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Legacy Pollutant TMDLs: Oxymoron?

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Legacy pollutants such as pesticides, PCBs, and other chemicals banned from use years ago represent a significant challenge to the States' TMDL programs. These challenges manifest themselves in: (1) overlapping regulatory programs, (2) lack of existing point source discharges and site data, (3) atmospheric contaminate cycling, and (4) water quality standards establish well below existing analytical capabilities. Many legacy pollutant sites are regulated under one or more existing federal programs, including RCRA and CERCLA, that consider water quality standards as part of the process as applicable or relevant and appropriate requirements. Consequently, legacy pollutant TMDLs often represent a form of regulatory double jeopardy. That is, successful execution of a CERCLA or RCRA cleanup doesn't preclude responsible parties from the TMDL provisions of the CWA. Moreover, execution of legacy pollutant TMDLs often invokes a double standard. Consider that the primary objective of the TMDL program is to restore our nation's waters to their designated use (drinking water, recreation, support for aquatic life, or fishing). For legacy pollutants this often translates into the reduction of fish body burdens to levels acceptable for human consumption and the removal of fish consumption advisories. However, once a legacy pollutant site makes it to a state's 303(d) list based on consumption advisories, the TMDL process often involves establishing a water concentration target. In many instances these concentrations, which are derived using bioaccumulation factors that relate human health risk derived fish body burdens with water column concentrations, are far below the analytical detection limit, exceed background pollutant concentrations, and are not supported by site specific data. One potential option is to apply to legacy pollutants the strategy developed for mercury. That is, allow an “off ramp” in the form of a category 4(b) listing. This designation would require that controls implemented through existing regulatory programs (CERCLA, RCRA) are stringent enough to return the designated uses in a reasonable time period as well as the identification of loading controls (e.g., best management practices, sediment remediation, natural recovery). Moreover, establishing recovery targets based on fish body burdens, rather than unmeasurable water quality standards would simplify monitoring requirements, and directly focus monitoring efforts on the impaired use.
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Document Type: Research Article

Publication date: 2005-01-01

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