### FACT SHEET FORNPDES PERMIT WA 002290-0 

### BP CHERRY POINT REFINERY PERMIT MODIFICATION PUBLIC NOTICE DATE- SEPTEMBER4, 2013

The Department ofEcology issued a NPDES permitto the BP Cherry PointRefinery on February 14, 2012. The permitbecame effective onMarch 1, 2012. On March 14, 2012, Puget Soundkeeper Alliance, RE Sources for Sustainable Communities, and Friends ofthe Eatih appealed the permitto the Pollution Control Hearings Board. BP also appealed the NPDES permit onMarch 14, 2012. Both appellants filed Motions for Summary Judgment on several issues. The Boardheard oral argument onthe motions onMarch 21, 2013. Settlement discussions were held with bothparties. 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 onthe motions for summary judgment on July 26, 2013. As a result ofthe settlement agreement and the Board's decision onthe motions for summary judgment, several permit conditions were changed inthe proposedpermitmodification. The proposed changes are discussed inthis fact sheet.

PROPOSED PERMIT 

### CHANGES 1. Monitoring Frequencies at Outfall 001 Permit Condition Sl.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 ofthe monitoring requirement. 

### 2. Monitoring atStormwater Outfalls 002, 003, 004, 005, and 007 TSS monitoring was removed from Permit Condition S1.C.3. Turbidity monitoring is still required to assess thelevels ofsuspended solids in stormwater discharged from the site. 

### 3. Notification ofUntreated Wastewater The wording inPermit Condition S3.E.2.(e) was changedto: "Any wastewater that is not treated in accordance withthe Ecology approved engineering report whether or not such wastewater endangers health or the environment or exceeds any effluent limitation inthe permit." This modification was made to clarify the intent ofthe notification requirement.Fact Sheet Supplement for NPDES PennitNo. 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 ofa process modification which will result in the installation ofnew process units or new equipment in existing process units that could cause material change in the quantity or composition ofthe influent processed by the wastewater treatment system." 

### 5. Submittal of WET TestResults 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 ofthe test". 

### 6. WET TestFailure 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: "Ifany toxicity test conducted under subsection D.1. shows a statistically significant difference inresponse betweenthe ACEC and the control, using the statistical test described in subsection B, then the testresult is a violation ofthe acute limit." 

### 7. 

### Electronic Reporting Permit Conditions S3.A., S7.E.l., and S8.B.l. were revised to require electronic reporting ofmonitoring 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 orderrequiring BP to conduct a herring chronic toxicity study. A number ofchanges from the permit language were agreed to in the herring order: no acute testing, no submittal ofa Toxicity ImplementationPlan, number oftests reduced to six, a study completion date ofMarch 1, 2017, no comparisons to ACEC or CCEC, and comparisons to two additional EPAtests for the larval survival and growth test. 

### 9. SedimentRecharacterization atthe North Pier Permit Condition S11. was revised to: "The Permittee mustrecharacterize sediment toxicity at the NorthPier ifEcology determines that significant spills or accumulation of spills have occurred since the 2006 baseline sediment characterization." This change was made to clarify the intent ofthe 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 ofPermit ConditionSll.D. and other wording from this subsection was moved to Pe1mit Condition Sll.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 ofEcology has tentatively determined to modify the NPDES permit for the BP Cherry Point Refinery. The Department will publish a Public Notice ofDraft (PNOD) on September 4, 2013 inthe Ferndale Recordto informthe 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 betweenthe hours of8:00a.m. and 5:00p.m. weekdays, by appointment, at the Ecology offices listedbelow. Department ofEcology Industrial Section 300 Desmond Drive Lacey, WA 98503 Written comments should be mailed to: LiemNguyen Department ofEcology Industrial Section P.O. Box 47600 Olympia, W A 98504-7600 Comments shouldreference 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 ofthe draft indicated above, in formulating a final determinationto 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 inthis permit.Fact Sheet Supplement for NPDES PetmitNo. 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 1560AMarble Valley Road Blaine, Washington 99101 NPDES PermitNo. WA0022900 December2, 2013 Ecology published notice ofan opportunity to comment onproposed modifications to NPDES PermitNo. WA 002290-0, inthe Ferndale Record on September 4, 2013. The proposed modifications are inresponse to an agreement settling appeals ofthe BP permit and rulings from the Pollution Control Hearings Board (PCHB). Inthe notice, Ecology invited public review of the proposed modifications andprovided a 30-day public commentperiod. The deadline for submittal ofwritten comments was October 7, 2013. Ecology received written comments from two entities. Comments were received from: Beth Ginsberg, Stoel Rives, on behalfofBP Richard Smith, Smith & Lowney, on behalfof Puget Soundkeeper Alliance, RE Sources, and Friends ofthe Earth (collectively "Soundkeeper") We included all ofthe comments received inthis document. The comments were summarized where appropriate, to save time and space. The original comments comprise part ofthe legal record for this permit. The record is available for public review at Ecology's Industrial Section office in Lacey, WA. Anyone interested inreading the full text ofthe comments or in obtaining a copy ofa particular comment should call or e-mail LiemNguyen in Lacey at (360) 407-6955 or liem.nguyen@ecy.wa.gov. Comments appear inregular text, followed by Ecology's response in italicized text. Ecology will send a 

### copy ofthis 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 stormwater monitoring for outfall 003 is still required in Condition S1.E. BP requests that the requirement for TSS stormwater monitoring for outfall 003 be removed from the final modified permit in Condition S1.E. This modification will be consistent with Condition Sl.C.3.Response to Comments NPDES Permit No. WA0022900 December 2, 2013 Page 2 Ecology agreedto remove TSS monitoring atstormwater outfalls 002, 003, 004, 005, and 007 in Condition SJ. 

### C.3 butdidnotagree to remC!ve TSS monitoring at outfalls 003 or 006 in Condition Sl.E. Condition Sl.E. refers to differentsources of stormwater and discharge conditions. 2. Condition S11.D onpage 37 refers to Condition S12.A. and should refer to S11.A. instead. The reference to Condition Sl2.A. was changedto SJJ.A. Comment from Richard Smith (3.) 3. Ecology proposes to modify the acute WET provision ofthe permit, Condition S7, by the addition ofa single sentence at the end ofS 7.D. Soundkeeper submits that this proposed modification is inadequate to comport with either the provisions ofstate 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 oftoxic**substance~** that cause acute toxicity inthe receiving waters. WAC 173-201A-240. This narrative reflects a prohibition in state statute: "Inno 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 ofWETtesting 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 bythe 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, orrational basis for interpretation ofthese state laws and regulations that would allow authorization ofany discharge that fails a WET compliance test. S7 shouldbe rewritten to effect theResponse to Comments NPDES Permit No. WA0022900 December 2, 2013 Page 3 prohibition on toxic discharges by equating any failure ofthe compliance test with violation ofthe acute WET effluent limitation and the permit. Second, even accepting the PCHB's faulty interpretation ofstate law onWET effluent limitations, this proposed modified condition is problematical. The proposed modification would make violation ofthe permit contingent onthe failure ofa follow-up WET test for each regularly**sc~eduled** acute WET compliance test failure. In other words, no failure ofa regularly schedule actue WETtest can constitute a permitviolation unless there is also a failure ofone ofthe follow-up tests. It is unlikely that the PCHB would deem this acceptable since repeated failures ofregularly scheduled WET tests also indicate an ongoing pattern oftoxicity. S7 should clarify that any failure ofany acute WET test following the first failure recorded during the permitterm constitutes a permit violation. In addition, the effect fo the sentence proposed for insertion at the end ofS7.D is unclear. Its final clause, "thenthe test result is a violation ofthe acute limit," is not adequate to clarify that this means "violation ofthe permit" giventhe sloppy use ofterminology in the modified condition. S7.Apurports to define "the effluent limit for acute toxicity." S7.B purports to define "compliance with the effluent limit for acute toxicity." However, failure ofan acute WETtest constituting a violation ofthis"effluent limit" does not mean there is a permit violation. Does the statementproposed to be added to S7.d., "then the testresult is a failure ofthe acute limit," meanthat there is a permit violation? Soundkeeperpoints to the WET limit language that Ecology'sNorthwest Regional Office recently incorporated into NPDES PermitNo. 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 revisedto read 

### "If any toxicity test conducted under subsection D.1. shows a statisticallysignificantdifference in response between the ACECandthe control, using the statistical test described in subsection B, then the test result is a violation of thepermit. The Permittee mustsubmita Toxicity Identification/Reduction Evaluation (TI/RE)plan to Ecology within sixty (60) days after the sample date [WAC 173-205-100(2)]." This change is consistentwith the PCHB 's decision on exceedances ofWETlimitations. The Boarddeferred to Ecology's determination thata single WETlimit exceedance does not indicate apattern of toxicity. Instead, it triggers additional testing aimedatResponse to Comments NPDES PermitNo. WA0022900 December 2, 2013 Page 4 determining 

### if there is continuedtoxicity anda violation of the toxicity standardof the permit. 

## If any of the subsequent testsfail the WETlimit, that test failure is a violation of

. thepermit. Determining 

### if there is ongoing toxicity versus transient toxicity is different than an anomalous WETtest. The issue is notabout the anomalous test language. It is about calling that first noncompliance with the WETlimit a violation. The language in the Seattle Iron andMetals Corporation NP DES permit is notconsistent 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 prioritypollutants listed inAppendix B and Appendix B was replaced with an updated version that more clearly identifies the list ofprioritypollutants.