THE CLEAN WATER ACT and SAFE DRINKING WATER ACT

August 1, 1969 Article in Time Magazine on the Cuyahoga River 1-4 “Some River! Chocolate-brown, oily, bubbling with subsurface gases, it oozes rather than flows. ‘Anyone who falls into the Cuyahoga does not drown,’ Cleveland's citizens joke grimly. ‘He decays’... “ “The Federal Water Pollution Control Administration dryly notes: ‘The lower Cuyahoga has no visible signs of life, not even low forms such as leeches and sludge worms that usually thrive on wastes.’ It is also-literally-a fire hazard.” Cuyahoga River, November 1952

Key Provision: CWA Section U.S.C. § 1311 Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344, the discharge of any pollutant by any person shall be unlawful. Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344, the discharge of any pollutant by any person shall be unlawful.

Section 301 Elements Section 301 prohibits the discharge of a pollutant by any person without a permit. Section 301 prohibits the discharge of a pollutant by any person without a permit. “Discharge of a pollutant” is defined in CWA Section 502(12) (33 U.S.C. §1362(12)) as “any addition of any pollutant to navigable waters from any point source.” “Discharge of a pollutant” is defined in CWA Section 502(12) (33 U.S.C. §1362(12)) as “any addition of any pollutant to navigable waters from any point source.” Key terms all defined broadly: Discharge, Pollutant, Navigable Waters, Point Source, Person. Key terms all defined broadly: Discharge, Pollutant, Navigable Waters, Point Source, Person.

Discharge “Adding a pollutant” is interpreted broadly by courts. “Adding a pollutant” is interpreted broadly by courts. Dubois v. USDA, 102 F.3d 1273 (1 st Cir 1996) - court concluded that water taken from a creek for use in snow-making equipment with excess water discharged to creek on other side of ridge constituted discharge of pollutants. Dubois v. USDA, 102 F.3d 1273 (1 st Cir 1996) - court concluded that water taken from a creek for use in snow-making equipment with excess water discharged to creek on other side of ridge constituted discharge of pollutants.

Sewage Spill

Pollutant Defined in CWA Section 502(6) to include dredged spoil, solid waste, sewage, chemical wastes, biological or radioactive materials, heat, or industrial, municipal or agricultural wastes. Defined in CWA Section 502(6) to include dredged spoil, solid waste, sewage, chemical wastes, biological or radioactive materials, heat, or industrial, municipal or agricultural wastes. Examples of pollutants – discharge of heat from an industrial plant. Discharge of produced water (water injected into a well to produce flow of oil). Discharge of acid mine drainage from an abandoned mine. Examples of pollutants – discharge of heat from an industrial plant. Discharge of produced water (water injected into a well to produce flow of oil). Discharge of acid mine drainage from an abandoned mine.

CSO Outfall

Floatable Controls

Construction Site Storm Water Runoff

Point Source Defined in Section 502(14) as any discernible, confined, and discrete conveyance from which pollutants may be discharged to waters. Includes Concentrated Animal Feeding Operation. Excludes agricultural storm water and return flows from irrigation. Defined in Section 502(14) as any discernible, confined, and discrete conveyance from which pollutants may be discharged to waters. Includes Concentrated Animal Feeding Operation. Excludes agricultural storm water and return flows from irrigation. Case law embraces broadest possible definition of any identifiable conveyance. Includes, e.g., culvert containing landfill leachate and spillway from a dam. Case law embraces broadest possible definition of any identifiable conveyance. Includes, e.g., culvert containing landfill leachate and spillway from a dam.

Manure Lagoon at Dairy Operation

Leakage From Lagoon

Navigable Waters Defined in Section 502(7) as “waters of the United States, including the territorial seas.” Defined in Section 502(7) as “waters of the United States, including the territorial seas.” “Navigable waters” has been construed expansively to cover waters that are not navigable in fact. “Navigable waters” has been construed expansively to cover waters that are not navigable in fact.

Person Defined broadly in Section 502(5) to include an individual, corporation, partnership, municipality, and state. Defined broadly in Section 502(5) to include an individual, corporation, partnership, municipality, and state.

Strict Liability Statute Liability under CWA section 309 is strict. Liability under CWA section 309 is strict. Good faith efforts to comply or impossibility are not defenses, but may be relevant in determining the appropriate penalty. Good faith efforts to comply or impossibility are not defenses, but may be relevant in determining the appropriate penalty.

Exceptions to Section National Pollutant Discharge Elimination System (“NPDES”) Permits National Pollutant Discharge Elimination System (“NPDES”) Permits. 404 – Wetlands. 404 – Wetlands.

402 NPDES Permits National Pollutant Discharge Elimination System - States with authorized programs prepare and issue permits. National Pollutant Discharge Elimination System - States with authorized programs prepare and issue permits. EPA reviews and may object to provisions in draft permit. EPA reviews and may object to provisions in draft permit. In event of conflict between state and federal programs: In event of conflict between state and federal programs: Section 402(i) (retain enforcement authority). Section 402(i) (retain enforcement authority).

Effect of NPDES Permit Shields permittee if it is in compliance. Shields permittee if it is in compliance. Violation of the CWA if defendant does not comply with any provision – reporting, monitoring, operation and maintenance as well as limits on discharges. Violation of the CWA if defendant does not comply with any provision – reporting, monitoring, operation and maintenance as well as limits on discharges. 5 years duration but can be administratively extended. 5 years duration but can be administratively extended.

Effect of NPDES Permit Permittee cannot challenge permit after it takes effect. Permittee cannot challenge permit after it takes effect. Must object and appeal specific provisions at time of issuance; all other provisions become effective. Must object and appeal specific provisions at time of issuance; all other provisions become effective. Can’t challenge permit provisions in later enforcement proceeding. Can’t challenge permit provisions in later enforcement proceeding.

WHO MUST OBTAIN NPDES PERMIT? Industrial Dischargers Industrial Dischargers “POTW” – publicly owned treatment works “POTW” – publicly owned treatment works Industrial and municipal storm water dischargers Industrial and municipal storm water dischargers Concentrated Animal Feeding Operations (CAFO) Concentrated Animal Feeding Operations (CAFO)

Permit Limits on Discharges Technology-based – usually limits on industrial discharges Technology-based – usually limits on industrial discharges Water quality based Water quality based Toxic effluent standards Toxic effluent standards

Technology Based Standards Statute sets forth different levels of control. Statute sets forth different levels of control. EPA surveys the industry and prepares “effluent guidelines” through regulation. EPA surveys the industry and prepares “effluent guidelines” through regulation. Permit writer reviews facility-specific information in permit application and establishes number in permit. Permit writer reviews facility-specific information in permit application and establishes number in permit.

POTW – Municipal treatment plants Section 301(b)(1)(B) requires effluent limitations for POTW be based upon secondary treatment. Section 301(b)(1)(B) requires effluent limitations for POTW be based upon secondary treatment. Pretreatment Program – under Section 307(b), businesses that send waste to POTW (“indirect dischargers”) must obtain an “Industrial User” permit from POTW that requires the business to “pretreat” its waste before discharge to the POTW. Pretreatment Program – under Section 307(b), businesses that send waste to POTW (“indirect dischargers”) must obtain an “Industrial User” permit from POTW that requires the business to “pretreat” its waste before discharge to the POTW.

Water Quality Standards Permittee must meet any more stringent limits necessary to meet state water quality standards. Permittee must meet any more stringent limits necessary to meet state water quality standards. WQS may be either numeric or narrative. WQS may be either numeric or narrative. Defined by designated uses: swimming, fishing, etc. Defined by designated uses: swimming, fishing, etc.

TMDLs Total Maximum Daily Load. Total Maximum Daily Load. For waters for which existing limits are not sufficient to attain state water quality standards, the state must submit a “TMDL.” For waters for which existing limits are not sufficient to attain state water quality standards, the state must submit a “TMDL.” Environmental groups are suing EPA to require states to perform these. Environmental groups are suing EPA to require states to perform these.

General Permits Examples: Storm water permits for construction and vessel general permit. Examples: Storm water permits for construction and vessel general permit. State issues a General Permit with requirements for certain activities. State issues a General Permit with requirements for certain activities. Permittee submits a Notice of Intent (NOI) as the application. Permittee submits a Notice of Intent (NOI) as the application.

Reporting Requirements CWA is premised on self-reporting which generally are party admissions in later enforcement. CWA is premised on self-reporting which generally are party admissions in later enforcement. Permits contain provisions based on 40 C.F.R. § 122 reporting requirements. Permits contain provisions based on 40 C.F.R. § 122 reporting requirements.

Permittee is required to conduct sampling and monitoring at specific locations and intervals. Permittee is required to conduct sampling and monitoring at specific locations and intervals. Direct dischargers must complete a Discharge Monitoring Report (“DMR”) at specified intervals. Direct dischargers must complete a Discharge Monitoring Report (“DMR”) at specified intervals. For non-compliance, permittee must provide 24-hour and 5-day reports. For non-compliance, permittee must provide 24-hour and 5-day reports.

Civil CWA Enforcement Administrative Administrative Judicial Judicial Citizens Citizens

Administrative Section 308 information-gathering authorities Section 308 information-gathering authorities 309(a) administrative order 309(a) administrative order 309(g) administrative penalty order 309(g) administrative penalty order

Judicial Enforcement 309(b) injunctive relief 309(b) injunctive relief Case specific compliance schedules as part of the remedy. Case specific compliance schedules as part of the remedy.

Civil Penalties 309(d) civil penalties 309(d) civil penalties “[The] court shall consider the seriousness of the violation(s), the economic benefit (if any) resulting from the violation, any history of such violations, any good faith efforts to comply…, the economic impact of the penalty on the violator, and such other matters as justice may require. “[The] court shall consider the seriousness of the violation(s), the economic benefit (if any) resulting from the violation, any history of such violations, any good faith efforts to comply…, the economic impact of the penalty on the violator, and such other matters as justice may require.

Emergency Powers Under Section 504 Under Section 504 If the Administrator has evidence that a pollution source If the Administrator has evidence that a pollution source Is presenting an imminent and substantial endangerment Is presenting an imminent and substantial endangerment To health or livelihood, such as shellfish marketing To health or livelihood, such as shellfish marketing May bring suit in federal district court to restrain any person causing or contributing to alleged pollution to stop the discharge. May bring suit in federal district court to restrain any person causing or contributing to alleged pollution to stop the discharge.

Citizen Suits Under Section 505, citizens may bring their own claims against Under Section 505, citizens may bring their own claims against Persons violating an effluent limit or standards or an EPA or state order; Persons violating an effluent limit or standards or an EPA or state order; EPA or state for failing to perform act or duty that is not discretionary. EPA or state for failing to perform act or duty that is not discretionary. Can include federal and state agencies. Can include federal and state agencies. Typically environmental groups Typically environmental groups 60 day notice provision 60 day notice provision “Diligent Prosecution” provision “Diligent Prosecution” provision

Section 404 of the Clean Water Act Regulates discharge of dredged or fill material into all jurisdictional waters, including wetlands. Regulates discharge of dredged or fill material into all jurisdictional waters, including wetlands. Includes fill for construction development, water resource management (dams, levees) and infrastructure (highways). Includes fill for construction development, water resource management (dams, levees) and infrastructure (highways). Requires a permit prior to discharge, with farming and forestry exemptions. Requires a permit prior to discharge, with farming and forestry exemptions.

Section 404 of the Clean Water Act Can’t permit if Can’t permit if There is a practical alternative There is a practical alternative Waters significantly degraded. Waters significantly degraded. Mitigation is part of the permit. Mitigation is part of the permit.

Section 404 of the Clean Water Act Section 309(a) allows for administrative compliance orders to stop illegal discharge activity and order removal of fill. Section 309(a) allows for administrative compliance orders to stop illegal discharge activity and order removal of fill. Section 309(g) allows for administrative penalties. Section 309(g) allows for administrative penalties. Sections 309(b) and (d) grant authority to take civil judicial actions seeking restoration and other injunctive relief and penalties. Sections 309(b) and (d) grant authority to take civil judicial actions seeking restoration and other injunctive relief and penalties.

CWA 311 and the Oil Pollution Act of 1990 (“OPA”) Different statutory scheme to address oil spills and pipeline spills. Different statutory scheme to address oil spills and pipeline spills. OPA both strengthened CWA 311 and created a free-standing statute. OPA both strengthened CWA 311 and created a free-standing statute.

Exxon Valdez Oil Spill

Section (b)(3) prohibits the discharge of oil and hazardous substances in such quantities as the President has determined may be harmful. 311(b)(3) prohibits the discharge of oil and hazardous substances in such quantities as the President has determined may be harmful. Oil: visible sheen or violation of water quality standards Oil: visible sheen or violation of water quality standards Hazardous substances: reportable quantities at 40 C.F.R. § 302 Hazardous substances: reportable quantities at 40 C.F.R. § 302

311(b) Liability and Penalties Discharge to navigable waters or onto adjoining shorelines. Discharge to navigable waters or onto adjoining shorelines. No point source requirement. No point source requirement. OPA increased penalties for such a discharge OPA increased penalties for such a discharge Per day amount Per day amount Up to $1000 per barrel Up to $1000 per barrel Up to $3000 per barrel for gross negligence. Up to $3000 per barrel for gross negligence.

Injunctive Relief and Cost Recovery for Oil Spills Both OPA and CWA 311 provide authority for clean-up Both OPA and CWA 311 provide authority for clean-up CWA 311(c) and (e) CWA 311(c) and (e) OPA 1002(a). OPA 1002(a). Both OPA and CWA 311 provide for cost recovery. Both OPA and CWA 311 provide for cost recovery. Injunctive relief – CWA 309 and CWA 311. Injunctive relief – CWA 309 and CWA 311.

Spill prevention CWA 311(j) increased emphasis on prevention and removal of oil spills. CWA 311(j) increased emphasis on prevention and removal of oil spills. Certain facilities are required to have a Spill Prevention, Control, and Countermeasure Plan and a Facility Response Plan (40 C.F.R. Part 112). Certain facilities are required to have a Spill Prevention, Control, and Countermeasure Plan and a Facility Response Plan (40 C.F.R. Part 112).

Safe Drinking Water Act 42 U.S.C. § 300f et seq. Enacted in 1974 in response to numerous outbreaks of illness from tap water contamination. Enacted in 1974 in response to numerous outbreaks of illness from tap water contamination. Purpose: to ensure that water supply systems serving the public meet minimum national standards to protect public health, and to protect underground sources of drinking water. Purpose: to ensure that water supply systems serving the public meet minimum national standards to protect public health, and to protect underground sources of drinking water. CDC found 500,000 reported cases of illness in the 1980's and 1990's attributable to more than 400 drinking water contamination incidents. In 1993, Cryptosporidium outbreak in Milwaukee caused thousands of illnesses and many deaths. CDC found 500,000 reported cases of illness in the 1980's and 1990's attributable to more than 400 drinking water contamination incidents. In 1993, Cryptosporidium outbreak in Milwaukee caused thousands of illnesses and many deaths.

Three Primary Enforcement-Related Programs Public Water Systems Public Water Systems Underground injection Underground injection Imminent and substantial Imminent and substantial endangerment endangerment

Public Water System Program Regulates Public Water Systems, defined in 42 U.S.C. § 300f as system that: Regulates Public Water Systems, defined in 42 U.S.C. § 300f as system that: (1)provides water to public (2)through pipes or other conveyances (3)for human consumption (4)with at least 15 service connections or regularly serves at least 25 people.

PWS Program Not a permit-based program. Not a permit-based program. EPA required to promulgate National Primary Drinking Water Regulations (40 CFR Parts 141, 142) for contaminants that Administrator determines may have adverse health impacts. EPA required to promulgate National Primary Drinking Water Regulations (40 CFR Parts 141, 142) for contaminants that Administrator determines may have adverse health impacts.

National Primary Drinking Water Regulations NPDWR establish: “Maximum Contaminant Level” (MCL) or treatment technology techniques. “Maximum Contaminant Level” (MCL) or treatment technology techniques. Maximum contaminant level goal at a level at which there are no known adverse health effects. Not a regulatory requirement. (40 CFR Subpart F). Maximum contaminant level goal at a level at which there are no known adverse health effects. Not a regulatory requirement. (40 CFR Subpart F). Compliance monitoring requirements for individual contaminants. Compliance monitoring requirements for individual contaminants.

Enforcement of Drinking Water Standards States, territories, and tribes may apply for primary enforcement responsibility for public water systems. (Wyoming is only State without primacy.) 42 U.S.C. § 300g-2. States, territories, and tribes may apply for primary enforcement responsibility for public water systems. (Wyoming is only State without primacy.) 42 U.S.C. § 300g-2. U.S. retains enforcement authority. Must provide notice of violation to State with primacy and PWS. If State has not commenced appropriate enforcement action within 30 days after notice, EPA may issue compliance order or commence civil action. 42 U.S.C. § 300g-3. U.S. retains enforcement authority. Must provide notice of violation to State with primacy and PWS. If State has not commenced appropriate enforcement action within 30 days after notice, EPA may issue compliance order or commence civil action. 42 U.S.C. § 300g-3.

Citizen Suit Under SDWA, citizens may bring own claims under 42 U.S.C. § 300j-8 against Under SDWA, citizens may bring own claims under 42 U.S.C. § 300j-8 against -Persons violating SDWA requirements -EPA for failure to perform a act or duty that is not discretionary.

Imminent and Substantial Endangerment Under Section 1431 EPA may take such action deemed necessary to protect health upon receipt of information that: Under Section 1431 EPA may take such action deemed necessary to protect health upon receipt of information that: (1) a contaminant is present in or likely to enter a PWS or underground water supply, (2) that may present an imminent and substantial endangerment to human health, and (3) State has not acted to protect health. 42 U.S.C. § 300i. § 300i. EPA may act where there is only a risk of harm to seek injunction. EPA may act where there is only a risk of harm to seek injunction.

Ocean Dumping Act Marine Protection, Research and Sanctuaries Act enacted in Marine Protection, Research and Sanctuaries Act enacted in Implements the London Convention governing ocean dumping. Implements the London Convention governing ocean dumping. Requires a permit prior to dumping. Requires a permit prior to dumping. Almost all dumping is from materials dredged to maintain shipping. Almost all dumping is from materials dredged to maintain shipping. Surveillance and enforcement resides with the Coast Guard. Surveillance and enforcement resides with the Coast Guard.