VIA ELECTRONIC MAIL. June 27, 2011

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1 VIA ELECTRONIC MAIL June 27, 2011 Teresa Marks, Director Arkansas Department of Environmental Quality 5301 Northshore Drive North Little Rock, AR Attn: Shane Byrum address: Re: Turk Power Plant Proposed NPDES Permit Permit No. AR Dear Director Marks & Mr. Byrum: The Sierra Club submits the following comments on the proposed National Pollutant Discharge Elimination System ( NPDES ) permit for Southwestern Electric Power Co. s John W. Turk, Jr. Power Plant ( Turk ), located on the Little River in Hempstead County. The Sierra Club is a national organization with over 600,000 members and more than 60 chapters including a member chapter in Arkansas. The Arkansas Chapter s membership resides and recreates throughout the state, including along the Little River. The Sierra Club is devoted to the study and protection of the earth s ecological resources, including rivers and streams. An important part of the Sierra Club s current work at both the national and chapter level is its Beyond Coal campaign which, among other things, focuses on environmental and public health problems associated with old coal-fired power plants like the Turk facility. The Sierra Club objects to the issuance of draft NPDES permit No. AR (the Permit ) as proposed because it fails to meet the requirements of the Clean Water Act. Most critically, the draft permit is flawed and contrary to law in several ways: (1), the draft permit impermissibly omits TBELS and/or WQBELS on numerous pollutants that must be regulated, (2), the permit's temperature limits improperly fail to account for the lack of assimilative capacity for added temperature loading to the Little River and Red River, (3), the permit fails to set criteria for when "emergency" discharges from Outfall 2 are allowed, (4) the permit impermissibly allows added chloride loading to a 1

2 water impaired by elevated chloride, (5) the permit sets metals limits based on inadequate background data, (6) the permit fails to include provisions to protect endangered species and prevent degradation of water quality, and (7), the permit impermissibly fails to include acute and chronic whole effluent toxicity limits. Because of the deficiencies identified above and discussed in greater detail below, the draft permit must be substantially amended to bring it into compliance with the requirements of the Clean Water Act, and subsequently re-noticed for public comment. BACKGROUND The Turk facility is a 600 MW coal-fired power plant located on the Little River, in Hempstead County, Arkansas. The draft NPDES permit authorizes Turk to discharge cooling water blowdown combined with various other way streams into the Little River. The point where Turk discharges to the Little River is 1.5 miles upstream of the confluence of the Little River with the Red River. The public comment period for the draft permit ends June 27, Accordingly, these comments are timely submitted. APPLICABLE LEGAL REQUIREMENTS The Clean Water Act s ( CWA ) goal is to eliminate all discharges of pollution into navigable waters. 33 U.S.C. 1251(a)(1). No pollutant may be discharged from any point source without a NPDES permit. 33 U.S.C. 1311(a) and 1342(a). Further, any failure to comply with a permit constitutes a violation of the Clean Water Act. 40 C.F.R (a). The NPDES permit program is an integral part of the CWA s plan to eliminate pollution discharges, and to restore and maintain the health and integrity of the nation s waters. 33 U.S.C The CWA and EPA regulations seek to ensure that the goals are met by imposing a number of requirements through NPDES permits. 1. Technology Requirements. All NPDES permits must impose technology-based effluent limitations ( TBELs ) commensurate with the pollutant reduction or elimination achievable or controlled with application of stringent pollution control technologies. Specifically, TBELs must reflect Best Available Technology ( BAT ) for most pollutants and Best Conventional Technology (BCT) for conventional pollutants. CWA 301(b), 402; 33 U.S.C. 1311(b) and In accordance with the CWA s goal to eliminate all discharges of pollutants, BAT-based TBELs shall require the elimination of discharges of all pollutants if the Administrator finds, on the basis of information available to him... that such elimination is technologically and economically achievable U.S.C. 1311(b)(2)(A). New sources and new dischargers, which include Turk, are also subject to stringent New Source Performance Standards ( NSPS ) set according to the pollutant reduction achievable through application of the best available demonstrated 2

3 control technology (BADCT). See 33 U.S.C. 1316; DuPont v. Train, 430 U.S. 112 (1977). When EPA promulgates national effluent limitation guidelines for a given industry, as EPA has for the steam electric generating industry, those guidelines are the floor the minimum level of control that must be imposed in an NPDES permit for a facility in that industry. See 40 C.F.R (federal effluent limitation guidelines for steam electric generating units); 40 C.F.R (federal NSPS for stream electric generating units). Where EPA has not set effluent limitation guidelines for a pollutant or source or particular category of industry, or where such guidelines are inadequate, a state permitting agency must promulgate permit effluent limitations, in accordance with BAT, BCT and/or NSPS, on a case-by-base basis. 40 C.F.R (c)(2) and (3); see also Texas Oil & Gas Ass n v. EPA, 161 F.3d 923, (5th Cir. 1998). In doing so, the state agency is bound by the same factors that EPA is required to apply in determining TBELs in a permit. See 33 U.S.C. 1342(b) and 1311(b); see also Natural Res. Def. Council v. EPA, 859 F.2d 156, 183 (D.C. Cir. 1988). Those factors are: the production process in use and the possibility of changing processes; the non-water-quality impacts of controlling pollution; the age of equipment; the costs of pollution control; and the engineering aspects of various control techniques. 22 U.S.C. 1314(b)(2)(B); 40 C.F.R (d)(3). In applying the factors, the agency must consider the best state of the art practices in the industry, again to ensure the goals of the CWA are met. Congress intended these [BAT] limitations to be based on the performance of the single best-performing plant in an industrial field. Chem. Mfrs. Ass n v. EPA, 870 F.2d 177, 226 (5th Cir. 1989); Texas Oil & Gas Ass n v. EPA, 161 F.3d at 927; see also Am. Frozen Food Inst. v. Train, 539 F.2d 107, 132 (D.C. Cir. 1976). A technology is considered available where there is or has been practicable use within an industry. In fact, courts have held that even where no plant in a given industry has adopted a pollution control device which could be installed does not mean that the device is not available, thus ensuring that industry cannot game the system by all agreeing to not adopt the latest, best pollution control technology. Hooker Chems. & Plastics Corp. v. Train, 537 F.2d 620, 636 (2d Cir. 1976). A discharger of pollutants may also be required to transfer a particular technology that has been used in another context where the transfer is practicable. See, e.g., Reynolds Metals Co. v. EPA, 760 F.2d 549, 562 (4th Cir. 1985); Tanner s Council of Am. v. Train, 540 F.2d 1188, 1192 (4th Cir. 1976). With respect to economic considerations, a technology is economically achievable under the BAT standard if it is affordable for the best-run facility within an industry. BAT should represent a commitment of the maximum resources economically possible to the ultimate goal of eliminating all polluting discharges. Natural Res. Def. Council v. EPA, 863 F.2d 1420, 1426 (9th Cir. 1988) [citations omitted]; see also EPA v. Nat l Crushed Stone, 449 U.S. 64, 74 (1980) (if a discharger of pollutants can afford the best available technology, then it must meet, and should not be allowed a variance from, stringent BAT limits.) 3

4 Generally, EPA promulgates BAT, BCT and NSPS requirements by nationally applicable effluent guideline regulations, but, in some cases it has not yet done so. Most notably, it has not yet promulgated effluent guidelines for many heavy metals associated with wastewater discharges related to coal ash handling and flue gas desulfurization (FGD), although it is hurrying to do so, having recognized the major public health risk it poses. 1 Sources emitting discharges in this category do not get a free pass. Instead, permit writers are to impose such conditions as [they] determine[ ] are necessary to carry out the provisions of the CWA, as a matter of best professional judgment, or BPJ. See 33 U.S.C. 1342(a)(1)(B). 2. Water Quality Requirements. If a discharge causes or contributes, or has the reasonable potential to cause or contribute to a violation of water quality standards despite the requirements of TBELs, the permitting agency must also include any limits in the NPDES permits necessary to ensure that water quality standards are maintained and not violated. CWA 301(b)(1)(C), 33 U.S.C. 1311(b)(1)(C). EPA regulations further require NPDES permits to include such water quality-based effluent limitations ( WQBELs ) whenever an effluent discharge has the reasonable potential to cause or contribute to a failure to attain WQS. 40 C.F.R (d)(1); e.g., In the Matter of Star-Kist Caribe, Inc., 3 E.A.D. 172; 1990 EPA App. LEXIS 45 at *11-*12 (U.S. EPA Administrator April 16, 1990). WQS are federal or state regulations establishing the designated uses of a water body and the water quality criteria needed to ensure attainment of those designated uses. CWA 303(c)(2)(A), 33 U.S.C. 1313(c)(2)(A); 40 C.F.R (i); see generally Pronsolino v. Nastri, 291 F. 3d 1123, 1127 (9th Cir. 2002). Water quality criteria can be expressed as numeric values or as narrative statements about the quality of water needed to attain designated uses. 40 C.F.R (h). When WQS include numeric water quality criteria for given pollutants, then numeric WQBELs are derived from those water quality criteria. 40 C.F.R (d)(1)(iii). When WQS include only narrative criteria that address given pollutants, the NPDES permitting agency must still impose a numeric WQBEL sufficient to lead to attainment of the narrative criteria. 40 C.F.R (d)(1)(vi); American Paper Inst., Inc. v. EPA, 996 F.2d 346, 350 (D.C. Cir. 1993); American Iron and Steel Inst. v. EPA, 115 F.3d 979, 992 (D.C. Cir. 1997); Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 502 (2d. Cir. 2005). 3. Antidegradation Requirements. The CWA and EPA regulation again in furtherance of the goals of the CWA to maintain the integrity of our waters require states to have and implement an antidegradation policy. The policy is to ensure that, even after application of stringent treatment technologies and ensuring that a discharge does not violate or contribute to the 1 See Charles Duhigg, Cleansing the Air at the Expense of Waterways, New York Times (Oct. 13, 2009) ( In interviews, E.P.A. officials said that toughening pollution rules for power plants was among their top priorities. ); see also EPA Effluent Limitations Guidelines website, (discussing this priority). 4

5 violation of water quality standards, waters are not polluted up to a water quality standard (i.e. discharges should not use all the assimilative capacity of waters) by virtue of incremental changes over time. The antidegradation requirement is an ongoing requirement which must be examined, considered, and complied with each time a permitting agency renews a permit or issues a new permit. 2 All existing uses of all waters must be maintained and protected. For waters that exceed quality levels necessary to support fish, wildlife and human contact, that cleaner level of quality shall be maintained and protected absent a finding, after public process, that allowing a lower quality is necessary to accommodate important economic or social development and only after the state has ensured that the highest statutory and regulatory requirements are employed. Finally, for outstanding national resource waters, the most pristine level of water quality must be maintained and no degradation allowed. 40 C.F.R ; see also 33 U.S.C. 1313(d)(4)(B). As noted by the court in Shank [t]he requirements of the Federal Clean Water Act are comprehensive and interconnected. Shank, 65 Ohio St. 3d at 100. A NPDES permit must comply with all three moving parts with the ultimate consideration being the preservation and restoration of the water and the elimination of discharges of pollutants wherever possible. Applicable Arkansas water quality standards designate uses for the Little River and Red River as for primary and secondary contact recreation, raw water source for domestic (public and private), industrial, and agricultural water supplies, propagation of desirable species of fish and other aquatic life, and other compatible uses. The reach of the Red River just downstream of the confluence of the Little River and the Red River is a degraded water body listed on the Clean Water Act section 303(d) list due to impairment by elevated chloride and total dissolved solids. Thus, avoiding further degradation of this water is particularly important. 4. Mixing Zone Requirements. EPA and the states have in some instances allowed the use of mixing zones. 3 Mixing zones may, if provided for in a state s EPA approved water quality standards, be used in a permit under certain prescribed conditions. 40 C.F.R ; see also Section 5, USEPA Water Quality Standards Handbook: Second Edition, EPA 823-B a, Office of Water (updated July 2007). Careful consideration must be given to the appropriateness of mixing zones when a discharge includes bioaccumulative or persistent pollutants. Id. at A permitting agency must also consider whether a mixing zone 2 For an excellent overview and description of how all these pieces of the CWA work together to ensure the CWA s goals, see the court s discussion in Columbus & Franklin Cty. Metro. Park Dist. v. Shank, 65 Ohio St. 3d 86, 96-99, 600 N.E.2d 1042 (1992). 3 The Sierra Club objects generally to the use and allowance of mixing zones, believing them to be unlawful under the CWA and inconsistent with its goals and requirements. Without waiving that objection, the Sierra Club includes this discussion of the federal and state regulatory requirements for the use of mixing zones. 5

6 is appropriate if a water body serves as a pathway for migrating and/or spawning anadromous fish. Id. at Concentrations above the chronic criteria must also be avoided, with particular concern for benthic and territorial organisms. Id. SUBSTANTIVE COMMENTS The following discussion sets forth in detail the Sierra Club s objections to and concerns with the draft permit. A. The Draft Permit Impermissibly Omits TBELs and/or WQBELs on Numerous Pollutants That Must Be Regulated. It is well documented and authoritatively recognized by the US EPA that FGD wastewaters and wastewater generated from coal ash containment facilities is heavily polluted with a wide range of pollutants. 4 Yet, the draft permit impermissibly only imposes TBELs and WQBELs on only a very small list of pollutants. 5 The draft permit fails, for example, to impose limits on arsenic, mercury, selenium, or nitrogen compounds, even EPA has expressly recognized that these pollutants are present in FGD wastewaters. 6 EPA data further demonstrates that coal ash contains numerous toxic chemicals, heavy metals and other pollutants, including arsenic, aluminum, barium, beryllium, boron, cadmium, cobalt, copper, iron, lead, manganese, molybdenum, nickel, nitrates and nitrites, selenium, and zinc 7 posing health risks that are highly troubling. As one expert recently summarized in Congressional testimony: Coal combustion waste has numerous inorganic constituents, many of which are associated with health effects in studies of animal or human exposures..... Management of coal combustion waste is a national issue that affects communities around the country where disposal sites are located..... Several coal combustion waste constituents share a common type of toxicity or target organ or system. Three coal combustion waste constituents have neurological effects (aluminum, lead, manganese); three (barium, cadmium, mercury) have effects on the kidney; three have a variety of effects on blood (cobalt, thallium, zinc); two have effects on the gastrointestinal system (beryllium 4 EPA Memo. from James A. Hanlon re: National Pollutant Discharge Elimination System (NPDES) Permitting of Wastewater Discharges from Flue Gas Desulfurization (FGD) and Coal Combustion Residuals (CCR) Impoundments at Steam Electric Power Plants (Jun. 7, 2010) (hereinafter Hanlon Memo ), available at d ; U.S. EPA Steam Electric Power Generating Point Source Category; Final Detailed Study Report, Office of Water, 821-R , October 2009, available at /guide/steam/finalreport.pdf 5 These are: residual chlorine, temperature, total chromium, zinc, chloride, TDS, oil and grease, and ph. 6 Id. 7 See Eric Schaeffer & Lisa Evans, Coming Clean: What the EPA Knows About the Dangers of Coal Ash (May 2009) US EPA Steam Electric Power Generating Point Source Category: Final Detailed Study Report, at 3-22 (coal pile runoff may contain high concentrations of copper, iron, aluminum, nickel, and other constituents ) 6

7 and copper). If exposures to these mixtures occur, there is a greater chance of increased risk to health. 8 The draft permit omits limits on nearly all of these pollutants. In imposing TBELs, ADEQ has mostly limited its consideration to the very short list of pollutants set forth in EPA s current effluent guidelines for the steam electric generating industry. EPA has made plain that state agencies with authority to issue NPDES permits must engage in a wider consideration of what are appropriate TBELs to impose as EPA has expressly recognized that its effluent guidelines for the industry, promulgated in 1982, are woefully out of date and do not reflect widely known current information about the breadth of pollutants present in FGD wastewaters. In keeping with current EPA guidance, ADEQ must perform a reasonable analysis of additional pollutants to set TBELs for based on BPJ. 9 EPA has made it clear that use of BPJ for scrubber waste is mandatory, 10 and it is not an option for states to issue permits for such facilities with less stringent requirements. EPA guidance, reports, and similar documents, and more sophisticated permits from other states are the type of resources state officials could have and must rely upon in establishing BPJ-based TBELs for FGD related effluent discharges. 11 EPA has a variety of resources regarding permit writing available on their website that directs permit writers, including in delegated states like Arkansas, to use appropriate BPJ and BAT limitations in the absence of adequate promulgated effluent guidelines where necessary. 12 In setting WQBELs, ADEQ has also truncated its analysis to a very short list of pollutants while ordering the applicant to perform a future priority pollutant scan of its effluent discharge to gather more information concerning the presence of pollutants in its effluent. This short-sighted approach fails to adhere to the Clean Water Act s mandate to 8 Testimony of Mary A. Fox, Ph.D., M.P.H., before the House Subcommittee on Energy and Mineral Resources, Committee on Natural Resources, U.S. House of Representatives (June 10, 2008). 9 Hanlon Memo (See Attachment C to this comment letter). Within the Hanlon memo is also referenced Attachment A- Technology based Effluent Limits FGD Wastewater at Steam Electric Facilities which is Attachment D to this comment letter to be included as part of the record. 10 Hanlon Memo 11 EPA, NPDES Permit Writers Manual, EPA-833-B (Dec. 1996) (hereinafter NPDES Manual at p (listing tools that permit writers can rely on in setting BPJ limits), available at 12 Id.; EPA, Writing NPDES BAT Permits in the Absence of Promulgated Effluent Guidelines (Jun. 25, 1980), available at EPA s NPDES website contains reference permits and fact sheets from similar facilities. EPA, EnviroFacts Data Warehouse, available at EPA, View NPDES Individual and General Permits, available at EPA Treatability Database, available at ments&program_id=45&sort=name This information can help permit writers learn about model technologies and treatment efficiencies. EPA, Technology-based Effluent Limitations for Non-POTWs, slides 43-45, available at 7

8 look before you leap. ADEQ can and must perform a reasonable potential analysis of the pollutants likely to be present in Turk s discharge based on its similarity to discharges from analogous facilities and set WQBELs for all pollutants with the reasonable potential to cause or contribute to an exceedance of water quality standards for Little River and Red River. This list of pollutants should include most if not all of those discussed in the preceding paragraph. B. The Permit s Temperature Limits Are Improper. ADEQ s calculations showing that Turk can discharge effluent with an elevated temperature of 95 degrees F and still not cause or contribute to an exceedance of water quality standards is flatly erroneous. In fact, existing data shows that the Little River and Red River have no assimilative capacity to absorb added heat inputs. Existing temperature data available on the USGS website demonstrates that there were 13 occasions over the 18 years covered by the USGS website s temperature data when the temperature of the river was at or above the water quality standard of 86 degrees. 13 When a stream has no capacity to absorb a pollutant, the limit has to be the water quality standard. By adding additional increment of temperature to streams lacking assimilative capacity, Turk s discharge is certain to cause exceedance of water quality standards for temperature. ADEQ s calculations set forth in its Fact Sheet (at page 26) used to determine compliance with temperature criteria were done using data from the Millwood Dam USGS gage from 1967 to 1980 for flow and 1967 to 1995 for temperature. This is very outdated data that would not reflect, for example, the effects of climate change to date, much less any reasonable projection of how continuing climate change is likely to effect temperature and flow in the Little River and Red River. ADEQ should redo this analysis based on more current temperature and flow data and should attempt to estimate the effect of climate change on temperature and flow in the ensuing years that will be covered by the permit. ADEQ s flawed calculations show an expected increase in ambient water temperature of 4.9 ºF, just under the applicable water quality standard requirement of not causing temperature increases of more than 5.0 ºF. These calculations further show a maximum increase in ambient water temperature to 85.7ºF, just under the applicable water quality standard of 86ºF. Considering the lack of current data and simplistic mixing calculation upon which these calculations are based, it is unreasonable for ADEQ to conclude that this analysis constitutes a reasonable basis for concluding that the 95 degree temperature limit is sufficient to avoid exceedances of water quality standards due to the discharge. Indeed, the analysis actually shows that with slight variation in ambient 13 See Attachment A (Notepad text file) and Attachment B (same information, but in a Word file) to this comment letter. Also, one can retrieve the file at the USGS website: The search for the file can also be done by visiting: then checking the Site Number box, clicking submit, and then enter the Little River site number On the site for , choose Field/Lab water quality samples. Then select Parameter Group Period of Record Table. Hit submit and then on the next page choose All-include parameter groups. The file will then come up covering the years The code for temperature is within the document. 8

9 temperature or flow (such as during a drought) deviating from the assumed conditions reflected in the analysis, Turk s discharge will cause violations of the temperature water quality standards. Notably, ADEQ s calculation of maximum temperature inappropriately mixes data by using average upstream data as the input to the mixing equation, to calculate the maximum downstream value. ADEQ s calculations should use maximum temperature data for both. In sum, the evidence actually points out the need for a significantly more stringent temperature limit to ensure that Turk s discharges do not cause water quality standards to be exceeded. C. The Permit Fails To Set Criteria for When Emergency Discharges From Outfall 2 Are Allowed. The permit describes discharge from Outfall 2 as being to a small tributary of Bridge Creek, and as being for an emergency overflow spillway. The permit lacks any restrictions that limit use of this outfall for any defined emergency use and further lacks any definition of what constitutes an emergency. The permit should be amended to specify when discharges from the emergency overflow point are permissible. Effluent limits should be tailored to the frequency of these discharges and their accordant potential impact. ADEQ should duly consider that given the size of this tributary, significant volumes of effluent discharge could constitute most of the stream flow. Limits should be set with this factor duly accounted for. D. The Permit Impermissibly Allows Added Chloride Loading to a Water Impaired by Elevated Chloride. The Fact Sheet impermissibly allows Turk to discharge a new source of chloride to the Little River, a direct tributary to the Red River, even though the Red River is listed on the Clean Water Act section 303(d) list as impaired for chloride. The Fact Sheet rationalizes that the discharge of a pollutant to a water body impaired for that pollutant is permissible if that pollutant is discharged at a level below that of the applicable water quality standard. The Fact Sheet points out, however, that the level of chloride in the Turk discharge/turk s limit for chloride is 250 mg/liter. This is above the water quality standard for the Red River of 20 mg/liter which per se makes this limit unlawful. The permit must be revised to impose a chloride limit of 20 mg/liter. ADEQ s use of a mixing zone analysis in this context is improper, as the clear legal requirement is that the level of chloride be below the applicable water quality standard at the point of discharge, not at the edge of a mixing zone. E. The Metals Limits Are Based on Inadequate Background Data. As with its calculations of temperature limitations, ADEQ relies on out-of-date data concerning the background values used for metals in receiving waters to calculate compliance with water quality standards. For example, the zinc background data relied upon by ADEQ is again from the Millwood Dam USGS station from 1979 to If no 9

10 data are available newer than sixteen years ago, new sampling is needed (for statistically valid multiple samples, dates, and conditions) to accurately determine background ambient river quality to determine whether additional loading of zinc from the Turk discharge will not cause exceedances of applicable water quality standards. F. The Permit Fails To Include Provisions to Protect Endangered Species and Prevent Degradation of Water Quality. The Little River and Red River provide habitat for species listed as endangered under the federal Endangered Species Act: the Ouachita Rock Pocketbook mussel, the Paddlefish Sturgeon and the Shovelnose Sturgeon. These species require appropriate water temperatures and high water quality for their habitat needs. Turk will discharge water with elevated temperature and new pollutants, including various toxic pollutants, to these species habitats, thus degrading the quality of the water needed for these species to survive and recover. Indeed, as discussed above, the Little River and Red River have no assimilative capacity to absorb added heat inputs as existing temperature data available on the USGS website demonstrates that there were 13 occasions over the 18 years covered by the USGS website s temperature data when the temperature of the river was at or above the water quality standard of 86 degrees. When a stream has no capacity to absorb a pollutant, the limit has to be the water quality standard. By adding additional increment of temperature to streams lacking assimilative capacity, Turk s discharge is certain to cause exceedance of water quality standards for temperature. Accordingly, the Turk discharge will be in violation of the Antidegradation Policy and water quality standards set forth in APC&EC Regulation No. 2 which require discharges not to impair designated uses, including the provision of habitat for desirable species. The Permit should require the Turk discharge not to raise temperature above baseline conditions or otherwise degrade water quality with the addition of new toxic pollutants. G. The Permit Impermissibly Fails To Include Acute and Chronic Whole Effluent Toxicity Limits. Turk s discharge will contain elevated levels of numerous pollutants that are well known to be toxic, as discussed above. If ADEQ were to perform a proper reasonable potential analysis in accord with 40 C.F.R (d)(1), ADEQ would conclude that Turk s discharge has the reasonable potential to exhibit the characteristic of whole effluent toxicity in violation of Arkansas narrative water quality standard prohibiting the discharge of toxics in toxic amounts. ADEQ would further impose both numeric, enforceable acute and chronic whole effluent toxicity limits, rather than merely requiring the applicant to monitor chronic whole effluent toxicity. Consistent with long-established EPA guidance, compliance with a narrative WET standard must be determined by considering both the acute and chronic toxicity of a discharge. U.S. EPA, Technical Support Document for Water Quality-based Toxics Control, EPA/505/ , page 4 10

11 (March 1991) ( [t]he whole effluent approach to toxics control involves the use of acute and chronic toxicity tests. ). CONCLUSION For the foregoing reasons, the draft permit must be substantially revised and renoticed for public comment as per 40 C.F.R (b). The Sierra Club adopts all comments submitted by other persons, firms or entities on the proposed permit that are not inconsistent with the comments set forth above. Sincerely, /s/ Lev Guter Associate Organizing Representative Sierra Club 1308 W. 2 nd Street Little Rock, AR Office phone: (501) Work lev.guter@sierraclub.org 11