The Virginia State Water Control Board decided to increase the amount of nitrogen and phosphorous Merck and Company will be allowed to discharge into the Shenandoah River.

Merck will be allowed to discharge roughly an additional 30,000 pounds of nitrogen and 3,200 pounds of phosphorous from the Elkton plant.

The Chesapeake Bay Foundation and the Virginia Waterman's Association filed a challenge in Richmond Circuit Court Monday saying they think the board jumped the gun.

By January 1, 2011, Merck will have a permit to increase its pollution discharge into the South Fork of the Shenandoah River.

However, Manager of the Office of Water Quality Programs for the Department of Environmental Quality Alan Pollock says they're not planning on increasing the overall amount of nitrogen and phosphorus discharge.

"The action by the board gave them the higher allocation, but the condition was if they discharge over the old, lower allocation, they had to secure credits to offset anything they discharged over their old, lower allocation," says Pollock.

These credits would come from the unused discharge amount from other companies at the end of the year. However, DEQ hopes to avoid these credits by lowering discharge allocations where some companies may have ones they don't use at this time.

"The regulatory action is taken to reduce the unused allocation, which offsets the increase in allocation Merck received," says Pollock.

Ann Jennings, the Virginia Executive Director of the Chesapeake Bay Foundation, says they're worried about the increased discharge without the lower allocations being secured beforehand.

"But our concern is that we ensure that that happens, and we are pushing for Merck to have found those offsets prior to going to the board and prior to seeking additional pollution loads," says Jennings.

Jennings says the Chesapeake Bay Foundation is okay with this increase if the offsets can be found and implemented.

However, she says she's afraid this will set a bad precedent and other companies may ask for an increase in the future.

DEQ officials say Merck will have new technology to reduce its nutrient discharge by January 2011.