Environmental Law Notes Cont’d WATER POLLUTION CONTROL (I) Background and History a. Federal Water Pollution Control Act of 1972 i. Federal government regulates water waste streams from production. ii. b. Flannery Decree and 1977 Amendments i. Focus on Toxic Pollutants ii. Emphasis on technology-forcing effluent limits 1. End of the pipe standards based on type of discharger a. Types of Standards: i. Best Practicable Tech Currently Avail ii. Best Conventional Pollutant Control Tech iii. Best Available Technology Economically Available (for toxic pollutants) iv. New source Performance Standards 1. Anytime there is a new facility or installation which commenced after the promulgation of the final rule setting standards. v. Best Professional judgment (When no standard set yet). 1. Established by Permit writer. 2. Anti-Back sliding rule locks in BPJ regardless of subsequent categorical standards established in later rule making. You get what you settle for. b. The decription for each of these standards is translated wherever possible into numeric effluent limits. 2. Based on quality of receiving water 3. No person to discharge any pollutant to navigable waters except in compliance with the terms of a permit. (all waters) 4. VARAINCES a. Fundamentally Different Factors Test (CWA 301(n)) i. Application must be submitted within 180 days after guideline in question was established ii. Cannot be based on cost of controlling pollutants. b. Economic Incapability (CWA 301(c)) c. Generally not applicable for “priority” toxic pollutant i. Except Chemical Manufacturers Association v. NRDC d. Document proposed standard should not apply to your facility early in rule making. c. 1987 Amendments i. Expanded focus on toxics, emphasizing “receiving water” quality ii. Focus on stormwater and its impact on receiving water quality. d. How Standards are Set and reviewed i. States primarily responsible for developing water quality standards for their waters. ii. EPA reviews and approves state standards and control strategies iii. State required to review and update their standards every three years. iv. CWA 301 General Requirements: No Person can discharge any pollutant to navidable waters of the US from any point source except in compliance with permit. 1. Person = any discharger or its acting agents 2. Discharge = any addition of the pollutant to navigable waters from any point source 3. Point Source = broadly defined to include any “discrete conveyance” frm which pollutants may be discharges 4. navigable waters (of the US) = includes any surface water body with impacts or has relationship to interstate commerce (generally, not groundwater). v. CWA 302 Program: Permits EPA to set water quality – based limits where state fails to set standards to attain /maintain beneficial use vi. CWA 303(d) /Total Maximum Daily Load Program: Required EPA or delegated state to determine total capacity of a water body to assimilate a specific pollutant and set discharge individual discharges limits accordingly. vii. CWA 304(l) Individual Control Stratedies 1. Applies to Imparied Waters and Generally Requires States to: designate impaired waters. e. Permit Programs i. National Pollutant Discharge Elimination System (NPDES) and Pretreatment Permits 1. Direct to River is one standard 2. Direct to treatment facility different standard. 3. NPDES permit process a. Permit Application (fiole 180 days before commencing discharge or expiration of existing permit) i. Certification by responsible corporate officer ii. Liason with permit writer is essential b. Draft Permit and Comment Period i. Regional Boards c. Final Permit i. Normally issues for 5 year term. 4. CWA Permit Programs: Indirect through Pretreatment Program (S 307) a. Administered by publicly owned treatment works to regulate industrial users discharging effluent via sanitary sewers to their treatment systems b. No Industrial User may put stuff in the system that will pass through without being treated, interfere with treatment mechanisms, and biosolids management. i. Because if the above happened it may meet the definition of Hazardous Waste. c. 1987 CWA Amendments establish framework to regulate municipal and industrial stormwater discharges under NPDES Permit Program. d. Nov. 1990 EPA publishes regulations establishing application requirements for stormwater permits. e. Current program targets stormwater discharges i. Associated with Industrial Activity 1. Run off directly related to manufacturing processing or materials storage 2. Regulations define what type of facilities have “industrial activity” 3. If you have run off, goal is to eliminate any non-storm water contribution to the water. 4. Covered Facilities: (40 CFR Sec. 122.26(b)(14)). a. Facilities that do more than one activity are covered by this law if the majority of their income is derived from the covered activity. b. Essay Question: If the interpretation of a. above which was made in a comment in the rule making stage is effective law. ii. From certain construction activity (1 acres or more) iii. From municipal separate storm sewer systems. iv. MS4s = Municipal Separate Stormwater Sewer Systems 1. Applicability: Local Sewer systems in municipalities with populations a. Over 250k b. 100k-250k c. Less than 100K 2. Focus is on controlling unauthorized discharges to storm sewers a. No one can get a building permit until they can demonstrate a run off plan. b. Standard Urban Stormwater Management Plan f. CWA Program re: Oil and Hazardous Substance Spills i. Pre-Cercla 1. Clean Water Act Section: ?? ii. Prevention and Response Programs iii. Release and reporting iv. Definition: Owner or Operator of any nontranspoortaito related onshore and offshore facility that is: 1. Involved in producing…must have a plan. 2. Person in charge must make reports if there is a so much as a visible sheen within a 24 hour period. 3. Strict Liability for penalties, clean up costs, damages to natural resources. a. Defenses: i. Act of God ii. Act of War iii. Act of Third Party g. Current Status i. EPA general permits for AWIA stormwater discharges ii. Continues to regulate construction activity ii. CWA: Dredge and Fill (Wetlands) Program 1. Separate from the NPDES program CWA 404 prohibits any discharge or placement of material from point source into surface water except with permit issued by US Army Corps of Engineers. 2. “Waters” Includes adjacent wetlands defined as: a. “Those areas which are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions. 3. Covered Activities include any discharge or placement or dredged and fill materials a. Exempted activities include maintaining dams, dikes, constructing temporary farm, forest and mining roads, some agricultural activities. 4. Clean water act does not regulate ground water unless it is coming to the surface. 5. Riverside Bay View Case (read): a. Issue: Whether or not US Army Corps of Engineers can require people to get a permit… i. Court must choose when water ends and when land begins. ii. This is sort of an issue of proximate cause. b. Rule: c. Jurisdictional Rule. Is it appropriate for the court to regulate areas adjacent to wetlands that are not usually flooded. Chevron deference to agency interpretation. 6. Solid Waste Agency v. Swank Case: a. Rule: Significant Nexus Test.(to be considered a wetland) i. Significant Nexus between…(landowner activity and wetlands creation or maintenance???) b. Why did the court not defer to the agencies interpretation of the Act per Chevron deference? i. Because congressional intent was not clar (about 75% of the reason). ii. Agency went out of their scope of power and congresses power under the constitution. Here they pushed the statute to the outer limits of what is constitutional. iii. State and Federal Roles 1. 40 states have permitting authority 2. remaining states permitting administered by EPA 3. State administered programs may be more stringent 4. pre-treatment program admined at local level. 5. Some States (CA) have parallel state permit programs. 6. Scope of Federal Authority to Regulate Water Pollution – Per the supreme Court Welands Cases (Chapter 6 Part B.4 a. I.e. (test question), what is the policy space that the US Army Corps of Engineers has? (Know questions in book). i. Cases on point: ii. US v. Riverside Bayview Homes iii. Solid Waste Agency of North Cook County v. US Army Corps of Engineers 1. Hold: Migratory Birds do not make an area a wetland. 2. Reasoning: Ties in to Lopez and Morrison on theory there is no substantial impact that justifies reaching into state and private property that don’t have a significant connection to wetlands. 3. Commerce Clause affirmatively limits the clean water act. 4. Rule: Here, there was no Chevron deference because exceeded the limits of Congress’ constitutional power under commerce clause. iv. Rapanos v. US 1. Narrowed definition of waters of the US (narrowed Swank). 2. Pre-Rapanos, rule much broader. If wet seasonally, drains to a body of water, and/or it is the surface of a subsurface water stream??? 3. Rule: Only included relatively permanent bodies or streams of waters. Not intermittent or ephemeral channels. a. If can see it all year long it is clearly a stream bed, and b. has continuous surface connection to bodies of water. c. However, a set channel like LA river, even though largely dry, is clearly a channel. 4. Violating the clean water act is a criminal felony. iv. Regulation of Dischardes from Point Srouces 1. Defining CWA regulated “Point Sources” a. NRDC v. Costle i. Rule: If Corp of Engineers can exceed their authority, EPA can do the same thing. ii. EPA created a bunch of exceptions on the theory that it is better than licensing so many parties. iii. Environmental activists said EPA does not have authority to create exemptions. b. US v. Plaza Health Laboratories (Issue: what is a point source) i. Facts: Owner of the lab puts vials below the high tide line of the Hudson river. ii. Held: Human Beings are not point sources under the Act. 1. But dissent says, come on, the vials are the point source, and the human is responsible. That’s like saying a hose operator is not liable when his hose point source puts crap in the river. iii. Analysis: Ambiguities in the statute be resolved in the defendant’s favor. 1. Not toxic under RCRA, because not listed and not characterized. Viruses and bacteria are not listed. iv. c. Test Issue: Spraying from airplanes to kill west nile virus larvae, is it a point source? 2. Defining the “Addition of Any Pollutant” a. National Mining Association v. US army Corps of Engineers i. No Persons shal discharge any dredge or spoint into navigable waters of the US without a permit. ii. No Chevron Deference because it is clear on the statutes face. iii. Rule: With regards to fallback debris… iv. Old Rule: (P. 62). b. South Florida Water Management District v. Miccosukee Tribe i. Issue: Whether or not when they pump from one body to another in the same general system, do they need a permit for point source emission if they are adding any pollutants by sending one polluted stream to another (but in same system). ii. Argued: Moving water from one body to another has no net effect, and in the alternate they are all one body of navigable water. iii. Held: They are separate bodies of water and do need a permit. 3. Technology Based Effluent Limits a. Chemical Manufacturers v. NRDC v. Water Quality Based Controls 1. Water Quality Standards (know for test) 2. Impact on Permit Limits a. As Applied to Interstate Commerce i. Arkansas v. Oklahoma 1. Issue: Oklahoma down gradient from Arkansas effluent distribution. EPA has issued a permit to Arkansas. 2. Hold: Oklahoma can’t stop effluent discharge that is federally permitted. 3. Except, if there is an undue impact the court may overturn the Federal Agencies rule making. 4. b. As applied to state Water Quality Certification under CWA Sec. 401 i. PUD NO. 1 of Jefferson County v. Washington Dept of Ecology. 1. PUD licensed by FERC to build power plant. Had to re-route a river. Have a certain flow, and were slowing it down. 2. This impacted wildlife. State of Washington said would not give permit for dredging unless maintained decent flow to keep salmon spawning alive. 3. c. The Total Maximum Daily Load Requirement i. Pronsolino v. Nastri 1. Garcia river had been impaired by sediment. 2. Pronsolino Determined that Garcia river is impaired by sediment from Nastri development. 3. Held: Water impaired by nonmannmad sources. 4. Rule: Can impose on dischargers standards even if they are not the dominant contributors to water quality. vi. Permit Process (II) AIR POLLUTION CONTROL –CLEAN AIR ACT (CAA) 1970 i. Comprehensive measures to control outdoor air pollution ii. Nationwide standards and control measures iii. Program delegated to EPA. b. Other Environmental Laws Complement CAA c. Table of Contents i. Title I 1. National Ambient Air Quality Standards (NAAQS) a. Health Based approach rather than tech based. b. Focus: Mobile and Stationary Sources c. National emission standards for hazardous air pollutants. i. EPA sets and adjusts 1. 5 year review as to standards and list of pollutants 2. Economics and technical feasibility are generally not relevant. ii. States determine “health” of air quality control regions within their borders to determine whether, for each criteria pollutant: 1. If standard is met (i.e. Attainment) 2. If Standard no met (non-attainment) iii. State Implementation Plans 1. Unfunded federal mandate – state’s obligation to determine whether or not they meet the standards above. 2. Adopted after rex notice and public hearings 3. Reviewed for approval by EPA 4. Can be replaced by Federal Implementation Plans when EPA determines a. SIP inadequate b. Where states fail to develop approvable SIPs. c. Issue: What can EPA make states do? d. d. New Source Performance Standards for new and modified emission sources. i. Major facilities in areas meeting NAAQS are subjet to Prevention of Significant Deterioration (PSD) program. 1. New or modified major facilities must employ Best Available Control Technology 2. BACT ii. Facilities in areas designated non-attainment subject to more rigorous emission controls iii. Plant wide Applicability Limits = an alternative to New Source Review 2. The Problem of “Attainment” and PSD a. Different types of Attainent (1990 amend) i. Ozone non-attainment sub-classificaitons: extreme, severe, moderate. ii. If Moderate: 1. Reasonable further progress 2. Permits issued to require reasonable available control tech a. Smog checks. 3. Gasoline vapor recovery reqs 4. Mandotory vehicular inspection and maintenance 5. Offset requirement: Increase the emission offset requirements to 1.15 to 1 for new source review. iii. If Severe 1. Everything plus 2. 1.3 to 1 offset iv. Extreme 1. Everything above plus 2. 1.5 to 1 offset. 3. Major source defined as facility with 10. tons a year 4. Limitations on stationary source fuels that can be used. ii. Title II 1. Mobile Sources regulating Hazardous Air Pollutants iii. Title III 1. Hazardous Air Pollutants (III) 1977 Amendments a. ??? (IV) 1990 Amendments a. Revised deadlines for Non-Attainment areas b. Regulated sources and hazardous air pollutants c. Phased our Chloroflourocarbons d. Added provisions to control acid rain e. Expanded Mobile Source Programs i. Low Emissios Vehicles ii. Reformulated Gas