Why did the Harpeth Conservancy appeal Franklin's sewage treatment plant permit?

Franklin’s own monitoring data show that during 2012-2017 it was discharging approximately 72.5 lbs/day into the river. The Permit allows Franklin to discharge approximately 174 lbs/day, more than double its 2012-2017 levels.

TDEC’s action violated its long-standing interpretation of its own regulations. For example, TDEC’s own 2016 Final 303(d) list, which lists the Harpeth River as impaired, states that:

Water quality limited streams [such as the Harpeth River] are those that have one or more properties that violate water quality standards. They are considered impaired by pollution and not fully meeting designated uses.

If a stream is impaired, regardless of whether or not it appears on the 303(d) List, the Division cannot authorize additional loadings of the same pollutant(s). It may mean that dischargers will not be allowed to expand or locate on 303(d) listed streams until the sources of pollution have been controlled.

Under the Clean Water Act and Tennessee law, there are two (2) types of limits on the amount of pollution a discharger like Franklin can be required to comply with, a “Technology-Based Effluent Limit” (or “TBEL” – pronounced “T-Bell”) or a water quality-based effluent limit (a “WQBEL” – pronounced “Q-Bell”). 

A TBEL is the “classic” “end-of-pipe” discharge standard. The standard that a discharger must meet is what the technology employed is capable of attaining. A TBEL is thus the minimum standard that all point source dischargers (industrial dischargers and publicly-owned sewer plants) must meet. These standards are written into the discharger’s permit as the maximum it can discharge.

When TBELs are not enough to ensure that the waterbody receiving the discharge meets water quality standards, a state is supposed to perform a study to establish how much pollution the waterbody can handle, to determine which dischargers get to discharge what amounts of particular pollutants, and to formulate a plan to bring the waterbody back into compliance with water quality standards. This study & plan is called a Total Maximum Daily Load (or “TMDL”). TMDL are supposed to set WQBELs. 

For more information on TBELs and WQBELs, click here.

However, performing a TMDL is NOT the only way a WQBEL is supposed to be set. The law is that compliance with water quality standards is not excused, and that, because TMDLs can take a long time, states must establish WQBELs promptly while TMDLs are being performed. This is a requirement of both federal and Tennessee law. TDEC is required to, but has not, set a WQBEL that brings the Harpeth River into compliance with Tennessee’s water quality standards. To read just some of the authority that requires TDEC to set a protective WQBEL, click here.

See also 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); American Paper Institute v. U.S. EPA, 996 F.2d 346, 350 (D.C. Cir. 1993); Upper Blackstone Water Pollution Abatement District; Prairie Rivers Network v. Illinois Pollution Control Board, 2016 IL App (1st) 150971 ¶¶29-33, 38 (Ill. App. Ct. 2016); Ala. Dept. of Env. Mgt. v. Ala. Rivers Alliance, Inc. 14 So. 3d 853, 866-68 (Ala. Civ. App. 2007).

In its appeal, Harpeth Conservancy noted that the Harpeth River has been on the state’s 303(d) as impaired by phosphorus pollution for fifteen years – since 2004 – and for nutrients since 1996. But, no TMDL for phosphorus has been done and the river is still impaired by Franklin’s phosphorus pollution. Therefore, TDEC was required to set a WQBEL.

TDEC claimed it based Franklin’s permit limits on its average discharge, but in reality it misused statistical techniques:

“[TDEC] calculated nutrient limits…by calculating the 95th percentile of historic loading [the amount discharged into the river]. The basis for this calculation is EPA’s [Technical Support Document] for Water Quality‐based Toxics Control (Toxics Guidance). However, as the permit notes, nutrients aren’t toxics…[and] there is no basis for the use of this calculation to set a TP [total phosphorus] effluent limit.”

“The TP limit is calculated based upon what the facility can meet 95 percent of time [and is not an average of historic loadings]…This allows for significant exceedances of previous loading amounts. The Franklin STP could literally [more than] double any previous daily loading amount and still comply with the proposed limit.”

“TDEC misuses the Toxics Guidance to excuse poor operator performance. The Toxics Guidance was not intended to be used to allow more pollution but to set “toxicologically protective” limits. The Toxics Guidance notes that “[i]n effect then, the limits must “force” treatment plant performance….”

— TN Clean Water Network, permit comments 11/21/16 (available HERE); EPA Technical Support Document for Water-Quality Based Toxics Control available HERE [see pps. 97, 99, and 101] 

TDEC initially said it wanted to “hold the line” on current discharges from Franklin and knew exactly what that would require:

“Can you please re-send this file with daily flow corresponding to the TP [total phosphorus] concentration. I think I will need that information to establish “hold the line” TP limit in a more accurate way.”….

“It looks like the limit for TP will end up around 80 lb/day.…”

— Email exchange between Vojin Janjic, TDEC Manager, Water-Based Systems and M. Hilty, Franklin and J. Dodd, Deputy Director, TDEC Water Resources Division, 9/2-6/16. Compare 80 lbs/day to the approx. 72.5 lbs/day Franklin currently discharges.

TDEC also knew that it was supposed to base its permit discharge calculations on the amount of phosphorus Franklin was currently discharging into the river (“what the river is seeing”):

“Vojin, I as mentioned…I am concerned about a couple of items with respect to how TDEC and HRWA are establishing the phosphorus limits. In speaking with Jennifer Dodd a short while ago, my concerns are confirmed. While I understand the permit is to be publically [sic] noticed on Monday, I would like to submit the following information with respect to my concerns. …

You keep bringing up the idea that loads must be limited to what the Harpeth River is ‘seeing’.”

— Email from M. Hilty, Director, Water Management Department, Franklin, to Vojin Janjic, TDEC Manager, Water-Based Systems, 9/9/16 (available HERE).

BUT, even though TDEC knew the correct standard, the record showed the following exchange:

[Mark to Tisha]: “Tisha…The City is really taken aback by the change in the permit level for phosphorus…As I understand it, we would be moving from a permit limit…of 5 mg/L to essentially 0.8. This is an incredible change…”

[Tisha to Mark]: “Mark…I wanted to quickly state that TDEC did not work with HRWA to establish the phosphorus limit. We are taking into consideration comments that we have received from the City as well as HRWA, an I’m sorry if anything I said gave you the impression that HRWA was given authority to establish limits for you…Given the circumstances, would you prefer that we not public notice the permit this coming Monday…?”

— Emails between E. Stuckey, City Administrator, & M. Hilty, Director of Franklin’s Water Management Department, and T. Calabrese-Benton, TDEC Water Division Chief T. Calabrese-Benton, and J. Dodd, Deputy Director, TDEC Water Resources Division, 9/9/16.

TDEC’s rules (called antidegradation regulations) require Franklin to evaluate the potential for its discharges to degrade water quality. The Permit allows a measurable degradation of water quality in the Harpeth River. The state’s own regulations require a full antidegradation analysis, but Franklin did not supply it and TDEC did not require it. A full antidegradation analysis is required in situations such as this in which an important metric – the amount of sewage effluent allowed to be discharged — is being increased so significantly – by a third, by four million gallons a day (4 MGD), from 12 MGD to 16 MGD.

TDEC’s rules also say that once it is determined that an activity will cause more than a de minimis degradation, meaningful evaluations of all reasonable alternatives, of the economic and social consequences of the alternatives, and of the necessity of the proposed degradation are required:

If the proposed activity will cause degradation above a de minimis level … a complete application will:

• Analyze all reasonable alternatives and describe the level of degradation caused by each of the feasible alternatives;
• Discuss the social and economic consequences of each alternative; and
• Demonstrate that the degradation will not violate the water quality criteria for uses existing in the receiving waters and is necessary to accommodate important economic and social development in the area.

— General Water Quality Criteria, Section 0400-40-03.06 – Antidegradation Statement (available HERE).

TDEC did not require an antidegradation evaluation, including the subsequent evaluation of alternatives, consequences and necessity.

The Harpeth River in Davidson County is designated as a State Scenic River and is therefore an “Exceptional Tennessee Water” and special antidegradation protections are required.

Tennessee’s antidegradation rules have special procedures for “Exceptional Tennessee Waters” (see pgs 32-33 of the regulations HERE). The Harpeth River in Davidson County is a Tennessee State Scenic River.

For Exceptional Tennessee Waters such as the Harpeth River, the state’s antidegradation rules provide that:

…At the time of permit renewal, previously authorized discharges, including upstream discharges, which presently degrade Exceptional Tennessee Waters above a de minimis level, will be subject to a review of updated alternatives analysis information provided by the applicant, but not to a determination of economic/social necessity.

Because Franklin’s discharges are upstream of an Exceptional Tennessee Water, TDEC’s regulations required that their impacts be considered, and the inclusion of these segments of the Harpeth on Tennessee’s 303(d) list, Dr. Burkholder’s and Dr. Randall’s reports [Burkholder’s report available HERE; Randall’s report available HERE, with update HERE] all demonstrate the applicability of these special antidegradation rules to the Permit.

But, Franklin did not supply the required updated alternatives analysis, nor did it demonstrate either that there were no reasonable alternatives that were not feasible, or the required necessity. Note that Franklin’s new sewer plant can achieve very low levels of phosphorus discharge, as noted in experts’ reports, demonstrating that there are reasonable, feasible alternatives to the degradation allowed in the permit. In fact, Franklin has been steadily reducing their phosphorus output since early 2018 (learn more HERE).

Franklin applied for approximately $100 million in loans from the State Revolving Loan fund, administered by TDEC.

TDEC dismissed any inquiry into what pollution reduction levels Franklin could achieve:

Q: What limits Franklin says it can treat to for TN and TP now (and in its future plant)?

A: Franklin has not told us to what level they can treat. It appears from the data that in the current plant that they can treat to or below the current limits. 

— Email from TDEC lawyer P. Parker to TDEC Water Division Chief T. Calabrese-Benton, 3/10/16.

“[Harpeth Conservancy’s] question [about the “phosphorus removal design capabilities” of the Franklin plant] is a good one but a loaded one. I’ll see what I can obtain. I don’t think that Franklin will want that information given out. (I wouldn’t.)” 

— Email from Chief Engineer, TDEC Division of Water Resources, G. Garden to J. Dodd, 8/23/16.

TDEC’s own regulations, however, required:

“For publicly owned treatment works, effluent limitations shall be designed to require application of the best practicable waste treatment technology.”

— Permits, Effluent Limitations and Standards Section 0400-40-05-.08 (available HERE).

TDEC, after reviewing our permit appeal, repealed this regulation.

Harpeth Conservancy has been concerned about TDEC’s preparation of the TMDL for at least two reasons: (1) The law is clear that TDEC must establish a WQBEL now and cannot wait for the TMDL process to be completed to bring the river into compliance with water quality standards; and (2) there are concerns about the thoroughness and objectivity of the TMDL as well as TDEC’s conduct the process.

Before releasing the Draft Permit for public comment in September 2016, TDEC had prepared an August 29, 2016 draft of the permit would have required Franklin to reduce phosphorus discharges in to the river from its current plant (63,393 lbs./year) to the new plant (48,545 lbs./year). TDEC included the lower limit for the new plant because, presumably, its new 16 MGD plant could do better. Instead, in the September 20, 2016 Draft Permit, these lower limits were eliminated in favor of allowing both its old and new plants to discharge more than twice the amounts they are actually putting into the river. In place of even “holding the line” on discharges, the Permit deferred such issues and relies on the TMDL to “fix everything.”

In an e-mail exchange between Franklin and TDEC on September 16, 2018, Franklin stated:

While we’ve been assured from the beginning that the permit won’t prejudge the TMDL I have a lingering concern should the TMDL result in less stringent limits. The feedback thus far has been that TDEC has the potential to establish less stringent limits. This concept has been one of the compelling reasons for the City’s participation in the TMDL process. If I remember, I think Patrick was going to verify if is and didn’t know if he had a chance to see if the rules had provisions to do so. To avoid any arguments in the future we would like for it to be explicitly stated in the permit.

The language Franklin requested was included in the final Permit, which now states:

This constitutes an interim [phosphorus discharge] limitation until a new TMDL is finalized and approved by EPA, at which time the limitation will be revised to be consistent with the assumptions and requirements of the new wasteload allocation. This may result in either a decreased or an increased limitation…

How can a TMDL result in Franklin getting permission to discharge more phosphorus when TDEC’s own 303(d) list has listed the river as impaired at current discharge levels for so many years?

Further, although the TMDL was announced on July 6, 2015, now over four (4) years ago, critical initial tasks for the TMDL have still not been done. For example, a work plan – an overall plan for the performance of the TMDL and the sampling and monitoring of the river on which the plan is supposed to be based – is needed for a successful TMDL, and TDEC has not provided any substantive work plan to date. As Michael Corn, principal of AquAeTer, noted:

“A Work Plan should be developed for conducting the 2018 studies. It is impossible to conduct a waste assimilative capacity study and then conduct the subsequent modeling if a definitive plan is not developed and in place before the project begins. This is a fundamental part of any scientific study.”

— Recommendations for the 2018 Waste Assimilative Capacity Study of the Harpeth River for Establishing Defensible Wasteload Allocations (WLAs) (available HERE)

Moreover, the City of Franklin and Harpeth Conservancy jointly requested that TDEC prepare a work plan in January 2018, and TDEC promised to do one in the February 2018 TMDL meeting (joint request available HERE).

To date, there is still no substantive work plan with technical specifications or target deadlines. TDEC has, however, created a webpage for the Harpeth River Watershed TMDL Development (available HERE).

The Harpeth Conservancy is now involved in stakeholder-led TMDL development for the Harpeth River. CLICK HERE to learn more about the Harpeth Conservancy’s recommendations for a technical work plan, leadership committee, and technical advisory panel.

In short, the permit violated numerous provisions of state and federal law. Fundamentally, it did not, but was required to, establish discharge levels that protect the river from further degradation and set the river on the path towards restoration – towards removal from its status as impaired by phosphorus pollution, with all the challenges to public health and the environment that result from that impairment.

Harpeth Conservancy is pleased to report that efforts to include an action level in the Franklin permit are having an effect. To read more about Franklin’s progress in reducing phosphorus discharges, CLICK HERE.