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Part 1
In general, aquifers will return [i.e., convert] small quantities of
untreated sewage to clean, pristine water fairly quickly. As long as
the amount of sewage [does] not exceed the “assimilative capacity”
of the underlying aquifer … As the habitations were gradually
built up and the population increased, it was noticed that the water
in the wells, especially in the more populous portions, was rapidly
losing its pristine purity, and was becoming hard, non-potable
and injurious to health. …
—Municipal Report of the City of Charleston, SC, 1881, discussing
the correlation between increasing population (and privies) and the
decline of water quality of wells in Charleston, SC
By Elizabeth Dietzmann
I stole this from Ed Wengrowski’s
PowerPoint presentation at the
National Environmental Health Association
(NEHA) in June. Such a
great quote, it illustrates in surprisingly
timeless prose that we have been
concerned about the public health
impact of onsite systems on water
quality for a long, long time. Now that
concern has expanded to include the
specific environmental impacts of nutrients.
Wengrowski is the wastewater
management coordinator for the New
Jersey Pinelands Commission and has
been instrumental in developing and
implementing the Pinelands Septic
Dilution Model, a land-use planning
tool to quantify the capacity of the
Pinelands environment to assimilate
nitrogen from septic systems. Wengrowski
is in the process of overseeing
a three-year-long nitrogen-sampling
program involving four types of onsite
systems in order to determine if
these systems can successfully remove
nitrogen from effluent under the
unique conditions of the Pinelands.
Wengrowski is just one of a number
of regulators who are now focusing
on nitrogen removal as the next hot
topic in regulation of onsite systems.
Maryland, North Carolina, Rhode Island,
Minnesota, Massachusetts, and
Florida are also dealing
with nitrogen removal, and they are not
alone. It looks like this is the next big
thing to come down the pike in onsite water.
The impacts of excess nutrients on
watersheds are extremely obvious to
the public aesthetically, and perhaps
more importantly, they hit the public
where it hurts—financially. When the
blue crab and oyster industries in the
Chesapeake Bay are all but eliminated
because of excess nutrients in the bay,
the public notices. When springs in
Florida, famous as tourist attractions
because of the crystal clear waters,
start to become cloudy, the public
notices. Ultimately, all environmental
regulation in a representative democracy
is driven by the people. When they
speak loudly enough to their elected
representatives, regulation follows. Just
look at the history of the environmental
movement in this country. It took Love
Canal and Rachel Carson and a few
other highly publicized issues to get
this nation’s attention on the ’70s, and
what followed was the rapid enactment
of the bulk of the environmental
legislation we all live with today. Nutrient
removal is rapidly becoming one of
those issues. It is an issue the public
can readily see and thinks it can comprehend,
and more
importantly, nitrogen is
an issue that impacts
the public directly. I see
lots and lots of nitrogen
limits being slammed
into place with little
regard for the complexities
of the issue.
We are taking the Wild
West approach: Shoot
first and ask questions
later, simplifying an extremely
complex issue.
The issue of nutrient removal
shouldn’t be a surprise to any of us. According
to the second National Coastal
Condition Report (NCCR II, 2005), a
comprehensive report on the condition
of the nation’s estuarine waters and
coastal fisheries, coastal areas are the
most developed areas in the nation. As
explained in the report, as of 2005, this
narrow fringe—only 17% of total contiguous
US land area—was home to more
than 53% of the nation’s population.
This meant that more than one-half of
the US population was living in less than
one-fifth of the total area of the contiguous
48 states. Further, this coastal population
was increasing by 3,600 people
per day, giving a projected total increase
of 27 million people by 2015—a faster
growth rate than that of the nation as
a whole. Not much has changed since
2005 except that growth has increased
even more than projected.
A simpler way of looking at coastal
growth, based on the EPA data, is to
say that coastal watersheds (defined as
areas draining into bays and oceans)
are growing rapidly, with 55% of the
US population living within 50 miles
of a coast. In fact, the entire state of
Florida with a population of roughly 18
million people is considered a coastal zone. And each human being produces
approximately 8 pounds to 10 pounds
of nitrogen a year. We all know that
coastal zones are vulnerable to eutrophication
as a result of nutrient pollution,
most typically nitrogen. Coastal
communities with sandy soils have lots
of nitrate going into the water and causing
algal blooms, with all the ensuing
problems lack of oxygen and turbidity
can cause for the designated beneficial
uses of coastal waters. (I am not ignoring
the impact of phosphorus as a limiting
nutrient in freshwater areas; it is just
that the big push by regulators seems
to be on onsite removal of nitrogen,
and this is consistent with the skewed
population density in coastal areas.)
So we need to remove nitrogen. This
industry is good at removing the nasty
stuff from wastewater. There are lots of
types of technologies that work (when
maintained). But nitrogen removal is a
whole new ballgame. (I get really nervous
when I have to resort to sports
analogies.) How about nitrogen removal
is “a horse of a different color”? In
any event, the chemical process for
removing nitrogen is tricky and very
technology-intensive compared to effluent
treatment. Manufacturers and
regulators alike have explained this to
me. Additional processes must be performed
before nitrates, one of the forms
of nitrogen that I am told has the most
severe impact on the receiving environment,
can be removed. Much like Goldilocks
and the Three Bears, pH, oxygen
levels, and carbon sources must all
be just right in order to make the bugs
happy and achieve biological nitrogen
reduction in effluent. Several onsite system
manufacturers have spent lots of
time and money refining, modifying, or
adding to their systems in order to remove
nitrogen. While they claim varying
degrees of success, no one has told me
that it is a simple, inexpensive process.
But how do we enforce these limits
that are being set left and right? How
will we know whether or not a system is
meeting nitrogen limits? What industry
representatives do seem to agree upon
is that the more complex the system,
the more water-quality testing needs to
be done. It seems like the only way to
know that nitrogen-removing systems
are removing nitrogen is to sample.
Wow. Sampling for nitrogen adds a
whole new layer of complexity to the
already thorny issue of managing onsite
systems. Who will collect the samples?
Health department officials? O&M providers?
Who will pay for the collection
of samples and for the sampling itself?
Will sampling be conducted as part of
a technology approval process for a
limited period of time? Will it be done
for the life of the system? The answers
to these questions fall into the “don’t
know,” “maybe,” and “unclear” categories.
What I do know is that all but
a handful of regulators are establishing
nitrogen standards without addressing
these questions. I am not blaming
the regulators. It is a classic dilemma
for them: lots of public demand for action,
but no political support for budget
allocations to implement an effective
regulatory scheme.
Wakulla County, FL, is a great example
of this Catch-22. Wakulla Spring
is gorgeous, and I have heard that the
existing nitrate level may be less than
1 milligram per liter. I do know that you
can see hundreds of feet down into the
water. The county has every reason to
want to protect this rare and unique
resource. With strong political influence
from the business community,
the county is charging headlong into a
nitrogen standard of 10 milligrams per
liter for all new individual sewage disposal
systems. “For all new construction,
only performance-based septic
systems that can produce a treatment
standard of 10 milligrams per liter of nitrogen
shall be installed. … (Ordinance
2006-58, Future Land Use Element,
Policy 7.5 – Draft version as of June 1,
2007). Whether or not 10 milligrams per
liter is the appropriate limit, the problem
is the issue of monitoring hasn’t been
addressed. It appears that systems
must be inspected every three years.
But no operations and maintenance
(O&M) agreements are required. So unless
there is a third-party requirement
for an O&M agreement, like the National
Sanitation Foundation (NSF), no maintenance
will be done. And it appears
that no sampling will be done. How can
anyone possibly know whether or not
a nitrogen-removing system is in fact
removing nitrogen unless some sort of
testing is performed? I know for a fact
that local regulators everywhere are
reluctant to impose those costs onto
homeowners—just one of the many
problems associated with implementing
a nitrogen standard. (Of course it seems
like manufacturers could be required
to foot the bill for field-testing data for
a statistically significant percentage
of the systems in the ground.) Then,
just to complicate matters, there is a
new certification standard in place as
well. For all of you who don’t know it,
the NSF has come out with Standard
245, a nitrogen standard that was an
outgrowth of the EPA’s ETV Source Water
Protection Pilot Program. The NSF
describes it as a sort of addendum to
Standard 40 that measures biological
oxygen demand and total suspended
solids but not nitrogen. So regulators in
nutrient-sensitive areas can now require
that new systems be NSF 40/245 certified. That still doesn’t answer the fieldperformance
question. More and more
regulators are recognizing the big disconnect
between a laboratory certification
standard and field performance.
This becomes a pivotal issue with
the installation of the more complex
systems required in order to remove
nitrogen. A few studies have started to
ask this question. An example is Variability
and Reliability of Test Center and
Field Data: Definition of Proven Technology
From a Regulatory Viewpoint
(New England Interstate Water Pollution
Control Commission, Lowell, MA,
September 2005). That study noted,
“State regulatory agencies have been
concerned with discrepancies between
test center data and real world installations
of these technologies. To effectively
manage an alternative technology
program, state regulatory agencies
must be confident in the results that
will occur in the real world when constant
monitoring, management, and
oversight might not be present.”
In fact, Don Alexander of the Virginia
Office of Environmental Health Services
was concerned enough by this issue
to agree to chair a Field Performance
Verification Protocol Task Group. This
task force is in the process of developing
a protocol that would allow manufacturers
to enroll in a field verification
program. The task force reports to the
Joint Committee, which after its own
extensive review and debate of the
protocol could ultimately recommend
the program to the NSF for development.
Theoretically, a system that
completed the protocol could be said
to have attained certain limits a certain
percent of the time. As Alexander
was kind enough to explain to me, too
many regulators have wondered for too
long what systems do when they are
actually installed out in the field with all
the possible conditions that exist outside
of the NSF testing center.
As you can see, there are obviously
lots of issues surrounding the implementation
of nitrogen standards. I plan
on taking the next couple of columns
to describe some localities that are
already implementing actual nitrogen
sampling. We’ll see how they are handling
it. I also plan on discussing the
really hard question: Why are we applying
a drinking-water public health
standard to an environmental-quality
issue anyway? How do we know what
nitrogen limit will protect our coastal
waters? I hope you can join me.
Elizabeth Dieztmann is an attorney for AquaLaw PLC and can be emailed at Elizabeth@aqualaw.com.
OW- November/December 2007
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