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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — January 1976

Articles

Section 1424(e) of the Safe Drinking Water Act: An Effective Measure Against Groundwater Pollution?

by John B. Hemphill

Over fifty percent of the drinking water in use today has its source in underground water supplies.1 These groundwater sources are hydrologically related to surface waters, however, since surface water charges groundwater reservoirs and groundwater feeds springs and surface streams.2 Protection of one of these water sources, therefore, is meaningless without concomitant measures to protect the other.

Groundwater aquifers, whose importance has traditionally been neglected under water pollution statutes, in 1974 received partial regulatory protection under §1424(e) of the Safe Drinking Water Act.3 This Article will discuss the section's scope and meaning and will analyze the first application of §1424(e) by the Environmental Protection Agency (EPA) to protect a groundwater source.

Comment(s)

Environmental Defense Fund Attacks the Environmental Protection Agency's Failure to Set Limits on Organics in Drinking Water

Draining the industrial heartland of America, Ol' Man River carries a massive load of industrial and municipal wastes to the sea. New Orleans draws its drinking water from the Mississippi, and so its residents have for decades complained of the city's off-color, off-taste water. For decades, scientists have documented unusually high gastrointestinal and urinary tract cancer rates in New Orleans.1 More than 10 years ago, medical scientists began to document an association between environmental contaminants and cancer.2 In November 1974, the Environmental Defense Fund (EDF) demonstrated a statistically significant correlation between the organic chemicals in New Orleans water and its residents' abnormally high cancer rates. The same month, the Environmental Protection Agency (EPA) reported identifying 66 trace organics in New Orleans water. In December, Congress reacted by passing the Safe Drinking Water Act, which required the EPA Administrator to establish primary drinking water regulations which would set limits on all "contaminants which may adversely affect the public health,"3 and called on the states to enforce the new standards.

In March 1975, EPA issued proposed interim4 primary drinking water regulations which included limitations on organic chemicals as a group. In December, however, when it issued its final interim standards,5 the standard limiting organics was deleted. In its place, EPA issued new regulations, effective immediately, for special monitoring of these substances in 100 representative water supplies.

National Uniformity Under the Water Act: Two Circuits Uphold EPA's Authority to Issue Effluent Limitations Under §301

In key decisions concerning one of the most hotly contested ambiguities in the Federal Water Pollution Control Act Amendments of 1972, the Third1 and Seventh2 Circuit Courts of Appeals recently held that the Environmental Protection Agency has authority under §3013 of the statute to issue a uniform, single number nationwide effluent limitation applicable to all existing point sources within a particular industrial class or category. The cases are in direct conflict with an earlier Eighth Circuit ruling,4 which held that such limitations can be established only on a case by case basis for individual sources under the guidelines published by EPA pursuant to §3045 of the Act.

Whether EPA can promulgate rules governing effluent discharges from existing point sources under both §§301 and 304, as the agency contends, or can do so only under the latter section, as industrial petitioners claim in the more than 200 lawsuits now pending against EPA's effluent limitations for various point source categories, goes to the very heart of the statutory scheme for regulating water pollution. The ultimate resolution of this question bears directly on the achievability of nationally uniform effluent limitations within each category or class of industrial polluters, an oft-stated goal of the Amendments.6 Congress considered uniformity of standards within point source categories crucial for two reasons: first, to facilitate administration and enforcement under the Act, and second, to prevent industries from using economic blackmail (threats to move to a state with less stringent water pollution control standards) against states trying to do a diligent regulatory job.

Water Act's Oil Spill Notification Rule Survives Constitutional Challenges

It is an environmental truism that neither the ecosystem nor pollutants respect state lines. One state's factory emissions may become another's acid precipitation; one's polluted waste waters may cause bacteria blooms and fish kills in another's lakes. This phenomenon goes far to explain the federal government's growing involvement in air and water pollution control, traditionally a matter of state and local responsibility. The federal role now seems to some so pervasive as to strain the fabric of the federal system. Under the Clean Air Act, for example, several courts of appeals have recently found the Environmental Protection Agency lacking in commerce power authority to force the states to assist it in implementing politically unpopular transportation controls for urban areas.1

Implementation of the far-reaching Federal Water Pollution Control Act Amendments of 1972 (FWPCA-1972) has thus far not been seriously challenged as being beyond the substantive reach of federal constitutional power. Many litigants have, however, launched Bill or Rights attacks on the statute's stringent oil spill enforcement scheme, particularly one of its self-reporting requirements. A flurry of recent cases illustrates the problems, the major issues raised by these challenges, and the resilience of the Act in the face of this sort of attack.

The Environmental Protection Agency's Transportation Controls Still Face Constitutional Roadblocks

Four court of appeals have now considered the validity of the Environmental Protection Agency's attempt to compel the states to administer and enforce transportation controls under the Clean Air Act. The split in judicial authority which the first three decisions produced was analyzed in a previous ELR Comment.1 The D.C. Circuit's recent ruling,2 while kinder to EPA's regulatory approach than were the Fourth3 and Ninth4 Circuit decisions which preceded it, still leaves the law on this point very uncertain and the viability of the whole idea of transportation controls under the Clean Air Act open to serious question.

The Office of Technology Assessment Says ERDA's National Energy Plan Slights Energy Conservation

"Energy" is today more than a household word. In the two years since the Arab oil embargo, a great deal has been said, somewhat less has been done, and much remains to be achieved to solve the problem of energy shortage. The problem has two basic handles: increasing the supply of energy, or reducing the demand for energy. Both have their side effects. Increasing supply has a tendency to scar the land, foul the air and hasten the day when the earth's depletable resources will be exhausted. Reducing demand requires adjustment in lifestyles, lifestyles which depend heavily upon the use of energy for their convenience, mobility and luxury. Which of these approaches willbe emphasized by the federal government may depend on plans presently being laid and debated in the Washington bureaucracy.

Section 6 of the Non-Nuclear Energy Research and Development Act of 19741 (hereinafter the Act) ordered the Energy Research and Development Agency (ERDA) to prepare a comprehensive plan for energy research, development, and demonstration; and a program to implement this plan. ERDA's report, entitled Creating Energy Choices for the Future, was submitted to Congress on June 30, 1975.