The Clean Water Act (“CWA”), 33 U.S.C. Sections 1251-1387, is the main federal statute that addresses water pollution in the United States. The objective of the statute is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Under the CWA, “it is the national goal that the discharge of pollutants into the Nation’s navigable waters be eliminated…” The CWA also seeks to attain the goals of “water quality which provides for the protection and propagation of fish, shellfish and wildlife and provides for recreation in and on the water” and “that the discharge of toxic pollutants in toxic amounts be prohibited.”
In order to achieve these goals, the CWA prohibits “the discharge of any pollutant by any person” except in compliance with the CWA’s permit requirements, effluent limitations, and other provisions. The discharge of any pollutant is defined to mean, in relevant part, “any addition of any pollutant to navigable waters from any point source.” “Navigable waters” is defined as “the waters of the United States, including the territorial seas.”
EPA regulations define the term ”waters of the United States” to include: (1) waters used in interstate commerce, including all waters subject to the tides; (2) interstate waters; (3) intrastate lakes, rivers, streams wetlands etc., (a) that are used by interstate travelers for recreation and other purposes, (b) that are sources of fish or shellfish sold in interstate commerce, or (c) that are used for industrial purposes by industries engaged in interstate commerce; (4) impoundments and tributaries of waters within these first three categories; and (5) wetlands adjacent to waters within these categories. EPA and the U.S. Army Corps of Engineers have interpreted the term “waters of the United States” broadly, including, for example, arroyos or creek beds that carry water on an infrequent or intermittent basis if they support wildlife or are hydrologically connected to an interstate watercourse or waters affecting commerce. Quivira Mining Co. v. EPA, 765 F.2d 126, 129 (10th Cir. 1985), cert. denied, U.S. 1055 (1986). But see Ricke v. Harken Exploration Co., 250 F. 3d 264, reh’g denied, 263 F.3d 167 (5th Cir. 2001)(intermittent water bodies not within CWA jurisdiction.
The U.S. Supreme Court has not supported such an expansive interpretation. In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) the U.S. Supreme Court invalidated a long-standing Corps of Engineers regulation that extended the acts dredge and fill permit program to intrastate waters used by migratory birds. In Rapanos v. United States, 547 U.S. 715 (2006), the Court considered whether the wetlands, which were near ditches or man-made drains that eventually emptied into traditional navigable waters, were “waters of the United States” under the CWA. One set of petitioners suffered civil and criminal penalties because they had deposited fill material without a permit into three wetlands. It was not clear whether these wetlands were connected to the drains and ditches were continuous or intermittent, or whether the drains and ditches contained continuous or occasional flows of water. The second set of petitioners was denied a permit to deposit fill material in a wetland where a man-made drainage ditch ran along one side, separated from the wetland by a largely or entirely impermeable berm that may have permitted occasional overflow to the ditch. The Court held that the CWA phrase “the waters of the United States” included only relatively permanent, standing or continuously flowing bodies of water “forming geographic features” described in ordinary parlance as streams, oceans, rivers, and lakes. The phrase did not include intermittent or ephemeral channels or channels that periodically provided drainage for rainfall.
“Pollutant” is defined in the CWA as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, cellar dirt and industrial, municipal and agricultural waste discharged into water. “Point source” is defined as “any discernable, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock…from which pollutants are or may be discharged” and covers bulldozers, dump trucks and tanker trucks.
A National Pollution Discharge Elimination System (“NPDES”) permit is required for any discharge of a pollutant from a point source to waters of the United States. This requirement implements the CWA’s ban on unauthorized discharges. An NPDES permit may either be issued by the United States Environmental Protection Agency (“EPA”) or by a state if the state has received permitting authority from EPA. There are 46 states with such authority. NPDES permit applications require detailed information about the facility and its discharges, including the contents of its effluent. The application must be signed by a responsible corporate officer.
The NPDES permit sets forth enforceable effluent limitations. All dischargers must meet treatment levels based upon technologically based standards deemed feasible in the discharger’s industry. Such standards have been developed for a whole range of industrial categories. Additional requirements are included where they are determined as necessary to achieve water quality goals for the body of water subject to the discharge. Permit limitations may be set forth as factor of mass, e.g., a number of pounds per day or per unit of production, a concentration limitation, e.g., a number of parts per million, or based upon visual observation, e.g., no visible sheen, foam or floating solids. Other limitations may require the permit holder to test for certain parameters, such as biological oxygen demand, limits on flow, pH range and temperature. Permits usually impose maximum limitations, such as a daily maximum, and monthly average limitations, such as the daily average level during the month. Note that an NPDES permit is not required for discharges directly into a public wastewater treatment system, known as a publicly owned treatment works (“POTW”), which is excluded from the definition of “waters of the United States”.
The CWA sets forth a two-pronged system for addressing industrial outflows from point sources into waters of the United States rather than POTWs. Under this system, existing sources have been given a timetable for achievement of water quality standards, treatment standards or schedules of compliance. In the meantime, they have been required to meet various interim standards, referenced under the CWA as best practicable control technology, best available technology economically achievable, and best conventional pollutant control technology. On the other hand, any new source must meet standards of performance promulgated by EPA applicable to sources in its industrial category which reflect “the greatest degree of effluent reduction …achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants.”
Industrial dischargers that discharge directly into POTWs rather than into the waters of the United States are subject to pretreatment standards for introduction of pollutants into treatment works. POTWs receive approximately 30 billion gallons per day of the nation’s outflows, or about 80 percent of the total. The pretreatment program establishes a three-part system for addressing discharges into POTWs.
The first part of the pretreatment program addresses the control of pollutants that pass through or interfere with treatment processes in POTWs. It applies to pollutants indirectly discharged into or transported by truck or rail or otherwise introduced into POTWs, to POTWs that receive wastewater from sources subject to pretreatment standards and any new or existing source subject to such pretreatment standards. It establishes a general prohibition against pollutants that cause pass through or interference. A pass-through is defined as a discharge that exits the POTW into waters of the United States that alone or in conjunction with discharges from other sources cause a violation of the POTW’s NPDES permit. Interference is defined as a discharge that, alone or in conjunction with discharges from other sources, inhibits or disrupts the POTW, its treatment processes or operations, or its sludge processes, use or disposal, and therefore is a cause of a violation of any requirement of the POTW’s NPDES permit or of the prevention of sewage sludge use or disposal in compliance with various federal statutes.
The second part of the pretreatment program establishes specific prohibitions against discharge into a POTW of pollutants that create a fire or explosion hazard, pollutants that will cause corrosive structural damage to the POTW, pollutants that will cause an obstruction to the flowing the POTW, oxygen demanding pollutants at a flow rate or concentration that will cause interference, heat in amounts that will inhibit biological activity in the POTW, petroleum and other oils, pollutants which result in the presence of toxic gases, vapors, or fumes within the POTW in a quantity that may cause acute worker health and safety problems, and any trucked or hauled pollutants, except at discharge points designated by the POTW. The third part of the pretreatment program establishes categorical effluent guidelines for over sixty industrial categories, including such disparate categories as dairy processors, electroplaters and landfills. For example, pretreatment standards are applicable to landfills under 40 C.F.R. 445.1, which applies to “discharges of wastewater from landfill units” and are specifically set forth at 40 C.F.R. 445.21. Among those are effluent limitations on certain specific pollutants, including ammonia, phenol and zinc enforcement. The Administrator may assess a civil penalty of up to $10,000 or as much as $125,000, depending on the nature of the violation. The Administrator is authorized to commence a civil action for appropriate relief, including temporary or permanent injunction, for any violation for which he is authorized to issue a compliance order. A court may also assess criminal penalties of between $2,500 and $25,000 per day of violation, and imprisonment for not more than one year, for negligent violations, and of not less than $5,000 nor more than $50,000 per day of violation, and imprisonment for not more than one year, for knowing violations.
Note that in the term that just ended, the U.S. Supreme Court, in Sackett v. EPA, 132 S. Ct. 1367 (2012), held that administrative compliance orders issued by EPA under Section 309 of the Clean Water Act, 33 U.S.SC. 1319.
The CWA also contains a citizen suit provision that allows citizens to bring actions under the CWA independent of any governmental action. In that regard, the CWA authorizes any person “having an interest which is or may be adversely affected” to commence a civil action against any person for violation of any effluent standard or limitation. Sixty-day notice of the suit must be given to the violator, EPA and the state in which the alleged violation occurs. The court has the authority to enforce such effluent standard or limitation or to order the Administrator to perform an act of duty, and to award civil penalties as are available in actions brought directly by EPA or the states. The court may also award costs and attorneys’ fees to the prevailing party.