THE CLEAN WATER ACT CUYAHOGA RIVER, OHIO —1969

CLEAN AIR ACT v CLEAN WATER ACT SIMILARITIES BIG FEDERAL STATUTES; ADOPTED EARLY 70’S; RESPONSE TO INEFFECTIVE STATE LAWS STATES HAVE KEY ROLE IN IMPLEMENTATION DIVERSITY OF POLLUTANTS DISTINCTIONS AFFECTING STRINGENCY: EXISTING v NEW SOURCES “CONVENTIONAL” POLLUTANTS v TOXICS DIFFERENCES CWA IS LARGELY TECHNOLOGY-BASED; CAA IS LARGELY HEALTH-BASED (BUT DIFFERENCES HAVE DIMINISHED) KEY DISTINCTION IN CWA BETWEEN POINT SOURCES AND NONPOINT SOURCES

ALL POINT SOURCE DISCHARGES UNLAWFUL EXCEPT BY PERMIT. § 301 POINT SOURCES OVERVIEW: 1972 AMENDMENTS TO FEDERAL WATER POLLUTION CONTROL ACT ALL POINT SOURCE DISCHARGES UNLAWFUL EXCEPT BY PERMIT. § 301 NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (“NPDES”) PERMITS. § 402 EPA ADMINISTERS OR DELEGATES TO STATES PERMITS MUST INCORPORATE “EFFLUENT LIMITS”

POINT SOURCES OVERVIEW: 1972 AMENDMENTS, CONT’D EFFLUENT LIMITS FOR EXISTING SOURCES EFFLUENT LIMITS MUST REQUIRE: BEST PRACTICABLE TECHNOLOGY CURRENTLY AVAILABLE (“BPT”) “AVERAGE OF THE BEST” REQUIRES COST-BENEFIT ANALYSIS FOR NEW SOURCES MUST REQUIRE: BEST DEMONSTRATED AVAILABLE TECHNOLOGY (“BDAT”) MOST STRINGENT; JUST CONSIDER COSTS TO DETERMINE IF REASONABLE FOR NEW SOURCES

TOXICS CONVENTIONAL NONCONVENTIONAL POINT SOURCES OVERVIEW: 1977 AMENDMENTS CREATED POLLUTANT CLASSIFICATIONS TOXICS CAUSE DEATH, DISEASE, CANCER, GENETIC MUTATIONS E.G. MERCURY & PCBS INITIAL 126 “PRIORITY POLLUTANTS” LISTED BY CONGRESS CONVENTIONAL OXYGEN DEPLETING SUBSTANCES, SEDIMENT, NUTRIENTS, & PH; POLLUTANTS TYPICAL OF MUNICIPAL SEWAGE (BOD, FECAL COLI FORM BACTERIA, OIL & GREASE) NONCONVENTIONAL POLLUTANTS NOT LISTED AS CONVENTIONAL OR TOXIC INTERMEDIATE ENVIRONMENTAL CONCERN E.G. TOTAL ORGANIC CARBON, CHEMICAL OXYGEN DEMAND (COD), PHOSPHOROUS

CONVENTIONAL POLLUTANTS: POINT SOURCES OVERVIEW: 1977 AMENDMENTS, CONT’D REQUIRED EFFLUENT LIMITS BY POLLUTANT CLASS CONVENTIONAL POLLUTANTS: BEST CONVENTIONAL POLLUTANT CONTROL TECH (“BCT”) MORE STRINGENT THAN BPT, BUT LESS STRINGENT THAN BAT SINCE REQUIRES COST-BENEFIT ANALYSIS COMPLIANCE DEADLINES WERE AFTER BPT DEADLINES TOXICS AND NONCONVENTIONAL POLLUTANTS : BEST AVAILABLE TECHNOLOGY ECONOMICALLY ACHIEVABLE (“BAT”) MORE STRINGENT THAN BCT MAY MATCH SINGLE BEST PERFORMER CONSIDERS COST, BUT NO COST-BENEFIT ANALYSIS NEW SOURCES: BDAT MOST STRINGENT

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PERMIT REQUIREMENT: NRDC v COSTLE (418) ISSUE: MAY EPA EXEMPT CLASSES OF SOURCES FROM PERMIT REQUIREMENT? EPA CONCERNS: WORKLOAD DIFFICULTY OF ESTABLISHING UNIFORM STANDARDS FOR AGRICULTURE HELD: NO AUTHORITY TO EXEMPT RATIONALE LEG HISTORY NEED FOR UNIFORMITY TO AVOID COMPETITION FOR INDUSTRY UNIFORM LIMITATIONS CAN BE MODIFIED TO ACCOUNT FOR SPECIAL CHARACTERISTICS CAN ALSO USE GENERAL PERMITS

WHAT IS A POINT SOURCE? SIERRA CLUB v. ABSTON CONSTRUCTION (423) CITIZENS SUIT AGAINST MINING COMPANY SOURCES: STRIP MINES CREATE ERODIBLE SPOIL PILES SEDIMENT BASINS CONSTRUCTED TO CATCH RUNOFF; SOMETIMES OVERFLOW IN RAIN

ABSTON CONSTRUCTION “POINT SOURCE” “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.” § 502(14)

ABSTON CONSTRUCTION POSITIONS & HOLDING PARTIES’ POSITIONS: SIERRA CLUB: LOOK AT ORIGINAL SOURCES MINING CO: EXCLUDE DISCHARGE THROUGH DITCHES CREATED BY NATURAL EROSION & RAINFALL EPA (AMICUS) HAD INTERMEDIATE POSITION: RUNOFF COLLECTED OR CHANNELED NOT EROSION ABSENT CHANGE E.G. SEDIMENT BASINS, EVEN THOUGH MATERIALS CARRIED AWAY BY RAINWATER & GRAVITY COURT: AGREES WITH EPA GRAVITY FLOW OF RAINWATER IS POINT SOURCE IF MINERS INITIALLY COLLECTED OR CHANNELED

WHAT IS A POINT SOURCE? CONCERNED RESIDENTS v. SOUTHVIEW FARM (427) CITIZEN’S SUIT PLUS STATE LAW CLAIMS NUISANCE, NEGLIGENCE & TRESPASS FACTS LIQUID MANURE STORAGE LAGOONS APPLICATION TO LAND CENTER PIVOT IRRIGATION CONVENTIONAL SPREADING

CONCERNED RESIDENTS v. SOUTHVIEW FARM STATUTES DISCHARGE OF ANY POLLUTANT IS UNLAWFUL. §301. EXCEPT AS IN COMPLIANCE WITH PERMIT ETC “DISCHARGE” IS ADDITION OF ANY POLLUTANT TO NAVIGABLE WATERS FROM ANY POINT SOURCE “POINT SOURCE” AGRICULTURAL STORMWATER DISCHARGES & RETURN FLOWS EXEMPT BUT EXPLICITLY INCLUDES “CAFOs”

CONCERNED RESIDENTS ,CON’T ALLEGED VIOLATIONS & HOLDINGS JULY 13, 1989: LIQUID MANURE FLOWING THROUGH SWALE & DRAIN INTO STREAM HELD: SWALE & PIPE ARE POINT SOURCES DEFENDANT NOT RELIEVED OF LIABILITY SIMPLY BECAUSE IT DOESN’T CONSTRUCT CONVEYANCES SO LONG AS THEY ARE REASONABLY LIKELY TO BE MEANS OF DISCHARGE TO WATERS ALSO, MANURE SPREADING VEHICLES WERE POINT SOURCES

CONCERNED RESIDENTS ,CON’T ALLEGED VIOLATIONS, CONT’D SEPT 26, 1990 & APRIL 15, 1991: ISSUE: EXEMPT AS AGRICULTURAL STORMWATER DISCHARGES? HELD: NOT EXEMPT. NO ESCAPE FORM LIABILITY SIMPLY BECAUSE DISCHARGE OCCURS ON RAINY DAY. DISCHARGE PRIMARILY CAUSED BY OVER SATURATION OF FIELDS WITH MANURE RATHER THAN JUST RAIN; SUFFICIENT MANURE SO THAT RUN-OFF NOT “STORMWATER”

CONCERNED RESIDENTS ,CON’T HOLDING RE EXEMPTION FOR AG RETURN FLOWS EXEMPTION FOR RETURN FLOWS FROM IRRIGATED AGRICULTURE HELD: CAFOs ARE NOT SUBJECT TO EXEMPTION CAFOs ARE EXPLICITLY STATED TO BE POINT SOURCES THIS IS A CAFO EVEN THOUGH CROPS GROWN ON PART OF LAND

WHO ESTABLISHES EFFLUENT LIMITATIONS? DUPONT v. TRAIN (434) ISSUES CHALLENGE TO EPA REGULATIONS SETTING INDUSTRY-WIDE EFFLUENT LIMITATIONS CLAIM: EPA HAS NO POWER TO ADOPT INDUSTRY-WIDE EFFLUENT LIMITATIONS ISSUES: WHO SETS THE EFFLUENT LIMITATIONS? HOW DO THOSE LIMITS RELATE TO THE NPDES PERMITS? ALSO, DO NEW SOURCE STANDARDS HAVE TO ALLOW VARIANCES?

DUPONT v. TRAIN STATUTES § 304: “INFORMATION AND GUIDELINES” EPA TO PUBLISH GUIDANCE FOR EFFLUENT LIMITATIONS ON EXISTING POINT SOURCES “FOR THE PURPOSE OF ADOPTING OR REVISING EFFLUENT LIMITATIONS” § 301: “EFFLUENT LIMITATIONS” DISCHARGE UNLAWFUL UNLESS IT COMPLIES WITH — § 301 (BPT BY ’77; BAT BY ’83 FOR “CLASSES & CATEGORIES OF SOURCES;” REFERS TO § 304 FOR DEFINITION OF BPT & BAT), § 306 (NEW SOURCE PERFORMANCE STANDARDS REQUIRING BDAT), & § 402 (EPA OR STATES ISSUE NPDES PERMITS THAT REQUIRE COMPLIANCE WITH § 301 (EFFLUENT LIMITATIONS)

DUPONT v. TRAIN FACTS DEADLINES TOO AMBITIOUS; EPA DID NOT ADOPT § 304 GUIDELINES BEFORE DEFINING EFFLUENT LIMITATIONS EPA ADOPTED “EFFLUENT LIMIT GUIDELINE REGULATIONS” WITH NUMERICAL EFFLUENT LIMITS FOR INDUSTRY SUBCATEGORIES (bottom 436) COURT OF APPEAL: EPA EFFLUENT LIMITS ONLY “PRESUMPTIVELY” APPLICABLE TO INDIVIDUAL PERMITS (top 437)

DUPONT v. TRAIN THE INTERPRETATION PROBLEM SUPREME COURT: “Nowhere are we told who sets the § 301 effluent limitations, or precisely how they relate to the § 304 guidelines and § 402 permits.” (middle 436)

DUPONT v. TRAIN PARTIES’ POSITIONS EPA: § 301 AUTHORIZES REGULATIONS FOR CLASSES OF SOURCES INDUSTRY: NO AUTHORITY FOR REGULATIONS; JUST DESCRIPTION OF LIMITS TO BE SET PERMIT BY PERMIT EPA: § 304 GUIDELINES ARE AID TO ADOPTING § 301 REGULATIONS INDUSTRY: GUIDE PERMIT ISSUER UNDER § 402 EPA: § 402 PERMITS INCORPORATE ACROSS THE BOARD EFFLUENT LIMITATIONS INDUSTRY: LIMITS SET PLANT BY PLANT

DUPONT v. TRAIN COURT’S ANALYSIS LANGUAGE SUPPORTS EFFLUENT LIMITS BY CLASSES OF SOURCES: § 301: 1983 EFFLUENT LIMITS FOR “CATEGORIES AND CLASSES OF POINT SOURCES” ARE TO BE ACHIEVED . . .” § 304: “FOR THE PURPOSE OF ADOPTING OR REVISING EFFLUENT LIMITATIONS” § 509: JUDICIAL REVIEW SECTION: “ADMINISTRATOR’S ACTION . . . IN APPROVING . . . ANY EFFLUENT LIMITATION UNDER § 301 . . .”

DUPONT HOLDINGS EPA HAS POWER UNDER § 301, TO ISSUE BINDING REGULATIONS ESTABLISHING EFFLUENT LIMITATIONS FOR CATEGORIES AND CLASSES OF POINT SOURCES NO VARIANCE FOR NSPS RATIONALE “STANDARDS” IS ABSOLUTE UNLIKE § 301(c) FOR BPT, NO VARIANCE LANGUAGE

RELIEF PROVISIONS § 301(n) “FUNDAMENTALLY DIFFERENT FACTORS.” EPA, WITH CONCURRENCE OF STATE, MAY ESTABLISH ALTERNATIVE EFFLUENT LIMIT FOR A FACILITY WITH FUNDAMENTALLY DIFFERENT FACTORS, OTHER THAN COST, THAN THOSE CONSIDERED IN ESTABLISHING THE BPT OR BCT LIMIT. § 301(c) “MODIFICATION OF TIMETABLE” EPA MAY MODIFY A BAT REQUIREMENT FOR A POINT SOURCE IF — SUCH MODIFIED REQUIREMENT REPRESENTS THE “MAXIMUM USE OF TECHNOLOGY WITHIN THE ECONOMIC CAPABILITY OF THE OWNER OR OPERATOR” AND WILL RESULT IN REASONABLE FURTHER PROGRESS TOWARD ELIMINATION OF THE DISCHARGE. NOTE: UNLIKE 301(n), ALLOWS CONSIDERATION OF ECON IMPACTS, BUT DOES NOT ALLOW DIFFERENT ULTIMATE GOAL