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

Water Discharge Permit For DOE Paducah Gaseous Diffusion Plant Challenged  Posted: October 27, 2006

October 27, 2006

Docket Coordinator
Office of Administrative Hearings
35-36 Fountain Place
Frankfort, Kentucky 40601

David Morgan, Director
Division of Water
14 Reilly Road
Frankfort, Kentucky 40601

Re: Request for Administrative Hearing
Pursuant to KRS 224.10-420(2)
Permit Determination
U.S. Department of Energy Paducah Gaseous Diffusion Plant
Agency Interest #3059
KPDES Permit No. KY0004049

Dear Docket Coordinator:

This letter petitions the Cabinet for an administrative hearing on the Division of Water’s final determination of September 29, 2006 approving issuance of a Kentucky Pollutant Discharge Elimination System (KPDES) Permit to the United States Department of Energy (DOE), Paducah Remediation Services, LLC (PRS) and Uranium Disposition Services, LLC (UDS) authorizing discharges from the Paducah Gaseous Diffusion Plant Depleted Uranium Hexafluoride Conversion Facility through Outfalls 001, 015, 017 to Bayou Creek and through Outfall 019 to an unnamed tributary of Little Bayou Creek. For the reasons stated below, Petitioner Kentucky Resources Council, Inc., is aggrieved, within the meaning of the relevant statues and regulations, by the final determination to issue the KPDES permit, and that final determination is contrary to law and fact.

Jurisdictional Statement

1. This petition is filed pursuant to KRS 224.10-420(2), which provides in relevant part that:

Any person not previously heard in connection with the . . . making of any determination arising under this chapter by which he considers himself aggrieved may file with the cabinet a petition alleging that the order or final determination is contrary to law or fact and is injurious to him, alleging the grounds and reasons therefore, and demand a hearing. . . . The right to demand a hearing pursuant to this section shall be limited to a period of thirty (30) days after the petitioner has had actual notice of the order or final determination complained of, or could reasonably have had such notice.

KRS 224.10-420(2).

2. The determination complained of herein is the issuance of a KPDES permit, which action is an “order or final determination” within the meaning of KRS 224.10-420(2) for which administrative review is available, since the statute specifically references the “issuance. . . of a permit” as being within the ambit of “order or final determination.”

3. This petition for hearing is timely filed, since it is filed within thirty (30) days of September 29, 2006, the date of issuance of the permit and the date of the “response to comments” letter sent to commenters by first-class mail by the Respondent Division of Water. As such, it falls within the time frame for administrative review under KRS 224.10-420(2), which allows up to thirty (30) days after petitioner has actual notice or could reasonably have had actual notice of the final determination.

Petitioner’s Interest

The person requesting the hearing on the above-mentioned permit determination(s) is the Kentucky Resources Council, Inc. (KRC), a non-profit, environmental advocacy organization incorporated under the laws of the Commonwealth of Kentucky and dedicated to prudent use and conservation of the natural resources of the state. KRC requests this hearing on behalf of a member of KRC who owns property adjacent or near to the Paducah Gaseous Diffusion Plant, and on behalf of KRC members whose use and enjoyment of their property and of the water resources downstream of the plant property has been and will be adversely affected by the failure of the KPDES permit to require the facility to properly control, manage, treat and dispose of wastewaters from the facility. Specifically and without limitation, KRC’s members who are adversely affected and aggrieved by the Cabinet’s final determination include:

a. Ron Lamb, a landowner whose property is adjacent to the Paducah Gaseous Diffusion Plant (PGDP) facility and who resides at 10970 Ogden Landing Road, Kevil, Kentucky 42053. Mr. Lamb’s property has been contaminated with what Mr. Lamb believes to be releases of hazardous substances, pollutants and contaminants that have migrated from the facility onto the land and into the groundwater beneath the Lamb property. To the extent that the KPDES permit does not properly control and minimize pollutant discharges from the facility, Mr. Lamb’s ability to use and enjoyment of the downstream water resources will be adversely affected.

b. Mark Donham, RR #1, Box 308, Brookport, IL, 62910, is a former member of the PGDP Citizens Advisory Board, and resides some sixteen miles downwind of the PGDP facility. Mr. Donham previously enjoyed the use of local streams, including Little and Big Bayou Creeks. He has visited the western Kentucky wildlife management area and has hiked Big Bayou Creek, and intends to do so again within the next year. He uses and enjoys the aquatic resources near the facility, and his past and future use and enjoyment would be adversely affected by the releases of pollutants from the facility if, as KRC believes, the KPDES permit does not require control and minimization of pollutant discharges as required by law.

KRC submitted comments concerning the draft KPDES permit on September 28, 2006. A copy of those comments is attached to this Petition for Hearing, and is incorporated herein by reference.

ERRORS ALLEGED AND GROUNDS FOR HEARING

Specifically, and without limitation, Petitioner KRC states that the Cabinet’s action approving the KPDES permit was arbitrary, capricious, and otherwise contrary to and inconsistent with law and fact for these grounds and reasons:

1. The KPDES Permit Failed To Provide For Sufficient Sampling, Monitoring And Permit Limitations Must Be Established For Basin C-613 To Address Sources Other Than Stormwater

As an initial matter, the KPDES permit application (and consequently, the draft permit) failed to properly identify the nature of the wastewaters being discharged into the C-613 basin, and should have been rejected as being administratively incomplete until the applicant corrected the discharge descriptions for C-613 to accurately reflect the use of the basin for “treatment” of seven waste streams in addition to stormwater runoff, and provides complete characterization of the composition of the wastewaters from that basin and available analytical data on the composition of the various combinations of those waste streams.

Characterized as “C-613 Northwest Corner Stormwater Collection Basin” in the permit application, the Fact Sheet described the basin as receiving “runoff from the C-746-A Metals Recovery, C-746-B Waste Storage, C-747-A Burial Grounds and the C-746 and C-747 Scrap Yards.”

In fact, the applicant was aware that a number of other wastewater streams that are not stormwater runoff from the northwest corner of the facility (scrap yard) are also occasionally diverted to the C-613 basin that are not stormwater; various wastewaters generated by the remediation activities and waste management activities at the plant, for which the applicant sought and has received approval from the Division of Hazardous Waste to be routed into that basin for “treatment” and subsequent commingling and discharge through Outfall 1.

The C-613 sediment basin, referred to in a somewhat grandiose manner as “the C-613 Treatment System” has, according to public records reviewed by KRC, been utilized to dispose of a wide range of wastewaters in addition to site runoff, including monitoring well purge water, groundwater sampling equipment decontamination water, drilling rig decontamination water, well development water from well rehabilitation activities, water decanted from stored wastes, rainwater from within secondary containment areas, and “treated wastewater in which suspended solids remain to be treated.” These seven wastewater streams were authorized for “treatment” in C-613 by the Hazardous Waste Branch on March 24, 2006, apparently without submittal of a complete characterization of the wastewaters beyond the description provided above and the representation by the applicant that the wastewaters needed treatment only for sedimentation.

According to DOE’s own correspondence to EPA and the State Division of Waste Management on October 14, 2005, the C-613 basin is simply that – a sediment basin designed to “allow[ ] suspended solids to settle out, thereby reducing the potential that radiologically contaminated sediments will be discharged.” The water so “treated” is then discharged through Outfall 1.

There is no doubt that given the remediation and waste storage processes that generate the seven categories of wastewaters described above, the use of C-613 to treat those waste streams (in addition to the runoff from areas which might itself carry solid and dissolved contaminants) results in the introduction into that basin of waste fluids containing both an array of radioactive contaminants and RCRA mixed wastes, some of which are in dissolved and others in a particulate state.

There is no question either that some of the waste streams that were authorized to be commingled for “treatment” in basin C-613 are properly characterized as “leachate” since they are derived from “water decanted from stored wastes.”

Absent a thorough characterization of each of the source waters (which may be highly variable depending on the location of the well, the type of contamination encountered in drilling, the type of waste stored in containment that might have leaked into the collected containment dike rainfall, etc.), it is impossible for the agency to state with any confidence whether the detention of those wastestreams in a sediment basin will reduce the potential for discharge of radiologically contaminated wastewater, or for that matter, chemically contaminated wastewater. Sediment basins, depending on design flow, detention time, and other characteristics, have a limited capacity to treat settleable and suspended solids, but are neither designed nor capable of capturing that fraction of metals, chemicals and radionuclides that remain in dissolved state and are not sorbed to large suspended and settleable solids, or which are sorbed to particles of a smaller diameter or nature (such as very small colloidal particles) that the sedimentation pond does not effectively settle absent addition of flocculants or other treatment enhancements.

It is also impossible for the permittee to know when and if “enhanced settling by chemical treatment” will be required unless, during each event where wastewaters from the seven different processes identified in the March 24, 2006 are routed to the basin for treatment, sampling is conducted of the mixed basin contents prior to discharge in order to determine whether the discharge into Outfall 1, individually or in combination with the other waste streams being mixed for discharge, will violate specific applicable numerical in-stream values or might violate narrative or toxicity-based water quality standards.

In order for the agency to have any rational basis for authorization of a discharge from Outfall 1 that includes the C-613 Basin discharge:

a. The permit applicant should have been required to fully characterize each of the waste streams proposed for “treatment” by the basin (in addition to the stormwater runoff), and should be required to pretreat or find other methods for treatment of those waste streams that cannot be treated to meet categorical or water-quality based standards through sedimentation controls;

b. Appropriate monitoring conditions should have been imposed, in conjunction with the treatment requirements, to assure that any contamination is being properly treated and managed prior to discharges from that basin through Outfall 1;

c. Each time that Basin C-613 is utilized for management of wastewaters other than runoff from the northwest corner of the property, effluent sampling prior to any pumping of the effluent from the basin should have been required in order to demonstrate and document the efficacy of the “treatment” in meeting numerical and narrative limits and toxicity restrictions for both sediments and for dissolved radionuclides and other constituents;

d. Given the limited capability of the sedimentation basin (10-year, 24-hour design), restrictions should have been imposed preventing the use of the sediment detention basin in the event of anticipated rainfall events or within a 24-hour period after such events, and a schedule for removal of sediments and proper characterization and disposal of those sediments must be included to assure that sufficient detention time is maintained;

e. Representative sampling should have been required for each discharge component of the waste stream prior to discharge from the structure or process and prior to commingling, as well as of the commingled wastewaters, in order to assure that the sampling is truly representative and that the sampling is not “managed” to meet compliance requirements by ceasing certain discharges in order to improve the quality of the mixed discharge; and

f. A full array of radionuclide sampling should have been required for runoff from industrial process areas. KDWM has some data on the concentration and speciation of radionuclides in the basin discharges and should be consulted in identifying parameters and setting reporting limits. In addition to uranium and technetium, neptunium and plutonium have been identified in the scrap yard areas, and those radionuclides, as well as known “daughters” should be screened and monitored, and appropriate individual and cumulative limits imposed to prevent water quality violations.

In the absence of sufficient information concerning the qualitative characteristics of the influent to the basin, and the capability of the basin to treat that influent, as well as the chemical and radiological characteristics of the effluent from the basin, issuance of a KPDES permit authorizing commingling of the basin effluent and discharge into a water of the United States is arbitrary and capricious, an abuse of discretion, and contrary to law.

2. The KPDES Permit Should Have Included A Reopener To Address The Relationship to The Solid Waste Landfill Leachate Treatment Facility Permit

As the agency was aware, the settlement of the KRC appeal in the case of Kentucky Resources Council v. EPPC and U.S. Department of Energy, File DWM-27732-042 resulted in agreement by DOE to sample the effluent from the proposed leachate treatment plant for the S and U landfill leachate and to report on the characteristics of the treated leachate.

The permit should have contained specific reopener language requiring, once the results of that leachate sampling are reported to the agency and reviewed, imposition of additional monitoring parameters and effluent limits as needed to assure protection of receiving water quality and biological health of aquatic communities.

Additionally, since the waste streams disposed of in the C-746-U landfill have and will vary considerably in chemical composition, and the resulting leachate will “scour” those different constituents, the full array of parameters identified in the settlement of the solid waste permit appeal should have been required to be prescreened on a semi-annual basis for the leachate treatment plant outfall in order to assure that the treatment system continues to remove both radionuclides and other waste constitutents as needed to protect in-stream water quality and biological integrity.

Finally, the KPDES permit is inconsistent with the above-mentioned C-746-U solid waste landfill permit, which authorizes the treatment of leachate in the new skid-based package treatment plant from the C-746-S and C-746-U landfills only, and does not authorize the commingling of leachate from the closed C-404 hazardous waste landfill. The leachate generated by that plant is a listed hazardous waste containing elevated levels of radioactivity and other constituents that make it uniquely inappropriate for commingling with the leachate from the S and U-landfills and for discharge under this KPDES permit. That waste stream must be separately managed consistent with Part C of RCRA and cannot be commingled with the S and U-landfill leachate for treatment under the solid waste permit or discharge from Outfall 19.

3. The KPDES Permit Failed To Properly Implement Antidegradation Requirements

For purposes of imposing limits on each outfall, the agency must calculate the limits based not on the 7Q10 of 0.00, as is suggested in the permit fact sheet, but rather to take into account the discharge from the other outfalls. For each subsequent outfall into the same receiving stream, the waste loading and the available capacity must be based on an assumption of no natural stream flow and must include the loadings from the discharges from each of the permitted upstream outfalls, in order to properly determine the cumulative impact of the facility discharges and to set limits that are appropriate considering the cumulative loading from these points. The use of a 7Q 10 of 0.00 or a harmonic mean of .50 cfs for Bayou Creek failed to account fully for the fact that under low-flow conditions, each subsequent outfall will be adding to an in-stream flow condition in which the entire flow of the stream will be effluent from the facility, and that the cumulative impact of those combined discharges may exceed the carrying capacity of the stream for both conventional and for toxic pollutants and may cause significant adverse effects in the lower reaches of the receiving stream.

Additionally, for each parameter of the instream water quality that exceeds the minimum standards for the designated use(s), a Tier-II antidegradation review including an alternatives analysis and justification, should have been required to be provided to support any lowering of the water quality for that parameter.

4. The Allowance of A 3-Year Compliance Schedule For Certain Pollutants Was Arbitrary

The proposed 3-year compliance schedule for certain contaminants (total alpha, total beta and uranium) is inconsistent with law and unnecessarily generous. DOE should have been required to come into compliance immediately, and failure to require immediate compliance when the total values are replacing suspended values, constitutes prohibited backsliding for that period during which the standards are not being enforced prior to submission of the compliance schedule.

5. USEC Should Have Been Listed As Co-Permittee On The Permit

USEC, as the operator of the enrichment facility, should have been listed as a co-permittee on the permit.

Additionally, the permit signature page should have been synched with Part I Page I-13 of the permit so that the responsibility of the various parties for compliance with the permit conditions with respect to each outfall is clear and the signatories have specifically acknowledged the responsibility.

6. The Primary Facility Activity Should Be Properly Listed

The primary activity, which is uranium enrichment through isotope separation, should have been listed, since this permit is authorizing discharges from the active facility in addition to remediation. The Fact Sheet inaccurately described the permitting action as one of a “remediation site and associated activities.”

7. Interim Compliance Benchmarks And Reports Should Be Required

While KRC believes that the provision of a three-year compliance schedule for Total Alpha, Total Beta and uranium is arbitrary, capricious and inconsistent with law, to the extent that such a compliance schedule is found to be consistent with law and appropriate for those parameters in this instance, Part I Page I-13 Paragraph B is nonetheless in violation of state regulation for failure to require interim benchmarks and annual reports on compliance in accordance with 401 KAR 5:070 Section 2(1)(c).

8. All Facility Outfalls Should Have Been Listed

All outfalls from the facility should be listed, with explanation on whether they are active and whether discharges are authorized from each of them.

9. Daily Maximum Limits For PCBs and Trichloroethylene Should Be Imposed

Daily maximum limits should have been imposed for PCBs and for trichloroethylene from Outfall 001. The failure to do so is arbitrary and capricious and otherwise inconsistent with law.

10. The Cabinet Failed To Adequately Consider And To Provide An Adequate Statement Of Consideration In Response To Comments Received

401 KAR 5:075 Section 6 provides that any person may submit written comments on the draft permit, and that “[a]ll comments shall be considered in making the final decision and shall be answered as provided in Section 12 of this administrative regulation.”

401 KAR 5:075 Section 12 demands that the final permit decision be accompanied by a “response to comments” which must briefly describe and respond to all significant comments on the draft permit” and must “fully consider all comments[.]”

The final permit decision, rendered on September 29, 2006, less than 24-hours after the close of the public hearing and the comment period on the draft permit, did not fully consider all comments received, nor did the response to comments adequately describe or respond to all significant comments received. This failure is in violation of 401 KAR 5:075 and Petitioner’s procedural due process rights, and deprives this tribunal of an adequate record on which to determine whether the agency’s final determination was consistent with law.

For each and all of these reasons, KRC respectfully requests that a formal adjudicative hearing be scheduled in order to review the Cabinet’s final determination to issue the Kentucky Pollutant Discharge Elimination System (KPDES) Permit for the Paducah Gaseous Diffusion Plant facility, KPDES No. KY0004049, AI No. 3059; that the determination be reversed and the approval of the KPDES permit be set aside and vacated, and for any and all other relief to which Petitioner may appear entitled.

Respectfully submitted,
Tom FitzGerald, Esq.
Kentucky Resources Council, Inc.
P.O. Box 1070
213 St. Clair Street Suite 200
Frankfort, Kentucky 40602
(502) 875-2428

CERTIFICATE OF SERVICE

I hereby certify that two (2) copies of this Request for Hearing were submitted this _____ day of October, 2006 to the Office of Administrative Hearings, 35-36 Fountain Place, Frankfort, Kentucky 40601 and to the Division of Water, 14 Reilly Road, Frankfort, Kentucky, 40601, and that a courtesy copy was served on each of the parties identified on the face of the permit as being authorized to discharge from the Paducah Gaseous Diffusion Plant facility: the United States Department of Energy, P.O. Box 1410, Paducah, Kentucky 42001; Paducah Remediation Services, LLC, P.O. Box 340, Kevil, Kentucky 42053; and Uranium Disposition Services, LLC, 1020 Monarch Street, Suite 100, Lexington, Kentucky 40513, this ____ day of October, 2006.

ATTACHMENT I
KRC COMMENTS ON PROPOSED KPDES PERMIT
SEPTEMBER 28, 2006

Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone
(502) 875-2845 fax
e-mail: fitzKRC@aol.com
www.kyrc.org

September 28, 2006

Larry Sowder, Permit Writer
Division of Water
14 Reilly Road
Frankfort, Kentucky 40601

Re: United States Department of Energy
Paducah Remediation Services, LLC
Uranium Disposition Services, LLC
Paducah Gaseous Diffusion Plant
Depleted Uranium Hexafluoride Facility
West Paducah, Kentucky
KPDES No. KY0004049

Dear Mr. Sowder:

These comments are submitted on behalf of the Kentucky Resources Council, Inc. (KRC), a non-profit environmental advocacy organization providing legal and technical assistance to individuals, organizations, local governments and communities across the Commonwealth on natural resources issues.

KRC submits these comments on behalf of its membership, which includes individuals who own properties adjacent to the DOE Paducah Gaseous Diffusion Plant complex, and other members who use and enjoy the air, land, and water resources of Bayou and Little Bayou Creeks and the waterbodies into which they drain, and who will be adversely affected and aggrieved within the meaning of applicable laws to the extent that any of the proposed permit conditions are removed or weakened in response to comment, and to the extent that additional permit provisions and controls on the discharge of wastewaters from the subject facility are not added to the proposed permit in response to these comments.

DOE and the other applicants have requested reissuance of a KPDES Permit authorizing discharge from Outfalls 1, 15, 17 and 19.

These comments are tendered electronically, and are timely transmitted, being sent in advance of the close of the Public Comment period as established by the public notice indicating that all comments were to be received by September 28, 2006 and that the public hearing would commence at 6 p.m. CST.

Specific comments follow, referenced by topic or permit section as appropriate.

1. Additional Sampling, Monitoring And Permit Limitations Must Be Established For Basin C-613 To Address Sources Other Than Stormwater

As an initial matter, the KPDES permit application (and consequently, the draft permit) fails to properly identify the nature of the wastewaters being discharged into the C-613 basin, and should be rejected as being administratively incomplete unless and until the applicant corrects the discharge descriptions for C-613 to accurately reflect the use of the basin for “treatment” of seven waste streams in addition to stormwater runoff, and provides complete characterization of the composition of the wastewaters from that basin and available analytical data on the composition of the various combinations of those waste streams.

Characterized as “C-613 Northwest Corner Stormwater Collection Basin” in the permit application, the Fact Sheet describes the basin as receiving “runoff from the C-746-A Metals Recovery, C-746-B Waste Storage, C-747-A Burial Grounds and the C-746 and C-747 Scrap Yards.”

In fact, the applicant is aware that a number of other wastewater streams that are not stormwater runoff from the northwest corner of the facility (scrap yard) are also occasionally diverted to the C-613 basin that are not stormwater; various wastewaters generated by the remediation activities and waste management activities at the plant, for which the applicant sought and has received approval from the Division of Hazardous Waste to be routed into that basin for “treatment” and subsequent commingling and discharge through Outfall 1.

The C-613 sediment basin, referred to in a somewhat grandiose manner as “the C-613 Treatment System” is, according to public records reviewed by KRC, being utilized to dispose of a wide range of wastewaters in addition to site runoff, including monitoring well purge water, groundwater sampling equipment decontamination water, drilling rig decontamination water, well development water from well rehabilitation activities, water decanted from stored wastes, rainwater from within secondary containment areas, and “treated wastewater in which suspended solids remain to be treated.” These seven wastewater streams were authorized for “treatment” in C-613 by the Hazardous Waste Branch on March 24, 2006, apparently without submittal of a complete characterization of the wastewaters beyond the description provided above and the representation by the applicant that the wastewaters needed treatment only for sedimentation.

According to DOE’s own correspondence to EPA and the State Division of Waste Management on October 14, 2005, the C-613 basin is simply that – a sediment basin designed to “allow[ ] suspended solids to settle out, thereby reducing the potential that radiologically contaminated sediments will be discharged.” The water so “treated” is then discharged through Outfall 1.

There is no doubt that given the remediation and waste storage processes that generate the seven categories of wastewaters described above, the use of C-613 to treat those waste streams (in addition to the runoff from areas which might itself carry solid and dissolved contaminants) results in the introduction into that basin of waste fluids containing both an array of radioactive contaminants and RCRA mixed wastes, some of which are in dissolved and others in a particulate state.

There is no question either that some of the waste streams that were authorized to be commingled for “treatment” in basin C-613 are properly characterized as “leachate” since they are derived from “water decanted from stored wastes.”

Absent a thorough characterization of each of the source waters (which may be highly variable depending on the location of the well, the type of contamination encountered in drilling, the type of waste stored in containment that might have leaked into the collected containment dike rainfall, etc.), it is impossible for the agency to state with any confidence whether the detention of those wastestreams in a sediment basin will reduce the potential for discharge of radiologically contaminated wastewater, or for that matter, chemically contaminated wastewater. Sediment basins, depending on design flow, detention time, and other characteristics, have a limited capacity to treat settleable and suspended solids, but are neither designed nor capable of capturing that fraction of metals, chemicals and radionuclides that remain in dissolved state and are not sorbed to large suspended and settleable solids, or which are sorbed to particles of a smaller diameter or nature (such as very small colloidal particles) that the sedimentation pond does not effectively settle absent addition of flocculants or other treatment enhancements.

It is also impossible for the permittee to know when and if “enhanced settling by chemical treatment” will be required unless, during each event where wastewaters from the seven different processes identified in the March 24, 2006 are routed to the basin for treatment, sampling is conducted of the mixed basin contents prior to discharge in order to determine whether the discharge into Outfall 1, individually or in combination with the other waste streams being mixed for discharge, will violate specific applicable numerical in-stream values or might violate narrative or toxicity-based water quality standards.

In order for the agency to have any rational basis for authorization of a discharge from Outfall 1 that includes the C-613 Basin discharge:

a. The permit applicant should be required to fully characterize each of the waste streams proposed for “treatment” by the basin (in addition to the stormwater runoff), and should be required to pretreat or find other methods for treatment of those waste streams that cannot be treated to meet categorical or water-quality based standards through sedimentation controls;

b. Appropriate monitoring conditions should be imposed, in conjunction with the treatment requirements, to assure that any contamination is being properly treated and managed prior to discharges from that basin through Outfall 1;

c. Each time that Basin C-613 is utilized for management of wastewaters other than runoff from the northwest corner of the property, effluent sampling prior to any pumping of the effluent from the basin should be required in order to demonstrate and document the efficacy of the “treatment” in meeting numerical and narrative limits and toxicity restrictions for both sediments and for dissolved radionuclides and other constituents;

d. Given the limited capability of the sedimentation basin (10-year, 24-hour design), restrictions should be imposed preventing the use of the sediment detention basin in the event of anticipated rainfall events or within a 24-hour period after such events, and a schedule for removal of sediments and proper characterization and disposal of those sediments must be included to assure that sufficient detention time is maintained;

e. Representative sampling should be required for each discharge component of the waste stream prior to discharge from the structure or process and prior to commingling, as well as of the commingled wastewaters, in order to assure that the sampling is truly representative and that the sampling is not “managed” to meet compliance requirements by ceasing certain discharges in order to improve the quality of the mixed discharge; and

f. A full array of radionuclide sampling should be required for runoff from industrial process areas. KDWM has some data on the concentration and speciation of radionuclides in the basin discharges and should be consulted in identifying parameters and setting reporting limits. In addition to uranium and technetium, neptunium and plutonium have been identified in the scrap yard areas, and those radionuclides, as well as known “daughters” should be screened and monitored, and appropriate individual and cumulative limits imposed to prevent water quality violations.

2. Relationship to Solid Waste Landfill Leachate Treatment Facility Permit

As the agency is aware, the settlement of the KRC appeal in the case of Kentucky Resources Council v. EPPC and U.S. Department of Energy, File DWM-27732-042 resulted in agreement by DOE to sample the effluent from the proposed leachate treatment plant for the S and U landfill leachate and to report on the characteristics of the treated leachate.

The permit should contain specific reopener language requiring, once the results of that leachate sampling are reported to the agency and reviewed, imposition of additional monitoring parameters and effluent limits as needed to assure protection of receiving water quality and biological health of aquatic communities.

Additionally, since the waste streams disposed of in the C-746-U landfill have and will vary considerably in chemical composition, and the resulting leachate will “scour” those different constituents, the full array of parameters identified in the settlement of the solid waste permit appeal should be required to be prescreened on a semi-annual basis for the leachate treatment plant outfall in order to assure that the treatment system continues to remove both radionuclides and other waste constitutents as needed to protect in-stream water quality and biological integrity.

Finally, the KPDES permit is inconsistent with the above-mentioned C-746-U solid waste landfill permit, which authorizes the treatment of leachate in the new skid-based package treatment plant from the C-746-S and C-746-U landfills only, and does not authorize the commingling of leachate from the closed C-404 hazardous waste landfill. The leachate generated by that plant is a listed hazardous waste containing elevated levels of radioactivity and other constituents that make it uniquely inappropriate for commingling with the leachate from the S and U-landfills and for discharge under this KPDES permit. That waste stream must be separately managed consistent with Part C of RCRA and cannot be commingled with the S and U-landfill leachate for treatment under the solid waste permit.

3. Antidegradation Implementation

For purposes of imposing limits on each outfall, the agency must calculate the limits based not on the 7Q10 of 0.00, as is suggested in the permit fact sheet, but rather to take into account the discharge from the other outfalls. For each subsequent outfall, the waste loading and the available capacity must be based on an assumption of no natural stream flow and the flow from the discharges from each of the permitted upstream outfalls, in order to properly determine the cumulative impact of the facility discharges and to set limits that are appropriate considering the cumulative loading from these points. The use of a 7Q 10 of 0.00 or a harmonic mean of .50 cfs for Bayou Creek fails to account fully for the fact that under low-flow conditions, each subsequent outfall will be adding to an in-stream flow condition in which the entire flow of the stream will be effluent from the facility, and that the cumulative impact of those combined discharges may exceed the carrying capacity of the stream for both conventional and for toxic pollutants and may cause significant adverse effects in the lower reaches of the receiving stream.

Additionally, for each parameter of the instream water quality that exceeds the minimum standards for the designated use(s), a Tier-II antidegradation review including an alternatives analysis and justification, must be provided to support any lowering of the water quality for that parameter.

4. Other Comments

a. KRC is concerned that the proposed 3-year compliance schedule for certain contaminants (total alpha, total beta and uranium) is inconsistent with law and unnecessarily generous. DOE should be required to come into compliance immediately, and failure to require immediate compliance when the total values are replacing suspended values, would constitute prohibited backsliding.

b. USEC should be listed as a co-permittee on the permit, as the operator of the enrichment facility. The signature page should be synched with the permit so that the responsibility of the various parties by outfall is clear.

c. The primary activity should be listed, since this permit is authorizing discharges from both the active facility in addition to remediation.

d. Any schedule for compliance exceeding one year should require interim benchmarks and annual reports on compliance, in accordance with 401 KAR 5:070 Section 2(1)(c).

e. All outfalls from the facility should be listed, with explanation on whether they are active and whether discharges are authorized from each of them.

f. Daily maximum limits should be imposed for PCBs and for trichloroethylene.

Thank you for the opportunity to review the draft permit and to submit these comments. KRC requests that in each of these areas the permit be improved to better protect the integrity of receiving waters and to assure appropriate, protective, enforceable conditions limiting the discharges of pollutants from the facility.

Cordially,
Tom FitzGerald
Director


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