Document mBxxyZZL5w9pgpRm5vjoNbL7g

> lme^ [ic Pollutant Standards: Paralysis or Progress? Rr After three years of PL 92-500, the victories and defeats of the EPA in im failed to meet 'the deadlines established, it has yet,to issue any standards or com c Pt) plementing that comprehensive law are ply with the stated policy of prohibiting well known to many. Whether one agrees or disagrees with the Act, its im the discharge of toxic pollutants in toxic amounts. tele plementation has caused considerable birth pains for the agency, state and lo This article will briefly examine that * cal governments, and engineers. section of the law, the performance of On the whole, EPA has had success, in 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 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. %'S p; rtfe- of Congress has been its performance Timetable Overrun. Section 307(a) is under section 307(a), the toxic effluent probably one of the shortest sections in standards provision. Not only has EPA the Act, occupying slightly less than one B'.-fe v The consequences-- : One of the chemicals that was in- they are found, like,DDT, throughout eluded in the initial list of toxic pol the environment. In recent studies to lutants was a group of closely related measure the amount of PCB's in hu compounds known as polychlorinated mans, researchers found levels ap biphenyls, or PCB's. These chemicals proaching 1 ppb in 75 percent of the are widely used in some industrial persons tested. processes and are characterized by their stability, fire resistance, and Attention on PCB's has focused electrical insulating properties. Their lately on the fish in New York's Hud l' ! chemical structure is similar to DDT's son River. These fish, taken by sport :V J and, like that pesticide, they are read- fishermen, have levels of PCB's that i ily incorporated into human tissue, range from 4 to 49 ppm, with an aver i , Their stability also means they are re- age of over 15 ppm, three times the markably persistent in the environ maximum concentration allowed in m; ment and degrade very slowly. food by the Food and Drug Adminis tration. The concern about them is twofold. First, they have been linked to several Control of PCB's in industrial efflu health effects including skin disorders ents has been possible for some time. in humans and failures to reproduce When the 1899 Refuse Act was reviv in some animal species. Recently, ex ed in the late 1960's the problems periments have shown that these caused by PCB's were receiving con chemicals cause a type of cancer in siderable publicity. In April 1972 John rats that may indicate that they are Quarles, then assistant administrator ts also capable of causing cancer in hu for enforcement and general counsel mans. Although the potential for in at EPA, stated that discharges of jury is disturbing, what is more sig PCB's should be limited to the lowest nificant is their ubiquitous nature; possible levels to ensure that accumu- 2734 Journal WPCF Ik qSW 378590 STLCOPCB4099843 iage. The controversy surrounding it is :onsiderably great, however. Basically, the section requires EPA to publish, 90 days after enactment, a list of toxic wa ter pollutants and to follow that in an other 60 days with proposed effluent limitations (including prohibitions) to control their discharge. After the pro posal has been published, EPA has 30 days in which to hold a public hearing and six months to publish the final 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 16, 1973, 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 January 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, finally 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 all mercury com pounds; polychlorinated biphenyls The case of PCB's lation of PCB's in fish did not exceed the FDA maximum. . When PL 92-500 became law six . months later, the EPA had two new tools to control PCB's, the National < Pollutant Discharge Elimination Sys. tem (NPDES) permits and the toxic / pollutant effluent standards. The ** above article relates the difficulties encountered in establishing toxic ef- i fluent standards, but NPDES permits ? were still available to limit PCB emis: ;f: sions. /, However, only six permits contain : ing limits on PCB's have been issued to manufacturers with process waste- V. water effluents. Although more than , 500 of the 700 permits issued to steam (electric generating plants have a PCB standard, these plants normally dis charge no PCB's. Meanwhile, most manufacturers of electrical products (the most extensive users of PCB's) - are not limited on the amount of the chemicals they can discharge. Paper mills, especially those handling re cycled paper, also 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 be discharging PCB's. That 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. Vol. 47, No. 12, December 1975 2735 (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 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 sections of the Act; and 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 final list was publish ed on September 7, 1973, however, it was identical to the one proposed earlier. At the same time that it published the final list, EPA also listed over 25 other pollutants that were being studied for designation as toxic pollutants. Some of the pollutants listed were asbestos, lead, arsenic, zinc, heavy metals, organophosphates, 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 filed 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 --iteioriF 44 - cy One of the legal challenges tov^anf EPA's list of toxic pollutants cen-flfi ters on the agency's decision ini- lyl. gai tially to list only nine pollutants , from among the many that arep^un known to have toxic properties. : ^ that month and finally returned by the Appeals Court to the District Court for further action on September 15,1975. ai ri In late December 1973, EPA proposed effluent limitations for the nine toxic pollutants. The standards were based "' " heavily on the revised water quality cri- teria document and designed primarily to protect the beneficial uses of water from damage caused by toxic pollutants. 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, and the 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, were to play a criti cal 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 hearings. Because EPA could not present new in- 2736 Journal WPCF --. DSW 378592 STLCOPCB4099845 formation to defend its case, the agen cy decided to withdraw its standards - and redraft them rather than have them V modified on the "basis of data supplied . by industry. Thus, the whole process be gan anew.^ 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 1975. : Counterproductive Requirements. The problems of implementing the toxic pol lutants section of the Act are obvious. But what about the reasons behind those ; problems? While some of the causes are equally obvious, others are more subtle and reflect the counterproductive nature of some of the law's provisions. The strict time requirements placed on EPA to publish rules and regulations are certainly not unique to section 307 (a). Such deadlines are 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 an extreme hardship on the agency, however. That strict deadline, even though it was missed by many months, meant that the agency was forced to es tablish and defend such standards be fore the necessary technical data 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 are 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 9560). To date, however, no extension has been passed. 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 law 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 frustrates 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 the 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 1975 2737 DSW 378593 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. . 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 for toxic pollutants. 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 caseby-case fact finding for which the ad judicatory hearings were designed. Last year, EPA proposed such an amendment to enable it to conduct the standards-setting process more efficient ly. Curiously, that amendment was re jected by the Office of Management and Budget, and EPA was never allowed to send the recommendation to Congress. Even the current legislation (HR 9560) 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 the development of the standards remain unresolved. Issues such as revi- lp: sion of the list of toxic pollutants, the adequacy of the criteria used to select the pollutants, and the priority of re search programs to establish a better rar understanding of the environmental be-r|j|-:havior of chemicals so that future toxic standards will rest on a firmer scientific;Jg base need to be addressed. ;- : ' Increasing Importance. Despite the 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. The continuing disclosure of toxic chemicals found in drinking water supplies highlights the need for effective | control of such substances at their ` source. The Siie 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 effluents. Congress is more concerned than ever fc with toxic chemicals and is currently considering legislation that would give EPA broad authority to regulate the manufacture and distribution of any ' chemical that posed a risk to human ihealth 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 riest chapter in the history of PL 92-500 has been the agency's failure to control the discharge of toxic pollutants. But those first efforts reflected the enormity of the task EPA had to perform in an unreasonably short time. Legal con frontations, inadequate 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 the need to con trol toxic pollutants, EPA will, hope fully, do better the second time around. J. T. Sliter 2738 Journal WPCF DSW 378594 STLCOPCB4099847