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CLEARING THE WATER EPA plan to address waterways that remain polluted meets heavy criticism Cheryl Hogue C&EN Washington
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tarting the cleanup of America's rivers, lakes, and streams was easy. In the 1970s, nearly any action to control pollution yielded improvements in water quality. Now, commercial sources of pollution—those that are readily identified by effluent pipes—are fairly tightly controlled. Yet many stretches of the nation's waterways remain unsuitable for fishing, swimming, or use as a drinking water supply. This is in large part the result of runoff from roads and urban areas, farms, and timber operations—so-called nonpoint sources of water pollution. In August 1999, the Environmental Protection Agency proposed a regulation instructing states to come up with plans for cleaning up waters that remain polluted (C&EN, Aug. 23, 1999, page 10). That proposal has generated a hailstorm of criticism from states, industry, agriculture, and the forestry sector and thousands of written comments to the agency. During the past five weeks, the House and Senate have held four hearings devoted solely to this issue. In addition, a Senate hearing on EPA's fiscal 2001 budget focused heavily on the proposal. Some members of Congress are considering legislation related to the proposal. EPA's proposed rule addresses a little-used provision in the Clean Water Act for instances in which pollution control technology fails to achieve that law's goal of fishable, swimmable, and drinkable water nationwide. The provision requires states and EPA to identify stretches of rivers, lakes, streams, and coastal areas that remain polluted despite improvements in control technology. After such "impaired waters" are identified, states and EPA are supposed to develop individual plans for cleaning up these areas. Regulators must set a to-
tal maximum daily load (TMDL) for each pollutant that continues to be a problem in a particular impaired water. TMDL is a cap for contaminants. It is the largest amount of pollution from all sources that a waterway can absorb and still meet water quality standards
Gllckman (left) and Browner
for the use that a state government decides is appropriate for a particular waterway, such as fishing or swimming. Each state determines water quality standards—the highest allowable level of pollution that still allows a waterway to befishable,swimmable, or drinkable—for each waterway in its jurisdiction. Under a TMDL program, states determine what sources are polluting an impaired water. Then states must set up "pollution budgets," allocating pollution allowances among various sources of contamination in a watershed. According to Resources for the Future, a Washington, D.C.-based think tank, the TMDL approach is altering the politics and economics of water quality regulation because it targets many polluters—such as farmers and loggers—who have not been included in Clean Water Act efforts in the past. But including these sources in water cleanup efforts is key because fewer than 10% of the most polluted rivers in the U.S. are in their contaminated condition because of industrial sources, Resources for the Future said in a report issued earlier this month.
EPA proposed the rule to give states a road map and deadlines for identifying and restoring polluted waters after environmental activists sued 34 states for failing to implement the TMDL provisions of the Clean Water Act. In these cases, courts have typically found that state implementation of the law's TMDL provision is inadequate. Meanwhile, EPA in 1996 convened a federal advisory committee to suggest ways to improve the TMDL program. Much of the agency's proposed rule is based on the committee's 1998 recommendations. The proposal calls for states to establish TMDLs within 15 years. It generally would allow states to set their own priorities on which impaired waters will be addressed first in a TMDL program. However, it would require states to assign a high priority to lakes and rivers from which drinking water is drawn and waters where pollutants threaten plants or animals listed under the Endangered Species Act. If a state fails to develop a TMDL program, the Clean Water Act requires EPA to implement one for that state. State officials are criticizing the proposal. Montana Gov. Marc Racicot (R) told the Senate Environment & Public Works Subcommittee on Fisheries, Wildlife & Drinking Water that the TMDL proposal "appear[s] to focus on list-keeping and technical reporting to EPA rather than effective assessment, implementation, and resolution of water quality problems." Racicot also took issue with part of the proposed rule that he said would allow EPA to "veto" a state's TMDL program and replace it with a federally prescribed one. J. Charles Fox, EPA assistant administrator for water, said at the hearing that the agency plans to give flexibility to states in implementing TMDLs, adding that EPA should not end up in the position of imposing a water quality program on a state. But, Fox said, EPA will not forgo its statutory duty to ensure that nationwide water quality standards protect the environment and human health should a state fail to act. Sen. Michael D. Crapo (R-Idaho), chairman of the subcommittee, expressed doubts about EPA actually giving states flexibility. He said state officials have told him if they do not adhere rigidly to what EPA wants from TMDL programs, they believe federal regulators will step in. State officials also say that jurisdicMARCH 13, 2000 C&EN
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g o v e r n m e n t & poliey tions with good programs for monitoring water quality will get penalized under the TMDL proposed rule. This is because they will end up with longer lists of impaired waters that they must address than will states with little or no monitoring. "EPA has not, to our knowledge, defined what constitutes a minimal acceptable monitoring program," Paul W. Johnson, director of the Iowa Department of Natural Resources, told the Senate Agriculture, Nutrition & Forestry Committee on Feb. 23. State officials also say TMDL programs will be extremely costly to implement and are asking Congress for federal money to help them develop an estimated 40,000 TMDLs over the next 15 years. Roberta H. Savage, executive director of the Association of State & Interstate Water Pollution Control Administrators, told the Senate Agriculture Committee that EPA's rule should only apply to impaired waters where TMDLs can make a meaningful contribution to solving water quality problems. Industry—including chemical manufacturers—fears the proposal would make water pollution control permits harder to get and tougher to comply with. Richard F. Schwer, senior environmental consultant for DuPont in Wilmington, Del., told the House Transportation & Infrastructure Subcommittee on Water Resources & Environment on Feb. 15 that the TMDL proposal would impose strict new requirements on big new facilities or large expansions of existing plants that discharge into stretches of lakes or rivers that do not meet water quality standards for a particular pollutant. Schwer said that under the proposed rule, facilities generally would not be able to get a water pollution control permit or change an existing permit to accommodate a larger discharge of a contaminant unless they obtain pollution offsets. To get an offset for a particular pollutant of concern, a company would have to broker deals with other facilities that discharge the same contaminant into the same waterway to reduce their pollution loads. The proposed rule would require 1.5 lb of offset for every 1 lb of pollutant increase in the same water body. Schwer, who testified on behalf of the Chemical Manufacturers Association, said the Clean Water Act does not give EPA the authority to require such offsets. "Municipal or industrial facilities that are seeking to locate in an area, or expand an existing plant, will be unable to obtain the required offsets and simply 32
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will not be able to build the new facility or expansion," S e d i m e n t s , nutrients top EPA's list Schwer said. This would hapof water impairments pen even if a new facility has an insignificant impact on waSediments ter quality, he said. Schwer Nutrients added, "It is likely that these Pathogens new requirements will subDissolved oxygen stantially stifle economic Metals growth and business plans in Habitat many areas of the country, pH Suspended solids with consequent loss of jobs Temperature and tax revenues." Flow alterations Cities share a similar conPesticides cern, seeing the TMDL proNoxious plants posal as a threat to their efTurbidity forts to redevelop shuttered Fish contamination industrial sites. William D. Ammonia Nielsen, president of the Eau 5 10 15 Claire, Wis., city council, said % waters impaired facilities that cannot get a waTotal water segments ter pollution control permit analyzed = 27,322 because of impaired waters Note: Data from 1998. Source: Environmental Protection Agency in urban areas will be encouraged to locate along "pristine" waterways in less developed ar- only reliable, credible data to decide eas, thus promoting sprawl. Nielsen testi- which of their waterways qualify as "imfied before the House Subcommittee on paired." According to Schwer, "OtherWater Resources & Environment on be- wise, waters can get listed that are not half of the National League of Cities. truly impaired, and municipal and indusBut EPA Administrator Carol M. trial facilities can be subjected to strinBrowner said that under existing regula- gent requirements that later turn out to tions, new discharges to polluted waters be entirely unnecessary." are allowed only if the new effluent neiMeanwhile, farmers and foresters are ther causes violation of water quality stan- fighting the proposed rule because they dards nor contributes to such a violation. fear it would require them to obtain polluThe proposed TMDL rule would affect tion control permits for runoff from fields permits for large new discharges or signifi- and woodlands. Although runoff pollutes cantly expanded discharges into impaired some 47% of impaired waters in the U.S., waters, Browner told the Senate Agricul- the Clean Water Act exempts nonpoint ture, Nutrition & Forestry Committee. sources from the need to get such perPollution offsets would be required in mits. Thousands of farmers and forestpermits "where possible," she said. ers, plus numerous trade groups— 'This provision would help to ensure including the American Farm Bureau that pollutants that bioaccumulate or are Federation, the American Crop Proteccontrolled based on mass loading, rather tion Association, and the American Forthan concentration, do not make already est & Paper Association—are voicing concerns about the TMDL rule to federal polluted waters worse," Browner said. Schwer also said EPA needs to con- legislators and to EPA duct a comprehensive analysis of the EPA officials, including Browner, costs to industry and states of imple- agree that the agency cannot require menting the TMDL rule. nonpoint sources of water pollution to get But Douglas P. Haines, executive di- pollution control permits. Browner told rector of Georgia Legal Watch in Ath- the Senate Agriculture Committee that ens, Ga., told the House Subcommittee nonpoint sources will not need permits on Water Resources & Environment under the TMDL proposal—which genthat any costs to industry of the TMDL erally means farmers have nothing to rule would be spread to consumers. He fear. Foresters only need permits if they defended EPAs proposal, saying, "The have a "discrete conveyance"—such as a water is not clean, and something really pipe or a ditch that carries runoff to a stream, river, or lake—which makes has to be done about it." Schwer said EPA needs to clarify the them a point source of pollution, accordproposed rule to ensure that states use ing to EPA officials. Browner said the
"vast majority" of forestry activities will never need a water pollution control permit. She vowed to make this issue clearer when EPAfinalizesthe TMDL rule. Agriculture Secretary Dan Glickman told the Senate Agriculture Committee that the proposed TMDL rule is complex and hard to understand. 'The rule should be more clearly constructed and should minimize adverse effects on agriculture and silvaculture operations," Glickman said. "Farmers are under extraordinary stress right now, and more than ever they need clear and understandable information about how any new proposed regulation might affect their operations." Browner and Glickman said their agencies have formed a TMDL task force that is working on the Agriculture Department's concerns with the proposed rule. Key among them are the scientific models used to assess the contributions of nonpoint sources to water pollution, Glickman said. Meanwhile, some lawmakers are considering legislation related to TMDLs. Sen. Blanche Lincoln (D-Ark.) has intro-
duced a bill, S. 2041, that would exempt many silvaculture activities from having to obtain water pollution permits— including reforestation, pest and fire control, thinning, prescribed burning, logging, and road construction and maintenance. Sen. Ron Wyden (D-Ore.) said he may offer legislation to help forestry operations get credit under both the TMDL program and the Endangered Species Act for activities designed to restore salmon habitat. Browner said EPA plans to issue a final version of the TMDL rule this summer. Fox, the agency's top water official, said the target date for release is June 30. Crapo, the Idaho senator, said EPA is moving too fast on TMDLs and urged the agency to delay issuance of the final rule in the face of the widespread outcry over the regulation. But Fox, noting that EPA has worked on the rule for years, said the agency wants to issue the rule before the changeover of presidential Administration takes place. "The time has come to finalize this," Fox said.^
scientists to its program is to make sure equipment aboard the space station allows for automation, monitoring, realtime feedback, telemanagement, and sample recovery. The X-ray Crystallography Facility (XCF) designed for the space station, through its use of robotics, meets many of these criteria, the task group notes. But the group also points out that few in the scientific community know of XCF, and NASA should make them aware of this technology. By reaching out to the protein crystal growth community, NASA can ensure that the best science is flown on the space station, says task group member Adele L. Boesky, director of research and a biochemistry professor at Weill Cornell University Medical College, New York City. This community of experts may even be able to make a breakthrough and validate the cost-effectiveness of microgravity research, she adds. On the other hand, despite welldesigned experiments using leadingedge technology to puzzle out the crystal structure of biologically important proteins, the low-gravity environment of space may not offer an advantage in growing larger, better defined crystals. If that turns out to be the case, NASA should ments that can then be compared to be prepared to jettison its microgravity resimilarly controlled and designed search program, the task group says. 'We ground-based experiments, he explains. are in agreement with that," says Eugene Research conditions aboard shuttle Trinh, director of NASA's Division of Miflights were always less than optimal. So, crogravity Research in Washington, D.C. to address the uncertainties that have 'There is no compunction in terminating plagued NASA's crystallization program the program," he adds. to date, NASA needs to attract the best NASA has now narrowed its focus on protein crystal growth scientists to partici- structural biology and will issue a call for pate in a nationwide effort. This highly pub- proposals next month, Trinh says. Approxlicized program, in turn, needs to be nar- imately eight months later, about 15 to 20 rowly focused on "challenging systems investigators "from top-level U.S. instituand hot scientific problems," the task tions in structural biology" will be selected group says. to participate in the comparison program, One way NASA can attract top-notch he adds. Investigators will have another couple of years to design ground-based or spacebased experiments. Although the space station is under construction, the latter experiments will be conducted on it "no sooner than 2003," he says. The NRC report, "Future Biotechnology Research on the International Space Station," also includes recommendations on NASA's cell science, and is available online at http://books.nap. edu/catalog/9785.html. Artist's rendition of completed space station, Lois Ember
NASA's Protein Crystal Work Gets Mixed Reviews The latest verdict on the utility of the National Aeronautics & Space Administration's protein crystal growth research in microgravity is mixed. In a just released report, a National Research Council (NRC) task group agrees with NASA's critics that efforts to grow higher quality protein crystals in space have been incremental at best. Not one space-based crystallization endeavor has proven to be the determining step in achieving breakthrough scientific results. Still, the task group offers NASA solace. The panel finds that there is reason to believe that crystallization in a microgravity environment may contribute to advances in structural biology. Therefore, the panel says, NASA should continue such studies aboard the space station to determine whether a low-gravity environment offers advantages over ground-based crystallization. The task group was "really not in a position to make a determination of whether microgravity conditions can provide seminal contributions," says its acting chairman, Gary S. Stein, deputy director for research at the University of Massachusetts Cancer Center in Worcester. But the space station offers an opportunity to do a series of controlled, thoughtfully designed experi-
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