Now that EPA has promulgated Numeric Nutrient Criteria (NNC) for Florida and now that the Florida Department of Environmental Protection (FDEP) has moved ahead with their own rule development, how do you see your utility and other Florida utilities being affected?
Well for sure things went from strange to real strange once FDEP decided to move ahead with rule development. Under the EPA rule, all utilities were in a complete state of suspense. It is crystal clear and cannot be misunderstood by anyone that the standards established under their rule are “end of pipe” standards. And how anyone is going to meet those standards is a real guess. Further, EPA has no guidelines for permitting, compliance or enforcement and has steadfastly refused to develop any. Although EPA has said that it is up to FDEP to develop compliance and enforcement regulations, FDEP cannot do that. Under the Florida Administrative Procedures Act, a standard must be scientifically defensible. The EPA standards fall woefully short of that. Now FDEP is hurrying to develop something meaningful and in the short time they have, we all fear FDEP falling short.
Do you see the Florida initiative as a positive or negative development?
It is a very positive move. Mainly because they intend to protect the aquatic life of our water resources — something the EPA rule could not accomplish. So far, what we have seen from FDEP on this is positive, although many of us take issue with some elements. Personally, I support this initiative. And I supported the FDEP effort to find scientifically defensible NNC before EPA stepped in.
As a member of the FWEA Utility Council Board, do you see the Florida initiative as helping or hurting the FWEA challenges and other initiatives?
The current FDEP initiative seems to point to their agreement with the EPA rule. But it is clear that FDEP would prefer that reason prevail and that if a rule for NNC is needed that it contain standards that will not harm the biological health of the individual water body. So let FDEP push on in that direction. The various suits filed against this rule and other actions by EPA address many other issues than just the science part.
What is the likelihood that FDEP will develop a rule by early 2012? And do you think that EPA will rescind its determination and rule if they are successful?
Good question. I believe that FDEP will develop water quality standards by early 2012. I am not that optimistic that a complete rule including permitting, compliance and enforcement can be developed in that timeframe. Of course, EPA will not be able to do that either, so I guess it is a wash.
If you want me to speculate on whether EPA will rescind if FDEP is successful, then I will, but believe me I am completely unqualified to even remotely guess what a politician might do at any given moment. EPA is a pure political animal and I believe their pronouncements are based solely on what side of the bed some bureaucrat woke up on that morning. If the question is whether they will rescind their necessity determination, I am fairly sure they will not do that since that would be an admission of error on their part. But I don't know the process for these kinds of things. I have never heard of the federal government repealing one of their own laws so this could set a precedent. Well wait, they did repeal that one amendment about drinking. Thank goodness, or I would have never made it through college. So there is some hope that EPA will change.
Have you noticed any change in EPA relative to establishing NNC in other states as a result of the Florida NNC rulemaking process and how it has been received?
Early on in the Florida process, the EPA staff exhibited arrogance and bluster. Now that tone seems to have left some, and the word "collaborative" seems to have entered their discussions. I don't know what each state is doing but I am certain that no state has established water quality standards in a one-size-fits-all format. Most are trying to get something out there in the NNC realm to simply satisfy EPA. And EPA does not seem to be pushing denial of their requests. It is interesting to note that the Chesapeake Bay is singled out for special attention. The EPA approach there is to require TMDL’s for the Bay and a basin management action plan rather than numeric nutrient criteria.
Many utilities in Florida seem to have adopted a wait-and-see approach with respect to the developing strategies for improving nutrient removal. Do you think that is a reasonable approach or do you think that there may be some other course or action that may be worthwhile?
Wait and see is all that utilities can do at this point. Let's say that a utility could somehow develop that magic technology that would allow them to eliminate all nitrogen and phosphorus, the question is, "would they?" I would have to say they would not because those utilities are more prone to protect the environment and elimination of all nutrients is a bad thing. The Florida total maximum daily load process has led to reasonable nutrient goals for water bodies and, coupled with an active basin management action plan, has been remarkably successful where implemented. We did not get into the poor water quality realm overnight and we will not get out of it overnight. I guess if you had to spend money on a worthy and successful water quality improvement program that would be eventually axed by EPA, then you probably would want to hang loose for a little while.
Do you think that utilities may be pushed beyond the limits of technology in order to comply with the EPA rule or is it just a matter of economic impact? Do you think the FDEP rule is likely to have more favorable economic impact?
As an engineer, I like to think that I can do anything. So just give me all your money and I will make it happen. But I am pretty sure that my customers will not give me all their money. That is sort of the level of technology we are talking about with the EPA rule. But if we were required to go beyond an easily achievable limit of technology or maybe even a near-impossible level of achievement, would it be a good thing to try to do? The real answer to that is a big no. The standards being required by EPA have as much chance of harming the biological health and aquatic life of a water body as doing good.
If I went to my customers now and said, "Give me all your money, but I can't tell you for sure that any of the water bodies we cherish will get better or worse," I am pretty sure I know their answer to that one. And that is what we as utilities are being asked to do by EPA. At least with FDEP, I could tell my customers the health of our water bodies will improve.
Any other thoughts?
What I see happening out there is people taking sides without knowing what is at stake and what has been done. Unless you have studied in detail what EPA has wrought and unless you have some kind of background in science and unless you have operated a permit before, you simply cannot understand the impact of the rule. The environmental cults fall short on all those yet they chant their mantra of “people bad, EPA good.” So this issue is as much a PR campaign as it is a water quality improvement campaign. In fact EPA has their own PR firm in Florida to spin for them. The utilities are all not-for-profit and can't afford a similar campaign.
One question I am asked often is what happens if you don’t comply with the EPA rule. Well, what happens is, EPA writes you a bunch of nasty-grams and then they put someone in prison. For my utility that someone would probably be me. For me, going to federal prison might not be that bad of a retirement plan, but since they closed the prison at Eglin here, I would probably serve my time out of state. Which means I would be the first person to ever retire OUT of Florida.