The EPA for the first time has indicated that it will require permits to limit nitrogen discharges at wastewater plants throughout the Bay watershed to help clean up the Chesapeake.
In a program recently outlined by the agency, states could begin issuing permits limiting discharges at more than 360 wastewater treatment plants and private industries by the end of this year.
“This is the first time that the EPA essentially has come out and recommended permit limits for all major point sources all the way across the watershed,” said Rich Batiuk, associate director for science with the EPA’s Bay Program Office.
Right now, treatment plants and industries generate 21 percent of the nitrogen and phosphorus entering the Bay, according to EPA estimates.
While phosphorus discharges have been regulated for years, this is the first time the EPA has issued a policy indicating its intent to regulate nitrogen discharges throughout the watershed. In the past, it—and the states—had relied largely on voluntary programs.
Under the new policy, states are expected to set annual nutrient discharge limits for plants—measured in pounds of nitrogen and phosphorus—as part of river-specific nutrient control plans, known as tributary strategies, being completed this year.
Those limits are expected to be incorporated into facility permits as they come up for renewal, which typically happens every five years. The EPA and states can open permits earlier, if necessary, Batiuk said.
The trigger for the permit action to begin will be Maryland’s adoption of new water quality standards, which is expected by the end of this year. When adopted, facilities in all Bay tributaries from the Rappahannock River in Virginia to the Chemung River in New York, will be subject to permits because they all contribute to Maryland’s water pollution problems, Batiuk said.
The York and James rivers in Virginia are exempted because they do not contribute significantly to Maryland water quality problems, Those plants will be affected when Virginia adopts its water quality standards, which is expected in 2005.
“As Maryland puts those standards in place, then we feel we’ve got the legal basis” to require permit limits throughout most of the watershed, Batiuk said.
The EPA released its policy in a letter to the Chesapeake Bay Foundation. The environmental group in December filed a petition with the EPA demanding that the agency begin setting nutrient limits in wastewater treatment plant permits.
Roy Hoagland, the CBF’s Virginia director, called the EPA’s plan “too little too late.” The agency, he said, should have moved on its own to adopt technology-based limits for nutrients similar to those it has established for other pollutants, rather than waiting for the adoption of state water quality standards.
“What happens if [Maryland standards] are challenged?” he asked. “Why should those standards be the driving force for federal requirements under the Clean Water Act?”
He also noted that the policy is a recommendation from the EPA, and is not legally binding. The agency, Hoagland said, has avoided taking its regulatory responsibility to avoid upsetting Bay Program partners. “They haven’t committed to a regulatory action,” he said. “They have outlined a concept that is based on the continuing cooperation and consent of everybody.”
Batiuk said the EPA issued the policy after consultation with all seven jurisdictions in the watershed—Virginia, Maryland, Pennsylvania, the District of Columbia, Delaware, West Virginia and New York—as well as representatives from wastewater treatment plants.
That should minimize the likelihood of challenges, he said. “It reflects months of work with all seven jurisdictions,” he said. “It is not the EPA stepping out by itself and saying all of a sudden we feel that we have to go ahead and regulate.”
In addition, he said the EPA’s new water quality criteria to protect the Chesapeake, which are the basis for Maryland’s water quality standards, went through scientific scrutiny that will make them difficult to challenge.
Chris Pomeroy, an attorney who represents Virginia’s wastewater treatment plants, said the policy included no surprises. “Most of that is just memorializing a number of the discussions they have been having,” he said.
The EPA’s policy would allow the nutrient permit limits to be set as the maximum amount of pounds that may be released each year, rather than as the monthly, weekly or daily limit which is usually established for pollutants.
The intent, Batiuk said, is to allow flexibility to plants in making the reductions. Many nutrient control technologies are more effective in the summer than during the winter, and forcing plants to meet weekly limits during cold months could be hugely expensive.
Further, he said, scientific evidence suggests monthly or weekly limits would have little added benefit.
The policy would also allow states to issue “watershed permits” instead of plant-by-plant permits, in which a specific nutrient reduction goal would be set for a group of dischargers on a particular tributary.
That would allow plants to establish nutrient trading programs in which those that can make the most inexpensive nutrient reductions may be paid to do more than their share by plants where reductions are more expensive.
CBF officials said they were dismayed that the EPA had failed to fully respond to numerous concerns expressed in its petition, and that they were considering a suit against the agency.
“We have, unfortunately, not gotten a complete response to our petition,” said Theresa Pierno, CBF vice president for environmental protection and restoration. “We are looking at taking legal action. We are working with a couple of attorneys right now looking at what would be the best route to take.”
Among other concerns cited in the petition, the CBF said the EPA is required by law to develop a regulatory document, known as a Total Maximum Daily Load, that would set legally enforceable limits on the amount of nutrient pollution entering the Bay.