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DEP Takes Another Regulatory Step Toward 'Discharge Elimination': The New Chapter 92a Regulations Ratchet Down NPDES Discharge Standards Again

In 1972, the Clean Water Act established national policies and goals to enhance and protect our nation’s waters. The primary national goal was, “that the discharge of pollutants into the navigable waters be eliminated by 1985.” An interim goal of what became known as, “fishable, swimmable,” waters, was to be achieved, “wherever attainable,” by July 1, 1983. A national policy was that, “the discharge of toxic pollutants in toxic amounts be eliminated.”Probably the most prominent creation of the Act was the National Pollutant Discharge Elimination System (NPDES) permitting program and the so-called, “delegation,” of that program to the states. Hence, for the last forty years the goal of the Clean Water Act has been to eliminate the discharge of pollutants. While the implementation of water quality-based discharge limits seems generally to have eliminated the discharge of toxic pollutants in toxic amounts as planned, the discharge of other pollutants continues some twenty-five years after the deadline for elimination. Several provisions in the Act call for a gradual, “ratcheting down,” of discharge standards. Of particular interest in this respect is the concept of, “technology-based discharge standards,” or TBELs. Applicable to industrial dischargers through Effluent Limitations Guidelines (ELGs) for the forty or so so-called, “categorical,” industries, and to publicly owned treatment works (POTWs) through the, “secondary treatment standards,” the innovative concept of TBELs served to standardize wastewater treatment, resulting in discharges that, in most cases, are significantly, “cleaner,” than necessary to meet established water quality standards, a substantial step toward the goal of discharge elimination. For some industrial categories, TBELs have already implemented that goal by setting, “no discharge,” as the allowable limit. For POTWs, however, the TBELs that were established in the 1970s have not changed and the discharge of, “conventional,” pollutants, nutrients, and some others continues, even though treatment technology and the skill of treatment plant operators have measurably improved. While EPA continues to evaluate potential new categories of industry for development of ELGs and revisits existing categories to determine if new technologies justify more stringent standards, no such program has been implemented to evaluate secondary treatment standards. From time to time, environmental groups propose additional or more stringent secondary treatment standards, but EPA has not acted on these proposals.