The Clean Water Act is the landmark 1972 law that sets a goal of making all US waters “fishable and swimmable.” But sometimes it’s tough to tell exactly who’s in charge of making that happen. Generally speaking, the law provides that states get to be in charge of issuing the water discharge permits and managing water quality issues day to day, but the federal government is in charge of setting certain minimum standards and making sure that the states are doing their job. The U.S. Environmental Protection Agency, in other words, is supposed to be the adult in the room.
Here in Illinois, we have been in need for a long time of some adult supervision of the Metropolitan Water Reclamation District, the entity in charge of treating our sewage in the greater Chicago metro area. The District is responsible for the water infrastructure in a 900 square mile region often referred to loosely as Chicagoland, which largely centers around the waterways used to reverse the flow of the Chicago River a century ago to move sewer discharge away from Lake Michigan. The Illinois EPA, to its credit, has been striving for the greater part of this decade to try to force the District to take this rather basic step to protect public health, as well as other measures to protect the Chicago River aquatic environment. The District, however, has spent more the $13 million – almost $1 million of that on lawyers alone – to fight IEPA’s proposal.
For a long time, the US EPA was silent in all of this. Agency staffers would quietly observe public hearings regarding the IEPA’s disinfection proposal before the Illinois Pollution Control Board. But not a word was spoken or document submitted to the hearings…until now. That silence has been broken. In rapid succession, the US EPA has forcefully weighed in, with both IEPA and the Pollution Control Board, to make clear that the District is going to need to comply with the Clean Water Act like everyone else.
In April of this year, US EPA weighed in regarding Illinois’ EPA’s analysis behind its disinfection rule proposal. The federal Agency said that the proposal, which MWRD has so apocalyptically battled, may not even go far enough. US EPA reviewed the limited list of reasons that state agencies are allowed to cite for putting off meeting the Clean Water Act “fishable and swimmable” standard, and found that Illinois EPA needed to take a closer look at whether a couple of were really applicable. Although this letter was initially misconstrued as a judgment by US EPA that swimming is appropriate throughout the Chicago River system, it didn’t actually say that. It merely points out that the presence of combined sewer overflows (CSOs) – the mixture of raw sewage and rainwater discharged to the river on rainy days – isn’t a good reason for saying the River can’t be cleaned up enough to swim in, because there are things that can be done to get rid of the CSOs. And although barge traffic may make swimming dangerous in certain parts of the River on weekdays, that’s not a good reason to assume it will be a problem in all segments and on weekends. Especially since it is pretty clear that on some parts of the CAWS, people are already swimming, tubing, water skiing, and jet skiing regardless of whether Illinois EPA thinks that’s a good idea.
Then in June, EPA weighed in again on Illinois EPA’s oversight of the District, this time with a letter directing the State to ensure that the District’s permits – currently up for renewal – do not allow the District to violate human health standards in downstream waters, or to discharge too much phosphorus, a chemical that makes the waters cloudy with algae and snuffs out other forms of life (here and downstream in the Gulf of Mexico “dead zone”). US EPA had gathered data from the District regarding the mercury pollution and concluded that it may indeed have a “reasonable potential” to violate the health standard. It ordered Illinois EPA to fix the problem before renewing the District’s permits.
Finally, last week, US EPA filed with the Pollution Control Board a devastating critique of the District’s “risk assessment” study conducted by its paid consultant concluding that the District’s undisinfected sewage isn’t a threat to public health. The risk assessment was pretty suspicious from the get-go. If you look at the numbers and the fine print, it appears to conclude not just that the River is safe for boating in dry weather, but that it’s perfectly safe to head in right after a CSO discharge of raw sewage, notwithstanding all of the District's CSO warning signs along the River (you go first, Commissioners.) NRDC’s microbiology expert thoroughly ripped the Risk Assessment study in her testimony before the Board. US EPA’s letter echoes her concerns and more, systematically hammering the District for its sloppy science and its failure to answer US EPA’s earlier questions regarding the study.
Time will tell how Illinois EPA and the Board will respond in the end. But for now, we’re very happy that the grownups are back in charge.