Fairmont Products v. DEP; EHB Doc. No. 95-155-C [26 Pa.B. 718] The Department of Environmental Protection and Fairmont Products have agreed to a settlement of the above matter.
On June 23, 1995, the Department of Environmental Protection (formerly called the Department of Environmental Resources) issued National Pollutant Discharge Elimination System Permit No. 0009571 (the permit) to Fairmont, authorizing the discharge of noncontact cooling water from its facility in Belleville, PA to an unnamed tributary (UNT) to Little Kishacoquillas Creek, in Union Township, Mifflin County, PA.
On or about July 21, 1995, Fairmont filed an appeal of the issuance of the permit with the Environmental Hearing Board, EHB Docket No. 95-155-C.
Fairmont's appeal challenged a number of issues, including, but not limited to, the effluent limitations and monitoring requirements for each individual outfall, and the thermal discharge limitations for each individual outfall.
Fairmont previously submitted inaccurate flow information to the Department. As a result of new information submitted by Appellant, the Department has determined that the permit should be amended, as more fully set forth below.
The parties have agreed to a settlement, the major provisions of which include:
The Board orders, and Fairmont and the Department hereby agree as follows:
1. Within 60 days of execution of this Consent Order and Adjudication, Fairmont will present to the Department a request for a thermal variance under 25 Pa. Code § 97.82 and section 316 of the Clean Water Act, 33 U.S.C.A. § 1326, and a study plan to survey the receiving stream. The purpose of the study plan is to demonstrate that alternate thermal effluent limitations will not adversely impact the indigenous aquatic community in the receiving water body.
2. The study plan will consist of a thermal profile of the receiving stream, and a comprehensive biological survey of the creek. From early Spring 1996 until November 1996, Fairmont shall implement the study plan, as approved by the Department. Fairmont will conduct two aquatic field investigations to coincide with the critical periods for inhabitant aquatic biota, during the month of August 1996, and during the month of November 1996. These field investigations will consist of the following:
a. Benthic macroinvertebrate sampling at each station;
b. Fin fish sampling at each of the established stations;
c. Thermal profile sampling at each station.
Additionally, Fairmont will conduct a benthic macroinvertebrate analysis in early spring 1996.
3. On or before January 31, 1997, Fairmont shall submit to the Department a final report concerning the proposed alternate thermal effluent limits.
Additionally, after the Environmental Hearing Board's execution of this Consent Order and Adjudication, Fairmont shall evaluate its housekeeping practices and/or its management of its heat discharge at the Belleville facility, to identify and characterize problems in controlling and limiting any wide variations in its heat discharge. On or before January 31, 1997, Fairmont shall also submit to the Department, for the Department's approval, its recommendations, if any, concerning modifications to its housekeeping practices and/or its management of the facility's heat discharge.
4. The Department will review Fairmont's report concerning the proposed alternate thermal effluent limits, and on or before January 31, 1997, the Department will notify Fairmont of the Department's determination whether Fairmont has successfully demonstrated that such alternate thermal effluent limitations will not adversely impact the indigenous aquatic community in the receiving stream.
5. Upon the Department's determination that Fairmont has successfully demonstrated that alternate thermal effluent limitations will not adversely affect the indigenous aquatic community in the receiving stream, within 60 days of the Department's notice of that determination, the Department shall issue Fairmont a thermal variance under 25 Pa. Code § 97.82(a)(2) and section 316(a) of the Clean Water Act, 33 U.S.C.A. § 1326, and will issue a draft amended permit with the thermal variance.
Within 60 days of the Department's notice of its determination concerning the thermal variance, Fairmont shall also implement any modifications to its housekeeping practice and/or its management of its heat discharge, as approved by the Department.
6. Alternatively, upon the Department's determination that Fairmont has failed to successfully demonstrate that alternate thermal effluent limitations will not adversely affect the indigenous aquatic community in the receiving stream, Fairmont shall achieve compliance with the final effluent limitations, as described below, or terminate the discharge in accordance with the following schedule:
Feasibility study completion
May 31, 1997Compliance with effluent limitations
July 31, 19977. Fairmont's NPDES Permit No. Pa. 0009571 is hereby modified as follows:
a. All of the pages of the Amended Permit are called Amendment No. 1.
b. Page 2, Part A, I, the Discharge Limitations chart for Interim Effluent Limitations is modified in accordance with the chart detailed in the Consent Order and Adjudication.
Page 2, Part A, I. (1), the discharge limitations for outfalls 001, 002, 003 and 004 were determined using a combined effluent discharge rate of .2 million gallons per day.
c. Page 2A, Part A, 1, the discharge limitations chart for final effluent limitations is in accordance with the chart detailed in the Consent Order and Adjudication.
d. Page 2A, Part A, I. (1), the discharge limitations for Outfalls 001, 002, 003 and 004 were determined using a combined effluent discharge rate of .2 million gallons per day.
e. Page 12, Part C.I.B. For the combined discharge from Outfalls 001, 002, 003 and 004, the permittee shall comply with the following thermal discharge limitations:
Period Interim
Allowable WasteFinal Allowable Waste
Temperature (°F)Jan 1-31 97 97 Feb 1-29 86 86 Mar 1-31 110 110 Apr 1-30 110 110 May 1-31 79 79 Jun 1-30 75 75 Jul 1-31 73 73 Aug 1-31 72 72 Sep 1-30 70 67 Oct 1-31 70 57 Nov 1-30 70 55 Dec 1-31 95 95 Permittee shall comply with the interim allowable waste temperatures listed above until permittee has submitted to the Department's review the permittee's final report concerning the impact of the alternate thermal effluent limitations on the indigenous aquatic community in the receiving water body.
In the event that the Department determines that Fairmont has successfully demonstrated that the alternate thermal effluent limitations will not adversely affect the indigenous aquatic community in the receiving water body, the Department will issue a thermal variance under 25 Pa. Code § 97.82(a)(2) and section 316(a) of the Clean Water Act, 33 U.S.C.A. § 1236, and will base the thermal variance on the results of Fairmont's study.
In the event that the Department determines that Fairmont has failed to successfully demonstrate that the alternate thermal effluent limitations will not adversely affect the indigenous aquatic community in the receiving water body, then Fairmont shall achieve compliance with the final effluent limitations, in accordance with the schedule set forth in Part C.
f. Page 12, Part C, I. for the combined discharge from Outfalls 001, 002, 003 and 004, in order to demonstrate compliance with thermal discharge limitations, the permittee shall monitor at the following locations:
Parameter Units Monitoring Location Waste discharge
Temperature, Td°F On UNT Little Kisha-
coquillas Creek 5 ft. Upstream of the Confluence of Little Kishacoquillas CreekUpstream Temperature, Tup °F On Little Kishacoquillas Creek 25 ft. Upstream of the Confluence with UNT Little Kishacoquillas Creek Downstream
Temperature, Tdown°F On Little Kishacoquillas Creek 30 ft. Downstream of the Confluence with UNT Little Kishacoquillas Creek g. Page 15, Part C, the Compliance Schedule is as follows:
SCHEDULE OF COMPLIANCE Fairmont Products shall submit a study plan to survey the receiving stream. Within 60 days of the EHB's execution of this document. Fairmont Products shall implement the study plan. Spring 1996--
November 30, 1996Fairmont Products shall submit a final report concerning the proposed alternate thermal effluent limits. January 31, 1997 Fairmont Products shall submit a report concerning its housekeeping practices and/or management of heat discharge to limit wide variations in heat discharge. January 31, 1997 The Department will review the report concerning the proposed alternate thermal effluent limits and notify Fairmont Products of the Department's determination concerning the thermal variance. March 31, 1997 The Department will review the report concerning Fairmont's housekeeping practices and/or its management of heat discharge to limit wide variations in heat discharge. March 31, 1997 In the event that the Department determines, under Paragraph f of the Consent Order and Adjudication entered between the Department and Fairmont Products, that Fairmont Products has failed to successfully demonstrate that the alternate thermal effluent limitations will not adversely affect the indigenous aquatic community in the receiving water body, then the permittee shall achieve compliance with the final effluent limitations or terminate this discharge in accordance with the following schedule:
Feasibility study completion May 31, 1997 Compliance with effluent limitations July 31, 1997 No later than 14 calendar days following a date identified in the above schedule of compliance, the permittee shall submit to the Department a written notice of compliance or noncompliance with the specific schedule requirements(s). Each notice of noncompliance shall include the following information:
1. A short description of the noncompliance.
2. A description of any actions taken or proposed by the permittee to comply with the elapsed schedule requirement.
3. A description of any factors which tend to explain or mitigate the noncompliance.
4. An estimate of the date that compliance with the elapsed schedule requirement will be achieved and an assessment of the probability that the next scheduled requirement will be met on time.
Copies of the full agreement are in the hands of:
Gary A. Peters, Esq., Howard & Howard Attorneys, P.C., 1400 North Woodward Avenue, Suite 101, Bloomfield Hills, MI 48304-2856;
Beth Liss Shuman, Esq., Department of Environmental Protection, 9th Floor Rachel Carson State Office Bldg., 400 Market Street, Harrisburg, PA 17101-2301;
and at the office of the Environmental Hearing Board, and may be reviewed by any interested party on request during normal business hours.
Persons who are aggrieved by the above settlement have a right to appeal to the Environmental Hearing Board, 2nd Floor, Rachel Carson State Office Building, 400 Market Street, Post Office Box 8457, Harrisburg, PA 17105-8457.
If information concerning this notice is required in an alternative form, contact the Secretary to the Board at (717) 787-3483. TDD users may telephone the Board through the AT&T Pennsylvania Relay Center at 1 (800) 654-5984.
Appeals shall be filed within 20 days of this publication.
The Environmental Hearing Board is empowered to approve this settlement which becomes final if no objection is timely made.
GEORGE J. MILLER,
Chairperson[Pa.B. Doc. No. 96-222. Filed for public inspection February 16, 1996, 9:00 a.m.]
