News

The Battle Over Biosolids
Kern County, Calif., ban on Los Angeles biosolids delayed

In what is looking like a landmark case, the City of Los Angeles won the first several rounds of its lawsuit against Kern County, Calif., for its ban on imported biosolids.

In November, Los Angeles U.S. District Court Judge Gary Feess issued a preliminary injunction that stops the county’s ban on biosolids from Los Angeles. In October, the court also denied Kern County’s request to move the case to the U.S. District Court in Fresno, Calif., and chose not to dismiss four of the six causes listed in the lawsuit.

The City of Los Angeles, several Southern California counties and agencies, and biosolids haulers filed the lawsuit in August challenging Measure E, which was passed overwhelmingly by county voters in June 6 elections.

Judge Feess ruled that a preliminary injunction that stays the ban while the case awaits trial is justified because Measure E is likely illegal on three separate grounds — it violates the Commerce Clause of the U.S. Constitution by discriminating against biosolids from metropolitan Los Angeles, it undermines California law that mandates recycling, and it exceeds Kern County’s authority to regulate biosolids.

The court also found “no evidence at all” of environmental harm to Kern County from the two farms that use biosolids. Kern County ban supporters cited the unknown consequences of contaminants in biosolids on groundwater and the risk that the reputation and safety of the region’s agricultural output would be compromised as the reasons Los Angeles biosolids should no longer be accepted as fertilizer.

In the injunction, Judge Feess stated that “while applying sewage sludge to agricultural land may provoke a visceral response in lay observers, the available evidence suggests that the practice has been undertaken safely throughout the United States without any indication of detrimental environmental or health impacts, and indeed is the most environmentally sound method of managing the material.”

Los Angeles sends 99% of its biosolids, treated to Class A standards, to the 1900-ha (4700-ac) Green Acres farm in the county. The city purchased the farm in 2000 and land-applies biosolids to grow cattle feed.

In the lawsuit, the plaintiffs had asked the federal court to invalidate Kern County’s ban, saying it violates the California Integrated Waste Management Act and federal commerce laws.

If the ban were made effective, as Measure E mandates, Los Angeles would truck its biosolids to a farm in Arizona at a cost of up to $55/tonne ($50/ton), compared to the $30/tonne ($27/ton) it costs to send biosolids to Green Acres.

“The plaintiffs have introduced evidence that Measure E was intended to specifically burden out-of-county economic interests,” Judge Feess said in the injunction, pointing to the campaign behind the ballot measure that “included entreaties to ‘Keep L.A. Sludge out of Kern County’ and ‘It’s time we tell L.A. that we’ve had enough.’”

“Biosolids have only improved the environment in Kern County, and there is no basis for this ban,” said Rita Robinson, director of the Los Angeles Bureau of Sanitation. “Kern County’s action is even more ironic when you consider the fact that cities in Kern County like Bakersfield, Shafter, Taft, Wasco, and Delano currently land-apply their Class B biosolids, and yet the Kern County ban does not apply to them.”

The city has also paid for the negative perception of its farmed biosolids in other ways. In May, when it seemed county voters would approve the ban, the city approved spending $850,000 on outside lawyers for the lawsuit, and it had already spent more than $16 million at wastewater treatment plants to bring its biosolids up to Class A, exceptional quality standards to satisfy Kern County regulations.

“We have a big investment in our farm,” said Roger Tim Haug, deputy city engineer for the City of Los Angeles. “It’s our main method of biosolids management, and it’s also the lowest-cost option for us.”

— Cathy Vidito, WE&T

Nutrients, particularly nitrogen and phosphorus, consistently rank as one of the top three reasons for water quality impairments nationwide. In fact, as many as half of the nation’s waters do not adequately support aquatic life because of excess nutrients, according to the U.S. Environmental Protection Agency (EPA). Chronic symptoms of overenrichment include low dissolved-oxygen levels; fish kills; cloudy, murky water; and depletion of desirable flora and fauna. Yet no national water quality criteria exist for nutrients, because the levels that lead to overenrichment problems vary from one region to another due to geographical variations in geology, climate, and soil types.

To better protect waterways against such adverse effects, EPA issued a series of documents in 2001 and 2002 to help states set nutrient criteria for different ecoregions and waterbody types. In them, the agency divided the country into 14 nutrient ecoregions and developed criteria for different types of waterbodies, including lakes, reservoirs, rivers and streams, wetlands, and estuarine and coastal waters.

To date, virtually all states have submitted plans to EPA outlining how they intend to adopt nutrient criteria into their water quality standards, but only a handful have actual numeric standards in place based on EPA’s criteria, according to the agency’s latest tally. Roughly a third of the states have collected most of the information they need and are getting ready to move forward with some final numbers through a regulatory or legislative process for at least a certain class of waters, said Ephraim King, director of the Office of Science and Technology in EPA’s Office of Water. The other two-thirds present a more mixed picture and are at different stages in the process of collecting data and conducting the necessary statistical analyses to determine specific numeric values.

“States are taking these nutrient criteria very seriously, but it’s not as easy as people thought it was going to be,” pointed out Linda Eichmiller, deputy director of the Association of State and Interstate Water Pollution Control Administrators (Washington, D.C.). The numbers that EPA put out were very low, and “we’re trying to balance implementation with common sense.”

The criteria that EPA published in 2000 “are different from the criteria we normally publish,” acknowledged Jim Pendergast, the agency’s national nutrient program manager. Usually, EPA looks at how a particular chemical or compound affects life, and that generally applies across the country. “There’s very little difference between what would kill a fish in Massachusetts versus what would kill a fish in California,” Pendergast noted. With nutrients, on the other hand, the chemistry and shape of a body of water really matter.

For example, “you could have a lot of nutrients in a waterbody that’s very turbid because of dirt, and you have no algae,” Pendergast explained. “You can have another waterbody like a very clean lake, and just a little bit of nitrogen and phosphorus will cause a lot of algae. Figuring out what those factors are that make algae go wild based on the amount of nitrogen and phosphorus in the waterbodies is where the technical challenge is.”

Nutrients are “a very tough but very significant problem,” King acknowledged, “but we want to emphasize the importance of moving ahead as quickly as possible.” He noted that nearly every state has listed waters for nutrients, with roughly half of them listing more than 100 waterbodies as impaired with nutrients.

Narrative Versus Numeric Criteria
So far, none of the states has adopted EPA’s criteria, which were based on background levels unimpacted by manmade nutrient inputs. Instead, the states have chosen to use them as a starting place in developing their own criteria for local conditions, “which is fine,” King said. However, in working with states to overhaul their water quality standards to address nutrients specifically, EPA is emphasizing the adoption of new numeric nutrient criteria, rather than the narrative criteria states have in place.

Narrative standards are basically water quality standards that specify a clean water goal but essentially leave it up to the permit writer or person developing the total maximum daily load to assemble site-specific data and then develop appropriate permit limits on a site-by-site basis, according to King. “That process has been working, but the challenge is that it’s quite labor-intensive and not the most efficient way of getting nutrient limits in place,” he said. Consequently, EPA has been encouraging states to adopt numeric nutrient standards, so that “all a permit writer has to do is look up that standard and apply it in a specific permit,” King noted. “We believe numeric nutrient standards simply work better and faster, are clearer, and allow you to measure more specifically how you’re doing,” so “we’re trying to move beyond the narrative baseline in place to specific numeric standards that allow states and stakeholders to figure out where they are.”

Affordability Issues
Once states adopt standards, a big question that arises is, how do they implement them?

“One of the toughest parts is you can get to the point where you can develop scientifically defensible criteria, but the numbers are really low,” said Mike Suplee, an environmental science specialist at the Montana Department of Environmental Quality. For example, commonly encountered numbers in Montana’s draft criteria include 0.03 mg/L total phosphorus and 0.3 mg/L total nitrogen. “In a lot of cases, we have to figure out what do you do if treatment technologies aren’t there to meet that, or they’re too expensive,” Suplee said.

Washington state faces a similar challenge. As in many western states, “we have a lot of small streams, and there’s not much dilution,” explained Richard Koch, a senior environmental engineer in the state’s Department of Ecology. Moreover, most of them flow through small towns of limited capacity, without the funds to address these problems. “As a regulator, it just makes life very interesting and challenging,” he said.

Further complicating matters is the multisource nature of nutrients. Typically, regulators focus first on point sources, such as wastewater treatment plants, implementing new limits through water pollution control discharge permits. But the very low, stringent criteria being developed could drive such facilities to meet some virtually impossible numbers on effluent quality and still not solve the nutrient problem. A case in point is Kansas.

“It may be necessary to go as low as what EPA’s criteria is calling for,” admitted Mike Tate, chief of technical services for the Bureau of Water in the Kansas Department of Health and Environment. “However, in a state like Kansas, and throughout most of the Midwest, most of that nutrient source comes from nonpoint sources.” Consequently, Kansas has taken the approach of establishing technology-based treatment numbers for its wastewater treatment facilities, requiring that they meet those limits as plants are upgraded or new ones are constructed. Plants not currently being upgraded or constructed must submit a financial study and schedule to the state on when they will meet the limits.

In this way, “we’re starting to reduce nutrients now, working with treatment plants to do what they can without forcing them to probably meet impossible limits,” Tate said. “We’ve tried to reach a balance of what we believe treatment plants can reasonably and rationally do at this time, and that should be sufficient as we work then on the bigger piece of the puzzle, which is nonpoint sources.”

National EPA Strategy
EPA has developed a four-part strategy to reconnect with states on nutrient issues and help them get past barriers, real or perceived, that are standing in the way of adopting numeric nutrient criteria into their water quality standards, according to Pendergast. Feedback from the states on what they need to make further progress provided the underpinnings of EPA’s strategy, which includes

• assisting states in answering implementation questions that crop up and understanding better how the standards could affect permitting and other Clean Water Act-mandated processes;
• building capacity by offering states technical expertise on demand in collecting and analyzing water quality data, as well as financial assistance;
• providing further guidance on how to develop nutrient standards for estuaries, coastal waters, and wetlands; and
• reaching out to the public to help states explain the consequences of excess nutrients and why the public should care.

For more information on EPA’s nutrient criteria, see www.epa.gov/waterscience/criteria/nutrient.

— Kris Christen, WE&T

Redevelopment Drivers
EPA, state voluntary cleanup programs, and other organizations focus brownfields efforts on assessing and returning properties to use and creating jobs. The federal program was established in 1995 to empower states, communities, and other economic redevelopment stakeholders to work together to prevent, assess, safely clean up, and sustainably reuse brownfields.

In past years, brownfields sites “were actively avoided because of the unknowns,” according to Sven–Erik Kaiser, team leader in charge of policy in EPA’s Office of Brownfields Cleanup and Redevelopment. The key to brownfields redevelopment is Phase 1 assessment, he said. Getting enough financial support for assessments “is the initial issue for communities,” he said. Currently, EPA awards about $70 million per year through about 250 competitive assessment, cleanup, revolving-loan fund, and job training grants.

Merrimack Valley, Mass., has a legacy of industry and manufacturing that can be traced back to the earliest era of the Industrial Revolution. The Merrimack Valley Planning Commission (MVPC) has received two brownfields assessment grants from EPA.

“Fundamentally we now have a better handle on how many sites there are and the complexity of those sites,” said Alan Macintosh, assistant director of MVPC, noting that the region literally is “saddled with hundreds of sites” that suffer a range of contaminants, from petroleum products of all kinds to volatile organic compounds, heavy metals, and arsenic.

However, it will be some time before Merrimack Valley enjoys water quality improvements resulting from realized brownfields cleanups. “It was eye-opening for us to realize it is a substantial investment of time and money to return sites to productive reuse,” Macintosh said. MVPC will be applying for low- or no-interest revolving loans to assist individual communities with paying for site cleanups.

Addressing Water Quality and Watersheds
Brownfields range in size and complexity from corner gas stations to large tracts of former industrial properties. The cost of an average brownfields cleanup, according to Kaiser, ranges from $600,000 to $700,000. 

The federal program has launched creative initiatives to help communities address larger areas, such as entire watersheds and ports. The Mined-Scarred Lands (MSL) and Portfields initiatives are demonstrating how brownfields assessment grants and program funding can be the key to addressing some of the nation’s most difficult to address brownfields properties.

In many streams and rivers throughout mining country — Appalachia and the West — acid mine drainage (AMD) has taken its toll on the environment, primarily through significant water quality impacts and in reducing the viability of land and property values.

“There are thousands of miles of streams in coal country impacted by AMD,” said Allen Comp, brownfields coordinator and the U.S. Office of Surface Mining (OSM) Vista Initiative coordinator. “The money needed to address all of them is in the billions.” Though mine pollution can be manageable at individual sites, “if you aggregate these sites on a watershed basis, it is sufficient to compete nationally for brownfields money,” he said.

Deposits of harmful metals contaminants in streams and aquifers can overtake a watershed, as is the case in West Virginia’s Kelly’s Creek Watershed. Just 32 km (20 mi) southeast of Charleston, this small mine-abandoned community was left with a lot of “orange creeks and poor people” when the coal industry collapsed after World War II, Comp said. But because of its location close to the capital, today it’s an ideal spot for a bedroom community.

Kelly’s Creek watershed received a brownfields assessment grant in 2002 and MSL program funding and technical support in 2004, and has begun to assess the extent of impact to the watershed and the sewer infrastructure needed to support eventual development of a 2830-ha (7000-ac) parcel for residential use. While cleanup and reuse are several years ahead, Kelly’s Creek is an example of how brownfields grants can lead to addressing some of the most polluted waters of the United States.

“Brownfields in coalfield country works in specific places, not everywhere,” Comp said. “But if you can get it, it is the most useful source of assessment dollars that you can find anywhere.”

Comp said that the brownfields assessment grants are pivotal to addressing mine-scarred areas. Through OSM’s Abandoned Mineland Reclamation Fund, communities can receive funding to construct AMD treatment systems, and they also can apply for Clean Water Act funding. However, OSM requires the community to provide much data on the extent of the pollution, and the fund does not provide assistance for assessment. “The challenge in dealing with AMD is you have to have the chemistry and flow data quarterly for at least 1 year, preferably 2, before you can design treatment,” Comp said.

Because of brownfields grant funding, Kelly’s Creek stakeholders “now have a solid, modern take on what their challenges are,” said Andrew Kreider, brownfields project manager for EPA Region 3.

Transforming Waterfronts
In the Port of Bellingham, Wash., EPA’s Portfields Initiative is helping to transform an industrial port into a mixed-use waterfront. Brownfields assessment funding led to cleanup of mercury-contaminated marine sediments in a federal channel, addressed mercury pollution, improved stormwater controls, and removed obsolete structures that were potential sources of contamination to Bellingham Bay. In addition, development of a clean ocean marina, restoration of 11 ha (28 ac) of salmon habitat, and construction of shallow intertidal habitat are included in the waterfront plan.

“Each time we clean up a site, it results in major water quality improvements,” said Mike Stoner, environmental director for the Port of Bellingham. For example, a 1996 sampling identified an 80-ha (200-ac) area that failed Washington sediment standards. After a 2-ha (5-ac) hot spot on the sea floor was capped, only 1.2 ha (3 ac) exceeded the limit. Subsequent stormwater best management practices (BMPs), including natural recovery processes, have improved the health of the bay further.

“We have also shown a very dramatic increase in sediment quality as a result of stormwater controls,” Stoner said.

“It’s all great news, because it lets people know that [the brownfields assessment money] being spent is really having an effect,” Stoner noted.

Creating Smarter Communities
The Atlantic Station project in midtown Atlanta, the largest urban brownfield redevelopment project in the United States, proves that not only can a huge industrial parcel (formerly owned by American Steel) be cleaned up and transformed into a busy mixed-use growth area for the city, but it also can become an affordable urban community and serve as a case study for sustainable brownfields reuse and environmental cleanup.

Atlantic Station is a 56-ha (138-ac) project 10 years in the making. It includes 557,000 m2 (6 million ft2) of office space, more than 3000 residential units, 186,000 m2 (2 million ft2) of retail space, 4.5 ha (11 ac) of public recreation, and green space.

The project incorporates groundwater monitoring, stormwater BMPs, transportation reduction measures, and “smart growth” principles (“green” building, drip irrigation, measures to address light pollution, and more) that set it apart and ahead of other developments of its size.

With land and property in Atlanta and many other real estate markets being sold at premium prices, developers are purchasing brownfields when it is economically viable to do so. Atlantic Station is such a project. “At the end of the day, it’s going to have a higher value,” said Brian Leary, vice president of design and development for Atlantic Station.

Approximately 150,000 tonne (165,000 ton) of contaminated sediments were removed, the entire site was encapsulated, and groundwater monitoring wells were installed throughout. Initially composed of 90% impervious surface, the site now is made up of 60% impervious surface. Atlantic Station also installed brand new sewer and stormwater control systems, which help alleviate some of the burden on Atlanta’s already taxed combined sewer overflow system and significantly reduce stormwater runoff impacts.

According to Leary, stormwater BMPs (including retention and pretreatment measures), have reduced site runoff from 75% to 35%.

Challenges and Deal-Breakers
Despite the Brownfields Program’s positive numbers, successful projects, and water quality and other environmental achievements, many challenges to addressing sites remain. Contaminated brownfields present cost issues and questions about future land use. On the legal and legislative levels, there are liability issues and bureaucratic delays, and in terms of funding, many of the 600,000 brownfields nationwide have yet to be assessed.

According to Robert Colangelo, chief executive officer of the National Brownfield Association (Chicago) and managing director of Terra Vita Development (San Diego), brownfields funding generally is limited to states and cities, with little going directly to the private sector — “and it is competitive, especially since there are a lot more people chasing it,” he said.

Add to that a pricey cleanup of such conditions as groundwater contamination, and it can be a deal-breaker for a developer. “A lot of buyers will walk away from sites where groundwater is heavily impacted,” Colangelo said. With site remediation costing upwards of $700,000, the public sector often must cobble funds from multiple sources to pay for a cleanup.

Thus, in most cases, brownfields sites that become attractive redevelopment properties tend to have minimal contamination or are urban sites of great real estate value or high political priority.

Also, EPA’s brownfields grants target smaller sites. “One of the key provisions of [brownfields law] was cleanup grants were capped at $200,000 in order to target the small-dollar cleanups,” Kelley said. “We think it’s worked great, because we have received more than 60 grants and are working on cleaning up 60 properties around New England.”

Grants are an important tool to get cleanup projects started, and they ultimately may lead to water quality and other environmental improvements. However, the challenges are to maintain funding and assess the number of sites that remain unexamined.

“While we have made terrific progress in defining the problems, we are certainly a long way ... [from] addressing them and returning sites to use,” Macintosh said.

— Andrea Bistany, WE&T

©2007 Water Environment Federation. All rights reserved.