Nick Swartsell
The board's new plan would keep the commission's current pollution standards, more or less, but would allow states to deviate from them if they chose to do so.
Some members of the board have said that with federal and state guidelines, ORSANCO's standards are redundant. But a minority of commissioners and many environmental advocates say that isn't true, especially in an era where the Trump administration is rolling back pollution regulations. They say the commission shouldn't walk away from the power it has to set pollution controls.
Public commenters packed the board's meeting today in a Covington hotel conference room with a view of the swollen, fast-moving Ohio River.
Many attendees stressed how important they feel pollution controls — and ORSANCO — are for the river, which supplies drinking water for more than 5 million people along a 1,000-mile stretch through Ohio, Kentucky, Indiana, Illinois, Pennsylvania, West Virginia, Virginia and New York.
Pamela Mullins, a Covington resident, said that pollution controls like those ORSANCO oversees help protect vulnerable communities — low-income people, the elderly and minorities.
"I support the work that you do," she said. "I want to make sure that anything with environmental justice attached is secured and protected."
Formed in 1948, Cincinnati-based ORSANCO has worked to make the Ohio River clean and safe in part by setting standards for the maximum levels of various pollutants in the river. The commission's standards have long been used by states to limit discharge of chemicals and wastes to ensure that the Ohio River is clean enough for recreation, drinking and other uses.
ORSANCO has a 23-member board made up of representatives from the commission's eight member states plus three federal appointees. They oversee standards on water emissions from the roughly 600 permitted companies and other organizations that discharge into the Ohio River.
Most of those appointees have had long careers with state EPAs, regional water conservancies or other environmental groups. One of the federal government’s appointees is George Elmaraghy, who served at the Ohio EPA for nearly four decades. Elmaraghy was chief of its surface water division when he was asked to resign by Gov. John Kasich in 2013 after opposing mining permits sought by coal companies in the state.
Some members of the commission, including West Virginia’s David Flannery and Ronald Potesta, however, are also industry consultants or attorneys who have represented industrial clients in matters around environmental regulations. Potesta, whose consulting firm works with a gamut of clients from nonprofits to companies in the mining, manufacturing and chemical industries, chairs the commission.
The new proposal the board is mulling would preserve the standards currently in place, but would make them "available for states to use if desired." They would not be mandated to the states, however.
"States need the flexibility to implement individual water quality criteria that meet their programs' unique requirements mandated by the Clean Water Act and approved by the US EPA even if these individual criteria vary from ORSANCO's pollution control standards," the current proposal before the board reads.
Federally-appointed board member Elmaraghy is skeptical of that, however.
"If states would like to deviate from these standards for a good reason, they have to make that public and make it clear to the public why they are deviating and get comment from the public," he said after today's meeting. "The way it stands right now, creating this sort of foggy approach could mean that the public doesn't know that the state is deviating from the ORSANCO standards. Making the process foggy and unclear, that's something I can't support."
The debate over ORSANCO’s pollution control standards comes as the commission undertakes its usual triennial review of those guidelines. Last year, an ad-hoc committee of commissioners reviewed those rules, as well as solicited public feedback about them, and came up with five possible actions ORSANCO could take that ranged from removing the standards altogether to strengthening them in some ways.
The draft proposal for the rolled-back set of standards, at one time supported by a majority of the commission, shows whole chapters of pollution control regulations crossed out in red, with a few new passages added in.
Board members in favor of rolling back the organization's regulatory role say that many of ORSANCO's regulations duplicate state and federal regulations dictated by the federal EPA, founded in 1970, the 1972 federal Clean Water Act and state environmental agencies. ORSANCO Executive Director Richard Harrison also points out that the commission does a number of other things with a small staff of just 20 employees — public outreach, spill mitigation and response, river cleanups, monitoring of fish and insect health and population, and other efforts.
“The commission is considering this because, the thought is, with the robust state programs and the U.S. EPA’s program, there are better uses of our resources than really having a potentially redundant third layer of standards,” Harrison said earlier this year. “Our compact is not changing. I’m confident that our commission is not going to move forward with something that will harm the water quality of the Ohio River.”
Environmental groups, and a minority of the commission, however, strongly disagree. Some commissioners with ORSANCO have expressed “grave concern” with the move and argue that eliminating the body’s standards when it comes to ambient levels of various pollutants can only hinder efforts to maintain and improve the river’s health.
Dissenting commissioners point out that there are 188 instances in which ORSANCO has set pollution criteria that six of the member states and the federal EPA don’t have. Simply relying on the state and federal EPA standards “may not be adequate to protect the aquatic life and uses of the Ohio River,” they wrote in a report challenging elimination of the rules.
“ORSANCO, as a federally-sanctioned compact among several signatory states, possesses a degree of insulation from the vagaries of the political process, and is able to research, develop, propose and adopt standards tailored to the specific needs of the river in an atmosphere that stresses sound science and data-driven policy,” dissenting commissioners wrote.
Board members opposed to rolling back the standards have cited recent moves by Congress and the Trump administration that they say raise concerns about commitment to environmental protection. The elimination of the federal Stream Protection Rule and proposals by the EPA to revise guidelines for what counts as protected bodies of water, they say, are signs that federal regulations alone cant' be counted on to keep the Ohio River safe.
Since the potential changes were announced early last year, more than 5,000 people have submitted public comments asking the board to preserve ORSANCO's current standards.
Nathan Alley, of the Ohio Sierra Club and Cincinnati's Environmental Advisory Council, also says ORSANCO's standards are still vital. He points out that the commission doesn't predate federal efforts to prevent water pollution and doesn't necessarily just duplicate those efforts. The same year ORSANCO was founded, Congress passed the Water Pollution Control Act of 1948, which he says is the "precursor" to today's federal Clean Water Act.
"That act is currently being dismantled by the (Trump) administration," he told the commission today. "It is not the panacea for water quality control in the United States. There is still a tremendous need for organizations like ORSANCO to be active on the Ohio River. No one organization can do all the work necessary to protect the drinking water for millions of people. The idea that your standards and actions are somehow redundant with other federal and state structures is simply false."
Board chair Potesta today promised a lengthy second round of public comment before the board votes again on the new proposal, likely in June. Many commenters asked that ORSANCO hold multiple public hearings at multiple locations along the river in the meantime, noting that only one public comment session — last July in Covington — was held for the previous changes.
Potesta said that meetings around the new proposal would be announced 45 days before they would be held. The board could vote on the new proposal in June.
