Operators of Virginia’s wastewater treatment plants say they were “encouraged” after a meeting with EPA regional officials and will not proceed with a suit against the agency, at least for now.
The Virginia Association of Municipal Wastewater Agencies in September had threatened to sue the EPA over its decision to list the Chesapeake Bay as an “impaired” waterbody — an action that could force sharp, and potentially costly, nutrient reductions at wastewater treatment plants.
But after meeting with EPA officials Oct. 20, VAMWA said in a letter that it was encouraged by the agency’s “expressed commitment to working with its Bay Program partners” in devising a cleanup plan that could lead to the Chesapeake being removed from the impaired waters list.
“It shows they are willing to see if we are able to make this process work, and continue to get the cooperation of all six states and the district and the EPA to try to keep everybody on the same track,” Bill Matuszeski, director of the EPA’s Bay Program Office, said of the letter.
As an impaired waterbody, the states and/or the EPA have to devise a cleanup plan known as a Total Maximum Daily Load — or TMDL — which calculates the maximum amount of pollution the Chesapeake could receive and still meet its water quality standards. Reductions based on that calculation would be required from various pollution sources.
Because wastewater treatment plants must have enforceable discharge permits and are therefore more easily regulated than other major sources of pollution, such as runoff, plant operators in both Virginia and Maryland fear they would be forced to bear the brunt of greater nutrient reductions, even if it proves costly.
The EPA has said that it can hold off forcing TMDL development in the Bay watershed until 2011, giving the Bay Program time to devise a more flexible nutrient reduction strategy to clean up the Chesapeake — in effect, heading off the TMDL regulatory action.
In its letter, VAMWA expressed support for the broad road map the Bay Program has laid out for getting the Chesapeake removed from the impaired water list. That plan calls for developing “endpoints” that would constitute a “clean” Bay.
Such endpoints could include things such as specific concentrations of dissolved oxygen in the water, requiring specific amounts of water clarity, and establishing maximum acceptable algae concentrations.
Once numeric endpoints are established, the Bay Program would determine the amount of nutrient and sediment reductions needed to achieve them. Ultimately, it’s expected that states would adopt the endpoints as water quality standards.
The specific nutrient and sediment reductions needed to reach those goals would be allocated among tributaries, with specific rivers being assigned specific “loads.”
States would then have to achieve those reductions from various pollution sources. Once those endpoints were achieved, the Bay could be moved from the impaired water list.
But in a move that concerns environmentalists, that approach would also take the place of an ongoing EPA effort to set specific nitrogen and phosphorus criteria for waterbodies — something that would focus on limiting the concentrations of nitrogen and phosphorus allowed in the water.
Traditionally, such limits would then be incorporated into strict discharge permits. That is something VAMWA wants to avoid because meeting a specific concentration in the water at all times is more difficult than reducing the total amount of nitrogen and phosphorus released over a period of time, as the Bay Program is proposing.
Further, because treatment plants are among the main dischargers that would be subjected to nutrient criteria, VAMWA expressed fear in its letter that nutrient criteria would make plants “tempting targets for excessive and disproportionate nutrient control.”
VAMWA said its views had also been reviewed, and were supported by the Maryland Association of Municipal Wastewater Agencies.
Jeff Corbin, a scientist with the Chesapeake Bay Foundation, said the CBF is concerned about the move toward endpoints — and away from specific criteria for nitrogen and phosphorus, like EPA and the states have established for other pollutants.
“In the past, it has been the EPA’s responsibility to use scientific data to come up with standards and to translate that into permit limits and issue permits,” Corbin said. “Now, what they propose to do is to allow the people who receive those permits to sit down at the table and determine what the standards are going to be. And by turning that into a permit limit, VAMWA gets to write their own permits.”
VAMWA prefers the current system in which wastewater treatment plant operators get grants from the state to help pay for upgrades in exchange for signing agreements in which the operators pledge to meet certain performance targets in their effluent, or or else pay back the grant money.
“Until somebody can point to the grant agreements not working, not being successful in getting nutrient reduction technologies installed and operating, it seems to me that we ought to stay with it,” said David Evans, an attorney for VAMWA. “If we weren’t getting it done with the grant agreements, then the fallback is the permits, and I don’t know that we would have a legitimate basis for complaining.”
Further, meeting criteria in a permit would be more exacting than the nutrient reduction goals in grant agreements. If they don’t meet the permit requirement, plants could face legal action and fines of up to $25,000 a day under the Clean Water Act. To prevent that, engineers “overdesign” plants, making upgrades more expensive.
“No permittee designs just to meet that permit limit,” Evans said. “You design to meet levels below that permit limit to give yourselves a margin of error.”
But if the Bay watershed is exempted from establishing nutrient criteria for nitrogen and phosphorus, the CBF expressed concern that there may ultimately be no enforceable fallback if the Bay states fail to achieve their endpoints.
“We’re moving away from a quantifiable standard and a quantifiable TMDL, and we’re really going for more of the same — another mushy, voluntary unquantifiable goal,” Corbin said. “And it’s going to be very hard to hold anybody responsible if we don’t meet that goal.”
But the Bay Program’s Matuszeski contends that will not happen. If the Bay states fail to achieve the reductions needed to attain endpoints, he said the Bay would remain on the impaired waters list and a TMDL — with its less-flexible implementation requirements — would be needed. “The nutrient and sediment loads will have to allocated to all of the sources, and that load will then become enforceable,” Matuszeski said.
Because the Bay Program plans to set endpoints and allocate loads among rivers by 2001, nutrient and sediment reductions which would happen sooner than under a TMDL, which might not be required before 2011. “We will have completed by 2001 — 10 years ahead of schedule — a virtual TMDL,” Matuszeski said.
VAMWA, meanwhile, said it would not file a suit over the Bay listing until the issues had a chance to play out. In addition, their letter said they would like some mechanism to formally “memorialize” the process being pursued by the states to develop endpoints and head off a TMDL.
Such action could take form as a “directive” signed by the governors of the Bay states and the administrator of the EPA.