Regulatory Deficiencies in Wastewater Infrastructure in Rural Appalachia

Author:Amanda Stoner
Position:J.D. Candidate, American University Washington College of Law 2020
30 Sustainable Development Law & Policy
RegulatoRy Deficiencies in WasteWateR
infRastRuctuRe in RuRal appalachia
Amanda Stoner*
Many communities in rural Appalachia have insuf-
cient access to basic wastewater disposal facilities.1
When alternative forms of wastewater disposal are
nancially or physically inaccessible, homeowners are forced to
live with failing septic systems where raw sewage is discharged
and sometimes resort to straight piping raw sewage directly into
receiving waterways without any treatment.2 This practice is
highly problematic in mountainous, rural communities because
groundwater ows near the surface of the earth and homeown-
ers frequently rely on private, on-site groundwater wells as their
primary source of drinking water.3 Therefore, failing septic sys-
tems and straight pipes can create chronic water contamination
and serious risk of disease.4 Despite the well documented water
quality threats that stem from industrial and mining pollution
in Appalachia states, the director of the West Virginia Water
Research Institute maintains that “the biggest threat in water
supplies in southern West Virginia . . . is raw sewage”.5
Current state and federal regulatory regimes make the prac-
tice of emitting sewage directly into surface waters illegal, but
these regimes frequently fail to effectively regulate raw sewage
contamination in rural areas.6 The Clean Water Act created the
National Pollution Discharge Elimination System (NPDES)
permitting program to regulate “point source pollutants” such
as straight pipes.7 Under NPDES, “[a]ny person who discharges
or proposes to discharge pollutants. . . and who does not have
an effective permit . . . must submit a complete application to
the Director” or face nes and perhaps criminal charges.8 The
NPDES permitting process requires “operators” to submit an
application for coverage under an individual permit to the rel-
evant state issuing authority, typically a state’s designated regu-
latory agency.9
This permitting process is better suited to regulate large
dischargers such as “industrial, commercial, and municipal
point sources” rather than individual septic systems in remote
communities.10 First, there is no incentive for people living
in economically depressed areas to go through the onerous
practice of applying for permits, paying an application fee,
and volunteering to be monitored by government authorities.11
Second, the state and local agencies that bear the burden of
managing septic tank and NPDES permitting systems often
lack the capacity to effectively address private sewage systems
in sparsely populated areas.12 Third, the legislative authority to
develop waste-water management rules and regulations is often
split between state and local governments and the implementa-
tion and enforcement authority is almost always split between
two or more state or local agencies.13 This decentralized regula-
tory system creates confusion between competing authorities,
decreasing overall accountability. 14 Finally, even where state
and local management efforts successfully regulate individual
wastewater septic systems, there is little monitoring after the
initial construction periods.15
High levels of poverty in these communities further com-
plicate the problem. Even when state agencies are successful in
locating non-permitted sources and notify owners that they are
not in compliance with state and federal environmental law, the
homeowner might not be in a nancial position to take on the
costly task of repairing, replacing, or installing a new septic sys-
tem.16 It is politically unpalatable to impose nes and burdens
on indigent individuals who are both the perpetrators of water
quality violations and the victims of the sewage contamination
that results from those violations.17 Therefore, when command
and control regulation is used as the sole method of addressing
the wastewater infrastructure deciencies in rural areas, it has
not been proven to be effective.18
Policy makers must use regulation in tandem with other
policy solutions if they are to ameliorate this rural public health
crisis. It is critical that state and local leaders secure funding for
investment in wastewater projects, make wastewater infrastruc-
ture grants available to homeowners, and work with community
members on the ground to develop and implement solution strat-
egies.19 According to the EPA’s 2000 Community Water System
Survey, private capital markets serve as “the largest source of
infrastructure capital funds.”20 However, few Appalachian com-
munities or rural homeowners have sufcient credit to access
this private market.21 Therefore, it is important that policymak-
ers designate more capital to public entities through wastewater
infrastructure grant programs such as the Clean Water State
Revolving Fund (SFR), Water Pollution Control Grants, and
ARC Community Infrastructure Grants.22 Additionally, policy
makers should strive to make funding available to private enti-
ties, such as non-prots.23 After giving homeowners the oppor-
tunity to come into compliance with the NPDES permits, policy
makers should enact legislation that provides state regulators
with the resources and funding they need to effectively monitor
wastewater pollution.24 Bolstering state agency resources will
play a crucial role in the long-term success of a sewage-pollu-
tion mitigation regimes because state environmental regulatory
agencies will need additional funding to monitor newly installed
septic systems as they age so that these systems do not once
again fall into disrepair.25
*J.D. Candidate, American University Washington College of Law 2020
224813_AU_SDLP_Spg-Sum18.indd 30 10/18/18 1:53 PM
Spring/Summer 2018
In summary, raw sewage contamination in Appalachia is an
environmental injustice that creates unacceptable public health
risks and barriers to community and economic development.26
Policymakers must invest in basic wastewater infrastructure
projects and delegate more funding and resources to the agen-
cies charged with monitoring water quality if they are to revi-
talize the most marginalized and impoverished Appalachian
1 Examples of Community Infrastructure Projects, AppAlAchiAn REgl
structureProjects.asp (last visited Mar. 30, 2018); Nicholas Cook et al., Putting
Corporate Social Responsibility to Work in Mining Communities: Exploring
Community Needs for Central Appalachian Wastewater Treatment, REsouRcEs
190-91 (2015), (explaining that
homes located in remote, mountainous areas are unable to connect to municipal
wastewater systems and that thin soils make it excessively difcult to install
adequate septic tank systems); see also u.s. Envtl. pRotEction AgEncy,
REsponsE to congREss on usE of dEcEntRAlizEd WAstEWAtER tREAtmEnt
systEms, i (1997) [hereinafter REsponsE to congREss] (noting that when waste-
water systems in rural areas where rst built people utilized “the least costly
solution”, not the “most appropriate solution for the conditions”).
Jessica Lilly et al., Inside Appalachia: Water in the Coalelds, W. vA.
pub. bRoAd. (Jan. 16, 2015),
coalelds#stream/0 (dening straight pipes as “small diameter pipes that inten-
tionally bypass the sanitary connection or septic drain elds, producing a direct
discharge into open channels or streams”); Cook et al., supra note 1, at 191.
Cook et al., supra note 1, at 191; Jeff Hughes et al., Drinking Water and
Wastewater Infrastructure in Appalachia: An Analysis of Capital Funding and
Funding Gaps, unc Envt. fin. ctR. 4 (2005),
research_reports/DrinkingWaterandWastewaterInfrastructure.pdf (nding that
wells serve as the primary source of drinking water in “more than 75% of
households in portions of the Highlands.”); see also Arcipowski, Clean Water,
Clean Life: Promoting Healthier Accessible Water in Rural Appalachia 161
J. of contEmp. WAtER REs. & Educ. 1, 2 (2017) (noting that the EPA does not
regulate residential groundwater wells).
Cook et al., supra note 1, at 191; see also Arcipowski, supra note 3, at 2
(explaining that the fecal coliforms and Escherichia coli (E. Coli) found in raw
sewage can cause “abdominal cramping, diarrhea, dehydration, and even death,
if not treated”).
5 Lilly et al., supra note 2; see Hughes et al., supra note 3, at 51 (noting that
a 2004 EPA report found that there were 878 impaired streams in West Virginia
“that are too polluted to attain their designated use” and that the most common
sources of pollution were “mine drainage, bacterial contamination, and acid
John Herald, Straight Pipe Septic Systems, housE REsEARch 2 (Jan. 2004),; Arcipowski, supra
note 3, at 2 (nding that from 2012-2014, 64% of water quality testing sites in
the Red Bird River Watershed in Kentucky “exceeded the EPA threshold for
Escherichia coli”).
40 C.F.R. §122.2 (2017) (“Point source means any discernible, conned,
and discrete conveyance, including but not limited to, any pipe, ditch, channel,
tunnel, conduit, well, discrete ssure, container, rolling stock, concentrated
animal feeding operation, landll leachate collection system, vessel or other
oating craft from which pollutants are or may be discharged”).
Id. §122.21-41.
NPDES Permit Basics, u.s. Envtl. pRotEction AgEncy, https://www.epa.
gov/npdes/npdes-permit-basics (last visited Mar. 11, 2018).
Cook et al., supra note 1, at 191.
West Virginia Department of Environmental Protection, National Pollution
Discharge Elimination System (Mar. 2 2018, 4:08 PM)
permit/individual/pages/default.aspx (noting that in West Virginia, the NPDES
permitting process can take up to six months and require application fees rang-
ing from $50 to $15,000 depending on the scope of the discharge operation).
Herald, supra note 6, at 2 (explaining that it is difcult for states to address
straight pipes on private property because regulators don’t know where they are
REsponsE to congREss, supra note 1, at iii.
U.S. Environmental Protection Agency, Septic System Overview (Mar. 7,
2018), (noting that “very
few permitting agencies conduct regular inspections of septic systems after they
are installed”).
Herald, supra note 6, at 2. (explaining that the average septic system can
cost between $4,000 and $12,000 dollars).
See id. (noting fairness concerns about holding low income homeowners
accountable for straight pipes); see also Fahe, Appalachian Poverty, (Mar. 7,
2018), (noting that the poverty rate in the
combined Appalachia regions of Alabama, Kentucky, Tennessee, Virginia, and
West Virginia was 19.7% between 2010-2014).
Herald, supra note 6, at 2 (explaining that part of the reason Minnesota
failed to address their estimated 60,000 straight pipes discharging an estimated
6.75 million gallons of raw sewage into Minnesota waters every day was
because ofcials were reluctant to take action against homeowners who lacked
the nancial resources to install new septic systems).
See Gary O’Dell, Community Self-Help Activism in Water/Sewer Devel-
opment: Case Studies from McDowell County, West Virginia, and Letcher
County, Kentucky, 33.1 Appalachian J. 54, 72 (2005),
03e39a541 (nding that “the greatest obstacle to providing water and sewer
services is nancial” and emphasizing the need for citizen involvement in
wastewater management ); see also EPA, Initial Results of a Review of the
National Pollutant Discharge Elimination System Program in the State of
Minnesota, 19 (2013),les/2017-04/
documents/mn_petition_report_may-03-2013updated.pdf (conceding that “[w]
ithout upgrades to achieve proper treatment, it is highly doubtful that a straight
pipe system that is a ITPHS [Imminent Threat to Public Health or Safety] could
comply with the terms and conditions of an NPDES permit”).
Hughes et al., supra note 3, at 95.
Id. at 97-98; Examples of Community Infrastructure Projects, supra note 1.
REsponsE to congREss, supra note 1, at 8 (explaining that the EPA’s
construction grants program and the Clean Water SRF are “generally available
only to public entities”, and that it is difcult for “privately-owned systems” to
obtain public funds).
See id. (calling for states to “consolidate[e] legal authority for centralized
and decentralized wastewater systems under a single state agency”).
Septic System Overview, supra note 15.
Arcipowski, supra note 3, at 2 (noting a positive correlation “between lack
of access clean water and low socio-economic status”); see also Cook et al.,
supra note 1, at 191 (noting that the medical costs associated with waterborne
illnesses in the United States exceed $800,000,000 each year, “not including
lost work time and productivity”).
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