SITE INFORMATION AND CORRESPONDENCE_CASE 2

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REGIONAL WATER BOARD RESPONSE (SWRCB/OCC File A-1846(a) and A-1846(b)) -14- PETITIONS FOR REVIEW OF W/ DISCHARGE REQUIREMENTS J ORDER NO. R5-2007-0036(NPDE NO. CA0079154)AND TIME SCHEDULE ORDER NO. R5-2007-0037 CITY OF TRACY, WASTEWATER TREATMENT PLANT The Order protects aquatic life beneficial uses by implementing numerous measures to control individual toxic pollutants and whole effluent toxicity. Both the acute limits and receiving water limits are consistent with numerous NPDES permits issued by the Regional Water Board and throughout the State and are appropriate. CSPA — CONTENTION E: The Order fails to contain an effluent limitation for chronic toxicity. The Order requires the Discharger to conduct an investigation of the possible sources of toxicity if a threshold is exceeded. This language is not a limitation and essentially eviscerates the Regional Board's authority, and the authority granted to third parties under the Clean Water Act, to rind the Discharger in violation for discharging chronically toxic constituents. An effluent limitation for chronic toxicity must be included in the Order. The SIP contains implementation gaps regarding the appropriate form and implementation of chronic toxicity limits. This has resulted in the petitioning of an NPDES permit in the Los Angeles Region that contained numeric chronic toxicity effluent limitations. As a result of this petition, the State Water Board adopted WQO 2003-012 directing its staff to revise the toxicity control provisions in the SIP. The State Water Board states the following in WQO 2003-012, "In reviewing-this petition and receiving comments from numerous interested persons on the propriety of including numeric effluent limitations for chronic toxicity in NPDES permits for publicly-owned treatment works that discharge to inland waters, we have determined that this issue should be considered in a regulatory setting, in order to allow for full public discussion and deliberation. We intend to modify the SIP to specifically address the issue. We anticipate that review will occur within the next year. We therefore decline to make a determination here regarding the propriety of the final numeric effluent limitations for chronic toxicity contained in these permits." The process to revise the SIP is currently underway. Proposed changes include clarifying the appropriate form of effluent toxicity limits in NPDES permits and general expansion and standardization of toxicity control implementation related to the NPDES permitting process. Without the toxicity control provisions in the SIP, the State Water Board concluded that it is infeasible to develop numeric effluent limitations for chronic toxicity. (WQO 2003-0012, pp. 9- 10.) Therefore, the Order requires that the Discharger meet best management practices for compliance with the Basin Plan's narrative toxicity objective, as allowed under 40 CFR 122.44(k). In addition, the Permit includes a narrative receiving water limit (Section V.A.14) and whole effluent toxicity testing requirements for both acute and chronic toxicity. CSPA — CONTENTION F. The Order violates state and federal endangered species acts. The Order allows acute toxicity, fails to limit chronic toxicity, and includes inadequate effluent limits for temperature, ammonia, and dissolved oxygen that are not protective of listed species. The Order is likely to result in the illegal "take"of listed species and will likely result in the destruction or adverse modification of critical habitat in violation of Section 9 of the federal Endangered Species Act (ESA).