Regulation of Water Quality: Is EPA Meeting Its Obligations or Can the States Better Meet Water Quality Challenges? Recent Controversies Over Toxics That Originally Were Not Regulated Lead to Questions About EPA's Ability to Regulate Effectively

REGULATION OF WATER QUALITY: IS EPA MEETING ITS OBLIGATIONS OR CAN THE STATES BETTER MEET WATER QUALITY CHALLENGES? Recent Controversies Over Toxics That Originally Were Not Regulated Lead to Questions About EPA's Ability to Regulate Effectively

JAMES R. ELDER, Director, Office of Water Enforcement & Permits, U.S. EPA

B. J. WYNNE, III, Chair, Texas Water Commission

DAVID EVANS, Partner, McGuire, Woods, Battle & Boothe

VICTOR M. SHER, Managing Attorney, Sierra Club Legal Defense Fund

JAMES R. ELDER: I am going to discuss what I want to describe as EPA's tightrope walk between the need for national consistency and state flexibility in implementation. I will discuss the obligations and roles of both EPA and the states.

The states need to be at the front line to take the lead on implementation, but what is the extent of this lead? What is the meaning of delegation? And what degree of responsibility is EPA left to retain?

EPA believes itself accountable to the President, to the Congress and ultimately to the American people to ensure the integrity and success of national and environmental programs under federal law. At the same time, we recognize that the states have an equal responsibility for their individual state laws.

When we delegate a federal program like the National Pollutant Discharge Elimination System (NPDES), it does not follow that we have yielded our responsibilities. There seems to be quite a bit of misunderstanding about both achieving delegation and the nature of EPA's responsibility once a program is delegated.

Currently, 38 out of the 50 states have basic NPDES delegation. Twenty-seven of those also have been delegated the pretreatment program. Thirty-four are delegated to regulate the federal facilities program. Roughly twenty have general permit authority delegated, and none have sludge permitting authority.

In order to achieve delegation, the state programs must meet certain standards. Even then, EPA's responsibilities persist. One of our ultimate responsibilities is the power to withdraw a deficient state program for either legal or implementation reasons. We have not exercised it yet, but have come close on a few occasions.

For example, we have a situation in the State of Kansas over deficiency in the state law regarding public participation. We are evaluating the program in the State of Oregon. Their performance has been so deficient over the last few years in issuing permits that they would not even agree to issue close to the number that we believed appropriate. We had to conduct an on-site evaluation with staff from the Seattle regional office.

Pressure is exerted on EPA in both directions. On the one side is pressure for greater consistency. The regulated community does not like to see plants in different states treated differently for a national or multi-national company. They want all of their facilities treated alike in terms of permit requirements, types of applicable enforcement action, and so forth.

On the other hand, states typically press for more flexibility and autonomy.

But sometimes the states rely on EPA to be the backstop when it comes to justifying enforcement actions. The state will make a reference to those mean people from EPA responding more unfavorably than the state on a compliance schedule or the amount of a company's civil liability.

This is true also of water quality standards. Where EPA has the responsibility to issue scientific criteria documents, the states are supposed to decide on their state standard for that pollutant, through their scientific and political processes. This has not worked well.

In the meantime, in light of matters like dioxin, some governors are writing to us, including the Governor of Oregon, advocating that EPA adopt a national standard given the controversy associated with trying to adopt a particular standard for highly toxic pollutants like dioxin. The states also need us to politically sell the toxics standards and the contents in a given permit.

Then there are situations where we simply have honest disagreements, and that is legitimate.

The two polar opposites are unworkable. Under the statute, EPA cannot completely delegate and can not relinquish its oversight function. Nor can we dictate exactly what the states should do.

What has EPA done about this? In 1984 the Agency developed a delegation policy on oversight which is still applicable today. In it, EPA and the states share responsibility for implementation of federal laws, and the relationship is [22 ELR 10030] intended to be a partnership, although it has not always been easy to build good partnerships.

We involve states in setting priorities and negotiating commitments each year on that basis. In addition, EPA and the states should agree initially on the EPA response for both good and bad state performance. The response then is a known factor, whether the act occurs in permitting, inspections, or enforcement. These commitments form the framework for evaluating state performance and driving subsequent EPA actions.

A timely and appropriate enforcement system also requires that each programset out what is expected of the state, and how EPA will respond if expectations are not met. This includes specifying how the state will be notified, what consultations will be held and how disagreements will be evaluated for resolution.

We also reserve the right to take direct enforcement action. But where a state action at least approximates what EPA is seeking, we do so infrequently.

A 1977 study found only four situations where EPA regions had taken to what we call overfiling a state action. Overfiling occurs where the state has taken enforcement action that we find so grossly deficient that we step in and file our own federal civil judicial action on top of it. That does not include, however, situations where we have taken federal actions as part of agreements with a state where they wanted us to take the action because it was a political risk. Nor does it include situations where the timely and appropriate time frame had expired and moved it into our 'open season' status.

There are many obstacles to national program consistency; let me briefly review some. First, the clean water law does not promote efficiency. EPA authority is intertwined even with delegated programs. Water quality standards are an example.

Second is EPA's decentralized structure. Headquarters has heated discussions with our ten regional offices.

From the very beginning, under Bill Ruckelshaus's first term, EPA intended to make the regions relatively autonomous. Even today, EPA probably is the most decentralized federal agency in existence.

So, you have the autonomous role of the ten EPA regions. You have the pressure of other regional concerns, because the regions are expected to look at issues geographically and politically within the states for which they are responsible and to identify the most critical environmental problems.

At the same time, EPA headquarters issues national guidance documents covering various situations. All of this puts headquarters and the regions frequently at odds in the same way that regions can be at odds with state administrators.

A third problem is that of the different state organizations: state agencies, boards and commissions. Each has different enforcement tools. Frequently, each has different laws that are not quite parallel to the federal law. Further, the different laws, enforcement tools and organizations often share implementation responsibilities with other organizations.

We are well acquainted with situations where different environmental boards and commissions have frustrated EPA goals. Since we do not give these bodies any grant money, we have even less leverage than with a state line agency.

We also see different philosophies among state organizations. Further, as with EPA headquarters and regions and state agencies, we see different philosophies among state Attorneys General, the state boards and commissions. These differences focus on such questions as the role of enforcement and how aggressive to be in permitting. Even within organizations, managers may have different philosophies.

Certainly, there are other philosophical disagreements between EPA and the states. As they may be valid, it can be difficult to reach common ground.

In the last few years we also have seen more frequent rivalries, chiefly over interstate issues. An example is the Chesapeake Bay, with squabbling between Virginia and Maryland, Maryland and Pennsylvania, and so forth, and all of them fighting with the District of Columbia for not doing enough. A similar situation affects the six states in the Great Lakes region, where each state is trying to ensure that it is not too far out ahead or too far behind the others. We also see this in the New York-New Jersey concern over New York Harbor.

States' abilities and resources vary also. Several states have been severely limited by budget cuts. We keep trying to be more flexible and to adjust our relationship with a given state to accommodate these particular meteorites that happen to hit them from time to time.

An evaluation study has shown perhaps the largest factor affecting all these relationships is the personal relationships between people like the water division director in a given EPA region and the head of the state water program. If they do not particularly respect one another, nothing else seems to work right. If they do respect one another, they can overcome most problems.

A recent analysis of the state water quality standards program evaluated how the states were faring in implementing the amendments to the Clean Water Act in 1987. When the three-year deadline came up in February 1990, only 6 of the 57 states or territories had complied fully by adopting standards for priority pollutants under Section 303(c)(2)(B).¹

With regard to NPDES enforcement, we have been tracking the performance of each of the states for the last few years.

The national requirement of timely and appropriate enforcement provides that, after one quarter of appearing on a publicly available report called the "quarterly noncompliance report," the state must take action to ensure that the facility does not reappear on the report. If it does reappear, a report must be filed called the "exceptions list," stating why no formal enforcement action or other action has been taken against the facility to force that facility into compliance. Headquarters then must determine whether the state decision is justified.

Fiscal 1989 provided our best performance, with timely and appropriate enforcement in 83 percent of the situations. This came to 1,727 timely and appropriate actions out of a universe [22 ELR 10031] of 2,086 instances among major facilities that met the various criteria for significant noncompliance. A number of states had 100 percent performance.

Certain states, however, had dismal performance percentages with industries and sewage treatment plants, led by Nevada with a zero percent performance. Nevada had seven facilities at one time or another during the year in significant noncompliance and took no action. Other states, like Arizona at less than 40 percent, and Maryland, did not do a commendable job either. So, while the aggregate success rate is good, the state-by-state statistics show the variations.

You must understand that this system also applies to EPA regions where the state is not delegated. Twelve of the fifty states are not delegated: Idaho, Alaska, South Dakota, Texas, Oklahoma, Arizona, and New Mexico, Louisiana, Florida, Maine, Massachusetts, and New Hampshire. These EPA regions had a slightly better track record for their states than the delegated states did for all of theirs.

A minimal expectation is that each major NPDES facility — of which there are roughly 7,500 in the country — be inspected at least once a year. Here again we see wide variation in state performance.

Presently, EPA conducts about ten percent of the inspections because we expect the states to take the lead. EPA tends to do more in the states where the program is not delegated. Contrary to national guidance, in some states we do no inspections at all.

EPA views the ten percent of its own inspections as an opportunity to determine whether states are in compliance with our sample inspection manual and that the chain of custody procedures they are using is proper.

Also important to us is our national computer system, the Permit Compliance System (PCS), which focuses primarily on the 7,500 major facilities. We are concerned about timely data entry. As of October 1, 1989, we had a data entry performance of 78 percent for both discharge monitoring reports and inputting original permit limits.

We have tried to encourage state participation through meetings where we set priorities. We have a State EPA Committee composed of state agency directors who rotate. The state and environmental directors serving on it add up to one per region for a variety of reasons, and seven other participants are involved for other reasons such as appointment by the National Governors' Association.

We also have frequent contact with the State Association of Water Polution Control Administrators, with whom we meet during the year to keep them involved. In fact, they participated in our major strategic planning meetings this past winter when we were trying to develop our four and five year strategic plan.

We also have tried to keep national performance expectations to a small number relating to permitting, enforcement and inspections. And, despite many other areas of activity, we have tried to focus on the most critical measures of state performance.

We also try to be flexible about what measures to set in the first place; what definitions apply to timely and appropriate and to significant noncompliance; what type of inspection counts in terms of achieving inspection coverage.

We do expect each EPA region to negotiate specific commitments annually with each state. This is when competing state priorities are addressed. But earlier we were overly optimistic in certain expectations such as reducing permit backlogs.

In 1989, we took new steps to change that situation. At the direction of the State EPA Committee, we conducted two pilot projects to develop tailored oversight with North Carolina and Virginia. These were states with consistently high performance; as a reward we offered them reduced federal oversight in terms of real time permit review.

Under the pilot program, roughly 42 percent of the permits would not be examined on a real time basis. The state had a free hand to draft the permit and issue the public notice. EPA would look at it, if at all, during a subsequent audit.

We also agreed to reduce some of the inspection oversight requirements, but maintained the timely and appropriate criterion.

The pilots were moderately successful, but when changes in state personnel occurred, good interpersonal relationships fell apart. In Virginia, additional pressures surfaced relating to the Chesapeake Bay.

We also found that decreased federal oversight brought no resource or time savings. The states complained of too many people trying to measure the results. They were spending so many hours being interviewed or writing down what they were doing differently that they ended up spending as much time as if nothing had changed in the first place. In short, we are still learning.

Where do we go from here? First we must recognize the wastefulness of a bad relationship. Where a state and an EPA region are not getting along, somebody at the division director level or the regional administrator level has to try to improve things. Otherwise we will not carry out our mutual mission of protecting water quality.

Finally, many of the problems seem driven as much by perception as by reality. We have to deal with the perception of federal/state relations as much as with the difficulty of the realities.

B. J. WYNNE, III: Jim Elder is right about the confusing structure of state agencies. A number of Texas agencies are responsible for environmental matters, but the Texas Water Commission these days seems to be the agency operating most of the programs.

The Commission regulates water utilities and water rights. Our two primary environmental program areas of interest in a discussion of delegation of federal programs are our water quality program and our hazardous and solid waste program.

I have more experience and have enjoyed more success in delegation of hazardous and solid waste. In fact, we are told that EPA is going to the Federal Register on May 24, 1990 with our [22 ELR 10032] Hazardous and Solid Waste Act delegation. Now we have moved on to qualifying for NPDES delegation.

Until 1987, no real emphasis was placed on NPDES delegation. I saw the duplication of effort between the state and federal programs and concluded that this would be one of those rare opportunities in the environmental regulatory business to reconcile the competing objectives of environmental protection and economic development. At the Water Commission, we are charged with doing both, and protecting consumers as well.

We also have a good working relationship with our Region, perhaps better than the Region's relationship with Washington.

We tend to avoid some of the pitfalls that you see in other states where the state agencies are competing with the federal agency for various reasons. Since most of our programs our consolidated in a single agency, fewer personalities are involved.

Our agency has issued roughly 3,900 water quality permits of which about 2,900 also require federal permits under the Clean Water Act. We view that as an unwarranted duplication of effort. To correct this duplication, we are working aggressively toward NPDES delegation, with a target date of October 1, 1990, which coincides with the beginning of the new federal fiscal year.

To illustrate the problems of duplication, let me summarize the mechanics that an applicant faces in order to obtain the permits necessary to operate if they will be discharging into the waters of the state or of the United States.

First, the applicant must come to the state — the Texas Water Commission — for a discharge permit. Commission staff evaluate the permit application for completeness, negotiate problem areas with the applicant and hold permit hearings.

Under our state Administrative Procedures Act, if the permit is contested, an adjudicatory hearing is required before Commission examiners. Parties are designated; evidence is presented, cross-examination is conducted, and a record is made. The matter then comes before the Commission, which I chair, and a decision is made. An appeal from this decision can be had in the District Court under the "substantial evidence" rule. The appeal can be a lengthy process.

If the permit is issued, the applicant then goes to EPA for a NPDES permit. With the exception of the adjudicatory hearing, the applicant repeats the process.

We work closely with EPA Region VI in this process. In fact, under a cooperative agreement, we draft most of their NPDES permits.

The good news is that the process is not as cumbersome as it sounds. It is, however, more cumbersome than it needs to be.

We also have duplication of effort in enforcement. For example, in 1987 the Water Commission fined the city of Houston a half-million dollars and issued a compliance order that required $ 2 billion in improvements to their waste water treatment system, placing them on a schedule they are still on today. Then EPA filed an enforcement action, which they are negotiating at the Justice Department, and they are about to file a lawsuit.

That is inefficient. The message sent to our regulated community, to our cities and our industries, is to be careful negotiating with the Water Commission, because that does not guarantee that they will not be faced with a subsequent EPA enforcement action.

The process lacks predictability. Delegation would provide predictability. It would ease our task of negotiating with the respondents in these matters. Compliance might come a little faster. To the extent that we are in the business of protecting the environment, swifter compliance is in the public interest. Obviously, it makes sense not to have both agencies doing the same job when one agency will suffice.

In Texas for a long time we have had the philosophy that environmental regulation is bad for business — and a good business climate is a priority in Texas. This philosophy has been important, especially when you consider that Texas is a big oil and gas producing state.

Lately, that attitude has changed considerably, consistent with national trends. I used to justify our enforcement actions by hinting at even more stringent EPA enforcement options. I don't have to do that anymore. Now I can politically justify enforcement for its own sake. Presently, we enjoy plenty of support in the state for environmental enforcement, and our program is and has been recently aggressive.

Jim Elder mentioned flexibility. There is a profound tension between the need to maintain national standards and a national environmental policy to which we in Texas are committed, and allowing the states enough flexibility to take into account their specific circumstances.

The State of Kentucky comes to mind as an example. Kentucky is a big coal-mining state, unlike most other states. Kentucky must have the ability to adopt and implement a program that takes into account those activities.

We do not have much coal-mining in Texas. But we do have a large chemical industry, and we generate 20 percent of the national total of hazardous waste. Ten percent of the hazardous waste generated nationally comes from the chemical and petroleum refining industries on our Gulf coast. Our hazardous waste and water quality programs should be tailored to that challenge.

When you generate 60 million tons of hazardous waste every year, you have a lot to track. In response, our agency is seeing in many respects a merger of the federal and state programs. In light of the industries that we regulate, we generally regulate under both programs.

Another issue in Texas is dioxin, although not to the extent that it is in other areas of the West where there is a large paper industry. Five plants in Texas utilize the bleach craft process that is of concern when you consider dioxin.

Texas has a state standard for dioxin somewhat higher than the EPA's standard in tolerable level of risk, corresponding to somewhere between your chances of being struck by lightning and being killed in a home accident. We now are reviewing the standard with regard to dioxin levels in edible fish tissues, based on disturbing data from the Texas Gulf coast.

[22 ELR 10033]

Our approach to dioxin is a little different; we deal with the problem on a plant-specific basis. This approach is called "best available control technology (BACT)."

Every five years our plants must renew their permits. As that occurs, we look at the technology being used. We are encouraging our industry, with considerable success, to implement alternatives to the traditional bleaching process that produces dioxin.

EPA's approach is the 304(1) process.² We find our approach better; in Texas, EPA has yet to issue a permit or set standards under 304(1). I am told that they will have done so by the end of this summer.

The public doesn't think in terms of the risk; they think in terms of chemicals and food supply. They want a response. In dealing with dioxin, we have found the BACT approach better suited to meet this concern. It lets us show what we are doing about the problem.

As to compliance and enforcement, in Texas we do most of the field work. Through a grant agreement with EPA, we perform 62 percent of the inspections of the approximately 900 major permits that EPA monitors in the state. EPA performs the rest, relying primarily on self-reported data. We do inspections to complement the self-reported data. Some in the environmental community criticize our reliance on self-reported data, but it generates a good number of enforcement actions in Texas.

Texas also has a field network of fifteen district offices, with nearly 300 field employees to support our inspection effort. It is difficult for EPA Region VI to match those kinds of resources. With roughly the same budget as Texas, the Region must be concerned with Louisiana, Arkansas, Oklahoma and New Mexico as well.

We try to target resources to maximize the return on investment. Thus, we believe that, at least in Texas, delegation is the right approach. Further, Arkansas is the only other delegated state in the Region. Since Texas is the largest state in the Region, we hope to make it a little easier for Region VI by taking over the program for them.

What stands in the way? The state's track record is always an issue in delegation. Until 1985, Texas had a poor performance. Then we reorganized our state environmental agencies and water agencies, resulting in real reforms that have generated an exemplary track record supporting delegation for Texas.

Much of the record is based on forms that would be useful at the national level, for example, our statutorily mandated enforcement hearing rule. We rate so highly on the timely and appropriate measurement at EPA because by statute we cannot hide from enforcement actions.

Our rule requires that when four consecutive months of self-reported data indicate a violation in each month, we hold a public hearing at the Water Commission to dispose of the matter one way or the other. In addition, we must observe time limits and mandatory enforcement procedures. This should be in place in other states that either have delegation or want it. Such a statutory provision or a similar requirement from EPA would address some of the variations among the state programs.

Texas also has what we call the 75-90 rule, which is a national model that requires that when waste water treatment facilities reach 75 percent and then 90 percent of capacity, they take certain steps to seek an amendment to their permit to increase their treatment capacity. These provisions are automatically triggered from the self-reporting data which is the basis of our water quality program.

We have initiated 727 enforcement actions and issued 539 orders since 1985, for a 74 percent completion rate. Over the same period of time (while making a direct comparison is impossible because of the many other intangible factors involved), EPA initiated 64 enforcement actions and issued 38 orders for a 59 percent completion rate.

Any discussion of the relationship between the state agencies and the federal agencies has to include a discussion of the relationship between the Regional Office and headquarters, because there are tremendous variations there as well.

Levels of cooperation between the Region and headquarters vary around the country. These are political appointees who may or may not be in favor at headquarters, which affects their level of autonomy. It has been suggested that, if EPA becomes a Cabinet-level agency, the Regional Administrators be Presidential appointees confirmed by the Senate, to give them a mantle of acceptability and the ability to be autonomous in the provinces.

Frankly, one of our problems in Region VI is that we have had difficulty getting the authority to make decisions regarding, for example, legal issues and delegation. Further, when the call is made, it must be reviewed in Washington. The Region's decision is bogged down in this interplay.

Region VI did secure a commitment from EPA headquarters that the Region will make the decisions on legal issues and delegation. That is a watershed event for us in obtaining program delegation. So, while some kinks remain in the process, we are progressing.

DAVID EVANS: Water quality issues today are far too complex to suggest that either the federal or the state governments should have sole responsibility for their administration and enforcement, or that there should be either national uniformity and standard-setting, or standard-setting solely on a state-by-state basis.

In my view, both the federal and state governments play an important role in the protection and enhancement of water quality. The goal should be a partnership between them that provides for the efficient allocation of their combined resources to produce the best water quality benefit that can be achieved. The goal also should be to ensure that the programs are administered in a consistent and sound manner.

[22 ELR 10034]

Unfortunately, we are far from achieving these goals. In many cases, either the states default to EPA and waste state resources or, where the states do act, there is overlapping federal and state decisionmaking that leads to conflicts,inconsistency and uncertainty over present and future water quality requirements.

Industry frequently is caught in the middle, unsure of the ultimate regulatory requirements. In some instances, industry even finds itself in the unenviable position of attempting to act as a mediator in conflicts between EPA and the state water quality agencies.

While many factors may contribute to these conflicts, I would like to focus on what I consider the principal cause: Congress's and EPA's failure to allocate federal resources properly. Through proper allocation of the available resources, a true partnership between EPA and the states can be achieved.

Simply put, EPA should spend more of its resources on technical support and guidance to the states and less on second-guessing them, challenging their legitimate decisionmaking authority, and attempting to impose its views on the states. By guidance to the states, I do not mean simply instructing the states, as is unfortunately the case with much of the guidance from EPA today. I refer to guidance that provides sound technical and scientific information to the states as well as the resources that the states need to run sound and responsible water quality management programs.

Improper allocation of resources by the federal government underlies many of the problems facing today's federal and state water quality programs, particularly in the toxics area. While we have seen rapid advancements in our ability to detect toxic substances at very low levels, we lack the basic data and information needed to determine the true impact of these substances on human health and aquatic life. We also lack the basic information on the technologies needed to achieve the very low discharge levels required by the toxic standards that are being promulgated.

Despite this lack of information, Congress and EPA have imposed upon the states stringent deadlines for the development and implementation of water quality standards for toxic substances. The range of complex scientific and technical issues presented by these federal requirements is enormous.

Many states have responded either by refusing to act or by blindly adopting EPA's criteria and guidance because they do not have the scientific and technical resources to exercise their own discretion. Further, the states know that any attempt to exercise discretion that ultimately leads to less stringent standards is likely to be challenged by EPA. Therefore, it is not surprising that the approach of many states is to let EPA make the decisions.

Unfortunately, this contributes to the perception that the states are not capable of doing the job.

State resources spent shuffling papers and simply implementing EPA mandates are wasted resources. The states are closer to the dischargers and the water quality issues. Whether EPA wants to admit it or not, the states have the ability to do the job, provided they receive technical and scientific support from EPA. Some states have made a conscious effort to make their own judgments regarding the appropriateness and correctness of EPA's criteria and guidance. Unfortunately, state decisionmaking is often challenged by EPA, particularly where the states propose requirements that are perceived by EPA to be less stringent than the federal criteria.

A classic example of this situation is the current debate over the regulation of dioxin. Although EPA has adopted water quality criteria for dioxin, it acknowledges that many scientific and technical issues remain to be addressed regarding the true impact of dioxin on public health and the environment. Nevertheless, there appears to be no significant effort by EPA to find answers to these issues or to provide the states with the information they need to make sound decisions. The states are forced either to default to EPA or to take the initiative and adopt their own standards.

Some states have chosen to exercise independent decision-making authority and to adopt a water quality standard for dioxin. In some cases, this has resulted in standards less stringent than the EPA criteria. Unfortunately, EPA has objected to these standards and threatens to reject any dioxin standard that is less stringent than its own, not because the less stringent standards are lacking in scientific basis but because EPA disagrees with a result that is inconsistent with its own criteria.

Significant public and private resources have been devoted to this issue. If EPA rejects the less stringent standards, additional significant resources will be expended in the administrative process and the courts until the issue is resolved. In the meantime, implementation will be delayed.

Examples abound in the water quality area of EPA overriding legitimate state decisionmaking, including decisions on how to conduct monitoring programs, interpretation of the anti-degradation policy, and mixing zones.

These are instances where EPA has overridden state decisionmaking, not necessarily based upon sound, technical or scientific information, but simply because EPA has concluded that state decisionmaking is at variance with its own views of how the decision should be made.

The system would work better if EPA committed more of its resources to assist the states in their own regulatory programs. There are a number of benefits to EPA functioning more as a resource to the states and less as a big brother or task master. First, it would make for better, more informed decisionmaking because additional resources would be devoted to generating the data and information so critical to the decisionmaking process.

Second, it would encourage the states to become more actively involved in the decisionmaking process and to exercise the discretion and regulatory authority intended by Congress.

Third, it would provide for more efficient use of the limited resources available. Resources wasted by doing EPA's bidding or by conflict among the states, EPA and industry are far better devoted to long neglected programs such as: wetlands, stormwater management, and non-point source pollution. There is a long list of water quality related problems that are being ignored or inadequately addressed [22 ELR 10035] because resources are wasted, and as a result of overlap and conflict between EPA and the states.

Finally, it would provide clear direction to the regulated community and therefore cause less delay in implementation of the requirements.

Under this approach, the states, rather than EPA, would be the principal regulators as intended by Congress when it first enacted the Clean Water Act. EPA would assume more the role of a resource to the states by providing technical and scientific information rather than challenging state decisionmaking.

This approach may cause some lack of uniformity nationwide. The states may make decisions with which EPA disagrees. But given its benefits, lack of uniformity is not necessarily bad, so long as individual decisions are based on the sound and conscientious exercise of regulatory authority using the best information available.

Certainly this is preferable to requirements which, while uniform nationwide, make no sense when applied on a state-by-state or case-by-case basis. This is not to suggest that under this approach EPA would not retain a significant role in the regulatory process. Certainly, EPA should continue to set national policy. It has an oversight responsibility to ensure that the state action is consistent with the minimum requirements of the Clean Water Act and to ensure that state agency action is neither lacking in technical basis nor arbitrary.

But the EPA role under this approach would more closely resemble the role of the appellate courts in our judicial system. These courts do not substitute their judgment for that of the lower courts, but rather review lower court decisions to determine whether or not there is some basis for the decision.

While I agree with the comment made earlier by Buck Wynne that in the past, an approach like this would not have been workable because it was correctly perceived that state decisionmaking often was not responsible, this is no longer true.

Public sentiment and support for environmental protection throughout the United States has evolved to a point where state water quality agencies will be forced by their own state political systems to exercise independent judgment and do the right thing. That is, provided that they have the ability, resources and support from EPA to act freely.

It is dangerous to generalize, and surely there are particular programs and circumstances where the approach outlined here may not be appropriate. But water quality would be far better served over the long run if this approach were the rule rather than the exception as it is today.

VICTOR M. SHER: The Sierra Club Legal Defense Fund is an independent public interest law firm. Despite the name, we are not part of the Sierra Club, although we frequently represent the Club along with other organizations. Since my office opened in January, 1987 we have been involved in a series of clean water issues along with other matters in the Northwest, including pesticides, toxic dredging in Puget Sound and national forest management issues.

Section 101 of the 1972 Clean Water Act Amendments set three primary national goals.³ They are: to eliminate discharge of pollutants into navigable waters by 1985; to achieve an interim minimum goal of water quality sufficient for the protection and propagation of fish, shellfish and wildlife and which provides for recreation in and on the water by July 1, 1983; and to prohibit discharge of toxic pollutants in harmful amounts.

No one in the United States today denies that there has been progress on clean water since 1972. But have these goals been achieved? You cannot argue that they have.

Five years after the Act's target date for eliminating the discharge of pollutants, we have not even reached the interim goal of fishable, swimmable water quality set for 1983. We are just taking the initial steps under the 1987 amendments to develop strategies to eliminate toxics.

I want to discuss two major points. The first concerns the debate over the federal/state role in water quality regulation. I want to discuss the philosophy and the debate behind the 1972 amendments, because that debate was resolved — I think properly — in 1972. While, by virtue of that resolution, we are in the proper framework, both the states and the federal government have been deficient in developing strategies to address many of our most seriously polluted waters. This holds true particularly with respect to non-point source pollution, including such pollution containing toxics. This has been an obligation of both the states and federal government since 1972, not just since the 1987 amendments.

Second, I want to discuss the application of state water quality laws to the federal government and federal facilities.

Jim Elder referred to EPA's tightrope walk, and all three of us have been asked to address the balance between the federal and state roles in developing water quality standards and regulating water quality issues. The 1972 Act explicitly considered this issue, greatly expanding the federal role in water quality regulation. For the first time, federal water quality law specified concrete goals coupled with deadlines for reaching the goals. The 1972 Act rejected the follies of earlier federal water pollution legislation since the federal government's first pronouncement in 1948. These early acts had limited the federal role to providing information, technical support and assistance to the states.

The need for a strong federal role resulted from the widespread failure of the states to act effectively on their own. The underlying reason for their failure was not merely transitory or political; the failures were precipitated by underlying structural flaws in our federal system.

In testimony on the 1972 Act, Governor Anderson from Minnesota said,

I suggest that there is one insight which should be shared with you. I suggest that every governor in the country knows what is the greatest political barrier to effective pollution control.

[22 ELR 10036]

It is the threat of our worst polluters to move their factories out of any state that seriously tries to protect its environment. It is the practice of playing off one state against the other. It is the false but strident cry of the polluter that clean air and water means fewer jobs. Every governor in this country knows that when he tries to put some teeth into his state's anti-pollution laws, his efforts will be met by precisely these sorts of threats.

My answer to you today is this, the answer to threats is uniformity. The only way to stop polluters from political intimidation is to prevent them from raising the alternative of moving to a place where pollution is allowed. There should be no such place in this country.⁴

The structure the Act set up in 1972 to achieve uniformity required the federal government to establish a federal floor and to allow the states through Section 510 to impose more stringent water quality measures.⁵

I will focus on the provisions in Section 303 of the Act that require programs to improve waters that are not going to achieve water quality standards through technological controls.⁶

Section 303 generally charges the states with adopting water quality standards for surface waters. These standards consist of the designated uses of the water and criteria for describing and achieving those uses. The standards must protect the public health and welfare, enhance the quality of water and serve the purposes of the Act. That is, they must restore and maintain the integrity of the nation's waters.

Section 303(d) requires the states to identify waters where water quality standards will not be achieved even after applying the technology requirements of Section 301. Identification is generally through the normal NPDES permitting procedure, which is technology-driven.

These waters are called "water quality limited segments." For each water quality limited segment, the state must establish what is called the total maximum daily load (TMDL), which is the sum of the "waste load" and the "waste load allocation," which refer to pollution loading from both point and non-point sources.⁷ The state incorporates these TMDLs into a plan for achieving water quality standards.

Section 304(a)(2)(D) of the 1972 Act required EPA to identify pollutants suitable for TMDLs by October 18, 1973, one year after the Act passed.⁸ The states then had six months in which to submit proposed lists of water quality limited segments and propose TMDLs for the segments.

EPA then was to approve or disapprove of the state list. If EPA disapproved, it would promulgate proper lists and corresponding TMDLs.

Despite the one-year deadline, EPA failed to identify any pollutants suitable for TMDLs until five years later in December, 1978 and then only under court order. At that time, EPA designated all pollutants under appropriate circumstances as suitable for TMDLs. But even after publishing the TMDL regulation, virtually no states submitted either water quality limited segment lists or TMDLs.

In 1984, the Seventh Circuit held that the prolonged failure of a state to submit proposed TMDLs could amount to a "constructive submission" of no TMDL.⁹ The state's failure to submit TMDLs could be construed as a determination that no TMDL was appropriate, a determination that EPA then had to approve or disapprove. If EPA disapproved, it was to promulgate federal TMDLs. Following that decision, EPA issued regulations and guidance in 1985, thirteen years after the 1972 Act, defining TMDLs and describing the rules and responsibilities of the states and EPA in designating water quality limited segments and developing TMDLs.¹⁰

In my part of the country, the Pacific Northwest, we still do not have any TMDLs. A 1989 GAO report concluded that EPA Region X and the states of Oregon, Washington, Idaho and Alaska have not yet set maximum loads for 601 out of 602 identified water quality limited segments.¹¹

In Idaho alone, more than 1,200 miles of rivers were inventoried and found not to fully meet water quality standards.¹² Yet the state has no TMDLs and no plans to set any.

Oregon has set TMDLs for one water quality limited segment and for one of two pollutants found on another limited segment. Both of these actions are a result of a consent decree in a citizen's suit that was brought to compel regulatory action on this issue.¹³ Washington is working on one TMDL for the Spokane River.¹⁴

Region-wide we are told now that TMDLs are planned for about 40 of the remaining 600 water quality limited segments.¹⁵ That represents well under ten percent of the waters already known not to support beneficial uses!

The 1987 Clean Water Act Amendments to Section 304(1) required the states and EPA to identify water segments that would not foreseeably achieve water quality standards despite the application of technology-based controls. Further, they required development of what is now called individual control strategies (ICSs) to achieve water quality standards on those water bodies.

At this point, the focus of Section 304(1) is on priority toxic pollutants from point sources identified under Section 307.¹⁶ In [22 ELR 10037] the Northwest, the states and EPA are working on these ICSs. In fact, a critical issue in this area is dioxin because of the thirteen chlorine-based mills in Oregon, Idaho and Washington. The major water pollution problem in the Northwest and throughout the country, however, is non-point source pollution, not point source pollution.

While both federal and state governments are devoting enormous resources to regulating toxics from point sources, their impacts are minor when compared to non-point source impacts. That is not a new realization.

For instance, in 1975, Idaho submitted a water quality report to EPA that flatly called non-point or diffused sources the largest source of pollutants in Idaho. The report called for a program to prevent degradation of Idaho's waters from non-point pollution. Fifteen years ago, the report said, "It is evident that the streams and lakes of Idaho will not be restored to an acceptable level of purity or protected from degradation where they are presently in excellent condition unless a comprehensive and sustained program is initiated to control suspended solids from non-point sources."¹⁷

Put another way, in the absence of effective control of non-point sources, even zero discharge from point sources, as contemplated by the Act, would not solve Idaho's water pollution problem. Every report to EPA from every state in the region since that report has said the same thing.

The states in the Northwest, except for Oregon, which is required to do so by consent decree, tell us and the EPA that they do not intend to devote resources to developing more TMDLs. Their justification is that they are using available funds to implement the 1987 Section 304(1) requirement for which an explicit deadline exists.

While it is clear that budget constraints and the additional deadlines imposed by the 1987 amendments pose difficulties, the TMDL requirements of Section 303(d) provide a comprehensive approach regardless of the source of pollution. Since non-point source pollution, particularly in the Northwest, is the most serious problem, Section 303(d) deserves the regulatory attention of both the state and federal governments. In addition, setting TMDLs can be useful in identifying and enforcing efficient pollution control measures.

Collectively we cannot afford to ignore non-point source pollution. It is misleading to think that non-point source pollution does not include toxics. It includes agricultural runoff, pesticides and urban runoff. These often carry very toxic materials that flow into the waters.

The Section 303(d) TMDL process provides the framework for addressing these problems where the water is most seriously polluted.

This process takes time, effort and money, but as Senator Muskie said in my favorite quote from the Clean Water Act adoption debates,

Can we afford clean water? Can we afford rivers and lakes and streams and oceans which continue to make life possible on this planet? Can we afford life itself? (…) [T]hese questions were never asked as we destroyed the waters of our nation, and they deserve no answers as we finally move to restore and renew them. These questions answer themselves."¹⁸

We have reached a point in our struggle against water pollution where, as we say in the Northwest, we must either fish or cut bait. If we are serious about restoring the quality of our nation's waters to a level that will support life in the future, then we ought to be prepared now for some sacrifices in that effort.

One such sacrifice should come from someone more accustomed to dictating the necessary sacrifices than making them: the federal government. Regarding regulation of federal facilities I merely refer you to Friends of the Earth v. U.S. Navy.¹⁹ In that case, the court stated that the waiver of sovereign immunity in Section 313 of the Clean Water Act requires the Navy to obtain a shoreline management permit under Washington state's Coastal Zone Management Act just like anybody else.²⁰

Particularly significant in light of this decision is that Section 208 of the Clean Water Act requires the states to develop plans, including through land-use controls, to control various forms of non-point source pollution.²¹ The states might consider adopting as water quality measures land-use controls to address non-point sources of pollution. These would apply not just to actors within the state but also to the federal government as an actor on federal lands within the site.

DISCUSSION

ELDER: In terms of assessments on a state-by-state basis, non-point source pollution is the largest problem. But that assumes that the point sources are controlled properly. We have found repeatedly that nothing is self-sustaining in the NPDES program. If a state's vigilance or EPA regional vigilance subsides, then noncompliance and point source contribution increase. The 305(B) assessments did not adequately address this problem.²²

Texas's 75-90 law is one of the two best state programs in the country to prevent sewage treatment plants from getting [22 ELR 10038] out of compliance in the first place. Wisconsin should be complimented as well.

We devote a great deal of EPA resources to technical assistance of the type that David Evans discussed. Given our lack of resources, the difficulty for us is balancing our "white hat" and "black hat" roles.

SHER: I wanted to ask Jim Elder where citizen's enforcement fits into the statistics on achieving compliance and permits efficiency, if at all.

ELDER: It is important that the provision exist and be exercised. But usually citizen groups only become aware of a facility after it has breached the timely and appropriate criterion or has found a way to attack a state or federal action where the facility's noncompliance has been papered over. Citizen's suits have been very helpful, though, in addressing minor facilities to which we at the federal level pay less attention.

WYNN: Let me give a state perspective. We deal extensively with public interest groups in Texas. The Sierra Club of Texas is probably the largest of those, and we find that they play a significant role in development of our water quality standards.

Generally, after our tri-annual review, the Sierra Club files a lawsuit. Three years go by, and nothing happens. Then we conduct our next review in which we address the issues that were raised in the last lawsuit. They file another lawsuit, three more years go by, and we address the issues arising in the second lawsuit. The case never really gets to court, but it causes us to address their issues, albeit three years later. It is not how the system is intended to work, but it does more or less work.

Public interest groups balance out the industry interests where we are usually caught in the middle. Public interest groups also play a significant role in selected permitting activities, specifically where a big plant is coming to Texas or needs a permit renewed.

The Sierra Club generally is sensitive to the state's needs and sentiments for economic development; its role is that of insisting on standards, suggesting review procedures and so forth, rather than assuming the role of a NIMBY advocate. Other public interest groups that do assume the NIMBY position muddy the waters.

We do not see much public interest activity in enforcement. This may reflect our aggressive enforcement program. It also may be that the Sierra Club involvement in 1985 in development of the enforcement program under which we operate has caused this lull.

SHER: Analogous to the issues we have been discussing here are those involving Idaho's failure to establish an anti-degradation program that addressed non-point sources of pollution. This matter has been discussed without resolution by industry and regulatory agencies in the environmental community for the better part of the decade. The Sierra Club Legal Defense Fund brought suit following EPA disapproval of the state water quality standards. Suddenly, discussions among the various groups grew serious and we never had an opportunity to litigate the case because it was settled expediently by new state legislation.

1. See Federal Water Polution Control Act, 33 U.S.C. § 1313(c)(2)(B), ELR STAT. FWPCA 030 (1989).

2. See 33 U.S.C. § 1314(1), ELR STAT. FWPCA 033 (1989)(codifying § 304(1) of the Federal Water Pollution Control Act as it relates to individual control strategies for toxic pollutants).

3. Federal Water Pollution Control Act Amendments of 1972. Pub. L. No. 92-500 § 2, 86 Stat. 816 (1972) (current version at FWPCA §§ 101-607. 33 U.S.C. 1251-1387, ELR STAT. FWPCA 001-068).

4. Testimony of Gov. Wendell R. Anderson of Minnesota, House Pub. Works Comm., Dec. 9, 1971, reprinted in 1 HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, 93rd Cong., 1st Sess., No. 93-1 at 452 (1973) (hereafter, "Leg. Hist.").

5. See FWPCA § 510, 33 U.S.C. § 1370, ELR STAT. FWPCA 064.

6. See FWPCA § 303d, 33 U.S.C. § 1313(d), ELR STAT. FWPCA 030.

7. See 40 C.F.R. Secs. 130.2 (defining waste loads and waste load allocations) - 130.7 (regarding TMDLs).

8. See FWPCA § 304(a)(2)(D), Pub. L. No. 92-500, 86 Stat. 816 (1972)(as codified in 33 U.S.C. § 1314(a)(2)(D) (1989)).

9. See Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1972).

10. Water Quality Planning and Management: Final Rule, 50 Fed. Reg. 1,774-01 (1985) (later codified at 40 C.F.R. § 130).

11. GAO, "Water Pollution: More EPA Action Needed to Improve the Quality of Heavily Polluted Waters," 20 (Jan. 1989).

12. Idaho Dept. of Health & Welfare, "Idaho Water Quality Status Report 1986, 17-18 (1986).

13. GAO Report, supra n. 11.

14. Id.

15. Id.

16. See FWPCA § 307, 33 U.S.C. § 1317, ELR STAT. FWPCA 034.

17. Idaho Dep't of Health & Welfare, Idaho Water Quality Status 61 (May 1975).

18. Remarks of Sen. Muskie (the bill's sponsor) during Senate debate on overriding President Nixon's veto, reprinted in 1 Legis. Hist., supra n. 4, at 122.

19. 841 F.2d 927 (9th Cir. 1988).

20. See FWPCA § 313, 33 U.S.C. § 1323, ELR STAT. FWPCA 047 (setting forth requirements for compliance with water pollution control standards at federal facilities).

21. See FWPCA § 208, 33 U.S.C. § 1288, ELR STAT. FWPCA 020 (area-wide waste treatment management for areas with substantial water quality problems).

22. See FWPCA § 305, 33 U.S.C. § 1315, ELR STAT. FWPCA 033 (setting forth required state reports to the EPA Administrator for transmittal to Congress).