Clean Water Advocacy - Newsroom - AMSA in the News
Water Pollution
Regulatory Conflicts Require Cooperation Of Sewage Plant,
Drinking Water Officials
SAN DIEGO--Officials at wastewater treatment plants and at drinking water facilities need to work together to resolve problems arising from conflicts between the Safe Drinking Water Act and the Clean Water Act, speakers at a clean water legal seminar said Nov. 10.
The problems occur because wastewater treatment plants often discharge into
the same bodies of water that serve as drinking water sources for other areas.
One such case involves a challenge by the Greater Cincinnati Water Works over a
Clean Water Act permit issued by Kentucky in May for construction of a
wastewater treatment plant that will discharge into the Ohio River, the source
of Cincinnati's drinking water. The treatment plant's outfall will be 11 miles
upstream from the intake point for Cincinnati's drinking water, Jack Bender, the
attorney representing the Kentucky Environmental and Public Protection Cabinet (EPPC),
said. He spoke at a Clean Water Law seminar sponsored by the Association of
Metropolitan Sewerage Agencies.
Cincinnati contends that a new sewage treatment facility being constructed by
the Sanitation District No. 1 of Northern Kentucky to address sewage overflows
will result in the discharge of known pollutants, including pathogens, that are
harmful to human health. The main bacteria of concern are cryptosporidium and
giardia, Bender said.
In addition, the Kentucky Pollutant Discharge Elimination System permit does not
protect against other pollutants, such as pharmaceuticals and personal care
products, Bender said, citing the Cincinnati claim. The claims are in the form
of an administrative challenge that will be heard by a hearing officer of the
Kentucky Environmental and Public Protection Cabinet in July 2005.
Bender said the case raises a number of important questions, such as to what
extent a discharge permit for a publicly owned treatment works must be
"conditioned" to protect downstream public drinking water supplies.
"The first question is whether there is a reasonable potential to cause or
contribute to an exceedance" of water quality standards, he said. "I just don't
think the science is there to make that determination on a case-by-case basis
especially when there is no numeric water quality standard."
Collision of Federal Water Laws
The case is typical of where the Safe Drinking Water Act and the Clean Water Act
collide, attorneys at the seminar said. For example, the Safe Drinking Water Act
requires that significant new discharges must be at least 25 miles upstream from
a drinking water intake pipe. The Clean Water Act only requires a five-mile
separation.
The Ohio River is one of the largest in the United States with an average flow
of about 52,000 million gallons per day (treatment plants measure their
discharge rate in millions of gallons per day, mgd). More than 30 drinking water
plants use the river as source water, and each one is downstream from a
treatment plant, Bender said, adding that neither EPA Region IV in Atlanta,
which covers Kentucky, nor Region V in Chicago that covers Cincinnati, objected
to the permit. Because the river is so large and has such a massive flow, any
discharge of pollutants from the Kentucky side is bound to be inconsequential
that far downstream, he and others said.
Bender also pointed to an October 2003 memo from the U.S. Environmental
Protection Agency by Tracy Mehan, the former assistant administrator for water,
indicating that "a core principal of source water protection is to assure that
no public water system should have to provide more drinking water treatment
other than that which is necessary to address naturally occurring pollutant
concentrations."
The memo continues that, in order to reduce the cost of drinking water
treatment, waters that are used as sources should have public drinking supply as
their designated use. With public drinking water supply as a designated use,
water quality monitoring, permit effluent limits, and the total maximum daily
load processes--all Clean Water Act requirements--should apply.
Bender said the memo suggests the Safe Drinking Water Act can be an "independent
driver" of National Pollutant Discharge Elimination System permit conditions.
However, the U.S. Court of Appeals for the District of Columbia ruled in 1988
that EPA cannot impose permit conditions unrelated to the discharge itself.
Margie Nellor, assistant department head for technical services at the
Sanitation Districts of Los Angeles County, said the Northern Kentucky
sanitation district should monitor and discern pollutant levels in the river.
They may find that they are only "de minimis" contributors, which would free
them from additional permit requirements that could result from the Cincinnati
case.
Conflict of Water Laws in California
Similar conflicts resulting from the two laws are becoming more common in
California as well, several officials said.
Roberta Larson, counsel for the California Association of Sanitation Agencies,
said publicly owned treatment works in that state are required to meet water
quality standards at the point of discharge that are more stringent than those
that apply to drinking water from a tap. The problem is particularly challenging
for "effluent dependent waters" (EDWs), which are streams that are largely
influenced or sustained by wastewater discharge and are not considered "natural
waters."
While these EDWs, as they are called, have a variety of uses, drinking water is
not one of them, Larson said.
"Some people think we're saying they don't have value," she said. "That's not
true. It's just not drinking water. We're not drinking municipal wastewater
effluent."
Problems arose, especially in the last few years, when EPA in 2000 disapproved
the states Tributary Statement after 28 years, which was an effort to assign
uses to the major river tributaries generally without conducting case-by-case
analyses on each one, Larson said.
The result was that tributaries that previously had not been designated as
drinking water sources were reclassified as drinking water sources, she said.
California later adopted its toxics rule, which imposed strict requirements
based on a cancer risk that assumed a person would drink two liters per day for
70 years. The rule did not consider economic feasibility as the Clean Water Act
does.
Source Water Protections
The state also adopted a policy that all waters should be considered sources of
drinking water, but excluded certain streams that collect municipal wastewater,
thus eliminating most EDWs, Larson said.
CASA and Vacaville, Calif., are suing the state over the validity of assigning
designated uses based on the tributary statement, the sources of drinking water
policy, and the basin plan. The tributary statement, for example, does not
designate uses, the cities will argue, and the policy is not being properly
implemented.
However, Larson said, the real issue is that money is being spent on litigation
when it is not clear that any of the decisions are actually resulting in cleaner
water.
Elaine Archibald, a consultant for the California Urban Water Agencies, said
some water agencies have the luxury of "very pristine sources" of drinking
water. Most do not, though.
Source water protections, she said, are also designed to provide protections
against contaminants that water suppliers do not know about as well as the ones
they do.
The Bay Delta Basin addresses water quality for the Sacramento and San Joaquin
river basins, which serve most of the state's water needs. The plan, however,
has objectives to protect beneficial uses, she said, but it does not have
objectives setting limits or requiring monitoring for key contaminants, such as
organic carbon, pathogens, and nutrients.
As the state's population grows, more pressure is put on source waters, which
puts more demands on suppliers, Archibald said.
The long-term solution, she said, is a comprehensive drinking water policy for
the Central Valley that can be amended into the Basin Plan, a goal she said
would not be achieved until at least 2009.
In the meantime, she said, water agencies and publicly owned treatment works
should be working together to hammer out solutions that may include pollutant
trading and changes, such as convincing agricultural drains to be rerouted away
from drinking water sources.
"We need to identify areas where drinking water is not being protected, and we'd
like to see more monitoring for constituents that we do care about," she said.