Clean Water Act

Purpose and Organization

The Clean Water Act (CWA), formerly known as the Federal Water Pollution Control Act, intended to ". . .restore and maintain the chemical, physical, and biological integrity of the Nation's waters" (Section 101). To accomplish that objective, the act aimed to attain a level of water quality that "provides for the protection and propagation of fish, shellfish, and wildlife, and provides for recreation in and on the water" by 1983 and to eliminate the discharge of pollutants into navigable waters by 1985.

The CWA has five main elements: (1) a system of minimum national effluent standards for each industry, (2) water quality standards, (3) a discharge permit program that translates these standards into enforceable limits, (4) provisions for special problems such as toxic chemicals and oil spills, and (5) a revolving construction loan program (formerly a grant program) for publicly-owned treatment works (POTWs).

The CWA requires the EPA to establish effluent limitations for the amounts of specific pollutants that may be discharged by municipal sewage plants and industrial facilities. The two-step approach to setting the standards includes: (1) establishing a nationwide, base-level treatment through an assessment of what is technologically and economically achievable for a particular industry and (2) requiring more stringent levels of treatment for specific plants if necessary to achieve water quality objectives for the particular body of water into which that plant discharges. For example, EPA sets limits based on water quality to control pollution in waters designated by the states for drinking, swimming, or fishing.

The primary method by which the act imposes limitations on pollutant discharges is the nationwide permit program established under Section 402 and referred to as the National Pollutant Discharge Elimination System (NPDES). Under the NPDES program any person responsible for the discharge of a pollutant or pollutants into any waters of the United States from any point source must apply for and obtain a permit.

Applicability of the CWA to DOE

The sections of the act most relevant to DOE deal with requirements for technology-based effluent limitations (Section 301), water quality-based effluent limitations (Section 302), individual control strategies for toxic pollutants [Section 304(l)], new source performance standards (Section 306), regulation of toxics and indirect discharges (Section 307), federal facilities' pollution control (provisions for presidential exemption) (Section 313), thermal discharges (Section 316), permits under the NPDES (Section 402), and permits for the discharge of dredged or fill materials into navigable waters (Section 404).

All DOE facilities that discharge wastewaters to either a surface water body or a POTW must comply with the CWA. Facilities that directly discharge wastewaters must obtain an NPDES permit (Section 402). This permit specifies the discharge standards and monitoring and reporting requirements that the facility must achieve for each point source or outfall.

For industrial facilities that existed before July 1, 1977, the "best conventional technology" must be applied to the discharge stream for conventional pollutants (Section 301). For facilities built after July 1, 1977, so-called "new" facilities, the National Standards of Performance apply.

When either an existing or new facility discharges toxic pollutants, more stringent controls are required. The regulations for toxics are based on "best available technology economically achievable" (Section 307). In all cases NPDES permits can be made even more stringent than the above standards if the specific water body in question requires lower discharges of pollutants to meet water quality standards (Sections 302 and 303).

Facilities that discharge to a municipal or publicly-owned wastewater system do not have to obtain an NPDES permit, but they must follow the pretreatment regulations (Section 307). These pretreatment regulations require that industrial dischargers remove or treat all pollutants that could pass through the municipal system untreated or could adversely affect the performance of the municipal system. Toxic pollutants are the primary concern of these regulations.

Radioactive Discharges under the CWA

Section 502(6) of the CWA defines the term pollutant to include radioactive materials. In its implementing regulations (40 CFR Part 122 in particular), however, EPA refined the definition of pollutant to exclude radioactive materials regulated under the AEA of 1954, as amended. Thus, although the CWA and its implementing regulations clearly apply to naturally occurring (e.g., radium) and accelerator-produced radioisotopes, they do not apply to source, byproduct, or special nuclear materials as defined by the AEA.

The U.S. Supreme Court, in Train v. Colorado Public Interest Research Group, Inc. [426 U.S. 1 (1976)], agreed with EPA's interpretation of the language in both the CWA and the AEA (i.e., that source, byproduct, and special nuclear material are subject to regulation under the AEA, but not the CWA). DOE discharges containing radioactive materials that are not source, byproduct, or special nuclear materials are regulated under the CWA by EPA or states having an EPA-authorized permit program.

In many DOE operations these materials could constitute the principal radioactive contaminants present in plant effluents and would, therefore, be subject only to DOE or NRC regulation and not to EPA or state regulation under the CWA. DOE facilities should be aware, however, of DOE's own May 1, 1987, final rule (52 FR 15937, 10 CFR Part 962) that states that the nonradioactive hazardous component of a waste stream containing byproduct material (as defined in the first definition of the term above) is subject to EPA regulation under RCRA.

In a different section of the CWA Congress is unequivocal in its language relative to two specific types of radioactive materials. Section 301(f) of the CWA states that ". . .it shall be unlawful to discharge any radiological . . .warfare agent or high-level radioactive waste into the navigable waters." DOE facilities are, of course, obligated to observe this ban.

Note that, quite apart from the CWA, states may under certain circumstances exercise a limited role in the regulation of these materials. Until Section 274 was added to the AEA in 1959, states had no role in the licensing and regulation of source, byproduct, or special nuclear materials. Section 274, however, provided a statutory basis by which states could assume from the NRC a measure of authority over the regulation of byproduct and source materials and special nuclear materials in quantities not sufficient to form a critical mass. To effect this transfer of authority, (1) the NRC must find that the state's radiation control program is compatible with NRC's and that it is adequate to protect public health and safety, (2) the state must establish its authority to enter into an agreement with the NRC, and (3) the NRC must enter into an agreement with the governor of the state desiring such authority.

Thus far, 29 states have entered into such agreements with the NRC. Even in agreement states, however, the NRC retains regulatory authority over several important areas, including construction and operation of production and utilization facilities and disposal of certain source, byproduct, and special nuclear materials [AEA, Section 274(c)]. In any event, state regulatory authority established under AEA Section 274 does not extend to DOE facilities.

Discharge of Dredged or Fill Materials

Section 404 enables the Corps of Engineers in the Department of the Army to issue permits for the discharge of dredged or fill materials into waters of the United States at specific sites. The Corps specifies a site by applying guidelines promulgated by the EPA (40 CFR Part 230). Further, any proposal to dump dredged or fill materials into the ocean must comply with the dumping criteria set forth in regulations implementing Section 227.13 of the Marine Protection, Research, and Sanctuaries Act (MPRSA).

Under Subsection 404(c) of the CWA, EPA can prohibit or limit the use of a proposed disposal site or withdraw an already designated site, under regulations codified at 40 CFR Part 231. This determination may occur if EPA foresees unacceptable impacts on municipal water supplies, shellfish beds, fishery areas, or wildlife and recreational areas. However, such a determination must be made after consultation with both the Corps and the permit applicant.

A significant feature of Section 404 is that the Corps may issue General Permits on a state, regional, or nationwide basis for dredging or fill activities that are similar in nature and cause only minimal individual and cumulative adverse impacts. General Permits are granted for a period not to exceed five years. The Corps issues Individual Permits for actions that have a potential for significant environmental impacts.

Various dredged and fill material disposal activities are excluded from CWA Section 404 permitting requirements unless the action (1) alters the use of navigable waters or (2) impairs the flow of those waters. Actions thus excluded from permitting that may pertain to DOE projects include maintenance or emergency construction on damaged dams, transportation structures and related structures, drainage ditch maintenance, construction of temporary sediment basins at construction sites, and temporary road construction for moving mining equipment. Placement of riprap and construction of new dams also fall under the purview of Section 404 permits.

Much of the remainder of Section 404 deals with the role of the Corps and EPA in state-administered programs in which states elect to issue dredge and fill permits themselves. In these cases EPA and the Corps review state programs and assure coordination with federal water-related programs, and EPA receives copies of all permit applications.