EPA Petition Executive Summary

I. Introduction

Much of the efficacy of the Clean Water Act relies upon the identification of pollutants on the Toxic Pollutant List.  Despite the thousands of new chemicals brought into commerce in recent decades—and now found in the nation’s waterways, drinking water wells, sediment, fish, and wildlife—EPA has not added a single pollutant to the list in 47 years.  The ramifications to human health and the environment are huge.  By failing to place the PFAS “forever” chemicals on the list, EPA jeopardizes its goal of controlling these highly toxic, persistent pollutants.  EPA cannot meet its environmental justice goals without adding pollutants to the Toxic Pollutant List.  And EPA’s failure to update the list jeopardizes threatened and endangered species, including the 74-member population of Southern resident killer whales, among the most contaminated marine mammals in the world.  Although EPA has admitted that the list is outdated, it has taken no steps to add any of the thousands of new chemicals to its Clean Water Act regulatory program.

II. Jurisdiction, Authority, and Statutory Duties of the EPA

The Toxic Pollutant List was developed by EPA in 1976, as the result of litigation, and subsequently included in the Clean Water Act by Congress.  (EPA later created the Priority Pollutant List for ease of use.)  The Clean Water Act instructed EPA to add to the Toxic Pollutant List “from time to time.”  The list is key to both the technology-based and water quality-based approaches embodied in the Clean Water Act.  To carry out the first, for each listed pollutant, EPA is required to develop maximum pollution outputs—called national effluent limitation guidelines (“ELG”)—by industrial sector.  These ELGs are then incorporated into discharge permits for individual facilities.  EPA is also required to evaluate which toxic pollutants discharged by industrial sources to sewage collection systems are not removed by sewage treatment.  Similar to the ELGs, for those toxics that pass through sewage treatment plants to rivers, EPA is required to establish pretreatment standards by industrial sector.  Finally, EPA also develops recommended criteria—acceptable levels of pollutants for the protection of human health and aquatic life—that states must adopt into their water quality standards for pollutants that are on the Toxic Pollutant List.  The Petition also reviews Congressional frustration with the slow pace of controlling toxics in the nation’s rivers that led to its amending the Clean Water Act in 1987; the role of narrative criteria in water quality standards; and the requirements to protect wildlife and sediment. 
 

III. Toxic Contamination Plagues the Nation’s Waters

Water quality monitoring looks at the volume of toxics discharged to the nation’s waters as well as how much toxic contamination is present in water, animal tissue, and sediment.  The Petition discusses these data and highlights toxic contamination—and its effects—in three areas of the country: the northwest’s Columbia River, Puget Sound, and the southeast’s Piedmont Region.  Then it discusses four examples of toxic effects on fish and wildlife from: (1) chemical contaminant mixtures with additive adverse health effects, even as they are regulated one-by-one; (2) endocrine disruption and chemicals’ causing intersex conditions in fish; (3) sublethal effects to threatened and endangered salmon including reproductive failure, metabolic, and behavioral impacts; and (4) toxics on marine mammals, such as orcas—the most contaminated marine mammals in the world—and other aquatic-dependent wildlife.
 

IV. Clean Water Act Failures Cause Environmental Injustice and Harm Children

Bioaccumulative toxic pollutants that persist in the environment cause adverse health impacts to people through drinking water and consumption of contaminated fish, aquatic plants, and wildlife.  These toxics inequitably affect communities of color, low-income communities, tribes, and other indigenous people for multiple reasons including, for example, their higher-than-average consumption of fish and consumption of high-lipid parts of fish.  The Petition discusses   the continuing health warnings to members of the Penobscot Indian Nation about consuming contaminated fish and other species.  It discusses the decades of risk calculations for Columbia River tribes that have not led to reductions in toxic pollution.  It reviews fish and seaweed consumption rates in Native American tribes and Asian and Pacific Islanders in the Puget Sound region, as well as high levels of fish and marine mammal consumption by tribal members in rural Alaska.  For other communities, contaminated drinking water drives health risks, such as those in Appalachia near mountaintop removal mining who have significantly higher rates of cancer and birth defects.  Among many metals contaminating drinking water in the Appalachian Plateaus is the neurotoxicant manganese—found at levels “way off the scale”—a metal that affects memory, attention, motor skills, and intellectual development in children.  Finally, the Petition discusses how children are particularly at risk from toxic contamination due to periods in their development when they are “exquisitely sensitive to any adverse effects of chemicals,” according to the Agency for Toxic Substances and Disease Registry (“ATSDR”).
 

V. EPA’s Failure to Update the Toxic Pollutant List Undermines Regulation of Both Direct and Indirect Toxic Discharges

  The technology-based prong of the Clean Water Act is carried out through EPA’s development of national effluent limitation guidelines (“ELGs”) that regulatory agencies translate into discharge permit limits.  Established by industrial sector, EPA has failed to update ELGs for most major industries for two decades, with most ELGs’ being three, four, and five decades old.  The Petition uses the plastics industry to illustrate how EPA’s 35-year old guidelines have failed to keep up with the industry’s use of new toxic additives, including PFAS.  The toxic pollutant nonylphenol serves as another illustration of EPA’s outdated program because it is not included in any ELGs despite EPA’s concerns about the growing volume of nonylphenol production, its being one of the most commonly occurring contaminants across the country, and having been identified as one of the greatest concerns to the endangered Southern Resident killer whales.  While ELGs control direct discharges from industries to surface waters, more than one third of toxic pollutants come from indirect discharges by industries to public sewer collection systems.  Because it relies heavily on the outdated Toxic Pollutant List, EPA’s pretreatment program for indirect dischargers is failing to keep toxic pollutants out of the nation’s waters.  PFAS provides a particularly stark example because sewage treatment not only does not remove PFAS, but it often increases its levels.  The Petition highlights the efforts by Michigan and an Oregon sewage utility to use pretreatment to reduce PFAS discharges.
 

VI. NPDES Discharge Permitting Program is Failing to Control Toxics

This section of the Petition explains how the water quality-based prong of the Clean Water Act—which is based on state-by-state water quality standards—also fails to control toxic pollution in the nation’s waters, and why adding pollutants to the Toxic Pollutant List is an essential step to improve both approaches.  The many reasons why existing programs are not working include: (1) a dearth of monitoring information; (2) poor implementation of the Clean Water Act requirement to identify waters as “impaired” by toxics; (3) inadequate testing of discharged effluent; (4) the use of regulatory “mixing zones” that serve as a get-out-of-jail-free card for sources discharging toxics; (5) failure of permit writers to consider the build-up of toxics in sediments, fish, and wildlife; (6) reliance on short-term lab studies to purportedly protect species from toxic effects even though such Whole Effluent Toxicity (“WET”) tests do measure long-term effects such as bioaccumulation and carcinogenicity; and (7) the mistaken assumption that states are developing required, and largely ineffective, clean-up plans called Total Maximum Daily Loads (“TMDLs”) for toxics.
 

VII. The Outdated Toxic Pollutant List Results in Regulatory Failure

The heart of the Petition, this section identifies toxic pollutants from numerous EPA programs that should be placed on the Toxic Pollutant List.  These are: