Lawsuit seeks to clean up stretch of Youghiogheny River

Many residents of Pennsylvania, particularly southwestern Pennsylvania, are familiar with the beautiful Ohiopyle State Park, through which the Youghiogheny River flows. People flock to the area every year for superb white water rafting, fishing, camping, hiking and biking opportunities. Just upstream of Ohiopyle lies the Borough of Confluence, situated along the Great Allegheny Passage where Laurel Hill Creek and the Casselman River empty into the Yough. Between Confluence and Ohiopyle State Park runs one of the nicest eleven miles of trout river in all of Pennsylvania. It is at the beginning of this stretch where the Borough of Confluence discharges wastewater from its sewage treatment plant.

The Borough's sewage treatment plant is hydraulically overloaded. Two main sewer extensions that collect sewage from the town are constructed of old tile lines that allow large quantities of water from the Yough and Casselman Rivers to infiltrate into the collection system. This condition results in raw sewage bypassing treatment at the plant. The Pennsylvania Department of Environmental Protection (PADEP) estimates that the Borough's plant settles out only 30 percent of the solids that it should be collecting, meaning that the rest ends up in the river. Though this condition has existed for many years, neither the Authority nor the PADEP has taken action to solve the problem.

Ironically, the hydraulically overloaded treatment plant threatens the very natural resource that the Borough now seeks to use to attract economic development to the area. As suspended solids increase, a water body begins to lose its ability to support a diversity of aquatic life. Suspended solids absorb heat from sunlight, which increases water temperature and subsequently decreases levels of dissolved oxygen. Some cold water species, such as trout and stoneflies, are especially sensitive to changes in dissolved oxygen. Suspended solids can also destroy fish habitat because suspended solids settle to the bottom and can eventually blanket the river bed, smother the eggs of fish and aquatic insects, and suffocate newly-hatched insect larvae.

The Borough discharges sewage to the Yough under authority of a National Pollutant Discharge Elimination System (NPDES) Permit issued by the PADEP. A file reviewed performed by PennFuture revealed that for the past four and one-half years, the Borough has reported more than sixty (60) violations of its NPDES Permit, equating to over five hundred (500) days of violation of the Clean Water Act and Clean Streams Law. As a result, PennFuture filed a citizen suit in Federal District Court to cease the violations. The suit seeks to require that the Authority develop and implement a plan that will correct the hydraulic overload at the plant and eventually stop untreated sewage from being dumped into this valuable natural resource. 

You can read the full Complaint that PennFuture filed in the District Court for the Western District of Pennsylvania here.

George Jugovic, Jr. is chief counsel for PennFuture and is based in Pittsburgh.

Lobsters making the case on warming oceans

Drastic declines in New England lobster larvae over the past year may be linked to rising ocean temperatures, not over-fishing, warns Dr. Rick Wahle of the School of Marine Science at the University of Maine.

Dr. Wahle and his crew of divers, who track lobster harvest data for the American Lobster Settlement Index, have seen a recent “widespread downturn” in the populations of larval lobsters. Although the adult population of lobsters is unchanged, Dr. Wahle’s research suggests that oceanographic changes are responsible for the sudden decline in lobster eggs.

Young lobster populations are approximately 50 percent of what they were in 2007. Recently, summer waters have been warmer than the lobster comfort zone (below 68° F), creating stress for lobsters. Complicating matters for lobster populations, warmer waters off the New England coast also aggravate a shell disease that eats away at lobster shells. The disease can be fatal to the crustaceans or make them unmarketable for selling live. As a result of the temperature changes affecting their habitat, lobster populations have been pushing north into areas that were once too cold for lobsters to thrive. 

Illustration of the water cycle and its interaction with the 

greenhouse effect.  The upper-left insert indicates the 

relative increase of potential water vapor content in the air 

with an increase of temperature (roughly 7% per degree).  

The white curls illustrate evaporation, which is compensated 

by precipitation to dose the water budget.  The red arrows 

illustrate the outgoing infrared radiation that is partly 

absorbed by water vapor and other gases, a process 

that is one component of the greenhouse effect. 

The stratospheric processes are not included in this figure.  

Reproduced with authorization from: Myhre, G., D. Shindell, 

F.-M. Bréon, W. Collins, J. Fuglestvedt, J. Huang, D. Koch, 

J.-F. Lamarque, D. Lee, B. Mendoza, T. Nakajima, 

A. Robock, G. Stephens, T. Takemura and H. Zhang, 

2013: Anthropogenic and Natural Radiative Forcing. 

In: Climate Change 2013: The Physical Science Basis. 

Contribution of Working Group I to the Fifth Assessment 

Report of the Intergovernmental Panel on Climate Change 

[Stocker, T.F., D. Qin, G.-K. Plattner, M. Tignor, S.K. Allen, 

J. Boschung, A. Nauels, Y. Xia, V. Bex and P.M. Midgley (eds.)]. 

Cambridge University Press, Cambridge, United 

Kingdom and New York, NY, USA. 

Over the past 50 years, the ocean has borne the brunt of climate change. Sea surface temperature changes are among the dangers associated with climate change. The average temperature of the global ocean has increased down to depths of at least 3,000 meters. See Intergovernmental Panel on  Climate Change (“IPCC”), Contribution of theWorking Group I to the Fourth Assessment Report of the IPCC, 408-21 (S. Solomanet l. eds. 2007).

In its most recent report, the IPCC estimated that oceans absorb approximately 90 percent of the heat added to the climate system, and the multinational experts report with high confidence that it is very likely that the increase in global ocean heat content observed has a substantial contribution from human activity. See IPCC, Climate Change 2013: The Physical Science Basis, Ch. 10.901-03 (Cambridge University Press 2013).  

Humans have an impact on water temperature in ways that extend beyond climate change as well.  When an industry uses water for processes such as cooling, the facility often discharges water that is hotter than the temperature of the receiving waters. When a power plant, for example, discharges heated water to a river, it can create a thermal plume or area of elevated temperature within that river. This human-caused change in the temperature of surface water is known as thermal industrial pollution. The combination of thermal industrial pollution with other forms of water pollution such as chemical or biological contamination can create severe stresses on aquatic ecosystems. See IPCC 2013, Ch. 10, at 869-928. In local areas, it can also intensify the effects of higher temperatures caused by climate change.

The EPA has the power to limit thermal industrial pollution because heat is defined under the Clean Water Act as a pollutant. 33 U.S.C. § 1362 (6).  Section 301(a) of the Clean Water Act prohibits the discharge of any pollutant by any person unless otherwise permitted under the Act. 33 U.S.C. § 1311(a). 

In order to qualify to release these pollutants, a discharger must obtain a National Pollutant Discharge Elimination System (NPDES) permit approved by EPA or a qualified state agency.  33 U.S.C. § 1342. The NPDES permit contains limitations on the quantity or concentration of pollutants, including heat, which the facility can discharge into a natural water body. 33 U.S.C. § 1342. 

Courts have recognized the importance of the direct effects of thermal industrial pollution in reversing approval of a permit for construction of two nuclear power plants. Duke Power vs. Carolina Environmental Study Group, Inc., 438 U.S. 59, 74 (1978), citing United States v. SCRAP, 412 U.S. 669, 686-87 (1973). (“Certainly the environmental and aesthetic consequences of the thermal pollution of the two lakes in the vicinity of the disputed power plants is the type of harmful effect which has been deemed adequate in prior cases to satisfy the ‘injury in fact’ standard.”)  

In order to fully account for the harm to water bodies from the effects of higher temperatures, it is important to consider the effects of both climate change and thermal industrial pollution together. Fortunately, federal law requires EPA to do just that when it conducts environmental reviews as part of its NPDES permitting process for new sources. For industrial facilities considered “new sources” under the Clean Water Act, 33 U.S.C. § 1316(a)(2), EPA must conduct an environmental review under the National Environmental Policy Act (NEPA). 33 U.S.C. §1371(c)(a). NEPA requires the federal agencies to fully consider the environmental impact of actions it permits by considering, among other things, the “cumulative impacts” of all actions that could impact the environment. 40 C.F.R. Parts 1500-1508; see 42 U.S.C. § 4332.

In a draft guidance document published in 2010, the Council on Environmental Quality recognized the importance of incorporating the effects of climate change on the environment when conducting an environmental review under NEPA. Council on Environmental Quality, 2010. DraftNEPA Guidance on consideration of climate change and GHG emissions.  Unfortunately, the cumulative effect of the impact of climate change is not always fully analyzed in NEPA reviews. See Patrick Woolsey, Consideration of Climate Change in Federal EISs, 2009-2011, Centerfor Climate Change Law, Columbia Law School, July 2012, at 15-16. By incorporating a robust analysis of the effects of climate change into its NEPA analysis for NPDES permitting decisions, EPA can better ensure that thermal industrial pollution does not compound the effects of climate change and exacerbate the plight of lobsters and other plants and animals that rely on a stable environment. 

Leading British economist Lord Nicholas Stern warns that we “grossly underestimate” the economic damage wrought by climate change. Indeed, lobsters are not the only aquatic organism that is sensitive to water temperature. The trout species that call Pennsylvania’s streams and rivers home also suffer stress at higher water temperatures. And, in fact, warming waters are but one of many of the impacts of climate change that can adversely affect both our environment and our economy.

To minimize those negative effects, we must not only address the direct causes of climate change, but we must also minimize other activities having negative effects on ecosystems. Although it will not stop climate change, if EPA closely monitors offshore and coastline discharges of heated water or other pollutants throughout the East Coast, it may improve the likelihood of survival for temperature-sensitive species like the New England lobster and Pennsylvania’s trout species. 

Clean Water Act Turns 40

Forty years ago Congress, in bipartisan fashion, overrode a veto by President Richard M. Nixon and enacted the Clean Water Act of 1972. It has made a dramatic improvement in our lives, and that of our children.

On its birthday, I found myself reflecting on two aspects of this complex law known as the Clean Water Act — its technology-forcing nature, and its desire to achieve an impossible goal.

Congress did something extraordinary lo those many years ago — it knowingly designed a system that would likely put companies out of business in favor of cleaning up our nation's waterways. Congress did that by setting cleanup standards that were driven by technology — in some cases expensive technology — that would only be able to be afforded by some of the best performing companies in a specific industry. And it put what some would think was a draconian measure in place to save a dying patient — our nations waterways.

Section 402 of the Clean Water Act required persons to obtain permits in order to discharge pollutants into waters of the United States. The U.S. EPA was required to put conditions in those permits that limited the amount of pollutants that could be discharged. Those limits were to be initially based on existing technology that considered the economic condition of companies in a particular industry. As time went by, the limits would be lowered to reflect the best technology available to remove that pollutant from the waste discharge, with less concern for a company's ability to afford that technology. Congress knew there were companies that operated so inefficiently that if they were forced to internalize the actual cost of production by not using the environment as a free trash can, those companies would eventually go out of business — a bold and courageous decision, indeed. Congress knowingly chose to put those inefficient companies on the trash heap in favor of companies that were forced to internalize the cost of adopting these new technologies in order to properly manage their pollution.

The purpose of these technology-forcing provisions was to achieve a previously unheard of goal in environmental regulation — the goal of zero discharge of pollutants to waters of the United States. While progress has at times been slow, and the provisions of the Clean Water Act itself would not conceivably meet the goal — at a time when the Cuyahoga River was burning because of pollution on its surface, the zero discharge goal made an important and forceful statement about the seriousness of the task being given to the U.S. EPA: Clean up the waters of the United States or else. Many have credited this simple yet seemingly unachievable goal with much of the success achieved under the Clean Water Act over the past 40 years. Without this wind at the back of the EPA, many of the difficult decisions that the agency has made implementing the provisions of the Clean Water Act would no doubt have been that much more difficult — particularly during difficult economic times over the past four decades.

Reflecting on the successes achieved, it should not be lost that the way in which the Clean Water Act went about achieving its goals did not just put some underperforming companies out of business, it also put people to work. It encouraged development of an entire industry that we now take for granted — an industry of scientists, engineers, inventors, mechanics, and other good-paying careers built around one goal — removing pollutants from the waters that we use to fish, swim, and drink.

The Clean Water Act turns 40, and we are that much better for it. It's difficult not to wonder whether those in Congress today would have the ability and will to construct and enact such a monumental piece of public health legislation.