Shirking Reponsibility

Citizens for Sensible Safeguards has just released a report, "Shirking Reponsibility," in reaction to a report recently released by the U.S. Advisory Commission on Intergovernmental Relations (ACIR) on unfunded mandates.

The following messages are appropriate chapters of the ACIR report. For more information contact Patrick Lester at OMB Watch at 202-234-8494. For a hard copy version of the report, please contact Nick Stengel at OMB Watch at or 202-234-5148.

CLEAN AIR ACT

ACIR RECOMMENDATION

The Commission recommends relaxing some of the Acts deadlines and providing more federal financial aid and technical assistance. It further recommends amending the Clean Air Act to provide only performance goals without providing any guarantee that these goals will be met. The Commission advocates eliminating the Acts specific requirements for emission reductions and the sanctions states currently face for failing to deliver clean air.

COALITION RESPONSE

The ACIR report acknowledges that in the past states have repeatedly failed to develop control measures to clean their air to healthy levels. States were first required to develop and implement plans to achieve national air quality standards in 1967. As a result of the states failure to do so, plan deadlines were extended in 1970, 1977 and then again in 1990. In 1990, 150 million Americans still lived in areas that violated the federal air quality standards.

Nevertheless, the Commission recommends eliminating improvements made to the Clean Air Act in 1990 which guarantee that harmful air emissions in polluted urban areas will be reduced. While states retain the authority to develop the specific plans for cleaning their air, the 1990 amendments to the Act require some specific emission reduction controls. Generally, states are required to demonstrate that harmful, smog-forming pollutants are reduced by specified amounts by certain deadlines. If these deadlines are missed, EPA is authorized to impose sanctions on the state. These sanctions are not punitive, but are simply designed to achieve the required emission reductions. For example, one sanction requires that before a new manufacturing facility can be built, the emissions it will generate must be offset by at least 2 to 1 emission reductions elsewhere.

The ACIR report implies that the Acts sanctions should be eliminated. While supporting the goal of clean air, the Commission would do away with the means to achieve it. Eliminating the sanctions would penalize those states which have complied with the law and put the pollution control measures in place. In order to make the difficult political choices necessary to reduce harmful air pollution, state and local governments must know that everyone will be playing by the same rules.

Furthermore, air pollution knows no political boundaries. A Midwest states failure to control harmful emissions from coal-burning power plants within its borders affects citizens in the Northeast and other parts of the country, as well as within the state. The federal government has the duty not only to set national standards, but also to ensure that they are met.

The ACIR report recommends greater flexibility and increased consultation with states in enforcing the Clean Air Act. The Environmental Protection Agency, however, has already done a great deal to provide such flexibility. In early 1994, the Agency backed off of its requirement that states with the most polluted cities install new methods of testing automobile exhaust systems, scientifically proven to be most effective. The Agency also made the Clean Air Acts program to encourage carpooling to work voluntary. In fact, EPA has had to spend so much time responding to pressure to relax the rules that few resources have been left for technical assistance. Flexibility must be coupled with some guarantee that the necessary emission reductions are occurring.

The changes made to the Clean Air Act in 1990 have produced dramatic results. Over 50% of the cities that did not meet the air quality standard for urban smog in 1990 (55 out of 98 areas) now meet that standard. Toxic emissions have been reduced by 1.6 billion lbs/yr since 1990  more than six times the reductions achieved from 1970 to 1990. This progress would be quickly reversed if the reports recommendations were followed.

Instead of turning back the clock, the ACIR should focus on the many problems that still remain. Almost all states failed to submit air quality plans for delivering clean air by the Acts 1994 deadlines. The Commission could make a contribution by promoting pollution prevention initiatives and assisting in efforts to streamline the permitting process. Duplicative and conflicting permit requirements should be eliminated, but the requirements must not be relaxed and must remain enforceable by the public as well as state and federal authorities. Such efforts could ease the burdens faced by both state and local governments, as well as the regulated community, while guaranteeing cleaner air to the public.

COALITION POSITION

The Clean Air Act has worked to save lives and make our cities more livable. The Commission should work to improve the implementation of the Act rather than trying to relax it.

For more information contact Sharon Buccino, Senior Project Attorney, Natural Resources Defense Council, at 202-783-7800.

CLEAN WATER ACT

ACIR RECOMMENDATION

The Commission recommends restoring funding or allowing state and local governments more authority to set schedules.

COALITION RESPONSE

The ACIR report suggests that the history of the Clean Water Act demonstrates that states and local governments ceded control over water pollution controls to the federal government in return for substantial federal aid. More important is the fact that after over 20 years of state programs, the nations waters were not improving. In short, the federal government took over precisely because the state governments were not adequately addressing the problem. While the 1972 amendments did provide substantial aid for municipal sewage treatment, the amendments did not provide much aid for individual residential sewage treatment or industrial discharges. Pollution control was intended to be largely under the polluter pays scheme.

Nothing since 1972 suggests that Congress was wrong in its assessment that states and localities will not, on their own, adequately address water pollution. While pollution from discrete municipal and industrial sources is controlled under a federal/state permit program, runoff pollution from diffuse sources was left up to the states in section 319. This section is widely acknowledged to be a failure, with state plans  themselves largely inadequate  left unimplemented. Municipal stormwater, which according to the most recent EPA and state data is the largest source of estuarine impairment and either the second or third largest source of lake, ocean and wetland impairment, was largely ignored by states and municipalities until the federal government initiated a permit program in 1990. Thus, it is crucial that strong enforceable federal mandates be maintained with respect to water pollution.

The Clean Water Act fails to meet ACIRs own criteria for identifying mandates requiring change. For example, the ACIR set out to identify as mandates those federal statutes providing little discretion. Yet, under the Clean Water Act, states can choose to assume control over the program. Forty states have done so for the permit program. Only 2 states have done so for the wetlands program. Polluters are not allowed to discharge over certain amounts, but how they reduce their pollution is up to them. In reality there is much flexibility. Local governments, to the extent they are polluters, are themselves covered by the Act, but in their role as government entities they can choose whether or not to assume control over certain programs, such as industrial pretreatment.

The ACIR was also looking for federal requirements that are the subject of widespread concern. All environmental programs, including the Clean Water Act, have been under attack in this Congress, but polls consistently show that the burden of environmental controls is NOT a matter of concern to most people. On the contrary, environmental protections are one of the few areas where most people want more protections. A poll done by the Wirthlin group in August 1995 found that 72% of the respondents felt that the environment was so important that it should be protected regardless of the cost.

The ACIR report criticizes the ability of citizens to sue to enforce various federal laws. This country would not have seen the dramatic improvement in the quality of its air, water and land over the past 20 years without the citizen suit provisions in the various environmental statutes. All too often, the federal government lacks the resources and the political will to sue state and local governments violating the law. Citizen groups do not have the means to bring frivolous lawsuits, but they must retain the opportunity to go to court to protect their communities when the government does not.

*Case Example: The Stormwater Discharge Program In 1987 after years of state and local governments shirking responsibility, Congress required municipalities and industrial facilities to obtain a permit for their stormwater discharges  the runoff from city streets, and other areas that contains oil and grease, excess nutrients that rob receiving waters of oxygen, toxic heavy metals, dirt and excrement. Municipalities have complained that: (1) the cost of the application is too high, (2) it is impossible to meet numerical water quality standards, and (3) that receiving waters are polluted by other sources besides municipal discharges. The ACIR accepted these criticisms without any analysis as to their validity.

These charges are flawed for several reasons. First, many estimates of the cost are inflated by including other municipal planning costs in the stormwater control costs. Since very effective stormwater control can be achieved through the preservation of wetlands, stream buffers, and local vegetated areas, basic city planning and design can be charged to stormwater control, even when done for many reasons. Yet even these inflated costs come to only approximately $3 per person, far less than municipal residents pay for many other services or than rural residents may pay for runoff control.

Second, the ACIRs recommendation is based on an inaccurate picture of current law. Contrary to the ACIR report, state and local governments today are generally not saddled with stormwater permit requirements that require compliance with standards that have detailed numerical limits that . . . it may not be feasible to attain. (A-19) In fact, there are very few such limits in stormwater permits; most permits allow the municipality to design its own stormwater management plan.

Third, while it is true that receiving waters are polluted by many sources, that is no reason to avoid controlling a significant  and in many cases the most significant  cause of water pollution. The better response is to improve control of those other sources, such as agricultural runoff.

ACIR is correct that the law need not be changed to allow state and local governments greater flexibility; it definitely should not be. We also do not disagree that additional federal funding would be appropriate. However, given the importance of pollution control and the poor track record of state and local governments, requirements must not be relaxed.

COALITION POSITION

The Commission should work to maintain or increase funding and allow flexibility in how, but not whether, to meet goals.

For more information contact Peter Lehner, Senior Attorney, Natural Resources Defense Council, at 212-727-2700.

THE SAFE DRINKING WATER ACT

ACIR RECOMMENDATION

The ACIR report recommends repealing some of the most onerous provisions of the Safe Drinking Water Act and establishing a long term goal of returning to the states full responsibility for safe drinking water standards.

COALITION RESPONSE

The report attacks the Safe Drinking Water Act by relying upon old bromides and unverified assertions, and upon statements like it is perceived or it is felt by state or local officials that there are unreasonable burdens on state and local governments of the Safe Drinking Water Act (SDWA). Generally, the ACIR report offers no concrete facts or citations to document its assertions or state and local governments perceptions and feelings.

The one supposedly supporting document ACIR notes is the Congressional Budget Offices (CBO) review of the drinking water act, which is cited as bolstering ACIRs assertion that the SDWA is an egregious example of an unnecessary and unfunded mandate. Inexplicably, however, ACIR fails to quote the central finding of the CBO study that appears in large print in bold on page one: To date, the SDWA has resulted in fairly modest costs for most households. Although the SDWA has been cited as a particularly burdensome mandate, available data do not indicate that it has imposed high costs on most households (CBO, The Safe Drinking Water Act: A Case Study of an Unfunded Federal Mandate, September, 1995).

The rest of the ACIR essay on drinking water is premised upon incorrect and undocumented anecdotal information. Each major concern cited by ACIR is undocumented and generally either demonstrably false or seriously overblown:

1. No Need for Federal Standards?In developing its theme criticizing the requirement in the SDWA that states adopt federal drinking water standards, ACIR states that prior to 1974, states generally required local water systems to adhere to the U.S. Public Health Service [USPHS] drinking water standards for regulation of water used by interstate carriers. (ACIR at A-28) Later it says that [p]rior to the imposition of federally mandated requirements, most states were already imposing Public Health Service Standards on local water systems. (ACIR at A-29)

These assertions are flatly incorrect. In fact, the main reason the SDWA was passed was that states were not adopting federal standards and widespread disease outbreaks and contamination problems were being found. A 1974 House of Representatives report, for example, noted that federal standards were needed because:

A review of state drinking water standards, performed in 1971, indicated that only 14 had officially adopted the USPHS Drinking Water Standards. Enforcement of these regulations is frequently poor. Sufficient surveillance of community water systems by public agencies at all levels of government has likewise been lacking (H. Rep. No. 1185, 93rd Cong. 2d Sess. at 6-7, 1974, emphasis added).

2. Rules are Issued Without Consideration of Costs? The ACIR states that under the SDWA, [b]ecause there is no federal participation in the costs, it is felt that the requirements are being imposed for a wide variety of risks regardless of cost (ACIR at A-29, emphasis added).

This assertion also is patently false. The SDWA expressly requires that all EPA drinking water standards shall be based upon the feasible technologies, explicitly considering costs (SDWA ' 1412(b)). In addition, the statute specifically authorizes variances and exemptions from these cost-based standards for systems with economic or other difficulties complying with these standards (SDWA '' 1415-1416).

We challenge ACIR to point to a single major drinking water rule issued regardless of cost  this would be a direct violation of the law, and has never happened. To the contrary, the public interest community long has complained that EPA is overly obsessed with the costs of its drinking water rules. EPA has been far too lax in its efforts to protect the public from certain drinking water contaminants due to concern about economic impacts (such as arsenic, which has a 54 year-old, very weak drinking water standard set by the USPHS before arsenic was known to cause cancer, a standard EPA has failed to update due primarily to concerns about the economic impact of a strict rule).

The ACIRs assertions that the Act imposes undue burdens without consideration of costs directly contradict other more scholarly efforts to assess whether the SDWA creates extreme costs. For example, as noted above, CBO found that although the SDWA has been cited as a particularly burdensome mandate, available data do not indicate that it has imposed high costs on most households (CBO, The Safe Drinking Water Act: A Case Study of an Unfunded Federal Mandate at 1, September, 1995). In addition, EPAs massive 1993 Report to Congress: Technical and Economic Capacity of States and Public Water Systems to Implement Drinking Water Regulations, demonstrated that for most households, the costs of drinking water protection have been very modest indeed (on average less than $20 per household per year). While some small water system customers had to pay more due to the lack of economies of scale, this hardly represents proof that the SDWA is a statute that fails to consider costs. To the contrary, many observers in the public health and environmental community believe that in implementing the SDWA, EPA has been overly cost-conscious.

3. Unnecessarily Testing of Tap Water?ACIR says  without supporting documentation  that problems arise because of what are perceived as requirements to test for contaminants ... in instances where the risks are relatively low and the costs are significant (ACIR at A-29).

The factual basis of the perceived unreasonable testing and treatment requirements is not specified or documented. However, it should be noted that with respect to drinking water testing, there is much flexibility available, including the availability of state waivers, grandfathering, and composite sampling to reduce monitoring burdens. For example, if a system is found to be unlikely to find the contaminant it can get a state waiver. Use waivers can be issued if the contaminant wasnt used in the area, and susceptibility waivers can be issued if the system is protected geologically or otherwise from contamination. ACIR fails even to mention that waivers are available, and to the extent they are not available in some states, that is the fault of the states for not developing or implementing a waiver program.

4. Unnecessary Treatment of Drinking Water? In addition, ACIR says  again without supporting documentation  that problems arise because of what are perceived as requirements to... treat surface water in instances where the risks are relatively low and the costs are significant. (ACIR at A-29). This accusation is untrue and insupportable. First, it is not mentioned that state officials and the drinking water industry strongly supported the surface water treatment requirements in the SDWA Amendments of 1986.

Second, ACIR does not mention that independent of the SDWAs 1986 amendments, many states already required all surface water systems to filter their water, and that over 90 percent of the surface water systems in the nation already filter their water. Thus, the supposedly unnecessary surface water treatment generally is necessary, according to a consensus of state and industry experts. Indeed, a coalition of state and water industry experts recently banded together to recommend that surface water systems go beyond current EPA rules to protect citizens against Cryptosporidium and other microbes because EPAs rules dont go far enough.

Third, ACIR does not mention that the SDWA and its rules specifically allow surface water systems with high quality, protected source water to avoid filtration if the state finds that it is not necessary (SDWA ' 1412(b)(7)(C)).

5. EPA Prohibits the Use of Cheaper Alternative Technology? In a similar vein, ACIR asserts without support that alternative, less expensive technology to address specific risks is not permitted in some instances. Sometimes, the treatment requirements do not relate directly to specific existing and measurable contamination (ACIR at A-29).

Precisely what this assertion could be referring to is unclear, but it appears to belie a lack of understanding of the SDWA. Virtually none of EPAs rules require a water system to use a specific technology to address a contaminant. Instead, under the Act EPA sets Maximum Contaminant Levels (MCL) which water systems can meet using any technology or water source protection measures they choose, so long as the drinking water meets the MCL. The one significant exception to this rule is the surface water treatment rule, which does state that certain surface water must be filtered, but does not require the use of any particular technology, so long as certain contact time and other water treatment technique parameters are achieved (such as a certain level of turbidity). Thus, it is not clear exactly what the complaint is targeted at, but it appears to miss its target.

6. Lack of State Discretion Regarding Enforcement? The ACIR states that concerns are expressed about being held equally accountable for violations that are genuinely health related and for failure to follow exactly prescribed schedules for testing procedures. States lack flexibility and discretion in implementing the law.

This accusation also completely misses the mark. A recent survey indicates that only about 3% of all drinking water violations are ever subject to any formal state or federal enforcement action ( NRDC, You Are What You Drink, 1995; NRDC, Think Before You Drink: 1992-1993 Update, 1994).

Penalties for even the most egregious health standard violations are extremely rare. EPA takes approximately 5 cases to court a year of the more than 100,000 recorded violations, and virtually all administrative actions are taken without collecting any penalties. According to GAO and EPA Inspector General studies, some states have essentially suspended enforcement of certain EPA rules they felt were low priority (NRDC, Think Before You Drink, 1993).

Thus, you are at much greater risk of paying a fine for parking illegally than a water system is of getting a fine for supplying dangerous tap water. Thus, it can hardly be argued with any credibility that states lack enforcement discretion under the SDWA.

COALITION POSITION

The report proposes a goal of returning to the states full responsibility for drinking water standards. The public is clear, however, in its belief that federal standards should not be weakened. According to a recent industry poll, just 3 percent of the American public would favor relaxing federal drinking water standards. We believe that past and present history make it clear that there is a continuing need for a federal leadership role in establishing strong drinking water standards, with the states and localities primarily responsible for implementing those standards, subject to meaningful federal oversight.

There is a need for a basic minimum national level of health protection for drinking water. People should be able to live and travel anywhere in the country without worrying about their drinking water quality. Citizens of poorer states should not be forced to substandard drinking water compared to neighboring, richer states. States should not have to compete for industry (or fear driving industry away). Allowing states to set any standards they choose could encourage economically-strapped states to look the other way, or set weak drinking water standards, when local industries contaminate their tap water sources. In addition, 50 states should not have to research and reinvent 50 sets of drinking water regulations and regulatory schemes. There is a need for a basic federal role in protecting all Americans from drinking water contamination.

For more information contact Erik Olsen, Senior Attorney, Natural Resources Defense Council, at 202-783-7800.

ENDANGERED SPECIES ACT (ESA)

ACIR RECOMMENDATIONS

The ACIR recommends that Congress and the Administration:

 Retain the provisions of the Endangered Species Act but improve federal funding allocations and the implementation process, particularly to state, local and tribal governments.

 Amend the ESA to make state, local and tribal governments full partners with the federal government in the preservation of endangered species.

 Modify the recovery planning and listing policies of the ESA to minimize the social and economic impacts on state, local and tribal governments.

COALITION RESPONSE

The ACIR report recommends measures that would drastically weaken the Endangered Species Act, despite solid public support for strengthening this crucial law. Although ACIR rightly calls for expanded roles for state, local and tribal governments in implementing the ESA, this role should be accompanied by strong federal standards and oversight.

At present, the ESA provides mechanisms for the transfer of authority from the federal government to state wildlife agencies through Section 6 cooperative agreements. Although ESA authority transfers through cooperative agreements tend to be limited to scientific research, recent efforts to increase state cooperation and participation in species management have been relatively successful. This effort has been predicated upon the belief that state resource managers often have the best scientific and political resources to manage local habitat, particularly when they possess adequate financial resources.

However, when considering which actions are appropriate for state agencies, it is important to remember that all states administering provisions of the ESA must be held to the same federal standards. Because not all states have solid wildlife programs there would be no assurance that one states successful efforts to protect a species would not be drastically undermined by deleterious actions in other less responsible states. In the case of wide ranging or migratory species, an irresponsible conservation program in one state could have negative repercussions for an adjoining states programs.

The Coalition disagrees with the ACIR recommendation that state, local and tribal governments . . . have a consent role before a species is listed. The listing process must remain in the hands of the federal government, without state veto powers, because such decisions are made solely on the basis of the best scientific and commercial data available. State recommendations should be considered during the listing process, but the criteria under Section 4(a)(1) of the ESA must remain as is. Requiring such widespread consensus before any listing decision would deny many imperiled species essential ESA protections. Likewise, requiring listing decisions to be based only on information that has been peer reviewed would prevent the vast majority of listings  most listings are scientifically uncontroversial yet are based in part on non-peer-reviewed data.

The ACIR report states that the goal should be to reduce the likelihood of economic disruption while ensuring species recovery. This wrongly assumes that species conservation and recovery have an adverse economic impact. The opposite is true  without biodiversity protection we ensure longterm adverse economic impacts, such as the loss of agricultural crops and cures for human diseases.

Under the ESA, state agencies are already heavily involved in the preparation and implementation of recovery plans. Because recovery plans recommend a range of actions to benefit a species, such as research, protection of critical habitat, captive breeding programs, and reintroduction efforts, qualified state agencies should also have the power to advise on future recovery activities. However, it is crucial that the federal government retain ultimate oversight over recovery plans.

Finally, while the Coalition agrees with ACIR that insufficient funding has contributed to ineffective implementation of the Act, increased funding should not be limited to state, local and tribal governments. Because program funding is often zero sum, it is likely that funding would merely be transferred to states at the expense of other programs, such as recovery planning and listing.

COALITION POSITION

Proper implementation of the ESA by state, local, and tribal governments must be accompanied by strong federal oversight. Public citizens must retain their abilities to challenge both the substance and enforcement of state implementation activities. In order to insure effective transfer and implementation of ESA authorities to state agencies, we must increase the amount of funding authorized and appropriated to the states and the federal government under the ESA.

These steps would not only go a long way toward allowing states to experiment with conservation approaches that work best, but also result in more direct and effective species protection efforts.

For more information contact Heather Weiner, Legislative Counsel, Defenders of Wildlife, 202-682-9400.



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