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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 1018

## Text

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No. 95-1732 MAY 24 1996
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; CLERK
In The ee te

Supreme Court of the United States
October Term, 1995
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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)...

No

6

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

10

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,

11

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.

¢

12

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

13

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

(C) Otherwise in violation of a constitutional or

statutory provision.

App. 2

(c) The court shall set aside or remand the order if it
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;

(c) Seek input from councils of governments;

(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;

(c) A receiving stream for which there is insufficient
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;

(C) Water Quality Limited Waters Policy: For water
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;

(C) The new or increased discharged load shall not
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

(c) For interstate waterbodies, the state shail be
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;

(c) Possible modification of irrigation practices to
. 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;

(c) No sewerage utility should assume that it will
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

(C) A financing plan which will assure ability to
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;

(c) Wherever minimum design criteria for waste
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;

(C) On any day that the daily flow to a sewage
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;

(c) Mass load limits as defined in this rule may be
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;

(C) The daily mass load expressed in pounds per
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;

(c) Average Chlorophyll a values shall be based on
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;

(c) Implement the strategy upon adoption by the
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. ]

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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/];

(C) Main stem Willamette River from Newberg to
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.

(c) Turbidity (Nephelometric Turbidity Units, NTU)
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

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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.

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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;

(c) Other special conditions.

(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;

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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
|
|
|

(C) A description of any load increase proposed
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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(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:

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

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

App. 42

(c) Applicable standards and guidelines used as a
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1805%3A6. Public record. Not legal advice.