Senator Charlie Ringo
Chair: Environment and Land Use Committee
900 Court St. NE; S-318
Salem, OR 97301

Dear Senator Ringo,

On behalf of the Oregon Chapter of Surfrider Foundation, we wish to express our concern over the possible renewal of NPDES Permit #101409 of the Georgia Pacific Pulp and Paper Mill (“Mill”) in Toledo by the Oregon Department of Environmental Quality (DEQ). This letter follows upon the letter to you from Roger Hart, a marine geologist who expressed concern with the permit renewal based on his professional experience and knowledge of the Mill’s operations. While Mr. Hart has provided information on the issues of science raised by the renewal, our intention is to provide some additional information on the laws that govern the permit renewal process and detail why the proposed terms of the permit renewal are unsatisfactory. The purpose of Surfrider Foundation taking this action is not to shut the Georgia Pacific mill down. Rather, it is to hold the State of Oregon accountable for appropriate implementation of federal and state laws that protect water quality and ensure human health for Oregon citizens.

The pollution emanating from the Mill has a significant impact on water and air quality in Newport - a community which lies down the Yaquina River from the Mill. The Mill’s wastewater disposal pipe extends along the river to the primary outfall at Nye Beach, which is a heavily used shoreline area for Newport residents and visitors. While some level of pollution is expected from the operation of Mill, there must be appropriate safeguards for water quality and public health. The parameters of the permit proposed for renewal fail to provide these safeguards as required by federal and state law.

Surfrider Foundation is a non-profit environmental organization dedicated to the protection and enjoyment of the world's oceans, waves, and beaches for all people, through conservation, activism, research and education. Our membership includes surfers, divers, fishermen, swimmers, paddlers, and other user groups who spend significant time on the coast and in the ocean. DEQ ‘s proposal to renew the wastewater permit for the Georgia Pacific Mill without adequately addressing the impacts of the Mill would adversely impact our members who use and enjoy the waters off the central Oregon Coast. We urge you to take appropriate action to ensure that DEQ fulfills its mandate to protect the waters of Oregon and the declarations of the Oregon state legislature that pollution of the waters of the state is not a reasonable use of those waters and constitutes a menace to public health and welfare, creates a public nuisance, is harmful to aquatic life and impairs legitimate beneficial uses of the water.

Background
The Mill lies along the most inland stretches of the Yaquina Bay, at river mile 12.3. The plant is approximately seven miles from downtown Newport. Treated waste from the Mill is pumped through the City of Newport to outfalls that discharge into the Pacific Ocean off of Nye Beach and during emergencies, directly into the Yaquina River. Contrary to the statements of DEQ in reviewing this permit, the outfall sites are in the vicinity of important and critical habitat areas. For example, the Nye Beach outfall sites are located just south from the Yaquina Head Outstanding Natural Area. Additionally, the rocky reefs and eelgrass beds of the Yaquina Estuary are located in the vicinity of the outfalls and are considered by the Pacific Fishery Management Council to be “habitat areas of particular concern” (HAPC) for groundfish.

The Mill has a well established history of permit violations. DEQ is aware of seventeen different spills that occurred between April 2000 and October 2004. While Georgia Pacific has responded to the spills, further pipe breaks have been reported as recently as February 2006 and there is no reason to doubt that further spills will occur in the future. Separately, measurements at the Yaquina River outfall site have revealed on four different occasions that pollution levels are in excess of those authorized by the terms of the permit. Despite these ongoing violations, DEQ has taken no enforcement action against Georgia Pacific (other than issuing letters of non-compliance) to actively bring the Mill into compliance with the terms of the permit, or to implement a more protective standard of best available technology.

To the contrary, the existing wastewater permit for the Mill expired on July 31, 2001. Georgia Pacific requested renewal of the permit at the time of the expiration, but DEQ sat on the renewal request for fours years while the Mill continued to operate without a renewed permit. When DEQ did finally take action in August 2005, DEQ sought to renew the permit without providing adequate public notice. DEQ was subsequently forced to withdrawal the approval and provide the public with an opportunity to comment on the proposed renewal. When public notice was properly provided, the public responded. DEQ received public comments from a variety of sources including the local residents, the Surfrider Foundation, the Northwest Environmental Defense Center, and marine geologist Roger Hart. These comments raise serious questions regarding the terms of the proposed renewed wastewater permit. DEQ has deliberated on the comments since November 2005 and proposes to issue a decision on the renewal imminently.

Concerns
The public comments submitted regarding the renewal application raise a number of concerns. In this letter we do not seek to address DEQ’s past failures to levy fines for violations of the existing permit or to provide adequate public notice during the renewal process. Instead, the following is a discussion of some of the more significant concerns raised by the renewal of the waste water permit as currently proposed by DEQ.

(1) Proposed Unlawful Increase in Mixing Zone.

The Mill’s wastewater permit authorizes mixing zones at the outfall sites where elevated levels of pollution are permitted. In these zones, DEQ suspends water quality standards. See OAR 340-041-0053. Mixing zones are split into two parts: (1) an area of acute, lethal effects known as the Zone of Initial Dilution (ZID); and (2) an area of chronic effects. DEQ regulations establish outside limitations on the size and scope of mixing zones that prohibit lethal toxicity to marine organisms that are passing through the ZID (as opposed to the organisms within the zone), while levels of toxicity in the larger mixing zone cannot impair the integrity of the entire water body as a whole. The terms of the wastewater permit must set forth the parameters of the allowable mixing zone based on an assessment of the biological, physical and chemical characteristics of the location of the mixing zone. DEQ must design the mixing zone with the following restrictions:

(A) Be as small as feasible;

(B) Avoid overlap with any other mixing zones to the extent possible and be less than the total stream width as necessary to allow passage of fish and other aquatic organisms;

(C) Minimize adverse effects on the indigenous biological community, especially when species are present that warrant special protection for their economic importance, tribal significance, ecological uniqueness, or other similar reasons determined by the Department and does not block the free passage of aquatic life;

(D) Not threaten public health;

(E) Minimize adverse effects on other designated beneficial uses outside the mixing zone.

OAR 340-041-0053(2)(c).

A mixing zone study undertaken by Georgia Pacific consultant, Battelle, in 2004 revealed that the Mill is currently operating outside of the parameters of its allowable mixing zone. The study undertook a dye test, which indicated the extent of dilution and determined that concentrated levels of pollutants were beyond the borders of the currently defined mixing zone. Despite its awareness of this evidence, DEQ has taken no enforcement action to address the exceedence of the mixing zone as set forth as a term of the permit. Instead DEQ’s response to this evidence of non-compliance is to propose an increase in the size of the mixing zone. DEQ gives little consideration to less environmentally damaging alternatives, such as the repair of diffusers along the length of the pipe that are currently buried under sand or the extension of the outfall line past the reef and outside the area of littoral sand transport so the diffusers will be less susceptible to burial.

DEQ’s proposal to increase the size of the mixing zone is contrary to the anti-backsliding prohibitions of the Clean Water Act, which state that renewed permits cannot authorize effluent limitations that are less stringent than the previous permit. 33 U.S.C. § 1342(o). DEQ regulations additionally set forth an anti-degradation policy that prohibits new or increased sources of pollution. OAR 340-041-0026. While the regulations set forth an exception for existing mixing zones, there is no exception that allows for an increase in the size of mixing zones. Additionally, as described above, DEQ regulations limit the size of the mixing zone to “as small as possible” and to a size that minimizes impacts to the indigenous biological community and designated beneficial uses outside of the mixing zone. OAR 340-041-0053(2)(c).

Moreover, it is unsettled whether DEQ regulations permitting mixing zones themselves are even legally permissible given the extreme levels of pollution the regulations permit. While federal law acknowledges the option of mixing zones, it is questionable whether the acutely toxic mixing zones permitted by DEQ regulations meet the requirements of the Clean Water Act. The default standard for states that do not have mixing zone regulations is to maintain ambient water quality levels at the end of the pipe. DEQ mixing zone regulations represent a far departure from this baseline standard and one that has not been confirmed as compliant with the Clean Water Act.

(2) Failure to Ensure that Mill Does Not Create Objectionable Deposits.

Separate, but related to Surfrider’s concern regarding the arbitrary increase in the size of the mixing zone, is our concern that DEQ has failed to determine whether the Mill is creating an “objectionable deposit” at the Nye Beach outfall site prohibited by state law. OAR 340-041-0053(2) prohibits a mixing zone from causing or significantly contributing to “[m]aterials that will settle to form objectionable deposits.” As public comments indicate, the Mill produces in excess of 7 Million pounds of industrial waste annually at the Nye Beach outfall location. DEQ has made no inquiry into whether the outfall is producing objectionable deposits as a result of this massive discharge. Instead DEQ proposes to draw conclusions regarding potential sediment deposition through comparisons to the outfalls from a plant in Alaska. DEQ mixing zone regulations require the parameters of the mixing zone to be determined based on an analysis of the particular characteristics of the location of the mixing zone and make no allowance for analysis by analogy. OAR 240-041-0053(c).

(3) Failure to require best practicable treatments for turbidity and color or compliance with narrative criterion for color and narrative and numeric turbidity criteria.

The renewed permit terms proposed by DEQ fail to address two water quality parameters that are particularly relevant to the Mill’s operations: turbidity and coloration. It is well known that the Northwest Pulp and Paper Association funded the DEQ’s revision and the proposed weakening of the state turbidity standard to arguably unlawful levels. See Northwest Issues – State Will Review Water Quality Plans, Oregonian, December 11, 2005; Timber Group Puts Up Money for DEQ Study, Oregonian, August 17, 2002. As to color, the chemical pulping process produces mixtures the Mill terms as “black liquor” and “green liquor”. Comments to DEQ describe a dark brown plume emanating from the Nye Beach outfall that covers an area as large as 1000 by 200 meters. Despite the obvious relevance of turbidity and color water quality standards, DEQ has not included these standards as terms of the Mill’s permit.
First, as required by OAR 340-041-0007, DEQ must require the highest and best practicable treatment necessary to maintain the color of the Mill’s effluent at the lowest possible level. DEQ proposes no such requirement as a term of the permit despite the obvious relevance of the color narrative criterion to the Mill’s operations. Similarly, pursuant to OAR 3401-041-0036, DEQ must require the Mill to maintain the turbidity at the outfall sites at the lowest possible level and not exceed the background of the receiving water body by more than 10 percent. OAR 340-041-0007 additionally includes a narrative turbidity standard, which similar to the narrative standard for color requires the highest and best practicable treatments and lowest possible levels of turbidity. DEQ unlawfully proposes not to require compliance with either the narrative or numeric turbidity criteria.

(4) Failure to require restrictions to address bacteria levels, which are known to be
a problem but for which insufficient information exists.

DEQ indicates that testing of the waste stream for the Mill has revealed “the highest levels” of both fecal coliform and Klebsiella, which is a bacteria commonly found in pulp and paper effluent. The testing is indeterminate as to the relative amount of each contributing to high level results. Despite this information, DEQ seeks to apply a less restrictive standard for bacteria levels, based on its conclusion that the waters at the outfall area represent “infrequent use coastal recreation waters.” This conclusion is contrary to public comment, which indicates that Nye Beach is a heavily used and popular coastal destination. What is even more alarming, however, is that even under this less restrictive standard, bacteria levels in excess of the limit were recorded.

Despite the concerning results from these tests, DEQ states that it is unable to draw any conclusions regarding bacteria levels. See Permit Evaluation and Fact Sheet at 16. Despite the high levels of bacteria found in the Mill’s waste streams, DEQ has taken a position that it will renew the permit and determine later whether there is a cause for concern. This is unsatisfactory considering the Yaquina outfall occurs at a section of the river listed on the section 303(d) list for excessive levels of fecal coliform and the Nye Beach outfall site occurs at a popular recreation destination.

(5) Failure to Require Adequate Monitoring

A critical requirement of the Clean Water Act is that permittees provide adequate information to allow the government and the public to determine whether there is compliance with the terms of permits and whether the terms of permits are adequate to ensure the purposes of the Clean Water Act. See 33 U.S.C. § 1388. As discussed above, the Mill has a history of permit violations that includes a number of pipe breaks. Despite the documented history, DEQ does not propose to require monitoring along the twelve miles of pipes leading to the outfalls to determine whether there are additional leaks or whether conditions are deteriorating and likely to result in future leaks. Moreover, because the effluent volume is only monitored at the Yaquina River outfall, and not additionally at the Nye Beach outfall, there is no way to determine if all the effluent that leaves the Mill is reaching the ocean.

Additionally, the first several miles of the Yaquina are listed on the section 303(d) list for fecal coliform. DEQ acknowledges that testing of the waste stream for the Mill has reported elevated levels of fecal coliform and other bacteria. The Mill dumps its waste directly in the Yaquina River. Yet DEQ requires no monitoring for fecal coliform or other forms of bacteria as a term of the permit.

Because of health concerns related to water pollution, the Surfrider Foundation initiated a water quality monitoring program along Oregon’s coast in 1999, and has worked hard to support state efforts to implement the Federal Beach Act of 2000. Surfrider Foundation regularly receives reports from the Oregon public of ear infections, burning eyes, and gastrointestinal illness resulting from ocean related activities, and the 500 members of Oregon Surfrider have identified water quality as a top priority. Yet, the DEQ cites the “infrequent use of coastal waters” in its analysis as apparent justification for limited monitoring requirements. In reality, Nye Beach is regularly used by surfers, swimmers, waders, and other ocean users, and represents the most popular stretch of beach in Newport. DEQ’s failure to provide the public with adequate information is distressing.

(6) Failure to Acknowledge and Address Importation and Disposal of Leachate from North Marion County Disposal Facility.

The Mill has received leachate from the North Marion County Disposal Facility since December of 2000. The leachate constitutes liquid and suspended material that has percolated through or drained from the disposal facility. The composition and volume of the leachate are unknown. At the November 2, 2005, public hearing on the permit renewal, DEQ representatives stated they were unaware of the importation and disposal of leachate at the Toledo Mill. This is surprising because as far back as September 2001, a letter from DEQ references the importation of in excess of 6 Million gallons of leachate to the Mill between July 1999 and November 2000. Additionally, an April 30, 2004, article in the Salem Statesman Journal stated that “[Marion] county will spend about $1 million to truck the backlog of more than eight million gallons of wastewater- called leachate- to a Georgia-Pacific pulp and paper Mill in Toledo.” Nonetheless, DEQ makes only brief reference to the importation in the Permit Evaluation and Fact Sheet and states in total:

Process solids produced by the mill are transported via truck to the landfill for disposal. Leachate from the landfill operation flows into the 15-acre [sludge] pond and is then pumped under the Yaquina River to the treatment system. The landfill is operated under a DEQ Solid Waste Permit, No. 1059, and requires groundwater monitoring of the landfill and the sludge pond areas.

The Battelle study similarly fails to address the impacts of the leachate in its mixing zone study. Accordingly, there is no discussion of the amount of leachate that is imported and disposed through the Mill’s waste stream. The disposal of waste originating outside the operations of the plant is not provided for by the terms of the permit. The terms of the proposed permit address neither the amount of waste the importation will contribute or the types of pollutants that constitute the leachate.

The importation and disposal of waste unrelated to the operations of the Mill represents a new source of pollution that is not addressed under the terms of the existing permit for the Mill. The importation and disposal of unrelated waste necessitates a separate permit with parameters relevant to the amount and composition of the leachate. In addition to the increased size of the mixing zone, the tacit authorization to import and dispose significant quantities of leachate under the renewed permit is also a violation of the no backsliding and anti-degradation provisions of state and federal law.

Conclusion

Surfrider recognizes that a certain level of pollution is expected in the operation of the Mill. However, there are steps that DEQ can and must take to provide appropriate safeguards against pollution. Surfrider is interested solely in compliance with the agreed safeguards that are set forth in the law. We are interested and willing to meet and work with Georgia Pacific and DEQ to address our concerns. We are also cognizant that the Oregon Administrative Procedure Act permits judicial review of permit renewals should the public, Georgia Pacific, and DEQ not find common ground.

Thank you for taking the time to consider our concerns and please do not hesitate to contact us with questions.

Sincerely,



Melinda McComb
Newport Volunteer
Surfrider Blue Water Task Force



Peter Stauffer
Oregon Policy Coordinator
Surfrider Foundation