Environmental and NPDES Permit Compliance Overview
The discharge of wastewater in Michigan is closely regulated by the Michigan Department of Environmental Quality (“MDEQ”) and the United States Environmental Protection Agency (“EPA”). These agencies enforce the Federal Clean Water Act (Public Law 92-500, as amended) and the Michigan Natural Resources and Environmental Protection Act (Public Act 451, 1994 as amended). Both the State and Federal agencies have adopted Administrative Rules and Regulations which impose requirements on the discharge of all municipal wastewater.
In Michigan, the state has adopted Water Quality Standards which prescribe the minimum water quality for all rivers and lakes in the state. To ensure that the Water Quality Standards are achieved, the state and federal governments have adopted the National Pollutant Discharge Elimination System (“NPDES”) under which discharge permits are issued to all municipal wastewater treatment plants. These NPDES Permits establish minimum treatment requirements for each wastewater plant as well as the allowable concentration of individual pollutants that are found in sewage.
Municipal wastewater plants are required to collect and analyze samples to verify the actual pollutant concentrations being discharged from their facilities, and to report the results to MDEQ monthly. Many parameters are sampled continuously, while others are checked less frequently. If the sampling and reporting indicates an excessive quantity of pollutant being discharged, the state can undertake enforcement action to compel compliance, and to assess fines and penalties to the discharger. Chronic or continued violations may result in the issuance of Administrative Order requiring improvements to the treatment facility in order to achieve compliance.
In 1989, U.S.EPA filed suit against Wayne County over alleged unlawful pollution of the Detroit River due to discharges from the County operated Downriver Sewage Disposal System. The State of Michigan joined as a co-plaintiff in the case, and the 13 Downriver Communities were added as co-defendants along with Wayne County. The case resulted in the issuance of a Consent Judgment in 1994 which established a timetable for upgrading and improving the System. New capital improvements totaling nearly $300 million were undertaken by the System over a multi-year period. After the new facilities were completed and place into service, the Consent Judgment was officially terminated in 2006.
Subsequently, the Downriver Sewage Disposal System has operated pursuant to the NPDES Permit issued by MDEQ. The Permit, which typically has a term of 5 years, is in the process of being re-issued by MDEQ. It is anticipated that the new Permit will officially go into effect on November 1, 2017. The new Permit maintains previous regulatory requirements relating to pollutant discharges, but with slightly more restrictive requirements relating to Phosphorus due to concerns about nutrient stimulation which may contribute to downstream impairments in the western basin of Lake Erie. The new Permit also establishes lower levels for Mercury in the discharge to reflect state regulatory requirements for that pollutant due to ongoing fish consumption advisories.
The new NPDES Permit also establishes requirements for the DSDS to reduce the frequency of Wet Weather Flow Blending by undertaking a series of improvements which will provide additional wet weather treatment capacity. In addition, the new Permit imposes requirements to develop and implement a new Asset Management Plan (“AMP”) which is designed to ensure that sufficient funds are available to replace or rehabilitate aging equipment before that equipment’s useful life has ended.
Since the termination of the Consent Judgment in 2006, the Downriver Sewage Disposal System has typically been in compliance with all of the NPDES Permit requirements. For an almost eight year period spanning 2006 – 2014, the wastewater plant achieved an unprecedented 100% compliance track record. Since 2014, the plant has encountered a small number of permit exceedances, most of which were attributable to extreme weather conditions and unanticipated equipment outages. In each instance, the plant quickly recovered and returned to compliance with permit conditions.