20reauthorization.pdf

Reauthorization

of the

Clean

Water

Act

The

Dawn

of

Environmental

Legislation

under

the

Clinton

Administration

Craig

A.

Bromby

An

examination oftheapparentleadingbillbefore

the

United

StatesSenatetoreauthorizetheClean

Water

Act, entitled the

"Water

Pollution Prevention

and

Control

Act

of1993", or SenateBill 1114 (herein referred toas "S. 1114" orthe"Bill"),revealslegislation

consistentwith

many

oftheprovisionsoftheClean Air

Act

Amendments

of1990.

The

Clean Air

Act

Amend-ments appear

tobe viewed,atleastbytheauthors ofS.

1114,Senators

Baucus

(D-MT)

and Chafee

(R-RI),asa

precedentfora

number

of approachestoenvironmental legislation.

These

precedents include an extremely

de-tailedpermittingprogram, concentration

on

the elimi-nation oftoxicconstituentsofdischargesoremissions, pollution prevention,

and

a schedule of permit fees intended toshift the

burden

offundingtheregulatory

program

tothe regulated

community

and away from

the taxpayer.

S. 1114

would impose

on

dischargerstosurfacewaters (andindirect dischargers to publicly

owned

treatment works)

many

requirements to

which

permittees under

the National PollutantDischarge Elimination

System

(NPDES),

establishedin the Federal

Water

Pollution

Control

Act

amendments

of 1972,

were

neversubject.

These

new-generationregulatory devices include provi-sions forforcing technologicaladvance in wastewater treatment withoutnecessarilyconsidering the

economic

impact

on

the industry,

and

prohibitingtheuse of cer-tainsubstancesinanindustry'sprocesses, irrespectiveof the industry'sabilityto treat

and remove

thesubstances CraigA.

Bromby

receivedaJ.D.in

1975 from

the

Univer-sityof North Carolinaat

Chapel

Hill

and

iscurrentlyan

attorney with

Hunton

&

WilliamsinRaleigh,North Caro-lina,focusingprimarity

on

waterissues.

Bromby

previously ser\'edonthe legal staffofthe U.S.Environmental

Protec-tionAgency,Region

IV

inAtlanta

and

attheNorth Caro-lina

Department

of Natural Resources

and

Community

Development.

from

its effluent.

There

is a great deal of emphasis, directlyorindirectly,

on

pollutionprevention or source reductionof pollutants.

Such an emphasis

hasled tothe

perceptionin the regulated

community

that this billis far

more

intrusive intobusiness decisions

and

process

thanitsregulatory forebears.

The

Clean Air

Act

Amendments

were

a radical

depar-ture

from

the traditional

means

ofindustrialpollution control.

Many

ofits

more

controversial provisions are

now

being tried out in S. 1114, for water, the other

principalenvironmental

medium

forwastetransport.

What

are theprovisions

which

haveregulated

com-munity

observersstanding

up

totake notice?Thispiece

selects

and

summarizes

severalofthe

components

ofS. 1114

which

would

be sweepingintheir effect

on

regu-latedindustries. ItproceedsthroughS. 1114, describes

some

ofthose sections

which

will have an significant effect

on

regulatedindustries,

and

explains theimpactof the selected provisions.

Section

201

Technology-basedcontrolsfor pointsources:Since 1972, federal clean water legislation has

been

technology-forcing.

For

example,theClean

Water

Act

has required the

Environmental

Protection Adminstration's

(EPA)

adminstratortodetermine forcategories ofindustries the Best Available

Technology

(BAT)

economically

achievable to treat wastewater discharged by plants within the industrial category.

EPA

has

promulgated

these technology-basedeffluent guidelinesby

examin-ingwastewater treatment technologyinuse inthe

bet-ter-performing plants within the industry,

and

deter-mining

how much

pollution

would

be expected

on

a

production-unitbasisifthattechnology

were

used.

For

instance,anindustrial

BAT

guidelinemightbeexpressed

were

discharging7.0

pounds

ofthe pollutant foreach

10,000widgets it produced,it

would

be required, bya

statutorily-imposed date, to

improve

its wastewater treatmenttoachieve5.0pounds/10,000widgetsby retrof-ittingtheappropriatetechnology. In

making

its deter-minations,

EPA

was

requiredtoassessthe

economic

ef-fectsofcompellingthe technological advance,

and would

not, forinstance,useasthe basis of

BAT

acuttingedge technology

which

was

inuse onlyinpilotscale

and had

notyet

been

installed inacompetitiveplant.

Other

tech-nology-forcing provisionsapplied tothe effluent stan-dardsfor

new

sources.Inpromulgatingthese standards,

EPA

assumed

thatincorporatingintothedesignof

new

plants state-of-the-arttechnology

was

more

reasonable than attempting to

impose

that technology

on

older, existing plants.

Another

typeof technology-based

limi-tation

was

the"pretreatmentstandard",

which

required indirectdischargers to

meet

certaintechnological was-tewater treatment

minimums

before they sent their wastewatertopublicly-owned treatmentworks

(POTWs)

fortreatment priortodischarge to the surface waters.

There were

pretreatment standards

promulgated

for existingsources

and

new

sources.

Section 201 ofthebilldirectsthe

EPA

toissue

regu-lations,"effluent guidelines",

and

"pretreatment stan-dards", specifying"best availabletechnology

economi-cally achievable".

The

proposed

amendments

would

further ratchet

down

technology-basedcontrolsby

re-quiring

EPA

toestablish effluent guidelines,

new

source performancestandards,and pretreatmentstandardsthat:

•reflectsource-reductiontechniques,includingchanges inproductionprocesses,products,

and raw

materials that reduce, avoid, or eliminate the generation of toxic

and

hazardous byproducts;

require elimination of discharges

where

technologi-cally

and

economicallyfeasible;

•requireelimination ofreleasestoother media,

where

technologically

and

economically feasible;

and

prohibit use oftechnologies that

EPA

determineswill have an unacceptable adverse impact

on

other

envi-ronmental

media,suchasgroundwater.

Itshouldbe notedthat,indeterminingtechnological

and

economic

achievability,the

EPA

may

considersuch factors ascosts of achieving the limitationor

prohibi-tion,age of

equipment and

facilitiesinvolved, processes

employed,

and

engineeringaspectsoftheapplication of control techniques

and

process changes, but it is not

required.

Under

the present Clean

Water

Act,

and

its predecessors,consideration ofthesefactors

were

man-datory.AlsodeletedbyS. 1114istherequirementthat

EPA

considernon-waterqualityimpacts(includingenergy

impacts) of technology-based requirements.

Finally,S. 1114, using aconcept

borrowed from

the

Clean Air

Act

Amendments

of1990, requires

EPA

to

assess fees

on

direct

and

indirect (those pretreating priortodischargetoa

POTW)

dischargersfeestooffset

the costof

development

ofeffluent guidelines

and

pre-treatmentstandards. Dischargers

would

be assessed a

"proportionalshare" oftheestimatedcost.

The

basisfor determiningindividual proportionsisnotdictated but promises to be

among

the

more

vigorously contested rulemakingexercisesthe

EPA

and

statesmightface in

implementing

the provisionsofS. 1114.

Section

202

Sedimentstandards,antidegradation,

and

mixingzones:

The

Clean

Water Act imposed on

dischargers certain

technology-based effluent limitations

and

standards through the device of the

NPDES

permit. It also re-quiredstatestoadopt instream waterqualitystandards forallsurface waters.

Each

state

had

toinventoryallits surface water bodies, determine the best uses of the water,

and

classifythe

waterbody

accordingly.

The

mini-mal

criterion for waters

was

that the quality in the

stream had to protectaquaticlife.

That

is,even ifthe present quality

made

the stream unfit fora balanced,

indigenouspopulation of aquaticorganisms,it

had

tobe classified forthat use nevertheless.

Most

states

deter-mined

several classes of waters ranging, for instance,

from

a defaultclasstoaclasswithqualityhigh

enough

to be used for drinking water supply

and

body-contact

recreation. In

North

Carolina,thisisClass"C", withthe uses of aquatic life propagation

and

survival, fishing,

wildlife,secondaryrecreation,

and

agriculture.

The

water

qualitystandards

were

designedtoprotect

and enhance

theclassified usesofthewaterbodies. So,forinstance, the quality standards applicable to a drinking-water

supply

would

differ

somewhat

fromadefault-classstream

which

was

notexpectedtobe usedasasource of drinking water ora

swamp, which

would

not,fornatural reasons,

have

among

its"uses" drinkingwater.

Once

a state

adopted

water-quality classifications

and

standards,they

were

submittedtothe Administra-torof

EPA. The

Administratorreviewedthe submittal

todetermine

whether

thestate'sproposalsatisfied the objectives of the Clean

Water

Act. Ifit did not, the

Administrator

would

object

and

thestate

would

havea certainperiod oftimetorespond withrevised classifica-tionsorstandards. Iftheresponse

was

notforthcoming or insufficient, the Administrator

was

empowered

to adoptstandards

and

classifications forthestate.

S. 1114

makes

instream"uses",previouslydesignated bystates for theirwaters, automatically applicable to

sediments,

which

were

notcovered bythe original Act. Obviously,

some

pollutantswillmigratedirectly to

sedi-ments

and

canhaveasignificantimpact

on

theaquatic

22

CAROLINA

PLANNING

difficult concept is determining the uses of sediment beyondhabitator feedstockforaquaticorganisms. Section

202

further authorizes the

EPA

toestablishcriteriafor sedimentquality

and

specifiesthatthosecriteria (aswell

as a host of other criteria for protection of

ground

waters, habitat, lakes,

and

other specificvalues) shall automatically

become

applicablenationwide

upon

their adoption,unless astateobjectswithin 120days.

The

EPA

also requires thatstatesadopt

"antidegra-dationstatements."

These

"statements"are regulations limiting or prohibiting the degradation,by permitted

discharges,of streams

which

haveahigher waterquality

than thestandards setbytheclassificationsapplied to

streams.

The

billalso includes a stringent

"anti-degra-dation"provisionthat,whilesimilarin

some

respectsto

EPA's

existingantidegradationrule,goes

much

farther. Specifically,the

amendment

would

(1)apply

antidegra-dationrestrictions toboth water

and

sediments,

and

(2)

require states to designate a broad range of watersas "outstandingnationalresource waters"

(ONRWs),

for

which

no

degradation ofany kind

would

bepermitted.

Equally important,thebillrequiresthe

EPA

toissue a mixing-zone policy that, at a

minimum,

prohibits

mixing zones in

ONRWs.

The

policy

must

prohibit

acute toxicity at any point in the zone, require any allowed area ofdilutiontobeinashapethatfacilitates monitoring,

and

require that the

zone

becalculated

on

an

assumption

of

minimum

streamflow.States

would

be requiredtoadoptamixing

zone

policy

no

lessstringent

thanthe nationalpolicy.

Section

203

Toxic pollutant phase-out:Toxicpollutantshave

been

handled ina

number

of ways

under

theexistingClean

Water

Act.

One

provision allows the

EPA

toadopttoxic

effluentstandards,

which

may

set an absolutelimit

on

the

amount

ofa particular toxicpollutant thatcan be discharged to a stream without regard to treatment technology, production,industry-type,etc.

Very

fewof thesestandards have

been

adopted,

and

most

pertain to persistent pesticides,

which

are

no

longer

commonly

used for agricultural purposes.

More

commonly,

an

effluentguideline, a

BAT

guideline, a

new

source

per-formance

standard, or other technology-based limita-tion, is developed to address the treatment of toxic substances discharges by a particular industry. States

havealso

promulgated

waterqualitystandardsfortoxic

substances.

Water

qualitystandards

form

a baselinefor any permitted dischargetoawaterbody. Ifaplant dis-charging a certain

mass

or concentration of a toxic substancein

compliance

withthe

BAT

guideline

would

neverthelessresult inan instream concentration ofthe

substancein excess of the waterqualitystandard, the discharger

would

belimitedto the

amount

of the sub-stance thatcouldbeassimilatedbythestream

and

still

staywithin thewaterquality standard.Thisis

known

as

a"waterqualitylimited" permit.

Section203

would

require the

EPA

topublish alistof highlytoxic,ortoxic

and

highlytioaccumulative pollut-ants that occur insurface waters predominantly as a

resultofdischarges.Dischargeoflistedpollutants

would

thenbeprohibitedwithin

one

year ofpublicationofthe list. Certainprovisions for

exemptions

by source cate-gory

and

extension of

compliance

periodsare provided.

Regulation of this type-absolute prohibitions,

irre-spectiveoftechnology

and economics-has

heretofore

been eschewed

by Congress.

The

proposalto

abandon

that

approach

is

one

reason

why

this provision is ex-tremely controversial.

Some

view this

means

of the

otherwise

more

benign concept ofpollutionprevention asunacceptablydraconian.

Section

204

Pretreatmentprograms:

The

most

significantportion ofthisprovisionisaproposaltoeliminate thedomestic

sewage

exclusion

under

the

Resource

Conservation

and

Recovery Act

(RCRA). The

pollutant

and

source

con-tributingsolid

and

dissolved materialindomestic sew-age

must

bein

compliance

withapretreatment standard orlocallimit.

For

areas

where none

exists,the

EPA

has

begun

the process of developing a pretreatment stan-dard;thesolidordissolved materialwill

be

considered tobeasolidwastesubject toregulation

under

RCRA.

Section

205

Pollutionprevention:Thisprovision requires the

EPA

to identify

no

fewer than twenty pollutants for

which

discharge reductions

would

benefit

human

health

and

theenvironment. Dischargers ofthese pollutants

would

be required to submit pollution-prevention plans de-signedtoreducedirect

and

indirectdischargesofthese

and

other pollutants. Plans

would

have to establish

goals, address water-use efficiency,

and

include onsite plans for goal attainment.

Annual

reports

would

be

required.These, together withthe pollutionprevention

plans prepared pursuant to this provision,

would

be

publicly available.

The

reports required

under

the

Emergency

Planning

and

Community

Right to

Know

Act,recordingthetotalhazardouspollutant "releases"

from

a facility, have resulted in headlines about the

"dirtiest"industrialfacilitiesthat

would

make

any

pub-licrelationsofficerquiver.Thisisanother

example

of a publicly availablereport thatcouldbe usedtothe

detri-ment

ofa plant's public image.

One

criticism ofthis

provisionisthatit

may

punish thosefacilities

which

have

done

the

most

toachievepollutant reductions voluntar-ilybecausethey

may

alreadyhave

done most

of

what

is technologically possible to reducepollutants in their plants. Thus, theirplans

may

lookless aggressive

and

Section

302

Comprehensive

watershed

management:

This provi-sion establishes a voluntary,

comprehensive

program

of watershed

management. While

it has

many

positive

features, this sectionenables the Clean

Water Act

to begin tointrudeinlocal land use planning.

The

provi-sionisnot

mandatory

on

thestates.

There

are,however, incentives forparticipationbystatesand oncethe

thresh-oldiscrossed,eachstate willhavetotake certain actions

to

implement

the

management

program-actions which

inescapablytake

on

adegree offederalcontrolor,atthe very least, influence.

Having

crossed this particular

Rubicon, the participatingstate will have engaged,

on

some

scale, ina

form

ofstatewidelandusecontrols.

The

impact

on North

Carolinaisunclear,however,as

much

has already

been

done

to address watershed

management. For

example, rules are already in place

concerning water supply watersheds.

The

General

As-sembly

directedthe

Environmental

Management

Com-mission

(EMC)

to

embark

on

a statewide

program

of water supplywatershed

management

and

protectionby,

among

otherthings,controlling

development

densityor

implementing

performance-based controls

on

storm-water runoff as alternatives to

development

density controlsor

some

combination

ofboth.Interestingly,the provision expressly identifying

development

density controlsasatoolforwatershedprotection

was

quietly

added

asan

amendment

tothelawinthe 1992session.

The

lawpreviouslyrequired "protection of surfacewater

supplies through

minimum

performance-based

water-supply watershed

management

requirements."

By

add-ingexpress references to

development

density controls, the

General

Assembly

vested the

EMC

withstatewide landuseplanningauthorityrivalled inscope only bythat exercisedbytheCoastalResources

Commission

under

theCoastal

Area

Management

Act.

The

EMC

responded bysetting forth a

wide

range ofland use

and

density

restrictions applicable in the watersheds draining to

fourclassificationsofwater supply watersheds, involv-ing

hundreds

ofwater supplies,

and

tens, ifnot hun-dreds,ofthousands ofacresinthe Stateof

North

Caro-lina.

The

local

governments

havingjurisdictioninthese

watersheds

were

required to adopt local water supply watershed protection ordinances

which

incorporated

the use

and

density restrictions as

minimum

require-ments.

There was

surprisinglylittle fanfareabout this unprecedentedincursion intolocallanduseplanning by

thestateenvironmentalagency.

The

Clean

Water Act

provisioninvitesintrusion into

heretoforelocallanduseplanningdecisionsbythestate environmental agencies, responding to a

mandate

in

federallegislation. Thiscouldwellbealandmark,or,if

you

will, watershed, event in the surrender of local

authorityinland use planning.

Section

303

Impaired waters: This provision requires states to submit listsof"impairedwaters." Impaired waters are defined as waters that cannot be expected to achieve water or sedimentqualitystandardsunlessthereis

fur-theractiontocontrolnonpoint sourcepollution.

Non-pointsourcepollutionis

comes from

sourcesotherthan

point sources.

A

pointsourceisa discrete

conveyance

or

channel.

The

classicpoint source is a pipe, but point

sourcescanbecanalsorchannels ofvarioustypes,

and

haveeven

been

construedtobebarrelsordumptrucks.

States

must

alsoidentifythewatershed of each impaired water

and

thesourceswithin thearea ofthewatershed thatcontributetotheimpairment.

Section

304

Nonpoint

source pollution control: States

would

be requiredbythisprovision tosubmita

nonpoint

source

pollution

management

program.

Plans willhave to include

"management

measures"

which

must

be

implemented

within three years of ap-proval,except that

management

measures

must be

im-plemented

"asexpeditiouslyas practicable" inthe

wa-tershedstoimpairedwaters.

This provision is another invitation for the wide-spread imposition ofstatewide land use

management

controls

and

couldleadtodirectfederalinvolvementin

landuse decisions.

The management

measures

would

be based

on

EPA

guidancereflectingthe "best available"

nonpointpollution controlpractices,technologies,

and

thelike.

The

BAT

management

measures

appear to replace best

management

practices

(BMPs).

States

would

havetodevelop

nonpoint

source pollu-tioncontrolprograms,

which

establishthelegal author-itynecessaryto

implement

management

measures.

Section

501

Permitfees:States

must

provideforan annual permit feeassessment

program under

this provision.

Fees

must

coveratleast60 percent ofthe costof ad-ministering the regulatory

programs under

the Clean

Water

Act.

The

costs tobe covered bythefeesinclude the costof

processing permits,enforcement, monitoring,

develop-ment

of standards, modellinganalysis

and

demonstra-tions,preparation

and maintenance

ofpublic

informa-tion systems,

and

evaluation of

approved

laboratory

performance.

Intheeventthestatefee

program

does not

meet

EPA

criteriaor the

EPA

is the permit issuer,the

EPA

may

24

CAROLINA

PLANNING

Section

502

Permit

program

modifications:Thisprovisionchanges

the

NPDES

program

ina

number

ofsignificantways.

Authority

isgrantedtomodify

NPDES

permitsduring their

term

toreflect

new

orrevised effluentguidelines

orstandards.

•EPA

isgivenauthority totakeover permits

which

have not

been renewed

bythe issuingstatewithin180days

ofexpirationoftheprevious permit.

•Consideration ofaquatic biological conditionsis

man-datedforpermitissuance decisions.

•EPA may

identify"sensitiveaquaticsystems"in consul-tation with the Fish

and

Wildlife Service

and

the

National

Marine

FisheriesService.

The

Fish

and

Wildlife Serviceorthe National

Marine

Fisheries Service

would

be required to review any

proposed

permitsfordischarge tosuchsystems. •Discharges to coastal or

ocean

waters, orto sensitive

aquatic systems

which would

"preventtheprotection

and

propagation ofa balanced population offish,

shellfish

and

wildlife"

would

beprohibited.

•The

EPA

would be

required to establish biological

monitoring methods, practices,

and

protocols

and

methods

for quantifying acute

and

chronic

whole

effluenttoxicity.

•NPDES

permits

would

be required to have

numeric

limitationsregarding

whole

effluenttoxicity.

•States

would

alsohavetoprovidefor judicialreviewof challenges topermits bythirdparties.

Section

503

Enforcement: This provision expands the types of

actions thatcan

be

taken

and

the

amounts

of penalties that

EPA

may

seek.

The

billalsoexpandstherightsofcitizenstoproceed

against permittees for past violations

where

there is

evidencethat a violationhas

been

repeated,apparently

irrespectiveofthe likelihoodoffurtherviolations. Federalcourts are

empowered

toorderthatall,ora

portionof,apenalty

imposed

inacitizen suit

be

usedfor

projectsto

enhance

the

waterbody

in

which

the violation occurred,

making

citizen suits

an

even

more

attractive

vehicleforenvironmentalistgroups.

The

billauthorizes federal courts toorderrestoration

ofnatural resources

damaged

ordestroyedbya

viola-tion,thecostofwhichislimitedbythe

maximum

amount

ofcivilpenalty assessable

under

the Act.

Pretreatment standardviolations are

made

expressly

enforceable by

EPA

or through citizen suits.

A

"field

citation"program, allowing designated

EPA

employees

toadministratively assess penaltiesof

up

to$25,000 per violation, is authorized. Dischargers

who

have

been

assessedcivilpenalties

on

threeoccasionswithin afive

yearperiod

may

be debarred

from

contractingwiththe federal

government

foranindefinite period.Finally,

an

increase is

proposed

in the

maximum

amount

ofcivil

penalties that

may

be

assessed administratively,

from

$125,000to$500,000.

Conclusion

The

Water

PollutionPrevention

and

Control

Act

of 1993isan imposing proposalthatwillalmostcertainly

be subject to intense debate

and

numerous

changes beforeitsadoption ortheadoption of

some

substitute.

However,

the billdoes set a tone for the direction in

which

Congress,orat leasttheauthors ofthebill,

seem

to be headed.

The

new

direction of water pollution control

seems

to be source reduction

and

pollution

preventionforpointsources

and

landusetype controls

aimed

at watershed

management

and

protection for

nonpoint

sources.

Each

approach

isrevolutionaryinthe

water pollution regulation field.

The

Clean

Air

Act

Amendments

have pointedthe

way

forthepointsource

typeofcontrol.Thisbillbreaks

new

ground

withrespect tofederal

and

stateinvolvementinheretoforelocalland