UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OFFIC IAL. BUflNEH PtN»LTy FOB 'NIViTE Uif (100 AN eQUAL OPPORTUNITY EMPLOY ER POSTACC AND FECI PAID u.*. cnvcMOnmcnrac pBotcction aqcncv CPA-US US. MAIL J ^^Environmental News THE MID-COURSE CORRECTION- MINOR ADJUSTMENT OR MAJOR RETREAT? Water Pollution Control Federation Government Affairs Seminar International Inn, Washington, D. C. April 6. 1976 John R. Quarles, Jr. Deputy Administrator, Environmental Protection Agency RtJurn thi* sheel it you do NOT wish to raeaiva thl« material ~. or If ch»ngt 0f addrttt It naadad ~ (Indicate chang*. Including ilp code). EPA FORM 1510-f (REV. S>72> ------- Good afternoon, ladies and gentlemen. It is a real pleasure to be with you today to participate in this discussion of the final report of the National Commission on Water Quality. I should say at the outset that any effort to comment on such a massive undertaking within this short time is difficult, but I welcome this chance to speak to some of the central issues raised by the report. The Federal Water Pollution Control Act Amendments of 1972 estab- lished an extremely complicated, highly ambitious program to clean up the nation's waters. The Act established strict deadlines, which in some cases have been impossible to meet. It mandated a variety of specific program activities, some of which have not yet been success- fully implemented. It laid down detailed requirements as to how the programs should be carried out, some of which have impeded progress toward the Act's principal goals. The report of the National Commission intensively analyzes what has happened under this law, spotlights a great many problems, and makes many recommendations for change. In view of the massive scope of the national water pollution prob- lem, the complexity of the statute, and the diversity of questions raised concerning it, there is an initial question we must answer before facing the specific issues. It is this: What is our basic attitude concerning the effectiveness of the national program now underway? Should we start out with the approach that major revisions, or only minor adjustments, to the existing statute are required? To put the problem in perspective, it might be useful to briefly review just what has been accomplished since 1972. It is always ------- tempting to foctri on wh.it we have failed to accomplish in 'ems of the statutory requir \ :nu, rather than on what has actually bcsn achieved. Without the t;any problems which remain to be solved, let us look carefully a: our progress since October of 1572 when the statute was enacted. The design- cof the 1972 Act placed chief emphasis on industrial and municipal point sources of water pollution. It directed that regulatory requirements on these sources be sharply tightened, that enforcement be streamlined, and that the Federal grant program for sewage treatment plant construction be ambitiously expanded. Long strides toward these goals have been raade. Today, EPA and state agencies have issued regulatory permits setting strict abatement requirements for over 20,000 industrial plants. These have been individually drafted to require each plant to achieve best practicable control technology and also to comply with water quality standards. These permits require regular monitoring of discharges and public disclosure of that data. Eighty-nine percent of the major industrial dischargers now have final permits, and, of these, 83 percent are in compliance with their abatement schedules. Permit conditions are being carefully monitored and vigorously enforced. In half our states legislation has been adopted to strengthen water pollution control programs. In trree and one-half years we have advanced dramatically from an earlier day when the prevailing standard was the vaguely understood catch-phrase, "secondary treatment or its equivalent," when enforcement was. "lax, and when "slippage" was all but universal. 2 ------- In the municipal construction grant program, the 1972 Act called for a new-three-step procedure for all projects and added many new requirements in the planning and approval of new plants. EPA, state, and local officials and others involved have labored to expand levels of construction while meeting all these new requirements. In Fiscal Year 1975 EPA obligated $3.6 billion for construction of these facili- ties. This year we hope to obligate $4.5 billion. Though far less than the statute called for, this more than 20 times the level of Federal funds provided for 1970. More important than these programmatic achievements, we are now seeing visible improvements in water quality in many critical water- ways. In Lake Erie, the Cuyahoga River, the Buffalo River, the Hudson River, Escambia Bay, San Diego Harbor and many other places, signifi- cant progress is evident. This progress is measured in real terms. Fish are returning, beaches and shellfish beds are being reopened, the foul stench of pollution is disappearing, and the water is cleaner to the naked eye. Yes, we have begun to turn the corner in the national battle against water pollution. At the same time, this progress has not wrecked havoc in the national economy. Industrial expenditures for water pollution control have risen markedly, though not to the extent that many experts pre- dicted. Very few plants have been forced to close on account of these financial burdens, and construction of pollution control facilities has created in essence a new industry within our economy, providing many more jobs by far than those closed out or even threatened. 3 ------- The 1972 Act called for many programs in addition to the two big ones I have mentioned. Some of these have moved forward satisfactorily. Others have not. Some changes doubtless are needed, and in the overall effort certainly we need now to focus much more aggressively on non- point sources and on toxic discharges than we have so far. But we should not lose sight of this basic fact: the 1972 Act has achieved its major objective -- to get this country moving to control water pollution. We are making progress toward the goals of clean water which Congress established, goals which are clearly in the public interest! As we review the range of program activities called for by the statute, it is clear that the aggregate administrative burden on EPA and state and local governments exceeded their capacity to perform within the statutory deadlines. That does not necessarily mean, however, that such programs won't work. We must ask in each case whether there is a need for change or merely a need for time to complete the work. In many cases we simply need to be more realistic in our expectations as to timing. If we have bitten off more than we can chew in one bite, the answer may be to keep chewing, not to spit it all out and start over. I would now like to turn to several of the Commission's major recommendations. First, the Commission recommended that the 1977 deadline for industrial and municipal dischargers be relaxed on a case-by-case basis. In addition, the Commission recommended that the 1977 requirements be 4 ------- waived altogether in cases where the adverse environmental impact would be minimal and costs are disproportionate to projected environmental benefits. Regarding the extension of the 1977 deadline, while there may be a few, exceptional cases where such action is warranted, I do not believe that such extensions should be granted as a matter of course. To do so would be tantamount to rewarding those dischargers who have intentionally delayed complying with the 1977 requirements. It would be totally unfair to the majority of companies which have made a good faith effort to meet the 1977 deadline. Experience indicates that, in general, the 1977 deadline for industrial dischargers was realistic and can be achieved. Its integrity should be preserved. There will be a few cases where the deadline now cannot be met. In these cases some flexibility will be necessary, but not nearly the amount at least suggested by the Commission's recommendations. Where such extensions are necessary, Congress should also consider imposing some form of economic incentive to encourage the discharger to achieve compliance as rapidly as possible. Such an approach is now being actively con- sidered under the Clean Air Act, and I believe it may be useful in the water pollution program. Second, and far more serious, the Commission recommended that the 1977 requirements be waived altogether in selected cases. Basically, the Commission is recommending that a cost/benefit analysis be under- taken for each discharger who is having difficulty meeting the 1977 5 ------- requirements and if the costs appear to exceed the benefits, chat dis- charger should be exempted from the requirements. This would open a pandora's box. Congress specifically rejected such an approach in passing the 1972 amendments when it abandoned reliance on the old water quality standards. The reason was simple: It is administratively impossible to measure the benefits of specific abatement actions by every individual discharger on every specific waterway. Because of this problem, Congress adopted a uniform, technology-linked standard for all industrial dischargers. Moreover, this proposal, at this stage in the process, is out of the question. Implementation of the 1977 requirements is already far advanced. By the time such a change in requirements could be adopted by Congress and implemented, the July 1, 1977, deadline will be long passed. Thus the relief would be a reward to the recalcitrant and a penalty to those who in good faith have com- plied with the law. Even the prospect of Congress enacting such a change would create a nightmare for EPA and the states. Such a pro- vision would encourage virtually every discharger to hire economic con- sultants to prepare a study showing that the cost of meeting the 1977 standards exceeds the benefits for his particular facility. Someone, presumably EPA, would have to evaluate each of these studies. Mean- while, no action would be taken to achieve compliance with the existing permit. This could become the most powerful engine yet devised for further delay. Once that door is opened, there can be only one result — a wholesale effort to undermine the 1977 requirements. 6 ------- I will turn now to what I consider the most important, and troubling, recommendations by the Commission: those dealing with Phase II of the program Congress established in the 1972 Act. The Commission recommends that the 1983 goal of "fishable, swimmable" water be re- tained, but suggests, in the same breath, that requirements needed to attain the goal be delayed for not less than five nor more than ten year* after 1983. The Commission combines this recommendation for delay with a suggestion that controls on toxic pollutants be accelerated and that a new round of abatement requirements on toxics be implemented not later than October 1, 1980. I find these recommendations mutually inconsistent, undesirable, and hopelessly impractical. I will begin with the proposal that achievement of fishable, swim- mable water and best available treatment be postponed by up to a decade. First, there is little or no support for such massive delay in the staff report. That report states that "best available technology economically achievable" — the basis for the 1983 requirements -- is, generally, technologically attainable. The exception is short-term, 24-hour limitations in certain cases. In response to the question of whether industrial dischargers can attain BAT by July 1, 1983, the staff report states that (this) "depends upon (the) date the 1977 requirements are actually met and resolution of challenges to some effluent limitations and permits." (Staff draft 1-29) The staff report does recommend some delay in the 1983 attainment date, but nowhere does it suggest that a five- or ten-year delay is needed. 7 ------- Had the staff report found that the cost of achieving the 1983 requirements was exorbitant, there might be some Dasis for the Com- mission's recommendation. However, in one of the major findings of the study, the staff found that the cost of complying with the 1983 requirements was actually lower than the cost of complying with the 1977 requirements. Previously, it had been assured that the cost of achieving the 1983 goal would be sharply higher than that of achieving best practicable control technology. According to the staff report, the cost of achieving BAT for those facilities in place as of June 1973 would be $23.0 billion as compared with $36.6 billion for comply- ing with the 1977 requirements. What this suggests is that there are no insuperable economic or technical barriers to achieving the 1983 requirements, and thus assuring all Americans of "fishable, swimmable" water by that date or shortly thereafter. Having recommended a substantial delay in the attainment date for the 1983 requirements, the Commission recommended a number of "interim" steps which it suggested as conditions for approving the recommended delay. Basically, these amount to a periodic review and upgrading, where possible, of the 1977 requirements, particularly in those areas where the 1977 requirements are inadequate to achieve water quality standards. What this means is that dischargers would be encouraged to fight every effort to tighten the requirements, rather than install better treatment technology. Also, this means that regulatory agencies would be saddled with a heavy burden of proof and forced to cross all the hurdles of cumbersome procedures 8 ------- for each individual case. The Commission would substitut. water quality standards and all the problems associated with the;n for the existing technology-based standards. Stated simply, the Commission would have us repudiate the approach Congress adopted in 1972 in favor of the approach Congress rejected in 1972. It is unlikely under these circumstances that genuine progress could occur. »We must now take a hard look at the proposals concerning toxics. The Commission oorrectly points out that toxic pollutants pose an especially great hazard and there have been delays in developing effec- tive controls for this class of pollutants. The Commission recommends that "effluent limitations based on technology to eliminate the dis- charge of toxic pollutants in toxic concentrations into the nation's waters (be) implemented as soon as possible, but no later than October 1, 1980." With regard to this recommendation, one is tempted to say, "if only it could be so." There is no question that control of toxic pollutants is needed as soon as possible. The Agency has struggled with this problem with scant success ever since the passage of the 1972 amendments. The chief problem is the existing statutory frame- work. This is one place in the Act where a major overhaul is needed, and the Commission apparently has recognized the problems in the existing statutory provision, Section 307(a). Under current law EPA must set national toxic effluent standards based partially on the quality of receiving water. Because of the tremendous differences 9 ------- between receiving waters and the impact of toxics in the cif+erent waterways, it has been virtually impossible to set national effluent limitations for these toxic pollutants. As the Commission has recog- nized, we need technology-based effluent standards for this class of pol1utants. This is not, however, the only problem with Section 307(a). The current provision requires that any toxic effluent standard promulgated by the Administrator take effect within one year after it is published. In many cases, this is an impossible deadline for industry to meet. In addition, the current provision requires the Administrator to hold a formal adjudicatory hearing with full rights of cross-examination prior to the promulgation of any effluent standard. These hearings drag on for months, further delaying the process. For all these reasons, Section 307(a) must be amended if EPA is to effectively con- trol toxic pollutants. Control of toxic pollutants cannot be disconnected from the general program to control industrial pollution. Industries must be able to plan and carry out abatement programs in a predictable and orderly fashion. Nearly all major industries now have permits issued during 1974 and 1975 setting forth their pollution control obligations. Those permits will generally expire in 1978 and 1979. As those per- mits are renewed, they will spell out the second round of tighter control which the law requires to be completed by 1983. EPA is now preparing to emphasize toxic control in that second round. We are undertaking am ambitious effort to develop best available treatment standards to control toxic pollutants, industry by industry. Those 10 ------- standards will be completed at various times from 1977 through 1979. On the basis of our experience in setting effluent guidelines for the traditional, better understood pollutants (such as BOD, suspended solids, acidity or temperature) and in view of the extreme complexity of dealing with huge numbers of toxic pollutants, those schedules for completing effluent guidelines for toxics cannot be foreshortened. The process of translating national standards or guidance into thou- sands of permits for individual plants, allowing time for public hearings, administrative appeals, and judicial review will also inevi- tably require one to two years at best. As permits are reissued throughout the 1973-79 period, they will in many cases embody the new effluent guideline requirements for toxics. Where those standards have not been finalized, toxic controls can be individually drafted for specific plants to apply the statutory BAT objective, just as thousands of permits were written in 1974 before the BPT effluent guidelines were completed. In either situation, the stricter requirements will be imposed in an intelligent, orderly manner, affording industry the fairness of a predictable schedule for .control and moving forward effectively toward the goals of clean water that Congress has established. Any effort to jump ahead on the control of toxic pollutants will disrupt this orderly process. The regulatory agencies are not ready to move ahead that fast, and even if they were it would throw a monkey wrench into the existing abatement programs. On the other side, any 11 ------- delay in the 19S3 standards would also be extremely disruptive. Achievement of tighter control over toxic pollutants is heavily depen- dent on imposition of the best available technology standards. Any thought that we could accelerate the former while delaying the latter is bound to be disastrous. There is one other major weakness in these various proposals by the Commission -- they would return the national water pollution pro- gram to the days of the moving target. As long as I have been in the government critics have always complained that environmental standards keep getting changed. Congress finally answered that criticism by establishing an orderly, two-phase, ten-year program. Now some of the same critics want to bring back the moving targets. It just doesn't make sense. I recognize that I have not dealt with many important recomenda- tions -the Commission has made, and I do not mean to focus exclusively on those with which I disagree. Let me say in passing that I generally support the Commission's recommendation that control of the water pollution program be further decentralized as long as the states have adequate resources and the necessary commitment to get the job done. I also agree that Congress should reexamine the rationale and actual performance of the user charge, industrial cost recovery, and pre- treatment provisions of the Act. Our experience has shown that these are good ideas on paper, but have been difficult to implement in practice. The Commission has also raised several important questions concerning the entire program for municipal sewage treatment plant construction. 12 ------- Yet I believe the issues I have discussed are the most important. If Congress were to adopt the most far-reaching proposals by the National Commission on Water Quality to knock several loopholes through the 1977 requirements and to postpone the 1983 objectives by as much as ten years, it would undermine the entire national effort to control water pollution. The psychological impact of such changes would blunt the momentum of everything we are doing today to restore clean water to the American people. I believe that this type of backward step is unnecessary from a financial viewpoint, destructive from an environ- mental viewpoint, and in terms of the overall public interest just plain wrong. We have been working in this country for several decades to achieve an effective water pollution control effort. Now we are in the middle of a comprehensive program that seems to be achieving success. We can see visible progress, but we know we have a long way to go. Many of our waterways continue to be dreadfully polluted. We must also worry about future growth offsetting the gains we have made. We know that far greater control can be within our grasp without dis- ruptive economic or social effects, and that many severe pollution problems still urgently demand attention. Now more clearly than ever before, the question is npt whether we are able to obtain clean water but whether we want to. If we truly want to heal our damage to Nature, if we really want to restore the fresh, sparkling vitality of our nation's waters, surely now is not the time to start to walk off the job. 13 ------- |