Community/Expert Involvement in Developing a Total Maximum Daily Load (TMDL) Model
Author(s):
Kathryn A. Neeley, Joseph R. Herkert
2001 Kathryn A. Neeley, Joseph R.
Herkert,
and Teresa B. Culver. Used by
permission.
Since the passage of the Clean Water Act, most efforts to
improve water quality have been directed toward the management
of point sources of pollution. As those sources have been
brought under control, attention has turned to non-point
sources, especially agricultural ones. A technology known as
Total Maximum Daily Load (TMDL) modeling is being used to
develop a comprehensive view of all pertinent activity in a
given watershed and of how much pollution a given body of water
can absorb without violating water quality standards. Once a
TMDL is developed, a management plan is created in which the
requirement to reduce pollution is distributed among the
various sources of pollution, both point and non-point. Because
the non-point sources typically are not subject to regulation,
their participation in the management plan is voluntary. This
means that community involvement is crucial to the development
and implementation of the model and management plan. The courts
and litigation have played a prominent role in spurring the
development of TMDLs, which are often developed under the time
pressures created by the strict schedules established by court
orders or consent decrees.
This case describes the development of a TMDL for nitrate in
a low-flow creek and river system that flows through a
predominantly agricultural region and has a single point source
(a poultry processing plant) discharging wastewater into it.
The dominant culture of the local community is Mennonite, which
means that it is not particularly open to outsiders and
reluctant to get involved with government agencies. The case
participants include two environmental engineers who were
involved in the TMDL and interacted extensively with the
community. One was a university researcher who headed the
research team that created the model for the watershed; the
other was an independent consulting engineer who played a dual
role as (1) a paid consultant to the point source and (2) an
unpaid expert advisor to the local Citizens Advisory Group.
Other significant parties involved in the situation were the
poultry processing facility (point source) which had a business
relationship with the large number of poultry farmers in the
community. (Poultry farming and other agricultural activities
originate almost all of the non-point source pollution in the
watershed.) The state agencies charged with maintaining water
quality and carrying out court orders pertaining to the
environment also played an important role in the case, as did
the Citizens Advisory Group, which was made up of about a dozen
citizens, many but not all Mennonites, who provided a focus for
the expression of community concerns and who acted as
intermediaries between the citizens and the state regulators.
Ethical issues arise in the case as a result of the
consultant's dual role and from a number of other factors
including the community's suspicion of regulators, the
uncertainty in the data and the science on which the need for
the TMDL project was base[d], and the bureaucratic nature of
the process in which the TMDL was developed.
Contents
Part I: Consultant Conflict of Interest
The consulting environmental engineer (referred to in the
remainder of this case as "the consultant") worked as a paid
consultant to the poultry processing plant, which is the point
source of pollution in the watershed. This consultant, who is
one of few environmental engineers in the watershed and the
only one working as an independent practitioner, volunteered to
work with the local Citizens Advisory Group to help them
interpret the complex technical and organizational dimensions
of TMDL development. For example, the consultant interpreted
the environmental data that were used to determine the need for
their particular TMDL and to understand the sophisticated
modeling that a TMDL entails. The consultant also helped them
understand the legal context of the TMDL program, the
scientific and technical knowledge that gave rise to the TMDL
program, and the role of EPA and state regulators.
The members of the Citizens Advisory Group, who were an
informally selected sub-set of the community, worked most
closely with the consultant, whose services were highly valued
by both the Advisory Committee and the community at large. The
state regulators also saw the participation of the consultant
as an asset to the process as he played an important and
constructive role as an intermediary or liaison between the
state and the community. Both the point source and the Citizens
Advisory Group were aware that the consultant was providing
advice to both parties.
- Was it proper for the consultant to take the voluntary
position with the Citizens Advisory Group?
- Were there any pitfalls in the dual role that the
consultant should have been on the look out for?
Part II: Expert Communication with Non-Experts
The nitrate TMDL was not the first to be undertaken in this
particular watershed. One had previously been developed for
fecal coliform bacteria. The community did not dispute the need
for the coliform bacteria study, given that the concentrations
of bacteria were almost continually above the water quality
standard, often hundreds of times higher than recommended
levels. In contrast, there were only a few small violations of
the nitrate-nitrogen water quality standard, out of a fairly
small total number of monitoring samples. Furthermore, the
risks from elevated nitrate levels are poorly understood. Only
a small percentage of the human population (the infants) is
typically sensitive to high nitrates, and even then the
response of each infant to nitrates is highly variable. The
"acceptable" level of nitrate-nitrogen in drinking water has
been set to be protective of the most sensitive individual. In
addition to the uncertainty in what was an acceptable level of
nitrate-nitrogen, there is always uncertainty in any computer
modeling predictions. In this case, the relatively small set of
nitrate-nitrogen measurements upon which the performance of the
computer model was based only compounded the problem of model
uncertainty.
The cumulative result of this set of circumstances was that
the citizens were very uneasy about making decisions regarding
an acceptable nitrate management plan based on the results of
modeling.
- How should the research team have addressed this
concern?
Part III: Expert Recommendation of
Allocations
After the research team completed the calibration of the
TMDL model, they presented 8 feasible allocation scenarios that
would allow the watershed to meet the water quality goals.
Their report also included an appendix that listed a number of
extreme scenarios utilized in the model to establish upper and
lower bounds. These extreme scenarios were not technically
feasible in that they called for 100% reduction of various
sources of pollution, a degree of reduction that is not
attainable. To reduce the levels of nitrate-nitrogen, the
research team recommended a scenario that called for a 35%
reduction of the nitrogen discharged from the point source,
which would be regulated, and voluntary reductions from the
non-point sources ranging from 20-50%, depending upon the
agricultural process involved.
At a subsequent meeting, the consultant recommended to the
Citizens Advisory Group that they endorse one of the
technically infeasible scenarios included in the appendix,
which called for 0% reduction from the point source and 100% on
the part of the non-point sources. The reasons stated by the
consultant were that this scenario provided the greatest degree
of flexibility and local control and the least amount of
regulatory intervention in choosing how to manage the
pollutants. He also argued that the point source was being
unfairly singled out and that it had already decreased the
amount of nitrates it released by a significant amount. The
scenario that the consultant recommended gave the members of
the community full responsibility for eliminating the pollution
and gave none to the point source. The Citizens Advisory Group
accepted the consultant's recommendation.
- In making a recommendation based on grounds other than
technical feasibility, was the consultant acting
ethically?
Part IV: Graduate Student Responsibility
A graduate student working on the research team attended the
meeting at which the consultant persuaded the Citizens Advisory
Group to accept the extreme scenario that gave them all the
responsibility for reducing the nitrate levels. The graduate
student was concerned that the interests of the citizens were
not being protected. It seemed to the student that the
consultant was unable to fairly represent the interests of both
the point source and the farmers. In addition, the student
worried that the farmers were unduly concerned with flexibility
and retaining local control over the specific measures that
they would use to reduce the nitrogen loads. From the student's
point of view, it seemed that the citizens overlooked the fact
that they were taking on the whole burden for remediation.
- What, if anything, should the student have done about
these concerns?
Part V: State Government's Role in Choosing
Management Plan
Following the recommendations of the researchers and the
Citizens Advisory Group, the State Department of Environmental
Protection (DEP) decided to accept the recommendation of the
research team for a more balanced allocation of responsibility
for reducing the loads, one in which the point source would
have significant responsibility. Their main reason for
rejecting the scenario the consultant advocated was that the
100% reductions it assumed were not technically feasible. The
point source agreed to this decision with the understanding
that their discharge permit would not be subject to
re-examination before its expiration in 5 years. The Citizens
Advisory Group also grudgingly gave their support to the DEP's
decision with the understanding that they would have the option
of using one of a limited number of similar scenarios if it
later became clear that one of the other, relatively balanced
alternatives would be more effective or less costly. The EPA
approved the scenario the DEP recommended.
- Was the DEP's action proper?
- Were the interests of the public served by their
decision?
Part VI: Decision Making in the Face of
Uncertainty
One major factor in the decisions made by the citizens and
the state was the deadline established by a court order related
to the TMDL process. This meant that time pressures played a
significant role in those decisions and the technical work on
which they were based. After the EPA approved the recommended
scenario, further research regarding nitrate leaching into the
ground water called into question the plan's ability to protect
ground water quality. The head of the university research team
believed that the citizens would likely have chosen a different
scenario if they had known about the effects of leaching,
especially since the citizens seemed more concerned with ground
water than surface water since the former was a significant
source of drinking water in the community. The research team
leader also felt that the pressure to meet the court ordered
deadlines had caused the process to move forward without
complete information.
- In light of time pressures like those described here, how
should scientists and engineers go about meeting their moral
responsibilities?