EPA's Responses

to Comments, Requests, Recommendations, Conditions, and Stipulations

Pertaining to the Re-Issuance of general NPDES permit AK-G52-0000

for Alaskan Seafood Processors.

EPA has prepared these Responses to

Comments of the Public,

Requests of the Alaskan Tribes,

Recommendations of the

National Marine Fisheries Service and U.S. Fish and Wildlife Service pursuant to the

Fisheries Conservation and Management Act and the Marine Mammal Protection Act,

Conditions and Recommendations of the

National Marine Fisheries Service and U.S. Fish and Wildlife Service pursuant to

the Endangered Species Act,

and

Stipulations of the State of Alaska pursuant to

the Clean Water Act and the Coastal Zone Management Act

on EPA Region 10's Reissuance of

General NPDES permit No. AK-G52-0000 for

Alaskan Seafood Processors.

NPDES Permits Unit (OW-130)

U.S. Environmental Protection Agency, Region 10

1200 Sixth Avenue

Seattle, Washington 98101

July 17, 2001
Response to Comments and Concerns Alaska's seafood general NPDES permit

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EPA’S RESPONSES TO

THE COMMENTS OF THE PUBLIC

ARE PROVIDED AS FOLLOWS:

1. Comment: Trident Seafoods and Pacific Seafood Processors Association comment that

EPA should distinguish between the unwashed and pressed fish mince used to produce

frozen blocks of fish mince and the washed and pressed mince used to produce surimi in

Part I of the permit. There are significant differences in the amounts and concentrations of

pollutants (esp. BOD, biochemical oxygen demand) in the associated wastewaters

generated in the production of these two products. The organic pollutants contained in the

wastewater of unwashed mince is comparable to that of fish filleting and canning

operations and should be covered under the Permit.

Response: EPA acknowledges that there is a difference in the unwashed fish mince

product which is pressed and frozen into blocks and the washed, pressed fish mince

product which may be used to produce surimi. There is a concomitant difference in the

pollutant levels of their respective wastewater: washed mince releases much greater

amounts of pollutants than unwashed mince due to the extensive and intimate contact of

the wash-water with fish flesh. EPA has revised the permit at Part X to include definitions

of mince, washed mince, and unwashed mince. EPA has revised the permit at Part I.B to

clarify that its prohibition of the discharge of mince effluents by near-shore and shore-based

processors refers to "washed mince" rather than to unwashed mince. The basis for the

prohibition of the discharge of effluents from washed mince is that the high levels of

biochemical oxygen demand (BOD) that characterizes this wastewater can depress

dissolved oxygen in the water column; this impact makes such dischargers strong

candidates for individual permits.

2. Comment: The At-Sea Processors Association comments that Fishery Management Plans

require that “prohibited species” (e.g., salmon, crab, herring and halibut) be returned to the

sea and comments that EPA should address this fishery management condition in the

permit.

Response: EPA recognizes that the protection of "prohibited (catch) species" is an

important aspect of fishery management plans. EPA has revised the permit at Part II.A.1.a

so as to explicitly exempt returns of "prohibited (catch) species" from the grind-anddischarge requirement of processing wastes. Furthermore, EPA has revised the permit at

Part X to define "prohibited species".

3. Comment: The At-Sea Processors Association comments that the National Marine

Fisheries Service (NMFS) has closed portions, but not all, of Steller sea lion critical habitat

to some or all fishing activities. These closures expand the protected Steller sea lion

habitat beyond the rookeries and haul-outs excluded from authorization within the current

draft NPDES permit and 1995 general NPDES permit. EPA should address these closures

in the permit.

Response: EPA recognizes that the areas covered by each of the narrative descriptions of

areas excluded from authorization under this general NPDES permit may change during

the course of a permit's five-year term. EPA has provided narrative descriptions within

Part III of the permit which protect water quality, environment, habitat and natural resources
Response to Comments and Concerns Alaska's seafood general NPDES permit

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in a dynamic manner which encompasses the changes which can occur and have occurred

in the areas excluded from coverage to discharge under the permit. The extension of

protection for Steller sea lions to fishing grounds is not included in the reference to

rookeries and haul-outs and should be included for the protection of Steller sea lions. EPA

has revised the permit at Part III.A.6 to include critical habitat of Steller sea lions during

NMFS’ closures of fishing activities within these areas.

4. Comment: Trident Seafoods comments that EPA should extend the submittal date for the

annual report from January 31 to February 28 in order to provide more time for members of

industry to analyze December monitoring and to compile the previous year's data.

Response: EPA is persuaded that a February 14th submittal date for the annual report will

be practical for both Alaska's widespread seafood processing industry and government

data management. EPA has revised the permit at Parts VI.B.4, VI.C.4, VI.C.7, and VI.D.5

to provide for submission of the annual report and the monitoring reports of the shoreline,

sea surface and seafloor on or before February 14th of the year following the year of

monitoring.

5. Comment: Tom Beardsley comments that there is no negative environmental impact from

surface discharges by offshore floating processors: wastes disappear almost immediately

because vessels are moving during processing. However, during rough weather

wastewaters can be forced back up the discharge pipe in the case of subsurface

discharges. Additionally, sea water is drawn up through the sea chest at the bottom of the

vessel and thereby is likely to entrain processing wastes discharged at the proposed

depths of three feet or greater. Waste discharges at the surface allow for greater

separation and prevent wastes from being drawn up through the sea chest. Mr. Beardsley

comments that EPA should change this draft permit condition to allow discharges at the

sea surface by offshore vessels.

Response: EPA is persuaded that the proposed condition provides nominal benefits in the

case of offshore discharges by vessels underway and poses risk to the contamination of

the ship. EPA has revised the permit at Part V.A.1.f to provide for discharge to or below

the sea surface through an outfall line(s) or a through-the-hull discharge portal(s).

6. Comment: The Pacific Seafood Processors Association comments that there is no

evidence that seafood processing wastes cause or have reasonable potential to cause a

violation of Alaska water quality standard for seafloor residues outside a one acre zone of

deposit. The Association concludes that there is no need for a limit on the amount of

discharged seafood processing wastes in the permit.

Response: There is evidence which indicates that the amount of seafood processing

waste residue discharged by a facility can cause or have reasonable potential to cause or

contribute to a violation of the Alaska water quality standard for seafloor residues outside of

the one acre zone of deposit and in contravention of the zone of deposit requirements.

Reports of seafloor dive surveys around processor outfalls indicate that exceedances of the

one acre zone of deposit occur at a number (at least three) of shore-based seafood

processors permitted under NPDES permit no. AK-G52-0000. Annual report data of the

pounds of seafood processing waste discharged from those facilities indicate that levels of
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waste discharged ranged from 10 million to 13 million pounds of seafood processing waste

residues per calendar year.

Furthermore, information from seafood processors indicate that the volume of waste

discharged is correlated to the reported events of waste pile eruptions caused by hydrogen

sulfide and methane gas build-up in a waste pile that is released in low tide situations which

produces the resuspension and flotation of scrum and fish waste and attendance nuisance

odors.

Alaska’s water quality standard criteria for settleable residues (18 AAC 70.020) as applied

to the beneficial use of water for the growth and propagation of fish, shellfish, other aquatic

life, and wildlife is that “residues (including sludge and deposits) may not make the water

unfit or unsafe for the use; . . . or cause a sludge, solid, or emulsion to be deposited . . . on

the bottom, or upon adjoining shorelines.” Alaska Department of Environmental

Conservation (ADEC) authorized a one acre zone of deposit for each facility that is

authorized to discharge under the general permit. ADEC stipulates that seafood processing

discharges shall not violate the Alaska water quality standards criterion for residues beyond

the zone of deposit and that in no case may water quality standards be violated in the water

column outside of the zone of deposit by any action, including leaching from, or suspension

of, deposited materials.

Waste piles of offal in excess of one acre on the bottom are a violation of the stateauthorized zone of deposit and the Alaska water quality standards. Deposited seafood

waste that leaches from or is resuspended from the waste pile is also a violation of the

authorized zone of deposit and water quality standards. Sufficient evidence exists to

support that larger volumes of waste discharged can cause, or have the reasonable

potential to cause or contribute to excursions above the state water quality standards.

7. Comment: The Pacific Seafood Processors Association opposes the 10,000,000 lbs/yr

limit on seafood processing waste residues and requests the elimination of this permit limit.

The Association contents that the proposed 10,000,000 lbs/yr limit on the discharge of

process wastes is arbitrary, capricious and contrary to law. First, the limitation is not

authorized by EPA regulations [40 CFR 122.44(d)(l)] which authorize EPA to include water

quality-based effluent limitations when those limitations are “necessary” to achieve water

quality standards. Absent evidence that seafood precessing discharges are causing or

have the reasonable potential to cause violations of the Alaska water quality standards

outside the one acre zone of deposit, the 10 million lbs/yr limit is not authorized by EPA

regulations. Second, even if EPA had legal authority to impose a limit on seafood

processing offal, the 10 million lbs/yr limit is arbitrary and capricious. Dive survey results

provided to EPA by the processors demonstrate that discharge volume alone does not

determine waste pile size; current speed and tidal action are more important. Therefore, the

Association requests a waiver provision to discharge in excess of this or any other limit on

seafood processing waste residues as conditions allow.

Response: The limit of 10,000,000 lbs per calendar year on seafood processing waste

residues is not arbitrary, capricious or contrary to law. The permit limit for seafood

processing waste residues is in compliance with law. The Clean Water Act provides that if

necessary to meet applicable water quality standards, NPDES permits must contain water

quality-based effluent limitations more stringent than limitations that would be required to
Response to Comments and Concerns Alaska's seafood general NPDES permit

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comply with the applicable technology-based standards [See 33 USC § 1311(b)(1)(C)].

EPA’s regulations provide that a permit must contain effluent limits for any pollutant that

EPA determines may be discharged at a level which will cause, have the reasonable

potential to cause, or contribute to an excursion above any state water quality standard,

including state narrative criteria for water quality [40 CFR 122.44(d)(1)].

As discussed in our response above, evidence supports that the volume of seafood

processing waste discharged is a direct cause or no less than a contributing factor to

exceedances of the one acre zone of deposit authorized under the state’s water quality

standards and is likely the contributor of other deleterious effects and excursions of the

state’s residue standard.

The permit limit of 10,000,000 pounds per calendar year of seafood processing waste (raw

product minus finished product) in the general permit is not arbitrary or capricious. In

establishing an effluent limit of 10 million lbs/yr EPA relied upon deposition modeling

conducted by Tetra Tech (1996) which determined that a discharge of 12 million lbs/yr of

settleable solid seafood processing residues per year would produce a 1.2 acre waste pile.

Tetra Tech used EPA’s WASP model in conjunction with the contouring software SURFER

in its modeling analyses. In developing permit limits for seafood processing waste

residues, EPA employed a straightforward algebraic equation:

X lbs per yr / 1.0 acre = 12,000,000 lbs per yr / 1.2 acre

X = (12,000,000 lbs per yr / 1.2 acre) x 1.0 acre

X = 10,000,000 lbs per calendar year

The effluent limit of 10,000,000 lbs per calendar year on seafood processing waste

residues is protective of the Alaska water quality standard for residues and is necessary to

achieve the standard. The results of the model are borne out by the majority of facilities

that discharge under the existing general permit, discharge less than 10 million lbs per

calendar year, and have waste piles less than one acre and no other reported water quality

problems.

EPA’s information indicates that processors with discharge volumes around or in excess of

10 million lbs/yr have waste piles larger than one acre and/or have other water quality

problems. EPA and ADEC reserve the right to decline a facility coverage under this

general NPDES permit if the record of its discharges and its seafloor dive surveys indicate

that the facility requires an individual NPDES permit in order to control its pollution and to

protect Alaska water quality standards.

EPA acknowledges that the settling of solid seafood processing waste residues is too

complicated to predict the actual size and shape of waste piles in every circumstance found

throughout Alaska. Seafood processors discharging into high current areas may achieve

wide-spread dispersal of residues without exceeding the state-authorized one acre zone of

deposit. EPA agrees that permittees should have the opportunity to apply for a waiver of

the effluent limit on seafood processing waste residues by submitting site-specific survey

data collected over a number of years which demonstrate that a specific facility may

exceed the effluent limit of 10,000,000 lbs per calendar year without exceeding the one

acre zone of deposit, thereby remaining in compliance with the Alaska water quality

standard for residues and the state-authorized one acre zone of deposit. EPA has revised
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the permit at Parts V.B.1(a) and V.C.1(a) to provide waiver options based on site-specific

field data assessing seafood waste deposition on the seafloor adjacent discharges.

EPA realizes that facilities covered by the general permit and having deposits of seafood

processing waste residues that are greater than three quarters acre require its close

scrutiny and concerned interest. EPA will evaluate the situation and activities of permittees

with waste deposition that exceeds three quarters acre to determine whether the Alaska

water quality standard for residues can be protected at such a facility through a change in

management practices or whether the issuance of an NPDES individual permit with sitespecific limitations and other conditions is appropriate.

8. Comment: Trident Seafoods requests that the effluent limit of 10,000,000 lbs/yr proposed

for seafood processing wastes be increased to 12 million lbs/yr. The Water Quality

Analysis Simulation Program (WASP) model predicts that a discharge of 12 million lbs/yr of

settleable solid seafood processing residues will result in a one acre deposit on the

seafloor. Trident Seafoods also requests that the permit include intermediate control

measures to allow discharge at higher levels.

Response: EPA has selected the WASP modeling results as contoured by SURFER

software as a conservative simulation of the relationship between discharge mass and the

resulting waste pile rather than relying upon the results of the cellular WASP model alone.

The WASP model is composed of quadrilateral cells that are rough approximations of the

curved shapes characteristic of all seafood processing waste piles. Hence, the effluent

limit for settleable residues is 10 million lbs/yr as determined by the simulation of WASP

and SURFER rather than 12 million lbs/yr of WASP alone (and proposed by Trident

Seafoods).

In other applications EPA has used WASP models to develop limits and wasteload

allocations and has imposed a margin of safety of 5% to 25% in order to address the

precision of WASP simulations. In the present application EPA has selected the more

conservative simulation of residue deposition as one element of its margin of safety.; this

constitutes a hypothetical margin of safety that could be as great as (2000/12000 =) 17%.

Additionally EPA has elected to limit the parameter “total seafood processing residues”

rather than the parameter “total settleable solid seafood processing residues” as modeled

by Tetra Tech. Total seafood processing residues include and are therefore equal to or

greater than total settleable solid seafood processing residues. EPA estimates that the

difference between the two parameters is approximately 3% and consists of floatable solids

and fine, suspended solids with extensive settling times. The total margin of safety

incorporated into the limit of 10 million lbs/yr ranges from three to twenty percent.

9. Comment: Trident Seafoods and Earle Hubbard comment that seafood processors which

discharge more than a permit limit on seafood processing residues should not be excluded

automatically from coverage under the general permit. Rather, EPA should provide an

option for seafloor surveys to demonstrate that the limit on settleable solids can be

exceeded without exceeding the one acre zone of deposit authorized by the state of

Alaska.

Response: The permit does not prohibit coverage of seafood processors discharging more

than 10 million lbs/yr of seafood processing waste residues. Rather, the permit limits
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discharges to 10 million lbs/yr. As stated above, EPA agrees that permittees should have

the opportunity to appeal for a waiver of the effluent limit on seafood processing waste

residues by submitting site-specific survey data collected over a number of years which

demonstrate that a specific facility may exceed the effluent limit of 10,000,000 lbs per

calendar year without exceeding the one acre zone of deposit, thereby remaining in

compliance with the Alaska water quality standard for residues and the state-authorized

one acre zone of deposit. EPA has revised the permit at Parts V.B.1(a) and V.C.1(a) to

provide waiver options based on site-specific field data assessing seafood waste deposition

on the seafloor adjacent discharges.

10. Comment: The Pacific Seafood Processors Association requests the exemption of any

residues dumped from ships underway at sea from the calculation of the total annual

discharges of offal from seafood processing facilities.

Response: EPA finds that the offshore dumping of seafood processing wastes from a

moving ship or barge into water that is greater than one nautical mile from shore and

deeper than minus 120 ft mean lower low water (MLLW) is preferable to an inshore

discharge which creates a large waste pile around an outfall pipe. EPA has revised the

permit at Parts V.B.1(a) and V.C.1(a) to exclude the amount of seafood processing

residues disposed in at-sea discharges from this permit limit of 10,000,000 lbs per calendar

year and to support the use of at-sea discharges of seafood processing waste from moving

vessels as a preferable alternative to inshore discharges of seafood processing waste

through outfalls.

11. Comment: Trident Seafoods comments that EPA should remove the condition of no

discharge if an outfall line is severed, fails, leaks or is displaced because a processor could

lose production waiting for repairs. Rather than prohibit discharges from broken outfall

lines, Trident suggests that EPA should make a decision as to whether or not seafood

processing should stop at the time that such a break is recognized.

Response: EPA recognizes that Alaskan seafood processors may not be able to

discontinue wastewater discharges immediately upon the failure of an outfall line due to a

number of reasons. EPA has revised the permit at Part V.C.1(f) to require that discharge

from a severed, failed or leaking outfall line shall not continue beyond ten days after

damage resulting in a leak unless such damage is repaired. Naturally, EPA expects

permittees to have repair materials on-site and to make every effort possible to repair a

damaged outfall line as soon as possible. Failure of an outfall line is to be reported to EPA

and ADEC in accordance with Part VIl.C.

12. Comment: Trident Seafoods requests that EPA reduce the frequency of inspecting the

efficacy of seafood waste grinders from daily to weekly. Due to the structure of waste

handling system on vessels, daily inspections are difficult.

Response: EPA holds that it is a minimal and reasonable requirement to require

permittees to conduct a daily visual inspection of processing waste grinders in order to

insure that this wastewater treatment equipment is operational and reducing seafood offal

to a maximum width. Visual inspections of wastewater treatment equipment are more

easily implemented than the alternative of daily sampling and sizing of wastes. EPA has

not revised the permit in response to this comment.
Response to Comments and Concerns Alaska's seafood general NPDES permit

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13. Comment: The Tongass Conservation Society and citizens of Ketchikan comment that

seafood processing discharges are responsible for odors and floating offal wastes and fish

scum. The commenters request that EPA require a zero discharge of seafood processing

wastes and that these wastes be processed into a useful and economic by-product such as

petfood, fish meal, fertilizer or compost. At a minimum, seafood processors in Ketchikan

should be held to the technology-based standards for screening and reducing (rather than

grinding and discharging) seafood processing waste residues that are applicable to fish

processing centers and population centers in Alaska and throughout all of the lower 48

states.

Response: EPA is aware of the problems of floating residues and odor associated with

seafood processing discharges that have troubled Ketchikan, Cordova and other cities and

communities in Alaska, particularly during the late summer’s salmon fisheries and extreme

low tides. Yet Federal and state laws and regulations do not support the imposition of a

zero-discharge limit in these circumstances. (See 40 CFR Part 408).

Nonetheless, EPA has imposed appropriate water quality-based limits and other

requirements in the general permit that will maintain acceptable water quality. The present

reissuance of general NPDES permit no. AK-G52-0000 includes new conditions (1) to limit

the mass of seafood processing waste residues discharged at any single location which is

likely to build up significant deposits on the bottom and (2) to require permittees to

discharge at depths of minus 60 ft MLLW or greater unless the character of the receiving

water makes such depths unreasonable to achieve or unnecessary for the protection of

Alaska water quality standards.

EPA recognizes both the value of full-utilization of seafood and the costs of producing and

marketing seafood by-products from remote and distant locations. EPA is persuaded that

providing permit coverage which promotes the screening of seafood processing wastes for

use in the production of secondary by-products such as meal and fertilizer and the

associated reduction in seafood processing waste residues will benefit water quality in

Ketchikan, Cordova and other Alaskan coastal communities with well-circulated receiving

waters. At the same time, EPA understands that this extension of coverage should, at this

time, be offered as an opportunity rather than as a requirement. EPA has revised the

permit at Part I.A to extend coverage to seafood meal reduction and secondary production

facilities. EPA and ADEC will consider the quantity and quality of proposed pollutant

discharges, the hydrodynamic nature of the receiving water, and the excluded areas

provided in Part III of the permit before authorizing coverage to an applicant.

14. Comment: The Southeast Alaska Conservation Council comments that, at a minimum,

EPA must officially reinstate the germane effluent guidelines to apply best practicable

control technology currently available for seafood processing facilities in Alaska's

population and seafood processing centers. According to 40 CFR 408, both Ketchikan and

Cordova are included in non-remote Alaskan locations which are held to technology-based

limits.

Response: EPA agrees that it is better to refine seafood processing wastes into

secondary by-products such as petfood, fish meal, fish protein concentrates, fish oil,

fertilizer and compost than to discharge this material as wastewater pollution. The benefits
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of such by-product use can be greater in a populated processing center like Ketchikan and

the receiving waters of the Tongass Narrows. The technology exists to support the

production of secondary seafood products at medium-sized processors. Unfortunately,

Alaska's seafood industry has found that the costs of such by-products exceed market

prices and therefore has not invested in the production and marketing of seafood byproducts.

In 1975 EPA promulgated technology-based standards for non-remote and remote seafood

processing centers (40 CFR Part 408; e.g., 40 Federal Register 55780). Anchorage,

Cordova, Juneau, Ketchikan, Kodiak, and Petersburg were designated as non-remote

population or processing centers held to more stringent limits than the one-half inch grind

and discharge of remote Alaskan locations.

The Alaskan seafood industry challenged these non-remote designations. The legal battle

was suspended when certain non-remote designations were suspended with Kodiak being

designated as a seafood processing center (and a non-remote location) while the

designation of the other cites was left as indeterminate. EPA Region 10 at this time does

not have sufficient information about the feasibility of alternative disposal or use options but

will gather more information in an attempt to update the record of the designations of these

five remaining cities as well as several others in Alaska during this permit cycle and

coordinate with EPA headquarters and its legal counsel in reconciling the 1975

determinations with current information.

As above, EPA is persuaded that providing permit coverage which promotes the screening

of seafood processing wastes for use in the production of secondary by-products such as

meal and fertilizer and the associated reduction in seafood processing waste residues will

benefit water quality in Ketchikan, Cordova and other Alaskan coastal communities with

well-circulated receiving waters. Until the completion of appropriate studies of current

technologies and markets, EPA believes that this extension of coverage should be offered

as an opportunity rather than as a requirement. EPA has revised the permit at Part I.A to

extend coverage to seafood meal reduction and secondary production facilities. EPA and

ADEC will consider the quantity and quality of proposed pollutant discharges, the

hydrodynamic nature of the receiving water, and the excluded areas provided in Part III of

the permit before authorizing coverage to an applicant.

15. Comment: The Southeast Alaska Conservation Council comments that EPA is reissuing

and ADEC is certifying a general NPDES permit that allows for the discharge and

deposition of large quantities of seafood processing wastes which may adversely impact

the designated uses in Alaska’s marine waters and the surrounding environment. The

historical experience of southeast Alaska's citizens and communities demonstrates that the

permit limits and the regulatory agencies' enforcement of these limits do not protect water

and air quality . . . the foam, scum, grease and seafood offal floating on our waters and

washed up on our shores, the piles of putrid flesh on the sea floor, and the annual

degassing of fetid fumes from piles of rotting waste extending up to three to nine feet in

height above the seafloor. EPA should change the permit with limits and conditions which

protect the environment.

Response: EPA has prepared a permit with effluent limits, monitoring requirements and

other conditions (e.g., best management practices) which are protective of Alaska water
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quality standards and implement both technology-based limits and water quality-based

limits. In particular, a permit limit on the amount of waste that may be discharged from a

single facility has been added specifically to ensure compliance with the authorized zone of

deposit.

In its § 401 certification of general NPDES permit AK-G52-0000, ADEC has provided for a

zone of deposit of one acre and a mixing zone of 100 ft radius extending from the sea

surface to the sea floor around the terminus of a permitted seafood processor's outfall.

Qualitative observations have suggested that waste piles which are thicker than four feet

and which are formed in waters shallower than sixty feet at mean lower low water may

release decomposition gases of offensive quantity and quality during certain conditions

(e.g., high tidal ranges). Hydrogen sulfide and methane generated by anaerobic decay and

released by significant changes in hydrostatic pressure break up the waste pile and eject

decomposing solids into the water column and up to the sea surface. Insufficient data

exists to support a specific limitation on the thickness of such waste piles.

Both EPA and ADEC have limited quantities of personnel and financial resources for

conducting compliance inspections and therefore fifteen to twenty seafood processing

facilities are inspected annually (along with many other facilities in other industries).

Behind such agency inspections, the Clean Water Act (CWA) presumes that permittees

have knowledge of their operations and wastewater treatment and discharges and are

responsible for honestly and accurately monitoring and reporting on their wastewater

discharges.

Importantly, the CWA extends to any citizen or group of citizens the right to commence a

civil action against any person (including the United states or any other governmental

agency) who is alleged to be in violation of a permit limitation, a water quality standard or

an order issued by EPA or a state with respect to such a standard or limitation. The right of

citizen suit empowers citizens to secure enforcement of compliance violations on

permittees. Any legal action against a permittee should be substantiated by appropriate

evidence of such a violation(s), such as photographs and signed eye-witness statements

[See CWA § 505 et al.].

EPA has not revised the permit to address this comment.

16. Comment: The Southeast Alaska Conservation Council recommends that processing be

prohibited within: (1) 303(d) and 305(b) listed waters; (2) state parks, preserves,

sanctuaries or recreation areas; (3) national monuments, historic or natural landmarks;

(4) LUDIII; (5) wild & scenic rivers under the Tongass Land Management Plan; and

(6) areas meriting special attention under the Alaska Coastal Zone Management Plan

(ACMP). Waivers to discharge in these excluded areas are not in the public interest. Preexisting facilities located in any of these areas should be permitted by an individual NPDES

permit open to public review and comment.

Response: The permit already excludes many of the areas listed in the comment from

authorization, such as the 303(d) listed waterbodies, state game sanctuaries, refuges and

critical habitats, federal parks, monuments and wildlife refuges, wild and scenic rivers,

areas meriting special attention, and areas with concentrations of threatened and

endangered species. Application for a waiver with proper information and justification is
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allowed under the permit, providing an opportunity to consider additional site-specific

information developed and provided by and at the expense of applicants for coverage

under the permit. Waivers will only be allowed if the interagency review of supplemental

data concludes that discharges can occur without detriment to receiving waters and

protected resources. In cases where no waiver is granted and a facility is not permitted

under this general permit, a facility would apply for an individual NPDES permit.

EPA has not revised the permit to address this comment.

17. Comment: The Southeast Alaska Conservation Council comments that reducing overall

seafood processing waste through best practicable control technology, strict effluent

limitations, or by encouraging the conversion of fish processing waste into fertilizer or other

beneficial uses would be superior alternatives to the variance of a one acre zone of deposit.

Response: EPA agrees that the reduction of seafood offal to marketable secondary byproducts is preferable to pollutant discharges. However, the production and marketing of

by-products such as petfood, fish meal, fish protein concentrates, fish oil, fertilizer and

compost is reported by Alaska's seafood industry to be uneconomical. ADEC has used its

discretion under 18 AAC 70.210 to authorize a one acre zone of deposit for seafood

processing wastes after consideration of the effects of and alternatives to discharge. It is

the state’s prerogative to authorize a zone of deposit (and a mixing zone) that allows for an

exceedance of Alaska water quality standards around a point of discharge and the state

has exercised this prerogative. (See also the responses to comments 13 and 14 above.)

EPA has not revised the permit to address this comment.

18. Comment: The Southeast Alaska Conservation Council recommends that EPA include as

a permit condition a provision giving the state and public adequate notice and opportunity

to review specific facilities under Alaska's antidegradation policy and the ACMP.

Response: EPA is reissuing its state-wide general NPDES permit for approximately 240

Alaskan seafood processors for the third time. In accordance with 40 CFR § 122.28 EPA

has elected to issue a general NPDES permit in the case of seafood processors located

across Alaska because it finds that the area, pollutant sources and effluent limits are

sufficiently compatible that it is appropriate for a general permit. EPA has detailed which

facilities are covered by the permit, the limits, monitoring requirements and other conditions

applicable to discharges permitted under the permit. The regulations provide for public

comment on the draft permit, appeal of the final permit, or petitioning the agency that a

particular permittee’s authorization should be terminated. EPA took public comment on the

draft permit from April 28, 2000, to June 12, 2000, and provided for a public hearing in

Alaska. The State has actively worked with EPA in developing this permit, and has

reviewed its terms and conditions and made its determination that the permit was likely to

achieve state water quality standards as documented in its water quality certification on the

permit. EPA has included in the general permit all of the State’s stipulations and conditions

contained in the certification. Likewise, ADEC has conducted the required public review of

its water quality certification and its ACMP process and consistency determination. It is

presumed that the State has met all necessary requirements under its water quality

standards to issue its certification. EPA has met all of its requirements to comply with the
Response to Comments and Concerns Alaska's seafood general NPDES permit

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Clean Water Act in issuing this general permit. Therefore, it is neither necessary nor

administratively efficient to provide for public review of specific seafood processors.

In the case of facilities which apply to discharge into excluded areas, EPA will notify the

appropriate coastal zone management district(s) that a waiver is being considered. At that

time the district office(s) will be able to express concern about areas meriting special

attention and other significant issues. New facilities will be required to submit the Coastal

Project Questionnaire to see if the new facility needs review for consistency under ACMP.

Furthermore, the state must approve the granting of a waiver of the 10 million pound

settleable residue limit or authorizing facilities under this permit that are located in at-risk or

degraded water resources and water bodies.

EPA has not revised the permit to address this comment.
Response to Comments and Concerns Alaska's seafood general NPDES permit

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EPA’S RESPONSES TO

THE REQUESTS OF THE NATIVE TRIBES AND VILLAGES OF ALASKA

ARE PROVIDED AS FOLLOWS:

19. Request: The Native Village of Eyak requests that the permit language should include

“federally-approved tribal coastal zone management plans.”

Response: EPA agrees that the permitting of facilities should encompass “federallyapproved tribal coastal zone management plans.” With this inclusion, tribes will have the

opportunity to participate in decisions on the waiver applications of facilities within their

coastal zones. EPA has revised the permit at Parts IV.D, V.B.1.a and V.C.1.a to include

“federally-approved tribal coastal zone management plans” and to provide for explicit

consultation with relevant tribes within specific areas affected by applicant facilities.

20. Request: The Native Village of Eyak states that the suspension of technology-based

effluent limitations for cities of Anchorage, Cordova, Juneau, Ketchikan and Petersburg has

extended for 20 years and suggests that technological advances across two decades now

provide reasonable alternatives to the discharge of seafood processing wastes.

Response: EPA agrees that it is better to refine seafood processing wastes into

secondary by-products such as petfood, fish meal, fish protein concentrates, fish oil,

fertilizer and compost than to discharge this material as wastewater pollution. The

technology exists to support the production of secondary seafood products at mediumsized processors. Unfortunately, Alaska's seafood industry has found that the costs of such

by-products exceed market prices and therefore has not invested in the production and

marketing of seafood by-products.

In 1975 EPA promulgated technology-based standards for non-remote and remote seafood

processing centers (40 CFR Part 408; e.g., 40 Federal Register 55780). Anchorage,

Cordova, Juneau, Ketchikan, Kodiak, and Petersburg were designated as non-remote

population or processing centers held to more stringent limits than the one-half inch grind

and discharge of remote Alaskan locations.

The Alaskan seafood industry challenged these non-remote designations. The legal battle

was suspended when certain non-remote designations were suspended with Kodiak being

designated as a seafood processing center (and a non-remote location) while the

designation of the other cites was left as indeterminate. EPA Region 10 at this time does

not have sufficient information about the feasibility of alternative disposal or use options but

will gather more information in an attempt to update the record of the designations of these

five remaining cities as well as several others in Alaska during this permit cycle and

coordinate with EPA headquarters and its legal counsel in reconciling the 1975

determinations with current information.

As above, EPA is persuaded that providing permit coverage which promotes the screening

of seafood processing wastes for use in the production of secondary by-products such as

meal and fertilizer and the associated reduction in seafood processing waste residues will

benefit water quality in Ketchikan, Cordova and other Alaskan coastal communities with

well-circulated receiving waters. Until the completion of appropriate studies of current
Response to Comments and Concerns Alaska's seafood general NPDES permit

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technologies and markets, EPA believes that this extension of coverage should be offered

as an opportunity rather than as a requirement. EPA has revised the permit at Part I.A to

extend coverage to seafood meal reduction and secondary production facilities. EPA and

ADEC will consider the quantity and quality of proposed pollutant discharges, the

hydrodynamic nature of the receiving water, and the excluded areas provided in Part III of

the permit before authorizing coverage to an applicant.

21. Request: The Native Village of Eyak requests an examination by an independent

examiner of all best management practices (BMPs) and BMP plans that are completed and

submitted to EPA and ADEC by Alaskan seafood processors. The Native Village of Eyak

requests that a report of this review be provided annually to Alaskan tribes for their review.

Response: The general permit requires that permittees develop and implement best

management practices plans and make such plans available for inspection upon request by

a duly authorized representative of the two regulatory agencies (i.e., EPA and ADEC).

EPA sponsored and collaborated in the development and publication of a guidance

document for seafood processors entitled “Seafood Processing Handbook for Materials

Accounting Audits and Best Management Practices Plans” (Nicklason and Hill, 1995). The

permit requires that permittees submit written certification of the completion and

implementation of a BMP Plan to EPA and ADEC rather than submitting the plan itself.

EPA does not find this request to be necessary or reasonable and does not intend to

contract an independent examiner to review BMP plans at seafood processors across

Alaska. If a tribe, municipality or coastal zone management district is interested in the best

management practices of a particular seafood processing facility in its jurisdiction, a

government representative may request a copy of the best management practices plan

from the permittee. EPA has not revised the permit to address this request.

22. Request: The Native Village of Eyak asserts that discharges into Orca Inlet with depths of

less than 60 ft are not authorized under Part III.B. Orca Inlet is about 30 ft deep at the point

of discharges. The processors in Cordova do not have written waivers to authorize their

discharges.

Eyak opposes any waivers to the dischargers in Orca Inlet for coverage under this reissued

general NPDES permit, as the permit limits and other conditions do not protect water

quality, air quality and marine mammal safety.

Eyak is concerned about the attractive nuisance presented by seafood processing wastes.

In particular, Eyak staff have studied sea otters for a number of years in Orca Inlet in

conjunction with the U.S. Fish and Wildlife Service and have documented otter mortality

occurring in animals feeding on cod, pollock and other fish wastes discharged during the

winter months. The protection of these and other marine mammals are required by the

Marine Mammal Protection Act.

Response: The 1995 version of general NPDES permit AK-G52-0000 excluded “areas with

water depth of less than ten (10) fathoms mean lower low water (MLLW) that have or are

likely to have poor flushing, including but not limited to sheltered waterbodies such as bays,

harbors, inlets, coves, and lagoons and semi-enclosed water basins bordered by sills of

less than ten (10) fathom depth.” [See Part III.B.a of the 1995 permit.] EPA did not issue
Response to Comments and Concerns Alaska's seafood general NPDES permit

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waivers to the Cordova facilities under the 1995 general permit because Orca Inlet has

good flushing currents — current speeds generally exceed a knot — and therefore is not

covered by the exclusion of at-risk waters in Part III.B of either the expired permit or the

newly reissued permit.

EPA acknowledges that there are significant problems in Orca Inlet because of the seafood

processing wastes. The cleansing effect of Orca Inlet’s strong currents may be

compromised by the high level of settleable solid waste residue discharges of at least one

of its seafood processing facilities. EPA has received concerns expressed in the past by

the Native Village of Eyak and citizens of Cordova concerning the annual releases of

sulfurous gas from the waste piles, the clogging of a Coast Guard cutter’s cooling water

intake systems, the attraction of nuisance concentrations of sea gulls, and the attraction of

foraging sea otters which may become sick or die in the receiving waters adjacent

Cordova. EPA’s Dive Team has inspected the waste pile on two occasions during the last

decade and found that the waste piles, while substantial, are less than one acre in area.

EPA has consulted with Eyak and the U.S. Fish and Wildlife Service concerning the

harmful effects of the waste piles of fresh groundfish residues (especially fish bones and

fish parasites) on the sea otter population. EPA has also reviewed technical reports

concerning seafood processing waste pollution and sea otter mortality (e.g., Williams,

Williams and Blanchard, 1999, and King et al. 2000). EPA agrees that discharges of

untreated fish processing waste residues into shallow water during winter months presents

an unnatural and potentially harmful opportunity for sea otter feeding on disproportionately

large quantities of fish skeletons and parasite-infected carcasses. EPA has revised the

permit at Part III.A.9 to prohibit the discharge of uncooked fish processing waste residues

where piles may be an attraction to otters as a food source during the months of

November, December, January, February, and March. Additionally, EPA has revised the

permit at Parts V.B.1.i and V.C.1.i to prohibit the discharge of processing wastes that

create an attractive nuisance.

23. Request: The Native Village of Eyak requests that EPA distribute all reports pertaining to a

permitted seafood processor to federally-recognized tribes that request such information,

including dive surveys, annual reports, waste minimization opportunities, BMP plans and

reports of violations/noncompliance.

Response: EPA can supply public reports and information pertaining to a permitted

seafood processor to tribes, cities and coastal districts upon their request.

24. Request: Emmanuel Keyes, EPA Director of Bill Moore’s Slough Elders Council, in Kotlik

expresses concern about the direct impact of flowing waters from upriver seafood

processing on subsistence foods and the environment down-river (Yukon) and the level of

toxic contaminates (e.g., biocides and detergents) discharged by seafood processing

facilities.

Response: EPA understands this concern of the Elders Council of Bill Moore’s Slough

about the potential for environmental impact of up-river discharges. The issue of downstream pollution that can result from up-stream discharges is one of the classic effects of

pollutant discharges. EPA addressed this issue in the current and previous general

NPDES permit AK-G52-0000. In the 1995 permit EPA excluded (1) streams and rivers
Response to Comments and Concerns Alaska's seafood general NPDES permit

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within one statute mile upstream of a permanent drinking water intake and (2) lakes and

other impoundments of fresh water.

EPA has expanded this exclusion in the current reissuance of the permit, removing the

constraint of “one statute mile” to an extension of the entire stream or river. EPA has

revised the permit at Part III.B.3 to exclude “lakes, rivers and streams” from coverage by

this permit unless a waiver is issued. An application for a waiver to be covered by this

permit for discharges to a lake, river or stream will be forwarded to affected tribes and

coastal districts for consultation.

25. Request: Numerous fishermen request that EPA change the permit to protect set and drift

gill net fisheries from the costly, time-consuming fouling of these nets by seafood

processors discharging into traditional subsistence and commercial gill net fishing areas.

Response: EPA agrees that permittees should control their discharges of seafood

processing waste residues so as to avoid fouling gill nets used in traditional subsistence

and commercial gill net fishing areas. EPA has found that seafood processors have

opportunities to control the timing of their discharges and this control can be applied to

preventing the fouling of gill nets. EPA has revised the permit at Part VI.A.5.b(5)(c) to

provide a specific best management practice to reduce or eliminate any discharge of

wastes that have the potential to collect and foul set or drift nets used in subsistence or

commercial fisheries in nearby traditional use areas.

It is doubly significant that the state of Alaska has authorized a mixing zone extending in a

100 ft radius around the seafood processing waste discharge pipe that allows a variance of

the prohibition against floating, suspended and deposited residues (which includes offal)

within this zone. Inside this mixing zone there is no limit on seafood processing waste

residues. Outside this mixing zone there is a zero-tolerance limit for such offal.

Importantly, the Clean Water Act extends to any citizen or group of citizens the right to

commence a civil action against any person (including the United states or any other

governmental agency) who is alleged to be in violation of a permit limitation, a water quality

standard or an order issued by EPA or a state with respect to such a standard or limitation.

The right of citizen suit empowers citizens to secure enforcement of compliance violations

on permittees. Any legal action against a permittee should be substantiated by appropriate

evidence of such a violation(s), such as photographs and signed and dated eye-witness

statements. [See CWA § 505 et al.]

26. Request: The Chenega Bay IRA Council requests that EPA designate the environmentally

sensitive areas of Chenega and Sawmill Bays, traditionally important subsistence harvest

areas, as “excluded” from the general permit NPDES permit.

Response: EPA cannot justify excluding numerous and potentially expansive coastal

waters around the state of Alaska from coverage on the basis of fishing uses without a

substantial assessment of uses, rights and interactions. In this specific case, EPA will try to

identify those vessels operating in the Chenega and Sawmill Bays and contact them about

the problems of shoreline wastes in the subsistence harvest areas. EPA can, however,

protect tribal subsistence fisheries with conditions within the permit that constrain

permittees from discharging pollutants which foul and otherwise interfere with gill net
Response to Comments and Concerns Alaska's seafood general NPDES permit

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fisheries. EPA has revised the permit at Part VI.A.5.b(5)(c) to require that permittees

develop and implement best management practices which “reduce or eliminate any

discharge of wastes that have the potential to collect and foul set or drift nets used in

subsistence or commercial fisheries in nearby traditional use areas.”

EPA recommends that concerns for the protection of subsistence fishing areas be formally

incorporated in the Alaska coastal management plan, designating the subsistence (or

commercial) fishing area, describing the use, substantiating the level of concern, and

recommending methods for protecting this beneficial use.

Importantly, the Clean Water Act extends to any citizen or group of citizens the right to

commence a civil action against any person (including the United states or any other

governmental agency) who is alleged to be in violation of a permit limitation, a water quality

standard or an order issued by EPA or a state with respect to such a standard or limitation.

The right of citizen suit empowers citizens to secure enforcement of compliance violations

on dischargers permitted under NPDES. Any legal action against a permittee should be

substantiated by appropriate evidence of such a violation(s), such as photographs and

signed eye-witness statements. [See CWA § 505 et al.]
Response to Comments and Concerns Alaska's seafood general NPDES permit

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EPA’S RESPONSES TO

THE RECOMMENDATIONS OF

THE NATIONAL MARINE FISHERIES SERVICE AS PART OF

EPA’S CONSULTATION UNDER THE

FISHERIES MANAGEMENT AND CONSERVATION ACT

AND OF

THE NATIONAL MARINE FISHERIES SERVICE AND THE U.S. FISH AND WILDLIFE SERVICE

PURSUANT TO

THE MARINE MAMMAL PROTECTION ACT

ARE PROVIDED AS FOLLOWS:

27. Measure: The National Marine Fisheries Service (NMFS) recommends that the Permit

include site-specific water quality concerns in addition to technology-based limits.

Response: EPA believes this comment was substantially addressed in the draft permit in

Parts II.A.5, III, IV.D.5-6, V.B.1.j-l, and V.C.1.j-l. These permit conditions, which are carried

forward to the final permit, address (1) compliance with Alaska water quality standards and

(2) excluded areas and provision for site-specific reviews attending waivers of such

exclusion.

As explained in the fact sheet and other support documents, EPA does not find that the

discharges of seafood processing wastes authorized under the Permit require site-specific

water quality analysis. The seafood processing industry, with over 200 facilities that

discharge seafood offal and treated sanitary wastewaters, is well-suited to the

administrative efficiency of a general NPDES permit. Site-specific water quality, as well as

sensitivity of species protected under the ESA, is addressed to a significant extent through

the limits on coverage in defined “excluded waters.” Beyond this, EPA expects water

quality concerns to be very similar from site to site. The general permit contains conditions

that provide for regulatory review of the suitability of the permit and its limits for specific

dischargers and the option to require individual NPDES permits in lieu of coverage under

the general permit.

28. Measure: NMFS recommends that the permit limit discharges by new near-shore and

shore-based facilities to 10,000,000 lbs of seafood processing waste residues per calendar

year without an option for a waiver. NMFS recommends further that EPA require that new

near-shore and shore-based facilities which propose to discharge more than

10,000,000 lbs of seafood processing waste residues per calendar year shall be required to

apply for an individual NPDES permit.

Response: EPA believes this recommendation was addressed in part in the draft permit in

Parts V.B.1.a and V.C.1.a. The permit limits discharges by near-shore and shore-based

facilities to 10,000,000 lbs of seafood processing waste residues per calendar year and

provides conditions for seeking and obtaining a waiver to this limit. EPA has developed the

permit limit of 10,000,000 lbs of seafood processing waste residues per calendar year

based upon modeling of a set of conservative scenarios which is environmentally

protective.
Response to Comments and Concerns Alaska's seafood general NPDES permit

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The permit does provide for the option to apply for a waiver to this limit. The waiver

provision is conditioned upon an applicant’s demonstration that its exceedance of a

10,000,000 lbs per calendar year limit does not violate Alaska’s water quality standards nor

degrade the environment of the receiving water. If an applicant can demonstrate that larger

quantities can be discharged at a site without violating Alaskan water quality standards, this

data will provide a site-specific demonstration that the limit is inapplicable to the currents,

depths, and other characteristics of the receiving water at that site.

In such a case, EPA will waive the permit limit of 10,000,000 lbs seafood processing waste

residues per calendar year and rely upon the permit requirements that discharges comply

with Alaska water quality standards and that the permittee monitor the accumulation of

seafood processing wastes on the seafloor. EPA has taken enforcement action against

permittees with waste piles that exceeded one acre and has required both remediation of

such deposits and changes in pollutant treatment and discharges.

29. Measure: NMFS and USFWS recommend that the permit state that “Any (seafood

processing facility) discharge which results in the harassment of a marine mammal is a

‘taking’ in violation of the Marine Mammal Protection Act (MMPA), unless specifically

authorized by NMFS or the U.S. Fish and Wildlife Service.”

Response: EPA believes the MMPA speaks for itself in this regard. However, EPA has

added a statement into the section of the permit entitled “Selected Other Authorities”

(Attachment A) as an explicit reminder to permittees of their potential liability under the

MMPA.

30. Measure: NMFS recommends that the permit exclude “living substrates in shallow seas”

from coverage under the permit pursuant to the protection of essential fish habitat

provisions of the Fisheries Conservation and Management Act.

Response: EPA is able to address this comment through its authority to establish permit

terms protective of water quality standards, which in Alaska expressly include the

protection of aquatic life species. In response to this comment, EPA has revised the permit

at Parts III.A.10, IV.D.6, and X.

31. Measure: NMFS recommends that the permit prohibit the discharge of petroleum pursuant

to the protection of essential fish habitat provisions of the Fisheries Conservation and

Management Act.

Response: The discharge of petroleum to waters of the U.S., adjoining shorelines, or into

or upon waters of the contiguous zone is prohibited by federal statute. Part IX.H of the

Permit states: “Nothing in this Permit shall be construed to preclude the institution of any

legal action or relieve a permittee from any responsibilities, liabilities or penalties to which a

permittee is or may be subject under Section 311 of the Clean Water Act or under the Oil

Pollution Act.” However, EPA agrees that the prohibition on discharges of petroleum

should be explicitly stated for its permittees and EPA has revised the permit at Part II.B.3,

V.A.1.h, V.B.1.h, and V.C.1.h.
Response to Comments and Concerns Alaska's seafood general NPDES permit

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32. Measure: NMFS recommends that EPA expand its assessment of the effects of this

permit re-issuance on essential fish habitat in Alaska.

Response: During its permitting of seafood processor discharges in Alaska, EPA has

completed numerous environmental assessments, ocean discharge criteria evaluations,

field studies, fact sheets, and responses to public comments. EPA believes that these

technical documents, along with water quality studies and dive surveys conducted by

permittees, provide a complete assessment of the effect of discharges covered by this

general NPDES permit on essential fish habitat. EPA has previously provided copies of its

technical documents to NMFS.

After analyzing the information referred to above, EPA has concluded that more than 95%

of the permitted seafood processing discharges have limited, localized, short-term effects,

and has therefore chosen to permit such discharges under general NPDES permits. Five

percent of Alaska’s seafood processors discharge quantities of offal residues and

biochemical oxygen demand that significantly degrade water quality of coastal bays. EPA

requires that these facilities obtain individual NPDES permits, which allow for more

consideration of site-specific factors and which will likely contain more stringent limits and

more extensive and frequent monitoring.

The General Permit covers approximately 250 seafood processors operating and

discharging across Alaska: 80 on-shore facilities, 20 near-shore facilities, and 150 off-shore

facilities. Each of these 250 dischargers is authorized a mixing zone of 100 ft radius and

31,416 sq. ft area within which Alaska water quality standards can be exceeded for

residues, dissolved gas, oil and grease, fecal coliform, pH, temperature, color, turbidity and

total residual chlorine. One such mixing zone represents less than 0.5% of the surface

area of a small bay measuring one-half mile by one-half mile. Taken collectively across

Alaska and 250 permitted seafood processors, the cumulative areal effect on receiving

waters is less than one-third of a square mile. The cumulative area of mixing zones of all

seafood processors authorized to discharge under the General Permit is less than 0.0002%

of State coastal seas (three miles wide) adjacent Alaska’s 44,000 miles of coastline and

less than 4 X 10-6 % of the fishery conservation zone (200 miles) adjacent to Alaska.

Accordingly, EPA believes that the area of water quality affected by the non-toxic

discharges authorized under the permit is relatively negligible.

Alaska water quality standards for floating, suspended and settleable residues, biogenic oil

and grease, and fecal coliform bacteria are exceeded within these mixing zones. EPA

believes that the Alaska water quality standards for dissolved gas, pH, temperature, color,

turbidity, and total residual chlorine may be exceeded within a zone of initial dilution that

occurs in the center of a mixing zone for stationary, shore-based dischargers, and are not

exceeded by mobile near-shore and off-shore processors. Surveys of the mixing zones for

seafood processors indicate that discharges of processing wastes attract and aggregate

rather than repel and disperse fishes, sea birds and marine mammals.

Seafood processing wastes settle upon and may accumulate on the sea floor. The size

and duration of deposits depends upon the amount and type of offal discharged, the

mobility of the source, and the depth and hydrodynamic characteristics of the receiving

water. At one end of the continuum, seafood processing waste residues may be

discharged from stationary sources as small volumes into moderate currents or large
Response to Comments and Concerns Alaska's seafood general NPDES permit

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volumes into high currents and from mobile sources as large volumes into deep waters,

producing deposits that persist for periods of hours to weeks. At the other end of the

continuum, stationary discharges of tens of millions of pounds of offal into low current

waters can produce waste piles that cover acres of sea floor, rise twenty feet or more

above the sea floor, and persist for years to decades. EPA, with the concurrence of ADEC,

implements and administers an NPDES permitting strategy that covers the majority of

Alaskan seafood processors which produces small, short-term deposits under general

permits featuring technology-based limits for remote Alaskan locations and ambient

monitoring of the sea surface, shoreline and sea floor. High-impact dischargers of seafood

processing wastes are permitted individually with site-specific water quality-based limits

and effluent as well as ambient monitoring.

Seafood waste may be consumed by large marine life such as sea lions, sea otters, fish,

crabs, sea stars, and shrimp for as much as one week after discharge. After a week, the

utilization of discharged offal is essentially the province of nematode assimilation and

bacterial decomposition. Decaying seafood wastes can be beneficial to the sea floor

habitat when dispersed. In those areas where seafood wastes accumulate as large mats

or piles of rotting flesh, bones and shells, it can eliminate all life more complex than

anaerobic bacteria that is trapped beneath the waste.

As noted above, the General Permit will authorize discharges from 80 on-shore, 20 nearshore, and 150 mobile off-shore facilities. Based on the data and technical literature

available, EPA believes that (1) 80% of the permittees have no persistent deposits

associated with their discharges (40 on-shore, 10 near-shore, and 150 mobile off-shore

facilities), (2) 16% of the permittees have persistent deposits of less than one-half acre (30

on-shore and 10 near-shore facilities), and (3) 3% of the permittees have persistent

deposits of between one-half acre and one acre (7 on-shore facilities). Three facilities have

deposits of seafood processing waste residues that exceed the State-authorized one acre

zone of deposit; EPA and ADEC are currently negotiating with these facilities for the

implementation of alternate methods of treating these discharges and reducing their

deposits. Based on this understanding of the impacts of seafood processing waste

residues on the sea floor, EPA finds that the cumulative burial of sea floor by persistent and

contiguous deposits of decaying offal is approximately one-third square mile across all of

Alaska (4 X 10-5%). A one-acre zone of deposit would represent 0.625% of the surface

area of a small bay measuring one-half mile by one-half mile, though no Alaskan seafood

processor authorized to discharge into a bay of this size has created a waste deposit as

large as an acre.

EPA believes that discharges of these dimensions and of this nature have a minimal

adverse effect on essential fish habitat on the sea floor. EPA will continue to collect

ambient monitoring data from seafood processors permitted to discharge under NPDES

permits. EPA will continue to build upon its assessment of the effects of permitted seafood

processing wastes discharges on essential fish habitat in Alaska in future permit reissuances. EPA looks forward to the contributions of NMFS’ own studies of these effects to

expanding this assessment.
Response to Comments and Concerns Alaska's seafood general NPDES permit

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EPA’S RESPONSES TO

THE REASONABLE AND PRUDENT MEASURES, TERMS AND CONDITIONS REQUESTED BY

THE NATIONAL MARINE FISHERIES SERVICE AND

THE UNITED STATES FISH AND WILDLIFE SERVICE AS PART OF

EPA’S CONSULTATION UNDER THE ENDANGERED SPECIES ACT

ARE PROVIDED AS FOLLOWS:

33. Measure: The U.S. Fish and Wildlife Service (FWS) requests that EPA provide it with a list

and map of the areas excluded from coverage by the permit.

Response: EPA provides a list and map of the areas excluded from coverage by the

permit for use and reference by permittees and interested federal, state and tribal agencies.

EPA has addressed this measure at Appendices A, B and C. These appendices are

carried forward to the final permit.

34. Measure: NMFS and FWS request that EPA make a determination of the potential effect

of a permitted discharge on listed threatened or endangered species and that the permit

provide for consultation with the Services prior to the issuance of any waivers for

discharges into excluded areas identified as protected, special, at-risk, or degraded waters.

Response: The draft permit provided for consultation with NMFS and FWS in the

authorization of waivers for discharge in “excluded areas” as well as its 1995 predecessor.

EPA has addressed this measure in the final permit at Part IV.D. EPA will, in consultation

with the services, make a determination of the potential effects of individual waivers on

ESA-listed species and their habitats that is consistent with the terms and conditions of the

USFWS biological opinion and the terms of the permit.

35. Measure: FWS requests that EPA provide it with a list of the locations of seafood

processors authorized to discharge by the permit and update this list annually.

Response: EPA is developing a tracking database in Lotus Approach for the administration

of information on seafood processors which will supplement the national Permits

Compliance System database and support convenient reporting of information on

dischargers and their locations. EPA will provide reports annually to FWS, NMFS and

ADEC. EPA has addressed this measure in the permit at Parts IV.C.4, IV.C.7 and

VI.B.2.c(5).

36. Measure: FWS requests that the permit require new permittees to position seafood

processing waste discharges where they are least likely to cause harm to species listed as

threatened or endangered under the Endangered Species Act (ESA).

Response: EPA recognizes that new permittees should locate discharge outfalls so as to

minimize adverse effects upon listed species. EPA has addressed this measure in the

permit at Parts III, IV.D, V.B.1.f, V.B.1.i, V.C.1.f, V.C.1.i, and VI.A.3.

37. Measure: FWS requests that the permit prohibit seafood processors from conducting

fueling operations within four nautical miles of locations that are documented to have been

used by 1,000 or more Steller’s eiders, as indicated by surveys conducted since 1990 or
Response to Comments and Concerns Alaska's seafood general NPDES permit

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subsequent to the issuance of the Service’s biological opinion. Documentation exists to

include Bechevin Bay, Morzhovoi Bay, Izembek Lagoon, Nelson Lagoon/Port Moller

Complex, Cape Seniavin, Seal Islands, Port Heiden, Cinder River State Critical Habitat

Area, Ugashik Bay, Egegik Bay, Kulukak Bay, Togiak Bay, Nanwak Bay, Kuskokwim Bay,

Goodnews Bay, and the south side of Nunivak Island.

Response: EPA maintains its assessment that the discharges of seafood processing

wastes which are authorized under general NPDES permit AK-G52-0000 are not

detectable at a distance of one nautical mile or more from the point of discharge. EPA will

continue to use one nautical mile as the maximum impact zone of a seafood processing

discharge authorized under this permit until data is developed which demonstrates

otherwise.

A distance of four nautical miles is FWS’ hypothetical impact zone for oil spills by vessels

located at a seafood processing location. EPA asked members of Alaska’s and NOAA’s oil

spill staffs to estimate the impact zone for a hypothetical spill of 150 gallons of diesel fuel

into typical spring conditions using NOAA’s ADIOS 2 (Automated Data Inquiry for Oil Spills)

model [http://response.restoration.noaa.gov/software/adios/getadios.html]. Two separate

modeling evaluations indicated that a diesel spill of this volume would have an impact zone

of hundreds of yards rather than of miles. FWS has not adequately explained the basis for

its proposed 4-mile limit, nor has it provided modeling results consistent with the guidelines

for predicting spills in Alaskan coastal waters. Nor has FWS obtained and provided an

independent modeling analysis of the impact zone of its hypothetical spill for the oil spill

experts at NOAA. EPA speculates that the discrepancy between FWS’s estimate of an

impact zone associated with an oil spill and the estimate developed with the ADIOS model

may be the result of the different sets of assumptions used by and the experience of those

who developed the estimates. EPA repeats its earlier requests that FWS confer with EPA

and members of the Alaska and NOAA oil spill offices to reconcile this discrepancy (Hill,

12/01/2000).

EPA notes that the discharge of petroleum is prohibited by federal statute. Oil spills and

illegal discharges (e.g., bilge pumping) by ships are regulated by the U.S. Coast Guard and

are not under the governance of this permit or EPA. Nonetheless, EPA has provided for an

explicit prohibition of discharges of petroleum by permitted facilities in the permit at

Part II.B.3 and a best management practice requiring evaluation of refueling areas for

containment in the permit at Part VI.A.4.b(1).

EPA maintains that the scope of reasonable and prudent measures appropriately

addressed in the permit is determined in relation to effects of the authorized discharges

which EPA regulates through the NPDES permit program rather than by illegal actions

regulated under authorities other than the Clean Water Act and by government agencies

other than EPA. To the extent entities other than EPA choose to follow reasonable and

prudent measures as a way of guarding against liability for take under the ESA, they may

do so independently of what is required in the Permit.
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FWS has provided this list of waters that it has identified as critical habitat for Steller’s

eiders, i.e., which functions as habitat for Steller’s eiders during some part of the year.

EPA has included these listed waters as areas excluded from coverage under this permit in

accordance with FWS’ biological opinion. In accordance with permit conditions, permittees

may request waivers to discharge in “excluded areas” and can expect that EPA, ADEC,

FWS and NMFS will confer in evaluating and acting upon such requests. EPA has

addressed this measure in the permit at Parts III, IV.D, VI.D.2-3, and Appendices A, B and

C.

38. Measure: FWS requests that EPA ensure that permittees which dispense fuel have

present automatic back pressure shutoff nozzles as required by 33 CFR 154.500. EPA

shall provide the Service with written assurance that all of its permittees under this permit

are in compliance with this regulation.

Response: As the regulation cited by FWS is not directly enforceable by EPA, EPA has

chosen to include it in Attachment A to the permit, entitled “Selected Other Authorities.”

This should increase awareness among permittees of their potential liability under this

regulation. The investment of resources that would be required to inspect all permitted

facilities for compliance with this regulation would be very substantial, and would at the very

least require a major reordering of EPA’s inspection priorities for the State of Alaska.

Accordingly, EPA anticipates that it will not be able to meet FWS’ request for such a written

assurance.

39. Measure: FWS requests that EPA shall prepare an annual summary report of petroleum

releases by permittees under this permit and submit this to FWS. The report shall include

information on the number of birds within one mile of the spill zone and other information.

Response: EPA does not collect information on petroleum releases in offshore waters. To

do so would require a significant restructuring of EPA’s information-gathering activities in

Alaskan waters. EPA anticipates that it will not be able to supply the requested annual

summary report, which EPA believes would constitute more than a minor change to the

proposed action (i.e., issuance of the permit). FWS must look to agencies and offices

currently committed to tracking petroleum releases in Alaskan waters for spill reports.

40. Measure: FWS requests that EPA require permittees to report to FWS all dead, injured, or

contaminated Steller’s eiders resulting from petroleum releases by the permittee or other

vessels while such vessels are engaged in fueling activities in association with the

permittee. Dead, injured, and contaminated eiders shall be handled according to the dead

and injured eider protocol. Costs of rehabilitation of injured and contaminated eiders shall

be borne by EPA. Alternately, EPA may require that the permittee shall bear these bird

rehabilitation costs.

Response: The Permit will require reporting of all observances of dead, injured, or

contaminated Steller’s eiders, regardless of the cause. EPA has revised the Permit at

Part VI.D.7.a(4). In its outreach efforts described in the next Response below, EPA will

inform permittees of the protocol for handing dead, injured, and contaminated eiders. EPA

is not aware of a mechanism through which EPA could either directly fund rehabilitation of

injured or contaminated eiders or require permittees to bear these costs.
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41. Measure: FWS requests that EPA conduct outreach efforts that encourage permittees to

report to the Service all observations of dead, injured or contaminated Steller’s eiders.

Response: EPA will prepare and distribute an outreach newsletter to seafood processing

permittees which informs them of issues pertaining to ESA-listed species of the Alaskan

coastal zones and which encourages reporting observations of dead, injured or

contaminated species to FWS and NMFS. EPA has also provided conditions supportive of

such reporting in the permit. EPA has addressed this measure in the permit at

Parts VI.B.2.e, VI.D.2-3, and Appendix D. EPA looks to FWS and NMFS for their

collaboration and support in the development and dissemination of information protective of

ESA-listed species.

42. Measure: FWS requests that EPA develop a database of Steller’s eider sightings for all

locations where shore-based and near-shore seafood processors discharge under the

permit.

Response: EPA realizes that our national understanding of the distribution of Steller’s

eiders and other ESA-listed species is limited, and with this our ability to protect and

preserve ESA-listed species is also limited. EPA finds it reasonable to require permittees

of AK-G52-0000 to monitor the numbers of Steller’s eiders and other ESA-listed species

within the established sea surface monitoring program. EPA has addressed this measure

in the permit at Parts VI.B.2.e, VI.D.2-3, and Appendix D.

43. Measure: FWS requests that the permit require all permittees to conduct daily seabird and

sea duck monitoring within a 500 m radius around their facility and its seafood processing

waste discharge outfall. The daily monitoring log shall record the species, number, cardinal

direction of the bird relative to the facility or outfall, and the distance of the bird from the

facility or outfall.

Response: EPA does not believe that seafood processors will have staff qualified to

identify Steller’s eiders, a small sea duck whose females’ plumage looks very much like

other sea ducks. Nor does EPA believe that observers with binoculars can reliably identify

sea ducks in typical Alaskan sea states at a distance of 500 meters. EPA does believe that

observers can look for and attempt to identify and count sea ducks in the 100 ft mixing

zone around their outfalls, though the accuracy of such observations is likely to be

uncertain. To this end, EPA has extended the purpose of its sea surface monitoring

conditions to include recording sightings of ESA-listed species. EPA has addressed this

measure accordingly in the permit at Parts VI.B.2.e, VI.D.2-3, and Appendix D. EPA looks

to FWS to provide training for the identification of Steller’s eiders.

44. Measure: FWS requests that EPA require permittees discharging into shallow water of less

than ten fathoms (60 ft MLLW) within four nautical miles of locations which have been

documented to have been used by 1,000 or more Steller’s eiders to conduct a weekly bird

census of waters within one nautical mile of the facility. Documentation exists to include

Bechevin Bay, Morzhovoi Bay, Izembek Lagoon, Nelson Lagoon/Port Moller Complex,

Cape Seniavin, Seal Islands, Port Heiden, Cinder River State Critical Habitat Area, Ugashik

Bay, Egegik Bay, Kulukak Bay, Togiak Bay, Nanwak Bay, Kuskokwim Bay, Goodnews Bay,

and the south side of Nunivak Island.
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Response: EPA believes the concerns underlying this request are largely addressed by

the “excluded waters” provisions of the General Permit. However, the weekly census

requested would add significantly to the cost of compliance, and therefore would constitute

more than a minor change to the permit. Accordingly, and because the “excluded waters”

provision goes far towards addressing FWS’ underlying concern, EPA is not requiring that

permittees conduct the requested surveys within the permit. FWS may, however, provide

this condition as a pre-requisite for approval of any waiver to operate and discharge in

receiving water which identified as prime habitat for Steller’s eiders.

45. Measure: FWS requests that EPA provide FWS with an annual summary report of all dive

surveys conducted in association with this permit. The report will indicate where the dive

occurred, the facility at which the dive is targeted, and the results of the dive. Monitoring

results shall include identification of the size, location, depth and thickness of deposited

organic waste piles. In addition, FWS requests that EPA provide FWS in writing a list of all

instances in which dives were indicated as being necessary but for which dives did not

occur.

Response: EPA will provide FWS with an annual summary report of all dive surveys

conducted in association with this permit. The report will indicate where the dive occurred,

the facility at which the dive is targeted, and the results of the dive. EPA will provide a

report of the maximum thickness of deposited organic waste piles from those permittees

which are required to measure pile thickness. EPA may discuss with FWS instances in

which dives were indicated as being necessary but for which dives did not occur.

46. Measure: FWS requests that EPA determine if Steller’s eiders are attracted to the

discharge of seafood processors. EPA shall coordinate with FWS on study design and

shall implement it within 12 months of the issuance of the permit.

Response: EPA agrees to work with FWS regarding the study described in this condition.

The FWS request describes the study in only vague terms, and so it is not possible at this

point to say whether sufficient resources will be available. Data generated from the

monitoring of eiders required in the General Permit may serve as a useful start for such a

study, and so EPA believes it may be possible to design a study that is practicably

achievable within its resource constraints, that is based on sound data, and that is

otherwise satisfactory to the Service.

47. Measure: FWS requests that the permit require permittees to monitor the collision of

Steller’s eiders with the physical structures of their facilities (e.g., buildings, lights, poles,

power lines, guy wires, vessels, docks and towers). Monitoring of collisions will include

logging the number of Steller’s eider observed injured or dead as a result of these

structures, or that are otherwise know to have struck these structures. Dead eiders’ shall

be recovered and kept frozen until they can be transferred to FWS according to the dead

and injured eider handling protocol. Any collisions, or suspected collisions between

Steller’s eiders and processing facilities shall be immediately reported to FWS Anchorage

Field Office (1-800-272-4147).

Response: EPA realizes that this information is important to understanding the distribution

and life history of Steller’s eiders. EPA has addressed this measure in the permit at

Parts VI.B.2.e, VI.D.2-3, and Appendix D.
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48. Measure: FWS requests that all new stationary seafood processors shall conduct no fewer

than six surveys for Steller’s eider within four nautical miles of the facility’s proposed site.

The surveys shall be conducted at intervals of two weeks or greater and conducted

between November 1 and March 30. Surveys must follow the standard protocol adopted

by FWS Office of Migratory Bird Management for surveys of seabirds and sea ducks by

boat and/or aircraft. Information from individual surveys shall be made available to FWS

upon request.

Response: As mentioned above, the General Permit requires monitoring and

recordkeeping regarding dead, injured, and contaminated eiders. As also mentioned

above, EPA’s outreach efforts will include dissemination of the injured bird protocol.
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EPA’S RESPONSES TO

THE STIPULATIONS OF ALASKA'S CLEAN WATER ACT § 401 CERTIFICATION AND

COASTAL ZONE MANAGEMENT ACT CONSISTENCY DETERMINATION

ARE PROVIDED AS FOLLOWS:

49. Stipulation: The State of Alaska authorizes a mixing zone for discharges covered by the

permit with dimensions described as follows: (a) the horizontal extent determined by 100 ft

radius from the outfall and (b) the vertical extent extending up to the sea surface and down

to the seafloor. The mixing zone is a volume of water which surrounds the discharge outfall

where the effluent plume is diluted by the receiving water within which the following

specified water quality criteria may be exceeded: residues, dissolved gas, oil and grease,

fecal coliform, pH, temperature, color turbidity, and total residual chlorine.

Response: In response to the State’s authorization of a mixing zone EPA has revised the

permit at Parts V.A.1.i, V.B.1.k, V.C.1.k, and VI.D.2-3.

50. Stipulation: The State of Alaska authorizes a zone of deposit of one (1) acre for facilities

covered by the permit under the classifications of “near-shore seafood processor” and

“shore-based seafood processor.” Discharges shall not violate the Alaska water quality

standards criterion for residues beyond the authorized zone of deposit. In no case may

water quality standards be violated in the water column outside of the zone of deposit by

any action, including leaching from or suspension of deposited materials.

Response: In response to the State’s authorization of a zone of deposit EPA has revised

the permit at Parts V.B.1.l, V.C.1.l, and VI.C.2-3.

51. Stipulation: The State of Alaska requires that the permit exclude any waterbody that

would not meet the minimum requirements for mixing zone size as specified under 18 AAC

70.255: “the linear length of all mixing zones intersected on any given cross section of an

estuary, inlet, cove, channel or other marine water may not exceed 10% of the total length

of that cross section and the total horizontal area allocated to all mixing zones may not

exceed 10% of the surface area (of the waterbody).”

Response: In response to this stipulation, EPA has revised the permit at Part III.D.

52. Stipulation: The State of Alaska requests that permittees with shore-based facilities

identify the municipal sewage system or on-site septic system that accepts its discharges

and the design capacity and treatment process of this service system.

Response: In response to this stipulation, EPA has revised the permit at Part IV.C.8.a.

53. Stipulation: The State of Alaska requires that a request for a waiver to discharge in an

excluded area must include a description of how and why the discharges will not cause a

violation of Alaska water quality standards, including antidegradation, the zone of deposit

and the mixing zone.

Response: In response to this stipulation, EPA has revised the permit at Part IV.D.5.
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54. Stipulation: The State of Alaska requires that a request for a waiver to discharge in “atrisk water resources and waterbodies” and “degraded waterbodies” must be approved by

ADEC prior to approval of the waiver and authorization to discharge under this permit.

Response: In response to this stipulation, EPA has revised the permit at Part IV.D.

55. Stipulation: The State of Alaska requests that best management practices plans for

facilities discharging upstream of gill-net fisheries shall include specific practices and

standard operating procedures to eliminate the discharge of solid wastes that collects in

gill-nets.

Response: In response to this stipulation, EPA has revised the permit at

Part VI.A.5.b(5)(c). This stipulation supports EPA’s responsive revision to the permit based

upon the comments of commercial fishermen concerning the deleterious effects of seafood

processing waste discharges on gill nets (both drift-nets and set-nets).

56. Stipulation: The State of Alaska requests that permittees meet the recording and

reporting requirements of the permit using forms for the Notice of Intent, annual report,

seafloor survey, and sea surface survey.

Response: EPA has incorporated this stipulation into the permit at Parts IV.A, VI.B, VI.C,

VI.D, and Attachments B, C, D and E.

57. Stipulation: The State of Alaska requires that new shore-based and near-shore facilities

applying for authorization to discharge under the permit submit an Alaskan Coastal Project

Questionnaire to the Alaska Department of Governmental Coordination for its review of

consistency with the Alaska Coastal Management Program.

Response: In response to this stipulation, EPA has revised the permit at Part IV.A.4.

58. Stipulation: The State of Alaska requests that EPA consult with ADEC, ADGC and the

appropriate coastal district(s) to ensure that the proposed discharge is in compliance with

the ACMP statewide standards and the coastal district policies.

Response: In response to this stipulation, EPA has revised the permit at Parts IV.A.4,

V.B.1.a, and V.C.1.a.

59. Stipulation: The State of Alaska requests that the permit shall prohibit the discharge of

processing wastes which create an “attractive” nuisance situation whereby the discharge

attracts wildlife in a manner that creates a threat to wildlife or to human health and safety.

Response: In response to this stipulation, EPA has revised the permit at Parts V.B.1.i and

V.C.1.i. This stipulation supports EPA’s responsive revision to the permit based upon the

comments of the Native Village of Eyak and the U.S. Fish and Wildlife Service concerning

the protection of sea otters from the dangers of ingesting untreated fish processing waste

residues.