Clean Water Act
The Federal Water Pollution Control Act of 1948 was the first major U.S. law to address water pollution. Growing public awareness and concern for controlling water pollution led to sweeping amendments in 1972. Specifically, the Refuse Act Cases became an impetus for adopting the legislation.
In Zabel v Tabb, 430 F2d 199 (5 Cir. 1970), action by landowners to compel Secretary of Army to issue permit to dredge and fill in navigable waters of bay for a trailer park. The United States District Court for the Middle District of Florida at Tampa, Ben Krentzman, J., granted landowners' motion for summary judgment and denied motion for summary judgment by the United States and its officers and appeal was taken. The Court of Appeals, John R. Brown, Chief Judge, held that under National Environmental Policy Act of 1969 and the Fish and Wildlife Coordination Act, Secretary of Army could refuse to authorize dredge and fill project in navigable waters for factually substantial ecological reasons even though project would not interfere with navigation, flood control or the production of power.
In US v Penn. Industrial Chem. Corp., 93 S Ct 1804 a company discharging refuse into navigable waters without a permit, in violation of Rivers and Harbors Act of 1899, and it appealed. The Court of Appeals, reversed and remanded, and Government's petition for certiorari was granted. The Supreme Court, Mr. Justice Brennan, held that the Government may prosecute an alleged polluter under that section of Act making it unlawful to discharge or deposit into navigable waters any refuse matter of any kind or description whatever, except as permitted by the Secretary of Army, even in absence of promulgation of formal regulatory-permit program by the Secretary. In addition, the Court held that Congress did not intend to permit discharge specifically prohibited by Act when it enacted the 1965 and 1970 Water Quality Acts directing the States to create pollution prevention and abatement programs. Furthermore, the Court held that it was error for the District Court to refuse to permit manufacturer to present evidence in support of its claim that it had been affirmatively misled by Army Corps of Engineer's long standing regulations interpreting Act as applying only to deposits hindering navigation into believing that discharges of industrial pollutants were not a violation of the Act.
In US v. Rohm & Haas, 353 F Supp 993 (US Dist. Ct, SD Tex., 1973) and US v. Rohm & Haas, 500 F2d 167 (5th Cir. 1974), the United States brought action to enjoin defendant from discharging refuse materials from its plant into Houston Ship Channel in violation of Refuse Act. The District Court, Singleton, J., held that discharge of effluent wastes was Refuse Act violation which was remediable by injunction, and that though it was not within province of Court to direct or compel any one method of treating the deleterious wastes being discharged, the Court, in light of expert testimony relating to measurement standards, would permanently enjoin defendant from allowing quantities of ammonia, cyanide, chromium, suspended solids, oil and grease and other substances to be placed in Houston Ship Channel in excess of specified amounts. Later, the government brought continuous discharge pollution action under the Refuse Act against operator of the chemical plant. Court entered injunctive order setting limitations on discharge of various pollutants into channel by operator and totally enjoined barging of such wastes to sea, and the operator appealed. The Court of Appeals, Roney, Circuit Judge, held that the action, which had been instituted in the name of the United States prior to enactment of Federal Water Pollution Control Act Amendments which provided, inter alia, that there could be no violation of Refuse Act until December 31, 1974, where permit for discharge had been applied for, was within the ambit of the amendments' saving clause; that injunctive order would be modified so as not to govern operator's conduct after the permit had been issued; and that barging of wastes to sea was outside the scope of the Refuse Act.
As amended in 1977, the law became commonly known as the Clean Water Act (CWA). The 1977 amendments:
Established the basic structure for regulating pollutants discharges into the waters of the United States.
Gave EPA the authority to implement pollution control programs such as setting wastewater standards for the industry.
Maintained existing requirements to set water quality standards for all contaminants in surface waters.
Made it unlawful for any person to discharge any pollutant from a point source into navigable waters unless a permit was obtained under its provisions.
Funded the construction of sewage treatment plants under the construction grants program.
Subsequent amendments modified some of the earlier CWA provisions.
Revisions in 1981 streamlined the municipal construction grants process, improving the capabilities of treatment plants built under the program. Changes in 1987 phased out the construction grants program, replacing it with the State Water Pollution Control Revolving Fund, more commonly known as the Clean Water State Revolving Fund. This new funding strategy addressed water quality needs by building on EPA-state partnerships. Over the years, many other laws have changed parts of the Clean Water Act. Title I of the Great Lakes Critical Programs Act of 1990, for example, put into place parts of the Great Lakes Water Quality Agreement of 1978, signed by the U.S. and Canada, where the two nations agreed to reduce certain toxic pollutants in the Great Lakes. That law required EPA to establish water quality criteria for the Great Lakes addressing 29 toxic pollutants with maximum levels that are safe for humans, wildlife, and aquatic life. It also required EPA to help the States implement the criteria on a specific schedule. Scope of “The Waters of the United States” Protected by the Clean Water Act The Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. The basis of the CWA was enacted in 1948 and was called the Federal Water Pollution Control Act, but the Act was significantly reorganized and expanded in 1972. "Clean Water Act" became the Act's common name with amendments in 1977. Under the CWA, EPA has implemented pollution control programs such as setting wastewater standards for industry. We have also set water quality standards for all contaminants in surface waters. The CWA made it unlawful to discharge any pollutant from a point source into navigable waters unless a permit was obtained. EPA's National Pollutant Discharge Elimination System (NPDES) permit program controls discharges. Point sources are discrete conveyances such as pipes or man-made ditches. Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need an NPDES permit; however, industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters. Several Judicial Interpretations have modified the scope of the CWA. In Leslie Salt v US, 55 F3d 1388 (9thCir 1995) a property owner filed an action to contest Army Corps of Engineers' jurisdiction over its property under the Clean Water Act (CWA). The District Court, held for the property owner, and appeal was taken. The Court of Appeals, reversed and remanded. On remand, the District Court, Northern District of California, Charles A. Legge, J., entered judgment against property owner, who appealed. The Court of Appeals, Circuit Judge, held that: (1) court's holding on prior appeal that jurisdiction of Corps under CWA reached isolated waters used only by migratory birds was not clearly erroneous, so as to warrant reconsideration, and, Circuit Judge, and (2) civil penalties are mandatory, not discretionary, under CWA section providing that any person who violates one of enumerated provisions “shall be subject to a civil penalty” not to exceed $25,000 per day for each violation. In Cargill, Inc. v. US, 116 S CT 407 (1995), Petitioner, the successor in interest to Leslie Salt Company, owns a 153-acre tract of land southeast of San Francisco. Across the highway is the San Francisco Bay National Wildlife Refuge, which was created when the United States condemned land previously owned by petitioner. In approximately 1919, the predecessor of Leslie Salt began manufacturing salt on the property. To facilitate salt production, Leslie Salt dug pits on dry ground to collect calcium chloride and dug shallow basins to crystallize salt. These basins lie on approximately 12.5 acres of the tract. Leslie Salt discontinued salt production in 1959. Since then, the area has been dry most of the year, but, during the winter and spring, rainwater occasionally creates temporary ponds. In 1985, Leslie Salt began digging a feeder ditch and a siltation pond on its property and began discharging fill material that affected the basins. After learning of Leslie Salt's activities, the Corps issued a cease and desist order under the Clean Water Act, 86 Stat. 816, as amended. Leslie Salt filed suit challenging the Corps' jurisdiction over its property. In SWANCC (an Isolated Waters Case), a consortium of municipalities sued the United States Army Corps of Engineers, challenging Corps' exercise of jurisdiction over abandoned sand and gravel pit on which consortium planned to develop disposal site for nonhazardous solid waste and denial of a Clean Water Act (CWA) permit for that purpose. The United States District Court for the Northern District of Illinois, granted summary judgment for Corps on jurisdictional issue, and consortium voluntarily dismissed remainder of its claims. Consortium appealed. The Court of Appeals for the Seventh Circuit, affirmed. Certiorari was granted. The Supreme Court, Chief Justice, held that Corps' rule extending definition of “navigable waters” under CWA to include intrastate waters used as habitat by migratory birds exceeded authority granted to Corps under CWA. In Rapanos(a Non-navigable Tributaries and Adjacent Wetlands case), the federal government brought enforcement action alleging that developers and their wholly-owned companies illegally discharged fill material into protected wetlands, in violation of Clean Water Act (CWA). The United States District Court for the Eastern District of Michigan, Chief Judge, entered judgment in favor of government, and the United States Court of Appeals for the Sixth Circuit, affirmed. In a separate action, property owners whose request for permit to fill property was denied brought action against government entities, seeking judicial review under Administrative Procedure Act (APA). The United States District Court for the Eastern District of Michigan, granted summary judgment for government, and the United States Court of Appeals for the Sixth Circuit, affirmed. The Supreme Court granted certiorari and consolidated the cases. The Supreme Court Justice announced the judgment of the court, holding that: (1) term “navigable waters,” under CWA, includes only relatively permanent, standing or flowing bodies of water, not intermittent or ephemeral flows of water, and (2) only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right are adjacent to such waters and covered by the CWA. Water Pollution Control under the National Pollutant Discharge Elimination System Water pollution degrades surface waters making them unsafe for drinking, fishing, swimming, and other activities. As authorized by the Clean Water Act, the National Pollutant Discharge Elimination System (NPDES) permit program controls water pollution by regulating point sources that discharge pollutants into waters of the United States. Point sources are discrete conveyances such as pipes or man-made ditches. Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need an NPDES permit; however, industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters. In most cases, the NPDES permit program is administered by authorized states. Since its introduction in 1972, the NPDES permit program is responsible for significant improvements to our Nation's water quality. Section 402 of Title IV of the FWPCA, Permits and Licenses, created today’s system for permitting wastewater discharges, known as the NPDES program. Under the requirements of the program, a point source may be authorized to discharge pollutants into waters of the United States by obtaining a permit. A permit provides two types of control: technology-based limitations (based on the technological and economic ability of dischargers in the same category to control the discharge of pollutants in wastewater) and water quality-based limitations (to protect the quality of the specific waterbody receiving the discharge). The FWPCA Amendments of 1972 established several important requirements and deadlines. Municipal facilities were required to meet secondary treatment standards by July 1, 1977. Industrial facilities were required to meet two levels of technology standards: Best Practicable Control Technology Currently Available (BPT) and Best Available Technology Economically Achievable (BAT), which would bring them further toward the goal of eliminating the discharge of all pollutants. [CWA section 301 (b)(2)(A)]. Compliance deadlines for BPT and BAT were established as of July 1, 1977, and July 1, 1983, respectively. In addition to BPT and BAT requirements for industrial categories, the 1972 FWPCA Amendments established new source performance standards (NSPS) or best available demonstrated control technology including where practicable a standard permitting no discharge of pollutants [CWA section 306(a)]. The Legislative History indicates that Congress believed that technologies would be more affordable for new dischargers who could plan control technologies at the design phase. The standards represent state-of-the-art control technologies for new sources because the permittees have the opportunity to install the most efficient production processes and the latest in treatment technologies during construction. NSPS are effective on the date the facility begins operation, and the facility must demonstrate compliance within 90 days of start-up. EPA tried to set national, uniform effluent limitations guidelines and standards (effluent guidelines) as a basis for technology-based limitations; however, most effluent guidelines were not in place when the first set of permits was issued between 1973 and 1976. About 75 percent of the first round permits were issued under a section of the act that allows a permit writer to use his or her best professional judgment to establish case-by-case limitations. Using that approach, a single permit writer developed effluent limitations for a specific facility using his or her knowledge of the industry and the specific discharge, rather than using a set of national standards and limitations developed by EPA for the entire industry. This first round of permitting focused on conventional pollutants, which generally are found in sanitary waste from households, businesses, and industries. CWA section 304(a)(4) and Title 40 of the Code of Federal Regulations (CFR) 401.16 designate the conventional pollutants with oil and grease added to § 401.16 in 1979. The following are formally designated as conventional pollutants: Five-day Biochemical Oxygen Demand (BOD5). Total Suspended Solids (TSS). pH. Fecal Coliform. Oil and Grease. The 1972 FWPCA Amendments, however, also required that EPA publish a list of toxic pollutants within 90 days and propose effluent standards for those pollutants 6 months later. EPA was not able to meet those requirements because of the lack of information on treatability. The Natural Resources Defense Council (NRDC) sued EPA, resulting in a court supervised consent decree (NRDC et al. v. Train, 8 E.R.C. 2120, DDC 1976) that identified the following: Toxic (priority) pollutants to be controlled. Primary industries for technology-based control. Methods for regulating toxic discharges through the authorities of the FWPCA Amendments.
The provisions of the consent decree were incorporated into the framework of the 1977 FWPCA Amendments, formally known as the CWA. This statute shifted the emphasis of the NPDES program from controlling conventional pollutants to controlling toxic pollutant discharges. CWA section 307(a)(1) required EPA to publish a list of toxic pollutants or combination of pollutants. Those pollutants often are called the priority pollutants and are listed in § 401.15. The terms toxic pollutant and priority pollutant are used interchangeably throughout this document.
CWA section 307(a) originally identified 65 toxic pollutants and classes of pollutants for 21 major categories of industries (known as primary industries). That list was later further defined as the current list of 126 toxic pollutants. The priority pollutants are listed in Appendix C of this document and in Appendix A of Part 423. Note that the list goes up to 129; however, there are only 126 priority pollutants because 017, 049, and 050 were deleted.
The 1977 CWA adjusted technology standards to reflect the shift toward control of toxics, clarified and expanded the concept of BAT controls, created a new level of control for conventional pollutants, and made changes to strengthen the industrial pretreatment program. The 1977 law created a new pollutant category, nonconventional pollutants, that included pollutants (such as chlorine and ammonia) not specifically categorized as conventional or toxic. The CWA clarified that BAT covers both toxic and nonconventional pollutants, extended the compliance deadline for BAT for toxic pollutants to July 1, 1984, established a three-year deadline for compliance with BAT for newly listed toxics, and gave industries until as late as July 1, 1987 to meet BAT requirements for nonconventional pollutants. In addition, conventional pollutants, controlled by BPT and BAT in the first round of permitting, were now
subject to a new level of control termed Best Conventional Pollutant Control Technology (BCT). The CWA established a compliance deadline for BCT of July 1, 1984. BCT was not an additional performance standard, but replaced BAT for the control of conventional pollutants. Finally, among other changes, the 1977 CWA authorized EPA to approve local pretreatment programs and required authorized states to modify their programs to provide for local pretreatment program oversight.
The 1977 CWA recognized that the technology-based limitations were not able to prevent the discharge of toxic substances in toxic amounts in all waterways. To complement its work on technology-based limitations, EPA initiated a national policy in February 1984 to control toxics using a water quality approach. On February 4, 1987, Congress amended the CWA with the 1987 WQA that outlined a strategy to accomplish the goal of meeting state water quality standards. The 1987 WQA required all states to identify waters that were not expected to meet water quality standards after technology-based controls on point source were imposed. Each state then had to prepare individual control strategies to reduce toxics from point and nonpoint sources to meet the water quality standards. Among other measures, those plans were expected to address control of pollutants beyond technology-based levels.
The 1987 WQA further extended the compliance deadline for BAT- and BCT-based effluent limitations, this time to a new deadline of March 31, 1989. The 1987 WQA also established new schedules for issuing NPDES permits to industrial and municipal stormwater dischargers. In addition to meeting water quality-based standards, industrial stormwater discharges must meet the equivalent of BAT and BCT effluent quality standards. Municipal separate storm sewer systems (MS4s) were required to have controls to reduce pollutant discharges to the maximum extent practicable (MEP), including management practices, control techniques and system design and engineering methods, and such other provisions as the Administrator deems appropriate for the control of such pollutants [CWA section 402(p)(3)(B)]. The 1987 WQA also required EPA to identify toxics in sewage sludge and establish numeric limitations to control such toxics. A statutory anti-backsliding requirement in the WQA specified the circumstances under which an existing permit can be modified or reissued with less stringent effluent limitations, standards, or conditions than those already imposed.
Since 1987, there have been minor revisions to the CWA (e.g., Combined Sewer Overflow program requirements). However, the basic structure of the NPDES program remains unchanged from the framework established in the 1972 FWPCA Amendments.
2008 Vessel General Permit
The EPA developed the 2008 Vessel General Permit (VGP) regulates discharges incidental to the normal operation of vessels operating in a capacity as a means of transportation. The VGP includes general effluent limits applicable to all discharges; general effluent limits applicable to 26 specific discharge streams; narrative water-quality based effluent limits; inspection, monitoring, recordkeeping, and reporting requirements; and additional requirements applicable to certain vessel types. Recreational vessels as defined in section 502(25) of the Clean Water Act are not subject to this permit. In addition, with the exception of ballast water discharges, non-recreational vessels less than 79 feet (24.08 meters) in length, and all commercial fishing vessels, regardless of length, are not subject to this permit. EPA signed the final VGP on December 18, 2008, with an effective date of December 19, 2008. Subsequently, the U.S. District Court for the Northern District of California signed an order providing that "the exemption for discharges incidental to the normal operation of a vessel, contained in 40 C.F.R. § 122.3(a), is vacated as of February 6, 2009." Therefore, the regulated community needed to comply with the terms of the VGP as of February 6, 2009.
NPDES Permit Application and Issuance Procedures
Under the NPDES program any point source that discharges or proposes to discharge pollutants into waters of the United States is required to obtain an NPDES permit. Understanding how each of these terms (i.e., permit, pollutant, waters of the United States, and point source) is defined is the key to defining the scope of the NPDES program.
A permit is a license, issued by the government to a person or persons granting permission to do something that would otherwise be illegal without the permit. An NPDES permit typically is a license for a facility to discharge a specified amount of a pollutant into a receiving water under certain conditions; however, NPDES permits can also authorize facilities to process, incinerate, landfill, or beneficially use biosolids (sewage sludge). A discharger does not have a right to receive a permit, and permits may be revoked for cause such as noncompliance with the conditions of the permit.
While the limitations and conditions in NPDES individual permits are unique to each permittee, the process used to develop the limitations and conditions and issue each permit generally follows a common set of steps.
For individual permits, the permitting process generally begins when a facility operator submits an application. After receiving the application and making a decision to proceed with the permit, the permit writer reviews the application for completeness and accuracy. When the permit writer determines that the application is complete and has any additional information needed to draft the permit, the permit writer develops the draft permit and the justification for the permit conditions (i.e., the fact sheet or statement of basis).
The first major step in the permit development process is deriving technology-based effluent limitations (TBELs). Following that step, the permit writer derives effluent limitations that are protective of state water quality standards (i.e., water quality-based effluent limitations [WQBELs]) as needed. The permit writer then compares the TBELs with the WQBELs and, after conducting an anti-backsliding analysis if necessary, applies the final limitations in the NPDES permit. The permit writer must document the decision-making process for deriving limitations in the permit fact sheet. It is quite possible that a permit will have limitations that are technology-based for some parameters and water quality-based for others. For example, a permit could contain effluent limitations for total suspended solids (TSS) based on national effluent limitations guidelines and standards (effluent guidelines) (technology-based), limitations for ammonia based on preventing toxicity to aquatic life (water quality-based), and limitations for 5-day biochemical oxygen demand (BOD5) that have different bases, such as an average monthly limitation based on effluent guidelines and a maximum daily limitation based on water quality standards.
After effluent limitation development, the permit writer develops appropriate monitoring and reporting requirements and facility-specific special conditions. The permit writer then adds standard conditions, which are the same for all permits. The next step is to provide an opportunity for public participation in the permit process and EPA review of the permit or, in the case of an EPA-issued permit, certification under CWA section 401 by the state with jurisdiction over the receiving water that the permit will comply with its water quality standards. The permitting authority issues a public notice announcing the draft permit and inviting interested parties to submit comments. If there is significant public interest, the permitting authority can hold a public hearing. Taking into consideration the public comments, the permitting authority then produces a final permit, with careful attention to documenting the process and decisions for the administrative record, and issues the final permit to the facility. The permitting authority might decide to make significant changes to the draft permit according to public comment and then provide another opportunity for public review and comment on the revised permit
Overview of the Development and Issuance Process for NPDES General Permits
The process for developing and issuing NPDES general permits is similar to the process for individual permits; however, there are some differences in the sequence of events. For general permits, the permitting authority first identifies the need for a general permit and collects data that demonstrate that a group or category of dischargers has similarities that warrant a general permit. In deciding whether to develop a general permit, permitting authorities consider whether:
A large number of facilities will be covered.
The facilities have similar production processes or activities.
The facilities generate similar pollutants.
The remaining steps of the permit process are the same as for individual permits. The permitting authority develops a draft permit that includes effluent limitations, monitoring conditions, special conditions, and standard conditions. The permitting authority then issues a public notice and addresses public comments, completes the EPA review or CWA section 401 certification process, develops the administrative record, and issues the final permit. The final permit will also establish the requirements for the specific information that must be submitted by a facility that wishes to be covered under the general permit.
After the final general permit has been issued, facilities that wish to be covered under the general permit typically submit a Notice of Intent (NOI) to the permitting authority. After receiving the NOI, the permitting authority can request additional information describing the facility, notify the facility that it is covered by the general permit, or require the facility to apply for an individual permit.
Publicly Owned Treatment Works
A number of NPDES permit program areas affect how a municipality handles its sanitary wastewater and stormwater runoff. Properly managed municipal facilities, such as publicly owned treatment works (POTWs), and wastewater systems, such as separate and combined storm sewer systems, play an important role in protecting community health and local water quality. Municipalities rely on assistance from other partners, such as industry, developers, and homeowners, to ensure that they can meet the requirements contained in their municipal NPDES permits. Municipal staff, responsible for meeting NPDES permit obligations, must understand how the NPDES permit program works, who should be involved and educated about the NPDES program, and what information is available to help perform their jobs effectively.
Pretreatment and Indirect Dischargers
Certain industrial discharge practices can interfere with the operation of POTWs, leading to the discharge of untreated or inadequately treated wastewater into rivers, lakes, and other waters of the United States. A discharge that causes interference inhibits or disrupts the POTW, its treatment processes or operations, or its sludge processes, use, or disposal and therefore causes a violation of any requirement of the POTW's NPDES permit. Some pollutants are not amenable to biological wastewater treatment at POTWs and can pass through the treatment plant untreated. This pass through of pollutants affects the receiving water and might cause fish kills or other deleterious effects. Even when a POTW has the capability to remove toxic pollutants from wastewater, the pollutants can end up in the POTW’s sewage sludge, which might then be processed into a fertilizer or soil conditioner that is land-applied to food crops, parks, or golf courses or elsewhere.
The General Pretreatment Regulations of the National Pretreatment Program require all large POTWs (those designed to treat flows of more than 5 million gallons per day) and smaller POTWs (that accept wastewater from IUs that could affect the treatment plant or its discharges) to establish local pretreatment programs. These local programs must enforce all national pretreatment standards and requirements in addition to any more stringent local requirements necessary to protect site-specific conditions at the POTW. Approximately 1,600 POTWs have developed and are implementing local pretreatment programs designed to control discharges from approximately 23,000 significant IUs.
Regulation of Wetlands: Section 404
Section 404 of the Clean Water Act (CWA) establishes a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands. Activities in waters of the United States regulated under this program include fill for development, water resource projects (such as dams and levees), infrastructure development (such as highways and airports) and mining projects.
Section 404 requires a permit before dredged or fill material may be discharged into waters of the United States, unless the activity is exempt from Section 404 regulation (e.g. certain farming and forestry activities). The basic premise of the program is that no discharge of dredged or fill material may be permitted if: (1) a practicable alternative exists that is less damaging to the aquatic environment or (2) the nation’s waters would be significantly degraded. In other words, when you apply for a permit, you must show that you have, to the extent practicable:
Taken steps to avoid wetland impacts;
Minimized potential impacts on wetlands; and
Provided compensation for any remaining unavoidable impacts.
Proposed activities are regulated through a permit review process. An individual permit is required for potentially significant impacts. Individual permits are reviewed by the U.S. Army Corps of Engineers, which evaluates applications under a public interest review, as well as the environmental criteria set forth in the CWA Section 404(b)(1) Guidelines. However, for most discharges that will have only minimaladverse effects, a general permit may be suitable.
General permits are issued on a nationwide, regional, or State basis for particular categories of activities. The general permit process eliminates individual review and allows certain activities to proceed with little or no delay, provided that the general or specific conditions for the general permit are met. For example, minor road activities, utility line backfill, and bedding are activities that can be considered for a general permit. States also have a role in Section 404 decisions, through State program general permits, water quality certification, or program assumption.
Oil and Hazardous Substances Spills: Section 311
Originally published in 1973 under the authority of §311 of the Clean Water Act, the Oil Pollution Prevention regulation sets forth requirements for prevention of, preparedness for, and response to oil discharges at specific non-transportation-related facilities. To prevent oil from reaching navigable waters and adjoining shorelines, and to contain discharges of oil, the regulation requires these facilities to develop and implement Spill Prevention, Control, and Countermeasure (SPCC) Plans and establishes procedures, methods, and equipment requirements (Subparts A, B, and C). In 1990, the Oil Pollution Act amended the Clean Water Act to require some oil storage facilities to prepare Facility Response Plans. On July 1, 1994, EPA finalized the revisions that direct facility owners or operators to prepare and submit plans for responding to a worst-case discharge of oil (Subpart D).
Following the Floreffe, Pennsylvania oil spill in 1988, EPA formed the SPCC Task Force to examine federal regulations governing oil spills from aboveground storage tanks. The SPCC Task Force recommended that EPA clarify certain provisions in the Oil Pollution Prevention regulation, establish additional technical requirements for regulated facilities, and require the preparation of facility-specific response plans. In response to the Task Force recommendation, EPA proposed revisions to the Oil Pollution Prevention regulation in the 1990s and finalized the amendments in 2002. EPA has since amended the SPCC requirements of the Oil Pollution Prevention regulation to extend compliance dates and clarify and/or tailor specific regulatory requirements.
The Oil Pollution Act (OPA) of 1990 (33 U.S.C. §2701 et seq.) (1990) streamlined and strengthened EPA's ability to prevent and respond to catastrophic oil spills. A trust fund financed by a tax on oil is available to clean up spills when the responsible party is incapable or unwilling to do so. The OPA requires oil storage facilities and vessels to submit to the Federal government plans detailing how they will respond to large discharges. EPA has published regulations for aboveground storage facilities; the Coast Guard has done so for oil tankers. The OPA also requires the development of Area Contingency Plans to prepare and plan for oil spill response on a regional scale.
Spill Prevention, Control, and Countermeasure (SPCC) Rule
The purpose of the SPCC rule is to help facilities prevent a discharge of oil into navigable waters or adjoining shorelines. This rule is part of the U.S. Environmental Protection Agency’s oil spill prevention program and was published under the authority of Section 311(j)(1)(C) of the Federal Water Pollution Control Act (Clean Water Act) in 1974. The rule may be found at Title 40, Code of Federal Regulations, Part 112.
1. Who is covered by the SPCC Rule
A facility is covered by the SPCC rule if it has an aggregate aboveground oil storage capacity greater than 1,320 U.S. gallons or a completely buried storage capacity greater than 42,000 U.S. gallons and there is a reasonable expectation of an oil discharge into or upon navigable waters of the U.S. or adjoining shorelines.
2. What types of oil are covered
Oil of any type and in any form is covered, including, but not limited to: petroleum; fuel oil; sludge; oil refuse; oil mixed with wastes other than dredged spoil; fats, oils or greases of animal, fish, or marine mammal origin; vegetable oils, including oil from seeds, nuts, fruits, or kernels; and other oils and greases, including synthetic oils and mineral oils.
3. What kinds of facilities are covered
A facility that stores, processes, refines, uses or consumes oil and is non-transportation-related is potentially subject to the SPCC rule. Operations that are intended to move oil from one location to another, i.e. transportation-related, are not included.
4. Covered Facilities/operations:
Onshore and offshore oil well drilling facilities;
Onshore and offshore oil production facilities (including separators and storage facilities);
Oil refining or storage facilities;
Industrial, commercial, agricultural, or public facilities using or storing oil;
Certain waste treatment facilities;
Loading racks, transfer hoses, loading arms, and other equipment;
Vehicles (e.g. tank trucks) and railroad cars used to transport oil exclusively within the confines of a facility; and Pipeline systems used to transport oil exclusively within the confines of a facility.
5. Kinds of Activities Typically Not Covered:
Interstate or inter-facility oil pipeline systems
Oil transported in vessels (e.g. ships, barges)
Oil transported between facilities by rail car or tanker truck
6. If covered by the SPCC, a facility that meets the criteria described above must comply with the SPCC rule by preventing oil spills and developing and implementing an SPCC Plan.
Prevent oil spills: Steps that a facility owner/ operator can take to prevent oil spills include: Using containers suitable for the oil stored. For example, use a container designed for flammable liquids to store gasoline;
Providing overfill prevention for your oil storage containers. You could use a high-level alarm or audible vent;
Providing sized secondary containment for bulk storage containers, such as a dike or a remote impoundment. The containment needs to hold the full capacity of the container plus possible rainfall. The dike may be constructed of earth or concrete. A double-walled tank may also suffice;
Providing general secondary containment to catch the most likely oil spill where you transfer oil to and from containers and for mobile refuelers and tanker trucks. For example, you may use sorbent materials, drip pans or curbing for these areas; and Periodically inspecting and testing pipes and containers.
Visually inspect aboveground pipes and oil containers according to industry standards; buried pipes need to be leak tested when they are installed or repaired. Include a written record of inspections in the Plan.
7. Prepare and implement an SPCC Plan:
The owner or operator of the facility must develop and implement an SPCC Plan that describes oil handling operations, spill prevention practices, discharge or drainage controls, and the personnel, equipment and resources at the facility that are used to prevent oil spills from reaching navigable waters or adjoining shorelines. Although each SPCC Plan is unique to the facility, there are certain elements that must be described in every Plan including:
Operating procedures at the facility to prevent oil spills;
Control measures (such as secondary containment) installed to prevent oil spills from entering navigable waters or adjoining shorelines; and
Countermeasures to contain, cleanup, and mitigate the effects of an oil spill that has impacted navigable waters or adjoining shorelines.
Wet Weather Regulations: Control of Stormwater and Discharges
The National Pollutant Discharge Elimination System (NPDES) Stormwater Program regulates stormwater discharges from three potential sources: municipal separate storm sewer systems (MS4s), construction activities, and industrial activities. Most stormwater discharges are considered point sources, and operators of these sources may be required to receive an NPDES permit before they can discharge. This permitting mechanism is designed to prevent stormwater runoff from washing harmful pollutants into local surface waters such as streams, rivers, lakes or coastal waters.
Most states are authorized to implement the NPDES Stormwater Program and administer their own stormwater permitting programs. EPA remains the permitting authority in a few states, territories and on most tribal lands. For these areas, EPA provides oversight and issues stormwater permits.
Covered under the NPDES Stormwater Program
The NPDES Stormwater Program covers the following types of stormwater discharges:
MS4s - Operators of large, medium and regulated small MS4s may be required to obtain authorization to discharge stormwater.
Construction Activities - Operators of construction sites that are one acre or larger (including smaller sites that are part of a larger common plan of development) may be required to obtain authorization to discharge stormwater under an NPDES construction stormwater permit. Where EPA is the permitting authority, operators must meet the requirements of EPA's Construction General Permit (CGP).
Industrial Activities - Industrial sectors may require authorization under an NPDES industrialstormwater permit for stormwater discharges. Where EPA is the permitting authority, operators must meet the requirements of EPA's Multi-Sector General Permit.
Total Maximum Daily Loads: Section 303(d)
Under section 303(d) of the Clean Water Act, states, territories, and authorized tribes are required to develop lists of impaired waters. These are waters that are too polluted or otherwise degraded to meet the water quality standards set by states, territories, or authorized tribes. The law requires that these jurisdictions establish priority rankings for waters on the lists and develop TMDLs for these waters. A Total Maximum Daily Load, or TMDL, is a calculation of the maximum amount of a pollutant that a waterbody can receive and still safely meet water quality standards.
Enforcement: Sections 309 and 505
The federal laws regulate a wide variety of sources, including businesses, individuals, organizations, and public entities (such as water authorities). Other EPA enforcement programs specialize in particular aspects of these laws. Where violations are committed by federally-owned facilities or businesses, the Federal Facility Enforcement program has primary responsibility. When the remediation or clean up of abandoned waste sites, private facilities or federal facilities is required, Clean Up Enforcement takes over. If an intentional or deliberate violations are found, they are referred by EPA to the Criminal Enforcement program for enforcement action.
Alternative Dispute Resolution (ADR) is "any procedure that is used to resolve issues in controversy, including but not limited to, conciliation, facilitation, mediation, fact finding, mini-trials, arbitration, and use of ombuds, or any combination thereof." (Administrative Dispute Resolution Act of 1996, 5 USC 571(3)). All of these procedures involve a neutral third party, a person who assists others in designing and conducting a neutral process. The neutral third party has no stake in the substantive outcome of the process. Neutral third parties may be Agency employees or may come from outside EPA, depending on the nature of a specific dispute or need.
EPA utilizes a series of computer models to address three economic issues that commonly arise in the assessment of civil penalties. Those three issues are: 1) what economic benefit did the violator obtain in violating the law? 2) how do we evaluate claims that the violator cannot afford to pay for compliance, clean-up and/or civil penalties? and 3) what is the real out of pocket expense for a SEP, a supplemental environmental project (i.e. a project whereby the violator goes beyond legal compliance in mitigation of its penalty liability). The BEN model calculates a violator’s economic benefit; ABEL, INDIPAY and MUNIPAY evaluate inability to pay claims; and PROJECT calculates the net-present value of a SEP.
The Supplemental Environmental Projects (SEPs) Policy is one of many tools that the enforcement program utilizes when settling a civil judicial or administrative enforcement action. The SEP Policy provides for the inclusion in settlements of environmentally beneficial projects which the defendant/respondent is not otherwise legally required to perform. A violator's willingness to implement a SEP is one of several factors taken into consideration by EPA when determining an appropriate settlement penalty.
Criminal Enforcement Program focuses investigative resources on cases that involve negligent, knowing or willful violations of federal environmental law. Generally speaking, knowing violations are those that are deliberate and not the product of accident or mistake. Knowledge of the specific statutes or regulations that prohibit the wrongful conduct is not required. When a violator is aware that the wrongful conduct is prohibited by law, the violation is said to be "willful."
Some of the more significant case law relating to criminal CWA violations are as follows.
In US v Brittain, 931 F 2d1413 (10th Cir 1991) defendant was convicted in the United States District Court for the Western District of Oklahoma, Layn R. Phillips, J., of falsely reporting material fact to government agency, and two misdemeanor counts of discharging pollutants into waters of the United States, and he appealed. The Court of Appeals, Baldock, Circuit Judge, held that false statements made at direction of city public utilities director regarding wastewater treatment plant's pollution discharge monitoring reports had tendency to influence or were capable of influencing EPA enforcement action and were “material.”
In US v Iverson, 162 F 3d 1015 (9th Cir. 1998), following jury trial, defendant was convicted in the United States District Court for the Western District of Washington, Judge, of violating federal water pollution law, as embodied in the Clean Water Act (CWA), and state and local law, and of conspiring to violate such laws. Defendant appealed. The Court of Appeals, Circuit Judge, held that: (1) both state and municipal code prohibited discharges of hauled or trucked industrial waste, regardless of effect of those discharges on water; (2) statutes of conviction were not vague; (3) as matter of first impression, person is “responsible corporate officer” under CWA if person has authority to exercise control over corporation's activity that is causing discharges; (4) rule of lenity did not apply; (5) jury instructions were adequate; and (6) evidence of prior bad acts was admissible.
In US v. Park, 95 S. Ct 1903 (1975) defendant, the president of a large national food store chain, was convicted in United States District Court for the District of Maryland, of causing adulteration of food which had traveled in interstate commerce and which was held for sale, and he appealed. The Court of Appeals, reversed, and certiorari was granted, The United States Supreme Court, Mr. Chief Justice Burger, held, inter alia, that the trial court's instructions adequately focused on the issue of defendant's authority respecting the conditions that formed the basis of the alleged violations, fairly advising the jury that to find guilt it must find that defendant ‘had a responsible relation to the situation’ and that by virtue of his position defendant had authority and responsibility to deal with such conditions.
In US v. Weitzenhoff, 35 F 3d 1275 (9th Cir. 1993),Weitzenhoff was the manager and Mariani the assistant manager of the East Honolulu Community Services Sewage Treatment Plant (“the plant”), located not far from Sandy Beach, a popular swimming and surfing beach on Oahu. The plant is designed to treat some 4 million gallons of residential wastewater each day by removing the solids and other harmful pollutants from the sewage so that the resulting effluent can be safely discharged into the ocean. The plant operates under a permit issued pursuant to the National Pollution Discharge Elimination System (“NPDES”), which established the limits on the Total Suspended Solids (“TSS”) and Biochemical Oxygen Demand (“BOD”)-indicators of the solid and organic matter, respectively, in the effluent discharged at Sandy Beach. During the period in question, the permit limited the discharge of both the TSS and BOD to an average of 976 pounds per day over a 30-day period. It also imposed monitoring and sampling requirements on the plant's management.
The sewage treatment process that was overseen by Weitzenhoff and Mariani began with the removal of large inorganic items such as rags and coffee grounds from the incoming wastewater as it flowed through metal screens and a grit chamber at the head of the plant. The wastewater then entered large tanks known as primary clarifiers, where a portion of the organic solids settled to the bottom of the tanks. The solid material which settled in the primary clarifiers, known as primary sludge, was pumped to separate tanks, known as anaerobic digesters, to be further processed. Those solids that did not settle continued on to aeration basins, which contained microorganisms to feed on and remove the solids and other organic pollutants in the waste stream.
From the aeration basins the mixture flowed into final clarifiers, where the microorganisms settled out, producing a mixture that sank to the bottom of the clarifiers called activated sludge. The clarified stream then passed through a chlorine contact chamber, where the plant's sampling apparatus was, and emptied into the plant's outfall, a long underground pipe which discharged the plant's effluent into the ocean through diffusers 1,100 to 1,400 feet from shore.
Meanwhile, the activated sludge that had settled in the final clarifiers was pumped from the bottom of the clarifiers. A certain portion was returned to the aeration basins, while the remainder, known as waste activated sludge (“WAS”), was pumped to WAS holding tanks. From the holding tanks, the WAS could either be returned to other phases of the treatment process or hauled away to a different sewage treatment facility.
From March 1987 through March 1988, the excess WAS generated by the plant was *1528 hauled away to another treatment plant, the Sand Island Facility. In March 1988, certain improvements were made to the East Honolulu plant and the hauling was discontinued. Within a few weeks, however, the plant began experiencing a buildup of excess WAS. Rather than have the excess WAS hauled away as before, however, Weitzenhoff and Mariani instructed two employees at the plant to dispose of it on a regular basis by pumping it from the storage tanks directly into the outfall, that is, directly into the ocean. The WAS thereby bypassed the plant's effluent sampler so that the samples taken and reported to Hawaii's Department of Health (“DOH”) and the EPA did not reflect its discharge.
The evidence produced by the government at trial showed that WAS was discharged directly into the ocean from the plant on about 40 separate occasions from April 1988 to June 1989, resulting in some 436,000 pounds of pollutant solids being discharged into the ocean, and that the discharges violated the plant's 30-day average effluent limit under the permit for most of the months during which they occurred. Most of the WAS discharges occurred during the night, and none was reported to the DOH or EPA. DOH inspectors contacted the plant on several occasions in 1988 in response to complaints by lifeguards at Sandy Beach that sewage was being emitted from the outfall, but Weitzenhoff and Mariani repeatedly denied that there was any problem at the plant. In one letter responding to a DOH inquiry in October 1988, Mariani stated that “the debris that was reported could not have been from the East Honolulu Wastewater Treatment facility, as our records of effluent quality up to this time will substantiate.” (U.S. Excerpts of Record (“U.S.E.R.”) at 37.) One of the plant employees who participated in the dumping operation testified that Weitzenhoff instructed him not to say anything about the discharges, because if they all stuck together and did not reveal anything, “they [couldn't] do anything to us.”
Following an FBI investigation, Weitzenhoff and Mariani were charged in a thirty-one-count indictment with conspiracy and substantive violations of the Clean Water Act (“CWA”), at trial, Weitzenhoff and Mariani admitted having authorized the discharges, but claimed that their actions were justified under their interpretation of the NPDES permit. The jury found them guilty of six of the thirty-one counts.
In Conn. Coastal Fishermen’s Association v. Remington Arms Co., Inc. 989 F 2d 1305 (2nd Cir. 1993, suit was brought against owners and operators of trap and skeet shoot club alleging violations of Clean Water Act and Resource Conservation and Recovery Act (RCRA). On cross motions for summary judgment, the United States District Court for the District of Connecticut, Chief Judge, ranted the motions in part and denied the motions in part, and appeal was taken. The Court of Appeals, Circuit Judge, held that: (1) plaintiff's mere belief that gun club might discharge lead shot and clay target debris again into Long Island Sound was not sufficient to meet the in violation requirement to state cause of action under the Clean Water Act; (2) the broader statutory definition of solid waste applies to citizen suits brought to abate imminent hazard to health or environment under the Resource Conservation and Recovery Act, rather than the narrower regulatory definition of solid waste; (3) plaintiff failed to state cause of action that the owners and operators operated a hazardous waste storage facility or disposal facility without a permit in violation of RCRA; and (4) lead shot and clay target debris was hazardous solid waste subject to RCRA remediation and regulation.
In US v. Ahmad, 101 F3d 386 (5th Cir. 1996), defendant was convicted in the United States District Court, Southern District of Texas, of criminal violations of Clean Water Act (CWA), particularly, knowingly discharging pollutant from point source into navigable water of United States without permit, and knowingly operating source in violation of pretreatment standard. Defendant appealed. The Court of Appeals, Circuit Judge, held that: (1) with exception of purely jurisdictional elements, mens rea of knowledge applied to each element of offenses; (2) jury instructions did not adequately convey to jury that defendant had to have known that what he was discharging was gasoline in order for jury to find him guilty; and (3) testimony of defense witnesses offered to show that defendant started pump, then left premises shortly thereafter, was improperly excluded.
In US v. Borowski, 977 F 2d 27 (1st Cir. 1992) the government prosecuted owner of company which operated manufacturing facility producing optical mirrors for use in aerospace guidance and sighting systems under the Clean Water Act provision for knowingly violating pretreatment standards for industrial waste discharges. Following a jury trial, the owner and the manufacturer were convicted by the United States District Court for the District of Massachusetts, after the court had denied a motion to dismiss. Defendants appealed. The Court of Appeals, Hornby, District Judge, sitting by designation, held that prosecution for knowing endangerment under the Clean Water Act cannot be premised upon danger that occurs before pollutant reaches publicly owned sewer or treatment works, and, thus, the provision did not apply when industrial employees who handled the pollutants on premises from which the discharge originated were exposed.