SITE INFORMATION AND CORRESPONDENCE 1980-1999

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Therefore, the direct use of USEPA ambient water quality criteria to determine compliance with the narrative toxicity objective, in the absence of indicator organisms, species diversity, population density, growth anomalies, and biotoxicity tests, and consideration of other material, relevant information, criteria, and guidelines, is contrary to the express language of the narrative toxicity objective. In the alternative, if it is a proper application of the narrative toxicity objective to use USEPA ambient criteria, including criteria issued after the narrative objective was adopted, to determine compliance with the objective, we question whether the narrative objective itself was adopted pursuant to state law. Specifically, prior to adopting a narrative toxicity objective that would allow the use of EPA ambient criteria to determine compliance, there was no consideration of economics and other factors as required by Water Code Section 13241 nor was there a program of implementation as required by Water Code Section 13242. 2) The Proposed Effluent Limitations Are Inconsistent With Porter-Cologne, CEQA, the APA, State Policy and the Basin Plan. If it adopted effluent limitations based on criteria that have not been formally adopted as water quality objectives, the Regional Board would be adopting de facto water quality objectives and/or permit-specific water quality objectives for chlorine, cyanide, lead and zinc without complying with Water Code sections 13241 and 13242, CEQA, or the APA. In addition, a failure to consider economics prior to adopting the effluent limitation would be contrary to guidance issued by the State Board's Chief Counsel: A Regional Water Board is under an affirmative duty to consider economics when adopting water quality objectives in water quality control plans or, in the absence of applicable objectives in a water quality control plan, when adopting objectives on a case-by-case basis in waste discharge requirements. To fulfill this duty, the Regional Water Board should assess the costs of the proposed adoption of a water quality objective. See January 4, 1994 Memorandum from William R. Attwater, Chief Counsel, State Water Resources Control Board, to Regional Water Board Executive Officers and Regional Water Board Attorneys entitled: "Guidance on Consideration of Economics in the Adoption of Water Quality Objectives." The draft permit,does not explain the rationale for the limitations in the permit findings, and has not considered the factors specified in Water Code Section 13241. See In Re Petition of the City and County of San Francisco, et al., Order 95-4, 9995, WL576920, pp. 4-5, 9 (San Francisco). The draft permit's proposed use of USEPA ambient criteria in the same manner and with the same force and effect as formally adopted water quality objectives would also constitute an underground regulation in violation of the APA. Cal. Gov't. Code Section 11340. If Regional Board relied on the February 1994 "Guidance for NPDES Permit Issuance," prepared by USEPA Region IX with the assistance and cooperation of the State Board and the Regional Boards, to establish effluent limitations based on the narrative toxicity objective, that guidance would also constitute an underground regulation in violation of the APA. Cal. Gov't. Code Section 11340. To the extent that the Regional Board has the authority under USEPA regulations and guidelines to apply USEPA ambient criteria to implement the narrative toxicity