COVID-19 And the Clean Water Act: A Look At the Liability And Damages of “Flushable” Wipes, 0520 RIBJ, RIBJ, 62 RI Bar J., Special COVID-19 Issue, Pg. 20

• Author: Nicole Andrescavage, Esq. Desautel Law, Kallie Longval, Esq. Desautel Law
• Position: Vol. 62 Special COVID-19 Issue Pg. 20

COVID-19 and the Clean Water Act: A Look at the Liability and Damages of “Flushable” Wipes

Vol. 62 Special COVID-19 Issue Pg. 20

Rhode Island Bar Journal

May, 2020

Nicole Andrescavage, Esq. Desautel Law, Kallie Longval, Esq. Desautel Law

We are sure many Rhode Islanders are wisely using disinfecting or cleaning wipes in their homes, cars, and the like, in order to avoid contact with COVID-19. A recent study demonstrated that COVID-19 can survive up to three days on certain surfaces when disinfecting procedures are not implemented.^[1] Adequate cleaning products are essential in your daily routine right now, but proper disposal of these cleaning products is equally important.

The RI Department of Environmental Management (“RIDEM”) has issued reminders about the fact that these items cannot be disposed of by flushing them away.^[2] This warning is true even if the packaging advertises that they are flushable. The wipes must be thrown away as refuse. Why? They do not break down quickly enough (unlike toilet paper) because of the materials used in making them. RIDEM Director Janet Coit recently noted that “[p]roper functioning of our wastewater treatment system is critical to protecting public health by preventing viruses and bacteria from getting into your homes, onto roadways and into our waterways.”^[3] Thus, proper disposal of disinfecting wipes should be part of everyone’s protective measures for health after using these wipes.

From a legal standpoint, it must be noted that several federal and state regulations govern the issues resulting from damage to wastewater treatment systems, both municipal and onsite. We review the different regulations below and discuss the practical implications of those regulations for municipalities and individuals that sustain damage to wastewater treatment systems as a result of flushing these disinfectant wipes. In short, a municipality or person will likely need permitting help to get out of the mess created by these clogs and the ensuing damage, and may face fines and/or imprisonment.

Municipal Damage Caused by Flushing Wipes

A number of RI communities have unfortunately reported pump station failures and other damage to wastewater treatment systems as a result of clogging caused by these wipes. Reports of wastewater system overflows are occurring as well, which can lead to wastewater treatment issues. As one example, the Burrillville Sewer Commission notified RIDEM in March that equipment and pump stations have been continually clogged by disinfectant wipes, and crew members have been called out after-hours to clear clogged pipes in order to prevent sewage overflows.^[4] In March alone, Narragansett experienced about $7,300 worth of repairs after disinfectant wipes clogged and damaged two pumps at one of the pump stations, and town wastewater employees had to respond before sewage was released into the surrounding environment.^[5]

Permitting help for municipalities under these conditions will likely involve the federal and state governments. Quick access to permitting help will also prevent other issues, like enforcement actions for any potential regulatory violations.

Controlling Federal and State Regulations

The Clean Water Act (“CWA”) makes it unlawful to discharge any pollutant into navigable waters of the United States unless authorized by specified sections of the CWA .^[6] To implement this restriction, as well as the exceptions, the CWA has a complex system regulating all discharges into the navigable waters of the United States. This system includes the regulation and control of effluent discharges from municipal wastewater treatment facilities, which fall under the definition of Publicly Owned Treatment Works (“POTWs”).^[7]

The CWA seeks to control effluent discharges from POTWs in two stages. First, the CWA implements pretreatment standards which are used “to prevent the introduction of pollutants into [POTWs] which will interfere with the operation of a POTW, including interference with its use or disposal of municipal sludge; to prevent the introduction of pollutants into POTWs which will pass through the...