The Clean Water Act

1
The Clean Water Act

• Enforcing Environmental Law
• SUNY Buffalo Law School

2
Conceptualizing Pollution

• Discharges
• individual pipes and stacks
• individual firms
• types of industry
• watersheds

• Environmental Conditions
• pollution concentrations
• ecosystem conditions
• human health

3
Controlling Pollution

• Property Rights -- Nuisance
• Subsidies for Pollution Reduction
• Taxes on Pollution Production
• Administrative Regulation Rules and Enforcement
  by Expert Agencies

4
Pre CWA regulation

• Based on state-promulgated WQ stds
• Enforcement possible only when discharge reduced
  ambient WQ below allowable level
• Most water bodies involved multiple polluters, so
  problems of proof were severe
• Similar to nuisance law post-hoc multiple
  causation, various defenses

5
Early Regulation

• State Based
• Water Quality Standards
• Defined by Type of USE
• Human Consumption
• Recreation
• Agriculture
• Industry
• Enforcement often limited to imminent hazards
• Violations of WQ Standards often had multiple
  causes
• Therefore little actual enforcement

6
Early Federal Laws

• 1899 Rivers and Harbors Act (Refuse Act) no
  discharge into navigable waterway without permit
• Mid-20th Fed. Stats. promoting state development
  of WQ stds. but required showing
• polluter causation
• control capacity w/ reasonable cost
• 1960s several prosecutions under Refuse Act
• Nixon E.O. in 1970 to implement a permit program
• Congress passed CWA in 1972 over Nixons veto

7
CWA objectives

• Restore and maintain chemical, physical and
  biological integrity of the nation's waters
• fishable/swimmable by 7/1/83
• Total elimination of discharges by 1985

• Permits BPT by 1977 BAT by 1983
• Elimination of toxic discharges
• Federal assistance for POTWs
• Planning processes
• RD
• Non-point sources

8
Methods

• Regulatory Program
• Law
• Rules and Permits
• State/Federal cooperation
• Primary Enforcement by States
• Public Works Program
• Money
• 12B federal money on POTWs
• Research and Information

9
Water Quality Standards

• Established by states (with EPA approval)
• Water quality must conform to designated use
• Overall CWA goal fishable/swimmable
• Antidegradation Policy

• Typical Uses
• Public water supplies
• Propagation of fish and wildlife
• Recreational
• Agricultural
• Industrial
• Numerical Pollutant Concentrations
• Milligrams/liter H20
• EPA Goldbook

10
Discharge Permits

• No person can discharge any pollutant into waters
  of the U.S. without a permit
• Person individuals, organizations, government
  bodies

• Pollutant virtually anything
• Discharge any addition of any pollutant to any
  water from any point source
• But all of these things defined by various
  authorities

11
Requirements

• Applications signed by responsible corporate
  official
• penalties for false or misleading statements
• Effluent Limitations usually numerical
• Discharge Monitoring Reports
• Data on actual discharges usually defined by the
  permits
• Available to public
• Subject to Revocation and Modification for
  alterations in permitted activity and other
  reasons

12
Permits Based On?

• Water Quality or Health Effects
• means/ends rationality
• avoid over-protection and under-protection
• very difficult to work out

• Control Technology
• simpler to define and enforce
• may provide more or less protection than
  necessary to meet goals

13
Conventional Pollutants

• nutrients
• solids
• organic waste
• conductivity
• Acidity (ph)
• salts

• pathogens (coliform, fecal coliform, strep)
• oil and grease
• dissolved Oxygen
• BOD
• heat

14
Toxic Pollutants

• can cause death, disease, or birth defects
• harm human or aquatic life
• dose dependent
• may be transformed in environment to be more or
  less potent

• E.g.
• mercury, zinc, chromium, nickel, cadmium, copper,
  silver, lead
• hazardous wastes
• pesticides

15
Non-Conventional

• don't fit the other two categories

• ammonia
• chlorine
• color
• iron
• total phenols

16
Point Sources

• any discernible, confined and discrete
  conveyance, including but not limited to any
  pipe, ditch, channel, tunnel, conduit, well,
  discrete fissure, container, rolling stock,
  concentrated animal feeding operation or vessel
  or other floating craft from which pollutants are
  or may be discharged.

• pipes and spillways,
• culverts
• mining spoil piles
• redeposit material from land clearing
• deep injection wells
• cattle feedlots
• raw sewage discharges from privately owned septic
  systems
• stormwater discharges

17
General Types of Point Sources

• Direct Dischargers into water bodies
• Indirect Dischargers into pipes leading to
  treatment facilities
• Pretreatment standards for indirect dischargers
  discharging to POTWs
• Removal credits allow indirect dischargers to
  control less if POTW will achieve standard

18
POTWs

• Publicly Owned Treatment Works
• Municipal sewage residences, businesses,
  industry
• Primary Treatment physical removal
• Secondary Biological process microbial
  oxidation (like self purification of a stream)
• Tertiary Chemical treatment allows direct
  reuse very costly, therefore rare
• Combined Sewer Systems storm runoff plus sewage
  Overlows

19
Non-Point Sources

• Agriculture (return flows from irrigation)
• Forestry (runoff)
• Urban development
• Construction
• Mining
• City streets
• Land disposal facilities
• Atmospheric deposition
• Underground storage tanks ?

• Everything that is Not a Point Source
• (Some exempted by EPA interpretive rule)
• Typically result from Land Use Activities
• Primarily a state responsibility

20
State Plans for Non-Point Sources

• ID areas that cant meet WQ Stds w/o NonPoint
  control)
• Designate critical watershed zones
• Select appropriate BMP and incorporate in plan
• Implementation Plan with deadlines
• Monitor and Evaluate
• EPA approval

• States to set Total Maximum Daily Loads (TMDLs)
  for waters where effluent limits fail to result
  in attainment of WQ stds (include both point and
  non-point sources)

21
NPDES Permit Program

• All point source dischargers need permits
• Based on Standards of Performance (specific
  technologies not mandated)

• EPA criteria and permit guidelines (rules)
• (Delegated) States issue permits (adj.)
• Effluent limits
• Monitoring
• Extensive record keeping and reporting

22
NPDES Standards -1

• BPT (best practicable control technology)
• All point sources
• First stage interim criteria
• All types of pollutants
• Cost/benefit consideration

• BCT (best conventional pollutant control tech
  77 amends)
• Existing sources
• Conventional pollutants
• Average of best technology in use
• Cost also considered should be economically
  reasonable

23
NPDES Standards - 2

• BAT (best available technology econom-ically
  achievable)
• Existing Sources
• Toxic and non-conventional pollutants
• Best existing technology in use
• Based on optimally operating plants
• More stringent

• BDT (Best Demonstrated Control Technology)
  (sometimes NSPS)
• New Sources
• Greatest possible degree of effluent reduction w/
  best available demonstrated technology,
  processes, methods, and other alternatives
• To outperform existing sources
• Technology forcing
• Often the same as BAT

24
NPDES general

• Large EPA discretion
• Receiving water (creek versus ocean) generally
  not relevant
• Feasibility for individual company not relevant
• Role of cost unclear, although EPA may often in
  practice consider it (highest standard industry
  can tolerate)

25
NPDES Process

• Development Documents info about technologies,
  etc.
• Rulemaking Set Effluent Limitation Guidelines
• Permit

26
Variances

• Possible, but uncommon
• Companies have gone out of business b/c of
  inability to meet standards and denial of
  variances
• FDF only where operate in fundamentally
  different fashion than tested industry
• No less stringent
• No more serious environmental impacts

27
Other Variances

• Thermal discharge where aquatic life won't in
  fact be hurt
• Pretreatment indirect dischargers use innovative
  control systems
• Deep-water for discharges into deep or strong
  tidal waters

28
Wetland Program

• Section 404 no dredging or filling w/o permit
  dredged is taken out fill is put in
• Managed by Corps of Engineers (goes back to
  navigation focus)
• Sample exemptions
• Farm ponds irrigation and drainage ditches
• Temporary sediment basins
• Construction of farm roads, forest roads

29
Defenses

• Bypass supposedly intentional diversion of
  water such as for essential maintenance must be
  unavoidable to prevent loss of life, etc.
• Upset exceptional incident
• Facility working properly at time
• Beyond control e.g., flood third- party
  interference

30
Enforcement

• Any non-permitted discharge is actionable
• no need to show harm or negligence
• Proof of violation may come from firms own
  required records
• States have primary enforcement responsibility
• but EPA can also enforce state or federal stds.

31
Remedies - 1

• Compliance orders by agency
• Administrative Penalties
• Class I lt 10,000 per violation max. 27,500
• Informal hearing
• Class II up 10,000 per day for each day of
  violation max of 125,000
• Formal hearing under 554

32
Remedies - 2

• Civil -- 25,000 per day per violation
• Plaintiffs
• State or Federal Government
• Citizen Suits these have often been the most
  important drivers in the system
• Criminal
• negligent
• knowing -- very severe for imminent danger

33
Continuing Issues

• Enormous improvement, but
• 40 of waters too degraded for swimming or
  fishing
• Bioaccumulative toxins, such as dioxin
• Endocrine disruptors/hormone mimics
• Pharmaceutical drugs in waste streams
• Many remaining toxic hotspots
• Enormous non-point source pollution