CHAPTER 2 FEDERAL LAW GOVERNING GROUND WATER PROTECTION AND REMEDIATION
| Jurisdiction | United States |
(May 1991)
FEDERAL LAW GOVERNING GROUND WATER PROTECTION AND REMEDIATION
Jim Butler
Parsons, Behle & Latimer
Salt Lake City, Utah
Introduction
Identifying federal law governing ground water protection and remediation is no simple task. Federal law relating to ground water quality cannot be found in a single statute, but must be ferreted from a long list of federal environmental laws and regulations. Moreover, provisions relating to ground water quality are rarely explicit; more often the connection with ground water is indirect or implied. Federal ground water law, much like the resource itself, lies hidden beneath the surface. Nearly every federal environmental program has an impact on ground water quality yet there is no federal statute that establishes a national goal or comprehensive program regarding ground water quality.
In addition, an understanding of federal ground water law is unavailing without a corresponding knowledge of state laws and regulation relating to ground water quality and allocation. In ground water protection, more than any other area of environmental law, states are playing a substantial and growing role. This paper offers an overview of current federal laws that relate to ground water protection and remediation, offers an explanation of how and why federal ground water law differs from other federal environmental statutes, and suggests some future trends in federal and state ground water protection efforts.
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I. Is There a Federal Law of Ground Water Protection?
A federal law of ground water protection and remediation does not exist, in the sense of a modern environmental statute. Instead, a mosaic of sometimes related and sometimes unrelated statutes and regulations form a partial pattern of source control and resource protection.
A modern federal environmental statute typically contains eight, or perhaps nine structural elements:
1. Federally enforceable ambient standards or criteria for protecting the resource;1
2. Required permits for new and existing major sources;2
3. Discharge or emissions limits for regulated sources;3
4. Monitoring, reporting and record keeping requirements;4
5. An enforcement program, including inspection authority, administrative and/or judicial enforcement processes, civil and criminal penalties and remedial and corrective action authority;5
6. A defined federal/state relationship;6
7. Public participation and citizen enforcement;7 and
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8. Research and technology transfer programs.8
In addition, market-based emission controls are emerging as an element of federal environmental law. The evolution of market-base controls is most prominent in the Clean Air Act, especially the 1990 Clean Air Act Amendments.9
Compared to this relative common structure of federal law relating to protection of air quality and surface water and hazardous waste management, federal law respecting ground water quality protection and remediation must be constructed from pieces of various federal statutes and regulations administered by numerous federal agencies.10 These provisions are scattered throughout federal statutes which focus not on ground water, but on other media or sources of contaminants.
Nevertheless, federal regulation related to ground water is significant and pervasive. At least 16 federal statutes contain provisions relevant to ground water protection or management, and more than a dozen agencies and offices are involved in activities related to ground water.11 Most of these federal statutes and programs, however, are focused narrowly on particular sources, contaminants or users.
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A. Federal Environmental Laws With a Major Impact on Ground Water Quality
Safe Drinking Water Act — The Safe Drinking Water Act ("SDWA")12 includes several important provisions related to ground water. Most importantly, the act directs EPA to establish national drinking water standards, known as Maximum Contaminant Levels ("MCLs"), to protect public health from contaminants found in public drinking water systems.13 The standards are enforced at the tap, not at the water supply or prior to distribution, thus they are not directly applicable to ground water aquifers. States may apply to enforce the SDWA program if they have adopted standards which are "no less stringent" than the federal standards and comply with certain procedural requirements. The drinking water standards established under SDWA have commonly been adopted by EPA as cleanup standards for other programs.14
SDWA also includes an Underground Injection Control ("UIC") program, which imposes restrictions on underground injection wells.15 The UIC program regulates the design and operation of waste injection and was designed to prevent contamination of water supplies for existing or foreseeable public water systems. By EPA
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regulation,16 injection wells are classified by types of disposal. No injection well may operate without a permit, and the burden is on the permittee to demonstrate that the well is properly constructed and operated in order to protect water supplies. Ground water monitoring may be required to insure compliance with the statutory goals, and abandoned wells must be plugged by specified methods to prevent migration of injected wastes.
SDWA § 1424(e) provides that, either upon petition or upon EPA initiative, the agency may designate as a Sole Source Aquifer ("SSA") an "aquifer which is the sole or principal drinking water source for the area and which, if contaminated, would create a significant hazard to public health." The designation bars federal financial assistance to any project which might threaten ground water quality in the SSA.
The 1986 amendments to SDWA added a "wellhead protection program" which requires states to submit programs to protect wellhead areas from contaminants which may have an adverse effect on public health. The statute defines "wellhead protection area" to mean "the surface and subsurface area surrounding a water well or wellfield, supplying a public water system, through which contaminants are reasonably likely to move toward and reach such well or wellfield."17 The extent of each wellhead protection area is to be determined by the state. The effectiveness of the wellhead protection program has been questioned because the only consequence for failure to submit a program is the loss of funds under the program, and Congress has failed to
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fully appropriate the authorized funds.18 However, EPA recently reported that 30 states have submitted programs to EPA for approval.19
Clean Water Act — The Clean Water Act ("CWA")20 is the nation's primary water quality statute, but, as a practical matter, has no regulatory impact on ground water quality. The objective of the CWA is to "restore and maintain the chemical, physical and biological integrity of the nation's water."21 The statute also directs the EPA to "develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters and ground waters and improving the sanitary condition of surface and ground waters."22 Yet the focus of the CWA remains on surface water.23 The primary regulatory program is the requirement for permits for discharge of pollutants from point sources to navigable waters under the National Pollutant Discharge Elimination System ("NPDES"). The permit system may have an impact on ground water when it is hydrologically connected with surface waters.
While the CWA has little direct impact on ground water quality protection, it could have a significant indirect impact. The CWA authorizes EPA to develop ground water quality criteria, guidelines and information on restoration and maintenance.24 The statute also requires every state to prepare and submit an assessment report and
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management program to control pollution from nonpoint sources.25 Nonpoint sources, including mines, septic tanks and runoff from agricultural and urban lands, often present a significant threat to ground water quality, but the impact of this requirement has been minimal because EPA has no authority to enforce the state plans or ensure that they are effective.
In tandem with the general water quality goals and planning requirements of the CWA, however, other provisions have been used to develop and strengthen state ground water quality programs. The Section 106 grant program has supported development of state ground water protection strategies and section 319(i) authorizes grants to states for ground water programs which will "advance the State toward implementation of a comprehensive nonpoint source pollution control program."26 Much of the federal and state activity to support the development of comprehensive state ground water protection strategies and programs has been authorized and financed by the CWA.
Resource Conservation and Recovery Act — The Resource Conservation and Recovery Act ("RCRA")27 has been characterized as the federal statute that "most directly benefits groundwater quality."28 RCRA provides a comprehensive management program for hazardous wastes and the regulatory program under RCRA Subtitle C includes operating requirements for generators and transporters of hazardous waste
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and performance standards for permitting hazardous waste treatment, storage and disposal facilities. The program is designed to protect ground water from contamination from hazardous waste surface impoundments, waste piles, land treatment units, and landfills. For example, RCRA Subtitle C regulations include a specific ground water protection standard which suggests some of the complexities and limitations of the RCRA ground water protection program:
The owner or operator [of a facility] must comply with conditions specified in the facility permit that are designed to insure that hazardous constituents under § 264.9329 detected in the ground...
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