Phosphorus Fight: Balancing the Costs of Environmental Protection

The town is about to embark on an expensive project, courtesy of a federal mandate requiring the state to address high levels of phosphorus in its rivers and streams.

But town officials are concerned that the plan presented by environmental officials could come with rapid and steep costs to Southington taxpayers.

Garry Brumback said Thursday that the federal mandate outlined in the Clean Water Act requires the town to invest tens of millions into a project that would reduce the phosphorus discharge from the to unrealistic, if not unreasonable, levels within the next five years or face stiff fines.

“It’s an approach that they have not looked at holistically,” Brumback said. “This is something that could cost us $30, $40 or even $50 million to complete with no real science to support that it would even promise a solution.”

Under the mandate, which is being implemented and enforced by the state Department of Energy and Environmental Protection, Southington is one of four towns within the Quinnipiac River Watershed that will be required to drastically reduce their phosphorus discharge levels. The current plan presented by the DEEP calls for a maximum discharge level of 0.2 mg/L.

The problem must be addressed, Brumback said, but the town is moving forward in partnership with agencies in Cheshire, Meriden and Wallingford to challenge the suggested standard.

“We’ve heard that the effort is designed to return the levels to where they were during the Colonial period. They are asking us to reverse 250 years of pollution in just a five-year period,” he said.

The problem is a Catch-22 for the town. Town Councilman John Dobbins said late last week that the easiest and most cost effective solution would be the use of metal salts to counteract the phosphorus, but doing so would leave the town susceptible to the next phase in water clean up efforts — the removal of metal salts and pharmaceuticals — and will lead to even more hefty costs down the road.

As a result, the town is facing a steep cost now, a moderate cost annually and another unknown cost in the next five to 10 years. Brumback said the proposed discharge levels would create complications with the current denitrification system.

“Phosphorus is essential in the survival of organisms currently used to reduce nitrogen levels in the water,” he said. “We just completed the denitrification plant not even five years ago. We committed a large amount of capital then and now we are facing an even bigger challenge.”

Brumback said the town will instead be looking to fight the mandate and is ready to propose a discharge permit level of 0.7 mg/L, which would significantly reduce costs.

But staff with the DEEP said phosphorus contamination is a problem that has already been ignored for decades and don’t appear willing to budge.

“We have already worked with the Environmental Protection Agency to reduce requirements and at this point, all permit levels are being phased in. We are not asking towns to reach the level immediately, but are giving them five years to get to that point. It will take longer than that to solve the problem,” said Betsey Wingfield, bureau chief at the Water Protection and Land Use Bureau of the DEEP.

The EPA is requesting that phosphorus enrichment levels, or ER, of close to 6.0, but the DEEP has worked out a plan that will aim to lower the ER to levels between 6.0 and 8.4, just 0.1 short of a level considered to be at risk. According to the DEEP data, parts of the Quinnipiac River have reached levels in excess of 10 in recent years.

“This is a problem we need to address and it needs to be addressed now,” Wingfield said.

EPA Standards and the Federal Clean Water Act

The reorganization of the Clean Water Act in 2004 created strict limits on the nitrogen levels allowed in salt water bodies as well as creating set of new regulations on phosphorus levels that were set by the federal Environmental Protection Agency. These standards were designed to combat growing chemical pollution in water sources throughout the country.

The state DEEP, an agency which answers directly to the EPA, proposed a strategy in 2009 to address phosphorus levels in Connecticut, according to the department’s website. That strategy has changed to incorporate concerns expressed by the EPA and other stakeholders and in 2011, a final plan was rolled out for consideration.

“It was very much a complicated and scientific process,” said Wingfield. “Using existing data collected within the past five years, we know the rivers and streams that are at risk and how much their levels must be reduced in order to meet a safe phosphorus goal.”

“If left unaddressed, the data says that the enrichment threshold will reach a point where water quality and biological communities in those systems will see a significant change,” she said.

Wingfield said towns in Connecticut have been challenged to meet goals regarding both nitrogen level and phosphorus level concerns, but each is a separate problem that affects two entirely different bodies of water.

Nitrogen and phosphorus are both essential nutrients that are naturally existing within water sources, according to the DEEP website, but when the levels surpass a certain point then it can have adverse effects on ecosystems.

Southington was one of many towns following the 2004 reorganization that were required to immediately address problems associated with the Long Island Sound. Nitrogen levels had reached a point where it was causing algae to reproduce so rapidly that it was creating an imbalance in oxygen levels and causing other plant life and sea creatures to suffer.

“It is an issue specifically associated with salt water,” Wingfield said. “Phosphorus contamination is a problem that directly impacts fresh water and it has had an impact on many of Connecticut’s fresh water rivers and streams, including the Quinnipiac River.”

According to the data, when phosphorus levels reach an ER of 8.5 and above, then it creates a problem known as “green water.” The name comes from a change in the water’s chemical balance caused by an infiltration of algae that strips the water of it’s oxygen and leaves a film that makes the water appear green in color, she said.

When this happens, it has long-term negative effects on the ecosystem as well as on the water quality and can make plants, animals and even humans sick.

“Nutrient enrichment has also been identified as one of the most pressing water quality issues facing the nation as a whole,” the DEEP website explains. “As a result, the federal Environmental Protection Agency has increased pressure on all states to take aggressive action to limit the quantity of phosphorus being discharged to surface waters.”

In New England, the EPA has mandated that states establish limitations on phosphorus in all wastewater discharge permits where the potential exists for the discharge to contribute to the impairment designated uses in downstream waters.

Officials in Southington and Meriden have countered that while science does suggest it is an issue that needs to be addressed, there is some dissenting opinions regarding what levels should be considered acceptable. Brumback said science has shown that addressing the problem is important, but that there is no major difference between reducing the level to 0.7 mg/L of water discharge of 0.2 mg/L of discharge.

The EPA, however, disagrees. If the problem is not addressed in a more rapid manner, it could leave a problem that is far more costly to fix down the road, Wingfield said.

“There has been a lot of hope from towns that after several years of the proposed regulations, there could be a opportunity to allow for a higher discharge than we are currently proposing, but the likelihood is we may have to increase the restrictions even further,” she said.

The Growing Cost of Compliance

With an anticipated permit level of 0.2 mg/L of phosphorus, Brumback and Dobbins said the town is looking at an initial cost of $30 million to $50 million in order to upgrade the current facilities with the needed technology.

Dobbins, who spoke about the new phosphorus challenges during dinner on Jan. 19 and at the Town Council meeting Monday, declined to comment further on costs because “a lot, including costs, remains unknown at this point.”

Brumback said the cost of phosphorus removal would be upwards of $500,000 per year in addition to the initial start-up costs. If the permitted level were set at 0.7 mg/L instead, Brumback said the town could manage to meet the standard at a cost that could be as low as $50,000 for technology and $50,000 per year after that.

The latest EPA mandate comes on the back of a recently completed denitrification plant construction at the town’s Water Pollution Control Facility, a project that the town bonded at $14.5 million just six years ago. The town will be continuing to pay off those bonds for the next decade, officials said.

“We’ve had no limits to phosphorus levels until now. We are just coming off the denitrification requirement set forth about five years ago and now we are facing another mandate that will come with a significant capital expense,” Brumback said.

Southington isn’t the only community facing these growing costs either. Similar costs are expected for upgrades to the Cheshire Water Pollution Control Facility, which officials anticipate would see expenses of up to $30 million, as well as through the Wallingford Water and Sewer Department, where costs could even exceed those in Southington.

In Meriden, where the permit limits are expected to be even more stringent with just 0.1 mg/L of phosphorus permitted, officials are concerned that the state is placing unfunded mandates that will bleed the taxpayers dry.

“We have already committed $46 million to upgrades at the facility to help address phosphorus removal and depending on the expectations we will be held to, it could mean as much as $15 to $20 million more,” said David Lohman, director of Public Works in Meriden. “We don’t know yet what the costs will be.”

Lohman said Thursday that he is concerned that if the permit levels remain at the levels suggested now, it will mean considerable increases for tax rates in the community.

Meriden isn’t alone in this challenge either. Cytec Industries Inc., located on South Cherry Street in Wallingford, also hosts a water treatment facility and is expected to meet the 0.1 mg/L standard as well. A message seeking comment was not returned on Thursday.

“Ultimately, we are being left to meet these standards set by the EPA, but it does not look beyond the technology available. It’s not a fair assessment,” Lohman said.

Alternative Suggestions to the Stringent Standards

Southington officials are prepared to challenge the permitted phosphorus level of 0.2 mg/L when the town receives its draft permit from the state.

Under permit structure through the state DEEP, Wingfield said each town is issued a draft permit with the proposed levels and timeline. The municipality will then be given 30 days to challenge the proposal, at which time a hearing would be established for the town or city and give them the opportunity to plead their case.

The EPA would also have the ability to attend the hearing and could object if they believe the town’s proposal is aggressive enough to meet the standards that have been set. If there is an objection to the permit request of the town, the original proposed standard would be ratified and the town would be given a five-year period to meet that standard, Wingfield said.

Brumback and Lohman expect that Quinnipiac River Watershed towns will receive the draft permit within the next month, but Wingfield said no date has been set to hand out draft permits yet.

“We intend to propose this work be integrated through incremental steps that are scientifically based and financially responsible,” Brumback said. “If we are unsuccessful, then we will take further action.”

A second solution to the problem may lie in the state’s legislators, Brumback said. Through state legislation, he is hopeful that the town could receive grant funding to assist with the phosphorus removal process.

Although there are grants available under the Clean Water Act, the wording in state applications does not allow for funding specific to the phosphorus removal process alone. There are 17 state legislators in the four towns that fall within the Quinnipiac River Watershed, Brumback said, and each has been contacted in regard to this latest challenge.

Brumback and Council Chairman Edward Pocock III, who spoke briefly about the phosphorus challenges during his State of the Town presentation, each said they are hopeful that legislators could pass a bill during the upcoming legislative session to assist towns in paying for the currently unfunded mandate.

Several Southington legislators said Thursday that they are committed to assisting the town with this transition, but were still looking into the situation and could not comment further.

Should each of these efforts fail, Brumback said the town would then consider filing a lawsuit against the state DEEP and EPA with a hope that it would force mediation and give the town a more realistic set of goals over the next several years.

The Upper Blackstone Lawsuit and Litigation as an Option

When the federal EPA refused to negotiate “a reasonable standard” with the Massachusetts-based Upper Blackstone Water Pollution Abatement District after setting the standards in 2008, the district took legal action and filed a a lawsuit with the First Circuit Court of Appeals.

The courts did not hear the appeal, but the district won a small victory when a three-judge panel ruled earlier this month that the EPA would have to enter mediation with the district regarding the proposed limits.

The Worcester Telegram and Gazette reported that the Millbury-based treatment plant which serves the greater Worcester area would have seen immediate costs of nearly $200 million to upgrade technology and would have faced additional operating costs of $5 million per year in order to meet compliance with the EPA-set limits.

Worcester City Manager Michael O’Brien told the Telegram it would have resulted in an additional $225 in annual water fees for customers:

“The court’s direction is validation of the Upper Blackstone’s stance, and falls in line with the city’s argument that the issuance of this permit is based on dubious science and will cost ratepayers hundreds of millions of dollars if implemented,” O’Brien said yesterday. “Science must inform the issuance of these permits, and when it does not, we as public officials must advocate on behalf of the ratepayers.”

Brumback said he has also heard rumblings of a similar lawsuit that may be filed in New Hampshire based on the growing and expensive mandates set forth by the federal EPA.

While the EPA oversees implementation of permit requirements in both Massachusetts and New Hampshire, the state DEEP is considered a “delegated agency” by the federal government and is responsible for working alongside the EPA to enforce federal standards, according to DEEP spokesman Dennis Schain.

Both Brumback and Lohman said that if more is not done to make the permit limits reasonable for local municipalities, they would be forced to consider legal action against the DEEP and EPA as well.

“It’s not something we want to do. It’s a last resort,” Brumback said. “Litigation is both rebellious and expensive and we remain hopeful that we will not have to go that route.”

In the meantime, the town will move forward with at the town’s Water Pollution Control Facility. The council approved the study on Monday and Southington is seeking a 55 percent reimbursement through state grants.

Although the study includes a phosphorus exploration component, Brumback said it was a study that would have to be done regardless of the new permit limits. The added component will allow the town to prepare for the future, regardless of what the phosphorus permit limits may be down the road.

“There is no doubt in my mind that some limit will be set,” Brumback said. “At some point, we will need to begin phosphorus removal. We just don’t know for sure what those limits will be yet.”