Hello Susan. Regarding your questions below, see my responses in red.
From: Susan Hansen [mailto:foxglovefarm@inbox.com]
Sent: Tuesday, July 11, 2017 12:19 PM
To: COLE David
Cc: YELTON-BRAM Tiffany; DECONCINI Nina; jason.miner@oregon.gov; Richard Whitman; BACHMAN Jeff
Subject: RE: Permitting process questions.
Mr. Cole,
To help Bear Creek Recovery understand DEQ processes and legal requirements, here are the questions we wish to have answered, along with requests for examples:
Please send examples (if any exist) of revised wastewater permits where DEQ allowed backsliding to allow discharge into waters of the state at times an existing permit prohibited discharge; and/or backsliding to permit discharge onto land when land was too wet to allow discharge; and/or backsliding that allowed more contamination to occur in waters of the state because a city was not capable of processing its wastewater to standards in an existing permit. Please, in relation to that, send any DEQ / State of Oregon rules/statues related to wastewater permit modification rules/ rules on backsliding. The term “anti-backsliding” refers to section 402(o) of the federal Clean Water Act prohibiting renewing, reissuing or modifying an existing NPDES permit containing less stringent water quality based effluent limits than those established in the previous permit. As such, anti-backsliding is not at issue here.
As a permit writer and compliance person for permittees that DEQ has issued NPDES permits to discharge treated wastewater into waters of the state, under Clean Water Act authorization, I am not aware that DEQ has ever allowed discharging treated wastewater to waters of the state during prohibited times of the year.
It has been DEQ’s policy to remind permittees with this kind of discharge restriction in their permit that doing so is a permit violation. For example, on June 14, 2017 the city of Molalla’s sewage treatment plant operator notified DEQ that the city had begun an out-of-season discharge to the Molalla River. Then on June 23, 2017 DEQ acknowledged the city’s notice and reminded the city that such a discharge was a permit violation.
DEQ also reminds these permittees that they must do whatever is necessary to prevent severe property damage in the absence of a bypass. For example, on April 27, 2017 the city of Carlton asked if they could discharge to the Yamhill River out-of-season. DEQ’s response was that DEQ cannot allow such a discharge, but that the facility must do what is necessary to avoid overtopping their lagoons and causing severe property damage.
Condition B3 a.(1), in Schedule F (General Conditions) of the permit defines a bypass as the following:
and severe property damage as the following:
Condition B3 of Schedule F states that DEQ may approve an anticipated bypass if the permittee meets certain conditions. The applicable text includes the following:
Please send any recent wastewater MAOs between DEQ and Oregon cities - we are most interested in seeing ones written in the last several months since the EPA audit challenged Oregon DEQ to produce stronger MAOs. Or direct us to any DEQ site where such MAOs are provided so the public can read them. Or provide the names of cities that have entered such agreements so we can seek them via public records requests if they are not posted freely by DEQ. While MAOs are not available on our website, you can get recent examples, the city of Sandy, for one, and Clean Water Services, for another, through the public records request process. I believe you are already quite familiar with how that works.
Please send links or examples of cities in your territory or in the state who have done recent upgrades because they were moved into the major facility category. Some examples include Sutherlin, Winston-Green (near Roseburg), and Stayton.
Please send any info related to DEQ/ State of Oregon assessment of the environmental health of the Molalla River and any rules that govern the use of the Molalla River for wastewater discharge. We are especially interested in the rules that govern temperature of the Molalla River. Probably the best, most comprehensive DEQ assessment of the Molalla River’s environmental health can be found in the Willamette Basin Total Maximum Daily Load. Click on the following link and scroll down to the Molalla-Pudding Subbasin: http://www.oregon.gov/deq/wq/tmdls/Pages/TMDLs-Willamette-Basin.aspx .
Please send any guidelines/rules/statues that govern the establishment of wastewater MAOs, including if any guidelines that exist for the length of time DEQ may postpone enforcing Violations/ PEN notifications / Civil Penalties during the time DEQ seeks to establish an MAO. The following link will take you to our Enforcement Guidance for Field Staff. Scroll down to Appendix A for the MAO guidance: http://www.oregon.gov/deq/Filtered%20Library/enforcementpol.pdf .
Please send any examples of enforcement when a city has failed to prove whether or not a sewage lagoon is leaking - if any exist, cases where test wells were done to track the groundwater to see if contamination was caused by leaking sewage lagoon. In other words, provide cases where DEQ needed to proceed beyond lagoon leak tests if lagoon leak tests did not provide adequate proof of whether or not sewage lagoons were sound. If statutes exist about sewage lagoons, send those so we can understand the rules/statues that govern open sewage lagoons and the rules that govern how they must be maintained. The city of Carlton has monitoring wells near their lagoons. Schedule A, condition 4 of their permit addresses preventing groundwater contamination. Schedule B, conditions 1.e. and 3.c. outline the groundwater monitoring and reporting requirements. The link to their current permit is here: Carlton permit . The fact sheet for the current permit addresses groundwater issues on page 5 of the document. The link to the fact sheet is here: Carlton fact sheet .
Please supply any information about how a MAO established by DEQ with a city takes into consideration any existing Clean Water Act lawsuit settlement or if there is no such consideration by DEQ of any existing Clean Water Act settlements. There is no such DEQ consideration. What happens between any CWA litigants and the city does not involve DEQ, assuming DEQ is not one of the litigants.
Thanks for your help in understanding the processes available for bring cities into compliance with their permits and the Clean Water Act.
Sincerely,
Susan Han
Bear Creek Recovery
-----Original Message-----
From: david.cole@state.or.us
Sent: Tue, 11 Jul 2017 18:33:01 +0000
Subject: RE: Permitting process questions.
Hello Susan. I have a number of commitments through the rest of the day, but I do want to help answer your questions. So please send me a list of your questions in writing and I will get to them as soon as I am able. Thank you.
_____________________________________________
From: COLE David
Sent: Tuesday, July 11, 2017 11:19 AM
To: 'Susan Hansen'
Cc: COLE David; YELTON-BRAM Tiffany; MRAZIK Steve
Subject: Permitting process questions.
Hello Susan. I understand you left a voice mail message for Jon Gasik with some questions about the permitting process. I am a permit writer and compliance person for National Pollutant Discharge Elimination System water quality permits. Please let me know what your questions are and I’ll do my best to answer them.
David Cole, R.G.
Water Quality Specialist
DEQ - Northwest Region & Western Region
700 NE Multnomah Street, Suite 600
Portland, OR 97232
503-229-5011 (P)
503-229-6957 (F)
DEQ has a new website. Please update your bookmarks and check out the new site here: http://www.oregon.gov/deq/pages/index.aspx