Shotguns, Spray, and Smoke: Regulating Atmospheric Deposition of Pollutants under the Clean Water Act

Abstract

I. INTRODUCTION II. ATMOSPHERIC MERCURY POLLUTION AS A CASE STUDY ILLUSTRATING THE SCIENCE OF ATMOSPHERIC DEPOSITION AND THE EXISTING REGULATORY SCHEME III. THE CLEAN WATER ACT AND THEORIES DE DISCHARGE IV. ATMOSPHERIC DEPOSITION OF POLLUTANTS AND THE TWO RATIONALES OF DISCHARGE A. The Indirect Discharge Rationale B. The Point Source Rationale 1. Addition of Pollutants via Land: The Effect of Gravity 2. Addition of Pollutants via the Atmosphere; The Effects of Gravity and Predictability a. Shotgun Pellets and Clay Pigeons b. Pesticide Spray and Incinerator Emissions i. The Non-textual Approach to Discharge of Pollutants ii. The Textual Approach to Discharge of Pollutants 3. Applying a Textual Interpretation of the Clean Water Act to Atmospheric Deposition of Pollutants a. Congressional Intent and Regulatory Conflict b. Fear of Irrational Results V. CONCLUSION I. INTRODUCTION I recently watched a fireworks display from the shore of a lake. I looked on with interest as breathtaking fireworks burst over the lake. My interest turned to concern as burning embers of fireworks residue drifted downward to the lake. My concern stemmed from knowing that this particular lake is a source of drinking water for the city of Portland, Maine. (1) Fireworks contain a number of potentially dangerous pollutants, including barium, copper, cadmium, lithium, rubidium, strontium, lead, and others. (2) Given the lake's use as a source of drinking water, I wondered whether the person shooting the fireworks had obtained a permit to do so pursuant to the Clean Water Act. (3) It appeared that the residue falling from the fireworks into the lake should have been regulated under the Clean Water Act. Discharges of pollutants within the purview of the Clean Water Act are those that involve addition of any pollutant to navigable waters from any point source. (4) Courts have held that liquid or misted pollutants released over land from a point source, which then flow into navigable waters, are within the purview of the Clean Water Act. (5) The same is true for solid pollutants released into or near navigable waters--they too are regulated under the Clean Water Act. (6) In essence, as long as a solid or liquid is considered a pollutant, (7) its discharge from a point source to navigable water may be regulated under the Clean Water Act. The common theme is that courts, pursuant to the Clean Water Act, proscribe releases of solid, liquid, and misted pollutants when it is demonstrated with certainty that the pollutant--shortly after release--deposited in navigable waters, even if the pollutant is not released directly into navigable waters. (8) Undoubtedly, then, the fireworks show should have been subject to the regulations of the Clean Water Act, at least for the debris that fell directly into the lake. I thought about the fireworks episode later that week when I saw a power plant on the shores of a river. The wind that day was pushing smoke and steam from the plant's stack downward, such that it hovered several feet above the surface of the water. I could not tell whether any of the pollutants, such as heavier particulate matter, were depositing directly into the river, but I wondered whether there was a scenario where emissions from the power plant could be regulated under the Clean Water Act. For example, what about particulates or other emissions that landed in the river shortly after their release from the power plant? Even if there had not been wind on that day, it is likely that particulates from the smoke I saw would deposit into the river. (9) Logically, pollutants released, e.g., from a smokestack into the atmosphere, could be regulated pursuant to the Clean Water Act if it could be proven with certainty that the pollutant would deposit into navigable waters. …