Christie DEP Seeks To “Squeeze the Juice” Out of Sewage Treatment Plant Capacity
DEP Proposal Would Roll Back Clean Water Protections
Another example of abuse of Christie’s “regulatory relief” policy
Incredibly, DEP is proposing a rule that they KNOW will increase the probability of NJPDES permit violations at sewage treatment plants and that the KNOW will reduce the number of plans required to correct deficiencies and better protect water quality.
One of Governor Christie’s most notorious self serving quips was that he liked to “squeeze all the juice out of the orange“ – which was slammed as an example of his “shameless love of freeloading”.
Following the Governor’s maxim, the Christie DEP just proposed a rule designed to “squeeze the juice” out of sewage treatment plant capacity, a move that would rollback existing protections and result in more permit violations and more pollution discharged to the State’s already impaired rivers and streams.
The DEP is proposing to gut the longstanding “Capacity Assurance Program” (CAP), which mandates that sewage treatment plants conduct a study, prepare a “Capacity Assurance Plan” (CAP), and implement corrective measures to reduce the flows of wastewater when the sewage treatment plant exceeds 80% of permitted capacity.
The objective of the CAP program is to take steps in advance to avoid permit violations and water pollution.
The CAP program requires planning for infrastructure investments and system and treatment upgrades to protect clean water, as the treatment plant’s capacity is maxed out, and assure that the facility complies with its permit limits.
Key elements of a CAP program include enforceable regulatory requirements like water conservation measures and a sewer connection ban for new developments until capacity problems are addressed.
The DEP is proposing to increase the current 80% regulatory trigger to submit a CAP to 100% of plant permitted capacity. The proposal also would eliminate key CAP implementation requirements, particularly water conservation and flow reduction measures that could be implemented by local governments. I wrote previously about the CAP program, see:
Today, DEP held a public hearing on the proposal. The turnout was light: Sierra Club, retired professional Bill Simmons, myself and a consultant for the sewer plants.
An engineering consultant representing 4 regional sewage authorities raised a concern that flagged a fatal flaw:
“It’s too late to plan once a plant reaches 100% capacity.”
When even the experts that consult for the sewage treatment plants raise concerns about DEP water quality rollbacks, you know you’ve got a problem.
I questioned why the Christie DEP was rolling back basic water quality protections that had bipartisan support for 30 years.
I had to admit that the Christie “regulatory relief” DEP made the Whitman “open for business” DEP look good. I pointed to Whitman’s Executive Order #109: (get a load of this):
WHEREAS, there is an immediate need to take strong, decisive action to conduct water resource planning on a watershed basis to promote smart growth in a manner that accounts for further secondary and cumulative impacts of such growth.
NOW, THEREFORE, I CHRISTINE TODD WHITMAN, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and statutes of this State, do hereby ORDER and DIRECT:
1. Until such time that the Water Quality Management Planning rules, currently set forth at N.J.A.C. 7:15, are repealed and replaced, the Department of Environmental Protection shall determine, consistent with its existing authority, including N.J.A.C. 7:15-5.18, what, if any, alternatives analyses must be conducted prior to the Department’s making a final decision on an application for approval of a wastewater management plan or amendment thereto and, where applicable and consistent with its existing authority, an application for approval of a water quality management plan or amendment thereto, including, but not limited to, an evaluation of depletive and consumptive water use, detailed land use, environmental build-out and pollutant loading.
I testified to raise the following objections and questions:
1. Billions in unmet water infrastructure needs, while Asset Management initiative is stalled
In 2008, DEP submitted a Clean Water Needs Assessments to US EPA that identified $16.9 billion in wastewater infrastructure needs, a 54% increase from 2004. That estimate did not include huge additional needs associated with adaptation to climate change.
To address these unmet infrastructure needs, with munch fanfare, the Christie BPU and DEP jointly DEP rolled out its new “asset management” initiative way back in 2010:
The proposal grew out of the Christie Administration’s “infrastructure asset management and financing” initiative discussed at last October’s Clean Water Council annual public hearing at DEP. BPU President Lee Solomon spoke at that hearing – see: Clean Water Council Considering Privatization
Since then, it’s been nothing but talk – and pushback by the private water companies and public water authorities who strongly oppose new DEP regulations mandating costly asset management requirements.
The CAP program triggers a review of the condition and capacity of wastewater infrastructure to meet current and future needs while protecting clean water – this can only further the objectives of planning, asset management, and investments in wastewater systems.
Given the unmet infrastructure needs and stated objectives of the Asset Management initiative, why would DEP essentially gut the CAP program?
2. DEP Proposal Fails To Present the Benefits of the CAP program or quantify increases in NJPDES violations
The proposal notes that the increase in the regulatory trigger from 80% to 100% of permitted flows will result in a significant reduction in the number of facilities that will be required to submit CAP plans.
What will the water quality impact be of this reduction in CAP plans?
The proposal fails to present or consider or quantify the historical benefits of the CAP program – just what has it achieved? What water quality benefits will be lost by the major changes proposed?
3. The DEP’s “Flow Study” is flawed, has not been peer reviewed or disclosed to the public
As the technical basis to justify the proposed increase of the regulatory trigger from 80 – 100% of permitted flow, the proposal presents an “analysis” of a statistical correlation between the 80% trigger and subsequent violations of NJPDES permit effluent and loading limits for a limited set of parameters.
First, the parameters selected are not appropriate for discharges above water supply intakes, where concern for nitrates and low level toxic pollutants are key public health considerations.
Second, while the correlations are low, the proposal fails to disclose the fact that there would be an increase in NJPDES permit violations or to quantify these increases in violations or reveal which specific plants would be more likely to violate their NJPDES permits.
The public must be provided with this information and the DEP must consider that information in analyzing whether to adopt the proposal. The DEP should not be proposing relaxing regulatory requirements that they KNOW will statistically increase the probability of NJPDES permit violations.
Given these serious question about the DEP’s methodology for this study and the conclusions its supports, the study must be released to the public and subject to peer review before it can be relied upon for regulatory purposes.
4. The use of averaging ignores critical high wastewater and low stream flows
The proposal would extend the current 3 month averaging period used to determine existing wastewater flows to a 12 month period.
There are two problems with this approach and they lead to the same water quality problem:
First, the use of an average dampens high flows that cause NJPDES violations. Many water quality standards are designed to protect against impacts from “critical conditions”, e.g. water exceeds a temperature that kills fish. The DEP proposed CAP approach ignores critical conditions from high flow discharges (or low flow streams); and
Second, the extension of the timeframe to 12 months also masks single or multiple high flow NJPDES violations that could be significant.
In addition to these problems, it appears that the DEP ignored stream flows – there may be interaction between low stream flows and violations of permitted flows that must be considered, particularly in ecologically significant receiving waters or for discharges upstream on water supply intakes.
DEP and EPA NPDES regulations express concerns for these sensitive locations:
Consideration of Sensitive Areas
EPA expects a permittee’s long-term CSO control plan to give the highest priority to controlling overflows to sensitive areas. Sensitive areas, as determined by the NPDES authority in coordination with State and Federal agencies, as appropriate, include designated Outstanding National Resource Waters, National Marine Sanctuaries, waters with threatened or endangered species and their habitat, waters with primary contact recreation, public drinking water intakes or their designated protection areas, and shellfish beds.
The DEP has not considered these site specific concerns regarding sensitive areas in the proposal, which is a fatal flaw that must be resolved prior to adoption of the proposal.
5. The proposal skirts the issue of whether flow is an enforceable permit condition
The proposal concedes the fact that there are now – and will continue to be in the future – many known exceedences of NJPDES permitted wastewater flows at sewage treatment plants.
We believe that flow is an enforceable permit condition.
We urge the Department to enforce exceedence of NJPDES permitted flows and to abandon this proposal which would lead to an increase in violation of permitted flows.
If DEP is looking the other way by drafting NJPDES permits that specify wastewater flows as a “monitor only” permit condition, that is an abuse and potential violation of the Clean Water Act.
We will take this issue up with EPA to assure that DEP is enforcing wastewater flows in EPA approved NJPDES permit conditions.
Perhaps even more important, in the WQMP proposal DEP seems to be grandfathering current permitted flows and treating these flows in the CAP proposal as a done deal.
However, many NJPDES permitted flows were issued without conducting a federally mandated antidegradation review or consideration of cumulative impacts on assimilative capacity.
In some cases, assimilative capacity (i.e. the maximum amount of pollution a river can handle without violating water quality standards) has been over allocated and permits issued with flows and loads that would violate SWQS. Therefore, these flows have no valid scientific or regulatory basis and expansion in current discharges to the permitted capacity is NOT a sure thing or a “done deal”.
While this is more of a WQMP issue than a CAP issue, they are inter-related because both rules apply to permitted flows.
6. The proposal is inconsistent with the proposed revisions to the Water Quality Management Planning rules
The proposal discuses one technical inconsistency with the WQMP rules and how that inconsistency will be addressed.
But the proposal ignores at least two significant policy inconsistencies:
First, the proposed WQMP overall would eliminate the current requirements to remedy any inconsistencies between a proposed WQMP and a NJPDES permit, particularly with respect to conflicting flows. The DEP would now approve WQMP plans that project wastewater flows that conflict with permitted flows and/or can not be handled by the receiving water.
The WQMP proposal creates conflicts and unrealistic development expectations that will result in future NJPDES permitting issues, as well as jeopardizes future water quality.
The proposal also ignores future regulatory constraints on wastewater flows and/or pollutant loadings that may be imposed under the antidegradation review requirements or imposed under the TMDL program.
The proposed CAP changes exacerbate those WQMP problems with respect to exactly what constitutes wastewater flows and loads, by extending the day of reckoning of necessary planning for reaching permitted capacity.
Second, in general, the WQMP proposal relies more heavily on local governments.
The proposed CAP revisions would conflict with that overall approach be eliminating local governments from the requirements to submit CAP plans. Current CAP requirements include the joint participation of both the wastewater plant and local governments.
The proposed CAP revisions are not only inconsistent with the proposed WQMP rules in this regard, but they undermine effective CAP planning.
For example, wastewater authorities lack the mission, jurisdiction, authority, legal control, and expertise to address and manage flow related issues – such as water conservation measures and other land use planning/zoning, infrastructure and physical sewer connections – that impact flows to a treatment plant.
The proposed elimination of local government from the CAP program is ill advised.
We will raise these policy and regulatory corners with US EPA.
We’ll keep you posted on this as events develop.