Title: Water Use Difficult Decisions For the 90's/Ethica; Considerations and Concluding Remarks on Federal Water Pollution Regulations/Outline of Presentation by Professor Joel A. Mintz/Nova University Law Center, FT Lauderdale, Fl - May 27, 1988
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Title: Water Use Difficult Decisions For the 90's/Ethica; Considerations and Concluding Remarks on Federal Water Pollution Regulations/Outline of Presentation by Professor Joel A. Mintz/Nova University Law Center, FT Lauderdale, Fl - May 27, 1988
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Richard Hamann Collection - Water Use Difficult Decisions For the 90's/Ethica; Considerations and Concluding Remarks on Federal Water Pollution Regulations/Outline of Presentation by Professor Joel A. Mintz/Nova University Law Center, FT Lauderdale, Fl - May 27, 1988
General Note: Box 25, Folder 1 ( Water Use - Difficult Decisions for the 90's - 1988 ), Item 2
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004670
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
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Water Use Difficult Decisions For the 90's
Ethical Considerations and Concluding Remarks
on Federal Water Pollution Reguatinns
Outline of Presentation by Professo Joel A. Mintz
Nova University Law Center, Ft. Lauderdale,
May 27, 1988


I. RECENT DEVELOPMENTS IN FEDERAL LEGISLATION TO CONTROL
SURFACE WATER POLLUTION

a. Some Key Aspects of the Federal Water Pollution Control
Act of 1972 (as amended in 1977).

1. In 1972, Congress amended the Federal Water
Pollution Control Act to create a technology-
based program of water pollution reduction,
enforced through a permit program called, the
National Pollutant Discharge Elimination System
(NPDES).

2. The declared objective of the Act was to "restore
and maintain the chemical, physical and biological
integrity of the nation's waters."

3. To attain this objective, as well as the Congress'
goal that the discharge of pollutants into
navigable waters be completely eliminated, the
statute set forth strict schedules for achieving
technology-based limitations on surface water
pollution. These compliance dates were revised
when the Act was amended in 1977.

a. By July 1, 1987, existing industrial
dischargers were required to achieve effluent
limitations based upon the application of
best practicable control technology currently
available (BPT).

b. By July 1, 1984, existing dischargers were
required to comply with limitations on the
discharge of toxic pollutants based upon
application of best available control
technology economically achievable (BAT).

c. Direct dischargers had to achieve effluent
limitations based on best conventional
pollutant control technology (BCT) by July 1,
1984 for conventional pollutants (e.g. fecal
coliform, BOD, suspended solids, etc.).

d. Direct dischargers were required to achieve
BAT for non-toxic, non-conventional











pollutants within three years after
promulgation of applicable regulations but in
no event later than July 1, 1987.

4. To encourage municipalities to properly treat
domestic sanitary wastes, the Act established a
federal construction grant program, under which
the federal government would fund 75% of the cost
of construction of publicly owned sewage treatment
works.

5. The Act provided for federal enforcement against
violators of applicable provisions. The federal
government was provided with several enforcement
tools, including notices of violation,
administrative orders, civil actions and criminal
prosecutions.

6. First-time violators of the Act were potentially
subject to judicial civil penalties "not to exceed
$10,000 per day of violation" and/or criminal
penalties of from $2,500 to $25,000 per day of
violation (or imprisonment for not more than one
year).

B. Critical Changes Made By The Water Quality Act of 1987

1. In 1987, Congress passed the Water Quality Act of
1987 over President Reagan's veto. This statute
amended the Federal Water Pollution Control Act in
a number of significant respects. (For a thorough
summary see L. R. Liebesman and E. P. Lewis, The
Water Quality Act of 1987: A Major Step in
Assuring The Quality of The Nation's Waters, 17
ELR, News and Analysis 10311, August, 1987)

2. Compliance Deadlines. In recognition of the
difficulties experienced by some dischargers as a
result of delays by the EPA in promulgating
effluent guidelines for various industrial
categories, Congress extended several of the
compliance deadlines it established in 1977.

a. The compliance date for meeting effluent
limitations for both conventional and toxic
pollutants was extended to no later than
three years after the date those limitations
are promulgated and in no case later than
March 31, 1989. 33 U.S.C. 1311(b)(2)(C)(D)
and (E).

b. Congress also decided that where the EPA does











not promulgate effluent limitations in
sufficient time to allow for compliance by
March 31, 1989, the Agency is authorized to
issue administrative orders to non-complying
companies which specify schedules of
compliance "as expeditiously as practicable,
but not later than three years after permit
issuance."

3. Construction Grants. For fiscal reasons, Congress
decided to phase out the municipal sewage
treatment plant construction grants program by
1990.

a. To replace the grants program, the Act
established a "revolving loan program" under
which states that receive federal
capitalization grant monies between 1990 and
1994 are required to repay all of those funds
within one year of their receipt and to
provide additional cash contributions that
total 20% of the federal contribution.

4. Penalties.

a. Administrative Penalties

The Act authorized the EPA to assess
administrative penalties under the Clean
Water Act. The Act created two classes of
penalties which differ with respect to
procedure and maximum assessment.

1. Class I penalties may not exceed $10,000
per violation and a maximum amount of
$25,000. They may be challenged by
persons subject to them in informal
administrative hearings and ultimately
in Federal District Court.


2. Class II penalties may not exceed
$10,000 per day of violation with a
maximum amount of $125,000. They may
? only be collected after notice and an
S opportunity for a formal hearing before
an administrative law judge. They may
ultimately be challenged in a United
States Court of Appeals.


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b. Judicial Penalties


1. The Water Quality Act raised the maximum











judicial penalty from $10,000 per day of
violation t $25,000 per day of
violation.

2. The Act also provided that persons who
knowingly violate certain Clean Water
Act requirements are subject to
increased criminal penalties of not less
than $5,000 or more than $50,000 per day
of violation and/or imprisonment for up
to three years.

5. Variances

a. Under the Water Quality Act, the EPA
Administrator was authorized to grant
variances to individual facilities from
minimum, national treatment requirements
where those facilities are found to be
"fundamentally different" from other
facilities within the industry.

b. In issuing these variances the Agency must
take account of specific factors such as the
age of the equipment and facilities involved,
the process employed, process changes, non-
water quality environmental impact, etc.

6. Nonpoint Source Pollution Management

a. The Water Quality Act created the first
national program to minimize water pollution
problems from nonpoint sources, i.e. water
pollution which results from rainfall runoff
from farms, streets, construction sites,
silviculture,, etc., as opposed to industrial
or municipal pollution which is discharged
through an outfall or some other
"discernible, confined and discrete
conveyance."

b. Under the Act the states are required to
identify water bodies where nonpoint source
pollution control is needed and to prepare
and implement a strategy which includes "best
management practices and measures" to reduce
nonpoint source pollution of those waters.












7. Sewage Sludge

a. In recognition of the fact that sewage sludge
sometimes contains toxic pollutants that
adversely affect public health, Congress
directed the EPA Administrator to identify
such toxic pollutants and to specify
numerical limitations for each pollutant.

b. The Administrator must also impose conditions
in NPDES permits issued to publicly owned
treatment works to protect the public from
the adverse effects of contaminated sewage
sludge.

8. Stormwater Discharges

a. Concerned about the contamination of our
nation's waters by discharges of stormwater
from municipal and industrial point sources,
Congress mandated that the EPA issue permits
to limit such discharges within three years
if the storm sewer system serves a population
of 250,000 or more rS- i ,

b. Stormwater discharge permits must require
controls to reduce stormwater pollution to
the "maximum extent practicable" including
management practices and design and
engineering methods.

9. Anti-Backsliding

a. The Water Quality Act prohibits the EPA from
re-issuing NPDES permits that contain
effluent limitations less stringent than
those contained in the previous permit.
Exceptions are allowed where technical
mistakes were made in issuing the original
permit or where events have occurred over
which the permitted has no control and for
which there is no reasonably available
remedy.

b. However, no permit may be renewed, re-issued
or modified to contain an effluent limitation
that is less stringent than required by
currently effective effluent guidelines.











II. ETHICAL PROBLEMS ARISING IN ENVIRONMENTAL PRACTICE

A. You are a member of the Florida Bar employed as an
enforcement attorney by the Office of Regional Council
of Region IV of the U.S. Environmental Protection
Agency in Atlanta. You have obtained credible
information which convinces you that the Florida Paper
Company, of Jacksonville, Florida, has, through its
officers and employees, knowingly violated effluent
limitations contained in the company's NPDES permit.
Under Section 309 of the Clean Water Act, you Agency is
authorized to pursue one or more of several enforcement
actions against knowing violators of NPDES permits,
including the issuance of an administrative order, the
initiation of a civil action and the institution of a
criminal prosecution. After reviewing these options
and discussing the matter with your supervisor, you
have determined that it is most advantageous to your
Agency to resolve the Florida Paper Company case by
negotiating a Civil Consent Decree with the Company,
which requires it to comply with applicable permit
limitations by a date certain and to pay a substantial
sum in civil penalties. In attempting to negotiate
such a Consent Decree with attorneys for the Company
are you permitted, under the Florida Rules of
Professional Conduct, to indicate to the Company's
attorneys that unless the Company signs a Consent
Decree on terms acceptable to the Agency, you will
recommend that the Department of Justice initiate a
criminal prosecution of the Company and its officers?

B. You are an attorney in private practice. One of your
clients, the Ajax Iron and Steel Company, has been sued
by the U.S. Environmental Protection Agency for
violating the effluent limitations of its NPDES permit.
At a deposition in this suit, at which you are present,
your client's Vice President of Environmental Affairs,
responding to questions posed by government attorneys,
states that eight months earlier Ajax had contracted to
purchase secondary treatment equipment to reduce its
discharge of several water pollutants. In fact, you are
certain that this statement is not true. In a meeting
with you the day before, the same Vice President had
told you that Ajax had only arranged to purchase a
primary treatment system to control its wastewater
discharge. That was confirmed by several company










7

documents which you reviewed. If the government' s
attorneys are supplied the correct information on this
point it will materially improve their chances of
recovering substantial civil penalties against your
client. What are your ethical obligations in this
situation under the Florida Rules of Professional
Conduct?




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