Transcript The Clean Water Act: an Overview

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.
2.
3.
4.
Property Rights -- Nuisance
Subsidies for Pollution Reduction
Taxes on Pollution Production
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
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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
• EPA criteria and
dischargers need
permit guidelines
permits
(rules)
• Based on “Standards of • (Delegated) States
Performance” (specific
issue permits (adj.)
technologies not
– Effluent limits
mandated)
– Monitoring
– Extensive record
keeping and reporting
NPDES Standards -1
BPT (best practicable control
technology)
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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 - 2
BAT (best available
technology economically achievable)
– Existing Sources
– Toxic and nonconventional 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
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Bioaccumulative toxins, such as dioxin
Endocrine disruptors/hormone mimics
Pharmaceutical drugs in waste streams
Many remaining toxic hotspots
Enormous non-point source pollution