San Diego Wastewater Treatment: Current Issues

Claudia Copeland
Specialist in Environmental Policy
Environment and Natural Resources Policy Division

July 18, 1995

95-818 ENR

SUMMARY

The House Transportation and Infrastructure Committee has approved legislation, H.R. 1943, that would provide a wastewater treatment plant in San Diego with a permanent waiver from treatment requirements of the Clean Water Act. San Diego's situation has been characterized as a classic example of regulatory overkill and has been cited frequently in congressional debates over regulatory relief issues, but opponents say that a legislative fix for San Diego is unnecessary. H.R. 1943 could be considered by the House soon. The bill is identical to one provision of legislation passed by the House on May 16, 1995 (H.R. 961), a broad Clean Water Act (CWA) reauthorization bill. This report provides background on current issues concerning the San Diego treatment plant and waiver.

BACKGROUND

The Clean Water Act places rigorous demands on those who are regulated by it to achieve high levels of pollution abatement. Both industrial dischargers and municipal wastewater treatment plants were required by the 1972 CWA amendments to install uniform minimum treatment technologies defined in the law and detailed in regulations issued by the Environmental Protection Agency (EPA). Municipalities were required to achieve secondary treatment of municipal waste by mid-1977 (Congress later allowed for extensions to mid-1988). Secondary treatment is defined in EPA regulations by numerical values for three conventional water quality parameters (biochemical oxygen demand, suspended solids, and acidity) and is generally considered to reflect 85 percent removal of incoming wastes. The Act's minimum requirements for industries and municipalities, focused on the capability of treatment technology rather than what is necessary to meet individual stream conditions, were intended to accelerate water pollution abatement efforts nationwide.

In 1977 Congress amended the CWA, modifying certain of the Act's uniform treatment mandates. The amendments added section 301(h) which authorized the EPA to grant waivers from secondary treatment in the case of coastal communities which discharge their treated wastewaters through outfalls into marine or ocean waters. Certain environmental safeguards must be assured before EPA can approve a waiver. The provision's intent was described in a 1983 House subcommittee report. (l)

The ocean discharge waiver, as it is frequently referred to, had as one of its underlying purposes the avoidance of treatment for treatment's sake, particularly given the multi-million dollar cost of the additional margin of wastewater treatment capability that would otherwise be required at many municipal facilities.

Technically, Congress' willingness to make a limited distinction between the cleanup requirements that would be required of those discharging to fresh, or inland waters, and those communities that discharged to marine waters, was predicated on the fact that the marine environment offers rapid and massive dilution, that dissolved oxygen depletion (which must be avoided to maintain a healthy aquatic community) is less of a problem in marine than fresh water, and that the turbulence or flushing action of the ocean results in rapid dispersal of pollutants.

As enacted in 1977, the opportunity for ocean discharge waivers was not open-ended. Applications were to be filed by September 23, 1978. However, because of EPA delays in issuing necessary regulations and numerous technical questions about the program, Congress modified the Act in 1981 to broaden eligibility and reopen the period for submitting section 301(h) applications until December 29, 1982. In 1987 Congress again modified section 301(h) to specify additional restrictive qualifications on waiver applications (e.g., the need for applicants in urban areas to have in place a pretreatment program) but not to generally reopen the opportunity for submitting waiver applications.

Since this provision was enacted, EPA received 208 applications for waivers. Thirty-five now discharge with approved 301(h) modifications, 77 applications were denied, 10 await a final decision, and 86 were voluntarily withdrawn, often after public controversy or opposition from environmental interest groups. Municipalities that receive 301(h) modifications -- like all other municipal and industrial permittees -- must re-apply for discharge permits every 5 years, which is the duration of CWA permits under current law.

SAN DIEGO CASE

In San Diego and a number of other coastal cities, the need for achieving the Act's mandate for secondary treatment of municipal wastewater has been extensively debated. In San Diego's case, the issue also has been subject to lengthy legal proceedings and court-imposed penalties, as well as extensive scientific review. Further, the specifics of the city's case have drawn Congress' attention, resulting in a 1994 amendment to the Clean Water Act (P.L. 103-431) and the 104th Congress legislation, H.R. 961 and H.R. 1943.

San Diego officials first applied for a 301(h) waiver for the Point Loma wastewater treatment plant in 1979. At the time, this plant provided primary treatment for 120 million gallons per day of wastewater, with discharge through on outfall that extended 2.5 miles out into the Pacific Ocean. EPA tentatively approved the application in 1981, but in 1983 San Diego submitted a revised application, based on increased flow projections and plans to treat sewage from Tijuana, Mexico. Also in 1983, the State Water Resources Control Board revised the California Ocean Plan to extend the State's bacteriological standards for beaches to offshore kelp beds. In connection with San Diego's application, Federal and State officials were particularly concerned about wastewater discharge impacts on kelp beds. Although discharges from the Point Loma plant were distant from these areas, ocean currents were known to carry the plume into recreational areas of the kelp beds frequented by divers, thus causing exceedance of the bacteriological standards and a health risk to recreational water users. Thus, in 1986 EPA tentatively denied San Diego's waiver requests, and the State indicated disapproval of the city's request that the Point Loma kelp beds be excluded from the more stringent bacteriological standards.

The following year, the San Diego City Council withdrew the previous 301(h) applications, apparently after concluding that pursuing the waiver would be futile, and voted to come into full compliance with the CWA by upgrading the Point Loma facility to a secondary treatment plant, plus a number of related measures. The city also committed to an extensive water reclamation and reuse program, because of water shortage problems. The cost of the full San Diego Clean Water Program was estimated in 1990 to be approximately $2.4 billion.

However, after withdrawal of the 301(h) applications, in July 1988 EPA filed suit against the city for failure to comply with Federal and State regulatory mandates. A Federal court found that for many years the city had deferred capital improvements and thus had allowed hundreds of sewer overflows which had released approximately 100 million gallons of raw sewage, including 86 million gallons which reached public waters. It was undisputed that the Point Loma plant had not been in compliance with the law's secondary treatment requirement since EPA denied the tentative waiver in 1986, and the court assessed a $3 million fine against the city, $2.5 million of which was to go towards water conservation projects. At the same time, the court deferred putting San Diego under a consent decree with a legally enforceable schedule for compliance. Instead, the court gave the city additional time to evaluate the efficiency of treatment plant improvements then being tested on a pilot plant scale, completion of a master plan for wastewater reuse, and continuation of other specified efforts. The plant was then testing a chemically enhanced primary treatment (CEPT) process in which certain chemicals that enhance the tendency of solids to settle are added to the improve primary treatment system. Scientists believe that, in deep ocean waters, limiting discharge of suspended solids is important because of the metals, toxic organics, and pathogens associated with them. Biochemical oxygen demand is generally not important in the open ocean, but is important in bays and estuaries.(2)

Finally, in March 1994 the same Federal court found that further improvements to the Point Loma facility (i.e., requiring full secondary treatment) would be excessively costly without producing additional environmental benefits. Plant improvements made thus far, including extending the discharge outfall 4.5 miles from the coast, and the results of scientific evaluations of using the CEPT process led the court to conclude that there had been improvements to the marine environment at the discharge point but that further upgrades to achieve full secondary treatment could not be accomplished cost-effectively, nor were they scientifically warranted. Thus, the court concluded that the city need not meet the terms of the full San Diego Clean Water Program developed in the late 1980s. However, the court had no authority to act on a 301(h) waiver from the secondary treatment mandate of Federal law.

In response, Congress enacted the Ocean Pollution Reduction Act in October 1994 (P.L. 103-431). It amended the CWA to allow San Diego a 180-day period to renew its application for a 301(h) waiver. The city submitted its application in April 1995, and on June 12, EPA gave preliminary approval. The Agency's initial review found that the application meets CWA criteria for a 301(h) waiver, as well as the terms of P.L. 103-431, requiring a demonstration that discharging partially treated wastewater offshore will not have a significant impact on the marine environment. EPA expects to finish its review and issue a permit for the plant by August.

In sum, since 1990 the City of San Diego has upgraded the Point Loma plant, invested in related water conservation, and has begun work on a reclamation project. A Federal court has found that upgrading to full secondary treatment would require wasteful, costly over-treatment. In P.L. 103-431, Congress allowed the city to re-apply for a 301(h) waiver from secondary treatment, and EPA expects to issue a discharge permit for the plant this summer.

LEGISLATION IN THE 104TH CONGRESS

Congress revisited the issue of ocean discharge waivers in the Water Quality Amendments of 1995, H.R. 961, passed by the House on May 16, 1995. Section 309(a) of this bill would define certain discharges from coastal municipal plants as the equivalent of a secondary treatment facility (i.e., the plant provides chemically enhanced primary treatment, discharges through an ocean outfall more than four miles offshore, is in compliance with water quality standards, and is subject to an ocean monitoring program). While not mentioned by name, San Diego's Point Loma plant is presumed to meet these criteria. That facility and any others that might qualify (no others are currently known to qualify) would thus receive permanent relief from having to apply or re-apply for a 301(h) waiver, although they are not relieved of the general need to periodically re-apply and renew discharge permits.(3)

The House defeated an amendment by Representative Pallone to delete this provision from H.R. 961,154-267. Opponents argued that it represented preferential treatment for San Diego and was unnecessary because of the special consideration given in P.L. 103-431. A permanent waiver relieves San Diego of the need under current law to demonstrate through periodic public review that a waiver will not harm the marine environment, opponents said. It also relieves San Diego of several specific items included in P.L. 103-431: the city's commitment to building a water reclamation facility and meeting specific effluent parameters from Point Loma. Supporters said that the specifics of San Diego's case are well documented by scientific studies, while the likely cost of applying for a 301(h) waiver (more than $1 million) is not defensible. This provision, plus several others in the bill, (4) were intended to provide relief to communities from costly unfunded mandates. Deleting these provisions would remove from the bill flexibility for secondary treatment requirements for localities nationwide, supporters say. Opponents contended that these waiver provisions represent favoritism for select communities and, as such, are unfair to thousands of others that have previously made capital investments in order to comply with secondary treatment.

The San Diego case described here has been characterized as a "classic example of regulatory overkill" (5) and has been frequently cited in recent months during congressional debate on regulatory relief issues. To further the likelihood that the situation will be corrected legislatively, on July 12 the House Transportation and Infrastructure Committee approved H.R. 1943, the San Diego Coastal Corrections Act of 1995. The text matches section 309(a) of H.R. 961 and was approved by a 35-21 vote of the committee. The bill could be considered by the House soon, perhaps under "Corrections Calendar" procedures for addressing wasteful and unnecessary rules or laws for termination by the House in an expedited manner. Rules governing bills on the Corrections Calendar are restricted (debate is limited to one hour, no amendments are allowed, and a three-fifths vote of those present and voting is required for passage), thus precluding lengthy debate or alteration. (6)

ISSUES AND QUESTIONS

The legislation raises a number of questions: in light of the enactment of P.L. 103-431 and EPA's recent tentative approval of a 301(h) waiver for San Diego, is the legislation necessary? Is it necessary in view of previous House action on H.R. 961 (legislative activity on the CWA has not begun in the Senate)? What environmental assessment and public review procedures will remain for marine impacts of discharges from Point Loma if a permanent waiver from secondary treatment is granted?

San Diego officials contend that the existing waiver process in the CWA provides only temporary relief (since applications must be renewed periodically, and they fear that Federal officials might view San Diego's application less favorably in the future), but why should San Diego be insulated from the renewal and review procedures applicable to others? Alternatively, should all plants with 301(h) modifications (currently 36, including 13 plants in Maine, 3 in California, and 9 in Alaska) be granted permanent waivers? Does the legislation represent needed regulatory flexibility or preferential treatment?

While many of these questions were debated in connection with H.R. 961, they are likely to be raised again during consideration of H.R. 1943. However, if the House considers and passes H.R. 1943 under the limited Corrections Calendar rules, the opportunity to address the questions fully will be forwarded to the Senate.

Endnotes

1. U.S. Congress. House. Committee on Public Works and Transportation. Subcommittee on Investigations and Oversight. Implementation of the Clean Water Act Concerning Ocean Discharge Waivers. 97th Cong., 2d Sess. U.S. Govt. Print. Off., 1983. Committee Print 97-77. pp. 13-14.
2. National Research Council. Managing Wastewater in Coastal Urban Areas. National Academy Press. Washington, D.C., 1993. p. 56.
3. A separate provision of H.R. 961, section 402(a), would extend the term of CWA discharge permits from 5 years to 10 years in length.
4. Section 309(b) would allow coastal communities which discharge into marine waters through an ocean outfall at least one mile offshore and 150 feet deep to apply for a 10-year waiver from the Act's secondary treatment requirement, if certain conditions are met -- ocean monitoring, compliance with water quality standards, implementation of an industrial pretreatment program, etc. Section 309(c) would allow modified permit requirements for municipal plants serving 10,000 or fewer persons (coastal or non-coastal) which treat waste primarily from domestic users and utilize alternative systems, such as constructed wetlands, or are equivalent to secondary treatment. Sections 309(d) and 309(e) of the bill provide special 301(h) consideration for Mayaguez, Puerto Rico, and Anchorage, Alaska.
5. Remarks by Representative Bud Shuster in the House of Representatives, Congressional Record, daily ed., May 11, 1995, p. H 4807.

6 For more information, see CRS Report 95-722 S. A New "Corrections Calendar" for the House.