| ENVIRONMENTAL DESKBOOK 1998 |
| ENVIRONMENTAL
LAWS AND REGULATIONS WATER PROTECTION |
| CLEAN WATER
ACT 33 U.S.C. 1251-1387; 33 C.F.R. Parts 320-330, 335-338; 40 C.F.R. Parts 104-140, 230-233, 401-471. |
In the Clean Water Act of 1972, Congress established the basic framework for current programs to control water pollution. The statute s main emphasis was on controlling pollutant discharges from both industrial and municipal sources through the National Pollutant Discharge Elimination System (NPDES) permit program. The NPDES permit program requires that every industrial or municipal "point source" discharging into public waters obtain an NPDES permit. The permits specify numerical discharge limits for a wide range of individual substances and require detailed self-monitoring. Violation of any limit on any substance is subject to penalties of up to $27,500 per day, and such violations can be demonstrated by a company s own self-monitoring reports. Companies that discharge industrial waste into municipal sewers must "pretreat" their waste so that the final municipal sewage discharge will achieve a treatment quality equivalent to a point source and sludge will not be contaminated. Increasingly, sewer plant discharge permits require the sewer authority to issue local sewer permits to significant industrial sewer users.
Discharge limits in permits are expressed as average and maximum pollutant levels which can be achieved by using the best available technology (BAT) economically achievable. If this treatment level does not protect local water uses, more stringent standards may be applied. Published treatment standards (effluent guidelines) and national technical guidance are used by states and local sewer authorities to assure uniformity. Permit limits often provoke challenges where the limit is so low that it becomes difficult to measure and report reliable compliance data.
A permit must be obtained from the Corps of Engineers under section 404 of the Clean Water Act for many types of construction activities in waterways and wetlands. Section 404 permits are subject to review under NEPA and may trigger a requirement to complete an Environmental Impact Statement.
EPA has had authority to veto Corps proposals to issue permits under section 404. In addition, EPA rules mandate "no net loss" of wetlands. In 1998, Congress may revise the definition of "wetlands" so that some properties formerly subject to EPA jurisdiction will no longer be considered wetlands.
Several Morgan Lewis attorneys work extensively with the Clean Water Act. Steven Schatzow served for four years (1980-84) as director of the EPA office responsible for developing the effluent guidelines and other CWA regulations. John Quarles, as EPA s first Assistant Administrator for Enforcement, led the establishment of the NPDES national permit program. Robert Collings enforced water pollution control regulations as a top official in EPA s Region III office in Philadelphia. Kenneth Myers and Kenneth Rubin have handled both administrative proceedings contesting permit terms and litigation in federal appellate courts challenging effluent guideline regulations. John Quarles, Kenneth Rubin, and Anthony Roth have been active in litigation arising under section 404 in cases spanning the country, from Maine to Texas and from California to Virginia. Kenneth Rubin taught environmental law for the Corps of Engineers for 12 years. Randy Visser and Steve Oppenheimer have defended NPDES enforcement actions in LA County. The Philadelphia and Harrisburg offices have appealed and negotiated many NPDES and sewer permits. Maxine Woelfling in Harrisburg was formerly the Chief Administrative Law Judge reviewing such challenges.
| SAFE DRINKING
WATER ACT 42 U.S.C. 300f-300j-26; 40 C.F.R. Parts 141-149. |
EPA establishes maximum contaminant levels (MCLs) for a wide variety of chemicals present in drinking water. These MCLs are based upon health and economic considerations. In addition, for each of these substances, EPA publishes maximum contaminant level goals (MCLGs), which are based solely upon public health. MCL requirements apply to public water systems, which include the traditional suppliers of water to communities as well as those manufacturing plants that provide their own source of drinking water to employees and visitors. On August 6, 1996, President Clinton signed the long-awaited Safe Drinking Water Act Amendments into law. The most significant change is the requirement that in future standards, EPA must make a determination whether the benefits of an M.C.L. justify the costs. The new cost-benefit analysis may not be used to relax any pre-existing standards. The Amendments also require public water utilities to notify consumers within twenty-four hours about violations that may present a risk to public health. EPA will no longer promulgate MCLs for trace contaminants that do not occur nationwide at levels of public health concern.
In addition to identifying safe levels for drinking water, this statute also authorizes EPA to establish a regulatory program to prevent contamination of underground sources of drinking water. All underground injection control (UIC) wells are subject to special regulatory controls under this statute. The law now also contains certain provisions for the protection of ground water quality in the vicinity of drinking water wells.
Kenneth Rubin, co-author of a book on the SDWA, represents a leading trade association and recently prevailed in a D.C. Circuit review of EPA s drinking water standards for lead. John Quarles and Steven Schatzow have provided advice to companies in connection with UIC requirements.