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56-61 JOURNAL WATER POLLUTION CONTROL FEDERATION MO. 21,000 DEC 1975 B Toxic Pollutant Standards: Paralysis or Progress? Alter three years of PL 92*500, the victories and defeats of the EPA in im plementing that comprehensive law are well known to many. Whether one agrees or disagrees with the Act, its im plementation has caused considerable birth pains for the agency, state and lo cal governments, and engineers. On the whole, EPA has had success in administering such a complex and de manding law with limited resources. But perhaps ths most glaring example of the agency's inability to carry out tha intent of Congress has been its performance under section 907(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. This article will briefly examine that section of the law, tha 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 Overran. Section 307(a) is probably one of the shortest sections in the Act, occupying slightly less than one The consequences-- One of tha chemicals that was in cluded in the initial list of toxic pol lutants was a group of closely related compounds known as polychlorinated biphenyls, or PCB'a. Tnese chemicals are widely used in some Industrial processes and are characterized by their stability, fire resistance, and electrical insulating properties. Their chemical structure is similar to DDT's and, like that pesticide, they are read ily incorporated Into human tissue. TTwir stability also means they are re markably persistent in the environ ment and degrade vary slowly. The concern about them is twofold. First, they have been linked to several health affects including skin disorders in humans and failures to reproduce in some animal speoies. Recently, ex periments have shown that these chemicals cause a type of cancer in rats that may indicate that they are also capable of causing cancer in hu mans. Although tha potential for in jury is disturbing, what ia more sig nificant is their ubiquitous nature; they are found, like. DDT. 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 fisherman, have levels of PCB's that range from 4 to 49 ppm, with on aver age of over 15 ppm, three times (he 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. Whan the 1B99 Refuse Act was reviv ed In the late 1960's tha problems caused by PCB's were receiving con siderable publicity. In April 2972 John Quarles, then assistant administrator for enforcement and general counsel at EPA, stated that discharges of PCB's should be limited to the lowest possible levels to ensure that accumu- 2734 lourntt WPCF HONS 033229 monitor paga. Tha controversy surrounding it is considerably great, however. Basically, tha section requires EPA to publish, 90 days after enactment, a list of toxic wa ter pollutants and to follow that in an other 00 days with proposed effluent limitations (including prohibitions) to control their discharge. After the propoaal has been published. EPA has 30 days in which to hold a public hearing and six months to publish the Anal standards. Sources must meet the stand ard within one year of publication of the final standards. Thus, PL 92-500 optimistically envi sioned that EPA would have published a list of toxic pollutants by January 18, 1973, proposed effluent standards for them by July 15, 1973, and Issued the Anal effluent standards by January 14, 1974. All sources would then be in com pliance by Januaiy 14. 1975. As will be seen, however, things did not work out as intended. It was not until July 8, 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; benzidens and all its salts; cadmium and all cadmium compounds; cyanide and all cyanide compounds; ODD. DDE. and DDT; endrin; mercury and all mercury com pounds; polychlorinated biphenyls The case of PCB's latlon of PCB'i in fish did not exceed the FDA mcxlmum. When PL 92-500 became law six montha later, the EPA had two new toola to control PCB's, the National Pollutant Dlacharge Elimination Sys tem (NPDES) permits and the toxic pollutant effluent standards. Tha above article relates tha difflculttaa encountered in establishing toxic efflusnt standerds. but NPDES permits wars still available to limit PCB emis sions. However, only six permits contain ing limits on PCB's have bean iaaued to manufacturer, with process waste water effluents. Althoiuh more than 500 of the 700 permits Issued to .team electric generating plants have a PCB standard, these plants normally dis charge no PCB's. Meanwhile, moat manufacturers of electrical products (tha moat extensive users of PCB's) an not limited on tha amount of the chemicals they can discharge. Paper mills, especially those handling re cycled paper, alao have significant discharges of PCB's. Meanwhile, on the Hudson River things were getting worse. In early 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 bo discharging PCB's. That finding o alarmed the U.S. Department of Health, Education and Welfare that an official wrote to EPA requesting that tha agency review the discharge permit of the plant with tha 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 tha New York Department of Environmental Conservation, which has been granted authority to issue NPDES permits for that stats, an nounced that it would establish t zero discharge standard for PCB's from that plant and would require the firm to meet the standard by July 1975. Further action In that case is pending. Vol. 47, No. 12, Dacamb., 1S7S 2735 MONS 033230 (PCB's); and toxaphene (chlorinated cbmphene). In establishing that Uat EPA followed ix 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 have 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 sactions of tha Act; and adequate data are available to establish the stand ards. It was clear from comments received by the agency that there waa confusion about what could be considered a toxic pollutant within tha meaning of the cri teria. Tha criteria were attacked as being both vague and inadequate. Responding to those charges, the agency revised its criteria. When the Bnal list was publish ed on September 7, 1973, however, it was identical to tha one proposed earlier. At tha same time that it published tha final list, BPA also listed over 23 other pollutants that ware being studied for designation as toxic pollutants. Soma of the pollutants listed were asbestos, lead, arsenic, line, heavy metals, organophosphatas, and industrial carcinogens. Despite the publication of tha list of possible future toxic pollutants, environ mental groups were still unsatisfied with the limited coverage of the list and Had suit. In December 1973, the Natural Re sources Defense Council (NRDC), En vironmental Dafenaa Fund (EDF). and others esksd tha court to require EPA to amend thoee criteria and to Include additional substances on the list. In March 1974, however, the court ruled that EPA had tha 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'e Hit of toxic pollutants can ters on the agency's decision ini tially to list only nine pollutants from among the many that are known to have toxic propertiee. that month and Anally returned by the Appeals Court to the District Court for further action on September 13,1973. In late December 1973, EPA proposed effluent limitations for die nine toxic pollutants. The standards wers based heavily on the revised water quality cri teria document and dealgnad primarily to protect the beneAcial usee of water from damage caused by toxic pollutants. As might be expected, the stsndards were attacked by both industry and anvironmentalists. Arguments against tha standards dted deficient assumptions, inadequate data, lack of economic con siderations, exclusion of municipal treatment plants from coverage, and tha unavailability of equipment to detect the very low concentrations proposed. Because the law required EPA to hold formal, trial-type, rule-making hearings to consider the objections, the agency commenced the adjudicatory hearings In April 1974. These hearings, which lasted two months, wars to play s criti cal part in tha 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. Tha law also requires that any revi sion to the proposed standards resulting from the hearings ha made on tha basis of evidence presented at the hearings. Because EPA could not present new In- 2733 Journal WPC7 MONS 033231 monitor formation to dtfand Its csss, the agen compress that amount of work Into a cy decided to withdrew Its standards 12-month period. Thus, EPA has been and redraft them rather than have them nluctant to issue standards that It modified on the baels of data supplied knows cannot be met by the statutory by Industry. Thus, the whole process be deadline, thereby subjecting dischargers gan anew. to enforcement acUona through no fault Angered by what they believed were unconscionable delays In establishing the standards, NRDC and EDP again went to court, this time to get the agen cy to publish the final effluent standards. That court case la etill pending, as Is the Issuance of any toxic effluent stand of their own. The agency Is sympathetic with the problem and hes proposed leg islative changes to Congress, which is currently considering the matter (see the accompanying article on HR gBflO). To date, however, no extension has bean passed. ards. Hie agency does hope, however, to Although It is evident that the one- reproposa the standards beginning In year deadline Is infeasible, there are mid-December 1973. arguments that the tight time schedule was put In the law to stimulate Industry Counterproductive Requirements. The to develop innovative solutions to the {irobloma of Implementing the toxic pol- problem and not to rely on conventional utants section of the Act are obvious. treatment techniques. The Congress But what about the reasons behind those wanted to use the Act to force the de problems? While some of the causes are velopment of new and Improved tech equally obvious, others are more subtle nologies and to prod Industries Into tak and reflect the counterproductive nature ing a more Inventive approach to the of some of the law's provisions. problem of controlling toxic discharges. Whether that strategy succeeds remains The strict time requirements placed to be seen. on BPA to publish rules and regulations are certainly not unique to section 307 Perhaps the most serious deficiency (a). Such deadlines are found through written into the law Is the requirement out the Act and have been a major that the agency conduct formal rule source of problems In Implementing the making hearings after It has proposed law. The requirement to propose a total the effluent standerds. One of the goals ly different type of effluent llmltatlona of the Act was to develop standards within ate months of the law's enactment quickly so that dischargers could begin was an extreme hardship on the agency, meeting them as toon as possible. While however. That strict deadline, even that It an appropriate goal, section 307 though it was missed by many months, (a) of the Act actually frustrates meant that the agency was forced to es achievement of that goal by requiring tablish and defend such standards ba lengthy, trial-type adjudicatory hearings. ton the necessary technical data bate Under tha rules that govern such hear had been developed. The law also places a savers time con straint on the Industrial dischargers of toxic pollutants. After the final stand ings, EPA must make Its total presenta tion at tha start and Is not allowed to In troduce any new information during the course of die hearings. ards an issued, Industries have only one Perhaps more important from the year to daeign, procun, and construct standpoint of public policy are tha re the aaedad treatment facilities. Even strictions that such hearings elfactively whan dealing with mon conventional place on tha participants In the process. pollutants. It Is nearly Impossible to Formal hearings of this typs place a tra- Vol. 47, No. 12, December 1S7B 2737 HONS 033232 Perhaps the biggest single im pediment to the establishment of toxic effluent standards has been the lack of adequate scientific in formation of the effect of these pollutants at extremely low con centrations in water. mandous financial burden on thoia tak ing part in the proceedings. The time end expense of adjudicatory hearings can usually ba borne only by large in dustries. Thus, while Congress intended to open up the rule-making process to mors public participation, the formal hearings required by section 307(a) ef fectively preclude meaningful citizen in volvement in developing the standards for toxic pollutants. Clearly, such hearings era not condu cive to the open, constructive review of complicated technical standards. It is necessary for EPA to have the authority to devise hesring procedures that are better suited to the gathering and review of information, which is essential to the rule-making proceea, than to the caaaby-case fact finding tor which the ad judicatory hearings wars designed. Last year, EPA proposed such an amendment to enable It to conduct the standards-setting process mom efficient ly. Curiously, that amendment was re jected by the Office of Management end Budget, and EPA was never allowed to send the recommendation to Congress. Evan the current legislation (HR 9800) that would, in part, extend the com pliance deadline does not contain any relief for the agency from the burden of formal regulatory hearings. Other questions and Issues surround ing tha development of the standards remain unresolved. Issues such as revi sion of the list of toxic pollutants, the adequacy of the criteria used to select the pollutants, end the priority of re search programs to establish a better understanding of the environmental be havior of chemicals so that future toxic standards will rest on a firmer scientific base need to be addressed. Imneaslng Importance. Despite tha de lays in developing the toxic standards, the Issue is assuming an Increasingly important and visible role in pollution control and environmental health pro grams. Tha continuing disclosure of toxic chemicals found in drinking water supplies highlights the need for effective control of such substances at their source. Tha Safe Drinking Water Act signed into law a year ago, will provide additional Impetus to tha agency to con trol the discharge of toxic pollutants from Industrial effluents. Congress Is more concerned than ever with toxic chemicals and is currently considering legislation that would give EPA brqad authority to regulate tha manufacture and distribution of eny chemical that poead a risk to human health or tha environment. If enacted, tha law will focus EPA'a 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 riest chapter in the hietory of PL 92-500 hae been the agency's failure to control the discharge of toxic pollutants. But those first eiforta reflected the enormity of the task EPA had to perform in en unreasonably short time. Legal con frontations, inadaquate scientific data, stringent timetables, and a lack of re sources all conspired against success. Now, with the wisdom of hindsight and a greater realization of tha nasd to con trol toxic pollutants, EPA will, hope fully, do better tha second time around. J. T. Sitter 2736 Journal WPCF MONS 033233