The County of Maui had another day in court this week, this time pleading with Federal District Judge Mollway to reconsider her renewed decision that the discharge of treated effluent from the Maui waste water treatment facility is an unpermitted discharge of "pollutants" exposing the County to astronomical penalties under the Clean Water Act.  As many of you know, Judge Mollway's first decision made its way to the United States Supreme Court which established a seven factor "functional equivalence" test for determining whether a discharge of pollutants to groundwater, which wouldn't otherwise be covered by the Clean Water Act, is the "functional equivalent" of a discharge of pollutants to a "Water of the United States" and therefore now covered, according to the Supreme Court, by the Act.

Lara Beaven of Inside EPA reports that this week, for the first time, the County is focused on whether its treated effluent actually constitutes a "pollutant" as defined in the Clean Water Act.  Judge Mollway seem to think, with good reason, it may be too late for the County to be asking that question which is one that has bothered me for some time.

Up to now, the County, and pretty much all of the parties to all of the cases that have followed the Maui case, have assumed that any measurable amount of any element on the periodic table meets the definition of a "pollutant" under the Clean Water Act.  Such an assumption is in the muscle memory of environmental lawyers and Judges owing to the very broad definition of "hazardous substances" in another federal environmental law.

Given the continued controversy over what is a "Water of the United States", it may be past time to test that assumption.

The definition of "pollutant" in the Clean Water Act is different than the definition of "hazardous substances" in the Act or other federal laws.  Section 502(6) of the Act says "pollutant" means "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water."  

This is a pretty broad definition to be sure but does anyone seriously think that 50 years ago, when our nation's rivers and harbors were a convenient receptacle for most wastes, Congress intended to penalize wastewater treatment facilities for treating sanitary sewage?  If Congress did mean to do that, why isn't effluent from wastewater treatment facilities included in this broad list?

Citizen suit plaintiffs argue that nitrogen in treated effluent in single parts per million concentrations that are less than the drinking water standard is a "solid waste", "sewage" or "chemical waste" as itemized in the Clean Water Act's definition of "pollutant".    Does that make sense to you?

If that is a "pollutant", what isn't?  Those of you who say what's the harm in requiring a federal permit for any discharge of any element need to ask EPA and the States authorized to administer that program what resources they would need to keep up with the resulting demand for permits and then we have to see that those regulators get those resources.

In the meantime the courts will continue to be busy.