Tuesday, August 21, 2007

A Consent Order Primer, Part 3: Laws Working Together

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. This is the third of a series of posts covering some of the concepts and terminology to help clarify the issues. On 7/15 Part 1,"Plumbing" focused on the sewage disposal system itself, talking about POTWs, CSOs, SSOs, Inflow and Infiltration, and the different levels of treatment . On 7/29, Part 2, "Legalizing Pollution" examined how laws are developed to control water pollution, describing water classification, water quality standards, point sources, permits and effluent limitations. Today in Part 3 the roles of the federal, state and local governments are examined.

The Federal authority to control water pollution is grounded on the Commerce Clause of the US Constitution. The Rivers and Harbors Act of 1899, the first federal environmental law, made it a misdemeanor to discharge refuse of any kind into navigable waters of the USA. The Federal Water Pollution Control Act (a/k/a the Clean Water Act) came later in 1948 and has been amended many times since, with a major revision in 1972.

Currently, the Federal Clean Water Act (CWA) is well over 200 pages! Section 101 made national goals that (by 1983) wherever attainable,water quality would support recreation and fish propagation, and (by 1985) the discharge of pollutants into navigable waters would be eliminated. Section 301 and others made the discharge of any pollutant unlawful, and required the U. S. Environmental Protection Agency (USEPA) to prescribe effluent limitations based on "best practicable control technology" for point sources other than sewage treatment works; secondary treatment for treatment works; and more stringent limitations necessary to meet water quality standards and other state requirements. Section 306 requires the USEPA to set national performance standards for discharges from particular groups of industries. Section 307 requires "pre-treatment" standards for discharges into sewage systems: to prevent discharges from overwhelming, passing through, or upsetting POTWs. A federal discharge permit system, the "National Pollution Discharge Elimination System" (NPDES), is provided by Section 402, which contains provisions enabling individual States to implement the federal program and write their own permits in lieu of federal permits (i.e., creating a "State Pollution Discharge Elimination System" or SPDES). And if the state or federal government don't do their jobs, the CWA in Section 505 gives individual citizens the right to bring suit to abate violations of the CWA under certain conditions. There are also many sections devoted to funding for research and pollution abatement facilities, as well as to address special situations in particular parts of the country such as the Great Lakes, the Hudson River, and Long Island Sound. The federal law contemplates a ratcheting down over time the amount of allowable pollution to ultimately meet the national goal of no pollution.

The CWA is exceedingly complex, and this is barely scratching the surface. The regulations implementing this law are even more overwhelming. Key ideas to remember, however, are that the Federal government relies heavily on State governments to implement the Federal requirements, that the Federal government will provide big bucks to the states to do this, that it is expected that the States will have their own requirements (often more stringent) to address their own particular needs, and that it is more efficient for the States to implement their own and the Federal requirements at the same time rather than each government doing things separately.

New York State has its own water pollution control laws which are found in Article 17 of the Environmental Conservation Law. If you page through, you will note that the state law makes numerous references to elements of the Federal system -- an intent to implement the Federal system. The Department of Environmental Conservation is charged with classifying waters and adopting standards of purity. There is a general prohibition on discharges of pollutants except when in compliance the state's requirements. Permits are required for discharges. The State Pollutant Discharge Elimination System is created in Article 17 Title 8.

Since they discharge pollutants to the state's waters, the owners of treatment works (POTWs), such as Oneida County, are required to have a SPDES permit. It is through the SPDES permit that particular federal and state requirements are imposed locally.

Like water rolling down hill, Oneida County is required to impose its own requirements on the entities using its facilities. This is for self protection, and to ensure that people don't use the County's treatment works as a way of avoiding the requirements that they would face if they were discharging directly to a stream. No one should be allowed to put things into the County system that would overload it, allow pollution to spill from it, simply pass through it without treatment, upset its treatment processes, or damage the County's facilities. The County imposes its own requirements through the county's sewer use ordinance. And since multiple municipalities have their own facilities that feed into the County's facilities, the County, in turn, requires its municipal customers to have their own laws and ordinances to control their own individual users, to prevent them from doing things that would cause the County's facility to violate its SPDES permit.

In a very real sense, there is a legal "pecking order" that leads from the Federal Government to you, the person with a toilet or drain who can cause a problem if the wrong thing gets flushed away. It can be summed up in this diagram:

Federal Government [CWA] -> NY State [ECL Article 17, SPDES Permit]-> Oneida County, POTW Operator [Sewer Use Ordinance] -> Towns/Villages/City [Local Ordinances] -> You.

In Part 4 we will look at what the Consent Order reveals.

[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]

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