Environmental Regulations and Programs

III. ENVIRONMENTAL REGULATIONS AND PROGRAMS

A. The Clean Water Act

1. Overview

In 1948, the Federal Water Pollution Control Act was enacted with the goal of restoring and maintaining clean waters in the United States. An increased public concern for controlling water pollution led to the enactment of the Federal Pollution Control Act Amendments of 1972.⁴⁶ The combination of these amendments and additional amendments in 1977, became the Clean Water Act (CWA). The CWA establishes the basic structure for protecting U.S. waters from pollution, to "restore and maintain the chemical, physical, and biological integrity of the Nation's water."⁴⁷

To achieve these goals, the CWA requires the EPA to authorize discharges through issuance of National Pollution Discharge Elimination System (NPDES) permits.⁴⁸ The EPA uses two methods to protect the quality of water: (1) monitoring water quality standards, and (2) controlling discharge of pollutants.

This impacts developers and general contractors, who are consequently required to obtain a permit for any construction activity or land development when pollutants are going to be discharged into navigable waters. This is specifically applicable for discharges of storm-water associated with construction activity.⁴⁹

Other examples of waste discharges to water that require a permit include:

• Dredged Soil

• Agricultural Waste

• Industrial Waste

• Biological Material

• Radioactive Material

• Sewage/Sludge

2. Key Terms

Below are some key terms and definitions for reference to better understand the CWA. These key terms are defined as follows:

a. "Pollutant" is defined "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage 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."⁵⁰

b. "Discharge of a pollutant" or "discharge of pollutants" is defined as, "any addition of any pollutant to navigable waters from any point source," and "any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft."⁵¹

c. "Navigable waters" is defined as the "waters of the United States, including the territorial seas."⁵²

d. "Point source" is defined as "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. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture."⁵³

3. The National Pollution Discharge Elimination System (NPDES)

The National Pollution Discharge Elimination System (NPDES) permit program controls and regulates surface water, wastewater, and stormwater discharges by limiting the quantities of pollutants that can be discharged. Applications for NPDES permits are controlled by the regulations under 40 CFR Part 122, Subpart B.

Under the CWA, it is unlawful to discharge any pollutant from a point source into navigable waters unless a permit is obtained.⁵⁴ NPDES permits can be issued by individual states that have obtained EPA approval to issue permits. Maryland has approval to issue NPDES permits through the MDE.⁵⁵ The Code of Maryland Regulations (COMAR) Title 26, subtitle 08, requires that all discharges of wastes or wastewater shall be authorized by a discharge NPDES permit.⁵⁶ State permits include discharges to surface and ground waters.⁵⁷

a. What Is an NPDES Permit?

An NPDES permit specifies an acceptable level of pollutant in a discharge and includes provisions for mandatory reporting and monitoring procedures.⁵⁸ NPDES permits are facility- specific, meaning the limits specified in the permit are only applicable for the permit holder's facility.

The two basic types of NPDES permits are:

1. An individual permit, which is a permit specifically tailored to an individual facility.

2. A general permit, which covers a group of dischargers with similar qualities within a given geographical location.⁵⁹

b. How Is NPDES Permit Compliance Monitored?

There are various methods used to monitor NPDES permit conditions and compliance. The permit will require the facility to sample its discharges and notify EPA and the state regulatory agency of these results.⁶⁰ In addition, the permit will require the facility to notify EPA and the state agency, MDE, when the facility determines it is not in compliance with the requirements of a permit.

While permitting compliance is administrated by the MDE, the EPA maintains its authority to monitor compliance as well. Thus, both the EPA and the MDE may conduct inspections to determine compliance. Inspections may consist of reviewing discharge monitoring reports, interviewing facili ty personnel, and sampling wastewater.

4. Penalties and Enforcement

Authorized⁶¹ representatives of the EPA or MDE may commence a civil action against a violator of the Clean Water Act, seeking a permanent or temporary injunction.⁶² "Any action . . . may be brought in the district court of the United States for the district in which the defendant is located or resides or is doing business, and such court shall have jurisdiction to restrain such violation and to require compliance."⁶³ EPA may also administer compliance orders.

In addition, criminal and civil penalties may be enforced depending upon the violations.⁶⁴

a. Criminal Penalties:

(i) Negligent Violations

Any person who negligently violates Title 33, Chapter 26, or "negligently introduces into a sewer system or into a publicly owned treatment works any pollutant or hazardous substance which such person knew or reasonably should have known could cause personal injury or property damage"⁶⁵ shall be punished by a fine "of not less than $2,500 nor more than $25,000 per day of violation," by imprisonment for not more than one year, or by both.⁶⁶

"If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than $50,000 per day of violation, or by imprisonment of not more than 2 years, or by both."⁶⁷

(ii) Knowing Violations

Any person who knowingly violates Title 33, Chapter 26, or "knowingly introduces into a sewer system or into a publicly owned treatment works any pollutant or hazardous substance which such person knew or reasonably should have known could cause personal injury or property damage,"⁶⁸ shall be "punished by a fine of not less than $5,000 nor more than $50,000 per day of violation," by imprisonment for not more than three years, or by both.⁶⁹

"If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than $100,000 per day of violation, or by imprisonment of not more than 6 years, or by both."⁷⁰

(iii) Knowing Endangerment

Any person who knowingly violates Title 33, Chapter 26 and "who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury,"⁷¹ shall be subject to a fine of not more than $250,000, imprisonment of not more than 15 years, or both.⁷²

"A person which is an organization shall, upon conviction of violating this subparagraph, be subject to a fine of not more than $1,000,000. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, the maximum punishment shall be doubled with respect to both fine and imprisonment."⁷³

(iv) False Statements

"Any person who knowingly makes any false material statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter or who knowingly falsifies, tampers with, or renders inaccurate any monitoring device or method required to be maintained under this chapter, shall upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than 2 years, or by both."⁷⁴

If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than $20,000 per day of violation, or by imprisonment of not more than 4 years, or by both."⁷⁵

b. Civil Penalties

A violator of Title 33, Chapter 26, or any permit condition or limitation, shall be subject to a civil penalty not to exceed $25,000 per day for each violation.⁷⁶

c. Classes of Penalties

(i) Class I

The amount of a class I civil penalty may not exceed $10,000 per violation, and the maximum amount of any class I civil penalty shall not exceed $25,000.⁷⁷

(ii) Class II

The amount of a class II civil penalty may not exceed $10,000 per day for each day during which the violation continues, and the maximum amount of any class II civil penalty shall not exceed $125,000.⁷⁸

(iii) Determining Penalty Amount

In determining the amount of any penalty assessed the following factors⁷⁹ are assessed:

1. The nature of the violation(s);

2. The circumstances;

3. The extent and gravity of the violation(s);

4. The violator's ability to pay;

5. Prior history of such violations;

6. Degree of culpability; and

7. Economic benefit or savings resulting from the violation(s).

d. Lawsuits Brought by Citizens

An individual (referred to as a "citizen" by case law) can also bring a suit under the CWA, as long as the constitutional standing requirements are satisfied⁸⁰ and there is an "ongoing violation" of the CWA at the time the complaint is filed.⁸¹

5. Stormwater Discharge

In 1987, the Water Quality Act added Section 402(p) to address stormwater discharge regulations. "Stormwater" is defined as "stormwater, snow melt, runoff and surface runoff and drainage."⁸²

a. Industrial...