tri-tac meeting

Transcription

tri-tac meeting

This is a Joint Meeting with SCAP
The October 12, 2006 meeting will be held at:
Ontario Convention and Visitors Bureau
2000 Convention Center Way
Ontario, CA 91764
http://www.ontariocvb.com/
909-937-3033
9:00 a.m. – 12:00 p.m.
General Meeting & Water Committee
Room 200 ABC
Land Committee
Room 201 AB
Afternoon Meeting
12:00 p.m. – 1:00 p.m.
CWEA Government Affairs Committee
Room 201 AB
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Ontario Convention and Visitors Bureau
2000 Convention Center Way, Ontario, CA 91764
From Los Angeles
East on Interstate 10
Exit Vineyard Avenue, turn right
At third light, Holt Blvd., turn left
At first light Convention Center Parking
Follow appropriate signs
From Orange County
North on Route 57
West on Interstate 10
Exit Vineyard Avenue, turn right
At third light, Holt Blvd., turn left
At first light Convention Center Parking
From San Diego
North on Interstate 15
West on Interstate 10
Exit Holt Blvd. to Convention Center
Convention Center Way & Holt Blvd.
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TRI-TAC MEETING
Ontario Convention & Visitors Bureau
2000 Convention Center Way
Ontario, CA 91764
909-937-3033
General Meeting & Water Committee
Meeting Room 200 ABC
Land Committee
Meeting Room 201 AB
THURSDAY, OCTOBER 12, 2006
9:00 A.M. – 12:00 P.M.
9:00 A.M. – GENERAL MEETING
1. INTRODUCTIONS
2. APPROVAL OF THE SEPTEMBER 14, 2006 –
TRI-TAC MEETING SUMMARY
3. COMMITTEE ISSUE SUMMARIES
ATTACHMENTS
PP. 4-6
IN PROCESS – WATER SUMMARIES TO BE POSTED ON WEBSITE W/I 2 WEEKS
4.
5.
6.
7.
FUTURE MEETING SCHEDULE
TRI-TAC ROSTER
COMMITTEE ASSIGNMENTS
OTHER BUSINESS/NEW ISSUES
PP. 7-8
PP. 9-24
P. 25
9:30 –11:45 A.M. – COMMITTEE MEETINGS
COMMITTEES WILL MEET SEPARATELY
A. LAND
B. WATER
C. AIR COMMITTEE INFORMATION ITEM
PP. 26-97
PP. 98-294
PP. 295-297
11:45 A.M. – 12:00 P.M. – GENERAL MEETING
COMMITTEE REPORTS
A. LAND
B. WATER
12:00 – 1:00 p.m. - CWEA GAC Meeting
3
MEETING SUMMARY
THURSDAY, SEPTEMBER 14, 2006
SAN LEANDRO, CA
SUBCOMMITTEE ISSUES AND GENERAL MEETING
THE FOLLOWING MEMBERS AND INTERESTED PARTIES WERE PRESENT:
Rodney Anderson, City of Burbank
Layne Baroldi, OCSD
Phil Bobel, City of Palo Alto
Gail Chesler, CCCSD
Jim Colston, OCSD
Rod Cruze, City of Riverside
Tess Dunham, Larry Walker Associates
Ed Filadelfia, EMWD
Kris Flaig, City of Los Angles
Dian Gilbert, City of Los Angeles
Bob Gillette, Carollo Engineers
Tom Hall, EOA
Ben Horenstein, EBMUD
Valeria Housel, City of San Bernardino
Bill Keaney, San Francisco PUC
Ray Kearney, EnerTech
Lori Koch, Oakley Water Strategies
Bobbi Larson, CASA
Craig Levken, Brown & Caldwell
Trish Maguire, EBMUD
Ed McCormick, EBMUD
Patricia McGovern, P. McGovern Engrs.
Steve Medbery, San Francisco PUC
Monica Oakley, Oakley Water Strategies
Elizabeth Ostoich, Synagro
John Pastore, SCAP
Bob Reid, West Valley San Dist
John Schroeter, EBMUD
Natalie Sierra, San Francisco PUC
Mike Sullivan, LACSD
Curtis Swanson, CCCSD
Warren Tellefson, CVCWA
David Tucker, City of San Jose
Roger Turner, EMWD
Chuck Weir, EBDA
Paul Worlie, Liquid Environmental
Introductions, Announcements, and Discussion Items
Introductions were made. Warren Tellefson provided a summary of a tour of a medium and small
POTW CVCWA provided for new State Water Board member Charles Hoppin. Monica Oakley
provided a summary of new State Water Board member Gary Wolff’s attendance at the SF Bay
Regional Water Board meeting.
Approval of Last Meeting’s Action Items
The Meeting Summary from the July 13, 2006 meeting was approved without change.
Committee Issue Summaries
The Committees will update the summaries on a quarterly basis. An update from the Land
Committee is included in the packet. The Water Committee will have an update in the October
packet. The Water Committee provided an item of interest, which is at the end of the packet.
Future Meeting Schedule, Roster, and Committee Assignments
These items were reviewed. The next meeting will be at the Ontario Convention Center on
October 12, 2006.
Other Business
CWEA Government Affairs Committee Chair Colston announced that there would be a meeting
from 12 – 1 p.m. There will be another GAC meeting following the October 12, 2006 Tri-TAC
meeting.
C:\My Documents\Tri-TAC\2006 Packets\October 2006\Meeting_Attendees_09-14-06.doc
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LAND COMMITTEE MINUTES FROM SEPTEMBER 14, 2006
LAYNE BAROLDI AND MAURA BONNARENS
1. Kern County Litigation
Much discussion was had regarding the numerous briefs, declarations, papers, etc. that
were filed on behalf of the City of L.A. et al and Kern County in federal court in Los
Angeles. It is anticipated that the court will want to decide on October 16, 2006 the legal
validity of the complaint and the propriety of venue before it addresses the specific facts
and issues raised by L.A.’s extensive briefing on the preliminary injunction.
2. San Joaquin Valley Air Pollution Control District (SJVAPCD) Proposed Rule 4565
Public workshops will be conducted in person and via video teleconferencing (VTC) at
the SJVAPCD offices on the following dates and times:
Fresno: October 2, 2006 (Monday) at 1:30 pm
Bakersfield: October 4, 2006 (Wednesday) at 1:30 pm
Modesto: October 6, 2006 (Friday) at 1:00 pm
The main objective of this rulemaking project is to reduce VOC emissions from
composting/biosolids facilities (defined as being solid organic waste disposal and
processing facilities that handle animal excretions or material resulting from the
treatment of animal excretions). Solid organic waste disposal and processing facilities,
for the purpose of this rule, are facilities where organic material, in the presence of air,
is biologically decomposed to form humus-like material. This definition includes facilities
that inadvertently compost by piling and/or spreading organic material without
incorporating the material into the ground before the organic material becomes active
compost (land application and land filling). Staff from Synagro and LACSD plan on
attending these meetings.
3. Regional Facilities – Biosolids Management Capacity
Seven BACWA agencies have entered into an MOU to participate in a regional biosolids
management facility. An RFP for biosolids drying, or another sustainable option, as an
interim solution is being drafted. Synagro’s South Kern Industrial Center composting
facility (550 tpd capacity) is anticipated to be operational in December 2006. The Land
Committee discussed issues related to the sustainability of Class B biosolids
management in Arizona.
4. Cement Industry Update
One of the Land Committee’s goals is to determine how we can best work with the
cement industry and individual kilns to determine whether the use of biosolids as a
carbon neutral fuel in cement kilns is feasible for the wastewater treatment community
as well as for the cement industry. The committee discussed a concern that one cement
company is attempting to obtain a patent that may preclude other cement companies
from using biosolids as a fuel.
C:\My Documents\Tri-TAC\2006 Packets\October 2006\LAND_COMMITTEE_MINUTES_09-14-06.doc
5
Tri-TAC Water Committee
Meeting Summary
September 14, 2006
1. Permit Language Regarding WDR Issues – Reviewed a draft memo from the State Water
Board to the Regional Water Boards regarding integration of the SSO WDR into NPDES
permits. Agreed that comments should be consistent with comments on the permit template.
Agreed on a process and timeline for providing comments – Larson Lead
2. SWRCB Permit Template – Reviewed comments developed to date and noted additional
issues. Agreed on a process and timeline for providing comments – Oakley lead. Concurred
that the comments would be submitted jointly by Tri-TAC, CASA, SCAP, CVCWA, and
BACWA. Agreed to ask for an additional week for the SIP template and two weeks for the
COP template.
3. Legal Challenge to SIP Compliance Schedules – Reviewed complaint filed by BayKeeper et
al and discussed options of CASA/BACWA intervention – Larson lead.
4. WEF TMDL Daily Decision Workgroup and WEF Compounds of Emerging Concern
Community of Practice – Reviewed emails from WEF. Tucker indicated San Jose staff has
been involved
5. ROG Bill – AB1333 – Maguire provided an update on an actual success story for Tri-TAC
and the CalFOG Workgroup.
6. Cyanide – Discussed issues related to cyanide on a statewide basis. Issues include method
interferences, dilution/attenuation, and site specific objective development.
7. e-SMR Reporting – Reviewed the status of the State Water Board’s CIWQC program and
noted that federal money may have evaporated before the system is fully developed.
Prospects for success appear to be diminishing. Some State Water Board staff have
apparently resigned as a result of problems.
8. Groundwater Recharge Limits – Discussed issues related to the potential requirement for new
requirements being applied to POTWs effluent due to discharge to a stream that may have a
designation for groundwater recharge even though there is no evidence that wells are being
impacted. Appears to be a future effluent dominated waterbody issue.
9. EBMUD Wet Weather Permits – Reviewed EBMUD’s permits and noted that such projects
may be held to higher standards in the future.
C:\My Documents\Tri-TAC\2006 Packets\October 2006\Water_Meeting_Summary_09-14-06.doc
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TRI-TAC MEETING LOCATION & SCHEDULE 2006
TRI-TAC MEETING
DATE1
OCTOBER 12, 2006
NOVEMBER 9, 2006
LOCATION/HOTEL
COMMENTS2
Ontario Convention Center
CA Teachers Association Main Conf. Room
Land Comm. – CASA Conf. Room 925 L
Street, 14th Floor
DECEMBER 7, 2006
Boy Scout Council, San Leandro
Holiday Luncheon
1
If you would like to add an agenda item or schedule a presentation for an upcoming meeting, please
contact one of the committee co-chairs at least 14 days before the designated meeting date
2
If you would like an “after Tri-TAC” meeting noted in the agenda package, please contact Chuck Weir at
least ten days before the designated meeting date.
¹ Air Committee will meet.
Notes for 2006:
1. January, May, and October are confirmed at Ontario Convention Center.
2. February, April, July, September, and December are confirmed at the Boy
Scout Council in San Leandro. Note December changed to the 7th to avoid
Holiday conflicts.
3. March, June and November are confirmed for Sacramento. See above for
details.
C:\My Documents\Tri-TAC\2006 Packets\October 2006\Meeting_Schedule_as_of_10-12-06.doc
7
TRI-TAC MEETING LOCATION & SCHEDULE 2007
TRI-TAC MEETING
DATE1
January 11, 2007
FEBRUARY 8, 2007
MARCH 8, 2007
APRIL 12, 2007
MAY 10, 2007
JUNE 14, 2007
JULY 12, 2007
AUGUST 9, 2007
LOCATION/HOTEL
Ontario Airport Marriott
2200 E Holt Boulevard
Ontario, California 91761 USA
909-975-5000
Boy Scout Council
1001 Davis Street
San Leandro, CA 94577
510-577-9000
Sacramento, CA 95814
Sacramento
Usually not held
COMMENTS2
CASA 1/17-20/07 Indian
Wells
¹
CWEA 4/17-21/07 Ontario
CASA 5/2-5/07 Napa
¹
CASA 8/15-18/2007 San
Diego
SEPTEMBER 13, 2007 Boy Scout Council, San Leandro
OCTOBER 11, 2007
NOVEMBER 8, 2007
Sacramento
DECEMBER 13, 2007
Holiday Luncheon
1
If you would like to add an agenda item or schedule a presentation for an upcoming meeting, please
contact one of the committee co-chairs at least 14 days before the designated meeting date
2
If you would like an “after Tri-TAC” meeting noted in the agenda package, please contact Chuck
Weir at least ten days before the designated meeting date.
¹ Air Committee will meet.
Notes for 2007
1. All confirmed. We are trying the Marriott in January 2007. Costs comparable to
Convention Center and shuttle service and restaurants are available. Ontario
Convention Center only books six months in advance, but they have our dates on
file. We will have them unless a “bigger” event bumps us.
C:\My Documents\Tri-TAC\2006 Packets\October 2006\Meeting_Schedule_2007.doc
8
Tri-TAC Roster for
October 12, 2006
Name
Randa Abushaban
Gregory Adams
Terry Ahn
Christian Alarcon
Elizabeth Allan
Rodney Andersen
Cassie Aw-Yang
Larry Bahr
Marilyn Bailey
Regan S. Bailey
Matt Bao
Layne Baroldi
June 8, 2006
Initials
Company
Inland Empire Utilities Agency
6075 Kimball
Chino, CA 91710
LACSD
Air Quality Engineering
1955 Workman Mill Road
Whittier, CA 90601-1400
Orange County Sanitation District
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
LACSD
Whittier, CA 90601-1400
California Water Environment
Association
7677 Oakport St, Suite 525
Oakland, CA 94621
City of Burbank
275 E. Olive Avenue
Burbank, CA 91502
CASA
813 Sixth St., 3rd Fl.
Sacramento, CA 95814-2403
Fairfield Suisun Sewer District
1010 Chadbourne Road
Fairfield, CA 94534
RMC
2001 N. Main St.
Suite 400
Walnut Creek, CA 94596
City of Riverside
5950 Acorn Street
Riverside, CA 92504
LACSD
Whittier, CA 90601
10844 Ellis Avenue
E-mail Address
[email protected]
Phone
Number
(909)993-1917
Fax Number
(909)993-1983
[email protected]
(562) 699-7411
ext. 2113
(562) 692-9690
[email protected]
(714) 593-7082
(714) 962-8379
[email protected]
(562) 699-7411
ext. 2814
[email protected]
(510) 382-7800
(510) 382-7810
[email protected].
ca.us
(818) 238-3931
(818) 238-3918
[email protected]
(916)446-7979
ext. 338
(916) 446-8199
[email protected]
(707) 429-8930
(707) 429-1280
[email protected]
m
(925) 627-4100
(925) 627-4101
[email protected]
ov
(951)351-6095
(951)687-6978
[email protected]
(562) 699-7411
ext. 2809
(562) 692-5103
[email protected]
(714) 593-7456
(714) 962-2591
9
Name
Laura Behjan
Matt Bequette
Jeff Berk
James Bewley
Jinderpal Bhandal
Rebecca Bjork
Phil Bobel
Kevin Bolin
Maura Bonnarens
Sheila Z. Brice
Anne Briggs
Dave Bruns
Kevin Buchan
June 8, 2006
Initials
Phone
Number
(805) 583-6701
Company
City of Simi Valley
2929 Tapo Canyon Road
Simi Valley, CA 93063-2199
City of LA
E-mail Address
[email protected]
Fax Number
(805) 526-2489
matthew.bequette@lacit
y.org
(310)648-5532
HDR Engineering, Inc.
26250 Enterprise Court, Suite 150
Lake Forest, CA 92630
South Bayside System Authority
1400 Radio Road
Redwood City, CA 94065
City of LA
Bureau of Sanitation
Regulatory Affairs Division
1200 Vista Del mar
Playa Del Rey, CA 90293
City of Santa Barbara
630 Garden Street
Santa Barbara, CA 93102
City of Palo Alto
2501 Embarcadero Way
Palo Alto, CA 94303
Enertech Environmental Inc.
[email protected]
(949) 454-3600
(949) 454-3601
[email protected]
(650) 594-8411
ext. 124
(650) 591-7122
Jinderpal.bhandal.lacity.
org
(310) 648-5755
rbjork@santabarbaraca.
gov
(805) 897-1914
(805) 897-2613
phil.bobel@cityofpaloal
to.org
(650) 329-2285
(650) 494-3531
[email protected]
(678)296-2851
East Bay Municipal Utility District
P.O. Box 24055 MS 702
Oakland, CA 94623
City of Los Angeles, Sanitation
433 S. Spring St.
Los Angeles, CA 90013
Eastern Municipal Water District
P.O. Box 8300
Perris, CA 92572
LACSD
Whittier, CA 90601
WSPA
[email protected]
(510) 287-1141
(510) 287-1530
[email protected]
(213) 473-8564
(213) 473-8544
[email protected]
(951) 928-3777
ext. 6327
(951) 928-6117
[email protected]
(562) 699-7411
ext. 2704
(562) 695-1874
[email protected]
(916) 498-7755
10
Name
Fred Burnett
Mike Calvert
Frank Caponi
Michael Carlin
Dindo Carrillo
Paul Causey
Donna Chen
James Chen
Gail Chesler
James Clark
Joyce T. Clark
Alex Coate
James Colston
June 8, 2006
Initials
Company
Calaveras County Water District
P.O. Box 846
San Andreas, CA 95249
Rancho California Water District
LACSD
Whittier, CA 90601
San Francisco Public Utilities
Commission
1145 Market Street, Suite 401
San Francisco, CA 94103
OCSD
733 Cree Court
City of Los Angeles
1149 S. Broadway, 10th Floor
M.S. 1149-756
Union Sanitary District
5072 Benson Road
Union City, CA 94587
Central Contra Costa San. District
5019 Imhoff Place
Martinez, CA 94553
Black & Veatch
800 Wilshire Blvd., Suite 600
Metropolitan Water District of
Southern California
Operations Support Services
P.O. Box 54153
Los Angeles, CA 90054-0153
P.O. Box 24055, MS 704
Oakland, CA 94623-1055
10844 Ellis Avenue
Fountain Valley, CA 92708
Phone
Number
(209) 754-3543
ext. 35
Fax Number
(209) 754-1069
calvertm@ranchowater.
com
[email protected]
(951)296-6965
(951)698-5837
(562) 699-7411
ext. 2460
(562) 908-9572
[email protected]
(415) 934-5787
(415) 934-5751
[email protected]
(714)593-7476
E-mail Address
[email protected]
(925) 932-5032
donna.toy.chen@lacity.
org
(213) 485-3928
(925) 932-5032
call first
(213)
Jim_chen@unionsanitar
y.com
(510) 477-7561
(510) 477-7505
[email protected]
.ca.us
(925) 229-7294
(925) 228-4624
[email protected]
(213) 312-3300
(213) 312-3399
[email protected]
(213) 217-5593
(213) 217-6700
[email protected]
(510) 287-1663
(510) 287-1295
[email protected]
(714) 593-7458
(714) 962-2591
11
Name
Patricia Cruz
Rodney W. Cruze
Rich Currie
Stan Dean
Mark Dellinger
Gus Dembegiotes
Initials
Company
City of Los Angeles
433 S. Spring Street, 5th Floor
City of Riverside
5950 Acorn Street
Riverside, CA 92504
5072 Benson Road
Sacramento Regional County SD
8521 Laguna Station Road
Elk Grove, CA 95758
Lake County Sanitation
230 A Main Street
Lakeport, CA 95453
City of LA
E-mail Address
Phone
Number
Fax Number
[email protected]
(951) 351-6011
(951) 687-6978
rich_currie@unionsanit
ary.com
(510)477-7500
(510)477-7501
[email protected]
(916) 875-9101
(916) 875-9107
[email protected]
(707) 263-0119
(707) 263-3836
gus.dembegiotes@lacity
.org
(310) 648-5493
Linda Dorn
Sacramento Regional Sanitation District
10545 Armstrong
[email protected]
(916) 876-6050
Jason R. Dow
Central Marin Sanitation Agency
1301 Andersen Dr.
San Rafael, CA 94901
CASA
Biosolids Program Manager
925 L Street, Suite 1400
Larry Walker Associates
707 4th Street
Davis, CA 95616
City of Folsom
50 Natoma Street
Folsom, CA 95630-2696
P.O. Box 8300
Perris, CA 92572
City of LA
1200 Vista Del mar
[email protected]
rg
(415) 459-1455
ext. 145
(415) 459-3971
[email protected]
m
(916) 446-0388
(562) 212-5330
(mobile)
(916) 448-4808
[email protected]
(530)753-6400
(530)753-7030
[email protected]
(916) 351-3502
(916) 351-0525
[email protected]
(951) 928-3777
ext. 4318
(951) 928-6117
[email protected]
(310) 648-5489
(310) 648-5115
Marlaigne Dumaine
Tess Dunham
Todd Eising
Edward J. Filadelfia
Kris Flaig
June 8, 2006
12
Name
Mary Jane Forster
Foley
Lauren Fondahl
Tad S. Foster
Phil Friess
Donald Gabb
Ron Garner
Monica Gasca
Robert Geyer
Robert P. Ghirelli
Preeti Ghurman
Diane Gilbert
Bob Gillette
Nicole Granquist
Sharon Green
June 8, 2006
Initials
Company
MJF Consulting, Inc.
7 Phillips Circle
Laguna Niguel, CA 92677
U.S. EPA
75 Hawthorne Street
Tad S. Foster
20 Boulder Crescent
Colorado Springs, CO 80903
LACSD
Whittier, CA 90601
P.O. Box 24055, Mail Slot 59
Deputy Director, Env. Services
San Jose/Santa Clara WPCP
700 Los Esteros Road
San Jose, CA 95134
LACSD
Whittier, CA 90601
City of Watsonville
320 Harvest Drive
Watsonville, CA 95076
P.O. Box 8127
LACSD
Whittier, CA 90601
City of Los Angeles
12000 Vista del Mar
Playa del Rey, CA 90293
Carollo Engineers
2500 Venture Oaks Way, Ste. 320
Downey Brand
555 Capitol Mall 10th Floor
LACSD
Whittier, CA 90601
E-mail Address
[email protected]
Phone
Number
(949) 493-8466
Fax Number
(949) 481-2132
[email protected]
415-972-3514
415-947-3545
[email protected]
om
(719) 632-5240
(719) 633-4759
[email protected]
(562) 699-7411
ext. 1701
(562) 699-6358
[email protected]
(510) 287-1602
(510) 287-1712
[email protected]
ov
(408) 945-5316
[email protected]
(562) 699-7411
ext. 2838
[email protected].
ca.us
(831) 728-6149
(831) 763-4060
[email protected]
(714) 593-7400
(714) 962-6957
[email protected]
(562)699-7411
Ext. 2904
(562)908-4224
[email protected]
g
(310)648-5248
(310) 648-5114
[email protected]
(916) 565-4888
(916) 565-4880
ngranquist@downeybra
nd.com
(916) 444-1000
ext. 6369
(916) 444-2100
[email protected]
(562) 699-7411
ext. 2503
(562) 692-5103
ov
13
Name
Patrick Griffith
Thomas Grovhoug
Joe Gully
Gary Hackney
Thomas Hall
Alan Harrell
Matt Harward
F. Patrick Hassey
Kurt Haunschild
Simon Heart
Ann Heil
Vaughn Henrie
Michelle Hetherington
Lydia Holmes
Ben Horenstein
June 8, 2006
Initials
Company
LACSD
Whittier, CA 90601
509A Fourth Street
Davis, CA 95616
LACSD
Whittier, CA 90601
IEUA
EOA, Inc.
1410 Jackson Street
Oakland, CA 94612
Coachella Valley Water District
Post Office Box 1058
Coachella CA 92236
Yucaipa Valley Water District
P.O. Box 730
Yucaipa, CA 92399
Brown & Caldwell
10540 Whiterock Rd. Suite 180
Rancho Cordova, CA 95670
2020 Wake Avenue
Oakland, CA 94607
MWH
1340 Trent Blvd., Suite 300
LACSD
Whittier, CA 90601
5072 Benson Road
PO Box 8127
Carollo Engineers
2700 Ygnacio Valley Rd., Ste. 300
375 11th Street, M/S 702
Oakland, CA 94607
E-mail Address
[email protected]
Phone
Number
(562) 699-7411
ext. 2117
Fax Number
(562) 692-9690
[email protected]
(530) 753-6400
(530) 753-7030
[email protected]
(562) 699-0405
(562) 695-7267
(909) 993-1720
[email protected]
(510) 832-2852
ext. 110
(510) 832-2856
[email protected]
(760) 398-2661
ext. 2200
(760) 391-9637
[email protected]
.us
(909) 797-5119
ext. 4
(909) 797-6381
[email protected]
(916) 712-5498
(916) 635-8805
[email protected]
(510) 287-1407
(510) 287-1715
simon.heart@mwhgloba
l.com
(925) 274-2254
(925) 945-1760
[email protected]
(562) 699-7411
ext. 2950
(562) 908-4224
Vaughn_henrie@unions
anitary.com
(510) 477-7637
(510) 477-7501
[email protected]
m
(714)593-7022
[email protected]
(925) 932-1710
(925) 930-0208
[email protected]
(510) 287-1846
(510) 287-1530
14
Name
Bob Horvath
Valerie Housel
Kirk Howard
Warren Huang
Stephanie Hughes
Initials
Company
LACSD
Whittier, CA 90601
City of San Bernardino
Water Department
399 Chandler Place
San Bernardino, CA 92408
Fairfield Suisun Sewer District
Fairfield, CA 94534
City of Los Angeles
Phone
Number
(562) 699-7411
ext. 2501
Fax Number
(562) 692-5103
[email protected]
(909) 384-5117
(909) 384-5258
[email protected]
(707) 429-8930
(707) 429-1280
[email protected]
g
(310)648-5258
(310)648-5115
[email protected]
m
(408)240-8174
(408)240-8161
[email protected]
(916) 658-8242
(916) 658-8200
[email protected]
(510) 287-0509
(510) 287-1330
[email protected]
(760)479-4112
(760)942-4508
[email protected]
m
(714) 593-7471
(714) 962-2591
[email protected]
(415) 242-2231
(415) 242-2285
[email protected]
(916) 286-0390
(916) 614-3580
E-mail Address
[email protected]
Dave Jones
RMC Water & Environment
2290 N. First Street, Suite 212
San Jose, CA 95131
League of CA Cities
1400 K Street
Sr. Env. Health & Safety Specialist
375 11th St., MS 704
Oakland, CA 94607
Dudek
605 Third Street
Encinitas, CA 92024
10844 Ellis Avenue
SF P.U.C.
3500 Great Highway
San Francisco, CA 94132-1000
CH2M Hill
Carol Kaufman
Metropolitan Water District
Bill Keaney
San Francisco PUC
1145 Market Street
[email protected]
(415)934-5754
Ray Kearney
EnerTech Environmental, Inc.
13006 Warren Avenue
[email protected]
(310) 391-1989
Yvonne Hunter
Dan Jackson
Steve Jepsen
Chandra Johannesson
Bonnie Jones
June 8, 2006
(310) 391-1982
15
Name
James Kelly
Nancy Kelly
Jacqueline Kepke
Wendell Kido
Peggy King
Lori Koch
Vlad Kogan
Bob Kreg
Roberta Larson
Rosa Lau-Staggs
Craig Lekven
Jennifer Lewis
Ernesto Libunao
June 8, 2006
Initials
Company
Central Contra Costa
Sanitary District
5019 Imhoff Place
Martinez, CA 94553
Central Contra Costa Sanitary District
5019 Imhoff Place
Martinez, CA 94553
CH2M HILL
155 Grand Avenue, Suite 1000
Oakland, CA 94612
Sacramento Regional County SD
10545 Armstrong Avenue, Ste 101
Mather, CA 95655
Lake County Sanitation District
230 A Main Street
Lakeport, CA 95453
Oakley Water Strategies
2100 Lakeshore Avenue
Suite C
Oakland, CA 94606
10844 Ellis Ave
SCAP – c/o RCM Consulting
30200 Rancho Viejo Road, Suite B
San Juan Capistrano, CA 92675-1575
CASA
813 Sixth St., 3rd Fl.
City of Fresno
5607 W. Jensen
Fresno, CA 93706
Brown and Caldwell
10540 White Rock Road, Suite 180
League of California Cities
1400 K Street
City of Los Angeles
Biosolids Management
Hyperion Treatment Plant
12000 Vista Del Mar
E-mail Address
[email protected]
.us
Phone
Number
(925) 229 7386
Fax Number
(925) 689-1232
[email protected]
a.us
925-335-7794
[email protected]
(510) 587-7545
(510) 622-9045
[email protected]
(916) 876-6002
(916) 876-6160
[email protected]
(707) 263-0119
(707) 263-3836
[email protected]
m
(510)663-3600
(510)663-3601
[email protected]
(714)593-7085
(714)962-8379
[email protected]
(949) 489-0100
(949) 489-0150
[email protected]
(916) 446-7979
ext. 307
(916) 446-8199
[email protected]
a.us
(559)621-5130
(559)498-1933
[email protected]
(916) 853-5353
(916) 635-8805
[email protected]
(916) 658-8226
(916) 658-8200
Ernesto.libunao@lacity.
org
(310)648-5319
(310)648-5070
16
Name
Richard Luthy
Jim Marchese
Stephen Maguin
Trish Maguire
Matthews, Robert L.
Kevin Maung
Ed McCormick
Steve McDonald
Karen McDonough
Daniel McGivney
Patricia McGovern
Steven C. Medbery
Raymond C. Miller
June 8, 2006
Initials
Company
Fairfield-Suisun Sewer District
Fairfield, CA 94534
City of Los Angeles
12000 Vista Del Mar
Playa del Rey
Harrington Training Center, 4th floor
LACSD
Whittier, CA 90601
EBMUD
375 11th Street
Oakland, CA
Camp Dresser & Mckee
2920 Inland Empire Boulevard, Suite 108
Ontario, CA 91764
San Jose/Santa Clara WPCP
P. O. Box 24055 Mail Slot 702
Carollo Engineers
2700 Ygnacio Valley Rd, Ste 300
City of San Jose
Environmental Services Dept
777 North First St., Ste. 300
San Jose, CA 95112
P.O. Box 8300
Perris, CA 92570
Patricia McGovern Engineers
1100 Lombard Street, #4
San Francisco P.U.C.
3801 Third Street, Suite 600
SCAP- c/o RCM Consulting
30200 Rancho Viejo Road, Ste B
San Juan Capistrano, CA 92675-1575
E-mail Address
[email protected]
Phone
Number
(707) 429-8930
Fax Number
(707) 429-1280
[email protected]
(310)648-5421
(310)648-5115
[email protected]
(562) 699-7411
ext. 1503
(562) 695-8660
[email protected]
(510) 287-1726
(510) 287-0621
[email protected]
(909) 945-3000
(909) 945-1333
Kevinwin.maung@sanjoseca.
gov
[email protected]
(408) 945-5135
(408) 945-5442
(510) 287-1657
(510) 986-7661
[email protected]
m
(925) 932-1710
(925) 930-0208
karen.mcdonough@sanj
oseca.gov
(408) 277-5423
(408) 277-3606
[email protected]
(951) 928-3777
ext. 6329
(951) 928-6177
triciamcgovern@comca
st.net
(510) 919-2661
[email protected]
(415) 695-7310
(415) 695-7388
[email protected]
(949) 489-7676
(949) 489-0150
17
Name
Traci J. Minamide
Terrie Mitchell
H.R. (Omar)
Moghaddam
Anant R. Mokashi
Thierry R. Montoya,
Esq.
Michael Moore
Kelly Moran
Andy Morrison
Raffi Moughamian
Arleen Navarret
Margaret Nellor
John "Jack" Nelson
June 8, 2006
Initials
Company
City of Los Angeles
433 S. Spring St., 4th Floor
Sacramento Regional County
Sanitation District
Mather, CA 95655
City of Los Angeles
12000 Vista Del Mar
City of Los Angeles
12000 Vista Del Mar
Morris, Polich & Purdy, LLP
500 N. State College Blvd.,
Suite 1100
Orange, CA 92868
P.O. Box 8127
TDL Environmental, LLC
4020 Bayview Ave.
San Mateo, CA 94402
5072 Benson Road
Union City, CA 94587-2508
5019 Imhoff Place
Martinez, CA 94553
San Francisco PUC
Planning Bureau
1145 Market Street
Nellor Environmental Associates, Inc.
4024 Walnut Clay Drive
Austin, TX 78731
Yucaipa Valley Water District
PO Box 730
Yucaipa, CA 92399
Phone
Number
(213) 473-7999
Fax Number
(213) 473-8100
[email protected]
t
(916) 876-6092
(916) 854-8892
omar.moghaddam@laci
ty.org
(310) 648-5423
(213) 485-3916
(310) 648-5115
[email protected]
rg
(310) 648-5385
(310) 648-5115
[email protected]
m
(714) 939-1100
(714) 939-9261
[email protected]
(714) 593-7450
(714) 962-2591
kmoran@tdlenvironmen
tal.com
(650)627-8690
(650)627-8814
andy_morrison1@union
sanitary.com
(510) 477-7542
(510) 477-7506
rmoughamian@centrals
an.ddst.ca.us
(925)229-7119
(925)228-4624
[email protected]
(415) 934-5731
(415) 934-5750
margie@nellorenvironm
ental.com
(512) 374-9330
[email protected]
(909) 797-5119
ext. 3
E-mail Address
[email protected]
(909) 797-6381
18
Name
Monica M. Oakley
Lisa Ohlund
Elizabeth “Liz” Ostoich
John Pastore
Dipak Patel
Nicole Peacock
Michele Pla
Mark Pumford
Randy Raines
Mallika Ramanathan
Robert Reid
Carlos Reyes
Glenn Reinhardt
Ruben Robles
June 8, 2006
Initials
Phone
Number
(510) 663-3600
Company
Oakley Water Strategies
2100 Lakeshore Avenue
Suite C
Oakland, CA 94611
SCAP
E-mail Address
moakley@oakleywater.
com
Fax Number
(510) 663-3601
[email protected]
(949) 661-9395
Project Development, West Region
Synagro Technologies, Inc.
P.O. Box 2313
Riverside, CA 92516
SCAP
30200 Rancho Viejo Rd, Suite B
San Juan Capistrano, CA 92675
City of Los Angeles
433 S. Spring Street
Dudek
605 Third Street
Encinitas, CA 92024
BACWA
6114 LaSalle Ave., #456
City of Oxnard
601 S. Perkins
Oxnard, CA 93033
RMC Water and Environment
140 Geary Street, Suite 900
EBMUD
375 11th St. MS 702
West Valley Sanitation District
100 East Sunnyoaks Avenue
Campbell, CA 95008
Las Virgenes Municipal Water
District
4232 Las Virgenes Road
Calabasas, CA 91302
WERF
[email protected]
(951) 369-5056
(951) 288 5828
(951) 277-2960
[email protected]
(760)479-4121
(760)942-5206
[email protected]
(213) 473-8563
[email protected]
(760)479-4152
[email protected]
t
(510) 547-1174
[email protected].
ca.us
(805) 271-2220
(805) 488-1583
[email protected]
(415) 321-3400
(415) 321-3401
[email protected]
(510) 287-1635
(510) 287-1530
[email protected]
g
(408) 378-2407
ext. 11
(408) 364-1821
[email protected]
(818) 251-2330
(818) 251-2159
Sanitation District
Mather, CA 95655
[email protected]
(916) 876-6119
(916) 876-6160
(760)942-5206
[email protected]
19
Name
John Roddy
Shahrouzeh Saneie
Chris Scheuring
Amanda Schmidt
Randy Schmidt
John Schroeter
John Shaffer
E.J. Shalaby
Natalie Sierra
Jennifer Smith
Keith A. Smith
Mary Snyder
June 8, 2006
Initials
Company
San Francisco PUC
1390 Market Street
#418
City of Los Angeles
12000 Vista Del Mar
Somach, Simmons & Dunn
813 Sixth St., Third Floor
RMC Water and Environment
2868 Prospect Park Dr.
Suite 130
CCCSD
5019 Imhoff Pl.
Martinez, CA 94553
Environmental Compliance Division
375 11th St., MS 704
Oakland, CA 94607
Environmental Engineering &
Contracting, Inc.
501 Parkcenter Drive
Santa Ana, CA 92705
West County Wastewater District
2910 Hilltop Drive
Richmond, CA 94806
SF PUC
Wastewater Enterprise
1145 Market Street
5th Floor
P.O. Box 24055, MS 704
City of Davis
Wastewater Administrator
Public Works Department
23 Russell Blvd.
Davis, CA 95616
CSD-1
10545 Armstrong Ave. Suite 101
Mather, CA 95655
Phone
Number
(415) 554-3986
Fax Number
(415) 554-8793
shahrouzeh.saneie@laci
ty.org
(310) 648-5239
(310) 648-5115
[email protected]
m
(916) 446-7979
(916) 446-8199
[email protected]
m
(916)273-1500
(916)273-1501
[email protected]
t.ca.us
(925) 229-7333
(925) 228-4624
[email protected]
(510) 287-0345
[email protected]
(714) 667-2300
(714) 667-2310
[email protected]
(510) 222-6700
(510) 222-3277
[email protected]
(415)648-6882
[email protected]
(510) 287-0509
(510) 287-1712
[email protected]
(530) 757-5686
(530) 758-4738
[email protected]
916-876-6004
916-531-6004
(cell)
E-mail Address
[email protected]
20
Name
Rick Staggs
James Stahl
Herb Stone
Karen Soares
Mike Sullivan
Curtis Swanson
Bonnie Teaford
Warren Tellefson
Melissa Thorme
Martha Tremblay
Dave Tompkins
Jerry Troyan
David L. Tucker
June 8, 2006
Initials
Company
City of Fresno
5607 W. Jensen
Fresno, CA 93706
LACSD
Whittier, CA 90601
Industrial Dischargers
330 Galli Court
Los Altos, CA 94022
LACSD
Whittier, CA 90601
LACSD
Whittier, CA 90601
5019 Imhoff Place
Martinez, CA 94553
City of Burbank
275 E. Olive Avenue
Burbank, CA 91502
Central Valley Clean Water Assoc
11476 C Avenue
Auburn, CA 95603
Downey Brand LLP
555 Capitol Mall 10th Floor
LACSD
Whittier, CA 90601
City of Vacaville
P.O. Box 220
Elmira, CA 95625
Sanitation Dist
10545 Armstrong Avenue,
Suite 101
Mather, CA 95655
City of Merced
678 W. 18th Street
Merced, CA 95340
E-mail Address
[email protected].
ca.us
Phone
Number
(559) 621-5190
Fax Number
(559)498-1700
[email protected]
(562) 699-7411
ext. 1501
(562) 695-8660
[email protected]
(650) 948-6580
(650) 948-6580
[email protected]
(562) 699-7411
ext. 2829
(562) 908-4293
[email protected]
(562) 699-7411
ext. 2824
(562) 692-5103
[email protected]
st.ca.us
(925) 229-7336
(925) 228-4864
[email protected]
.us
(818) 238-3921
(818) 238-3918
[email protected]
(530) 886-4911
(530) 889-6809
mthorme@downeybran
d.com
(916) 444-1000
ext. 6376
(916) 444-2100
[email protected]
(562) 699-7411
ext. 2830
[email protected]
.ca.us
(707) 469-6400
(707) 469-6480
[email protected]
(916) 876-6077
(916) 876-6160
Tuckerd@cityofmerced.
org
(209) 385-6846
(209) 725-8775
21
Name
David W. Tucker
Roger W. Turner
Initials
Company
City of San Jose
Environmental Services Dept
Technical Support Services
170 W. San Carlos Street
San Jose, CA 95113
3415 Santa Cruz
Riverside, CA 92507
Al Vargas
Phone
Number
(408) 277-5695
Fax Number
(408) 277-2357
[email protected]
et
(951) 707-5020
(951) 683-5890
[email protected]
(530) 391-0890
(916) 657-5017
E-mail Address
david.tucker@sanjoseca
.gov
Ted Vitko
[email protected]
(714)593-7442
Ray von Dohren
Carmel Area Wastewater District
3945 Rio Road
Carmel, CA 93923
City of Burbank
333 E. Olive Avenue
Burbank, CA
City of San Diego Wastewater Dept.
2392 Kincaid Road
San Diego, CA 92101
East Bay Dischargers Authority
2651 Grant Avenue
San Lorenzo, CA 94580
509A 4th Street
Davis, CA 95616
CH2MHill
325 E. Hillcrest Drive, Suite 125
Thousand Oaks, CA 91360
375 - 11th Street, MS 702
Oakland, CA 94607
CH2M HILL
155 Grand Avenue, Suite 1000
Oakland, CA 94612
Liquid Environmental Solutions
12626 High Bluff Drive #240
San Diego, CA 92130
Brown and Caldwell
201 North Civic Drive
[email protected]
(831) 624-1248
Dan Wall
Larry Wasserman
Charles Weir
Gil Wheeler
Brian Whitaker
David Williams
Jay Witherspoon
Paul Worlie
Wynn W. Yin
June 8, 2006
(831) 624-0811
(818) 238-3940
lwasserman@sandiego.
gov
(619) 758-2370
(619) 758-2309
[email protected]
(510) 278-5910
(510) 278-6547
[email protected]
(530) 753-6400
ext. 224
(530) 753-7030
Brian.whitaker@CH2M
.com
(805)371-7817
ext. 12
(805)371-7818
[email protected]
(510) 287-1496
(510) 287-1351
[email protected]
(425)985-5636
(425)468-3100
Paul.Worlie@liquidenbi
ro.com
(858)481-8106
(858)481-9455
[email protected]
(925) 210-2453
(925) 937-9026
22
Name
Clayton Yoshida
Mary Zauner
June 8, 2006
Initials
Company
City of Los Angeles
Watershed Protection Division
1149 S. Broadway, 10th floor
Sanitation Districts of Los Angeles
County
P.O. Box 4998
Whittier, CA 90607
E-mail Address
Clayton.Yoshida@lacit
y.org
[email protected]
Phone
Number
(213) 485-3937
(562)699-7411
X 2820
Fax Number
(213) 485-3939
(562)692-5103
23
Name
Initials
Company
E-mail Address
Phone
Number
Fax Number
LEGEND:
BLACK = indicates current information.
RED = indicates inaccurate information. If corrections are not made, listing will be deleted.
GREEN = indicates new information or changes since the last meeting.
June 8, 2006
24
TRI-TAC SPONSOR REPRESENTATION OCTOBER 2006
League of
California Cities
CASA
Rodney Anderson
Phil Bobel
Rod Cruze
Valerie Housel
Steve Medbery
Dave Tucker
Layne Baroldi
Sharon Green
Ben Horenstein
Terrie Mitchell
Dave Tompkins
Dave Williams
CWEA
Maura Bonnarens
Gail Chesler
Jim Clark
Jim Colston, Tri-TAC Vice Chair
Bob Gillette
Tom Grovhoug
Jacqueline Kepke
Monica Oakley
Chuck Weir, Tri-TAC Chair
Tri-TAC Liaison Representation
BACWA
CASA
SCAP
CVCWA
Dave Williams
Roberta Larson, Marlaigne Hudnall
Ray Miller
Warren Tellefson
COMMITTEES
AIR
LAND
WATER
Committee Chair:
Jackie Kepke
Committee Co-Chairs:
Layne Baroldi & Maura Bonnarens
Committee Co-Chairs: Ben Horenstein & Terrie Mitchell
Finance Subcommittee Chair: Dave Bruns
Gregory Adams
James H. Clark
Joyce Clark
Dipak Patel
Paul Pau
John Schroeter
Jennifer Smith
Wynn W. Yin
Jeff Berk
Maura Bonnarens
Diane Gilbert
Robert Gillette
Marlaigne Hudnall
Bonnie Jones
Ray Kearney
Craig Lekven
Larry Maston
Ed McCormick
Mike Moore
Liz Ostoich
Ruben Robles
Mike Sullivan
Karen Vargas
Rodney Andersen
Rebecca Bjork
Phil Bobel
Anne Briggs
Donna Chen
Gail Chesler
Joyce Clark
Jim Colston
Rod Cruze
Sharon Green
Tom Grovhoug
Vaughn Henrie
Tom Hall
F. Patrick Hassey
Lydia Holmes
Valerie Housel
Jim Kelly
Jacqueline Kepke
Roberta Larson
Leslie Lundgren
Rich Luthy
Jim Marchese
Patricia McGovern
Steve Medbery
Terrie Mitchell
Margie Nellor
Monica Oakley
Bob Reid
Martha Rincon
John Schroeter
Jennifer Smith
Bonnie Teaford
Warren Tellefson
Dave Tompkins
Melissa Thorme
Jerry Troyan
David W. Tucker (SJ)
David L. Tucker
Roger W. Turner
Ray Von Dohren
Larry Wasserman
Chuck Weir
Dave Williams
Clayton Yoshida
Cal-FOG Work Group
Chair: Trish Maguire
Steering Committee:
Nick Arhontes
Jennifer Auton
Jack Dickinson
Javad Ghaffari
Terrie Mitchell
Linda Shadler
John Shaffer
C:\My Documents\Tri-TAC\2006 Packets\October 2006\Committee_Assignments_10-12-06.doc
25
Tri-TAC LAND COMMITTEE AGENDA
October 12, 2006
Item
Topic
No.
1.
Legislative Update
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
SJVAPCD Proposed Rule 4565
Kern County Initiative/Ordinance
• Hardship Appeals
• Response
• Injunction
Biosolids Management Capacities
Regional Facilities Update
• Bay Area Agencies
• So. Cal. & C.V.
Local Ordinances
• Solano Co.
• Arizona Counties
Cement Industry Update
CASA BPM Update
Regional Associations
• SCAP
• BACWA
• CVCWA
ISCORS/Radioactivity
Biosolids Research
Federal/State Issues
Other
Lead Person
D. Gilbert
Est. Time
(minutes)
5
E. Ostoich
15
D. Gilbert
L. Baroldi
L. Baroldi
L. Baroldi
M. Bonnarens
5
10
5
10
M. Bonnarens
E. Ostoich
10
10
M. Ramanathan
M. Bao
K. Soares
E. McCormick
5
5
5
10
D. Gilbert
E. McCormick
B. Gillette
B. Jones
M. Bao
All
All
5
5
5
5
5
5
5
Attachments
Nos. 1 & 2
No. 3
C:\My Documents\Tri-TAC\2006 Packets\October 2006\LAND_COMMITTEE_AGENDA_10-12-06.doc
26
Land Attachment No. 1
BERNARD C. BARMANN, SR. (California Bar No. 60508)
County Counsel
CHARLES F. COLLINS (California Bar No. 128845)
Deputy County Counsel
COUNTY OF KERN
1115 Truxtun Avenue, Fourth Floor
Bakersfield, CA 93301
Telephone: (661) 868-3800
Facsimile: (661) 868-3805
E-mail:
[email protected]
1
2
3
4
5
6
MICHAEL M. HOGAN (California Bar No. 95051)
HOGAN GUINEY DICK LLP
7 225 Broadway, Suite 1900
San Diego, CA 92101
8 Telephone: (619) 687-0282
Facsimile: (619) 234-6466
9 E-mail:
[email protected]
10
Attorneys for Defendants
COUNTY OF KERN and KERN
11 COUNTY BOARD OF SUPERVISORS
12
UNITED STATE DISTRICT COURT
13
CENTRAL DISTRICT OF CALIFORNIA
14
15
16
CITY OF LOS ANGELES, et al.,
Plaintiffs,
17
v.
18
COUNTY OF KERN, KERN COUNTY
19 BOARD OF SUPERVISORS,
20
Defendants.
21
22
.
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. CV 06-5094 GAF (VBKx)
DECLARATION OF ELLEN Z.
HARRISON IN OPPOSITION TO
PLAINTIFFS= MOTION FOR
PRELIMINARY INJUNCTION
Judge: Hon. Gary A. Feess
Date:
Time:
Room: 740
October 16, 2006
9:30 a.m.
23
24
25
26
I, Ellen Z. Harrison, declare as follows:
1.
I am the Director of the Cornell Waste Management Institute at Cornell
University in Ithaca, New York. I have held this position from 1993 to the present. I have been
27
28
1
DECLARATION OF ELLEN Z. HARRISON IN OPPOSITION TO PLAINTIFFS= MOTION FOR PRELIMINARY
INJUNCTION
27
1
involved in research and public information and education concerning the land application of
2
sewage sludge to agricultural lands for over a decade. I have published numerous papers and
3
organized and participated in symposia at professional conferences. In order to assure a lack of
4
bias, it is my policy that the Institute does not to accept funding for research or outreach from any
5
entity that has a financial stake in the outcome of the work. A summary of my education,
6
experience and publications is set forth in my curriculum vitae, a true and correct copy of which
7
is attached hereto as Exhibit A and is incorporated herein by this reference.
8
2.
I have been retained by attorneys for defendants County of Kern and Kern
9
County Board of Supervisors (AKern County@) to provide expert opinion and testimony in this
10
lawsuit. I have personal knowledge of the facts stated below and, if called to testify concerning
11
them, I could do so competently.
12
3.
In light of my expertise in the field of the land application of sewage
13
biosolids, I was asked to serve as a member of the National Academies of Sciences National
14
Research Council (NRC) Committee that evaluated the U. S. Environmental Protection Agency=s
15
(EPA) standards for the land application of biosolids. The NRC=s evaluation was performed at
16
the request of and sponsored by the EPA. The results of the evaluation were published in 2002 in
17
a report titled ABiosolids Applied to Land: Advancing Standards and Practices (2002).@ The
18
complete text of the report consists of 345 pages and is available for review on-line at
19
www.nap.edu/books/0309084865/html/. A true and correct copy of the ASummary@ of the
20
report, which describes the Committee=s task and summarizes the major findings and
21
recommendations concerning health effects and chemical and pathogen standards, is attached
22
hereto as Exhibit B and is incorporated herein by this reference.
23
4.
The tasks of the Committee were (1) to review risk-assessment methods and
24
data to establish concentration limits for chemical pollutants in biosolids, (2) to review current
25
standards for pathogen elimination in biosolids and their adequacy for protecting the public
26
health, and (3) to explore whether approaches for pathogen risk assessment can be integrated with
27
28
4
INJUNCTION
28
1
those for chemical risk assessment. However, the Committee was not asked and did not make
2
any determination whether EPA should continue to promote land application of biosolids, and
3
was not asked to judge the adequacy of individual standards in protecting human health. (Report,
4
pp. 2-3.)
5
5.
The Committee made the following Overarching Findingy:
6
There is no documented scientific evidence that the Part 503 rule has failed to protect public
7
health. However, additional scientific work is needed to reduce persistent uncertainty about the
8
potential for adverse human health effects from exposure to biosolids. There have been anecdotal
9
allegations of disease, and many scientific advances have occurred since the Part 503 rule was
10
promulgated. To assure the public and to protect public health, there is a critical need to update
11
the scientific basis of the rule to (1) ensure that the chemical and pathogen standards are
12
supported by current scientific data and risk-assessment methods, (2) demonstrate effective
13
enforcement of the Part 503 rule, and (3) validate the effectiveness of biosolids-management
14
practices. (Report, p. 4.) In summary, the Report found the Part 503 regulations were based on
15
outdated science, the EPA used an unreliable 1988 survey to identify hazardous chemicals in
16
sewage sludge when it set the regulatory standards, other chemicals have since been found to be
17
of potential concern, and there is a serious lack of health-related information about populations
18
exposed to treated sewage sludge.
19
6.
The Committee also made specific recommendations on what EPA needed to
20
do to assure the public and to protect public health. These recommendations are set forth in the
21
Summary and are found at the end of each chapter of the Report. With respect to the AHealth
22
Effects@ of land applying biosolids, the Committee found that toxic chemicals, infectious
23
organisms and endotoxins or cellular material may be present in biosolids. The Committee also
24
found that no epidemiological studies have been conducted on exposed populations (i.e., workers
25
and nearby residents) near land application sites. Accordingly, the Committee concluded that the
26
EPA should gather epidemiological data, investigate allegations of health incidents and study
27
28
5
INJUNCTION
29
1
more rigorously the exposure and health risks, or lack thereof, in worker and community
2
populations exposed to biosolids. (Report, pp. 5-6.)
3
7.
With respect to the Part 503 chemical and pathogen standards for biosolids
4
which were promulgated in 1993, the Committee found that they were based on out-dated
5
science. The Committee also found that EPA does not have an adequate program to ensure
6
compliance with the Part 503 regulations and has not documented the effectiveness of its
7
prescribed management practices. In order to assure the public that the Part 503 standards are
8
protective of human health, the Committee concluded that EPA must demonstrate that (1) its
9
chemical limits and pathogen-reduction requirements are supported by current scientific data and
10
risk-assessment methods, and (2) that the Part 503 regulations are being enforced. (Report, p. 7.)
11
8.
With respect to the Part 503 standards for chemicals in biosolids, the
12
Committee specifically found that Athe current limits cannot with confidence be stated to be
13
adequately protective for all of the regulated pollutants.@ The Committee determined the
14
chemical selection process used to identify chemicals of concern for the risk assessment is now
15
outdated and that there is a need to characterize the concentrations and distributions of chemicals
16
now present in biosolids because additional chemicals not included in the original analyses have
17
now been identified as new concerns. For example, chemicals such as pharmaceuticals and toxic
18
odorants have not been not adequately investigated. (Report, pp. 10-13, 239-242.)
19
9.
With respect to the Part 503 standards for pathogens in biosolids, the
20
Committee found that no risk assessments were conducted to establish the existing standards, that
21
some exposure pathways not considered, and that the EPA did not address the potential for
22
surface water contamination by run-off, groundwater contamination or the secondary
23
transmission of disease. The Committee also found the available methods for detecting and
24
quantifying pathogens in biosolids have not been validated and, as a result, field and laboratory
25
studies must be conducted to verify that Class A and Class B treatment processes actually
26
perform as assumed by their engineering and design principles. Finally, the Committee
27
28
6
INJUNCTION
30
1
concluded that the Part 503 risk assessments were out-dated and have not been modified to
2
account for new methods and policies, including Aimprovements in measuring and predicting
3
adverse health effects, advances in measuring and predicting exposure, explicit treatment of
4
uncertainty and variability, and improvements in describing and communicating risk. (Report,
5
pp. 13-14, 97-98, 156.)
10.
6
Biosolids contain a diverse array of chemical contaminants resulting from
7
the flow of wastewater coming from homes, businesses and industries. Wastewater treatment
8
processes are designed to clean the water to levels that make it acceptable for discharge. Sewage
9
sludge is a residual that results from these processes. Many contaminants are not destroyed or
10
degraded during the treatment process. Many of those contaminants have an affinity for sludge
11
and thus end up in the sludge residuals. Before they can be land applied, sludges are treated to
12
reduce pathogens and their potential to attract vectors (like flies). They are not treated to reduce
13
chemical contaminants.
11.
14
The Part 503 regulations address only 8 chemical contaminants. The
15
Committee found the EPA=s basis for limiting the rules to only 8 contaminants was flawed and
16
based on inadequate data. For example, some categories of chemicals, such as pharmaceuticals,
17
personal-care products, and chemicals added to condition and de-water sewage sludge, that are
18
especially likely to be present in domestic sewage, remain largely unstudied in biosolids. Only a
19
few studies have been conducted on the wide variety of odorants present in sewage sludge. New
20
data and other considerations demonstrate the need for a new hazard assessment of biosolids to
21
expand the suite of chemicals evaluated. As a result, the Committee recommended that AEPA
22
should reassess the standards for the regulated chemicals and conduct another chemical selection
23
process to determine whether additional chemicals should be considered for regulation.@ (Report,
24
pp. 12, 176.)
25
26
12.
The Committee also found that data regarding the occurrence of organic
chemicals in biosolids is needed for additional chemical categories, such as flame retardants (e.g.,
27
28
7
INJUNCTION
31
1
brominated dphenyl ethers), surfactants, chlorinated paraffins, nitro and polycyclic musks,
2
pharmaceuticals, odorants, and chemicals used to treat sewage sludge (e.g., dewatering agents).
3
There is no routine testing performed for these chemicals and few sludges have been tested.
4
However, recent research has documented the presence of over 500 organic chemicals in sewage
5
sludges. While a new and emerging field of study, research to date indicates that many of these
6
contaminants persist in soils after they are applied to the land. (Report, p. 224.)
7
13.
Testing for these chemicals requires methods capable of detecting them at
8
appropriate concentrations. One criterion that resulted in the EPA declining to regulate any
9
organic chemicals in sewage sludges was whether the chemical was detected in a 1988 survey of
10
sludges conducted by the EPA. The Committee pointed out that the high limits of detection in this
11
survey resulted in many samples in which the chemicals were not detected. Thus, many
12
chemicals that may have been present in significant concentrations were inappropriately
13
eliminated from further consideration. The organic chemical testing performed on biosolids as
14
required in California is used to determine whether a material qualifies as a hazardous waste. For
15
organic chemicals, the required testing is not sensitive enough to detect levels that may be
16
environmentally relevant. In addition, the testing required in California addresses only a small
17
number of toxic organic chemicals and does not address many of the chemicals that are or may be
18
present in sewage biosolids.
19
14.
Application to crops used for animal feed of biosolids containing persistent,
20
bioaccumulative chemicals provides a pathway for these chemicals to enter the human food
21
chain. Biosolids particles adhere to the plants and are harvested along with the plants and are
22
thus part of the material ingested by the animals where they may accumulate in meat or milk.
23
15.
Many of the pathogens in wastewater that are not destroyed through the
24
treatment processes are retained in the sludge. Treatment to reduce pathogen concentrations in
25
sludges is required before they can be land applied. Since it is not feasible to test for all
26
pathogens, testing for so-called Aindicator organisms@ is used to demonstrate the reduction in
27
28
8
INJUNCTION
32
1
pathogen concentration. To be useful, these indicator organisms would ideally be present in the
2
sludge before treatment and would be absent or reduced in the treated biosolids. They would be
3
organisms that are resistant to treatment so that their reduction would indicate that less hardy
4
organisms that are not tested would also be reduced. There is scientific agreement that E. coli
5
which is used as an indicator is present in high numbers in sludges, but it is not very hardy.
6
Ascaris is used as an indicator and while it is hardy, it is often not detectable in sludges before
7
treatment. Thus it is important that when Ascaris is used as an indicator, the sludge be tested
8
before and after treatment. If tested only after treatment and found to be absent, it is not clear
9
whether this is due to effective treatment or to absence in the original material.
10
16.
Recent data demonstrates that for certain wastewater treatment processes
11
(digestion followed by centrifugation), testing methods used to determine compliance with
12
pathogen reduction requirements fail to detect viable pathogens. The Hyperion Wastewater
13
Treatment Plant in Los Angles, California, uses such a process. Samples tested after digestion,
14
but before centrifugation, may show acceptably low levels of pathogens. However, testing after
15
centrifugation may show levels many orders of magnitude higher. The reason for this is not clear,
16
but an hypothesis is that organisms may be in a viable but not culturable state after digestion so
17
that detection methods based on laboratory culturing does not detect them. Something during the
18
centrifugation process then reactivates them and allows them to be detected. Thus sludges may
19
be applied to land that have far higher pathogen concentrations than reported.
20
This declaration was executed on October 2, 2006, at Ithaca, New York.
21
I declare under penalty of perjury under the laws of the United States of America
22
and the State of California that the foregoing is true and correct.
23
24
__________________________________
ELLEN Z. HARRISON
25
26
27
28
9
INJUNCTION
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
1
2
3
4
5
6
7
8
9
10
11
12
13
ROCKARD J. DELGADILLO
City Attorney (SBN 125465)
CHRISTOPHER M. WESTHOFF
Assistant City Attorney (SBN 63176)
KEITH W. PRITSKER
Deputy City Attorney (SBN 87158)
CITY OF LOS ANGELES
1800 City Hall, 200 N. Main Street
BINGHAM MCCUTCHEN LLP
JAMES J. DRAGNA (SBN 91492)
THOMAS S. HIXSON (SBN 193033)
MARC R. BRUNER (SBN 212344)
355 South Grand Avenue, Suite 4400
Telephone: (213) 680-6400
Facsimile: (213) 680-6499
Email: [email protected]
[email protected]
[email protected]
Attorneys for Plaintiffs City of Los Angeles,
Responsible Biosolids Management, Inc.,
R&G Fanucchi, Inc. and Sierra Transport,
Inc.
BEVERIDGE & DIAMOND P.C.
JAMES B. SLAUGHTER, DC
Bar No. 417273
GARY J. SMITH (SBN 141393)
1350 I Street, N.W., Suite 700
Washington, DC 20005-3311
Telephone: (202) 789-6000
Facsimile: (202) 789-6190
Email: [email protected]
[email protected]
[See signature pages for other
parties and counsel.]
14
15
16
17
18
19
20
21
22
23
24
25
26
27
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CITY OF LOS ANGELES; ORANGE
COUNTY SANITATION DISTRICT;
COUNTY SANITATION DISTRICT NO. 2
OF LOS ANGELES COUNTY;
RESPONSIBLE BIOSOLIDS
MANAGEMENT, INC.; R&G FANUCCHI,
INC.; SHAEN MAGAN, both individually
and d/b/a HONEY BUCKET FARMS and
TULE RANCH/MAGAN FARMS;
WESTERN EXPRESS, INC.; SIERRA
TRANSPORT, INC.; CALIFORNIA
ASSOCIATION OF SANITATION
AGENCIES,
Plaintiffs,
v.
No. CV 06-5094 GAF (VBKx)
MEMORANDUM OF
POINTS AND
AUTHORITIES IN
SUPPORT OF PLAINTIFFS’
MOTION FOR A
PRELIMINARY
INJUNCTION
Date: October 16, 2006
Time: 9:30 a.m.
Place: 255 East Temple St.,
Room 740
Judge: Hon. Gary A. Feess
COUNTY OF KERN; KERN COUNTY
BOARD OF SUPERVISORS,
Defendants.
28
SF/21685197.8/2021736-0000320512
MEMORANDUM RE: PRELIMINARY INJUNCTION MOTION
65
TABLE OF CONTENTS
1
Page
2
3
I.
INTRODUCTION ..........................................................................................1
4
II.
FACTUAL AND REGULATORY BACKGROUND ..................................3
5
A.
Biosolids And Their Use at Green Acres Farm ...................................3
6
B.
Regulations Governing Land Application of Biosolids.......................5
7
III.
STANDARD FOR A PRELIMINARY INJUNCTION ................................6
8
IV.
PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS..................8
A.
9
The Ban Violates The Dormant Commerce Clause.............................8
10
1.
The Kern Ban Is Discriminatory................................................8
11
2.
The Burdens On Commerce Outweigh Any Benefits .............10
12
B.
The Kern Ban Is Preempted By The Clean Water Act ......................13
13
C.
The Kern Ban Violates Equal Protection...........................................15
14
D.
The Kern Ban Is An Invalid Exercise Of The County’s Police
Power..................................................................................................15
E.
The Kern Ban Is Preempted By California Law ................................17
15
16
17
18
19
20
V.
California’s Regulatory Scheme..............................................18
2.
The Kern Ban Is Preempted.....................................................19
3.
The Kern Ban Falls Outside Any Savings Clause...................20
THE BALANCE OF THE HARDSHIPS TIPS SHARPLY IN
FAVOR OF GRANTING A PRELIMINARY INJUNCTION ...................21
A.
21
1.
Irreparable Harms to the Plaintiffs.....................................................21
22
1.
City of Los Angeles .................................................................21
23
2.
RBM, Sierra Transport, and Fanucchi Farms..........................22
24
B.
Irreparable Harm to the Environment ................................................23
25
C.
No Harm to Defendants .....................................................................24
26
D.
Preservation of the Status Quo...........................................................25
27
VI.
CONCLUSION ............................................................................................25
28
SF/21685197.8/2021736-0000320512
i
66
TABLE OF AUTHORITIES
1
Page
2
3
4
Cases
5
Alaska Airlines, Inc. v. City of Long Beach, 951 F.2d 977 (9th Cir.
1991) ..................................................................................................................11
6
Amoco Prod. Co. v. Gambell, 480 U.S. 531 [107 S.Ct. 1396, 94
L.Ed.2d 542] (1987) ..........................................................................................24
7
8
Arnel Development Co. v. City of Costa Mesa, 126 Cal. App. 3d 330
[178 Cal. Rptr. 723] (1981) ...............................................................................16
9
Associated Home Builders v. City of Livermore, 18 Cal. 3d 582 [135
Cal. Rptr. 41] (1976)....................................................................................15, 16
10
11
Azurix v. DeSoto County, No. 2-01-CV-428 FTM-29 DNF (M.D. Fl.
Sept. 7, 2001) ...............................................................................................12, 14
12
Blue Circle Cement, Inc. v. Bd. of County Comm’rs, 27 F.3d 1499
(10th Cir. 1994) .................................................................................................14
13
14
C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 [114 S.Ct.
1677, 128 L.Ed.2d 399] (1994) ...........................................................................8
15
Candid Enters. v. Grossmont Union High Sch. Dist., 39 Cal. 3d 878
[218 Cal. Rptr. 303] (1985) ...............................................................................20
16
17
Chem. Waste Mgmt., Inc. v. Hunt, 504 U.S. 334 [112 S.Ct. 2009, 119
L.Ed.2d 121] (1992) ............................................................................................9
18
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 [105
S.Ct. 3249, 87 L.Ed.2d 313] (1985) ..................................................................15
19
20
City of Philadelphia v. New Jersey, 437 U.S. 617 [98 S.Ct. 2531, 57
L.Ed.2d 475] (1978) ..................................................................................8, 9, 10
21
County Sanitation Dist. No. 2 of Los Angeles County v. County of
Kern, 127 Cal. App. 4th 1544 [27 Cal. Rptr. 3d 28] (2005) ...........17, 19, 21, 24
22
23
Doran v. Salem Inn, Inc., 422 U.S. 922 [95 S.Ct. 2561, 45 L.Ed.2d
648] (1975) ........................................................................................................22
24
E&J Gallo Winery v. Andina Licores S.A., 446 F.3d 984 (9th Cir.
2006) ..............................................................................................................7, 25
25
26
Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep’t of Natural Res.,
504 U.S. 353 [112 S.Ct. 2019, 119 L.Ed.2d 139] (1992)....................................8
27
Geier v. Am. Honda Motor Co., 529 U.S. 861 [120 S.Ct. 1913, 146
L.Ed.2d 914] (2000) ....................................................................................14, 21
28
SF/21685197.8/2021736-0000320512
ii
67
(continued)
1
2
3
4
Page
Great Western Gun Shows v. County of Los Angeles, 27 Cal. 4th 853
[118 Cal. Rptr. 2d 746] (2002) ....................................................................19, 20
5
Healy v. Beer Inst., 491 U.S. 324 [109 S.Ct. 2491, 105 L.Ed.2d 275]
(1989).................................................................................................................11
6
Hillsborough County v. Automated Med. Labs., 471 U.S. 707 [105
S.Ct. 2371, 85 L.Ed.2d 714] (1985) ..................................................................13
7
8
Int’l Bd. of Elec. Workers v. City of Gridley, 34 Cal. 3d 191 [193 Cal.
Rptr. 518] (1983) ...............................................................................................18
9
Int’l Paper Co. v. Ouellette, 479 U.S. 481 [107 S.Ct. 805, 93 L.Ed.2d
883] (1987) ........................................................................................................14
10
11
Kassel v. Consol. Freightways Corp., 450 U.S. 662 [101 S.Ct. 1309,
67 L.Ed.2d 580] (1981) .....................................................................................10
12
Kleenwell v. Nelson, 48 F.3d 391 (9th Cir. 1995) ..........................................8, 9, 10
13
LGS Architects, Inc. v. Concordia Homes of Nev., 434 F.3d 1150 (9th
Cir. 2006) .............................................................................................................7
14
15
O’Brien v. Appomattox County, 2002 WL 31663227 (W.D. Va. 2002) ..........12, 14
16
Or. Waste Sys. v. Dep’t of Envtl. Quality, 511 U.S. 93 [114 S.Ct.
1345, 128 L.Ed.2d 13] (1994) .............................................................................9
17
People ex rel. Seal Beach Police Officers Ass’n v. City of Seal Beach,
36 Cal. 3d 591 [205 Cal. Rptr. 794] (1984).......................................................17
18
19
Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373
(6th Cir. 1995) ...................................................................................................23
20
Pike v. Bruce Church, 397 U.S. 137 [90 S.Ct. 844, 25 L.Ed.2d 174]
(1970)...................................................................................................................8
21
22
Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429 [98 S.Ct. 787, 54
L.Ed.2d 664] (1978) ..........................................................................................12
23
Rockford Bd. of Educ. v. Illinois State Bd. of Educ., 150 F.3d 686 (7th
Cir. 1998) ...........................................................................................................22
24
25
Romer v. Evans, 517 U.S. 620 [116 S.Ct. 1620, 134 L.Ed.2d 855]
(1996).................................................................................................................15
26
Rum Creek Coal Sales v. Caperton, 926 F.2d 353 (4th Cir. 1991) ........................22
27
Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197 (2d Cir. 1970) ...............23
28
SF/21685197.8/2021736-0000320512
iii
68
(continued)
1
2
3
4
Page
Sherwin-Williams Co. v. City of Los Angeles, 4 Cal. 4th 893 [16 Cal.
Rptr. 2d 215] (1993) ..........................................................................................17
5
Sierra Club v. United States Forest Serv., 843 F.2d 1190 (9th Cir.
1988) ..................................................................................................................24
6
Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) ................................................15
7
Synagro-WWT, Inc. v. Rush Twp., 204 F. Supp. 2d 827 (M.D. Pa.
2002) ..................................................................................................................12
8
9
10
U & I Sanitation v. City of Columbus, 205 F.3d 1063 (8th Cir. 2000) ............11, 12
United States v. Manning, 434 F. Supp. 2d 988 (E.D. Wash. 2006)......................12
11
Valley Vista Servs., Inc. v. City of Monterey Park, 118 Cal. App. 4th
881 [13 Cal. Rptr. 3d 433] (2004) .....................................................................18
12
Warren v. City of Athens, 411 F.3d 697 (6th Cir. 2005) ........................................22
13
Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) ...........................................7
14
Wash. State Bldg. & Constr. Trades Council v. Spellman, 518 F.
Supp. 928 (E.D. Wash. 1981)............................................................................10
15
16
Waste Resource Techs. v. Dep’t of Public Health, 23 Cal. App. 4th
299 [28 Cal. Rptr. 2d 422] (1994) .....................................................................21
17
Welch v. Rappahannock County, 888 F. Supp. 2d 753 (W.D. Va.
1995) ..................................................................................................................14
18
19
Zepeda v. INS, 753 F.2d 719 (9th Cir. 1984)..........................................................21
20
Statutes
21
33 U.S.C. § 1345.................................................................................................3, 13
22
33 U.S.C. § 1370.....................................................................................................14
23
42 U.S.C. § 1983.....................................................................................................21
24
Cal. Pub. Res. Code § 40000 et seq. .......................................................................18
25
Cal. Pub. Res. Code § 40001(c)........................................................................18, 20
26
Cal. Pub. Res. Code § 40051 ............................................................................18, 20
27
Cal. Pub. Res. Code § 40053 ..................................................................................20
28
Cal. Pub. Res. Code § 41780 ..................................................................................18
SF/21685197.8/2021736-0000320512
iv
69
(continued)
1
2
Page
3
Cal. Res. Code § 40120.1 .......................................................................................20
4
Cal. Res. Code § 40201 ..........................................................................................20
5
Cal. Wat. Code § 13274..............................................................................17, 19, 20
6
7
8
9
Regulations
40 C.F.R. Part 503............................................................................................passim
58 Fed. Reg. 9248 (Feb. 19, 1993) .........................................................................13
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SF/21685197.8/2021736-0000320512
v
70
1
2
I.
INTRODUCTION
Defendant Kern County’s illegal biosolids ban (“Ban”) is forcing a sudden,
3
expensive and imprudent overhaul of biosolids management in Southern California
4
that requires this Court to issue a preliminary injunction. Plaintiffs City of Los
5
Angeles and its partners in biosolids management (Plaintiffs RBM, Sierra
6
Transport, and Fanucchi Farms) move this Court to enjoin the Ban during the
7
pendency of the case and allow the City of Los Angeles to continue doing what it
8
has done safely for 19 years – and for the last 12 years at its Green Acres Farm in
9
Kern County – recycling treated sewage sludge through land application to provide
10
11
plant nutrients for farming.
The City and its co-Plaintiffs easily meet the standards for a preliminary
12
injunction. The Kern Ban requires Green Acres to stop land applying biosolids on
13
January 22, 2007. Los Angeles is incurring large costs to prepare for the Ban and
14
faces millions of dollars in additional costs to find alternative, lawful ways of
15
managing 700 tons of biosolids per day. The City cannot recover those costs from
16
Kern County, even when the Ban is declared illegal; its damages are irreparable as
17
a matter of law. RBM, the City’s biosolids contractor, Sierra Transport, which
18
hauls the City’s biosolids to Green Acres, and Fanucchi Farms face the loss of
19
millions of dollars in contract revenues that imperils their businesses.
20
The Ban will also cause significant environmental harm, by forcing the City
21
to attempt to find new sites for handling biosolids, most likely in Arizona, which
22
means longer hauling distances and therefore increased fuel combustion and air
23
pollution. Only a preliminary injunction can prevent these harms and preserve the
24
status quo of almost two decades of safe, lawful land application of biosolids by
25
the City of Los Angeles, most of that time at Green Acres.
26
Allowing land application at Green Acres to continue during the case causes
27
no harm at all to Kern County. Preeminent biosolids scientists have visited Green
28
Acres and scrutinized its operations and data, and unequivocally declare that it is
SF/21685197.8/2021736-0000320512
71
1
well-run and poses no environmental or health risk. The declarants and their
2
expert opinions include:
3
Dr. Albert Page, Professor Emeritus of Soil Science at UC Riverside and
4
Chair of the 1996 National Academy of Sciences review of land application:
5
“Green Acres Farm has an unusually robust amount of data concerning its
6
biosolids and operations, which helps support my opinions that the land application
7
operations there are professionally conducted, are in compliance with regulatory
8
requirements, and present negligible risk to public health and the environment.”
9
Dr. Ian Pepper, Professor, University of Arizona Department of Soil,
10
Water, and Environmental Science, and Director of the National Science
11
Foundation Water Quality Center: “Based on the above data and observations, and
12
my experience with hundreds of land application sites, including many similar to
13
Green Acres, I conclude that if land application . . . at Green Acres Farm continues
14
during the period of an injunction there is negligible risk to human health or the
15
environment. In fact, the use of biosolids over the last 12 years at Green Acres has
16
plainly improved the soil quality and the farm is producing good crops.”
17
Dr. Chuck Gerba, Professor of Microbiology, University of Arizona, and
18
author of over 500 articles on pathogens in the environment: “Green Acres Farm
19
is one of the best monitored and professionally operated land application sites that
20
I have studied. It is well suited for the application of Class B or A biosolids.”
21
Tom Johnson, R.G. C.HG., Levine Fricke LFR, Walnut Creek, California,
22
a leading hydrogeology and groundwater expert: “I conclude that land application
23
of biosolids at Green Acres Farm has not affected groundwater quality in Kern
24
County. . . . [and] continued land application of biosolids by the City of Los
25
Angeles during this case is not expected to adversely affect groundwater quality.”
26
By contrast, neither Kern County nor any federal or state regulatory agency
27
has ever documented or asserted that the Farm causes any environmental problems.
28
In fact, the Kern County Water Resources Committee concluded after an
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1
investigation of groundwater issues that “land application can be permitted to
2
occur with appropriate regulatory oversight.” See Decl. of S. Stockton, Ex. 1 at 7
3
(Memorandum to Kern County Water Resources Committee from David Price,
4
Committee Secretary (Sept. 8, 2003)). The balance of harms weighs decisively in
5
favor of a preliminary injunction.
6
A preliminary injunction is also warranted because the Plaintiffs likely will
7
succeed on their claims that the Kern Ban is illegal. The Ban unconstitutionally
8
discriminates against Plaintiffs’ biosolids and heavily burdens commerce in
9
biosolids, without justification, in violation of the Commerce Clause. It is also
10
preempted by the Clean Water Act and violates California law.
11
II.
FACTUAL AND REGULATORY BACKGROUND
12
A.
13
Summarized below are some of the key facts from the nine fact and expert
14
declarations supporting this motion that discuss land application of biosolids, its
15
practice at Green Acres, and the regulations and science that support its safety.
16
Biosolids And Their Use at Green Acres Farm
All sewage treatment plants process wastewater from homes and businesses,
17
resulting in sewage sludge that must be recycled or disposed of. Most localities
18
further treat sewage sludge to produce a useful product – biosolids. Whether used
19
by farmers or home gardeners, biosolids provide an effective organic fertilizer rich
20
in nitrogen, phosphorous, potassium and trace elements that are essential for plant
21
growth. The other chemical and trace metal constituents of biosolids are miniscule
22
and do not pose any risk. See Decl. of Professor Pepper, ¶¶ 8-12; Decl. of
23
Professor Page, ¶¶ 12, 17-18; and Decl. of R. Fanucchi, ¶¶ 9-11.
24
In the late 1980s, Congress amended the Clean Water Act to phase out ocean
25
disposal of biosolids and directed EPA to develop comprehensive rules to govern
26
various methods of biosolids recycling and disposal, including land application. 33
27
U.S.C. § 1345. After years of research, in 1993 EPA adopted regulations
28
establishing a nationwide permit for land application. 40 C.F.R. Part 503. Los
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1
Angeles and many other wastewater agencies began land application programs in
2
the late 1980s and early 1990s in reliance on the development of new, scientifically
3
validated federal rules. California and other states likewise began building
4
regulatory programs to complement the federal rules by, for example, requiring
5
state approval for specific sites to receive biosolids. See, e.g., State Water
6
Resources Control Board (SWRCB or State Water Board), Order 2001-10 DWQ.
7
Los Angeles and RBM began land application of biosolids at the Green
8
Acres site in 1994. Kern County authorities in fact suggested the remote area
9
southwest of Bakersfield as an ideal location for land application. Stockton Decl.,
10
¶ 17. The crops at Green Acres (corn, wheat, sudan grass, alfalfa and milo) are
11
sold as animal feed for local dairy farms and for export. In reliance on federal and
12
state endorsement and approvals of land application, Los Angeles purchased Green
13
Acres in 1999 at a cost of $9.63 million. Decl. of T. Minamide, ¶¶ 20, 23, 27.
14
Kern County passed its first ordinance to regulate land application of
15
biosolids in 1998 (Ordinance G-6528), requiring reporting of site data to the
16
County and inspections of land application sites. In 1999, Kern County adopted a
17
new ordinance (Ordinance G-6638) phasing out by 2003 land application of “Class
18
B” biosolids (which have detectable amounts of microorganisms, but are made safe
19
to land apply by restrictions on human access and other measures). In response,
20
Los Angeles invested over $15 million to upgrade its wastewater treatment
21
facilities to produce pathogen-free Class A, Exceptional Quality (EQ) biosolids to
22
meet Kern County’s new requirements. In 2003, this achievement and others were
23
recognized when Los Angeles became only the second entity in the country to
24
receive the prestigious Environmental Management System certification from the
25
National Biosolids Partnership. Minamide Decl., ¶¶ 22, 30.
26
With Kern’s stricter requirements, the only remaining land application sites
27
in unincorporated County areas are the two sites operated by Plaintiffs, totaling
28
approximately 1% of County farmland under cultivation. Stockton Decl., ¶ 20.
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1
In June 2006, activists persuaded Kern voters to adopt an initiative banning
2
land application of biosolids in the County’s unincorporated areas. See Stockton
3
Decl., ¶ 19. The Ban exempts Bakersfield, Taft, Wasco, Delano and other Kern
4
cities, which will continue to land apply thousands of tons of biosolids in the
5
County within their city limits. Id., ¶ 20. The initiative plainly targeted out-of-
6
County biosolids and the statements and images propagated by Ban proponents
7
attacked the Plaintiffs. For example, the website of “Keep Kern Clean,” the
8
political action committee that spearheaded the initiative campaign, stated: “By
9
working together we can protect Kern County from becoming a dumping ground
10
for other cities’ and counties’ waste problems.” See www.keepkernclean.com.
11
The Ban’s proponents did not provide or rely upon data, analysis, public hearings
12
or reasoned deliberation. Decl. of L. Bahr, ¶ 24.
13
B.
14
EPA, California and preexisting Kern County regulations govern the
15
generation of biosolids by Los Angeles and their land application at Green Acres.
16
EPA’s overarching Part 503 rule, among other controls, (i) limits the amounts of
17
trace metals in biosolids and farm fields receiving biosolids; (ii) mandates
18
standards for reduction (Class B biosolids) or the essential elimination (Class A
19
biosolids) of microorganisms; and (iii) establishes minimum operational controls
20
such as limits on the amount of biosolids that may be applied (the agronomic rate)
21
and buffer zones for fields and waterways. Part 503 also imposes vigorous
22
monitoring, recordkeeping and reporting requirements to ensure that land appliers
23
comply with the federal regulations and do not pose a threat to public health or the
24
environment. 40 C.F.R. §§ 503.16-18.
25
Regulations Governing Land Application of Biosolids
In a recent letter relating to the Kern Ban, EPA states that “[w]astewater
26
agencies across the county have widely relied upon land application as a method
27
for managing biosolids,” and that land application is “clearly an important option
28
for municipalities to have” and “should be available to all municipalities whenever
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1
possible . . . .” Decl. of R. Larson, Ex. 1 at 2 (Letter from J. Hanlon, Director,
2
Office of Wastewater Management, U.S. EPA (Sept. 15, 2006)). EPA further
3
states that land application of biosolids to farmland “serves to help meet several
4
important environmental goals, including improving soil and preserving
5
increasingly scarce landfill capacity for wastes not appropriate for recycling.” Id.
6
EPA concludes: “Published research and major scientific reviews by EPA, the
7
Water Environment Research Foundation, and others, in addition to the results of
8
successful land application systems across the country, continue to demonstrate
9
that the practice, when conducted in compliance with the Part 503 requirements, is
10
11
protective of public health and the environment.” Id.
California further regulates land application of biosolids. The State Water
12
Board has adopted a General Order that encourages recycling of biosolids through
13
land application and prescribes detailed preconditions and management practices to
14
enhance environmental protection. The General Order is supported by a 600-page
15
Environmental Impact Report (EIR), finalized in 2004, which concluded after an
16
exhaustive analysis of scientific literature and data that land application of Class A
17
and B biosolids is safe and beneficial. See Bahr Decl., ¶¶ 15-17 & Ex. A. The
18
Regional Water Quality Control Boards (RWQCBs) rely on the General Order or
19
issue local permits to regulate land application. Land application at Green Acres is
20
permitted under both the State Water Board’s General Order and site specific
21
requirements issued by the Central Valley Regional Board. Minamide Decl., ¶ 26.
22
The General Order specifies protections for groundwater, including requiring
23
monitoring when the depth to groundwater is less than 25 feet (the depth to
24
groundwater at Green Acres far exceeds this). Decl. of T. Johnson, ¶¶ 22-25.
25
Groundwater monitoring at Green Acres was instituted in 1988, six years before
26
land application operations began, in conjunction with the use of effluent from the
27
City of Bakersfield for crop irrigation. See RWQCB, Monitoring and Reporting
28
Program No. 88-172 at 2.
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1
Before the Kern Ban, Kern County had in place a local ordinance that
2
supplemented the federal and State regulatory programs. Kern Co. Ord. Code, ch.
3
8.05 (repealed 2006) (“Pre-Ban Ordinance”). This Ordinance imposed
4
management, permitting, testing, reporting and inspection requirements more
5
stringent than those under Part 503 and the General Order. Among many other
6
requirements, the Pre-Ban Ordinance limited land applications to biosolids meeting
7
EPA Class A standards for pathogen reduction and EPA EQ standards for trace
8
metal concentrations. It also required field testing and analyses and provided for
9
unannounced inspections of land application sites. The Pre-Ban Ordinance
10
explicitly recognized that Class A EQ biosolids “are considered by [EPA] to be a
11
product . . . that can be applied as freely as any other fertilizer or soil amendment
12
to any type of land.” Pre-Ban Ordinance § 8.05.010. The City of Los Angeles and
13
RBM continue to comply with the Pre-Ban Ordinance. Minamide Decl., ¶ 26.
14
III.
15
STANDARD FOR A PRELIMINARY INJUNCTION
“The purpose of a preliminary injunction is to preserve rights pending
16
resolution of the merits of the case by the trial.” E&J Gallo Winery v. Andina
17
Licores S.A., 446 F.3d 984, 990 (9th Cir. 2006). “A preliminary injunction is
18
appropriate where plaintiffs demonstrate either: (1) a likelihood of success on the
19
merits and the possibility of irreparable injury; or (2) that serious questions going
20
to the merits were raised and the balance of hardships tips sharply in their favor.”
21
Id. (citation and quotation marks omitted); accord, Warsoldier v. Woodford, 418
22
F.3d 989, 993-94 (9th Cir. 2005).
23
“These two formulations represent two points on a sliding scale in which the
24
required degree of irreparable harm increases as the probability of success
25
decreases.” LGS Architects, Inc. v. Concordia Homes of Nev., 434 F.3d 1150,
26
1155 (9th Cir. 2006). “Thus, the greater the relative hardship to [plaintiff], the less
27
probability of success must be shown.” Warsoldier, 418 F.3d at 994 (citation and
28
quotation marks omitted).
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1
IV.
PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS
2
A.
3
The Kern Ban was specifically written to eliminate Plaintiffs’ biosolids
4
operations in isolated areas of Kern County, while the City of Bakersfield and
5
other Kern County cities remain free to apply biosolids in more densely populated
6
areas within their city limits. Green Acres poses no threat to public health or the
7
environment and the Ban has no legitimate local purpose. Kern County cannot, by
8
closing its borders to biosolids, arrogate to itself the determination of national and
9
state commerce and policy regarding biosolids.
The Ban Violates The Dormant Commerce Clause
10
The Dormant Commerce Clause prohibits discriminatory or burdensome
11
local or state regulations that interfere with Congress’ authority over interstate
12
commerce. See, e.g., Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep’t of Natural
13
Res., 504 U.S. 353, 360 [112 S.Ct. 2019, 119 L.Ed.2d 139] (1992). The
14
Commerce Clause embodies the “principle that our economic unit is the Nation . . .
15
[and] one state in its dealings with another may not place itself in a position of
16
economic isolation.” City of Philadelphia v. New Jersey, 437 U.S. 617, 623 [98
17
S.Ct. 2531, 57 L.Ed.2d 475] (1978) (internal citations omitted) (invalidating ban
18
on out-of-state waste). An ordinance is invalid under the Pike test if it either
19
discriminates against interstate commerce or imposes a burden on interstate
20
commerce that is “clearly excessive in relation to the putative local benefits.”
21
C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 390 [114 S.Ct. 1677,
22
128 L.Ed.2d 399] (1994) (citing Pike v. Bruce Church, 397 U.S. 137, 142 [90 S.Ct.
23
844, 25 L.Ed.2d 174] (1970)); Kleenwell Biohazard Waste & Gen. Ecology
24
Consultants, Inc. v. Nelson, 48 F.3d 391, 395 (9th Cir. 1995) (quotation marks
25
omitted). The Ban fails both tests.
26
27
28
1.
The Kern Ban Is Discriminatory
Under the first test of the Dormant Commerce Clause, discriminatory
regulations are per se invalid unless the proponent can show that “a legitimate local
SF/21685197.8/2021736-0000320512
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1
interest unrelated to economic protection is served by the regulation and no less
2
discriminatory alternative exists.” Kleenwell, 48 F.3d at 395. This rule of
3
presumptive invalidity applies even to a facially neutral regulation that is
4
discriminatory in purpose or effect. See Chem. Waste Mgmt., Inc. v. Hunt, 504
5
U.S. 334, 344 n.6 [112 S.Ct. 2009, 119 L.Ed.2d 121] (1992). The Kern Ban is just
6
another effort by a state or locality to close its borders to what it perceives as
7
undesirable wastes, a practice the U.S. Supreme Court has repeatedly struck down.
8
See, e.g., City of Philadelphia, 437 U.S. at 628 (overturning “the attempt by one
9
State to isolate itself from a problem common to many [disposal of solid waste]”);
10
see also Or. Waste Sys. v. Dep’t of Envtl. Quality, 511 U.S. 93, 99 [114 S.Ct. 1345,
11
128 L.Ed.2d 13] (1994).
12
The Ban’s discriminatory intent and effect are obvious: Plaintiffs’ biosolids
13
operations are outlawed, while Bakersfield and other cities in the County may
14
continue land application unaffected. The discriminatory animus that led to the
15
Ban is evident in the publicity generated by the Ban’s proponents. For example,
16
Keep Kern Clean ran a video advertisement stating: “Let’s all pitch in. A ‘yes’
17
vote on Measure E will get the sludge out. It’s time we tell L.A. that we've had
18
enough.” See www.keepkernclean.com; see also Stockton Decl., ¶ 19. Keep Kern
19
Clean also posted on its website and disseminated the following crude caricatures
20
directed at the Plaintiffs:
21
22
23
24
25
26
27
28
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1
Since the Kern Ban discriminates against interstate commerce, it can be
2
upheld only if it is based on a legitimate non-economic interest, furthers that
3
interest, and represents the least discriminatory alternative. Kleenwell, 48 F.3d at
4
395. The Kern Ban fails all three prongs. First, although the Ban nominally is
5
intended to protect the environment, the absence of evidence that Plaintiffs’
6
operations pose any environmental threat, and the prevalent anti-L.A. theme to the
7
campaign of the Ban’s proponents, show that “environmental protection” is
8
nothing more than pretext.1 Second, even if the stated interest were legitimate,
9
“the incantation of a purpose to promote the public health or safety does not
10
insulate a state law from Commerce Clause attack.” Kassel v. Consol. Freightways
11
Corp., 450 U.S. 662, 670 [101 S.Ct. 1309, 67 L.Ed.2d 580] (1981). Banning the
12
Plaintiffs’ biosolids operations cannot serve to protect the environment because the
13
evidence demonstrates that applying biosolids at Green Acres does not cause
14
environmental harm, and in any event, cities in Kern County will continue to land
15
apply Class B biosolids in more heavily populated areas. Third, there are less
16
discriminatory means to safeguard the environment, including the status quo.
17
Current EPA and California regulations and Kern’s Pre-Ban Ordinance
18
simultaneously permit land application and protect the environment by requiring
19
Class A EQ biosolids and limiting the areas and manner in which they are applied.
20
See, e.g., Wash. State Bldg. & Constr. Trades Council v. Spellman, 518 F. Supp.
21
928, 934-35 (E.D. Wash. 1981) (invalidating state waste import ban since federal
22
regulations were adequately safe); City of Philadelphia, 437 U.S. at 629.
23
2.
24
The Burdens On Commerce Outweigh Any Benefits
While the Ban’s discriminatory intent and effect render it illegal, the Ban
25
also must be struck down under the Pike test because it imposes burdens on
26
1
27
The Ban’s alternative justification, “loss of confidence” in Kern’s farm products
that might result from the Plaintiffs’ continued biosolids application, is precisely
the sort of economic protectionism the courts have consistently rejected.
28
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1
interstate commerce that substantially outweigh any purported benefits to Kern
2
County. The Ban will damage commerce in biosolids by eliminating 8,000 acres
3
of farm land used for land application and forcing the Plaintiff agencies to find
4
alternative means to manage more than 1,000 tons of biosolids daily. See Bahr
5
Decl., ¶ 24. The private Plaintiffs will lose substantial contract revenues,
6
significant investments, and possibly their businesses. See pp. 22-23, infra. The
7
Ban’s impacts are statewide and national, driving up prices for biosolids
8
management options in California and Arizona and creating costly uncertainty in
9
long-range planning for land application and other management options. Bahr
10
Decl., ¶¶ 22-30. Moreover, the Ban “must be evaluated not only by considering
11
the consequences of the [ordinance] itself, but also by considering how the
12
challenged [ordinance] may interact with the legitimate regulatory regimes of other
13
States and what effect would arise if not one, but many or every, State adopted
14
similar legislation.” Healy v. Beer Inst., 491 U.S. 324, 336 [109 S.Ct. 2491, 105
15
L.Ed.2d 275] (1989); see also U & I Sanitation v. City of Columbus, 205 F.3d
16
1063, 1072 (8th Cir. 2000) (ordinance’s burdens on commerce were “far from
17
trivial” after aggregating potential effects of several cities acting similarly).
18
Balanced against the disruption and increased expense of biosolids
19
management for the Plaintiffs and other California agencies, the Ban’s benefits, if
20
any, are trivial and speculative. Four leading experts have studied Green Acres
21
and opined that it poses no threat to the environment, human health, or
22
groundwater. See Decls. of C. Gerba, I. Pepper, A. Page & T. Johnson. A
23
regulation that imposes substantial burdens on interstate commerce, but provides
24
only speculative or illusory benefits, fails the Pike test and is unconstitutional
25
under the Dormant Commerce Clause. Alaska Airlines, Inc. v. City of Long Beach,
26
951 F.2d 977, 983 (9th Cir. 1991); see U & I Sanitation, 205 F.3d at 1070-71
27
(invalidating ordinance where only “sheer speculation” that it would achieve its
28
stated purposes); see also Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 450SF/21685197.8/2021736-0000320512
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81
1
51 [98 S.Ct. 787, 54 L.Ed.2d 664] (1978) (invalidating regulation limiting size of
2
trailers on highways that had only “illusory” safety benefits).
3
A recent Washington district court decision striking down a statewide
4
initiative that would have banned further importation of nuclear waste into the state
5
is a model for analyzing the Kern Ban. United States v. Manning, 434 F. Supp. 2d
6
988 (E.D. Wash. 2006). The court found the law discriminatory in purpose and
7
effect because it “benefits [Washington] while burdening ‘unrepresented’ out-of-
8
state interests.” Id. at 1011-12. The court observed that a state cannot “isolate”
9
itself from a problem common to all states, noting that Washington ships its
10
unwanted products out of state. Id. at 1012.2 The court also found that the
11
initiative failed the Pike balancing test, refusing to accept at face value its claimed
12
benefits, “where the state law is the product of the initiative process and not the
13
more detailed and deliberate approach normally associated with the state
14
legislature.” Id. at 1014.3
15
As in Manning, the Kern Ban is the result of a plebiscite motivated by fear
16
and bias against the Plaintiffs, with no foundation in deliberation or fact-finding.
17
The Ban illegally insulates Kern from lawful commerce in biosolids and causes
18
19
20
21
22
23
24
25
26
27
2
Kern County ships substantial amounts of waste from its large petroleum and
chemical industries to processing facilities in Los Angeles County and the City of
Los Angeles. See generally http://www.dtsc.ca.gov/HazardousWaste/HW_
Summary/HW_ Summary_Downloadable.cfm (providing reports detailing the
hazardous waste manifests California DTSC receives each year, including interjurisdictional shipments). Kern County also supports its economy through heavy
use of the Port of Los Angeles and Los Angeles International Airport, two facilities
with extensive environmental impacts on the City of Los Angeles.
3
While no federal court has yet ruled on whether a local ban on land application
violates the Commerce Clause, at least two courts have upheld such claims against
motions to dismiss. See O’Brien v. Appomattox County, 2002 WL 31663227
(W.D. Va. 2002); Synagro-WWT, Inc. v. Rush Twp., 204 F. Supp. 2d 827, 843
(M.D. Pa. 2002). Also, in an unpublished 2001 decision, the Middle District of
Florida issued a preliminary injunction against a county biosolids ban, as the
plaintiff’s Commerce Clause claim was likely to prevail. Azurix v. DeSoto County,
No. 2-01-CV-428 FTM-29 DNF (M.D. Fla. Sept. 7, 2001) (unpublished) (attached
as Exhibit A).
28
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1
substantial costs and impacts beyond its borders. The Ban does not advance a
2
valid local interest beyond what is already being accomplished by current law. For
3
all these reasons, Plaintiffs are likely to prevail on their Commerce Clause claim.
4
B.
5
Plaintiffs’ federal preemption claim is likely to succeed on the merits since
The Kern Ban Is Preempted By The Clean Water Act
6
the Kern Ban frustrates federal policy under the Clean Water Act (“CWA”) and its
7
Part 503 regulations to encourage land application of biosolids. State and local
8
laws that frustrate the objectives of federal regulations are just as invalid as if
9
Congress expressly provided for preemption by statute. See Hillsborough County
10
v. Automated Med. Labs., 471 U.S. 707, 712-713 [105 S.Ct. 2371, 85 L.Ed.2d 714]
11
(1985).
12
The Kern Ban conflicts with both Part 503 and Congressional intent. In
13
1987, Congress instructed EPA to develop a comprehensive national strategy to
14
manage biosolids, “adequate to protect public health and the environment,” and
15
encompassing “utilization of sludge for various purposes.” 33 U.S.C. § 1345(d).
16
EPA responded by adopting Part 503, a key part of which is beneficial reuse
17
through land application.4 See 40 C.F.R. § 503.3(b).
18
The CWA states that the “determination of the manner of disposal or use of
19
sludge is a local determination,” 33 U.S.C. § 1345(e), but this provision expressly
20
concerns only the discretion of local wastewater agencies to choose among Part
21
503 management methods. It does not provide municipal veto power over a
22
federal regulatory program such as land application. Similarly, like any other
23
savings clause, the CWA and Part 503 savings clauses (33 U.S.C. § 1370 and 40
24
25
26
27
4
Part 503 adopted land application as the single largest management option,
recognizing biosolids as “a valuable resource” and “useful as a fertilizer and a soil
conditioner” when land applied. 58 Fed. Reg. 9248, 9249 (Feb. 19, 1993). EPA
further stated its “preference…for local communities to reuse [biosolids] in
beneficial ways” and that it would “actively promote” such practices. Id. at 9258.
28
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83
1
C.F.R. § 503.5(b)) define residual state and local authority to enact additional
2
regulations, but do not displace the “ordinary working of conflict pre-emption
3
principles” and cannot save a state or local law that countermands a key
4
component of federal law. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 869-
5
72 [120 S.Ct. 1913, 146 L.Ed.2d 914] (2000). The CWA permits stricter local
6
regulations, but not those that eliminate an important component of the federal
7
scheme for addressing water pollution, such as land application of biosolids.
8
Federal courts have narrowly interpreted savings clauses allowing more
9
stringent local regulations but not sanctioning local bans, such as Kern’s, that
10
“upset the careful regulatory scheme established by federal law.” Geier, 529 at
11
870 (citations omitted). Thus, a local law, even if motivated by the same goal as
12
the CWA, “is pre-empted if it interferes with the methods by which the federal
13
statute was designed to reach this goal.” Int’l Paper Co. v. Ouellette, 479 U.S.
14
481, 490, 492-94 [107 S.Ct. 805, 93 L.Ed.2d 883] (1987) (preempting state court
15
nuisance suit under the CWA as exceeding the state’s mere “advisory role” on out-
16
of-state waste). See Blue Circle Cement, Inc. v. Bd. of County Comm’rs, 27 F.3d
17
1499, 1508 (10th Cir. 1994) (interpreting similar savings clause in RCRA and
18
concluding that “[O]rdinances that amount to an explicit or de facto total ban of an
19
activity that is otherwise encouraged by [federal law] will ordinarily be
20
preempted”).5
The Kern Ban conflicts with the CWA and Part 503, and Plaintiffs are likely
21
22
to succeed on their federal law preemption claim.
23
5
24
25
26
27
At least two federal courts have granted preliminary injunctions against local
bans like Kern’s, while looking favorably on claims that such bans are preempted
by the CWA. See Azurix v. DeSoto County, supra (issuing a preliminary
injunction against biosolids bans based on likelihood of prevailing on CWA
preemption claim) (Ex. A); O’Brien v. Appomattox Co., Va., 2002 WL 31663227
(W.D. Va. 2002) (granting preliminary injunction on state preemption and denying
motion to dismiss CWA preemption claim). Welch v. Rappahannock County, 888
F. Supp. 2d 753 (W.D. Va. 1995) held that a biosolids ban was not preempted, but
failed to undertake a complete and meaningful analysis of conflict preemption.
28
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1
C.
2
The Plaintiffs also are likely to succeed on their claim that the Kern Ban
The Kern Ban Violates Equal Protection
3
violates Equal Protection. The Ban irrationally and arbitrarily prohibits biosolids
4
application while leaving unregulated similarly situated persons who land apply
5
manure and other fertilizers, and it is not rationally related to a legitimate
6
government purpose. See, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473
7
U.S. 432, 446-50 [105 S.Ct. 3249, 87 L.Ed.2d 313] (1985) (invalidating local
8
ordinance as applied); Romer v. Evans, 517 U.S. 620, 631-36 [116 S.Ct. 1620, 134
9
L.Ed.2d 855] (1996) (invalidating constitutional provision created by referendum);
10
Silveira v. Lockyer, 312 F.3d 1052, 1090-92 (9th Cir. 2002) (invalidating statute).
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
D.
The Kern Ban Is An Invalid Exercise Of The County’s
Police Power
Plaintiffs also are likely to prevail on their claim that the Kern Ban is an
invalid exercise of Kern County’s police power, in violation of the California
Constitution. See Compl. at ¶¶ 110-14.
When a local ordinance has significant effects beyond local borders, as the
Kern Ban does here, the constitutionality of the ordinance is “measured by its
impact not only upon the welfare of the enacting community, but upon the welfare
of the surrounding region.” Associated Home Builders, Inc. v. City of Livermore,
18 Cal. 3d 582, 601 [135 Cal. Rptr. 41] (1976). As the California Supreme Court
has explained, “municipalities are not isolated islands remote from the needs and
problems of the area in which they are located.” Id. at 607. Thus, “[w]hen we
inquire whether an ordinance reasonably relates to the public welfare, inquiry
should begin by asking whose welfare must the ordinance serve.” Id. When a
local ordinance affects an entire region, “judicial inquiry must consider the welfare
of that region,” and it must determine whether the ordinance, “in light of its
probable impact, represents a reasonable accommodation of the competing
interests.” Id. at 607-09. See also Arnel Dev. Co. v. City of Costa Mesa, 126 Cal.
SF/21685197.8/2021736-0000320512
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1
App. 3d 330, 340 [178 Cal. Rptr. 723] (1981) (local initiative with regional effects
2
that did not effectuate a reasonable accommodation of competing regional interests
3
was an invalid exercise of the police power). As explained in the context of a city
4
enactment, these rules are designed to protect “the interests of nonresidents who
5
are not represented in the city legislative body and cannot vote on a city initiative.”
6
City of Livermore, 18 Cal. 3d at 607.
7
The Kern Ban has significant effects beyond Kern County’s boundaries, and
8
the Ban does not even attempt to accommodate competing interests on a regional
9
basis. As a result, the Ban is invalid.
10
As described below, the Ban will have significant adverse effects on Los
11
Angeles, including substantially increasing the costs of the City’s biosolids
12
management program by millions of dollars every year, and threatening the
13
continued viability of the City’s longstanding program to recycle and beneficially
14
reuse 100% of its biosolids, a program in which the City has invested tens of
15
millions of dollars. See pp. 21-22, infra; Minamide Decl., ¶¶ 31-40.
16
The Kern Ban will have even broader effects on public wastewater agencies
17
throughout California, by restricting already limited biosolids management options
18
and increasing biosolids costs for public wastewater agencies and their ratepayers.
19
See Bahr Decl., ¶¶ 3, 22-30.
20
The Kern Ban will have significant environmental effects beyond Kern’s
21
borders. By forcing the City to truck its biosolids to new distant locations,
22
including sites in Arizona requiring a 700-mile round-trip from the City, the Ban
23
will cause increased emissions of harmful air pollutants. Minamide Decl., ¶¶ 9, 46,
24
Ex. 2 (Assessment of Air Emissions of Transporting Biosolids for Beneficial Reuse
25
to Alternative Locations in Response to Kern County Land Application Ban).
26
Kern County is keenly aware of the Ban’s potential to cause significant
27
environmental impacts. In a case challenging its Pre-Ban Ordinance, which
28
banned land application of Class B biosolids, the California Court of Appeal
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1
ordered the County to prepare an Environmental Impact Report (EIR) to assess the
2
Ordinance’s environmental effects, “including effects occurring outside Kern
3
County.” County Sanitation Dist. No. 2 of Los Angeles County v. County of Kern,
4
127 Cal. App. 4th 1544, 1615 [27 Cal. Rptr. 3d 28] (2005). These adverse effects
5
included increased fuel consumption and vehicle emissions resulting from greater
6
hauling distances, and loss of landfill capacity from increased use of California’s
7
limited landfill space to dispose of bisolids. See id. at 1591. The Court expected
8
that the County’s EIR would address “the general welfare outside Kern County.”
9
Id. at 1615. But the County never prepared the EIR and thus never even examined,
10
let alone considered, the “general welfare” or the negative environmental and other
11
effects beyond Kern’s boundaries.
12
Because the Kern Ban does not account for its effects on the surrounding
13
region and does not accommodate competing regional interests, it is an invalid
14
exercise of the County’s police power.
15
E.
16
Finally, the Kern Ban is preempted by the California Integrated Waste
17
18
The Kern Ban Is Preempted By California Law
Management Act and the California Water Code. See Compl. at ¶¶ 96-109.
Under California law, “[i]f otherwise valid local legislation conflicts with
19
state law, it is preempted by such law and is void.” Sherwin-Williams Co. v. City
20
of Los Angeles, 4 Cal. 4th 893, 897 [16 Cal. Rptr. 2d 215] (1993) (citations and
21
quotation marks omitted). “[L]ocal legislation is contradictory to general law
22
when it is inimical thereto,” id. (citation and quotation marks omitted), would
23
“frustrate the declared policies and purposes” of state law, People ex rel. Seal
24
Beach Police Officers Ass’n v. City of Seal Beach, 36 Cal. 3d 591, 597 [205 Cal.
25
Rptr. 794] (1984), or discourages what state law encourages, Int’l Bd. of Elec.
26
Workers v. City of Gridley, 34 Cal. 3d 191, 201-02 [193 Cal. Rptr. 518] (1983).
27
28
Here, California has crafted a comprehensive scheme governing disposal of
solid wastes, including biosolids, through enactment of the Integrated Waste
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1
Management Act, Cal. Pub. Res. Code §§ 40000 et seq. (“IWMA”), California
2
Water Code section 13274, and related regulations. This scheme’s paramount goal
3
is the “reduction, recycling and reuse of solid waste generated in the state.” Cal.
4
Pub. Res. Code § 40000(e). The law declares that “market development is the
5
key” to achieving this goal. Id. § 40001(c). The Kern Ban is irreconcilable with,
6
and preempted by, this comprehensive scheme.
7
1.
8
9
California’s Regulatory Scheme
a.
The Integrated Waste Management Act
In 1989 California enacted the IWMA, which reflected the Legislature’s
10
recognition that “[b]y 1988, landfills throughout the state were nearly filled.”
11
Valley Vista Servs., Inc. v. City of Monterey Park, 118 Cal. App. 4th 881, 886 [13
12
Cal. Rptr. 3d 433] (2004); Cal. Pub. Res. Code § 40000 et seq. To achieve the
13
statutory goals of reduction, recycling and reuse of solid wastes, localities were
14
required to adopt waste management plans that would divert 25% of the solid
15
waste produced in their jurisdictions from landfills by 1995, and 50% by 2000.
16
Cal. Pub. Res. Code § 41780; see generally Valley Vista, 118 Cal. App. 4th at 886.
17
In implementing the IWMA, the Integrated Waste Management Board
18
and local agencies such as Kern “shall . . . [p]romote the following waste
19
management practices in order of priority: (1) Source reduction; (2) Recycling and
20
composting; [and] (3) Environmentally safe transformation and environmentally
21
safe land disposal.” Cal. Pub. Res. Code § 40051(a). The Legislature declared that
22
“market development” for recycled products “is the key” to the IWMA’s success.
23
Id. § 40001(c). The IWMA defines “solid waste” to include biosolids. Id. §
24
40191.
25
The IWMA was a significant factor in promoting land application of
26
biosolids in California. See County Sanitation Dist. No. 2, 127 Cal. App. 4th at
27
1567 (“This legislation caused sewage sludge to be diverted from disposal in
28
landfills in favor of recycling it as a fertilizer applied to agricultural land.”).
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1
Starting in 1989, the City of Los Angeles stopped landfilling biosolids, and began a
2
program, still in effect, of beneficially reusing 100% of its biosolids through land
3
application (and some composting). Minamide Decl., ¶ 19. Statewide,
4
approximately 69% of biosolids are beneficially reused through land application
5
and composting. Bahr Decl., ¶¶ 19-20.
6
b.
Water Code Section 13274
7
California Water Code section 13274 complements the IWMA. This 1995
8
statute directs the State Water Board (or the Regional Boards) to prescribe “waste
9
discharge requirements” for treated sewage sludge that “set minimum standards”
10
for its use “as a soil amendment or fertilizer in agriculture, forestry, and surface
11
mining reclamation,” including “provisions to mitigate significant environmental
12
impacts, potential soil erosion, odors . . . and any potential hazard to the public
13
health or safety.” Cal. Water Code §§ 13274(a)(1), (2). In implementing section
14
13274, the State Water Board determined that land application of biosolids is
15
“environmentally sound and preferable to non-beneficial disposal.” Bahr Decl.,
16
¶ 17, Ex. A, ¶ 11.
17
18
2.
The Kern Ban Is Preempted
The Kern Ban is preempted by the IWMA and Water Code section 13274.
19
Under California law, “when a statute or statutory scheme seeks to promote a
20
certain activity and, at the same time, permits more stringent local regulation of
21
that activity, local regulation cannot be used to completely ban the activity or
22
otherwise frustrate the statute’s purpose.” Great Western Gun Shows v. County of
23
Los Angeles, 27 Cal. 4th 853, 868 [118 Cal. Rptr. 2d 746] (2002) (emphasis
24
added). But that is precisely what the Kern Ban seeks to do.
25
There is a comprehensive, carefully crafted regulatory scheme designed to
26
encourage the safe and beneficial reuse of solid wastes, but the Kern Ban
27
unlawfully frustrates this scheme. It thwarts the purpose of the IWMA, which
28
provides that municipalities in California “shall . . . [p]romote [r]ecycling and
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1
composting” of solid waste. Cal. Pub. Res. Code § 40051(a)(2).6
2
The Kern Ban, which broadly prohibits the placement of biosolids (which is
3
also defined to include compost containing biosolids) onto the land surface,
4
eviscerates the City’s successful and longstanding recycling program at Green
5
Acres and makes it impossible to “recycle[e] and compost[]” biosolids, as the
6
IWMA contemplates. See Minamide Decl. ¶ 40. The Ban is therefore preempted.
7
See Candid Enters. v. Grossmont Union High Sch. Dist., 39 Cal. 3d 878, 885 [218
8
Cal. Rptr. 303] (1985).
9
Significantly, non-beneficial alternatives to landfilling (such as land disposal
10
and transformation, see Cal. Res. Code §§ 40201, 40120.1) are lower in priority
11
and may be permitted “at the discretion of the city of county.” Id. § 40051(a)(3).
12
But cities and counties lack that discretion as to recycling and composting, which
13
are assigned a higher priority. Id. § 40051(a)(2).
14
The Kern Ban bars what the IWMA says Kern “shall . . . [p]romote.” Id.
15
§ 40051(a)(2). It effectively outlaws “market development” for use of biosolids,
16
which the law declares “is the key” to the IWMA’s success. Id. § 40001(c).
17
3.
18
The Kern Ban Falls Outside Any Savings Clause
The Kern Ban is not saved by California Water Code section 13274(i). That
19
section provides that “[n]othing in this section restricts the authority of a local
20
government agency to regulate the application of sewage sludge and other
21
biological solids to land within the jurisdiction of that agency.” (Emphasis added);
22
cf. County Sanitation Dist. No. 2, 127 Cal. App. 4th at 1606 n. 69 (noting, but not
23
deciding, whether a complete ban is preempted). Regulate does not mean ban. See
24
Great Western, 27 Cal. 4th at 868 (distinguishing between “explicit or de facto
25
26
27
6
The municipal Plaintiffs recycle sewage sludge by sorting, collecting, cleansing,
and treating it, and then reconstituting and reusing it as a fertilizer and soil
amendment meeting marketplace quality standards. See Minamide Decl., ¶ 40;
Cal. Pub. Res. Code § 40180 (defining “recycle” and “recycling”).
28
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1
ban” and “an ordinance that falls short of imposing a total ban”).
2
Similarly, the IWMA’s savings clause – allowing localities to impose
3
“reasonable land use conditions” or other “restrictions . . . to prevent or mitigate
4
potential nuisances, if the conditions or restrictions do not conflict with . . . the
5
policies” of the IWMA, Cal. Pub. Res. Code § 40053 (emphasis added) – does not
6
contemplate complete local bans that, as here, do conflict with the policies of the
7
IWMA. Cf. Geier, 529 U.S. at 869-74 (general savings clause in federal statute
8
does not protect from preemption a state law that conflicts with or frustrates the
9
purpose of the federal statute).7
10
In sum, the Kern Ban is preempted by state law and cannot be saved by
11
characterizing it as a “regulation.”
12
V.
13
A.
14
17
18
19
20
21
22
23
Irreparable Harms to the Plaintiffs
1.
15
16
THE BALANCE OF THE HARDSHIPS TIPS SHARPLY IN
FAVOR OF GRANTING A PRELIMINARY INJUNCTION
City of Los Angeles
The Kern Ban, if allowed to take effect, will shut down Los Angeles’
longstanding land application program at Green Acres, at significant and
unrecoverable cost to the City. The City will lose much of its investment of more
than $25 million in public funds to purchase the Farm, improve it to support its
land application program, and upgrade its wastewater treatment facilities to comply
with Kern’s Pre-Ban Ordinance. The City will also incur, at a minimum, more
than $4 million annually in additional costs to relocate its biosolids program. See
Minamide Decl., ¶¶ 7, 8, 23, 31-37.
The financial harm to the City is unrecoverable, since municipalities cannot
24
25
26
27
7
California courts have allowed local regulations only if they “harmonize[] with
the [IWMA].” See, e.g., Waste Resource Techs. v. Dep’t of Public Health, 23 Cal.
App. 4th 299, 309 [28 Cal. Rptr. 2d 422] (1994) (upholding a local ordinance
granting an exclusive waste collection contract to a private waste hauler).
28
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1
sue under 42 U.S.C. § 1983 for monetary damages. See Rockford Bd. of Educ. v.
2
Illinois State Bd. of Educ., 150 F.3d 686, 688 (7th Cir. 1998) (“a city or other
3
municipality cannot bring suit under” section 1983). The lack of an adequate
4
remedy at law renders the harm irreparable. See Zepeda v. INS, 753 F.2d 719, 727
5
(9th Cir. 1984) (affirming preliminary injunction where plaintiffs “demonstrated a
6
possibility of irreparable injury by showing violations of their constitutional rights
7
which, if proven at trial, could not be compensated adequately by money
8
damages”); Rum Creek Coal Sales v. Caperton, 926 F.2d 353, 362 (4th Cir. 1991)
9
(irreparable harm shown where no monetary remedy is available).8
10
2.
11
RBM, Sierra Transport, and Fanucchi Farms
The private Plaintiffs who work at Green Acres, and their employees, will
12
also suffer irreparable harm. Because Plaintiff Responsible Biosolids
13
Management’s (RBM’s) contract with the City comprises the entirety of its
14
business, if the Kern Ban goes into effect as planned, RBM could be forced out of
15
business entirely, costing it more than $6 million in lost revenues per year.
16
Stockton Decl., ¶¶ 23-24. See Warren v. City of Athens, 411 F.3d 697, 711 (6th
17
Cir. 2005) (“financial ruin qualifies as irreparable harm”); see also Doran v. Salem
18
Inn, Inc., 422 U.S. 922, 932 [95 S.Ct. 2561, 45 L.Ed.2d 648] (1975) (same). RBM
19
would also suffer diminishment of its $700,000 investment in specialized land
20
application equipment. Stockton Decl., ¶¶ 22, 24. Even if RBM survives the Kern
21
Ban, relocating its operations to alternative locations, such as distant new sites in
22
Arizona, would require substantial investments in new facilities and would
23
dramatically increase the costs of doing business. Id., ¶¶ 25-31. The Ban would
24
also harm RBM’s employees, who may lose their jobs if biosolids can no longer be
25
used at Green Acres. Id., ¶ 35.
26
8
27
Plaintiff California Association of Sanitation Agencies and its members would
also be irreparably harmed by the Kern Ban and its regional and interstate effects.
See generally Bahr Decl. Accordingly, CASA joins in this motion.
28
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1
Plaintiff Sierra Transport, a family trucking business that hauls the City’s
2
biosolids to Green Acres, may also be forced out of business, as this hauling work
3
comprises more than 80% of its business. Decl. of M. Lutrel, ¶ 9. See
4
Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1382 (6th
5
Cir. 1995) (“impending loss” of plaintiff’s business “constitutes irreparable
6
injury”). Sierra Transport stands to lose $4 million per year in contract revenues,
7
and will suffer diminishments of its more than $5 million in investments in land,
8
improvements, and equipment to support its hauling business. Lutrel Decl., ¶¶ 9-
9
13. Sierra Transport’s employees would also likely lose their jobs. Id., ¶ 16.
10
Plaintiff R&G Fanucchi, Inc. (“Fanucchi Farms”), a 50 year-old family
11
farming business that contracts with the City, could also lose its contract revenues,
12
which are approximately $2 million per year. Fanucchi Decl., ¶¶ 2, 3, 6. See
13
Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir. 1970)
14
(threat to economic viability of family business is irreparable harm). The Ban
15
would also force Fanucchi Farms to sell at a considerable loss the $600,000 worth
16
of equipment it purchased to farm Green Acres. Fanucchi Decl., ¶ 7. As with
17
RBM and Sierra Transport, the Ban could also hurt Fanucchi’s employees. Id., ¶ 8.
18
Further, the Ban would eliminate the significant soil improvements that have
19
resulted from using biosolids over the years; if farming operations are able to
20
continue at Green Acres, purchasing chemical fertilizers would be required to
21
supply nutrients now supplied by biosolids, a significant expense. Id., ¶¶ 9-11.
22
23
In all, as a result of the Kern Ban, the Green Acres Plaintiffs stand to go out
of business and lose tens of millions of dollars each year.
24
B.
25
The Kern Ban will also cause significant harm to the environment. The City
Irreparable Harm to the Environment
26
of Los Angeles has prepared, as part of its project evaluation, an air emissions
27
report assessing the impact of relocating its biosolids land application program.
28
For Los Angeles alone, transporting biosolids to other locations, such as in
SF/21685197.8/2021736-0000320512
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93
1
Arizona, will produce up to a three-fold increase in emissions of particulate matter
2
and oxides of nitrogen, both of which have been identified as toxic air
3
contaminants and known to cause adverse health effects. Minamide Decl., ¶¶ 9,
4
46, Ex. 2 at i, ii, 1-2, 16-20, 30. See also County Sanitation Dist. No. 2, 127 Cal.
5
App. 4th at 1591 (summarizing reasonably foreseeable negative environmental
6
impacts flowing from Kern’s Pre-Ban Ordinance and requiring Kern to prepare an
7
Environmental Impact Report to evaluate those effects).
8
This is precisely the kind of “[e]nvironmental injury [which], by its nature,
9
can seldom be adequately remedied by money damages and is often permanent or
10
at least of long duration, i.e., irreparable.” Sierra Club v. United States Forest
11
Serv., 843 F.2d 1190, 1195 (9th Cir. 1988) (quoting Amoco Prod. Co. v. Gambell,
12
480 U.S. 531, 545 [107 S.Ct. 1396, 94 L.Ed.2d 542] (1987)). This demonstrated,
13
irreparable increase in hazardous air emissions cries out for a preliminary
14
injunction.
15
C.
16
Allowing Green Acres to continue recycling biosolids would not cause any
No Harm to Defendants
17
harm at all to Kern County. The expert declarations in support of this motion
18
demonstrate that Green Acres is well-run, is in an optimal location, and poses no
19
risk to soil, water or public health. See Page, Pepper, Gerba and Johnsons Decls.
20
These expert opinions rest on years of data generated at the City’s treatment plants
21
and Green Acres, interviews of farm personnel, and recent inspections of the Green
22
Acres site. The four scientist declarants have spent collectively many decades
23
researching biosolids and land application, authored many hundreds of scholarly
24
works in the field, and garnered the highest honors in the field.
25
Avoiding the severe harms that would be caused by the Ban also serves the
26
public interest because the wastewater agency Plaintiffs are not-for-profit entities
27
that serve approximately ten million customers and rate payers in Southern
28
California. They have statutory and fiduciary obligations to meet their biosolids
SF/21685197.8/2021736-0000320512
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1
management responsibilities under the Clean Water Act as economically as
2
possible. Minamide Decl., ¶¶ 7-11; Bahr Decl., ¶¶ 11-12. Forcing Los Angeles to
3
uproot its land application operation in a few short months, at great expense to the
4
City and with significant damage to the environment, does not serve the public
5
interest.
6
D.
7
Finally, maintaining the status quo through a preliminary injunction is
Preservation of the Status Quo
8
appropriate in this case. See E&J Gallo Winery, 446 F.3d at 990. The City has
9
land applied biosolids since 1987 and at Green Acres since 1994, and applies only
10
Class A EQ biosolids there. Minamide Decl., ¶¶ 7, 14-15, 18, 20. Given this long
11
history of successful land application, coupled with Ban’s injurious effects
12
described above, maintaining the status quo during the pendency of this litigation
13
is warranted.
14
VI.
15
16
CONCLUSION
For the foregoing reasons, the Court should grant Plaintiffs’ motion for a
preliminary injunction.
17
18
DATED: September 18, 2006
CITY OF LOS ANGELES
19
20
21
By:
Rockard J. Delgadillo,
City Attorney (SBN 125465)
Christopher M. Westhoff,
Assistant City Attorney (SBN 63176)
Keith W. Pritsker,
Deputy City Attorney (SBN 87158)
City of Los Angeles
1800 City Hall
200 N. Main Street
22
23
24
25
26
27
28
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95
1
2
3
BINGHAM McCUTCHEN LLP
4
5
By:
6
James J. Dragna (SBN 91492)
Thomas S. Hixson (SBN 193033)
Marc R. Bruner (SBN 212344)
355 South Grande Avenue
Telephone: (213) 680-6400
Facsimile: (213) 680-6499
[email protected]
[email protected]
[email protected]
7
8
9
10
11
Attorneys for Plaintiffs
City of Los Angeles, Responsible
Biosolids Management, Inc., R&G
Fanucchi, Inc. and Sierra Transport, Inc.
12
13
14
15
BEVERIDGE & DIAMOND, P.C.
16
17
18
By:
James B. Slaughter
(DC Bar No. 417273)
Gary J. Smith (SBN 141393)
1350 I Street, N.W., Suite 700
Washington, D.C. 20005-3311
Telephone: (202) 789-6040
Facsimile: (202) 789-6190
[email protected]
[email protected]
19
20
21
22
23
Attorneys for Plaintiffs
City of Los Angeles, Responsible
Biosolids Management, Inc., R&G
Fanucchi, Inc. and Sierra Transport, Inc.
24
25
26
27
28
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1
2
3
SOMACH SIMMONS & DUNN
4
5
By:
6
Roberta L. Larson (SBN 191705)
Jonathan Schutz (SBN 230897)
813 6th Street, 3rd Floor
Telephone: (916) 446-7979
Facsimile: (916) 446-8199
[email protected]
[email protected]
7
8
9
10
Attorneys for Plaintiff California
Association of Sanitation Agencies
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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Tri-TAC WATER COMMITTEE AGENDA
October 12, 2006
Item
Number
Topic
Lead Person
Estimated
Time
Attachments /
Links
1.
Total Residual Chlorine (TRC)
Policy Update
Ben Horenstein
10 minutes
Attachment 1
2.
CTR Compliance Schedules
Bobbi Larson
10 minutes
Attachment 2
3.
SSO WDR – Transition Memo
Update
Bobbi Larson
10 minutes
4.
SWRCB 303(d) List
Rodney Anderson
10 minutes
Discussion Items:
Attachment 3
http://www.waterbo
ards.ca.gov/tmdl/3
03d_lists2006.html
5.
Sediment Quality Objectives
Update – Presentation
Tom Grovhoug
Lisa Haney
60 minutes
Attachments 4 & 5
http://www.waterboa
rds.ca.gov/bptcp/sed
iment.html
Informational Items:
6.
Proposed Cyanide Basin
Plan Amendment for the San
Francisco Bay
Chuck Weir
Attachment 6
7.
SWRCB Permit Template
Monica Oakley
Attachment 7
8.
Permethrin Comment Letters
Chuck Weir
Attachment 8
Preeti Ghuman
Items in Progress:
9.
e-SMR Reporting
10.
SIP Revisions – Toxicity
Control Provisions
11.
California Ocean Plan
Sharon Green
Jim Colston/
Sharon Green
Afternoon Session:
12.
None
C:\My Documents\Tri-TAC\2006 Packets\October 2006\Water_Committee_Agenda_10-12-06.doc
98
Water Attachment No. 1
Chlorine Questionnaire for CA POTWs (requested by State Water Board staff)
Please provide replies in the Excel spreadsheet and return to [email protected] by October
18th, 2006. Please contact Regina Linville with any questions (916.341.5579).
Please provide your response in this column
1
Facility Name
2
City
3
Regional Water Board
4
Plant Operator/Manager
5
Plant Operator/Manager's phone number
6
Plant Operator/Manager's email
7
Average year-round flow (MGD)
8
Average wet season flow (MGD)*
9
Average dry season flow (MGD)*
10
Design Flow (MGD)
11
Name(s) of receiving water(s)
Does the facility receive any industrial
wastewater?
12
* If known/applicable
99
13
Does the facility receive any storm water?
14
Treatment Level (tertiary, advanced secondary,
secondary)
15
What is your current TSS limit?
16
Is Nitrification/Denitrification performed?
17
Disinfection chemical(s) used
18
Disinfection contact time
19
What is the target chlorine residual to ensure
that coliform objectives are met*
20
Chlorine concentrations prior to dechlorination
Please review 30 - 90 days of online data for
chlorine concentration just prior to
dechlorination. Please provide the average,
standard deviation, and range of that data.
Please also provide the number of chlorine
readings included in your review. (If online data
is not available, please use benchtop data and
specify the analytical method used).
21
Please attach the data used for question
number 20 in spreadsheet format.
100
22
Make/model of online chlorine analyzer used
for process control
23
Make/model of online chlorine analyzer
currently used for compliance monitoring*
24
Do you use the same online chlorine analyzer
for process control and compliance
monitoring?*
25
Do you have redundant online chlorine
analyzers? If so, please describe.
26
Have you performed MDL studies on your
online chlorine analyzers? If so, please provide
the MDL and the method used to determine it.
27
What method and equipment is used for
benchtop analysis of chlorine (please include
make/model)?
29
benchtop analysis of chlorine? If so, please
provide the MDL and the method used to
determine it.
30
Dechlorination chemical(s) used
101
31
Rate that dechlorination chemicals are added
(including excess)
32
Dechlorination contact time
33
Dechlor concentrations prior to discharge
Please review 30 - 90 days of online data for
concentrations of dechlorination agent prior to
discharge. Please provide the average,
standard deviation, and range of that data.
Please also provide the number of readings
included in your review. (If online data is not
available, please use benchtop data and
specify the analytical method used).
34
Please attach the data used for question
number 33 in spreadsheet format.
35
Make/model of online dechlor analyzer used for
process control
36
Make/model of online dechlor analyzer used to
monitor post-dechlorination levels of dechlor
agent*
37
Do you have redundant online dechlor
analyzers? If so, please describe.
102
38
online dechlor analyzers? If so, please provide
the MDL and the method used to determine it.
39
What method and equipment is used for
benchtop analysis of dechlor agent (please
include make/model)?
40
benchtop analysis of dechlor agent? If so,
please provide the MDL and the method used
to determine it.
41
Are you currently planning to purchase new
equipment for the analysis of chlorine or
dechlor agent? Please describe.
42
Are you currently planning any treatment
upgrades? Briefly describe (include timeline).
43
Are you required to monitor dissolved oxygen in
your receiving water? (If so, please specify the
frequency and whether you monitor both upand downstream of the discharge.)
44
Are you required to monitor pH in your receiving
water? (If so, please specify the frequency and
whether you monitor both up- and downstream
of the discharge.)
45
Do you currently use flow-through WET testing
at your facility?
103
46
Do you currently have a certified WET testing
laboratory on the premises of your facility?
47
Would you be willing to participate in onsite
MDL studies for your online analyses of
chlorine and dechlor agent? The MDL studies
would be designed by the State Water Board in
collaboration with manufacturers and (possibly)
USEPA. The study would involve tri-weekly
data comparisons between benchtop and
online analyses for approximately 60 days.
48
If you answered yes to number 47, do you have
the capacity to measure chlorine after the
disinfection contact time and prior to
dechlorination using both an online device
and grab samples with benchtop analysis?
49
If you answered yes to number 47, do you have
the capacity to measure dechlor agent after
dechlorination contact time and prior to
discharge using both an online device and
grab samples with benchtop analysis?
104
State Water Resources Control Board
Linda S. Adams
Secretary for
Environmental Protection
TO:
FROM:
Office of Chief Counsel
1001 I Street, 22nd Floor, Sacramento, California 95814
P.O. Box 100, Sacramento, California 95812-0100
(916) 341-5161 ♦ FAX (916) 341-5199 ♦ http://www.waterboards.ca.gov
Arnold Schwarzenegger
Governor
Celeste Cantú
Executive Director
EXECUTIVE OFFICE
/original signed by/
Michael A.M. Lauffer
Chief Counsel
OFFICE OF CHIEF COUNSEL
DATE:
September 15, 2006
SUBJECT:
COMPLIANCE SCHEDULE AUTHORITY FOR CALIFORNIA TOXICS RULE
(CTR) CONSTITUENTS UNDER THE STATE POLICY FOR
IMPLEMENTATION OF TOXICS STANDARDS FOR INLAND SURFACE
WATERS, ENCLOSED BAYS, AND ESTUARIES OF CALIFORNIA (SIP)
ISSUE
The compliance schedule provisions in the federal California Toxics Rule (CTR)1 expired on
May 18, 2005. Under the “Alaska Rule” 2, does expiration of the CTR compliance schedule
provisions resurrect the longer, fifteen-year compliance schedule provisions in the state Policy
for Implementation of Toxics Standards for Inland Surface Waters, Enclosed Bays, and
Estuaries of California (SIP) 3?
BRIEF ANSWER
No. The CTR contained more stringent compliance schedule authority that, absent United
States Environmental Protection Agency (EPA) approval, precluded the SIP’s fifteen-year
compliance schedule authority from taking effect. Further, the expiration of authority to issue
compliance schedules under the CTR did not have the effect of withdrawing the federal
regulation or resurrecting the SIP’s fifteen-year compliance schedule authority. To become
effective, EPA would have had to both approve the longer compliance schedule provisions in
the SIP and withdraw the corresponding CTR provisions. EPA did neither.
1
The CTR is codified in 40 C.F.R. § 131.38. The compliance schedule provisions are found in
paragraph (e).
2
The Alaska Rule is codified at 40 C.F.R. § 131.21(c). See discussion infra.
3
See Cal. Code Regs., tit. 23, § 2914. SIP sections 2.1 through 2.2.1 contain compliance schedule
provisions. Section 2.1.B and portions of 2.1 and 2.2.1 relate specifically to the longer compliance
schedule provisions discussed in this memorandum.
California Environmental Protection Agency
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DISCUSSION
I.
Background
In 1987 Congress amended the Clean Water Act4 to require that the states adopt numeric water
quality criteria for priority toxic pollutants for which EPA had issued criteria guidance and which
could reasonably be expected to interfere with maintaining a water’s designated uses.5 To
comply, the State Water Resources Control Board (State Water Board) adopted water quality
control plans in the early 1990’s containing water quality objectives (the state equivalent of
criteria) for priority pollutants for inland surface waters and enclosed bays and estuaries.
After a state court overturned the plans, EPA promulgated the CTR on May 18, 2000 to bring
the state back into compliance. The State Water Board concurrently adopted the SIP to
implement the priority pollutant criteria in the CTR, applicable National Toxics Rule (NTR)6
criteria, and priority pollutant objectives in regional water quality control plans (basin plans).7
In the CTR, EPA promulgated a regulation at title 40, Code of Federal Regulations, section
131.38(e) authorizing the use of compliance schedules in existing dischargers’ National
Pollutant Discharge Elimination System (NPDES) permits. Under the rule, permits can include
a compliance schedule of up to five years to enable existing dischargers to meet new or more
stringent effluent limits implementing CTR criteria. The regulation also included a sunset
provision, providing that the compliance schedule provisions “shall expire on May 18, 2005.” 8
An existing discharger’s first opportunity to obtain a compliance schedule occurred when the
discharger’s permit was first issued, reissued, or modified after the CTR’s effective date. The
maximum term for an NPDES permit is five years.9 Hence, the effect of the CTR’s sunset
provision was to “limit the longest time period for compliance to ten years after the effective date
of [the CTR]”, which is May 18, 2010. 10
The SIP included comparable compliance schedule provisions for CTR criteria. Like the CTR,
the SIP authorized schedules of up to five years in the permits of existing dischargers to comply
with effluent limits based on CTR criteria. The SIP also stated that no schedule can exceed ten
4
33 U.S.C. § 1251 et seq.
5
See id. § 1313(c)(2)(B); Pub.L. No. 100-4 (February 4, 1987) 101 Stat. 39.
6
40 C.F.R. § 131.36(d)(10).
7
The State Water Board adopted the SIP on March 2, 2000 in Resolution No. 2000-015 and amended it
on April 26, 2000 in Resolution No. 2000-030. The SIP took effect with respect to the NTR and basin
plan priority pollutant objectives, on April 28, 2000. The portion implementing the CTR went into effect on
May 18, 2000. In 2005 the State Water Board amended portions of the SIP, although the amendments
did not involve SIP provisions germane to this analysis.
8
40 C.F.R. § 131.38(e)(8).
9
33 U.S.C. § 1342(a)(3) and (b)(1)(B).
10
65 Fed.Reg. 31682-31719 (May 18, 2000) at 31704.
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September 15, 2006
years from the SIP’s effective date, which was May 18, 2000 for CTR-related provisions of the
SIP. 11 The effects of the CTR’s compliance schedule authority and the SIP’s five-year
compliance schedule authority were the same for existing dischargers: final water quality-based
effluent limitations had to implement water quality standards no later than May 18, 2010.
The SIP also included alternate provisions for compliance schedules for effluent limitations
based on the development of total maximum daily loads (TMDLs) for CTR criteria and
accompanying waste load allocations (WLAs).12 A TMDL is a written plan for an impaired water
body that is established to ensure that water quality standards will be attained and maintained
throughout the water body.13 It is defined as the sum of WLAs for point sources and load
allocations for nonpoint sources and background for the impairing pollutant. 14 The SIP allowed
up to fifteen years from its effective date, or until May 18, 2015, to develop and adopt a TMDL
and up to five additional years to comply with a TMDL-derived effluent limitation.
Under the Clean Water Act, the states must submit revised or new water quality standards to
EPA for approval. 15 Water quality standards consist of designated uses, water quality criteria to
protect the uses, an antidegradation policy, and, at the states’ discretion, policies generally
affecting the application and implementation of standards, such as mixing zones.16 To the
extent a state authorizes compliances schedules, compliance schedules are a component of
state water quality standards subject to EPA approval.17 Much of the SIP specifies policies
generally affecting the application and implementation of the CTR; consequently, California
submitted the SIP to EPA for approval in May 2000.
By letter dated May 1, 2001, EPA took action on those portions of the SIP that EPA determined
were subject to EPA’s approval authority under the Clean Water Act, including the compliance
schedule provisions.18 In particular, EPA approved the SIP provisions allowing compliance
schedules of up to five years for effluent limitations based on CTR criteria. EPA found that
these provisions were “virtually identical to the corresponding elements of the CTR’s authorizing
compliance schedule provision at 40 C.F.R. § 131.38(e).” 19
11
SIP, § 2.1; see also “Note” at SIP p.1.
12
Id. § 2.1.
13
See 33 U.S.C. § 1313(d); 40 C.F.R. §§ 130.2(i), 130.7.
14
40 C.F.R. § 130.2(i).
15
33 U.S.C. § 1313(c). See also 40 C.F.R. § 131.21.
16
See 33 U.S.C. § 1313(c)(2)(A) and (d)(4)(B); 40 C.F.R. §§ 131.6, 131.13.
17
See Communities for a Better Environment v. State Water Resources Control Bd. (2005) 132
Cal.App.4th 1313, 1334 (recognizing compliance schedules as part of the water quality standards); In re
City of Moscow, Idaho (Jul. 27, 2001) 10 E.A.D. 135, 153; see also, 40 C.F.R. § 131.6(f) (identifying water
quality standards submission requirements).
18
Letter, dated May 1, 2001, from Alexis Strauss, Water Division Director, EPA, to Edward C. Anton,
former Acting Executive Director, State Water Board.
19
Ibid.
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September 15, 2006
EPA did not act, however, on those compliance schedule provisions that related to the longer
schedules based on TMDL development. The letter stated that those provisions continued to be
under EPA review and “are not addressed by today’s action.” In this regard, the letter noted
“that the CTR authorizing compliance schedule provision at 40 C.F.R. §131.38(e) continues to
apply unless and until it is withdrawn by EPA.” 20
To date, EPA has not acted on the TMDL-based compliance schedule provisions. The CTR
compliance schedule provision at title 40, Code of Federal Regulations, section 131.38(e) was
never withdrawn and the authority contained in paragraph (e) has now expired by its own terms.
Given these circumstances, is the TMDL-based compliance schedule now in effect?
II.
Analysis
A.
The Alaska Rule
Under Clean Water Act section 303(c), once a state has submitted a water quality standard to
EPA for approval, EPA must either notify the state within 60 days of the state’s submission that
the standard has been approved or indicate within 90 days that it has been disapproved. 21 EPA
regulations in effect prior to May 30, 2000, however, provided that, after the state submitted its
water quality standards revisions to EPA, the standards remained in effect, even though
disapproved by EPA, until the state revised the standard or EPA promulgated a rule
superseding the state standard. 22 Under this regulation, state standards became effective
immediately upon adoption for Clean Water Act purposes until revised by the state or
superseded by an EPA rule.
In 1996 environmental groups sued EPA, challenging the validity of the regulation as applied to
new and revised standards adopted by Alaska. The district court ruled that, despite the
regulation, the plain meaning of section 303(c) was that new or revised state standards did not
become effective for Clean Water Act purposes until approved by EPA. 23 In response, EPA
entered into a settlement agreement with the litigants under which EPA agreed to revise the
regulation consistent with the opinion. The outcome was the “Alaska Rule,” which was
promulgated by EPA on April 27, 2000, and became effective on May 30, 2000. 24
The rule provides that if a state adopts a water quality standard on or after May 30, 2000, the
standard becomes the applicable standard under the Clean Water Act when EPA approves it,
unless or until EPA has promulgated a more stringent standard. The rule also contains a
transition provision for standards adopted before May 30, 2000. It states that if a state has
20
Ibid.
21
See also 40 C.F.R. § 131.21(a).
22
48 Fed.Reg. 51400-51413 (November 8, 1983) at 51408, formerly codified at 40 C.F.R. § 131.21(c).
23
Alaska Clean Water Alliance v. United States Environmental Protection Agency (July 8, 1997, C961762R) (W.D.Wash.) [nonpub. opn.].
24
See 65 Fed.Reg. 24641-24653, codified at 40 C.F.R. § 131.21.
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adopted a standard that is effective under state law and has been submitted to EPA before
May 30, 2000, then:
“the State . . . water quality standard is the applicable water quality standard for
purposes of the Act [u]nless or until EPA has promulgated a more stringent water quality
standard for the State . . . that is in effect [i]n which case the EPA promulgated water
quality standard is the applicable water quality standard for purposes of the Act until
EPA withdraws the Federal water quality standard.” 25
B.
Applicability of the Alaska Rule to the SIP
The SIP went into effect before May 30, 2000. Under the Alaska Rule, the SIP’s TMDL-based
compliance schedule provisions did not become the applicable Clean Water Act standard, at
that time, because the CTR contained a more stringent applicable federal compliance schedule
provision. The CTR’s compliance schedule provision requires final water quality-based effluent
limitations that implement the water quality standard no later than May 18, 2010. In contrast the
unapproved TMDL-based compliance schedule provision would have allowed up to an
additional ten years until May 18, 2020. As stated by EPA in its approval letter on the SIP, “the
CTR authorizing compliance schedule provision at 40 C.F.R. §131.38(e) continues to apply
unless and until it is withdrawn by EPA.”
The CTR’s compliance schedule provision was never withdrawn. EPA did, in fact, contemplate
withdrawing the CTR provision, but did not do so. The preamble to the CTR states that “if the
State [Water] Board adopts, and EPA approves, a [Regional Water Quality Control Board
(regional water board)] authorizing compliance schedule provision significantly prior to May 18,
2005, EPA will act to stay the authorizing compliance schedule provision in today’s rule.”26
Similarly, the preamble notes that two regional water boards had adopted compliance schedule
provisions, which were before EPA for approval. “If and when EPA approves of either Regional
Basin Plan, EPA will expeditiously act to amend the CTR, staying its compliance schedule
provision, for the appropriate geographic region.” 27 These compliance schedule provisions
authorized permit schedules of up to ten years.
EPA did approve the SIP’s five-year compliance schedule provisions, but concluded that they
were virtually identical to the CTR provision. Hence, both the SIP and the CTR provisions were
in effect concurrently until May 18, 2005.
Because the CTR compliance schedule provision was not withdrawn, the State Water Board
has consistently advised the regional water boards that they cannot authorize schedules longer
than five years for CTR-based effluent limits. Further, the Office of Chief Counsel has
previously advised regional water boards that EPA’s approval of the SIP’s five-year compliance
schedule provision provides continuing authority to issue compliance schedules, so long as the
compliance schedule terminates on or before May 18, 2010 consistent with the CTR. The
25
40 C.F.R. § 131.21(c).
26
65 Fed.Reg. at 31704.
27
Id. at 31705.
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regional water boards were instructed that they could not use either basin plan provisions
authorizing longer compliance schedules or the TMDL-based compliance schedule provisions in
the SIP to justify schedules longer than five years to achieve effluent limitations for CTR
pollutants. To address the need for longer compliance schedules to achieve WLAs in the TMDL
context, the regional water boards have generally included time schedules in the TMDL
implementation program.28 Unless these schedules are consistent with a compliance scheduleauthorizing provision already in a basin plan or the SIP, the TMDLs and implementation
programs are to be submitted to EPA for review under Clean Water Act section 303 paragraphs
(c) and (d).
C.
Applicability of the Alaska Rule to the SIP’s TMDL-based Compliance Schedule
Provision
The Alaska Rule cannot reasonably be read to now resurrect the SIP’s TMDL-based
compliance schedule provisions. First, the Alaska Rule plainly prevented the SIP’s TMDLbased compliance schedule provisions from taking effect. This is so because there was a morestringent CTR provision that limited compliance schedules to no later than May 18, 2010. The
CTR’s provision required final compliance ten years earlier than the maximum allowed by the
SIP’s TMDL-based compliance.29 Under the Alaska Rule, the SIP’s TMDL-based compliance
schedule provisions did not become the “applicable water quality standard” in 2000 because
EPA had already “promulgated a more stringent water quality standard.” 30
Second, expiration of the CTR compliance schedule provision cannot be viewed in a vacuum.
Rather, the effect of expiration was “to limit the longest time period for compliance to ten years
after the effective date of [the CTR].”31 This was also the effect of EPA approving the SIP’s fiveyear compliance schedule provisions. The CTR preamble states that “[t]he sunset applies to
the authorizing provision” in the CTR.32 The sunset clause ended the CTR’s authorization to
include compliance schedules in permits under section 131.38(e) after May 18, 2005. This is
not the same as “withdraw[ing] the Federal water quality standard” as required by the Alaska
Rule.33
Nothing evinces an affirmative act by EPA to withdraw the federal standard to make way for the
state standard. Withdraw means “to retract or recall.”34 EPA did not recall the federal water
quality standard. In fact, the federal water quality standard required final compliance by no later
28
A regional water board or the State Water Board can also issue a companion enforcement order under
the Water Code that establishes a schedule of compliance outside of the NPDES permit.
29
In contrast, the SIP’s five -year compliance schedule authority approved by EPA requires final
compliance by May 18, 2010—the same date as the CTR.
30
40 C.F.R. § 131.21(c).
31
65 Fed.Reg. at 31704.
32
Ibid.
33
40 C.F.R. § 131.21(c).
34
Random House Webster’s College Dict. (2d ed. 1997) p. 1476.
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than May 18, 2010, and the effect of expiring the authority to delay compliance did not change
the May 18, 2010 final compliance date. 35 As a result, there is no credible argument that the
expiration of the compliance schedule authority in the CTR had the effect of withdrawing the
standard, because the May 18, 2010 deadline continues to be the consequence of the CTR.
Under the Alaska Rule, the CTR’s May 18, 2010 final compliance date remains in effect.
An interpretation of EPA’s inaction that resurrects the TMDL-based compliance schedules
would effectively allow an additional ten-year delay in implementing the CTR’s criteria contrary
to authority provided by EPA and without EPA’s affirmative consideration. Such an
interpretation of EPA’s inaction would allow relaxation of the federal water quality standard
contrary to the May 18, 2010 deadline that effectively remains in the CTR. This de facto
relaxation of the federal water quality standard would be contrary to both the Alaska Rule and
antidegradation principles 36 without any consideration or analysis by EPA.
CONCLUSION
In sum, the SIP’s TMDL-based compliance schedule provisions did not go into effect upon
adoption under the Alaska Rule because a more stringent federal standard applied. Expiration
of the authority provided by the federal standard to delay compliance with the CTR criteria did
not change this result. The federal standard was never withdrawn, and its expiration ended the
authority to include compliance schedules in permits under the federal standard.
cc:
Tom Howard (Exec)
Beth Jines (Exec)
OCC WQ Attorneys
35
However, EPA’s affirmative approval of the SIP’s five-year compliance schedule authority allows the
water boards to continue issuing compliance schedules, so long as they expire on or before May 18,
2010. The foregoing is consistent with the CTR, the SIP, and EPA’s approval of the SIP’s five-year
compliance schedule.
36
See 33 U.S.C. § 1313; 40 C.F.R. § 131.12.
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Attachment No. 3
State Water Resources ControlWater
Board
Linda S. Adams
Secretary for
Environmental Protection
Tam M. Doduc, Board Chair
1001 I Street • Sacramento, California 95814 • (916) 341-5455
Mailing Address: P.O. Box 100 • Sacramento, California • 95812-0100
Fax (916) 341-5621 • http://www.waterboards.ca.gov
Arnold Schwarzenegger
Governor
NOTICE OF OPPORTUNITY FOR PUBLIC COMMENT
ON THE PROPOSED 2006 FEDERAL CLEAN WATER ACT SECTION 303(d) LIST
OF WATER QUALITY LIMITED SEGMENTS FOR CALIFORNIA
NOTICE IS HEREBY GIVEN THAT the State Water Resources Control Board (State
Water Board) will accept comments on the proposed 2006 federal Clean Water Act
(CWA) section 303(d) List of Water Quality Limited Segments for California (2006 list).
The draft final 2006 list and supporting staff reports are available on the State Water
Board’s Web site at http://www.waterboards.ca.gov/tmdl/303d_lists2006.html. You may
also receive a copy of the staff reports and draft final 2006 list on CD-R by contacting:
Dorena Goding, Water Quality Assessment Unit, Division of Water Quality, State Water
Resources Control Board, P.O. Box 100, Sacramento, CA 95812-0100,
(916) 341-5596, FAX: (916) 341-5550, email: [email protected].
The State Water Board expects to consider for adoption the 2006 list at the October 25,
2006 Board Meeting. An agenda notice, agenda item, and draft resolution for the
October 25, 2006 Board Meeting will be available on October 13, 2006.
Section 303(d) of the CWA requires states to identify waters that do not meet applicable
water quality standards (WQSs) with technology-based controls alone. The section
303(d) list must include the water quality limited segments, (water not meeting WQSs),
associated pollutants, and a priority ranking of the waters for purposes of developing
total maximum daily loads (TMDLs) in the next two years. A TMDL is the maximum
load of a pollutant that can be discharged from point and nonpoint sources without
exceeding WQSs. States are required to submit the section 303(d) list and TMDL
priorities to the U.S. Environmental Protection Agency for approval.
A previous draft of the proposed 2006 list was released for public comment on
September 30, 2005, and comments were accepted through January 31, 2006. State
Water Board staff has completed the review of public comments submitted. In response
to comments, staff has now considered all data and information. Staff developed 2,259
fact sheets documenting development of the 2006 list. In assessing listing status, staff
followed the Water Quality Control Policy for Developing California’s Clean Water Act
Section 303(d) List (Listing Policy), which is available at
http://www.waterboards.ca.gov/plnspols/index.html. The Listing Policy identifies the
process, listing and delisting factors, by which the State Water Board and the Regional
Water Quality Control Boards comply with the listing requirements of CWA
section 303(d). In response to comments, the State Water Board has changed many of
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its initial recommendations. New or revised fact sheets are grouped together in the staff
report.
Comment letters on the revisions must be received by 5 p.m. on October 20, 2006.
After this deadline, State Water Board staff will not accept additional written comments
unless the State Water Board determines that such comments should be accepted or
unless changes are made to the proposed list before the State Water Board meeting.
Please send comments to: Song Her, Clerk to the Board, by e-mail at
[email protected], (916) 341-5620 (fax), or addressed to
State Water Resources Control Board, 1001 I Street, Sacramento, CA 95814. Please
also indicate in the subject line, “Comment Letter – 2006 Federal CWA Section 303(d)
List.” Please direct questions about this notice to Dorena Goding, Division of Water
Quality, at (916) 341-5596.
September 20, 2006
Date
Song Her
Clerk to the Board
113
WATER COMMITTEE ISSUE SUMMARIES
SEDIMENT QUALITY OBJECTIVES
Regulatory Background: In 1989, the California Water Code (CWC) was amended to
require the SWRCB to develop Sediment Quality Objectives (SQOs) as part of a
comprehensive program to protect existing and future beneficial water uses within
California’s enclosed bays and estuaries. The SWRCB is now developing SQOs in
enclosed bays of California in accordance with the requirements of Section 13393 of the
(CWC). As a result of a lawsuit filed in 1999 by several non-governmental organizations,
the Court ordered the SWRCB to develop SQOs in accordance with the following
schedule:
•
By August 5, 2005, SWRCB was to circulate draft proposed objectives to the
public
•
By February 28, 2007, the SWRCB was to adopt proposed SQOs and an
accompanying implementation policy and submit these to the Office of
Administrative Law (OAL)
The SWRCB has been unable to meet this schedule and is in the process of negotiating
a revised schedule with the petitioners in the court case. The SWRCB is now operating
on the following time line - reflective of a one year slip in the schedule:
•
•
•
•
•
Circulate draft CEQA Scoping Document on August 17, 2006
Schedule CEQA Scoping meeting for late October 2006
Accept written comments on Scoping Document for two weeks after Scoping
meeting
Prepare Functional Equivalent Document for proposed SQOs (date not
established)
Adopt proposed SQOs and implementation policy in a stand-alone water
quality control plan and send to OAL in February 2008
To develop the SQOs, the SWRCB is utilizing three forums including a Sediment
Quality Advisory Committee (SQAC) comprised of designated representatives from the
regulated community and non-governmental organizations, a Scientific Steering
Committee (SSC) comprised of national sediment quality experts that acts as a peer
review/advisory committee to the SWRCB and its Science Team, and an Agency
Coordination Committee (ACC) comprised of SWRCB, Regional Water Board and other
state and federal agency representatives.
Project Goals: Develop scientifically defensible SQOs based on multiple lines of
scientific evidence that are protective of beneficial uses. Develop implementation policy
and guidance that provides for consistent application throughout the state. Develop
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methods and tools for assessing and managing sediment quality in enclosed bays that
are applicable to estuaries in the future after further data collection in those areas.
Key Project Objectives: Utilize narrative SQOs to provide reasonable protection of
sensitive beneficial uses affected by sediment quality, including those linked to aquatic
life and fish consumption.
Project Roles: SWRCB staff and contractors (Science Team) are managing the
project. The SWRCB Science Team includes: Southern California Coastal Waters
Research Project (SCCWRP), San Francisco Estuary Institute (SFEI), Moss Landing
Marine Labs and UC Davis-MPSL Granite Canyon. The Scientific Steering Committee,
Advisory Committee, and the ACC members are reviewing and advising on the work.
SWRCB will ultimately approve the SQOs and accompanying policy and FED, which will
be forwarded to OAL and USEPA for approval.
Sediment Quality Advisory Committee:
Regulated Community:
● Ports: Paul Johansen, Port of Los Angeles. Alt: Andy Jahn, Port of Oakland
● POTWs: Tom Grovhoug, Larry Walker Associates. Alt: Lisa Haney, LACSD
● Municipal Stormwater: Desi Alvarez, City of Downey. Alt: Sandy Mathews,
California Stormwater Quality Association
● Industrial Stormwater: Tim Piasky, BIASC. Alt: Steve Arita, Western States
Petroleum Association
● Industrial Direct: Susan Paulsen, Flow science. Alt: Craig Johns, California
Resource Strategies
● Federal Facilities: Bart Chadwick, Navy
● Legacy Pollutants: Paul Singarella, Latham & Watkins.
Environmental Community (as of September 2006, participation of these
individuals in the Advisory Committee has ceased)
● Gabrielle Sumner and Laura Hunter, Environmental Health Coalition
● Mitzi Taggart, Heal the Bay. Sarah Newkirk and Linda Sheehan Alt.
Representing the Ocean Conservancy;
● Bruce Reznik, San Diego BayKeeper
● Leo P. O'Brien, San Francisco BayKeeper
● Robin Rierdan, San Diego River Park- Lakeside Santee Conservancy
● Bill Jennings, Delta Keeper
● Ed Kimura, Sierra Club, San Diego Chapter
● Marco Gonzalez Surfrider Foundation, San Diego Chapter
● Dave Paradies, Bay Foundation of Morro Bay.
Scientific Advisory Committee:
● Dr. Todd Bridges, U.S. Army Corps of Engineers
● Dr. Bob Van Dolah, South Carolina Department of Natural Resources
● Dr. Peter Landrum, NOAA, Great Lakes Environmental Research Lab
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● Edward Long, ERL Environmental
● Dr. Rob Burgess, USEPA.
Agency Coordination Committee:
SWRCB, RWQCB, Department of Fish and Game, Department of Pesticide Regulation,
Department of Toxics Substances Control, State Lands Commission, San Francisco
Bay Conservation and Development Commission, California Coastal Commission and
OEHHA.
Issues: The SWRCB has established a data-driven, science-based work plan to
formulate sediment quality objectives (either narrative or numeric). SWRCB has stated
that it will follow the requirements of the California Water Code in setting enforceable
objectives. SWRCB staff will capture important policy and implementation issues in a
Policy Support Document (PSD). The Phase 1 effort is limited to the development of
SQOs in marine and estuarine areas of enclosed bays in California. The primary focus
for SQO development will be the protection of sensitive benthic communities using
benthic invertebrate community measures, acute and sublethal sediment toxicity tests,
and sediment chemistry analysis. Tools for assessment of human health and wildlife
protection will be examined but these end points are not expected to be the subject of
SQOs in Phase 1.
Update: Several meetings/conference calls of the Sediment Quality Advisory
Committee (SQAC) were held in summer, 2006 to discuss the contents of the proposed
CEQA scoping document for proposed SQOs. The next meeting of the SQAC is
tentatively scheduled to occur in September, 2006.
The most recent meetings/conference calls of the Scientific Steering Committee
occurred in summer 2006. The SSC was asked to review suggested changes to the
proposed direct effects Multiple Lines of Evidence (MLOE) approach for individual site
assessment.
On April 13, 2006, the SWRCB convened a meeting of interested parties to solicit
participation in an Advisory Committee to be involved in the development of SQOs in
estuaries (in particular the Sacramento-San Joaquin Delta). The SWRCB intends to
issue a draft Functional Equivalent Document and proposed SQOs for the Delta in
December 2010.
Schedule:
•
•
•
•
January 2003: Project start, Work plan development, Database creation
June 2003: Adopt work plan
August 3-4, 2004: First meeting of Scientific Steering Committee
February 28-March 2, 2006: Most recent meeting of the Scientific Steering
Committee
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•
•
•
•
August 17 2006: Draft CEQA Scoping document for SQOs for direct effects in
enclosed bays.
CEQA scoping meeting in late October 2006; public comments due in
November, 2006
February 2008: Adopt SQOs for direct effects in enclosed bays
December 2010: Draft SQOs and FED for direct effects in estuaries and tools
and approach for indirect effects
Contacts: Tom Grovhoug, LWA; Lisa Haney, LA Co. Sanitation District; Jim Marchese, City of LA Bureau of Sanitation
Current as of: September 5, 2006
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CEQA Scoping Meeting
Informational Document
DEVELOPMENT
OF SEDIMENT QUALITY OBJECTIVES
FOR ENCLOSED BAYS AND ESTUARIES
August 17, 2006
Division of Water Quality
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CONTENTS
1.0 INTRODUCTION ........................................................................................................................................1
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
Purpose……………………………………………………………………….………………………1
Background……………………………………………………………………………………..……1
CEQA Compliance…………………………………………………………………………………...2
Proposed Activity…………………………………………………………………………………….2
Program Goals………………………………………………………………………………………..2
Acknowledgements…………………………………………………………………………………..3
Presentation of Implementation Measures…………………………………………………………...3
Document Organization…………………………………………………………………………...…3
2.0 ISSUES AND ALTERNATIVES.................................................................................................................4
2.1 Primary Issues ...................................................................................................................................4
2.2 Waters .................................................................................................................................................5
2.3 Sediments.............................................................................................................................................5
2.4 Cleanup Actions ................................................................................................................................6
2.5 Dredged Materials……………………………………………………………………………………6
2.6 Beneficial Uses……………………………………………………………………………………….9
2.7 Receptors……………………………………………………………………………………………11
2.8 Protected Condition Benthos………………………………………………………………………..13
2.9 Protected Condition Human Health…………………………………………………………...……14
2.10 Lines of Evidence…………………………………………………………………………………...15
2.11 Type of Objectives……………………………………………………………………………….…18
2.12 Pass/Fail versus Ordinal System for Evaluating Lines of Evidence………………………………..18
2.13 Use of Sediment Toxicity…………………………………………………………………………...19
2.14 Sediment Toxicity Test Methods…………………………………………………………………...20
2.15 Use of Sediment Chemistry…………………………………………………………………………21
2.16 Sediment Chemistry Indicators……………………………………………………………………..22
2.17 Benthic Community Indicators……………………………………………………………………..25
2.18 Benthic Community Methods………………………………………………………………………27
2.19 Interim Tools for the Delta and Other Estuaries……………………………………………………30
2.20 Sunsetting Interim Tools……………………………………………………………………………32
2.21 Application of SQOs………………………………………………………………………………..32
2.22 Exceedances Defined……………………………………………………………………………….33
2.23 SQOs and Water Body Impairment…………………………………………………………………33
2.24 SQOs and NPDES Permits………………………………………………………………………….34
2.25 Follow-up Actions…………………………………………………………………………………..34
3.0 PRELIMINARY DRAFT PLAN................................................................................................................36
I.
II.
III.
IV.
V.
VI
Intent and Summary ........................................................................................................................37
Use and Applicability……………………………………………………………………………37
Beneficial Uses……………………………………………………………………………………...40
Sediment Quality Objectives………………………………………………………………………..41
Benthic Community Protection………………………………………………………………...…...42
Human Health…………………………………………………………………………..…………..51
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Contents
VII Program of Implementation…………………………………………………………………….….52
4.0 GLOSSARY ...............................................................................................................................................57
5.0 REFERENCES ...........................................................................................................................................62
TABLES
1.1 Beneficial Uses
2.1 Severity of Effects
2.2 Potential for Chemically Mediated Effects
2.2 MLOE Station Classification
3.1 Beneficial Uses and Target Receptors
3.2 Acceptable Short Term Survival Sediment Toxicity Tests
3.3 Acceptable Sublethal Sediment Toxicity Tests
3.4 Sediment Toxicity Categorical Responses
3.5 Effects Values and Weighting Factors
3.6 Logistic Regression Parameters
3.7 Severity of Effects Matrix
3.8 Potential for Chemically Mediated Effects
3.9 Station Assessment Matrix
3.10 MLOE Assessment based on Chemistry and Toxicity
FIGURES
1
Schematic of multiple lines of evidence (MLOE) integration framework
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1.0 INTRODUCTION
1.1
Purpose
This document summarizes State Water Resources Control Board (State Water Board) staff’s method for
developing sediment quality objectives (SQOs) and a preliminary process that could be used to apply and
implement the objectives. SQOs would provide a mechanism to differentiate sediments impacted by toxic
pollutants from those that are not.
Sediments in enclosed bays and estuaries are with few exceptions the most highly polluted exposed sediments
in the State. Historically, bays and estuaries were the first heavily industrialized regions in the State; and, as a
result, wastes have been discharged into bays either directly as point sources, indirectly as runoff, or
accidentally through releases and spills for many years. Sediment carried down rivers and creeks also
contributes to the contaminant loading into bays and estuaries. Many contaminants, such as metals and
pesticides, readily attach to the sediments. Through this mechanism, contaminants from inland sources can be
transported long distances. Poor flushing and low current speeds allow the sediments and contaminants to
settle out in the bays and estuaries before reaching the open ocean.
In 2003, the State Water Board initiated a program to protect these water bodies through the development of
SQOs for enclosed bays and estuaries.
The purpose of this California Environmental Quality Act (CEQA) Scoping Meeting Informational Document
is to present a summary of the progress and direction of this program for the public and interested parties in
preparation for the CEQA Scoping Meeting. The CEQA Scoping Meeting will initiate the State Water
Board’s formal water quality planning process. After the CEQA Scoping Meeting, State Water Board staff
will prepare and circulate a draft Substitute Environmental Document1 (dSED).
1.2
Background
Few states have attempted to develop SQOs because of the lack of ecologically relevant tools, difficulties
interpreting and integrating the results, and an inability to establish causality.
In 1989, the Porter-Cologne Water Quality Control Act (Porter-Cologne) was amended to require the State
Water Board to develop SQOs as part of a comprehensive program to protect existing and future beneficial
uses within California’s enclosed bays and estuaries (Section 13393). In 1991, the State Water Board
prepared a seven year conceptual approach to developing SQOs in a Workplan for the Development of
Sediment Quality Objectives for Enclosed Bays and Estuaries of California (91-14 WQ) (1991 Workplan).
The 1991 Workplan included a schedule and specific tasks to develop direct effects tools that would protect
benthic communities and an element to assess the human and ecological risk in bays and estuaries from
pollutants in sediments.
A number of factors resulted in the significant delay of this program, and, in 1999, a lawsuit was filed against
the State Water Board for failing, among other things, to adopt SQOs in accordance with Porter-Cologne. In
1999, the superior court ruled against the State Water Board and ordered that the State Water Board develop
SQOs in accordance with a compliance schedule.
1
The title of the State Water Board’s primary planning document has been changed from Functional Equivalent Document (FED) to Substitute
Environmental Document (SED). There is no substantive difference in the content of the document.
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Introduction
The State Water Board initiated a multi-phase effort to develop SQOs in 2003. The State Water Board
supported the first phase of this effort with a budget of two and one-half million dollars. However, this phase
was severely time-limited due to the court mandated compliance schedule. Because time was a critical factor,
this effort focused primarily on the improvement of existing tools and methodologies that had been applied
with success in California.
1.3
CEQA Compliance
State agencies are subject to the environmental impact assessment requirements of CEQA (Public Resources
Code, §21000 et seq.). However, CEQA authorizes the Secretary of the Resources Agency to exempt specific
State regulatory programs from the requirements to prepare Environmental Impact Reports (EIRs), Negative
Declarations, and Initial Studies, if certain conditions are met (Public Resources Code, §21080.5). The Water
Quality Control (Basin)/208 Planning Program of the State Water Board has been certified by the Secretary
for Resources as meeting the requirements for exemption (California Code of Regulations (CCR), Title 14,
§15251(g)). Agencies qualifying for this exemption must comply with CEQA’s goals and policies; evaluate
environmental impacts; consider cumulative impacts; consult with other agencies with jurisdiction; provide
public notice and allow public review; respond to comments on the draft environmental document; adopt
CEQA findings; and provide for monitoring of mitigation measures. State Water Board regulations (CCR
Title 23, Chapter 27, section 3777) require that a document prepared under its certified regulatory programs
must include:
o
o
o
A brief description of the proposed project;
Reasonable alternatives to the proposed project; and
Mitigation measures to minimize any significant adverse environmental impacts of the proposed
activity.
Accordingly, the State Water Board prepares Substitute Environmental Documents (SEDs) in lieu of EIRs or
other environmental document. These documents were formerly titled Functional Equivalent Documents.
1.4
Proposed Activity
The State Water Board is proposing the following project: the adoption of a water quality control plan for
sediment quality for enclosed bays and estuaries, or “Sediment Quality Plan for Enclosed Bays and
Estuaries.”
1.5
Program Goals
The goals of this program are:
o
Establish narrative receptor-specific SQOs.
o
Establish a condition that is considered protective for each targeted receptor.
o
Develop, refine, and validate the tools so that the condition of each station can be measured relative to
the protected condition.
o
Build a regulatory framework around these tools to promote the protection of sediment quality related
beneficial uses.
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Introduction
1.6
Acknowledgements
State Water Board staff wish to thank the members of the Scientific Steering Committee for their valuable
time, their critical assessment of each technical element, and their commitment and support to ensure that
every aspect was scientifically supported.
Staff wishes to thank the Sediment Quality Technical Team for their expertise, knowledge, and commitment
to this effort. Finally staff also wishes to thank members of the Sediment Quality Advisory Committee,
Agency Coordination Committee, and interested parties for input and advice on both technical and policyrelated issues.
1.7
Development of Implementation Measures
The Sediment Quality Advisory Committee and Agency Coordination Committee have presented many
conceptual approaches and ideas to staff. While some of these approaches have been addressed or included
within this document, this document does not represent any member or member’s specific viewpoint(s).
1.8
Document Organization
This document is organized as follows. Section 2 describes many of the key programmatic issues and
alternatives under consideration. Where staff has identified an alternative for further consideration, an
example of regulatory language is provided in Section 3. Some issues have not been resolved to the extent
that a suggested alternative is identified. In these cases, no preliminary regulatory language is presented.
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2.0 ISSUES AND ALTERNATIVES
This section describes the major policy related issues identified to date and alternatives that have been
considered by staff during the development of a preliminary draft document presented in Section 3.0. Each
issue analysis contains the following sections:
Issue: A brief question framing the issue is presented in bold text. Many of the more complex technical
issues such as the selection and validation of test methods or derivation of thresholds are not discussed within
this document. These issues will be summarized in the dSED and described in detail within the program
technical reports in preparation.
Issue Description: A description of the issue or topic and (if appropriate) any additional background
information, list of limitations and assumptions, descriptions of related programs or other information.
Baseline: A description of how the State and Regional Water Quality Control Boards (Regional Water
Boards) currently act on the issue.
Alternatives: For each issue or topic, at least two alternatives are provided for consideration. Each
alternative is evaluated with respect to the program needs and the appropriate sections within Division 7 of
the California Water Code (CWC). For those issues that address scientific questions, the SQO Scientific
Steering Committee’s position is also stated.
Staff Recommendation: In this section, a recommended alternative (or combination of alternatives) is
identified and proposed for adoption by the State Water Board.
Example Language: Following each recommendation, the reader is directed to example language within the
draft plan if applicable (Section 3.0)
2.1
What Primary Issues Should the Plan Address?
At a minimum, the State Water Board is required to comply with CWC §§13240 through 13247in adopting
SQOs. In particular, section 13241 lists the factors that the State Water Board must consider when adopting
objectives, and section 13242 specifies the elements that must be included in a program to implement the
objectives. State Water Board staff believes that sediment quality protection is significantly different from
the tools and methods commonly applied to water quality protection. Therefore, additional information and
implementation guidance should be provided to provide greater understanding and consistency when the
SQOs are applied within the various regions.
Baseline: Not applicable.
Alternative 1: Include only the SQOs and tools and thresholds needed to implement the objectives.
Alternative 2: Include the narrative objectives and tools and thresholds needed to implement the
objectives and additional language that describes monitoring and stressor identification.
Staff Recommendation: Alternative 2.
Example Language: See Section 3.I.B.
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Issues and Alternatives
2.2
To What Waters Should the SQOs be Applied?
Chapter 5.6, Division 7 of the CWC, requires the State Water Board to develop SQOs for bays and estuaries.
Since 2003, State Water Board staff and the technical team have been developing SQOs and associated tools
and thresholds for embayments in California. This focus on bays was based upon the available data and
understanding of aquatic communities. Sediment quality within bays has been a priority since the 1980’s
when the State Water Board initiated the Bay Protection Program.
Through the State Water Board’s Bay Protection Program, the U.S. Environmental Protection Agency
(U.S. EPA) EMAP, the San Francisco Estuary Institute Regional Monitoring Program (RMP), and the
Southern California Coastal Water Research Project (SCCWRP) Bight 94, 98, and 03, and various site
cleanup and dredging projects, a large volume of coupled biological effects and chemistry data exists for the
major embayments in California. The technical team has relied on this data extensively to evaluate potential
tools and methods for use in this program and has selected appropriate thresholds that could be applied to
each tool. The database created for this program included over 150 studies and approximately 5,000 data
points. In comparison, very little coupled data sets are available for estuaries to perform similar analysis.
The tools, methods and thresholds developed for bays cannot be applied to estuarine water without
undergoing rigorous assessment for a variety of reasons. Chapman et al. (2001) provides a detailed
explanation of the fundamental physical and chemical differences between the two types of water bodies. The
bioavailability of both hydrophobic organic and inorganic pollutants is strongly influenced by salinity.
Chemical equilibrium may not exist within the highly dynamic environments of estuaries. While many of the
organisms present in bays are also found in estuaries, their tolerance to external stressors may vary greatly.
Within embayments, even during wet years, the denser salt water can provide protection from osmotic shock
to marine benthic organisms while estuarine organisms could be exposed to wide variations in salinity
through tidal fluctuations.
Alternative 1: Develop SQOs for both bays and estuaries as mandated under Chapter 5.6, Division 7
of CWC.
Alternative 2: Develop SQOs for those bays where enough data has been collected to support the
development of appropriate tools and thresholds only. Data is available for San Francisco Bay south
of the San Rafael Bridge, and all enclosed bays south of Point Conception to support development of
these tools. However, this alternative would not comply with Chapter 5.6, Division 7 of the CWC.
Alternative 3: Develop SQOs and an implementation policy for bays first, followed by estuaries in a
phased approach. This alternative would provide the State Water Board with the time needed to
collect data and develop appropriate tools and thresholds for estuarine habitats. The draft policy
could require the collection of data from those water bodies where data is needed to develop
appropriate indicators and thresholds. However, interim measures would still be required to meet the
intent of Chapter 5.6. Interim measures are discussed in Section 2.19.
Example Language: See Sections 3.II.B and 3.V.C.
2.3
To What Sediments Should the SQOs Apply?
Sediment quality programs are designed for specific needs. For example, dredged materials are frequently
evaluated by collecting samples from multiple depths. This is performed because the properties of the
sediment differ at depth, and characterization is required before an appropriate disposal site can be selected.
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For dredged materials characterization, the U.S Army Corps of Engineers (USACE) in coordination with U.S.
EPA have designed a series of methods and tools to assess risk associated with these materials relative to the
disposal sites. Because of the need to assess deep samples, one of the tools used to assess surface sediments,
benthic community is of little utility to USACE/U.S. EPA Dredged Material program. The goal of the State
Water Board objectives is to assess the condition of surficial sediments, which is within the biologically
active layer, where the presence of pollutants has the greatest potential to affect beneficial uses.
Alternative 1: Do not identify specific sediments applicable within the proposed plans.
Alternative 2: Surficial sediments only. The tools that have been developed are intended solely to
assess the biologically active layer.
Suggested Language: See Section 3.II.C.
2.4
Should the Plan Address the Applicability to Sediment Cleanup Actions?
The SQOs and supporting tools could be applied to determine what sediments within a specific area are
protected or degraded for benthic communities. However, these tools may not protect all species in a water
body.
Baseline: Regional Water Boards require human health or ecological risk assessments to assess the
exposure to all receptors. The relative risks posed to each receptor are calculated to determine which
receptors are most sensitive to the pollutants of concern.
Alternative 1: Do not specifically address the application of SQOs to sediment cleanup actions. The
Regional Water Boards retain the discretion to apply the SQOs and supporting tools to cleanup
activities, where appropriate.
Alternative 2: Prepare language describing how and when the SQOs could be applied to cleanup
actions. This policy could be applied to assist in characterizing risk at cleanup action sites when the
receptors of interest, the exposure type, and scale of effort are identical or similar to those protected
by this policy. The exposure receptor scenarios not protected by this policy would need to be
evaluated using ecological and human health risk assessment guidance such as that prepared by the
Department of Toxic Substances Control (DTSC), the Office of Environmental Health Hazard
Assessment (OEHHA), and U.S. EPA.
2.5 How Should the Policy Apply to Dredged Materials?
Section 13396, Division 7, CWC states that the State and Regional Water Boards shall not grant approval for
a dredging project that involves the removal or disturbance of sediment that contains pollutants at or above
the (SQOs) established pursuant to Section 13393 unless the board determines all of the following:
(a): the polluted sediment will be removed in a manner that prevents or minimizes water quality
degradation.
(b): polluted dredge spoils will not be deposited in a location that may cause significant adverse
effects to aquatic life, fish, shellfish, or wildlife or may harm the beneficial uses of the receiving
waters, or does not create maximum benefit to the people of the State.
(c): the project or activity will not cause significant adverse impacts upon a federal sanctuary,
recreational area, or other waters of significant national importance.
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California SQOs for enclosed bays and estuaries are being developed to protect sensitive aquatic organisms
and other beneficial uses from the adverse effects of exposure to pollutants present in in-place surficial
sediments. Section 13396, Division 7 makes it clear that SQOs apply to dredged material. However, Section
13396 also allows dredged material that exceeds SQOs to be approved for discharge into waters of the State
of California when conditions (a)-(c) are met. One difficulty is that some of the procedures used by
California to determine the SQOs are not technically applicable to sediments below the biologically active
layer (e.g., benthic community analysis). Dredged material, however, is typically composed primarily of
sediments from below the biologically active layer. In addition, some of the test species used to determine the
California SQOs are not necessarily appropriate to use for dredged material testing in all cases. The federal
evaluation procedures discussed below were specifically developed to characterize the full spectrum of
dredged material (not just surface sediments) in order to determine suitability for aquatic discharge in a
variety of disposal or placement scenarios. Furthermore, the federal procedures emphasize conducting these
dredged material evaluations in a nationally consistent manner.
Under the authority of the federal Clean Water Act (CWA) and the Marine Protection, Research, and
Sanctuaries Act (MPRSA), and their implementing regulations, the USACE and U.S. EPA jointly developed
national testing guidance manuals for dredged material (the Inland Testing Manual or ITM for non-ocean
waters, USACE and U.S. EPA 1998; and the Ocean Testing Manual or OTM for ocean waters, USACE and
U.S. EPA 1991). These manuals utilize a tiered, effects-based evaluation scheme to determine the suitability
of dredged material for aquatic placement or disposal. Each of these national sediment-testing manuals is
implemented under a national Technical Framework for Dredged Material Management (“Framework”) also
jointly published by the USACE and U.S. EPA. (1992). The purpose of the Framework is to facilitate
consistency in how the sediment evaluation procedures are applied within and between various areas of the
United States. In addition, the Framework describes the broader regulatory context within which sediment
evaluations conducted under the ITM or OTM are carried out so as to meet the overall goals of the CWA and
MPRSA. In particular, under the Framework, suitability determinations for aquatic discharge of dredged
material take into account not only the technical sediment test results from the ITM or OTM, but also the
characteristics of the individual disposal sites and the practicability of alternatives to aquatic disposal
(including beneficial reuse alternatives).
Certain other federal programs that otherwise address contaminated sediments generally defer to this
Framework when it comes to management of dredged material. For example, in U.S. EPA Region 9,
U.S. EPA regularly allows navigation dredging to continue within the boundaries of sediment remediation
study areas for projects in the Remedial Investigation/Feasibility Study (RI/FS) stage under the
Comprehensive Environmental Recovery, Cleanup, and Liability Act (CERCLA), provided that the dredged
material is first specifically evaluated under the Framework, and its discharge is managed under a CWA
Section 404 or MPRSA Section 103 permit. Similarly, at the national level, U.S. EPA excluded dredged
material from the definition of hazardous waste under Subtitle C of the Resource Conservation and Recovery
Act (RCRA), when it is subject to a CWA Section 404 or MPRSA Section 103 permit. As U.S. EPA noted in
the Hazardous Remediation Waste Management Requirements (HWIR-Media) Final Rule (U.S. EPA 1998A):
“Dredged material that is subject to the requirements of a permit that has been issued under 404 of the
Federal Water Pollution Control Act (33 U.S.C.1344) or section 103 of the Marine Protection,
Research, and Sanctuaries Act of 1972 (33 U.S.C. 1413) is not a hazardous waste.”
“Testing procedures under the CWA and MPRSA … are better suited to the chemical and
biological evaluation of dredged material disposed of in the aquatic environment… These tests
are specifically designed to evaluate effects such as the potential contaminant-related impacts
associated with the discharge of dredged material into oceans and waterways of the United
States… The Agency believes that the CWA and MPRSA permit programs protect human
health and the environment from the consequences of dredged material disposal to an extent
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that is at least as protective as the RCRA Subtitle C program. These programs incorporate
appropriate biological and chemical assessments to evaluate potential impacts on water column
and benthic organisms, and the potential for human health impacts caused by food chain
transfer of contaminants. As improved assessment methods are developed, they can be
incorporated into these procedures. The programs also make available appropriate control
measures (for example, 40 CFR 230.72) for addressing contamination in each of the relevant
pathways.”
Under the federal Framework (USACE and U.S. EPA, 1992) the ITM and OTM provide for application of
relevant chemical sediment quality criteria (SQC) or Sediment Quality Standards (SQS) issued by U.S. EPA
or by a state, respectively, as screening step in “Tier I” or “Tier II” of their evaluation procedures.
Exceedance of SQC or SQS indicates the need for direct effects-based testing at a higher tier. Any numeric
chemical SQOs that California promulgates could be applied in this manner. Section 13396 Division 7
provides that even when California SQOs are exceeded, dredging and discharge may still be allowed when
conditions (a)-(c) are met. As described below, the higher-tier evaluation procedures of the ITM or OTM,
and other considerations of the CWA and MPRSA as described in the Framework, provide an appropriate and
consistent basis for the State to determine whether conditions (a)-(c) have in fact been met.
Condition (a) requires that the polluted sediment will be removed in a manner that prevents or
minimizes water quality degradation. This condition focuses on the dredging (or removal) site itself,
as opposed to the dredged material disposal site. It is addressed by any Best Management Practices
(BMPs) or special conditions, incorporated in the dredging permit(s) or other authorizations, that
federal or State agencies (including the State and Regional Water Boards) determine to be necessary
for the protection of water quality and beneficial uses. These may include monitoring; constraints on
dredging equipment type; operation; and timing, control technologies such as silt curtains, etc. The
federal evaluation Framework generates specific information relevant to making determinations about
the need for any controls at the dredging site, via physical-chemical characterization and via the water
column (suspended-liquid phase) bioassays conducted on dredged material samples.
Condition (b) focuses on the discharge of dredged material at the disposal or placement site. The
evaluation procedures in the ITM and OTM were specifically designed to address each of the relevant
pollutant exposure pathways that may be associated with dredged material discharges at aquatic
disposal sites. These procedures provide for the comprehensive physical, chemical, and biological
evaluation of the specific sediments to be dredged and discharged. Biological testing includes both
liquid-suspended phase and solid phase sediment testing using appropriately sensitive indicator
organisms that cover a range of functional feeding types. There is flexibility to use appropriate
species for different dredged material types and situations. When necessary, information from the
bioaccumulation tests can be readily used to assess the environmental risk of food web transfer of
pollutants to different trophic levels. The national testing manuals also provide for updating the
specific tests used; for example, to include regionally important species or as more sensitive tests
(possibly including chronic/sublethal assays) are developed sufficiently for reliable regulatory use
nationwide.
Another important consideration is that dredged material that may pose a risk at a particular disposal
site or when managed in a particular manner, may not pose such a risk at a different disposal site or if
managed in a different manner. The overall federal Framework incorporates CWA and MPRSA
provisions that ensure suitable determinations take into account all relevant sediment-specific and
disposal site-specific factors, and any management actions necessary to minimize adverse impacts.
SQOs as stand-alone factors cannot do this.
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Condition (c) is consistent with already existing requirements of the CWA and MPRSA programs. In
particular, the USACE generally may not authorize the discharge of dredged (or fill) material into
waters of the United States that would cause the kinds of impacts listed in 40 Code of Federal
Regulations (CFR) Part 230.10, including significant impacts to designated Marine Sanctuaries,
whether such impacts are caused by pollutants associated with the sediments or simply by the
physical discharge of the sediments. In addition, the CWA program focuses on identifying and, to the
maximum extent possible, avoiding impacts to “aquatic resources of national importance.”
Baseline: USACE, under the authority of the federal CWA and MPRSA and in coordination with
U.S. EPA, prepared the ITM (USACE and U.S. EPA 1998) and the OTM (USACE and U.S. EPA
1992) to address the suitability of dredged material for disposal. These manuals are not intended to
assess in-place sediments; rather, these methodologies were designed to assess potential effects that
may occur during or after disposal of the dredged materials. At the regional level, USACE, U.S.
EPA, State Water Board staff, and staff from other State agencies have also prepared water body
specific guidance and formed dredged materials management teams to streamline the onerous multijurisdictional regulatory process (USACE et al, 2001).
Alternative 1: SQOs should be applicable to dredged material. The proposed SQOs could be
applied to dredged materials; however, collection of this information would not eliminate the need to
perform the suitability tests described in the ITM or the OTM in accordance with the federal CWA or
MPRSA.
Alternative 2: SQOs should not be applicable to dredged materials. These SQOs and supporting
tools were intended to evaluate beneficial uses protection and, as a result, only focus on the in-place
biologically active layer. The Dredged Materials program was designed to measure average bulk
properties of sediment to determine both the appropriate method of disposal or reuse and assess
potential effects caused by the dredging and disposal action. While some tools are similar, the
application and implementation of the tools differs significantly.
Alternative 3: SQOs would only apply under specific conditions specified in section 13396.
Suggested Language: See Section 3.II.D.
2.6
What Beneficial Uses Should be Specifically Addressed within the
Proposed SQO Plan?
Chapter 5.6, Division 7 of the CWC, requires the State Water Board to develop SQOs for the reasonable
protection of beneficial uses. State and Regional Water Boards are required to protect all beneficial uses
designated within each water body. Beneficial uses established for bays and estuaries are presented in
Table 1. Within the context of this program, State Water Board staff considered those beneficial uses that met
the following criteria.
o
Relationship between the beneficial uses and pollutants in sediment. Some beneficial uses are
unaffected by pollutants in sediments. Other beneficial uses are clearly affected by pollutants in
sediment but are also highly influenced by natural and anthropogenic water quality factors. Other
beneficial uses are linked to pollutants in sediments that have not been considered within the context
of this program such as indicator bacteria.
o
Ability to utilize robust indicators to measure the potential risk to each beneficial use.
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o
Ability to consistently assess the risk to the beneficial use within the context of a sediment quality
regulatory program.
Table 2.1 Beneficial Uses for Enclosed Bays and Estuaries
Beneficial Uses
Description
Industrial Service
Supply
Uses of water for industrial activities that do not depend primarily upon water
quality including, but not limited to, mining, cooling water supply, hydraulic
conveyance, gravel washing, fire protection and oil well repressurization.
Uses of water for shipping, travel, or other transportation by private military or
commercial vessels.
Uses of water for recreational activities involving body contact with water where
ingestion of water is reasonably possible. These uses include, but are not limited
to, swimming, wading, waterskiing, skin and scuba diving, surfing, whitewater
activities, and fishing, and uses of natural hot springs.
Uses of water for recreational activities involving proximity to water but not
normally involving contact with water where water ingestion is reasonably
possible. These uses include, but are not limited to, picnicking, camping,
boating, tide pool and marine life study, hunting, and sightseeing, or aesthetic
enjoyment in conjunction with the above activities.
Uses of water for commercial or recreational collection of fish, shellfish, or other
organisms in oceans, bays, and estuaries including, but not limited to, uses
involving organism intended for human consumption.
Uses of water for aquaculture or mariculture operations including, but not limited
to, propagation, cultivation, and maintenance or harvesting of aquatic plants and
animals for human consumption or bait purposes.
Uses of water that support estuarine ecosystems including, but not limited to,
preservation and enhancement of estuarine habitats, vegetation, shellfish or
wildlife (e.g., estuarine mammals, waterfowl, shorebirds), and the propagation
sustenance and migration of estuarine organism.
Uses of water that support marine ecosystems including, but not limited to,
preservation or enhancement of marine habitats vegetation such as kelp, fish,
shellfish, or wildlife habitats (e.g., marine mammals, shorebirds).
Includes uses of water that support designated areas or habitats such as
established refuges, parks, sanctuaries, ecological reserves, or Areas of Special
Biological Significance where the preservation or enhancement of natural
resources requires special protection.
Uses of water that support habitats necessary for the survival and successful
maintenance of plant or animal species established under State/or federal law as
rare, threatened, or endangered.
Uses of water that support habitats necessary for the migration, acclimatization
between freshwater and salt water, and the protection of aquatic organism that are
temporary inhabitants of waters within the region.
Uses of water that support high quality aquatic habitats suitable for the
reproduction and early development of fish.
Navigation
Water Contact
Recreation (1):
Non-contact Water
Recreation (2):
Ocean Commercial
and Sport Fishing
Aquaculture
Estuarine Habitat
Marine Habitat
Preservation of
Biological Habitats
of Special
Significance
Rare Threatened or
Endangered
Species
Migration of
Aquatic Organism
Spawning,
Reproduction
and/or Early
Development
Shellfish
Harvesting
Uses of water that support habitats suitable for the collection of crustaceans and
filter-feeding shellfish (e.g., clams, oysters, and mussels) for human consumption
and commercial or sport purposes
The beneficial uses that best meet these criteria consist of Marine and Estuarine Habitat, Commercial and
Sport Fishing, Rare and Endangered Species. All of these beneficial uses can be severely affected by
pollutants in sediment and assessed using the indicators described in the following Section.
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Alternative 1: All beneficial uses: Municipal, Industrial, Rec1&2, spawn/reproduction/development.
Alternative 2: Beneficial uses linked to specific receptors (Examples: Marine and Estuarine Habitat,
Commercial and Sport Fishing, Rare and Endangered Species).
Suggested Policy Language: Section 3.III.A.
2.7
What Receptors Should be Targeted for Protection?
Selection of appropriate receptors is a critical element of every standards development proposal. Potential
sediment-related receptors include demersal fish, benthic macro-invertebrates, aquatic macrophytes, marine
birds, and mammals. Each of these receptors is essential to support a healthy ecosystem. Humans are also
potentially affected through the consumption of fish tissue containing contaminant residues. Selecting a
receptor as a primary indicator of beneficial use protection is relatively straightforward. For example, human
health is an obvious receptor to assess Commercial and Sportfishing. Endangered species such as the Least
Tern could be an appropriate receptor to assess Rare and Endangered Species Beneficial Uses protection.
Selection of appropriate receptors to assess risk to other beneficial uses is more difficult because of the broad
nature of these beneficial uses (See Table 1). For beneficial uses such as Estuarine Habitat and Marine
Habitat, many different receptors could be applied. Within the context of this program, receptors were
considered based upon the following criteria:
o
o
o
o
o
o
Ecological Importance.
Potential for direct or significant exposure.
Strong link to pollutants in sediment.
Response to pollutant exposure understood.
Availability of tools that can reliably measure response.
Successfully applied in sediment monitoring programs within other sediment monitoring programs in
the country.
Fish are an important receptor that can be affected by pollutants in sediments and pollutants that
bioaccumulate up the food chain. Fish are ecologically and economically important and provide a source of
food to many people. Fish are relatively long lived and exhibit a variety of responses to stress. In terms of a
sediment specific receptor, fish exhibit many characteristics that limit their utility in a regulatory framework.
Many fish are highly mobile, and, as a result, they can avoid highly impacted areas (Gibson et al 2000). Their
mobility also limits the ability to qualitatively assess exposure without detailed long-term studies. Mobility
within unconfined water bodies such as bays and estuaries also makes it difficult to utilize community
attributes as a measure of fish health. Fish populations also respond rapidly to environmental disturbance or
habitat changes. External anomalies such as fin erosion, lesions, and external parasites can be more sensitive
indicators of contaminant effects than community integrity and have been utilized within monitoring
programs by coastal Publicly Owned Treatment Works (POTWs) or regional monitoring programs in the
Southern California Bight (Schiff et al 2001). However, these effects cannot be directly linked to pollutants
in specific sediments without significant and detailed site-specific studies.
Aquatic macrophytes are the most important primary producers and provide stability to the substrate as well
as critical habitat for fish and invertebrates. Aquatic macrophytes can respond to pollutants in sediments;
however, water quality factors may play a more significant role (Gibson, 2000).
Benthic communities are recognized as the optimal sediment receptor for several reasons. They play a critical
role in aquatic ecosystem health because they:
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o
o
o
o
Digest a significant portion of the organic detritus that settles out in bays and estuaries.
Significantly enhance sediment mixing and oxygenate deeper sediments that stimulate bacteria
driven biogeochemical processes.
Create habitat that enhances recruitment for other organisms.
Provide food for most fish species that utilize bays and estuaries. Waterfowl and wetlands birds
also rely on benthic invertebrates as a primary food source.
As an aquatic life indicator of sediment quality, benthic communities also exhibit the following characteristics
(Jackson et al 2000, Gibson et al 2000):
o
Benthic communities are an in-situ measure of actual conditions and biological effects that are or
have occurred within surface sediments. Other tools commonly applied such as laboratory toxicity
tests are at best surrogate measures that may or may not be reflective of actual conditions.
o
Benthic invertebrates typically spend at least one or all life stages in direct contact with bottom
sediments and characteristically exhibit limited range or mobility. This long-term exposure scenario
allows for sublethal toxic effects to cause subtle changes in community structure. Other receptors
such as fish and birds are more difficult to utilize because of their mobility and migratory.
o
The great variety of taxa within a healthy benthic community represents many different feeding and
reproductive strategies that create a great range in sensitivity or tolerance to pollutants and other
stressors. These tolerances can be used collectively to identify relatively subtle community responses
above reference conditions creating a very robust tool.
o
A variety of tools have been used to support the assessment of benthic community health in addition
to community measures. These tools include sediment toxicity tests and empirical sediment quality
guidelines (SQGs).
o
Benthic communities are used by many State and federal agencies to evaluate the effects associated
with impaired sediments, and to assess the effectiveness of mitigation actions. Existing data and
assessment tools have been developed for many water bodies throughout the nation. While variability
is always a factor when evaluating biological communities, compared to other indicators, the analysis
of benthic community data does not rely on complex food web fate and transport studies and models
to link a pollutant or stressor to a specific region or trophic level.
The State Water Board is required to protect all receptors associated with a specific beneficial use. However,
many receptors are not understood well enough to develop tools and define appropriate thresholds for
measuring the health of the receptor, or the linkage to pollutants in sediments is easily overshadowed by other
factors.
Baseline: Selection of appropriate receptors for the assessment of sediment quality is site or water
body specific with the final decision approved by the Regional Water Board.
Alternative 1: All potential receptors including aquatic plants, plankton, bacteria. In order to protect
all receptors, detailed ecological risk assessments would be required for each water body of concern.
Alternative 2: Variety of important and ecologically relevant receptors. The process could focus on
only the most sensitive organisms; however, sensitivity is specific only to types or groups of
pollutants. As with Alternative 1, the application of different indicators would require extensive use
of best professional judgment and is counter to the argument for statewide consistency of assessment
tools.
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Alternative 3: Important, relevant, and understood receptors (benthic invertebrates, and human
health) exposed either directly or indirectly to pollutants in sediments. This alternative focuses on
those sensitive and ecologically relevant receptors that have been evaluated and applied as sentinel
organisms in sediment quality programs throughout the nation. This alternative would utilize the
following three sediment-related exposure receptor relationships:
1. Benthic communities exposed directly to pollutants in sediment.
2. Human health exposed indirectly through fish and shellfish tissue.
The receptors and corresponding exposures must be clearly described in the policy. The selection of
these receptors is not intended to trivialize the importance of other receptors. Receptors such as fish
and wildlife are assessed often during the assessment of contaminated sediments through ecological
risk assessment. These detailed site-specific studies are the appropriate mechanism to evaluate risk to
those receptors not considered within the proposed plan. Additional receptors can be evaluated in
later phases of the program.
Suggested Policy Language: See Section 3.III.A.
2.8
How Should the Protected Condition be Defined for Benthos?
The protected condition establishes the standard or level of integrity that must be maintained. The protected
condition is typically defined for benthic community by a reference condition. However, the reference
condition is itself a source of disagreement. To some, reference condition should represent a hypothetical
pristine community that could have existed prior to of the industrial age. In the past, Regional Water Boards
have defined reference on a site-specific basis to determine impacts from specific source areas. The State
Water Board has defined reference condition in the Water Quality Control Policy for Developing California’s
Clean Water Act Section 303(d) List “as the characteristics of water body segments least impaired by human
activities. As such, reference conditions can be used to describe attainable biological or habitat conditions
for water body segments with common watershed/catchment characteristics within defined geographical
regions.”
Baseline: The protected condition is established on a water body or site-specific basis depending
upon the programmatic goals of the action (site cleanup versus water body listing).
Alternative 1: Do not define the protected condition. This alternative would allow the Regional
Water Board staff to continue establishing the protected condition on a site-specific or water body
specific basis.
Alternative 2: Define reference condition on a site-specific basis. This approach does not attempt to
identify the healthiest or least affected community within a habitat; rather, this approach is used to
distinguish impacts associated with a specific source from other impacts within a broader area.
Alternative 3: Utilize the definition from the State Water Board’s Water Quality Control Policy for
Developing California’s Clean Water Act Section 303(d) List and define reference communities
based upon habitat. Benthic communities are defined by habitat condition such as salinity, grain size,
and depth. This concept can be utilized to develop sensitive and robust tools with significant utility
and broad applicability. The disadvantage of this approach is the need for large data sets to ensure
that the reference condition is well understood.
Staff Recommendation: Alternative 3:
Suggested Policy Language: See Section 3.V.F.3 and 3.V.G.4.
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2.9 How Should the Protected Condition be Defined in Phase I for Human
Health?
The benchmark for protecting human health from the consumption of carcinogens in fish tissue is based upon
the exposure (consumption rate) and the acceptable cancer risk.
Consumption Rate: The State Water Board and U.S. EPA have consistently established human health based
water quality objectives based upon consumption rates of the general population and sportfishers. OEHHA,
which is responsible for establishing fish consumption advisories in California, also bases its advisories on
general population and Sportfishing consumption rates. These consumption rates vary from 6.5 grams per
day established by U.S. EPA for California under the California Toxics Rule (CTR) to 21 to 22 grams per day
utilized by OEHHA (1999) and the State Water Board’s California Ocean Plan (2004).
Baseline: The general population and Sportfisher consumption rates are used in the Regional Water
Boards’ Water Quality Control Plans (Basin Plans), and Total Maximum Daily Loads (TMDLs).
These consumption rates range from 6.5 grams per day (CTR) to 32 grams per day (Regional Water
Quality Control Board – San Francisco Bay Region, 2004)
Alternative 1: General population (examples: 6.5, 17.5 grams per day).
Alternative 2: Sportfishers (examples: 6.5, 16, 22, 32 grams per day).
Alternative 3: Sensitive populations (example: 160 grams per day).
Alternative 4: Propose two consumption rates for assessing risk that consider both the general
population (17.5 grams per day) and sportfishers (32 grams per day).
Alternative 5: Do not specify a consumption rate.
Alternative 6: Specify consumption rates utilized by OEEHA for fish consumption risk assessment
and advisories for bays and estuaries.
Suggested Policy Language: See Section 3.VI.
Cancer Risk: U.S. EPA states that cancer risk factors ranging from 10-4 to 10-6 are protective of human
health (U.S. EPA 1995A) and are consistent with the federal CWA. OEHHA utilizes a cancer risk factor of
10-5 when establishing fish tissue advisories for legacy pollutants considered carcinogenic (OEHHA, 1999).
Recently, OEHHA proposed using a cancer risk factor of 10-4. U.S. EPA also supports this 10-5 risk factor in
the development of fish tissue advisories (U.S. EPA, 2000B).
Baseline: Variable 1 in 100,000, to 1,000,000.
Alternative 1: Cancer risk 1 in 10,000.
Alternative 2: Cancer risk 1 in 100,000.
Alternative 3: Cancer risk 1 in 1,000,000.
Alternative 4: Cancer risk factor 1 in 100,000 with guidance for the selection of site-specific risk
factors.
Alternative 5: Do not specify a cancer risk.
Alternative 6: Specify cancer risk factors utilized by OEHHA for fish consumption risk assessment
and advisories for bays and estuaries.
Suggested Policy Language: See Section 3.VI.
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Environmental Justice
Environmental Justice (EJ) is defined by California statute as: "The fair treatment of people of all races,
cultures, and incomes with respect to the development, adoption, implementation, and enforcement of all
environmental laws, regulations, and policies." A principal goal of the State and Regional Water Boards'
Environmental Justice Programs is to integrate environmental justice considerations into the development,
adoption, implementation, and enforcement of Board decisions, regulations, and policies. Identifying,
assessing, and managing environmental justice-associated risks is a very difficult process because these issues
frequently involve a very small portion of the population that has unique dietary habits. In order to develop a
plan that is responsive to environmental justice issues, staff at the State Water Board will need to work hand
in hand with the Regional Water Boards, OEHHA, and DTSC to develop approaches that can effectively
identify those populations at risk and the specific diets that increase those risks. Although resource intensive,
this would allow management decisions to be made based on what the true risks are rather than the
assumptions used currently, which are based upon more general consumption surveys. As a result, decisions
can be made with confidence that will protect specific individuals at high risk. Addressing this issue in Phase
I is problematic because the technical team has not been able to address all the human health implementation
issues in time for inclusion within Phase I.
Baseline: Regional Water Boards respond to EJ issues at the local level.
Alternative 1: Do not address EJ in the plan.
Alternative 2: Develop a proposed approach that addresses EJ issues in Phase II amendments, after
staff has more fully developed human health-based SQOs and robust implementation tools and
thresholds.
Suggested Policy Language: Not applicable.
2.10 What Lines of Evidence are Needed to Assess Sediment Quality?
Water quality is routinely assessed based on a single line of evidence (LOE), chemical-specific concentrationbased thresholds developed from toxicological studies. A single LOE is appropriate in the water column
because the binding effects of other water column constituents are well understood, and the performance of
these chemical-specific criteria is reproducible under a variety of conditions (U.S. EPA, 1985, 1991).
Moreover, there is a single predominant means for chemical exposure in the water column, transport across
the gills. As a result, scientists have been able to integrate this information to describe site-specific
bioavailability of chemical contaminants using tools such as the Biotic Ligand Model (Paquin et al, 2002).
Sediment, however, is a more complex matrix that makes establishment of an objective based on chemical
concentration alone problematic. There are two primary factors that create this complexity: variations in the
bioavailability of sediment-associated contaminants, and multiple pathways of exposure resulting in both
direct effects (from contact with the sediment) and indirect effects (as a result of bioaccumulation and transfer
to higher trophic levels). Bulk measures of chemical concentration fail to differentiate between the fraction
that is tightly bound to sediment and that which is found in interstitial waters and more available for transport
across the gill. Further complicating interpretation of chemical data is that transport of chemicals in
interstitial waters across the gill is not the only mechanism for exposure, as many benthic organisms ingest
the sediment and can uptake chemicals sorbed onto particles. Thus, even chemical measurement approaches
that attempt to differentiate interstitial chemical concentrations, such as using equilibrium partitioning models
or direct measurement of pore water chemistry, do not fully describe chemical bioavailability in the sediment.
Only the bioavailable fraction of pollutant has the potential to alter basic functional processes such as oxygen
transfer or reproduction
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Factors that affect bioavailability of contaminants in sediment include the proportion of organic matter, grain
size, hydrogen ion activity (pH), and aerobic state, salinity, chemical form of the pollutants, and the
composition and mineralogy of the sediment itself (Chapman et al 2001, U.S. EPA 2000A). These factors
can create large spatial and temporal differences in pollutant bioavailability within a given region or water
body (Chapman et al, 2001, U.S. EPA 2001A).
Assessing the indirect effects of sediment contamination presents additional challenges besides those
identified for direct effects. As predators consume many prey throughout their lifespan, bioaccumulative
pollutants with an affinity for fatty tissue, such as DDT, polychlorinated biphenyls (PCBs), and methyl
mercury can build up to levels many times greater then those observed in lower trophic levels or in the
sediment (biomagnification). Numerous studies have demonstrated that the biomagnification of sedimentassociated compounds can cause deleterious effects in fish and in wildlife or human consumers of seafood
(Beyer et al. 1996). The presence of multiple trophic levels and different types of receptors for effects creates
additional complexity and uncertainty in the interpretation of sediment contamination data.
A thorough understanding of fish communities, trophic structure and uptake, and the pollutant contribution
from all sources must be assessed in order to quantifiably link sediment and fish tissue contaminant levels.
Fish are highly mobile; at a given site, a portion of an organism’s contaminant body burden may result from
uptake from other locations, or from other sources such as the overlying water column. Although specific
case studies indicate that certain contaminants are accumulated from the sediments (Gobas et al, 2002), this
could vary on a site-by-site basis. Variation in home range can affect the relative impact of contamination at
a specific site as a result of the heterogeneous distribution of chemicals in the sediment. Variations in food
web structure among locations can also cause differences in contaminant bioaccumulation (Gobas et al,
2002).
As a result of the factors described above, sediment quality indicators based on pollutant concentrations in
sediment have only limited utility when used by sediment managers unless bolstered by effects data such as
toxicity and benthic community disturbance (Chapman 1990, Ingersoll et al 2002c, Wenning et al 2002).
This limitation is acknowledged in the ecological risk assessment process, where measures of both chemical
exposure and effects are required in order to evaluate the potential for adverse impacts due to either the direct
or indirect effects of contaminants.
Other LOE applied to sediments also have potential flaws that make them inappropriate for establishment of
SQOs when used alone. Toxicity tests improve in some ways on chemical measurements because they
integrate the effects of multiple contaminants- even those chemicals that are not routinely measured. Toxicity
tests are problematic, though, because the presence of natural factors such as ammonia, hydrogen sulfide, or
physical abrasion can lead to spurious results. Moreover, toxicity tests are typically conducted under
laboratory conditions using species that may not occur naturally at the test site, making it difficult to interpret
ecological significance of the results when used alone (Chapman et al 2001). This interpretational difficulty
is compounded by the demonstrated difference in sensitivity among different types of toxicity tests and test
species.
Benthic community condition is a good indicator because the benthos are directly exposed to sediment
contamination and are one of the target biological resources the SQOs are intended to protect. However, their
use alone is problematic because they are potentially affected by a large number of factors other than
chemical contamination. Without chemistry or toxicity data for confirmation, it is difficult to distinguish
whether degraded benthic communities resulted from chemical exposure or from physical disturbance, such
as an anchor or prop-wash.
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Bioaccumulation is also a useful measure, but sediments classified based on only a tissue
uptake/bioaccumulation LOE would not account for toxicants that tend not to bioaccumulate in tissues of
biota. Most trace metals and polynuclear aromatic hydrocarbons (PAHs) do not bioaccumulate in tissues, so
their presence and toxicity would not be accounted for in such an approach. In addition, impacts from readily
biotransformed pollutants would not be addressed by this LOE. The measurement of fish or shellfish tissue
contamination provides an important measure of potential effects to wildlife or human consumers, but the
mobility and varied life histories of the species makes it difficult to associate the effects with sediment
contamination in specific locations.
For these reasons, multiple lines of evidence (MLOE) that represent both contaminant exposure and effects
are frequently used in sediment assessments. The State Water Board’s Bay Protection and Toxic Hotspots
Cleanup Program relied primarily on MLOE to make critical decisions regarding management of sediment in
bays and estuaries throughout the State (Anderson et, al 1997, 1998, Fairey, R, 1998, Hunt et al, 1998).
Virtually all of the estuarine ambient monitoring programs in this country rely on some form of the sediment
quality triad, where chemistry and multiple measures of biological effect are used together to assess sediment
quality (Crane, J.L., et al 2000, Ingersoll, C. et al. 2002, MacDonald et al, 2003, U.S. EPA, 1998, 2004).
These include the two largest nationwide estuarine monitoring programs, U.S. EPA’s Environmental
Monitoring and Assessment Program and the National Oceanic and Atmospheric Administration’s (NOAAs)
National Status and Trends Program, as well numerous regional monitoring programs, including those for the
Great Lakes, Puget Sound, San Francisco Bay, Chesapeake Bay, Southern California Bight, Tampa Bay, and
New York/New Jersey harbors.
The triad concept has been used and published in the United States, Canada, Australia, United Kingdom,
France, the Netherlands, and Brazil, among others. Most regulatory programs, including those that control
open water disposal of dredged material, require tests of sediment chemistry, toxicity, and bioaccumulation.
Comprehensive ecological risk assessments invariably use a weight of evidence approach from multiple kinds
of assays and tests to estimate and manage risks at waste sites. Even the national chemical benchmarks issued
by U.S. EPA that rely on one LOE encourage users to apply them in concert with other sediment assessment
tools in making management decisions.
While various MLOE approaches have been used to describe and classify sediment quality, they have
typically been applied for site-specific or regional assessments. Moreover, MLOE applications are often
based on use of best professional judgment (BPJ) for combining the individual LOE. BPJ will be ineffective
for use in SQOs because the expertise of the individuals applying them will vary considerably across the
State, and there is a need for statewide consistency in their application. While there is no direct precedent for
translation of MLOE into criteria, standards, or objectives, there are some applications that move in that
direction from which lessons can be learned. The State of Washington SQSs have provisions to use chemical,
toxicological, and benthic composition data to classify sediments for multiple purposes, including disposal of
dredged material. The Tampa Bay Estuary Program has adopted a triad of measures of sediment quality for
management purposes there. The States of Minnesota and Illinois, in partnership with the U.S. EPA
Assessment and Remediation of Contaminated Sediment (ARCS) Program of the Great Lakes National
Program Office, use the triad of measures to assess sediment quality for management in the Great Lakes.
Baseline: Sediment quality assessment programs throughout the nation rely on MLOE to assess
impacts to beneficial or designated uses.
Alternative 1: Do not specify LOE.
Alternative 2: Base policy on application of a single LOE. This alternative would base the policy on
a single LOE, such as sediment toxicity, chemistry, or benthic community. Such an approach would
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be very simple to implement; however, any single LOE is affected by confounding factors,
measurement errors, and variability and would contradict the approach recommended by U.S. EPA.
Alternative 3: Base policy on application of MLOE. The suite of tools and LOE would be specific
to each receptor.
Suggested Policy Language: See Sections 3.1.A, 3.IV.A, 3.V.A and B.
2.11 What Type of Objectives Should be Utilized in the Proposed Policy?
The State Water Board has the option of establishing narrative or numeric objectives, or some combination of
the two. In order to implement an approach based upon MLOE, consideration must be given to the
importance of each tool. Sediment quality is assessed with a combination of tools and results, in contrast to a
numeric water quality objective for which a single specific measurement may be used. Within this approach,
a narrative objective can be proposed that can be implemented with a high degree of confidence using a
robust suite of tools; the MLOE approach. This approach would also minimize potential conflicts associated
with discordant results. In addition, as better tools are developed to support the narrative objectives, these
tools could be added under amendment while maintaining a consistent narrative objective.
Baseline: Some Basin Plans include narrative requirements; however, implementation is limited and
typically relies on BPJ applied on a case-by-case basis.
Alternative 1: Do not adopt SQOs. This alternative would conflict with Chapter 5.6, which requires
the State Water Board to adopt SQOs.
Alternative 2: Numeric objectives could be developed and proposed for each LOE. However, each
numeric objective would need to be integrated into a weight of evidence approach. The numeric
objective would be meaningless without the other LOE.
Alternative 3: Narrative objectives could be proposed that would be implemented using MLOE and
corresponding thresholds coupled to a data integration process.
Suggested Policy Language: See Sections 3.IV.A and B.
2.12 Should a Pass/Fail or Ordinal System be Utilized in the Evaluation of Each
LOE?
A pass/fail system based on a comparison to a single threshold is simple and easily implemented within a
regulatory program. The pass-fail approach is frequently applied to water quality assessment and is
appropriate in this situation where the dose response relationship is well documented in the laboratory and
validated in surface waters (U.S. EPA 1991). Some applications of the sediment quality triad also use a
pass/fail system to evaluate each LOE. Use of a pass/fail system requires a high level of confidence that the
threshold used is appropriate and protective. The evaluation sediment quality data is complex, and the
available tools do not always provide the high level of confidence needed for establishment of a single
pass/fail threshold (Chapman 1990, Ingersoll et al 2002c, Wenning et al 2002). BPJ is often used to
determine whether a LOE result represents an adverse response, which makes it difficult to establish a
consistent threshold for pass/fail determination. An ordinal system of evaluation has also been used in many
sediment assessment programs. Ordinal systems use multiple thresholds to classify the LOE result into
several categories that reflect the magnitude of response and certainty that an effect is present. Use of an
ordinal system also retains more scientific information regarding the LOE, which provides greater utility for
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review of the assessment and use of the classification in planning and prioritizing subsequent management
actions.
Baseline: Sediment thresholds are currently established using a combination of BPJ and applying
existing SQGs that are available only for pollutant concentrations in sediment.
Alternative 1: Thresholds should only be developed for pass/fail determination.
Alternative 2: Ordinal thresholds should be developed that consider both magnitude and confidence.
This alternative is consistent with the Scientific Steering Committee’s position requesting that the
technical team include magnitude and confidence in threshold development.
Suggested Policy Language: See Sections 3.V.F.3, 3.V.G.4, and 3.V.H.2.
2.13 Should Sediment Toxicity be Used as One of the Suite of Tools Used to
Implement the Direct Effects of SQOs for the Protection of Benthic
Communities?
Sediment toxicity tests are considered an important component of sediment quality assessments (U.S. EPA
2001a, 2004a, 2004b, 2005, DEQ 1995, Wenning et al 2002). Much of the testing has employed acute
amphipod survival methods using protocols established by U.S. EPA (U.S. EPA 1994). Many of the projects
have also included a measure of sublethal toxic effects in sediments using a wide variety of test methods,
including long-term growth tests, elutriate toxicity tests, porewater toxicity tests, and tests of toxicity at the
sediment-water interface. The Environmental Mapping and Assessment Program of U.S. EPA has used
amphipod acute testing in conjunction with a variety of sublethal methods in different parts of the country
(Ringwood et al. 1996, Bay et al. 1998). The State of Washington has a program for monitoring and
assessing sediments that has been in place for nearly two decades using a combination of acute amphipod
tests, polychaete growth tests, and modified elutriate testing with invertebrate larvae (Puget Sound Water
Quality Authority 1995).
Laboratory toxicity tests consist of exposing test organisms to sediments within a controlled environment.
The toxicity test response provides a direct measure of the combined effects of all chemicals present in the
sample and can thus indicate the presence of toxic quantities of chemicals that were not detected or analyzed
for in a chemical analysis. Because toxicity tests are conducted using sediments from the environment, the
results incorporate the effects of sediment characteristics such as organic carbon that can alter the biological
availability of the contaminant. The laboratory environment of the toxicity test allows for the control of
confounding factors such as salinity, temperature, or dissolved oxygen that may vary in the field, thus
permitting a distinction between toxic effects and effects due to natural habitat variability. The toxicity test
result may overestimate or underestimate effects occurring in the field due to variations in the sensitivity of
the test organism or to changes in chemical exposure caused by sediment handling in the laboratory.
Sediment toxicity tests are considered an important component of sediment quality assessments (U.S. EPA
2001a, 2004a, 2004b, 2005, DEQ 1995, Wenning et al 2002). Laboratory toxicity tests consist of exposing
test organisms to sediments within a controlled environment.
Baseline: The State and Regional Water Boards have relied upon sediment toxicity tests.
Alternative 1: Do not consider sediment toxicity tests for measuring direct effects.
Alternative 2: Propose sediment toxicity tests for inclusion in the implementation of direct effects
narrative SQOs.
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Suggested Policy Language: See Section 3.V.A.
2.14 Should the State Water Board Specify the Sediment Toxicity Tests for Use
in Implementing the Narrative SQO?
Various methods for measuring sediment toxicity are available. Key differences between tests include:
species, life history stage, duration, endpoint, and mode of exposure. Different species vary in their
sensitivity to contaminants as a result of physiological differences, body type, and degree of exposure to the
sediment. Crustaceans, bivalves, or polychaete worms are commonly used in toxicity tests, and there is no
single species that is consistently the most sensitive to all contaminants of interest. Various life history
stages, including embryos, juveniles, and adults, are used in toxicity tests. Embryos and juveniles are
generally more sensitive to contaminants than adults, but adult test organisms may be less sensitive to
confounding factors that complicate test interpretation. There are a variety of endpoints that are specific to
each test. The simplest endpoint is survival or lethality which is the endpoint associated with acute tests.
Sublethal test endpoints include growth, reproduction, egg fertilization, embryo development, and
biochemical responses such as DNA damage or cellular stress.
Test duration varies widely among toxicity test methods; tests generally range from 48 hours to 28 days in
length. Longer duration tests may be more sensitive to the effects of chemicals that require bioaccumulation
before toxicity is caused, but they also are more difficult and expensive to conduct. The method of exposure
can also affect the sensitivity of the toxicity test or the data interpretation. Many tests expose the organism
directly to whole sediment, which provides potential chemical exposure from direct particle contact, the pore
water, and from sediment ingestion. Other test methods expose the organism to pore water extracted from the
sediment, an elutriate, overlying water, or a solvent extract of the sediment. These variations in exposure
method are used to facilitate tests with organisms that cannot tolerate sediment contact (e.g., embryos) or to
investigate specific mechanisms of exposure.
Because toxicity test responses are governed by so many different factors, a suite of standard test methods is
often used to measure sediment toxicity in various assessment or regulatory programs. By requiring the use
of specific test methods, (1) consistency is established throughout the State, (2) statewide thresholds can be
developed that minimize subjective decision making, and (3) inappropriate tests will not be performed.
The process of selecting the recommended toxicity methods for the SQO program included reviewing the
literature and consulting with other scientists to identify a set of candidate sediment toxicity protocols that had
the following characteristics: adopted or approved by U.S. EPA, USACE, American Society for Testing and
Material Standards (ASTM), or other states; tolerance of expected sediment physical characteristics; diversity
of taxonomic groups; association between response and sediment exposure; sensitivity to individual
contaminants; and representative of benthic community species.
The selection process resulted in a candidate test method list consisting of acute methods with the four
commonly used amphipod species (Ampelisca abdita, Eohaustorius estuarius, Rhepoxynius abronius, and
Leptocheirus plumulosus) plus six sublethal methods using amphipods (Leptocheirus plumulosus), polychaete
worms (Neanthes arenaceodentata), sea urchins (Strongylocentrotus purpuratus), bivalves (Mytilus
galloprovincialis, Mercenaria mercenaria, Crassostrea virginica), and copepods (Amphiascus tenuiremis).
Toxicity tests on sediment pore water or elutriate samples were not considered for evaluation because of
technical limitations in the methods. Pore water tests are widely used for testing sediment toxicity (Carr and
Nipper 2003), but it is difficult to collect enough sample for testing. Other characteristics of pore water
toxicity tests make these methods less suited for use in the SQO program, including potential changes in
metal toxicity due to oxidation, change in sample pH, sorption of contaminants to test chambers, confounding
effects of ammonia toxicity, and elimination of sediment ingestion as a route of uptake (Ho et al. 2002).
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Elutriate tests were also not included in the list of candidate methods. These tests, where sediments are added
to water with agitation, allowed to settle, and then the water is removed for testing, are often used for testing
the effects of sediment resuspension during dredged material disposal. The elutriate sample is subject to
many of the confounding factors associated with pore water, and the relationship of the results to direct
sediment exposure is not known.
Each of the candidate methods was ranked relative to the following characteristics: organism availability,
method documentation, technical difficulty, sensitivity, precision, and cost. Eohaustorius, Rhepoxynius and
Leptocheirus are recommended as the best choices for acute testing in California. Eohaustorius and
Rhepoxynius have a substantial history of use in California for both monitoring and assessment studies. The
Leptocheirus 10-day test has been conducted in California on a much more limited basis. However, it has
long been used in other parts of the country, especially on the Gulf coast for monitoring and assessment
studies. Leptocheirus is also easily cultured in the laboratory and available year round from commercial
suppliers.
Two sublethal test methods are recommended for use in the SQO program: a 28-day growth test using the
polychaete worm Neanthes arenaceodentata and a 2-day development test using embryos of the mussel
Mytilus galloprovincialis exposed at the sediment-water interface. These two tests had the best combination
of characteristics related to test feasibility, method documentation, and sensitivity. The recommended tests
complement the ability of the acute tests to detect toxicity by providing diversity in test species, length of
exposure, and mode of exposure. The other sublethal tests were not recommended for a variety of reasons,
including incomplete documentation of the method, high cost, and relatively low sensitivity to contaminated
sediments.
Baseline: The State and Regional Water Boards have relied upon sediment toxicity tests, and the
State Water Board selected from methods used in past studies.
Alternate 1: Do not specify toxicity methods.
Alternate 2: Measure acute toxicity as an indicator of benthic condition.
Alternate 3: Measure sublethal toxicity as an indicator of benthic condition.
Alternate 4: Specify combination of acute and sublethal toxicity methods.
Suggested Policy Language: See Section 3.V.F.
2.15 Should Chemical Concentrations in Sediment be Used as One of the Suite
of Tools to Implement the Direct Effects of SQO for the Protection of
Benthic Communities?
Sediment chemistry is considered a well-established and proven sediment quality assessment tool when
applied appropriately with other LOE. Studies have shown that chemical (SQGs) are predictive of the
incidence and magnitude of biological effects, especially in instances of high/low contaminant concentrations.
Predictions of the biological effect based on SQGs have the highest error rates when applied to samples
containing intermediate levels of contamination (Long et al. 1998, Fairey et al. 2001). The predictive ability
of SQGs has also been shown to vary among datasets from different regions (Fairey et al. 2001, Crane et al.
2002), which complicates the selection of the most reliable approach and thresholds for a given application.
Misuse of sediment chemistry guidelines has caused considerable concern over the use of this tool within a
Regional Water Board Basin Plan. The use of chemical SQGs is often accompanied by substantial
uncertainty and controversy, as no single SQG approach is able to account for all of the factors that influence
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contaminant effects. In sediments, if pollutant concentrations are very low or not detected but significant
effects are observed, two possible scenarios exist: (1) a non pollutant related stressor such as physical
disturbance or habitat alteration is the cause of impairment; or (2) a pollutant is present that was not identified
by the suite of analytical methods selected (Chapman 1990, Ingersoll C. et al, 2002c). Both scenarios assume
that the effects data and the chemistry data accurately reflect the conditions at the station. Conversely, if
pollutant concentrations are elevated but effects are not observed, the pollutant may not be bioavailable.
Simple effective approaches to quantify bioavailable fraction of a pollutant in sediment are not currently
available and are not likely to be developed in the near future (U.S. EPA 2005).
Baseline: Sediment chemistry is frequently used as an indicator to assess potential impacts. In this
role, sediment concentrations are compared to various SQGs (ERLs, ERMs, PELs, AETs) either
independently or in conjunction with other LOEs to determine if the pollutants in sediment pose a
risk. In California, there are no current plans or policies that define what guidelines shall be used,
how the guidelines should be applied, or what the appropriate conclusion is that can be made based
solely on chemistry.
Alternative 1: Do not consider sediment chemistry as a direct-effects implementation tool. As
described previously, sediment chemistry is not a measure of the bioavailable fraction of pollutants in
sediment. As a result, this tool would have little or no utility within a state sediment quality program.
Alternative 2: Propose specific sediment chemistry indicators for inclusion in the implementation of
direct effects narrative SQOs. Within the draft policy, sediment chemistry would be proposed as a
surrogate measure of exposure and used only with other LOEs.
Suggested Policy Language: See Section 3.V.A.
2.16 What Sediment Chemistry Indicators Should the State Water Board Use to
Support the Proposed SQO?
A variety of sediment chemistry-based guidelines has been developed from empirical or mechanistic
relationships with biological effects (Barrick et al. 1988, Long et al. 1995, Swartz 1999, Di Toro and
McGrath 2000, Fairey et al. 2001, Field et al. 2002). These “sediment quality guidelines” have been applied
within sediment assessment programs throughout the nation. Empirical guidelines are based on field data
containing paired information on contaminant concentrations and biological effects. Various statistical
approaches are used to relate the chemical concentrations to the frequency or magnitude of biological effects.
Empirical SQGs have broad applicability and can be applied using routine monitoring data, but these
guidelines do not identify the cause of effects. Mechanistic SQGs use an understanding of chemical and
biological processes to predict toxicity and can help identify the cause of effects. Current mechanistic
approaches are based on equilibrium partitioning theory, where sediment chemical concentrations are related
to pore water concentrations. Mechanistic SQGs apply to a limited suite of contaminants, and their
application often requires the collection of specialized information on sediment binding phases that is not
readily available for many sites in California embayments. For potential application in a SQO policy setting,
several empirical SQGs were evaluated, including existing guidelines; regional guidelines calibrated to
California data; and newly developed guidelines.
The guideline approaches evaluated include:
Effects Range Median (NOAA ERM)
The Effects Range Median (ERM) approach (Long et al., 1995) is one of the most commonly used SQGs.
This method is used to identify adverse effects to sediment dwelling marine organisms. The ERM values
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were created from a national database of paired biological effects and sediment contaminant data. Multiple
biological effects indicators were included in the database (this approach is not endpoint specific) and
evaluated for the degree of concordance between chemical and different types of biological responses. Only
the data for which a biological effect was observed in association with elevated chemical concentrations were
used for ERM derivation.
The ERMs were calculated by sorting the data in ascending order of concentration to calculate percentiles.
The ERM corresponds to the 50th percentile (median value) for each chemical and represents the
concentration above which adverse effects are frequently observed. Individual ERMs were combined as a
mean quotient to represent chemical mixture effects. The quotients were calculated by normalizing each
chemical to its respective ERM and subsequently averaging them for each sample.
Mean Sediment Quality Guideline Quotient 1 (SQGQ1)
The mean SQGQ1 is a subset of chemical-specific SQGs from various empirical and mechanistic approaches
(Fairey et al. 2001). The chemical suite includes five metals and four organics. This suite of chemicals was
selected to obtain the strongest relationship to adverse biological effects. SQGQ1 quotients are calculated by
normalizing each chemical value by its corresponding SQG. Then the normalized values for the suite of
chemicals are averaged.
Consensus Median Effect Concentration (Consensus)
The Consensus guidelines represent the integration of different types of SQGs. This approach collated
existing SQGs for chemicals of interest and evaluated them to determine their applicability (Swartz, 1999).
Consensus SQG values have been developed for three levels of biological effect: the threshold effect
concentration (TEC), representing contaminant concentrations below which harmful effects on organisms are
expected to occur infrequently; the median effect concentration (MEC), which represents contaminant
concentrations above which harmful effects are frequently observed; and the extreme effect concentration
(EEC), which represents concentrations where effects are always expected.
Consensus MEC values were calculated by determining the geometric mean of three or more SQGs.
Consensus values were previously derived for PAHs and PCBs in marine and freshwater systems, as well as
for metals and several pesticides in freshwater systems (Swartz, 1999; McDonald et al., 2000). The State and
Regional Water Boards’ program also used Consensus MEC values calculated by SCCWRP for other
chemicals: DDTs, dieldrin, arsenic, cadmium, chromium, copper, lead, mercury, nickel, silver, and zinc
(Vidal and Bay, 2005). The Consensus chemical indicator evaluated in this project was the mean quotient of
the individual Consensus MECs. Individual chemical values were normalized by dividing them by their
corresponding Consensus MEC value, then the normalized values where averaged for each sample.
Logistic Regression Modeling (National Pmax)
The Logistic Regression Modeling (LRM) approach is based on statistical analysis of matching chemistry and
biological effects for amphipod toxicity (Field et al., 1999). Chemistry and toxicity data from national
databases were used for this approach. The LRM method does not yield specific SQG values for each
chemical but, rather, describes the relationship between contaminant concentrations and the probability of
toxicity. This relationship can be used to calculate SQGs based on the level of protection desired.
In the LRM approach, data for individual sediment samples were sorted by ascending concentrations for each
particular contaminant. The data were screened to reduce the influence of samples that did not contribute to
the toxic effects associated with the specific contaminant of interest. A LRM was then applied to the screened
data that described the relationship between the concentration of a selected contaminant and the probability of
observed toxicity. Individual chemical regression models were combined into a single mixture effects model
based on the maximum probability of effects or Pmax (Field et al., 2002). The maximum probability obtained
from the individual chemical models is selected to represent the chemical mixture present in a sample.
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California Effects Range Median (CA ERM)
SQGs analogous to ERMs were calculated using California data. The data were screened to identify toxic
samples (> 20 percent mortality) with chemical concentrations > 2x median concentration of non-toxic
samples. After screening, the data were sorted in ascending order, and the median concentration for each
chemical was calculated (for chemicals with > 10 samples). CA ERM values were calculated for
27 chemicals.
California Logistic Regression Modeling (CA Pmax)
Development of California SQGs based on LRMs followed the methods described in Field et al. (2002).
California-specific models were selected from a library of models that included national models as well as
models derived using the California data sets. The selected models were developed and evaluated based on
amphipod toxicity. The selected models were chosen based on the goodness of fit with the observed
probability of toxicity. Models with high false/positive rates were not used for analysis.
Individual chemical regression models were combined into a single mixture effects model based on the
maximum probability of effects or Pmax (Field et al., 2002). The maximum probability obtained from the
individual chemical models is selected to represent the chemical mixture present in a sample.
Mean Weighted Chemical Category Score (CCS)
The mean weighted chemical category score is a new SQG based on the association between chemicals and
the magnitude of biological response (i.e., category prediction based on toxicity or benthic community
disturbance). Three chemical concentration values defining the biological response levels of no effect are:
(1) low effect, (2) moderate effect, (3) high effect, and (4) a weighting factor reflecting the strength of
association were calculated for each chemical. The chemical values and weighting factor were determined for
each chemical by a statistical process that identified the chemical ranges producing the best agreement with
the biological response categories.
Each constituent’s predicted effect level is then multiplied by its respective weighting factor to produce a
CCS. Individual CCSs were combined as a weighted mean to represent chemical mixture effects. The scores
were summed across all constituents in the sample and divided by the sum of weighting factors to produce the
mean weighted CCS.
Baseline: Sediment chemistry is typically evaluated by comparison to one or more national empirical
SQGs, with little consistency in approach among regions.
Alternate 1: Establish narrative guidance.
Alternate 2: Use existing national empirical SQGs without consideration of actual predictive ability
when applied to California data.
Alternate 3: Use either existing, regional, or new empirical SQGs derived from California data.
Methodologies and thresholds for applications would be selected based upon how the approach
performs within the SQO framework.
Suggested Policy Language: See Section 3.V.H.
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2.17
Should the State Water Board Specify the Method or Index Used to
Assess Community Data?
Benthic communities are found almost universally in aquatic soft sediments and are indicators of choice for
monitoring and assessing anthropogenic effects for two main reasons. First, they possess many attributes
considered desirable in indicator organisms, including limited mobility, diversity of organism types, life
histories that are short enough to reflect recent changes in stressors, and direct exposure to sediment
contamination. Second, they are important components of aquatic food webs, transferring carbon and
nutrients from suspended particulates in the water column to the sediments by filter feeding and serving as
forage for bottom-feeding fishes.
Despite these appealing characteristics, benthic infaunal monitoring data are maximally useful in a regulatory
context only when they can be interpreted in relation to scientifically valid criteria or thresholds that
distinguish “healthy” from “unhealthy” benthic communities. While reducing complex biological data to
index values has disadvantages, the resulting indices remove much of the subjectivity associated with data
interpretation. Such indices also provide a simple means of communicating complex information to
managers, tracking trends over time, and correlating benthic responses with stressor data (Dauer et al. 2000,
Hale et al. 2004).
During the past decade, several scientifically valid measures of marine and estuarine benthic community
condition, often called benthic indices, have been developed for regulatory use. Benthic indices are
increasingly accepted by regulators and incorporated into regulatory processes. The U.S. EPA’s guidance for
biocriteria development (Gibson et al. 2000) recognizes all three types of benthic indices, and the agency
included benthic assessments in a recent report on nationwide coastal condition to Congress (U.S. EPA 2004).
In Maryland and Virginia, the Index of Biotic Integrity is one of the measures used to report on the condition
of Chesapeake Bay waters under sections 305(b) and 303(d) of CWA. In California, benthic indices were one
of the factors used by the State Water Board to designate toxic hotspots (California State Water Resources
Control Board 1999) and by the San Diego Regional Water Quality Control Board to make clean-up decisions
for three toxic hot-spots in San Diego Bay (Exponent 2002, SCCWRP and Space and Naval Warfare Systems
Center San Diego 2004). Due to the presence of benthic communities in good condition as measured by the
Benthic Response Index (BRI) and other reasons, Santa Monica Bay, which previously was listed as impaired
under section 303(d) of CWA due to sediment concentrations of six metals, was removed from the list in
2003. The BRI has also been used in southern California to assess the extent of bottom area supporting
unhealthy benthic communities since 1994 (Bergen et al. 1998, Bergen et al. 2000, Ranasinghe et al. 2003).
There are several impediments to applying benthic indices statewide in California’s bays and estuaries. First,
the number of unique habitats and benthic assemblages that exist and the corresponding number of benthic
indices to be developed are unknown; species and abundances of benthic organisms vary naturally from
habitat to habitat and comparisons to determine altered states should vary accordingly. Second, different
benthic indices have been used in California at different times and different places, and results cannot be
compared across regions because the various indices have not yet been rigorously compared and
intercalibrated. Third, initial development of each existing benthic index was constrained by data limitations,
and they would all benefit from refinement with additional data as well as independent validation. In
addition, there is a lack of knowledge of the effects of differences in: (1) sampling procedures traditional in
different regions, (2) habitat factors such as seasonality and sediment type, and (3) accuracy of identification
of benthic organisms on performance of California benthic indices. As a result, significant work is required
to develop benthic tools for all bays and estuarine habitats. Five index approaches that had been calibrated to
California data were evaluated for potential application in a SQO policy setting. These approaches were:
Benthic Response Index (BRI)
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The Benthic Response Index (BRI) was originally developed for the southern California mainland shelf by
Smith et al. (2001) and extended into California bays and estuaries by Smith et al. (2003) and Ranasinghe et
al. (2004). The BRI is the abundance-weighted average pollution tolerance score of organisms occurring in a
sample.
Relative Benthic Index (RBI)
The RBI was originally developed for estuarine applications in California’s Bay Protection and Cleanup
Program (Hunt et al. 2001). The RBI is the weighted sum of (a) several community parameters (total number
of species, number of crustacean species, number of crustacean individuals, and number of mollusc species)
and abundances; (b) three positive; and (c) two negative indicator organisms.
Index of Biotic Integrity (IBI)
The IBI was developed for freshwater streams and adapted for estuarine applications by Weisberg et al.
(1997), Van Dolah et al. (1999) and Thompson and Lowe (2004). The IBI identifies community measures
that have values outside a reference range.
River Invertebrate Prediction and Classification System (RIVPACS)
The RIVPACS was originally developed for British freshwater streams by Wright et al. (1993) and applied in
estuaries and bays for the first time in this project. The approach compares the assemblage at a site with an
expected species composition determined by a multivariate predictive model that is based on species
relationships to habitat gradients (Van Sickle et al. 2006).
Benthic Quality Index (BQI)
The BQI was originally developed for the west coast of Sweden by Rosenberg et al. (2004) and applied in the
United States for the first time in this project. The BQI is the product of the logarithm (base10) of the total
number of species and the abundance-weighted average tolerance of organisms occurring in a sample.
Species tolerance scores are calculated differently than for the BRI; instead, they are based on relationships of
the abundance distributions to Hurlbert’s (1971) expected number of species.
These indices were evaluated by comparison with the consensus of nine benthic experts, who classified the
condition of 36 samples from California into one of four condition categories: reference, low disturbance,
moderate disturbance, or high disturbance. Individually, none of the indices fared as well as the experts, but
all of them had at least a 75 percent correct status classification, in which the benthic condition was expressed
as good (reference or low disturbance) or bad (moderate or major disturbance). Index combinations generally
performed better than individual indices, and combinations of three or more indices generally performed the
best.
Baseline: No methods have been approved or adopted by the State or Regional Water Boards for the
habitats under consideration. However, several tools have been applied by the State and Regional
Water Boards for the purposes of hot spot identification, water body assessment and site assessments.
Alternative 1: Do not specify the methods.
Alternative 2: Select a single method for all applicable water bodies.
Alternative 3: Select multiple methods for applicable water bodies.
Suggested Policy Language: See Section 3.V.G.
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2.18 How Should the Data from Each Direct Effects LOE be Integrated?
The use of MLOE in the assessment of sediment is the most robust method available to resource and water
quality managers. However, as discussed in Section 2.11, this approach is rarely if ever applied within the
context of a water quality control program. Risk assessments and monitoring programs have used a wide
variety of methods to integrate MLOE for the purpose of determining the likelihood of adverse effects from
sediment contamination (Chapman et. al., 2002). These methods include reliance solely on BPJ, the use of
statistical methods such as ratios or multivariate analyses to rank and classify different combinations of LOEs,
and the use of logic systems where the cause and certainty of ecosystem impairment is inferred based on the
characteristics of each LOE.
BPJ relies on the use of expert opinion to evaluate the data on a site- and situation-specific basis. The
approach is flexible and can be adapted to a wide array of data types and quality. Within a large and densely
populated state, the utility of BPJ is limited for many reasons. Its use:
o
o
o
o
May result in inconsistent decisions within a single region and from region to region.
Can be time consuming and resource intensive.
May not always lead to transparent and unbiased decisions.
May not allow Regional Water Board staff, permittees, or interested parties to assess the outcome
independently.
Statistical integration methods such as ratios or other indices can result in the compression and loss of
relevant information about the nature of the response and relationship among the various LOE. Multivariate
methods can retain more information describing the relationship among different LOEs. The result of most
statistical approaches is a relative ranking of the sites, but there is little basis for distinguishing among levels
of impact. A comparison to a reference condition is often needed to determine the presence of an impact; the
selection of suitable reference sites is often contentious and may be difficult for some water bodies that have
been extensively altered by urbanization. Logic systems are frequently used to integrate MLOE data; the
sediment quality triad was one of the first examples of the use of a logic system to evaluate sediment quality
data. Tabular decision matrices that provide an interpretation of various MLOE scenarios are used to apply a
logic system. These logic systems are based on a transparent set of criteria used to infer the likelihood of
causality for contaminant-related impacts and the system can accommodate various types of scoring systems
within each LOE. The rules applied in a logic system can also be modified to reflect specific policy
objectives or scientific assumptions, such a giving greater weight to benthic community disturbance relative
to toxicity.
The State Water Board’s technical team developed a logic system for integrating MLOE to make a station
level determination of the likelihood of biological effects due to sediment contamination. This system was
developed in consultation with a stakeholder advisory committee and an independent scientific steering
committee. Three levels of integration of sediment chemistry, toxicity, and benthic community data are
involved in the system (Figure 1). First, the results for multiple indicators within each LOE are evaluated and
classified into one of four categories of response (no effect; low, moderate, or high effect). Each category
reflects a change in the level of certainty that an adverse response is present or in the severity of effect. In the
second level of integration, the LOE are combined to provide corroborating evidence of biological effect or
chemical exposure at a site. For evidence of biological effect, the benthos and toxicity LOE are integrated
into “Severity of Effect” categories (Table 1). Benthos is given greater weight for determining effects. To
determine evidence of chemical exposure, the sediment chemistry and toxicity LOE are combined into
“Potential that Effects are Chemically Mediated” categories (Table 2). The benthos LOE is not used to assess
linkage to chemistry because benthic disturbance can be caused by noncontaminant factors, such as grain size,
temperature, and recruitment.
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Benthos
Toxicity
Chemistry
Severity of
Effect
Toxicity
Potential for
Chemically
Mediated Effect
Station
Assessment
Figure 1. Schematic of multiple lines of evidence (MLOE) integration framework.
Table 2.2 Severity of effect classifications, derived from benthos and toxicity LOE.
Toxicity
Nontoxic
Low toxicity
Moderate
toxicity
High toxicity
Reference
Unaffected
Unaffected
Unaffected
Low effect
Low disturbance
Unaffected
Low effect
Low effect
Low effect
Moderate
disturbance
Moderate effect
Moderate
effect
Moderate effect
Moderate
effect
High
disturbance
Moderate effect
High Effect
High Effect
High Effect
Benthos
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Table 2.3 Potential that effects are chemically-mediated categories, derived from chemistry
and toxicity LOE.
Toxicity
Nontoxic
Low toxicity
Moderate
toxicity
High toxicity
Minimal
exposure
Minimal
potential
Minimal
potential
Low potential
Moderate
potential
Low exposure
Minimal
potential
Low potential
Moderate
potential
Moderate
potential
Low potential
Moderate
potential
Moderate
potential
Moderate
potential
Moderate
potential
Moderate
potential
High potential
High potential
Chemistry
Moderate
exposure
High exposure
The final data integration step combines the intermediate classifications for severity of effect and potential for
chemically-mediated effect to result in six categories of impact at the station level:
•
Unimpacted. Confident that any sediment contamination present at the site is not causing significant
adverse direct impacts to aquatic life. The sediment conditions support a benthic community
composition that is similar to that attained in reference areas representing the best available
conditions in the region. High agreement among the LOE is present.
•
Likely unimpacted. Sediment contamination present at the site is not expected to cause significant
adverse direct impacts to aquatic life. Some disagreement among the LOE is present, which indicates
uncertainty in the classification.
•
Possibly impacted. Sediment contamination present at the site may be causing significant adverse
direct impacts to aquatic life, but these impacts may be moderate or variable in nature. The LOE may
agree in indicating a minor level of effect, or there may be substantial disagreement among the LOE.
•
Likely impacted. Confidence that sediment contamination present at the site is causing significant
adverse direct impacts to aquatic life. There may be disagreement among the LOE, but the evidence
for a contaminant-related impact is persuasive.
•
Clearly impacted. Confidence that sediment contamination present at the site is causing severe
adverse direct impacts to aquatic life.
•
Inconclusive. Unable to classify the site. Extreme disagreement among the LOE indicate that either
the data are suspect or that additional information is needed before a classification can be made.
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The decision matrix for determining the station assessment category is shown in Table 3. Two key principles
provide the foundation for this matrix. First, there must be some evidence of biological effect (severity of
effect = low, moderate, or high) in order to classify a station as impacted. Second, there must be some
evidence of elevated chemical exposure (e.g., low, moderate, or high potential for effects) in order to classify
a station as impacted.
Table 2.4 Multiple lines of evidence station classifications.
Severity of Effect
Potential that
effects are
chemicallymediated
Unaffected
Low effect
Moderate effect
High effect
Minimal
potential
Unimpacted
Likely
unimpacted
Likely
unimpacted
Inconclusive
Low potential
Unimpacted
Likely
unimpacted
Possibly
impacted
Possibly
impacted
Moderate
potential
Likely
unimpacted
Possibly
impacted or
Inconclusive*
Likely impacted
Likely
impacted
High potential
Inconclusive
Likely
impacted
Clearly impacted
Clearly
impacted
* Inconclusive category when chemistry = minimal exposure, benthos = reference, and toxicity= high.
The State Water Board’s logic system was evaluated by comparison to the results obtained from six
independent experts using various types of MLOE integration systems. The logic system had a similar
accuracy in classifying the stations (compared to the median of the experts) as most of the individual experts.
The logic system also showed a low degree of bias, indicating that errors in classification were balanced with
respect to predicting a greater or lesser degree of impact.
Baseline: MLOE is integrated based upon BPJ on a case-by-case basis.
Alternative 1: Support an approach based upon BPJ.
Alternative 2: Select an integration method that is based upon a transparent logic-based framework
that has been evaluated for accuracy relative to experts and is supported by independent scientific
peer review.
Suggested Policy Language: See Section 3.V.I.
2.19 What are Some of the Interim Tools that Could be Applied to the Delta and
Other Estuaries?
The State Water Board initiated development of SQOs in 2003 in order to comply with Section 13393 of
Division 7 of CWC and a Court ordered compliance schedule (See Section 1.2). The schedule the State
Water Board is currently proposing would require circulation of draft objectives and an implementation
policy by August 2006 and approval by the State Water Board and submission to the Office of
Administrative Law by February 2008.
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Section 13393 of CWC requires the State Water Board to develop SQOs for bays and estuaries of California.
As described in Section 2.2, the State Water Board Phase I effort focused on those water bodies where
chemical and biological data were available to develop indicators and tools to assess sediment quality. Only
within southern California bays and most of San Francisco Bay was enough data available to evaluate
exposure and effects relationships. Most estuaries including the Sacramento-San Joaquin Delta have not been
monitored routinely to assess the impact of toxic pollutants to sediment dwelling organisms; therefore, very
little combined effects and exposure data exists within these water bodies. Where data is available, it often
consists of only one to three data points. Clearly, the robust data sets required to assess the relationship
between exposure and biological effects to benthic communities are far too sparse for the development of
assessment tools.
Generally, the type of data required would consist of sediment chemistry-sediment toxicity and benthic
community data that encompasses the range of pollutant impact expected within these water bodies. With
such a data set, effects measures such as toxicity and community degradation can be assessed relative to
pollutant loading and other disturbances. This is the general approach that has been applied to develop SQOs
within California’s embayments and is supported by the SQO Scientific Steering Committee. Although the
State Water Board recognizes the need to collect additional data and provide funding to achieve this goal, the
technical team will not have the data necessary to complete the appropriate analyses until late 2007. As a
result, there is a need to consider other interim options in order to comply with the court’s decision.
Single LOE Chemistry or Toxicity
The State Water Board could propose the use of Sediment Chemistry Guidelines such as the ERMs (See
Section 2.17) or apparent effects thresholds as a single LOE indicator of sediment quality in estuaries: SQGs
are existing chemical thresholds that have been applied to assist managers when making decisions about
sediment quality. Some of these approaches were developed in part from estuarine data. This approach
would require little or no resources to prepare as existing sediment thresholds could be proposed and could be
applied to determine whether sediment meet the narrative objective. As stated previously, there are
significant problems when this LOE is used without the benefit of the other LOE.
Sediment toxicity could be proposed as a stand-alone tool for the assessment of sediment quality. There are
two species within the proposed embayments suite of toxicity test methods that perform within the desired
salinity range of estuarine waters. As described above, this approach could be applied to determine whether
sediment meet the narrative objective described in Section 2.11, or a toxicity specific narrative objective
could be proposed. Sediment toxicity has been applied within many different water bodies; however, similar
limitations persist with this tool as well. Confounding factors and uncertainty also limit the ability to use this
single LOE to assess sediment quality.
Combination of Sediment and Toxicity
Sediment chemistry and toxicity could be integrated into a two-line of evidence approach. This approach
requires two lines of evidence and would provide greater confidence. However, the selection of appropriate
thresholds would be difficult. Thresholds could be adopted from those proposed for sediment chemistry and
toxicity in embayments. However, there may be little or no correlation between organism response in
embayments and that in estuaries. The toxicity and chemistry lines of evidence could be interpreted relative
to site-specific reference sites, providing only possible outcomes for each LOE: good or bad.
However, determination of reference sites is often contentious and typically requires a large amount of data to
support the hypothesis. This approach gives more flexibility and responsibility to local agencies, and may be
inconsistently applied.
Clearly, the State Water Board will need to establish some thresholds to reduce the use of BPJ, which does
not promote statewide consistency and promotes adversarial science. While it may not be possible to develop
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discriminatory tools such as those being developed for embayments, the State Water Board could provide
thresholds that would enable a manager to respond quickly to relatively high level of effects.
This approach would be developed based on the following considerations.
o Develop an integration approach that accounts for greater uncertainty associated with application in
estuaries.
o Utilize fewer categories of effect or exposure to reflect present lack of knowledge.
o May require a greater number of inconclusive categories for situations where LOE are not in
agreement, additional data collection (e.g., benthos) or analysis is needed before an assessment can be
made. Current embayment chemical indicators and thresholds have not been validated for use in
estuaries, and as a result may not be accurate or effective.
o Additional toxicity test methods that are compatible with freshwater (e.g., Hyallella and Chironomus)
may be needed, depending on salinities at time of collection.
Alternative 1: Do not propose any tools for implementing the narrative SQOs until data is collected
in Phase II, and the technical team has the time to develop appropriate tools.
Alternative 2: Propose the use of a single LOE for delta waters.
Alternative 3: Propose using sediment toxicity and chemistry to implement the narrative objective.
Additional development and evaluation will be required before a detailed approach is proposed. The
Scientific Steering Committee was critical of this approach.
Suggested Policy Language: See Section 3.V.J.
2.20 Should Interim Tools Sunset in SQO Plan?
Some stakeholders have expressed concern that the State Water Board could adopt interim tools for the Delta
and other estuaries without providing any guarantee that these tools will not be replaced by more fully
developed implementation measures scheduled for development under Phase II. Although the State Water
Board provided additional funding to develop Phase II tools, there is always some uncertainty associated with
future planning efforts.
Alternative 1: Do not provide sunsetting language in the draft SQO plan for the water bodies with
less robust tools.
Alternative 2: Provide language that sunsets interim implementation tools if the State Water Board
has not developed more robust tools by a specific date.
Alternative 3: Provide language in the resolution adopting Phase I that the State Board will revisit
the interim implementation tools in Phase II
2.21 How Could the SQOs be Applied?
The narrative SQOs and implementation tools have been developed for the purposes of assessing whether
pollutants in sediments pose risk or are causing or contributing to the degradation of ecologically important
and sensitive sediment dwelling organisms directly exposed to the pollutants in sediment. As a result, the
SQO and tools will provide a robust measure of ambient sediment quality that directly relates to beneficial
use protection.
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2.22 How Should an Exceedance of the SQOs be Defined?
Exceedance of the SQO could be determined station-by-station or by considering multiple stations or through
a combination that gives greater weight to the magnitude of the impact. Individual station exceedance could
be based upon any station that is classified as possibly impacted, likely impacted, or clearly impacted.
Alternative 1: Single station using the MLOE integration approach.
Alternative 2: Magnitude and extent would be used to make a determination.
2.23 How Should the SQOs be Used to Determine if a Water Body is Impaired?
A multi-station assessment tool will integrate the results of many single station assessments into a single
watershed-based or water body assessment. This tool will help determine whether the water body is
consistent with the narrative SQOs. The proposed MLOE approach uses evidence from chemistry, toxicity,
and the benthic community structure to make a single station assessment. At each station, sediment quality
will be categorized into one of five ordered categories: “unimpacted” < “likely unimpacted” < “possibly
impacted” < “likely impacted” < “clearly impacted.” This type of ordinal data is interpretable in terms of its
arrangement in a given order, e.g., from lowest to highest.
Results measured on an ordinal scale, however, may limit the types of appropriate statistical methods that can
be applied during a multi-station assessment. Nonparametric methods are usually used with ordinal data,
while parametric methods are usually used with interval or ratio data (Stevens 1946). Some researchers,
however, have concluded that treating ordinal data as if they were interval data is unlikely to lead to improper
conclusions (Gardner 1975). The following is a list of preliminary ideas for statistical tests that could be used
to assess multiple station sediment data:
1. Tests of Exceedance. Convert each single station assessment into binary yes-or-no type data value. A
water body would then be characterized by a count of the number of exceedances and the number of nonexceedances. A binomial test can then be used to determine if the proportion of exceedances is significantly
excessive. This is the approach taken in the State’s current 303(d) listing policy (SWRCB 2004). This
approach does not consider the magnitude of the exceedance.
2. Goodness of Fit Tests. The observed frequencies in each assessment category are compared to frequencies
expected in each category under a specified null distribution. Sufficiently large deviations from the expected
frequencies will support the conclusion that the data did not come from the hypothesized distribution. Chisquared and Kolmogorov-Smirnov one-sample goodness-of-fit tests are examples. This option does not fully
utilize the ordinal scale of the data.
3. Tests of Location. These tests work by subjectively assigning numeric integer values to ordinal data. For
example, a value of 1 is assigned to stations classified as “unimpacted,” a value of 2 is assigned to stations
classified as “likely unimpacted,” and so on. A one-sample parametric t-test can be used to test for a
significant difference between the observed mean and the hypothesized mean. Similarly, a one-sample nonparametric Wilcoxon signed rank test can be used to test for a significant difference between the observed
median and the hypothesized median. These tests of location account for magnitude.
Alternative 1: Do not consider the SQOs for listing purposes.
Alternative 2: Utilize the existing approach described in 303(d) listing policy (SWRCB 2004).
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Alternative 3: Evaluate a variety of approaches described above for applying SQOs to the listing
process.
2.24 Could the SQOs be Applied within National Pollutant Discharge
Elimination System (NPDES) Permits?
Water quality objectives are frequently translated into effluent limits when there is reasonable potential that
discharge of specific pollutants can cause or contribute to water quality standards exceedances. During the
late 1980’s, the State Water Board assessed the relationship between sediment deposition, pollutant loading,
and effluent quality (Hendricks 1990) in an attempt to develop a process for deriving sediment based effluent
limits. The Washington Department of Ecology developed similar tools to calculate effluent limits based
upon chemical concentrations in sediments within Puget Sound (Bailey 2005). Application of these tools to
derive effluent limits has been limited for several reasons.
o
o
o
o
Chemical concentrations in sediment do not represent the bioavailable fraction.
Chemical thresholds are not based upon causal association.
Pollutants discharged undergo chemical processes that vary depending upon the chemistry and
physical properties of the effluent and receiving water.
Sediment fate and transport must be well characterized.
Water quality objectives can also be applied within NPDES permits as receiving water limits. Receiving
water limits are typically used when the water quality objective cannot be directly translated to effluent limits
or when there is a clear need to monitor compliance within the receiving water. Examples include biological
narratives and bacteria receiving water limits described in the California Ocean Plan (SWRCB, 2005). As
receiving water limits, the narrative SQOs and implementation tools can be applied to NPDES permits within
bays and estuaries if discharge of a toxic pollutant has the reasonable potential to cause or contribute to a
violation of an applicable SQO within bays and estuaries.
Alternative 1: Do not address implementation of SQOs in NPDES permits.
Alternative 2: Develop translator tools that would enable the calculation of effluent limits from
chemistry-based sediment thresholds.
Alternative 3: Propose that the narrative SQOs be applied in NPDES permits as receiving water
limits.
Suggested Policy Language: See Section 3.VII.A.
2.25 Should the Plan Include Follow-up Actions for Permitees When an
Exceedance Occurs?
The direct effect tools were specifically developed to identify toxic pollutant related impacts. However, the
information obtained from this MLOE does not lead to the identity of a specific stressor. Additional studies
would be required to identify the specific cause and initiate appropriate and effective actions. This effort
requires stressor identification studies similar to the Toxicity Identification Evaluation process developed and
utilized by U.S. EPA for the Whole Effluent Toxicity (WET) program (U.S. EPA 1999) and the process
described in U.S. EPA’s aquatic stressor identification guidance document (U.S.EPA 2002).
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Alternative 1: Do not propose any additional guidance in the plan.
Alternative 2: Develop an approach similar to U.S. EPA’s WET program guidance consisting of an
evaluation of the extent of the impact and identification of the stressors that are causing or
contributing to the degradation of sediment quality.
Suggested Policy Language: See Section 3.VII.C.
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3.0 PRELIMINARY DRAFT PLAN
This document prepared by State Water Board staff provides a preliminary draft Sediment Quality Plan for
Enclosed Bays and Estuaries. This preliminary draft Plan proposes a process for assessing sediment quality
within a regulatory framework. Because the CEQA scoping document is the first step in the State Water
Board’s formal planning process, it must be emphasized that this proposal is preliminary in nature. Staff
believes that the SQOs and technical tools described in the following pages represent those tools that will
likely be supported when the draft Plan and SED is circulated, following the scoping process. Furthermore,
certain sections will continue to undergo analysis and amendment based upon input from members of the
Advisory Committees, Agency Coordination Committee, and interested parties. Finally, some tools and
numeric thresholds will also continue to be evaluated by the Technical Team and reviewed by the Scientific
Steering Committee.
This document does not reflect the State Water Board’s support or approval of the approaches described on
the following pages. A meeting to adopt the draft Plan will be scheduled at a later date.
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Preliminary Draft Plan
I. INTENT AND SUMMARY
A.
Intent of the Sediment Quality Plan for Enclosed Bays and Estuaries (Plan)
It is the goal of the State Water Board to comply with the legislative directive in Water Code §13393
to adopt SQOs that protect both the sediment quality dependent resources living in California’s
bays and estuaries and human health. In order to meet this goal, this Plan integrates chemical and
biological measures to determine if the sediment dependent biota are protected or degraded as a
result of exposure to toxic pollutants in sediment and to protect human health
B.
Summary of Plan
This Plan includes:
1. Narrative SQOs for the protection of aquatic life and human health;
2. Identification of the beneficial uses that these objectives are intended to protect;
3. A program of implementation that contains:
a. Specific indicators, tools and implementation provisions to determine if the sediment
quality at a station or multiple stations meets the narrative objectives;
b. Monitoring, stressor identification and corrective action guidance.
C.
Review of Plan
This Plan shall be reviewed every three years to ensure that the standards and tools are adequate
and appropriate to protect beneficial uses.
II. USE AND APPLICABILITY OF SQOS
A.
Ambient Sediment Quality
The SQOs and supporting tools shall be utilized to assess ambient sediment quality.
B.
Applicable Waters
This Plan applies to enclosed bays2 and estuaries3 only. This Plan does not apply to ocean waters
including Monterey Bay, Santa Monica Bay, or inland surface waters.
2
ENCLOSED BAYS are indentations along the coast which enclose an area of oceanic water within distinct
headlands or harbor works. Enclosed bays include all bays where the narrowest distance between headlands
or outermost harbor works is less than 75 percent of the greatest dimension of the enclosed portion of the
bay. This definition includes, but is not limited to: Humboldt Bay, Bodega Harbor, Tomales Bay, Drakes
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C.
Applicable Sediments
This Plan applies to surficial sediments that have been deposited or emplaced below the intertidal
zone. This Plan does not apply to:
1. Sediments characterized by less than 10 percent of fines or substrates composed of
gravels, cobbles, or consolidated rock.
2. Sediment as the physical pollutant that causes adverse biological response or community
degradation related to burial, deposition, or sedimentation
D.
Applicability to Dredged Materials Testing Program
1. This Plan shall not apply to:
a. Dredge material suitability determinations. Suitability determinations shall be based
upon USACE and U.S. EPA methodologies developed for ocean, inland and upland
disposal, and guidance developed by regional dredging teams and approved by the
Regional Water Boards.
b. The management of active, designated, or permitted aquatic dredged material
disposal or placement sites. This provision does not prevent the State or Regional
Water Boards from taking future action on placement sites if the site itself is harming
beneficial uses.
2. The Regional Water Boards shall not approve a dredging project that involves the dredging
of sediment that exceeds the objectives in this plan, unless the Regional Water Boards
determine that:
a. The polluted sediment is removed in a manner that prevents or minimizes water
quality degradation.
b. The polluted sediment is not deposited in a location that may cause significant
adverse effects to aquatic life, fish, shellfish, or wildlife or may harm the beneficial
uses of the receiving waters, or does not create maximum benefit to the people of
the State.
c. The activity will not cause significant adverse impacts upon a federal sanctuary,
recreational area, or other waters of significant national importance.
Estero, San Francisco Bay, Morro Bay, Los Angeles Harbor, Upper and Lower Newport Bay, Mission Bay,
and San Diego Bay.
3
ESTUARIES AND COASTAL LAGOONS are waters at the mouths of streams that serve as mixing zones for
fresh and ocean waters during a major portion of the year. Mouths of streams that are temporarily separated
from the ocean by sandbars shall be considered as estuaries. Estuarine waters will generally be considered
to extend from a bay or the open ocean to the upstream limit of tidal action but may be considered to extend
seaward if significant mixing of fresh and salt water occurs in the open coastal waters. The waters described
by this definition include, but are not limited to, the Sacramento-San Joaquin Delta as defined by
Section 12220 of CWC, Suisun Bay, Carquinez Strait downstream to Carquinez Bridge, and appropriate
areas of the Smith, Klamath, Mad, Eel, Noyo, and Russian Rivers.
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E.
Discharges
This Plan applies only to direct discharges into bays and estuaries.
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III. BENEFICIAL USES
A. Beneficial uses protected by this policy and corresponding target receptor are identified in
Table 1.
Table 3.1 Beneficial Uses and Target Receptors
BENEFICIAL USES
Estuarine Habitat
Marine Habitat
TARGET RECEPTORS1
Benthic Community
Benthic Community
Commercial and Sport Fishing
Human Health
Aquaculture
Human Health
Shellfish Harvesting
Human Health
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IV. SEDIMENT QUALITY OBJECTIVES
A.
Aquatic Life
Pollutants in sediments shall not be present in quantities that, alone or in combination, are toxic to
benthic communities in bays and estuaries of California. This narrative objective shall be
implemented using MLOE as described in Section V of the policy.
B.
Human Health
Pollutants shall not be present in sediments at levels that will bioaccumulate in aquatic life to levels
that are harmful to human health. This narrative objective shall be implemented as described in
Section VI of the policy.
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V. BENTHIC COMMUNITY PROTECTION
A.
General Intent
The methods and procedures described below must be used to implement the Narrative Objective
described in Section IV.A. The tools described below are intended to assess the condition of
benthic communities and the potential for exposure to toxic pollutants in sediments. Exposure to
toxic pollutants at harmful levels will result in some combination of a degraded benthic community,
presence of toxicity, and or elevated chemical concentrations.
B.
Limitations
None of the individual LOE has sufficient reliability for use by itself to assess sediment quality
impacts due to toxic pollutants. The tools described below are based upon relationships
established from regional or statewide data. Within a given site, the exposure LOE may
underestimate or overestimate the risk to benthic communities or toxicity and does not demonstrate
causality. When the exposure and effects tools are integrated, the approach can quantify protection
through effects measures and also provide predictive capability through the exposure assessment.
C.
Water Bodies
1. The tools described in the following sections are applicable to Euhaline Bays and Coastal
Lagoons south of Point Conception and Polyhaline San Francisco Bay defined in general by
waters south and west of the San Rafael Bridge and north of the Dumbarton Bridge.
2. For all other bays and estuaries where benthic tools are unavailable only the chemistry and
toxicity LOE will be applied. Section J. describes how a station assessment will be determined.
D.
Field Procedures
1. All samples shall be collected using a grab sampler.
2. Benthic samples shall be screened through:
a. A 0.5-millimeter (mm) screen in San Francisco Bay;
b. A 1.0 mm screen in all other locations.
3. Bulk sediment chemical analysis will include at a minimum the pollutants identified in Appendix A.
(Inserted in this document at the end of Section 3)
E.
Laboratory Testing
All samples will be tested in accordance with U.S. EPA or ASTM methodologies where applicable.
Analytical tests shall be conducted by laboratories certified by the California Department of Health
Services in accordance with Water Code Section 13176.
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F. Assessment of Sediment Toxicity
1. Short Term Survival -A minimum of one short-term survival test shall be performed on sediment
collected from each station. Acceptable acute test organisms and methods are summarized in
Table 3.2.
Table 3.2 Acceptable Short Term Survival Sediment Toxicity Test Methods
TEST ORGANISM
EXPOSURE TYPE
DURATION
ENDPOINT
Eohaustorius estuarius
Whole Sediment
10 days
Survival
Leptocheirus plumulosus
Whole Sediment
10 days
Survival
Rhepoxynius abronius
Whole Sediment
10 days
Survival
2. Sublethal Tests -A minimum of one sublethal test shall be performed on sediment collected from
each station. Acceptable test organisms and methods are summarized in Table 3.3:
Table 3.3 Acceptable Sublethal Sediment Toxicity Test Methods
TEST ORGANISM
EXPOSURE TYPE
DURATION
ENDPOINT
Neanthes arenaceodentata
Whole Sediment
28 days
Growth/Survival
Mytilus galloprovincialis
Sediment-water
Interface
48 hour
Embryo
Development
3. Assessment of Sediment Toxicity -Sediment toxicity shall be categorized according to response
described in Table 3.4. The response categories are:
Nontoxic: Response not substantially different from that expected in sediments that are
uncontaminated and have optimum characteristics for the test species (e.g., control
sediments).
Low toxicity: A response that is of relatively low magnitude; the response may not be
greater than test variability.
Moderate toxicity: High confidence that a statistically significant toxic effect is present.
High toxicity: High confidence that a toxic effect is present and the magnitude of response
includes the strongest effects observed for the test.
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Table 3.4 Sediment Toxicity Categorical Responses
TEST
ORGANISM/METHODS
Eohaustorius Survival
Leptocheirus Survival
Rhepoxynius Survival
Neanthes Growth
Mytilus Normal
LOW
EFFECT
(PERCENT)
90%
90%
90%
90%
80%
MODERATE EFFECTS
(PERCENT RELATIVE
TO CONTROL)
82%
78%
81%
68%
77%
HIGH EFFECTS
(PERCENT RELATIVE
TO CONTROL)
63%
60%
63%
59%
38%
4. Integration of Sediment Toxicity Data:
The average value of all test responses shall be used to determine the final toxicity category.
G.
Assessment of Benthic Community Condition
1. General Requirements:
a. All benthic invertebrates shall be identified to the lowest possible taxon.
b. Taxonomic nomenclature shall follow the conventions described in XXXXXX (Master
Species Lists).
2. Benthic Tools:
The benthic data shall be assessed using four of the following methods:
a. BRI, which was originally developed for the southern California mainland shelf and
extended into California’s bays and estuaries. The BRI is the abundance-weighted average
pollution tolerance score of organisms occurring in a sample.
b. Index of Benthic Integrity (IBI), which was developed for freshwater streams and adapted
for California’s bays and estuaries. The IBI identifies community measures that have values
outside a reference range.
c. Relative Benthic Index (RBI), which was originally developed for estuarine applications in
California’s Bay Protection and Cleanup Program. The RBI is the weighted sum of: (a)
several community parameters (total number of species, number of crustacean species,
number of crustacean individuals, and number of mollusc species), and abundances of (b)
three positive, and (c) two negative indicator organisms.
d. River Invertebrate Prediction and Classification System (RIVPACS), which was originally
developed for British freshwater streams and adapted for California’s bays and estuaries.
The approach compares the assemblage at a site with an expected species composition
determined by a multivariate predictive model that is based on species relationships to
habitat gradients.
3. Calculation of Benthic Condition.
4. Benthic Community Assessment Benthic community data shall be categorized according to response. The response
categories are:
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Reference: A community composition equivalent to a “least affected” or “unaffected”
site.
Low disturbance: A community that shows some indication of stress, but could be
within measurement error of unaffected condition.
Moderate disturbance: Confident that the community shows evidence of physical,
chemical, natural, or anthropogenic stress.
High disturbance: The magnitude of stress is high.
5. Integration of benthic community data.
The median of all benthic index response categories shall be used to determine the benthic
community response category.
H.
Assessing Exposure to Toxic Pollutants in Sediment
1. All samples shall be tested for the analytes identified in Appendix A. This list represents the
minimum analytes required to assess exposure. In water bodies where other toxic
pollutants are believed to pose risk to benthic communities, those toxic pollutants should be
included in the analysis. Inclusion of additional analytes cannot be used in the exposure
assessment described below. However, the data can provide greater value in the overall
sediment quality assessment.
2. Assessment of Chemical Concentration in Sediment
Concentrations shall be categorized according to response. The response categories are:
Minimal exposure: Sediment-associated contamination may be present, but
exposure is unlikely to result in effects.
Low exposure: Small increase in contaminant exposure that may be associated with
increased effects, but magnitude or frequency of occurrence of biological impacts is
low.
Moderate exposure: Clear evidence of sediment contaminant exposure that is likely
to result in biological effects; an intermediate category.
High exposure: Contaminant exposure highly likely to result in possibly severe
biological effects; generally present in a small percentage of the samples.
3. To categorize the risk of exposure to toxic pollutants, two methods shall be employed:
a. The regionally derived north and south Chemical Category Score (nCCS, sCCS)
developed from chemistry and community response data, and
b. The California Pmax derived by logistic regression that relates the probability of
toxicity to the concentration of chemical mixtures.
4. The CCS approach is based on the association between chemicals and the magnitude of
benthic community disturbance. Two types of data are combined to calculate the mean
weighted CCS: a set of predicted benthic community effects categories based on the
individual chemical concentrations and a set of weighting factors for each of the chemicals.
The predicted benthic effect category for each chemical is determined by comparing the
chemical concentration to a series of three thresholds that define four effects categories.
Each constituent’s predicted effect level is then multiplied by its respective weighting factor
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to produce a benthic impact score. These scores are then summed across all constituents
in the sample and divided by the sum of weighting factors, producing the mean weighted
benthic category score (CCS).
Equation 1. Mean weighted CCS = Σ(w x cat)/Σw
Where cat = predicted chemical impact category, and w is the weighting factor for that
constituent.
Effect values and weighting factors are identified in Table 3.5.
Table 3.5. Effect values and weighting factors for the north and south variations of the CCS.
Chemical
Cadmium
Copper
Lead
Mercury
Zinc
PAHs, total high
MW
PAHs, total low
MW
Chlordane, alphaChlordane,
gammaDDDs, total
DDEs, total
DDTs, total
PCBs, total
units
Weight
Mg/kg
Mg/kg
Mg/kg
Mg/kg
Mg/kg
Ug/kg
40
68
37
100
67
North CCS
T1
T2
T3
Weight
38
100
88
30
98
0.14
32.5
21.7
0.20
94.8
770
0.22
44.7
25.5
0.26
123
943
0.75
62.9
70.6
0.41
164
2085
160
191
764
53
Ug/kg
Ug/kg
Ug/kg
Ug/kg
Ug/kg
Ug/kg
Ug/kg
41
42
72
30
43
36
39
South CCS
T1
T2
T3
0.09
52.8
26.4
0.09
112
312
0.22
96.5
60.8
0.45
200
1325
1.66
406
154
2.18
629
9320
85.4
312
2471
0.50
0.54
1.23
1.45
11.1
14.5
0.38
0.11
0.42
11.9
2.69
4.15
1.52
24.7
117
153
89.3
288
16
0.12
0.13
0.19
0.17
3.08
0.30
1.13
0.07
0.02
8.22
8.13
0.79
0.10
18.9
15.4
5.19
3.68
31.2
5
55
58
46
31
16
55
5. Categorization of CCS
The mean weighted CCS shall be categorized based on the following values:
Minimal exposure:
Low exposure:
Moderate Exposure:
High Exposure:
< 1.68
1.69 - 2.33
2.34 - 2.99
> 2.99
6. The California Pmax approach is based on logistic regression analysis of matching
chemistry and toxicity data. Chemistry and toxicity data from national and California databases
were used for this approach. A logistic regression model describes the relationship between the
concentration of each contaminant and the probability of observed toxicity.
The logistic model is described by the following equation:
Equation 2.
Where:
p= eB0+B1 (x) / (1 + e B0+B1 (x))
p= probability of observing a toxic effect;
B0= intercept parameter;
B1= slope parameter; and
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166
x= concentration the chemical.
The probability of toxicity is calculated for each chemical using chemical-specific regression
parameters (Table 3.6). The maximum probability (Pmax) obtained from the individual chemical
results is used to represent the chemical mixture present in a sample.
Table 3.6. Logistic regression parameters for the California Pmax approach.
Chemical
Cadmium
Copper
Lead
Mercury
Zinc
HMW PAH
LMW PAH
Chlordane, alpha
Dieldrin
Trans nonachlor
Total PCBs
p,p’ DDT
Units
mg/kg
mg/kg
mg/kg
mg/kg
mg/kg
ug/kg
ug/kg
ug/kg
ug/kg
ug/kg
ug/kg
ug/kg
B0
0.2894
-5.5931
-4.7228
-0.0618
-5.1337
-8.1922
-6.8071
-3.4080
-1.8344
-4.2590
-4.4144
-3.5531
B1
3.1764
2.5885
2.8404
2.6837
2.4205
1.9995
1.8827
4.4570
2.5890
5.3135
1.4837
3.2621
Categorization of California Pmax
The California Pmax shall be categorized based on the following values:
Minimal exposure:
Low exposure:
Moderate Exposure:
High Exposure:
< 0.32
0.33 – 0.49
0.50 – 0.66
> 0.67
Integration of sediment chemistry data:
The average value of both approaches shall be used to determine the final chemical
exposure category.
I.
Integration of MLOE
1. Severity of effects
Severity of effects (the toxicity and benthic effects categorization) shall be integrated using the
decision matrix presented in Table 3.7.
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Table 3.7 Severity of Effects Matrix
TOXICITY RESPONSE CATEGORY
BENTHIC
RESPONSE
CATEGORY
Reference
Low
Disturbance
Moderate
Disturbance
High
Disturbance
Nontoxic
Low Toxicity
Moderate
Toxicity
High
Toxicity
Unaffected
Unaffected
Unaffected
Low
Effect
Unaffected
Low Effect
Low Effect
Moderate
Effect
Moderate
Effect
Moderate
Effect
High
Effect
Moderate
Effect
High
Effect
Low
Effect
Moderate
Effect
High
Effect
2. Potential for Chemically-Mediated Effects
The potential for effects to be chemically-mediated shall be assessed using the decision matrix
presented in Table 3.8.
Table 3.8 Analysis of the Potential for Chemical Mediated Effects
TOXICITY RESPONSE CATEGORY
POLLUTANT
CATEGORY
Nontoxic
Low Toxicity
Moderate
Toxicity
High
Toxicity
Minimal
Exposure
Minimal
Potential
Minimal
Potential
Low
Potential
Moderate
Potential
Low
Exposure
Moderate
Exposure
High
Exposure
Minimal
Potential
Low
Potential
Moderate
Potential
Low
Potential
Moderate
Potential
Moderate
Potential
Moderate
Potential
Moderate
Potential
High
Potential
Moderate
Potential
Moderate
Potential
High
Potential
3. Station Level Assessment
The station level assessment shall be determined using the decision matrix presented in Table 3.9.
This assessment combines the intermediate classifications for severity of effect and potential for
chemically-mediated effect to result in six categories of impact at the station level:
Unimpacted. Confident that any sediment contamination present at the site is not causing
significant adverse direct impacts to aquatic life. The sediment conditions support a benthic
community composition that is similar to that attained in reference areas representing the best
available conditions in the region. High agreement among the LOE is present.
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Likely unimpacted. Sediment contamination present at the site is not expected to cause significant
adverse direct impacts to aquatic life. Some disagreement among the LOE is present, which
indicates uncertainty in the classification.
Possibly impacted. Sediment contamination present at the site may be causing significant adverse
direct impacts to aquatic life, but these impacts may be moderate or variable in nature. The LOE
may agree in indicating a minor level of effect, or there may be substantial disagreement among the
LOE.
Likely impacted. Confidence that sediment contamination present at the site is causing significant
adverse direct impacts to aquatic life. There may be disagreement among the LOE, but the
evidence for a contaminant-related impact is persuasive.
Clearly impacted. Confidence that sediment contamination present at the site is causing severe
adverse direct impacts to aquatic life.
Inconclusive. Unable to classify, as a result of extreme disagreement among the LOE indicating
that either the data are suspect or that additional information is needed before a classification can
be made. This designation is only applied when high toxicity is present without corroborating
evidence of chemical exposure and benthic disturbance.
Table 3.9 Station Assessment Matrix.
SEVERITY OF EFFECT
POTENTIAL
FOR
CHEMICALLYMEDIATED
EFFECTS
Minimal
Potential
Unaffected
Low Effect
Moderate
Effect
High
Effect
Unimpacted
Likely
Unimpacted
Likely
Unimpacted
Likely
Unimpacted
Likely
Possibly
Possibly
Unimpacted
Impacted
Impacted
Possibly
Likely
Likely
Moderate
Likely
Impacted or
Impacted
Impacted
Potential
Unimpacted
1
Inconclusive
High
Likely
Likely
Clearly
Clearly
Potential
Unimpacted
Impacted
Impacted
Impacted
1
Inconclusive category when chemistry is classified as minimal exposure, benthic response is classified as
reference, and toxicity response is classified as high.
J.
Low Potential
Unimpacted
Missing Benthic LOE
In waters where one line of evidence is missing, the responses from the two existing lines shall be
assessed relative to the parameters described in Section 3.F, and H. The final station assessment
will be based upon Table 3.10.
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Table 3.10 Multiple lines of evidence designations based on toxicity and chemistry LOE (i.e.,
benthos LOE is missing).
Chemistry
Toxicity
K.
Minimal
exposure
Low
exposure
Moderate
exposure
High
exposure
Nontoxic
Likely
unimpacted
Likely
unimpacted
Possibly
impacted
Likely
impacted
Low toxicity
Likely
unimpacted
Possibly
impacted
Likely
impacted
Likely
impacted
Moderate
toxicity
Possibly
impacted
Likely
impacted
Likely
impacted
Clearly
impacted
High toxicity
Likely
impacted
Likely
impacted
Likely
impacted
Clearly
impacted
Exceedances and Listings
1. Exceedance of Narrative Objective
2. Water Body Listing
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VI. HUMAN HEALTH
Protection of human health will be assessed based upon a human health risk assessment in
accordance with the California Environmental Protection Agency’s (Cal/EPA) OEHHA policies for
fish consumption and risk assessment, Cal/EPA’s DTSC Risk Assessment, and U.S. EPA Human
Health Risk Assessment policies.
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VII. PROGRAM OF IMPLEMENTATION
A.
Receiving Water Limits
The SQOs shall be implemented as receiving water limits in NPDES permits where the Regional
Water Board believes there is the reasonable potential that the discharge of toxic or priority
pollutants may cause or contribute to an exceedance of an applicable SQO or SQOs. The
Regional Water Board shall require periodic sediment monitoring at intervals not less than once per
permit cycle, prior to the issuance or re-issuance of a permit. However, the Regional Water Board
may choose to exempt low volume discharges, determined to have no significant adverse impact on
sediment quality, from this monitoring requirement.
B.
Sediment Monitoring
1. Objective
a. Bedded sediments in bays contain an accumulation of contaminants from a wide variety of
past and present sources discharged either directly into the bay or indirectly into waters
draining into the bay. Embayments also represent highly disturbed or altered habitats as a
result of dredging and physical disturbance caused by construction and maintenance of
harbor works, boat and ship traffic, and development of adjacent lands. Due to the
multitude of stressors and the complexity of the environment, a well-designed monitoring
program is necessary to ensure that the data collected adequately characterizes the
condition of sediment in these water bodies.
2. Permitted Discharges
a. Where the State Water Board or Regional Water Boards believe there is the reasonable
potential that toxic or priority pollutants discharged by a Permittee may accumulate in
sediments at levels that will cause, have the reasonable potential to cause, or contribute to
an exceedance of applicable SQOs, sediment quality monitoring shall be required.
However, the Regional Water Board may choose to exempt low volume discharges,
determined to have no significant adverse impact on sediment quality, from this monitoring
requirement.
b. Monitoring may be performed by individual Permitees to assess compliance with receiving
water limits, participate in a regional or water body monitoring coalition as described under
VII.A. 3, or both as determined by the Regional Water Board and Permittee.
3. Monitoring Coalitions
a. To achieve maximum efficiency and economy of resources, the State Water Board
encourages the regulated community in coordination with the Regional Water Boards to
establish water body-monitoring coalitions. Monitoring coalitions would enable the sharing
of technical resources, trained personal, and associated costs and create an integrated
sediment-monitoring program within each major water body.
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b. Focusing resources on regional issues and developing a broader understanding of
pollutants effects in these water bodies will enable the development of more rapid and
efficient response strategies and enable better management of sediment quality.
4. Methods
Sediments collected from each station shall be tested or assessed using the methods and
metrics described in Section 5.
5. Design
a. Sediment monitoring programs shall be designed to ensure that the aggregate stations are
spatially representative of the sediment within the water body.
b. Design of a sediment-monitoring program shall take into consideration existing data and
information of appropriate quality.
c. Stratified Random network will provide the most useful information when assessing
conditions throughout a water body.
d. Identification of appropriate strata shall consider characteristic of the water body including
sediment transport, hydrodynamics, depth, salinity, land uses, inputs (both natural and
anthropogenic) and other factors that could affect the physical, chemical, or biological
condition of the sediment.
e. Targeted designs shall be applied to those Permitees that are required to meet receiving
water limits as described in Section II.B.
5. Index Period
All stations shall be sampled between the months of June through September.
6. Monitoring Schedule and Frequency
a. Permittees shall, at a minimum, monitor sediment quality as described in this Plan at least
once prior to the issuance and re-issuance of a permit.
b. Regional sediment quality monitoring will occur at a minimum of once every three years. (?)
Who does this?
c. Sediments identified as exceeding the narrative objective will be evaluated more frequently.
C. Focused Studies
If sediments fail to meet the narrative SQOs in accordance with Section V and VI, a sequential
approach is necessary to manage the sediment appropriately. The sequential approach consists of
the following 3 tasks:
1. Confirmation and characterization of pollutants related impacts
2. Pollutant(s) Identification
3. Source Identification
1. Confirmation and characterization of pollutant related impacts
Exceedance of the direct effects SQO at a site indicates that pollutants in the sediment are the
cause but does not identify the specific contaminants responsible. The MLOE assessment
establishes linkage to sediment contaminants; however, the lack of confounding factors (e.g.,
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physical disturbance, non-pollutant constituents) should be confirmed. There are two generic
stressors that may cause the narrative to be exceeded:
Physical Alteration: Examples of physical stressors include reduced salinity, impacts from
dredging, very fine or course grain size, and prop wash from passing ships. These types of
stressors may produce a non-reference condition in the benthic community that is similar to
that caused by contaminants. If impacts to a site are purely due to physical disturbance, the
LOE characteristics will likely show a degraded benthic community with little or no toxicity
and low chemical concentrations.
Other non-toxic pollutant related stressors: These constituents, that include elevated total
organic carbon, nutrients and pathogens, may have sources similar to chemical pollutants.
Chemical and microbiological analysis will be necessary to determine if these constituents
are present. The LOE characteristics for this type of stressor would likely be a degraded
benthic community with possibly an indication of toxicity, and low chemical concentrations.
To further assess a site with this indication, there are several lines of investigation that should be
pursued.
a. Evaluate the spatial extent of the Area of Concern. This information can be used to
evaluate the potential risk associated with the sediment, distinguish areas of known physical
disturbance or pollution and evaluate the proximity to sources such as outfalls, storm drains,
and industrial and agricultural activities.
b. Body burden data should be examined from animals exposed to the site’s sediment to
indicate if contaminants are being accumulated and to what degree.
c. Chemical specific mechanistic benchmarks applied to interpret sediment chemistry
concentrations.
d. Chemistry and biology data from the site should be examined to determine if there is a
correlation between the two LOE.
e. Alternate biological effects data may be pursued, such as bioaccumulation experiments
and pore water toxicity or chemical analysis.
2. Pollutant Identification
Methods to help determine cause may be statistical, biological, chemical or a combination.
Pollutant identification studies should be based upon the following:
a. Statistical methods: Correlations between individual chemicals and biological endpoints
(toxicity and benthic community).
b. Gradient analysis. Comparisons are made between different samples taken at various
distances from a chemical hotspot to examine patterns in chemical concentrations and
biological responses. The concentrations of causative agents should decrease as biological
effects decrease.
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c. Toxicity Identification Evaluation: A toxicological method for determining the cause of
impairments is the use of toxicity identification evaluations (TIE). Sediment samples are
manipulated chemically or physically to remove classes of chemicals or render them
biologically unavailable. Following the manipulations, animal exposures are performed to
determine if toxicity has been removed.
d. Bioavailability: Chemical contaminants may be present in the sediment but not
biologically available to cause toxicity or degradation of the benthic community. There are
several measures of bioavailability that can be made. Chemical and toxicological
measurements can be made on pore water to determine the availability of sediment
contaminants. Metal compounds may be naturally bound up in the sediment and rendered
unavailable by the presence of sulfides. Measurement of acid volatile sulfides and
simultaneously extracted metals analysis can be conducted to determine if sufficient sulfides
are present to bind the observed metals. Similarly, organic compounds can be tightly bound
to sediments. Solid phase microextraction (SPME) can be used to identify what organics
are available to animals in the sediment. Other methods using animal digestive fluids or
weak chemical extractions also exist to predict bioavailability.
e. Verification: After specific chemicals are identified as likely causes of impairment,
analysis should be performed to verify the results. Body burden analysis can be measured
on animals exposed to the sediment. The concentrations in the animals may then be
compared to established toxicity thresholds. Sediments can be spiked with the suspected
chemicals to verify that they are indeed toxic at the concentrations observed in the field.
Alternately, animals can be transplanted to suspected sites for in situ toxicity and
bioaccumulation testing.
3. There will be situations where the results of stressor identification are inconclusive.
4. Sources Identification and Management Actions
a. If a single discharger is found to be responsible for discharging the stressor pollutant, the
Regional Water Board shall require the discharger to take all necessary and appropriate
steps to address exceedance of the SQO, including but not limited to reducing the pollutant
loading into the sediment.
b. When multiple sources are present in the water body, the Regional Water Board shall
require the sources to take all necessary and appropriate steps to address exceedance of the SQO.
If appropriate, the Regional Water Board may adopt a TMDL to ensure attainment of the sediment
standard. .
D. Existing Management Actions
If a Regional Water Board has developed a TMDL and adopted a basin plan amendment that
addresses specific pollutants in sediment and sources identified under Section VII B, 1-3, no further
action is required except for the collection of load and trend data to access load reduction and
restoration of the beneficial use.
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Appendix A. List of chemical analytes needed to characterize sediment contamination exposure
and effect.
Chemical Name
Total Organic Carbon
Percent Fines
Chemical
Group
General
General
Cadmium
Copper
Lead
Mercury
Zinc
Metal
Metal
Metal
Metal
Metal
Acenaphthene
Anthracene
Biphenyl
Naphthalene
2,6-dimethylnaphthalene
Fuorene
1-methylnaphthalene
2-methylnaphthalene
1-methylphenanthrene
Phenanthrene
Benzo(a)anthracene
Benzo(a)pyrene
Benzo(e)pyrene
Chrysene
Dibenz(a,h)anthracene
Fluoranthene
Perylene
Pyrene
PAH
PAH
PAH
PAH
PAH
PAH
PAH
PAH
PAH
PAH
PAH
PAH
PAH
PAH
PAH
PAH
PAH
PAH
Chemical Name
Alpha Chlordane
Gamma Chlordane
Trans Nonachlor
Dieldrin
o,p’-DDE
o,p’-DDD
o,p’-DDT
p,p’-DDD
p,p’-DDE
p,p’-DDT
Chemical
Group
Pesticide
Pesticide
Pesticide
Pesticide
Pesticide
Pesticide
Pesticide
Pesticide
Pesticide
Pesticide
2,4'-Dichlorobiphenyl
2,2',5-Trichlorobiphenyl
2,4,4'-Trichlorobiphenyl
2,2',3,5'-Tetrachlorobiphenyl
2,2',4,5,5'-Pentachlorobiphenyl
2,3,3',4,4'-Pentachlorobiphenyl
2,3',4,4',5-Pentachlorobiphenyl
2,2',3,3',4,4'-Hexachlorobiphenyl
2,2',3,4,4',5'-Hexachlorobiphenyl
2,2',4,4',5,5'-Hexachlorobiphenyl
2,2',3,3',4,4',5-Heptachlorobiphenyl
2,2',3,4,4',5,5'-Heptachlorobiphenyl
2,2',3,4',5,5',6-Heptachlorobiphenyl
2,2',3,3',4,4',5,6-Octachlorobiphenyl
2,2',3,3',4,4',5,5',6-Nonachlorobiphenyl
Decachlorobiphenyl
PCB congener
PCB congener
PCB congener
PCB congener
PCB congener
PCB congener
PCB congener
PCB congener
PCB congener
PCB congener
PCB congener
PCB congener
PCB congener
PCB congener
PCB congener
PCB congener
PCB congener
PCB congener
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4.0 GLOSSARY
ACUTE TOXICITY: Short-term lethal response of an organism to a pollutant.
ALTERNATE HYPOTHESIS: Statement or claim that a statistical test is set up to establish.
BEST MANAGEMENT PRACTICES (BMPs): Methods, measures, or practices designed and selected to
reduce or eliminate the discharge of pollutants to surface waters from point and nonpoint source discharges
including storm water. BMPs include structural and non-structural controls, and operation and maintenance
procedures, which can be applied before, during, and/or after pollution producing activities.
BENTHIC: Living on or in bottom of the ocean, bays, and estuaries, or in the streambed.
BETA: Statistical error of failing to reject a null hypothesis that is not true. This type of error is also called
Type II error.
BINOMDIST: ,An Excel® function that can be used to calculate the cumulative binomial distribution.
BINOMIAL DISTRIBUTION: Mathematical distribution that describes the probabilities associated with the
possible number of times particular outcomes will occur in series of observations (i.e., samples). Each
observation may have only one of two possible results (e.g., standard exceeded or standard not exceeded).
BIOACCUMULATION: A process in which an organism’s body burden of a contaminant exceeds that in its
surrounding environment as a result of chemical uptake through all routes of chemical exposure; dietary and
dermal absorption and transport across the respiratory surface.
BIOACCUMULATION FACTOR (BAF): The ratio of contaminant concentration in biota to contaminant
concentration in some other matrix. In this report, unless specified otherwise, the term “bioaccumulation
factor” refers to wet weight concentration in fish or invertebrate tissue divided by dry weight concentration in
sediment.
BIOAVAILABILITY: Fraction of pollutant an organism is exposed to that is available for uptake through
biological membranes (gut, gills).
BIOTA-SEDIMENT ACCUMULATION FACTOR (BSAF): This is the bioaccumulation factor for tissue
vs. sediment, normalized for lipid and organic carbon. BSAF = (tissue contaminant concentration in wet wt.
* sediment % organic carbon) / (sediment contaminant concentration in dry wt. * tissue % lipid).
BIOASSESSMENT: Assessment of biological community information along with measures of the
physical/habitat quality to determine, in the case of water quality, the integrity of a water body of interest.
BTAG: Biological Technical Assistance Group, a multi-agency group of State and federal ecological and
human health risk assessors supported by U.S. EPA responsible for providing technical assistance for Site
remediation and mitigation.
CHEMICALS OF CONCERN (COCS): Pollutants that occur in environmental media at levels that pose a
risk to ecological receptors or human health.
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Glossary
CONTAMINATION: An impairment of the quality of the waters of the State by waste to a degree that
creates a hazard to the public health through poisoning or through the spread of disease. “Contamination”
includes any equivalent effect resulting from the disposal of waste whether or not waters of the State are
affected (CWC section 13050(k)).
CHRONIC TOXICITY: Sublethal response of an organism to repeated, long-term exposure to a chemical
substance. Typical observed endpoints include growth expressed as length and weight.
CALIFORNIA TOXICS RULE (CTR): Numerical water quality criteria established by U.S. EPA for priority
toxic pollutants for California’s inland surface waters, enclosed bays, and estuaries.
DEMERSAL: Organisms that prefer to spend the majority of their time on or near the bottom of a water
body.
DIEL: Measurements pertain to measurements taken over a 24-hour period of time.
DREDGED MATERIAL: Any material excavated or dredged from the navigable waters of the United States,
including material otherwise referred to as “spoil.”
EFFECTS RANGE-MEDIAN (ERM)/EFFECTS RANGE-LOW (ERL): Sediment quality guidelines based
on a biological effects empirical approach. These values represent chemical concentration ranges that are
rarely (i.e., below the ERL), sometimes (i.e., between ERL and ERM), and usually (i.e., above the ERM)
associated with toxicity for marine and estuarine sediments. Ranges are defined by the tenth percentile and
fiftieth percentile of the distribution of contaminant concentrations associated with adverse biological effects.
EFFECT SIZE: Maximum magnitude of exceedance frequency that is tolerated.
ENCLOSED BAYS: Indentations along the coast that enclose an area of oceanic water within distinct
headlands or harbor works. Enclosed bays include all bays where the narrowest distance between headlands
or outermost harbor works is less than 75 percent of the greatest dimension of the enclosed portion of the bay.
This definition includes, but is not limited to: Humboldt Bay, Bodega Harbor, Tomales Bay, Drakes Estero,
San Francisco Bay, Morro Bay, Los Angeles Harbor, Upper and Lower Newport Bay, Mission Bay, and
San Diego Bay.
ENDPOINT: A measured response of a receptor to a stressor. An endpoint can be measured in a toxicity test
or in a field survey.
EPIFAUNA: Organisms that live on the substrate.
EQUILIBRIUM PARTITIONING APPROACH: Approach used to relate the dry-weight sediment
concentration of a particular chemical that causes an adverse biological effect to the equivalent free chemical
concentration in pore water and to that concentration sorbed to sediment organic carbon or bound to sulfide.
Based on the theory that the partitioning of a nonionic organic chemical between organic carbon and pore
water and the partitioning of a divalent metal between the solid and solution phases are at equilibrium.
EQUILIBRIUM PARTITIONING SEDIMENT GUIDELINES: Sediment quality guidelines derived using
the EqP approach. When used in conjunction with appropriately protective water only exposure concentration,
a resulting guideline represents the sediment contaminant concentration that protects benthic organisms from
the effects of that contaminant.
ESTUARIES AND COASTAL LAGOONS: Waters at the mouths of streams that serve as mixing zones for
fresh and ocean waters during a major portion of the year. Mouths of streams that are temporarily separated
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Glossary
from the ocean by sandbars shall be considered as estuaries. Estuarine waters will generally be considered to
extend from a bay or the open ocean to the upstream limit of tidal action but may be considered to extend
seaward if significant mixing of fresh and salt water occurs in the open coastal waters. The waters described
by this definition include, but are not limited to, the Sacramento-San Joaquin Delta as defined by Section
12220 of the California Water Code, Suisun Bay, Carquinez Strait downstream to Carquinez Bridge, and
appropriate areas of the Smith, Klamath, Mad, Eel, Noyo, and Russian Rivers.
EUHALINE: Waters ranging in salinity from 25–32 practical salinity units (psu).
INDIRECT EFFECTS: Adverse effects to humans and wildlife as a result of consuming prey items exposed
to polluted sediments.
INFAUNA: Organisms that live within sediment or substrate.
INLAND SURFACE WATERS: All surface waters of the State that do not include the ocean, enclosed bays,
or estuaries.
LOAD ALLOCATION (LA): The portion of a receiving water's total maximum daily load that is allocated to
one of its nonpoint sources of pollution or to natural background sources.
MIXING ZONE: Limited zone within a receiving water that is allocated for mixing with a wastewater
discharge where water quality criteria can be exceeded without causing adverse effects to the overall water
body.
MAXIMUM CONTAMINANT LEVEL (MCL): The maximum permissible level of a contaminant in water
delivered to any user of a public water system.
MAXIMUM TISSUE RESIDUE LEVEL (MTRL): Tissue values developed from human health water
quality objectives in the 1997 California Ocean Plan and from the California Toxic Rule as established in the
Policy for Implementation of Toxics Standards for Inland Surface Waters, Enclosed Bays, and Estuaries of
California. MTRLs are used as alert levels or guidelines indicating water bodies with potential human health
concerns and are an assessment tool and not compliance or enforcement criteria. The MTRLs are calculated
by multiplying human health water quality objectives by the bioconcentration factor for each substance.
MESOHALINE: Waters ranging in salinity from 5 to 18 psu.
NATIONAL ACADEMY OF SCIENCE TISSUE GUIDELINES: Guidelines established for the protection
of predators. Values are suggested for residues in whole fish (wet weight) for DDT (including DDD and
DDE), aldrin, dieldrin, endrin, heptachlor (including heptachlor epoxide), chlordane, lindane, benzene
hexachloride, toxaphene, and endosulfan either singularly or in combination.
NATIONAL TOXICS RULE: Numerical water quality criteria established by U.S. EPA for priority toxic
pollutants for 12 states and two Territories who failed to comply with the section 303(c)(2)(B) of the Clean
Water Act.
NEW DISCHARGER?: Any building, structure, facility, or installation from which there is, or may be, a
discharge of pollutants, the construction of which commenced after the effective date of this Policy.
NONPOINT SOURCE POLLUTION: Sources are diffused and do not have a single point of origin or are not
introduced into a receiving stream from a specific outlet. The commonly used categories for nonpoint sources
are agriculture, forestry, mining, construction, land disposal, and salt intrusion.
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Glossary
NULL HYPOTHESIS: Statement used in statistical testing that has been put forward either because it is
believed to be true or because it is to be used as a basis for argument, but has not been proved.
OBJECTIONABLE BOTTOM DEPOSITS: An accumulation of materials or substances on or near the
bottom of a water body which creates conditions that adversely impact aquatic life, human health, beneficial
uses, or aesthetics. These conditions include, but are not limited to, the accumulation of pollutants in the
sediments and other conditions that result in harm to benthic organisms, production of food chain organisms,
or fish egg development. The presence of such deposits shall be determined by Regional Water Board(s) on a
case-by-case basis.
OCEAN WATERS: Territorial marine waters of the State as defined by California law to the extent these
waters are outside of enclosed bays, estuaries, and coastal lagoons. Discharges to ocean waters are regulated
in accordance with the State Water Board’s California Ocean Plan.
PELAGIC: Organisms living in the water column.
PERSISTENT POLLUTANTS: Substances for which degradation or decomposition in the environment is
nonexistent or very slow.
POLLUTANT: Defined in section 502(6) of the CWA as “dredged spoil, solid waste, incinerator residue,
filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal,
and agricultural waste discharged into water.”
POLLUTANT MINIMIZATION: Waste minimization and pollution prevention actions that include, but are
not limited to, product substitution, waste stream recycling, alternative waste management methods, and
education of the public and businesses.
POLLUTION: Defined in section 502(19) of the CWA as the “the man-made or man-induced alteration of
the chemical, physical, biological, and radiological integrity of water.” Pollution is also defined in CWC
section 13050(1) as an alternation of the quality of the waters of the State by waste to a degree that
unreasonably affects either the waters for beneficial uses or the facilities that serve these beneficial uses.
POLLUTION PREVENTION: Any action that causes a net reduction in the use or generation of a hazardous
substance or other pollutant that is discharged into water and includes, but is not limited to, input change,
operational improvement, production process change, and product reformulation (as defined in Water Code
Section 13263.3). Pollution prevention does not include actions that merely shift a pollutant in wastewater
from one environmental medium to another environmental medium, unless clear environmental benefits of
such an approach are identified to the satisfaction of the State Water Board or the Regional Water Boards.
POLYHALINE: Waters ranging in salinity from 18–25 psu.
PROBABLE EFFECT CONCENTRATION (PEC): Empirically derived freshwater sediment quality
guidelines (SQG) that rely on the correlation between the chemical concentration in field collected sediments
and observed biological effects. PECs are based on geometric means of various SQG approaches (with
matching chemical and toxicity field data) to predict toxicity for freshwater sediment on a regional and
national basis.
PROBABLE EFFECTS LEVEL (PELS)/THRESHOLD EFFECTS LEVELS (TEL): Empirically derived
sediment quality guidelines based on a biological effects empirical approach similar to ERMs/ERLs. A
generalized approach used to develop effects-based guidelines for the state of Florida and others. The lower
of the two guidelines for each chemical (i.e., the TEL) is assumed to represent the concentration below which
toxic effects rarely occur. In the range of concentrations between the two guidelines, effects occasionally
60
180
Glossary
occur. Toxic effects usually or frequently occurs at concentrations above the upper guideline value (i.e., the
PEL). Ranges are defined by specific percentiles of both the distribution of contaminant concentrations
associated with adverse biological effects and the “no effects” distribution.
RANK CORRELATION: The association between paired values of two variables that have been replaced by
their ranks within their respective samples (e.g., chemical measurements and response in a toxicity test).
REFERENCE CONDITION: The characteristics of water body segments least impaired by human activities.
As such, reference conditions can be used to describe attainable biological or habitat conditions for water
body segments with common watershed/catchment characteristics within defined geographical regions.
SIMULTANEOUSLY EXTRACTED METALS (SEM): Metal concentrations that are extracted during the
same analysis in which the acid-volatile sulfide (AVS) content of the sediment is determined.
STATISTICAL SIGNIFICANCE: When it can be demonstrated that the probability of obtaining a difference
by chance only is relatively low.
TOXICITY IDENTIFICATION EVALUATION (TIE): Techniques used to identify the unexplained
cause(s) of toxic events. TIE involves selectively removing classes of chemicals through a series of sample
manipulations, effectively reducing complex mixtures of chemicals in natural waters to simple components
for analysis. Following each manipulation the toxicity of the sample is assessed to see whether the toxicant
class removed was responsible for the toxicity.
TOXICITY REDUCTION EVALUATION (TRE): Study conducted in a step-wise process designed to
identify the causative agents of effluent or ambient toxicity, isolate the sources of toxicity, evaluate the
effectiveness of toxicity control options, and then confirm the reduction in toxicity. The first steps of the TRE
consist of the collection of data relevant to the toxicity, including additional toxicity testing, and an evaluation
of facility operations and maintenance practices, and best management practices. A Toxicity Identification
Evaluation (TIE) may be required as part of the TRE, if appropriate. (A TIE is a set of procedures to identify
the specific chemical(s) responsible for toxicity. These procedures are performed in three phases
[characterization, identification, and confirmation] using aquatic organism toxicity tests.)
WASTE: As used in this document, waste includes a discharger’s total discharge, of whatever origin, i.e.,
gross, not net, discharge.
WATER QUALITY-LIMITED SEGMENT: Any segment of a water body where it is known that water
quality does not meet applicable water quality standards, and/or is not expected to meet applicable water
quality standards, even after application of technology-based effluent limitations required by CWA
sections 301(d) or 306.
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Tri-TAC
Jointly Sponsored by:
League of California Cities
California Association of Sanitation Agencies
California Water Environment Association
September 29, 2006
Reply to:
813 Sixth Street, Third Floor
(916) 446-7979
[email protected]
Via E-mail & First-Class Mail
Mr. Bruce Wolfe, Executive Officer
San Francisco Bay Regional Water
Quality Control Board
1515 Clay Street, Suite 1400
Oakland, CA 94612
SUBJECT:
Proposed Amendment to the Water Quality Control Plan for the San
Francisco Bay Basin: Site Specific Water Quality Objectives and
Implementation Plan for Cyanide in San Francisco Bay
Dear Mr. Wolfe:
The California Association of Sanitation Agencies (CASA) and Tri-TAC
appreciate the opportunity to provide comments on the proposed amendment of the Water
Quality Control Plan for the San Francisco Bay Basin to adopt site-specific water quality
objectives and an associated implementation plan for cyanide. CASA and Tri-TAC are
statewide organizations comprised of members from public agencies and other
professionals responsible for wastewater treatment. Tri-TAC is jointly sponsored by
CASA, the California Water Environment Association, and the League of California
Cities. The constituency base for CASA and Tri-TAC collects, treats and reclaims more
than two billion gallons of wastewater each day and serves most of the sewered
population of California.
CASA and Tri-TAC support the proposed site specific water quality objectives
and the proposed Basin Plan Amendment which incorporates the Implementation Plan for
Cyanide in San Francisco Bay. We have identified the development of appropriate
objectives and effluent limitations for cyanide as a top priority. We are concerned that
implementation of the National Toxic Rule (NTR) criteria for cyanide as end-of-pipe
effluent limitations may place public wastewater treatment agencies in noncompliance,
yet there is no evidence that these levels are required to protect beneficial uses in all
189
Mr. Bruce Wolfe, Executive Officer
San Francisco Bay Regional Water
Quality Control Board
September 29, 2006
Page 2
waters of the state. In some cases, the NTR criteria are derived from analyses of sensitive
aquatic species that are not resident in the water body. Such is the case with San
Francisco Bay.
Cyanide is not a persistent pollutant; it degrades and attenuates in the
environment. We concur with the Regional Water Board that accounting for this natural
degradation of cyanide in surface water is critical to the development of the Basin Plan
amendment and implementation plan for the site-specific objective. The NTR does not
account for this attenuation because the studies that brought this to light were conducted
after the NTR was adopted. The Regional Water Board proposal is based on the most
current scientific and site-specific information about the aquatic life in the San Francisco
Bay and other western marine waters.
We commend the Regional Water Board for undertaking this process. The
development of site specific objectives is an important tool to ensure appropriate
standards for our state’s waters. The proposed cyanide Basin Plan amendment is an
excellent demonstration of how this process, involving rigorous science and water body
specific data, can be successful in protecting both water quality and public resources.
Sincerely,
Roberta L. Larson
Director, Legal and Regulatory Affairs
CASA
Charles V. Weir
Chair
Tri-TAC
RLL/jp
CVW/jp
cc:
USEPA Region IX, Doug Eberhardt
SWRCB, Ken Harris
190
CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD
<NAME> REGION
<Address>
<Phone Number> y Fax <Fax Number>
http://www.waterboards.ca.gov
ORDER NO. <XX-XXXX-XXX>
NPDES NO. <CAXXXXXXX>
WASTE DISCHARGE REQUIREMENTS <AND MASTER RECLAMATION PERMIT> FOR THE
<DISCHARGERPERMITTEE>, <FACILITY>
<optional: DISCHARGE TO THE <WATERBODY><VIA OPTIONAL OUTFALL NAME>>
Reference to a waterbody is not required in the title. There may be multiple receiving waters that are
better described in Table 2 below. The WDRs may also be regulating non-NPDES discharges.
Comment: The permit template is for NPDES permits. Non-NPDES activities should be
regulated by other regulatory mechanisms because different enforcement conditions apply.
Comment [MO1]: Tri-TAC would
like the State Water Board to use the
word "Permittee" instead of "Discharger"
because "Permittee" is used in the federal
regulations, and this is largely a federal
(NPDES) permit, and because it is a more
precise description of the range of
NPDES Permittees (not all have
discharges all or some of the time).
The following Discharger Permittee is subject to waste discharge requirements as set forth
in this Order:
Table 1. DischargerPermittee Information
DischargerPermittee
Name of Facility
<Site Owner/Operator/Property Owner>
<Facility Name, Facility City>
<Facility Street Address>
Facility Address
<Facility City, State Zip>
<Facility County Name>
The U.S. Environmental Protection Agency (USEPA) and the Regional Water Quality Control Board have
classified this discharge as a <major or minor> discharge.
The discharge by the <Owner/Operator> from the discharge points identified below is
subject to waste discharge requirements as set forth in this Order:
Table 2. Discharge Location
Discharge
Point
001
<XXX>
Effluent
Description
<type(s) of
effluent>
Discharge Point
Latitude
<xx> º, <xx>’, <xx>”
N
Discharge Point
Longitude
<xx> º, <xx>’, <xx>”
W
<Receiving water
001>
<type(s) of
effluent>
<xx> º, <xx>’, <xx>”
N
<xx> º, <xx>’, <xx>”
W
<Receiving water
002>
Receiving Water
Table 3. Administrative Information
This Order was adopted by the Regional Water Quality Control Board on:
This Order shall become effective on:
This Order shall expire on:
The DischargerPermittee shall file a Report of Waste Discharge in
accordance with title 23, California Code of Regulations, as application for
issuance of new waste discharge requirements no later than:
<Adoption Date>
<Effective Date>
<Expiration Date>
[Choose: 180 days prior to
the Order expiration date OR
<insert date>]
191
The effective date for the permit can be up to 50 days following the adoption date, when substantial
comments are made on the draft (pursuant to the MOA with USEPA).
Select only one of the following three paragraphs. Use the following paragraph if the prior permit is still
in effect and the Regional Board is revoking (rescinding) the old permit and reissuing a new permit.
IT IS HEREBY ORDERED, that Order No. <Insert No.> is rescinded upon the effective
date of this Order except for enforcement purposes allowed under the applicable
statutes of limitation, and, in order to meet the provisions contained in division 7 of the
Water Code (commencing with section 13000) and regulations adopted thereunder, and
the provisions of the federal Clean Water Act (CWA) and regulations and guidelines
adopted thereunder, the DischargerPermittee shall comply with the requirements in this
Order.
Comment [MT2]: The HEREBY
ORDERED part should not be in this first
section, but after the FINDINGS,
otherwise the findings appear to be
enforceable when they should not be. For
example, where final effluent limits are
placed in the findings, they are not to
apply. However, with this Order section
up front, there could be an argument
made that those final limits would apply.
Use the following paragraph if the prior permit has already expired.
IT IS HEREBY ORDERED, that this Order supercedes Order No. <Insert No.> except for
enforcement allowed under the applicable statutes of limitationpurposes, and, in order
to meet the provisions contained in division 7 of the Water Code (commencing with section
13000) and regulations adopted thereunder, and the provisions of the federal Clean Water
Act (CWA) and regulations and guidelines adopted thereunder, the DischargerPermittee
shall comply with the requirements in this Order.
Use the following paragraph for a new Discharger.
IT IS HEREBY ORDERED, that in order to meet the provisions contained in division 7 of
the Water Code (commencing with section 13000) and regulations adopted thereunder
and the provisions of the federal Clean Water Act (CWA) and regulations and guidelines
adopted thereunder, the DischargerPermittee shall comply with the requirements in this
Order.
Comment: References to potential enforcement actions should include references to the
statute of limitations. The permit template states that the previous applicable Order will be
rescinded or superceded “except for enforcement purposes.” This reservation of enforcement
authority is not without temporal limitation. There are applicable statutes of limitation that
would apply in this case to prevent enforcement beyond the statutorily-limited timeframe.
The Code of Civil Procedure (C.C.P.) at section 338(i) sets forth a three-year statute of
limitations for commencing an action under the Porter Cologne Water Quality Control Act
(Division 7, commencing with Section 13000) of the Water Code. Under this statutory
provision, a cause of action shall not be deemed to have accrued until the discovery by the
regional board of the facts constituting grounds for commencing actions under their jurisdiction.
Since the state law authorizing administrative enforcement is contained in Division 7 of the
Water Code, in Section 13385, the three-year statute of limitations would apply to any
proposed enforcement action.
Similarly, under the federal Clean Water Act, for USEPA and citizen enforcement, there is a
five-year statute of limitations, so no enforcement could occur for any violations that occurred
192
more than five years before the effective date of the new permit. 1 Therefore, the Tentative
Order should be amended to state that the previous permit is rescinded “except for
enforcement allowed under the applicable statutes of limitation.”
I, <Executive Officer>, Executive Officer, do hereby certify that this Order with all
attachments is a full, true, and correct copy of an the Order adopted by the California
Regional Water Quality Control Board, <Regional Water Board Name> Region, on
<Adoption Date>.
________________________________________
<Executive Officer>, Executive Officer
1
28 U.S.C. Section 2462, which states, “Except as otherwise provided by Act of Congress, an action, suit or proceeding for
the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced
within five years from the date when the claim first accrued…”.
193
DISCHARGER
FACILITY NAME
ORDER NO. XX-XXXX-XXX
NPDES NO. CAXXXXXXX
PERMITTEE
NAME
PERMITTEE
NAME
FACILITY
NAME
FACILITY
NAME
ORDER
NO. XX-XXXX-XXX
ORDER
NO. XX-XXXX-XXX
NPDES
NO. CAXXXXXXX
NPDES
NO. CAXXXXXXX
Table of Contents
I.
II.
III.
IV.
Facility Information ............................................................................................................ 5
Findings ............................................................................................................................. 6
Discharge Prohibitions..................................................................................................... 14
Effluent Limitations and Discharge Specifications ........................................................... 16
A. Effluent Limitations – Discharge Point <Discharge Point Name> ............................. 16
B. Land Discharge Specifications – Discharge Point <Discharge Point Name>............ 20
C. Reclamation Specifications – Discharge Point <Discharge Point Name>................. 21
V. Receiving Water Limitations ............................................................................................ 21
A. Surface Water Limitations......................................................................................... 21
B. Groundwater Limitations ........................................................................................... 22
VI. Provisions ........................................................................................................................ 23
A. Standard Provisions.................................................................................................. 23
B. Monitoring and Reporting Program (MRP) Requirements ........................................ 24
C. Special Provisions..................................................................................................... 25
1. Reopener Provisions............................................................................................. 25
2. Special Studies, Technical Reports and Additional Monitoring Requirements...... 25
3. Best Management Practices and Pollution Prevention ......................................... 28
4. Construction, Operation and Maintenance Specifications..................................... 29
5. Special Provisions for Municipal Facilities (POTWs Only) .................................... 29
6. Other Special Provisions....................................................................................... 31
7. Compliance Schedules ......................................................................................... 31
VII. Compliance Determination .............................................................................................. 32
List of Tables
DischargerPermittee Information ................................................................................ 1
Discharge Location ..................................................................................................... 1
Administrative Information .......................................................................................... 1
Facility Information...................................................................................................... 5
Basin Plan Beneficial Uses......................................................................................... 9
Effluent Limitations ................................................................................................... 17
Interim Effluent Limitations ....................................................................................... 19
Land Discharge Specifications ................................................................................. 20
Reclamation Discharge Specifications...................................................................... 21
Version:
2005-1
Version:
2005-1
Table 1.
Table 2.
Table 3.
Table 4.
Table 5.
Table 6.
Table 7.
Table 8.
Table 9.
List of Attachments
Attachment A – Definitions ..................................................................................................... A-1
Attachment B – Map ............................................................................................................... B-1
Attachment C – Flow Schematic.............................................................................................C-1
Attachment D – Standard Provisions......................................................................................D-1
Attachment E – Monitoring and Reporting Program (MRP) .................................................... E-1
Attachment F – Fact Sheet ..................................................................................................... F-1
Regional Water Boards may include additional Attachments as necessary.
Order (Version 2006-1B)
4
194
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
I. FACILITY INFORMATION
The following DischargerPermittee is subject to waste discharge requirements as set forth
in this Order:
Table 4. Facility Information
DischargerPermittee
Name of Facility
Facility Address
Facility Contact, Title, and
Phone
Mailing Address
Type of Facility
Facility Design Flow
<Facility Name, Facility City>
<Facility Contact Name>, <Title>, <Facility Contact Phone>
<SAME> or
<Facility Mailing Street Address> <Facility Mailing City, State Zip>
<Facility Type; e.g., Publicly Owned Treatment Works or
Industrial>
<Facility Design Flow (in million gallons per day)>
Version: 2005-1
Limitations and Discharge Requirements (Version 2006-1B)
5
195
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
II. FINDINGS
The California Regional Water Quality Control Board, <Regional Water Board Name>
Region (hereinafter Regional Water Board), finds:
A. Background. <Operator/Co-Permittee/Property Owner> (hereinafter
DischargerPermittee) is currently discharging pursuant to Order No. <Existing Order
No.> and National Pollutant Discharge Elimination System (NPDES) Permit No.
<Existing NPDES Permit No.>. The DischargerPermittee submitted a Report of Waste
Discharge, dated <Application Date>, and applied for a NPDES permit renewal to
discharge up to <Authorized Flow> of <treated/untreated> wastewater from <Facility
Name>, hereinafter Facility. The application was deemed complete on <Date
Application Complete>.
Note: Replace the text above with the following paragraph for a new Discharger.
<Operator/Co-Permittee/Property Owner> (hereinafter DischargerPermittee)
submitted a Report of Waste Discharge, dated <Application Date>, and applied for a
National Pollutant Discharge Elimination System (NPDES) permit authorization to
discharge up to <Authorized Flow> of <treated/untreated> wastewater from <Facility
Name>. The application was deemed complete on <Date Application Complete>.
For the purposes of this Order, references to the “discharger” or “permittee” in
applicable federal and state laws, regulations, plans, or policy are held to be equivalent
to references to the DischargerPermittee herein.
Version: 2005-1
B. Facility Description. The DischargerPermittee <owns and> operates <Type of
Facility>. The treatment system consists of <Brief Treatment System Description>.
Wastewater is discharged from Discharge <Discharge Point or Points> (see table on
cover page) to the <Receiving Water or Waters>, <a water or waters> of the United
States, [and a tributary to <Downstream Water>] within <Watershed Name>.
Attachment B provides a map of the area around the facility. Attachment C provides a
flow schematic of the facility.
C. Legal Authorities. This Order is issued pursuant to section 402 of the federal Clean
Water Act (CWA) and implementing regulations adopted by the U.S. Environmental
Protection Agency (USEPA) and chapter 5.5, division 7 of the California Water Code
(commencing with section 13370). It shall serve as a NPDES permit for point source
discharges from this facility to surface waters. This Order also serves as Waste
Discharge Requirements (WDRs) pursuant to article 4, chapter 4, division 7 of the Water
Code (commencing with section 13260).
D. Background and Rationale for Requirements. The Regional Water Board developed
the requirements in this Order based on information submitted as part of the application,
through monitoring and reporting programs, and other available information. The Fact
Sheet (Attachment F), which contains background information and rationale for Order
requirements, is hereby incorporated into this Order and constitutes unenforceable part
Comment [MO3]: Since they are
unenforceable, this should be stated so
the Permittee is aware of the situation.
6
196
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
of the Findings for this Order. Attachments A through E <and G through # > are also
incorporated into this Order.
New Sources: If the Discharger is a new source, as defined by the CWA, then CEQA must be met
(Water Code § 13389) and this finding must be revised to indicate that CEQA requirements have
been met.
For Discharges not regulated under an NPDES permit: Refer to sample language requirements within
APM Chapter 9, item 2, for various discharge conditions.
Justification: Discharges not regulated under an NPDES permit should not be included in
the NPDES permit, because the California Supreme Court ruled that permit requirements
that go beyond federal requirements must meet a different legal standard in terms of
supporting documentation. Also enforcement conditions differ.
E. California Environmental Quality Act (CEQA). Under Water Code section 13389,
this action to adopt an NPDES permit is exempt from the provisions of Chapter 3 of
CEQA, Public Resources Code sections 21100-21177.
Comment [MO4]: Section 13389
limits the exemption to Chapter 3, so this
language should track the statutory
language.
Comment [MT5]: This section does
not apply across the Board and should not
be included routinely. We have seen this
being put in places where it does not
belong.
G. Water Quality-Based Effluent Limitations. Section 301(b) of the CWA and section
122.44(d) of 40 CFR require that permits include limitations more stringent than
applicable federal technology-based requirements where necessary to achieve
applicable water quality standards. <This Order contains requirements, expressed
as a technology equivalence requirement, more stringent than secondary
treatment requirements that are necessary to meet applicable water quality
standards. The rationale for these requirements, which consist of <tertiary
treatment or equivalent requirements or other provisions>, is discussed in
<reference where discussed in the Fact Sheet>.>
Section 122.44(d)(1)(i) mandates requires that permits include effluent limitations for all
pollutants that are or may be discharged at levels that have the reasonable potential to
cause or contribute to an exceedance of a water quality standard, including numeric and
1
Comment [MO6]: Tri-TAC would
like to suggest a less sensational term.
All further statutory references are to title 40 of the Code of Federal Regulations unless otherwise indicated.
7
197
Version: 2005-1
F. Technology-based Effluent Limitations. Section 301(b) of the CWA and
implementing USEPA permit regulations at section 122.44, title 40 of the Code of
Federal Regulations 1, require that permits include conditions meeting applicable
technology-based requirements at a minimum, and any more stringent effluent
limitations necessary to meet applicable water quality standards. The discharge
authorized by this Order must meet minimum federal technology-based requirements
based on <Secondary Treatment Standards at Part 133> or <Effluent Limitations
Guidelines and Standards for the XXXX Category in Part 4XX> and/or < Best
Professional Judgment (BPJ) in accordance with Part 125, section 125.3>. A
detailed discussion of the technology-based effluent limitations development is included
in the Fact Sheet.
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
narrative objectives within a standard. Where reasonable potential has been
established for a pollutant, but there is no numeric criterion or objective for the pollutant,
water quality-based effluent limitations (WQBELs) must may be established using: (1)
USEPA criteria guidance under CWA section 304(a), supplemented where necessary
by other relevant information including site-specific applicability; (2) an indicator
parameter for the pollutant of concern; or (3) a State policy interpreting narrative criteria,
calculated numeric water quality criterion, such as a proposed state criterion or policy
interpreting the state’s narrative criterion, supplemented with other relevant information,
as provided in section 122.44(d)(1)(vi).
Comment [MO7]: Under State law, a
"proposed state criterion" cannot be used
or this would be considered underground
rulemaking.
Further Comment: The permit template should not encourage the use of unpromulgated
criteria guidance or other guidance criteria to interpret narrative objectives and to write numeric
effluent limits unless those criteria have been demonstrated with evidence in the record to be
applicable given the site specific situation to which they are being applied. Further, if numeric
guidance criteria exist, the Clean Water Act requires that these criteria be adopted as numeric
water quality standards – not be used to interpret narrative objectives since narrative
objectives were merely intended to be placeholders until numeric standards could be adopted.
H. Water Quality Control Plans. The Regional Water Board adopted a Water Quality
Control Plan for the <Basin Name> (hereinafter Basin Plan) on <date> that designates
beneficial uses, establishes water quality objectives, and contains implementation
programs and policies to achieve those objectives for all waters addressed through the
plan. In addition, the Basin Plan implements State Water Resources Control Board
(State Water Board) Resolution No. 88-63, which established state policy that all
waters, with certain exceptions, should be considered suitable or potentially suitable for
municipal or domestic supply. <Modify if such an exception applies and provide
rationale in the Fact Sheet.> Beneficial uses applicable to <Receiving Water(s)> are
as follows:
Version: 2005-1
Note: Replace the above language with the following if the Tributary Rule is applicable.
H. Water Quality Control Plans. The Regional Water Board adopted a Water Quality
Control Plan for the <Basin Name> (hereinafter Basin Plan) on <date> that designates
beneficial uses, establishes water quality objectives, and contains implementation
programs and policies to achieve those objectives for all waters addressed through the
plan. The Basin Plan at <Cite Page Number> states that the beneficial uses of any
specifically identified water body generally apply to its tributary streams. The Basin
Plan does not specifically identify beneficial uses for <Receiving Water>, but does
identify present and potential uses for <Downstream Water Body>, to which
<Receiving Water>, via <Intermediate Water Body>, is tributary. These beneficial
uses are <List Beneficial Uses>. In addition, the Basin Plan implements State Water
Resources Control Board (State Water Board) Resolution No. 88-63, which established
state policy that all waters, with certain exceptions, should be considered suitable or
potentially suitable for municipal or domestic supply. <Modify if such an exception
Comment [MO8]: It seems like
picking a date for a Basin Plan adoption
is quite complicated because of
amendments, etc.
Comment [MT9]: This Resolution
was overturned by the OAL and should
not be used to presume any MUN use
exists.
8
198
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
applies and provide rationale in the Fact Sheet.> Thus, as discussed in detail in the
Fact Sheet, beneficial uses applicable to <Receiving Waters> are as follows:
Table 5. Basin Plan Beneficial Uses
Discharge Point
Receiving Water Name
Beneficial Use(s)
001
<Receiving water name;
including surface and
ground waters as
appropriate>
<XXX>
<Receiving water name;
including surface and
ground waters as
appropriate>
<Beneficial Uses; Examples follow if uses have been
qualified under their designation; modify however,
uses should be categorized as only if applicablesuch
categorizations are present in the Basin Plan>
Existing:
Warm freshwater habitat (WARM); wildlife habitat
(WILD), preservation or rare, threatened or endangered
species (RARE).
Intermittent:
Ground water recharge (GWR), freshwater
replenishment (FRESH), contact (REC-1) and noncontact (REC-2) water recreation.
Potential:
Municipal and domestic water supply (MUN).
<Beneficial Use(s)>
Requirements of this Order implement the Basin Plan.
If applicable in reference to the Basin Plan, add a discussion of receiving waters on the CWA
section 303(d) list and of any TMDLs completed that affect the basis of the water quality-based
effluent limitations contained in the Order. Additional discussions may be included related to
endangered species considerations or other requirements that may affect development of water
quality-based effluent limitations. The Fact Sheet should provide a more detailed discussion of
these issues.
Version: 2005-1
Note: Include the following paragraph for discharges of thermal waste or elevated temperature
waste (defined in the Thermal Plan) to cold and warm interstate and international waters, coastal
waters outside of enclosed bays and estuaries but within California territorial limits, enclosed bays,
estuaries, and coastal lagoons. Other types of discharges to these waters may require “limitations or
additional limitations” defined in the Thermal Plan. Do not include the paragraph if the Thermal
Plan does not apply.
The State Water Board adopted the Water Quality Control Plan for Control of
Temperature in the Coastal and Interstate Water and Enclosed Bays and Estuaries of
California (Thermal Plan) on May 18, 1972, and amended this plan on September 18,
1975. This plan contains temperature objectives for surface waters. Requirements of
this Order implement the Thermal Plan.
I. National Toxics Rule (NTR) and California Toxics Rule (CTR). USEPA adopted the
NTR on December 22, 1992, and later amended it on May 4, 1995 and November 9,
1999. About forty criteria in the NTR applied in California. On May 18, 2000, USEPA
Comment [MO10]: The Thermal Plan
does not apply everywhere, so more
guidance should be provided regarding
where it does apply.
9
199
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
adopted the CTR. The CTR promulgated new toxics criteria for California and, in
addition, incorporated the previously adopted NTR criteria that were applicable in the
state. The CTR was amended on February 13, 2001. These rules contain federal water
quality criteria for priority pollutants.
J. State Implementation Policy. On March 2, 2000, the State Water Board adopted the
Policy for Implementation of Toxics Standards for Inland Surface Waters, Enclosed
Bays, and Estuaries of California (State Implementation Policy or SIP). The SIP
became effective on April 28, 2000 with respect to the priority pollutant criteria
promulgated for California by the USEPA through the NTR and to the priority pollutant
objectives established by the Regional Water Board in the Basin Plan. The SIP became
effective on May 18, 2000 with respect to the priority pollutant criteria promulgated by
the USEPA through the CTR. The State Water Board adopted amendments to the SIP
on February 24, 2005 that became effective on July 13, 2005. The SIP establishes
implementation provisions for priority pollutant criteria and objectives and provisions for
chronic toxicity control. Requirements of this Order implement the SIP.
L. Alaska Rule. On March 30, 2000, USEPA revised its regulation that specifies when
new and revised state and tribal water quality standards (WQS) become effective for
CWA purposes. (40 C.F.R. § 131.21; 65 Fed. Reg. 24641 (April 27, 2000).) Under the
revised regulation (also known as the Alaska rule), new and revised standards
submitted to USEPA after May 30, 2000, must be approved by USEPA before being
used for CWA purposes. The final rule also provides that standards already in effect
and submitted to USEPA by May 30, 2000 may be used for CWA purposes, whether or
not approved by USEPA.
M. Stringency of Requirements for Individual Pollutants. This Order contains both
technology-based and water quality-based effluent limitations for individual pollutants.
The technology-based effluent limitations consist of restrictions on <pollutants listed>.
Restrictions on <same pollutants listed or referenced> are discussed in <reference
Version: 2005-1
K. Compliance Schedules and Interim Requirements. Section 2.1 of the SIP provides
that, based on a DischargerPermittee’s request and demonstration that it is infeasible
for an existing DischargerPermittee to achieve immediate compliance with an effluent
limitation derived from a CTR criterion, compliance schedules may be allowed in an
NPDES permit. Unless an exception has been granted under section 5.3 of the SIP, a
compliance schedule may not exceed 5 years from the date that the permit is issued or
reissued, nor may it extend beyond 10 years from the effective date of the SIP (or May
18, 2010) to establish and comply with CTR criterion-based effluent limitations. Where
a compliance schedule for a final effluent limitation exceeds 1 year, the Order must
include interim numeric limitations for that constituent or parameter. Where allowed by
the <Basin Plan>, compliance schedules and interim effluent limitations or discharge
specifications may also be granted to allow time to implement a new or revised water
quality objective. This Order <does or does not> include compliance schedules and
interim <effluent limitations and/or discharge specifications>. <A detailed
discussion of the basis for the compliance schedule(s) and interim effluent
limitation(s) and/or discharge specifications is included in the Fact Sheet.>
Comment [MT11]: This section will
rarely apply and should not be routinely
included. All of the Basin Plans were
approved/disapproved before the May 30,
2000 deadline so this no longer applies as
now all WQS must be approved by EPA.
10
200
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
where discussed in the Fact Sheet>. This Order’s technology-based pollutant
restrictions implement the minimum, applicable federal technology-based requirements.
<In addition, this Order contains effluent limitations more stringent than the minimum,
federal technology-based requirements that are necessary to meet water quality
standards.> <These limitations are not more stringent than required by the CWA.> OR
<These requirements include some limitations that are more stringent than required by
the CWA.>
If restrictions are not more stringent, use the following language.
Water quality-based effluent limitations have been scientifically derived to implement
water quality objectives that protect beneficial uses. Both the beneficial uses and the
water quality objectives have been approved pursuant to federal law and are the
applicable federal water quality standards. To the extent that toxic pollutant water
quality-based effluent limitations were derived from the CTR, the CTR is the applicable
standard pursuant to section 131.38. The scientific procedures for calculating the
individual water quality-based effluent limitations for priority pollutants are based on the
CTR-SIP, which was approved by USEPA on May 18, 2000. <Most/All> beneficial
uses and water quality objectives contained in the Basin Plan were approved under
state law and submitted to and approved by USEPA prior to May 30, 2000. Any water
quality objectives and beneficial uses submitted to USEPA prior to May 30, 2000, but
not approved by USEPA before that date, are nonetheless “applicable water quality
standards for purposes of the CWA” pursuant to section 131.21(c)(1). <If “Most” is
selected above: The remaining water quality objectives and beneficial uses
implemented by this Order (specifically <list Basin Plan pollutant objectives>) were
approved by USEPA on <dates>, respectively, and are applicable water quality
standards pursuant to section 131.21(c)(2).> Collectively, this Order’s restrictions on
individual pollutants are no more stringent than required to implement the requirements
of the CWA.
The following additional language should be used if the discharger has submitted
economic data and the effluent limitations are only as stringent as necessary to
implement federal water quality standards.
On <date>, 2005, the DischargerPermittee submitted economic information indicating
that the cost of complying with this Order would be <$$>. The Regional Water Board
has considered the specific costs identified in the DischargerPermittee’s submittal.
<The DischargerPermittee’s submittal does not consider more cost-effective
means of implementing this Order, such as source control efforts.> As discussed
in <reference where discussed in the Fact Sheet>, the individual pollutant restrictions
are no more stringent than necessary to implement applicable federal requirements or
standards under the CWA. Relaxation of the effluent limitations is not permissible.
Comment [MT13]: This seems like a
strange addition. Are source controls
being considered as an alternative to
numeric effluent limits?
Comment [MT14]: This, without
explanation, should not be routinely
included in permits because there are
situations under anti-backsliding where
relaxation is allowed and is being
implemented.
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201
Version: 2005-1
Consider adding the following model paragraph to complement the above language if
economic data have been submitted.
Comment [MT12]: This language is
objectionable as an across the board
insert in permits. This analysis is permit
specific and this is merely an attempt to
thwart the Supreme Court’s ruling in the
Burbank case
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
Where appropriate, this Order <or the accompanying Cease and Desist/Time
Schedule Order> provides additional time to achieve the pollutant-specific restriction.
Use the following language if one or more effluent limitations are more stringent than
limitations necessary to implement minimum federal requirements. For example, this
language should be used if effluent limitations more stringent than limitations based on an
existing applicable numeric objective are included in the permit.
This Order contains pollutant restrictions that are more stringent than applicable federal
requirements and standards. Specifically, this Order includes effluent limitations for
<list pollutants> that are more stringent than applicable federal standards, but that are
nonetheless necessary to meet numeric objectives or protect beneficial uses. The
rationale for including these limitations is explained in <reference where discussed in
the Fact Sheet>. In addition, the Regional Water Board has considered the factors in
Water Code section 13241 in <reference where discussed in the Fact Sheet>.
economic data. However, the effluent limitations are reasonably necessary to protect
beneficial uses and the cost for compliance does not justify failing to protect the beneficial
uses.
N. Antidegradation Policy. Section 131.12 of 40 CFR requires that the state water quality
standards include an antidegradation policy consistent with the federal policy. The
State Water Board established California’s antidegradation policy in State Water Board
Resolution No. 68-16, which has been deemed to be consistent with the . Resolution
No. 68-16 incorporates the federal antidegradation policy, where the federal policy
applies under federal law. Resolution No. 68-16 requires that existing quality of waters
be maintained unless degradation is justified based on specific findings. The Regional
Water Board’s Basin Plan implements, and incorporates by reference, both the state
and federal antidegradation policies. As discussed in detail in the Fact Sheet the
permitted discharge is consistent with the antidegradation provision of section 131.12
and State Water Board Resolution No. 68-16.
Version: 2005-1
On <date>, the DischargerPermittee submitted economic information indicating that the
cost of complying with this Order would be <$$>. The Regional Water Board has
considered the specific costs identified in the DischargerPermittee’s submittal. <The
DischargerPermittee’s submittal does not consider more cost-effective means of
implementing the permit, such as source control efforts.> As discussed in
<reference where discussed in the Fact Sheet>, the individual pollutant restrictions
are reasonably necessary to protect beneficial uses identified in the Basin Plan, and the
economic information related to costs of compliance are not sufficient, in the Regional
Water Board’s determination, to justify failing to protect beneficial uses. Where
appropriate, this Order <or the accompanying Cease and Desist/Time Schedule
Order> provides additional time to achieve the pollutant-specific restriction.
Comment [MO15]: A resolution
adopted in 1968 cannot incorporate
federal requirements adopted in the 1980s
or 90s.
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202
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
O. Anti-Backsliding Requirements. Sections 402(o)(2) and 303(d)(4) of the CWA and
federal regulations at title 40, Code of Federal Regulations section 122.44(l) prohibit
restrict backsliding in NPDES permits. These anti-backsliding provisions require
effluent limitations in a reissued permit to be as stringent as those in the previous
permit, with some exceptions where limitations may be relaxed. In accordance with the
State Board’s precedential orders, the lack of reasonable potential falls within the new
information exception and justifies removal of effluent limitations. <All effluent limitations
in this Order are at least as stringent as the effluent limitations in the previous
Order.> or <Some effluent limitations in this Order are less stringent that those in
the previous Order. As discussed in detail in the Fact Sheet this relaxation of
effluent limitations is consistent with the anti-backsliding requirements of the
CWA and federal regulations.>
Comment [MT16]: These no longer
apply for the most part since they were
prior to the statutory change and were not
revised accordingly.
Comment: The Clean Water Act does not prohibit backsliding but rather restricts it to certain
circumstances. The permit templates contain the statement, “Sections 402(o)(2) and 303(d)(4) of
the CWA and federal regulations at title 40, Code of Federal Regulations section 122.44(I)
prohibit backsliding in NPDES permits.” (Ocean discharge template Section II.M and surface
water discharge template Section II.O.) This statement is not correct. In actuality, the CWA does
not prohibit backsliding, but rather restricts backsliding in NPDES permits to certain instances
where exceptions are not present.
P. Monitoring and Reporting. Section 122.48 requires that all NPDES permits specify
requirements for recording and reporting monitoring results. Water Code sections
13267 and 13383 authorizes the Regional Water Board to require technical and
monitoring reports when a burden analysis has been completed. The Monitoring and
Reporting Program establishes monitoring and reporting requirements to implement
federal and State requirements. This Monitoring and Reporting Program is provided in
Attachment E.
Q. Standard and Special Provisions. Standard Provisions, which apply to all NPDES
permits in accordance with section 122.41, and additional conditions applicable to
specified categories of permits in accordance with section 122.42, are provided in
Attachment D. The dischargerPermittee must comply with all standard provisions and
with those additional conditions that are applicable under section 122.42. The Regional
Water Board has also included in this Order special provisions applicable to the
DischargerPermittee. A rationale for the special provisions contained in this Order is
provided in the attached Fact Sheet.
Comment [MT18]: Saying this may
cause two permit violations. One for
violating the standard provision and one
for violating this “finding.” See comment
above about location of Order language.
Comment: Several Regional Water Boards are including duplicative standard provisions, which could
arguably cause duplicate permit violations. Also, many of these provisions are slightly different from the
federal ones, causing confusion as to which applies. Only one should be included.
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203
Version: 2005-1
Note: For special monitoring reports required under section 13267, include a brief burden analysis
which includes an explanation of the need for the report here (with reference to more detailed
rationale contained in the Fact Sheet).
Comment [MO17]: The Regional
Water Board must demonstrate with
evidence in the record that the burden,
including costs, of these reports bears a
reasonable relationship to the need for the
reports and shall identify the evidence
that supports requiring the permit holder
to provide the reports.
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
Note: In accordance with Water Code section 13263.3, the permit findings must justify why a
pollution prevention plan is required. Section 13263.3(d) lists four possible bases. Greater detail
must be provided in the Fact Sheet.
In accordance with Water Code section 13267, the findings must also address the need for and
evidence supporting non-NPDES monitoring, studies, etc. and NPDES special studies, special
investigations, etc. that go beyond the requirements of the NPDES permit regulations. Greater
detail must be provided in the Fact Sheet.
R. Provisions and Requirements Implementing State Law. The
provisions/requirements in subsections <IV.B, IV.C, V.B, and VI.C.<#>> of this Order
are included to implement state law only. These provisions/requirements are not
required or authorized under the federal CWA; consequently, violations of these
provisions/requirements are not subject to the enforcement remedies that are available
for NPDES violations.
This section was left in, in the event that Non-NPDES activities end up in permits.
S. Notification of Interested Parties. The Regional Water Board has notified the
DischargerPermittee and interested agencies and persons of its intent to adopt and
NPDES permit and prescribe Waste Discharge Requirements for the discharge, and
has provided them with an opportunity to submit their written comments and
recommendations. Details of notification are provided in the Fact Sheet of this Order.
T. Consideration of Public Comment. The Regional Water Board, in a public meeting,
heard and considered all comments pertaining to the discharge. Details of the Public
Hearing are provided in the Fact Sheet of this Order.
This section includes any general prohibitions that are standard for all permits. In addition, any
prohibitions unique to the Regional Water Board issuing the Order or to the Discharger Permittee
must be included in this section. Sample Order language follows:
Comment [CVW19]: Prohibitions A
and B were issues raised by EPA during
the EBDA permit renewal (Region 2) in
August. EPA approved the language that
Tri-TAC has added here.
A. Discharge of treated wastewater at a location <or period> different from that described in this
Order is prohibited.
B. The bypass or overflow of untreated wastewater or wastes to surface waters or surface water
drainage coursesWaters of the U.S. is prohibited, except as allowed in Standard Provision
I.G. of Attachment D, Standard Provisions.
Comment: The prohibitions above are not required by any law. Prohibition language should
be carefully tailored and consistent with the statewide SSO WDR adopted May 2, 2006.
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204
Version: 2005-1
III. DISCHARGE PROHIBITIONS
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
A. <Include discharge prohibition>
B. <etc.>
Version: 2005-1
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205
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
IV. EFFLUENT LIMITATIONS AND DISCHARGE SPECIFICATIONS
The Fact Sheet, Attachment F should be completed prior to beginning this section.
This subsection includes final and, where applicable, interim effluent limitations for EACH
DISCHARGE POINT TO SURFACE WATERS and, if applicable, INTERNAL WASTE STREAM
COMPLIANCE POINTS (e.g., 40 C.F.R. § 122.45(h)). Therefore, the table and any other
requirements are repeated for each DISCHARGE POINT. Note that MONITORING LOCATIONS
will be specified in the Monitoring and Reporting Program (Attachment E) for determining
compliance with effluent limitations, which may be in some cases, distinct from the actual
Discharge Points.
A permit writer may elect to combine the requirements for more than one Discharge Point into a
single table if the requirements for those Discharge Points are EXACTLY THE SAME. Otherwise,
separate tables are required. IMPORTANT! For more complex discharge situations (e.g., multiple
discharge points, seasonal limitations, and/or final and interim limitations), the permit writer must
re-format the table arrangements and requirements all within subsection A. The Land Discharge
Specifications in subsection B (if applicable) and Reclamation Specifications in subsection C (if
applicable) must follow Effluent Limitations of subsection A in the lettered sequence; otherwise
hyperlinks for the Table of Contents will be fouled. Comment: The permit template is for NPDES
permits. Non-NPDES activities should be regulated by other regulatory mechanisms because different
enforcement conditions apply
Version: 2005-1
Attachment A includes the definitions of the term “daily discharge” and the recommended effluent
limit bases that are applicable under statewide policy and reflected in the effluent limitation tables .
These definitions and how they are applied are discussed further in the Guide that accompanies this
template. Because applicable regulations, policies, and plans vary by type of facility (POTW or nonPOTW) and discharge location (non-ocean or ocean), the recommended standard limitation bases
vary by type of facility and discharge location. Additional effluent limitation bases are not included
in the effluent limitation tables. The appropriate effluent limitation bases for parameters such as
bacteria and whole effluent toxicity (e.g., percent survival, five-sample median, geometric mean) vary
because of differences in how the Basin Plan water quality objectives for these parameters are
expressed. Include limitations for these and other parameters that use alternate effluent limitation
bases in numbered requirements below the table of effluent limitations.
An example of an effluent limitation basis that may be required in some permits is an average
annual effluent limitation. Where more immediate information regarding compliance is desirable,
one alternative to including an average annual effluent limitation in the permit is to determine
appropriate average monthly effluent limitations instead. Permit writers could consider the
approach taken in the SIP for converting human health criteria to AMELs (or another technically
defensible approach) to convert water quality objectives expressed as annual averages into AMELs.
A. Effluent Limitations – Discharge Point <Discharge Point Name>
1. Final Effluent Limitations – Discharge Point <Discharge Point Name>
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206
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
a. The DischargerPermittee shall maintain compliance with the following effluent
limitations at Discharge Point <Discharge Point Name>, with compliance
measured at Monitoring Location <Monitoring Location Name> as described in
the attached MRP:
Note that the table formats provided below depend on whether the facility is a POTW or a nonPOTW. Choose the table that fits the Discharger’s characteristics and delete the other table.
[NOTE: USE THE FOLLOWING TABLE TEMPLATE FOR POTW, NON-OCEAN
DISCHARGES]
Note: This table provides the format for effluent limitations based on secondary treatment
standards for POTWs. Water quality-based effluent limitations (developed from Basin Plan
requirements and CTR/NTR criteria applicable to the discharge) must be compared to
limitations based on secondary treatment standards to determine the most stringent applicable
limitations, and the final effluent limitations must be added to the table. Standard effluent
limitation bases have been developed to maintain consistency. Any limitations with limitation
bases that do not conform to the table should be listed in the numbered bullets below the table.
The table also shows for clerical reasons how mass limitations should be shown when
applicable. Mass limits are not required when the applicable standards or limitations are expressed in
terms of other units of measurement (e.g., concentration), or where limits in terms of mass are
infeasible because the mass of the pollutant discharged cannot be related to a measure of operation,
and permit conditions ensure that dilution will not be used as a substitute for treatment
Where the state uses its discretion to add both mass limits and concentration limits, that action is
more stringent than federal law, and a 13241 analysis would be required.
Table 6. Effluent Limitations
Biochemical
Oxygen Demand
5-day @ 20°C
Total Suspended
Solids
pH
<Parameter
Name>
Units
Average
Monthly
Average
Weekly
Effluent Limitations
Maximum
Instantaneous
Daily
Minimum
Version: 2005-1
Parameter
Instantaneous
Maximum
mg/L
lbs/day
mg/L
lbs/day
standard units
<concentration>
lbs/day
Add table footnotes as necessary.
b. Percent Removal: The average monthly percent removal of BOD 5-day 20°C
and total suspended solids shall not be less than 85 percent.
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207
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
c. <Include additional effluent limitations that do not conform to the limit
bases in the table above.>
d. Etc.
[NOTE: USE THE FOLLOWING TABLE TEMPLATE FOR NON-POTW, NON-OCEAN
DISCHARGES]
Note: Applicable technology-based (either from effluent guidelines or based on best professional
judgment or BPJ) and water quality-based effluent limitations (from the Basin Plan or CTR/NTR
criteria applicable to the discharge) must be developed. Standard effluent limitation bases have
been developed to maintain consistency. Any limitations with limitation bases that do not conform
to the table should be listed in the numbered bullets below the table. The table also shows for
clerical reasons how mass limitations should be shown when applicable. Mass limits are not required
when the applicable standards or limitations are expressed in terms of other units of measurement (e.g.,
concentration), or where limits in terms of mass are infeasible because the mass of the pollutant discharged
cannot be related to a measure of operation, and permit conditions ensure that dilution will not be used as a
substitute for treatment
Table 6. Effluent Limitations
Parameter
<Parameter Name>
<Parameter Name>
Units
Average
Monthly
Maximum
Instantaneous
Daily
Minimum
Instantaneous
Maximum
<concentration>
lbs/day
<concentration>
lbs/day
Version: 2005-1
b. <Include additional effluent limitations that do not conform to the limit
bases in the table above.>
c. Etc.
Comment [CVW20]: It seems a bit
confusing to have a separate table for
interim limits. Some constituents will
have both final and interim limits and
having this information in two places
does not seem logical. It is easier for the
permittee as well as Regional Water
Board staff to have the info in the same
table. Footnotes can be added to note
appropriate dates for interim and/or final
limits.
2. Interim Effluent Limitations
This subsection includes interim effluent limitations, if applicable, which apply to a specific
Discharge Point. The table of effluent limitations and other requirements are repeated for each
applicable Discharge Point unless the same limitations can be applied to multiple discharge points.
IMPORTANT! Any re-formatting of final and interim effluent limitations and requirements for
complex discharge situations must be done within Effluent Limitations, subsection A. Otherwise,
hyperlinks for the Table of Contents will be fouled.
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208
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
a. During the period beginning <Permit Effective Date or Interim Limitations
Begin Date> and ending on <Interim Limitations End Date>, the
DischargerPermittee shall maintain compliance with the following limitations at
<Discharge Point Name>, with compliance measured at Monitoring Location
<Monitory Location Name> as described in the attached MRP. These interim
effluent limitations shall apply in lieu of the corresponding final effluent limitations
specified for the same parameters during the time period indicated in this
provision.
Note: The table used for Interim Effluent Limitations should resemble the table used above under
Final Effluent Limitations for the same Discharge Point. Copy the appropriate table from the Final
Effluent Limitations section of the template (or use the table provided below) and adjust, as
necessary, for Interim Effluent Limitations. List all parameters for which Interim Effluent
Limitations have been developed in the same order that they appear in the table of Final Effluent
Limitations. Section VI.C.7., Compliance Schedules, must also be included in this Order if Interim
Effluent Limitations are provided. The table also shows for clerical reasons how mass limitations
should be shown if applicable.
If the Basin Plan allows a compliance schedule that exceeds 5 years, then the Order should not
include an end date for the Interim Effluent Limitation. The reason is that if the Order were not
renewed on time, the Interim Effluent Limitations would continue in effect until the permit is
reissued (through administrative continuation of the Order in accordance with title 40, Code of
Federal Regulations section 122.6).
Comment [CVW21]: See previous
comment.
Table 7. Interim Effluent Limitations
Parameter
<Parameter Name>
Average
Monthly
Instantaneous
Maximum
Version: 2005-1
<Parameter Name>
Units
Maximum
Instantaneous
Daily
Minimum
<concentration>
lbs/day
<concentration>
lbs/day
b. <Include additional interim effluent limitations that do not conform to the
limit bases in the table above.>
c. Etc.
19
209
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
B. Land Discharge Specifications – Discharge Point <Discharge Point Name>
This subsection defines specifications for non-NPDES discharges to on-site treatment, final, or
disposal ponds or other non-reclamation land applications. It also may include requirements
related to operational practices, when applicable. Some specifications (e.g., conductivity) may have
a basis for discharge specifications in the Basin Plan (e.g., increase over influent) that is not
accommodated by the table. These specifications should be included as separate entries following
the table or the table may be adjusted accordingly. Some requirements for the construction,
operation, and maintenance of these facilities/processes may be included as Special Provisions in
the Order. IF APPLICABLE, a separate section may also be included for Interim Land Discharge
Specifications. Optionally, separate WDRs may be issued to cover land discharge under State laws
provided that applicable fees have been paid. However, consolidated permits should be considered
where they would provide for more efficient permitting.
1. Beginning <Permit Effective Date or Interim Land Discharge Specification End
Date>, the Discharger shall maintain compliance with the following limitations at
<Discharge Point Name>, with compliance measured at Monitoring Location
<Monitoring Location Name> as described in the attached MRP.
Table 8. Land Discharge Specifications
Parameter
<Parameter Name>
<Parameter Name>
Units
Discharge Specifications
Average
Maximum
Average
Monthly
Daily
Annual
Version: 2005-1
<concentration>
lbs/day
<concentration>
lbs/day
20
210
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
C. Reclamation Specifications – Discharge Point <Discharge Point Name>
This subsection defines specifications for non-NPDES off-site uses of reclaimed or recycled
water. It also may include requirements related to operational practices, when applicable.
Some specifications (e.g., conductivity) may have a basis for discharge specifications in the
Basin Plan (e.g., increase over influent) that is not accommodated by the table. These
specifications should be included as separate entries following the table or the table may be
adjusted accordingly. Some requirements for the construction, operation, and maintenance of
these facilities/processes may be included as Special Provisions in the Order. IF
APPLICABLE, a separate section may also be included for Reclamation Specifications.
Optionally, separate WDRs may be issued for reclamation specifications under State laws
provided that applicable fees have been paid. However, consolidated permits should be
considered where they would provide for more efficient permitting.
1. Beginning <Permit Effective Date or Interim Reclamation Specification End
Date>, the Discharger shall maintain compliance with the following limitations at
<Discharge Point Location Name>, with compliance measured at Monitoring
Location <Monitoring Location Name> as described in the attached MRP.
Table 9. Reclamation Discharge Specifications
Parameter
<Parameter Name>
<Parameter Name>
Units
Discharge Specifications
Average
Maximum
Average
Monthly
Daily
Annual
<concentration>
lbs/day
<concentration>
lbs/day
Version: 2005-1
The table above shows for clerical reasons how mass limitations should be shown when applicable.
COMMENT: THE PERMIT TEMPLATE IS FOR NPDES PERMITS. NON-NPDES
ACTIVITIES SHOULD BE REGULATED BY OTHER REGULATORY MECHANISMS
BECAUSE DIFFERENT ENFORCEMENT CONDITIONS APPLY
V. RECEIVING WATER LIMITATIONS
This section includes surface and groundwater limitations specific to each Basin Plan.
A. Surface Water Limitations
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211
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
This subsection incorporates receiving water limitations for surface water based on water quality
objectives specified in the applicable Basin Plan or other Water Quality Control Plan. The
requirements below serve as examples only.
• Concentrations of dissolved oxygen (DO) to fall below X.X mg/L. The monthly median… etc
• Esthetically undesirable discoloration.
Receiving water limitations should be incorporated verbatim or with minor grammatical changes
from the applicable Basin Plan or other Water Quality Control Plan.
Receiving water limitations are based on water quality objectives contained in the Basin
Plan and are a required part of this Order. The discharge shall not cause the following
in <Surface Receiving Water>:
1. <Insert Surface Water Limitation>
2. Etc.
B. Groundwater Limitations
This subsection incorporates receiving water limitations for groundwater based on water quality
objectives specified in the applicable Basin Plan, and may be included if, in addition to a discharge to
surface water, there is a discharge affecting groundwater. If there is a likelihood that wastewater will
percolate and enter groundwater from percolation ponds, storage basins, reclamation areas, sludge
beds, etc., groundwater limitations should be included.
Formatted: Bullets and Numbering
Optionally, separate WDRs may be issued for groundwater limitations under state laws provided that
applicable fees have been paid. However, consolidated permits should be considered where they
would provide for more efficient permitting.
Version: 2005-1
Sample language is provided below:
•The discharge shall not cause the underlying groundwater to be degraded, to exceed water quality
objectives, unreasonably affect beneficial uses, or cause a condition of pollution or nuisance.
•The discharge, in combination with other sources, shall not cause underlying groundwater to contain
waste constituents in concentrations greater than background water quality, except for
<Constituent>. The incremental increase in <Constituent> over <Time Period> shall not exceed
<Allowable Increase>.
1. <Insert Groundwater Limitation>
2. Etc.
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212
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
regulated by other regulatory mechanisms because different enforcement conditions apply.
VI. PROVISIONS
This section includes both Standard Provisions and Special Provisions.
A. Standard Provisions
This subsection includes two types of Standard Provisions. The first set, included by reference to
Attachment D, are the required federal NPDES standard conditions from Part 122, which must
appear in every NPDES permit (i.e., they cannot be removed). In addition, a second set of standard
provisions is included in this section. This set of provisions includes Regional Water Board
standard provisions (if available) that may be modified as necessary by the Regional Water Board.
Standard provisions developed by the Regional Water Board should not be duplicative of federal
standard provisions of title 40, Code of Federal Regulations, section 122.41. However, under
authority provided by section 122.1(a)(5) and 123.25(a)(12), the Regional Water Board is not
precluded from omitting or modifying certain federal standard provisions to impose more stringent
requirements. The need for any more stringent requirements should be explained in Fact Sheet,
Section VII.
1. The DischargerPermittee shall comply with all Standard Provisions included in
Attachment D of this Order.
2. The DischargerPermittee shall comply with the following provisions:
a. <Include Regional Water Board-specific Standard Provisions>
Version: 2005-1
Note: The following provision is example language for Regional Water Board
consideration. The provision is intended to notify the Discharger Permittee that there are a
variety of enforcement remedies for noncompliance with the permit, which complement
Standard Provisions Attachment D, Enforcement Provisions VI.A.
b. Failure to comply with provisions or requirements of this Order, or violation of
other applicable laws or regulations governing discharges from this facility, may
subject the DischargerPermittee to administrative or civil liabilities, criminal
penalties, and/or other enforcement remedies to ensure compliance.
Additionally, certain violations may subject the DischargerPermittee to civil or
criminal enforcement from appropriate local, state, or federal law enforcement
entities.
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213
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
Note: The following provision is example language for Regional Water Board
consideration. The provision is a modification to provide a more stringent requirement in
lieu of the federal standard condition at title 40, Code of Federal Regulations, section
122.41(l)(6)(ii)(C). Rationale should be provided in Fact Sheet Section VII.A.
c.In the event the Discharger does not comply or will be unable to comply for any
reason, with any prohibition, <list limitation types as appropriate (e.g.,
maximum daily effluent limitation, hourly average effluent limitation)>, or
receiving water limitation of this Order, the Discharger shall notify the Regional
Water Board by telephone (xxx) xxx-xxxx within 24 hours of having knowledge of
such noncompliance, and shall confirm this notification in writing within five days,
unless the Regional Water Board waives confirmation. The written notification
shall state the nature, time, duration, and cause of noncompliance, and shall
describe the measures being taken to remedy the current noncompliance and,
prevent recurrence including, where applicable, a schedule of implementation.
Other noncompliance requires written notification as above at the time of the
normal monitoring report.
d.Prior to making any change in the point of discharge, place of use, or purpose of
use of treated wastewater that results in a decrease of flow in any portion of a
watercourse, the Discharger must file a petition with the State Water Board,
Division of Water Rights, and receive approval for such a change. (Wat. Code §
1211.)
c. .Etc.
Comment [MO22]: This new
language creates extra burden and a
disincentive for POTWs to deliver
recycled water, which is against State
goals.
B. Monitoring and Reporting Program (MRP) Requirements
This subsection references the Monitoring and Reporting Program found in Attachment E of the
Order.
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Version: 2005-1
Comment: This provision is duplicative with Standard Provision V.E.1, which requires notification within 24
hours of noncompliance that may endanger health or the environment. Having duplicate provisions in permits
exposes the Permittee to excess liability, for being cited twice under different permit provisions for the same
incident. Standard Provision V.E.1 adequately addresses the need for immediate notification, by requiring it when
there is noncompliance that may endanger health or the environment. For instances of noncompliance that would
not endanger health or the environment, no justification has been provided as to why immediate notification
would be necessary. Immediate reporting, followed by written reports five days letters, requires staff time to
process. Such reporting should not be required if there is no reasonable need for it. If there is no endangerment of
health or the environment, it should be acceptable to handle reporting through standard reporting such as monthly
reports. Section VI.A.2.c of the permit template is also in direct conflict with Standard Provision V.H, which
states that all instances of noncompliance not reported under Standard Provisions V.C, V.D, and V.E be submitted
at the time monitoring reports are submitted.
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
The DischargerPermittee shall comply with the MRP, and future revisions thereto, in
Attachment E of this Order.
C. Special Provisions
1. Reopener Provisions
This subsection includes provisions that specify conditions under which the Regional Water Board
may reopen the Order. Such conditions may include, for example, completion of a TMDL or an
effluent water quality study.
Include the following reopener if special monitoring conditions are included in the
Order for the detection of reportable priority pollutants. (See SIP section 2.4.5.1)
a. This Order may be reopened for modification, or revocation and reissuance,
according to 40 C.F.R. §§122.62 and 122.63 and as a result of the detection of a
reportable priority pollutant generated by special conditions included in this
Order. These special conditions may be, but are not limited to, fish tissue
sampling, whole effluent toxicity, monitoring requirements on internal waste
stream(s), and monitoring for surrogate parameters. Additional requirements
may be included in this Order as a result of the special condition monitoring data.
b. Etc.
2. Special Studies, Technical Reports and Additional Monitoring Requirements
Version: 2005-1
This subsection includes any requirements for special studies (i.e., mixing zone or dilution studies,
sediment monitoring). These studies may be required by the Order, or may be triggered by
exceedance of an effluent limitation or other threshold. In some cases, the studies may be optional
(e.g., dilution studies). This subsection also includes any special monitoring requirements outside
the requirements of the Monitoring and Reporting Program. For example, additional monitoring
may include a study of CTR constituents discharged from a new discharge point that has been
added to the facility or participation in Regional monitoring programs. A rationale, which meets
the requirements of Water Code section 13267, supporting the need for these special provisions
should be included in the Fact Sheet.
Special provisions may be included in the Order to require the gathering of “evidence” to determine
whether a constituent of concern is present in the effluent at levels above a calculated effluent
limitation. Such additional evidence is required for a PMP trigger. See SIP section 2.4.5 for
descriptions of evidence used with triggers from samples reported as DNQ or ND.
a. Toxicity Reduction Requirements
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
Language from the SIP (Section 4) is provided in the first paragraph below as a placeholder
while public scoping and policy is developed for TRE and WET issues. The Regional Water
Board might elect to replace the language with clarified requirements. Extended example
language from the Central Valley Regional Water Board is provided following the referenced
language from the SIP below.
If the discharge causes or contributes to chronic toxicity in the receiving water, a
Toxicity Reduction Evaluation (TRE) shall be required as defined in Attachment
A. The Regional Water Board shall require the DischargerPermittee to conduct a
TRE if repeated tests reveal toxicity as a result of waste discharge under this
Order. The DischargerPermittee shall take all reasonable steps to control toxicity
once the source of toxicity is identified. Failure to conduct the required toxicity
tests or a TRE <within a designated period>within a time period specified in
the Permittee’s TRE Work Plan shall may result in the establishment of effluent
limitations for chronic toxicity under this Order and/or appropriate enforcement
action.
Example alternative language from the Central Valley Regional Water Board follows.
Comment [MO23]: Time periods for
accelerated monitoring vary significantly
from permit to permit Therefore, the
accelerated monitoring and TRE work
should be specified in a Work Plan to be
prepared by the Permittee.
Comment: Regional Water Boards have their own language for chronic toxicity. We
see no reason to highlight the Central Valley approach.
.Toxicity Reduction Evaluation (TRE) Work Plan. Within 90 days of the
effective date of this Order, the Discharger shall submit to the Regional Water
Board a TRE Work Plan for approval by the Executive Officer. The TRE
Work Plan shall outline the procedures for identifying the source(s) of, and
reducing or eliminating effluent toxicity. The TRE Work Plan must be
developed in accordance with USEPA guidance <provide reference
Version: 2005-1
Chronic Whole Effluent Toxicity. For compliance with the Basin Plan’s
narrative toxicity objective, this Order requires the Discharger to conduct chronic
whole effluent toxicity (WET) testing, as specified in MRP section V.
Furthermore, this Provision requires the Discharger to investigate the causes of,
and identify corrective actions to reduce or eliminate effluent toxicity. If the
discharge exceeds the numeric toxicity monitoring trigger during accelerated
monitoring established in this Provision, the Discharger is required to initiate a
Toxicity Reduction Evaluation (TRE) in accordance with an approved TRE Work
Plan, and take actions to mitigate the impact of the discharge and prevent
recurrence of toxicity. A TRE is a site-specific study conducted in a stepwise
process to identify the source(s) of toxicity and the effective control measures for
effluent toxicity. TREs are designed to identify the causative agents and sources
of whole effluent toxicity, evaluate the effectiveness of the toxicity control options,
and confirm the reduction in effluent toxicity. This Provision includes
requirements for the Discharger to develop and submit a TRE Work Plan and
includes procedures for accelerated chronic toxicity monitoring and TRE
initiation.
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216
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
location> and be of adequate detail to allow the Discharger to immediately
initiate a TRE as required in this Provision.
.Accelerated Monitoring and TRE Initiation. When the numeric toxicity
monitoring trigger is exceeded during regular chronic toxicity monitoring, and
the testing meets all test acceptability criteria, the Discharger shall initiate
accelerated monitoring as required in the Accelerated Monitoring
Specifications. The Discharger shall initiate a TRE to address effluent toxicity
if any WET testing results exceed the numeric toxicity monitoring trigger
during accelerated monitoring.
.Numeric Toxicity Monitoring Trigger. The numeric toxicity monitoring trigger
to initiate a TRE is > 1 TUC (where TUC = 100/NOEC). The monitoring trigger
is not an effluent limitation; it is the toxicity threshold at which the Discharger
is required to begin accelerated monitoring and initiate a TRE.
.Accelerated Monitoring Specifications. If the numeric toxicity monitoring
trigger is exceeded during regular chronic toxicity testing, the Discharger shall
initiate accelerated monitoring within 14-days of notification by the laboratory
of the exceedance. Accelerated monitoring shall consist of four (4) chronic
toxicity tests conducted once every two weeks using the species that
exhibited toxicity. The following protocol shall be used for accelerated
monitoring and TRE initiation:
(a) If the results of four (4) consecutive accelerated monitoring tests do not
exceed the monitoring trigger, the Discharger may cease accelerated
monitoring and resume regular chronic toxicity monitoring. However,
notwithstanding the accelerated monitoring results, if there is adequate
evidence of a pattern of effluent toxicity, the Executive Officer may require
that the Discharger initiate a TRE.
Version: 2005-1
(b) If the source(s) of the toxicity is easily identified (e.g., temporary plant
upset), the Discharger shall make necessary corrections to the facility and
shall continue accelerated monitoring until four (4) consecutive
accelerated tests do not exceed the monitoring trigger. Upon confirmation
that the effluent toxicity has been removed, the Discharger may cease
accelerated monitoring and resume regular chronic toxicity monitoring.
(c) If the result of any accelerated toxicity test exceeds the monitoring trigger,
the Discharger shall cease accelerated monitoring and begin a TRE to
investigate the cause(s) of, and identify corrective actions to reduce or
eliminate effluent toxicity. Within thirty (30) days of notification by the
laboratory of any test result exceeding the monitoring trigger during
accelerated monitoring, the Discharger shall submit a TRE Action Plan to
the Regional Water Board including, at minimum:
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217
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
(1) Specific actions the Discharger will take to investigate and identify the
cause(s) of toxicity, including a TRE WET monitoring schedule;
(2) Specific actions the Discharger will take to mitigate the impact of the
discharge and prevent the recurrence of toxicity; and
(3) A schedule for these actions.
b. Etc.
3. Best Management Practices and Pollution Prevention
This subsection includes requirements for Best Management Practices to control the discharge of
pollutants when numeric limitations are infeasible, for storm water discharges associated with
industrial activity, or other Best Management and Pollution Prevention requirements, if applicable.
Water CodesSection 13263.3: The permit findings must indicate the bases on which a pollution
prevention plan is required. Section 13263.3(d) lists four possible bases. Justification, based on the
possible bases, should be provided in the Fact Sheet.
a. Pollutant Minimization Program
Version: 2005-1
The DischargerPermittee shall develop and conduct a Pollutant Minimization
Program (PMP) as further described below when there is evidence (e.g., sample
results reported as DNQ when the effluent limitation is less than the MDL,
sample results from analytical methods more sensitive than those methods
required by this Order, presence of whole effluent toxicity, health advisories for
fish consumption, results of benthic or aquatic organism tissue sampling) that a
priority pollutant is present in the effluent above an effluent limitation and either:
i. A sample result is reported as DNQ and the effluent limitation is less than the
RL; or
ii. A sample result is reported as ND and the effluent limitation is less than the
MDL, using definitions described in Attachment A and reporting protocols
described in MRP section X.B.4.
The PMP shall include, but not be limited to, the following actions and submittals
acceptable to the Regional Water Board:
The annual review and semi-annual and quarterly monitoring cited below is from SIP
section 2.4.5.1. If these frequencies are not appropriate, consider other justifiable
frequencies.
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
i. An annual review and semi-annual monitoring of potential sources of the
reportable priority pollutant(s), which may include fish tissue monitoring and
other bio-uptake sampling;
ii. Quarterly monitoring for the reportable priority pollutant(s) in the influent to the
wastewater treatment system;
iii. Submittal of a control strategy designed to proceed toward the goal of
maintaining concentrations of the reportable priority pollutant(s) in the effluent
at or below the effluent limitation;
iv. Implementation Identification of appropriate cost-effective control measures
for the reportable priority pollutant(s), consistent with the control strategy; and
v. An annual status report that shall be sent to the Regional Water Board
including:
1. All PMP monitoring results for the previous year;
2. A list of potential sources of the reportable priority pollutant(s);
3. A summary of all actions undertaken pursuant to the control strategy; and
4. A description of actions to be taken in the following year.
4. Construction, Operation and Maintenance Specifications
Version: 2005-1
This subsection includes requirements for the construction, operation or maintenance of facilities;
processes; disposal sites; waste management; etc, if applicable to a site. There may be many special
conditions for different processes or activities conducted at the site (e.g., solids/sludge handling and
disposal, spills, leaks, disposal to ponds, waste disposal). With certain exceptions described in
Water Code section 13360, WDRs are restricted from specifying the design, location, type of
construction, or particular manner in which compliance may be had with requirements in this
Order.
a. <Include Construction, Operation, and Maintenance Specifications>
b. Etc.
5. Special Provisions for Municipal Facilities (POTWs Only)
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
This subsection includes special provisions that are applicable only to municipal facilities (POTWs),
including, for example:
•
•
•
•
Sludge Disposal Requirements.
Pretreatment Program.
Combined Sewer Overflows (CSOs).
Sanitary Sewer Overflows/Collection Systems.
Any similar requirements for non-municipal facilities should be included in section VI. 4
Construction, Operation, and Maintenance Specifications or, if more appropriate, in VI. 6. Other
Special Provisions.
a. <Include Municipal Special Provision (e.g., pretreatment program, sludge
disposal)>
The following requirement is only needed for POTWs. If not applicable, the requirement
and the definition for satellite collection systems in Attachment A may be removed.
Version: 2005-1
The Discharger’s collection system (but not satellite systems) is part of the system that is
subject to this Order. As such, the Discharger must properly operate and maintain its any
collection system under its ownership or operational control (40 C.F.R. §
122.41(e)Attachment D, Standard Provisions - Permit Compliance, subsection I.D). The
Discharger must report any non-compliance (40 C.F.R. § 122.41(l)(6) and (7) Attachment
D, Standard Provision - Reporting, subsections V.E.1 and V.E.2) and mitigate any
discharge from the Permitee’s collection system in violation of this Order (40 C.F.R. §
122.41(d)). See the Order at Standard Provision VI.A.2.<c> and Attachment D,
subsections I.D, V.E, V.H, and I.C. Attachment D, Standard Provisions - Permit
Compliance, subsection I.C). The General Waste Discharge Requirements for Collection
System Agencies (Order No. 2006-0003 DWQ) contains requirements for operation and
maintenance of collection systems and for reporting and mitigating sanitary sewer
overflows. While the Discharger must comply with both the General Waste Discharge
Requirements for Collection System Agencies (General Collection System WDR) and
this Order, the General Collection System WDR more clearly and specifically stipulates
requirements for operation and maintenance and for reporting and mitigating sanitary
sewer overflows. Implementation of the General Collection System WDR requirements
for proper operation and maintenance and mitigation of spills will satisfy the
corresponding federal NPDES requirements specified in this Order. Following reporting
requirements in the General Collection System WDR will satisfy NPDES reporting
requirements for sewage spills.
Comment: USEPA has agreed to this language, which incorporates reference to the new statewide SSO
WDR. This was an issue in the EBDA permit (see comments above) and EPA now cites this language in
comment letters on other permits.
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
b.
c. Etc.
6. Other Special Provisions
7. Compliance Schedules
This subsection includes compliance schedule requirements, if authorized under applicable water
quality control plans. Note that provisions of the SIP for a TMDL-based WLA were not approved
by USEPA to allow compliance schedules for a CTR-based effluent limitation beyond 10 years
from the effective date of the SIP, or May 18, 2010. Compliance schedules should clearly indicate
when interim effluent limitations are no longer applicable.
This subsection should include a compilation of milestone schedule dates for achievement of final
effluent limitations and/or development of special studies, technical reports, special monitoring,
BMPs, PPP, PMP, construction, O&M specifications, pretreatment program, sludge disposal, etc.
Since the requirements for these activities may be specified in other subsections, they should be
given clear titles for easy cross-reference.
Comment: This section should be removed because it is a potential source of errors. If a
permittee is relying solely on this section, and something is left out, then the permittee would
still be liable for an error by a permit writer and that does not seem appropriate.
a. <Include Compliance Schedule>
b. Etc.
Version: 2005-1
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221
DISCHARGER
FACILITY NAME
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
VII.
NPDES NO. CAXXXXXXX
Comment [MO24]: Tri-TAC believes
it is inappropriate to include a compliance
determination section in the permit, since
the audience of the permit is the
permittee, not the regulatory agency.
Compliance direction to regulatory
agencies should occur through the State's
Enforcement Policy.
COMPLIANCE DETERMINATION
This section specifies how a facility and the Regional Water Board will determine compliance
with effluent limitations or other permit requirements, as necessary. The compliance
determination language is undergoing revisions that will be forthcoming.
Compliance with the effluent limitations contained in section IV of this Order will be determined
as specified below:
A.General.
Compliance with effluent limitations for priority pollutants shall be determined using
sample reporting protocols defined in the MRP and Attachment A <also modify to
reference any other attachments defining MLs> of this Order. For purposes of
reporting and administrative enforcement by the Regional and State Water Boards, the
Discharger shall be deemed out of compliance with effluent limitations if the
concentration of the priority pollutant in the monitoring sample is greater than the
effluent limitation and greater than or equal to the reporting level (RL).
The SIP at section 2.4.5 extends the multiple sample data procedure (similar to the California
Ocean Plan) to AMELs when there are NDs and DNQs in the data set. The Regional Water
Board may justify extending the procedure to AWELs or MDELs given consideration to MRP
requirements of the individual permit.
B.Multiple Sample Data.
Version: 2005-1
When determining compliance with an AMEL <, AWEL, or MDEL> for priority pollutants
and more than one sample result is available, the Discharger shall compute the
arithmetic mean unless the data set contains one or more reported determinations of
“Detected, but Not Quantified” (DNQ) or “Not Detected” (ND). In those cases, the
Discharger shall compute the median in place of the arithmetic mean in accordance with
the following procedure:
1.The data set shall be ranked from low to high, ranking the reported ND determinations
lowest, DNQ determinations next, followed by quantified values (if any). The order
of the individual ND or DNQ determinations is unimportant.
1.The median value of the data set shall be determined. If the data set has an odd
number of data points, then the median is the middle value. If the data set has an
even number of data points, then the median is the average of the two values
around the middle unless one or both of the points are ND or DNQ, in which case
the median value shall be the lower of the two data points where DNQ is lower than
a value and ND is lower than DNQ.
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
C. Average Monthly Effluent Limitation (AMEL).
If the average (or when applicable, the median determined by subsection B above for
multiple sample data) of daily discharges over a calendar month exceeds the AMEL for
a given parameter, this will represent a single violation, though the Discharger will be
considered out of compliance for each day of that month for that parameter (e.g.,
resulting in 31 days of non-compliance in a 31-day month). If only a single sample is
taken during the calendar month and the analytical result for that sample exceeds the
AMEL, the Discharger will be considered out of compliance for that calendar month.
The Discharger will only be considered out of compliance for days when the discharge
occurs. For any one calendar month during which no sample (daily discharge) is taken,
no compliance determination can be made for that calendar month.
D. Average Weekly Effluent Limitation (AWEL).
If the average <(or when applicable, the median determined by subsection B above for
multiple sample data)> of daily discharges over a calendar week exceeds the AWEL for
a given parameter, this will represent a single violation, though the Discharger will be
considered out of compliance for each day of that week for that parameter, resulting in 7
days of non-compliance. If only a single sample is taken during the calendar week and
the analytical result for that sample exceeds the AWEL, the Discharger will be
considered out of compliance for that calendar week. The Discharger will only be
considered out of compliance for days when the discharge occurs. For any one
calendar week during which no sample (daily discharge) is taken, no compliance
determination can be made for that calendar week.
E. Maximum Daily Effluent Limitation (MDEL).
Version: 2005-1
If a daily discharge <(or when applicable, the median determined by subsection B above
for multiple sample data of a daily discharge)> exceeds the MDEL for a given
parameter, the Discharger will be considered out of compliance for that parameter for
that 1 day only within the reporting period. For any 1 day during which no sample is
taken, no compliance determination can be made for that day.
F. Instantaneous Minimum Effluent Limitation.
If the analytical result of a single grab sample is lower than the instantaneous minimum
effluent limitation for a parameter, the Discharger will be considered out of compliance
for that parameter for that single sample. Non-compliance for each sample will be
considered separately (e.g., the results of two grab samples taken within a calendar day
that both are lower than the instantaneous minimum effluent limitation would result in
two instances of non-compliance with the instantaneous minimum effluent limitation).
G. Instantaneous Maximum Effluent Limitation.
If the analytical result of a single grab sample is higher than the instantaneous
maximum effluent limitation for a parameter, the Discharger will be considered out of
33
223
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
compliance for that parameter for that single sample. Non-compliance for each sample
will be considered separately (e.g., the results of two grab samples taken within a
calendar day that both exceed the instantaneous maximum effluent limitation would
result in two instances of non-compliance with the instantaneous maximum effluent
limitation).
Insert other descriptions for compliance determination as needed to implement Basin Plan
Objectives.
Comment: USEPA Region IX has commented to at least one Regional Water Board that it is
inappropriate to include blanket statements within permits that attempt to predetermine
violations of the Clean Water Act or the NPDES permit. 1 The compliance determination
language proposed improperly prejudges where an exceedance equates to permit noncompliance and predetermines how many days of non-compliance will be found. This
prejudgment ignores potential defenses to permit exceedances. Further, the date of the
sample generally only indicates a violation on the date of the data collection and other
evidence is required to demonstrate that violations occurred on more than one day. 2
Specifically, we believe that the use of the phrase “will be considered out of compliance”
(specifically the word “will”) for an alleged violation prejudges whether a violation has occurred
or not since there may be an affirmative defense for the exceedance. We believe the word
“may” is a better choice since it indicates that enforcement discretion exists. We also believe
that other changes may be appropriate for the language to be consistent with the State Board’s
Enforcement Policy.
However, if the State Water Board still ends up keeping the Compliance Determination
Language, then we request that language changes be made as follows for the average
monthly effluent limitation, and equivalent changes be made for the average weekly effluent
limitation, the maximum daily effluent limitation, the instantaneous minimum effluent limitation,
and the instantaneous maximum effluent limitation:
1
2
3
Version: 2005-1
Inasmuch as these sections of the permit templates deal with compliance determination
procedures for non-daily limits, the Districts believe that, if not removed entirely, the proposed
language should be revised to explicitly distinguish between procedures for discretionary and
mandatory penalties in accordance with state and federal law. If a Regional Board chooses to
assess discretionary administrative civil liability for violations of a monthly average it must
determine whether an exceedance of a violation of a monthly average represents thirty days of
violations for a 30-day month in order to be consistent with the Clean Water Act and whether
mitigations factors should apply. 3 Because these are policy considerations, and not regulatory
requirements, this language should not be included in a discharge permit.
Formatted: Not Highlight
See letter from EPA commenting on Tentative Order No. R9-2005-0136 and R9-2005-0137 (Aug. 3, 2005).
SWRCB SB709 Questions & Answers Document at p. 13, Q.35 (April 17, 2001).
SB 709 AND SB 2165 QUESTIONS AND ANSWERS, April 17, 2001, State Water Resources Control Board; Water Code
Section 13385(e); 33 U.S.C. 1319(d).
34
224
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
PERMITTEE NAME
FACILITY NAME
NPDES NO. CAXXXXXXX
Comment [MT25]: Other alternative
language can be found in Order R9-2006002. This was written by the San Diego
Regional Counsel and approved by that
Board.
Section III.C
If the The average (or when applicable, the median determined by subsection B above for
multiple same data) of daily discharges over a calendar month will be reviewed to determine
whether the result exceeds the AMEL for a given parameter,. If exceeded, this will represent a
single alleged violation, and the Regional Board will consider appropriate informal or formal
enforcement actions in accordance with the State Water Resources Control Board’s Water
Quality Enforcement Policy. If the Regional Board chooses to assess discretionary administrative
civil liability for violations of an AMEL, though the discharger will may be considered out of
compliance for each day of that month for that parameter (e.g., resulting in 31 days of noncompliance in a 31-day month). If only a single sample is taken during the calendar month and
the analytical result for that sample exceeds the AMEL, the discharger will may be considered out
of compliance for that calendar month. In addition, under the Water Code, a single operational
upset in a wastewater treatment unit that treats wastewater using a biological treatment process
shall be treated as a single violation, even if the operational upset results in violations of more
than one effluent limitation and the violations continue for a period of more than one day. The
Discharger will may only be considered out of compliance for days when the discharge occurs.
For any one calendar month during which no sample (daily discharge) is taken, no compliance
determination can be made for that calendar month.
Version: 2005-1
35
225
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
ATTACHMENT A – DEFINITIONS
Comments: Many of the definitions below are not in the SIP, or are SIP definitions that were edited.
Also, the language removed above is significantly more confusing than it is useful.
Include as necessary, any additional standardized definitions from the Basin Plan and other
applicable water quality control plans.
Comment [CVW26]: Consider using
a different designation than µ for this. It
could lead to some confusion since nearly
all priority pollutant WQOs and
WQBELs will be expressed as µg/L.
Arithmetic Mean (μ), also called the average, is the sum of measured values divided by the
number of samples. For ambient water concentrations, the arithmetic mean is calculated as
follows:
Arithmetic mean = μ = Σx / n
where: Σx is the sum of the measured ambient water
concentrations, and n is the number of
samples.
Average Monthly Effluent Limitation (AMEL): the highest allowable average of daily
discharges over a calendar month, calculated as the sum of all daily discharges measured
during a calendar month divided by the number of daily discharges measured during that
month.
Average Weekly Effluent Limitation (AWEL): the highest allowable average of daily
discharges over a calendar week (Sunday through Saturday), calculated as the sum of all daily
discharges measured during a calendar week divided by the number of daily discharges
measured during that week.
Comment [MO27]: Permitees need
flexibility to establish consistent weekly
schedules. Creating a brand new
approach is inappropriate.
Bioaccumulative pollutants are those substances taken up by an organism from its
surrounding medium through gill membranes, epithelial tissue, or from food and subsequently
concentrated and retained in the body of the organism.
Carcinogenic pollutants are substances that are known to cause cancer in living organisms.
Coefficient of Variation (CV) is a measure of the data variability and is calculated as the
estimated standard deviation divided by the arithmetic mean of the observed values.
Daily Discharge: Daily Discharge is defined as either: (1) the unweighted arithmetic mean
measurement of the constituent over the day for a constituent with limitations expressed in
other units of measurement (e.g., concentration)., generally expressed as either concentration,
mass, or flow.
The daily discharge may be determined by the analytical results of a composite sample taken
over the course of one day (a calendar day or other 24-hour period defined as a day) or by the
arithmetic mean of analytical results from one or more grab samples taken over the course of
the day.
For composite sampling, if 1 day is defined as a 24-hour period other than a calendar day, the
analytical result for the 24-hour period will be considered as the result for the calendar day in
which the 24-hour period ends.
Attachment A – Definitions (Version 2006-1B)
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
Detected, but Not Quantified (DNQ) are those sample results less than the RL, but greater
than or equal to the laboratory’s MDL.
Dilution Credit is the amount of dilution granted to a discharge in the calculation of a water
quality-based effluent limitation, based on the allowance of a specified mixing zone. It is
calculated from the dilution ratio or determined through conducting a mixing zone study or
modeling of the discharge and receiving water.
Effluent Concentration Allowance (ECA) is a value derived from the water quality
criterion/objective, dilution credit, and ambient background concentration that is used, in
conjunction with the coefficient of variation for the effluent monitoring data, to calculate a longterm average (LTA) discharge concentration. The ECA has the same meaning as waste load
allocation (WLA) as used in U.S. EPA guidance (Technical Support Document For Water
Quality-based Toxics Control, March 1991, second printing, EPA/505/2-90-001).
Enclosed Bays means indentations along the coast that enclose an area of oceanic water
within distinct headlands or harbor works. Enclosed bays include all bays where the narrowest
distance between the headlands or outermost harbor works is less than 75 percent of the
greatest dimension of the enclosed portion of the bay. Enclosed bays include, but are not
limited to, Humboldt Bay, Bodega Harbor, Tomales Bay, Drake’s Estero, San Francisco Bay,
Morro Bay, Los Angeles-Long Beach Harbor, Upper and Lower Newport Bay, Mission Bay,
and San Diego Bay. Enclosed bays do not include inland surface waters or ocean waters.
Estimated Chemical Concentration is the estimated chemical concentration that results from
the confirmed detection of the substance by the analytical method below the ML value.
Estuaries means waters, including coastal lagoons, located at the mouths of streams that
serve as areas of mixing for fresh and ocean waters. Coastal lagoons and mouths of streams
that are temporarily separated from the ocean by sandbars shall be considered estuaries.
Estuarine waters shall be considered to extend from a bay or the open ocean to a point
upstream where there is no significant mixing of fresh water and seawater. Estuarine waters
included, but are not limited to, the Sacramento-San Joaquin Delta, as defined in Water Code
section 12220, Suisun Bay, Carquinez Strait downstream to the Carquinez Bridge, and
appropriate areas of the Smith, Mad, Eel, Noyo, Russian, Klamath, San Diego, and Otay
rivers. Estuaries do not include inland surface waters or ocean waters.
Inland Surface Waters are all surface waters of the State that do not include the ocean,
enclosed bays, or estuaries.
Instantaneous Maximum Effluent Limitation: the highest allowable value for any single grab
sample or aliquot (i.e., each grab sample or aliquot is independently compared to the
instantaneous maximum limitation).
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Instantaneous Minimum Effluent Limitation: the lowest allowable value for any single grab
sample or aliquot (i.e., each grab sample or aliquot is independently compared to the
instantaneous minimum limitation).
Maximum Daily Effluent Limitation (MDEL) means the highest allowable daily discharge of a
pollutant, over a calendar day (or 24-hour period). For pollutants with limitations expressed in
units of mass, the daily discharge is calculated as the total mass of the pollutant discharged
over the day. For pollutants with limitations expressed in other units of measurement, the daily
discharge is calculated as the arithmetic mean measurement of the pollutant over the day.
Median is the middle measurement in a set of data. The median of a set of data is found by
first arranging the measurements in order of magnitude (either increasing or decreasing order).
If the number of measurements (n) is odd, then the median = X(n+1)/2. If n is even, then the
median = (Xn/2 + X(n/2)+1)/2 (i.e., the midpoint between the n/2 and n/2+1).
Comment [MT28]: For POTW, this is
the exception, not the rule.
Method Detection Limit (MDL) is the minimum concentration of a substance that can be
measured and reported with 99 percent confidence that the analyte concentration is greater
than zero, as defined in title 40 of the Code of Federal Regulations, Part 136, Attachment B,
revised as of July 3, 1999.
Minimum Level (ML) is the concentration at which the entire analytical system must give a
recognizable signal and acceptable calibration point. The ML is the concentration in a sample
that is equivalent to the concentration of the lowest calibration standard analyzed by a specific
analytical procedure, assuming that all the method specified sample weights, volumes, and
processing steps have been followed.
Mixing Zone is a limited volume of receiving water that is allocated for mixing with a
wastewater discharge where water quality criteria can be exceeded without causing adverse
effects to the overall water body.
Not Detected (ND) are those sample results less than the laboratory’s MDL.
Ocean Waters are the territorial marine waters of the State as defined by California law to the
extent these waters are outside of enclosed bays, estuaries, and coastal lagoons. Discharges
to ocean waters are regulated in accordance with the State Water Board’s California Ocean
Plan.
Persistent pollutants are substances for which degradation or decomposition in the
environment is nonexistent or very slow.
Pollutant Minimization Program (PMP) means waste minimization and pollution prevention
actions that include, but are not limited to, product substitution, waste stream recycling,
alternative waste management methods, and education of the public and businesses. The
goal of the PMP shall be to reduce all potential sources of a priority pollutant(s) through
pollutant minimization (control) strategies, including pollution prevention measures as
appropriate, to maintain the effluent concentration at or below the water quality-based effluent
limitation. Pollution prevention measures may be particularly appropriate for persistent
bioaccumulative priority pollutants where there is evidence that beneficial uses are being
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impacted. The Regional Water Board may consider cost-effectiveness when establishing the
requirements of a PMP. The completion and implementation of a Pollution Prevention Plan, if
required pursuant to Water Code section 13263.3(d), shall be considered to fulfill the PMP
requirements.
Pollution Prevention means any action that causes a net reduction in the use or generation
of a hazardous substance or other pollutant that is discharged into water and includes, but is
not limited to, input change, operational improvement, production process change, and product
reformulation (as defined in Water Code section 13263.3). Pollution prevention does not
include actions that merely shift a pollutant in wastewater from one environmental medium to
another environmental medium, unless clear environmental benefits of such an approach are
identified to the satisfaction of the State or Regional Water Board.
Reporting Level (RL) is the ML (and its associated analytical method) chosen established by
the Dischargerlaboratory, and used by the Permittee for reporting and compliance
determination from the MLs included in this Order. The MLs included in this Order correspond
to approved analytical methods for reporting a sample result that are selected by the Regional
Water Board either from Appendix 4 of the SIP in accordance with section 2.4.2 of the SIP or
established in accordance with section 2.4.3 of the SIP. The ML is based on the proper
application of method-based analytical procedures for sample preparation and the absence of
any matrix interferences. Other factors may be applied to the ML depending on the specific
sample preparation steps employed. For example, the treatment typically applied in cases
where there are matrix-effects is to dilute the sample or sample aliquot by a factor of ten. In
such cases, this additional factor must be applied to the ML in the computation of the RL.
Satellite Collection System is the portion, if any, of a sanitary sewer system owned or
operated by a different public agency than the agency that owns and operates the wastewater
treatment facility thatto which athe respective satellite collection sanitary sewer system is
tributary to.
Comment [MO29]: The laboratory
establishes the ML, not the Permittee.
The Permittee can specified a desired ML
to the laboratory, but ultimately the
laboratory must defend the scientific
accuracy of an ML.
Comment [MO30]: This sentence
doesn't make sense. The State Water
Board should not be providing directions
to analytical laboratories that are already
regulated under other requirements.
Source of Drinking Water is any water designated as municipal or domestic supply (MUN) in
a Regional Water Board Basin Plan.
Standard Deviation (σ) is a measure of variability that is calculated as follows:
σ
=
(∑[(x - μ)2]/(n – 1))0.5
where:
x
is the observed value;
μ
is the arithmetic mean of the observed values; and
n
is the number of samples.
Toxicity Reduction Evaluation (TRE) is a study conducted in a step-wise process designed
to identify the causative agents of effluent or ambient toxicity, isolate the sources of toxicity,
evaluate the effectiveness of toxicity control options, and then confirm the reduction in toxicity.
The first steps of the TRE consist of the collection of data relevant to the toxicity, including
additional toxicity testing, and an evaluation of facility operations and maintenance practices,
and best management practices. A Toxicity Identification Evaluation (TIE) may be required as
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part of the TRE, if appropriate. (A TIE is a set of procedures to identify the specific chemical(s)
responsible for toxicity. These procedures are performed in three phases (characterization,
identification, and confirmation) using aquatic organism toxicity tests.)
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ATTACHMENT B – MAP
Attachment B –Map (Version 2006-1B)
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ATTACHMENT C – FLOW SCHEMATIC
Attachment C – Wastewater Flow Schematic (Version 2006-1B)
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ATTACHMENT D –STANDARD PROVISIONS
I. STANDARD PROVISIONS – PERMIT COMPLIANCE
A. Duty to Comply
1. The DischargerPermittee must comply with all of the conditions of this Order. Any
noncompliance constitutes a violation of the Clean Water Act (CWA) and the
California Water Code and is grounds for enforcement action, for permit termination,
revocation and reissuance, or modification; or denial of a permit renewal application.
(40 C.F.R. § 122.41(a).)
Comment [CVW31]: 40 CFR uses
the term “Permittee”. Why would you
change this to discharger? Please change
back.
2. The DischargerPermittee shall comply with effluent standards or prohibitions
established under Section 307(a) of the CWA for toxic pollutants and with standards
for sewage sludge use or disposal established under Section 405(d) of the CWA
within the time provided in the regulations that establish these standards or
prohibitions, even if this Order has not yet been modified to incorporate the
requirement. (40 C.F.R. § 122.41(a)(1).)
B. Need to Halt or Reduce Activity Not a Defense
It shall not be a defense for a DischargerPermittee in an enforcement action that it
would have been necessary to halt or reduce the permitted activity in order to maintain
compliance with the conditions of this Order. (40 C.F.R. § 122.41(c).)
C. Duty to Mitigate
The DischargerPermittee shall take all reasonable steps to minimize or prevent any
discharge or sludge use or disposal in violation of this Order that has a reasonable
likelihood of adversely affecting human health or the environment. (40 C.F.R. §
122.41(d).)
D. Proper Operation and Maintenance
The DischargerPermittee shall at all times properly operate and maintain all facilities
and systems of treatment and control (and related appurtenances) which are installed or
used by the DischargerPermittee to achieve compliance with the conditions of this
Order. Proper operation and maintenance also includes adequate laboratory controls
and appropriate quality assurance procedures. This provision requires the operation of
backup or auxiliary facilities or similar systems that are installed by a
DischargerPermittee only when necessary to achieve compliance with the conditions of
this Order. (40 C.F.R. § 122.41(e).)
E. Property Rights
1. This Order does not convey any property rights of any sort or any exclusive
privileges. (40 C.F.R. § 122.41(g).)
Attachment D – Standard Provisions (Version 2006-1B)
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2. The issuance of this Order does not authorize any injury to persons or property or
invasion of other private rights, or any infringement of state or local law or
regulations. (40 C.F.R. § 122.5(c).)
F. Inspection and Entry
The DischargerPermittee shall allow the Regional Water Board, State Water Board,
United States Environmental Protection Agency (USEPA), and/or their authorized
representatives (including an authorized contractor acting as their representative), upon
the presentation of credentials and other documents, as may be required by law, to (40
C.F.R. § 122.41(i); Wat. Code, § 13383):
1. Enter upon the DischargerPermittee's premises where a regulated facility or activity
is located or conducted, or where records are kept under the conditions of this Order
(40 C.F.R. § 122.41(i)(1));
2. Have access to and copy, at reasonable times, any records that must be kept under
the conditions of this Order (40 C.F.R. § 122.41(i)(2));
3. Inspect and photograph, at reasonable times, any facilities, equipment (including
monitoring and control equipment), practices, or operations regulated or required
under this Order (40 C.F.R. § 122.41(i)(3)); and
4. Sample or monitor, at reasonable times, for the purposes of assuring Order
compliance or as otherwise authorized by the CWA or the Water Code, any
substances or parameters at any location. (40 C.F.R. § 122.41(i)(4).)
G. Bypass
1. Definitions
a. “Bypass” means the intentional diversion of waste streams from any portion of a
treatment facility. (40 C.F.R. § 122.41(m)(1)(i).)
b. “Severe property damage” means substantial physical damage to property,
damage to the treatment facilities, which causes them to become inoperable, or
substantial and permanent loss of natural resources that can reasonably be
expected to occur in the absence of a bypass. Severe property damage does
not mean economic loss caused by delays in production. (40 C.F.R. §
122.41(m)(1)(ii).)
2. Bypass not exceeding limitations. The DischargerPermittee may allow any bypass
to occur which does not cause exceedances of effluent limitations, but only if it is for
essential maintenance to assure efficient operation. These bypasses are not subject
to the provisions listed in Standard Provisions – Permit Compliance I.G.3, I.G.4, and
I.G.5 below. (40 C.F.R. § 122.41(m)(2).)
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3. Prohibition of bypass. Bypass is prohibited, and the Regional Water Board may take
enforcement action against a DischargerPermittee for bypass, unless (40 C.F.R. §
122.41(m)(4)(i)):
a. Bypass was unavoidable to prevent loss of life, personal injury, or severe
property damage (40 C.F.R. § 122.41(m)(4)(i)(A));
b. There were no feasible alternatives to the bypass, such as the use of auxiliary
treatment facilities, retention of untreated wastes, or maintenance during normal
periods of equipment downtime. This condition is not satisfied if adequate
back-up equipment should have been installed in the exercise of reasonable
engineering judgment to prevent a bypass that occurred during normal periods of
equipment downtime or preventive maintenance (40 C.F.R. § 122.41(m)(4)(i)(B));
and
c. The DischargerPermittee submitted notice to the Regional Water Board as
required under Standard Provisions – Permit Compliance I.G.5 below. (40
C.F.R. § 122.41(m)(4)(i)(C).)
4. The Regional Water Board may approve an anticipated bypass, after considering its
adverse effects, if the Regional Water Board determines that it will meet the three
conditions listed in Standard Provisions – Permit Compliance I.G.3 above. (40
C.F.R. § 122.41(m)(4)(ii).)
5. Notice
a. Anticipated bypass. If the DischargerPermittee knows in advance of the need for
a bypass, it shall submit a notice, if possible at least 10 days before the date of
the bypass. (40 C.F.R. § 122.41(m)(3)(i).)
b. Unanticipated bypass. The DischargerPermittee shall submit notice of an
unanticipated bypass as required in Standard Provisions - Reporting V.E below
(24-hour notice). (40 C.F.R. § 122.41(m)(3)(ii).)
H. Upset
Upset means an exceptional incident in which there is unintentional and temporary
noncompliance with technology based permit effluent limitations because of factors
beyond the reasonable control of the DischargerPermittee. An upset does not include
noncompliance to the extent caused by operational error, improperly designed
treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or
careless or improper operation. (40 C.F.R. § 122.41(n)(1).)
1. Effect of an upset. An upset constitutes an affirmative defense to an action brought
for noncompliance with such technology based permit effluent limitations if the
requirements of Standard Provisions – Permit Compliance I.H.2 below are met. No
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determination made during administrative review of claims that noncompliance was
caused by upset, and before an action for noncompliance, is final administrative
action subject to judicial review. (40 C.F.R. § 122.41(n)(2).).
2. Conditions necessary for a demonstration of upset. A DischargerPermittee who
wishes to establish the affirmative defense of upset shall demonstrate, through
properly signed, contemporaneous operating logs or other relevant evidence that (40
C.F.R. § 122.41(n)(3)):
a. An upset occurred and that the DischargerPermittee can identify the cause(s) of
the upset (40 C.F.R. § 122.41(n)(3)(i));
b. The permitted facility was, at the time, being properly operated (40 C.F.R. §
122.41(n)(3)(ii));
c. The DischargerPermittee submitted notice of the upset as required in Standard
Provisions – Reporting V.E.2.b below (24-hour notice) (40 C.F.R. §
122.41(n)(3)(iii)); and
d. The DischargerPermittee complied with any remedial measures required under
Standard Provisions – Permit Compliance I.C above. (40 C.F.R. §
122.41(n)(3)(iv).)
3. Burden of proof. In any enforcement proceeding, the DischargerPermittee seeking
to establish the occurrence of an upset has the burden of proof. (40 C.F.R. §
122.41(n)(4).)
II. STANDARD PROVISIONS – PERMIT ACTION
A. General
This Order may be modified, revoked and reissued, or terminated for cause. The filing
of a request by the DischargerPermittee for modification, revocation and reissuance, or
termination, or a notification of planned changes or anticipated noncompliance does not
stay any Order condition. (40 C.F.R. § 122.41(f).)
B. Duty to Reapply
If the DischargerPermittee wishes to continue an activity regulated by this Order after
the expiration date of this Order, the DischargerPermittee must apply for and obtain a
new permit. (40 C.F.R. § 122.41(b).)
C. Transfers
This Order is not transferable to any person except after notice to the Regional Water
Board. The Regional Water Board may require modification or revocation and
reissuance of the Order to change the name of the DischargerPermittee and incorporate
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such other requirements as may be necessary under the CWA and the Water Code.
(40 C.F.R. § 122.41(l)(3); § 122.61.)
III. STANDARD PROVISIONS – MONITORING
A. Samples and measurements taken for the purpose of monitoring shall be representative
of the monitored activity. (40 C.F.R. § 122.41(j)(1).)
B. Monitoring results must be conducted according to test procedures under Part 136 or, in
the case of sludge use or disposal, approved under Part 136 unless otherwise specified
in Part 503 unless other test procedures have been specified in this Order. (40 C.F.R. §
122.41(j)(4); § 122.44(i)(1)(iv).)
IV. STANDARD PROVISIONS – RECORDS
A. Except for records of monitoring information required by this Order related to the
DischargerPermittee's sewage sludge use and disposal activities, which shall be
retained for a period of at least five years (or longer as required by Part 503), the
DischargerPermittee shall retain records of all monitoring information, including all
calibration and maintenance records and all original strip chart recordings for
continuous monitoring instrumentation, copies of all reports required by this Order, and
records of all data used to complete the application for this Order, for a period of at least
three (3) years from the date of the sample, measurement, report or application. This
period may be extended by request of the Regional Water Board Executive Officer at
any time. (40 C.F.R. § 122.41(j)(2).)
B. Records of monitoring information shall include:
1. The date, exact place, and time of sampling or measurements (40 C.F.R. §
122.41(j)(3)(i));
2. The individual(s) who performed the sampling or measurements (40 C.F.R. §
122.41(j)(3)(ii));
3. The date(s) analyses were performed (40 C.F.R. § 122.41(j)(3)(iii));
4. The individual(s) who performed the analyses (40 C.F.R. § 122.41(j)(3)(iv));
5. The analytical techniques or methods used (40 C.F.R. § 122.41(j)(3)(v)); and
6. The results of such analyses. (40 C.F.R. § 122.41(j)(3)(vi).)
C. Claims of confidentiality for the following information will be denied (40 C.F.R. §
122.7(b)):
1. The name and address of any permit applicant or DischargerPermittee (40 C.F.R. §
122.7(b)(1)); and
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2. Permit applications and attachments, permits and effluent data. (40 C.F.R. §
122.7(b)(2).)
V. STANDARD PROVISIONS – REPORTING
A. Duty to Provide Information
The DischargerPermittee shall furnish to the Regional Water Board, State Water Board,
or USEPA within a reasonable time, any information which the Regional Water Board,
State Water Board, or USEPA may request to determine whether cause exists for
modifying, revoking and reissuing, or terminating this Order or to determine compliance
with this Order. Upon request, the DischargerPermittee shall also furnish to the
Regional Water Board, State Water Board, or USEPA copies of records required to be
kept by this Order. (40 C.F.R. § 122.41(h); Wat. Code, § 13267.)
B. Signatory and Certification Requirements
1. All applications, reports, or information submitted to the Regional Water Board, State
Water Board, and/or USEPA shall be signed and certified in accordance with
Standard Provisions – Reporting V.B.2, V.B.3, V.B.4, and V.B.5 below. (40 C.F.R. §
122.41(k).)
Select one of the three following directions for signature as applicable.
For a corporation, select only the following:
2. All permit applications shall be signed by a responsible corporate officer. For the
purpose of this section, a responsible corporate officer means: (i) A president,
secretary, treasurer, or vice-president of the corporation in charge of a principal
business function, or any other person who performs similar policy- or decisionmaking functions for the corporation, or (ii) the manager of one or more
manufacturing, production, or operating facilities, provided, the manager is
authorized to make management decisions which govern the operation of the
regulated facility including having the explicit or implicit duty of making major capital
investment recommendations, and initiating and directing other comprehensive
measures to assure long term environmental compliance with environmental laws
and regulations; the manager can ensure that the necessary systems are
established or actions taken to gather complete and accurate information for permit
application requirements; and where authority to sign documents has been assigned
or delegated to the manager in accordance with corporate procedures. (40 C.F.R. §
122.22(a)(1).)
For a partnership or sole proprietorship, select only the following:
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2. All permit applications shall be signed by a general partner or the proprietor,
respectively. (40 C.F.R. § 122.22(a)(2).)
For a municipality, State, federal, or other public agency, select only the following:
2. All permit applications shall be signed as follows:
2. All permit applications shall be signed by either a principal executive officer or
ranking elected official. For purposes of this provision, a principal executive officer
of a federal agency includes: (i) the chief executive officer of the agency, or (ii) a
senior executive officer having responsibility for the overall operations of a principal
geographic unit of the agency (e.g., Regional Administrators of USEPA). (40
C.F.R. § 122.22(a)(3).).
3. All reports required by this Order and other information requested by the Regional
Water Board, State Water Board, or USEPA shall be signed by a person described
in Standard Provisions – Reporting V.B.2 above, or by a duly authorized
representative of that person. A person is a duly authorized representative only if:
a. The authorization is made in writing by a person described in Standard
Provisions – Reporting V.B.2 above (40 C.F.R. § 122.22(b)(1));
b. The authorization specifies either an individual or a position having responsibility
for the overall operation of the regulated facility or activity such as the position of
plant manager, operator of a well or a well field, superintendent, position of
equivalent responsibility, or an individual or position having overall responsibility
for environmental matters for the company. (A duly authorized representative
may thus be either a named individual or any individual occupying a named
position.) (40 C.F.R. § 122.22(b)(2)); and
c. The written authorization is submitted to the Regional Water Board and State
Water Board. (40 C.F.R. § 122.22(b)(3).)
4. If an authorization under Standard Provisions – Reporting V.B.3 above is no longer
accurate because a different individual or position has responsibility for the overall
operation of the facility, a new authorization satisfying the requirements of Standard
Provisions – Reporting V.B.3 above must be submitted to the Regional Water Board
and State Water Board prior to or together with any reports, information, or
applications, to be signed by an authorized representative. (40 C.F.R. § 122.22(c).)
5. Any person signing a document under Standard Provisions – Reporting V.B.2 or
V.B.3 above shall make the following certification:
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“I certify under penalty of law that this document and all attachments were prepared
under my direction or supervision in accordance with a system designed to assure
that qualified personnel properly gather and evaluate the information submitted.
Based on my inquiry of the person or persons who manage the system or those
persons directly responsible for gathering the information, the information submitted
is, to the best of my knowledge and belief, true, accurate, and complete. I am aware
that there are significant penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations.” (40 C.F.R. § 122.22(d).)
C. Monitoring Reports
1. Monitoring results shall be reported at the intervals specified in the Monitoring and
Reporting Program (Attachment E) in this Order. (40 C.F.R. § 122.22(l)(4).)
Modify the above provision if there are also other monitoring requirements with
reporting intervals specified elsewhere in the Order (e.g., Special Provisions).
2. Monitoring results must be reported on a Discharge Monitoring Report (DMR) form
or forms provided or specified by the Regional Water Board or State Water Board for
reporting results of monitoring of sludge use or disposal practices. (40 C.F.R. §
122.41(l)(4)(i).)
3. If the DischargerPermittee monitors any pollutant more frequently than required by
this Order using test procedures approved under Part 136 or, in the case of sludge
use or disposal, approved under Part 136 unless otherwise specified in Part 503, or
as specified in this Order, the results of this monitoring shall be included in the
calculation and reporting of the data submitted in the DMR or sludge reporting form
specified by the Regional Water Board. (40 C.F.R. § 122.41(l)(4)(ii).)
4. Calculations for all limitations, which require averaging of measurements, shall
utilize an arithmetic mean unless otherwise specified in this Order. (40 C.F.R. §
122.41(l)(4)(iii).)
D. Compliance Schedules
Reports of compliance or noncompliance with, or any progress reports on, interim and
final requirements contained in any compliance schedule of this Order, shall be
submitted no later than 14 days following each schedule date. (40 C.F.R. §
122.41(l)(5).)
E. Twenty-Four Hour Reporting
1. The DischargerPermittee shall report any noncompliance that may endanger health
or the environment. Any information shall be provided orally within 24 hours from the
time the DischargerPermittee becomes aware of the circumstances. A written
submission shall also be provided within five (5) days of the time the
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DischargerPermittee becomes aware of the circumstances. The written submission
shall contain a description of the noncompliance and its cause; the period of
noncompliance, including exact dates and times, and if the noncompliance has not
been corrected, the anticipated time it is expected to continue; and steps taken or
planned to reduce, eliminate, and prevent reoccurrence of the noncompliance. (40
C.F.R. § 122.41(l)(6)(i).)
2. The following shall be included as information that must be reported within 24 hours
under this paragraph (40 C.F.R. § 122.41(l)(6)(ii)):
a. Any unanticipated bypass that exceeds any effluent limitation in this Order. (40
C.F.R. § 122.41(l)(6)(ii)(A).)
b. Any upset that exceeds any effluent limitation in this Order. (40 C.F.R. §
122.41(l)(6)(ii)(B).)
3. The Regional Water Board may waive the above-required written report under this
provision on a case-by-case basis if an oral report has been received within 24
hours. (40 C.F.R. § 122.41(l)(6)(iii).)
F. Planned Changes
The DischargerPermittee shall give notice to the Regional Water Board as soon as
possible of any planned physical alterations or additions to the permitted facility. Notice
is required under this provision only when (40 C.F.R. § 122.41(l)(1)):
1. The alteration or addition to a permitted facility may meet one of the criteria for
determining whether a facility is a new source in section 122.29(b) (40 C.F.R. §
122.41(l)(1)(i)); or
Select only one of the two following choices for paragraph 2. Select the first choice below if
the discharge is not an existing manufacturing, commercial, mining, or silvicultural discharge
as referenced in section 122.42(a). Otherwise, if the discharge is from such a facility, select the
second choice.
2. The alteration or addition could significantly change the nature or increase the
quantity of pollutants discharged. This notification applies to pollutants that are not
subject to effluent limitations in this Order. (40 C.F.R. § 122.41(l)(1)(ii).)
2. The alteration or addition could significantly change the nature or increase the
quantity of pollutants discharged. This notification applies to pollutants that are
subject neither to effluent limitations in this Order nor to notification requirements
under section 122.42(a)(1) (see Additional Provisions—Notification Levels VII.A.1).
(40 C.F.R. § 122.41(l)(1)(ii).)
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3. The alteration or addition results in a significant change in the DischargerPermittee's
sludge use or disposal practices, and such alteration, addition, or change may justify
the application of permit conditions that are different from or absent in the existing
permit, including notification of additional use or disposal sites not reported during
the permit application process or not reported pursuant to an approved land
application plan. (40 C.F.R.§ 122.41(l)(1)(iii).)
G. Anticipated Noncompliance
The DischargerPermittee shall give advance notice to the Regional Water Board or
State Water Board of any planned changes in the permitted facility or activity that may
result in noncompliance with General Order requirements. (40 C.F.R. § 122.41(l)(2).)
H. Other Noncompliance
The DischargerPermittee shall report all instances of noncompliance not reported under
Standard Provisions – Reporting V.C, V.D, and V.E above at the time monitoring reports
are submitted. The reports shall contain the information listed in Standard Provision –
Reporting V.E above. (40 C.F.R. § 122.41(l)(7).)
I. Other Information
When the DischargerPermittee becomes aware that it failed to submit any relevant facts
in a permit application, or submitted incorrect information in a permit application or in
any report to the Regional Water Board, State Water Board, or USEPA, the
DischargerPermittee shall promptly submit such facts or information. (40 C.F.R. §
122.41(l)(8).)
Formatted: English (U.S.)
VI. STANDARD PROVISIONS – ENFORCEMENT
A. The Regional Water Board is authorized to enforce the terms of this permit under
several provisions of the Water Code, including, but not limited to, sections 13385,
13386, and 13387.
VII.
ADDITIONAL PROVISIONS – NOTIFICATION LEVELS
Select one of the two following provision groups for Non-Municipal Facilities or POTWs as
applicable and delete the other.
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DISCHARGER
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Formatted: English (U.S.)
A. Non-Municipal Facilities
Existing manufacturing, commercial, mining, and silvicultural DischargerPermittees shall
notify the Regional Water Board as soon as they know or have reason to believe (40
C.F.R. § 122.42(a)):
Comment [MT32]: It should be noted
that this should not be included in a
POTW permit.
1. That any activity has occurred or will occur that would result in the discharge, on a
routine or frequent basis, of any toxic pollutant that is not limited in this Order, if that
discharge will exceed the highest of the following "notification levels" (40 C.F.R. §
122.42(a)(1)):
a. 100 micrograms per liter (μg/L) (40 C.F.R. § 122.42(a)(1)(i));
b. 200 μg/L for acrolein and acrylonitrile; 500 μg/L for 2,4-dinitrophenol and
2-methyl-4,6-dinitrophenol; and 1 milligram per liter (mg/L) for antimony (40
C.F.R. § 122.42(a)(1)(ii));
c. Five (5) times the maximum concentration value reported for that pollutant in the
Report of Waste Discharge (40 C.F.R. § 122.42(a)(1)(iii)); or
d. The level established by the Regional Water Board in accordance with section
122.44(f). (40 C.F.R. § 122.42(a)(1)(iv).)
2. That any activity has occurred or will occur that would result in the discharge, on a
non-routine or infrequent basis, of any toxic pollutant that is not limited in this Order,
if that discharge will exceed the highest of the following “notification levels" (40
C.F.R. § 122.42(a)(2)):
a. 500 micrograms per liter (μg/L) (40 C.F.R. § 122.42(a)(2)(i));
b. 1 milligram per liter (mg/L) for antimony (40 C.F.R. § 122.42(a)(2)(ii));
c. Ten (10) times the maximum concentration value reported for that pollutant in the
Report of Waste Discharge (40 C.F.R. § 122.42(a)(2)(iii)); or
d. The level established by the Regional Water Board in accordance with section
122.44(f). (40 C.F.R. § 122.42(a)(2)(iv).)
Comment [MT33]: This should not
be included in an industrial permit.
A. Publicly-Owned Treatment Works (POTWs)
All POTWs shall provide adequate notice to the Regional Water Board of the following
(40 C.F.R. § 122.42(b)):
1. Any new introduction of pollutants into the POTW from an indirect discharger that
would be subject to sections 301 or 306 of the CWA if it were directly discharging
those pollutants (40 C.F.R. § 122.42(b)(1)); and
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DISCHARGER
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2. Any substantial change in the volume or character of pollutants being introduced into
that POTW by a source introducing pollutants into the POTW at the time of adoption
of the Order. (40 C.F.R. § 122.42(b)(2).)
3. Adequate notice shall include information on the quality and quantity of effluent introduced
into the POTW as well as any anticipated impact of the change on the quantity or quality of
effluent to be discharged from the POTW. (40 C.F.R. § 122.42(b)(3).)
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
ATTACHMENT E – MONITORING AND REPORTING PROGRAM
Table of Contents
Attachment E – Monitoring and Reporting Program (MRP) ....................................................... 2
I.
General Monitoring Provisions........................................................................................... 2
II. Monitoring Locations ......................................................................................................... 3
III. Influent Monitoring Requirements...................................................................................... 4
A. Monitoring Location <Monitoring Location Name>...................................................... 4
IV. Effluent Monitoring Requirements ..................................................................................... 4
B. Monitoring Location <Monitoring Location Name>...................................................... 5
V. Whole Effluent Toxicity Testing Requirements .................................................................. 6
VI. Land Discharge Monitoring Requirements ........................................................................ 6
VII. Reclamation Monitoring Requirements.............................................................................. 7
VIII. Receiving Water Monitoring Requirements – Surface Water and Groundwater ............... 8
A. Monitoring Location <Monitoring Location Name> ............................................................ 8
IX. Other Monitoring Requirements......................................................................................... 9
X. Reporting Requirements.................................................................................................... 9
A. General Monitoring and Reporting Requirements....................................................... 9
B. Self Monitoring Reports (SMRs) ................................................................................. 9
C. Discharge Monitoring Reports (DMRs) ..................................................................... 12
D. Other Reports ........................................................................................................... 12
List of Tables
Table 1. Monitoring Station Locations ...................................................................................... 3
Table 2. Influent Monitoring ...................................................................................................... 4
Table 3. Effluent Monitoring...................................................................................................... 5
Table 4. Effluent Monitoring...................................................................................................... 5
Table 5a. Land Discharge Monitoring Requirements................................................................ 6
Table 5b. Land Discharge Monitoring Requirements................................................................ 7
Table 6a. Reclamation Monitoring Requirements..................................................................... 7
Table 6b. Reclamation Monitoring Requirements..................................................................... 7
Table 7a. Receiving Water Monitoring Requirements .............................................................. 8
Table 7b. Receiving Water Monitoring Requirements .............................................................. 8
Table 8. Monitoring Periods and Reporting Schedule ............................................................ 10
Attachment E – MRP (Version 2006-1B)
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DISCHARGER
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ATTACHMENT E – MONITORING AND REPORTING PROGRAM (MRP)
This attachment contains the Monitoring and Reporting Program for the Discharger’sPermittee’s
WDR/NPDES permit.
The Code of Federal Regulations section 122.48 requires that all NPDES permits specify
monitoring and reporting requirements. Water Code Sections 13267 and 13383 also authorize
the Regional Water Quality Control Board (Regional Water Board) to require technical and
monitoring reports. This MRP establishes monitoring and reporting requirements, which
implement the federal and California regulations.
I.
GENERAL MONITORING PROVISIONS
This section includes the Regional Water Board’s general monitoring provisions.
A. <Include General Monitoring Provision>
B. Laboratories analyzing monitoring samples shall be certified by the Department of
Health Services, in accordance with the provision of Water Code section 13176, and
must include quality assurance/quality control data with their reports.
Comment [CVW34]: The permits in
the Bay Area include Table E-1 Test
Methods and Minimum Levels for
Pollutants with Reasonable Potential. It
lists methods and their respective MLs
from the SIP. Do you want this in the
template?
C. Etc.
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DISCHARGER
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II.
NPDES NO. CAXXXXXXX
MONITORING LOCATIONS
This section describes the required monitoring locations. The Monitoring Location can be defined as
the point where; 1) compliance with an effluent limitation or discharge prohibition is determined or,
2) other sampling is required by a permit. Note that a Discharge Point is a defined location where
regulated effluent from a facility is actually discharged and is the point at which compliance with
permit limitations and prohibitions is to be achieved. A Discharge Point may or may not be the same
as a Monitoring Location. Latitude and longitude may not be available for all monitoring locations.
Monitoring Locations may be one of the following types.
•
•
Influent (INF-001, INF-002…)
Effluent (EFF-001, EFF-002 for different outfalls, or EFF-001A, EFF-001B for different
monitoring locations on the same outfall)
• Internal (INT-001, INT-002…)
• Receiving Surface Water (RSW-001, RSW-002, etc.; optionally RSW-001U, RSW-001D, RSW002U, RSW-002D, etc. for upstream and downstream reference in a stream or river)
•Receiving Ground Water (RGW-001, RGW-002…)
•Land Discharge (LND-001, LND-002…)
•Reclamation Discharge (REC-001, REC-002…)
•Water Supply Monitoring (SPL-001, SPL-002...)
Comment: The permit template is for NPDES permits. Non-NPDES activities should be regulated by
other regulatory mechanisms because different enforcement conditions apply
• Pretreatment Monitoring (POTWs only) (PRE-001, PRE-002…)
• Biosolids Monitoring (POTWs only) (BIO-001, BIO-002…)
• Sediment Monitoring (SED-001, SED-002…)
The DischargerPermittee shall establish the following monitoring locations to demonstrate
compliance with the effluent limitations, discharge specifications, and other requirements in
this Order:
Comment [CVW35]: Suggest adding
E as a descriptor to all the Tables here to
avoid confusion with tables in the main
body of the Order.
Table E-1. Monitoring Station Locations
Discharge Point
Name
--
Monitoring Location
Name
<e.g., 001>
<e.g., 001>
<e.g., 002>
-<Discharge
Point Name>
<e.g., EFF-001A>
<e.g., EFF-001B>
<e.g., EFF-002>
<e.g., RSW-001>
<Monitoring
Location Name>
<e.g., INF-001>
Monitoring Location Description (include Latitude and
Longitude when available)
<influent monitoring location description; latitude and
longitude>
<monitoring location description>
<surface water monitoring location description>
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DISCHARGER
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III.
NPDES NO. CAXXXXXXX
INFLUENT MONITORING REQUIREMENTS
This section includes influent monitoring requirements, if applicable. Influent monitoring locations
should also be listed in Section II above.
A. Monitoring Location <Monitoring Location Name>
1. The DischargerPermittee shall monitor <influent to the facility or other
description of monitored influent> at <Monitoring Location Name> as follows:
Table 2. Influent Monitoring
Parameter
Units
Sample Type
Minimum Sampling
Frequency
Required Analytical
Test Method
Comment [MO36]: This column is
unecessary. Citing 40 CFR 136 is
sufficient.
2. Etc.
IV.
EFFLUENT MONITORING REQUIREMENTS
This section includes effluent monitoring requirements. Monitoring Locations should also be listed in
section II above. Monitoring requirements must be included, at a minimum, for each parameter listed in
the Effluent Limitations section of the Order for each Discharge Point. This section also includes any
monitoring requirements for a pollutant without an effluent limitation. For example, this section would
also include the SIP requirements for periodic monitoring for CTR parameters for which no effluent
limitations have been established.
A permit writer may elect to combine the requirements for more than one Monitoring Location into a
single table if the requirements for those Monitoring Locations are EXACTLY THE SAME; otherwise
separate tables for each location are required.
Minimum Level (ML) Selection for the Reporting Level (RL) (SIP section 2.4.2): When there is
more than one ML value for a given substance, the Regional Water Board shall include in the
permit, all ML values, and their associated analytical methods, listed in Appendix 4 of the SIP that
are below the calculated effluent limitation. The discharger permittee may select any one of those
cited analytical methods for compliance determination. If no ML value is below the effluent
limitation, then the Regional Water Board shall select the lowest ML value and its associated
analytical method listed in Appendix 4 for inclusion in the permit. Alternatively to identifying the
method and ML in the following table, a reference could be made to an additional Attachment
specifying applicable MLs.
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DISCHARGER
FACILITY NAME
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1. The DischargerPermittee shall monitor <description of monitored effluent> at
<Monitoring Location Name> as follows. If more than one analytical test method
is listed for a given parameter, the DischargerPermittee must select from the listed
methods and corresponding Minimum Level:
Table 3. Effluent Monitoring
Parameter
Units
Sample
Type
Minimum
Sampling
Frequency
Required Analytical Test Method
and (Minimum Level, units),
respectively
Note: If whole effluent toxicity monitoring is required for a Discharge Point, add a footnote to the
table above referencing section V. Whole Effluent Toxicity Testing Requirements.
2. Etc.
B. Monitoring Location <Monitoring Location Name>
1. The DischargerPermittee shall monitor <description of monitored effluent> at
<Monitoring Location Name> as follows:
Table 4. Effluent Monitoring
Parameter
Units
Sample
Type
Minimum
Sampling
Frequency
Required Analytical Test Method
and (Minimum Level, units),
respectively
Note: If whole effluent toxicity monitoring is included, add a footnote referencing section V,
Whole Effluent Toxicity Testing Requirements.
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DISCHARGER
FACILITY NAME
V.
NPDES NO. CAXXXXXXX
WHOLE EFFLUENT TOXICITY TESTING REQUIREMENTS
This section includes detailed whole effluent toxicity (WET) testing requirements, including test
species, effect, test duration, and test method. The requirement to conduct WET testing at a specific
monitoring location must be listed under section IV, Effluent Monitoring Requirements, above.
This section must include details on how to conduct acute and chronic toxicity tests and may
include the following:
•
•
•
•
•
VI.
Acute Toxicity Testing Requirements
Chronic Toxicity Testing Requirements
Quality Assurance
Accelerated Monitoring Requirements
Steps in the TIE/TRE Process
LAND DISCHARGE MONITORING REQUIREMENTS
This section includes monitoring requirements for discharges to land. For discharges to ponds,
freeboard monitoring, observation of algae, and other monitoring of the pond itself, the
requirements should be included in section IX, Other Monitoring Requirements. Monitoring
Locations should be listed in section II, above. Monitoring requirements must be included for each
parameter listed in the Land Discharge Specifications section of the Order. This section, at a
minimum, also includes any monitoring requirements for a parameter, in which no land discharge
specifications are established.
A permit writer may elect to combine the requirements for more than one Monitoring Location
into a single table if the requirements for those Monitoring Locations are EXACTLY THE
SAME; otherwise separate tables for each location are required.
1. The Discharger shall monitor <description of monitored discharge> at
Table 5a. Land Discharge Monitoring Requirements
Parameter
Units
Sample Type
Minimum Sampling
Frequency
Required Analytical
Test Method
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Table 5b. Land Discharge Monitoring Requirements
Parameter
Units
Sample Type
Minimum Sampling
Frequency
Required Analytical
Test Method
VII. RECLAMATION MONITORING REQUIREMENTS
This section includes monitoring requirements for reclamation discharge. Monitoring Locations
should be listed in section II, above. Monitoring requirements must be included, at a minimum, for
each parameter listed in the Reclamation Discharge Specifications section of the Order. This
section also includes monitoring requirements for a parameter in which no reclamation
specifications are established.
A permit writer may elect to combine the requirements for more than one Monitoring Location
into a single table if the requirements for those Monitoring Locations are EXACTLY THE
SAME, otherwise separate tables for each location are required.
1.The Discharger shall monitor <description of monitored discharge> at <Monitoring
Location Name> as follows:
Table 6a. Reclamation Monitoring Requirements
Parameter
Units
Sample Type
Minimum Sampling
Frequency
Required Analytical
Test Method
Table 6b. Reclamation Monitoring Requirements
Parameter
Units
Sample Type
Minimum Sampling
Frequency
Required Analytical
Test Method
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COMMENT: THE PERMIT TEMPLATE IS FOR NPDES PERMITS. NON-NPDES
ACTIVITIES SHOULD BE REGULATED BY OTHER REGULATORY MECHANISMS
BECAUSE DIFFERENT ENFORCEMENT CONDITIONS APPLY.
VIII. RECEIVING WATER MONITORING REQUIREMENTS – SURFACE WATER AND
GROUNDWATER
This section includes receiving water monitoring requirements for both surface water and ground
water if applicable. Monitoring locations must be listed in section II, above.
A permit writer may elect to combine the requirements for more than one Monitoring Location into
a single table if the requirements for those Monitoring Locations are EXACTLY THE SAME,
otherwise separate tables for each location are required.
1. The DischargerPermittee shall monitor <Receiving Water> at <Monitoring
Table 7a. Receiving Water Monitoring Requirements
Parameter
Units
Sample Type
Minimum Sampling
Frequency
Required Analytical
Test Method
1. The DischargerPermittee shall monitor <Receiving Water> at <Monitoring
Table 7b. Receiving Water Monitoring Requirements
Parameter
Units
Sample Type
Minimum Sampling
Frequency
Required Analytical
Test Method
Continue with additional subsections and tables as needed for other monitoring types.
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DISCHARGER
FACILITY NAME
IX.
NPDES NO. CAXXXXXXX
OTHER MONITORING REQUIREMENTS
This section includes other (e.g., non-effluent, priority pollutant scan) monitoring requirements. The
monitoring location(s) should be listed under II. above. The monitoring types below serve as
examples only. Specify the sampling parameters, monitoring frequencies, locations, and analytical
test methods to be used:
•
•
•
•
•
•
•
•
•
•
X.
Water Supply Monitoring
Pretreatment Monitoring (POTWs Only)
Biosolids/Sludge Monitoring
Storm Water Monitoring
Treatment Pond/Lagoon Monitoring
Thermal Monitoring
Dioxin Monitoring
Regional Monitoring Program Monitoring
Discharge Observations
Effluent and Ambient Priority Pollutant Scans
REPORTING REQUIREMENTS
This section includes the dates and procedures for all the reporting requirements.
A. General Monitoring and Reporting Requirements
1. The DischargerPermittee shall comply with all Standard Provisions (Attachment D)
related to monitoring, reporting, and recordkeeping.
2. Etc.
B. Self Monitoring Reports (SMRs)
1. At any time during the term of this permit, the State or Regional Water Board may
notify the DischargerPermittee to electronically submit Self-Monitoring Reports
(SMRs) using the State Water Board’s California Integrated Water Quality System
(CIWQS) Program Web site (http://www.waterboards.ca.gov/ciwqs/index.html). Until
such notification is given, the DischargerPermittee shall submit hard copy SMRs,
(except for Permitees using the Electronic Reporting System (ERS) in Region 2).
The CIWQS Web site will provide additional directions for SMR submittal in the
event there will be service interruption for electronic submittal.
2. The DischargerPermittee shall report in the SMR the results for all monitoring
specified in this MRP under sections III through IX. The DischargerPermittee shall
submit <monthly, quarterly, semiannual, annual> SMRs including the results of all
required monitoring using USEPA-approved test methods or other test methods
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specified in this Order. If the DischargerPermittee monitors any pollutant more
frequently than required by this Order, the results of this monitoring shall be included
in the calculations and reporting of the data submitted in the SMR.
3. Monitoring periods and reporting for all required monitoring shall be completed
according to the following schedule:
Table 8. Monitoring Periods and Reporting Schedule
Sampling
Frequency
Monitoring Period Begins On…
Monitoring Period
SMR Due Date
Submit with <e.g.,
monthly> SMR
Submit with <e.g.,
monthly> SMR
Continuous
<Permit effective date>
All
Hourly
Hourly
Daily
(Midnight through 11:59
PM) or any 24-hour period
Submit with <e.g.,
that reasonably represents
monthly> SMR
a calendar day for purposes
of sampling.
Weekly
<Sunday following permit effective
date or on permit effective date if on a Sunday through Saturday
Sunday>
Monthly
<First day of calendar month
following permit effective date or on
permit effective date if that date is
first day of the month>
Quarterly
<Closest of January 1, April 1, July 1,
or October 1 following (or on) permit
effective date>
Semiannually
<Closest of January 1 or July 1
following (or on) permit effective
date>
Annually
<January 1 following (or on) permit
effective date>
<X> / <X> years
<Specified by permit writer>
<X> / Discharge
Event
Submit with <e.g.,
monthly> SMR
<##> days from the
end of the
1st day of calendar month
through last day of calendar monitoring period
month
<or, e.g., Submit
with quarterly SMR>
January 1 through March 31
April 1 through June 30
<##> days from the
July 1 through September
end of the
30
monitoring period
October 1 through
December 31
<##> days from the
January 1 through June 30
end of the
July 1 through December 31
monitoring period
<##> days from the
January 1 through
end of the
December 31
monitoring period
<Specified by permit
writer>
<##> days from the
<Specified by permit writer> end of the
monitoring period
Note: Include only the rows from the table above based on the various sampling frequencies required
in the permit. The permit writer can specify alternative monitoring period start dates, where desired.
The permit writer must specify reporting due dates for sampling required less than 1 / year. The due
dates included for all other monitoring frequencies assume monthly SMR submittal.
The reporting protocols below reference “applicable” RLs. The MRP should clearly indicate for
various types of monitoring (e.g., effluent, priority pollutant scans) where RLs are applicable.
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4. Reporting Protocols. The DischargerPermittee shall report with each sample result
the applicable Reporting Level (RL) and the current Method Detection Limit (MDL),
as determined by the procedure in Part 136.
The DischargerPermittee shall report the results of analytical determinations for the
presence of chemical constituents in a sample using the following reporting
protocols:
a. Sample results greater than or equal to the RL shall be reported as measured by
the laboratory (i.e., the measured chemical concentration in the sample).
b. Sample results less than the RL, but greater than or equal to the laboratory’s
MDL, shall be reported as “Detected, but Not Quantified,” or DNQ. The
estimated chemical concentration of the sample shall also be reported.
For the purposes of data collection, the laboratory shall write the estimated
chemical concentration next to DNQ as well as the words “Estimated
Concentration” (may be shortened to “Est. Conc.”). The laboratory may, if such
information is available, include numerical estimates of the data quality for the
reported result. Numerical estimates of data quality may be percent accuracy (+
a percentage of the reported value), numerical ranges (low to high), or any other
means considered appropriate by the laboratory.
c. Sample results less than the laboratory’s MDL shall be reported as “Not
Detected,” or ND.
d. DischargerPermittees are to instruct laboratories to establish calibration
standards so that the ML value (or its equivalent if there is differential treatment
of samples relative to calibration standards) is the lowest calibration standard. At
no time is the DischargerPermittee to use analytical data derived from
extrapolation beyond the lowest point of the calibration curve.
5. The DischargerPermittee shall submit SMRs in accordance with the following
requirements:
a. The DischargerPermittee shall arrange all reported data in a tabular format. The
data shall be summarized to clearly illustrate whether the facility is operating in
compliance with interim and/or final effluent limitations. The DischargerPermittee
is not required to duplicate the submittal of data that is entered in a tabular format
within CIWQS. When electronic submittal of data is required and CIWQS does
not provide for entry into a tabular format within the system, the
DischargerPermittee shall electronically submit the data in a tabular format as an
attachment.
b. The DischargerPermittee shall attach a cover letter to the SMR. The information
contained in the cover letter shall clearly identify violations of the WDRs; discuss
corrective actions taken or planned; and the proposed time schedule for
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corrective actions. Identified violations must include a description of the
requirement that was violated and a description of the violation.
c. SMRs must be submitted to the Regional Water Board, signed and certified as
required by the Standard Provisions (Attachment D), to the address listed below:
<INSERT REGIONAL WATER BOARD ADDRESS>
C. Discharge Monitoring Reports (DMRs)
Note: This subsection applies to major dischargers that are required to submit discharge
monitoring reports, in addition to self-monitoring reports.
1. As described in Section X.B.1 above, at any time during the term of this permit, the
State or Regional Water Board may notify the DischargerPermittee to electronically
submit SMRs that will satisfy federal requirements for submittal of Discharge
Monitoring Reports (DMRs). Until such notification is given, the DischargerPermittee
shall submit DMRs in accordance with the requirements described below.
2. DMRs must be signed and certified as required by the standard provisions
(Attachment D). The Discharge shall submit the original DMR and one copy of the
DMR to the address listed below:
Discharge Monitoring Report Processing Center
Post Office Box 671
3. All discharge monitoring results must be reported on the official USEPA pre-printed
DMR forms (EPA Form 3320-1). Forms that are self-generated or modified cannot
be accepted.
D. Other Reports
Note: Include any other reporting requirements for the Discharger in this subsection. For
example, this subsection could be used to direct the Discharger how to submit the results of
special studies, TIE/TREs, PMPs, Pollution Prevention Plans, or satisfaction of compliance
schedule milestone dates. Example language follows.
1. The Discharger shall report the results of any <special studies, acute and chronic
toxicity testing, TRE/TIE, PMP, and Pollution Prevention Plan> required by
Special Provisions – VI.C.<list> of this Order. The Discharger shall report the
progress in satisfaction of compliance schedule dates specified in Special Provisions
– VI.C.7 of this Order. The Discharger shall submit reports <with the first monthly
Comment [MO37]: This additional
language from previous versions of the
template is not useful. Specifications for
reporting should be placed with the
reporting requirement, not in a separate
section. Otherwise the pieces of the
requirements are spread out in a
haphazard way and are very difficult (if
not impossible) for a Permittee to find.
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
SMR scheduled to be submitted on or immediately following the report due
date> <in compliance with SMR reporting requirements described in
subsection X.B.5 above>.
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FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
ATTACHMENT F – FACT SHEET
Table of Contents
Attachment F – Fact Sheet ........................................................................................................ 3
I.
Permit Information ............................................................................................................. 3
II. Facility Description ............................................................................................................ 4
A. Description of Wastewater and Biosolids Treatment or Controls ................................ 4
B. Discharge Points and Receiving Waters..................................................................... 4
C. Summary of Existing Requirements and Self-Monitoring Report (SMR) Data ............ 5
D. Compliance Summary................................................................................................. 5
E. Planned Changes ....................................................................................................... 5
III. Applicable Plans, Policies, and Regulations ...................................................................... 6
A. Legal Authorities ......................................................................................................... 6
B. California Environmental Quality Act (CEQA) ............................................................. 6
C. State and Federal Regulations, Policies, and Plans ................................................... 6
D. Impaired Water Bodies on CWA 303(d) List ............................................................... 9
E. Other Plans, Polices and Regulations......................................................................... 9
IV. Rationale For Effluent Limitations and Discharge Specifications....................................... 9
A. Discharge Prohibitions .............................................................................................. 10
B. Technology-Based Effluent Limitations..................................................................... 10
1. Scope and Authority.............................................................................................. 10
2. Applicable Technology-Based Effluent Limitations ............................................... 13
C. Water Quality-Based Effluent Limitations (WQBELs)................................................ 14
1. Scope and Authority.............................................................................................. 14
2. Applicable Beneficial Uses and Water Quality Criteria and Objectives ................. 15
3. Determining the Need for WQBELs ...................................................................... 15
4. WQBEL Calculations ............................................................................................ 16
5. Whole Effluent Toxicity (WET) .............................................................................. 17
D. Final Effluent Limitations........................................................................................... 17
E. Interim Effluent Limitations........................................................................................ 21
F. Land Discharge Specifications.................................................................................. 21
G. Reclamation Specifications....................................................................................... 21
V. Rationale for Receiving Water Limitations ....................................................................... 21
A. Surface Water ........................................................................................................... 21
B. Groundwater ............................................................................................................. 22
VI. Rationale for Monitoring and Reporting Requirements.................................................... 22
A. Influent Monitoring .................................................................................................... 22
B. Effluent Monitoring .................................................................................................... 22
C. Whole Effluent Toxicity Testing Requirements ......................................................... 22
D. Receiving Water Monitoring...................................................................................... 23
1. Surface Water....................................................................................................... 23
2. Groundwater ......................................................................................................... 23
E. Other Monitoring Requirements................................................................................ 23
VII. Rationale for Provisions................................................................................................... 23
A. Standard Provisions.................................................................................................. 23
B. Special Provisions..................................................................................................... 24
Attachment F – Fact Sheet (Version 2006-1B)
F-1
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
1. Reopener Provisions............................................................................................. 24
2. Special Studies and Additional Monitoring Requirements..................................... 24
3. Best Management Practices and Pollution Prevention ......................................... 24
4. Construction, Operation, and Maintenance Specifications.................................... 24
5. Special Provisions for Municipal Facilities (POTWs Only) .................................... 25
6. Other Special Provisions....................................................................................... 25
7. Compliance Schedules ......................................................................................... 25
VIII. Public Participation .......................................................................................................... 25
A. Notification of Interested Parties ............................................................................... 25
B. Written Comments .................................................................................................... 26
C. Public Hearing .......................................................................................................... 26
D. Waste Discharge Requirements Petitions................................................................. 26
E. Information and Copying........................................................................................... 27
F. Register of Interested Persons ................................................................................. 27
G. Additional Information ............................................................................................... 27
List of Tables
Table 1.
Table 2.
Table 3.
Table 4.
Table 5.
Table 6.
Facility Information...................................................................................................... 3
Historic Effluent Limitations and Monitoring Data ....................................................... 5
Basin Plan Beneficial Uses......................................................................................... 7
Summary of Technology-based Effluent Limitations................................................. 13
Summary of Water Quality-based Effluent Limitations.............................................. 17
Summary of Final Effluent Limitations ...................................................................... 20
F-2
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
As described in section II of this Order, this Fact Sheet includes the legal requirements and
technical rationale that serve as the basis for the requirements of this Order.
Comment [MT38]: Applicable
comments in the main body of the permit
also apply to the fact sheet.
This Order has been prepared under a standardized format to accommodate a broad range of
discharge requirements for DischargerPermittees in California. Only those sections or
subsections of this Order that are specifically identified as “not applicable” have been
determined not to apply to this DischargerPermittee. Sections or subsections of this Order not
specifically identified as “not applicable” are fully applicable to this DischargerPermittee.
I.
PERMIT INFORMATION
The following table summarizes administrative information related to the facility.
Comment [CVW39]: Suggest adding
descriptor F to all tables. Refer to similar
comment in Attachment E.
Table F-1. Facility Information
WDID
DischargerPermittee
Name of Facility
Facility Address
Facility Contact, Title and
Phone
Authorized Person to Sign
and Submit Reports
Mailing Address
Billing Address
Type of Facility
Major or Minor Facility
Threat to Water Quality
Complexity
Pretreatment Program
Reclamation Requirements
Facility Permitted Flow
Facility Design Flow
Watershed
Receiving Water
Receiving Water Type
<Facility name, Facility City>
<Facility Contact Name>, <Title>, <Facility Contact Phone>
<Name>, <Title>, <Phone>
<SAME> or
<Facility Mailing Street Address> <Facility Mailing City, State Zip>
<SAME> or
<Facility Billing Street Address> <Facility Billing City, State Zip>
<Facility Type> (i.e., POTW, Industrial with SIC code, CAFO)
<Major/Minor>
Y/N
<Producer/User>
<Facility Permitted Flow (in million gallons per day)>
<Facility Design Flow (in million gallons per day)>
Comment [CVW40]: Consider
adding guidance to permit writers that
this is the authorized ADWF to the
receiving water and that it is used in
determining permit fees.
Comment [CVW41]: Suggesting
adding guidance to permit writer that this
number may be different from the
permitted flow. Also there may be both
ADWF and PWWF entries. This should
also match the entries in Table 4 of the
main Order.
<enclosed bay, estuary, inland surface water, or Sacramento-San
Joaquin Delta>
A. <Site Owner/Operator> (hereinafter DischargerPermittee) is the <owner and operator
OR operator> of <Name of Facility> (hereinafter Facility), a <Type of Facility>.
F-3
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NPDES NO. CAXXXXXXX
ATTACHMENT F – FACT SHEET
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
[ALTERNATIVE: <Site Owner/Operator> is the <owner and operator OR operator>
of <Name of Facility>, a <Type of Facility>. <Property Owner> owns the property at
<Property Address> on which the Facility is located. Together <Site
Owner/Operator> and <Property Owner> are hereinafter referred to as
DischargerPermittee.]
For the purposes of this Order, references to the “discharger” or “permittee” in
applicable federal and state laws, regulations, plans, or policy are held to be equivalent
to references to the DischargerPermittee herein.
B. The Facility discharges wastewater to <Receiving Water or Waters>, <a water or
waters> of the United States, and is currently regulated by Order <Existing Order
Number> which was adopted on <Existing Order Adoption Date> and <
expired/expires> on <Existing Order Expiration Date>. [USE IF PERMIT HAS
ALREADY EXPIRED: The terms and conditions of the current Order have been
automatically continued and remain in effect until new Waste Discharge Requirements
and NPDES permit are adopted pursuant to this Order.]
C. The DischargerPermittee filed a report of waste discharge and submitted an application
for renewal of its Waste Discharge Requirements (WDRs) and National Pollutant
Discharge Elimination System (NPDES) permit on <Application Date>. [Use the
following sentences as necessary: Supplemental information was requested on
<Supplement 1 Request Date> and received on <Supplement 1 Receipt Date>. A
site visit was conducted on <Site Visit Date>, to observe operations and collect
additional data to develop permit limitations and conditions.]
II.
FACILITY DESCRIPTION
The introduction to this section should include a description of the permitted facility, the types of
operations that generate wastewater, and the types of wastewater discharges to be regulated under
the Order.
A. Description of Wastewater and Biosolids Treatment or Controls
This subsection includes a description of the wastewater treatment or control system and may contain
the following information:
• Design characteristics.
• Treatment capacity.
• Actual flows (e.g., maximum wet weather; average dry weather).
• Description of biosolids/sludge handling practices (if applicable).
B. Discharge Points and Receiving Waters
This subsection includes a description of the existing and any planned discharge point(s) and the
receiving water(s) and should include the following information:
• Discharge Point number(s) with latitude and longitude.
Attachment
F – of
Fact
(Version
2006-1B)
F-4
• Description
theSheet
receiving
water and
hydrologic area.
• Watershed Management Area.
261
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
C. Summary of Existing Requirements and Self-Monitoring Report (SMR) Data
This subsection includes a summary of existing effluent limitations and discharge specifications
from the previous Order and Self-Monitoring Report (SMR) data collected during the term of the
previous Order, including additional studies required in the previous Order, if applicable. The
table below serves as an example and would be repeated for each Monitoring Location where
effluent limitations or discharge specifications apply. Note that the table may need to be adjusted to
accommodate existing effluent limitations bases (e.g., 30-day average).
<Effluent limitations/Discharge Specifications> contained in the existing Order for
discharges from <Describe Discharge Point> (Monitoring Location <Monitoring
Location Number>) and representative monitoring data from the term of the previous
Order are as follows:
Table 2. Historic Effluent Limitations and Monitoring Data
Effluent Limitation
Parameter
Units
Average
Monthly
Average
Weekly
Maximum
Daily
Monitoring Data
(From <Date> – To <Date>)
Highest
Highest
Highest
Average
Average
Daily
Monthly
Weekly
Discharge
Discharge
Discharge
D. Compliance Summary
This section summarizes the Discharger’s compliance with the Order during the last Order term
and may include the following:
• Effluent limit exceedances.
• Other notable Order violations (e.g., failure to submit monitoring reports).
• Violations identified as part of compliance evaluation inspections.
E. Planned Changes
This section includes any planned changes to the facility during the next Order term that may
impact Order development, such as:
• Facility expansion.
• Increased production.
• Product changes.
• Modifications to the wastewater treatment plant
• Other changes to current operations that may impact Order development.
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
III. APPLICABLE PLANS, POLICIES, AND REGULATIONS
This section includes the plans and policies applicable to developing this Order that are not
included in section II of the Order (Findings) and that supplement those findings contained in
section II of the Order. The following provides example language only and does not represent
preferred Order language.
The requirements contained in the proposed Order are based on the requirements and
authorities described in this section.
A. Legal Authorities
This Order is issued pursuant to section 402 of the federal Clean Water Act (CWA) and
implementing regulations adopted by the U.S. Environmental Protection Agency
(USEPA) and chapter 5.5, division 7 of the California Water Code (commencing with
section 13370). It shall serve as a NPDES permit for point source discharges from this
facility to surface waters. This Order also serves as Waste Discharge Requirements
(WDRs) pursuant to article 4, chapter 4, division 7 of the Water Code (commencing with
section 13260).
B. California Environmental Quality Act (CEQA)
Under Water Code section 13389, this action to adopt an NPDES permit is exempt from
Chapter 3 of the provisions of CEQA, Public Resources Code sections 21100 through
21177.
New Sources: If the facility is a new source as defined by the CWA then the requirements of CEQA
must be met (Water Code section 13389) and the above language must be revised to indicate that
CEQA requirements have been met.
For Discharges not regulated under an NPDES permit: Refer to sample language requirements
within APM Chapter 9, item 2, for various discharge conditions.
C. State and Federal Regulations, Policies, and Plans
1. Water Quality Control Plans. The Regional Water Quality Control Board
(Regional Water Board) adopted a Water Quality Control Plan for the <Basin
Name> (hereinafter Basin Plan) on <date> that designates beneficial uses,
establishes water quality objectives, and contains implementation programs and
policies to achieve those objectives for all waters addressed through the plan. In
addition, the Basin Plan implements State Water Resources Control Board (State
Water Board) Resolution No. 88-63, which established state policy that all waters,
with certain exceptions, should be considered suitable or potentially suitable for
Formatted: Highlight
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
municipal or domestic supply. <Provide rationale if such an exception applies.>
Beneficial uses applicable to <Receiving Water(s)> are as follows:
Note: Replace the above language with the following if the Tributary Rule is applicable.
1. Water Quality Control Plans. The Regional Water Quality Control Board
(Regional Water Board) adopted a Water Quality Control Plan for the <Basin
Name> (hereinafter Basin Plan) on <date> that designates beneficial uses,
establishes water quality objectives, and contains implementation programs and
policies to achieve those objectives for all waters addressed through the plan.
The Basin Plan at <Cite Page Number> states that the beneficial uses of any
specifically identified water body generally apply to its tributary streams. The Basin
Plan does not specifically identify beneficial uses for <Receiving Water>, but does
identify present and potential uses for <Downstream Water Body>, to which
<Receiving Water>, via <Intermediate Water Body>, is tributary. These beneficial
uses are <List Beneficial Uses>. In addition, the Basin Plan implements State
Water Resources Control Board (State Water Board) Resolution No. 88-63, which
established State policy that all waters, with certain exceptions, should be
considered suitable or potentially suitable for municipal or domestic supply.
<Provide rationale if such an exception applies.> Thus, beneficial uses
applicable to <Receiving Waters> are as follows:
Comment [MT42]: We do not want
the permits to cite the tributary rule as
that form of WQS setting is suspect.
Table 3. Basin Plan Beneficial Uses
Discharge
Point
001
Receiving Water Name
Beneficial Use(s)
<Receiving water name>
002
<Receiving water name>
<Beneficial Uses; Examples follow if uses have been
qualified under their designation; modify as
applicable>
Existing:
Warm freshwater habitat (WARM); wildlife habitat (WILD),
preservation or rare, threatened or endangered species
(RARE).
Intermittent:
Ground water recharge (GWR), freshwater replenishment
(FRESH), contact (REC-1) and non-contact (REC-2) water
recreation.
Potential:
Municipal and domestic water supply (MUN).
<Beneficial Uses>
Requirements of this Order implement the Basin Plan.
F-7
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
Note: Include the following paragraph for discharges of thermal waste or elevated temperature
waste (defined in the Thermal Plan) to cold and warm interstate and international waters, coastal
waters outside of enclosed bays and estuaries but within California territorial limits, enclosed
bays, estuaries, and coastal lagoons. Other types of discharges to these waters may require
“limitations or additional limitations” defined in the Thermal Plan. Do not include the
paragraph if the Thermal Plan does not apply.
2. Thermal Plan. The State Water Board adopted a Water Quality Control Plan for
Control of Temperature in the Coastal and Interstate Water and Enclosed Bays and
Estuaries of California (Thermal Plan) on May 18, 1972, and amended this plan on
September 18, 1975. This plan contains temperature objectives for surface waters.
<Describe applicability of Thermal Plan requirements to the discharge. For
example, describe if the discharge is a thermal waste, elevated temperature
waste, or other; the type of receiving water in reference to Thermal Plan
definitions; and if the discharge is existing or new. Further note the
objectives/requirements that apply from the Thermal Plan.> Requirements of
this Order implement the Thermal Plan.
3. National Toxics Rule (NTR) and California Toxics Rule (CTR). USEPA adopted
the NTR on December 22, 1992, and later amended it on May 4, 1995 and
November 9, 1999. About forty criteria in the NTR applied in California. On May 18,
2000, USEPA adopted the CTR. The CTR promulgated new toxics criteria for
California and, in addition, incorporated the previously adopted NTR criteria that
were applicable in the state. The CTR was amended on February 13, 2001. These
rules contain water quality criteria for priority pollutants.
4. State Implementation Policy. On March 2, 2000, the State Water Board adopted
the Policy for Implementation of Toxics Standards for Inland Surface Waters,
Enclosed Bays, and Estuaries of California (State Implementation Policy or SIP).
The SIP became effective on April 28, 2000 with respect to the priority pollutant
criteria promulgated for California by the USEPA through the NTR and to the priority
pollutant objectives established by the Regional Water Board in the Basin Plan. The
SIP became effective on May 18, 2000 with respect to the priority pollutant criteria
promulgated by the USEPA through the CTR. The State Water Board adopted
amendments to the SIP on February 24, 2005 that became effective on July 13,
2005. The SIP establishes implementation provisions for priority pollutant criteria
and objectives and provisions for chronic toxicity control. Requirements of this
Order implement the SIP.
5. Alaska Rule. On March 30, 2000, USEPA revised its regulation that specifies when
new and revised state and tribal water quality standards (WQS) become effective for
CWA purposes (40 C.F.R. § 131.21, 65 Fed. Reg. 24641 (April 27, 2000)). Under
the revised regulation (also known as the Alaska rule), new and revised standards
submitted to USEPA after May 30, 2000, must be approved by USEPA before being
used for CWA purposes. The final rule also provides that standards already in effect
and submitted to USEPA by May 30, 2000, may be used for CWA purposes,
whether or not approved by USEPA.
Comment [MT43]: Remove as no
longer applicable in California. All pre2000 WQS have been approved or
disapproved previously.
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
6. Antidegradation Policy. Section 131.12 requires that the state water quality
standards include an antidegradation policy consistent with the federal policy. The
State Water Board established California’s antidegradation policy in State Water
Board Resolution No. 68-16. Resolution No. 68-16 incorporates is consistent with
the federal antidegradation policy, where the federal policy applies under federal
law. Resolution No. 68-16 requires that existing water quality be maintained unless
degradation is justified based on specific findings. The Regional Water Board’s
Basin Plan implements, and incorporates by reference, both the State and federal
antidegradation policies. The permitted discharge must be consistent with the
antidegradation provision of section 131.12 and State Water Board Resolution No.
68-16.
7. Anti-Backsliding Requirements. Sections 402(o)(2) and 303(d)(4) of the CWA
and federal regulations at title 40, Code of Federal Regulations 1 section 122.44(l)
prohibit backsliding in NPDES permits. These anti-backsliding provisions require
that effluent limitations in a reissued permit must be as stringent as those in the
previous permit, with some exceptions in which limitations may be relaxed.
D. Impaired Water Bodies on CWA 303(d) List
This subsection discusses the impaired status of the receiving waters for each of the discharges
regulated under the Order. If impaired, then this section must describe the status of TMDL
development, schedule, and the impact on the Order.
E. Other Plans, Polices and Regulations
IV. RATIONALE FOR EFFLUENT LIMITATIONS AND DISCHARGE SPECIFICATIONS
This section includes the rationale for the effluent limitations that will be included in the Order,
including evaluation of pollutants of concern, calculation of technology- and water quality-based
effluent limitations, specific rationale for each numeric limitation and discussion of any changes to
the final limitations. The example language that follows is not intended to represent preferred
Order language, but is provided as an example only.
The CWA requires point source dischargers to control the amount of conventional, nonconventional, and toxic pollutants that are discharged into the waters of the United States.
The control of pollutants discharged is established through effluent limitations and other
requirements in NPDES permits. There are two principal bases for effluent limitations in
the Code of Federal Regulations: section 122.44(a) requires that permits include applicable
technology-based limitations and standards; and section 122.44(d) requires that permits
include water quality-based effluent limitations to attain and maintain applicable numeric
and narrative water quality criteria to protect the beneficial uses of the receiving water.
1
All further statutory references are to title 40 of the Code of Federal Regulations unless otherwise indicated.
F-9
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
A. Discharge Prohibitions
This subsection includes the rationale for discharge prohibitions.
B. Technology-Based Effluent Limitations
This subsection includes the rationale for technology-based effluent limitations.
1. Scope and Authority
This subsection provides a brief description of the statutory and regulatory requirements for
establishing technology-based effluent limitations.
Section 301(b) of the CWA and implementing USEPA permit regulations at section
122.44, title 40 of the Code of Federal Regulations, require that permits include
conditions meeting applicable technology-based requirements at a minimum, and
any more stringent effluent limitations necessary to meet applicable water quality
standards. The discharge authorized by this Order must meet minimum federal
technology-based requirements based on <Secondary Treatment Standards at
Part 133> or <Effluent Limitations Guidelines and Standards for the XXXX
Category in Part 4XX> and/or < Best Professional Judgment (BPJ) in
accordance with Part 125, section 125.3>.
The following example language for non-municipal discharges is based on the Los Angeles
Regional Water Board permit template.
The CWA requires that technology-based effluent limitations be established based
on several levels of controls:
•
Best practicable treatment control technology (BPT) represents the average of
the best performance by plants within an industrial category or subcategory.
BPT standards apply to toxic, conventional, and non-conventional pollutants.
•
Best available technology economically achievable (BAT) represents the best
existing performance of treatment technologies that are economically achievable
within an industrial point source category. BAT standards apply to toxic and nonconventional pollutants.
•
Best conventional pollutant control technology (BCT) represents the control from
existing industrial point sources of conventional pollutants including BOD, TSS,
fecal coliform, pH, and oil and grease. The BCT standard is established after
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
considering the “cost reasonableness” of the relationship between the cost of
attaining a reduction in effluent discharge and the benefits that would result, and
also the cost effectiveness of additional industrial treatment beyond BPT.
•
New source performance standards (NSPS) represent the best available
demonstrated control technology standards. The intent of NSPS guidelines is to
set limitations that represent state-of-the-art treatment technology for new
sources.
The CWA requires USEPA to develop effluent limitations, guidelines and standards
(ELGs) representing application of BPT, BAT, BCT, and NSPS. Section 402(a)(1) of
the CWA and section 125.3 of the Code of Federal Regulations authorize the use of
best professional judgment (BPJ) to derive technology-based effluent limitations on
a case-by-case basis where ELGs are not available for certain industrial categories
and/or pollutants of concern. Where BPJ is used, the permit writer must consider
specific factors outlined in section 125.3.
Comment [MT44]: Needs to be more
clear that this is not for POTW permits.
The following example language for applying secondary treatment standards to discharges from
POTWs is based on the Colorado River Regional Water Board permit template.
Regulations promulgated in section 125.3(a)(1) require technology-based effluent
limitations for municipal DischargerPermittees to be placed in NPDES permits based
on Secondary Treatment Standards or Equivalent to Secondary Treatment
Standards.
The Federal Water Pollution Control Act Amendments of 1972 (PL 92-500)
established the minimum performance requirements for POTWs [defined in section
304(d)(1)]. Section 301(b)(1)(B) of that Act requires that such treatment works must,
as a minimum, meet effluent limitations based on secondary treatment as defined by
the USEPA Administrator.
Based on this statutory requirement, USEPA developed secondary treatment
regulations, which are specified in Part 133. These technology-based regulations
apply to all municipal wastewater treatment plants and identify the minimum level of
effluent quality attainable by secondary treatment in terms of biochemical oxygen
demand (BOD5), total suspended solids (TSS), and pH.
The following example language for applying equivalent to secondary treatment standards to
discharges from POTWs is based on the Colorado River Regional Water Board permit template.
Following publication of the secondary treatment regulations, legislative history
indicates that Congress was concerned that USEPA had not “sanctioned” the use of
certain biological treatment techniques that were effective in achieving significant
reductions in BOD5 and TSS for secondary treatment. Therefore to prevent
unnecessary construction of costly new facilities, Congress included language in the
1981 amendment to the Construction Grants statues [Section 23 of Pub. L. 97-147]
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
that required USEPA to provide allowance for alternative biological treatment
technologies such as trickling filters or waste stabilization ponds. In response to this
requirement, definition of secondary treatment was modified on September 20, 1984
and June 3, 1985, and published in the revised secondary treatment regulations
contained in section 133.105. These regulations allow alternative limitations for
facilities using trickling filters and waste stabilization ponds that meet the
requirements for “equivalent to secondary treatment.” These “equivalent to
secondary treatment” limitations are up to 45 mg/L (monthly average) and up to 65
mg/L (weekly average) for BOD5 and TSS.
Therefore, POTWs that use waste stabilization ponds, identified in section 133.103,
as the principal process for secondary treatment and whose operation and
maintenance data indicate that the TSS values specified in the equivalent-tosecondary regulations cannot be achieved, can qualify to have their minimum levels
of effluent quality for TSS adjusted upwards.
Furthermore, in order to address the variations in facility performance due to
geographic, climatic, or seasonal conditions in different States, the Alternative State
Requirements (ASR) provision contained in section 133.105(d) was written. ASR
allows States the flexibility to set permit limitations above the maximum levels of 45
mg/L (monthly average) and 65 mg/L (weekly average) for TSS from lagoons.
However, before ASR limitations for suspended solids can be set, the effluent must
meet the BOD limitations as prescribed by 40 section 133.102(a). Presently, the
maximum TSS value set by the State of California for lagoon effluent is 95 mg/L.
This value corresponds to a 30-day consecutive average or an average over
duration of less than 30 days.
In order to be eligible for equivalent-to-secondary limitations, a POTW must meet all
of the following criteria:
•
The principal treatment process must be either a trickling filter or waste
stabilization pond.
•
The effluent quality consistently achieved, despite proper operations and
maintenance, is in excess of 30 mg/L BOD5 and TSS.
•
Water quality is not adversely affected by the discharge. (40 C.F.R. §
133.101(g).)
The treatment works as a whole provides significant biological treatment such that a
minimum 65 percent reduction of BOD5 is consistently attained (30-day average).
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
2. Applicable Technology-Based Effluent Limitations
For non-municipal discharges, this subsection describes the applicable National Effluent
Limitations Guidelines and Standards for the discharge. This subsection provides all applicable
data (e.g., flow, production, etc.) and calculations needed to apply the effluent guidelines. If
applicable, this section would also describe the methodology and results of establishing
technology-based effluent limitations on a case-by-case basis using best professional judgment
(BPJ). If limitations are established using BPJ, this section must discuss the factors specified in
section 125.3 for developing case-by-case limitations.
For municipal discharges (POTWs), this subsection would describe how limitations were
calculated based on Secondary Treatment Standards or Equivalent to Secondary Requirements.
This subsection must include a discussion / summary for each Discharge Point where effluent
limitations apply.
Once the rationale has been provided in this subsection, then the applicable technology-based
effluent limitations should be summarized in a table similar to that shown below (which is for
non-ocean Discharges from POTWs). Note that a table(s) for each Discharge Point should be
prepared. Also note that the table may need to be adjusted to accommodate the limit bases
applicable to the facility.
In accordance with section 122.45(d), there may be instances in which the basis for a limit for a
particular continuous discharge may be impracticable to be stated as a maximum daily, average
weekly, or average monthly effluent limitation per this regulation. Rationale must be provided for
instances when it is impracticable to express the technology-based effluent limitations for a POTW
as an average weekly and an average monthly or, for a non-POTW, as a maximum daily and an
average monthly if the limitations are expressed in other terms. Where the implementation basis of
a limitation is clearly dictated by an effective water quality control plan or statewide policy, it
should be adequate to reference the source for the limitation.
The table below shows for clerical reasons how mass limitations should be shown, when
applicable.
Summary of Technology-based Effluent Limitations
Discharge Point <Discharge Point Name>
Table 4. Summary of Technology-based Effluent Limitations
Parameter
<Parameter
Name>
<Parameter
Units
Average
Monthly
Average
Weekly
Maximum
Instantaneous
Daily
Minimum
Instantaneous
Maximum
<concentration>
lbs/day
<concentration>
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DISCHARGER
FACILITY NAME
Name>
Units
Average
Monthly
Average
Weekly
Maximum
Instantaneous
Daily
Minimum
NPDES NO. CAXXXXXXX
Parameter
NPDES NO. CAXXXXXXX
Instantaneous
Maximum
lbs/day
C. Water Quality-Based Effluent Limitations (WQBELs)
1. Scope and Authority
This subsection briefly describes the statutory and regulatory requirements for establishing water
quality-based effluent limitations.
Section 301(b) of the CWA and section 122.44(d) require that permits include
limitations more stringent than applicable federal technology-based requirements
where necessary to achieve applicable water quality standards. <This Order
contains requirements, expressed as a technology equivalence requirement,
more stringent than secondary treatment requirements that are necessary to
meet applicable water quality standards. The rationale for these requirements,
which consist of <tertiary treatment or equivalent requirements or other
provisions>, is discussed in <reference where discussed in the Fact Sheet>.>
Section 122.44(d)(1)(i) mandates requires that permits include effluent limitations for
all pollutants that are or may be discharged at levels that have the reasonable
potential to cause or contribute to an exceedance of an instream water quality
standard, including numeric and narrative objectives within a standard. Where
reasonable potential has been established for a pollutant, but there is no numeric
criterion or objective for the pollutant, water quality-based effluent limitations
(WQBELs) must be established using: (1) USEPA criteria guidance under CWA
section 304(a), supplemented where necessary by other relevant information; (2) an
indicator parameter for the pollutant of concern; or (3) a calculated numeric water
quality criterion, such as a proposed state criterion or policy interpreting the state’s
narrative criterion, supplemented with other relevant information, as provided in
section 122.44(d)(1)(vi).
Comment: Make same changes as in front portion of permit.
The process for determining reasonable potential and calculating WQBELs when
necessary is intended to protect the designated uses of the receiving water as
specified in the Basin Plan, and achieve applicable water quality objectives and
criteria that are contained in other state plans and policies, or any applicable water
quality criteria contained in the CTR and NTR.
F-14
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
2. Applicable Beneficial Uses and Water Quality Criteria and Objectives
This subsection describes the water quality criteria applicable to the discharge(s) regulated under the
Order based on the applicable beneficial uses described in Section III. This subsection also describes
any applicable site-specific objectives, and any other related data or information necessary for
application of the water quality criteria (e.g., hardness for metals).
• Beneficial uses (refer back to Section III).
• Numeric criteria and objectives (including any site-specific objectives).
• Narrative objectives.
• Available dilution or mixing zone(s).
• Hardness, temperature, pH, etc.
• Translators for metals.
3. Determining the Need for WQBELs
This subsection describes the methodology used to perform a reasonable potential analysis (RPA) for
priority pollutants and non-priority pollutants for non-ocean discharges.
The subsection also describes the data and information used to complete the RPA. Insert additional
tables summarizing the RPA for each Discharge Point, where applicable.
The following two paragraphs are example language for when a WQBEL is required to comply
with an applicable TMDL WLA, thus rendering no need for a reasonable potential analysis for the
pollutant.
The Regional Water Board developed WQBELs for <name pollutant(s)> that have
available wasteload allocations under a Total Maximum Daily Loads (TMDL)
<describe adoption and effective dates>. The effluent limitations for these
pollutants were established regardless of whether or not there is reasonable
potential for the pollutants to be present in the discharge at levels that would cause
or contribute to a violation of water quality standards. The Regional Water Board
developed water quality-based effluent limitations for these pollutants pursuant to
section 122.44(d)(1)(vii), which does not require or contemplate a reasonable
potential analysis. Similarly, the SIP at Section 1.3 recognizes that reasonable
potential analysis is not appropriate if a TMDL has been developed.
This Order contains a WQBEL for <e.g., copper>. The <e.g., copper> limitation
was established based on the available wasteload allocation of <describe the
allocation, e.g., x ppb> for the facility contained in the <name the TMDL>.
<Describe any other relevant calculations that are necessary for permitting
requirements (e.g., translation from dissolved to total metals for end-of-pipe
limitations.)> As required by section 122.44(d)(1)(vii), the Regional Water Board
F-15
272
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
shall ensure there is a WQBEL for <e.g., copper> in the WDRs that is consistent
with the assumptions and requirements of the available wasteload allocation. Based
on the water quality monitoring done at the time of the TMDL adoption, which set the
wasteload allocation at the level necessary to attain water quality standards, the
Regional Water Board has determined that the WQBEL is consistent with the
assumptions of the TMDL. Similarly, compliance with the effluent limitation will
satisfy the requirements of the TMDL.
This subsection describes how concentration and (where calculated) mass-based WQBELs were
calculated. Information presented should include the following:
• General description of calculation procedures
• Discussion of available dilution or determination of mixing zone boundaries and dilution afforded
by the mixing zone
• Calculated waste load allocations based on the applicable criteria and any available dilution or
other modeling, or based on an approved TMDL.
• Effluent limitation calculations (at a minimum, one sample calculation for each type of
concentration-based and mass-based effluent limitation).
Once the rationale has been provided in this subsection, then the applicable WQBELs must be
summarized in a table similar to that shown below. Note that a table(s) for each Discharge Point
must be prepared. Also note that the table may need to be adjusted to accommodate the limit bases
applicable to the facility.
4. WQBEL Calculations
In accordance with section 122.45(d), there may be instances in which the basis for a limit for a
particular continuous discharge may be impracticable to be stated as a maximum daily, average
weekly, or average monthly effluent limitation per this regulation. USEPA and the State Water
Board have determined that for toxic pollutants discharges to non-ocean waters, it is not
practicable to express water quality-based effluent limitations as an average weekly and an average
monthly, and recommend using a maximum daily and an average monthly effluent limitation for
such discharges. Rationale must be provided for instances when it is impracticable to express
water quality-based effluent limitations for a POTW as an average weekly and an average monthly
or, for a non-POTW, as a maximum daily and an average monthly if the limitations are expressed
in other terms. Where the implementation basis of a limitation is clearly dictated by an effective
water quality control plan or statewide policy, it should be adequate to reference the source for the
limitation.
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
Summary of Water Quality-based Effluent Limitations
Table 5. Summary of Water Quality-based Effluent Limitations
Parameter
<Parameter
Name>
<Parameter
Name>
Units
Average
Monthly
Average
Weekly
Maximum
Instantaneous
Daily
Minimum
Instantaneous
Maximum
<concentration>
lbs/day
<concentration>
lbs/day
5. Whole Effluent Toxicity (WET)
This subsection provides the rationale for any proposed effluent limitations or monitoring
requirements for whole effluent toxicity (WET). It also includes discussion of triggers for Toxicity
Identification Evaluations and Toxicity Reduction Evaluations.
D. Final Effluent Limitations
This subsection summarizes the numeric effluent limitations established for each Discharge Point
and provides a rationale for the basis of each limitation. The use of the following table is
discretionary if the development of final effluent limitations would be repetitive of the development of
technology-based effluent limitations and WQBELs already presented (e.g., no further consideration
is needed to determine which type is more stringent). This section also includes a discussion of the
following:
• Summarize anti-backsliding requirements and note any limitations carried over from the previous
Order because of anti-backsliding requirements.
• Discuss any limitations that are less stringent than limitations from the previous Order and explain
how anti-backsliding exception(s) have been met.
• Discuss how the final effluent limitations comply with the anti-degradation policy.
• Discuss the stringency of the final effluent limitations as appropriate.
1. Satisfaction of Anti-Backsliding Requirements
If backsliding is an issue, the Fact Sheet must include the required anti-backsliding analysis
when discussing the rationale for the final effluent limitations.
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DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
<All effluent limitations in this Order are at least as stringent as the effluent
limitations in the previous Order.> or <The effluent limitations in this Order are
at least as stringent as the effluent limitations in the previous Order, with the
exception of effluent limitations for <name pollutants>. The effluent
limitations for these pollutants are less stringent that those in the previous
Order. This relaxation of effluent limitations is consistent with the antibacksliding requirements of the CWA and federal regulations.> <Continue
with a discussion of the rationale as appropriate to the satisfaction of antibacksliding regulations.>
2. Satisfaction of Antidegradation Policy
The Fact Sheet may require an antidegradation analysis when discussing the rationale for effluent
limitations. For example, for a discharge to Tier 2 waters in which degradation of water quality is
proposed, the Fact Sheet must address: (1) public participation; (2) the necessity for degrading
water quality because of important economic or social development in the area in which the
receiving waters are located; (3) assurances that all new and existing point sources achieve the
highest applicable requirements and that all non-point sources achieve all cost-effective and
reasonable BMPs; and (4) water quality is not degraded beyond that which is adequate to fully
protect existing uses.
If Resolution No. 68-16 may be the basis for effluent limitations more stringent than the minimum
applicable federal technology-based pollutant restrictions, this may be an appropriate location in
the template format to provide for a supporting discussion.
Stringency of Requirements for Individual Pollutants
This Order contains both technology-based and water quality-based effluent
limitations for individual pollutants. The technology-based effluent limitations consist
of restrictions on <pollutants listed>. Restrictions on <same pollutants listed or
referenced> are discussed in <reference where discussed in the Fact Sheet>.
This Order’s technology-based pollutant restrictions implement the minimum,
applicable federal technology-based requirements. <In addition, this Order contains
effluent limitations more stringent than the minimum, federal technology-based
requirements that are necessary to meet water quality standards.> <These
limitations are not more stringent than required by the CWA.> OR <These
requirements include some limitations that are more stringent than required by the
CWA.>
If restrictions are not more stringent, use the following language.
Water quality-based effluent limitations have been scientifically derived to implement
water quality objectives that protect beneficial uses. Both the beneficial uses and
18
275
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
the water quality objectives have been approved pursuant to federal law and are the
applicable federal water quality standards. To the extent that toxic pollutant water
quality-based effluent limitations were derived from the CTR, the CTR is the
applicable standard pursuant to section 131.38. The scientific procedures for
calculating the individual water quality-based effluent limitations for priority pollutants
are based on the CTR-SIP, which was approved by USEPA on May 18, 2000.
<Most/All> beneficial uses and water quality objectives contained in the Basin Plan
were approved under state law and submitted to and approved by USEPA prior to
May 30, 2000. Any water quality objectives and beneficial uses submitted to USEPA
prior to May 30, 2000, but not approved by USEPA before that date, are nonetheless
“applicable water quality standards for purposes of the CWA” pursuant to section
131.21(c)(1). <If “Most” is selected above: The remaining water quality objectives
and beneficial uses implemented by this Order (specifically <list Basin Plan
pollutant objectives>) were approved by USEPA on <dates>, respectively, and are
applicable water quality standards pursuant to section 131.21(c)(2).> Collectively,
this Order’s restrictions on individual pollutants are no more stringent than required
to implement the requirements of the CWA.
Consider adding the following model paragraph to complement the above language if
economic data have been submitted.
economic data and the effluent limitations are only as stringent as necessary to
implement federal water quality standards.
On <date>, 2005, the DischargerPermittee submitted economic information
indicating that the cost of complying with this Order would be <$$>. The Regional
Water Board has considered the specific costs identified in the
DischargerPermittee’s submittal. <The DischargerPermittee’s submittal does not
consider more cost-effective means of implementing this Order, such as
source control efforts.> As discussed in <reference where discussed in the
Fact Sheet>, the individual pollutant restrictions are no more stringent than
necessary to implement applicable federal requirements or standards under the
CWA. Relaxation of the effluent limitations is not permissible. Where appropriate,
this Order <or the accompanying Cease and Desist/Time Schedule Order>
provides additional time to achieve the pollutant-specific restriction.
Use the following language if one or more effluent limitations are more stringent than
limitations necessary to implement minimum federal requirements. For example, this
language should be used if effluent limiations more stringent than limitations based on an
existing applicable numeric objective are included in the permit.
This Order contains pollutant restrictions that are more stringent than applicable
federal requirements and standards. Specifically, this Order includes effluent
19
276
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
limitations for <list pollutants> that are more stringent than applicable federal
standards, but that are nonetheless necessary to meet numeric objectives or protect
beneficial uses. The rationale for including these limitations is explained in
<reference where discussed in the Fact Sheet>. In addition, the Regional Water
Board has considered the factors in Water Code section 13241 in <reference where
discussed in the Fact Sheet>.
economic data. However, the effluent limitations are reasonably necessary to protect
beneficial uses and the cost for compliance does not justify failing to protect the beneficial
uses.
On <date>, the DischargerPermittee submitted economic information indicating that
the cost of complying with this Order would be <$$>. The Regional Water Board
has considered the specific costs identified in the DischargerPermittee’s submittal.
<The DischargerPermittee’s submittal does not consider more cost-effective
means of implementing the permit, such as source control efforts.> As
discussed in <reference where discussed in the Fact Sheet>, the individual
pollutant restrictions are reasonably necessary to protect beneficial uses identified in
the Basin Plan, and the economic information related to costs of compliance are not
sufficient, in the Regional Water Board’s determination, to justify failing to protect
beneficial uses. Where appropriate, this Order <or the accompanying Cease and
Desist/Time Schedule Order> provides additional time to achieve the pollutantspecific restriction.
Summary of Final Effluent Limitations
Table 6. Summary of Final Effluent Limitations
Parameter
Units
<Paramete
r Name>
<concentration>
lbs/day
<concentration>
lbs/day
<Paramete
r Name>
Average
Monthly
Average
Weekly
Maximum Instantaneous
Daily
Minimum
Instantaneous
Maximum
Basis
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277
DISCHARGER
FACILITY NAME
Interim Effluent Limitations
This subsection discusses the rationale for any interim effluent limitations contained in the Order.
This section includes appropriate citations from the SIP and regulations, a discussion of the need for
interim effluent limitations, and a demonstration of how interim effluent limitations were calculated.
Comment [MT45]: We suggest that
interim limits be included in the table
with final limits, so all the limits are in
one place with footnotes for when and
how long they apply. See previous
comment in main body of the Order.
If the Order includes a compliance schedule and thus interim limitations, the Order or Fact Sheet
must explain why the Discharger qualifies for a compliance schedule and must complete section
VII.D., Compliance Schedules, of this Fact Sheet. The SIP requires that a Discharger demonstrate
infeasibility to meet the final effluent limitations and submit documentation regarding source control
efforts and other topics.
F. Land Discharge Specifications
This subsection discusses the rationale for the land discharge specifications (and any interim
requirements) contained in the Order. Portions of this discussion that pertain to numeric
requirements will be similar to the discussion of effluent limitations above.
G. Reclamation Specifications
This subsection discusses the rationale for the reclamation specifications contained in the Order.
Portions of this discussion that pertain to numeric requirements will be similar to the discussion of
effluent limitations above.
regulated by other regulatory mechanisms because different enforcement conditions apply
V. RATIONALE FOR RECEIVING WATER LIMITATIONS
This section discusses the rationale for receiving water limitations in consideration of implementation
provisions in the applicable Basin Plan or other Water Quality Control Plan.
A. Surface Water
This subsection discusses the rationale for receiving water limitations for surface water based on
water quality objectives specified in the applicable Basin Plan or other Water Quality Control Plan.
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278
NPDES NO. CAXXXXXXX
E.
NPDES NO. CAXXXXXXX
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
B. Groundwater
This subsection discusses the rationale for incorporating receiving water limitations for
groundwater based on water quality objectives specified in the applicable Basin Plan or other
Water Quality Control Plan, and may be included if, in addition to a discharge to surface water,
there is a discharge affecting groundwater. If there is a likelihood that wastewater will percolate
and enter groundwater from percolation ponds, storage basins, reclamation areas, sludge beds, etc.,
the Regional Water Board should consider including groundwater limitations.
regulated by other regulatory mechanisms because different enforcement conditions apply
VI. RATIONALE FOR MONITORING AND REPORTING REQUIREMENTS
This section provides a discussion and rationale for the monitoring and reporting requirements
contained in the Monitoring and Reporting Program.
Section 122.48 requires that all NPDES permits specify requirements for recording and
reporting monitoring results. Water Code sections 13267 and 13383 authorizes the
Regional Water Board to require technical and monitoring reports. The Monitoring and
Reporting Program (MRP), Attachment E of this Order, establishes monitoring and
reporting requirements to implement federal and state requirements. The following
provides the rationale for the monitoring and reporting requirements contained in the MRP
for this facility.
A. Influent Monitoring
This subsection includes a discussion of the justification for influent monitoring requirements (if
applicable), including changes made from the previous Order; documentation of any addition or
removal of parameters from the monitoring program; and the evidence supporting the need for
influent monitoring.
B. Effluent Monitoring
This subsection discusses the justification for effluent monitoring requirements, including changes
made from the previous Order and documentation of any additional or removed parameters and the
evidence supporting the need for effluent monitoring. Additional explanations should be provided
for parameters to be monitored that do not have a limitation or other requirement specified in the
Order.
C. Whole Effluent Toxicity Testing Requirements
This subsection discusses the rationale for the required whole effluent toxicity testing requirements
such as the selected test species, endpoint, frequency of testing, etc. The rationale for whole
effluent toxicity limitations should be discussed above in Section IV.B.6.
22
279
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
D. Receiving Water Monitoring
This subsection discusses the justification for receiving water and groundwater (if applicable)
monitoring requirement and includes changes made from the previous Order and documentation
of any additional or removed parameters. The subsection also addresses the evidence supporting
the need for receiving water monitoring.
1. Surface Water
2. Groundwater
E. Other Monitoring Requirements
This subsection discusses the justification for other monitoring requirements in the Order and the
evidence supporting the need for these additional monitoring requirements. Examples of other types
of monitoring that could be required are listed below:
•
•
•
•
•
•
•
•
•
•
Water Supply Monitoring.
Pretreatment Monitoring (POTWs only).
Biosolids/Sludge Monitoring (POTWs only).
Storm Water Monitoring.
Treatment Pond/Lagoon Monitoring.
Thermal Monitoring.
Dioxin Monitoring.
Regional Monitoring Program Monitoring.
Discharge Observations.
Effluent and Ambient Priority Pollutant Scans
VII. RATIONALE FOR PROVISIONS
This section discusses the rationale for the standard and special provisions in the Order.
Justification for Special Studies and Additional Monitoring Requirements, BMPs and Pollution
Prevention Plans, Compliance Schedules, and/or Special Provisions for POTWs must be detailed.
A. Standard Provisions
Standard Provisions, which apply to all NPDES permits in accordance with section
122.41, and additional conditions applicable to specified categories of permits in
accordance with section 122.42, are provided in Attachment D. The
dischargerPermittee must comply with all standard provisions and with those additional
conditions that are applicable under section 122.42.
23
280
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
Section 122.41(a)(1) and (b) through (n) establish conditions that apply to all Stateissued NPDES permits. These conditions must be incorporated into the permits either
expressly or by reference. If incorporated by reference, a specific citation to the
regulations must be included in the Order. Section 123.25(a)(12) allows the state to
omit or modify conditions to impose more stringent requirements. In accordance with
section 123.25, this Order omits federal conditions that address enforcement authority
specified in sections 122.41(j)(5) and (k)(2) because the enforcement authority under
the Water Code is more stringent. In lieu of these conditions, this Order incorporates by
reference Water Code section 13387(e).
B. Special Provisions
1. Reopener Provisions
This subsection explains the rationale for any special reopener provisions that are included in the
Order.
2. Special Studies and Additional Monitoring Requirements
This subsection discusses the rationale for any special studies required in the Order, including for
example:
• Treatability studies.
• Treatment capacity evaluations.
3. Best Management Practices and Pollution Prevention
This subsection discusses the rationale for any special provisions related to developing and
implementing Best Management Practices (BMPs) and/or pollution prevention practices. Examples
include:
• BMP plan development.
• Storm water pollution prevention plans.
• Pollutant Minimization Study (as required in the SIP for bioaccumulative pollutants).
4. Construction, Operation, and Maintenance Specifications
This subsection discusses the rationale for any special provisions in the Order related to operation of
the facility, including for example:
• Requirements for operator certification.
• Requirements to provide back-up equipment.
24
281
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
5. Special Provisions for Municipal Facilities (POTWs Only)
This subsection discusses the rationale for any special provisions specific to POTWs, including:
• Pretreatment program requirements.
• Combined sewer overflow requirements.
• Sanitary sewer overflow requirements.
6. Other Special Provisions
7. Compliance Schedules
This subsection discusses the rationale for, and specific dates associated with, compliance schedules.
For WQBELs for toxic pollutants, the SIP specifies how interim effluent limitations and compliance
schedules are incorporated into the Order. The SIP does not allow interim limitations and
compliance schedules in Orders for new Dischargers. Also, compliance schedules may not be
provided to implement NTR criteria.
VIII. PUBLIC PARTICIPATION
This section provides information necessary to ensure proper public participation. At a minimum,
this section must include the requirements in section 124.8(b)(6) and (7). The following language is
provided as an example only (taken from the Los Angeles Regional Water Board permit template)
and is not intended to represent preferred Order language.
The California Regional Water Quality Control Board, <Regional Water Board Name>
Region (Regional Water Board) is considering the issuance of waste discharge
requirements (WDRs) that will serve as a National Pollutant Discharge Elimination System
(NPDES) permit for <Facility Name>. As a step in the WDR adoption process, the
Regional Water Board staff has developed tentative WDRs. The Regional Water Board
encourages public participation in the WDR adoption process.
A. Notification of Interested Parties
The Regional Water Board has notified the DischargerPermittee and interested
agencies and persons of its intent to prescribe waste discharge requirements for the
discharge and has provided them with an opportunity to submit their written comments
and recommendations. Notification was provided through the following <Describe
Notification Process (e.g., newspaper name and date)>
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282
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
B. Written Comments
The staff determinations are tentative. Interested persons are invited to submit written
comments concerning these tentative WDRs. Comments must be submitted either in
person or by mail to the Executive Office at the Regional Water Board at the address
above on the cover page of this Order.
To be fully responded to by staff and considered by the Regional Water Board, written
comments should be received at the Regional Water Board offices by 5:00 p.m. on
<Date>.
C. Public Hearing
The Regional Water Board will hold a public hearing on the tentative WDRs during its
regular Board meeting on the following date and time and at the following location:
Date:
Time:
Location:
<Public Hearing Date>
<Public Hearing Time>
<Public Hearing Location>
<Public Hearing Address>
<Public Hearing City, State Zip>
Interested persons are invited to attend. At the public hearing, the Regional Water
Board will hear testimony, if any, pertinent to the discharge, WDRs, and permit. Oral
testimony will be heard; however, for accuracy of the record, important testimony should
be in writing.
Please be aware that dates and venues may change. Our Web address is <Regional
Water Board Web Address> where you can access the current agenda for changes in
dates and locations.
D. Waste Discharge Requirements Petitions
Any aggrieved person may petition the State Water Resources Control Board to review
the decision of the Regional Water Board regarding the final WDRs. The petition must
be submitted within 30 days of the Regional Water Board’s action to the following
address:
Office of Chief Counsel
P.O. Box 100, 1001 I Street
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283
DISCHARGER
FACILITY NAME
NPDES NO. CAXXXXXXX
NPDES NO. CAXXXXXXX
E. Information and Copying
The Report of Waste Discharge (RWD), related documents, tentative effluent limitations
and special provisions, comments received, and other information are on file and may
be inspected at the address above at any time between 8:30 a.m. and 4:45 p.m.,
Monday through Friday. Copying of documents may be arranged through the Regional
Water Board by calling <Regional Water Board Phone>.
F. Register of Interested Persons
Any person interested in being placed on the mailing list for information regarding the
WDRs and NPDES permit should contact the Regional Water Board, reference this
facility, and provide a name, address, and phone number.
G. Additional Information
Requests for additional information or questions regarding this order should be directed
to <Permit Writer Name> at <Telephone Number>.
27
284
Chuck Weir
Tri-TAC Chair
2651 Grant Avenue
(510) 278-5910
[email protected]
September 27, 2006
Office of Pesticide Programs (OPP)
Regulatory Public Docket (7502P)
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., N.W.
Submitted via email to: [email protected]
Attn: Docket No. EPA-HQ-OPP-2004-0385
Docket ID Number EPA-HQ-OPP-2004-0385: Permethrin Reregistration
Eligibility Decision
The purpose of this letter is to comment on EPA’s Reregistration Eligibility
Decision (RED) for permethrin, which was made available for public
comment on June 28, 2006 (71 FR 36788). Tri-TAC previously submitted
comments on the preliminary risk assessments for permethrin on October 20,
2005 and we have attached a copy of the letter for your reference. Tri-TAC
reiterates that we are pleased that EPA modeled permethrin impacts on the
sewer system with an Aquatic Exposure, “Down-the-Drain” Assessment and
encourages EPA to include a similar analysis during Registration Review for
all pesticides with a pathway to the sewer. However, Tri-TAC continues to
have concerns about the lack of mitigation measures proposed for
permethrin uses that lead to sewer discharges since EPA’s analysis show
that “aquatic organisms appear to be at acute risk from exposure in surface
waters containing permethrin from wastewater.” 1 As background, Tri-TAC is
a technical advisory group for Publicly Owned Treatment Works (POTWs) in
California. It is jointly sponsored by the California Association of Sanitation
Agencies, the California Water Environment Association, and the League of
California Cities. The constituency base for Tri-TAC collects, treats, and
reclaims more than two billion gallons of wastewater each day and serves
most of the sewered population of California.
Mitigation Measures
In The Agency Revised Risk Assessment for the Reregistration Eligibility
Decision on Permethrin After Public Comments, Phase III (Risk Assessment)
1
EPA, The Agency Revised Risk Assessment for the Reregistration Eligibility Decision on
Permethrin After Public Comments, Phase III, April 5, 2006, page 113
Vice Chair
Jim Colston
Orange County
Sanitation District
P.O. Box 9127
(714) 593-7458
[email protected]
Water Committee
Co-Chairs
Ben Horenstein
East Bay Municipal
Utility District
375 11th St. MS702
Oakland, CA 94623
(510) 287-1846
[email protected]
Terrie Mitchell
Sacramento Regional
County Sanitation Dist.
10545 Armstrong Ave.,
Suite 101
Mather, CA 95655
(916) 876-6092
[email protected]
Air Committee Chair
Jackie Kepke
CH2M Hill
155 Grand Ave., Suite 1000
Oakland, CA 94612
(510) 251-2426
[email protected]
Land Committee
Co-Chairs
Layne Baroldi
Orange County
Sanitation District
P.O. Box 9127
(714) 593-7456
[email protected]
Maura Bonnarens
East Bay Municipal
Utility District
th
375 11 St., MS702
Oakland, CA 94623
(510) 287-1141
[email protected]
CalFOG Workgroup Chair
Trish Maguire
East Bay Municipal
Utility District
th
375 11 St., MS702
Oakland, CA 94623
(510) 287-1727
[email protected]
A technical advisory committee on POTW regulatory and policy issues
285
Docket No. OPP-2004-0385
September 27, 2006
Page 2
Dated April 5, 2006, EPA concludes, after using conservative assumptions for the
removal of permethrin from wastewater treatment and stream dilution factors, that the
risk quotients generated in the Aquatic Exposure, “Down-the-Drain” Assessment
“showed that permethrin residues from this process were a potential acute risk to
aquatic freshwater and estuarine/marine invertebrates, as well as a potential acute risk
to fish.” Tri-TAC questions the justification for EPA’s decision to reregister indoor
products that discharge to the sewers without proposing any mitigation measures or
label language changes in the RED to address the potential problems EPA identified.
Tri-TAC requests that EPA mitigate the risks prior to reregistration of these products.
EPA justified reregistration of products that discharge to sewers in the RED Risk/Benefit
Balancing Analysis by stating “with regard to the treatment of fabrics, permethrin is the
only pesticide registered to pre-treat fabrics, which the Armed Forces Pest Management
Board (AFPMB) strongly supports as a method of preventing many diseases that might
afflict military personal in the field.” However, EPA did not perform a risk/benefit analysis
justifying the reregistration of products used by the general public such as pet products,
impregnated clothing, products to treat clothes, and over the counter and prescription
drugs. Since the production volume for permethrin for specific uses is unpublished and
classified as Confidential Business Information, Tri-TAC is unable to ascertain the
amount of permethrin discharged to Publicly Owned Treatment Works (POTWs) in the
United States from military battle dress compared to the amount of permethrin
discharged from products used by the general public. Tri-TAC assumes that EPA has
deferred the mitigation measures of discharge from products used by the general public
until Registration Review, which will not occur until at least 2010.
The deferred mitigation of these products does not meet EPA’s obligations under the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). POTWs are required to
meet effluent aquatic toxicity standards in National Pollutant Discharge Elimination
System (NPDES) permits, but POTWs do not have the ability to regulate discharges of
pesticides from domestic sources. The risk/benefit analysis standards of FIFRA require
that EPA ensure that pesticides are used in such a manner that Clean Water Act (CWA)
water quality standards are maintained and aquatic habitats are protected. In the
permethrin RED, EPA does not fulfill its responsibility because it does not propose
actions to prevent acute risk to aquatic organisms from the exposure in surface waters
containing permethrin from wastewater.
EPA’s inaction may adversely affect POTWs. Pesticides can potentially interfere with
treatment plant operation, ability to recycle reclaimed water and biosolids, and
compliance with NPDES permit effluent limits. In addition to the adverse environmental
impacts, non-compliance with CWA requirements can be extremely costly for POTWs.
Costs are incurred for identifying the source of the pollutants causing non-compliance,
source control to reduce impacts of the pollutants, and construction, operation, and
maintenance costs to upgrade POTWs with advanced treatment to remove pollutants
286
September 27, 2006
Page 3
that cannot be adequately reduced with source control. Also, when surface water bodies
become impaired by pesticides, POTWs discharging to the water bodies can be
impacted through additional requirements established as part of Total Maximum Daily
Loads (TMDLs) set for the water bodies. The cost to POTWs to comply with TMDLs can
be up to millions of dollars per water body per pollutant.
POTWs are also subject to mandatory minimum penalties for NPDES permit
exceedences. In California, the Clean Water Enforcement Act requires the Regional
Water Quality Controls Boards (Regional Boards) to assess penalties for each NPDES
permit exceedence, whether or not the POTW has the authority to prevent the violation.
In addition, the Regional Boards are required to continue to assess penalties until the
POTW is in compliance with its NPDES permit. 2 Since POTWs do not have the
authority to regulate pesticides, if a pesticide causes an NPDES permit exceedence, the
POTW would be fined until the California Department of Pesticide Regulation, EPA,
and/or Food and Drug Administration (FDA) regulates the pesticide. Nationwide,
POTWs can also be subject to legal action for NPDES violations, thereby causing the
POTW to pay legal fees, settlements, and/or judgments.
Tri-TAC requests that Aquatic Hazard Language be included on pet products, products
to treat clothes, pre-impregnated clothing, over-the-counter and prescribed drugs to
inform the users of these products of the significant risk to aquatic organisms from the
sewer discharge of permethrin.
Aquatic Exposure, “Down-the-Drain” Assessment
In the permethrin RED, EPA did not consider the risks to aquatic organisms from
POTWs that discharge to effluent dominated receiving waters and facilities nationwide
that do not have dilution credits in their NPDES permits. As Tri-TAC mentioned in our
previous comment letter, the Exposure and Fate Assessment Screening Tool (E-FAST)
deliberately excludes facilities with stream dilution factors of 1.0 or less. 3 In order to
address Tri-TAC’s concern, in the Risk Assessment EPA calculated surface water
quality concentrations in the Aquatic Exposure, “Down-the-Drain” Assessment for a
scenario with no stream dilution factors; however, EPA failed to use these numbers in
calculating acute and chronic risk for aquatic organisms.
2
The Clean Water Enforcement Act states that mandatory minimum penalties shall not be assessed if the
violations are caused by one or any combination of (1) an act of war, (2) an unanticipated, grave natural
disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects
of which could not have been prevented or avoided by the exercise of due care or foresight, or (3) an
intentional act of a third party, the effects of which could not have been prohibited or avoided by the
exercise of due care or foresight, see California Water Code, Section 13385(j) for further details.
3
EPA, Exposure and Fate Assessment Screening Tool (E-FAST) Beta Version Documentation Manual,
1999
287
September 27, 2006
Page 4
In addition, as detailed in Tri-TAC’s previous letter, the use patterns of household
products should be considered in the Risk Assessment when estimating the mass
discharge of permethrin to sewers and calculating the high end surface water
concentrations. In the Aquatic Exposure, “Down-the Drain” Assessment, EPA used the
annual production volume of permethrin for household products divided by the U.S.
population to estimate the daily per capita mass discharge rate. This estimate is
appropriate to calculate chronic surface water concentrations.
However, to calculate acute surface water concentrations, a high end mass discharge
rate should be utilized. The high end scenario should model surface water
concentrations following a concentrated permethrin discharge to the sewer system. For
example, EPA could choose to model the high end scenario such as additional loading
of permethrin received at a POTW following an outbreak of head lice at a school. In
response to Tri-TAC’s comments EPA stated, “Since all the amount of permethrin that
could possibly go “down-the-drain” was assumed to go that route, this exercise is not
needed. The E-FAST “down-the-drain” module is designed for national assessments.”
For the high end scenario, EPA should have evaluated a scenario with no stream
dilution factor and a concentrated permethrin discharge to the sewer system. This high
end scenario could occur at any POTW in the nation that discharges to effluent
dominated receiving waters or a POTW that does not have dilution credits in their
NPDES permit; it is not specific to POTWs in California.
Production Volume
Tri-TAC respects the mandate for EPA to keep production volume of permethrin for
specific uses from public disclosure. However, since this data is Confidential Business
Information, Tri-TAC is unable to verify the information. Tri-TAC notes that the
preliminary risk assessments for permethrin which were released for public comment on
August 31, 2005 state that production volumes for pet products, products to treat
clothes, pre-impregnated clothing, over-the-counter and prescribed drugs obtained from
unpublished marking data, partly from the FDA, the technical registrants, and the
Biological and Economic Analysis Division indicated that on an average basis 6,120,000
Kg active ingredient permethrin is used per year. However, the RED released in June
2006, less than a year later, citing the same sources states that 252,000 Kg active
ingredient of permethrin is used per year for the same products.
POTWs have noticed an increase in the publicity of permethrin-impregnated products,
including articles printed in Reader’s Digest and Westways Magazine, as well as
advertisements by clothing manufacturers for permethrin-impregnated clothing.
Alameda County noted in a summer 2006 press release that pre-impregnated clothing
could be used to prevent West Nile virus infections. Tri-TAC expects that more
permethrin-impregnated products have been purchased as a result of the publicity
thereby increasing the discharge of permethrin to sewers and the probability of aquatic
288
September 27, 2006
Page 5
toxicity problems. It is highly unlikely that permethrin use has dropped an order of
magnitude in one year.
The amount of permethrin used per year in the Aquatic Exposure, “Down-the-Drain”
Analysis directly correlates to the risk predicted for aquatic organisms. Tri-TAC requests
that EPA share production volume data with POTWs and state government
environmental agencies, which are also by law able to keep Confidential Business
Information and unpublished marketing data confidential, in order to properly review
Aquatic Exposure, “Down-the-Drain” Assessments performed by EPA.
In conclusion, sewerage agencies need EPA’s assistance to protect surface waters
from contamination from permethrin. POTWs are required by NPDES permits to meet
effluent aquatic toxicity standards; however, POTWs do not have the authority to
regulate pesticides. The Aquatic Exposure, “Down-the-Drain” Assessment conducted
for permethrin clearly shows that aquatic impacts could occur from the use of
permethrin in consumer products and that timely action is needed by EPA to mitigate
the risks. Tri-TAC requests that EPA impose mitigation measure and label language
changes prior to the reregistration of permethrin products for uses that discharge to
sewers.
Tri-TAC appreciates the opportunity to comment on the permethrin RED. If you have
any questions or require additional information, please contact Ms. Preeti Ghuman by
phone at (562) 699-7411, extension 2904 or by email at [email protected].
Sincerely,
Charles V. Weir
Chair, Tri-TAC
c:
Susan Hazen, Acting Assistant Administrator, Office of Prevention, Pesticides and Toxic Substances
Jim Jones, Director, Office of Pesticide Programs
William Diamond, Director, Field and External Affairs Division
Debbie Edwards, Director, Special Review and Reregistration Division
Rick Keigwin, Acting Director, Biological and Economic Analysis Division
Steven Bradbury, Director, Environmental Fate and Effects Division
James Hanlon, Director, Office of Wastewater Management
Claire Gesalman, Acting Branch Chief, Communication Services Br., Field and External Affairs Division
Benjamin H. Grumbles, Assistant Administrator, Office of Water
Geoffrey H Grubbs, Director, Office of Science and Technology
Diane Regas, Director, Office of Wetlands, Oceans, & Watersheds
Wayne Nastri, Administrator, U.S. EPA Region IX
Kathleen Goforth, U.S. EPA Region IX
Raymond Chavira, U.S. EPA Region IX
Debra Denton, U.S. EPA Region IX
Nan Singhasemanon, California Department of Pesticide Regulation
Syed Ali, Division of Water Quality, State Water Resources Control Board
Patricia Gouveia, Division of Water Quality, State Water Resources Control Board
Diane Beaulaurier, Regional Water Quality Control Board
John Bishop, Executive Officer, Los Angeles Regional Water Quality Control Board
C:\My Documents\Tri-TAC\Tri-TAC Letters\2006_09_27_Tri-TAC_Comments_Permethrin_RED.doc
289
Chuck Weir
Tri-TAC Chair
2651 Grant Avenue
(510) 278-5910
[email protected]
Submitted via email to [email protected]
October 20, 2005
Public Information and Records Integrity Branch (7502C)
Office of Pesticide Programs (OPP)
1200 Pennsylvania Ave., N.W.
Attn: Docket No. OPP-2004-0385
Submitted Electronically
Docket ID Number OPP-2004-0385 - Permethrin Preliminary Risk
Assessments
The purpose of this letter is to comment on EPA’s preliminary risk
assessments for permethrin, which were made available for public comment
on August 31, 2005 (70 FR 51790). As background, Tri-TAC is a technical
advisory group comprised of public and private wastewater professionals
focusing on regulatory issues of interest to Publicly Owned Treatment Works
(POTWs) in California. Tri-TAC is jointly sponsored by the California
Association of Sanitation Agencies, the California Water Environment
Association, and the League of California Cities. The constituency base for
Tri-TAC collects, treats, and reclaims more than two billion gallons of
wastewater each day and serves most of the sewered population of California.
Tri-TAC is pleased EPA modeled permethrin impacts on the sewer system
with an Aquatic Exposure, “Down-the-Drain” Assessment in the EFED
Revised Risk Assessment for the Reregistration Eligibility Decision on
Permethrin After Error Corrections Comments from the Registrant, Phase I
(Risk Assessment) dated July 12, 2005. As mentioned on page 39 of the Risk
Assessment, in October 2004, Tri-TAC requested the California Department of
Pesticide Regulation (DPR) require registration of permethrin-treated clothing
due to concerns that laundering pre-treated clothes may cause adverse water
quality impacts. In response to the letter, CPR deferred the issue to EPA.
Since laundering of permethrin-treated clothing is only one of many permethrin
uses that result in discharge of wastewater into the sewer system, EPA has
completed an Aquatic Exposure, "Down the Drain" Assessment to evaluate
the impacts from wastewater containing permethrin for all registered domestic
uses. Tri-TAC encourages EPA to include a similar analysis in future risk
assessments for all pesticides with a pathway to the sewer.
Vice Chair
Jim Colston
Orange County
Sanitation District
P.O. Box 9127
(714) 593-7458
[email protected]
Water Committee
Co-Chairs
Ben Horenstein
East Bay Municipal
Utility District
375 11th St. MS702
Oakland, CA 94623
(510) 287-1846
[email protected]
Terrie Mitchell
Sacramento Regional
County Sanitation Dist.
10545 Armstrong Ave.,
Suite 101
Mather, CA 95655
(916) 876-6092
[email protected]
Air Committee Chair
Jackie Kepke
CH2M Hill
155 Grand Ave., Suite 1000
Oakland, CA 94612
(510) 251-2426
[email protected]
Land Committee
Co-Chairs
Layne Baroldi
Orange County
Sanitation District
P.O. Box 9127
(714) 593-7456
[email protected]
Maura Bonnarens
East Bay Municipal
Utility District
th
375 11 St., MS702
Oakland, CA 94623
(510) 287-1141
[email protected]
CalFOG Workgroup Chair
Trish Maguire
East Bay Municipal
Utility District
th
375 11 St., MS702
Oakland, CA 94623
(510) 287-1727
[email protected]
290
October 20, 2005
Page 2
However, Tri-TAC has concerns about the method used to translate wastewater treatment
plant discharge concentrations from the model into acute and chronic surface water
concentrations. Tri-TAC also has concerns about the lack of mitigation measures proposed
for permethrin uses that lead to sewer discharges, since EPA’s model shows that acute and
chronic levels of concern (LOCs) for aquatic organisms were exceeded as a result of
“down-the-drain” uses of permethrin.
Aquatic Exposure, “Down-the-Drain” Assessment
As stated in the introduction, Tri-TAC appreciates EPA’s efforts in performing an analysis of
the aquatic toxicity resulting from the use of household products containing permethrin and
including these results in the Risk Assessment. Tri-TAC also appreciates EPA providing
details on the methodology, formulas, and calculations used in the Aquatic Exposure,
“Down-the-Drain” Assessment.
In the Risk Assessment, EPA acknowledges that permethrin use in pet products, products
to treat clothes, pre-impregnated clothing, and over-the-counter and prescribed drugs
results in wastewater containing permethrin and that this wastewater is typically discharged
into the sewer system. Since the degree of removal of permethrin from wastewater
treatment has not been thoroughly studied, EPA used an assumption of 52 to 94 percent
removal in the analysis based on the removal obtained by the pretreatment systems of
three pesticide manufacturers. EPA has previously concluded during rulemaking on the
federal categorical discharge standards for pesticide manufacturers that the removal of
permethrin at wastewater treatment facilities is expected to be lower than at facilities using
best available technology economically achievable, which is granulated activated carbon
and resin adsorption for permethrin.1 Even with the conservative assumption of 52 to 94
percent removal from wastewater treatment, EPA concluded: LOCs for acute high risks
were exceeded for freshwater fish and invertebrates and estuarine/marine invertebrates at
all removal levels, LOCs for acute restricted use and endangered species were exceeded
for estuarine/marine fish at all three removal levels, and LOCs for chronic risk were
exceeded for freshwater invertebrates at two removal levels and for estuarine/marine
invertebrates at all removal levels. These results are disconcerting since POTWs are
required to meet effluent aquatic toxicity standards in National Pollution Discharge
Elimination System (NPDES) permits.
The Exposure and Fate Assessment Screening Tool (E-FAST) appears to be an
appropriate screening model to evaluate permethrin exposure from consumer products. TriTAC was able to easily follow the calculations in the Risk Assessment to obtain estimated
surface water concentrations assuming various wastewater treatment removal percentages
and stream dilution factors. However, it is unclear how the high end surface water
1
United States Environmental Protection Agency, Office of Water, Development Document For Effluent
Limitations, Guidelines, Pretreatment Standards, and New Source Performance Standards for the
Pesticide Manufacturing Point Source Category, EPA-821-R-93-016, September 1993, pp.7-92 and 5-93.
291
October 20, 2005
Page 3
concentrations, derived from the 10th percentile stream dilution factor, correspond to the
acute concentrations listed in Table 9b. Likewise, why does the median surface water
concentration from the 50th percentile stream dilution factor equal the chronic surface water
concentration? Tri-TAC requests clarification on the technical basis for assuming the
surface water concentrations obtained from the 10th and 50th percentile stream dilution
factors as acute and chronic concentrations.
Tri-TAC can follow the methodology used by E-FAST to derive stream dilution factors;
however, EPA must consider facilities with stream dilution factors of 1.0 or less in the
Aquatic Exposure, “Down-the-Drain” Assessment. E-FAST deliberately excludes facilities
with stream dilution factors of 1.0 or less, causing POTWs that discharge to effluent
dominated receiving waters to be disregarded. Some POTWs create effluent dominated
discharges, by providing essentially the only source of water to a surface water body during
dry periods. For these POTWs, the NPDES permits do not include a stream dilution factor,
so the POTW must meet the NPDES permit limits at the “end-of-the-pipe.” Since the 50th
percentile and 10th percentile stream dilution factors were 980 and 75 respectively, the
estimated surface water concentrations for a POTW with an effluent dominated discharge
would be significantly greater than the surface water concentrations presented in the Risk
Assessment. Tri-TAC recommends EPA include a scenario without a stream dilution factor
in the Aquatic Exposure, “Down-the-Drain” Assessment to model facilities that discharge to
effluent dominated receiving waters.
Mitigation Measures
As detailed in the Risk Assessment, permethrin is extremely toxic to aquatic organisms.
EPA concluded the “down-the-drain” exposure to aquatic organisms is up to 113 times
higher than the LOCs for acute high risks and seven times higher than the LOCs for chronic
risk; however, EPA has not proposed mitigation measures to reduce the amount of
permethrin discharged into the sewer. EPA has proposed the possible use of buffer zones
to mitigate permethrin exposure to aquatic areas, but the use of buffer zones would not be
effective in reducing the amount of permethrin discharged into the sewer system.
The first and second pages of the Risk Assessment state “EFED has concluded that
permethrin exposure to aquatic systems can result in toxic impact to non endangered and
endangered fish, aquatic invertebrates, as well as possible toxic risk to amphibians. This
compound binds readily to particulate matter and organic carbon in a lake or stream
possibly reducing its bioavailability in this medium after 48 hours. However, as the
particulate bound permethrin settles out of the water column and onto the benthos, there is
an increase in permethrin sediment concentrations that could result in toxic exposure to
benthic and epibenthic aquatic organisms.” In addition, the California Department of Fish
and Game (DFG) aquatic toxicity thresholds for permethrin are 0.03 part per billion (ppb) for
292
October 20, 2005
Page 4
freshwater and 0.001 ppb for saltwater.2 The estimated water concentrations presented in
Table 9b for facilities with 10th and 50th percentile stream dilution factors exceed DFG
thresholds in all instances except the scenario of a 50th percentile stream dilution factor and
94 percent removal efficiency. As previously explained, the assumed removal efficiencies
are conservative and some POTWs do not have the benefit of a stream dilution factor so
surface water concentrations could be significantly higher than DFG thresholds. Tri-TAC
encourages EPA to require mitigation measures during reregistration to limit the amount of
permethrin discharged into sewers.
Use Characterization
EPA did not properly state potential toxic exposure to nontarget wildlife on page 16 of the
Risk Assessment. EPA states that non-agricultural uses should “present minimal risk to
aquatic and terrestrial organisms” because “of their localized use over relatively small
square footage areas.” However this statement is in contradiction to the Aquatic Exposure,
“Down-the-Drain” Assessment conclusion on page 67 of the Risk Assessment that urban
uses “may cause adverse water quality impacts that could possibly impact fish and
macroinvertebrates” and model results showing that domestic wastewater residues in
surface water that may result from household uses and the disposal of consumer products
into wastewater were a potential acute risk to aquatic freshwater and estuarine/marine
invertebrates, as well as a potential acute risk to fish.
EPA also states on page 16 of the Risk Assessment “The concern is diminished even more
because permethrin has a strong affinity to bind with soils and surfaces and is not likely to
runoff.” Even though permethrin will bind with soil, it is incorrect to assume that washoff
from impervious surfaces in urban areas is unlikely to reach an aquatic system. Washoff
from impervious surfaces in urban areas has the potential to flow into a storm drain and be
directly released into an aquatic system. Tri-TAC requests EPA revise the Use
Characterization section to address these concerns.
Label Recommendations
For a permethrin end-use product used for terrestrial uses, the first sentence of the label
should include language notifying the user that permethrin is toxic to aquatic organisms.
The first sentence of the label should be revised to state, “This pesticide is toxic to aquatic
organisms, honey bees, and other beneficial insects.”
2
State of California Department of Fish and Game, Hazard Assessment of the Synthetic Pyrethroid
Insecticides Bifenthrin, Cypermethrin, Esfenvalerate, and Permethrin to Aquatic Organisms in the
Sacramento-San Joaquin River System, 2000. Available on the DPR web site at
www.cdpr.ca.gov/docs/sw/hazasm/hazasm00_6.pdf.
293
October 20, 2005
Page 5
Comment Period
In the Overview of Permethrin Risk Assessment dated August 2005, EPA states that
“Permethrin is one of the most used active pesticide ingredients, registered for use on
numerous food/feed crops, livestock and livestock housing, modes of transportation,
structures, buildings (including food handling establishments), and for residential uses.”
However, in the Federal Register, EPA proposes to develop a Registration Eligibility
Decision for permethrin through a modified 4-phase public participation process with one
public comment period. Since this reregistration decision is far-reaching, Tri-TAC urges
EPA to add another public comment period of at least 60 calendar days.
In conclusion, sewerage agencies need EPA’s assistance to protect surface waters from
contamination from permethrin. POTWs are required by NPDES permits to meet effluent
aquatic toxicity standards; however, Tri-TAC members do not have the authority to regulate
pesticides. The Aquatic Exposure, “Down-the-Drain” Assessment conducted for permethrin
clearly shows that aquatic impacts could occur from the use of permethrin in consumer
products. Tri-TAC requests that during reregistration EPA investigate options to reduce
permethrin discharge into sewers.
Tri-TAC appreciates the opportunity to comment on the permethrin preliminary risk
assessments. If you have any questions or require additional information, please contact
Ms. Preeti Ghuman by phone at (562) 699-7411, extension 2904 or by email at
[email protected].
Sincerely,
Charles V. Weir
Chair, Tri-TAC
c:
Susan Hazen, EPA Office of Prevention, Pesticides and Toxic Substances
Jim Jones, EPA Office of Pesticide Programs
Steven Bradbury, EPA Environmental Fate and Effects Division
James Hanlon, EPA Office of Wastewater Management
Benjamin H. Grumbles, EPA Office of Water
Wayne Nastri, U.S. EPA Region IX
Raymond Chavira, U.S. EPA Region IX
Syed Ali, State Water Resources Control Board
Bill Johnson, State Water Resources Control Board
294
Air Committee Info Item
TECHNICAL MEMORANDUM
Summary Analysis of California Assembly Bill 32,
California Global Warming Solutions Act of 2006
The California legislature recently approved AB 32, a bill that will create a new regulatory
regime to combat global warming. Once signed by Governor Schwarzenegger, the
“California Global Warming Solutions Act of 2006” (Act) will establish the first
comprehensive greenhouse gas (GHG) regulatory program in the United States. This
program will regulate GHG emissions from industries in the State and will likely affect
business and the economy throughout the nation. The legislation will become effective on
January 1, 2007.
The Act will regulate all public and private entities that produce greenhouse gases. The
legislation defines greenhouse gases as carbon dioxide, methane, nitrous oxide,
hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. The Act does not stipulate
control measures for these gases; rather the legislation establishes a statewide emissions
limit for greenhouse gases measured in tons of carbon dioxide equivalents per year. The
emissions limit will be equivalent to the statewide GHG emissions level in 1990. The
California Air Resources Board (ARB) must develop an implementation plan to achieve this
limit by 2020. It is estimated that current emissions will need to be reduced by
approximately 25% to achieve this target.
As written, the legislation is relatively general. The details of the program are to be
elaborated through rule-making by the ARB. However, the Act establishes a number of
important deadlines related to mandatory GHG emissions reporting requirements, adoption
of enforceable emission limits, and development of a State “scoping plan” to achieve
emissions reductions by 2020. Each of these items is discussed below.
Mandatory GHG Emissions Reporting Requirements
The ARB is required to adopt regulations for reporting and verification of GHG emissions
by January 1, 2008. The regulations must first address the “sources or categories of sources
that contribute most to statewide emissions.” Significantly, the regulations must also
account for GHG emissions “from the generation of electricity delivered to and consumed in
California, accounting for transmission and distribution line losses, whether the electricity is
generated in state or imported.”
The Act stipulates that the ARB should incorporate the standards of the California Climate
Action Registry (Registry) to the maximum extent feasible. The Registry was established by
Senate Bill (SB) 527, enacted in October 2001 as a voluntary program to reduce GHG
emissions in the State (codified as Chapter 6 of Part 4 of Division 26 of the California Health
and Safety Code). It is likely that the ARB regulations for reporting and verification will
resemble the Registry’s current program.
The Act stipulates that any entity that has voluntarily participated in the Registry reporting
program by December 31, 2006 will not be required to “significantly alter their reporting or
verification program” to meet new ARB requirements. In addition, companies will receive
295
SUMMARY ANALYSIS OF CALIFORNIA ASSEMBLY BILL 32
CALIFORNIA GLOBAL WARMING SOLUTIONS ACT OF 2006
credit for any reduction measures taken prior to adoption of specific regulations under the
Act.
Statewide GHG Emissions Limits
By January 1, 2008, the ARB is required to “determine what the statewide greenhouse gas
emission level was in 1990,” based on the ARB’s evaluation of the “best available scientific,
technological, and economic information on greenhouse gas emissions.” The ARB must then
approve that level as the statewide limit to be achieved by 2020. The ARB must hold public
workshops and provide an opportunity for public comment prior to adopting this level.
The Act requires the ARB to publish a list of “discrete early action greenhouse gas reduction
measures” by June 30, 2007, and formally adopt these measures as enforceable regulations
by January 1, 2010. These are early action measures that can be implemented prior to the
formal emission reduction measures the ARB will adopt by regulation before January 1,
2011.
State Scoping Plan
The ARB must develop a scoping plan by January 1, 2009 to achieve “the maximum
technologically feasible and cost-effective greenhouse gas emission reductions from sources
or categories of sources” by 2020. The ARB must consult with other state agencies
(including the Public Utilities Commission and the State Energy Resources Conservation
and Development Commission), as well as other organizations to develop this plan. The
Act requires the ARB to take into account the relative emissions contribution of different
sources and source categories and specifies that the ARB must “recommend a de minimis
threshold of greenhouse gas emissions below which emission reduction requirements will
not apply.”
The Act requires the ARB to implement the emissions reduction measures identified in the
Plan through formal regulation before January 1, 2011, with the regulations becoming
enforceable on January 1, 2012.
The Act authorizes, but does not require, the ARB to establish a system of market-based
declining annual aggregate emissions limits by January 1, 2011, to be applicable from
January 1, 2012. This type of system is commonly called a cap-and-trade program. Any
market-based program must be designed to prevent an increase in emissions of toxic or
criteria air pollutants, and must consider cumulative and localized emissions impacts.
The Act includes a provision allowing the Governor to adjust “the applicable deadlines for
compliance with individual regulations, or for the state in the aggregate” in the event of
“extraordinary circumstances, catastrophic events, or threat of significant economic harm.”
The adjustment period may not exceed one year unless the Governor acts to extend it.
2
296
SUMMARY ANALYSIS OF CALIFORNIA ASSEMBLY BILL 32
CALIFORNIA GLOBAL WARMING SOLUTIONS ACT OF 2006
Timetable
Key implementation dates are summarized in the table below.
Date
Action
December 31, 2006 Deadline to voluntarily participate in the California Climate Action
Registry’s reporting program for emissions.
January 1, 2007
California Global Warming Solutions Act of 2006 becomes effective.
June 30, 2007
ARB must publish a list of “early action” GHG emission reduction measures
that can be implemented by 2010.
January 1, 2008
(1) ARB must adopt regulations for reporting and verification of GHG
emissions.
(2) ARB must determine 1990 GHG emission levels and specify the limit to
be achieved by 2020.
January 1, 2009
ARB must develop a scoping plan to achieve “the maximum technologically
feasible and cost-effective greenhouse gas emission reductions from sources
or categories of sources” by 2020.
January 1, 2010
ARB must adopt regulations to implement the measures identified on the
June 30, 2007 list of discrete early action GHG emission reduction measures.
January 1, 2011
(1) ARB must implement the emissions reduction measures identified in the
Scoping Plan through formal regulation.
(2) ARB may establish a system of market-based declining annual aggregate
emissions limits for sources or categories of sources that emit greenhouse
gas emissions.
January 1, 2012
(1) Operative date of GHG emission limits and emission reduction measures
to be adopted by ARB by January 1, 2011.
(2) Operative date for any market-based “cap-and-trade” system.
2020
State must achieve 1990 levels of greenhouse gas emissions.
Conclusions
The California Global Warming Solutions Act of 2006 commits the State to achieving
significant reductions in GHG emissions over the next decade. The Act’s requirements,
while not fully described, will take effect over the next few years. All entities that have
GHG emissions in the State should monitor and participate in the regulatory process as it
unfolds.
3
297

tri-tac meeting

Transcription

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