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 1.Property Rights -- Nuisance 2.Subsidies for Pollution Reduction 3.Taxes on Pollution Production 4.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 Nixon’s 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 R&D 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 H 2 0 –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 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 [?]

20. 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)

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 firm’s 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: < $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