A Consent Order Primer, Part 2: Legalizing Pollution

A few weeks ago, Oneida County entered into a Consent Order with the Department of Environmental Conservation to solve the problem of raw sewage being spilled into the Mohawk River. I thought that a series of posts covering some of the concepts and terminology might help clarify the issues involved. On 7/15 Part 1, "Plumbing", was posted which focused on the different parts of the sewage disposal system (updated on 7/29 to capsulize the different levels of treatment). Today Part 2 examines how laws are developed to control water pollution.

Behavior = Benefits.

We get many benefits from the waters of our lakes and streams, but the benefits will go away if they become polluted. Pollution results from bad behavior. Laws are made to regulate our behavior to preserve the benefits. The starting place in making laws is to identify the benefits we hope to protect.

Water classification by use.

The benefits of water are associated with how it is used. Waters in their natural state lend themselves to different ranges of use depending on their purity -- the purer the water, the greater the range of potential uses. Water for drinking requires the highest degree of purity. Less pure waters may still be useful for fish propagation or swimming or fishing. If waters are classified according to their "best" use, it then becomes easier to to figure out how our behavior should be regulated to protect the stream's benefits. New York has already classified all its waters [see 6 NYCRR Part 701] , with each stream or portion of stream having an assigned classification [see 6 NYCRR Parts 800, et. seq.]. For example, the Mohawk River where Oneida County has its problem has been classified as a Class C stream. This water is supposed to be suitable for fish reproduction. It normally is purer than Class D water, which is suitable for fish survival (but not reproduction), but not as pure as Class B, which is suitable for swimming.

Water quality standards.

Once the best use of a stream is identified, it becomes possible to define the quality of the water (e.g. in terms of chemical content, odor, clarity, etc.) that must be maintained to preserve its use. These definitions are called water quality standards. New York has used its water classifications to develop water quality standards. [see 6 NYCRR Part 702 regarding development and 6 NYCRR Part 703 for the standards themselves].

Once water quality standards have been identified, it then becomes possible know what behavior is "right" vs. what is "wrong." Any behavior that causes a stream to be of lesser quality than an applicable water quality standard would be "wrong."

However, even assuming that one has knowledge of the water quality standards for a particular stream, the connection between a particular activity and the violation of a water quality standard may not be clear, making enforcement of the standard a problem. That is where regulation of the "behavior" end of the "Behavior=Benefits" equation becomes important. But where to begin?

Point Sources, Permits and Effluent Limitations.

With all the different ways that contaminants can make their way into streams, it would be impossible to simply prohibit all discharges to streams without drastic consequences to our lifestyles. Since pollution most often enters streams from specific points (e.g. a drain pipe or a ditch), what happens at the "point source" is the logical thing to regulate. The scheme often adopted is to prohibit all discharges from "point sources" that do not have a permit. If someone has a "point source" on their property that does not have a permit, they are in violation of the law.

As suggested above, the connection between a particular discharge and the violation of a water quality standard may not be clear to the person owning the point source. The government regulator, however, should be in the position of being able to calculate the kinds of discharges that would cause a violation of water quality standards, and define limits for particular pollutants to ensure that water quality standards are not violated. These limits are called effluent limitations, which can be incorporated as conditions in a discharge permit. If a particular technology is known to work at cleaning effluent, it may be simpler for the regulator to simply require as a permit condition that the technology be used .

The permit will contain conditions intended to ensure that discharges from the point source do not cause a violation of the water quality standards in the receiving stream. If someone's discharge does not comply with the conditions in the permit, they are in violation of the law. If persons making discharges comply with all the terms of their permits, assuming that the government did its calculations and wrote permit conditions correctly, they should be able to rest assured that they are causing no problems.

So, a water pollution permit is permission to pollute - in the sense of a person being allowed to put something into a stream that normally would not be there. The permit, hopefully, will control the nature of the pollution so that no harm results.

Part 3 will look at how Federal, State and Local laws work together -- or not.

[Note: Articles in this series may be revised from time to time to provide additional detail and explanation as time allows, and as current events warrant.]