My name is David Skolasinski. I am pleased to testify on behalf of the National Mining Association (NMA), and as the Chairman of the Environmental Committee of the Iron Mining Association of Minnesota (IMA). The NMA's members include the producers of most of America's coal, metals, industrial and agricultural minerals; manufacturers of mining and mineral processing machinery, equipment and supplies; transporters; financial and engineering firms; and other businesses related to coal and hardrock mining. The Iron Mining Association of Minnesota (IMA) is a trade association representing iron ore producers and the businesses that supply goods and services to the iron mines. Both NMA and IMA members have a substantial interest in these rulemakings because most either own or operate facilities requiring NPDES permits under the Clean Water Act.
I have a Bachelor of Sciences degree in Aquatic Biology and a Masters of Sciences degree in Fisheries and Wildlife Management, both from Michigan State University. In addition, I have 26 years of environmental management experience in the mining industry with mines producing base metals, precious metals, and iron. I spent 12 of these years working in five of the western States. During that time, I was responsible for permitting and environmental management. I have extensive experience with programs for addressing acid rock drainage at both old and new mines. Thereafter, I spent 14 years in the Midwest, gaining extensive experience with water quality permitting and management. I also have experience with the Great Lakes Initiative and the Bi-National Program.
INTRODUCTION:
I will begin by saying that the organizations I represent today support the development of a more comprehensive program that can effectively address multi-source water quality impairments through a watershed approach. Furthermore, I believe that EPA's continued focus on basin-wide planning, addressing both point and non-point sources, provides the best approach for achieving maximum water quality. However, TMDL development must work in tandem with other watershed provisions of the Clean Water Act (CWA). Such a program must be based on a sound understanding of (1) the limits of scientific knowledge, particularly with regard to complex watersheds; (2) practical ramifications, i.e. impacts on local economies and interim restrictions on point source discharges (3) legal requirements; and (4) effective public policy. Finally, and most important, EPA must give states the flexibility to implement their programs in a manner reflecting each state's unique and complex local circumstances.
The TMDL Program must be both focused and flexible. The broad listing requirements EPA proposes will dissipate the already scarce resources necessary to prepare technically and legally defensible TMDLs. We agree that EPA should require states to develop a methodology to determine when waters should be listed as impaired. However, as proposed, the rule fails to adequately ensure that the individual states methodologies will yield listing decisions that are clear, objective, and scientifically valid. Furthermore, States must have the flexibility to focus their 303(d) listing and TMDL development efforts on those waters that are "pollutant -impaired." Other waters should be dealt with through alternative lists and programs specifically intended for tracking their progress toward attaining standards. Section 305(b) is the proper place for tracking such waters that may not currently be attaining water quality standards but for which TMDLs are not the appropriate solution. In this way, the 303(d) list would be reserved for those waters as to which implementation of TMDLs is an effective means to bring about attainment of standards.
The CWA and its implementing regulations consistently stress Congress' intent to provide the States with broad discretion to develop policies and procedures to implement water quality standards. The Proposed Regulations therefore should incorporate options that will provide States with the flexibility to address site-specific issues. For example, EPA's failure to include phased TMDLs in the proposal could significantly limit the flexibility provided to the States. In addition the proposal contains new, severe restrictions on new and increased discharges from point sources. We have serious concerns about these inflexible provisions, the arbitrary offset requirements, the timing of the offsets, and the liability of some sources for reductions by other sources. The ultimate impact of these inflexible provisions is that the dischargers will be discouraged -- rather than encouraged -- from implementing voluntary early reductions.
The TMDL program, as crafted by EPA, will be very expensive for the States and regulated parties to implement and the resulting environmental benefits of such a program remain questionable. For example, the proposal fails to recognize the difficulties and uncertainties regarding historic or legacy pollutants -- where non-attainment is due in part, or entirely, to historic problems such as contaminated sediments, acid rock drainage, air deposition including deposition from naturally occurring sources such as forest fires, volcanoes, natural wind-blown silt from glaciers, and naturally occurring background levels of metals in certain geographic locations. Pursuant to the proposal, it is likely dischargers will be required to purchase and install control equipment before it can be determined that the load reductions requiring the control equipment are necessary and in some instances where such drastic reductions from point sources will not significantly contribute to attainment of the water quality standard. For example, the practical result of EPA's proposal is that States will be forced to develop TMDLs based upon limited or inadequate scientific data, resulting in stringent NPDES permit limits that ultimately may be relaxed once additional data are developed. Thus, EPA's proposed rules may force significant capital expenditures to achieve load reductions from existing discharges that ultimately may prove totally unnecessary. We believe it is irresponsible for regulators to require current discharge to comply with the excessive burden of permit reductions unless such reductions would be expected to significantly improve water quality for the pollutant of concern within the next five year NPDES permit cycle.
303(d) LISTING AND TMDL DEVELOPMENT ARE IMPROPERLY SUITED FOR WATER BODIES IMPAIRED PREDOMINANTLY BY HISTORIC OR LEGACY POLLUTANTS AND CERTAIN OTHER NON-POINT SOURCES:
In the proposed rules, EPA requires States to list waters that are impaired due to air deposition, acid rock drainage and other sources, even if those sources are not regulated as point sources under the Act. We agree with a number of Members of this Subcommittee that not only is this requirement not supported by the statute, but it is illogical and without scientific basis. It is currently scientifically impossible to model nonpoint source impairments with any degree of certainty. Furthermore, according to a February 10, 2000 statement of Mr. Peter Guerrero on behalf of the General Accounting Office (GAO), the States themselves report a need for additional analytical methods and technical assistance to develop TMDLs for the more complex, nonpoint sources of pollution. Therefore, requiring states to expend resources developing defensible TMDLs for such impairments is futile.
Further, many sources of pollutants originating from air deposition will likely be located outside the state and even outside the country. Individual states have no authority to control these sources. Consequently, no amount of effort by the state through the TMDL program will result in improvement of the impaired waterbodies. Unfortunately, under the proposed TMDL program, point sources discharging to the impaired waters will be subjected to discharge restrictions imposing considerable costs and impairing future growth opportunities. New point sources would likely be prohibited from discharging to impaired waters which would further restrict growth in the state. I suggest that all of this would occur with little if any improvement of water quality.
I am very familiar with an example that illustrates this point existing in Northeastern Minnesota. Virtually all of the lakes and streams in the Lake Superior watershed are listed as impaired for mercury. Aside from the fact that the state's impairment determination is scientifically unfounded, as much as 90 percent of the mercury entering the state comes through air deposition and (other nonpoint sources of mercury) from sources outside the state. Under the current proposal, point source dischargers, both municipal and industrial, would be severely impacted and growth throughout the entire region would virtually come to a halt. Yet, mercury from air deposition (and other nonpoint sources) would continue to contribute the same amount of mercury to the state's impaired waters, thereby precluding achievement of water quality standards.
This same scenario exists with regard to elements aside from mercury that exist ubiquitously throughout the earth's crust. Background levels in soils typically exceed acceptable criteria in certain ore bearing regions. There are numerous geologic studies and historical records demonstrating that surface ore deposits and metals-enriched soils contribute to natural background conditions. Therefore, despite drastic reductions or zero discharge requirements imposed on point source dischargers coupled with restrictions on all new or increased dischargers, water quality standards simply cannot be achieved in these situations. We suggest that it is illogical to impose such reductions on point source dischargers in the face of evidence clearly showing that eliminating all point source discharges from a waterbody will not result in achievement of water quality standards. Yet, this is the practical effect of EPA's proposal. Aside from the unwarranted restrictions on point source dischargers, EPA is setting states up to fail by requiring them to develop TMDLs in situations where the TMDL is not the appropriate mechanism for addressing such unique problems.
EPA's process for downgrading water quality standards to reflect natural background pollutants is not the solution. EPA's proposed rule virtually ignores the downgrading process, which should be considered as a mandatory requirement before any waterbody is listed. States developed their water quality standards very generally without respect for the TMDL process about to unfold and they need time to adjust those standards with far greater specificity. Moreover, EPA's downgrading process, aside from its inherent deficiencies, is unclear as to its applicability to pollutants that, while man-induced, originate from airborne sources or historical practices.
For these reasons, the practice of adopting a TMDL prior to the development and implementation of a plan for addressing non-point source pollution may actually cause degradation of the water quality in parts of the waterbed. This could occur if current discharges are substantially reduced or completely eliminated. For example, consider a point source currently discharging metals in concentrations higher than its assigned loading but below the concentrations in the receiving waters. If the only means of achieving its assigned load allocation is to stop the discharge altogether, the receiving water's metals concentration below the discharge will actually increase. In other words, elimination of a "cleaner" discharge will result in "dirtier" flow once the "cleaner" discharge is removed from the total flow. Accordingly, it makes no sense to ratchet down on point source discharges prior to addressing the overall non-point source metals contributions.
An even more perverse result would occur where the TMDL has assigned loadings to point sources that require discharges at concentrations lower than the water quality standards. Again, if the only way to achieve the load allocation is through elimination of the source of the discharge altogether the TMDL would in effect be taking away from the waterbed a certain amount of assimilative capacity that the point source is contributing.
OFFSETS:
Under the current proposal, new and significantly expanding dischargers to impaired waters would face excessively onerous burdens as a prerequisite to obtaining an approved NPDES permit. EPA suggests that the proposed mandatory offset provisions are designed to provide opportunities for such discharges to impaired waters. Without elaborating on all of the reasons we believe the offset proposal is unworkable, I will point out the most obvious. EPA fails to consider situations like the Northeastern Minnesota mercury example I referred to earlier where virtually all waters in the region have been deemed impaired. In this situation, if all dischargers are subjected to a "no detectable" discharge requirement, offset credits simply will not be available throughout the entire region. Further, even if a point source had credits available, it would not likely offer them for sale but rather would hold onto them because of the uncertainty as to what load reduction it will face in the forthcoming TMDL, or for its own future growth. In certain regions of the country, particularly in regions plagued by historic or legacy water quality problems, all future growth and development activities involving a pollutant causing impairment will be brought to a halt. We suggest that EPA has not done a thorough analysis of the practical implications of this drastic mandatory provision and therefore, the provision should be removed from the rule.
Alternatives to Offsets:
We suggest alternatives to the mandatory offset requirements whereby States would have the flexibility to develop their own local solutions to bringing waters into compliance should be encouraged. Here, the operative principle must be progress towards standards over time and across the watershed. EPA's requirement that an offsetting reduction must occur at the same time as the new or increased discharge is unnecessary and, in fact, will be counterproductive. This requirement, by giving no credit for long-term reductions, will discourage sources from participating in voluntary reduction activities in their watersheds that may yield real water quality benefits.
Although the proposed rule mentions that TMDLs may be developed on a watershed basis, the case- by-case offset provisions outlined in the rule appear to prohibit a watershed approach. A watershed approach, which centers on a voluntary efforts should be the preferred approach for obtaining the desired reductions.
An example of such a voluntary approach to obtaining offset reductions for a specific pollutant has been successful in Minnesota. Minnesota currently has two watershed based initiatives, the Mercury Reduction Initiative and the Watershed Unification Initiative. When fully implemented, these will provide significant reasonable further progress from point and nonpoint sources. According to the Minnesota Pollution Control Agency (MPCA), baseline data for mercury indicates nearly a 50% reduction in mercury releases from 1990 to 1995 as a result these programs. An additional 60% is expected by the end of 2000 and 70% by 2005. It is anticipated that the reductions through 2005 will be obtained primarily through voluntary efforts by municipal and industrial sources. It is important to note that this voluntary effort is consistent with EPA's Great Lakes Bi-National Program and the Bi-National Toxics Strategy, nevertheless, we believe its future is threatened by EPA's proposed offset requirements.
A similar effort is also underway at the local level in Northeastern Minnesota. Stakeholders -- including non-governmental organizations, business and industry, municipal and local governments, research and education institutions, and the general public within the St. Louis River Watershed are developing a watershed group. Although this initiative is in its early stages, it is expected to result in reasonable further progress as stakeholders, through cooperative efforts, will make pollutant reductions. However, many fear that the proposed offset provision in EPA's proposed rule will be a disincentive and likely prohibit this effort from moving forward unless this alternative approach is allowed.
The TMDL program proposal also threatens to be a disincentive to a proposed municipal wastewater consolidation project. The project anticipates piping minimally treated municipal wastewater from a number of small communities to a regional treatment facility where improved treatment is provided. The consolidation would result in an increased discharge at the regional facility in excess of the 20% significant expansion threshold, triggering the requirement for mercury offsets. Unfortunately, offsets will likely never be available due to historic mercury impairments and therefore, this environmentally beneficial local watershed project will never be realized.
CONCLUSION:
In conclusion, States in conjunction with stakeholder groups should be provided the flexibility to develop water quality improvement programs that will yield reasonable further progress in a practical manner emphasizing long-term load reduction potential rather than rigid restrictions that apply unless immediate offsets can be achieved. The foundation for such programs should be technically sound water quality standards and high quality data and tools for addressing achievement of those standards. Those state programs should focus on action that will yield significantly enhanced water quality, rather than imposing arbitrary load reductions on the sources not responsible for contributing to the impairment.
Mr. Chairman, I commend you and the Subcommittee for providing this forum for discussing EPA's proposed revisions to the regulatory requirements under the Clean Water Act. We urge Congress to encourage EPA to reconsider the June, 2000 deadline for finalizing this rule proposal. These oversight hearings and the more than 30, 000 public comments indicate that EPA has failed to adequately consider all of the impacts of this proposal. It would be a mistake to move forward at such a rapid pace in the face of all these uncertainties.