by Ken Midkiff
Ozark Chapter Program Director
From Georgia to Kansas to California, Sierra Club chapters have filed lawsuits against the U.S. Environmental Protection Agency just because the agency missed a deadline. Another example of our litigation-happy society?
Well, not quite. In this case the deadline was in 1981 - a mere 17 years ago - and the health of the nation's streams, rivers and lakes is at stake.
According to the Clean Water Act, an assessment of the quality of our nation's waters should have been submitted by the states for EPA review by 1981. The EPA was supposed to evaluate the report, determining which water bodies met standards for their designated use, and set up a schedule to rehabilitate those that did not.
One way to address water-quality problems, according to the act, was to establish the maximum contamination levels that allow a water body to meet its designated use, such as for swimming or fishing. This is called (there will be a quiz) the total maximum daily load, or TMDL.
By way of illustration we'll use the Elk River in southwestern Missouri. The Elk flows through several small communities, each discharging effluent from old, dilapidated municipal sewage-treatment plants. There are also some campgrounds, a few trailer courts and several private residences with various semi-functional sewage treatment systems (or not).
Also along the way there are a whole bunch of large poultry houses holding a total of 26 million chickens, and a couple of hog factories that house a few thousand hogs. The waste from these pigs and chickens is applied to fields that drain into the Elk.
And finally, a large Tyson's poultry slaughterhouse and packing plant also discharges waste into the river; it's by far the largest source of contaminants. However, it mostly manages to meet the effluent limits outlined in its permit for nitrates, suspended solids and phosphorous.
Could be that each of these dischargers meets the conditions of their Clean Water Act permits individually. But the cumulative impact of these sources has left the Elk River far from sanitary, even though the state considers it a "whole body contact" stream, meaning that it's suitable for swimming and occasional ingestion (blech!).
So what is the EPA or state agency to do? Exactly what should have been done 17 years ago: Consider all the pollution sources along the Elk, determine the TMDL and take steps through permit conditions, funding enticements and collaboration with other state and federal agencies to clean up the river. Require the small towns to upgrade their sewage-treatment plants. Establish and enforce meaningful land-application rates for animal wastes. Fine and penalize private residences that allow raw human waste to enter the river. In short, do what the Clean Water Act mandates.
But neither the federal nor the state agencies are doing that. So the Sierra Club and its allies began bringing suits against the U.S. EPA. Suits have been filed in Minnesota, Georgia, Kansas, California, Louisiana, Mississippi, Delaware and Maryland, and one is pending in Missouri. Those that have been settled have forced the EPA to take assertive steps to require state agencies to follow the law.
But there are still problems. Many states submitted incomplete lists, and one (Iowa) refused to do it at all. Priorities are missing and some schedules for TMDL studies are proposed to continue for 13 to 15 more years before anything happens. These problems will be the focus of continuing negotiations and discussions with the EPA and the Sierra Club. Future litigation cannot be ruled out.
In the meantime, if you're swimming in an alleged "whole-body contact" stream and you get a mouthful of water - spit it out!
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