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DEQ responds to comments on Saluda sewage plant

The following information and guidelines on the upcoming State Water Control Board (SWCB) meeting on the proposed Saluda wastewater treatment plant was released on April 3. 

The SWCB release includes a summary of individual comments from local citizens and local groups on the proposed Saluda wastewater plant; and the Department of Environmental Quality (DEQ) staff responses to these comments.

Guidelines for the April 27-28 SWCB meeting also are listed at the end of this article.

The proposed Saluda wastewater treatment permit is the first issue on the April 27-28 SWCB meeting agenda, and will be followed by several cases from other localities that do not pertain to Middlesex.

STATE WATER CONTROL BOARD MEETING
MONDAY, APRIL 27, 2009
AND TUESDAY, APRIL 28, 2009 (if necessary)
House Room C
General Assembly Building
9th & Broad Streets
Richmond, Virginia
Convene – 9:30 a.m. (Both Days)

Summary of Comments Received During Public Hearing/Comment Period VPDES Permit No. VA0091316, Middlesex Courthouse WWTP, Middlesex County:
On June 6, 2008, DEQ received an application from Middlesex County for re-issuance of VPDES permit number VA0091316 for the Middlesex Courthouse Wastewater Treatment Plant (WWTP).  This permit was originally issued for the first time on December 11, 2003 and expired on December 10, 2008.  During the original 2003 issuance process, notification was made to 18 riparian land owners downstream of the project, and no public comments were received during the public notice phase of the original permit.

The 2003 permit authorized the permittee to discharge treated municipal wastewater from a treatment facility with a design capacity of 39,900 gallons per day (gpd) into an unnamed tributary of Urbanna Creek, in the Rappahannock River basin.  At the outfall point, the receiving water body is a free-flowing intermittent stream.

The outfall location is 0.85 miles upstream of the unnamed tributary’s confluence with tidal Urbanna Creek; however, 0.1 mile downstream of the outfall point, ambient stream flows within the channel disappear into a swallow hole.  A Certificate to Construct (CTC) the facility was issued on August 29, 2005, but as of today, the treatment facility has not been built. The proposed treatment facility will serve Middlesex County’s recently built Courthouse complex, the County’s High School, and an undetermined number of local businesses in the Saluda area.  Since 2003, sewerage generated at the Courthouse complex has been handled through a pump-and-haul arrangement.

The High School is currently served by a failing drain field located on its athletic fields.  The application for re-issuance of this VPDES discharge permit requested that the current permitted design capacity of 39,900 gallons per day be carried forward to the re-issued permit cycle.  A notable difference between the application for the 2003 permit and the application for the 2008 re-issuance is that the location of the proposed treatment plant was changed by the permittee due to the purchase of a larger lot to build the treatment works.

The new location is east of Saluda, off State Route 33.  However, the County plans to pump the treated wastewater approximately 0.8 mile back to the proposed 2003 outfall site (off SR 618) in Saluda to avoid shellfish issues.  Consequently, the outfall location will remain the same as the current permit.  The proposed draft permit for re-issuance contains most of the same limitations and conditions of the existing permit, with minor exceptions added or removed to address new agency requirements and procedures promulgated since the initial issuance of this permit.  These include additional significant digits requirements, additional bacterial limitations and monitoring requirements, additional compliance reporting requirements, and the removal of total residual chlorine limits and monitoring due to the planned design change from chlorination/de-chlorination to ultraviolet disinfection methods.

Although the Water Quality Standards require that only E.coli bacteria be limited for discharges to freshwater streams, a limitation for Fecal Coliform was carried over to the draft permit re-issuance from the existing permit to account for any effluent that may reach Urbanna Creek (shellfish waters).  The Middlesex Courthouse treatment facility does not currently possess a Chesapeake Bay nutrient allocation because a CTC was not issued before July 1, 2005.  However, the facility will be authorized to discharge total nitrogen and total phosphorus under the General VPDES Watershed Permit Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the Chesapeake Bay Watershed in Virginia (9 VAC 25-820) because the design flow is less than 40,000 GPD.  If in the future the County requests and receives approval of an expansion of the facility to 40,000 GPD or more, the County would be required under the General Permit to formally register for General Permit coverage, offset their entire discharged load and comply with any applicable technology requirements.

The proposed outfall point is not directly in designated shellfish waters.  Nonetheless, DEQ staff coordinated with the Virginia Department of Health, Division of Shellfish Sanitation in preparing the proposed permit.  Downstream, in the tidal portion of Urbanna Creek, the VDH has identified areas of both condemned and prohibited shellfish growing waters.

On July 2, 2008, VDH responded that the proposed permit would not cause an increase in the size or type of currently designated restricted shellfish growing areas, and offered no further comments on the proposed permit.  Effluent limits were developed to maintain water quality criteria under “critical” low flow drought conditions.  Due to the intermittent nature of the receiving stream, the discharge was evaluated without the benefit of dilution.  Consequently, the proposed permit limits reflect the need for the treated effluent to maintain water quality standards by itself, or at the “end-of-pipe.”  The draft permit proposes to limit the following parameters:

Carbonaceous Biological Oxygen Demand (cBOD5) …10 mg/l (1500 g/day) monthly average
Total Suspended Solids (TSS) …10 mg/l (1500 g/day) monthly average
Total Kjeldahl Nitrogen (TKN) …3.0 mg/l (450 g/day) monthly average
Dissolved Oxygen …5.0 mg/l minimum
E.coli bacteria …126 N/100 mL monthly geometric mean
Fecal Coliform bacteria …200 N/100 mL monthly average, and 
pH …6.0 S.U. min. and 9.0 S.U. max.

The draft permit was public noticed in the Southside Sentinel on 9/11/2008 and on 9/18/2008. A total of 179 comments were received by email, fax, written letter, or form letter during the 30-day public comment period.  Of these comments, 147 requested a public hearing, and were submitted in full compliance with the information requirements outlined in 9VAC 25-230-40 of Procedural Rule No. 1.

Based on the comments received, DEQ concluded there was significant public interest, and substantial, disputed issues relevant to the re-issuance of VPDES permit VA0091316.  The DEQ Chief Deputy Director concurred, and approved the holding of a public hearing on November 3, 2008.  Members of the State Water Control Board were notified, and no comments were received requesting a meeting of the Board to review the Director’s decision to grant a hearing or to delegate the permit to the Director for his decision.

Consequently, the Department proceeded with scheduling this hearing and notifying interested parties.  Public notice of this hearing was published in the December 18 and December 25, 2008 editions of the Southside Sentinel newspaper.  The comment period closed at 4:00 p.m. on February 6, 2009.  A Public Hearing was held at the Saint Clare Walker Middle School in Locust Hill, VA in Middlesex County on January 21, 2009 at 7:00 pm.  Mr. Robert Wayland served as the Hearing Officer, and DEQ staff present included Richard Weeks, Kyle Winter, Curt Linderman, Jeremy Kazio, Jaime Bauer, and Emilee Carpenter.  Public attendance included 105 citizens, of whom 17 presented oral comments opposing the proposed permit re-issuance.  Approximately 33 letters and emails were received during the comment period between December 18, 2008 and February 6, 2009.  


Summary of Comments Received at the January 21, 2009
Public Hearing for the Proposed Middlesex Courthouse
Wastewater Treatment Plant Permit
Reissuance (VA0091316) and in written form
between December 18, 2008 and February 6, 2009.

1) Issue: Should other alternatives to the point source discharge of wastewater at the proposed outfall location be evaluated/pursued?

Comment: The permittee should be forced by the State to withdraw their application to discharge and instead apply for a treatment system which utilizes applying wastewater to land.  Although the proposed permit does not incorporate nutrient limits, there is sufficient evidence that the permittee plans to expand, which will require that nutrient limits be applied to the facility.  Nutrient removal technology is ungainly and expensive, and cannot be afforded by the permittee.  Land application is a better alternative because the nutrients can be used on agricultural fields in the area, which will help support the local economy and prevent pollution of local waterways.
Commenters: Marian Agnew, Mike Floyd, Dan Gill, Robert Calves

Comment: Generally, Virginia’s state government operates with too narrow of a focus and not enough practicality.  Specifically, the State should require that all localities take a regional approach to wastewater disposal, and that long term plans be required instead of allowing multiple small wastewater treatment plants to be constructed within relatively diminutive areas. 
Commenters:  Roger Martin, Robert Calves

Comment: The DEQ should be required to ask for the Hampton Roads Sanitation District’s input on the proposed wastewater treatment facility because they are a “government entity” which specializes in municipal wastewater disposal.
Commenters:  Sean Kemple

Comment: The Middlesex County government (the permittee) has not considered a long term solution to the existing or future sewage disposal needs of the county.  Construction of the proposed plant will serve very few people, and will not promote growth within the county, and it will cause the county government to delay it’s obligation to address the rest of the county’s sewage needs.
Commenters:  Stan Coloff, Urbanna Town Council/Janet Smith, Peter Mansfield, H.Deiter & Mary E. Hoinkes, Ingrid Roper, James Knupp

Comment: The County’s sewage should be piped to the HRSD-owned York River WWTP via the proposed pipeline that will serve Mathews, VA.  This will prevent the pollution of Urbanna Creek and promote the cleanup of the Chesapeake Bay.
Commenters:  Urbanna Town Council/Janet Smith, Sean Kemple, H.Deiter & Mary E. Hoinkes, Stan Coloff

Comment: In general, there are other alternatives that exist which will channel wastewater out of Middlesex County.  These should be considered.
Commenters:  Urbanna Town Council/Janet Smith, Don Richwine, Helen & Roger Hopper, Elizabeth Pritchard, Kerry Robusto, Robert Montague, Margaret Gerdts, James Knupp, James Pitts

Comment: The wastewater from the proposed facility should be piped to the Rappahannock River instead of Urbanna Creek.  The Rappahannock River provides more dilution and is tidally flushed.
Commenters:  James Pitts

Comment: The discharge from the proposed wastewater treatment plant should be directed to Dragon Run (headwaters of the Piankatank River) instead.
Commenters:  Aubrey Hall 
 
Comment: The Middlesex County government (permittee) has claimed that they are being forced to halt their current pump and haul method for disposal of sewage from the new courthouse complex.  Some citizens have questioned whether this is true, and state that the County government should continue pumping and hauling because it is cheaper.
Commenters:  Sean Kemple, Peter Mansfield, H.Deiter & Mary E. Hoinkes

Comment: Demographically, there’s nothing within the county that warrants the construction of a wastewater treatment plant in the Saluda area.  The existing private subsurface sewage disposal systems are adequately addressing citizens’ sewage needs. In addition, the proposed wastewater treatment plant does not address issues regarding sewage disposal in other areas of the county which are in need of it, such as Hartfield and Deltaville.
Commenters:  Urbanna Town Council/Janet Smith, Sara Chaves Beam, James Knupp, Peter Mansfield

Comment: Middlesex County’s own comprehensive plan states that all measures will be taken to discourage the construction of any source of discharge to waters within the county.  The proposed treatment plant does not follow this part of the plan.
Commenters:  Roger Martin

Comment: The Middlesex County government (permittee) should be required by DEQ to request to be part of HRSD’s “Regional Plan” for addressing sewage.  This plan’s goal is to incorporate the sewage disposal needs of multiple small localities into fewer large wastewater treatment facilities.
Commenters:  Sean Kemple

Comment: The Virginia State Government has an obligation to encourage cost effective and sustainable approaches to wastewater treatment, rather than promoting costly treatment practices that are “Neanderthal” and “self serving”.
Commenters:  Dan Gill

Comment:  Royster Malcolm Pirnie, the engineering consultant to Middlesex County (the permittee), disagreed with verbal comments made at the public hearing.  The disagreement was in regard to the statement made by a representative of the Urbanna Town Council that the consultant was instructed by the Board of Supervisors to place the discharge from the proposed wastewater treatment facility into Urbanna Creek. The consultant stated that the Board of Supervisors never instructed them where to place the outfall; rather, they instructed them to look at all alternatives that were available for discharge of the effluent. In a 1995 study of wastewater alternatives for the Saluda Area, the consultant stated, “In the Saluda area the closest water way suitable for discharge of treated effluent from a wastewater plant is Urbanna Creek.” Following through on the County’s requirements, the consultant investigated a discharge to both Dragon Run and the Rappahannock River, and was advised by DEQ that a discharge permit would not likely be granted for either one of these tributaries. Land application was investigated in the aforementioned 1995 report as an alternative, but proved to be not economically feasible. The consultant met with HRSD on several occasions to try and pump the wastewater to their Mathews Courthouse force main. This alternative, also, proved to be not economically feasible.  The consultant studied “re-use” as 
an alternative and, as a result, designed the plant to meet the “re-use” effluent requirements. The consultant submitted that the Urbanna Town Council was misinformed concerning the facts surrounding the alternatives analyzed for the discharge point of the plant. 
Commenters:  Roger O. Hart, P.E., Royster Malcolm Pirnie

Staff Response: The Department of Environmental Quality does not have the authority to require specific wastewater treatment alternatives to an applicant or permittee.  It is DEQ’s obligation to evaluate permit applications it receives to determine the impact to State waters in accordance with the Water Quality Standards, and to assign effluent limitations to a facility in order to maintain these Standards. Nevertheless, the permittee has indicated that the design of the proposed treatment facility will incorporate the ability to meet Level 1 water quality requirements defined in 9 VAC 25-740-90 (Water Reclamation and Reuse Regulation) should a future customer emerge seeking beneficial use of reclaimed wastewater.  Also, the permittee has considered other discharge locations such as the Rappahannock River and Dragon Run Swamp, but these alternatives would cause a change in shellfish closure areas by the VDH Department of Shellfish Sanitation that may render them ineligible for VPDES coverage.   The permittee has also considered joining into the proposed sewage line that will serve the Mathews area, which will be directed to the HRSD York River WWTP. It was determined, through a study conducted by HRSD and paid for by the permittee, that the construction of a sewage trunk line of this length would not be as cost effective (upwards of 3-4 times more) as building a wastewater treatment facility within the county.

DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

2) Issue: Does the proposed permit adequately address and protect Urbanna Creek Water Quality / Beneficial Uses / Nutrient Pollution?

Comment:
The water in Urbanna Creek is stagnant, especially in the upper portions of the creek below the proposed discharge location.  The proposed effluent would not be flushed out of the creek by tidal flux, and will become concentrated to a point that it inhibits the creek’s current recreational uses.
Commenters:  John Amos, Mrs. Marshall, Richard Marshall, Margaret Gerdts, Ingrid Roper, Robert Calves, Kerry Robusto, George Guhse, James Knupp

Staff Response: It has previously been recognized that Urbanna Creek has modest tidal flushing capability or dilution capacity in water models conducted for the Urbanna Wastewater Treatment Plant.  However, the proposed facility will discharge to an intermittent stream greater than 0.8 miles from its confluence with Urbanna Creek.  The effluent from the proposed facility is required to meet current Water Quality Standards at the “end of pipe” due to the lack of any dilution by the intermittent stream.  It is not expected that the proposed discharge will reach Urbanna Creek under permitted design drought flow conditions.  However, (due to the presence of storm water runoff or other base flows), the resulting mixed water quality would contain a more dilute pollutant load that would be expected to further reinforce the ability to meet or enhance Water Quality Standard criterion.
 
DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

Comment: Section §62.1-44.2 of the Code of Virginia requires that the State take measures to prevent any increase in the pollution of State waterways, and to reduce existing pollution within its waterways.  The proposed wastewater treatment plant will add pollution to Urbanna Creek, which has existing VDH/DSS condemnations on shellfish harvesting from the creek.
Commenters:  Roger Martin

Staff Response: The draft permit has been developed to require that the effluent from the facility meet Water Quality Standards before reaching State Waters.  Therefore, the proposed facility is not expected to cause or contribute to an impairment of State waterways.  During the proposed permit re-issuance’s development, the VDH/DSS was contacted to determine if the proposed discharge would have an impact on the existing shellfish closure for Urbanna Creek.  VDH/DSS responded stating that it would not increase the size or type of closure, and that they had no comments on the proposed permit reissuance.

DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

Comment: The fresh water from the proposed facility’s effluent will cause salinity levels in Urbanna Creek to lower, which may disrupt the ecosystem for aquatic life living there.
Commenters:  Clyde Roper

Staff Response: It is not expected that the proposed discharge at the proposed design capacity will cause salinity levels within Urbanna Creek to decrease.  The Total Maximum Daily Load (TMDL) Report for Shellfish Areas Listed Due to Bacterial Contamination, Urbanna Creek (February 2005) was developed to address fecal coliform bacteria within a portion of Urbanna Creek.  This TMDL focused on roughly half of the creek and used a “tidal prism” model to approximate the volume within that half of the creek based on area and field depth readings.  It was calculated that this portion of the creek contained approximately 113,741,900 gallons of water that is exchanged every 0.7 days.  If this volume is doubled to approximate the remaining half of the creek that was not modeled, it would place the volume of the creek at 227,483,800 gallons of water exchanged approximately every 0.7 days.  Although the effluent from the proposed facility is not expected to reach Urbanna Creek, if it were assumed that the plant operated at design capacity and 100% of the effluent reached Urbanna Creek, this would mean that the effluent would constitute <0.02% of the creek’s volume between tidal flux.  This calculated ratio is an overly conservative hypothetical assumption, and is not expected to cause substantial changes to Urbanna Creek’s salinity levels.

DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

Comment: There is a very general concern regarding nutrient loading and particulate matter levels within Urbanna Creek.  It has been observed during the summer that Urbanna Creek is very cloudy and green colored, which many people attribute to algal growth.  Nutrient loads will cause further algal growth.
Commenters:  Urbanna Town Council/Janet Smith, Mike Floyd, James Knupp, Clyde Roper, Phil Mullins, Stan Coloff, George Guhse

Comment: The government is not doing enough to clean up the Chesapeake Bay, which is why the Chesapeake Bay Foundation and the Waterman’s Association is suing EPA for not cleaning up the Bay by the agency’s goal of 2010.  Allowing the proposed discharge would only prove this point further.
Commenters:  Alana Courtney 

Staff Response: The proposed treatment plant will be designed to meet the nutrient removal standards for a “new discharger” that is not considered a significant discharger under §62.1-44.19:14.C.5 (Code of Virginia) and 9 VAC 820-10 (Chesapeake Bay Watershed General Permit Regulation).  In addition, Total Kjeldahl Nitrogen is limited to a concentration of 3.0 mg/L monthly average in the draft permit re-issuance.

DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

Comment: Urbanna Creek has been declared a “dead creek”.  Instead of adding further pollution, it should be cleaned up.
Commenters:  Alana Courtney, Robert Straw, Robin Starbird, Roger Martin

Comment: If the proposed treatment plant is built, a plan for growing oysters within Urbanna Creek to help in reducing or eliminating pollution cannot be implemented because the Department of Shellfish Sanitation will condemn the creek for shellfish harvest for an indefinite period of time.
Commenters:  Phil Mullins

Comment: The Department of Shellfish condemnation of the creek will not be lifted if the proposed wastewater treatment plant begins discharging.  The discharge may also expand the current condemnation of shellfish harvest within the creek.
Commenters:  Urbanna Town Council/Janet Smith, John Zuegner, Margaret Gerdts, Roger Martin, Phil Mullins

Staff Response: Commenters made reference to Urbanna Creek being declared a “dead” creek because a portion of it is restricted for shellfish harvest due to the VDH/DSS condemned designation.  This does not mean that Urbanna Creek is “dead”, but only that a portion of the creek has the potential to contain high enough concentrations of fecal coliform that harvesting shellfish from the creek with intent to consume them could cause illness due to filter-feeding by the shellfish.  This does not mean that the shellfish are harmed by these high bacterial levels, nor does it mean that any other natural life within or around Urbanna Creek is affected.

Shellfish harvesting is prohibited in portions of Urbanna Creek due to the presence of the HRSD-owned Urbanna Wastewater Treatment Plant and the discharge from the Middle Peninsula Regional Security Center Wastewater Treatment Facility. VDH/DSS has certified that the proposed discharge will not adversely affect shellfish use.  While not required, the proposed permit includes a fecal coliform bacteria effluent limit to provide further reliable protection of shellfish.  The permit will not cause or contribute to the impairment of Urbanna Creek.

The VDH/DSS cannot lift a shellfish closure, as a safety precaution, when there is a known point source discharge directly to tidal waters that has the potential to contribute fecal coliform to a water body, such as a municipal sewage treatment plant like the HRSD-Urbanna Wastewater Treatment Facility. The proposed Middlesex Courthouse WWTP will not be a direct discharge to tidal waters and has been certified by VDH/DSS to not adversely affect shellfish use.  This closure does not prevent citizens from growing oysters in order to clean up the creek; however, it does prevent the consumption or sale of those oysters and other shellfish.

DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

Comment: The cumulative impact of the proposed discharge and existing discharges on Urbanna Creek should be studied.  Also, there should be a better characterization of the intermittent stream to which the proposed treatment facility will discharge.
Commenters:  Sara Chaves Beam, H.Deiter & Mary E. Hoinkes, Stan Coloff

Comment: The existing wildlife in Urbanna Creek will disappear if the proposed treatment facility is allowed to discharge.
Commenters:  Bernice Chewning, Francis Hall, Kerry Robusto

Comment: Urbanna Creek provides swimming and recreational opportunities which will be eliminated if the proposed wastewater treatment plant is allowed to discharge.
Commenters:  Roger Martin, Richard Marshall, Francis Hall, Betty Coulson

Comment: There is insufficient evidence indicating that the proposed wastewater treatment plant will not have a comprehensive impact on Urbanna Creek’s wildlife or recreational uses.
Commenters:  Roger Martin, Sara Chaves Beam

Comment: Sub-aquatic vegetation is low, and turbidity, heavy algae, suspended solids, and siltation are currently severe problems within Urbanna Creek.  There have been no assurances made that the proposed discharge will not collapse Urbanna Creek’s remaining ecosystem.
Commenters:  John Zuegner

Staff Response: As stated above, the Water Quality Standards define what is needed to maintain ambient water quality for fish and wildlife habitat, and primary and secondary contact recreational uses.  The receiving stream has been characterized as both intermittent and, due to the downstream swallow hole, unmodelable, and therefore cannot be characterized further by DEQ water modeling methods. In these cases, the most conservative approach is taken and very stringent conventional pollutant limitations are assigned.  Effluent limitation calculations are not given the benefit of dilution, and therefore are limited to meet Water Quality Standards prior to discharge.
 
Further characterization of the stream is not warranted, as “end-of-pipe” effluent limits represent the most conservative permitting approach.  By the time the effluent travels the >0.8 mile distance to Urbanna Creek, it will have been treated further by natural attenuation and will meet the requirements determined by the Water Quality Standards for maintaining current wildlife and human uses.
 

DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

Comment: Urbanna Creek is recognized statewide as a historical and recreational water body.  Treated wastewater should not be allowed to discharge to a historical creek.
Commenters:  Urbanna Town Council/Janet Smith, Roger Martin

Staff Response: Only the designation of Urbanna Creek as a Tier III would prohibit point source discharges.  The water body will be protected for its current natural and human resources by compliance with the Water Quality Standards, which will be achieved by compliance with the proposed permit re-issuance.

DEQ staff recommends that no change to the proposed permit is necessary in response to this comment. 
 
Comment: Independent testing for fecal coliform in Urbanna Creek has revealed “smoking hot” levels due to the existing two wastewater treatment plant discharges as well as dumping from boats within the creek.  Extensive aquaculture activities outside of Urbanna Creek will most likely be affected by the proposed discharge because of additional bacteria and nutrients introduced to and carried by Urbanna Creek to the Rappahannock River.
Commenters:  Sarah Chaves Beam

Staff Response: During the draft permit re-issuance’s development, the VDH Department of Shellfish Sanitation was contacted in order to determine if, by their modeling methods, the proposed discharge would have any affect on the existing shellfish condemnation, or would cause further condemnations or closures downstream.  The VDH/DSS responded that they did not object to the permit’s re-issuance and that it would not cause an increase in size or type of shellfish condemnation.  A TMDL for Urbanna Creek addressing fecal coliform bacteria levels was conducted in 2004-2005.  It was determined that sources of fecal coliform consisted of the following percentages listed below:

Livestock                  17%
Wildlife                      36%
Human                     23%
Pets                         24%
Point Sources        <<1%

The category of “Human” sources has been noted in the TMDL as being from failed septic systems and from boating activity.  As stated above, the VDH/DSS has determined that any aquaculture activities located downstream of the proposed discharge will not be affected. 

DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

Comment: Non-point sources are contributing to a large portion of the pollution problems of Urbanna Creek. The proposed wastewater treatment plant will promote growth within in the county and cause further non-point source pollution due to housing construction.  The discharge should not be allowed, and in addition, a plan should be implemented to reduce the impacts of population growth that includes stipulations to: a) enforce better land use practices, b) adopt new DCR sedimentation control and storm water regulations, c) encourage better agricultural practices, and d) educate citizens of what they can do to reduce or eliminate pollution to Urbanna Creek.
Commenters:  John Zuegner

Staff Response: Land use and zoning issues are the prerogative of local, rather than State, government and therefore are not within our authority to use as a basis to re-issue, modify, or deny the proposed permit.

DEQ staff recommends that no change to the proposed permit is necessary in response to this comment. 

Comment: The modeling effort conducted on the receiving stream for the proposed wastewater treatment plant only addresses the actual receiving stream, not the water bodies to which the receiving stream flows, like Urbanna Creek.  The model assumes that the noted “swallow hole” will prevent the discharge from reaching Urbanna Creek, and does not evaluate the impact of the effluent on Urbanna Creek once it has traveled via subsurface conductance and leached into Urbanna Creek. Also, no evaluation has been conducted on the impact that the proposed discharge will have on the brown algae noted in stream model.
Commenters:  Clifford Randall, Stan Coloff

Staff Response:  DEQ staff performed a field site visit of the receiving waters in May 2003 to determine the viability of using established DEQ mathematical water quality modeling tools.  During their site visit investigation, DEQ staff observed the accumulation of brown filamentous algae along the bottom of the stream channel (as compared to green algae floating along the top).  The brown algae are believed to be a diatom population, which are commonly found in stream with sandy bottoms, small flows, and good water quality.  Diatoms are general indicators where there is not an excessive nutrient problem.  DEQ staff also observed that stream flow (about 1.5 feet wide and approximately 1-inch deep at the time of the site visit) completely disappeared into a hole on the west side of the channel bank, approximately 500 downstream of the proposed outfall point.  DEQ “desktop” surface water quality modeling tools are not designed to analyze sub-surface absorption flows.  In addition, the length of stream reach from the outfall point to the “swallow hole” was deemed inadequate to appropriately use available DEQ modeling tools.  In situations where standard DEQ models are not applicable due to complex or site-specific situations, long-established DEQ protocols provide for effluent limitations to be established based on conservative, best professional judgment.  1987 DEQ guidance establishes cBOD5=10 mg/L, TSS=10mg/L, and TKN=3 mg/L to be representative of “self sustaining” effluent limits, or those capable of maintaining the Water Quality Standards if the stream were to consist of 100% effluent.  These effluent limitations have been incorporated into the proposed permit.  Effluent that achieves Water Quality Standards prior to entering the “swallow hole” should benefit form further biological treatment as it travels via subsurface conductance.  It can only be assumed that the exchange capacity caused by subsurface travel will enable pollutant levels to be further reduced before reaching Urbanna Creek.  Further downstream analysis of effluent that is already required to achieve Water Quality Standards at “end-of-pipe” is not warranted.

DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

Comment: This permit reissuance is prohibited by SWCB regulation 9 VAC 25-31-50 C.1 and CWA regulation  40 CFR 122.4(a) which states that a permit may not be issued if the conditions of the permit do not provide for compliance with the requirements of the CWA, or any regulations promulgated under the CWA.  SWCB regulation 9 VAC 25-31-220 and CWA regulation 40 CFR 122.44 require that all permits include conditions necessary to achieve and maintain applicable WQS.  The proposed wastewater treatment plant’s discharge will eventually reach the Chesapeake Bay, and in 2004 the Commonwealth of Virginia established water quality standards for the designated uses of the tidal portions of the Rappahannock River and the Chesapeake Bay.  The draft permit does not address these pollutants of concern, including total nitrogen or total phosphorus, and therefore violates SWCB regulation 9 VAC 25-31-220 and CWA regulation 40 CFR 122.44, and in doing so, violates 9 VAC 25-31-50 C.1  and 40 CFR 122.4(a).
Commenters:  Chesapeake Bay Foundation/Joseph Tannery

Staff Response: DEQ staff disagrees with the interpretation that the permit fails to address water quality standards for the tidal Rappahannock River and Chesapeake Bay and, therefore, violates 9 VAC 25-31-220 and 40 CFR 122.44.  9VAC 25-40-10 of the “Regulation for Nutrient Enriched Waters and Dischargers Within the Chesapeake Bay Watershed” regulation states, “The provision of this regulation [9VAC 25-40-10 et. seq.] and the Water Quality Management Planning Regulation (9VAC 25-720) constitute the nutrient reductions requirements for point source dischargers in the Chesapeake Bay Watershed to protect the Chesapeake Bay and its tidal rivers.”  The regulations establish no requirements to include total nitrogen or total phosphorus effluent limitations for municipal facilities within the Bay watershed with a design flow of less than 40,000 gallons per day.  Consequently, the proposed permit is in full compliance with all applicable legislation and water quality regulations.

DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

3) Issue: Are the design flows reflected by the permittee accurate?

Comment: The Middlesex County government is not truthfully telling the public or DEQ what the real design capacity of the wastewater treatment plant will be. 
Commenters:  Urbanna Town Council/Janet Smith, Peter Mansfield, James Knupp

Comment: Once the wastewater treatment plant is built, the County will ask DEQ to expand and DEQ will not impose stricter limitations on the permittee because it would cause economic hardship.  This will cause higher pollution of Urbanna Creek.
Commenters:  Roger Martin, Peter Mansfield

Comment: The Middlesex County government’s (permittee’s) consulting engineer has been purposefully misleading the public and DEQ as to the size and design capacity of the proposed wastewater treatment plant.
Commenters:  Sean Kemple, Peter Mansfield  

Comment: If the proposed treatment plant is built, and they decide to expand, there will be a period of time in which DEQ is developing the modified permit for the expansion.  During that period, or any time the permit is reopened, the flow from the treatment plant will go unchecked and the permittee will be able to discharge freely without limits.
Commenters:  Clyde Roper

Staff Response: The application for the proposed permit re-issuance requested a design flow of 39,900 gallons per day, and is the same as the original 2003 permit issuance.  The flow from the facility must be monitored on a daily basis and reported monthly to DEQ via DMR’s (data monitoring reports). If the permittee discharges at a rate that is within 95% of the permitted design capacity for three consecutive months, the proposed permit requires the development and implementation of a plan to address the high influent flows (for example, controls to prevent infiltration/inflows, etc.)  Exceedances of permitted pollutant loads (resulting from the excessive flows) will be handled as permit violations.  If it is determined that the permittee cannot reduce the discharge rate, a modification of the permit will be required for increasing the design flow, which will incorporate reevaluating effluent limitations to meet a larger design flow.  Modification of the permit would require downstream riparian owner notification and an opportunity for public participation in response to publication of another public comment period.  

The design of a wastewater treatment plant must meet the requirements of DEQ’s Sewage Collection and Treatment (SCAT) regulations (9VAC 25-790).  These regulations include requirements pertaining to the sizing of treatment plant components to handle anticipated peak (as compared to average) effluent flows.  These requirements are necessary to avoid overflow or treatment bypass conditions during peak events.  The consulting engineer for Middlesex County has further enhanced the sizing and design of the treatment plant components to improve the performance and reliability of its operations.  However, while the treatment plant may be capable of treating to higher peak flows, the proposed permit authorizes no greater than an average design flow of 39,900 gallons per day.

It has been made public by the permittee that the long-term plan for the proposed treatment facility will be to expand and potentially accept sewage currently being treated by antiquated and/or outdated treatment facilities within neighboring areas (Christchurch School, Urbanna WWTP, and the Regional Jail).  At the time that the permittee plans to expand this facility, modifications will be made to the permit that will require compliance with all limitations, monitoring, and conditions mandated by any applicable legislation and/or regulations that exist at the time.

Any potential modification of a permit cannot be acted upon by the permittee until the permit modification is issued by DEQ. During the time that a permit is being modified, the permittee must comply with the existing permit.

DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

4) Issue:  Should nutrient controls be added even though the design flow is less than the regulated threshold?

Comment: The permittee is utilizing a “loophole” within State regulations to avoid nutrient limitations by requesting a permit for a design flow of 39,900 gallons per day rather than 40,000 gallons per day.  If the proposed discharge is allowed, nutrient limitations should be applied. 
Commenters:  John Zuegner, Peter Mansfield, H.Deiter & Mary E. Hoinkes, Stan Coloff, James Knupp

Comment: Nutrients added by the proposed wastewater treatment plant will only add to the two existing discharges on Urbanna Creek.  One has a design flow under 40,000 gpd and the other is considered a significant discharger, but cannot meet its nutrient allocations.  The one that is a significant discharger cannot meet the nutrient allocations given in the Chesapeake Bay Watershed Nutrient General Permit, and therefore purchases nutrient credits.  So essentially, there will be three dischargers to Urbanna Creek which do not have nutrient limitations.
Commenters:  Mike Floyd, H.Deiter & Mary E. Hoinkes

Comment: Flow from the proposed wastewater treatment plant should be limited in the permit.  Otherwise, nutrient offsets should be required of the permittee.
Commenters:  John Zuegner, Robert Burnley

Staff Response: The proposed treatment plant will be designed to meet nutrient removal standards for a “new discharger” that is not considered a significant discharger under §62.1-44.19:14.C.5 (Code of Virginia) and 9 VAC 820-10 (Chesapeake Bay Watershed General Permit Regulation).  In addition, Total Kjeldahl Nitrogen is limited to a concentration of 3.0 mg/L monthly average in the draft permit re-issuance. It should be noted that the original permit was issued in December 2003 with the same design flow criteria. This 2003 issuance existed prior to the promulgation of the above regulations regarding the definition of a significant discharger for the purposes of determining coverage under the Chesapeake Bay Watershed General Permit.   

Monitoring and testing requirements for established pollutant limits in permits are divided into categories depending on the design flow of the permitted facility.  With each increasing flow category, the monitoring and testing requirements, and costs, can increase significantly, causing economic strain on small dischargers.  The first monitoring and testing category for municipal facilities stops with a design flow of 40,000 gallons per day.

The design flow capability of a treatment facility is not the rate at which the permittee discharges.  Nevertheless, it is used as a basis for limitation development in order that conservative calculations and assumptions may be made.  The permittee is required to notify DEQ if the facility discharges at a rate within 95% of the design flow, at which point DEQ takes appropriate actions.  Part I.B.1 of the draft permit addresses this.

DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

Comment: The Middlesex County government has claimed that the local high school’s existing drainfield is failing and that the high school will need to be served by the proposed wastewater treatment plant.  A few concerned citizens do not believe that this is true.
Commenters:  H.Deiter, Mary E. Hoinkes, Sean Kemple

Staff Response: The reasoning provided by a permittee for requesting a discharge permit is not a part of  DEQ’s evaluation of whether or not the discharge is permissible by applicable law. 

DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

5) Issue: Will the proposed wastewater treatment plant be reliable?

Comment: Concern exists over the permittee’s ability to afford and construct a high quality treatment plant that will not fail during power outages and severe weather conditions.
Commenters:  H.Deiter & Mary E. Hoinkes, Urbanna Town Council/Janet Smith, Peter Mansfield, Alana Courtney

Staff Response: As part of the conditions and limitations set forth in the draft permit, the permittee is mandated to comply with the requirements set forth in 9 VAC 25-790-390 of the Sewage Collection and Treatment Regulations to meet a Reliability Class of One (1).  This requires that the permittee take all precautions to be able to operate at peak flows for a minimum of 24 hours without power. 

DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

6) Issue: Has groundwater quality been considered with respect to the existing “swallow hole” located downstream of the proposed discharge?

Comment: Groundwater contamination may occur due to the “swallow hole” that the intermittent stream flows into.  This is sited in the Stream Sanitation Memorandum used for permit development.
Commenters:  Clifford Randall

Staff Response:  It is not expected that groundwater resources will be affected.  In addition, the effluent from the proposed treatment facility will be treated to much higher levels than the surrounding septic systems, which rely on soil as a medium for bacterial growth and treatment of raw sewage. DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

7) Issue:  How does the existing bacterial TMDL for Urbanna Creek have a bearing on this permit’s re-issuance?

Comment: The current TMDL for Urbanna Creek addressing Fecal Coliform bacteria states that “ . . . measures must be taken to reduce pollutant levels in the water body.”  The proposed wastewater treatment plant will go against this statement.
Commenters:  Sean Kemple

Comment: This permit re-issuance is prohibited by SWCB regulation 9 VAC 25-31-50 C.9 and CWA regulation 40 CFR 122.4(i) which states that no new discharges will be allowed to water bodies if it will contribute or cause the water segment to violate WQS.  These regulations do provide for an exception in that if a TMDL has been established for that water body, then a new discharge to that water body is only allowed if it was given an allocation in the TMDL and existing discharges have been given a compliance schedule with conditions that will bring the water body into compliance with the WQS.  Since a TMDL has been established for Fecal Coliform on Urbanna Creek, and existing dischargers do not have a wasteload allocations or a compliance schedule to meet them, and the proposed discharger has not been given a wasteload allocation, the permit is prohibited.  It has also been established that the Chesapeake Bay watershed is “impaired” by nutrient pollution.  Since a TMDL has not been implemented for the Chesapeake Bay for nutrients, the proposed discharge will contribute additional nutrients to the water body that is already violating WQS.
Commenters:  Chesapeake Bay Foundation/Joseph Tannery 
  
Staff Response: The proposed discharge is to an intermittent tributary of Urbanna Creek 0.8 miles upstream of tidal waters.  The Virginia Department of Health/Department of Shellfish Sanitation (VDH/DSS) has assigned two different types of shellfish closures to Urbanna Creek.  The upper portion of tidal Urbanna Creek (area 42B) has been designated by the VDH/DSS as a “prohibited” shellfish growing area due to the presence of the HRSD Urbanna Sewage Wastewater Treatment Plant, which discharges directly to the tidal portion of Urbanna Creek.  In prohibited areas, shellfish are not allowed to be harvested for market.  Prohibited shellfish areas are not considered impaired for fecal coliform (and thus do not require a TMDL) because this administrative closure by the VDH removes shellfish harvest as a beneficial use of these waters.

The lower portion of tidal Urbanna Creek (area 42A) has been designated as a “condemned” shellfish growing area, where harvested shellfish must first be transported for depuration in other non-condemned waters for 30 days prior to consumption or sale.  The TMDL addressing fecal coliform bacteria that is referenced by the commenter only applies to the portion of Urbanna Creek corresponding to shellfish area 42A.  The proposed discharge (in addition to the Middle Peninsula Regional Security Center, VA0073318) would flow to area 42B (if either effluent were to reach tidal Urbanna Creek).  Since these existing dischargers will not expand to the current shellfish harvest prohibited zones, they are not addressed or subject to the TMDL.  PRO Planning and Assessments staff have certified that the proposed permit will not be in conflict with the Urbanna Creek fecal coliform TMDL.

Regarding the nutrient impairment of the Chesapeake Bay, as previously cited, 9VAC 25-40 and 9VAC 25-720 constitute the nutrient reduction requirements for point source dischargers in the Chesapeake Bay Watershed to protect the Chesapeake Bay and its tidal rivers.  These regulations establish no additional permitting requirements for municipal facilities within the Bay watershed with a design flow of less than 40,000 gallons per day.  Consequently, the proposed permit is in full compliance with all applicable legislation and water quality regulations.

DEQ staff recommends that no change to the proposed permit is necessary in response to these comments. 

8) Miscellaneous Comments

Comment: The Middlesex County government (the permittee) does not sufficiently consider the wishes of its citizens because the Town of Urbanna is represented by an elected district supervisor who covers a much larger area than the Town.  If the Town were independently represented in the county government, there would be more political pull and the decision to construct a wastewater treatment plant would not have come to fruition.
Commenters:  Robert Straw, Roger Martin

Comment: The location of the venue (outside of Urbanna), time of year, and the temperature discouraged people from attending the public hearing held on January 21, 2009 at 7:00 pm.  Also, the question and answer session held prior to the hearing was too short.
Commenters:  Sean Kemple

Comment: The Town of Urbanna’s jurisdictional boundary extends to the middle of Urbanna Creek.  The citizens of the Town do not want to allow the proposed discharge to occur, but do not have independent representation in the Middlesex County government in order to oppose it.
Urbanna Town Council/Janet Smith

Staff Response: These comments are not relevant to DEQ’s determination of applicable State environmental regulations. 


 

PUBLIC COMMENTS AT STATE WATER CONTROL BOARD MEETINGS: The Board encourages public participation in the performance of its duties and responsibilities. To this end, the Board has adopted public participation procedures for regulatory action and for case decisions. These procedures establish the times for the public to provide appropriate comment to the Board for its consideration. 

For REGULATORY ACTIONS (adoption, amendment or repeal of regulations), public participation is governed by the Administrative Process Act and the Board’s Public Participation Guidelines. Public comment is accepted during the Notice of Intended Regulatory Action phase (minimum 30-day comment period) and during the Notice of Public Comment Period on Proposed Regulatory Action (minimum 60-day comment period). Notice of these comment periods is announced in the Virginia Register, by posting to the Department of Environmental Quality and Virginia Regulatory Town Hall web sites and by mail to those on the Regulatory Development Mailing List.  The comments received during the announced public comment periods are summarized for the Board and considered by the Board when making a decision on the regulatory action.

For CASE DECISIONS (issuance and amendment of permits), the Board adopts public participation procedures in the individual regulations which establish the permit programs. As a general rule, public comment is accepted on a draft permit for a period of 30 days. If a public hearing is held, there is an additional comment period, usually 45 days, during which the public hearing is held. 

In light of these established procedures, the Board accepts public comment on regulatory actions and case decisions, as well as general comments, at Board meetings in accordance with the following:

REGULATORY ACTIONS:
Comments on regulatory actions are allowed only when the staff initially presents a regulatory action to the Board for final adoption. At that time, those persons who commented during the public comment period on the proposal are allowed up to 3 minutes to respond to the summary of the comments presented to the Board. Adoption of an emergency regulation is a final adoption for the purposes of this policy. Persons are allowed up to 3 minutes to address the Board on the emergency regulation under consideration. 

CASE DECISIONS: Comments on pending case decisions at Board meetings are accepted only when the staff initially presents the pending case decision to the Board for final action. At that time the Board will allow up to 5 minutes for the applicant/owner to make his complete presentation on the pending decision, unless the applicant/owner objects to specific conditions of the decision. In that case, the applicant/owner will be allowed up to 15 minutes to make his complete presentation. The Board will then allow others who commented during the public comment period (i.e., those who commented at the public hearing or during the public comment period) up to 3 minutes to exercise their rights to respond to the summary of the prior public comment period presented to the Board.  No public comment is allowed on case decisions when a FORMAL HEARING is being held.

POOLING MINUTES:  Those persons who commented during the public hearing or public comment period and attend the Board meeting may pool their minutes to allow for a single presentation to the Board that does not exceed the time limitation of 3 minutes times the number of persons pooling minutes, or 15 minutes, whichever is less.

NEW INFORMATION will not be accepted at the meeting. The Board expects comments and information on a regulatory action or pending case decision to be submitted during the established public comment periods. However, the Board recognizes that in rare instances, new information may become available after the close of the public comment period. To provide for consideration of and ensure the appropriate review of this new information, persons who commented during the prior public comment period shall submit the new information to the Department of Environmental Quality (Department) staff contact listed below at least 10 days prior to the Board meeting. The Board’s decision will be based on the Department-developed official file and discussions at the Board meeting. In the case of a regulatory action, should the Board or Department decide that the new information was not reasonably available during the prior public comment period, is significant to the Board’s decision and should be included in the official file, the Department may announce an additional public comment period in order for all interested persons to have an opportunity to participate.

PUBLIC FORUM: The Board schedules a public forum at each regular meeting to provide an opportunity for citizens to address the Board on matters other than those on the agenda, pending regulatory actions or pending case decisions.  Those wishing to address the Board during this time should indicate their desire on the sign-in cards/sheet and limit their presentations to 3 minutes or less.

The Board reserves the right to alter the time limitations set forth in this policy without notice and to ensure comments presented at the meeting conform to this policy. 

Department of Environmental Quality Staff Contact: 
Cindy M. Berndt, Director, Regulatory Affairs, Department of Environmental Quality,
629 East Main Street, P.O. Box 1105, Richmond, Virginia 23218
Phone (804) 698-4378
Fax (804) 698-4346
e-mail:

posted 04.03.2009

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