CHAPTER 3 THE TOXICS PROGRAM UNDER THE NEW CLEAN WATER ACT

• Jurisdiction: United States

Environmental Law: An Update for the Busy Natural Resources Practitioner
(May 1990)
CHAPTER 3
THE TOXICS PROGRAM UNDER THE NEW CLEAN WATER ACT
Tad S. Foster
Attorney at Law
Colorado Springs, Colorado

"If we are but sure the end is right, we are too apt to gallop over all bounds to compass it; not considering the lawful ends may be very unlawfully attained."

William Penn

With hundreds (or is it thousands?) of different chemicals being discharged to the nation's waters, Congress has been pushing for broader toxic pollutants control for at least 10 years. Its 1987 Amendments, combined with EPA's own push for toxics control, likely will result in NPDES permits that list more toxic pollutants at more restrictive concentrations, while using biological tests of bugs and fathead minnows as the lowest common denominator of control. Zero discharge of pollutants is the goal of the Federal Clean Water Act.¹ A tiny bug by the name of "Ceriodaphnia" may play a starring role in achieving that goal or realistically defining a discharge that is finally clean enough. Will sweet Ceriodaphnia make the traditional water quality standards for zinc, lead, copper, etc., irrelevant? Or will §303(c)(2)(B) of the 1987 Amendments to the Federal Clean Water Act² requiring new specific water quality standards for toxic pollutants result in an expanded number of new and more restrictive standards? For those industries and municipalities listed as toxic pollutant dischargers on toxic "hot spot" stream segments under §304(1) of the 1987 amendments is biomonitoring with Ceriodaphnia or Fathead Minnow the ultimate control, or will EPA issue NPDES permits for toxic pollutants the states have not controlled?

These and other questions will be addressed in this paper. To lay a proper foundation for both the attorney familiar with the Clean Water Act as well as those who are not, it is necessary to outline the essential structure of the Federal Water Pollution Control Act of 1972; then, in greater detail, the essential elements of a water quality standards program will be described. With this as a background, the 1987 Amendments concerning specific toxic pollutant standards, biomonitoring, and listing of hot spot stream segments will be discussed.

[Page 3-2]

FROM FEDERAL WATER POLLUTION CONTROL ACT OF 1948 TO CLEAN WATER ACT OF 1987: AN EVOLUTION IN CONTROL OF TOXICS.

Clean water legislation from 1948 to 1987 has evolved, like Darwin's beetles, to fit the political landscape: clean water quality control has evolved from a state responsibility to a federally mandated program with states becoming puppets to EPA's unaccountable civil servants; from a stream quality focused program to a technology control program and then back to a water quality standards control program; from a protect-the-stream uses purpose to an unannounced focus on attainment of the goal of the zero discharge of pollutants; from measurement of pollutants in grams per liter to the capacity to measure pollutants in a range between parts per million and parts per quadrillion; and from a focus on conventional pollutants to an outright push for toxic pollutant elimination. Some of this evolution is seen in the changes since 1972.

While the Federal Water Pollution Control Act of 1972 had its predecessors,³ this legislation has been significant for creating the basic framework in place today. That framework⁴ includes two laudable goals⁵ and a federal means to those goals which focuses on a federally-issued permit called a national pollution discharge elimination system permit (NPDES).⁶ Any

[Page 3-3]

point source discharging any pollutant to the waters of the United States (i.e., anywhere) must have a permit.⁷ The permit is for only five-year terms, subject to renewal. Initially, NPDES permits contained effluent limits on the quantity of the discharge of specific pollutants allowable utilizing best practical control technology.⁸ Then, in renewed permits, more restrictive effluent limits were imposed to reflect the best available control technology economically achievable (BAT).⁹ Since 1977, the permit is to contain any more restrictive water quality standards-based effluent limits necessary to protect the uses of the stream. However, in 1972, water quality standards were not expected to play a major role. Rather, it was Congress' expectation that EPA would develop technological limitations to define the best available control technology economically achievable (BAT) at such a severe level of control that the goal of zero discharge of pollutants would be largely achieved.¹⁰ Prior to the 1972 Water Pollution Control Act, water quality standards were the primary means for protecting water quality. However, by 1972, Congress' view was that water quality standards had not been successful and that a push on technology, without a linkage to the benefits of such treatment to the water, would achieve the maximum reduction in pollutants. Overall, there was little discussion in the legislative history of the 1972 Amendments about water quality standards.¹¹ The emphasis was on EPA's defining technological limitations on pollutant discharges. For toxic pollutants, by §307(a)(2),¹² EPA was to establish at least BAT level of control, and could establish additional technological limitations (called effluent standards) without consideration of costs and could include an outright prohibition.

[Page 3-4]

EPA's inability to meet its requirements under §307(a) concerning toxic pollutant limitations, resulted in N.R.D.C. v. Train,¹³ and a consent decree that became the controlling element of EPA's development of toxic standards. The consent decree identified 126 substances to receive full scale regulatory push using both technological and water quality standards-based effluent limitations. The best available control technology standards for 21 industrial categories were to be issued no later than December 31, 1980, with compliance by 1983. The Clean Water Act of 1977¹⁴ reflected the consent decree and required industry to comply with effluent limits for all 126 toxic priority pollutants by July 1, 1984. For any substance added to the list, compliance was generally required one to three years after promulgation of the final standard.

The Water Quality Act of 1987¹⁵ amended §301 to give industrial dischargers additional time to meet BAT limitations, but not to exceed March 31, 1989. The 1987 amendments also added at §303(c)(2)(B) a renewed emphasis on toxic pollutant control by requiring states to revise all water quality standards, to adopt water quality standards where needed for the §307(a) toxic pollutants, and furthermore, to utilize biomonitoring where no toxics standards were available. Finally, by §304(1) all streams exceeding toxic water quality standards were to be specifically listed by February 4, 1989, by the state and basin-wide strategies defined and implemented so as to achieve compliance with toxic water quality limitations in three years, i.e., June 1992.

More specifically, the 1987 Clean Water Act Amendments pushed the evolution of toxics control by setting ambitious deadlines and requirements for states to implement. In compliance with §303(c)(2)(B), states were to have adopted new water quality standards for toxics by February 4, 1990. LaJuana Wilcher, EPA's Assistant Administrator for the Office of Water, in a memorandum dated January 26, 1990, announced that all states not having adopted appropriate toxic standards will be announced after March 1, 1990, and will have until September 30, 1990, to adopt adequate water quality standards for toxics, or EPA will

[Page 3-5]

promulgate such standards in a national rule-making.¹⁶ On April 17, 1990, EPA published its list of 52 out of 57 states and territories not in compliance with the requirements of §303(c)(2)(B) It also briefly defined each state's deficiencies.¹⁷ As of August 1989, many states had done little in adopting specific numeric limitations.¹⁸ However, the states and EPA by February 4, 1989, had defined "hot spot" stream segments under §304(1), and new permits are being issued for dischargers to those streams to meet more restrictive water quality standards or biomonitoring requirements.¹⁹ This flurry of activity around the February 4, 1989, and February 4, 1990, dates is not diminishing. Permits for mining discharges and others are being revised with more stringent effluent limits and biomonitoring limitations, as states expand the number of specific pollutants requiring water quality limitations. In time the new water quality limits will become permit limitations.

For the natural resources lawyer to more fully respond to the permitting requirements of §304(1) "hot spot" control measures, or to the §303(c)(2)(B) water quality standards revisions, including biomonitoring implementation, it is necessary to have a basic understanding of the water quality standards concept and how it has been implemented. It is clear that water quality standards require levels of treatment considerably higher than those required by technology-related effluent limits.

[Page 3-6]

WATER QUALITY CLASSIFICATIONS AND STANDARDS: THEIR BASIC ELEMENTS.

The essential statutory authority for water quality standards is contained in §§303(c), 304, 303(d), 301(b)(1)(C), and 402. More specifically, §303(c) provides as follows:

(1) The governor of a state or the state water pollution control agency...shall from time to time (but at least once each three year period beginning with the date of enactment of the Federal Water Pollution Control Act Amendments of 1972) hold public hearings for the purpose of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards. Results of such review shall be made available to the Administrator.

(2) (A)...such revised or new water quality standards shall consist of the designated uses of the navigable waters involved and the water quality criteria for such...