Document 6bqed8b6K665dXOBkM81GE8JE

V 'M&i (ic Pollutant Standards: Paralysis or Progress? After three years of PL 62-500, the victories and defeats of the EPA in im plementing that comprehensive lav/ are well known to many. Whether one agrees or disagrees with the Act. its im plementation has caused considerable birth pRins for the agency, state and lo cal governments, and engineers. On the whole, EPA has had success, (n administering such a complex and de manding law with limited resources. But perhaps the most glaring example of the agency's Inability to carry out the intent of Congress has been its performnnee under section 307(a), the toxic effluent standards provision. Not only has EPA failed to meet'the deadlines established, it has yet to issue any standards or com ply with the stated policy of prohibiting the discharge of toxic pollutants in toxic amounts. iV th This article will briefly examine that section of the law, the performance of the agency under it, and the reasons why, three years after the Act become law, there are still no effluent standards regulating the discharge of toxic pollu tants. Timetable Overrun. Section 307(a) is probably one of t'ie shortest sections in the Act, occupying slightly less than one The consequences-- One of the chemicals that was in cluded in the initial fist of toxic pol lutants was a group of closely related compounds known as polychlorinated biphenyls, or PCB's. These chemicals are widely used in some industrial processes and are characterized by their stability, Are resistance, and electrical insulating properties. Their chemical structure is similar to DDT's end. like that pesticide, they are read ily incorporated into human tissue. Their stability also means they arc re markably persistent in the environ ment and degrade very slowly. The concern about (hem is twofold. First, they have been linked to several health effects including skin disorders in humans and failures to reproduce in some animal species. Recently, ex periments have shown that these chemicals cause a type of cancer in rats (hat may indicate that they are also capable of causing cancer in hu mans. Although the potential for in jury is disturbing, what is more sig nificant Is their ubiquitous nature; they are found, like ODT, throughout the environment. In recent studies to measure the amount of PCB's in hu mans, researchers found levels ap proaching 1 ppb in 75 percent of the persons tested. Attention on PCB's has focused lately on the fish in New York's Hud son River. These fish, taken by sport fishermen, have levels of PCB's that range from 4 to 49 ppm. with an aver age of over 15 ppm, three times the maximum concentration allowed in food by the Food and Drug Adminis tration. Control of PCB's in industrial efflu ents has been possible for some time. When the 1899 Refuse Act was reviv ed in the late 1960's the problems caused by PCB's were receiving con siderable publicity. In April 1972 John Quarles, then assistont administrator for enforcement and general counsel at EPA, staled that discharges of PCB's should be limited to the lowest possible levels to ensure that accumu- 2734 Journal WPCF HONS 084977 - IQinsfeOiP page. The controversy surrounding it is considerably great, however. Basically, the section requires EPA to publish, 00 days after enactment, a Uet of toxic wa* ter pollutants and to follow that in an other 60 days with proposed effluent limitations (iucliNling prohibitions) to control their discharge. After the pro* posal has been published, EPA has 30 days in which to hold a public hearing and aix months to publish the final standards. Sources must meet the stand ard within one year of publication of the Anal standards. Thus. PL 92-500 optimistically envi sioned that EPA would have published s list of toxic pollutants by January 16, 1073, proposed effluent standards for them by July 15, 1973, and issued the final effluent standards by January 14, 1974. All sources would then be in com pliance by )anuaiy 14. 1975. As will be seen, however, things did not work out as intended. It was not until July 6, 1973, six months after the deadline, that EPA, act ing under a court order. Anally proposed a list of nine toxic pollutants. That list included aldrin, dieldrin: benzidene and all its salts; cadmium and all cadmium compounds; cyanide and all cyanide compounds; DDD, DDE, and DDT; endrin; mercury and ail mercury com pounds; polychlorinated biphenyls The case of PCB's litlon of PCB's in Ash did not exceed the FDA maximum. When PL 02-500 became law six months later, the EPA had two new tools to control PCB's, the National 1 Pollutant Discharge Elimination Sys tem (NPDES) permits and the toxic pollutant effluent standards. The "< above article relates the difficulties encountered in establishing toxic ef fluent standards, but NPDES permits were still available to limit PCB emis slons. . However, only six permits contain ing limits on PCB'a have been issued to msnufacturers with process waste water effluents. Although more than SOO of the 700 permits issued to steam electric generating plants have a PCB standard, these plants normally dis charge no PCB's. Meanwhile, most mamifacturers of electrical products (the most extensive users of PCB's) re not limited on the Bmount of the chemicals they can discharge. Paper mills, especially those handling re cycled paper, also have significant discharges of PCB'b. Meanwhile, on the Hudson River tilings were getting worse. In earJy 1975, one striped bass was caught and found to have a PCB concentra tion in its flesh of 350 ppm. That fish was caught close to the outfall of a General Electric plant that was known to be discharging PCB's. Thai finding so alarmed the U.S. Department of Health, Education and Welfare that an official wrote to EPA requesting that the agency review the discharge permit of the plant with the aim of eliminating or reducing the discharge of PCB's. After studying the matter. EPA declined to review the permit. Shortly after the EPA decision, of ficials of the New York Department of Environmental Conservation, which has been granted authority to issue NPDES permits for that state, an nounced that it would establish a zero discharge standard for PCB's from that plant and would require the firm to meet the standard by July 1976. Further action in that case is pending. Vot. 47. No 12. December 1975 2735 MONS 084978 (PCB's); and toxaphene (chlorinated comphene). In establishing that list EPA followed six criteria that included evidence that the pollutant was toxic at extremely low concentrations in water; It is discharged In significant amounts from point sources; such point sources hove been involved in incidents severely affecting human health; there is a potential for occurrence of such incidents; the nature and seriousness of the problem are such that they cannot be addressed under other sections of the Act; end adequate data are available to establish the stand ards. It was clear from comments received by the agency that there was confusion about what could be considered a toxic pollutant within the meaning of the cri teria. The criteria were attacked as being both vague and inadequate. Responding to those charges, the agency revised its criteria. When the finsl list was publish ed on September 7, 1673, however, it was identical to the one proposed earlier. At the same time that it published the finoi list, EPA also Hated over 25 other poIIutantB that were being studied for designation as toxic pollutants. Some of the pollutants listed were asbestos, lead, arsenic, zinc, heavy metals, orgsnophoaphates, and industrial carcinogens. Despite the publication of the list of possible future toxic pollutants, environ mental groups were still unsatisfied with the limited coverage of the list and ftied suit. In December 1973, the Natural Re sources Defense Council (NRDC), En vironmental Defense Fund (EDF), and others asked the court to require EPA to amend those criteria and to include additional substances on the list. In March 1974, however, the court ruled that EPA had the discretion to limit the initial listing to those substances that met logical and relevant selection cri teria. That decision was appealed later One of the legal challenges to EPA's list of toxic pollutants cen ters on the agency's decision Ini tially to list only nine pollutants from among the many that are known to have toxic properties. that month and finally returned by the Appeals Court to the District Court for rfurther action on September 15,1975. In late December 1973, EPA proposed m effluent limitations for the nine toxic pollutants. The standards were based heavily on the revised water quality cri teria document and designed primarily, b*.s 1 l to protect the beneficial uses of water from damage caused by toxic pollutants. & K As might be expected, the standards were attacked by both Industry and en vironmentalists. Arguments against the standards cited deficient assumptions, inadequate data, lack of economic con siderations, exclusion of municipal treatment plants from coverage, end the unavailability of equipment to detect the very low concentrations proposed. Because the law required EPA to hold ; formal, trial-type, rule-making hearings ' 1 to consider the objections, the agency , > commenced the adjudicatory hearings ; in April 1874. These hearings, which lasted two months, were to play a crltical part in the delay in developing the standards because the formal procedures prohibited EPA from introducing new ' evidence after the hearings began. Thus, the agency was severely constrained in ' its ability to defend the standards. The law also requires that any revi sion to the proposed standards resulting from the hearings be made on the basis of evidence presented at the hearing*. Because EPA could not present new in- 2730 Journal WPCP MCNS 034979 formation to defend its case, the agen cy decided to withdraw Us standards and redraft them rather than have them modified on the basis of data supplied by industry. Thus, the whoie process be- . U W Angered by what they believed were unconscionable delays in establishing the standards. NRDC and EDF again went to court, this time to get the agen cy to publish the final effluent standards. That court case is still pending, as is the issuance of any toxic effluent stand ards. The agency does hope, however, to repropose the standards beginning in mid-December 3975. Counterproductive Requirements. The problems of Implementing the toxic pol lutant* section of the Act ere obvious. But whet about tha reasons behind those problems? While some of the causes are equally obvious, others are more subtle end reflect the counterproductive nature of eome of the lew's provisions. The strict time requirements placed on EPA to publish rules and regulations sre certainly not unique to section 307 (a). Such deadlines ere found through out the Act and have been a major source of problems in implementing the law, The requirement to propose a total ly different type of effluent limitations within six months of the law's enactment was sn extrema hardship on the agency, however. That strict deadline, even though it wet miiaed by many months, meant that the agency was forced to es tablish end defend such standards be fore the necessary technical dale base had been developed. The law also places a severe time con straint on the industrial dischargers of toxic pollutants. After the final stand ards era issued, industries have only one year to design, procure, and construct the needed treatment facilities. Even when dealing with more conventional pollutants, it is nearly Impossible to compress that amount of work into a 12-month period. Thus, EPA has been reluctant to issue standards that it knows cannot be met by the statutory deadline, thereby subjecting dischargers to enforcement actions through no fault of their own. The agency is sympathetic with the problem and has proposed leg islative changes to Congress, which is currently considering the matter (see the accompanying article on HR 9580). To date, however, no extension has been paseed. Although it is evident that the oneyear deadline is infeasible, there are arguments that the tight time schedule was put in the law to stimulate industry to develop innovative solutions to the problem and not to rely on conventional treatment techniques. The Congress wanted to use the Act to force the de velopment of new and improved tech nologies and to prod industries into tak ing a more inventive approach to the problem of controlling toxic discharges. Whether that strategy succeeds remains to be seen. Perhaps the most serious deficiency written into the lew is the requirement that the agency conduct formal rule making hearings after it has proposed the effluent standards. One of the goals of the Act was to develop standards quickly so that dischargers could begin meeting them as soon as possible. While that is an appropriate goal, section 307 (a) of the Act actually frustratea achievement of that goal by requiring lengthy, trial-type adjudicatory hearings. Under the rules that govern such hear ings, EPA must make its total presenta tion at the start and Is not allowed to in troduce any new information during the course of the hearings. Perhaps more important from the standpoint of public policy are tha re strictions that such hearings effectively place on the participants in the process. Formal hearings of this type place a tre- Vol. 47, No. 12. December 1075 2737 MOMS 084980 remain unresolved. Issues such is revi-1 ion of the list of toxic pollutants, the I Perhaps the biggest single im adequacy of the criteria used to select 1 pediment to the establishment of toxic effluent standards has been the lack of adequate scientific in the pollutants, and the priority of re- j search programs to establish a better ! understanding of the environmental be havior of chemicals so that future toxic j formation of the effect of these standards will rest on a firmer scientific base need to be addressed. ' pollutants at extremely low con Increasing Importance. Despite the de centrations in water* lays in developing the toxic standards,' the issue is assuming an Increasingly important and visible role in pollution mendous financial burden on those tak ing part In the proceedings. The time and expense of adjudicatory hearings can usually be borne only by large in dustries. Thus, while Congress intended to open up the rule-making process to more public participation, the formal hearings required by section 307(a) ef fectively preclude meaningful citizen in volvement in developing the standards control and environmental health pro grams. The continuing disclosure of toxic chemicals found in drinking water supplies highlights the need for effective control of such substances at their source. The S.fe Drinking Water Act, signed into law a year ago, will provide additional impetus to the agency to con trol the discharge of toxic pollutants from industrial effluent*. for toxic pollutants. Congress is more concerned then ever Clearly, such hearings are not condu cive to the open, constructive review of complicated technical standards. It is necessary for EPA to have the authority to devise hearing procedures that are better suited to the gathering and review of information, which is essential to the rule-making process, than to the caaeby-case fact finding for which the ad judicatory hearings were designed. with toxic chemicals and is currently considering legislation that would give EPA broad authority to regulate the manufacture end distribution of any chemical that posed a risk to human health or the environment. If enacted, the law will focus EPA's attention even more directly on the problems caused by toxic chemicals and the need to control their release into the environment. According to some observers, the sor Last year, EPA proposed such an riest chapter in the history of PL 02-500 amendment to enable it to conduct the has been the agency's failure to control standards-setting process more efficient tho discharge of toxic pollutants. But ly. Curiously, that amendment was re those first efforts reflected the enormity jected by the Office of Management and of the task EPA had to perform in an Budget, and EPA was never allowed to unreasonably short Ume. Legal con send the recommendation to Congress. frontations, inadequate scientific data, Even the current legislation (HR 9560) stringent timetables, and a lack of re that would, in part, extend the com sources all conspired against success. pliance deadline does not contain any Now, with the wisdom of hindsight and relief for the agency from the burden a greater realization of the need to con of formal regulatory hearings. trol toxic pollutants, EPA will, hope fully, do better the second time around. Other questions and issues surround ing the development of the standards J. T. Sliter 2738 fournsl WPCF HONS 0d49dl