Environmental Law Professor Robert Glicksman
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- Goals Primary
- Primary goal of CWA in reality.
- 33 U.S.C. § 1311(a)
- Discharge of Any Pollutant”/”Discharge of Pollutants”
- Point Source
- Non-Point Source
| § 7410(k)(3) – EPA may reject inadequate plans lacking a necessary element. EPA may accept adequate portions of a plan and reject inadequate portions; thus, EPA may reject wholly inadequate plans. Plan revisions do not satisfy CAA until EPA approves the entire plan.
May EPA demand that state revise an inadequate plan? Yes. § 7410(k)(5) (“Whenever the Administrator finds that the applicable implementation plan for any area is substantially inadequate to attain or maintain the relevant national ambient air quality standard . . . the Administrator shall require the State to revise the plan as necessary to correct such inadequacies.”). § 7410(a)(2)(H) – SIPs must provide for occasional revisions in light of evolving standards, newly developing problems, or EPA rejection. If a state refuses to revise plan, EPA may adopt a plan for it. § 7410(k)(3). Two scenarios in which this occurs: State submits no plan within required time. State submits a defective plan and has not revised it within required time. EPA may not force states to adopt particular emission controls. § 7410(k)(5) limits EPA authority actually. EPA may not require a state to revise its entire plan if only a small tweak would correct the inadequacy. Only the small tweak is necessary. Federalism Concerns – Court would not interpret 1990 Amendments as resulting in a dramatic power shift/reallocation of authority. Sierra Club v. EPA General Contents Attainment and nonattainment areas. SIP requirements for nonattainment areas; extension of deadlines for inadequate SIPs; states’ promises to cure missing requirements. Conditional approval of SIP. New Source Review. “In the context of 42 U.S.C.S. § 7410(k)(4), the purpose of the conditional approval provision is not to permit states more time to identify control measures, but rather to give the Environmental Protection Agency (EPA) the opportunity to determine whether a state implementation plan, although not approvable in its present form, can be made so by adopting specific EPA-required changes within the prescribed conditional period. Such a determination cannot reasonably be made unless the conditionally approved submittal contains something more than a mere promise to take appropriate but unidentified measures in the future. And that requires that the States complete the analyses necessary to identify appropriate measures before, rather than after, conditional approval is granted.” EPA cannot approve a plan if a state does not specify how specifically it will cure the deficiencies in its existing plan. DC was required to put some actual measures on the table. Empty promises are not sufficient. EPA was not authorized to grant conditional approval to plans that did nothing more than promise to do tomorrow what the CAA required today. New York v. Reilly General Contents Ban on lead-acid vehicle battery combustion. NSR – Standards of performance. Incineration of lead batteries did not amount to “the best system of emission reduction.” EPA needed to justify why it did not choose not to burn the batteries. Clean Water Act Introduction CWA is centerpiece of nation’s efforts to protect its waters. Other federal laws protecting water: Safe Drinking Water Act (SDWA) Resource Conservation and Recovery Act (RCRA) Oil Pollution Act of 1990 CERCLA Success & Failure Success of CWA – p. 546. Success of NPDES – p. 546. Despite success, much pollution remains, and waters remain unavailable for designated uses. See p. 546. Data on Quality of Nation’s Waters – See p. 547. Extremely limited. Collecting data is difficult for a number of reasons. Causes & Sources of Impairment – See pp. 547–48. Rivers/Streams Lakes/Reservoirs Bays/Estuaries Impacts of water pollution on public and environmental health. – See p. 548. Money & Costs – See p. 549. Total Reported Water Quality Needs - $ 298.1 billion Total Public and Private Spending on Water Pollution Control 1972–96 - $700 billion. Water pollution control appropriations in 2009 stimulus bill. Uncertainty in calculating costs and benefits of water pollution control. See pp. 549–50. Must address more than point source pollution in order to improve water quality. See p. 550. Water, National Security & Terrorism – See p. 550. Effects of Climate Change on Water – See p. 550. Five response action areas. Clean Water Act: Overview Goals Primary – “To restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). § 1251(a)(1)–(7) specify CWA goals. National – “It is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.” 33 U.S.C. § 1251(a)(1). Interim – “It is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983.” 33 U.S.C. § 1251(a)(2). Fishable & Swimmable Waters Goal – We want all bodies of water to support fishing and swimming. Primary goal of CWA in reality. “It is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited.” 33 U.S.C. § 1251(a)(3). Note that this means that some toxic pollutants may be discharged in non-toxic amounts. Enforced through technology-based standards, not ambient-quality-based standards. Structure 33 U.S.C. § 1362 – Definitions 33 U.S.C. § 1311(a) – “Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.” No Discharge General Rule – Central/primary operative provision of the CWA. “Discharge of Any Pollutant”/”Discharge of Pollutants” “(A) any addition of any pollutant to navigable waters from any point source, Requirements – See § 1362 for definitions. Addition Pollutant Navigable Waters 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.” 33 U.S.C. § 1362(12). “Person” – “An individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body.” 33 U.S.C. § 1362(5). Very expansive definition. Exceptions § 1342 – National Pollutant Discharge Elimination System (NPDES) Primary exception to the No Discharge Rule. Permitting Provision – Cannot pollute unless you have a permit. Technology-Based Standards Principle Approach Ambient, quality-based standards constitute a backup to the technology-based defenses of the CWA. Why do we need backup ambient-based controls? Serve as safety net. Protect water quality when every discharger is in compliance, but a large concentration of polluters in a small area nevertheless makes water unsafe. If technology is poor, then implementing it will not raise water quality. Ambient-based standards pick up the slack. Contrast with CAA – Technology-based standards constitute the main line of defense, unlike CAA, where ambient, harm-based standards are main line of defense. Example of Control – Limiting pollutants to X lbs. per day. Why does the CAA focus on ambient-based controls and the CWA focus on technology-based controls? Historical Accident – CAA was adopted before CWA. Ambient-based controls were all that were on Congress’ mind when the CAA was adopted. By the time the CWA was adopted, Congress’ thinking had evolved. Deficiencies in ambient-based controls led to adoption of technology-based controls. Only one successful prosecution for a violation of the 1948 Federal Water Pollution Control Act occurred between 1948 and 1972 under the ambient-based standards. Not everyone was in compliance. Cuyahoga River caught on fire. Why did the 1948 law fail? Procedure – Time-intensive; high burden of proof on government. Substantive – Difficult to trace water pollution back to a particular polluter. Advantages of Technology-Based Standards No need to trace pollutants back to a particular discharger. Regulation occurs up front—at the technology-implementation stage. No need to prove an excessive amount of pollutants in water. No need to inquire as to impact of pollutants. Easier to implement than ambient-based controls. Disadvantages of Technology-Based Standards There may be many dischargers in one area. Poor technology may not adequately protect water quality. Economic – Overkill Scenario: potentially economically inefficient because technology-based standards may require regulation above and beyond that necessary to achieve desired water quality. May impose regulation that achieves no discernable environmental benefit. Regulated entities call this “treatment for treatment’s sake.” May disincentivize research into better technology. Industry is not going to invest in R&D because once new technology is adopted, it will require industry to achieve a higher level of compliance. It is like shooting yourself in the foot. Counterarguments May give developer of new technology lead-time over competitors. Technology may become cheaper with time. Companies developing new pollution controls may receive an economic boost. Design-Specification Standards v. Performance Standards Design-Specification – EPA requires a certain technology, and if industry does not implement it, industry will be in noncompliance. Effectively, EPA tells industry what to do. Rare. Performance – EPA requires industry to limit its emissions of, e.g., sulfur dioxide, to 10 lbs. per day. EPA does not care how industry does that as long as it achieves the goal. Industry seeks out cheapest/most efficient compliance mechanism available. Gives industry an ongoing incentive to conduct R&D into more efficient—though not necessarily more effective—pollution-control technology. Most environmental controls are performance standards. Not one-size-fits-all. The only part that is one-size-fits-all is the emission limitation. Requires a vigorous monitoring regime. Regulators must be able to verify monitoring on a periodic basis. Performance-based standards do not work unless pollution output is measured accurately. Water-Quality Standards Complement technology-based standards. Act as a safety net. Permits may be based on more stringent water-quality standards when technology-based standards fail to achieve applicable water quality standards. 33 U.S.C. § 1311(b)(1)(C). Embody “antidegradation.” CWA controls point-source pollution, but not non-point-source pollution. 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. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.” 33 U.S.C. § 1362(14). Definite and discreet conveyance, e.g., pipe. Technology-based standards focus on point source pollution. Well-controlled. Regulated under NPDES. Non-Point Source – Disperse pollution, e.g., runoff. Anything that is not point source pollution. Technology-based standards do not focus on non-point sources. Most remaining water pollution is from non-point sources. Agricultural non-point sources, e.g., manure washing into rivers, are a very problematic source. It is easier to put a screen on a pipe than prevent runoff from flowing into a river. Small farmers dealing with non-point source pollution may not have the money to address the pollution. If farmers are large, factory farms, they have powerful lobbyists. They have been very successful in building in exemptions for agricultural activities in the relevant statutes. Requiring dischargers to comply with offsets from rivers is tantamount to land use regulation, which is a traditional state concern. Makes it an unlikely object of federal regulation. Worried about putting the entire CWA at risk. Three Dichotomies Direct v. Indirect Discharges Direct – Discharge pollution directly into surface waters. Permits required. Indirect – Send waste to publicly owned treatment works, which discharge it into surface waters after treatment. No pipes going directly to surface waters. Must comply with pre-treatment standards. Different controls apply to each category. New v. Existing Point Sources New – Existing – Both are subject to mandatory, technology-based controls, but the specific controls are different for each. Federal v. State Governments Federal EPA adopts technology-based controls. EPA has authority to issue discharge permits, but states may apply to EPA to take over administration of EPA’s clean water program. 46 states have done so. States Implement standards. Most states implement the permitting program. When permits are issued, dischargers at bottom must comply with EPA standards. States may impose more stringent controls. States must impose more stringent controls if EPA’s technology-based controls are insufficient to achieve the desired goals. (This is where the backup ambient-standards come into play.) States issue water quality standards. Very different from CAA, where the EPA issues the air quality standards. EPA may veto insufficient water quality standards. Two Ways of Keeping State Standards Adequate EPA’s scientific studies and their recommendations for suggested water quality levels. States must show why their lesser standards are justified. Statutory requirements. Minimum standards. EPA and states share enforcement authority. 33 U.S.C. § 1319(a)(1) – State gets first crack at enforcement. National Pollutant Discharge Elimination System (NPDES) – 33 U.S.C. § 1342. Generally Primary exception to No Discharge Rule. Regulation of point sources. Established effluent limitations that a discharger must meet and the deadline for meeting them. Federal Regulations – 40 C.F.R. § 122. Two Classes of Point Sources Municipal Sewage Treatment Plants/Publicly Owned Treatment Works/POTWs Technology-based standards known as “primary” and “secondary” treatment. 33 U.S.C. § 1311(b)(1)(B). Summary of regulatory regime on p. 555. Industrial Discharges First – Must satisfy minimum level of treatment required by best practical control technology currently available (BPT). Initially by 1977. Second – Must satisfy minimum level of treatment required by best available technology economically achievable (BAT or BATEA). 33 U.S.C. § 1311(b)(2)(A). Initially by 1983. More stringent technology-based controls than BPT. Both must apply for and operate in compliance with federal or qualified state permits. New Source Performance Standards – Best available demonstrated control technology (BADT). 33 U.S.C. § 1316. Not an official program. Similar to NSPS of CAA. Three Classes of Pollutants Conventional E.g., biochemical oxygen-demanding substances, total suspended solids, fecal coliform bacteria, pH, oil, and grease. Best conventional pollutant control technology (BCT) is required. Less rigorous treatment standard than BAT. Must be at least as stringent at BPT. Non-Conventional BAT is required. Toxic BAT is required. Directory: outlines outlines -> Chabot College Fall 2010 Course Outline for Computer Application Systems 60 business software applications/general accounting outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97 outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11 Download 0.53 Mb. Share with your friends:
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