What if . . . . . . you were the Portland Water District? Could you violate environmental regulations for five years before anyone did something about it? Sure you could. BY ALEX IRVINE

Let’s say you are operating a wastewater treatment facility in a small city on the northeastern coast of the United States. You process and treat water for approximately 100,000 people, and discharge into a bay that is extensively used for fishing, boating, and swimming. Your facility, operational since 1979, usually manages just fine when the weather is clear, but when it rains, the overflow from city storm sewers overwhelms your processing capacity and an awful lot of untreated or partially treated wastewater — containing what is in the parlance of the business known as "organic material" — ends up in the ocean.

These events, called "combined sewer overflows," are the bane of municipal water authorities throughout the country, and Portland is no exception. The vast majority of city sewer systems were built before the passage of the Clean Water Act, which means that wastewater facilities are constantly being retrofitted to achieve much more stringent standards than those for which they were originally designed. But given funding priorities there’s only so much money available for sewer rehabilitation; in Portland, for example, rebuilding decrepit schools is always going to trump water management.

Concerning the Portland Water District’s East End wastewater treatment facility, the gory details are thus: EPA lists Casco Bay in its 303(d) category of impaired waters requiring that area dischargers take steps to improve their outflows, particularly of fecal coliform bacteria that endanger shellfish. According to its Maine Pollutant Discharge Elimination System (MEPDES) permit, the East End plant is allowed to discharge 50 colonies per liter (co/L) of fecal coliform bacteria in water that has been through the entire treatment process and 200 co/L in water that has only undergone primary treatment. During the last two years, the plant has violated EPA and MEPDES standards for eight straight quarters, discharging pollutants into the bay at a rate that has sporadically exceeded permitted amounts by as much as 7900 percent — which is to say 79 times (!) as much of a given pollutant as is supposed to be permissible.

In the most recent quarter recorded on the EPA’s ECHO Web site (http://www.epa.gov/echo), which archives compliance information on every permitted facility in the country, the Portland wastewater treatment plant exceeded residual chlorine standards by 667 percent and fecal coliform standards by 2300 percent. For the average citizen of Portland, this means that, on days following heavy rain in the summer of 2003, kids at East End Beach were swimming in water with seven times as much chlorine and 23 times as much fecal coliform bacteria as are deemed safe for human contact.

And this is an improvement. EPA records list the East End plant as in "significant noncompliance" for April 2002 through March 2003, but from April to September of 2003 the designation is "reportable noncompliance." Either category is supposed to provoke enforcement action, but none was taken against the Portland Water District (PWD) until November 12 of 2003, when the state Department of Environmental Protection (DEP) issued a Notice of Violation.

The state’s list of PWD transgressions stretches back to 1998. Why was the plant allowed to violate its permitting requirements and discharge limits for five years before being cited? DEP Director of Water Resource Regulation Brian Kavanah says, "Typically we look at the compliance record of all our dischargers every month. We knew in Portland’s case there was a lot of upgrade work going on, and we were hopeful that would take care of some of the violations. We felt it got to a point where we had to take a closer look and act on it."

The preferred outcome of negotiations following a notice of violation is a consent agreement, under which the violator is given a time frame for the completion of specific steps designed to eliminate the problem. In addition, says Kavanah, "There are typically penalties associated with consent agreements."

If talks between DEP and the PWD don’t arrive at a consensus, court action is a possibility. A slim possibility, apparently, because PWD plant/systems manager Michael Greene makes a point of saying that the contact between PWD and DEP has been cooperative. In fact he’s glad that the state stepped in when they did, since the Conservation Law Foundation (CLF) and Friends of Casco Bay had been meeting with the PWD about the plant’s violations.

Casco Bay Keeper Joe Payne notes that the PWD is working in "a difficult environment," and although "CLF and us had agreed not to sue" for the time being, litigation was a possibility in the not-too-distant future. Having the state put the plant on a compliance schedule makes a private lawsuit much less likely, and a draft consent agreement already exists. If no large sticking points emerge during the course of final settlement talks, Greene anticipates a final consent agreement by around June 1.

It might reasonably be expected that enforcement action wouldn’t need five years of consistent violations to get started, but two factors have conspired to make the process of enforcing environmental law laborious and unrewarding.

The first is that the Bush EPA is getting out of the enforcement business. A study done by Knight-Ridder recently showed that EPA enforcement actions have dropped precipitously during the nearly three years of George W. Bush’s presidency. One benchmark of enforcement zeal is the issuance of violation notices, the EPA’s first step in the process of formally addressing pollution problems. During the first Bush administration, the EPA issued an average of 195 notices per month; during Clinton’s two terms, the average was 183; the present EPA has averaged only 77. And even that paltry number is dropping. The average for 2003 is 51, and in October of last year, the latest month covered in the Knight-Ridder study, the EPA issued only 35 violation notices.

In addition, much of the enforcement work traditionally handled by the EPA is being devolved onto the states. The Maine Department of Environmental Protection is now primarily responsible for enforcing the Clean Water Act within state borders, and the state DEP typically doesn’t bring an enforcement action without going through the attorney general’s office and consulting with the violator. This draws the timeline out, and so does the back-and-forth over the final wording of the consent agreement. So if Michael Greene and the PWD are at fault for failing to notice and/or correct some of the problems at the plant, state and federal environmental authorities must shoulder at least as much blame for their reluctance to step forward and take action.

The Notice of Violation (NOV) from the state DEP is eye-opening: twenty-two pages of itemized violations, including failure to conduct mandatory monitoring of pollution levels in treated water, discharging water containing dramatically elevated levels of pollutants, and repeated equipment breakdowns that have led to the discharge of millions of gallons of raw sewage into Casco Bay and Back Cove.

DEP’s Brian Kavanah notes that the state is "having discussions with the Water District about the facts of the case," which are subject to change as the PWD lays out its side of the story. PWD public relations manager Michelle Clements agrees, pointing out that the numerical majority of the violations listed in the NOV involve reporting failures rather than discharge exceedances.

According to Michael Greene, these reporting failures are the result of a conflict between the plant’s federal and state permitting requirements. The federal permit required fecal coliform and residual chlorine reports five times a week; the state permit required daily reports. Given a more lenient federal reporting form to fill out every month, the East End plant "went 10 years before anybody noticed" that it was failing to fulfill its state reporting requirements, Greene says. He was head operator of the plant during much of this time, and acknowledges he should have picked up on the discrepancy.

"I feel I’m culpable," he says, but he also correctly points out that the reporting shortfall doesn’t mean that the plant was exceeding its effluent limits on days when reports weren’t filed.

Even if the state drops the reporting violations, there are more than enough discharge problems for Greene and the PWD to handle. Most of these occur when the flow of water through the plant reaches 36.8 million gallons of water per day. "We’re not hydraulically able to process that," Greene says, "so some of it has to be diverted."

When wastewater is diverted, it undergoes only primary treatment — the physical separation of solids — and chlorine treatment before being piped out into Casco Bay. Secondary, or biological treatment, during which bacteria metabolize the organic material in the water and are then precipitated out, can only occur if the water is moving through the plant slowly enough for the bugs to do their work. When it rains, there’s too much water, and chlorine has to do the job alone.

Given the plant’s ongoing problems with calibration and monitoring of the chlorination process, there were bound to be violations, and violations there were. On a number of occasions, the NOV lists the fecal coliform population of a daily sample as ">1200co/L," which Greene says is technical shorthand for "more than anybody could count."

The District is refreshingly upfront about its problems. "We know we have a problem with violations at our East End plant," Clements admits.

Greene is just as open. On a tour of the facility, he points to a group of welders working in a tunnel that leads out to the primary treatment area. "This place has been in chaos for the past four years," he says over the noise, attributing most of the violations to equipment and processes that either have been or are being replaced. "We’ve already done a lot of what [the DEP] would be asking."

Casco Bay Keeper Joe Payne agrees. "I think they’ve done a lot of voluntary upgrades," he says, "and I think they’ve invested the money wisely."

Greene expects the final consent agreement to focus on the disinfecting of the bypass and secondary systems — in other words, on the plant’s monitoring and control over the application of chlorine. If not enough is applied, large colonies of fecal coliform survive and cause 7900-percent exceedances; if too much is applied, it’s hard to remove it all before the water is piped out into the bay, causing a different violation. The plant’s new control systems are lessening both the number and severity of violations, and more effective removal of solids will mean fewer clumps of fecal coliform that survive chlorine disinfection.

Apart from the compliance timeline, the district is (per the draft consent agreement) in for a fine of tens of thousands of dollars. Under state law, up to 80 percent of such fines can be paid off by "supplemental environmental projects," broadly defined as any undertaking providing an environmental benefit that doesn’t solely benefit the violator. The beach houses at the East End Beach are an example of a supplemental project. They were built after the PWD’s last go-round with environmental authorities in the early ’90s.

"We’ve got the tools pretty much in place" to get in compliance, Green says, noting that since the new control systems came on line this past summer, egregious violations are way down. Statistics from the EPA Web site seem to confirm this, and Joe Payne has qualified praise for the district’s work: "In some things they’re playing catch-up, in other things they’re ahead of the curve."

Whatever the specifics of the consent agreement, the East End plant is in for some more work, and it’s ratepayers who will likely pick up the tab. This is a typical situation for the district; as Payne notes, they are always "balancing the ire of the ratepayers with what needs to be done."

Michael Greene says that the district maintains a renewal and replacement fund that can handle smaller projects — or possibly fines — but the cost of two projects he’d like to undertake runs into the millions, and the PWD is already carrying a number of bonds for upgrades either just completed or still underway. Since 1998, the district has spent approximately $15 million — "of our own accord," Michelle Clements points out — on improvements including better control systems, more efficient treatment and removal of biosolids, and better administration of the chlorine disinfectant.

To completely eliminate the problem of runoff surges, though, the city of Portland would have to separate its storm-sewer system from the wastewater stream treated at PWD. The city is working under a court order to "accomplish a certain amount of separation" from the wastewater stream, says Greene, but that’s a long way from directing all of Portland’s storm-sewer runoff either to a new treatment plant or to an underground storage tank where it could wait until the plant’s throughflow decreased and the runoff treated.

At that point, the price tag of clean wastewater rises to tens of millions of dollars, and Joe Payne says, "I don’t think you or I will see a stormwater treatment plant."

What we will live to see is more overflows and more efforts on the part of the Portland Water District to grapple with the limitations of their overmatched East End facility.

Alex Irvine can be reached at airvine@phx.com