Water quality developments

Has the quality of the nation's waters improved? The National Commission on Water Quality remarked in a controversial report that "in many areas of the country, the water is not only improving, but improving faster than some expected." In contrast, the Council on Environmental Quality (CEQ) reported that "water quality has not improved as rapidly as we had hoped." On the whole, one could realistically conclude that although water quality has improved in some areas, there remain substantial delays in fully implementing the 1972 amendments to the Federal Water Pollution Control Act.

The July 1977 deadline. With the enactment of the 1972 amendments, the Environmental Protection Agency (EPA) began issuing effluent limitation guidelines that define for each industry the pollution loads allowable under the standard for 1977 of "best practicable control technology" (BPT) and the 1983 standard of "best available technology economically achievable" (BAT). The guidelines are translated into individual permits for each discharger. As of March 1976, 67 percent of all industrial dischargers and 50 percent of all municipal dischargers had received permits, although not all of these permits conform with BPT guidelines. However, many dischargers will not meet the July 1977 deadline because of the number of legal challenges to the guidelines as well as other factors such as lack of time, and lack of sufficient EPA personnel to handle all permit requests. Moreover, about half of the municipal dischargers will be unable to meet the 1977 secondary treatment deadline, largely because of a lack of federal funding or financial inability to match available federal funds.

The EPA plans to use a flexible approach to deal with those dischargers who have acted in "good faith" in trying to meet the deadline but will be unable to do so. On a selective basis, EPA will issue discharge permits along with "enforcement compliance schedule letters," which state that EPA will not take enforcement action provided the discharger meets the pollution abatement compliance schedule specified in the letter.

Earlier in the year, EPA took the unusual step of allowing eight steel plants in Ohio's Mahoning Valley to meet effluent limitations that are less restrictive than the nationwide requirements applied to steel mills. The exemption of the Mahoning steel plants was granted because EPA believed that strict enforcement of national abatement regulations would cause "severe economic and employment disruptions"—a rationale illustrating the tradeoff between jobs and protection of the environment.

Toxic substances. Industrial discharges of toxic effluents made splashy headlines during the year. State officials in Virginia imposed a ban on commercial fishing along 100 miles of the James River when concentrations of kepone, a highly toxic pesticide, were discovered. Kepone had been manufactured by a chemical plant in Hopewell, Virginia' until mid-1975. After the Allied Chemical Company entered a no contest plea to charges of illegally discharging kepone and other chemical wastes into the river, the U.S. District Court fined it $13 million, the largest fine ever imposed in a criminal pollution case. Three civil suits filed against Allied on behalf of twenty former employees have been settled. Additional suits were filed by about a dozen other former employees. In addition, commercial fishermen who claim their livelihood has been ruined by the pollution bay filed suit against the company.

The discharge of chemicals into watercourses is a particularly serious matter if downstream communities use the river as a source of water supply. In 1975, EPA tested the drinking water of some eighty cities and found chemicals such as benzene, carbon tetrachloride, and chloroform (which has been shown to cause cancer in rats and mice). Responding to the Safe Drinking Water Act of 1974, which called for the establishment of national primary drinking water standards for all public water supply systems, EPA issued interim drinking water standards effective June 1977. The regulations set maximum contaminant levels for ten inorganic chemicals including arsenic, mercury, and lead, plus six organic pesticides. No standards have yet been set for organic chemicals, however, which are believed to result in the formation of chloroform by reacting with chlorine. As part of a settlement of a lawsuit brought against EPA by the Natural Resources Defense Council and other environmental groups, EPA is required to issue regulations to control the discharge of sixty-five chemicals before 1980. Final discharge standards for five highly toxic chemicals have already been issued.

The runoff problem. EPA has been criticized for directing most of its attention to "point source discharges"— those originating from an identifiable polluter—and neglecting "non-point source discharges," such as agricultural and urban land runoff, which more seriously affect the quality of the nation's waters. According to the CEQ, even if all discharges of municipal and industrial pollution were stopped, many streams would still be polluted as a result of discharges from runoff sources."

Section 208 of the amendments to the water pollution control act addresses these hard-to-manage problems. Since no other federal law, and few state laws, regulate or even address the runoff problem, the requirements of this section are especially important. However, effective control of non-point runoff is expensive and difficult, and to date, there has been little progress in implementing section 208. Many state and local agencies which must initiate section 208 plans fail to recognize the runoff problem. It is also unclear whether these agencies have financial and technical resources to deal with the non-point source pollution problem. Much more effort will have to be exerted by state and local agencies in the coming year if the November 1978 deadline for submitting the plans is to be met.

Outlook for 1977. Of continuing importance is the future of the proposed amendments to the water pollution control act which became a casualty of the congressional end-of-session logjam. The bill died because a House and Senate Conference committee was unable to agree upon amendments to section 404 of the act. This section has been controversial since a 1975 court decision interpreted the provision as expanding the dredge-and-fill jurisdiction of the Corps of Engineers to all "waters of United States," including wetlands. The initial response of the corps had been to oppose the expanded regulatory responsibility, but it later changed its view—an action which generally pleased the environmental groups. The House attempted to restrict the scope of section 404 by narrowing the definition of "navigable waters" to exclude all wetlands above the mean high water mark of rivers and ocean inlets. The Senate bill, on the other hand, would have reduced the corps' dredge-and-fill jurisdiction to traditionally navigable waters, but would have transferred to EPA and the states the authority to control dredge-and-fill activities in other waters covered by section 404. Unlike the defeat of the Clean Air Act amendments, the failure to pass the section 404 amendments is seen as a victory by environmental groups since the strong regulatory structure for protecting the nation's wetlands remains intact.

During the coming year, some observers expect the new administration to initiate a vigorous environmental protection program with emphasis on excess emissions or possibly effluent charges. On the legislative front, the House is expected to revive the water quality act amendments that failed to pass in 1976. On the administrative front, the major priorities will be compliance monitoring and enforcement of discharge permits, state and areawide water quality management planning, and construction grants for municipal wastewater treatment works. The year 1977 will be an interesting one to watch because it will be the year for testing the effectiveness of a statutory compliance deadline for cleaning up effluent discharges.