The Clean Water Act

Enforcing Environmental Law

SUNY Buffalo Law School

Conceptualizing Pollution

• Discharges– individual pipes and

stacks– individual firms– types of industry– watersheds

• Environmental Conditions– pollution

concentrations– ecosystem conditions– human health

Controlling Pollution

1. Property Rights -- Nuisance

2. Subsidies for Pollution Reduction

3. Taxes on Pollution Production

4. Administrative Regulation – Rules and Enforcement by Expert Agencies

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

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

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 Nixon’s veto

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 • R&D• Non-point sources

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

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’

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

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

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

Conventional Pollutants

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

• salts

• pathogens (coliform, fecal coliform, strep)

• oil and grease

• dissolved Oxygen• BOD• heat

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

Non-Conventional

don't fit the other two categories

ammonia chlorine color iron total phenols

“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

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

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

Non-Point Sources

• Everything that is Not a Point Source – (Some exempted by EPA

interpretive rule)

• Typically result from Land Use Activities

• Primarily a state responsibility

• Agriculture (return flows from irrigation)

• Forestry (runoff)• Urban development• Construction• Mining

• City streets• Land disposal facilities• Atmospheric deposition• Underground storage

tanks [?]

State Plans for Non-Point Sources• ID areas that can’t 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)

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

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

NPDES Standards - 2BAT (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

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”)

NPDES Process

• Development Documents: info about technologies, etc.

• Rulemaking: Set Effluent Limitation Guidelines

• Permit

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

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

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

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

Enforcement

• Any non-permitted discharge is actionable– no need to show harm or negligence

• Proof of violation may come from firm’s own required records

• States have primary enforcement responsibility• but EPA can also enforce state or federal stds.

Remedies - 1

• Compliance orders by agency

• Administrative Penalties– Class I: < $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

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”

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