Harpeth Conservancy supports the legislation filed in the Tennessee General Assembly, the Accountability in State Lending Act, that will hold municipal wastewater treatment plants receiving loans from the state accountable for following mandates of State and Federal clean water laws and regulations.
On behalf of our members and supporters and the more than 500,000 citizens who annually enjoy the Harpeth River, we thank Representatives Bo Mitchell and John Ray Clemmons and Senator Jeff Yarbro for sponsoring HB 2614 /SB 2618.
Read Vice President and COO Jim Redwine’s comments on the bill here.
WHAT DOES THE BILL (HB 2614 / SB 2618) DO?
Within one (1) year the Tennessee Department of Environment and Conservation (TDEC) must set a limit on the amount of pollutants the plant can discharge that is based on the actual water quality in the receiving water (a water quality-based effluent limit, or WQBEL (pronounced “Q-bell”)).
The WQBEL must:
1)Require the facility to “hold the line” on current pollution levels (prevent them from getting worse). The limit must be no more than one hundred twenty percent (120%) of what the facility has discharged into the river over the past five (5) years.
(Currently, Franklin is discharging approx. 72.5 lbs/day; therefore, WQBEL could be as much as approximately 87 lbs / day, which represents the current amount plus a “cushion.” See below.)
2)Be designed to cleanup and get the river off the impaired list (the “303(d) list”) within ten (10) years.
The bill also says no funds for expansion of the facility can be disbursed from the Tennessee State Revolving Loan Fund until the WQBEL is finally set and any appeals resolved. Thus, the bill does not take away any funding for the expansion of the Franklin sewer plant. Rather, funding is entirely within Franklin’s control – it can resolve its appeal asking for permission to discharge even more phosphorus into the Harpeth River, and remove this issue. See below.
WHY LEGISLATION AND WHY NASHVILLE LEGISLATORS?
State Representative Bo Mitchell, Senator Jeff Yarbro and Representative John Ray Clemmons, who represent the Harpeth River Watershed, announced this legislation to combat ongoing pollution affecting the State Scenic Harpeth River. "We are reliant on this river," Yarbro said. "It's impaired and endangered. We want to make sure we have the appropriate standards. This bill gets conveyed as a dispute between a nonprofit and city, but this affects our counties as we deal with growth. We need to it be smart and responsible."
Data shows that the discharge from that plant alone can account for more than half of the river’s flow in the river upstream in Williamson County and more than one-fourth of the river’s flow in Nashville / Davidson County during summer and drought conditions. In spite of this, the Tennessee Department of Environment and Conservation (TDEC) is preparing to loan Franklin almost $100 million dollars to expand the plant, while refusing to require the city to reduce the existing pollutant loads. Under the lawmakers’ proposed Accountability in State Lending Act, the State would force TDEC to set a limit on the amount of pollutants the plant can discharge into the river that is based on the actual water quality in the receiving water. It would require the State to limit that pollution to comply with pre-existing State and Federal law. Rep. Mitchell says, “We can’t continue to give state dollars to sewer facilities polluting our natural resources without holding them accountable.”
WHY IS THE BILL NECESSARY?
The Harpeth River does not meet the water quality standards the State of Tennessee has set. As a result, the Tennessee Department of Environment and Conservation (TDEC), the State agency responsible for these issues, put the river on the list of waters that are impaired by pollution, the “303(d) list.” TDEC has not yet set an appropriate WQBEL for the river, even though it should have a number of years ago. See below.
WHAT POLLUTANTS ARE AFFECTING THE HARPETH RIVER?
The principal pollutants affecting the Harpeth River are nitrogen and phosphorus. The river also does not meet state standards for dissolved oxygen.
WHY ARE NITROGEN AND PHOSPHORUS BAD FOR THE RIVER?
Nitrogen and phosphorus have several effects on rivers. They can cause harmful algae blooms, including potentially toxic blue-green algae. UT experts say that: “Exposure to blue-green algae [cyanobacteria] “can cause irritation of skin, eyes, nose and throat and inflammation of the respiratory tract. Ingestion can cause nausea, vomiting and diarrhea. In humans, toxins have been linked to liver disease and neurological effects…. Toxic cyanobacterial blooms have caused the death of wildlife, livestock and pets. Dogs are especially susceptible….”
Nitrogen and phosphorus also cause dissolved oxygen levels to decrease (and on the Harpeth, levels are below and violate state water quality standards) during summer / drought conditions. This decrease can cause smelly, unsightly fish kills.
WHAT’S ACTUALLY HAPPENING ON THE HARPETH?
Noted national experts say “… [C]onditions in the River have already passed the … ratio ‘tipping point’ at which cyanobacters [blue-green algae] will flourish. To continue with the current manner of nutrient removal at the City of Franklin treatment plant represents a form of cyanobacter ‘Russian Roulette.’” Expert report of 11/21/16 by Clifford Randall, Ph.D., DIST.M. ASCE, HON.M. AAEES, C.P. Lunsford Emeritus Professor, Department of Civil and Environmental Engineering, Virginia Tech University.
The river is also below state water quality standards for dissolved oxygen.
HOW MUCH PHOSPHORUS IS FRANKLIN’S SEWER PLANT DISCHARGING INTO THE HARPETH?
Franklin sewer plant is currently discharging into the river approximately 72.5 lbs of phosphorus per day. AT CURRENT DISCHARGE LEVELS THE RIVER IS ON THE 303(d) LIST OF IMPAIRED (POLLUTED) WATERS.
HOW MUCH PHOSPHORUS DOES FRANKLIN’S PERMIT ALLOW IT TO DISCHARGE?
Franklin’s permit allows it to discharge approximately 174.5 lbs of phosphorus per day (63,693 lbs/yr), or MORE THAN DOUBLE (twice) what it is currently actually discharging into the river.
WHAT IS THE CURRENT STATUS OF THE PERMIT?
Harpeth Conservancy has appealed the permit because it violates a number of provisions of state and federal law. THE PRINCIPAL POINT OF HARPETH CONSERVANCY’S APPEAL IS THAT THE PERMIT ALLOWS FRANKLIN TO DISCHARGE MORE DOUBLE THE AMOUNT OF PHOSPHORUS FRANKLIN IS CURRENT DISCHARGING, EVEN THOUGH AT CURRENT DISCHARGE LEVELS, THE RIVER IS ON THE 303(d) LIST OF IMPAIRED (POLLUTED) WATERS.
Franklin is appealing its own permit. FRANKLIN WANTS THE ABILITY TO DISCHARGE EVEN MORE PHOSPHORUS INTO THE RIVER, EVEN THOUGH AT CURRENT DISCHARGE LEVELS THE RIVER IS ON THE 303(d) LIST. “The City of Franklin, without waiving its rights, further appeals the total phosphorus limits as calculated to result in a total annual average limit of 63,693 lbs/yr. If TP limits more stringent than those set forth in the prior NPDES permit are deemed to be appropriate, the limits should be higher than 63,693 lbs/yr.”
WHEN IS A WQBEL NECESSARY?
A WQBEL is necessary whenever a water such as the Harpeth River is on the 303(d) list of polluted waters and technology-based effluent controls “are not stringent enough to implement any [applicable] water quality standard[s].” In such cases the State must establish a “total maximum daily load” (TMDL) of the pollutant in question. This TMDL is supposed to be “established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety.” This is known as a “water quality-based effluent limit” or WQBEL.
WHY NOT JUST WAIT FOR A TMDL TO BE DONE?
TMDLs can take a long time to do. According to TDEC, a TMDL can take between 8-13 years to complete. The Harpeth has been on the 303(d) list for phosphorus for more than a dozen years already, and the required TMDL, which was announced in July 2015, is still in its infancy. It lacks basic initial elements such as a work plan. In such circumstances, the law says that the State must set a WQBEL now. See, e.g., Upper Blackstone Water Pollution Abatement District v. U.S. EPA, 690 F.3d 9, n 8. (1st Cir. 2012); City of Taunton Dept. of Public Works, 17 EAB (Env. Appeals Board 5/3/2016). And, the 2004 TMDL did not address phosphorus and is now long-outdated.
CAN FRANKLIN MEET LOWER PHOSPHORUS DISCHARGE LEVELS?
Yes. Noted national experts say that both the current plant and the plant as proposed to be expanded, could meet MUCH LOWER phosphorus discharge levels.
CAN FRANKLIN AFFORD IT?
Franklin can afford to reduce phosphorus for at least two (2) reasons: 1) experts say that the cost to reduce phosphorus significantly would be minimal, and 2) Franklin is borrowing approximately $100 million from the State to finance the expansion of its sewer plant.