The Chesapeake Bay Foundation in November filed suit against the EPA for failing to respond to its petition from last year that called for stronger measures to clean up the Bay.
In its petition, the environmental group called for several regulatory actions, including enforceable nitrogen limits in discharge permits for wastewater treatment plants and industries in the watershed.
EPA officials say they plan to announce nitrogen permit requirements for treatment plants by the end of the year, although it’s not certain whether those permits will go as far as the CBF had demanded.
The group, expressing concern about the slow pace of the Bay cleanup effort, had filed a petition with the EPA last December contending that it was obligated under the Clean Water Act to take a variety of regulatory actions to reduce nutrient pollution.
It had asked the EPA to respond within six months. But after meeting with agency officials in early summer and granting a 30-day extension, the group never again heard from the EPA on the matter, said Roy Hoagland, CBF vice president for environmental protection and restoration. “We have yet to get a formal federal response from EPA,” he said. “We are filing suit to get them off their duffs. We think nearly a year is reasonable time.”
In its petition, the CBF had called for the EPA to set a “technology-based effluent limitation” of 3 milligrams of nitrogen per liter of water for discharge permits in the watershed. Nitrogen is one of the chief contributors to the Bay’s water quality problems.
The group also said that the EPA should require at least 25 percent of the grant money that states in the watershed receive for Clean Water Act programs to be allocated to nutrient reduction technology for wastewater treatment plants. In addition, it called on the EPA to establish enforceable cleanup plans, known as a Total Maximum Daily Loads, for rivers leading to the Bay. Such plans are required for any waterbody on the EPA’s list of impaired waters. The EPA has allowed the state-federal Bay Program partnership to develop and implement its own cleanup strategy, but has indicated it will require TMDLs in 2011 if the region fails to clean up the Bay.
Some officials have opposed TMDLs, preferring the similar—but largely voluntary—approach of developing tributary strategies that outline how to achieve nutrient and sediment reduction goals for each river leading into the Bay.
Jon Capacasa, water director division director for EPA Region III, said the agency expects to finalize a policy by the end of the year that will require nitrogen limits in permits for all large wastewater treatment plants and industrial dischargers in the watershed.
The agreement will not require a specific technology-based limit as sought by the CBF. Instead, permits will set limits based on total nitrogen loads allocated to each facility based on tributary strategies developed by the states this year.
“It is still an approach that provides flexibility to each state based upon what their tributary strategy says,” Capacasa said. “They can tailor controls based upon the needs and impacts of each river on the Bay rather than applying a single technology solution across this large watershed. This is the cost-effective thing to do.” He said it would have taken the EPA years to complete technology-based regulations and implement them. The current approach will get results faster, he said, because it has been agreed upon by the states, and generally accepted by dischargers, which reduces its chances of being challenged in court. “What we are doing here in the Bay region is really unprecedented,” Capacasa said. “We are trying to develop a permitting approach for a seven-state basin.”
Capacasa says that the permits would have to set clear numeric limits that the EPA would be able to step in and enforce if the states failed to do so. That means the grant agreements used to achieve nutrient reductions in the past, in which plants forfeit state grants if they do not meet nutrient limits, could not be the only enforcement mechanism as such agreements are not enforceable by the EPA. “We’re not going to accept grant agreements by themselves as being sufficient,” he said.
Capacasa said the new permit requirements would begin going into force when Maryland approves its new water quality standards, which is expected in the spring. Meeting those standards will become the goal of nutrient reductions throughout most of the Bay watershed.
The EPA has 60 days to respond to the suit, which was filed Nov. 10 in the U.S. District Court for the District of Columbia.