FACT SHEET FOR NPDES PERMIT WA 002290-0 

BP CHERRY POINT REFINERY 

PERMIT MODIFICATION PUBLIC NOTICE DATE- SEPTEMBER 4, 2013 

The Department of Ecology issued a NPDES permit to the BP Cherry Point Refinery on 

February 14, 2012. The permit became effective on March 1, 2012. On March 14, 2012, Puget 

Soundkeeper Alliance, RE Sources for Sustainable Communities, and Friends of the Eatih 

appealed the permit to the Pollution Control Hearings Board. BP also appealed the NPDES 

permit on March 14, 2012. Both appellants filed Motions for Summary Judgment on several 

issues. The Board heard oral argument on the motions on March 21, 2013. 

Settlement discussions were held with both parties. The scheduled hearing before the Board was 

not held. A settlement agreement between Ecology, BP, and the environmental groups was 

finalized on July 26, 2013. The Board also issued their final ruling on the motions for summary 

judgment on July 26, 2013. 

As a result of the settlement agreement and the Board's decision on the motions for summary 

judgment, several permit conditions were changed in the proposed permit modification. The 

proposed changes are discussed in this fact sheet. 

PROPOSED PERMIT CHANGES 

1. Monitoring Frequencies at Outfall 001 

Permit Condition S l.A. was revised to change the monitoring frequencies for TSS and oil 

and grease from "7 /wk" to "daily". This change was made to <{larify the intent of the 

monitoring requirement. 

2. Monitoring at Stormwater Outfalls 002, 003, 004, 005, and 007 

TSS monitoring was removed from Permit Condition S1.C.3. Turbidity monitoring is 

still required to assess the levels of suspended solids in stormwater discharged from the 

site. 

3. Notification of Untreated Wastewater 

The wording in Permit Condition S3.E.2.(e) was changed to: "Any wastewater that is not 

treated in accordance with the Ecology approved engineering report whether or not such 

wastewater endangers health or the environment or exceeds any effluent limitation in the 

permit." This modification was made to clarify the intent of the notification requirement. 
Fact Sheet Supplement for NPDES Pennit No. W A 002290-0 

September 4, 2013 

4. Notification of Material Change in Influent 

A new provision was added as Permit Condition S3.F.(d): "The Permittee must, as soon 

as possible, but no later than thiliy (30) days prior to the proposed changes, give notice to 

Ecology of a process modification which will result in the installation of new process 

units or new equipment in existing process units that could cause material change in the 

quantity or composition of the influent processed by the wastewater treatment system." 

5. Submittal of WET Test Results 

The submittal requirement in Permit Condition S7.C. was changed from "within sixty 

(60) days after each sample date" to "within sixty (60) days after completion of the test". 

6. WET Test Failure that is a Permit Violation 

Permit Condition S7.D. was revised to identify when a WET test failure is a permit 

violation. The new wording states: "If any toxicity test conducted under subsection D.1. 

shows a statistically significant difference in response between the ACEC and the 

control, using the statistical test described in subsection B, then the test result is a 

violation of the acute limit." 

7. Electronic Reporting 

Permit Conditions S3.A., S7.E.l., and S8.B.l. were revised to require electronic reporting 

of monitoring results and WET test results. 

8. Herring Toxicity Study 

The herring toxicity study, Permit Condition S.9, was removed from the permit. Instead, 

Ecology and BP signed an agreed order requiring BP to conduct a herring chronic 

toxicity study. A number of changes from the permit language were agreed to in the 

herring order: no acute testing, no submittal of a Toxicity Implementation Plan, number 

of tests reduced to six, a study completion date of March 1, 2017, no comparisons to 

ACEC or CCEC, and comparisons to two additional EPA tests for the larval survival and 

growth test. 

9. Sediment Recharacterization at the North Pier 

Permit Condition S 11. was revised to: "The Permittee must recharacterize sediment 

toxicity at the North Pier if Ecology determines that significant spills or accumulation of 

spills have occurred since the 2006 baseline sediment characterization." This change was 

made to clarify the intent of the monitoring requirement. 
Fact Sheet Supplement for NPDES Permit No. W A 002290-0 

September 4, 2013 

10. Pollution Prevention Plan 

Redundant language was deleted from the first paragraph of Permit ConditionS ll.D. and 

other wording from this subsection was moved to Pe1mit Condition S ll.B. 

11. General Conditions 

General Conditions Gl4. and Gl9. were revised to align with language in the federal 

regulations ( 40 CFR). 

PUBLIC INVOLVEMENT INFORMATION 

The Department of Ecology has tentatively determined to modify the NPDES permit for the BP 

Cherry Point Refinery. The Department will publish a Public Notice of Draft (PNOD) on 

September 4, 2013 in the Ferndale Record to inform the public that a draft permit modification 

and fact sheet are available for review. 

Interested persons are invited to submit written comments regarding the draft permit 

modification. The draft permit modification, fact sheet, and related documents are available for 

inspection and copying between the hours of 8:00a.m. and 5:00p.m. weekdays, by appointment, 

at the Ecology offices listed below. 

Department of Ecology 

Industrial Section 

300 Desmond Drive 

Lacey, WA 98503 

Written comments should be mailed to: 

LiemNguyen 

Department of Ecology 

Industrial Section 

P.O. Box 47600 

Olympia, W A 98504-7600 

Comments should reference specific text followed by the requested change or concern when 

possible. Ecology will only consider comments that pertain to the permit conditions we are 

proposing to modify. 

The Department will consider all comments received within thirty (30) days from the date of 

public notice of the draft indicated above, in formulating a final determination to modify the 

permit. The Department's response to all significant comments is available upon request and will 

be mailed directly to people expressing an interest in this permit. 
Fact Sheet Supplement for NPDES Petmit No. W A 002290-0 

September 4, 2013 

Fmiher information may be obtained from the Department by telephone at (360) 407-6955 or by 

writing to the address listed above. 
WASHINGTON STATE DEPARTMENT OF ECOLOGY 

RESPONSE TO PUBLIC COMMENTS 

BP Cherry Point Refinery 

1560A Marble Valley Road 

Blaine, Washington 99101 

NPDES Permit No. WA0022900 

December 2, 2013 

Ecology published notice of an opportunity to comment on proposed modifications to NPDES 

Permit No. WA 002290-0, in the Ferndale Record on September 4, 2013. The proposed 

modifications are in response to an agreement settling appeals of the BP permit and rulings from 

the Pollution Control Hearings Board (PCHB). In the notice, Ecology invited public review of 

the proposed modifications and provided a 30-day public comment period. The deadline for 

submittal of written comments was October 7, 2013. Ecology received written comments from 

two entities. 

Comments were received from: Beth Ginsberg, Stoel Rives, on behalf of BP 

Richard Smith, Smith & Lowney, on behalf of 

Puget Soundkeeper Alliance, RE Sources, and Friends of the 

Earth (collectively "Soundkeeper") 

We included all of the comments received in this document. The comments were summarized 

where appropriate, to save time and space. The original comments comprise part of the legal 

record for this permit. The record is available for public review at Ecology's Industrial Section 

office in Lacey, W A. Anyone interested in reading the full text of the comments or in obtaining 

a copy of a particular comment should call or e-mail Liem Nguyen in Lacey at (360) 407-6955 

or liem.nguyen@ecy .wa.gov. 

Comments appear in regular text, followed by Ecology's response in italicized text. Ecology 

will send a copy of this response to comments to each individual who provided comments. 

Comments from Beth Ginsberg (1.-2.) 

1. Ecology has agreed to remove TSS monitoring from the stormwater outfall 002, 003, 

004, 005, and 006. Ecology has done so in Condition Sl.C.3. BP notes that TSS 

storm water monitoring for outfall 003 is still required in Condition S 1.E. 

BP requests that the requirement for TSS stormwater monitoring for outfall 003 be 

removed from the final modified permit in Condition S 1.E. This modification will be 

consistent with Condition Sl.C.3. 
Response to Comments 

NPDES Permit No. WA0022900 

December 2, 2013 

Page 2 

Ecology agreed to remove TSS monitoring at stormwater outfalls 002, 003, 004, 005, and 

007 in Condition SJ. C. 3 but did not agree to remC!ve TSS monitoring at outfalls 003 or 

006 in Condition Sl.E. Condition Sl.E. refers to different sources of stormwater and 

discharge conditions. 

2. Condition S11.D on page 37 refers to Condition S12.A. and should refer to S11.A. 

instead. 

The reference to Condition Sl2.A. was changed to SJJ.A. 

Comment from Richard Smith (3.) 

3. Ecology proposes to modify the acute WET provision of the permit, Condition S7, by the 

addition of a single sentence at the end of S 7 .D. Soundkeeper submits that this proposed 

modification is inadequate to comport with either the provisions of state law or the terms 

ofthe PCHB's order. 

First, despite the PCHB's order, Soundkeeper maintains that the permit may not authorize 

a discharge that fails the compliance test for acute WET, thus violating the effluent limit 

for acute toxicity. Washington's water quality standards prohibit the discharge of toxic 

substance~ that cause acute toxicity in the receiving waters. WAC 173-201A-240. This 

narrative reflects a prohibition in state statute: "In no event shall the discharge of 

toxicants be allowed that would violate any water quality standard, including toxicant 

standards, sediment criteria, and dilution zone criteria." RCW 90.48.520. The purpose 

of WET testing under WAC 173-205 is to determine whether a discharge is toxic and 

subject to the prohibition. It describes the statistical analysis constituting the compliance 

test for acute toxicity, and states that this compliance test "shall be considered to be a 

maximum daily discharge permit limitation." WAC 173-205-070(1 )(d). 

This means that the test for compliance with the permit must be the same as the 

compliance test for acute toxicity, as defined by the regulation. This means that the 

permit may not authorize a toxic discharge, which is one that fails the acute toxicity 

compliance test. S7.D. already provides a procedure for BP to demonstrate that a failing 

WET test is an anomaly to invalidate it. There is no legal, practical, or rational basis for 

interpretation of these state laws and regulations that would allow authorization of any 

discharge that fails a WET compliance test. S7 should be rewritten to effect the 
Response to Comments 

NPDES Permit No. W A0022900 

December 2, 2013 

Page 3 

prohibition on toxic discharges by equating any failure of the compliance test with 

violation of the acute WET effluent limitation and the permit. 

Second, even accepting the PCHB' s faulty interpretation of state law on WET effluent 

limitations, this proposed modified condition is problematical. The proposed 

modification would make violation ofthe permit contingent on the failure of a follow-up 

WET test for each regularly sc~eduled acute WET compliance test failure. In other 

words, no failure of a regularly schedule actue WET test can constitute a permit violation 

unless there is also a failure of one of the follow-up tests. It is unlikely that the PCHB 

would deem this acceptable since repeated failures of regularly scheduled WET tests also 

indicate an ongoing pattern of toxicity. S7 should clarify that any failure of any acute 

WET test following the first failure recorded during the permit term constitutes a permit 

violation. 

In addition, the effect fo the sentence proposed for insertion at the end of S7.D is unclear. 

Its final clause, "then the test result is a violation of the acute limit," is not adequate to 

clarify that this means "violation of the permit" given the sloppy use of terminology in 

the modified condition. S7.A purports to define "the effluent limit for acute toxicity." 

S7.B purports to define "compliance with the effluent limit for acute toxicity." However, 

failure of an acute WET test constituting a violation ofthis"effluent limit" does not mean 

there is a permit violation. Does the statement proposed to be added to S7.d., "then the 

test result is a failure of the acute limit," mean that there is a permit violation? 

Soundkeeper points to the WET limit language that Ecology's Northwest Regional Office 

recently incorporated into NPDES Permit No. WA0031968 for Seattle Iron and Metals 

Corporation as a more appropriate permit drafting response to the PCHB 's order on WET 

limitations. 

Condition S7.D. was revised to read "If any toxicity test conducted under subsection D.1. 

shows a statistically significant difference in response between the ACEC and the 

control, using the statistical test described in subsection B, then the test result is a 

violation of the permit. The Permittee must submit a Toxicity Identification/Reduction 

Evaluation (TI/RE) plan to Ecology within sixty (60) days after the sample date [WAC 

173-205-1 00(2)]." 

This change is consistent with the PCHB 's decision on exceedances of WET limitations. 

The Board deferred to Ecology's determination that a single WET limit exceedance does 

not indicate a pattern of toxicity. Instead, it triggers additional testing aimed at 
Response to Comments 

NPDES Permit No. W A0022900 

December 2, 2013 

Page 4 

determining if there is continued toxicity and a violation of the toxicity standard of the 

permit. If any of the subsequent tests fail the WET limit, that test failure is a violation of . 

the permit. 

Determining if there is ongoing toxicity versus transient toxicity is different than an 

anomalous WET test. The issue is not about the anomalous test language. It is about 

calling that first noncompliance with the WET limit a violation. The language in the 

Seattle Iron and Metals Corporation NP DES permit is not consistent with the PCHB 's 

decision. 

Note: Two additional changes were made to the BP permit. Footnote i in Condition Sl.A. was 

revised to refer only to the priority pollutants listed in Appendix B and Appendix B was 

replaced with an updated version that more clearly identifies the list of priority pollutants.