EPAWATCH Effluent trading could spur abandoned mine cleanups A market-based effluent trading program being proffered by EPA's Region VIII office and a coalition of state and local government agencies, industry representatives, and environmental groups could provide the incentive that companies have been lacking to voluntarily adopt and clean up or remediate abandoned mine sites. In the past, companies and other organizations have been wary of touching such sites for fear of thirdparty lawsuits. Under the current Superfund provision, anyone that assumes responsibility for an abandoned facility containing hazardous waste automatically accepts any liabilities associated with discharges coming from that site. Under the new program that was expected to be launched this summer as a pilot project in Colorado's Clear Creek watershed, companies, cities, or any other group would receive credits for cleaning up abandoned sites. They could then either use these credits against their own discharges, deposit them in a bank for future use, trade and sell them on the open market, or simply retire them, said Larry Selzer, director of the Conservation Fund, an environmental organization that is serving as the program's sponsor. What makes this program different from other trading schemes is the concept of trading "out-of-kind" pollutants, such as metals for nutrients or habitat restoration for metals, said Dan Lueke, director of the Environmental Defense Fund's Rocky Mountain office. The idea originated with Coors Brewing Co., which sits at the bottom of the Clear Creek watershed and depends on clean water for its beer production but also has discharges. However, any trades have to result in net water quality improvement, and trades can only occur © 1999 American Chemical Society
within a given watershed, not across watersheds, said Holly Fliniau, Clear Creek project manager and watershed coordinator for the Region VIII office. For example, "if we identify a certain stream segment impacted by metals, a company could come in, clean it up, and in the process move the metal-impacted segment into the [healthy] target zone," Fliniau said. "They could then discharge more nutrients at a different location within the watershed" but never at levels that exceed water quality standards, she added. Liability relief has been a major obstacle in getting the pilot off the ground, but the regional office has approved the use of an administrative order of consent concept existing under Superfund, which offers liability protection for any conditions that existed prior to cleanup. ASARCO, Inc., a mining company involved in the pilot, made the liability relief protection a condition for its participation because "we don't want to volunteer to be good guys only to find out that by having done so, we've gotten ourselves trapped," said Bob Coner, ASARCO's associate general counsel. "The key thing is that we have no interest in assuming any long-term responsibility. We want to go in, fix the problem, and help identify an approach that everyone can agree on," Coner said. He expected the first pilot to be completed by the fall. If this unique trading scheme works, its potential impact could be "profound," Selzer said. The Clear Creek watershed alone has more than 1300 abandoned mine sites, not to mention other hardrock mining relics across the West, coal mines in the Appalachian region, and metal ore mines in the Midwest and Great Lakes region. "All told, more than half of the United States is dealing with this issue in a significant way, and there's no mechanism to handle it except what we're proposing," Selzer said.
NRDC report backs longdelayed stormwater rules A Natural Resources Defense Council report supports EPA's proposed rules to clean up stormwater runoff and storm sewer discharges in small cities and notes that the proposal's cleanup strategies have been successfully employed by more than 150 urban towns. At the same time, however, some states are complaining that the EPA proposal will undermine many state-run programs already in place. State officials are pressing EPA to approve more stringent state programs now in place, in lieu of the proposed federal program. EPA's proposal will pressure states with complex programs to alter them to meet the lowest common denominator, because as many as 30 states are prohibited from having stormwater rules that are more stringent than EPA's, said Linda Eichmiller, deputy director of the Association of State and Interstate Water Pollution Control Administrators, in Washington, D.C. Florida, for example, has a comprehensive stormwater program that goes beyond EPA's permits by requiring wetlands protection and regulating stormwater quality and quantity. Urban stormwater runoff, which EPA says is responsible for nearly half of all impaired estuarine waters, has been regulated since 1992 on large construction sites and in cities with more than 100,000 people. Now, as part of the rulemaking, urban areas with less than 100,000 people and construction sites of less than 5 acres will be required to obtain federal water pollution permits. Cities, meanwhile, must develop cleanup plans that include best management practices (BMPs) such as detecting and eliminating any illegal connections from residential or commercial sewage pipes to city stormwater lines that flow into nearby waterways. The rules, delayed since 1992, were proposed in 1998 [Fed. Regist. 1998,
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63(6) 1535-1643), and should become final in October. Eric Livingston, stormwater administrator for the Florida Department of Environmental Protection, said that many states already have BMPs to control construction runoff. But states should take steps that go beyond EPA's proposal, by encouraging partnerships between state and local agencies. George Utting, stormwater team leader in EPA's Office of Wastewater Management, disagreed that the agency's proposals will dumb down existing programs. The 1992 regulation of stormwater from large cities has not had a negative impact on Massachusetts comprehensive program, Utting said. The most successful stormwater programs rely on enforceable permits, which are at the heart of EPA's proposed rules, said George Aponte Clarke NRDC's stormwater project coordinator. Utting said he is confident that EPA and the states can work out any issues raised by the rulemaking.
Politics influence Super fund decisions, study finds Political clout, including active voters, environmental organizations, and political representatives with strong environmental voting records, influences cleanup decisions made by federal and state regulators at Superfund sites, according to a study released by the American Enterprise Institute-Brookings Joint Center for Regulatory Studies. But the results are based on faulty data, according to an EPA spokesperson. Made public in April, "Are Risk Regulators Rational? Evidence from Hazardous Waste Cleanup Decisions," by authors W Kip Viscusi, professor of law in economics at Harvard University, and Duke University public policy professor James T. Hamilton bases its conclusions on reports from 130 hazardous waste sites where cleanup decisions were made in 1991 or 1992. The $1 million, EPA-funded study, which took more than five years to complete, will appear as a chapter in the authors' forthcoming book, Calculating Risks? The Spatial and Political Dimensions of Hazardous Waste Policy, which is expected to be published in September by MIT Press. In 1993, EPA instituted administrative reforms that significantly changed how the Superfund pro-
gram operates. Administrative reforms, including tying future land use to the level of cleanup, speak to many of the authors' concerns by allowing proposed remedial actions to be re-evaluated. Viscusi and Hamilton enter the "how clean is clean" debate with a cost-benefit approach that they say provides more equity to communities with less political clout. Their research reports that "communities with higher voter turnouts are more likely to have lower risks . . . remaining after final site cleanup." The authors urge EPA to calculate risk assessments based on averages, rather than conservative, worst-case scenario data. Officials in the Office of Policy, Planning and Evaluation (OPPE) are still reviewing the research, which is based upon a prior study by the same authors that the agency criticized heavily. "EPA raised fundamental concerns about the assumptions and methodology used in that study," according to EPA spokesperson Lauren Milone Mical. "Those concerns were never addressed by the researchers. Since that original badly flawed study is the foundation for this new paper, the new work is equally flawed," she said.
Dioxins added to TMDL list for San Francisco Bay EPA Region K added 7 dioxins, 10 furans, and 12 "dioxin-like" polychlorinated biphenyls, as well as the "legacy" pesticides DDT, dieldrin, and chlordane, to the list of high-priority contaminants that must be controlled or cleaned up in San Francisco Bay. For determining the human health risk that went into the listing decision, EPA used a worst-case, rather than an average-exposure scenario, related to fish consumption. "These compounds are most responsible for increases in human cancer risk due to consumption of contaminated fish from the Bay," said Alexis Strauss, acting director of Region IX's Water Division. San Francisco Bay and the newly listed contaminants are among more than 470 waterways and 1400 contaminants on California's biennial target list for the establishment of Total Maximum Daily Loads {TMDLs). The TMDL program, a complicated Clean Water Act requirement that most states are hav-
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ing trouble implementing, calls on states to develop long-term pollution control and cleanup plans for the listed contaminants and waterways. California's list was finalized in early May, with EPA overriding the objections of state regulators who did not believe there was sufficient evidence to warrant including dioxin and similar compounds on the TMDL list. They argued that the levels in fish from San Francisco Bay are no greater than national background levels. Dioxin is included on TMDLs elsewhere, including waterways near pulp mills in the Southeast and the Columbia River in the Northwest. Dioxin is a byproduct of industrial processes involving chlorinated chemicals; it has been linked to cancer, reproductive disorders, and other human health problems at extremely low levels. An EPA risk assessment determined that 40% of the increased cancer risk to Bay anglers was associated with dioxin, said David Smith, TMDL team leader for Region DC High-end consumers—those eating a quarter pound offish daily—were facing between a 1 in 1000 and 1 in 10,000 cancer risk, Smith said. EPA typically relies on average consumption data when listing TMDL contaminants, but for San Francisco Bay the regulators used the worst-case scenario—the amount of dioxin consumed by subsistence anglers, said Smith. The result was compelling enough to allow a decision to list dioxin "based on the unique characteristics of the risk in San Francisco Bay," said Smith. And in keeping with EPA policy to protect sensitive subpopulations and President Clinton's executive order on environmental justice, "we viewed the risk from dioxin exposure as significant," he added. The updated TMDL list was encouraged by a citizen petition filed May 12, 1998, by Communities for a Better Environment and the Bay Area's Zero Dioxin Exposure Alliance, a coalition of about 48 environmental and community-based groups. While these groups are pushing for a TMDL of zero for dioxin and similar compounds, Smith said the state and EPA "will need additional monitoring to fully characterize the problem." The high cost of a dioxin test, $3000 for one fish-tissue sample, contributes to that challenge. EPA plans to propose rules for the TMDL program later this summer.
