EPA WATCH States facing new controls for nonpoint sources States are under great pressure to require controls on nonpoint sources of water pollution, such as runoff from farms, under a policy released last month. The policy, which becomes effective in 1998, also encourages states to move more quickly on implementing a Clean Water Act program designed to protect watersheds. Last month, EPA released water quality policies to speed implementation of the total maximum daily load (TMDL) program. Considered by many to be the technical backbone of the watershed approach, the TMDL program requires states to identify impaired waters on the basis of use and severity of pollution and to apportion pollution limits among all dischargers in a watershed to meet water quality standards. However, states have been dragging their feet. Douglas P Haines, executive director of the Georgia Center for Law in the Public Interest, said states should have completed their first round of TMDLs by 1979. Georgia is one of more than 24 states in which conservation groups have sued EPA to require the state to carry out TMDL requirements [ES&T, April 1997, 178A). Prompted by the spate of lawsuits, EPA convened a federal advisory committee in November 1996 to reevaluate its TMDL policies and regulations. The committee's final report is due in mid-1998. Changes to the program will require new regulations and guidance, said Geoffrey Grubbs, director of assessment and watershed protection. Before the TMDL program is revised, Grubbs said it is necessary for EPA to "address two holes in the existing regulations where we are dead silent: the schedule for completing TMDLs and guidance on how to implement them." The new policy gives states 8-13 years to establish TMDLs and specifies that pollutant reductions must be set for nonpoint and point, or stationary, pollution
Confidential data controls may be tightened EPA is gearing up to tighten confidentiality requirements for chemical data submitted by businesses under the Toxic Substances Control Act (TSCA), according to Alan Abramson in the Office of Pollution Prevention and Toxics. The changes would provide state regulators and researchers improved access to these data. Abramson said EPA is already working on a proposed rule from 1994 that would tighten confidential data requirements agency-wide. "I'm taking that proposal as a starting point and seeing whether there is anything else we would want to propose," said Abramson. The changes might be achieved without a formal rulemaking, he added. Associate General Council Ray Spears said the agency's proposed rule would authorize EPA program offices to make sunset provisions requiring companies to update requests to protect certain types of information, and it would require companies to explain why an entire TSCA submittal is confidential. Companies generally do not have to substantiate confidential business information (CBI) claims unless a request is made for public access to the data, said Spears. In a speech last December, EPA Assistant Administrator Lynn Goldman noted that in Fiscal Year 1995, more than 65% of the substantive information filings directed to the agency through TSCA were claimed as confidential. "There is cause for concern," Goldman said. "Many of these submissions are on research and development chemicals—and not on chemicals we would recognize as actually being in commerce. There is no vehicle for revisiting old CBI filings once the chemical gets into commerce," she said. Abramson said he hopes this fall to submit to Goldman some options for revising the CBI rules.
sources. If states don't comply with the updated criteria, the agency will withhold grant funds, a penalty considered a "pretty significant threat" by attorney Haines. EPA also plans to enhance its technical assistance and funding to the states. Meanwhile, an independent group of state environmental officials is drawing up a policy intended to reduce penalties for noncompliance with the TMDL requirements and lengthen the implementation schedule. Noting that "the states' interest in this should have been stimulated 20 years ago," Haines said he doubted the validity of the group's proposals. He added that the greatest influence on EPA policy would come from terms set out in the settlement of lawsuits.
Court supports PCB import ban despite EPA plea A federal court has rejected EPA's argument that importing polychlorinated biphenyl (PCB) wastes from
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Mexico and Canada for incineration was environmentally safer than forcing those nations to ship the toxic residues elsewhere for disposal. In a July 7 ruling, the U.S. 9th Circuit Court of Appeals overturned a March 18, 1996, EPA decision to lift a ban on the importation of PCBs for incineration in the United States. The importation ban had been in place since 1980 following widespread evidence that PCBs, commonly used as insulating fluid in capacitors and transformers, had degraded water quality, affected wildlife, and posed a health threat to humans. EPA's 1996 rule was challenged almost immediately by the Earthjustice Legal Defense Fund—formerly the Sierra Club Legal Defense Fund —on the grounds that it violated a provision of the Toxic Substances Control Act (TSCA) that "provides for a categorical ban on the manufacture of PCBs." In its ruling, the court agreed, saying, "The ban on manufacturing PCBs includes an absolute ban on their import."
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Earthjustice lawyers had argued that trace levels of 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) from the PCB incineration process could enter the food chain—a health threat far outweighing the remote chance of a shipping incident. Aside from an incinerator in Swan Hills, Alberta —a remote site in western Canada— the closest alternative PCB disposal facilities available to Mexico and Canada are in Europe. "The allegations of EPA to the contrary, the real effect was to increase the public's exposure to toxic chemicals," said Earthjustice lawyer Howard Fox. Waste disposal firms incinerate about 842,000 metric tons of PCB waste annually. EPA estimates that Canada has stockpiles of about 172,722 metric tons of PCB waste, and another 60,000 tons are in Mexico. EPA estimated that U.S. disposal industries would make an added $50 million to $100 million per year by handling the imported waste. However, the thrust of EPA's argument dealt with environmental damage from foreign PCBs. In Lake Superior, EPA said, up to 89% of the current loading occurs through air deposition, "much of it from distant sources," a conclusion that, by implication, suggests PCBs are not being properly incinerated elsewhere. But Earthjustice lawyers argued that economics—not environmental concerns—was the driving force behind EPA's decision to lift the ban. "This rule was economically driven, not environmentally driven," said Fox. EPA officials "are still evaluating the court decision," said spokesperson Denise Kearn.
IG calls for more oversight of hard rock mining EPA's failure to more aggressively regulate hard rock mining could mean more pollution problems and higher Superfund cleanup costs in the future, according to a report from the agency's Inspector General (IG). Specifically, the report said EPA had failed to fully use its authority under the Clean Water Act and the Resource Conservation and Recovery Act (RCRA) to control waste disposal and wastewater discharges at open pit mining sites. The IG said EPA staff had not provided adequate technical assistance about mining wastewater to states that operate the federal effluent discharge program. The primary
water quality threat from open pit mines stems from cyanide use to extract metals from rock. Although many of the largest hard rock mines are located in the west, the report noted that operations also exist in Maine, Michigan, South Carolina, and Florida. Released June 11, the report also said EPA had failed to pursue a mining waste regulatory program under RCRA even though Congress had given the agency the power to do so. Improper handling of tailings and other wastes has placed about 67 mining sites on the Superfund National Priority List for cleanup. Costs of cleanup at one site alone—the Summitville mine in Colorado— could easily top $150 million, the report said. Noting a "resurgence" in mining activities over the past 20 years, the report also said EPA was not to blame for the confusing overlay of state and federal regulatory control, leaving no one with clear lead authority over mine pollution. While generally agreeing with the IG's report, Assistant Administrator for Water Robert Perciasepe said inadequate financial resources had hampered the agency's ability to inspect mining sites.
"Onerous" drinking water rules to be revised Water utilities will no longer be required to routinely monitor for chemicals that don't appear in public drinking water supplies, according to a pending EPA proposal. On July 3, EPA offered a plan to change monitoring requirements for 64 organic and inorganic chemicals now regulated under the Safe Drinking Water Act (SDWA) {Federal Register, 1997, 62(128), 36099-36136). Acting on appeals from municipal water supply operators who were concerned about the high cost of testing, EPA said it was proposing the changes because the earlier fears of contaminated water supplies "has not been borne out. The reduction of unnecessary monitoring will release public resources to focus on those systems at risk of contamination and on the contaminants posing such a risk." The plan would require baseline water quality analysis every five years instead of every three years. It also would allow 10-year or permanent testing waivers if a state can
show there "is little or no likelihood" that certain contaminants would be found in a local water supply. For example, recent groundwater data from 16 states show that ethylene dibromide—a compound regulated under the SDWA—was detected in only 43 of 9321 water samples. However, more frequent monitoring would be mandated if any chemicals were detected at greater than one-half the maximum level specified in the law. The proposal would let state regulators concentrate on testing higher risk water systems, allowing them to prioritize testing to account for seasonal anomalies such as increased monitoring for pesticides during the spring planting season. Most utilities support the EPA proposal in concept, said Steve Via of the American Water Works Association. Environmentalists, however, were less certain. Brian Cohen, an environmental engineer with the Environmental Working Group, embraced "the need for more flexibility in monitoring" but criticized EPA's willingness to grant lengthy testing waivers for certain contaminants. Contaminants that show up suddenly and unexpectedly would not be detected because the waiver would exempt them from routine testing, added Erik Olson of the Natural Resources Defense Council. "We think the states should do more frequent testing even if waivers are issued," Cohen said.
Radon offers chance to assess risks across media An act of Congress designed to curb radon mitigation costs for water utilities requires EPA to weigh risks between air and water contamination, marking a new direction for federal regulators who are accustomed to considering risks from different media separately. The Safe Drinking Water Act (SDWA) of 1996 requires the agency to offer water utilities and states a choice of either meeting the planned standard for radon in drinking water or managing indoor air radon in private homes. This voluntary program would kick in if EPA's final drinking water standard exceeds the average ambient level in water nationwide. But what level of indoor air quality management balances out the risks associated with radon in water? asked William Diamond in the Office of Groundwater and Drinking Water.
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