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Planning for the cost of clean water.

Planning for the Cost Of Clean Water

The stated goal of the Clean Water Act (CWA) is zero discharge. Major CWA trends in the 1990s will revolve around how we move toward and/or achieve zero discharge. Over the next 10 years, Congress (in the pending CWA reauthorization), the Environmental Protection Agency (EPA), and various states will have to come to grips with whether, and how, the CWA can meet its goal of zero discharge in light of finite resources and potentially severe economic impacts on the regulated community.

Progress under the CWA has occurred in stages. Initially, the focus was on setting and achieving water quality goals. Water quality-based permit limits are, in simplest terms, limits based on the ability of the receiving water body to maintain or attain designated uses (such as drinkable, fishable, or swimable waters).

The next stage emphasized the role of technology-based limits. This effort focused primarily on limiting pollutants at the end of pipe through installation of selected treatment technologies. The technology-based discharge limit program is now mature.

As a result of the 1987 amendments to the CWA, the focus has shifted back to water quality. Numerous water quality standards have been established. Unlike technology-based discharge limits, water quality limits are not based on the capability of pollution control technology but on the ecological attributes of the receiving waters. This means that water quality-based permit limits must be set low enough to ensure compliance with water quality standards, regardless of the availability or effectiveness of treatment technologies.

Some would argue that even the water quality approach, while yielding significant reductions in pollutant discharges, is not enough to achieve the CWA's goal of zero discharge and does not consider the cumulative impact of pollutants discharged on the surrounding environment. In order to move to the next step in achieving zero discharge, new types of pollutant discharge limits will become prevalent in the 1990s.

The problem of cross-media transfers will likely be addressed in permits. Cross-media transfer restrictions recognize that air pollution control devices and industrial wastewater treatment plants prevent pollutants from going into the air or the water, but the toxic ash or sludge produced by those systems can become hazardous waste problems themselves. For example, a permittee may receive a water discharge permit which restricts the level of volatile organic compounds (VOCs) that can be discharged at the end of pipe and it may also limit the amount of VOCs that are limited to the air. Antidegradation, discharge, and substance restrictions for certain waters, biomonitoring, pollution prevention, and multi-media environmental regulation are all components that will get us to the next level of pollution control. In the CWA reauthorization, Congress must determine whether these next steps are sufficient or if zero discharge is the ultimate stopping point.

Next generation of limits

Notwithstanding, in the near term, direct discharges will have to comply with even more comprehensive water quality-based limits and bioassay requirements, which assess the exposure of organisms to the dischargers' end-of-pipe effluent. The next generation of water quality-based limits may require not just installation of the best treatment technologies but also process and chemical use changes and other pollution prevention measures to meet the limits. The pending CWA reauthorization can also be expected to further refine the methods for improving water quality established under the 1987 amendments. A number of approaches are possible. First, legislation may give the EPA primacy in setting water-quality standards rather than relying, as now, on the states to establish them. This approach was adopted in the Great Lakes legislation in 1990.

In a similar vein, new legislation may require that discharge standards be set on the basis of regional or area-wide quality needs, with particular attention paid to the impact of water quality on an area ecosystem as a whole. Even more significantly, the legislation may enhance the EPA's authority to set and enforce permit limits based on biomonitoring.

Congress is also considering another approach to comply with water quality goals through the trading of discharge authorizations and water quality-based waste load allocations. This approach, similar to the approach adopted under the Clean Air Act Amendments of 1990, recognizes that once the amount of pollutants allowed to be discharged to a water body becomes finite, a discharge authorization becomes a valuable commodity that, for purposes of economic efficiency, should be available for sale.

This ideally creates market incentives for existing discharges to reduce their discharge of pollutants in order to expand operations or to sell "extra" discharge authorizations, and for new dischargers to create or retrofit processes that minimize the need for discharge authorizations. A key assessment is determining the best use of a water body and its assimilative capacity to accept constituents. If all water bodies are designated as high-quality drinking water sources or if the degree of gradation between standards for various uses is slight, all point sources may be discharging to waters that have been effectively categorized as "zero discharge."

Finally, certain water bodies will be targeted for specific attention. Such an approach was adopted last year for the Great Lakes and could be adopted again by Congress for the Chesapeake Bay and other coastal waters and estuaries. This approach could focus on toxic reductions, substance discharge prohibitions, and on a new regulatory scheme to protect and enhance sediments. The sediment control approach may even be extended to all waters.

Indirect dischargers

While we have spoken primarily about direct dischargers, the impacts of these trends on indirect dischargers - those who discharge to a Publicly Owned Treatment Works (POTWs) - could be even more immediate and severe. Until recently, POTWs, since they were owned by municipalities, have received minimal enforcement attention. However, recent EPA initiatives have recognized that POWTs factor into the degradation of water quality, and have begun tightening POTW limits through water quality-based limits. It is highly likely that Congress will require the EPA to promulgate additional technology-based categorical effluent standards.

Biomonitoring will be used to detect the toxicity of a municipality's effluent. If toxicity exists, the municipal and/or private sewer authority will be required to pursue the cause of the toxicity upstream. POWTs accepting waste streams from industrial dischargers will be faced with more stringent and expanded limits which the POWTs will have to pass upstream to their industrial dischargers. POTW sludge regulations, increased enforcement, citizen suits, and the use of biomonitoring will force POWTs to eliminate the buffer that indirect discharges often received by virtue of discharging to POTWs.

These initiatives will force indirect dischargers to (1) review their processes to determine whether certain substances can be eliminated or replaced and/or (2) determine whether the installation of equipment to pretreat the effluent stream before it enters the sewer main is a viable economic alternative to disconnecting from the sewer and obtaining their own National Pollutant Discharge Elimination System permit.

The move away from technology-based controls, in the name of zero discharge, shifts the focus of water pollution control away from traditional end-of-pipe controls and back up the pipe to the source of pollution. New types of limits will force the development of such nontraditional controls as pollution prevention, substance discharge restrictions (e.g., zero discharge of persistent toxics), product substitution, process modifications, and retrofits.

While the goal of zero discharge is laudable, the impacts of striving toward that goal must be weighed: * First, the economic costs of increased controls must be considered, bearing in mind that the incremental cost of pollution control increases rapidly between the increments of "some" discharge and "zero" discharge. * Second, as other environmental programs mature, multimedia compliance difficulties for all environmental programs increase.

Legislative decisions to increase environmental controls have always been contentious and are likely to be more so in the 1990s as Congress attempts to address goals such as the CWA's zero discharge through nontraditional methods.

Lisa I. Cooper is an environmental lawyer at Nixon, Hargrave, Devans & Doyle, Washington, D.C. She heads the law firm's water team, concentrating in matters relating to water pollution and wetlands. Neal J. Cabral is an Associate in the firm's environmental practice group.
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Title Annotation:Chairman's Agenda: Managing Environmental Responsibility
Author:Cooper, Lisa I.; Cabral Neal J.
Publication:Directors & Boards
Date:Jun 22, 1991
Previous Article:Planning for the cost of clean air.
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