Marcel Gesmundo, Esq.
Gesmundo Law Office
Outline
I.
Approaches to the environment and advocacy
vs.
Approaches to environmental law / regulation
II.
Clean Water Act (CWA)
III. Stormwater and the CWA
IV. Stormwater Enforcement under the CWA
I. Approaches to the environment and
advocacy
(industry, environmentalists, consultants)
vs.
Approaches to environmental law /
regulation
(industry, environmentalists, consultants)
II. THE CLEAN WATER ACT (CWA)
BACKGROUND
• Passed by Congress in 1972
• Purpose: “The objective of this chapter is to restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters. In order to achieve this
objective it is hereby declared that, consistent with the provisions of this chapter –
(1) it is the national goal that the discharge of pollutants into the
navigable waters be eliminated by 1985;
(2) 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;
(3) it is the national policy that the discharge of toxic pollutants in toxic
amounts be prohibited;
(33 USC § 1251) (partial list)
• Created the NPDES permitting scheme
THE CLEAN WATER ACT (CWA)
BACKGROUND
Method of Protecting Waterways: General prohibition except as allowed by the
CWA (usually in compliance with a NPDES permit).
General prohibition:
1.
2.
3.
4.
Discharge of a pollutant
From a point source
To a water of the United States
Except as allowed by the Clean Water Act
THE CLEAN WATER ACT (CWA)
BACKGROUND
The Permitting Scheme
Permits authorize discharge of pollutants from point sources to US waters, but
provides a two-fold protection of US waters:
1. The Equalizer: Technology-Based Effluent Limitations (TBELs)
a. Numerical
b. Narrative
2. The Baseline: Water Quality-Based Effluent Limitations (WQBELs)
a. Numerical
b. Narrative
THE CLEAN WATER ACT (CWA)
BACKGROUND
The Permitting Scheme
Technology Based Effluent Limitations (TBELs):
TBELs are performance standards only and the permitting authority generally
cannot require the use of a particular technology to achieve the limit. Instead, it is
left to the discharger to decide what approach it will take—the use of a particular
technology or the implementation of pollution abatement—to comply with the
permit requirements.
Numeric TBEL – limits discharge of particular pollutant to a measurable limit.
Narrative TBEL – requires dischargers to implement certain measures to
reduce pollutants.
THE CLEAN WATER ACT (CWA)
BACKGROUND
The Permitting Scheme
Water Quality Based Effluent Limitations (WQBELs)
•Apply when technology Apply when technology--based limits are insufficient
to meet WQS.
WQBELs ensure that water quality standards in specific water bodies maintained to
ensure that designated uses for that water can be maintained by ensuring that the
aggregate of pollution entering such water bodies does not exceed levels that
jeopardize those uses:
Examples of uses: public water supply, protection and propagation of fish, shellfish,
and wildlife, recreation, agriculture and industry, navigation, other uses.
Numeric TBEL – limits discharge of particular pollutant to a measurable limit.
Narrative TBEL – requires dischargers to implement certain measures to
reduce pollutants.
III. STORMWATER AND THE CWA
STORMWATER
• NPDES program includes an industrial stormwater stormwater permitting
component.
•11 categories of stormwater discharges associated with discharges associated
with industrial activity.
•If facility discharges or has the potential to discharge stormwater to a
municipal separate storm sewer system (MS4) or directly to waters of the
United States, then that facility requires authorization under a NPDES
industrial stormwater permit.
•Oregon Industrial Stormwater General Permits
•1200-Z
•1200-COLS
III. CWA CITIZEN ENFORCEMENT
In a nutshell: citizens may enforce the CWA by filing suit in the absence of
meaningful state or federal enforcement.
Prerequisite to filing: providing the facility and regulators written notice of the
violations and the intent to file suit in no less than 60-days.
•The 60-day waiting period has been interpreted as a means to allow the
alleged violator time to fix violations or for regulators to seek enforcement.
CWA CITIZEN ENFORCEMENT
Citizens are intended as a supplementary mechanism for enforcement in the
absence of regulatory enforcement.
Concerns over regulatory enforcement:
• lack of resources necessary
• susceptible to political pressure
• are problem solvers rather than enforcers (client vs.. crook approach)
• often proceed under statutes with lesser penalties and less power.
• OVERALL: more willing to settle for too little.
CWA CITIZEN ENFORCEMENT
CITIZEN ENFORCEMENT – BIG IMPACT?
• Approach differs?
• Interprets the permits more rigorously;
•Seek court ordered injunctive relief (either stop operating or discharging);
• See maximum penalties ($37,500 per day per violation);
• Attorney fees (may exceed penalty)
• Standard Settlement Terms:
• Compliance;
• Deferred penalties;
• Supplemental Environmental Project;
• Attorney fees
CWA CITIZEN ENFORCEMENT
STORMWATER
1. Clear Rules (Easy Violations to Prove)
2. Vague Rules (Require Interpretation)
CWA STORMWATER CITIZEN
ENFORCEMENT
(Lessons and Questions)
Clear Rules (Easy Violations to Prove)
• Relatively boring issue.
• Examples
• Failure to monitor
• Failure to report
• Failure to create action plans
• Adequately describe the site
CWA STORMWATER CITIZEN
ENFORCEMENT
(Lessons and Questions)
Vague Rules (Require Interpretation)
• Much more difficult questions for regulators, industry
Example 1
Rule: “The SWPCP must be prepared by a person knowledgeable in stormwater
management and familiar with the facility.” 1200-Z Sch. A.6.a.
Question: What does it take to be knowledgeable in stormwater management?
PE?
Registered environmental health specialist?
Chemistry degree?
Example 2
Rule: Before a new discharge begins discharging to impair waters, it must
“Provide data and other technical information that demonstrates that the
discharge is not expected to cause or contribute to an exceedance of the water
quality standard for which the waterbody is impaired at the point of discharge to
the waterbody if the pollutant(s) for which the waterbody is impaired are likely
to be present at the site and DEQ has not issued a TMDL for the pollutant(s)..”
1200-Z Sch. A.1.a.iii.
Question: what is adequate to “demonstrates that the discharge is not expected
to cause or contribute to an exceedance of the water quality standard”?
Example 3
Narrative Technology-Based Effluent Limits. 1200-Z Sch. A.1.
Questions:
Is a narrative TBEL truly a limit?
How you know whether a TBEL is sufficient?
Example 3.a
Rule: The permittee must “Minimize exposure of manufacturing, processing,
material storage areas, including loading and unloading, disposal, cleaning,
maintenance and fixed fueling areas, to rain, snow, snowmelt and runoff.” .
1200-Z Sch. A.1.a.
Question: What does minimize mean? To what extent?
Example 3.b
Rule: “To the extent technologically available and economically practicable and achievable in
light of best industry practice, the permit registrant must :
i.
Locate materials and activities indoors or protect them with storm resistant covers if
stormwater from affected areas discharges to surface waters. Acceptable covers include,
but are not limited to, permanent structures such as roofs or buildings and temporary
covers such as tarps;
ii. Use grading, berming, or curbing to divert stormwater away from these areas and prevent
stormwater contamination;
iii. Store all hazardous substances (see Schedule D.3, Definitions) within berms or other
secondary containment devices to prevent leaks and spills from contaminating stormwater.
If the use of berms or secondary containment devices is not possible, then store hazardous
substances in areas that do not drain to the storm sewer system;
iv. Locate materials, equipment and activities in containment and diversion systems,
including the storage of leaking or leak-prone vehicles and/or equipment awaiting
maintenance, to prevent leaks and spills from contaminating stormwater;
v. Use drip pans or absorbents under or around leaking or leak-prone
vehicles/equipment or store indoors. Drain fluids from equipment and vehicles prior
to on-site storage or disposal;
vi. Perform all cleaning operations indoors, under cover or in bermed areas that
prevent runoff and run-on and also captures overspray;
vii. Clean up spills or leaks promptly using absorbents or other effective methods to
prevent discharge of pollutants and use spill/overflow protection equipment, and
viii. Ensure that all washwater drains to a proper collection system such as a closedloop system or sanitary sewer and not discharged to the stormwater drainage system
unless the washwater is an authorized non-stormwater discharge listed in condition 7
of the Permit Coverage and Exclusion from Coverage section of the permit.
Questions:
What does “to extent technologically available and economically
practicable and achievable in light of best industry practice” even mean?
On a industry wide scale?
BPJ?
Do you think it is sufficient for a SWPCP to simply reiterate the permit
language?
Does the permit actually require that permittee explain how it will
comply with TBELs and WQBELs?
Questions:
What does “to extent technologically available and economically
practicable and achievable in light of best industry practice” even mean?
On a industry wide scale?
BPJ?
Do you think it is sufficient for a SWPCP to simply reiterate the permit
language?
Does the permit actually require that permittee explain how it will
comply with TBELs and WQBELs?
Example 4
Rule: “The permit registrant must not cause or contribute to a violation of
instream water quality standards as established in OAR 340-041.” 1200-z sch.
A.4.
Questions:
1. How does anyone know whether whether a WQS has been violated?
2. How difficult is it to link a facility to that WQS violation?
BONUS DISCUSSION
COPPER AND 1200-z Permit
Benchmarks set based on 10% risk of violating WQS.
Questions:
1. Does the permit allow for violations of WQS for copper?
1. Does the permit shield facilities from a citizen suit for violating WQS?
1. With respect to copper, does the 1200-z permit run afoul of the CWA’s
permitting scheme