Toxic Water Pollutants Regulation
In response to this new Congressional mandate, EPA redoubled its efforts to promote and assist state adoption of numerical water-quality standards for priority toxic pollutants. EPA’s efforts included the development and issuance of guidance to the states on acceptable implementation procedures. EPA attempted to provide the maximum flexibility in its options that complied not only with the express statutory language but also with the ultimate congressional objective: prompt adoption of numeric toxic pollutant criteria. The Agency believed that flexibility was important so that each state could comply with Section 303 (c) (2) (B) within its resource constraints. EPA distributed final guidance on December 12, 1988. This guidance was similar to earlier drafts available for review by the states. The availability of the guidance was published in the Federal Register on January 5, 1989 (54 FR 346).
The structure of Section 303 (c) is to require states to review their water-quality standards at least once each three-year period. Section 303 (c) (2) (B) instructs states to include reviews for toxics criteria whenever they initiate a triennial review. EPA initially looked at February
4, 1990, the 3-year anniversary of the 1987 CWA amendments, as a convenient point to index state compliance. The April 17, 1990 Federal Register Notice (55 FR 14350) used this index point for the preliminary assessment of state compliance. However, some states were very nearly completing their state administrative processes for ongoing reviews when the 1987 amendments were enacted and could not legally amend those proceedings to address additional toxics criteria.
Therefore, in the interest of fairness, and to provide such states a full 3-year review period, EPA’s FY 1990 Agency Operating Guidance provided that states should complete adoption of the numeric criteria to meet Section 303 (c) (2) (B) by September 30, 1990.
Section 303 (c) does not provide penalties for states that do not complete timely water-quality standard reviews. In no previous case had an EPA Administrator found that state failure to complete a review within three years jeopardized the public health or welfare to such an extent that promulgation of Federal standards pursuant to Section 303 (c) (4) (B) was justified.
However, the pre-1987 CWA never mandated state adoption of priority toxic pollutants or other specific criteria. EPA relied on its water-quality standards regulation (40 CFR 131.11) and its criteria and program guidance to the states on appropriate parametric coverage in state water quality standards, including toxic pollutants.
With Congressional concern exhibited in the legislative history for the 1987 Amendments regarding undue delays by states and EPA, and because states have been explicitly required to adopt numeric criteria for appropriate priority toxic pollutants since 1983, the Agency is proceeding to promulgate Federal standards pursuant to Section 303 (c) (4) (B) of the CWA and 40 CFR 131.22 (b).
States have made substantial recent progress in the adoption, and EPA approval, of toxic pollutant water-quality standards. Furthermore, virtually all states have at least proposed new toxics criteria for priority toxic pollutants since Section 303 (c) (2) (B) was added to the CWA in February of 1987. Unfortunately, not all such state proposals address, in a comprehensive manner, the requirements of Section 303 (c) (2) (B). For example, some states have proposed to adopt criteria to protect aquatic life, but not human health; other states have proposed human health criteria that do not address major exposure pathways (such as the combination of both fish consumption and drinking water). In addition, in some cases final adoption of proposed state toxics criteria that would be approved by EPA has been substantially delayed due to controversial and difficult issues associated with the toxic pollutant criteria adoption process.
Biological Criteria While the overall mandate of the Clean Water Act may now be more clearly stated and understood, the tools needed are still under development, and their full application is being worked out. The direction is towards a more comprehensive approach to water quality protection, which might be more appropriately termed “water resource protection” to encompass the living resources and their habitat along with the water itself.
In 1991, EPA directed states to adopt biological criteria into their water-quality standards by September 30, 1993. To assist the states, EPA issued its “Policy on the Use of Biological Assessments and Criteria in the Water-Quality Program,” which sets forth the key policy directions governing the shift to the use of biological criteria:
“Biological surveys shall be fully integrated with toxicity and chemical-specific assessment methods in state water-quality programs.”
Biological surveys should be used together with whole-effluent and ambient toxicity testing, and chemical-specific analyses to assess the attainment/nonattainment of designated aquatic life uses in state water-quality standards.”
“If any one of the three assessment methods demonstrate that water-quality standards are not attained, it is EPA’s policy that appropriate action should be taken to achieve attainment, including use of regulatory authority” (the independent applicability policy).
“States should designate aquatic life uses that appropriately address biological integrity and adopt biological criteria necessary to protect those uses.”
These policy statements are founded on the existing language and authorities in Clean Water Act Sections 303 (c) (2) (A) and (B). EPA defined biological criteria as “numerical values or narrative expressions used to describe the expected structure and function of the aquatic community.”
Most states currently conduct biological surveys. These consist of the collection and analysis of resident aquatic-community data and a subsequent determination of the aquatic community’s structure and function. A limiting factor in the number of surveys conducted is simply the funding to support field sampling. Most states also take their survey data through the next level of analysis, which is a biological assessment, in which the biological condition of the water body is evaluated.
A state needs to conduct a biological assessment to justify designated waters as having uses less than the Clean Water Act goal of “fishable/swimmable” [Sec. 101 (a) (2)]. Implementing biological criteria requires that the state establish what the expected condition of a biological community should be.
This expected condition (or reference condition) is based on measurements at either unimpacted sites or sites that are minimally impacted by human activities. A key element of developing and adopting biological criteria is developing a set of metrics (biological measurements) and indices (summations of those metrics) that are sensitive to reflecting the community changes that occur as a result of human perturbation. Metrics may include measures of species richness, percentages of species of a particular feeding type, and measures of species abundance and condition. The development of metrics and indices have been major technical advances that have effectively brought the field to the point of implementing biological integrity measures.
Aside from the need for additional monitoring and data as a basis for biological criteria, the largest impediment is currently related to the question of how or whether biological criteria should be translated directly into NPDES permit requirements. A strict reading of the NPDES regulations leads some individuals to conclude that every water-quality standard potentially affected by a discharge must have a specific effluent limit. In the case of biological criteria, the direct translation isn’t always possible. The preferred approach is to use biological criteria as a primary means to identify impaired waters that will then need additional study. Appropriate discharge controls can then be applied.
The other area of contention in adopting biocriteria is the EPA policy of “independent applicability.” This policy recognizes that chemical-specific criteria, toxicity testing (WET tests), and biological criteria each have unique as well as overlapping attributes, limitations, and program applications. No single approach is superior to another; rather, the approaches are complementary. When any one of these approaches indicates that water quality is impaired, appropriate regulatory action is needed. Critics of this approach most frequently cite biological criteria as the superior, or determining, measure and would use it to override an exceedance of chemical-specific criteria.
EPA and many states are now moving towards a watershed or basin management approach to water management. This is a holistic approach that looks at the multiple stresses and activities that affect a basin and evaluates these effects in the context of the survival of ecological systems. Biological criteria are recognized by states as a necessary tool for detecting impacts to important aquatic resources that would otherwise be missed, particularly those caused by nonpoint source activities, and for defining the desired endpoint of environmental restoration activities.
To assist states, EPA has issued programmatic guidance (Biological Criteria: National Program Guidance for Surface Waters, April 1990; Procedures for Initiating Narrative Biological Criteria, October 1992). In addition, EPA will be issuing over the next couple of years technical guidance specific to developing biological criteria for streams and small rivers, lakes and reservoirs, estuaries, and wetlands.
Metal Bioavailability and Toxicity another area of policy and regulatory change that bears directly on questions of biological integrity is the application of toxic-metal water-quality criteria. EPA is in the midst of reconsidering its approach to implementing toxic metals criteria. This was prompted in part by the difficulty that some dischargers are having in meeting the state ambient water-quality criteria for metals, which generally are expressed as total recoverable metals (a measurement that includes the metal dissolved in water plus metal that becomes dissolved when the sample is treated with acid). At issue is whether the criteria can be expressed in a form that more accurately addresses the toxicity of the metal to aquatic life, thereby providing the desired level of aquatic life protection, while allowing more leeway in the total amount of metal discharged. This is a technically complex issue that will require long-term research even if short-term solutions are implemented.
The bioavailability, and hence the toxicity, of metal depends on the physical and chemical form of the metal, which in turn depends on the chemical characteristics of the surrounding water. The dissolved form of the metal is generally viewed as more bioavailable and therefore more toxic than the particulate form. Particulate matter and dissolved organic matter can bind the metal, making it less bioavailable. What is not well known or documented is the various chemical transformations that occur both within the effluent stream and when the effluent reaches and mixes with the receiving water. Metal that is not bioavailable in the effluent may become bioavailable under ambient chemical conditions.
The NPDES regulations (40 CFR 122.45) require effluent limits to be expressed as total recoverable metal. This requirement makes sense as a means to monitor and regulate both the total metal loading and also the effectiveness of wastewater treatment that involves chemical precipitation of the metal.
From the perspective of ecological integrity called for in the Clean Water Act, any adjustment to the implementation of toxic metals criteria needs to be integrated with both sediment criteria and biological criteria to provide ecosystem protection envisioned by the Act.
Regulatory Direction EPA and states are directed by the Clean Water Act to develop programs to meet the Act’s stated objective: “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” [Sec. 101 (a)]. Efforts to date have emphasized “clean water” quite literally, by focusing on the chemical makeup of discharges and their compliance with chemical water-quality standards established for surface water bodies. These programs have successfully addressed many water-pollution problems, but they are not sufficient to identify and address all of them. A large gap in the current regulatory scheme is the absence of a direct measure of the condition of the biological resources that we are intending to protect (the biological integrity of the water body). Without such a measure it will be difficult to determine whether our water-management approaches are successful in meeting the intent of the Act.
Taken together, chemical, physical, and biological integrity are equivalent to the “ecological integrity” of a water body. It is highly likely the future will see interpretation of biological integrity and ecological integrity, and the management of ecological systems, assuming a much more prominent role in water-quality management.
The structure of Section 303 (c) is to require states to review their water-quality standards at least once each three-year period. Section 303 (c) (2) (B) instructs states to include reviews for toxics criteria whenever they initiate a triennial review. EPA initially looked at February
4, 1990, the 3-year anniversary of the 1987 CWA amendments, as a convenient point to index state compliance. The April 17, 1990 Federal Register Notice (55 FR 14350) used this index point for the preliminary assessment of state compliance. However, some states were very nearly completing their state administrative processes for ongoing reviews when the 1987 amendments were enacted and could not legally amend those proceedings to address additional toxics criteria.
Therefore, in the interest of fairness, and to provide such states a full 3-year review period, EPA’s FY 1990 Agency Operating Guidance provided that states should complete adoption of the numeric criteria to meet Section 303 (c) (2) (B) by September 30, 1990.
Section 303 (c) does not provide penalties for states that do not complete timely water-quality standard reviews. In no previous case had an EPA Administrator found that state failure to complete a review within three years jeopardized the public health or welfare to such an extent that promulgation of Federal standards pursuant to Section 303 (c) (4) (B) was justified.
However, the pre-1987 CWA never mandated state adoption of priority toxic pollutants or other specific criteria. EPA relied on its water-quality standards regulation (40 CFR 131.11) and its criteria and program guidance to the states on appropriate parametric coverage in state water quality standards, including toxic pollutants.
With Congressional concern exhibited in the legislative history for the 1987 Amendments regarding undue delays by states and EPA, and because states have been explicitly required to adopt numeric criteria for appropriate priority toxic pollutants since 1983, the Agency is proceeding to promulgate Federal standards pursuant to Section 303 (c) (4) (B) of the CWA and 40 CFR 131.22 (b).
States have made substantial recent progress in the adoption, and EPA approval, of toxic pollutant water-quality standards. Furthermore, virtually all states have at least proposed new toxics criteria for priority toxic pollutants since Section 303 (c) (2) (B) was added to the CWA in February of 1987. Unfortunately, not all such state proposals address, in a comprehensive manner, the requirements of Section 303 (c) (2) (B). For example, some states have proposed to adopt criteria to protect aquatic life, but not human health; other states have proposed human health criteria that do not address major exposure pathways (such as the combination of both fish consumption and drinking water). In addition, in some cases final adoption of proposed state toxics criteria that would be approved by EPA has been substantially delayed due to controversial and difficult issues associated with the toxic pollutant criteria adoption process.
Biological Criteria While the overall mandate of the Clean Water Act may now be more clearly stated and understood, the tools needed are still under development, and their full application is being worked out. The direction is towards a more comprehensive approach to water quality protection, which might be more appropriately termed “water resource protection” to encompass the living resources and their habitat along with the water itself.
In 1991, EPA directed states to adopt biological criteria into their water-quality standards by September 30, 1993. To assist the states, EPA issued its “Policy on the Use of Biological Assessments and Criteria in the Water-Quality Program,” which sets forth the key policy directions governing the shift to the use of biological criteria:
“Biological surveys shall be fully integrated with toxicity and chemical-specific assessment methods in state water-quality programs.”
Biological surveys should be used together with whole-effluent and ambient toxicity testing, and chemical-specific analyses to assess the attainment/nonattainment of designated aquatic life uses in state water-quality standards.”
“If any one of the three assessment methods demonstrate that water-quality standards are not attained, it is EPA’s policy that appropriate action should be taken to achieve attainment, including use of regulatory authority” (the independent applicability policy).
“States should designate aquatic life uses that appropriately address biological integrity and adopt biological criteria necessary to protect those uses.”
These policy statements are founded on the existing language and authorities in Clean Water Act Sections 303 (c) (2) (A) and (B). EPA defined biological criteria as “numerical values or narrative expressions used to describe the expected structure and function of the aquatic community.”
Most states currently conduct biological surveys. These consist of the collection and analysis of resident aquatic-community data and a subsequent determination of the aquatic community’s structure and function. A limiting factor in the number of surveys conducted is simply the funding to support field sampling. Most states also take their survey data through the next level of analysis, which is a biological assessment, in which the biological condition of the water body is evaluated.
A state needs to conduct a biological assessment to justify designated waters as having uses less than the Clean Water Act goal of “fishable/swimmable” [Sec. 101 (a) (2)]. Implementing biological criteria requires that the state establish what the expected condition of a biological community should be.
This expected condition (or reference condition) is based on measurements at either unimpacted sites or sites that are minimally impacted by human activities. A key element of developing and adopting biological criteria is developing a set of metrics (biological measurements) and indices (summations of those metrics) that are sensitive to reflecting the community changes that occur as a result of human perturbation. Metrics may include measures of species richness, percentages of species of a particular feeding type, and measures of species abundance and condition. The development of metrics and indices have been major technical advances that have effectively brought the field to the point of implementing biological integrity measures.
Aside from the need for additional monitoring and data as a basis for biological criteria, the largest impediment is currently related to the question of how or whether biological criteria should be translated directly into NPDES permit requirements. A strict reading of the NPDES regulations leads some individuals to conclude that every water-quality standard potentially affected by a discharge must have a specific effluent limit. In the case of biological criteria, the direct translation isn’t always possible. The preferred approach is to use biological criteria as a primary means to identify impaired waters that will then need additional study. Appropriate discharge controls can then be applied.
The other area of contention in adopting biocriteria is the EPA policy of “independent applicability.” This policy recognizes that chemical-specific criteria, toxicity testing (WET tests), and biological criteria each have unique as well as overlapping attributes, limitations, and program applications. No single approach is superior to another; rather, the approaches are complementary. When any one of these approaches indicates that water quality is impaired, appropriate regulatory action is needed. Critics of this approach most frequently cite biological criteria as the superior, or determining, measure and would use it to override an exceedance of chemical-specific criteria.
EPA and many states are now moving towards a watershed or basin management approach to water management. This is a holistic approach that looks at the multiple stresses and activities that affect a basin and evaluates these effects in the context of the survival of ecological systems. Biological criteria are recognized by states as a necessary tool for detecting impacts to important aquatic resources that would otherwise be missed, particularly those caused by nonpoint source activities, and for defining the desired endpoint of environmental restoration activities.
To assist states, EPA has issued programmatic guidance (Biological Criteria: National Program Guidance for Surface Waters, April 1990; Procedures for Initiating Narrative Biological Criteria, October 1992). In addition, EPA will be issuing over the next couple of years technical guidance specific to developing biological criteria for streams and small rivers, lakes and reservoirs, estuaries, and wetlands.
Metal Bioavailability and Toxicity another area of policy and regulatory change that bears directly on questions of biological integrity is the application of toxic-metal water-quality criteria. EPA is in the midst of reconsidering its approach to implementing toxic metals criteria. This was prompted in part by the difficulty that some dischargers are having in meeting the state ambient water-quality criteria for metals, which generally are expressed as total recoverable metals (a measurement that includes the metal dissolved in water plus metal that becomes dissolved when the sample is treated with acid). At issue is whether the criteria can be expressed in a form that more accurately addresses the toxicity of the metal to aquatic life, thereby providing the desired level of aquatic life protection, while allowing more leeway in the total amount of metal discharged. This is a technically complex issue that will require long-term research even if short-term solutions are implemented.
The bioavailability, and hence the toxicity, of metal depends on the physical and chemical form of the metal, which in turn depends on the chemical characteristics of the surrounding water. The dissolved form of the metal is generally viewed as more bioavailable and therefore more toxic than the particulate form. Particulate matter and dissolved organic matter can bind the metal, making it less bioavailable. What is not well known or documented is the various chemical transformations that occur both within the effluent stream and when the effluent reaches and mixes with the receiving water. Metal that is not bioavailable in the effluent may become bioavailable under ambient chemical conditions.
The NPDES regulations (40 CFR 122.45) require effluent limits to be expressed as total recoverable metal. This requirement makes sense as a means to monitor and regulate both the total metal loading and also the effectiveness of wastewater treatment that involves chemical precipitation of the metal.
From the perspective of ecological integrity called for in the Clean Water Act, any adjustment to the implementation of toxic metals criteria needs to be integrated with both sediment criteria and biological criteria to provide ecosystem protection envisioned by the Act.
Regulatory Direction EPA and states are directed by the Clean Water Act to develop programs to meet the Act’s stated objective: “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” [Sec. 101 (a)]. Efforts to date have emphasized “clean water” quite literally, by focusing on the chemical makeup of discharges and their compliance with chemical water-quality standards established for surface water bodies. These programs have successfully addressed many water-pollution problems, but they are not sufficient to identify and address all of them. A large gap in the current regulatory scheme is the absence of a direct measure of the condition of the biological resources that we are intending to protect (the biological integrity of the water body). Without such a measure it will be difficult to determine whether our water-management approaches are successful in meeting the intent of the Act.
Taken together, chemical, physical, and biological integrity are equivalent to the “ecological integrity” of a water body. It is highly likely the future will see interpretation of biological integrity and ecological integrity, and the management of ecological systems, assuming a much more prominent role in water-quality management.
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