Clean Water Act
4 February 2009 The Clean Water Act (CWA) has as its objectives the restoration and maintenance of the chemical, physical, and biological integrity of the nation’s waters through the prohibition of the discharge of toxic pollutants into the navigable waters of the United States. Navigable waters include ponds, lakes, streams, rivers, wetlands, and literally all surface waters, regardless of navigability. EPA is responsible for developing regulations to implement these goals.
The act is made up of several elements:
- National Pollutant Discharge Elimination System (NPDES) permit program.
- Pretreatment standards for toxic pollutants introduced from non-domestic sources into publicly owned treatment works (POTW).
- Industry-specific toxic pollutant effluent limitations and guidelines for existing and new sources.
- Oil and hazardous substance liability provisions.
- Spill prevention control and countermeasure (SPCC) planning.
- Nonpoint source agricultural pollution control mechanisms under Section 319.
The CWA affects all industries that produce wastewater discharges, and it can have major impact on fertilizer and pesticide manufacturing facilities. Section 307 of CWA requires EPA to issue a list of toxic pollutants and to establish effluent limits for discharges of these pollutants. The toxic pollutants include 65 chemicals plus chemical categories.
These chemicals and chemical categories are ranked by EPA according to occurrence and risk, resulting in 126 chemicals, known as priority pollutants, which are required to be regulated. These priority pollutants are incorporated into effluent guidelines and pretreatment standards. The priority pollutants include several pesticides which may have either specific discharge limits or a “no discharge” limit as with aldrin/dieldrin, DDT, endrin, and others.
The Clean Water Action Plan
The Clean Water Action Plan, announced by President Clinton and Vice President Gore on Feb. 19, 1998, focuses in part on the use of agricultural pesticides and fertilizers and their impact on water pollution. To carry out the initiative, the president proposed substantial new resources aimed at improving water quality and unifying ongoing EPA water programs. The plan calls for the following initiatives which may impact pesticide and fertilizer use on the farm when implemented:
- New assistance to states to curb polluted runoff and encourage adoption of enforceable controls.
- Numeric criteria for nutrients (i.e., nitrogen and phosphorus) in water bodies by 2000 and initiation of standards to enforce them if states fail.
- Increased incentives and providing over $100 million in new resources to help farmers control polluted runoff, create 2 million miles of buffers, and development of pollution prevention plans.
- Increase wetland acres.
- Approval of state programs to reduce polluted runoff in coastal areas by December 1999.
- Expand citizen’s right to know.
- Establish American Heritage Rivers program.
NPDES Permit Program
The EPA’s NPDES permit program regulates point sources or discreet discharges (pipes, ditches, channels, etc.). Section 301 of the Act establishes uniform national standards for discharges of each type of pollutant from each category of industrial point source, including fertilizer and pesticide manufacture. In general, NPDES permit limits include conventional pollutants such as Biochemical Oxygen Demand (BOD), Chemical Oxygen Demand (COD), pH, etc., as well as many specific toxic substances and “Hazardous Substances” including the “Priority Pollutants” (40 CFR Section 423, Appendix A). Many of these chemicals are pesticides or inert ingredients used in pesticide formulations.
Guidelines for NPDES permit writers and state water quality standards are included in Section 304. EPA published effluent guidelines and standards for pesticide chemicals in 40 CFR 455. These guidelines and standards are based upon the application of the “Best Practicable Control Technology Currently Available” (BPT). Subpart A covers the Organic Pesticide Chemicals Manufacturing Subcategory. The Metallo-Organic Pesticides Chemicals Manufacturing Subcategory is dealt with in Subpart B, while the Pesticide Chemicals Formulating and Packaging Subcategory is regulated in Subpart C. Organic chemical pesticide manufacturing has conventional pollutant criteria (BOD, COD, pH, etc.) and quantitative criteria for the active ingredient. A guideline of “no discharge” to navigable waters was set for metallo-organic pesticide manufacturing, and for pesticide chemical formulating and packaging. In addition, many states now require bioassay testing to maintain water quality standards.
Discharges of effluent from industry and other non-domestic sources to a publicly owned treatment works do not require a Federal NPDES permit (state regulations occasionally mandate permits), but may be subject to pretreatment regulations. EPA issued pretreatment standards for the pesticide industry which regulate the indirect discharge through POTWs. These standards have been challenged in court by the industry and were remanded to EPA until the issue is settled. Thus, pesticide industry discharges into a publicly owned treatment works are currently subject only to general pollution discharge prohibitions imposed by the POTW. Both the industrial discharger and the treatment works must have a program in effect to assure compliance with pretreatment limitations and guidelines.
In April 1992, EPA issued a proposed rule covering the first two Subcategories, i.e., Organic Pesticide Chemicals and Metallo-Organic Pesticides Chemicals Manufacturing. In the case of the former, EPA intends to expand the BPT requirements to an additional 15 organic and all organotin pesticide active ingredients, and to require the use of “Best Available Technology Economically Achievable” (BAT) for existing facilities; EPA is proposing New Source Performance Standards (NSPS) for new facilities. NSPS are based on best available demonstrated treatment technologies for all pollutants (i.e., conventional, nonconventional, and priority). Facilities that indirectly discharge through a POTW would be subject to Pretreatment Standards for Existing Sources (PSES) or New Sources (PSNS); pretreatment standards are technology-based and analogous to BAT effluent limitations.
As discussed above, current BAT limitations for Subcategory B (Metallo-Organic Pesticide Chemicals Manufacturing) require no discharge of process wastewater pollutants. EPA is making no change to these limitations, but is proposing to reserve BPT, BAT, NSPS, PSES, and PSNS for this subcategory.
EPA is also proposing to add a new Subpart D which incorporates analytical methods to be used in determining compliance with the proposed effluent limitation guidelines and standards.
The effluent guidelines and standards for fertilizer manufacturing are found in 40 Part 418. The following subcategories are covered:
| Subcategory | Subpart | |
| Phosphate | A | |
| Ammonia | B | |
| Urea | C | |
| Ammonium Nitrate | D | |
| Nitric Acid | E | |
| Ammonium Sulfate | F | |
| Mixed and Blend Fertilizer Production | G | |
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These effluent guidelines cover both direct and indirect discharges. |
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Stormwater Discharge Permits
In November 1990, EPA issued regulations which require NPDES permits for stormwater discharges which are “associated with industrial activity” (55 Federal Register pp. 47990-48091). Such discharges occur through any conveyance (pipe, channel, ditches, etc.), and must be directly related to manufacturing, processing, or raw materials storage areas at an industrial plant. They do not include areas separate from the plant’s industrial activities, such as office buildings and accompanying parking lots, provided the drainage from these areas is not mixed with waters from the industrial portion of the plant. The regulations (40 CFR 126) specify, by standard industrial code (SIC), which types of industrial facilities are covered; pesticide manufacturing and processing, and fertilizer manufacturing are included. Under this rule, a facility must, in general, obtain a permit individually, as part of a group application, or under a general permit covering a large area. However, since effluent guidelines for stormwater from the fertilizer manufacturing sector have been issued (40 CFR 418), no action is needed if the facility has a current NPDES permit. When the permit expires, the facility must apply for an individual permit.
In August 1995, the EPA issued a final rule which establishes a sequential application process in two tiers for all phase II storm water discharges and a six-year application process. Due to the changes in storm water permitting procedures and ongoing legislative activity, please consult federal and state permitting authorities before undertaking any permit activities.
It is important to note that a permit is required even if the discharge occurs through a municipal or nonmunicipal separate storm sewer. If the discharge is through a municipal separate storm sewer system, additional notifications must be made to the operator of the system (40 CFR 122.26(a)(4)).
Discharge Of Hazardous Wastes
In another important rulemaking, EPA issued regulations addressing hazardous wastes which are discharged to a POTW on or after August 23, 1990. This rule impacts all industrial users subject to Categorical Pretreatment Standards, and industrial plants discharging more than 25,000 gallons per day or contributing more than 5% of the sewer system capacity. A covered facility must determine if its sewer discharge, if otherwise disposed of, would be a hazardous waste by characterizing it according to Resource Conservation and Recovery Act (RCRA) procedures (40 CFR 262.11). If it is determined to be hazardous, then each POTW receiving hazardous waste, as well as regional EPA offices and state agencies, must be notified of the type of discharge, and its RCRA classification; for discharges which exceed 100 kg/month, detailed information on identification and quantity of hazardous constituents is also required. Additional reporting is required of Significant Noncategorial Industrial Users. All Industrial Users must notify their POTWs of any substantial changes in the volume or character of pollutants.
In addition, the following are prohibited:
- Waste streams with flashpoints below 140°F.
- Discharges causing toxic gases, vapors, or fumes within the POTW.
- Oils or greases that will interfere with, or pass through, the POTW.
- Discharge of truck and hauled wastes, except at discharge points designated by the POTW.
Certain fertilizers, pesticides, and many compounds used in pesticide formulations as inert ingredients are included in CWA Section 311 Oil and Hazardous Substance List. Owners and operators of onshore and offshore manufacturing or formulating facilities must immediately notify the National Response Center (Telephone: 800-424-8802) of any discharge of a Section 311 substance, in excess of designated quantities, into navigable waters.
EPA requires all facilities that store oil in tanks, including petroleum oil, fuel oil, sludge, etc., above certain quantity limits, to prepare and implement a Spill Prevention Control and Countermeasure (SPCC) plan if the facility has the potential for discharging any oil into navigable waters (40 CFR 112). The plan must provide for preventing, controlling, and cleaning up a spill. It must be kept at the facility and provided to EPA upon request. Additional regulations requiring SPCC plans for hazardous substances have been proposed, but have not yet been issued.
Effluent Limitations
In November 1996, EPA issued a final regulation that limits the discharge of pollutants into navigable waters of the United States and into publicly owned treatment works by existing and new facilities that formulate, package, and repackage pesticide products (40 CFR 455). The regulation covers two subcategories of the Pesticide Chemicals Point Source Category:
- Subcategory C: Pesticide Formulating, Packaging, and Repacking (PFPR), which include PFPR facilities that also manufacture pesticide active ingredients.
- Subcategory E: Agricultural Refilling Establishments.
The regulation, which became effective in January 1997, sets effluent limitations under the Clean Water Act. Under the rule, refilling establishments are required to achieve zero discharge of wastewater pollutants. PFPR facilities are given a choice between zero discharge and a “Pollution Prevention Alternative.” This latter option makes compliance possible through the implementation of certain pollution prevention, recycle, and reuse practices. Facilities employing this alternative receive a discharge allowance.
Great Lakes Initiative
The EPA and the Great Lakes states began a voluntary effort in 1989 to work cooperatively on improving the water quality of the Great Lakes by developing uniform water quality standards for the Great Lakes Basin. This effort was the result of the Great Lakes Water Quality Agreement between the U.S. and Canada, which became mandatory in 1990 under the Great Lakes Critical Programs Act.
The Act set specific deadlines for the EPA to promulgate guidance on minimum water quality standards, implementation procedures, and antidegradation policy with final guidance to be published by June 1992. However, the Great Lakes Water Quality Initiative (GLI) was slowed by the controversy generated in the development of the draft guidance. As required by the 1992 decision in National Wildlife Federation v. EPA, EPA issued the final guidance for the GLI in March 1995 (60 FR 15336).
Following a period of intense debate, EPA issued the final GLI rule in March 1996, despite sharp criticism from industry and others. States must adopt the rule’s criteria and procedures into their water quality and wildlife protection standards and NPDES permit programs or EPA will promulgate the provisions for them. Great Lakes industries are currently suing EPA to halt or influence the implementation of GLI.
When GLI is fully implemented, farmers and other pesticide users in the basin will probably be subjected to limits on runoff under the Total Maximum Daily Load (TMDL) schemes, to be achieved through reduced runoff, lower use rates, changes in timing of application, and conservation tillage methods designed to keep sediments with attached pesticides and nutrients from leaving the cropland.
In June 1997, a United States Court of Appeals dismissed the majority of claims brought by industry against the EPA’s water pollution control regulations for limiting the discharge of bioaccumulative toxics into the Great Lakes Basin. The court, however, ruled in favor of the industry on two claims. First the court vacated provisions that required states to regulate internal waste streams of industrial facilities. Second, the court vacated a section of the guidelines that would phase out the use of mixing zones. Despite this latter holding, the EPA still is urging the eight Great Lakes states to phase out clean water mixing zones. Moreover, the EPA intends to repropose the phase-out as an independent rule and fully expects it to pass legal muster since the court’s earlier rejection was essentially based on procedural – and not substantive – grounds.
Nonpoint Source Pollution
Nonpoint source water pollution is the subject of a study currently being drafted by EPA in conjunction with the Environmental Law Institute (ELI). The study is to examine state pollution laws governing nonpoint sources such as agriculture, forestry, and urban runoff. The report’s findings will be used by the EPA to formulate proposals to control nonpoint source pollution. Such proposals are likely to be part of future discussions concerning the reauthorization of the Clean Water Act, which Congress will probably not take up until 2000.
In May 1996, EPA published national Nonpoint Source Program and Grants Guidance. The overall vision of the program is to implement effective nonpoint source programs to achieve and maintain beneficial uses of water by 2013. The vision coordinates existing CWA and other water programs to reach the goal. These programs include: Upgrade of State 319 programs, implementation of CZARA, implementation of new TMDL guidance, improve identification of water impaired by nonpoint sources, improve Water Quality Standards Guidance for Nutrients, and implementation of SDWA amendments.
Total Maximum Daily Loads (TMDL)
As established by section 303(d) of the CWA, the TMDL program is designed to identify sources of pollution (including nonpoint sources), specify the amount of pollutant that may be reduced to meet state water quality standards, and allocate pollution control responsibilities among pollution sources in watersheds where water quality goals are yet to be achieved. Under the program, states must develop lists of impaired waters that do not meet state water quality standards, even after point sources of pollution have installed the minimum required levels of pollution control technology.
On May 20, 1998 the TMDL Federal Advisory Committee issued a final report which listed a number of recommendations for improving water quality. Specific to agriculture were recommendations that a combination of non-point source best management practices along with existing and new controls adopted for point sources are to be sufficient to meet water quality standards. The report also left it open to States to impose “regulatory” measures to reduce non-point source pollution impacting water quality.
On August 23, 1999, EPA issued proposed rules to revise, clarify and strengthen the current regulatory requirements for identifying impaired waters and establishing TMDLs under the Clean Water Act. The public comment period on the proposed regulations were extended to January 20, 2000 due to concerns of the agricultural community. The proposed TMDL rules have the objective of making further progress towards attaining water quality standards in impaired water bodies. The key agricultural issue involving the new TMDL requirement is that they would likely result in stringent regulations to reduce non-point source pollution from agriculture in areas where water does not meet existing water quality standards. The agricultural community is currently opposing imposition of TMDLs for non-point source pollution based on a lack of authority under the Clean Water Act. The regulations are expected to be finalized before the end of the year 2000.
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