21 ELR 10528 | Environmental Law Reporter | copyright © 1991 | All rights reserved

The Regulation of Toxic Pollutants Under the Clean Water Act

Editors' Summary: The Clean Water Act is up for reauthorization this year and the regulation of toxic discharges will again be hotly debated. The Act employs a variety of approaches for addressing toxic pollution, including health-based standards, technology standards, receiving water quality standards, regulation of toxic hot spots, whole effluent toxicity testing, and biological criteria. This Article traces the development of each of these approaches and analyzes their shortcomings, which include scientific uncertainty, agency delays, and protracted litigation. The author concludes that Congress should end the agony and fix a timetable for the elimination of toxic discharges.

Mr. Houck is a Professor of Law at Tulane University in New Orleans, Louisiana. The assistance of Victoria McKinnon and Stephanie Payne, Tulane Law School Class of 1991, in the preparation of this Article is acknowledged with gratitude.

[21 ELR 10528]

I. Introduction

The Clean Water Act¹ prohibits the discharge of toxics "in toxic amounts."² Therein lies its flaw. It presumes that we are able to determine what "toxic amounts" are, and to act on that knowledge in the rare event we can make the call. Neither assumption is correct. In fact, after 19 years of struggle, the most effective abatement of toxic pollution has been achieved through technology standards that are not predicated on toxicity at all.

We are now engaged in a renewed effort to address toxic pollution through a variety of Clean Water Act provisions. What was intended to be the Act's major thrust, health-based standards, tripped over its own presumptions and has produced nothing since 1976. What emerged as the Act's major thrust, technology-based standards, produced mixed results and has, for the moment, run its course. A third approach, based on receiving water quality standards, returns us to the state-by-state, discharge-by-discharge analyses that defeated water pollution control efforts prior to 1972 and threaten to do so again. A related approach, based on "hot spots" of toxic pollution, insists that it all be done more quickly. Yet another program, based on whole-effluent testing, has the virtue of relative simplicity … and the limitations of relative simplicity. A final program, which for the moment exhausts the possibilities for new means of regulation, requires field testing of receiving waters and their biota.

The one silver lining in the "multiple warhead" nature of the Clean Water Act's approaches to toxic pollution is that there is at least the possibility that if one provision misses, another could well land. With the exception of the Act's health-based standards, these provisions are complementary to each other, and mandatory. By their very cumulation, they have also had the effect of encouraging industry to reduce toxic discharges if only to avoid the burden of compliance, and the specter of an occasional, unwelcome new requirement. Perhaps it is inevitable in a free-market economy that pollution control operate so indirectly; certainly the desire to avoid the procedures of the National Environmental Policy Act³ and the Resources Conservation and Recovery Act⁴ has stimulated reductions in environmental impacts and waste production. Still, something recoils at the idea of reducing toxic pollution by the sheer weight of the approval process. One longs for a better way.

This Article describes the development of water toxic programs into an ever more varied, costly, complex, and unpredictable set of requirements … with more on the way. It concludes that, where the intentional discharge of [21 ELR 10529] toxic compounds into public waterways is concerned, it is in everyone's interest to end the indirection and to set up a schedule for their elimination.

II. Water Quality Standards: The Federal Water Pollution Control Acts

Those who cannot remember the past are condemned to repeat it.⁵

The most beguiling aspect of a water pollution control program based on receiving water quality was, and is, its appearance of reasonableness. Starting in 1948, states were encouraged, and then required, to identify the uses they wished to make of particular waters, to establish water quality criteria that supported these uses, and, should the waters fall below standard, to require the pollution sources to remedy the problem.⁶ No special attention was given to toxins, which in the early decades of pollution control were barely identified. All pollution would be abated alike.

From an economic standpoint, this approach wasted nothing; we expended only those resources on pollution control that were necessary to achieve the desired use. From a scientific standpoint, the decisions were essentially objective, based on measurable indicators and replicable biological effects. From the standpoint of a federalist nation, it preserved the authority of states to control their economic and environmental destinies. The concept was, indeed, so attractive that it took decades to appreciate how thoroughly it failed. Like the equally beguiling concepts of Esperanto and Utopia, it simply ran into reality.

Reality intruded in several ways. By the designation of "uses," states could vie with each other for new development by merely changing the labels on their waterways.⁷ By enforcement mechanisms so cumbersome as to defy conclusion, cleanup could be infinitely postponed.⁸ But the most serious dose of reality was that, for virtually every determination in the process, we were asking more of science than science could deliver.

A. The Science and Not-So-Science of Water Quality Standards

Imagine, for the moment, a receiving water with a designated use of "fishing," or "contact recreation." We are now called on to set water quality criteria, limits on every physical and chemical property of this water necessary to support this use.⁹ For any one pollutant, in a range of hundreds, we may have a handful of studies documenting effects on bivalves in moderately saline waters, sublethal effects on tadpoles, or uptake by spartina angiflora.¹⁰ For toxic pollutants, from a range of hundreds more, we may have a few studies of acute effects on laboratory species at high doses, a test of something (if we are fortunate) for chronic effects, and little beyond.¹¹ Sublethal effects; reproductive, cumulative, and synergistic effects, and impacts on other organisms will require extrapolations.¹² As for human impacts, we may perhaps find something about the rates of dermal absorption and some data on the effects of airborne workplace exposure.¹³ We will be able to estimate the amount of contaminated fish an average family will eat, less reliably the fish consumption of a coastal family, less so a subsistence fisherman.¹⁴ At this level, already, the hard [21 ELR 10530] evidence is thinning and the guesswork has begun. At this level, too, dissecting a water column into "acceptable" components of arsenic, mercury, and polychlorinated biphenols (PCBs), we begin to appreciate the awesome hubris of the exercise — that a living water system can be so dissected and that we can ever, with any confidence, pick its numbers.

We have, however, only begun. We are next required to determine the actual water quality profile of those same waters, indeed, of every one in the United States. For smaller streams and upland tributaries, the variations in flows, sediments, temperature, and oxygen will be enormous.¹⁵ For larger waters, including those most important to commerce and industry, the samples will still vary with rainfall, wind, and the location of the monitors; monthly samples of water quality in Lake Pontchartrain, Louisiana, for example, one of the largest lakes on the continent, show extraordinary variations in fecal coliforms and toxic metals (the only pollutants for which regular test data are available).¹⁶ To be sure, we can profile these waters by averages, and we can estimate, by trends, the progress of our pollution control efforts.¹⁷ But the sophistication, and costs, of a monitoring program capable of detecting exceedances of water quality standards at any one time for all measurable pollutants for all of the nations waters are formidable and, even today, largely beyond our reach.¹⁸

And we are not yet done. The next step is to predict the impact of any proposed discharge on the receiving waters, to ensure that it will not degrade the waters below the designated criteria. These criteria may be expressed as numerical concentrations, such as five parts per million of dissolved oxygen,¹⁹ or, as "narrative" standards, such as avoiding "unreasonable"harm to aquatic life.²⁰ On the latter question, we confront such uncertainties — in addition to the now-familiar questions of how much of each pollutant a particular mollusk can endure — as the fate of these pollutants in the water column, their transport, adherence to sediments, oxidation, recombination, bioavailability, and accumulation up the food chain.²¹ Although these questions have engaged the best efforts of biologists and graduate students for the past 30 years, few can be answered with comfort.²² To determine whether the numerical standards will be violated, we need to make assumptions about upstream flows, upstream water quality, and zones of "mixing" at the point of discharge beyond which the pollutants will be diluted to lawful levels.²³ These assumptions, simplistically linear,²⁴ [21 ELR 10531] are often confronted by embarrassing differences between the predictions of models, themselves widely variable,²⁵ and the results of actual monitoring.²⁶ Even today, states operating in good faith from different assumptions arrive at dramatically inconsistent permitting decisions.²⁷

Whether or not there are new sources of discharge to be evaluated, additional uncertainties must be faced when it is discovered — often, even today, by means no more sophisticated than an unusual sheen, a noxious odor, or reports of dead fish — that the water is below standard. It is now a detective story of finding the cause. In some instances where a pollutant is readily identifiable (e.g. an oil slick) and issues from but one source, the cause may be obvious. In the real world, however, the difficulties in pinpointing the cause are exactly those that defeated the use of common law principles to abate water pollution and gave rise to regulatory programs: no one could prove who did it.²⁸ For example, in 1990 Louisiana completed a one-month hearing,²⁹ following a one-year study,³⁰ following a two-year study,³¹ to determine whether excessive turbidity in Lake Pontchartrain was caused by a single industry that, by volume, contributed 95 percent of the Lake's inputs of total suspended solids.³² Attributing water pollution to a source with sufficient precision to require abatement against a discharger with any ability to put the matter to proof — as with every preceding step in the chain of a receiving water-based program — is easily said, and rarely done.

Lastly, when a water is determined to be below water quality from a multiplicity of sources both point and nonpoint — i.e. as in real life³³ … and as nearly one-third of the nation's waters so remain after three decades of efforts at pollution control³⁴ — regulators face the unhappy task of making "waste load" allocations among the various sources. This exercise in finger-pointing is so laborious, psychologically unpleasant, and political that it, too, has been honored in the breach.³⁵ Indeed, although called for in the Clean Water Act since 1965, it is difficult to find even isolated examples of successful abatement of pollution by waste load allocations.³⁶

By 1970, after more than 20 years of federal prompting, assisting, and funding, only half the states had federally approved water quality standards covering even the most rudimentary pollutants.³⁷ Toxic substances were regulated, where they were regulated at all, by narrative standards prohibiting discharges that "unreasonably" injured aquatic resources.³⁸ From that point, implementation all but disappeared. Few states even had a method for determining the water quality impacts of proposed discharges.³⁹ Polluters were not identified, were not capable of being identified, were not subject to rational "allocations" when identified, and water quality continued to decline.⁴⁰ All of which prompted Congress to make its historic shift from water quality standards to an entirely new approach.

B. Water Quality Standards Rejected

What is remarkable about the Federal Water Pollution Control Act Amendments of 1972 is how thoroughly they were considered, how well informed Congress was about the failures of the water quality standards, and how united and emphatic Congress was in rejecting them as a basis for upgrading the nation's waters. Here is Sen. Baker [R-Tenn.]:

The essential shift of policy contained in this bill is away from the concept of ambient quality and toward the concept of effluent controls. [W]e are recognizing for the first time that there is not a readily definable linear relationship between given effluent discharges and the quality of the receiving waters.⁴¹

Here are Reps. Abzug [D-N.Y.] and Rangel [D-N.Y.]:

We have seen a great deal of evidence indicating that this water quality standards system of regulation assumes more knowledge about our complex ecosystem than we actually have. The numerical criteria themselves are [21 ELR 10532] often largely arbitrary and serve mainly to fool the public into thinking everything is "safe." Also the history of our water pollution control program suggests that State and Federal governments will continue to founder on the staggering complexity of this control system, which requires working mathematically back from the permitted pollution levels in a waterway to the effluent limitations at the point source needed to achieve them.⁴²

Sen. Cooper [R-Ky.]:

Until now and under the 1965 act … [t]he States have been called upon to classify their streams and waters for agriculture use, industrial use, municipal water supply, fish and wildlife, and recreation uses. Then, usually with the consideration of the "assimilative capacity of the receiving waters and with the determination of an appropriate "mixing zone," an attempt was to be made to assign the remaining pollution or diluted pollution to sources which were considered to be responsible for that pollution. This was and isan inherently difficult procedure, and under the 1965 act has been a discouragingly slow process.⁴³

Sen. Buckley [C-N.Y.]:

Of course, the bill itself has abandoned the attempt, as an ultimate goal, of drawing a causal connection between the discharge of pollutants and the degradation of our streams. In effect, we are saying we know so little about the ultimate consequences of injecting new matter into water that it involves a presumption of pollution, and the way to insure ourselves against pollution is through the control and ultimate elimination of the discharge of pollutants.⁴⁴

Rep. Vanik [D-Ohio]:

[D]ue to the pressures of powerful economic interests, the States do not establish meaningful quality levels and create water "zones" — some good, but mostly bad.⁴⁵

Rep. Harrington [D-Mass.]:

One of the most critical problems inherent in legislating water pollution controls is that the standards will be so haphazard that workers will be pushed out of jobs by industries moving from State to State in search of less strict pollution standards…. We must establish national effluent limitations to prevent industrial "shopping" and we must establish an equitable system of assistance to those workers and communities affected by plant closures due to environmental regulations.⁴⁶

The Senate Conferees:

The Committee adopted this substantial change because of the great difficulty associated with establishing reliable and enforceable precise effluent limitations on the basis of a given stream quality. Water quality standards, in addition to their deficiencies in relying on the assimilative capacity of receiving waters, often cannot be translated into effluent limitations — defendable in court tests, because of the imprecision of models for water quality and the effects of effluents in most waters.

Under this Act the basis of pollution prevention and elimination will be the application of effluent limitations. Water quality will be a measure of program effectiveness and performance, not a means of elimination and enforcement.⁴⁷

These findings of Congress were no accident. They were the product of nearly two years of hearing and debate. They met threats that a new strategy based on technology standards would chase industry to other countries,⁴⁸ and opposition from the prestigious National Water Commission, which called this "the imputation of an abstract value to an abstract concept of water purity."⁴⁹ The Commission was, of course, correct. The shift in approach was more than mechanical; it was ideological.⁵⁰ The "use of any river, lake, stream or ocean as a waste treatment system" was, henceforth, "unacceptable."⁵¹ The Act's first stated goal was that the discharge of pollutants would be "eliminated": zero discharge.⁵²

Those with a more utilitarian view of the world (and an apparently boundless faith in science) have labeled this view "treatment for treatment's sake," and have fought a rear-guard action ever since to contain it.⁵³ Indeed, they were able to secure the retention of a water quality standards program in the 1972 Amendments themselves, expressly limited, however, to a supporting role of upgrading water quality where technology standards — blind to impacts on receiving waters — did not suffice.⁵⁴ They were also able [21 ELR 10533] to reassert the "primary responsibilities" of the states in attaining water quality,⁵⁵ whatever that meant in the context of this new EPA-dominated process.⁵⁶ The Act contained its contradictions, and was no model of clarity. But it was clear to all that water quality standards had not worked, and why, and that they were to be sidelined.

No one mistook this message. It was read by commentators with virtually unanimous approval.⁵⁷ It was interpreted, favorably, by courts up to and including the Supreme Court⁵⁸ to uphold stringent compliance requirements⁵⁹ and to defeat a number of industry arguments for standards, variances, and other interpretations of the Act based on receiving water quality.⁶⁰ Most importantly, it was read as written by EPA, which now had to set about the massive tasks of developing technology standards for industry, and separate, health-based standards for a burgeoning new threat — toxic pollutants.

III. Health-Based Standards

[A] most troubling characteristic of toxic substances is how little they are understood by scientists. New discoveries about their nature and effect are made constantly, but existing knowledge seems inadequate to measure their full danger.⁶¹

There can be no doubt that Congress was serious about toxic discharges when it overhauled the nation's water pollution control program in 1972.⁶² Neither technology standards nor water quality standards would be sufficient. Whatever gains these programs produced, we would also look directly at toxicity itself, and abate.

A. Health Standards and the Limits of Science

Section 307 of the Federal Water Pollution Control Act Amendments was the vehicle.⁶³ Here was a provision with teeth. It adopted the broadest definition of toxicity.⁶⁴ It mandated an expedited timetable for listing what was expected to be a great number of pollutants (90 days), for promulgation of final standards (180 days), and for industry compliance (one year).⁶⁵ And it gave EPA every signal to err on the side of environmental protection by directing that the standards be set low enough to provide an "ample margin of safety" for any potentially affected organisms.⁶⁶ A stronger set of requirements would be hard to imagine.

The early, and the only, cases to interpret these requirements further strengthened EPA's hand in regulating toxic discharges under § 307. In Environmental Defense Fund v. EPA, the U.S. Court of Appeals for the District of Columbia upheld EPA's zero discharge standards for polychlorinated biphenyls (PCBs), including recently developed, less-chlorinated PCBs about which EPA had very little test data of any kind.⁶⁷ In an opinion that stressed the uncertainty of science ("[a]s a practical matter, scientific knowledge about the effects of chemicals cannot keep pace with the ability of industrial laboratories to create new ones;" "[w]hat scientists know about the causes of cancer is how limited is their knowledge"),⁶⁸ the court approved EPA extrapolations from laboratory animals to humans,⁶⁹ and from more chlorinated PCBs to lesser forms.⁷⁰ The court recognized that the economic impacts of a zero standard could be "severe,"⁷¹ they "may jeopardize plants or whole industries and the jobs depending on them,"⁷² but Congress directed EPA to protect against "incompletely understood" dangers.⁷³ [21 ELR 10534] Since the evidence of the case was "at least suggestive of carcinogenicity,"⁷⁴ it was sufficient.

In a companion case decided the same day, Hercules, Inc. v. EPA,⁷⁵ the court upheld § 307 standards for the chlorinated pesticides endrin and toxaphene that required reduction of the manufacturer discharges, in the case of Velsicol, from 2.5 to .005 pounds per day, a factor of 2,500.⁷⁶ The opinion approved a risk analysis method that relied on a test organism (the pinfish) not found in the watershed where the discharges took place⁷⁷ (the test organisms found in the watershed being apparently more resistant), that extrapolated long-term effects from short-term lethality by simply dividing the short-term lethal dose by 100⁷⁸ (raising the question, why not by 10, or by 1,000?), and that projected a "mixing zone" for discharges through a dilution factor of 300 for toxaphene,⁷⁹ and of 375 for endrin⁸⁰ (why not of 380?) — assumptions that, to say the least, are not self-explanatory. As for consideration of economics or technological "rationality" in the setting of these standards, EPA was not required to consider either one: "The meaning of the statute being clear, it is not this court's prerogative to impose conditions of feasibility."⁸¹ The science could be slender. The assumptions could be heavy-handed. The economic effects could be of any scale, and the technology nonexistent. In § 307, Congress had dealt EPA all of the cards. The table was set, one would think, for a massive and powerful set of regulations.

As it happened, however, § 307 had for all practical purposes expired by the time these opinions were written. EPA simply found itself with more power than it knew how to exercise. The science of toxicity was too rudimentary to allow it to set levels for all but the best documented and most celebrated toxins, e.g. PCBs, DDT, and endrin, for which the levels approached zero.⁸² Further, the looming, omnipresent factors of economic and technological feasibility could be neither included nor ignored.⁸³ The statute appeared to preclude them and, as a practical matter, if they were included, derivation of the resulting standard would be difficult to distinguish from standards set as best practicable technology and best available technology.⁸⁴ On the other hand, the prospects of requiring a technology that did not exist, or forcing an entire industry — pesticide manufacture, steel manufacture — to close, was unthinkable.⁸⁵ EPA was paralyzed.

Indeed, despite the accelerated timetables for listing toxic pollutants under § 307, EPA did not begin to move until it was sued by environmental organizations to begin the listing process.⁸⁶ The resulting proposal of nine toxic pollutants, excluding many of those explicitly identified by Congress as in immediate need of attention, was so meager as to draw a second lawsuit challenging the adequacy of the list and the criteria by which it had been derived,⁸⁷ criteria that required, inter alia, a "very serious" environmental threat,⁸⁸ a finding that regulation under other provisions of the Act was inappropriate,⁸⁹ and, in an apparent reversal of legal advice, consideration of economic and technological feasibility.⁹⁰ Once these few toxic pollutants were listed, however, the train toward standards began to roll and EPA was plunged, half-willingly, into formal adjudicatory hearings on its proposals that, in its view, so revealed the weakness of the science behind the proposals that they "could not be defended" nor even amended on the basis of "a preponderance of evidence adduced at the hearings."⁹¹ EPA abandoned the proposals, prompting a third suit to compel action on toxic standards … which changed everything.

B. Health Standards Abandoned

The settlement of NRDC v. Train set a new table for regulating toxic discharges under the Clean Water Act, and beyond.⁹² Environmentalists despaired of progress under § 307; industry feared the § 307's focus on individual pollutants, dozens of which might be found in any one waste stream and might be subject to new requirements at any time.⁹³ EPA offered to negotiate, and eventually agreed to evaluate 65 identified categories of toxins, since known as "priority pollutants" in 21 industrial categories, and to regulate them on the basis of "best available technology."⁹⁴ This compromise was incorporated into a settlement decree,⁹⁵ and subsequently into the Clean Water Act of 1977 [21 ELR 10535] as a new § 307(a)(1).⁹⁶ For the next 10 years, EPA would concentrate almost exclusively on developing BAT standards.

In a less heralded provision of the settlement, EPA further agreed to upgrade its water quality criteria by including new criteria, developed in the BAT evaluation process, for the priority pollutants.⁹⁷ EPA further agreed to establish more stringent effluent limitations where warranted by these new criteria,⁹⁸ a requirement of the Act since 1972⁹⁹ and one that, until recently, had as little effect since the NRDC v. Train settlement as it had previously.

EPA also agreed to proceed with § 307 health-based standards for at least some of the nine pollutants originally proposed.¹⁰⁰ Litigation over these standards led to the broadly permissive opinions in EDF and Hercules, at which point, however, no one was seeking further permission.

Nor is anyone likely to seek such permission today. For while these health-based provisions of the Clean Water Act have lain dormant since 1976, the virtually identical provisions of the Clean Air Act — on which § 307 was modelled — rose to furious heights and crashed.¹⁰¹ Section 112 of the Clean Air Act also requires regulation of toxics to provide an "ample margin of safety."¹⁰² Unable either to include considerations of costs and feasibility in the development of these standards, or as a practical matter to exclude them, EPA did neither … relying on its more discretionary authority under the Clean Air Act to pursue other pollution abatement options.¹⁰³

By the mid 1980s, with EPA's track record on air toxics every bit as meager as that on water toxics,¹⁰⁴ the issue came to a head over the regulation of a particularly well-documented and persistent toxin, vinyl chloride.¹⁰⁵ EPA's adopted standard had frankly considered the economic effects of its proposed control level. In one of the most innovative environmental law decisions from a circuit with a long history of innovation, Judge Bork, writing for the U.S. Court of Appeals for the District of Columbia, distinguished all prior precedent precluding considerations of cost from Clean Water Act toxic standards and from National Ambient Air Standards under the Clean Air Act,¹⁰⁶ and approached the questions of "costs"/"no costs" with Solomon-like pragmatism. What "ample margin of safety" meant was that EPA would set a threshold margin of safety based exclusively on health, but it could then adjust the standard for reasons of cost.¹⁰⁷ However satisfying to the judicial mind, there was no doubt about the message down the line. As one EPA official explained, on remand the Agency was going to arrive at a standard similar to the one it had the first time by "scaling back" its "most conservative assumptions" on the health threshold; but of course, he added, this would be done "in a scientifically credible manner."¹⁰⁸ In practice, health effects would be adjusted to an economically feasible level, as would science.¹⁰⁹

The unhappy fact is that, even today, decades past the health-based provisions of the Clean Air Act,¹¹⁰ Clean Water Act,¹¹¹ Toxic Substances Control Act (TSCA),¹¹² Safe Drinking Water Act (SDWA),¹¹³ Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA),¹¹⁴ Occupational Safety and Health Act (OSHA),¹¹⁵ and the more recent, analagous cleanup provisions of the Resources Recovery and Conservation Act (RCRA)¹¹⁶ and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),¹¹⁷ we are unable to make health-based decisions with any confidence. The literature on risk-benefit analysis — legal, scientific, and otherwise — fills libraries.¹¹⁸ Entire conferences are devoted to explaining its mysteries.¹¹⁹ The President's Council on Environmental Quality has published a detailed guide to risk analysis under several federal statutes, each of which differs from its neighbors in [21 ELR 10536] detail.¹²⁰ But the essential assumptions about (1) toxicity thresholds, (2) long-term and sublethal effects, (3) cumulative and synergistic effects, (4) dose-response relationships, (5) laboratory animal and human relationships (6) mixing zones, and (7) exposure pathways — to say nothing of (8) risk management decisions on acceptable mortality in the range of from 10<-4> to 10<-6> — remain studded with quasi-indigenous fish, trespassers eating sediments, extrapolated individuals pinned at fencelines and hyperventilating for 70 years, and arithmetic-appearing guesses in one direction for dilution factors and in another direction for chronic effects. The Hercules opinion provides a road map for the guesswork required for a single toxin from a single facility into a single waterway.¹²¹ The EPA decision on permitted levels of benzene under the Clean Air Act provides a recent capstone to the same exercise, a zenith of complexity.¹²²

The uncertainty of any standard based on science so uncertain has invited another abuse. The less objective the basis, the more susceptible the standard to political pressure. Early ambient air standards for ozone under the Clean Air Act, to be set with "an adequate margin of safety," were subsequently relaxed after a reinterpretation of the data and disturbing, if undisclosed, influence from the White House.¹²³ Similar influence appeared in setting ambient air standards for sulfur dioxide.¹²⁴ Subsequent decisions on, inter alia, the adequacy of cleanup standards for dioxin under CERCLA, on benzene under OSHA, on trichlorethylene under the SDWA, ethylene dibromide under FIFRA, and any number of toxins under TSCA have all shown the imprints of heavy White House, Office of Management and Budget, and industrial pressure.¹²⁵ Under the banner of "good science," standards were being set on the basis of factors that had less to do with human health than with constituency service and least-cost ideology. Through hearings, lawsuits, and reports in the general press, Congress was not unaware of the extent to which scientific uncertainty left these decisions vulnerable to politics.¹²⁶ Through a series of amendments, Congress began removing discretion from EPA and changing the basis for toxic regulation.

In 1990, Congress completed a 10-year labor of amending the Clean Air Act, in which additional regulation of toxic emissions was a crucial and contested element.¹²⁷ At the end of a long and bitter dispute over approaches to abate air toxins, Congress did what it had done 13 years earlier in the Clean Water Act: it opted for best available control technology and shelved the vinyl chloride approach, perhaps forever.¹²⁸ This shift, the relegation of health-based risk analysis to determining "residual risk,"¹²⁹ the opportunity for Congress to act first on any new proposed health-based standards,¹³⁰ and the requirement that a separate Risk Assessment and Management Commission report on the effectiveness of risk assessment¹³¹ were a statement.

Concurrently, EPA had arrived at a similar statement on its own initiative under RCRA. RCRA's 1984 Amendments required EPA to ban disposal of hazardous wastes unless they were pretreated to "substantially diminish the toxicity of the waste" so that "short-term and long-term threats to human health and the environment are minimized."¹³² The door was apparently open to a pollutant-by-pollutant risk analysis, setting health-based standards. Instead, EPA adopted a pretreatment requirement based on "best demonstrated available technology."¹³³ In approving EPA's approach, the U.S. Court of Appeals for the District of Columbia stated: "In sum, EPA's catalogue of the uncertainties inherent in the alternative approach using [health-based] screening levels supports the reasonableness of its reliance upon BDAT instead."¹³⁴

For better or for worse, we have shifted our faith from science to engineering.

IV. Technology-Based Standards

In 1972, Congress declared it to be a national policy to eliminate toxic pollutants in toxic amounts. [The Clean Water Act] … intends to make that objective a reality … [I]t says that the Congress really meant what it said in 1972.¹³⁵

[21 ELR 10537]

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 major categories of industry.¹³⁶ 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.¹³⁷ There is every indication, further, that despite the incessant prodding of Congress and generally strong encouragement from the courts, EPA's technology-based program topped out somewhere between best practicable technology (BPT) and best available technology (BAT)¹³⁸ and has since lost its momentum. Absent strong redirection from Congress or the courts, BAT is unlikely to achieve its intended goal.

A. An Ambitious Start

If Congress was serious about toxic pollution in 1972, it was downright offended by EPA's slow progress by 1977.¹³⁹ Fortunately, the NRDC settlement had pointed the way to a schedule for the establishment of standards for the discharge of listed toxics by listed industries based on "best available technology." Congress had its answer. Concerned, in the words of Sen. Baker, that "the toxic question must be dealt with quickly,"¹⁴⁰ Congress mandated that these standards be promulgated by mid-1984. Concerned that the "toxic" category excluded compounds that were carcinogenic and otherwise harmful,¹⁴¹ Congress enacted a new category of "nonconventional pollutants" for which BAT would be set on the same schedule.¹⁴² Short of setting the standards itself, Congress did the most it knew to do.

As did many within EPA. The development of technology standards was the most Herculean task ever imposed on an environmental agency. EPA had literally to master the economics, engineering, and technology of every industrial process in the most industrialized and fastest-growing economy in world history. It had to learn state-of-the-art and potential alternative technologies for each process. It had to be able to defend its technology-forcing conclusions against the most experienced engineers, economists, and lawyers money could buy. Every draft standard EPA proposed was subject to intense scrutiny, lobbying, and opposition from the affected industry and, within the limits of its resources, at least one organization.¹⁴³ Nearly every final standard was immediately taken to court.¹⁴⁴ Once in court, EPA did enjoy a range of favorable rulings that, inter alia, allowed it to proceed directly to standards without the cumbersome process of promulgating effluent guidelines,¹⁴⁵ to limit the evaluation of costs to "consideration factors,"¹⁴⁶ to ignore the absence of demonstrable water quality benefits,¹⁴⁷ to accept, in certain cases, significant numbers of predicted plant closures,¹⁴⁸ to accept technology based on studies as opposed to the operations of actual facilities,¹⁴⁹ [21 ELR 10538] to project technology based on treatment systems found separately, but not collectively, in even the best of plants,¹⁵⁰ and to require "zero discharge" where recycling of wastes was, although costly, achievable.¹⁵¹ Encouraged forward by the courts, buffeted backwards by industry, embarrassed by congressional hearings and stung by the criticisms of environmentalists, EPA struggled unevenly toward its 1984 deadline for toxic pollutants.

B. A Less Ambitious Conclusion

By early 1983, most of EPA's proposals for regulation of the priority pollutants of the consent decree industries had been developed in at least draft form. The transaction costs of the process, however, were already noticeable. The Director of EPA's Office of Water Regulations and Standards acknowledged that, for several of the high-volume toxic discharges, the Agency was extending compliance deadlines to 1988, but was also retreating from stringent BAT proposals in its earlier draft proposals and adopting, instead, more relaxed requirements equal to to no better than BPT.¹⁵² The deadline extensions were predicted by one organization to lead to an additional 100 million pounds of toxic discharges.¹⁵³ Assuming all deadlines were eventually to be met, however, the more serious erosion was in BAT. EPA had rejected its BAT proposals for the leather tanning industry, for example, because it found, in 1983, that its BAT proposals were not yet "demonstrated" or "economical."¹⁵⁴ In the final rule for petroleum refining, "new found data" and changes in flow models led EPA to abandon its proposed BAT that would have reduced toxic discharges by 52 percent through recycling and reuse of wastestreams.¹⁵⁵ Not surprisingly, the American Petroleum Institute indicated that it was "happy" with the petroleum final rule and was "keeping its fingers crossed" on legal challenges.¹⁵⁶

By far the most serious proposal, affecting facilities that routinely discharged virtually all of the 129 priority pollutants and many more, was the standard for the production of organic chemicals, plastics, and synthetic materials. Having proposed a BAT based on the lowest levels achievable by controls on each separate plant process, EPA then engaged in a "joint study" with the Chemical Manufacturing Association (CMA) and reversed its field, allowing the technology to be determined for combined wastes at the "end of the pipe," and to result in higher toxic levels based on biological treatment that was already prescribed as best practicable technology.¹⁵⁷ Acknowledging that toxics remained in the wastestream, a CMA spokesman explained that it "didn't matter" because "what matters is the concentration of the toxics as they enter the receiving water," and in "most cases" these would be at "acceptable levels"¹⁵⁸ … returning the problem of abatement to water quality standards.

The appeals of these standards for the organic chemicals, plastics, and synthetic fibers industries represent the climax of complexity and obstruction available to an affected industry: what might be called "best available lawyering." In a 90-page opinion written in separate parts by three Circuit judges, on briefs totaling more than 3,000 pages, a 9,000-page joint appendix, and a 600,000-page administrative record, the U.S. Court of Appeals for the Fifth Circuit disposed of more than 70 consolidated claims by the Chemical Manufacturers Association, several industries and several more industrial plants on both procedural and substantive grounds.¹⁵⁹ When the dust settled, EPA's BAT standards — which as noted above had already been greatly relaxed at CMA's urging — were in all major aspects upheld. A subsequent petition for certiorari to the Supreme Court by one industry, on grounds that a technology based on segregated wastestreams was unavailable, was denied.¹⁶⁰ On the other hand, even a saga so lengthy does not seem to reach conclusion and, on reconsideration, the Fifth Circuit remanded limits for 20 priority pollutants because EPA had failed to show the effectiveness of the in-plant treatment technologies on which it relied.¹⁶¹

Almost unnoticed in this furor is one of the most revealing aspects of the opinion, on one of the few issues raised by NRDC, a challenge to EPA's technology-based new source performance standards (NSPS). EPA had set NSPS at no better than BAT, rejecting evidence on the availability of both filtration and activated carbon detoxification methods as not yet "well-demonstrated."¹⁶² Further, EPA had apparently given no consideration to recycling technologies that were already adopted by 36 plants in the industry; indeed, 26 percent of the industry was already at zero discharge.¹⁶³ Holding that "recycling easily fits the definition of an available demonstrated technology," the court remanded for further consideration of the standard.¹⁶⁴

Stepping back from the NSPS at issue, however, a requirement applied only to new facilities, the question why a practice of zero discharge by more than one quarter of the industry does not nearly automatically lead to its adoption as BAT — for all of the existing petrochemical facilities lining the Mississippi River, the Houston Ship Canal, and other favored locations — stands unanswered. Clearly, by the end of a long and exhausting process, BAT had lost its bite. As one reviewer of the process concluded:

In the final BAT effluent limitations guidelines BAT often is the same as best practicable technology (BPT). [21 ELR 10539] Where the new BAT is more stringent than BPT, the difference is relatively small and potentially more effective technologies were rejected. On the other hand, some BPT standards in the new rules are based on control technologies too advanced to be considered "practicable" in 1972. It can be argued that EPA has coupled relatively tough BPT with relatively lenient BAT.¹⁶⁵

One emerges from this chapter on the control of toxic pollution by technology standards with mixed impressions. The United States has clearly performed a service to itself and to the industrialized world by arriving at bomb-proof, minimum-at-least level technology requirements for industrial discharges.¹⁶⁶ These standards will, equally clearly, lead to substantial toxic discharge reductions. It is also clear, however, that the standards in many industrial categories reflect a compromise far short of "best available technology," even the best available at the time they were promulgated, to say nothing of subsequent developments in source reduction and reuse. It is an astonishing but commonplace fact that when a BAT-limited industry is required to reduce x further — due to water quality, health, public relations, or other considerations — it finds the ability to do so.¹⁶⁷ In this regard, BAT appears to be more a problem of lead time and amortization of costs than a problem of engineering. BAT remains as driven by the most an industry will accept as by the most it can do.

This conclusion is reinforced by the equally disturbing fact that discharge standards have emerged unevenly, with a heavy "zero discharge" hand on such unfortunates as seafood canners¹⁶⁸ and placer mine operators,¹⁶⁹ and a remarkably blind eye to available closed-cycle systems for some of the nation'shighest-volume dischargers of broad-spectrum toxins.¹⁷⁰ The disparities in these standards reflect nothing more starkly than a disparity in clout. These disparities are amplified by the fact that, for the decade of the 1980s, EPA only worked with any intensity on that limited group of industries and that limited set of toxic compounds mandated by the 1976 decree.¹⁷¹ In 1987, with the end of this tunnel in sight, the question became what EPA should do next.

V. All Together Now: The Water Quality Act of 1987

In further criticism of the bill, [EPA Administrator], Thomas said that a provision to require states to identify waterways suffering from severe toxic pollution and to require dischargers in those areas to install control equipment beyond what was already required by EPA was "neither necessary nor desirable." Thomas said that the agency was already exercising its existing authority to stem cases of severe toxic water pollution.¹⁷²

94-0.¹⁷³

Against an Administration unwilling to spend and opposed to additional pollution control requirements, by the mid-1980s Congress was again turning to the challenge of upgrading the nation's waters. The apparent good news was that, in the main, we had "managed to hold our own" on water quality through existing Clean Water Act programs, with slightly more progress reported on individual water bodies than decline.¹⁷⁴ The bad news was that the continuing declines were substantial and, worse, that 14,000 stream miles, 638,000 acres of lakes, and 900 square miles of estuaries had "acute toxic problems."¹⁷⁵ The House Merchant and Fisheries Subcommittee took testimony documenting carcinogens in fish from the Great Lakes, Puget Sound, and the Hudson and Ohio Rivers, prompting the Chairman to conclude that "there is something very, very wrong with the environment."¹⁷⁶ A Greenpeace study of Boston Harbor reported the discharge of 300 pounds of toxics a day directly from industrial sources, and up to 1,000 pounds a day from indirect sources including industrial discharges into municipal sewer systems.¹⁷⁷ National media featured photographs of fish with eye tumors and cancerous bodies.¹⁷⁸ In the words of Sen. Chaffee [R-R.I.], a senate sponsor of the 1987 Act:

It is indeed ironic that we must now warn people against consuming fish caught in many areas cleansed of conventional pollutants but which are contaminated by toxic pollutants to the point that they pose a potential health threat to those who eat them.¹⁷⁹

If there was near-unanimity that more had to be done, however, there was no initial consensus on how. EPA, beginning in 1984, had launched a supplemental toxic pollution control strategy requiring states to perform chemical and biological testing of the effluent from major dischargers. [21 ELR 10540]¹⁸⁰ At the same time it was imposing this responsibility on the states, however, EPA was also proposing to weaken state water quality standards in ways that "deeply concerned" the Senate, setting no fixed standards for toxic contaminants and allowing for the degradation of existing high-quality waters.¹⁸¹ Combining these two initiatives, it seems clear that EPA was shifting whatever new efforts were needed to the states. The Senate also took testimony from EPA officials acknowledging that its struggle to enact technology standards had all but preempted its attention to water quality standards, and that the original consent decree categories had preempted its work on additional technology standards.¹⁸² On this front, EPA was doing what a court had ordered and not a great deal more.

Faced with this diversity of problems, the Senate bill proposed a two-prong attack requiring, for the first time, numerical water quality standards for toxic pollutants, and, conscious of the "historic ineffectiveness" of the water quality approach and of "significant gaps in knowledge" about "the relationship of pollutant loads to water quality" and "health effects,"¹⁸³ a new round of technology-based effluent guidelines.¹⁸⁴ The Senate Committee "affirmed" the "technology based approach established in 1972 as an immediate and effective method of achieving the goals of the set."¹⁸⁵

The House bill took a different tack, an accelerated review of state "hot spots" degraded by toxic pollution, with accelerated schedules for the identification of sources and control strategies.¹⁸⁶ The Conference Committee, in effect, cobbled these approaches together and emerged with a multiple new strategy based on: (a) the upgrade of technology standards;¹⁸⁷ (b) the upgrade of water quality standards with numerical criteria;¹⁸⁸ (c) the accelerated review of "hot spots" and development of control strategies;¹⁸⁹ and (d) the development of effluent testing and monitoring requirements.¹⁹⁰ Each of these approaches supplemented the other; each was mandatory. In their aggregate and on their separate tracks, they make up the complex and resource-intensive process that is toxic water pollution control today.

VI. Technology Standards Revisited

[T]he slow pace in which these regulations are promulgated continues to be frustrating.¹⁹¹

By the latter half of the 1980s, EPA's technology standards program was limited to grinding out guidelines for the remaining consent decree categories. No additional categories had been proposed. No additions to the list of regulated "priority pollutants" were proposed. No revisions were proposed to upgrade standards from those set, in some cases, 10 years before. Each of these shortcomings was becoming an embarrassment. An Office of Technology Assessment study of wastes in coastal waters identified industrial discharges as the source of 90 percent of the toxic pollution of the nation's estuaries, and a primary cause of their annual contamination.¹⁹² An EPA study of industrial wastes in domestic sewage systems found more than 7 million pounds of hazardous metal constituents and up to 132 million pounds of priority hazardous organic pollutants were discharged by industry into sewer systems along, despite technology-based pretreatment standards (equivalent to BAT), and another 138 million pounds of "nonpriority hazardous constituents (mostly organics)," few of which were regulated by categorical standards.¹⁹³ It was time for Congress to act … again.

The action this time was a new provision, § 304(m), directing EPA to publish a plan by February 1988 that fixed a schedule for "the annual review and revision" of its existing guidelines, identified unregulated industrial source categories, and set a schedule to issue standards for these previously unregulated sources by no later than February 1991.¹⁹⁴ As explained in the Senate Report, this section required guidelines for "any category" of sources discharging "significant amounts" of toxic pollutants.¹⁹⁵ "In this case," the Report continued, heading off what it obviously anticipated would be the area of slippage, "'significant amounts' does not require the Administration to make a determination of environmental harm; any non-trivial discharges from sources in a category must lead to effluent guidelines."¹⁹⁶ To Sen. Mitchell [D-Me.], this section [21 ELR 10541] spelled out "a specific process designed to control these toxic substances."¹⁹⁷

EPA apparently did not share the Senator's enthusiasm. Although its draft plan issued only six months beyond the congressional deadline,¹⁹⁸ a year and a half beyond the Agency had taken no further action, leading to the inevitable lawsuit¹⁹⁹ and, nearly two years past deadline, its final plan.²⁰⁰ The plan proposed to promulgate new guidelines for only five unregulated industrial categories;²⁰¹ worse, one of these five was already required by court order,²⁰² another by legislation,²⁰³ and two of the remaining three were proposed to be regulated only in part.²⁰⁴ The timetables for these guidelines, Congress' 1991 date notwithstanding, were extended to 1994.²⁰⁵ The plan showed equally limited enthusiasm for revisions of existing guidelines. It proposed no schedule for comprehensive review; instead, it proposed to review only three industrial categories,²⁰⁶ one of which was already subject to court order,²⁰⁷ and the other two (including one to which EPA had already been "committed")²⁰⁸ were extended to as late as 1995 (a "best estimate")²⁰⁹ It also offered "reviews" of three additional categories²¹⁰ — to be completed by no specified time — and "studies" of eight categories,²¹¹ also within no specified time. Plainly, EPA looked at the menu and balked. A court has since ordered the Agency forward.²¹² Whether the Agency will in fact move, and at what pace, remains to be seen.

Meanwhile, however, information developed by EPA in the § 304(m) process has served to illustrate the importance of additional toxic standards, and just how far short BAT fell. In its 1989 report to Congress on water quality, EPA estimated that nearly four fifths of all facilities discharging toxic or nonconventional pollutants, 59,338 of 74,525 sources, remained outside the coverage of federal BAT standards.²¹³ For even those categories that were BAT-regulated, EPA had failed to establish standards for some of the most toxic compounds.²¹⁴ In a memorandum to the Administration on the § 304(m) program, the Acting Assistant Administrator for Water concluded that:

Despite the progress made to date in reducing surface water pollution, it is clear that the unregulated categories are major sources of pollution and creators of environmental and human harm. The industry categories that have been examined in connection with the 304(m) response and the Domestic Sewage Study discharge tremendous quantities of toxic and other pollutants.²¹⁵

As for the adequacy of the guidelines for regulated categories:

Many of the original guidelines regulations are now close to 15 years old. Even before the enactment of section 304(m), the Clean Water Act provided that EPA is to annually review the adequacy of existing guidelines and update those that need improvement given advances in treatment technology. To date, EPA's record in this respect is dismal.²¹⁶

On EPA's own analysis, BAT standards for toxic discharges, already limited in scope, are becoming obsolete.

Informed by these data and conclusions, armed with a "specifically directed" process, we stand on the verge of a massive new round of BAT development, reexamining the original 24 categories, adding new lists of priority pollutants, and expanding into dozens of new industrial categories that discharge, in their own rights, hundreds of millions of pounds of toxins a year.²¹⁷ The prospect is daunting. On the other hand, for all of its limitations, BAT under the Clean Water Act has probably been the most effective pollution control program in the world in terms of producing identifiable abatement — short of outright bans — if only because alternative programs have proven equally burdensome and so much less effective.²¹⁸ At the very least, the [21 ELR 10542] BAT process has proven, against vigorous opposition and the most dire predictions, that pollution could in fact be reduced without significant losses in employment, competitiveness, control, or industrial growth.²¹⁹

The central tenet of BAT, however, was that it remain dynamic. Through its stimulation of "a series of progressively more demanding technology-based standards," new BATs would constantly ratchet down on permitted levels until, within our lifetimes, the "zero discharge" goals of the Clean Water Act were achieved.²²⁰ A technology standard was not a fixed "floor" on which the states would then "build"; it was the engine that would eliminate toxic pollution. Unfortunately, it too has run into reality.

The ability of the BAT process to operate as envisioned would be hindered, in the best of circumstances, by money and expertise. It has been further limited by narrowing the scope of alternatives examined to exclude processes that could greatly reduce, and in some cases eliminate toxic discharges²²¹ and by interpreting "demonstrated" to mean something close to "no more costly."²²² It has been fundamentally limited, across the board, by EPA appointees who neither believed the goal of zero discharge nor believed in a continuing federal role for water pollution control.²²³ To the Office of Management and Budget, which has in effect become co-Administrator of EPA, additional pollution controls are prima facie costly and objectionable.²²⁴ As early as 1983, EPA's Director for Water Standards justified the relaxation of BAT levels for several major industries by explaining that, since "the technology is available" (although not to be required by EPA) the "states can require it to protect water quality."²²⁵ In EPA's mind, too, BAT was going to become the handmaiden to water quality standards.

Congress faces a major choice as to whether to force its BAT process. We will most likely see a new NRDC consent decree, leading to new lists of industrial categories and additional priority pollutants, and new deadlines for technology standards.²²⁶ The studies, administrative lobbying and litigation, and their associated human and economic costs will again be enormous, as will the inevitable decades of delay. On the other hand, its critics notwithstanding,²²⁷ this is the only process that has worked,²²⁸ save one, the unthinkable, to which we will return. Next, however, we must examine the remaining components of the ever-more-elaborate toxic water pollution control program.

VII. Water Quality Standards Revisited

Before the 1972 law, you'd get into these long, long debates with dischargers who would say "No, let me prove to you this isn't a problem." So I guess my feeling is that having established a very strong nationwide enforcement structure, we have got a tool that will allow us not to get lost in endless scientific debates.

Secondly, we've learned something in the last 20 years. Our monitoring technology is much better than it was 20 years ago…. So we've got a lot of information we didn't have 20 years ago. So the combination of the much better information and the much better permitting and enforcement base means that I think we have a chance we didn't have then.²²⁹

With these brave words, EPA heralded a return to a water quality standards based program. It is difficult to tell from the language used ("I think we have a chance") whether EPA's attitude was really one of optimism, or of fatigue, or, perhaps, of putting the best face it could on marching orders to embrace a failed system. To be sure, monitoring technology had advanced in the previous decade. Also to be sure, EPA had been carrying the burden of water pollution abatement for the previous 15 years and a certain institutional weariness, and an impulse to shift that burden back to the states, could be understood. At the same time, for reasons that did not appear at all directed toward pollution abatement, the administration had been trying strenuously to shed its more aggressive pollution control programs, wholesale, since 1981.²³⁰ What is known is that Congress, in its drive to achieve toxic pollution reduction in a "post-BAT" era, turned to, inter alia, revised water quality standards.

More specifically, in § 303(c)(2)(B) of the 1987 Water Quality Act Congress directed that:

Each state shall adopt criteria for all toxic pollutants listed pursuant to section 307(a)(1) of this Act for which criteria have been published under section 304(a), the discharge or presence of which in the affected waters could reasonably be expected to interfere with those [21 ELR 10543] designated uses adopted by the State, as necessary to support such designated uses. Such criteria shall be specific numerical criteria for such toxic pollutants.²³¹

The key to this amendment was the requirement of numerical standards. Until 1987, the adoption of toxic standards had been largely at state discretion, and the resulting standards were often of the nearly unusable, "no unreasonable impact," narrative variety.²³² To appreciate the significance of the amendment, consider for the moment how a state might be expected to measure,or a discharger to report, compliance with such a requirement. Numbers could be a different story.

A. The Criteria

EPA implemented § 303(c)(2)(B) by offering states three options for the adoption of numerical criteria for toxic pollutants. A state could develop criteria based on its own studies, risk analysis, and desired level of protection (e.g., 10 <-6>).²³³ It could adopt EPA's water quality criteria from the Gold Book and guidance documents.²³⁴ Or, it could adopt "indicator parameters" for certain pollutants, under limited conditions, by relating the pollutant to other regulated discharges.²³⁵ Thus began a lengthy process for the adoption and approval of state toxic criteria that, despite a congressional deadline of no more than three years,²³⁶ continues today.

In April 1990, EPA published a summary of state compliance with the new criteria requirement.²³⁷ Putting events in their best light, EPA described "dramatic progress" by "some" states in adopting criteria.²³⁸ The "average number" of toxic criteria for freshwater aquatic life uses rose from 10 to 30 per state from 1986, and the total number of states with at least "some" freshwater aquatic life criteria for toxics rose from 33 to 45.²³⁹ Reading the same number backwards, three years after the 1987 Amendments at least 12 states and territories had no aquatic life criteria for priority pollutants at all.²⁴⁰ At the same time, the most recent national water quality survey revealed that one third of the nation's waters showed "elevated levels of toxics," with 47 states reporting 586 fishing "advisories" and 135 outright bans.²⁴¹ Several states had also posted swimming bans and closed water supplies.²⁴² Faced with this somewhat dramatic lack of progress, EPA announced that it was proposing a rule to impose its own toxic criteria for states and for pollutants without them.²⁴³ This proposal has since gone to OMB where its timing and fate are completely unpredictable … except to predict that if and when a final rule does emerge, it will not be soon.²⁴⁴

The most striking feature of the toxic criteria that have been adopted — aside from the delay in their adoption — is their variation from state to state. Of the 45 states with reported aquatic life criteria, apparently 13 accepted numbers from EPA's guidance documents but at least 32 have developed numbers of their own.²⁴⁵ Each of these developments [21 ELR 10544] is a replay of the health-based standard-setting process seen earlier in Hercules and EDF, based on varying assumptions of toxicity, exposure paths, and "acceptable" exposure levels. Not surprisingly perhaps, the resulting criteria may differ by more than 1,000 times. By way of example, a recent comparison of criteria for some of the most toxic chlorinated hydrocarbons in states bordering the Great Lakes shows:²⁴⁶

Chemical	U.S.EPA	IN	MI	MN	NY	PA	OH	WI
Dioxin (2,3,7,8-
TCDD) ppq	0.013	0.1	0.14	—	—	0.01	0.14	0.03
PCBs ppq	79.0	790	20	14	1,000	80.0	790	150
DDT ppt	0.59	0.24	0.23	0.11	10	0.02	0.24	0.043
Chlordane
ppt	0.46	0.48	0.52	0.073	100	—	0.48	1.3
Dieldrin ppt	71	760	31	6.5	900	70	760	170

New York's chlordane criterion exceeds that of Michigan by 200 times; it is 1,500 times more lenient than that of Minnesota.

In retrospect, by not preempting the establishment of toxic standards and clinging to the vestiges of state responsibility for toxic water pollution control, Congress was inviting differences in state criteria that will have marked impacts not only on human health but on choices of industrial location … differences that gave rise to the Clean Water Act many years ago.

B. The Application Factors

Were the just-noted differences all that varied from state to state in the water quality standard process, Congress might cure the problem by the adoption of uniform toxic standards. Unfortunately, the criteria are but an early step in a pavane that is danced in separate ways by each of the 50 states in arriving at permit numbers for toxic discharges.

From the early 1970s, nearly every commentator on this process has emphasized the weakness of its underlying science and the extent to which we simply do not know what we are doing. In the words of one researcher in 1977:

Ignorance is the heart of the matter. [Pollution control] planning is filled with assumptions, guesswork, and oversimplifications because planners don't know nearly enough about water and the way it responds to wastelands.²⁴⁷

Ten years later, a 1987 Office of Technology Assessment report concluded:

First, it is questionable whether EPA has sufficient resources to continue to develop and update the Federal water quality criteria, or to evaluate water quality standards that are developed by States. Moreover, a large increase in compliance monitoring and enforcement burdens would also be anticipated. Even if resources were sufficient, a number of major technical obstacles would need to be overcome. Only limited data are available on ambient pollutant concentrations in receiving waters, variability in these concentrations, and the fate of these pollutants and their impacts on indigenous organisms. In addition, our ability to monitor water quality in relation to potential environmental or human impacts is relatively primitive.²⁴⁸

Indeed, a 1984 international survey by EPA of "state needs" in the NPDES process reached the following conclusions:²⁴⁹

In general, states lack knowledge of how to do realistic modeling of a pollutant's concentration and fate in a water body.²⁵⁰

In particular states need water quality models for toxic organics and non-conventional pollutants.²⁵¹

States need water quality models for a variety of geographic situations, especially for estuaries.²⁵²

States often lack data on the water quality of a given site that they need for water quality impact analysis or modeling.²⁵³

States often lack the data necessary to determine the design discharge of the receiving water, especially for small streams.²⁵⁴

States may have difficulty developing water quality-based effluent limitations in the absence of a final wasteload allocation study.²⁵⁵

States have difficulty in determining wasteload allocations for pollutants which are already in violation of water quality standards.²⁵⁶

These conclusions simply render the flavor. The survey itself noted more than 30 similar "difficulties."

EPA has attempted to plug these information and process gaps with an ever increasing number of guidance documents and studies designed to aid states in the essential next step of a water quality-based program, relating discharge levels to water quality.²⁵⁷ While the detail of this guidance is [21 ELR 10545] beyond this study, an understanding of the basics of this next step is critical to understanding how far states may depart from each other, and from EPA, in their conclusions on "acceptable" toxic discharge.

Reduced to its bones, the states must calculate the effect of a proposed discharge volume with a given concentration of a toxic pollutant on a river with its own flow rate and its own background levels of that same pollutant. Immediately, we see two variables. The first is that level of flow chosen for the receiving river; average flows will dilute a great deal more than average low flows, which in turn dilute far more than historic low flows. The second is the assumption made for background levels. If backgrounds for this pollutant are presumed to be at zero — an unlikely circumstance for waters with multiple dischargers upstream — then a great deal more pollutant can be discharged without a predicted impact on water quality criteria than if the background levels were calculated as already high. No other variables or shortcomings in water quality modeling need be introduced into this analysis to appreciate that, by two very simple assumptions about water quantity and quality, states, in good faith or no, may arrive at widely varying results.

We must now add the wildest card of all: mixing zones. The theory of a mixing zone is the theory of the pre-1972 water acts, that receiving waters will dilute pollution to "acceptable" levels. Its applicability to toxic pollutants, particularly ones that accumulate in sediments and in aquatic biota and increase in potency as these biota are ingested by larger predators, has been the subject of running criticism since at least 1972.²⁵⁸ Its use has been defended by at least one EPA official as necessary to avoid "zero discharge" consequences at individual outfalls,²⁵⁹ and as providing safe "zones of passage" for fish and aquatic life²⁶⁰ … zones that must have occurred to someone, are not available to sediments and benthic organisms and that may not be readily perceivable to schools of fish passing through. Whatever their theoretical underpinnings, EPA has found it "inappropriate" to prohibit mixing zones through its own regulations, and found the question to be "more appropriately addressed in the state water quality standards adoption process."²⁶¹ The buck thus passed, EPA acknowledges that state procedures "can vary considerably from one state to another."²⁶²

Just how "considerably" state mixing zones may differ is revealed in an EPA Technical Support Document for Water Quality-Based Toxics Control.²⁶³ A table listing "state-by-state mixing zone dimensions" shows formulae varying from one-fourth to three-fourths of the cross sectional areas of receiving streams, from 10 to 33 percent of their volume.²⁶⁴ With regard to toxic pollutants, these differences may be reduced, but not eliminated, by the adoption of smaller mixing zones called "zones of initial dilution," or ZIDs.²⁶⁵ In Louisiana, for example, while a mixing zone is calculated as 10 percent of stream flow, a ZID is calculated as one percent.²⁶⁶ Under either approach, the concentration of the pollutant may not exceed the state water criterion beyond the mixing zone or ZID.²⁶⁷

It is now time to put these variables together in a determination of permissible concentrations of a toxic compound in a proposed discharge. For this purpose, we need to make assumptions concerning the receiving water flow, its water quality, and a mixing zone. An illustrative formula is:²⁶⁸

C[E] = C[R] (Q[M] + Q[E]) - (C[U] X Q[M]) / Q[E]

In this formula:

C[E] = the effluent concentration to be determined

Q[M] = the mixing zone flow, in this case, since the pollutant is toxic, a ZID

Q[E] = the discharge effluent flow

C[U] = the upstream concentration

C[R] = the state receiving water criterion for the pollutant, in this case a chronic toxicity level

We may now assume the following values for these variables:

Q[M] = 1,110 cubic feet per second, based on critical low flow of 111,000 cfs, and a ZID of one percent, or .01.

Q[E] = 1100 cfs

C[U] = 2.0 parts per billion

C[R] = 4.0 ppb

These values produce a C[E], the all-important permitted discharge concentration, of 24 ppb.

If we change our assumption on low flow to calculate Q[M], however, the permitted concentration may change significantly. While Louisiana uses critical low flow, the lowest recorded flow over an extended period, Virginia uses a variation of mean low flow, an average of lows over time.²⁶⁹ Were a mean low flow of 167,000 cfs assumed, C[E] rises from 24 to 34 ppb.

C[E] changes as well with the factor used for upstream water quality. In the absence of sampling data on the upstream [21 ELR 10546] concentration of the pollutant, C[U], the permit writer may assume an upstream concentration of zero.²⁷⁰ Using zero rather than 2.0 ppb for C[U] in the example raises C[E] from 24 to 44 ppb.

C[E] also changes with the dilution factor chosen for the mixing zone. If we use a factor of 2 percent instead of 1 percent for the ZID, C[E] rises from 24 to 44 ppb.

It bears emphasis here that there is no one correct scientific assumption for low flow or mixing concentration. Couched behind their scientific and mathematical trappings, these assumptions simply reflect a state's priorities for economic development and environmental health. They are political calls.

The differences in outcome are more than hypothetical. A recent study of these differing dilution factors for states in the Great Lakes region focused on a single, sample pollutant, PCBs.²⁷¹ Calculations on permissible discharges from a hypothetical paper mill assumed identical river flows, identical (zero) upstream concentrations, and identical state criteria of 0.80 ppt.²⁷² Permits for the mill in three states would contain the following effluent limitations:²⁷³

Michigan	0.02 Kg.
Ohio	0.23 Kg.
Wisconsin	0.93 Kg.

Under identical circumstances, Wisconsin permits nearly 50 times the PCBs that Michigan allows.²⁷⁴

The purpose of this comparison is not, of course, to point fingers at Wisconsin or any other state. It is, rather, to illustrate that the permitted levels of toxic pollution from identical plants to identical waters are going to vary widely across the country not only from the more visible differences in state water quality criteria, but also from the nearly invisible calculations by which they are derived.

C. TMDLs

As described in an earlier section, the remaining step in a water quality-based pollution abatement process is the actual abatement itself, once water quality criteria are found to be exceeded. Described in Clear Water Act § 1313(d), states are required to set "Total Maximum Daily Loads" (TMDLs) for water quality limited streams which, in turn, lead to more stringent effluent limitations.²⁷⁵ As one commenter has noted, the TMDL process is "a monument to the ambitions of rational decision making."²⁷⁶ At the bottom of this monument, however, is "an acutely political judgment"²⁷⁷ as to who's ox will be gored. Another commentator writes, from the perspective of having worked with the program within EPA, the process is "difficult, inexact, and controversial."²⁷⁸ The difficulty is compounded by the absence of meaningful, objective criteria. EPA has unhelpfully offered several alternative methods for making TMDL allocations, ranging from even to uneven percentage reductions among sources,²⁷⁹ none of which even begin to resolve the difficulties of whether a state regulatory agency wishes to place its head into the jaws of a public utility, a chemical plant, or local farmers, all of whom may be responsible for a given form of pollution. Whatever else may be said, there is little help that can be offered and little law to apply.

For purposes of this study, suffice it to say that the very difficulty of the TMDL process has and will always be an imposing obstacle to pollution abatement under a water quality-based program. It is for this reason, among others, that the Congress, EPA, and the states have in practice all but abandoned § 303(d) and are motivated instead by the more urgent and focused toxic wasteload reduction strategies required by the § 304(l) "hot spot" program, and by whole effluent testing, soon to be discussed.

D. The EPA Option

Congress did not, even in 1972, leave the TMDL process entirely to the states. In § 302 it authorized EPA independently to establish additional effluent limitations where it found that existing permit limits otherwise established were not accomplishing the Act's goals.²⁸⁰ This authority was burdened, however, with special requirements for public review and for the new limitations themselves based on social and economic considerations.²⁸¹ These difficulties simply compound those just noted for pollution abatement and the establishment of TMDLs. A more unwelcome authority would be hard to imagine, and EPA, in its discretion, has not exercised it.²⁸² All of which says something about the feasibility of what the statute and EPA are directing the states to do. As they say in Texas, "that dog won't hunt."²⁸³

In sum, Congress attempted in 1987 to revitalize a moribund water quality-based regulatory program by mandating [21 ELR 10547] objective toxic criteria. The actual criteria required were limited in number, however, have been slow in coming, and are showing wide variations. These variations are accentuated many times by differing application factors in the 50 states and territories. No one, meanwhile, has solved the problems of TMDLs, catch-up, and accumulation. At bottom, the process presents an elaborate mathematical and scientific facade in front of what are essentially political judgments on not only the desired "uses" of waters but also, for the same designated uses, on acceptable risk, mixing, flows, and other factors. Water quality standards nonetheless receive the continued enthusiastic support of EPA, delighted, perhaps, to stay off of the firing line, and of states anxious to retain their regulatory prerogatives. Certainly there are also those in industry who cling longingly to the concept, waiting "for the day when the no discharge objective is abandoned in favor of basin level allocations of assimilative capacity=."²⁸⁴ Whether Americans on the receiving end of these discharges, and industry on the receiving end of this process, wish to live with both the facade and the balkanization of pollution control requirements that results from widely differing state requirements will be questions that continue for the life of water quality-based programs. =

VIII. Toxic "Hot Spots" and Individual Control Strategies

If we are going to repair the damage to those water bodies that have become highly degraded as a result of toxic substances we are going to have to move forward expeditiously on this beyond-BAT program. The Nation cannot tolerate endless delay and negotiations between EPA and the states on this program.²⁸⁵

Nowhere in the Clean Water Act is Congress' impatience with the slow progress in abating toxic pollution more visible than in § 304(l).²⁸⁶ Until read several times with close attention, the section's requirements for no fewer than three separate lists of polluted waters and a fourth list of toxic pollution sources seem redundant to the point of overkill. Read in connection with the newly added § 303(c)(2)(B), the section was requiring identification of toxic pollution before criteria identifying toxic pollution levels were even promulgated.²⁸⁷ Read in the light of the past performance of regulatory agencies in meeting past deadlines, its new, accelerated schedules were, in the words of one critic, "as unrealistic as the goal stated=, in § 101 of eliminating all pollutant discharges by 1985."²⁸⁸ Exactly so. And just as § 101 provided the stimulus for some gridlock-breaking progress in the early 1970s,²⁸⁹ § 304=(l) propelled a near-stalled toxics game forward again.

Section 304(l) imposed two basic requirements now familiar to students of regulation-by-water-quality-standards: the identification of problem areas and the development of control strategies to clean them up. Added, however, were deadlines for each step of the way. Within two years, or by February 1989, states were to submit three lists to EPA for approval: a "long" list of waters below water quality standards,²⁹⁰ a "medium" list of waters degraded by toxic pollution,²⁹¹ and a "short" list of waters degraded by-listed toxics discharged from point sources.²⁹² The next step was to identify, also by February 1989, those "specific point sources" that contributed to the toxics problem an=d "the amount of each such toxic pollutant discharged."²⁹³ The last step was, also by the same date, to submit an "individual control strategy" (ICS) through effluent limitations that would achieve water quality standards within three years of the adoption of the ICS.²⁹⁴ In case these steps were not followed, EPA was free to add to the state's lists, and, should a state default entirely, directed to conduct the exercise itself.²⁹⁵ This process was, of course, exactly the sort of exercise one would have expected EPA and the states to have been employing, at least for toxics, under § 303 for the past 15 years. Section § 304(l) made this aspect of § 303 visible, and compulsory.

To its credit, EPA moved to implement this section with relative alacrity. Unlike the 1987 Act's virtually ignored companion mandate that EPA develop new technology standards,²⁹⁶ § 304(l)'s requirements were imposed on the states, allowing EPA to crack the whip without feeling its sting. In September 1987, EPA issued early guidance requiring states to submit "preliminary water quality assessment plans" and "preliminary lists" of polluted waters and pollution source=s.²⁹⁷ EPA defended the "aggressive time frame" as compelled by "a statutory requirement that could not be altered."²⁹⁸ Final guidance in June 1989 spelled out a timetable and process for compliance.²⁹⁹ Remarkable in this guidance is the extent to which EPA held the line on its proposed requirements and "aggressive" timetable. It would exercise its authority to review, independently, all three lists of waters and lists of sources and ICSs.³⁰⁰ Where an ICS is approved, the deadline for compliance will be June 1992; where disapproved, an EPA-imposed ICS will require compliance by June 1993=.³⁰¹ The ICS would not be, as several commenters recommended, a "strategy" for [21 ELR 10548] compliance but, rather, a new individual permit with enforceable effluent limitations.³⁰² Strategies, EPA reasoned, could go on forever; § 304(l) spoke in terms of "effluent limitations" and that meant permit, now.³⁰³ If necessary, old permits would be reopened.³⁰⁴ Nonpoint source pollution was certainly a contributor to toxic pollution and would be "considered" in establishing waste load allocations under the § 303 process; the focus of § 304(l), however, would be point sources dischargers.³⁰⁵ Underlying all of these "tough-sounding" interpretations of law was the mandate of Congress that this program be accomplished on an expedited time-frame and without delay.³⁰⁶ This mandate justified an immediate effective date,³⁰⁷ permit reopeners,³⁰⁸ limited consultation with states on EPA-promulgated ICSs,³⁰⁹ abbreviated permit schedules,³¹⁰ and the above-mentioned interpretations on nonpoint sources and control strategies.

As any parent knows, sometimes nothing works like a very short deadline. By the time of EPA's Final guidance in June 1989, all but one state (Arizona) had submitted their proposed lists, sources, and control strategies, identifying, inter alia, 17,365 water bodies that did not meet water quality standards overall³¹¹ — a commentary, of sorts, on the effectiveness of water quality standards regulation since 1965. The "short" lists also identified 495 waterways degraded by toxic pollution (to which EPA added 100 more), and 769 facilities contributing to this toxic pollution (to which EPA added another 110);³¹² 45 percent of these facilities were found in the metal finishing, natural gas, and for reasons soon to be discussed, pulp and paper industries.³¹³ ICSs for 365 sources had been approved, and for another 514 were pending.³¹⁴ By May 1991, 520 ICSs had been approved.³¹⁵ Congress would have been proud of itself. Operation "hot spot" had netted some fish.

Not without controversy. Environmental organizations petitioned EPA to expand its § 304(l) lists³¹⁶ based on data on toxic releases from the right-to-=know provisions of Superfund Amendments and Reauthorization Act of 1986.³¹⁷ Some states submitted extensive lists of polluted waters while others submitted no candidates at all.³¹⁸ NRDC subsequently sued EPA over its regulations that limited the identification of toxic sources and ICSs (steps two and three in the process) to those sources discharging into "short" list waters, as opposed to all three lists in the § 304(l) exercise;³¹⁹ in September 1990 the Ninth Circuit Court of Appeals agreed, requiring the identification of toxic sources contributing to waters on any of the three § 304(l) lists, and remanding the question of additional ICSs for "further consideration," with a strong hint that they should be broadened as well.³²⁰ Industry, for its part, complained that, in the absence of state criteria for toxic compounds, the cart was before the horse,³²¹ and, further, that estimations of toxicity based on dilution calculations were simplistic and inaccurate, underestimating the effects of decay processes on the one hand, and of bioaccumulation on the other.³²² Various members of the pulp and paper industry sued to invalidate EPA additions to ="short" list waters,³²³ and their identification as toxic pollution sources,³²⁴ to no immediate avail.³²⁵ The real difficulty, however, and no end of controversy, will come not from the identifications to date but rather from the ICS permits, on whose success the whole program hinges.

ICSs can be viewed as a more focused process for setting TMDLs under § 303.³²⁶ In an ideal world, both processes abate ambient pollution by relating pollution levels back to effluent limitations. In the real world both processes rely on a calculus that, as we have seen, is still — its mathematical formulae for discharge rates, flow, and mixing notwithstanding — rudimentary and subject to considerable manipulation.³²⁷ This so, and with the consequences of ICSs nothing less than new permit requirements, the new ICS-driven permits have come under considerable fire from both industry and environmental groups alike, and, in the words of one EPA official, "bunches of them" are currently in litigation.³²⁸ Of 11 ICS permits for members of the pulp [21 ELR 10549] and paper industry, for example, at the time of this writing every one is in court.³²⁹

The results of these challenges will go a long way to determine the ultimate success of the § 304(l) program. If they succeed on their broadest attacks — issues raised in EPA's rulemaking concerning the reopening of permits, for example, or the adequacy of existing toxic standards — compliance with new standards could be postponed for years, if not decades. If, from another perspective, ICS calculations are allowed to include expansive factors for flow and mixing — variables that infect the entire water quality standard process — the process could end up netting a good many fish … and then releasing them.³³⁰ As with most aspects of a water quality-based program, the results will depend largely on the varying rigor of the 50 states.

It is clear that § 304(l) has had the effect intended of shifting attention from water quality standards for all pollutants to toxic standards on an accelerated basis. Whether that attention produces significant reductions, and consistent reductions, remains to be seen.

IX. The Regulation of Dioxin: A Case Study

Exceptionally low doses of 2378-TCCD elicit a wide range of toxic responses in animals, including carcinogenicity, teratogenicity, fetotoxicity, reproductive dysfunction and immunotoxicity…. This compound is the most potent animal carcinogen evaluated by EPA.

EPA, The National Dioxin Study³³¹

The regulation of dioxin — and more specifically a single form of 75 different isomers of dioxin called 2,3,7,8-tetrachlorodibenzo-p-dioxin (2,3,7,8-TCCD) — illustrates the complexities, uncertainties, inadequacies, and disparities that characterize the current return to regulation by water quality standards. EPA studies describe 2,3,7,8-TCCD as "by far the most potent carcinogen evaluated to date by the Agency" and "also the most potent reproductive toxin yet evaluated by EPA."³³² Doses as low as .00=1 parts per trillion have produced cancer in test animals.³³³ No identifiable threshold has been found safe for aquatic life.³³⁴ =The 2, 3, 7, 8-TCCD compound is persistent in the environment and adheres strongly to soils and sediments; it has a "high potential for bioaccumulation."³³⁵ This combination of characteristics is worth a pause: dioxin is the most lethal chemical ever produced and, once released into the environment, it does not go away.

Dioxin has long been associated with the herbicide 2,4,5-T, a component of Agent Orange,³³⁶ but its presence in wastewater discharges was not suspected during the development of technology standards for the industrial categories identified in the NRDC v. Train consent decree,³³⁷ and as a consequence no effluent limitations were developed. In 1983, however, surveying the extent of dioxin contamination at manufacturing and waste disposal sites around the country, EPA noted high levels of the chemical in fish in the Great Lakes and in "major river systems," and "a previously unsuspected possible source of contamination," pulp and paper mills.³³⁸ Here began an extended series of actions and reactions based on a wildly imprecise science and a federal impulse to shift whatever regulatory burden was necessary to the states.

In February 1984, EPA promulgated water quality criteria for dioxin indicating that "for the maximum protection of human health," the ambient water concentration should =be "zero," but since "zero may not be an attainable level at this time," established risk levels ranging from 0.0013 parts per quadrillion (ppq) for a risk level of 10-<7"> (one in ten million), to .13 ppq for a risk of 10-<5"> (one in 100,000).³³⁹ These levels were derived from assumptions about carcinogenicity, toxic thresholds, and exposure pathways now familiar to aficionados of risk assessment.³⁴⁰ No levels were set for aquatic or other life.³⁴¹ Nor were any overtures made to set technology standards for dioxin discharges from the pulp and paper industry.

In 1985, the first of several suits was filed to move EPA into a more proactive posture.³⁴² While the original suit sought a rule under TSCA eliminating dioxin contamination, a subsequent settlement decree (again) set the agenda for EPA's program: EPA would, on fixed timetables, conduct risk assessments for dioxin in papermill effluent and determine whether or not to implement regulation under the Clean Water Act.³⁴³ Meanwhile, EPA launched the first of two "joint studies" with the American Paper Institute (API)³⁴⁴ to assess the problem at five selected mills, opining, however, that "armchair calculations suggest … negligible risk to humans."³⁴⁵ API's statement was even less enlightening: "Dioxin is not used in any way as a part of our manufacturing process."³⁴⁶ These assurances notwithstanding, the first study showed sufficient receiving water contamination to warrant a second joint study of 105 mills, at a cost of $ 3 million, generously offered by API.³⁴⁷ Despite [21 ELR 10550] allegations that the study was biased toward industry,³⁴⁸ and indeed the finding of one district court that EPA documents supported "the existence of an agreement between EPA and the industry to modify, suppress, or delay the results of the Joint Study,"³⁴⁹ the results again showed dioxin contamination,³⁵⁰ presenting EPA with the unpleasant prospect of having to act. Effluent from International Paper Company mill in Georgetown, South Carolina, was reading 640 ppq.³⁵¹ Fish caught downstream of the plant were showing levels of 107 parts per trillion.³⁵² Fish levels below the Weyerhauser Plant in Plymouth, North Carolina, read a record 157 parts per trillion.³⁵³ Eight of the top ten dischargers were located in Alabama, the Carolinas, Louisiana, and Mississippi³⁵⁴ … a fact that will assume significance.

In August 1988, with technology standards still not scheduled for formulation, EPA released an "interim strategy document" calling for "aggressive action" on dioxin.³⁵⁵ EPA's goal was said to be nothing less than "to eliminate the presence of dioxin in discharges from pulp and paper mills."³⁵⁶ EPA's goal would be achieved, somewhat less forthrightly, by obliging the states to develop water quality standards for dioxin. Having already set a water quality criteria range for dioxin several years earlier,³⁵⁷ and within that range having adopted a criterion of 0.013 ppq, EPA also announced, however, that it was "considering making the potency factor for dioxin less stringent," raising its criterion nearly 20 times to 0.2 ppq.³⁵⁸ Whatever was intended by this announcement, it was a confession that EPA had less than full confidence in its criteria levels, and an invitation for state departures. As an added inducement to state action, EPA indicated that it would set its own dioxin standards for states that failed to adopt them, and that it would employ its level of 0.013 ppq.³⁵⁹ The corollary did not need to be expressed: if they acted, the states could thumb their noses at 0.013.

In May 1990, this interim strategy became final, with additional guidance on state permitting and testing procedures.³⁶⁰ EPA thus shifted to the states the burden of dealing with the most potent toxin yet known, at levels that cannot be detected by even the most sophisticated conventional means and must instead, be "extrapolated from downstream sediments and fish fillets"³⁶¹ (leading to controversies among scientists over whether one counts the whole fish or just the fillets),³⁶² on assumptions of risk so tenuous that EPA was considering abandoning them, on water bodies that varied widely in flow and quality, on formulae for projecting water quality impacts that varied with assumptions of flow, quality, and acceptable zones of "mixing," on "acceptable" human deaths that could vary from one in ten thousand to one in ten million, and on no aquatic or other health levels at all.³⁶³ Adding to the mystery of it all, that same month an EPA Assistant Administrator announced that dioxin produced in paper manufacturing was not a significant health or environmental threat, but that it probably would be subject to tougher regulation anyway.³⁶⁴

By May 1990, 21 states had adopted or proposed numerical water quality standards for dioxin.³⁶⁵ The mechanism for converting these standards to effluent limitations on an expedited basis was § 304(l), requiring ICSs for "hot spot" water segments.³⁶⁶ EPA had predicted that § 304(l) would have the largest impact on papermills, because of their association with dioxin.³⁶⁷ As it turned out, at the end of the § 304(l) process dioxin limits were proposed for 88 of 98 identified papermills.³⁶⁸ Impacts such as these do not go unchallenged, and the paper industry has strongly opposed any standard more stringent than 1.2 ppq as unnecessary [21 ELR 10551] for human health and unduly burdensome.³⁶⁹ The strength of this campaign and the flexibility offered states in standard setting has resulted in state human health standards for dioxin that range from well below to well above EPA's recommended .0013 ppq. Georgia proposed the somewhat astonishing level of 7.2 ppq.³⁷⁰ The standards of Alabama, Georgia, Maryland, and Virginia exceed those adopted in Minnesota by 10,000 times.³⁷¹ By late March 1991, 36 states had adopted dioxin criteria, 16 of them at EPA's level, 5 below, and 14 above.³⁷²

Before examining several state dioxin standards more closely, two observations from these data should not be allowed to escape. Since early in 1987, at full steam ahead, we have managed to produce standards for one chemical compound, 2,3,7,8-TCCD, for one parameter, human health. Aquatic or other environmental criteria are scarcely envisioned.³⁷³ Second, of the seven least protective standards adopted in 36 states, five are those of southern states.³⁷⁴ Of the seven additional states with new standards pending, the three least protective are Arizona, Mississippi, and South Carolina.³⁷⁵ Of five additional states where standards were expected, the least protective, by a factor of 100, is Texas.³⁷⁶ Levels of human health, and therefore permissible levels of discharge, are being regionalized, generally along the lines of the Civil War, with obvious implications for industrial inducement and growth. An examination of several regions shows the ways in which these disparities have been brought about.

A. North Carolina and Tennessee

The pollution of the Pigeon River began when Champion started up its mill operations in Canton, N.C. 80 years ago…. Since that time down to the present, this once lovely and sparkling clean mountain river has been transported into a foul-smelling, foaming, sludge-filled mixture that looks like oily coffee and stinks like rotten eggs.³⁷⁷

The Pigeon River flows from the mountains of western North Carolina into Tennessee. Champion Paper, which produces one third of the nation's milk and juice cartons, is the largest employer in western North Carolina, providing 2,000 jobs.³⁷⁸ When EPA proposed to impose color and related limits on Champion's discharge based on Tennessee's water quality standards, Champion went into the familiar defensive mode. It sued EPA to prevent the Agency's assumption of permitting authority,³⁷⁹ and it threatened to lay off half of its work force.³⁸⁰ The Governor of North Carolina, influenced as anyone might be, stated that all that was really at issue was "whether 1,000 good people must be put out of work so that the color of the river can be reduced."³⁸¹ Nonetheless, Tennessee insisted on its standards and EPA issued a permit, later modified, for the attainment of Tennessee standards and for a dioxin reduction program.³⁸² Instead of plant closure or layoffs, Champion has subsequently announced a plant modernization that would replace dioxin-producing chlorine with chlorine dioxide and other oxygenation methods.³⁸³ The example was set: dioxin could be dramatically abated.

Paradoxically, North Carolina has since adopted the stringent EPA criteria of 0.013 ppq for dioxin;³⁸⁴ Tennessee has adopted a limit of 1.0 ppq, nearly 100 times greater.³⁸⁵

B. The Pacific Northwest

Oregon and Washington, states with important commercial and recreational fishing industries and reputations for environmental protection, have adopted EPA's dioxin criteria of 0.013 ppq.³⁸⁶ As a result, 12 paper mills in these two states are on the § 304(l) short lists, and a state permit for a new mill has been, at least temporarily, denied.³⁸⁷ Following its disapproval of dioxin control strategies for plants in Washington, however,³⁸⁸ EPA has been sued to adopt its own ICSs, and ancillary disputes have arisen over the states' application formulae,³⁸⁹ the fish selected as the basis for risk estimates,³⁹⁰ whether the whole body portions of [21 ELR 10552] the fish or fillets should be chosen,³⁹¹ and whether EPA and the state should be regulating dioxin compounds other than 2,3,7,8-TCCD that, allegedly, are greater contributors to toxic pollution.

At the request of Idaho, Oregon, and Washington, meanwhile, EPA has for the first time in its history set its own TMDLs affecting eight mills in the Columbia River Basin, "to attain consistency" in the basin.³⁹² The discharge limits are calculated to meet the 0.013 ppq water quality standards adopted by each state, and to consume approximately one third of the assimilative capacity of the River, reserving two thirds for a "margin of safety because [EPA] lacked information."³⁹³ Why this consistency is more necessary on the Columbia than it is elsewhere in the country is a question not explained … but not lost on industry either. Paper industry representatives challenged the limits as "bad science," a usurpation of state authority, and "impossible to achieve" … and as creating "a competitive disadvantage with mills in other states."³⁹⁴ Whatever the merits of its other contentions, the industry seems clearly correct on the last; then again, interstate competitive disadvantages are the inevitable consequence of leaving pollution control limits to the several states, not of allocating TMDLs.

Nonetheless, in February 1991 EPA adopted the dioxin wasteload allocations for the Columbia basin, virtually as proposed.³⁹⁵ EPA explained that much of the required reduction in dioxins had already occurred through "recent changes in the manufacturing process," especially in the reduced use of chlorine as a bleaching agent.³⁹⁶

C. The South

Not since 1861 has the fate of the industrial South hinged so clearly on the direction of Virginia and Maryland. In the fall of 1990, Maryland³⁹⁷ and then Virginia³⁹⁸ threw down the gauntlet on dioxin by adopting standards of 1.2 ppq, nearly 100 times above EPA's recommended criterion … and exactly at the number recommended by API. EPA's subsequent approval of these numbers³⁹⁹ has set the stage for similar proposed standards from Alabama, Louisiana, Mississippi, South Carolina, and Tennessee⁴⁰⁰ home to most of the most serious dioxin-discharging paper mills identified in the § 304(l) process.⁴⁰¹ If nothing else, EPA's approval also illustrate how inadequate the science and the water quality standards process remain in a program of pollution control — for but a single toxic compound, and one of the most scientifically studied compounds in history.

At bottom, and with assistance from API, which was "working very hard to put its case in the best light,"⁴⁰² Maryland and its sister states discovered that by manipulating two assumptions in EPA's multi-staged risk assessment process, they could dramatically affect the outcome. First, they chose a cancer "potency" factor based on extrapolations from lab animals to humans based on body weight, the practice of the Food and Drug Administration, rather than EPA's method of using body surface area; the result was a factor 10 times less potent.⁴⁰³ The second was simply the choice of an "acceptable" risk level ten times as great as that used in EPA's criteria, 10<-5> rather than 10<-6>.⁴⁰⁴ Within these two factors of 10, water quality levels of dioxin — for which, in EPA's words "no studies to date have found a non-toxic exposure level to aquatic life"⁴⁰⁵ — rise 100 times. With one ironic exception: since one of Virginia's mills discharges into the Blackwater River, which soon flows into North Carolina — and since North Carolina is the lone adherent to EPA's criterion along the Southeastern tier — the Blackwater's standards will be 100 times more demanding than any other in Virginia.⁴⁰⁶ All of which now brings the problem of competitive disadvantage by differing environmental standards right down to the county level.

For an understanding of the weaknesses of both the science of dioxin and the process of water quality standards, it is necessary to examine the development and approval of one of these standards in more detail. For illustration, we will choose Virginia. To begin, it is clear that, in adopting its standard, Virginia was keeping one eye on the leeway offered by imprecise assumptions on dioxin risks, and the other on the economic costs of a standard greater than industry wished to bear. As the Virginia Water Board's Executive Director charged his colleagues:

It is your responsibility to find the answer of what is environmentally safe and to set a standard to regulate what is environmentally safe: yet, at the same time, you have a responsibility to not go beyond what is achievable and responsible from a socio- economic standpoint.⁴⁰⁷

Translated, Virginia was going to set the highest level it could get away with.

To EPA, on review, Virginia could get away with plenty because, in its view, its own criterion was developed "in [21 ELR 10553] the absence of a clear scientific understanding"⁴⁰⁸ and based on factors and assumptions with which even other federal agencies differed.⁴⁰⁹ Indeed, for determining a cancer risk factor for dioxin, all four federal agencies with dioxin standards "based their risk estimates on the same scientific studies," but "differed in their use of the data from these studies."⁴¹⁰ This scientific uncertainty, in EPA's view, left it in a vacuum, and compelled it to approve anything defensible from Virginia so long as it was "within the bounds of uncertainty of EPA's approach."⁴¹¹ The elasticity of these bounds becomes apparent by EPA's treatment of each factor in Virginia's decision.

Virginia's choice of the least protective cancer risk factor was, as just described, defensible because: it was a method of another federal agency, FDA.⁴¹² Virginia's use of a bioconcentration factor (BCF) for dioxin in fish of 5,000, even though its Water Board had considered a factor of 11,000 and EPA's most recent study on bioconcentration showed ranges from 66,000 to 150,000,⁴¹³ was also defensible, at least in the negative; that is, EPA was "not prepared to say at this time that the BCF is not scientifically defensible."⁴¹⁴ A good rule of thumb is that, whenever someone writes in the double negative, the author is not proud of the sentence. Perhaps recognizing this fact, EPA went on to defend its support of what was obviously not conservative science by stating that:

It is the express policy of the Act to recognize, preserve and protect the primary responsibilities and rights of states to prevent, reduce and eliminate pollution. See Section 101(b) of the (Clean Water Act).⁴¹⁵

Translated, EPA was going to let the states do as much as EPA could get away with. For the most powerful toxin on earth,⁴¹⁶ we are back to states rights.

EPA's deference to Virginia on its other less-than-conservative assumptions followed the same pattern. On estimates of fish consumption — despite evidence that Virginians, particularly those in coastal areas, and particularly those who fish directly below major, identified paper mills, eat more fish than the national average⁴¹⁷ — Virginia's use of the national average was defensible because the state had done no state or local studies on consumption.⁴¹⁸ Ignorance thus rewarded, EPA also deferred to Virginia's choice of an acceptable risk level 10 times less stringent than its own because 10<-5> was also used in federal regulatory actions,⁴¹⁹ and to the state's use of average total flows that included unusual storm events, which raised flow proximations approximately "three-fold," to dilute projected dioxin concentrations and raise the allowable levels of discharge.⁴²⁰

Enough said. In all of these decisions, EPA — with a hopefulness no one could mistake for either optimism or backbone — "encouraged" Virginia to conduct more studies on its own⁴²¹ and commented that it "may be appropriate"⁴²² for the state to develop more stringent, site-specific criteria. No one should hold his or her breath. The bottom line was, as EPA formally recognized in its discussion of a "holistic approach," that while Virginia's approach cut every corner available, each factor was "independently justifiable,"⁴²³ and, taken together, cumulatively justifiable even though, were EPA risk assumptions substituted for those adopted by Virginia, the level of safety yielded by Virginia's 1.2 ppq standard would be only 10<-4>,⁴²⁴ 100 times less protective than Virginia's adopted 10<-5> level and 1,000 times less protective than EPA's 10<-6>.

The stage is now set for EPA approval of similar relaxed state standards, starting with southern states, each of which has its own variation on reinterpreting the science supporting EPA's recommended dioxin level. Tennessee, for example, has justified a less stringent standard based on its disagreement that dioxin is cancer causing at all.⁴²⁵ Alabama, staying with proven ground, has relied on the FDA potency factor. EPA apparently not wishing to appear to give way all at once, has stated that the state dioxin numbers arrived at will not be controlling but, rather that it will look to their "scientific defensibility"⁴²⁶ … as if the rationales offered mattered to aquatic life, or human health for that matter. In fact, the rationales are just that, rationales, for decisions based on other factors. In Louisiana, for example, where the Department of Environmental Quality has rejected a standard of 1.2 ppq because it "would jeopardize the public health," the legislature is considering a bill to itself set the limits at 1.2 ppq;⁴²⁷ according to paper industry representatives, the proposal will "help put us on a level playing field with other states that have accepted a much higher standard."⁴²⁸ (No mention is made of the playing field with the majority of states that have set levels at or below .013 ppq.) At this point, no one pretends the decision is based on science.

D. The Lesson of Dioxin

Viewing the issue more broadly, no issue more than dioxin demonstrates that the science of even the best studied toxins is inadequate to produce anything but near-arbitrary decisions on numerical, health, and environmental standards. As one dioxin researcher has concluded:

This series of events shows many of the problems with quantitative risk assessment. There is uncertainty about even the most basic questions such as the classification of tumors in laboratory animals. A large number of [21 ELR 10554] assumptions are required, each of which must be independently justified. Because of the uncertainty and the number of assumptions, it may be possible, in the absence of checks and balances, to construct nearly any result.⁴²⁹

EPA's approvals of Virginia and Maryland's standards are indeed predicated on the inadequacies of its supporting science and of the arbitrariness of its assumptions. We do not know whether we are measuring body surface or body weight; whole fish or fillets;⁴³⁰ carp or crawfish;⁴³¹ native American seiners or beef-eating Texans;⁴³² waters at mean flow, harmonic mean flow, average low flow, or historic low flow;⁴³³ pure waters or already-polluted waters;⁴³⁴ bioaccumulation ratios of 5,000 or 150,000;⁴³⁵ … and we are arriving at ambient state standards that vary up to 1,000 times.

Compounding this uncertainty is the prospect of legal challenges to whatever standards are approved. It is the states that will have to defend the standards against industry,⁴³⁶ and a process that requires them to defend standards adopted against their will is a receipt for failure. Compounding the problem further is the fact that, under a water quality-based program, even were state dioxin standards identical and all waters of the same designated "use," great variations among states and within states will be produced by the mere fact of whether the mill is located on a large or small water body, and the assumptions the state makes in calculating its water quality and flow. New plants will be driven to the weaker states and the larger bodies of water: welcome to the South.⁴³⁷ As several states have noted, southern mills will "not have to do very much" to comply with southern standards.⁴³⁸

The case of dioxin also illustrates the exhaustion of spirit with which EPA is approaching the alternative remedy of a technology-based standard, BAT. We are into the sixth year of specific awareness that pulp and paper mills produce extraordinary levels of dioxin, and BAT has yet to be proposed. Indeed, EPA has, in practice if not by design, shifted the burden of developing BAT to the states, or at least to those states in the north and west willing to face the paper industry. EPA will use the states' case-by-case best professional judgment (BPJ) process to develop its BAT, perhaps by "late 1993."⁴³⁹

Whether BAT will further limit dioxin discharges, or ratify the status quo, remains to be seen. What is startling, however, on review of this limited slice of the dioxin spectrum (one that does not include important developments in, for example, the Great Lakes),⁴⁴⁰ is how much money, time, and effort is being spent to study, justify, challenge, and otherwise prove an indicator — water quality effects — that is probably incapable of definitive proof and that is not at all what so much money, effort, and time could be best spent doing. Throughout this discussion of dioxin, we have assumed its production as a consequence of producing bleached paper. Chlorine bleach and wood pulp make dioxin. Already, leading members of the paper industry, while fighting a rear-guard action against strict standards, are converting to bleaching by chlorine dioxide and by hydrogen peroxide, processes far less polluting.⁴⁴¹ If we expand the focus of what we are examining to include the whole process — whitened paper, not necessarily by chlorine — we arrive at improved results. Nowhere in this process, however, do we ask the obvious question: why do we need so many bleached milk cartons, tissues, and the rest of an itinerary that other nations, equally modernized, may apparently do without?⁴⁴²

Unfortunately, rather than address the obvious, we are about to engage in yet another expenditure of money, effort, and time reexamining the risks of dioxin. On April 10, 1991, EPA announced a new review, with an explanation from the Administrator that "some factors may decrease the level of concern" and "others may result in estimates of increased risk."⁴⁴³ Anyone expecting more definitive results to emerge from this review has more boundless faith in science than Dr. Faust. The industry is poised, with its experts, to show the current standards "too stringent."⁴⁴⁴ Environmental organizations are readying themselves to prove the standards "too weak."⁴⁴⁵ In all likelihood, neither will emerge content, or convinced. For certain, neither will be proven wrong. We continue to pursue a will-o-the-wisp.

On the other hand, the saga of dioxin offers at least a glimpse of a silver lining. The near-routine predictions of layoffs, plant closings, and economic ruin notwithstanding, when the paper industry has had, at last, to convert to a less polluting process, it has done so.⁴⁴⁶ At bottom, the struggle is not over the ability not to pollute, but over lead time and competitiveness. Any solution to toxic pollution will have to accommodate these legitimate industry needs. A solution, on the other hand, that fosters differing state standards and differing state applications of these standards breeds uncertainty, contention, unfairness, and endless opposition.

[21 ELR 10555]

X. Whole Effluent Toxicity

In many cases, all potentially toxic pollutants cannot be identified by chemical methods. In such situations, it is more feasible to examine the whole effluent toxicity and instream impacts using biological methods, rather than attempt to identify all toxic pollutants, determine the effects of each pollutant individually, and then attempt to assess their collective effect.⁴⁴⁷

At last, a reality check. After decades of trying to set numerical standards for all toxic compounds and extrapolating their effects from multiple outfalls, we could simply take a sample at an outfall, introduce a few local organisms and see what survived. Like the miner's canary, this is not, at bottom, a terribly sophisticated process. On the other hand, those familiar with the vagaries of monitoring and modeling ambient environmental impacts might well long for the simplicity — and the security — of a canary in the hand. For this reason, whole effluent testing is becoming an increasingly important player in the regulation of toxic discharges. It is far from a complete test. It brings in its own variables and uncertainties. But when more than 50 percent of the organisms die within a few days, at least we know that there is a problem with toxicity.

EPA began experimenting with the use of biological monitoring in NPDES permit requirements more than a decade ago. In May 1980, the Agency proposed consolidated permit regulations that included biological testing of discharge effluent, and it circulated a draft protocol on the methods for testing and of toxicity reduction.⁴⁴⁸ Faced with opposition from industry, however, in November 1982 EPA put this initiative on hold until it could reevaluate "whatever and how toxicity testing should be accomplished."⁴⁴⁹ After an 18-month review, EPA issued a "national policy statement" on the development of water quality-based permit limitations for toxic pollutants, "recommending the use of biological techniques as a complement to chemical-specific analyses to assess effluent discharges and express permit limitations."⁴⁵⁰ In September 1984, these procedures were made part of EPA's final consolidated permit regulations.⁴⁵¹ The use of biological testing "to assess" discharges was, in and of itself, a rather innocuous requirement; using the monitoring results as "limitations" on discharges has been the rub. Limitations raise the possibility of violations, sanctions, and new controls.

In the early stages of EPA's development of whole effluent testing, the Agency's authority to translate dead organisms into permit limitations was at least questionable. Commenters on the proposed policy challenged this authority,⁴⁵² and one EPA administrative law judge found it "troublesome and potentially unreasonable" for biomonitoring to have such an effect.⁴⁵³ Since that time, Congress has resolved the matter, albeit somewhat obliquely. The Water Quality Act of 1987 not only directs EPA and the states to develop water quality criteria based on biological monitoring,⁴⁵⁴ but also provides that nothing in these requirements "shall be construed to limit or delay the use of effluent limitations or other conditions based on or involving biological monitoring or assessment methods."⁴⁵⁵ In two subsequent cases, EPA's authority to set permit limits by these methods was upheld in the Ninth Circuit,⁴⁵⁶ and again in the District of Columbia Circuit.⁴⁵⁷ The courts relied on the 1987 Amendments and on a reading of the Clean Water Act's definition of "effluent limitations,"⁴⁵⁸ first offered by EPA in defense of its 1984 policy,⁴⁵⁹ to include toxic effects as well as numerical criteria for specific pollutants. The authority question put to rest, EPA, the states, and the affected industry now face the more perplexing questions of what the testing requires, and its consequences.

EPA's exercise of its whole effluent testing authority has been cautious, issuing technical guidance for the process⁴⁶⁰ [21 ELR 10556] but leaving the more difficult questions of implementation to its Regions and the states themselves … resulting in a quasi-informational, quasi-regulatory process that is still finding its form. The basic protocol for effluent testing is described in EPA's technical manual entitled "Technical Support Document for Water Quality-based Toxics Control."⁴⁶¹ Despite its formidable flowcharts and equations, by comparison to the determination of best available wastewater treatment technology for the organic chemicals, plastics and synthetic fibers industry or the derivation of a chronic exposure level for dioxin through dermal absorption, the testing procedure is relatively straightforward.

A sample of the effluent is taken and diluted to various concentrations, including a control sample with no effluent added.⁴⁶² For these dilutions, the receiving water itself is used to approximate actual effects.⁴⁶³ Test organisms are placed in the various dilutions and examined, over time, for mortality and for such secondary effects as reproduction and growth. Here, several types of calculations may be made. One is an "LC[50]," the concentration at which half of the test organisms are killed over a given period of time; thus an LC[50] at 48 hours might be 10 percent, a common measure of acute toxicity. Another is a no observed effect level (NOEL), the highest effluent concentration at which no harm, usually chronic effects, is observed.⁴⁶⁴ While the EPA technical support document recommends translating these effects to "toxicity units,"⁴⁶⁵ and then to permit levels, the practice in the field appears to eliminate this step. In EPA's Region VI, for example, six concentrations are tested, one at the predicted concentration of the effluent in the receiving water, two above it and two below (and one control).⁴⁶⁶ Concentrations are derived from the states' formulae for mixing zones; at least one dilution is to reflect critical low flow conditions.⁴⁶⁷ Tests are conducted on representative species, including a form of minnow, shrimp, and algae.⁴⁶⁸ The tests are run monthly, for a year.⁴⁶⁹ If any test at the actual effluent concentration, or below it, shows lethality at greater than 50 percent over the short term (up to 48 hours), or chronic effects over a longer term (up to 7 days), alarm bells ring.

If toxicity is found, the permittee is required to retest the effluent and, should the effects recur, to undertake a Toxicity Reduction Evaluation (TRE) in order to identify, and abate, the source of the problem.⁴⁷⁰ Although guided by a growing body of literature,⁴⁷¹ the TREs are, in effect, scientific detective stories attempting to trace, in a fashion reminiscent of waste load allocations and individual control strategies for effluent-limited waters, an impact back to its source … with one important difference. Unlike that bewildering variety of nonpoint and point sources to an entire lake or river segment that confronts a WLA or ICS investigation,⁴⁷² the TRE concerns only a single facility, perhaps a single outfall, a considerably more manageable exercise.

Under this prescribed outline, EPA Regions and states are now developing the whole effluent toxicity program. In April 1987, for example, EPA Region VI — within which reside the petrochemical complexes of South Louisiana and, not surprisingly, the highest volumes of waterborne toxic discharges in the nation⁴⁷³ — announced its "Third Round NPDES Permit Implementation Strategy," focused largely on effluent testing.⁴⁷⁴ The strategy targets "all potential significant contributors to toxicity," and dischargers "in known areas of ambient toxicity"; in a shift of the usual burden of proof, biomonitoring is required for all dischargers "for which there are insufficient data to demonstrate that the discharges do not contribute to ambient toxicity."⁴⁷⁵ As a practical matter, however, the process has been triggered either by identification of toxic "hot spots" under § 304(l), or by permit renewal of "major" facilities.⁴⁷⁶ Of more than 10,000 total facilities in this industrialized region, over 1,000 are classified as "major" and, as of Spring 1991, 530 of these, or about half, were conducting some form of biomonitoring.⁴⁷⁷ Of the 530 major facilities, no fewer than 25 percent were showing "periodic" toxicity, and for 15 percent the toxicity was "persistent"⁴⁷⁸ (a commentary, of sorts, on the effectiveness of Water Quality Standards and BAT in eliminating "toxic discharges in toxic amounts"). By March 1991, 42 facilities in the Region were conducting TREs; 19 of these were municipal dischargers (unhappy recipients of "pretreated" industrial discharges, one of the Clean Water Act's major errors),⁴⁷⁹ and 23 were industrial facilities.⁴⁸⁰ Testing for chronic, as opposed to acute, toxicity is largely responsible for triggering these TREs, by a ratio of 39 to 4 (another commentary, of sorts, on those environmental standards that are currently limited to acute effects).⁴⁸¹

Biomonitoring permit requirements are expressed either as a process, the conduct of certain tests, or as a limitation called a "wet limit," the conduct of tests with predetermined [21 ELR 10557] limits on harm.⁴⁸² Under either approach, should the effluent fail the tests the permittee proceeds to a TRE. As a legal matter, however, the approaches are quite different because a violation of a permit limit is a violation of the Act, with all of the accompanying consequences.⁴⁸³

Some entities most affected by whole effluent testing, fearing that it will be used as an "enforcement tool" and "regardless of the impact of the discharges on the designated use of the receiving waters,"⁴⁸⁴ have sought to cast the program as "an investigatory tool" to help detect and "eventually eliminate" harmful toxic compounds;⁴⁸⁵ in their view, test failures open up a "dialogue" with industry on the need for, and the nature of, abatement measures.⁴⁸⁶ EPA has considered and rejected this view,⁴⁸⁷ correctly. Testing requirements are not effluent limitations at all unless they are accompanied by a prohibition. A testing-only process circumvents the congressional mandate that effluent-based permit limitations be imposed expeditiously.⁴⁸⁸ In practice, however, EPA seems to straddle this fence, with one leg on the tests-as-investigations side and the other extending toward enforceable limits. By March 1991, only five permits in Region VI imposed fixed "wet limits," three as a result of biomonitoring and TREs, and two "upfront" limits imposed on the basis of anticipated toxicity problems.⁴⁸⁹ For the great majority of permits in the process, even where significant toxicity has been found, compliance is moving forward without the impetus of fixed limits and the Act's enforcement mechanisms. The Regions, too, are moving cautiously.

EPA's caution may reflect the criticism it has received from industrial dischargers on this new approach that has, in their eyes, grown from a supplemental program for a few problem dischargers to a full-fledged regulatory program, and the lack of confidence EPA (again) feels in its underlying methodology. As early as 1982 we saw industry attempting to derail this program and, at least temporarily, succeeding.⁴⁹⁰ Representatives for industry and for the most aggrieved party of all in the nation's failure to control toxic discharges — the managers of publicly owned treatment works — have not been slow in pointing out technical problems in the implementation of whole effluent testing,⁴⁹¹ and EPA has been candid in acknowledging them.⁴⁹² To begin, effluent composition even at a single outfall is not static but, rather, varies widely by process, time of day, and other factors, and produces widely variable results on test organisms.⁴⁹³ (This conclusion, amply demonstrated in the subsequent TREs that attempt to replicate, and remediate, conditions that led to test failures, casts a very long shadow over the adequacy of "grab sample" and other techniques that are the very basis for all Clean Water Act compliance monitoring and enforcement.) Second, receiving water quality and dilutions arrived at through mixing zone formulae and low flow assumptions differ widely,⁴⁹⁴ assuming that the receiving water is itself not toxic (a poor assumption in, for example, Louisiana.) If the receiving water is toxic, laboratory water must be used,⁴⁹⁵ compounding the variablesand the departure from reality. In addition, the indicator species chosen for the test may not be representative of the receiving water, and may be more, or less, sensitive to toxicity.⁴⁹⁶ There are further variables introduced by testing in a wide range of private laboratories, under loose protocols and even more relaxed supervision.⁴⁹⁷ From industry's point of view, the process also fails to consider the "acclimation" of natural communities in the receiving water to pollution, over time.⁴⁹⁸ From the view of environmental protection, on the other hand, the process fails to disclose such important long-term toxic effects as carcinogenicity, bioaccumulation, and bioaccumulation of toxins up the food chain.⁴⁹⁹ Indeed, from an environmental standpoint it is not at all clear why 50 percent of test organisms have to die before even a short-term problem is noted. These technical problems have prompted criticisms on individual third-round NPDES permits,⁵⁰⁰ on the regulatory requirements,⁵⁰¹ the Technical Support Document,⁵⁰² and in a smattering of literature.⁵⁰³

For their part, the courts have seemed willing to uphold any reasonable testing method that EPA chooses to employ. The Ninth Circuit dismissed an industry challenge to biomonitoring based on "too high a degree of variability of test results," simply citing the Supreme Court's admonition that reviewing courts should be "most deferential" in reviewing an agency's scientific determinations, and without [21 ELR 10558] discussing the determinations at issue further.⁵⁰⁴ The District of Columbia Circuit found the regulations lawful, and the technical support document not ripe for review but, as EPA had failed to provide formal notice and comment on the technical document pursuant to the Administrative Procedures Act, left open the possibility of attacking a particular effluent-based limitation on technical grounds⁵⁰⁵ … shifting the burden of justification to the states.

As of this writing, at least one state appears to have at least partially capitulated in the face of this burden. In 1990, when the Washington Department of Ecology imposed effluent toxicity testing on discharges into Puget Sound, 27 industrial and municipal facilities appealed the requirement to the state Pollution Control Hearings Board.⁵⁰⁶ In a settlement agreement announced in April 1991, the facilities will withdraw their appeals in return for a state administrative order that immunizes them from enforcement proceedings based on the toxicity testing for five years.⁵⁰⁷ The Puget Sound Water Quality Authority manager defended the agreement on grounds that the industries could have "kept the dispute in court for years," and needed the time "to try to fix their pollution problems.⁵⁰⁸ Resolution of whatever problems and fixing are identified appears to be no sooner than 1996.

Over time — if more time is necessary or is granted by default for the additional, incremental regulation of toxic water discharges — it seems inevitable that whole effluent testing will evolve into a limitation and an enforcement program. In its best light, EPA, in a trial-and-error, common-law fashion, is letting the program mature while, in its worst light, is transferring the maximum of heat to the states. The principal advantage of the program is irrefutable: it is the only one to date that even attempts to measure the cumulative effects of what is actually being discharged. The principal disadvantage is that the tests are and will always be to some extent short-range, simplistic, variable, and disputable; they will never replicate what is actually happening.⁵⁰⁹ On the other hand, nothing ever will.

Whole effluent testing emerges from this analysis as a useful adjunct to a multi- faceted toxic pollution regulatory program. In concept, it has that breathtaking simplicity that makes one wonder why it wasn't initiated 40 years ago, from the start. In practice, it will flag toxic compounds that were never considered in establishing BAT, and toxic combinations beyond the reach of individual water quality standards. It may not flag complex reactions, reactions over time, or sublethal effects on nontested organisms⁵¹⁰ … but nobody's perfect. Variable as it is from state to state, lab to lab, and from one month's test to the next, it presents industry with a new form of toxic roulette, never knowing when or for what reason 51 Fathead Minnow larvae out of 100 may go "belly up" in the test chamber. Over time, it will plunge a number of companies into a palm-sweating TRE process, produce some necessary process changes (including some obvious, simple maintenance procedures), reduce some toxicity, and perhaps, by its additional weight, add momentum to the call for a solution that is no longer based on more tests and more procedures but rather on simply getting the job done.

XI. Biological Criteria

It is now time to introduce our mystery guest. In 1987, Congress directed EPA to broaden its search for water quality criteria for toxic compounds, beyond numerical criteria for each pollutant, to include "biological monitoring and assessment."⁵¹¹ States were to adopt criteria on the basis of this monitoring "consistent with" EPA's guidance.⁵¹² They are just beginning to do so.

The theory of biological monitoring and assessment is that the best way to determine the impacts of toxic discharges on a system is to study the system and see.⁵¹³ In the case of a receiving water, this means comparing the life of the affected stream segment to similar, unimpaired segments elsewhere. If degradation is shown, then remedial action is required. Nothing would seem more logical … since the initial logic of water quality standards.

EPA is, commendably in this case, proceeding on this program with caution. It has issued no implementing regulations to date, and none are imminent.⁵¹⁴ Instead, in December 1990, EPA announced the issuance of two guidance documents, one to assist states in the development of water quality standards for wetlands (guidance that contains no numerical standards),⁵¹⁵ and a second to assist in the development of "Biological Criteria."⁵¹⁶ In EPA's words, these criteria "require direct measurements of the structure and function of resident aquatic communities to determine biological integrity and ecological function."⁵¹⁷ They may be expressed in "narrative" (e.g. "Aquatic life shall be as it naturally occurs") or numerical form.⁵¹⁸ Numerical criteria will describe the expected "species richness," the presence of indicator species, and distribution.⁵¹⁹ Both narrative and numerical criteria will rely on identification and assessment of healthy "reference waters."⁵²⁰ States should "develop values" for biological criteria by characterizing the aquatic communities of reference waters on either a [21 ELR 10559] site-specific (e.g. upstream) or regional (e.g. nearby) basis.⁵²¹ This illumination shed, the states are encouraged as a matter of "policy" to submit biological criteria programs as part of their triennial water quality standard review.⁵²²

According to EPA, approximately 20 states are currently in the process of developing or adopting biological water quality criteria.⁵²³ Programs in Arkansas, Florida, Maine, and North Carolina apparently have at least narrative criteria, and Ohio has gone on to numerical criteria.⁵²⁴ Ohio's program calls for an assessment of two indicator fish species and one macro-invertebrate (insect) to develop an aquatic life use value.⁵²⁵ These values are compared to those of a "least impacted site."⁵²⁶ The aquatic life use values of all species must meet or exceed 25 percent of those on the reference (least impacted) site.⁵²⁷

What happens next is unclear. It is possible that least impacted site numbers will be added to NPDES permits, as were numbers for whole effluent testing.⁵²⁸ It is possible that aquatic life use values below 25 percent, or another percentage, will simply trigger something akin to a TRE.⁵²⁹

It is also obvious, however, that we are dealing with measurements here far less precise than numbers of test organisms in a dilution chamber, with a handy control chamber for reference next door. Where one would get "least impacted site values" for, say, the Lower Mississippi River does not come immediately to mind. It is also obvious that the TRE is easier said than done. Most polluted rivers worth their salt have more than one contributing cause, be it only contributions from nonpoint runoff. How a TRE will be expected to remedy results from other sources is another fair question. It will doubtless be raised and contested.

On its darker side, this program is also an invitation for industry to make the arguments it has been foreclosed from making since the advent of the 1972 technology-based Clean Water Act: "Our discharges aren't harming anything." It is not hard to foresee calls for "biological monitoring" after, say, a failed whole effluent test, to determine whether the industry is "really doing anything wrong."⁵³⁰ This call is quite seductive. It could save compliance costs. It postpones a difficult enforcement decision. The states will find it most difficult in practice to stand firm and make these assessments genuinely supplemental. Used where they are able to be used and as an adjunct to other regulatory programs, biological criteria can provide another useful "reality check." While a passed criteria test may not demonstrate that all is well, a failed test will certainly demonstrate that all is not.

Beyond this assistance biological criteria will provide, over time, as they are phased in, one more incentive for industry to get out of the toxic discharge business altogether. Which, by this time, should be the point.

XII. Towards Toxic Discharge Elimination

When you are up to your a in alligators, it is difficult to remember that your objective was to drain the swamp.

Bumper sticker wisdom, Louisiana (1990).⁵³¹

The objective of the Clean Water Act was to eliminate pollution discharge. Twenty years later, for even the most toxic compounds known to man, we do not have a discharge elimination program. Instead, we have six separate programs for regulating toxic discharges increasingly based on concepts of determining "acceptable" risk that characterized, and largely defeated, water pollution control efforts prior to 1972. For similar reasons, health-based standards failed long ago. Technology standards will move forward again only over EPA's unwilling body. State water quality standards are proving — once again — to be scientifically uncertain, politically manipulatable, infinitely litigable, and so variable as to encourage the flight of industry to the most permissive locations. Whatever Congress intended by abating toxic pollution in "toxic amounts," the debate over what toxic amounts are could continue — with vigorous, and even informed, disagreement — for the life of the democracy. It is time to move on.

One path is the way we have already chosen, only more so. Congress could turn up the heat on the existing programs by establishing deadlines for new EPA technology standards.⁵³² It could, further, establish federal water quality criteria for toxic pollutants and a single, federal methodology for their application, reducing the variation in state standards and permit limits. The prognosis for these efforts is intensified warfare, with EPA thrust, unhappily, back into the lines.⁵³³ Against whole categories of industries unwilling to comply and still able to litigate each standard and permit level,⁵³⁴ the prognosis is also [21 ELR 10560] for grudging reductions at high transaction costs,⁵³⁵ over decades.

The alternative is to end the agony and fix a timetable for the elimination of toxic discharges. Indeed, Congress should fix several timetables, based on relative risk. Science may not be able to set absolute risk numbers, but it can identify categories of greater and lesser risk.⁵³⁶ Industry can obtain adequate lead time for the necessary process changes. Economists can identify incentives that will encourage industry to arrive on or ahead of schedule.⁵³⁷ And the engineers can, at last, design for the inevitable. To the extent that certain industries are participating willingly and even aggressively in voluntary pollution prevention and toxic reduction programs, a mandate this firm should only strengthen their hand, and lessen their competitive disadvantage. The critical elements of this alternative are that the mandate, lists, and schedules be made congressional, and therefore beyond litigation, and that they be made firm, When it finally becomes time to make batteries without PCBs, paint without lead, and refrigerants without CFCs, industry finds the way.⁵³⁸ At which point, ambient levels of these toxins drop precipitously.⁵³⁹

We will never, of course, by these means or any other, see zero discharge. The exceptions to even the most stringent prohibitions have ways of bending the rule, and nonpoint and other contributions of toxics to the nation's waters are at present, less manageable. But in this life we manage what we can. We can abate point source toxic discharges with certainty, with fairness to industries wherever located, with adequate lead time and with incentives for those who have the will to arrive ahead of schedule. Or we can regulate toxic pollution … forever.

1. The Clean Water Act was formerly known as the Federal Water Pollution Control Act. 42 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 001-068.

2. 33 U.S.C. § 1251(a)(3), ELR STAT. FWPCA 003.

3. 42 U.S.C. §§ 4321-4370a, ELR STAT. NEPA 001-014.

4. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 001-050.

5. G. SANTAYANA, THE LIFE OF REASON (1905). See also G. HEGEL, PHILOSOPHY OF HISTORY (1832): "What experience and history teach is this — that people and governments never have learned anything from history, or acted on principles deduced from it."

6. Water Pollution Control Act, ch. 758, Pub. L. No. 80-845, 62 Stat. 1155 (1948); Water Pollution Control Act Amendments of 1956, ch. 518, Pub. L. No. 84-660, 70 Stat. 498; Federal Water Pollution Control Act Amendments of 1961, Pub. L. No. 87-88, 75 Stat. 204; and Water Quality Act of 1965, Pub. L. No. 89-234, 79 Stat. 903. For a review of pre-1972 programs, see Hines, Nor Any Drop to Drink: Public Regulation of Water Quality: Part I: State Pollution Control Programs, 52 IOWA L. REV. 186 (1966); Part II: Interstate Arrangements for Pollution Control, 52 IOWA L. REV. 932 (1966); and Part III: The Federal Effort, 52 IOWA L. REV. 799 (1967). This approach is retained in Clean Water Act § 303, which requires states to designate a "use" for each of its waters and "water quality criteria" supporting these uses, 33 U.S.C. § 1313(c)(2)(A), ELR STAT. FWPCA 030, and to take remedial action if the waters fail to meet the criteria, 33 U.S.C. § 1313(d), ELR STAT. FWPCA 030. For an overview of the theory and practice of water quality standard programs, see 2 W. ROGERS, ENVIRONMENTAL LAW, §§ 4.16-4.19 (West 1986).

7. States retain wide latitude to establish their own uses for waters based on their "use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation." Clean Water Act § 303(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A), ELR STAT. FWPCA 030. See also Mississippi Commission on Natural Resources v. Costle, 625 F.2d 1269, 10 ELR 20931 (5th Cir. 1980) (affirming broad state discretion in establishing the "use" component of their water quality standards).

8. See S. REP. NO. 414, 92nd Cong., 2d Sess., reprinted in 1972 U.S. CODE CONG. & ADMIN. NEWS 3668, 3730.

9. State water quality criteria are to "protect the public health or welfare, enhance the quality of water and [somewhat opaquely] serve the purposes of this chapter." In practice, these criteria may be numerical (e.g., 0.05 miligrams per liter) or "narrative" (e.g., "not unreasonably harmful to aquatic life"). 40 C.F.R. § 131.1(b) (form of criteria). EPA is to develop and publish its own water quality criteria to assist the states in the adoption of their standards. Clean Water Act § 304(a), 33 U.S.C. § 1314(a), ELR STAT. FWPCA 031. EPA's current criteria are contained in U.S. EPA, QUALITY CRITERIA FOR WATER (1986), popularly known as the "Gold Book."

10. See, e.g., U.S. EPA, QUALITY CRITERIA FOR WATER 116-119, Table 10 (1976) (the "Red Book"). The most striking aspect of many criteria is the uneven quantity and inconclusive quality of the studies cited. Compare QUALITY CRITERIA FOR WATER (1986), supra note 9, criterion and rationale for malathion (studies of effects on rainbow trout, bluegill, fathead minnows, shrimp, and oysters, among others) with criteria for vinyl chloride (no tests have been made on freshwater or saltwater organisms and "no statement can be made concerning acute or chronic toxicity.") These criteria are of course only summaries of existing research, but they reflect the most current and relevant information available.

11. See, e.g., QUALITY CRITERIA FOR WATER (1986), see infra note 9, aquatic life summary and national criteria for chromium and copper.

12. See the extrapolations in Hercules v. EPA, 598 F.2d 91, 103, 8 ELR 20811 (1978). Although these calculations were made for the purpose of a health-based standard, see infra text accompanying notes 61-134, they illustrate the process for determining mortality to aquatic life.

13. See QUALITY CRITERIA FOR WATER (1976), supra note 10, at 38, rationale for chromium ("Knowledge of the harmful human health effects of hexavalent chromium has been obtained almost entirely from occupational health effects"); but see QUALITY CRITERIA FOR WATER (1986), Appendix B (Criteria based mostly on consumption of contaminated water and aquatic organisms assumed to have bioconcentrated pollutants from the water. For the vast majority of pollutants, other sources of exposure, such as air, nonaquatic diet, and dermal, were not used due to lack of data).

14. See NATIONAL WILDLIFE FEDERATION, A PRESCRIPTION FOR HEALTHY GREAT LAKES: REPORT OF THE PROGRAM FOR ZERO DISCHARGE 40-41 (1991) (EPA uses a fish consumption rate of 6.5 grams fish per day per person to set water quality standards. However, a survey revealed that 5 percent of Wisconsin residents eat 63.4 grams or more each day; therefore, for the Great Lakes Basin, the NWF recommended using a fish consumption rate of 50 grams per day). See also LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY, DOCUMENTATION OF NUMERICAL CRITERIA FOR HUMAN HEALTH PROTECTION IN THE 1989 WATER QUALITY STANDARDS REVISION 1-4 (1989) (Louisiana used a 20 grams per day fishconsumption rate based on U.S. Department of Agriculture statistics); and U.S. EPA, TECHNICAL SUPPORT DOCUMENT FOR EPA's SEPTEMBER 12, 1990 APPROVAL/DISAPPROVAL OF MARYLAND'S WATER QUALITY STANDARDS REVISION 18-20 (1990) ("Various research has indicated that the use of an average rate of fish consumption may not be adequate to protect particular subgroups of the population, such as sport fishermen and, particularly, subsistence fisherman.").

15. See Mississippi Commission on Natural Resources v. Costle, 625 F.2d 1269, 10 ELR 20931 (5th Cir. 1980) (variations in dissolved oxygen).

16. See Houck, Wagner & Elstrott, To Restore Lake Pontchartrain, Greater New Orleans Expressway Commission (1989) at 7, 8, 55-70.

17. See, e.g., EPA, NATIONAL WATER QUALITY INVENTORY: 1986 REPORT TO CONGRESS (1986).

18. Id. at 7, 71 (identifying "monitoring" as a "continuing special need"). See also EPA, ASSESSMENT OF STATE NEEDS FOR TECHNICAL ASSISTANCE IN NPDES PERMITTING, PROGRAM EVALUATION DIVISION (Apr. 25, 1984) at III-11, 12. Congress has long recognized the "monitoring gap" in water quality standard-based programs, particularly for toxic pollutants: "As Congress recognized in enacting the Clean Water Act of 1977, the state-of-the-art ability to monitor and detect toxic pollutants is limited. Most of the toxic pollutants were relatively unknown until only a few years ago, and only on rare occasions has EPA regulated, or has industry monitored or even developed methods to monitor for these pollutants…. Moreover, state-of-the-art techniques involve the use of expensive, sophisticated equipment, with costs ranging as high as $ 200,000 per unit." 44 Fed. Reg. 62204, 62208 (Oct. 29, 1979). The problem continues in 1991. See Federal Monitoring Beset by Gaps, Duplication Despite Large Expenditures, State Official Says, Env't Rep. Current Developments (BNA), May 17, 1991, at 133.

19. See Mississippi Commission on Natural Resources, 625 F.2d at 1269, 10 ELR at 20931.

20. See supra note 9. See also the general criteria for water quality standards in Louisiana. LA. ADMIN. CODE tit. 33, § IX.1113(B) (1989).

21. See ASSESSMENT OF STATE NEEDS FOR TECHNICAL ASSISTANCE IN NPDES PERMITTING, supra note 18, at III-9, 10 (Most states do not use sophisticated modeling techniques in deriving effluent limitations because they lack the necessary knowledge and tools).

22. Virtually every proceeding known to this author involving the water quality impacts of even the best-studied discharges has been a battle of opposing experts and inconclusive research. See Reserve Mining Co. v. EPA, 514 F.2d 492, 5 ELR 20596 (8th Cir. 1975) (In reviewing studies of public harm caused by the discharge of asbestos fibers, the court could not conclude that the probability of harm was greater than 50 percent; however, since the presence of the fibers posed some health risk — "a reasonable medical concern for the public health" — abatement of the health hazard was required), and 2 RODGERS, supra note 6, at 250-51, that discusses the difficulty in assessing the factors which make up the narrative standards).

In Louisiana, controversies over the effects of gypsum dumping in the Mississippi River, shell dredging in Lake Pontchartrain, dioxin pollution, and discharges of produced waters in oil production illustrate these same uncertainties. In the gypsum controversy, although EPA concluded that increases in certain pollutants would be within numerical standards, it was unable to make definitive conclusions on sediment contamination and bioconcentrations affecting aquatic life. EPA, WATER QUALITY EVALUATION OF PROPOSED EFFLUENT LIMITS FOR THE FOUR MISSISSIPPI RIVER PHOSPHOROUS FERTILIZER PLANTS IN LOUISIANA 1, 34-35 (Feb. 25, 1986). EPA noted that data needed to be collected during the life of the permits to address these and other issues. Id. See also LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY, DRAFT REPORT: EVALUATION AND PROJECTION OF WATER QUALITY IMPACTS FROM NUTRIENT LOADING 1, 49-50 (Dec. 17, 1986) (Some impacts could not be quantitatively projected and the DEQ would continue to qualitatively assess possible effects of the mass phosphorus loading due to the gypsum discharges). For the same uncertainties in the shell dredging controversy, see In re Dravo Basic Materials Co., Proceedings Under the Louisiana Environmental Quality Act LA.R.S. 30:2001 et seq., Findings of Fact and Conclusions of Law (Louisiana DEQ May 10, 1990) (The proposed control strategy is inadequate to prevent turbidity plumes from adversely affecting grassbeds); Houck et al., supra note 16, at 174-75; and U.S. ARMY CORPS OF ENGINEERS, FINAL ENVIRONMENTAL IMPACT STATEMENT ON SHELL DREDGING IN LAKE PONTCHARTRAIN AND MAUREPAS, LOUISIANA (1988). For these same issues in the oil field produced waters context, see SPECIAL REVIEW REPORT: EPA IS NOT ADEQUATELY CONTROLLING THE NEGATIVE IMPACTS OF OIL AND GAS ACTIVITIES ON LOUISIANA COASTAL WETLANDS 1, 8 (1990), and Rainey, et al., Ground Water and Oil Field Waste Sites: A Study in Vermillion Parish, 142 J. LA. ST. MED. SOC'Y 35 (1990) (Addressing the question whether oil field waste should be classified as hazardous, the study suggested that further study needed to be done "since the long term effects of low-dose exposure is as yet unknown"). For a contemporary discussion of the uncertainty of dioxin impacts, see infra text accompanying notes 331-446.

23. See ASSESSMENTS OF STATE NEEDS, supra note 18, at III-9-12.

24. Id. at III-9, 10.

25. Id. at III-9.

26. Telephone interview with Michael Waldon, Department of Civil Engineering, University of Southwestern Louisiana, consultant to Louisiana DEQ (May 23, 1991). To a large extent, these differences are a function of the amount of information available in developing the model and making the predictions. Id.

27. See infra text accompanying notes 271-74 (differences in PCB levels based on application factors) and 372 (differences in dioxin levels).

28. See generally ANDERSON, MANDELKER, & TARLOCK, ENVIRONMENTAL PROTECTION LAW AND POLICY 51-58 (1984).

29. In re Dravo Basics Materials Co., Findings of Fact and Conclusions of Law (Louisiana DEQ, May 10, 1990).

30. Houck et al., supra note 16.

31. U.S. ARMY CORPS OF ENGINEERS, supra note 16.

32. Houck et al., supra note 16, at 5, 6.

33. More than 175 industrial facilities discharge into the Mississippi River, for example, between Louisiana and the Gulf of Mexico. P. ROMANOWSKY, LA. DEQ, PROGRESS IN THE DEVELOPMENT OF LOUISIANA'S LOWER MISSISSIPPI RIVER WATER QUALITY MANAGEMENT PROGRAM 2 (1984), cited in Houck, This Side of Heresy, 61 TUL. L. REV. 289, 312 n. 128, (1986).

34. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY, 21ST ANNUAL REPORT 303 (1990), citing the 1988 National Water Quality Inventory to the effect that 70 percent of the assessed river miles and 74 percent of assessed lake acres supported state designated uses. Given the hit-or-miss nature of ambient water monitoring, this figure is probably generous. In Louisiana, only a little more than 60 percent of the assessed state waterbodies supported their designated uses in 1986 and 1987. LA. DEQ, 1988 WATER QUALITY INVENTORY 1. See infra text accompanying note 175.

35. See, e.g., ROGERS, supra note 6, at 281.

36. Id. at 284-85. For the practical difficulties in upgrading even a single water segment, see LA. DEQ, WASTE LOAD ALLOCATION FOR THE VERMILLION RIVER (Mar. 1987) (also containing a 90-page study and water quality assessment with a 102-page appendix of yet more surveys and data), cited in Houck, Ending the War: A Strategy to Save America's Coastal Zone, 47 MD. L. REV. 2, 358-405 (1988). According to Louisiana's Assistant Administrator for Water, as of 1987 the process for water quality upgrading had not led to the revision of a single discharge permit. Personal communication with Dale Givens, La. DEQ (Oct. 1987).

37. S. REP. NO. 414, 92d Cong., 2d Sess., reprinted in 1972 U.S. CODE CONG. & ADMIN. NEWS at 3671.

38. Referring to the inadequacy of controls on toxic pollutants, a Senate Report noted that even in 1982, "32 States cited water quality standards violations or use impairments due to toxic pollutants," and that regulation of toxic pollutants was proceeding at a slow pace. S. REP. NO. 50, 99th Cong., 1st Sess. 3 (1985). The report further states, "It is indeed ironic that we must now warn people against consuming fish caught in many areas cleansed of conventional pollutants but still contaminated by toxic pollutants." Id.

39. S. REP. NO. 414, reprinted in 1972 U.S. CODE CONG. & ADMIN. NEWS 3675.

40. Id. at 3669-3677.

41. 117 CONG. REC. 38809 (1971).

42. H. REP. NO. 911, 92d Cong., 2d Sess. 396 (1972), reprinted in LIBRARY OF CONGRESS, CONG. RESEARCH SERVICE, ENVIRONMENTAL POLICY DIVISION, A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, 865 (1973) [hereinafter LIBRARY OF CONGRESS].

43. LIBRARY OF CONGRESS, supra note 42, at 1304.

44. 117 CONG. REC. 38832 (1971).

45. LIBRARY OF CONGRESS, supra note 42, at 494.

46. Id. at 517.

47. S. REP. NO. 414, reprinted in 1972 U.S. CODE CONG. & ADMIN. NEWS at 3675.

48. LIBRARY OF CONGRESS, supra note 42, at 470.

49. FINAL REPORT OF THE NATIONAL WATER COMMISSION, WATER POLICIES FORTHE FUTURE 69, 70 (1973).

50. In the words of Senator Muskie: "Can we afford clean water? Can we afford rivers and lakes and streams and oceans which continue to make possible life on this planet? Can we afford life itself? Those 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." Senate Consideration of the Report of the Conference Comm. (Oct. 4, 1972), reprinted in SENATE COMM. ON PUBLIC WORKS, 1 LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, S. REP. NO. 1, 93d Cong., 1st Sess. 164 (1973) [hereinafter 1972 LEGISLATIVE HISTORY.]

51. S. REP. NO. 414, reprinted in 1972 U.S. CODE CONG. & ADMIN. NEWS at 3674.

52. Clean Water Act § 101(a)(1), 33 U.S.C. § 1251(a)(1), ELR STAT. FWPCA 003. In the same vein, during the following reauthorization the name of the Act was changed from "pollution control" to the "Clean Water Act," a more affirmative mission. Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566.

53. E.g., FINAL REPORT OF NATIONAL WATER COMMISSION, supra note 49. See also J. QUARLES, CLEANING UP AMERICA: AN INSIDER'S VIEW OF THE ENVIRONMENTAL PROTECTION AGENCY (1976) (Administration efforts to amend the Act), and Hearings on S.777 and S.2652 Before the Subcomm. on Environmental Pollution of the Senate Comm. on Environment and Public Works, 95th Cong., 2d. Sess. 9-10 (1982) (testimony of John Hernandez, Deputy Administrator, EPA) (zero discharge goal should not be binding).

54. Clean Water Act §§ 302, 303, 33 U.S.C. §§ 1312, 1313, ELR STAT. FWPCA 029. In retaining water quality standards, the Senate repeated its skepticism on their efficacy: "To the extent that water quality standards can be used to generate firm data on necessary effluent limitations this enforcement also should be available." LEGISLATIVE HISTORY, supra note 50, at 3712 (emphasis added). See generally id. at 3712-14.

55. Clean Water Act § 101(b), 33 U.S.C. § 1251(b), ELR STAT. FWPCA 003.

56. But see Clean Water Act § 101(a)(1)-(7), 33 U.S.C. §§ 1251(a)(1)-(7), ELR STAT. FWPCA 003.

57. E.g., Gaba, Federal Supervision of State Water Quality Standards Under the Clean Water Act, 36 VAND. L. REV. 1167 (1983); Hall, The Control of Toxic Pollutants under the Federal Water Pollution Control Act Amendments of 1972, 63 IOWA L. REV. 609 (1978); Hall, The Evolution and Implementation of EPA's Program to Control the Discharge of Toxic Pollutants to the Nation's Waters, 10 NAT. RES. LAW. 507 (1977); Parenteau & Taurman, The Effluent Limitations Controversy: Will Careless Draftsmanship Foil the Objectives of the Federal Water Pollution Control Amendments of 1972?, 6 ECOLOGY L.Q. 1(1976); Smith, Highlights of the Federal Water Pollution Control Act of 1972, 77 DICK. L. REV. 459 (1973); Van Putten & Jackson, The Dilution of the Clean Water Act, 19 U. MI. J.L. REF. 863 (1986); Zenar, The Federal Law of Water Pollution Control, FEDERAL ENVIRONMENTAL LAW 682 (1974); Note, The Federal Water Pollution Control Act Amendments of 1972, WISC. L. REV. 893 (1973).

58. EPA v. State Water Resources Control Board, 426 U.S. 200, 6 ELR 20563 (1976) (the water quality scheme focused, unworkably, on "the tolerable effects rather than the preventable causes of pollution").

59. E.g., E.I. Dupont de Nemours & Co. v. Train, 430 U.S. 112, 7 ELR 20181 (1977).

60. E.g., Weyerhauser v. Costle, 590 F.2d 1011 (D.C. Cir. 1978).

61. Environmental Defense Fund, Inc. v. EPA, 548 F.2d 62, 72, 73, 8 ELR 20785 (D.C. Cir. 1978).

62. See S. REP. NO. 414, reprinted in 1972 U.S. CODE CONG. & ADMIN. NEWS at 3674, 3678; see also Senator Muskie's testimony addressing the inadequacy of past federal water pollution statutes in controlling pollutants, including toxic pollutants, and maintaining environmental quality. 117 CONG. REC. 38, 797-804 (1971). See also the House Committee Report: "The Committee considers that the discharge of toxic pollution are [sic] much too dangerous to be permitted on merely economic grounds." 1972 LEGISLATIVE HISTORY, supra note 50, at 800 (House Report).

63. Clean Water Act § 307(a), 33 U.S.C. § 1317(a) (1972). This section directed the Administration to publish a "list" of toxic pollutants, § 1317(a)(1), and a "proposed effluent standard (or a prohibition) for such pollutant or combination of pollutants which shall take into account the toxicity of the pollutant, its persistance, degradability, the usual or potential presence of the affected organisms and the nature and extent of the toxic pollutant on such organisms," § 1317(a)(2).

64. Clean Water Act § 502(13), 33 U.S.C. § 1362(13), ELR STAT. FW-PCA 061: "The term 'toxic pollutant' means those pollutants, or combinations of pollutants, including disease-causing agents, which after discharge and upon exposure, ingestion, inhalation or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will, on the basis of information available to the Administrator, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring."

The legislative history discusses the function of the definitional section: "A definition of Toxic substance is provided to assist the Administrator in implementing his authority under section 307 to regulate toxic discharges. The definition provides a benchmark for evaluating those pollutants which in certain concentrations would have a particularly adverse impact on humans as well as other forms of life." 1972 LEGISLATIVE HISTORY, supra note 50, at 1495 (Senate Report).

65. Clean Water Act § 307(a), § 1317(a), ELR Stat. FWPCA 034.

66. Id.

67. 598 F.2d at 62, 8 ELR at 20765.

68. Id. at 89, 8 ELR at 20780.

69. Id. at 79, 8 ELR at 20774.

70. Id. at 86, 87, 8 ELR at 20778-79.

71. Id. at 88, 8 ELR at 20779.

72. Id.

73. Id.

74. Id. at 89, 8 ELR at 20780.

75. 598 F.2d 91, 8 ELR 20811 (D.C. Cir. 1978).

76. Id. at 98, 8 ELR at 20812.

77. Id. at 103 nn. 19, 22, 8 ELR at 20815 nn. 19, 22.

78. Id. at 103, 8 ELR at 20815.

79. Id. at 103, n. 23, 8 ELR at 20816 n. 23.

80. Id. at 115, 8 ELR at 20824.

81. Id. at 112, 8 ELR at 20821.

82. In the end, EPA regulated only six toxic substances under § 307(a): aldrin/dieldrin, DDT, endrin, toxaphene, benzidine and PCB. 40 C.F.R. § 129.

83. See for example, EPA's insistence in Hercules v. EPA on "considering" economic and technological feasibility under § 307(a), while at the same time vigorously denying that it was required to include these factors in its decision. 598 F.2d at 111-113.

84. Technology-based standards under §§ 304 and 311 are required to consider economic and technological factors. 33 U.S.C. §§ 1304, 1311, ELR STAT. FWPCA 031, 039.

85. See Ruckleshaus, Risk in a Free Society, 14 ELR 10190 (1984). Mr. Ruckleshaus was at the time the Administrator of EPA.

86. Natural Resources Defense Council, Inc. v. Fri, 3 ELR 20587 (D.D.C. 1973) (decree and stipulation).

87. Natural Resources Defense Council, Inc. v. Train, 5 ELR 20046 (D.D.C. 1974), rev'd, 519 F.2d 287, 5 ELR 20578 (D.C. Cir 1975).

88. 38 Fed. Reg. 24342 (1973).

89. Id.

90. Compare 41 Fed. Reg. 23575, 23578 (1976) ("the interests of responsible rulemaking are best served by giving at least some consideration to technological factors and the likely impact, if any, of the proposed regulations on the national economy") with Memorandum from Robert V. Zener, Associate General Counsel, EPA, to Dr. Donald A. Hilden, Dec. 14, 1972 ("Congress would appear to have intended that such cost and economic factors not be taken into account the decision whether or not to include a pollutant on the list") cited in Hall, supra note 57, at 642 n. 186.

91. 41 Fed. Reg. 23577 (1976).

92. 6 ELR 20588 (D.D.C. June 9, 1976). The case was filed as Environmental Defense Fund v. Train, No. 75-0172 (D.D.C., filed Feb. 6, 1975).

93. See Environmental Defense Fund, Inc. v. EPA, 598 F.2d 62, 69 n.20, 8 ELR 20765, 20768 n. 20 (D.C. Cir. 1978).

94. 6 ELR at 20588. The 65 pollutant categories are currently listed at 40 C.F.R. § 401.15.

95. 6 ELR at 20588.

96. Clean Water Act § 307(a)(1), 33 U.S.C. § 1317(a)(1), ELR STAT. FWPCA 034.

97. 6 ELR at 20588.

98. Id.

99. Clean Water Act §§ 302, 303, 33 U.S.C. §§ 1312, 1313, ELR STAT. FWPCA 029.

100. 6 ELR at 20588.

101. Clean Air Act § 112, 42 U.S.C. § 7412, ELR STAT. CAA 028.

102. Clean Air Act § 112(b)(1)(B), 42 U.S.C. § 7412(b)(1)(B), ELR STAT. CAA 028.

103. EPA's quandary in regulating toxics under the Clean Air Act became the subject of prolonged litigation and discussion, if only because it went for nearly 20 years without an alternative solution from the courts or from Congress. See, e.g., NRDC v. U.S. EPA, 824 F.2d 1146, 17 ELR 21032 (D.C. Cir. 1987) (vinyl chloride); NRDC v. EPA, 695 F. Supp. 48, 19 ELR 20344 (D.D.C. 1988) (benzene); Reed, The Trial of Hazardous Air Pollution Regulation, 16 ELR 10066 (1986) ("In fact, § 112 has proven so difficult to implement that some have written it off as unworkable." Id. at 10067). At bottom were the role of costs and technology in setting an "ample margin of safety." Id.

104. By 1980 EPA had listed only seven toxic air pollutants, and regulated only four; by 1984 EPA had proposed standards for only the remaining three, and listed no more. Reed, supra note 103, at 10068.

105. NRDC v. U.S. EPA, 824 F.2d 1146, 17 ELR 21032 (D.C. Cir. 1987).

106. See Lead Industries Ass'n v. EPA, 647 F.2d 1130, 10 ELR 20643; see also Union Electric Co. v. EPA, 427 U.S. 246, 6 ELR 20570 (1976).

107. 824 F.2d at 1146, 17 ELR at 21032.

108. Benzene Rules to Heed Vinyl Chloride Decision, through controls may be the some, EPA analyst says, Env't Rep. Current Developments (BNA), Jan. 15, 1988, at 2011, quoting an EPA "Air office analyst."

109. For a penetrating discussion of this case, see Dwyer, The Pathology of Symbolic Legislations, 17 ECOLOGY L.Q. 233 at 274-77. The author concludes that "[t]he arbitrary nature of EPA's choice assures the Agency the flexibility to weigh costs and technological feasibility when it adds an ample margin of safety to the acceptable risk level." Id. at 276. The author also concludes that the resulting levels of several post-vinyl chloride toxins were set in away to incur "relatively insignificant additional expenditures." Id. at n. 188.

110. Clean Air Act, § 112, 42 U.S.C. § 7412, ELR STAT. CAA 028.

111. Clean Water Act § 307, 33 U.S.C. § 1317, ELR STAT. FWPCA 034.

112. TSCA § 4, 15 U.S.C. § 2603, ELR STAT. TSCA 004.

113. SDWA § 1401, 42 U.S.C. § 300f, ELR STAT. SDWA 002.

114. FIFRA § 2, 7 U.S.C. § 136a, ELR STAT. FIFRA 002.

115. 29 U.S.C. § 655.

116. RCRA §§ 3004(v), 7003, 42 U.S.C. §§ 6924(v), 6973, ELR STAT. RCRA 016, 035.

117. 42 U.S.C. § 9621, ELR STAT. CERCLA 051.

118. For but a glimpse of this universe, see, e.g., B. COMMONER, MAKING PEACE WITH THE PLANET (1990) at 56-78; Applegate, The Perils of Unreasonable Risk: Information, Regulating Policy, and Toxic Substance Control, 91 COL. L. REV. (1991); Doniger, Federal Regulation of Vinyl Chloride: A Short Course in the Law and Policy of Toxic Substances Control, 7 ECOLOGY L.Q. 500 (1978); Page, A Generic View of Toxic Chemicals and Similar Risks, 7 ECOLOGY L.Q. 207 (1978); Ruckelshaus, supra note 85.

119. See Center for Energy and Environmental Management, "Risk Assessment and its uses in Environmental Regulation," May 22-23, 1991.

120. COHRSSEN & COVELLO, RISK ANALYSIS: A GUIDE TO PRINCIPLES AND METHODS FOR ANALYZING HEALTH AND ENVIRONMENTAL RISKS, (CEQ, 1989).

121. See supra text accompanying notes 75-80.

122. 53 Fed. Reg. 28496 (July 28, 1988).

123. American Petroleum Institute v. Costle, 665 F.2d 1176, 11 ELR 20916 (D.C. Cir. 1981).

124. Sierra Club v. Costle, 657 F.2d 298, 11 ELR 20455 (D.C. Cir. 1981).

125. For a full description of these and similar decisions and the influence of political and industry representatives on "scientific" decisionmaking, see "Good Science" in LASH, GILMAN & SHERIDEN, A SEASON OF SPOILS 130-164 (1984). For an account of industry pressure on federal risk assessments for carcinogens, see EPSTEIN, THE POLITICS OF CANCER 319-464 (1979) and B. COMMONER, supra note 118, at 56-78. For the extent of White House and OMB influence on other specific EPA rulemakings, see Houck, President X and the New (Approved) Decision making, 36 AM. U. L. REV. 535 (1987) and Olson, The Quiet Shift of Power: Office of Management and Budget Supervision of Environmental Protection Agency Rulemaking under Executive Order 12,291, 4 VA. J. NAT. RESOURCES L. 1 (1984).

126. See Environmental Defense Fund v. Thomas, 627 F. Supp. 566, 16 ELR 20250 (D.D.C. 1986) ("OMB could withhold approval of certain context in the promulgation of any new EPA regulators, thereby encroaching on the independence and the expertise of the EPA." Id. at 570, 16 ELR at 20252); Oversight of the OMB Regulatory Review and Planning Process: Hearings Before the Subcomm. on Intergovernmental Relations of the Senate Comm. on Gov't Affairs, 99th Cong., 2d Sess. 71 (1986); Role of OMB in Regulation: Hearings before the Subcomm. on Oversight and Investigations of the Comm. on Energy and Commerce, 97th Cong., 1st Sess. (1981); ROSENBERG, REGULATORY MANAGEMENT AT OMB, printed in SENATE COMM. ON GOVERNMENTAL AFFAIRS, 99TH CONGRESS, 2D SESS., EVOLVING RULES AND FUTURE ISSUES 185 (Comm. Print 1986); GREEN & WAITZMAN, BUSINESS WAR ON THE LAW: ANALYSIS OF THE BENEFITS OF FEDERAL HEALTH/SAFETY ENFORCEMENT (1981); In short, the pressure was known to Congress, and on its mind.

127. Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2339 (1990).

128. Clean Air Act Amendments § 301, Clean Air Act § 112, ELR STAT. CAA 28.

129. Id. at 33.

130. Id.

131. Clean Air Act Amendments § 303, Clean Air Act § 112 note, ELR STAT. CAA 44.

132. RCRA § 3004(m), 42 U.S.C. § 6924(m), ELR STAT. RCRA 014.

133. 51 Fed. Reg. 40572 (1986).

134. Hazardous Waste Treatment Council v. U.S. EPA, 886 F.2d 355, 19 ELR 21398 (D.C. Cir. 1989).

135. 123 CONG. REC. 39171 (1977), reprinted in LEGISLATIVE HISTORY, Vol. 3, at 426.

136. See EPA, WATER QUALITY IMPROVEMENT STUDY (Sept. 1989). Both modeling and ambient water quality modeling showed significant redirections in BAT-regulated pollutants following the installation of BAT. Id. at ix.

137. See infra text accompanying notes 213-14.

138. See infra text accompanying notes 157-65. The Clean Water Act predicated best practicable technology (BPT) on a comparison of "the total cost of application" and the consideration of other factors, Clean Water Act § 304(b)(1)(B), 33 U.S.C. § 1314(b)(1)(B), ELR STAT. FWPCA 031; best available technology (BAT) required the consideration of costs, Clean Water Act § 304(b)(2)(B), § 1314(b)(2)(B), ELR STAT. FWPCA 031, but no cost/benefit comparison, setting the stage for considerably more stringent limitations. See Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 9 ELR 20284 (D.C. Cir. 1978). BPT was to be achieved by 1977, and BAT by 1983. Clean Water Act § 301(b)(1)(A), (b)(2)(A), 33 U.S.C. § 1311(b)(1)(A), (b)(2)(A), ELR STAT. FWPCA 025.

139. 1977 LEGISLATIVE HISTORY, Vol. 3, at 326.

140. Id. at 525.

141. 123 CONG. REC. 38978 (1977) (statement of Rep. Johnson), reported in 1977 LEGISLATIVE HISTORY, Vol. 3, at 355.

142. Clean Water Act § 301(b)(2)(F), 33 U.S.C. § 1311(b)(2)(F), ELR STAT. FWPCA 025.

142. Clean Water Act § 301(b)(2)(F), 33 U.S.C. § 1311(b)(2)(F), ELR STAT. FWPCA 025.

143. The Natural Resources Defense Council has made implementation of the Clean Water Act a priority for itself and, to a considerable extent, for EPA. See, e.g., cases cited at notes 86, 87, 92, 105, 150, 199, 212, 220, 456, and 457.

144. Industry challenges to technology standards include: Armco, Inc. v. U.S. EPA, 869 F.2d 975, 19 ELR 20769 (6th Cir. 1989); American Petroleum Inst. v. U.S. EPA, 858 F.2d 261, 19 ELR 20317 (5th Cir. 1988) (oil and gas industry); Texas Municipal Power Agency v. EPA, 836 F.2d 1482, 18 ELR 20538 (5th Cir. 1988) (electric utility industry); American Petroleum Inst. v. EPA, 787 F.2d 965, 16 ELR 20610 (5th Cir. 1986) (oil and gas industry); Kennecott Copper Corp. v. EPA, 780 F.2d 445, 1 ELR 20435 (4th Cir. 1985) (nonferrous metals manufacturing industry), cert. denied, 107 S. Ct. 67 (1986); Cerro Copper Products Co. v. Ruckelshaus, 766 F.2d 1060 (7th Cir. 1985) (copper-forming industry); Reynolds Metals Co. v. U.S. EPA, 760 F.2d 549, 15 ELR 20736 (4th Cir. 1985) (metal and brewing industries); National Ass'n of Metal Finishers v. EPA, 719 F.2d 624, 13 ELR 21042 (3d Cir. 1983) (electroplating industry), rev'd on other grounds sub nom. Chemical Mfrs. Ass'n v. NRDC, 470 U.S. 116, 15 ELR 20230 (1985); American Petroleum Inst. v. EPA, 661 F.2d 340, 12 ELR 20076 (5th Cir. 1981) (oil and gas industry); American Paper Inst. v. EPA, 660 F.2d 954, 11 ELR 20865 (4th Cir. 1981) (paper industry); Association of Pacific Fisheries v. EPA, 615 F.2d 794, 10 ELR 20336 (9th Cir. 1980) (seafood processing industry); BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 9 ELR 20609 (1st Cir. 1979) (organic pesticide industry), cert. denied, 444 U.S. 1096 (1980), remanded regulations upheld, 614 F.2d 21, 10 ELR 20150 (1st Cir. 1980); Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 9 ELR 20284 (D.C. Cir. 1978) (pulp and paper industry); American Iron & Steel Inst. v. EPA, 568 F.2d 284, 7 ELR 20738 (3d Cir. 1977) (iron and steel industry); Marathon Oil Co. v. EPA, 564 F.2d 1253 (9th Cir. 1977) (oil and gas industry); American Paper Inst. v. Train, 543 F.2d 328, 6 ELR 20729 (D.C. Cir. 1976) (paper and pulp industry), cert. dismissed, 429 U.S. 967 (1976); E. I. DuPont de Nemours & Co. v. Train, 541 F.2d 1018, 6 ELR 20371 (4th Cir. 1976) (inorganic chemical manufacturing industry), rev'd in part on other grounds, 430 U.S. 112, 7 ELR 20191 (1977); Tanners' Council of America, Inc. v. Train, 540 F.2d 1188, 6 ELR 20379 (4th Cir. 1976) (leather tanning industry); American Petroleum Inst. v. EPA, 540 F.2d 1023, 6 ELR 20748 (10th Cir. 1976) (oil and gas industry), cert. denied, 430 U.S. 922 (1977); FMC Corp v. Train, 539 F.2d 973, 6 ELR 20382 (4th Cir. 1976) (plastic and synthetic materials industries); American Frozen Food Inst. v. Train, 539 F.2d 107, 6 ELR 20485 (D.C. Cir. 1976) (frozen potato products); Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 6 ELR 20467 (2d Cir. 1976) (phosphorous manufacturing); American Iron & Steel Inst. v. EPA 526 F.2d 1027, 6 ELR 20068 (3d Cir. 1975), modified, 560 F.2d 589, 7 ELR 20624 (3d Cir. 1977) (iron and steel industry), cert. denied, 435 U.S. 915 (1978); American Meat Inst. v. EPA, 526 F.2d 442, 6 ELR 20029 (7th Cir. 1975) (meat products); CPC Int'l Inc. v. Train, 515 F.2d 1032, 5 ELR 20392 (8th Cir. 1975) (corn wet milling); Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 3 ELR 20642 (D.C. Cir. 1973) (cement manufacturers industry), cert. denied, 417 U.S. 921 (1977).

145. See Dupont, 430 U.S. at 112.

146. See Weyerhauser, 590 F.2d at 1011.

147. Id.

148. Id.; see also Association of Pacific Fisheries, 615 F.2d at 794.

149. Id.

150. Chemical Manufacturers Association v. U.S. EPA, 870 F.2d 177, 19 ELR 20989 (5th Cir. 1989), cert. denied sub nom. PPG Industries v. EPA, 110 S. Ct. 1936 (1990).

151. Rybachek v. U.S. EPA, 904 F.2d 1276, 20 ELR 20973 (9th Cir. 1990) (placer mining regulations).

152. Special Report, Effluent Guidelines Rulemaking Nears End; Litigation, Compliance Extensions Expected, Env't Rep. Current Developments (BNA), Jan 21, 1983, at 1629.

153. Id. at 1630.

154. Id.

155. Id.

156. Id., quoting Joey Shaw, a "Senior Envirnomental Associate" at the American Petroleum Institute.

157. Id. at 1631.

158. Id., quoting Joe Mahew, a "Water Programs Manager" for the Chemical Manufacturers Association.

159. Chemical Manufacturers Association v. U.S. EPA, 870 F.2d 177, 19 ELR 20989 (5th Cir. 1989).

160. PPG Industries v. EPA, 110 S. Ct. 1936 (1990).

161. Chemical Manufacturers Association v. U.S. EPA, 883 F.2d 253, 20 ELR 20076 (5th Cir. 1989).

162. Id.

163. Id.

164. Id.

165. New BAT Standards: Lowering the Ceiling or Raising the Floor?, 13 ELR 10002 (1983).

166. The European Community, for one, has adopted technology-based standards for water toxins for all of its member countries, with exception of Great Britian, which insists on retaining a water quality standards-based system, see COUNCIL OF EUROPEAN COMMUNITIES DIRECTIVE ON THE DISCHARGE OF DANGEROUS SUBSTANCES (May 1976), reprinted in Int'l Env't Rep. (BNA) 151:1201; see also Guruswamy, Papps, and Staney, The Development and Impact of an ECC Directive: The Control of Discharges of Mercury to the Aquatic Environment, J. OF COMMON MARKET STUDIES 72, 81 (Sept. 1983) (British system firmly adhered to, although it has produced little evidence of water quality improvement).

167. See infra text accompanying notes 441, 446, 538.

168. Association of Pacific Fisheries v. EPA, 615 F.2d 794, 10 ELR 20336 (9th Cir. 1980).

169. Chemical Manufacturer's Association v. U.S. EPA, 870 F.2d 177, 19 ELR 20989 (5th Cir. 1989).

170. Rybachek v. U.S. EPA, 904 F.2d 1276, 20 ELR 20973 (9th Cir. 1990).

171. See infra text accompanying notes 182, 215-16.

172. Special Report, The Clean Water Act Amendments of 1987, Env't Rep. (BNA), Sept. 1987 at 28.

173. See id. Companion legislation passed in the house by a margin of 340-83, id. at 30; the Conference bill passed unanimously, id. at 37; after a Presidential "pocket veto," identical legislation passed the House by 406-8, id. at 37, and the Senate 93-6, id. at 38; a subsequent Presidential veto was overriden in the House, 406-26 and in the Senate, 86-14. To the Congress, this was priority legislation.

174. LEGISLATIVE HISTORY at 1323 (remarks of Sen. Stafford).

175. Id.

176. See Epidemic of Cancer in Fish Cited as Indicator of Human Health Concerns, Env't Rep. Current Developments (BNA), Sept. 23, 1983, at 906, citing Rep. John Breaux.

177. Special Report, supra note 172, at 42. Similar reports came in on the Duwanish River of Washington. Id. at 45.

178. A Cancer "Epidemic" in Fish, NEWSWEEK, Feb. 20, 1984, at 66, with photos captioned "Sauger from Torch Lake with skin cancer: A warning to humans" and "Black River bullhead with lip tumor: Troubled Waters."

179. LEGISLATIVE HISTORY at 1305.

180. EPA, DEVELOPMENT OF WATER QUALITY-BASED PERMIT LIMITATIONS FOR TOXIC POLLUTION, 49 Fed. Reg. 9016 (Mar. 9, 1984).

181. See LEGISLATIVE HISTORY at 1425.

182. See id. at 1656, testimony of Rebecca Hammer.

183. Id. at 1424.

184. S. 1128, 99th Cong., 2d Sess., 131 CONG. REC. S8030 (1986). See Special Report, supra note 172, at 181-82.

185. LEGISLATIVE HISTORY at 1424-25.

186. Special Report, supra note 172, at 183-84.

187. Clean Water Act § 304(m), 33 U.S.C. § 1314(m), ELR STAT. FWPCA 033. The Section provides:

(m) Schedule for review of guidelines

(1) Publication

Within 12 months after February 4, 1987, and biennially thereafter, the Administrator shall publish in the Federal Register a plan which shall —

(A) establish a schedule for the annual review and revision of promulgated effluent guidelines, in accordance with subsection (b) of this section;

(B) identify categories of sources discharging toxic or nonconventional pollutants for which guidelines under subsection (b)(2) of this section and section 1316 of this title have not previously been published; and

(C) establish a schedule for promulgation of effluent guidelines for categories identified in subparagraph (B), under which promulgation of such guidelines shall be no later than 4 years after February 4, 1987, for categories identified in the first published plan or 3 years after the publication of the plan for categories identified in later published plans.

188. Clean Water Act §§ 303(c)(2)(B), § 1313(c)(2)(B), ELR STAT. FWPCA 030.

189. Clean Water Act § 304(l), 33 U.S.C. § 1314(l), ELR STAT. FWPCA 033.

190. Clean Water Act § 303(c)(2)(B), U.S.C. § 1313(c)(2)(B), ELR STAT. FWPCA 030.

191. S. REP. NO. 50, 99th Cong., 1st Sess., at 2 (1985).

192. OFFICE OF TECHNOLOGY ASSESSMENT, WASTES IN MARINE ENVIRONMENTS (Apr. 1987), at 28, 64, 72, and 85-204.

193. EPA REPORT TO CONGRESS ON THE DISCHARGE OF HAZARDOUS WASTES TO PUBLICLY OWNED TREATMENT WORKS, 51 Fed. Reg. 30167 (Aug. 22, 1986); 53 Fed. Reg. 47644 (Nov. 23, 1988).

194. Clean Water Act § 304(m), 33 U.S.C. § 1314(m), ELR STAT. FWPCA 033.

195. S. REP. NO. 50, 99th Cong., 1st Sess., at 24-25 (1985); this report is dispositive, as the House had no similar provision. See H.R. CONF. REP. NO. 1004, 99th Cong., 2d Sess., at 127 (1986).

196. Id.

197. 132 CONG. REC. 16430 (1986) reported, in 1987 LEGISLATIVE HISTORY at 626.

198. 53 Fed. Reg. 32584 (Aug. 25, 1988).

199. NRDC v. Reilly, Civ. No. 89-2980 (D.D.C., filed June 4, 1990).

200. 55 Fed. Reg. 80 (Jan. 2, 1990).

201. Id. at 81; the categories are Pesticide Chemicals, Offshore Oil and Gas Extraction, Hazardous Waste Treatment, Phase 1, Machinery Manufacturing and Rebuilding, and Coastal Oil and Gas Extraction.

202. NRDC v. EPA, Civ No. 79-3442 (D.D.C. revised settlement agreement, Apr. 5, 1990) (the Offshore Oil and Gas category).

203. Pesticide chemicals were directed to be regulated by the close of 1986. See Water Quality Act of 1987, § 308(f).

204. For the breakdown of regulated and unregulated components of the Machine Manufacturing and Rebuilding industry and the Hazardous Waste Treatment industry, see 55 Fed. Reg. at 94, 98; the volumes of toxic discharges from the subcategories not proposed for regulation exceed those from the subcategories to be regulated. Id.

205. Id. at 98.

206. The three are Organic Chemicals, Plastics and Synthetic Fibres; Pharmaceutical Manufacturing; and Pulp, Paper and Paperboard. Id. at 81.

207. Chemical Manufacturers Association v. U.S. EPA, 870 F.2d 177, 19 ELR 20984 (5th Cir. 1989).

208. 55 Fed. Reg. at 92.

209. Id. at 97.

210. The three are Petroleum Refining, Timber Products Processing, and Textile Mills. Id. at 81.

211. The eight were Drum Reconditioning, Hospital, Industrial Laundries, Paint Formulating, Solvent Recycling, Stripper Oil and Gas Extraction, Transportation Equipment Cleaning, and Used Oil Reclamation and Refining. Id.

212. A court order will. On April 23, 1991, a District Court declared EPA's § 304(m) approach unlawful and its characterization of the congressional deadline as "a target date" as close to obscure. NRDC v. EPA, No. 90-2 980 (D.D.C. April. 23, 1991).

213. EPA, REPORT TO CONGRESS: WATER QUALITY IMPROVEMENT STUDY 17 (1989) [hereinafter REPORT TO CONGRESS].

214. Id.

215. Memorandum of Rebecca W. Hanmer, Acting Assistant Administrator for Water, to William K. Reilly, Administrator, June 1989, at 8 (unpubished; on file with author).

216. Id. at 10.

217. See supra text accompanying notes 153, 193, 213.

218. BAT compared to BPT can obtain reduction up to 28 times better for discharges in iron and steel industries. Schafer, Methods for Abatement of Water Pollution, in PROCEEDING OF THE FIRST US/USSR SYMPOSIUM ON COMPREHENSIVE ANALYSIS OF THE ENVIRONMENT 117 (1976). For a comparison of compliance before and after BAT implementation see REPORT TO CONGRESS, supra note 213, at 31-34. For projections on the effectiveness of technology standards in pollution reduction for priority metals and organic chemicals under full implementation of BAT (for direct discharges) and pretreatment standards for existing sources (PSES) (for indirect discharges) (projection 98 percent removal of priority metals and 96 percent removal from priority organic chemicals) see WASTES IN MARINE ENVIRONMENTS 186-189, supra note 192. For these reasons the European Community has adopted a technology standard-based toxics pollution abatement program, see supra note 166, supplemented in several EC countries by effluent charges which have proven to be effective if the charges are sufficiently high. J. OPSCHOOR & H. VAR, ECONOMIC INSTRUMENTS FOR ENVIRONMENTAL PROTECTION 36-44 (1989).

219. Despite prophecies in 1970 of lost jobs and diminished economic growth due to environmental regulation, by 1990 the U.S. economy had experienced a 72 percent growth in real terms, accompanying an equally real growth in environmental regulation. COUNCIL ON ENVIRONMENTAL QUALITY, supra note 34, at 6-9.

220. NRDC v. U.S. EPA, 822 F.2d 104, 123, 17 ELR 21043 (D.C. Cir. 1987); cited with approval in Rybachek v. EPA, 904 F.2d 1276, 20 ELR 20973 (9th Cir. 1990).

221. See Chemical Manufacturers Association v. U.S. EPA, 870 F.2d 177, 19 ELR 20989 (5th Cir. 1989).

222. See supra text accompanying notes 157, 162.

223. See supra text accompanying notes 53, 125, 126, 172, 230.

224. See supra accompanying notes 125, 126.

225. Special Report, supra note 152, quoting Steven Schatzow, Director of EPA's Office of Water Regulations and Standards.

226. Although a district court has ordered EPA to end its delay in relaunching this process, NRDC v. EPA, No. 90-2980 (D.D.C. Apr. 23, 1991), the schedule and scope of EPA's effort is, at the time of this writing, uncertain.

227. The main criticisms of technology-based standards, beyond those expected from the regulated industries, come from scholars who would prefer "market" mechanisms as opposed to technology standards on grounds of flexibility and economic efficiency. For a sampling of literature, see ANDERSON, KNEESE & TAYLOR, ENVIRONMENTAL IMPROVEMENT THROUGH ECONOMIC INCENTIVES 10 (1977); Stewart, Economics, Environment and the Limits of Legal Control, 9 HARV. ENVTL. L. REV. 1 (1985); Hahn and Hecter, Marketable Permits: Lessons for Theory and Practices, 16 ECOLOGY L.Q. 361 (1989); Alar, Ecological Economics, 24 ENVTL. SCI. TECH. 12 (1990); Hahn and Stavins, Incentive-Based Environmental Regulation: A New Era from an Old Idea?, 18 ECOLOGY L.Q. 1, 1-42 (1991); Mintz, Economic Reform of Environmental Protection: A Brief Comment on a Recent Debate, 15 HARV. ENVTL. L. REV. 149 (1991).

228. See supra notes 165, 218. EPA found a 29 percent improvement in water quality compliance when BAT regulations are imposed compared with pre-BAT standards. EPA, REPORT TO CONGRESS, supra note 213.

229. Special Report, supra note 172, at 4, quoting Rebecca Hanmer.

230. For a discussion of the Reagan administration's restrictions on pollution control programs, see Houck, supra note 125; Lash, supra note 125.

231. Clean Water Act § 303(c)(2)(B), 33 U.S.C. § 1313(c)(2)(B), ELR STAT. FWPCA 030.

232. See supra notes 9, 20.

233. 33 C.F.R. § 122.44[d](1)(iv)(A).

234. Id. at (iv)(B).

235. Id. at (iv)(C).

236. State water quality standards are to be reviewed and revised every three years. Clean Water Act § 303, 33 U.S.C. § 1313, ELR STAT. FWPCA 029.

237. EPA, STATE COMPLIANCE WITH CLEAN WATER ACT REQUIREMENTS FOR ADOPTION OF WATER QUALITY CRITERIA FOR TOXIC POLLUTANTS, 55 Fed. Reg. 14350 (Apr. 17, 1990).

238. Id.

239. Id.

240. Id. The variations in the number of state criteria are demonstrated in the following list:

State	Aquatic	Health
Alabama	29	16
Alaska	32	108
Arizona	26	26
Arkansas	26	0
California	18	19
Colorado	64	61
Connecticut	0	0
Delaware	34	92
Florida	43	43
Georgia	30	90
Hawaii	75	77
Idaho	0	15
Illinois	n/a	n/a
Indiana	32	103
Iowa	10	0
Kansas	21	0
Kentucky	21	6
Louisiana	44	46
Maine	32	108
Maryland	13	14
Massachusetts	0	0
Michigan	n/a	n/a
Minnesota	4	0
Mississippi	1	9
Missouri	39	70
Montana	32	108
Nebraska	103	36
Nevada	35	30
New Hampshire	0	0
New Jersey	19	8
New Mexico	0	7
New York	49	43
North Carolina	27	35
North Dakota	31	15
Ohio	32	20
Oklahoma	74	105
Oregon	32	108
Pennsylvania	n/a	n/a
Rhode Island	32	0
South Carolina	0	0
South Dakota	32	108
Tennessee	0	10
Texas	30	0
Utah	31	10
Vermont	0	0
Virginia	41	13
Washington	31	0
West Virginia	68	63
Wisconsin	25	100
Wyoming	0	0
Am. Samoa	0	0
Marianas	0	0
D.C.	123	110
Guam	32	108
Puerto Rico	12	8
Virgin Islands	0	0
Trust Terr.	0	0

241. Id.

242. Id.

243. Id. at 14351.

244. Telephone interview with Carl Young, EPA Region 6, Water Quality Division (Jan. 18, 1991).

245. 55 Fed. Reg. 14350-14355 (1990). States that have developed their own criteria include Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New Mexico, New York, North Carolina, Ohio, Rhode Island, Tennessee, Texas, Virginia, Washington, West Virginia, and Wisconsin.

246. NATIONAL WILDLIFE FEDERATION AND CANADIAN INSTITUTE FOR ENVIRONMENTAL LAW AND POLICY, A PRESCRIPTION FOR HEALTHY GREAT LAKES at 41 (Feb. 1991).

247. J. HOROWITZ & L. BAZEL, AN ANALYSIS OF PLANNING FOR ADVANCED WASTEWATER TREATMENT 23 (1977), cited in Bazel, Water Quality Standards Maximum Loads and the Clean Water Act: The Need for Judicial Enforcement, 34 HASTINGS L.J. 1245 (1983).

248. OFFICE OF TECHNOLOGY ASSESSMENT, supra note 192, at 206.

249. EPA, PROGRAM EVALUATION DIVISION, OFFICE OF WATER QUALITY, ASSESSMENT OF STATE NEEDS FOR TECHNICAL ASSISTANCE IN NPDES PERMITTING (Apr. 25, 1984).

250. Id. at III-9.

251. Id. at III-10.

252. Id. at III-11.

253. Id. at III-12.

254. Id.

255. Id. at III-13.

256. Id.

257. For but a partial listing of guidance documents, see EPA, INTRODUCTION TO WATER QUALITY STANDARDS 25 (1988); EPA, BIOLOGICAL CRITERIA: NATIONAL PROGRAM GUIDANCE FOR SURFACE WATERS 44 (1990); EPA, FINAL GUIDANCE FOR IMPLEMENTATION OF REQUIREMENTS UNDER SECTION 304(l)OF THE CLEAN WATER ACT AS AMENDED F-1 (1988)(citing 11 final and 6 draft guidance documents for wasteload allocation alone); and see the list of 12 technical support documents, guidance manuals, and handbooks at EPA, REGION 6, Third Round NPDES Permit Implementation Strategy 9 (1989). This guidance covers every aspect of water quality standards-based permitting, including development of criteria, monitoring, modeling, and "use attainability analysis." A new wave of publications is currently being issued for water quality heightened based toxic substances control programs. See, e.g., draft of EPA, GUIDANCE ON ASSESSMENT AND CONTROL OF BIOCONCENTRATABLE CONTAMINANTS IN SURFACE WATERS (1991). The volume of these documents would indicate that EPA's enthusiasm for a water quality standards-based program, however ineffective, is by no means waning.

258. See K. HALL, supra note 57, at 628, n. 109 and 54 Fed. Reg. 23868 (1989) (inappropriate for EPA to prohibit mixing zones as requested by some commenters). See also Hercules v. EPA, 598 F.2d 91, 116, 8 ELR 20811 (D.C. Cir. 1978).

259. Gaba, Federal Supervision of State Water Quality Standards under the Clean Water Act, 36 VAND. L. REV. 1167, 1175 n. 41 (1983).

260. See, e.g., EPA, TECHNICAL SUPPORT DOCUMENT FOR WATER QUALITY-BASED TOXICS CONTROL 9, 33-34 (Sept. 1985) (Water quality criteria may be exceeded in the mixing zone but should not be acutely toxic to organisms passing through the mixing zone). See also LA. ADMIN. CODE tit. 33, § IX.1115(D)(9): "Mixing zones shall not preclude the occurrence of continuous water routes of the volume, area, and quality necessary to allow passage of free-swimming and drifting fish and aquatic life with no significant effects on their populations."

261. 54 Fed. Reg. at 23872.

262. Id.

263. EPA, TECHNICAL SUPPORT DOCUMENT FOR WATER QUALITY-BASED TOXICS CONTROL" (Sept. 1985).

264. Id. at 32.

265. See, e.g., LA. DEQ, CLARIFICATION OF MIXING ZONE RATIONALE (1989) (Toxic effluent limitations must be met at all points outside the zone of initial dilution.) See also text of Letter Jack V. Ferguson (EPA) to Marian Tannaly (La. DEQ) (Dec. 6, 1990) (concerning Implementation of Louisiana Water Quality Standards), Permit No. LA00004090, App. one, at 36.

266. Id.

267. LA. DEQ, CLARIFICATION, supra note 265.

268. EPA, TECHNICAL SUPPORT DOCUMENT, supra note 260, at 45. This formula is an algebraic rearrangement of the one used by the State of Louisiana interview with Dr. Michael Waldon, Department of Civil Engineer, University of Southwestern Louisiana, consultant to the Louisiana Department of Environmental Quality (Mar. 18, 1991). See also LA. DEQ, CLARIFICATION, supra note 265, at 1.

269. See infra accompanying note 420.

270. See Text of Letter Jack V. Ferguson (EPA), supra note 265, at 2 ("We will use … a zero concentration if there are no upstream data.")

271. NATIONAL WILDLIFE FEDERATION, supra note 14, at 43.

272. Id.

273. Id.

274. Clean Water Act § 303(d), 33 U.S.C. § 1313(d), ELR STAT. FWPCA 030.

275. Clean Water Act § 303(d), (c)(2)(A), 33 U.S.C. § 1313(d); (c)(2)(A), ELR STAT. FWPCA 030.

276. W. ROGERS, supra note 6, at 281.

277. Id.

278. Pederson, Turning The Tide on Water Quality, 15 ECOLOGY L.Q. 69 (1988).

279. EPA, TECHNICAL SUPPORT DOCUMENT, supra note 260, at 47-48.

280. Clean Water Act § 302, 33 U.S.C. § 1312, ELR STAT. FWPCA 029.

281. Clean Water Act § 302(b), 33 U.S.C. § 1312b, ELR STAT. FWPCA 029.

282. W. ROGERS, supra note 6, at 288. One recent illustration of EPA's reluctance to act under § 1312 may suffice. In April 1991, a U.S. District Court ruled that EPA had a mandating duty to establish TMDLs for Alaskan waters. Alaska's Center for Environment v. EPA, No. C90-595R (W.D. Wash. Apr. 15, 1991). Alaska had apparently made no identification of waters that were below water quality standards and in need of TMDLs … since 1979. The Court rejected EPA's argument that its failure to act under these circumstances was "discretionary." Id. See also Oklahoma v. EPA, 905 F.2d 595, 21 ELR 20206 (10th Cir. 1990), holding that EPA has a mandatory duty to require state water quality standards to ensure compliance with standards of a neighboring, downstream state. Whatever the outcomes of these cases on further appeal, they demonstrate clearly EPA's reluctance to make the politically difficult decisions implementing water quality standards that it requires of state water quality agencies. But, in fairness, cf. infra text accompanying note 392 (EPA "first-ever" TMDLs for dioxin discharges in the Columbia River Basin).

283. For this elegant reference, the author is indebted to his colleague Daniel Posin in The Coase Theorem: If Pigs Could Fly, 37 WAYNE L. REV. 89, 93 (1990).

284. W. ROGERS, supra note 6, at 282.

285. LEGISLATIVE HISTORY at 1309.

286. 33 U.S.C. (1314(l), ELR STAT. FWPCA 033.

287. 33 U.S.C. § 1313(c)(2)(B), ELR STAT. FWPCA 030. See supra text accompanying note 231. In 1987, only a handful of states had promulgated numerical criteria for toxic pollutants. See text accompanying note 182, testimony of Rebecca Hanmer.

288. Heineck, New Clean Water Act Toxics Control Initiatives, A.B.A. J., Spring 1989, at 10, 12.

289. See supra text accompanying notes 52, 58-60.

290. Clean Water Act § 304(l)(1)(A)(i), ELR STAT. FWPCA 033.

291. Id. at § 304(l)(1)(A)(i).

292. Id. at § 304(l)(1)(B).

293. Id. at § 304(l)(C).

294. Id. at § 304(l)(D).

295. Id. at § 304(l)(3).

296. See supra text accompanying notes 198-200.

297. Preliminary Lists of Toxic Hot Spots, Pollutant Sources Due from States April 1, Env't Rep. Current Developments (BNA), Mar 25, 1988, at 2369, quoting Geoff Grubbs, EPA Office of Water.

298. EPA, NATIONAL POLLUTANT= DISCHARGE ELIMINATION SYSTEM; SURFACE WATER TOXICS CONTROL PROGRAM, 54 Fed. Reg. 23868 (June 2, 1989).

299. EPA, GUIDANCE FOR IMPLEMENTATION OF REQUIREMENT UNDER SECTION § 304(l) OF THE CLEAN= WATER ACT AS AMENDED, 54 Fed. Reg. 23868 (June 2, 1989).

300. Id. at 23892. EPA has conducted the entire process for the State of Arizona. 55 Fed.= Reg. 51337 (Dec. 13, 1990=).

301. 54 Fed.= Reg. at 23869-70.

302. Id. at 288=66-67.

303. Id. at 28867.

304. Id. at 890.

305. Id. at 23882. The potential "collision" between point and nonpoint sources has been predicted, with what one could call wishful= optimism, "to breathe unexpected life" into the near-dormant nonpermit source program under Clean Water Act § 319, 33 U.S.C. § 1319, ELR STAT. FWPCA 049. See Heineck,= supra note 288, at 12.

306. See supra text accompanying note 290.

307. 54 Fed. Reg. at 23895.

308. Id. at 23890.

309. Id.

310. Id. at 28888.

311. EPA Rule on Toxic Hot Spots Issued; Nearly All Lists Acted On, Official Says, Env't Rep. Current Developments (BNA), June 9, 1989, at 326.

312. Water Pollution: Hundreds of Industries To Reduce Toxics Discharged into Nation's Waterways by 1993, Env't Rep. Current Developments (BNA), June 16, 1989, at 433.

313. Id.

314. Id.

315. Telephone interview with Rick Brandes, EPA Office of Waste Water Enforcement and Compliance (May 6, 1991).

316. Petitions by Environmental Groups could add many industries to § 304(l) list, Env't Rep. Current Developments (BNA), Aug. 4, 1989, at 627.

317. Emergency Planning and Community Right-to-=Know Act, 42 U.S.C. § 11001-11050, ELR STAT. EPCRA= 001-012.

318. Water Pollution, supra note 312.

319. NRDC v. EPA, 915 F.2d 1314, 20 ELR 21372 (9th Cir. 1990).

320. Id. at 1323-24.

321. Heineck, supra note 288, at 12 ("It certainly would have beena more rational process to first receive the states … to revise their water quality standards for toxics and then have the states prepare their lists….").

322. Id.

323. Westvaco Corp. v. U.S. EPA, 899 F.2d 1383, 20 ELR 20816 (4th Cir. 1990).

324. P.H. Glatfelter Co. v. U.S. EPA, 921 F.2d 516, 21 ELR 20656 (4th Cir. 1990).

325. Both cases were dismissed as premature. Id. On the other hand, industry efforts were successful in eliminating at least one papermill and one "hot spot" from the lists. 55 Fed. Reg. 41764 (Oct. 15, 1990).

326. See supra text accompanying note 275.

327. See supra text accompanying note 271. See also Heineck, supra note 228, at 12.

328. Telephone interview with Rick Brandes, supra note 315. According to Brandes, no statistics are available on the total number of ICS permits now in litigation.

329. Id.

330. For example, Union Underwear is reported to be proposing to abate its discharges of copper and other toxins into Kentucky's Lily Creek by a new pipeline that will convey these discharges into the considerably larger Lake Cumberland. Huffman, Kentucky Lawsuit, Nat'l Wildlife Federation Leader, Feb. 1991, at 8. See also Roll Coater, Inc. v. Reilly, Nos. 90-=2152, -3856, 21 ELR 21116 (7th Cir. May 16, 1991) (EPA approval of state-promulgated ICS not reviewable in federal court … shifting the ICS action to state agencies and state courts).

331. EPA, THE NATIONAL DIOXIN STUDY, TIERS, 3, 5, 6 AND 7, April 1986, at 1.

332. EPA, INTEGRATED RISK ASSESSMENT FOR DIOXINS AND FURANS FOR CHLORINE BLEACHING IN PULP AND PAPER MILLS, July 1990, at 1.

333. Id.

334. 49 Fed. Reg. 5831 (Feb. 15, 1984).

335. NATIONAL DIOXIN STUDY, supra note 331, at 2.

336. Webster, Downgrading Dioxin's Cancer Risk: Where's the Science?, J. PESTICIDE REFORM, Spring 1991, at 11.

337. See supra text accompanying note 95.

338. NATIONAL DIOXIN STUDY, supra note 331, at x, xi.

339. 49 Fed. Reg. 5831 (Feb. 15, 1984).

340. Id.

341. Id.

342. EDF v. EPA, No. 85-0973 (D.D.C. filed July 7, 1988).

343. Litigation: EPA Agrees in Consent Decree with Groups to Tackle Regulations of Releases of Dioxin, Env't Rep. Current Developments (BNA), July 29, 1988, at 427.

344. Hazardous Waste: Low Levels of Dioxin in Paper Products Found By EPA, Paper Industry in Joint Study," Env't Rep. Current Developments (BNA), Oct. 2, 1987, at 1441.

345. Id.

346. Id.

347. Water Pollution: EPA, Pulp and Paper Industry Propose Dioxin Contamination Study of 105 Mills, Env't Rep. Current Developments (BNA), Feb. 19, 1988, at 2189.

348. 14 Chem. Reg. Rep. (BNA) 1405 (1991).

349. Van Strum v. U.S. EPA, 680 F. Supp. 349, 351 (D. Or. 1987).

350. Water Pollution: Excessive Discharges of Dioxin Confirmed in EPA/Industry Pulp and Paper Mill Study, Env't Rep. Current Developments (BNA), July 7, 1989, at 507.

351. Id.

352. Id.

353. Id.

354. Id.

355. Interim Strategy for the Regulation of Pulp and Paper Mill Dioxin Discharges to Waters of the United States, Memorandum from Rebecca W. Hanmer, EPA Acting Assistant Administrator for Water to Water Management Division Directors and NPDES State Directors (Aug. 9, 1988). See EPA Steps Up Dioxin Discharge Controls for Pulp, Paper Mills in New Strategy Document, Env't Rep. Current Developments (BNA), Sept. 2, 1988, at 755.

356. EPA Steps Up Dioxin Discharge Controls, supra note 355, quoting EPA Acting Administrator for Water, Rebecca Hanmer.

357. See supra text accompanying note 339.

358. EPA Steps Up Dioxin Discharge Controls, supra note 355.

359. 55 Fed. Reg. 14351 (Apr. 17, 1990).

360. Strategy for the Regulation of Discharges of PHDDs and PHDFs from Pulp and Paper Mills to Waters of the United States," Memorandum from LaJuana S. Wilcher, EPA Assistant Administration, to Regional Water Management Division Directors, NPDES State Directors (May 21, 1990). Industry has sued to enjoin adoption of the policy by EPA Regional Offices, as unlawfully promulgated without observance of the Administrative Procedures Act. American Paper Institute v. U.S. EPA, 726 F. Supp. 1256, 20 ELR 20486 (S.D. Ala. 1989, amended Jan. 3, 1990). The court found the actions premature. Id. Whatever the substance of the strategy, its method of issuance reflects a government-wide tendency to avoid the APA that may, in turn, reflect a hostility to public scrutiny but may also reflect a need to avoid more hostile and authoritative scrutiny by the Office of Management and Budget. See supra text accompanying notes 125-26.

361. Water Pollution: Excessive Discharge of Dioxin Confirmed, supra note 350.

362. Water Pollution Dioxin Danger in Columbia River Fish Discounted in Study Done By Paper Industry, Env't Rep. Current Developments (BNA), Dec. 29, 1989, at 1446.

363. See, e.g., Water Pollution: CDC Official Criticizes Stance on Regulating Dioxin at House Hearings, Env't Rep. Current Developments (BNA), Aug. 3, 1990, at 658; Water Pollution: Pilot Study by EPA Would Determine Risk to Subsistence Fishers From Dioxin, Env't Rep. Current Developments (BNA), July 13, 1990, at 481; Dioxins: NIOSH Study Shows Increased Cancer Risk, But Not As Great As In Previous Research, Chem. Reg. Rep. (BNA), Feb. 8, 1991, at 1578; Carcinogens: U.S., International Officials Discuss Possible Changes to Classification System, Chem. Reg. Rep., Mar. 1, 1991, at 1647; Dioxins: EPA Proposes New Test Method For Detection of 17 Compounds, Chem. Reg. Rep., Feb. 22, 1991, at 1621; Dioxins: EPA Scientist Criticizes Contract Study on Risks From TCDD in Kraft Paper Products, Chem. Reg. Rep., Oct. 16, 1987, at 1120.

364. Water Pollution: Little Risk Seen in Dioxin From Paper Mills; Tighter Regulations Expected Anyway, EPA Says, Envt'l Rep. Current Developments (BNA), May 4, 1990, at 5.

365. Id.

366. See supra text accompanying note 186.

367. Water Pollution: Hundreds of Industries to Reduce Toxics Discharged Into Nation's Waterways By 1993, Env't Rep. Current Developments (BNA), June 16, 1989, at 433.

368. Id.

369. See supra notes 358, 361, 362 and infra text accompanying notes 377-396. See also Webster, supra note 336, at 11; International Paper plans to fight EPA reduction in dioxin allowance, Baton Rouge Morning Advocate, Apr. 11, 1991, at 5B.

370. Georgia: DNR Board Takes Steps to Pre-Empt Federal Action in State's Dioxin Standard, Env't Rep. Current Developments (BNA), Feb. 1, 1991, at 1749.

371. See Memorandum of William R. Diamond, EPA Standards and Applied Science Division, to Tudor T. Davies, Office of Science and Technology (Apr. 10, 1991), and attachment (on file with author).

372. Id.

373. As of March 1991, one state had aquatic criteria "proposed" and in two others, aquatic criteria were "expected." Id. attachment, Executive Summary.

374. The seven are Alabama, Georgia, Maryland, New Hampshire, New York, Tennessee, and Virginia. Id.

375. Id.

376. Id.

377. Water Pollution: Environmentalists, Residents Seek Action to Reduce Dioxin Pollution From Paper Mills, Env't Rep. Current Developments (BNA), July 22, 1988, at 388.

378. Water Pollution: EPA Gives N.C. Paper Mill Three Years to Meet Tennessee Water Quality Standards, Env't Rep. Current Developments (BNA), Feb. 3, 1989, at 2060.

379. Champion International Corp. v. U.S. EPA, 850 F.2d 182, 18 ELR 21372 (4th Cir. 1988).

380. Water Pollution: EPA Gives N.C. Paper Mill Three Years to Meet Tennessee Water Quality Standards, supra note 378.

381. Water Pollution: EPA Plans to Reissue Waste Water Permit For Champion Paper Mill By Late September, Env't Rep. Current Developments (BNA), Aug. 1, 1989, at 745.

382. Water Pollution: Dioxin Control Plan Approved By EPA For Champion Paper Mill in North Carolina, Env't Rep. Current Developments (BNA), June 22, 1990, at 366.

383. Id.

384. Water Pollution: Decision on Maryland's Dioxin Standard Expected to Have Impact on Other States, Env't Rep. Current Developments (BNA), June 22, 1990, at 360.

385. Water Pollution: Georgia Dioxin Standard Inappropriate, Will Be Formally Disapproved Soon, Says EPA, Env't Rep. Current Developments (BNA), Sept. 28, 1990, at 1096.

386. Water Pollution: EPA Criticized For Not Reporting Sampling Information on Dioxin in Fish, Env't Rep. Current Developments (BNA), Dec. 22, 1989, at 1430.

387. Id.

388. Litigation: Citizen Groups Sue EPA Over Strategies to Control Dioxin Discharges in Washington, Env't Rep. Current Developments (BNA), Dec. 14, 1990, at 1559.

389. Id.

390. Water Pollution: Dioxin Danger in Columbia River Fish, supra note 362; Water Pollution: EPA Criticized For Not Reporting Sampling Information on Dioxin in Fish, supra note 386.

391. Id.

392. Water Pollution: Multistate Dioxin Loading Standard Proposed By EPA For Columbia River Basin, Env't Rep. Current Developments (BNA), June 29, 1990, at 414.

393. Id.

394. Water Pollution: Multistate Dioxin Loading Standard Unrealistic, Unworkable, Industry Says, Env't Rep. Current Developments (BNA), July 20, 1990, at 505.

395. Water Pollution: EPA Sets Waste Load Allocation For Eight Pulp Mills in Northwest States, Env't Rep. Current Developments (BNA), Mar. 1, 1991, at 1932.

396. Id.

397. Water Pollution: Decision on Maryland's Dioxin Standard, supra note 384. Environmental organizations have subsequently brought suit against the Maryland standard. NRDC v. EPA, No. 3:91 CV00058 (E.D. Va. filed Jan. 29, 1991), digested in ELR PEND. LIT. 66127.

398. Water Pollution: Environmental Group Threatens to Sue EPA Over Virginia Dioxin Standard Submission, Env't Rep. Current Developments (BNA), Oct. 5, 1990, at 1124.

399. Water Pollution: Environmentalists Criticize EPA's Approval of Maryland Dioxin Standard, Env't Rep. Current Developments (BNA), Sept. 21, 1990, 1043.

400. Water Pollution: Virginia Dioxin Limit For Paper Mills Approved By EPA in Sequel to Maryland Action, Env't Rep. Current Developments (BNA), Mar. 8, 1990, at 1989.

401. See supra text accompanying note 286.

402. Water Pollution: Decision on Maryland's Dioxin Standard, supra note 384.

403. Water Pollution: Environmentalists Criticize, supra note 399.

404. Id.

405. EPA, TECHNICAL SUPPORT DOCUMENT FOR EPA'S FEBRUARY 25, 1991 APPROVAL OF VIRGINIA'S WATER QUALITY STANDARDS REVISION (undated), on file with author, at 31, n. 27.

406. Id. at 22.

407. Comments of Richard N. Burton to the Virginia State Water Control Board Re: Dioxin Water Quality Standards (May 14, 1990), Attachment to EDF v. Virginia State Water Control Board, No. HA-731-3 (Va. Cir. Ct. Richmond).

408. TECHNICAL SUPPORT DOCUMENT, supra note 405, at 6.

409. Id. at 8.

410. Id.

411. Id. at 11-12.

412. Id. at 8-12.

413. Id. at 13-14.

414. Id. at 14.

415. Id. at 15.

416. Id. at 17.

417. Id. at 18.

418. Id. at 19.

419. Id. at 20.

420. Id. at 18.

421. Id. at 18, 22 n. 16.

422. Id. at 24.

423. Id.

424. Id.

425. Water Pollution: Decision on Maryland's Dioxin Standard, supra note 384.

426. Water Pollution: Environmentalists Criticize, supra note 399.

427. Nichols, Bill would override DEQ Dioxin limits, New Orleans Times-Picayune, Apr. 19, 1991, at B8.

428. Id., quoting Katherine Johnson, spokesperson for the Boise Cascade paper company.

429. Webster, supra note 336, at 14.

430. See supra text accompanying note 391.

431. See supra text accompanying note 390.

432. See supra text accompanying note 417.

433. See supra text accompanying note 269, 420. Louisiana by contrast uses historic low flow, and the objection by EPA's Region VI, which uses mean low flow. See, e.g., EPA, RESPONSE TO COMMENTS FINAL PERMIT DECISION, PERMIT NO. LA0003648, JAMES RIVERS II INC., at 9, 10.

434. See supra text accompanying note 270.

435. See supra text accompanying note 413.

436. Water Pollution: Decision on Maryland's Dioxin Standard, supra note 384.

437. For a correlation between pollution and southern states, see The Nation's dump is the South, Study says, New Orleans Times-Picayune, Apr. 20, 1991, citing a study by the Institute for Southern Studies, a "nonprofit research group" in Durham, North Carolina.

438. Water Pollution: Decision on Maryland's Dioxin Standard, supra note 384, referring to standards in Maryland and Tennessee.

439. Water Pollution: Excessive Discharges of Dioxin Confirmed, supra note 350.

440. For a glimpse at the analytical work on toxins in Great Lakes states, see NATIONAL WILDLIFE FEDERATION, A PRESCRIPTION FOR HEALTHY GREAT LAKES, supra note 14, and supra text accompanying notes 271-74.

441. Water Pollution: Little Risk Seen in Dioxin From Paper Mills, supra note 364.

442. Id., referring to Sweden.

443. EPA will take another look at dioxin, New Orleans Times-Picayune, Apr. 11, 1991,at A-4.

444. Id.

445. Id.

446. See supra text accompanying note 441.

447. EPA, DEVELOPMENT OF WATER QUALITY-BASED PERMIT LIMITATIONS FOR TOXIC POLLUTANTS: NATIONAL POLICY, 49 Fed. Reg. 9016, 9017 (Mar. 9, 1984).

448. 45 Fed. Reg. 33290, 33512 (May 19, 1980).

449. 47 Fed. Reg. 52072, 52079 (Nov. 18, 1982).

450. EPA, supra note 447, at 9016.

451. 49 Fed. Reg. 38009 (Sept. 26, 1984). These regulations were supplemented in 1989 by EPA's final regulations on the "Surface Water Toxics Control Program," 54 Fed. Reg. 23868 (June 2, 1989).

452. 49 Fed. Reg. at 38009-10.

453. In the Matter of Kaiser Aluminum and Chemical Corp, NPDES Appeal No. 85-22 (EPA Admin. App. 1986).

454. Clean Water Act § 303(c)(2)(B), 33 U.S.C. § 1313(c)(2)(B), ELR STAT. FWPCA 030:

Whenever a State review water quality standards pursuant to paragraph (1) of this subsection, or revises or adopts new standards pursuant to this paragraph, such State shall adopt criteria for all toxic pollutants listed pursuant to section 307(a)(1) of this Act for which criteria have been published under section 304(a), the discharge or presence of which in the affected waters could the reasonably be expected to interfere with those designated uses adopted by the state, as necessary to support such designated uses. Such criteria shall be specific numerical criteria for such toxic pollutants. Where such numerical criteria are not available, whenever a State reviews water quality standards pursuant to paragraph (1), or revises or adopts new standards pursuant to this paragraph, such State shall adopt criteria based on a biological monitoring or assessment methods consistent with information published pursuant to section 304(a)(8).

455. Id. See also Clean Water Act § 304(a)(8), 33 U.S.C. § 1314(a)(8), ELR STAT. FWPCA 031, which provides: "The Administrator, after consultation with appropriate State agencies and within 2 years after [February 4, 1987], shall develop and publish information on methods for establishing and measuring water quality criteria for toxic pollutants on other bases than pollutant-by-pollutant criteria, including biological monitoring and assessment methods."

456. NRDC v. EPA, 863 F.2d 1420, 1430, 19 ELR 20225 (9th Cir. 1988) (oil and gas discharge regulations).

457. NRDC v. U.S. EPA, 859 F.2d 156, 9 ELR 20016 (D.C. Cir. 1988) (NPDES permit regulations).

458. Id. at 189-90.

459. EPA, supra note 447, at 9016. EPA analogized the use of effluent that proves to be toxic to its accepted use of biological oxygen demand (BOD) as a standard permit limitation; both express conditions of the water necessary to support aquatic life, rather than numerical limits on pollutants. Id. Further, EPA argued, § 308 of the Act allows it to require monitoring of all kinds, and § 301 allows it to impose limits where necessary to meet state standards, id. … which would justify the program as an aid to the states, but only where the states had toxicity limits in the first place … a circular-appearing argument.

460. See EPA, PERMIT WRITERS GUIDE TO WATER-QUALITY BASED PERMITTING FOR TOXIC POLLUTANTS (1987); EPA, TOXICITY REDUCTION EVALUATION PROTOCOLS FOR MUNICIPAL WASTEWATER TREATMENT PARTS, (1989); EPA, METHODS FOR AQUATIC TOXICITY IDENTIFICATION EVALUATIONS: PHASE I, (1988); PHASE II (1989), and PHASE III (1989).

461. EPA, TECHNICAL SUPPORT DOCUMENT FOR WATER QUALITY-BASED TOXICS CONTROL, EPA 440/4-85/032 (Sept. 1985).

462. Id. at 1.

463. Id. at 20.

464. Id. at 1.

465. Id. at 1.

466. Telephone interview with Maria L. Martinez, Environmental Scientist, EPA, Region VI (Apr. 23, 1990).

467. EPA REGION IV, THIRD ROUND NPDES PERMIT IMPLEMENTATION STRATEGY (adopted Apr. 1, 1987, revised Oct. 31, 1989), on file with author, at 7, 8.

468. Id.

469. Id.; see also Telephone interview, supra note 466.

470. Id.; see also EPA, supra note 461, at 57, 58.

471. See supra note 460.

472. See supra text accompanying notes 275-83, 326-29.

473. In 1988, Louisiana industries reported the discharge of 157 million pounds of toxic pollutants into surface waters. EPA Office of Toxic Substances, TOXICS IN THE COMMUNITY, 1988 (Sept. 1990), Table 5-6 at 122. This volume represented more than 40 percent of all toxic discharges in the nation, reported at 361 million pounds. Id.

474. EPA REGION IV, supra note 467.

475. Id. at 3.

476. Id. at 3; Telephone interview, supra note 466.

477. Telephone interview with Michael Morton, Permits Section, EPA Region VI (Jan. 22, 1991).

478. Id.

479. For one critique, among many, of EPA's pretreatment program, see Houck, Ending the War: Towards a Strategy to Save America's Coastal Zone, 47 MD. L. REV. 358, 383 (1988), and sources cited therein.

480. Telephone interview, supra note 477.

481. Id. (These figures include 19 municipal dischargers conducting TREs, 2 based on acute and 17 on chronic, and 23 industrial facilities, 2 for acute and 21 for chronic toxicity testing).

482. Id. See also NORCO permit No. LA 003522, p. 5 of Part II (example of process limit toxicity testing regulations); pp. 4, 5 (example of process limit permit reopener clause); p. 6 (example of wet limit for copper).

483. Clean Water Act § 301(a), 33 U.S.C. § 1311(a), ELR STAT. FWPCA 025 (illegal to discharge without permit); Clean Water Act § 505, 33 U.S.C. § 1365, ELR STAT. FWPCA 062 (citizen enforcement); Clean Water Act § 309, 33 U.S.C. § 1319, ELR STAT. FWPCA 035 (civil, criminal, and administrative penalties).

484. Pifher and Egan, Biomonitoring and Toxics Control: the POTW perspective, 4 NAT. RESOURCES & ENV'T 13, 15 (1989).

485. Id. at 48.

486. Id. See also EPA, supra note 466, at 67, 68, providing a case history in which failed biomonitoring tests led to further studies of stream impacts before remedial actions were undertaken. "The extreme toxicity of the effluent, particularly to fathead minnow, pointed to the need for toxicity reduction procedures. However, the company argued that phenolic compounds were probably causing the toxicity. These compounds, according to Nicklaus By-Products, were not persistent after discharge and lost their toxic effect after mixing. The company cited the lack of fish-kills and obvious stream degradation as evidence that toxicity was non-persistent." Id.

487. 54 Fed. Reg. 23875 (June 2, 1989).

488. Clean Water Act § 303(c)(2)(B), 33 U.S.C. § 1313(c)(2)(B), ELR STAT. FWPCA 030.

489. Letter of Maria L. Martinez, Environmental Scientist, Region VI, EPA, to Victoria McKinnon (Apr. 9, 1991), on file with author.

490. See supra text accompanying note 449.

491. See Niehaus, Clean Water Act Permitting: The NPDES Program at Fifteen, 2 NAT. RESOURCES & ENV'T 16 (1987); Pifher and Egan, supra note 484, at 15, 48 (1987).

492. See EPA, supra note 461, at 2, 3.

493. Id., See also Pifher and Egan, supra note 484.

494. Id., See also telephone interview, supra note 477.

495. EPA REGION IV, supra note 467.

496. Pifher and Egan, supra note 484, at 48.

497. Telephone interview, supra note 477.

498. Id.

499. See 54 Fed. Reg. 23878 (June 2, 1989).

500. See EPA, RESPONSE TO COMMENTS FINAL PERMIT DECISION, BOISE CASCADE CORPORATION, addressing 30 issues raised by pulp and paper mill applicants for NPDES permits (Mar. 18, 1981).

501. See NRDC v. U.S. EPA, 859 F.2d 156, 19 ELR 20016 (D.C. Cir. 1988), and NRDC v. EPA, 863 F.2d 1420, 19 ELR 20225 (9th Cir. 1988).

502. Id.

503. See supra note 491.

504. NRDC v. EPA, 863 F.2d at 1420.

505. NRDC v. U.S. EPA, 859 F.2d at 156.

506. Washington Polluters Strike No-Suit Deal, Environmental Protection News, Apr. 22, 1991, at 10.

507. Id. Under the Clean Water Act, state administrative orders preempt citizen enforcement action, Clean Water Act §§ 505(b)(1)(B), 309(g)(6), 33 U.S.C. §§ 1365, 1319, ELR STAT. FWPCA 062, 038.

508. Id.

509. This analysis bypasses the additional drawback of all effluent testing under the Clean Water Act, that the samples are taken under conditions controlled largely by the permittee and tested by laboratories of unknown reliability.

510. See EPA, supra note 461, at 2.

511. Clean Water Act § 304(a)(8), 33 U.S.C. § 1314a(8), ELR STAT. FWPCA 031.

512. Clean Water Act § 303(c)(2)(B), 33 U.S.C. § 1313(c)(2)(B), ELR STAT. FWPCA 030.

513. See generally EPA, BIOLOGICAL CRITERIA, NATIONAL PROGRAM GUIDANCE FOR SURFACE WATERS (Apr. 1990).

514. Telephone interviews with Dr. George R. Gibson, Criteria Branch, EPA and with Carl Young, Region VI, EPA (May 8, 9, 1991).

515. EPA, OFFICE OF WATER REGULATIONS AND STANDARDS, NATIONAL GUIDANCE, WATER QUALITY STANDARDS FOR WETLANDS, EPA 440/S-90-001 (July 1990).

516. EPA, supra note 513.

517. Id. at viii.

518. Id.

519. Id.

520. Id.

521. Id.

522. Id. at vii.

523. Dr. Gibson, supra note 514.

524. Id. For a discussion of Ohio's numerical criteria, see Yoder, The Development and Use of Biological Criteria for Ohio Surface Waters, WATER QUALITY STANDARDS FOR 21ST CENTURY 139-46 (1989).

525. Telephone interview with Christopher Yoder, Ohio EPA (May 9, 1991); see also OHIO ENVIRONMENTAL PROTECTION AGENCY, ECOLOGICAL ASSESSMENT SECTION, THE USE OF BIOCRITERIA IN THE OHIO EPA SURFACE WATER MONITORING AND ASSESSMENT PROGRAM (Aug. 22, 1990).

526. Id.

527. Id.

528. Dr. Gibson, supra note 514.

529. Id.

530. See supra note 486. Company disagreement with causes of whole effluent toxicity led to "a biosurvey to assess instream degradation of the biota in the river." Id. at 68. If the whole effluent test is not dispositive, these arguments will persist for years.

531. While not yet found in Bartlett's Quotations, this folk wisdom enjoys considerable popularity on the bumpers of Louisiana motor vehicles.

532. Congress might consider the addition of "hammer" provisions for toxins within certain categories, as it did with categories of hazardous waste under RCRA § 3004, 42 U.S.C. § 6924, ELR STAT. RCRA 012, which produced an unprecedented arrival of EPA regulations at the appointed times.

533. Indeed, the impression one receives from this survey of toxic programs is that EPA has abandoned its (unwanted) command-and-control obligations to the states, while it proceeds with more "user friendly," voluntary approaches. See EPA, BLUEPRINT FOR NATIONAL POLLUTION PREVENTION STUDY, 56 Fed. Reg. 7549 (Feb. 26, 1991). See also More than 600 firms asked to reduce releases of 17 toxic chemicals voluntarily, Env't Rep. Current Developments (BNA), Feb. 15, 1991, at 1838. Even the White House has announced a new commission to stimulate voluntary reductions in the private sector. White House Environmental Commission Will Focus on Private Sector Initiatives, Env't Rep. Current Developments (BNA), Mar. 1, 1991, at 1941.

534. If the ICS litigation, supra note 328, and dioxin litigation, supra notes 365-69, 397-428, were not sufficient evidence of the prospects for virtually endless litigation that a water quality-based program promises, see also EPA, supra note 433, rebutting 30 separate issues raised by the applicant, each a potential count in a complaint.

535. EPA has estimated water pollution control costs at approximately $ 50 billion a year, a figure that includes both private and federal compliance costs and government regulatory expenditures. COUNCIL ON ENVIRONMENTAL QUALITY, supra note 34, at 52, 53. Not apparently included in these figures are the transaction costs of enforcing environmental regulation, which may be considerable. Government enforcement budgets aside, the annual expenditures of NRDC, EDF and other public interest law firms are largely directed to keeping EPA, the states and industry on track; indeed, the legal history of progress on toxic pollution appears largely in cases brought by these firms. See supra note 143. Industry costs in resisting compliance may also be considerable. In one recent case, a Washington, D.C. law firm has apparently billed the South Florida Water Management District $ 5.7 million for assisting the District's opposition to water pollution control requirements on its discharges to the Everglades. Skadden Bill Shrinks, Nat'l Law Journal, June 3, 1991, at 2. All of these are transaction costs, and at some point one has to conclude that these monies could be better spent on compliance with congressionally established requirements that are beyond litigation. As a knowledgeable observer of the similarly structured Clean Air Act has commented: "[T]he Act's process is extremely complex, creating high transaction costs for governments and businesses. The Act's enforcement also requires more data about pollution effects and controls than science can provide, thereby allowing manipulation that undercuts achievement of the Act's ultimate goals, wastes resources and creates inequities…. It would be better for Congress to forego the theoretical benefits of fine- tuned pollution controls and instead prescribe emission limits for major industries." Schoenbrod, Goals Statutes or Rules Statutes: The Case of the Clean Air Act, 3 UCLA L. REV. 740, 743.

536. Such an approach has been advocated as a first step towards zero discharge of toxic pollutants in the Great Lakes Region, focused initially on a "sunset list" of chemicals with a bioconcentration factor of 250 or greater. See NATIONAL WILDLIFE FEDERATION AND CANADIAN INSTITUTE FOR ENVIRONMENTAL LAW AND POLICY, supra note 14, at 22, 23; Groups Urge U.S., Canadian Authorities to Halve Toxic Releases to Great Lakes by 1995, Env't Rep. Current Developments (BNA), Mar. 8, 1991, at 1987.

537. While it is tempting to think of the use of "markets" to abate toxic pollution, the sheer number and variety of these toxins defies any quick analogy to the abatement programs for lead in gasoline and sulfur dioxide emissions. S.1630, 101st Cong., 2d Sess. § 401; see also Ferrall, The Clean Air Act Amendments of 1990 and the Use of Market Forces to Control Sulfur Dioxide Emissions, 28 HARV. J. ON LEGIS. 235, 241 (1991). It is probably more feasible to think in terms of fees for toxics imposed as a surcharge on toxic emissions, based on an index of toxicity and volume. Similar indices are currently used by state pollution control agencies for the assessment of permit fees. See Water Program Fee Regulations, 33 LA. ADMIN. CODE §§ 1301-1313 (1988). West Germany has employed a tax surcharge system for conventional pollutants for many years. See Brown & Johnson, Pollution Control by Effluent Changes: It Works in the Federal Republic of Germany, Why Not in the US, 24 NAT. RESOURCES J. 929 (Oct. 1984). The important element in a fee-based scheme for water toxics is that the fees (1) be sufficient to stimulate progress on abatement, and (2) that they be used only as a transition mechanism to zero discharge, and not to establish a right to discharge or a sustaining source of funding.

538. See supra text accompanying notes 219, 441, 446. See also Pollack, Moving Fast to Protect Ozone Layer, N.Y. Times, May 15, 1991. (Progress on reducing CFCs in the electronic industry is more rapid than anyone predicted, despite earlier industry claims that alternative processes were not available: "If the federal government set a goal that there would be no fossil fuels sold by 1994, I bet you would see electric cars by then," quoting George Allen, chemist in charge of CFC reduction in Apple Computer, Inc.); Nicholas, Panel agrees to cut polluters' tax breaks, The New Orleans Times-Picayune, Apr. 25, 1991, at B2 ("Companies that had been slow in reducing toxic x are being more cooperative in an effort to win bonus points [from tax reductions]: 'They're suddenly finding ways to reduce emissions that they couldn't find a week earlier,'" quoting Louisiana DEQ official John Glenn; Shinkle, Shell officials expect recycling program will cut state's toxic emissions by 20%, Baton Rouge State Times, Sept. 13, 1990, at 1A ("A recycling program at Shell Chemical Company's complex here has cut the plant's toxic releases to the environment by 152.8 million pounds in one year…. Shell achieved the reductions by building a small plant at the complex that uses hydrochloric acid, formerly a waste product, to produce calcium chloride, which can be used in drilling operations … the recycling operation, which turns toxic waste into a salable commodity, is "slightly profitable" for Shell. Shell officials decided to look at alternative disposal methods in 1985, at a time when stricter regulation of injection was anticipated.") See generally pollution reduction initiatives documented in COUNCIL ON ENVIRONMENTAL QUALITY, supra note 34, at 79-133.

539. See the correlation between discharge bans and ambient pollution reductions noted in B. Commoner, Failure of the Environmental Effort, 18 ELR 10195, 10197 at Table III (June 1988), showing reductions from 70 to 92 percent for lead, DDT, PCBs, mercury, strontium 90, and phosphates.

21 ELR 10528 | Environmental Law Reporter | copyright © 1991 | All rights reserved