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Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428
(502) 875-2845 fax

April 29, 2005

Peter Tennant
Ohio River Valley Water
Sanitation Commission
5735 Kellogg Avenue
Cincinnati, Ohio 45228-1112

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, and appreciates the opportunity to submit these comments concerning the Pollution Control Standards for review by the Commission?s Pollution Control Standards Committee.

KRC offers these general concerns regarding the October 2003 ORSANCO Pollution Control Standards and requests that the PCS Committee consider revisions to address these areas:


Consistent with the purposes of the Clean Water Act and policy of the federal water quality standards that discharges into waterbodies should not occur at concentrations that cause or contribute to the inability to meet water quality standards or to degradation of water quality in downstream segments, the Commission should establish rigorous limits on phosphorus and other nutrient pollutants comprising the Ohio River Basin’s contribution to the “dead zone” in the Gulf of Mexico. Phosphorus discharges from POTWs and from nonpoint agricultural sources, and other excess nutrients and organic wastes are significant contributors to the basin’s loading of excessive nutrients into the Mississippi River and ultimately into the gulf.

Individual 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.

Giving Meaning To General Biological Standard

The existing water quality criteria requires that, outside the mixing zone, “[t]he biological integrity of the Ohio River shall be protected and preserved.” Yet the criteria provide to 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, and whether a proposed discharge would or has failed to protect and preserve the river’s biological integrity.

Reference should be included to acceptable indicators of biological integrity.

Additionally, 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.” The first addition refers to protection of any quality (measured by any chemical parameter) that currently exceeds use criteria; the latter addition recognizes that impaired segments should be restored.

Revising List of Constituents And Acceptable Concentrations

Consistent with the manner in which ORSANCO has approached past standards reviews, the current list of constituents and the ambient standards should be revisited in light of current science. Selenium, expressed as a water quality concentration not to be exceeded rather than as a fish tissue concentration, should be included.

Definition of "Mussel Concentration Area"

KRC supported the inclusion of the definition of "mussel concentration area" in the 2003 revisions and the attendant heightened scrutiny of mussel habitat needs, but believes that the concentration area should be one capable of indication "by the visual observation or other means of at least . . . ."

Other means of identifying a concentration of live mussels in addition to visual observation should be allowed.

Permanent Discharge Markers

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

Dry Weather Discharges

The "no discharge" prohibition is far too lenient in allowing discharges from combined sewers so long as there has been "greater than a trace amount" of rainfall.

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.

Allowing CSOs to discharge without consequence provided that there has been a “greater than trace amount” of rainfall does 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 a capacity, 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.

Net Discharge Credits

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

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.

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.

Mixing Zones

KRC supports the past efforts of ORSANCO to improve and restrict the use of mixing zones for discharges of BCCs (bioaccumulative chemicals of concern). ORSANCO is correct in concluding that mixing zones for bioaccumulative and persistent toxins should be eliminated. 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 suggests 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 toxicity anywhere within that zone. The EPA Water Quality Standards Handbook clarifies that acute toxicity 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 acute toxicity 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."

Allowance of acute toxicity anywhere within a mixing zone is contrary to the Clean Water Act, and ORSANCO is requested to identify the authority for allowing such a discharge to occur. There comes a point where deference to the prerogatives of the individual states must yield in the face of the intent of the Clean Water Act to eliminate water pollution, not to institutionalize toxic discharges and the use of the public’s waters as part of the waste treatment train.

c. 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.

Variance Provision Is Overbroad

As KRC has suggested in past reviews, the provision 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 provisions 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.

Thank you in advance for your consideration of these comments. Please keep us on the mailing list for any proposed revisions that the PCS Committee might publish for public review and comment.


Tom FitzGerald

By Kentucky Resources Council on 05/10/2005 2:03 PM
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