The MacNeil/Lehrer Report; EPA's Muddy Waters?

ROBERT MacNEIL: Good evening. The Reagan administration today formally proposed new rules to make it easier for individual states to relax water pollution standards. Critics immediately charged that the Environmental Protection Agency was backing away from the clean water law. The changes follow unsuccessful efforts by the administration to get Congress to relax the federal laws which set national goals for cleaning up polluted waterways by 1985. Some see the new rules announced by the EPA today as a way of accomplishing the same thing without congressional action. The changes would give state governments more flexibility in determining what is an acceptable level of pollution for specific bodies of water. Environmentalists are worried that some states will use lower standards to attract industry. Tonight, is the Reagan administration backing away from the goal of cleaning up polluted waterways? Jim?

LEHRER: Robin, the Clean Water Act came into being 10 years ago, passed into law by Congress over a veto by then-President Nixon. The idea of the law, its purpose, was to turn back the clock on dirty water -- to clean up the country's rivers and streams, and, where possible, make them again safe for swimming and fishing. There have been complaints from the beginning that the law's regulations were too rigid, too impractical. Some states complained that they simply could not comply, a failure that can and has meant a loss of federal water pollution grants. Thus came the plea for more flexibility in the enforcement of the law, a plea the Reagan administration is now acting upon. Here to explain the reasoning is Frederic Eidsness, Jr., a system administrator of the Environmental Protection Agency for water. Mr. Eidsness, under your changes, what could a state do now that it cannot do under the present rules?

FREDERIC EIDSNESS: Well, let me answer that question by answering first the question why are we doing it. I think that's perhaps the fundamental question, and then, what are we doing. Why --

LEHRER: I'd rather do it another -- I'd rather do it my way, if you don't mind.

Mr. EIDSNESS: Fine.

LEHRER: But tell me exactly, from a standpoint -- you're changing the rules so the states can do different things. So what is it they will now be permitted to do that they couldn't do under the other rules?

Mr. EIDSNESS: The most significant difference concerning our proposals are that we would allow states to take a serious look at what is attainable in terms of meeting the national fishable-swimmable goal, because that word, "wherever attainable" is key to the goal. And in doing that we're advocating that states should look at it hard from a scientific and a local site-specific point as view as well as an economic point of view. Now, that's really not a change in the law; it's simply a matter of asserting that important feature of the national Clean Water Act and these particular regulations.

LEHRER: All right, now the question of why. Why are you doing that?

Mr. EIDSNESS: Fine. Congress, in 1981, amended the Clean Water Act and reasserted the important role that water quality standards, which are states' responsibilities, are, in the overall regulatory framework -- Congress said that states have to revise these standards by 1984; otherwise, they will run the risk of losing federal grants for the construction of sewage treatment facilities. And one of the concerns behind that was that Congress was concerned that if we're going to fund some of these facilities, there ought to be some return for that federal investment -- which is really a taxpayer investment. The second reason is that the scientific community, the professional engineering community, certain members of the regulated community -- particularly municipalities, as well as some state pollution-control officials -- have been asking us to review our national policies and our guidelines. And the final reason is that my job as a responsible official is to try to find the most cost-effective way to meet our national clean water goals. And these regulations haven't been reviewed in seven years since they were written in 1975, and we've learned a lot in seven years. So we're trying to go back and take into account the experience we and the states have gained, and bring those regulations and guidelines up to date.

LEHRER: Is the primary purpose to reduce costs?

Mr. EIDSNESS: Not at all. That may be an adjunct of these regulations, but I think that the more important purpose is for us to focus on specific bodies of water where we know we have pollution on a priority basis, and make a scientific determination of, can we attain a trout fishery in the swamps of Mississippi, and, if not, should we have a different kind of a standard in the swamps of Mississippi; and then, how do we write control requirements in terms of industry and municipal permits to be sure we're protecting that use?

LEHRER: As know, it's already been suggested that the changes that you want to make would allow a state to write off a particular body of water as, "Well, it's just too polluted to fool with; we'll write that off and not try to clean that up." Is that in fact possible under the recommended changes?

Mr. ELDSNESS: No, that's not at all possible. States will have to meet the requirements of the EPA regulations as well as the federal law. And it's our responsibility to review their proposed change in their standards, and I think in a sense the burden of proof on the states to do what you suggest -- to abandon the goals, to downgrade, to write off a particular stream -- is going to be even greater than it has in the past because --

LEHRER: Now, why is that?

Mr. EIDSNESS: Well, fundamentally because we're asserting that when a state establishes or modifies astandard we should not only look at the chemical quality -- which is traditionally all that we looked at -- we also look at the biological integrity and the physical characteristics, because the goals of the act talk about chemical, physical and biological integrity of the nation's waters.

LEHRER: I'm not sure I follow you there. Give me an example of what you mean, I mean, in terms of how a state would look at a body of water now -- I mean under the new rules -- compared with what it would be other, and how that would not in effect give them the flexibility to say, "Hey, well, forget it. This thing's going to cost too much. I mean, who needs bass fishing anyhow? Forget it."

Mr. EIDSNESS: Well, here is an example from my own personal experience in northern Colorado, a case where the state had adopted a very stringent standard, basically to protect trout, to propagate in the plains of the Colorado, on the Poudre River. And a requirement that resulted from that was that the municipality of Fort Collins had to treat for a very high degree of pollution control. And the question was raised in the course of a three-year study we did, if we reach this level of control is there going to be anything for it? And when we looked behind the question we found out that the trout that we thought we were protecting don't exist there naturally except during times of spring runoff. When the water stops running off and the snow is no longer melting, the creek dries up and, as a consequence, we have no fish. So the question is, should we spend additional incremental sums of money beyond the minimum requirements that we set in Washington when there is no benefit? And that's the kind of thing that states would be allowed to look at.

LEHRER: I understand. Thank you. Robin?

MacNEIL: Many environmental groups see the new rules as a step backward in the fight for cleaner water. One such group is the Environmental Defense Fund. Jim Tripp is a lawyer with the Fund specializing in water quality issues. Mr. Tripp, how does your group feel about the new rules?

JIM TRIPP: Well, I think the bottom line of the new rules is going to be that this so-called increased flexibility -- a magic term thrown around that sounds politically attractive -- is going to make it easier for a lot of states to downgrade the use classifications of some of their waters. It's going to make it easier for some states to say, "Well, a body of water is polluted, we're not going to try and clean it up," or perhaps, that "a body of water is not too polluted, but we don't want to put too much pressure on some industry that we're trying to attract to come into this region to comply with the best possible rules to control their effluent discharges."

MacNEIL: Don't EPA minimum standards still exist which the states must observe?

Mr. TRIPP: Well, there are so-called effluent limitations that apply. These are national standards that are supposed to apply to what industries discharge. But part of my fear, in any case, is that once we weaken the water quality standards part of the program, the next step is probably going to be to weaken the way that we apply the natural and effluent limitations.

MacNEIL: What harm can all this do in your view?

Mr. TRIPP: Well, I think the harm is that the more we move away from some kind of a national framework for an act that has a worthy objective -- which is to maintain and restore the biological, chemical and physical integrity of the nation's waters -- the more we get back into a system where states can set whatever standards they want. States may start competing for industry, which is easy to understand. Also, one upstream state may allow its waters to be polluted, which will downgrade the waters of another state, and that will be harmful.

MacNEIL: Why shouldn't -- apart from polluting waters that might be going to another state, why shouldn't states in this federal system be allowed to decide -- their voters and their legislators -- what standards they want, and if they want to let some of their water stay dirty, why shouldn't they be free to do that?

Mr. TRIPP: Well, most states have waters that if they become degraded will affect, one way or another, another state's waters.

MacNEIL: So it's the interstate aspect of this?

Mr. TRIPP: Interstate is a large part of it, but a lot of people move in interstate commerce. But there's another point that I'd like to make, and that is I think if this program that Mr. Eidsness is talking about is going to work, where you look at site-specific bodies of water and you do scientific studies to find out what is appropriate for that body of water, you're talking about tremendous increases in scientific research that should go on. And at the very time that this new program is calling for increased scientific research and data collection by the states, EPA is cutting back drastically on its own scientific research program.

MacNEIL: What is a site-specific body of water? What do the words mean?

Mr. TRIPP: Well, I suppose it means a given river, like the Hudson River or some segment of the Mississippi River or some segment of the Ohio River. And without doubt, I think it would be worthwhile to gather more information about the biological, chemical and physical characteristics of each body of water in this country and each state, and to do analyses and to find out what cleaning up that water could do for the biological well-being of that body of water. But we're talking about, if that's going to work, a tremendous amount of research and input of scientific talent, and I don't see where that's going to come from. I don't think it's going to come from the states, and certainly EPA is cutting way back on funding those kinds of programs.

MacNEIL: Let's take the concrete example Mr. Eidsness gave us a moment ago, that river in Colorado which would have forced -- to enable the trout to come in at certain times of the year, would have forced a local community to maintain a very high standard of refraining from putting effluent in the river. And he said that was just uneconomic in view of the use of the river and the result. Now, what's wrong with a community being able to make that kind of a decision for itself?

Mr. TRIPP: Well, the first question is, under this new program, is the community going to have the resources, the financial resources to conduct the kind of scientific study that Mr. Eidsness is talking about? As I say, EPA is cutting back on its scientific research; they're cutting back on grants to the states. So I don't know where that scientific research money is going to come from. He is then talking about conducting rather sophisticated benefit-cost analyses. Who is going to do that, and where is that money going to come from? The more you get to a site-specific kind of program, I think the more resources that you're going to need, and I don't see how communities, this individual community in Colorado is going to have the wherewithal, the money and the budgetary resources to conduct this kind of analysis.

MacNEIL: In a word, do you see this as a retreat from the goal of achieving swimmable-fishable waters by the middle of this decade?

Mr. TRIPP: I do. Now, understand that as a goal, and in a lot of places we haven't reached it yet. It is very difficult to reach, but I think it is important for the nation to have that goal in front of us and to continue to work towards it.

MacNEIL: Well, thank you. Jim?

LEHRER: The administration's new water policy is seen as an answer to a prayer by some states and their water pollution officials, one such official being Leo Weaver, executive director of the Ohio River Valley Water Sanitation Commission, which oversees water pollution control in eight midwestern states. Mr. Weaver is headquartered in Cincinnati, but is with us tonight from Chicago. Mr. Weaver, what kind of burden did the old regulations impose on you and your eight states?

LEO WEAVER: Well, the agency policies impose some very severe burdens. The basis of the approach, the policies that have been adopted over the years since the 1972 legislation was passed, overlook the basic concept that was contained in the legislation itself, and that is that the states are clearly vested with the responsibility for water quality standards, with the U.S. EPA given an oversight role where states do not proceed with the responsibilities as it's envisioned in the act. Now, this relationship was not being achieved. What we had was referred by some as a parent-child relationship and others as a master-serf relationship. In other words, there were criteria developed for the establishment of standards which, instead of being guidelines, were being imposed very rigidly, and would therefore cause some economic hardships which, for example, in the Ohio Valley, we just could not live with.

LEHRER: Can you give me a quick example of this particular thing?

Mr. WEAVER: Yes, the most outstanding example was the establishment of a level of dissolved oxygen of five parts per million for the Ohio River when we had established clearly that the goals of the act could be achieved with a minimum of four parts per million and an average of five. Yet, the agency at the time was attempting to force, through the guideline which had become in reality regulatory, these, what we felt were burdensome requirements. And we were very, very strongly advocating a turnaround in the policy. In looking at this we determined that the act in itself, in its goals, they were certainly in place and it was our intention to continue to place the types of pollution-control program in being that would work towards the goals.

LEHRER: Mr. Weaver, you heard what Mr. Tripp just said. His fear is that under these new rules that EPA has come up with that many states will take advantage of those rules and write off certain waterways as being too polluted to even fool with and others just to slow down the cleanup process. Is that going to happen in the Ohio River Valley?

Mr. WEAVER: No. It won't happen in the Ohio River Valley. The law clearly provides for basic technology levels of treatment. There's -- the water-quality standards do not affect that level of treatment. What we're talking about is segments or site-specific areas of rivers where one would have to spend considerable amount of additional resources to achieve a level of water quality which may or may not be desirable.

LEHRER: Let me ask you this. Your obvious delight in these changes, is your delight based on the fact it's going to save you money, or is your delight based on the fact that it's going to remove the parent-child relationship?

Mr. WEAVER: Both. We feel that we will be able to better work towards achieving the goals of the act, in the Ohio Valley particularly, and in other areas of the country with a partnership relationship, with due consideration given to social and economic benefits, and that this in itself will enhance working towards the goals of the act.

LEHRER: Thank you, Mr. Weaver. Robin?

MacNEIL: Not every state welcomes the changes. An example is California, which has been at the forefront of pollution cleanup, an effort which began when Ronald Reagan was Governor. Clint Whitney is executive director of the California Water Resources Control Board. He joins us tonight at public television station KQED, San Francisco. Mr. Whitney, what are California's problems with the new rules?

CLINT WHITNEY: Well, unlike my colleague from Ohio, we do consider this a retreat. However, we are not so concerned with the state's ability to provide flexibility or to make its own decisions. I think the issue is at a much higher level. It's at the political level. Frankly, we see this as a retreat in the federal commitment that was made in 1972 for a federal presence in our water pollution control program. We in California have effectively used EPA as somewhat of a gorilla in the closet, if you will, and we've exercised our choice as to standards in California, and we believe other states should exercise their choice as well. The present regulations allow us to do that. On the other hand, when we've had a tough time exercising a choice for a higher-quality standard, we've pointed to the gorilla in the closet.

MacNEIL: Does this mean --

Mr. WHITNEY: And we think that's an important element.

MacNEIL: Does this mean when you went to a certain industry or a municipality that was polluting, you had the gorilla in the closet to say we have to do this, we don't have a choice?

Mr. WHITNEY: That's right. We not only had the force of a very strong law in California for water-quality protection, but we also had the full backing of the federal government. We see this as a step towards weakening that commitment by the federal government.

MacNEIL: Does that mean, just so I understand you, that you fear that an industry will now be able to say to you, "Well, hey, you guys, you can decide your own quality standards here in California and you don't have the EPA telling you what to do"? Did you hear that? Mr. WHITNEY: I'm sorry. I've had a technical difficulty here and I didn't fully hear.

MacNEIL: I just said, did that mean that an industry can now argue back to you and dispute your water-quality standards in a way it couldn't do before?

Mr. WHITNEY: They could always have argued back. There's no question about that. And they have argued vigorously. However, with the full force of a strong national policy and a strong pollution law in California, this argument has been, in my opinion, a quite fair argument because industry is able to mount a great deal of effort and money to do the scientific research. I agree with Mr. Tripp in New York that we have a hard time coming up with the resources to put as much effort into making society's case that pollution should not go into our water than industry has in making the minimal case that there's an economic benefit that it should go into the water.

MacNEIL: What do you say to Mr. Weaver's argument that some relief was needed from this master-serf relationship where the EPA was insisting on a higher degree of water treatment -- he instanced the oxygen level in the river -- than was necessary to meet the goals?

Mr. WHITNEY: Well, here again I believe that we've had enough flexibility to do pretty much what the state has wanted to do. I don't see the relationship as a master-serf relationship. California has essentially asserted its will in this field consistent with the federal law, and we think that we would not have been able to do that without a strong federal presence. We've accomplished more in the last 10 years than the previous 20 years, and I think that's an important momentum that we have to sustain. And, unlike my colleagues who feel that the effluent-based standards, which Mr. Eidsness indicates is not under attack, I would disagree; that it is under attack. EPA is asking the Congress to reconsider the definition of secondary treatment in its proposed amendments to the Clean Water Act. We see in our toxics pollution control efforts questions being raised about effluent standards. So I'm not so sure that we can count on those effluent standards being there. So if you weaken one side and then weaken the other side, the house of cards begins to fall apart.

MacNEIL: Well, thank you. Jim?

LEHRER: Mr. Edisness, what about that? The strong federal presence is needed, according to Mr. Whitney, and what you are doing in effect is backing off that.

Mr. EIDSNESS: Well, I don't agree with that, and that's certainly not the intent; however, that may be his perception.

LEHRER: Tell him why he's wrong.

Mr. EIDSNESS: Well, let me tell him -- and I hate to have to disagree with a partner, a state partner -- but, first of all, concerning the question of technology-based standards, this administration has done an outstanding job in getting these technology-based standards for industries out and proposed in final form. As a matter of fact, the administrator today signed four new regulations for industry; three of them are proposed and one of them is final for the pulp and paper industry. And I think that's significant because in the seven years before this, EPA was only able to get one of these out. And we are committed to the technology-based standards. Concerning the secondary treatment, which is another technology-based standard for a municipality, I've got to correct Mr. Whitney's misapprehension. We did not ask Congress for a change in the secondary treatment definition. They directed us, in the 1981 amendments, to do that.

LEHRER: But he's talking about the fact of the, as he calls it, the gorilla in the closet -- that he was able to clean up the California water by saying, "Look, it's a federal commitment. This is a national commitment." And now he says he's not going to be able to say the gorilla is there anymore.

Mr. EIDSNESS: I think the gorilla will always be in the closet under this administration or any other administration because the Environmental Protection Agency under law has a responsibility to ensure that the state water quality standards meet the requirements of the law, and furthermore, when we review a state's standards, that one state's standards does not make it impossible for a downstream state to meet its standards.

LEHRER: Mr. Whitney?

Mr. WHITNEY: Well, I respectfully disagree with Mr. Eidsness.We've unleashed the gorilla a number of times so I don't believe it'll always be in the closet. I also feel that this move is a small move to put all of the heat on the states.It's well and good to say -- and it's quite a motherhood statement -- that you're going to give us local control, flexibility. Well, on the one hand, EPA tried to cut our regulatory funds by 20%. Thank goodness the Congress disagreed with that and did not follow through with that. Had we gotten these cuts in our regulatory funds along with this kind of a regulation, I'm afraid our hands would be effectively tied because we don't have the resource to put into proving the public's case. The public has to be represented here. Industry can muster a lot of money to make their case. I'll give you an analogy. In the chemical industries, over 3,000 chemicals are introduced into our society every year. In my opinion, only a cursory examination of the impacts of those chemicals are made. And now, 20 years later we're discovering these chemicals in our ground water, in our lakes, in our streams all over this nation. Virtually every place we look we find these chemicals. And we have to be very careful about making these decisions before they get into the environment.

LEHRER: Let me ask Mr. Weaver that question. Mr. Tripp had raised it earlier as did Mr. Whitney, the idea of whether or not local areas or states or regional areas, in your case, like the Ohio River Valley -- are you going to have the scientific resources to make these kinds of decisions?

Mr. WEAVER: Not entirely. We have and we will continue to rely a great deal on help from U.S. EPA. Mr. Whitney made a very cogent point when he stated that there was an attempt to reduce certain of the grant funds to the states by 20%. Congress did recognize the fallacy of this. Some of us testified to the need. They not only restored the 20%, but in this day and age with funds being so difficult to come by, they even provided some percentage more, recognizing that need.It seems to me that what we're talking about here is a matter of an issue that has been inherent all along, one way or the other, and that is a matter of developing a partnership with a mutual trust. There's no question in my mind about the act providing for U.S. EPA's backup, as it's referred to, as the gorilla in the closet, but the question is, will they? That's what I hear coming from Mr. Whitney.

LEHRER: Well, I will put that question to Mr. Tripp. Mr. Tripp, you don't think the gorilla's going to be there, right?

Mr. TRIPP: I don't think the gorilla's going to be there. It's not going to be there in terms of regulatory standards, but I think even more important, it's not going to be there in terms of scientific research support and in terms of budgetary supports to carry off this kind of program.

LEHRER: But you're saying, Mr. Eidsness, that the gorilla's present here and that you're going to stay right there, right?

Mr. EIDSNESS: We're going to stay there, and the resource issue is an important one, but let me make the simple point that --

LEHRER: We've got about two seconds.

Mr. EIDSNESS: -- this is an option for them. They can set stringent standards without them and they can defend them under the law and we will support that.

LEHRER: All right, Mr. Whitney in San Francisco, thank you very much; Mr. Weaver in Chicago, thank you; Mr. Tripp in New York, and Mr. Eidsness here, and Mr. Robert MacNeil in Washington, thank you. And you all have a good weekend, and we'll see you on Monday night. I'm Jim Lehrer; thank you and good night.