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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Opposes Weakening Of Recreational Use Protections In Ohio River; Urges Tighter Standards On Mixing Zones  Posted: June 1, 2006

May 31, 2006

Peter Tennant
Ohio River Valley Water
Sanitation Commission
5735 Kellogg Avenue
Cincinnati, Ohio 45228-1112
ptennant@orsanco.org

Dear Mr. Tennant:

These comments are submitted on behalf of the Board and membership of the Kentucky Resources Council, Inc. (KRC), a non-profit environmental advocacy organization whose membership includes numerous individuals who use and enjoy the water resources of the Ohio River system for a range of beneficial uses and who have an abiding interest in the restoration and enhancement of the water quality of the Ohio and its tributaries. KRC has submitted comments on previous revisions to ORSANCO's Pollution Control Standards, including comments during the Initial Comment Period in March – April 2005, and appreciates the opportunity to submit these comments concerning the Pollution Control Standards for review by the Commission’s Pollution Control Standards Committee.

KRC incorporates by reference as if fully set forth below, the Joint Comments of the Kentucky Waterways Alliance and West Virginia Rivers Coalition, and those submitted by the Kentucky River Watershed Watch, except in those instances where the comments that follow depart from those submitted by those organizations. KRC also incorporates by reference the comments it submitted concerning the Initial Comment Period on suggested revisions to the 2003 standards, dated April 29, 2005. KRC recognizes and appreciates the assistance of Sarah Lynn Cunningham, P.E. in the development of a number of the comments that follow.

I. Issues Raised By KRC During Initial Comment Period

During the Initial Comment Period, KRC identified a number of general concerns and requested that the PCS Committee consider revisions to address several areas. Prior to turning to new issues raised by the proposed 2006 revisions, KRC reviews the earlier comments, replies to ORSANCO’s disposition of comments submitted in the initial comment period, and makes additional recommendations in response to ORSANCO’s decision to accept or reject KRC’s earlier comments.

A. Hypoxia And The Need For Nutrient Limits In The Ohio Basin

KRC had recommended that the Commission should establish rigorous limits on phosphorus and other nutrient pollutants from both nonpoint agricultural and point wastewater treatment sources in order to reduce the Ohio River Basin’s contribution to the “dead zone” (hypoxia) problems in the Gulf of Mexico – a contribution that ORSANCO itself notes makes up some 30% of all excess nutrients in the Mississippi River. KRC recommended also that Individual ORSANCO member states should likewise be required to evaluate the excess nutrient loadings into the Ohio River from their rivers, and to develop plans to implement appropriate instream standards and effluent limits on phosphorus and other nutrients to achieve lower loadings in the Ohio River and its tributaries.

In response, ORSANCO has noted that it is working with the states in the Basin to develop a strategy for nutrient reduction and on the development of numerical nutrient criteria for the Ohio River.

KRC appreciates the commitment from ORSANCO that these activities will “eventually” lead to nutrient limits that will be incorporated into the Commission standards, but urges the Commission to set a specific time frame for proposal and adoption of such numerical limits, and for conclusion of the development and implementation of a nutrient reduction strategy by the Ohio River Sub Basin Committee.

KRC believes strongly that such a strategy must include mechanisms for addressing non-point loadings of excess nutrients to the Ohio River and its major tributaries; otherwise, it’s hard to imagine how the Ohio River will ever meet quality goals. After adding tertiary treatment to municipal wastewater treatment facilities, reducing non-point source pollution is often the most cost-effective remaining method (in terms of pounds reduced per dollar spent) for achieving ambient water-quality improvements. While municipal and industrial dischargers currently under ORSANCO jurisdiction should continue to be challenged to significantly reduce their pollution, we will not achieve a fishable, swimmable Ohio River that does not transport excess pollutants downstream, without reductions from both point and non-point sources.

B. Giving Meaning To General Biological Standard

KRC commented on the need to give substances to the phrase “biological integrity” in the requirement that, outside the mixing zone, “[t]he biological integrity of the Ohio River shall be protected and preserved.” Without criteria to provide an objective benchmark, (whether the use of the Index of Biological Integrity or other appropriate criteria), to measure or gauge the baseline integrity of the receiving segment, there is no way to determine whether a proposed discharge would or has failed to protect and preserve the river’s biological integrity.

KRC appreciates ORSANCO’s commitment to development of numerical biological criteria for the Ohio, and for the methodology for using that criteria to determine attainment of the narrative biological standard. In the meanwhile, an interim methodology, such as the IBI, or other appropriate indicator of biological integrity, should be required to be incorporated into any discharge permit both to set a baseline of biological integrity and to periodically measure impact at the edge of the mixing zone.

KRC also commented that the integrity of the river should not merely be “protected and preserved” but should, consistent with the antidegradation requirements of federal water quality standards, be “safeguarded, protected, preserved and restored.” ORSANCO has proposed to incorporate “safeguarded,” and that proposed inclusion is appreciated; however the Commission response to “restored” is that the interpretation is “under discussion.” KRC urges that, in order to be consistent with federal water quality standards, “restored” be included, and that “restored” be defined to include the attainment of physical, chemical and biological conditions necessary to allow the river to meet the full range of designated uses.

KRC also suggested that consistent with past standards reviews, the current list of constituents and the ambient standards should be revisited in light of current science. Specifically, and without limitation, KRC recommended that selenium, expressed as a water quality concentration not to be exceeded rather than as a fish tissue concentration, should be included. In response, ORSANCO notes that the current ambient standard for selenium has been questioned and that ORSANCO is requesting additional comments on the issue.

As the Commission is aware, water pollution from selenium is a significant and widespread problem, traceable in no small part to the extraction of coal, phosphate, uranium and other minerals, coal-fired generation of electricity, refining of crude oil, and land application of commercial fertilizers. Concerning the proposed EPA shift from an ambient water quality-based standard to a fish-tissue concentration-based standard, a number of scientific experts on selenium have already commented to EPA that these proposed aquatic life criteria are not scientifically justified, and would leave many fish species - and other species dependent on them species – in jeopardy.

KRC urges the Commission not to eliminate an ambient water quality limit for selenium, and instead to tighten the limit to 2 ug/l in order to reflect the “wide array of support from federal, state, university, and international sources” that support a water quality criterion for selenium at that level. See: Hamilton, Steven, and Lemly, A. Dennis; Water-Sediment Controversy In Setting Environmental Standards for Selenium, 44 Ecotoxicity and Environmental Safety 227-235 (1999), and the articles cited therein.

C. Permanent Discharge Markers Should Be Made More Meaningful

KRC supported the 2003 requirement to post a permanent marker for outlet discharging directly to the Ohio River. However, in the initial comments, KRC suggested certain simple additions to the marker in order to make the posting of the marker a meaningful public information and public protection tool.

There is no stronger constituency for clean water than those who value a clean river – for recreation in and on the water, for sports and sustenance fishing and musseling, and for drinking water supplies. Each of these constituents, and in particular those involved in primary contact recreation and sustenance fishing, deserve full and real-time access to information essential to protection of their health.

In order to make the requirement for a permanent marker, contain in Section V.A.3 more meaningful, KRC suggested that the marker should include the following information:

a. The name, address and contact person for the agency that issued the permit, and the web and physical address where the permit may be reviewed;

b. A contact to call if there is a suspected violation of water quality or effluent limits from that outlet;

c. A statement as to whether the discharge includes toxic or bioaccumulative pollutants, and whether a mixing zone has been approved.

The first two suggestions are self-explanatory. As to the third, recreational and fishery users have a right to be informed where the issuing agency has allowed a discharger to utilize public waters to dilute discharges to acceptable levels, in order that the user may avoid that stream reach.

Finally, the rule should be modified to clarify that a permanent marker should be posted even where the discharge is a direct discharge that is a submerged diffuser. In that case the marker should be a buoy-type marker over the diffuser outfall, with a riverbank marker at the point that the discharge structure is first submerged.

Staff’s response to these suggestions was that it would be “impractical to include the additional information on a 2 foot by 2 foot marker. The additional information suggested can be readily obtained from the permitting agency.”

Unfortunately, the justifications for rejecting the proposal fall short of an adequate response. As to the first point, the marker is currently required to have the establishment name, the permit number and the outfall number, all 2 inches in height.

That leaves a LOT of white space that could easily be used to provide the information suggested above, even if all of the information is in 2-inch height format (which it all needn’t be).

The problems with stating that the information can be “readily obtained from the permitting agency” are twofold – first, the Commission hasn’t required that the applicant post the name or contact number or location of the permitting agency, so that the permit number means very little on a river that divides several states since one cannot determine which state and which agency of that state has issued the permit). Second, even if the state agency’s name and location of the records is provided (which ORSANCO has rejected thus far) the lack of information about the nature of the discharge (whether it is toxics or bioaccumulative and whether there is a mixing zone) in real-time deprives the person seeking to fish or engage in recreation of information at a time when they can act on that information to protect their health.

KRC urges the Commission to rethink the rejection of the earlier comments and to include more meaningful basic information on these markers for both surface outfalls and submerged diffusion outfalls.

D. Dry Weather Discharges

KRC commented during the initial round of comments that the proposed language in the "no discharge" prohibition was far too lenient in allowing discharges from combined sewers so long as there has been "greater than a trace amount" of rainfall.

KRC suggested that in order to assure that systems are being properly managed in order to control to the maximum extent the flow-through of combined systems, no discharge shall occur from combined sewer regulating devices unless the permittee demonstrates that the flows from storm events exceed the system design capacity to manage and treat the runoff.

The basis for KRC’s concern was that allowing CSOs to discharge without consequence provided that there has been a “greater than trace amount” of rainfall did nothing to move these communities towards the goals of separating the flows or designing mechanisms to store and treat wet weather CSO flows. Each of these systems has or should have a capacity, to handle and treat their base dry weather loading and an additional volume, and should be required to prevent any discharges from CSOs of untreated or partially treated effluents except where and to the extent that the storm event overwhelms the physical capacity of the system.

In response, ORSANCO has proposed to revise Section V.B.3.a to simply prohibit discharges under dry weather conditions, and has proposed to clarify this section by adding a definition of “dry weather conditions” to Section II.

In general, KRC supports the definition of “dry weather flow conditions.” KRC believes that ORSANCO should clarify that the individual states and localities should take actions to assure that sump pumps discharging groundwater accumulated from beneath buildings during storm events do not discharge into sanitary or combined systems. Such a prohibition would ensure that valuable wastewater collection and treatment infrastructure is not being wasted on conveying and treating clean water and contributing to wet weather overflows, since four such pumps can fill a standard 8-inch collector sewer if pumping simultaneously. In Kentucky, for example, wastewater utilities are held responsible for treating what flows through their sewers, yet it is the State Division of Plumbing that has the authority to order the disconnection of illegally-connected sump pumps.

Similarly, elimination of groundwater infiltration should be considered a priority maintenance or construction issue to be resolved by the utility.

E. Net Discharge Credits

KRC had opposed the language in V.C.2 that would have allowed effluent limits for discharges of industrial wastes including toxic wastes to be based on net discharge of pollutants.

KRC argued that, initially, effluent limitations are technology-based standards applied to wastewater generated by the industrial process, and are not amenable to variance based on the quality of the raw water in an industrial facility. If the new language is intended to establish a water quality provision allowing a facility to ignore bad intake water in establishing discharge limits, it is inconsistent with the Clean Water Act water quality standards, which do not provide such credits.

KRC further argued that if we are to achieve the goals of restoring and maintaining stream health, "background" levels of toxic pollutants present in the water column cannot be ignored, and those withdrawing water for industrial use should be accountable for meeting water quality-based and effluent limits without credit for "bad background." Individual permit-based variances grounded in economic or technological feasibility may be available for an individual permittee, but ORSANCO should not continue this as a generally applicable policy, at the risk of eroding progress in reducing background and historic toxicity.

In response, ORSANCO has proposed revisions in response to EPA Region 3’s comments that the proposed language was not consistent with EPA Guidance On Intake Credits at 40 C.F.R. Part 132 Appendix F, Procedure 5, Sections D-E. ORSANCO has proposed in Section V.C.2. to tighten the language allowing effluent limitations for discharges of industrial wastes including toxics wastes to be based on net discharges of pollutants to incorporate the recommendations of EPA Region 3 and the requirements of 40 CFR Part 132 Appendix F, Procedure 5, Sections D and E.

In response to ORSANCO’s stated hope that the adoption of EPA Region’s 3 recommendations would “at least partially address the concerns raised by KRC,” it does just that – partially addresses the concerns, but still appears to allow a discharger to avoid compliance with categorical effluent limitations.

KRC believes that three additional limitations should be imposed – first, in no instance should a direct discharger be credited with background unless it is demonstrated that the appropriate treatment technologies have been employed for the wastewaters generated by the facility.

Additionally, there is no rational basis for allowing a discharger who claims background credit for an intake pollutant to have a mixing zone prior to demonstrating compliance with the net discharge limit, since if in fact the discharger is not increasing the mass or concentration of the intake pollutant, the strength and volume of that pollutant should be no greater in the receiving water than the ambient concentration. Third, no net discharge should be permitted if a TMDL should be applicable to the discharge. Rather than the language suggested by Region 3, which would allow a net discharge in the absence of a TMDL applicable to the discharge, the net discharge limit should be limited to those cases where no TMDL applicable to that pollutant or discharge should have been developed (i.e. where the river segment is currently in violation of instream standards for the intake pollutant). Since the various state agencies are years behind in the development of TMDLs for impaired segments, the lack of one having been developed should not be the determinant where the segment is in fact impaired.

F. Mixing Zones

KRC provided a number of recommendations concerning the use of mixing zones. KRC has supported the past efforts of ORSANCO to improve and restrict the use of mixing zones for discharges of BCCs (bioaccumulative chemicals of concern), and the past acknowledgment by ORSANCO that mixing zones for bioaccumulative and persistent toxins should be eliminated.

KRC noted that the impact of cumulative loading of persistent organics into the Ohio is evident in contaminated fish tissue and other systemic effects, and use of mixing zones for persistent toxics is uniquely inappropriate because dispersal of the individual wastewater effluent does not protect the stream health overall.

KRC suggested that, in addition to updating the timeframe in Paragraph G to reflect the date of any revised standards and to shorten the remaining period accordingly, these additional provisions be adopted with respect to mixing zones:

a. Mixing Zones should be prohibited for all chemicals identified by EPA as BCCs, including but not limited to those listed.

Such language would allow the prohibition to maintain currency with the development of the science concerning the ecological impacts of compounds now under study, preventing a regulatory gap until the standards are next revised.

b. The definition of mixing zone should be refined to assure that no state approves mixing zones which allows acute species lethality anywhere within that zone. The EPA Water Quality Standards Handbook clarifies that acute lethality anywhere within the mixing zone is not lawful. That prohibition, which is contained explicitly in the Water Quality Standards Handbook, is clear and unambiguous.

The further approval of zones of initial dilution that use public waters to dilute acutely toxic discharges should be immediately eliminated. The use of a "ZID" within a mixing zone is of questionable legality and even more questionable science. The EPA Water Quality Standards guidance document indicates that while acute criteria may be exceeded, at the discretion of a state, within a small zone of initial dilution, acute lethality is not permissible anywhere within a mixing zone. Allowance of such acute toxicity also undercuts efforts to require dischargers of acutely toxic waste streams to utilize treatment, (including waste reduction and in-plant alterations and raw material substitutions), to reduce toxicity rather than allowing dischargers to use "mixing zones," which are an appropriation of public waters for use as private pollution control systems.

The inclusion in 1993 of the language providing that “acute aquatic life criteria apply within the mixing zone” clarified-in-principle that acute toxicity is impermissible and that mixing zones cannot be used to dilute acutely toxic discharges, but was undercut by the inclusion of language in the regulation allowing the individual states "a smaller zone in the immediate vicinity of the point of discharge in which acute criteria are exceeded provided the zone does not impact the water of another state." The language must be modified to include a prohibition against allocating a mixing zone where acute or chronic water quality criteria can be exceeded if such a zone would result in:

i. materials in concentrations that will cause acutely toxic conditions to aquatic life;

ii. materials in concentrations that settle to from objectionable deposits;

iii. floating debris, oil, scum, and other material in concentrations that form nuisances; and

iv. substances in concentrations that produce objectionable color, odor, taste or turbidity or which produce undesirable aquatic life or result in the dominance of nuisance species.

In short, as provided in the 1994 Water Quality Standards Handbook, p. 5-5 – 5-6; the narrative “free froms” apply throughout the mixing zone and cannot be violated in-zone.

Allowance of acute toxicity anywhere within a mixing zone is contrary to the Clean Water Act. The 1994 Water Quality Standards Handbook makes this clear in prohibiting acutely toxic conditions within any mixing zone or ZID, and defining that term as “those [conditions] lethal to aquatic organisms that may pass through the mixing zone.” Id., p. 5-6.

ORSANCO is again specifically requested to amend the Mixing Zone provisions to prohibit state-issued mixing zones resulting in acutely toxic conditions within any ZID or mixing zone. Id. at p. 5-6.

c. KRC further noted that since the ability of the individual states to monitor discharges from diffusers placed on discharge pipes that are submerged below river level, is very limited, the members states should prohibit approval of any point-source discharge permits which rely on submerged diffusers to mix acutely-toxic wastewaters, and should allow the use of submerged discharges only where it is demonstrated that sufficient sampling points will be installed and in-stream sampling and modeling will be undertaken to verify the assumptions projected in applications which seek to use diffusion and public water dilution as a treatment method.

Both in-line and instream monitoring conditions should be required in each permit in order to avoid those submerged diffusers from being the classic example of “out of sight, out of mind.” No agency should issue a permit that is incapable, as a practical matter, of being sampled for compliance.

d. In order to move the nation towards the 1985 goal of zero discharge of pollutants contained in the Clean Water Act, each mixing zone should have a sunset clause requiring the permittee to justify on a 5-year cycle the continued necessity for dilution as a treatment approach based on the infeasibility of in-plant treatment or pollution prevention as a wastewater control technology. Individual dischargers should be required to demonstrate the need for the mixing zone due to lack of alternatives reflecting BPJ for that industrial category.

e. There should be developed a coordinated interstate policy with respect to mixing zones, in order to assure that the granting of mixing zones along a river reach by abutting states does not create undue systemic stress or burden downstream users. Notice should be given by any state to each downstream state, of a proposal to issue any discharge permit containing a mixing zone along the Ohio or any major tributaries to the Ohio.

In response to these suggestions, ORSANCO failed to accept any of the proposed language, and has likewise failed to provide any response to the specific suggestions other than that these points “are under discussion.” ORSANCO is specifically requested to respond to each recommendation above and to provide the legal justification and science underlying the continued sanctioning of zones of acutely lethality from toxic discharges within mixing zones in public waterbodies.

In addition to the comments above, KRC specifically recommends elimination of all of all of the text in VI.C. after “the mixing zone” and replacement of the semicolon with a period. Additionally, to the extent that the Commission continues the illegal practice of sanctioning zones of acute lethality within mixing zones, allowing the discharger to propose other methods for calculating the zone of acute lethality for Commission approval circumvents public review and scrutiny and should not be allowed. Any discharger can propose such methods for review by the Commission during the triennial review process.

Concerning the list of Bioaccumulative Chemicals of Concern (BCC), KRC reiterates a concern that in order to avoid regulatory lag, the list should reference EPA’s list in order to maintain currency, and should also specifically include lead compounds, aldrin, and benzo(a)pyrene.

Finally, KRC opposes the extension of existing mixing zones for BCCs to October 16, 2013, and believes that those discharges should have a sunset clause requiring the permittee to justify on a 5-year cycle the lack of in-plant or add-on treatment or pollution prevention as an effective wastewater control technology. Individual dischargers should be required to demonstrate the need for the mixing zone due to lack of alternatives reflecting MACT for that industrial category and that pollutant. The ten-year period is unrelated to the ability of that discharger to control rather than dilute the BCC, and is arbitrary for that reason.

Particularly for BCCs such as mercury, for which the EPA Office of Inspector General recently noted there exist significant uncertainties regarding the processes of methylation and bioaccumulation, the allowance of a decade more of the use of the public’s water to dilute bioaccumulative toxins in order to avoid fully incorporating into the industrial process the treatment and disposal of the toxic metal, is unconscionable. Monitoring Needed To Assess Impact of EPA’s Clean Air Mercury Rule On Potential Hotspots, EPA OIG Report No. 2006-P-00025, pp. 10-13.

G. Variance Provision Is Overbroad

As KRC has suggested in past reviews and in the Initial Comment Period, the provision in Section VIII. allowing a variance from the Section V standards provided that the use criteria are maintained and the water quality criteria met, is inappropriate. Absent identification of specific bases for requesting and granting a variance, the provision is overbroad and arbitrary, since it requires a statement of specific reasons but gives no criteria for differentiating between a meritorious request and a frivolous one – absent criteria for granting a variance, the decision to grant or deny a variance is necessarily subjective and arbitrary.

No variance from Section V standards should be available that would represent less than application of appropriate technology-based controls and no variance should be allowed that would either cause or contribute to nonattainment of the uses or cause or contribute to a violation of water quality standards including both numerical and narrative use-protection criteria and antidegradation requirements. The variance should be limited to a term of 3 years (to coincide with review of these standards) and must be justified anew prior to any renewal.

Broad allowance of variances based on no discernible standard should not be allowed. KRC urges the Commission to revisit and appropriately define and restrict the availability of any variances.

II. KRC Comments On Proposed 2006 Revisions

In addition to the recommendations provided above on the proposed 2006 revisions to the Pollution Control Standards for discharges to the Ohio River, KRC offers these recommendations, referenced by topic or section:

A. Section II Definitions

It should be clarified in the definition of “mixing zone” that the water quality criteria must be met at the edge of the mixing zone for that criteria. In a given situation, there may be acute, chronic and human health criteria that apply, and there may be more than one applicable mixing zone to a discharge. As written, the new sentence implies that no water quality criteria would have to be met within a mixing zone, when in fact the narrative standards (free froms) have to be met throughout the zone, and the acute standards will be required to be met within a zone smaller than the chronic zone in most cases.

B. Section III. Designated Uses

The qualifying clause that limits the protections of the Ohio River to protections from degradation “that would interfere with or become injurious to these uses,” should be eliminated in order to prohibit degradation of existing quality where that quality exceeds the levels necessary to maintain the use. In those cases, the increment of quality should be protected against degradation – otherwise the concept of safeguarding the uses is deprived of meaning inasmuch as the waters are allowed to degrade until they marginally support the uses.

C. Section IV – Water Quality Criteria

The inclusion of “safeguarded” in B.1. is supported, and should be given meaning in Section III by prohibiting degradation of existing quality, not merely degradation interfering with uses, and should be coupled with restoration as a goal (see above).

C.1. KRC supports the clarification that public water supply use shall be protected at all times.

For the reasons provided in comments submitted by other parties, KRC believes that the proposal to weaken current standards to exempt dischargers from the obligation to meet instream bacteria limits where the river velocity exceeds 2 miles per hour, is arbitrary, capricious, and inconsistent with law.

KRC understands the impetus for the proposed revision - correcting the problems created by a century of combined sewer installations will be a significant challenge to wastewater utilities and expensive for ratepayers. Still, KRC concludes that the proposed revision creates significant problems that warrant additional consideration, and does not support an approach that seeks to “fix” the problem of CSOs by lowering the bar on achievement of instream water quality.

The background summary justifies the weakening of ORSANCO’s bacterial limits in recreational waters based on staff-observed frequency of existing recreational use in the past. This approach employs the following unacceptable philosophical problems:

First, increasing public health risks to the few in order to reduce inconvenience and costs of the many suggests that some folks’ health is expendable. The essence of public health is that everyone’s health deserves protection. There is also a significant generational equity issue, since our unwillingness to expend the resources necessary to cure the CSO problem passes along to the next generation the likely increased costs of addressing an aging infrastructure and the limited recreational opportunities created by our lack of stewardship.

Second, even if we assume that the staff who observed the incidence of recreational use of the Ohio River did so, not just on work days, but also on weekends and holidays, and still found low numbers, the proposed regulations illogically equate “what is” with “what should [or would] be.” Had this thinking been applied to development codes, requirements for designated parking spaces and curb cuts for wheelchair users would never have been adopted, because observations of people with ambulatory disabilities in commercial and institutional settings were infrequent prior to those accommodations. ORSANCO must assume that many more people would choose to recreate in the Ohio River were it cleaner, rather than lowering the threshold for compliance and in so doing, perpetuating the current unhealthy conditions after rainfall events that hamper such use.

Third, as has been demonstrated in the record, significant recreational use occurs in river reaches at and above the river velocity.

Fourth, the establishment of a velocity exemption from having to meet ambient bacteria concentrations has no rational correlation to the capability of that system to control the discharges, since the velocity of the river will depend on precipitation events occurring higher in the watershed of the Ohio rather than in the community who is responsible for controlling its contribution to the river, and lowering the accountability of that community to meet its limits provides an irrational and undeserved break and runs contrary to goal of the CSO Control Policy of meeting the water quality criteria under all flow conditions.

In sum, given the current availability of a mixing zone for wastewater utilities with CSOs, the proposal to use velocity as a factor to suspend (temporarily remove) a current and designated use is unwise, unsupported in fact or law, and contrary to the water quality standards which demand that existing uses be maintained and protected, and that a use attainability analysis precede any effort to downgrade the designated uses of a river segment either on a temporary or permanent basis.

D. Section V – Waste Water Discharge Requirements

B.2. Secondary treatment should be defined as a collection of processes that reduce influent concentrations of BOD5 and TSS by at least 85% prior to discharge. Defining secondary treatment requirements for alternative treatment methods—which are typically significantly cheaper to construct, operate and maintain—at only 65% reduction of those parameters would encourage municipalities and industries to use them instead of more expensive, more effective and—as proposed—more heavily-regulated treatment methods. A lower standard for alternative treatment methods runs counter to achievement of ORSANCO’s ambient water quality goals.

B.3.b. KRC does not support the categorical exemption from compliance with water quality criteria for CSO discharges on the basis of the municipality having an approved, fully-implemented, long term control plan and conducting a Use Attainability Analysis (UAA), for several reasons.

First, it is only where the municipality can demonstrate that the use is not existing and cannot be attained despite imposition throughout the watershed of the most rigorous point and non-point controls, can compliance with the water quality criteria for a designated use be avoided by removing the use. Both of those thresholds should be incorporated.

Additionally, the broad variance allowing alternative bacteria criteria to be set based on an approved UAA and implemented LTCP is not in accord with the goals and purposes of the nine minimum controls in the CSO Control Policy. That policy enunciates as the goal of any long term control plan, the attainment of water quality standards for existing and designated uses, not the waiving of those standards.

Further, the proposal to allow alternative bacteria criteria below that for contact recreation based on an open-ended list of “conditions” justifying such alternative criteria, and allowing such criteria for up to two days following the condition, is overbroad.

To the extent that any discharger to the Ohio mainstem believes that it can make the case for removal of recreation as a designate use, it must show that the use is not existing, and that it cannot be attained by implementing both technology-based controls on point sources and cost-effective and reasonable BMPs for nonpoint sources. ORSANCO should clarify that where the designated uses are actually occurring, no UAA can be used to remove that designated use. Since in significant reaches of the Ohio River, recreational uses in and on the water are being achieved, in such cases, those existing use can be removed or suspended by establishment of weaker bacteria controls for intermittent two-day periods on the occurrence of as yet undefined “conditions.”

C. ORSANCO should require states to adopt pretreatment regulations to govern industrial discharges to their collection systems, including discharge fees that make pretreatment cost-effective when compared to discharging into those systems without pretreatment.

Conclusion

KRC appreciates the consideration that was given to KRC’s comments during the Initial Comment Period, and requests that these comments be likewise evaluated and that specific responses be provided. KRC appreciates also the decision of the Commission to schedule additional hearings on the proposed 2006 Revisions to the Pollution Control Standards for Discharges top the Ohio River.

Thank you in advance for your consideration of these comments.

Sincerely,

Tom FitzGerald
Director


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