February 4, 2019 – by Keith Schneider for Energy News Network
An industry-backed effort aims to end ORSANCO’s role in setting and enforcing pollution standards.
In the course of his decorated career in environmental law, Tom FitzGerald tamed the scourge of Kentucky’s renegade strip miners, prodded state regulators to protect groundwater from reckless underground mining practices, and kept some of the state’s wild rivers safe from oil and gas drilling. In these and the dozens of other cases he either won or significantly influenced as director of the tiny nonprofit Kentucky Resources Council, the 64-year-old lawyer served the public interest principally as an outsider.
In 2014, though, President Barack Obama made FitzGerald an insider by appointing him to the governing board of the Ohio River Valley Water Sanitation Commission, more commonly known as ORSANCO. Today, FitzGerald is at the epicenter of a fierce industry-led struggle meant to end one of ORSANCO’s core missions — setting and enforcing safety limits on biological and toxic pollutants spilling into the river.
Since its establishment in 1948, the multi-state environmental agency has played an outsized role in improving water quality and ecology on America’s most important industrial river. Founded by an act of Congress and an interstate compact signed by the eight states of the 204,000-square-mile Ohio River Basin, ORSANCO has served as an innovator of policies and practices to reduce biological and toxic chemical discharges to the river. It developed and implemented so-called “pollution control standards” compelling cities and towns to stop dumping raw sewage into the Ohio River. It did the same for cleaning up chemical and toxic effluents from coal-fired power plants, refineries, and metals manufacturers along the river.
ORSANCO’s safety standards have been adopted by the six states that border the river, and incorporated by several states as requirements in discharge permits. It is widely credited for its big role in significantly improving water quality and ecological conditions along the river, which 5 million people depend upon for their drinking water.
The push to fundamentally change ORSANCO’s role is supported by some board members. But FitzGerald has fought back with a separate proposal that would maintain the pollution control standards and expand the agency’s work to help reduce biological and toxic chemical pollution. This month the full commission meets to weigh the competing measures.
In regulation as in investment, previous achievements are no indicator of future success. Executives of coal-fired utilities and major manufacturers that operate along the river, and water quality managers in West Virginia and several other states, have been chafing for years at ORSANCO’s role in setting safety standards. One ORSANCO standard, adopted by Ohio and Pennsylvania in 2003, was particularly galling to industry. It barred “mixing zones” for PCBs, mercury, and other toxic chemicals — the practice of allowing industries to dilute pollutants in the river’s current to comply with water quality limits.
On June 18, 2014, an environmental appeals board in Ohio provided an opening to challenge ORSANCO’s standard-setting. The board sided with six big coal-fired utilities and formally rejected an ORSANCO human health safety standard included in a state discharge permit for a large coal-fired power plant in Adams County. Dayton Power and Light, the plant’s owner, and the five other utilities argued that the ORSANCO standard, which set a limit on the temperature of cooling water discharged into the river, was unlawful. They successfully argued that Ohio had never formally adopted the standard as a regulation.
The Ohio ruling, the first time an ORSANCO standard had been rejected by a state, set off alarms in the agency. It also provided the opportunity for utilities and their supporters on the ORSANCO commission to ask probing questions about the usefulness of the agency’s standard-setting program.
In December 2014, Thomas Easterly, the head of Indiana’s Department of Environmental Management and the ORSANCO chairman, formed a subcommittee to review how the agency’s water quality standards are embraced and implemented by states. FitzGerald was named as one of the nine members.
During the course of its work, the subcommittee determined the relevance of ORSANCO standards. In 188 instances, ORSANCO established a standard for a pollutant that neither the EPA nor a state set. There are 252 other instances in which ORSANCO standards were at least 10 percent more stringent than those of the Ohio River states or the EPA. ORSANCO typically establishes standards, embraced by the states, that are more rigorous than the EPA limits. Some limit discharges of pollutants known to be dangerous — ammonia, cyanide, and mercury.