How do you turn a hazardous chemical into a nonhazardous chemical? Pour it down the sewer.
That little riddle comes courtesy of a peculiar legal loophole that was thrust into the spotlight recently by a report from the Environmental Protection Agency’s Office of Inspector General. The report said the EPA is allowing thousands of potentially dangerous substances to flow into our sewage systems and out into our lakes and rivers.
But it’s not entirely EPA’s fault. Back in 1960s and ’70s, Congress constructed several independent laws to govern the disposal of hazardous industrial chemicals. One law applies on land, another in inland waterways, still another in the oceans, and one more in the air. Each defines “hazardous chemical” differently.
The strongest of the rules is the one that applies to chemical disposal on land. Known as RCRA, the law is broad, targeting hundreds of chemicals by name. Even if a new or obscure chemical does not appear on RCRA’s list, if the substance is extremely corrosive, flammable, reactive, or toxic, the EPA must regulate it.
In the water, however, where the Clean Water Act rules, those same chemicals may ooze through the regulatory process. Back in the 1970s, the EPA wasn’t particularly interested in regulating toxic chemicals in inland waterways. Environmental groups eventually sued the agency, forcing it to generate a list of “priority pollutants” that would be monitored under the act. (NRDC, which publishes OnEarth, was a plaintiff in that lawsuit.) That was a good start, but there are only 129 chemicals on the list. As a result, around 300 chemicals that are heavily regulated on land virtually disappear from the government’s view when they hit the water.
To be fair, regulating toxic waste on land is reasonably easy. You tell the companies that make and distribute the chemicals where they can throw them away. Dump a hazardous chemical anywhere else, the government says, and we punish you.
Water is a more slippery situation. Once a chemical goes down the drain, the only place it can be detected is at a sewage treatment plant. Where did it come from? Who disposed of it and when? The pollution’s path is a little murkier.
“The Clean Water Act was designed to keep trash, oil, and sediments out of our rivers,” says Robin Kundis Craig, a professor of environmental law at the University of Utah. “In the '70s, we couldn’t detect many industrial chemicals at low levels.”
Forty years ago, that was a good excuse. Especially since the Clean Water Act, unlike the more stringent RCRA, only requires companies and sewage treatment plants to eliminate chemicals from water when it is “technologically and economically achievable.” Technology has marched forward, though, and our regulators aren’t keeping up. The EPA’s list of 129 priority pollutants under the Clean Water Act has remained virtually unchanged in three decades.
Craig also points out that the Clean Water Act’s technological feasibility provision creates a perverse incentive not to invest in detection and treatment research. As long as the technology doesn’t exist to detect a chemical, no polluter or treatment plant has to concern itself about what it may be releasing it into rivers and streams. But the people who live nearby or rely on inland waterways, or care about wildlife, may still have reason to worry.
The following is a small sample of the 300 chemicals regulated by RCRA but ignored by the Clean Water Act:
- The industrial chemical acrylamide, a probable human carcinogen known to cause nerve damage when consumed chronically.
- The powerful pesticides parathion and oxamyl, which can impact the circulatory, respiratory, and nervous systems
- The gasoline additive tetraethyllead, which was eventually banned in most countries because it accumulates in the human body and is a neurotoxin.
So are any of those chemicals present in waterways in sufficient enough quantities to endanger human health or local ecosystems? Well, there’s little evidence confirming whether that’s true. But that’s exactly the problem: We don’t look for those substances, so we don’t really know.
Help could be on the way, though. The Inspector General’s callout got the EPA’s attention, and the agency has promised to expand its list of priority pollutants within one year. Let’s hope we don’t have to wait until 2045 to get another update. Eliminating toxic chemicals from our lakes, rivers, and streams should no longer be a matter of “see no evil, hear no evil.”
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