UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

Region 9
75 Hawthorne Street
San Francisco, CA 94105

Response to Comments
from the City and County of Honolulu

on the Environmental Protection Agency's
December 7, 2007 Tentative Decision
regarding the

City and County of Honolulu's request for a Variance at the
Sand Island Wastewater Treatment Plant under
Section 301(h) of the Clean Water Act

January 5, 2009

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Response to CCH comments on Sand Island TDD

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This document responds to the comments receivedfrom the City and County of Honolulu on the
Sand Island tentative decision. A separate document responds to all other comments received
from the public on the Sand Island tentative decision. Each comment in this document is given a
number with the prefix "C. " Comments in the Response to Comments from the Public are given
numbers with the prefix "P. " Any reference in this document to "public " comments should be
interpreted to include both the comments in this document and the other comments receivedfrom
the public.

Note: Various commenters refer to a section 301(h) "waiver, " whereas EPA uses the term
"variance. " In the context of the Sand Island decision and response to comments document,
these terms can be considered interchangeable.

General Comments

Comment CI: The CWA required all publicly owned treatment works (POTWs) to meet
effluent limitations based on secondary treatment, as defined by the EPA Administrator, by July
1988. Secondary treatment was subsequently defined in terms of three parameters: biochemical
oxygen demand (BOD), total suspended solids (TSS), and hydrogen ion concentration (pH).

Congress amended the CWA in 1977 by adding Section 301(h), giving EPA authority to issue
modified NPDES permits for primary treatment by POTW discharges to marine waters.
According to Congressional records, Section 301(h) was promulgated: "in order to achieve
needed savings in the cost of treatment of municipal wastes[; thus,] the Committee considers it
desirable to make the option of ocean discharges available where it can be shown that
unacceptable adverse environmental effects will not result" (H.R. Rep. No. 97-270 [1981],
reprinted in U.S.C.C.A.N. 2629, 2645).

The modifications allowed by Section 301(h) are focused on potential relaxation of BOD, TSS,
and pH criteria. No other relaxations of secondary treatment requirements or environmental
standards are allowed. Congress expressly identified nine criteria that the applicant must meet to
obtain a Section 301(h) waiver. These criteria include compliance with water quality standards,
industrial pretreatment requirements, monitoring programs, and the elimination of toxic
substances from nonindustrial sources, among others. In essence, all waiver criteria concern
direct or indirect impacts on the marine environment and the public uses thereof; their
overarching goal is to prevent ocean degradation by the discharge of primary effluent.

The nine 301(h) waiver criteria are listed in CCH's comments.

Response: EPA agrees that Section 301(h), as added to the Clean Water Act in 1977 and
amended by the Water Quality Act of 1987, allows EPA to modify the secondary treatment
requirements of CWA section 301(b)(1)(B) for certain dischargers that demonstrate that the

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proposed discharge complies with a set of criteria intended to protect the marine environment,
including attaining water quality standards. EPA does not dispute the commenter's quotation
from the legislative history or general summary of the 301(h) requirements.

Comment C2: CCH has made more than $360 million in upgrades to the SIWWTP since the
Permit was issued. These upgrades have improved the overall plant operations and reliability,
providing additional assurance that the plant will meet its treatment removal requirements for
BOD and TSS.

Specifically, CCH has implemented the following upgrades:

1.	Ala Moana Wastewater Pump Station Modifications, 2004; upgraded existing pump
station to accommodate higher flows and head, for more than $25 million

2.	Hart Street Wastewater Pump Station Modifications, 2002; upgraded existing pump
station to accommodate higher flows and head, for more than $27 million

3.	Hart Street Wastewater Pump Station Force Main Replacement, 2001; installed new force
main, for more than $23 million

4.	Sand Island Parkway Wastewater Pump Station Modifications, 2004; upgraded existing
pump station to accommodate higher head, for more than $1.5 million

5.	SIWWTP, Unit 1, Phase 2A, 2005; constructed new headworks and increased capacity
from 82 million gallons per day (mgd) to 90 mgd with the addition of two new primary
clarifiers as required by the Sand Island Expansion, for more than $104 million

6.	SIWWTP Disinfection Facility, 2007; constructed new ultraviolet (UV) disinfection
facility and effluent pump station, for more than $115 million

7.	SIWWTP Interim Chemical Treatment Facility Improvements, 2000; upgraded the
Chemical Treatment Facility, for more than $1.5 million

8.	SIWWTP In-Vessel Bioconversion Facility, 2006; constructed new anaerobic digester,
dewatering, and drying facility as required by the Sand Island Expansion, for more than
$41 million

9.	Kapiolani Trunk Sewer Reconstruction/Rehabilitation, 2008; performed sewer
reconstruction and rehabilitation, for more than $23 million

In addition, CCH has encumbered an additional $170 million for the SIWWTP Expansion,

Phases 1 and 2a, to complete the remaining plant improvement work in the expansion project.

These improvements evidence CCH's commitment to meet the nine criteria in Section 301(h) of
the CWA.

Response: EPA has evaluated the proposed discharge against the regulatory and statutory
criteria pertaining to section 301(h). Notwithstanding CCH's completed and planned
improvements, EPA finds that the proposed discharge will not meet the regulatory and statutory
criteria. Notably, the proposed discharge does not comply with all applicable water quality
standards.

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To the extent that upgrades affected effluent quality, the effects would have been reflected in the
effluent or receiving water data reviewed by EPA in its consideration of the application. For
example, EPA determined that the Sand Island facility can meet water quality standards for
bacteria based on data collected during use of the UV disinfection system.

Comment C3: EPA issued Section 301(h) waivers for SIWWTP in 1990 and 1998 based on
rigorous analysis of volumes of engineering and scientific data. In making its 1998 decision to
reissue the waiver, EPA set forth the following findings in the 1998 TD:

1.	The applicant's proposed discharge will comply with the State of Hawaii's water
quality standards for dissolved oxygen (DO), TSS, and pH. [Section 301(h)(1), 40 CFR

125.61]

2.	The applicant's proposed discharge, alone or in combination with pollutants from
other sources, will not adversely impact public water supplies or interfere with the
protection and propagation of a balanced, indigenous population (BIP) offish, shellfish
and wildlife, and will allow for recreational activities. [Section 301(h)(2), 40 CFR

125.62]

3.	The applicant has proposed a monitoring program for the Sand Island discharge. EPA
Region 9 worked with the applicant to revise the provisions for monitoring the impact of
the discharge contained in the Section 301(h) modified NPDESpermit. [Section
301(h)(3), 40 CFR 125.63]

4.	The Hawaii Department of Health has determined that the applicant's proposed
discharge will not result in any additional treatment requirements on any other point or
non-point source. [Section 301(h)(4), 40 CFR 125.64] (HIDOHMarch 31, 1997, Letter)

5.	The applicant's existingpretreatment program was approved by EPA on 29 July 1982
and remains in effect. [Section 301(h)(5), 40 CFR 125.66]

6.	The EPA has indicated that the applicant is not at this time required to adopt local
limits for the priority pollutants detected in their effluent priority pollutant scan because
most of the data showed extremely low or non-detectable amounts. EPA will work with
the Hawaii Department of Health to ensure that other urban area pretreatment
requirements will be developed in the draft 301(h) permit. [Section 301(h)(6), 40 CFR
125.65]

7.	The applicant has a non-industrial source control program that is basically an
educational effort to inform the public about non-point and wastewater issues and
household toxic control measures. EPA is reviewing the proposal for continuation of its
original 1990 approval. [Section 301(h)(7),40 CFR 125.66(d)]

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8.	There will be no new or substantially increased discharges from the point source of the
pollutants to which the 301(h) variance will apply above those specified in the permit.
[Section 301(h)(8), 40 CFR 125.67]

9.	Based on information submitted in the reapplication and recent performance, the
applicant has demonstrated that they routinely achieve not less than 30% removal of
BOD and 60% removal of TSSfrom the influent stream, on a monthly average basis. This
will be a permit condition. The applicant is presently in compliance with federal water
quality criteria, and the receiving marine water does not contain significant amounts of
previously discharged effluent. [Section 301(h)(9), Section 303(e) of the WOA (Water
Quality Act of1987), 40 CFR 125.60]

10.	The Hawaii Office of Planning of the Department of Business, Economic
Development and Tourism (DBEDT) concurred with the City's coastal zone management
assessment that the discharge is consistent with the State's Coastal Zone Program. [40
CFR 125.59(b)(3)] (HI Office of Planning and DBEDT February 5, 1997, Letter)

11.	The Southwest Regional Office of the National Oceanic and Atmospheric
Administration's National Oceanic Service stated, in a letter dated 24 November 1995,
that presently no national marine sanctuary is affected by the discharge, but that if and
when the boundary of the Humpback Whale National Marine Sanctuary includes the
waters off Oahu, federal agency actions that may affect sanctuary resources are subject
to further consultation. [40 CFR 125.59(b)(3)]

12.	The applicant sought informal section 7 consultation with the U.S. Fish and Wildlife
Service (Smith May 13, 1994, Letter) and NOAA 's National Marine Fisheries Service
(Mclnnis May 18, 1994, Letter). These agencies replied that, based on available
information, the discharge is not likely to adversely affect listed threatened or
endangered species or habitat. [40 CFR 125.59(b)(3)]

13.	The Hawaii Department of Health (HIDOH) has indicated, in a letter dated 31 March
1997, that it will make its final decision whether or not to concur on the waiver following
preparation of a final 301(h) modified NPDES permit. [40 CFR 125.59(b)(3)]

Based on these findings, EPA concluded in the 1998 TD that CCH's proposed discharge from
the SIWWTP would comply with the requirements of Section 301(h).

The nine criteria and the EPA guidance used in 1998 remain unchanged and in effect, and should
form the same bases for EPA to continue the waiver in 2007. Moreover, since 1998, CCH has
made significant improvements to the SIWWTP and conducted almost a decade of additional
monitoring and reporting that reaffirm the conclusion that all nine Section 301(h) criteria still are
being met consistently.

Despite these facts, EPA has reached a predetermined 2007 TD to deny the waiver, and then
attempts to justify it based on very selective and often peripheral or immaterial elements of the

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record rather than consideration of the entire weight of evidence. Unlike the 1998 TD, the 2007
TD is based on speculation, a disregard of relevant data, and an arbitrary, unduly narrow, and
unsupportable evaluation of the Section 301(h) waiver criteria.

Response: EPA has based its decision on the statutory and regulatory requirements of section
301(h) of the Clean Water Act. In applying the criteria of section 301(h), EPA utilized the data
provided by the applicant, and considered factors such as the currently applicable water quality
standards, which in some cases have changed since 1998. The 1998 permit included a new
methodology for determining whole effluent toxicity (WET). Water quality criteria for
protecting recreational users from elevated levels of bacteria have changed since 1998.
Additionally, the 1998 decision and ensuing permit led to additional monitoring of the pesticides
chlordane and dieldrin. EPA agrees with the commenter that an additional decade of monitoring
data are now available for consideration. These monitoring data show that the section 301(h)
criteria are not met. Specifically, the available information shows that the water quality
standards for WET, chlordane, dieldrin and ammonia nitrogen would not be met by the proposed
discharge.

Section 301(h) does not allow for a weight-of-evidence approach. Rather, each of the 301(h)
criteria needs to be met for a variance to be granted. EPA's decision was not "predetermined."
EPA first analyzed each of the 301(h) criteria. Based on those analyses, EPA determined that
because not all the criteria were met, EPA could not grant the variance under the Clean Water
Act.

Comment C4: The following list provides examples where in 2007, without explanation or
justification; EPA deviated from its 1998 approach to arrive at its predetermined conclusion.

Response: Comment 4 is a summary listing several issues pointing out how the current Sand
Island decision denying CCH's application is different from the decision EPA made in 1998
granting a 301(h) variance. Most of the listed issues are covered in more detail in subsequent
specific comments. As was noted in responses to comment C3, many relevant factors applicable
to these decisions have changed since 1998; for example, more data are now available for EPA
to consider, and certain applicable water quality standards have changed. With regard to the rest
of the specific points set forth by the commenter, responses are provided after the five
summarized points listed below.

Comment C4.1. In 1998, with respect to the WQS, EPA designed and required that CCH
implement a monitoring program that uses a broad distribution of monitoring stations, including
stations at each of the four corners of the zone of mixing (ZOM), to assess impacts on water
quality (EPA Region IX and Hawaii State Department of Health, September 30, 1998).

"In the final permit, the EPA designed a monitoring program, with input from the

Permittee, to better elucidate the impacts of the effluent discharge on water

quality standards and recreational use. The core monitoring program in the final

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permit focuses on a grid design that has broader spatial coverage instead of
design centered tightly around the outfall (outlined in the existing permit); this
grid design allows for better assessment of the gradients of conditions around the
outfall and less reliance on comparisons between outfall stations and only one or
two control stations. This is critical for an area like Mamala Bay, where the
marine environment is impactedfrom a multitude of sources. When an
environment is influenced by a number of different sources, finding suitable
control stations can [be] difficult. The final permit redistributed the Permittee's
sampling effort from the existing permit and stations around the ZID in the
existing permit are relocated to better capture a wider spatial coverage. The final
permit's core monitoring program retains monitoring stations around the four
corners of the ZOM boundary; these same four stations shall also serve as the
nominal ZID stations (Part E. l.c). The EPA finds that four stations around the
ZOM boundary are sufficient to determining water quality standards compliance.
To maintain monitoring of water quality standards at the ZID boundary, the four
ZOM stations shall serve as the nominal ZID stations. Exceedances of standards
at the ZOM boundary will automatically be considered an exceedance at the ZID
boundary."

Also in 1998, in its response to comments to the proposed final modified NPDES Permit
(EPA Region IX and Hawaii State Department of Health, September 30, 1998), EPA agreed with
comments from members of the Water Resources Research Center (WRRC), which underscore
EPA's reliance on biomonitoring of ocean conditions in 1998.

Comment from Anthony Russo, WRRC, University of Hawai'i at Manoa: "For
the past decade, scientists with the Water Resources Research Center at UH
Manoa have been monitoring the effects of CCH's sewer outfalls on the
surrounding marine communities. To summarize, there is no evidence to indicate
a developing problem to the marine environment in the area near or at a distance
from the Sand Island WWTP discharge. A move to secondary treatment at this
time is unnecessary and would be fiscally unsound. "

Response: "The EPA agrees and is issuing its final decision and 301(h)-modified
NPDES permit for the Sand Island WWTP discharge. "

The position of the WRRC, and of marine researchers and scientists long-affiliated with the
WRRC, has not changed. Yet, remarkably, in its 2007 decision, EPA reverses its position and
asserts that the absence of monitoring at the ZID is a serious weakness in the monitoring data.
EPA, without explanation and justification, also discounts the real-world biomonitoring of
conditions in Mamala Bay and relies on the results of WET tests using an unapproved species,
speculative conclusions with regard to ammonia nitrogen, and flawed evaluations of chlordane
and dieldrin to reach a negative decision.

Response: With respect to the monitoring at the zone of initial dilution (ZID) versus the zone
of mixing (ZOM), the commenter is correct that the 1998 permit provides for monitoring at the

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boundary of a ZOM, which encompasses a larger area than that of the ZID, and thus allows for
more dilution than does the ZID. However, pursuant to Clean Water Act regulations
implementing 301(h) variances, all water quality standards must be achieved at and beyond the
ZID. (40 CFR 125.62(a)(i) and 125.58(dd); see also discussion p. 18-19 of tentative decision as
to the dimensions of the ZID.) In retrospect, monitoring at the ZID boundary would have
facilitated making determinations as to whether the proposed discharge would attain water
quality standards. In evaluating the data submitted in CCH's application, it is EPA's objective to
make conclusions about whether water quality standards would be achieved at the ZID pursuant
to the applicable 301(h) regulations. When considering effluent data, and applying dilution
ratios (e.g., for WET and pesticides), EPA was able to determine if standards would be attained
at and beyond the ZID. However, when evaluating data collected based on samples of marine
waters in the vicinity of the outfall, it was necessary to utilize samples taken at the ZOM. Thus,
for example, evaluations of attainment of the water quality standards for bacteria and ammonia
nitrogen are based on samples taken at the ZOM, at locations that are further from the outfall
than the ZID and therefore reflect additional dilution. Determinations made using ZOM data
may conclude that standards are attained, when, in fact, samples collected at the ZID boundary
would have exceeded standards. Nonetheless, EPA has determined that based on data collected
at the ZOM, the discharge does not attain the water quality standard for ammonia nitrogen. As
stated in the permit's monitoring program as quoted by the commenter, "exceedances of
standards at the ZOM boundary will automatically be considered an exceedance at the ZID
boundary."

Regarding the commenter's allegation that EPA discounted "real world biomonitoring," EPA
disagrees. To the contrary, EPA considered all available information in making its conclusion
that the discharge does not meet the 301(h) criteria. With regard to EPA's conclusion that the
applicant has not demonstrated that its discharge will not interfere with the attainment or
maintenance of that water quality which assures protection and propagation of a balanced,
indigenous population of shellfish, fish, and wildlife (BIP), please see response to comment C46.
Moreover, even if EPA had concluded that the applicant had met its burden regarding the BIP
criterion, section 301(h) also requires that the applicant demonstrate that its discharge will meet
all water quality standards. Here, water quality standards for ammonia nitrogen, chlordane,
dieldrin, and WET are not attained. The commenter seems to be suggesting that these
exceedances of water quality standards should be considered secondary to the results of the
WRRC's biomonitoring, and that a renewed variance should be issued based on this
biomonitoring. Such an approach would discount the required determination that water quality
standards be attained by the discharge, and would be inconsistent with the criteria established in
section 301(h).

EPA's response 10 years ago to the one specific comment quoted by the commenter should not
be read to imply that the results of biomonitoring are the only 301(h) criterion that must be met.
Rather, Congress specifically prescribed a set of criteria, all of which must be met for a 301(h)
variance to be granted.

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Comment C4.2. With respect to toxicity and the protection of a BIP of fish and shellfish, in the
1998 TD, EPA relied on the Mamala Bay Commission Study and on reports prepared by the
WRRC. In relying on these reports, EPA placed great weight on real-world environmental
monitoring that demonstrated that the outfall provided for the protection of a BIP of fish and
shellfish. However, in 2007, EPA disregards the 17 years of EPA directed monitoring conducted
by CCH. Instead, EPA relies on results of a WET test using an unapproved species, rejected by
EPA for compliance purposes in its own Permit, and on a speculative conclusion that, because of
some WET test failures and ammonia effluent limitation exceedances, CCH has not
demonstrated that the SIWWTP outfall can protect the maintenance of a BIP of fish and
shellfish.

In the 1998 TD, EPA based its conclusion on a broad-based view of all environmental
information, including fish tissue, sediment, benthic infaunal invertebrate communities,
nutrients, and other measures of water quality impacts. However, in the 2007 TD, EPA claims
that it draws on its TSD guidance document (EPA Office of Water, March 1991) to support its
reversal from a scientifically appropriate, broad-based view of all environmental information and
comes to a conclusion that is not supported by decades of monitoring. This same guidance was
in place at the time of the 1998 TD, at which time EPA reached a positive decision based on real-
world monitoring. EPA fails to explain why this TSD guidance (EPA Office of Water, March
1991) did not prevent the issuance of the waiver in 1998 yet somehow supports the negative
2007 TD.

The contrast in the approach used by EPA in 1998, which considered all monitoring information,
and in 2007, which inexplicably discounts CCH's extensive EPA-mandated environmental
monitoring as "limited" (despite EPA having modified and approved CCH's program), is
evidence that the 2007 TD is arbitrary and an attempt to justify a predetermined conclusion.

Response: As noted in response to comment C4.1 above, EPA considered all available
information in determining whether the 301(h) criteria are met. EPA is not disregarding
environmental monitoring data. To the contrary, EPA has evaluated these data. EPA has also
evaluated effluent data and data collected in marine waters in the vicinity of the outfall and
determined that not all applicable water quality standards have been attained. A renewed
variance can only be issued if all considerations lead to the conclusion that all the criteria in
section 301(h) have been met.

Regarding allegations made here by the commenter about the WET test, please see responses to
comments C31 and C32.

Regarding the commenter's allegation that EPA justifying its conclusions based on limitations in
CCH's monitoring program, please see response to comment C63, which explains that issues
related to CCH's monitoring program are not a basis of EPA's conclusion that the discharge does
not meet the criteria for a renewed variance.

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Comment C4.3. In contrast to the holistic approach taken in 1998, in 2007 EPA relies solely on
WET test results associated with the indigenous sea urchin T. gratilla (one of the two Permit-
required test species) to tentatively conclude that there are toxic compounds in the effluent that
may potentially affect the BIP. This was in spite of the fact that the other test species (C. dubia)
is on the EPA-approved list of sensitive species to be used for WET tests and showed no
unacceptable toxicity. Sole reliance on the T. gratilla test is unwarranted for a number of
reasons, including: (a) this indigenous sea urchin species is not on the EPA list of approved
species, (b) the bioassay test guidance is still in draft form, (c) EPA discourages the use of
indigenous species that have not been evaluated and approved through a rigorous inter-laboratory
testing protocol and water quality impact correlation studies, (d) EPA clearly recognized that
results from T. gratilla should not be used for compliance purposes, and (e) the other test species
used (C. dubia) for reporting, as well as additional EPA-approved species tested by CCH,
provide clear evidence of no unacceptable toxicity. EPA further concludes that this flawed
analysis is evidence that a BIP is not being maintained despite years of intensive and expensive
EPA-approved monitoring that contradicts this finding. In doing so, EPA is reaching for a
conclusion that is not supported by the weight of evidence CCH provided.

Response: See response to comments C31 through C38 which respond to the commenter's
points regarding WET testing.

Comment C4.4. In its 1998 positive Section 301(h) waiver decision, EPA did not find an
association between the SIWWTP outfall and bioaccumulation of toxics in fish tissue. Now,
EPA ignores more than 17 years of real-world fish tissue analysis showing that there is still no
unacceptable bioaccumulation. Instead, EPA speculates that the outfall "may" be contributing to
bioaccumulation because of the apparent presence of dieldrin and chlordane in the effluent.
Additional recent analysis of the SIWWTP effluent by CCH, using a more precise and definitive
analytical technique than that contained in the Permit, indicates that (a) dieldrin is not detectable
in the effluent and (b) chlordane is not present at levels that exceed EPA's currently-accepted
protective level. EPA speculation that CCH has not demonstrated that it can protect the
maintenance of recreational activities is, therefore, unfounded.

Response: See responses to comments C29, C57, C58, and C59 regarding EPA's conclusions
regarding the analysis of chlordane and dieldrin, the exceedances of water quality standards for
these two pesticides, and the consideration of fish tissue data.

Comment C4.5. In its 1998 positive Section 301(h) waiver decision, EPA redesigned and
mandated a monitoring program to evaluate compliance with waiver requirements and to
determine impacts to water quality associated with the outfall separate from the discharge of
other pollutants to Mamala Bay. CCH accepted and implemented this monitoring program. The
Permit specified that EPA or the state could require additional monitoring if it were determined
that other parameters or more frequent sampling were needed.

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However, in the 2007 TD, EPA concludes that the monitoring program is insufficient and that
the data collected are "limited." In so doing, EPA discounts more than 17 years of
biomonitoring demonstrating that the outfall discharge has not adversely affected a BIP of fish
and shellfish and has not exceeded criteria for toxic impacts to aquatic organisms and to human
health. It is, therefore, unjustified and inconsistent for EPA to now assert that the data are too
limited to conclude that the outfall does not protect and maintain a BIP of fish and shellfish.

If EPA had had concerns with the monitoring program that it redesigned and approved in 1998, it
should have required the additional monitoring it felt it was lacking as contemplated by Special
Condition J5 of the Permit. Instead, EPA raised no objections, and now "sandbags" CCH with
allegations of insufficient monitoring, turning EPA's failure to use its discretion to amend CCH's
monitoring program into justification to tentatively deny the SIWWTP Section 301(h) waiver.

The inconsistencies between the 1998 TD and the 2007 TD demonstrate an abrupt and
unjustified change in approach; an arbitrary and inconsistent interpretation of environmental
information gathered at EPA's direction; and an apparent attempt to support predrawn
conclusions that are contrary to the data CCH provided. Throughout the 2007 TD, EPA
demonstrates a consistent failure to consider the weight of evidence—the only appropriate and
rational approach, and the approach EPA used in making its positive decision in 1998 and in
designing the monitoring program that CCH has implemented. A review of historical and
current information provided by the Section 301(h) monitoring program indicates that the
conditions observed in the environment today, including those in the mixing zone, are consistent
with the data EPA used in the 1998 TD to approve the Section 301(h) waiver. In short, the same
weight of evidence approach that justified the waiver in 1998 compels its renewal now. The 2007
TD contains nothing to demonstrate otherwise.

Response: Please see response to comment C63 which explains that issues related to CCH's
monitoring program are not a basis of EPA's conclusion that the discharge does not meet the
criteria for a renewed variance. See also response to comment C3 regarding the weight-of-
evidence approach and the assertion that EPA's decision is "predetermined" or "predrawn."

Comment C5: On March 19, 2008, CCH requested an evidentiary hearing on the 2007 TD.
CCH's request was based on its concern that, without an evidentiary hearing, EPA would rescind
CCH's waiver without meeting the requirements of procedural due process under the Fifth
Amendment to the U.S. Constitution. CCH's request was based on EPA's tentative findings with
regard to CCH's credibility, which unquestionably reflect unsubstantiated value judgments on
factual issues with regard to CCH's conduct (such as, but not limited to, CCH's ability to
consistently achieve WQS). Courts have found, and EPA has acknowledged, that administrative
review proceedings under the CWA are designed to conform with the Constitutional right to due
process. Under circumstances such as these, where facts are clearly at issue, courts have found
that the Due Process Clause requires a full evidentiary hearing.

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CCH urges EPA to grant its request. Should EPA deny CCH's request for an evidentiary hearing,
EPA would violate CCH's Constitutional rights under the Due Process Clause to CCH's
irreparable injury.

Response: The commenter is correct that EPA denied CCH's request for an evidentiary hearing.
As discussed in EPA's letter denying the request, evidentiary hearings are neither required nor
provided for by either EPA's specific regulations regarding the Section 301(h) process, or by the
general regulations for NPDES permitting that are applicable to the Section 301(h) process.
Rather, interested persons can rebut, refute, and/or counter EPA's tentative findings by testifying
at a public hearing and/or by submitting written comments. EPA is required to consider the
comments, and to address them in a written response to comments. EPA's regulations further
provide that a final decision may be appealed to the Environmental Appeals Board, which is a
prerequisite to judicial review.

The bases for EPA's TDD did not involve the type of credibility determination for which cross-
examination may be necessary to provide due process. EPA's tentative decision was based on
analysis of data and information submitted by CCH, not determinations regarding the credibility
of witness testimony. Specifically, EPA's tentative decision-making regarding achievement of
State water quality standards was based on data and analysis provided in the administrative
record.

BOD and Turbidity

Comment C6: EPA does not dispute that applicable water quality criteria exist for BOD and
turbidity.

Response: As indicated on pages 20 and 21 of the tentative decision, EPA clearly states that the
State of Hawaii has established water quality standards for dissolved oxygen and turbidity.
Hawaii's water quality standards do not contain criteria for BOD. Instead, dissolved oxygen is
assessed as a surrogate for BOD.

Comment C7: As EPA acknowledges, CCH has clearly demonstrated that the SIWWTP can
consistently meet the BOD and TSS concentration and mass requirements in the existing Permit,
in addition to the 30 percent BOD and 60 percent TSS removal requirements for primary
treatment. SIWWTP will continue to meet the existing BOD, TSS, 30 percent BOD removal,
and 60 percent TSS removal requirements in the next NPDES permit cycle.

Response: EPA did not assess mass requirements or other requirements of the permit. As
discussed on page 20 of the tentative decision, EPA concluded that the discharge has consistently
met 30% removal for TSS and there have only been four occasions since 1999 when the
discharge did not meet 30% removal for BOD. The discharge has consistently met the 30%
removal requirement for BOD since February 2004, and recent data indicate removal of BOD
and TSS well above 30%.

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Comment C8: The WQS for DO in Class A waters is 5 milligrams per liter (mg/L).

Response: As described on pages 21 and 22 of the tentative decision, the Hawaii water quality
standard for Class A, open coastal waters requires dissolved oxygen to not be less that seventy-
five per cent saturation, determined as a function of ambient water temperature and salinity.
EPA calculated the DO saturation concentration from ambient temperature and salinity values
for November 1999 through April 2007 at the upcurrent reference station E6. For the monitoring
events conducted from November 1999 through April 2007, DO saturation concentration values
ranged from 6.9 to 7.25 mg/L at E6, and the corresponding 75% values ranged from 5.18 to 5.44
mg/L. All measured DO concentrations for each monitoring station at the ZOM (ZID data are
not available) were then compared to the 75% DO saturation concentration at the corresponding
depth of reference station E6. With one exception, measured DO concentrations ranged from
5.18 to 6.99 mg/L. When compared by event, all reported concentrations were at or above the
75%) saturation concentration at the corresponding depth of reference station E6. EPA found that
the applicant had demonstrated the ability to meet the Hawaii water quality standards for DO.

Comment C9: In the 2007 TD, EPA states the following: EPA concludes that that proposed
discharge would consistently attain the Hawaii water quality standard for DO.

SIWWTP will continue to meet the WQS for DO. EPA does not dispute that SIWWTP will
continue to meet DO WQS.

Response: EPA agrees with this comment.

Comment C10: In the 2007 TD, EPA states the following: EPA concludes that the proposed
discharge will consistently attain the Hawaii water quality standards for turbidity and LEC.

SIWWTP will continue to meet the WQS for turbidity and light extinction coefficient (LEC).
EPA does not dispute that SIWWTP will continue to meet these standards for turbidity and LEC.

Response: EPA agrees with this comment.

Dilution

Comment Cll: EPA's conclusion with regard to water quality standards depends, in large part,
on EPA's use of conservative dilution values.

Response: EPA's calculation of the critical (i.e., minimum) initial dilution value and the
subsequent application of this value to assess water quality standards is in accordance with the

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guidance presented in the Amended Section 301(h) Technical Support Document (ATSD) and
Hawaii's water quality standards.

Comment C12: EPA's approach to dilution in the 2007 tentative decision differs from the
approach used in the positive 1998 tentative decision.

Response: EPA assessed the data presented in the application, in addition to supplemental data
submitted by CCH in its annual assessment reports for Sand Island, according to the guidance
presented in the ATSD. Specifically, EPA reviewed 33 temperature, salinity, and density
profiles provided by CCH in its annual assessment reports. With this large number of profiles
available for EPA to assess, it is understandable that EPA's assessment would evolve and not
remain identical to the result used in older decisions.

Comment C13: In making its critical initial dilution calculations, EPA used the Visual Plumes
model. Visual Plumes has three optional initial dilution routines: UM3, RSB, and DKHW.

These routines give somewhat different values, but generally not so different that they would
affect overall conclusions concerning the acceptability of an effluent discharge.

Response: EPA agrees with this statement. In making its dilution calculations, EPA used the
Visual Plumes model (2003), which supersedes the DOS PLUMES modeling system that CCH
had used in its application.

Comment C14: In addition to using a conservative routine (UM3), EPA also chooses to take an
unnecessarily conservative approach that is not reflective of actual typical conditions.
Specifically, EPA uses the worst-case density profile that occurred when the diffuser was just
below a sharp pycnocline.

Response: EPA follows a conservative approach in order to be protective of water quality. EPA
followed the ATSD guidance when assessing the initial dilution presented by CCH in its Sand
Island application and when calculating a revised critical initial dilution from additional data
submitted by the applicant. The ATSD indicates that the lowest (i.e. critical) initial dilution must
be computed for each of the critical environmental seasons.

To determine the critical initial dilution, EPA calculated initial dilution from 33 temperature,
salinity, and density profiles that were collected by CCH at monitoring station E2 in the Sand
Island receiving water. These profiles were collected on a quarterly basis from February 1999
through May 2005. EPA calculated the most critical initial dilution from the profile collected on
July 2, 2002. This profile resulted in a critical initial dilution of 103:1.

CCH's application did not present all of the data used in making their estimate of 150:1 as the
critical initial dilution value. As stated in EPA's TDD, the application did not contain printouts
of modeling results or an overall summary of the critical initial dilution modeling results. CCH's

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2003 application made numerous references to older data contained in the 1994 application (for
the 1998 decision), but the data applied in the model are not clearly indicated or presented.
Therefore, it was not possible to cross reference the two applications in order to derive all the
data applied by CCH in determining its estimate of initial dilution. Furthermore, the current
application indicated that the initial dilution values determined in the Sand Island annual
assessment reports ranged from 106.3 to 523. There is no explanation in the application why
106.3:1 was not presented as the critical initial dilution, but this value is in close agreement with
EPA's calculation of 103:1.

Comment C15: For all practical purposes, there is never a zero current speed.

Response: When calculating the critical initial dilution for the Sand Island receiving water, EPA
applied a current speed of 0.00001 m/s in the Visual Plumes model. This is the same current
speed applied by CCH in the modeling presented in their annual assessment reports. If it had
been presented in the application, EPA would have used the current speed applied by CCH in its
modeling, if it seemed appropriate. However, this information was not clearly presented in the
application. Therefore, EPA applied the same current speed applied by CCH in their annual
assessment reports.

Comment C16: The use of highly conservative assumptions, when applied to concentrations of
effluent constituents found at the edge of the mixing zone, affects the findings of EPA's
evaluation by leading a casual reader to conclude that unacceptable adverse effects are associated
with the SIWWTP discharge when it has been documented through years of environmental
monitoring that the exact opposite is the actual case.

Response: 40 CFR 125.62 (a)(i) requires water quality standards to be met at the edge of the
zone of initial dilution. EPA followed the ATSD, Hawaii's water quality standards at HAR 11-
54-4(b)(3), and the HDOH State Toxics Control Program: Derivation of Water Quality-Based
Discharge Toxicity Limits for Biomonitoring and Specific Pollutants when applying the lowest
(i.e., critical or minimum) initial dilution to assess concentrations of toxic pollutants. This
critical initial dilution value was also applied, following the ATSD, when determining attainment
of water quality standards related to BOD and turbidity. See also response to comment CI 7.

Comment C17: The unrealistically low initial dilution EPA applies in the 2007 tentative
decision represents a substantial change from the approach used by EPA in the 1998 tentative
decision. This significantly different approach, which was implemented without the presentation
of a technical justification for such a change, demonstrates EPA's attempt to justify a
predetermined conclusion that is not supported by the years of complex and expensive
environmental monitoring that EPA demanded as a practical measurement of whether actual
adverse effects result from the discharge of primary-treated effluent.

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Response: EPA determined the initial dilution for the Sand Island according to the guidance
provided in the ATSD and with the use of recent data collected from 1999 to 2005. EPA's
process to calculate the initial dilution was clearly explained in the 2007 tentative decision and
supported by documents contained in the administrative record for the 2007 tentative decision.
While the critical initial dilution applied in the 1998 decision was 94:1, the initial dilution
calculated for the 2007 tentative decision was 103:1, a slightly larger value. This is the result of
assessing a large number of receiving water profiles.

Again, EPA's conclusion was not "predetermined." Additionally, while environmental
monitoring is necessary to support a renewed 301(h) variance, it is only one part of the 301(h)
assessment. It is also necessary to assess whether water quality standards are met. Water quality
standards have been developed to protect beneficial uses of water bodies and prevent severe
impacts to the receiving water. Assessing whether or not water quality standards are being
attained, as well as the results of current biomonitoring, is necessary to ensure complete
protection of the receiving water.

Results of environmental monitoring are specifically considered in EPA's analysis of whether
the applicant has demonstrated that the discharge will not interfere with the attainment or
maintenance of water quality which assures protection and propagation of a balanced, indigenous
population (BIP) of shellfish, fish, and wildlife in areas actually or potentially impacted by the
discharge. In making this determination, as described in the TDD, EPA analyzes three types of
information: biological data, whole effluent toxicity data, and chemical-specific water and
sediment quality data. Here, while available biological data do not demonstrate impacts to
species in the vicinity of the outfall, whole effluent toxicity and chemical-specific (ammonia
nitrogen) water data results present a different picture. As a result of the toxic effects found in
whole effluent toxicity testing, and the potential impacts on wildlife due to exceedances of the
water quality standard for ammonia nitrogen, EPA concluded that the applicant had not
demonstrated that the discharge under a renewed variance would not interfere with the
attainment or maintenance of water quality which assures a balanced indigenous population of
shellfish, fish, and wildlife.

Bacteria

Comment C18: Pursuant to BEACH Act requirements, states are to evaluate offshore water
use classifications and apply the appropriate Enterococcus limit. HDOH has done so (although
formal adoption is still in process), and has proposed revising the WQS to provide for an
Enterococcus standard of 35 cfu/100 ml from the shoreline to 3 miles offshore and to a depth of
100 feet (to be applied as a geometric mean) and to establish single-sample maximum values of
100 cfu/100 ml up to a distance of 500 meters offshore and 501 cfu/100 ml at distances greater
than 500 meters from shore.

Response: In the TDD, EPA found that the Sand Island facility could meet water quality
standards for bacteria, provided the disinfection system was adequately operated and maintained.
The final decision retains this finding. Therefore, this comment does not present grounds to

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reconsider the tentative decision. Nevertheless, we are providing a detailed response in order to
clarify portions of the Sand Island TDD.

In accordance with the Beaches Environmental Assessment and Coastal Health (BEACH) Act of
2000, EPA promulgated bacteria criteria for coastal recreational waters in November, 2004.
EPA promulgated a geometric mean of 35 cfu per 100 mL and a range of four single sample
maximum values between 104 and 501 cfu per 100 mL. In Hawaii, the promulgated criteria
apply to marine waters between 300 meters (1,000 feet) from shore and three miles from shore.
(EPA did not promulgate bacteria criteria for Hawaii waters less than 300 meters from shore,
because Hawaii already had standards applicable to those waters that were consistent with the
BEACH Act requirements.) EPA's promulgated rule expects States to apply the appropriate
single sample maximum value based on the use frequency of coastal recreational waters. By
letter dated December 15, 2004, EPA specifically asked HDOH to indicate which of the SSM
values set forth in the rule will apply to Hawaii's waters more than 300 meters from shore. In its
response dated September 6, 2005, HDOH responded that it "intends to propose that the 100
CFU/100 mL SSM be extended to 500 m from shore, and the SSM beyond 500 m be set at 501
CFR/100 mL." Therefore, EPA applied this single sample maximum value when assessing
bacteria concentrations of samples collected at monitoring stations located in waters beyond 500
meters from shore. However, EPA also assessed the same sample results against the 104 cfu per
100 mL value, because this is the single sample maximum value applied by HDOH in the Kailua
Regional Wastewater Treatment Plant permit (permit number HI0021296) to monitoring
conducted in waters beyond 500 meters from shore. Because the Kailua permit was issued after
HDOH's 2005 letter, it was unclear whether HDOH still considered the higher SSM number
appropriate. HDOH did not submit any comments during the public comment period on the
TDD indicating that EPA's approach was inconsistent with Hawaii's water quality standards.
Nevertheless, in the tentative decision, EPA concluded that the Sand Island facility could meet
these standards with use of its disinfection system.

HDOH has not adopted any of the possible changes to its water quality standards discussed in the
comment. EPA understands that HDOH is developing a proposal to change the enterococcus
geometric mean standard to 35 cfu/100 mL from the shoreline to three miles offshore, but
HDOH has not yet even formally proposed this change. In 2005, the State of Hawaii did
propose, as part of a larger revision to HAR Chapter 11-54-8, an amendment that would limit
application of the bacteria criteria to a depth of 100 feet. However, this proposed amendment
has not been acted on by the State. Any proposed amendment to the criteria in Hawaii's water
quality standards must first go through the public review process before being adopted by the
State and then submitted to EPA for approval. Only after the approval of amended water quality
criteria would EPA consider the revised criteria when assessing water quality data, including in a
301(h) evaluation.

Additionally, any limitation of criteria by depth would also require an amendment to the water
use classifications (i.e., the designated uses) in Hawaii's current water quality standards.

Without amending the current designated use, the limitation of State criteria to a depth of 100
feet would not mean that no criteria were applicable to depths below 100 feet, but that EPA's
promulgated criteria would still apply to depths below 100 feet, because all marine waters

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beyond 300 feet from shore are currently designated for recreational use (see discussion of
recreation use for Class A open coastal waters in the TDD page 39).

Comment C19: HDOH has specifically informed EPA that it believes that the appropriate
single-sample maximum to apply under the existing EPA-promulgated single-sample limitations
in the vicinity of the SIWWTP outfall (in waters more than 500 meters offshore) is 501 cfu/100
mL, as allowed for in the EPA-promulgated rules for offshore waters when states have not set
limits. EPA evaluates two EPA-promulgated potential standards for offshore waters (104 cfu/100
mL and 501 cfu/100 mL).

Response: As with comment CI8 and other comments regarding the bacteria standards, these
comments do not require a reevaluation of EPA's bacteria conclusions, as we have concluded
that the Sand Island facility can meet WQS so long as disinfection is used.

EPA did evaluate single samples in nearshore and offshore waters against two values (104 cfu
per 100 mL and 501 cfu per 100 mL). As discussed in the tentative decision, EPA first assessed
the nearshore and offshore sample results based on 501 cfu per 100 mL. Additionally, EPA also
assessed the same sample results against the 104 cfu per 100 limit because this is the single
sample maximum value applied by HDOH in the Kailua Regional Wastewater Treatment Plant
permit (permit number HI0021296), as discussed in response to comment C18.

EPA evaluated the data both ways because the HDOH has not clearly adopted a single sample
maximum value for waters beyond 300 meters from shore. HDOH informed EPA, in a letter
dated September 6, 2005, that it intended to propose the single sample value of 501 cfu per 100
mL for waters beyond 500 meters from shore; however we are not aware of a formal proposal or
adoption, nor does the 501 cfu SSM appear to be consistent with the Kailua permit adopted in
2006. HDOH did not submit any comments during the public comment period on the TDD
indicating that EPA's approach was inconsistent with Hawaii's water quality standards.

Comment C20: In making its review, EPA acknowledges that the current HAR Enterococcus
criteria for shoreline and recreational waters (geometric mean of 7 cfu/100 mL; single-sample
maximum of 100 cfu/100 mL) apply within 1,000 feet of shore and the EPA-promulgated
criterion (geometric mean of 35 cfu/100 mL) applies between 1,000 feet and 3 miles offshore.
In making its evaluation, EPA apparently failed to recognize that one of the "Recreational"
stations (R3) that CCH monitors is more than 1,000 feet from shore and that the EPA-
promulgated criterion should have been applied at this station. Therefore, although there were
very few exceedances of limits at these "Recreational" stations, EPA concludes that there were
approximately twice as many exceedances of Enterococcus criteria at these stations than what
were actually the case.

Response: Station R3 is located at the mouth of Keehi Lagoon and outside of the 300 meter
mark (see Figure 3 in EPA's Sand Island tentative decision). EPA followed the pattern set by
CCH in their annual assessment report and grouped R3 with stations R1 and R2 when assessing

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data from these stations. EPA agrees that station R3 could have been assessed against the less
restrictive criteria. Ultimately, EPA concluded that the discharge, after adequate disinfection,
can meet water quality standards for bacteria so the determination of which enterococcus
standard to use for this station does not make a difference.

Comment C21: Although the 2007 TD did not exclude the discharge plume as a potential
source of the very occasional Recreational stations' exceedances, it did not define it as the
source. CCH believes that no reason exists to make such an association. Moreover, the
occurrences are truly minuscule with respect to the potential for human exposure to
concentrations above WQS.

Response: It is true that EPA did not exclude the discharge plume as a potential source of
occasional exceedances of bacteria criteria at stations Rl, R2, and R3. In the Sand Island
tentative decision, EPA concluded that exceedances at these three stations occurred mainly in the
rainy months and generally in the surface samples. EPA also stated that the contribution from
non-point sources of bacterial contamination cannot be ruled out. Overall, EPA concluded that
the discharge can meet water quality standards for bacteria, after adequate disinfection.

Comment C22: The 1998 TD granting the Section 301(h) waiver provided for future
disinfection in those rare instances when oceanographic conditions exist that might drive the
plume onshore. This situation would require the simultaneous occurrence of three factors: a
surfacing plume; a Kona Wind condition; and currents that would carry the plume onshore.
Preliminary calculations indicate that the simultaneous occurrence of these conditions would
occur very infrequently. Therefore, CCH believes that the concept of disinfection when and if
needed should be incorporated in future NPDES permits and that it is unnecessary to operate a
UV system on a continuous basis to meet WQS.

Response: EPA's 1998 decision on CCH's application for a 301(h) variance for the Sand Island
WWTP was issued prior to EPA's promulgation of bacteria criteria for coastal recreational
waters in November 2004. In the 1998 decision, bacteria criteria were not applied to waters
between 300 meters (1,000 feet) from shore and three miles from shore. Since EPA's
promulgated criteria now apply to these waters, the next permit will require the geometric mean
of 35 cfu per 100 mL and a single sample value to be applied in the vicinity of the outfall.
Effluent monitoring data from the Sand Island facility show that the bacteria criteria that now
apply to waters beyond 300 meters (1,000 feet) from shore cannot be met without disinfection of
the final effluent. In the tentative decision, EPA concluded that the discharge can meet water
quality standards for bacteria, provided CCH adequately operates and maintains the UV
disinfection system.

Toxics

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Comment C23: For the purposes of this evaluation, a correction was made for an admitted 10-
fold error inherent in the WQS reported in HAR 1 l-54-4(b)(3) for chlordane. As EPA knows, the
corrected value is 0.00016 micrograms per liter ((J,g/L), and the HDOH has affirmed its intent to
rectify this error. Nonetheless, EPA calculated exceedances based on this undisputedly erroneous
standard and refuses to correct the annual average concentration and mass limits for chlordane in
the Permit.

Response: The Hawaii water quality standard protective of fish consumption for the
carcinogenic pesticide chlordane is 0.000016 |ig/L. This is the value that HDOH proposed,
presented to the public for review in 1989, and then adopted in 1990. This was the value EPA
subsequently approved in 1990 under section 303(c) of the CWA.

Earlier reviews of the Hawaii water quality standards by HDOH did not determine the chlordane
fish consumption criterion to be incorrect. HDOH reviewed its water quality standards and
presented corrections of inadvertent typographical errors in the State of Hawaii's Office of
Environmental Quality Control publication The Environmental Notice on November 8, 2000.
The fish consumption value associated with chlordane was not mentioned in this correction. In
2003, a package of amendments to the water quality standards, including the correction of
inadvertent typographical errors, was distributed for public comment. Again, the fish
consumption value associated with chlordane was not mentioned in this 2003 package of draft
amendments when it was presented to the public. In 2004, HDOH formalized the correction of
the inadvertent typographical errors that were posted for the public's review in 2003. As part of
a larger package of amendments, the corrections of these typographical errors in the Hawaii
water quality standards were adopted by the State of Hawaii on August 31, 2004, and approved
by EPA on October 28, 2004. The fish consumption value associated with chlordane was not
amended in this 2004 action by the State of Hawaii.

Although, in October 2007, HDOH stated their intent to amend the fish consumption water
quality standard for chlordane, they have not yet conducted the formal process to amend the
Hawaii water quality standards. In accordance with 40 CFR section 131.20, this process requires
the State to present the proposed amendments and the rational for the amendments, conduct
public meetings to explain and discuss the proposed amendments with the public, receive and
respond to public comments on the proposed amendments, formally adopt the amendments, and
then request and receive EPA's approval for the amendments. Until an alternative criterion is
approved, 0.000016 |ig/L remains the water quality standard for fish consumption for chlordane
and is the appropriate value for the 301(h) evaluation.

Nevertheless, EPA has examined whether or not the levels of chlordane would exceed 0.00016
|ig/L, the value CCH asserts is the corrected value. Figures 3a and 3c in the final decision
document show that the levels of chlordane in the effluent have exceeded 0.00016 |ig/L.

Comment C24: Figure IIB-1 depicts the monthly effluent concentrations reported for
chlordane from 2000 through 2007 (bars), as well as the computed running annual average
concentrations (pink line). Over the 94-month evaluation period, there were 42 months where the

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calculated annual average concentration of chlordane slightly exceeded (by up to 1.5-fold) the
corrected Permit limit of 0.076 |ig/L (shown as the lower horizontal line)

Response: The tentative decision does not assess compliance with permit limits for toxic
pollutants; rather, it assesses whether water quality standards are met. Even if the existing
permit limits were the relevant factor, the commenter acknowledges that these limits were not
achieved in 42 of 94 months, which is a significant number of exceedances.

In the Sand Island permit, which was issued in 1998, the chlordane permit limit for fish
consumption is 0.0076 |ig/L. This discharge limitation is based on the Hawaii water quality
standard for fish consumption for chlordane, 0.000016 |ig/L, multiplied by the average initial
dilution from the 1998 tentative decision for Sand Island, which was 476:1.

As discussed in the Sand Island tentative decision starting on page 47, the revised average initial
dilution for the Sand Island discharge is 294:1. While the 1998 permit applied the previous
average initial dilution value from the 1998 tentative decision, the March 2007 tentative decision
applies the updated average initial dilution value, which is based on more recent monitoring data.

In the December 2007 tentative decision, effluent concentrations of toxic pollutants in the Sand
Island discharge were assessed against Hawaii's water quality standards, in accordance with
HAR 1 l-54-4(b)(3). In EPA's tentative decision on CCH's application for the Sand Island
WWTP, compliance with permit limits was not considered in EPA's assessment of toxic
pollutants in the effluent.

In accordance with HAR 1 l-54-4(b)(4)(A)(iii), the twelve month average concentration of
chlordane, a carcinogenic toxic pollutant, in the effluent was assessed against the water quality
standard for fish consumption multiplied by the average dilution. The average dilution for the
Sand Island discharge is 294:1, and the Hawaii water quality standard for fish consumption for
chlordane is 0.000016 |ig/L. The product of these two values is 0.0047 |ig/L. Therefore, 0.0047
|ig/L is the target value EPA used in its analysis, based on the Hawaii chlordane water quality
standard for fish consumption and the average initial dilution.

EPA reviewed and assessed effluent monitoring data reported in DMRs as an annual average
from December 1998 through August 2007. This period covered 105 months. The annual
average chlordane concentrations reported in DMRs for this period ranged from 0.019 to 0.79
|ig/L.1 All of the 105 reported values exceeded the target value.

The other way to view and assess the reported values against the Hawaii chlordane water quality
standard for fish consumption is as it was written in the tentative decision. In the tentative
decision, the range of reported values was divided by the average initial dilution, and the results
were compared to the Hawaii chlordane water quality standard for fish consumption, which is
0.000016 |ig/L. As stated on page 49 of the tentative decision, the range of estimated chlordane

1 The range of reported annual average chlordane concentrations was mistakenly stated in TDD as 0.19 to 0.79 |ig/L.
The actual reported range is 0.019 to 0.79 |ig/L. This is corrected in the final decision.

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concentrations at the ZJD was 0.000065 to 0.0027 |ig/L. All of these values are above the
Hawaii chlordane water quality standard for fish consumption, 0.000016 |ig/L.

For the final decision and in response to these comments, EPA also analyzed data submitted
subsequent to the tentative decision and concluded that the chlordane standard continued to be
exceeded. See response to comment C29.

Comment C25: HDOH has not revised its WQS for chlordane and dieldrin since the 1990s. As
a result, the WQS for chlordane listed in HAR 1 l-54-4(b)(3) is derived from an outdated 1980
EPA ambient water quality criteria document: Ambient Water Quality Criteria for Chlordane
(1980 AWQC; EPA, October 1980).

Since the adoption of the current WQS for chlordane and dieldrin, the 1980 AWQC has been
superseded based on significant federal regulatory changes that provide a more reliable
protective concentration of chlordane via fish consumption. In 1997, EPA released its
Toxicological Review of Chlordane (Technical) (EPA, December 1997). EPA's review contained
results of several newer toxicological studies, which indicated that the carcinogenic potency of
chlordane was about 4.6-fold lower than believed at the time the 1980 AWQC were developed.
In addition to updates in toxicity data, in 2002 EPA updated some of the fundamental
assumptions used for computing fish consumption criteria. This was done in accordance with the
Federal Register announcement on November 3, 2000 (Volume 65, Number 214), entitled
Revisions to the Methodology for Deriving Ambient Water Quality Criteria for the Protection of
Human Health (2000). For example, fish ingestion rates previously believed to be 6.5 grams per
day were revised upward to the current 17.5 grams per day, based on recent national fish
consumption records. Based on these scientific improvements in toxicity and exposure
estimation, EPA released updated AWQC in National Recommended Water Quality Criteria:
2002 (2002 AWQC; EPA Office of Water, November 2002). For chlordane and dieldrin, these
2002 AWQC continue to be in effect (National Recommended Water Quality Criteria [2006
AWQC; EPA Office of Water, 2006]). However, HDOH still has not revised its WQS
accordingly. On March 5, 2008, CCH formally requested HDOH to update its WQS. EPA's
reliance on criteria that have been superseded represents EPA's arbitrary and unjustified attempt
to support its predetermined conclusion.

Response: It is not appropriate for EPA to assess the effluent concentrations of chlordane and
dieldrin against criteria that may or may not be adopted in the future. In the tentative decision
for the Sand Island discharge, EPA assessed the effluent concentrations of chlordane and dieldrin
against Hawaii water quality standards contained in HAR 1 l-54-4(b)(3). See also response to
comment C23.

Comment C26: Table IIB-1 (included in the comments) provides a comparison of calculated
effluent limits based on the WQS versus the 2006 AWQC. Using the 2006 chlordane AWQC
(0.00081 (J,g/L) currently considered by EPA to be protective of a fish consumption pathway,
combined with EPA's calculated ADC of 294 for consumption of fish containing carcinogens,

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the protective concentration of chlordane in SIWWTP effluent is calculated to be 0.238 |ig/L
(0.00081 x 294 = 0.238 (^g/L). This updated effluent limit is shown as the upper horizontal line
on Figure IIB-1. As can be seen from the figure, the annual average concentration of chlordane
in the effluent has never exceeded the protective level over the entire evaluation period of 2000-
2007.

Response: The value cited in this comment, 0.00081 (^g/L, is not Hawaii's water quality
standard. Therefore, CCH's review of the monitoring data against this value is not relevant.

Comment C27: Figure IIB-2 (in the comments) depicts the monthly effluent concentrations
reported for dieldrin from 2000-2007 (bars), as well as the computed running annual average
concentrations (pink line). Over the 94-month evaluation period, the calculated annual average
concentration of dieldrin (based on results reported by CCH using the analytical method
specified in the Permit) exceeded the Permit limit of 0.012 [j,g/L (shown as the horizontal line).

Response: The tentative decision does not assess compliance with permit limits for toxic
pollutants; rather, it assesses whether water quality standards are met.

In the Sand Island permit, which was issued in 1998, the dieldrin permit limit for fish
consumption is 0.012 |ig/L. This discharge limitation is based on the Hawaii water quality
standard for fish consumption for dieldrin, 0.000025 |ig/L, multiplied by the average initial
dilution from the 1998 tentative decision for Sand Island, which was 476:1.

As discussed in the Sand Island tentative decision starting on page 47, the revised average initial
dilution for the Sand Island discharge is 294:1. While the 1998 permit applied the previous
average initial dilution value from the 1998 tentative decision, the December 2007 tentative
decision applies the updated average initial dilution value, which is based on more recent
monitoring data.

In the December 2007 tentative decision, effluent concentrations of toxic pollutants in the Sand
Island discharge were assessed against Hawaii's water quality standards, in accordance with
HAR 1 l-54-4(b)(3). In EPA's tentative decision on CCH's application for the Sand Island
WWTP, compliance with permit limits was not considered in EPA's assessment of toxic
pollutants in the effluent.

In accordance with HAR 1 l-54-4(b)(4)(A)(iii), the twelve month average concentration of
dieldrin, a carcinogenic toxic pollutant, in the effluent was assessed against the water quality
standard for fish consumption multiplied by the average dilution. The average dilution for the
Sand Island discharge is 294:1, and the Hawaii water quality standard for fish consumption for
dieldrin is 0.000025 |ig/L. The product of these two values, 0.0074 |ig/L, is the target value for
comparison with the results of effluent monitoring. If the effluent exceeds this value, then the
discharged effluent would exceed the water quality standard after average initial dilution.

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EPA reviewed and assessed effluent monitoring data reported in DMRs as an annual average
from December 1998 through August 2007. This period covered 105 months. The annual
average dieldrin concentrations reported in DMRs for this period ranged from 0.013 to 0.047
|ig/L. All of the 105 reported values exceeded the target value of 0.0074 |ig/L.

The other way to view and assess the reported values against the Hawaii dieldrin water quality
standard for fish consumption is as it was written in the tentative decision. In the tentative
decision, the reported effluent values were divided by the average initial dilution, and the results
were compared to the Hawaii dieldrin water quality standard for fish consumption, which is
0.000025 |ig/L. As stated on page 49 of the tentative decision, the range of estimated dieldrin
concentrations at the ZID was 0.000044 to 0.00016 |ig/L. All of these values are above the
water quality standard, 0.000025 |ig/L.

For the final decision and in response to these comments, EPA also analyzed data submitted
subsequent to the tentative decision and concluded that the dieldrin standard continued to be
exceeded. See response to comment C29.

Comment C28: Table IIB-1 (of the comments) provides a comparison of calculated effluent
limits based on the WQS versus the 2006 AWQC. Using the 2006 dieldrin AWQC (0.000054
(j,g/L) currently considered by EPA to be protective of a fish consumption pathway, combined
with EPA's calculated ADC of 294 for consumption of fish containing carcinogens, the
protective concentration of dieldrin in SIWWTP effluent is calculated to be 0.016 [j,g/L
(0.000054 x 294 = 0.016 (^g/L). This updated effluent limit is only slightly higher than the
current Permit limit of 0.012 (J,g/L, and it is still exceeded by the running annual average
concentration. However, CCH has strong evidence showing that reported exceedances for
dieldrin are false positives resulting from the analytical method required by EPA in the Permit.

Response: The value cited in this comment, 0.000054 (^g/L, is not Hawaii's water quality
standard. Therefore, CCH's review of the monitoring data against this value is not relevant.

Comment C29: The compliance limits for pesticides, as outlined in HAR 1 l-54-4(b)(3), are
inherently very low because of the conservative assumptions used for their derivation. These
include assumptions about the extent and rate of bioaccumulation in fish, assumed fish
consumption rates, assumed daily frequency of fish ingestion, and a target of one in one million
excess cancer risk. Given these conservative assumptions, the WQS for several pesticides are at
levels below or very near the levels of detection using the standard analytical techniques
specified in the EPA-approved Section 301(h) monitoring program (EPA Method 608) that uses
gas chromatography with an electron capture detector (GC/ECD). The matrix characteristics of
compounds typically found in municipal wastewater (that is, co-occurrence of many interfering
constituents such as fats and proteins) make it difficult for standard analytical methods to provide
reliable results for pesticides such as chlordane, dieldrin, and DDT.

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To overcome these deficiencies, a GC/MS method (EPA Method SW8270SIM) was used to
provide more sensitivity and, more importantly, better selectivity of analytical response for the
individual parameters that are of concern to EPA

To test the benefit of using GC/MS versus the conventional GC/ECD, split samples were
analyzed using each method. Twenty split samples were analyzed from the SIWWTP from April
24 to December 16, 2007. The CH2M HILL Applied Sciences Laboratory (an EPA certified
laboratory) analyzed the GC/MS samples, and CCH analyzed the GC/ECD samples using its
normal compliance testing analytical protocol. The laboratory analytical reports for the GC/MS,
and associated QA/QC documentation (CH2M HILL Applied Sciences Laboratory, 2007), are
provided in the Appendix.

Figure IIB-3 (of the comments) shows the comparison of the GC/MS and GC/ECD results for
dieldrin. As shown on the figure, dieldrin was not detected using GC/MS at a detection limit of
0.002 (J,g/L, well below the effluent limit of 0.012 [j,g/L (or the updated effluent limit of 0.016
[j,g/L, based on the 2006 AWQC). However, the corresponding GC/ECD results showed dieldrin
detections over 30-fold higher, up to 0.067 (J,g/L, and well above the effluent limit of 0.012 (J,g/L.

These results for dieldrin are supported by corresponding findings for DDT (although it is
recognized that DDT is not a basis for denial in the 2007 TD). Results for DDT (Figure IIB-4)
indicated that it was not detected using GC/MS in any of the 14 analyzed samples at a detection
limit of 0.002 (J,g/L, although DDT was reported as detectable by GC/ECD at levels more than an
order of magnitude higher (up to 0.022 |ig/L),

These results prove that dieldrin is not present at detectable levels (less than 0.002 (J,g/L) in the
SIWWTP effluent and that reported dieldrin exceedances are false positives. During this
comparative testing series, dieldrin and DDT appeared to be absent from the effluent using
GC/MS. CCH believes that the lack of correspondence of results between GC/MS and GC/ECD
supports replacing GC/ECD with GC/MS as the most appropriate analytical protocol for
pesticides in the next NPDES permit.

It is important to note that these results do not question the quality of laboratory performance
conducted by CCH during its compliance monitoring; rather, they reflect only the limitations
inherent within the conventional EPA-required analytical method relative to the very low
compliance limits set for the SIWWTP

Response: States have flexibility when adopting criteria for toxic pollutants. This flexibility
allows states to incorporate conservative assumptions when setting criteria. For example, when
developing its numeric standards for toxic pollutants in 1989, the State of Hawaii applied a fish
consumption value of 19.9 grams per day. This rate reflected the higher consumption rate of fish
by Hawaii residents. At that time, EPA assumed a nationwide average daily consumption rate of
6.5 grams per day. However, in 2000, EPA increased this national average daily consumption
rate to 17.5 grams per day but at the same time recognized much higher consumption values for
various populations. Regardless of the basis for Hawaii's adoption of State criteria for
pesticides, the numeric criteria adopted by the State are the criteria that must be met. See

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response to comment C23 for discussion about the formal process for amending State water
quality standards.

In conducting its supplemental analysis of pesticides in Sand Island effluent, CCH used an
inappropriate test method. As described below, Method 608 and Method 625 are the appropriate
methods for the detection of pesticides in wastewater. Use of an alternate test method must
follow the steps listed in 40 CFR 136.5, which CCH has not done. Following the requirements
of this regulation would ensure that correct and clearly defined laboratory procedures are applied
and resulting data are presented in a clear manner for review by EPA.

The Sand Island permit requires the use of EPA Method 608 to detect concentrations of the
pesticides chlordane and dieldrin in the Honouliuli final effluent. This is an EPA-approved test
method procedure listed in Table ID of 40 CFR 136.3 for detecting pesticides in wastewater and
is the method listed in EPA's Amended Section 301(h) Technical Support Document (ATSD).
EPA Method 608 (40 CFR 136, App. A, Method 608) includes clean-up procedures to decrease
detection interference from chemicals not targeted for analysis.

The ATSD also lists EPA Method 625 (40 CFR 136, App. A, Method 625) as an approved
method for detecting chlordane and dieldrin. EPA Method 608 detects pesticides by use of the
gas chromatographic (GC) method with electron capture detection (GC/ECD), and EPA Method
625 detects pesticides with the use of a gas chromatographic/mass spectrometry (GC/MS)
method. In its comments on the tentative decision, CCH included a technical memorandum from
CH2M HILL Applied Sciences Laboratory discussing the differences between Method 608 and
625. In this technical memorandum, the writer states the following: "The major drawback of
Method 625, and GC/MS detection, is that the typical reporting limits are much higher than the
typical reporting limits obtained from GC/ECD analysis of organochlorine pesticides."
Organochlorine pesticides include chlordane and dieldrin. This memorandum goes on to
describe improvements made to Method 625 to decrease the reporting limit. The memorandum
also includes the following statement: ".. .the modified Method 625 meets the acceptance
criteria for Method 625 and has greater sensitivity and specificity than GC/ECD for the
organochlorine pesticides of concern in the effluent matrix under investigation."

Despite the discussion presented in CCH's technical memorandum on the two EPA-approved
methods used to determine pesticide concentrations, CCH disregarded Method 625 and instead
presented data using a third detection method for chlordane and dieldrin. In its comments on the
tentative decision, CCH provided a comparison of laboratory results determining concentrations
of the organochlorine pesticides chlordane, dieldrin, and DDT in the Honouliuli WWTP and
Sand Island WWTP final effluent using Method 608 and Method SW8270SIM. The SW- prefix
added to Method 8270 indicates that it is published by EPA's Office of Solid Waste. The -SIM
ending added to Method 8270 indicates the use of selected ion monitoring (SIM).

Although both methods utilize GC/MS, Method 8270 is not entirely equivalent to Method 625.
For example, sample preparation and extraction prior to injection into the GC may be different.
Method 8270 cites 5 different preparation methods that may be used. Method 625 utilizes serial

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separatory funnel extractions with methylene chloride at a pH greater than 11 and again at a pH
less than 2.

SW8270SIM is not an EPA-approved method for determining concentrations of pesticides in
wastewater, nor is Method 8270 listed in the ATSD as a method suitable for the detection of
pesticide concentrations in 301(h) monitoring programs. Furthermore, the procedure for Method
8270 states the following: "In most cases, this method is not appropriate for the quantification of
multicomponent analytes, e.g., Aroclors, Toxaphene, Chlordane, etc., because of limited
sensitivity for those analytes. When these analytes have been identified by another technique,
Method 8270 may be appropriate for confirmation of the identification of these analytes when
concentration in the extract permits." The procedure for Method 8270 also includes the
following statement: "The use of SIM is acceptable for applications requiring quantitation limits
below the normal range of electron impact mass spectrometry. However, SIM may provide a
lesser degree of confidence in the compound identification, since less mass spectral information
is available." Therefore, Method 8270 is not an appropriate alternative to Method 608 for the
analysis of pesticides, especially chlordane, for wastewater monitoring in the NPDES program.

In addition to the use of a method that was inappropriate, the supplemental analyses conducted
by CCH were deficient or misleading for several reasons.

CCH did not provide sufficient information for EPA to confirm that the tests they conducted
using Method 608 and Method SW8270SIM were truly based on split samples. In its comments
on the tentative decision, CCH asserted that split samples were analyzed using each method (608
and SW8270SIM), where CH2M HILL performed the analysis via Method SW8270SIM, and
CCH performed the analysis via Method 608. However, only the CH2M HILL laboratory
reports were provided, and the dates of the samples do not correlate with the CCH's monitoring
data. Thus, if split samples were analyzed by both methods, EPA was not provided with the
CCH (Method 608) data for those samples. Furthermore, the technical memorandum presented in
an appendix to CCH's comments suggests that analysis of the Sand Island effluent was
conducted using Method 625, but these data were not presented in CCH's comments on the Sand
Island tentative decision.

CCH did not report the appropriate detection limits for its supplemental analyses using method
608 or copies of the laboratory reports containing the detection limits, as it did for Method
SW8270SIM. The minimum level (ML) is the level at which the entire analytical system gives a
recognizable reading and acceptable calibration points. The method detection limit (MDL) is the
minimum concentration of a substance that can be measured and reported with 99-percent
confidence. Quantitation in the range between the MDL and the ML is not as precise or accurate
as it is in the range above the ML. In their comments, CCH did not provide the data sheets from
the CCH laboratory analysis conducted from April 24, 2007 through December 16, 2007 using
Method 608 to determine chlordane and dieldrin concentrations. Without these data, EPA
cannot fully assess the data presented in CCH's comments.

Ten of the twenty samples analyzed by CH2M HILL were not equivalent to the samples
collected as required by the Sand Island permit. The ten samples collected by CCH from April

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24, 2007 through September 4, 2007 were grab samples (i.e. a sample from one point in time).
The Sand Island permit requires composite samples for the analysis of pesticides. Collection of a
composite sample over a 24-hour period ensures that fluctuating levels of pollutants are captured.
A grab sample only captures the pollutants discharged at the moment the sample is collected.

In its comments on the tentative decision, CCH describes CH2MHill's laboratory as EPA-
certified. However, EPA only certifies laboratories for drinking water analysis. EPA does not
certify laboratories for the analysis of pesticides in wastewater. Consequently, this sentence
about the Applied Sciences Lab certification is misleading.

Based on CCH's use of an unapproved and inappropriate test method and the additional
deficiencies described above, EPA disagrees with CCH's conclusion that there is a considerable
likelihood that those constituents noted by EPA in the tentative decision as exceeding WQS are
false positives. Rather, EPA concludes that the additional laboratory data submitted by CCH in
its comments do not provide sufficient reason to disregard the existing laboratory data reviewed
by EPA in the tentative decision.

Although the supplemental pesticide analysis conducted by CCH using Method SW8270SIM are
of questionable reliability, EPA has now reviewed data on the concentration of pesticides in the
Sand Island effluent using Method 608 that were not available at the time of the tentative
decision and reassessed its conclusions as to whether the proposed discharge would meet water
quality standards for pesticides. In the tentative decision, EPA concluded that the reported
concentrations of chlordane and dieldrin exceeded the water quality criteria protective of human
consumption of fish in all 105 months from December 1998 through August 2007. Since the last
annual average reviewed for the tentative decision (for the one-year period ending with August
2007), CCH conducted monthly monitoring of chlordane and dieldrin concentrations in the
effluent for the 13 months from September 2007 through September 2008. Annual averages
were calculated from these monthly samples.

Chlordane

Of the 105 reported annual averages for chlordane reviewed in the tentative decision, all
exceeded the water quality criterion of 0.000016 |ig/L, after accounting for average initial
dilution. These concentrations ranged from 0.000066 |ig/L to 0.0027 |ig/L.

In the 13 months from September 2007 through September 2008, all 13 annual average values
for chlordane exceeded the water quality criterion of 0.000016 |ig/L, after accounting for average
initial dilution. Annual average concentrations ranged from 0.0002 |ig/L to 0.00028 |ig/L.

In total, all of the 118 annual average concentrations for chlordane using Method 608 exceed the
water quality criterion, when accounting for average initial dilution. EPA is, therefore, retaining
its conclusion that the proposed discharge would not attain the water quality criterion for
chlordane protective of human consumption of fish.

Dieldrin

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Of the 105 reported annual averages for dieldrin reviewed in the tentative decision, all exceeded
the water quality criterion of 0.000025 |ig/L, after accounting for average initial dilution. These
concentrations ranged from 0.000044 |ig/L to 0.00016 |ig/L.

In the 13 months from September 2007 through September 2008, all 13 annual average values
for dieldrin exceeded the water quality criterion of 0.000025 |ig/L, after accounting for average
initial dilution. Annual average concentrations ranged from 0.000078 |ig/L to 0.0001 |ig/L.

In total, all of the 118 annual average concentrations for dieldrin using Method 608 exceed the
water quality criterion, when accounting for average initial dilution. EPA is, therefore, retaining
its conclusion that the proposed discharge would not attain the water quality criterion for dieldrin
protective of human consumption of fish.

DDT

As acknowledged by the commenter, DDT was not a basis for denial in the 2007 Sand Island
tentative decision. This comment does not request a reanalysis of EPA's conclusions regarding
DDT.

Comment C30: A comparison of the effluent priority pollutant data with chronic WQS
protective of marine aquatic organisms indicates that priority pollutants have not been detected at
levels exceeding these criteria over the entire evaluation period of 2000-2007. These results
provide a strong line of evidence that the effluent is not interfering with the protection and
propagation of a BIP of fish, shellfish, and wildlife, supporting CCH's conclusions with respect
to the WET test evaluation (the CCH WET test evaluation is provided in Section IIB.II.D) and
the many years of marine biological community monitoring around the outfall.

Using the 2006 chlordane AWQC that EPA considers to be protective of a fish consumption
pathway, the annual average concentration of chlordane in the SIWWTP effluent has never
exceeded the protective level over the entire evaluation period of 2000-2007. Additionally, the
analytical methods for pesticides specified by EPA in the Permit led to the reporting of probable
false positives for dieldrin. This is entirely consistent with years of evidence from the marine
monitoring program indicating that no unacceptable levels of the pesticides of concern are
bioaccumulating in the target species or accumulating in the sediment around the outfall.

For these reasons, EPA has reached an inappropriate conclusion concerning the potential for
adverse effects of pesticides on human health and maintenance of a BIP beyond the ZID
boundary. Therefore, alleged pesticide exceedances do not provide a justification for denial of
CCH's waiver application and, in light of this information, EPA should reconsider the negative
2007 TD.

Response: The results of WET testing and ammonia nitrogen monitoring (not the chlordane and
dieldrin exceedances) are the primary bases for EPA's conclusion that the applicant has failed to

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demonstrate that a modified discharge would not interfere with the attainment or maintenance of
that water quality which assures protection of a balanced, indigenous population of shellfish,
fish, and wildlife. Please see also response to comment C46.

EPA's evaluation of effluent data has found that the Sand Island discharge contains
concentrations of chlordane and dieldrin that exceed water quality standards that were
established to protect human health from ingestion of carcinogens through fish consumption.
Conclusions made regarding EPA Water Quality Criteria cannot be used to replace the
conclusions based on comparisons to Hawaii's water quality standards. EPA does not agree that
the data provided by CCH in their application contains false positives for dieldrin. See response
to comment C29 for a response to comments on the analytical methods used for chlordane and
dieldrin. The cited findings regarding bioaccumulation and sediment accumulation do not
change the fact that water quality standards have been exceeded.

Whole Effluent Toxicity

Comment C31: EPA's conclusions are based on WET tests conducted on T. gratilla, an
indigenous Hawaiian sea urchin that is not on the list of EPA-approved species to be used for
bioassay testing in wastewater effluents (Federal Register Volume 72 Number 47, 11200-11249,
March 12, 2007). The EPA protocol for this species is still in draft form and has not been
finalized.

EPA clearly recognizes that, until it gains formal status as an approved WET species, T. gratilla
should not be used for regulatory compliance purposes at SIWTTP. This was evident during the
process of EPA's decision for final approval of the Section 301(h) waiver for SIWWTP in 1998,
when EPA addressed CCH comments on the Permit (EPA Region IX and Hawaii State
Department of Health, September 30, 1998). As part of these comments, CCH submitted the
following as Comment Number 15 (page 19):

"The Permittee recommended that the EPA and DOH continue to conduct whole
effluent toxicity (WET) testing using the test species Ceriodaphnia dubia and
Trypneustes gratilla; however, because the recommended protocol is still draft,
compliance monitoring should not be required using the test species, T. gratilla,
until the protocol is refined through inter-laboratory testing, etc. "

EPA's response to this comment including the following:

"The EPA and DOH concur with the Permittee, that at this time the Permittee
should continue testing using T. gratilla for monitoring purposes only. "

(Emphasis added.)

To CCH's knowledge, EPA has not documented that inter-laboratory variability testing has been
completed. Therefore, the test retains the same status it had in 1998 when the Permit wording
was changed. Based on HAR 1 l-54-4(b)(4) and the Permit, the T. gratilla WET test results are

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not to be used to determine compliance with WQS. EPA's contention to the contrary is
unfounded.

Response: At least two issues are raised in this comment. Portions of this comment pertain to
the issue of whether or not the Tripneustes gratilla method should be used prior to listing at 40
CFR part 136, and this response focuses on this issue. Portions of this comment pertain to use of
T. gratilla for compliance purposes. The use of T. gratilla for compliance purposes is addressed
in response to comment C32.

The commenter is correct that the T. gratilla method has not been listed in 40 CFR part 136;
however, this does not mean that the results of monitoring conducted using the method are
inappropriate for use in assessing attainment of water quality standards.

The use of T. gratilla is consistent with EPA policy and Hawaii's water quality standards. Since
first promulgating acute and chronic whole effluent toxicity (WET) methods in 1995, EPA has
continued to recommend that NPDES permitting authorities implement chronic WET tests in
permits for facilities that discharge into the Pacific Ocean based on test methods and species in
Short-Term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to
West Coast Marine and Estuarine Organisms (USEPA, 1995; "West Coast manual") and/or
based on other alternative guidance as directed by state permitting authorities. Consistent with
this recommendation, HAR 1 l-54-4(b)(2)(B) specifies that all state waters shall also be free from
chronic toxicity as measured using the toxicity tests listed in HAR 11-54-10, or other methods
specified by the director. This practice corresponds with EPA's 2002 Final WET Rule (USEPA,
2002b). In the preamble to this rulemaking, EPA states:

Because test procedures for measuring toxicity to estuarine and marine organisms
of the Pacific Ocean are not listed at 40 CFR part 136, permit writers may include
(under 40 CFR 122.41(j)(4) and 122.44(i)(l)(iv)) requirements for the use of test
procedures that are not approved at part 136, such as the Holmesimysis costata
Acute Test and other West Coast WET methods (USEPA, 1995b) on a permit-by-
permit basis.

Regulations for publicly owned treatment works at 40 CFR 122.21 (j)(5)(viii) clarify that West
Coast facilities, including those in Hawaii, are exempted from 40 CFR part 136 chronic test
methods and species and must use alternative guidance as directed by the permitting authority.

EPA would also note that since 1998 the T. gratilla method has become the standard method for
use in permits issued by HDOH for discharges to marine waters, including CCH permits such as
for its Kailua and Waianae facilities, and is being implemented for compliance determinations in
permits.

Comment C32: Accordingly, the Permit at Part B. 1 .b. explicitly states that the results of the C.
dubia WET test were to be used for regulatory compliance, but the results of the T. gratilla test

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were not to be used for regulatory compliance, and were not subject to discharge limitations of
the Permit for purposes of HAR 1 l-54-4(b)(4):

"For this discharge, chronic toxicity for Ceriodaphnia dubia is defined by an
exceedance of a chronic toxicity discharge limitation specified in Part A. 1 of this
permit.

"The chronic toxicity discharge limitation in Part A.l of this permit does not
apply to monitoring results for toxicity tests using Trypneustes gratilla. "

(Emphasis added.)

EPA concludes in the 2007 TD that there is unacceptable toxicity in the SIWWTP effluent based
solely on evaluation of T. gratilla WET test data, in spite of the fact that the Permit required
species (C. dubia) for such evaluation has never exhibited toxicity responses. This ignores
EPA's express statement in the Permit that C. dubia only shall be used for regulatory compliance
purposes, and T. gratilla shall not. As such, it is an arbitrary and unjustified basis for EPA's
tentative denial of CCH's waiver application and should be reconsidered.

As EPA agreed, EPA must base its evaluation of toxicity on C. dubia, not T. gratilla. EPA's
failure to rely on C. dubia data, which is the only approved means of demonstrating compliance
for toxicity with the WQS, is arbitrary and again demonstrates EPA's conclusion-driven analysis.

Response: EPA used WET test results from the Sand Island WWTP as part of its assessment of
whether or not the proposed discharge would meet the requirements of section 301(h), not to
determine compliance with the permit. Specifically, EPA used the test results to assess whether
or not the proposed Sand Island WWTP effluent would meet water quality standards. For this
reason, results from WET tests of Sand Island effluent were not assessed against the toxicity
limit listed in the permit, which is 94 TUC. Data obtained through the monitoring requirements
contained within the permit were instead assessed against the Hawaii water quality standard for
toxicity, as described on page 51 of EPA's Sand Island TDD. Consequently, EPA assessed Sand
Island WET test results against a TUC of 103, which is derived from the initial dilution calculated
by EPA during review of the 301(h) application. This assessment is in accordance with section
HAR 1 l-54-4(b)(4)(A) of Hawaii's water quality standards. Likewise, whole effluent toxicity
data collected by the applicant using C. dubia as a test organism were assessed in the same
manner in this review of 301(h) criteria and not used for permit compliance purposes.

The Sand Island permit states that the chronic toxicity discharge limitation does not apply to
monitoring results for toxicity tests using T. gratilla. However, the next sentence in the permit
states that chronic toxicity for T. gratilla is defined by an exceedance of an average daily chronic
toxicity value of 94 TUC. In its comments on the 301(h) tentative decision, the applicant
supplied the first sentence but not the second sentence of the paragraph on page 13 of the permit:

The chronic toxicity discharge limitation in Part A.l of this permit does not apply
to monitoring results for toxicity tests using Trypneustes gratilla. Chronic

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toxicity for Trypneustes gratilla is defined by an exceedance of an average
daily chronic toxicity discharge value of 94 TUC.

The second sentence implies that the data collected according to the permit monitoring
requirements are valid data that can be assessed for purposes other than permit compliance. For
example, the permit also requires accelerated testing when results with T. gratilla exceed 94 TUC,
and if accelerated testing indicates additional exceedances, the permitting authority may direct
CCH to conduct a toxicity reduction evaluation.

Although EPA and HDOH accommodated CCH's request to not use the T. gratilla test for
compliance purposes in the 1998 Sand Island permit, EPA notes that subsequently, HDOH has
routinely issued permits requiring WET compliance monitoring using T. gratilla, including at
CCH facilities such as the Kailua and Waianae WWTPs.

Comment C33: EPA's own WET test guidance suggests avoiding the development of WET
tests for indigenous species.

EPA's TSD (EPA Office of Water, March 1991) advises:

"Sometimes, regulatory agencies require testing on representative resident
species under the assumption that such tests are needed to assess impact to local
biota. EPA considers it unnecessary to test resident species since standard test
species have been shown to represent the sensitive range of all ecosystems
analyzed. Resident species toxicity testing is strongly discouraged unless it is
required by State statute or some other legally binding factor, or it has been
determined that a unique resident species would be far more protective of the
receiving water than the EPA surrogate species. "

Response: EPA's 2002 Final WET Rule (USEPA, 2002b), which establishes standard test
methods and species for discharges to marine waters of the East Coast, specifically allows the
use of test methods on a permit-by-permit basis for marine and estuarine discharges to the
Pacific Ocean. The primary reason for this provision was to allow species indigenous to the
Pacific Ocean, rather than the Atlantic Ocean, to be used for toxicity testing for discharges to
estuarine and marine waters of the Pacific Ocean.

HAR 1 l-54-4(b)(2)(B) specifies that all state waters shall also be free from chronic toxicity as
measured using the toxicity tests listed in HAR 11-54-10, or other methods specified by the
director. Accordingly, HDOH routinely issues NPDES permits that require the use of toxicity
tests with the T. gratilla test method for discharges to marine waters. For estuarine and marine
waters of Hawaii and other Pacific islands, EPA supports the use of T. gratilla.

Furthermore, the State of Hawaii has strict regulations regarding the import of non-native
species. EPA's document Short-term Methods for Estimating the Chronic Toxicity for Effluents
and Receiving Waters to Marine and Estuarine Organisms (USEPA, 2002a), while discouraging

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use of indigenous species in general, allows their use under certain circumstances. Section 6.1.4
(USEPA, 2002a) states the following:

Some states have developed culturing and testing methods for indigenous species
that may be as sensitive or more sensitive, than the species recommended in
Subsection 6.1.3. However, USEPA allows the use of indigenous species only
where state regulations require their use or prohibit importation of the species in
Subsection 6.1.3.

Hawaii's strict regulation of non-native species is one of the reasons HDOH began development
of a toxicity test method using a test organism that is already present in Hawaii. EPA supports
this method and considers it consistent with the EPA guidance.

Comment C34: The SIWWTP results that are reported in terms of statistical hypothesis testing
include a large number of values that create a perception of unacceptable toxicity when that
situation does not exist. This perception results from use of a statistical evaluation method that
does not effectively consider the biological relevance of the results. Because of the biological
variability inherent in the T. gratilla test, the hypothesis testing approach generally leads to a
much more conservative estimation of the toxic threshold, and is much more likely to result in
false positives (that is, inferring biological toxicity when none is present).

The sea urchin results do not consider biological relevance.

A critical deficiency in the use of hypothesis testing for defining "toxicity," using an endpoint
such as fertilization success in T. gratilla, is that simple statistical differences do not always
represent biological effects. As commonly happens with this urchin species, when the
fertilization success in the control group replicates varies by only small percentages, a
statistically significant difference between the control and a test group could be interpreted as a
"toxic" response, without respect to biological significance (and, accordingly, resulting in false
positives).

In Understanding and Accounting for Method Variability in Whole Effluent Toxicity Applications
under the National Pollutant Discharge Elimination System (EPA, June 2000), EPA specifically
addresses the issue of biological relevance by stating (on p. Appendix D-8) that WET tests with:

"[M]inimal variability in all treatments of a test may lead to such high statistical
power that detected differences may not be biologically significant. Such tests
should be interpreted with caution. "

In Short-Term Methods For Estimating the Chronic Toxicity of Effluents and Receiving Water to
Marine andEstuarine Organisms (EPA, October 2002), page 41, Section 9, EPA states that for
continuous (that is, nonquantal) biological effects

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" ...estimates from a statistical analysis can only be used in conjunction with an
assessment from a biological standpoint of what magnitude of adverse effect
constitutes a "safe " concentration. In this instance, a "safe " concentration is not
necessarily a truly "no-effect" concentration, but rather a concentration at which
the effects are judged to be of no biological significance. "

These inherent conditions (very tight control variances relative to test group variances) have
consistently resulted in statistically significant reductions in fertilization in treatment groups that
have very high fertilization rates. Such a situation results in designation of "toxicity" that is
artifactual and does not represent a true measure of biological relevance.

Of the remaining 121 tests with a reported LOEC (determined using statistical significance only),
57.0 percent (69 of 121) were identified where the fertilization rate at the indentified LOEC was
greater than or equal to 70 percent fertilization. Of the complete data set, the highest fertilization
rate seen at an identified LOEC was 99 percent. These results clearly indicate that more than
half of the reported LOECs are not biologically relevant, and they create a perception of
unacceptable toxicity when that situation does not exist. That is, using the statistical significance
criterion alone, the T. gratilla test, which has not yet received EPA approval, is inherently
susceptible to type I errors (false positives).

The problem stems largely from the very low variability in the control test fertilization
responses. Because of this low variability, a very small difference between test dilutions and
controls may be found to be statistically significant and interpreted as "toxic," when, instead, the
results may lie within the range of the acceptable biological variability that is considered
acceptable for the control replicates.

Response: This comment appears to be combining two issues related to biological relevance.
The main focus of the comment appears to be an assertion that hypothesis testing is not a suitable
statistical method for interpreting the biological results of WET testing. In addition, the
comment appears to be asserting that WET tests generally (which are based on statistical
methods) do not have ecological relevance. EPA disagrees with both assertions.

Ecological Relevance

EPA disagrees with the assertion that WET tests do not have ecological or biological relevance.
In the TSD (USEPA, 1991), EPA discussed the results of a number of studies that correlated
effluent toxicity measurements to receiving water toxicity. The studies included discharges to
both freshwater and saltwater. The TSD states:

"Together, these studies comprise a large data base specifically collected to
determine the validity of toxicity tests to predict receiving water community
impact. In order to address the correlation of effluent and ambient toxicity tests to
receiving water impacts, EPA evaluated the results of the studies discussed above.
The results, when linked together, clearly show that if toxicity is present after
considering dilution, impact will also be present." [TSD, p.7]

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For the studies specific to saltwater, the TSD concludes as follows:

"The results of the studies at these four sites indicate a 94 percent accuracy when
using the marine and estuarine toxicity test to predict receiving water impacts. In
only 6 percent of the cases did effluent toxicity tests predict receiving water
toxicity that was not present (false positive)." [TSD, p. 9]

False Positive Results in WET Test

In statistical terms, a conclusion that an effluent is toxic when it is not is known as a false
positive result or a Type I error. Chapter 5 of EPA's document Understanding and Accounting
for Method Variability in Whole Effluent Toxicity Applications Under the National Pollutant
Discharge Elimination System Program (USEPA, 2000), known as the variability guidance
document, specifically addresses false positives. This document defines false positives as
follows:

"A Type I error (i.e., "false positive") results in the false conclusion that an
effluent is toxic when it is not toxic. A Type II error (i.e., "false negative") results
in the false conclusion that an effluent is not toxic when it actually is toxic. Power
(1 - beta) is the probability of correctly detecting a true toxic effect (i.e., declaring
an effluent toxic when it is in fact toxic).

WET tests, when properly conducted, are designed to minimize the likelihood of false positive
results. As described below, important design parameters include the number of replicates and
establishing statistical controls on variability. EPA has addressed concerns related to false
positives specifically for hypothesis testing in the variability guidance document (USEPA, 2000)
as follows:

"The hypothesis test procedures prescribed in EPA's WET methods provide
adequate protection against incorrectly concluding that an effluent is toxic when it
is not. The expected maximum rate of such errors is the alpha level used in the
hypothesis test. The hypothesis test procedure is designed to provide an error rate
no greater than alpha when the default assumptions are met. The statistical flow
chart provided with each EPA WET method identifies cases when default
assumptions are not satisfied and, therefore, when data transformations or
alternative statistical methods (e.g., a nonparametric test) should be used."

EPA evaluated and assessed the false positive rate in its study of interlaboratory variability of
WET tests (USEPA, 2001). This study conclusively showed that measured false positive rates
were below the theoretical rate of 5% estimated for the methods.

EPA disagrees that hypothesis testing is an unacceptable method for interpreting the biological
results of WET tests. Proper test design, including controls and replication, provides adequate
protection from false positives, whether the results of the test are interpreted using hypothesis

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37

testing (as required by Hawaii water quality standards) or point estimation (the other statistical
method commonly used to interpret WET results). EPA strongly recommends that WET testing
laboratories carefully review the statistical procedures used to produce WET test results and
other factors (i.e., biological and statistical quality assurance), and verify that test conditions and
test acceptability criteria are achieved. If a test is properly conducted and correctly interpreted,
either through hypothesis testing or point estimation, the rate of false positives should remain
very low.

In its Final WET Rule (USEPA, 2002b), EPA continues to use a nominal error rate of 0.05 for its
WET test methods. Reductions in the nominal error rate (reducing false positives) would
improve confidence in test results that identify toxicity, but reduce confidence in results that do
not identify toxicity, because of the relationship between Type I and Type II errors. This would
reduce the power of the test and the chance of identifying toxic discharges, thereby reducing
environmental protection. In the Final WET Rule, EPA concluded that there is no scientific
justification for recommending reductions in nominal error rates below 0.05 to reduce false
positives in order to improve permit compliance.

Number of Replicates

Hypothesis tests can be designed to increase the power to detect differences by decreasing
variability. One important design parameter in this regard is the number of replicates tested.
The Sand Island WWTP NPDES permit requires a comparison between a dilution water control
and different treatments that bracket the instream waste concentration. The different treatments
are different concentrations (i.e., different dilutions) of the effluent used to determine which
concentrations produce adverse effects on the test species. EPA toxicity test methods
recommend a minimum number of replicates per test concentration, but the testing laboratory
may increase the number of replicates. The City and County of Honolulu Water Quality
Laboratory incorporates one and a half to two times the recommended replicate size by using 6-8
replicates per treatment to increase the power of testing and decrease variability.

Statistical Controls on Variability

The treatment that contains the highest percent of effluent without causing a statistically
significant adverse effect is the no observed effect concentration, or NOEC. As discussed in the
TDD, page 51, calculation of the NOEC is a critical part of WET testing analysis for wastewater
treatment plants in Hawaii, as Hawaii's water quality standard related to submerged outfalls is
written in terms of the NOEC.

The percent minimum significant difference (PMSD) is a measure of test sensitivity that
establishes the minimum difference required between a control and a treatment in order for that
difference to be considered statistically significant. To increase test precision, upper and lower
bounds on PMSD can be applied when reporting the NOEC. Upper PMSD bounds are intended
to control within-test variability, because high variability can mask toxicity. EPA recommends
lower PMSD bounds to avoid penalizing permittees which use laboratories that achieve
unusually high precision in their toxicity tests. When variability is very low, a small difference

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38

between a treatment and the control could be found to be statistically significant. Thus, a
laboratory that achieves a very high precision, and hence low variability, might find that an
effluent sample is toxic when another laboratory would not.

EPA recommends that laboratories track PMSD values over time so that the testing laboratory
may assess the normal operating ranges of this parameter in the laboratory and identify periods
of decreased consistency. This information is useful in quickly identifying and correcting
potential problems and sources of variability. The tracking of PMSD values also is useful for
evaluating whether a laboratory needs to increase test replication to consistently achieve the
variability criteria.

Minimal variability in all treatments of a test may lead to such high statistical power that
detected differences may not be biologically significant, but this can be accounted for by setting
a low PMSD criterion for the method. The CCH Water Quality Laboratory has established a
lower PMSD bound of 3% for the T. gratilla fertilization toxicity tests it conducts, as described
in CCH's Standard Operating Procedure #860, Revision #1 (City and County of Honolulu,
2003). Thus, to the extent CCH may have had concerns about the statistical significance of the T.
gratilla WET tests, it has addressed those through its laboratory setting a low PMSD bound.

If the relative difference between the means for the control and the instream waste concentration
treatment is statistically significant, but smaller than the lower bound PMSD, the test is
considered acceptable, but determination of the NOEC is more complex. Section 6.4.2 of EPA's
variability guidance document (USEPA, 2000), describes the procedures for determining the
NOEC in this situation.

The current Sand Island permit does not require analysis of PMSD when interpreting results of
WET tests; however, that can be done retroactively. In response to this comment, EPA has re-
reviewed the data on WET and taken into consideration information on PMSD, using the lower
bound of 3% described in CCH's 2003 Standard Operating Procedure. Although PMSD data are
available for tests conducted since April 1999, EPA limited its review of PMSD data to tests
conducted after April 23, 2003, the date of CCH's standard operating procedure #860, Revision
#1.

In the TDD, EPA focused its review of WET tests using T. gratilla on the period from January
1999 through May 2007. During some months, CCH conducted multiple WET tests. Table 6 of
the TDD lists the highest of the individual values for each month (i.e., the daily maximum). As
listed in Table 6 of the TDD, of the 49 daily maximum values reported by CCH from May 2003
through May 2007, 27 exceeded the target value of 103 TUC (based on the water quality standard
and the minimum initial dilution).

EPA reviewed PMSD data from the detailed data sheets that were submitted by CCH along with
its DMRs, for tests conducted from May 2, 2003 through May 22, 2007. The toxicity and PMSD
for the daily maximum for each month are listed in the table below (Table 6b in the final
decision document). Of the 27 daily maximum values that exceeded the target value during this
period, three tests had a PMSD below the lower bound of 3%.

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39

Toxicity and PMSD values for Daily Maximum WET tests for Sand Island WWTP from
May 2003 through May 2007. Highlighted tests had a PMSD below the lower bound of 3%
and exceeded 103 TUC.

Month

TUe

PMSD

Recalculated TUC

May 2003

357.1

6.30

na

June 2003

> 357.1

3.29

na

July 2003

357.1

11.47

na

August 2003

357.1

8.20

na

September 2003

>357.1

3.64

na

October 2003

357.1

11.29

na

November 2003

181.8

1.12

181.8

December 2003

90.9

4.23

na

January 2004

181.8

4.62

na

February 2004

45.5

3.23

na

March 2004

22.7

7.05

na

April 2004

22.7

3.46

na

May 2004

45.5

1.73

na

June 2004

22.7

0.99

na

July 2004

90.9

0.85

na

August 2004

90.9

1.46

na

September 2004

45.5

2.41

na

October 2004

45.5

2.68

na

November 2004

90.9

2.07

na

December 2004

90.9

3.66

na

January 2005

45.5

1.34

na

February 2005

45.5

1.03

na

March 2005

181.8

10.79

na

April 2005

90.9

1.19

na

May 2005

181.8

7.64

na

June 2005

357.1

0.19

181.8

July 2005

357.1

3.29

na

August 2005

181.8

1.14

181.8

September 2005

> 357.1

9.29

na

October 2005

90.9

8.65

na

November 2005

45.5

6.30

na

December 2005

181.8

7.44

na

January 2006

181.8

9.97

na

February 2006

90.9

3.15

na

March 2006

45.5

2.09

na

April 2006

22.7

2.16

na

May 2006

45.5

7.51

na

June 2006

181.8

5.19

na

July 2006

90.9

11.17

na

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August 2006

> 357.1

5.59

na

September 2006

357.1

3.99

na

October 2006

357.1

8.85

na

November 2006

357.1

6.83

na

December 2006

357.1

6.04

na

January 2007

357.1

4.17

na

February 2007

>357.1

4.66

na

March 2007

357.1

3.89

na

April 2007

357.1

3.76

na

May 2007

357.1

10.47

na

Using section 6.4.2 of the variability document (USEPA, 2000), EPA recalculated NOECs for
the three daily maximum tests that had PMSDs below 3% and exceeded 103 TUC. All three
recalculated values (for November 2003, June 2005, and August 2005 tests) still exceed the
water quality standard of 103 TUC when recalculated.

In summary, for the period from May 2003 through May 2007, EPA still finds that 27 out of 49
WET tests exceeded the water quality standard. This remains true when the NOEC values are
recalculated according to the procedures in the variability document for those tests where the
PMSD was less than 3%.

Comment C35: It is reasonable to assume that, for the sea urchin fertilization WET test, a
"biologically significant" effect level is the same as the effect level that defines the test
acceptability criterion (TAC). For the EPA-approved sea urchins Aribaciapunctulata and
Strongylocentrotus purpuratus, the level of biological response defined as the TAC is a control
fertilization rate greater than 70 percent fertilization. Therefore, a control fertilization rate from
100 percent down to 70 percent can be considered an acceptable range for this species, and
within the expected level of natural biological variability.

Response:

This comment misinterprets test acceptability criteria (TAC), which set minimum requirements
for performing toxicity tests. In its 2002 Final WET Rule (USEPA, 2002b), EPA restricted the
term "test acceptability criteria" to biological measurements in test controls (i.e., control
survival, reproduction, and growth) that independently assess test acceptability (67 Fed. Reg.
69952, 69958). In the context of EPA's WET methods with sea urchins, a TAC is used to
invalidate tests where there is inadequate fertilization in controls (i.e., 100% dilution water). For
example, if there is 65% fertilization success in the controls, then the TAC would be used to
reject the test, regardless of the results in the treatments. Neither Arbacia punctulata nor
Strongylocentrotus purpuratus fertilization methods published by USEPA (2002, 1995) state that
the TAC is intended to be used for interpreting acceptable fertilization in treatments (i.e.,
mixtures of effluent and dilution water). It would be inappropriate to establish a TAC for the T.
gratilla method based on fertilization success in treatments.

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Hypothesis testing is the appropriate method in Hawaii for assessing the adequacy of fertilization
success in treatments. Hypothesis testing compares the response in treatments to the response
in controls, not to an arbitrary benchmark such as 70% fertilization. For example, if a treatment
exhibited 70% mean fertilization and the control exhibited 99% mean fertilization, then
hypothesis testing would distinguish whether that particular test exhibits a statistically significant
difference between the effluent concentration and the control.

It is Region 9's opinion that a more appropriate approach for ensuring biological significance is
by establishing appropriate bounds on the percent minimum significant difference (PMSD),
which is the approach taken by the CCH laboratory. Please see response to comment C34.

Comment C36: The T. gratilla protocol includes techniques that are inherently sensitive. For
example, the protocol specifies a 60-minute sperm exposure, which is three times longer than
the 20-minute exposure required for West Coast urchin fertilization tests, as outlined in Short
Term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to West
Coast Marine and Estuarine Organisms (EPA, 1995). This inconsistency results in exaggerated
sensitivity for Tripneustes gratilla relative to other West Coast urchin protocols.

Response: The T. gratilla method is not the only sea urchin WET method that calls for sperm
to be exposed to the treatment (or control) for 60 minutes prior to introduction of the eggs. For
example, the sperm exposure period of 60 minutes is consistent with the Arbaciapunctulata
urchin fertilization toxicity test method which specifies a 60 minute exposure (USEPA, 2002a).
A 60 minute exposure of urchin sperm compared to a 7-day exposure of Ceriodaphnia dubia is a
reasonable exposure time to measure endpoints. The measure of whether or not the sperm
exposure period is excessive is the fertilization success rate of the controls. Success in control
fertilization of T. gratilla tests is evidence that exposure time is not excessive.

Comment C37: WET tests using C. dubia have never indicated unacceptable toxicity.

The sea urchin results do not corroborate with more relevant, EPA-approved WET species.

To provide additional lines of evidence for low toxicity, additional WET test on other EPA-
approved marine species were conducted in 2007. These tests were run using the mysid shrimp
Mysidopsis bahia (a sensitive invertebrate) and the sheepshead minnow Cyprinodon variegates
(a representative fish).

Response: EPA has long recognized that there are species sensitivity differences among
different groups of organisms to different toxicants. This is why EPA recommends three-species
testing. HDOH's State Toxics Control Program: Derivation of Water Quality-Based Discharge
Toxicity Limits for Biomonitoring and Specific Pollutants (HDOH, 1989) states the following:

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A major concern about biomonitoring as a means to prevent toxicity is that the
organisms used in the test may not be as sensitive as the most sensitive organism
which either inhabits the receiving water, or would be present in the absence of
pollution. The Technical Support Document contains an extensive discussion of
the uncertainty associated with test species. Generally, testing with three diverse
species (e.g., from different taxa) is likely to ensure protection of the most
sensitive receiving water species. In certain critical cases, testing with additional
species may be desirable.

The probability of protecting sensitive species can also be increased, in cases
where fewer than three test species are used, by increasing the stringency of the
toxicity limit by a factor of 10 for two species, and by 100 for one species.

Test results indicate that T. gratilla is more sensitive to toxicants found in the Sand Island
effluent than other tested organisms. This is not the result of a deficiency with the T. gratilla test
method, nor does it mean that the results with T. gratilla should somehow be discounted. Rather,
it illustrates the reason for conducting WET tests with more than one species. Test results using
T. gratilla are valid and indicate toxicity that is not detected by other species, such as C. dubia,
or the two additional test species investigated by CCH, Mysidopsis bahia and Cyprinodon
variegatus. For this reason, in the selection of test species, EPA recommends the use of species
from ecologically diverse taxa (see USEPA, 1991, Section 1.3.4). By testing Hawaii effluents
with multiple species, including a sea urchin found in tropical waters of the Pacific Ocean, the
requirement at 40 CFR 122.44(d)(l)(ii) to consider species sensitivity when evaluating WET in
NPDES effluents is satisfied.

In response to these comments, EPA reviewed the results of toxicity tests using T. gratilla using
effluent from other wastewater treatment plants in Hawaii, to confirm that the method itself does
not leads to findings of toxicity with all effluents. EPA found that other permits in Hawaii
contain the requirement to conduct toxicity testing with T. gratilla, and the permittees, including
other CCH facilities, are able to meet target values based on the water quality standard and the
appropriate dilution. For example, tests conducted with effluent from the wastewater treatment
plants for Kailua, Waianae, and Hilo consistently meet the State of Hawaii water quality
standards for continuous discharges through submerged outfalls. Specifically, WET tests
reported in DMRs from CCH's Kailua WWTP met the target value of 186 TUc in 53 of the 59
WET tests conducted in the period from January 2003 through December 2007. Results reported
in DMRs for CCH's Waianae WWTP indicate that the discharge met the target value of 117.84
TUc in 57 of the 59 tests conducted in the period from January 2003 through December 2007.
Results reported in DMRs for the Hilo WWTP indicated that the discharge met the target value
of 62.8 TUc in all 16 of the tests conducted quarterly in the period from March 2003 through
September 2007 and reported in DMRs. These results indicate that the test method itself is not
the cause of the consistent failure of the Sand Island WWTP effluent to meet the WET criterion
using T. gratilla.

Results from WET tests using T. gratilla clearly indicate that the Sand Island WWTP effluent
routinely exerts a toxic effect that is predicted under critical conditions to exceed water quality

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standards at the boundary of the zone of initial dilution. EPA continues to conclude that the
proposed discharge will not attain water quality standards for WET and that the proposed
discharge will contain substances at levels sufficient to be toxic to aquatic life, in violation of
HAR 1 l-54-4(a)(4), and therefore is not protective of uses for Class A waters in Hawaii.

Comment C38: It is important to note that these results do not question the quality of
laboratory performance CCH conducted during its compliance WET test monitoring. Rather,
they reflect only the deficiencies inherent within the methods themselves, relative to the
biological variability inherent in this indigenous sea urchin. This issue can be addressed by
switching to an EPA-approved species.

Response: EPA does not question the performance of the CCH laboratory, but EPA disagrees
that CCH's failure to meet WET tests is due to deficiencies in the T. gratilla toxicity test. The
data presented by the CCH Water Quality Laboratory demonstrate their ability to conduct the T.
gratilla toxicity test well. The PMSDs for the CCH Water Quality Laboratory are consistently
low, indicating excellent precision. Consistent results represented in the CCH reference toxicity
control charts also indicate the reliability of the T. gratilla toxicity test. This consistency refutes
any claims of unacceptable biological variability in the T. gratilla test.

Using T. gratilla is allowed, under EPA's current rules, for discharges to the Pacific Ocean,
when authorized by the permitting authority (see the response to comment C31).

Nutrients

Comment C39: The criteria noted by the EPA relate to the geometric mean concentration.
There is nothing in the criteria that stipulates over what timeframe the geometric mean is to be
calculated. The decision by the EPA to calculate annual geometric means appears to be
completely arbitrary. Since sampling was normally done on a quarterly basis, in most cases only
four numbers were averaged at a given station and depth.

Repeatedly calculating geometric means based on an average of only four numbers leads to a
misleading representation of water quality.

Response: EPA's use of an annual geometric mean to assess nutrient and chlorophyll a data
was not arbitrary. It was based on the method used in the 1998 tentative decision for Sand Island
and the same method applied by HDOH when assessing data produced under HDOH's NPDES
permits. When the NPDES permit for the Kailua WWTP was reissued in 2006, nutrient and
chlorophyll a data collected quarterly from the receiving water were assessed on an annual basis
for each monitoring station and by each depth. An annual geometric mean was developed for
each depth at each monitoring station based on four samples collected quarterly. Although CCH
commented on other issues in the draft Kailua NPDES permit, it did not comment on the use of a
geometric mean for nutrients and chlorophyll a developed on an annual basis. For the Waianae
WWTP permit, an annual geometric mean for nutrients and chlorophyll a was calculated based

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on samples collected in the receiving water on a monthly basis. If CCH would have collected
samples more frequently in the Sand Island receiving water, EPA would have used them to
develop an annual geometric mean.

Comment C40: EPA based its tentative decision on water quality data collected in the vicinity
of the outfall from 1999 through 2006. Considering for the moment the six stations (Dl, D4, D5,
El, E4, and E5) beyond the zone of mixing (ZOM) that were taken into consideration by the
EPA, I find that the geometric mean ammonia nitrogen concentrations calculated over the eight-
year period from 1999 through 2006 were below 3.5 jag N per liter at all stations and depths
(Table 1). Yet for at least one depth at each station the Hawaii Class A open coastal water
quality standard of 3.5 [^g N per liter is exceeded when the geometric mean is calculated based
on data from a single year. My conclusion is that the standard of 3.5 jag N per liter is in fact
being satisfied at all of the stations beyond the ZOM and that the EPA's analysis is flawed.

When all data collected over the eight-year study period are included in the calculation of
geometric means, it becomes clear that the water quality standard is being satisfied at stations
beyond the ZOM.

Response: EPA assessed ammonia nitrogen data on an annual basis. See response to comment
C39 for an explanation of why EPA used an annual basis for the geometric mean, rather than a
longer averaging period, such as the eight-year period used by the commenter. There were
exceedances of the Hawaii water quality criterion for ammonia nitrogen at stations located at the
ZOM (D2, D3, E2, and E3) and at stations located beyond the ZOM (Dl, D4, D5, El, E4, and
E5).

Comment C41: The EPA's analysis is further flawed by the fact that it included data from all
sampling depths. An analysis of the data in Table 1 shows that there is a statistically significant
depth dependence in ammonia N concentrations (Kruskal-Wallis test, p = 0.02). The surface
concentrations are consistently as low as or lower than the concentrations measured from mid-
depth and bottom samples. It is therefore wrong to assume that all the numbers from a particular
station were drawn from the same distribution function, and the EPA's analysis is consequently
invalid.

Response: EPA's assessment was conducted in two steps. As in the 1998 tentative decision for
the SIWWTP, an annual geometric mean was developed for the entire water column at each
station. An annual geometric mean was then developed for each depth at each station. As noted
in the TDD, when the data were assessed using both approaches, it was determined that the water
quality standard for ammonia nitrogen was exceeded.

Comment C42: Dr. Edward Laws reviewed the tentative decision and stated the following:
"My conclusion from this analysis is that there is no evidence that the Sand Island outfall is
having any discernable effect on chl a concentrations in the vicinity of the outfall, including the

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ZOM stations. Furthermore, there is no evidence that the geometric mean water quality standard
of 0.3 micrograms per liter chl a is being violated at any stations or depths.

"Because of the impact of currents and mixing and the fact that phytoplankton can grow no more
rapidly than roughly one doubling per day, the outfall is having no discernable impact on
chlorophyll a concentrations at any stations or depths. There is no reason to believe that the
balanced indigenous phytoplankton community is being impacted by the outfall. "

Response: EPA has not concluded that the Hawaii water quality criterion for chlorophyll a has
been exceeded.

Comment C43: In light of Dr. Laws' expert review, the EPA conclusion in the 2007 TD that
CCH failed to demonstrate that it can consistently attain WQS for ammonia nitrogen is
unfounded. In particular, ammonia levels do not result in measurable biological responses with
respect to either nutrient enrichment or toxicity. In fact, at the March 12, 2008, public hearing,
Dr. Hans Krock, primary author of the ammonia standards of the WQS, indicated that EPA had
misapplied the ammonia standards and the basis of the calculations used by EPA is flawed. As a
result, the 2007 TD to deny the waiver based on ammonia WQS is unjustified and should be
reconsidered.

Response: EPA has concluded that the water quality criterion for ammonia nitrogen is not met,
because receiving water data from stations at the ZOM and beyond exceeded the State of
Hawaii's promulgated water quality standards on an annual basis. A determination that there
have not been measurable biological responses does not change the fact that water quality
standards have been exceeded.

pH

Comment C44: EPA did not take exception to the pH of the SIWWTP discharge, and CCH has
not requested a variance for pH.

Response: EPA concluded it is likely that the projected discharge will not exceed the State
water quality standard for pH in the receiving water.

Public Water Supplies

Comment C45: 40 CFR 124.62(b), which implements Section 301(h)(2), requires that the
discharge must allow for the attainment and maintenance of water quality that ensures protection
of public water supplies.

EPA concludes that this criterion is satisfied.

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Response: EPA agrees that this criterion is satisfied.

Shellfish. Fish, and Wildlife

Comment C46: 40 CFR 124.62 also requires that the SIWWTP not interfere with the
attainment of a BIP at and beyond the edge of the ZID. In the following subsections, CCH
addresses EPA comments in the 2007 TD with regard to the potential for impacts on the
protection and propagation of a BIP of shellfish, fish, and wildlife from discharge of the
SIWWTP effluent.

In the 2007 TD, EPA notes the following:

"Although the results of EPA 's analysis are mixed, EPA concludes that the applicant has failed
to demonstrate that a modified discharge would not interfere with the attainment or maintenance
of that water quality which assures protection of a balanced, indigenous population of shellfish,
fish, and wildlife."

Apparently, EPA's position is based on its opinion that:

"[T]he scope of the biological monitoring is limited; only portions of the marine community are
sampled, [and T]he samples that were collected may not have been collected during critical
conditions, for example when initial dilution was at critical levels. "

CCH disagrees with this finding, based on the results of 17 years of in-field and in-laboratory
biological and chemical monitoring that have been performed in accordance with the EPA-
approved Section 301(h) monitoring plan. In the Permit, EPA revised the monitoring program to
include expanded core monitoring, and a regional monitoring program (to take into account the
potential environmental effects to Mamala Bay from both the SIWWTP and the Honouliuli
WWTP discharges). In addition to the expanded core monitoring, CCH conducted this 2-year
regional Mamala Bay monitoring program in years 3 and 5 of the Permit. EPA approved the
details of the joint EPA/CCH-developed regional program (EPA Region 9 Water Division
[Alexis Strauss], June 14, 2001):

"We have reviewed the modifications and additional details of the monitoring effort for summer
2001 and give the City and County of Honolulu approval to implement the Mamala Bay
Regional Monitoring Plan (BMP). "

"We appreciate your working with us on providing a comprehensive monitoring effort in
Mamala Bay."

CCH submitted the data and reports of the regional program to EPA. This information was to
have been used to determine whether the regional program would replace the core monitoring.
EPA did not make a determination or provide further direction. In the 2007 TD, EPA does not
claim that CCH has not complied with its EPA-approved monitoring programs. EPA never

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requested CCH to modify its monitoring program despite its authority under the Permit to do so.
Having failed to take action contemplated by the Permit to modify CCH's EPA-approved
monitoring program should it have had any concerns, EPA cannot now, in good faith, claim it is
too "limited" to support a Section 301(h) waiver.

For all of the reasons specified previously, it is unreasonable for EPA to claim that the
monitoring program is insufficient to answer the questions that are posed by the Section 301(h)
criteria with respect to maintenance of a BIP and recreational activities at or beyond the edge of
the ZID. Its conclusion in this regard, after years of silence implying satisfaction with the very
program that it approved, is arbitrary and capricious, and should be reconsidered.

In fact, EPA had no need to seek modifications of CCH's approved monitoring program. The
following subsections summarize 17 years of extensive biological monitoring that CCH
conducted. The weight of evidence overwhelmingly supports the conclusion that the BIP is
protected. These results indicate that, using methods that represent "state of the practice" for
biological monitoring, no evidence exists indicating that the BIP is adversely affected by the
SIWWTP effluent.

Response: The primary basis for EPA's conclusion that the applicant has failed to demonstrate
that a modified discharge would not interfere with the attainment or maintenance of that water
quality which assures protection of a balanced, indigenous population of shellfish, fish, and
wildlife is not limitations of the monitoring program. EPA's Technical Support Document for
Water Quality-based Toxics Control states that an integrated approach to water quality-based
toxics control consists of whole effluent, chemical-specific, and biological assessments (EPA,
1991). Exclusive use of one approach alone cannot ensure required protection of aquatic life.
EPA has considered the available information on WET, specific chemicals, and the biological
data collected near the outfall and found that the proposed discharge would not attain water
quality standards established to protect aquatic life, specifically WET and ammonia nitrogen.
Thus, the primary basis for EPA's conclusion that the applicant has failed to demonstrate that a
modified discharge would not interfere with the attainment or maintenance of that water quality
which assures protection of a balanced, indigenous population of shellfish, fish, and wildlife is
that the proposed discharge would not attain these water quality standards.

Comment C47: The Permit requires the following biological and chemical monitoring to
demonstrate compliance with the BIP requirements of the Section 301(h) waiver: (a) annual
monitoring of benthic infaunal diversity and abundance near the outfall, (b) annual priority
pollutant analyses of sediment near the outfall, (c) annual priority pollutant analyses of tissues
(both muscle and liver) of two species of fish from near the outfall, (d) quarterly offshore
monitoring of nutrients and chlorophyll a near the outfall, (e) monthly chlordane and dieldrin
analyses of effluent, (f) semi-annual priority pollutant analyses of effluent, and (g) monthly WET
testing of effluent using three species for acute testing and one species for chronic testing. CCH
also performs an annual evaluation of health metrics (that is, necropsy and histopathology) of
fish from near the outfall.

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The data resulting from these surveys and studies demonstrate through a cumulative weight of
evidence that a BIP exists beyond the edge of the ZID, as supported by the following discussion.

Response: EPA agrees that the SIWWTP NPDES permit contains these monitoring
requirements. However, EPA does not agree that the data from these surveys and studies
demonstrate that the discharge does not interfere with the attainment or maintenance of that
water quality which assures protection of a BIP.

Comment C48: Benthic Infaunal Abundance and Diversity: In accordance with the Permit
requirements, benthic fauna have been sampled at 15 offshore locations. The biomonitoring of
marine life in the vicinity of the SIWWTP Ocean Outfall in 2006 marked the 17th year of a study
that began in 1990. Five sampling stations are located on each of three transects located on
isobaths of approximately 20 meters, 50 meters, and 100 meters. Each transect includes two
stations near the diffuser at or inshore of the boundary of the ZOM and three stations beyond the
diffuser.

The response patterns of benthic fauna near the SIWWTP ocean outfall in 2006 showed little or
no indication of a significant influence from the discharge of the diffuser effluent. Most
statistically significant differences in nonmollusks among the 15 stations were associated with
differences between the three depth ranges at which the samples were collected, and reflect the
influence of depth-related factors. When stations were pooled by proximity to the outfall, no
significant differences existed between these stations and those distant from the outfall in the
abundance or taxa richness of polychaetes, crustaceans, and all nonmollusks. Taxa composition,
diversity, and evenness of nonmollusks were also more closely associated with water depth than
proximity to the outfall. In addition, no significant differences in mollusk abundance or taxa
richness existed among transects or in abundance between the near-diffuser stations and the
beyond-diffuser stations. However, mollusk taxa richness was significantly greater at near-
diffuser stations than at beyond-diffuser stations. Based on comparative analysis of data over the
course of monitoring for the 17 study years, there is no indication of a negative temporal trend of
the diffuser effluent on the macrobenthos.

Benthic communities continue to be diverse and variable from station to station and from year to
year. There is strong evidence of normal cyclic variations at most stations, but no strong
evidence of effects from the SIWWTP outfall. For additional details, see Benthic Faunal
Sampling Adjacent to Sand Island Ocean Outfall, O 'ahu, Hawai 'i, August 2006 (WRRC,
February 2007), a copy of which was submitted to EPA and to HDOH. This report concludes
the following:

"[T]here is very little evidence of adverse effects from sewage effluent discharged through the
Sand Island Ocean Outfall on the macrobenthic community in 2006. Sediments near the outfall
have not been enriched by organic material. Significant differences in the abundance and taxa
richness ofpolychaetes, crustaceans, and all nonmollusks among stations were related primarily
to differences among transects and reflected the influence of ecological factors associated with
water depth. There were no significant differences between near-diffuser and beyond-diffuser

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stations in the abundance and taxa richness of mollusks, polychaetes, crustaceans, and all
nonmollusks. Changes in the macrobenthos since 1986 do not reflect any long-term temporal
trends related to the outfall. A diverse and abundant macrobenthos was present at stations near
the diffuser of the Sand Island Ocean Outfall in 2006. "

Response: EPA does not disagree with the data collected in these benthic studies. These results,
however, must be considered in conjunction with the available data on WET and specific
chemicals in the discharge. See also response to comment C46.

Comment C49: Sediment Monitoring: CCH has collected and analyzed offshore sediment
samples each year since 1993 under its monitoring program. The Permit specifies monitoring
once per year at each of 15 offshore stations, at the same locations described previously for
benthic diversity. Annual monitoring is conducted in duplicate at 10 of these stations, and once
at the other 5. Approximately 375 sediment samples have been taken over the 15-year period.
Each of these sample analyses includes more than 140 target analytes on the EPA priority
pollutant list. The database of priority pollutants contains more than 15,000 analytical records.

The following evaluation of sediment data is based on the recent 5-year period between August
29, 2002, and August 26, 2007. To provide a perspective on the potential for risk to benthic
infauna, constituents detected in sediment over this period were compared with the following
screening-level sediment quality benchmarks, available from the National Oceanic and
Atmospheric Administration (NOAA) Screening Quick Reference Tables (SquiRTs) (NOAA,
2006):

•	The NOAA Effects-Range-Median (ERM). This benchmark represents the chemical
concentration above which adverse effects would be expected to occur (Long et al., 1995).

•	The State of Washington Apparent Effects Threshold (AET). The State of Washington
considers this benchmark to be predictive of toxicity.

The results of the sediment screening evaluation indicate that, over the last 5 years, none of the
detected constituents (metals or organics) exceeds these risk-based screening benchmarks at the
ZID edge or beyond. In the most recent sampling in 2007, no detected constituents exceeded
screening benchmarks at any station (even within the ZID). Most important, neither dieldrin nor
chlordane (which EPA cited in the 2007 TD as exceeding WQS in the SIWWTP effluent) has
ever (1993-2007) been found in sediment at levels above the NOAA-sponsored toxicity
benchmarks. This is consistent with EPA's conclusion in the 2007 TD:

"[T]hat sediment chemistry data do not show that the proposed discharge is likely to cause
adverse effects due to contamination of sediment around the outfall. "

Contrary to EPA's assertion, this affirmatively demonstrates that the modified discharge does not
interfere with the attainment of a BIP.

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Response: EPA has not found specifically that concentrations of toxic pollutants in the
sediments surrounding the outfall have adversely affected benthic infauna. EPA finds that the
proposed discharge could result in bioaccumulation in fish at levels that would pose a significant
threat to persons who consume fish caught near the outfall, based on levels of chlordane and
dieldrin observed in the effluent. EPA has also found that the proposed discharge would likely
exceed water quality standards for WET and ammonia nitrogen and concluded that this could
result in adverse impacts to marine life surrounding the outfall (see also response to comment
C46).

Comment C50: Fish Health Metrics: Researchers at the University of Hawaii's WRRC
continue to annually monitor the health of fish from around the ocean outfall at SIWWTP, and to
evaluate the fish for skin or liver neoplasms (tumors) and pre-neoplastic changes. In the most
recent available results from 2007 (WRRC, January 2008), necropsy and liver histopathology
were conducted on 30 specimens each of two different fish species, collected live, to assess
potential exposure to pollutants in waters near the terminus of the SIWWTP. Gross necropsy
and liver histopathology were performed on bluestripe seaperch (Lutjanus kasmira) and bigeye
scad (Selar crumenophthalmus). Findings were compared with parallel tests performed on the
same species collected live at reference stations FR1 and FR2 in Maunalua Bay.

The 2007 necropsy and liver histopathology study included 60 total fish collected during July
2007, 10 of each species collected at the SIWWTP outfall and 10 of each species collected from
each of station FR1 and station FR2. The incidences of spores, parasites, and hyperplasia were
not higher at the outfall station than at the reference stations. Results indicated that neither gross
nor microscopic evidence tumors or tumor-like lesions were seen in any internal or external
organs of any of the fish collected at either the reference stations or the outfall station.

Therefore, no reason exists to hypothesize adverse effects on fish health as a result of the outfall
discharge. For additional details, see the report: Necropsy and Liver Histopathology for Fish
Sampled in the Vicinity of the Sand Island Ocean Outfall and at Reference Stations in Maunalua
Bay, O 'ahu, HawaiJuly 2007 (WRRC, January 2008).

Response: EPA does not disagree with the findings of the 2007 investigation. These results,
however, must be considered in conjunction with the available data on WET and specific
chemicals in the discharge. See also response to comment C46.

Comment C51: Fish Tissue Residue Effects: To provide an additional line of evidence with
regard to potential influences of SIWWTP effluent on a BIP, fish tissue levels were evaluated to
determine whether any constituents have accumulated at levels reported in the scientific
literature to be potentially toxic to fish (as opposed to their potential effects on people consuming
fish, as evaluated in Section IIC). Databases on fish tissue residue versus effects relationships
were obtained from the following readily available federal agency sources:

• EPA MED-Duluth Toxicity/Tissue Residue Database (derived from A.W. Jarvinen and
G.T. Ankley, 1999) http://www.epa.gov/med/Prods_Pubs/tox_residue.htm

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• Army Environmental Residue Effects Database (ERED)
http: //el. erdc. usace. army .mil/ered/Index. cfm

The fish tissue residue versus effects data, summarized in Table IIC-1, were obtained only for
those chemicals that were (1) detected in tissue within the last 5 years (2002-2007) and (2) found
at higher levels in fish from the outfall than in those from the control stations. The literature
search included data from tissue residues in both fish muscle (fillets) and whole body. The
literature sources of these studies (as cited in the databases listed previously) are summarized in
Table IIC-2.

The results indicated that none of the constituents evaluated are present in fish caught from the
outfall area at concentrations exceeding tissue-residue effects benchmarks derived from studies
where adverse effects were actually observed. These results support the conclusion that outfall
constituents are not accumulating at concentrations that pose risks to marine fish populations.

Response: WET testing and ammonia nitrogen monitoring results are the primary bases for
EPA's conclusion that the applicant has failed to demonstrate that a modified discharge would
not interfere with the attainment or maintenance of that water quality which assures protection of
a balanced, indigenous population of shellfish, fish, and wildlife. EPA's Technical Support
Document for Water Quality-based Toxics Control states that an integrated approach to water
quality-based toxics control consists of whole effluent, chemical-specific, and biological
assessments (EPA, 1991). The fish tissue data alone do not demonstrate that the discharge does
not interfere with a BIP.

Comment C52: Nutrient-Related Impacts: As discussed in the Nutrients subsection of Section
IIB, no reason exists to believe that discharge of nutrients from the SIWWTP outfall is causing
any deleterious effects on the marine environment with respect to water quality or marine
organisms. Ammonia levels, when measured over the time frame since issuance of the Permit,
have not exceeded WQS for stations beyond the ZOM. In addition, there is no indication that
ammonia nitrogen is, in any way, resulting in algal blooms or other eutrophic conditions, even in
the direct vicinity of the discharge. EPA speculates that the discharge may stimulate algae
blooms and that the proposed discharge may have nutrient-related effects beyond the ZID. EPA
should reconsider its evaluation of nutrient-related impacts by taking into account the
relationship between the phytoplankton (chlorophyll a) measurements and the presence of
ammonia. In his review of the same data that EPA reviewed, Dr. Laws (February 1, 2008) notes:

"If the outfall is responsible for producing geometric mean total ammonia N concentrations as
high as 4.0 micrograms per liter (Table 2), why are the chlorophyll concentrations not elevated?
The answer is that the growth rate ofphytoplankton is at most roughly one doubling per day.
Currents and mixing in the vicinity of the Sand Island outfall transport the nitrogen away from
the outfall and dilute its concentration so rapidly that the phytoplankton have no chance to
respond to the nutrients in the effluent. "

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Response: EPA has concluded the water quality criterion for ammonia nitrogen is not met,
because receiving water data from stations at the ZOM and beyond exceeded the State of
Hawaii's promulgated water quality standards on an annual basis. A determination that there
have not been measurable biological responses does not change the fact that water quality
standards have been exceeded.

Comment C53: Water Quality Monitoring Data: As discussed in the Toxics subsection of
Section IIB of the comments, comparison of the effluent priority pollutant data with chronic
WQS protective of marine aquatic organisms indicates that no levels of priority pollutants
exceeding these criteria have been detected over the entire period of 2000-2007. These results
provide a strong line of evidence that the effluent is not interfering with the protection and
propagation of a BIP of fish, shellfish, and wildlife.

Response: EPA's conclusion regarding the protection and propagation of a balanced,
indigenous population of fish, shellfish, and wildlife is based largely on the results of whole
effluent toxicity testing. EPA has determined that the discharge likely would have toxic
impacts beyond the ZID. See also response to comment C46.

Comment C54: Whole Effluent Toxicity: The Whole Effluent Toxicity subsection of Section
IIB of the comments summarizes the evaluation of test results for the SIWWTP effluent. For the
reasons noted in that section, CCH believes that continued use of T. gratilla, a species not on the
list of EPA-approved WET test species and prohibited from consideration for regulatory
compliance purposes in the Permit, is inappropriate for the next permit cycle. Specifically, EPA
stated expressly in the Permit that T. gratilla was not to be used to determine regulatory
compliance, instead identifying C. dubia as the only appropriate species to be used for that
purpose. As discussed in Section IIB, the WET tests performed on C. dubia indicate that the
effluent does not contain unacceptable levels of toxicity. In fact, WET test results for chronic
toxicity for three sensitive EPA-approved species (the water flea [C. dubia], the mysid shrimp
[M. bahia\ and the sheepshead minnow [C. variegatus]) that are considered representative of the
types of organisms residing near the SIWWTP outfall indicate that no toxicity exists at effluent
concentrations found at the ZID edge.

Response: T. gratilla is an appropriate test species for assessing attainment of the water quality
standard for WET. Tests using T. gratilla consistently demonstrate levels of toxicity that exceed
the standard. See responses to comments C31, C32 and C37.

Comment C55: The purpose of this evaluation is to determine whether any evidence links
discharges of SIWWTP effluent with potential adverse ecological effects at the edge of or
beyond the ZID. This determination is made based on both quantitative and qualitative
evaluations. To provide confidence in any decision making for marine resources near the outfall,
potential effects to aquatic and/or benthic communities are assessed using an approach that

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considers multiple lines of evidence collectively, in accordance with EPA guidance in Guidelines
for Ecological Risk Assessment (EPA, April 1998).

Based on the available biological monitoring data, all lines of evidence lead to a conclusion that
no measurable impact to a BIP of fish, shellfish, and wildlife at and beyond the edge of the ZID
exists.

The weight of evidence includes the following:

1.	No changes have been observed in benthic infaunal abundance and diversity that are
attributable to the outfall

2.	Sediment monitoring indicates that detected concentrations of constituents found in the
effluent are below risk-based screening levels

3.	Fish health metrics results show no indication that there are gross or histopathological changes
that relate to the outfall discharge

4.	Effluent constituents are not accumulating in fish tissue at concentrations that pose risks to
fish resources (or to human fish consumption pathways)

5.	Ammonia concentrations are not causing excessive phytoplankton growth or eutrophic
conditions and are below any concentrations that could be considered to be toxic

6.	Effluent monitoring indicates that, over the entire evaluation period of 2000-2007, no detected
levels of priority pollutants have exceeded WQS for protection of marine aquatic life

7.	WET test results using sensitive EPA-approved species that are required by the Permit and/or
are considered representative of the types of organisms residing near the outfall indicate that no
toxicity at effluent concentrations is found at the ZID edge

When considering the collective weight of evidence using these seven lines of evaluation for
potential risk to fish and invertebrates, more than ample evidence exists to conclude that the
effluent is not resulting in ecologically significant impacts to these communities in the vicinity of
the SIWWTP outfall. Further, a review of historical information indicates that the conditions
observed at the edge of the ZID today are consistent with the data considered by EPA in its 1998
decision to approve the Section 301(h) waiver.

In reaching its predetermined conclusion, the 2007 TD ignores the many independent lines of
evidence set forth previously and EPA's TSD (EPA Office of Water, March 1991), which states:

"The results of one assessment technique should not be used to contradict or overrule the results
of the other (s). "

Based on the foregoing discussion, EPA's denial of CCH's waiver application on the basis of
alleged interference with sustaining a BIP of fish, shellfish, and wildlife at the edge of the ZID is

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not supported by the data that EPA required to be gathered; is arbitrary and capricious; and
should be reconsidered.

Response: The commenter's basic argument here appears to be that because current data do not
show that actual adverse effects on aquatic organisms have already occurred, and because, in the
commenter's opinion, whole effluent toxicity should be evaluated differently, that CCH has
demonstrated that its discharge would not interfere with the attainment or maintenance of that
water quality which assures protection of a balanced indigenous population of fish, shellfish, and
wildlife. EPA has addressed the comments regarding whole effluent toxicity in responses to
comments C31 through C38. Those test results cannot be ignored, nor can the data related to
ammonia nitrogen.

The weight of evidence approach proposed in this comment is not appropriate for evaluating
whether CCH has met the 301(h) criterion related to maintaining water quality which assures
protection of a BIP. Rather, as discussed in the tentative decision, EPA has issued guidance that
addresses the integration of various types of available data. Specifically, EPA's Technical
Support Document for Water Quality-based Toxics Control states the following with respect to
the integration of chemical specific, whole effluent toxicity, and bioassessment data:

It is EPA's position that the concept of "independent application" be applied to
water quality-based situations. Since each method has unique as well as
overlapping attributes, sensitivities, and program applications, no single
approach for detecting impact should be considered uniformly superior to any
other approach. For example, the inability to detect receiving water impacts
using a biosurvey alone is insufficient evidence to waive or relax a permit limit
established using either of the other methods.

In the case of Sand Island, this approach leads to a conclusion that the proposed
discharge could adversely affect aquatic life. EPA remains concerned that the proposed
discharge could adversely affect aquatic life, notwithstanding the current biological
data, given the available information on WET and ammonia nitrogen.

See also response to comment C46.

Recreational Activities

Comment C56: In the 2007 TD, EPA notes the following: "EPA concludes that fishing (fish
consumption) may be adversely affected by the proposed SIWWTP discharge.... Given the
possible impacts to fishing, EPA finds that the applicant has not demonstrated that its proposed
discharge will not interfere with the attainment or maintenance of water quality which allows for
recreational activities in and on the water at and beyond the ZID. "

EPA further states that the SIWWTP discharge: "Could cause bioaccumulation at [a] level that
would pose a significant threat to persons who consumedfish near the outfall. "

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CCH disagrees with these conclusions and believes that the long-term monitoring program of
fish tissue, fish catchment data, and the results of bacteria sampling at surface stations
(summarized in the following subsections) support the conclusion that recreational activities
remain protected by discharge of primary treated wastewater at a depth of 235 feet
approximately 1.7 miles offshore. The weight of evidence is clear that recreational activities
have been and remain protected. EPA has chosen to ignore this large body of monitoring data to
reach a conclusion that is not supported by the evidence.

Response: EPA continues to conclude that the applicant has not demonstrated that its discharge
will not interfere with the attainment or maintenance of water quality which allows for
recreational activities in and on the water at and beyond the ZID due to the possible impacts to
recreational fishing. This conclusion is based primarily on the expected failure of the proposed
discharge to attain water quality criteria for chlordane and dieldrin, which HDOH has adopted at
levels set to protect persons from adverse effects of consuming fish. See also response to
comment C57.

Comment C57: Fish Consumption and Fish Tissue Data: The Permit requires annual
monitoring of tissue concentrations from fish harvested near the outfall, and at two control (or
reference) stations. Because natural (such as minerals) or anthropogenic (such as urban runoff)
background sources unrelated to the outfall contribute to detected constituents in fish tissue, the
Permit assumes that the degree of bioaccumulation attributable to the effluent can be evaluated
by comparing the tissue results from fish caught in the outfall area with those from fish caught in
the reference area.

CCH has collected and analyzed offshore fish tissue samples since at least 1990. The annual
monitoring includes analysis of tissue residues (both muscle and liver) in two species of
common, somewhat sedentary fish of edible size: Akule (bigeye scad; S. crumenophthalamus)
and Ta'ape (bluestripe seaperch; L. kasmira). These species of fish were selected with EPA
approval to be representative of those caught by commercial and sport fishermen. To ensure
representativeness, each fish sample consists of a composite of 10 individual fish.

More than 120 composite fish and liver tissue samples have been collected, representing more
than 600 individual fish. Each of the sample analyses includes more than 130 target analytes on
the EPA priority pollutant list. The database of priority pollutants over the period of August 20,
1993, to February 9, 2007, contains more than 15,000 analytical records for muscle and liver
tissue. This large database shows that no long-term potential exists for unacceptable
bioaccumulation in fish from near the outfall.

Fish tissue analytical results generated over the 5-year period from March 15, 2002, through
February 9, 2007, were evaluated to provide the best representation of current conditions. To
provide a perspective on the potential for fish consumption risk, constituents detected in the
edible fish muscle were compared with the risk-based screening concentrations (RBCs) obtained
from EPA Region 3 in its Updated Risk Based Concentration Table (EPA Region III, October

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2007). These RBCs equate to an excess cancer risk of one in one million for constituents
suspected of being carcinogenic. They conservatively assume consumption of an average of 54
grams of fish per day, every day for 30 years. It should be noted that the consumption rate of 54
grams per day is approximately three times the current "national average" of 17.5 grams per day
used for derivation of ambient water quality criteria for the protection of human health (EPA
Office of Water, October 2000), providing added conservatism to this screening evaluation.

The results of the fish tissue screening evaluation indicated that, of those constituents detected in
the last 5 years, only a single detection of heptachlor epoxide in 2003 was found in fish from the
outfall station at a level above both the screening-level RBC and corresponding results from the
reference stations. However, the low concentration detected (0.0012 milligrams per kilogram
[mg/kg] wet weight basis) was only slightly above the level of detection (0.0010 mg/kg) noted in
the reference area fish. In addition, this chemical was not detected in the other fish samples
collected concurrently from the outfall area. Therefore, the single detection of heptachlor
epoxide is not interpreted to be a meaningful contributor to risk.

These results indicate that, over the entire 5-year evaluation period, none of the detected
constituents (metals or organics) has been present at levels that exceed risk-based screening
benchmarks that can be attributable to the effluent.

An important finding from this screening evaluation is that neither dieldrin nor chlordane, cited
by EPA in the 2007 TD as exceeding fish consumption WQS in the SIWWTP effluent, has ever
(1993-2007) been found in edible fish tissue at levels above EPA-sponsored RBCs that would
indicate a probability of fish consumption risk. Over the last 5 years, dieldrin has not been
detected at all in fish tissues, and chlordane has been detected only once at the outfall, in 2005 at
a level of 0.00082 mg/kg (as alpha-chlordane). However, chlordane was detected at even higher
levels (although still below the RBC of 0.009 mg/kg) at a control station in 2006, at a level of
0.0066 mg/kg, indicating a potential noneffluent source. These results clearly support the
conclusion that neither dieldrin nor chlordane from the outfall poses unacceptable fish
consumption risk.

Moreover, these actual fish tissue results suggest that the conservative assumptions inherent
in the derivation of the fish consumption WQS for chlordane and dieldrin (e.g., use of
laboratory-derived bioaccumulation factors that assume long-term equilibrium conditions) are
not occurring in the real world near the SIWWTP outfall. Also, as previously discussed, the
WQS use outdated input data that EPA has since updated using scientific improvements in
toxicity and exposure estimation.

Response: Hawaii has established numeric criteria for toxic pollutants in water to ensure the
fish caught by anglers in Hawaii's waters will be safe to eat. EPA's conclusion that the proposed
discharge would not protect recreational fishing (fish consumption) is based on the expected
failure of the proposed discharge to meet water quality standards specifically adopted by the state
of Hawaii for two pesticides, dieldrin and chlordane, to protect against carcinogenic effects.
Based on the exceedances of Hawaii's water quality standards, EPA continues to conclude that
pollutants discharged from the Sand Island outfall could contribute to bioaccumulation in fish in

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the vicinity of the Sand Island outfall that could be harmful to persons eating the fish. As a result
of these exceedances, we find that the applicant has not demonstrated that the discharge is
protective of recreational activities, specifically fishing. Although available fish tissue data do
not, in and of themselves, point to current adverse impacts from the discharge, the absence of
detections of these pesticides in fish tissue sampling does not change the fact that water quality
standards have been exceeded. Water quality standards are set at protective levels that prevent
unacceptable levels of bioaccumulation. The degree of protection built into the water quality
standards is designed to ensure that adverse effects will not exist in the receiving water. The
objective of the Clean Water Act is to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters. CWA section 101(a). Under section 301(h), the
applicant's burden is to show that its discharge will not interfere, alone or in combination with
pollutants from other sources, with the attainment or maintenance of that water quality which
allows recreational activities.

Comment C58: Fish Consumption and Effluent Quality Data: Effluent quality data were
reviewed previously. Concentrations of chlordane and dieldrin reported in the effluent, which
EPA noted as exceeding fish consumption WQS, have been reinterpreted in light of more
reliable EPA-derived risk-based criteria (2006 AWQC) based on improved science and new
testing information obtained using more suitable, sensitive, and definitive analytical methods
than those used in the past. These new results indicate that the previously reported dieldrin
exceedances are false positives, resulting in EPA's misconstrued conclusion of noncompliance.
During this new testing, dieldrin was not detectable in the effluent using the GC/MS analytical
technique, although it continued to be misidentified as present in split samples when using the
method that EPA approved for the Section 301(h) monitoring. For chlordane, annual average
levels in effluent since 2000 have not exceeded the most current (2006) AWQC published by
EPA and have been within protective levels for a fish consumption pathway.

Response: In this 301(h) analysis, protection of recreational uses must be analyzed in terms of
the particular water quality standards adopted by the state of Hawaii to protect persons
consuming fish caught in Hawaii waters. Please also see response to comment C57. EPA
disagrees with the commenter's assertions regarding analytical methods, including the
description of measured dieldrin levels as "false positives." Please see response to comment C29
for a comprehensive discussion of alternative analytical methods.

Comment C59: Fish Consumption and Sediment Quality Data: Sediment quality data were
reviewed previously. On the basis of evaluation of the offshore sediment samples that CCH
collects for priority pollutant analysis on an annual basis, it is important to note that dieldrin and
chlordane, cited by EPA in the 2007 TD as exceeding fish consumption WQS in SIWWTP
effluent, have not been detected in the sediments around the outfall at levels that would pose a
bioaccumulation risk in recreationally caught fish. Dieldrin and chlordane have not been
detected in sediment since the Permit was issued, indicating that neither of these pesticides has
been accumulating in sediment. These results indicate that these pesticides are not a source for
bioaccumulation, as verified from the fish tissue results previously described.

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Response: Please see responses to comments C57 and C58. Hawaii's water quality standards
for dieldrin and chlordane apply to water samples, not sediment samples.

Comment C60: In accordance with the Permit, fish catch statistics from the State of Hawaii
Department of Land and Natural Resources, Division of Aquatic Resources are reviewed
annually to detect changes in fish abundance and distribution in the vicinity of the outfall. These
records are available for the years 1970 through 2006, a 37-year period. Although normal year-
to-year changes are expected, the presence of long-term trends might be indicative of potential
influences from wastewater discharge. Representative fish species of various trophic levels and
habitat (pelagic, benthic, coastal/pelagic, and reef communities) are evaluated. The SIWWTP
outfall is located within inshore catchment Area 400. The Barbers Point ocean outfall is located
within inshore catchment Area 401. Adjacent inshore catchment Area 402 is a control site used
to compare fish takes of species naturally plentiful in Oahu waters. Fish abundance is
determined by totaling commercial fishing questionnaire data (in total pounds) in each fish
category for each catchment area.

Regarding fish catchment statistics, in the 2007 TD, EPA states its finding as:

"From this limited amount of data, EPA concludes that the information from fish catchment
areas and the remotely controlled video camera do not indicate that the proposed discharge
would adversely affect fish health or community structure. "

Response: This comment accurately summarizes EPA's conclusion regarding these data.

Comment C61: Bacterial standards (currently implemented based on Enterococcus
concentrations) are risk-based standards and assume direct-use contact with affected waters by
activities such as swimming, snorkeling, and diving. The outfall is approximately 2 miles
offshore (which precludes swimming and snorkeling) and discharges at a depth of 235 feet
(which precludes recreational diving). The effluent plume undergoes rapid initial dilution and
then the prevailing currents further dilute it and carry it away from the nearest recreational areas,
which are primarily the beaches and shallow water less than 100 feet deep and less than 1,500
feet offshore. This makes it implausible that the public will be exposed to the plume, and less
likely still that bacterial concentrations would be problematic if exposure occurred.

Available bacterial data were reviewed previously. EPA agrees that these data show that water-
contact recreational users are not affected by discharge from the SIWWTP outfall. Moreover,
the offshore stations near the outfall are at a distance and depth that put them well beyond all
direct-contact recreational use. CCH therefore concludes the following:

• There is essentially no reason for concern for bacterial concentrations interfering with water
contact recreation

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• In the unlikely event that a combination of oceanographic and atmospheric conditions might
exist that could potentially drive the plume onshore, these conditions could be monitored in real
time and the UV disinfection system used as long as those conditions persist

The Permit contemplates and the bacterial data confirm that limited operation of the UV system
may be appropriate. After one full year of continuous UV system operation (which was
completed in December 2007), CCH may request EPA approval to operate the UV system at
times when predetermined ocean conditions would drive a surfacing effluent plume toward
shore. CCH believes that this option is the correct course of action and that it should be
incorporated in the new NPDES permit. CCH has requested to meet with EPA to discuss the
appropriate operation of the UV system.

Response: Hawaii's marine waters are designated for recreation. Therefore, bacteria criteria to
protect this use must be met at all times in all locations beyond the boundary of the zone of
initial dilution. On page 46 of the tentative decision, EPA concluded that bacterial
concentrations associated with the discharge of wastewater from the Sand Island outfall do not
meet current water quality standards without disinfection at all locations beyond the boundary of
the zone of initial dilution. To meet EPA's promulgated criteria for bacteria in coastal waters,
EPA concluded CCH must adequately operate and maintain the UV disinfection system at all
times. In their comments, CCH did not submit any information that would lead EPA change its
conclusion that continuous disinfection is needed to meet bacteria criteria at the edge of the zone
of initial dilution.

EPA expects that CCH will continue to operate the UV disinfection system at all times.

Comment C62: The purpose of this evaluation is to determine whether any evidence links
discharges of SIWWTP effluent with potential impacts to the attainment or maintenance of
recreational activities at and beyond the ZID. This determination is made based on both
quantitative and qualitative evaluations. To provide confidence in any decision making with
regard to recreational activities, multiple lines of evidence are considered collectively. Based on
the available monitoring data, as summarized previously, these lines of evidence include the
following:

1.	None of the detected constituents (metals or organics) in fish tissue over the entire period of
monitoring has been found at concentrations that exceed risk-based screening benchmarks or that
can be attributed to the SIWWTP effluent. Neither of the pesticides (dieldrin and chlordane)
cited by EPA in the 2007 TD as exceeding fish consumption WQS in the SIWWTP effluent has
ever (1993-2007) been found in edible fish tissue at levels above EPA-sponsored RBCs that
would indicate a probability of fish consumption risk.

2.	Effluent monitoring indicates that historical exceedances of WQS for dieldrin are likely false
positives resulting from analytical procedures that are not sufficiently sensitive or selective to
make logical regulatory compliance decisions, leading to a misinterpretation on the part of EPA

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of noncompliance with WQS. Further, for chlordane, annual average levels in effluent since
2000 have never exceeded the most current and protective AWQC endorsed by EPA.

3.	Dieldrin and chlordane have not been detected in sediment since the Permit was issued,
indicating that these pesticides have not been accumulating in the sediment and are not a source
of bioaccumulation.

4.	EPA has noted that information from fish catchment areas does not indicate that the SIWWTP
discharge adversely affects fish health or community structure, indicating that this area continues
to provide a good fishing ground for all communities.

5.	Bacterial data indicate that water contact recreation is not adversely affected by the SIWWTP
discharge.

When considering the collective weight of evidence (using these five lines of evidence) for
potential risk to recreational activities, no evidence exists that the SIWWTP outfall is interfering
with recreational activities at or beyond the ZID.

In addition to disregarding the universe of evidence that the outfall has no adverse effects, EPA
also ignores its explicit language in the Permit that requires fish tissue analyses in order to
determine the threat to public health. The following is an excerpt from the Permit:

"The two fish species shall be somewhat sedentary (e.g., bridled triggerfish, taape, opelu, akule)
and representative offish caught by recreational and commercial fishermen near the Sand
Island ocean outfall. " (Emphasis added.)

Implicit in this language is the expectation that the annual fish tissue surveys would serve as a
real-world measure of whether fish caught near the outfall could pose unacceptable risk or
"threat" to fish consumers. However, in the 2007 TD, EPA ignores this powerful line of
evidence, that it required be gathered, and instead relies on perceived exceedances of WQS for
two pesticides in the SIWWTP effluent, one of which (dieldrin) almost certainly is not there and
the other of which (chlordane) has never exceeded the 2006 AWQC. As a result, EPA
inexplicably concludes that bioaccumulation of pesticides in fish may be still possible as a result
of the SIWWTP discharge and that, therefore, the discharge may not protect recreational fishing.
In so doing, EPA grasps for a technically indefensible conclusion in the face of all the evidence
collected under CCH's EPA-approved Section 301(h) monitoring program.

The evidence compels the opposite conclusion. Monitoring of fish tissue establishes that, with
respect to the organic chemicals of concern to EPA (chlordane and dieldrin), neither is detectable
in fish tissue at levels that pose unacceptable risk. These data lead to the conclusion that the
discharge does not result in harmful bioaccumulation. Moreover, the reported levels of dieldrin
in effluent are false positives, not exceedances of WQS, and chlordane levels do not exceed
levels determined by EPA to pose fish consumption risk. Therefore, no demonstrable impact on
recreational fishing exists. EPA's speculative conclusion to the contrary does not justify its

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arbitrary and unsupported tentative denial of CCH's waiver application. EPA should reconsider
the 2007 TD.

Response: This comment reiterates several points that have been made elsewhere in these
comments. Commenter's point number 1 here was made previously as comment C57. Point
number 2 here was made previously as part of comment C29. Point number 3 here was made in
comment C59. Point number 4 here was made in comment C50. Please see the responses to
these specific comments.

EPA agrees that as long as the UV disinfection system is operating properly, that water contact
recreation is not adversely impacted by the SIWWTP as the commenter noted in point 5 here.

EPA's conclusion that the proposed discharge would not protect recreational fishing is based on
the expected failure of the proposed discharge to meet water quality standards specifically
adopted by the state of Hawaii for two pesticides, dieldrin and chlordane, to protect against
carcinogenic effects and ensure that the fish caught by anglers in Hawaii's waters will be safe to
eat. The absence of detections of these pesticides in fish tissue sampling does not change the fact
that water quality standards have been exceeded. Water quality standards are set at protective
levels that prevent unacceptable levels of bioaccumulation. The degree of protection built into
the water quality standards is designed to ensure that adverse results will not exist in the
receiving water. Please also see response to comment C57, and also response to comment C55
regarding the commenter's proposed weight of evidence approach.

Monitoring Program

Comment C63: While EPA did not deny CCH's reapplication for a modified NPDES permit on
the basis of its monitoring program, EPA states in the 2007 TD:

"EPA's review has determined that the current monitoring program is not sufficient. For
example, the current monitoring program does not assess ZID stations. "

EPA's conclusion in the 2007 TD with regard to monitoring at the ZID contradicts its
conclusions in 1998 and the specific monitoring program EPA prescribed. In its Response to
Comments on the Permit (EPA Region IX and Hawaii State Department of Health, September
30, 1998), EPA elucidated its decision on the form of the monitoring program. CCH commented
that:

"The City noted that the proposed core monitoring program in the draft permit lacks
stations at the boundary of the zone of initial dilution (ZID) and zone of mixing (ZOM).
The City has requested statements in the permit to identify the monitoring stations that
will be usedfor determining compliance to ZID and ZOM limitations. "

In response, EPA stated that:

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"In the final permit, the EPA designed a monitoring program, with input from the
Permittee, to better elucidate the impacts of the effluent discharge on water quality
standards and recreational use. The core monitoring program in the final permit focuses
on a grid design that has broader spatial coverage instead of design centered tightly
around the outfall (outlined in the existing permit); this grid design allows for better
assessment of the gradients of conditions around the outfall and less reliance on
comparisons between outfall stations and only one or two control stations. This is critical
for an area like Mamala Bay, where the marine environment is impactedfrom a
multitude of sources. When an environment is influenced by a number of different
sources, finding suitable control stations can [be] difficult. The final permit redistributed
the Permittee's sampling effort from the existing permit and stations around the ZID in
the existing permit are relocated to better capture a wider spatial coverage. The final
permit's core monitoring program retains monitoring stations around the four corners of
the ZOM boundary; these same four stations shall also serve as the nominal ZID stations
(Part E.l.c). The EPA finds that four stations around the ZOM boundary are sufficient to
determining water quality standards compliance. To maintain monitoring of water
quality standards at the ZID boundary, the four ZOM stations shall serve as the nominal
ZID stations. Exceedances of standards at the ZOM boundary will automatically be
considered an exceedance at the ZID boundary. "

Thus, it is disingenuous for EPA now to complain that the current monitoring does not assess
ZID stations. Moreover, a review of the volume of data collected should not lead to the
conclusion that the monitoring program is inadequate. In fact, extensive data have been
collected from a variety of sources, including the Mamala Bay Study, indicating that the
SIWWTP discharge has no adverse effects on the marine environment or the human use thereof.

CCH recognized in its application for a Section 301(h) waiver that the monitoring program might
need to be adjusted over time. For example, CCH understood that modifications might prove
necessary in response to resolution of toxicity testing requirements and the outcome of the
Mamala Bay Study. CCH's cooperative and flexible relationship with EPA with regard to its
monitoring programs can be seen from the Permit itself (at Part E, page 29 of 30) that requires
CCH to engage in Regional Monitoring Activities, which incorporate a random monitoring site
selection process. This program also evaluates the effects of the SIWWTP discharge, defined in
the Permit as follows:

"The Permittee shall participate in a regional monitoring effort in Mamala Bay to
evaluate the effects of wastewater dischargedfrom the Sand Island WWTP and the
Honouliuli WWTP, and their effects relative to other sources of contaminants flowing
into Mamala Bay. The primary objective of the regional monitoring program is to assess
the spatial extent and magnitude of ecological disturbances within the Mamala Bay, and
to describe the relative conditions among different regions within the Bay. Monitoring
stations shall be selected randomly to ensure they are representative of conditions in the
study area.

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"The concept of the regional monitoring program for the Permittee is to use a
comparable level of effort, as required under the core monitoring program, to sample
more broadly in Mamala Bay. Some activities required under the core monitoring
program will be replaced with activities of comparable value under the regional
monitoring program. The regional monitoring plan will be designed to investigate
Mamala Bay between Diamond Head on the east and Barber's Point on the west. The
Permittee shall design a detailed plan for regional monitoring in Mamala Bay in
conjunction with the EPA and as much as possible other participating agencies, various
levels of government and private entities. The Permittee, the EPA and other participating
monitoring agencies and entities shall constitute the coordinating committee for the
Mamala Bay Regional Monitoring Program. In the event that such a committee is non-
functional, the Permittee shall work cooperatively on the regional monitoring plan with
the EPA. The Permittee with the EPA shall determine its portion of the regional plan. The
final monitoring plan must be approved by the EPA prior to its implementation. The
exact shoreline, recreational water, nearshore and offshore station locations required
under regional monitoring and to be completed under the Sand Island WWTP permit,
will be designated by either a coordinating committee or, if no committee is functional,
the EPA in coordination with the Permittee. The regional monitoring plan will also be
included and supported in a similar manner in the Honouliuli WWTP's NPDES
permit."

CCH worked cooperatively with EPA to define these requirements and fulfilled the
Regional Monitoring Activities in years 3 and 5 of the Permit, understanding that this effort was
part of a western regional effort. CCH suggested to EPA and EPA concurred in 2001 that EPA
could evaluate these Regional Monitoring Activities for inclusion in a future SIWWTP Section
301(h) monitoring program (as well as the Honouliuli permit) if the Regional Monitoring
approach proved to be a better monitoring activity. EPA has never responded to the efficacy of
the Regional Monitoring approach, despite its apparent intent to implement this approach as
stated in its letter to CCH in 2001 (EPA Region 9 [Alexis Strauss], June 14, 2001):

"However, because the RMP is designed to supplement and eventually replace the usual
core monitoring covered by both the Sand Island and Honouliuli permits at certain times
during a permit term, EPA would allow the substitution of the RMP for the summer 2001
sampling."

In the 2007 TD, EPA concludes:

"If EPA's final decision is to grant the variance and issue a renewed modified permit,
then EPA will work with the applicant to develop an appropriate monitoring program,
and will include revised requirements in the draft permit issued for public review. "

CCH appreciates EPA's stated intent to work with it to develop a modified monitoring program,
and CCH is willing to consider additional monitoring and studies. As evidenced by its
substantial undertaking with the Mamala Bay Study, CCH has consistently demonstrated its

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commitment to working with EPA to conduct the necessary monitoring to ensure the protection
of the marine environment, and will continue to do so.

Response: The commenter is correct that although EPA has now concluded that changes to the
monitoring program would be necessary if the 301(h) variance were renewed, EPA's concerns
with the monitoring program are not a basis for denial of the 301(h) application. As a
fundamental matter, Clean Water Act regulations implementing 301(h) variances require that all
water quality standards must be achieved at and beyond the zone of initial dilution (ZID).
(40CFR125.62(a)(i)). While EPA's intent in the 1998 permit was to redistribute these
monitoring stations to capture a wider spatial coverage, we now are of the opinion that in a
301(h)-modified permit, there should be monitoring performed at the ZID boundary to facilitate
analysis of compliance with water quality standards if a renewed variance is requested. That
said, CCH has not been adversely affected in EPA's analysis by submission of monitoring data
from the ZOM stations. Please see response to comment C4.1.

Also, conditions related to the discharge have changed since the last permit was issued. For
example, water quality criteria for bacteria now apply at the edge of the ZID, whereas they were
not applied in offshore waters in the existing permit. CCH is now disinfecting the discharge
from the Sand Island WWTP using a UV system, and monitoring for pathogen indicators at the
ZID boundary may be important to assess the effectiveness of the disinfection system.

EPA also has increased concerns with the toxicity of the Sand Island effluent. We are concerned
about the high level of toxicity observed in the effluent, and with the failure of CCH to identify
the pollutant or pollutants responsible for the toxicity. It is EPA's opinion that changes to the
monitoring program to require timely identification of the pollutant(s) responsible for the toxicity
are needed.

As EPA is denying the 301(h) variance, however, EPA will not be the permitting authority for
the next NPDES permit for the Sand Island WWTP. HDOH is now the permitting authority and
is responsible for issuing an NPDES permit that incorporates secondary treatment requirements
and an appropriate monitoring program. EPA encourages CCH to work cooperatively with
HDOH on the development of the monitoring program. EPA also intends to work with HDOH
and CCH in this process.

Comment C64: Further, CCH has hosted several training sessions on Data Quality Objective
(DQO) and Statistical Sampling. CCH, EPA, HDOH, and several private-sector organizations
attended the training. CCH understands that the DQO process is supported by EPA (e.g., EPA's
Data Quality Objectives and Statistical Design Support for Development of a Monitoring
Protocol for Recreational Waters [August 24, 1999]) as a new approach for regional water
monitoring. In addition, CCH and HDOH are investigating a new sampling approach (multi-
increment sampling, also known as Gy Sampling Theory). Unlike the random sampling
approach incorporated in the Regional Monitoring Activity of the Permit, the multi-increment
sampling appears to better represent the water quality of a region. The approach obtains several
subsamples in a designated region and analyzes the "composite" sample for the parameter(s) of

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interest. This approach removes the "hot spots" issue, addresses outliers, reduces the variability
of the data, and can easily incorporate statistical evaluations, without the random aspect of the
Regional Monitoring approach. Multi-increment sampling appears to be a significant
improvement over the current grab sample approach.

Response: This comment does not request any changes in EPA's decision. EPA will consider
CCH's views on monitoring approaches when we engage in future monitoring efforts.

Impact of Modified Discharge on Other Point and Nonpoint Sources

Comment C65: EPA states the following in the 2007 TD: "It does not appear that the
applicant's proposed discharge would result in any additional treatment requirements on any
other point or nonpoint source. [Section 301(h)(4); 40 CFR 125.64] "

CCH agrees with EPA that the discharge has not resulted in any additional pollution control on
any other point or nonpoint source.

Response: EPA agrees with this comment.

Toxics Control and Pretreatment

Comment C66: EPA agrees that CCH is in compliance with Criterion 6 (Toxics Control).

Response: EPA concluded that the applicant met the requirements of CWA section 301(h)(5),
(6) and (7).

Comment C67: EPA concludes that Criterion 6 (Urban Area Pretreatment Program) is satisfied.

Response: EPA concluded that the applicant met the requirements of CWA section 301(h)(5),
(6) and (7).

Comment C68: EPA concludes in the 2007 TD that CCH is in compliance with pretreatment
requirements as required by Section 301(h)(5), (6), (7); 40 CFR 125.65, 125.66, 125.67.

Response: EPA concluded that the applicant met the requirements of CWA section 301(h)(5),
(6) and (7).

Comment C69: EPA concludes in the 2007 TD that:

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"The applicant proposes no new or substantially increased discharges from the point source of
the pollutants to which the 301(h) variance will apply above those specified in the current
permit. [Section 301(h)(8); 40 CFR 125.67]"

EPA agrees that CCH is in compliance with this criterion.

Response: This statement is correct.

Miscellaneous comments

Comment C70: CCH will obtain appropriate concurrence with other applicable laws at the time
of the final decision.

Response: Comment noted. As the final decision is to deny the renewed variance, these
concurrences or determinations are not necessary at this time.

Comment C71: CCH will obtain appropriate concurrence from the State at the time of the final
decision.

Response: Comment noted. As the final decision is to deny the renewed variance, State
concurrence is not necessary at this time.

Comment C72: Congress enacted 301(h) in order to avoid the unnecessary cost of constructing
secondary treatment facilities by municipalities that can discharge to an active ocean
environment. In a 1981 decision in the case of the Natural Resources Defense Council v. U.S.
EPA, the District of Columbia Court of Appeals stated: "The purpose of section [301(h)] is to
permit some coastal municipal sewage treatment plants to avoid costs associated with secondary
treatment as long as environmental standards can be maintained. If a treatment plant can
discharge a pollutant and meet the criteria of section [301(h)] unnecessary expenditures may be
avoided." To proceed with a denial of the 301(h) application would be in direct contradiction to
the stated intent and purpose of Section 301(h) to avoid unnecessary costs where other projects
with greater environmental benefit can be achieved.

Response: Financial considerations are not included in the statutory criteria listed in section
301(h) of the CWA, and EPA cannot make secondary treatment variance decisions based on cost
considerations. In the case of the Sand Island facility, water quality standards are not being
maintained, and the statutory criteria in section 301(h) of the CWA are not being met. The
statute is clear that unless the specified criteria — which do not include cost considerations — are
met, a variance from secondary treatment may not be granted by EPA.

Neither the court decision cited by the commenter nor the legislative history of section 301(h)
suggests in any way that a 301(h) variance can be granted because of cost considerations, when

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the applicant fails to satisfy the specific statutory criteria. The preamble to EPA's implementing
regulations discusses the history of section 301(h): "... [A] number of municipalities ... argued
to both Congress and EPA that secondary treatment of municipal ocean discharges is not
necessary to protect the marine environment or to assure the attainment and maintenance of
water quality in ocean waters. ... [T]hese municipalities have maintained that they should be
exempted from the Act's secondary treatment requirement, and the associated capital,
maintenance, and operating costs. These municipalities also claimed that they had accumulated
sufficient evidence to demonstrate the scientific basis for exemptions from the secondary
treatment requirements. As a result of their testimony, Congress ... added section 301(h), which
allows a municipal marine discharger to present its case to EPA." See EPA 1979 Final Rule, 44
Federal Register page 34784 (June 15, 1979). Thus, while EPA agrees that Congress favored
elimination of unnecessary expenditures in general, this was not the overriding concern as to a
specific facility; rather, the key to obtaining a variance was presenting sufficient evidence to
demonstrate the scientific basis for an exemption for the specific facility. See also statement by
Sen. Muskie, p. 447 of Conference Report No. 95-830 accompanying H.R. 3199 (Dec.6, 1977).

Similarly, the Court of Appeals decision cited by the commenter clearly notes that the statutory
criteria in section 301(h) must be met in order for a variance to be granted (see quotation above
in comment). Additionally, elsewhere in the same case, the Court of Appeals describes the
purpose of section 301(h) as follows: "The purpose of section [301(h)] is to allow treatment
plants that can discharge into marine waters and meet certain environmental standards to
demonstrate those facts to the Agency and receive a permit [citations omitted]. Although fiscal
concerns are not paramount under section 301(h), Congress has determined to allow some
savings in sewage treatment through harmless marine discharges. The overriding purpose of the
Act is still the prevention of water pollution." NRDC v. EPA, 656 F. 2d 768 at 780.

Thus, while we do not disagree with the commenter that a motivation for enacting section 301(h)
was to avoid unnecessary costs, this does not mean that a particular facility must be granted a
variance because conversion to full secondary treatment would be expensive, nor that costs can
even be considered in EPA's decisions on whether or not to grant specific variances. Rather, the
Act is clear that a variance cannot be granted unless all the statutory criteria - which do not
include consideration of cost - are met.

Comment C73: The CWA involves a balancing of economic and environmental impacts, as
evidenced by EPA's 1997 guidance document "Combined Sewer Overflows - Guidance for
Financial Capability Assessment and Schedule Development." In analyzing CCH's situation,
local conditions are the primary factors in determining economic capability; financial capability
must be assessed holistically; and permittees' fiduciary responsibilities dictate that
environmental investments must yield the highest available returns per dollar of expenditure.
Investment in secondary treatment is economically insupportable given other demands on
Honolulu's limited financial resources.

Response: The EPA guidance document cited by the commenter does not address 301(h).
Rather, it addresses Combined Sewer Systems (CSS), which are present in the United States

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primarily in the Northeast and Great Lakes region. (There are two cities with CSS in EPA
Region 9, San Francisco, and Sacramento.) Unlike the Separate Sewer Systems used in
Honolulu and most U.S. cities, in CSS both storm water and sewage travel together in single
pipes to wastewater treatment plants. When heavy storm flows exceed the capacity of either the
collection system or treatment plant, CSS are designed to overflow to surface water. These
events are known as Combined Sewer Overflows (CSOs). In order to minimize the impacts of
CSOs, in 1994, EPA developed a national CSO Control Policy. This Policy includes provisions
which allow for the phasing in of CSO controls in consideration of the financial condition of
municipalities operating the CSS. To assist with implementation of this Policy, EPA developed
the 1997 guidance cited by CCH. The cited guidance is beneficial for establishing schedules for
how cities control CSOs.

The cited EPA guidance does not consider whether or not it is appropriate to grant a variance
from secondary treatment under section 301(h) and is not relevant to the variance decisions for
the Sand Island treatment plant. However, EPA does believe that the financial model in the EPA
guidance could be a relevant tool in determining the schedule under which CCH makes
wastewater infrastructure improvements to both its collection system and its treatment plants.
Similarly, the factors such as local conditions could be relevant to schedule development, but not
regarding the threshold question of whether a variance under 301(h) should be granted.

Comment C74: CCH's already-approved rate increase programs will have acute impacts on
Oahu residents, and further rate or tax increases to support financing of secondary treatment are
untenable. Oahu residents face some of the highest costs for shelter in the world; comparably
high costs for other cost-of-living categories such as groceries, utilities, and transportation;
unprecedented rate increases for water and wastewater; and high local and state tax burdens.
Hawaii had the highest increase among all states in poverty rates from 1990 to 2000, although
the poverty rate has been relatively stable since. In order for Hawaii to compete in the global
market, environmental investments must yield tangible enhancements to Hawaii's
competitiveness. Limited public resources must be directed towards investments yielding the
highest returns and promoting the economic well-being of all Hawaii residents. Priority should
be given to investment in sewer collection system improvements and transportation
infrastructure, rather than to no-return secondary treatment at Honolulu's major wastewater
treatment plants, which significantly increases energy costs and carbon emissions, produces
excess solid wastes that have to be disposed of on land or by incineration, and provides no
documented benefit to the marine environment or its users.

Response: See responses to comments C72 and C77. The factors discussed in this comment do
not go to the statutory criteria for granting a 301(h) variance. However, although these points are
not relevant to the decisions made pursuant to section 301(h) of the CWA, they do provide
information that is relevant for determining schedules for future treatment plant upgrades.

During the development of schedules for system upgrades, it is EPA's intention to consider the
financial capability of CCH, and the relative priorities for the various wastewater infrastructure
challenges CCH faces. The statements made in the comments regarding poverty rates suggest

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that CCH may want to consider developing fee structures which take into account income
inequalities as other cities have done.

In response to the comments regarding energy costs, carbon emissions, excess solid wastes, and
benefit to the marine environment or its users, please see response to comment P44.

Comment C75: Financial impacts must be considered holistically. One must consider the
potential costs of secondary treatment in the context of CCH's other environmental investments,
particular water quality. Additionally, there are EPA-mandated stormwater management
measures and recommended asset management initiatives. These costs will impose significant
financial, economic and social risks, which diminish CCH's fundamental capability to finance
water quality investments, especially secondary treatment. These risks are generally treated as
"additional considerations" in EPA guidance, but they represent important potential impacts on
Oahu residents and businesses.

Response: See response to comment C72. Secondary treatment variance decisions may not be
based on financial considerations, as such considerations are not included in the statutory criteria
listed in section 301(h) of the CWA. The statute is clear that unless the specified criteria —
which do not include cost considerations - are met, a variance from secondary treatment may not
be granted by EPA. However, EPA considers it appropriate to take into consideration
information such as that presented in this comment in determining the schedule under which
CCH makes wastewater infrastructure improvements to both its collection system and its
treatment plants.

Comment C76: Fixed schedules for water quality investments should be assigned only to the
highest priority, immediate projects, because later investments are subject to market dynamics,
such as increasing construction costs. Changes in construction costs have been unpredictable.
CCH's total water quality investments will impose significant rate increases, could lower
demand and thus total revenues, and could impact CCH's credit rating. One consideration in
municipal credit analysis is plant and line maintenance; CCH's capital program, even without
secondary treatment costs, will strain the extent to which the program is "manageable and
affordable." CCH is now focusing, in parallel with its expenditures on major repairs, on the
plant and maintenance that will enable it to reduce major repair needs in the future. Beyond
appeasing regulatory bodies' focus on treatment processes, and at the risk of diverting attention
and resources from more critical collection system improvements, there is little to commend
secondary treatment from a municipal credit perspective.

Response: See responses to comments C72 and C79. The factors discussed in this comment do
not go to the statutory criteria for granting a 301(h) variance. However, EPA considers it
appropriate to consider information of the type included in this comment in determining the
schedule under which CCH makes wastewater infrastructure improvements to both its collection
system and its treatment plants.

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Comment C77: Utility rate increases may have a dampening effect on local economic vitality.
Honolulu residents already are affected by shelter, cost of living, and tax costs that are among the
highest in the country. Wastewater rate increases will exacerbate this situation and compromise
individual residents' financial capabilities. Requiring extraordinary amounts of construction
work to be executed within a limited time frame will distort Oahu's resident engineering and
contractor market.

Response: See responses to comments C72 and C79. The factors discussed in this comment do
not go to the statutory criteria for granting a 301(h) variance. However, EPA considers it
appropriate to consider information of the type included in this comment in determining the
schedule under which CCH makes wastewater infrastructure improvements to both its collection
system and its treatment plants.

Comment C78: Rate increases will disproportionately affect low-income residents. Upgrading
to secondary treatment will exacerbate CCH's financing challenges, and the resulting impacts on
low-income residents should be recognized. These risks are not addressed in EPA's Financial
Capability Assessment methodology.

Response: As a fundamental matter, discussed in response to comment C72, secondary
treatment variance decisions may not be based on cost considerations. The statute is clear that
unless the specified criteria, which do not include cost considerations, are met, a variance from
secondary treatment may not be granted by EPA.

EPA is aware that sewage fee increases may potentially have a disproportionate effect on
Honolulu's low income residents. Other municipalities have developed fee structures addressing
this potential inequity. For example, the City of Atlanta faces huge expenses repairing its
drinking water and wastewater infrastructure. Recognizing the impacts resulting rate increases
would have on portions of its population, Atlanta established discount programs for low income
senior citizens, and financial assistance to those having difficulty paying their bills. EPA urges
CCH to follow up on its stated intent to consider options to address low-income affordability
issues, and offers to facilitate communications with other municipalities that are successfully
addressing this challenge.

The comment makes reference to EPA's Financial Capability Assessment Guidance, implying
that this guidance is relevant to this 301(h) variance, and that it should take into account impacts
on low income residents. As noted in response to comment C73, the referenced EPA Guidance
is a tool for considering the financial condition of a municipality when sewer system upgrades
are needed. The financial condition assessed is that of the municipality as a whole, not the
financial status of individual residents. This guidance does not consider whether or not it is
appropriate to grant a variance from secondary treatment under section 301(h), and is not
relevant to the variance decision for the Sand Island treatment plant. However, EPA does
believe that the Cost and Financial Capability guidance could be a relevant tool in determining
the schedule under which CCH makes wastewater infrastructure improvements to both its
collection system and its treatment plants.

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Comment C79: Secondary treatment must be assigned a lower priority among CCH's water
quality investment objectives as other major components of CCH's water quality investment
program have substantially higher water quality benefits. Full secondary treatment is infeasible
through the 301(h) waiver renewal period. Other options may represent a higher-return water
quality investment.

Response: See responses to comments C72 and C75. The factors discussed in this comment do
not go to the statutory criteria for granting a 301(h) variance. However, although these points are
not relevant to the decisions made pursuant to section 301(h) of the CWA, they do provide
information that is relevant for determining schedules for future treatment plant upgrades.

During the development of schedules for system upgrades, it is EPA's intention to consider the
financial capability of CCH, and the relative priorities for the various wastewater infrastructure
challenges CCH faces.

Comment C80: Full secondary treatment represents an untenable water quality investment,
both because it will yield limited (if any) environmental benefit and because of other claims on
CCH resources. Honolulu's current administration has demonstrated an extraordinary financial
commitment to improved water quality, including approving a 4-year rate increase plan, which
does not contemplate financing of secondary treatment. This will result in monthly residential
bills that will exceed EPA's threshold of 2 percent of median household income by 2014, and
will place Honolulu's wastewater rates among the highest in the US. The fact that residential
bills will exceed 2 percent of MHI within the next 5 years suggests that, under EPA's Financial
Capability Assessment guidance, a 20-year capital program implementation schedule (without
inclusion of secondary treatment) is warranted.

Response: EPA does not disagree that Honolulu's current administration has taken valuable
steps forward towards addressing CCH's wastewater management challenges. However, the
demonstration of a commitment to address other priorities cannot be used to justify a variance
under section 301(h). It is EPA's intention to consider all wastewater management priorities in
determining schedules future treatment plant upgrades.

Regarding the contention that full secondary treatment will yield limited environmental benefit,
please see response to comment P50.

Comment C81: The fundamental challenge to CCH, EPA and community stakeholders is to
determine the appropriate selection and pace of investments that maximize environmental
benefits within the financial capabilities and logistical constraints that prevail in Honolulu. CCH
does not have unlimited financial capacity to fund improvements; choices are required. A
holistic perspective is required for determining the priorities and schedule for water quality
improvements. Important financial and project delivery realities must be considered in defining
requirements collectively. There are practical limitations on the extent to which such
investments can be realistically and cost-effectively delivered, given prevailing construction
market conditions, physical constraints, and potential community impacts.

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Sand Island's primary discharge does not harm the marine environment and meets all 301(h)
criteria. To proceed with a denial of the 301(h) application would be in direct contradiction to
the stated intent and purpose of Section 301(h) to avoid unnecessary costs were other projects
with greater environmental benefit can be achieved.

The enormous cost to design, build and operate a secondary treatment facility at Sand Island is
unjustified. It would cost approximately $800 million, and operating costs would more than
double. Secondary treatment has a large energy demand. The carbon emissions resulting from
the additional energy requirements would be equivalent to adding 6,000 automobiles per day.
Secondary treatment is an unnecessary additional burden on the impacts associated with climate
change. At a time when CCH has committed to a major rehabilitation program to repair, replace,
and otherwise upgrade its conveyance system to provide direct and significant environmental and
public health benefits, the cost of converting Sand Island to secondary treatment is unnecessary.

In light of the clear intent of Congress, EPA must include in its evaluation the considerations of
cost, necessary, and financial capability of CCH to proceed with secondary treatment at Sand
Island. Any consideration of secondary treatment must be deferred given the CCH commitment
of available resources (within its financial capabilities) to other, higher priority, water quality
investments.

Response: Regarding cost considerations in general, please see responses to comments C72.
EPA disagrees that the Sand Island discharge meets all 301(h) criteria, as discussed in responses
to specific comments regarding the specific criteria. Regarding the comment that Sand Island's
primary discharge does not harm the marine environment, see response to comment P46. With
regard to carbon emissions and energy demands, see response to comment P44.

As discussed in the referenced responses, considerations such as costs for constructing and
operating secondary treatment facilities, the energy demands associated with secondary
treatment, and carbon emissions resulting from this estimated energy production are not relevant
to the determination of whether a variance may be granted. Nevertheless, it is important to note
that EPA does not necessarily agree with the cost or emission estimates cited in CCH's
comments. These are matters which must be reviewed in detail during the design of treatment
plant upgrades. As an example of a point that needs further evaluation, many modern
wastewater treatment plants utilize gases created during secondary treatment to general
electricity, thus reducing operating costs and energy demand at wastewater treatment plants. It
appears that such efficiencies have not been factored into CCH's estimates. Additionally, the
energy costs and carbon emissions associated with the electricity demands for UV disinfection
will be decreased when this disinfection is used on secondary-treated wastewater. EPA looks
forward to working with CCH to ensure that treatment plant upgrades are made in a manner that
takes advantage of state-of-the-art cost and energy efficiencies used throughout the U.S.

Comment C82: The negative 2007 TD is unjustified in light of the data and scientific evidence;
contrary to the permit; contrary, without justification, to EPA's findings in the 1998 TD; contrary

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to EPA's current guidance and technical support documents; contrary to public policy; not
supported by the administrative record; arbitrary and capricious; speculative; and conclusory.

Response: EPA disagrees. This list of allegations is CCH's conclusion at the end of its
comments on the Sand Island TDD. Where CCH has provided specific comments with
articulated rationale for its comments, responses are provided elsewhere in this response to
comments document. EPA based its tentative decision, and is basing its final decision, on the
information provided in CCH's application for a renewed permit for the Sand Island facility in
consideration of the 301(h) criteria. All of EPA's findings are fully supported in the
administrative record.

REFERENCES

City and County of Honolulu. 2003. Water Quality Laboratory Biology Unit T. gratilla Sperm
Fertilization Toxicity Test, SOP#860, Rev.#l, Dated 4/23/03.

HDOH. 1989. Environmental Protection and Health Services Division, Environmental Planning
Office, Honolulu, Hawaii. April 1989.

USEPA. 1991. Technical Support Document for Water-Quality Based Toxics Control.
EPA/505/2-90/001.

USEPA. 1995. Short Term Methods for Estimating the Chronic Toxicity of Effluents and
Receiving Waters to West Coast Marine and Estuarine Organisms. EPA/600/R-95/136.

USEPA. 2000. Understanding and Accounting for Method Variability in Whole Effluent
Toxicity Application Under the National Pollutant Discharge Elimination System Program,
Denton DL, Fox J, Fulk FA, Greenwald K, Narvaez M, Norberg-King TJ, Phillips L, editors.
Office of Water. Washington, DC. EPA/833/R-00/003.

USEPA. 2001. Final report: Interlaboratory Variability Study of EPA Short-term Chronic and
Acute Whole Effluent Toxicity Test Methods, Volumes 1 and 2. Office of Water. Washington,
DC. EPA/821/B-01/004 and EPA/821/B-01/005.

USEPA. 2002a. Short Term Methods for Estimating the Chronic Toxicity of Effluents and
Receiving Waters to Marine and Estuarine Organisms. EPA/82l/R-02/014.

USEPA. 2002b. Guidelines Establishing Test Procedures for the Analysis of Pollutants;

Whole Effluent Toxicity Test Methods; Final Rule. 67 Fed. Reg. 69952, 69955).

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