from June 1, 1989, through July 1, 1991, which encompassed the
last two state fiscal years.
EPA determined the level of inspection activity from reports submitted to EPA by
Ecology and entered into EPA's PCS. Information entered into PCS regarding
inspections includes the date of inspection, type of facility (e.g., municipal, industrial, or
federal), NPDES number, type of inspection (compliance or sampling), and inspector
(state, federal, or joint).
EPA obtained a PCS report showing all compliance inspections conducted
during the review period. EPA reviewed final inspection reports for all major
dischargers and a representative number of minor inspection reports. To address the
specific allegation in the petition regarding unannounced inspections, EPA attempted
to determine from the reports if prior notice of the inspection had been provided to the
discharger.
Findings
Background
The following documents address the state's NPDES inspection program.
1. Compliance Assurance Agreement
The NPDES CAA between EPA and Ecology was updated in March 1988 and is
usually appended to the SEA. The CAA delineates responsibilities and cooperative
efforts that Ecology and EPA will undertake to assure NPDES permit compliance.
This agreement states, "inspections will be conducted to establish a regulatory
presence, document compliance, provide a check on reliability of self-monitoring data,
and locate violators and nonfilers." The agreement also states that Ecology is
expected to conduct as many inspections as is practical and cost-effective to
accomplish the above goals.
II. F. 1
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In the CAA, Ecology agreed to conduct annual Class I (Compliance Evaluation
Inspection) or Class II (Compliance Sampling Inspection) inspections of all major
dischargers. For minor dischargers, Ecology agreed to attempt to provide the same
level of inspection, as resources allow. If Ecology anticipates inspection numbers may
fall short of SEA commitments during the fiscal year, Ecology will meet with EPA-WOO
and determine how this commitment will be met. EPA offers its assistance to conduct
inspections through the CAA, as EPA resources allow.
Through the CAA, EPA indicates its intent to accompany Ecology on
approximately 10 percent of the major facilities inspected each year. EPA's purpose
for "oversight" inspections is to evaluate and critique Ecology's compliance inspection
efforts.
2. Memorandum of Agreement
The MOA between EPA and Ecology was updated in January 1990. It
establishes the policies, responsibilities, and procedures pursuant to 40 CFR Part 123,
in which Ecology will administer and EPA will oversee the NPDES program. Section IV
of the MOA deals with enforcement, including compliance inspections. Ecology agrees
to maintain a vigorous enforcement program, as defined in the CAA signed in
June 1986 and any subsequent amendments. The MOA recites numerous provisions
with regard to the conduct of compliance inspections, including Ecology's agreement
to inspect all major permitted facilities every year.
3. Puget Sound Water Quality Management Plan. 1991
The PSWQMP provides guidance and recommendations for certain
environmental activities in the Puget Sound area. Plan element P-14 encourages
Ecology to conduct a "significant number" of unannounced Class I and II inspections.
The goals for frequency of inspections are identified in the plan as follows:
Type of Permit Number of Inspections per Year per Permit
Class I Class II
Major 2 1
Significant Minor 1 0.5
State and minor NPDES 1 0.1
The 1991 PSWQMP also recommends that Ecology establish an inspection
information tracking system by June 30, 1991, which Ecology has not completed. To
provide reports regarding numbers and types of inspections (including unannounced
inspections), inspection results, number and type of violations discovered, actions
initiated in response to violations, laboratory data, and inspection turnaround time.
Turnaround time is the time between conducting an inspection and completion of the
final inspection report. The Authority was also interested in tracking facilities whose
personnel denied access to inspectors.
I. F. 2
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4. State Policy
In the MOA, Ecology agrees to follow the policies, principles and procedures in
its Enforcement Manual. Ecology's policy for conducting unannounced Class I
inspections was adopted into its Enforcement Manual in June 1988. That policy states
that a "significant number" of Class I inspections will be conducted without prior notice
to the discharger. Significant number is defined as at least 10% of the inspections of
both NPDES and state waste discharge permittees. The policy does not address
Class II inspections. There are no EPA regulations regarding unannounced state
inspections, although EPA, as a matter of policy, discourages advance notice of
inspections to permittees, except when necessary.
5. State/EPA Agreement
The FY90 and FY91 SEA contain commitments pertaining to NPDES inspection
activity, but do not specifically address unannounced inspections. EPA tracks
completed inspections as they are submitted by Ecology through review of the reports
and entry into PCS. EPA typically shares information regarding the status of major
inspection completion (according to EPA tracking) with Ecology prior to the end the
fiscal year.
The SEA states that responsibility for conducting NPDES inspections is
organizationally divided between Ecology's WOP and Central Program. Inspections
conducted by the WQP are typically done by staff in one of the four regional offices.
The IS is responsible for 29 major dischargers throughout the state, including pulp
mills, oil refineries, and aluminum smelters. Some NPDES inspections are also
conducted by the UBAT within the TCP. Complex sampling inspections are conducted
by the EILS Program for both Water Quality and Central Programs.
Merit of Allegation
1. Data on Inspections
A summary of the PCS printout for NPDES inspections indicates that Ecology
conducted a total of 531 NPDES compliance inspections during the two-year review
period. EPA accompanied Ecology on some of these inspections, and did not
independently conduct inspections for any of these facilities. Major dischargers (there
are 87 state regulated "majors" in Washington) accounted for 250 of the 531
inspections. EPA reviewed 274 inspection reports, including all 250 of the major
discharger reports, to determine the number of unannounced inspections. The chart
below summarizes the review.
I. F. 3
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Announced Unannounced Unknown5 Total
Majors 37 38 175 250
Minors 5 7 12 24
Total 42 45 187 274
In interviews with Ecology inspectors, EPA found wide variation in the frequency
of conducting unannounced inspections. Inspectors responded across the range of
"almost all" to "very seldom." A few inspectors routinely identify unannounced
inspections in their reports. However, the inspection forms do not require an indication
of whether the permittee received prior notice of the inspection. During the public
workshops and in a written comment received by EPA, industry representatives
reported that Ecology had conducted unannounced inspections at their facilities.
The IS attempts to conduct at least one annual Class II inspection and quarterly
Class I inspection on all regulated dischargers. However, this level of inspection
activity may be reduced due to the workload of reviewing permit required reports. A
large percentage of unannounced inspections were conducted by the IS. The IS
maintains its own tracking system for the status of permits and inspections of
regulated dischargers. Ecology provides printouts of this tracking on a monthly basis
to Ecology's WQP and EPA.
Fifteen of the 87 state-regulated major dischargers in Washington did not
receive a compliance inspection during FY90. Most of these facilities were municipal
dischargers. One major industry and one municipality were not visited in FY91.
Approximately 50% of the industrial dischargers (primarily those regulated through the
IS) received multiple inspections in both years.
The documented level of inspection activity fell short of commitments in the CAA
and the SEA because not all major dischargers received an annual compliance
inspection. Ecology and EPA's WOO expressly agreed to avoid repeating the 1990
shortfall in FY91. This effort succeeded, with two exceptions attributable to a tracking
error and laboratory capacity, respectively. In the first case, Ecology records indicated
that a compliance inspection had been completed, when a municipal operation and
maintenance inspection had actually been completed. The other inspection (of an
industry) was delayed from June into July (FY92) due to the state laboratory analytical
capacity. In the latter case, Ecology should have scheduled the analysis earlier with
the laboratory.
If the inspection report did not provide any clear
indication as to whether prior notice has been given, the
inspection was assigned the "unknown" status.
F. 4
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The frequency of inspections accomplished also falls short of recommendations
set forth in the PSWQMP. Although Ecology's inspection of major industrial
dischargers was close to the PSWQMP's goal, major municipal facilities were seldom
inspected more than once per year.
EPA accompanied Ecology staff on 18 oversight inspections during FY90 and
FY91. Recommendations for improving inspection practices are typically discussed
between staff immediately after a site visit. EPA found that Ecology staff adequately
evaluated the facilities and the discharger's self-monitoring program during the
inspection. Additionally, EPA and Ecology jointly conducted several multi-media
inspections of industrial dischargers and Ecology accompanied EPA on inspections of
several federally-regulated NPDES dischargers.
2. Scope. Reporting, and Tracking of Inspections
The main purpose of an inspection is to evaluate compliance with
self-monitoring, reporting, and recordkeeping requirements of the permit and to verify
that the conditions at a facility are as reported by the permittee. The format, scope,
and detail of inspection reports written by the IS and regional office staff varied
dramatically from one inspector to the next. Some reports consisted of only the
required EPA form and barely satisfied the main purpose of conducting compliance
inspections. In contrast, other reports included detailed narrative descriptions of the
facility, graphs showing recent monitoring data, diagrams of treatment processes, and
descriptions of regulatory compliance activities.
The scope of inspection reports prepared by EILS generally exceeded an
evaluation of facility status and the permittee's self-monitoring program. Most often the
inspection included whole effluent toxicity monitoring and ambient receiving water
sampling. However, EILS typically takes over one year from the time of inspection to
complete a final report. That amount of time diminishes the opportunity for a timely
enforcement response to any detected non-compliance. This audit did not evaluate
whether timely completion of inspection reports was a problem at any of the other
Ecology offices. Completion of sampling inspection reports is often delayed while the
inspector waits for sample analyses results. In these cases, the inspectors are asked
to complete the EPA form to indicate that an inspection was conducted and later
transmit the entire report when completed.
Ecology tracks inspection commitments through monthly reports submitted by
the WQP planning unit to the program manager. The report is generated from
information submitted [either written or through the Washington Discharge Information
System (WDIS)] from the regions, IS and EILS. The inspection reports and
recommendations regarding inspection findings are not transmitted to any centralized
location for review. A quarterly report is submitted to EPA through the WOO indicating
the status of SEA inspection commitments; EPA itself generates these reports for
Ecology. However, as mentioned above, EPA credits inspections accomplished
through receipt of the actual inspection report.
II. F. 5
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Ecology's review of inspection reports and accompanying staff
recommendations is completely decentralized and presently a function of supervisors
in the field offices. Some of the report forms included a supervisor's signature,
indicating that they had received and reviewed the report. The offices evaluated during
this audit each had their own internal review and routing procedures directing
inspection reports through the unit and/or section supervisor. The Southwest
Regional Office recently implemented standardized procedures for inspection report
writing, inspection routing, and timeframes for completion of inspection reports.
During this audit review period, Ecology and EPA heavily emphasized toxicity
testing and water quality-based permitting for a large number of expiring major permits.
Since Ecology's permit writers are also inspectors in many cases, the impact of this
decision was that Ecology accomplished fewer inspections than planned. Ecology and
EPA agree that "major" dischargers represent the most environmentally significant
point sources of pollution in the state, and therefore permits and inspections of minor
dischargers will receive a lower priority in the event of resource shortages. Given the
significance of dischargers designated as majors, annual inspections of major
dischargers is a priority that neither EPA nor Ecology can afford to forego.
In FY91, Ecology substantially complied with its requirements for inspections of
major facilities contained in the MOA, CAA, and SEA, in that all but two major
dischargers received an annual compliance inspection. These two exceptions are
attributable to a tracking error and inadequate laboratory capacity. In addition,
Ecology conducted a limited number of compliance inspections of minor facilities
throughout the review period.
EPA recommends that Ecology improve its tracking of the status of inspection
commitments throughout the year. Ecology should compare state and federal tracking
records during each fiscal year, possibly on a quarterly basis, to eliminate end-of-year
shortfalls due to recordkeeping errors. Ecology should evaluate inspection
accomplishments several months before the end of each fiscal year and request, if
necessary, EPA assistance in meeting major inspection commitments. Ecology and
EPA should determine in advance which agency will take appropriate enforcement
action if an EPA inspection discovers non-compliance.
A large percentage of inspection reports did not indicate whether the permittee
received advance notice of the site visit (184 "unknown" from above chart). It was
therefore impossible to determine from the reports the number of unannounced
inspections conducted. Ecology evidently achieves considerably more than the WQP
policy target of 10% unannounced inspections and likely also conducted many more
than the 45 observed during this audit. Based on these findings, EPA suggests that
Ecology simply indicate on the inspection form whether the inspection was announced
or unannounced.
Finally, Ecology should assume responsibility for data entry and report
generation related to inspection activities.
I. F. 6
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Other recommendations are provided to improve Ecology's inspection program:
(1) streamline EILS report writing so that final reports are completed relatively soon
after inspections; (2) provide inspection report writing training; and (3) verify that all
offices conducting NPDES inspections have a method for documenting supervisory
review of inspection reports. One mechanism to provide for this increased
accountability would be to establish a position in the WOP with authority for all
enforcement, compliance monitoring, and inspection activities. In addition, Ecology
headquarters should occasionally conduct program quality reviews of inspections,
report writing, and follow-up activities at the offices conducting inspections. EPA
believes that establishment of such a position and conduct of such reviews would
allow more consistent implementation of Ecology's inspection program in the state.
Corrective Actions
o Ecology should provide improved tracking of the status of inspections and
reporting of inspection information.
o Ecology should increase central oversight and coordination of the inspection
program.
I. F. 7
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G. PRETREATMENT PROGRAM REVIEW
ALLEGATION: (No specific allegation)
Method of Investigation
Deficiencies in Ecology Pretreatment Program were not specifically cited in the
petition. However, because Ecology's pretreatment program is a key component of its
NPDES program, EPA conducted a general assessment of Pretreatment Program
implementation as part of the petition review. In its oversight capacity, EPA Region 10
is currently conducting a detailed, comprehensive assessment of Ecology's
Pretreatment Program.
Although not addressed in the petition, two specific concerns regarding the
pretreatment program were raised during the public workshops:
1) Lack of adequate enforcement by the city of Tacoma against an IU
alleged to be consistently out of compliance.
2) A significant penalty reduction by Seattle METRO against an IU in
non-compliance.
The commenter suggested that Ecology was not conducting adequate oversight
and follow-up. EPA investigated each of these allegations which are discussed in
further detail in the Oversight of Local Programs section of this report.
EPA's assessment included discussions with state staff, review of municipal files
for the delegated POTWs (including a review of pretreatment annual reports and
oversight inspection reports for the delegated POTWs), and a review of files on
industrial users located in non-delegated POTWs. The majority of industries and
delegated POTWs are located in Western Washington. Consequently, EPA conducted
on-site reviews in Ecology's Northwest Regional Office and Southwest Regional Office,
respectively.
Subjects covered by this review include:
Authority of Local Pretreatment Programs
Oversight of Local Programs
Control of IDs
Legal Authority, Procedures, Staffing
Issues Raised During Public Meetings
II. G. 1
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Findings
Background
EPA approved Washington's pretreatment program on September 30, 1986.
The program is administered by Ecology. Each of Ecology's regional offices have staff
responsible for program implementation. Ecology maintains a central pretreatment
coordinator in its Olympia Headquarters office. There are eight federally approved
local pretreatment programs.
The main responsibility for regulating IDs rests with the delegated POTW
programs. Statewide, a very large percentage of Ills discharge to these POTWS.
Ecology is responsible for ensuring that these POTWs adequately implement their
respective programs. Appendix ll-G-1 contains the list of approved programs.
Responsibility for applying and enforcing pretreatment standards and
requirements for lUs located in the other non-delegated POTWs rests with Ecology.
The state has authority to issue permits to these IDs, conduct compliance monitoring
and inspections, and undertake enforcement actions against non-complying I Us.
Authority to regulate I Us located in non-delegated POTWs is allowed under EPA
General Pretreatment Regulations, at 40 CFR 403.10(e)
1. Authority of Local Pretreatment Programs
The state must have authority and procedures to identify and require the
development of local programs, to provide technical and legal assistance to POTWS,
and to require implementation of the approved local programs through NPDES
permits. 40 CFR 403.10(f)(2)
There are presently eight delegated POTW programs. At least three
additional pretreatment programs may be added. Ecology, via its NPDES
permits, requested that these three POTWs conduct industrial surveys
and evaluate and improve their respective sewer use ordinances (SUOs).
These tasks have been completed and Ecology should move forward to
require development of these programs. An additional city has
volunteered to develop a program (Federal Way) and the Northwest
Regional Office is working with it.
Ecology has developed comprehensive pretreatment implementation
language for delegated POTW NPDES permits. All of the delegated
POTWs have such language in the permit or in an Administrative Order.
(Spokane was issued an Order with the pretreatment conditions. Its
permit is being renewed and the conditions will be placed into the
permit.) In addition, special pretreatment language is contained in
NPDES permits for the non-delegated POTWS. Appendix ll-G-2 contains
example of the pretreatment implementation language.
II. G. 2
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Ecology provides technical guidance and assistance to POTWs, has
developed a statewide newsletter, and has conducted statewide
workshops. The state Pretreatment Coordinator had routinely kept
abreast of EPA guidance and policies.
Ecology has additional rules governing regulation of IDs and
requirements for POTWs beyond EPA's general pretreatment regulations.
For example, Ecology does not allow hazardous waste to be discharged
with domestic sewage, unless the discharger has been issued a state
discharge permit or a permit from a delegated POTW.
2. Oversight of Local Programs
A significant program function of Ecology's pretreatment program is to ensure
that delegated POTWs implement adequate pretreatment programs. This evaluation
consists of the review of annual pretreatment reports submitted by the cities, as well as
pretreatment compliance inspections (PCIs) and audits of the local programs. Audits
are comprehensive evaluations of a local program, while PCI are less
resource-intensive and focus on a POTW's compliance monitoring and enforcement
activities.
Ecology must conduct an annual on-site evaluation of each local program.
Ecology prepares reports and forwards them to the POTWs with findings and
recommendations. If Ecology's evaluation indicates that the POTW is not adequately
implementing its program, then it may take appropriate enforcement action.
Ecology routinely meets its annual commitment to conduct a PCI or audit
each year. (The only exception is Anacortes. Ecology wants to drop the
city from the program and is awaiting EPA concurrence; therefore a PCI
was not conducted for FY91.)
For PCIs and audits, comprehensive checklists are used and reports are
generally well written, forwarded to the POTW in a timely manner, and
cover most of the important findings. (There were a few cases in the
Northwest Regional Office where inspection reports this past year were
excessively late.) For the most part, the files indicate that cities were
making steady progress in implementation during the first few years to
the point that most are now implementing adequate programs.
Ecology's POTW files were essentially complete. Although annual
evaluations/summaries are not conducted or prepared, a review of the
files indicated that most cities complied with EPA's general pretreatment
regulations.
I. G. 3
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Ecology issued an Order to Tacoma (No. DE 88-SIIO), which was
appealed and later settled in a Stipulated Agreement. The file review
indicated that the city has made progress to improve its program, but it
has been slow. The city of Richland appears to be another program that
is lagging behind.
Ecology lacks a policy or benchmark regarding the components of an
adequate program. Ecology does not complete an annual summary on
the adequacy of all local pretreatment programs. For example, how does
Ecology determine what is timely and appropriate enforcement by a
POTW against non-complying industrial users?
Regional pretreatment staff at Ecology are presently evaluating local
programs to assure compliance with EPA's new pretreatment
amendments, although this review is off to a late start. Most of the
PCI/audit reports did not provide a deadline for submittal of all changes
to the POTW programs to comply with EPA's new pretreatment
regulation amendments.
Ecology has been slow to make a final decision on whether three
additional POTWs may be required to develop a full pretreatment
program.
Although audit/PCI audit reports generally cover major findings, they do
not routinely require response dates and/or dates for requiring
deficiencies to be corrected or dates for submittal of program
modifications. Some POTWs submit responses and program
modifications. Additionally, where POTWs submitted revisions to their
program to address findings in Ecology's evaluations, it was not apparent
that Ecology routinely reviewed these changes to determine adequacy.
This results in Ecology's inability to track the POTWs' progress during the
year to address any shortcomings or to conduct timely reviews of
program modifications. The state tries to follow-up during the next
inspection and there is some general discussion in the next year's report.
However, from a review of the files we are uncertain whether the POTWs
addressed all of the shortcoming (s).
Ecology had agreed with EPA to gather specific pretreatment information
and to enter it into EPA's Pretreatment Performance Evaluation Tracking
System - (or to provide the information to EPA to enter into EPA's PCS).
Entry of this information would help generate a report on the "health" of
the local programs, but has yet to occur. This shortcoming is probably a
result of Ecology's pretreatment program coordinator lacking direct
responsibility over regional office pretreatment program activities.
I. G. 4
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Ecology should direct more attention during audits and PCIs to
evaluating IU violations and the timeliness and appropriateness of
enforcement actions. POTWs identify IDs in SNC and often issue Notice
of Violations (NOVs). Escalation to Administrative Orders and fines and
penalties does not occur for chronic violators (except in Seattle METRO'S
case). Additionally, inspectors do not conduct industrial user inspections
with city staff during the audit and PCIs.
Regarding the allegation raised at a public workshop of Seattle METRO'S
reduction of an initial fine of $64,000 to $10,000 for Surftech, EPA
determined, based on discussions with the Northwest Regional Office
and Seattle METRO, that METRO reduced the fine due to limitations on
METRO'S ability to collect fines above the maximum allowed by
resolution. After further review of the alleged violations and meetings with
the company, METRO determined that there were two violations and it
levied its maximum fine per violation of $5000. Ecology was aware of this
and considered the action by METRO appropriate.
Regarding the allegation that Tacoma has inadequately enforced against
a chronic violator (Washington Uniform Services), Ecology conducted an
assessment for EPA. The state concluded, from a historical perspective,
that Tacoma had not conducted timely and appropriate enforcement
against this company. However, this appears to have been due to the
city's lack of a well-defined enforcement program. As mentioned earlier
in this section of the report, Ecology issued an Administrative Order to
Tacoma for failure to implement all elements of its program. A Stipulated
Agreement was signed with the city in May 1989. Since then the city has
made progress by developing an enforcement response plan and
modifying the SUO to include enforcement remedies.
Since 1989, Tacoma: issued two NOVs to Washington Uniform (October
and November 1989), listed in the local newspaper the company's status
as a significant violator, required the company to cease discharging any
wastewater related to printer and shop towels washing operations,
required the submittal of an engineering report for a pretreatment system,
and increased its sampling and inspection frequencies at the facility.
Ecology recognizes that there is room for improvement in Tacoma's
enforcement program. EPA will be monitoring the city's general
enforcement efforts and specifically its compliance activities with regard
to Washington Uniform.
As mentioned above, Ecology should take a more active role in
evaluating a local POTW's enforcement efforts. When it is determined
that timely and appropriate enforcement action is not taken, the state
should require the POTW to take the necessary steps and/or should
seek appropriate action against the POTW and the non-complying facility.
II. G. 5
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3. Control of lUs
Ecology regulates IDs in non-delegated pretreatment cities. Under state rules,
Ecology utilizes a permit program to regulate IDs. The pretreatment regulations at
40 CFR 403.10(e) allow delegated pretreatment states to implement federal POTW
requirements.
. Ecology historically has not undertaken an active role in regulating I Us of
non-delegated POTWs. For example, companies submitted permit
applications with no permit issued, permits were issued and allowed to
expire, or effective permits did not contain adequate requirements. Over
the last few years, EPA Region 10 voiced concern regarding the lack of
regulation of I Us in non-delegated POTWs covered by EPA categorical
pretreatment standards.
During the last two years EPA has assisted Ecology in identifying the lists
of categorical users. Ecology has also required some of the
non-delegated POTWs to conduct industrial surveys to determine
whether any significant lUs were located in their cities. As a result, there
has been increased effort in the Northwest Regional Office and
Southwest Regional Office to issue/reissue state permits to categorical
users. Ecology issues permits to other non-categorical users if their
discharges cause problems to POTWs or to classes of users (fish
processors or food processors) with the potential to cause problems. (If
any discharger applies for a non-NPDES state permit and one is not
issued within 60 days, the company is deemed to have a permit under
state law).
In the Northwest Regional Office there are ten categorical users: six
permits have been issued and four drafted. In the Southwest Regional
Office there are an estimated nine categorical users with effective permits
issued to six of the facilities.
EPA conducted a cursory review of state permits issued to categorical
users in non-delegated POTWS. The permits contain limits, require
self-monitoring and reporting, and contain special conditions where
appropriate. Ecology has not yet upgraded the permit form to comply
with recent amendments to EPA's pretreatment regulations but is
preparing a revised version. Ecology prepares fact sheets explaining the
requirements contained in the permits.
Ecology does not clearly evaluate whether limits in the individual permits
issued to categorical users will protect the POTW, and not cause pass
through or sludge contamination.
I. G. 6
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Ecology rarely tracks compliance of permits issued to categorical users.
In addition, very little compliance monitoring has occurred in the
Northwest Regional Office and Southwest Regional Office. Ecology has
relied solely on self-monitoring from the dischargers. EPA regulations at
40 CFR 403.10(e) require compliance monitoring and inspections. The
files documented inspections of the IDs and limited sampling. Other
delegated states and EPA regional offices have had similar problems in
this area.
The state has not developed an overall strategy for regulating Significant
Industrial Users (SlUs) in non-delegated POTWS. For the most part,
Ecology has not taken enforcement action against categorical users that
fail to comply with permit limits, special conditions, or reporting
requirements. There is no method of determining the compliance rate of
SlUs.
The state has not formally implemented recent EPA amendments to
pretreatment regulations pertaining to SlUs. This is not unusual since
many other states are struggling with similar resource problems and
other competing priorities.
4. Legal Authority. Procedures. Staffing
General pretreatment regulations require states applying for pretreatment
program authority to have sufficient legal authority, procedures, and resources to
implement EPA's pretreatment program. EPA approved Ecology's request for
program authority on September 30, 1986. Depending upon the outcome of
Washington's own review of its legal authorities, the Ecology's pretreatment program
authority may need to be updated.
Ecology has not formally reviewed its program procedures and legal
authority to determine conformance with EPA's recent pretreatment
amendments as related to oversight of the delegated POTWs and
regulation of I Us in non-delegated programs.
Ecology's pretreatment coordinator position has recently been filled. EPA
views this position as important for providing valuable services such as
training for staff and POTWS. The previous Ecology coordinator also
developed a state pretreatment newsletter and conducted meetings with
POTWs and Ecology Regional staff.
Critical functions of the coordinator position should include: developing
state policy, guidance, and strategies; playing a role in the annual
planning process for pretreatment implementation commitments; and
overseeing regional office staff.
II. G. 7
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Lack of such activities have resulted in inconsistent implementation within
the various field offices, along with a lack of accountability.
The following breakdown of staffing levels is based on interviews with the
former pretreatment coordinator:
Headquarter: 1 FTE (pretreatment coordinator-vacant)
Southwest Regional Office: 2 FTEs
Northwest Regional Office: 1.9 FTEs (one full time, others part time)
Central Regional Office: 0.5 FTE
Eastern Regional Office: 0.5 FTE
Staffing levels for oversight of local programs appears adequate: six
FTEs for fewer than 10 delegated programs. However, in order for
Ecology to manage the pretreatment program in the non-delegated
POTWS, it should increase the level of staff resources.
Although staff in the Northwest Regional Office and Southwest Regional
Office are fairly knowledgeable about the program, the staff in the other
two regional offices perform only minimal pretreatment activities and have
less expertise.
Summary of Findings
As mentioned above, no allegations were made specific to pretreatment.
Although Ecology's pretreatment program is currently in various stages of
implementation, it is making progress overall.
Ecology oversight of local programs is adequate. As suggested in the
report, some improvements could be made. Compliance inspections and
audits are conducted annually, and reports are forwarded to each POTW
with recommendations for improvement whenever appropriate.
Staff interviewed in the Northwest Regional Office and Southwest
Regional Office are very knowledgeable about program requirements,
work with their POTWs, and provide technical assistance and training to
pretreatment staff at the local level.
. From a review of the files and reports, most POTWs are implementing
EPA's basic pretreatment requirements found in 40 CFR 403. Where a
POTW falls behind in implementation, Ecology has taken some form of
action. POTWs have been informed of EPA's new pretreatment
regulations and are in the process of making changes.
There has been limited improvement in issuing permits to categorical
users in non-delegated POTWs.
I. G. 8
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Lack of a Central Pretreatment Coordinator and limits placed on the
position has hampered the direction of the program and consistent
statewide implementation. In addition, there is a lack of adequate staff to
permit and regulate lUs in non-delegated POTWs. 40 CFR s403.10(f)(3)
requires adequate staffing and funding.
There is inadequate compliance tracking, monitoring, and inspections,
and enforcement of IDs in non-delegated POTWs. Although Ecology
issues permits to categorical users, the permits may not be fully
adequate and may not assure that the discharge from these industrial
facilities will not cause pass-through, POTW interference, or sludge
contamination.
There is a lack of pretreatment data tracking and entry as required by the
CAA and MOA.
Ecology should require additional local programs (targeted) to develop
programs within 1 year. In addition, Ecology should improve local
program oversight for existing programs.
Ecology should complete issuance of permits to categorical users and
develop a plan to issue permits to other SlUs in non-delegated POTWs.
Ecology should increase staffing levels to insure proper regulation of
users in non-delegated POTWs.
Ecology should implement revisions to EPA's general pretreatment
regulations on Ills in non-delegated POTWS.
Ecology should ensure full implementation of Tacoma's and Richland's
program within six months.
Ecology should insure that limits in permits issued to categorical users in
non-delegated POTWs will prevent pass through, interference, and sludge
contamination.
Corrective Actions
o Ecology should provide central oversight and coordination of the pretreatment
program including improved data entry and tracking systems.
o Ecology should improve compliance tracking, monitoring, inspections, and
enforcement in non-delegated POTWs and improve categorical permits to users.
o Ecology should increase attention to non-delegated programs and require
additional specified local programs to develop programs within one year, plus
ensure full implementation of local programs within six months.
II. G. 9
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H. INFORMATION MANAGEMENT AND PUBLIC PARTICIPATION
ALLEGATIONS: THE WASTEWATER DISCHARGE INFORMATION SYSTEM IS
CURRENTLY IN PHASE I DESPITE THE SEA REQUIRING COMPLETION OF PHASE IV
BY APRIL 31, 1991. ROUTINE REQUESTS FOR INFORMATION ARE OFTEN
UNFULFILLED DUE TO POOR DATA MANAGEMENT OR THE COMPLETE LACK OF
DATA. THESE [ARE] FAILURES TO COMPLY WITH PUBLIC PARTICIPATION
REQUIREMENTS. [A]S REQUIRED BY THE MEMORANDUM OF AGREEMENT,
ECOLOGY HAS NOT MAINTAINED AN ADEQUATE PUBLIC FILE.
Method of Investigation
The first of these assertions to the alleged inadequacy of the WDIS and the
alleged failure of Ecology to respond to routine requests for information. The second
assertion, while related to information management, more specifically relates to the
alleged failure of Ecology to provide information to allow the public to participate in the
NPDES permit process.
The scope of the review with regard to Ecology's WDIS system included:
studying current and planned WDIS systems -- capabilities, deficiencies,
and capacity to provide data elements to EPA;
determining current Ecology procedures for responding to public
requests for information; and
analyzing the planned information management system to determine
improvements to Ecology's capacity to respond to public requests for
information.
This review with regard to Ecology's WDIS system was accomplished through:
document reviews, including the SEA, MOA, Efficiency Commission
Report, independent consultant studies, Ecology's WDIS project definition
and plans, and applicable state and federal statutes and regulations; and
interviews with Ecology management and staff in the Planning and
Evaluation Section of the WQP, the Public Information and Education
Office, and Ecology's Public Disclosure Officer (PDO).
The scope of review with regard to the second allegation regarding public
participation consisted of reviewing Ecology's existing public participation systems and
processes. The sources of information for this portion of the review were:
. interviews with Ecology personnel; and
II. H. 1
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petitioner and public comment materials.
Findings
Background
1. Washington Discharge Information System
The state of Washington has a public disclosure law which is implemented by
Ecology implements. The Washington State Open Government Act (RCW 42.17) and
Public Records Regulation (WAC 173-03) requires that formal requests for information
be handled in a timely manner. Ecology's PDO, located in the Office of Financial,
Personnel, and Support Services, acts as the single point of contact between Ecology
and the general public for requests for information. Each program and regional office
supports a Public Records Coordinator (PRO) who works with Headquarters' PDO to
ensure that requests are answered in a timely fashion. Ecology staff are instructed to
refer any requests for information from the public to their program/region's PRO. The
PRC in turn notifies the PDO upon receipt of any request for public records. The PDO
logs requests, tracks them, and maintains files on all requests. The PDO personally
trains all program/regional PRC, as well as all new Ecology employees, in department
policies and procedures.
In meetings with the petitioners and in workshops held with the general public in
four Washington cities, individuals related personal accounts of failed attempts to
receive permit information from Ecology's WQP.
The provision of information to the public by the WQP is, of course, entirely
dependent on the availability of permit information to the responding official. If this
information is not managed or available, Ecology cannot provide the information to the
public upon request. Permits are managed in Ecology's four regional offices and the
IS at Headquarters; therefore, permit information is scattered throughout the state.
Ecology has attempted to manage permit information centrally through the creation of
an information management system, WDIS. WDIS was originally developed in 1984
due to Ecology's dissatisfaction with EPA's PCS.
2. Public Participation
As mentioned earlier, Ecology follows a state public disclosure law in its
implementation of the NPDES permit program. In addition, Ecology must follow federal
regulations regarding public participation, such as found in 40 CFR s 124.10. The
petitioners alleged that it was difficult for the public to be placed on a permits mailing
list. The NPDES regulations at 40 CFR §124.10(c)(ix) require authorized NPDES states
to maintain such a mailing list. The WQP at one time had such a list, but it was lost
due to computer problems. The regional offices are helping rebuild the list and
Ecology management indicated during the audit that the problem had been rectified.
I. H. 2
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Summary of Findings
1. Washington Discharge Information System
Ecology recognizes deficiencies with the current information management
system and is planning and designing a new WDIS to correct these
deficiencies. The new system will contain fields for all permit data
elements required by EPA and the CWA; these include information on
facilities, inspections, compliance, and enforcement for both "major" and
"minor" dischargers. The new WDIS will eventually be able to upload
information to EPA's PCS. Ecology considered all of the required PCS
data elements before designing the new system to insure capacity to
upload data electronically. The development of the new system is being
planned and overseen by a "Users Committee" and a "Management
Committee." Committee membership is comprised of Ecology
management and staff from each regional office, the IS, Headquarters
WQP, Headquarters' Information Management Division, and outside
computer information consultants.
The current WDIS system is not adequately managing data entry for
Ecology's NPDES permits. There are tremendous gaps in permit
information in the system due to inadequate data entry by the regional
offices. Ecology officials estimate that it would take one individual per
regional office three months to one year to fill existing gaps in permit
data. In addition, the current WDIS system does not generate
standardized reports. The NPDES program is unlike many of Ecology's
other programs in that standard reports are not readily available for the
public. The regional offices are not linked electronically to Headquarters;
therefore, the regional offices must send their permit data through the
mail on floppy disks. Perhaps even more importantly, regional offices
cannot directly query the system for information requested. This
condition, of course, limits the regional office's PRC ability to respond to
public information requests or to be used as a management tool.
While the new WDIS may in fact serve Ecology's purposes, for FY92,
Ecology has dedicated only 1.15 FTE for development and
implementation of WDIS. The WDIS project manager estimates that full
implementation of WDIS will occur no sooner than the Spring of 1994. In
addition to the delay in implementation of a functioning data system, it
appears through discussions with various Ecology personnel that
organizational problems contributed to problems with the past system
and may continue with the new WDIS. These potential problems include
questions regarding the regional offices' commitment to data entry due to
lack of direct line accountability of the regions to Headquarters' WDIS
managers. In addition, there appears to be a lack of consensus among
the various users on the priorities for developing the new WDIS.
Competing interests among the program's various user sections is
II. H. 3
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hindering system design and implementation. As development of the
new system is such an enormous task, it is planned in three stages.
Although these stages have not yet been defined, they will likely be:
facility and permit information, inspections, and compliance and
enforcement. Each stage of development is estimated to take one year
to complete. Therefore, the order of development is an important issue
to the various sections of the WQP. Finally, some stakeholders with an
interest in Ecology's information management system, including citizen
groups, Ecology's Public Information Office, Ecology's PDO and EPA, are
not involved in WDIS design.
. Ecology's current WDIS is incapable of uploading information into PCS,
EPA's national database. EPA, therefore, supports a contractor who
manually enters Ecology's permit data into PCS.
2. Public Participation
Ecology indicated a willingness to assemble a process description on
how draft permits are prepared and distribute this to the public, with
meetings for environmental groups and industries to explain the process.
Allegations surfaced during the audit that Ecology negotiates permits with
permittees prior to public notice. Ecology staff indicate that this is the
public's misperception and the reality is that technical assistance to
permittees and information gathering must take place before the permit is
drafted and noticed. Federal regulations do not prohibit correspondence
between permittees and the permitting agency before initiation of public
notice of the draft permit as well as other times in the permitting process.
During the audit, Ecology staff indicated that they believed the state
responds adequately to written public requests for information, but
acknowledged it needs to improve its delivery system for phone inquiries.
In August, Ecology indicated it was considering developing an outreach
system for notifying the public of appeals, settlements, modifications, as
well as new requirements, regulations, and guidance.
Ecology's ability to respond to and provide the public an opportunity for
participation and involvement is impacted by its information management
system. Its failure to effectively and timely respond to the public on
information requests leads to public perception problems. For example,
there is no standard operating procedure in Headquarters to respond to
public complaints. The problems with the existing and future WDIS
system discussed above continue to create problems for Ecology staff to
respond to public information requests.
With regard to public notice procedures for the NPDES permit program,
Ecology appears to have its own policies and procedures. Regional
office have discretion in selecting the major newspapers used for formal
II. H. 4
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public notices. In general, for many permits, two public notices are
given: (1) to announce receipt of an application to discharge, and to
develop a list of people interested in the permit; and (2) to public notice
the draft permit. Permittees must publish and pay for legal notices, which
has sometimes resulted in delays in permit issuance. In some cases, the
regional offices have paid for public notices. The state is considering
potential changes to this system of public notice.
State law requires a charge of $.20/page for information given to anyone.
The policy is to require up-front payment before sending information.
Certain members of the public expressed concern at the public
workshops and in written comments that these policies limited the ability
of members of the public to effectively participate in the process.
Merit of Allegation
1. Washington Discharge Information System
Based on this review, EPA finds that the development of new WDIS is behind
the schedule laid out in the FY91 SEA. The FY92 SEA contains language that Ecology
will "[cjontinue development and implementation of WDIS" with no dates attached. In
addition, data is poorly managed by Ecology at present; there are numerous gaps in
the current WDIS including the inability of the regional offices to directly input or query
WDIS, and the inability to upload to PCS from WDIS. Finally, this poor data
management prevents Ecology from effectively responding to public requests for
information. Ecology should undertake immediate action to timely and effectively
manage its permit information.
The Efficiency Commission Report addressed deficiencies in WDIS. Ecology's
response to the Efficiency Commission Report makes only limited recommendations to
address these deficiencies, including reevaluating WDIS use by February 28, 1992, and
implementing a WDIS strategic plan by April 30, 1993.
Ecology's September 1991 Action Plan did not contain any specific provisions
for WDIS.
EPA strongly recommends immediate implementation of the PCS at Ecology;
Ecology could then manage permit information to the degree necessary to respond to
public requests for information almost immediately. Although it is not Ecology's
preferred tool for managing permit information, PCS is available and should meet a
majority of the state's needs. Ecology has taken a long period of time to develop and
implement an alternative system. Twenty-four of the 39 states with authorized NPDES
programs manage permit information via PCS; and, another seven currently interface
with the system. EPA is willing to explore providing Ecology with necessary technical
assistance to implement PCS in Washington, including training and installation.
I. H. 5
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If Ecology does not use PCS, it should proceed expeditiously to develop and
implement the proposed WDIS currently being designed by Ecology which appears to
address most, if not all, of the present shortcomings of the current WDIS system.
Ecology estimates however, that the system will be fully operational no earlier than the
Spring of 1994, and that date was termed "optimistic" by one Ecology official. Should
Ecology decide to pursue development of WDIS concurrently, or at a later date, the
following are highly recommended:
increased stakeholder involvement, particularly private citizens and
Ecology's Office of Information and Education and
increased design resources, specifically additional computer
programmer FTEs.
Regardless of which system is used to manage permit information, PCS or
WDIS, Ecology regional office data entry is critically important. Ecology should
address both the issues of sustained training for regional office permit support staff,
and Headquarters oversight and accountability systems to insure continued regional
office data entry.
2. Public Participation
EPA agrees that various aspects of Ecology's public participation and
involvement process are constrained by various process considerations. However, in
almost all cases, current Ecology procedures appear technically to conform to
minimum NPDES requirements for state programs.
In addition, Ecology has various activities planned or underway to address
these deficiencies or problem areas, as articulated in the September 1991 Action Plan,
which should address many of the concerns expressed by the public. EPA believes
implementation of these activities should resolve any existing concerns in the public
participation of information; however, Ecology plans to address concerns articulated
below about the information management system itself. These include:
Ecology has indicated its intent to improve public involvement by
clarifying and achieving consistency and efficiency in the public
involvement process, including pursuing necessary changes to state
regulations.
Ecology has indicated that it will establish an advisory committee
comprised of representatives of key interest groups to help guide
program decisions. Initially, the advisory group will assist in the
evaluation of the permit fee system. Other topics will include: monitoring
strategies, public participation, permit prioritization systems, efficiency
measures, and alternative strategies.
I. H. 6
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Ecology is planning semi-annual regional public workshops to solicit
public input and educate the public on the permits program.
Ecology is planning to establish public Point of Contacts (one per
regional office), as well as a toll free "800" number and contacts in each
regional office so citizens can obtain information. Ecology is also
considering a menu-driven system to direct calls. Headquarters would
presumably field general questions, regional offices would handle specific
facilities, and so forth.
Ecology will develop and distribute public information documents
describing public participation and access to information sources.
The WQP will conduct informational surveys and obtain input from
permittees on permit priorities, strategic planning, and alternative
strategies.
Ecology is apparently looking into changing the fee for page copies.
Also, it plans to increase access to public information, taking out
newspaper display adds, and so forth.
Corrective Actions
1. Information Management
o Ecology should develop an adequate information management system,
especially for response to public requests for information.
2. Public Participation
o Ecology should continue to improve its public participation activities.
I. H. 7
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III. APPENDICES
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Appendix 1-1
BEFORE THE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
In Re: Petition for Corrective Action or Withdrawal of
Authority of the National Pollutant Discharge
Elimination System for the State of Washington
American Oceans Campaign, Columbia River
United, Inc., Friends of the Earth,
Greenpeace, The Mountaineers, National
Audubon Society, Inc., National Toxics
Campaign, Puget Sound Alliance, Sierra
Club, Washington Environmental Council,
Inc., Washington Toxics Coalition
Petitioners.
PETITION FOR CORRECTIVE ACTION OR WITHDRAWAL OF AUTHORITY OF THE
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMIT PROGRAM
FOR THE STATE OF WASHINGTON
May 6, 1991 VICTOR M. SHER
TODD D. TRUE
REBECCA E. TODD
Sierra Club Legal Defense
Fund, Inc.
216 First Ave. S., Suite 330
Seattle, WA 98104
(206) 343-7340
Attorneys for Petitioners
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INTRODUCTION
"Great blunders are often made, like large ropes, of a
multitude of fibers."1 Such is the case with the Washington
State National Pollutant Discharge Elimination System (NPDES)
permit program, which currently suffers from inadequacies in
every important component of the program. Indeed, the string of
failures that is the Washington NPDES program has formed a
tightening noose that threatens to strangle the water quality of
the State.
The many chronic problems plaguing the NPDES program include
the large number of expired permits and unpermitted dischargers,
the lack of toxics regulation, historic and current underfunding,
inadequate enforcement and inspection activities, and the lack of
proper data management and organization. Furthermore, despite
awareness for many years of these incapacitating problems, there
is little if any improvement within the NPDES permit program.
In order to untangle the problems in the Washington NPDES
program, pursuant to 40 C.F.R. § 123.64(b), the American Oceans
Campaign, Columbia River United, Inc., Friends of the Earth,
Greenpeace, The Mountaineers, National Audubon Society, Inc.,
National Toxics Campaign Fund, Puget Sound Alliance, Sierra Club,
Washington Environmental Council, Inc., and Washington Toxics
Coalition hereby petition the Administrator of the United States
Environmental Protection Agency (EPA) to i^sue an order
1 Victor Hugo, Les Miserables. Charles E. Wilbour,
translator.
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commencing proceedings under 33 U.S.C. § 1342(c) and 40 C.F.R. §
123.64:
(1) to compel corrective action to be taken by the State of
Washington Department of Ecology (WDOE) within a
reasonable time not to exceed 90 days, and if not
taken, to withdraw approval of the State of Washington
National Pollutant Discharge Elimination System permit
program; and
(2) to suspend all federal program grant funds available to
the State of Washington related to the Washington NPDES
program, including but not limited to funds under 33
U.S.C. § 1~256; and
(3) to require all persons within the State of Washington
discharging any pollutant to the navigable waters of
the State of Washington to apply to the EPA for an
NPDES permit within 180 days of EPA's withdrawal of
Washington's NPDES permit program authority;
(4) to determine that discharges of pollutants in
Washington State are interfering with the attainment or
maintenance of water quality, and establish or require
WDOE to establish effluent limitations for point
sources that can be expected to contribute to the
attainment or maintenance of water quality pursuant to
33 U.S.C. §§ 1312 and 1318. »
(5) to grant petitioners their reasonable costs including
attorneys' fees incurred in the preparation and
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prosecution of this petition.
Petitioners request immediate issuance of the above order to
remedy the failure of the State of Washington NPDES permit
program to comply with the requirements of the Clean Water Act
and its implementing regulations as explained more fully below.
I.
STATEMENT OF INTEREST
The American Oceans Campaign (AOC) is a non-profit
organization dedicated to restoring and conserving our nation's
marine resources. AOC was incorporated in 1987 under the laws of
the State of California, and because AOC has very recently become
a membership organization, an "accurate membership count is not
possible at this time. Activities that AOC is pursuing in
Washington with regard to water quality include the creation of a
National Coastal Caucus to provide citizen input during the Clean
Water Act reauthorization, designation of the Olympic Coast and
Northern Puget Sound as National Marine Sanctuaries, opposition
to offshore oil and gas development, and initiation of oil spill
prevention measures. The interests of AOC and its members have
been, are being, and unless the relief prayed herein is granted,
will be adversely affected by the failure of WDOE to restrict the
discharge of pollutants as required by the Clean Water Act and
implementing regulations.
Columbia River United, Inc. (CRU) is « non-profit
corporation organized in 1989, under the laws of the State of
Washington. With over 380 members, its principal place of
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business is Bingen, Washington. The members of CRU live, own
property, or recreate in the vicinity of the waters of the
Columbia River. CRU works toward comprehensive, basin-wide
strategies to protect the water quality of the Columbia River and
the health of all life dependent on it. The interests of CRU and
its members have been, are being, and unless the relief prayed
herein is granted, will be adversely affected by the failure of
WDOE to restrict the discharge of pollutants as required by the
Clean Water Act and implementing regulations.
Friends of the Earth (FOE) is a charitable organization
organized in Washington D.C. in 1974. Headquartered in Seattle,
the Northwest Regional office represents the states of
Washington, Oregon, and Idaho. FOE has worked on water issues in
the State of Washington since 1970. FOE has commented on several
Washington State/EPA Agreements concerning the delegated NPDES
program and also has filed notices of violations of NPDES permits
in Washington State. FOE has approximately 1,000 members in the
state of Washington, many of whom live in the Puget Sound area or
along other water bodies in the state. Members make use of the
aesthetic, recreational, and natural resource values of the
waters of the state of Washington. The interests of FOE and its
members have been, are being, and unless the relief prayed herein
is granted, will be adversely affected by the failure of WDOE to
restrict the discharge of pollutants as required by the Clean
Water Act and implementing regulations.
Greenpeace U.S.A. and its sister organization Greenpeace
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Action (Greenpeace) have a combined Washington State
supporteirship of at least 85,000 people, many of whom fish, swim,
and otherwise make recreational use of State waters. Greenpeace
has taken an active role over the last decade to preserve and
protect the quality of Washington State waters. These activities
have included an analysis of WDOEs NPDES permit program,
published as "License to Pollute" in 1985; comments on NPDES
permits for various industrial facilities; comments opposing
legislation not adequately protective of water quality and
supporting protective legislation; and identification of
pollution prevention measures to reduce water pollution in
Washington State. The interests of Greenpeace- and its members
have been, are being, and unless the relief prayed herein is
granted, will be adversely affected by the failure of WDOE to
restrict the discharge of pollutants as required by the Clean
Water Act and implementing regulations.
The Mountaineers is a non-profit corporation founded in 1906
and incorporated in 1913 in Washington. With over 12,000
members, headquarters are in Seattle with branch offices in
Bellingham, Everett, Tacoma, and Olympia. The purpose of the
Mountaineers is to explore and study the mountains, forests, and
watercourses of the Northwest, and to encourage their
preservation and protection. The Mountaineers has active canoe,
kayak, and sailing clubs, and publishes roar^y books regarding
water resources in the Northwest. In addition, the Mountaineers
has commented on various Federal and State water quality
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programs. The interests of the Mountaineers and its members have
been, are being, and unless the relief prayed herein is granted,
will be adversely affected by the failure of WDOE to restrict the
discharge of pollutants as required by the Clean Water Act and
implementing regulations.
National Audubon Society, Inc. (Audubon) is a non-profit
environmental organization incorporated in 1905 in New York.
Audubon has approximately 500,000 members nationwide, and
approximately 16,000 members in 25 chapters across Washington
State. Audubon actively works on preserving and protecting water
quality in Washington State. The recent oil spill prevention
bill, Audubonrs wetlands protection campaign WETNET, the creation
of the Puget Sound Water Quality Authority, and passage of 1-97
all owe at least partial success to Audubon's direct involvement.
The interests of Audubon and its members have been, are being,
and unless the relief prayed herein is granted, will be adversely
affected by the failure of WDOE to restrict the discharge of
pollutants as required by the Clean Water Act and implementing
regulations.
The National Toxics Campaign (NTC) is a non-profit
organization working to develop and implement solutions to the
toxics crisis. NTC is grassroots based, encompassing a network
of over 1,500 community, state, and regional groups and over
100,000 individual members. Incorporated ip Delaware in 1987,
NTC's national office is in Boston, Massachusetts. NTC's office
in Washington State is in Seattle and has over 60 local or state
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groups on the mailing list. NTC has produced several
publications on water quality, has worked to target industrial
dischargers into Puget Sound, and maintains the Citizen's
Environmental Testing Laboratory to provide high quality low cost
water testing for concerned citizens. The interests of NTC and
its members have been, are being, and unless the relief prayed
herein is granted, will be adversely affected by the failure of
WDOE to restrict the discharge of pollutants as required by the
Clean Water Act and implementing regulations.
Puget Sound Alliance (the Alliance) is a non-profit
organization founded in Washington State in 1984 by more than 50
Washington environmental groups and businesses for the
preservation and enhancement of Puget Sound. Protecting water
quality and enforcing the Clean Water Act are primary goals of
the 1,100 member group. Major activities have included a
citizens' wetlands monitoring program called "Wetlands Watch,"
and the Puget Soundkeeper Program consisting of regular Puget
Sound pollution patrols and citizen monitoring, as well as public
education about Puget Sound water quality issues. The interests
of the Alliance and its members have been, are being, and unless
the relief prayed herein is granted, will be adversely affected
by the failure of WDOE to restrict the discharge of pollutants as
required by the Clean Water Act and implementing regulations.
The Sierra Club, Inc. is a non-profit%corporation organized
under the laws of the State of California, with its principal
place of business in San Francisco and other offices throughout
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the nation. The Sierra Club is a conservation organization with
more than 629^000 members nationwide, including more than 15,000
in the State of Washington. The Sierra Club is dedicated to
protecting natural resources, including the waters of the state
and all that depend on them. Members of the Sierra Club live,
own property, or recreate in the vicinity of waters of the State
of Washington. The quality of the waters of Washington State
affects the health, economic, recreational, aesthetic,
scientific, and conservation interests of the Sierra Club and its
members. The interests of the Sierra Club and its members have
been, are being, and unless the relief prayed herein is granted,
will be adversely affected by the failure of WDOE to -restrict the
discharge of pollutants as required by the Clean Water Act and
implementing regulations.
Washington Environmental Council, Inc. (WEC), is a non-
profit corporation whose purpose is to advocate pollution
prevention in Washington State. WEC was founded in 1968 in the
State of. Washington and has its principal place of business in
Seattle. WEC is a statewide citizens' environmental organization
composed of 95 affiliated organizations and 1200 individual
members. Members of the WEC use the waters of the state for
fishing, boating, swimming, recreation, and other uses. WEC has
been involved in most issues relating to water pollution control
and prevention in the state, including the%formation of the WDOE
and the enactment of the Washington State Clean Water Act, the
State Environmental Protection Act, and the Model Toxics Control
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Act, among others. The interests of the Washington Environmental
Council and its members have been, are being, and unless the
relief prayed herein is granted, will be adversely affected by
the failure of WDOE to restrict the discharge of pollutants as
required by the Clean Water Act and implementing regulations.
Washington Toxics Coalition (WTC) is a non-profit
environmental organization founded in 1981 in the State of
Washington. With approximately 35 member groups and over 1,200
individual members, WTC works statewide to reduce reliance on
toxic chemicals. WTC is involved in the protection of water
quality and addresses issues such as groundwater protection and
pesticide reform as well as the use of industrial toxics and
household hazardous products. WTC routinely reviews and comments
on proposed regulations, legislation, and programs in these
areas. The interests of the Washington Toxics Coalition and its
members have been, are being, and unless the relief prayed herein
is granted, will be adversely affected by the failure of WDOE to
restrict the discharge of pollutants as required by the Clean
Water Act and implementing regulations.
II.
LEGAL AND FACTUAL BACKGROUND
A. The Legal Basis of Washington's NPDES Permit Program.
Section 402(b) of the Clean Water Act, 33 U.S.C. § 1342(b)
(the Act), authorizes the Administrator of the EPA to delegate
authority to any state to administer its own NPDES permit program
for discharges of pollutants into navigable waters within its
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jurisdiction unless the Administrator determines that the state
program lacks certain specified features. See. 33 U.S.C. §
1342(b)(1) through (9). Section 304(i) of the Act requires EPA
to establish standards and guidelines for the delegation of this
permit authority to individual states. 33 U.S.C. § 1314(i).
These agency standards and guidelines are set forth in 40 C.F.R.
Part 123.
Pursuant to these authorities, on or around November 9,
1973, the Environmental Protection Agency and Washington State
signed the Memorandum of Agreement (MOA) by which EPA approved
Washington's NPDES permit program and delegated authority to the
State to operate- the program in accordance with the requirements
of the Clean Water Act. The Memorandum of Agreement, most
recently updated on August 15, 1989, provides in pertinent part
that:
Ecology will administer the NPDES program in accordance with
section 402 of the Federal Clean Water Act[,]...applicable
State legal authority, the requirements of 40 CFR Parts 122-
125 and any other applicable Federal regulations, and the
. a-nnual State 106 program plan. Ecology has the primary
responsibility to establish State NPDES program priorities
which are consistent with national NPDES goals and
obj ectives.
Memorandum of Agreement Between the Washington Department of
Ecology and the United States Environmental Protection Agency
Region 10, dated.August 15.. 1989.- at 1, attached hereto as
Exhibit A. The MOA also contains specific mandates for the
I
operation of the NPDES program, including that WDOE will:
Develop and maintain, to the maximum extent possible, the
legal authority (including State regulations) and the
resources required to carry out all aspects of the NPDES
11
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program.
Process in a timely manner and propose to issue, reissue, or
modify all NPDES permits.
Comprehensively evaluate and assess compliance with
schedules, effluent limitations and other conditions in
permits....
Maintain a vigorous enforcement program by taking timely and
appropriate actions in accordance with the CWA....
Maintain an adequate public file at the appropriate regional
or central office....
MOA at 2..
On an annual basis WDOE and EPA enter into the State/EPA
Agreement (SEA), which renews and confirms the initial delegation
of authority contained in the Memorandum of Agreement. The SEA
for Fiscal tfear 1991 requires that WDOE implement the Efficiency
Commission recommendations regarding permit issuance and permit
fees; develop and implement a public involvement strategy for the
NPDES program; and complete all four phases of the Wastewater
Discharge Information System (WDIS) by April 30, 1991. The SEA
also notes that an unusual number of NPDES permit appeals are
anticipated, adding to WDOE's workload. See. Washington State
and Environmental Protection Agency Agreement: Fiscal Year 1991,
dated July 1990, at WQ-37 through WQ-52, pertinent pages attached
hereto as Exhibit B.
The legal authority of the Washington State Department of
Ecology to operate the water pollution control permit program is
12
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set forth in RCW 90.48.260 and WAC 173-06-010.2 The permit
program is administered by WDOE according to the terms of WAC
173-220.
B. The Failure of Washington's NPDES Permit Program.
Despite being one of the first delegated programs in the
country, the Washington State NPDES permit program is rife with
inadequacies, confusion, and failures. For years the Washington
Department of Ecology has been unable or unwilling to carry out
even a minimally adequate pollution discharge permit program.
The failings of the program are pervasive; adversely affected
components of the NPDES permit program include (1) permitting
existing dischargers and regulating toxics; (2) funding; (3)
enforcement and inspection; and (4) data management and
organization. In addition, despite WDOE's awareness for many
years of the incapacitating problems with the NPDES program,
2 RCW 90.48.260 provides:
[t]he department of ecology is hereby designated as the
State Water Pollution Control Agency for all purposes of the
federal clean water act as it exists on February 4, 1987,
and is hereby authorized to participate fully in the
programs of the act as well as to take all action necessary
to secure to the state the benefits and to meet the
requirements of that act....The powers granted herein
include, among others...the following:
(1) Complete authority to establish and administer a
comprehensive state point source waste discharge or
pollution discharge elimination permit program which will
enable the department to qualify for full participation in
any national waste discharge or pollution discharge
elimination permit system and will allow the department to
be the sole agency issuing permits required by such national
system operating in the state of Washington....
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improvement within the program is still not discernible.
The problems with Washington's NPDES permit program are not
new. Over the past half-decade, a number of reports have
documented fundamental failings in the program and have called
for significant reforms.
In 1985, Greenpeace compared existing and reissued permits
for 16 major industrial dischargers, which was published as
"License to Pollute: The National Pollutant Discharge
Elimination System in Washington State" (License to Pollute).
License to Pollute documented that 87.5% of the reissued permits
had been weakened in one pollutant category or more, and 50% had
been weakened in three pollutant categories or more. A clear
majority of the comparable permit categories were weaker in the
renewed permit. "License to Pollute: The National Pollutant
Discharge Elimination System in Washington State" prepared by
James Puckett, Ralph Dodds, and Lisa Crosby, dated May 21, 1985
at 25, pertinent pages attached hereto as Exhibit C. License to
Pollute also documented inadequate enforcement of permit limits
and minimal public participation in the NPDES program due to
deficiencies in the public notification process. License to
Pollute at 27, 25.
EPA itself has expressed concern with the number of
unpermitted water pollution dischargers in Washington State. In
response to concerns regarding the FY 86 Washington SEA, Regional
Administrator Ernesta B. Barnes stated that: "[w]e regard the
elimination of the NPDES permit backlog as a top priority, since
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permits are the foundation of water pollution control." Letter
dated June 10, 1985, to Mr. David E. Ortman, Friends of the
Earth, from Regional Administrator Ernesta B. Barnes at 1,
attached hereto as Exhibit D.
In May 1986, the Puget Sound Water Quality Authority Issue
Paper entitled Industrial and Municipal Discharges found
weaknesses in all components of the Washington National Pollutant
Discharge Elimination System program:
There is no systematic program to detect unpermitted
discharges....
Discharge permits typically include limits on only a few
contaminants, generally the conventional pollutants;-very
few permits include limits on toxicants.
...Renewed permits have sometimes included less stringent
effluent limits than the expired permits....
Twenty-four percent of major permits and 53 percent of minor
permits are expired, circumventing the review and upgrade
that is intended by the five-year term of the permit; the
backlog is not being reduced....
State ambient water quality standards include specific
standards for only six parametersall conventional
pollutantsdespite the existence of EPA guidelines for
other pollutants....
Agency resources are insufficient: Ecology cites a 1985
workload analysis showing it has resources to carry out only
24 percent of needed water quality enforcement
activities....
Inspections are generally scheduled in advance, raising
questions about the validity of the inspection. There is
very little independent verification by Ecology or EPA of
self-monitoring reports.
Despite the development of Ecology's npre stringent
enforcement policy in February 1985, 41 percent of major
dischargers statewide were in significant noncompliance at
some time during July through December 1985. Many of these
noncomplying dischargers were not subject to administrative
orders or civil penalties....
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Industrial and Municipal Discharges. Puget Sound Water Quality
Authority Issue Paper, May 1986 at vi-vii, pertinent pages
attached hereto as Exhibit E.
The Puget Sound Water Quality Authority issued the 1987
Puqet Sound Water Quality Management Plan confirming the
deficiencies in the NPDES program, and proposed an Action Plan to
address municipal and industrial discharges of pollutants, among
other Puget Sound water quality problems. The major features of
the proposed Action Plan for the NPDES program included: the
adoption of criteria for toxics, sediments, and the definition of
dilution zones; incorporation of comprehensive monitoring and
appropriate toxics limits within NPDES permits; increased
enforcement and inspection; increased funding to cover permit
related costs; increased public participation and education;
increased discovery of unpermitted discharges; the use of
certified labs; implementation of pretreatment requirements; and
the increased remediation of contaminated sites. See. 1987 Puget
Sound Water Quality Management Plan. January 1987, at xi, 5-31
through 5-49, pertinent pages attached hereto as Exhibit F.
The 1991 Puget Sound Management Plan adopted on November 21,
1990 (1991 Plan), affirms many of the problems in the NPDES
program identified in earlier Plans. For example, the 1991 Plan
concludes that the majority of permits still do not adequately
limit toxic discharges; monitoring is stil^L weak; most types of
inspections remain infrequent and all are announced; there is
still no effective program to detect unpermitted dischargers;
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self-monitoring continues to be unverified; and funding remains
below program needs. See. 1991 Puget Sound Management Plan at
207-241, pertinent pages attached hereto as Exhibit G.
The ongoing failings of the WDOE NPDES program were most
recently revealed by the Washington State Commission on
Efficiency and Accountability in Government, which published the
Department of Ecology Wastewater Discharge Permit Study in
December 1990 (Efficiency Commission Report). The Efficiency
Commission Report echoes on a statewide basis the earlier
concerns and findings of the Puget Sound Water Quality Authority,
Greenpeace, and Region 10 EPA. Specifically, the Efficiency
Commission Report concluded that:
At present, approximately 1,050 dischargers are under permit
with approximately two-thirds (664) out-of-date. Staff are
unable to keep up with renewals of existing permits and
issue new permits. The universe of unpermitted dischargers
is estimated to be approximately 10,000. With present
resources, it is unclear when or if the permit program will
ever catch up.
Revenue from current fees falls short of existing program
expenditures and well short of program needs....
[There is currently] a serious backlog of unissued or
expired permits....
Growth and change [in WDOE] have been superimposed on a
permit program that has been historically understaffed....
[There is currently] an inadequate compliance program...
[There is currently] turmoil in the program and...it [is]
difficult to find solid data to analyze
[C]urrent service will continue to be ^inadequate to meet the
state's water quality mandates....
Lacking -technical support, permits are issued with
inadequate technical content or are not issued at all....
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There is no uniform records management system to support the
maintenance and acquisition of permit material.
Department of Ecology, Wastewater Discharge Permit Study, Final
Report, December 1990, at 1-6, 51, pertinent pages attached
hereto as Exhibit H.
Two recent developments in Washington State also make it
impossible for WDOE to perform its mandatory duties with regard
to the delegated NPDES program. First, in a lawsuit brought by
three pulp and paper mills against WDOE, the Superior Court of
Washington ruled that Washington's narrative water quality
standard was unconstitutionally vague as applied to the
regulation of the priority pollutant 2,3,7,8 tetrachlorodibenzo-
p-dioxin (2,3,7,8-TCDD) . Moreover, the court enjoined WDOE from
enforcing the numeric standard for 2,3,7,8-TCDD until WDOE has
completed proper rulemaking for 2,3,7,8-TCDD. See. Simpson
Tacoma Kraft Co. et al. v. Department of Ecolocrv. Thurston County
Cause Nos. 90-2-00398-9, 90-2-00399-7, 90-2-00400-4, Memorandum
Opinion dated December 12, 1990, at 6, attached hereto as Exhibit
I. Although the case is on appeal, WDOE and the mills have
interpreted this ruling to preclude regulation of 2,3.7,8-TCDD in
NPDES permits for the period of time it takes for either
rulemaking to occur or to reach a different ruling on appeal
neither likely to be concluded within the period cf time in which
the permits are scheduled to be reissued for dischargers of
»
2,3,7,8-TCDD.
Second, the WDOE has recently entered into proposed
settlement agreements with thirteen major wastewater dischargers
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and the Northwest Pulp and Paper Association on behalf of all of
its members regarding their NPDES permits. The settlement
agreements (1) attempt to preclude citizen suits by removing
permit conditions into separate Administrative Orders; (2)
preclude reopening the permit based on oyster larvae bioassay
data, despite expected mortality; (3) do not require chronic
bioassays until 15 months after issuance of the permit; (4)
provide that sediment monitoring plans are to be submitted in 15
months for WDOE approval, with no timeframe for such approval,
and that monitoring must be completed within 12 months. A
reduced sediment monitoring plan can be approved under several
easily met exceptions; and (5) contain no provisions that WDOE
will timely approve study plans, promulgate whole effluent
toxicity standards, reopen permits or take other regulatory
action if the data so warrant, or enforce properly the permit
conditions. Under urging of environmental organizations to
reject the proposed settlement agreements, on May 6, 1991, the
non-industry parties to the proposed settlement agreements agreed
to renegotiate the oyster larvae bioassay, time delay, and
sampling components of the agreements. It is unclear what, if
any, effect such limited renegotiation will have.
In sum, the Washington State NPDES permit program suffers
from chronic and ongoing inadequacies in every important aspect
of the program. These failures include th^ high numbers of
unpermitted dischargers and expired permits, lack of toxics
regulation, the weakening of permit conditions, inadequate
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funding, enforcement, compliance, and inspection, and the
disarray of important data. Some of these failings have been
documented since at least 1985 and significant improvement does
not appear likely within the foreseeable future without EPA
involvement.
III.
GROUNDS FOR WITHDRAWING APPROVAL OF WASHINGTON'S NPDES PROGRAM
A. Statutory Basis for Withdrawal of Authority=
Section 402(c)(3) of the Clean Water Act, 33 U.S.C. §
1342(c)(3) provides that:
Whenever the Administrator determines after public
hearing that a State is not administering a program
approved under this section in accordance with the
requirements of this section, he shall so notify the
State and, if appropriate corrective action is not
taken within a reasonable time, not to exceed ninety
days, the Administrator shall withdraw approval of such
program. The Administrator shall not withdraw approval
of any such program unless he shall first have notified
the State, and made public, in writing, the reasons for
such withdrawal.
The regulations implementing this section of the Clean Water
Act provide a number of specific situations in which the
Administrator is authorized to withdraw approval of a State NPDES
permit program. Any one of these conditions constitutes a
separate and independent basis for requiring corrective action or
withdrawal of the State's authority to administer the NPDES
permit program. Such situations include when (1) the state fails
to promulgate necessary new authority; (2) the state legislature
or a court strikes down or limits necessary state authority to
administer the program; (3) the state fails "to exercise control
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over activities required to be regulated under [the permit
program], including the failure to issue permits"; (4) the state
repeatedly issues permits that do not conform to the requirements
of the Act; (4) the state permit program- fails to meet the public
participation requirements of the Act; (5) the state fails "to
act on violations of permits or other program requirements"; (6)
the state fails "to seek adequate enforcement penalties or to
collect administrative fines when imposed"; (7) the state fails
to inspect and monitor activities subject to regulation; (8) the
state's NPDES program does not comply with the terms of the
Memorandum of Agreement between that state and EPA; or (9) "the
State fails to develop an adequate regulatory program for
developing water-quality based effluent limits in NPDES permits."
See 40 C.F.R § 123.63.
As explained below, the State of Washington's NPDES permit
program fails to meet the requirements of the Clean Water Act and
its implementing regulations for continuation of the state s
authority to administer the permit program.
B. Washington State's NPDES Permit Program Fails to Meet the
Recruirements of the Law.
Washington State's NPDES permit program fails to meet the
requirements of the Clean Water Act and its implementing
regulations in at least the following ways, any one of which
would require corrective action or withdrawal of the State's
I
authority to administer the permit program. In combination,
these failings demonstrate conclusively the need for immediate
and significant corrective action, and if not undertaken,
21
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withdrawal of program authority:
(a) WDOE failed to promulgate Individual Control Strategies
(ICSs) for 2,3,7,8-TCDD for Washington State sufficient
to achieve the applicable water quality standards as
required by 33 U.S.C. § 1314(1). Columbia River United
and the Sierra Club were compelled to bring suit to
force the promulgation of ICSs in Washington State.
The failure of the State to promulgate or enact
necessary new authorities is a circumstance warranting
withdrawal of the NPDES program approval.
(b) The Thurston County Superior Court decision
invalidating the narrative water quality standard and
enjoining permit limits for 2,3,7,8-TCDD; the proposed
Settlement Agreements and Administrative Orders
regarding the thirteen dischargers and NWPPA members;
and the historic and ongoing under funding of the WDOE
are each actions by the Washington State courts or
legislature that limit the authority necessary to carry
out the NPDES program and thus require withdrawal of
authority.
(c) The large number of unpermitted dischargers and expired
permits in Washington State reveals a failure to issue
NPDES permits and exercise control over regulated
activities that requires withdrawal of authority-
(d) The proposed Settlement Agreements and Administrative
Orders complicate citizen involvement and the ability
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to get information, the Wastewater Discharge
Information System is currently in Phase I despite the
SEA requiring completion of Phase IV by April 30, 1991,
and routine requests for information are often
unfulfilled due to poor data management or the complete
lack of data. These failures to comply with public
participation requirements require that the EPA
withdraw program approval.
(e) The State's failures to take adequate and timely
enforcement actions and to seek and collect adequate
penalties are failures to act on violations of permits
or other program requirements that require withdrawal
of authority.
(f) The lack of regular frequent inspection and the
complete lack of unannounced inspections is a failure
to inspect or monitor regulated activities that
requires withdrawal of authority.
(g) As required by the Memorandum of Agreement, WDOE has
not developed and maintained legal authority and
resources to carry out all aspects of NPDES program;
issued, reissued, or modified in a timely manner all
NPDES permits; comprehensively assessed compliance with
permit conditions; taken timely and appropriate
enforcement actions; or maintained an adequate public
file, all of which requires EPA to- withdraw approval
for the NPDES program.
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(h) As discussed above, the failure of WDOE to promulgate
adequate ICSs reveals a failure to develop water
quality based effluent limits that requires withdrawal
of program approval.
In sum, for at least the last seven years the State of
Washington's NPDES permit program has suffered from chronic and
uncorrected inadequacies in every important aspect of the
program, including permitting existing dischargers and regulating
toxics, funding, enforcement and inspection, data management and
organization, and the improvement of program scope and
capabilities. There is no evidence that these serious defects
will be corrected by the State. Accordingly, as required by
section 402(c) of the Clean Water Act, after determining that the
State is not administering the program properly, the EPA must
compel corrective action to be taken by WDOE within 90 days. If
corrective action is not so taken, EPA must withdraw the State's
authority to administer the NPDES permit program and must resume
administration of that program itself.
CONCLUSION
Washington's NPDES permit program seriously and
substantially fails to comply with the requirements for a
delegated state program pursuant to the Clean Water Act and its
implementing regulations. On behalf of the» organizations
identified above, we petition you to immediately compel
corrective action of the WDOE, and, if such action is not
24
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undertaken within 90 days, to withdraw your delegation of
authority to the State of Washington to operate an NPDES permit
program under § 402 of the Clean Water Act.
DATED: This 6th day of May, 1991.
Respectfully submitted,
VICTOR M. SHER
TODD D. TRUE
REBECCA E. TODD
Sierra Club Legal Defense
Fund, Inc.
216 First Ave. S., Suite 330
Seattle, WA 98104
(206) 343-7340
Attorneys for Petitioners
cc:
William K. Reilly, Administrator EPA
Dana Rasmussen, Region X Administrator
Marian Atkinson, Region X Hearings Officer
Christine Gregoire, Director; Department of Ecology
Carol Jolly, Assistant Director Water and Shorelands
Michael Llewellyn, Department of Ecology
Nancy McKay, Executive Director, Puget Sound Water Quality
Authority
Kenneth Eikenberry, Attorney General
Booth Gardner, Governor
25
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Appendix 1-2
SUMMATION OF PUBLIC WORKSHOPS
The Environmental Protection Agency held initial meetings with the petitioners and
Ecology to discuss the allegations and EPA's proposed approach for reviewing the state's
NPDES program. During its meeting with the petitioners, EPA was asked to solicit
additional input to the allegations from a variety of citizens around the state. In order to
gather that input, EPA held four informal public workshops in; Port Angeles and Spokane
on August 13, 1991, and Seattle and Vancouver on August 14, 1991. The workshops
were attended by approximately 40 individuals in Spokane; 19 in Port Angeles, 19 in
Vancouver, and 60 in Seattle. Attendees represented environmental groups, industry, and
state and local agencies. EPA received both oral and written comments which were
incorporated into the administrative record. Additionally, the workshop process included
a written comment period until August 31 during which EPA received over 25 comment
letters from individuals, environmental groups, and industries. The comment period was
informally extended to September 30 as result of numerous requests. Each of the
proceedings were also tape recorded and the recordings were added to the administrative
record. The following is a listing of some of the issues raised at the workshops:
Many expressed concern over the large number of unpermitted and expired
permits reported in the Efficiency Commission Report and asked that EPA
evaluate the significance of the types of dischargers in these categories.
The review team was asked to evaluate the number of compliance
inspections conducted by the state and determine the number of
unannounced inspections. Many were critical of Ecology's lack of
unannounced inspections, however, one individual representing his own
company stated that Ecology had conducted unannounced inspections at
his facility.
Ecology was criticized for not adopting health based criteria.
EPA was asked to evaluate Ecology's penalty policy and determine if
penalties had been inappropriately reduced through negotiations.
Individuals at all four workshops expressed concern over Ecology's public
participation process associated with NPDES permit issuance. Others
expressed frustration over not being able to receive information regarding
specific permits and stated that Ecology is generally unresponsive to
informational requests.
-------
Many were concerned that if the program was withdrawn from Ecology,
EPA would lack the resources to effectively run the program. Some believed
that Ecology should correct identified problems and carry on with
implementing the program.
It was stated that Ecology should implement the recommendations contained
in the Puget Sound Water Quality Management Plan and that federal and
state actions should be consistent with that plan.
Many commenters requested that interested citizens be able to participate
with EPA and Ecology in the development of a Corrective Action Plan. Some
doubted that an adequate plan could be developed without citizen
involvement.
It was stated that Ecology was allowing too many open-ended deadlines
in its permits and that there were too many delays in requiring whole effluent
toxicity testing.
EPA was asked to describe its performance in issuing NPDES permits in the
other two non-delegated states. EPA was also criticized for having a
backlog of NPDES permits.
Ecology was criticized for not fully recovering the cost of issuing permits
through its permit fee system.
It was stated that EPA should use the Efficiency Commission Report, the
Puget Sound Water Quality Management Plan and License to Pollute
(Greenpeace 1985) in its evaluation of Ecology's Program.
Many questioned the status of Ecology's Permit Writer's Manual and stated
that development/publication of the manual was far behind schedule.
Some attendees were concerned over the cost efficiency of Ecology's
program.
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Appendix 1-3
United States Reaion 10
Environmental Protection , |QO Sixth Avenue Idaho
Seattle WA 98101 Oregon
. Washington
£EPA
JAN 1 0 1992
Reply To
Attn Of: WD-085
Rebecca Todd
Sierra Club Legal Defense Fund, Inc.
216 First Avenue South, Suite 330
Seattle, Washington 98104
Dear Ms. Todd:
Please find enclosed a copy of the Summary of Findings of
our informal investigation to the May 6, 1991, petition for
corrective action or withdrawal of authority of the National
Pollutant Discharge Elimination System (NPDES) program for the
state of Washington. The report is currently undergoing final
Environmental Protection Agency (EPA) review and is expected to
be released by the end of the month. While the entire audit has
taken longer than anticipated, I believe it is a thorough and
objective investigation of Washington's NPDES program.
EPA's regulations allow the Agency to initiate an informal
investigation of the allegations contained in the petition. EPA
would then determine if cause exists to commence formal
withdrawal proceedings. On July 3, 1991, the Assistant
Administrator for Water, LaJuana S. Wilcher, announced her
decision to commence the informal investigation.
On August, 20-22, 1991, EPA conducted a three-day on-site
audit of Ecology's NPDES program. EPA interviewed Ecology staff
and management; reviewed program files; and evaluated relevant
documents regarding permit development and issuance, compliance
activities, enforcement, information systems, organization and
management, and pretreatment.
The audit team, consisting of EPA Headquarters staff and
staff from our Regional Office, have concluded that Ecology is
committed to implementing a quality NPDES program. The audit
team found some problems with the program, but are confident that
these problems can be corrected. We believe that the most
effective means for resolving these problems would be for Ecology
and EPA to enter into an agreement that addresses the corrective
actions listed in the report. Therefore, we have decided to
defer our decision on whether to commence formal withdrawal
proceedings to allow Ecology time to respond to our report by
submitting a Corrective Action Plan (CAP).
We are requiring Ecology to submit a CAP to us by
April 30, 1992. We recommend that the CAP be subject to a public
participation process. As a suggestion, Ecology might consider
using the existing Permit Advisory Committee as a forum for
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preparing the CAP or other comparable processes. Additionally,
the CAP must contain specific actions, milestones, and final
dates for the corrective actions to take place. EPA is prepared
to work closely with Ecology to develop and implement the CAP.
Again, we intend to release the final report by the end of
the month. Please contact me if you have any questions.
Sincerely,
Dana A. Rasmussen
Regional Administrator
Enclosures
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United States Region 10 Alaska
Environmental Protection 1200 Sixth Avenue Idaho
Agency Seattle WA 98101 Oregon
Washington
&EPA
JAN 1 0 1882
Reply To
Attn Of: WD-085
Christine Gregoire, Director
Washington Department of Ecology
M/S PV-ll
Olympia, Washington 98504
Dear Ms. Gregoire:
Please find enclosed a copy of the Summary of Findings of
our informal investigation to the May 6, 1991, petition for
corrective action or withdrawal of authority of the National
Pollutant Discharge Elimination System (NPDES) program for the
state of Washington. The report is currently undergoing final
Environmental Protection Agency (EPA) review and is expected to
be released by the end of the month. While the entire audit has
taken longer than anticipated, I believe it is a thorough and
objective investigation of Washington's NPDES program.
EPA's regulations allow the Agency to initiate an informal
investigation of the allegations contained in the petition. EPA
would then determine if cause exists to commence formal
withdrawal proceedings. On July 3, 1991, the Assistant
Administrator for Water, LaJuana S. Wilcher, announced her
decision to commence the informal investigation.
On August, 20-22, 1991, EPA conducted a three-day on-site
audit of Ecology's NPDES program. EPA interviewed Ecology staff
and management; reviewed program files; and evaluated relevant
documents regarding permit development and issuance, compliance
activities, enforcement, information systems, organization and
management, and pretreatment.
The audit team, consisting of EPA Headquarters staff and
staff from our Regional Office, have concluded that Ecology is
committed to implementing a quality NPDES program. The audit
team found some problems with the program, but are confident that
these problems can be corrected. We believe that the most
effective means for resolving these .problems would be for Ecology
and EPA to enter into an agreement that addresses the corrective
actions listed in the report. Therefore, we have decided to
defer our decision on whether to commence formal withdrawal
proceedings to allow Ecology time to respond to our report by
submitting a Corrective Action Plan (CAP).
We are requiring Ecology to submit a CAP to us by
April 30, 1992. We recommend that the CAP be subject to a public
participation process. As a suggestion, Ecology might consider
using the existing Permit Advisory Committee as a forum for
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preparing the CAP or other comparable processes. Additionally,
the CAP must contain specific actions, milestones, and final
dates for the corrective actions to take place. EPA is prepared
to work closely with Ecology to develop and implement the CAP.
Again, we intend to release the final report by the end of
the month. Please contact me if you have any questions.
Sincerely,
Dana A. Rasmussen
Regional Administrator
Enclosures
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Un-ted States Reg -- Alaska
Environmental Protection 1200 Sixth Avenue Idaho
A9ency Seattle WA 98101 Oregon
Washington
f/EPA
M*.3 3 1991
Reply To
Attn Of: WD-139
Christine Gregoire, Director
Washington Department of Ecology
Mail Stop PV-ll
Olympia, Washington 98504
Dear Ms. Gregoire,
I have enclosed the Environmental Protection Agency's (EPA)
notice of final decisions for the state of Washington's lists
developed and submitted to EPA under section 304(1) of the Clean
Water Act. In addition to issuing final decisions on the listing
actions EPA proposed on June 9, 1989, I am proposing to add one
waterbody to the lists of impaired waterbodies, including the
section 304(1)(1)(B) list (the "short" list), and one source to
the section 304(1)(1)(C) list.
I am also conditionally approving individual control
strategies (ICSs) for eight facilities. The specific conditions
on which they are approved are outlined in the notice.
Our actions are summarized below:
List Action
304(1)(1)(A)(i) Approve the final list as submitted
by the state on March 16, 1989.
304(1)(1)(A)(ii) Approve the final list as submitted
by the state on March 16, 1989.
Propose to add Port Angeles Harbor.
304(1)(1)(B) List six waterbodies and propose to
add Port Angeles Harbor. Delete
six waterbodies from the list
presented by EPA for public comment
on June 9, 1989.
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304(l)(l)(C) List 10 sources and propose to add
ITT Rayonier Co. in Port Angeles.
Delete all sources associated with
the six waterbodies deleted from
the 304(1)(1)(B) list.
304(1)(1)(D) Conditionally approve individual
control strategies for eight pulp
and paper mills.
As you are aware, all sources on the final section
304(1)(1)(C) list require individual control strategies. My
staff will continue working closely with your Department to
finalize permits.
As a result of EPA's proposed addition to the waterbody and
source lists, EPA will begin a 30-day public comment period only
on the proposed additions. All other listing decisions are final
Agency actions. The public comment period on the proposed
additions will end on April 15, 1991.
We appreciate the efforts of the state in developing these
lists. If you have any questions concerning this notice, please
call me or have your staff contact Judith Leckrone of the Office
of Water Planning, Water Quality Section, at (206) 553-6911.
Sincerely,
Dana A. Rasmussen
Regional Administrator
Enclosure
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U.S. ENVIRONMENTAL PROTECTION AGENCY
REGION 10
1200 SIXTH AVENUE
SEATTLE, WASHINGTON 98101
I. NOTICE OF THE UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY'S DECISIONS ON THE LISTING OF WATERS, POINT SOURCES
AND POLLUTANTS FOR THE STATE OF WASHINGTON UNDER SECTION
304(1) OF THE CLEAN WATER ACT AS AMENDED BY THE WATER
QUALITY ACT OF 1987
II. DESCRIPTION OF SECTION 304(1) REQUIREMENTS:
Section 304(1) of the Clean Water Act (the Act) as amended
by the Water Quality Act of 1987 required every state to develop
lists of impaired waters, identify certain point sources and
amounts of pollutants causing toxic impact, and develop
individual control strategies for each identified point source.
Section 304(1) required the state to submit four lists. The
first list must include waters which, after application of the
technology-based requirements of section 301(b)(2) of the Act,
cannot reasonably be expected to attain or maintain certain state
numeric water quality standards (those developed in accordance
with section 303(c)(2)(B) of the Act) for the toxic pollutants
listed under section 307(a) of the Act. (Paragraph (A)(i) of
section 304(1) required this list.)
The second list must include all waters which, after
application of the technology-based requirements of section
301(b)(2) of the Act, cannot reasonably be expected to attain or
maintain water quality standards for any conventional,
nonconventional or toxic pollutant due to any point or nonpoint
source of pollution; this list must also include waters
classified for uses not meeting the fishable or swimmable goals
of the Act. (Paragraph (A)(ii) of section 304(1) required this
list.)
The third list must include waters not meeting numeric or
narrative water quality standards for the toxic pollutants listed
under section 307(a) of the Act due entirely or substantially to
discharges from point sources. (Paragraph (B) of section 304(1)
required this list, which is often referred to as the "short"
list.)
The fourth list is a list of point sources preventing or
impairing water quality by discharging the section 307(a)
pollutants into listed waters. This list of point sources must
include the amount of the 307(a) toxic pollutant which the point
source discharges into the water. Pursuant to EPA regulations,
the state must develop and submit an individual control strategy
for each point discharging to a water on the paragraph (B) list.
The individual control strategy must be a draft or final National
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Pollutant Discharge Elimination System (NPDES) permit. (40 CFR
123.46(c)) The individual control strategy must be designed to
ensure that applicable water quality standards are achieved no
later than three years after the establishment of the individual
control strategy.
The deadline for submitting the lists of waters, point
sources, amounts of pollutants and the individual control
strategies by each state to the United States Environmental
Protection Agency (U.S. EPA) was February 4, 1989. The state of
Washington initially submitted its lists of point sources and
control strategies to U.S. EPA, Region 10, on March 16, 1989. On
June 9, 1989 the state added a number of waterbodies and sources
to the list.
Not later than 120 days after the deadline for submitting
the lists and individual control strategies to the U.S. EPA, the
U.S. EPA was to approve or disapprove the lists and control
strategies. If a state failed to submit a list or control
strategy, or the U.S. EPA did not approve a list or control
strategy, the U.S. EPA, in cooperation with the state and after
opportunity for public comment, must develop the lists and
control strategies.
The U.S. EPA, Region 10, issued a decision on June 9, 1989,
that approved in part, and disapproved in part, the state of
Washington's submissions under section 304(1). The three lists
of impaired waterbodies and the list of sources were approved as
submitted. The individual control strategies for all but one of
the sources were disapproved because they either did not consist
of a draft or final NPDES permit, or because they consisted of an
NPDES permit lacking any documentation that the pollutant(s)
impairing the waterbody were adequately controlled.
Notice of the U.S. EPA, Region 10, decisions regarding
Washington's section 304(1) lists was published in local
Washington newspapers on June 26, 1989. This initiated the
120-day public comment period during which the public could
comment on the U.S. EPA's actions and could petition to add
waters or sources to Washington's lists. The public comment
period ended on October 24, 1989.
After the end of the comment period Washington, in close
consultation with EPA, worked to develop individual control
strategies for the listed point sources. In August and
September, 1990 Washington submitted to EPA draft permits as
individual control strategies for some of the listed point
sources. The state solicited public comments on these draft
permits through October of 1990. Since the submission of the
draft permits, the state has worked cooperatively with the EPA
toward the goal of issuing the final permits by June 4, 1991.
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However, on December 11, 1990 the Superior Court of the
State of Washington for Thurston County decided that the state's
use of its narrative water quality criterion to list three paper
mills under section 304(1) and to propose permits for them was
constitutionally invalid under the state constitution. Simpson
Tacoma Kraft Company v. Department of Ecology. Nos. 90-2-00398-9
(Sup. Ct. County of Thurston, Dec. 11, 1990) . Thus the court
invalidated the listing and enjoined the state of Washington from
using the narrative criterion to develop final permit limits for
three millsfor the moment prohibiting the state from imposing
water quality-based limitations.
Since the opinion was filed, the U.S. EPA has consulted with
the state of Washington, including its Attorney General]s office
and the Department of Ecology., to seek the state's opinion of
what impact the Superior Court's decision will have on the
state's and on EPA's authority to issue final permits. In
addition, the U.S. EPA has discussed whether the state will seek
appellate review of the decision.
After careful consideration, EPA decided to proceed with
today's decisions both to list certain waterbodies and sources
and to approve several individual control strategies. EPA's
reasoning for both of these decisions is set out below.
EPA decided to proceed with the listing decision because
both the content of the decision and the public participation
procedures for them would have been the same whether the state or
EPA had listed the waters, making the state court's invalidation
of the listing decision irrelevant. At this point it would serve
no purpose, excepting delay, to provide a new notice of proposed
decisions as though the state had never submitted the lists.
EPA's regulations regarding notice and comment under section
304(1) (40 CFR 130.10(d)(10)), as well as the underlying finding
in the listing decisions is the same whether the state submitted
the lists or not. Therefore, the U.S. EPA has concluded that the
approval process for each of the waters and point sources on the
Washington section 304(1) lists is the constructive equivalent of
a U.S. EPA listing.
The U.S. EPA decided to conditionally approve the draft
permits as individual control strategies despite the court's
injunction because the U.S. EPA continues to believe that
Washington can issue the permits by the U.S. EPA's deadline of
June, 1991. The State has appealed the decision of the Superior
Court, and will request that the injunction be lifted.
Furthermore, there are other possible options, including adoption
of a numeric water quality criterion, that the state could
exercise to ensure that adequate permits are issued. Therefore,
EPA believes that the state will make every effort to issue
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the permits by June, 1991. Until the U.S. EPA is convinced
otherwise, we plan to continue to allow the state to retain its
normal permitting authority.
There remains the questions of the appropriate water quality
standard to use in the face of the Simpson Tacoma v- Department
of Ecology decision. The U.S. EPA's interpretation of the court
opinion is that the court did not invalidate the narrative water
quality criterion itself, it simply invalidated its application
in this case. Washington's narrative water quality standard
prohibits levels of toxic pollutants which "may adversely affect
characteristic water uses, cause acute or chronic conditions to
the aquatic biota, or adversely affect public health." The
Washington Administrative Code (WAG 173-201047(3) specifically
states that acceptable levels of toxic substances not
specifically assigned a numeric criteria in Washington's
standards "shall be determined in consideration of U.S. EPA's
Water Quality Criteria for Water. 1986, and as revised, and other
relevant information as appropriate." EPA approved this
narrative water quality standard pursuant to section 303 of the
Clean Water Act. Therefore, the U.S. EPA believes that it is
appropriate to continue to rely on Washington's adopted and
approved narrative water quality criterion as a basis for listing
and implementation of individual control strategies in
Washington.
III. U.S. EPA18 FINAL DECISIONS WITH RESPECT TO LISTS OF WATERS,
POINT SOURCES, AND POLLUTANTS:
The Section 304(1)(1)(A)(i) List
The U.S. EPA previously approved the state of Washington's
list of waters required by section 304(1)(1)(A)(i) of the Act.
The U.S. EPA's final decision is to reaffirm the state of
Washington's listing of these 63 waterbodies as submitted on
March 16, 1989.
The section 304(1)(11(A)(ii) List
The U.S. EPA reaffirms the state of Washington's March 16,
1989 submission of its section 304(1)(1)(A)(ii) list of 208
waterbodies because the listed waterbodies meet the established
criteria.
The U.S. EPA is adding the following waterbody to the list
required by paragraph (A)(ii):
Port Angeles Harbor (WA-18-0020). The basis for this
decision is that all waters included on the list required by
section 304(1)(l) (B) qualify for inclusion on the section
304(1)(A)(ii) list and Port Angeles Harbor is being added
today to the Section 304(1)(1)(B) list. (See below.)
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The Section 3O4(l)(l)fBi
The U.S. EPA has made a final decision to retain the
following vaterbodies on the paragraph (B) list:
Waterbodv Name
Columbia River
Columbia River
Port Gardner/Everett Harbor
Inner Grays Harbor
Longview Ditches
Outer Commencement Bay
WA. Waterbodv
ID NO.
WA-CR-1010
WA-CR-1025
WA-07-0010
WA-22-0030
WA-25-5010
WA-10-0010
Pollutant
2378-TCDD
2378-TCDD
2378-TCDD
2378-TCDD
Cd, Cn, Cu, Pb,
Zn
2378-TCDD
The U.S. EPA has made a final decision to delete the
following waterbodies from the paragraph (B) list.
City Waterway
Duwamish Waterway & River
Inner Bellingham Bay
Inner Commencement Bay
Lake Union
Sinclair Inlet
WA-10-0030
WA-09-1010
WA-01-0050
WA-10-0020
WA-08-9340
WA-15-0040
The U.S. EPA is proposing to add the following waterbody to
the paragraph (B) list due to exceedances of the applicable
standard for 2378-TCDD, and is soliciting comment on this
proposal. See Section V. of this notice for additional
information.
Port Angeles Harbor
WA-18-0020
The Section 304 mm (C) List
The U.S. EPA has made a final decision to retain the
following point sources on the paragraph (C) list:
Industrial, Municipal and Federal Dischargers
Name. Location, and NPDES NO.
Boise Cascade, Wallulla
Columbia River
WA-000369-7
ITT Rayonier Inc, Hoquiam
Inner Grays Harbor
WA-000307-7
Pollutant(s) and Amount
2378-TCDD 360 ppq effluent
56 ppq pulp
70 ppq sludge
2378-TCDD
23 ppq effluent
47 ppq sludge
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James River II, Camas
Columbia River
WA-000025-6
Longview Fibre, Longview
Columbia River
WA-000007-8
Reynolds Metals Co., Longview
Longview Ditches
WA-000008-6
Simpson Tacoma Paper Co., Tacoma
Outer Commencement Bay
WA-000085-0
Weyerhaeuser Co., Longview
Columbia River
WA-000012-4
Weyerhaeuser Co., Everett
Port Gardner
WA-000300-0
Weyerhaeuser Co., Cosmopolis
Inner Grays Harbor
WA-000080-9
Weyerhaeuser Wood Products Div.
Longview Ditches
WA-003918-7
The D.S. EPA is proposing to
to the paragraph (C) list, and is
proposal. See Section V. of this
information.
2378-TCDD 12 ppq sludge
12 ppq pulp
2378-TCDD 60 ppq sludge
4.8 ppq pulp
Cyanide 270 ug/1 effluent
2378-TCDD
2378-TCDD
2378-TCDD
2378-TCDD
Copper
Lead
Mercury
Zinc
39 ppq sludge
12 ppq pulp
10 ppq effluent
25 ppq sludge
7.7 ppq pulp
33 ppq effluent
5.2 ppq pulp
9.7 ppq effluent
12 ppq sludge
1.5 Ib/day
1.5 Ib/day
.04 Ib/day
6.1 Ib/day
add the following point source
soliciting comment on this
notice for additional
Industrial. Municipal and Federal Discharqers
Name. Location, and NPDES NO.
ITT Rayonier Inc, Port Angeles
Port Angeles Harbor
WA-0000795
Pollutant and Amount
2378-TCDD
22 ppq effluent
47 ppq sludge
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The U.S. EPA has made a final decision to delete the
following point sources from the paragraph (C) list:
Industrial. Municipal and Federal Dischargers
Name. Location
and Receiving
Bellingham Sewage Treatment Plant
Inner Bellingham Bay
Bremerton Sewage Treatment Plant
Sinclair Inlet
Georgia Pacific, Bellingham
Inner Bellingham Bay
Paine Field Industrial Sources
Port Gardner /Everett Harbor
Port Orchard/KCSD No. 5 WWTP
Sinclair Inlet
Puget Sound Naval Shipyard
Sinclair Inlet
Renton Sewage Treatment Plant
Elliott Bay
Scott Paper Co . , Everett
Port Gardner /Everett Harbor
United Marine Shipbuilding Inc., Seattle
Lake Union
NPDES NO.
(If applicable)
WA-002374-4
WA-002928-9
WA-000109-1
WA-002034-6
WA-000206-2
WA-002958-1
WA-000062-1
WA-003086-4
Storm drains (SD1. Combined Sewer Overflows (CSO) and Receiving
Waterbodv
Metro and City of Seattle
Combined Sewer Overflows
Everett CSO (EO11)
Lake Union
Pt Gardner/Everett Harbor
The storm drains (SDs) and combined sewer overflows (CSOs) listed
below discharge into the Duwamish Waterways or River
(M=Metro; S=City of Seattle)
(S) 16th Avenue SW CSO/SD (104)
(M) Brandon CSO (W041)
(M) Chelan CSO (W036)
(M) Diagonal Way CSO (111)
(S) Duwamish SD
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(S) Fox Avenue S. CSO/SD (116)
(M) Hanford 1 CSO (W031)
(M) Hanford 2 CSO (W032)
(S) Isaacson CSO (156)
(M) Lander CSO (W030)
(M) Michigan CSO (W039)
(S) S. Hinds CSO (107)
(S) S. Nevada SD
(S) Slip 4, Sanitary Sewer Emerg.
and Lift Station Emergency
Overflow/ Storm Drain (117)
(S) SW Hanford CSO/SD (162)
(S) SW Florida CSO/SD (106)
(S) SW Lander CSO/SD (105)
(S) SW Spokane CSO (163)
Boeing Commercial Airplane,
North Field
Marine Power and Equipment WA-003089-9
Meltec - A Division of
Young Corporation
Mono Industrial Roofing Co.
Pacific Wire Works Inc.
Port of Seattle, Terminal 5
Portac Inc. log sort yard
Seafab Metal Corp.
Seattle Iron & Metals
Todd Pacific Shipyards WA-000261-5
Wyckoff Company
The storm drains listed below discharge into
Inner Commencement Bay
BC-124, 12 inch pipe, Blair Waterway
BC-125, (5 pipes), Blair Waterway
BN-103, Lincoln Avenue Drain, (north)
BS-135, Lincoln Avenue Drain, (south)
BW-130, Blair West Drain
HY-028, Morningside Ditch
HY-043, 10" PVC Pipe
HK-052, Kaiser Ditch
HY-054, East Channel Ditch
HY-063, 18" steel pipe
HY-065, 6" and 18" pipes
B & L Enterprises Landfill
Cascade Timber Co. #1 log sort yard
Cascade Timber Co. #2 log sort yard
Louisiana Pacific Corp. log sort yard
Murray Pacific #1 log sort yard
Murray Pacific #2 log sort yard
Pennwalt Corp. (Now called ATOCHEM)
8
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Tacoma Boatbuilding (HY-36)
Wasser Winter log sort yard
Weyerhaeuser log sort yard
3009 Taylor Way log sort yard
IV. INDIVIDUAL CONTROL STRATEGIES
As discussed above, because the U.S. EPA disapproved the
individual control strategies (ICSs) submitted by the state of
Washington in May 1989, the U.S. EPA was to develop the control
strategies in cooperation with the state. Because the state has
developed draft permits for each facility on the Section
304(l)(l)(C) list which will ensure that water quality standards
are met within three years, the U.S. EPA is conditionally
approving the ICSs for the following facilities. Today's
approval constitutes establishment of each of these ICSs.
Approval of each ICS is based on the following conditions,
which if not met could result in the U.S. EPA withdrawing
approval.
1) The ICS must be revised to include a compliance date set for
three years from the establishment of the ICS, i.e. three years
from today's date.
2) The ICS must be issued as a final NPDES permit by
June 4, 1991.
Name and Location of Facility NPDES NO. Pollutant(s)
Boise Cascade, Wallulla WA-000369-7 2378-TCDD
ITT Rayonier Kraft Mill, Hoquiam WA-000307-7 2378-TCDD
James River II, Camas WA-000025-6 2378-TCDD
Longview Fibre, Longview WA-000007-8 2378-TCDD
Simpson Tacoma Kraft Mill, Tacoma WA-000085-0 2378-TCDD
Weyerhaeuser Kraft Mill, Longview WA-000012-4 2378-TCDD
Weyerhaeuser Kraft Mill, Everett WA-000300-0 2378-TCDD
Weyerhaeuser Kraft Mill, WA-000080-9 2378-TCDD
Cosmopolis
The U.S. EPA will continue to work with the State of
Washington on completing the individual control strategies for
the remainder of the facilities listed on the section
304(1)(1)(C) list and will provide notice as appropriate.
V. PUBLIC COMMENT AND REQUESTS FOR FUTURE HEARING:
Where the U.S. EPA is making final decisions on the listing
of waterbodies and sources, no further public comment or requests
for hearing are solicited. However, public comments are being
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solicited on the U.S. EPA's proposals to add the Port Angeles
Harbor to the paragraph (B) list and the ITT Rayonier Kraft mill
to the paragraph (C) list. All persons who believe the proposed
additions to the lists are inappropriate must raise all issues
and submit all available arguments by April 15, 1991, to the U.S.
EPA, Region 10, WD-139, 1200 Sixth Avenue, Seattle, Washington,
98101, addressed to the attention of Dana Rasmussen, Regional
Administrator.
Any person may make a request to the Regional Administrator
for a public hearing to consider these proposed listing
additions. Such requests should be made in writing prior to the
above date, and should state the nature of the issues proposed to
be raised in the hearing. A public hearing may be held after at
least 30 days public notice whenever the Regional Administrator
finds that response to this notice indicates significant public
interest.
VI. PETITIONS TO ADD WATERS AND DISCHARGERS:
Because a 120-day public comment period, including an
opportunity to petition to add waters and sources to the lists,
has already occurred, the U.S. EPA is not accepting further
petitions to add to the lists.
VII. U.S. EPA'S RESPONSE TO COMMENTS:
The Regional Administrator has considered all petitions and
comments received after the June 26, 1989, notice and has
provided a written response to these comments and petitions.
This response to comments and petitions is available to the
public, and can be obtained by contacting the person named at the
end of this notice.
Following the close of the comment period on the proposal to
add a waterbody and a source to the section 304(1) lists, and
after a public hearing, if such a hearing is held, the Regional
Administrator will issue a supplemental response to comments.
This supplemental response to comments will address only the
comments received on today's proposed additions to the section
304(1) lists.
VIII. ADDITIONAL INFORMATION ABOUT THE U.S. EPA'S DECISIONS UNDER
SECTION 304(1):
The administrative record containing the U.S. EPA's
documentation on its decisions is on file and may be inspected at
the U.S. EPA, Region 10, office between the hours of 9:00 a.m.
and 4:00 p.m., Monday through Friday, except holidays. To make
arrangements to examine the administrative record, contact the
10
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person named at the end of this notice.
For additional information about section 304(1), see the
final regulations under section 304(1) published in the Federal
Register of June 2, 1989 (54 Fed Reg 23868), and U.S. EPA's
publication Final Guidance for Implementation of Requirements
Under Section 304 m of the Clean Water Act as Amended (March
1988).
Copies of these documents and of section 304(1) of the CWA
may be obtained by writing or calling the U.S. EPA contact person
below.
Judith Leckrone
Office of Water Planning, WD-139
U.S. EPA, Region 10
1200 Sixth Avenue
Seattle, Washington 98101
Telephone (206) 553-6911
Dana Rasmussen
Regional Administrator
Date
11
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Appendix II-C-2
DRAFT
PRELIMINARY FINDINGS
WASHINGTON STATE NPDES AUDIT
PERMIT QUALITY REVIEW
DATE: August 20-2.2, 1991
LOCATION: Olympia, WA
PARTICIPANTS: OWEC Permits Div: Mary Ann Stumbaugh
Pat Bradley
EPA Region 10: Amber Wong
PERMIT PILES REVIEWED: Industrials; Municipals;
Texaco Anacortes Federal Way Water &
Sonoco Sewer District
Kalama Chemical City of Richland
Atochem City of Chehalis
Intalco Aluminum City of Pullman
Ponderay Newsprint
BACKGROUND
All permits reviewed had a table of contents and a summary
of scheduled activities and/or report submittals (such as
conducting chemical analysis of effluent or submitting DMRs.
Organization of information within each permit varied some
from permit to permit. All permits contained sections on
special conditions and general conditions; some permits were
further subdivided into effluent limitations and monitoring
requirements, reporting requirements, other requirements,
and protocols and QA/QC methods. (Specific titles and
contents of permit sections also varied.)
According to staff, DOE uses a computerized "permit shell,"
providing a framework for writing a permit.
Permits are written by six different Regional (within the
State) offices: Industrial permitting office, Union Bay
action team (UBAT), northwest regional office (NWO),
southwest regional (SWO), northeast regional (NEO), and
southeast regional (SEO). The industrial permitting office
writes the permits for the major industries in the State:
aluminum smelters, refineries, pulp & paper facilities. The
UBAT office writes permits for facilities that discharge
into Union Bay. The other four offices duties are divided
geographically. There is apparently no formal assignment or
tracking system to account for specific permits. (For
example, a discharge from an aluminum smelter to Union Bay
would probably by written by UBAT, but in some cases maybe
by the IO.)
-------
APPLICATION FORMS
DOE uses NPDES application forms 1, 2C, A, and short form A.
The most recent application form(s) for each facility was
found in each file.
Applications for most facilities reviewed were submitted
approximately six months prior to permit expiration. One
facility (Kalama Chemical) submitted an application form
after the expiration date of the previous permit (the
application was public noticed).
None of the files reviewed indicated any notification to
permittees regarding the need to submit an application.
(i.e. a reminder that the permit will expire in months.)
PUBLIC NOTICE
Every file reviewed had documentation of public notice,
including the newspaper clipping (original or xerox) and an
affidavit of publication. (One file had only a typed copy
of the newspaper notice.)
Permittees are responsible for providing public notice, and
must send proof to DOE. Some files contained letters from
DOE to the permittee when proof of public notice was late.
Most of the industrial files reviewed included extensive
mailing lists for public notice. None of the municipal
files reviewed included mailing lists.
Instead of announcing the "opportunity to request public
hearing," most newspaper notices stated that the Director
"may hold a public hearing if there is significant.
interest." In two cases (Intalco and Texaco), a date for a
public hearing was announced in the public notice for the
draft permit. In one case (Kalama), three public notices
were issued: receipt of application, draft permit, and
revised draft.
Most files reviewed contained summary response to comments.
These generally provided the explanation of any changes from
the draft to final permit.
Some files contained requests for public documents; these
requests (on a standard DOE form) apparently must go to the
State office that wrote the permit (10, UBAT, SWO, NWO, SEO,
NEO) when requesting permit information.
-------
TECHNOLOGY-BASED PERMIT REQUIREMENTS
DOE uses "AKART" (All Known and Reasonable Technology) to
develop technology-based limits in industrial permits.
There is no written description of criteria for calculating
AKART, but in the industrial permits reviewed, it was
similar to BPJ. In most cases, the term AKART was used to
justify setting BCT limits equal to BPT limits.
Most industrial fact sheets showed the basis for calculating
effluent guidelines-based limits, specifying the production
rate and guideline used. Actual calculations were not
shown.
When production was increased, the industrial permit fact
sheets reviewed showed that new (less stringent) limits were
proportioned by using BAT/BPT effluent guidelines for the
old production rate and using new source guidelines (NSPS)
for the increased amount, resulting in more stringent limits
than required by the guidelines.
Most of the municipal permit fact sheets included a
discussion on the derivation of BOD and TSS limits. The
mass limits were apparently calculated by multiplying the
Influent Design Flow by 0.15 (85% removal); not all of the
fact sheets showed the actual calculations for BOD and TSS.
There were cases where the mass limits increased with permit
reissuance and cases where the limits decreased, based on
increases or decreases in the treatment plant capacity.
BACKSLIDING
Most cases of apparent "backsliding" were explained (in the
corresponding fact sheets) by increased production rates at
industrial facilities, as described above.
There was one permit (Atochem) where limits for lead and for
nickel were removed from the reissued permit. The fact
sheet gave three reasons for these less stringent permit
conditions: 1) the metals have not been introduced into the
wastewaters since 1985, 2) standard analytical methods
cannot reliably determine the concentration of these metals
at the levels typically seen, and 3) measured concentrations
of lead and nickel in the facility's effluents are typically
well below both acute and chronic marine toxicity criteria.
It is not clear from the fact sheet if the guideline (within
415.63) applicable to the facility calls for limits on
nickel and lead. There is no discussion in the fact sheet
about antidegradation or the 402(o) backsliding exceptions.
-------
WATER QUALITY-BASED PERMIT REQUIREMENTS
No permits reviewed had any whole effluent toxicity limits.
All permits had WET monitoring requirements, but with no
trigger or requirement to conduct a TIE/TRE, and no time
frame for compliance. Some permits required additional
pollutant analyses which varied from permit to permit.
None of the municipal permits reviewed contained chemical
specific limits based on WQS (with the exception of
ammonia). Most municipal fact sheets contained a statement
explaining that there was no need for chemical specific
limits, but no analytical data were present to support such
a statement. A typical explanation appeared to be: "Since
the discharge is primarily domestic effluent with only minor
industrial input, it is believed the only pollutants with
potential for violating receiving water toxicity standards
would be chlorine and ammonia during summer low flow season.
Dechlorination is already required. Given average
temperature of 19.1 C and pH of 7.6, it is anticipated that
the ammonia discharge will be below levels causing acute or
chronic toxicity. It is believed that discharges in
compliance with technology based limits will not result in
degradation of water quality standards or impair any of the
designated beneficial uses. However, since there is no data
to verify this assumption, monitoring for ammonia nitrogen
in the effluent as well as monitoring for whole effluent
toxicity is required in this permit and additional
monitoring may be required as part of Ecology's waste load
allocation study of the Chehalis River."
POLLUTION PREVENTION
One permit reviewed (Atochem) contained requirements for a
"Discharge Reduction/Elimination Study," to determine the
feasibility, including costs and benefits, of reducing and
eliminate discharges or contaminant loadings in discharges.
(In this particular case, the study required is for "phase
II" of a study completed by the permittee in 1988.)
All permits reviewed contained requirements to report and
implement "spill plans" and "treatment system operating
plans."
BOILERPLATE
Each permit reviewed had the same "General Conditions"
section. The conditions include a reference to 40 CFR
122.41, but some of these boilerplate conditions are stated
explicitly in the permit while others are not (and can be
-------
considered to be incorporated by reference). Duty to apply,
duty to mitigate, property rights, duty to provide
information, signatory requirements, and upset are not
explicitly stated in the general conditions.
FACT SHEETS
Most fact sheets reviewed showed the basis for each WQ or
technology-based limit, but have no comparison of the water
quality-based limit and the technology-based limit for each
pollutant to show that the more stringent limit is being
used.
None of the fact sheets contained any data indicating that
an evaluation of the potential to exceed water quality
standards was done.
-------
Appendix ll-C-3
References used in preparation of section on Permit Program Review:
Federal Law. Regulations, and Guidelines
1. Clean Water Act, as amended by Water Quality Act of 1987.
2. Code of Federal Regulations, 40 CFR 122, 123, 124, 125, 130.
3. Development of Water Quality-Based Permit Limitations for Toxic Pollutants;
National Policy, 49 Federal Register 9016, 1984
4. Whole Effluent Toxicity Basic Permitting Principles and Enforcement Strategy,
from Rebecca Hanmer, Acting Assistant Administrator, Office of Water, to
Regional Administrators, January 25, 1989
5. U.S. EPA. 1991. Technical Support Document for Water Quality-based Toxics
Control, Office of Water, EPA/505/2-90-001, March 1991
6. U.S. EPA. 1991. Guidance for Water Quality-based Decisions: The TMDL
Process
7. U.S. EPA. 1986. Quality Criteria for Water. (Gold Book)
8. National Toxics Regulation, November 19, 1991 Federal Register
Water Quality Standards:
1. Chapter 173-201 WAC, Water Quality Standards for Surface Waters of the State
of Washington
2. FOCUS, Washington's Surface Water Quality Standards, Proposed Revisions
and Public Hearing Notice, January 1991 draft, and June 5, 1991 draft.
3. Letter from Sally Marquis, EPA Water Quality Standards Coordinator, to Mark
Hicks, Ecology, date, accepting revisions to water quality standards for 1991
triennial review.
4. Criteria for Sewage Works Design, Washington Department of Ecology, 1983.
-------
Water Quality Planning:
1. Washington 1990 305 (b) report
2. Washington's TMDL process paper, 1991
Biomonitoring Guidance:
1. Interim Policy and Guidelines for Biomonitoring and Toxicity Control of Point
Source Discharges, Washington Department of Ecology, June 1988.
2. Draft Biomonitoring Guidance for Department of Ecology Permit Writers, July 20,
1990.
Sediment Management Standards:
1. WAC 173-204
Permit Writers' Manual:
1. Draft Permit Writers' Manual, July 14, 1989.
2. Revised Chapter 4 of Permit Writers' Manual, undated.
Puaet Sound Water Quality Authority:
1. Puget Sound Water Quality Authority, 1986. Issue Paper on Municipal and
Industrial Discharges.
2. Puget Sound Water Quality Authority. 1987. Puget Sound Water Quality
Management Plan.
3. Puget Sound Water Quality Authority. 1991. Puget Sound Water Quality
Management Plan, aka CCMP.
State Toxics Program Review:
1. Letter from Robert Burd, EPA Water Division Director, to Carol Jolly, Ecology
Manager of Water Quality Program, regarding findings of State Toxics Program
Review, June 30, 1988.
2. State-EPA Agreement, 1989
3. Washington Environment 2010. 1990. Toward 2010: An Environmental Action
Agenda," State of Washington, Olympia, WA
-------
TMDL Lawsuit-
1. Northwest Environmental Advocates and Northwest Environmental Defense
Center vs. William Reilly, Administrator of the United States Environmental
Protection Agency, and Christine Gregoire, Director of the State of Washington
Department of Ecology, Case No. C91-427R, (TMDL Lawsuit).
Petition Materials:
1. Sierra Club Legal Defense Fund, Inc., Comments Regarding Petition for
Corrective Action or Withdrawal of Authority of the National Pollutant Discharge
Elimination System Permit Program for the State of Washington, September 15,
1991.
2. Other materials, as submitted. See administrative record.
Additional Materials:
1. Washington State Commission for Efficiency and Accountability in Government.
1990. Department of Ecology Wastewater Discharge Permit Study, December
1990.
2. Department of Ecology, Wastewater Discharge Permit Action Plan, Report to the
House Environmental Affairs Committee, September 19, 1991.
3. State of Washington Legislative Budget Committee. 1986. "Special Study of
Wastewater and Water Quality Projects (Department of Ecology), Report No. 86-
3, Januarys, 1986.
4. Greenpeace. 1985. "License to Pollute: The National Pollutant Discharge
Elimination System in Washington State," Seattle, WA.
-------
Appendix ll-C-4
Other Actions That May Affect Program Scheduling
reviews have culminated in other recommended changes to Ecology's
NPDES program, including: the PSWQMP(s) and the Efficiency Report, the State
Toxics Program Review conducted in 1988, and the annual SEAs. Other actions that
may affect the progress of implementing water quality-based controls in Washington
are: the ongoing TMDL lawsuit, filed by the Northwest Environmental Advocates and
the Northwest Environmental Defense Center; the challenges to the Columbia River
TMDL; and challenges to Washington permits containing water quality based limits and
biological monitoring. These are discussed in more detail below.
Puget Sound Water Quality Management Plan, 1991
The Authority concludes that Ecology has already addressed many of the
recommendations in the PSWQMP. Implementation of certain program elements has
fallen behind schedule, but in general, most of the program elements are fully in
progress. The current status of plan implementation is found in the 1991 PSWQMP.
EPA concludes that Ecology has made significant progress in addressing these
program elements. The PSWQMP contains additional recommendations on issues
that, when implemented, should address many of the petitioners concerns regarding
NPDES permit quality. We strongly recommend that Ecology continue to incorporate
the plan elements into the NPDES program according to the plan schedule.
Efficiency Report, 1990
In response to the recommendations and proposed schedule contained in the
Efficiency Commission Report, Ecology has counter-proposed a draft implementation
plan (Spring 1991), which extends many of the target dates. The Efficiency Report
recommendations that respond to the petition and Ecology's proposed schedule are
outlined below.
A.5 Cross-program effort - Ecology will develop framework for cross program
coordination by January 31, 1992.
EPA supports this effort, as outlined above.
B.5 Planning for Technology - This section of the Efficiency Report contends
that the water quality program does not have a systematic plan for
integrating new requirements into permits, and requires development of
these procedures by June 30,1991.
The Efficiency Commission recognizes that by imposing the new permit
conditions required by the PSWQMP, permittees will need some start up
time to prepare to meet these conditions. The general public also needs
to know of the impact of these conditions. Legitimate concerns have
-------
been raised about the need to disseminate policy and background
information to permit writers on these conditions prior to including them
in permits. However, these technology transfer activities should not delay
implementation of these requirements. The timelines for development
and implementation, as contained in the plan, should be as short as
possible. Again, the bottom line is that Ecology is authorized to require
any monitoring necessary to insure compliance with WQS.
C.2 Structure - The Efficiency Commission recognizes some change in
organizational structure, a team approach, and permit management along
the lines of the industrial section. While this may solve some of the short
term problems with technology transfer, it may not get to the heart of the
inefficiency problem.
C.5 Support for Permit Managers - EPA concludes that permit writers should
be encouraged to follow this guidance, particularly with regard to BPJ
and water quality based permits. Training of new permit writers should
continue as per Ecology's plan.
Ecology current policies, guidelines, and procedures should be compiled
as a companion document to the permit writer's manual. Superseded
material should be kept in another file for reference.
A critical component of Ecology's policy manual would be a clear
statement of the role of AKART in determining permit limitations.
Specifically, Ecology should clarify the AKART policy and document
procedures for determining AKART. For example, Ecology needs to
clearly identify the technologies selected for consideration, the criteria for
determining which technology is selected as AKART, and the economic
analysis (if any) that Ecology applies. Ecology may build upon the
criteria EPA uses in its BAT determinations, as referenced in the effluent
guidelines.
EPA Headquarters and Region 10 will continue to provide and encourage
permit writing training.
C.6 Relationship with Permittees - Ecology should provide technical
assistance to permittees regarding permit conditions. However, this effort
should not be allowed to delay implementation of conditions in permits.
State Toxics Program Review, 1988
The five major action items contained in this EPA review have been or are being
addressed. Remaining action items should be developed as resources allow.
TMDL Lawsuit
-------
A lawsuit has been filed by the Northwest Environmental Advocates and the
Northwest Environmental Defense Center against the EPA and Ecology for failing to
develop TMDLs for Washington's water quality limited segments. Both EPA and
Ecology are defendants in the suit because, although the CWA clearly places
responsibility for TMDL development and implementation on the states, EPA must
promulgate these controls when a state fails to do so. Settlement discussions are
ongoing.
The settlement for this lawsuit may affect the timeframes recommended in the
PSWQMP and Efficiency Report or planned by Ecology for implementing water
quality-based controls.
. State/EPA Agreements
SEAs outline the state's workplan for the year. Priorities in the SEA may be
adjusted as program needs change. To build a comprehensive water quality program,
better coordination between the planning elements is necessary. For example, good
water quality-based permits will follow from good watershed management. Ecology
needs to coordinate efforts between programs, including: water quality monitoring
(EILS); TMDL development (EILS); and permitting (Water Quality Program). All of
these components need to be recognized as part of the solution to water quality
problems.
Challenges to the Columbia River TMDL and Challenges to Ecology
Permits Over Monitoring Requirements
The impact of these actions on the implementation of water quality-based
controls cannot yet be determined. However, mandated court schedules may affect
Ecology's currently planned schedules to implement the program elements in the
PSWQMP and the Efficiency Report.
-------
Appendix II-D-1
SFP 23 mi
S&.
Ti
§ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
^/ WASHINGTON, D.C. 20460
SEP I 9 1991
OFFICE OF
Naki Stevens WATER
Campaign for Puget Sound
600 University Ave., Suite 2400
Seattle, WA 98111
Dear Ms. Stevens
As you requested, I an enclosing the permit backlog report
we retrieve from our computer system, the Permit Compliance
System. While my file is not complete on these reports, the three
I have enclosed (March, May, and September of 1991) will give you
an idea of changes that have occurred in permit issuance and
expiration over the past several months. As you will see,
Washington State is doing better than the national average of
approved States for reissuance of major permits, but not as well
for reissuance of minor permits.
If you have any questions on these reports, please call me
at (202) 260-9296.
Sincerely,
Sheila E. Frace, Chief
Industrial Permitting Section
-------
NPDES STATE MAJOR BACKLOG
Region State
Municipal Expired Percent
Majors
Non-
Municipal Expired Percent
Majors
CT
RI
VT
NJ
NY
VI
DE
MD
PA
VA
WV
AL
GA
KY
MS
NC
SC
TN
IL
IN
MI
MN
OH
WI
64
18
28
133
236
2
14
44
246
56
39
108
114
60
50
130
79
85
177
107
91
50
160
82
28
6
2
81
58
0
2
11
44
12
1
18
0
4
2
10
13
12
16
24
4
4
24
27
44%
33%
7%
61%
25%
0%
14%
25%
18%
21%
3%
17%
0%
7%
4%
8%
16%
14%
9%
22%
4%
8%
15%
33%
68
13
5
142
137
4
18
49
158
64
65
101
62
65
39
93
87
58
94
84
95
28
128
54
56
5
0
88
58
3
1
12
46
23
19
8
0
14
0
16
34
16
15
21
7
4
18
8
82%
38%
0%
62%
42%
75%
6%
24%
29%
36%
29%
8%
0%
22%
0%
17%
39%
28%
16%
25%
7%
14%
14%
15%
AR
62
15%
43
5%
10
IA
KS
MO
NE
CO
MT
ND
UT
WY
CA
HI
NV
OR
WA
74
39
75
41
69
~ 26
16
28
16
155
11
6
34
45
17
10
13
18
12
2
0
2
0
27
3
4
12
5
23%
26%
17%
44%
17%
8%
0%
7%
0%
17%
27%
67%
35%
11%
31
15
47
26
48
19
9
15
14
95
17
3
25
48
7
1
6
12
14
4
0
1
1
38
7
1
2
5
23%
7%
13%
46%
29%
21%
0%
7%
7%
40%
41%
33%
8%
,- 10%
TOTALS 2870
537
19%
2166
573
26%
PCS: September 10, 1991
-------
NPDES STATE MINOR BACKLOG
ion State Municipal Expired Percent Municipal Expired Percent
Minors Minors
10
CT
RI
VT
NJ
NY
VI
DE
MD
PA
VA
WV
AL
GA
KY
MS
NC
SC
TN
IL
IN
MI
MN
OH
WI
24
1
59
92
318
10
3
156
569
600
188
170
343
175
271
210
179
169
588
299
302
511
632
491
20
1
6
36
36
4
2
74
225
141
27
42
0
1
6
22
34
12
80
155
190
"55
267
171
83%
100%
10%
39%
11%
40%
67%
47%
40%
24%
14%
25%
0%
1%
2%
10%
19%
7%
14%
52%
63%
11%
42%
35%
626
113
49
1107
1056
39
64
811
3468
1757
3638
1458
603
2398
1063
2681
813
1283
1721
1289
1067
461
3361
459
509
60
10
585
209
11
42
333
1344
756
2872
178
0
87
138
221
206
101
663
638
332
121
2082
278
81%
53%
20%
53%
20%
28%
66%
41%
39%
43%
79%
12%
0%
4%
13%
8%
25%
8%
39%
49%
31%
26%
62%
61%
AR
268
8
TOTALS 9621 2402
September 10, 1991
3%
498
65
13%
IA
KS
MO
NE
CO
MT
ND
UT
WY
CA
HI
NV
OR
WA
645
409
510
324
_ 194
61
264
36
68
103
4
8
173
194
103
253
64
68
19
4
0
1
0
48
1
3
87
136
16%
62%
13%
21%
10%
7%
0%
3%
0%
47%
25%
38%
50%
70%
891
713
1755
621
342
146
121
75
776
1191
48
50
700
539
222
519
281
248
55
20
3
2
5
611
25
23
330
452
25%
73%
16%
40%
16%
14%
2%
3%
1%
51%
52%
46%
47%
84%
25%
39851
14637
37%
-------
Region state
7
10
AR
PCS: MAY 14.1991
Municipal Expired Percent ^on-Municipa, Expired Percent
CT
VT
Rl
NY
NJ
VI
PA
WV
MD
VA
DE
NC
TN
AL
KY
MS
SC
GA
Wl
Ml
OH
IL
IN
MN
63
28
18
236
135
2
246
39
43
56
14
132
84
105
60
48
79
107
82
91
159
177
105
50
32
1
10
58
72
0
53
1
9
7
1
9
15
18
5
2
13
8
25
9
19
16
27
10
51%
4%
56%
25%
53%
0%
22%
3%
21%
13%
7%
7%
18%
17%
8%
4%
16%
7%
30%
10%
12%
9%
26%
20%
75
5
13
137
146
4
158
65
50
64
18
92
58
102
65
40
87
62
55
96
129
94
84
28
64
0
7
61
78
2
45
22
9
22
2
12
16
3
12
1
35
2
4
9
18
20
22
4
85%
0%
54%
45%
53%
50%
28%
34%
18%
34%
11%
13%
28%
3%
18%
3%
40%
3%
7%
9%
14%
21%
26%
14%
62
10%
2858
552
19%
44
2186
569
5%
NE
KS
MO
IA
MT
NO
WY
CO
UT
CA
HI
NV
WA
OR
42
39
75
74
26
16
16
69
28
155
11
6
45
35
18
6
11
13
0
0
1
15
2
29
5
4.
4
18
43%
15%
15%
18%
0%
0%
6%
22%
7%
19%
45%
67%
9%
51%
27
16
48
31
19
9
15
48
15
95
17
3
47
25
9
0
7
1
3
0
2
11
2
38
8
0
14
2
33%
0%
15%
3%
16%
0%
13%
23%
13%
40%
47%
0%
30%
8%
26%
-------
Region State
Municipal Expired Percent Non-Municipal Expired Percent
Minors Minors
CT
VT
Rl
NY
NJ
VI
PA
WV
MO
VA
DE
NC
TN
AL
KY
MS
sc
GA
Wl
Ml
OH
IL
IN
MN
24
59
1
313
93
10
531
188
156
600
3
207
151
185
176
271
177
350
485
300
634
584
301
510
20
3
1
40
34
5
209
30
70
126
2
14
12
65
1
3
22
2
176
189
218
63
137
73
83%
5%
100%
13%
37%
50%
39%
16%
45%
21%
67%
7%
8%
35%
1%
1%
12%
1%
36%
63%
34%
11%
46%
14°/b
626
49
109
1029
1100
40
3452
3883
845
1756
63
2695
1298
1410
2398
1061
790
603
455
1035
3348
1711
1233
442
499
7
56
205
544
12
1300
3013
293
663
42
197
119
126
93
89
186
18
258
342
2039
600
630
111
80%
14%
51%
20%
49%
30%
38%
78%
35%
38%
67%
70*
9%
9%
4%
8%
24%
3%
57%
33%
61%
35%
49%
25%
10
AR
265
9544
3%
2337
24%
491
39900
67
14309.
14%
NE
KS
MO
IA
MT
NO
WY
UT
CO
CA
HI
NV
WA
OR
321
408
504
642
61
264
67
36
190
101
4
8
192
172
68
266
89
99
1
0
0
2
22
49
1
4
132
80
21%
65%
18%
15%
2%
0%
0%
6%
12%
49%
25%
50%
69%
47%
613
696
1752
893
147
120
772
78
343
1161
45
43
559
706
234
477
403
205
11
1
8
2
50
577
21
22
449
340
38%
69%
23%
23%
7%
1%
1%
3%
15%
50%
47%
51%
80%
48%
36%
PCS: MAY 14, 1991
-------
Region
State Municipal Expired Percent Non-Municipal Expired Percent
CT
VT
Rt
NY
NJ
VI
PA
WV
MD
VA
OE
NC
TN
AL
KY
MS
SC
GA
Wl
Ml
OH
IL
IN
MN
Majors
64
28
18
236
143
2
245
39
42
59
14
132
84
104
60
48
79
107
82
91
159
177
105
50
Majors
30
1
10
57
68
0
51
1
8
8
1
8
16
22
4
2
12
0
24
9
15
18
27
12
47%
4%
56%
24%
48%
0%
21%
3%
19%
14%
7%
6%
19%
21%
7%
4%
15%
0%
29%
10%-
9%
10%
26%
24%
75
5
13
137
149
4
158
65
50
65
18
92
58
102
65
40
87
62
55
97
129
94
84
28
64
0
7
53
74
2
44
20
7
22
2
14
15
3
12
0
36
0
3
10
17
23
22
3
85%
0%
54%
39%
50%
50%
28%
31%
14%
34%
11%
15%
26%
3%
18%
0%
41%
0%
5%
10%
13%
24%
26%
11%
AR
62
10%
44
2%
10
NE
KS
MO
IA
MT
NO
WY
CO
UT
CA
HI
NV
WA
OR
42
39
75
74
26
16
16
70
28
155
11
6
45
35
18
9
12
11
0
0
0
18
2
29
2
2
5
17
43%
23%
16%
15%
0%
0%
0%
26%
7%
19%
18%
33%
11%
49%
27
16
48
31
19
9
15
48
15
96
17
3
47
25
7
0
9
1
2
0
2
9
2
43
8
0
16
2
26%
0%
19%
3%
11%
0%
13%
19%
13%
45%
47%
0%
34%
8%
2868
535
19%
2192
555
25%
PCS: MARCH 12.1991
-------
AR
Municipal Expired Percent Non-Municipal Expired Percent
Minors Minors
CT
VT
Rl
NY
NJ
VI
PA
WV
MD
VA
DE
NC
TN
AL
KY
MS
SC
GA
Wl
i
IL
IN
MN
24
62
1
312
97
10
528
253
155
601
3
211
149
185
217
276
177
348
485
299
634
584
301
510
20
25
1
44
34
5
205
91
67
122
2
14
15
54
5
5
21
0
168
186
184
59
141
70
83%
40%
100%
14%
35%
50%
39%
36%
43%
20%
67%
7%
10%
29%
2%
2%
12%
0%
35%
62%
29%
10%
47%
14%
622
54
109
1014
1095
38
3416
3888
863
1759
63
2792
1338
1398
2371
1048
800
603
454
1032
3348
1710
1277
437
498
30
51
208
513
10
1286
2986
297
623
40
222
144
110
94
52
175
0
246
338
2011
525
628
117
80%
56%
47%
21%
47%
26%
38%
77%
34%
35%
63%
8%
11%
8%
4%
5%
22%
0%
54%
33%
60%
31%
49%
27%
265
10
4%
9658
I
'CS: MARCH 12.1991
2358
24%
486
39924
69
14147
14%
NE
KS
MO
IA
MT
NO
WY
UT
CO
CA
HI
NV
WA
OR
320
408
506
640
61
264
68
36
190
101
4
8
193
172
68
246
104
101
1
0
0
1
23
49
1
3
133
80
21%
60%
21%
16%
2%
0%
0%
3%
12%
49%
25%
38%
69%
47%
612
696
1762
892
147
119
780
76
341
1147
45
40
559
693
229
449
403
182
7
3
1
2
54
581
21
22
446
474
37%
65%
23%
20%
5%
3%
0%
3%
16%
51%
47%
55%
80%
68%
35%
-------
Appendix ll-D-2
State Performance Compared with Other Authorized States
The state asked EPA to compare its performance against that of other
authorized states; EPA agreed to conduct the comparison where there was readily
available information. The comparison on permit backlog numbers is contained in the
report. The following preliminary information comparing Washington with other
authorized states is from EPA's national database on the NPDES permit program,
PCS. Not all of the 39 authorized states reported all items; therefore, these numbers
are not necessarily representative. In addition, the data are numerical and the
comparison does not take into account the universe of facilities in each state. Data
from a PCS run on January 17, 1992, representing data from the first quarter of fiscal
year 1992 (October through December 1991) unless otherwise noted.
Count of Reportable Non-Compliance for Compliance Schedule Violations in
Fiscal Yearl 991
Average For
Washington States Washington Ranking
56 101 14/39
Number of Administrative Orders Issued by State
Average For
Washington States Washington Ranking
15 7 6/39
Number of Administrative Orders Issued by State
Average For
Washington States Washington Ranking
37 2 1/39
Number of Permits Issued with Whole Effluent Toxicity Limits or Monitoring
Requirements in Fiscal Year 1991 (Majors and Minors)
Average For
Washington States Washington Ranking
25 105 21/39
Number of Pretreatment Audits and PCIs in Fiscal Year 1991
Average For
Washington States Washington Ranking
26 173 25/39
-------
Appendix II-D-3
WATER QUALITY PROGRAM
WATER QUALITY EXECUTIVE
WCHABL . LLEWELYN
.
* '"'
ounLorrm CORNWALL - on
-------
WATER QVAUTY PROGRAM
poiNT.sgyngE MANAGEMENT SECTION
j CO TOY MOCKIMNM - ilO<
OPERATIONS yj|UT
VACANT-E82B
OPMENT AMD SUPPORT UNJT
.-v ''Vfc'Wvasr.**1-**? .-/':
v v^/y- %; r ? V.-.
tlX.iV'*' j: it' * .< r. ,
I..6 .**/"» »;^'> :.:t~*\>. .-
'f;:'>>t-':^yR|ri..«lM ..; \
-------
WATER QUALITY PROGRAM .
PASIN PLANNING AND STANDARDS SECTION
OAVE PEELER
8EOT10H SUPER VISOR
HBLWOAHO-iW
lower CotumU* BK* CoontnU on
, . F^JM^W»tarOuiIVProgi«niC
-------
, WATER QUALITY PROGRAM
ADMINISTRATION AND INFORMATION MANAGEMENT SECTION
NANOVWHT6R8
AOTINQ 8ECmOH SUPER VI BOB
INPOBMAT10H MAMAQBMEHT UNIT
VACANT- B8ZA
il-'j '-ii ' .' /< ..'jr?f,»-'»vri-.'».>-/«j'i-«c»jj«vv li.i-i/1-..!'ifi-.ui>.;.! .'.. r-':'t:t , -.> '!>. ».
,
y.«ii-.:.. - v rX'-^-ff..'''^" ':.^--^iH^iiS*5iiwiip«M -. sr ..' -
' ' ' ' . . '
,. -.. ..- .-
',\^' ~ ." . ''- ' ' : '.' -''
.-
-------
Appendix ll-G-1
APPROVED PRETREATMENT PROGRAMS IN WASHINGTON
Anacortes
Everett
Lynnwood
Richland
Seattle METRO
Spokane
Tacoma
Vancouver
-------
Appendix II*G-2
PRETREATMENT LANGUAGE IN NPDES PERMITS
SB. PRETREATMENT
A. Pretreatment
1. The Permittee shall implement the Industrial Pretreatment
Program in accordance with the legal authorities, policies,
procedures, and financial provisions described in the
Permittee's pretreatment program submittal, dated September
1987; any approved revisions thereto; and the General
Pretreatment Regulations (40 CFR Part 403 including rule
revisions of October 17, 1988, and July 24, 1990). At a
minimum, the following pretreatment implementation activities
shall be undertaken by the Permittee:
a. Enforce categorical pretreatment standards promulgated
pursuant to Section 307(b) and (c) of the Federal Clean
Water Act (hereinafter, the Act), prohibited discharge
standards as set forth in 40 CFR 403.5, local
limitations specified in Section 13.03.04026 of
Ordinance 13.03, or state standards, which ever are most
stringent or apply at the time of issuance or
modification of a local industrial waste discharge
permit. Locally derived limitations shall be defined as
pretreatment standards under Section 307(d) of the Act
and shall not be limited to categorical industrial
facilities.
b. Issue industrial waste discharge permits to all
significant industrial users in a timely manner.
Industrial waste discharge permits shall contain
limitations, sampling protocols, compliance schedules as
appropriate, reporting requirements, and appropriate
standard conditions. The Permittee shall coordinate the
permitting process with Ecology regarding any industrial
facility which may possess a state waste discharge
permit. Once issued, an industrial waste discharge
permit will take precedence over a state .issued waste
discharge permit.
c. Maintain and update, as necessary, records identifvina
-------
the nature, character, ana volume or poi.xutants
contributed by industrial users to the POTW. Records
shall be maintained for at least a three-year period.
d. Perform inspections, surveillance, and monitoring
activities on industrial users to determine and/or
confirm compliance with applicable pretreatment
standards. Frequency of regular local monitoring of an
industrial user's wastewaters shall normally be
commensurate with the character and volume of the wastes
but shall not be less than two (2) times per year.
e. Enforce and obtain remedies for noncompliance by any
industrial users with applicable pretreatment standards
and requirements.
2. The Permittee shall develop and submit to Ecology for
approval, within nine months of the effective date of formal
approval of its pretreatment program, an Accidental Spill
Prevention Program to reduce and prevent spills and slug
discharges of pollutants by industrial users. The Permittee
can require similar plans from significant local industries
through its local discharge permits and use these plans as a
basis for its program. The program, as approved by Ecology,
shall include a schedule for implementation, and shall become
an enforceable part of these permit conditions.
3. Whenever it has been determined, on the basis of information
provided to Ecology, that any waste source contributes
pollutants to the Permittees treatment works in violation of
Subsection (b), (c), or (d) of Section 307 of the Act, and the
Permittee has not taken adequate corrective action, Ecology
shall notify the Permittee of this determination. Failure by
the Permittee to commence an appropriate enforcement action
within 30 days of this notification may result in appropriate
enforcement action by Ecology against the source and/or the
Permittee.
4. Pretreatment Report
The Permittee shall provide to Ecology an annual report that
briefly describes its program activities during the previous
twelve months. Ecology may modify this reporting requirement
without formal public notice to require less frequent
reporting if it is determined that the data in the report does
not substantially change from year to year. This report shall
be submitted no later than July 1 of each year to:
Washington State Department of Ecology, Eastern Regional
Office, North 4601 Monroe Street, Spokane, WA 99205-1295.
The report shall include the following information:
a. An industrial survey update.
b. Results of wastewater sampling at the treatment plant as
specified in Subsection B below. The Permittee shall
calculate removal rates for each pollutant and evaluate
the adequacy of the existing local limitations in
Section 13.03.04026 of Ordinance 13.03 in prevention of
treatment plant interference, pass through of pollutants
that could affect receiving water quality, and eludae
contamination.
-------
c. Status of program implementation, including:
1. Any substantial modifications to the pretreatment
program as originally approved by Ecology,
including staffing and funding levels.
2. Any interference, upset, or permit violations
experienced at the POTW that are directly
attributable to wastes from industrial users.
3. Listing of industrial users inspected and/or
monitored, and a summary of the results.
4. Listing of industrial users scheduled for
inspection and/or monitoring for the next year,
and expected frequencies.
5. Listing of industrial users notified of
promulgated pretreatment standards and/or local
standards as required in 40 CFR 403.8(f)(2)(iii).
Indicate which industrial users are on compliance
schedules and the final date of compliance for
each.
6. Listing of industrial users issued industrial
waste discharge permits.
7. Planned changes in the pretreatment program
implementation plan. (See subsection A.6.below).
d. Status of enforcement activities, including:
1. Listing of industrial users that failed to submit
baseline monitoring reports or any other reports
required under 40 CFR 403.12 and in the
Permittee's pretreatment program.
2. Listing of industrial users that were at any time
during the reporting period not complying with
federal, state, or local pretreatment standards
or with applicable compliance schedules for
achieving those standards, and the duration of
such noncompliance.
3. Summary of enforcement activities and other
corrective actions taken or planned against
noncomplying industrial users. The Permittee
shall provide public notice of significant
violators as outlined in 40 CFR 403.8(f)(2)(vii).
5. The Permittee shall notify Ecology at least 60 days prior to
any major proposed change in its existing sludge disposal
practices.
6. The Permittee shall request and obtain approval from Ecology
prior to implementing any significant changes to the local
pretreatment program as approved.
B. Monitoring Requirements
1. The Permittee shall monitor its influent, effluent, and sludge
and report concentrations of the following parameters in its
-------
annual report. The influent and effluent samples shall be
taken at three (3) month intervals and consist of a 24-hour
composite unless otherwise specified below. Sludge samples
shall be taken at three (3) month intervals and consist of a
grab sample reported on a dry weight basis.
antimony
arsenic
barium
beryllium
cadmium
chromium (hexavalent)
chromium
copper
cyanide (grab)
iron
lead
manganese
mercury
nickel
selenium
silver
thallium
zinc
oils (hexane soluble or equivalent, grab, influent, and
effluent only)
phenoIs (grab)
Unless otherwise indicated, concentrations refer to the total*
amount of the constituent present in all phases, whether
solid, suspended, or dissolved, elemental or combined
including all oxidation states. Where constituents are
commonly measured as other than total, the phase is so
indicated.
* The final effluent shall also be analyzed for total
recoverable metals.
2. The Permittee shall conduct an inventory of the 111 organic
priority pollutants identified in Appendix B of 40 CFR Part
403 as amended, using U.S. EPA approved analytical procedures
and shall also identify and quantify additional organic
compounds which occur in the influent, effluent, and sludge.
This monitoring shall be done two times at six month intervals
during the first year of the permit, and once per year after
that, for a total of six times during the five-year period of
the permit, and shall consist of the following:
a. The influent and effluent shall be sampled and analyzed
for the priority pollutants. The sampling shall be done
during a day when industrial discharges are occurring at
normal to maximum levels. Samples for the analysis of
acid and base/neutral extractable compounds shall be 24-
hour composites. Samples for the analysis of volatile
organic compounds shall be collected using grab sampling
techniques at equal intervals for the total of five grab
samples per day.
A single analysis for volatile pollutants (Method 624)
may be run for each monitoring day by compositing equal
volumes of each grab sample directly in the GC purge and
trap apparatus in the laboratory, with no less than 1 ml
of each grab included in the composite. '"
-------
Wastewater samples must be handled, prepared, and
analyzed by GC/MS in accordance with the U.S. EPA
Methods 624 and 625 (October 26, 1984).
b. The sludge shall be sampled and analyzed for the
priority pollutants. A sludge sample shall be collected
concurrent with a wastewater sample and may be taken as
a single grab of residual sludge.
Sampling and analysis shall conform to U.S. EPA Methods
624 and 625 unless the Permittee requests an alternate
method and it has been approved by Ecology.
c. Sample collection, preservation, and storage shall
conform to approved U.S. EPA procedures and
requirements.
d. In addition to the priority pollutants, a reasonable
attempt shall be made to identify and quantify the ten
most abundant substances of each fraction (excluding
priority pollutants and unsubstituted aliphatic
compounds) shown to be present by peaks on the total ion
plots (reconstructed gas chromatogram) more than ten
times higher than the adjacent background noise which
produces an identifiable spectra, and more than five
scans wide. Identification shall be attempted by a
laboratory whose computer data processing programs are
capable of comparing the sample mass spectrum to a
computerized library of mass spectra, with visual
confirmation by an experienced analyst. Quantification
may be an order of magnitude estimate based on
comparison with an internal standard.
3. The Permittee shall include a summary of the findings in the
annual pretreatment report. As sufficient data becomes
available, the Permittee shall evaluate, in consultation with
Ecology, what impacts organic pollutants may have in terms of
causing interference or pass through. Ecology may modify this
permit to incorporate additional requirements relating to the
establishment and enforcement of local limits for organic
pollutants of concern. In order to develop these organic
local limits. Ecology will provide environmental criteria or
limits for the various organic compounds. Any permit
modification is subject to formal due process procedures
pursuant to state and federal law and regulation.
4. Upon a determination that an organic pollutant is present that
causes interference or passes through the POTW at levels that
exceed the environmental criteria, the Permittee shall
r>Qr ab 1 i Rh 1 nra 1 limi1-B ^Q i-oon < r-ori h" -to rru .' m c
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