City to challenge wastewater requirements

Saturday, September 21, 2019

The City of Nevada is poised to challenge wastewater requirements imposing stringent nutrient limits on wastewater entering the Marmaton River. The proposed limits in the recently received draft permit are based on a study conducted prior to the construction and operation of the new wastewater treatment plant. Nevada's National Pollutant Discharge Elimination System (NPDES) Permit expired in 2016. Although the application for the wastewater permit was submitted as required, the city has only recently received a draft permit.

This does not mean the city is operating without a permit. Missouri Department of Natural Resources (MDNR) allows municipalities to operate off of the existing permit until the new permit is accepted and enforced. According to Alliance Water Resources Local Manager Dan Scherer, each wastewater entity has a permit that is in effect for five years. “Prior to that expiration date, the entity submits for renewal, which we did.” A new draft permit was received in July, 2019.

During her presentation to the city council on Tuesday, Engineer Kim Cole, KimHEC, discussed the draft permit at length. “The MDNR is proposing a 35 to 40 year compliance schedule where each one of those 10 or 15 year increments requires additional equipment. They are estimating 38 to 40 million dollars per upgrade to get the treatment plant they are proposing.”

She went on to explain that in 2010, a study was conducted on the Marmaton River that showed a total maximum daily load (TMDL) and determined the stream was impaired. (A TMDL establishes the maximum amount of a pollutant allowed.) The amount of loading the stream could handle was then calculated, which brought with it stringent nutrient limits that are not possible with current technology.

According to Cole, MDNR did not consider that the city built a new wastewater treatment plant after the TDML was issued. “This has huge cost implications and we have a lot of questions. There are a lot of important things that should be on your radar related to that.”

City Manager JD Kehrman added that, “I want to reiterate a point that Kim made about that 2010 study that got dropped on my desk my first week of working here. They told us in no uncertain terms that just because these regulations were technically unfeasible and were beyond our means financially, it made no difference. They would continue to enforce these standards.”

“That’s why they haven’t issued you a permit,” Cole stated. “Dan (Scherer) and I have met with DNR and they mentioned that Nevada is an exception because you are the only ones who have built a new treatment plant since that TMDL was developed. That’s why I think you guys really have some questions to ask. DNR hasn’t collected additional data on that receiving stream to see if it is still impaired.”

“You have been collecting data for 10 years upstream and downstream and paying for analysis. You have put a lot of effort into this and DNR hasn’t even looked at that data. They haven’t reassessed the stream and they are asking you to spend $150 million on plant upgrades over the next 40 years – which has huge implications for your rate structure, let alone a Pretreatment Program. This is your bigger take-home message – your MPDES permit renewal.”

"You guys have a good wastewater treatment plant that is ran well, has good effluent quality. I’d invite DNR to show us that stream is still impaired before they ask you to meet more stringent requirements that are not achievable.”

She went on to explain that nitrogen and phosphorus cause algae growth and depletes the oxygen in the river system. “That’s what the impairments were, therefore they are limiting your nutrients.” Cole continued to state that “most of the state does not have nutrient limits, but they are asking you guys to take them. They are coming down the road for the rest of the state and they will get them eventually, but they won’t be as what they are imposing on this permit. Regardless, you guys need to start thinking about nutrient removal, but not to the degree that is proposed in this permit.”

Kehrman stated that it is imperative that the city challenge the data and that Cole is the person to do it, with Cole adding that she believes it is a legal matter as well.

“There may be a need for some additional legal counsel to help us on this.” Kehman told the council. “I do want you to know that as intimidating as this seems, we have dealt with this before - ten years ago – we came out alright and we’ll come out alright on this as well.”

“You just need to stand up for yourselves,” Cole added. “I don’t think that you have to take that permit with limits that are unattainable.”

Council member Ryan Watts asked about the consequences of not accepting the guidelines, to which Cole answered: “Every three years DNR has to evaluate the standards and those have to be approved. This is a TMDL, or total maximum daily load, that was developed because of an impairment on our receiving stream, so it modifies that law that applies to everybody else and gives you something more stringent to get rid of the impairment on the stream.”

“These limits that surround the TMDL, those are basically accepted as a law, but they are required. DNR can’t issue a permit unless it incorporates that TDML, which is why you haven’t been issued a permit - because they didn’t know how to issue a permit to show that you could get to those levels.”

According to Cole, DNR has said they want to rerun that TMDL, but nine years later they haven’t done that. “They think they can use the same set of data and come up with a different TDML. In addition to modifying the TMDL’s, the document itself says that stream will be reassessed and if it is, then you won’t have to change your permit.”

“As far as the enforcement goes,” Kehrman said, “they can impose daily fines.”

City Attorney William McCaffree added that each day the condition continues counts as separate events. “You can be fined $50,000 for what was yesterday, then if you haven’t done anything they can to the same today and the next day – they do have the power to do this. There isn’t any choice here, you are going to have to obey the law. They can also come in with injunctions and enforceable court orders. They can come in and force us to whatever they think should be done.”

He went on to say that, “This is an area of administrative law, in handling this problem and what they are doing to us, that the normal lawyer knows nothing about. I’m a fellow in the American College of Trial Lawyers. That is about as good a trial lawyer as you can get, but I know nothing about administrative law. This is a very, very specialized thing and we need to bring in an administrative law expert on this and now – before they get this issued and we are locked into it. Right now, we might be able to change it.”

Cole agreed.

In a separate interview on Thursday, Scherer pointed out again that DNR did a stream assessment in 2010 - prior to the new wastewater treatment plant being built. “The new plant is much more efficient than the old one. It puts out a very clean effluent and we think a new stream assessment should be done to determine if we really need to meet all these limits they imposed on the new permit. If reassessment is not undertaken, the end result could be the stringent and unattainable standards. It is very important that aspect is known.”

The city has been in contact with an administrative attorney who will be advising moving forward.

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