Amicus Curiae Brief — City of Portland v. Northwest Environmental Advocates

Supreme Court brief1996

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No. 95-1732 MAY 24 1996

; CLERK

In The ee te

Supreme Court of the United States

October Term, 1995

CITY OF PORTLAND,

Petitioner,

NORTHWEST ENVIRONMENTAL ADVOCATES,

A non-profit Oregon corporation and NINA BELL,

Respondents

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF AMICUS CURIAE OF THE OREGON

ASSOCIATION OF CLEAN WATER AGENCIES

IN SUPPORT OF THE PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

G. Davip Jewett

THorp, Purpy, JEWETT,

Urness & WILKINSON, P.C.

644 North “A” Street

Springfield, OR 97477

Telephone: (541) 747-3354

Counsel for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

pF UM Ge Ue Sees 8 64). ry rarer ii

STATEMENT OF INTEREST OF AMICUS CURIAE 1

SU ee Fs T EE & 6 wo nid oon scene encevesas 3

The Petition should be granted to eliminate conflict

among the circuits; to settle an important federal

question that the Ninth Circuit has decided based

on a misapplication of a decision of this Court; and

to restore the CWA’s crucial balance between the

reliability of NPDES permits and enforcement... 3

REE ie saa cks oO ee ccee pes MOR we ae eee oars os 3

A. The decision below creates a conflict in the

ARR oleate er SR ARM cea op tame arg 3

B. The decision below misapplies a prior ruling of

DR CN a ks Vio ok Dew etwesen tea es exe cre 4

C. The decision below upsets the CWA’s balance

between reliability of NPDES permits and

ND cs 5 os ov Bek ok Nw ee EN OKO SS 5

D. Citizens are not left without a significant

PRUE snes kee e nsec ican veueeneas earvbues eee 10

4% LEY & | ANS ante Peeper eran Mieco eee gees mae 12

TABLE OF AUTHORITIES

Page

CASES

Atlantic States Legal Foundation, Inc. v. Eastman

Kodak Co., 12 F.3d 353 (2d Cir. 1993), cert.

denied, __ U.S. ____ 115 S. Ct. 62, 130 L.Ed.2d 19

(1998) aoe. o sini odin Ws ah eee ee ee ee a 3, 8

City of Milwaukee v. Illinois and Michigan, 451 U.S.

304, 101 S. Ct. 1784, 68 L.Ed.2d 114 (1981)......... 7

Northwest Environmental Advocates v. City of Port-

land, 11 F.3d 900 (9th Cir. 1993) (NWEA I)......... 6

Northwest Environmental Advocates v. City of Port-

land, 56 F.3d 979 (1995) (NWEA Il) .............. 4,9

Northwest Environmental Advocates v. City of Port-

land, 74 £.3G 945 (1996 Riioscs he eee 4,10

Oregon Natural Resources Council v. United States

Forest Service, 84 F.2d 842 (9th Cir. 1987)........... 4

PUD No. 1 of Jefferson County v. Washington Depart-

ment of Ecology, ___ U.S. ___, 114 S. Ct. 1900, 128

L.Ed.26 716 (39PS). 0cig sscnen seed ee es 4

United States v. Hooker Chemicals and Plastics Corp.,

748 F.2d 968 (26 Cik. TGR ieee es ea cae ees 3

FEDERAL STATUTES

33 U.S.C. BL2, CC Ms. ccc a excuses eee 1

33 US.C. $190. ce : ij

33 USC. IMI . cc oe .

33 USC. $1968. is ee ee 4

ili

TABLE OF AUTHORITIES - Continued

Page

STATE STATUTES

SU PEE) MONE C2), wo cae anne rence censsceess 11

SOG. ales sce ssa cee cberteassesece es 11

Ec vi uw c nes g rents tiessavcvesesne cass 11

FEDERAL REGULATIONS

40 C.E.R. §122.44(a), (b)(1), (c) and (d)(1)(i).--..----. 10

40 C.F.R. §123.1(i)(2)..... 6... 22. eee eeees 8

My CPR. BIZGDS «sw. woe cece cece ewer e seen ees 11

Vag \ 3) See ece eo oo ace

40 C.F.R. §124.10(a)(1)(ii), (b) OS ees ee 10

40 C.F.R. §124.10(e) ..... 6... eee eee cee eee eee eee eee 10

40 C.F.R. §124.12(a)..... 2-2. - eee eee eee eee eens 11

40 C.F.R. §124.17 ........ cece eee ee eee eee eees eS

AD C.ER. §124.8. ... 2.2... ence cece cece cece cere eenens 11

OREGON ADMINISTRATIVE RULES

OAR 340-41-005 through 340-41-150.......-...---+--: 5

‘et UR |) nen oe ne 6

OAR 340-41-445(2)(a), (c), (d) and (e) .....--------- 7

a) a © 2 nee oe me t

OAR 340-45-035(3)(a) and (b), (4), (6), (7) and (8).... 11

TABLE OF AUTHORITIES - Continued

Page

OTHER

Alder, Addressing Barriers to Watershed Protection,

25 Envtl. L. 973, 1106 n. 118 (1995)...

STATEMENT OF INTEREST OF AMICUS CURIAE!

The Oregon Association of Clean Water Agencies

(ACWA) is an Oregon nonprofit corporation. Of ACWA’s

76 members, 63 are Oregon cities and other public agen-

cies providing municipal sewage treatment and disposal.

ACWA’s 64 public member agencies have a population of

at least 1,691,855 which is about 54% of Oregon’s popula-

tion of 3,132,000.

ACWA was formed to initiate and participate in the

development of sound environmental policies; to pro-

mote public awareness and education; and to promote

interagency coordination, assistance and partnership in

order to fulfill a shared vision of water quality protection.

It is ACWA’s policy to provide legal assistance in the

form of amicus curiae briefs, or otherwise, when the issue

involved significantly affects a range of members and a

favorable outcome would further the interests of ACWA

as a whole.

ACWA’s members have a vital interest in the proper

interpretation and application of the Clean Water Act, 33

U.S.C. §1251, et seq. (CWA) because they operate their

sewage treatment facilities pursuant to National Pollutant

Discharge Elimination System (NPDES) permits issued by

the Oregon Department of Environmental Quality (DEQ)

and approved by the United States Environmental Protec-

tion Agency (EPA).

1 This brief is being filed with the written consent of the

parties pursuant to Rule 37.2. The consents of the parties are

being filed separately with the Clerk of the Court.

The NPDES permit system subjects publicly owned

treatment works (POTWs) to a complex array of require-

ments including, but not limited to, specific effluent lim-

itations, general water quality standards, sludge disposal,

ground water protection, infiltration and inflow reduc-

tion, mixing zones, industrial pretreatment programs and

extensive monitoring and reporting requirements, to

name a few. Many of these requirements are based on

difficult scientific and engineering judgments regarding

the probable effect of different pollutant loads on receiv-

ing waters and the likelihood of being able to achieve

those loads.

The planning, design, siting and construction of

municipal sewage treatment plants to meet the NPDES

permit requirements is a long, often arduous and always

expensive process. Therefore, POTWs are usually

designed to serve their communities for periods of 20

years or more. In the last 20 years, ACWA’s members and

other Oregon public agencies have spent more than

$1,200,000,000 for the construction and upgrading of sew-

age treatment facilities to protect Oregon’s rivers and

streams. Nationwide, federal, state and local govern-

ments invested more than $128,000,000,000 from 1972 to

1989 in municipal treatment sewage facilities. Alder,

Addressing Barriers to Watershed Protection, 25 Envtl. L.

973, 1106 n. 118 (1995).

The decision below — which holds that a citizens suit

may be brought to enforce general water quality stan-

dards which have not been translated into end-of-pipe

effluent limitations —- undermines the reliability of NPDES

permits as sources of guidance for sewage treatment

plant construction and operation; disrupts long term

municipal ‘financial planning; and raises the specter of

financial instability for many communities. This is of

enormous concern to ACWA’s members, who now find

themselves subject to a different interpretation of the

CWA simply because they are located within the jurisdic-

tion of the Ninth Circuit Court of Appeals.

SUMMARY OF ARGUMENT

The Petition should be granted to eliminate conflict

among the circuits; to settle an important federal ques-

tion that the Ninth Circuit has decided based on a

misapplication of a decision of this Court; and to

restore the CWA’s crucial balance between the

reliability of NPDES permits and enforcement.

ARGUMENT

A. The decision below creates a conflict in the

circuits.

It is unnecessary to reiterate the City of Portland’s

(Portland) explanation of how the decision below con-

flicts with the decisions of the Second Circuit in Atlantic

States Legal Foundation, Inc. v. Eastman Kodak Co., 12 F.3d

353 (2d Cir. 1993), cert. denied, ___~ U.S. ____ 115 S. Ct. 62,

130 L.Ed.2d 19 (1994) and United States v. Hooker Chemicals

and Plastics Corp., 749 F.2d 968 (2d Cir. 1984), which hold

that CWA citizens suits may be brought only to enforce

specific effluent standards or limitations. However, it is

important to emphasize that prior to the decision in this

case, no court had interpreted the CWA to allow the

enforcement of general water quality standards through

citizens suits. Northwest Environmental Advocates v. City of

Portland, 56 F.3d 979, 991 (1995) (Kleinfeld, J., dissenting),

(NWEA II); Northwest Environmental Advocates v. City of

Portland, 74 F.3d 945, 948 (1996) (O’Scannlain, J., dissent-

ing from order denying Portland’s petition for rehearing).

The decision below even conflicts with the Ninth

Circuit’s prior decision in Oregon Natural Resources Coun-

cil v. United States Forest Service, 84 F.2d 842 (9th Cir. 1987)

wherein the court stated that the limitations necessary to

meet water quality standards rather than the water qual-

ity standards themselves are what may be enforced in a

CWA citizens suit under 33 U.S.C. §1365. Id. at 850.

B. The decision below misapplies a prior ruling of

this Court.

The linchpin of the rationale for withdrawing the

court’s original decision was that PUD No. 1 of Jefferson

- County v. Washington Department of Ecology, __ U.S. __

114 S. Ct. 1900, 128 L.Ed.2d 716 (1994)

cast into considerable doubt our holding .. . that

citizens do not have standing under the Clean

Water Act to enforce water quality standards

unless they have been translated into end-of-

pipe effluent limitations.

NWEA II, 56 F.3d at 981. However, as was pointed out in

Judge Kleinfeld’s dissent:

Jefferson County does not involve a citizen’s suit,

says nothing about citizen’s suits and implies

nothing about citizen’s suits. Id. at 990.

C. The decision below upsets the CWA’s balance

between reliability of NPDES permits and

enforcement.

The NPDES permit system is a complex process pur-

suant to which EPA or delegated state agencies, such as

DEQ, issue permits allowing POTWs (and other entities)

to discharge wastes into receiving waters subject to the

effluent limits and other conditions set forth in the per-

mits. The CWA sets out a general framework based on

achieving minimum numerical technology based effluent

limitations; requiring the states to designate the beneficial

uses of receiving waters and establish general water qual-

ity standards therefor; and establishing a permit issuance

and enforcement system to ensure protection of the qual-

ity of receiving waters.

Oregon Administrative Rules (OAR) Chapter 340,

Division 41 sets forth DEQ’s plan for managing water

quality in Oregon. It sets out general policies that restrict

degradation of surface waters; require all POTWs to

develop long term financing plans to address wastewater

needs; and provide an implementation program applica-

ble to all 19 basins in Oregon. OAR 340-41-005 through

340-41-150. The rules also designate beneficial uses, gen-

eral water quality standards and minimum design criteria

for treatment and control of wastes on a basin-by-basin

basis. OAR 340-41-202 through 340-41-975. General water

quality standards are set separately for each basin and

include dissolved oxygen, temperature, turbidity, pH,

bacteria and total dissolved solids, among others. The

minimum POTW design criteria set forth numerical efflu-

ent limitations which must be achieved based on the

more stringent of CWA or Oregon requirements. See, ¢.g.,

OAR 340-41-442 through 340-41-470 which set the stan-

dards for the Willamette Basin in which Portland and

many other ACWA members are located.

The plan is implemented through a permit and

enforcement system which prohibits any discharge other

than pursuant to a permit issued by DEQ and approved

by EPA. OAR 340-41-120(1).

In the last 20 years, Oregon’s communities have

spent more than $1,200,000,000 building and upgrading

their sewage treatment facilities to meet state and federal

standards. In 1990, EPA projected the need to spend

$110,000,000,000 nationally to meet sewage treatment

needs through the year 2010. Alder, Addressing Barriers to

Watershed Protection, supra, 25 Envtl. L. 973, 1106 n. 118

(1995).

Given the extreme cost of pollution abatement,

industry and cities must have the ability to plan

for the future with the assurance that if they

remain within their concrete permit parameters,

they will remain on the correct side of the law.

Northwest Environmental Advocates v. City of Portland, 11

F.3d 900, 911 (9th Cir. 1993) (NWEA JI).

Municipal treatment facilities are a combination of

mechanical, biological and chemical processes to remove

pollutants from wastewater before discharging it to the

receiving waters. Engineers can design such facilities to

achieve removal pollutant rates sufficient to comply with

specific effluent limits. They cannot design to meet gen-

eral water quality standards for changing conditions in

the receiving waters which are beyond the POTWs’ con-

trol. Information on receiving water quality is not gener-

ally available on a frequent basis. More importantly, the

quality of the receiving waters depends to a large degree

on changing natural conditions and the effects of other

point and nonpoint discharges over which the permittee

has no control.

For example, while a permittee can plan, design,

construct and operate facilities to control the levels of

dissolved oxygen, bacteria, turbidity and pH of its efflu-

ent, it cannot control those levels in the receiving waters.

It is just those levels which determine general water

quality. See, e.g., OAR 340-41-445(2)(a), (c), (d) and (e).

Allowing citizens suits to enforce general water qual-

ity standards as the Ninth Circuit has done here will

necessarily make the federal courts rather than EPA and

state regulatory agencies the primary “agency” setting

discharge standards for this nation’s POTWs. Such a role

for the federal courts has already been rejected by this

Court. City of Milwaukee v. Illinois and Michigan, 451 U.S.

304, 320, 101 S. Ct. 1784, 68 L.Ed.2d 114 (1981).

Conversely, citizen enforcement of specific numerical

effluent limits will neither unduly burden the planning

process nor the court system. Communities can and

should plan their facilities to ensure that required pollu-

tant levels in their effluent are achieved, and in this

situation the courts are not called upon to determine

whether ambiguous general standards have been

exceeded due to the conduct of one permittee. In short,

the difference in effect between the enforcement options

for numerical effluent limits and general water quality

standards is the balance point between the ability to plan

for, construct and operate treatment facilities which will

satisfy regulatory requirements and financial chaos.

A ruling that citizens cannot sue to enforce general

water quality standards neither creates an anomaly under

the CWA nor leaves our nation’s waters unprotected. The

permit condition at issue here provides that notwith-

standing the permit’s effluent limits, Portland cannot dis-

charge wastes which violate water quality standards

except in the mixing zone. The same condition is in every

NPDES permit issued by DEQ to POTWSs in Oregon. The

condition’s reach is obviously not restricted to combined

sewer overflows (CSQOs).? Notably, neither the CWA nor

its implementing regulations require such a restrictive

condition. This condition is imposed by DEQ as one of

the more stringent optional requirements states may

impose under the CWA. 33 U.S.C. §1342(b). Indeed this

condition is not part of the federal enforcement program.

40 C.F.R. §123.1(i)(2). Accordingly, there is no reason it

should be subject to enforcement through the citizens suit

provision of the CWA. Eastman Kodak Co., 12 F.3d at 359.

However, enforcement of such provisions may be sought

through either state regulatory agencies or EPA. Id., 33

U.S.C. §1342(h).

The availability of enforcement by the regulatory

agencies provides the oversight which produces the pro-

tection envisioned by the CWA. It is the regulatory agen-

cies and their expert staffs with whom the permittees

2 Of the 239 cities in Oregon, only 11 have combined

sanitary and storm water sewers.

interact most in the permit issuance process. As a result,

they are in a much better position than private citizens to

make the discretionary judgments which are necessary

not only in the permit issuance process but at the enforce-

ment stage.

Water quality standards are a useful device for

government enforcement authorities (who

decided not to prosecute this case against the

City of Portland), because they provide stan-

dards for effluent limitations and goals toward

which enforcement should be aimed. They are

too uncertain and amorphous, however, for use

against specific polluters.

NWEA II, 56 F.3d at 992 (Kleinfeld, J., dissenting).

The estimated cost for correcting Portland’s CSO

problem is $500,000,000 to $1,200,000,000. Both DEQ and

the citizen plaintiffs want the situation corrected. In the

exercise of its discretion, DEQ allowed Portland a period

of several years to redress the problem. During that time,

Portland will have the opportunity to raise and spend the

money to do it with as little financial disruption as possi-

ble. The practical effect of the citizens suit, however,

would be to use the federal courts to require Portland to

address the CSO problem without regard to other press-

ing needs it may face. The CWA does not require such a

remedy and the federal courts should not, at the behest of

citizens, stray into this arena and impose such a remedy

absent a clear mandate by Congress. If the federal courts

allow citizens to sue to enforce general water quality

standards, they may be besieged by citizens suits

demanding the impossible from cities who neither have

the funds nor the ability to solve general water quality

problems for which they are neither the sole nor the

primary cause. As Judge O’Scannlain aptly put it:

While state water quality standards may serve

as an important source of authority for a state to

impose additional pollution control require-

ments, they should not be used as a vehicle for

flooding the federal courts with citizens suits

against permittees who are meeting the specific

requirements (i.e., effluent limitations) outlined

in their permits.

Northwest Environmental Advocates v. City of Portland, 74

F.3d at 946.

D. Citizens are not left without a significant rem-

edy.

The federal regulatory scheme requires that NPDES

permits contain numerous provisions such as technology-

based effluent limits, standards for sewage sludge dis-

posal, reopener clauses and other effluent limitations to

control all pollutants which have a reasonable potential

to cause an exceedence of any state water quality stan-

dard. 40 C.F.R. §122.44(a), (b)(1), (c) and (d)(1)(i). It also

establishes an elaborate permit issuance process in which

the public is given ample opportunity to participate. 40

C.F.R. §124. A regulatory agency must give public notice

that a draft permit has been prepared and allow a mini-

mum of 30 days for public comment. Minimum standards

are set for the contents of all public notices. 40 C.FR.

§124.10(a)(1)(ii), (b) and (d). The public notice must

include a copy of a fact sheet containing extensive infor-

mation related to the nature of the proposed permit, the

wastes to be discharged, the basis for permit conditions,

the dates for the public comment period and the pro-

cedures for requesting a hearing. 40 C.F.R. §124.8 and

§124.10(e). A public hearing is required any time there is

“a significant degree of public interest in a draft permit.”

40 C.F.R. §124.12(a). Finally, a written response is

required to public comments on the issuance of a final

permit. 40 C.F.R. §124.17. These requirements as well as

many others are made applicable to state programs pur-

suant to 40 C.F.R. §123.25.

Oregon’s rules for the issuance of NPDES permits are

set forth at OAR 340-45-035. As required by the federal

regulations, these rules provide for public notice, com-

ment periods, preparation and distribution of fact sheets,

public hearings and responses to public comments. OAR

340-45-035(3)(a) and (b), (4), (6), (7) and (8). The Oregon

rules also provide that the expected impaci on the water

quality of the receiving waters must be specifically

addressed. OAR 340-45-035(3) and (4). Perhaps most

notably for the purposes of this case, if a member of the

public is dissatisfied with the terms of the permit, an

action may be filed in the state courts under Oregon’s

Administrative Procedures Act. ORS 183.434(1) and (2).

The state courts have the authority to affirm, reverse or

remand the permit. ORS 183.484(4). Successful citizen

plaintiffs may even recover their reasonable attorney fees

and costs in such actions. ORS 183.497(1).

The existing process provides numerous avenues for

citizens’ input and to challenge decisions in the state

courts. There is no reason for the federal courts then, to

read into the CWA a requirement that citizens may bring

a federal court suit based on an alleged violation of

general water quality standards.

CONCLUSION

The CWA’s authority for citizens suits is limited to

the enforcement of specific effluent standards established

by the appropriate regulatory agency to protect water

quality. It does not extend to claimed violations of gen-

eral water quality standards where the permittee has

complied with the specific effluent limitations in its per-

mit. The decision below creates a conflict in the circuits

and misapplies a prior decision of this Court. Moreover,

it upsets the delicate balance between the reliability of

NPDES permits and enforcement.

This case is not just about CSO problems. Under

NWEA II, every general water quality standard estab-

lished by a state gives rise to a potential citizens suit.

Thus, the decision raises the specter that the long term

financial plans of every city in Oregon and in the Ninth

Circuit, may be severely undermined. American cities

have many pressing needs of which the protection. of

water quality is one. They should be able to plan, con-

struct and operate sewage treatment works in reliance on

the effluent limits established in their discharge permits

without disruption by the unwarranted expansion of fed-

eral court jurisdiction sanctioned by the Ninth Circuit in

this case. The limited financial resources of our nation’s

cities should not become a pawn in the battle between

regulatory agencies and dissatisfied citizens regarding

the perniciousness of the effect of permitted discharges

on amorphous water quality standards. The petition for

certiorari should be granted and the decision of the Ninth

Circuit Court of Appeals should be reversed.

Respectfully submitted,

G. Davip Jewett

THorp, Purpy, JEWwETT,

Urness & WILKINSON, P.C.

644 North “A” Street

Springfield, OR 97477

Telephone: (541) 747-3354

Counsel for Amicus Curiae

Oregon Association of

Clean Water Agencies

App. 1

183.484 Jurisdiction for review of orders other than

contested cases; procedure; scope of court authority. (1)

Jurisdiction for judicial review of orders other than con-

tested cases is conferred upon the Circuit Court for Mar-

ion County and upon the circuit court for the county in

which the petitioner resides or has a principal business

office. Proceedings for review under this section shall be

instituted by filing a petition in the Circuit Court for

Marion County or the circuit court for the county in

which the petitioner resides or has a principal business

office.

(4)(a) The court may affirm, reverse or remand the

order. If the court finds that the agency has erroneously

interpreted a provision of law and that a correct inter-

pretation compels a particular action, it shall:

(A) Set aside or modify the order; or

(B) Remand the case to the agency for further action

under a correct interpretation of the provision of law.

(b) The court shall remand the order to the agency

if it finds the agency’s exercise of discretion to be:

(A) Outside the range of discretion delegated to the

agency by law;

(B) Inconsistent with an agency rule, an officially

stated agency position, or a prior agency practice, if the

inconsistency is not explained by the agency; or

statutory provision.

App. 2

finds that the order is not supported by substantial evi-

dence in the record. Substantial evidence exists to sup-

port a finding of fact when the record, viewed as a whole,

would permit a reasonable person to make that finding.

» * ‘

183.497 Awarding costs and attorney fees when

finding for petitioner. (1) In a judicial proceeding desig-

nated under subsection (2) of this section the court:

(a) May, in its discretion, allow a petitioner reason-

able attorney fees and costs if the court finds in favor of

the petitioner.

(b) Shall allow a petitioner reasonable attorney fees

and costs if the court finds in favor of the petitioner and

determines that the state agency acted without a reason-

able basis in fact or in law; but the court may withhold all

or part of the attorney fees from any allowance to a

petitioner if the court finds that the state agency has

proved that its action was substantially justified or that

special circumstances exist that make the allowance of all

or part of the attorney fees unjust.

* * *

App. 3

WATER POLLUTION

DIVISION 41

STATE-WIDE WATER QUALITY

MANAGEMENT PLAN;

BENEFICIAL USES, POLICIES,

STANDARDS, AND TREATMENT

CRITERIA FOR OREGON

Preface

340-41-001 (1) The rules which follow, together with

the applicable laws of the State of Oregon and the appli-

cable regulations of the Environmental Quality Commis-

sion, set forth Oregon’s plans for management of the

quality of public waters within the State of Oregon.

(2) Under this plan, the Department of Environmen-

tal Quality will continue to manage water quality by

evaluating each discharge and activity, whether existing

or a new proposal, on a case-by-case basis, based on best

information currently available and within the limiting

framework of minimum standards, treatment criteria, and

policies which are set forth in the plan.

(3) The EQC recognizes that the deadlines for adop-

tion of this plan prevented thorough involvement by local

government in the development and review of the plan.

Accordingly, the Department will review the contents of

this plan with affected local governments and will use

their comments and suggestions in preparing amend-

ments for consideration by the EQC not later than

December, 1977. At a minimum, the processes of coor-

dination with local governments will consist of the fol-

lowing elements:

App. 4

(a) Work with county coordinators to set up meet-

ings to explain the plan to groups of local governments

and solicit their comments;

(b) Provide copies of the plan and supporting docu-

ments to any affected local governments who have not

already received them;

(d) Upon request, visit local level governments to

discuss the plan;

(e) Work with statewide associations of local gov-

ernments and others to inform local governments of the

plan.

(1) “BOD” means five-day 20° C. Biochemical Oxy-

gen Demand.

(2) “DEQ” or “Department” means the Oregon State

Department of Environmental Quality.

(3) “DO” means dissolved oxygen.

(4) “EQC” or “Commission” means the Oregon

State Environmental Quality Commission.

(5) “Estuarine waters” means all mixed fresh and

oceanic waters in estuaries or bays from the point of

oceanic water intrusion inland to a line connecting the

outermost points of the headlands or protective jetties.

(6) “Industrial Waste” means any liquid, gaseous,

radioactive, or solid waste substance or a combination

thereof resulting from any process of industry, manufac-

turing, trade, or business, or from the development or

recovery of any natural resources.

App. 5

(7) “Marine Waters” means all oceanic, offshore

waters outside of estuaries or bays and within the terri-

torial limits of the State of Oregon.

(8) “Mg/I” means milligrams per liter.

(9) “Pollution” means such contamination or other

alteration of the physical, chemical, or biological proper-

ties of any waters of the state, including change in tem-

perature, taste, color, turbidity, silt, or odor of the waters,

or such radioactive or other substance into any waters of

the state which either by itself or in connection with any

other substance present, will or can reasonably be

expected to create a public nuisance or render such

waters harmful, detrimental, or injurious to public health,

safety, or welfare, or to domestic, commercial, industrial,

agricultural, recreational, or other legitimate beneficial

uses or to livestock, wildlife, fish or other aquatic life, or

the habitat thereof.

(10) “Public Water” means the same as “waters of

the state”.

(11) “Sewage” means the water-carried human or

animal waste from residences, buildings, industrial estab-

lishments, or other places together with such groundwa-

ter infiltration and surface water as may be present. The

admixture with sewage as herein defined of industrial

wastes or wastes, as defined in sections (6) and (13) of

this rule, shall also be considered “sewage” within the

meaning of this division.

(12) “SS” means suspended solids.

App. 6

(13) “Wastes” means sewage, industrial wastes, and

all other liquid, gaseous, solid, radioactive, or other sub-

stances which will or may cause pollution or tend to

cause pollution of any water of the state.

(14) “Waters of the State” include lakes, bays,

ponds, impounding reservoirs, springs, wells, rivers,

streams, creeks, estuaries, marshes, inlets, canals, the

Pacific Ocean within the territorial limits of the State of

Oregon, and all other bodies of surface or underground

waters, natural or artificial, inland or coastal, fresh or

salt, public or private (except those private waters which

do not combine or effect a junction with natural surface

or underground waters), which are wholly or partially

within or bordering the state or within its jurisdiction.

(15) “Low Flow Period” means the flows in a stream

resulting from primarily groundwater discharge or base-

flows augmented from lakes and storage projects during

the driest period of the year. The dry weather period

varies across the state according to climate and topogra-

phy. Wherever the low flow period is indicated in the

Water Quality Management Plans, this period has been

approximated by the inclusive months. Where applicable

in a waste discharge permit, the low flow period may be

further defined.

(16) “Secondary Treatment” as the following con-

text may require for:

(a) “Sewage wastes” means the minimum level of

treatment mandated by EPA regulations pursuant to Pub-

lic Law 92-500;

App. 7

(b) “Industrial and other waste sources” imply con-

trol equivalent to best practicable treatment (BPT).

(17) “Nonpoint Sources” refers to diffuse or uncon-

fined sources of pollution where wastes can either enter

into — or be conveyed by the movement of water to -

public waters.

(18) “Loading Capacity (LC)” - The greatest

amount of loading that a water can receive without vio-

lating water quality standards.

(19) “Load Allocation (LA)” - The portion of a

receiving water’s loading capacity that is attributed

either to one of its existing or future nonpoint sources of

pollution or to natural background sources. Load alloca-

tions are best estimates of the loading which may range

from reasonably accurate estimates to gross allotments,

depending on the availability of data and appropriate

techniques for predicting loading. Whenever possible,

natural and nonpoint source loads should be distin-

guished.

(20) “Wasteload Allocation (WLA)” —- The portion of

a receiving water’s loading capacity that is allocated to

one of its existing or future point sources of pollution.

WLAs constitute a type of water quality-based effluent

iimitation.

(21) “Total Maximum Daily Load (TMDL)” - The

sum of the individual WLAs for point sources and LAs

for nonpoint sources and background. If a receiving

water has only one point source discharger, the TMDL is

the sum of that point source WLA plus the LAs for any

nonpoint sources of pollution and natural background

App. 8

sources, tributaries, or adjacent segments. TMDLs can be

expressed in terms of either mass per time, toxicity, or

other appropriate measure. If Best Management Practices

(BMPs) or other nonpoint source pollution controls make

more stringent load allocations practicable, then waste-

load allocations can be made less stringent. Thus, the

TMDL process provides for nonpoint source control

tradeoffs.

(22) “Land Development” refers to any human

induced change to improved or unimproved real estate,

including but not limited to construction, installation or

expansion of a building or other structure, land division,

drilling, and site alteration such as that due to land

surface mining, dredging, grading, construction of

earthen berms, paving, improvements for use 2+ parking

or storage, excavation or clearing.

(23) “Jurisdiction” refers to any city or county

agency in the Tualatin River and Oswego Lake subbasins

that regulates land development activities within its

boundaries by approving plats, site plans or issuing per-

mits for land development.

(24) “Erosion Control Plan” shall be a plan contain-

ing a list of best management practices to be applied

during construction to control and limit soil erosion.

(25) “Public Works Project” means any land devel-

opment conducted or financed by a local, state, or federal

governmental body.

(26) “Stormwater Quality Control Facility” refers to

any structure or drainage way that is designed, con-

structed, and maintained to collect and filter, retain, or

App. 9

detain surface water runoff during and after a storm

event for the purpose of water quality improvement. It

may also include, but not be limited to, existing features

such as wetlands, water quality swales, and ponds which

are maintained as stormwater quality control facilities.

(27) “Water Quality Swale” is a natural depression

or wide shallow ditch use to temporarily store, route, or

filter runoff for the purpose of improving water quality.

(28) “In Lieu Fee” means a fee collected by a juris-

diction in lieu of requiring construction of onsite storm-

water quality control facilities.

(29) “Effluent Limited” can mean one of the follow-

ing categories:

(a) A receiving stream which is meeting and/or is

expected to meet water quality standards with the imple-

mentation of standard treatment technology which is sec-

ondary treatment for sewage wastes and best practicable

treatment (BPT) for industrial and other waste sources;

(b) A receiving stream for which there is insuffi-

cient information to determine if water quality standards

are being met with standard treatment technology.

(30) “Water Quality Limited” can mean one of the

following categories:

(a) A receiving stream which does not meet

instream water quality standards during the entire year

or defined season even after the implementation of stan-

dard technology;

(b) A receiving stream which achieves and is

expected to continue to achieve instream water quality

App. 10

standard but utilizes higher than standard technology to

protect beneficial uses;

information to determine if water quality standards are

being met with higher than standard treatment technol-

ogy or where through professional judgment the receiv-

ing stream would not be expected to meet water quality

standards during the entire year or defined season with-

out higher than standard technology.

(31) “Reserve Capacity” means that portion of a

receiving stream’s loading capacity which has not been

allocated to point sources or nonpoint sources and natu-

ral background as waste load allocations or load alloca-

tions, respectively. The reserve capacity includes that

loading capacity which has been set aside for a safety

margin and is otherwise unallocated.

(32) “Aquatic Species” means any plants or animals

which live at least part of their life cycle in waters of the

State.

(33) “Biological Criteria” means numerical values or

narrative expressions that describe the biological integ-

rity of aquatic communities inhabiting waters of a given

designated aquatic life use.

(34) “Designated Beneficial use” means the purpose

or benefit to be derived from a water body, as designated

by the Water Resources Department or the Commission.

(35) “Indigenous” means supported in a reach of

water or known to have been supported according to

historical records compiled by State and Federal agencies

or published scientific literature.

App. 11

(36) “Resident Biological Community” means

aquatic life expected to exist in a particular habitat water

quality standards for a specific ecoregion, basin, or water

body are met. This shall be established by accepted bio-

monitoring techniques.

(37) “Without Detrimental Changes in the Resident

Biological Community” means no loss of ecological integ-

rity when compared to natural conditions at an appropri-

ate reference site or region.

(38) “Ecological Integrity” means the summation of

chemical, physical and biological integrity capable of

supporting and maintaining a balanced, integrated, adap-

tive community of organisms having a species composi-

tion, diversity, and functional organization comparable to

that of the natural habitat of the region.

(39) “Appropriate Reference Site or Region” means

a site on the same water body, or within the same basin or

ecoregion that has similar habitat conditions, and repre-

sents the water quality and biological community attain-

able within the areas of concern.

(40) “Critical Habitat” means those areas which

support rare, threatened or endangered species, or serve

as sensitive spawning and rearing areas for aquatic life.

(41) “High Quality Waters” means those waters

which meet or exceed those levels that are necessary to

support the propagation of fish, shellfish, and wildlife

and recreation in and on the water, and other designated

beneficial uses.

App. 12

(42) “Outstanding Resource Waters” means those

waters designated by the Environmental Quality Com-

mission where existing high quality waters constitute an

outstanding state or national resource based on their

extraordinary water quality or ecological values, or

where special water quality protection is needed to main-

tain critical habitat areas.

(43) “Short-Term Disturbance” means a temporary

disturbance where water quality standards may be vio-

lated briefly, but not of sufficient duration to cause acute

or chronic effects on beneficial uses.

Stat. Auth: ORS 183.500, 468.020, 468.705,

468.710 & 468.735

Policies and Guidelines Generally Applicable to All

Basins

340-41-026 (1) In order to maintain the quality of

waters in the State of Oregon, the following is the general

pclicy of the EQC:

(a) Antidegradation Policy for Surface Waters. The

purpose of the Antidegradation Policy is to guide deci-

sions that affect water quality such that unnecessary deg-

radation from point and nonpoint sources of pollution is

prevented, and to protect, maintain, and enhance existing

surface water quality to protect all existing beneficial

uses. The standards and policies set forth in OAR

340-41-120 through 340-41-962 are intended to implement

the Antidegradation Policy:

(A) High Quality Waters Policy: Where existing

water quality meets or exceeds those levels necessary to

App. 13

support propagation of fish, shellfish, and wildlife and

recreation in and on the water, and other designated

beneficial uses, that level of water quality shall be main-

tained and protected. The Environmental Quality Com-

mission, after full satisfaction of the intergovernmental

coordination and public participation provisions of the

continuing planning process, and with full consideration

of sections (2), (3) and (5) of this rule, however, may

allow a lowering of water quality in these high quality

waters if they find:

(i) No other reasonable alternatives exist except to

lower water quality; and

(ii) The action is necessary and justifiable for eco-

nomic or social development benefits and outweighs the

environmental costs of lowered water quality; and

(iii) All water quality standards will be met and

beneficial uses protected.

(B) The Director or a designee may allow lower

water quality on a short term basis in order to respond to

emergencies or to otherwise protect public health and

welfare;

quality limited waterbodies, the water quality shall be

managed as described in section (3) of this rule;

(D) Outstanding Resource Waters Policy: Where

existing high quality waters constitute an outstanding

state or national resource such as those waters designated

as extraordinary resource waters, or as critical habitat

areas, the existing water quality and water quality values

App. 14

shall be maintained and protected, and classified as “Out-

standing Resource Waters of Oregon”. The Commission

may specially designate high quality waterbodies to be

classified as Outstanding Resource Waters in order to

protect the water quality parameters that affect ecological

integrity of critical habitat or special water quality values

that are vital to the unique character of those water-

bodies. The Department will develop a screening process

and establish a list of nominated waterbodies for Out-

standing Resource Waters designation in the Biennial

Water Quality Status Assessment Report (305(b) Report).

The priority waterbodies for nomination include:

(i) National Parks;

(ii) National Wild and Scenic Rivers;

(iii) National Wildlife Refuges;

(iv) State Parks; and

(v) State Scenic Waterways.

(E) The Department will bring to the Commission a

list of waterbodies which are proposed for designation as

Outstanding Resource Waters at the time of each Trien-

nial Water Quality Standards Review.

(F) In designating Outstanding Resource Waters,

the Commission shall establish the water quality values

to be protected and provide a process for determining

what activities are allowed that would not affect the

outstanding resource values. After the designation, the

Commission shall not allow activities that may lower

water quality below the level established except on a

short term basis to respond to emergencies or to other-

wise protect human health and welfare.

App. 15

(b) Point source discharges shall follow policies and

guidelines in sections (2), (5), and (6) of this rule, and

nonpoint source activities shall follow guidelines in sec-

tions (7), (8), (9), (10), and (11) of this rule.

(2) In order to maintain the quality of waters in the

State of Oregon, it is the general policy of the EQC to

require that growth and development be accommodated

by increased efficiency and effectiveness of waste treat-

ment and control such that measurable future discharged

waste loads from existing sources do not exceed presently

allowed discharged loads except as provided in section

(3) of this rule.

(3) The Commission or Department may grant

exceptions to sections (2) and (6) of this rule and

approvals to section (5) of this rule for major dischargers

and other dischargers, respectively. Major dischargers

include those industrial and domestic sources that are

classified as major sources for permit fee purposes in

OAR 340-45-075(2):

(a) In allowing new or increased discharged loads,

the Commission or Department shall make the following

findings:

(A) The new or increased discharged load would

not cause water quality standards to be violated;

(B) The new or increased discharge load would not

unacceptably threaten or impair any recognized benefi-

cial uses. In making this determination, the Commission

or Department may rely upon the presumption that if the

numeric criteria established to protect specific uses are

met the beneficial uses they were designed to protect are

App. 16

protected. In making this determination the Commission

or Department may also evaluate other state and federal

agency data that would provide information on potential

impacts to beneficial uses for which the numeric criteria

have not been set;

be granted if the receiving stream is classified as being

water quality limited under OAR 340-41-006(30)(a),

unless:

(i) The pollutant parameters associated with the

proposed discharge are unrelated either directly or indi-

rectly to the parameter(s) causing the receiving stream to

violate water quality standards and being designated

water quality limited; or

(ii) Total maximum daily loads (TMDLs), waste

load allocations (WLAs) load allocations (LAs), and the

reserve capacity have been established for the water qual-

ity limited receiving stream; and compliance plans under

which enforcement action can be taken have been estab-

lished; and there will be sufficient reserve capacity to

assimilate the increased load under the established TMDL

at the time of discharge; or

(iii) Under extraordinary circumstances to solve an

existing, immediate, and critical environmental problem

that the Commission or Department may consider a

waste load increase for an existing source on a receiving

stream designated water quality limited under OAR

340-41-006(30)(a) during the period between the estab-

lishment of TMDLs, WLAs and LAs and their achieve-

ment based on the following conditions:

App. 17

(I) That TMDLs, WLAs and LAs have been set; and

(II) That a compliance plan under which enforce-

ment actions can be taken has been established and is

being implemented on schedule; and

(III) That an evaluation of the requested increased

load shows that this increment of load will not have an

unacceptable temporary or permanent adverse effect on

beneficial uses; and

(IV) That any waste load increase granted under

subparagraph (iii) of this paragraph is temporary and

does not extend beyond the TMDL compliance deadline

established for the waterbody. If this action will result in

a permanent load increase, the action has to comply with

subparagraphs (i) or (ii) of this paragraph.

(D) The activity, expansion, or growth necessitating

a new or increased discharge load is consistent with the

acknowledged local land use plans as evidenced by a

statement of land use compatibility from the appropriate

local planning agency.

(b) Oregon’s water quality management policies

and programs recognize that Oregon’s water bodies have

a finite capacity to assimilate waste. Unused assimilative

capacity is an exceedingly valuable resource that

enhances in-stream values specifically, and environmen-

tal quality generally. Allocation of any unused assimila-

tive capacity should be based on explicit criteria. In

addition to the conditions in subsection (a) of this section,

the Commission or Department shall consider the follow-

ing:

App. 18

(A) Environmental Effects Criteria:

(i) Adverse Out-of-Stream Effects. There may be

instances where the non-discharge or limited discharge

alternatives may cause greater adverse environmental

effects than the increased discharge alternative. An exam-

ple may be the potential degradation of groundwater

from land application of wastes;

(ii) Instream Effects. Total stream loading may be

reduced through elimination or reduction of other source

discharges or through a reduction in seasonal discharge.

A source that replaces other sources, accepts additional

waste from less efficient tr _atment units or systems, or

reduces discharge loadings during periods of low stream

flow may be permitted an increased discharge load year-

round or during seasons of high flow, as appropriate;

(iii) Beneficial effects. Land application, upland

wetlands application, or other non-discharge alternatives

for appropriately treated wastewater may replenish

groundwater levels and increase streamflow and assimi-

lative capacity during otherwise low streamflow periods.

(B) Economic Effects Criteria. When assimilative

capacity exists in a stream, and when it is judged that

increased loading will not have significantly greater

adverse environmental effects than other alternatives to

increased discharge, the economic effect of increased

loading will be considered. Economic effects will be of

two general types:

(i) Value of Assimilative Capacity. The assimilative

capacity of Oregon’s streams are finite, but the potential

uses of this capacity are virtually unlimited. Thus it is

App. 19

important that priority be given to those beneficial uses

that promise the greatest return (beneficial use) relative

to the unused assimilative capacity that might be utilized.

In-stream uses that will benefit from reserve assimilative

capacity, as well as potential future beneficial use, will be

weighed against the economic benefit associated with

increase loading;

(ii) Cost of Treatment Technology. The cost of

improved treatment technology, non-discharge and lim-

ited discharge alternatives shall be evaluated.

(4)(a) A receiving stream shall be designated as

water quality limited through the biennial water quality

status assessment report prepared to meet the require-

ments of Section 305(b) of the Water Quality Act. Appen-

dix A of the Status Assessment report shall identify: What

waterbodies are water quality limited, the time of year

the water quality standards violations occur, the segment

of stream or area of waterbody limited, the parameter(s)

of concern, whether it is water quality limited under OAR

340-41-006(30)(a), (b) or (c). Appendix B and C of the

Status Assessment report shall identify the specific eval-

uation process for designating waterbodies limited;

(b) The WQL list contained in Appendix A of the

Status Assessment report shall be placed on public notice

and reviewed through the public hearing process. At the

conclusion of the hearing process and the evaluation of

the testimony received, Appendix A will become the

official water quality limited list. The Department may

add a waterbody to the water quality limited list between

status assessment reports after placing that action out on

public notice and conducting a public hearing;

App. 20

responsible for completing the requirements of section (3)

of this rule for that portion of the interstate waterbody

within the boundary of the state;

(d) For waterbodies designated WQL under OAR

340-41-006(30)(c), the Department shall establish a prior-

ity list and schedule for future water quality monitoring

activities to determine; if the waterbody should be desig-

nated WQL under OAR 340-41-006(30)(a) or (b), if esti-

mated TMDLs need to be prepared, and if an

implementation plan needs to be developed and imple-

mented;

(e) For waterbodies designated WQL under OAR

340-41-006(30)(b), requests for load increases shall be con-

sidered following subsection (3)(b) of this rule.

(5) For any new waste sources, alternatives which

utilize reuse or disposal with no discharge to public

waters shall be given highest priority for use wherever

practicable. New source discharges may be approved

subject to the criteria in section (3) of this rule.

(6) No discharges of wastes to lakes or reservoirs

shall be allowed except as provided in section (3) of this

rule.

(7) Log handling in public waters shall conform to

current EQC policies and guidelines.

(8) Sand and gravel removal operations shall be

conducted pursuant to a permit from the Division of State

Lands and separated from the active flowing stream by a

water-tight berm wherever physically practicable. Recir-

culation and reuse of process water shall be required

‘jimi a

App. 21

wherever practicable. Discharges, when allowed, or seep-

age or leakage losses to public waters shall not cause a

violation of water quality standards or adversely affect

. legitimate beneficial uses.

(9) Logging and forest management activities shall

be conducted in accordance with the Oregon Forest Prac-

tices Act so as to minimize adverse effects on water

WW DRME a:

quality.

(10) Road building and maintenance activities shall

be conducted in a manner so as to keep waste materials

out of public waters and minimize erosion of cut banks,

fills, and road surfaces.

botienditt

(11) In order to improve controls over nonpoint

sources of pollution, federal, state, and local resource

management agencies will be encouraged and assisted to

coordinate planning and implementation of programs to

regulate or control runoff, erosion, turbidity, stream tem-

perature, stream flow, and the withdrawal and use of

irrigation water on a basin-wide approach so as to protect

the quality and beneficial uses of water and related

resources. Such programs may include, but not be limited

to, the following:

dete

esccratent e!. t iete ese NPN eet tas BA APN ded

(a) Development of projects for storage and release

of suitable quality waters to augment low stream flow;

Re NOP Ste

(b) Urban runoff control to reduce erosion;

. reduce or minimize adverse impacts from irrigation

return flows;

(d) Stream bank erosion reduction projects.

App. 22

Biological Criteria

340-41-027 Waters of the state shall be of sufficient

quality to support aquatic species without detrimental

changes in the resident biological communities.

Policy on Sewerage Works Planning and Construction

340-41-034 (1) Oregon’s publicly owned sewerage

utilities have since 1956 developed an increasing reliance

on federal sewerage works construction grant funds to

meet a major portion of the cost of their sewerage works

construction needs. This reliance did not appear unrea-

sonable based on federal legislation passed up through

1978. Indeed, the Environmental Quality Commission

(EQC) has routinely approved compliance schedules with

deadlines contingent on federal funding. This reliance no

longer appears reasonable based on recent and proposed

legislative actions and appropriations and the general

state of the nation’s economy.

(2) The federal funds expected for future years will

address a small percentage of Oregon’s sewerage works

construction needs. Thus, continued reliance by DEQ and

public agencies on federal funding for sewerage works

construction will not assure that sewage from a growing

Oregon population will be adequately treated and dis-

posed Of so that health hazards and nuisance conditions

are prevented and beneficial uses of public waters are not

threatened or impaired by quality degradation.

(3) Therefore, the following statements of policy are

established to guide future sewerage works planning and

construction:

App. 23

(a) The EQC remains strongly committed to its his-

toric program of preventing water quality problems by

requiring control facilities to be provided prior to the

connection of new or increased waste loads;

(b) The EQC urges each sewerage utility in Oregon

to develop, as soon as practicable, a financing plan which

will assure that future sewerage works construction,

operation, maintenance and replacement needs can be

met in a timely manner. Such financing plans will be a

prerequisite to Department issuance of permits for new

or significantly modified sewerage facilities, for approval

of plans for new or significantly modified sewerage facili-

ties, or for access to funding assistance from the state

pollution control bond fund. The Department may accept

assurance of development of such financing plan if neces-

sary to prevent delay in projects already planned and in

the process of implementation. The Department will work

with the League of Oregon Cities and others as necessary

to aid in the development of financing plans;

receive grant assistance to aid in addressing its planning

and construction needs; eee

(d) existing sewerage facility plans which are await-

ing design and construction should be updated where

necessary to include:

(A) Evaluation of additional alternatives where

appropriate, and re-evaluation of costs of existing alter-

natives;

(B) Identification and delineation of phased con-

struction alternatives; and

App. 24

construct facilities over an appropriate time span with

locally derived funds.

(e) New sewerage works facility planning initiated

after October 1, 1981 should not be approved without

adequate consideration of alternatives and phased con-

struction options, and without a financing plan which

assures adequate funding for construction, operation,

maintenance and replacement of sewerage facilities:

(A) The EQC recognizes that many cities in need of

immediate sewerage works construction have completed

planning and are awaiting design or construction fund-

ing. These cities have developed their program relying on

75 percent federal grants. They will have difficulty devel-

oping and implementing alternatives to fund immediate

construction needs. Many are, cr will be, under mor-

atoriums on new connections because existing facilities

are at, or near, capacity. The EQC will consider the fol-

lowing interim measures as a means of assisting these

cities to get on a self-supporting basis provided that an

approvable long-range program is presented:

(i) Temporary increases in waste discharge loading

may be approved provided a minimum of secondary

treatment, or equivalent control is maintained and benefi-

cial uses of the receiving waterway are not impaired;

(ii) Installation and operation of temporary treat-

ment works may be approved providing:

(I) The area served is inside an approved urban

growth boundary and the proposal is consistent with

State Land Use Planning laws;

dew

be: Hee J aS on PE,

Fe eee eee

App. 25

(II) A master sewerage plan is adopted which

shows how and when the temporary facilities will be

phased out;

(III) The public agency responsible for implement-

ing the master plan is the owner and operator of the

temporary facilities;

(IV) Sewerage service to the area served by the

temporary facility is necessary as part of the financing

program for master plan implementation and no other

option for service is practicably available;

(V) An acceptable receiving stream or method of

effluent disposal is available for the temporary facility.

(B) Compliance schedules and other permit require-

ments may be modified to incorporate an approved

interim program. Compliance with a permit so modified

will be required at all times.

(f) Sewerage Construction programs should be

designed to eliminate raw sewage bypassing during the

summer recreation season (except for a storm event

greater than the one in ten year 24 hour storm) as soon as

.practicable. A program and timetable should be devel-

oped through negotiation with each affected source.

Bypasses which occur during the remainder of the year

should be eliminated in accordance with an approved

longer term maintenance based correction program. More

stringent schedules may be imposed as necessary to pro-

tect drinking water supplies and shellfish growing areas;

(g) Any sewerage utility that is presently in compli-

ance and foresees a need to plan for future expansion to

accommodate growth but elects to wait for federal funds

App. 26

for planning and construction will make such election

with full knowledge that if existing facilities reach capac-

ity before new facilities are completed, a moratorium on

new connections will be imposed. Such moratorium will

not qualify them for any special consideration since its

presence is deemed a matter of their choice;

(h) The Department will continue to assist cities to

develop interim and long-range programs, and construc-

tion schedules and to secure financing for essential con-

struction.

Special Water Quality Standards for Public Waters of

Goose Lake in Lake County

340-41-035 [SA 26, f. 6-1-67; Repealed by DEQ 128,

f. & ef. 1-21-77]

Special Water Quality Standards for Public Waters of

the Main Stem Klamath River

340-41-040 [SA 26, f. 6-1-67; DEQ 55, f. 7-2-73, ef.

7-15-73; Repealed by DEQ 128, f. & ef.

1-21-77}

Special Water Quality Standards for the Public Waters

of Multnomah Channel and the Main Stem Willamette

River

340-41-045 [SA 26, f. 6-1-67; DEQ 55, f. 7-2-73, ef.

7-15-73; Repealed by DEQ 128, f. & ef.

1-21-77]

App. 27

Special Water Quality Standards for the Public Waters

of the Main Stem of the Columbia River From the

Eastern Oregon-Washington Border Westward to the

Pacific Ocean

340-41-050 [SA 26, f. 6-1-67; DEQ 55, f. 7-2-73, ef.

7-15-73; Repealed by DEQ 128, f. & ef.

1-21-77]

Implementation Program Applicable to All Basins

340-41-120 (1) No waste treatment and disposal

facilities shall be constructed or operated and no wastes

shall be discharged to public waters without obtaining a

permit from the Department as required by ORS 468.740.

(2) Plans for all sewage and industrial waste treat-

ment, control, and disposal facilities shall be submitted to

the Department for review and approval prior to con-

struction as required by ORS 468.742.

(3) Minimum design criteria for waste treatment

and control facilities prescribed under this plan and such

other waste treatment and controls as may be necessary

to insure compliance with the water quality standards

contained in this plan shall be provided in accordance

with specific permit conditions for those sources or activ-

ities for which permits are required and the following

implementation program:

(a) For new or expanded waste loads or activities,

fully approved treatment or control facilities, or both

shall be provided prior to discharge of any wastes from

the new or expanded facility or conduct of the new or

expanded activity;

App. 28

(b) For existing waste loads or activities, additional

treatment or control facilities necessary to correct specific

unacceptable water quality conditions shall be provided

in accordance with a specific program and timetable

incorporated into the waste discharge permit for the indi-

vidual discharger or activity. In developing treatment

requirements and implementation schedules for existing

installations or activities, consideration shall be given to

the impact upon the overall environmental quality

including air, water, land use, and aesthetics;

treatment and control facilities set forth in this plan are

more stringent than applicable federal standards and

treatment levels currently being provided, upgrading to

the more stringent requirements will be deferred until it

is necessary to expand or otherwise modify or replace the

existing treatment facilities. Such deferral will be

acknowledged in the permit for the source;

(d) Where planning or design or construction of

new or modified waste treatment and controls to meet

prior applicable state or federal requirements is under-

way at the time this plan is adopted, such plans, design,

or construction may be completed under the require-

ments in effect when the project was initiated. Timing for

upgrading to meet more stringent future requirements

will be as provided in section (3) of this rule.

(6) Where minimum requirements of federal law or

enforceable regulations are more stringent than specific

provisions of this plan, the federal requirements shall

prevail.

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App. 29

(9) The Department shall calculate and include

effluent limits specified in pounds per day, which shall be

the mass load limits for biochemical oxygen demand or

carbonaceous biochemical oxygen demand and total sus-

pended solids in National Pollutant Discharge Elimina-

tion System permits issued to all sewage treatment

facilities. These limits shall be calculated as follows:

(a) Except as noted in paragraph (H) of this subsec-

tion, for existing facilities and for facilities receiving engi-

neering plans and specifications approval from the

Department for new treatment facilities or treatment

facilities expanding the average dry weather treatment

capacity, prior to June 30, 1992:

(A) During periods of low stream flows (approxi-

mately May 1 through October 31), the monthly average

mass load expressed as pounds per day shall not exceed

the applicable monthly concentration effluent limit times

the design average dry weather flow expressed in million

gallons per day times 8.34 pounds per gallons. The

weekly average mass load expressed as pounds per day

shall not exceed the monthly average mass load times 1.5.

The daily mass load expressed in pounds per day shall

not exceed the monthly average mass load times 2.0;

(B) During the period of high stream flows (approx-

imately November 1 through April 30), the monthly aver-

age mass load expressed as pounds per day shall not

exceed the monthly concentration effluent limit times the

design average wet weather flow expressed in million

gallons per day times 8.34 pounds per gallon. The weekly

average mass load expressed as pounds per day shall not

exceed the monthly average mass load times 1.5. The

App. 30

daily mass load expressed in pounds per day shall not

exceed the monthly average mass load times 2.0;

treatment facility exceeds the lesser hydraulic capacity of

the secondary treatment portion of the facility or twice

the design average dry weather flow, the daily mass load

limit shall not apply. The permittee shall operate the

treatment facility at highest and best practicable treat-

ment and control;

(D) The design average wet weather flow used in

calculating mass loads shall be approved by the Depart-

ment in accordance with prudent engineering practice

and shall be based on a facility plan approved by the

Department, engineering plans and specifications

approved by the Department, or an engineering evalua-

tion. The permittee shall submit documentation describ-

ing and supporting the design average wet weather flow

with the permit application, application for permit

renewal, or modification request, or upon request by the

Department. The design average wet weather flow is

defined as the average flow between November 1 and

April 30 when the sewage treatment facility is projected

to be at design capacity for that portion of the year;

(E) Mass loads assigned as described in paragraphs

(B) and (C) of this subsection will not be subject to OAR

340-41-026(3);

(F) Mass loads as described in this rule will be

included in permits upon renewal, or upon permit mod-

ification request;

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App. 31

(G) Within 180 days after permit renewal or mod-

ification, permittees receiving higher mass loads under

this rule and having a separate sanitary sewer system

shall submit to the Department for review and approval a

proposed program and time schedule for identifying and

reducing inflow. The program shall consist of the follow-

ing:

(i) Identification of all overflow points and verifica-

tion that sewer system overflows are not occurring up to

a 24-hour, five-year storm event or equivalent;

(ii) Monitoring of all pump station overflow points;

and

(iii) A program for identifying and removing all

inflow sources into the permittees sewer system over

which the permittee has legal control; and

(iv) For those permittees not having the necessary

legal authority for all portions of the sewer system dis-

charging into the permittee’s sewer system or treatment

facility, a program and schedule for gaining legal author-

ity to require inflow reduction and a program and sched-

ule for removing inflow sources;

(v) Within one year after the Department's approval

of the program, the permittee shall begin implementation

of the program.

(H) Paragraphs (A) through (G) of this subsection

shall not apply to the cities of Athena, Elgin, Adair Vil-

lage, Halsey, Harrisburg, Independence, Carlton and

Sweet Home. Mass load limits have been individually

assigned to these facilities.

App. 32

(b) For new sewage treatment facilities or treatment

facilities expanding the average dry weather treatment

capacity, and receiving engineering plans and specifica-

tions approval from the Department after June 30, 1992,

the mass load limits shall be calculated by the Depart-

ment based on the proposed treatment facility capabilities

and the highest and best practicable treatment to mini-

mize the discharge of pollutants;

replaced by more stringent limits if required by waste

load allocations established in accordance with a TMDL

for treatment facilities discharging to water quality lim-

ited streams, or if required to prevent or eliminate viola-

tions of water quality standards;

(d) In the event that the design average wet

weather flow or the hydraulic secondary treatment capac-

ity is not known or has not been approved by the Depart-

ment at the time of permit issuance, the permit shall

include as interim mass load limits the mass load limits in

the previous permit issued to the permittee for the treat-

ment facility. The permit shall also include a requirement

that the permittee shall submit to the Department the

design average wet weather flow and hydraulic second-

ary treatment capacity within 12 months after permit

issuance. Upon review and approval of the design flow

information, the department will modify the permit ar.

include mass load limits as described in subsection (a) of

this section;

(e) Each permittee with existing sewage treatment

facilities otherwise subject to subsection (a) of th’* section

may choose mass load limits calculated as foll:__ s:

App. 33

(A) The monthly average mass load expressed as

pounds per day shall not exceed the applicable monthly

concentration effluent limit times the design average dry

weather flow expressed in million gallons per day times

8.34 pounds per gallon;

(B) The weekly average mass load expressed as

pounds per day shall not exceed the monthly average

mass load times 1.5;

day shall not exceed the monthly average mass load

times 2.0. In the event that existing mass load limits are

retained by the permittee, the terms and requirements of

subsection (a) of this section shall not apply.

(f) The Commission may grant exceptions to sub-

section (a) of this section. In allowing increased dis-

charged loads, the Commission shall make the findings

specified in OAR 340-41-026(3) for waste loads, and in

addition shall make the following findings:

(i) That mass loads as calculated in subsection (a) of

this section cannot be achieved with the existing treat-

ment facilities operated at maximum efficiency at pro-

jected design flows; and

(ii) That there are no practicable alternatives to

achieving the mass loads as calculated in subsection (a) of

this section.

App. 34

Nuisance Phytoplankton Growth

340-41-150 The following values and implementa-

tion program shall be applied to lakes, reservoirs, estu-

aries and streams, except for ponds and reservoirs less

than ten acres in surface area, marshes and saline lakes:

(1) The following average Chlorophyll a values

shall be used to identify water bodies where phy-

toplankton may impair the recognized beneficial uses:

(a) Natural lakes which thermally stratify: 0.01 mg/];

(b) Natural lakes which do not thermally stratify,

reservoirs, rivers and estuaries: 0.015 mg/I;

the flowing methodology (or other methods approved by

the Department): A minimum of three samples collected

over any three consecutive months at a minimum of one

representative location (e.g., above the deepest point of a

lake or reservoir or at a point mid-flow of a river) from

samples integrated from the surface to a depth equal to

twice the secchi depth or the bottom (the lesser of the two

depths); analytical and quality assurance methods shall

be in accordance with the most recent edition of Standard

Methods for the Examination of Water and Wastewater.

(2) Upon determination by the Department that the

values in section (1) of this rule are exceeded, the Depart-

ment shall:

(a) In accordance with a schedule approved by the

Commission, conduct such studies as are necessary to

describe present water quality; determine the impacts on

beneficial uses; determine the probable causes of the

exceedance and beneficial use impact; and develop a

App. 35

proposed control strategy for attaining compliance where

technically and economically practicable. Proposed strat-

egies could include standards for additional pollutant

parameters, pollutant discharge load limitations, and

other such provisions as may be appropriate. Where nat-

ural conditions are responsible for exceedance of the

values in section (1) of this rule or beneficial uses are not

impaired, the values in section (1) of this rule may be

modified to an appropriate value for that water body;

(b) Conduct necessary public hearings preliminary

to adoption of a control strategy, standards or modified

values after obtaining Commission authorization;

Commission.

(3) In cases where waters exceed the values in sec-

tion (1) of this rule and the necessary studies are not

completed, the Department may approve new activities

(which require Department approval), new or additional

(above currently approved permit limits) discharge load-

ings from point sources provided that it is determined

that beneficial uses would not be significantly impaired

by the new activity or discharge.

|[Publications: The publication(s) referred to or incor-

porated by reference in this rule are available from the

Department of Environmental! Quality. ]

App. 36

Willamette Basin

Beneficial Water Uses to be Protected

340-41-442 Water quality in the Willamette River

Basin (see Figures 1 and 7) shall be managed io protect

the recognized beneficial uses as indicated in Table 6.

Water Quality Standards Not to be Exceeded (To be

Adopted Pursuant to ORS 468.735 and Enforceable Pur-

suant to ORS 468.720, 468.990, and 468.992)

340-41-445 (1) Notwithstanding the water quality

standards contained below, the highest and best practica-

ble treatment and/or control of wastes, activities, and

flows shall in every case be provided so as to maintain

dissolved oxygen and overall water quality at the highest

possible levels and water temperatures, coliform bacteria

concentrations, dissolved chemical substances, toxic

materials, radioactivity, turbidities, color, odor, and other

deleterious factors at the lowest possible levels.

(2) No wastes shall be discharged and no activities

shall be conducted which either alone or in combination

with other wastes or activities will cause violation of the

following standards in the waters of the Willamette River

Basin:

(a) Dissolved oxygen (DO):

(A) Multnomah Channel and main stem Willamette

River from mouth to the Willamette Falls at Oregon City,

river mile 26.6: The DO concentrations shall not be less

than 5 mg/I;

App. 37

(B) Main stem Willamette River from the Willamette

Falls to Newberg, river mile 50: The DO concentrations

shall not be less than 6 mg/];

Salem, river mile 85: The DO concentrations shall not be

less than 7 mg/1;

(D) Main stem Willamette River from Salem to con-

fluence of Coast and Middle Forks, river mile 187: The

DO concentrations shall not be less than 90 percent of

saturation;

(E) All other Willamette Basin streams:

(i) Salmonid fish producing waters: The DO concen-

tration shall not be less than 90 percent of saturation at

seasonal low or less than 95 percent of saturation in

spawning areas during spawning, incubation, hatching,

and fry stages of salmonid fishes;

(ii) Non-Salmonid fish producing waters: The DO

concentration shall not be less than 6 mg/I.

(F) Columbia River (river mile 86 to 120): The DO

concentration shall not be less than 90 percent of satura-

tion.

No more than a ten percent cumulative increase in natu-

tal stream turbidities shall be allowed, as measured rela-

tive to a control point immediately upstream of the

turbidity causing activity. However, limited duration

App. 38

activities necessary to address an emergency or to accom-

modate essential dredging, construction or other legiti-

mate activities and which cause the standard to be

exceeded may be authorized provided all practicable tur-

bidity control techniques have been applied and one of

the following has been granted:

(A) Emergency activities: Approval coordinated by

DEQ with the Department of Fish and Wildlife under

conditions they may prescribe to accommodate response

to emergencies or to protect public health and welfare;

(B) Dredging, Construction or other Legitiamte

Activities: Permit or certification authorized under terms

of Section 401 or 404 (Permits and Licenses, Federal

Water Pollution Control Act) or OAR 141-85-100 et seq.

(Removal and Fill Permits, Division of State Lands), with

limitations and conditions governing the activity set forth

in the permit or certificate.

(d) pH (hydrogen ion concentration): pH values

shall not fall outside the following ranges:

(A) Columbia River: 7.0-8.5;

(B) All other basin waters: 6.5-8.5.

(e) Bacteria Standards:

(A) Effective upon filing and through June 30, 1995.

Organisms of the coliform group where associated with

fecal sources (MPN or equivalent MF using a representa-

tive number of samples). Freshwaters: A log mean of 200

fecal coliform per 100 milliliters based on a minimum of

five samples in a 30-day period with no more than ten

percent of the samples in the 30-day period exceeding 400

per 100 ml.

App. 39

(B) Effective July 1, 1995. Bacteria of coliform group

associated with fecal sources and bacteria of the entero-

cocci group (MPN or equivalent membrane filtration

using a representative number of samples) shall not

exceed the criteria values described in this paragraph.

However, the Department may designate site-specific

bacteria criteria on a case-by-case basis to protect benefi-

cial uses. Site specific values shall be described in and

included as part of a water quality management plan.

Freshwaters: A geometric mean of 33 enterococci per 100

milliliters based on no fewer than five samples, represen-

tative of seasonal conditions, collected over a period of at

least 30 days. No single sample should exceed 61 entero-

cocci per 100 ml.

App. 40

Issuance of NPDES Permtis

340-45-035 (1) Following determination that it is

complete for processing, each application will be

reviewed on its own merits. Recommendations will be

developed in accordance with provisions of all applicable

statutes, rules, regulations, and effluent guidelines of the

State of Oregon and the U.S. Environmental Protection

Agency.

(2) The Department shall formulate and prepare a

tentative determination to issue or deny an NPDES per-

mit for the discharge described in the application. If the

tentative determination is to issue an NPDES permit, then

a proposed NPDES permit shall be drafted which

includes at least the following:

(a) Proposed effluent limitations;

(b) Proposed schedule of compliance, if necessary;

established in conformance with the Federal Act and

regulations issued pursuant thereto;

(3)(a) In order to inform potentially interested per-

sons of the proposed discharge and of the tentative deter-

mination to issue an NPDES permit, a public notice

announcement shall be prepared and circulated in a man-

ner approved by the Director. In addition to the informa-

tion required under OAR 340-11-007(1) the public notice

shall contain:

(A) A description (when available) of the water

quality of the receiving water body both upstream and

downstream;

)

App. 41

Section 303(d)(1) of the Clean Water Act, a description of

whether the permit relates to the parameter(s) which is

water quality limited; if so, how the permit will fit within

| the existing TMDLs or if no TMDL exists, how it is

acceptable; and

| (B) If the waterbody is water quality limited under

and action required for its approval.

(b) The notice shall encourage comments by inter-

ested individuals or agencies, and shall tell of the avail-

ability of fact sheets, proposed NPDES permits,

applications, and other related documents available for

public inspection and copying. The Director shall provide

a period of not less than 30 days following the date of the

public notice during which time interested persons may

submit written views and comments. All comments sub-

mitted during the 30-day comment period shall be con-

‘ sidered in the formulation of a final determination.

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oe hee Tes 8 WP OE

(4) A fact sheet shall be prepared for each draft

NPDES permit for a major industrial facility and each

NPDES general permit. In addition, a fact sheet shall be

prepared for every industrial NPDES permit which incor-

porates a variance and for every draft permit which the

. Director finds is the subject of widespread public interest

Or raises major issues. Fact sheets shall contain the fol-

: lowing, where applicable:

(a) A brief description of the type of facility or

activity;

(b) The type and quantity of wastes to be dis-

charged;

App. 42

basis for effluent limits;

(d) An explanation of any proposed variances;

(e) A sketch, map, or detailed location of the dis-

charge, where appropriate;

(f) Information spelling out procedures for finaliz-

ing the permit and providing additional public input,

including opportunity for public hearing; and

(g) Where appropriate, an assessment of future con-

trol needs based on the adequacy of present controls,

records of compliance, applicable rules and regulations.

(5) After the public notice has been drafted and the

fact sheet and proposed NPDES permit provisions have

been prepared by the Department, they will be forwarded

to the applicant for review and comment. All comments

must be submitted in writing within 14 days after mailing

of the proposed materials if such comments are to receive

consideration prior to final action on the application,

unless the applicant requests additional time. The appli-

cant may also waive his right for the 14-day review time

in the interest of accelerating the issuance procedures.

(6) After the 14-day applicant review period has

elapsed, the public notice and fact sheet shall be sent to

any person upon request. The director shall add the name

of any person or group upon request to a mailing list to

receive copies of public notices and fact sheets. Any

public notice and fact sheet under this section shall be

prepared and circulated consistent with the requirements

of regulations issued under the Federal Act. The fact

sheet, proposed NPDES permit provisions, application,

App. 43

and other supporting documents will be available for

public inspection and copying. The Director may, in his

discretion, charge a reasonable fee for reproduction and

distribution of the public notice, fact sheet, and other

supporting documents.

(7) The Director shall provide an opportunity for

the applicant, any affected state, or any interested agency,

person, or group of persons to request or petition for a

public hearing with respect to NPDES applications. If the

Director determines that useful information may be pro-

duced thereby, or if there is a significant public interest in

holding a hearing, or there are written requests for a

hearing from ten persons or from an organization or

organizations representing at least ten persons, a public

hearing will be held prior to the Director’s final deter-

mination. Instances of doubt shall be resolved in favor of

holding the hearing. There shall be public notice of such a

hearing.

(8) At the conclusion of the public involvement

period, the Director shall make a final determination as

soon as practicable and promptly notify the applicant

thereof in writing. Any NPDES permit issued hereunder

shall contain such pertinent and particular conditions as

may be required to comply with the Federal Act or regu-

lations issued pursuant thereto. If the Director deter-

mines that the NPDES permit should be denied,

notification shall be in accordance with OAR 340-45-050.

If conditions of the NPDES permit issued are different

from the proposed provisions forwarded to the applicant

for review, the notification shall include the reasons for

the changes made. A copy of the NPDES permit issued

shall be attached to the notification. In any case, before

App. 44

the Director will issue an NPDES permit which applies

effluent limitations in accordance with effluent guidelines

rather than water quality standards, he will make a deter-

mination that the permitted discharge will not violate

applicable water quality standards and will provide some

justification for that determination. Such justification will

include, but not necessarily be limited to:

(a) A description of the anticipated effect on water

quality at the mixing zone boundary of the chemical

and/or physical parameter(s) upon which the size and

shape of the mixing zone are based; and

(b) A statement of anticipated effect of the dis-

charge on aquatic life.

(9) If the applicant is dissatisfied with the condi-

tions or limitations of any NPDES permit issued by the

Director, he may request a hearing before the Commis-

sion or its authorized representative. Such a request for

hearing shall be made in writing to the Director within 20

days of the date of mailing of the notification of issuance

of the NPDES permit. Any hearing held shall be con-

ducted pursuant to the regulations of the Department.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.