1. THE CLEAN WATER ACT CUYAHOGA RIVER, OHIO —1969

2. 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

3. ALL POINT SOURCE DISCHARGES UNLAWFUL EXCEPT BY PERMIT. § 301
POINT SOURCES OVERVIEW: 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”

4. 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

5. TOXICS CONVENTIONAL NONCONVENTIONAL
POINT SOURCES OVERVIEW: 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

6. CONVENTIONAL POLLUTANTS:
POINT SOURCES OVERVIEW: 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

7. HAL

8. 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

9. 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

10. 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)

11. 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

12. 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

13. 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”

14. 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

15. 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”

16. 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

17. 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?

18. 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)

19. 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)

20. 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)

21. 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

22. 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 § ”

23. 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

24. 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