Toxic Pollutants and the Clean Water Act:
Current Issues

Claudia Copeland
Specialist in Environmental Policy
Environment and Natural Resources Policy Division

September 21, 1993

93-849 ENR

SUMMARY

Controlling the discharge of toxic pollutants into the Nation's waters is once again an issue as Congress considers reauthorizing the Clean Water Act. This report describes the evolution of programs and policies in the Act concerning toxic pollutants, discusses current problems with implementation of some of these programs and policies, and outlines a number of issues that are on the legislative agenda.

The current toxics control strategy has evolved as part of the overall cleanup program in the Act. Prior to 1977 these efforts focused on regulating the discharge of conventional pollutants from industrial and municipal sources. Amendments in 1977, which ratified the terms of a lawsuit brought by environmental groups against the Environmental Protection Agency, set in motion a process of regulating categories of industry and a specified group of toxic chemicals discharged by those sources. Amendments in 1987 reaffirmed the approaches adopted in 1977 and fine-tuned the law by establishing deadlines for EPA and States to address toxic pollution problems.

Even with the statutory refinements, a number of problems remain because toxic discharges continue to cause widespread water quality effects and impair full use of the Nation's waters. Several topics are on Congress' legislative agenda.

• Banning the discharge of highly toxic pollutants. Some pollutants are so highly toxic in the aquatic environment that limiting discharges through application of numerical standards may not be adequate to protect human health and the environment. In such cases, Congress may choose to ban discharges altogether. At issue would be how to establish such authority and whether an alternative, non-regulatory approach might be preferable.

• Providing local governments with authority to control nonindustrial discharges of tonics. The pretreatment program is intended to control pollutants discharged by industries to sewers. Toxic pollutants, however, also enter sewers from commercial and household sources not covered by the pretreatment program. At issue is what steps might be appropriate, such as requiring treatment plants to implement source control programs.

• Expanding water quality criteria and standards. Water quality criteria consist of scientific information on concentrations of chemicals in water which do not impair aquatic life or human health. Many of EPA's criteria documents are outdated and need to be revised, and some do not include data needed to set standards for coastal waters and lakes. Further, there are many toxic pollutants for which no criteria have been developed.

• Expanding the effluent guidelines and pretreatment programs. Suggestions include requiring EPA to review and revise categorical guidelines to reflect improved technologies and expanding the number of covered industries.

TABLE OF CONTENTS

INTRODUCTION -- THE TOXIC POLLUTANT ISSUE
Complexity of the Toxics Problem

BACKGROUND
Pre-1972
The 1972 Act
The NRDC Consent Decree and the 1977 Amendments
The 1987 Amendments
-- Section 304(1) requirements
-- Section 303(c) requirements
-- Section 304(m) requirements

INDUSTRIAL PRETREATMENT
Problems with the Pretreatment Program

OTHER ASSESSMENTS
POTENTIALLY AFFECTED AND INTERESTED PARTIES

ISSUES IN THE 103rd CONGRESS

APPENDIX

TOXIC POLLUTANTS AND THE CLEAN WATER ACT: CURRENT ISSUES

Controlling the discharge of toxic pollutants into the Nation's waters is once again an issue as Congress considers reauthorizing the Clean Water Act. This report describes the evolution of programs and policies in the Act concerning toxic pollutants, discusses current problems with implementation of some of these programs and policies, and outlines a number of issues that are on the legislative agenda.

INTRODUCTION -- THE TOXIC POLLUTANT ISSUE

The focus of the Clean Water Act for the last 20 years has been on industrial and municipal point sources of pollution. For the last 15 years, toxic discharges have been a particular focus. Nevertheless, toxic contamination from industrial sources continues to cause widespread effects and impair full use of the Nation's waters.

According to the Environmental Protection Agency, more than 25 percent of rivers are impaired by trace amounts of heavy metals such as lead and mercury, organic chemicals, and pesticides, as are nearly 50 percent of lakes (including 99 percent of the shoreline miles of the Great Lakes), and 15 percent of estuaries. At issue during reauthorization of the Clean Water Act is what strategies or improvements are needed in the Act to address this continuing, persistent problem.

Industrial sources discharge large amounts of toxic chemicals directly to rivers, lakes, estuaries and other waterbodies, as well as indirectly through sewers for treatment by municipal sewage treatment plants -- an estimated two million pounds per day from direct and indirect sources.

Toxic contamination is predominantly but not exclusively a point source concern: 20 percent of the nonpoint pollution impacting lakes and 15 percent of that which affects rivers is heavy metals, pesticides, and organic chemicals.

Looking broadly, toxic water pollution is clearly a serious problem. However, thanks to 20 years' of regulatory controls on industrial facilities, pollutant discharges from point sources are proportionately less of a problem than nonpoint sources. Siltation, not discharges of heavy metals or toxic organics, is the major cause of pollution affecting all U.S. waters.

Complexity of the Toxics Problem

In the 1972 amendments to the Act (P.L. 92-500), Congress established as a policy that "the discharge of toxic pollutants in toxic amounts be prohibited" (section 101(a)(3)). In fairness, implementing that policy was more difficult than Congress or many others envisioned at the time. Tens of thousands of chemicals are currently in commerce, and thousands of these may be contained in the wastewater discharges of manufacturing and other industrial plants.

Not only are the numbers of chemicals huge (far more than the limited number of conventional pollutants that previously were the focus of clean water programs, e.g., suspended solids, biochemical oxygen demanding material, pathogens), but the effects on aquatic and human health are far more complex. They include mortality, as well as chronic and sub-lethal endpoints such as increased risk of cancer, and reproductive or neurological effects.

Some chemicals accumulate in living organisms and become more concentrated as they move up the food chain (through bioaccumulation or biomagnification), posing toxicity problems even at very low levels. Ecosystem impacts may be subtle (for example, destruction of aquatic vegetation), yet still may devastate aquatic and wildlife communities dependent on these systems.

Further, scientists are concerned not only with effects of individual chemicals but also of synergistic or antagonistic effects from combinations of discharges. Enough is known about some chemicals and their effects to raise concern, but full knowledge is often lacking.

Somewhat ironically, our ability to assess chemicals in the environment has greatly complicated the process of controlling them. Analytic methods today are capable of measuring chemicals at the part per trillion level and identifying effects from chemicals present at the part per billion level. Thus, our ability to identify potential toxic chemical problems has increased, while our realistic ability to implement controls is constrained.

BACKGROUND

Pre-1972

The current toxics control strategy has evolved as part of the overall cleanup program in the Clean Water Act. National programs to control water pollution began in 1948 (P.L. 80-845), but the Federal role at that time was limited to providing technical assistance and conducting research. Prior to 1972 the pollution control effort focused on regulating the discharge of conventional pollutants. Limitations on individual industrial dischargers were set on a case-by-case basis, determined by the total capacity of the receiving waters to assimilate wastes. Each industrial discharger was allocated a share of total permissible stream loadings, based on State water quality standards. These standards were to identify the uses States wished to make of particular waters (such as for drinking water or recreation), including water quality criteria to support these uses. No special attention was given to toxins

Conceptually, this process assumed that it is possible technically, scientifically and politically to define a level of pollution that is reasonable and, beyond that, a level that is unreasonable. Further, it assumed that it is possible to say who and what sources are causing unreasonable discharges. The effort proved to be very difficult technically. In most cases, the scientific basis for allocating control requirements among dischargers was questionable, and legal challenges were numerous as a consequence.

By 1970 this water quality-based approach was deemed a failure for several reasons. First, only half the States had federally approved water quality standards covering even a handful of pollutants. More important, science was largely unable to deliver needed information on which to base discharge limits and to measure the effect of such limits on stream quality. Finally, the time and costs of evaluating each individual waterbody and each discharger greatly slowed the pollution control process.

The 1972 Act

The 1972 amendments mandated major changes in the way pollution problems were to be addressed. Section 307 of the Act was established as the primary toxics-control mechanism to carry out the national policy of prohibiting toxic discharges. Section 307 called for the Environmental Protection Agency (EPA) to promulgate chemical-by-chemical discharge standards based on extensive evaluation of their effects on the aquatic environment. While emphasizing aquatic effects, this approach embodied an assumption that such levels of control would safeguard human health, as well. EPA was directed to establish a list of toxic substances and establish standards that could provide the basis for setting industry-by-industry and plant-by-plant discharge limitations.

In doing so, EPA was to take into consideration the toxicity of the pollutant, its persistence, its degradability, the usual or potential presence and importance of affected organisms in the water (i.e., the affected species), and the nature and extent of effects of toxic pollutants on such organisms. In setting the standards, EPA was to include an ample margin of safety. The Agency had no express authority to consider economics or technological feasibility.

Conceptually the 1972 act envisioned control of individual chemicals through the application of technology-based standards. The legislation itself established two deadlines for industry to meet progressively more stringent standards to be issued by EPA. First, by mid-1977 industry was to meet standards designed to apply the "best practicable control technology currently available," or BPT standards. Second, by mid-1983 industry was to meet a higher level of standards applying the "best available technology economically achievable," or BAT standards. The BPT and BAT requirements were the legislative embodiment of a "technology-forcing" program in the act.

In this process, examining water quality per se became secondary to putting in place the control technology that would benefit any and all bodies of water where dischargers were located. The general statutory scheme is that in any given category or subcategory of industry, dischargers were to meet technology-based performance standards, based on the capability of available treatment technology. Technology-based standards became the principal vehicle for setting pollution control levels, yet water quality standards were retained as a basis for assessing the need for even more stringent discharge controls where necessary to protect the uses of a stream, including human health.

The chemical-by-chemical approach proved nearly as unsuccessful as the water quality-based approach. Because of inadequate biological and toxicological data, scientific disputes, and limited resources, EPA was able to issue standards for only six chemicals in five years. (1)

The NRDC Consent Decree and the 1977 Amendments

Dissatisfied with EPA's progress in controlling toxic discharges, the Natural Resources Defense Council (NRDC) and other environmental groups sued the Agency. In June 1976 a court-approved settlement agreement was reached that recast the entire toxics regulatory program. Congress subsequently ratified the settlement agreement in 1977 amendments to the Clean Water Act (P.L.95-217).

Under the agreement (NRDC v. Train, 6 ELR 20588 ((D.D.C. June 9, 1976)); it became known as the Toxics Consent Decree or the Flannery Decision, for presiding U.S. District Court Judge Thomas A. Flannery), EPA was required to regulate 65 specified chemicals and classes of chemicals. The 65 were subdivided into 129 distinct substances now commonly referred to as "priority pollutants" (the list was later reduced to 126). The priority pollutants are carcinogens, suspected carcinogens, or pollutants known to be seriously toxic at low levels and are discharged by one or more major industry category. The priority pollutant list came from one produced by EPA in 1975 in an effort to develop a toxics regulatory strategy, especially after NRDC filed its lawsuit.

Technology-based control standards were to be established for each of the priority pollutants and incorporated into permits of 14,000 dischargers classified under 21 specific industrial categories (later expanded to 34 categories which are now subdivided to cover 51 industrial categories and about 70,000 facilities).

The agreement also required EPA to develop water quality criteria for each of the priority pollutants consisting of the best scientific assessment of the concentrations of specific chemicals in water which will protect aquatic life or human health. Criteria describe the quality of water which will support a particular use. When incorporated in State water quality standards, they become legally binding and enforceable elements of State standards. Finally, EPA was directed to identify toxic "hotspots," waters where designated uses and State water quality standards would not be attained, even after full implementation of technology-based controls on industry. (2)

The 1977 Clean Water Act amendments made some deadline and definitional changes to the terms of the settlement agreement, while essentially incorporating it into the law. EPA's regulatory effort was shifted from evaluating individual chemicals to evaluating whole categories and subcategories of industries. Although it, too, proved to be a bigger task than the Agency and others had anticipated (deadlines were missed, and many of the same data and resource problems arose), ultimately it enabled a degree of progress towards controlling toxic chemicals that would not have occurred otherwise. Still, whether the toxics control glass is half-full or half-empty depends on one's perspective, as one analyst has noted (3):

The success of technology-based standards in abating toxic water pollution depends largely upon one's predisposition to enjoy the donut or regret the hole. Beyond doubt, technology standards have begun to force large reductions in the discharge of more than 100 highly toxic compounds in 24 (sic) major categories of industry. Also beyond doubt, however, a greater number of individual industries remain unregulated than regulated, and a growing list of toxics have escaped scrutiny and standards.

The 1987 Amendments

The Water Quality Act of 1987 (P.L. 100-4), the most recent major amendments to the Act, reaffirmed continued use of a combination of the technology-based and water quality-based approaches to controlling toxic discharges to surface waters. Retaining these concepts, the 1987 amendments fine-tuned the law by establishing deadlines for EPA and States to address toxic pollution from point and nonpoint sources.

Section 304(l) requirements

New Section 304(1) directed States to develop lists of their impaired waters by Feb. 4, 1989 (two years after enactment). These are waters that do not meet or are not expected to meet water quality standards, even after implementation of technology-based controls, because of excessive levels of conventional and/or toxic pollutants discharged by point and nonpoint sources. The listing, a one-time-only requirement, was built on the toxic hotspot listing mandated by the 1976 Toxic Consent Decree.

Section 304(1) required States simultaneously to identify point sources causing the pollution problems and water quality impairments and develop individual control strategies to control those sources further. Essentially, States were to revise existing permits for those facilities to impose additional control requirements where necessary.

In response, EPA and States developed three lists of impaired waters. The first (the "long list") was the most comprehensive and included waters impaired by point and nonpoint sources, toxic and/or conventional pollutants. This list included 18,770 waters nationwide. The second (the "medium list") was a subset of the long list and included waters impaired by point and/or nonpoint discharges of any of the 126 priority pollutants. EPA did not compile or enumerate the number of waters on this list. The third (the "short list") included waters whose impairment was due entirely or substantially to point source discharges of any of the 126 priority pollutants. This list of toxic hotspots included 529 impaired waters and 686 industrial point source facilities, plus 240 sewage treatment plants and a dozen Federal facilities.

The General Accounting Office (GAO) evaluated States' and EPA's efforts to implement the listing requirement (Stronger Efforts Needed by EPA to Control Toxic Water Pollution, GAO/RCED-91-154) and concluded that only a small percentage of impaired waters were targeted for more stringent controls or cleanup. Among the reasons cited by GAO:

• EPA and States focused primarily on waters impaired by any of the 126 priority pollutants discharged from point sources and effectively ignored toxicity problems caused by non-priority pollutants (such as chlorine).
• EPA and States were unable to identify all impaired waters because most States have assessed the quality of less than half of their surface waters.
• EPA required that individual control strategies be developed only for those waters on the short list, with the result that control strategies were not developed for impairments related to nonpoint sources or point source discharges of non-priority pollutants. GAO also found that in many cases the control strategies for these 686 facilities do not include more stringent discharge limits, but only added a three-year compliance deadline.

In March 1989 the Natural Resources Defense Council filed a petition in the U.S. Court of Appeals arguing that EPA's implementation of these provisions was incomplete, that the impaired waters lists must identify all discharging facilities, and that individual control strategies should apply to all three lists of waters. In September 1990 the court ordered EPA to rewrite its regulation to require States to identify all facilities discharging toxic pollutants and to reconsider its interpretation that control strategies be limited to point sources. Finally, in July 1992 EPA modified its regulations to require States to identify non-priority pollutants and facilities discharging them, but did not require that new control strategies be developed.

Section 303(c) requirements

New Section 303(c) directed States to adopt by Feb. 4, 1990, numeric criteria for all priority pollutants as part of their water quality standards. Prior to this amendment, the Act did not explicitly require States to adopt water quality standards for which EPA had previously issued water quality criteria. State water quality standards had taken many different forms, with some States adopting standards based on all of EPA's criteria guidance and even adopting numerical standards for more pollutants, while in many cases States had only adopted narrative standards containing general limits, such as avoidance of toxic pollutant concentrations that would pose unreasonable harm to aquatic life. In the absence of numerical criteria incorporated in a State's enforceable standards, it becomes very difficult to establish causal links between discharges and water quality impacts and to impose needed pollution controls.

Section 303(c) directed that if States failed to adopt the criteria for priority pollutants, the Federal Government would do so. By the February 1990 deadline, only seven States had adopted specific water quality standards for the priority toxic pollutants. In November 1991 EPA announced that it would set Federal water quality standards for as many as 105 toxic pollutants in 22 States and territories. One year later EPA issued a final rule setting Federal toxic water quality standards for 14 States and territories that had not yet adopted their own criteria (in the intervening months, the other jurisdictions adopted standards and avoided Federal promulgation).

The rule, which established as few as one to as many as 98 toxic criteria, applies to the following States and territories: Alaska, Arkansas, California, District of Columbia, Florida, Idaho, Kansas, Michigan, New Jersey, Nevada, Puerto Rico, Rhode Island, Vermont, and Washington.

Section 304(m) requirements

A longstanding concern of States, among others, is that many of EPA's technology-based standards for regulated industry categories (frequently referred to as effluent guidelines) have not been revised since first issued. Some are more than 15 years old and do not reflect newer control technologies, among other factors. Moreover, EPA has not issued standards or effluent guidelines for additional categories or subcategories, even though some have been identified as key sources of toxic pollutant discharges (waste treatment facilities and industrial laundries, for example). The Agency contends that resources for guideline development have been greatly reduced since 1981 and that it is this fact, not reluctance or unwillingness, that has hindered its ability to address new or revised industry standards.

Section 304(m) directed EPA to publish every two years a schedule for the annual review and revision of existing effluent guidelines. EPA also was required to identify categories of industries for which guidelines have not been published and establish a schedule for promulgating standards for these industries.

Environmentalists argue that EPA's response has been inadequate and that the list issued in 1990 consists mainly of industries targeted for several years. EPA acknowledges that the list is shorter than some would like, but says that the list is reasonable, considering environmental risk and industry size (i.e., utility of imposing national standards).

INDUSTRIAL PRETREATMENT

Industries which discharge wastes to city sewers, rather than treating those wastes on-site, are termed indirect dischargers; they are required to first pretreat or remove toxics that would interfere with operation of the city's wastewater treatment plant. For indirect dischargers, pretreatment is the analogue to effluent standards imposed on industries that treat and discharge directly into rivers, stream, and lakes. Indirect dischargers are not required to obtain individual facility discharge permits, however.

As implemented by EPA, the program has two parts: general pretreatment rules establishing administrative mechanisms and rules imposing effluent limitations on categories of indirect dischargers, the same industrial categories for which direct discharger regulations have been issued. Like the other toxics provisions of the law, the pretreatment provisions were strengthened by the 1977 amendments to the Act. In particular, the 1977 amendments mandated that national pretreatment standards be developed requiring use of best available technology for indirect dischargers -- equivalent to the technological requirements for direct discharges. These requirements provided a measure of equity between direct and indirect industrial sources to prevent the transfer of toxic industrial pollutants from one industrial waste stream into municipal waste streams.

There are an estimated 160,000 industrial facilities that discharge wastes to municipal treatment plants; they discharge 3.2 billion gallons per day of wastewater. According to EPA, one-half of the volume of taxies discharged to sewers are priority pollutants, but the remaining half are non-priority hazardous wastes that are not subject to categorical standards. The most prominent are methanol, xylene, formaldehyde, and acetone.

Municipal treatment plants with design flows of more than 5 million gallons per day are required by EPA to establish pretreatment programs. Smaller plants also must do so if the industrial wastes that they receive have potential to upset the plant's operation, contaminate its sludge, or result in permit violations. Approximately 10 percent of the Nation's 15,000 municipal plants were required to establish local pretreatment programs. After approval by EPA, they are authorized to enforce categorical pretreatment standards. Individual treatment plants also are permitted to set local discharge limits, if necessary for the plant to comply with sludge management regulations or meet water quality standards.

According to EPA, these programs have reduced toxic loadings to publicly owned treatment plants by 75 percent. However, industrial facilities that discharge to municipal sewers transfer much larger volumes of toxic wastewaters to treatment plants (448 million pounds in 1990, according to EPA's Toxic Release Inventory) than are discharged by direct discharger facilities (197 million pounds in 1990). While municipal treatment plants may incidentally treat some taxies introduced into sewer systems, they are primarily designed to treat conventional wastes, not pollutants of the complexity discharged by industrial sources. Categories most responsible for indirect discharges, according to EPA, include electroplating/metal finishing, industrial and commercial laundries, organic chemical manufacturing, petroleum products refining and manufacturing, and pulp and paper mills.

Problems with the Pretreatment Program

Questions have been raised about the adequacy of the current pretreatment program. The GAO reported that many cities fail to bring strong enforcement actions against industries that violate pretreatment requirements (Improved Monitoring and Enforcement Needed for Toxic Pollutants Entering Sewers, GAO/RCED-89-101). As a consequence, GAO found that industrial users were in considerable noncompliance with applicable discharge limits.

Other critics cite a range of problems with pretreatment.

• As with the program to regulate direct dischargers, too few industry categories are regulated by EPA standards. Weak or no control results from the lack of Federal rules. Moreover, where categorical standards are less stringent than effluent guidelines for direct dischargers, industry has an incentive to allow the municipality to treat its waste.
• EPA has not regulated some industry categories with known significant impacts as indirect dischargers because they are smaller or "lighter" industries that tend not to be direct dischargers, as well. Machinery manufacturing and rebuilding is one example. From EPA's perspective, the utility of promulgating standards is less than for larger industries, although the environmental benefits might be great.
• Discharge permits issued to municipal treatment plants generally do not contain specific limits for toxics. If this were the case, municipal officials would have greater incentive to control toxic discharges from industrial users.
• EPA lacks authority to issue permits directly to industrial users of municipal treatment plants, which is a problem with respect to industries located in cities without approved local programs.
• The Resource Conservation and Recovery Act (RCRA) provides an exclusion for hazardous wastes that are mixed with domestic sewage, under which such combined wastes are not subject to RCRA management requirements if discharged to a municipal treatment plant. This Domestic Sewage Exclusion (DSE) places the treatment burden wholly on the municipality, yet hazardous waste treatment facilities are not covered by CWA categorical pretreatment standards. Hence, the pretreatment program fails to adequately safeguard municipal plants which receive wastes under the DSE.

OTHER ASSESSMENTS

Beyond specific concerns and details of programs such as pretreatment, a number of general concerns or assessments about the Act's toxics program are apparent.

• The priority pollutant list is not complete or perfect. Experience has shown that some pollutants on the list are not discharged by industries or through treatment plants, while other chemicals that ought to be regulated are not because they are not priority pollutants (e.g., dichloroethylene, methylene bromide, tetrachlorobenzene). The list in the 1976 Toxics Consent Decree was only intended as a starting point, yet has never been modified except for the deletion of three chemicals.
• Similarly, EPA and others recognize that the list of regulated industry categories is incomplete, and technology-based standards for many industries are outdated. EPA's response to provisions of the 1987 amendments should improve this problem, but is partly dependent on adequate resources.
• Implementation of the listing and individual control strategy provisions of the 1987 amendments appeared to be significantly hampered by two factors: EPA's restricted interpretation of section 304(1) and the fact that most States did not have water quality standards for toxics in place before they conducted the required assessments.
• Information needs to implement the toxics program fully have been and continue to be enormous. These requirements include scientific criteria on the effects of individual chemicals on water quality but also on an expanded and new set of criteria, such as those for judging the biological health of sediments (where toxics come to rest) and larger ecosystems such as wetlands. Further, better and less costly tools are needed to test wastestreams and ambient waters for harmful levels of contaminants.
• Nonpoint source contributions of toxics and heavy metals are largely uncontrolled.

POTENTIALLY AFFECTED AND INTERESTED PARTIES

Some of the concerns and views of groups and interested parties on these issues can be described generally.

• The regulated industrial community argues that EPA and States should hold the line and not impose yet another round of pollution controls on industry, especially since nonpoint source pollution is the larger share of remaining water quality problems. Most would probably acknowledge that the pretreatment program is inadequate, but many sources prefer to negotiate with local governments on site-specific requirements.
• Many local government officials who operate municipal treatment plants, administer pretreatment programs, and manage sludge residuals would welcome EPA updating and establishing additional categorical pretreatment standards. Few local governments have the experience or resources to implement comprehensive local programs in lieu of Federal standards.

• States are eager for EPA to update and expand the effluent guidelines for direct industrial dischargers. More and better effluent guidelines will give States the regulatory tools they need when imposing controls and limitations in individual facility discharge permits. Likewise, States want to see EPA updating and issuing new water quality criteria, since criteria are fundamental elements of State water quality standards.

• Environmentalists support and encourage better effluent guidelines and industrial pretreatment programs under existing or enhanced provisions of the Act. They are interested in continuing to prod EPA's development of scientific criteria and assessment tools. New initiatives supported by many in the environmental community include (1) expansion of Right-to-Know provisions of law which provide citizens with increased information about environmental release of chemicals, and (2) statutory authority to "sunset" individual problem toxic chemicals through product bans or similar steps.

ISSUES IN THE 103rd CONGRESS

A number of toxic pollutant issues are being addressed during reauthorization of the Clean Water Act by the 103rd Congress. Proposals on several issues are included in S. 1114, the first comprehensive water quality bill in this Congress. Title II of S. 1114, in particular, would revise key portions of the Act that regulate industrial toxic pollutant discharges to the Nation's waters; a summary of Title II is provided in the Appendix to this report. (For more information, see Clean Water Act Legislation: Summary of S. 1114, CRS Report 93-626 ENR, June 29, 1993.) Topics on the legislative agenda include the following:

• Banning the discharge of highly toxic pollutants. Some pollutants are so highly toxic in the aquatic environment that limiting discharges through application of numerical standards may not be adequate to protect human health and the environment. Examples include mercury, dichlorobenzene, PCBs, and hexachlorobenzene. In such cases, Congress may choose to ban discharges altogether. Section 307(a) of current law provides EPA with the authority to prohibit the discharge of a pollutant, taking into account its persistence, toxicity, etc. EPA has used this authority in six cases, and some observers believe that the Act should provide EPA with clearer guidance on when or how to exercise its discretion to ban the discharge of a particular pollutant. At issue is how to establish such authority (for example, should there be a specific scientific trigger for a ban, and how should costs be considered?) and whether an alternative approach might be preferable (for example, an effluent tax on the most toxic pollutants might provide economic incentive to reduce discharges).

• Providing local governments with authority to control nonindustrial discharges of tonics. The pretreatment program is intended to control pollutants discharged by industries to sewers. Toxic pollutants, however, also enter sewer systems from commercial and household sources not covered by the pretreatment program. A recent GAO report found these sources to be significant and concluded that, as industrial discharges decrease, contributions from household and commercial pollutants will ultimately account for almost two-thirds of the toxic metals discharged to treatment plants (Nonindustrial Wastewater Pollution Can Be Better Managed, GAO/RCED-92-40, December 1991). Some States and localities have established programs to better manage pollutants in nonindustrial wastewater, including outright bans on the use of certain chemicals (detergent phosphates, for example). At issue is what further steps might be appropriate, such as obtaining better information on the extent and seriousness of nonindustrial pollutant discharges, requiring treatment plants to implement source control programs, exercising authority under the Toxic Substances Control Act to restrict or ban substances, or limiting the Federal role to providing information and guidance to States, cities, and the public.

• Upgrading pretreatment programs. Proposals include requiring EPA to review and revise existing categorical standards, since many were issued before 1980, and to develop standards for a number of industries not currently covered. The enforcement element of pretreatment programs is generally a State and local responsibility, but some have proposed explicitly giving localities more authority to control local industrial dischargers, perhaps by a mechanism similar to permits.

• Expanding water quality criteria and standards. Water quality criteria consist of scientific information on concentrations of chemicals in water which do not impair aquatic life or human health. Criteria are used by States as a basis for developing enforceable water quality standards. Many of EPA's criteria documents are outdated and need to be revised, and in addition some do not include data needed to set standards for coastal waters and lakes. Finally, there are many toxic pollutants for which no criteria have been developed. Current proposals include steps to specify a criteria development plan and to require EPA to develop criteria for contaminants in sediment, since existing criteria and standards only protect for the harmful effects of pollutants in the water column.

• Expanding the effluent guidelines program. Several suggestions have been made to improve the current program, including 1) requiring EPA to review and revise categorical guidelines, some of which were issued in the mid-1970s, to reflect improved technologies; 2) improving coverage of industry to ensure that regulations cover all existing and new sources of direct and indirect discharge for industry categories; and 3) expanding the number of covered industries, going beyond provisions enacted in 1987 to list specific additional categories for which guidelines should be issued.

Many of these proposals reflect small steps beyond provisions of current law -- updating, refining, expanding -- and some will argue that EPA, States and localities already have the authority to take many of the actions described here. Likewise, industry arguably has opportunities to adopt pollution prevention practices to reduce toxic discharges without the push of regulation. Even so, others believe that without explicit directives, without specification of required steps and deadlines, further progress in controlling toxic discharges will be limited. Thus, much of the debate during reauthorization is likely to focus on the strategic issue of how Congress should guide this process through statutory changes.

APPENDIX

SUMMARY OF TITLE II, S. 1114 (4)

Title II of S. 1114 revises key portions of the Act that regulate industrial toxic pollutant discharges to the Nation's waters. Industries will be required to utilize the best available technology to control toxics before wastes are discharged to lakes and streams or indirectly through municipal sewer systems. New requirements for pollution prevention are added to the Act to ensure that highly toxic or bioaccumulative pollutants are eliminated from industrial wastestreams. The basic clean water building blocks, criteria and standards, are strengthened through expanded issuance of scientific criteria for water and sediment quality, full adoption of enforceable standards consistent with criteria, and requirements to protect outstanding and high quality waters from degradation or deterioration.

Section 201 revises the Act's requirements concerning technology-based controls applicable to industrial point sources. In particular, it makes more consistent the types of requirements imposed on industrial sources that discharge directly to a receiving water and those that discharge indirectly through municipal sewers. Effluent guidelines promulgated by EPA are to reflect application of the best available control technology and require source reduction measures, to the maximum extent practicable.

EPA is to review existing effluent guidelines and revise them, based on advances in pollution control technology or source reduction practices. EPA also is to publish a plan for promulgating guidelines for additional industry categories every five years. These provisions address criticisms by States, among others, that discharge permits could be tightened if EPA's guidelines and standards were more current.

EPA is directed to assess fees on sources in an industry for which the standards are being issued (direct and indirect dischargers) in order to offset the full cost of developing and publishing guidelines and standards.

Section 202 strengthens the water quality criteria and standards provisions of the law. (Water quality criteria consist of scientific information on concentrations of chemicals in water which do not impair aquatic life or human health. Criteria are used by States as a basis for developing enforceable water quality standards.) Under the bill, water quality criteria issued by EPA are to consider effects on sediment, as well as fish, shellfish, wildlife, public health, and other factors already covered. Numerical pollutant criteria for toxic pollutants are to be provided. In general, it directs EPA to publish within 3 years criteria for pollutants from nonpoint sources and to prepare a 5-year plan for publishing additional water quality criteria that would result in the greatest benefit to human health and aquatic systems. The initial plan is to include sediment criteria for not fewer than eight pollutants including PCBs and dioxins. Criteria are required for registered pesticides and for chemicals subject to premanufacture notices under the Toxic Substances Control Act.

The bill directs States to adopt a methodology for translating narrative water quality standards into specific numeric limits for pollutants. This new requirement addresses the fact that many State water quality standards (especially for toxic pollutants) contain only narrative statements limiting or prohibiting pollutants, making it difficult to impose pollutant-specific limits in a source's discharge permit. States are to adopt pollutant specific standards for any new criteria issued by EPA. These provisions are intended to force a more formal process for incorporating newly-issued water quality criteria into State standards which become the basis for source-specific permit limits.

Building on elements of EPA regulations, the bill requires States to implement an antidegradation policy. The policy is to ensure protection of existing instream uses and maintenance and protection of water and sediment quality that exceeds levels necessary to protect balanced, indigenous fish and wildlife populations. Outstanding national resource waters are defined and are to be protected.

Section 203 incorporates pollution prevention elements into the Clean Water Act by authorizing EPA to regulate industrial sources so as to prohibit the discharge of pollutants which are "highly toxic" or "toxic and highly bioaccumulative" and which occur in surface waters primarily from discharges.

Section 204 strengthens programs to control industrial pollutants that are discharged to sewers for treatment by publicly owned treatment works (POTWs). Under current law these sources are required to pretreat wastes that would interfere with operation of the POTW or sludge produced by it. Under the bill, permit officials may impose pretreatment requirements on industrial users of a POTW, even if the source is not otherwise subject to a pretreatment program (for example, if discharge volumes are less than the threshold of EPA's standards).

Section 204 prohibits industrial pollutants from being introduced into sewer systems unless in compliance with a categorical pretreatment standard issued by EPA or due within seven years of enactment. Alternatively, discharges could be made if they are subject to locally set discharge limits that are equivalent to "best demonstrated treatment technology," as determined by EPA. This provision replaces the Domestic Sewage Exclusion in the Resource Conservation and Recovery Act, which currently excludes hazardous wastes that are mixed with domestic sewer from RCRA's management requirements, if the combined wastes are discharged to a POTW.

Section 205 establishes a pollution prevention planning process for industrial wastes. EPA is directed to identify pollutants which, if discharges were reduced, would benefit human health or the environment, and to require plans intended to reduce the use and byproduct generation of pollutants, and increase process recycling. Plans will be implemented through requirements in discharge permits or local limits on significant industrial users of POTWs.

Endnotes

1. The six chemicals were: aldrin/dieldrin, endrin, DDT, toxaphene, benzidene, and polychlorinated biphenyls (PCBs).

2. Prodded by the court, EPA reluctantly produced a toxic hotspot list in 1981 consisting of stretches of 34 streams and rivers.

3. Houck, Oliver A. "The Regulation of Toxic Pollutants Under the Clean Water Act." Environmental Law Reporter, Sept. 1991. p. 10537.

4. Source: Clean Water Act Legislation: Summary of S. 1114, Claudia Copeland, Environment and Natural Resources Policy Division, Congressional Research Service, June 29, 1993. Report 93-626 ENR. 10 p.