Phosphorous protocol under fire

Because the Passaic Dischargers want to do the environmentally correct thing, they did the study that the Department of Environmental protection prescribed. Their technical consultants conferred with DEP staff along the way. Now the Department appears to be changing their minds on the study results and reinventing the science that is the basis for phosphorus management.

The department ignored the advise of Najarian Associates who were the consultants hired to study the impacts of phosphorus on the Wanaque Reservoir and who recommended that seasonal limits and monthly averaging be used in determining the enforcement of the limit. The DEP staff are proposing an anytime anywhere limit. DEP declares that because the Passaic River is impaired for phosphorus that all test samples must be measured at the end of the discharge pipe. This ignores the basic biological science of the way phosphorus effects algae and dissolved oxygen, which is the focus of the impairment. Or maybe not, maybe the focus is just imposing a 0.1.

A hearing was held in the Morristown area and the dischargers made their comments. They go along way in explaining the problems with DEP’s policy and implementation of the state’s phosphorus limit of 0.1.

Comments on the Wanaque TMDL By Michael Dimino Superintend Parsippany-Troy Hills August 4 2005

The Township of Parsippany-Troy Hills is very concerned about NJDEP’s proposal to establish a water quality based effluent limitation for phosphorus consistent with our final wasteload allocation (WLA). We understand that our final WLA will be determined later this year; however, the WLA appears to be chiefly driven by NJDEP’s consideration on phosphorus loads delivered to the Wanaque Reservoir via diversions from the Passaic and Pompton Rivers. These diversions are operated by the North Jersey District Water Supply Commission and United Water New Jersey. If such a WLA is established for Parsippany-Troy Hills, an effluent limit of 0.2 mg/l is likely to be imposed. While we applaud the NJDEP for being concerned about the water quality of the Wanaque Reservoir, we are not in agreement with your proposed solution which is biased toward regulating wastewater utilities like Parsippany-Troy Hills. Allow me to clarify what I mean.

First, many local water utilities add phosphorus to their water systems in the form of zinc orthophosphate, an anti-corrosive agent. Obviously, if our drinking water originates with phosphorus, it then becomes part of the total phosphorus load into our sewer systems. To the extent that the water companies contribute to this problem, the NJDEP should be asking their assistance as well to address the phosphorus issues in the Passaic Basin.

Second, phosphorus loading that impacts the Wanaque Reservoir is driven by the withdrawal action of the largest water companies in the region. The NJDEP has allowed these diversions through Water Allocation Permit Nos. 5094 and 5090 which I understand are up for renewal before the NJDEP’s Water Supply Administration. If such diversions are better managed, the phosphorus WLA would be dramatically affected. The NJDEP should hold a public hearing on these proposed water allocation renewals to debate this issue and entertain comments on the matter. I have reviewed comments provided to the NJDEP on July 29, 2005 by Robert Goodsell of Post, Polak, Goodsell, MacNeill & Strauchler, P.A. on behalf of the Warren Township Sewerage Authority. I concur with Mr. Goodsell that a hearing be held on the State’s proposed action to renew the Water Allocation Permits referenced above as such diversions have significant impact to the public. The State should consider the issuing of an NJPDES permit to the North Jersey District Water Supply Commission for their two water diversions with strict terms under the permit to control diversions to minimize the effects of phosphorus on the Wanaque Reservoir. Such diversion controls could dramatically effect the determination of the phosphorus WLA.

Parsippany-Troy Hills is not opposed to doing what is necessary to protect our environment but we are tasked with the responsibility to our constituency to establish a documented technical need for such requirements prior to making a commitment to spend significant taxpayer’s money. In this regard, I understand that the NJDEP established a review committee of professional peers at the Rutgers University EcoComplex to review the findings of the Najarian Associates’ June 2005 Report. This report has been primarily relied upon by the NJDEP to determine the phosphorus WLA for the Wanaque Reservoir. Parsippany-Troy Hills would like an opportunity to review the EcoComplex’s comments on the Najarian Associates report as these comments should be a matter of public record. It is critical to understand the technical basis of the NJDEP’s proposal and such understanding of the technical basis can not be determined without getting the input of all the experts at the EcoComplex on this matter. Moreover, the establishment of technically appropriate phosphorus WLA for Parsippany-Troy Hills must also address the local site specific conditions in our receiving waters in addition to considerations that are driven by concerns to protect the Wanaque Reservoir. Unless all of these technical issues are revealed and understood, we can not support accepting the high costs of phosphorus removal for our treatment plant.

Please understand the full context of the points I just made. Removing phosphorus down to the level of 0.2 milligrams per liter (mg/l) would be a great economic burden for us to absorb, particularly as we are the largest discharger into the basin above the two water intakes. Although we would be able to convert our treatment system to have the ability to biologically remove phosphorus, we are advised by our consulting experts that biological removal of phosphorus would not achieve phosphorus removal consistently below 1.0 mg/l. To allow us to meet the 0.2 mg/l discharge value, we would be required to add chemical treatment using either ferric chloride or aluminum sulphate, also know as alum. To ensure compliance, our operators would add these chemicals very conservatively which would likely result in :1) the need to add other chemicals to address the pH lowing effects of using either ferric chloride or alum and, 2) the discharge to our receiving waters of either aluminum or iron, depending on the selected chemical we ultimately use. Will you then some time from now regulate the discharge of either of these two metals? Aluminum has been shown to have a link to many neurological diseases. Would it not be less of an environmental risk to introduce phosphorus into our waters in lieu of either of these metals? Adding chemicals to control phosphorus introduces yet another water quality issue into the mix, total dissolved solids (TDS). The NJDEP has a TDS water quality standard. Would we risk the chance of incurring a TDS violation by the introduction of chemicals to remove phosphorus? Will the NJDEP in future years require reverse osmosis to remove TDS from our discharge at the costs of millions of dollars to our tax payers?

Regarding sludge impacts, I am very concerned about how Parsippany-Troy Hills’ sewage sludge disposal operation is affected by the State’s proposed initiatives on phosphorus. We are informed by our experts that adding chemical treatment to remove phosphorus will greatly increase the amount of sludge we will need to treat and dispose. Parsippany employs incineration as a means to dispose of its sludge. Incineration is very energy intensive. The chemical sludge that results from the addition of either ferric chloride or alum will dramatically impact our cost of incineration as such chemical sludge is largely inorganic and will not burn as efficiently. This inefficiency translates into significantly more energy use and a significant increase in generation of ash and resulting ash disposal costs.

In addition, Parsippany plays a crucial role to satisfy the sludge disposal needs of our surrounding communities as well as the needs of many local industries that have difficult but treatable wastes to treat. Many of these wastes are food processing wastes rich in phosphorus. If these communities are also required to remove phosphorus, their sludge volumes would increase and their sludges would also be rich in the same inorganic chemical materials that would be more difficult to handle by our incinerators. Treatable industrial wastes that we now allow at our facility may be turned away in the future as many of these wastewaters are rich in phosphorus. So you see, for Parsippany, your proposed phosphorus WLA has compounding effects for us.

As a matter of good public policy, the cost of phosphorus removal should be spread among all those entities that are responsible for the problem after the State determines that phosphorus is enough of a water quality issue to warrant many of the negative environmental impacts associates with phosphorus removal. You have addressed the municipalities with regard to non-point sources of phosphorus with general stormwater permits and you have addressed municipalities with regard to point sources of phosphorus. To be fair, you also need to address the water companies and I do not see that this is being done. Also, in Commissioner Campbell’s July 19 2005 letter, you are encouraging water quality trading. Our intelligence has been insulted by this statement. How can we establish an aggressive phosphorus trading program if we are limited to an effluent concentration of 0.2 mg/l? There is virtually no room to allow phosphorus trading; for to do so, would require us to treat phosphorus down to zero, which is a technical impossibility. For us, phosphorus trading provides the potential to partially finance the huge cost of phosphorus removal facilities. However, the State needs to allow for fundamental elements to be in place to allow the possibility of trading.

And lastly, what about the cost to our taxpayers? Adding such an onerous phosphorus requirement of 0.2 mg/l on Parsippany-Troy Hills would likely require the addition of facilities in excess of $15,000,000 (In actuality, this cost would amount to nearly $25,000,000 to account for financing expenses) in construction cost. Further study is necessary to confirm this number. We are still studying the impact on operation costs, but it is safe to say that our cost of sludge disposal would increase by 25%. In all, we estimate that the cost of phosphorus removal could account for 10% of our entire sewer budget. Clearly, these costs are significant and can only be accepted after we thoroughly see the technical need and after we thoroughly understand the full impact of the above noted environmental trade offs to be better for us and the environment..

Comments of John Hall on behalf of the Passaic Dischargers. August 4, 2005

Introduction It is: • Apparent that nutrient levels exceed standard in the Wanaque Reservoir

• Apparent that the direct cause is pumping operations of various diversions

• Apparent that controlling diversions with far less restrictive requirements on Point sources will fully protect uses and meet standards

• Apparent that this TMDL has major legal and technical flaws that render it in violation of both state and federal law

• Apparent that hundreds of millions of dollars will be spent needlessly if the document is not amended.

This is an Illegal TMDL

• TMDL requires the regulation of the point sources responsible for the WQS exceedances. The municipal point sources do not discharge to the reservoir. Failure to address diversions as point sources or place any regulatory restrictions on operation which is primary cause of standard exceedance violates federal law requiring restrictions on all those that "cause or contribute to WQS violations". One Supreme Court case and Circuit Court III decisions have stated that water diversion causing pollutant discharges must be regulated under the CWA. Diversions were intentionally placed in areas where point sources existed, and should not have been located upstream of major sources (e.g., Two Bridges). The water purveyor is legally responsible for transferring these loads to the Wanaque Reservoir. Municipal entities want to be part of the solution; but , we do not and will not be responsible for the acts of third parties causing violation of federal and state law.(St. Cloud case)

Reasonable restrictions and treatment must be placed upon the diversions. Relocating the Pompton intake above Two Bridges, inconjunction with some regulation of the diversions, in conjunction with treatment of the Passaic intake will achieve all of the TMDL benefits at a fraction of a cost of building TP removal at all POTW.

• DEP has misapplied and modified the proper application of the lake nutrient standards in developing the TMDL. Everyone involved in nutrient regulation understands that nutrient standards are long-term requirements. This is because nutrients cannot cause short term impacts on organisms or algal levels. Recent court decisions confirmed nutrient criteria apply as long term averages. (NRDC v. Muszynski (EPA Region II) 268 F. 2d 91 (2001). (This means that you don't need to regulate nutrients on a daily basis). The TMDL chose to apply the existing WQS as "never to exceed value" without adhering to public notice requirements when one is amending a standard. That is illegal under federal and state law.

• Application of the existing standard as a never to exceed value is contrary to good science that applies nutrient objectives as long term average (60-120 day) conditions during algal growing season. DEP knows that applying the standard as a "never to exceed anytime, anyplace standard" is not the proper means for applying this standard. Standards must have a rational connection to the issue they intend to regulate, including a proper averaging period. Model proved significantly less restrictive limits applied with proper standard application. DEP must submit its new interpretation for public comment as a WQS and obtain EPA approval as required by the Alaska Rule (40 CFR 131.21)

We want the documents that were the basis for concluding it is proper to apply the nutrient standards in this manner. This is required for public comment. We also want the peer review of the TMDL which we are certain must have also addressed this issue. The Commissioner’s refusal to release these documents is a direct violation of state and federal open record and public notice requirements. This TMDL should not move forward until all of the critical documents are provided and DEP corrects the following matters:

• Failure to apply antidegradation requirements to water transfers to limit adverse impacts of the operation violates state law.

• Addresses the state law requiring DEP to demonstrate a reasonable relationship between costs and benefits when imposing more restrictive water quality based requirements. The TMDL shows there is a negligible difference between imposing limits of about 1 mg/l versus limits of about 0.3 mg/l. (Chart) Nonetheless, DEP chose the most restrictive requirement. Failure to demonstrate there is a reasonable relationship between costs and benefits was a clear violation of state statutory requirements. Failure to select options with the least economic impact on NJ communities is inconsistent with state law. Combination of water intake regulation, point/non-point reduction and relocation of Pompton intake greatly improves WQ at a fraction of cost.

Apparently nothing was done to consider alternatives for meeting the TMDL. This is outrageous given the magnitude of costs involved. TMDL should reevaluate various scenarios that are less costly and will result in substantial water quality improvement without burdening dischargers with stringent TP reduction requirements.

• Illegal and improper to apply the LTA as the permit limit. DEP states it uses EPA TSD guidance on proper permit derivation. This requires the use of a CV and estimate of the allowable maximum monthly limit to meet the LTA. Using the default Cv of 0.6 the limits may not be less than about 0.5 mg/l. • The TMDL should not be regulating on concentration but on mass. That is the basic definition of a TMDL.

Technical Issues

• This TMDL constitutes a gross misapplication of scientific principles known for decades regarding nutrient regulation for algal control. • DEP based the TMDL on dry weather conditions for single worst day during non-algal growing season due to existing, unrestricted diversions to the Wanaque. It is irresponsible to derive a TMDL based upon highest single day TP level in non-algal growing season (March) to impose hundreds of millions of dollars in costs. • Nutrient criteria are never single day limits because algae can't respond to single day changes; second, the cause of the maximum day should have been evaluated and controlled as all other readings were much lower. Grossly improper to regulate nutrient limits in this manner as demonstrated by every TMDL EPA has conducted for regulating nutrients (Long Island Sound, Christiana River; Wissahicken River; Chesapeake Bay; Great Lakes) This is not a scientifically defensible means for applying nutrient criteria. • This approach applies nutrient criteria more restrictively than acute standards that can cause immediate death of organisms. Application of the standard in this manner is scientifically indefensible.

We want the technical documents that provide the scientific justification for this position which is otherwise contrary to every federal recommendations we have ever seem on nutrient regulation.

• Performance data shows that peak pumping during winter/spring is primary cause of violations. Better management of diversions would produce much lower TP levels in the reservoir. Modeling should review this option. Addressing the single maximum day (March 31, 2002) would allow about a 15% increase in the TMDL all by itself.

• Modeling confirmed that limiting dischargers to about 1 mg/l, relocating the Pompton intake and requiring 40% NPS reduction will produce benefits essentially equivalent to the proposed alternative. No significant environmental benefit from achieving an average algal level of 12 ug/l versus 15 ug/l in the reservoir. Modeling cannot even reliably distinguish between these levels. Both are considered excellent water quality. Both will avoid significant algal blooms.

• Margin of safety/ reserve capacity is arbitrary. The model is well documented and is based upon a series of worst case assumptions. The model states it over predicts TP levels. There is no demonstration of the degree of uncertainty remaining and therefore no basis to select the MOS or RC. In these circumstances, normal practice is to observe that there is already enough conservatism built into the process. The acceptable limits should be at least an LTA of 0.5 mg/l which should translate into a permit limit of at least 1 mg/l

• TMDL not “necessary to meet WQS”. Many years no diversions and therefore there are no loads from the PS. In higher flow years, there are no significant WQ problems. Limits, if applicable, may only be imposed where needed for achieving standards. This TMDL applies limits regardless of need and therefore is arbitrary and capricious.

Summary.

1. Release the relevant documents. 2. Apply the standard in a proper manner. 3. Impose regulations on the diversions, including relocation and treatment. 4. Assess how combination of PS and diversions controls may be used to achieve the WQS most cost effectively.