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Comments on Draft Modification of Charles Town Sewer

WV0022349

paul burke, box 1320, shepherdstown wv 25443

Contents

Introduction

Antidegradation Determinations Needed

Bacteria: Antidegradation Determination Needed

Bacteria: Need Limits Calculated from what Conventional Technology Actually Achieves

Turbidity: Needs Lower of Technology-based or Water Quality-based Limits

Turbidity: Needs Antidegradation Determination

Turbidity: Needs Continuous Measurement

Dissolved Oxygen, Ammonia, TSS and Lead: Need Antidegradation Determination

Metals: Need Antidegradation Determination

Influent: Need Limits on Toxic Commercial Inflows, like Photographic Processing

Testing Needs to Cover More Days and Times

Collection System: Description Needs Updating; Leaks Need Monitoring and Reporting

Leak Reporting: Needs Clarification and Local Distribution

Overflows: Need to Be Handled and Need Description in Permit

Zones of Mixing and Dilution: Need Establishment, and Diffusers to Create Rapid Mixing

Fact Sheet: Needs to Be Re-issued with Correct Data, Calculations, Citations and Legal Questions

Attachments

Introduction

The comments below highlight the need to (a) follow specific anti-degradation rules, (b) limit and monitor turbidity and collection pipe leaks, (c) limit toxic influents, (d) diffuse the effluent, and (e) expand the effluent testing program and the fact sheet.

It is worth emphasizing that this sewer plant discharges into a small trout stream, surrounded by houses, children, adults, and then into the Shenandoah River. This is an extremely beautiful, extremely historic part of West Virginia, and a major part of our tourism business. DEP needs to protect all parts of our environment, including jewels like this one. Each aspect of this permit can threaten these resources, and needs the most careful review.

The email notice to Area lists said the comment period closes 11/8/04.

Antidegradation Determinations Needed

Degradation rules apply to this permit action. This requirement is acknowledged in item 13 of DEP's Fact Sheet for this permit,

ANTIDEGRADATION... The permit writer believes that the terms and conditions proposed in this draft modification will maintain and protect said waters.

The antidegradation requirement is formally expressed in 60CSR5-5.6 (emphasis added),

Degradation for Tier 2 shall be deemed significant if the activity results in a reduction in the water segment's available assimilative capacity (the difference between the baseline water quality and the water quality criteria) of ten percent or more... Significant degradation will be determined on a parameter-by-parameter basis for each parameter of concern that might be affected by the regulated activity... expanded activities determined to be significant by the agency shall be subject to the Tier 2 review requirements

which implements state law 22-11-7b(a),

The director of the bureau of the environment shall establish the antidegradation implementation procedures as required by 40 C.F.R. 131.12(a) which apply to regulated activities that have the potential to affect water quality.

The Federal regulation cited says,

quality shall be maintained and protected

and the federal district court said in OVEC et al. v. Horinko et al., 279 F. Supp. 2d 732 (SD. W. Va. 2003),

both the plaintiffs and the EPA agree that a new or expanded discharge from publicly owned wastewater treatment plants cannot be exempted from Tier 2 review if there is a net increase in any individual pollutant parameter.

While there are exemptions in 60CSR5-5.6.c, no exemptions have been announced in this modification, and the federal court ruled that the 5.6.c exemptions are not allowed by federal regulations anyway (findings 3 and 6).

Counts of macro-invertebrates by the Jefferson County Watersheds Coalition, in conformity with DEP's Save Our Streams program, show the stream is already harmed downstream of the treatment plant: there are reduced populations and variety of indicator species downstream. This harm must not become worse.

Bacteria: Antidegradation Determination Needed

The existing permit allows fecal coliform bacteria at an average of 200 colonies per 100 milliliters for 1.2 million gallons per day. This level is 9.1 billion colonies per day. The plant has actually been averaging 3.6 colonies per 100 ml, or 0.14 billion colonies per day (April-August 2004, even including August's large permit violation). The draft permit allows 13.2 billion colonies per day, which is definitely degradation.

The federal court ruled (finding 9) that the proposed concentrations of fecal coliform, 200 average and 400 maximum, cannot necessarily be ruled "insignificant", since there was no evidence to show their effect was insignificant. There is still no evidence.

These concentrations are in fact significant. They cause eight gastrointestinal illnesses per thousand people exposed. Besides gastrointestinal illnesses, the proposed fecal coliform levels cause eye, ear, nose, and throat infections at rates which EPA does not measure (pages 4, 9 in EPA, Ambient Water Quality Criteria for Bacteria - 1986 www.epa.gov/waterscience/beaches/1986crit.pdf and page 2 in EPA Implementation Guidance for Ambient Water Quality Criteria for Bacteria May 2002 Draft www.epa.gov/ost/standards/bacteria/bacteria.pdf).

Bacteria need antidegradation determination. Charles Town and DEP need to measure the bacteria level in Evitts Run, determine the assimilative capacity, and set permit limits which use no more than 10% of this capacity. Charles Town and DEP have known since May the discharge would be in Evitts Run, so baseline monitoring could have been finished by now.

The following table shows alternate hypothetical values of baseline bacteria, and resulting effluent limits. The calculations compare the stream (column A) to the state criterion (col. B), take 10% of the difference (cols. C+D), and allow the stream to degrade by that much (col. E).

The last column calculates the concentration that can be allowed in the effluent, so that it will degrade the stream by the maximum allowable amount. This last calculation depends on the relative flows of the stream and effluent during the driest week per decade (7Q10). These flows are shown at the bottom of the table.

Fecal Coliform Bacteria

(average number of colony-forming units per 100 milliliters)

A

B

C

D

E

F

If the Stream Has (baseline water quality)

Criterion

Difference

10% of Difference

Allowable Effluent + Stream

Effluent, to Give Allowable Mix

0

200

200

20

20

39

50

200

150

15

65

79

100

200

100

10

110

119

200

200

0

0

200

200



Flows in Stream and Effluent (cubic feet/second)

Stream Flow

 

Effluent + Stream

Effluent Flow 1.75 mgd

2.53

7Q10 flows

5.24

2.71



The bacteria limits in column F show what may be needed to comply with antidegradation rules.

DEP is required by Federal regulations and its own state rules not to allow bacteria from Charles Town to degrade Evitts Run. DEP's job is not to enable or obstruct house construction, or to look at financial costs to the state or city. DEP's job is to establish permit limits which protect the environment from degradation.

Bacteria: Need Limits Calculated from what Conventional Technology Actually Achieves

Allyn Turner's letter to me of 8/30/04 said,

Permit limitations are based on the fact that appropriate technology is available to meet levels of 200/100 ml as a monthly geometric mean and 400/100 ml as a daily maximum letter.

In fact well-run wastewater treatment plants generally discharge bacteria in single digits per 100 milliliters, not 200 or 400. Single digits are achievable by standard conventional technology, which federal and state law envisage for treatment plants to attain. The state needs to review its existing records on discharges of existing treatment plants and establish technology-based limits from this review, which will be more stringent than the 200 and 400 currently used.

Turbidity: Needs Lower of Technology-based or Water Quality-based Limits

West Virginia has narrative and numerical water quality criteria for turbidity (46CSR1-3.2.a, 3.2.f and 8.32, emphasis added),

Narrative Criteria

3.2. No sewage, industrial wastes or other wastes present in any of the waters of the state shall cause therein or materially contribute to any of the following conditions thereof...

3.2.a. Distinctly visible floating or settleable solids, suspended solids...

3.2.f. Distinctly visible color

Numerical Criteria

8.32. No point or non-point source to West Virginia's waters shall contribute a net load of suspended matter such that the turbidity exceeds 10 NTU's over background turbidity when the background is 50 NTU or less, or have more than a 10% increase in turbidity (plus 10 NTU minimum) when the background turbidity is more than 50 NTUs.

West Virginia rules require that when there is a water quality standard such as the limit on turbidity, the permit needs to enforce it (47CSR10-6.3),

Each permit shall include conditions meeting the following requirements when applicable...

6.3.d. Any more stringent requirements necessary to achieve water quality standards

These state rules implement even more specific federal rules (40CFR 122.44(d)(1), emphasis added),

(i) Limitations must control all pollutants or pollutant parameters (either conventional, nonconventional, or toxic pollutants) which the Director determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality.

(ii) ... the permitting authority shall use procedures which account for existing controls on point and nonpoint sources of pollution, the variability of the pollutant ...

(iii) ... the permit must contain effluent limits for that pollutant.

The permit needs to limit turbidity, because sewage effluent has a reasonable potential to add turbidity to Evitts Run, beyond water quality criteria.

There are no records of turbidity released by Charles Town, but there are records of total suspended solids (TSS). TSS gives a useful indicator that turbidity is likely to reach problem levels. The following table shows that turbidity readings average 30% of total suspended solids (TSS) in eight measurements in West Virginia.

Relationship of Turbidity and Suspended Solids

from Exhibit 1-U in Appeal 02-31-EQB, Burke and Stewards of the Potomac Highlands v. DEP

Location

NTU/TSS

Turbidity (NTU)

Total Suspended Solids (TSS parts per million)

WV Average

0.30

 

 

West Virginia

Cacapon Institute

0.28

19.7

70

 

 

 

0.40

28

70

 

 

 

0.21

8.2

40

 

 

 

0.22

8.9

40

 

 

 

0.32

12.8

40

 

 

 

 

 

0.31

12.5

40

 

 

 

 

 

0.31

14.8

48

 

 

 

 

 

0.32

15.5

48

 

Arkansas

NTU=1.6+1.248*TSS

1.74

5.62

3.22

 

 

 

1.30

39.04

30

 

 

 

1.27

76.48

60

 

 

 

 

 

1.26

159.47

126.5

 

Bureau of Reclamation

NTU= -3.0294+.3201*TSS

0.42

12.63

30

 

 

 

0.37

22.24

60

 

 

 

 

0.23

29.00

126.5

 

Washington State

0.31

1.1

3.6

 

 

 

0.42

2.4

5.7

 

 

 

 

1.11

22

19.8

 

Oregon

0.39

30

76

 

 

 

0.50

30

60

 

 

 

0.30

30

99

 

 

 

0.38

30

80

 

 

 

0.35

30

86

 

 

 

0.43

30

70

 

 

 

0.42

30

72

 

 

 

0.27

30

110

 

 

 

 

 

0.27

30

110

 

 

 

 

 

0.38

30

80

 

 

 

 

 

0.38

30

80

 

 

 

 

 

0.38

30

80

 

 

 

 

 

0.38

30

80

 

 

 

 

 

0.39

30

77

 

Overall Average

0.50

 

 



As recently as November 2002, Charles Town discharged TSS of 126.5 parts per million (ppm). Based on the WV average ratio of .30 for NTU/TSS shown above, TSS of 126.5 ppm would have generated turbidity of 38 NTU, which would violate numerical water quality standards. Turbidity at 38 NTU also has a "distinctly visible color," so it violates narrative water quality standards.

Charles Town has also discharged high levels of TSS on other occasions. Furthermore the Charles Town measurements of TSS are composite samples averaged over a 24-hour period (permit condition C.18), while turbidity standards are instantaneous. The average TSS in the composite may hide many higher peaks in turbidity.

The permit needs numerical limits for turbidity, because there are water quality standards for turbidity, and a reasonable potential for them to be violated, as shown above.

EPA's Operation of Wastewater Treatment Plants (3rd edition 1991), volume 2 pages 15-16 says turbidity should be recorded daily, and also says that effluent is typically in the range of 1 to 3 NTU, so it is feasible for Charles Town to meet appropriate limits, even if they have not in the past. The technology-based limit would be 3 NTU, based on EPA's statement of what is typical. The water quality-based limit would need to be calculated.

Turbidity: Needs Antidegradation Determination

The permit limit for turbidity also needs to have anti-degradation determination. The same rules cited for bacteria also apply to turbidity (60CSR5-5.6, emphasis added),

Degradation for Tier 2 shall be deemed significant if the activity results in a reduction in the water segment's available assimilative capacity (the difference between the baseline water quality and the water quality criteria) of ten percent or more..."

This rule defines assimilative capacity, and the definition works as well for turbidity as it does for other pollutants. The numerical water quality criteria for turbidity (46CSR1-8.32) are,

No point or non-point source to West Virginia's waters shall contribute a net load of suspended matter such that the turbidity exceeds 10 NTU's over background turbidity when the background is 50 NTU or less, or have more than a 10% increase in turbidity (plus 10 NTU minimum) when the background turbidity is more than 50 NTUs.

The "water quality criteria" actually vary for turbidity, based on background turbidity level. Such variation is not unique however; other criteria also vary, based on temperature or hardness. The baseline monitoring would identify the background turbidity level, from which the water quality criteria can be calculated. Then the assimilative capacity is 10% of the difference.

These calculations are shown in the following table, which is similar to the table above on bacteria. The columns of this table compare the stream (column A) to the state criterion (col. B), take 10% of the difference (cols. C+D), and allow the stream to degrade by that much (col. E). The last column calculates the concentration that can be allowed in the effluent, so that it will degrade the stream by the maximum allowable amount. This last calculation depends on the relative flows of the stream and effluent during the driest week per decade (7Q10). These flows are shown at the bottom of the table.

Turbidity

(Nephelometric Turbidity Units, NTU)

A

B

C

D

E

F

If the Stream has

Criterion

Difference

10% of Difference

Allowable Effluent + Stream

Effluent, to Give Allowable Mix

0

10

10

1

1

2

12.5

22.5

10

1

13.5

14

25

35

10

1

26

27

50

60

10

1

51

52



Flows in Stream and Effluent (cubic feet/second)

Stream Flow

 

Effluent + Stream

Effluent Flow

1.75 mgd

2.53

7Q10 flows

5.24

2.71



Turbidity: Needs Continuous Measurement

Turbidity, like pH, flow, and temperature, can be measured continuously by commercially available meters, and it needs to be, for four reasons. (1) Continuous measurement is the most effective way to ensure compliance with water quality standards. (2) A continuous monitoring device will save scarce staff time, compared to periodic hand monitoring. (3) Turbidity is a new parameter, and both staff and DEP need continuous data in order to become familiar with how to control turbidity. (4) Continuous readings of turbidity can serve as an instant warning indicator for other pollutants. Their problems would often accompany problems in turbidity. Not only will turbidity cause bacteria violations by blocking ultraviolet light, but other pollutants will cause turbidity.

Evitts Run needs to be closed to protect the public when health hazards exist. In extreme cases even the Shenandoah River could be affected and would need warnings or closing. The only way to know when health hazards exist in time to protect the public is to have continuous measurement of parameters correlated with health hazards. Temperature, pH and dissolved oxygen can also be measured continuously; however they will generally be within allowable parameters even when there is a health hazard, while turbidity would more often raise an early warning.

Dissolved Oxygen, Ammonia, TSS and Lead: Need Antidegradation Determination

The draft permit would allow large increases in pollutant loads compared with current pollutant loads.

The permit writer seems to believe that lowering permit limits in proportion to increased flows will maintain water quality. Not so. That approach treats the sewer plant as if it is constantly discharging pollutants at the average limits now permitted. In those conditions, a decrease in limits, proportionate to the increase in flow, would indeed maintain water quality.

However the average discharge is, and was always intended to be, cleaner than the permit limit While there have been many permit violations in the past two years, no one claims that the average discharges were at or even near the permit limits for these pollutants. Generally the averages are much cleaner, and these actual accomplishment are the baseline for anti-degradation determination, according to the regulations (60CSR5-5.6),

available assimilative capacity (the difference between the baseline water quality and the water quality criteria)

The definition of degradation depends on actual baseline water quality, not on some higher level of pollution which would be present if the plant were constantly at the limit of its permit on each pollutant. The following table shows relevant averages. While these do not give values for Evitts Run, they show that it is not generally receiving discharges at the level assumed by the permit writer.

Charles Town Discharges

(Average of April - August 2004)

 

Discharge Concentrations

Discharge Totals
(pounds/day, except
bacteria in billions/day)

 

Permitted

Actual

Draft

Permitted

1.2mgd

Actual* 1.05mgd

Draft 1.75mgd

Bacteria

200

3.6

200

9.09

0.14

13.25

Ammonia

5.9

1.9

3.37

59

19

49

BOD

30

5.58

20.57

300*

56

300

TSS

30

3.22

30

300

32

300

Lead

.02000

.00068

.02000

0.2*

0.007

0.3*

* Starred monthly totals are calculated from concentration and total flow.



The fact sheet for this permit also shows average concentrations. While they are wrong, as discussed in comments on the fact sheet below, nevertheless they show the average discharge is much cleaner than the current limits. The draft permit improperly proposes limits which would allow substantial degradation of Evitts Run, compared to the current discharges. Antidegradation is a stern taskmaster, since it supports the national goal of eliminating pollution, not just continuing with old limits (33USC 1251(a)(1)),

it is the national goal that the discharge of pollutants into the navigable waters be eliminated

The draft permit takes a shortcut to an antidegradation determination, using simply the permit writer's judgment that water quality will be maintained. That judgment is not based on required baseline studies or any evidence. The federal court has already said (footnote 26),

Moreover, 131.12(a)(2) requires Tier 2 review in the appropriate circumstances, not "Tier 2-type review."

There is another interpretation of the permit writer's focus on reducing permit levels in proportion to flows, rather than doing formal degradation calculations. If average discharges are a fixed fraction of permit limits, then reducing permit limits would reduce discharges. However that is not the regulatory structure. Permittees are allowed to pollute right up to the permit limits, so permit limits themselves must comply with the rules. The permit does allow occasional upsets and excursions, but the limits must follow regulations and not be set high in the hope that permittees stay far below them.

Metals: Need Antidegradation Determination

All the metals tested previously need to be evaluated for degradation under the new higher flows. The evaluation can use the data collected previously under condition C.12, and that condition can now be dropped.

Influent: Need Limits on Toxic Commercial Inflows, like Photographic Processing

Shepherdstown permit WV0024775 has a condition C.20 limiting the pollution from a photo processing lab. Charles Town needs a similar condition, since there are photo processing labs contributing to the sewer system. This is needed now, since part of the justification for this modification is to cure treatment failures. Charles Town has blamed treatment failure on slugs of influent which harm the ammonia-handling organisms (4/13/04 letter from Furr to DEP-WWM),

We were hit with a slug of something causing our ammonia to sky rocket.

The Public Service Commission says this is a repeated pattern (page 4 of 9/3/04 memo from Lengyel/Weimer to Robertson in case 04-0095-S-CN),

In addition, a foreign substance has entered the basins on several occasions which killed a majority of the bacteria necessary for treatment of the influent BOD materials.

Photo processing labs could provide such harmful chemicals, and they cannot continue unregulated. The lack of attention to photo labs suggests that Charles Town's customers need to be reviewed more generally against 40 CFR Subchapter N. This is required by condition C.9 and may not have been done.

Testing Needs to Cover More Days and Times

Testing is unrepresentative in this permit. State rules require (47CSR10-5.10.b),

Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

Permit Appendix A III.1 repeats this requirement. Charles Town's expert witness, a former DEP expert, testified under oath to the PSC that Charles Town's tests are not representative of the entire "monitored activity" (pages 189, 191 of 8/24/04 transcript in PSC case 04-0095-S-CN),

Charles Town Attorney: ...it was suggested that a sample that a sample [sic] that occurs --- a sample taken once a week might be representative of more than that day. Do you have an opinion in that regard?

Charles Town Expert Dr. Eli McCoy: Typically, that sample is representative of what passed through that sampling device that particular day. So in my opinion, it's representative of that day...

Paul Burke: And so if you say, it always, the sample on one day represents only that day, what's the purpose? What do we know then about the bacteria on the next day?

Charles Town Expert Dr. Eli McCoy: You really don't.

Considering that water quality standards need to be met every day, that samples must be representative of all treatment at the plant, and that current testing only represents the time of the test, then testing needs to be done every day.

Certainly a testing program which always omits weekends is statistically unreliable. In our tourist economy, and actually in any economy, weekend use is distinctly different from weekday use. Dr. McCoy is quite correct that testing on Wednesdays says nothing about pollution on Sundays. Charles Town has consistently had an unrepresentative testing program, by any statistical standard and by its own testimony, and needs to be ordered to improve.

Charles Town is also allowed to pick grab samples for some parameters, with no limit on time of day. They need a sampling protocol to systematically represent all times of day as well as all days of the week.

EPA's Operation of Wastewater Treatment Plants (mentioned above), volume 2, page 221, says that a study can determine times of day which are representative of average conditions. However that time of day is then not representative of maximum values, and it needs regular study to see if it even remains representative of average values.

DEP has provided no evidence why one test per week is adequate, and Charles Town has provided evidence that it is inadequate, so DEP needs to improve the testing program or the evidence.

Collection System: Description Needs Updating; Leaks Need Monitoring and Reporting

The permit covers the collection system as well as the treatment plant. The Fact Sheet says there will be new customers, and DEP needs to add their manholes and any other significant features to the text on page 1 of the permit.

Collection pipes leak raw sewage, which violates pollution rules. Any pipe leak (outward) is a permit violation, and the permit needs to say so, instead of just focusing on treated effluent. Condition C.19 of the draft permit for Old Standard, WV0105724, is a helpful model. The permit should also require monitoring of collection flows as needed to find leaks. To forbid pipe leaks, but have no mechanism to identify them, is not an effective permit strategy.

Monitoring for pipe leaks may include real time comparison of pump times and flow meters strategically placed in the collection system, and reconciliation of customer bills with pump times and flow meters. The monitoring may also include tests to find leaks, with smoke or perfluorocarbons (Brookhaven National Laboratory release 99-03, www.bnl.gov/bnlweb/pubaf/pr/1999/bnlpr012199.html). This kind of testing fills the same role for pipe leaks (which violate the permit and Clean Water Act) as effluent testing does for effluent violations.

Leak Reporting: Needs Clarification and Local Distribution

Appendix A IV.2.a requires written reports within 5 days of any permit noncompliance which endangers the environment. Charles Town has had dozens of instances of noncompliance, all of which endanger the environment, yet their file at DEP has no 5-day reports, just the DMRs. Furthermore Charles Town claims to inspect pipes regularly for leaks, and has never filed a 5-day report on a pipe leak either.

DEP needs to clarify when A IV.2.a applies to effluent violations and pipe leaks. It should indeed apply to all of them. If DEP has no use for the information, it should be released locally, so people downstream are aware of the problem.

The expansion of the plant puts downstream residents even more at risk than before from pollution. The permit needs to require immediate notification of local media (daily paper, radio, and e-newsletters) when Charles Town finds a permit violation. Local notice is at least needed when raw sewage is released from pipes, and when any health parameters are 50% or more worse than allowed levels. Continuous testing of turbidity, as recommended above, would allow instant reports without waiting for test results.

Overflows: Need to Be Handled and Need Description in Permit

Currently there is a bypass which takes raw sewage from the inlet directly to the outlet and into Evitts Run. This bypass carries flows above 7.4 cubic feet/second (rate of 4.8 million gallons per day, mgd). The bypass needs to be added to the description of the plant on page 1 of the permit. As long ago as 1997, DEP wanted the permit to describe the bypass (Charles Town Wastewater Treatment Plant Facility Plan 10/97 p. 11),

The State has recently requested... that the by-pass be registered when a new permit is eventually issued.

The 4.8 mgd bypass level is only 2.74 times the proposed average flow of 1.75 mgd. This ratio is an inadequate safety margin when the subject is raw sewage in a trout stream surrounded by a developed area where many children live.

There needs to be an influent holding tank for those times when flow exceeds 7.4 cfs. Charles Town needs to be required to review its continuous flow records from the past and determine the highest number of minutes when flows have lasted in the present system at over 4.46 cfs (2.88 mgd, which is 2.74 times the present daily average of 1.05 mgd). This experience will be indicative of how long future flows will exceed 7.4 cfs, after the upgrade. Charles Town needs to have a holding tank sized accordingly, before the permit can allow 1.75 mgd. Charles Town's engineer testified to the PSC that there was some volume of storage already available, but he did not say how much. (p. 165 of 8/24/04 transcript in PSC case 04-0095-S-CN)

Zones of Mixing and Dilution: Need Establishment, and Diffusers to Create Rapid Mixing

Calculations for the Charles Town permit have assumed instant dilution at all flow levels. The permit does not describe and therefore does not require a mixing zone or diffusers on the outlet pipe to create rapid mixing.

In response to my similar comment 7/25/03, DEP said 8/29/03 that "The mixing zone dilution is assigned... as provided in the Mixing Zone Guidance Development Document." DEP has a 6/30/97 document on its website titled "Water Quality Standards/Mixing Zones Implementation Guidance." If this is the document DEP meant, it requires that,

All important decisions should be rationalized in the Fact Sheet... If the Instream Waste Concentration (IWC) of a discharge is greater than or equal to 50%, the permit writer may assume the discharge mixes instantaneously and completely with the receiving stream.

The fact sheet is silent on mixing zones, so it does not comply with the guidance, "important decisions should be rationalized in the Fact Sheet." Substantively, the physics of a pipe in a stream seems unlikely to create instant mixing as the guidance claims. No scientific basis is given for the guidance. In any appeal to EQB, DEP would have to prove this approach de novo.

Regardless of the physics involved above 50%, Charles Town will only have 52% IWC at 7Q10 stream flows. On days when the stream is slightly higher than the 7Q10 level, the discharge will drop below 50%, and whatever physics is assumed will no longer apply. However on those days the concentrations and challenges to water quality will be nearly as great. Therefore zones of mixing and dilution need to be defined, and/or sufficient diffusers need to be required to ensure rapid mixing. 46CSR1-5 requires case-by-case zones if they are to be used in this permit (emphasis added),

5.1. In the permit review and planning process or upon the request of a permit applicant or permittee, the Chief may establish on a case-by-case basis an appropriate mixing zone...

5.2.b. Concentrations of pollutants which exceed the acute criteria for protection of aquatic life set forth in Appendix E, Table 1 shall not exist at any point within an assigned mixing zone or in the discharge itself unless a zone of initial dilution is assigned. A zone of initial dilution may be assigned on a case-by-case basis at the discretion of the Chief...

Fact Sheet: Needs to Be Re-issued with Correct Data, Calculations, Citations and Legal Questions

The fact sheet has erroneous figures on current discharge. While no time period is given to allow an exact refutation, the maximum BOD shown in the fact sheet, 927.29 lbs, was in April 2003, and the maximum ammonia shown, 241.77 lbs, was in March 2004. During the year covering those dates, the maximum BOD concentration was 89 ppm, not 20.65. During that same year, the average BOD concentration, ammonia concentration, and ammonia mass were 16, 3.9, and 37 respectively, not 12.5, 3.09, and 26.62 as shown. The fact sheet makes the discharge look cleaner than it is.

Federal regulations provide minimum standards for content of Fact Sheets (40CFR124, emphasis added),

124.8 The fact sheet shall briefly set forth the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the draft permit

124.56 ...NPDES fact sheets shall contain the following: (a) Any calculations or other necessary explanation of the derivation of specific effluent limitations and conditions or standards for sewage sludge use or disposal, including a citation to the applicable effluent limitation guideline... and reasons why they are applicable or an explanation of how the alternate effluent limitations were developed.

The Fact Sheet mentions "Technology based" and "Water quality based - aquatic." However there is no "citation to the applicable effluent limitation guideline..." as required. Furthermore, specific numbers in the permit do not appear in other sources, so there were calculations which have not been disclosed. Perhaps the citations and calculations are obvious to DEP, but they are not obvious to the public, and in fact there are often disagreements among outside experts or DEP staff about what citations and calculations are applicable. For example Allyn Turner's letter to me of 8/30/04 said the coliform limits of 200 and 400 are technology-based, while the Old Standard rationale, WV0105724, says they are based on "WQS." Giving specific citations would avoid ambiguity and needless controversy, as well as complying with federal regulations.

On 7/25/03 I made similar comments about the fact sheet for Modification B of this permit. That fact sheet had many numbers, and a reference to Chapter 3.3 of EPA's "Technical Support Document for Water Quality-based Toxics Control." This is like referring to a textbook and a homework problem where students try to apply the rules in the text to the numbers. The purpose of a fact sheet is not to test students but to "contain... calculations or other necessary explanation."

The current fact sheet is even worse, with very few numbers, some inaccurate, and no calculations or text referred to.

In addition DEP staff have mentioned orally a model which estimates dissolved oxygen in a stream, based on BOD in the effluent, and perhaps other parameters. This model provides "calculations" and 40CFR124.56 requires that the calculations or an explanation be included in the Fact Sheet.

Furthermore a 7/16/04 letter from DEP (Whyte) to Highland Farm (Mitchell) said that stream flows are taken from "our Watershed Characterization and Modeling System" when a gage is not available. Assuming the permit limits are based on Evitts Run flow, and that the flow was estimated by this "modeling system," the modeling system also needs to be explained in the Fact Sheet. The large modeling error for the Shenandoah, mentioned in that 7/16/04 letter, makes an explanation of the modeling system crucial. The model may not apply well in karst areas.

I assume DEP considered the "legal... questions" involved in the present state of antidegradation requirements and turbidity requirements, especially since we had an initial discussion about them 8/19/04. If DEP did consider those questions, they are required to be "briefly set forth." No legal questions are disclosed in the Fact Sheet. Setting them forth with a convincing resolution might well have avoided the lengthy comments above on antidegradation, and the possible appeals to resolve them.

The lack of required information in DEP Fact Sheets, including this one, damages public participation by forcing the public to redo research that DEP needed to do, and may have done. Tempers fray and attitudes harden. Federal regulations require better.

Attachments:

Stream Index at Four Points on Evitts Run, (results from Jefferson County Watershed Coalition)

Cacapon Institute (Gillies) letter on turbidity and TSS in West Virginia, 2/14/03

Charles Town (Furr) letter on ammonia violations, 4/13/04

Other documents cited are probably readily available to DEP, but can be provided on request. The PSC documents are at http://listeners.homestead.com/files/sew-ct.htm