20% MUNICIPAL AND INDUSTRIAL FACILITIES NOT COMPLYING WITH WATER DISCHARGE PERMITS 15% 10% 5% 0% 1982 1983 1984 1985 1986# 1987 1988 1989 STATEMENT OF the National Association of Metal FinISHERS INTRODUCTION The National Association of Metal Finishers ("NAMF") appreciates the opportunity to submit this testimony on S. 1081, a bill which would amend the Clean Water Act in significant respects. NAMF is a trade association representing numerous metal finishing companies, including small, job-shop electroplating firms. NAMF's members generate wastewater which they discharge after treatment either to a publicly owned treatment works ("POTW") or directly to U.S. waters, in accordance with applicable requirements of the Clean Water Act. Consequently, NAMF's members will be significantly affected by amendments to the Act. NAMF believes that the focus of S. 1081-which would impose more and more stringent requirements on industries that are already heavily regulated by the Clean Water Act-is wrong. Compliance by regulated industries, such as NAMF's members, with the requirements of the Clean Water Act has resulted in a significant improvement in the quality of the Nation's waters. Data collected by EPA, which the environmental community does not dispute, demonstrate that nonpoint sources of pollution, which are virtually unregulated by the Clean Water Act, are responsible for 75 percent of the remaining water quality problems in lakes and 65 percent of the remaining problems in rivers. By contrast, less than 15 percent of the remaining water quality problems are due to industrial discharges. Yet, inexplicably, S. 1081 would impose more stringent, burdensome requirements on point source dischargers. It should be obvious from the EPA data that very little water quality improvement will result from further reductions in pollutant discharges by point sources, simply because point sources are no longer a significant cause of water quality impairment. Congress should therefore recognize the significant achievements that point source dischargers have made to date, and should focus its legislative efforts on regulating nonpoint source discharges. NAMF's comments on particular sections of S. 1081 are set forth below. 1. EFFLUENT GUIDELINES: SECTION 7 A. Establishment of Discharge Limits S. 1081 provides that, in developing "best available technology” (“BAT”) effluent limitations guidelines, EPA must require "toxic use and waste reduction measures and practices, including changes in processes, products or raw materials that reduce, avoid or eliminate the use of toxic or hazardous substances and the generation of toxic or hazardous byproducts." The bill also requires that pretreatment standards mandate such toxic use and waste reduction measures. While NAMF fully supports the goals of pollution prevention and toxic use reduction, which this provision of S. 1081 is intended to address, any efforts in these areas should be voluntary and site-specific, not mandated across the board by EPA. This radical departure from the way in which point source discharges have been regulated during the past twenty years under the Clean Water Act is ill-advised, for several reasons. First, Congress decided in 1972 that EPA should not mandate how dischargers should reduce the level of pollutants in their discharges. Thus, while EPA was directed by the 1972 amendments to the Act to consider "process changes," along with other enumerated factors, when it promulgated discharge limits, the Agency was not permitted to require the adoption of particular process changes or the use of particular treatment equipment to achieve compliance with such limits. Rather, the decision how to come into compliance with effluent limitations was left to individual facilities. This regulatory approach, which encourages dischargers to develop innovative approaches to come into compliance, has worked well, and there is neither a need nor a justification for altering it now. Second, American industry is extraordinarily diverse. There are literally tens of thousands of different processes, many of which are highly proprietary. Process changes and raw material substitution are very complicated endeavors, ones that are often studied and tested by companies for years before being implemented. EPA is simply not in a position to mandate process changes or raw material substitution, without wreaking havoc on American industry. Accordingly, Congress should not require the Agency to mandate such changes. S. 1081 also provides that, in developing effluent limitations guidelines, EPA should prohibit or limit the release of pollutants to other environmental media. While the goal of avoiding the unnecessary transfer of pollutants from one media to another may be laudable, this provision of S. 1081 it is overly simplistic. Some pollutants, such as metals, are naturally occurring and ubiquitous and, unlike organics, cannot be destroyed. While metals from plating operations can effectively be re moved from wastewater, the application of treatment technology to remove the metals from the water will concentrate the metals in the sludge. There they can be appropriately managed. S. 1081 fails to reflect the fact that such a transfer of pollutants from one media to another is sometimes necessary and environmentally beneficial. EPA is already required by the Act to take into account in developing effluent limitations guidelines the impact of its proposed regulations on other environmental media. Accordingly, this provision of S. 1081 banning crossmedia transfers of pollut ants is unnecessary and should be deleted. B. Fees Section 7 of S. 1081 requires industry to pay for the costs EPA incurs in developing effluent limitations guidelines. This is wholly inappropriate. Reports are published almost monthly of funds ill-spent by EPA, the most recent being a study of the vast sums of money EPA has wasted in the Superfund program paying oversight contractors who have performed no oversight functions. If industry is required to pay for the cost of developing guidelines, then EPA will have no incentive to seek to develop such guidelines in a cost-effective manner. Congress should not ask industry to write EPA a blank check. C. Data Gathering NAMF also objects to the provision of Section 7 that would exempt EPA's datacollection activities from OMB review. Such review is a necessary check on the exercise of EPA's otherwise broad authority to require facilities to respond to EPA's endless questionnaires and other data-gathering efforts. II. WATER QUALITY STANDARDS: SECTION 8 Prior to the adoption of the 1972 Amendments, the primary mechanism for controlling water pollution was water quality standards developed by the States. In 1972, Congress decided to establish a nationwide, technology-based program of water pollution control as well, but Congress left with the States the primary responsibility for developing and implementing water quality standards, with EPA oversight. A fundamental element of State water quality standards is the designation of the use of each State water body-as drinkable, fishable/swimmable, industrial, agricultural or navigational. This use designation has always been regarded as the sole province of the States. Now, Congress proposes in S. 1081 to require all waterbodies to be designated as fishable/swimmable within six years. This proposal intrudes into an area of traditional State sovereignty, and fails to recognize that, because of background concentrations of pollutants or historic uses, some waterbodies may never be fishable/swimmable. Requiring the adoption of such a use designation for all waterbodies will result in the development of unachievable water quality standards and the imposition of unnecessarily stringent controls on dischargers. This requirement should therefore be eliminated from the bill. S. 1081 also requires the adoption of sediment criteria according to a specified timetable. While NAMF recognizes the need to protect sediments, no valid methodology for developing such criteria has yet been established, despite the fact that EPA has devoted significant time and resources to developing one. In these circumstances, it is ill-advised and inappropriate for Congress to mandate the development of sediment criteria in accordance with a fixed timetable. III. TOXIC POLLUTION CONTROLS: SECTION 11 Section 11 of S. 1081 prohibits the discharge of certain listed chemicals and directs EPA to bar the discharge of other chemicals that meet certain bioconcentration levels or are "as toxic as" the listed chemicals. Any decision to ban the discharge of pollutants should be based upon sound science and risk assessments. Thus, Congress should not arbitrarily establish bioconcentration levels above which pollutants will be prohibited from being discharged. Banning the discharge of pollutants also fails to take into account background concentrations of such pollutants in intake water and residual levels of such pollutants in wastewater as a result of historic contamination. Finally, the bill does not define what it means for a pollutant to be "as toxic as" another. Until these issues have been given more thoughtful consideration, Congress should not rush to adopt these provisions of the Act. IV. PRETREATMENT: SECTION 12 Since most of NAMF's members discharge their treated wastewaters to POTWs, the pretreatment provisions of S. 1081 are of particular interest to us. In addition to the toxic use reduction and cross-media issues discussed in Section I above, we have serious concerns about the pretreatment provisions of the bill. A. Establishment of Pretreatment Standards Section 307 of the Clean Water Act requires EPA to establish pretreatment standards for pollutants which are not susceptible to treatment by POTWs or would interfere with the operation of POTWs. S. 1081 would modify this section to require that pretreatment regulations "prevent the discharge of any pollutant through treatment works, including pollutants which interfere with, pass through, prevent the beneficial reuse or cause or contribute to the contamination of sewage sludge or are otherwise compatible with such [treatment] works." NAMF has serious concerns about this proposed modification to the pretreatment standards provision. Virtually any pollutant may "contribute" to the contamination of sewage sludge. Also, even when both the industrial discharger and the POTW are effectively treating a pollutant, very low levels of the pollutant are discharged by the POTW. If this is considered to be the discharge of a pollutant "through" a POTW which would be prohibited by S. 1081, then the practical effect of this amendment would be to ban point source discharges to POTWs. While we do not believe that Congress inte..ded this result, the language of S. 1081 can be interpreted to require it. Because there is no evidence that the existing provisions of Section 307 of the Act have performed poorly, they should be left unchanged. S. 1081 also provides that pretreatment standards may not be less stringent than any effluent guidelines for such pollutants and category or class of sources. In essence, this means that pretreatment standards may not be less stringent than BAT limits for an industrial category. This amendment fails to recognize two fundamental differences between direct and indirect dischargers. First, indirect dischargers are often located on small sites in the middle of cities. As a result, such dischargers do not have sufficient land available to install large wastewater treatment systems. By contrast, most direct dischargers are located near a water body, away from the congestion of a city, and have more space available in which to install a treatment system. The efficacy of many model treatment systems is dependent upon their size. For example, wastewater is held longer in a larger biological treatment system. This longer retention time enables the bugs to degrade the organic matter to a greater extent than would be possible with a shorter retention time. What this means that indirect dischargers may not have adequate space to install a treatment system that is capable of achieving the same pollutant reductions as a system installed by direct dischargers. Second, Congress recognized in the 1972 and 1977 amendments to the Clean Water Act that wastes that are discharged by industrial facilities to POTWs are treated twice: once by the industrial facility to comply with pretreatment standards, and again by the POTW prior to discharge. Congress sought to encourage such joint treatment by industry and POTWs, and to avoid unnecessary expenses by industry for redundant treatment. Consequently, Congress recognized that it was unnecessary for indirect dischargers to treat their wastes to the same level as direct dischargers. The requirement in S. 1081 that pretreatment standards be no less stringent than BAT requirements for the same industry would create the very scenario that Congress sought to avoid in 1972 and 1977. În particular, it would require the installation of redundant treatment systems and the expenditure of large sums of money by industry for treatments that is unnecessary. This amendment would also encourage indirect dischargers who are able to do so to discharge their wastewaters directly to U.S. waters, rather than to a POTW. This will occur because indirect dischargers will be required to spend the same amount of money as direct dischargers to install treatment technology, and then will be required to pay a user fee to the POTW as well for treatment of their wastes. If industrial dischargers remove their wastewaters from POTWs, then POTWs will lose a significant source of revenue. In developing pretreatment standards under the existing provisions of the Clean Water Act, EPA has promulgated standards based upon the "best available technology" for indirect dischargers, which may be different from the "best available technology" for direct dischargers in the same industry. EPA has also taken into account the fact that industrial wastes discharged to the sewers will be treated by biological treatment systems when they reach the POTWs. This system has worked well for the past twenty years, and there is no need to change it now. |