What prompted the 1972 Clean Water Act?

At which specific water pollution problems was it aimed?

• “Death” of 4 of 5 Great Lakes

• Cayuhoga River Fire

• Santa Barbara oil spill

Industrial discharges?

Municipal sewage treatment plant discharges?

Runoff?

WATER POLLUTION PROBLEMS/SOURCES

POLLUTANTS SOURCES

Conventional Industrial discharges

Non-conventional Municipal sewage

Toxic treatment (POTW)

discharges

Runoff

CWA SECTION 301(a):

Except as in compliance [various permitting provisions of the Act including Sections 402 and 404 of the Act] of this title, the discharge of any pollutant by any person shall be unlawful.

[Section 402: discharge permits; Section 404: wetland permits]

Who issues these permits?

CWA SECTION 402(a): NPDES Permits

(1) … the Administrator may, after opportunity for public hearing issue a permit for the discharge of any pollutant, or combination of pollutants … upon condition that such discharge will meet [the requirements of the Act].

(2) The Administrator shall prescribe conditions for such permits …, including conditions on data and information collection, reporting, and such other requirements as he deems appropriate.

CWA requires permitted industrial dischargers to comply with the following technology-based effluent standards, created by EPA, for individual industrial categories. These standards reflect:

CONVEN. NON-CONV.TOXIC

SOURCE POLL. POLL. POLL.

EXISTING BCT/BPT BAT BAT

NEW BAT BAT BAT

POTWs?

CWA Section 302: Permitting agency may impose water-quality based limitations in permit “whenever, in the judgment of the Administrator … discharges of pollutants from a point source or group of point sources, with the application of [technology-based] effluent limitations … would interfere with the attainment or maintenance of that water quality in a specific portion of the navigable waters which shall assure protection of public health …”

CWA Section 304: Specifies planning procedures to ensure that water quality based permit limits will be imposed on dischargers into impaired waters.

• TMDL program

Municipal Sewage Treatment Plant (POTW) Standards

Primary treatment = settling/filtering

Secondary treatment = biological

Tertiary treatment = chemical

Red = industrial discharger Blue = toxic release (air/water/land)

NRDC v. Costle (D.C. Cir. 1977)

To what EPA action is NRDC objecting here?

Why did EPA interpret its regulatory jurisdiction restrictively? Why wouldn’t they try to maximize their reach?

CWA SECTION 301(a):

Except as in compliance [various permitting provisions of the Act including Section 402s and 404 of the Act] of this title, the discharge of any pollutant by any person shall be unlawful.

DISCHARGE PROHIBITION

CWA Section 502:

 (12) The term ''discharge of a pollutant'' and the term ''discharge of pollutants'' each means (A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.

“Discharge” Definition

(14) The term ''point source'' means 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. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.

CWA Section 502:

“Point source” Definition

NRDC v. Costle (D.C. Cir. 1977)

To what EPA action is NRDC objecting here?

Why did EPA interpret its regulatory jurisdiction restrictively? Why wouldn’t they try to maximize their reach?

Why did NRDC challenge EPA’s action?

What did the court think of EPA’s rationale?

What is the difference between an exemption and a general permit?

NRDC v. Costle (D.C. Cir. 1977)

To what EPA action is NRDC objecting here?

Why did EPA interpret its regulatory jurisdiction restrictively? Why wouldn’t they try to maximize their reach?

Why did NRDC challenge EPA’s action?

What did the court think of EPA’s rationale?

What is the difference between an exemption and a general permit?

Note that exemptions benefited agriculture, mostly. What if rain causes channeled runoff from a farm pond to escape into creek?

Hydroelectric facility example.

CWA Section 502:

(6) The term ''pollutant'' means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water...

“Pollutant” Definition

U.S. v. Plaza Health Labs (2d Cir. 1993)

How did this defendant violate the CWA, according to the prosecutor?

What defenses did the defendant raise to liability?

CWA SECTION 301(a):

Except as in compliance [various permitting provisions of the Act including Section 402s and 404 of the Act] of this title, the discharge of any pollutant by any person shall be unlawful.

DISCHARGE PROHIBITION

CWA Section 502:

 (12) The term ''discharge of a pollutant'' and the term ''discharge of pollutants'' each means (A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.

“Discharge” Definition

(14) The term ''point source'' means 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. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.

CWA Section 502:

“Point source” Definition

U.S. v. Plaza Health Labs (2d Cir. 1993)

How did this defendant violate the CWA, according to the prosecutor?

What defenses did the defendant raise to liability?

With whom did the court side? Why?

What was the dissent’s position.

Do you agree with the majority or the dissent here?