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Sewer Authority in DEP Commissioner’s Home Town Balks at Cost of Pollution Controls for Toxic Arsenic

[Update: 9/2/11 – Jim Waltman reports that last night in Hopewell Borough, he was able to convince Council to edit out all the bad stuff, similar to Hopewell Township Resolution.

The ball is now in DEP’s court – let’s hope they agree to hold a public hearing and stand by their draft NJPDES permits for the Hopewell plant and the Pennington plant. – end update]

Last Monday night (8/22/11), a stealth move by the Stony Brook Regional Sewerage Authority (SBRSA) to convince the Hopewell Township Committee to back their attack on a draft DEP clean water permit failed.

Fortunately, the SBRSA’s move was detected by Stony Brook Millstone Watershed Association Director Jim Waltman.

Waltman forwarded a proposed Township Committee Resolution to me late Monday, just prior to the Committee’s hearing.

I was able to attend the hearing and – after extended debate – ultimately convinced the Township Committee, with the help of Committee-woman Vanessa Sandom, to significantly revise the proposed Resolution that had been placed on the agenda at the request of the SBRSA.

(water wonks out there can watch debate. I introduced the issue during the general public comment period from time 55:55 – 59:10. Later, there was an extraordinary more detailed 50 minute debate on the resolution from time 2:37: 40 until 3: 25:00).

Before we get to the specifics of the DEP NJPDES permit dispute, some history and context is in order.

Ironically, Hopewell Township – locus of the infamous mid 1990’s Merrill Lynch, State Plan, ELSA Sewer Line land use water resource battle – has long been a leader in water resource protection.

The Hopewell local Master Plan and zoning code are based on protection of water quality and quantity.

In fact, the Hopewell zoning scheme serves as a statewide model, having survived legal challenge and been upheld in a precedent setting decision by well respected Mercer County Superior Court judge Linda Feinberg.

Hopewell also has a reputation for open and deliberative decision making, based on respect for public input, science, and facts.

So, I was somewhat surprised by what was going down. Here’s the story.

In the course of routine 5 year renewal of their water pollution permits, the DEP had proposed a revision to the NJPDES permit effluent limits for the SBRSA’s Pennington and Hopewell plants.

The permit renewals noted that important previous water quality restrictions of phosphorus discharges had been “stayed” by a DEP March 2007 letter.

The DEP permit also postponed important needed treatment upgrades until the long delayed “Raritan TMDL” was completed. That TMDL study is almost a decade old, and many years behind schedule (the Raritan was a priority on the DEP’s 2004 2 year TMDL scheule).

So in my view, the SBRSA was inappropriately rewarded for a strategy of foot dragging, using a series of delaying legal and technical challenges to all DEP efforts to upgrade the SBRSA antiquated 30 year old treatment plants.

On top of this “flexibility” by DEP, SBRSA was being rewarded by an almost 50% expansion in pollution discharge. The DEP was allowing the SBRSA Pennington plant to increase its flow from 300,000 gallons per day, to 440,000 GPD, thereby greatly magnifying pollution impacts on the already impaired Stony Brook and spurring new development that would provide additional non-point source pollution.

But, the SBRSA didn’t see it this way.

In response to DEP’s permit renewal, the SBRSA attempted to make a frontal assault on numerous DEP clean water policies, surface water quality standards, and permit regulations.

SBRSA strongly objected to the DEP’s proposed arsenic limit, and in doing so challenged the way statewide water quality standards are set and implemented in the permit program.

This challenge was based solely on the costs of compliance, which SBRSA claimed would cost $15 million for construction of a reverse osmosis treatment system.

Given the current debate on Christie’s policies to relax environmental regulations to reduce compliance costs, the SBRSA move was a significant threat not only to the local streams that receive discharges from the SBRSA plants, but also to DEP’s statewide water quality standards and permit regulations and policies.

Those historically stringent DEP standards and policies are under attack right now on similar cost grounds.

Because the SBRSA serves the home town of DEP Commissioner Bob Martin, local threat was magnified greatly.

It was obvious that the Committee was unaware of the issues at play in the complex DEP permit and SBRSA drafted Resolution .

The originally proposed SBRSA drafted Resolution openly attacked DEP standards:

Whereas, the NJDEP has issued draft permits which include discharge parameters that will obligate the SBRSA to significant plant upgrades which could cost between $10 nd $20 million and which costs will be born, in part, by Hopewell rate payers; and

Whereas, the SBRSA has represented to Hopewell Township that some of the discharge criteria are more restrictive than NJDEP drinking water standards, that no consideration has been given by the NJDEP to dilution in the waterways receiving treated effluent discharges that is prior to any potable water intake and that these factors contribute greatly to the cost of upgrades.…

Now Therefore be it Resolved by the Township Committee as follows:

1. That the Hopewell Township supports the SBRSA’s request and comments that the NJDEP consider establishing a more reasonable discharge criteria in its draft NJPDES permits for the SBRSA Hopewell and Pennington treatment facilities..

The SBRSA and Hopewell Township engineer Paul Pogorzelski quietly drafted a Resolution opposing a new pollution discharge permit for the Pennington sewage treatment plant.

Although the wording of the proposed Resolution was extremely broad and could have applied to numerous pollutants discharged by SBRSA, the main controversy involved the effluent limit DEP set for arsenic, a known human carcinogen.

Arsenic is naturally occurring in the geology under Hopewell Township, and I’ve been told that the natural background concentrations found in all local drinking water is 2 parts per billion (ppb).

The NJ surface water quality standard for arsenic in 0.017 parts per billion. The SWQS standard is based on lifetime individual cancer risk of 1 in a million, using scientific risk assessment methodologies that assume long term consumption of contaminated drinking water.

The NJ drinking water standard for arsenic is 5 ppb.

DEP proposed a SBRSA effluent limitation of 0.07 parts per billion for arsenic.

That is almost 100 times lower than the 5 ppb drinking water standard, but 4 times higher than the DEP surface water quality standard for arsenic.

The conflict between DEP surface water quality standards and drinking water standards has long been a matter of dispute.

That dispute is now being driven by Governor Christie’s “regulatory relief” policies.

SWQS are set by DEP scientists based exclusively on science – they do not consider compliance costs, analytical detection limits, or the availability of treatment technology to meet the standard.

In contrast, NJ drinking water quality standards explicitly consider treatment technology and analytical detection limits. Because drinking water standards are developed by the NJ Drinking Water Quality Institute, an external policy group that includes representatives of the water companies, they indirectly consider costs.

DEP recently proposed a “waiver rule” to allow the Commissioner to waive certain regulatory requirements. Confirming our fears, the SBRSA representative stated that they had met with DEP upper management and been promised a waiver from these requirements.

Just as troubling, DEP Commissioner Bob Martin has ordered complete review and reconsideration of all DEP standards, and questioned their scientific basis.

Commissioner Martin has tasked at least 2 work groups within DEP to consider the economic costs of compliance with standards.

Governor Christie issued Executive Order #2 which adopts a policy of “regulatory relief” and mandates that all regulatory standards be based on cost benefit analysis.

So this SBRSA permit dispute could be used by industry lobbyists as a “horror story” to influence ongoing and very controversial policy deliberations.

At the same time, at the local level, the SBRSA had long delayed and dragged their feet in upgrading pollution control treatment technology required to restore the polluted Stony Brook, and meeting a TMDL schedule.

I reminded the Township Committee of all this history, context, and regulatory complexity.

I urged the Committee to stay out of this complex regulatory dispute, which was exclusively DEP’s job, not the Township’s.

That approach was rejected.

So I urged the Township to revises the Resolution to be more balanced in the public interest, and to ask DEP to hold a public hearing so that facts could be developed and residents have an opportunity to participate.

Thankfully, Committee woman Sandom agreed, and the Resolution was revised in a way that eliminated the SBRSA criticism of DEP and merely requested a public hearing .

The public comment period on the DEP SBRSA NJPDES permit apparently closes September 6.

I have not had a chance to review the NJPDES permit yet, so we hope to bring you more detail in future posts.

We dodged a bullet here, but the larger policy problem will not go away.

Lets hope that DEP grants the public hearing request and supporters of clean water turn out.