Water Pollution Legislation and Administration VINTON W. BACON CALIFORNIA STATE WATER POLLUTION CONTROL BOARD SACRAMENTO, CALIF
F. E. DEMARTINI
R. R. HARRIS
DIVISION O F WATER POLLUTION CONTROL U. S. PUBLIC HEALTH SERVICE SAN FRANCISCO, CALIF.
DIVISION O F WATER POLLUTIOY CONTROL U. S. PUBLIC HEALTH SERVICE PORTLAND, ORE.
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K ORDER to facilitate T h i s paper is a digest of t h e existing water pollution connecessary for the protcction comparison of the laws, trol s t a t u t e s , regulations, a n d administration of nine of public health and welfare a digest of existing water western states. I t does n o t discuss t h e merits of particuwherever investigation by pollution control statutes for the state department s h o w lar s t a t e laws, t h e ease of administering different types of each state is presented under that entrance of se\rage or pollution control programs, t h e effects of control programs four p r i n c i p a l h e a d i n g s : i n d u s t r i a l wastes into a on public welfare, or a n y o t h e r aspects of control programs General Statement; Adminisbody of water is endangerwhich depend on relationships, interpretation, a n d evalut i a t i v e Organizations; ing the public health and ation. It is intended a s a factual presentation of t h e Pori-ers and Duties; and welfare. salient features of t h e s t a t u t e s f r o m which t h e reader, Other Significant Provisions Cit:- and county boards f r o m his own point of view, can construct his comparisons of Lan-s. T h e s e c t i o n of health are given authority of t h e laws. T h e paper is divided i n t o two principal sec“Poners and Duties” inwithin their particular juristions: (1) a digest of existing water pollution control cludes discussion of the dedictions, and subject to the s t a t u t e s by states, a n d (2) a table s u m m a r i z i n g t h e s t a t u s velopment of comprehensive supervision of the state deof legislation a n d administration. programs, issuance of perpartment of health, to do mits, review of plans and such things as the state department of health has authority to do, specifications, enforcement, conduct of studies and research, cooperation with other public and private agencies, and adThe game and fish commission is given specific authority to sue, in the name of the state, to enjoin any person from dischargministrative powers. The authors attempted to place over 50% ing any polluting substance into a body of water nhich is or may of the emphasis and space in each state digest on this section, be injurious to fish life, shellfish, or v d d life. believing it to be of most interest and concern to the industrial and engineering chemist. The section “Other Significant ProAdministrative Organization. The stat,e department of hralth visions” includes reference, \There applicable, to exemptions consists of the state board of health, a director of public health, from operation of the laws, preservat’ion of existing rights and and the several divisions of the department which include local remedies, statement of policy, severability clause, interstate health administration, sanitary engineering, and the state laboraagencies, and other pertinent information. tory. The director prescribes the roles and duties of the diThe digests in this paper were developed primarily from much visions and appoints the directors of the divisions. The director longer digest,s of state water pollution legislation ahich n-ere preis the executive officer of the depart,ment; he performs all execupared by attorneys of the Federal Security Agency. Such refertive duties of t’he department, administers the laws, prepares ence material was particularly valuable as it not only had been regulations for the consideration of the board, and gives the prepared on a uniform pattern but it also had been cleared by the board his recommendations for legislation. He can delegate respective state wat’er pollution agencies. Severtheless, as a his functions to officers or employees of the department. T a t e r further check for accuracy, these shorter digests were also referred pollution control activities are centered in the division of sanitation n-hich is assisted by the state laboratory. hack to the respective state agencies for review and corrections. Local boards and departmenb function under the supervision of the stat’eboard of health. This apparently does not apply to ARIZONA the sanitary districts. The authority of the game and fish General Statement. I n Arizona, water pollution control rests commission to seek injunctions is not dependent upon the health in the state department of health, the state game and fish comdepartment. mission, local health departments, and in sanitary districts. Powers and Duties. There is no specific legislative authority For the purpose of the Federal Water Pollut,ion Control Act for the development of a comprehensive program, for the setting (Public Law 845) the state department of health was designated of standards of water purity, or for the classifying of waters. as the state water pollution agency by the Surgeon General of the The state department, of health is cooperating with the public U. S. Public Health Service with the concurrence of the governor health service in preparation of comprehensive programs under of Arizona. provisions of Public Law 845 of the 80th Congress. The stat’e The authority of the state department of health in the field board of health has adopted a series of regulations known as the of water pollution control is derived from the authority of the Sanitary Code, which includes regulations establishing requirestate board of health to make rules and regulations to prevent ments for public and semipublic water supplies and for the disand control public health nuisances, regulate sanitation and posal and treatment of seryage and other wastes. The sanitary sa,nitary practices, and to protect and promote public health. code requires approval of the state department of health for Pursuant to these provisions, the state board of health has plans and specifications for the construction and reconstruction adopted regulations prescribing rules of sanitation, and in particuof sewage and industrial waste treatment plants. There is no Ia,r has adopted Regulation 37, which authorizes the state dispecific st,at,utory authority for the issuance of permits or the rector of health to issue and enforce special orders as may be 2678
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review of plans and specifications. There IS no statutory authority in the state department of public health to issue orders, hold hearings, etc., in connection with the control of water pollution. The game and fiehcolnmi58ion can me to restrain the pollution of streams to the detriment of 6sh life. The sanitary code requires permits for the use of sewage or sewage plant effluents for irrigation. Regulation 37 provides for special orders by the state director of Mth in case of pollution of waters. There is no specific authority for the conduct of studies, investigations, or research in connection with water pollution, but the board formulates general policies and the director is required to submit a report to the governor including hia recommendations. There is no specilk statutory authority for cooperation of the state department of health with other public and private agencies in connection with the control of water pollution. However, pmvkiona specify that monies received from the United States or any agency thereof for public health purpoees sball be kept in a separate amount; this implies authority to cooperate with the United Statesin various fieldsin order to secure federal grants. The board has power to hold hearings, subpoena witness% and documents, and to administer oathw. The board has authority to adopt, promulgate, repeal, and amend rules and regulations consistent with the law for the purpose of preventing and controtling public health nuisances and regulating sanitation in the interest of public health. By regulation the board hag aesumed that the department hea investigatory powers and has conferred on the director the power to h u e and enforce special orders ae may be necessary for the preservation of public health. The Isw c o n k a general provision that any person violating provisions of tbe law or of the rules and regulations adopted pursuant thereto is guilty of a misdemeanor and is subject to fine and impriaOnment. Other Signidwt Rovi~ionsof Laws: The Arizona code contains no 8 p d c statutory authority regarding exemptions from the operation of the act, nor doea it cover the preservation of existing rights and remedies. There is no statement of policy nor is there a neverability clause. There are no interstate water pollution control agencies in existence at the present time that include any portion of the State of Ariaana.
CALIFOmIA General Statement. Comprehensive and sweeping changes in state laws for the control of water pollution were enacted by the California legislature in 1949. The new laws created a state and nine regional water pollution control boards. The state board haa recently been d-ted ae the state water pollution agency for the purposes of the Federal Water Pollution Control Act. The California statutes define "contamination" ae an impairment of the quality of the waters of the state by sewage or industrial waste to a degree which creates an actual h a r d to public health, and the responsibility for abatement of contamination is vested in the state department of public health and the looal health officers. "Pollution" is defined in the statutes ae an impairment of the quality of waters to a degree which adversely and unreasonably afIects such waters for beneficial uses, and the responsibility for abatement, prevention, and control ofpollution rests with the newly created water pollution control boards. These hoarde are also responsible for the abatement and control of "nuisance," which is defined ae damage to any community by odors or unsightliness resulting from unreasonable practices in the disposal of sewage or industrial waste. The 1949 legislation, in creating these water pollution control boards, had a twofold purpose: First, to provide 8 means of ccordinating the actions of the manifold governmental agencies involved in the prevention and control of water pollution; and seoondly, to place the concentration of control on a local or regional level.
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Administrative Organization. The state water pollution control board, , which serves as an advisory and a p pellate body to the regional boards, is composed of nine members, a p pointed by the governor and repsenting desknated interests concemed with water pollution, in addition to the following four state officials: director of public health, state engineer, director of natural resources, and director of agriculture. California is divided into nine water pollution control regions, and the regional boards are vested with the primary enforcement responsibility io relation to pllution and nuisance. These boards are appointed by the governor, and each of the five members represents a designated organization or field. The state b a r d and each of the regional boards appoint an executive officer and technical staff to administer their activities. The state department of public health, which hag authority and responsibility in relation to contgmination is under the control of the state board of public health consisting of the director of public health and seven members appointed by the governor. In California, as in many other states, there are a number of agencies charged with responsibility for enforcing laws relating to water pollution control, and it would appear that the 1949 California legislation has divided this responsibilityamong several state agencies. However, the California attorney general in an opinion dated February 7, 1951, hea expressed the view that the 1949 legislation ba8 established the state water pollution control hoard 88 the single state agency having ultimate over-all power and responsibility for enforcing state laws relating to water pollution in all parts of the state. It is on this basis that the Surgeon General of the U. S. public Health Service has designated the state water pollution control board ag the state water pollution agency for California, Powers and Duties. The state water pollution control hoard * is empowered to formulate a stabwide policy for the control of water pollution with,due regard for the authority of the regional boards. These latter h o d are empowered to formulate and adopt long-range plans and policies with respect to water pollution control within their region. Prior to 1949, the California Health and Safety Code required that persons or agencies intending to install sewage d-1 facilities obtain a permit from the health department, which department reviewed and p e d on plans before granting the permits. The new law have abolished this permit system, and any person now proposing to &harge sewage or industrial waste must file with the appropriate regional water pollution control hoard a report of the proposed discharge. The regional board, after any necessary hearings, preseribes requirements to the nature of the &barge with relation to conditions existing from time to time in the disphsal area or receiving waters. In contrast to the powers formerly reposed in the health department, the regional board may not specify tbe design, location, type of construotion, or particular manner in which a condition of pollution is to be controlled. The regional board may not only request enforcement of water pollution laws by appropriate federal, state, and local agencies, but may also, after adjudication hearings, order correction of pollution or nuisance, either existing or threatened, within its region. Upon failure of any p e w n to comply with orders to correct pollution, the regional board may initiate court action. Should a regional board fail to take or obtain appropriate action to correct a condition of pollution, then the state board shall direct that such action be taken or may itself take such
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action. I n so doing, the state board is vested with the powers granted the regional boards. The state board may also, on finding that a ''contamination" exists which is not being corrected, direct that action be taken by any state agency having jurisdiction. The department of public health or any local health officer may issue a peremptory order requiring the abatement of a contamination and may bring and prosecute an injunction in the courts, Any person who discharges sewage or indust,rial wast'e in any manner Rhich results in contamination is guilty of a misdemeanor. The state n-at,er pollution control board is authorized to administer any state-wide program of research in the technical phases of water pollution cont,rol and may accept funds from the federal government or any person for that purpose. The state and regional boards have the polver to require any state or local agency to inspect and report on technical factors involved in water pollution, and the regional boards may investigate any source of water pollution or nuisance within their regions. The state department of public works, through its division of water resources, is directed to investigate conditions of the quality of all waters within the state as related to all sources of pollution and must report annually thereon to the legislature and the water pollution control boards. This division also is authorized to conduct investigations relating to reclamation of water from sewage or industrial wastes and to damage to quality of underground waters caused by improperly constructed or defective water wells. Orie of the primary functions of the regional water pollution control boards is to obtain coordinated action in the control of water pollution by means of formal or informal meetings of the persons involved. They are also directed to encourage and assist in self-policing n-aste disposal programs for industry. The state board administers any state-wide program of financial assistance for water pollution control and may accept federal funds for that purpose. The state health department is directed to cooperate with the regional boards by inspecting and reporting on technical factors involved in any condition of pollution or nuisance and may also recommend to the regional boards corrective measures. ' The California Fish and Game Commission has certain statutory responsibilities in the field of water pollution and is directed to report to and cooperate xit,h t,he appropriate regional n-ater pollut,ion control board whenever a condition of pollution is found to exist. In addition to the administrative poxers discussed in the foregoing paragraphs, the state water pollution control board is empon-ered to adopt reasonable rules and regulations for the conduct of its affairs and to allocate t o the regional boards funds for the administrative expenses of the boards. The regional boards may recommend to the state board projects for t'he reduction of water pollution and may investigate any source of pollution or nuisance n-ithin its region. Other Significant Provisions of Laws. There are no exemptions from the operation of the California Water Pollution Control Act other than the section iyhich states that no provision of the act shall be construed as affecting the right of any person to the use of water for any beneficial use other than the disposal of sewage and industrial waste. The 1949 legislation provides that the newly enacted laws shall not constitute a limitation on: (a) the power of a city or county to adopt and enforce additional regulations imposing further rest,rictions with respect to water pollution; ( b ) the power of any city or county to abate nuisances; (c) the power of a state agency in the enforcement or administration of any provision of law which it is permitted or required to enforce or administer; or ( d ) the right of any person to maintain a t any time appropriate action for relief against any private nuisance as defined in the Civil Code or for relief against any contamination or pollution. The California State Water Pollution Control Board on
Vol. 43, No. 12
January 12, 1950, adopted a preliminary statement of objective and policy which reads in part as follows: The objective of the state 11-ater pollution control board is the prevention and control of pollution and contamination of the waters of the state a t a minimum of expense consistent vr.ith obtaining this objective. In achieving this objective, it will be the policy of this board that its actions and t'hose of the regional water pollution control boards shall be so directed as to secure that degree of care in the planning and operation of works for the treatment and disposal of sewage and industrial wastes as will adequately protect the public health and all of the beneficial uses of waters in this state and a t the same time permit the legitimate planned usage of those waters for receiving suitably prepared wastes so that an orderly growth and expansion of cities and industries may be possible. Although there is no specific provision in the California law for participation of the water pollution control boards in interstate compacts, by informal agreement the State of ru'evada and the Lahontan Regional Water Pollution Control Board enforce pollution control requirements on Lake Tahoe and small interstate streams.
IDAHO General Statement. Idaho has no legislation that is specific in relation to water pollut'ion, except that pertaining to the pollution of streams which may tend to dest,roy or drive aTvay from any such m t e r s any fish. Although this provision relat,ing to the protection of fish is contained in the sections administered by the fish and game commission, there are no specific provisions for enforcement'. The criminal code of Idaho provides that it shall be a inisdemeanor for any person to empty or place or cause to be emptied or placed into any canal, ditch, flume, or reservoir any rubbish or filth. It is made a misdemeanor for any person to lcnoaingly leave a carcass of any animal iyit,hin a quarter of a mile of any stream of n-ater for a longer period than 24 hours without burying and by such exposure or burial m-ithin 200 feet of any stream, canal, ditch, flume, or other irrigation nTorlcs to so pollute or colitaminate as to render unfit for domestic use any natural stream of water or the water of any canal, ditch, flume, or other irrigation works used by others for domestic purposes. Any person who puts the carcass of any dead animal or the offal of any slaughter pen, corral, or butcher shop into any river, creek, or 1)ond is guilty of a misdemeanor. There are no specific powers granted to the departmelit of public health in the statutes relating to the pollution of waters. Administrative Organization. The Surgeon General of the U. S. Public Health Service has designated the department of public health as the state rvater pollution agency pursuant t'o the Federal Water Pollut'ion Control Act. The department of public health is the administrative organization named to administer the public health laws. What jurisdiction it has in the area of wat,er pollution control is state-wide. At the head of the st,at,e department of public health ie a commissioner of public health, which office is held ex-officio by the governor. The commissioiier appoints a director of public health mho serves as executive and administrative officer of the department. Water pollution control activities are centered in a division of public health engineering created by administrative action. There is no advisory council established by law. Hovever, a voluntary water resources advisory committee has been appointed by the governor. This committee advises the department of public health in connection with its water pollution control and public n-ater supply activities. Powers and Duties. Although specified acta of pollution are made a misdemeanor by the statutes, no provision is contained for summary action. The department of public health is authorized to enter into contracts and cooperative agreements with counties, municipali-
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ties, and scbool districts of the state and with other agencies for the administration of public health. It is also authorized to advise,assist, and cooperate with the federal government or any of ita agencies or other departments in the exercise of any powers and d n t i i of the department. othsr S i t ProvMons of Laws. In the provision of the statutes relating to the prohibition of pollution of any stream or lake which will tend to destroy, drive away from such waters, or kill any fmh, there in an exemption whereby ownem of any quartz mill or reductionworks may operate such quarts mill or reduction pill where the owner han built a suitable dam for settling purposes, provided that before such dam is built the director of the fish and game department shall approve the plan for nuch dam. MONTANA
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G e n d Statement The Montana State Board of Health hss general oversight and careof all waters includmg rivers, lakes, and atreama used 88 source of domestic water supply. In addition to the statutes relating to the control of waters from which
public water supplies are derived, state criminal statutes make it unlawful to place dead snimsls, offal, coal washings, or poison in any well, spring, or reaemoir. The present Montana state statutes p m i t division of responsibility for the control of pollution where it does not d e c t public water supplies. The state fish and game commieaion has been given sta+Atory autbority to control pollution originating in sawmills. Every persan han the right to appropriate water by paetingnotioe on othcr than a decreed stream. If appropriation is from a decreed stream, permission must be obtained from the district judge. The water laws of Montana are baaed on the Rior Righta Doctrine. State regulation prohibita the sale of vegetables grown on land irrigatd with sewage. The statutes permit municipalities to prohibit the sale of milk from cattle grazing on lands irrigated with sewage or waters containing a significant amount of sewage or on lands which have been h d e d by waters containing signi6cant mmta of sewage. The Montana State Board of Health has been designated 88 the state water pollution agency by the Surgeon General of the U. 8. Public Health Service and by legislative action. This designstion wan made to facilitate cooperation with the Public Health Service in the investigative aapects of the Federal Water Pollution Control Act. AQlinistrPtne Orgmization. The state board of health is composed of men membera The administrative and executive head of the board holds the 05ce of executive officerand in re sponsible for the appointment of all subordinate personnel with the c o m t of the board subject to provisions of the merit system. Each division of the board in reapomible to the executive officer. There is no advisory council. Water pollution control activitiw are centered in the division of environmental sanitation. The jurisdiction of the state board of health in matters pertaining to stream pollution control in state-wide,subject to the limitations noted in the general statement. posen aud Duties. The Montana statutes do not speci6dy provide far h h development of a wmpreh&~e stream pollution control program, nor for the setting of standards of water purity, nor for c l d y i n g waters. The state board of health, however, is cooperatingactively with the U. 8. Public Health 8ervice in the prepruntion of a comprehensive pmgram under the provisions of the F e d 4 Water Pollution Control A&. Montana ntatutea require that cities, t o m , corporations, companies, or individualn submit pkna for the dispoaal of sewage where such is located on the watemhed of any public water supply. The statute slso require that anyone drilling a well intended for the supply of the public must furnish the board of health with such information concerning d t m y conditions 88 the board may requeet. Public
health laws of Montana consider underground waters in the 881118 manner as surface streams. Underground waters in this category, therefore, are handled subject to the enme provinions aa surface streams. The board of health may, on complaint, h e orders prohibiting the continuance of any pollution and requiring the removal of any c a w of pollution if it is affecting a public water supply. The use of public hearings aa an aid to securing compliance id not required prior or subsequent to the issuance of a board order. The board has the general authority to bring action in the coude of equity to enforce the board’s order, and the attorney general is required to bring all nuita and actiona thus ordered. Violation of any provision or order of the state board of health is punishable by fine or imprisonment. The state statutes nuthorise the state board of health to make examinations of waters of the state to ascertain their purity and fitness for domestic purpaw and also authorize the board to establish and maintain an Bxperiment station for the purpose of studying the best methods of preventing pollution, for purifying water, and for treating domestic and manufaclwing wastes. An enabling act paaeed in 1949 permits the state board to m e any benefita for the State of Montana available to them under the Federal Water Pollution Control Act and to cooperate with other agenciee and to enter into agreements with other states. Under thin latter provision the board baa secured funds available to them through Public Law 845 and has actively cooperated with the U. 8. Public Health &vice in the development of a comprehensive water pollution control program for the state. The board of health has the power to make such rules and regulations aa it deem necessary to preserve the public health. Under its general powers the board can administer oaths, subpoena witneeses, and take testimony in all matters relating to the exercise and performance of ita powers and duties in conducting public hearings. Hearings are authorized but not required. Other SigniEcmt Provisions of laws. The Montana code does not provide any exemptiona from the juriadidion of the present water pollution control statutes, nor does it provide for the preservation of any edsting rights or remedies. The e m b l i i act of 1949 contains a severability clause. Thin, however, is the only specilic instance. No general statement or policy regarding eeverability c l a w is set forth in the lam. Neither the state board of health nor any other agency primarily intereeted in water pollution control in a member of m &cial interstate compact. The board of health, however, is a member of the Miesouri River Basin Health Council, an up official organization established to coordinate aorta in promoting public health and sanitation in the Missouri River Be& s t a h It is also a member of the Pacific Northwest Pollution Control Council. ’ NEVADA G e n e 4 Statement Leginlation in Nevada dating from 1911 conferred on the state board of health genml superviaion over all matters relating to the p-ation of the health of citisenn of the state. As amended, tiieae lawn authorize the board to promulgate reasoneble rules and regulatiw to prevent and control nuiaanws, regulate &tation and d t m y practioes, provide for the ssnitery protwtion of water and food supplies and the control of sewage disposal. Other laws scattered thmugb the Nevads statutes d e the pollution of laken, rivem, or streams, either generally or by the depoeit of apeci6ed substance, a criminsl offens?. The attorney general, with the wneent of the gownor, Pas the duty of instituting and maintaining actions to
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prevent or restrain n-ater pollution and county commissioners may institut'e and maintain suits against persons depositing sawdust in rivers or streams. Recent legislation (1949) designates the state board of health as the vater pollution agency of the state, authorizes it generally to take all actions necessary or appropriate to secure to this state the benefit's of the federal act (Public Law 845, 80th Congress), and to cooperate with federal, state, and interstate agencies in matters relating to ITater pollution; in addition, specific delegation of authority is made to the state board of health for dealings with the federal government on the financial aid and enforcement aspects of Public Law 845. For purposes of the federal act the Surgeon General of the E.S. Public Health Service ivith the concurrence of the governor of Nevada, designated the state department of health as the Nevada state TTater pollution agency. The state board of health and the state health officer comprise the state department of health. Administrative Organization. The st,ate board of healt,h consists of the governor and four other members appointed by the governor, two of whoni must' be doctors of medicine and one a doctor of dental surgery. Each must have been licensed to practice and have in fact practiced in Nevada for not less than 5 years prior to appoint'ment,. The state health officer is appointed by the state board of health with the approval of the governor. He must be a physician having a degree of doctor of medicine, 5 years' residence in the state and hold a license to practice in Nevada and have had a t least 1 year's postgraduate training in public health or a t least 3 years' experience as a public health official. Appointments of subordinate officers and employees are made by the st'ate health officer with the approval of the state board of health. Kater pollution control activities of the state board of health are centered in the division of public health engineering of the Nevada State Department of Health. Powers and Duties. The state board of health is not given specific statutory direction to develop a comprehensive state program for control of water pollution, but it is assigned the power and duty to cooperate ivith the Surgeon General and other agencies of the federal government in matters relating to vater pollution including the development of programs for eliminating or reducing pollution and improving the sanitary condition of wat'er. KO statute expressly authorizes the board to establish water pollution st,andards, but authority to classify waters according to use and to establish standards by regulation is inferrible from the more general authorizations contained in the laws defining the board's powers. The state statutes do not expressly require permits for the construction, addition, or enlargement of sewage disposal facilities or treatment, plants for industrial wastes except that discharge of sewage or other wastes into Lake Tahoe or the streams tributary thereto is prohibited unless under permit of the state board and subject to installation of such selvage n-orks as may be necessary to provide protection for the mtershed. The state board of health is authorized to hold hearings and summon witnesses to testify before it, and to bring actions in the courts for the enforcement of all health l a w and lawful rules and regulations. In addition, the attorney general, x i t h t'he consent of the governor, is authorized to bring suits to enjoin m t e r pollution. Sone of the statutes prescribe the procedure before the state board of health or the scope of judicial review of its rules and regulations. Presumably, the state courts, in any lit,igation for the enforcement of these rules and regulations or challenging their validity, would try any and all issues de novo and a litigant whose propert,y rights are affect,ed would be entitled to a jury trial of factual issues. The state board of health as a necessary incident' of its general authority to investigate and promulgate rules and regulations for the contrbl of water pollution in the interests of public health would appear to have authority to conduct investigations, studies,
Vol. 43, No. E2
and research for that purpose. In addition it is expressly authorized to accept and expend federal funds granted for such purposes. The laws of 1949 authorize the state board of health to oooperate with agencies of the federal government and other states in matters of x-ater pollution, subject to the reservation that interstate agreements or compacts relating to the control and reduction of the pollution of interstate streams, ponds, and lakes are not to be binding on the state unless and until approved by Congress. The rules and regulations of the state board have the effect of law and supersede all local ordinances and regulations. A copy of every regulation adopted by the state board giving the date that it takes effect must be filed with the secretary of state and copies of its regulations must be published immediately after adoption and issued in pamphlet form to local health offices and citizens of the state. The state board of health is required to make a final report to the governor setting forth the condition of the public health in the state and making recomniendations for legislation, appropriations, and other matters deemed necessary or desirable. Other Significant Provisions of Laws. There are no geographical or functional except,ions under the statutes from which the state board of health derives its powers and duties. One statute, an act relating to the protection of fish and game which makes the deposit of certain substances in the waters of the state a misdemeanor, expressly excepts mille or works for the reduction of ores and the owners or operators of such mills or works. Khether this statute supersedes and thereby engrafts this exception on earlier legislation prohibiting water pollution appears not to have been determined by any authorit,ative adniinist,rat'ive ruling or court. decision. There appear to be no provisions in any of the statutes relating to water pollution that expressly preserve rights or remedies existing a t common law or under earlier statutes, nor do any of the statutes cont,ain statements of policy or severability clauses. Nevada is not a party to any formal interstate compacts for control of water pollution; holyever, through an informal agreement with the California Department of Public Health, discharge of r a v sewage or selvage treatment plant effluents to Lalie Tahoe was prohibited in both states. In Sevada the provisions of this agreement were enacted into the statutes and in California they are currently being enforced by the regional water pollution control board for the Lahontan Region which nov has primary jurisdiction in Californis.
OREGON General Statement. Oregon has a comprehensive water pollution control laF n hich established a sanitary authority nit11 general water pollution abatement, prevention, and control powers and duties. The law declares it to be the policy of the state to preserve the natural purity of its waters. The Tvater code contains numerous provisions stating that the placing of polluting, deleterious, or other offensive substances in or near a body of water conPtitutes a misdemeanor. Cities and tomns are given jurisdiction over property owned and occupied for waterworks, reservoirs, etc., and the maintenancae of any plant or industry R hich pollutes such n ater supply is declai ed to be a nuisance, maintenance of which may be enjoined on petition of the city or appropriate official thereof. There is a provision in Oregon law which authorizes the formation of local sanitary districts. Administrative Organization. Responsibility for enforcemrnt of the provisions contained in Oregon laws relating to water pollution control iE vested in a sanitary authority established as a division of the state board of health. It is composed of three members appointed by the governor and of the state health officer, d a t e engineer, and the chairman of the state fish commission mho serve ex-officio, The state sanitary engineer, who is eniploycd
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2683
by the &ate board of health, serves as secretary and chief engiAlthough the sanitary authority IS neer of the sanitary authority. authorised to represent the State of PonSrs and Duties. The sanitary authority is specifically Oregon in interstate compacts, it has authorized to conduct studies independently or in cooperation not as yet entered into any such inwith others and to prepare a program or program relating to the terstate agreeniente. purity of waters of the state or to the treatment or disposal of sewage and other waste. It is authorieed to represent Oregon in UTAH interstate plana and program6 for control of water pollution and General Statement. Utah legislatoestahliah stgndards of purity of the various waters of the state. tion affecting water pollution control S h W s which now serve ae a guide for determining the degree is mattered through the statutes. of sewage or waete trestment required in specific cases have been Authority for control of various adopted and k e d as Regulation 1of the state Sanitary authority. aspects is shared by the governor, All plans and specifications for the construction of new sewer state board of health, state engineer, systems, sewage treatment plants, waste treatment, or reduction fiah and game commission, local municipal authorities, and plants or extensions or modifications thereof must be submitted hoards of county commissionem. It is of interest to note that to the sanitary authority and approved hy it before construction for purposes of tho Federal Water Pollution Control Act (Public is begun. Law 845, 80th Congress) the state board of health was desThe sanitary authority is authorized to receive complaints, ignated as the state water pollution agency by the Surgeon petitions, or remonstrances from individual cities, groups of General of the Public Health 5mice with the concurrence of the cities, and organizations relative to any condition or situation governor of Utab. which is alleged to involve the pollution of waters of the state The governor, through the attorney general, can bring action and to invastiiate and take action thereon, to hold public hearings to abate pollution of waters, used for domestic pllrposes, caused and publish hdings and recommendations as the result of such by maintaining domestic animals (corrals, manure, sheep dipping, hearings, and to take appropriate action for the enforcement of dead carcases, etc.). The state board of health, to protect the rules, regulations, and orders iasued 88 the result of such drinking and culinary aaters, may regulate industrial and other hearings, and to enforce compliance with state law in regard to camps, summer resorts, privies, cesspools, pigpens, and hog yards. water pollution. The State of Oregon on recommendation of the It supervises sanitation of public swimming and bathing places sanitary authority, the attorney general, or the district or city and derives further supervision and control from its general attorney of a county or city affectedby pollution may sue in law powers to protect the public health. The state engineer's anthoror equity to abate an alleged public nuisance created by pollution ity involves approval for diversion of appropriated waters. For of the waters of +&e state. Any person, corporation, e@., which such approval it must be shown that when returned to streams deems itself aggrieved by any order of the state sanitary authority or lakes the original water will not be deteriorated in quality. has the right to appeal from such order to the circuit court of the The fieh and game commission enforces provisions relating to county in which the afIected property is situated. The statute pollution injurious to 6sh by sawmills, reduction works, and provides for a aummary hearing to he determined as a suit in smelters and alm provisions relating to pollution of waters, used equity a t which the aggrieved permn and the authority'may prefor culinary purposes, caused by fishermen, campers, hunters, or sent evidence and are entitled to compnlmry.attendance of witother permns. To protect municipal water supplies from pollun e s w and the production of h k s and papers. The order of the tion, city councils have authority to enact ordinances and regulasanitary authority is suspended during wch appeal. The state or watertions to prevent pollution or contamination of streeanitary authority is empowered to conduct studies, make incourses which furnish these supplies. Local boards of health are vestigations, and perform research relating to the purity of the responsible for protecting and promoting the people's, health. waters of the state or the treatment or disposal of sewage or other In connection with construction and maintenance of flood control wash. It is empowered to cooperate with the United States projects the boar& of county commissioners are authorized to and with other departments of the state and with industry in the enforce all laws and sanitary regulations against the pollution study and the control of municipal sewage or industrial waste of water in the natural streams, canals, and Iakes of the state. treatment or water pollution. The sanitary authority may ccAdministrative Organization. B e c a w of a lack nf statutory operate with and receive funds from the federal government and implementation with reference to the water pollution control from other state departments for the study and control of municifunctions of the governor, state engineer, fish and game compal sewsge or industrial waste treatment or water pollution. mission, and local municipal authorities the following diacwian It is empowered to represent the State of Oregon in any proof administrative organization and powers and duties is limited ceedings and matters pertaining to plans, pmedures, and/or to the state board of health as the recognized state water pol. interstate compacts in relation to control of pollution of waters lution ageney. of Oregon and adjacent states. The state department of health is compwed of the state board The sanitary authority can hold hearings and summon witof health and the state health commissioner. The board, comnassea. It has invastigatory powers and has general authority pased of seven members, is the head of the department and is to enforce compliance with l a m of the state concerning water charged with administration of all health functions of the state. pollution and can iasue orders after public hearings. There is The state health commkioner is executive officer of the hoard. no permit procednre astabliebed except that approval of plans Water pollution control activities are centered in the division of and apecifieations is required before construction of new or enlarged sewer or treatment plants can he undertaken. It may . sanitary engineering created by administrative action. Though responsibility over water pollution control is divided, the j u r h adopt rules and regulations. diction that the state board of health holds is &atewide. Other S i t Provisions. There are no specific exemptions Powers and Duties. The Utah statutes do not specifically from the operation of the act, but it is recognimd that hardehip authorize the state hoard of health nor any other state agency may reeult from an order of the ennitary authority. In c ~ d enf to develop cnmprehenaivepmgrams for the control of water polundue hardship, the eanitarg. authority may delay enforcement of the order on the entry of written stipulation of the concerned lution. (The state department of health, however, is cooperating parties. Provision is d e in the act that in w e of confict b4 actively with the U. S.Public Health Service in preparation of tween thin and any other statute, the former shall prevail. ' No such programs under provisions of Public Law 845 of the 80th severability clause is contained in the ststute. Congress.)
.
2684
INDUSTRIAL AND ENGINEERING CHEMISTRY
No plan review and permit are necessary from the board or other state agency under state lavs for the construction of any sewers or treatment works or extensions of old sewers and treatment works. This work is made the responsibility of the local communities. Local authorities and their consultihg engineers do confer with the division of sanitary engineering of the state department of health concerning proposed works. New projects in recent years have been those seeking federal aid for planning purposes and a prerequisite for approval of requests for such aid is state approval of plans. The board has no statutory authority to enforce abatement of water pollution except to order any privy or cesspoool disinfected] filled in, or abandoned where such privy or cesspool is within 50 feet of any surface well, spring, or other source of water used for drinking or culinary purposes. The board has general authority to make investigations into the causes of disease and the effect of “conditions and circumstances on the public health.” It is authorized to maintain bacteriological and chemical laboratories and to conduct research therein. There are no specific provisions concerning research into d-ater pollution problems, Under the broad authority given by the statutes, the state department of health has conducted field sampling and laboratory examinations in connection with investigations of water pollution problems. Some of these investigations have been of river-basin extent and conducted over periods up to 9 months. The state department of health is designated as the state department to receive funds which may be made available from federal agencies for all health purposes. The board is not expressly authorized to take action necessary to secure the benefits of the Federal Water Pollution Control Act. The state board of health has the power to make such rules and regulations as it deems necessary for the preservation of the public health, No provision is made in the statute for the holding of hearings. Investigatory and visitatorial powers which are expressed are limited to the board’s functions respecting public bathing places. Other SignXcant Provisions of Laws. The Utah code does not provide for any exemptions from operation of the water pollution control statutes and does not cover the preservation of existing rights and remedies. In the various statutes relating to water pollution there is PO general statement of state policy nor is there contained a severability clause. There are no interstate water pollution control agencies in existence a t the present time that include any portion of the State of Utah.
WASHINGTON General Statement. Washington has a comprehensive water pollution control law. The law established a pollution control commission with general water pollution abatement prevention and control powers and duties. The law states that the public policy of the State of Washington shall be to maintain the highest possible standards to ensure the purity of all waters of the state consistent with public health and public enjoyment thereof, the propagation and protection of wildlife, birds, game, fish, and other aquatic life of the state, and to that end require the use of all known available and reasonable methods by industries and others to prevent and control the pollution of the waters of the State of Washington. There is also provision in Washington laws for the formation of local sewer districts] not to include any incorporated territory] for the purpose of constructing sewer systems in districts and erecting sewage treatment plants. Administrative Organization. The pollution control commission is an independent agency composed of the director of the department of conservation and development, the director of the department of fisheries, the director of the department of game, the director of the department of health, and the director of the
Vol. 43, No. 12
department of agriculture. The commission director is appointed by the governoi and serves as executive officer of the commission and coordinates and supervises its activities, reports on work of the staff to the commission, and has general charge of the operating] staffing] and directing of the commission’s activities. The chief public health engineer of the state department of health is technical secretary of the commission. Powers and Duties. The commission has jurisdiction to control and prevent pollution of streams, lakes, rivers, ponds, inland waters, salt waters, watercourses, and other surface and underground waters of the state. This jurisdiction includes the development of a comprehensive water pollution control program, the determination of qualities and properties indicative of significant pollution of waters, and the classification of the various uses of waters of the state. The commission is required to approve plans and specifications prior to the beginning of construction of new sewerage systems, sewage treatment and disposal plants or systems, or for improvements or extensions to existing sewerage systems or sewage treatment or disposal plants. No provision for licensing a new industry or business n-hich may constitute a source of pollution is contained in the law. When the commission is of the opinion that any person violated any provision of the act, the commission shall so notify such persons, who shall then advise the commission, within 15 days, of the steps being taken to control the pollution. The commission may then issue such order or directive as is appropriate. An administrative hearing is to be granted by the commission to any person who feels himself aggrieved by such order or directive. On conclusion of the hearing, the commission shall issue such order or directive as is appropriate] which shall be final and conclusive, unless a petition is filed within 15 days in the superior court of the county in which the affected system or plant or portion thereof is situated. In court, the order or directive is subject to review and trial de novo as a cause in equity. The effect of the order or directive is stayed pending a hearing by the commission or trial by court, except in case of an emergency affecting the public health. The commission is authorized to bring suit in law or equity to enforce the provisions of the law. Any person who violates a provision of the lam or a final order or directive of the commission is guilty of a gross misdemeanor, subject to jail and fine; each day of violation is a separate violation. In case of emergency on account of any discharge or threatened discharge of waste matter polluting or tending to pollute the waters of the state, the commission shall seek injunctive or abatement relief. The commission or its agent has the right to enter on public or private property a t any reasonable time to inspect and investigate conditions relating to pollution or possible pollution of waters. It is authorized to set standards and to request and receive assistance of any educational institution or state agency when deemed necessary for carrying out the provisions of the law. The commission is authorized to cooperate with the federal government and accept federal funds, to cooperate with appropriate agencies of neighboring states, and to enter into contracts and make contributions toward interstate projects. The commission has authority to adopt and enforce rules and regulations and standards consistent with known available and reasonable methods of preventing pollution and consistent with public welfare; it may issue permits for building sewerage systems without which construction cannot be started. Other Significant Provisions of Law. The law contains no severability provision but does provide that in the case of conflict between this law and other laws relating to the pollution of waters, this law shall be deemed and construed as auxiliary to and supplementing the prior law and in addition to the laws now in force, except as the same may be in direct conflict herewith. There is, in the Washington laws, a provision which allows mu-
December 1951
INDUSTRIAL A N D ENGINEERING CHEMISTRY
a685
division of environmental sanitation in estgblishing a comprehensive program for the prevention and control and abatement of pollution in waters of the state. The juriediction of the department of public health regarding water pollution control is statewide. Powers and Dutiea. The Wyomhg - statutes do not specifically provide for the development of a comprehensive program nor for the setting of standards of water purity nor for classiryins waters. The state department of public health, however, ka been actively coopersting with the public health service in preparation of comprehensive stream pollution control programs as provided for in the Federal Water Pollution Coutrol Act. There appears to he no handicap from the lack of specific authority. State statutes provide that plans for sewage disposal SVatema for all cities, t o m , corporations, or persons must be submitted to the department of public health for review and approval prior to the construction of the facility. The statutes also provide that no sewage, refuse, or other poll~tingmaterial can be dieCnarged into streams, lakes, or ponds unlesa it baa been properly purified. The law provides that no city or town can be prohibitedor enjoinedfromdischargingitssewageintoariverorbody of water unless it can be shown that the pollution is dang,am~a and injurious to the public health. In this respect, any pollution which advwely afiects livestock, agricultural crops, wildlife, fish, or aquatic life is also deemed to afiect public health. Upon receipt of a complaint the department of publio health may issue orders prohibiting the continuance of any pollution.
nicipal governing bodies to form a Bewer utility, sell revenue bonds, and collect service chsrgea without a vote of the people.
worn6 G e n a l Statcment Legidation &ecting water pollution control in the State of Wyoming was amended in 1951 to center control d v i t i e in the state department of public health. The statutes provide that the state department of health ka a g e n ~ a l responsibility for the overnight and care of all waters in streams, lakes, and ponds with respect to their condition and use an &eOt inp public health, livestock, agricultural crops, wildlife, fish, or aquatic life. The revised statutes also created an a d v h w council to &t in e t a b l i i policie atrecting the sanitary q d i t y
of waters of the state. The council, which is appointed by the governor, consists of the director of the state department of public health, the state game and fish commissioner, the state &ear, the state commiseioner of agriculture, and five other members,one of whom must be a representative of induetry and one a repreaentstive of municipal government. The criminal statutes of the State of Wyoming make it unlawful for the ownw of any sawmill, smelter, or any other type of induatri.l work or any persnn to deposit wastes or deleterious sub stencss that might tend to destroy fish or render the waters unfit for irrigation, livestock, or other purposes. Like*, it is unlanful to poison any ~priog,well, or reservoir water. Admini.tn tive organiration. The Wyoming State Department of Public Health oonsista of two divisions, the state board of health and the division of adminiatration. The board of health acts in an advisory capacity to the director who is the administrative and executive head of the division of administration. T h e water pollution control activities of the department of healtb am centered in the division of environmental sanitation. The stream pollution control d v h w council functions to assist the
T&h I. Summary ofStatus of Legidation and Administration on W a t u Pollution Control of Nine W u t v n S t a t u AriMlu
California
Idaho
1
No
No
NO
a
No
No
No
8
No
?dont.na No
No
NO
No No Yea
Utah No
Wsahinrton Yea
Tot& 2ysa; 7no
No No
No
2 Ye.;
No
NO
1 Ye.;
sno
Yea
Yea
Yea
Yed
9yea;
on0
.Nevada Oraaon
No
Ysa
Yed
Yen
Yed
7 no
4
Yea
Yell
Ya
5
Yea
No
NO
Yee
No'
Yea
No
Yes
5 Y a ; 4no
Yea
Ye.
Yea
Yea
9yea;
,
Yea
Y*S
7
Yea No
Yes
No
NO
No1
No
No
No
NO
OYW 9no
8
Yea
Ye.
NO
Yed
Yea
Yea
No
Yea
7yea; 2no
NO
Yes'
Yea0
No
NO
NO
No
2 yes; 7 no
NO
NO
No
No
No No
N O NO
NO
Ne
NO
NO
OYsai o n 0 2YUi 7no
6
9
10 11
N? NO
Yea
Yea
NO
on0
12
No
Yea
N O
No
No
Yea
No
Ye8
3yed: en0
ia
Ye@
NO
Ye@
Yea NO
No Yes
YSS
Ye.
Yea
14
Yea Yell
No
7 ye.; a 5 Y W 4no
16
Ye0
Yea
Yea
Yea
Yea
Yes
Yea
Yea
eye.;
No
No' No
NO
NO
NO
1 yea; 8 n0
18 17 18
Yea
No
Ne No No NO Yaad No Dspt. Dept. Poll. control Dept. h d t h hdth hdth bod
Ye.
'
No
Yea! Yen. No &nitem Dapt. Poll. oontml Dapt. mth; hdth oomm. hedth
0 no
3Ycs' %no 6 De&. hedth; 3 pollution control *wnaia
2686
INDUSTRIAL AND ENGINEERING CHEMISTRY
Persons aggrieved by an order of the department may appeal in the district court having jurisdiction. Tlie district court must,, on applicat,ion of the state department of health, enforce the department's orders, rules, and regulations. 1-iolation of any order of the stat,e department of health is punia1iai)le by fine or imprisonment. The st,atut,esgive to the department of pnblic health authority to make investigations where they pertnin to Fvater pollution. The division of environmental snnitntion h:is been actively engaged in investigating domestic and iiidueti,i:il pollution in t,he waters of the st'ate during the past year. There is no specific statutory authority to cooperate with other states or R-ith the federal government and the staite department of public health is not, expressly authorized to take actions necessary to secure the benefits of the Federal K u t e r Pollution Control Act. However, the pattern of roopeiatiori \\-it11 Federal agencies during the past indicates that such cooperative efforts are sanctioned by the state government. It is believed that the statutes contain general authorization for the nccc~p1:unceand administration of federal aid monies. The procedures relative to the m:il- to hold hearings, administer oaths, subpoena ivitiie t,estimony in all niat,ters relating to the exercise of its po\\-ers and duties. The department has illso been gr:iiited irivest,igatory and visitoriiil powers necessary to carry out the scope oT its functions. Other Significant Provisions of Laws. The state statutes of Wyoming specify no exemptions in the authority given tlie state water pollution control agency, neither do they cover the preswvation of existing rights and remedies. Tllere is no yeiirral statement of state policy relating to ivater pollution in (,hestatutr, nor is there contained a severability clause. The St,at,eof Wyoming is not a t present :I menlber of any interstate sanit,ary compact but is a menher and an active part,iciparit in the Alissouri River Basin I'ublic Health Council, an unofficial organization established to coordinate efforts in promot,ing public health and sanitation in the RIissouri River Rwsiii states. The statutes of the State of T\')-oming governiiig the financing of pollution abatement works are quite broad :ind comprehensive. Both revenue bonds arid general obligation bonds may be used for the financing of sewerage works. General obligation bonds are limited to 4% of the assessed valuation of taxable property in municipalities and 10% of tlie assessed valuation in sanitary districts. There are no limitations on the issunwe of revenue bonds. Specific statutory authorieatioii for the Corniatiori of sanitary districts outside incorporated areas was provided by l,liil 1950 legislature, Apparently there are adequate pi,ovisioris fov t,he formation of districts within corporate limits.
Vol. 43, No. 12
two states, Oregon and Washington, set standards for treated effluent'; two states, Kevada and Oregon, provide for stream classification; and the remaining six states use neither of these approaches but consider each water pollution control case solely on its o v a merits. Approval of ne>!- treatment plants is required in five of the nine st'ates. Permit' for all discharges is required in only one state, Arizona, although Kevada requires permits where the formation of a sanitary district is involved or where the proposed discharge of xastes is to Lake Tahoe or its tributary streams. Rules and regulations have been promulgated in three states; those of Oregon and Kashington are quite definitive and in considerable detail. The table s h o w uniform practice in five of thr eightern items: all the st'ates indicate that each case is considered on its own merits despite the fact that three of them either set jtandards for treated effiuent or have provisions for stream classification; all states can advise or help in plant design; none of the states requires primary treatment of all wastes; no states allow any exemptions; and in all states agencies other than t'he state n.ater pollution agency are charged with the responsibility for enforcing laws relating to water pollution control. I n six of t'he statex the state health department is the off designated state water pollution control agency. In California, Oregon, and Washington, a separate board, authority, or commission has been designated as the state agency. ACKNOWLEDGMENT The authors aIe deeply grateful to R. E'. Poston, Officer in Charge, Tl'estern Gulf and Colorado Diainage Basins Office, x h o prepared the digest on Arizona laws; to G. J. Hopkins, Officer in Charge, blissouri Drainage Basin Office, who prepared the digests on the Montana and Wyoming laws, and to the ieepective state Rater pollution agencies which reviened and checked the information in this paper. RICTITLD i i g u s t 24 1951
.
4wOO0,
,
I
,
I
I
.
,
.
,
.
.
--
,
300pOO
2040M)
10,000 3,000
I
SUMMARY O F STATUS OF LEGISLATION AND ADMINISTRATION
As a means of comparing tlie legislative and administrative provisions of the indiyidual states and in order to give a better over-all picture of water pollution control programs in the nine western states, the accompanying t,a.hie has been prepared which summarizes the provisions under 18 different, items. Table 1 v a s prepared from information in the foregoing section of this paper, from the latest digest of bvater pollution coiitrol laws prepared by t,he Western Pet'roleum Refiners Association, from the special report on industrial waste t,reatment which appeared in the June 1951 issue of I n d i i ~ t ~and g Poww,and from the files of the California Institute of Technology, Pasadena, research project on water quality criteria. Furthermore, the entries in the table have been checked by the respective state m t e r pollution control agencies. A few interesting comparisons in tlw ta\)le are noted: Only
/LFUEL OIL FOR
HEATING
1
(barrels)
4 -
_________------
- - - - ---v
3 #
--.------c
\
G r o w t h of Los Angeles County-1930-1950
