Federal/State Environmental Laws

1. Federal/State Environmental Laws

2. Clean Water Act (1972) • All streams fishable and swimmable by 1983 • No discharges to “navigable waters” by 1985 • Extent of jurisdiction has been an issue - state law gives more comprehensive definition • National Pollutant Discharge Elimination System • Individual/General Permits • DMR’s • Technology Based Standards for Categories of Sources • National Water Quality Criteria • State Water Quality Standards and Water Body Assessments • TMDLs for water bodies that do not meet standards

3. CWA (cont’d) • Grant Programs • Publicly Owned Treatment Works (POTW-sewage plant) - about $70 billion • 1987 Amendments • Storm water discharge regulations • Non-Point Source Program • Moved from grant program to loan program for POTWs • Still Major Gaps in needs vs. funding

4. Washington CWA • Administered largely by Ecology • Waters of the State – 90.48.020 • Very broad – covers all fresh and salt water bodies and watercourses AND covers all groundwater resources • Ecology Sets Surface water standards • Classified from AA through C, with Lake Class • AA = all water supply, stock, fish habitat, recreation • C = industrial supply, commerce, navigation

5. Washington CWA • Ecology reviews applications and issues NPDES Permits • Includes proposals for sewage treatment plants • Commercial, municipal, and industrial discharges into waters of the state must have NPDES Permit from Ecology or EFSEC • Local government can develop their own program to be approved by Ecology • Coordination with Forest Practices rules and regulations • Implementing 1987 CWA requirements for stormwater regulations and permits

6. Stormwater General Permits • Cover: • Municipal Stormwater Sewer Systems (MS4s) located in • Cities and counties with populations greater than 100,000 - Phase I • All “urbanized areas” as defined by Census Bureau • Secondary Permittees - Ports, Parks, Universities, Prisons • Industrial Facilities • Construction Sites • > 5 Acres -Phase I, or >1 Acre - Phase II • Standards • Must use develop Stormwater Pollution Prevention Plan and use Best Management Practices (BMPs) • Flow control requirements to address peak flows • Erosion control requirements from construction sites • Sampling Requirements

7. CWA - Wetlands • Covered in CWA Section 404 • Permit requirements for dredge/fill in navigable waters, including wetlands • Jointly implemented by EPA/Corps • State Issues 401 Certification • Corps Issues Permits • EPA issues guidance, has veto power • Largely federal program, few states have full delegation • All states have 401 Certification Authority

8. CWA - EIA Issues (IHS Page 121) • Dredge and Fill Activities • Discharges to Rivers • Storm water Permit Requirements

9. Safe Drinking Water Act - 1974 • Some DW & Standards go back to 1950’s and before • Current System regulates all systems supplying 25 or more residents - currently about 170,000 in US • Variety of regulated (over 150) systems in King County • National health based standards - natural and man made pollutants • Maximum contaminant level goals • Maximum contaminant levels • Primary/secondary drinking water standards • State revolving fund

10. SDWA con’t • 1996 Amendments • Consumer confidence reports • Source water protection programs • Sole Source Aquifers IHS p 130 • 2002 Amendments - Focus on Drinking Water Security • Vulnerability assessments and response plans • In Washington administered by Department of Health (DOH)

11. Clean Air Act (1970) • First clean air legislation with major regulatory authorities • National Ambient Air Quality Standards • State Control Programs to Achieve NAAQS • Special controls for non-attainment areas • Big impact on WA state metro areas • WA State areas are meeting standards • Technology Based Standards for New/Modified Sources • Apply more stringent controls as industry modernizes • How this (New Source Review) is done has become a major controversy

12. CAA - con’t • Mobile Source (car/truck) controls • Emission standards for categories of sources • Regulation of fuels (i.e. lead) • 1990 Amendments • Toxic Air Pollutants • Stratospheric Ozone Provisions - Title VI • Implements Montreal Protocol • Production of CFCs stopped, distribution of new products banned • Predictions call for long recovery time

13. Washington CAA • Multi-county authorities established to monitor and enforce air quality laws • Puget Sound Clean Air Agency (PSCAA) • Other Single & Multi-county Agencies • Ecology covers all other areas • General enforcement authorities and powers similar to EPA’s under CAA

14. Washington CAA • All air contaminant sources must obtain renewable permits • 5 year period • Can be modified or amended at request of permitee • Local air authority can apply to operate permit system • Includes agricultural burning (wheat, weed, bluegrass, etc…) • Vehicle Emission Program

15. CAA-EIA Issues • No impact on NAAQS or PSD Increments • Conformity - p 177 • Applies to “federal actions” • Need to show consistency with SIP • Additional requirements for hazardous air pollutants - p 176

16. RCRA (1976) • Cradle to grave control of hazardous waste • Complex definition (i.e. solid waste includes liquids, gases) • Regulations for generators, transporters, treatment, disposal facilities • Law also regulates USTs, solid waste facilities

17. RCRA • Hazardous Waste Manifest (Subtitle C) • Cradle to grave tracking system • Permits (Subtitle C) • Complex, stringent process for HW treatment facilities • Sanitary Landfills (Subtitle D) • Largely state run with EPA guidance • Leaking Underground Storage Tanks (Subtitle I) • Design, construction, operation • Clean-up of spills, including a federal fund (LUST)

18. Washington Haz Waste Law • State Specific Definitions - Generally Broader, Still Complicated • Dangerous Waste = all discarded or abandoned materials which pose a hazard to human health and environment • Extremely Hazardous Waste = all dangerous waste which: • will persist; presents a significant environmental hazard; or is highly toxic; • Hazardous Waste = all dangerous waste that “designates” as hazardous waste and all extremely hazardous waste • Generators Divided into Small, Medium, Large • Different Requirements for Each

19. TSCA (1976) • Previous laws gave government power to act only after damage from toxics chemicals occurred • TSCA Regulates chemicals in three main ways • Testing and possible regulation for existing chemicals (testing done, not much regulation) • Premanufacturing notice and testing required for all new chemicals • Known hazardous chemicals banned from commerce • PCBs • Other provisions reduce exposure from known hazards – regulatory & non-regulatory approaches • Lead, asbestos, radon

20. Federal Insecticide, Fungicide, and Rodenticide Act (1972) • Transferred control of pesticide law from Dept of AG to EPA • Strengthened the registration process • Covers about 19,000 pesticides currently in use • Removal of pesticides from market • Cancellation • Suspension • Labeling requirements • Ingredients, allowed uses, directions for use

21. FIFRA con’t • 1988 Amendments • Tolerances in food • Worker protection standards

22. Endangered Species Act • Protect biological diversity against habitat loss and degradation, invasive introduced species, and overexploitation • Listing of Species (i.e. Threatened or Endangered) • Decision made by either USFWS (land-based & freshwater species) or NMFS (marine-based species) • With the listing, must also designate the “critical habitat” of the endangered or threatened species • Must also develop and implement recovery plans • FWS favors recovery efforts over critical habitat designations • Feds must insure that any action authorized, funded, or carried out • Won’t jeopardize the continued existence of an endangered or threatened species or • Result in the destruction or adverse modification of critical habitat area • Agency taking “action” that affects species must consult with appropriate federal agency (NMFS and USFWS)

23. ESA Consultation (Section 7) • Key Definitions • Endangered = Any species in danger of extinction throughout all or a major portion of its range Threatened = Any species likely to become endangered within the foreseeable future throughout all or most of its range • Take = to Harass, Harm, Pursue, Hunt, Shoot, Wound, Kill, Trap, Capture, Collect, or attempt to engage in any such conduct • Biological Assessment prepared when species & habitat are present • Evaluates potential effect of action on species or habitat • Consultation results in Biological Opinion From NMFS or FWS (Jeopardize or Not) • Can result is Incidental Take Statement • Can also result in blocking the action from proceeding in its form • Alternatives must be proposed OR exemption must be pursued

24. ESA - Take Prohibition (Section 9) • Applies to governments, corporations, municipal entities, and individuals • If government entity approves of an action that incidentally takes a listed species, then the governmental entity can be held financially liable for the consequences • Applies to both public and private property • Even if activity did not qualify for Section 7 Consultation • Some flexibility in 4(d) rules for threatened species • the specification of actions that could be undertaken without the threat of legal sanctions resulting from the take of the species; • the specification of actions which would result in take and are therefore prohibited

25. ESA-Incidental Take Permit • A “take” may be permitted if it is “incidental to”, and not the purpose of, carrying out a lawful activity • Must submit a Habitat Conservation Plan • Provides insulation w/o defining a “quantity” of allowable take • “No Surprises” rule • During the life of the ITP, no additional requirements (land, water, or financial resources) will be enforced to respond to unforeseen circumstances that result in adverse affects to species • ITP can be revoked or suspended if everything has failed and there is continued jeopardy to existence of species • Offers some assurances to governments, companies and private landowners

26. Superfund (1980) • Responses to releases or threatened releases of hazardous substances • Established a trust fund to provide for cleanup • Fund created via tax on the chemical and petroleum industries • Tax provisions expired 1995 - Cleanups now carried out with general Treasury funds • Liability imposed on: (1) owners / operators of contaminated property; (2) generators / arrangers; and (3) transporters of hazardous substances • Courts decisions have resulted in broad liability of persons responsible for releases • Joint & several • Retroactive (doesn’t matter when release occurred)

27. Superfund (con’t) • Authorizes two kinds of clean-up actions: • Short-term removals to address releases or threatened releases requiring prompt response • Long-term remedial response actions…permanently and significantly reduce the dangers associated with releases • Can be conducted only at sites listed on EPA's National Priorities List (NPL). • Not Delegable • States have parallel laws (MTCA in WA) • State involvement required for fund driven sites, Records of Decision

28. Superfund RI/FS Process • Remedial Investigation • Site characterization • Baseline risk assessment • Treatability studies • Feasibility Study • Development and screening of alternatives • Detailed analysis of alternatives • Evaluation of Applicable Relevant and Appropriate Requirements (ARARs) • Record of Decision • Summary of RI/FS • Selection of Alternative (and Justification)

29. Superfund (con’t) • Brownfields Program important new feature of Superfund • Grant monies for studies and clean-up • Certain liability limits for property owners, neighboring owners, prospective purchasers • Funds to states for voluntary response programs

30. Washington Model Toxics Control Act • Broader Authority than Superfund • Petroleum Substances • Basic Process Similar to Superfund RI/FS Process • Also Allows “Voluntary” Cleanups • For “simple sites” (gas stations, single-contaminant sites) • Independent cleanup with limited Ecology oversight • Must obtain Ecology approval at end of process

31. MTCA Cleanup Standards • Method A – for the straightforward cleanup • Provides numerical cleanup levels for 25-30 of the most common hazardous substances • Numerical levels set in the regulations • Method B – for the more complex cleanup • Most common method for sites with unusual substances or combinations of substances • More stringent cleanup standards • Sets human-health risk levels for particular substances • Must assess impact on terrestrial ecological receptors • Method C – for every other kind of cleanup • When Method A or B levels are not technically possible • Similar to Method B levels of calculating cleanup levels • Less stringent exposure assumptions – good for industrial sites

32. EPCRA • Response to Bhopal disaster • Major provisions • Toxics Release Inventory • Annual reports for facilities that release certain levels to air, water, land, off-site transfers • Available via EPA’s TRI-ME website • Reporting on locations of hazardous materials • Establishes response coordination mechanisms

33. Oil Pollution Act (1990) • Administered by EPA, Coast Guard • Oil tax to create fund for response to oil spills • Storage facilities and vessels submit prevention/response plans to feds • Federal/state agencies directed to develop contingency plans/practice responses to spills • Identify critical areas for protection • Identify facilities/supplies/vessels available to respond

34. OPA (con’t) • Facilities/vessels subject to damage claims for spills • Public damages - trustee agencies • Private suits for damages without common law limitations • Natural Resource Damage Assessments • Regulations developed by NOAA

35. Public Resource/Land Management • National Wildlife Refuge System Administration Act -1966 • Wilderness Act - 1964 • Federal Land Policy and Management Act - 1976 • State Forest Practices Act • Coastal Zone Management Act • Washington Shoreline Management Act • Farm Bills

36. Farm Bill • New bill enacted every few years - Most recent is 2002 • Conservation Reserve Program - Sodbuster • Purchasing land to retire from production • Wetlands Reserve Program - Sodbuster • Purchasing of easements on farm wetlands • Environmental Quality Incentives Program • Financial support for environmental improvement practices • Major reductions on erosion • From 21 to less than 2 tons/acre/year on CRP lands • Administered by USDA& NRCS

37. Wildlife/Species Protection • Marine Mammal Protection Act - 1972 • Fish and Wildlife Coordination Act - amended 1958

38. Cultural/Historic Resources • Historic Sites, Buildings and Antiquities Act of 1935 • Archeological and Historic Preservation Act, as amended - 1974 • National Historic Preservation Act - 1965 • Archeological Resources Protection Act of 1979

39. Water Resources • Estuary Protection Act - 1968 • Wild and Scenic Rivers Act - 1968 • Marine Protection, Research, and Sanctuaries Act of 1972 • Outer Continental Shelf Lands Act, as amended - 1978

40. Energy Related Laws • Federal Power Acts - 1920, 1935 • Relicensing of Hydro Projects • Now handled by FERC • Energy Policy Conservation Act - 1975 • CAFE Standards • Energy Security Act - 1980 • Pacific Northwest Electric Power Planning and Conservation Act - 1980 • Energy Policy Act of 1992 • Energy Policy Act of 2005

41. To Be Covered in Week 6 • National Environmental Policy Act • State Environmental Policy Act • Growth Management Act