ORSANCO is an interstate commission that represents eight states and the federal government with a goal of improving water quality in the Ohio River. Formed in 1948, the Commission implements a number of programs including water quality monitoring, setting wastewater discharge standards, and conducting surveys, studies, and biological assessments. In June of 2018, ORSANCO's commissioners voted 14-6 in support of gathering public comments and taking a final vote on a proposal that would remove pollution control standards for the Ohio River. Kentucky Resources Council director, Tom FitzGerald, is a federal ORSANCO Commissioner and opposed the proposal. His comments in opposition to the ill-considered proposal were delivered at a June meeting of the commissioners:
First of all, I would like to say that how much I appreciate the discussion that we have had as part of the Pollution Control Standards Committee on this issue. I appreciate all of the comments we have received both from the public and from the various advisory committees to the Commission. I would ask, and I did mention, that I would be opposing the motion, and I wanted to just very briefly reiterate my concerns. First, as one of the two Federal Commissioners, it has been an honor to represent one of the partners to a historic Compact among the States in the Ohio River Basin, which pre-dated by some sixteen years the adoption of the 1972 Water Pollution Control Act, and which I believe continues to have a vital role in setting standards for the control of discharges of pollutants into the Ohio River Basin.
I take my direction both from the Compact, which the Federal Government is a part of, and which has been endorsed by Congress, and I take it also from the goal of the Clean Water Act and its amendments, which was an aspirational goal of attempting to end water pollution by 1985. We have, and the States have, made great strides; however, as is reflected even using the weight of the evidence approach in the 305b report, we have a way to go yet in order to restore and maintain the health of this great River.
My concerns with going forward with alternative 2 for the second round of public comment are several. First, I believe that the proposal, which jettisons all of the numerical standards and a number of the other provisions in the current Pollution Control Standards, is inconsistent with the Compact and with our obligations as signatories to the Compact. Second, I believe that the evidence that has been developed regarding the relationship of the standards to individual state standards and of the necessity, or lack of necessity, for continuing the standards, is largely anecdotal. The only analysis that we have was prepared by staff, comparing the minimum water quality criteria of ORSANCO’s 122 minimum criteria, and as you will recall, it reflects that there is not redundancy, which is the underlying premise that animated the development and the advancing of alternative 2. There are instances in which there are standards that ORSANCO has adopted that the States have not adopted, and there are instances where ORSANCO’s standards are more rigorous than those that have been adopted by the individual states.
The PCS are not redundant. Understanding the very astute observation by one of my fellow Commissioners, that the presence or absence of the same standard does not necessarily correlate to better or worse protection of the aquatic resource and the functions and values of that resource, it was incumbent on us to take the next step and to measure the relative effectiveness of each state’s implementation of the PCS.
We did not, as a Committee, and we have not, as a Commission, done the legwork that is necessary to determine whether, in the absence of those comparable standards, a given state’s program is comparable in terms of the level of protection achieved. And until we get to that point of saying that despite the differences in the values of the standards or the number of the stringency of the standard, that the state is doing the equivalent of what would be required under the standards, we cannot, I think, in good conscience say that the standards no longer have currency and no longer give good value.
Another concern, (and I know that this has, at least on our conversations in committee, evoked some negative response), is that it is a fairly accurate to say that the current management at the Environmental Protection Agency, at the national level, has signaled that there will be delays and possibly repeals of the number of provisions that directly affect discharges into this great River. Given the uncertainty that is occurring with respect to the national rules, I don’t know that this is the time for us to signal a retreat from the historic function of the Commission of setting standards and encouraging the states to work cooperatively to assure that those standards are implemented.
I did note, and I appreciate the dry and important work of the Ad Hoc Committee on policies and procedures, that the alternative that I had offered as part of this process, which is to look at harmonizing the state implementation of standards to protect the various uses, in fact, was an existing policy dating back to 2002, which we just repealed a couple of minutes ago and are referring back to the Pollution Control Standards Committee. That is where I hope there is fertile ground for looking at and eliminating redundancy and looking at and harmonizing the way that standards are applied in permit processes in order to assure consistency, in order to prevent pollution, which of course is the premise behind the 1972 Clean Water Act, and to assure that we are continuing to make progress on restoring and maintaining the functions and values of this great River. So, with that, and because this has been such a divisive issue, not only in terms of the Commission, but in terms of the various committees, because it has justifiably called into question in some in the eyes of some, our commitment to maintaining and advancing the Compact, because there is no unanimity among the various states that are involved in the Compact, and because of great concern that moving forward at this point will disrupt efforts to improve water quality; for all of these reasons, I would ask that we vote against sending alternative 2 out for the second round of the triennial review, and that instead, we reconsider more nuanced efforts to maintain the currency of the Pollution Control Standards and to address those rare instances in which there is conflict among the states in implementation of the PCS.
Public Comments on the proposal ended on August 20, 2018, and KRC will continue to advocate on behalf of strong water quality standards for the Ohio River as ORSANCO moves forward with this process. The almost 5,800 comments in opposition to the proposal are available on the ORSANCO website.