HomeMy WebLinkAboutMicron Technology, Inc. for Lower Boise River Implementation Plan ChallengeSETTLEMENT AGREEMENT
The parties to this Settlement Agreement ("Agreement") are Micron Technology, Inc.
("Micron"), City of Boise, City of Caldwell, City of Meridian, City of Nampa (the "Cities"), and
the Idaho Department of Environlental Quality ("IDEQ") collectively referred to as the
"Parties."
Recitals
A. Micron filed a Contested Case Petition and Request for Declaratory Ruling before
the Idaho Boazd of Environmental Quality on August 14, 2008 (Docket No. 0102-08-02) (the
"Case") .Micron filed the Case to challenge certain portions of the Lower Boise River
Implementation Plan for Total Phosphorous ("Plan") published by IDEQ in July, 2008 and
alternatively sought an Order from the Board directing that IDEQ reopen the Snake River Hells
Canyon Total Maximum Daily Load ("SR-HC-TMDL") to modify the Boise River phosphorous
tazget in the SR-HC-TMDL;
B. On September 9, 2008, the Cities filed a Petition to intervene in this matter. On
October 6, 2008, the Presiding Officer granted the petition to intervene; and
C. The Parties desire to settle and resolve the Case to avoid protracted litigation.
NOW, THEREFORE, the Parties agree as follows:
1. IDEQ agrees to modify the Plan in accordance with the revisions set forth in
Exhibit A. Within thirty (30) days of the execution of this Agreement by all Parties, IDEQ shall
issue the revised Plan.
2. As set forth in the Plan, given the complete implementation of the allocations in
the Plan, IDEQ has determined that a tazget established at the mouth of the Boise River of less
than or equal to 0.07 mg/L total phosphorus (May through September) cannot be met during
median monthly flow conditions. Based on implementation of the load allocations for nonpoint
sources in the Plan and even with total removal of wastewater effluent dischazges into the River
from all of the Cities, the 0.07mg/L total phosphorous target is not achievable during low flows.
The SR-HC TMDL provides that if the tributary target concentrations can not be practicably
achieved, then the "the Snake River/Hells Canyon TMDLs for total phosphorus ("TP") will be
reopened and appropriately revised".
3. In addition, IDEQ believes that a less than or equal to 0.07 mg/L TP tazget for the
Boise River at Parma may be overly wnservative and unnecessary to achieve the goal of
attainment of water quality standazds in the Snake River because of river dynamics, retention
times and the timing of plant growth. Confirmation of such belief by IDEQ following the
evaluation described in this Ageement will result in IDEQ working with the appropriate
stakeholders and agencies to revise the SR-HC-TMDL.
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4. IDEQ intends to initiate reexamination of the achievability and appropriateness of
the Lower Boise River TP tazget upon the availability of resources and staff with the necessary
technical skills, expertise and abilities and familiarity with and understanding of the facts, data
and science relevant to the development of the SR-HC TMDL and the water quality tazgets
necessary to support beneficial uses. Given existing commitments, priorities, and workload,
IDEQ believes that such resourees and staff will likely be able to begin work on the
reexamination by the spring of 2009. Beginning April 1, 2009, and quarterly thereafter (e.g. July
1, October 1, and January 1) IDEQ will report progress on the reexamination in writing to
Micron and the Cities until a final decision is reached. IDEA expects to complete the
reexamination of, and make a final decision regarding, the TP tazget for the Boise River by the
spring of 2010.
5. Upon publication of a revised final Plan by IDEQ that contains all of the revisions
in Exhibit A, Micron will withdraw its petition for contested case and the Cities will withdraw
their petitions to intervene. Micron and the Cities, however, reserve all legal rights and claims to
bring an appropriate action or refile that portion of the Case requesting the Board to order IDEQ
to reopen the SR-HC-TMDL if IDEQ does not comply with the schedule set forth in this
Agreement, or to, at any time, petition to amend the applicable water quality standards. IDEQ
reserves all defenses to such a case or petition. This Settlement Agreement shall not be a bar nor
a defense to any such refiled action by Micron or the Cities, and this Settlement Agreement shall
not constitute an admission by IDEQ of the validity of any such appropriate action or refiled
action, or evidence of any fact, wrongdoing, or liability on the part of IDEQ, or provide any basis
for any claim or action against IDEQ. Notwithstanding the foregoing, IDEQ agrees that Micron
and the Cities can enforce IDEQ's agreement to revise and issue the Plan and to reexamine the
Boise River target as set forth in paragraphs 1 and 4 of this Settlement Agreement.
6. This Agreement shall be construed and enforced according to the laws of the State
of Idaho.
7. Should any provision of the Agreement be rendered void or invalid by a court or
government agency of competent jurisdiction, the remaining terms of this Agreement shall be
fully enforced to the extent possible to enforce the original intentions of the Parties.
DATED this _ day of November, 2008.
Micron Technology, Inc.
By. ~ e+~s~ ~~UJI/trJ
Its: i n 9 1 r ~~
City of Boise
SETTLEMENT AGREEMENT- 2
Boise-215788.7 OD1935G00173
City of Caldwell
By:
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°oca~yO~ MEl;jp~9~,, City of Meridian
Its:
~.,~"f~~+,.~~r~t~s'.t,• ~~~`.c~ City of Nampa
By:
Idaho Department of Environmental Quality
By:
Its:
APPROVED:
By:
Presiding Officer
SETTLEMENT AGREEMENT- 3
Boise-215788.70019356-00173
Ealubit A
New language for LBR IP:
1. To be inserted on page xxi of the Executive Summary, between the existing 3'a
and 4a' paragraphs:
Given the information discussed in the Plan regarding river dynamics, retention
times, and the timing of algae growth, DEQ believes the allocations and
reductions contained in the Implementation Plan, including the achievement of
0.20 mg/L total phosphorous effluent limits by the W WTFs, are consistent with
the assumptions underlying the SR-HC TMDL and the goal of reducing algae
growth to levels that support beneficial uses in the Snake River. However, EPA
has indicated its belief that the SR-HC TMDL target for the Boise River compels
NPDES Pernuts dischazging to the Boise River to contain a 0.07 mg/L effluent
limit "at end-of-pipe". Therefore, DEQ intends to reexamine the SR-HC TMDL
target for total phosphorus for the Lower Boise River tributary. If DEQ's
reexamination and analysis confirms DEQ's belief that a change in the tazget
should be made, DEQ intends to work with the appropriate stakeholders and
agencies to modify the SR-HC TMDL to reflect the change in the tazget.
2. Replace paragraph 4 on page xxi of the Executive Summary:
It is important to note that the estimation that the TP load reductions specified in
the Plan will attain beneficial uses in the Snake River as well as the estiration of
the cun•ent TP tazget at Parma relies on a variety of the best available data
sources, numerous assumptions, and margins of safety. Future monitoring will
determine the status of beneficial use support. Because this information is based
on the best information today, which maybe different in the future, an adaptive
management approach is necessary. The following factors and uncertainties also
affect establishing an appropriate TP tazget for the Lower Boise River and will be
considered during DEQ's reexamination of the Lower Boise River target:
3. Page xxii, paragraph 7, add last sentence:
ht light of the foregoing, IDEQ believes the Lower Boise River tazget maybe
overly conservative and intends to reexamine the Lower Boise River tazget.
4. Page 1, Section 1.1 Insert new (Sa') last paragaph:
EPA has indicated its belief that the SR-HC TMDL tazget for the Boise River
compels NPDES Permits discharging to the Boise River to contain 0.07 mg/L
effluent limits "at end-of-pipe". In light of the Plan, DEQ believes such effluent
limits are overly stringent and unnecessary to achieve the goal of attainment of
water quality standazds in the Snake River because of river dynamics, retention
times and the timing of plant gowth. Thus DEQ intends to reexamine the Lower
Boise River TP tazget. If DEQ's reexamination and analysis confirms DEQ's
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belief that a change in the target should be made, DEQ intends to work with the
appropriate stakeholders and agencies to modify the SR-HC TMDL to reflect the
change in the target.
Change the language on page 33 beginning with the sewnd sentence as follows:
Based on projected nonpoint source loads after full implementation and land use
conversion and with total removal of wastewater effluents from the river, a less
than or equal to target concentration of 0.07 mg/L total phosphorous in the Boise
River at Parma is not achievable during low flow scenarios such as these, though
TP loads to the Snake River would be expected to be significantly reduced during
low flows. The use of low flow conditions, however, may not reflect critical flow
conditions relative to nuisance aquatic growth in the Snake River. Idaho and
Oregon DEQs determined that low flow conditions did not consistently drive the
poorest water quality conditions in the Snake River as much as average flow
conditions. For this reason, in the SR-HC TMDL, the DEQs used average flows
to describe allocations. Therefore, the success of the reductions in the
Implementation Plan in achieving beneficial use support in the Snake River
cannot be judged solely by low flow conditions. DEQ's reexamination of the
Lower Boise TP target wilt include consideration of flow conditions relative to
nuisance aquatic growth.
As seen in Table 8, when loads are based on mean flows, a seasonal average
concentration of 0.07 mg/L in the Boise River at Parma is achievable....
Total phosphorus TMDLs, based on an average TP target, have been approved by
EPA Region 10 for the following watersheds: Mid Snake River (0.075 mg/L),
Portneuf River (0.075 mg/L). Blackfoot River (0.075 mg/L), Bear River (0.050
mg/L), Lake Walcott (0.080 mg/L), Big Wood River (0.05 mg/L), Cascade
Reservoir (0.025 mg/L), and the Snake River: King Hill to CJ Strike (0.075
mg/L). One reason for this is that plant growth, including macrophytes, do not
respond to instantaneous or a daily maximum phosphorus concentration, rather
plant growth is reflective of average phosphorus concentrations over the life of
the plant.
Based on known river dynamics, including assimilation, distance, and detention
time in Brownlee Reservoir, the scenario represented in Table 8 will improve
water quality in the Snake River and the reservoir.
6. Insert the following language after the first full sentence of section 5.3 on page
34:
Given the information discussed above regazding river dynamics, retention times,
and the timing of algae growth, DEQ believes the allocations and reductions
contained in the Implementation Plan, including the achievement of 0.20 mg/L
total phosphorous effluent limits by the W WTFs, aze consistent with the
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assumptions underlying the SR-HC TMDL and the goal of reducing algae growth
to levels that support beneficial uses in the Snake River. However, as noted in
Section I, DEQ believes the SR-HC TMDL tazget for the Boise River needs to be
reexamined, and if necessary, modified to clarify this issue.
7. Change the language on page 37, second sentence, second full paragraph as
follows:
Given the complexity of the watershed (under existing and future conditions),
given the load at complete implementation of controls on point and nonpoint
sources, it has been determined that it is not possible to meet the SR-HC TMDL
concentration target for TP under certain low flow scenarios. As discussed above,
however, low flow conditions may not reflect critical conditions for nuisance
aquatic gowth in the Snake River, and therefore cannot alone be used to judge
the success of the Implementation Plan in supporting beneficial uses in the Snake
River. As seen in previous tables and text, when loads aze based on mean flows, a
seasonal average concentration of 0.07 mgJL in the Boise River at Parana is
attainable. DEQ believes attainment of a seasonal average concentration of 0.07
mg/L is consistent with the assumptions underlying the SR-HC TMDL and the
goal of reducing algae growth to levels that support beneficial uses in the Snake
River. Future monitoring will determine the status of beneficial use support.
Because this information is based on the best information today, which maybe
different in the future, an adaptive management approach is necessary.
xr*
Revise 2°d paragraph of section 5.4.2.1 on page 37:
Permit limits based on WLAs will be mass-based defined by the effluent concentration
target in the Plan and the facility design discharge for the applicable permit cycle. If
permit limits are to be applied to any period other than seasonal (e.g., monthly), the
seasonal limit will be translated to other periods using appropriate statistical guidance.
8. Change the language on page 50 under the heading Trading Framework in section
6.5.4: Delete the first sentence and replace it with:
It is currently DEQ policy to allow pollutant trading to meet TMDLs.
9. Add at the end of the pazagraph under Trading Framework in section 6.5.4 the
following new language:
The SR-HC TMDL encourages pollutant trading and provides that the Lower
Boise River trading framework should be modified for the SR-HC TMDL
process. The SR-HC TMDL states that pollutant trades could occur either in the
SR-HC watershed or on any of the tributaries to the SR-HC watershed. As noted
above, a pollutant trading framework already exists for the Lower Boise River.
http://www.deq.state.id.us/water/pmg_issues/waste_water/pollutant_trading/overv
iew.cfm
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