§12.4 - Permitting Under Washington Law

• Jurisdiction: Washington

§ 12.4 PERMITTING UNDER WASHINGTON LAW

The state of Washington has implemented a number of permitting programs, discussed below.

(1) Discharge permits

A state waste discharge permit is required for discharges of pollutants to groundwater or discharges to municipal sanitary sewer systems as part of the statewide (undelegated) pretreatment program. An NPDES and a state waste discharge permit must be obtained for facilities that discharge pollutants to both surface and groundwater. Washington is a delegated-authority state, which means that NPDES permits are issued by DOE in accordance with the EPA's rules, 40 C.F.R. pts. 122, 123, 125, and DOE's rules, Ch. 173-220 WAC.

(2) NPDES permit program

An NPDES permit is required for discharges of pollutants from a point source into surface waters of the state. WAC 173-220-020. "Point source" means "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 ...." WAC 173-220-030(18). Point sources do not include return flows from irrigated agriculture. Id.

The NPDES permit sets "effluent limitations," which are limits on the amount of pollutants that can be discharged into surface waters. WAC 173-220-130(a). Additionally, the discharged wastewater must be treated with the best available treatment technology that is economically achievable, regardless of the condition of the receiving water. Effluent limitations are set based on treatment technology, but more stringent limits may be imposed if the technology-based limits do not prevent violations of water quality standards.

The term "discharge of a pollutant" is defined to mean "any addition of any pollutant or combination of pollutants to surface waters of the state from any point source" or "any addition of any pollutant or combination of pollutants to the waters of the contiguous zone or the ocean from any point source, other than a vessel or other floating craft which is being used as a means of transportation." WAC 173-220-030(5); see also 33 U.S.C. §1362(12).

(a) Pollutant

For purposes of the NPDES permit program, "pollutant" is defined as encompassing "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewer sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal and agricultural waste discharged into water." WAC 173-220-030(19). Courts have construed this definition extremely broadly, and have held it to include virtually every kind of waste material regardless of whether that material had value at the time it was discharged. See Weinberger v. Romero-Barcelo,456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) (bombs dropped on naval target range held to be pollutants); United States v. Standard Oil Co., 384 U.S. 224, 86 S.Ct. 1427,16 L.Ed.2d 492 (1966) (accidental discharge of gasoline held to be a pollutant under the Refuse Act).

(b) Addition

The CWA requires an addition of a pollutant before an NPDES permit is required. This requirement has been successfully used in some situations to preclude the requirement of an NPDES permit when the "pollutants" in the waste stream are present only because of their presence in intake waters, if the intake waters are drawn from the same body of water into which the discharge is made and if the pollutants present in the intake water are not removed by the discharger as part of its usual operations. 40 C.F.R. §122.45(h).

Similarly an "addition" does not include discharges of water from dams, even if a dam's operations adversely affect the temperature or dissolved oxygen content of the water. Nat'l Wildlife Fed'n v. Consumers Power Co.,862 F.2d 580, 583 (6th Cir. 1988); Nat'l Wildlife Fed'n v. Gorsuch,693 F.2d 156, 165 (D.C. Cir. 1982). The Ninth Circuit has held, however, that the "Act does not impose liability only where a point source discharge creates a net increase in the level of the pollution. Rather, the Act categorically prohibits any discharge of a pollutant from a point source without a permit." Comm. to Save Mokelumne River v. East Bay Mun. Util. Dist,13 F.3d 305 (9th Cir. 1993), cert, denied, 513 U.S. 873 (1994).

(c) Point source

The term "point source" includes any discrete conveyance, such as a ditch, pipe, well, container, or vessel from which pollutants may be discharged. WAC 173-220-030(18). There are several exceptions to this definition, however, including irrigation return flows, the discharge of sewage from vessels regulated under §312 of the Act, 33 U.S.C. §1322, effluent from properly functioning marine engines, certain agricultural and silvicultural discharges, and certain discharges of dredged or fill material regulated under §404 of the Act, 13 U.S.C. §1344.

(d) Waters of the state

Under the state NPDES permit program, "surface waters of the state" means "all waters defined as 'waters of the United States' in 40 C.F.R. §122.2 that are within the boundaries of the state of Washington. This includes lakes, rivers, ponds, streams, inland waters, wetlands, ocean, bays, estuaries, sounds, and inlets." WAC 173-220-030(21).

The Ninth Circuit has interpreted this definition very broadly, stating that "Congress intended to create a very broad grant of jurisdiction in the CWA, extending to any aquatic features within the reach of the commerce clause power." Leslie Salt Co. v. United States,896 F.2d 354, 357 (9th Cir. 1990), cert, denied, 498 U.S. 1126 (1991). The reach of the Act is not limitless, however. For example, isolated groundwater is not regulated under the CWA. Wash. Wilderness Coal, v. Hecla Mining Co.,870 F.Supp. 983 (E.D. Wash. 1994).

One major issue concerns whether a discharge to publicly or privately owned sewage systems constitutes a discharge to waters of the United States and thus requires an NPDES permit. A discharge to a sewage system that is not connected to an operable treatment works is a discharge subject to an NPDES permit. On the other hand, a discharge to a publicly owned treatment works that is capable of meeting effluent limits is excluded from the NPDES permit requirement. 40 C.F.R. §122.3(c). All industrial dischargers to POTWs must comply with general pretreatment standards, 40 C.F.R. pt. 403, and many others must also comply with industry-by-industry ("categorical") standards that have been established along with effluent limitations for each industry.

(e) NPDES permit process

Dischargers must apply for individual NPDES permits at least 180 days before the discharge begins, or in sufficient time to ensure compliance with national and state effluent limitations and water quality standards. WAC 173-220-040. Applications for renewal must be submitted 180 days before the expiration of an existing permit. Under the Waste Discharge General Permit Program, DOE may also issue general permits to cover categories of dischargers or geographic areas where there are similar operations and wastes that require the same effluent limitations, conditions, and monitoring. Dischargers who wish to be covered by a general permit must file a notification of coverage with DOE. WAC 173-226-200.

After receipt of an application or notification of coverage, DOE makes a tentative determination to issue or deny the permit. If DOE decides to issue the permit, then it issues a draft permit, WAC 173-220-110, and a fact sheet that contains, among other things, the legal and technical grounds for the draft permit determination. WAC 173-220-060.

Public notice of every draft permit must be given, and a public comment period follows. WAC 173-220-050. DOE must also notify other government agencies and provide those agencies an opportunity to submit their written views and recommendations. WAC 173-220-070. Any interested person or entity may request a public hearing, WAC 173-220-090, which triggers the requirement that DOE give public notice of the public hearing, WAC 173-220-100.

Permit conditions include effluent limitations, monitoring requirements, reporting requirements (including a requirement to report any new or increased discharge of pollutants), and any conditions necessary to prevent or control pollutant discharges. Permits may also include, among other things, compliance schedules, whole effluent toxicity testing and limits, sediment monitoring, dilution analysis, and solid waste plans.

Practice Tip: Conditions typically included in individual permits are often either negotiable or susceptible to legal attack. Because the CWA is a strict liability statute, it is crucial that permit holders either negotiate out of the permit's conditions that they are unable to meet or negotiate acceptable compliance schedules. Accepting permit conditions that a permit holder knows it cannot meet can be disastrous, as the courts have established that an inability to meet permit conditions is no defense to an enforcement action Accordingly, draft permit conditions should be carefully scrutinized. If proposed permits contain inappropriate conditions these conditions should be modified or appealed to the PCHB.

Permits are valid for a maximum of five years. Permittees must apply to renew permits at least 180 days before expiration and must demonstrate substantial compliance with all of the permit terms and conditions. WAC 173-220-180. A timely application for renewal continues the prior permit's effectiveness until DOE has made a final determination on the permit renewal application.

(f) Permit modification or revocation

A permit modification may involve a process similar to developing a new permit. Permit modifications may be initiated by DOE, the permittee, the PCHB, or the public. DOE may modify the permit for any cause...