transparent bias, conflict with the scientific evidence and lack of objectivity.        DEQ admits, “DEQ has never asserte...
utterly failed to carry its burden of proof on the “economic benefit” element of thepenalties. Although we will provide an...
DEQ has not made any effort to offer a scientific explanation of the significanceof a 5.82 BOD in some unknown seep or see...
food-processing plants; failing septic systems; and urban stormwater runoff.” Id. Ms.Williams was therefore in error. That...
Respondents “should have incurred” (Notice of Assessment, Ex. 4, p. 2). Althoughthere is a general overview of the BEN mod...
performed by Ferguson, Kirby,         Tr. 265), CES $30,200 (Ex. R53* CES, WRG and Lavielle (leak           includes some ...
(Vol. 2 Tr. 242:1-5)) $150,000 (Ex. 4 to Notice of Assessment,          $52,000 upper (Vol. 2 Tr.   $95,500 p. 2) Liner re...
support this amount. Instead, the testimony of Ms. Williams was offered without anyfoundation establishing any knowledge o...
D.     Selected Elements of Alleged Violations             1.     Violation 1, Discharging Waste      This violation simpl...
constructed. Even if that statement were true (and it is not), DEQ cannot shift theburden of proof to Respondents. If DEQ ...
DEQ was unable to convince Judge Reynolds that the lagoons were leaking (Ex.A90). Despite his order to require “ceasing al...
Respondents could have discovered the broken pipe earlier in the exercise ofreasonable care (a negligence standard), much ...
(Notice of Assessment, Ex. 2, p. 1). DEQ reasons that they are within ten years of2002. This element should be disregarded...
not due to a lack of effort, it was due to logistics, necessity and impossibility.              4.     Violation 4, Wastes...
5.2   Dissolved Oxygen and Biochemical Oxygen Demand I Monitoring & Assessment I US EPA                                   ...
5.2 Dissolved Oxygen   and Biochemical Oxygen Demand I Monitoring & Assessment I US EPA                                   ...
5.2   Dissolved Oxygen and Biochemical Oxygen Demand I Monitoring & Assessment I US EPA                                   ...
5.2   Dissolved Oxygen and Biochemical Oxygen Demand I Monitoring & Assessment I US EPA                                   ...
Dissolved Oxygen and Biochemical Oxygen Demand I Monitoring & Assessment I US EPA5.2                                      ...
5.2   Dissolved Oxygen and Biochemical Oxygen Demand I Monitoring & Assessment I US EPA                                   ...
5.2   Dissolved Oxygen and Biochemical Oxygen Demand I Monitoring & Assessment I US EPA                                   ...
Closing Argument Answering Brief Lehman Hot Springs
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Closing Argument Answering Brief Lehman Hot Springs


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This is the Closing Arguments and Answering Brief for Lehman Hot Springs, LLC and Lehman Development Corp regarding the Oregon Dept of Environmental Quality "civil" penalty Administrative Hearing. The brief was submitted by Montgomery Cobb as attorney for Respondent's Lehman Hot Springs, LLC and Lehman Development Corporation. Respondent John Patrick Lucas filed his own brief and incorporated the arguments outlined in this response.
While this whole fiasco is far from over (it could go on for several more years, depending on the outcome of this hearing) it is somewhat comforting to have the State of Oregon admit in their brief that "DEQ has never asserted a violation of water
quality standards, or that Respondents actually caused pollution" In fact they did make this assertion many times and this is yet one more statement that is factually incorrect. Maybe it's just human nature that if you can hide behind Sovereign Immunity you lose your moral compass? Absolute power corrupts absolutely. I will be posting a full chronology with supporting exhibits soon.

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Closing Argument Answering Brief Lehman Hot Springs

  1. 1. BEFORE THE ENVIRONMENTAL QUALITY COMMISSION STATE OF OREGON IN THE MATTER OF: CLOSING ARGUMENT - ANSWERING BRIEF OF RESPONDENTS LEHMAN JOHN PATRICK LUCAS, LEHMAN HOT SPRINGS and LEHMAN DEVELOPMENT CORPORATION, DEVELOPMENT and LEHMAN HOT SPRINGS, LLC, OAH Case No. 1002077 DEQ Case No. WQ/D-ER-09-082 Respondents CREDENCE Remarkably, DEQ still insists on the full $532,275 assessed penalty, despite theevidence. DEQ has not even given Respondents credit for the moneys paid andevidenced by the financial records in the exhibits, despite Ms. Williams’ testimony thatRespondents would be given credit for any amounts they could show were paid (Vol 1Tr. 204:5-6; 206:17-20; 268:4-8). Nor has DEQ made any adjustment for the costestimates provided by Respondents’ far more qualified expert developer, despite Ms.Williams admission that her numbers were not intended to be representative, and werejust “examples” (Vol. 1 Tr., 204:1-6; 205:10-22). She had contemplated that thesenumbers would be adjusted when Respondents submitted different numbers (Vol. 1 Tr.,204:1-6, 11-12; 205:10-22). Regardless of the merits of the arguments on the other issues, DEQ’s failure togive these obvious credits emphasizes Respondents’ assertion on opening brief thatDEQ’s arguments and evidence must receive heightened scrutiny due to their 1
  2. 2. transparent bias, conflict with the scientific evidence and lack of objectivity. DEQ admits, “DEQ has never asserted a violation of water quality standards, orthat Respondents actually caused pollution” (DEQ Open. Br. at 3). DEQ neverthelessuses such terms as “major,” “significant adverse impact on the environment,” “reckless,”“flagrantly,” and the like in describing the alleged violations. DEQ seeks more than a half million dollars in a case in which the lagoonsoverfilled due to infiltration of ground water and snow melt runoff and in which nopollution occurred. DEQ’s punitive action in this case contrasts tellingly with its $9,600(yes that’s less than $10,000) “enforcement” against J. R. Simplot, “one of the world’slargest frozen potato processors” (Ex. R52), after J. R. Simplot’s dike breached and itspilled 80 million gallons of wastewater, which by DEQ’s admission spilled into anirrigation canal, ran across Highway 207, flowed into the Butter Creek bed which runsinto the Umatilla River, contaminated drinking water wells and caused “considerableerosion” (Ex. R52). There is no rational relationship between DEQ’s admission in thiscase that Respondents caused no pollution, and the assessed penalties. DEQ’spunitive action in this case is not proportional and is a misuse of its authority. DEQ’s conduct is damning evidence of its bias and lack of credibility in thiscase. POINTS This brief does not attempt to address every point in DEQ’s opening brief, asmost of them are covered in our opening brief. A. “Economic Benefit” DEQ’s failure to fairly address the evidence also emphasizes that DEQ has 2
  3. 3. utterly failed to carry its burden of proof on the “economic benefit” element of thepenalties. Although we will provide an accounting analysis1 in this brief, the just andproper resolution is to set aside all of the economic benefit amounts claimed by DEQbecause it has not even made a reasonable attempt to prove the actual amounts due.Neither the parties nor the ALJ should have to analyze an accounting when DEQ hasnot so much as attempted an objective analysis and seems to ignore evidence solelybecause it was presented by the other side. DEQ’s proof of “economic benefit” torespondents is nothing more than guesses, conjecture and estimates by a witness notqualified to estimate. DEQ has simply failed to carry its burden to prove thatRespondents enjoyed an economic benefit from the most “expensive” violations. B. BOD (Biochemical Oxygen Demand) DEQ clings to a single water sample from a single location on a single day withan allegedly elevated BOD as evidence of sewage leaking from the lagoons (DEQOpen. Br. at 3). Significantly, DEQ is reduced to citing Respondents’ exhibit for thatpoint. DEQ has not seen fit to offer any scientific evidence of sewage present in anywater any where on the site. Even more significantly, Ex. R31 does not show thelocation from which the “Seeps” sample was taken. DEQ has not offered any evidencethat this level is above or below any threshold or any standard. Without anyinformation as to the location of the source of the sample, it is meaningless and mustbe disregarded. Even if the location can be determined, it is only one of the seeps,posing the question: if only one seep had a slightly elevated BOD, and none of theothers did, how can this be evidence that the lagoons were leaking sewage? 1 Elements of the penalty assessments are discussed beginning at p. 5. 3
  4. 4. DEQ has not made any effort to offer a scientific explanation of the significanceof a 5.82 BOD in some unknown seep or seeps. Ex. R31 is an EPA document. EPAdoes have standards and publishes instructions and information governing BODsampling and BOD results. In its publication, “Water: Monitoring and Assessment,” §5.2, EPA (highlighted copy attached as App. 1) instructs: “Confirm that you are at theproper location. The directions for sampling should provide specific information aboutthe exact point in the stream from which you are to sample; e.g., ‘approximately 6 feetout from the large boulder downstream from the west side of the bridge.’ If you are notsure you are in the exact spot, record a detailed description of where you took thesample so that it can be compared to the actual site later.” EPA also instructs that samplesmust be taken in a container that is fully submerged in the water being sampled toeliminate air from the sampling container. Id.3 There is no evidence in the record thatthis is possible in the extremely shallow seeps. DEQ has also failed to eliminate causes of BOD other than sewage. Ms.Williams testified that she knew of no sources of BOD other than sewage and didnothing to determine the source of the BOD (Vol. 1 Tr. 252:16-253:11). But EPA says,“Sources of BOD include leaves and woody debris; dead plants and animals; animalmanure; effluents from pulp and paper mills, wastewater treatment plants, feedlots, and 2 Ms. Williams mistakenly remembered it as “80" (Vol. 1 Tr. 252), furtherillustrating DEQ’s utter disregard for the science in this case. It was not interested inoffering the findings, explaining them or getting it right. 3 Note that the sampling techniques for BOD are the same as for DO, but with anadditional step (App., p. 6). 4
  5. 5. food-processing plants; failing septic systems; and urban stormwater runoff.” Id. Ms.Williams was therefore in error. That lack of knowledge and the absence of evidenceeliminating sources of BOD other than sewage is fatal to the BOD evidence. Mr.O’Gara, the hydrologist, however, testified consistently with the science when he saidthat animal waste resulted in increased BOD (Vol. 2 Tr. 212:7-16). There is no evidence in the record that a BOD of 5.8 mg/l is elevated orindicates the presence of sewage. There are no baseline data from the naturallyoccurring springs to show that the seep was any different in BOD than the others.There is no reference to a standard. Sources of BOD other than sewage were notaddressed, much less excluded. C. Economic Benefit Accounting This portion of the brief addresses only the economic benefit element of threealleged violations. This discussion is in the alternative to Respondents’ otherarguments and is not an admission or acknowledgment that a violation occurred. 1. Violation 4: placing wastes where likely to escape DEQ added $161,658 to its penalty assessment for “economic benefit” because,DEQ says, Respondents enjoyed the benefit of not paying for “costs of repair” requiredfor compliance (Ex. 4 to Notice of Assessment). DEQ added $150,777 to the penaltyassessment for the supposed economic benefit of failing to pay water removal anddisposal costs (Id.). The total economic benefit assessed for this violation is $312,435,more than half (58%) of the total penalties assessed. DEQ offered no competent evidence to support the economic benefitassessment. DEQ has not explained its calculations, which assess less than the costs 5
  6. 6. Respondents “should have incurred” (Notice of Assessment, Ex. 4, p. 2). Althoughthere is a general overview of the BEN model in Ex. A85, it does not explain the basesfor the estimates input into the model, nor does it adequately explain how the finalfigure for each penalty item is derived. Without that information, it is impossible to trulycalculate the impact of Respondent’s actual payments or the impact of the revisions tothe estimated cost values. DEQ didn’t bother to consider the cost data submitted byRespondents, much less run its model with those data. DEQ completely ignored theextensive work done, giving Respondents zero credit for the extensive studies of theliners, dikes and testing for leaks in the liners, zero credit for pumping and haulingmore than a half million gallons of water (not to mention the hundreds of thousands ofgallons removed by land application (spray irrigation), for a total of about 1.2 milliongallons removed (See, Vol. 2 Tr. 258-259), zero credit for the full repair of the sewercollector line. This is an act of bad faith. It is capricious. DEQ should not be rewardedfor forcing Respondents and the OAH to examine and deal with these false numbersand assertions. The entire amount should be set aside for all these reasons. Alternatively, the amount should be reduced by the amounts of costs actuallyincurred and by the difference between DEQ’s guesstimate and the values estimatedby Respondents’ better qualified expert: Amounts Incurred Assessed Cost Item Actual Amount Remaining $25,000 (Ex.4 to Notice of “close to $40,000" (Vol. 2 Tr. $0.00 Assessment, p. 2) Engineering 244), including Ferguson (Vol. 2 Evaluation & plans for Dikes and Tr. 243), LaVielle $4,800 (Vol. 2 Liners. This was actually Tr. 243; Ex. R23), Kirby (Vol. 2 6
  7. 7. performed by Ferguson, Kirby, Tr. 265), CES $30,200 (Ex. R53* CES, WRG and Lavielle (leak includes some other items; Ex. 42 testing and other work is included pp. 10-12 ($19,586 of the because the engineers included $30,200), Ferguson $2740 (Ex. that information in their 42, pp. 13-17), Kirby Engineering evaluations of the dikes and (Ex. R28 these amounts are not liners) (Vol. 2 Tr. 243-244). included in our calculation because it is not clear that the sewer line repairs are included in the EB calculation of the assessment, but they total about $20,000, see pp. 1 and 38), WRG unknown amount (Vol. 2 Tr. 244) $243,000 (Ex. 4 to Notice of $86,834 (Ex. 40 pumping & N/A Assessment, p. 2) Water actually hauling invoices & receipts), removed and disposed of as of $13,872 (Ex. 42, pp. 6, 7 Baker loss of property (527,000 gallons tank rental), or more, see Ex. R12) Finish Water Removal and $70,000 (Vol. 2 Tr. 245-246 $0.00 (all Disposal based on new owner’s actual). done) Respondent Lucas is obligated to pay this amount (Vol. 2 Tr. 245:15:23) therefore it is not “avoided.”*It is not clear that this exhibit R53 (CES contract) was offered and received, althoughRespondents intended to include it. If it is not of record, please disregard it and see Ex.R42, pp. 10-12 totaling $19,586.Estimated Values Assessed Cost Item Accurate Cost Estimate Difference $50,000 (Ex. 4 to Notice of Assessment, $0.00 Not required (Vol. 2 $50,000 p. 2) Dike Repair Tr. 174-180) and not possible (Vol. 2 Tr. 237- 241) $3600 (Ex. 4 to Notice of Assessment, p. $0.00 Not required (no $3600 2) Manhole locking lids evidence of any such requirement in record) (but actually done by subsequent owner for “a couple thousand” dollars 7
  8. 8. (Vol. 2 Tr. 242:1-5)) $150,000 (Ex. 4 to Notice of Assessment, $52,000 upper (Vol. 2 Tr. $95,500 p. 2) Liner replacement (upper lagoon) 235:6-25), $2500 lower and repair (lower lagoon) (Vol. 2 Tr. 236:1-13). TOTAL DIFFERENCE $149,100 Applying these numbers, Respondents have paid or incurred the liability for theentire cost of removing the water from the lagoons and they have been emptied by thesubsequent owner. The $150,777 assessed should therefore be reduced to zero.Respondents have paid more than the $25,000 assessed for engineering evaluationsand plans. That amount should be reduced to zero. The $150,000 assessed for repairof the liners should be reduced to $54,000 ($52,000 to replace the upper lagoon linerand $2500 to repair the lower lagoon liner). The $50,000 assessed for repairing thedikes should be reduced to zero because the evidence is that no repair is needed andthat the repair DEQ has authorized is not possible due to setback and other issues(Vol. 2 Tr. 237-241). The $3,600 assessed for manhole locking lids should be reducedto zero because DEQ presented no evidence whatsoever of any such requirement orthat locking lids were necessary for any purpose. After these adjustments, the amount Respondents “should have incurred” usingDEQ’s theory, is $54,500. DEQ has offered insufficient information to apply the BENformulation to that amount. It should therefore be disregarded. No EB amount forviolation 4 is ascertainable on this record. 2. Violation 3, No certified operator DEQ assessed an EB value of $18,673 based on its estimate of $21,060 peryear wages to employ a certified operator. But DEQ offered no reliable evidence to 8
  9. 9. support this amount. Instead, the testimony of Ms. Williams was offered without anyfoundation establishing any knowledge or experience with paying certified operators(Vol. 1 Tr. 178). Mr. Lucas, based on his actual experience hiring and paying certifiedoperators, testified that the total compensation for a certified operator for the 13 weeksis $1500 at one site visit per month (Vol. 2 Tr. 230-231, 232). The base assessedamount should be reduced to $1500. DEQ has offered insufficient information to applythe BEN formulation to that amount. It should therefore be disregarded. No EB amountfor violation 3 is ascertainable on this record. 3. Violation 2, Operating without a permit DEQ’s assessment ignores the application fee and the permit fees that werepaid, including the $3190 application fee (Vol. 2, Tr. 233:2-6), and annual renewal feesof $700 per year through 2008 as part of a settlement (Vol. 2, Tr. 233-234). Althoughthe application fee was refunded more than five years after it was paid (Vol. 2 Tr.233:7-10), the BEN formulation fails to take this into account in analyzing the timevalue of money, as it supposedly does (Ex. A85, memo at p. 3). BEN couldn’t take itinto account because the human operators at DEQ didn’t tell it to. There is no mentionthat any fees were ever paid by Respondents. Although Ms. Williams seemedgenuinely ignorant of the settlement payment, there is no excuse for not accounting forthe application fee. This is an act of bad faith rendering this assessment capricious.The entire assessment should be set aside. Any other result will tell DEQ it can getaway with abusing its power. 9
  10. 10. D. Selected Elements of Alleged Violations 1. Violation 1, Discharging Waste This violation simply didn’t happen. Comparing DEQ’s opening brief withRespondents’ opening briefs, the state of the argument can clearly be summarized.DEQ relies on the status of its experts and mere observation to attempt to contradictthe scientific evidence and overcome the dearth of scientific evidence to support thenotion that the seeps and runoff contained sewage. Not one test shows that the seepsor runoff contained sewage. In fact the testing shows they did not. If the seeps andrunoff did not contain sewage, there was no discharge of waste. Similarly, there is noreliable evidence that the liners leaked. DEQ’s experts thought they did, but failed toinspect them after the lagoons were empty. In contrast, Respondents’ experts testified conducted tests and relied on thescientific evidence in formulating their opinions. Respondents’ experts testifiedconsistently with the scientific evidence, not contrary to it. Respondents expertswalked the liners of the empty lagoons. Respondents’ experts could find no leaks andno sewage in any seeps or runoff. Respondents’ experts’ testimony is also consistentwith the physical evidence. The presence of water under the lower lagoon linerstrongly supports Respondents’ evidence that the lagoons did not leak and that therewere sources of water other than the lagoons during the spring snow melt and seasonalhigh ground water levels. The waning of the seep “flows” during dry weather andseasonally is also consistent with a source other than the lagoons which, until theywere emptied, held hundreds of thousands of gallons of water. DEQ argues there “is no credible evidence” that the lower lagoon was properly 10
  11. 11. constructed. Even if that statement were true (and it is not), DEQ cannot shift theburden of proof to Respondents. If DEQ believes the lower lagoon was not properlyconstructed, it has the burden to prove it. The evidence, however, from the witnesseswho were there and who actually tested and analyzed the structure was:• that the lower lagoon was built in lifts with the proper compaction,• that the larger rocks were tossed outside the berms, leaving a soft bed for the liner,• that a vibrating sheepsfoot roller was used for the compaction,• that the berms had not settled,• that a 700 point topographical survey compared with the as-built drawings showed that the berms were stable, and• that a lateral stability analysis showed that the berms were stable. To arrive at his opinions that the berms were unstable and that the liners wereleaking, Mr. Norris had to ignore every bit of evidence just listed, and:• ignore the evaporation leak study,• ignore the negative dye test,• ignore the negative e coli tests, and• ignore the observations of Mr. O’gara and Mr. Ferguson who actually walked the empty lagoons and inspected the fully exposed liners for holes.Mr. Norris’ imprecise testimony, such as, there were “a lot” of holes (DEQ Open. Br., p.8) illustrates this disregard for accurate analysis. But Mr. Norris is the State Engineer. That status, however, is no match forscience and facts. 11
  12. 12. DEQ was unable to convince Judge Reynolds that the lagoons were leaking (Ex.A90). Despite his order to require “ceasing all discharges,” he refused to order anycleanup, did not require fencing off, did not order that the lower lagoon be emptied (Id.).The order to cease all discharges is no different from an order to “obey all laws.” Itdoes not mean there were discharges, especially not in October, when the order wasissued. DEQ had requested an order requiring Respondents to remove the lagoonsand clean up the site. The denial of that request suggests that the judge did not findthe dire emergency that DEQ pitched to him. Magnitude. If there was a discharge, it was so insignificant that it caused nopollution. DEQ now admits (DEQ Open. Br. at 3) that there was no pollution. None.Zero. At the time the overfilling was discovered, Respondents had a permit by virtue ofits pending application and DEQ had told Respondents’ engineer that the applicationwas “active and complete” in 2007 (Ex. 43). The application was not revoked until morethan a month after the 2009 overfilling incident (Ex. R9, R43). DEQ cannot now beheard to argue that the lack of a permit was a factor aggravating the magnitude of thisalleged violation. Mental state. DEQ says Respondents were “reckless” because they did notdraw down the wastewater levels “promptly and sufficiently.” This allegation is silly. Itis silly because the truth is exactly the opposite. The herculean effort in response tothe overfilling is documented in Exs. R28, R12, R16, R34 and R47. The overfilling wascaused by snow melt and runoff and a broken pipe buried underground (Vol. 2 Tr. 112-114, 116, 117). Respondents were not reckless in discovering the problem (Id.). Theywere not diligent in speeding to the scene (Vol. 2 Tr. 115, ). There is no evidence that 12
  13. 13. Respondents could have discovered the broken pipe earlier in the exercise ofreasonable care (a negligence standard), much less any evidence of recklessness.Respondents acted diligently and hurriedly to rectify both the cause and the waterlevels in the lagoons (Exs. R28, R34, R47; Vol. 2 Tr. 112-124, ). Respondents’ inabilityto finish removing the water from the lagoons was due to their lack of financialresources (Vol. 2, Tr. 105-106, 244, 263-264), not due to a reckless mental state. Additionally, any failure to promptly and sufficiently draw down the water levelsis not properly applied in the mental state element. It is more properly relevant to the“C” element discussed immediately below. Applying it to the mental state element isduplicative and penalizes Respondents twice for the same act or failure to act. Effort to correct. DEQ says Respondents did not adequately address theviolation. The evidence is to the contrary (Exs. R28, R12, R16, R34 and R47), exceptthat Respondents ran out of money before the lagoons were empty (Vol. 2, Tr. 105-106244, 263-264). 2. Violation 2, Operating Without a Permit Respondent Lehman Development Corporation is the only Respondent with anobligation to have a permit (Vol. 1, Tr. 205:5-9). This violation should be set aside as toRespondents Lehman Hot Springs and Lucas. Prior significant actions. DEQ repeatedly states that Respondents did nothave a permit from 2002 forward. But DEQ treated the pending 2004 application as apermit and did not revoke it until May of 2009 (Ex. R9; see also R39, R43 and R44).Now, DEQ attempts to bootstrap violations which were noticed as much as 15 yearsprior to the notice of assessment as “prior significant actions issued within ten years” 13
  14. 14. (Notice of Assessment, Ex. 2, p. 1). DEQ reasons that they are within ten years of2002. This element should be disregarded due to DEQ too clever disingenuity.4 Mental state. DEQ calls this violation flagrant because “Respondents continuedto operate the system for seven years without a permit...” (Id.). This is too clever toreceive the imprimatur of adjudicated approval. DEQ obviously believed RespondentLehman Development had a permit from 2004 to 2009 and acted accordingly. DEQtreats pending applications as permits all the time and does not penalize operatorsunder that circumstance (Ex. R4). 3. Violation 3, no Certified Operator after Feb. 3, 2009 Respondents concede that they had no certified operator on the specified dates. Mental state. DEQ claims Respondents acted “flagrantly” because there weremultiple citations for failing to have a certified operator and continued after Feb. 3,2009 to operate without one. The system was plugged and not operating after April 15,2009. There was nothing to operate. No operator was required after that time. (This isdistinguished from having a facility with waste in it requiring a permit because anoperator does something; a facility simply exists.) Respondents continually soughtcertified operators which were very difficult to recruit (Vol. 2 Tr. 232) to this very remotelocation with very adverse weather during the winter. After DEQ began its campaign ofpress releases, very difficult became impossible. The failure to have a certifiedoperator was not due to flagrant disregard for the rules, it was due to necessity andimpossibility. Effort to correct. Respondent’s failure to find certified operators at times was 4 This word may not be in Merriam-Webster but it should be. 14
  15. 15. not due to a lack of effort, it was due to logistics, necessity and impossibility. 4. Violation 4, Wastes Placed where Likely to Escape. ORS 468B.025(1)(a) and the corresponding regulations are so vague as to beunenforceable. It is so overbroad that it would find everyday activities to be a violation.There are no standards setting any thresholds. The word “placing” could meananything from urinating to dumping a billion barrels of crude oil into the ocean. “Likelyto escape” is impossible to adjudicate. If “likely” means more probable than not, then ifit doesn’t happen more often than not, it isn’t likely. This statute is a gotcha tailored forarbitrary enforcement because anyone could be found in violation at any time. Whenfilling a car with gas, pollution is likely to escape. When emptying the potty at acampsite, waste is likely to escape. If a deer jumps into a sewer lagoon and thenclimbs out dripping sewage, waste is likely to escape. Transporting wastes in a truck ormotorhome is placing them where they are likely to escape. Letting the dog defecate inthe back yard is placing waste where it is likely to escape, in fact, it is escaping at themoment the dog is allowed or encouraged to do his business. Emptying a boat or RVholding tank almost always risks a splash or two of the yucky stuff; wastes are likely toescape. These vagaries, combined with DEQ’s zero discharge (not even a drop) stance,make this standard so meaningless that it is unenforceable. The ALJ should decline toenforce it until DEQ enacts sensible regulations providing meaningful definitions thatcan be applied in a consistent way to fact patterns. Here, no wastes escaped. They stayed within the lagoon berms. Respondentstook no action that made the wastes likely to escape. Rather, nature melted snow and 15
  16. 16. 5.2 Dissolved Oxygen and Biochemical Oxygen Demand I Monitoring & Assessment I US EPA App. 1 You are here: Water»Our Waters» Rivers & Streams» Monitoring & Assessment»5.2 Dissolved Oxygen and Biochemical Oxygen Demand 5.2 Dissolved Oxygen and Biochemical Oxygen Demand What is dissolved oxygen and why is it important? The stream system both produces and consumes oxygen. It gains oxygen from the atmosphere and from plants as a result of photosynthesis. Running water, because of its churning, dissolves more oxygen than still water, such as that in a reservoir behind a dam. Respiration by aquatic animals, decomposition, and various chemical reactions consume oxygen. Wastewater from sewage treatment plants often contains organic materials that are decomposed by microorganisms, which use oxygen in the process. (The amourt of oxygen consumed by these organisms in breaking down the waste is known as the biochemical oxygen demand or BOD. A discussion of BOD and how to monitor it is included at the end of this section.) Other sources of oxygen-consuming waste include stormwater runoff from farmland or urban streets, feedlots, and failing septic systems. Oxygen is measured in its dissolved form as dissolved oxygen (DO). If more oxygen is consumed than is produced, dissolved oxygen levels decline and some sensitive animals may move away, weaken or die. , DO levels fluctuate seasonally and over a 24-hour period. They vary with water temperature and altitude. Cold water holds more oxygen than warm water (Table 5.3) and water holds less oxygen at higher altitudes. Thermal discharges, such as water used to cool machinery in a manufacturing plant or a power plant, raise the temperature of water and lower its oxygen content. Aquatic animals are most vulnerable to lowered DO levels in the early morning on hot summer days when stream flows are low, water temperatures are high, and aquatic plants have not been producing oxygen since sunset. Sampling and Equipment Considerations Ifemperature DO Temperature DO �fable 5.3 (C) (mg/1) C) (mg/1) In contrast to lakes, where DO levels are most likely to vary 0 14.60 23 8.56 Maximum vertically in the water column, the DO in rivers and streams 1 14.19 24 8.40 dissolved changes more horizontally along the course of the waterway. This 2 13.81 25 8.24 oxygen is especially true in smaller, shallower streams. In larger, deeper concentrates 3 13.44 26 8.09 rivers, some vertical stratification of dissolved oxygen might occur ary with 4 13.09 27 7.95 The DO levels in and below riffle areas, waterfalls, or dam temperature 5 12.75 28 7.81 spillways are typically higher than those in pools and slower­ 6 12.43 29 7.67 moving stretches. If you wanted to measure the effect of a dam, it 7 12.12 30 7.54 would be important to sample for DO behind the dam, 8 11.83 31 7.41 immediately below the spillway, and upstream of the dam. Since DO levels are critical to fish, a good place to sample is in the pools 9 11.55 32 7.28 that fish tend to favor or in the spawning areas they use. 10 11.27 33 7.16 11 11.01 34 7.16 An hourly time profile of DO levels at a sampling site is a valuable 12 10. 76 35 6.93 set of data because it shows the change in DO levels from the low 13 10.52 36 6.82 po int just before sunrise to the high point sometime in the midday 14 10.29 37 6.71 However, this might not be practical for a volunteer monitoring 15 10.07 38 6.61 program. It is important to note the time of your DO sampling to 16 9.85 39 6.5 1 help judge when in the daily cycle the data were collected. 17 9. 65 40 6.41 18 9.45 41 6.41 DO is measured either in milligrams per liter (mg/L) or "percent 19 9.26 42 6.22 saturation." Milligrams per liter is the amount of oxygen in a liter 20 9.07 43 6.13 of water. Percent saturation is t h e amount of oxygen in a liter of 21 8.90 44 6.04 water relative to the total amount of oxygen that the water can 22 8.72 45 5.95 hold at that temperature. DO samples are collected using a special BOD bottle: a glass bottle with a "turtleneck" and a ground glass stopper.http://water.epa .gov/type/rsVmonitoringlvms5 2.clin[ 10/10/2012 6:59:0I PM]
  17. 17. 5.2 Dissolved Oxygen and Biochemical Oxygen Demand I Monitoring & Assessment I US EPA App. 2 You can fill the bottle directly in the stream if the stream is wadable or boatable, or you can use a sampler that is dropped from a bridge or boat into water deep enough to submerse the sampler. Samplers can be made or purchased. Dissolved oxygen is measured primarily either by using some variation of the Winkler method or by using a meter and probe. Winkler Method The Winkler method involves filling a sample bottle completely with water (no air is left to bias the test). The dissolved oxygen is then "fixed" using a series of reagents that form an acid compound that is titrated. Titration involves the drop-by-drop addition of a reag1ent that neutralizes the acid compound and causes a change in the color of the solution. The point at which the color changes is the "endpoint" and is equivalent to the amount of oxygen dissolved in the sample. The sample is usually fixed and titrated in the field at the sample site. It is possible, however, to prepare the sample in the field and deliver it to a lab for titratio n. Dissolved oxygen field kits using the Winkler method are relatively inexpensive, especially compared to a meter and probe. Field kits run between $3 5 and $200, and each kit comes with enough reagents to run 50 to 1 00 DO tests. Replacement reagents are inexpensive, and you can buy them already measured out for each test in plastic pillows. You can also buy the reagents in larger quantities, in bottles, and measure them out with a volumetric scoop. The advantage of the pillows is that they have a longer shelf life and are much less prone to contamination or spillage. The advantage of buying larger quantities in bottles is that the cost per test is considerably less. The major factor in the expense of the kits is the method of titration they use eyedropper, syringe-type titrator, or digital titrator. Eyedropper and syringe-type titration is less precise than digital titration because a larger drop of titrant is allowed to pass through the dropper opening and, on a micro-scale, the drop size (and thus the volume of titrant) can vary from drop to drop. A digital titrator or a buret (which is a long glass tube with a tapered tip like a pipet) permits much more precision and uniformity in the amount of titrant that is allowed to pass. If your program requires a high degree of accuracy and precision in DO results, use a digital titrator. A kit that uses an eye dropper-type or syringe- type titrator is suitable for most other purposes. The lower cost of this type of DO field kit might be attractive if you are relying on several teams of volunteers to sample multiple sites at the same time. Meter and Probe A dissolved oxygen meter is an electronic device that converts signals from a probe that is placed in the water into units of DO in milligrams per liter. Most mete1rs and probes also measure temperature. The probe is filled with a salt solution and has a selectively permeable membrane that allows DO to pass from the stream water into the salt solution. The DO that has diffused into the salt solution changes the electric potential of the salt solution and this change is sent by electric cable to the meter, which converts the signal t o milligrams per liter on a scale that the volunteer can read. DO meters are expensive compared to field kits that use the titration method. Meter/probe combinations run between $500 and $1,200, including a long cable to connect the probe to the meter. The advantage of a meter/probe is that you can measure DO and temperature quickly at any point in the stream that you can reach with the probe. You can also measure the DO levels at a <ertain point on a continuous basis. The results are read directly as milligrams per liter, unlike the titration methods, in which the final titration result might have to be converted by an equation to milligrams per liter. However, DO meters are more fragile than field kits, and repairs to a damaged meter can be costly. The meter/probe must be carefully maintained, and it must be calibrated before each sample run and, if you are doing many tests, in between samplings. Because of the expense, a volunteer program might have only one meter/probe. This means that only one team of samplers can sample DO and they will have to do all the sites. With field kits, on the other hand, severa.l teams can sample simultaneously. Laboratory Testing of Dissolved Oxygen If you use a meter and probe, you must do the testing in the field; dissolved oxygen levels in a sample bottle change quickly due to the decomposition of organic material by microorganisms or the production of oxygen by algae and other plants in the sample. This will lower your DO reading. If you are using a variation of the Winkler method, it is possible to "fix" the sample in the field and then deliver it to a lab for titration. This might be preferable if you are sampling under adverse conditions or if you want to reduce the time spent collecting samples. It i s also a little easier to titrate samples in the lab, and more quality control is possible because the same person can do all the titrations.http://water.epa .gov/type/rsVmonitoringlvms5 2.clin[ 10/10/2012 6:59:0 I PM]
  18. 18. 5.2 Dissolved Oxygen and Biochemical Oxygen Demand I Monitoring & Assessment I US EPA App. 3 How to collect and analyze samples The procedures for collecting and analyzing samples for dissolved oxygen consist of the following tasks: TASK 1 Prepare before leaving for the sampling site Refer to section 2.3 -Safety Considerations for details on confirming sampling date and time, safety considerations, checking supplies, and checking weather and directions. In addition to the standard sampling equipment and apparel, when sampling for dissolved oxygen, include the following equipment: If Using the Winkler Method • Labels for sample bottles • Field kit and instructions for DO testing • Enough reagents for the number of sites to be tested • Ke·mmerer, Van Dorn, or home-made sampler to collect deep-water samples • A numbered glass BOD bottle with a glass stopper (1 for each site) • Data sheet for dissolved oxygen to record results If Using a Meter and Probe • DO meter and probe (electrode) (NOTE: Confirm that the meter has been calibrated according to the manufacturers instructions.) • Operating manual for the meter and probe • Extra membranes and electrolyte solution for the probe • Extra batteries for the meter • Extension pole • Data sheet for dissolved oxygen to record results TASK 2 Confirm that you are at the proper location The directions for sampling should provide specific information about the exact point in the stream from which you are to sample; e.g., "approximately 6 feet out from the large boulder downstream from the west side of the bridge." If you die nol �ure you die in the exdl.l �pol, 1eLo1d d deldiled d e� u i plio n ofwhe1e you Look the �drnple �o lhdl il Ldll be compared to the actual site later. TASK 3 Collect samples and fill out the field data sheet Winkle r Method Use a IBOD bottle to collect the water sample. The most common sizes are 300 milliliters (ml) and 60 ml. Be sure that you are using the correct volume for the titra{ion method that will be used to determine the amount of DO. There is usually a w hite label area on the bottle, and this may already be numbe red. If so, be sure to record that number on the fie ld data sheet. If your bottle is not already numbered, place a label on the bottle (not on the cap because a cap can be inadvertently placed on a different bottle) and use a waterproof marker to write in the site number. If you are collecting duplicate samples, label the duplicate bottle with the correct code, which should be determined prior to sampling by the lab supplying the bottles. Use the following procedure for collecting a sample for titration by the Winkler method: 1. Remember that the water sample must be collected in such a way that you can cap the bottle while it is still submerged. That means that you must be able to reach into the water with both arms and the water must be deeper than the sample bottle. 2. Carefully wade into the stream. Stand so that you are facing one of the banks. 3. Collect the sample so that you are not standing upstream of the bottle. Remove the cap of the BOD bottle. Slowly lower the bottle into the water, pointing it downstream, until the lower lip of the opening is just submerged. Allow the water to fill the bottle very gradually, avoiding any turbulence (which would add oxygen to the sample). When the water level in the bottle has stabilized (it wont be full because the bottle is tilted), slowly turn the bottle upright and fill it completely. Keep the bottle under water and allow it to overflow for 2 or 3 minutes to ensure that no air bubbles are trapped. 4. Cap the bottle while it is still submerged. lift it out of the water and look around the "collar" of the bottle just below the bottom of the stopper. If you see an air bubble, pour out the sample and try again. 5. "Fix" the sample immediately following the directions in your kit:http://water.epa .gov/type/rsVmonitoringlvms5 2.clin[ 10/10/2012 6:59:0 I PM]
  19. 19. 5.2 Dissolved Oxygen and Biochemical Oxygen Demand I Monitoring & Assessment I US EPA App. 4 o Remove the stopper and add the fixing reagents to the sample. o Immediately insert the stopper so air is not trapped in the bottle and invert several times to mix. This solution is caustic. Rinse your hands if you get any solution on them. An orange-brown flocculent precipitate will form if oxygen is present. o Wait a few minutes until the floc in the solution has settled. Again invert the bottle several times and wait until the floc has settled. This ensures complete reaction of the sample and reagents. The sample is now 1fixed, and atmospheric oxygen can no longer affect it. If you are taking the sample to the lab for titration, no further action is necessary. You can store the sample in a cooler for up to 8 hours before titrating it in a lab. If you are titrating the sample in the field, see Task 4: Analyze the Samples. Figure 5.7 Taking a water sample for DO analysis Point the bottle downstream and fill gradually. Cap underwater when full. Using a DO Meter If you are using a dissolved oxygen meter, be sure that it is calibrated immediately prior to use. Check the cable connection between the probe and the meter. Make sure that the probe is filled with electrolyte solution, that the membrane has no wrinkles, and that there are no bubbles trapped on the face of the membrane. You can do a field check of the meters accuracy by calibrating it in saturated air according to th e manufacturers instructions. Or, you can measure a water sample that is saturated with oxygen, as follows. (NOTE: You can also use this procedure for testing the accuracy of the Winkler method.) 1 . Fill a 1-liter beaker or bucket of tap water. (You may want to bring a gal lon jug with water in it for this purpose.) Mark the b o ttle number as "tap" on the lab sheet. 2. Pour this water back and forth into another beaker 10 times to saturate the water with oxygen. 3. Use the meter to measure the water temperature and record it in the water temperature column on the field data sheet. 4. Find the water temperature of your "tap" sample in Table 5.3. Use the meter to compare the dissolved oxygen concentration of your sample with the maximum concentration at that temperature in the table. Your sample should be within 0.5 mg/L. If it is not, repeat the check and if there is still an error, check the meters batteries and follow the troubleshooting procedures in the manufacturers manual. Once the meter is turned on, allow 15 minute equilibration before calib1rating. After calibration, do not turn the meter off until the sample is analyzed. Once you have verified that the meter is working properly, you are ready to measure the DO levels at the sampling site. You might need an extension pole (this can be as simple as a piece of wood) to get the probe to the proper sampling point. Simply secure the probe to the end of the extension pole. A golfers ball retriever works well because it is collapsible and easy to transport. To use the probe, proceed as follows: 1. Place the probe in the stream below the surface. 2. Set the meter to measure temperature, and allow the temperature reading to stabilize. Record the temperature on the field data sheet. 3. Switch the meter to read dissolved oxygen. 4. Record the dissolved oxygen level on the field data sheet. TASK 4 Analyze the samples Three types of titration apparatus can be used with the Winkler method: droppers, digital titrators, and burets. Thehttp://water.epa .gov/type/rsVmonitoringlvms5 2.clin[ 10/10/2012 6:59:0 l PM]
  20. 20. Dissolved Oxygen and Biochemical Oxygen Demand I Monitoring & Assessment I US EPA5.2 App. 5 dropper and digital titrator are suited for field use. The buret is more conveniently used in the lab (Fig. 5.8) Volunteer programs are most likely to use the dropper or digital titrator. For titration with a dropper or syringe, which is relatively simple, follow the manufacturers instructions. The following procedure is for using a digital titrator to determine the quantity of dissolved oxygen in a fixed sample: 1. Se lect a sample volume and sodium thiosulf ate titration cartridge for the digital titrator corresponding to the expected dissolved oxygen concentration according to Table 5.4. In most cases, you will use the 0.2 N cartridge and the 100-ml sample volume. 2. Insert a clean delivery tube into the titration cartridge. 3. Attach the cartridge to the titrator body. 4. Hold the titrator with the cartridge tip up. Turn the delive ry knob to eject air and a few drops of titrant. Reset the counter to 0 and wipe the tip. 5. Use a graduated cylinder to measure the sample volume (from the "fixed" sampl e in the 300-ml BOD bottle) according to Table 5.4. 6. Transfer the sample into a 250-ml Erlenmeyer flask, and place the flask on a magnetic stirrer with a stir bar. If you are in the field, you can manually swirl the flask to mix. 7. Place the delivery tube tip into the solution and turn the stirrer on to stir the sample while you re turning the de livery knob. 8. Titrate to a pale yellow color. 9. Add two dropperfuls of starch indicator solution and swirl to mix. A strong blue color will develop . 10. Continue to titrate until the sample is clear. Record the number of digits required. (The color might reappear after standing a few minutes, but this is not a cause for concern. The "first" disappearance of the blue color is considered the endpoint.) 11. Calculate mg/L of DO = di gits required X digit multiplier (from Table 5.4). 12. Record the results in the appropriate column of the data sheet. Some water quality standards are expressed in terms of percent saturation. To Figure 5.8 calculate percent saturation of the sample: Titrating a DO sample using a buret 1. Find the temperature of your water sample as measured in the field. 2. Find the maximum concentration of your sample at that temperature as given in Table 5.3. 3. Calculate the percent saturat ion, by dividing your actual dissolved oxygen by the maximum concentration at the sample temperature. 4. Record the percent saturat io n in the appropriate column on the data sheet. TASK 5 Return the samples and the field data sheets Ex pected Sample [fit ration Digit [fable 5.4 to the lab/drop-off point Range Volume Cartridge Multiplier 1 -5 200 0.2 N 0.01 Sample If you are using the Winkler method and delivering the samples to a m g/L ml r,rolume lab for titration, double-check to make sure that you have recorded 2-10 100 0.2 N 0.02 selection and the necessary information for each site on the field data sheet, m g/L ml corresponding espec i ally the bottle number and corresponding site nu mber and 10+ 200 2.0 N 0.10 r,ralues for the times the samples were collected. Deliver your samples and field m g/L ml �inkier data sheets to the lab. If you have already obtained the dissolved titration oxygen results in the field, send the data sheets to your sampling coordinator. What is biochemical oxygen demand and why is it important? Biochemical oxygen demand, or BOD, measures the amount of oxygen consumed by microorganisms in decomposing organic matter in stream water. BOD also measures the chemical oxidation of inorganic matter (i.e., the extraction of oxygen from water via chemical reaction). A test is used to measure the amount of oxygen consumed by these organisms during a specified period of time (usually 5 days at 20 C). The rate of oxygen consumption in a stream is affected by a number of variables: temperature, pH, the presence of certain kinds of microorganisms, and the type of organic and inorganic material in the water. BOD directly affects the amount of dissolved oxygen in rivers and streams. The greater the BOD, the more rapidly oxygen is depleted in the stream. This means less oxygen is available to hi gher forms of aquatic life. The consequences of high BOD are the same as those for low dissolved oxygen: aquatic organisms become stressed,http://water.epa .gov/type/rsVmonitoringlvms5 2.clin[ 10/10/2012 6:59:0 I PM]
  21. 21. 5.2 Dissolved Oxygen and Biochemical Oxygen Demand I Monitoring & Assessment I US EPA App. 6 suffocate, and die. Sources of BOD include leaves and woody debris; dead plants and animals; animal manure; effluents from pulp and paper mills, wastewater treatment plants, feedlots, and f ood-pr ocessing plants; failing septic systems; and urban stormwater runoff. Sampling Considerations BOD is affected by the same factors that affect dissolved oxygen (see above). Aeration of stream water by rapids and waterfalls, for example will accelerate the decomposition of organic and inorganic material. Therefore, BOD levels at a sampling site with slower, deeper waters might be hi gher for a given volume of organic and inorganic material than the levels for a similar site in highly aerated waters. Chlorine can also affect BOD measurement by inhibiting or k i lling the microorganisms that decompose the organic and inorganic matter in a sample. If you are sampling in chlorinated waters, such as those below the effluent from a sewage treatment p la nt, it is necessary to neutralize the chlorine with sodium thiosulfate. (See APHA, 1992.) BOD m eas ur ement requires ta ki ng two samples at each site. One is tested immediately for dissolved oxygen, and the second is incubated in the dark at 20 C for 5 days and then tested for the amount of dissolved oxygen remaining. The difference in oxygen levels between the first test and the second test, in milligrams per liter (mg/L), is the amount of BOD. Th is represents the amount of oxygen consumed by microorgan ism s to break down the organic matter present in the sample bottle during the incubation pe1riod. Because of the 5-day incubation, the tests should be conducted in a laboratory. Sometimes by the end of the 5 -day incubation period the dissolved oxygen level is zero. This is especially true for rivers and streams with a lot of organic pollution. Since it is not known when the zero point was reached, it is not possible to tell what the BOD level is. In this case it is necessary to dilute the original sample by a factor that results in a final dissolved oxygen level of at least 2 mg/L. Special dilution water should be used for the dilutions. (See APHA, 1992.) It takes some experimentation to determine the appropriate dilution factor for a particular sampling site. The final result is the difference in dissolved oxygen between the first measurement and the second after multiplying the second result by the dilution factor. More details are provided in the following section. How to Collect and Analyze Samples The procedures for collecting samples for BOD testing consist of the same steps described for sampling for dissolved oxygen (see above), with one important difference. At each site a second sample is collected in a BOD bottl e and delivered to the lab for DO testing after the 5 -day incubation period. Follow the same steps used for measuring dissolved oxygen with these additional considerations: • Make sure you have two BOD bottles for each site you will sample. The bottles should be black to prevent photosynthesis. You can wrap a clear bottle with black electricians tape if you do not have a bottle with black or brown glass. • Label the second bottle (the one to be incubated) clearly so that it will not be mistaken for the first bottle. • Be sure to record the information for the second bottle on the field data sheet. The first bottle should be analyzed just prior to storing the second sample bottle in the dark for 5 days at 20 C. After this time, the second bottle is tested for dissolved oxygen using the same method that was used for the first bottle. The BOD i s expressed in milligram s per liter of DO using the following equation: DO (mg/L) of first bottle - DO (mg/ L) of second bottle =BOD (mg/L) References APHA . 1992. Standard methods for the examination of water and wastewater. 18th ed. American Public Health Association, Washington, DC.http://water.epa .gov/type/rsVmonitoringlvms5 2.clin[ 10/10/2012 6:59:0 l PM]
  22. 22. 5.2 Dissolved Oxygen and Biochemical Oxygen Demand I Monitoring & Assessment I US EPA App. 7 0 EPA Home I Privacy and Security Notice I Contact Us .. VJ • � (0) Last updated on Tuesday, March 06, 2012 News by E-mail EPA Mobile Yidgels News Feeds Podcasts .http://water.epa .gov/type/rsVmonitoringlvms5 2.clin[ 10/1 0/2012 6:59:0 I PM]