from \eHer Lo Eotevk" 3. ancksinej Execu?dw Sow-ham}, wakv EQSOMUS Commissuan duh?! Most of - the explicit recommendations contained in my comments on Rule 57 and the Rule 57 Advisory Committee have been omitted from the summaries of significant public comment. Among the most significant: 1. constitutional and statutory authorities to adopt acceptable cancer risk-based water quality standards and effluent limits should be evaluated by the Attorney General prior to their adoption by the Water Resources Commission the policies and procedures to be employed in translating the general narrative toxic substances standard into site-specific quantitative standards should be promulgated per the requirements of the Administrative Procedures Act the people should be allowed greater access to and participation in the development of rules, policies, procedures and guidelines implementing toxic substance regulation provisions under the Michigan Water Resources Commission Act (1929 P.A. 245, as amended); environmental groups and interests should be better represented on advisory committees and commissions evaluating the proposed toxic substances standards and effluent?limit derivation procedures; (O Robert C?erchaine November 22, Page 2 5. 1982 per the requirements of Executive Order 1974?4, an Environmental Impact Statement should be developed and published for each known and reasonably suspect human genotoxic substance whose presence in and discharge to the waters of the state the NRC intends to make lawful with the adoption of proposed Rule 57 and the associated effluent limit derivation procedures; my alternative language should be given careful consideration by the WRC and its advisory com- mittees prior to adoption of the final version of Rule 57 and the water quality-based effluent limit derivation procedures. (My alternative language makes important legal and technical distinctions regarding the burdens of proof and tests of evidence that must be met in making lawful the presence in and discharge to the waters of the State of known and reasonably suspect genotoxic substances). None of the questions I have asked to date regarding the derivation of water quality?based effluent limits and their application in the NPDES Permit Program have been answered to date. Among the most significant: 1. What substances are regulatable as toxic substances under Sections 2a(l), 5, 7(1) and 7(2) of 1929 P.A. 245, as amended - the Michigan Water Resources Commission Act (the Act)? How are toxic substances regulatable under the Michigan NPDES Permit Program established? The discharge of what quantities and concentrations of each of the substances regulatable under the Michigan NPDES Permit Program as toxic are report- able in an NPDES Wastewater Discharge Permit Application? The discharge of what reportable quantities and concentrations of substances regulatable under the Michigan NPDES Permit Program as toxic need not be limited in an NPDES permit? The discharge of what quantities and concentrations of each of the substances regulatable under the Michigan NPDES Permit Program as toxic are a vio? lation of Section 6(a) of the Act? What physical, chemical, biological, ecological and toxicological properties of a substance must be known to permit the estimation of the risk of injury to the public health with a degree of accuracy considered acceptable? Robert .Archaine November 22, 1982 Page 3 7. What margins of safety are factored into the estimation of risk to assure the protection of the public health at the design "acceptable" risk to a degree of statistical confidence considered adequate? Section 6(a) of 1929 P.A. 245 makes it unlawful to discharge any substance which is or may become injurious to the public health, safety and welfare; and to the uses to which the water resources are or may be put.- A DNR staff interpretation of the water quality standard making lawful the presence of human genotoxic substances in drinking, agri- cultural and recreational water supplies and fisheries would thus be contrary to statute and, therefore, unlawful. The DNR must develop and publish an Environmental Impact Statement for each known and reasonably suSpect genotoxic substance whose presence in concentrations estimated to represent an "acceptable" risk of human health injury or death the NRC intends to make lawful in the waters of the State designated for use as a human or agricultural water supply, full or partial body contact recreational area, or sport or commercial fishery. If the DNR fails to do this in a timely fashion, shall pursue such administrative and judicial remedies as are available to me to protect my right to life via due process of law and to force the State to meet the requirements of constitution, statute, rule and executive order in administering the Federal Clean Water Act Permit Program (under a state take?over agreement) and the Michigan Water Resources Commission Act. I i The fonesiqhi Mr. Paul Zugger Executive Secretary Water Resources Commission P.0. Box 30028 Lansing, MI 48909 Dear Mr. Zugger: The NPDES Permit MI 0043478 to be issued to Chemical Specialties, Inc. of Caledonia, Michigan should include effluent limitations without monitor? ing requirements for each Michigan Critical Material and EPA Section 307(a) toxic pollutant used or produced at the facility for each permitted outfall, irrespective of the claim that the discharge is limited to unadulterated non-contact cooling water. Chemical substances or mixtures are inherently dangerous instrumenta? lities. Thus, the manufacturer or formulator is strictly liable for any injury to persons or property resulting from the escape of the chemical substance or mixture from its control. Although the release of a chemical substance or mixture to the environment in conformance with the requirements of a lawfully issued permit does not abrogate this strict liability, to the extent possible the state should exercise its authority to regulate the discharge of chemical substances and mixtures to its waters consistent with the common law recognition of chemical substances or mixtures as inherently dangerous instrumentalities and its responsibilities to assure the protection of the natural resources from'pollution, impairment and destruction. Both Federal and State law prohibit the discharge of any pollutant to navigable waters without a valid NPDES permit. A valid NPDES permit shall not issue until a complete and accurate application has been received and acted upon by the Water Resources Commission. A mere claim that a discharge is non-contact cooling water is insufficient to complete an application for a valid NPDES permit where the manufacture or formulation of an inherently dangerous instrumentality is concerned. Analysis of the claimed non-contact cooling water is necessary to completely and accurately characterize the discharge for purposes of development of effluent limitations sufficient to assure the protection of the natural resources of the state from pollution, impairment and destruction. A policy which precludes requiring the information necessary and sufficient to complete a valid permit application is invalid. The state has never established the percentage of claimed non-contact cooling water which has been found to contain toxic pollutants at levels of concern, so it is impossible for the state to assert that the burden of completing a NPDES permit application outweighs the benefit of certainty as to the actual composition of the discharge. The experience of the Point Source Studies Section has been that many claimed non-contact cooling water discharges do contain toxic pollutants at environmentally significant levels. Even if it can be demonstrated that the policy of not requiring those claiming to be discharging only non-contact cooling water without additives to analyze their discharge for Michigan Critical Materials and EPA Priority 6300 W. Michigan Avenue F-24 Lansing. Michigan 48917 517-321-7358 r4 6 Mr. Paul Zugger Page 2 Pollutants is not invalid it is unlawful to extend the policy to requiring that the permit not regulate the discharge of such substances from the permitted non-contact cooling water outfall. If the permit applicant claims that the discharge is unadulterated non?contact cooling water, then the permittee should be prohibited from discharging any chemical substance or mixture regulatable under applicable Federal or State statute from that outfall above levels of regulatory concern as calculated according to standard procedures. The requirement to monitor the discharge for compliance with these effluent limitations could be su5pended if the state could demonstrate that the burden of monitoring is disproportionate to the benefit of certainty as to the composition of the discharge per the requirements of MEPA and Executive Order 1974?4, but the prohibition of discharge above levels of concern should be in force and enforced. If the permittee is found to be discharging above those levels, the permittee can be found in violation of the permit. Under the present policy the state not only does not regulate the discharge of toxic pollutants from claimed non-contact cooling waste water sources, it does not routinely test the discharges to establish that the claim is valid. If the discharge is tested and found to contain toxic pollutants in levels of concern, the discharger is required to file an amended applica- tion. Strict liability under permit for the discharge of a toxic pollutant to the waters of the state in wastewater claimed to be non-contact cooling water will encourage self-enforcement in lieu of state action. This will not only better assure the protection of the waters of the state from pollution, impairment and destruction but will protect the permittee from state claims that he/she filed a false application which is punishable by civil penalties, including a substantial fine. Should you have any questions, please feel free to contact me. Yours truly, Larry E. Fink, M.S. Director Attachment 11 Initial Comments on 1/4/84 Preliminary Draft Water Quality Standard Derivation Guidelines For Rule 1057(2) Observations: Data are plural. The guidelines lump species and chemical categories together. This is contrary to the precepts of sound science. The procedures are not science-based but policy-based. The tolerances and uncertainties associated with the Water Quality Standards derived by the procedures are nowhere qualified and quantified. Without a quantification of compounded method and data error in each NQS, it is impossible to be assured that the NQS will protect wild and domesticated plant and animal populations and the public health, safety and welfare with a margin of safety considered ample, as required by the Clean Water Act. Some of the procedures have been changed significantly from those recommended by the Rule 57 Advisory Committee. The language of the guidelines is unclear. It is not possible to comment meaningfully on such a complex technical document in twenty days. Recommendation: Extend the comment period on the draft for another thirty days to allow meaningful cement on this most critical regulatory proposal. Run through the step-by-step derivation of a Water Quality Standard and a corresponding water quality-based effluent limit using the 1/4/84 guidelines and.the guidelines approved by the Rule 57 Advisory Committee for ten benchmark chemicals with wide ranges of acute toxicity, carci- nogenic potency, bioconcentration factor and quantity of adequate data, so that those with the appropriate technical background can observe how the process actually works in practice. Write a layman's guide to the rules and guidelines in the same style and format as those of the Site Assessment System information packet that accompanied the June 1983 public noticing of the SAS model. This will increase the likelihood of meaningful public input into the process. Include both the worked benchmark examples and the layman's guide in an information packet to accompany the public noticing of the draft rules and guidelines. (Mil M6 \.slr- acct/8..) 3-0 ?14: ?3?ka MQA 3?r0v1??2 0- Clix 9. Mk? tau. @k 02* lo Mu: Wat-k Wm? ma QM (31$ SS, he}; M?w 9 Ci 4., 4% gnu-w t-sK. mm Ma?l?gf; .. .LL-.. L. 1/103 mp". V. '51!y -.- 9.. Ml RISK ASSESSMENT AND RISK ACCEPTABILITY IN ENVIRONMENTAL PROTECTION ADDITIONAL COMMENTS BEFORE: 7 DNR Environmental 7 Protection Policy? Advisory Committee 19 January 1983 Madam Chair, Members of the Committee: I appreciate this Opportunity to make this presentation before the DNR Environmental Protection Policy Advisory Committee. My pre- vious submittals to you of 3 January 1983 and written remarks dated 19 january 1983 forwarded to you in a letter dated 12 January 1983 detail many areas of concern on which I will but briefly touch in this presentation. My name is Larry Fink. I hold B.S. Chemistry and M.S. degrees from the University of Michigan-Ann Arbor. The M.S. is in Environ- mental Health Sciences, with specialization in Environmental Chemistry. For the past four years I have been employed by the DNR's Office of Toxic Materials Control (now Toxic Chemical Evaluation Section), first in the capacity of reviewing Clean Water Act NPDES permit ap- plications for toxic substances hazards and, more recently, in the capacity of evaluating estimator techniques and chemical environmen- tal fate mathematical models for use in exposure assessment. Although I am an employee of the DNR, the views expressed here are my own, as a private citizen and Director of the Foresight Society, and should not be construed to be those of my employer. I wish to speak to you today about the use of risk assessment and the adoption of a design "acceptable risk" in the development of emissions limits for gene-damaging substances. Two precedent-setting permits containing acceptable cancer risk? based effluent limits were issued by DNR in 1982: 1. Dow Michigan Division NPDES Permit M10000868 issued by the Water Resources Commission April 21, 1982; 2. Dow Michigan Division Air Permit issued by_the Air Pollution Control Commission COMMENTS T0 EP January 198? ?p safe. ffset the compounded total error and uncertainty in the 1/100,000 risk dose. The use of the methodologies appears unjustifiable. I do not believe that the Rule 57 Advisory Committee gave suffi- cient consideration to the margins of safety which ought to be in- corporated into the genotoxic substance effluent limit derivation pro- cedures to assure the protection of the public health at the design acceptable risk to a degree of statistical confidence considered adequate. This may in part be attributable to the fact that the Office of T0xic Materials Control.staff with the most knowledge of the sources and magnitudes of error in data and uncertainty in the risk estimate processes were not allowed to put their ideas in writing or make presentations to the Committee. Unlike this committee, the Rule 57 Advisory Committee refused to allow at its meetings and made no provisions to review and discuss written public comment received on their agendas. I believe the failure to adequately compensate for error and uncertainty in the risk estimates derived according to the recommended procedures is a fatal flaw that must not go uncorrected. Comments regarding the inappropriateness of applying cost- benefit analysis to the development of water quality standards and the limitations in the cost-benefit methodolOgy will be forwarded to you shortly. I have attached recent comments to the Water Resources CommisSion on the recommended Rule 57 procedures for your consideration. Thank you for your time in considering my views. RISK ASSESSMENT AND RISK ACCEPTABILITY IN ENVIRONMENTAL PROTECTION COMMENTS BEFORE: DNR Environmental lrotection rolicy Advisory Committee 19 January 198: DATE Mr. Chairman, members of the committee: I appreciate this opportunity to make this presentation before the DNR Environmental Protection Policy_Advisory Committee. My written remarKs detail my concerns. My name is Larry Fink. I hold B.S. Chem. degrees from the University of Michigan?Ann Arbor. The M.S. is in Environmental Health Sciences, with Specialization in Environmental Chemistry. For the past four years I have been employed by the DNR's Office of Toxic Materials Control, first in the capacity of reviewing Clean Water Act NPDES permit applications for toxic substances hazards and, more recently, in the capacity of evaluating estimator techniques and chemical environmental fate mathematical models for use in exposure assessment. Although I am an employee of the DNR, the views and opinions expressed herein are my own, as a private citizen and Director of the Foresight Society, and should not be construed to be those of my employer. Page Two HISTORY AND BACKGROUND I have been involved in the development of proposed Rule 3 (Rule 57) of the Administrative Rules of the Water Resources Commis? sion (WRC) since September 1979, first as a DNR representative working with the WRC-appointed Water Quality Standards Advisory Task Force (WQSTAF) and later, following fundamental and irreconcilable differences of opinion which arose between me and my supervisors in DNR, as a pri- vate citizen. One of the recommendations made to the WRC by the WQSATF at its June 1980 meeting concerned the need to uniformly and consistently define carcinogenesis, hereditary mutagenesis and teratogenesis; establish a method of calculating genotoxic risk and adopt an accept- able "de minimus" genotoxic risk level. This recommendation was strongly supported by representatives of the private sector. who felt the language of proposed Rule 57 was so broad that it could not stand alone without rules establishing how the general narrative standard was to be translated into site?specific numerical standards. In res- ponse DNR staff indicated a willingness to develop guidelines for such purposes. Private sector representatives rejected this approach, arguing that the Administrative Procedures Act prohibited the adOption of a guideline in lieu of a rule. The proposed Rule 57 was first public noticed in August 1980. I commented on this draft as a private citizen, opposing the decision to authorize the presence of human genotoxic substances in the waters of the state. Private sector public comment opposed minimum data re- quirements and reiterated concerns regarding the vague language of the standard. In response DNR rewrote the draft rule, making it even less detailed. The public comment on this version, public noticed in April 1981, was even more vehement. Following private sector protests at Page Th the 1981 WRC meeting, DNR staff recommended to the WRC that it adopt a resolution creating a committee of scientific experts to advise the DNR on how to go about developing toxic substances water quality standards-based effluent limits. The resolution was adopted at the July 1981 meeting and recommendations to the WRC as to who should sit on the committee were made and adopted at the August 1981 meeting. At that meeting I appeared before the WRC as a private citizen and indicated my opposition to the composition and constitution of the committee. I pointed out that environmental interests were woefully underrepresented on the committee, that the areas of expertise repre? sented on the committee were not sufficient for purposes of carrying out its mandates, and that none of the appointees were experts in can? cer risk modeling. To assure that the advisory committee be able to fulfill the functions for which it was created, I recommended that the committee operate in the following fashion: 1. . . . announce, conduct and record the minutes of open meetings according to the protocols set forth in the Open Meetings Act (D.A. 267 of 1976, as amended); 2. . . . provide for a period of public comment at each meeting; 3. . . . solicit written and oral testimony from recognized national and international experts; 4. . . . clearly and explicitly identify the issues it intends to address and the value judgments it makes, indicating what weights were given to what factors in determining minimum data requirements, adeguate risk assessment methodologies, acceptable risk, reasonable assurance of protection from unacceptable risk, etc. A follow-up 14 September 1981 letter to Robert J. Courchaine, Executive Secretary, WRC, expanded on these topics. In fact no period of oral public comment was provided for; written Page Four comments received were not put on the agenda for discussio :1E3ide from Dow Chemical USA and EPA scientists, no written or oragrzomments from nationally or internationally recognized sc ientists were soli- cited prior to public noticing of the final draft: and many value judgments were buried in the text of the draft procedures adopted by the committee. My 24 September 1982 comments on the draft procedures are Attachment A 22 November 1982 letter to Robert J. Courchaine, summarizing the issues and questions raised by the development of proposed Rule 57 and the Rule 57 Advisory Committee effluent limit derivation pro- cedures, which have not been adequately addressed to date, has been supplied to you previously as an enclosure in my letter of 1/3/83. The Foresight Society has petitioned for a contested case hearing in the matter of Dow Michigan Division NPDES Permit Ml0000868, the first such permit to contain acceptable risk-based genotoxic substance effluent limits. Although our comments on the permit are quite exten? sive, a summary of our concerns is contained in a 20 November 1982 letter, a copy of which has already been provided to you. A 20 November 1982 letter to Bailus Walker, Jr., M.P.H., informed him of our discovery that the Midland County white female soft and connective tissue cancer rate for the period 1970?78 exceeds the Michigan and U.S. averages by ?235 times, representing a 771% increase over the rate for the period 1950-59. A copy of this letter has already been provided to you. The Foresight Society believes that, if acceptable cancer risk- based effluent limits are to be adopted, the background risks for the population(s) at risk should be evaluated prior to adoption to determine: Page as l} 2) that the existing cancer, birth defects and hereditary mutations risks do not already exceed the Michigan averages by a factor greater than l/lO0,000; and that the design acceptable increased incidence of 1/100,000 is not eventually exceeded as a result of the discharges authorized by the permit. "l Page Six QUE RISK ACCEPTABILITY AND THE QUALITATIVE DIFFERENCES OF RISK Often the acceptability of a given risk is determined by com- paring its magnitude to those of other common risks with which we live in a normal social context. Although such an approach is ap- pealing, great caution should be exercised in comparing the magni- tudes of qualitatively different risks. I do not believe that the Rule 57 Advisory Committee took sufficient note of these qualitative differences in adopting the l/lO0,000 risk as the design "acceptable" risk. I believe the following qualitative distinctions must be con? sidered when evaluating risk acceptability: acts of God vs human acts readily avoidable circumstances vs not readily avoidable circumstances accurately quantifiable vs/ inaccurately quantifiable quantified from observation of outcomes vs/ quantified by estimation of outcome corresponding social benefits vs corresponding individual benefits The following examples are introduced to illustrate the distinct categories into which various common risks would fall: Risk of Being Struck By A Meteorite . act of God not readily avoidable circumstances not accurately quantifiable for any particular place at any particular time . Page iv: ve Up till c) a given dose is delivered as a result of the integrated exposures throughout a representative worst-case social, occupational and recreational cycle; d) a given toxic response will be elicited by a given dose. For purposes of simplification it is assumed that: l) all the members of the potentially exposed population belong to the representative most sensitive sub population; 2) each of the design population will encounter the design exposure conditions; 3) the exposure will last a lifetime: 4) all of the substance to which one is exposed enters the body as a toxicologically active dose. A design statistical confidence level for each of the quantifiable uncertaintieS'and sources of error is adopted; A total error analysis on the risk estimate is performed at the design statistical confidence level: Unquantifiable uncertainties are identified and the existence of unknown sources of error postulated; The emission risk relationship is adjusted so as to compensate for the quantifiable uncertainties at the design statistical confidence level; The quantifiable uncertainty - adjusted emission - risk relationship is adjusted again to compensate for identifiable but unquantifiable uncertainties and sources of error and for as yet unidentifiable uncertainties and sources of error. now a design acceptable risk has not yet been adopted, yet important value judgments have already been made. Among the most significant are those regarding the design statistical confidence level to be adopted for purposes of quantifiable error analysis and Page Eleven 4. scaling down of the mega-rat dose in pr0portion to the slower metabolism of 1" the design representative most sensitive human (usually done with the ratio of body surface areas); 5. quantifiable and unquantifiable uncertain- ties and sources of error are identified; 6. quantification of quantifiable uncertain- ties via propagated and total error analysis. RISK ASSESSMENT Exposure Analysis 1. identification of the protected population most sensitive to the toxic effect of the chemical by one or more routes of exposure; 2. establishment of a representative worst?case exposure scenario for the most sensitive pro? tected population; estimation of a representative worst-case dose scenario for the most sensitive protected population under the conditions of the design exposure scenario; 4. mathematical modeling of the concentration of the toxic substance in air, surface and ground waters, soil and food as a function of its rate of emission to the air, waters and soil; 5. quantifiable and unquantifiable uncertainties and sources of error are identified; 6. quantification of quantifiable uncertainties via propagated and total error analysis. RISK EVALUATION l. A conditional probability distribution function is constructed from the probabilities that: a) a member of the population is a member of the representative most sensitive population; b) a member of the representative most sensitive population will encounter circumstances in which the representative worst-case exposure will occur for some period of time; William Cooper, Page 2 15 February 1984 frequency is that which would detec violation excursion with an acceptable failure rate. Here the value jud ent a table failure rate) and the science (statistics-based monito ng design) inherently convolved. terms mathematical model employed by DNR in deriving the low dose-human cancer risk relationship from high dose-laboratory animal cancer incidence data has not been scientifically verified and validated. Nor is there a likelihood that the necessary studies will ever be conducted. Further, Gilman Veith, EPA?Duluth, has argued strongly that the use of bioconcentration factors (BCFs) estimated by the method he developed in other than screening applications is wholly inapprOpriate, yet DNR is using BCFs estimated by methods similar to Veith's method in calculating acceptable cancer risk-based effluent limits when adequate measured values are unavailable. Even if DNR has made a conscious value judgment that the use of estimated BCFs is inescapable, the final concentration corresponding to a 10*5 cancer risk should be written with its 95%, 99% and 99.9% confidence levels calculated via propagation of BCF and carcinogenic potency factor data and estimation method error. Without the confidence limits about the 10-5 cancer risk con- centration, that number is meaningless in a scientific context. The choice of dose-response model and the use of estimated bioconcentration factors are decisions of science policy, not scientific determinations. Whether the 95%, 99% or 99.9% confidence level is chosen as an ample margin of safety is a value judgment. 0n various occasions I have been assured by DNR staff that the use of one-quarter of the once-in-ten-year, seven-day drought flow as the design flow and a mass- and surface area-adjusted carcinogenic potency factor divided by 100 to take into account potential interspecies differences in carcinogenic sensitivity assures that the 10-5 cancer risk-based effluent limits derived according to DNR procedures contain ample margins of safety per the explicit requirement of the Clean Water Act. The DNR rocedures ign9r9\the potential for toxicological 70 Kilograms consumes 6.5 grams of tainted fish per day for a 70 year lifetime. Yet women weigh less than 70 Kilograms on the average and children still less. Particularly sensitive life stages such as those relating to conception, pregnancy and nursing are not considered. Further, Michigan sport fishers consume on the order of 100 grams/day at the 90% fish consump- tion rate, according to FDA statistics. That is a sixteen fold greater consumption rate than the design rate chosen by DNR. A the use of threef? arter of an arti 'call wit ne an gergeggu margin safety be serio erod Dow ermi . If one goes to a 95%j?x??edance flow for the design low flow, as proposed in the new draft Rule 57, the margin of safety will be eroded still further. In addition, DNR staff dN; consider that the City of Midland POTN is a point source of toxic polluta s, a significant fraction of which derive fonesiq'hi sociEIy 15 February 1984 William Cooper, Chairman, Michigan Environmental Review Board c/o Boyd Kinzley Executive Secretary, MERB Department of Corrmerce Office of Business and Community Development P.0. Box 30225 Lansing, MI 48909 Dear Dr. Cooper: At the 23 January 1984 MERB discussion of the draft Dow Michigan Division NPDES Permit M10000868, you observed that some were of opinion that Dow's acceptance of the terms and conditions of the draft mit was prima facie evidence that the permit was inadequate and urged those who were reviewing the permit to evaluate it on its scientific merits /not according to a particular political formula. while we wholeheartedly support this concept where appropriate, we urge you to recognize that terms and conditions of the draft Dow permit were not based solely on the principles and practices of science but on science policy, regula ry policy and value 'judgments, as well. Based on our preliminary review, the permit is deficient in terms of its science, science policy, regulatory policy and value judgments. - With respect to the science embodied in the permit effluent limits and monitoring requirements, during DNR staff?s MERB presentation it was explained that the effluent limits for all but two of the carcinogens reported in Dow's permit application to have been detected in Dow's discharge were not water quality-based, since Dow?s/existing treatment system was able to remove them well below the corresponding water quality-based effluent limit levels. Rather, the effluent limits for these carcinogens were derived by multiplying the long term average concentrations by a factor of five, giving Dow some breathing room, but Still below the coresponding water quality-based effluent limit. The "breathing room" approach does not appear to be based on sound science. A scientific derivation of treatment-technology based "hold the line? effluent limits would have invOlved a statistical evaluation of the facility production schedules, the manufacturing cycles of source and dilution waste stream concentrations and flows and the variability in the end-of?pipe concentrations. Warning, non-compliance and violation effluent limits could then be defined in tenms of the 90%, 95% and 99% confidence levels about the central tendencies of the end-of-pipe concentrations, for example. The appropriate times, dates, locations, durations, frequencies and types of sampling required to establish compliance with these permit conditions would be derived in consideration of the facility schedules and cycles resulting in a representative worst-case discharge and the statistics of end-of-pipe pollutant concentration variability. The desired sampling 9 15 February 1984 iv Rigorous scientific logic would dictate that effluent limits for all Dew?Miehigaelaiveeion outfalls, direct and indirect, be developed at the same time. DNR policies dictate otherwise. ?yen?if?the outfall,?fhe Part 21 rules of the Water Resources Commission governing the issuance of NPDES permits require the preparation of a wasteload allocation when water quality-based effluent limits are developed for a permit. This requirement recognizes the riparian rights of down stream dischargers and precludesallocatingall or part of the assimilative capacity of the river to a discharger just because_its NPDES permit has expired first or it is the furthest upstream. take into account the sum contribution of toxic pollutants and environmental stressors like pH and temperature from all dischargers to the in setting effluent limits fer?Dew. s?monb Attachment I i a recent letter to ul Zugger, Executive Secretary,C%%) Water Resources Commis 'on, identifyin his generic deficiency in DNR water 4t? resources management pol and a pr osed procedure for wasteload allocation assuming conservation of At chment IIA and 113 are Mr. Zugger's cjvuiqg; responses, while Attachment my reply. Attachment IV is a wasteload allocation methodology employi linear programming techniques developed by data center. apprised the development of a wasteload a tio the ex stence of me odologies to perform the required he failure to perfonn a wasteload allocation further erodes the margin of safety ins?mgtg water quality-based toxic pollutant effluent limits. xii-L" He would disagree with DNR staff that the margins of safety in the acceptable cancer risk-based effluent limits are ample. In our judgment the rub: ans Bow-pe?nit fail; to provide an ample margin of safety in the derivation of yeah. water quality-based effluent limits and in the allocation of receiving water toxic pollutant assimilative capacity, allowing the discharge of toxic substances in toxic amounts, contrary to the policy set forth in the Clean Water Act and contrary to Section 6(a) of 1929 P.A. 245--The Water Resources Commission Act. Should you have any questions, please feel free to contact me. Yours truly, w?nk, M.S. Director} Enclosures cc: Governor Blanchard MERB Members (without attachments) NRC Members (without attachments) .xii<8.wa 99: c: