December 2013, Vol. 25, No.12

Finding balance

news art

Wastewater utilities weigh revenue generation versus the technology costs that come with accepting waste from niche industries 

According to an Aug. 20 press release by the Fulton County (N.Y.) Center for Regional Growth, dairy manufacturing has become a “Tier 1” industry for upstate New York. “It all began in centrally-located Fulton County, where international yogurt maker FAGE and nearby Chobani together have created more than 1650 jobs and helped to make New York the number one yogurt manufacturing state in the country,” according to the release.  

 According to an Aug. 20 press release by the Fulton County (N.Y.) Center for Regional Growth, dairy manufacturing has become a “Tier 1” industry for upstate New York. “It all began in centrally-located Fulton County, where international yogurt maker FAGE and nearby Chobani together have created more than 1650 jobs and helped to make New York the number one yogurt manufacturing state in the country,” according to the release. California has experienced a similar manufacturing boom, but in craft beers instead of dairy. According to the California Craft Brewers Association (Sacramento) website, the craft brewing industry in California grew by 20% in 2012, and California produces more craft beer than any other state in the union, “brewing more than 2.4 million barrels.” 

With these manufacturing booms can come jobs and an influx of tax dollars for the state. Wastewater utilities also can benefit from these manufacturers by receiving more user fees. But the situation can be a double-edged sword; the cost of upgrades and retrofits needed to treat this additional, higher-strength wastewater can test a utility. In New York and California, utilities seem to be finding a balance between new business growth/revenue and the technological cost demands that come with handling new sources of industrial wastewater. 


From gloves to yogurt  

In upstate New York, the Gloversville-Johnstown Joint Wastewater Treatment Facility has been receiving much waste from the dairy industry the past few years, said Manager George Bevington. The facility is permitted to receive wastewater from 22 different industries, but dairy is by far the largest contributor, though it hasn’t always been that way, he said.  

“We’re Gloversville, which was the capital of the glove industry, which means leather,” Bevington said. “Some of these manufacturers have remained, but they aren’t what they used to be.” He explained that a lot of the original equipment at the water resource recovery facility (WRRF) that was once used to treat wastewater from the leather industry has been repurposed for dairy. 

Now the WRRF treats moderate-strength waste aerobically and high-strength waste (whey) anaerobically, Bevington said. To do this, the facility has undergone a few upgrades that have centered on anaerobic digestion and solids handling. The digester was modified to accept the wastewater and new belt presses also were added. Other upgrades to tankage, air blowers, and pumps made pretreating the wastewater more cost-effective. “They required several million dollars in investment,” he said.  

Bevington said the WRRF also has a full industrial pretreatment program. “We have a separate pipeline for industrial wastewater that goes to centralized pretreatment,” he explained. “We do it because it’s more cost-effective.” 


Bringing more revenue and electrical power  

In California, the East Bay Municipal Utility District (EBMUD; Oakland, Calif.) accepts industrial wastewater, mostly from food processors, that is trucked directly to its facility, said John Hake, associate civil engineer at EBMUD. This wastewater is used to produce biogas, helping to make EBMUD the first WRRF in North America to produce more renewable energy onsite than is needed to run its facility, according to the utility’s website. 

“The high-strength wastes — for example those with high [chemical oxygen demand] concentration, including brewery wastes — are discharged to our digesters where they produce more biogas,” which is used in cogeneration units, Hake said. “In addition to the electricity value derived from digesting these wastes, we also receive a tip fee for accepting the waste. Because we are using existing systems to treat the waste and convert to electricity, no new technology was required.” 

The Santa Rosa (Calif.) Utilities Department also is aware of the potential benefits that wastewater from industrial customers such as microbreweries can bring to its WRRF and the city, in general.  

“At this time we are not taking waste from microbrewers, but we are in position to do so and are planning to begin reaching out to those and other industry sectors that could provide energy-rich waste,” said David Guhin, director of utilities for the City of Santa Rosa. “We would be doing it for the primary reason of generating additional electricity to reduce our purchase from the grid and to support our local industries while providing an economic development incentive for those looking to move their businesses here,” he said.  

Currently, many of Santa Rosa’s local industries have to haul their wastes longer distances at a higher cost for treatment, Guhin explained.  

We have the capacity in our digesters to accept this waste, Guhin said. In September, the city had a ribbon-cutting ceremony for its new combined heat and power facility. The utility now has the capacity to use additional digester gas and is in the process of evaluating the infrastructure needed to construct a receiving station, he said. 


— LaShell Stratton-Childers, WE&T  




A regulatory definition of ‘waters of the United States’ 

New draft study expected to be scientific basis of clarification rule on Clean Water Act jurisdiction 


The U.S. Environmental Protection Agency (EPA) on Sept. 17 made available a draft study providing the first comprehensive link between headwater streams, which are most of the streams in the U.S., and downstream navigable waters. This study is expected to serve as the scientific basis for a rule developed jointly by the EPA and the U.S. Army Corps of Engineers to clarify Clean Water Act (CWA) jurisdiction over the nation’s waters and wetlands, according to a Sept. 18 BNA article. 

The draft study, titled Connectivity of Streams and Wetlands to Downstream Waters, is being peer reviewed by the EPA Science Advisory Board (SAB). The study states all tributary streams, including perennial and the previously unprotected intermittent and ephemeral streams, are physically, chemically, and biologically connected to downstream rivers. It also finds that wetlands and open waters in flood plains of rivers and riparian areas are connected in the same way as streams are to downstream rivers. However, the study was unable to generalize that a connection exists between isolated wetlands and open waters, such as playa lakes and prairie potholes, that are located outside flood plains and downstream waters. Instead, it said the EPA and the Corps could, on a case-by-case basis, evaluate whether these isolated wetlands have an aggregate impact on downstream waters.  


Proposed rule  

In addition, EPA on Sept. 17 sent a proposed rule that would clarify CWA jurisdiction over the nation’s waters and wetlands to the White House Office of Management and Budget (OMB) for interagency review. At the same time, it withdrew draft guidance on the issue that had been at the White House since 2012. 

These activities signify action on the part of EPA to try to clarify the issue of jurisdiction in the CWA. Under the Act, the EPA and/or delegated state authorities issue permits under the Sec. 402 National Pollutant Discharge Elimination System program, while the Corps issues Sec. 404 dredge-and-fill permits for construction and other development projects. 


What the study signifies  

This study could serve as basis to allow the agencies to assert jurisdiction in a broad-based fashion over ephemeral and intermittent streams. Currently the agencies are forced to try to find a significant nexus for each non-navigable tributary in question with downstream navigable waters as set forth in the U.S. Supreme Court ruling in Rapanos v. United States, 547 U.S. 715, 62 ERC 1481 (2006). (For more information on how the agencies apply the “significant nexus” test, refer to the Clean Water Act Jurisdiction guidance document issued Dec. 2, 2008, by the EPA and the U.S. Department of the Army.) 

The study is a review and synthesis of scientific literature related to physical, chemical, and biological connections from streams, wetlands, and open waters to downstream waters such as rivers, lakes, estuaries, and oceans. The report contains more than 1000 peer-reviewed publications and summarizes the current scientific understanding of the connectivity of small or temporary streams, wetlands, and certain open waters, evaluated singly or in aggregate, and the mechanisms by which they affect the function or condition of downstream waters.  

The goals of the report are to provide a context for considering the evidence of connections between rivers and their tributary waters, summarize current understanding about these connections and associated downstream effects, and discuss factors that influence the degree of connectivity or the magnitude of a downstream effect. Various industry reviewers of the draft report seem to agree that this study seems to lay the technical foundation for a rule allowing EPA to regulate all waters. 

The draft rule being sent to the OMB and not yet made public, “is limited to clarifying current uncertainty concerning the jurisdiction of the CWA that has arisen as an outgrowth of recent Supreme Court decisions … [and will provide] greater clarity on which waters are not subject to CWA jurisdiction and greater certainty on which activities do not require CWA permits.” 

The announcement by EPA does not seem to indicate changes to the regulatory exemptions and exclusions, but does list several additional exclusions that EPA says are included in the draft proposed rule. These exclusions listed in the proposed rule being sent to OMB are 

non-tidal drainage, including tiles, and irrigation ditches excavated on dry land; 

artificially irrigated areas that would be dry if irrigation stops; 

artificial lakes or ponds used for purposes such as stock watering or irrigation; 

areas artificially flooded for rice growing; 

artificial ornamental waters created for primarily aesthetic reasons; 

water-filled depressions created as a result of construction activity; and 

pits excavated in uplands for fill, sand, or gravel that fill with water.  


Expanding courtroom definitions  

Ephemeral and intermittent streams also could fall under federal protection. Although the study may help establish jurisdiction, some observers state that it may not necessarily mean new permits since there will still exist a need to show proof of a discharge of a pollutant where it is an “addition” of a “pollutant” from a “point source” into a “water of the United States.” 

The issue of jurisdiction over water and wetlands and what is a water of the U.S. has been complex and confusing. Two U.S. Supreme Court decisions have tried to clarify or set Clean Water Act Jurisdiction. The first was Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159, 51 ERC 1833 (2001), and the second was Rapanos.  

The Court in SWANCC said the agencies couldn’t assert jurisdiction over geographically isolated wetlands as waters of the U.S. merely because they served as habitat for migratory birds. 

In Rapanos, the Supreme Court split on defining a standard to establish jurisdiction. Justice Anthony Kennedy issued a concurring opinion, which said the agencies must prove on a case-by-case basis that a particular water or wetland has a “significant nexus” to a navigable water. Meanwhile, Justice Antonin Scalia’s plurality opinion said the CWA should apply to waters and wetlands with a “continuous surface” connection to navigable waters. Kennedy said he articulated the significant nexus standard to allow the agencies to assert jurisdiction over intermittent and ephemeral streams and wetlands without a direct connection to navigable waters, according to a BNA report on Sept. 26, 2013. The study seems to be asserting a broad jurisdiction over categories of waters without the case-by-case “significant nexus” determinations currently required. This worries some because it may allow regulators to consider isolated wetlands and waters located in uplands to be considered waters of the U.S., which is not currently the case under a 2003 memorandum following the SWANCC decision. 


More questions remain  

Finally, the draft connectivity study finds the data are insufficient to conclusively link isolated wetlands, but the proposed rule is expected to establish a set of factors for determining whether all other wetlands possess sufficient connectivity to downstream waters to assert federal jurisdiction over them, says the Sept. 26, 2013, BNA report. 

The EPA study is being reviewed by the independent SAB and EPA is welcoming public comments. A public docket for comments on the study is closed and the SAB Panel was scheduled to review it Dec. 16–18. WEF is planning to comment on the draft rule when it is published in the Federal Register after OMB releases it.  


— Claudio Ternieden, WE&T  

 © 2013 Water Environment Federation. All rights reserved.