Post-hearing comments: City of Wilmington NPDES Permit Proceedings
December 31, 1999
Mr. Robert Thompson, Hearing Officer
RE: City of Wilmington NPDES Permit Proceeding
Dear Mr. Thompson:
Green Delaware sought a public hearing on the proposed permit renewal for the City of Wilmington, DE, sewer plant. This permit also is considered to authorize the operation by the City of about 39 Combined Sewer Overflows (CSOs) that discharge untreated (raw) sewage into tributaries of the Delaware. (For the last several years Green Delaware has sought to work with the City of Wilmington to secure the cleanup of these CSOs.) The draft permit appears to allow about a fifty percent increase in emissions of water pollutants into the Delaware River. Information obtained before, during, and after the hearing confirms this. While DNREC and the City claim the increase in discharges from the sewer plant outfall will be offset, or more than offset, by reduced discharges from Combined Sewer Overflows, no data are available to support this claim. For this reason among many others, Green Delaware recommends that the draft permit not be authorized.
Concerns about the hearing itself
At one time Delaware was known for the quality of public hearings on environmental matters. Apparently it is the policy of DNREC to change this, disregarding the law and diminishing public participation in decision making. For example, our request to subpoena witnesses was denied, out request for post hearing written questions to the agency and the applicant was denied. A highly prejudicial ãworkshopä was scheduled immediately before the hearing. You sought to characterize the hearing as merely an occasion for the taking of public comment, whereas the LAW says the Department's decision is to be make on the basis of the hearing record. You failed to ask whether others present wished to be considered parties to the proceeding and refused to correct this later. You attempted to keep me from questioning the representatives of the applicant and the Department, and badgered me constantly while I attempted to do so. All these actions are contrary to long settled practice in Delaware and, in our view, are contrary to the letter and spirit of the law.
DNREC issues National Pollution Discharge Elimination System (NPDES) permits under authority delegated by the US Environmental Protection Agency. (We hereby incorporate by reference the agreement between Delaware and the EPA) This program is part of the Clean Water Act, one of whose goals is to eliminate the discharge of pollutants into waters. DNREC is obligated to operate the NPDES program in accordance with the goals (ã restore and maintain the chemical, physical, and biological integrity of the Nation's waters.ä) as well as the technicalities of the CWA. Delaware law states ãThe land, water, underwater, and air resources of the State must be protected from pollution in the interest of the health and safety of the public.ä 7 Del C. 6001 (a) (5). With all this, Mr. Thompson, it is hard to understand why you stated at the hearing that eliminating river pollution was ãa noble goal, but not why we are here,ä or words to that effect.
Unacceptable procedures for developing permits
At the hearing we sought to have Mr. Peder Hansen explain just how DNREC determined the discharge limits in the Wilmington permit. As you noted ãobviously Mr. Hansen is unable to answer the question.ä This is how it was done:
(1) Determine what Surface Water Quality Standards (SWQS) apply. That is to say, how much of the pollutants in question the river can contain without being considered ãpolluted;ä
(2) Delineate a mixing zone and determine a presumed dilution factor for same (within the mixing zoneä the river is allowed to be polluted);
(3) Back-calculate to determine the presumed maximum discharges at the outfall that will not cause exceedances of SWQS at the edge of the mixing zone, PRESUMING THAT THE BACKGROUND (AMBIENT) LEVELS OF SUBJECT CONTAMINANTS ARE ZERO. (This policy is established in a letter from then-Secretary Edwin H. Clark to Messrs. Parkowski and Stoodley, dated May 31, 1991, which states ãI understand that ambient water criteria for toxics may not be achieved using this approach.ä Mr. Hansen testified that the Delaware River is not in attainment with regard to concentrations of toxics.)
(4) Make that the permit limit.
In other words, DNREC pretends, in setting permit limits, that there are no such pollutants in the river already. DNREC then goes on to issue at least 45 other permits impacting the Delaware River, each one calculated as if it were the only one.
This procedure is incompatible with the objectives of the CWA and cannot properly serve as a basis for permitting. Thus, the subject draft permit should not take effect.
Note also that this method does not take (directly) into account the actual capabilities of the facility to remove pollutants. It may produce a permit limit higher than the actual emissions of the plant under normal circumstances. In spite of this, violations by the Wilmington plant are frequent. We reviewed ãDischarge Monitoring Reportsä (ãDMRsä) for the facility for 1988 and 1989. In 1999 we reviewed data for 9 months. In 5 months ãthe performance of the facility was unsatisfactoryä due to varying numbers of permit violations. 4 months had no violations. In 1998 performance was described as satisfactory for 9 months and unsatisfactory for 3 months. Thus the plant has a history of violations, and its performance seems to be deteriorating. Apparently no notices of violation or other enforcement actions were taken by DNREC in response to these violations. Rather, DNREC seems to be responding by simply loosening the permit limits so violations will no longer be violations.
Uses of proposed increased capacity
Both the City and DNREC claim that the 50 percent increase in outfall flow will be used to treat flows previously discharged through CSOs, and therefore the total pollution discharged by the City of Wilmington will be reduced. The Delaware River Basin Commission has also been repeating this claim. There is one small problem--no evidence to support it. In order to determine whether increased flow is abating CSOs, or serving growth in New Castle County, we need to know what the influent streams to the plant are. DNREC claims to have data only for outflows. In order to know whether CSO pollutant discharge would be reduced more than plant outfall discharge would increase, we need to know something about the amount of contaminants discharged by the CSOs. Mr. Hansen testified that his Section did not have this information. The City has been evasive. We asked Mr. Sharma these questions in a letter dated Dec. 17th:
? Information on the amounts of liquid discharged by CSOs, and the amounts of contaminants discharged, in totals and by CSO; and
? Information on how the City intends to capture and treat additional wastewater formerly discharged via CSO.
Mr. Sharmaâs response: ã...these requests are denied because the files are simply not relevant to the subject permit re-issuance proceeding....ä In follow-up conversations Mr. Sharma has stated he does not have this information. (We have asked that the record be held open until the City provides this information.)
Is Wilmington cleaning up the CSOs?
Senator Blevins wrote in this proceeding: ã... Mr. Hansen said that lack of funding would be a valid reason for non-compliance to this timeline [for partial remedies at 3 CSOs] and that an extension would be granted. If that is the case, the City will forever claim a lack of funding. They have already stated clearly that correcting CSOs is not a priority for them.ä
Mr. Alden Jenkins wrote: ãTo this observer City officials ... rank the CSO projects and the Public Health of this Community last in their concerns ...ä
Green Delaware has met with Mayor Sills of Wilmington several times and our impressions are the same as those quoted above.
The 1994 EPA CSO control policy requires implementation of the so-called ãNine Minimum Controlsä no later than January 1, 1997. Mr. Hummel has told us that DNREC considers the City to be in compliance. This is incorrect. One example: one of the ãnineä is control of ãfloatables.ä This calls for screens to remove solid objects (tampons applicators, condoms, shoes, ....). However, of Wilmington's 39 CSOs only one (if that) has screens in place in 2000. The City is actually more than three years late in compliance, and anyone can visit a CSO during a ãrain eventä and see the discharge of raw sewage mixed with whatever people flush down their toilets.
Total Maximum Daily Load (TMDL)
The Delaware River Basin Commission has developed a Total Maximum Daily Load (TMDL) for the Delaware, and has determined that the assimilative capacity of the river for various toxics is exceeded. based on current permitted and actual loads to the river. Under CWA regulations, it is prohibited to authorize a NPDES permit for an additional load of a pollutant for which the receiving water is impaired. Wilmington's effluents are known to contain concentrations of toxic parameters for which the river is impaired. Thus, the draft permit should not be granted.
Water Quality Based Effluent Limits (WQBEL)
Wilmington's discharge has the reasonable potential to exceed water quality standards and therefore a WQBEL is required (the effluent limits are effectively WQBELs based on a site specific TMDL and waste load allocation). However, the effluent limits in the draft permit, as noted above, make no pretense of being based on an effort to attain water quality standards. Mr. Hansen testified that the permit was not submitted for review to DNRECâs Watershed Assessment Section, and we are told that neither the Surface Water Discharges Section nor the WAS even possess copies of the DRBC date on ambient concentrations in the Delaware.
The draft permit violates 40 CFR 122.44 requirements for WQBELs and TMDLs (including the prohibition on new sources). We object to the shore-hugging and other characteristics of the proposed mixing zone.
The EPA, in providing a ãgeneral objectionä to the permit, noted that ã... the permit has not been written to meet water quality standards ...ä (Letter from Thomas Maslany to Kevin Donnelly, received by DNREC September 29, 1999.
We will not repeat comments submitted by the Delaware Riverkeeper Network, the New Jersey Environmental Federation, the Wilmington River-City Committee, and others opposed to this permit. We will repeat the comment of Mr. Tom Whitehead of Pennsville, NJ, that ãWe are entering the year 2000, not the year 1900.ä (I am not sure that Sharon Finlaysonâs testimony was present in the record when I reviewed it. If this document is missing we can provide a copy.)
Please note that this letter is only a partial recitation of Green Delawareâs objections to the draft permit. We repeat our request that the record be kept open until the City of Wilmington shall have provided the requested information. Meanwhile, for the reasons called out above, and others, we advise DNREC not to proceed with the draft permit. The Wilmington facility should continue operating under the ãoldä permit until a new permit can be developed that is consistent with the Clean Water Act.
Alan J. Muller
copy: Nicholas A. DiPasquale, Secretary
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