THE CLEAN WATER ACT CUYAHOGA RIVER, OHIO

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THE CLEAN WATER ACT CUYAHOGA RIVER, OHIO 1969
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CLEAN AIR ACT v CLEAN WATER ACT

• SIMILARITIES
• BIG FEDERAL STATUTES ADOPTED EARLY 70S
• RESPONSE TO INEFFECTIVE STATE LAWS
• STATES HAVE KEY ROLE IN IMPLEMENTATION
• DIVERSITY OF POLLUTANTS
• DISTINCTIONS AFFECTING STRINGENCY
• EXISTING v NEW SOURCES
• CONVENTIONAL POLLUTANTS v TOXICS
• DIFFERENCES
• CWA IS LARGELY TECHNOLOGY-BASED CAA IS LARGELY
  HEALTH-BASED (BUT DIFFERENCES HAVE DIMINISHED)
• KEY DISTINCTION IN CWA BETWEEN POINT SOURCES AND
  NONPOINT SOURCES

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POINT SOURCES OVERVIEW 1972 AMENDMENTS TO
FEDERAL WATER POLLUTION CONTROL ACT

• ALL POINT SOURCE DISCHARGES UNLAWFUL EXCEPT BY
  PERMIT. 301
• NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
  (NPDES) PERMITS. 402
• EPA ADMINISTERS OR DELEGATES TO STATES
• PERMITS MUST INCORPORATE EFFLUENT LIMITS

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POINT SOURCES OVERVIEW 1972 AMENDMENTS,
CONTDEFFLUENT LIMITS

• FOR EXISTING SOURCES EFFLUENT LIMITS MUST
  REQUIRE
• BEST PRACTICABLE TECHNOLOGY CURRENTLY AVAILABLE
  (BPT)
• AVERAGE OF THE BEST
• REQUIRES COST-BENEFIT ANALYSIS
• FOR NEW SOURCES MUST REQUIRE
• BEST DEMONSTRATED AVAILABLE TECHNOLOGY (BDAT)
• MOST STRINGENT JUST CONSIDER COSTS TO DETERMINE
  IF REASONABLE FOR NEW SOURCES

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POINT SOURCES OVERVIEW 1977 AMENDMENTSCREATED
POLLUTANT CLASSIFICATIONS

• TOXICS
• CAUSE DEATH, DISEASE, CANCER, GENETIC MUTATIONS
  E.G. MERCURY PCBS
• INITIAL 126 PRIORITY POLLUTANTS LISTED BY
  CONGRESS
• CONVENTIONAL
• OXYGEN DEPLETING SUBSTANCES, SEDIMENT, NUTRIENTS,
  PH POLLUTANTS TYPICAL OF MUNICIPAL SEWAGE
  (BOD, FECAL COLI FORM BACTERIA, OIL GREASE)
• NONCONVENTIONAL
• POLLUTANTS NOT LISTED AS CONVENTIONAL OR TOXIC
• INTERMEDIATE ENVIRONMENTAL CONCERN
• E.G. TOTAL ORGANIC CARBON, CHEMICAL OXYGEN DEMAND
  (COD), PHOSPHOROUS

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POINT SOURCES OVERVIEW 1977 AMENDMENTS,
CONTDREQUIRED EFFLUENT LIMITS BY POLLUTANT CLASS

• CONVENTIONAL POLLUTANTS
• BEST CONVENTIONAL POLLUTANT CONTROL TECH (BCT)
• MORE STRINGENT THAN BPT, BUT LESS STRINGENT THAN
  BAT SINCE REQUIRES COST-BENEFIT ANALYSIS
• COMPLIANCE DEADLINES WERE AFTER BPT DEADLINES
• TOXICS AND NONCONVENTIONAL POLLUTANTS
• BEST AVAILABLE TECHNOLOGY ECONOMICALLY ACHIEVABLE
  (BAT)
• MORE STRINGENT THAN BCT
• MAY MATCH SINGLE BEST PERFORMER
• CONSIDERS COST, BUT NO COST-BENEFIT ANALYSIS
• NEW SOURCES
• BDAT
• MOST STRINGENT

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• HAL

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PERMIT REQUIREMENTNRDC v COSTLE (418)

• ISSUE MAY EPA EXEMPT CLASSES OF SOURCES FROM
  PERMIT REQUIREMENT?
• EPA CONCERNS
• WORKLOAD
• DIFFICULTY OF ESTABLISHING UNIFORM STANDARDS FOR
  AGRICULTURE
• HELD NO AUTHORITY TO EXEMPT
• RATIONALE
• LEG HISTORY
• NEED FOR UNIFORMITY TO AVOID COMPETITION FOR
  INDUSTRY
• UNIFORM LIMITATIONS CAN BE MODIFIED TO ACCOUNT
  FOR SPECIAL CHARACTERISTICS
• CAN ALSO USE GENERAL PERMITS

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WHAT IS A POINT SOURCE?SIERRA CLUB v. ABSTON
CONSTRUCTION (423)

• CITIZENS SUIT AGAINST MINING COMPANY
• SOURCES
• STRIP MINES CREATE ERODIBLE SPOIL PILES
• SEDIMENT BASINS CONSTRUCTED TO CATCH RUNOFF
  SOMETIMES OVERFLOW IN RAIN

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ABSTON CONSTRUCTION POINT SOURCE

• Any discernible, confined and discrete
  conveyance, including but not limited to any
  pipe, ditch, channel, tunnel, conduit, well,
  discrete fissure, container, rolling stock,
  concentrated animal feeding operation, or vessel
  or other floating craft, from which pollutants
  are or may be discharged. 502(14)

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ABSTON CONSTRUCTIONPOSITIONS HOLDING

• PARTIES POSITIONS
• SIERRA CLUB LOOK AT ORIGINAL SOURCES
• MINING CO EXCLUDE DISCHARGE THROUGH DITCHES
  CREATED BY NATURAL EROSION RAINFALL
• EPA (AMICUS) HAD INTERMEDIATE POSITION
• RUNOFF COLLECTED OR CHANNELED
• NOT EROSION ABSENT CHANGE
• E.G. SEDIMENT BASINS, EVEN THOUGH MATERIALS
  CARRIED AWAY BY RAINWATER GRAVITY
• COURT AGREES WITH EPA
• GRAVITY FLOW OF RAINWATER IS POINT SOURCE IF
  MINERS INITIALLY COLLECTED OR CHANNELED

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WHAT IS A POINT SOURCE?CONCERNED RESIDENTS v.
SOUTHVIEW FARM (427)

• CITIZENS SUIT PLUS STATE LAW CLAIMS NUISANCE,
  NEGLIGENCE TRESPASS
• FACTS
• LIQUID MANURE STORAGE LAGOONS
• APPLICATION TO LAND
• CENTER PIVOT IRRIGATION
• CONVENTIONAL SPREADING

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CONCERNED RESIDENTS v. SOUTHVIEW FARM STATUTES

• DISCHARGE OF ANY POLLUTANT IS UNLAWFUL. 301.
• EXCEPT AS IN COMPLIANCE WITH PERMIT ETC
• DISCHARGE IS ADDITION OF ANY POLLUTANT TO
  NAVIGABLE WATERS FROM ANY POINT SOURCE
• POINT SOURCE
• AGRICULTURAL STORMWATER DISCHARGES RETURN FLOWS
  EXEMPT
• BUT EXPLICITLY INCLUDES CAFOs

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CONCERNED RESIDENTS ,CONT ALLEGED VIOLATIONS
HOLDINGS

• JULY 13, 1989 LIQUID MANURE FLOWING THROUGH
  SWALE DRAIN INTO STREAM
• HELD SWALE PIPE ARE POINT SOURCES
• DEFENDANT NOT RELIEVED OF LIABILITY SIMPLY
  BECAUSE IT DOESNT CONSTRUCT CONVEYANCES SO LONG
  AS THEY ARE REASONABLY LIKELY TO BE MEANS OF
  DISCHARGE TO WATERS
• ALSO, MANURE SPREADING VEHICLES WERE POINT
  SOURCES

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CONCERNED RESIDENTS ,CONT ALLEGED VIOLATIONS,
CONTD

• SEPT 26, 1990 APRIL 15, 1991
• ISSUE EXEMPT AS AGRICULTURAL STORMWATER
  DISCHARGES?
• HELD NOT EXEMPT.
• NO ESCAPE FORM LIABILITY SIMPLY BECAUSE DISCHARGE
  OCCURS ON RAINY DAY.
• DISCHARGE PRIMARILY CAUSED BY OVER SATURATION OF
  FIELDS WITH MANURE RATHER THAN JUST RAIN
  SUFFICIENT MANURE SO THAT RUN-OFF NOT
  STORMWATER

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CONCERNED RESIDENTS ,CONT HOLDING RE EXEMPTION
FOR AG RETURN FLOWS

• EXEMPTION FOR RETURN FLOWS FROM IRRIGATED
  AGRICULTURE
• HELD CAFOs ARE NOT SUBJECT TO EXEMPTION
• CAFOs ARE EXPLICITLY STATED TO BE POINT SOURCES
• THIS IS A CAFO EVEN THOUGH CROPS GROWN ON PART OF
  LAND

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WHO ESTABLISHES EFFLUENT LIMITATIONS?DUPONT v.
TRAIN (434)ISSUES

• CHALLENGE TO EPA REGULATIONS SETTING
  INDUSTRY-WIDE EFFLUENT LIMITATIONS
• CLAIM EPA HAS NO POWER TO ADOPT INDUSTRY-WIDE
  EFFLUENT LIMITATIONS
• ISSUES
• WHO SETS THE EFFLUENT LIMITATIONS? HOW DO THOSE
  LIMITS RELATE TO THE NPDES PERMITS?
• ALSO, DO NEW SOURCE STANDARDS HAVE TO ALLOW
  VARIANCES?

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DUPONT v. TRAIN STATUTES

• 304 INFORMATION AND GUIDELINES
• EPA TO PUBLISH GUIDANCE FOR EFFLUENT LIMITATIONS
  ON EXISTING POINT SOURCES FOR THE PURPOSE OF
  ADOPTING OR REVISING EFFLUENT LIMITATIONS
• 301 EFFLUENT LIMITATIONS
• DISCHARGE UNLAWFUL UNLESS IT COMPLIES WITH
• 301 (BPT BY 77 BAT BY 83 FOR CLASSES
  CATEGORIES OF SOURCES REFERS TO 304 FOR
  DEFINITION OF BPT BAT),
• 306 (NEW SOURCE PERFORMANCE STANDARDS REQUIRING
  BDAT),
• 402 (EPA OR STATES ISSUE NPDES PERMITS THAT
  REQUIRE COMPLIANCE WITH 301 (EFFLUENT
  LIMITATIONS)

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DUPONT v. TRAIN FACTS

• DEADLINES TOO AMBITIOUS EPA DID NOT ADOPT 304
  GUIDELINES BEFORE DEFINING EFFLUENT LIMITATIONS
• EPA ADOPTED EFFLUENT LIMIT GUIDELINE
  REGULATIONS WITH NUMERICAL EFFLUENT LIMITS FOR
  INDUSTRY SUBCATEGORIES (bottom 436)
• COURT OF APPEAL EPA EFFLUENT LIMITS ONLY
  PRESUMPTIVELY APPLICABLE TO INDIVIDUAL PERMITS
  (top 437)

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DUPONT v. TRAIN THE INTERPRETATION PROBLEM

• SUPREME COURT
• Nowhere are we told who sets the 301 effluent
  limitations, or precisely how they relate to the
  304 guidelines and 402 permits. (middle 436)

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DUPONT v. TRAIN PARTIES POSITIONS

• EPA 301 AUTHORIZES REGULATIONS FOR CLASSES OF
  SOURCES
• INDUSTRY NO AUTHORITY FOR REGULATIONS JUST
  DESCRIPTION OF LIMITS TO BE SET PERMIT BY PERMIT
• EPA 304 GUIDELINES ARE AID TO ADOPTING 301
  REGULATIONS
• INDUSTRY GUIDE PERMIT ISSUER UNDER 402
• EPA 402 PERMITS INCORPORATE ACROSS THE BOARD
  EFFLUENT LIMITATIONS
• INDUSTRY LIMITS SET PLANT BY PLANT

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DUPONT v. TRAIN COURTS ANALYSIS

• LANGUAGE SUPPORTS EFFLUENT LIMITS BY CLASSES OF
  SOURCES
• 301 1983 EFFLUENT LIMITS FOR CATEGORIES AND
  CLASSES OF POINT SOURCES ARE TO BE ACHIEVED . .
  .
• 304 FOR THE PURPOSE OF ADOPTING OR REVISING
  EFFLUENT LIMITATIONS
• 509 JUDICIAL REVIEW SECTION ADMINISTRATORS
  ACTION . . . IN APPROVING . . . ANY EFFLUENT
  LIMITATION UNDER 301 . . .

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DUPONT HOLDINGS

• EPA HAS POWER UNDER 301, TO ISSUE BINDING
  REGULATIONS ESTABLISHING EFFLUENT LIMITATIONS FOR
  CATEGORIES AND CLASSES OF POINT SOURCES
• NO VARIANCE FOR NSPS
• RATIONALE
• STANDARDS IS ABSOLUTE
• UNLIKE 301(c) FOR BPT, NO VARIANCE LANGUAGE

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RELIEF PROVISIONS

• 301(n) FUNDAMENTALLY DIFFERENT FACTORS.
• EPA, WITH CONCURRENCE OF STATE, MAY ESTABLISH
  ALTERNATIVE EFFLUENT LIMIT FOR A FACILITY WITH
  FUNDAMENTALLY DIFFERENT FACTORS, OTHER THAN COST,
  THAN THOSE CONSIDERED IN ESTABLISHING THE BPT OR
  BCT LIMIT.
• 301(c) MODIFICATION OF TIMETABLE
• EPA MAY MODIFY A BAT REQUIREMENT FOR A POINT
  SOURCE IF
• SUCH MODIFIED REQUIREMENT REPRESENTS THE MAXIMUM
  USE OF TECHNOLOGY WITHIN THE ECONOMIC CAPABILITY
  OF THE OWNER OR OPERATOR AND
• WILL RESULT IN REASONABLE FURTHER PROGRESS TOWARD
  ELIMINATION OF THE DISCHARGE.
• NOTE UNLIKE 301(n), ALLOWS CONSIDERATION OF ECON
  IMPACTS, BUT DOES NOT ALLOW DIFFERENT ULTIMATE
  GOAL