Problems and Approaches
to
Areawide Water Quality Management
APPENDIX B
States Reports
A Report Published
By the School of Public and Environmental Affairs,
Indiana University, Bloomington, Indiana 47401
for the
Water Planning Division
Environmental Protection Agency
n.
October 1973
Contract Number 68-01-0199
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Problems and Approaches
to
Areawide Water Quality Management
APPENDIX B
by
School of Public and Environmental Affairs
Indiana University
for the
Water Planning Division
Environmental Protection Agency
Contract Number 68-01-0199
October 1973
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EPA Review Notice
This report has been reviewed by the Environmental
Protection Agency and approved for publication.
Approval does not signify that the contents necessarily
reflect the views and policies of the Environmental
Protection Agency, nor does mention of trade names or
commercial products constitute endorsement or recommenda-
tion for use.
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ABSTRACT
This report delineates some of the legal and management prob-
lems which emerged from a legal and administrative review of
the implementation of §208 (c) (2) and its relationship with
§208(b)(2)(C) of the Federal Water Pollution Control Act of
1972 (Act). The study on which the report is based is the
result of a fifteen (15) month effort that included a review
and analysis of state laws in the U.S. and an assessment of
a selected sample of wastewater management organizations of
varying areal jurisdictions. The study consists of a main
report with two appendices separately bound plus an executive
summary.
The review and analysis of the laws of the fifty states
focused on (a) whether the organizations empowered to manage
wastewater treatment facilities currently have adequate
authority to qualify for federal assistance under the Act
and (b) the authority to implement the organizational arrange-
ments and policies described in Sections V and VI of the
report.
A selected group of existing management organizations were
examined as a means of (a) identifying and describing prob-
lems that may emerge in establishing wastewater management
agencies in accordance with the provisions of the Act, and
(b) developing alternative management models capable of
satisfying the performance criteria developed in this report.
The primary focus of §208(b)(2)(C) is on two innovations in
wastewater management: (1) adequate authority to manage
wastewater activities on an areawide basis significantly
broader than those currently operating, and (2) capability
and authority to undertake water quality planning and manage-
ment through control over point and nonpoint pollution sources
and the control of the location of wastewater treatment facil-
ities and other discharge sources.
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ACKNOWLEDGMENTS
Professors Richard S. Howe and Nicholas L. White of Indiana
University School of Public and Environmental Affairs and
School of Law, respectively, directed the substantive work of
this project and take editorial responsibility for preparing
the final report.
Participating in the research and in the preparation of this
report were senior researchers George A. Fruit, J.D., and
Michael R. Gill, M.P.A., and researchers Gary Brown, Sandra
Dukes, Walter Hasenmuller, Nina Hatfield, F. James Helms,
Steven Johnson, David Mallon, Robert McConnell, John McGee,
Cliff Potter, John Sharpe, William D. Welty, all from the
Bloomington Campus of Indiana University.
A number of individuals provided advice and counsel during
the study. The Board of Advisors to the project was comprised
of Elwood Barce, Vice President, Paul D. Speer and Associates,
Chicago, Illinois; Blair T. Bower, Associate Director, Quali-
ty of the Environmental Program, Resources for the Future,
Washington, D. C.; N. William Hines, J. D., Professor of Law,
University of Iowa; Thomas McKewan, Director, Environmental
Service, State of Maryland, Annapolis, Maryland; John G.
Morris, President, J. G. Morris Environmental Engineering
Associates, Wheaton, Illinois.
In addition, consulted regarding particular aspects of the
study were Irving K. Fox, Director, Westwater Resources
Center, University of British Columbia, Vancouver, British
Columbia; Anthony H. J. Dorcey, Assistant to the Director,
Westwater Resources Center, University of British Columbia,
Vancouver, British Columbia; Wayne Echelberger, Ph.D.,
Professor, School of Public and Environmental Affairs,
Indiana University, South Bend; and Robert H. Maynard, LLM,
Attorney, Smith and Schanke, Dayton, Ohio (formerly legis-
lative assistant to the United States Senator Thomas Eagleton)
Administrative and technical support for the project was pro-
vided by the Division of Research of the School of Public
and Environmental Affairs. Mr. Ralph K. Jones, Associate
Director of the Division, managed this aspect of the project.
Gary P. Simmons, Ed.D., and Gary J. Scrimgeour, Ph.D., pro-
vided editorial support in the development of the final re-
port and made major contributions to the design of the Exe-
cutive Summary. Donald M. Goldenbaum, Ph.D., assisted with
the mail survey. Fred N. Fromm and Cynthia Williams co-
ordinated publication activities related to the project.
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Individuals from whom information was requested were general-
ly most cooperative and in particular instances went beyond
the call of duty. We appreciate these efforts on our behalf.
Bernard R. Hyde, Jr., Project Officer for the U. S. Environ-
mental Protection Agency responded promptly to our requests
for information and generally facilitated the completion of
this project. David A. Eberly succeeded Mr. Hyde as project
officer in the later stages of the work and he was very help-
ful in bringing the project to a close.
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APPENDIX B
TABLE OF CONTENTS
INTRODUCTION
FORMAT FOR STATE REPORTS 5
PART 1
1.0 OVERVIEW 5
1.1 Description of Existing Agencies 5
1.2 Schematic Diagram of Existing Agencies. ... 5
PART 2
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT
MANAGEMENT AGENCIES, INCLUDING THEIR POW-
ERS AND AUTHORITIES, AS SUCH RELATE TO
CERTAIN PROVISIONS OF §208(c)(2) AND SE-
LECTED RELATED SECTIONS OF THE ACT 6
2.1 Authority Directly or by Contract, to De-
sign and Construct New Works and to Operate
and Maintain New and Existing Works as Re-
quired by Any Areawide Plan. [§208(c) (2)
(C)J 9
2.2 Authority to Accept and Utilize Grants, or
Other Funds From Any Source, for Waste
Treatment Management Purposes. [§208(c)
(2) (D) ] 10
2.3 Authority to Raise Revenues, Including the
Assessment of Waste Treatment Charges.
[§208(c) (2) (E) ] 11
2.3.1 Each Category of User Will Pay Its
Proportionate Share of the Costs of
Operation and Maintenance (Includ-
ing Replacement) of Any Waste
Treatment Services Provided by the
Agency [ § 20 4 (b) (1) (A) ] 12
2.3.2 Full Recovery Will Be Had From the
Industrial Users of the Waste
Treatment Works of the Federal Por-
tion of the Construction Costs of
Treatment Works Reasonably Attribu-
table to Treatment of Such Indus-
trial Wastes. [§204 (b) (1) (B)] . . . . 13
2.4 Authority to Incur Short- and Long-term
Indebtedness [ § 20 8 (c) (2) (F) ] 15
2.4.1 General Obligation Funding 16
2.4.2 Special Funds and Revenue Funding. . . 16
2.4.3 Other Methods of Financing 16
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2.5 Authority to Assure in Implementation of
Its Waste Treatment Management Plan That
Each Participating Community Pay Its Pro-
portionate Share of Treatment Costs.
[§208(c) (2) (G)] 17
2.6 Authority to Refuse to Receive Any Wastes
From Any Municipality or Subdivision There-
of, Which Does Not Comply With Any Provi-
sions of an Approved Plan Under §202 Appli-
cable to Such Area. [§208 (c) (2) (H) ] 19
2.6.1 Authority to Deny New or Additional
"Hook-ups" (Moratorium Effect) 20
2.6.2 Authority to Assess Penalties, Sur-
charges and Similar Sanctions
Against Municipalities or Subdivi-
sions Thereof Which Do Not Comply
with the Areawide Plan 20
2.7 Authority to Accept for Treatment Industri-
al Wastes. [§208(c) (2) (I) ] 21
PART 3
3.0 SUMMARY .. . . 22
3.1 Deficiencies 22
PART 4
4.0 BIBLIOGRAPHY 22
STATE REPORTS
Region I
Connecticut 27
Maine 35
Massachusetts 41
New Hampshire , . 49
Rhode Island 57
Vermont 67
Region II
New Jersey 79
New York 87
Puerto Rico 95
Virgin Islands ... 99
Region III
Delaware 107
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District of Columbia 115
Maryland 127
Pennsylvania 143
Virginia 155
West Virginia 165
Region IV
Alabama 175
Florida 185
Georgia 193
Kentucky 199
Mississippi 209
North Carolina 219
South Carolina 225
Tennessee 237
Region V
Illinois 247
Indiana 263
Michigan 279
Minnesota 293
Ohio 309
Wisconsin 319
Region VI
Arkansas 333
Louisiana 341
New Mexico 349
Oklahoma 359
Texas 369
Region VII
Iowa 383
Kansas 393
Missouri 401
Nebraska 413
Region VIII
Colorado 425
Montana 439
North Dakota 447
South Dakota 453
Utah 461
Wyoming 467
Region IX
Arizona 475
California 483
Hawaii 497
Nevada 505
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Page
Re gi on X
Alaska
............
Washington ........... ' ........
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INTRODUCTION
This appendix contains brief surveys of the laws of the fifty
states plus the District of Columbia, Puerto Rico and the
Virgin Islands as such laws relate to the legal capacity
of waste treatment management agencies within the states
to comply with the requirements of §208(c)(2) of the Federal
Water Pollution Control Act Amendments of 1972 (Act). When
§208 areawide planning and management is implemented within
a state, the requirements of §208(c)(2) and related sections
of the Act must be met by waste treatment management agencies
in order for them to be eligible for federal grants for con-
struction of treatment works. Pursuant to §208 (c) (2) it
is the Administrator of the Environmental Protection Agency
(EPA) who determines whether the designated management agency
meets these requirements:
(2) The Administrator shall accept any such designation,
unless within 120 days of such designation, he finds
that the designated management agency (or agencies)
does not have adequate authority --
(A) to carry out appropriate portions of an areawide
waste treatment management plan developed under
subsection (b) of this section;
(B) to manage effectively waste treatment works and
related facilities serving such area in conformance
with any plan required by subsection (b) of this
section;
(C) directly or by contract, to design and construct
new works and to operate and maintain new and
existing works as required by any plan developed
pursuant to subsection (b) of this section;
(D) to accept and utilize grants, or other funds from
any source, for waste treatment management purposes;
(E) to raise revenues, including the assessment of
waste treatment charges;
(F) to incur short- and long term indebtedness;
(G) to assure in implementation of an areawide waste
treatment management plan that each participating
community pay its proportionate share of treatment
costs;
(H) to refuse to receive any wastes from any municipal-
ity or subdivision thereof, which does not comply
with any provision of an approved plan under this
section applicable to such area; and
(I) to accept for treatment industrial wastes.
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When considering the impact of §208(c)(2), it must always
be borne in mind what constitutes a waste treatment manage-
ment agency under the Act. Under the Act, the word management
envisions more than operation of a waste treatment works
although "treatment works" is defined broadly in §212(B).
A waste treatment management agency may have many functions ,
only one of which is the construction and operation of a
publicly owned waste treatment works for treating waste
waters discharged into its system.
A waste treatment management agency whose primary or sole
function is the operation of a waste treatment works may
comply with the requirements of §208(c) (2) if other agencies
operating in the area served by the applicant satisfy the
other requirements of the section. In other words, one
waste treatment management agency may perform all the required
functions, or several agencies operating in the area --
each performing different required functions -- may collec-
tively perform all the required functions. One function is
construction, operation and maintenance of publicly owned
waste treatment works. Other functions include, but are
not limited to, planning, regulation (including establishing
of standards), identification of non-point sources of pol-
lution and procedures to control such non-point sources,
enforcement, and similar activities all of which when con-
sidered together constitute the plan to improve water quality
in the area.
This format and the state reports follow the same order as
the requirements appear in §208(c) (2) . Each state report
begins with a brief overview of the existing agencies charged
with water quality control in the state. The state reports
are arranged in order by regions -- I through X as estab-
lished by EPA.
WHEN READING A STATE REPORT, THE CORRESPONDING PARAGRAPH
IN THIS FORMAT SHOULD BE READ FIRST. In this manner, the
state report which may be brief will be more meaningful.
If a state has no specific statutory authority authorizing
an agency to perform certain required acts or certain re-
quired functions, the analysis in the format may indicate
that the authority may be implied and the reasonina sup-
portive of the implication.
Due to the fact that many agencies operate under unpublished
(or, at least, not readily available) rules_and regulations,
many state reports are not "complete" in this respect.
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Basically, the reports concentrate on state statutory pro-
visions which create and govern the management agencies.
In states which permit local units of government to govern
themselves -- i.e. states having "home rule" provisions
for local governments -- reference is not made to the forms
of government and administration adopted by such local units.
There are numerous forms of government adopted by such local
governments, and the local legislation is not readily avail-
able. In the final determination, however, of whether a
designated waste treatment management agency will be accept-
able to the Administrator, these duly promulgated and/or
enacted local regulations and laws must be considered.
In nearly all states, there is a heightened awareness of the
necessity for water quality control. Due to the fact that
many states have only recently enacted environmental legis-
lation and this legislation has not yet stood the tests of
time or operation of the courts, the effect of this legis-
lation is still uncertain. In other states, legislation
which has been in force many years is not readily adaptable
to, or does not provide an adequate legal basis for handling,
current water quality control problems. The date on each
state report indicates the year of the latest supplement
to that state's laws which supplement was available at
the time that the state report was prepared.
Suggested remedial legislation arranged in the same order
as the format and state reports appears in separate Appendix
A.
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FORMAT FOR STATE REPORTS
Part 1
1.0 OVERVIEW
1.1 Description of Existing Agencies
A brief description of existing waste treatment management
and pollution control agencies serves as an introduction to
each state report. Existing agencies are identified and the
general functions of each noted. Such general functions in-
clude planning, standard-setting, regulation and control,
enforcement and treatment.
Since the study focuses on waste treatment management agencies,
these agencies are specifically identified and described by
function -- e.g., construction, operation and maintenance of
publicly owned treatment works; identification of non-point
sources of pollution and control thereof; etc. Existing man-
agement agencies in the states include the following types,
among others: (i) municipal (serving its own constituents and
possibly other municipalities or non-incorporated areas by
agreement) ; (ii) county (which may or may not include some or
all of the incorporated municipalities within the county);
(iii) special district (comprised of two or more municipalities
and possibly unincorporated areas, or one municipality and
unincorporated areas); (iv) regional or areawide (generally
larger than districts and comprised of many political subdivi-
sions including inter-county agencies); (v) other.
Certain management functions may also be performed by state
level agencies operating within the area of jurisdiction of
other management agencies . The pow.ers , duties and authority
of these management agencies are only noted generally in this
part of the report. More specific analysis is se forth in
Part 2 in the context of the powers and authorities necessary
for an agency (agencies) to be acceptable to the Administrator
as having "adequate authority."
1.2 Schematic Diagram of Existing Agencies
To facilitate understanding of the reports, a schematic diagram
or table of organization of existing state agencies is furnished.
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Part 2
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208 (c) (2) AND
SELECTED RELATED SECTIONS OF THE ACT.
Whenever reference is made to waste treatment management
agencies, or to waste water management agencies, it is assumed
that each includes, but is not limited to, treatment -- i.e.,
construction, operation and maintenance of treatment works.
The overall concept of management includes functions in addi-
tion to treatment as defined in the Act. In other words, when
"management" is considered, it is more than treatment -- it is
overall management of the problems of water quality control.
It should be noted that §208(c)(1), to which reference is made
in §208 (c) (2) , describes such agencies as "waste treatment
management agencies." Such agencies need not be, and in many
instances should not be, limited merely to the operation of
treatment works.
The provisions of §208(c) (2) establish criteria by which
the Administrator must evaluate waste treatment management
agencies applying for construction grants from EPA. The
Administrator shall accept the designated waste treatment man-
agement agency making application unless the agency does not
meet the criteria. Generally these criteria require that such
management agencies be in compliance with an areawide waste
treatment management plan adopted pursuant to §208 (b). This
areawide plan includes, in addition to providing for treatment
of waste water (collected residential, industrial and commercial
sewage) discharged into its system, procedures for identifying
and controlling nonpoint sources of water pollution such as agri-
cultural runoff, mine-related sources, construction related
sources and salt water intrusion. In many states, the agency
or agencies responsible for the operation of publicly owned
treatment works have little or nothing to do with identifica-
tion and control of nonpoint. sources of water pollution. Typi-
cal examples of agencies having authority over nonpoint sources
include department of agriculture (agricultural runoff),
department of forestry or conservation (silvaculture runoff),
department of building inspection (construction runoff), de-
partment of mines (mine-related runoff), and the board of health
which may become involved if the safety of water supplies is
endangered. Some of these responsibilities have now been
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consolidated in water quality control agencies and similar
agencies, but lines of authority and responsibility are still
unclear in many instances. One object or purpose of the area-
wide plan is to coordinate or consolidate these responsibilities
to overcome the existing uncertainties and to provide more
efficient control and enforcement. Some agency or agencies --
not necessarily the agency operating a publicly owned waste
treatment works -- should be responsible for considering, eval-
uating and implementing the whole range of options available
to improve water quality including, but not limited to, re-
cycling, acquisition of land for treatment purposes and dis-
posal of residuals. §208(b) which mandates the areawide plan
certainly envisions this.
Effect of Areawide Plans
In several sections of §208(c)(2), specific reference is made
to the areawide waste treatment management plan as it relates
to waste treatment management agencies. In §208(c)(2)(A), the
management agency must be authorized "to carry out appropriate
portions of the areawide waste treatment management plan." It
is assumed that "appropriate portions" is determined both on a
geographical and on a functional basis. A waste water manage-
ment agency operating, or proposing to operate, a waste water
treatment works as its function must "carry out" this functional
portion of the areawide plan in the geographical area assigned
to it.
When such areawide plan is developed, analysis can be made as
to the legal capacity of an existing agency to carry out its
appropriate portion (function) of the areawide plan. The area-
wide plan set forth in §208(b) (2) shall include, but not be
limited to, the following:
(A) Identification of treatment works necessary to meet
anticipated municipal and industrial waste treatment
need for a twenty-year period.
(B) Establishment of construction priorities.
(C) Establishment of regulatory programs.
(D) Identification of measures necessary to carry out
the plan.
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(E) A process to identify (i) measures necessary to
carry out the plan and (ii) the economic, social and
environmental impact of carrying out the plan.
(F) A process to (i) identify, if appropriate, agricul-
turally and silvaculturally related nonpoint sources
of pollution and (ii) set forth procedures to con-
trol such sources.
(G) A process to (i) identify, if appropriate, mine-
related sources of pollution and (ii) set forth
procedures to control such sources.
(H) A process to (i) identify construction activity
related sources of pollution and (ii) set forth
procedures to control such sources.
(I) A process to (i) identify, if appropriate, salt
water intrusion, etc. and (ii) set forth control
procedures for such intrusion where such procedures
are otherwise a part of the waste treatment manage-
ment plan.
(J) A process to control the disposition of all residual
waste generated in such area which could affect
water quality.
(K) A process to control the disposal of pollutants
on land or in subsurface excavations within such
area to protect ground and surface water quality.
As noted previously, the functions of the waste treatment
management agency (grant applicant) may, and in many instances
will, encompass more than operation of treatment works. This
report is concerned, however, with the grant procedure for
construction of publicly owned treatment works, and that func-
tion -- operation of treatment works -- is emphasized. It
must be remembered, however, that some agency or agencies op-
erating within the geographical area covered by the areawide
plan must be capable of carrying out the other required func-
tions of the plan. It should also be borne in mind that many
agencies legally capable of operating treatment works may not,
for example, have the legal capacity to regulate and control
non-point sources of pollution or to perform other required
functions of the areawide plan.
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Ability to Manage Effectively
In §208 (c) (2) (B) , the management agency must be authorized
"to manage effectively waste treatment works ... in con-
formance with any plan required by subsection (b) of this sec-
tion (§208)." The ability to manage "effectively" is not
considered a legal question, but rather a management analysis
question -- i.e., is the agency adequately staffed with quali-
fied personnel, etc. The ability to manage effectively may
be affected by state laws, or lack thereof, which hinder com-
pliance with the requirements of §§208 (c) (2) (C)- (I) . To this
extent, the required ability to manage effectively is conse-
quentially treated in parts 2.1 through 2.7 of the reports.
§§208(c)(2)(A) & (B) Not Covered in State Reports
For the foregoing reasons analysis of subsections (A) and
(B) of §208 (c) (2) are limited or omitted in the state reports.
The remaining subsections, (C) through (I), are considered.
2.1 Authority, Directly or by Contract, to Design and Con-
struct New Works, and to Operate and Maintain New and
Existing Works as Required by Any Areawide Plan.
[§208(c) (2) (C)] .
This necessary authority presents a rather straightforward
question as to a management agency's capacity to contract
and to operate a waste treatment works. Existing management
agencies whose function is the operation of treatment works
obviously have such authority. The exercise of such authority
may, however, be subject to approval of, or authorization
by, a legislative body or superior administrative agency. In
addition, there are procedures which must be followed when
entering into contracts. These approvals and authorizations
should be obtained before the grant application is made.
These do not, however, detract from the ability or capacity
to contract, but merely establish the procedures which must
be followed.
An areawide plan may require the management treatment agency
to serve users (dischargers of waste water) from areas beyond
its political jurisdiction. There may exist legal constraints
that would prevent an agency from furnishing such services.
As an example, the areawide plan may call for a city sanitary
sewer district to serve neighboring villages and unincorporated
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areas outside its jurisdiction. In many cases this can be
overcome by the agency's power to contract with such ''outside"
users to furnish the treatment service.
In most states, this requirement of authority to construct and
operate treatment works presents no unique or unusual legal
problems.
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
[§208(c)(2)(D)].
This necessary authority also presents a rather straightforward
legal question in most states, and no unusual problems are en-
countered. In some states, however, the agency's authority to
accept grants and funds may be subject to approval of a planning
agency or superior administrative agency. Such approval, if
required, should be obtained before the grant application is made,
In some states, statewide, regional or areawide agencies may
receive the funds or grants and disburse them to the operating
management agency. If such receiving and disbursing agencies
have the authority to divert grant funds, a substantial problem
is posed by §208(d) which provides that, after the designation
of a waste treatment management agency has been accepted by
the Administrator pursuant to §208(c), "the Administrator shall
not make any grant for construction of a publicly owned treat-
ment works under section 201(g)(1) within such area except to
such designated agency and for works in conformity with such
plan (areawide plan)." This problem is easily averted in several
ways. First, the areawide plan can limit the function of such
disbursing and receiving agency to that of a conduit and/or
auditor. Second, the terms of the grant will prohibit such
diversion, and such terms will control i.e. the funds can
only be used as set forth in the grant. If, however, this ap-
pears to be a problem in a particular state, remedial legisla-
tion should be enacted to overcome it. To the extent that such
receiving and disbursing agencies perform services of value to
the project, provision for reasonable compensation for such
services should be part of the grant application.
In some states the authority to accept grants, particularly
federal grants, is provided by statute. In others, such author-
ity rr.ay be implied. It is noted in the reports whether there
is^ express statutory authority or whether it is implied, or,
in some very few instances , whether a state statute poses a
problem.
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2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [ § 208 (c) (2) (E)] .
This necessary authority to raise revenues, including the as-
sessment of waste treatment charges, presents several legal
problems. First, the agency's authority to raise revenues may
be limited to levying, or may include a mandate to levy, taxes
or assessments on users (dischargers) which taxes or assess-
ments are not based on the characteristics of the waste waters
received from the user. Second, the authority to charge users
may be a general authority to charge with no statutory require-
ments that the characteristics of the discharge be considered
when determining the charge for services.
These problems arise since the authority to assess waste treat-
ment charges is qualified by several provisions of §204(b).
§204(b)(1) sets forth certain conditions which must be met if
a grant application is to be approved. Among these are: (i)
the applicant has a system of charges that assures that each
category of user will pay its proportionate share of costs of
operation and maintenance (including replacement) of waste
treatment services, ("user charges"), and (ii) the applicant
has made provision for industrial users to pay to the waste
water treatment agency that share of the federal portion of
construction costs of new facilities allocable to treatment
of such industrial users' wastes ("industrial cost recovery").
These two qualifying factors are considered in the reports.
(See parts 2.3.1 and 2.3.2 following.) §204(b)(2) requires
that criteria to determine the adequacy of waste treatment
charges include all factors affecting costs of treatment such
as strength, volume and delivery flow rate.
It should be noted that only some states statutorily provide
for assessing treatment charges based on characteristics of
the discharges being treated. Most states provide, if at all,
that treatment agencies have the general power or authority
to charge for their services. It is noted in the reports whether
this has been construed to include the assessment of waste treat-
ment charges based on characteristics of discharge or, if not,
whether it is reasonable so to do under state laws. (See oart
2.3.1 following.)
With respect to publicly owned and operated treatment works,
waste treatment charges are not usually subjected to regulation
by other administrative agencies such as public utilities com-
missions. If such regulatory authority exists, however, few or
no problems are foreseen, since this is an administrative
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procedure and both are public agencies with no privately-
owned, profit-making utility company involved.
The report is limited to use of a charge system to recover costs
of operation and provide for replacement (user charges), and to
repay costs of construction (federally and locally financed
industrial cost recovery). The use of waste treatment charges
as a method of regulation or as an incentive to "clean-up" dis-
charges into the system is not considered in the reports.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency. [ § 204 (b ) (1)TA) ]
As noted in preceding part 2.3 and as provided in §204(b) (2),
the ability to assess user charges must include the ability
to charge based on such characteristics as volume, composition
and delivery flow rate of effluent discharged by the user.
"Category of user" is deemed to include the following general
categories: (i) residential, (ii) commercial, (iii) industrial
and (iv) other. The "other" users may include public and in-
stitutional users. Industrial users may be subcategorized since
some types of industry generate more treatment expense due to
the characteristics of their effluent. Such industries gen-
erating effluent requiring more costly treatment include primary
metals, chemicals, petro-chemical, paper and allied products,
and food and allied products.
If each "category of user" is to pay its "proportionate share"
of costs of operation and maintenance, the management agency
should have the legal ability to assess waste treatment charges
based on the volume, composition and delivery flow rate char-
acteristics of the effluent discharged into the system for
treatment. In many states, there is no specific statute author-
izing user charges based on characteristics of the discharge of
the user, since it is provided only that the waste treatment
agency may, or shall, charge for its services. In some in-
stances this is qualified by requiring that charges be rea-
sonable or is qualified in some other general way. If a waste
treatment agency is expressly authorized to charge for its
services, it is only reasonable that it can charge each cate-
gory of user for its proportionate share of treatment costs
unless prevented from doing so by a specific statutory pro-
vision.
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One example of a system of charges, or method of charging,
that is unrelated to costs of treatment is the assessment based
on front footage (or valuation) of the property served. While
this might be appropriate for payment of costs of construction
of collection systems, it cannot be deemed acceptable when a
user is required to pay its proportionate share of treatment
costs. Such method, alone, or in conjunction with a volume
only charge system, will not meet the requirements of the Act.
There are many technological as well as practical considerations
in determining whether a particular system of charges by a treat-
ment agency meets the requirements of assuring that each cate-
gory of user pays its "proportionate share" of treatment costs.
These considerations are not part of the reports.
It is noted in the reports whether there is specific statutory
authority for the waste treatment agency to make charges based
on volume, composition and delivery flow rate characteristics.
If there is no such specific statutory authority, it is noted
whether it can reasonably be implied from an express general
power to charge for services. If there is a specific statutory
authority providing for a method of charging inconsistent with
charging based on characteristics of effluent, this is noted.
2.3.2 Full Recovery Will Be Had From the Industrial Users
°f the Waste Treatment Works of the Federal Portion
of the 'Construction Costs of Treatment Works Rea-
sonably Attributable to Treatment of Such Industrial
Wastes. [§204 (b) (1) (B) ].
Not only must the cost of treatment of industrial discharges
be recovered from industrial users, but the federally funded
share of capital costs of construction attributable to treating
such industry's wastes must also be recovered from such indus-
trial users (industrial cost recovery). Thus, the authority
to assess waste treatment charges (or raise revenues) must in-
clude authority to satisfy this requirement. As in the case of
treatment costs, this provision prevents the subsidizing pf
industrial users. While there are some benefits to industrial
users (i.e., economies of scale, interest-free funds, etc.) these
will be generally available to all industries without competi-
tive advantages among industries.
Regulations (18 CFR 601.34, June 1970) and Guidelines under
the earlier federal laws provided for an equitable system of
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cost recovery including capital costs. In order to ascertain
what portion of capital costs were attributable to treating
industrail wastes, several formulas were recommended. These
formulas included allocation by volume, by volume and loading,
and by quantity or quality based on total cost or average unit
costs. Recovery was to be through charges, connection fees
or other techniques permitted by state or local law.
The laws in many states either permit or require treatment
agencies to recover their capital costs (i.e., non-grant por-
tions). This is particularly true in the case of revenue type
funding in which systems of charges must be devised to service
the debt (pay principal and interest) over the lifetime of the
project. This presents a problem in some states in which there
is specific authority to recover capital costs funded by revenue
bonds, but no provision to recover capital costs funded from
other sources.
§204 (b) (3) provides that a grant by the EPA to the treatment
agency creates an obligation on the part of the treatment agency
to earmark the funds for use by the treatment agency and/or
repayment to the federal government as required by the Act and
terms of the grant. If a treatment agency can compute its
charges so as to pay off its debts or meet its obligations, it
would appear that the treatment charges could, and should, in-
clude the amounts sufficient to satisfy the obligation and thus
satisfy this requirement of §204 (b) (1) (B) .
In reviewing a grant application, a question is presented as
to whether a treatment agency must have a legally enforceable
commitment from such industrial users to repay this portion
(industrial cost recovery). This problem is rather simple if
only one or two large industries are involved, but, if many
small industries are involved, the problem is more complex. As
an example, if the industrial cost recovery is included in the
rates for service charged industry, what happens if industry
stops discharging into the system? On the other hand, will an
industry commit itself to payment for services it may not need
if it discontinues business? There are a number of ways in
which these questions can be answered and the problems avoided.
For example, an assessment can be levied on the real estate of
the industry for its share of the costs. The assessment be-
comes a charge against the real estate with any owner thereof
subjected to paying the assessment. As another example, the
case of a few large industries, they may, jointly or severally,
agree to repayment. To make it more attractive for industry,
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this could be deemed as a right or license to discharge which
right could be assigned to another user. In the case of many
small industries, inclusion of industrial cost recovery in
the service charges to such category of users may suffice, since
the risk of non-repayment is spread over so many users as to
be negligible.
It is noted in the reports whether there are specific statutory
authorities providing this legal capacity to recover from in-
dustry, or, as noted in the case of user charges, whether this
is included within the general power or authority to charge for
waste treatment services or in the power to contract with in-
dustry to furnish services.
2.4 Authority to Incur Short- and Long-Term Indebtedness.
[§208(c) (2) (F)].
Basically this requirement involves the waste treatment manage-
ment agency's authority to borrow, or in some manner to defer
payment for, the capital costs of construction. The various
methods of incurring debt include the authority to issue (sell)
general obligation bond or bonds to be repaid from special funds
(i.e., revenues, assets of the management agency, etc.). Due
to provisions in §204(a)(4), this authority is necessary to
assure payment of the non-federally funded portion of the cost
of construction.
The states vary considerably on the interpretation of consti-
tutional or statutory debt limitations. In most instances,
sp< jial fund or revenue types of financing are not subject to
such debt limitations. In other instances, the debt limitations
may or may not apply to the obligations of special districts
such as sanitary districts.
In some states, there is express authority for interim or
short-term financing during the period of construction. In
other states , short-term financing is an integral part of
long-term financing. The ability to incur short-term indebted-
ness may be included within the scope of the ability to con-
tract since contracting generally results in the agency incur-
ring an indebtedness. Another type of short-term indebtedness
is the bond anticipation note. A similar device might be used
with repayment from grant proceeds instead of proceeds from
the sale of bonds.
The legal ability to incur short-term indebtedness is not a
problem in most states if the management agency has the ability
to contract or to incur long-term indebtedness. Emphasis in
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this part of the reports is, therefore, on the legal ability
to incur long-term indebtedness.
2.4.1 General Obligation Funding.
It is noted in the report whether the management agency has the
authority to issue general obligation bonds (i.e., bonds secured
by the general credit of the political subdivision or subdivi-
sions of which it is a part). In most instances a management
agency will not have such authority unless the management
agency is a political subdivision such as a county, city or
municipality, which has this general power in order to raise
revenues for many public purposes, not just waste treatment.
If the management agency is an entity other than a political
subdivision of general jurisdiction, the power to issue general
obligation bonds secured by the general credit of the political
subdivision is not usually possible.
If the management agency has such authority, any conditions
upon such issuance will be noted. Such conditions include
debt limitations and approval of the electorate. In states
in which these conditions exist, they should be met by the
time a grant application is considered by EPA. In other words,
there should be evidence that the debt limitation is not ex-
ceeded and/or the required voter approval has been obtained.
2.4.2 Special Funds and Revenue Funding.
A prevalent method of financing is the issuance of revenue
bonds to be repaid from, and secured by a pledge of, the revenue
from operation of the waste treatment works. In many instances,
debt limitations and similar constraints do not apply. The
reports note the management agency's authority to utilize this
type of financing and the constraints upon its use.
2.4.3 Other Methods of Financing.
Other types of financing include borrowing from a public cor-
poration which has issued bonds or has funds available from
the general revenues of the state. Long-term lease/purchase
agreements are also utilized in some jurisdictions. If there
is statutory authority enabling these methods to be used by
the management agency, it is noted in the reports.
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2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community Pay
Its Proportionate Share of Treatment Costs. [§208(c)(2)(G)]
It appears that the purpose, among others, of this provision
of the Act is to discourage the use of federal funds to con-
struct a treatment works in one community which will then op-
erate it so as to subsidize the users within such community
at the expense of other communities being served by the same
treatment works. It is a further implementation of the avowed
purpose of the Act that each user pay the cost for treatment
of its effluent.
This provision is not construed merely to apply to the partici-
pating community as a user -- i.e., discharging effluents gen-
erated by publicly owned facilities such as municipal building,
incinerators, etc. It is construed to apply to the partici-
pating community as a whole including all users in the community.
For purposes of determining whether a waste treatment management
agency has the authority to assure that each participating com-
munity pay its proportionate share of treatment costs, it is
assumed that a "participating community" is (i) a political
subdivision and not merely a neighborhood or unofficial area
within a political subdivision or (ii) a well-defined unin-
corporated area outside a political subdivision. If only
one community is being served by the waste treatment management
agency, this authority would not appear to be relevant.
When two or more communities are being served, several different
situations could exist. As an example, several communities
may voluntarily agree to join together to be served by the
treatment management agency pursuant to the areawide plan.
The agreement to join together could define the proportionate
share of treatment costs of each community and the categories
of users within the community. Interlocal cooperation acts
existing in some states facilitate such agreements. As another
example, a treatment management agency operated by one com-
munity may serve other communities pursuant to agreement be-
tween the serving community and each community being served.
Decisions are made at the time of the agreement between the
communities as to the sharing of costs of treatment. Such
decisions may be deemed political decisions in that factors
other than sharing treatment costs may be considered. As an
example, one community may not desire the treatment works lo-
cated within its confines and is willing, therefore, to pay
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more than its proportionate share of treatment costs to avoid
this. If a value is placed on not having the treatment works
located within the community, then the community should pay
for this and does so in the system of charges that is agreed
upon by the communities involved. In such instance, this
system of charges may not represent a division of treatment
costs among the communities based on the cost of treating the
discharge of each community, but if the apportionment is openly
and freely agreed upon by the participating communities, it
should be acceptable as providing that each will pay its pro-
portionate share as required by this section of the Act.
Very few states have legislation specifically granting to a
waste treatment management agency the authority to assure
that each participating community pay its proportionate share
of treatment costs. It is apparent that the states have as-
sumed that any agreement among communities for sharing treat-
ment costs will be equitable or the communities would not
have agreed to cooperate in treatment. Under the Act, it
would appear that the required areawide plan which mandates
cooperation among communities should provide for an equitable
method of allocation which would meet the "proportionate share"
requirement.
The authority to assure that each participating community
pay its proportionate share of treatment costs is closely linked
with the authority to charge users within the community for
their proportionate shares. Thus, as in the case of propor-
tionately charging different categories of users, the author-
ity generally of the waste treatment management agency to charge
for its services may include by implication the authority to
assure that each participating community pay its proportionate
share. Whether the community charges the users within the com-
munity and then remits to the treatment management agency, or
whether the treatment management agency charges the users
directly, it appears that the authority to charge different
categories of users for services should encompass the authority
to assure that each participating community pay its propor-
tionate share of treatment costs.
The reports indicate whether there is any specific statutory
provision granting authority to a waste treatment management
agency to assure that each participating community pays
its proportionate share of treatment costs. If there is no
such specific authority -- which is the situation in most
states other powers or duties of the treatment management
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agency from which such authority can reasonably be implied
will be noted.
2.6 Authority to Refuse to Receive Any Wastes From Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of An Approved Plan Under
§208(b) Applicable to Such Area. [§ 208 (c) (2) (H) ] .
This necessary authority poses somewhat unusual legal prob-
lems. If a treatment management agency is servicing a muni-
cipality by treating its wastes, can it "cut-off" the service
if the municipality does not comply with any provision of
an approved areawide plan? It is doubtful that such agency
could or would do this on a municipal-wide scale, since resi-
dential users and public users (schools, hospitals, etc.)
would be affected. A somewhat more restrained and reasonable
application of this authority to refuse to receive wastes is
(i) that it apply prospectively to deny new or additional
"hook-ups" with the system (the effect of which would be to
prevent further development and growth of a community or sub-
division) until compliance is had with the areawide plan and
(ii) that such authority include lesser sanctions such as
penalties, surcharges and similar charges. A third possi-
bility is the authority of the treatment agency to cut-off
particular users within the municipality if the municipality's
failure to comply is based on that particular user's or cate-
gory of user's discharge. The most common situation might in-
volve industrial users which the municipality permits to dis-
charge effluents into the system while in violation of the
areawide plan. This right or authority to cut-off such in-
dustrial users is treated in part 2.7 of the reports in situ-
ations in which the industrial discharge into the system is
in violation of pretreatment standards or similar regulations.
It should be noted that this authority to impose a sanction
on a municipality or subdivision thereof applies whenever
the municipality or subdivision fails to comply with any pro-
vision of an approved areawide plan. Thus the sanction may
be imposed even though the failure to comply with the area-
wide plan is for a reason not related to the operation of a
treatment works or treatment of point source effluents. As
an example, a municipality could be in violation of the pro-
visions of an areawide plan by failing to control construc-
tion related sources of water pollution. A literal inter-
pretation of this requirement is that, irrespective of the
nature of the failure to comply with the areawide plan, the
authority to impose the sanction is required.
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Inasmuch as the sanction is to be applied to a municipality
or a subdivision thereof, it is assumed that, in the situation
in which an entire community is in noncompliance the treat-
ment management agency and the noncomplying municipality are
not the same entities. This is assumed for the reason that a
municipality would not be in a position to cut-off itself or
otherwise penalize itself.
This part of the reports treats briefly the authority to "cut-
off" existing municipalities being served. Parts 2.6.1 and 2.6.2
treat more extensively the prospective application to deny ad-
ditional "hook-ups" and the use of other sanctions.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
~~ (Moratorium Effect) .
The authority to refuse to receive wastes from a municipality
can reasonably be interpreted to mean an authority to deny per-
mits for new or additional "hook-ups" if the municipality is,
or will be by virtue of such new or additional "hook-ups,"
not in compliance with the areawide plan. This, in effect,
is the authority to declare and enforce a moratorium on new
construction and development until the community complies with
the areawide plan. Not only developers, but others interested
in the growth of an area are vitally affected by exercise of
this authority.
It is noted in this part of the reports whether the treatment
management agencies either alone or in conjunction with regu-
latory agencies have such authority. In some instances, the
reports indicate the state level or other agency which would
have such authority within the area encompassed by the area-
wide plan.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply with the
Areawide Plan.
This authority differs from the authority to charge for treat-
ment, since the authority to charge relates to charging users
or categories of users while this authority to penalize applies
to municipalities. It is, therefore, relevant whether a treat-
ment agenay may assess penalties and surcharges against a
municipality and not merely users within the municipality.
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The reports note where this can be done by waste treatment
management agencies within the framework of existing statutes.
As in the case of the authority to deny new "hook-ups," the
reports are limited. It is noted in the reports when this
authority to impose sanctions is exercisable by the waste
treatment management agency alone, in conjunction with another
agency, or only by a state level agency.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I) ] .
In most states this required authority presents no problem
as it is either expressly authorized or reasonably implied
from express powers to treat wastes generally.
One problem which may arise in servicing industrial wastes is
whether such servicing is the unlawful use of public funds to
benefit a private industrial user. This appears to be no
problem if the treatment agency can, as it must in order to
qualify for a grant, charge such industrial user its propor-
tionate share of costs of treatment (discussed in part 2.3.1).
The reports, therefore, consider this problem only if there
is no authority to charge categories of users for their pro-
portionate share of costs of treatment.
If a treatment agency must have the authority to accept for
treatment industrial wastes, it is implicit that, it must also
have the authority (i) to set the criteria for acceptance of
such wastes in order to protect its treatment works and, (ii)
if such criteria are not met, to refuse to accept such indus-
trial wastes for treatment. § 208(b) (2) (C) requires that the
areawide waste treatment management plan establish a regula-
tory program to assure that any industrial wastes discharged
into a treatment works meet applicable pretreatment require-
ments. Pursuant to §307(b) of the Act, the Administrator must
publish regulations establishing pretreatment standards for
introduction of pollutants into publicly owned treatment works
which pollutants are determined not susceptible to treatment or
which would interfere with the operation of such treatment works
This section of the Act does not prevent establishment of pre-
treatment standards by state or local laws not in conflict with
the federal standards. Thus the treatment management agency
must have the right to refuse any discharge which violates
federal, state or local pretreatment standards or which would
damage or disrupt its treatment works and thus endanger water
quality.
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In situations in which the treatment management agency has
authority to contract with industry for treatment of its
wastes , the -contract terms can provide for pretreatment and
the right to refuse wastes which do not comply therewith.
The reports, as a result, include comments with respect to
the authority of a waste treatment agency to refuse to ac-
cept industrial wastes as well as such agencies' authority to
accept industrial wastes for treatment. In many instances
the authority to accept industrial wastes is implicit from
the general power to treat all sewage. In other instances,
state statutes specifically provide this authority.
Part 3
3. 0 SUMMARY
Following the preceding analysis, a brief summary is set forth
stating whether, under existing state law, waste treatment
management agencies can meet the requirements of the §208
(c)(2) and related sections in order to qualify for federal
grants for construction.
3.1 Deficiencies
Specific deficiencies and/or problems in complying with the
requirements of §208 (c) (2) are noted. Suggested legislation
to overcome the deficiencies or avoid the problems is in-
cluded in Appendix A.
Part 4
4.0 BIBLIOGRAPHY
Source materials and other articles, if relevant, are listed
in the bibliography. In some states, there are few, if
any, articles concerning their water quality control prob-
lems and/or waste treatment management.
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STATE REPORTS
-------
REGION I
-------
PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
CONNECTICUT REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Connecticut has centralized all state-level water planning,
enforcement and standard setting by assigning all these func-
tions to the Connecticut Environmental Protection Department.l
All sewage works construction first must be approved by the
department and the department may order a municipality to
build a works should it be regarded necessary.2
Sewer authorities3 may be created by "each municipal organiza-
tion having authority to levy and collect taxes" as well as
any community or region so empowered. "* These are the sole
authorities used for sewage treatment in Connecticut. They may
be combined into multiple sewer systems serving more than one
municipal area.5 Sewer districts, specifically designated areas
which may create a sewer authorities, have certain powers in
addition to those granted to sewer authorities. These will also
be noted.
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1.2 Schematic Diagram of Existing Agencies
Connecticut
Finance and
Control
Department of
Environmental
Protection
(Commissioner)
Office of State
Planning
Laboratory
Deputy Commissioner
Conservation and
Preservation
Deputy Commissioner
Environmental Quality
Planning and
Standards
Air Pollution
Compliance
Solid Waste
Management
Waste and Hazardous
Substances
Compliance
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c)(2)(C)].
Sewerage authorities are given the power to "acquire, construct
and operate" sewerage systems.6 This would fully satisfy this
provision.
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D) ] .
No statutory provision exists insofar as funding is concerned
outside of the Environmental Protection Departments Legislative
directive to
apply for and accept any funds or other aid and to
cooperate and enter into contracts and agreements
with the federal government . . . 7
This provision should not preclude local authorities from also
applying for grants, even though this method is not provided
by statute.
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208 (c) (2) (E)].
Sewer authorities may charge their customers for sewage treat-
ment by imposing waste treatment charges.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)].
Sewer authorities must charge "fair and reasonable" rates giving
consideration to the kind, quality and quantity of waste dis-
charges . 8
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2.3.2 Full Recovery Will Be Had from the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works
Reasonably Attributable to Treatment of Such In-
dustrial Wastes . [§204 (b) (1) (B) ].
Sewer authorities may "levy benefit assessments upon lands and
buildings in the municipality which . . . are especially bene-
fitted [by the authority]."9 The sum of these assessments is
not to exceed the extent of the special benefit incurred.10
This assessment power permits all authorities to recover an
industrial user's portion of a facility's construction costs.
2.4 Authority to Incur Short- and Long-Term Indebtedness.
[§208(c) (2) (F)] .
Sewer authorities are empowered to issue bonds.
2.4.1 General Obligation Funding.
General obligation bonds may be issued by all taxing authori-
ties, including sewer authorities, for sewer systems.11 This
power is limited to three and three-quarters times the total
sewerage system revenue for the previous fiscal year.12 Such
a limitation might make these bonds small in value. However,
since any portion of the bond issue which is guaranteed by
the state or federal government is exempt from this limitation,13
larger amounts of revenue could be raised if the bonds are
backed by state or federal funds.
2.4.2 Special Funds and Revenue Funding.
Revenue bonds, pledging the facility's revenues for repayment,
are also available for financing sewerage authorities.
2.4.3 Other Methods of Financing.
One further bond exists for sewer authorities. These bonds
are hybrids which are secured by both the full faith and credit
of the municipality as well as by the revenues coming from its
facilities.15 While no limitation is mentioned in the authorizing
statue it is presumed that the same restrictions as under
General Obligation Funding would apply since the bond pledges
the municipality's full faith and credit.
Authorities may also receive up to 30 percent financing from
the state under Connecticut's Clean Water Act.16
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2.5 Authority to Assure in Implementation of its Waste Treat-
ment Management Plan that Each Participating Community
Pay its Proportionate Share of Treatment Costs. [§208(c)(2)
(G)] .
Municipalities may contract with each other to form joint
sewer authorities.17 Since charges must be "fair and reasonable,"
it is assumed these authorities' contracts must be equitably
apportioned.
2.6 Authority to Refuse to Receive Any Waste From Any Muni-
cipality or Subdivision Thereof, Which Does Not Comply
With Any Provisions of An Approved Plan Under §202
Applicable to Such Area. [§ 208 (c) (2) (H) ] .
Any refusal to accept waste from a community should require
specific statutory authorization. No such authorization exists.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
While the denial of hook-ups is not specifically authorized
for either sewage system, sewer districts "may adopt ordinances
with penalties to secure their enforcement" to carry out their
purposes.18 This might be used to deny any proposed expansion
which runs counter to the regional plan. Moreover, all sewer
authorities might use the Environmental Protection Department's
power.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply With
the Areawide Plan.
Penalties, surcharges, and so forth will be available to areas
which create sewer districts.19 Other sewer authorities have
no such provision.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I) ] .
Sewer authorities may collect "sewage" which is "any substance,
liquid or solid, which may contaminate or pollute or affect
the cleanliness or purity of any water."20 Industrial wastes
may be either prohibited or regulated to prevent the dis-
charge of substances harmful to the systems processes.21
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3.0 SUMMARY
Connecticut generally fulfills the requirements of the Act.
Legislation is especially strong in bonding powers and in the
authorities' ability to charge construction costs to in-
dustrial users.
3.1 Deficiencies
1. Re: "Authority to Accept and Utilize Grants." Sewer
authorities should be expressly authorized to enter
into federal grant requests.
2. Re: "Authority to Assure That Each Participating Com-
munity Pay Its Proportionate Share." Statutory assurance
of equal treatment may be necessary although the fact
that charges must be fair and reasonable should be ade-
quate .
4.0 BIBLIOGRAPHY
1. Monograph, Dept. of Environ. Protection, Clean Water by
1974, June 9, 1971.
2. Comment, Water Pollution: Observations on Connecticut's
Response, 3 Conn. L. Rev. 206(1970).
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
Conn .
(Supp.
Conn .
Conn .
Conn .
See , e
Conn .
Conn .
Conn .
Conn .
Id.
Conn .
Conn .
Conn .
Conn .
Id .
Conn .
Conn .
Gen .
1972
Gen.
Gen .
Gen .
.g. ,
Gen.
Gen.
Gen.
Gen .
Gen .
Gen.
Gen .
Gen .
Gen.
Gen.
Stat.
) .
Stat.
Stat.
Stat.
Conn .
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Ann .
Ann .
Ann .
Ann .
Gen .
Ann .
Ann .
Ann.
Ann .
Ann .
Ann .
Ann .
Ann .
Ann .
Ann.
FOOTNOTES
§25-54c(d) ,
§§25-54c(g) ,
§7-245 et se
§7-245 (1972T
Stat. Ann. §
§7-247 (1972)
§25-54y (Supp
§7-255 (1972")
§7-249 (1972)
§7-259 (1972)
§7-374(b) (19
§7-265 (1972)
§7-259 (1972)
§25-54 (Supp.
§§7-272, -27
-54e, -54g, -54h
c(h) , c(i) , (Supp. 1972)
q. (1972) .
f
§7-330 to -334 (1972) .
w
. 1972).
ğ
B
.
72).
.
.
1972) .
3 (1972) .
- 32 -
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18. Conn. Gen. Stat. Ann. §2-528(1972).
19. See Paragraph 2.6.1, "Authority to Deny New or Additional
'Hook-Ups1" supra.
20. Conn. Gen. Stat. Ann. §7-245(1972).
21. Conn. Gen. Stat. Ann. §7-247(1972).
- 33 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
MAINF REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Maine has a fairly sophisticated state and local wastewater
control system. Aside from a possible need for some further
statutory development, the state is quite well organized for
controlling and improving water quality.
Maine's water pollution control agency was formed in 1967; and,
with a few minor changes in powers, the agency was recently
renamed the Board of Environmental Protection.1 This board,
operating within the Department of Environmental Protection,
must approve any proposed construction of wastewater facilities
and advises the various authorities on methods of wastewater
control which should be employed.2 Enforcement of state and
federal water standards and statewide pollution planning
functions are handled by the board. Moreover, the board
recommends water pollution standards for the legislature's
evaluation and approval. 3 r'
Currently, two sewage authorities may be publiclyoperated in
Maine. Municipal sewer systems are statutorily authorized
under the Revenue Producing Municipal Facilities Act.4 Sani-
tary districts, the second type of authority, are formed
after board approval of the district is accepted by a majority
of the residents in the proposed district.5
- 35 -
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1.2 Schematic Diagram of Existing Agencies
Governor
Department of Environmental Protection
Board of Environmental Protection
Technical Services
Administration
Water Quality Control
Enforcement
Industrial Services
Licensing
Municipal Services
Oil Pollution Control
Water Quality Services
- 36 -
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208 (c) (2) AND
SELECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and
Construct New Works and to Operate and Maintain New and
Existing Works as Required by Any Areawide Plan. [§208(c)
(2) (C) ]'.
Municipalities may operate, build and manage a sewer system
which may operate within and without their corporate limits.6
Sanitary districts are granted the same authority.7
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D) ].
Municipal sewer systems and sanitary districts may apply for
and receive federal grants.8
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208(c) (2) (E) ] .
Both municipal sewer systems and sanitary districts may impose
rates and charges on users.9 Also, fifty percent of the costs
of common sewers in sanitary districts may be recovered by
assessing those users affected.10
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)] .
Municipal sewer systems are set up so that each category will
pay its appropriate share since the rates may be based on
the character of the premises or other factors affecting the
use of the system.11 Furthermore, the municipal officer
may choose either to impose a surcharge upon those users whose
waste places an unreasonable burden on the treatment system or
else they may require pretreatment.l2 Sanitary districts also
may insure that each category pays its appropriate share.
[rjates, to tolls, rents and entrance charges shall be
uniform within such district...; but nothing shall
preclude the district... from establishing a higher
rate, toll, rent or entrance charge than the regular...
[fees]...in sections where...the cost of service
exceeds the average, but [these fees] , shall be uni-
form. . . . 1 3
- 37 -
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2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [ § 204 (b) (1) (B)] .
No specific provisions exist on this matter.
2.4 Authority to Incur Short- and Long-term Indebtedness
[§208(c)'(2) (F) ] .
Both sanitary districts and municipalities with sewer systems
may incur bonded indebtedness.
2.4.1 General Obligation Funding.
No specific provision exists on this matter. It is therefore
assumed that general obligation bonds are unavailable for
financing.
2.4.2 Special Funds and Revenue Funding.
Revenue bonds may be issued by both sanitary districts and
sewer systems. Sanitary districts may issue bonds whenever
the board of trustees establish approval by resolution and
secure the permission of the issue from the Public Utilities
Commission. 4 Municipal sewer system bonds are issued under
different procedures. Cities' revenue bonds are issued
when they have been approved by council resolution.15 Towns,
however, must secure the approval of the majority of at least
twenty percent of the total number of voters who voted for the
governor in the last election before they may issue their
bonds.16
2.4.3 Other Methods of Financing.
The State will advance up to 30 percent of the expense for
any pollution abatement construction program which has
received federal approval.17
2.5 Authority to Assure in Implementation of Its Waste
Treatment Management Plan That Each Participating Com-
munity Pay Its Proportionate Share of Tre itment Costs
[§208(c) (2) (G) ] .
Sewer systems have no specific provision on this matter. It
is most likely that they would still be reauired to impose
proportionate charges since intra-community charges may be
based on the character of the effluent, as well as being
reasonable, just and eauitable. Sanitary districts, however,
expressly provide for equal treatment.18
-------
2.6 Authority to Refuse to Receive Any Wastes from Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [ § 208 (c) (2) (H)].
No specific provision exists on this matter. Due to the
severity of this sanction legislation should be required.
2.6.1 Authority to Deny New or Additional "Hook-ups"
(Moratorium Effect).
Since a moratorium power does not exist statutorily it could
be employed by using regulations refusing to service an area
which does not comply with- the plan. These regulations would
be necessitated for facilities which would be unable to accept
a given area's wastes without incurring non-complying dis-
charges in violation of areawide standards.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply with the
Areawide Plan.
No other sanctions exist.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
Industrial wastes may be accepted for treatment by both sani-
tary districts and sewer systems.19 If wastes should impair
the sewage system, the agencies are authorized to require
pretreatment.20
3.0 SUMMARY
The Maine statutes provide one of the better systems of
wastewater treatment in the United States. Regional problems
may be handled by Board of Environmental Protection approved
sanitary districts. While these probably should be established
by the board's directive alone, the drawback of requiring
local approval does not affect the state's ability to receive
grants. Both local and regional sewage treatment are handled
by municipal sewer systems. Both of these systems come quite
close to meeting all of the Act's requirements.
3.1 Deficiencies
1. Re 2.3.2: Provision could be made for recovering industry's
portion of the treatment works' construction costs.
- 39 -
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2. Re 2.6, 2.6.1, 2.6.2: Presently no provisions exist
for imposing sanctions on those municipalities served by
sanitary districts. These should be provided in order
to assure compliance with the present act.
4.0 BIBLIOGRAPHY
1. Delogu, Orlando E. A State Approach to Effluent Charge.
23 Maine L. Rev. 281 (1973).
§361 (Supp. 1972).
(Supp. 1972) .
(5)(Supp. 1972).
(Supp. 1972) .
(Supp. 1972) .
(Supp. 1972); tit. 38,
(1) , (2) (Supp. 1972) ; tit.
(Supp. 1972).
(2)(Supp. 1972).
(Supp. 1972) .
(Supp. 1972).
(Supp. 1972).
(Supp. 1972) .
(2) (Supp. 1972) ; tit. 38,
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
Me.
Id.
Id.
Me .
Me.
Me.
Me .
Me.
§120
Me.
38,
Me.
Me.
Id.
Me .
Me.
Me.
Id.
Me.
See
Me.
§115
Id.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Stat
Stat
Stat
Stat
Stat
Stat
1 (Supp.
Rev.
§120,
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
quote
Rev.
Stat
. Ann .
. tit.
. tit.
. tit.
. tit.
. tit.
1972) .
. tit.
2 (Supp. 19
Stat
Stat
Stat
Stat
Stat
Stat
in
Stat
1 (Supp.
. tit.
. tit.
. tit.
. tit.
. tit.
. tit.
2.3.1
. tit.
1972) .
FOOTNOTES
tit. 38,
30
38
30
38
30
30
, §
, §
1 3
, §
, §
, §
4251
1062
4251
1063
4251
4253
72) .
38
38
38
38
30
38
l 3
, §
1 §
1 §
f §
, §
1203
4253
1202
1201
4252
411
supra .
30
, §
4253
- 40 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
MASSACHUSETTS REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies.
Massachusetts' top state agency for water resources is the
Department of Natural Resources. While the Division of Water
Pollution Control is part of this department, it is actually
under the control of the Water Resources Commission.1 The Com-
mission, composed of representatives from seven departments and
four public interest groups,2 is presumably designed to provide
maximum public and administrative input for the division's
standard-setting, planning and enforcement duties.3
Waste water management is handled by three forms of agencies.4
Sewage disposal systems are available to any city or town which
falls outside of Boston's natural drainage area. Those which
fall within that area are specifically included in the indepen-
dent metropolitan sewerage district.6 Regional and local waste
water management and planning may also be handled by water pollu-
tion abatement districts.7 Local bodies may be pressured into
forming these agencies by preconditioning the8 receipt of state
aid on their establishment. They are established upon the
recommendation of the Division of Water Pollution Control and
the approval of both the selectmen (city council, etc.) and the
area's voters.9
1.2 Schematic Diagram of Existing Agencies.
Department of Natural Resources
Water Resources Commission
I
Division of Water Pollution Control
I Division of Water Resources
- 41 -
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208 (c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c) (2) (C) ] .
All agencies may design, construct, operate and maintain sewage
works.1°
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
All agencies may apply for and receive financial assistance
from the state11 and from the federal government.12
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [§208(c) (2) (E)] .
Sewage disposal systems are authorized to assess "just and equit-
able" annual charges.13 They may also charge users a "reasonable
amount" for obtaining a permanent privilege to use the facilities11*
or, they may charge those who pay no annual assessments a "reason-
able amount" for the use of the facilities.15 The town may also
bear a percentage of the cost of the facilities should the board
of aldermen so desire.16
No provision exists for charging individual users within the
metropolitan sewerage district for the use of the district's
facilities. Likewise, no such provision exists for water pol-
lution abatement districts.
2.3.1 Each Category of User Will Pay Its Proportionate Share
of the Costs of Operation and Maintenance (Including
Replacement) of Any Waste Treatment Services Provided
by the Agency [ §204 (b) (1) (A)].
Since sewage disposal systems' assessments for annual or other
charges must be equitable or reasonable presumably no such party
could be overcharged or undercharged. Such assurance is not
possible in metropolitan sewerage districts nor in water pollu-
tion abatement districts since there is no provision for charges
made in either act. However, there is no reason why this obli-
gation could not be provided by contract.
- 42 -
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2.3.2 Full Recovery Will be Had From the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works Reason-
ably Attributable to Treatment of Such Industrial
Wastes. [§204(b) (1) (B) ] .
No provision is available to carry out this mandate for any of
the existing systems. Again, this could be arranged by contract.
Moreover, the existence of industrial development facilities
provisions in the state virtually assures that no problems would
be encountered in collection under this method. (See comments
in footnote 4 .)
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)] .
All systems may finance their facilities by using some bonding
method. Since both sewage disposal systems and member towns
of the metropolitan sewerage district are always handled at the
town level, their financing is covered under city and town financ-
ing laws. They are, therefore, discussed below as cities or towns,
2.4.1 General Obligation Funding.
Short-term funding may be used by any city or town for one year
as long as such indebtedness is approved by majority vote and
does not exceed the aggregate tax level of the previous year.17
Long-term, 30-year general obligation bonds may be issued to
construct or maintain sewerage works if two percent of the
available revenues are pledged to the proposed project.18 Should
the town's emergency finance board approve of the bond, no debt
limit is imposed upon the town for the bond issue. If the proj-
ect does not receive this approval, a city's indebtedness is
limited to 2.5 percent of the assessed value of its taxable prop-
erty averaged over the three previous years or five percent of
a town's assessed value.19
Water pollution abatement district members may issue 30-year
general obligation bonds for their portion of the facilities'
construction costs; these are not subject to any debt limita-
tions.2 °
2.4.2 Special Funds and Revenue Funding.
No statutory authorization exists for issuing bonds based upon
the facilities' revenues.
- 43- -
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2.4.3 Other Methods of Financing.
The State of Massachusetts will pay an amount which assures that
the local unit does not pay over 40 percent of its construction
costs. 2l
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community Pay
Its Proportionate Share of Treatment Costs. [§208 (c) (2) (G) ].
Since sewage disposal systems must impose equitable charges
presumably such a system could not impose higher fees on a
sister community. The metropolitan sewerage district must
share construction and maintenance costs among the partici-
pating members.22 One provision specifically requires that
all charges to member communities must be equal. 3 Charges
imposed by water pollution abatement districts must be rea-
sonable and equitable.21*
2.6 Authority to Refuse to Receive Any Wastes From Any Muni-
cipality or Subdivision Thereof, Which Does Not Comply
With Any Provisions of an Approved Plan Under §202
Applicable to Such Area. [§208 (c) (2) (H) ].
Absent statutory authorization sewage treatment works should
not be able to refuse a municipality's waste due to the extreme
health hazards.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
Such authority exists in the Division of Water Pollution Control25
and could, presumably, be delegated to the local agency involved.
There is no provision which would prevent such refusal.
Thus, a pollution treatment facility could be required to re-
fuse wastes by having the division of water pollution control
order facilities to
operate such facility in such a manner as in
[the division's] opinion necessary to insure
adequate treatment prior to discharge to the
waters . . ,26
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply with the
Areawide Plan.
Towns operating sewage disposal systems may impose fines of up
- 44 -
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to 20 dollars against anyone who discharges non-conforming
wastes into their system.27 Whether each paying customer could
be so fined daily is in question. Certainly this is an inade-
quate ^ fine against an entire subdivision or town. Presumably
any division of water pollution control fine assessed upon the
system could be passed on to the offending member. There
appears to be no other statutory authority which enables an
agency to impose fines or other sanctions on non-complying com-
munities .
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
Both sewage disposal systems and water pollution abatement dis-
tricts may receive industrial wastes.29 While no provision ex-
pressly states this, the metropolitan sewerage district must be
able to accept industrial wastes since it may absorb systems
from operating towns outside the district.30
Refusal to accept industrial wastes must again, be treated as a
right stemming from the Division of Water Pollution Control as
analyzed in 2.6 supra. It can also be reasonably implied
from the fact that the treatment management agency must protect
its treatment works.
3.0 SUMMARY
No particular shortcomings exist for Massachusetts' sewage
disposal systems as long as the various presumptions prove to
be accurate. The most troublesome deficiencies are mentioned
below.
3.1 Deficiencies
1. Re; 2.3, 2.3.1, 2.5, Both the metropolitan sewage district
and water pollution abatement districts should be provided
with user charges provisions which would include assurances
of equitable apportionment among users.
2. Re: 2.6.2, More meaningful sanctions for all agencies
would prove beneficial.
4.0 BIBLIOGRAPHY
Chermak, L., The Law of Revenue Bonds, (1954).
Hatch,"Massachusetts and Michigan: Two States With an Answer "
6 Lincoln L. Rev. 119 (1972). '
- 45 -
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FOOTNOTES
1. Mass. Code Ann. ch. 21, §26 (1973).
2. Mass. Code Ann. ch. 21, §8 (1973). The Commission con-
sists of the commissioners of agriculture, commerce and
development, natural resources, public health, and public
works, the metropolitan district commissioner and the
director of the division of fisheries and game.
3. Mass. Code Ann. ch. 21, §27 (1973). The division is
further empowered to order towns to construct more ade-
quate sewage treatment facilities whenever they are needed.
Mass. Code Ann. ch. 21, §§44-46 (1973). See also
Director V. Oxbridge, 4 ERC 1030 (1972).
4. A fourth type of sewerage disposal system is specially
provided for through the use of industrial development
facilities. These facilities are industrial complexes
which may be created by towns at their own expense.
Funds expended are to be paid back through rental income
from those industries using the facilities. See Mass.
Code Ann. ch. 40D, §5 et seq. (1973). This act now
provides for financing waste disposal systems for these
complexes. Since these systems are "subject to applicable
laws," it is presumed that they fall under those laws
(other than financing) which are provided for the city
and town systems discussed infra.
5. Mass Code Ann. ch. 83, §1 et seq. (1971).
6. The metropolitan sewerage district is further divided into
southern and northern regions. See, e.g., Mass Code Ann.
ch. 92, §60 (1967). The towns which fall within the dis-
trict are Arlington, Belmont, Boston, Braintree, Brookline,
Cambridges, Canton, Chelsea, Dedham, Everett, Framingham,
the north sewer district of Hingham, Lexington, Molden,
Medford, Melrose, Milton, Natick, Needham, Stoughton,
Newton, Norwood, Quincy, Randolph, Reading, Revere,
Somerville, Stoveham, Wakefield, Valpole, Waltham, Watertown
Wellesley, Westwood, Weymouth, Wilmington, Winchester,
Winthrop and Woodburn. Mass. Code Ann. ch. 92, §1 (1967) .
Mass. Code Ann. ch. 92, §2 (1967), makes it mandatory for
these towns to join the system.
7. Mass. Code Ann. ch. 21, §28 (1973).
8. See Mass. Code Ann. ch. 21, §30A (1973).
9. Mass. Code Ann. ch. 21, §28 (b) (1973).
10. Mass. Code Ann. ch. 21, §30 (1973); ch. 83, §1 (1971);
ch. 92, §1 (1967).
11. Mass. Code Ann. ch. 21, §§27, 30A (1973).
- 46 -
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12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
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Mass .
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by Mass
(1971)
- 47 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
NEW HAMPSHIRE REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies.
All state-wide matters relating to water pollution have been
delegated to the New Hampshire Water Supply and Pollution
Control Commission.* This Commission exercises standard set-
ting powers and also carries out enforcement requirements.2
The Commission also acts as a state planner and may require
(if the circumstances indicate its necessity) construction of
a sewage disposal facility.3
Present statutory coverage of waste water management is excep-
tionally limited. Municipalities (a term including counties,
cities, towns, villages and districts) may create sewage sys-
tems known as disposal sewage facilities. The governing body
may order elections to establish a sewer commission.5 Regional
treatment plants may be ordered established by the state water
supply and pollution control commission whenever it feels that
such an approach will be beneficial to the area involved; there
is, however, only one statute which deals with these regional
facilities.6
In 1972 New Hampshire's legislature created a state-operated
(through the Water Supply and Pollution Control Commission)
river basin sewage system.7 This legislation is unique; it
provides that all existing sewage and waste disposal facilities
in the Winnipesaukee River Basin are to be turned over to the
state commission which is to plan, acquire, construct and
operate these facilities for the benefit of those communities
in the basin.
- 49 -
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Water Supply and Pollution
Control Commission
Executive Director
Ul
o
Deputy Director
Chief Engineer
Water Supply
Conservation
Director of Municipal Services
en
o
CD
0)
rt
O
H-
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0)
3
O
l-h
W
X
H-
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rt
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Design Standards
Industrial Waste
Biology
O
H-
CD
cn
-------
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or By Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c) (2) (C) ] .
Municipalities may "construct and maintain sewage treatment
plants and all main drains of common sewers."8 The Winnipesaukee
River Basin Control has similar legislation.9
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)].
Both the Commission and all municipalities may receive and
utilize grants or funds from any source.10
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208 (c) (2) (E) ] .
Municipalities may impose equitable sewer rentals for all sewage
treatment expenses.11 Industrial users must be charged by some
other method.12 Expenses for maintaining and constructing the
sewage treatment works also may be collected by imposing assess-
ments on those benefited.13
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency- [§204 (b) (1) (A)].
The rents charged must be determined on an ''equitable basis."
This would necessarily involve payment by each category of
user of their appropriate share.1
2.3.2 Full Recovery Will Be Had From the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [§ 204 (b) (1) (B) ] .
Since assessments for the construction of sewage treatment
works may be collected from anyone benefited,1* industrial
users may be compelled to pay for their portion of construction
costs.
- 51 -
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2.4 Authority to Incur Short- and Long-Term Indebtedness.
[§203(c)(2)(F)].
Sewage systems may be financed for terms of up to 30 years.16
Short-term indebtedness may be incurred in anticipation of
federal or state aid.17
2.4.1 General Obligation Funding.
A city or town's full faith and credit may be pledged for
sewer works. Under normal circumstances, general debt limi-
tation of 1.75 percent of a town's or city's tax valuation
exists for almost all debts.18 Villages are limited to one
percent.l9
Sewage facility financing may escape the city or town debt
limitations, however, under two conditions. First, the muni-
cipal corporation's activity is exempt from the debt limits
whenever construction of these facilities has been ordered
by the water supply and pollution control commission.20 Secondly,
should the project be certified by the governor land council
as necessary, the municipal corporation again may escape the
debt restrictions.21
Bonds issued by the municipalities vary in their methods of ap-
proval. City bonds must be approved by a resolution of two-
thirds of all the members of each branch of the city councils.22
Other municipal corporations must have approval of two-thirds
of all voters present at an annual or special meeting.23 Should
a special meeting be called however, a majority of all legal
voters must be present at that meeting and proper notice must
be given.21* These bonds are secured by the municipality's tax
powers. They may also be guaranteed by the state's full faith
and credit upon the governor's approval.25
2.4.2 Special Funds and Revenue Funding.
No revenue bonds are provided for either statutorily or
under the constitution.
2.4.3 Other Methods of Financing.
No additional forms of financing exist, although the state
shall contribute annually to municipalities up to 30 percent
of the yearly amortization charges on the original costs of
the facilities.26
- 52 -
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2.5 Authority to Assure in Implementation of Its Waste
Treatment Management Plan That Each Participating
Community Pay Its Proportionate Share of Treatment
Costs. [§208(c) (2) (G) ] .
With respect to municipalities, no specific provision exists
on this matter. However, since each consumer must pay a
charge based upon some equitable consideration, the statute
may be applied to communities by analogy -
In the case of the Winnipesaukee River Basin Commission, there
is a specific provision for assessment of municipalities
served, which assessment is based on cost of treatment.27
2.6 Authority to Refuse to Receive Any Wastes from Any
Municipality or Subdivision Thereof, Which Does Not
Comply With Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [ § 208 (c) (2) (H)].
No specific provision exists on this matter. Due to the
severity of this sanction, legislation would be required if
it is to be implemented.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
While the power to prevent actual construction is not provided
any treatment agency by statute, any such agency should be
able to refuse any waste treatment which would constitute an
over burden on its treatment facility. On the other hand, the
Commission through its discharge permit powers, may ef-
fectively enforce such a moratorium.28
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply with the
Areawide Plan.
No other sanctions are provided.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I) ] .
Industrial wastes may be accepted for treatment29 and pretreat-
ment may be required as a condition to issuance of a permit
by the Commission.30
- 53 -
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3. 0 SUMMARY
Except for a few minor areas, existing New Hampshire statutes
are adequate for the purposes of the Act. While no statutes
exist for the formulation of certain policies, it is reasonable
that these provisions may be implied from broad statutes. However,
it would be helpful to correct the deficiencies noted below.
3.1 Deficiencies
1. Re: 2.6.1 and 2.6.2. No sanction is presently available
against communities having their wastes processed by
another's plant, although it might be indirectly provided
by the Commission through its permit and financial aid powers.
2. Re: 2.7 Clarification for requiring pretreatment of in-
dustrial wastes would be helpful, since the present law
appears to apply to industry as a direct discharger into
state waters as compared with discharging into a sewage
treatment facility.
4.0 BIBLIOGRAPHY
None .
FOOTNOTES
1. N.H. Rev. Stat. Ann. ch. 149, § 1 et seq.(Supp. 1972).
2. N.H. Rev. Stat. Ann. ch. 149, §§4V(19T4"), 4lX(Supp. 1972).
3. N.H. Rev. Stat. Ann. ch. 148, §23-a(Supp. 1972).
4. N.H. Rev. Stat. Ann. ch. 252 ,§ 1 et seq. (1964) ; ch. 149-B, §1
(Supp. 1972) .
5. N.H. Rev. Stat. Ann. ch. 252 ,§ 19(1964) .
6. N.H. Rev. Stat. Ann. ch. 149-B, §l-a(Supp. 1972).
7. N.H. Rev. Stat. Ann. ch. 149-G, § 1 et sag.(Supp. 1972).
8. N.H. Rev. Stat. Ann. ch. 252, § 4 (1964).
9. N.H. Rev. Stat. Ann. ch. 149G, § 1(Supp. 1972).
10. N.H. Rev. Stat. Ann. ch. 33, § 7-b(1970) ; ch. 149 ,§ 4 VI
(Supp. 1972) .
11. N.H. Rev. Stat. Ann. ch. 252 ,§ 10(Supp. 1972).
12. Id. Presumably such charges would be made according to
the specific burden which is placed upon the sewer sys-
tem by the particular effluent.
13. N.H. Rev. Stat. Ann. ch. 252, § 9 (1964) .
14. N.H. Rev. Stat. Ann. ch. 252 ,§ 10(Supp. 1972).
15. N.H. Rev. Stat. Ann. ch. 252, § 9 (1964) .
- 54 -
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16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
N.H.
N.H.
seq .
N.H.
N.H.
N.H.
N.H.
N.H.
N.H.
Id.
N.H.
N.H.
N.H.
N.H.
N.H.
Rev.
N.H.
Rev.
Rev-
(1969
Rev-
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Stat
Rev.
Stat.
Stat.
) .
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
. Ann .
Stat.
Ann .
Ann.
Ann .
Ann .
Ann.
Ann.
Ann.
Ann .
Ann .
Ann .
Ann .
Ann .
Ann.
ch .
Ann .
ch .
ch.
ch.
ch.
ch.
ch .
ch.
ch.
ch .
ch.
ch.
ch.
ch.
252,
ch.
33, §2 (1970) .
33, §7-b(1970); ch . 376, §1 ejt
33, §§4-a(a) , - (c) (1970) .
33, §4-a(e) (1970) .
33, §5 (1970) .
33, §§5-b, -c(1970) .
33, §9 (1970) .
33, §8(1970) .
149, §5 (Supp. 1972) .
149-B, §l(Supp. 1972).
149-b, §6 (Supp. 1972).
149, §§8 III and V(Supp. 1972)
149E, §2V(Supp. 1972); cf. N.H.
§10(1964) "amended" 1971.
149, §8111 (Supp. 1972) .
- 55 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
RHODE ISLAND REPORT
(1372)
1.0 OVERVIEW
1.1 Description of Existing Agencies
In Rhode Island, the Department of Health is the state water
pollution control agency.l The Director of Health has the
responsibility of administrating the anti-pollution laws,
although much authority is delegated to the Assistant Direc-
tor for Environmental Health.2
The Department of Health, through the Director, is granted
express authority to develop comprehensive plans, set stan-
dards of water quality, adopt regulations, enforce its rules
and regulations, and accept and administer grants and loans
from any sources.3 In addition, the Director controls the
approval orders which are required for discharging sewage, for
construction of disposal and treatment works, and for construc-
tion of industrial and commercial establishments which may
result in the discharge of sewage.1*
It is unlawful in Rhode Island for any person, firm, or pri-
vate or public corporation to cause pollution of any waters,
or to cause sewage to be placed in a location likely to cause
pollution, or to place in any waters any solid wastes, junk,
or debris of any kind.5
When the Director has cause to believe that any person is vio-
lating any regulations or orders of the Department he may inves-
tigate the matter.6 The alleged violator is entitled to a
hearing before a final order is issued.7 If the Director finds
that a violation did occur, he may issue an order directing
the person to adopt some practicable and reasonably available
system to prevent such pollution.8
The penalty for violating such a final order is a fine of up
to $500, imprisonment up to thirty days, or both.9 Prosecutions
can be instituted by the Director or the Attorney General.10
The functions of actual operation and construction of waste
treatment facilities are performed at the local level. Cities
and towns are the primary units which operate waste disposal
works,11 although they lack specific statutory authority for
this. (See discussion in paragraph 2.1 at footnote 18.) In
addition, a special district, the Blackstone Valley Sewer
- 57 -
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District, is authorized to oversee the sewage and waste dis-
posal matters for an area encompassing five cities and towns.12
It should be noted that local functions may vary greatly in
Rhode Island because the state has a home rule provision in
its constitution which allows municipalities to govern them-
selves. l 3 No state statute proscribes exactly how local sewage
and waste disposal in cities shall be accomplished.
1.2 Schematic Diagram of Existing Agencies
Director of Health
Assistant Director for Environmental Health
Division of Water Supply and Pollution Control
Industrial Wastes
and Stream Study
Section
Municipal
Wastes
Section
Individual
Sewage
Disposal Section
Water Supply,
Swimming Pool
and Laboratory
Section
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208 (c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c)(2)(C)].
The Blackstone Valley District is expressly authorized to operate
and construct sewage treatment plants and other facilities which
may be required to combat water pollution.:^
- 58 -
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Statutory authority is also present to compel persons or
municipalities to connect to the district system.15
No express statutory authority exists for local agencies
such as cities, towns and counties to operate or construct
sewage or wastewater treatment facilities. The state sta-
tutes mention the operation of such facilities several times,
but never expressly delegate the power to operate them. For
example, cities and towns have express authority to charge
users of their sewer systems a reasonable amount. This power
is granted "in addition to such powers, privleges, preroga-
tives and authority as are now granted to each city and town
in connection with the sewers or sewer systems thereof."16
However, no additional powers are listed in the state statutes.
The only other mention of local sewer systems is in a section
of the title concerning the Department of Health's power to
grant funds to "any municipality, inter-municipal agency,
municipal sewer district, or state district or agency for the
construction of necessary facilities to prevent the discharge
of untreated or inadequately treated sewage into the waters
of the state."l7
Other sources of authority for towns and cities to operate
and construct sewer systems are the powers of town councils
and city councils to make all ordinances and regulations
necessary for the well-ordered management of their respec-
tive governmental units, as well as the authority for towns
and cities to exercise all powers and privleges conferred
on them by their charters or acts of the general assembly.18
The necessary powers can reasonably be implied from the pre-
ceding sections. Two other possibilities exist also. A pair
of statutes authorizes cities and towns to provide for safe
and sanitary disposal of all refuse,19 and for disposal of
wastes.20 These provisions seem to be designed to cover solid
wastes, however, since they mention hauling refuse and disposing
of wastes by incineration. l
2.2 Authority to Accept and Utilize Grants, or Other Funds
From any Source, for Waste Treatment Management Purposes.
[§208(c)(2)(D)].
The Blackstone Valley Sewer District has the express pov/er to
accept and use any federal funds or federal assistance for pro-
jects.22 Such projects must be carried out according to the
federal rules and regulations made pursuant thereto.23
- 59 -
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Express authority also exists for the Department of Health
to accept loans and grants from the federal government or
other sources.21*
Cities and towns do not have any express authority in this
area.
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208(c) (2) (E)] .
All agencies which operate wastewater treatment facilities
have the power to assess treatment charges.25
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204 (b) (1) (A)] .
Although there is no express power to charge proportionate
rates based on the characteristics of the effluent, this
power is not prohibited and may be implied from the power
of the Blackstone Valley Sewer District to charge each muni-
cipality or individual user "reasonable charges."25
Cities and towns also have the authority to assess charges in
such amount as bears a reasonable relation to the cost of the
service rendered to the users.27
2.3.2 Full Recovery Will Be Had From the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works Reason-
ably Attributable to Treatment of Such Industrial
Wastes. [§204 (b) (1) (B)] .
None of the agencies has the authority to recover the capital
construction costs from industrial users of the systems. The
Blackstone Valley Sewer District has the express power to con-
tract with the federal government, however, and such a contract
could reasonably include a provision to meet the requirements
of the acts.2 8
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208 (c)(2)(F)].
The Blackstone Valley Sewer District's power to incur short-
term indebtedness can be implied from its ability to contract
for construction of projects2 9 and to enter into agreements with
the federal government.30
- 60 -
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Cities and towns have express authority to incur long-term
indebtedness and thus could reasonably incur short-term debts
as well.31
2.4.1 General Obligation Funding.
No express authority is present for the Blackstone Valley
Sewer District to issue general obligation bonds. Cities and
towns, however, do generally have the power to borrow up to
3% of the value of the taxable property without any special
statutory permission.32 City charters are authorized to pro-
vide the procedure for issuance of bonds after such bonds are
approved by a general or special law.33 There is no statutory
limit on the amount of interest these bonds may bear.34
Cities and towns have express authority to issue bonds for
financing projects to control water pollution, provided that
the projects are approved by the Department of Health.35
2.4.2 Special Funds and Revenue Funding.
Neither cities nor the Blackstone Valley Sewer District has the
express authority to issue revenue bonds for construction of
wastewater treatment facilities.
2.4.3 Other Methods of Financing.
Cities and towns are authorized to borrow funds in anticipation
of taxes36 as well as issue bond anticipation notes.37
In addition, the Department of Health has the power to make
state grants to any district or agency for the construction
of wastewater treatment plants.38
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c) (2) (G)].
There is no express statutory authority for the Blackstone
Valley Sewer District to charge proportionate rates to the
various member communities. This power could be reasonably
implied, however, from the ability to assess each municipality
"reasonable" charges.39
Furthermore, cities and towns in Rhode Island can form inter-
local cooperation commissions for the joint operation of
- 61 -
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mutually advantageous projects.1*0 If wastewater treatment
facilities could be included as an eligible project for such
cooperation, the agreement between the various communities
could provide for proportionate rates and charges.
2.6 Authority to Refuse to Receive Any Wastes From Any Muni-
cipality or Subdivision thereof, Which Does Not Comply
With Any Provisions of an Approved Plan Under §202 Applic-
able to Such Area. [§208(c) (2) (H)] .
None of the local agencies has the authority to refuse to
receive wastes from persons or municipalities not in compli-
ance with an overall plan.
The Department of Health could order a municipality to dis-
continue the discharge of wastes into the system by means
of its control over the permits needed for operations.1*1
That is, such a permit could be revoked by the Department
of Health.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
Although the Blackstone Valley Sewer District does not have
express powers to deny new hook-ups, it does have the authority
to compel municipalities to connect to the system.42 The
power to deny new hook-ups might be implied from the authority
to compel such hook-ups.
Cities and towns lack any express powers to deny hook-ups.
The Department of Health could deny hook-ups by disallowing
additional permits.1*3
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
No express authority exists for any of the local agencies to
assess penalties, surcharges or other sanctions against vio-
lators .
The Department of Health can enforce its rules, regulations
and orders by a $500 fine, thirty days imprisonment, or both.1*1*
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c)(2)(I)].
The Blackstone Valley Sewer District has implied authority to
- 62 -
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accept industrial wastes since the term "sewage" is defined as
including chemicals, acid, dye-stuff, coloring matter, oil,
tar and any compound or product thereof." 5 The district has
express authority to require pretreatment of industrial wastes
prior to entry into the facilities of the project."6
Individual cities and towns do not have any express powers to
either accept industrial wastes or require pretreatment of
them.
3.0 SUMMARY
Local agencies in Rhode Island do not have express authority
to comply with many provisions of the Act necessary for future
areawide management. Much of the problem is due to the lack
of enumerated powers regarding sewage disposal and treatment
for cities and towns. Legislation granting municipalities
specific authority to operate and construct facilities as well
as utilize grants and revenue bonds for these purposes would
be helpful.
The Blackstone Valley Sewer District has statutory authority
to meet most of the requirements for areawide plans. A lack
of financing ability through bonds is the major deficiency
here.
Such functions as state-wide planning, standard setting and
permitting are delegated to the Department of Health, which
generally has authority over pollution control in the state.
3.1 Deficiencies
There is a lack of express statutory authority for cities and
towns or other local units to comply with all of the required
provisions except those for assessing charges and issuing gen-
eral obligation bonds. The Blackstone Valley Sewer District
meets many more of the requirements than cities and towns do,
but still lacks authority to issue bonds and to refuse wastes
fron non-complying communities. New legislation curing the
defects in the authority of the Blackstone Valley Sewer Dis-
trict and giving similar powers to municipalities would bring
Rhode Island into full compliance.
4.0 BIBLIOGRAPHY
None.
- 63 -
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FOOTNOTES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29 .
30.
31.
32.
33.
34.
35.
36.
37.
38.
39-
40-
41.
42.
R.I. Gen. Laws Ann.
Id.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
Id.
R.I. Gen. Laws Ann.
Id.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
See R.I. Gen. Laws
R.I. Gen. Laws Ann.
Constitution of R.I
R.I. Gen. Laws Ann.
Reenactment) .
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
(1970 Reenactment) .
R.I. Gen. Laws Ann.
R-. I . Gen. Laws Ann.
See notes 19 and 20
R.I. Gen. Laws Ann.
M-
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
(197C Reenactment) .
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
R.I. Gen. Laws Ann.
See R.I. Gen. Laws
ment) .
R.I. Gen. Laws Ann.
§46-12-2 (1970 Reenactment) .
§46-12-3 (1970 Reenactment) .
§46-12-4 (1970 Reenactment) .
§46-12-5 (1970 Reenactment) .
§46-12-8 (1970 Reenactment) .
§46-12-14 (1970 Reenactment).
§46-12-17 (1970 Reenactment) .
Ann. §45-14-1 (1970 Reenactment) .
§46-21-1 et seq. (1970 Reenactment) .
. , Art. 28.
§§46-21-6, 46-21-7, 46-21-20 (1970
§46-21-18 (1970 Reenactment) .
§45-14-1 (1970 Reenactment) .
§46-12-33 (1970 Reenactment).
§§45-6-1 (1970 Reenactment), 45-2-1
§23-46-1 (1968 Reenactment) .
§45-34-2 (1970 Reenactment) .
.
§46-21-16 (1970 Reenactment) .
§46-12-3 (1970 Reenactment) .
§§46-21-21, 46-21-22, 46-21-23, 45-14-1
§§46-21-21, 46-21-23 (1970 Reenactment)
§45-14-1 (1970 Reenactment) .
§46-21-14 (1970 Reenactment) .
§46-12-7 (1970 Reenactment) .
§46-21-14 (1970 Reenactment) .
§45-12-1 et seq. (1970 Reenactment) .
§45-12-2 TT970 Reenactment) .
§45-12-19 (1970 Reenactment) .
§45-12-16 (Cum. Supp. 1972).
§46-12-32 (1970 Reenactment) .
§45-12-4 (1970 Reenactment) .
§45-12-18 (Cum. Supp. 1972) .
§46-12-33 (1970 Reenactment) .
§46-21-21 (1970 Reenactment) .
§45-40-1 (1970 Reenactment) .
Ann. §§46-12-3, 46-12-4 (1970 Reenact-
§46-12-18 (1970 Reenactment) .
- 64 -
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43. R.I. Gen. Laws Ann. §§46-12-3, 46-12-4 (1970 Reenactment)
44. R.I. Gen. Laws Ann. §46-12-14 (1970 Reenactment).
45. R.I. GEn. Laws Ann. §§46-21-3, 46-12-1 (1970 Reenactment)
46. R.I. Gen. Laws Ann. §46-21-26 (1970 Reenactment).
- 65 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
VERI10.JT REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
The Agency of Environmental Conservation is the central state
body charged with supervising the management of all waters
in Vermont. Water management in the state is geared under
this authority to the water classifications assigned by the
Water Resources Board to all waters in the state.1 In meet-
ing these classifications the Agency's Secretary administers
a comprehensive permit program designed to regulate all dis-
charges into state waters. Those who do not have a permit
are prohibited from discharging any waste into state waters
and, under certain circumstances,4 into publicly owned treat-
ment works. In connection with this program the planning and
standard setting functions of the Agency are tied directly
by statute i-nto the related requirements of the Federal Water
Pollution Control Act Amendments of 1972.5
In discharging these responsibilities the Secretary has broad
enforcement powers through the prosecution of suits against
those who have violated any provision of a discharge permit
or who have otherwise violated applicable state water pollu-
tion control legislation.5 Noncompliance with a discharge
permit may also be grounds for revocation of the permit,7
and, in response to the discharge of any waste in violation
of state law, the Secretary may issue "an order establishing
reasonable and proper methods and procedures" for the control
or elimination of such discharges. Notwithstanding the ex-
ercise of the above authority, the Secretary has the emergency
power to order an immediate stop to the discharge of any waste
that is causing an "imminent and substantial" danger to the
health and welfare of the affected populace.9
Penal sanctions are also imposed for a violation of any provi-
sion of the state water pollution control legislation and
for the failure to obey the terms of any order or permit issued
under that legislation. The penalty for each violation is a
maximum fine of $25,000 or imprisonment for not more than six
months, or both.11 For knowingly making any of a variety of
false statements or representations to the Secretary the penalty
-------
is a fine of not more than $10,000 or imprisonment for not
more than six months, or both.
1 2
On the local level the Water Resources Board is the desig-
nated agency to assist municipalities in the development of
facilities for the storage, distribution and treatment of
potable water supplies. The plans for those facilities must
also have the approval of the State Board of Health.13 Munic-
ipalities are then authorized to establish sewage disposal
departments under the supervision of a locally selected board
of sewage disposal commissioners. l "* In operating the sewage
disposal system, municipal corporations have broad powers to
establish ordinances and regulations and "to impose penalties
for their breach and provide for their enforcement."15 These
municipal corporations are then authorized to combine in groups
of two or more to from Consolidated Sewer Districts,16 to elect
their own board of sewer commissioners,17 and to establish the
rates for services rendered by the district.18
1.2 Schematic Diagram of Existing Agencies
Agency of Environmental
Conservation
Department of
Water Resources
State Board
of Health
i.'ater Resources
Board
Municipal Sewage
Disposal Systems
Consolidated Sewer
Districts
_J
68
-------
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND SE-
LECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and
Existing Works as Required by Any Areawide Plan. [§208
(c)(2)(C)].
Municipal corporations have direct authority to "construct,
maintain, operate, and repair" sewage disposal systems.19
Municipalities also have authority to dispose of sewage for
other towns, cities, villages, corporations or individuals by
contracting "with the state, the federal government of any
appropriate agency thereof."20 Consolidated sewer districts
are authorized to develop, acquire or improve sewage systems
for the purpose of disposing of the sewage from the district.21
Although the availability of service is thus limited to the
district, neighboring towns may be admitted upon a decision
by the district board of sewer commissioners that the bound-
aries of the district should be changed and by a majority
vote of a meeting of the district voters approving such ad-
dition.22
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Farposes
[§208(c)(2)(D)].
Municipalities are authorized to accept and utilize for water
pollution abatement projects state assistance grants.23 A
more general authority to accept and utilize funds from any
source may be implied from the broad contracting authority
granted to municipalities.21* The consolidated sewer districts
have the authority to enter into agreements with state or
federal governments in order to obtain grants or loans for
the purpose of financing any project for which the district
has authority to implement. 5
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [ §208 (c) (2) (E)] .
Municipalities do not have specific authority to charge for
sewage services on the basis of the volume, nature or delivery
flow rate of the effluents; however, such authority may reason-
ably be inferred from the municipal authority to establish
- 69 -
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charges on any equitable basis.26 Municipalities have the
further authority to levy and collect taxes on the ratable
estate of the municipal corporation as is necessary for the
payment of sewage disposal expenses and indebtedness..27
Consolidated sewer districts have the same assessment author-
ity as municipalities,28 and the member towns have the addi-
tional taxing authority to raise revenue sufficient to meet
their respective share of the district expenses.29
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)].
The charges imposed on the users of both systems may well take
into account the proportionate share of costs assignable to
differing usage categories. This authority, under both sys-
tems, is implied from one of five charge methods which allows
the commissioners to charge "on any other equitable basis."30
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [§204(b) (1) (B)] .
There are no specific provisions authorizing municipalities
to recover the capital costs of their sewage systems although
such authority may be inferred from the equitable basis method
of charging for sewage services.31 The authority to recover
the federally funded portion of the construction costs may
also be inferred as incidental to the municipal contracting
authority with the federal government for sewage disposal.
Consolidated sewer districts are required to establish their
rates so as to recover the cost of the sewer system for which
an indebtedness was assessed by the district. Since the EPA
grants represent an indebtedness for the industrial portion of
the construction costs so funded, -this requirement can be met
by the districts.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (P)] .
Municipalities may for the purposes of adequately disposing
of sewage within i,- boundaries, establishing and operating
- 70 -
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a sewage plant and making necessary improvements, issue evi-
dences of indebtedness or negotiable bonds.34 Consolidated
sewer districts may also issue bonds "for the purpose of pay-
ing the cost of a sewer system and improvements thereto."35
These long-term debt capacities of both systems are supple-
mented by the short-term debt capacity implicit in the munic-
ipal and district contract authorizations.36
2.4.1 General Obligation Funding.
The normal debt ceiling imposed on municipal obligations37
is not applicable to the general obligation funding for sew-
age disposal systems.38 Upon approval by a majority of those
voting, negotiable bonds or other forms of indebtedness may
be issued for a period of up to thirty years from the date
of issue.39 The districts are also free of the customary
debt limits and may, upon a majority vote at a district meet-
ing, issue general obligation debt for a period of up to thirty
years from the date if issue.l+0 The shares of such district
indebtedness shall be apportioned respectively among the mem-
ber towns, and the liability thereon of the members and the
district is joint and several.1*1
2.4.2 Special Funds and Revenue Funding.
Municipal corporations are not given the authority within the
statutes dealing with sewage disposal systems to engage in
revenue funding. However, a municipal corporation is autho-
rized to engage in revenue funding for the construction, op-
eration or management of any public utility.1*2 This authority
relates to sewage systems only by implication, since the term
"public utility" is not defined and there appear to be no
cases construing its meaning.
Consolidated sewer districts are given direct authority to
issue revenue bonds with the one condition being that no such
bonds may issue while the district is liable on any outstand-
ing bonds or other evidences of indebtedness, however the dis-
trict may issue general obligation bonds for the refunding of
any evidences of district indebtedness.1*3
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c) (2) (G)] .
After the approval of a district's annual budget, the board
- 71 -
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of sewer commissioners computes the share of each member town
and gives notice to the legislative branch of each member
town the amount of its respective contribution. 44 Expenses
incurred in excess of proceeds from indebtedness and service
charges are then divided among the member towns according to
a formula adopted at an annual or special meeting of those
towns. In the absence of an agreed on formula, two-thirds
of such expense is to "be divided in the proportion which
the total sewage . . . flov to the inhabitants of each member
town of the district bears to the total sewage flow in all
the member towns in the last preceding full calendar year of
operation" and the balance is to be divided among the member
towns in the proportion which the population of each member
town according to the last rental census bears to the total
population of the district."1*5 This procedure provides ade-
quate authority to meet this requirement and is supplemented
by the district's authority to establish charges to users on
any equitable basis.1*6
2.6 Authority to Refuse to Receive Any Wastes from Any Munic-
ipality or Subdivision Thereof, Which Does Not Comply
With Any Provisions of an Approved Plan Under §202 Ap-
plicable to Such Area. [ §208 (c) (2) (H)] .
Neither municipalities nor districts have statutory authority
to "cut-off" existing municipalities being served. However,
the Secretary of the Environmental Conservation Agency does
have this power through its authority to revoke discharge
permits.47 The circumstances justifying a "cut-off" include
the violation by the holder of "any requirement, restriction
or condition" of the discharge permits, and the Secretary
may include such conditions as are necessary to carry out the
purposes of applicable state and federal law.1*8
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
Both municipalities and districts are without the prescribed
statutory authority to deny new or additional hook-ups for
prospective noncompliance with any provision of an areawide
plan. However, the Secretary may have such authority in his
power to grant or deny applications for discharge permits.
The relevant inquiry in the consideration of a permit appli-
cation is only the effect of the proposed discharge on water
quality and on applicable state and federal law.49 The in-
quiry is not geared to the possible noncompliance of the sur-
rounding municipality with an areawide plan; and, although
- 72 -
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the Secretary must issue a permit if the proposed discharge
is within the statutory requirements, the Secretary may in-
clude such conditions as are necessary to carry out the pur-
poses of applicable state and federal law.50 Consequently,
the Secretary might well include in the permit a condition
precedent delaying the operational effect of the permit until
the municipality involved complies with the provisions of
the areawide plan.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply with the
Areawide Plan.
The municipal and district agencies are without authority to
assess charges or impose penalties on anyone for such non-
compliance. However, municipal corporations do have the power
to enact ordinances "relating to the matters contained in this
chapter [Ch. 79, Sewage Disposal System], consistent with law,
and to impose penalties for the breach thereof."51 If a munic-
ipal corporation in conjunction with its treatment of dis-
charges from areas outside of its political boundaries (see
paragraph 2.1) were to adopt the provisions of its areawide
plan, it could then impose such charges and penalties for
breach thereof as it felt necessary.
The Secretary through his power to include conditions in the
discharge permits,5 may seek a wide variety of remedies by
bringing suit in equity for the violation of those conditions.53
These include inter-alia an injunction against future discharges
the assessment of punitive damages and levy civil penalties
of up to $10,000 a day for each day of violation.5
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
Municipal sewage disposal plants are explicitly authorized
to receive and accept industrial wastes.55 The authority of
district agencies to receive industrial wastes may reasonably
be implied from their general authority to receive sewage.56
3.0 SUMMARY
The Vermont statutes appear, directly and/or by implication,
to provide their waste treatment agencies with sufficient au-
thority to qualify under this study for federal grants for
construction.
- 73 -
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3.1 Deficiencies
The authority under paragraphs 2.6 to 2.6.2, although suffi-
cient in scope, is not locged with the respective waste treat-
ment agencies. Instead, such authority is placed with the
Agency of Environmental Conservation. Therefore, only to
the extent this authority is exercised in conjunction with
the regional waste treatment agencies will this portion of
the study meet federal requirements.
4.0 BIBLIOGRAPHY
1. Heins, Constitutional Restrictions Against State Debt,
(1963) .
2. rioros, Nicholas P., Effluent Fees in Water Quality Manage-
rnent: The Vermont Water Pollution Control Act, Environ-~
mental Affiars, p. 631 (1971).
3. Note, Water Pollution Control in Vermont; A System of
Effluent Charges, 4 Vt. Law Reform 135(19701^
FOOTNOTES
1. 10 V.S.A. §908(a) (Unofficial 4/6/73).
2. 10 V.S.A. §908(b) (Unofficial 4/6/73).
3. 10 V.S.A. §909 (Unofficial 4/6/73).
4. Id. Discharge into publicly owned treatment works is pro-
hibited when the waste "interferes with, passes through
without treatment, or is otherwise incompatible with
such works or would have a substantial adverse effect
on such works or on water quality."
5. 10 V.S.A. §908(b) (Unofficial 4/6/73).
6. 10 V.S.A. §9i7a (Unofficial 4/6/73).
7. 10 V.S.A. §913a (Unofficial 4/6/73).
8. 10 V.S.A. §916a (Unofficial 4/6/73).
9. 10 V.S.A. §923 (Unofficial 4/6/73).
10. 10 V.S.A. Ch. 33 (Supp. 1972).
11. 10 V.S.A. §918(a) (Unofficial 4/6/73).
12. 10 V.S.A. §918(b) (Unofficial 4/6/73).
13. 10 V.S.A. §578 (Supp. 1972) .
14. 24 V.S.A. §3611 (Supp. 1972).
15. 24 V.S.A. §3612 (Supp. 1972).
16. 24 V.S.A. §3671 (Supp. 1972).
17. 24 V.S.A. §3674(a) (Supp. 1972).
18. 24 V.S.A. §3679 (Supp. 1972).
19. 24 V.S.A. §3602 (1967).
- 74 -
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20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
24
24
24
10
24
24
24
24
24
24
24
Id.
24
24
24
24
24
24
24
24
24
Id.
24
24
24
24
24
10
10
Id.
Id.
24
10
10
10
24
24
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
V.
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
s
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
.A.
§
§
§
§
§
§
§
§
§
§
3606
3671
3685
1235
3606
3673
3610
3608
3679
3680
§3610
§
§
§
§
§
§
§
§
§
3606
3679
3608
3685
(1967) .
(Supp. 1972) .
(Supp. 1972) .
(a) (Supp. 1972) .
(1967) (see paragraph 2 . 1 in report)
(b) (Supp. 1972) .
(5) (Suip. 1972).
(Supp. 1972) .
(Supp. 1972) .
(Supp. 1972) .
(5) (Supp. 1972) .
(1967) ; (see paragraph 2.1 in report)
(3) (Supp. 1972) .
(Supp. 1972) .
(a) (Supp. 1972).
§3606 (1967) and 3673(b) (Supp. 1972).
1759
3608
3608
3684
§1822
§
§
§
§
§
§
§
§
§
3684
3680
3680
3679
913a
911a
3612
911a
917a
§917a
§
§
3601
3671
(a) (1967).
(1) (Supp. 1972) .
(2) (Supp. 1972) .
(a) (Supp. 1972) .
(1967) ,
(Supp. 1962) .
(a) (Supp. 1972) .
(b) (Supp. 1972) .
(Supp. 1972) .
(Unofficial 4/6/73) .
(c) (Unofficial 4/6/73) .
(1967) (Unofficial 4/6/73) .
(c) (Unofficial 4/6/73) .
(Unofficial 4/6/73) .
(1) , (5) and (6) (Unofficial 4/6/73).
(1967) .
(Supp. 1972) .
- 75 -
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REGION II
-------
PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
NEW JERSEY REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies.
New Jersey recently consolidated its pollution control func-
tions under the Department of Environmental Protection.1 This
department sets and enforces pollution standards through the
Division of Environmental Quality.2 The Department also
issues permits before any construction, improvement, alter-
ation or operation of a waste treatment work is allowed.3
A variety of sewerage management agencies exist in New Jersey.
Sewerage authorities may be created by municipalities, counties
and any geographically larger regions.1* County (or municipal)
water and sewage disposal authorities (municipal or county
utilities authorities) may be used to manage both water sup-
ply and waste disposal in regions of county size or smaller.5
Sanitary sewer district authorities may be created for regions
which are county size or larger.6 These authorities cover the
natural drainage area of any pollution threatened river, stream
or estuary. They also have the power to prevent the discharge
of any sewage into rivers by bringing injunctive suits to en-
join the emitters.7 Finally, sewer districts may be estab-
lished by municipalities to handle their waste water treat-
ment. 8
Thus, sewerage authorities, county and municipal water and
sewage disposal authorities, sanitary sewer district authori-
ties and sewer districts all exist within New Jersey.
- 79 -
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GOVERVOR
Potable waters
DEPARTMENT
OF
ENVIRONMENTAL PROTECTION
WATER POLICY AND
SUPPLY
oo
o
DIVISION OF WATER RESOURCES
Commissioner
CLEAN WATER COUNCIL
All waters
DIVISION OF ENVIRONMENTAL
QUALITY
Sewerage authorities
County water and sewage
authorities
Sanitary districts
Sewer districts
en
o
&
(D
3
D
ft
H-
O
o
hi
p)
O
Hi
w
X
H-
en
ft
H-
O
H-
0)
cn
NEW JERSEY WASTE WATER MANAGEMENT SCHEME
-------
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND
SELECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and Ex-
isting Works as Required By Any Areawide Plan. [§208(c)
(2) (C)].
All existing authorities have the exclusive power to construct,
operate and maintain sewage treatment systems within their
respective regions.9
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, For Waste Treatment Management Purposes.
[§208(c) (2) (D)].
Only municipal sewer districts do not have a statute provid-
ing them with authority to accept grants of money from any
source.l°
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [§ 208(c) (2) (E)] .
Revenues for the various sewage treatment systems may be
raised by imposing treatment charges on users based upon the
type and quantity of discharge.11
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204 (b) (1) (A)].
Sewerage authorities, water and sewage disposal authorities
and sanitary sewer authorities are all required to have "uni-
form [charges] throughout the district for the same type,
class and amount of use or service."12 Sewer districts do not
have such a mandate, but they are told to charge according to
what would be determined a proper rate.13
-------
2.3.2 Full Recovery Will Be Had From the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [§204 (b) (1) (B)].
Charges against industry's portion of construction costs could
be maintained by all sewer systems by exercising their reve-
nue powers discussed above.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)].
All existing sewer systems may be constructed or improved by
using some type of bonds. All such bonds are limited to for-
ty years duration.1"*
2.4.1 General Obligation Funding.
General obligation bonds may be issued by all municipalities
and counties.15 These bonds are limited to two percent of
the value of taxable land available for counties and three and
one half percent for all municipalities.16
2.4.2 Special Funds and Revenue Funding.
Revenue bonds are also available for all municipalities and
counties.17 In addition, sewerage authorities, water and
sewage authorities and sanitary sewer district authorities are
all granted revenue bonding power.18
2.4.3 Other Methods of Financing.
No other funding method is available.
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c) (2) (G)] .
Member communities using any of the four waste treatment agen-
cies must pay for that amount of service which they receive.19
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2.6 Authority to Refuse to Receive Any Wastes From Any Munic-
ipality or Subdivision Thereof, Which Does Not Comply
With Any Provisions of an Approved Plan Under §202 Appli-
cable to Such Area. [ §208 (c) (2) (H)] .
Sewage authorities and water sewage disposal authorities are
both given the directive that the discharge which is or may
be injurious to the system is not to be permitted.20 However,
there is no specific statutory approval for terminating ser-
vice until compliance for any sewer system and, due to the
serious impact of such action would have on a community's gen-
eral welfare, it should not be permitted absent such approval.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
Since the Department of Environmental Protection must give its
approval for any alteration of a sewer system,21 all agencies,
either directly or by seeking the Department's help, may refuse
to permit any additional users to use their facilities. Spe-
cific discretion is provided by statute for county sewerage
authorities.2 2
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
Any civil penalty apparently could be created by regulation
for water and sewage disposal authorities, municipal sewer-
districts and sewerage authorities since they are all given
the power to promulgate any regulation which they believe nec-
essary.23 County sewerage authorities have no such provision
and, they, might be prevented from creating any additional pen-
alties for non-compliance.
2.7 Authority to Accept For Treatment Industrial Wastes.
[§208(c) (2) (I) ] .
All sewer systems may accept industrial wastes.21* These dis-
charges are subject to no particular limitation by statute.
However, all agencies except county sewerage authorities could
certainly promulgate regulations permitting refusal of non-
complying wastes. Moreover, if such discharges were delete-
erious to the system itself (as would often be the case with
- 83 -
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a biological sewage treatment process), it is most unlikely
that any agency could not refuse them.
3.0 SUMMARY
Due to the variety and flexibility of the existing waste water
treatment agencies New Jersey should have little difficulty
in complying with federal requirements.
3.1 Deficiencies
1. Re: 2.2, Municipal sewer districts should be empowered
to receive grants for any waste management purpose.
2. Re: 2.6, Permission to refuse any municipality's waste
should be statutorily provided.
4.0 BIBLIOGRAPHY
1. Sussna & Kirrloff, Water Management Control, 94 N.J.L.J.
49 (1971).
2. ENVIRONMENTAL PROTECTION AGENCY, 1972 COMPENDIUM OF STATE
WATER POLLUTION CONTROL AGENCIES WITH REGULATORY/POLICY-
MAKING RESPONSIBILITY (1971).
FOOTNOTES
1D-1 et.seq. (Supp. 1972).
1D-5 (Supp. 1972).
1D-9 (Supp. 1972).
14B-2 (1967) .
14B-2 et.seq. (1967) .
36A-2 et.seq. (1967) .
36A-23.1 (1967).
63-1 et.seq. (1967).
14A-6, 14A-7, 14B-20, 23-19.3, 36A-
14A-7, 14B-21, 23-19.3 (1967).
14A-8(b), 14B-22, 36A-43, 63-7
14A-8(b), 14B-22, 36A-43 (1967).
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
N. J.R.S.
N. J.R.S.
N. J.R.S.
N. J.R.S.
N. J.R.S.
N. J.R.S.
N. J.R.S.
N. J.R.S.
N. J.R.S.
21 (1967)
N. J.R.S.
N. J.R.S.
(1967) .
N. J.R.S.
Ann.
Ann.
Ann .
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
m
Ann.
Ann.
Ann.
§13:
§13:
§13:
§40:
§40:
§40:
§40:
§40:
§§40
§§40
§§40
§§40
- 84 -
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13.
14.
15.
16.
17.
18.
N
N
N
N
N
N
.
.
m
J.
J.
J.
J.
J.
J.
R.
R.
R.
R.
R.
R.
S.
S.
S.
S.
S.
S.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
§
§
§
§
§
§
40A
40A
40A
40A
40A
§40
*
I
*
J
J
:
(1967) .
19.
N
m
J.
63-9
20.
21.
22.
23.
24.
N
N
N
N
N
.
ğ
.
m
J.
J.
J.
J.
J.
R.
8
R.
R.
R.
R.
R.
S.
(19
S.
S.
S.
S.
S.
Ann.
67) .
Ann.
Ann.
Ann.
Ann.
Ann.
§
§
§
§
§
§
§40
§40
13:
j
:
36A-
14A-
§40
*
63-7 (1967).
2-22 (F) (1) (1972) .
2-3(a) (1972) .
2-6(1972) .
2-45 (1972) .
14A-10, 14B-25, 23-19.8, 36A-60
14A-21, 14B-22, 36A-43, 63-79,
14A-28(b), 14B-60(b) (1967) .
lD-9(k) (Supp. 1971) .
55 (1967).
', 14B-20, 63-7 (1967).
14A-3(8), 14B-3(9), 36A-19, 63-10
(by implication) (1967) .
- 85 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
?!EW YORK REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
New York State's waste management and planning functions have
been revised over the past two years.1 Under these recent
laws the Department of Environmental Conservation was created
to act as a central agency for all of the state's pollution
control functions.2 Thus, the Department is the state's
enforcement and standard setting agency;3 standards must be
submitted for approval by the State Environmental Board.4
While the Department of Environmental Conservation acts to
oversee statewide pollution control, local governmental bodies
build, operate and manage sewage treatment facilities and sys-
tems. These facilities and Systems are operated either by a
county-level management, as a county sewer district,5 or by
any municipal-level management. A town, unincorporated village
or approved incorporated village, may establish sewer districts6
which may be consolidated into sewage disposal districts.7 Any
group of two or more of these municipalities may also join to-
gether to form joint sewer districts.8 Villages and cities
have their own sewage disposal systems: sewage systems for cities
and sewerage systems for villages.9 Any municipality or
county may contract to have its sewage treatment facilities
built and/or managed by the state-owned Environmental Facilities
Corporation.1°
The Department of Environmental Conservation may order the
construction of any of these facilities should it determine
that they are necessary.11
- 87 -
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1.2 Schematic Diagram of Existing Agencies
COUNCIL OF ENVIRONMENTAL
ADVISORS
approval
DEPARTMENT OF ENVIRONMENTAL
CONSERVATION
COMMISSIONER
submission of state-wide plans
DIVISION OF ENVIRONMENTAL
QUALITY
approval for funds
ri
submission of standards
STATE ENVIRONMENTAL BOARD
approval
i
c
(0
POLLUTION CONTROL PROGRAM
PURE WATERS
00
00
ENVIRONMENTAL FACILITIES
CORPORATION
funds for approved project
will build,' plan, etc.
sewerage plants if requested
LOCAL GOVERNING BODIES
SEWAGE WORKS CORPORATIONS
SEWER DISTRICTS
H
m
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT-
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and
Existing Works as Recruired by Any Areawide Plan. [§208(c)
(2) (C)] .
All county and municipal sewage disposal districts may construct,
operate and improve treatment facilities and systems. 2
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
[208(c) (2) (D)] .
All county and municipal sewage dispo.sal districts may apply
for and receive funds from all sources.13
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208 (c) (2) (E) ] .
Charges for the use of a sewer system known as "sewer rents"
may be imposed by authorized cities, counties, villages and
towns.14
These rents may be based upon "the volume and character of
sewage, industrial waste and other wastes discharged into the
sewer system."15
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency. [§204(b)(1)(A)].
Since charges may be based on the volume and character of the
effluent, each category of user could be charged its proportionate
share of the costs of operation and maintenance.16
2.3.2 Full Recovery Will Be Had from the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works
Reasonably Attributable to Treatment of Such
Industrial Wastes. [§204(b)(1)(B)].
Industrial users may be assessed for that pc-rtion of the con-
struction costs which has specifically benefited them by
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town, village and county systems.17 City systems would need
to recoup construction costs by using the sewer rent method,
and, since this may be done on an effluent characteristics basis,
industrial construction costs could be recovered.
2.4 Authority to Incur Short- and Long-term Indebtedness
[;208(c) (2) (F) ] .
Short-term indebtedness is permissible for all municipalities
through bond anticipation and tax anticipation notes. 8
Long-term indebtedness is also authorized as described in
paragraph 2.4.1 and 2.4.2
2.4.1 General Obligation Funding.
Two or more municipalities which have agreed to provide joint
sewage treatment facilities may issue general obligation
bonds, either jointly or severally.19 Such bonds must mature
within forty years if for new construction, and within thirty
years if for repair or replacement of equipment.20
Constitutional authority exists to allow counties, cities,
villages and towns to pledge their full faith and credit for
the payment of indebtedness.21 The same time limitations
apply to these bonds as apply to bonds for joint projects.
2.4.2 Special Funds and Revenue Funding.
Revenue bonds for the purpose of financing waste treatment
facilities may be issued by counties and municipalities.22
Such bonds may be financed by revenues from sewer rents.23
2.4.3 Other Methods of Financing.
New York State will pay up to thirty percent of the cost of
facilities with this amount reduced proportionately with any
federal assistance over sixty percent of that cost.2Lt
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208(c)
(2) (G) ] .
There exists statutory authority to enable the agencies to
charge communities proportionately:
Each . . . municipality . . . shall pay its just and
proportionate share for the [sewage system]. ...
- 90 -
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including the cost for the removal of sewage and of
maintenance and carrying charges of the system.25
2.6 Authority to Refuse to Receive Any Wastes From Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of an Approved Plan Under
§208 Applicable to Such Area. [ § 208 (c) (2) (H)] .
Municipalities and districts have express statutory authority
to enter into contracts among themselves and third parties for
joint operation of a sewage disposal system.26 Included in
this authority is the power to jointly supervise the operation
of the system.27 From this it is reasonable to imply the
authority to refuse to receive wastes from a party in violation
of the agreement.
2.6.1 Authority to Deny New or Additional "Hook-ups"
(Moratorium Effect).
Since any increase in effluent discharge requires the Department
of Environmental Conservation's approval,28 any new or addi-
tional hook-ups can be refused at the state level. Such a
result could also be obtained by local systems either by dele-
gation or by having the Department refuse a permit until the
proposed expansion complies with the state-wide plans.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply with the
Areawide Plan.
Additional sanctions are not expressly provided for any
sewer systems.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
No express provision grants any system the right to receive
industrial wastes. However, the general statutes which provide
for sewer controls for all systems includes industrial wastes
within its definition of sewage and, thus, industrial sewage
treatment would reasonably seem permissible.29
3.0 SUMMARY
New York's statutory framework for waste water management is
extremely consolidated, as evidenced by the fact that each
municipality's powers are often supplemented by statutes found
- 91 -
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elsewhere in the Consolidated Laws. Still, few objections can
be found which would preclude town, village and county systems
from receiving funds. Cities have only one statute concerning
their sewage systems; legislation might be required for their
systems. Legislation for assuring proportionate community
payments is notable.
3.1 Deficiencies
Re: 2.3.2, Cities should expressly be provided with some system
whereby they would be able to recoup their expenditure for
industry's portion of construction costs.
Re: 2.7, Statutory powers concerning treatment of industrial
waste would eliminate any possible uncertainty in this respect.
4.0 BIBLIOGRAPHY
1. Macchiargla, Local Finances under the New York State
Constitution with an Emphasis on New York City, 35 Fordham
L. Rev. 263 (1966).
2. Comment, Water Pollution Control in New York, 31 Albany
L. Rev. 50 (1967) .
3. Comment, Water Pollution, 35 Albany L. Rev. 198 (1971).
4. The Fresh Water of New York State: Its Conservation and
Use (L. Hitchcock, ed. 1967).
5. E. Haskell, Managing the Environment: Nine States Look
for New Answers (1971) .
6. 1970 Report of the Joint Legislative Committee on Environ-
mental Management and Natural Resources (Legislative Doc.
No. 13, 1970).
7. Report of the Joint Legislative Committee on Environmental
Management and Natural Resources, The Challenge of the
Seventies -- A Managed Environment for New York State
(Legislative Doc. No. 12, 1971).
8. Ronan, Proposed Reorganization of the Executive Branch of
New York State Government (1959) .
9. J. Weinstein, Essays on the New York Constitution (1966).
10. The New York Red Rook (79th ed. 1970).
- 92 -
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FOOTNOTES
1. New York's Environmental Conservation Law, §1-0101 et seq.
(1973), was just revised in this past legislative session,
having been in existence for less than two years.
2. Environmental Conservation Law (E.C.L.), §3-0101 (1973).
3. E.C.L. , §3-0301 (1973) .
4. E.C.L., §5-0107 (1973).
5. County Law, §250 et seq. (1972).
6. Town Law, §190 (Supp. 1972).
7. Town Law, §190-b (1965) . Since these have the same powers
as sewer districts they will not be further discussed.
8. Town Law, § 198 (f) (1965) .
9. Gen. City Law, §20 (1968); Village Law, §14-1400 (1973).
10. Public Authorities Law (P.A.L.), §1285 (Supp. 1972).
11. This power originally, and apparently again in 1971 (see
Public Health Law, §1104 (1971)) , was statutorily assigned
to the Department of Public Health. Since the consolida-
tion apparently did not include this section, there is no
evidence that this function was assigned to the Department
of Environmental Conservation except for E.C.L., §3-0301
(1972). This Section apparently preserves E.C.L., §77
(1970) (repealed) and, thus, prevents reversion of an
element of water pollution pollution control to the health
department.
12. Town Law, §198 l(a)(1965); County Law, §§263, 268 (1972);
Gen. City Law. §20 (Supp. 1972); Village Law, §14-1400 (1973).
13. E.C.L., §17-1903 (1973).
14. Gen. Municipal Law, §451 et seq. (1965) .
15. Gen. Municipal Law, § 451 (1) (1965) .
16. Id.
17. County Law, §270 (1972) ; Town Law, §202 (1965) ; Village
Law, §14-1432 (1973) .
18. Local Fin. Law, §§23, 24 (1968).
19. Local Fin. Law, §15 (1968).
20. Local Fin. Law, §11 (4) (1968) .
21. Const, of N.Y. Art. 8, §1. See also Local Fin. Law §10 (1968)
22. Const, of N.Y. Art. 8, §5. See also Gen. Municipal Law
§403 (1965) .
23. Gen. Municipal Law, §453 (1965) .
24. E.C.L., §17-1905 (1973).
25. Gen. Municipal Law, §120-h (1965) .
26. Gen. Municipal Law, §120-a et seq. (1965).
27. Gen. Municipal Law, §120-b (1965) .
28. Environmental Conservation Law, §17-0701(1) (B) (1973).
29. Gen. Municipal Law, § 451 (4) (1965) .
- 93 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
PUERTO RIO) RFDORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Puerto Rico's waste water management system is orcranized on
a centralized territory-wide basis. Its newlv-created Board
of Environmental Quality handles all standard setting and pol-
lution abatement duties.1 Both this Board and the Secretary
of Health on advisement from the Water Pollution Control Ad-
visory Board may declare where and to what extent sewage may
be discharged into Puerto Rican waters.2
Sewage management is conducted by the Aqueduct and Sewer
Authority.3 This authority, created in 1945, consolidated
all of the existing independent municipal sewer districts in-
to the one territory-wide agency. Those municipal mayors who
felt that they were aggrieved by this action had ten days in
which to petition for exclusion from the Authority-4 Since
this agency is territory level any act authorized by the govern-
ment presumably will enable the Department to comply with the
Act's provisions.
1.2 Schematic Diagram of Existing Agencies
Governor
Board of Environmental Quality
Aqueduct and Sewer Authority
- 95 -
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND
SELECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c)(2)(C)].
The Aqueduct and Sewer Authority may "hold, operate, and ad-
minister" the island's sewer system.5 This should be suffi-
cient authority to satisfy this section.
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
The Aqueduct and Sewer Authority is empowered to "accept grants
of any kind from any source."6
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [§ 208(c) (2) (E)] .
A broad provision grants the Authority power to
determine, fix, alter, charge and collect. . .reasonable
rates, fees, rentals, and other charges for the use of
the facilities, or for. . .sewerage services. . . 7
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204 (b) (1) (A)].
Presumably the broad grant to assess reasonable charges, dis-
cussed above, would be sufficient to charge each user category
its part of the services' cost.
2.3.2 Full Recovery Will be Had From the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [ §204(b) (1) (B)] .
Again, construction costs may be recovered under the power,
discussed above, to "collect. . .other charges. . .for sewerage
services. . ."
- 96 -
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2.4 Authority to Incur Short- and Long-term Indebtedness [§208
(c) (2) (F) ].
No time restrictions are placed on the revenue bonds which the
Authority may issue.
2.4.1 General Obligation Funding
The Authority is not empowered to issue general obliaation bonds.
2.4.2 Special Funds and Revenue Funding.
Revenue bonds may be issued to finance anv construction or modifi
cations of treatment facilities, payable exclusivelv from the
Authority's revenues.8
2.4.3 Other Methods of Financing.
No additional funding is available.
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management 'Plan That Each Particioating Community
Pay Its Prooortionate Share of Treatment Costs. [§208(c)
(2)(G)].
Presumably since reasonable rates are to be paid by all users,
the communities also all must pay only their proportionate
share. See above.
2.6 Authority to Refuse to Receive Any Wastes From Any Munici-
pality or Subdivision Thereof, Which Does Not Comoly With
Any Provisions of an Approved Plan Under §202 Applicable
to Such Area. [ § 208 (c) (2) (H) ] .
Since waste treatment is handled at the territory level it is
most probable that compliance may be enforced directly through
the Authority's regulatory and rule making powers.9
2.6.1 Authority to Deny New or Additional "Hook-ups"
(Moratorium Effect).
Again, it is most orobable that hook-ups may be denied through
the Authority's general rule-making powers.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Acrainst Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
Since rules may be made to insure efficient operation of the
- 97 -
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facilities10 additional penalties probably also may be promul-
gated.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208 (c) (2) (I) ] .
The sewage system may receive industrial wastes.11 Although
no specific provision exists for regulating industrial waste
quality, rules may be promulgated to obtain this objective
since such regulation is assuredly necessary for the facili-
ties' "efficient operation."
3.0 SUMMARY
Puerto Rico's waste water management system should fully comply
with the Act's provisions.
4.0 BIBLIOGRAPHY
None .
FOOTNOTES
1. Laws of Puerto Rico Ann. tit. 12, §§1131(12), (14), (22),
(Supp. 1972).
2. Laws of Puerto Rico Ann. tit. 24, §§594, 597, (1954); tit.
12, §1131(19), (Supp. 1972).
3. Laws of Puerto Rico Ann. tit. 22, §§141 et seq. (1964).
4. Laws of Puerto Rico Ann. tit. 22, § 145 (b7Tl964). Local
systems, should they exist at all, will not be treated
since there is no statute concerning their establishment
and, thus, no readily available source for that inquiry.
5. Laws of Puerto Rico Ann. tit. 22, §144 (e) (1964) .
6. Laws of Puerto Rico Ann. tit. 22, §144 (h) (1964) .
7. Laws of Puerto Rico Ann. tit. 22, §144 (i) (1964) .
8. Laws of Puerto Rico Ann. tit. 22, §152 (1964).
9. Laws of Puerto Rico Ann. tit. 22, §144 (j)-(h) (1964) .
10. Laws of Puerto Rico Ann. tit. 22, §144 (j) (1964) .
-------
VIRGIN ISLANDS
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Four territory-level administrative agencies manage all water
pollution matters for the Virgin Islands. Pollution stand-
ards are promulgated by the Water Resources Commission1 and
the Department of Health.2 The Department of Conservation
and Cultural Affairs enforces these standards.3
Waste water management is handled by the fourth agency, the
Department of Public Works.1* This agency operates all of the
Island's sewer systems. Since this agency is territory-level
any act authorized by the government persumably will enable
the Department to comply with the Act's provisions.
1.2 Schematic Diagram of Existing Agencies
Department of Health
Department of Public Works
Water Resources Commission
Department of Conservation
and Cultural Affairs
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING TJ'EIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208 (c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c) (2) (C) ] .
The Department of Public Works is directed to "repair, maintain,
operate and administer the sewage, disposal system."5
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, For Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
The Department of Conservation and Cultural Affairs is empowered
to "administer grants to the Government of the Virgin Islands
for the construction of sewage treatment works."6 This provi-
sion should not preclude the Department of Public Works from
so acting, especially in light of the fact that it is already
so empowered with respect to federal and for other government
works.7
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [§ 208 (c) (2) (E)].
Fees may be charged users at a rate to be suggested by the
Department of Public Works and determined by the Governor.8
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§ 204 (b) (1) (A) ] .
Administration of the system by a territory-wide agency should
ensure proportionate payment by each user category.
2.3.2 Full Recovery Will Be Had From the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of Such
Industrial Wastes. [§204 (b) (1) (B)1 .
Since fees are to be determined by the Governor he should be
- 100 -
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able to charge industrial users for their portion of the con-
struction costs.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)] .
The Virgin Islands government may issue both general obligations
bonds and revenue bonds.
2.4.1 General Obligation Funding.
General Obligation bonds may be issued by the Islands for a
period of not more than thirty years.9 All such indebtedness
may never exceed ten percent of the aggregate assessed valua-
tion of taxable Virgin Island property.
2.4.2 Special Funds and Revenue Funding.
Bonds which are redeemable solely from a public improvement
revenue may be issued by the government.
2.4.3 Other Methods of Financing.
No other funding is available.
2.5 Authority to Assure In Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c) (2) (G)] .
Since fees are to be determined by the Governor all communities
should be assured of proportionate treatment.
2.6 Authority to Refuse to Receive Any Wastes From Any Munic-
ipality of Subdivision Thereof, Which Does Not Comply
With Any Provisions of An Approved Plan Under §202 appli-
cable to Such Area. [§208 (c) (2) (H)] .
Although the Department of Public Works is directed to "admin-
ister" the Island's sewage disposal system, this does not
necessarily include regulation of sewage discharges. The De-
partment of Health has a statutory obligation to determine
what types of sewage may be discharged into the public
sewers. This, however, should not preclude the Department
of Public Works from making this determination through its
recommendations to the Governor.
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2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
Again, this authority could most likely be exercised by way
of recommendations or requests from the Department to the
Governor.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
Other penalties might be obtained the same way as above.
2.7 Authority to Accept For Treatment Industrial Wastes.
I5208(c)(2)(I)].
The Department of Public Health's determination is necessary
to provide for acceptance by the public sewer system. Prob-
ably industrial wastes still could be refused if they did not
comply with Public Works' suggested rules and regulations.
3.0 SUMMARY
The Department of Public Works, as a territory-level agency,
should have an advantage over its municipal level counterpart.
There are very few statutory provisions which cover Virgin
Islands sewage management. If the fact that the Governor
makes the final determination of what rules should be promul-
gated does not undermine the agency's ability to comply with
the Act, the Department's powers are fully compatible with
the Act's requirements. This statutory framework shows how
minimal, broad statutory powers may provide an agency with
the potential of fully complying with the Act.
4.0 BIBLIOGRAPHY
None
FOOTNOTES
1. Virgin Islands Code Ann. tit. 12, §163.
2. Virgin Islands Code Ann. tit. 19, §1522 et seq.
3. Virgin Islands Code Ann. tit. 3, §401 et seq. (1967).
4. Virgin Islands Code Ann. tit. 3, § 138(4) (1967) .
5. Id.
- 102 -
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6. Virgin Islands Code Ann. tit. 12, §184 (j).
7. Virgin Islands Code Ann. tit. 3, §138 (11) (1964) .
8. Virgin Islands Code Ann. tit. 3, §138 (4) (B) (1967) .
9. Revised Organic Act of 1954 §8 (b) (ii) (A) .
10. Revised Organic Act of 1954 §8 (b) (i) (Supp. 1972). See
also 4 Virgin Islands Atty. Gen. Repts. 5 (Jan.21, 1960)
11. Virgin Islands Code Ann. tit. 19, §1522 (2) (1964) .
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REGION III
-------
PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
DELAWARE REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Enforcement and regulatory powers relating to water pollution
control in Delaware reside, generally, within the Department of
Natural Resources and Environmental Control (DNREC).
The Secretary of the Department is authorized to hold public
hearings and conferences with suspected violators of the
State's water pollution control laws and issue appropriate
orders on the basis of those hearings and conferences.2 The
Secretary is also authorized to hold public hearings with
respect to any permit, variance or grant for which an appli-
cation has been made.3
The DNREC may conduct inspections of establishments for the
purpose of investigating possible pollution sources and issue
pollution abatement orders.4 Also, its approval is required
before construction or alteration of sewage systems can be
undertaken.5
Within the DNREC are the Division of Environmental Control (DEC)
and the Delaware Air and Water Resources Commission (DAWRC).
The DEC's powers are limited (in the field of water pollution
control) to those inspection powers also possessed by the DNREC.6
The DAWRC conducts appeals from decisions of the Secretary7 and
issues orders pursuant to the appeals.8 It is authorized to
issue orders and adopt rules and regulations, after a public
hearing thereon, for the installation, use and operation of
systems, methods and means for controlling water pollution.9
Management treatment powers are vested in local municipal sewer
authorities which are created by local enabling referendums.l °
An authority's jurisdiction may extend over several municipalities
as long as favorable referendum votes have been obtained from
all of the affected municipalities.11 An authority can be
abolished in the same manner it was created.12
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In addition, each of Delaware's three counties may establish
one or more sewer districts to serve as management agencies.13
Such districts are also created by referendums.l^
1.2 Schematic Diagram of Existing Agencies
Department of Natural Resources and Environmental Control
Organization Chart of Divisions Responsible for Water
Quality Control
GOVERNOR'S COUNCIL ON
NATURAL RESOURCES AND
ENVIRONMENTAL CONTROL
OFFICE OF ADMINISTRATION
OFFICE OF PLANNING AND
CONSTRUCTION
OFFICE OF
INFORMATION AND
EDUCATION
DIVISION OF ENVIRONMENTAL
CONTROL
I
WATER AND AIR RESOURCES
COMMISSION
- 108 -
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND
SELECTED RELATED SECTIONS OF THE ACT.
As noted in paragraph 1.0, four management agencies will be
analyzed in this report; sewer authorities and sewer districts
(for Kent, Sussex and New Castle counties).
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208 (c) (2)(C)].
All treatment agencies under consideration are authorized to
construct, operate and maintain such treatment works.15
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
All of the treatment agencies are authorized to receive grants
from the federal and state governments.16 Each provision insures
that such money cannot be diverted from its intended use by
providing that the grant be applied either for the purposes for
which it was made or for the purposes of the chapter (which sets
forth the powers and duties of the management agency).l 7
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [ § 208 (c) (2) (E)].
As will be noted below, all of the treatment agencies may assess
charges.
2.3.1 Each Category of User Will Pay its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204 (b) (1) (A)].
Of the four agencies under consideration, sewer districts located
in Kent County have the clearest authorization to meet the re-
quirements of this paragraph; for their charges may be based on
the volume and character of sewage, industrial waste and other
waste discharged into the sewage system.* 6
Sewer districts located in Sussex County may charge on the basis
of factors determining the type, class and amount of use or ser-
vice of the sewerage . . . system.* aSewer authorities may
- 109 -
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charge on the basis of any . . . factor affecting the use of
the facilities furnished.Both of these broad standards
should enable the respective agencies to meet the requirements
of this paragraph.
On the other hand sewer districts located in New Castle county
must use a front footage assessment basis.21 This would not
be sufficient for purposes of the Act since this basis is not
necessarily proportionate to the cost of treating each user's
waste.
2.3.2 Full Recovery Will be Had From the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works Reason-
ably Attributable to Treatment of Such Industrial
Wastes. [§204 (b) (1) (B)] .
For the reason noted in paragraph 2.3.1, New Castle sanitary
districts will not comply with the requirements of this para-
graph if assessments are based on a front-footage basis.
Only sewer authorities are specifically authorized to charge
to the extent necessary to cover construction cost.22 Since
this same provision also permits authorities to charge to the
extent necessary to cover the principal and interest on bonds,
it is clear that they may charge for construction costs not
financed through revenue bonds (i.e., the federal portion).
Provisions covering sewer districts located in Kent and Sussex
Counties are more vague on this point. No provisions covering
Kent's districts state what the charges must be sufficient to
cover. Sussex's districts must charge an amount at least
sufficient to pay principal and interest on bonds and to cover
operation and maintenance of the sewer system.2 3 Because of
the broad grant of power to both agencies on this matter,
compliance with this paragraph should be achievable.
2.4 Authority to Incur Short- and Long-Term Indebtedness [§208
(c) (2) (F)] .
All the treatment agencies under consideration may issue revenue
bonds.
2.4.1 General Obligation Funding.
All county sanitary districts are authorized to issue general
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obligation bonds backed by the full faith and credit of the
counties.214 Municipal sewer authorities, however, are pro-
hibited from pledging the faith and credit of the state or
any subdivision thereof to the payment of the principal or
interest of bonds.25
2.4.2 Special Funds and Revenue Funding.
Sewer authorities and sanitary districts located in Kent and
Sussex Counties may issue revenue bonds having a maximum maturity
period of 40 years;26 New Castle's district may issue revenue
bonds of 30 year maximum duration.27
2.4.3 Other Methods of Financing.
Sewer districts located in Kent County may levy (ad valorem)
taxes on property located within the district in order to pay
for improvements made in the sewage facilities subsequent to
the original acquisition or construction of such facilities.28
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan that Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208(c)
(2) (G)] .
Since the sanitary districts of all counties are authorized to
charge each user his share of operation and maintenance costs,29
it is assumed that they can assure that each community pays its
proportionate share.
2.u Authority to Refuse to Receive Any Wastes From Any
Municipality of Subdivision thereof, Which Does Not
Comply With Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§208 (c) (2) (H)] .
None of the treatment agencies are specifically authorized to
refuse a municipality's waste.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
Any prospective user of a Sussex County Sewer district's system
must first obtain a permit from the district before connecting.30
This may, in effect, give such districts a moratorium power. It
is to be noted, however, that the above provision does not
state the-conditions for a permit refusal, and it might, there-
fore, be argued that the desire merely to prevent any further
hook-ups is not sufficient justification for a refusal.
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Kent County sewer districts may require persons located within
its jurisdiction to hook-up with its system.31 While it might
be inferred from this that such districts can also deny hook-
ups, the justification for such a denial would again be ques-
tionable.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply With
the Areawide Plan.
Sewer Districts located in New Castle County are empowered to
promulgate rules and regulations governing the use of sewer
systems and treatment plants.32 It would seem that such rules
and regulations could provide for assessments of penalties
against noncomplying municipalities.
The remaining agencies are authorized to enter into contracts
with municipalities and political subdivisions for the furnish-
ing of sewer services.33 This, again, should be sufficient
authorization to enable these agencies to comply with the
requirements of this paragraph.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
Sewer authorities are specifically authorized to require indus-
tries to pretreat their waste before discharging into sewer
systems of the authorities.34
The remaining agencies are authorized to enter into contracts
with industries for the furnishing of sewer services.35 Such
an ability to contract would seem to include the ability to
place conditions on the furnishing of such services.
3.0 SUMMARY
Of the four management agencies discussed -- sewer "authorities"
and the sewer districts for Kent, Sussex and New Castle counties
the sewer authorities would seem able to meet the requirements
of the Act with the fewest revisions of present authority.
Kent and Sussex counties also meet the requirements of the Act
but sewer authorities have the advantage of being most adaptable
to areawide plans since their jurisdiction may cross municipal
boundaries upon favorable referendum votes. The county sewer
districts are apparently limited in their jurisdiction to the
boundaries of a particular county.
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3.1 Deficiencies
New Castle county cannot comply with paragraphs 2.3.1 and 2.3.2
to the extent their charges are based on "front footage."
While all treatment agencies may issue revenue bonds, only Kent
County has any additional method of obtaining funds.
No treatment agencies are authorized to refuse to receive wastes
upon noncompliance with an areawide plan.
4.0 BIBLIOGRAPHY
1. Delaware Conservationist (Issued quarterly by the Department
of Natural Resources and Environmental Control, Dover, Dela-
ware 19901) .
2. Annual Report of the Department of Natural Resources and
Environmental ControT (Issued annually) .
FOOTNOTES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
Del. Code
Del. Code
Del. Code
Del. Code
Del. Code
Del. Code
Del. Code
Del. Code
Del. Code
Del. Code
id.
Del. Code
New Castle County,
et
Ann .
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann .
Ann.
tit.
tit.
tit.
tit.
tit.
tit.
tit.
tit.
tit.
tit.
tit.
7,
7,
7,
7,
7,
29
7,
7,
7,
16
16
§
§
§
§
§
,§
§
§
§
t
r
6001
6006
6007
et seq.
(Supp.
(Supps .
(Supp. 1970)
1970) .
1970, 1972) .
6303 (b) (5) (Supp. 1970) .
6307
8013
6008
6009
6011
§1402
§1404
(Supp.
(Supps.
(Supp.
(Supp.
(Supp.
(Supp.
(Supp.
1970) .
1970, 1972) .
1970) .
1970) .
1970) .
1970) .
1970) .
Del. Code Ann. tit. 9,
.; Kent County, Del. Code Ann. tit.
1970) et seq.; Sussex County, Del.
1970) et seq.
4607
§§2301 (1953)
9, §4601 (Supps.
Code Ann. tit. 9,
9, §§2306 (1953)
(Supp. 1968)
16.
1968,
§6501 (Supps. 1968,
Del. Code Ann. tit.
6506 (Supp. 1968).
Sewer authorities, Del. Code Ann. tit. 16, §1406 (Supp. 1970),
Sewer districts, New Castle County, Del. Code Ann. tit. 9,
§2307(b) (1953); Sewer districts, Kent County, Del. Code Ann.
tit. 9, §4611(6) (Supp. 1968); Sewer districts, Sussex County,
Del. Code Ann. tit. 9, §6702(1), (2) (Supp. 1968).
Sewer authorities, Del. Code Ann. tit. 16, §1406(16) (Supp. 1970)
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17,
18,
19,
20
21,
22
23
24,
25
26
27,
28,
29,
30,
31,
32,
33,
34
35
Sewer districts,
9, §2319 (1953).
New Castle County, Del. Code Ann. tit.
Sewer districts, Kent County, Del. Code
Ann. tit. 9, §4611
Sussex County, Del
Id.
Del. Code Ann. tit
Del. Code Ann. tit
Del. Code Ann. tit
Del. Code Ann. tit
Del. Code Ann. tit
Del. Code Ann. tit
New Castle County,
(1), (2) (Supp. 1968). Sewer districts,
, Code Ann. tit. 9, §6702(6) (Supp. 1968)
, 9, §4613(a) (4) (Supp. 1968) .
9, § 6709 (b) (Supp. 1968) .
16, §1411 (Supp. 1970) .
, 9, §2317 (1953).
16, § 1406 (Supp. 1970) .
9, §6708 (b) (Supp. 1968) .
Del. Code Ann. tit. 9, §2311(b) (1953);
Kent County, Del. Code Ann. tit. 9, §4655 (Supp. 1968) ;
Sussex County, Del. Code Ann. tit. 9, §6706 (Supp. 1968)
Del. Code Ann. tit. 16, §1409 (Supp. 1970).
Sewer authorities, tit. 16, §1408 (Supp. 1970); Sanitary
districts, Kent County, Del. Code Ann. tit. 9, §4634
(Supp. 1968); Sanitary districts, Sussex County, Del.
Code Ann. tit. 9, §6704(c) (Supp. 1968).
Del. Code Ann. tit. 9. §2311(b) (1953).
Del. Code Ann. tit. 9, §4617 (Supp. 1970).
See text accompanying notes 18, 19 and 20, supra.
Del. Code Ann. tit,
Del. Code Ann. tit,
Del. Code Ann. tit.
Sewer authorities,
(Supp. 1970); Kent
9,
9,
9,
Del.
§6719
§4620
§2318
Code
(Supp.
(Supp.
(1953).
Ann. tit
1968)
1968)
16
County sewer districts,
14611(3) (Supp. 1968); Sussex
§1406 (14)
Del. Code
County sewer
1968).
Ann. tit. 9
districts, Del. Code Ann. tit. 9, §6702 (Supp.
Del. Code Ann. tit. 16, §1412 (Supp. 1970).
Kent County, Del. Code Ann. tit. 9, §4611(3) (Supp. 1968)
County, Del. Code Ann. tit. 9, §6702 (Supp. 1968);
Castle County, Del. Code Ann. tit. 9, §2318 (1953).
Sussex
New
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
WASHINGTON, D, C, REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
By Congressional declaration the management of the District of
Columbia is to be coordinated with the management of other areas
of the Washington metropolitan area,1 and in that coordinated
development priority is to be given to the solution of "the
problems of water supply, sewage disposal, and water pollu-
tion . . . "2 In addition to the District of Columbia this
coordinated area includes "the counties of Montgomery and
Prince George in the State of Maryland, the counties of
Arlington and Fairfax and the cities of Alexandria and Falls
Church in the Commonwealth of Virginia."3
In complying with this directive, broad responsibilities for
local as well as regional planning have been given to the
Department of Sanitary Engineering.1* The general functions
of the Department are to
. . . [P]lan, provide, operate and maintain sanitary
services and facilities . . . including: distribution
of water; control and disposal of storm water; collec-
tion; treatment and disposal of sewage; . . . [and]
administration of revenue and special fund activities
relating to water and sewer services . . .5
This department is then the primary body charged with executing
those standards, regulations and controls dealing with waste
treatment facilities. In the past broad responsibilities were
also given to the Department as the designated "state agency"5
under Section 303, Title III of the 1965 Water Resources Plan-
ning Act. 7
To further implement the Congressional policy of coordinated
development in the Washington area the Potomac Interceptor
was developed as a regional sanitary sewer system8 and operated
out of the Metropolitan Area Sanitary Sewage Works Fund of the
District of Columbia.9 This system is funded independently
of the District system which is operated out of the D. C.
Sanitary Works Fund.10
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The Department of Public Health has also been delegated water
pollution control responsibilities although this power is not
evident ov statute. These control functions are found in the
Commissioner's enabling order delegating to the Associate
Director for Environmental Health the responsibility for de-
veloping and implementing a program of environmental health.11
This delegation belies the Department's numerous responsibili-
ties as the "State Water Pollution Control Agency" under the
1965 Water Pollution Control Act.12
Underlying the above efforts, there is a Potomac Basin Policy
Committee and Task Force created by the December 31, 1972,
Joint Resolution by the Governors of the States of Maryland
and Virginia and the Commissioner of the District of Columbia
whose duty it is to develop an action program to deal with waste
treatment, water supply, water quality and the coordination of
the "planning activities and actions of local and state agencies."13
Compliance with District water pollution policies is grounded
in several statutes the enforcement of which is not within the
departmental responsibilities noted above. Under one of the
two misdemeanor statutes it is a crime to throw or deposit
prohibited matter in the Potomac River or its tributaries for
which violation the penalty is a fine not to exceed $100 or
imprisonment not to exceed six months or both.14 Under the
other misdemeanor statute the deposit of harmful substances
by industrial concerns in Rock Creek, the Potomac River or
its tributaries is prohibited15 with the penalty not to ex-
ceed $300 or imprisonment for up to 90 days or both.16 The
one felony statute provides a fine of $500-$1000 or imprison-
ment at hard labor for one to three years or both for mali-
ciously making the water of the District impure.17
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1.2 Schematic Diagram of Existing Agencies
United States Congress
President
B.C. Council
Commissioner
Interstate Resolutions
and Compacts
Department of Sanitary Engineering Department of Public Health
_L
1
District Sanitary
Sewer Service
Potomac Interceptor
Sanitary Sewer Service
Federal, State and
Local Jurisdictions
and Agencies
Associate Director of
Environmental Health
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208 (c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or By Contract, to Design and
Construct New Works and to Operate and Maintain New
and Existing Works as Required by Any Areawide Plan.
[§208(c) (2) (CH.
Within the Department of Sanitary Engineering the Associate
Director for Engineering and Construction has the explicit re-
sponsibility for the design, construction and repair of all
sanitary engineering systems and facilities.18 This authority
is granted by direct statutory appropriation,19 and by regu-
latory contract authority20 pursuant to the Commissioner's
regulatory powers in the sanitary sewage works area.21
Although not directly limited by statute, the availability of
this sewer service does suffer indirect limitations through
explicit restrictions on the water supply from the District.22
Specifically water service outside the District is limited to
the Washington Suburban Sanitary District of Maryland,23
Arlington County2"* and Falls Church, Fairfax County, Virginia.25
The Commissioner also has direct authority26 which he has dele-
gated to the Department of Sanitary Engineering27 to develop,
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operate and maintain a sanitary sewer system extending from
the District to the Dulles International Airport (the Potomac
Interceptor) with a capacity sufficient to provide service to
the airport and "the expected community growth and develop-
ment in the adjacent areas" of Maryland and Virginia.28 This
is part of a regional sanitary sewer system operated and main-
tained by the Commissioner in cooperation with the State and
local jurisdictions involved.29
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
t§208(c) (2) (D)].
The District of Columbia Sanitary Sewage Works Fund does have
an implied authority to accept grants or other funds from any
source;30 however, the uses to which this fund may be put are
restricted to expenses related directly to the sewer system
of the District, expenses attributed to the District by the
Interstate Commission on the Potomac River Basin,32 and expenses
for the receipt, by certain areas of the District, of sanitary
sewer service from Maryland.33
The Commissioner also has implied regional authority to accept
and utilize grants and funds received to the credit of the
Potomac Interceptor fund for expenses necessary to the con-
struction, operation and maintenance of the Interceptor.3k
Since the statute establishing this fund only talks of credits
to the fund in the context of charges to users,35 this author-
ity to receive funds from any source is implied from the Com-
missioners regulatory power over the Interceptor36 and the
absence of any conflicting statutes.
2.3 Authority to Raise Revenues, Including The Assessment
of Waste Treatment Charges. [§ 208 (c) (2) (E) ] .
Although there is a secondary authority to raise revenue in the
power to assess abutting property on a linear rate for the
construction of sewers, 7 the primary District authority to
raise revenue lies in the charge system to users of the sanitary
sewer system.38 This primary charge authority is based in part
on a consideration of the quantity of water service to the users
without any mention of the volume and nature of the effluent
and the delivery flow rate.39 The consideration of these
characteristics in the charging authority may be inferred from
the power of the District of Columbia Council to establish
such charges as are necessary to meet the expense of furnishing
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sanitary sewer service. "* ° Additional authority is in the
Commissioner to establish rules and regulations to carry out
the Sanitary Sewage Works Code."'
141
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency. [§204 (b) (1)(A)].
Although there is no specific authority to charge categories
of users based on the volume, composition and delivery flow
rate characteristics of the effluent, the above general author-
ity noted in paragraph 2.3 does allow the District Council to
establish "one or more sanitary sewer charges" at their dis-
cretion.1*2 Therefore, by implication this general authority
may allow for a charge system based on the category of user.
Furthermore, the regional charging authority of the Potomac
interceptor is exercised in conjunction with appropriate Federal,
State and local jurisdictions and is based on the cost of the
system.^ 3 This general authority would appear to be sufficient
to encompass cost categories of users that include the required
specific considerations of the effluent.
2.3.2 Full Recovery Will Be Had From the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works
Reasonably Attributable to Treatment of Such In-
dustrial wastes . [§204(b) (1) (B)] .
This authority of the District sewer works may only be implied
generally from the power of the District of Columbia Council
to set charges at a level sufficient to meet the expenses of the
sewage system and its debt retirement needs .'*4 Although the
charging provisions of the Potomac Interceptor relate general-
ly to users, they do explicitly provide for the recapture of
construction costs attributable to the agency or local author-
ity receiving services. "*5 These provisions would adequately
cover the federal portion of any industrial share of construc-
tion costs.
2.4 Authority to Incur Short- and Long-Term Indebtedness.
[§208(c) (2) (F)].
The ability of the Department to secure short-term debt is not
covered by statute. There is, however, a regulatory contract
authority from which a short-term debt capacity may be
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inferred. Although there is statutory authority for incurring
long-term debt, this ability is only in the context of ap-
propriations from the Secretary of the Treasury at the request
of the Commissioner.1*7 Funds from this source may not exceed
$106 ,000 ,000u8 for which repayment must be made within 30
4 9
years.
Similar debt capacity has been authorized for the Potomac
Interceptor. Without fiscal year limitations the Department
is authorized to receive an initial $3,000,000 from the federal
government for construction related expenses.50 Additional
debt capacity to a ceiling of $35,000,000 is further authorized
for U. S. Treasury advances.51 These amounts are then to be
repaid within a 40 year period.52 The Department also has
further authorization to receive additional federal loans which
do not have to be repaid.53
2.4.1 General Obligation Funding.
There is no statutory provision authorizing general obligation
funding. Therefore, there is no bonded indebtedness of the
District resting on the general credit of the municipality,
and the funding authority of the District is limited to
funding by the U. S. Treasury.
2.4.2 Special Funds and Revenue Funding.
As noted in paragraph 2.4.1, there is no statutory provision
authorizing these funding devices.
2.5 Authority to Assure in Implementation of Its Waste
Treatment Management Plan that Each Participating
Community Pay Its Proportionate Share of Treatment
Costs. [§208 (c) (2) (G) ].
Within the limited area covered by the District operations this
power has not been important and has not been covered by statute
However, such authority is relevant to a regional operation
such as the Potomac Interceptor and is to be found by implica-
tion in the powers granted to the Commissioner to establish
charges for the Interceptor in proportion to the costs as-
signable to any given agency or local authority.5"*
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2.6 Authority to Refuse to Receive Any Wastes from Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§ 20 8 (c) (2) (H) ] .
The District sanitary sewer system is not authorized by statute
to cut off sewer service. At most the Department may cut off
water supply to any premises that have not paid their sanitary
sewer service charge.55 To be an effective sanction the
premises involved must rely exclusively on the District for
its water supply. As with other areas, powers within this
section may be inferred from the Commissioner's rule making
authority. 6
The Potomac Interceptor is without even this rudimentary
authority. At most such authority may only be inferred from
the statutory authorization given to the Commissioner to run
the interceptor under such regulations as he may prescribe.57
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
There are no statutory provisions authorizing such a policy.
However, the Commissioner has authorized the Department to
deny new or additional hook-ups to the Potomac Interceptor
when the jurisdiction involved fails to comply with the regu-
lations relating to the "connecting and tributary sewers and
the users connected thereto."58 Although this authority is
pursuant to the Commissioner's regulatory powers, it should be
remembered that this denial authority itself is not statutory.
Under the same limitations, the Commissioner may well have
the same non-statutory authority to deny new or additional
hook-ups within the District sewer system pursuant to his
regulatory powers therein.59
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply with
the Areawide Plan.
Again there are no statutory provisions granting such authority
to the Department, although the Department is authorized by
regulation to assess users for the "repair of any damages . . .
any increased cost of operation and maintenance, and any per-
sonal liability or property damages assessed against the
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District, resulting from or caused by ... the violators of
those regulations.60
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208 (c) (2) (I) ] .
The Department has the overall authority to accept "sewage"61
with that term being defined to include commercial or industrial
wastes.62 Since this is a general authority there is no
specific statutory authorization to establish criteria for
acceptance of such wastes although under the Commissioner's
regulatory power specific criteria have been established for
the Potomac Interceptor governing not only the criteria of
acceptable discharges but also the criteria of prohibited
wastes.63 The power to enact similar regulations for the
District sewer system may be inferred from the statutory grant
of that regulatory power. 6I+ Other than this the Commissioner
has no authority to investigate conditions relating to the
discharge of waste on public or private property.
3.0 S UMMARY
The District authority given to the Department of Sanitary
Engineering, exclusive of the Potomac Interceptor, is in-
capable of coming within the requirements of §208 (c) for
waste treatment agencies. This portion of the Department's
powers have been built around the localized needs of the
District and therefore the ability of the Department to
respond with any flexibility to the needs of a growing urban
area or to the broader needs of an areawide plan are quite
limited (see paragraph 3.1 for specific deficiencies).
Although for the most part the Department's Potomac Inter-
ceptor authority is implied rather than specifically granted,
it is much more in line with the requirements of §208 (c)
than their authority over the District sewer system. Therefore,
any future remediaJ legislation might well be more bene-
ficially directed toward the Potomac authority.
3.1 Deficiencies
Under the District system and the Potomac Interceptor system
the following suggestions concern explicit statutory authority
presently provided only by regulation or by general inference
from broader statutory provisions. Rather than rely on impli-
cation and inference, the following should be considered in
any legislative appraisal of current enactments.
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1. The contracting authority under both systems should be
generally outlined to cover proper areas of contract
authority along with any material limitations thereon. (2.1)
2. Under the District system the ability to serve areas be-
yond its political jurisdiction should be clearly set
out in light of the negative implications contained in
the present restrictions on the availability of water
service. (2.1)
3. Both systems should be given explicit authority to accept
funds from any source for waste treatment management
purposes. (2.2)
4. Both systems should be given the explicit authority to
develop charge methods incorporating the volume, composi-
tion and delivery flow rates of the effluent and to
relate these charges to categories of users. (2.3/2.3.1)
5. The District system should be given explicit authority to
recapture the federal portion of construction costs of
sanitary sewer service attributable to industrial users.
(2.3.2)
6. Both systems should be given specific short- and long-term
debt authority of some nature to supplement the present
reliance on the U. S. Treasury. (2.4)
7. Both systems should also be given explicit authority to
refuse to receive wastes from any municipality or subdivision
thereof which does not comply with any provisions of an
approved areawide plan. Further authority should also be
given to deny new or additional hook-ups for failure to
comply with the provisions of an areawide plan. (2.6/2.6.1)
4.0 BIBLIOGRAPHY
1. Flaherty, p. and M. G. Thornett, Laws and Regulations
Relating to Water Pollution Control Affecting the
District of Columbia (Department of Public Health, 1967).
2. Title 12, Department of Sanitary Engineering, D. C.
Register Special Edition (Office of the Secretariat,
Washington, D. C., October 12, 1970).
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FOOTNOTES
1. D.C.C.E. §1-1301(1970).
2. D.C.C.E. §1-1303(1970).
3. D.C.C.E. §1-1305 (1970) .
4. D.C.C.E. §1, App. Ill, Organization Order No. 147 (C.O.
65-1154, August 12, 1968, as amended) (1970).
5 . Id. , Part II.
6 . Id. , Part III E.
7. 42 U.S.C.A. §1962C-2 (1965) .
8. D.C.C.E. §43-1621(a) (1970) .
9. D.C.C.E. §43-lG21(b), (c)(Supp. 1973).
LO. D.C.C.E. §§43-1602 and 43-1603(1970).
LI. D.C.C.E. §1, App. Ill, Organization Order No. 141 (C.O.
64-193, November 14, 1968, as amended)(1970).
L2 . P. Flaherty & G. M. Thornett, Laws and Regulations
Relating to Water Pollution Control Affecting the District
of Columbra, Part D at 270-l(June, 1967).
13. Joint Resolution by_ the Governors of_ the States of_ Maryland
and Virginia and the Commissioner of the District of
Columbia, December 31, 1972.
14. D.C.C.E. §22-1702(1970).
15. D.C.C.E. §22-1703(1970).
16. D.C.C.E. §22-1703) (a) (1970) .
17. D.C.C.E. §22-3118(1970).
18. D.C.C.E. §1, App. Ill, Organization Order No. 147, supra,
Part IV, D.
19. D.C.C.E. §43-1603(a) (1970) .
20. D.C.R.R. §§200 et seq. (Special Ed., October 12, 1970).
21. D.C.C.E. §43-1618(1970).
22. D.C.C.E. §43-1529(1970).
23. D.C.C.E. §43-1530(1970).
24. D.C.C.E. §43-1531(1970).
25. D.C.C.E. §43-1531(a) (1970) .
26. D.C.C.E. §43-1620(1970).
27. 12D.C.R.R. §401 (Special Ed., October 12, 1970).
28. D.C.C.E. §43-1620(1970).
29. D.C.C.E. §43-1621(a) (1970) .
30. D.C.C.E. §43-1602(1970).
31. D.C.C.E. §43-1603(a)-(c) (1970) .
32. D.C.C.E. 343-1603(d) (1970) .
33. D.C.C.E. §43-1603(e)(1970).
34. D.C.C.E. :43-1621(b) (1973 Supp.) .
35. D.C.C.E. §43-1621(b) and (c)(1973 Supp.).
36. D.C.C.E. 543-1621(a) (1970) .
37. D.C.C.E. 343-1511(1970).
38. D.C.C.E. "43-1605(1970).
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39. D.C.C.E. §43-1606(a)(1970).
40. D.C.C.E. §43-1606 (b) (1970) .
41. D.C.C.E. §43-1618(1970).
42. D.C.C.E. §43-1606 (b) (1970) .
43. D.C.C.E. §43-1621(b) (1973 Supp.).
44. D.C.C.E. §43-1606 (b) (1970) .
45. D.C.C.E. §43-1621(b) (1973 Supp.).
46. 12 D.C.R.R. §§200 et. seq. (Special Ed., October 12, 1970).
47. D.C.C.E. §§43-1604 and 43-1612(1970).
48. D.C.C.E. §43-1613(1970).
49. D.C.C.E. §43-1616(1970).
50. D.C.C.E. §43-1622(1970).
51. D.C.C.E. §43-1623(a) (1970) .
52. Id.
53. D.C.C.E. §43-1623 (b) (1970) .
54. D.C.C.E. §43-1621(b) (1973 Supp.). These charges are based
"upon the costs of operation; maintenance, and amortization
of the cost of all planning and construction (including
acquisition of rights-of-way) ..."
55. D.C.C.E. §43-1609(1970).
56. D.C.C.E. §43-1618(1970).
57. D.C.C.E. §43-1621 (a) (1970) .
58. Flaherty and Thornett, supra, Part D at 261.
59. D.C.C.E. §43-1618(1970).
60. Flaherty and Thornett, supra, Part D at 263.
61. D.C.C.E. §43-1603(a) (1970) .
62. D.C.C.E. §43-1601(a) (1970) .
63. Flaherty and Thornett, supra, Part D at 257-261.
64. D.C.C.E. §43-1618(1970).
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
In Maryland, the Departments of Natural Resources (DNR) and
Health and Mental Hygiene (DHMH) have responsibility for en-
forcing and administering the State's water pollution control
laws. The Secretary of Health and Mental Hygiene, appointed
by the Governor, has general supervision and control over the
waters of the State insofar as their sanitary and physical
condition affect the public health. The DHMH may make and en-
force rules and regulations and order works to be executed
to correct and prevent pollution.1 In addition to his role
as head administrator, the Secretary acts as advisor to muni-
cipalities and persons requesting information concerning water,
sewerage and refuse disposal systems.2 When waters of the
State are being polluted to such an extent that public health
is or may be menaced, the Secretary may also order that either
the pollution be ceased,3 or that more adequate water supply,
sewerage, or refuse disposal systems be installed.4 The
Secretary may also order the operator of a water supply,
sewerage or refuse disposal system to appoint and pay the
salary of a person, approved by the Secretary, who will take
charge and operate the system when, because of incompetent
supervision or inefficient operation, the system is not pro-
ducing reasonably expected results from a sanitary standpoint.5
Under the Environmental Service Act of 1970, when a munici-
pality or person fails to comply with an order of the Secretary,
the Secretary must direct the Maryland Environmental Service
(MES) to take necessary remedial actions, whether it involves
taking over or expanding an existing seweracre or refuse
disposal system or constructing and putting into operation a
new system.5
The Attorney General and, in particular, the counsel to the
DHMH render legal aid, advice and counsel to the DHMH.7 The
Board of Review hears appeals from decisions of the DHMH.8
The organization, powers and duties of the upper-level ad-
ministrative units in the DNR are generally parallel with those
of comparable units in the DHMH. However, the Department of
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Water Resources (DWR) and the Maryland Environmental Service
(MES) are specifically charged with the implementation of the
DWR's water pollution abatement program.
The DWR may issue, modify or revoke orders (1) prohibiting
discharges of wastes into State waters or (2) requiring the
construction, modification, etc. of new or existing treatment
works.9 It may also issue, continue in effect, revoke, modify
or deny permits for the discharge of wastewaters into State
waters and for the installation, modification or operation of
disposal systems.10 Without such permits the above listed
activities are unlawful.11
Whenever the DWR believes a violation of the pollution abatement
provisions has occurred it may order the violator to take cor-
rective measures.12 Upon failure of a person to comply with
an order of the DWR to abate pollution, the director of the
DWR may order the MES to provide projects required to abate
the pollution.13 Any violator of the pollution abatement pro-
visions or non-compliance with a DWR order is subject to fine
and conviction.111 The Attorney General is charged with the
duty of prosecuting such cases and obtaining injunctions.15
Finally, the DWR is responsible for developing "comprehensive
programs for the prevention, control and abatement of pol-
lution of waters of the State."16
In cooperation with the affected municipalities, the MES is
responsible for the planning, integration and establishment of
geographic service regions and districts.17 It is also re-
sponsible for the development of five-year plans for each
region . 1 8
In addition to the MES's responsibility of providing pollution
abatement facilities when so ordered by the DWR or DHMH, it
may construct, operate and maintain such facilities for muni-
cipalities or persons which so request.19 In addition to the
MES, there also exist a number of local and regional manage-
ment agencies.
The governing body of a municipality20 may act as the manage-
ment agency for facilities located in the municipality.21 The
governing body (hereinafter referred to as the Board) of a
municipality or governing bodies of two or more municipalities
may, by ordinance(s) or resolution(s), create a sewer authority
which acts as a management agency in the municipality or muni-
cipalities represented by the above mentioned Board.22
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In addition, the governing body (hereinafter referred to as
the Commission) of one county or governing bodies of two
or more counties may, by ordinance(s) or resolution(s),
create a sanitary district which acts as a management agency
in the counties represented by the above mentioned Commission.23
Some of the major jurisdictional limitations placed on dis-
tricts and authorities are (1) neither a Board nor a Commission
may duplicate or compete with existing utilities,24 and (2)
no county or municipality which has created a district or
authority may thereafter create any other district or authority
serving the same area.25
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MARYLAND
POLLUTION CONTROL
DEPARTMENTS WITHIN
THE
DEPARTMENT OF NATURAL RESOURCES
ATTORNEY GENERAL
(LEGAL ADVISOR)
BOARD OF REVIEW
DNR
SECRETARY
U)
o
AFFILIATES
(COMMISSIONS, COMMITTEES, ETC.)
ADVISORY
BOARD
DEPUTY
SECRETARY
ADMINISTRATION
AND PLANNING
ENVIRONMENTAL
SERVICE
WATER RESOURCE
COMMISSION
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND
SELECTED RELATED SECTIONS OF THE ACT.
The analysis of existing treatment agencies includes the four
noted in paragraph 1.0: municipalities,, sewer authorities,
sanitary districts and Maryland Environmental Service (MES).
With respect to each topic discussed, the capacity of each
such agency is discussed.
2.1 Authority Directly or by Contract, to Design and
Construct New Works and to Operate and Maintain New
and Existing Works as Required by Any Areawide Plan.
[§208(c) (2) (C) ] .
The governing body of a municipality26 may construct, purchase,
operate and maintain sewerage facilities2 (defined to include
treatment plants).28 Sewer authorities and sanitary districts
are established in order to (and, hence, are authorized to)
"acquire, construct. . .maintain and operate a project."29
"Project" is defined to include a "sewerage system,"30 which
is in turn defined to include sewage treatment plants.31
The MES is authorised to acquire, construct, operate and main-
tain waste water purification projects.32 Such projects in-
clude facilities which receive, treat and dispose of municipal,
industrial and individual sewage and waste.33
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D) ].
Municipalities are authorized to receive grants only from the
federal government.314 There are no express provisions which
require proper channeling of such grants. It should be noted,
however, that the federal government will place conditions on
the use of such grants when they are made. This should pro-
vide adequate protection to assure proper use.
On the other hand, sewer authorities,35 sanitary districts,36
and the MES37 are authorized to receive and utilize grants and
funds from any source, including the federal government. In
addition, all these provisions assure that the grants and funds
will not be misused by requiring that they be "held, used,
and applied only for the purpose for which such grants and
contributions may be made."
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2.3 Author!tv to Raise Revenues, Including the Assessment
of Waste" Treatment Charges. [§ 20 8 (c) (2 ) (E) ] .
Municipalities and sewer authorities are authorized to charge
for services in an amount sufficient to cover the interest
and principal on bonds (see paragraph 2.4) and the cost of
maintaining and operating sewage systems.38 In addition, the
governing body of a municipality is authorized to assess a
tax sufficient to cover the amount, of interest on the bonds
which could not be paid off by the use of funds received from
the service charges.39
Sanitary districts are authorized to charge for connection to
a sewer"line in an amount sufficient to pay the principal and
interest on bonds (see paragraph 2.4).4° Similarly, authori-
zation is provided for service charges or assessments suf-
ficient to cover maintenance, repair and operation of a sewerage
system. ** l
The MES can charge municipalities and persons located in that
service district for the full cost of the project,1*2 with
"persons" defined to include both individuals and industries.1*3
"Cost" is defined to include, among other items, the purchase
price or construction cost of the facility plus operation
and maintenance costs.1*1*
2,3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency. [§204(b) (1) (A)].
Charges which municipalities assess and use to pay off the
construction of sewerage systems are determined on a "foot
frontage" basis.1*5 The basis or methods for charges covering
operation and maintenance are not listed. Thus, it appears
that the governing bodies of municipalities are left to their
own devices in determining charges. If a "foot frontage" basis
is adopted this definitely would not satisfy the "appropriate
share" test of the Act, since the frontage of a particular
piece of property may not correspond to the user's "appropriate
share of the cost of operation and maintenance."
Charges assessed by sewer authorities may be based on "any . . .
factor affecting the use of the facilities furnished."1*6 This
general authorization enables authorities to charge on the
basis of quantity, quality and rate of flow, thereby permitting
comDliance with the "apnropriate share" test of the Act.
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Sanitary districts are authorized to base their charges "on
whatever reasonable basis the Commission selects."1*7 This
authorization is sufficiently broad to permit compliance with
the Act.
Charges assessed by the MES for operation and maintenance will
be based on, but not limited to, "a formula reflecting the
volume and characteristics of the wastes as they influence
transportation, purification, final disposition and time pat-
tern of discharge."1*8 This provision conforms with the re-
quirements of the Act.
Therefore, except in the case of municipalities, for which
no express provision is made for establishing treatment charges
to users, all treatment agencies appear to have the authority
to charge users for their appropriate share of treatment costs.
2.3.2 Full Recovery Will Be Had From the Industrial
Users of the Waste Treatment Works of the
Federal Portion of the Construction
Costs of Treatment Works Reasonably Attributable
to Treatment of Such Industrial Wastes. [§204
(b) (1) (B)].
Municipalities are to operate sewer facilities for the use and
benefit of persons, firms and corporations.1*9 In addition,
municipalities are authorized to re'cover construction costs
through charges on users.50 Thus, it appears that munici-
palities may receive industrial wastes and, hence, charge
construction costs against user industries. As noted in para-
graph 2.3.1, however, the charges are based, not on treatment
costs, but rather, on a "front footage" computation. For a
discussion of the problem associated with such a basis , see
paragraph 2.3.1.
Sewer authorities and sanitary districts must charge for their
services in an amount required to cover (among other items)
the principal and interest on the bonds51 (see paragraph 2.4).
There may be some difficulty for sewer authorities and sani-
tary districts to comply with the Act under these provisions
if recovery is made a part of the service charge system. This
follows since authorities and districts are statutorily required
to pay the principal and interest on bonds through service
charges, and they may be precluded from recovering the re-
mainder of construction costs (i.e. the "federal share") by
virtue of a negative i: plication. This problem may, however,
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be avoided if the terms of the grant or contract with the
granting agency require such recovery and if the sewer author-
ities or sanitary districts are empowered to accept such grants
or enter into such contracts. It can also be avoided by re-
covering such share apart from service charges.
As noted in paragraph 2.3, the MES can recover construction
costs through charges on municipal, industrial and individual
users. Thus, MES could recover the federal share of such
construction costs. The formula used to compute charges for
operation and maintenance is discussed in paragraph 2.3.1.
This formula provides for charges based on how much it costs
to treat each industry's waste. A similar pro-ration could
be used to determine the "construction costs of treatment works
reasonably attributable to treatment of such industrial wastes."
2.4 Authority to Incur Short- and Long-Term Indebtedness.
[§208(c) (2) (F) ] .
As will be noted below, all four management agencies have
bonding powers of some type. Throughout the following discus-
sion it will be assumed that, if there is no specific authority
to incur short-term indebtedness, such authority is implicit
in the absence of minimum maturity restrictions on long-term
issues. See also the comments in paragraph 2.4.3 with respect
to temporary loans and advances.
2.4,1 General Obligation Funding.
The governing body of a municipality is authorized to issue
general obligation bonds without prior legislative authori-
zation. The bonds are to be nontaxable by the state, may not
have a maturity period greater than 50 years and their total
value may not exceed an amount equal to five percent of the
assessed value of all property listed for taxes in the said
municipality.52
Bonds may be issued by resolution of the governing body of
a municipality.53 Such bonds may not have a maximum maturity
period exceeding 40 years.51* If the resolution so provides,
the bonds will be revenue bonds.55 However, if nothing is
stated in the resolution concerning the type of bond issued,
it is statutorily presumed that they are general obligation
bonds.55 The maximum maturity period of the bonds is also
limited to 40 years57 and since this provision was enacted
subsequent to the previously mentioned 50 year maturity
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period, the 40 year period should prevail as the maximum
maturity period.
Sanitary districts are authorized to issue general obligation
bonds subject to prior approval by the governing body or
bodies of the affected municipality or municipalities.58
Such bonds are nontaxable, may not have a value which exceeds
an amount equal to 25 percent of the assessed value of all
property listed for taxes in a district and may not have a
maximum maturity period exceeding 40 years.
The other two management agencies under discussion (sewer
authorities and the MES) are not authorized to issue general
obligation bonds.
2.4.2 Special funds and revenue funding.
For a discussion of the revenue bonding powers of municipalities,
see paragraph 2.4.1.
The Boards of sewer authorities59 and the Board of Directors
of the MES60 are authorized to issue revenue bonds by resolu-
tion. Such bonds may not have a maximum maturity period
exceeding 40 years. The consent of the constituent munici-
palities of the sewer authority is not required by statute.
No consent of any state department or agency is required prior
to the issuance of such bonds by the MES.61
In Allegheny and Dorchester counties and in Middletown in
Fredrick County, the questions of issuing such bonds (by the
sewer authority) must first be submitted to the voters within
the geographical limits of the said authority.62
Sanitary districts have no revenue bonding authority, although
they may retire general obligation bonds from revenues.
2.4.3 Other Methods of Financing.
Sewer authorities are authorized to accept temporary loan from
municipalities.63 Such loans must be repaid from proceeds of the
first bond issue.
Sanitary districts are authorized to accept temporary loans,
not to exceed $20,000.61* These loans must be repaid, without
interest, before construction starts. In addition, the governing
body or bodies of the county or counties in which a sanitary
district lies may advance up to $20,000 to such district.65
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This advance must also be repaid before construction begins.
Finally, sanitary districts are authorized to tax property
located in their districts in order to pay principal and
interest on bonds if funds, from all sources, are insufficient
to pay off the principal and interest.66
2.5 Authority to Assure in Implementation of Its Waste
Treatment Management Plan That Each Participating
Community Pay Its Prooortionate Share of Treatment
Costs. [§208(c) (2) (G~) ] .
Since the governing bodies of two or more municipalities are
authorized to enter into contracts and agreements concerning
the forming of a sewer authority, including the ". . .financing
of sewerage facilities,"67 the payment formula agreed upon by
the parties should be acceptable as representing each party's
appropriate share.
As noted in paragraph 2.3.1, sewer authorities and sanitary
districts can assure, through a proper charging basis, that
each category of user pay its appropriate share. This power
should also be sufficient to assure that each participating
community pay its appropriate share.
The formula for assessing charges by the MES as noted in para-
graph 2.3.1, also applies to municipalities. This alone should
satisfy the requirement of the Act. This formula is strengthened
by a provision which states that if a municipality does not pay
its bill within 60 days of the due date, then several "state
tax funds, normally allocated to such municipality can be
directed and paid directly to the MES to the extent necessary
to extinguish the debt.68
2.6 Authority to Refuse to Receive Any Wastes from Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§ 20 8 (c) (2 ) (H) ] .
None of the management agencies are explicitly empowered to
refuse wastes from a municipality.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
The governing body of a municipality may require that no
sewage drainage work ("hook-up") be done on any private prop-
erty without the receipt of a permit from that body.69 However,
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it would be highly unlikely that a municipality would deny
a hook-up for the reason that the municipality itself is not
in compliance with an areawide plan unless there is an outside
force imposing such restriction.
It is provided that "before any plumbing, waterworks or sewer
construction is done in any building or upon any private prop-
erty within any sanitary district, the person, firm, or cor-
poration doing the same shall first obtain a permit from the
Commission."70 Whether a denial of such a permit could be
based upon the failure of the municipality (in which the user
resides) to comply with an areawide plan is unclear and un-
decided.
The two other management agencies (sewer authorities and the
MES) are not explicitly authorized to deny hook-ups. It might
be argued that such a power could be implied from the provisions
that sewer authorities and, in some instances, the MES, act in
a municipality's place by managing sewer facilities for that
municipality and from the statutory provision that authorizes
municipalities to deny hook-ups.71 Even if such an implication
is permissible, it would still have to be argued that a permit
denial could be based on a municipality's failure to comply
with an areawide plan. Such an argument becomes theoretically
strained since, after sewer authorities or the MES have taken
the place of the municipality, to deny further permits within
a constituent municipality would be tantamount to denying a
permit for one's own failure to comply with an areawide plan.
It would appear that enforcement agencies rather than treatment
agencies are the appropriate agencies to effect a "moratorium"
on new or additional "hook-ups." Thus, the DWR with its permit
granting authority and other powers could impose a "moratorium."
on new or additional "hook-ups."
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply with
the Areawide Plan.
If users do "hook-up" without a permit they are subject to fine
and imprisonment.72 If it is successfully argued that sewer
authorities and the MES possess the permit issuing authority
vested in municipalities,73 the same penalties should follow
if a user "hooks-up" without an authority or MES permit.
Criminal penalties and fines are also provided for a user
"hooking-up" without a permit issued by a sanitary district.74
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There appears to be no statutory basis for assessing penalties
or surcharges against municipalities or subdivisions which
do not comply with the areawide plan. Where agencies are
authorized to charge on the basis of cost of treatment, sur-
charges could be imposed to the extent that non-compliance
increases the cost of treatment. This could apply to com-
munities as well as individual users following the reasoning
set forth in paragraph 2.5.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I) ] .
The governing body of a municipality is authorized to enter
into contracts for the treatment of industrial wastes.75
Such contract-making ability should enable the municipality
to place conditions upon the acceptance of such wastes through
pretreatment and effluent requirements.
Sewer authorities are authorized to compel industries from
which it receives wastes "to treat such sewage or waste as shall
be specified by the authority before discharging such sewage
or waste into any sewerage system owned, operated or maintained
by such authority."76
Sanitary districts may receive and treat industrial wastes.77
Business entities must obtain a permit before they are allowed
to use a district's sewer facilities.78 In order to obtain
and keep such a permit, the Commission must certify that there
is (among other things) no "improper use of sewers." While it
may be debatable whether this provision empowers Commissions
to require pretreatment of industrial wastes, it would appear
broad enough considering the fact that a treatment agency must
be able to control the character of the effluent received
if it is to protect its operation.
The MES is responsible for the purification of sewage from
municipalities and persons79 (with "persons" defined to in-
clude both individuals and business entities).80 The MES
"may exclude or require preconditioning of any waste that
might otherwise be harmful to structures or purification
processes or endanger the health or safety of workers."81
3.0 S UMMARY
Of the four management agencies -- municipalities , sewer
authorities, sanitary districts and the MES the MES ap-
pears to be type of agency envisioned by the Act. The other
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agencies are, however, in a position to comply with the Act
with only minor revisions. The influence of the MES on the
other management agencies can be quite strong. As an example,
if the MES is called on to provide the management and treat-
ment functions in an area, it can influence land use decisions
through its planning authority as to location of the treatment
works. The MES can also influence management agencies by
designing and recommending construction of treatment works
for the other agencies to implement.
3.1 Deficiencies.
Municipalities might be well advised to have broader grant
language .
The "front footage" charge basis must be changed in order to
be eligible for a grant.
The "front footage" charge will prevent proper recovery from
industrial users.
4.0 BIBLIOGRAPHY
1. Haskell, E., Managing The Environment; Nine States Look
for New Answers.
2. Jaffe , L. , and L. Tribe, Environmental Protection (1971).
3. McKewen, T. D., Wholesaling Environmental Services, 6
Environmental Science and Technology 324 (April 1972).
FOOTNOTES
1. Md. Ann. Code art. 43, §388(1971).
2. Md. Ann. Code art. 43, §389(1971).
3. Md. Ann. Code art. 43, §397(1971).
4. Md. Ann. Code art. 43, §§3393, 397(1971).
5. Md. Ann. Code art. 43, §391(1971).
6. Md. Ann. Code art. 33B, §8(1971).
7. Md. Ann. Code art. 41, § 206(d) (1971) .
8. Md. Ann. Code art. 41, §206(A), (B)(1971).
9. Md. Ann. Code art. 96A, §25 (i) (Supp. 1972).
10. Md. Ann. Code art. 96A, §25(1) (Supp. 1972).
11. Md. Ann. Code art. 96A, §26(a)(Supp. 1972).
12. Md. Ann. Code art. 96A, §28(a) (1) (Supp. 1972).
13. 'id. Ann. Code art. 33B, §9 (Supp. 1972).
- 139 -
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14.
15.
16.
17.
18.
19.
20.
Md.
Md.
Md.
Md.
Md.
Md.
"Mun
Ann .
Ann .
Ann .
Ann.
Ann .
Ann .
icip;
Code
Code
Code
Code
Code
Code
ality
art.
art.
art .
art.
art.
art.
" is
96A,
96A,
96A,
33B,
33B,
33B,
defin
Facilities Bond Act as
the laws of this state
21.
22.
23.
24.
25 .
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
See note 20 .
Md. Ann. Code art.
Md. Ann. Code art.
Sewer authorities ,
districts, Md. Ann
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Municipalities , Md
43, §
43, §
43, §
43, §
43, §
43, §
43, §
Md. A
. Code
43, §
43, §
33B,
33B,
43, §
43, §
43, §
33B,
. Ann .
authorities, Md. Ann. Co
40.
41.
42 .
43.
44.
45 .
46.
47.
48.
49.
50.
51.
52 .
53.
54.
55 .
56.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Md. Ann. Code art.
Id.
Md. Ann. Code art.
Md. Ann. Code art.
43, §
43, §
33B,
33B,
33B,
43, §
43, §
43, §
33B,
43, §
43, §
43, §
43, §
43, §
43, §
43, §
§28A(a) (Supp. 1972) .
§28A(b) (Supp. 1972) .
§25 (b) (Supp. 1972) .
§3(a) (1971) .
§5 (d) (Supp. 1972) .
§6 (Supp. 1972) .
:d for the purposes of the Sanitary
'any city or town incorporated under
' Md. Ann. Code art. 43, §428(1971).
409(1971) .
446 (1971) .
§646(1971).
451, 651(1971
451, 651(1971
respectively.
respectively.
§430(1971).
§428(a) (1971) .
n. Code art. 43, §450; sanitary
art. 43, §650(1971).
§§445 (1) , 656 (1) (1971) .
445(g) , 645 (g) (1971) .
4(g) (1971) .
3(j) (1971) .
§430(g) (1971) .
450 (p) (1971) .
§650 (14) (1971) .
4(p) (1971) .
Code art. 43, §416(1971); sewer
art. 43,
§657 (1971) .
663 (1971).
§7(1971, Supp.
455 (1971!
1972)
§ 3 (g) (Supp. 1972) .
§ 3 (k) (Supp. 1972) .
§413 (Supp. 1972).
§ 455 (1971) .
§ 663 (1971) .
§7(1971, Supp. 1972)
§ 430 (b) (1971) .
413(1971).
§§ 455 , 657 (1971) .
§ 411(1971) .
§ 431 (1971) .
435(a)(1971).
§ 435 (b) (1971).
- 140 -
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57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
80-
81.
Md.
Md.
Md.
Md.
Md.
Md.
Md.
Md.
Md.
Md.
Md.
Md.
Md.
Md.
Md.
Md.
Id.
Md.
Md.
Md.
Md.
Md.
Md.
Md.
Md.
Ann.
Ann .
Ann .
Ann .
Ann .
Ann .
Ann .
Ann .
Ann .
Ann .
Ann.
Ann.
Ann .
Ann .
Ann .
Ann .
Ann .
Ann .
Ann .
Ann .
Ann .
Ann .
Ann .
Ann .
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
art.
art.
art.
art.
art.
art.
art.
art.
art.
art.
art.
art .
art.
art.
art.
art.
art.
art.
art.
art.
art.
art.
art.
art.
43,
43,
43,
33B
33B
43,
43,
43,
43,
43,
43,
33B
43,
43,
43,
43,
43,
43,
43,
43,
43,
33B
33B
33B
§
§
§
r
r
§
§
§
§
§
§
f
§
§
§
§
§
§
§
§
§
r
i
i
431 (1971) .
654(1971).
452(a) (1971) .
§11(Supp. 1972).
§12 (e) (Supp. 1972)
452 (b) (1971) .
463(2) (d) (1971) .
650 (16) (1971) .
652 (c) (Supp. 1972)
654 (d) (1971) .
439 (1971) .
§7(b) (1971) .
417 (1971) .
660 (1971) .
417 (1971) .
417 (1971) .
§669(Supp. 1972).
§430(1971).
§455 (c) (1971) .
§645(g) (1971) .
§660 (1971) .
§5(k) (1971) .
§3(g) (Supp. 1972) .
§5 (k) (1971) .
- 141 -r
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT
PENNSYLVANIA REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Regulatory and enforcement powers relating to water pollution
control in the state of Pennsylvania reside within the Depart-
ment of Environmental Resources.
The establishment of the department was largely accomplished
by reorganization; the department now possesses powers formerly
belonging to such diverse agencies as the Department of Forests
and Waters,1 the Department of Mines and Mineral Industries,2
the Oil and Gas Inspectors' Examining Board3 and the Depart-
ment of Health.1*
With regard to water pollution control, the new department is
empowered to: (1) adopt standards for construction and instal-
lation of sewage treatment plants,5 (2) require submission of
sewer system and waste treatment plans, which are then approved
or disapproved;6 (3) issue permits which are required for con-
struction, modification, or installation of such plants;7
(4) order a municipality to acquire, construct, repair, alter,
complete, extend, or operate a sewer system and/or treatment
facility and order municipalities to negotiate for joint systems
or facilities;8 (5) issue or deny permits to discharge sewage
or industrial wastes;9 (6) disburse state and federal grants
subject to requirements which it lays down;10 (7) conduct inves-
tigations11 and require submission of information as to character
and rate of flow of industrial wastes;12 (8) review and pass
upon applications for certification of sewage treatment plant
operators;13 (9) develop and implement comprehensive waste manage-
ment and other water quality plans; ! "* and (10) revoke permits
and issue pollution abatement orders.15
The management portion of Pennsylvania's water pollution control
programs resides within townships, municipalities, Municipal
Authorities and counties. In accordance with the statutory
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set-up, four classifications of cities will be analyzed:
(1) cities of the first class; (2) cities of the second class
A; (3) cities of the second class; and (4) cities of the third
class (classification based on size and, in some cases, ordi-
nances).16 Other areas of interest are boroughs, incorporated
towns and townships of the first and second class (such classi-
fication, again, based on population).1' In addition, general
municipal law will be referred to since such provisions apply
to all of the above listed entities. Municipal Authorities
may be organized by any municipality singly or two or more
municipalities jointly to carry out certain projects among
which are the construction and operation of sewage treatment
works.19 In this context municipality means any county, city,
town, borough or township.20
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1.2 Schematic Diagram of Existing Agencies
Department of Environmental Resources
Deputy for Environmental Protection
and Regulation
Assoc. Deputy for Air, Water and
Community Protection
Bureau of Water Quality Management
Division of Water Quality
Division of Dams and
Encroachments
Division of Water Supply
and Sewerage
Division of Industrial Wastes
Division of Mine Drainage
and Erosion
Division of Management
Services
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND
SELECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and
Existing Works as Required by Any Areawide Plan. [§208
(c) (2) (C)] .
First class cities are authorized to carry out the construc-
tion . . . maintenance, operation and repair of ... [sew-
erage] structures.21 Boroughs are given similar powers.22
Cities of the second class, second class A and third class
have specific authority to construct treatment works.2 3 In-
corporated towns lack specific authority to construct such
facilities; however, this authority might be implied from a
statutory provision which grants incorporated towns which
have constructed treatment works authority to charge for its
use.21* Cities of the second class, second class A, and third
class, as well as incorporated towns lack specific authority
to operate and maintain treatment works; however such authority
might be implied from the statute granting these bodies author-
ity to charge users of their respective sewage systems so as
to meet operation and maintenance expenses.25 Townships of
the first2 6 and second2 7 class are specifically empowered to
enter into contracts providing for the construction, mainte-
nance and operation of sewer treatment works. Municipal
Authorities have express authority to construct, operate and
maintain treatment works.28
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c)(2)(D)].
None of the municipalities under consideration in this report
possess specific statutory authority to accept and utilize
grants. The power may be one reserved to municipalities by
the home rule provisions of the state constitution and also
may be implied from the State Department of Environmental
Resources' power to disburse federal and state grants to munic-
ipalities.29 From this it can be implied that municipalities
can receive and use such grants.
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The Act requires that the federal grants be used only for the
purposes of the specific grant. The power of the Department
of Natural Resources to "disburse" federal grants should, there-
fore, be administrative only and not construed as a power to
divert the funds. In addition, the terms of the grant will
provide that the funds cannot be diverted, and, the state in
approving the grant application as complying with state law
is bound thereby.
Municipal Authorities have express authority to accept grants
from the federal government, the Commonwealth of Pennsylvania
and any municipality, school district, corporation or other
Municipal Authority.30
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208(c)(2)(E)].
Municipalities under consideration and Municipal Authorities
are empowered to impose and collect an annual charge for sew-
age treatment services.3!
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b)(1)(A)].
Since municipalities may assess annual charges on the basis
of the cost attributable to the treatment of each user's
waste,32 they should have no trouble complying with the re-
quirement of charging each category of user its proportionate
share of treatment costs.
Charges imposed by Municipal Authorities must be at reason-
able and uniform rates which are to be determined exclusively
by the Authority.33 This provision has been construed by a
lower court so as to allow rates to be different for various
classifications of users, so long as the classifications are
reasonable and the rates are uniform within a given classi-
fication.34 So construed this provison should encompass
authority to charge on the basis of characteristics of ef-
fluent.
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2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [ §204 (b) (1) (B)] .
Municipalities are authorized to impose service charges to
the extent necessary to cover both the operation and mainte-
nance of the treatment works and amortization of any indebted-
ness which may be incurred in the construction or acquisition
of such works.35 Since this provision36 also states that
the charges shall not be limited to merely covering those
above stated expenses,37 municipalities should be sufficiently
authorized to charge industry as required.
Municipal Authorities do not have express authority to recover
these costs from industry. Such authority may be implied from
the general authority to impose charges since these charges
can be used to pay construction costs38 and the rates can be
different for different classifications of users.39
As to both municipalities and Municipal Authorities, the au-
thority for industrial cost recovery can be implied from their
authority to contract with industry for treatment.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)] .
As v/ill be noted hereinafter, all of the municipalities under
consideration have bonding powers of some type.
2.4.1 General Obligation Funding.
All municipalities may issue general obligation bonds.140 If
issued by the local government authorities, without assent of
the electors, they may not cause the municipal debt to exceed
250% of the borrowing base of the municipality.1*1 However,
if a majority of the electors do assent, the debt limitation
does not apply.1*2 In addition, general obligation bonds must
mature within 40 years, or a period not to exceed the estimated
usefulness of such property or improvement for which such bonds
are issued.k 3
Municipal authorities may issue bonds'*1* and pledge the full
faith and credit of the authority to secure the bond issue;1*5
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however this pledge may not include the full faith and credit
of the Commonwealth or any political subdivision thereof.1*6
2.4.2 Special Funds and Revenue Funding.
All local government units are authorized to issue revenue
bonds.1*7 When such bonds are issued their maturity dates may
not exceed 40 years or the estimated period of usefulness of
the property or improvement for which such bonds shall be
issued, whichever is earlier.1*8
Municipal Authorities may issue revenue bonds.1*9
2.4.3 Other Methods of Financing.
Municipalities can also issue tax anticipation notes,50 as
well as receive state funds from the Department of Environ-
mental Resources.5:
Municipal Authorities may receive funds from the municipalities
the authority serves.52
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan that Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c) (2) (G)] .
First class cities are empowered to divide a territory which
will be served by a sewer system into sewer districts and,
once such divisions have been made, requires that each dis-
trict pay its proportionate share of the construction cost
for such a system.53 However, no provision specifically re-
quires that each district (or community) pay its proportionate
share of treatment costs. But such power may reasonably be
implied from the authority to charge individual users propor-
tionate rates.5^
Since municipal authorities may charge for different cata-
gories of users [see §2.3.1] they have implicit authority to
assure that each participating community pay its fair share.
2.6 Authority to Refuse to Receive Any Wastes from Any Munic-
ipality or Subdivision Thereof, Which Does Not Comply
With Any Provisions of an Approved Plan Under §202 Ap-
plicable to Such Area. [ §208 (c) (2) (H)] .
No provision specifically authorizes municipalities or
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Municipal Authorities to refuse a subdivision's or municipal-
ity's wastes. The Department of Environmental Resources does
have authority in this regard, however, due to its permit issu-
ance powers and its powers to protect the state's waters as
described in Section 1.1.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
To a certain extent, municipalities possess the power to em-
ploy prospective measures to refuse the wastes of a subdivision
or another municipality. All municipalities are authorized
"to enact and enforce suitable ordinances to govern and regu-
late the construction [and] alteration ... of all buildings
. . . in order to promote the public health . . . ,"55 While
no court appears to have passed on the issue, it might be
argued that these provisions would enable a municipality to
halt construction on new structures if the waste emitted there-
from would overburden the available treatment facilities.
Municipal authorities have authority "to determine by itself
exclusively the services and improvements required to provide
adequate, safe and reasonable service, including extensions
thereof in the area served."56 Such authority might encompass
the power to deny new hook-ups to municipalities in violation
of the areawide agreement.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
No management agency is expressly vested with any of these
powers.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c)(2)(I)].
There are no express statutory provisions which enable a munic-
ipality to contract with industry for its services. Accordingly,
it would be difficult to place conditions on an industry's use
of such services by using the contract method. The same objec-
tive, however, may be obtained on the state level. No industry
may discharge its wastes into a municipal sewer system until
it has complied with the rules and regulations of the Depart-
ment of Environmental Resources.57
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Municipal Authorities have express authority to treat indus-
trial wastes.58 There is no provision authorizing Authorities
to establish pretreatment standards or ro refuse industrial
wastes; however, such authority may be implied from the author-
ity to accept such wastes. Furthermore, pretreatment of in-
dustrial wastes may be necessary according to the provisions
of an industrial waste discharge permit.59
3.0 SUMMARY
Although Pennsylvania generally complies with the requirements
of the Act, some revision of the laws concerning waste treat-
ment management agencies would be helpful. The management
agencies are lacking in one or more of the powers required
under the Act, although state level agencies may supply some
of these powers. The management-related powers of the munic-
ipalities should be coordinated and compiled in one statutory
provision to avoid gaps and overlaps. Although the treatment
agencies are local in scope, the Department of Environmental
Resources by virtue of its powers to issue permits and to
provide comprehensive waste planning can require local agencies
to join in areawide plans and treatment.
3.1 Deficiencies
The following specific deficiencies exist in Pennsylvania,
but these are currently offset by implied powers or the state
level agencies providing such authority:
1. Several agencies lack express authority to operate and
construct treatment facilities;
2. All municipal agencies lack express authority to accept
and utilize grants;
3. There is no express power to recover industries' construc-
tion costs;
4. Municipal agencies lack express power to enforce a plan by
"cutting off" municipalities or denying new "hook-ups"
does not exist;
5. The municipal agencies lack express authority to accept
industrial wastes and require pretreatment for them.
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4.0 BIBLIOGRAPHY
1. Ackerman and Sawyer, The Uncertain Search for Environ-
mental Policy: Scientific Factfinding and Rational De-
cisionmaking Along the Delaware River, 120 Penn. L. Rev.
419.
2. Bruch, George D., Environmental Pollution Control Laws
in Pennsylvania: A Survey and Analysis, 16 Vill. L. Rev.
815 (1971).
3. Comment, Statutory Pollution Control in Pennsylvania, 16
Vill. L. Rev. 851 (1971) .
4.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
Note, Pol
Law
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
, 34 U
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
(Supp. 19
24.
25.
Pa.
Pa.
Stat.
Stat.
lution Control Under the Pennsylvania C
. Pitt
Ann .
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann .
Ann .
Ann .
Ann.
Ann.
Ann .
Ann.
Ann.
Ann.
Ann.
Ann .
Ann.
Ann.
Ann .
Ann.
Ann .
73) .
Ann .
Ann.
,
71
71
71
71
35
35
35
35
35
35
35
35
63
35
35
53
53
53
53
53
53
53
53
53
53
L. Rev. 115 (1972) .
FOOTNOTES
§510-1 (1) (Supp. 1973) .
§510-1 (2) (Supp. 1973) .
§510-1(3) (Supp. 1973) .
§510-1(7) (Supp. 1973).
§750.3 (Supp. 1972) .
§§750.5, 691.308 (Supp. 1973).
§750.7 (Supp. 1973) .
§691.203 (Supp. 1973) .
§691.202, .307 (Supp. 1973).
§750-3 (Supp. 1973) .
§691.305 (1964) .
§691.303 (1964) .
§1004 (Supp. 1973) .
§691. 5(b) (2) (Supp. 1973) .
§691.610 (Supp. 1973).
§101 (Supp. 1973).
§§65201 (1957) .
§303 (1957) .
§306 (A) (Supp. 1973) .
§302 (1957) .
§12263 (1957) .
§47001, 4704C (C) (2) (1966) .
§§22561 and 3^206, (1957); 53
§2231 (Supp. 1973) .
§2232 (Supp. 1073) .
5102
- 152 -
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26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Stat
Stat
Stat
Stat
Stat
Stat
Stat
Stat
Ğ
.
.
Vener v.
Tp.
Pa.
Pa.
It
, 5 Pa
Stat
Stat
might
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
53
53
53
35
53
53
53
53
Municipal
§57403
§66504
§306(A)
§750.3
§306 CB)
(1957).
C1957) .
(Supp.
(Supp.
(k) (19
197
3)
.
1973) ;
57) .
Pa. Con. Art. 9 §2.
§2231 (Supp. 1973) .
§2232 (
Supp. 1973) .
§306 (B) (h) (Supp.
Sewer
19
73) .
and Water Authority of Cranberry
. Commonwealth 123, 289
Ann.
Ann.
53
53
be argued
provision
share of
be
A2d
. 506, 1972.
§2232 (Supp. 1972) .
§2232 (Supp. 1972) .
that,
, municipalities
without
could
the
not
construction costs, since t
limited to
covering operating
(which the federal
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
Pa.
See
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Id.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Pa.
Stat
notes
Stat
Stat
Stat
Stat
Stat
Stat
Stat
Stat
Stat
Stat
Stat
Stat
Stat
See 2.3.
Pa.
Pa.
Pa.
Pa.
Pa.
Stat
Stat
Stat
Stat
Stat
.
.
*
.
.
1
.
.
Ann.
53
share
§306(B)
is not)
it
shall not be limited"
charge for the federal
?.e
charges would then
expenses and indebtedness
.
(h) (Supp.
19
7
3) .
33 and 34 and associated text.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann .
Ann.
Ann.
Ann .
Ann.
Ann.
Ann.
Ann.
Text
Ann.
Ann.
Ann.
Ann.
Ann.
53
53
53
53
53
53
53
53
53
53
35
53
53
§11-105
§11-202
§11-201
§11-602
§306 (B)
§307(B)
§11-105
§11-602
§306(B)
§11-501
§750.3
§2295 (
§14491
(Supp.
(Supp.
(Supp.
(Supp.
197
197
3)
3)
.
.
1973) .
1973) .
(i) (Supp.
(1957)
(Supp.
(Supp.
19
73) .
1973) .
197
(i) (Supp.
(Supp.
(Supp .
1957) .
(1957) .
197
1973
3)
19
3)
) .
,
73) ; 53 §307(C) (1957)
.
supra.
53
53
35
53
35
§§4101,
§306(B)
§691.30
§306(A)
39130
(Supp.
(h) (Supp.
7 (Supp
(Supp.
§691.307 (Supp
. 19
19
7
1973) .
3) .
73) .
1973) .
. 19
73
)
.
- 153 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
VIRGINIA REPORT
(1973)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Virginia's water pollution control laws were revised in 1973.
The new State Water Resources Law was designed to protect clean
waters, prevent new pollution and reduce existing pollution.1
Administration and supervision of the new laws are delegated to
the Department of Conservation, Development and Natural Resources
and the Water Resources Board.2
Duties of the Water Resources Board include:
1. Establishment of water quality standards;
2. Adoption of regulations as it deems necessary to enforce
the general water quality programs of Virginia;
3. Establishment of policies and programs for effective area-
wide water quality management;
4. Establishment of requirements pertaining to treatment of
sewage and industrial wastes.3
The Commissioner of the Department of Conservation, Development
and Natural Resources has authority:
1. To exercise general supervision over water quality in the
state and enforce all laws pertaining thereto;
2. To conduct studies, investigations and research in order
to discover methods of maintaining water quality;
3. To issue, revoke or amend certificates for the discharge
of sewage and industrial wastes;
4. To make inspections to insure compliance with rulings,
certificates and orders;
5. To issue special orders to owners to (a) cease and desist
from polluting, (b) to construct approved facilities,
(c) to comply with the terms of certificates, and (d) to
comply with water quality standards and policies;
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6. To administer programs of financial assistance for planning,
constructing and operating water quality control facilities ."*
The new law also provides for strict regulation of industrial
wastes and sewage discharges. All industrial establishments
must provide facilities approved by the Commissioner for treatment
of industrial wastes.5 The Commissioner reviews applications
for discharge permits and either grants such certificates or
notifies the owner as to corrective measures required.6 Similarly,
all sewage systems and treatment works are under the Commis-
sioner's supervision.7 Owners of sewage treatment works are re-
quired to furnish the Commissioner information regarding quanti-
ties and character of sewage discharged and other pertinent
information. Plans and specifications for all treatment works
serving over 400 persons must be approved by the Commissioner
before such system can be operated, constructed or expanded.8
Enforcement of these laws is obtainable by injunction as well
as fines up to $5000 per day.9 The treatment management portion
of Virginia's water pollution control program resides in sewer
authorities10 and sanitary districts.
Upon petition of 50 qualified voters of the proposed sanitary
district, any circuit court of a county may create such a
district.12 It would appear that the boundaries of a sanitary
district may not include more than one county.
1 3
The governing body of a political subdivision may, by ordinance
or resolution create a sewer authority, and similarly, the
governing bodies of two or more political subdivisions may create
a sewer authority through concurrent ordinances or resolutions.14
After enacting such ordinance or resolution, the governing body
must hold a hearing15 and if, at the hearing, there is substantial
opposition to the creation of the authority, a referendum must
be held.16
1.2 Schematic Diagram of Existing Agencies
Virginia Water Pollution Control Administration
Department of Conservation,
Development and Natural Resources
Water Resources
Board
Commissioner
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND SELECTED
RELATED SECTIONS OF THE ACT.
The analysis of existing treatment agencies covers those two
agencies noted in paragraph 1.1: sewer authorities and sani-
tary districts.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c)(2)(C)].
Sewer authorities are empowered to acquire, purchase, construct,
operate and maintain sewage disposal systems.17 Such systems,
by definition, include works . . . installed for the purpose
of treating sewage and industrial wastes.18 Sanitary districts
are authorized to construct, operate and maintain sewerage
systems.19 While such systems are not defined, the terminology
used should be broad enough to encompass treatment facilities.
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c)(2)(D)].
Only sanitary districts are specifically authorized to receive
and utilize grants.2° However, as noted in paragraph 1.1, the
Department of Conservation, Development and Natural Resources
administers financial assistance programs.21 It might be in-
ferred from this that these two agencies are able to receive
funds. From the working of the Department's authority on this
point, it may also be inferred that they perform no more than
an administrative function in doling out the grants; it (the
Department) is not authorized to withhold a grant from the
designated agency. Thus, the requirements of paragraph 2.2
should be satisfied.
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§ 208(c) (2) (E)] .
As will be noted in the following paragraphs, both management
agencies may charg< for the sewer services they provide.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency. [§204(b)(1)(A)].
Sewer authorities are empowered to charge for services furnished
- 157 -
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by or for the use of any sewage disposal facility.22 The
charges must be sufficient to (1) pay the cost of operating
and maintaining the sewer system, (2) pay the principal and
interest on revenue bonds, and (3) provide a margin of safety
for making such payments. Such charges may be based upon
any . . . factor affecting the use of the facilities furnished.2 **
These guidelines for charging should insure that each user will
pay his appropriate share of operation and maintenance costs.
In contrast to the complete guidelines set forth above, sanitary
districts are simply authorized to fix and prescribe the rates
of charge for the use of any such system or systems, and tp_
provide for the collection of such charges.2^In the absence
of any judicially narrowed interpretation, it is that the general
charging powers of sanitary districts will enable them to comply
with the requirements of this paragraph.
2.3.2 Full Recovery Will Be Had From the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works Rea-
sonably Attributable to Treatment of Such Industrial
Wastes. [§204 (b) (1) (B) ] .
Sewer authorities may charge manufacturing and industrial plants
for sewer services provided.2BAs noted in paragraph 2.3.1,
such charges must be sufficient to cover, inter alia, principal
and interest on revenue bonds.27 Thus, it may be that authorities
cannot charge industries for the federal portion (i.e., the por-
tion not covered by revenue bonding) of construction costs.
However, it is to be noted that authorities are required to charge
enough so as to cover operation and maintenance costs and the
principal and interest on bonds; this fact does not necessarily
imply that authorities would not be permitted to cover other
sewer system costs such as the contractual obligation in the
federal grant requiring recovery from industrial users.
While sanitary districts are not specifically allowed to charge
for the treatment of industrial waste (or even to receive such
waste in the first place), the fact that districts are allowed
to charge for the use of any [sewer] systems28 and that users
are not statutorily classified should be sufficiently broad
to authorize such charges. Because of the very broad charging
powers conferred upon districts,29 the requirement of this
paragraph should be satisfied.
- 158 -
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2.4 Authority to Incur Short- and Long-Term Indebtedness.
[§208(c) (2) (F)] .
As will be noted below, both management agencies have bonding
powers. While there is no express authority to incur short-
term indebtedness, it can be implied from the bonding authori-
ty that different types of short-term indebtedness may be
incurred.
2.4.1 General Obligation Funding.
The governing body of any county in which a sanitary district
lies may issue general obligation bonds to an amount in the
aggregate not exceeding 18 percent of the assessed value of
all real estate in the district subject to local taxation.30
Such bonds must mature within 34 years of their issuance.31
The issuance of such bonds must be approved by a majority of
qualified voters in a sanitary district who vote on the ques-
tion.32 Such election may be ordered by a circuit court upon
petition by a majority of the county's governing body or by
50 qualified voters residing in the district.33
Sewer authorities have no express power to issue general
obligation bonds.
2.4.2 Special Funds and Revenue Funding.
If the order for election, noted in paragraph 2.4.1, states the
maximum amount of bonds to be issued and that such bonds are
to be issued for a specific undertaking from which the sani-
tary district may derive revenue, then the bonds of the sani-
tary district issued pursuant to the election are considered
revenue bonds.34 The 34 year maturity limitation still ap-
plies . 35
Sewer authorities are also authorized to provide by resolu-
tion for the issuance of revenue bonds.36 Such bonds must
mature within 40 years of their issuance.37
Neither sewer authorities nor sanitary districts are specifi-
cally required to obtain legislative approval before issuing
such bonds.
~.4.3 Other Methods of Financing.
The governing body of a county may also levy and collect an
annual tax upon all property subject to taxation in a sani-
tary district to pay, in whole or part, the cost of construct-
ing, operating and maintaining a sewer system.38
- 159 -
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2.5 Authority to Assure in Implementation of Its Waste
Treatment Management Plan That Each Participating
Community Pay Its Proportionate Share of Treatment
Costs. [§208 (c) (2) (G) ].
:io provisions concerning the management agencies touch on this
subject. However, as was noted in paragraph 2.3.1, sanitary
districts and sewer authorities can assure, through a proper
waste treatment charging basis, that each user pays his ap-
propriate share. This power should, in turn, be sufficient
to assure that each participating community pay its appropriate
share. In addition, when several municipalities join together
to form a common sewer authority as described in section 1.1,
the contractual agreement could reasonably provide for appor-
tionment of the costs between the municipalities.
2.6 Authority to Refuse to Receive Any Wastes From Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of An Approved Plan Under
§202 Applicable to Such Area. [§ 208 (c) (2) (H) ] .
Neither sanitary districts nor sewer authorities are empowered
to refuse municipal wastes.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
Both sanitary districts and sewer authorities are authorized
to enter into contracts with municipalities for provision of
sewer services.39 This could give the agencies sufficient
power to deny new "hook-ups" in non-complying municipalities
subject to the contract.
There are a few instances in Virginia where such a moratorium
has been upheld by the courts. Most recently, a 1973 Fairfax
County Circuit Court decision affirmed the county's right to
ban the issuance of any further building permits until new
sewage treatment facilities are constructed to handle the out-
put from new construction.40 In 1970, the predecessor of the
Department of Conservation, Development and Natural Resources,
the Water Control Board, issued a moratorium on additional
sewer connections for portions of Fairfax County, and was upheld
by the co irt. "* :
- 160 -
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2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply with
the Areawide Plan.
The same contractual power noted in paragraph 2.6.1 may also
enable such agencies to assess penalties against noncomplying
municipalities.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)].
Sanitary districts and sewer authorities are authorized to
enter contracts with corporations and businesses for the pur-
pose of furnishing sewer services.1+2 This contractual power
should permit the agencies to accept industrial wastes and
require pretreatment of them.
3.0 SUMMARY
From the standpoint of this survey, both management agencies
should be equally adaptable to the requirements of the Act.
3.1 Deficiencies
The major shortcoming of the Virginia provisions is that sewer
authorities are not specifically authorized to receive grants.
While this power might be inferred, the inclusion of such a
power in the provisions governing this agency would clear up
any uncertainties. The other two requirements that are not
expressly provided -- authority to refuse a noncomplying
municipality's waste and authority to insure that each community
pays its fair share -- are shortcomings common to management
agencies in many states. Express legislative authority in this
area would be helpful.
4.0 BIBLIOGRAPHY
1. Brion, Denis J., Virginia Natural Resources Law and the
New Virginia Wetlands Act, 30 Wash, and Lee L. Rev. 19 (1973)
2. Howard, A.E. Dick, State Constitutions and the Environment,
58 Vir. L. Rev. 193 (1972).
3. Miri, Joseph R., Some Problems of Water Resource Management
in Virginia: A Preliminary Examination, 13 Wm. and Mary
Law Rev. 388 (1971) .
- 161 -
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Notes, Private Remedies To Abate Water Pollution in Virginia
and New Theories in Environmental Law, 13 Wm. and Mary
L. Rev. 477 (1971).
Notes, Public Regulation of Water Quality in Virginia,
13 Wm. and Mary L. Rev. 424 (1971).
Walker and Cox, Virginia Water Policy: The Imprecise
Mandate, 14 Wm. and Mary L. Rev. 312 (1972).
FOOTNOTES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Va.
Va.
Va.
Va.
Va.
Id.
Va.
Va.
Va.
Va.
Va.
§21
Va.
Va.
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
- 113
Code
Code
districts
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26 .
27.
28.
29.
30.
31.
32 .
of
Va.
Va.
Va.
Va.
Va.
Va.
Va.
See
Va.
Id.
Id.
Va.
Va.
See
Va.
See
Va.
Va.
Va.
me r ge r
Code
Code
Code
Code
Code
Code
Code
text
Code
Code
Code
text
Code
text
Code
Code
Code
Ann. §62.1 - 44.45 et seq. (Supp. 1973).
Ann. §62.1 - 44.50(Supp. 1973).
Ann. §62.1 - 44.51(Supp. 1973).
Ann. §62.1 - 44.52(Supp. 1973).
Ann. §62.1 - 44.54(Supp. 1973).
Ann. §62.1 - 44.56(Supp. 1973).
Ann. §62.1 - 44.57(Supp. 1973).
Ann. §§62.1 - 44.61, -70(Supp. 1973).
Ann. §15.1 - 1239 ejt seq. (1973).
Ann. §21-113 et seq. (1960) , as amended, Va. Code Ann
(Supp. 1973) .
Ann. §21 - 113 (Supp. 1973).
Ann. §21 - 117(1960) provides that one or more
of one county may be merged; no mention is made
of districts situated in two or more counties.
Ann. §15 .1 - 1241 (1973) .
Ann. §15.1 - 1243 (1973) .
Ann. §15 .1 - 1244 (1973) .
Ann. §15.1 - 1250 (f) (1973) .
Ann. §15.1 - 1240 (j) (1973) .
Ann. §21 - 118 (1) (1960) .
Ann. §21 - 118 . 4 (c) (Supp . 1973).
accompanying note 4, supra.
Ann. §15.1 - 1260 (1973) .
Ann. §§21 - 118(5) (1960) , 21 - 118. 4 (e ) (Supp . 1973).
Ann. § 15.1 - 1260 (1973) .
accompanying note 23, supra.
Ann. §21 - 118(5) (1960K
accompanying note 25, supra.
Ann. §21 - 122 (Supp. 1973) .
Ann. § 21 - 130 (1960) .
Ann. § 21 - 125 (1960) .
- 162 -
-------
33. Va. Code Ann. §21 - 123(1960).
34. Va. Code Ann. §21 - 122(Supp. 1973).
35. Va. Code Ann. §21 - 130(1960).
36. Va. Code Ann. §15.1 - 1252(1973).
37. Id_.
38. Va. Code Ann. §21 - 118.6(Supp. 1973).
39. Va. Code Ann. §§21 - 118 (8) (1960); 15.1 - 1269 (b), (c)(1973)
40. See Environment Reporter, July 1973, p. 434.
41. Virginia Water Board v. Supervisors of Fairfax County,
Chancery no. 31671(July 28, 1970), 1 Environmental Reporter
Decisions 1482(1970).
42. Va. Code Ann. §§21 - 118 (8) (1960) ; 15.1 - 1250 (j) (1973) .
- 163 -
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PLEASE PETER TO FORMAT
BEFORE READING THIS REPORI
WEST VIRGINIA REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Regulatory and enforcement powers relating to water pollution
control in the state of West Virginia reside within the Water
Resources Board and the Department of Natural Resources (Division
of Water Resources).1 The State Department of Health (Division
of Sanitary Engineering) is involved to a lesser extent in pollu-
tion control.2
The Water Resources Board is empowered to: (1) establish rules
and regulations concerning the prevention, control and abate-
ment of water pollution and the imposition of water quality
standard;3 and (2) handle appeals from decisions and orders or
the Division of Water Resources.1*
The Division of Water Resources is empowered to: (1) conduct
investigations and inspections of public or private property;5
(2) require the submission of data, by any person or industry
which discharges sewage or waste, concerning the kind, charac-
teristics, amount and rate of flow of any discharge;^ (?) re-
ceive funds and grants and disburse them solely for the purpose
for which they were contributed;7 (4) develop programs for the
control and reduction of water pollution;8 (5) approve or dis-
approve applications for permits which are required in order to
(among other things); (a) discharge waste or sewage into state
waters, (b) construct, alter or operate a disposal system, (c)
increase the discharge of waste or sewage above that level already
allowed by permit, (d) open, operate or abandon a mine, quarry
or preparation plant, and (e) operate a disposal well for injec-
tion into the underground strata;9 and (6) issue pollution abate-
ment orders.l °
The Division of Sanitary Engineering is responsible for approving
or disapproving applications for permits which relate solely to
sewage (permits being required in order to conduct the activity
listed in part (5) of above paragraph).11
Public Service Districts (PSD) , Sanitary Districts (SD) , municipal
corporations and county courts are responsible for the treatment
- 165 -
/ . ^ .v .- * -
-------
management portion of West Virginia's water pollution control
programs.
PSD may be created by county courts.12 However, if a city,
incorporated town or other municipal corporation is to be in-
cluded within the boundaries, the governing body of such city,
etc., must first adopt a resolution consenting thereto.13
A PSD may lie in one or more counties.
Special elections are required for the creation, addition or
termination of sanitary districts. A SD may also lie in one or
more counties, the only requirement being that all of its terri-
tory is contiguous.15
1.2 Schematic Diagram of Existing Agencies
West Virginia Water Pollution Control Administration
Attorney General
(legal advisor)
Governor
Department
of Natural
Resources
Division of
Water
Resources
State Water
Resources
Board
Division of
Sanitary
Engineering
- 166 -
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND SELECTED
RELATED SECTIONS OF TdE ACT.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c) (2) (C)] .
County Courts and the governing boards of PSDs, municipalities
and SDs are authorized to construct, operate and maintain waste
treatment works.:6
2.2 Authority to Accept anc? Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes,
[§208(c) (2) (D)] .
PSDs, municipalities and SDs are authorized to accept grants
and procure loans or temporary advances from any federal agency
for the purpose of waste treatment plant construction.17 County
Courts are not specifically authorized to accept any govern-
mental grants.
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [ §208(c) (2) (E)].
Each of the four above mentioned entities are authorized to
assess charges for waste treatment services.18 Additionally,
sanitary districts may assess a direct annual tax for sewer
construction purposes.19
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204 (b) (1) (A)].
Charges may be determined on any basis or classification which
the governing board of a PSD may determine to be fair and reason-
able including the nature and extent of services provided. 2 °
Such language is sufficiently broad to permit compliance with
this paragraph. There is no statutory provision which indi-
cates how municipal corporations or sanitary districts are to
compute sewer charges for each user. County Courts, however,
are required to assess charges on the basis of front footage.21
Such a method of computation makes compliance with this para-
graph doubtful since front footage would not necessarily corre-
spond to the amount and degree of waste treated.
- 167 -
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2.3.2 Full Recovery Will Be Had From the Industrial
Users of the Waste Treatment Works of the Fed-
eral Portion of the Construction Costs of Treat-
ment Works Reasonably Attributable to Treatment
of Such Industrial Wastes. [ §204 (b) (1) (B)] .
PSDs are authorized to charce for the services and facilities
it furnishes.22 Charges murt be sufficient to cover operation
and maintenance costs, and principal and interest on revenue
bonds.23 However, charges are not specifically required to
cover construction costs. This poses a problem since this
paragraph requires that industries pay their share of the
federal portion of construction costs; the revenue bonds cov-
er only the state portion of. construction costs. Therefore,
there seems to be no express statutory authority whereby
PSDs can recoup this "federal portion." This same deficiency
exists for municipal corporations2 ** and sanitary districts.25
While counties may recover construction costs 'with service
charges,25 the charging basis (as noted in paragraph 2.3.1)
is inadequate for the purposes of this paragraph.2
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c)(2)(F)]. .
As will be noted in paragraphs 2.4.1 and 2.4.2, all management
agencies under consideration are authorized to incur some sort
of bonded indebtedness.
2.4.1 General Obligation 'Funding.
Municipalities and county courts may issue general obligation
bcr.J.o to finance treatment plant construction.28 A munici-
pality's debt may not exceed five percent of the taxable prop-
erty therein29 while the county court's ceiling is two and one-
half percent.30 In either case the bond issue has to be approved
by three-fifths of all votes cast in the required election.
SDs and PSDs have no authority to issue general obligation
bonds.
2.4.2 Special Funds and Revenue Funding.
PSDs may issue revenue bonds having a maximum maturity date of
40 years.32 No election or prior authorization is required for
issuing such bonds. Municipalities and SDs are given similar
powers except no limitation on the maturity period is placed
on the bonds which they issue.33 County courts have no author-
ity to issue revenue bonds.
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2.4.3 Other Methods of Financing.
As noted in paragraph 2.2, municipalities, PSDs and SDs are
authorized to accept loans (apparently long-term) and tempo-
rary advanced (to be paid out of the proceeds of a bond issu-
ance).31* In addition, all agencies are authorized to issue
general obligation and revenue bonds for the purpose of financ
ing remedial actions necessary to comply with orders of the
Division of Water Resources.3
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
No statutory provision specifically states that each partici-
pating community must contribute its proportionate share of
treatment costs. It is also to be noted that only PSDs are
empowered to charge each user his proportionate share36 (which,
in turn, might insure that each community would pay its pro-
portionate share) .
2.6 Authority to Refuse to Receive Any Wastes From Any Munic-
ipality or Subdivision Thereof, Which Does Not Comply
With Any Provisions of an Approved Plan Under §202
Applicable to Such Area. [§208(c) (2) (H) ] .
K.
None of the management agencies are specifically empowered
to refuse municipal waste once they have begun accepting them.
2.6.1 Authority to Deny New or Additional "Kook-Ups"
(Moratorium Effect) .
Although no management agency possesses "moratorium" powers,
the Division of Water Resources or the Division of Sanitary
Engineering, by denying a permit, can prevent sewage from
being discharged from any building or establishment.37 The
Division is required to issv^e a permit if none of its rules
or regulations will thereby be violated.38 It is conceivable
that such rules and regulations would contain water quality
standards. If this is the case, the Division could refuse
a permit if, had the permit been allowed, the discharger would
have caused water quality standards to be violated.
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2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
No provision authorized an\ state or local agency to assess
penalties against municipalities. However, municipalities
are subject to criminal penalties by the state for violation
of pollution control regulations.39
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
A PSD may require sewer line "hook-up" whenever the sewage
from a house, dwelling or building will flow by gravity to
a sewage line.40 If "buildings" were interpreted so as to
include industrial establishments, this provision would il-
lustrate that, at the very least, any PSD is empowered to
accept industrial wastes. However, such an interpretation
has yet to be made.
Municipalities and sanitary districts are authorized to enter
contracts with any industry for the purpose of providing waste
treatment services to such industries.41
In as much as "firms or corporations" are allowed to petition
for the construction of sewer lines which would abut their
property,42 it could be inferred that county courts may also
accept industrial wastes.
In none of the above mentioned sections is the management
agency specifically authorized to require pretreatment be-
fore it accepts the wastes. The contracts with industry
could, of course, contain these provisions. None of the
management agencies reviewed in paragraph 2.0 are authorized
to conduct investigations or inspections. On the other hand,
any person who is discharging wastes into state waters must
firsj: procure a permit from the Division of Water Resources.43
A detailed plan of maintenance and operation must be submitted
with the application for permit.44 However, this provision
also states that:
. . . where the activity is an integral part of a
secret operating process, the required information
shall be /limited solely to data which will show the
kind, characteristics, amount and rate of flow of
. . . industrial waste.45
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3 .0 SUMMARY
West Virginia can comply with many provisions of the Act.
However, the local treatment agencies lack express statutory
authority in the areas noted below. New legislation grant-
ing the necessary powers would cure these defects.
3.1 Deficiencies
The management agencies discussed in paragraph 2.0 lack the
following express statutory powers required by the federal
act:
1. Counties have no authority to accept grants for waste
treatment management;
2. PSDs, municipalities and sanitary districts have no way
of assessing charges sufficient to cover that part of
construction costs not covered by revenue bonds. (Thereby
preventing them from recovering the "federal share" of
construction costs.);
3. counties are only authorized to charge on a front footage
basis. This charging method does not adequately reflect
treatment costs;
4. except when required by remedial orders, agencies other
than PSDs and SDs are not authorized to issue general
obligation bonds, and counties may not issue revenue
bonds to finance sewage plant construction. However,
all of the management agencies have some sort of bond-
ing power;
5. none of the local management agencies possesses morator-
ium powers; but the Division of Water Resources or the
Division of Sanitary Engineering may have such authority;
6. none of the management agencies can compel industries to
pretreat their discharges except by contract or city ordi-
nance .
4.0 BIBLIOGRAPHY
None.
- 171 -
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FOOTNOTES
1.
2.
3.
4 .
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20 .
21.
22.
23.
24 .
25.
26.
27.
W. Va. Code §20-5A-1 et seq. (1970)
V, . Va. Code §20-5A-7.
W. Va. Code §20-5A-3a.
W. Va. Code §20-5A-15 (Supp. 1972).
W. Va. Code §20-5A-8.
W. Va. Code §20-5A-3 (a) (12 ) .
W. Va. Code §20-5A-4.
W. Va. Code 320-5A-3,
W. Va. Code §20-5A-5(7).
W. Va. Code 520-5A-10.
W. Va. Code §20-5A-7.
W. Va. Code §16-13A-2 (1972) .
Id.
W. Va. Code §16-13A-1.
W. Va. Code §16-12-13.
W. Va. Code §§7-l-3a, 16-13A-1, 16-13-1, 16-12-5,
K. Va. Code §16-13-24, 16-13-22a.
See paragraphs 2.3.1, 2.3.2, infra.
W. Va. Code §16-12-10.
K. Va. Code §16- 13 A- 9.
W. Va. Code §7-l-3a (1969).
W. Va. Code §16-13A-9.
Id.
W. Va. Code §16-13-16.
W. Va. Code §16-12-10.
W. Va. Code §7-l-3a.
Charges are based on a "front-footage" computation
respectively
instead
of the "costs of treatment works reasonably attributed to
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40 .
41.
42 .
43.
44 .
45.
treatment of such wastes . "
W. Va. Code §13-1-1.
W. Va. Code §13-1-3.
Id.
W. Va. Code §13-1-14.
\\. Va. Code §16-13A-13.
K. Va. Code §16-13-10.
See notes 17 and accompanying text, supra.
U. Va. Code §20-5A-12.
See text accompanying note 20, supra.
W. Va. Code § § 20-5A ( a) ( 1) , 20-5A-6.
\\. Va. Code 520-5A-7 (c) .
W. Va. Code §20-5A-19.
K. Va. Code 316-13A-9.
UT. Va. Code §16-13-22b.
I-.". Va. Code §7-l-3a.
W. Va. Code ;20-5A-6.
Id.
Id.
- 172 -
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REGION IV
-------
PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT
ALABAMA REPORT
(1971)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Control over water pollution in Alabama is vested in the Water
Improvement Commission.1 This agency was the subject of new leg-
islation in 1971 and presently has authority:
1. To conduct studies and investigations and develop programs
intended to result in the reduction of water pollution;
2. To require persons discharging pollutants to maintain records,
make reports, install monitoring equipment and sample pollu-
tion;
3. To establish standards of water quality;
4. To issue, revoke, modify or deny permits for the discharge
of wastes, and the operation of disposal systems;
5. And to enter into agreements with the federal government
or other states.2
Violation of water pollution control laws or any rules and
reaulations of the Commission can result in a civil penalty
up co $10,000 per day,3 civil damages resulting from the vio-
lator's actions" and additional amounts necessary to restock
the waters with fish and wildlife.5
The Commission is designated as the state water pollution con-
trol agency in Alabama for all purposes of the Federal Water
Pollution Control Act, as amended, and is authorized to take
all actions necessary and appropriate to secure the benefits
of the Act.6
Some authority over water pollution control is also held by
the State Board of Health which regulates sewage collection,
treatment and disposal.7
Alabama's waste treatment agencies vary in geographical size
from those which operate within a municipality to those of
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inter-county size. Prior to 1965 local agencies predominated.
These are divided into four types.
First, municipalities and "any area in the State of Alabama
containing as many as two hundred and fifty qualified electors"
may incorporate improvement authorities.8 These authorities
may be concerned with other services as well as sewage treat-
ment -- as many as seven public services can be included along
with sewage treatment services.9 Second, city councils may
create boards of water and sewer commissioners.10 Third, sani-
tary sewer systems can be created in any municipality.11 Fourth,
these systems may be controlled by the municipality's water
works board if this arrangement is found desirable.12 Thus,
sanitary sewer systems, boards of water and sewer commissioners,
water works boards or improvement authorities may control local
sewage management.
Recent legislation has provided for more regionalized manage-
ment. Environmental improvement authorities may now be formed
whenever environmental conditions in one or more mediums (air,
water, etc.) are "in excess of normal acceptable tolerance as
established or determined by the appropriate regulatory body."13
These authorities vary from municipal to inter-county size.
Water authorities11* were also created by legislation passed
with the act creating environmental improvement authorities.
These water authorities also may have as many as two other
functions.l5
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BOARD OF HEALTH
WATER IMPROVEMENT COMMISSION
Sanitary Sewer Systems
Waterworks Board
Improvement Authorities
Water Authorities
Boards of Water & Sewer
Commissioners
Environmental Improvement
Authorities
Municipal Waste
Section
Industrial Waste
Section
Water Quality & Waste
Studies
ALABAMA WASTE WATER MANAGEMENT SCHEME
-------
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208 (c)(2) AND
SELECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and
Existing Works as Required by Any Areawide Plan. [§208
(c) (2) (C) ] .
Each authority is granted power to regulate, locate, modify
and construct waste water treatment works.16 The larger re-
gional agencies, however, do not have control over all of the
sewage facilities within their region since the smaller agencies
are permitted to retain their autonomy.
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes
[§208(c) (2) (D)] .
Boards of water and sewer commissioners have specific statu-
tory approval to receive federal funds.17 Likewise, both en-
vironmental improvement authorities and water authorities are
granted the power to receive funds from the United States.:8
No mention is made of this power in either the improvement
authorities act or the sanitary sewer systems act, but there
is no express prohibition.
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208 (c) (2) (E)] .
With the exception of environmental improvement authorities,
all sewage treatment authorities are statutorily authorized to
impose rates and charges on their customers.19 The environ-
mental improvement authorities act does not mention how the
revenues, discussed elsewhere in the act/20 are to be collected.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of any Waste Treatment
Services Provided by the Agency [§204 (b) (1) (A)].
Boards of water and sewer commissioners and sanitary sewer sys-
tems are both empowered to assess rates, fees and charges which
insure the payment of each user's appropriate share of the avail-
able services. Boards of water and sewer commissioners' fees
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must be just and equitable.21 They are able to surcharge in-
dustrial users for any waste treatment which poses an unreason-
able burden upon their system.22 Likewise, sanitary sewer
system charges must be "uniform for the same type, class, and
amount of use of ... the sewer system,"23 and their statutes
include the same provision concerning industrial waste as do
the above mentioned boards.24
Water authorities are empowered to impose "reasonable rates"
on those who are serviced by them.25 The statute does not in-
clude a provision which permits increasing the cost of handling
less manageable pollutants. This should not act as a bar, how-
ever, since such charges would not be determined unreasonable.
Both improvement and environmental improvement authorities
have inadequate statutory guidelines. While improvement author-
ities are granted the right to collect revenue, there is no
requirement that the costs be equitably shared.26 Similarly,
environmental improvement authorities have no express provisions
which authorize the collection of charges. Instead, there is
only a section which mentions revenue from the use of the facil-
ities without explaining its source.27
2.3.2 Full Recovery Will Be Had from the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works Reason-
ably Attributable to Treatment of Such Industrial
Wastes. [§204(b)(1)(B)].
No treatment agency has a specific provision permitting them
to charge industrial users for their share of the construction
costs. While some agencies do provide for applying charges to
operating expenses,2 there is no basis on which to imply that
repayment of a portion of the federal grant could be considered
an operating expense. Alabama does, however, permit the use of
Industrial Development Bonds.29 These bonds enable a munici-
pality to construct sites and physical plants for industry by
using municipal funds; the debt created is then paid back by im-
posing rents on the industry- Obviously a similar plan of re-
covery of construction costs is contemplated by §204(b)(1)(B)
of the Act. This statutory provision could provide a precedent
for permitting recovery from industrial users.
2.4 Authority to Incur Short- and Long-Term Indebtedness [§208
(c) (2) (F)] .
All authorities may issue bonds to provide funds for construction,
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However, powers do vary among the several agencies. All bonds
issued are subject to a percentage limitation under the Alabama
Constitution according to the size of the issuing political
body.30
2.4.1 General Obligation Funding.
Only sanitary sewer authorities may issue ten or fifteen year
general obligations bonds.31
Cities and towns with less than six thousand inhabitants are
limited to issuing such bonds secured by the land and sewer
system as well as the revenues received.32 These bonds are
not general obligation bonds.
2.4.2 Special Funds and Revenue Funding.
Forty-year revenue bonds may be issued by boards of water and
sewer commissioners, improvement authorities, water authorities
and by environmental improvement authorities.33 These bonds
are subject to repayment solely out of the new facility's
revenues. 3 **
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan that Each Participating Community
Pay Its Proportionate Share of Treatment Costs.' [§208
(c) (2) (G)] .
There is no provision for insuring proportional payment by
member communities. Boards of water and sewer commissioners,
sanitary sewer systems and water authorities, however, do have
implied authority since their charges must be reasonable or
uniform.3 5
2.6 Authority to Refuse to Receive Any Wastes from Any Munic-
ipality or Subdivision Thereof, Which Does Not Comply with
Any Provisions of an Approved Plan Under §202 Applicable
to Such Area. [§208(c) (2) (H)] .
There is no mention of regulating communities discharges other
than those mentioned in paragraph 2.3.1.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
No statute could be construed to grant a "moratorium" power
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to any of the authorities. There is, however, no statute deny-
ing the power to refuse new "hook-ups" and, presumably, that
power could be attained through an agency's regulations in order
to protect the treatment works from overloading and thereby
preventing the discharge of inadequately treated sewage.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply with the
Areawide Plan.
There are no other sanctions specifically provided by statute,
but agencies might be able to establish penalties and surcharges
as protective devices. In addition, the Water Improvement Com-
mission can invoke the penalties discussed in paragraph 1.1.
2.7 Authority to Accept for Treatment Industrial Wastes. [§208
(c) (2) (I) ].
Only boards of water and sewer commissioners and sanitary sewer
systems are specifically granted power to deal with industrial
waste.36 This power should reasonably be included in the 1965
provisions for water authorities.37
3 . 0 SUMMARY
Alabama's waste water management is adequate in most respects.
However, certain chages, noted below, are advisable to elimi-
nate uncertainties as to the authorities' legal ability to comply
with requirements of the Act. It appears that improvement author-
ities and environmental improvement authorities need the most
statutory attention.
3.1 Deficiencies
1. Re 2.2. The fact that some agencies are granted power to
receive grants from any source (including federal) and
others are not makes the omission more serious when de-
termining an agency's legal capacity to accept funds.
There is, however, no apparent reason why improvements
authorities or sanitary sewer districts cannot accept such
funds.
2. Re 2.3, 2.3.1. Environmental improvement authorities and
improvement authorities should have legislation which either
requires or authorizes them to impose just and equitable
charges.
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3. Re 2.3.2. Legislation is advisable to permit the agencies
to impose charges on industrial users to recover industry's
share of the costs of construction. This could be patterned
after the industrial development bonds which require indus-
try to repay.
4. Re 2.5. No express authority exists for any agency to com-
ply with the provision of the Act.
5. Re 2.6, 2.6.1, 2.6.2. Communities' discharges should be
covered by disciplinary statutes to insure adequate imple-
mentation of the plan. If an agency or authority other
than the treatment agency presently has such power to regu-
late and penalize, such agency or authority should be assigned
this function in the areawide plan. This would overcome
the problem, although remedial legislation authorizing the
waste treatment management to have the same power would
appear to promote efficiency in enforcement.
6. Re 2.7. All systems have implied authority to accept in-
dustrial waste. However, only three agencies are presently
statutorily authorized to do this.
4.0 BIBLIOGRAPHY
1. Ala. Water Improvement Comm., Water Pollution Control - 12th
Biennial Progress Report (1971).
2. N. Hines, Public Regulation of Water quality in the United
States (1971).
3. Institute of Law & Govt., U. of Ga., Water Law and Policy in
the Southeast (1962).
4. L. Chermak, The Law of Revenue Bonds (1954).
5. Cohen, Water Law in Alabama - A Comparative Survey, 24 Ala.
L. Rev. 453 (1972).
6. Comment, Consciousness of Streams: The 1971 Alabama Water
Pollution Control Act, 24 Ala. L. Rev. 737 (1972).
FOOTNOTES
1. Ala. Code Ann. tit. 22 §140(12d) (Supp. 1971).
2. Ala. Code Ann. tit. 22 § 140(12d) (a) , (c), (g), (j), (k)
(Supp. 1971).
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3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Ala. Code Ann. tit. 22,
Ala. Code Ann. tit. 22,
Ala. Code Ann. tit. 22,
Ala. Code Ann. tit. 22,
Ala. Code Ann. tit. 22,
Ala. Code Ann. tit. 50,
Ala. Code Ann. tit. 50,
Ala. Code Ann. tit. 37,
Ala. Code Ann. tit. 37,
Ala. Code Ann. tit. 37,
Ala. Code Ann. tit. 8,
Ala. Code Ann. tit. 50,
that water authorities
created in line with sa:
system," defined at Ala
15.
16.
31.
32.
33.
34.
§140(12d)(o) (Supp. 1971).
§140(12d)(p) (Supp. 1971).
§140 (12d) (g) (Supp. 1971) .
§140(12g) (Supp. 1971).
§140(14)-(18) (Supp. 1971)
§18 (1959).
§17 (1971).
§402(31) (1959).
§601 et. seq. (1959) .
§646(1) (1959).
§273 (1971).
§78 (1971) . It should be
noted
apparently are regarded as being
sanitary sewer systems. See "sewer
Code Ann. tit. 50, §78 (1972).
The powers of sanitary sewer systems, therefore, should
be the same as water authorities except for those pro-
visions which conflict.
Ala. Code Ann. tit. 50, §§80, 81 (1971).
Ala. Code Ann. tit. 8, §277 (1971) ; Ala.
37, §§402(31), 601 (1959); Ala. Code Ann
Code Ann.
. tit. 50,
tit.
§§40,
84 (1971)
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
Ala.
Ala.
50, §
Ala.
Ann .
Ala.
Ala. i
Id.
Ala. <
Id.
Ala. i
supra
Ala. i
Ala. i
See, (
Ala. (
Ala. <
Code Ann. tit.
Code Ann. tit.
§84(20) (1971).
Code Ann. tit.
tit. 50, §§41,
Code Ann. tit.
Code Ann. tit.
37, §402(31) (m) (1959).
8, §277(18) (1971); Ala. Code Ann. tit,
37,
85
8,
37,
§§402 (36)
(1971).
§278 (1971).
§402(36) (1959)
646(4) (1959); Ala. Code
Ann.
Ann .
tit.
tit.
50,
8,
§41
§278
(1971) .
(1971) .
Code Ann. tit. 37, §646(4) (1959).
Code Ann. tit. 50, §84 (1971). See also, note 12
Code
Code
e.g., Ala. Code Ann. tit. 37, §402(36) (1956).
Code Ann. tit. 37, §815 et seq. (note esp. §822) (1971)
Const, art. 11, §§224, 225; Towns of less than 6,000 -
8 percent of the assessed value of the property therein;
towns of over 6,000 - 7 percent; counties - 3.5 percent.
Ala. Code Ann. tit. 37, §635 (1959).
Ala. Code Ann. tit. 37, §638 (1959).
Ala. Code Ann. tit. 8, §278 (1971); Ala. Code Ann. tit.
37, §402(34) (1959); Ala. Code Ann. tit. 50, §§86, 44 (1971)
Town of Opp. v. Donaldson, 16.' So. 332 (1935).
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35. See §2.3.1.
36. See notes 31, 24 supra.
37- See note 14 supra.
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
FLORIDA REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Florida's Department of Pollution Control (the Department)
sets water quality standards and has the task of enforcing
those standards.1 The operation, maintenance, construction,
expansion or modification of sanitation facilities must be
authorized by the issuance of a permit by the Department.2
Sewage disposal systems are permitted at both the county
and municipal levels.3 Sewer mains, intercepting sewers
and disposal plants are all maintained by these systems.
Counties may be separated into smaller sewer districts for
any unincorporated area.4 These districts may be made either
upon the board of county commissioners' own motion, or,
after the request of a popular petition, upon a majority
vote of the proposed district's voters.5
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1.2 Schematic Diagram of Existing Agencies
Governor
Pollution Control Board
Department of Pollution Control
Division of Planning
Division of Operations
Bureau of Enforcement
Bureau of Field Services
Bureau of Permitting
Bureau of Surveillance
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and
Construct New Works and to Operate and Maintain New and
Existing Works as Required by any Areawide Plan. [§208(c)
(2) (C)] .
Sewage disposal systems may be built by any county, district,
or municipality. These systems are also operated and main-
tained by these political entities.6
2.2 Authority to Accept and Utilize Grants, or Other Funds
from any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
Counties, districts, and municipalities may "receive and
accept from any federal agency grants."7
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208(c)(2)(E)].
County and municipal sewer agencies are empowered to raise
revenues from sewage charges.8 These rates must be just
and equitable and may be based on (1) quantity of water used,
(2) number of sewer connections, (3) number and kind of plumb-
ing fixtures, (4) average number of persons using facilities
or (5) any other factor affecting the facilities.9
2.3.1 Each Category of User Will Pay its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of any Waste Treatment
Services Provided by the Agency [§204(b)(1)(A)].
The requirement that the charge be just and equitable should
assure that all users can and will be charged their appropriate
shares. Also, industrial users may be required to pay a sur-
charge over and above the normal charge should the effluent
place an unreasonable burden upon the sewage disposal system.l °
2.3.2 Full Recovery Will Be Had fro: the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [ § 204 (b) (1) (E) ] .
User charges will eventually pay for the bond financed portion
of the sewage disposal system's cost.11 While no provision
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provides for any additional recoupment, no specific provision
could prevent this. Moreover, a contractual obligation to
repay could be handled by special provisions between the
contracting parties i.e., the treatment agency and the
industries involved.
2.4 Authority to Incur Short- and Long-term Indebtedness
[§208(c) (2) (F)] .
In Phoenix vs. Kolodziejski, a provision of Arizona's
constitution was declared unconstitutional by the United
States Supreme Court for the reason that it required a
majority vote of freeholders (with no vote requirement for
other eligible voters) to validate any government project
which required an expenditure.12 Article 7, §12, of Florida's
Constitution is nearly identical to the section struck down
by the Supreme Court in Phoenix. However, even if the Florida
clause is unconstitutional, it is highly likely that only
that part dealing with the freeholders vote would be invali-
dated, leaving the vote requirement in effect.13
Presently three types of bonds exist for financing sewage
disposal projects.
2.4.1 General Obligation Funding.
General obligation bonds exceeding twelve months maturity
may be issued by both counties and municipalities whenever
a majority of the area's freeholders approve them.11* These
bonds are secured by the ad valorem taxes of the particular
political area.15 Counties and municipalities may issue
voter-approved bonds under their respective sewage disposal
statutes to build approved facilities.16
2.4.2 Special Funds and Revenue Funding.
Revenue bonds also may be issued to finance sewage disposal
systems.17 These bonds may be adopted by ordinance or reso-
lution of the governing body without voter approval.18
2.4.3 Other Methods of Financing.
One more financing method may be used by municipalities and
counties: Article 7 §14, of the Florida Constitution pro-
vides for issuing special state bonds to finance pollution
control and abatement facilities. These bonds are secured
by the state's full faith and credit and enable interested
political entities to finance their ventures through a
lease-purchase agreement. Payment for the rentals comes
from the facilities' revenues.
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2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan that Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208(c)
(2) (G)] .
Since charges must be "just and equitable" (as noted in 2.3
supra), it is reasonable to imply that participating communities
can be required to pay their proportionate shares of treat-
ment costs.
2.6 Authority to Refuse to Receive Any Wastes from Any
Municipality of Subdivision Thereof, Which Does Not
Comply with Any Provisions of an Approved Plan under
§202 Applicable to Such Area. [§ 208(c) (2) (H) ] .
While there is no provision permitting such an action, it
is reasonable to assume that non-complying wastes may be
excluded by the sewer authorities. Certainly any wastes
which would interfere with the treatment processes must be
excluded. (See 2.7 infra in reference to industrial wastes.)
Moreover, since rules may be made by municipal systems, the
exclusion of non-complying wastes may be maintained under
an adopted rule instead of by statute.19 It is, however,
unclear that the right to refuse could be enforced against
a municipality as compared with individual (private) users.
2.6.1 Authority to Deny New or Additional "Hook-ups"
(Moratorium Effect).
Since the maintenance, expansion or modification of sani-
tation facilities depends upon Department of Pollution Con-
trol permits,2 ° new or additional hook-ups can be refused
at the state level. Such a result could also be maintained
by the local or regional authorities either by delegation
or by having the department refuse a permit until it is found
regionally acceptable.
2.6.2 Authority to Assess Penalties, Surcharaes and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply with the
Areawide Plan.
Either contracts (between the participating communities)
or regulations could provide an authority with the power to
impose fines, surcharges or other similar sanctions. At
present no statutory authority exists for such actions.
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2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
County, district, and municipal sewage disposal systems
are provided with the statutory capability to accept indus-
trial waste.21 While the definition of "sewage waste" for
county sewage disposal systems does not include industrial
waste, industrial waste is specifically mentioned in later
sections and, thus, can be accepted.2
No particular provision of the statutes covering sewage
disposal systems requires pretreatment by industrial users
whenever it is found necessary. This should, however, be
considered implicit in a more general statute covering
municipal systems which provides that the governing bodies
may make such rules as are necessary for the system's effi-
cient operation.23
District sewer systems are specifically empowered to "prescribe
methods of pretreatment of industrial wastes" and "to refuse
to accept such industrial wastes when not sufficiently pre-
treated'. . ."2k
3.0 SUMMARY
Present Florida statutory frameworks for its sewage dis-
posal systems is fairly consistent with the Act's require-
ments .
3.1 Deficiencies
Re 2.6, 2.6.2. Specific authorization to refuse to receive
wastes from a municipality or subdivision may be required.
At present it appears that such a limitation has never been
attempted. Additional sanctions might be provided to re-
place or to be an addition to that mentioned above.
4.0 BIBLIOGRAPHY
1. Office of the Clerk of the House of Representatives,
Guide to Agencies^of the Florida Executive Department
(1971).
2. The Florida Handbook 1971-1972 (1971).
3. Environmental Protection Agency 1972 Compendium State
Water Pollution Control Agencies with Regulatory/Police-
Making Responsibility (1971TT
- 190 -
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4.
5.
6.
7.
1.
2.
3.
4.
5.
6.
7-
9,
10,
11,
12,
13,
14,
15,
16,
17.
18.
19.
20.
21.
22.
23.
24.
Fischer, "Florida Courts and Water Pollution: A Floating
Crap Game?" 2 Environmental L. 189 (1971) .
Slade, "Is This Election Necessary?" 44 Fla. Bar J.
461 (1970).
Water and Waste Treatment Facilities, East Central
Florida Regional Planning Council (1965).
Planning Legislation, East Central Florida Regional
Planning Council (1965).
Fla. Stat. Ann,
Fla. Stat. Ann,
Fla. Stat. Ann,
(1966), (Supp.
Fla. Stat. Ann,
Fla. Stat. Ann
FOOTNOTES
§§403.061, 403.121
§403.087(1) (Supp.
§153.01
1972) .
§153.50
(Supp
1972)
1972)
et seq. (1972), 184.01 et seq.
et sea. (1972)
Fla. Stat. Ann,
(1972).
52(3) (1972)
184.03(1)
§§153.53(1), (2)
§§153.03(1), 153
(1966) .
Fla. Stat. Ann
(10) (1966) .
Fla. Stat. Ann. §§153
Fla. Stat. Ann. §§153
(1) (b) (1966) .
Fla. Stat. Ann
(d) (1966).
Fla. Stat. Ann
184.09(1) (a) (1966) .
399 U.S. 204, 90 S. Ct. 1990, 26 L. Ed. 2d. 523 (1970)
See discussion in Slade, "Is This Election Necessary?1
44 Fla. Bar J. 461,462 (1970).
Fla. Const. Art. 7, §12(a).
Fla. Const. Art. 7, §12.
Fla. Stat. Ann. §§153.08, 153.68 (1972)
Fla. Stat. Ann. §§153.09, 153.63 (1972)
State vs. City of St. Petersburg, 61 So
City
§§153.03(4), 153.62(17) (1972); 184.03
11, 153.64 (1972); 184.09 (1966).
11(1)(c), 153.64(2) (1972); 184.09
§§153.11(1)(e) (1972), 184.09(1)
§§153.11(1) (b) , 153.64(1) (1972).
of Fla. Div. B
726, 27 So. 2d,
Fla. Stat. Ann.
Fla. Stat. Ann.
See 2.3.1.
Fla. Stat. Ann.
Fla. Stat. Ann.
Fla. Stat. Ann.
State vs
of
1952)
118 (1946)
§184.03(6) (1966).
§403.087(1) (Supp. 1972)
§§153.11(1)(e), 153.02(13)
§184.03(6) (1966).
§153.62(12) (1972) .
184.07 (1966).
184.08 (1966).
2d, 416 (Sup. Ct,
Miami 157 Fla.
(1972)
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
GEORGIA REPORT
(197?)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Georgia has very little statutory law specifically covering
sewage treatment matters. Indeed, all statutes dealing with
sewage treatment are subsumed under more general categories.
Thus, "municipalities," which include counties, school dis-
tricts , cities, towns and other state and local authorities
may finance revenue-producing undertakings among which may
be found "systems, plants (etc.) . . . used in connection
with the collection, treatment and disposal of sewage,
waste and storm water."1 This appears to be the only statu-
tory authority for such "municipalities" to collect and treat
sewage, except cities and towns are given certain more specific
powers.
While little definitive legislation exists on local or re-
gional powers, there has been some recent environmental
legislation dealing with sewage treatment matters. The
Georgia Water Quality Control Act2 now gives the Department
of Natural Resources regulatory powers over sewage disposal.3
This agency also sets standards and acts as the standard
enforcement agency.4
1.2 Schematic Diagram of Existing Agencies
Department of Natural Resources
Environmental Protection Division
Water Quality Control Section Water Supply Section
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND
SELECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and
Existing Works as Required by Any Areawide Plan. [§208
(c) (2) (C)] .
Specific authority exists for cities and towns "to acquire . . .
to construct, to reconstruct, to improve, to better, and to
extend any . . . sewage system . . . [and] to operate and
maintain any such systems . . .5 Other local units under the
general heading of "municipalities" have similar powers to
operate, maintain and construct sewage treatment and disposal
systems.6
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
There is no express statutory authority enabling local agencies
to accept grants from all sources. All local agencies, however,
are authorized to purchase systems or acquire systems "by
gift."7 From this it could be implied that adequate authority
exists for these agencies to accept and utilize federal grants.
In addition, certain municipalities may receive grants of state
funds for the purpose of constructing or improving capital
outlay items, and all local agencies may be granted state
funds for water pollution control projects as noted in para-
graph 2.4.3.
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§ 208 (c) (2) (E) ] .
Cities and towns are granted authority "to prescribe,
revise, and collect rates, fees, tolls or charges for the
services . . . furnished."8 A similar provision is available
for counties and other "municipalities."9
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by he Agency [§204(b) (1) (A)].
While there is no express provision either preventing or
- 194 -
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requiring the proportionate charging of categories of users,
this could be implied from the general authority to charge.
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [§204(b) (1) (B) ] .
No specific provision exists on this matter. However,
facilities containing waste treatment plants may be built
by a town or city and then leased or sold to industry.10
Since this is permissible, recoupment of construction costs from
industrial users of municipal plants is probable.
2.4 Authority to Incur Short- and Long-term Indebtedness
[§208(c) (2) (F) ] .
All municipalities11 may finance sewage projects by issuing
bonds in anticipation of the collection of revenues.12
2.4.1 General Obligation Funding.
Counties, municipal corporations and other political sub-
divisions of Georgia may not incur debt in excess of one-fifth
of one percent of the assessed value of all of the taxable
property therein without the majority vote of those voting
qualified voters . -1 3 Furthermore , no debt may be incurred over
seven percent of the taxable property's assessed value.1"4
2.4.2 Special Funds and Revenue Funding.
Forty-year revenue bonds may be issued by any municipality.l5
Municipalities are statutorily authorized to issue these
bonds, secured by only the revenue from the financed works,
whenever the governing body adopts a resolution for issuing
these bonds by a majority vote.
2.4.3 Other Methods of Financing.
Certain municipalities may receive grants from the state for
the purpose of "purchasing, constructing, improving, main-
taining and repairing capital outlay items."15 In addition,
the State of Georgia may make grants to all local agencies
to assist them in construction of water pollution control
projects .l7
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2.5 Authority to Assure in Implementation of Its Waste
Treatment Management Plan That Each Participating
Community Pay Its Proportionate Share of Treatment
Costs. [§208(c) (2) (G)] .
No provision exists which would either deny or guarantee each
participating community that it would pay no more than its
proportionate share.
2.6 Authority to Refuse to Receive Any Wastes from Any
Municipality or Subdivision Thereof , Which Does Not
Comply with Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§ 208 (c) (2) (H)] .
No statutory provision exists on this matter and, due to
the serious impact such action would have on a community's
welfare, it probably would not be permitted absent such approval,
2.6.1 Authority to Deny New or Additional "Hook-ups"
(Moratorium Effect).
No provision exists which would either permit or prevent a
municipality from denying hook-ups, although the Department
of Natural Resources may enjoin and restrain any actual or
potential discharges or other practices which may violate
pollution control laws.18
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply with the
Areawide Plan.
The Department of Natural Resources may enforce its orders
by fines up to $500 for each day of violation and by injunc-
tions.19 The local agencies, however, lack express authority
for such sanctions.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
No provision provides for the refusal or treatment of in-
dustrial wastes at the local level. However, this power
may be reasonably implied from the definition of the term
"sewage" used by the Department of Natural Resources, which
definition includes discharges from industrial establishments.20
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3.0 SUMMARY
There is a lack of express statutory authority for many of
the requirements. These deficiencies might be troublesome
for Georgia's wastewater management funding. Legislation in
the areas noted below would be most helpful.
3.1 Deficiencies
The deficiencies in Georgia concern the lack of express
authority to meet various requirements of the Act. In some
cases the necessary powers can be implied to exist, in others
it can not.
For example, the power to accept and utilize grants may
be reasonably implied to exist, but an express grant of
authority would make this more certain. A complete lack
of authority to charge proportionate rates based on the
nature of the effluent or to refuse to accept wastes from
noncomplying municipalities is apparent here as well.
This deficiency is also true of the power to charge com-
munities proportionate rates. These are areas where the
necessary powers may not be established by implication.
Legislation would be required to grant the authority needed
in these deficient areas, and it would also be best to change
those powers which are now only implied to being expressly
delegated.
4.0 BIBLIOGRAPHY
1. Comment, Georgia's Environmental Law: A Survey, 23
Mercer L. Rev. 633 (1972).
2. Hirsch, Kenneth L., On Buying Clean Water -- Reflections
on the Georgia Water Pollution Controls, 23 Mercer L.
Rev- 603 (1972).
3. Howard, R.S., Pure Water for Georgia: A Report on the
State's Progress, Georgia Municipal Journal, November
(1965).
FOOTNOTES
1. Ga. Code Ann. § 87-802(3) (ii) (1971).
2. Ga. Code Ann. §17-501 et sea. (1971).
3. Ga. Code Ann. §17-511 (Supp. 1972).
- 197 -
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4. Ga. Code Ann. §§17-505(b) (6), (10) (1971).
5. Ga. Code Ann. §69-314(1967).
6. Ga. Code Ann. § 87-803(a) ,(b) (1971) .
7. Ga. Code Ann. §§87-803(a) (1971) , §69-314(1967).
8. Ga. Code Ann. §69-314(1967).
9. Ga. Code Ann. § 87-803 (c) (1971) .
10. Ga. Code Ann. § 69-1501 (e) (Supp. 1972).
11. Ga. Code Ann. § 87-802(11) (b) (1971) defines "municipalities"
as "any school district, county, city, town . . . and
State and local public authorities having corporate
powers ..."
12. Ga. Code Ann. § 87-802 (3) (ii) (1967) .
13. Ga. Constitution §2-6001.
14. !Ed.
15. Ga. Code Ann. §87-805 (1971).
16. Ga. Code Ann. §69-1301 et seq. (1967).
17. Ga. Code Ann. §17-524 (1971).
18. Ga. Code Ann. §17-521 (1971).
19. Ga. Code Ann. §§17-521.2 (Supp. 1972), 17-521 (1971).
20. Ga. Code Ann. § 17-503(g) (1971) .
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
KENTUCKY REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Kentucky's water pollution control laws were expanded and
modernized effective January 1, 1973. The former Water
Pollution Control Commission under the Department of Health
was superceded by a new agency called the Department of
Environmental Protection. Headed by a Commissioner of
Environmental Protection appointed by the governor, the
DEP is responsible for safeguarding the waters of the state
from pollution, preventing new pollution, and abating existing
pollution.2 More specifically, the DEP handles the broad
functions of planning, setting standards, regulating, and
enforcing an anti-pollution program.3
The DEP is assisted by the Environmental Quality Control
Commission, consisting of seven members appointed by the
governor.4 This- commission serves as an advisory committee
to the commissioner and the governor, and may make recommenda-
tions to the DEP.5
Another agency was created by the 1972 legislature for the
purpose of giving state financial assistance to local agencies
so as to make the agencies eligible for more federal grant
funds.6 This Kentucky Pollution Abatement Authority is attached
to the DEP.7 Functions of the authority include making
state grants to local agencies in such a way as to maximize
the federal funds received,8 receiving and accepting grants
to be held and applied to local agencies for only those pur-
poses for which given,9 and to regulate the state grant
funding process including issuing and rejecting state grants.10
The legislature has provided that no person or entity what-
soever shall discharge into the waters sewage, industrial
wastes, or other wastes which shall contribute to the pollu-
tion of the waters in contravention of the standards adopted
by the DEP or its rules, regulations, and orders.11 Violation
of this statute can result in orders abating such activities,12
civil penalties,13 injunction,14 or imprisonment.15
At the local level, the functions of construction, operation,
and maintenance of disposal and treatment works are handled
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by Metropolitan Sewer Districts, Sanitation Districts, and to
a lesser extent Water Districts. Metropolitan Sewer Districts
are permitted in and around first or second class cities
and their counties.16 These districts have express authority
over operation and construction of treatment works.17
Sanitation Districts may consist of a county, part of a county,
or several counties.18 The board of directors draws up a
comprehensive plan for the district which is submitted to the
DEP for approval.19 Construction and operation functions are
also found here.20 Water Districts may be within a county
or extend into adjoining counties.21 Their primary purpose is
furnishing water to the citizens of the district. However,
they can also "acquire, develop, maintain, and operate"
sewage disposal systems within their district.22
1.2 Schematic Diagram of Existing Agencies
Environmental
Quality Control
Conmission
Dept. of Environmental
Protection
_L
Metropolitan
Sewer
Districts
Kentucky Pollution
Abatement Authority
Sanitation
Districts
Water
Districts
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND
SELECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and
Construct New Works and to Operate and Maintain New and
Existing Works as Required by Any Areawide Plan. [§208
(c) (2) (C)] .
All local management agencies in Kentucky have express authority
to operate,23 construct,24 and contract for construction25 as
required by this provision. The contracting power is subject
to procedures which must be followed, but is not restricted
or limited.
In addition, all local districts can accept sewage and provide
service for areas outside their jurisdiction.26
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
The DEP is expressly authorized to accept and administer
grants or other funds or gifts from public or private agencies
including the federal government for the purpose of carrying
out the functions of the department.27
Likewise, the main grant management agency, the Kentucky
Pollution Abatement Authority, can accept grants for, or in
aid of, any waste water project.28 Such grants must be held,
used, and applied only for the purposes for which they are
made.29
All local management agencies have statutory authority to
"make application for, and to receive, federal grants in aid
of eligible projects in accordance with the provisions of any
federal laws now in effect, or in effect in the future."30
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208(c)(2)(E)].
All those management agencies which have the authority to
operate and construct treatment works can establish rates
and charges for their services.31
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2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)].
There is both express and implied authority for two of the
agencies to establish their rates based on the characteristics
of the effluent of various categories of users. The rates
for Metropolitan Sev/er Districts may be based on volume of
water used, number and kind of plumbing fixtures connected
to the user, number of persons served by the facilities, or
any other fair and reasonable basis. In addition there can
be a surcharge for heavy industrial wastes or other excessive
wastes.3 2
In Sanitation Districts, the rates must be "reasonable,"
taking into consideration the cost of the works , cost of
operation and maintenance, and cost of retiring bonds.
The statute also provides that the same rates shall apply
to all users of the same class.33 From this, the necessary
authority can be implied.
However, in Water Districts there is neither express authority
to meet this provision, nor implied power from a reasonable
rates clause. The statute merely provides that the district
can "establish water rates. "3t+ This may not be a serious
defect though, since the primary function of the Water
Districts is to furnish water, not sewage treatment.
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [§204(b) (1) (B) ] .
None of the local agencies has the express statutory power
to provide for this. Such power might be implied from their
authority to compute rates and charges in such a way as to
pay off debts, meet contractual obligations, and amortize
b ond s . 5
2.4 Authority to Incur Short- and Lona-term Indebtedness
[§208(c) (2) (F) ] .
The authority for short-term indebtedness can be implied from
the powers to contract which all local agencies possess.35
Also, Sanitation Districts can borrow money for preliminary
expenses at any rate less than 6%. These "negotiable warrants"
are secured^by a pledge of the preliminary tax authorized
by statute. J 7
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2.4.1 General Obligation Funding.
None of the local agencies has express power to issue general
obligation bonds. The Kentucky Pollution Abatement Authority
does possess this power, providing the bonds are approved
by the voters of the state.38 In addition, a tax must be
levied sufficient to discharge the debt within thirty years.39
2.4.2 Special Funds and Revenue Funding.
Revenue bonds may be issued by all local management agencies.40
Such bonds may be left outstanding for up to 40 years for
Metropolitan Sewer Districts and Sanitation Districts, and
up to 50 years for Water Districts. The limit on interest
is 5% for Metropolitan Sewer Districts, and 6 1/2% for
Sanitation Districts and Water Districts.41 There is no
limit on the amount of these bonds.
2.4.3 Other Methods of Financing.
The Kentucky Pollution Abatement Authority can enter into
assistance agreements with local agencies to provide funds
for eligible projects. Such grants must be repaid to the
authority, and the local agency may impose a service charge
on users in order to produce amounts sufficient for this
purpose.42
2.5 Authority to Assure in Implementation of Its Waste
Treatment Management Plan That Each Participating Com-
munity Pay Its Proportionate Share of Treatment Costs.
[§208(c) (2) (G)] .
There is no express authority for any of the local management
agencies to assure compliance with this provision. However,
the necessary power can be implied from the authority to
operate a treatment works for an area encompassing two or
more communities.43 In this manner, when a district accepts
sewage on contract from an adjoining district or city, the
participants may agree as to the proportion each will pay.
In addition, Kentucky has an interlocal cooperation act44
which permits local government units to cooperate with other
localities to their best mutual advantage. This would enable
two towns or districts to agree to be served by one treatment
facility and include a provision apportioning the costs.
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2.6 Authority to Refuse to Receive Any Wastes from Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§208(c) (2) (H)] .
The local agencies lack any express power to cut off munici-
pality's service, although they can cut off service to individual
users for non-payment of bills.45 On a state level, the DEP
has the power to revoke a municipality's permit to discharge
sewage if such municipality violates the rules and regulations
of the department.46 In addition, it is a violation of the
general prohibition against pollution for any entity to
discharge wastes in contravention of the DEP's rules and
regulations.4 7
2.6.1 Authority to Deny New or Additional "Hook-ups"
(Moratorium Effect).
There is no express legislation providing for this, but it
may be implied where a local agency is serving several com-
munities and the local agency has the power to approve and
regulate all new plans for connections to the system.48
The DEP has authority to deny or revoke permits for the
discharge of sewage, industrial wastes or other wastes.49
Thus the DEP could deny or revoke a permit if the municipality
did not meet certain conditions which could include a mora-
torium on new hook-ups.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply with the
Areawide Plan.
None of the local agencies has exnress powers to assess
penalties against municipalities, although Sanitation Dis-
tricts can recover civil damages from any person or public
corporation who violates the district's regulations.50
Likewise, the DEP can use injunctions, civil damages, and the
criminal sanction against nersons, agencies, or municipalities
who violate the provisions of the anti-pollution statutes.51
2.7 Authority to Accept for Treatment Industrial Wastes.
[;208(c) (2) (I) ] .
The authority to accept industrial wastes is not express,
but could be implied from the local agencies' powers to
recrulate and manage all aspects of the waste disposal affairs
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of their districts.52 Local agencies also have the necessary
authority to set pretreatment standards in order to protect
their equipment. This power comes from the express authority
to deny treatment of "any wastes deemed detrimental to the
works"53 and the authority to promulgate all regulations
"necessary to regulate the use, operation, and maintenance
of property and facilities under its control. "5Lf
On the state-wide level the DEP has authority here because
of its broad powers to regulate and deny the right to dis-
charge industrial wastes.55
3.0 SUMMARY
This report has noted the recently enacted legislation
creating the DEP and establishing the Kentucky Pollution
Abatement Authority. While it is too early to determine
whether the DEP will make full use of its broad powers of
planning, regulation, standard setting, and enforcement,
the mere existence of the new legislation with its stated
purpose of enabling the state to receive more federal grant
funds is significant.
Local waste treatment agencies possess most of the powers
necessary to meet the provisions of the act. The chief
problem here is that many of the powers are implied rather
than expressly granted. Therefore, the extent of the agencies
powers is uncertain. A further ambiguity results from the
various local agencies having somewhat different powers or
similar powers stated in different ways. A solution to
eliminate the uncertainties would be for the legislature
to enact legislation giving local agencies the express
powers needed under the act and granting them all uniform
authority-
3.1 Deficiencies
The chief deficiencies in Kentucky are the lack of express
authoritv 1) to assure each category of user pays its pro-
portionate share of the costs of treatment, 2) to recover
certain capital costs of construction from industrial users ,
3) to require each community pay its proportionate share, and
4) to refuse to accept any wastes from users not in compliance
with the plan. These powers are now merely implied. Re-
medial legislation could remove any doubts by expressly
granting to the agencies the necessary authority.
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4.0 BIBLIOGRAPHY
None.
FOOTNOTES
1
2
3
4
5
10,
11,
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26,
27.
28.
29.
30.
31.
32.
33.
34.
35.
Kentucky Revised Statutes, §224.031.
K
K
K
K
K
K
K
K
K
K
K
K
S
S
S
.S
S
S
.S
S
.S
.S
.S
§224.020.
§224.033.
§224.041.
§224.045.
§224A.020
§224A
§224A
§224A.050
§224A.070
§224.060.
§224.033.
§224.993.
030
040
Id.
Id.
K.R
K.R
K.R
K.R
K.R
K.R
K.R
K.R
220
K.R
§76.010.
§ 76 .080 .
§§220.220
§220.240.
§220.280.
§§74.010,
§74.407.
§§76.080,
S
S
S
S
S
S
S
S
280, Sanitation Districts; 74.407, Water Districts
S. §§76.080, Metropolitan Sewer Districts; 220.280,
220.040, 220.050
74.115
Metropolitan Sewer Districts; 220.030
Sanitation Districts; 74.407, Water Districts
K.R.S. §§76.100, 76.080, Metropolitan Sewer Districts;
220
K.R
220
K.R
K.R
Id.
K.R
K.R
.270, Sanitation
S. §§76.170, 76
.285, Sanitation
S
S
§224.033.
§224A.050
Districts; 74.260, Water Districts
190, Metropolitan Sewer Districts;
Districts; 74.414, Water Districts
Metropolitan Sewer Districts
74.080, Water Districts
S. §224A.080
S. § §76.090,
Sanitation Districts
K.R.S. §76.090.
K.R.S. §220.510.
K.R.S. §74.080.
K.R.S. §§76.090, Metropolitan Sewer Districts;
Sanitation Districts; 74.300, Water Districts.
220.510
220.510
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36. K.R.S. §§76.100, Metropolitan
Sanitation Districts; 74.260,
37. K.R.S. §220.370.
38. K.R.S. §224A.220.
39. Constitution of Kentucky, §50.
40. K.R.S. §§76.150, Metropolitan
Sanitation Districts; 74.290,
41. K.R.S. §§76.150, Metropolitan
Sanitation Districts; 74.290,
42. K.R.S. §224A.100.
43. K.R.S. §§76.190, Metropolitan
Sanitation Districts; 74.120,
44. K.R.S. §65.210.
45. K.R.S. §§76.090, Metropolitan
Sanitation Districts.
46. K.R.S. §224.033.
47. K.R.S. §224.060.
48. K.R.S. §§76.080, Metropolitan
Sanitation Districts; 74.080,
49. K.R.S. §224.033, The DEP also
§224.060 .
50. K.R.S. §220.320.
51. K.R.S. §224.993.
52. K.R.S. §§76.080, Metropolitan
Sanitation Districts; 74.070,
53. K.R.S. §220.320.
54. K.R.S. §76.180.
55. K.R.S. §224.033.
Sewer Districts; 220.290,
Water Districts.
Sewer Districts; 220.380,
Water Districts.
Sewer Districts? 220.390,
Water Districts.
Sewer Districts; 220.350,
Water Districts.
Sewer Districts; 220.510,
Sewer Districts; 220.320,
Water Districts.
has this authority under
Sewer Districts; 220.030,
Water Districts.
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT,
MISSISSIPPI REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies.
The Mississippi Air and Water Pollution Control Commission
(Commission) is in charge of the state's anti-pollution pro-
gram.1 It is responsible for the functions of planning, stan-
dard setting, regulation, and enforcement,2 while actual
operation and construction of wastewater treatment facilities
is handled by local agencies.
The Commission is composed of six officials who serve by
virtue of being heads of various state agencies and four mem-
bers who are appointed by the governor.3 An executive secre-
tary appointed by the Commission has actual supervision of the
water quality control programs."
Broad powers are held by the Commission, including the develop-
ment of comprehensive programs for the prevention and abatement
of water pollution, the adoption of water quality standards,
the issuance of orders prohibiting discharges or requiring
construction of new disposal systems, the control over permits
required for discharge of wastes, and the administration of
funds and grants to the local agencies.5 The Commission is
also authorized to enter and inspect private or public property
for conditions relating to pollution, and to require records
to be maintained regarding the operation of disposal systems.
Any person, including municipalities, (except those persons
discharging wastes into a municipal system), must pay an annual
fee for the inspection of the effluent.6
A water pollution abatement grant program was created in 1971
to previde state funds for construction of treatment plants to
handle sewage and industrial wastes.7 This program is admini-
stered by the Commission.
In Mississippi, it is unlawful for any person, agency, munici-
pality, or any other entity to cause pollution of the state's
waters, to place wastes in a location whereby pollution is
likely, or to discharge any wastes which reduce the quality of
the waters below the standards set by the Commission.8 Viola-
tion of this statute or of any order or regulation of the
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Commission can result in a complaint being served upon the
violator.9 After a hearing, the Commission can issue such
orders as it deems necessary,10 with appeals allowed to the
county chancery court.11 Penalties include fines from $50
to $3,000 per day, imprisonment up to one year, or both.12
At the local level, the functions of construction, operation,
and maintenance of wastewater treatment plants are carried
on by all municipalities13 and certain counties.1"4 Eligible
as municipalities are incorporated cities, towns, and vill-
1 5
ages.1" Only those counties which contain a national guard
camp, army training camp, air base, or artillery range are
authorized by statute to provide sewage disposal systems.16
Both the counties and the municipalities have the express
power to operate treatment works "within and without their
territorial limits,"17 but lack the express authority to
combine systems with neighboring counties or municipalities.
In municipalities, the treatment and disposal systems are
managed by Public Utilities Commissions, ranging from three
to five members under the mayor.l e These commissions have
the power to make any regulations necessary for the safe and
efficient operation of the system.
1 9
1.2 Schematic Diagram of Existing Agencies.
GOVERNOR
Mississippi
Air and Water
Pollution Control Commission
Executive Director
J_
Air Pollution
Control Div.
Staff Admin.
Public Info.
Water Pollution
Control Division
Laboratory
Services Div.
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND
SELECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208 (c) (2) (C)].
All eligible counties, as well as all municipalities, have the
express statutory authority to operate and construct treatment
works, either directly or by contract.20 No specific restric-
tions or required procedures are attached to the power to con-
tract. In addition, the counties and municipalities have express
authority to operate outside the confines of their political
boundaries .2 J
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, fpr Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
County waste management agencies are authorized to acquire real
or personal property by gift or grant.22 From this the powers
to accept money grants can be implied. Likewise, the munici-
palities , have express statutory authority to accept federal
grants in aid of construction of a treatment system.2 3
At the state-wide level, the Commission is empowered to accept
and administer loans and grants from the federal government or
any other source. Such funds cannot be diverted, but must be
expended only for the purposes for which provided.24
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [§ 208 (c) (2 ) (E) ] .
All local agencies have explicit authority to establish and
collect charges for their services.25 It is general authority
only and does not expressly include charges based on the charac-
teristics of the effluent.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency. [§204 (b) (1) (A)].
No express authority exists for either counties or municipalities
to compute charges based on the characteristics of the user's
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effluent. These agencies do, however, have the power to
establish rates sufficient to provide revenues to pay the
costs of operation and maintenance, retire bonds, and pro-
vide a reserve fund for improvements.26 From this, and the
lack of a specific prohibition against charging proportion-
ately, the necessary power can reasonably be implied.
2.3.2 Full Recovery Will Be Had From the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [§204 (b) (1) (B) ].
Counties and municipalities both lack any express powers to
comply with this provision. This authority might be implied
where acceptance of a federal grant imposes a contractual
obligation on the local agency to comply with federal reg-
ulation. That is, a contractual duty or debt would be created
which would allow the agencies to recover construction costs
from industry under the express powers the agencies have to
compute rates which pay operation costs and service the debt.27
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)].
Counties have explicit authority to enter into contracts for
construction and financing of treatment systems, which implies
the authority to incur short-term indebtedness. 8
Municipalities have similar contractual powers,29 as well as
the express authority to borrow money and issue negotiable
notes for the purpose of improving or repairing disposal systems.30
Such debts must be repaid within three years and cannot exceed
five percent of the gross revenues of the system in the preceding
fiscal year.3l
2.4.1 General Obligation Funding.
Counties are not expressly authorized to meet this provision.
All counties in Mississippi have the power to issue general
obligation bonds for specific enumerated purposes, but financing
sewage disposal works is not among those purposes.32
Municipalities have the express power to issue general obliga-
tion bonds for public utilities and sewage systems.33 Such
bonds must mature within 25 years and pay not more than six
percent interest.31* In addition, the bond issue -must be ap-
proved by three-fifths of the voters of the municipality.35
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2.4.2 Special Funds and Revenue Funding.
Those counties eligible to operate sewage treatment systems have
express authority to issue revenue bonds.36 These bonds must
mature within 40 years and bear no more than five percent
interest . 3 7
All municipalities can issue revenue bonds.38 Such bonds are
required to mature before 35 years at an interest rate to be
determined before issuance.39 In addition, the municipality
must pass an ordinance authorizing the bonds,1*0 and bonds
for new facilities must be approved by a majority of the muni-
cipality's voters. 'll If the amount is over five million dol-
lars, a special fiscal advisor must assist the municipality.1*2
2.4.3 Other Methods of Financing.
Any political subdivision authorized to operate sewage and
industrial waste disposal and treatment plants can borrow
funds for construction of facilities from the state's water
pollution abatement grant program.1*3 The amount is limited
to 25 percent of the total cost of construction.1*1* Repayment
must be accomplished within 20 years.1*5
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208(c)
(2)
There exists no express authority for either counties or muni-
cipalities to assure compliance with this provision. Further-
more, little authority exists for one political subdivision to
serve as a disposal and treatment agency for surrounding com-
munities. Such authority would imply the power to charge
communities proportionately, since the communities could agree
to rates and charges by contract. However, the only authority
for such an areawide program is the power for two or more
counties or municipalities to join together to create regional
planning commissions which merely give advice on planning and
zoning, or the power of counties and municipalities to oper-
ate sewage disposal systems "within and without their terri-
torial limits."1*7 Mississippi does not have an interlocal
cooperation act as such.
It may be possible to imply the power for one community to serve
surrounding communities, and from this to further imply that
- 213 -
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the communities could then agree among themselves as to pro-
portionate rates.
2.6 Authority to Refuse to Receive Any Wastes From Any
Municipality or Subdivision Thereof, Which Does Not
Comply With Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§208 (c) (2) (H) ] .
Both counties and municipalities lack any express power to cut-
off service to communities who violate any provisions of the
plan.
There is authority at the state level for the Commission to
deny or revoke the permits which are required for construction
of new disposal and treatment works, for discharging from such
works, and for operating any industry which discharges pollu-
tion.148 A possible conflict should be noted with the statute
that states that municipalities do not need a permit to con-
struct or improve any system.1+9 The state also may have some
power due to the general ban on water pollution which declares
it unlawful to cause pollution of the waters or to discharge
wastes which lower the quality of the waters below standards.50
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
No express authority exists for either counties or municipalities
to deny new hook-ups. Some authority may be implied, however.
For example, counties have the power to maintain their systems.51
They could therefore refuse new hook-ups which would be harmful
to the system. Counties also can make contracts regarding
operation and maintenance of their systems.52 The terms of such
contracts could provide for denial of new hook-ups for violators
of the plan.
It may also be implied that municipalities have such power.
They can adopt such ordinances and resolutions and do all things
and perform all acts necessary, proper or desirable to effectuate
the purposes of the statutes dealing with waste disposal.53 In
addition, the public utilities commissions have "entire control
and management" of such treatment systems.51* From this it is
possible that the necessary authority could be implied.
At the state level, the Commission can deny permits for con-
struction and operation of new industries which will pollute
the waters , and deny the use of any new outlets for discharging
wastes.5 5
- 214 -
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2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply with
the Areawide Plan.
None of the local government units has the express authority
to assess municipalities.
Statewide, any person or political subdivision found in vio-
lation of a Commission order is guilty of a misdemeanor
and subject to being injoined and to penalties of a 50 to
three thousand dollar a day fine and one year in jail.56
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)].
Counties and municipalities do not have express authority to
accept industrial wastes. Such authority can reasonably be
implied from the power to operate a "sewage system, sewage
disposal system, garbage disposal system, rubbish disposal
system or incinerators."57
The power of local governments to require pretreatment of in-
dustrial wastes can be implied from the power of counties to
make contracts regarding operation and maintenance of the
system,58 and the municipal public utilities commissions'
power to make such regulations as it may deem necessary for
the safe, economic, and efficient management and protection
of the system.5 9
The State Commission also has the authority to require permits
and to require proper maintenance of disposal systems.6
3.0 SUMMARY
In Mississippi, the Air and Water Pollution Control Commission
is vested with potentially far-reaching powers. Its authority
to develop planning, set quality standards, issue prohibition
orders, conduct inspections, and control permits is significant.
The local government units which handle the construction, oper-
ation, and maintenance of treatment works are less well equipped
to comply with the provisions of the act. For instance, the
counties and municipalities have only a general authority to
set rates and charges, and no express authority to assess
communities proportionately or to refuse to accept wastes from
violators. New legislation is definitely needed to give local
agencies the express powers needed to comply with the act.
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3.1 Deficiencies
Several necessary powers are now merely implied instead of
being expressly granted to the proper agencies. This creates
confusion over the exact extent of these powers. It is diffi-
cult even to imply the existence of some other powers. The
main problem areas in Mississippi are: 1) collecting rates
and charges based on characteristics of the effluent, 2) re-
covering construction costs from industrial users, 3) assuring
communities pay proportionately, and 4) refusing to accept
wastes from municipalities.
4.0 BIBLIOGRAPHY
Note, Water Pollution Control in Mississippi, 41 Miss. L. J.
351 (1970) .
FOOTNOTES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Id.
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Mis s .
Id.
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Ann.
Ann .
Ann.
Ann.
Ann .
Ann .
Ann.
Ann.
Ann.
Ann .
Ann .
Ann .
Ann .
Ann.
Ann .
Ann .
Ann.
Ann.
Ann.
Ann.
Ann .
Ann.
Ann .
Ann .
Ann .
§49-17-7 (1972) .
§49-17-17.
§49-17-7.
§49-17-13.
§49-17-17.
§49-17-21.
§49-17-61.
§49-17-29.
§49-17-31.
§49-17-41.
§49-17-43.
§21-27-23.
§17-5-3.
§21-27-11.
§17-5-3.
§§17-5-3, counties;
§21-27-13.
§21-27-17.
§§17-5-5, counties;
§§17-5-3, counties;
§17-5-5.
§21-27-23.
§49-17-17.
§§17-5-5, counties;
§§17-5-5, counties;
21-27-23, municipalities
21-27-23, municipalities
21-27-23, municipalities
21-27-23, municipalities
21-27-47, municipalities
- 216 -
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28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
Miss .
Miss .
Miss .
Id.
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Id.
Miss .
Miss .
Miss .
21-27-
Miss .
Miss .
Miss .
Miss .
Id.
Miss.
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Miss .
Code
Code
Code,
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
39.
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Ann.
Ann .
Ann .
Ann .
Ann.
Ann .
Ann.
Ann.
Ann.
Ann .
Ann.
Ann .
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann .
Ann .
Ann.
Ann .
Ann.
Ann.
Ann.
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
17-5-5.
21-27-23.
21-27-25.
19-9-1.
21-33-301.
21-33-315.
21-33-311.
17-5-3.
17-5-7.
21-27-23.
21-27-45.
21-27-41.
21-27-43.
21-27-45.
49-17-61.
49-17-65.
17-1-29.
17-5-3; for municipalities see §§21-27-23,
§49-17-17, 49-17-29.
21-27-29.
49-17-29-
17-5-5.
21-27-23.
21-27-17.
49-17-29.
49-17-43.
21-27-23; for counties see 17-5-3.
17-5-5.
21-27-17.
49-17-17.
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
NORTH CAROLINA REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
The North Carolina Board of Water and Air Resources1 was cre-
ated in 1967. This board sets water quality standards,2 en-
forces these standards by special orders,3 and issues discharge
permits.4 An advisory council assists the board in its stan-
dard setting powers.5
Three different waste water management agencies exist in North
Carolina. Sanitary districts6 may be created upon petition
of fifty-one percent of the freeholders in the proposed dis-
trict to the State Board of Health.7 Metropolitan sewerage
districts may be created by any county, municipality, or com-
bination thereof.8 Finally, water and sewer authorities may
be created by any combination of two or more municipalities.9
All of these agencies may also use special legislation which
was passed covering all sanitary sewerage systems in the
state.10 Whenever this legislation proves to be more expan-
sive than that provided for a given system it is cited instead
of the system's statute.
1.2 Schematic Diagram of Existing Agencies
Department of Natural and Economic Resources
Board of Water and Air Resources
Water Control Advisory Council
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c) (2) (C)] .
All counties and municipalities may "construct, reconstruct,
improve, extend, enlarge, equip, repair, maintain and operate. .
any sanitary sewerage system" either together or separately.12
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
Metropolitan sewerage districts and water and sewer authorities
may apply for and receive funds from any source.13 While no
such provision exists for sanitary districts there is no pro-
hibition against receiving funds.
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208(c)(2)(E)].
All county and municipal sewerage systems may raise revenues
by collecting reasonable rates.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)] .
Each category of user is assured equal treatment since reason-
able rates must be imposed among the same service class.15
2.3.2 Full Recovery Will Be Had from the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works Reason-
ably Attributable to Treatment of Such Industrial
Wastes. [§204 (b) (1) (B)] .
Sanitary districts and water and sewer authorities may charge
industrial users under their respective rate sections.16 Metro-
^olitan sewerage districts have no such authority. However,
the general user charges mentioned in 2.3.1 should permit
these districts to make similar charges.
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2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F) ] .
All three systems may issue some form of bonds. These bonds
will be subject to the provisions of general statutes, Chapter
159, after 1 July 1973. This chapter's provisions have been
included, wherever relevant, in the discussion below.
2.4.1 General Obligation Funding.
Sanitary districts and metropolitan sewerage districts have
taxing powers and may issue general obligation bonds.17 These
bonds must pledge the authority's faith and credit18 and may
be additionally served by revenues.19 Voter approval of L'~2se
bonds is mandatory unless the bonds are for no more than two-
thirds of the amount by which the outstanding general obliga-
tion bonded debt has been reduced.20
2.4.2 Special Funds and Revenue Funding.
Revenue bonds payable solely out of the agencies' revenues
may be issued by all systems.21
2.4.3 Other Methods of Financing
No other method of financing is available.
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c) (2) (G)] .
Any group of municipalities and/or counties may combine, by
agreement, to form one of the three systems. This combina-
tion would apportion costs of construction and operation ac-
cording to a method which is mutually acceptable.22 This power
should assure proper apportionment of costs among those communi-
ties which adopt a joint sewerage system.
2.6 Authority to Refuse to Receive Any Wastes From Any Munici-
pality or Subdivision Thereof, Which Does Not Comply With
Any Provisions of an Approved Plan Under §202 Applicable
to Such Area. [ §208 (c) (2) (H) ] .
No provision permits such a refusal. Thus, since refusing to
accept a community's wastes might constitute a serious health
hazard, probably no system would be able to refuse absent some
specific legislative authorization.
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2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
User hook-ups can most likely be denied by all systems by using
their rule-making powers.23
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
All persons, firms or corporations which violate any regula-
tion of any sewer system are liable for a fine of up to $500
and a thirty day jail sentence. 2l* They are also liable for
any damage to the system caused by a non-complying discharge.25
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c)(2)(I)].
All systems may accept sewage waste from industrial sources.26
These wastes may be regulated by the rules and regulations
promulgated by the system involved; thus, the wastes may be
refused whenever necessary.
3.0 SUMMARY
North Carolina should have little difficulty in obtaining
funds for its sewage systems.
4.0 BIBLIOGRAPHY
1. Poole, Henry E., The Laws Relating to Abatement and Control
of Water and Air Pollution in North Carolina, 3 N.C. Cent.
L. Rev. 31 (1971) .
2. Wicker, Warren J., Arrangements for Water and Sewage Ser-
vices, University of North Carolina Institute for Government
(1966).
FOOTNOTES
1. Gen. Stat. N.C. Ann. §143-211 et seq. (Supp. 1971).
2. Gen. Stat. N.C. Ann. §143-214.1 (Supp. 1971).
3. Gen. Stat. N.C. Ann. §143-215.2 (Supp. 1971).
4. i'en. Stat. N.C. Ann. §143-215.1 (Supp. 1971).
5. \ .e Water Control Advisory Council, Gen. Stat. N.C. Ann.
§143-214(j) (Supp. 1971).
- 222 -
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6. Gen. Stat. N.C. Ann. §130-123 et seq. (1964).
7. Gen. Stat. N.C. Ann. §130-124 TSupp. 1971).
8. Gen. Stat. N.C. Ann. §153-295 et seq. (1964).
9. Gen. Stat. N.C. Ann. I162A-1 et seq.
10. Gen. Stat. N.C. Ann. §153-284 et. seq. (1964) .
11. Gen. Stat. N.C. Ann. §153-284 (1964).
12. Gen. Stat. N.C. Ann. §153-287 (1964).
13. Gen. Stat. N.C. Ann. §§153-300(13) (1964), 162 A-6(13)
(1972) .
14. Gen. Stat. N.C. Ann. §153-286 (1964).
15. Id..
16. The sanitary District Act provides that rates may be
passed on the exact benefits which a user derives from
the system N.C. Gen. Stat. §130-144 (1964). The North
Carolina Water and Sewer Authorities Act permits charg-
ing users "rates . . . for . . . facilities furnished."
N.C. Gen. Stat. §162 A-6 (9) (1972).
17. N.C. Gen. Stat. Ann. §§130-138, 153-301 (1964).
18. N.C. Gen. Stat. Ann. §159-46 (1972) (eff. 1 July 1973).
19. N.C. Gen. Stat. Ann. §159-47 (1972) (eff. 1 July 1973).
20. N.C. Gen. Stat. Ann. §159-49 (1972) (eff. 1 July 1973).
21. N.C. Gen. Stat. Ann. §§130-138 (1964) 155-310 (Supp. 1971)
162A-8 (1972) .
22.
23.
24.
25.
26.
N.C.
N.C.
Id.
Gen.
Gen.
Stat.
Stat.
Ann.
Ann.
§153-287 (1964) .
§153-286.1 (Supp.
1971)
Id.
N
.C.
Gen.
Stat.
Ann .
§ §1
30-125,
15
3-296
(10)
i
162A-2 (81
- 223 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
SOUTH CAROLINA REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
In South Carolina, the agency in charge of abating pollution is
the Pollution Control Authority (P.C.A.).1 It is a separate
state agency with broad powers over planning, standard setting,
regulations, enforcement, and grant management.2 More speci-
fically, the P.C.A. has among its powers the authority to
prepare and develop a comprehensive program for the abatement,
control, and prevention of water pollution,3 and to adopt
standards which determine what qualities of water indicate
a polluted condition.4 The P.C.A. can also issue orders
requiring the discontinuance of discharges of sewage and
industrial wastes, issue or revoke permits for construction
and operation of disposal systems, and inspect disposal systems
to determine if they comply with standards.5 Enforcement
procedures include instituting legal proceedings seeking
injunctions, administering penalties, and prohibiting a
municipality found in violation from issuing any building
permits.6
A general prohibition of pollution forbids any person, corpo-
ration, agency, municipality or other legal entity to will-
fully or negligently discharge into any state waters any
matter that causes pollution.7
Violation of the regulations or statutes prohibiting pollution
can result in an order from the P.C.A. requiring discontinuance
of the practice.8 Such an order may be issued after giving
the violator a reasonable time to comply with the standards.9
Appeals are allowed to the court of common pleas of the county
in which the pollution occurs.l° All legal proceedings are
handled by the state Attorney General.11 Penalties for viola-
tions range from a $100 fine to a $5,000 fine, or up to two
years imprisonment, or both.12 Each day of violation is deemed
a separate offense.13
The functions of actual construction and operation of waste-
water treatment facilities are performed at the local level
by municipalities and districts. Municipalities empowered
to operate and construct treatment works include counties,
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townships, cities, towns and other political subdivisions. "*
These functions can also be handled by special districts
which may be within one county or several counties . In
addition, all governmental entities are authorized to cooperate
and join together to provide for common collection, disposal,
and treatment of sewage.16 This in effect authorizes regional
or areawide districts enabling any governmental entity to
contract with any other for these services . l 7
1.2 Schematic Diagram of Existing Agencies
SOUTH CAROLINA
POLLUTION CONTROL AUTHORITY
EXECUTIVE DIRECTOR
ADMINISTRATIVE SERVICES
PUBLIC INFORMATION
PLANS AND ADP
WATER POLLUTION CONTROL DIVISION |
COMPLIANCE
BRANCH
MONITORING
BRANCH
DISTRICT 1
GREENVILLE
DISTRICT 2
LANCASTER
LABORATORY
SERVICES S.R.
ENGINEERING
BRANCH
DISTRICT 4
CHARLESTON
DISTRICT 5
COLUMBIA
PROPOSED
AIKEN
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Construct
Nexv Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c) (2) (C)] .
All municipalities have express authority to "construct, ac-
quire, own, equip, operate, maintain, enlarge, extend, or
increase" sewers and disposal systems.18 Special districts
also have the power to construct and operate such systems,
either directly or by contract.19 In addition, those entities
joining together to form regional districts are empowered
to construct, operate, and maintain treatment facilities
as required by the act.20
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
All local government units have the statutory authority to
apply for and receive state and federal grants.21
Powers are also vested in the P.C.A. to accept, receive and
administer grants or other funds for pollution abatement
purposes.22 There is no statutory prohibition on the P.C.A.
which would prevent diversion of funds or grants received for
projects. Indeed, the agency has the express power to aporove
local projects for which applications for federal grants are
made.23 Some measures would seem necessary here to prevent
diversion of funds unless the terms of the grant prohibit
diversion.
2.3 Authorit ' to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208(c) (2) (E)] .
Express authority to establish rates and charges is held by
all local agencies responsible for operation of treatment
facilities.24
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)] .
Although there is no express authority to charge users proportion-
ately according to the characteristics of their effluents,
- 227 -
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this power is not prohibited, and it might be implied from
some of the express powers of the agencies. For example,
municipalities have the authority to compute rates sufficient
to service the bond debt, pay expenses of operation and main-
tenance, and build up a reserve fund for improvements.25
Rates based on characteristics of effluents certainly would
not be inconsistent with these express powers.
Special di.itricts are empowered to charge "just and equitable
rates."26 This would imply that proportionate charges would
not be prohibited.
When local units combine to form a regional district, the
parties may pay according to their quantum of use,27 and
may charge individual users within their boundaries a rate
sufficient to pay the costs of operation and maintenance.28
This could be construed to include the power to charge pro-
portionately based on the characteristics of the effluent.
2.3.2 Full Recovery Will Be Had from the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works
Reasonably Attributable to Treatment of Such
Industrial Wastes. [ § 204 (b) (1) (B) ] .
None of the local agencies has the express powers necessary
to comply with this provision. The powers may be present
by implication from the total powers held by these agencies.
For example, if the grant by the EPA creates an obligation
on the part of the local agency to abide by the terms of the
grant agreement, then this provision could be included in the
power of the local agencies to set rates sufficient to service
the debt.29
In addition, there is express authority for special districts
and municipalities to recover the costs of constructing
treatment facilities by imposing front-footage assessments
against properties abutting the sewage collection laterals.30
This could include recovering construction costs from industrial
users as well, but it would most likely not bear any relation
to the cost to be recovered from a particular industry.
2.4 Authority to Incur Short- and Long-term Indebtedness
[§208(c) (2) (F)] .
Mone of the local agencies has the express statutory power to
incur short-term indebtedness. The legal ability may be implied,
- 228 -
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however, from the agencies' power to incur long-term indebtedness
discussed in sections 2.4.1 and 2.4.2. The necessary authority
could also be inferred from the power of the local agencies
to enter into contracts for construction.31
2.4.1 General Obligation Funding.
Municipalities in South Carolina are vested with the authority
to issue general obligation bonds backed by the full faith
and credit of the particular political subdivision.32 The
limitations on these bonds are that they must pass a majority
vote of the electors,33 they must mature within forty years,34
and the interest rate must be determined by the municipal
council.3 5
Special districts "may issue and sell serial coupon bonds for
and in behalf of the township within which the district is
located."36 Such bonds must mature within forty years and
bear interest at a rate not more than six percent.37 The
bond issue must be approved by a majority of the electors of
the district.38
Governmental entities cooperating in a regional district are
empowered to issue general obligation bonds.39 Special districts
which enter into such a regional district are expressly
authorized to issue general obligation bonds as set forth
in the County Bond Act.40 Bonds authorized by the County Bond
Act must mature within twenty-five years and bear interest
at a rate previously determined.41
2.4.2 Special Funds and Revenue Funding.
Revenue bonds may be issued by any municipality in order to
finance the construction or improvement of wastewater treat-
ment systems.42 The rate of interest of these bonds cannot
exceed six percent, and they must mature within forty-five
years.4 3
Special districts also have the authority to issue revenue
bonds, at least where the district has borrowed funds from
the United States.44
Those local government units forming regional districts are
likewise empowered to issue revenue bonds as well as general
obligation bonds.45
2.4.3 Other Methods of Financing.
All local agencies empowered to collect, treat and dispose
- 229 -
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of sewage are able to enter into assistance agreements with
the State Budget and Control Board for grants of state funds.46
Such grants are to be repaid by means of a special service_
charge to users of the wastewater system as well as a special
property tax.1*7
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208(c)
(2) (G)] .
Compliance with this provision should be no problem in South
Carolina as the local agencies have both express and implied
powers to charge communities proportionately.
Municipalities' powers in this area are implied. All
municipalities have the authority to unite in joint projects
with each other,48 and from this it is reasonable to assume
that the terms of the agreement could establish proportionate
rates. In addition, cities and towns have the express power
to enter into contracts with political subdivisions outside
their corporate limits for sewage treatment systems.49 They
can do so "upon such terms and at such rates and charges as
may be fixed by the contract or agreement between the parties."50
Special districts also have implied powers to charge proportion-
ately. This stems from their authority to contract and connect
with existing sewerage systems of municipalities or other
districts.51 It is reasonable to imply that such contracts
could provide for proportionate rates.
There is express statutory authority for communities joining
a regional district to pay proportionate rates.
Such contracts may provide that each contracting party shall
pay a portion of the cost of operating and maintaining
such sewer facilities and shall either provide that each
contracting party shall pay a specified percentage of
such operation and maintenance, or shall provide that
the use of the sewer facilities be ascertained by metering
or other device measuring the quantum of the use of each
contracting party as a means of providing the share of
the cost of operation and maintenance, and the parties
may agree to periodic review and revision of such costs.52
- 230 -
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2.6 Authority to Refuse to Receive Any Wastes from -Any
Municipality or Subdivision Thereof, Which Does Hot
Comply with Any Provisions of an Approved Plan Under
§202 applicable to Such Area. [§208(c) (2) (H) ] .
Municipalities and special districts lack any express authority
to cut off service to non-complying municipalities, although
a provision to this effect might be included in an agreement
for joint operation of a treatment system.
The necessary powers could be implied for regional districts
because the statute provides that the agreements between the
political subdivisions may be enforced by specific performance,
injunction, or mandamus.5"^ Therefore, if the provisions of
the approved plan are made part of the agreement between local
units, it is reasonable to assume that a municipality could
be enjoined from violating the provisions.
In addition, the P.C.A. has authority at the state-wide level
due to its control over the permits required for constructing
new outlets or discharging from the same.54 Permits are also
required to construct, change or increase the volume of a
disposal system.55 These permits contain conditions of use,
and it is unlawful to violate the conditions.56
2.6.1 Authority to Deny New or Additional "Hook-ups"
(Moratorium Effect).
There is no statutory authority for any of the local agencies
to deny new or additional hook-ups to their systems. This
power is not expressly prohibited either, so it could reasonably
be part of a unit's general authority over waste disposal
matters or provided for in an agreement between two units.
On a state-wide scale, the P.C.A. has the necessary authority
to deny new hook-ups due to its permit-issuance powers and
its power to prohibit a municipality from issuing building
permits.57
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply with the
Areawide Plan.
Municipalities and special districts do not have the express
power to assess municipalities or take similar sanctions against
those not in compliance. Regional districts also lack the
necessary powers, although they are able to enforce the terms
of their contracts with the local units by specific performance,
injunction, or mandamus.58
- 231 -
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The P.C.A. does have express authority in this area as it can
administer penalties, revoke discharge permits and even pro-
hibit a municipality from issuing any building permits.5
2.7 Authority to Accent for Treatment Industrial Wastes.
[§208(c) (2) (I) ] .
Express authority exists for all local agencies to accept and
treat industrial wastes. The definition of the term "sewage"
includes industrial wastes in each case.60
Implied authority can be found for recmiring pretreatment of
industrial wastes as well. Municipalities are authorized to
enact any rules and regulations necessary for "maintenance,
operation, protection, use, control, and repairing of its
system."61 Special districts also have the legal ability to
make and enforce regulations regarding the use of sewage.
facilities.62 In regional districts, the necessary authority
to require pretreatment might be implied from their power
to maintain their facilities.63
3.0 SUMMARY
Legislation exists in South Carolina to enable the state
to comply with most of the provisions of the act. The state
agency, the P.C.A. , is vested with very strong powers over
regulation, planning, standard setting, and enforcement.
The local agencies in charge of the actual construction and
operation of treatment facilities are likewise endowed
with the statutory authority to comply with most parts of the
act. Most notable here is the authority for any local govern-
mental entity to cooperate with other such entities in joint
waste disposal and treatment projects. This authorizes some-
thing very near the area-wide districts called for by the act,
There are some deficiencies, but most of them concern areas
of the law where powers are merely implied rather than being
expressly granted. New legislation would clear up these
deficiencies by expressly granting the local agencies all
necessary powers.
3.1 Deficiencies
The most troublesome deficiency in South Carolina concerns
the lack of authority to refuse to accept wastes from a non-
complying municipality. No express authority exists here,
and the implied authority present is tenuous. In addition,
the power of local agencies to deny new hook-ups or assess
penalties to violators is even more remote. New legislation
- 232 -
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should be enacted to remedy this entire area by giving the
express powers needed.
Other powers that are merely implied rather than expressly
granted include the power to charge proportionate rates to
users, to recover certain capital construction costs from
industries, and to incur short-term indebtedness. While these
powers may be reasonably implied to exist, they nonetheless
should be expressly granted to the agencies by the legislature,
Another problem is the possibility that the P.C.A. can divert
grants of funds intended for local projects. A provision
should be added by the legislature barring such a diversion.
4.0 BIBLIOGRAPHY
1. Fisher and Gaston, Pollution Control Practice in South
Carolina An Overview, 23 S. Car. L. Rev. 723 (1971).
1.
2.
3.
4.
S.
S.
Id
S.
C
C
Ğ
C
. Code
. Code
. Code
Harper v.
5.
6.
7.
3.
9.
10.
11.
12.
13.
14.
15.
16.
17.
13.
19.
20.
21.
22.
23.
2d
S.
Id
S.
S.
Id
S.
S.
S.
Id
S.
S.
S.
C
C
C
.
C
C
C
C
C
C
See
S.
S.
S.
S.
S.
Id
C
C
C
C
C
284 (19
. Code
. Code
. Code
. Code
. Code
. Code
. Code
. Code
. Code
Ann.
Ann.
Ann.
§
§
§
63-19
63-19
63-19
5
5.
5.
(Cum. Supp. 19
8
7
Schooler,
72) .
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
S.C. Code
. Code
. Code
. Code
. Code
. Code
Ann.
Ann .
Ann.
Ann.
Ann.
§
§
§
§
§
§
63-19
63-19
63-19
63-19
63-19
63-19
5.
5.
5.
5.
5.
5.
§59-363
§
§
59-601
59-50
7.
8
12
16
23
24
35
(Cum.
(Cum.
S.
(Cum.
(Cum.
(Cum.
(Cum.
(Cum.
(Cum.
Supp.
Supp.
C. "
Supp.
Supp .
Supp.
Supp.
Supp.
Supp .
71) .
1971) .
1971) . See also
, 189 S.E.
1971) .
1971) .
1971) .
1971) .
1971) .
1971) .
(1962) .
(1962) et. sea.
1
Ann. Title
§59-369
§
§
§
§
59-609
59-50
63019
63-19
7.
5.
5.
(Cum.
Supp.
59, Art. 10
1971) .
.3 (Cum. Supp. 1
(1962) .
(1962) .
1
76
8
( Cum .
(Supp
(Cum.
Supp .
1971) .
. 1972) .
Supp.
1971) .
1971)
- 233 -
-------
24.
25.
26.
27.
28.
29.
See
S.C
S.C
for
S.C
S.C
S.C
S.C
S.C
S.C. Code Ann. §59-
. Code Ann. §59-612
. Code Ann. § §59-507
regional districts.
. Code Ann. §59-397
. Code
. Code
. Code
. Code
Code Ann.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40 .
S.C
See
S.C
S.C
dis
S .C
S.C
S .C
S.C
S.C
S.C
S.C
S.C
The
. Code
S.C.
. Code
. Code
tricts
. Code
. Code
. Code
. Code
. Code
. Code
. Code
. Code
Ann. §
Ann. §
Ann . §
Ann . §
§59-50
Ann. §
59-612
59-507.
59-507.
59-397
397 (19
(1962)
.4, 59
(1962)
(1962)
3 (Cum
5 (Cum
(1962)
62) for
municipalities ,
for special
-507.5 (Cum.
.
.
.
Supp .
Supp.
1971)
1971)
districts, and
Supp. 1971)
.
.
for municipalities , S.C.
7.5 (Cum. Supp
§59-495
Code Ann. §59-
Ann. §
Ann . §
.
Ann. §
Ann . §
Ann. §
Ann . §
Ann. §
Ann . §
Ann. §
Ann . §
County Bond
59-609
59-507.
^7-834
47-838
47-844
^7-848
59-616
59-617
§59-618
59-507.
Act is
, 59-50
486 (19
(1962)
1 (Cum
(1962)
(1962)
(1962)
(1962)
(1962)
(Cum.
, 59-6
3 (Cum
found
. 1971)
1 (Cum.
62) for
for
Supp
reaional districts
. 19
71) .
municipalities ,
for special
.
.
.
.
.
SUPp.
et. seg
Supp. 19
1971)
.
71) .
districts, and
for
regional
19 (1962) .
.
Supp.
at S.C.
1971)
Code
.
Ann.
§ §14-517
to
14-528 (1962)
41.
. £. .
46.
47.
48.
49.
50.
51.
52.
53.
54.
55 .
56.
57.
58.
59 .
60.
S.C.
S.C.
S.C.
c r
O . \^f .
S.C.
See
See
S.C.
c; p
i_) * \_*
S.C.
Id.
S.C.
S.C.
S.C.
S.C.
S .C.
Id.
S.C.
Supp
S.C.
S.C.
See
for
(Cum
Code Ann. §§14-517, 14-521 (1962).
Code Ann. §59-379 (1962).
Code Ann. §59-382 (1962).
Code Ann. §59-622 (1962).
Code Ann. §§59-507.2, 59-507.3 (Cum. Supp. 1971).
also S.C. code Ann. §59-507.12 (Cum. Supp. 1971).
S.C. Code Ann. Title 63, Chap. 2 . 3A (Supp. 1972).
Code Ann. §63-195.76 (Supp. 1972).
Code Ann. §59-366 (1962).
Code Ann. §59-491 (1962).
Code Ann. §59-609 (1962).
Code Ann. §59-507.3 (Cum. Supp. 1971).
Code Ann. §59-507.11 (Cum. Supp. 1971).
Code Ann. §63-195.13 (Cum. Supp. 1971).
Code Ann. §63-195.14 (Cum. Supp. 1971) .
Code Ann. §§63-195.13, 63-195.14; §6^-105.3 (Cum
. 1971) .
Code Ann. §59-507.11 (Cum. Supp. 1971).
Code Ann. §64-195.8 (Cum. Supp". 1971).
S.C. Code Ann. §§59-502 for municipalities, 59-496
special districts, 59-507 for regional districts
. Supp. 1971) .
- 234 -
-------
61. B.C. Code Ann. §59-493 (1962).
62. S.C. Code Ann. §59-497 (Cum. Supp. 1971).
63. S.C. Code Ann. §59-507.1 (Cum. Supp."1971)
- 235 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
TENNESSEE REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Tennessee manages part of their water resources through their
health department. Authority is divided, however, between
the Tennessee Department of Public Health and the newly re-
named Water Quality Control Board.
The Water Quality Control Board performs the state's water
quality planning and sets standards.1 Prosecution of pol-
luters and the task of issuing discharge permits are left to
the commissioner of the Department of Public Health.2 It is
presumed that the statute implies that this is a function of
the health department since the director of the department's
division of water quality may be delegated the commissioner's
functions.3 The health commissioner also handles all waste
discharge monitoring.^ Appeal jurisdiction has been granted to
the board over all matters relating to permits and discharges.5
Reversals may be rare, however, since the health commissioner
is also the Water Quality Control Board's chairman.6
The functions of sewage collection and treatment are handled
by county and municipal sewerage systems.7 Both of these
systems may become regional by accepting another area's sew-
age . 8
- 237 -
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1.2 Schematic Diagram of Existing Agencies
Department of Public Health
Bureau of Environmental
Health Services
Division of Water Quality Control
Program Planning
Lab Section
Planning and Standards Section
Administrative Services
Waste Treatment Section
Monitoring and Enforcement Section
Regional Offices
- 238 -
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND SE-
LECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c)(2)(C)].
Both counties and municipalities may own, operate, construct
and maintain their own sewerage systems.9
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c)(2)(D)].
Neither counties nor municipalities have specific statutory
authorization to apply for and receive federal funds. Only
the Department of Public Health is expressly assigned the
duty of applying for and receiving federal grant money.10
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [ §208 (c) (2) (E)] .
Counties and municipalities may raise revenues by imposing
charges on users.11 The methods of charging users are left
to the individual authority's determination.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)] .
Municipal sewer systems must "establish and maintain just and
equitable rates and charges."12 No such mandate is given
county sewerage systems, although they may calculate rates
so as to insure fiscal solvency.13 Thus rates based on the
composition of the user's effluent, while not expressly author-
ized, are not expressly prohibited.
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [§204 (b) (1) (B)].
No express provision authorizes recovery of the federal portion
- 239 -
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of construction costs for industrial users' portions of treat-
ment works.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)] .
Both counties and municipalities may incur some form of long-
term construction indebtedness.
2.4.1 General Obligation Funding.
General obligation bonds may be issued only by counties.
These bonds are not subject to debt limitations and may be
made for periods of up to forty years.14 Unless ten percent
of the qualified voters petition the issuing county's govern-
ing board to protest the issue, the governing board may ap-
prove any form of bond issue. Should such a petition be veri-
fied, an election must be held and the issue approved by
majority vote before the proposed bonds may be issued.1
2.4.2 Special Funds and Revenue Funding.
Revenue bonds may be issued by both counties and municipali-
ties. Municipal bonds may be issued upon majority vote of
that municipality's governing body.16 Counties arrange for
issuing all bonds according to the method mentioned in para-
graph 2.4.1
2.4.3 Other Methods of Financing.
Counties are also provided with one further method of debt
financing in that they may issue bonds which may be repaid
from revenues of a specified public utility or any combination
of a group of such public utilities.17
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c) (2) (G)] .
Municipalities and counties are granted the statutory author-
ization to join together into regional treatment agencies.
They are given, however, different mandates in this regard.
Municipalities may join together whenever such a joint ven-
ture is considered "feasible."18 On the other hand, counties
may band together "upon terms deemed advantageous by the [sew-
age system's board]."19 The statute for municipalities, thus,
- 240 -
-------
remains silent on the question of assuring equal, proportionate
treatment of each participating communities so that proportion-
ate charges are levied against each one. The county statute
appears to permit unequal treatment. "Terms deemed advanta-
geous" to the controlling community might quite possibly be
discriminatory against the other communities. If, however, the
participating communities agree to the proportion each is to
bear this should meet the Act's requirement.
2.6 Authority to Refuse to Receive Any Wastes from Any Munici-
pality or Subdivision Thereof, Which Does Not Comply With
Any Provisions of an Approved Plan Under §202 Applicable
to Such Ara. [§208(c) (2) (H)] .
No treatment agency is authorized to refuse to receive a com-
munities non-complying wastes. Thus, since this is an excep-
tionally harsh remedy, legislation would be required.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
Such a moritorium effect is not permitted by statute.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
No further sanctions are expressly authorized by statute.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
Both county and municipal authorities may handle industrial
waste.20 No agency has been given statutory sanction to pre-
vent non-conforming industrial waste discharge, but such author-
ity is implied to protect the plant's sewage treatment processes
from potential damage.
3. 0 SUMMARY
Tennessee can comply with most of the provisions of the Act.
The areas of deficiency are described in paragraph 3.1. Most
of the problems cited below stem from statutory ommisslons
i.e. lack of express statutory authority.
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3.1 Deficiencies
1. Re 2.2 Both county and municipal sewerage authorities
should be permitted to receive and apply for federal
funds. This is not specifically disallowed, but no sta-
tute expressly permits the reception of grants.
2. Re 2.3, 2.3.1, 2.5.2 In order to comply with the Act,
specific legislation should be enacted to assure that
each category of user in the service community pays its
proportionate share of costs. This is impliedly assured
in municipal sewage systems, but may not be the case in
county systems.
3- Re 2.5 The county statute should be amended so that it will
require that each community will bear its proportionate
share of the treatment costs.
4. Re 2.6 No statutory sanctions are provided to permit au-
thorities to punish or prevent municipalities from dis-
charging non-conforming wastes. Legislation would be neces-
sary to provide an agency with the power to cut off a
municipality's waste treatment privleges.
4.0 BIBLIOGRAPHY
1. Juergensmeyer, The Tennessee Water Quality Control Act of
1971 A Significant New Environmental Statute, 52 Vand
L. Rev. 323 (1972).
2. Tenn. Dept. of Pub. Health, General Regulations of Tennessee
Water Quality Control Board (Feb. 1, 1972).
3. N. Hines, Public Regulation of Water Quality in the United
States, (1971).
FOOTNOTES
1. Tenn. Code Ann. 70-328(a), (c) (Supp. 1972).
2. Tenn. Code Ann. 70-329, 70-330(b) (Supp. 1972).
3. Tenn. Code Ann. 70-329 (n) (Supp. 1972).
4. Tenn. Code Ann. 53-2002 (1966) .
5. Tenn. Code Ann. 70-328(f) (Supp. 1972). See Juergensmeyer,
The Tennessee Water Quality Control Act of 1971 A Sig-
nificant New Environmental Statute, 25 Vand. L. Rev. 323,
327 (1972). ~
6. Tenn. Code Ann. 70-327 (Supp. 1972).
- 242 -
-------
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
Tenn.
Tenn.
Tenn.
Tenn.
Tenn.
Tenn.
Tenn.
Tenn.
Tenn.
Tenn.
Tenn.
Tenn.
Tenn.
Tenn.
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
5-1601 et seq., 6-1401 et seg.
§§5-16077 6-1404 to 07 7T971).
§§5-1601, 6-1408 (1971) .
§70-329(1) (Supp. 1972).
§§5-1609, 6-1421 (1971) .
(1971) .
(1971).
5-1112 (1971).
5-1025 (1971).
6-1427 (1971).
(1971) .
to 1407
(1971)
§6-1421
§5-1609
§§5-1104,
§§5-1024,
§§6-1309,
§5-1606
§6-1404
(1971)
§5-1606 (1971).
§§6-1102(d), 6-1403(1) (1971)
- 243 -
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REGION v
-------
PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
ILLINOIS REPORT
(1972)
1.0 OVERVIEW
1.1 Description'of Existing Agencies
Water pollution control in Illinois has recently been reor-
ganized and consolidated by the Illinois Environmental Protec-
tion Act of 1970J (hereinafter known as the Illinois Act).
Control remains within the executive branch, but is now divided
among three distinct bodies which cooperate and compete with
each other viz a_ viz the power and duty to enforce pollution
control laws and regulations.2 The three bodies are:
1. Pollution Control Board (the Board);3
2. Illinois Environmental Protection Agency (Illinois EPA);1*
3. The Illinois Institute for Environmental Quality.5
The Board consists of five members who are appointed by the
governor with the advice and consent of the Senate.6 All
Board meetings are open to the public and, according to the
Illinois Act, it has the following powers and duties:
1. adopt rules and regulations necessary for the implemen-
tation of the Illinois Act,7
2. hearing and adjudication authority on complaints charging
violations,8
3. prescribe standards for issuance of permits for construc-
tion, installation, or operation of sewage treatment
facilities,9
4. adopt, waste treatment facility performance standards,
i o
5. prescribe standards for the definition and certification
of the technical competency of operation personnel for
sewage works,11
6. authority to act for the State in regard to the adoption
of standards for submission to the United States under
any federal law respecting environmental prelection.12
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The Illinois EPA is composed of the previous divisions of sani-
tary engineering and laboratories within the Department of
Public Health. The Illinois EPA is headed by its Director
who is appointed by the Governor with the consent of the Senate.14
Its primary responsibilities are as follows:
1. surveillance of water quality and investigation of viola-
tions of rules and standards;
2. prosecute enforcement cases before the Board;
3. issuance of permits for wastewater treatment works;
4. administer and give grants of federal and state funds to
communities to build wastewater treatment works;
5. inititate rule-making hearings before the Board and rec-
ommend standards;
6. designee as the water pollution agency for the state for
all purposes of the Federal Water Pollution Control Act,
as amended, and is authorized totake all action necessary
or appropriate to secure to the State the benefits of
such act.15
The Illinois Institute for Environmental Quality is the third
branch of this system and is headed by a Director who is ap-
pointed by the Governor.16 Its primary duties are to conduct
long range planning and applied research and as the Illinois
Act states:
It shall be the duty of the Institute to investigate
practical problems and implement studies and programs
relating to the technology and administration of en-
vironmental protection, to obtain, store, and process
relevant data, and to recommend technological, admin-
istrative, and legislative changes and developments
respecting environmental quality and re-cycling, re-
use and conservation of natural resources and solid
wastes.:7
The instutite plans to do scientific, economic , legal and en-
gineering research, as well as urban and rural land use and
waste management planning.18
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Enforcement is the primary responsibility of the Illinois EPA,
which prosecutes cases before the Board. However, the State's
Attorney General, as well as any of the state's attorneys, may
also assume this role and may prosecute polluters either before
the Board or in Circuit courts.20 Private citizens may also
institute actions before the Board or in the lower courts.
The latter action was recently guaranteed by an amendment to
the Illinois Constitution, which grants everyone standing in
the lower courts to sue anyone public or private -- to pro-
tect his individual right to a "healthful environment."21
Appeals from Board decisions are made in the Illinois appel-
late court upon the basis of the Board's record, and the Attor-
ney General represents the Board in appellate court.22
Management authority is generally atomized and is controlled
and carried out at the local level. Municipalities may control
their own local system,23 two or more cities may acquire and
jointly operate sewage disposal systems,21* sanitary districts
may be incorporated to carry out this function,25 or it can
be performed by the county boards with service extending
throughout the county.26
There are various types of sanitary districts. Two are spe-
cifically created by statute, and they are the Chicago Sani-
tary District27 and the North Shore Sanitary District.28
There are four other types of sanitary districts which may
be formed in Illinois, and for the purposes of this report
they will be called type I, type II, type III and type IV
sanitary districts.
Type I sanitary districts may be formed as follows:
Whenever any area of contiguous territory within the
limits of two counties, having within its limits two
or more incorporated cities or villages, and an ag-
gregate population of not less than 3,500 inhabitants,
shall be so situate as to be subject to overflow
from any river 'or tributary thereof, and the mainte-
nance of one or more levees for the protection of the
same against such overflow, and of a new and improved
outlet for the drainage thereof, will conduce to the
preservation of the public health and safety. The
same may be incorporated as a sanitary district.29
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Type II sanitary district may be formed as follows:
Whenever any area of contiguous territory shall con-
tain one or more incorporated cities, towns or vil-
lages or parts of one or more incorporated cities,
towns or villages, and shall be so situated that the
construction and maintenance of a plant or plants for
the purification and treatment of sewage and the
maintenance of one or more outlets for the drainage
thereof, after having been so treated and purified
by and through such plant or plants will conduce to
the preservation of the public health, comfort and
convenience, the same may be incorporated as a sani-
tary district.30
Type III sanitary districts comprise areas having a population
of less than 500,000 inhabitants.31
Type IV sanitary districts are regulated by the "Sanitary Dis-
trict Act of 1936" 32 and m'ay be organized within any area of
contiguous territory within the limits of a single county and
without the limits of any city, village or incorporated town.33
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1.2 Schematic Diagram of Existing Agencies
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
GOVERNOR
COORDINATOR OF
ENVIRONMENTAL QUALITY
ENVIRONMENTAL QUALITY
COUNCIL
ENVIRONMENTAL PROTECTION AGENCY
Pollution Control Board
Institute of
Environmental Quality
Agency Director
Deputy Director
1 1
Air Pollution
Control
Water Pollution
Control
X,
\
|
Public Water
Supply
1
Land Pollution
Control
LOCAL MANAGEMENT AGENCIES
Noise Pollution
Control
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and
Construct New Works and to Operate and Maintain New and
Existing Works as Required by any Areawide Plan. [§208(c)
(2) (C)].
All of the management agencies under consideration possess the
express statutory authority needed to assure compliance with
this provision.3
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
None of the local management agencies possess the express
statutory authority to accept and utilize grants, or other
funds from any source. However, the Illinois EPA is vested
with the express authority to accept, receive and administer
on behalf of the State any grants, gifts, loans or other funds
made available to the state from any source for the purposes
of water pollution control.35
2.3 Authority to Raise Revenues, including the Assessment
of Waste Treatment Charges. [§208(c) (2) (E)].
All management agencies possess the authority to raise revenues
for the purpose of operating and maintaining such works.36
Such revenue raising plans may include, but are not limited to,
taxing by ordinance and the issuance of special assessments
against benefited property-37
2.3.1 Each Category of User will pay Its Proportionate
Share of the Costs of Operation and Maintenance
(including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1)(A)].
In Illinois, none of the local management agencies are directed
or required to base their system of rates and charges on such
characteristics s volume, composition or delivery flow rate
of effluent disc, rged by users. The statutes merely require,
in most instances, that the agency levy charges sufficient to
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pay the costs of operation and maintenance. Such charges are
to be established either by contract or by ordinance, and the
statutes envision that rates established by ordinance will be
a straight tax charged to all users.38 The only other guidance
or limitation placed upon agencies in this regard is that type
II sanitary districts and the North Short Sanitary District
are directed to establish rates which are fair and reasonable.3
2.3.2 Full Recovery Will Be Had from the Industrial Users
of the Waste Treatment Works of the Federal Por-
tion of the Construction Costs of Treatment Works
Reasonably Attributable to Treatment of Such Indus-
trial Wastes. [§204 (b) (1) (B)] .
In providing for the disposal of industrial wastes, whether
such industrial sewage is disposed of separately or in combi-
nation with other sewage, types II, III and IV sanitary dis-
tricts as well as the North Shore Sanitary District, have the
express statutory power to apportion and collect from the pro-
ducer thereof, fair additional costs for construction over
and above those covered by normal taxes (rates and charges).
This would assure these agencies the power to comply with the
requirements of this provision.
Municipalities, county boards, type I sanitary districts and
the Chicago Sanitary District lack express statutory power in
this regard, and, unless it could be assumed from their powers
of contract, or from their authority to establish rules and
regulations, they probably lack the authority needed to assure
compliance with this provision.
It should also be pointed out that the Illinois EPA could exer-
cise control in this respect by making it a required element
of each local agency's plan and could withhold the needed op-
erating permit until compliance with this provision were as-
sured. 4 l
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)] .
All management authorities have express statutory authority
to finance construction projects in this manner.
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2.4.1 General Obligation Funding
County boards are authorized to issue general obligation bonds
to fund the building of sewage treatment works.1*2 The board
may submit such bond issue for voter approval, but it is not
required to do so.43
Types, I, II and IV sanitary districts may issue such bonds in
an amount up to five percent (5%) of the assessed valuation
of the taxable property involved in the area for a period not
to exceed 20 years. 44 When such bonds are issued the manage-
ment authority must establish an annual tax sufficient to pay
the interest and principal due.1*5 Before issuing such bonds,
an election must be held in which a majority of the votes
cast are in approval of such issuance.46
The North Shore Sanitary District is authorized to issue such
bonds upon receiving voter approval.47 Such bonds may not
amount to more than five percent (5%) of the taxable property
within the area and may be payable for a period not to exceed
twenty years.48 When such bonds are issued the board of
trustees must establish an annual tax sufficient to pay the
principal and interest when due.49
The Chicago Sanitary District may issue twenty year general
obligation bonds up to the amount of five percent of the
assessed valuation of taxable property in the area50 without
any general requirement of seeking voter approval.51 Such
bonds may bear interest at a rate not exceeding six percent
(6%) per annum52 and the district is required to establish
a tax sufficient to pay interest and principal when due.53
Municipalities and type III sanitary districts are not
authorized to issue general obligation bonds.
2.4.2 Special Funds and Revenue Funding.
Municipalities, county boards, type III sanitary districts
and the Chicago Sanitary District are all authorized to issue
revenue bonds which may bear interest at not more than six
percent (6%^per annum and may be outstanding for up to forty
(40) years. In each such instance a sinking fund must be
established to assure payment of interest and principal when
due.
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The North Shore Sanitary District and types I, II, and IV
sanitary districts are not expressly authorized to issue revenue
bonds.
2.4.3 Other Methods of Financing.
County boards and all types of sanitary districts are authorized
to refund bonds if necessary.56
Municipalities and type III sanitary districts are authorized
to borrow money from any source for the purpose of extending,
constructing or improving a sewerage system.57
2.5 Authority to Assure in Implementation of its Waste
Treatment Management Plan that Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c) (2) (G)] .
None of the agencies under consideration are specifically
required by statute to assure that each participating community
pay its proportionate share of treatment costs. However,
in each instance where two or more communities are employing
the same facilities said charges of each are established by
contract and one may assume that compliance will be assured
in this manner.58
It is also possible that the Illinois EPA could assure compliance
with this provision through its permit issuing powers.
2.6 Authority to Refuse to Receive any Wastes from Any
Municipality or Subdivision Thereof, which does Not
Comply with Any Provisions of An Approved Plan Under
§202 Applicable to Such Area. [ §208 (c) (2) (H)] .
The Chicago Sanitary District, the North Shore Sanitary
District, type I sanitary districts and type II sanitary
districts appear to possess the statutory authority needed to
assure compliance with this provision. This power emanates
from the following statutory provision:
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Where any sewer system under the jurisdiction of
a city, village or incorporated town is tributary
to such a sanitary district sewer system, and the
board of trustees of such sanitary district finds
that it will conduce to the public health, comfort
or convenience, the board shall have the power and
authority to regulate, limit, extend, deny or other-
wise control any connection to such sewer tributary
to the sanitary district sewer system by any person
or municipal corporation regardless of whether the
sewer into which the connection is made is directly
under the jurisdiction of the district or not.59
County boards have the authority to discontinue sewerage service
for non-payirent of sewer charges6 ° but probably cannot do
so for noncompliance with the areawide plan without more
specific statutory authorization.
None of the other local management agencies under consideration
have any statutory authorization in this regard and probably
cannot invoke such a severe sanction without such express au-
thorization .
The Illinois EPA may be able to assure compliance with this
provision through its rule and regulation making powers, but
it is speculative in the absence of express statutory authoriza-
tion .
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
All of the management agencies under consideration possess
either the express or implied (
power to perform this function.
either the express or implied (via their powers of contract)
Additionally, the Illinois EPA would be able to fulfill this
function through its permit issuing power.
2.6.2 Authority to Assess Penalties, Surcharges And
Similar Sanctions Against Municipalities or Sub-
divisions thereof which do not Comply with the
Areawide Plan.
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Municipalities and type III sanitary districts both lack any
specific powers in this regard.
County boards may assess a penalty for failure to pay charges
when due except for those due pursuant to contract.
All of the other sanitary districts with the exception of
the Chicago Sanitary District and type III sanitary districts --
have the express statutory authority to invoke fines and
possible even imprisonment for the violation of a sanitary district
order or resolution.63
Violation of the Chicago Sanitary District Act or failure to
comply with an order of the board of trustees may result in
the assessment of a fine. 54
It should also be noted that any person who violates any
provision of the Illinois Environmental Protection Act, or any
regulation adopted by the board or who violates any determin-
ation or order of the board pursuant to the act may be
penalized by imposition of a fine.65
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
All of the management agencies under consideration are vested
with the express statutory authority needed to assure
compliance with the requirements of this provision.66
3.0 SUMMARY
Overall, the Illinois management agencies are endowed with
the majority of the powers needed to assure compliance with
the Act.
The most troublesome aspect of the Illinois statutes regarding
agency powers is the fact that each of the various agencies is
governed by a separate statutory authorization. No agency is
totally capable of complying with the requirements of the Act,
and to complicate matters further the various agencies are often
lacking in differing respects.
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The cause of this patent ambiguity can easily be remedied by
the Illinois legislature. The obvious suggestion would be to
enact a uniform statute governing the operation of all waste-
water treatment agencies. Such legislation should draw upon
the existing powers strewn among the various agencies and
should clearly make such other additions as would be necessary
to assure that all management agencies can comply with the
requirements of the Act.
After passage of such a uniform statute the legislature should
take care to repeal all pre-existing legislation of this type
as it would then be unneeded and would remain only to add
confusion.
3.1 Deficiencies
All local agencies lack express legislative authorization to
accept and utilize grants and other funds from any source, and
legislation would be helpful in this respect. (2.2).
None of the agencies are specifically required or even directed
to base treatment charges on such characteristics as strength,
composition or quality of effluent, and, as the Act envisions,
legislation establishing such a charging scheme would be helpful
to assure compliance in this respect. (2.3.1).
Municipalities, county boards, type I sanitary districts and
the Chicago Sanitary District all lack the express power to
require that full recovery of the federal share of construction
costs attributable to industrial users will be had from such
users. Since the federal act requires this, legislation would
be helpful to assure compliance. (2.3.2).
Municipalities and type III sanitary districts are not authorized
to issue general obligation bonds. (2.4.1).
The North Shore Sanitary District and types I, II, and IV
sanitary districts lack the authority to issue revenue bonds.
(2.4.2).
There is no express legislation requiring that participating
communities each pay their proportionate share of waste
treatment costs of a jointly used system, and legislation would
be helpful to assure compliance. (2.5).
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Municipalities, county boards and types III and IV sanitary
districts lack the express statutory authority to refuse to
receive any wastes from any municipality which does not comply
with any provisions of the areawide plan. (2.6).
4.0 BIBLIOGRAPHY
1. Bowe, William J., Regional Planning Versus Decentralized
Land-Use Controls; Zoning for Megolopolis, 18 De Paul L.
Rev. 144 (1968) .
2. Currie, David P., Chainr.an, The Pollution Control Board:
A First Report. Chicago, Illinois, January 6, 1971.
3. Dean, Illinois Environmental News: Legislation, Litigation,
and Administrative Proceedings. (A newsletter published
weekly by a private group of environmentally-concerned
citizens., 934 East 56th Street, Chicago, Illinois 60637).
4. Dobbins, Municipal Storm Drainage, 1960 Law Forum 294
(1960) .
5. Feldman, Lake Diversion Case: End of cycle, 49 Chi. Bar.
Rec. 270 (1968).
6. Graham, Pollution and the Law in Illinois, 52 Chi. Bar. Rec.
205 (Jan. 1971).
7. Illinois Environmental Protection Agency, Activity Report.
A report of the Agency's activities for July - November 30,
1970. Springfield, Illinois, November 30, 1970.
8. Pollution Control Board, Newsletter. (A newsletter of the
Board's activities, published every two weeks, beginning
July 27, 1970, Chicago, Illinois).
9. State of Illinois Environmental Protection Agency, State
and Federal Program Information Concerning Local Sewage
Treatment Facilities (unpublished booklet furnished by
IEPA, 1972).
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FOOTNOTES
3,
4,
5,
6,
7,
8,
9,
10,
11,
12,
13.
14.
15,
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
Nine States
P. A. 76-2429, 1970; Illinois Statutes Annotated ch. Ill
1/2 §1001 et seg.
Haskell, E.H., Managing the Environment;
Look for New Answers, 6~9(1971) .
111. Stat. Ann. ch. Ill 1/2 §1005.
111. Stat, Ann. ch. Ill 1/2 §1004.
111. Stat. Ann. ch. Ill 1/2 §1006.
111. Stat. Ann. ch. Ill 1/2 §1005(a).
111. Stat. Ann. ch. Ill 1/2 §1005, 1013.
111. Stat. Ann. ch. Ill 1/2 §1005(d).
111. Stat. Ann. ch. Ill 1/2 §1013.
111. Stat. Ann. ch. Ill 1/2 §1012, 1013.
111. Stat. Ann. ch. Ill 1/2 §1013.
111. Stat. Ann. ch. Ill 1/2 §1005 (c).
Haske.., note 2 supra, at 69.
111. Stat. Ann. ch. Ill 1/2 §1004(a).
111. Stat. Ann. ch. Ill 1/2 §1004.
111. Stat. Ann. ch. Ill 1/2 §1006.
Id.
Haskell, note 2 supra, at 83.
111. Stat. Ann. ch. Ill 1/2 §1004 (e).
111. Stat. Ann. ch. Ill 1/2 §§1042, 1043.
Illinois Constitution, Art. XI, §2.
111. Stat. Ann
111. Stat. Ann,
111. Stat. Ann,
See notes
111. Stat. Ann.
ch. Ill 1/2 §1041.
ch. 24 §§11-141-1 et seq., 1-1-2(1).
ch. 24 §§11-136-1 et seq_. , 11-147-1.
infra.
ch. 34 §3111 et seq.
111. Stat. Ann. ch. 42 §320 et seq.
111. Stat. Ann. ch. 42 §276.99 e_t seq. The "North Shore
Sanitary District Act" states that:
That whenever any area of contiguous territory
within the limits of a single county shall con-
tain two or more incorporated cities, towns or
villages owning and operating, either or any of
them, a system or systems of water works and
procuring a supply of water from Lake Michigan,
and shall be so situated that the construction
and maintenance of a common plant for the pur-
ification and treatment of sewage, and the
maintenance of a common outlet for the drainage
thereof will conduce to the preservation of the
public health, the same may be incorporated as
a sanitary district under this act.
at § 277.
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29. 111. Stat. Ann. ch. 42 §247.
30. 111. Stat. Ann. ch. 42 §299-
31. 111. Stat. Ann. ch. 42 §319.1 et seq.
32. 111. Stat. Ann. ch. 42 §411.99.
33. 111. Stat. Ann. ch. 42 §412(a).
34. Municipalities, ch. 24 §§11-141-2, 11-141-11; county boards,
ch. 34 §§3111, 3112; type I sanitary districts, ch. 42
§260; type II sanitary districts, ch. 42 §§306, 306.1;
type III sanitary districts, Ch. 42 §319.2; type IV sani-
tary districts, ch. 42 §§418, 419; North Shore Sanitary
District, ch. 42 §283; Chicago Sanitary District ch. 42
§326.
35. 111. Stat. Ann. ch. Ill 1/2 §1004(1). See also, ch. Ill
1/2 §1004(m).
36. Municipalities, ch. 24 §§11-141-7, 11-141-7, 11-141-16,
11-142-3, 11-143-1, 11-143-2, 11-145-1; county boards,
ch. 34 §§3111, 3121, 3122; sanitary districts, ch. 42
§§260, 306, 311, 317a, 319.7, 427, 283.1, 286, 288, 296.1,
326, 329e.
37. Municipalities, ch. 24 §11-142-1; county boards, ch. 34
§§3111, 3121; type I sanitary districts, ch. 42 §260;
type II sanitary districts, ch. 42 §306; type III sani-
tary districts, ch. 42 §319.7; type IV sanitary districts,
ch. 42 §427; North Shore Sanitary District, ch. 42 §283.1;
Chicago Sanitary District, ch. 42 §326.
38. Id.
39. Type II Sanitary districts, ch. 42 §306; North Shore
Sanitary Districts, ch. 42 §2k3.1.
40. Type II sanitary districts, ch. 42 §306; type III sani-
tary districts, ch. 42 §319.2; type IV sanitary districts,
ch. 42 §420; North Shore Sanitary Districts, ch. 42
§283.1.
41. 111. Stat. Ann. ch. Ill 1/2 §§1004 (h), 1012.
42. 111. Stat. Ann. ch. 34 §3123.
43. 111. Stat. Ann. ch. 34 §306.
44. 111. Stat. Ann. ch. 42 §§262, 308, 422.
45. 111. Stat. Ann. ch. 42 §§262, 309, 422.
46. 111. Stat. Ann. ch. 42 §§262.1, 308, 422.
47. 111. Stat. Ann. ch. 42 §§285, 296.3.
48. 111. Stat. Ann. ch. 42 §285.
49. 111. Stat. Ann. ch. 42 §286.
50. 111. Stat. Ann. ch. 42 §§328, 328b, 328c, 329.
51. 111. Stat. Ann. ch. 42 §§328.6a, 328.8.
52. 111. Stat. Ann. ch. 42 §§328, 328b, 328c.
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53. 111. Stat. Ann. ch. 42 §329.
54. Municipalities, ch. 24 §11-141-2; county boards, ch. 34
§3119; type II sanitary districts, ch. 42 §319.2;
Chicago Sanitary District, ch. 42 §329a.
55. 111. Stat. Ann. ch. 24 §§11-141-6, 11-141-18; ch. 34
§3120; ch. 42 §319.6; ch. 42 §329g.
56. 111. Stat. Ann. ch. 34 §3117, ch. 42 §§291.1, 291.8,
391.3, 328.6.
57. 111. Stat. Ann. ch. 24 §11-141-2, ch. 42 §319.2.
58. 111. Stat. Ann. ch. 24 §§11-141-7, 11-147-1, 11-147-3;
ch. 34 §3111; ch. 42 §§260, 306, 319.11, 319.12, 319.13,
418, 423(b), 443, 283.1, 326d, 329a, 347.
59. Chicago Sanitary District, ch. 42 §326f; the North Shore
Sanitary District, ch. 42 §283.2; type I sanitary districts,
ch. 42 §260.1; type II sanitary districts, ch. 42 §306.2.
60. 111. Stat. Ann. ch. 34 §3122.
61. Municipalities, ch. 24 §§11-141-2, 11-141-7, 11-147-1;
county boards, ch. 34 §§3111, 3122; type I sanitary dis-
tricts, ch. 42 §§260.1, 260.4; type II sanitary districts,
ch. 42 §§306.2, 306.4; type III sanitary districts, ch. 42
§§319.2, 319.7, 319.12, 319.17; type IV sanitary districts,
ch. 42 §§436a, 443a; North Shore Sanitary District, ch. 42
§§283, 283.2, 283.4, 296.6; Chicago Sanitary District,
ch. 42 §326f.
62. 111. Stat. Ann. ch. 34 §3122.
63. Type I sanitary districts, ch. 42 §§255, 258.1; type II
sanitary districts, ch. 42 §§383, 305.1; type IV sanitary
districts, ch. 42 §§416, 417.1; North Shore Sanitary Dis-
trict, ch. 42 §§280, 282.1.
64. 111. Stat. Ann. ch. 42 §§326bb(13), 326f. See also, Chicago
Allis Mfg. Corp. et al. v. The Metropolitan Sanitary Dis-
trict of Greater Chicago 288 N.E. 2d436(1972); wherein
the Illinois Supreme Court held that it was within the
statutory authority of the Chicago Sanitary District to
assess a surcharge against an industrial user of its waste
treatment facilities which discharged an amount of indus-
trial waste into its waste treatment system in excess of
an amount established by district regulation.
65. ill. Stat. Ann. ch. 11 1/2 §§1042, 1044.
66. Municipalities, ch. 24 §§11-141-1, 11-141-2; county
boards, ch. 34 §3111; type I sanitary districts; ch. 42
§260; type II sanitary districts, ch. 42 §306; type III
sanitary districts, ch. 42 §319.2; type IV sanitary
districts, ch. 42 §420; the North Shore Sanitary District,
ch. 42 §283.1; the Chicago Sanitary District, ch. 42 §326a.
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PLEASE REFER.TO FORMAT
BEFORE READING THIS REPORT.
INDIANA REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Until 1971, Indiana's primary statev/ide pollution control
agency was an administrative board known as "The Stream Pol-
lution Control Board of the State of Indiana." Its juris-
diction has been modified somewhat by the "Indiana Environ-
mental Management Board,"1 which is now in control of the
establishment of priorities and coordination of the functions
and services of both the Stream Pollution Control Board
and the Air Pollution Control Board.
The Stream Pollution Control Board continues, however to
"exercise all powers, and perform all duties now imposed upon
them in the same manner as prior to the enactment of this
article (PL 100), except as their powers and duties are
modified by this article."2 The Stream Pollution Control
Board has been designated as the Indiana State Pollution Con-
trol Agency for all purposes of the Federal Water Pollution
Control Act, as amended.3
As the primary statewide pollution control agency, the Indiana
Environmental Management Board (hereinafter called "The Board")
has certain enumerated duties,k and powers.5 The Board is
charged with adopting environmental standards and developing
regulations concerning the same,6 and must approve Stream
Pollution Control Board standards and regulations before
they become effective.7 The Board has the power to investi-
gate alleged violations of its standards,8 and is vested
with enforcement powers.9 It may also issue certain orders
after conducting the requisite hearings.10
One additional power of the Board is that "no person shall
construct, install, operate, conduct or modify any equipment
or facility of any type which may cause or contribute
to pollution or which may be designed to prevent pollution
without prior approval of the Board or any appropriate agency."11
In carrying out this function the Board uses a permit system
and is authorized to establish requirements concerning the
s ame.12
Construction and operation of waste treatment facilities
are local functions exercised by conservancy districts, regional
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sewage districts and by cities and towns. Additionally, cities
and towns have various statutory options relating to sewage
treatment facilities.
When considering the authority, or ability, of waste water
management agencies to accept and utilize grants, or other
funds from any source, for waste treatment management purposes,
note also that the Indiana Environmental Management Board has
the power to "accept and receive . . . any gifts or other funds
made available to the state from any source for . . . water
pollution control, or other environmental protection activi-
ties , surveys or programs . . ."13
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CO
-------
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND
SELECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and
Construct New Works and to Operate and Maintain New
and Existing Works as Required by Any Areawide Plan.
[§208(c) (2) (C) ] .
Conservancy districts may be created for these purposes
and have the requisite powers.!4
Any area in the state may be organized as a regional water
and/or sewage district and as such has the authority to
provide for the collection, treatment and disposal of sewage
within and without the district.15
Regional sewage districts have the authority to construct,
operate and maintain sewage treatment facilities.15
Each city and town in Indiana may own, acquire, construct,
equip, improve and maintain new and existing works. 17
In addition, certain specific types of cities and towns
have optional powers available to them. First class cities,
as defined,18 may establish sanitary districts19 which are
run by the Board of Sanitary Commissioners of the Department
of Public Sanitation in any city of the first class.
Cities of the second class, as defined,21 shall have the same
powers and duties, viz a viz sewage treatment facilities,
as cities of the first class when such cities of the second
class so provide by ordinance.22 The one major exception to
this general grant of powers to cities of the second class
is in their bonding powers. They may issue bonds of the
sanitary district, "payable by special taxation ... in an
aggregate amount not to exceed two percent (2%) of the total
assessed valuation ... of the property within said district.23
Any city or town in counties containing a population of not
cewer than 450,000 and not more than 600,000 according to
the most recent federal dicennial census, may also attain
such authority if such city or town shall by ordinance adopt
che provisions of such statutes. 2l*
Jities operating under the city manager plan of government
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may also acquire this authority when such a city shall adopt
the provisions of such statutes by ordinance,25 except that
bond issues of such sanitary districts are limited to one
percent (1%) of the total assessed valuation (after deducting
all mortgage exemptions) of the property within said sanitary
districts. 6
Cities of the first class are granted the authority to
construct, operate and maintain sewage treatment works.27
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
Conservancy districts have this authority-28 In regional
districts the funds to finance the construction of any of the
self-liquidating works authorized by the provisions of this
chapter may be obtained from any agency of the United States
or the state of Indiana.29 It may also acquire real or
personal property by donation.30
With cities and towns the funds to finance the whole or any
part of the cost of the works or any improvement, enlargement
or extension of the works may be obtained by grant or loan
from the United States government or any agency thereof,31 or
the state of Indiana.32
There is no specific provision relating to this for first
class cities.
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§ 208 (c) (2) (E) ] .
All management agencies have specific statutory authority
to raise revenues via assessment of waste treatment charges.
In conservancy districts, the district may establish waste
treatment charges that are "just and equitable."33
In regional sewage districts, "the board of trustees of the
district shall, by ordinance, establish just and equitable
rates or charges for the use of, and the service rendered
by , a works . " 3 **
In cities and towns, each city or town "shall establish just
and equitable rates or charges for its sewerage service."-35'
Such "rates or charges may be fixed" on the basis of a flat
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charge for each sewer connection, the amount of water used
on the premises, the number and size of water outlets on the
premises, the amount, strength or character of sewage dis-
charged into the sewers, size of sewer connections or any
combination of these or other factors as the common council
or board of town trustees determine is necessary in order to
establish just and equitable rates or charges.3
Districts created by first class cities have "special taxing
powers,"37 additional tax levying powers38 and are also charged
with the power to prepare a schedule of reasonable service
charges. The board also has the explicit authority to make
assessments against specific property for special benefits.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency- [§204 (b) (1) (A)].
All management agencies have either express statutory authority
to do this or are endowed with certain general statutory powers
in this regard from which it can be legally inferred that such
authority exists.
In conservancy districts the schedule of rates may be based
on either amount or character of effluent discharged or both
so long as the rates are just and equitable.1*1 From this it
may be concluded that each category of user can be required to
pay its appropriate share.
In regional sewage districts rates and charges shall produce
an income sufficient to maintain the works in sound physical
and financial condition to render adequate and efficient
service.1* 2 The rates and charges for services of . . . a
sewer system need not be uniform throughout the district or
for all users. The Board of Trustees shall have authority
to exercise reasonable judgment in adopting different schedules
of rates and charges, or making classifications in schedules
of rates and charges, based upon variations in the costs of
furnishing the services (including capital expenditures required)
to various locations within the district, or where there are
variations in the number of users within various locations with-
in the district.1*3 The rates or charges for a sewage works
may be fixed on the basis of a flat charge for each connection,
the amount of water used on the premises, the number and size
of water outlets on the premises, the amount, strength or
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character of sewage discharged into the sewers, the size of
sewer connections, whether the property served has been, or
will be, required to pay separately for the cost of any of
the facilities of the works, or any combination of these or
other factors as the Board of Trustees determine is necessary
in order to establish just and equitable rates or charges. 4 "*
In the legislation pertaining to cities and towns the defi-
nition of sewage includes industrial waste,45 and it can
be inferred from this that "just and equitable charges" will
assure that each category of user will pay its appropriate
share. See the discussion of charges in 2.3 supra.
In sanitary districts created by first class cities the board
is charged with establishing "just and equitable" rates and
charges,1*6 and has the authority "to establish and enforce
rules governing the furnishing of sewage treatment and dis-
posal service and the payment therefore."117 It is further
provided that the rates and charges for the treatment and
disposal of sewage may be fixed and determined on the basis
of a flat charge for each sewer connection, the amount of
water used on the premises, the number and size of water out-
lets on the premises, the amount, strength or character of
the sewage discharged into the sewers , size of sewer con-
nections or any combination of such factors or such other
factors as the Board shall determine to be necessary in order
to establish just and equitable rates and charges.1*
Thus, it appears that each category of user can be required
to pay its appropriate share of the costs.
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [§204 (b) (1) (B)].
There are no specific statutes in Indiana relating to this
provision.
In first class cities rates pertaining to industrial sewage
are governed by statute1*9 but there is no provision for
special recovery of federal costs.
In regional sewage districts it is possible that this could
be accomplished via their general charging powers although
such action is not explicitly prescribed.
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2.4 Authority to Incur Short- and Long-Term Indebtedness.
[§208(c) (2) (F)] .
Conservancy districts may issue bonds to pay the cost of such
works. "The bonds may be issued solely against the revenues
expected ... or against the real property of the district
in anticipation of the collection of special benefits taxes.
Any bonds issued against the real property of the district
may be paid in part by revenues derived from reasonable
charges for services or property produced incident to the
operation of the district, or may be paid in part from the
collection of any assessment for exceptional benefits."51
The total amount of the bonds issued shall not exceed such
cost less funds on hand from the collection of assessments
and funds on hand or obligated to the district by the state
or the federal government.52 The maximum interest rate
for bonds issued may not exceed seven percent per year.53
All other management agencies also possess express statutory
authority to incur short- and long-term indebtedness.54
2.4.1 General Obligation Funding.
All agencies except regional sewage districts have the
authority to employ general obligation funding.55 Cities
and towns may not incur such indebtedness for more than
forty years. 6
In cities of the first class the bonds "do not represent a
corporate obligation or indebtedness of a city but shall be
and constitute an indebtedness of said sanitary district,
as a special taxing district . . ,"57
In any city of the first or second class whereby sanitary
districts issue bonds payable by special taxation for the
purpose of constructing sewage treatment facilities the
total issue may be equal to but is not to exceed 12 percent
of the total assessed valuation (after deducting of mort-
gage exemptions) of the property within such sanitary dis-
trict.58 Similar limitations based on a percentage of total
assessed valuation apply to the other agencies.
2.4.2 Special Funds and Revenue Funding.
All management agencies have the express statutory authori-
ty to employ a revenue bond method of financing except for
first class cities for which there is no express authorization.59
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In regional sewage districts such bonds "may bear interest
at such rate or rates , not exceeding the maximum determined
by the Board payable annually or at shorter intervals and
shall mature at such time or times as may be determined by
ordinance." Temporary revenue bonds and additional revenue
bonds may be issued.6 In addition, when revenue bonds
are issued, the Board of Trustees shall, by ordinance,
create a sinking fund.61
In cities and towns revenue bonds shall bear interest at
not more than six percent per annum . . . and shall mature at
such time or times as may be determined by ordinance.62
In regional sewage districts "the Board of Trustees of a
district may secure the revenue bonds by a trust indenture
by and between the district and a corporate trustee . . ,"63
Cities and towns also have the authority to secure revenue
bonds by a trust indenture by and between the city or town
and a corporate trustee .6 "*
2.4.3 Other Methods of Financing.
Conservancy districts are allowed to apply to Federal
agencies for long or short term loans if said agency makes
loans of this nature.65 They may borrow money from banks
or savings and loan associations licensed to do business in
Indiana and issue notes therefore (two-year limit, with an
option to renew for two additional years).66 They are also
authorized to establish cumulative improvement funds for
financing purposes.6 7 Monies for this fund may come from
several diverse sources.68
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan that Each Participating Community
Pay Its Proportionate Share of Treatment Costs.
[§208(c) (2) (G) ] .
At the outset it should be noted that this requirement is
inextricably intertwined with the general charging powers
discussed in §2.3, supra. Also, this provision does not
apply to the statutory powers of first class cities since
there would only be one city involved.
In conservancy districts, cities would probably be considered
users in this context and the "just and equitable" rates
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requirement69 would presumably apply. There is.no express
provision establishing a system whereby districts would bill
cities which, in turn, would bill customers, but there is
no legal obstacle blocking the use of such an arrangement.
This provision is not expressly provided for in regional
sewage districts although it may be inferred from the
region's broad grant of charging powers discussed supra.
Cities and towns are authorized to contract to provide
sewage treatment for other cities or towns,70 and the man-
date is for "just and equitable rates,"71 as discussed in 2.3,
supra.
2.6 Authority to Refuse to Receive Any Wastes from Any
Municipality or Subdivision Thereof, Which Does Not
Comply With Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§ 208 (c) (2) (H) ] .
None of the management agencies have the express statutory
authority to do exactly this. However, in regional sewage
districts the district may make rules and regulations for
the control of the administration and operation of its
services.72 It may enter into any contracts with any person,
firm, or corporation, public or private, or any political
subdivision or the state or the United States to render
services to such contracting party for the collection or
treatment of sanitary sewage.
The district shall have the power to require connection to
its sewer system of any property producing sewage.74 The
district may refuse the services of its facilities if such
rates or other charges are not paid by the user thereof.75
Thus, particular "users" may be cut off for non-payment and
"user" may even include a municipality, but there is no apparent
authority to cut off service for failure to comply with the
approved areawide plan.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
There is no express statutory authority to do this. However,
it is possible that future hook-ups could be denied if
rules and regulations are not complied with, although this
is not explicitly mentioned.
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In addition to statutory authority there are certain regu-
lations relating to this provision in Indiana. A policy
prohibiting new sewer connections to overloaded municipal
sewage treatment plants was adopted by the Indiana Stream
Pollution Control Board January 16, 1973.
Plants operating at or above capacity will not be subject
to new sewer connections except when there is a prospect
of plant extension and a bond sale or grant is pending for
that purpose. Connections from existing sources will be
permitted if the effluent will not cause a substantial in-
crease in plant load.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply With
the Areawide Plan.
There are no express statutory provisions relating to these
situations although, in regional sewage district "any person,
firm or corporation whether a private or public body, which
willfully fails to comply with such rules and regulations,
shall be liable for damages caused by such failure and for
the cost of restoring or replacing any construction damaged
or destroyed."7 6
This is also the case in first class cities although a
"person delinquent" in the payment of sewer rates is "liable
to disconnection from the sewerage system until such rates
or charges are fully paid."77
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
All management agencies in Indiana have the power to accept
industrial wastes for treatment. Conservancy districts
have this power as the definition of sewage includes "wastes
created in industrial establishments."78 Regional sewage
districts are authorized to treat industrial waste.79 They
also have the power "to prohibit or regulate the discharge
into the sewers of the district of any liquid or solid
waste detrimental to its works and improvements."80
Cities and towns have no explicit statutory authorization
for this but it may be assumed since the definition of "treat-
able" sewage includes industrial waste.
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In cities of the first class the board has the authority to
accept for treatment any industrial wastes which conform to
effluent standards and pretreatment standards.81
3.0 SUMMARY
For the most part, Indiana's waste water management agencies
have the requisite powers needed to be in compliance with
the Act. However, certain deficiencies have been noted and
some legislation is advisable. The areas in need of legis-
lation to allow for full compliance are noted infra.
3.1 Deficiencies
Local management agencies lack express statutory authority
to recover from industrial users the federal portion of capital
costs allocable to treatment of their wastes. Specific
legislation would be helpful to remedy this situation.
Sanctions should be authorized which would be effective
against communities as well as individuals. It should be
noted, however, that the Stream Pollution Control Board and
the Environmental Management Board have the power to act
against communities which are in violation of the state laws.
Certain of the agencies lack total bonding powers and
legislation should be forthcoming.
Specific authority to require pretreatment by industrial
users should be enacted as some agencies only have this
authority by implication and others lack it entirely.
4.0 BIBLIOGRAPHY
1. Abt Report, 1008 Environmental Reporter, BNA Series
(December 29 , 1972) .
2. Waite, G. Granham, Indiana Water Law and Suggestions for
Action, Ind. Water Resources Study Commission, 1968.
3. Indiana State Chamber of Commerce, "Here Is Your State
Government," (15th ed. 1971), with 1972 Supp.
4. Emerson, G. A. and E. E. Ferguson, Pollution; A Summary
of the Law of Indiana (Indiana Legislative Council,
Indianapolis, 1972).
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FOOTNOTES
1. Ind. Ann. Stat. §35-5201 et seq. , (Supp. 1972) See also,
Abt Report, cited in_ Environmental Reporter at 1008, BNA
Series (December 29~7 1972), which recommended "abolishment
of the . . . Stream Pollution Control Board, and transfer of
sanctions to the Environmental Management Board created by
the 1972 General Assembly.""
2. Ind. Ann. Stat. § 35-5219(Supp. 1972).
3. Ind. Ann. Stat. §§35-5212(Supp. 1972); 68-536(1961).
4. Ind. Ann. Stat. § 35-5213(Supp. 1972).
5. Ind. Ann. Stat. § 35-5216(Supp. 1972).
6. Ind. Ann. Stat. §§35-5213 (b) , -5216 (c) , -5228(Supp. 1972).
7. Ind. Ann. Stat. § 35-5224 (b) (Supp. 1972).
8. Ind. Ann. Stat. § 35-5240(Supp. 1972).
9. Ind. Ann. Stat. §§ 35-5216 (e f, -5241(Supp. 1972).
10. Ind. Ann. Stat. § 35-5244(Supp. 1972).
11. Ind. Ann. Stat. § 35-5215 (f) (Supp. 1972).
12. Ind. Ann. Stat. §§35-5235, -5228 (b) (Supp. 1972).
13. Ind. Ann. Stat. § 35-5216(g) (Supp. 1972).
14. Ind. Ann. Stat. §§27-1501, -1503, -1548, -1561(1970).
15. Ind. Ann. Stat. §27-2845 et seq. (Supp. 1972).
16. Ind. Ann. Stat. §§27-2852 (e), (g) , (i)(Supp. 1972).
17. Ind. Ann. Stat. §48-4302 et seq. (Supp. 1972).
18. Ind. Ann. Stat. §48-1201(196377
19. Ind. Ann. Stat. §48-4201 et seq. (1963).
20. Ind. Ann. Stat. § 48-4203 (f) (1963) .
21. Ind. Ann. Stat. §48-1201(1961).
22. Ind. Ann. Stat. §48-4227(1963).
23. Ind. Ann. Stat. §48-4229(1963).
24. Ind. Ann. Stat. § 48-4227(a) (Supp. 1972).
25. Ind. Ann. Stat. §48-4228(1963).
26. Ind. Ann. Stat. § 48-4228(g) (1963) .
27. Ind. Ann. Stat. §§48-4203(13), (14) (1963).
28. Ind. Ann. Stat. §§27-1549, -1550(1970).
29. Ind. Ann. Stat. § 27-2859(Supp. 1972).
30. Ind. Ann. Stat. § 27-2852(j) (Supp. 1972).
31. Ind. Ann. Stat. § 48-4311(Supp. 1972).
32. Ind. Ann. Stat. § 48-4312(Supp. 1972).
33. Ind. Ann. Stat. §§27-1580, -1580(a) to -1580(f) (1970).
34. Ind. Ann. Stat. § 27-2867(Supp. 1972).
35. Ind. Ann. Stat. §§48-4319, -4320(Supp. 1972).
36. Id.
37. Ind. Ann. Stat. §48-4209(1963).
38. Ind. Ann. Stat. §48-4231(1963).
39. Ind. Ann. Stat. § 48-4203 (17) (1963) .
40. Ind. Ann. Stat. § 48-4203 (f) (1963) .
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41.
42,
43.
44,
45,
46
47
48
49.
50 ,
51.
52 ,
53.
54,
55,
56
57,
58
59,
60,
61,
62
63,
64
65,
66,
67
68,
69,
70.
71,
72,
73,
74,
75
76
77
78
Ind. Ann. Stat. § 27-1580 (e) (1970).
Ind. Ann. Stat. § 27-2867(Supp. 1972).
Ind. Ann. Stat. § 27-2864(Supp. 1972).
Ind. Ann. Stat. § 27-2864(Supp. 1972); See also Ind. Ann.
Stat. §27-2852 (s) (Supp. 1972).
Ind. Ann. Stat. § 48-4301(a) (Supp. 1972).
Ind. Ann. Stat. § 48-4219(a) (1963) .
Ind. Ann. Stat. § 48-4219 (b) (Supp. 1963); Ind. Ann. Stat.
§ 48-4270(Supp. 1972) amending Ind. Ann. Stat. §48-4270
(1963); See also Ind. Ann. Stat. §48-4266(1963).
Ind. Ann. Stat. § 48-4269(Supp. 1972) amending Ind. Ann.
Stat. § 48-4269(1963) .
See generally Ind. Ann
Stat.
Ann
Stat. §§27-2864
§27-1584(1970) .
-2867 (Supp. 1972)
Ind
Id.
Ind. Ann. Stat. §27-1585(1970).
Ind. Ann. Stat. §§27-2857, 48-4310
(Supp. 1972); 48-3906(1963).
Ind. Ann. Stat. §§27-1584(1970
Ann. Stat. §48-3906(1963).
Ann. Stat. § 48-4217 (Supp . 1972)
§ 48-4217 (1963) .
Ann. Stat. § 48-4217 (a) (Supp . 1972) amending Ind. Ann
§ 48-4217 (a) (1963) .
Ann. Stat. §§27-1584(1970); 27-2858 (Supp . 1972);
Ind.
Ind.
Stat
Ind.
Stat
Ind.
-4311, -4312, -4313
48-3905 (1963)
amending Ind. Ann
48-4311(Supp. 1972)
Ind. Ann. Stat. §§27-2859, -2860 (Supp. 1972)
Ind. Ann. Stat. § 27-2862 (Supp . 1972).
Ind. Ann. Stat. § 48-4312 (Supp . 1972).
Ind. Ann. Stat. § 27-2861 (Supp . 1972).
Ind. Ann. Stat. § 48-4315 (Supp . 1972).
Ind. Ann. Stat. §27-1571(1970).
Ind. Ann. Stat. §27-1573(1970).
Ind. Ann. Stat. § 1590 (b) (1970 ).
Ind. Ann. Stat. § 1590 (c) (1970 ).
Ind. Ann. Stat. § 27-1580 (d) (b) (1970 ).
Ind. Ann. Stat. § 48-4310 (Supp . 1972).
Ind. Ann. Stat. §§48-4319, -4320 (Supp. 1972)
Ind. Ann. Stat. § 27-2 852 (Supp . 1972).
Ind. Ann. Stat. § 27-2 852 (m) (Supp . 1972).
Ind. Ann. Stat. § 27-2852 (g) (Supp . 1972).
Id.
Ind. Ann. Stat. § 27-2854 (Supp . 1972).
Ind. Ann. Stat. §48-4276(1963).
Ind. Ann. Stat. § 27-1580a (e ) (1970 ) .
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79- Ind. Ann. Stat. §27-2852(m) (Supp- 1972).
80. Ind. Ann. Stat. §27-2854 (d) (Supp. 1972).
81. Ind. Ann. Stat, § 48-4203 (b) (1963) ; Ind. Ann. Stat.
§48-4269(1972); amending Ind. Ann. Stat. §48-4269
(1963); Ind. Ann. Stat. § 48-4277 (a) (Supp. 1972).
82. Ind. Ann. Stat. §68-521(1961) and § 35-5241(Supp. 1972)
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
MICHIGAN REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
In Michigan, the Water Resources Commission (WRC) is the
agency chiefly responsible for administering and enforcing
the state's water pollution control laws.1 At its inception
the legislature charged the WRC with the duty of controlling
the pollution of any waters of the state and the Great Lakes.
The act has been amended several times with the most signifi-
cant amendments occurring in 1949,2 again in 1965,3 and finally,
in 1970, (Michigan's "Truth in Pollution" Act.4 Each amend-
ment broadened the scope of Michigan's anti-pollution controls
and significantly strengthened the WRC's authority and ability
to implement the purposes of the act.
The WRC was within the Department of Conservation until 1968
when the legislature created the Department of Natural Re-
sources (DNR)5 as one of Michigan's twenty "principal" depart-
ments.5 In the process the Department of Conservation was
abolished and its memebers became the members of the "new"
DNR. As a result, the WRC was transferred by a type I trans-
fer to the DNR.7 This transfer did not result in any basic
change in the authority of the WRC and the only administra-
tive difference is that the commission thus transferred (WRC)
is now administered under the supervision of the principle
department (DNR). The final administrative alteration occurred
in May, 1969, when the WRC's staff was regrouped and its duties
expanded via its incorporation into a newly established Bureau
of Water Management in the Department of Natural Resources.8
The Bureau consists of three major divisions: water quality
control, hydrological surveys and studies, and water develop-
ment services. The impact of this is that additional water-
oriented activities such as submerged lands management and
oil pollution control, which were previously in other divisions,
were transferred into these divisions to consolidate related
responsibilities. The Bureau is responsible to both the WRC
and the Director of the DNR.9
Membership on the Commission (WRC) is established by statute
and is set at seven. Three members are appointed by the Gov-
ernor: one each to represent the interest of mi -n.cipalities,
industrial management and conservation groups. .e other four
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members are state officials serving ex-officio: the Director
of the Department of Natural Resources, the Director of the
Department of Public Health, the Director of the Department
of Agriculture and a representative from the State Highway
Commission.10 The State Health commissioner is in general
charge and supervision of the enforcement of the health laws of
the state,11 and apparently, although not specifically detailed
by statute, is expected to provide this sort of input for the
WRC via his ex-officio membership.
The legislature has declared unlawful pollution to be the
direct or indirect discharge into state waters Of "any sub-
stance which is or may become injurious to the public health,
safety or welfare . . . ,12 and has given the WRC permit issuing
and rule making authority to establish standards regulating
both the quality of receiving waters and the pollution content
of any substance discharged into the states waters.13 The WRC
has promulgated a substantial number Of rules covering many
aspects of water pollution and which may be found in the Michigan
Administrative Code.11*
Anyone detected of failing to comply with the statute, or the
WRC's rules or anyone discharging wastes without a permit will
be subject to a commission order and, if not voluntarily com-
plied with, the commission will seek a court order to assure
compliance.15 The commission order results from a commission
hearing and the alleged offender is granted the Opportunity of
both administrative and judicial review if so desired.16 The
Michigan statute also provides for criminal action against
alleged polluters,17 and establishes penalties by way of fines
if convicted.18
Michigan has established a surveillance, investigation and
monitoring system19 which is the tool actually responsible
for the success of its water pollution control program.20
The act works by requiring that:
every person, doing business within this state dis-
charging waste water to the waters of this state or
to any sewer system, which contains wastes in addi-
tion to sanitary sewage shall file annually reports
on forms provided by the commission setting forth
the nature of the enterprise, indicating the quantities
of materials used in and incidental to its manufactur-
ing processes and including by-products and waste pro-
ducts, which appear on a register of critical materials
as compiled by the commission with the advice of an
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advisory committee of environmental specialists
designated by the commission, and the estimated
annual total number of gallons of waste water in-
cluding but not limited to process and cooling water
to be discharged to the waters of the state or to
any sewer system.21
And, any person, company or corporation (but not municipal-
ity) discharging any water borne waste directly or indirectly
into any waters of the state is required to pay a surveillance
fee to the WRC which operates this system.22
There is also a certain amount of control vested in the Michigan
commissioner of health in that his office exercises supervisory
control over public water supplies and sewage disposal sys-
tems.23 Its basic authority is that of review of plans sub-
mitted by local agencies and deciding whether such proposed
system will be adequate. Its authority in this respect stems
from the requirement that local agencies must procure a permit
from the commissioner before constructing or operating a sewage
treatment system.24
Finally, the WRC is further authorized to take such steps as
may be necessary to take advantage of any act of Congress
heretofore or hereafter enacted which may be of assistance
in water pollution control or abatement. 5
Management of sewage treatment facilities is carried out at
the local level and may be conducted by cities,26 villages,27
sewage disposal districts,28 counties2 and townships.30 Any
two or more cities, villages or townships or any combination
or parts thereof, may incorporate into a metropolitan district
for such purposes.31 Also, any two or more counties, town-
ships, charter townships, incorporated cities or incorporated
villages may incorporate an authority for such purposes.32
Finally, any two or more political subdivisions may jointly
use or own a treatment system.33
- 281 -
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o
.c
u
tn
BUREAU OF WATER MANAGEMENT
Organization Chart
Deputy
Bureau of
Water
Management
Assistant
Deputy
Office Mgt.
Water Quality Control
CM
CO
CN
[
Co-npre-
hcnsive
Studies
1 1 __
V.ater
Quality
Appraisal
Lab-
oratory
1
Oil
Pollution
Control
Special
Programs
Enforcement
Branch
Region I
1
District-1
Point
Mouillee
Enforcement
Branch
Region II
1
I
I | |
District-2
Lansing
District-o
Escanaba
District- 4
Cadillac
|
1
|
1
1
rFSrc~~i
G'a-U !:
Ka^ids | i
Hydrolcgical Survey
Water Development Services
-------
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c)(2)(C)].
All management agencies in Michigan are vested with the express
statutory authority needed to assure compliance with the require-
ments of this provision.34
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
[§208(c)(2)(D)].
All management agencies are authorized to apply for and accept
grants or any other aid which the United States government or
any agency thereof has authorized or may hereafter authorize
to be given or made to the several states of the United States
or to any political subdivisions or agencies thereof within
the states for the construction of public improvements, in-
cluding all necessary action preliminary thereto, the purpose
of which is to aid in the prevention or abatement of water
pollution.35 They are further authorized to accept contri-
butions and other aid from industries for the purpose of aiding
in the prevention or abatement of water pollution.36
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208(c) (2) (E)] .
All management agencies are authorized to establish rates and
charges for the use of their sewage treatment facilities and
for the services rendered thereby.37
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)].
None of the agencies are absolutely required nor even expressly
authorized to assure that each category or user will pay its
proportionate share of treatment costs. However, they are all
authorized to establish rates and charges38 and this by itself
would provide the permissive ability for local agencies to
assure compliance. In addition, sewage disposal districts
- 283 -
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are required to charge "reasonable" rates;39 when two or more
political subdivisions jointly use a works they are required
to charge users "in proportion to the services furnished;"
and cities, villages, townships and counties are required to
establish "just and equitable" rates.1*1
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of Such
Industrial Wastes. [ §204 (b) (1) (B)] .
None of the local management agencies have the express statu-
tory authorization to provide for this. They could possibly
assure compliance through their general powers of contract or
their general rule making powers. However, this would only be
of limited effectiveness in light of the realities of the bar-
gaining situation and the political pressures that could be
brought to bear in certain individual cases.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F) ] .
All local management agencies possess the authority to finance
projects in this manner and these powers will be discussed in
more detail in the following sections.
2.4.1 General Obligation Funding.
All of the local management agencies -- with the exception
that systems owned or used jointly by two or more political
subdivisions must be financed individually rather than as a
joint enterprize -- have the express statutory authorization
to issue general obligation bonds. **2 Such bonds may be left
outstanding for up to forty years.43 In cities, villages,
townships and counties approval of such issue is required by
a three-fifths vote of the electorate voting in an election
held for such purpose. "* ** The issue, if approved, may not
exceed three percent (3%) of the assessed valuation of prop-
erty in each such entity.1*5 In metropolitan districts such
an issue may not exceed two percent (2%) of the assessed valu-
ation of property in such district.1*6
2.4.2 Special Funds and Revenue Funding.
All management agencies are vested with the express statutory
authority to finance projects via issuance of revenue bonds.1*7
Cities, villages, townships and counties are required to
- 284 -
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procure approval by three-fifths of the electorate votina
upon the question of whether such bonds should be issued1* 8
and if approved such bonds may bear interest at a rate not
exceeding six percent (6%) per annum.1*9 If such bonds are
issued a sinking fund must be established and maintained to
assure payment for such bonds and interest.50 Metropolitan
districts are also required to establish a sinking fund to
cover such bonds and interest therefore.51. The interest on
these bonds may not exceed six percent (6%) per annum.52
2.4.3 Other Methods of Financing.
Michigan has created a fund known as the state water pollution
control fund which is used for assisting counties, cities,
villages, townships and other public bodies created by a pur-
suant to state law and having jurisdiction over disposal of
sewage or other liquid wastes, in financing their construc-
tion of treatment works.53
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community Pay
Its Proportionate Share of Treatment Costs. [§208(c)(2)
(G)] .
All management agencies possess either the express or implied
authority needed to assure compliance with the requirements
of this section of the act.51*
2.6 Authority to Refuse to Receive Any Wastes From Any Munici-
pality or Subdivision Thereof, Which Does Not Comply With
Any Provisons of an Approved Plan Under §202 Applicable
to Such Area. [§208(c)(2)(H)].
The local agencies lack express statutory authority in this
regard and without it they probably would not be able to assure
compliance.
The WRC has a certain degree of control in this respect through
its rule making powers in conjunction with the surveillance
system. Likewise, the commissioner of health would be able
to exert a certain amount of compliance via the permit-issuance
authority-
However, in light of the severe sanctions envisioned by the
act, it is doubtful that any agency could exert the power
required to assure compliance without express statutory author-
ity to do so.
- 285 -
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2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
Again, there is no express legislation regarding this require-
ment but since it involves more of an original contractual
privilege rather than a sanction it would probably be within
the contractual powers of each agency.
It would probably be within the power of the commissioner of
health to do this since it would be part of a permit applica-
tion procedure.55
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
None of the local management agencies have any of these powers
but there are certain sanctions available against persons who
violate the water pollution control laws or rules or regulations
of the WRC.56
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)].
All management agencies are authorized to enter into contracts
and agreements with industries concerning the collection,
treatment and disposal of sewage and industrial wastes from
industries.57 Such agreements could reasonably provide for
pretreatment of industrial wastes as well.
3.0 SUMMARY
Overall, Michigan's waste water treatment management agencies
are sufficiently empowered to comply with most of the provi-
sions of the act. One of the major short-comings noted in the
Michigan program is that different agencies are empowered to
perform similar authorizations. Many of the authorizations
are redundant. In other instances the legislature has appar-
ently attempted to provide one agency with powers possessed by
another, but has used different statutory language and has thus
created certain statutory ambiguities; in other instances cer-
tain agencies possess express powers that other agencies only
possess through inference. All of this leads to the recom-
mendation that one new statute be enacted providing uniform
and sufficient authority for all agencies to comply with the
requirements of the federal act and that all of the old legis-
lation be repealed as it is currently somewhat confusing and
would be unnecessary upon passage of the uniform statute.
- 286 -
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3.1 Deficiencies
The legislature should enact legislation requiring that full
recovery will be had from industrial users of the federal
portion of the construction costs of treatment works reason-
ably attributable to treatment of such industrial wastes in
order to assure compliance with this requirement of the act.
It should also grant the local agencies the express authority
to refuse to receive any wastes from any municipality or sub-
division thereof which does not comply with any provisions
of an approved plan since this is an integral requirement of
the act. In addition, sanctions should be expressly authorized.
Finally, even though the local agencies could insure that each
category of user will pay its proportionate share of the costs
of operation maintenance through their general charging powers,
legislation would be helpful to require compliance with this
provision.
4.0 BIBLIOGRAPHY
1. Gilman, The Executive Organization Act of 1965, 13 Wayne
L. Rev. 41 (1966).
2. Haskell, E. H., Managing the Environment: Nine States Look
for New Answers, 371-88 (1971).
3. Jackson, Environmental Quality, The Courts and Congress, 68
Mich. L. Rev. 1073 (1970) .
4. Purdy, Water Resources Commission in the Michigan Department
of Natural Resources Twenty-Fifth Biennial Report 236 (1970) .
5. Sax and Conner, Michigan's Environmental Protection Act of
1970: A Progress Report, 70 Mich. L. Rev. 1004 (1972).
6. Sax, Joseph L. Defending the Environment. New York, Knopf,
1970.
7. Sax, Joseph L. An Environment Common Law for Michigan. Law
Quadrangle Notes (University of Michigan Law School)T4: 27.
1970.
8. Sax, The Public Trust Doctrine in Natural Resource Law:
Effective Judicial Intervention. 68 Mich. L. Rev. 473 (1970)
- 287 -
-------
10
11
2
3,
4
5
6,
1
Thebodeaus, Joseph. Michigan Environmental Protection Act
of 1970: Panacea or Pandora's Box. Memorandum to Michi-
gan Legislature reprinted in Congressional Record 116(165):
S16246 - S16251. September 22, 1970.
Water Resources Commission Staff Paper, Summary of Michigan's
Water Pollution Control Act (Act 245, P.A. of 1929, as_
amended), (unpublished, February 1969).
Water Resources Commission Staff Paper, Summary of Michi-
gan's "Truth in Pollution Act", Act 200, P.A. of 1970,
(unpublished, September 1970).
FOOTNOTES
Compiled Laws Annotated, §323.1 et seq. (Supp.
Michigan
1972).
P.A. 1949, No. 117.
P.A. 1965, No. 328, No. 405.
P.A. 1970, No. 200.
M.C.L.A. §16.350 (Supp. 1972).
Art. 5, §2 Michigan Constitution.
M.C.L.A. §16.357. See also, Op. Atty. Gen. 1966, No.
for further enlightenment concerning type I transfers.
See Purdy, Water Resources Commission in the Michigan
Department of Natural Resources, Twenty-Fifth Biennial
Report 236 (1969-70).
4479
9.
10.
11.
12.
13.
14.
Id.
M.C.L.A.
M.C.L.A.
M.C.L.A.
M.C.L.A.
The Code
according
§
§
§
§
323.
325.
32
32
3
3
.
.
1 (Supp.
2 (1967)
6 (Supp.
5 (Supp.
contains rules
chapter 32
15.
16.
17.
18.
19.
M.C.L.A.
Id.
M.C.L.A.
M.C.L.A.
P. A. 1970
§
§
§
/
to
3.
32
32
32
numbered
3
3
3
.
No.
7 (Supp.
9 (1967)
10 (Supp
200, M.
1972)
1972)
1972)
and
.
.
regulations and are arranged
designations
.
C
1972)
1972
.L.A.
.
) .
§!
§323
corresponding to M.C.L.A.
.6b, 323.13 (Supp. 1972),
Pollution Act1
(better known as Michigan's "Truth in
20. See Water Resources Commission Staff Paper, Summary of
Michigan's "Truth in Pollution" Act of 1970 (unpublished,
September 1970), wherein it is stated that this act has
significantly improved and strengthened Michigan's water
pollution control program and the WRC's administrative
and enforcement capabilities.
21. M.C.L.A. §323.6b (Supp. 1972).
- 2:
-------
22. M.C.L.A. §323.12 (1967).-
23. M.C.L.A. §325.201 et se%. (1967).
24. M.C.L.A. §325.206 (1967).
25. M.C.L.A. §323.2a (Supp. 1972). See also, Water Resources
Commission Staff Paper, Summary of Michigan's Water Pollu-
tion Control Act, (Act 245, P.A. of 1929, as_ amended) , (un-
published, February 1969) wherein the WRC itself states
that it perceives its role to be as follows:
Under the provisions of the act, the Water Resources Com-
mission must:
a. control pollution of any surface or underground
waters of the state and the Great Lakes,
b. control alterations of natural or present water-
courses of all rivers and streams,
c. establish pollution standards for lakes, rivers,
streams and other waters of the state as it deems
necessary,
d. examine and certify operators of industrial waste
treatment facilities discharging liquid wastes, and
e. make orders restricting the polluting content of
proposed new or increased uses of state waters
for waste disposal purposes.
The Commission has the authority to:
a. make orders, including a performance timetable,
requiring abatement of existing pollution prob-
lems ,
b. seek court enforcement of its orders,
c. determine what volume of water flows in all
streams, and the high and low water marks of
lakes, affected by waste disposal,
d. make regulations and orders to prevent harmful
interference with the discharge and stage
characteristics of streams,
e. determine the location and extent of flood
plains, stream beds and channels,
f. make surveys, studies and investigations of
water use,
g. cooperate and negotiate with other govern-
ments and governmental units, and
h. take advantage of any act of congress.
26. M.C.L.A. §§123.201 (1967), 123.241 (Supp. 1972).
- 289 -
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27. M.C.L.A. §§123.201 (1967), 67.24 (1967).
28. M.C.L.A. §323.151 et seg. (1967). Sewage disposal dis-
tricts may be formed by any two or more municipalities.
It is accomplished by resolution of their legislative
body and by filing a petition with the commission recruest-
ing that a sewage district be organized to function in
the territory described in the petition. Formation of the
district is thereafter left up to the WRC.
29. M.C.L.A. §§123.241 (Supp. 1972), 46.171 (1967).
30. M.C.L.A. §§123.241 (Supp. 1972), 41.331 (1967).
31. M.C.L.A. § 119 .1 et s_ea. (1967).
32. M.C.L.A. §§124.282, 124.281(c)(1967).
33. M.C.L.A. §123.231 et seq. (1967).
34. Cities, villages, townships and counties, §§123.241,
(Supp. 1972), 123.245 (1967); sewage disposal districts,
§ § 323.158(a) , 323.159 (1967); sewage disposal authority,
§§124.282, 124.284(e), 124.287 (1967); metropolitan
districts, §§119.1, 119.2 (1967); and, 2 or more political
subdivisions, jointly, §123.232 (1967).
35. M.C.L.A. §323.102 (1967).
36. M.C.L.A. §323.103 (1967).
37. Sewage disposal districts, §323.159 (1967); cities, vil-
lages, townships and counties, §123.243 (1967); sewage dis-
posal authorities, §124.287 (1967); metropolitan districts,
§119.4(d) (1967); and, 2 or more political subdivisions,
jointly §123.235 (1967).
38. S_ee note 38 i_d. , and the accompanying text.
39. MTC.L.A. §§311.159, 323.160 (1967).
40. M.C.L.A. §123.325 (1967).
41. M.C.L.A. §123.243 (1967).
42. Sewage disposal districts, § 343.159(4) (1967) ; cities, vil-
lages, townships and counties, §123.242 (1967); sewage dis-
posal authorities §124.289 (1967); and metropolitan
districts, § 119 . 4 (b) (1967) .
43. E.g., M.C.L.A. §§123.242, 124.289 (1967).
44. M.C.L.A. §123.242 (1967).
45. Id.
45. M.C.L.A. §119 .4 (b) (1967) .
47. Sewage disposal districts, §323.162 (1967); cities,
villages, townships and counties, §123.242 (1967); sewage
disposal authorities, §124.292 (1967); metrooolitan dis-
tricts, §119.4(b) (1967) ; two or more political subdivisions,
jointly ,
48.
49.
50.
51.
52.
53.
M.
Id
M.
M.
Id
M.
C
C
r-
^
,
c
.L
.L
.L
.L
.A.
.A.
.A.
.A.
§
§
§
§
§
123
123
123
119
323
.2
.2
.2
.4
34
42
44
(b)
.111
(1967)
(1967)
(1967)
(1967)
et seq
et seq. (Supp. 1972)
- 290 -
-------
54. M.C.L.A. §123.214. See also, §§323.159, 123.243 (1967)
124.287 (1967), 124.290 (1967), 123.232 (1967), 123.235
(1967) .
55. M.C.L.A. §325.206 (1967).
56. M.C.L.A. §§323.9 (1967), 232.10 (Supp. 1972).
57. M.C.L.A. §323.103 (1967).
- 291 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
fUTIESOTA REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
In Minnesota, the state-wide agency in charge of pollution
control has been designated as the Minnesota Pollution Control
Agency.1 This agency is the successor of the Water Pollution
Control Commission, and, effective May 26, 1967, all powers
and duties that were vested in or imposed upon said commission
were transferred to, imposed upon, and vested in the Minnesota
Pollution Control Agency (Agency).2 This act also took most
related powers still remaining with the State Board of Health
and vested them within the Agency-3
The Agency is composed of nine members who are appointed by
the governor and with the advice and consent of the senate,
and who serve four-year terms.1* The Agency is under the super-
vision of an executive secretary who is the director of the
Agency.5
The Agency has the following powers and duties :
To administer and enforce all laws relating to the
pollution of any of the waters of the state;
To investigate the extent, character, and effect
of the pollution of the waters of this state and to
gather data and information necessary or desirable in the
administration or enforcement of pollution laws,
and to make such classification of the waters of
the state as it may deem advisable;
To establish and alter such reasonable pollution
standards for any waters of the state in relation
to the public use to which they are or may be put
as it shall deem necessary for the purposes of
water pollution control;
To make and alter reasonable orders requiring the
discontinuance of the discharge of sewage, indus-
trial waste or other wastes into any waters of the
state resulting in pollution in excess of the
applicable pollution standard established under
this subdivision;
- 293 -
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To require to be submitted and to approve plans
for disposal systems or any part thereof and to
inspect the construction thereof for compliance
with the approved plans thereof;
To issue, continue in effect or deny permits,
under such conditions as it may prescribe for the
prevention of pollution, for the discharge of
sewage, industrial waste or other wastes, or for the
installation or operation of disposal systems or
parts thereof;
To revoke or modify any permit issued under (its
authority) . . . whenever it is necessary, in the
opinion of the commission to prevent or abate
pollution of any waters of the state;
To conduct such investigations and hold such
hearings as it may deem advisable and necessary
for the discharge of its duties . . . and to
authorize any member, employee, or agent ap-
pointed by it to conduct such investigations
or hold such hearings.6
In granting these powers to the Agency, the legislature has
also declared that it shall be unlawful for any person to
construct, install or operate a disposal system, or any part
thereof, until plans therefore shall have been submitted to
the commission unless the commission shall have waived the
submission thereof to it and a written permit therefore shall
have been granted by the Agency. It is also unlawful for any
person to make any change in, addition to or extension of any
existing disposal system or part thereof that could materially
after the method or the effect of treatment without complying
with the permit procedures.8
The Agency has the authority to issue emergency orders.9 An
appeal may be taken from any final order, rule, regulation or
other final decision of the Agency in the district courts of
the state.10 The act provides for enjoining pollution of any
waters in violation of the act.11 Violation of any provision
of the act or of any regulation adopted by the Agency is a
misdemeanor. 1 2
The Agency is assisted by the Water Pollution Control Advisory
Committee in formulating a general statewide comprehensive
policy and plans for the prevention, itrol and abatement of
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pollution and in the establishment of standards.13 The com-
mittee is composed of two members from each sanitary region,14
and each congressional district of the state constitutes a
sanitary region for this purpose.15
Management agencies responsible for pollution control and
sewage treatment are operated at both the local and areawide
levels with the choice of organization being left to the citi-
zens of the areas involved.
In Minnesota, waste treatment management agencies include:
towns,16 regional sanitary sewer districts,17 metropolitan
sewer service boards18 and county boards within areas of the
county not organized into cities or villages.19 Any city or
village is authorized to manage sewage treatment facilities.20
Cities of the first class operating under a home rule charter
and not embraced within the limits of any sanitary district are
authorized to create and manage sewage treatment facilities via
special statutory provision.2 In addition, there are two
types of sanitary districts which may be organized for this
purpose. The first (type I), may be organized by two or more
contiguous cities of the first class which are discharging
sewage or industrial wastes, or both, into a common natural
watercourse.22 The second type of sanitary district (type II)
may be created for any territory embracing an area or a group
of two or more adjacent areas, whether contiguous or separate,
but not situated entirely within the limits of a single
municipality.2 3
Minnesota is also one of a few states which has recently
(1971) passed an Environmental Rights Act. It reads in
part:
The legislature finds and declares that each person
is entitled by right to the protection, preservation,
and enhancement of air, water, land, and other natural
resources located within the state and that each person
has the responsibility to contribute to the protection,
preservation, and enhancement thereof. The legislature
further declares its policy to create and maintain
within the state conditions under which man and nature
can exist in productive harmony in order that present
and future generations may enjoy clean air and water,
productive land, and other natural resources with which
this state has been endowed. Accordingly, it is in the
public interest to provide an adequate civil remedy to
protect air, water, land and other natural resources
located within the state from pollution, impairment, or
destruction.2 4
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1.2 Schematic Diagram of Existing Agencies
Minnesota Pollution Control Agency
GOVERNOR
State Planning Agency
Water Pollution
Control Advisory
Committee
Water Resources
Board
Department
of Health
Pollution
Control
Agency
Department of
Conservation
Division of
Water Quality
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208 (c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and
Construct New Works and to Operate and Maintain New and
Existing Works as Required by Any Areawide Plan. [§208
(c) (2) (C)].
All of the waste water treatment agencies noted in paragraph
1.1 have the express statutory authority needed to assure
compliance with this provision of the Act.25
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D) ] .
Metropolitan sewer service boards,26 unorganized areas in
- 296 -
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counties27 and type II sanitary districts28 each have express
statutory authority to accept and utilize grants or other
funds from the United States, the state, or any person, cor-
poration, or other entity for these purposes.
All other management agencies under discussion lack express
statutory authority in this respect. However, the lack of
express authority should not preclude compliance with
this section, as it would be an implicit power of a management
agency in the absence of express statutory language to the
contrary.
The Pollution Control Agency also has the authority to receive
and accept funds from any source.29
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208 (c) (2) (E) ] .
All management agencies possess the authority to assess waste
treatment charges.30 These powers will be discussed with more
particularity in paragraphs 2.3.1 and 2.3.2.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency. [§204 (b) (1) (A)] .
All management agencies are vested with charging powers as is
noted in Section 2.3, but each has its own independent source
of authority and all vary somewhat.
Towns have the authority to levy taxes and special assessments
and to do all other things necessary or convenient for the
maintenance and operation of a system.3l From this it can
reasonably be implied that towns can comply with this provision
Both regional sanitary sewer districts and unorganized areas
in counties are vested, by statute,32 with the same powers as
cities and villages generally possess in this regard. Such
agencies are directed to impose "just and equitable" charges
for sewage treatment and the statute further provides:
Such charges may be imposed with respect to facilities
made available by agreement with other municipalities or
private corporations or individuals, as well as those
owned and operated by the city or village itself.
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Charges made for sewer service directly rendered shall
be as nearly as possible proportionate to the cost of
furnishing the same, and sewer charges may be fixed on the
basis of water consumed, or by reference to a reasonable
classification of the types of premises to which service
is furnished, or by reference to the quantity, pollution
qualities and difficulty of disposal of sewage produced,
or on any other equitable basis including, but without
limitation, any combination of those referred to above.
Charges for connections to the facilities may in the dis-
cretion of the governing body be fixed by reference to the
portion of the cost thereof which has been paid by assess-
ment of the premises to be connected, in comparison with
other premises, as well as the cost of making or super-
vising the connections.33
First class cities operating under a home rule charter are
authorized to make equitable charges based in proportion to
the service or benefit rendered and may take into consideration
the quantity of sewage, concentration, strength, the effect in
ccneral which sewage may have in causing pollution of public
waters and the cost of disposal of such sewage.34
Metropolitan sewer service boards are authorized to allocate
treatment costs among all local government units using the sys-
tem. Charges are figured in proportion to the total volume of
sewage estimated to be attributable to each and the charge
1 lay be increased or decreased for each unit according to whether
it requires more or less treatment to produce a suitable ef-
fluent than that discharged by others. 5 In this context the
metropolitan sewer services boards would be billing local
government units as users and one could safely assume that
they, in turn, would be billing the actual users via their
own charging powers.
Type II sanitary districts are vested with charging powers,36
jut there is no specific formula stated in the statute.
iowever, the district is vested with the same powers as those
possessed by villages for these purposes,37 and since villages
\ave this authority so would this type of sanitary district.
In type I sanitary districts the statute mandates that:
Except as herein otherwise provided, all costs of
operation, maintenance and repair of joint or
common sewers and of all treatment and disposal works
and appurtenances thereto for a period of ten years
from and after commencement of construction of the
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disposal system and all costs of land and right of way,
construction of joint or common sewers, and of all treat-
ment and disposal works and appurtenances thereto shall
be a uniform charge upon the entire district, on the
basis of assessed valuation, exclusive of money and
credits, to be paid by a uniform annual tax upon the
property of such district; provided, that in the event
any such city of the first class has undertaken, or shall
undertake, by contract or otherwise, to convey, treat,
and dispose of the sewage of territory not included
within the boundaries of such district, such city shall
pay the entire cost of such additional capacity of joint
intercepting sewers and treatment and disposal works
as may be necessary for, and the cost of operation,
maintenance, and repair incurred in the conveying,
pumping, treatment, and disposal of sewage from such
territory not included within the boundaries of such
city, such additional cost to be determined by the
board of trustees, and included in such city's proportion
of the budget, as provided herein.38
Thus, during the first 10 years of operation the agency would
not be able to comply- However, compliance would be possible
later as the statute reads:
From and after the 10-year period from the commencement
of construction, the costs of operation, maintenance,
and repair of joint and common sewers, the construction
of new joint and common sewers, and the construction,
operation, maintenance, and .repair of all treatment and
disposal works and appurtenances thereto shall be al-
located in proper proportion to each city within the
sanitary district, upon the basis of the total annual
volume of sewage contributed by each city as the same
shall be measured or estimated and each such city shall
pay such share of the total cost thereof as the volume
of sewage contributed by the city and the territory
served by such city under contract or otherwise bears
to the total volume of sewage. In such estimate of the
costs to be borne by each city, there shall be taken
into account not only the sewage and wastes of each
such city that are intercepted and treated, but an estimate
shall be made of the sewage wastes of each city which
enter or are discharged directly or indirectly into any
stream or watercourse flowing through or adjacent to such
district or any part thereof, and such untreated sewage
and wastes shall be considered as contributed by such city.39
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2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [ § 204 (b) (1) (B)].
No agency has the express statutory authority to perform this
particular function, but all are vested with certain contractual
powers from which this authority may be implied.
Type II sanitary districts appear to have the statutory power
which is closest in this respect in that they may accept grants
from the United States and thereafter may "enter into any
agreement required in connection therewith."40
All cities and villages, except cities of the first class op-
erating under a home rule charter, appear to possess this author-
ity by implication. The combination of their general charging
powers41 (discussed in 2.3 and 2.3.1, supra) and their author-
ity to contract with industrial users'12 indicates that they
would be able to comply with this requirement. Although such
contracting authority is general in its scope, there does not
appear to be any statutory obstacles that would prevent satis-
factory performance in this manner.
Regional sanitary sewer districts43 and unorganized areas in
counties1*4 have the same powers as cities and villages in this
regard. In addition to this, unorganized areas in counties have
a special statutory power to assess a special benefits charge
against benefited property.45
Towns possess the authority to exercise the same powers as
villages in this regard.46
In areas served by metropolitan sewer services boards, the focus
is on local government units as users and, thus, there is no
express provision relating to industrial users. However, the
board has broad contractual powers47 which could probably be
exercised in this manner. In addition, the board may require
"persons" which, by definition,48 includes corporations and other
private entities, to use the metropolitan system49 and to pay
for it.50
First class cities operating under a home rule charter appear
to lack this authority unless it can be imposed via their
home rule powers or general statutory charging scheme.51
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Type I sanitary districts have the express statutory authority
to enter into contracts with industrial users52 and should
have no problem with compliance here. The general charging
provisions of this type of sanitary district discussed in Sec-
tion 2.3.1 do not appear to apply to this type of situation53
and thus are not an impediment.
2.4 Authority to Incur Short- and Long-Term Indebtedness.
[§208(c) (2) (F)].
All management agencies, except first class cities operating
under a home rule charter which are forbidden by their charters ,
have express statutory authority to incur such indebtedness. 5 **
Some of the agencies are subject to certain limitations with
regard to bond issues and these will be noted when applicable.
Type I sanitary districts are not authorized to issue bonds in
the name of the district55 but may cause them to be issued in
the name of any city included within the district if such city
fails to provide the funds for its share of the capital costs
involved. The cities included within such a district are
authorized to issue bonds, without a vote of the citizens in-
volved, with the last installment thereof to become due and
payable not more than 30 years from the date of issuance.57
Such bonds are subject to a five percent debt limitation
based upon all property within the district.58
Metropolitan sewer service boards are authorized to issue
both revenue and general obligation bonds and neither type of
issue is subject to a vote of the electorate.59 There is no
net debt limitation50 and the board may issue bonds up to the
amount of the cost of the construction or improvement involved.
The interest rate shall not exceed seven percent61 and the
maturation date shall not extend past 30 years.62
Unorganized areas in counties are authorized to issue either
general obligation or revenue bonds63 in such amount as may be
necessary to defray, in whole or in part, the cost of estab-
lishing and constructing a system.6tt The bonds shall mature
in no more than 30 years from the date of issuance and bear a
rate of interest not exceeding eight percent per annum.65 An
election shall be required to authorize the issuance of these
obligations if less than 80 percent of the cost of the improve-
ment is to be assessed against the property benefited by the
improvement.6 6
All other agencies are authorized to issue either general ob-
ligation or revenue bonds for construction purposes.67 Except
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as otherwise provided no agency except a city of the first class
shall incur or be subject to a net debt in excess of 20 percent
of the assessed value.68 First class cities are subject to a
five percent limitation unless their charter provides other-
wise. Generally such issuances are not subject to voter ap-
proval.70 Interest rates may not exceed seven percent per
annum7l and such bonds shall mature in no more than 30 years
from the date of issuance.72
2.4.1 General Obligation Funding.
All agencies have the authority to employ this type of debt.
See 2.4 supra for further details.
2.4.2 Special Funds and Revenue Funding.
All agencies have this power. See 2.4 supra for details.
2.4.3 Other Methods of Financing.
There is a Minnesota state water pollution control fund which
is created by the issuance of bonds of the state of Minnesota.73
Local agencies are extended grants from this fund under certain
circumstances and local agencies may also borrow against this
fund.7 4
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan that Each Participating Community Pay
Its Proportionate Share of Treatment Costs. [§208(c)(2)(G)]
Metropolitan sewer service boards75 and type I sanitary dis-
tricts76 are endowed with the express statutory authority to
comply with this provision. All other agencies lack the
express statutory authority, but possess such authority through
implication via their general charging and contractual powers
which were more thoroughly discussed in Section 2.3 supra.
This requirement is not applicable to towns and first class
cities operating under a home rule charter since they do not
serve more than one community.
The Minnesota Pollution Control Agency could achieve this via
refusal to issue the necessary permits until compliance is
assured.
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2.6 Authority to Refuse to Receive Any Wastes from Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§ 20 8 (c) (2) (H) ] .
No management agency has express authority to do this, although
they do have a certain degree of control of what types of
sewage they would agree to treat.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
It is presumed that each agency would possess this power via
their general powers of contract. They would also have a
certain degree of control in this respect via their general
powers of regulation.
The Pollution Control Agency would certainly possess such
authority through its permit powers.7 8
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply with
the Areawide Plan.
The Pollution Control Agency has the authority to compel
performance of its orders, and in so doing can compel a
municipality to exercise its powers so as to comply with
an order of the agency.79 In lieu of such enforcement action,
the Agency may assume the powers of the recalcitrant muni-
cipality in order to construct, operate and maintain a dis-
posal system or part thereof.80
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)].
All management agencies have the requisite authority to comply
with this provision.81 Metropolitan Sewer Boards and Type I
Sanitary Districts have express statutory authority to require
pretreatment of industrial wastes.82 All other districts have
the power to "maintain" their facilities, which implies the power
to require preliminary treatment of harmful wastes.
3.0 SUMMARY
In most respects Minnesota agencies will be able to comply with
the requirements of the act. However, they have certain de-
ficiencies .
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3.1 Deficiencies
Certain agencies lack the express statutory authority to ac-
cept and utilize grants (paragraph 2.2), and legislation would
be helpful.
Type I sanitary districts lack the appropriate charging powers_
for the first 10 years of operation (paragraph 2.3.1), and legis-
lation is needed to remedy this situation.
All agencies lack the express statutory authority to assure
that full recovery will be had from industrial users of the
federal portion of construction costs (paragraph 2.3.2), and
legislation would be helpful in this regard.
Although it is not necessary within the framework of the
Minnesota statute, type I sanitary districts lack the authority
to issue bonds in their own name (paragraph 2.4).
Not all agencies have express authority to require all parti-
cipating communities to pay their proportionate share of costs
of treatment (paragraph 2.5); legislation would be helpful so
as to assure compliance through express statutory authoriza-
tion similar to that applicable to metropolitan sewer service
boards and type I sanitary districts.
All agencies lack the powers needed to refuse wastes from a
municipality or subdivision thereof (paragraph 2.6). Although
the Pollution Control Agency can effectively control this
through its permit system, legislation authorizing treatment
agencies to impose sanctions, declare moratoriums, etc., might
be helpful.
4.0 BIBLIOGRAPHY
1. Haskell, E. H., Managing the Environment: Nine States
Look for New Answers (1971) .
2. Haik, Raymond A., William C. Walton and David L. Hills,
Aspects of Water Resources Law in Minnesota. Minneapolis,
Minnesota University,Graduate School, Water Resources
Research Center, 1969. 143 pp. (WRRC Bulletin 11).
3. Minnesota. Pollution C6ntrol Agency. Our Environment
Where Are We Heading? Presented by John P. Badalich to
The Minnesota Society of Professional Engineers, Rochester,
Minnesota, June 13, 1970. Minneapolis, Minnesota Pollution
Control Agency, 1970. 12 pp.
- 304 -
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4. Minnesota. Pollution Control Agency. Pollution Control
Agency: pollution policies, regulations, organization and
activities. Presented by John P. Badalich to the Environ-
ment Committee of the Citizens League, St. Paul, Minnesota,
December 16, 1969. 23 pp.
5. Minnesota. Pollution Control Agency. Summary of Estimated
Program Costs, fiscal 1972 and 1973. Minneapolis, Minnesota
Pollution Control Agency, 1970. Various pagings.
6. Planning Research Corporation, Los Angeles, California.
Pollution Control through Land Use Management. Prepared
for Minnesota Pollution Control Agency, 1970, 2 v.
7. Walton, William C., Raymond A. Haik and David L. Hills,
Codified and Uncodified State Laws and Municipal Ordinances
Bearing on Water and Related Land Resources in Minnesota.
Minneapolis, University of Minnesota, Graduate School, 1968.
640 pp. (WRRC Bulletin (9)).
8. Walton, William C. and David L. Hills, Water and Related
Land Resources, State Administration, Legislative Process
and Policies in Minnesota, 1970. Minneapolis, University
of Minnesota, Graduate School, Water Resources Research
Center, 1971. 344 pp. (WRRC Bulletin 27).
FOOTNOTES
(All references are to Minnesota Statutes Annotated unless
otherwise noted)
1.
2.
3.
4.
5.
6.
7.
8.
9-
10.
11.
12.
13.
14.
15.
16 .
§116.02 subd.
§116.02 subd.
See generally
§116.02 subd.
§116.04.
§§115.03, 116
§115.07 subd.
§115.07 subd.
§115.05 subd.
§115.05 subd.
§115.07 subd.
§115.07 subd.
§115.17 subd.
§115.17 subd.
§115.16.
§115.50.
1.
5.
, §116.01 and the explanatory comments thereto.
1.
.02 subd. 5.
1.
3.
2.
3.
4.
6; see also §115.47.
1, subd. 6.
1.
- 305 -
-------
17. §115.61 et seq.
18. §473C.01 e_t seq.
19. §§116 A. 01 e_t seq. , 380 .01 et seq.
20. §§444.075, 429.021, 429.051.
21. §443.14.
22 . §445 .01 et. seq.
23. §115.19.
24. §116B.01 e_t seq.
25. Towns, §115.50; regional sanitary sewer districts §115.61;
444.075; metropolitan sewer service boards 473.05 subd. 1;
unorganized areas in counties, §§116A.01 subd. 2, 380.01;
any city or village except first class cities operating
under a home rule charter, §§444.075 subd. 1, 429.021,
429.011 subd. 2; first class cities operating under a home
rule charter, §§443.14; type I sanitary district, §445.10;
and, type II sanitary district, §115.26 subd. 1.
26. §473C.15, subd. 5.
27. §§116A.23, 380.18.
28. §115.25 subd. 5.
29. §115.06 subd. 2.
30. Towns, §115.50; regional sanitary sewer districts §115.61;
metropolitan sewer service boards §4730.08; unorganized
areas in counties §§116A.01 subd. 2, 116A.22, 380.04; cities
and villages, generally, §444.075 subd. 3; first class cities
operating under a home rule charter; §443.14; type I sanitary
district, §445.17; type II sanitary district, §§115.33 subd.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42 .
43.
44.
45.
46.
47.
48.
49.
50.
4, 115.30.
§115.50
§§115.61, 116A.01 subd.
§444.075 subd. 3.
§443.14.
§473C.08 subd. 2 (a) , (b)
§115.33.
§115.30; see also §444.0
§445.17 subd. 1.
Id.
§115.25 subd. 7.
§§444.075 subd. 3, subd.
§§444.075 subd. 3, subd.
§115.61.
§116A.01 subd. 2.
§116A.22.
§115.50.
§4730.15 subd. 3.
§473C.02 subd. 5.
§473C.07 subd. 3.
§§473C.07, 473C.08.
2.
.
75
4
4
subd. 3.
subd. 5
- 306 -
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51.
52,
53,
54.
See generally, §443.14.
F445.09(l), (2), (3).
§445.17 subd. 1.
Towns, §115.40; regional sanitary sewer districts, §115.61;
first class cities operating under a home rule charter,
§475.52 subd. 2; type II sanitary districts, §115.34; and
cities and villages generally, §444.075 subd. 2. Note also
that it is §444.075 which incorporates the provisions of
chapter 475 and this makes its requirements applicable to
certain of these agencies. Also, metropolitan sewer ser-
vice boards, §4730.12 subd. 2, subd. 3; unorganized areas
counties, §§116A.01, 116A.20, 116A.21; and type I sani-
in
tary districts , § §
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
§445.
Id. ,
§445.
§445.
§473C
Id.
Id. ,
§473C
11.
§445.17
12.
17
.12
subd.
subd
§475.55
.12
§§116A.O
§116A
§116A
§116A
.20
.20
.20
See note
§475.
§475.
§475.
§475.
§475.
§§116
§116.
§473.
§445.
Reqio
53
53
58
55
54
.16
16
08.
09
nal
subd
subd.
9.
. 3.
subd.
. 3,
1 subd. 2 ,
subd
subd
subd
54,
subd .
subd .
subd.
subd.
subd.
, 116
subd.
subd.
sani
. 1,
. 3.
. 2.
supra
1.
3.
1.
1.
1.
.17,
8.
5.
tarv
445.11, 445.12 and 445.17
7 (note five percent limitation)
1.
475.54 subd. 1.
116A.20 subd. 1,
subd. 2.
subd. 2
116.18.
sewer districts §115.61; unorganized
areas in counties, 116A.01 subd. 2; cities and villages
generally, 444.075 subd. 5; and type II sanitary districts,
§§115.27 subd. 2, subd. 3, subd. 4, 115.33.
78. §115.03.
79. §115.47.
80. §115.48.
81. Towns, §115.50; Regional sanitary sewer districts, §115.61;
metropolitan sewer service boards, §§473C.01, 473C.02 subd.
9; unorganized areas in counties, §116A.01 subd. 2; cities
and villages generally, §444.075 subd. 1; first class cities
- 307 -
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operating under a home rule charter, §443.14; type I sani
tary districts, §445.09; and type II sanitary districts,
§115.19.
82. §§473C.07, 445.09-
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
OHIO REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
In Ohio the state-wide agency in charge of water pollution
control is the Environmental Protection Agency.l It is headed
by the Director of Environmental Protection who is charged
with administering the laws and regulations pertaining to the
prevention, control and abatement of water pollution. In
helping to carry out his functions the director may designate
one of his staff to serve "as an ombudsman and expediter be-
tween the citizens and the environmental protection agency in
all matters of the environment.3
The Director has the authority to develop plans and programs
pertaining to water pollution control in Ohio1* and may issue,
modify or revoke orders to prevent, control or abate water
pollution.5
In furtherance of his functions the Director is charged with
adopting standards of water quality applicable to the waters
of the state6 and may adopt effluent standards for discharges
into such waters.7
Actual control is carried out via a permit system which is
designed to control the discharge of sewage and industrial
wastes.8
The Director is vested with the enforcement powers needed to
assure compliance with the Ohio Act (either by himself or through
the Ohio Attorney General's office)9 and may, on his own initi-
ative, investigate or make inquiries in any manner into any
alleged act of pollution or failure to comply with orders or
standards.l°
Failure to comply with the Act or with the Director's orders
or standards may result in the assessment of very serious
penalties.ll Appeal of the agencies actions and orders may
be had from the Environmental Board of Review.12
The Agency may exercise all incidental powers necessary to
carry out the purposes of the Ohio Act13 and is the agency of
- 309 -
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the state which deals with the federal government regarding
the affairs of water pollution control.
I
Management of waste water treatment facilities is carried out
at both the local-municipal15 and district levels.16 There
are several types of districts and they include: conservancy
districts,17 sanitary districts,18 county sewer districts,19
regional sewer districts2 ° and the Ohio Water Development
Authority.21
1.2 Schematic Diagram of Existing Agencies
State of Ohio
Legislature
Environmental Protection Agency
Director
Local Management Agencies
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND SE-
LECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c) (2) (C)].
All of the agencies under consideration have sufficient express
statutory authorization to assure compliance with the require-
ments of this section.22
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D) ] .
Regional sewer districts2 3 and the Ohio Water Development
- 310 -
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Authority21* have the express statutory authority to accept
and use such funds.
Conservancy districts,25 sanitary districts26 and municipali-
ties27 are vested with the express statutory authority to
acquire real or personal property by donation for the works
and improvements of the district. This would probably be suf-
ficient authorization to assure compliance with this provision.
County sewer districts lack express statutory authorization
of any type in this regard.
However, in Ohio, actual receipt and administration of state
and federal monies is handled by the Director of Environmental
Protection.28 All applications for such grants by the local
management agencies must be analyzed and approved by his office
before the local agencies receive such funds.29
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208(c) (2) (E) ] .
All of the management agencies under consideration are vested
with the authority needed to raise revenues of this type30
and they will be discussed with more particularity in para-
graph 2.3.1, infra.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b)(1)(A)].
Although there are differences in the statutory language re-
lating to the charging powers of the various agencies, it
seems likely that all are capable of compliance. The Ohio
Water Development Authority will certainly be able to comply
as it is directed to base charges upon the volume of sewage
received as well as the degree of treatment required.31 Muni-
cipalities are directed to charge "just and equitable" rates;32
county sewer districts are required to charge "reasonable"
rates;33 conservancy districts34 and sanitary districts35 are
directed to charge in proportion to the "benefits" extended;
and regional sewer districts are to arrange charges according
to contract.36
- 311 -
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2.3.2 Full Recovery Will Be Had from the Industrial
User of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [§204(b)(1)(B)].
The only agency vested with the express statutory authority
needed to assure compliance with the requirements of this
provision is the Ohio Water Development Authority.37 Since
none of the other local agencies have such express authority
one would be required to assume that compliance could be re-
alized either via their general contracting and charging powers
or that legislation would be needed to assure such authority.
Another possible source of power which could be used to assure
compliance with this provision would be the permit issuing
authority to the Ohio Environmental Protection Agency. As
such, the agency could require a contractual arrangement of
this nature as a pre-requisite to the issuance of a permit.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)] .
All of the Ohio agencies under consideration have the authority
to employ these financing techniques.38
2.4.1 General Obligation Funding.
All of the agencies may issue general obligation bonds39 with
the following limitations being imposed by statute: When
issued by sanitary districts, such bonds may bear no more
than eight percent (8%) interest per annum and such bonds
must mature within thirty years of their issuance;^° in county
sewer districts, voter approval is required previous to the
issuance of such bonds and the issuance may not exceed five
percent (5%) of the assessed valuation of property benefited;41
bonds issued by the Ohio Water Development Authority and re-
gional sewer districts are required to mature within forty
years of their issuance;1*2 such bonds, when issued by munici-
palities, are required to mature within twenty years of the
date of issuance.43 There are no other specific restrictions
although such bonds issuances must comply with the Ohio general
bonding laws.4 4
2.4.2 Special Funds and Revenue Funding.
Conservancy distric - may issue "anticipatory bonds" for up
to thirty years and :=uch bonds may bear interest not to exceed
- 312 -
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eight percent (8%) per annum.1*5 Such districts may also issue
revenue bonds which may bear interest not exceeding eight per-
cent (8%) per annum for up to forty years.1*6
Regional sewer districts'*7 and the Ohio Water Development Au-
thorityl|8 are authorized to issue such bonds for up to forty
years and must create a sinking fund to assure payment of inter-
est and principal when due.
Municipalities are constitutionally authorized to issue revenue
bonds in order to finance public utilities.1*9 County sewer
districts are not expressly authorized to issue revenue bonds.
Sanitary districts are expressly forbidden to issue such bonds,
according to the Ohio Attorney General.50
2.4.3 Other Methods of Financing.
Conservancy districts,51 regional sewer districts52 and the
Ohio Water Development Authority53 are expressly authorized
to refund bonds if necessary-
2.5 Authority to Assure in Implementation of Its Waste Treatment
Management Plan That Each Participating Community Pay Its
Proportionate Share of Treatment Costs. [§208(c) (2) (G)] .
Without express legislation to the contrary, one may assume
that any of the local agencies could assure compliance with
this provision. In addition, county sewer districts,51* re-
gional sewer districts,55 municipalities56 and the Ohio Water
Development Authority57 are vested with express authorizations
in this regard.
2.6 Authority to Refuse to Receive Any Wastes from Any Muni-
cipality of Subdivision Thereof, Which Does Not Comply
With Any Provisions of an Approved Plan Under §202 Applic-
able to Such Area. [ §208 (c) (2) (H) ] .
None of the agencies under consideration are vested with the
express statutory authority to do exactly what is envisioned
by this requirement of the Act. However, conservancy districts,
sanitary districts59 and municipalities6 each have the author-
ity to protect their treatment systems by refusing to accept
particular types of waste and this would presumably include
"cut-off" powers. Both the Ohio. Water Development Authority61
and regional sewer districts62 have express authorization to
promulgate rules and regulations pertaining to use of their
systems and perhaps this power could be used to assure compli-
ance with approved plans. Regional sewer districts have the
pover to deny service to users delinquent in payment of treatme t
5 8
- 313 -
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changes.63 County sewer districts lack express authori-
ization of any type in this regard.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
All of the local management agencies possess the express statu-
tory authority needed to assure compliance with the requirements
of this provision.6^ In addition, the Director of Environmental
Protection is vested with the express authority to perform this
function;65 such function could also be fulfilled by the Ohio
Environmental Protection Agency through its permit-issuing au-
thority .
2.6.2 Authority to Assess Penalties, Surcharges and Similar
Sanctions Against Municipalities or Subdivisions
Thereof Which Do Not Comply With the Areawide Plan.
None of the agencies have any express authority to take action
against municipalities in this manner, but conservancy dis-
tricts,66 sanitary districts,67 county districts,68 regional
districts69 and the Ohio Water Development Authority70 have the
power to assess penalties for failing to pay service charges
when due and to issue fines for violation of rules of regu-
lation by users.
In addition, penalties and fines may be imposed for failure
to comply with the requirements of the Environmental Protec-
tion Act or with rules, regulations or orders issued by the
Director of the Environmental Protection Agency.71
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I) ] .
All of the management agencies under consideration possess
the requisite statutory authority needed to assure compli-
ance with the recmirements of this provision.72
3.0 SUMMARY
For the most part, the Ohio management agencies will be able
to assure compliance with the requirements of the Act. How-
ever, each of the agencies possesses certain deficiencies in
varying degrees and such deficiencies will be analyzed in
paragraph 3.1, infra.
3.1 Deficiencies
In Ohio, only regional sewer districts and the Ohio Water
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Development Authority are vested with the express statutory
authority to accept and utilize grants or other funds from
any source for waste treatment management purposes, and county
sewer districts lack any authority in this respect. There-
fore, it would be helpful if legislation were passed to assure
that all agencies could comply with this provision. (2.2)
All agencies except the Ohio Water Development Authority lack
the express statutory authorization to base waste treatment
charges on strength and composition of effluent. Legislation
would be helpful in this regard. (2.3.1)
All agencies except the Ohio Water Development Authority lack
the express authorization to recover such construction costs
from industrial users. Legislation would probably be required
to assure compliance. (2.3.2)
Sanitary districts, county sewer districts and municipalities
lack the authority to issue revenue bonds. (2.4.2)
Although it would not be absolutely necessary, legislation
would be helpful to assure compliance with the provisions of
the act that require each participating community pay its pro-
portionate share of treatment costs. (2.5)
Legislation would be required to assure compliance with the
provision that the treatment agency have authority to refuse
wastes from any non-complying municipality. (2.6)
4.0 BIBLIOGRAPHY
1. Note, Legislative Responses to Air and Water Pollution,
33 Ohio S.L.J. 860 (1972).
2. Ohio Legislative Service Commission, Air and Water Pol-
lution, Staff Research Report no. 84 (1967).
FOOTNOTES
1. Ohio Rev. Code Ann. §§3745.01, 6111.03 (Page 1954).
2. Id.
3. O.R.C.A. §3745.011.
4. O.R.C.A. §6111.03(A).
5. O.R.C.A. §6111.03(H).
6. O.R.C.A. §6111.041.
7. Id.
8. O.R.C.A. §§6111.03(J), (M), 6111.04, 6111.45.
- 315 -
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9.
10,
11.
12.
13,
14,
15,
16.
17,
18,
19.
20,
21.
22,
0
0
0
0
0
0
O.R
See
C,
.C,
.C,
.C,
.C,
Czv
-tl
ğ \' £i.
Notes
A.
A.
A.
A.
A.
§§3745.011(f), 3745.08, 3745.09, 6111.03(L)
§6111.05.
§6111.07, 6111.99.
§3745.04.
§6111.03(0).
§6111.03 (N) .
§§715.40, 715.43, 717.01(J), 703.01
17-21, infra.
0
0
0
0
0
.R.
.R.
. R.
A.
A.
A.
A.
A.
§§6101.04757
§§6115.04(D)
§6117.01.
K "56119. 01 (B) ,
6101.15 (c) .
6115.18(c).
6119.06(G), 6119.19.
§§6121.03, 6121.04(F)
§6101.15(c)
sanitary
districts,
Conservancy districts, O.R.C.A.
districts O.R.C.A. §6115.18(c); county sewer
O.R.C.A. §6117.01; regional sewer districts, O.R.C.A.
§§6119.06(G), 6119.19; the Ohio Water Development ~ '
ity 0
§§715
Author-
R.C.A. §§6121.03, 6121.04(F); municipalities, O.R.C.A.
40, 715.43, 717.01(J).
23.
24.
25.
26.
27.
28.
29.
30.
O.R.C.A
O.R.C.A
O.R.C.A
O.R.C.A
O.R.C.A
O.R.C.A
O.R.C.A
Conserv
§6119.06(T).
§6121.04 (I) (N) .
§6101.15 (K) .
§6115.18 (H) .
§717.01(V).
§§3745.01 (E) , 6111.03(C) (D)
§6111.40.
6101.53; sani~
:y districts, O.R.C.A. §§6101.48,
tary districts, O.R.C.A. §§6115.48, 6115.53; county sewer
districts, O.R.C.A. §§6117.02, 6117.04, 6117.06, 6117.251,
6117.30; regional sewer districts, O.R.C.A. §§6119.06(1),
6119(V), 6119.09; Ohio Water Development Authority, O.R.C.A.
"§6121.04(Q), 6121.042, 6121.06, 6121.13; municipalities,
§§727.01, 729.11, 729.49.
§6121.041.
§§727.01(B), 729.49.
§6117.30.
§§6101.48, 6101.49, 6101.53.
§§6115.48, 6115.49.
§§6119.06(V), 6119.09.
§6121.041.
icy districts, 0.R.C.A.§ § 6101.451, 6101.46, 6101.47,
6101.56; sanitary districts, -O.R.C.A. §6115.47; County
sewer districts, O.R.C.A. §6117.08, 6117.25, 6117.251;
regional sewer districts, O.R.C.A. §§6119.06(J), 6119.12,
6119.30, 6119.36; Ohio Water Development Authority, O.R.C.A.
6121.03, 6121.04(H); municipalities O.R.C.A. §729.11
31.
32.
33.
34.
35.
36.
37.
38.
O.R.C.A
O.R.C.A
O.R.C.A
O.R.C.A
O.R.C.A
O.R.C.A
O.R.C.A
O.R.C.A
Conserv,
- 316 -
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39. Conservancy districts, O.R.C.A. §§6101.47, 6101.50; sani-
tary districts, §6115.50; county sewer districts, §§6117.08,
6117.25, 6117.251; regional sewer districts, O.R.C.A.
§6119.12; Ohio Water Development Authority, O.R.C.A.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
§6121.06; municipalities, §729.11.
O.R.C.A. §6115.50.
O.R.C.A. §6117.311.
O.R.C.A. §6121.06, 6119.12.
O.R.C.A. §729.11
O.R.C.A. §133.01 et seq.
O.R.C.A. §6101.50.
O.R.C.A. §6101.501.
O.R.C.A. §6119.12.
O.R.C.A. §§6121.03, 6121. 04 (H) , 6121.06.
Const, of Ohio, Art. 18 §12.
1964 Opinions of Atty. Gen. 1579.
O.R.C.A. §6101.501.
O.R.C.A. §6119.12.
O.R.C.A. §6121.06.
O.R.C.A. §§6117.38, 6117.41.
O.R.C.A. §6119. 06(P), 6119.09.
O.R.C.A. §§729.42, 729.43, 729.45.
O.R.C.A. §§6121.041, 6121.13.
O.R.C.A. §§6101. 19(A) (S) , 6101. 19 (C) .
O.R.C.A. §6115. 23(E) .
O.R.C.A. §729.51.
O.R.C.A. §6121. 04(F).
O.R.C.A. §§6119.06 (N) , 6119.08.
O.R.C.A. §6119. 06 (V).
Conservancy districts, O.R.C.A. §§6101.19(3)
sanitary districts, O.R.C.A. §§6115.23, 6115
sewer districts, O.R.C.A. §§6117.03, 6117.04
sewer districts, O.R.C.A. §§6119.03, 6119.06
Water Development Authority, O.R.C.A. §6121.
palities, O.R.C.A. §729.45.
O.R.C.A. §6111. 03(H) (3) .
O.R.C.A. §§6101.59, 6101.99.
O.R.C.A. §6115.99.
O.R.C.A. §§6117.02, 6117.37, 6117.99.
O.R.C.A. §§6119. 06(V) , 6119.09.
O.R.C.A. §6121.99.
O.R.C.A. §§6111.07, 6111.99.
Conservancy districts, O.R.C.A. §§6101. 01 (B)
, 6101.72;
.68; County
; regional
(X) ; Ohio
041; munici-
, 6101. 04 (H)
6101.15 (C); sanitary districts,
county sewer districts. O.R.C.A.
O.R.C.A. §6115.01 (B) ;
§6117.02; regional sewer
districts, O.R.C.A. §§ 6119 . Oil (C) , 6119.01KJ), 6119. 06 (H)
Ohio Water Development Authority, O.R.C.A. 6121.04(G)
municipalities, O.R.C.A. §729.49.
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
WISCONSIN REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Pollution control and state-level waste water management powers
are placed, via statute, within the Department of Natural Re-
sources (DNR).1 The Division of Environmental Protection (DEP)
is the administrative arm of the DNR responsible for fulfilling
these duties, and it is further divided into bureaus to increase
its effectiveness.2 The bureau herein important for the pur-
poses of this study is the Bureau of Water Supply and Pollution
Control.3
The state is divided into regions,4 and each region is served
by a regional water resources board.5 The DNR is charged with
formulating a long range, comprehensive state water resources
plan for each region which shall thereafter be carried out by
the DNR.6 The DNR is also charged with adopting rules setting
standards of water quality to be applicable to the waters of
the state.7 The DNR may issue enforcement orders which shall
be enforced in court by the attorney general when necessary.6
The DEP's Bureau of Water Supply and Pollution control is in
charge of operating the permit functions. Its powers in this
regard are as follows :
This Bureau reviews all the plans, specifications,
and issues permits for new and modified public
water supply systems, sewers, sewage treatment
and collection systems as well as public and pri-
vate industrial waste treatment facilities.9
Monitoring is statutorily vested in the DNR10 and it monitors
wastes of all kinds which are discharged into municipal sewerage
systems.11 The monitoring is, in fact, conducted at the state
level by the DEP's Bureau of Standards and Surveys. The Bureau
monitors' all water bodies and drainage basins and has set up
an automatic monitoring system along major waterways.12
The management agencies responsible for sewage treatment are
a localized character. It may be conducted by cities ,:3 by
utility districts,14 by any two or more adjoining governmental
units, by town Sanitary Districts,15 by Metropolitan Sewerage
- 319 -
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Districts1 or by any town, village or city in addition to all
other methods provided by law.
1 8
There are two types of Metropolitan Sewerage Districts and each
is run by a Metropolitan Sewerage Commission. The first type
can be created "in contiguous territory containing two or more of
any of the following municipalities: any city or village in its
entirety or any township of part thereof, located in one or more
counties . . . "19 The second type may be created "in any county
having a population of 500,000 or more where the common council
of any city of the first class" so decides.20
Utility districts are used in lieu of town sanitary districts
in certain situations and when so used have exactly the same
powers as town sanitary districts.21 Therefore, Utility dis-
tricts will receive no specific mention throughout part II,
but the reader should remember that the discussion of the powers
of town sanitary districts applies likewise to utility districts.
- 320 -
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I
U)
DEPARTMENT OF NATURAL RESOURCES
State of Wisconsin
I Planning [
DIVISION OF
ENVIRONMENTAL
PROTECTION
Bureaus of:
Air Pollution
Control &
Solid Waste Disposal
Standards &
Surveys
Water & Shcreland
Management
Water Supply &
Pollution Control
OFFICE
OF THE
SECRETARY
Water Resources Council
(Advises DNR)
[ Legal Counsel [
DIVISION OF
FORESTRY,
WILDLIFE &
RECREATION
Bureaus of:
Fire
Control
Fish
Management
Forest
Management
Game
Management
Law
Enforcement
Parks &
Recreation
[ Finance [
| Environmental Impact [
FIELD
DISTRICTS
Lake Michigan
North Central
Northwest
West Central
Southern
Southeast
DIVISION
OF
SERVICES
****
Bureaus of:
Clerical
Data Systems
Engineering
Personnel
Real Estate
Research
Aid Programs
Trust Lands &
Investments*
*A division attached to DNR for administrative purposes only.
_L
DIVISION OF
TOURISM &
INFORMATION
****
Bureaus of:
Commercial
Recreation
Information &
Education
Vacation &
Travel Services
o
n>
3
n
o
O
Ml
H-
Ul
ft
I
-------
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND SELECTED
RELATED SECTIONS OF THE ACT.
In Wisconsin, it appears that the various functions required --
by whatever areawide plan that will come into existence can
be performed by various different existing agencies at both the
state and local levels. Therefore, the areawide plan should
provide which agency will be responsible for each required func-
tion. Currently the operation of publicly owned waste treatment
works is carried out by cities, town sanitary districts, two
types of metropolitan sewerage districts and utility districts.
Additionally, any two or more adjoining municipalities may com-
bine their sewerage treatment efforts, or any city, town or
village may establish sewage treatment, via special statutory
provision, in addition to all other methods provided by law. 2
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c) (2) (C) ].
All management agencies in Wisconsin have either express or
legally implied authority to comply with this provision.
Cities have the power to construct systems of sewerage.23 Any
two adjoining governmental units may jointly construct, operate
and maintain a joint sewerage system, inclusive of the neces-
sary intercepting sewers and sewerage treatment works.24 Such
joint action shall be carried out by a sewerage commission.25
The town board of any town may establish town sanitary districts,26
run by a town sanitary district commission.27 The commission
shall project, plan, construct and maintain the sewerage sys-
tem and is authorized to take any proceedings necessary to carry
out such powers and duties. Metropolitan sewerage districts
may be created,28 and are run by a metropolitan sewerage com-
mission.29 The commission has the authority to plan, construct,
maintain and operate sewage disposal works.30 In addition to all
other methods provided by law, any town, village or city may con-
struct, acquire or lease, extend or improve any plant and equip-
ment within or without its corporate limits for the collection
treatment and disposal of sewage.31
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes
[§208(c)(2)(D)].
The DNR may accept gifts and grants from any private or public
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source for any purpose under its jurisdiction and and may expend
or use them for the purpose for which received.32
All management agencies are expressly authorized to receive
funds from almost any source including federal sources.33
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§ 20 8 (c) (2) (E) ] .
All waste treatment management agencies have express statutory
authority to raise revenues via assessment of waste treatment
charges.
Town sanitary districts have the authority to establish sewerage
service charges,31* and must use the same charging system as any
town, village or city.35 Metropolitan Sewerage Commissions have
the power to assess charges based upon the estimation of annual
operation and upkeep expenses.36
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency. [§204(b) (1) (A)].
All agencies have the requisite statutory authority to provide
for compliance with this provision.
The statutory provision for towns, cities and villages offers
a rather wide range of choices :
For the purpose of making equitable charges for all
services rendered by the sewerage system to the
municipality or to citizens, corporations and other
users, the property benefited thereby may be classi-
fied, taking into consideration the volume of water,
- including surface or drain waters, the character of
the sewage or waste and the nature of the use made
of the sewerage system, including the sewage disposal
plant.37
Town sanitary districts are directed by statute to follow the
same charging rules that apply to cities, towns and villages.38
In metropolitan sewerage districts the commission is directed to
base charges on estimates of the annual expense of operation and
of keeping in repair such sewerage system and disposal plant.
Each city, town or village in the district is then charged on
- 323 -
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the basis of that proportion of the whole expense as the amount
of sewage it contributes bears to the total amount of sewage
disposed of. 3 9
2.3.2 Full Recovery Will Be Had From the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works
Reasonably Attributable to Treatment of Such In-
dustrial Wastes. [ §204 (b) (1) (B) ].
None of the management agencies examined have explicit statu-
tory authority to recover federally funded costs from industry.
However, this power is implicit in their charging authority (see
the preceding two sections) or could fall within their respective
"necessary and proper authorizations."1*0 In this context, it is
also quite likely that the terms of the federal grant would be
binding, in which case, the management agency would have a
statutory basis for so charging industrial users.41 In addition,
the management agencies are authorized to accept contributions
from, and enter into contracts with, commercial, industrial and
other establishments for the purpose of abatement of water pol-
lution.1*2 These broad powers are sufficient to authorize re-
covery from industry for its share of the federally funded costs.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F) ] .
All management agencies have the authority to finance sewage
treatment facilities via indebtedness.1*3 General limitations
related to public or municipal indebtedness are not applicable
to sewage treatment facilities financed with revenue bonds. "*4
Town sanitary districts may issue bonds, but the interest (when
due) and the principal (at maturity) must be secured by a direct
annual tax.1*5 The issuance is not automatically subject to
voter approval, but may become so if, within thirty days after
the issuance is publicly announced, there is filed a petition
requesting said submission, signed by electors numbering at
least 10 percent of the votes cast for governor in the district
at the last general election.1*6 There is a 20 year maturity
date limitation on such general obligation bonds.1*7
Metropolitan Sewerage Districts have a similar security mandate"*8
and a similar voter approval provision.1*9 Maturity is also
limited to 20 years.50
Metropolitan sewerage districts of the other variety51 have the
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5 5
same powers with the exception that voter approval is never
required.5 2
2.4.1 General Obligation Funding.
All agencies possess this authority53 and there are no express
limitations other than those noted above.
2.4.2 Special Funds and Revenue Funding.
All agencies possess this authority51* and there are no express
limitations other than those noted above.
2.4.3 Other Methods of Financing.
Cities may also issue mortgage bonds.
2.5 Authority to Assure in Implementation of its Waste Treatment
Management Plan that Each Participating Community Pay Its
Proportionate Share of Treatment Costs. [§208(c)(2)(G)].
Both types of metropolitan sewerage districts have this authority.56
Normally this provision would not be applicable to town sanitary
districts (since the usual situation is where a district is part
of one town) and there is no express provision in this respect.
However, the situation could exist57 and, if so, this require-
ment could probably be met via the districts general charging
powers. 5 8
When two or more adjoining communities jointly operate a sewer-
age system each must pay its proportionate share of treatment
costs.5 9
2.6 Authority to Refuse to Receive Any Wastes from Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§ 208 (c) (2) (H) ] .
Town sanitary districts lack this power unless it can be assumed
from their general rule making powers.60
Both types of metropolitan sew> rage districts have similar powers
in this regard. In each the governing commission is endowed
with broad rule making powers in regard to supervision and
operation of treatment plants but there is no -express authority
to "cut-off" service.61 In the absence of this express author-
ity it is unlikely that such authority exists since such action-
would create serious health hazards.
- 325 -
-------
Cities also have no apparent statutory authority to do this.
2.6.1 Authority to Deny New or Additional "Hook-ups"
(Moratorium Effect).
The DNR has this authority throughout the state. It must ap-
prove the plans of all treatment plants before they are carried
out and this includes the building of proposed systems as well
as changes in plant operations or plant extensions.62
Both types of metropolitan sewerage commissions have the express
statutory power to do this.63
This analysis is not applicable to town sanitary districts or
cities generally since each is an intra-municipality operation.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply with the
Areawide Plan.
Metropolitan sewerage commissions have a "rebuilding" power
whereby they may require any town, city or village in such
county, or any occupant of any premises outside of said city
of the first class, located in such county, which is discharging
sewage effluent into any river or canal within such county, to
rebuild such facilities so as to comply with such regulations
as the commission may establish. 6 "*
The DNR has the authority to levy fines in certain situations.65
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I) ] .
Town sanitary districts have this power66 and cities generally
have this power.67
Both types of metropolitan sewerage commissions are specifically
empowered to treat industrial wastes.68
3.0 SUMMARY
Wisconsin is, for the most part, capable of complying with the
requirements of the act. However, certain possible deficiencies
were noted previously, and they are discussed below.
3.1 Deficiencies
Under the requirements of .he act management agencies must be
- 326 -
-------
able to obtain full recovery from industrial users of the waste
treatment works of that proportion of the construction costs of
treatment works reasonably attributable to treatment of such
industrial wastes. Although there is no express authority to
do this, it could be reasonably implied from the agencies' broad
powers to enter into contracts with industrial establishments
for the purpose of water pollution abatement as noted in 2.3.2.
Therefore, this is not a serious deficiency.
There is no express statutory authority for most of the agencies
to refuse to receive wastes from any municipality or subdivision
thereof which does not comply with any provisions of an approved
plan. However, it should be noted that metropolitan districts
have broad powers over regulation of connections to the system.69
This authority would enable the districts to refuse to receive
wastes from non-complying municipalities.
4.0 BIBLIOGRAPHY
1. Beuscher, Current Trends in Wisconsin's Water Law, 40 Wis.
Bar Bull. 19 (April 1967).
2. Carmichael, Forty Years of Water Pollution Control in
Wisconsin; A Case Study, 1967 Wis. L. Rev. 350 (1967).
3. Haskill, E. H., Managing the Environment: Nine States Look
for New Answers, (1971) .
4. Holden, Matthew, Pollution Control as a Bargaining Process:
an essay on regulatory decision-making. Ithaca, New York,
Cornell University Water Resources Center, 1966. 53 p.
(Cornell University Water Resources Center. Publication
No. 9 ) .
5. Kerrigan, James E., Help Stamp Out Water Pollution Panic.
Wisconsin Alumnus 72(1):7-8, 29-30. October 1970.
6. Kusler, J. A., Water Quality Protection for Inland Lakes in
Wisconsin; a comprehensive approach to water pollution.
Wisconsin Law Review 1970:35.
7. Ranney, David C., An Analysis of Alternative Institutional
Patterns for Managing Water Quality on a Regional System
Basis. Madison, University of Wisconsin, Water Resources
Center, 1970. 238 p. (Institutional Design for Water
Quality Management: a Case Study of the Wisconsin River,
Volume IX, Section K).
- 327 -
-------
10
11.
12
13,
14,
15
1.
2,
3.
4.
5.
6.
7.
8.
9.
10.
11.
Voigt, L. P., Wisconsin Water Resource Problems.
Conservation Bulletin, January-February 1970.
Wisconsin
Wisconsin. Department of Natural Resources,
Natural Resources Laws, 1967-1968. Madison, n7d7
pagings.(Publication 702-68).
Wisconsin
Various
Wisconsin. Department of Natural Resources. Division of En-
vironmental Protection. Water Resource Management in
Wisconsin. Madison, 1968. 49 p.
Wisconsin.
20.870 . .
Laws, statutes, etc. An Act to Repeal 20.705 and
relating to the creation of a water resources
division in a reconstituted department of resource develop-
ment . . . Chapter 614, Laws of 1965, effective July 1, 1966.
Wisconsin. Laws, statutes, etc. Summary of Wisconsin Water
Resources Act, Chapter 614, Laws of 1965.(Madison, n.d.)
7 p.
Wisconsin. Natural Resources Council of State Agencies.
Quality Management for Wisconsin; a report on preserving
and improving the quality of the air, land and water re-
sources. Madison, Wisconsin, Natural Resources Council of
State Agencies, 1970. 97 p.
Wisconsin. University. Water Resources Center. Inter-
agency Water Resources Research and Data Collection Pro-
gram, 1968. 54 p.
Wood, D. F., Wisconsin's Requirements for Shoreland and
i^lood Plain Protection. Natural Resources Journal 10:327.
April 1970.
FOOTNOTES
Wis. Stat. Ann. §144.025.
Haskill, E. H., Managing the Environment;
for New Answers, 299-237(1971)."
Diagram.
Nine States Look
See
Id.
Id.
Id.
Id.
Id;.
Haskill,
Id. §144
Schematic
§144.025(4)
025(5) .
025(2) (a) .
025(2) (b) .
025(2) (c) ,
note 2 su
54.
§144
§144
§144
§144
234.
Id. §144.54(1)
- 328 -
-------
12. Haskill, note 2 supra, at 235.
13. Id. §62-18.
14. Id. §66.072.
15. Id. §144.07(4)(a).
16. Id. §60.30 e_t seq.
17. Id. §§59.96, 66.20 et seq.
18. Id. §66-076.
19. Id.. §66.20.
20. Id. §59.96.
21. Id_. §66.072(5).
22. See the text of "Description of Existing Agencies," supra
and the accompanying footnotes.
23. Id. §62.18.
24. Id.. §§ 144.07 (4) (a) .
25. Id.. § 144.07(4) (a) .
26. Id.. §60.301.
27. Id. §60.306.
28. Id.. §66.20.
29. Id. §§66.20(1), 66.23(Supp. 1973).
30. Id. §§ 66.24, 59.96 (6) .
31. Id_. § 66.076 (1) .
32. Id. § 144.025(2) (n).
33. Id. § 66.33.
34. Id.. § 60. 306 (5) .
35. Id. § 66.076(1) , (4) .
36. Id. §§66 .25, 59.96 (8).
37. Id. §§ 66.076 (5) .
38. Id. § 60.306 (5) .
39- Id.. §§ 66.25, 59.96 (8) .
40- Town sanitary districts, 60.306(2), 2 (m) ; cities, 62.11;
metropolitan sewerage districts, 66.24.
41. See e.g. , 66.076 (4) .
42. Id. §66733(3) , (4) .
43. Cities, §66.076(1); town sanitary districts, §60.307,
60.308(2), 67.12; metropolitan sewerage districts §66.22
59.96 (7) , 67.12.
44. Id_. § 67.01(1) , (8) (b) .
45. Id. § 60.307(4) .
46. Id_. § 60.307 (3) .
47. Id. § 60.307 (6) .
48. Id. § 66.25.
49. Id. § 66.25.
50. Id. § 66.25 .
51. i.e., the §59.96 type metropolitan sewerage district.
52. Id71 59.96(7) (a) , (c) .
53. Id.. § 66.54(1) (a) , 66.54(2) (d).
54. Id. § 66.076 (1) .
- 329 -
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55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
Id.
Id.
Id.
Id.
Id.
Id.
See
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
§66.076 (2) .
§§66 .25 , 59.96 (8) .
§60. 30 (1) .
§§ 60.306 (5) , 66 .076 (5)
§ 144.07 (4) (e) .
§ 60. 306 (2m) .
generally, §59.96(b)(i
§ 144.04.
§§66.24, 59.96 (6) (o) .
§§66.24, 59.96 (6) (c) .
§ 144.05 (1) .
§§60.30 (1) , 144.01(2) ,
§ 66.076 (5) .
§§66.24, 59.96 (6) (a) .
§ 66.24 (3) (Supp. 1972) .
(o)
66.076 (5)
- 330 -
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REGION VI
-------
ARKANSAS REPORT
(1971)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Arkansas' primary water pollution control agency is the Depart-
ment of Pollution Control and Ecology. Its functions in this
area include:
1. administration and enforcement of all laws and regulations
relating to the pollution of any waters of the state;
2. conduct of investigations and surveys on the extent, charac-
ter, and effect of the pollution of state waters;
3. establishment of pollution standards for state waters;
4. preparation of a comprehensive program for the elimination
or reduction of water pollution;
5. issuance of orders prohibiting or abating discharge of
wastes into state waters, requiring construction or alter-
ation of waste disposal facilities, setting water quality
standards, and classifying waters within the state;
6. approval of plans for waste disposal facilities;
7. issuance and revocation of discharge permits;
8. promulgation of rules and regulations effectuating its statu-
tory powers;
9. conduct of hearings and investigations, and entrance upon
public or private property as necessary to effectuate its
pollution control functions;
10. Functioning as the state water pollution control agency
for purposes of the Federal Water Pollution Control Act,
acceptance of federal grants, and administration of a state
grant program financed by revenue bonds issued by the De-
partment. *
A coordinate agency with respect to water pollution control is
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the Arkansas Game and Fish Commission. The Commission is also
empowered to control disposal of wastes into the waters of the
state and to abate existing pollution.2
1.2 Schematic Diagram of Existing Agencies
DEPARTMENT OF POLLUTION CONTROL AND ECOLOGY
GOVERNOR OF ARKANSAS
Commission
Department of Pollution
Control and Ecology
Administration
and Planning
Special
Services
Division of
Water Pollution
Control
Division of
Air Pollution
Control
Division of
Solid Wastes
Control
Division of
Environmental
Preservation
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208 (c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
This analysis covers cities, towns, municipal improvement dis-
tricts, and suburban improvement districts, which constitute all
of Arkansas' waste water treatment agencies. The capacity of
each agency is considered with respect to each of the grant elig-
ibility requirements discussed below.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c) (2)(C)].
Arkansas' waste water treatment agencies are authorized to con-
struct, (directly or by contract), operate and maintain waste
treatment facilities.3
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2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
Arkansas' waste water treatment agencies are at least implic-
itly authorized to accept and use federal grants.1* Additionally,
suburban improvement districts are specifically authorized to
act in cooperation with the federal government in financing
facilities which the districts themselves are authorized to
construct.5
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [§208 (c) (2) (E)] .
Arkansas' cities and towns are expressly authorized to collect
user charges for waste water treatment services.6 Municipal
improvement districts may be implicitly so authorized through
a provision authorizing them to apply profits derived from
operation of a sewer system to the municipal debt.7 Suburban
improvement districts are authorized to fund operation and main-
tenance costs through tax levies proportioned to the benefit
assessed against properties within the district. With respect
to municipal improvement districts and suburban improvement
districts, neither is expressly authorized to comply with the
charge requirements of the Act.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b)(1)(A)].
In addition to a general authority to assess and collect charges
for waste water treatment services, Arkansas cities and towns
are authorized to perform such acts as are necessary and ex-
pedient for the successful operation of their treatment works.8
These two grants of authority are sufficient to allow them to
base their user charges on the character, volume, and rate of
flow of effluent treated. Therefore, they have authority to
structure their charge schedules to assure that each category
of user, residential, commercial, and industrial, will pay its
appropriate share of the costs of operation and maintenance of
waste water treatment facilities. Municipal improvement dis-
tricts and suburban improvement districts do not comply with
this provision as they lack adequate authority to charge for
waste water treatment services.
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2.3.2 Full Recovery Will Be Had From the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works Reason-
ably Attributable to Treatment of Such Industrial
Wastes. [§204 (b) (1) (B)] .
There is no specific legislative authorization for this type
of costs recovery by any of Arkansas' waste water treatment
agencies. Due to the agencies' inadequate grant acceptance
and user charge authorities, they have no clearly implied power
which would comply with this requirement of the Act.
2.4 Authority to Incur Short- and Long-Term Indebtedness.
[§208(c) (2) (F)].
Arkansas' cities and towns are authorized to issue revenue bonds,
but not general obligation bonds, to fund construction of waste
water treatment facilities.9 They lack specific authorization
to issue short term obligations. There is no minimum maturity
specified for the revenue bonds which they are authorized to
issue; such bonds could in theory be issued as short term obli-
gations. Also, their authority to enter into contracts10 gives
them a limited capability to incur short term indebtedness.
Suburban improvement districts and municipal improvement dis-
tricts are authorized to issue general obligation but not revenue
bonds,11 except as noted in section 2.4.3. As with cities and
towns, the districts have power to incur short term, indebtedness
implicit in the absence of minimum maturity limits and through
their authority to enter into contracts.12
2.4.1 General Obligation Funding.
A? indicated above, Arkansas' towns and cities are not authorized
to issue general obligation bonds for waste water treatment pur-
poses. Both municipal and suburban improvement districts may do
so as they are not "municipalities" within the meaning of the
state constitutional prohibition against issuance of interest
bearing evidences of debt by municipalities or counties.13
Neither district is subject to a limitation on such indebtedness
or is required to seek electoral approval of bond issues.
2.4.2 Special Funds and Revenue Funding.
As indicated above, neither municipal nor suburban improvement
districts are authorized to issue revenue bonds, except as noted
in section 2.4.3. Cities and towns, however, may do so.14 Wo
electoral approval is required, only an ordinance passed by the
municipal council.1 5
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2.4.3 Other Methods of Financing.
Though municipal improvement districts are not authorized to
issue revenue bonds, they may pledge revenues from facility
operation to bond retirement. The bonds, however, remain
general obligations of the district.
Where municipal and suburban improvement districts have con-
tracted to operate a waste water treatment facility jointly,
the joint district is authorized to issue revenue bonds.17
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c) (2) (G)] .
Cities and towns may contract to provide waste water treatment
services for other cities, towns, or other political subdivi-
sions of the state.18 The provision for payment included in
the contract would be acceptable for grant purposes as the pro-
portionate share of treatment costs of the service receiving
community. Cities, towns, and municipal improvement districts
may extend their waste treatment services to areas lying out-
side their boundaries.19 The payment received for such services
would be acceptable for grant purposes as representing the pro-
portionate share of treatment costs attributable to the service
recipient.
Suburban improvement districts may contract to provide waste
water treatment services for nearby (within ten miles) munic-
ipalities and may connect their sewers to those of any adjacent
municipality or district.20 Suburban and municipal inprovement
districts which are debt free and contiguous may by contract
operate their treatment facilities jointly.21 Municipal improve-
ment districts may join with any other political subdivision,
or state or federal agency in the construction, acquisition,
operation and financing of waste water treatment facilities.22
In any joint or cooperative venture, the contractual apportion-
ment of treatment costs will be acceptable for grant purposes
as representing the proportionate share of treatment costs
attributable to each service recipient. Therefore, in such
cases the treatment agency will have authority to assure that
each participating community will pay its proportionate share
of treatment costs.
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2.6 Authority to Refuse to Receive Any Wastes from Any Munic-
ipality or Subdivision Thereof, Which Does Not Comply
with Any Provisions of an Approved Plan Under §202 Ap-
plicable to Such Area. [§208(c)(2)(H)].
None of Arkansas' waste water treatment agencies have specific
authority to "cut off" service to municipalities or subdivi-
sions being served by their facilities; further, it is unlikely
that such an action would be judicially regarded as being within
the scope of their necessary and proper powers. The authority,
noted in section 1.1 above, of the Department of Pollution
Control and Ecology to regulate waste discharges through the
use of discharge permits is very near the power to refuse to
receive wastes. This required power is, therefore, impliedly
possessed by a state regulatory agency rather than a local manage-
ment agency. In this manner the state complies with this grant
requirement.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
Arkansas' waste water treatment agencies are not required to
connect their treatment facilities to communities or subdivisions
outside their boundaries. With respect to such communities or
subdivisions they can deny new "hook-ups." The power of the
agencies to refuse to connect communities or subdivisions within
their boundaries is much more limited. Further, as the non-
compliance involved in such cases will often be attributable
to the agency itself, denying new "hook-ups" would be meaning-
less as a sanction.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply with the
Areawide Plan.
No sanctions exist which would be applicable to municipalities
or subdivisions as the charge system and penalties for violation
of ordinances are designed to operate against individuals.
Additionally, where the violator is an unincorporated subdivision
or community there is no single individual against which sanc-
tions could be applied.
2.7 Authority to Accept for Treatment Industrial Wastes. [§208
(c) (2) (I)] .
The authority of Arkansas' agencies to provide waste treatment
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services, discussed in section 2.1 above, is sufficient to
permit them to treat industrial wastes. Requiring pretreat-
ment of industrial wastes is within the agencies' powers to
the extent that pretreatment is necessary to protect the proper
operation of their facilities. Absent such pretreatment, the
agencies would necessarily be empowered to refuse industrial
wastes in order to execute their waste water treatment function.
3.0 SUMMARY
In a number of areas Arkansas' waste water treatment agencies
fail to comply with the specific grant requirements of the Act.
Legislation is necessary in such areas in order to bring about
compliance.
3.1 Deficiencies
1. Legislation will be required to authorize both municipal
and suburban improvement districts to charge for waste
water treatment services in a fashion complying with the
grant requirements of the Act.
2. Legislation will be required to authorize each of the classes
of treatment agency analyzed to recover from industrial
users of their waste treatment works the federal portion
of the construction costs of such works reasonably attribut-
able to treatment of industrial wastes.
3. Legislation will be necessary to provide sanctions applic-
able to communities which do not comply with an areawide-
plan unless the Department of Pollution Control and Ecology
exercises this authority.
4. Specific legislative authority should be provided allowing
the agencies to require pretreatment, monitoring, and re-
porting by industrial dischargers.
4.0 BIBLIOGRAPHY
1. Municipal Improvement Bonds in Arkansas, 8 Ark. L. R.
146 (1954) .
2. Pollution Control and Ecology in Arkansas (Undated, Depart-
ment of Pollution Control and Ecology).
3. Arkansas Water Quality Standards (April 1972, Department
of Pollution Control and Ecology).
- 339 -
-------
4. Sparks, Jared, Arkansas Water Resources: Supply, Use, and
Research Needs, Univ. of Arkansas, (1967).
FOOTNOTES
1. A.S.A. §§82-1901 through 82-1909, Act 108 of 1971 (Supp.
1971).
2. A.S.A. §§47-801, 47-811 through 47-813 (1964).
3. Cities and towns, A.S.A. §§19-4101, 19-4103; municipal im-
provement districts, A.S.A. §§20-311, 20-209 (Authority
to operate is implicit in this section as it may apply
revenues derived from operation of facilities to debt re-
tirement. Further, there is no provision reversion of
such facilities to municipality after retirement of con-
struction debt.); suburban improvement districts, A.S.A.
§§20-704(b), 20-718, 20-704.1(a).
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
A.S.A. §§82-1914 to 82-1914.2.
A.S.A. §20-704. l(b) (Supp. 1971).
A.S.A. §19-4113.
A.S.A. §20-209 (1968) .
A.S.A. §19-4103.
A.S.A. §§19-4107, 19-4101.
A.S.A. §19-4103.
Suburban improvement districts, A.S.A. §20-716; municipal
improvement districts, A.S.A. §20-201.
A.S.A. §§20-704. l(a) , 20-311.
Const. Art. 16 §1. Fitzgerald v. Walker (1891) 55 Ark.
148, 175 S.W. 702.
A.S.A. §19-4101.
A.S.A. §19-4104.
A.S.A. §20-209 et seg.
A.S.A. §20-732.
A.S.A. §§19-4116, 14-901 through
Cities and towns, A.S.A. §19-4263
districts, A.S.A. §20-332.
A.S.A. §20-704 ( j) .
A.S.A. §20-732.
A.S.A. §20-704.1 (b) .
14-908.
, municipal improvement
- 340 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
LOUISIANA REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
The state agency in charge of water pollution control in
Louisiana is the Stream Cortrol Commission (Commission).1
The Commission is headed by a chairman who is also the Com-
missioner of Wild Life and Fisheries. Other members of the
Commission are the Director of Public Works, President of
the State Board of Health, Commissioner of Agriculture and
Immigration, Commissioner of Conservation, Executive Direc-
tor of the Department of Cormerce and Industry and the Attor-
ney General.2
The State Board of Health also exercises some authority over
water pollution control as it is the body with official juris-
diction over all waste disposal.3 However, the Commission
actually handles water pollution abatement.
Control over disposal of wastes by any person, corporation or
municipality is held by the Commission. As the watchdog of
the state's waters, the Commission has authority to make any
rules and regulations it deems necessary,5including the es-
tablishment of standards of water quality.6 In addition, the
Commission has enforcement authority7 and may regulate, con-
trol or restrain the discharge of any waste material or pol-
luting substance into state waters.8
A statutory prohibition on pollution makes it unlawful to
discharge or permit to be discharged any wastes or pollution
which destroy fish or injure the public health and welfare
in violation of a Commission rule, order or regulation.9 The
Commission notifies violators and such violators must file a
report within ten days.10 Thereafter the Commission may make
a final order to control the pollution source as it deems
necessary.11 If the violation continues after notification
by the Commission, or if the alleged violator fails to make
a report the attorney general may institute criminal proceed-
ings.12 Penalties up to $2000 per day, one year imprisonment,
or both are provided.13 Furthermore, the Commission is authorized
- 341 -
-------
to bring civil damages suit against polluters for the amount
necessary to restore the waters to their former condition.
In 1970 the legislature enacted some new legislation regard-
ing water pollution.15 Included was a prohibition on dis-
charging untreated wastes into public waters by any person,
corporation, municipality or political subdivision.1 The
statute further provides that all wastes must receive the
best practicable secondary treatment or its equivalent by
December 31, 1972.17 Violation of this law can result in
a penalty of $10,000 for each day of violation.18
New legislation also provides for state grants to local agen-
cies to assist them in construction of water pollution control
projects.19
The actual construction and operation of sewage disposal and
treatment works is done on the local level by sewage districts.
These districts may be located outside municipalities,20 in-
side municipalities,21 and in municipalities of less than
1000 population.22 The city of New Orleans is 'a separate
district with authority for a sewage system.23 Several sew-
age districts may be joined together in a consolidated dis-
trict which may include areas within municipalities and in
neighboring parishes.24
1.2 Schematic Diagram of Existing Agencies
Governor
Stream Control Commission > State Board of Health
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT AGENCIES,
INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH RELATE
TO CERTAIN PROVISIONS OF §208 (c) (2) AND SELECTED RELATED
SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c) (2) (C)] .
All sewerage districts in Louisiana, whether inside or outside
- 342 -
-------
a municipality, have the necessary authority to operate, main-
tain and construct sewage disposal works.25 The district of
the city of New Orleans has similar authority.26
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c)(2)(D)].
None of the local districts has express statutory authority to
accept and utilize grants from any sources. However, this power
can reasonably be implied from the broad powers the agencies
have to enact all rules and regulations and do all things neces-
sary or advantageous for the operation and use of the sewage
systems.2 7
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [§208(c)(2)(E)].
The authority to levy front-footage assessments on owners or
property is held by the local sewerage districts.28 In addi-
tion, those districts which are outside municipalities, those
inside larger municipalities and consolidated districts may
collect rates and charges for their services.29 Those dis-
tricts established in municipalities with a population less
than 1000 lack the express authority to collect rates and
charges. The sewerage system of the city of New Orleans is
free to users, being financed by a special tax levy.30
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)].
Although none of the local agencies has the express statutory
authority required, it can reasonably be implied from other
powers. For example, consolidated sewerage districts may
base their rates on the number of water outlets on the user's
property, along with the proportionate costs of operating,
constructing and maintaining the sewage systems. Therefore,
rates based on the characteristics of the user's effluent should
be permissable in these districts.
Districts in municipalities as well as those outside such munic-
ipalities may charge rates sufficient to pay the expenses of
operation, repair and maintenance of the system.32 From this
it could be implied that rates bas^d on the nature of the
user's effluent would not be barred.
- 343 -
-------
Municipal districts of less than 1000 population lack the
necessary powers, as does the Water and Sewerage Board of
New Orleans.
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Fed-
eral Portion of the Construction Costs of Treat-
ment Works Reasonably Attributable to Treatment
of Such Industrial Wastes. [§204 (b) (1) (B)] .
There is no express statutory authority for any of the treat-
ment agencies to recover cr.pital construction costs from indus-
trial users. In both rural and municipal districts, however,
the rates and charges may Le computed so as to pay the prin-
cipal and interest on revenue bonds.33 Since these districts
are able to determine rates sufficient to meet contractual
obligations, the obligation to meet the terms of the EPA grant
by recovering construction costs may reasonably be implied.
Consolidated districts have only a general charging authority,
although rates must be sufficient to recover the proportionate
costs of construction from all users. 3 **
The city of New Orleans, as well as small municipalities (under
1000 population) lack the necessary charging authority to re-
cover capital costs.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)] .
The authority for short-term indebtedness may be implied from
the ability of the districts to enter into contracts for con-
struction. There is express authority for long-term indebted-
ness as described in the following paragraphs.
2.4.1 General Obligation Funding.
All sewerage districts have express constitutional authority
to issue general obligation bonds.35 Such bonds must be ap-
proved by a majority vote of the electors of the district and
are financed by means of special tax.36
2.4.2 Special Funds and Revenue Funding
Revenue bonds may be issued to finance the construction or
improvement of the treatment works in all sewerage districts.37
Such b -ids do not come under the statutory limitation of in-
debtedness. 3 8 The bonds must mature within 40 years and bear
interest at no more than 8%. 39
- 344 -
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2.4.3 Other Methods of Financing
Bonds financed by the special assessment of real estate may
be issued by all sewerage districts.40 These bonds must bear
interest not exceeding 6% and mature within 20 years.41
State grants are also available to aid local construction of
water pollution control projects.42
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c) (2) (G)] .
Although none of the sewerage districts is expressly empowered
to charge participating communities proportionately, this au-
thority might be implied from other powers. For example, munic-
ipalities have authority to consolidate and enlarge sewerage
districts for the purpose of operating a sewerage system.43
Similarly, parishes may create consolidated sewerage districts
comprised of existing districts as well as territory not within
an existing district.44 When several districts or areas join
together for common treatment of their wastewater, it would
seem reasonable that they could agree to apportion the costs
among the participants.
2.6 Authority to Refuse to Receive Any Wastes From Any Munic-
ipality or Subdivision Thereof, Which Does Not Comply
With Any Provisions of an Approved Plan Under §202 Applic-
able to Such Area. [ §208 (c) (2) (H) ] .
The sewerage districts all lack the authority to cut-off non-
complying municipalities. However, the State Stream Control
Commission could have this authority through its ability to
control and restrain the discharge of any wastes or pollutants.45
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
The power to prohibit new connections to the system is not
expressly granted to any local districts. Sewerage districts
may compel connection to the system, but there is no express
statutory authority to prohibit such connections.46
If the noncompliance is a violation of the general statutory
prohibition on pollution, the Stream Control Commission might
possibly exercise authority to deny additional connections.47
- 345 -
-------
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
None of the sewerage districts possess the ability to assess
penalties or other sanctions against municipalities.
The Stream Control Commission has the power to enforce pollu-
tion control regulations with penalties as described in para-
graph 1.1.
2.7 Authority to Accept fcr Treatment Industrial Wastes.
[§208(c) (2) (I)] .
All local districts lack the express statutory authority to
accept industrial wastes. Since the Stream Control Commission
has the power to control the disposal of wastes by industries,
it can reasonably be implied that the local treatment agencies
can accept such industrial wastes.4 8
The New Orleans Sewerage and Water Board has the statutory
ability to compel pretreatment of industrial wastes by its au-
thority to make "rules and regulations to prevent the obstruc-
tion, interference with or damage to, the public systems of
drainage, sewerage and water supply."49 The power for the other
local districts to require preliminary treatment might be im-
plied from their general authority over sewage matters and
their power to "maintain" their systems.
4
3.0 SUMMARY
Louisiana is capable of meeting most of the requirements of
the Act. The local treatment agencies either possess express
statutory authority to meet the provisions,, or else the neces-
sary powers can reasonably be implied from other powers. Only
a few deficient areas exist, and these are described in para-
graph 3.1.
The state-wide agency, the Stream Control Commission, does not
have such specific powers over functions such as planning, regu-
lation and grant management as compared with most states. How-
ever, its gi nerally broad authority to make rules and regulations
as it deems lecessary should be sufficient. The Commission
also has very strong enforcement authority.
- 346 -
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3.1 Deficiencies
The greatest deficiency in Louisiana is the lack of any au-
thority to refuse to receive wastes from noncomplying munic-
ipalities. No authority exists at the local level to either
cut-off service, deny new connections or assess penalties
or other sanctions to such recalcitrant municipalities. New
legislation granting the necessary authority would be helpful.
A less serious deficiency is the many areas in which authority
is merely implied rather than expressly granted. Among these
are the authority to accept grants, to charge rates based on
the composition of the effluent, to recover capital construc-
tion costs, to apportion costs among communities and to receive
industrial wastes. These implied powers would be more certain
if expressly delegated by new legislation.
4.0 BIBLIOGRAPHY
1. Water Pollution in Louisiana:
Loyola L. Rev- 734 (1972).
An Attempt at Control, 18
FOOTNOTES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
La.
Id.
La.
La.
La.
La .
La .
La.
La.
La .
Id.
La.
La.
La.
La.
La.
Id.
La.
La .
La.
La.
La.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev-
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Ann .
Ann.
Ann .
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann .
Ann.
Ann.
Ann.
Ann .
Ann.
Ann.
Ann .
Ann.
Ann.
§56
§40
§56
§56
§56
§56
§56
§56
§56
§56
§56
§56
§56
§56
§56
§40
§33
§33
§33
:1431
(Supp.
1972) .
:11 (Supp. 1972) .
:1434
:1435
:1439
:1437
:1439
:1440
:1441
:1443
:1444
:1446
:1461
:1464
:1464
:2321
:3881
:3911
:3951
(1952) .
(1952) .
(1952) .
(1952) .
(1952) .
(Supp.
(1952) .
(1952) .
(Supp.
(Supp.
et seq.
. 1 (Supp
.2 (Supp
et seq.
(1966) .
(1966) .
(1966) .
1972) .
1972) .
1972) .
(Supp.
. 1972)
. 1972)
(Supp.
1972)
1972)
- 347 -
-------
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
La. Rev. Stat. Ann. §33:4071 (1966) .
La. Rev. Stat. Ann. §33:4051 (1966).
La. Rev. Stat. Ann. §§33:3885, 33:3912,
(1966). See also §33:3981 (1966).
La. Rev. Stat. Ann. §33:4071 (1966).
La. Rev. Stat. Ann. §§33:3933, 33:3962,
(1966) .
La. Rev- Stat. Ann. §§33:3981, 33:3914,
(1966) .
La. Rev- Stat. Ann. §§33:3885, 33:4002,
(1966) .
33:3951
33:3885
33:3953
33:3962
See New Orleans Taxpayers' Protective Ass'n. v.
and Water Board of New Orleans, 132 La.
(1913) .
La. Rev. Stat. Ann. §33:3970 (1966).
La. Rev. Stat. Ann. §§33:3885, 33:4002 (
Id.
La. Rev. Stat. Ann. §33:3970.
Const, of La., Art. 14, §14 (a), (c) .
Id.
See La. Rev. Stat. Ann. §33:4251 et seq.
839, 61
1966) .
which ;
, 33:3962
, 33:3912
, 33:3962
, 33:3970
Sewerage
So. 843
authorizes
all districts empowered by Art. 14, §14 of the
to issue general obligation bonds the power to
revenue bonds.
1972).
Constitution
also issue
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
La.
Id.
La.
Id.
La.
T -.
J-JO. .
La.
La.
La.
La.
La .
Rev.
Rev.
Rev.
Rev-
Rev-
Rev.
Rev.
Rev.
Rev.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
§33
§33
§40
§33
§33
§56
§33
§56
§56
:4252
:3987
:2321
:3961
:4051
:1439
:4041
:1439
:1434
(Supp.
(1966)
et seq
(1966)
(1966)
(1952)
(1966)
(1952)
allows
(Supp. 1972)
the Commission to control
49
disposal of wastes by any person, and §56:1433 defines "per-
son" so as to include industries.
La. Rev. Stat. Ann. §33:4081 (1966) .
- 348 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
NEW fOICO REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Responsibility for adopting and regulating a water quality
control program in New Mexico lies with that state's Water
Quality Control Commission.1 The Commission is composed
of the director of the Environmental Improvement Agency,
the secretary of the Oil Conservation Commission, the state
engineer, the director of the state Parks and Recreation
Commission, the director of the state Department of Agri-
culture, and a representative of the public appointed by
the governor.2 Working through the agencies represented,3
the Commission is required to adopt water quality standards4
and to adopt regulations for the prevention or abatement of
water pollution.5
In order to carry out its responsibilities, the Commission
may require the filing, with it or a member agency, of plans
for the construction and operation of new sewer systems,
treatment works, or sewage systems or for extension or
modification of existing works and systems.6 The Commission
may also adopt regulations requiring notice to it or a member
agency of intent to introduce or to permit the introduction
of contaminants into the waters of the state.7
Adherence to the regulations established by the Commission
is to be obtained if possible through voluntary cooperation
by alleged or potential violators.8 If this proves insuf-
ficient, enforcement is effected by civil suit.9 If after
investigation a constituent agency can show good cause to
believe that a person is violating or threatens to violate
a regulation, the Commission may initiate proceedings in
county district court.10 Remedies available to the Commission
are injunctive relief11 and civil penalties not exceeding
one thousand dollars for each violation.12
At the local level waste treatment facilities may be operated
by municipalities,13 sanitation districts14 and associations15
formed under the Sanitary Projects Act16 [hereinafter referred
to as associations]. Municipalities are defined as any
incorporated city, town, or village, incorporated county
- 349 -
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and class H counties.17 Sanitation districts may include
parts or all of one or more counties.18 An association
may be formed by a rural unincorporated community19 that
has been in existence longer than twenty five years20 or
by a combination of such communities.21
- 350 -
-------
U)
cn
Environmental
Improvement Agency
Oil Conservation Commission
State Engineer
Parks and Recreation
Commission
Department of Agriculture
_L
Water Quality
Control Commission
Municipalities
Sewer Districts
Associations
Department of
Public Health
Department of
Finances and
Adminis tration
Associations
Waste Treatment
Management Agencies
t
to
en
a
tr
CD
3
(a
rl-
p-
a
O
i-h
W
X
H-
cn
rt
H-
fD
3
O
H-
(D
CO
-------
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND
SELECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and
Existing Works as Recmired by Any Areawide Plan. [§208
(c) (2) (C)] .
Municipalities and sanitation districts have clear statutory
authority to design and construct new works and to operate
new and existing waste treatment facilities.22
Associations formed to provide sewerage treatment services
must receive approval of the state department of finance
and administration for the construction of the original
works.23 Once the works are completed the association has
authority to operate these works.24 Associations operating
existing works have implicit authority to design and construct
new works.2 5
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
All three types of management agencies have clear statutory
authority to accept grants from the Federal government.26
Each also has implicit authority to receive grants or other
funds from sources other than the Federal government.27
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§ 208(c) (2) (E) ] .
Municipalities and Sanitation Districts have express authority
to establish rates and charges for their services.28 If
either of these management agencies utilize revenue bond
financing [see 2.4.2] such rates and charges are mandatory.29
An Association is reauired to assess users of their facilities
on a monthly basis in order to provide an amount sufficient
to insure proper operation and maintenance of the facility.30
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A) ] .
Municipalities may levy "a just and reasonable service charge,
- 352 -
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upon a front-foot, volume of sewage, number of outlets or
other equitable basis."31 This provision should be suffi-
cient authority to charge categories of users their propor-
tionate share.
Sanitation districts have no express authority to charge
categories of users based on characteristics of effluents.
Rates established by the district must be approved by the
New Mexico Public Service Commission.32 Sanitation dis-
tricts do not fall within the definition of public utility;33
however, since the district's rates must be approved by the
Public Service Commission it is reasonable to assume that
these rates must follow the statutory guidelines34 for
public utility rates that are regulated by the Public Ser-
vice Commission.35 These guidelines provide that rates
are to be just and reasonable36 and that rate schedules may
be established by reasonable classification of users.37
From these provisions it can be implied that sanitation
districts do have authority to charge on the basis of
characteristics of effluent.
Associations have neither express nor implied authority to
charge on the basis of the characteristics of effluents.
Their authority is limited to making monthly assessments
against users. 8
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [ § 204 (b) (1) (B)] .
None of the local management agencies have express statu-
tory authority to comply with this requirement. A munici-
pality has implicit authority to recover these costs from
industry since it may levy charges for the construction
of works,39 if the charges are levied on an equitable basis.40
As noted in §2.3.1 supra sanitation districts in determining
their rates are to be guided by the statutory provisions
applicable to public utility rates. These provisions allow
rate schedules to be set for different categories of users ,
as long as these classifications are reasonable.41 Hence
it can be reasonably implied that districts have authority
to comply with this requirement.
- 353 -
-------
Associations do not have any express or implicit authority
to recover these costs from industry.
2.4 Authority to Incur Short-and Long-Term Indebtedness
[§208(c) (2) (F)] .
Municipalities and sanitation districts have authority to
incur indebtedness.42 Associations, however, are limited
in this regard as they are allowed only to incur indebted-
ness through revenue bond funding.43
Constitutional limitations on the amount of debt incurred
by municipalities and other political subdivisions do not
apply to indebtedness for the construction of sewer facili-
ties.44
2.4.1 General Obligation Funding.
Municipalities and sanitation districts may issue general
obligation bonds,45 subject to the approval of the respective
electorates.46 Associations are denied authority to utilize
this method of financing.47
2.4.2 Special Funds and Revenue Funding.
All three local management agencies have authority to issue
revenue bonds.48 If municipalities and sanitation districts
issue revenue bonds, they must establish rates sufficient
to pay operating expenses, to pay interest on the revenue
bonds, and to provide an adequate sinking fund.49 These
rates must remain in effect until the bond issue is liqui-
dated.50
Associations have restricted authority to issue revenue bonds
Both the department of public health and the department of
finance and administration must approve the issuance,51 such
approval to be based on proper showing by the association
that the indebtedness is necessary for expansion or improve-
ment and that the financial condition and future income of
the association warrants approval.52
2.4.3 Other Methods of Financing.
All three types of local management agencies may be eligi-
ble to share in the proceeds of severance tax bonds53
issued by the state to assist in the construction of sewage'
treatment facilities.54
- 354 -
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2.5 Authority to Assure in Implementation of Its Waste
Treatment Management Plan That Each Participating
Community Pay Its Proportionate Share of Treatment
Costs. [§208(c) (2) (G) ] .
There is no specific statutory provision granting this author-
ity to any of the local management agencies.
Such authority for municipalities can reasonably be implied
from the provision granting authority to charge users for
services.55
Sanitation districts have implicit authority to fulfill this
requirement since unreasonable differences as to rates
between localities are prohibited.56
2.6 Authority to Refuse to Receive Any Wastes From Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§ 208 (c) (2) (H) ] .
There is no express statutory provision granting to any of
the local agencies the authority to cut off services to
municipalities. The only provisions from which this authority
might be implied are those granting authority to adopt
rules and regulations for the administration of the respec-
tive agencies.57
2.6.1 Authority to Deny New or Additional "Hook-ups"
(Moratorium Effect).
None of the three types of local agencies have this authority,
but as noted in paragraph 1.1 the state Commission has
broad enforcement powers.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply with
the Areawide Plan.
There is no statutor provision granting this authority to
waste treatment management agencies, but as noted in para-
graph 1.1 the state Commission has power to seek injunctions
and damages in court actions.
- 355 -
-------
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
There is no statutory authority either granting or denying
management agencies authority to treat industrial wastes.
Statutory provisions regarding all three types of agencies
grant authority to treat sewage58 but the provisions do not
define this word. It might be reasonably implied that this
item includes industrial wastes. Likewise, even though
there is no statutory provision granting such authority,
it is implicit that treatment agencies can refuse to treat
industrial wastes.
3.0 SUMMARY
With the exception of one subject area, municipalities and
sanitation districts seem to have sufficient statutory
authority to comply with the requirements for construction
grants. This one area, as noted in the following section,
is the authority to refuse wastes from noncomplying com-
munities .
Associations, however, lack statutory authority to comply
with several requirements. These are noted in the following
section.
3.1 Deficiencies
All three types of local waste treatment management agencies
lack authority to refuse to treat wastes of communities not
in compliance with any provision of an areawide plan. [See
§§2.6, 2.b.l, 2.6.2.] Legislation granting this authority
is needed.
Associations lack authority (1) to charge categories of users
based on characteristics of effluents [See §2.3.1] and (2)
to assure that each participating community pay its propor-
tionate share of treatment costs [see §2.5]. Legislation
granting such authority is needed.
Finally, for the sake of clarity, legislation should be
passed granting all three types of agencies the authority
to recover costs from industries [see §2.3.2] and (2) to
accept/refuse industrial wastes for treatment [see §2.7].
4.0 BIBLIOGRAPHY
1. Control of Industrial Water Pollution in New Mexico,
9 Natural Resources J. 653. (1969) .
- 356 -
-------
FOOTNOTES
1.
2.
3.
4.
5.
6.
7.
8.
9-
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
N.M. Stat.
N.M. Stat.
N.M. Stat.
N.M. Stat.
N.M. Stat.
N.M. Stat.
N.M. Stat.
N.M. Stat.
Id.
Id.
Id.
N.M. Stat.
N.M. Stat.
N.M. Stat.
tricts may
N.M. Stat.
N.M. Stat.
N.M. Stat.
N.M. Stat.
N.M. Stat.
N.M. Stat.
N..M. Stat.
N.M. Stat.
ities) ; § §
Districts)
N.M. Stat.
N.M. Stat.
N.M. Stat.
N.M. Stat.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann .
§
§
§
§
§
§
§
§
§
§
§
75-39-4, (1968) .
75-39-3, (Supp. 1971) .
75-39-4(E) , (Supp. 1971) .
75-39-4(C) , (1968) .
75-39-4(0) , (1968) .
75-39-4 (H) , (Supp. 1971) .
75-39-4(1) , (Supp. 1971) .
75-39-9 (A), (Supp. 1971).
75-39-59 (B), (Supp. 1971).
14-25-KA), (Supp. 1971).
75-18-2 (B), (1968). Sanitation dis-
be operated jointly with water districts.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
§
§
§
§
§
§
§
§
75-18-2
Ann.
Ann.
Ann.
Ann.
§75-18-14(0) , (
§
§
§
§
19
14-28-12 (A), (Supp. 1971).
14-28-1 to 14-28-19, (1968).
14-1-2 (G & H) (Supp. 1971) .
75-18-3, (1968).
14-28-2 (A) , (1968) .
14-28-5 (B) , (1968) .
14-28-2 (A), (Supp. 1971).
14-25-KA), (Supp. 1971), (Municipal-
8, 75-18-14 (H), (1968) (Sanitation
14-28-4, (Supp. 1971) .
14-28-12(A), (Supp. 1971).
14-28-15 (B) , (1968) .
14-36-6, (1968), Municipalities,
68), Sanitation Districts , §14-28-7(B),
(1968), Associations.
27.
N.M. Stat.
§75-18-14
Ann.
(D &
§
N)
14-17-1, (1968), Municipalities;
, (1968) Sanitation Districts; §14-28-15
(a), (1968), Associations.
9 8
Z 0 .
N.M. Stat.
Ann.
§
Municipalities, §
29.
30.
31.
32.
33.
34.
35.
N.M. Stat.
cipalities
N.M. Stat.
N.M. Stat.
N.M. Stat.
N.M. Stat.
N.M. Stat.
N.M. Stat.
Ann.
§
, §75-1
Ann.
Ann.
Ann.
Ann.
Ann.
i in.
§
§
§
§
§
§
§14-25-2, (1968), 14-17-1(H) (Supp. 1971)
75-18-14 (L), (1968) Sanitation Districts .
14-30-6, (Interim Supp. 1972) Muni-
8-37, (1968) Sanitation Districts .
14-28-12 (C) , (1968) .
14-25-2 (A) , (1968) .
75-18-14(L) , (1968) .
68-3-2 , (Supp. 1971) .
§68-6-1 to 68-6-8, (1961).
68-5-4, (1961) .
- 357 -
-------
36. N.M. Stat. Ann. §68-6-1, (1961).
37. N.M. Stat. Ann. §68-6-4, (1961).
38. N.M. Stat. Ann. §14-28-12(C), (1968).
39. N.M. Stat. Ann. §14-25-2(A), (1968).
40. Id.
41. N.M. Stat. Ann. §68-6-4, (1961).
42. N.M. Const. Art. IX, §12, Municipalities; N.M. Stat.
Ann. §75018-14(e), (1968) Sanitation Districts.
43. N.M. Stat. Ann. § 14-28-15(B), (1968).
44. N.M. Const. Art. IX, §13.
45. N.M. Stat. Ann. §14-29-5(R), (1968), Municipalities;
§75-18-24, (1968), Sanitation Districts.
46. N.M. Stat. Ann. §14-29-6, (1968) Municipalities,
§75-18-24, (1968), Sanitation Districts.
47. N.M. Stat. Ann. § 14-28-15(B) , (1968).
48. N.M. Stat. Ann. §14-30-1.1, (Supp. 1971), Municipalities;
§75-18-33 (1968), Sanitation Districts.
49. N.M. Stat. Ann. §14-29-6(A), (1968), Municipalities;
§75-18-37 (1968), Sanitation Districts.
50- N.M. Stat. Ann. §14-29-6(A) (1968), Municipalities;
§75-18-37, (1968), Sanitation Districts.
51. N.M. Stat. Ann. §14-28-15B, (1968) .
52. IcL
53. N.M. Stat. Ann. §72-18-29, (1961).
54. N.M. Stat. Ann. §§72-18-37.16, 72-18-37.17 (Supp. 1971).
55. N.M. Stat. Ann. §14-25-2(A), (1968).
56. N.M. Stat. Ann. §68-6-6, (1961).
57. N.M. Stat. Ann. §14-25-3(B), (1968), Municipalities;
§75-18-14(H), (1968), Sanitation Districts; §14-28-12(0),
(1968) Association.
58. N.M. Stat. Ann. §14-25-l(A) (Supp. 1971), Municipalities;
§75-18-2(B), (1968), Sanitation Districts; §14-28-12,
(Supp. 1971), §14-28-3, (1968), Associations.
- 358 -
-------
PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
OKLAHOMA REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Responsibility for environmental control and prevention of
pollution in Oklahoma is vested in the Department of Pol-
lution Control.1 The Department is administered by the Pol-
lution Control Coordinating Board2 which is composed of the
heads of seven state agencies and departments and two mem-
bers appointed by the governor.3 The Board's primary func-
tion is to coordinate the pollution control efforts of its con-
stituent agencies,4 and it may compel the member agencies
to take investigative actions.5 In certain circumstances
the Board may act on its own initiative6 and after appro-
priate hearings may issue orders to prevent or abate pol-
lution.7 Violation of such an order is a misdemeanor and is
punishable by fine or imprisonment or both.8 Injunctive
relief is also available.9
Two of the member agencies, the Oklahoma Water Resources
Board (OWRB) and the State Department of Health, have express
responsibilities regarding control of water pollution.10 The
OWRB is assigned several functions among which are developing
programs for prevention, control and abatement of water pol-
lution,11 establishing water quality standards,12 and col-
lecting and disseminating information regarding water pol-
lution control.13 The OWRB is also the primary regulatory
agency for industrial wastes. Permits must be obtained
from the Board in order to: (1) construct, modify, or oper-
ate an industrial disposal system; (2) increase the volume
or strength of industrial waste discharges; (3) construct,
install, modify or operate any commercial establishment or
industry which would increase the discharges of wastes into
waters of the state; and (4) to construct any new outlet
for discharge of industrial wastes.14 The Board may issue
orders to fulfill its responsibilities;15 violations of
these orders are misdemeanors . 1 6
The State Board of Health establishes standards, rules, and
regulations for the construction and extension of sewer sys-
tems, sewage treatment plants and facilities connected there-
with.17 In addition the Department of Health must operate a
system of control tests and laboratory checks of sewage treat-
ment plants on at least a monthly basis.18 Permits must be
- 359 -
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obtained from the State Commissioner of Health before con-
struction may begin on sanitary sewer systems, sewage or waste
treatment plants or for any extension thereof.19 Permits
must also be obtained before there can be any discharge of
.sewage into waters of the state.20 Additionally, sixty days
notice must be given to the State Commissioner of Health be-
fore industrial wastes can be discharged into a sewer.21
Such notice must include information regarding volume, strength,
and chemical constituents of the waste in order that the effect
of such waste on treatment plants and the receiving waters
99
may be evaluated.
An additional responsibility of the State Commissioner of
Health is to license sewage treatment plant operators.23
Such treatment plants as designated by the Commissioner24
may not be operated unless there is a licensed operator in
charge.2 5
Waste treatment management agencies are operated by rural
sewer districts,26 sewer improvement districts,27 and public
trusts.28 Municipal corporations seemingly could own and
operate waste treatment facilities;29 however, there is no
specific statutory authority to this effect.
Rural Sewer Districts may be formed to serve areas outside
the limits of incorporated municipalities; however, such mu-
nicipalities of less than 5,500 in population may be included.30
Sewer improvement districts may be formed by areas within a
county susceptible of being served by a common sewer system
for domestic uses.31 There is some authority that a sewer
iApprovement district may not include areas within an incor-
porated community.32
Public trusts can be created to operate utilities for the
benefit of municipalities, counties, or other political or
governmental subdivisions.33 The powers of the trustee are
set forth in the instrument creating the trust, and the terms
of the instrument are controlling.3
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1.2 Schematic Diagram of Existing Agencies
Department of Pollution Control
(Pollution Control Coordinating Board)
JL
1
Oklahoma Water
Resources Board
State Department
of Health
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208 (c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
As noted in the preceding section, municipalities presumably
may operate waste treatment facilities. The Oklahoma Consti-
tution authorizes municipalities to engage in business35 and
this authority is repeated in the statutes.36 Additionally
cities and towns have statutory authority to construct and
maintain sewer lines.37 In the absence of specific statutory
authority concerning waste treatment facilities operated by
municipalities, all authorities required by §208(c)(2) must
be implied from this general grant of authority to carry on
business. Therefore, to avoid repetition, municipalities'
authorities will not be discussed in the following sections,
except for §2.4 regarding authority to incur short- and long-
term indebtedness.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c) (2) (C)].
Rural districts have express statutory authority to meet the
requirements of this section,38 as do sewer improvement dis-
tricts. 39
Public trusts can be created to further any proper function of
the beneficiary of the trust.1*0 Assuming construction and op-
eration of waste treatment works are proper functions of cities,
towns, and counties, public trusts can be created to perform
these f unctions. "* l If the authority to build new works and
to operate new and existing works is contained in the trust
instrument this should be sufficient to meet the requirements
of this section.1*2
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2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[5208(c) (2) (D)] .
Rural districts have express authority to accept federal grants.43
These districts have implicit authority to accept grants from
sources other than the federal government."*1* For the other
management agencies this authority might be implied from their
general powers, as in the case of sewer improvement districts,
or in the case of public trusts this authority could be included
within the trust instrument.
The Pollution Control Coordinating Act1*5 states that the State
Department of Health is to be the recipient of federal funds
to administer the Construction Grants Program for municipal
treatment works.1*7 There are no statutory provisions deline-
ating the Department's role as a recipient of these funds.
Regulations of the Department could insure that grants not be
diverted thereby avoiding any potential problem.
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [§208(c) (2) (E)] .
Rural districts and sewer improvement districts have express
statutory authority to charge for their services.1*8
Since public trusts may issue revenue bonds [see §2.4.2] such
agencies have implied authority to charge for services. Such
authority could be reinforced if it is contained in the trust
instrument.1*9 The governmental or political subdivisions which
are the beneficiaries of the trust must retain control of the
rates and charges levied by the trustees.50
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)].
There is no express statutory provision authorizing any of the
a^ncies to base their charges on characteristics of effluents
discharged by the users; however, this authority may be implied
for all the agencies. Rural districts' charges must be just,
reasonable and nondiscriminatory;5l charges for sewer improve-
rrent district services may be made as the Hoard of Directors
deems expedient.52 While there are no similar provisions gov-
^rning charges levied by trustees of a public trust, it is
- 362
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reasonable to assume such equitable limitations apply. These
descriptions of the authority to charge would impliedly allow
charges to be based on characteristics of effluent. This im-
plication is strengthened by an expression of legislative con-
cern that notice of discharge of industrial wastes contain
information about the volume, strength, and chemical constit-
uents of the waste to be discharged.53
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Fed-
eral Portion of the Construction Costs of Treat-
ment Works Reasonably Attributable to Treatment
of Such Industrial Wastes. [§204(b) (1) (B)].
None of the local management agencies have express authority
to recover these costs from industry.
As noted in the preceding section, authority to establish
rates and charges by the agencies is limited by general con-
siderations of reasonableness. Implicit in such authority
is the power to base charges so as to meet the agency's con-
tractual obligation. This implicit authority could be suffi-
cient to meet the requirements of this section.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)] .
All management agencies, as noted below, have authority to
incur indebtedness.
The method of financing employed by sewer improvement districts
is neither strictly general obligation funding nor revenue
funding. These districts may issue bonds on which the principal
and interest are paid by assessments levied against the property
within the districts.54 The bond issue can be made only after
approval by the electorate.55
2.4.1 General Obligation Funding.
Financing the purchase, construction or repair of municipally
owned and operated waste treatment facilities is limited to
this method of financing.56 The restriction is imposed by
the state Constitution,57 which requires that every such bond
issue be approved by the electorate and that an annual tax
be levied to pay the principal and interest of the bonds.58
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2.4.2 Special Funds and Revenue Funding.
Rural districts may issue bonds secured by the districts' prop-
erty, assets and revenues.59 Rates and charges of the district
must be sufficient to pay the principal and interest on such
indebtedness.6 °
Public trusts have authority to issue revenue bonds.61 Prior
to incurring such indebtedness, if the issue is greater than
5% of the existing debt of the trust, two-thirds of the govern-
ing body of the beneficiary must vote their approval.62
2.4.3 Other Methods of Financing.
Municipalities may utilize a lease-purchase method of financing.63
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c) (2) (G)] .
There is no specific statutory provision granting this authority
to any of the management agencies. As noted in §2.3.1 supra
all the management agencies have implicit authority to charge
different categories of users for services. This authority
should encompass the authority to assure each participating
community pay its fair share.
2.6 Authority to Refuse to Receive Any Wastes from Any Munic-
ipality or Subdivision Thereof, Which Does Not Comply
With Any Provisions of an Approved Plan Under §202 Ap-
plicable to Such Area. [§208 (c) (2) (H)] .
None of the management agencies have express authority to
refuse to treat wastes from a non-complying municipality.
All agencies, however, have authority to make rules and reg-
ulations ,6k or, in the case of rural districts, authority
to exercise all powers necessary to carry out their functions.65
From these general powers might be implied the authority to
"cut-off" existing services.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
There is no statutory provision expressly granting this authority
to any of the management agencies. As in the preceding section,
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this authority might be implied from the general powers of the
respective agencies.66 It should be noted that the powers of
the state regulatory agencies in this area, as described in
§1.1, are far reaching, and these state regulatory agencies
could perform this function.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities Or Sub-
divisions Thereof Which Do Not Comply with the
Areawide Plan.
There is no statutory provision authorizing any management
agencies to impose such sanctions, and as in §2.6.1 the only
provisions from which such authority might be implied are
the sections concerning general powers.67 Also, the powers
of the state regulatory agencies in this regard should be
noted as described in paragraph 1.1.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
No management agency has express authority to accept or refuse
industrial wastes.
Rural districts can provide services to all subscribers,68
and any firm, corporation or partnership may be a subscriber.69
Implicit in these provisions is the authority to accept for
treatment industrial wastes.
Public trusts with municipalities as beneficiaries presumably
will provide service to all the residents within the community,
including industry, if any. The authority to accept or refuse
industrial wastes should be contained in the trust instrument.70
Sewer inprovement districts are established to provide common
sewer systems for domestic uses.71 This legislative state-
ment of purpose seemingly excludes authority for the district
to treat industrial waste.
All agencies should reasonably have the power to require pre-
treatment of industrial wastes, at least where necessary to
protect the treatment works.
3.0 SUMMARY
Rural districts and public trusts have either express or implicit
authority sufficient to meet the requirements for construction
grants, with one major exception. This exception is noted in
the following sections.
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Sewer improvement districts also meet most of the requirements
with two exceptions as noted below.
3.1 Deficiencies
All management agencies lack express authority to refuse to
treat wastes from noncomplying communities [§§2.6, 2.6.1,
2.6.2]. Also it is not clear whether such authority can be
implied for these agencies.
Sewer improvement districts apparently are not authorized to
treat industrial wastes [§2.7].
There are no statutory guidelines as to how the State Depart-
ment of Health is to serve as recipient of federal funds for
construction programs [§2.2]; however, this may not be a prob-
lem since in practice the Department may serve only as a
conduit or auditor of funds.
Legislation granting authority or clarifying existing authority
so as to remedy these deficiencies is desirable.
4.0 BIBLIOGRAPHY
1. Comment, Water and Watercourses: Water Pollution Laws
and Their Enforcement in Oklahoma, 22 Okla. L. Rev. 317,
(1969).
FOOTNOTES
1. Okla. Stat. Ann. Tit. 82, §932(a) (Supp. 1972).
2. Okla. Stat. Ann. Tit. 82, §932 (b) (Supp. 1972).
3. Okla. Stat. Ann. Tit. 82, §932(b) (Supp. 1972). These
are the State Commissioner of Health, the Director of the
Oklahoma Water Resources Board, the Director of the Depart-
ment of Wildlife Conservation, the Chairman of the Oklahoma
Corporation Commission, the Director of Industrial Develop-
ment and Parks Department and the Executive Director of
the Soil Conservation Board.
4.
5.
6.
7.
8.
9.
10.
Okla.
Okla.
Okla.
Okla.
Okla.
Okla.
OWRB -
State
and 1-
Stat
Stat
Stat
Stat
Stat
Stat
.
Ann.
Ann .
Ann.
Ann .
Ann.
Ann.
Tit
Tit
Tit
Tit
Tit
Tit
- Okla. Stat.
Dept
905
82,
82,
82,
82,
82,
82,
Ann.
. of Health.
(1
973) .
§934
§934
§934
§936
§937
§937
Tit.
(a)
(b)
(c)
(c)
(a)
(d)
82,
Okla. Stat.
(Supp
(Supp
(Supp
(Supp
(Supp
(Supp
§926.
Ann.
. 1972) .
. 1972) .
. 1972) ,
. 1972).
. 1972) .
. 1972).
3 (Supp.
Tit. 63,
1972).
§§1-904
- 366 -
-------
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
Okla.
Okla.
Okla.
Okla.
Okla.
Okla.
Okla.
Okla.
Okla.
Id.
Okla.
Id.
Ok~la.
Okla.
Okla.
Okla.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Ann.
Ann .
Ann .
Ann.
Ann.
Ann.
Ann.
Ann .
Ann.
Ann.
Ann.
Ann.
Ann.
Ann.
Tit.
Tit.
Tit.
Tit.
Tit.
Tit.
Tit.
Tit.
Tit.
Tit.
Tit.
Tit.
Tit.
Tit.
82,
82,
82,
82,
82,
82,
63,
63,
63,
63,
59.
59,
59,
82,
§
§
§
§
§
§
§
§
§
§
§
§
§
§
926.
926.
926.
926.
926.
926.
3
3
3
4
3
(1) (Supp.
(6) (Supp.
(5) (Supp.
19
19
19
72)
72)
72)
(Supp. 1972) .
(8) (Supp.
10 (Supp. 19
1-904
1-904
1-90
1-90
1107
1102
1106
1324
8
8
(1973) .
(1973) .
(a) (1973).
(e) (1973).
(1971) .
1972)
72
) .
(b) (1971).
(1971) .
.3 (Supp. 1972).
27.
28.
29.
30.
31.
32.
33.
34.
35
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
These
districts may function alone or in conjunction with rural
water districts and rural solid waste management districts
Okla. Stat. Ann. Tit.
Okla. Stat. Ann. Tit.
Okla. Const. Art. 18,
(Supp. 1972).
Okla. Stat. Ann. Tit.
Okla. Stat. Ann. Tit.
19,
60,
§6;
82,
19,
§879
§176
Okla.
(1962)
(1971)
Stat.
Ann. Tit. 11, §563
1972)
Op. Atty. Gen. No. 70-156
Okla. Stat. Ann. Tit. 60,
Charitable Trusts: A Method
9 Okla. L. Rev. 222 (1956).
Okla Stat. Ann. Tit. 60, §178
Constit. Art. 18, §6.
§1324.2 (Supp.
§871 (1962).
(May 7, 1970) .
§176 (1971). See also, comment,
of Financing Public Utilities,
Okla.
Okla.
Okla.
§271
Okla.
Okla.
Okla.
Stat.
Stat.
(1959)
Stat.
Stat.
Stat.
Ann,
Ann,
Tit,
Tit,
11,
11,
§563
§270
(1971).
(Supp. 1972).
1 (Supp. 1972)
Tit. 11
Ann.
Ann.
Ann.
Tit,
Tit.
Tit,
82,
19,
60,
(Supp. 1972)
350 Pzd. 916 (1960)
1972)
1972)
§1324.10(3)
§875 (1962).
§176 (1971).
See Meder v. City of Oklahoma City, Okl
Okla. Stat. Ann. Tit. 11, §178 (1971).
Okla. Stat. Ann. Tit. 82, §1324.10(4) (Supp.
Okla. Stat. Ann. Tit. 82, §1324.10(3) (Supp.
Okla. Stat. Ann. Tit. 19, §874 (1962).
Okla. Stat. Ann. Tit. 82, §§931 to 940 (1972).
Okla. Stat. Ann. Tit. 82, §934 (k) (Supp. 1972).
Rural: Okla. Stat. Ann. Tit. 82, §1324.10(10) (Supp. 1972)
Sewer Imp. Dist. Okla. Stat. Ann. Tit. 19, §892 (1962).
Okla. Stat. Ann. Tit. 60, §178 (1971).
Okla. Const. Art. 18, §7; State ex. rel. Williamson v.
Garrison, Okla. 348 P 2d 859 (1960).
- 367 -
-------
51.
52.
53.
54.
55.
56.
57,
58,
59,
60,
61.
62,
63,
64,
65.
66.
67,
68,
69,
70,
71,
Okla,
Okla.
Okla.
Okla.
Okla.
State
66P2d
Okla.
Id.
Okla.
Okla.
Okla.
Stat.
Stat.
Stat.
Stat.
Stat.
Ann.
Ann.
Ann.
Ann.
Ann.
Tit,
Tit,
Tit,
Tit,
Tit,
82,
19,
63,
19,
19,
ex rel R.J. Edwards,
1059, (1937) .
Const. Art. 10, §27.
§1324.10(10) (Supp. 1972).
§892 (1962).
§l-908(e) (1973).
§884, 886 (1962).
§884 (1962) .
Inc. v. Keith 179 Okl 563.
Stat.
Stat.
Stat.
Industries,
Okla. Stat. Ann
Ann.
Ann.
Ann.
Inc. ,
Tit. 82, §1324.10(4) (Supp. 1972).
Tit. 82, §1324.11 (Supp. 1972).
Tit. 60, §176 (1971); Fort v. Oklahoma
Okl., 385 P2d. 470 (1963).
Tit. 60, §176 (10) (1971) .
Tit. 11, §563 (Supp. 1972),
§879 (1962)
Okla. Stat. Ann
Sewer Imp. Dist.: Okla. Stat. Ann. Tit. 19
Public Trusts: Okla. Stat. Ann. Tit. 19, §178 (1971).
Okla. Stat. Ann. Tit. 82, §1324.10(12) (Supp. 1972).
Rural Dist. Okla. Stat. Ann. Tit. 82, §1324.10(12) (Supp.
1972). Sewer Imp. Dist. Okla. Stat. Ann. Tit, 19, §879
(1962) Public Trusts Okla. Stat. Ann. Tit. 60, §178 (1971)
Okla. Stat. Ann. Tit.
Okla. Stat. Ann. Tit.
Okla. Stat. Ann. Tit.
Okla. Stat. Ann. Tit.
82,
82,
60,
19,
§1324.12 (Supp. 1972)
§1324.2 (Supp. 1972).
§178 (1971).
§871 (1962).
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
TEXAS REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Waste treatment management and pollution control agencies
in Texas are divided into four overlapping and interwoven
categories: state water administration, river compacts,
general law districts and local city, town and municipal
corporation authorities. Under state water administration,
the Water Quality Board is the principal authority in the
state on matters relating to the quality of water and "[a]11
other state agencies engaged in water quality or water pollu-
tion control activities shall coordinate those activities
with the board."1 This board is responsible for comprehen-
sive, general planning to control the state's water quality.2
Plans affecting designated areas shall be developed in con-
sultation with local governments and federal and state agen-
cies having a legitimate interest therein or otherwise
affected by the plan.3 The board also has the sole and
exclusive authority to set water quality standards4 and in
furtherance of this authority it may establish reasonable
rules in the regulation of waste charges.5 In the process
of such regulation the board operates a permit system6
which derives considerable strength from the proscription of
any discharges without a permit or other legislative authori-
zation that inter alia causes or will cause the pollution of
any state waters.7 The board has the supplemental authority
to directly "regulate and set the requirements and conditions
for the discharge of any waste" from any particular activity
not appropriately subject to a permit.8 The board also must
approve the plans for the construction or material alteration
of any sewer system or facilities not otherwise subject to
the approval of the State Department of Health or the Texas
Water Rights Commission.9 To compel compliance with "the
rules, orders, permits or other decisions of the board"
made pursuant to the above authority, it is authorized to
institute court enforcement proceedings.10
Under the Water Quality Board regional or areawide waste
collection, treatment and disposal systems may be established
to promote inter-governmental coordination in the efficient
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development of water resources.11 Broad authority is given
to the board in its supervision of these systems by its
regulatory power over construction and improvement plans,
permit denials and rescissions, and all waste discharges.12
Other regional planning of water quality and control in
river basins is lodged in river authorities of one or more
counties governed by directors appointed by the governor
or the Water Rights Commission.13 This planning process is
subject to the continuing supervision of the Water Quality
Board.14 These planning efforts are to be coordinated with
other public planning agencies having a significant interest
in any segment of an affected river basin.15 A component of
this planning process is exercised by the Water Development
Board through its power to define and designate river basins
as separate units for water development.16
The river compacts are inter-state agreements on the regula-
tion and control of water use17 and not water pollution.
The eight general law districts cover a wide field of water
management; however, only two of those districts are important
here. First are the municipal utility districts created and
operated under Article XVI, Section 59 of the Texas Constitu-
tion.18 These districts are primarily waste treatment manage-
ment agencies created by the Water Rights Commission.19 Se-
cond are the Water Control and Improvement Districts which
are created under Article XVI, Section 59 for the protection,
preservation and restoration of the purity and sanitary
condition of water within the state.20 These districts "may
include all or any part of one or more counties, including
any town, village, . . . municipal corporation, [or] any
other political subdivision of the state."21 Accordingly
these districts may take form as municipal districts with a
population of 30,000 or more and an assessable real estate
value of at least fifty million dollars;22 as master districts
made up of one or more general law districts other than
municipal utility districts;23 or as a district composed
singly of any city, town or municipal corporation.2^ This
flexibility in the scope of any Water Improvement District
is an attempt to coordinate the facilities and pool the re-
sources of homogeneous areas.25
Local city, town and municipal corporations are currently of
three types: those incorporated under the general law, under
special legislation, and under home rule charter.25 Home
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rule cities are covered by some portions of the general law
on public utilities as noted; otherwise, they are governed
under delegated home rule powers. All three types of cities
have waste treatment management authority.
Supplementing these four categories of state water legisla-
tion is the State of Texas Water Pollution Control Compact
whose signatories -- official agencies operating on a multi-
ple county or regional basis -- agree collectively to pay
25 percent of the estimated cost of all water pollution con-
trol projects in the state. The purpose of the compact is
to enable the state to take advantage of increased federal
grants based on the level of state payments.27
1.2 Schematic Diagram of Existing Agencies
I
Water Quality
Board
Water Rights Commission
Municipal Utility Districts
Water Control and Improvement Districts
Cities, towns and municipal corporations
1
Water Development
Board
State Department
of Health
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2 0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND
SELECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and
Existing Works as Recruired by Any Areawide Plan. [§208
(c) (2) (C)] .
The municipal utility districts are authorized to construct,
operate and maintain sanitation facilities inside or outside
of its boundaries28 and to provide service by contract29
to contiguous areas or those within the vicinity of the dis-
trict.30 These service abilities are, however, subject to
the state policy of encouraging areawide systems.31 Water
Control and Improvement Districts are also given the same
powers to construct, operate and maintain sanitation facili-
ties32 and to serve other areas outside the districts by
contract.33 However, in giving service to areas outside the
district, the contract may not imperil the ability of the
district to serve its own lawful demands.34
Regional or areawide systems are also authorized to construct,
operate and maintain one or more disposal systems,35 pur-
chase sewer systems by contract,36 or lease from any person
any required sewer system.37 These districts also have the
power to serve any person or public agency outside the
boundaries of the district.38
Home rule cities are authorized to construct, operate and
maintain a sewerage system.39 Special and general law
municipalities have this same authority and may additionally
extend the lines of the system outside of its boundaries
and sell the services of the system to any person or corpora-
tion and permit them to connect with the system.40 Further-
more "any city or town" within a district created under
Article XVI, Section 59 of the state constitution may con-
tract with that district for sewage transportation, treat-
ment and disposal services.41 "Any city or town" may also
contract with such districts to acquire, for its own benefit,
one or more sanitary sewer systems.42
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source for Waste Treatment Management Purposes.
[§208(c) (2) (D) ] .
Municipal utility districts have authority to accept grants
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and loans in any form and from any source approved by the
board of directors of the district, including the United
States.43 Water Control and Improvement Districts have the
authority to solicit funds from the United States and any
other source.44 There are no significant limitations on
the utilization of grants by the districts for waste manage-
ment treatment purposes.
The authority for regional or areawide districts and munici-
palities to accept and utilize grants from any source must
be inferred, in the absence of express statutory authoriza-
tion, from the general operating authority of these agencies.
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§ 208 (c) (2) (E) ] .
Municipal utility districts have authority to enforce all
necessary charges in addition to taxes to provide any dis-
trict facilities or services.45 This charging authority
does not expressly provide for a consideration of the volume,
nature or delivery flow rate of the effluent, but such a
basis may be inferred from the term "all necessary charges."
The district may also raise revenue by imposing a maintenance
tax for "planning, maintaining, repairing and operating all
necessary plants, . . . facilities, . . . [and] improvements
of the district."46 Water Control and Improvement Districts
also have the power to adopt "specific charges, fees or
rentals in addition to taxes,"47 but these districts are not
explicitly authorized to adopt the above charge bases. The
tax authority includes the power to levy and collect main-
tenance taxes.48
The Water Quality Board also has rate making authority over
those regional or areawide systems it has designated; after
a public hearing the Board "may set reasonable rates for the
furnishing of waste" treatment services to any person.49
The adoption of appropriate charge bases may be inferred from
this power to set reasonable rates.
Home rule cities have the general power "to demand and re-
ceive compensation for" services furnished.50 Encumbered
systems of any city or town are to establish rates for ser-
vices sufficient to pay all operating maintenance and bond
redemption expenses.51 City owned plants operating under
general law have the power to "regulate by ordinance, the
rates and compensation to be charged the public."52 The
bases for these rates are not set out by statute; therefore,
the inference is that the municipalities have the implied
authority reauired by paragraph 2.3.
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2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)] .
What authority there is to charge each category of user for
its proportionate share of the costs of services must be
inferred from the charging authority in paragraph 2.3.
Additionally there are several state court decisions support-
ing this inference. Most significantly a municipal corpora-
tion operating a public utility has the right to classify
consumers under reasonable classifications based on any matter
which presents a substantial difference as a ground of dis-
tinction. 5 3
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [ § 204 (b) (1) (B)] .
None of the waste treatment agencies have been given authori-
ty to recover capital costs from industry; however, none of
the agencies are subject to legislation that would prevent
them from doing so. Consequently this authority can only
be inferred from the general authority of the agencies to
charge for waste services.
2.4 Authority to Incur Short- and Long-term Indebtedness
[§208(c) (2) (F)] .
Municipal utility districts have general authority to borrow
money for any corporate purpose on short- and long-term
bases.54 Water Control and Improvement Districts under
Article XVI, Section 59 of the state constitution have long-
term debt capacities. Regional or area-wide disposal sys-
tems also have long-term55 and interim56 debt authority.
All cities and towns including home rule cities have the
authority to encumber their sewer systems and to evidence
their obligations by the issuance of bonds.57
2.4.1 General Obligation Funding.
General obligation bonds may be issued by municipal utility
districts for all legitimate needs of a sanitary sewer sys-
tem.58 These bonds may be issued in series, and they may
mature serially up to 40 years at any legal rate of interest
determined by the board of directors".59 Prior to issuance,
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the Texas Water Rights Commission must approve the proposed
project along with the "operation and feasibility of all
districts that issue bonds."60
Water Control and Improvement Districts organized under
Article XVI, Section 59 of the state constitution are
authorized to incur any debt "which is necessary to provide
improvements ... to achieve the purposes for which the
district was created."61 Approval of these need only be
by a majority vote.62 However, the board of directors of
these districts may limit this authority by a resolution
declaring "that during a period of not more than 15 years,
the district will not issue bonds in an amount of more than
25 per cent of the assessed value of taxable real property
in the district."63 The Texas Water Rights Commission must
also approve these projects and the organization and feasi-
bility of districts issuing bonds.64
The long-term debt of all cities and towns when issued to
build, purchase or mortgage their sewer system do not re-
present debts of the city or town but only charges on the
property of the system so encumbered.65
2.4.2 Special Funds and Revenue Funding.
Municipal utility districts, without an election, may issue
revenue bonds to mature over not more than 20 years and to
bear an interest rate of not more than 10%.66 These districts
may also issue refunding bonds, without the approval of the
Texas Water Rights Commission,67 in order to refund any of
its outstanding bonds may or may not mature serially over a
period of 40 years at any legal rate of interest approved
by the district's board of directors.68
Water Control and Improvement Districts may issue revenue
bonds under terms and conditions thought desirable by its
board of directors.69 These districts may also issue re-
funding bonds to refund any bonds issued by it.70
All cities and towns, including home rule cities may issue
revenue bonds.71 As to the refunding of tax bond indebted-
ness, general law cities may refund such bonds when in the
aggregate they are not less than 30 per cent of the assessed
valuation of the property in such city. The bonds may be
issued without an election but the interest rate is limited
to not more than the average rate of bonds so refunded, and
the principal may not exceed the combined amount of the
bonds so refunded. The refunding bonds will have a maturity
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as set by the governing body of the city or town.72 All
cities including home rule cities may refund revenue bonds
with revenue bonds at an interest rate not to exceed 6% and
at a maturity not to exceed 40 years.73
2.5 Authority to Assure in Implementation of Its Waste
Treatment Management Plan That Each Participating
Community Pay Its Proportionate Share of Treatment
Costs. [§208(c) (2) (G) ] .
For users within a municipal utility district this authority
must be inferred from its general charging power. However,
for areas served outside the district, the district is re-
quired to establish rates sufficient to meet the expenses
of operating and maintaining a sewer system serving those
outside areas and to pay the indebtedness associated with
that segment of the system.74 Cities contracting with an
Article XVI, Section 59 district for sewer service are in
turn required to establish rates sufficient inter alia to
pay the city's obligations under that contract.7 5
Water Control and Improvement Districts are allowed not only
to establish reasonable rates and charges,76 but also to
levy and collect taxes to pay for the construction, operation
and maintenance of the district on a benefit basis; i.e.
based on the amount and value of benefits accruing to pro-
perty in the district.77 This taxing power is only to supple-
ment the charging authority of the district.78
Special and general law cities would also appear to have
this authority when serving areas outside the boundaries of
the city or town. The contracts for such service are to be
on "such terms and conditions as may appear to be for the
best interest of such town or city."79
Thus, through their general powers to charge, to tax and to
contract, these management agencies can assure compliance
with this requirement of the Act.
2.6 Authority to Refuse to Receive Any Wastes From Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of an Approved Plan Under
5202 Applicable to Such Area. [§ 208 (c) (2) (H)] .
This authority is lacking for all agencies except Municipal
Utility Districts. These districts may discontinue service
to prevent abuses or to enforce the payment of charges that
have remained unpaid for at least six months.80 This,
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however, is not broad enough to come within the requirements
of this paragraph.
There is a cut-off authority in the Water Quality Board per-
mit program, since all unauthorized discharges are prohib-
ited.81 The revocation of a permit for failure to comply
with the conditions of the permit may prove to be an effec-
tive sanction. Although the conditions of a permit may in-
clude compliance with an areawide plan, the cut-off sanction
involved is exercised independently and not in conjunction
with the various waste treatment agencies.82
2.6.1 Authority to Deny New or Additional "Hook-Dps"
(Moratorium Effect).
This authority is also lacking among the various waste treat-
ment agencies, and only through the operation of the permit
program by the Water Quality Board can this authority be
effectively implemented.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply with
the Areawide Plan.
Municipal Utility Districts may adopt reasonable rules and
regulations for the breach of which a penalty may be assessed
in an amount not to exceed $200 or imprisonment for 30 days
or both.83 However, on its face the statute authorizing
this rule making authority would not seem to be broad enough
to encompass all facets of an areawide plan.84 The same
authority with the same limitations is found in the Water
Control and Improvement Districts.85
The cities, towns and municipal corporations are likewise
without authority of the scope required by this paragraph.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I) ] .
Municipal Utility Districts are specifically authorized to
collect, treat and dispose of all domestic, industrial and
communal wastes;86 however, all other waste treatment
agencies must rely on their overall authority to accept
sewage in order to claim this authority. With such skeletal
authority, there is no authorization for these agencies to
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set criteria for the acceptance of such wastes to safeguard
their treatment facilities. This power to control the
quantity, character and quality of industrial waste charges
is independently lodged in the Water Quality Board permit
program
87
3.0 SUMMARY
The Texas waste treatment agencies are not able to claim
full authority to comply with the requirements of this
study. Although most requirements have been met expressly
or by inference, none of the agencies have been granted
power to recover the federally funded portion of capital
costs from industry. Furthermore, none of the agencies have
been given the power to deny new or additional "hook-ups"
or impose other penalties for non-compliance with an areawide
plan. Otherwise these agencies appear to comply with the
requirements of the Act included in this study.
3.1 Deficiencies
All of the agencies should be given explicit authority to
charge for sewer services on the basis of the volume, com-
position and delivery flow rate of the sewage. The agencies,
except for municipal utility districts, do not have explicit
authority to receive industrial wastes, nor do they have
the power to "cut-off" existing users for non-compliance
with an areawide plan.
4.0 BIBLIOGRAPHY
1. Local and Regional Water Pollution Control in Texas.
W. Thomas Jacks, 48 Texas L. Review 1286 (1970).
2. Current Problems, Water Pollution Control in Texas,
48 Texas L. Review 1029 (1970) .
1
2.
3,
4
5,
6,
7
8.
V.T.C.A.
V.T.C.A.
V.T.C.A.
V.T.C.A.
V.T.C.A.
V.T.C.A.
V-T.C.A.
, Water Code
Water Code
Water Code
Water Code
Water Code
Water Code
Water Code
V.T.C.A., Water Code
FOOTNOTES
§21.257 (1972).
§21.062 (1972).
§21.088(d) (1972) .
§21.075 (1972).
§21.061 (1972).
§§21.079 to 21.082 (1972)
§21.251 (1972).
§21.092 (1972).
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9.
10.
11.
12.
13.
14.
15.
16.
17,
18,
19,
20,
21,
22,
23,
24,
25,
26
27,
28,
29,
30,
31,
32,
33
34,
35,
36,
37,
38,
39,
40,
41.
42,
43,
44,
45,
46,
47,
48,
49.
50.
51.
52.
V. T . C . A. ,
V.T.C.A.,
V.T.C.A.,
V.T.C.A.,
V.T.C.A.,
V.T.C.A.,
V.T.C.A.,
V.T.C.A.,
V.T.C.A.
Water Code §
Water Code §
Water Code §
Water Code §
Water Code §
Water Code §
Water Code §
, Water Code §
, Water Code,
V.T.C.A., Water Code §
V-T.C.A., Water Code §
V-T.C.A., Water Code §
V.T.C.A., Water Code §
V.T.C.A., Water Code §
V.T.C.A., Water Code §
V.T.C.A., Water Code §
V.T.C.A., Water Code §
Vernon's Ann. Civ. St.
Function of the Cities
O'Quinn p. XXVI.
V.T.C.A., Water Code §
V.T.C.A., Water Code §
V.T.C.A., Water Code §
Water Code §
Water Code §
Water Code §
V.T.C.A., Water Code §
Id.
Water Code §
Water Code §
Water Code §
Water Code §
Vernon's Ann. Civ. St.
Vernon's Ann. Civ. St.
Vernon's Ann. Civ. St.
Vernon's Ann. Civ. St.
V.T.C.A., Water Code §
Water Code §
Water Code §
Water Code §
V.T.C.A., Water Code §
V.T.C.A., Water Code §
V.T.C.A., Water Code §
Vernon's Ann. Civ. St.
Vernon's Ann. Civ- St.
Vernon's Ann. Civ. St.
V.T.C.A.,
V.T.C.A.,
V.T.C.A. ,
V.T.C.A.
V.T.C.A.
V.T.C.A.
V.T.C.A.
21.086 (1972).
21.066 (1972).
21.201 (1972) .
21.204 (1972) .
25.101 (1972).
25.106 (1972).
25.104 (1972).
11.101 (1972).
Title 3 (1972).
54.011 (1972).
54.014 (1972).
51.121 (1972).
51.012 (1972) .
51.038 (1972) .
51.047 (1972).
51.052 (1972).
51.048 (1972).
, Title 28, History, Status and
, Towns and Villages, Trueman
21.095 (1972).
54.201(b) (1972) .
54.218(c) (2) (1972) .
54.519 (1972).
54.233 (1972) .
51.122 (1972) .
51.137 (1972).
V.T.C.A.,
V.T.C.A.,
V-T.C.A.,
25.021
25.022
25.023
25.025
art.
art.
art.
art.
54.232
166
204
311
338
360
205
, (29) (1963)
(3) (1963).
(1963).
1972) .
51
54
54
51.
51,
21,
art.
art.
art.
(1972) .
(1972).
(1972).
(1972) .
1175(13)
1108(2),
11091-1
1109 (Supp.
(1972).
(1972).
(a) (1972) .
(a) (1972) .
(a) (1972) .
(1972) .
(1972).
1175(13) (1963)
1113 (1963).
1123 (1963).
- 379 -
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53. Gillam v- City of Fort
App. 1956).
54. V-T.C.A., Water Code §
55. V.T.C.A., Water Code §
56. V.T.C.A., Water Code §
57. Vernon's Ann. Civ. St.
58. V.T.C.A., Water Code §
59. V.T.C.A., Water Code §
60. V.T.C.A., Water Code §
61. V.T.C.A., Water Code §
62. V.T.C.A., Water Code §
63. V.T.C.A., Water Code §
64. V.T.C.A., Water Code §
65. Vernon's Ann. Civ. St.
66. V.T.C.A., Water Code §
67. V.T.C.A., Water Code §
68. V.T.C.A., Water Code §
69. V.T.C.A., Water Code §
70. V.T.C.A., Water Code §
71. Vernon's Ann. Civ. St.
72. Vernon's Ann. Civ. St.
73. Vernon's Ann. Civ. St.
74. V.T.C.A., Water Code §
75. Vernon's Ann. Civ. St.
76. V.T.C.A., Water Code §
77. V-T.C.A., Water Code §
78. V.T.C.A., Water Code §
79. Vernon's Ann. Civ. St.
80. V.T.C.A., Water Code §
81. V.T.C.A., Water Code §
82. V.T.C.A., Water Code §
83. V.T.C.A., Water Code §
84. V.T.C.A., Water Code §
85. V.T.C.A., Water Code §
86. V.T.C.A., Water Code §
87. V.T.C.A., Water Code §
Worth, 287 S.W. 2d 494 (Civ
54.302 (1972).
25.051 (1972).
25.055 (1972).
art. 1111 (1963).
54.501 (1972).
54.502 (1972) .
54.516 (1972).
51.402 (1972) .
51.414 (b) (1972) .
51.439 (b) (1972) .
51.421 (1972) .
art. 1111 (1963).
54.303(a) (1972) .
54.516 (1972).
54.514 (1972).
51.455 (1972).
51.455 (1972).
art. 1111 (1963) .
art. 1118n-3 (1963).
art. 1118n-10 (1963) .
54.519 (e) (1972) .
art. 11091-1 (1963) .
51.338 (1972).
§51.631 e_t seq. (1972)
51.508 (1972) .
art. 1108 (1963).
54.204(c) (1972).
21.251 (1972).
21.081 (1972).
54.209 (1972).
54.205 (1972) .
§51.127 and 51
54.201(2)
21.081(3)
131 (1972)
(1972) .
(4) (1972).
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REGION VII
-------
PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
IOWA REPORT
(1973)
1.0 OVERVIEW
1.1 Description of Existing Agencies
The Iowa legislature has recently enacted a new and very
comprehensive state-wide water pollution control program.
The central authority is the department of environmental
quality1 and it has the duty to prevent, abate and control
water pollution.2 The chief administrative officer of the
department is known as the executive director of environmental
quality and is appointed by the governor with the approval
of the senate.3
The department is subdivided into commissions according to
areas of responsibility. The current divisions consist of
the air quality commission, the water duality commission, the
chemical technology commission and the solid waste disposal
commission.1* The water quality commission's membership con-
sists of the chairman of the Iowa development commission-or
his designee and the following four members who are appointed
by the governor with the consent of the Senate:
1) a member actively engaged in diversified farming,
2) a member actively engaged in the management of a
privately owned manufacturing company, and
3) two members who are electors of the state.5
The water quality commission is the administrative arm of the
department which actually carries out the water pollution
control functions for the state and, as such, is charged with
developing comprehensive plans and programs for the preven-
tion, control and abatement of water pollution.6 The commission
is also responsible for the establishment of quality standards
and effluent standards pertaining to the waters of the state.7
Actual control of pollution is carried out via a permit system
and it is unlawful to construct or modify any sewage disposal
sy tern or to construct or use any new outlet for the discharge
of .ny sewage, industrial wastes or other wastes into the
waters of the state without first securing a written permit
from the department.8 The commission is responsible for es-
tablishing the rules and conditions under which the executive
director shall issue, revoke, modify or deny such permits.9
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Management of sewage treatment agencies is carried out at the
local level by cities, towns, counties and sanitary districts.10
Sanitary districts may be formed whenever any area of contiguous
territory is so situated that the construction, maintenance
and operation of a trunk sewer system and of a plant or plants
for the treatment of sewage and the maintenance of one or more
outlets for the drainage thereof, after having been so treated
by and through such plant or plants, will be conducive to the
public health, comfort, convenience or welfare.11 In addition,
any two or more cities or towns may jointly manage treatment
facilities if such cities or towns deem it to be to their
mutual advantage.12
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1.2 Schematic Diagram of Existing Agencies
State of Iowa
u>
CO
--] Legislature
Department of Environmental Quality
I Director I
Air Quality Commission Chemical Technology Commission Water Quality Commission Solid Waste Disposal Commission
Local Management Agencies
-------
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c)(2)(C)].
Cities, towns, counties and sanitary districts are authorized
and empowered to own, acquire, establish, construct, purchase,
equip, improve, extend, operate, maintain, reconstruct and
repair within or without the corporate limits of such city,
town, county or sanitary district, works and facilities useful
and convenient for the collection, treatment, purification and
disposal in a sanitary manner of the liauid and solid waste,
sewage, and industrial waste of any such city, town, county
or sanitary district.13
Likewise, the governing bodies of two or more cities or towns
may determine to make joint use of all or any part of the
sanitary sewer system of any or all of such cities or towns
or to construct a sanitary sewer system to be used jointly
by said cities or towns.1
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D) ] .
There is no specific statutory authorization concerning
acceptance of funds or grants although the legislature has
recognized such power exists in that local agencies must obtain
approval of the commission before applying for federal
assistance for pollution abatement.15
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208(c)(2)(E)].
All management agencies possess express statutory authoriz 'tion
sufficient to assure compliance with this provision.16
2.3.1 Each Category of user Will Pay Its Proportionate
Share of. the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b)(1)(A)].
All agencies possess the general power to establish and main-
tain just and equitable rates and charges for the use of and
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the service rendered by such works . x7 Such charges are to be
sufficient to pay the expenses of operation, maintenance and
repair18 of the system. From this one may assume that each
category of user will pay its proportionate share.
Cities and towns also have the express statutory duty to
assess equitable charges in proportion to the service rendered
and are required "to take into consideration in the case of
each such premises served, the quantity of sewage therein or
thereby produced and its concentration, strength, or river
pollution qualities in general."19
Likewise, the rates established by the board of trustees of
sewage districts are to be "ecmitable and in proportion to the
services rendered and the cost thereof and are to take into
consideration in the case of each such premises the quantity
of sewage produced thereby and its concentration, strength,
and pollution qualities."^0
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [§ 204 (b) (1) (B) ] .
There is no express statutory authorization providing for this
for any of the agencies discussed herein although one could
assume that compliance could be exacted through the general
powers of contract possessed by each agency.
2.4 Authority to Incur Short- and Long-term Indebtedness
[§208(c) (2) (F)] .
All management agencies are provided with the express statutory
authority needed to assure compliance with this provision.
These powers will be discussed in more detail infra.
2.4.1 General Obligation Funding.
With the exception of counties all management agencies have
the express authority to issue general obligation bonds for
the purpose of constructing, extending or improving sewage
treatment facilities.21 Such bonds must mature within twenty
years of their issuance22 and may bear a rate of interest
not exceeding seven percent (7%) per annum.23 In cities and
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towns such bonds may not create an indebtedness of more than
five percent of the actual value of the taxable property of
said city or town.24 In sanitary districts such bonds may
not become an indebtedness of the district in excess of five
percent of the value of the taxable property within such
district.2 5
2.4.2 Special Funds and Revenue Funding.
All management agencies are vested with the express statutory
authority to finance sewage treatment facilities and projects
via issuance of revenue bonds.26 All the details pertaining
to the issuance of such bonds and the terms and conditions
thereof, shall be determined by resolution or ordinance of the
municipality or sanitary district,27 with the only statutory
limitation being that the rate of interest on such bonds may
not exceed seven percent per annum.28
2.4.3 Other Methods of Financing.
Sanitary districts may also finance projects via issuance of
special assessments against benefited property.29
All management agencies may refund previously issued bonds as
they mature if necessary.30
All types of agencies are statutorily authorized to borrow
money from the federal government or an agency thereof for
these purposes.^ l
There has also been established a state fund known as the
"sewage works construction fund" which is administered by the
department.32 Such funds are used to help local agencies
finance treatment projects and facilities^ 3 and are adminis-
tered on a priority basis as established and determined by the
water quality commission.31*
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Flan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208(c)
(2) (G) ] .
All management agencies would be able to assure compliance
with the requirements of this provision through their charging
powers35 and their general powers of contract. In addition,
when facilities are jointly used or owned by two or more cities
or towns there is specific statutory authorization to settle
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the annual charge to be paid by each via contract.36 One may
assun.e that this would result in each paying its proportionate
share of treatment costs.
2.6 Authority to Refuse to Receive Any Wastes from Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of an Approved Plan under
§202 Applicable to Such Area. [ §208 (c) (2) (H)] .
Other than through their general powers of contract and rule
making powers local management agencies lack express statutory
authority in this respect.
The department does exert sufficient control to assure com-
pliance with this provision if one assumes that it would
withhold or revoke the necessary permit because of non-
compliance with such plans.37
2.6.1 Authority to Deny New or Additional "Hook-ups"
(Moratorium Effect).
The analysis of this situation would be very similar to that
discussed in Section 2.6, supra, with the main difference
being that this would almost surely be within the contractual
powers of the local agencies.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply with the
Areawide Plan.
Failure to comply with the permit provisions or with any order
issued by the department with reference to matters pertaining
to the pollution of water of the state is illegal and may
result in being fined therefore.38
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
All management agencies possess both general39 and specific40
statutory authorization to treat industrial wastes.
3 .0 SUMMARY
Iowa is extraordinarily well endowed with legislation con-
cerning water pollution control. Its legislation relating to
both water pollution control and sewage treatment facilities
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is better written, better organized and more succinct than
that pertaining to most other states. As a result, it is
faced with but a few deficiencies relating to compliance with
the requirements of the Act and with a little help from the
legislature it should have no trouble meeting federal standards
3.1 Deficiencies
Since the local agencies lack express authority to accept and
utilize grants, or other funds from any source for waste treat-
ment management purposes it would be helpful if legislation
were passed to expressly grant such authority.
Since the federal act requires that full recovery will be had
from the industrial users of the waste treatment works of the
federal portion of the construction costs of treatment works
reasonably attributable to treatment of such industrial wastes
legislation should be forthcoming which would require this
rather than placing total responsibility for securing such
compliance on local agencies through their powers of contract.
Even though the department would be able to assure compliance
with the requirements of Section 2.6 through its power to
revoke permits the local agencies lack any such express power.
Since the Act seems to envision such a harsh sanction for
noncompliance it would be most appropriate if the legislature
would grant sufficient express statutory authorization to local
agencies to assure that they have the power to exact the
compliance required.
Counties lack the authority to issue general obligation bonds
for financing construction of treatment works and, as such,
need legislative authorization to do so.
4.0 BIBLIOGRAPHY
1. Comment, Contracts of Political Subdivision in Iowa
Procedure, Defects, Recovery, 10 Drake L. Rev. 53(1960).
2. Hayes, Special Assessments for Public Improvements --
Pre-Assessment Procedure, 12 Drake L. Rev. 1(1962).
3. Hayes, Special Assessments for Public Improvements in
Iowa -- Part III: Making the Assessment, 14 Drake L. Rev.
3(1964).
- 390 -
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6,
7,
Hayes, Special Assessments for Public Improvements in
Iowa Utility Connections, 13 Drake L. Rev. 25(1963).
Hines and Schantz, Improving Water Quality Regulation
in Iowa, 57 Iowa L. Rev. 231(1971).
Water Quality Control, 56 Iowa L. Rev. 806(1971).
Woodroof, Pollution Control: Why Not Cost Allocation?,
21 Drake L. Rev. 133(1971).
8. Yeager, City and Town Boundaries, 19 Drake L. Rev. 1(1969).
FOOTNOTES
1,
2,
3,
4,
5,
6,
7.
8,
9,
10,
11,
12,
13,
14,
15,
16
Iowa Code Annotated, §455 B.I et seq.
Iowa Code Ann. §455 B.31.
Iowa Code Ann. §455 B.2.
. §455 B.4.
. §455 B.4(2) .
. §455 B.32(l) .
. §§455 B.32(2), 455 B.35.
. §455 B.45..
. §455 B.32(3).
. §394.1. See also,
§§391.11, 391-12, 391.1(1), 391 A
§§358.1 et sea., 358.12, 358.16.
Iowa Code Ann
Iowa Code Ann
Iowa Code Ann
Iowa Code Ann
Iowa Code Ann
Iowa Code Ann
Iowa Code Ann
cities and towns,
2; sanitary districts,
Iowa Code Ann.
Iowa Code Ann.
Iowa Code Ann.
Iowa Code Ann.
Iowa Code Ann.
§358
§392
§394,
§392,
§455 B.70(3) (d) . See also §394.1 which
1 et seq.
1. See also,
1 et sec
note 10, supra.
grants local agencies the authority to:
acquire by gift, grant, purchase, or condemnation,
or otherwise, all necessary lands, rights of way,
and property therefore, within or without the said
city, town, county or sanitary district, to purchase
and acquire an interest in such sanitary disposal
project or such works and facilities which are owned
by another city, town, county or sanitary district
and which are to be jointly used by them.
Iowa Code Ann. §394.9. See also, cities and towns,
§§393.1, 393.2, 393.4; sanitary districts, §358.20; joint
- 391 -
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17,
18,
19,
20,
21,
22.
23.
24.
25.
26.
27,
28.
29,
30,
31.
32,
33.
34,
35.
36,
37,
38,
39,
40.
projects by two or more municipalities, §§392.11(3),
393.1, 393.2, 393.4.
Iowa Code Ann. §349.9-
Id.
Iowa Code Ann. §393.2.
Iowa Code Ann. §358.20.
Cities and towns, §§391 A.35, 396.22; sanitary districts,
§358.2 (which incorporates the provisions of §§391.35,
396.22), jointly owned facilities, §392.11.
Id.
Id.
Iowa Code Ann.
Iowa Code Ann.
Iowa Code Ann.
Iowa Code Ann.
Iowa Code Ann.
Iowa Code Ann.
Iowa Code Ann.
Iowa Code Ann.
Iowa Code Ann.
Iowa Code Ann.
Iowa Code Ann.
§ §391 A.35, 396.22.
§§358.2, 391.35, 396.22,
§§394.1, 394.6. See also, 358.21, 392.11.
§394.6.
§394.13.
§358.22.
§ 394.12.
§ 394.6.
§455 B.67.
§455 B.68.
§ §455 B.69
455 B.70.
See notes 16-20, supra.
Iowa Code Ann. §392.1.
I.e., see notes 8 and 9 supra, and the accompanying text.
Iowa Code Ann. §§455 B.44, 455 B.45.
Iowa Code Ann. §394.1.
Cities and towns, §§393.1, 393.10, 393.14; sanitary
districts, §358.16.
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT
KANSAS REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Kansas is among the states which continue to use the more traditional
approach of administering water pollution control programs through
a state board of health. It has both a state board of health and
a state department of health which are jointly responsible for enforce-
ment of Kansas' pollution control laws. The board is vested with
both the authority to promulgate rules and regulations as may in
its judgment be necessary to protect the waters of the state from
pollution by oil, gas, salt water injection wells or underground
storage reservoirs and to establish water quality standards for the
waters of the state to protect their beneficial uses.2 The board
also has the authority to control the "disposal, discharge or escape
of sewage by or from municipalities, corporations, companies, insti-
tutions, state agencies, federal agencies, or individuals and any
plants, works, or facilities owned and/or operated by them."3 This
latter function is carried out via a permit application and issuance
authority1* and failure to comply with this requirement may result in
the assessment of a criminal penalty of $1000 per day for each day
the offence is maintained.5 All orders of the board are final unless
appealed within thirty (30) days after the order has been made.6 An
appeal may be taken from any final order or final determination of
the board by any person adversely affected, to the district court
of the county of residence of the appellant.7
In accordance with its rule making functions the board is also
authorized to establish minimum standards for sanitary water and
sewage systems and to suggest legislation which may be required to
adequately protect water supplies from pollution.8
Local health departments also play a role in that they are respons-
ible for administering the "sanitary codes"9 which are promulgated
by the county commissioners of each county in the state.10 Such
"codes" must be submitted to the state board of health for approval11
and upon approval they become law-complete with criminal sanctions
for violation thereof.12
The state department of health is also responsible for administer-
ing the state water pollution control account.13 It is the agency
responsible for determining priorities among projects11* and in
finally administering grants in aid to municipalities.15
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Management of sewage treatment facilities is carried out at the
local level and may be performed by any city, county, township,
township sewer districts and improvement districts. 6 In addition
to these general powers the various local agencies possess other
vestiges of authority via special statutory authorizations.18 The
exercise of these powers requires the approval of both the local
agency and the state board of health.
1.2 Schematic Diagram of Existing Agencies
State of Kansas
Legislature
State Board of Health
Executive Secretary
Kansas State Department of Health
I Director of Health
Division of
Environmental
Health Services
- 394 -
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208 (c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority, Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by any Area-Wide Plan. [§208 (c) (2) (C)].
All of the enumerated local management agencies are vested with
"all the powers necessary or convenient to plan, alter, enlarge,
extend, improve, construct, reconstruct, develop, redevelop, and
maintain" sewage systems and all appurtenances necessary in the
maintenance and operation of the same.19
2.2 Authority to Accept and Utilize grants, or other Funds
From Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
All of the agencies have the express statutory authority to
"borrow money and to apply for and accept advances, loans, grants,
contributions or any other form of financial assistance from the
federal government, the state, county or other public body" for
the purposes of water pollution control and sewage treatment facil-
ities.2^
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [§208 (c) (2) (E)] .
The various agencies all have express statutory authority to
adopt sewer service charges by ordinance or resolution.21
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency- [§204 (b) (1) (A)].
Agencies may base sewer service charges on a per unit volume of
water used22 and/or upon the strength and volume of sewage contri-
buted by each user.23 The proceeds of such sewer service improve,
construct, reconstruct, develop and redevelop sewer systems. 4
2.3.2 Full Recovery Will Be Had From the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works
Reasonably Attributable to Treatment of Such Industrial
Wastes. [§204 (b) (1) (B)].
None of the agencies are vested with the express statutory
authority to do this. However, they do possess the power to
- 395 -
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adopt rules and regulations providing for the management and
operation of their system.25 This, combined with their general
powers of contract26 could possibly be used to comply with this
provision of the act. Additionally, such agencies "may include
in any contract for financial assistance with the federal govern-
ment such conditions imposed pursuant to federal law as the
[agency] may deem reasonable and appropriate."27
2.4 Authority to Incur Short- and Long-term Indebtedness [§208
(0 (2) (F)] .
All management agencies have express statutory authority to
finance such projects via bonded indebtedness and this will be
more specifically discussed infra.
2.4.1 General Obligation Funding
The general water pollution act contains no express authority
relating to issuance of general obligation bonds and is there-
fore deficient in this respect. However, certain of the special
acts relating to individual management agencies do authorize
issuance of "improvement bonds" payable from assessments against
the benefited property.28 Such bonds are subject to a twenty-
one (21) year maturity limitation29 and may bear an interest rate
not to exceed seven percent (7%).30
2.4.2 Special Funds and Revenue Funding
All management agencies have express statutory authority to
issue revenue bonds to finance construction of sewer systems.31
The maturation date of such bonds may be established by the
issuing agency32 and may bear interest up to eight percent (8%).33
The issuance of such bonds are subject to approval by a majority
vote of the electors affected thereby.34
2.4.3 Other Methods of Financing
Kansas has a state water pollution control account from which
local agencies may receive aid. This account is expended according
to a system of priorities and is administered by the state board
of health.3 5
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community Pay
Its Proportionate Share of Treatment Costs. [§ 208 (c) (2) (G)].
There is no express authority mandating compliance with this
provision but agencies could certainly comply through the exercise
of their powers of contract relating to construction and development
as well as receipt and treatment of sewage.36 Also, they may
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include in any contract for financial assistance with the federal
government such conditions imposed pursuant to federal law as the
agency may deem reasonable and appropriate.37
2,6 Authority to Refuse to Receive Any Wastes From Any Munici-
pality or Subdivision Thereof, Which Does Not Comply With
Any Provisions of an Approved Plan Under §202 Applicable to
Such Area. [§208(c)(2)(H)].
The governing body of each agency has the statutory power to adopt
by ordinance or resolution, rules and regulations providing for the
"management and operation of its sewer system, prohibiting the
discharge of matter deleterious to the proper operation of the
treatment plant into the sewer system," and can "establish the types
and characteristics of sewage that may be discharged into the sewer
system."38 Thus, it may be that individual users who submit
improper sewage substances in violation of rules or regulations
for treatment could be cut-off but it is doubtful that such powers
could be expanded to assure compliance with the drastic measures
envisioned and required by this provision of the act.
2.6,1 Authority to Deny New or Additional Hook-ups (Moratorium
Effect).
Local agencies could most likely comply with this provision
through either their general power to contract or their power to
adopt rules and regulations.
One certain manner of assuring compliance is the permit function
that is carried out by both the state board of health39 and local
health departments." "
if 0
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
The only other sanctions available to local management agencies
relates to the failure to pay treatment service charges. In the
event any person, firm, corporation, political unit or organization
living or operating on premises connected to a sanitary sewer fails,
neglects or refuses to pay the service charges when due, the
governing body is authorized to refuse the delivery of water from
a publicly owned waterworks until such time as such charges are
fully paid.1*1
2.7 Authority to Accept for Treatment Industrial Wastes. [§208
(c)(2)(I)].
Management agencies possess the authority to contract with agencies
of the federal government, public bodies of the state of Kansas or
other states or with any private person or body for receiving and
treating sewage.lf2
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3 .0 SUMMARY
For the most part management agencies in Kansas would be able to
comply with the requirements of the act. The water pollution act
is basically well suited to the task of assuring compliance
although it would be better if the resolution adopting require-
ment (by the local governing body and the state board of health) **3
were repealed as this does not seem to serve any useful purpose
and at worst would hinder compliance.
It, would also be appropriate to repeal all of the various statutes
relating to individual management agencies'* ** as they are not
useful in the development of area-wide planning and construction
and are capable of injecting much conflict and confusion into
the development of Kansas law which is needed in this era of
regionalized pollution control planning and development.
3.1 Deficiencies
Kansas law does not expressly provide for recovery from industrial
users as is required by the act relating to section 2.3.2 supra
and legislation would be helpful to remedy this situation.
The water pollution act does not provide the authority to issue
general obligation bonds and should be amended to provide therefor.
Kansas, like most states, does not grant local agencies the
specific authority needed to comply with the requirements of
section 2.6 and since the act envisions such a drastic sanction
legislation should be forthcoming to so provide.
4.0 BIBLIOGRAPHY
1. Coggins, George Cameron. Regulation of air and water qua,lity
Kansas: a critical look at legislative ambiguity and
administrative discretion. 21 U.Kans. 1 (1973).
2. Collister, Hayes, and Sampson, Legal Muscle for the Fight
Against Pollution, 9 Washburn L. J. 342 (1970) .
3. Rausch, Municipal Borrowing in Kansas, 10 Kan. L. Rev. 515
(1962) .
4. Kansas Water Resources Board, A Study of Water Quality
Control Needs (1967) .
FOOTNOTES
1. Kansas Statutes Annotated, §65-165.
2. Kansas Stat. Ann. §65-171d.
3. Id.
4. Kansas Stat. Ann. §§65-165, 65-166.
- 398 -
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5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19-
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
Kansas Stat. Ann.
Kansas Stat. Ann.
Id.
Kansas Stat. Ann,
Kansas Stat. Ann,
Kansas Stat. Ann,
Kansas Stat. Ann,
Kansas Stat. Ann,
Kansas Stat. Ann,
Kansas Stat. Ann,
Kansas Stat. Ann,
Kansas Stat. Ann,
§65-167.
§65-171d.
§65-171h.
§§19-3701, 19-3703.
§19-3702.
§19-3704.
§19-3707.
§65-3301 et seq.
§65-3304.
§65-3303.
§§12-3104, 12-3103, 12-3102(b).
Id.
See inter alia, first class cities, ch. 13, K.S.A.;
second class cities, ch. 14, K.S.A.; third class cities,
ch. 15, K.S.A.; counties, §19-2704 et seq.; various
special types of township sewer districts, §§19-2731
et seq., 19-2787 et seq., 19-27, 114 et seq.; and
improvement districts, §19-2765 et seq.
Kansas Stat. Ann. §§12-3104, 12-3102(a) (b) .
Ann. §12-3104(h).
Ann. §12-3104(a).
Kansas Stat
Kansas Stat
Id.
Id..
Kansas Stat
Kansas Stat
Kansas Stat
Ann. §12-3104(b).
Ann. §12-3105.
Ann. §12-3104(f).
Kansas Stat. Ann. §12-3104(h).
E.g., improvement districts, §§19-2767, 19-2777 (note
30 year maturity limit); counties, §§19-2705, 19-2712;
township sewage districts, §§19-2731, 19-2792, 19-27,
120.
Ann. §10-103.
Ann. §10-1009 (a) .
Ann. §12-3104(c).
Ann. §12-3106.
Ann. §10-1009(b).
Ann. §12-3106.
Ann. §65-3301 et seq.
Ann. §12-3104(e) (f) .
Ann. §12-3104(h).
Ann. §12-3105.
See note 4, supra.
See notes 9, 10, 11, supra and the accompanying text.
Kansas Stat. Ann. §12-3105.
Kansas Stat. Ann. §12-3104, 12-3105.
Kansas Stat. Ann. §12-3103.
See note 18, supra.
Kansas Stat
Kansas Stat
Kansas Stat
Kansas Stat
Kansas Stat
Kansas Stat
Kansas Stat
Kansas Stat
Kansas Stat
Kansas Stat
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
MISSOURI REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
In 1972 the Missouri legislature revamped the states water
pollution control laws via passage of the "Missouri Clean Water
Law."1 The act created a water contaminant control agency known
as the "Clean Water Commission of the State of Missouri, whose
"domicile for the purposes of the act is deemed to be that of
the division of health of the department of public health and
welfare."3 The commission consists of six members, guberna-
torially appointed, with the advice and consent of the senate.4
The commission is directed to appoint an executive secretary who
shall act as its administrative agent and he is required to be
qualified, by education, training and experience, in technical
matters in water contaminant control.5
The commission is the state-wide agency in charge of enforcing
the state's water pollution control laws.6 It is charged with
planning functions which lead to the development of compre-
hensive programs pertaining to prevention and control of pol-
lution of the waters of the state.7 In carrying out its duties,
the commission is charged with prescribing water quality stan-
dards for the different waters of the state8 and to adopt rules
and regulations relating to the prevention of water pollution.9
The commission is also charged with adopting reasonable effluent
control regulations which require the use of effective treatment
facilities, or other methods or prevent water contamination, for
each and every significant source, potential source and classifi-
cation of sources of water contaminants throughout the entire
state.10
Actual control of water pollution throughout the state is ac-
complished via a permit-issuance system. It is unlawful for any
person to build, erect, alter, replace, operate, use, or maintain
any water contaminant source that is subject to standards, rules
or regulations of the commission unless he holds a permit from
the commission, subject to such exceptions as the commission may
prescribe by rule or regulation.11
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It is unlawful for any person to cause or permit any discharge
of water contaminants from any water contaminant source located
in Missouri in violation of the Missouri Clean Water Law, or
any standard rule or regulation promulgated by the commission
and upon proof of violation penalties of up to five thousand
($5,000) per day may be assessed for each day such violation
continues to occur.
All final orders and determinations of the commission are sub-
ject to judicial review if and only if all administrative rem-
edies are exhausted.13
In addition, the legislature has designated the commission as the
water pollution agency of the state for all purposes of any
federal water pollution control act.14
Management of sewage treatment facilities is carried out at the
local level and may be conducted by cities, towns, villages and
county sewer districts.15 In addition, there is special stat-
utory authorization regarding the creation of "common sewer dis-
tricts in certain areas (Jackson County)" which can result in
the creation of an additional management agency.16 Any city,
town or village is also authorized to acquire, construct, improve
or extend, maintain and operate a combined waterworks and sewer-
age system. Any such combined waterworks and sewerage system
may consist of an existing sewerage system, and existing water-
works , a sewerage system to be acquired or to be constructed or
a waterworks to be acquired or constructed or any combination
thereof and may include any improvements or extensions to be
acquired or constructed either to an existing sewerage system
or to an existing waterworks or to both.17
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1.2 Schematic Diagram of Existing Agencies
State of Missouri
Legislature
Department of Public Health
Division of Health
Clean Water Commission
Local Management Agencies
- 403 -
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGE-
MENT AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES,
AS SUCH RELATE TO CERTAIN PROVISIONS OF §208(c) (2)
AND SELECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and
Existing Works as Required by Any Areawide Plan.
I§208(c) (2) CCM.
In addition to all powers granted by law and now possessed by
cities, towns and villages in Missouri for the protection of
the public health, any city, town or village, whether organized
under the general law or by special charter or constitutional
charter, and any sewer district organized under chapter 249,
RSMo, as that chapter now exists, or as it may be amended, is
authorized to acquire, construct, improve or extend and to main-
tain and operate a sewerage system. Such sewerage system may be
constructed and operated either within or without the corporate
boundaries of any such city, town or village or sewer district.18
For the purposes of carrying out these powers the term "sewerage
system" means and includes any or all of the following:
(1) Sewerage systems and sewerage treatment plants, with
all appurtenances necessary, useful, and convenient for
the collection, treatment, purification and disposal in
a sanitary manner of the liquid and solid waste, sewage,
and domestic and industrial waste of any such municipality;
and
(2) Shall include combined storm water and sanitary sys-
tems ;
(3) The term shall also mean and include the construction
of such storm water sewers as, in the judgment of the govern-
ing body of any such city, town or village or sewer dis-
trict, may be necessary or desirable in order to relieve
sewers carrying sanitary and storm water loads of undue
loads or in order to permit the efficient operation of any
such sanitary sewers for the collection, treatment and dis-
posal of sewage and domestic or industrial waste including
combined storms and sanitary sewerage system.19
- 404 -
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Likewise, common sewer districts possess authority to comply
with this provision.20
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
I§208(c) C2) (D)].
All of the management agencies under consideration possess suf-
ficient statutory authority to comply with this provision.21
The commission is also authorized to administer federal grants
to municipalities and political subdivisions for the planning
and construction of sewage treatment works22 and in doing so
has the power to approve projects for which loans or grants
under any federal act are made to any municipality of agency
in Missouri.23
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [§208 (c) (2) (E)1.
In common sewer districts the board of trustees "shall impose,
charge and collect a reasonable charge from the sewer districts
and municipalities based upon the volume of water used by the
residential, commercial, and industrial establishments customers
within the corporate limits of such district or municipality."2^
The rates must be sufficient to pay operation and maintenance
costs, and to service debts and obligations created by revenue
bonds.25 In cities, towns, villages and sewer districts, spe-
cific statutory prescriptions relating to sewer charges and
rates are all based upon the issuance of revenue bonds. How-
ever, they are vested with the general power to do all things
necessary or convenient ot prevent or abate the pollution of
the waters of the state26 and it reasonably seems that this
would include,the authority to assess waste treatment charges
based upon the characteristics of the sewage received for treat-
ment.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b)(1)(A)].
- 405 -
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Common sewer districts have a great degree of flexibility
via their powers of contract relative to what types of
sewage they will accept for treatment.27 They should be able
to fully comply with this provision since they are authorized
to assess charges upon the basis of the amount of water used
by the users of the sewage treatment system, as well as upon
criteria such as paying operation and maintenance costs and
servicing debts and obligations.28
Again, compliance by cities, towns, villages and sewer dis-
tricts may only be assumed from the general conferral of power
that they have relating to the prevention and abatement of
water pollution.29
2.3.2 Full Recovery Will Be Had from the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works Reason-
ably Attributable to Treatment of Such Industrial
Wastes. [§204 (b) (1) (B)].
None of the agencies involved have the express statutory authori-
ty needed for compliance with this provision. They could, of
course, comply via their general powers of contract but such a
procedure mandated by statute would be preferable. Cities have
a statutory scheme for recovering construction costs attributable
to industries but no mention is made concerning recovery of the
federal portion of construction costs.30
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)].
All management agencies have sufficient statutory authority
in this respect.
2.4.1 General Obligation Funding.
Cities, towns, villages and sewer districts may issue bonds
for the purpose payable from taxes to be levied by such city,
town, village or sewage district.31 Issuance of such bonds
by sewer districts are subject to voter approval by a two-
thirds vote of the electors of such district that vote in an
election called for this purpose.32 Such bonds must be re-
tired within twenty years from the date of issuance.33 No
restrictions are put upon cities, towns and villages in this
respect.
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Common sewer districts have no authority to issue general ob-
ligation bonds.
2.4.2 Special Funds and Revenue Funding.
All of the Missouri agencies have express statutory authoriza-
tion to issue revenue bonds.34 In each case such bonds must
be authorized by the assent of four-sevenths of the qualified
voters of such city, town, village, sewer district or common
sewer district who shall vote on such proposition at an elec-
tion, either general or special.35 Such bonds may not bear
more than six percent interest and shall mature over a period
not exceeding thirty-five years.36
2.4.3 Other Methods of Financing.
The state may make grants, as funds are available, to local
agencies to assist them in the construction of those portions
of water pollution control projects which qualify for federal
aid and assistance under the provisions of the Federal Water
Pollution Control Act, as amended.37
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
Cc) C2J CG)].
All of the management agencies under consideration have suffi-
cient statutory authority to comply with this provision.38
2.6 Authority to Refuse to Receive Any Wastes from Any Munic-
ipality or Subdivision Thereof, Which Does Not Comply With
Any Provisions of an Approved Plan Under §202 Applicable
to Such Area. [ §208 (c) (2) (H)].
Common sewer districts may enter into agreements with the poli-
tical subdivisions which use its system regarding the manner
of discharge, and types of wastes which may be discharged into
the system for treatment. Such political subdivisions are un-
der a duty to comply with the terms of the agreement. If needed,
the circuit courts may be used to enforce compliance.39 Thus,
a common sewer district may be able to secure compliance al-
though the statute does not expressly provide for such a "cut-
off" power.
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There is no provision relating to this for cities, towns, vil-
lages or sewer districts, although a 1954 opinion of the at-
torney general states they may refuse service to users if reason-
able charges made therefore are hot paid.40
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
All management agencies would reasonably possess implied author-
ity in this area through their general powers of contract. How-
ever, the statutes involved do not specifically mention this
power to deny new connections.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the Area-
wide Plan.
The only statutory authority existing in regard to this pro-
vision concerns the commission's authority to institute civil
actions for injunctive relief or for the assessment of penalties
as described in paragraph l.l.41
2.7 Authority to Accept for Treatment Industrial Wastes. [§208
(c) (2) (I) ] .
Cities, towns, villages and sewer districts possess sufficient
statutory authorization to comply with this provision.42
Common sewer districts are authorized to accept the wastes from
other political subdivisions for treatment and thus may also
treat industrial wastes.43 Authority to require pretreatment
of industrial wastes may reasonably be implied from the power
of municipalities to enter into agreements with industries to
treat their wastes,44 and the power of common districts to pro-
tect their systems from harmful substances.45
3.0 SUMMARY
In most respects the local management agencies in Missouri are
vested with the necessary statutory powers needed to assure com-
pliance with the act. However, certain deficiencies espe-
cially concerning the required charging provisions are noted
and will be discussed in paragraph 3.1.
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3.1 Deficiencies
In common sewer districts sewage treatment rates are established
upon the basis of water consumption and operational costs rather
than upon the strength, character and volume of sewage treated.
Legislation would be needed to provide more express statutory
authority in order to assure compliance with the federal act.
Cities, towns, villages and sewer districts also lack the ex-
press statutory authorization to make charges upon this basis
and legislation would be helpful to assure compliance.
Express authority is lacking for all agencies to provide for
the recovery of the federal portion of construction costs from
industrial users. Common sewer districts need statutory author-
ization to issue general obligation bonds as they currently
lack this power.
Missouri has not provided its local management agencies with
the express statutory powers needed to comply with the require-
ments of Section 2.6. Since the federal act envisions such
sanctions, specific legislation would be required to assure
compliance.
4. 0 BIBLIOGRAPHY
Department of Business and Administration Water Resources Board
(Publication WRB2), Missouri Water Plan: State Laws Policy and
Programs Pertaining to Water and Related Land Resources, 20-27
(1969).
FOOTNOTES
1. Missouri Rev. Stat. Ann., §204.006 et seg. (Supp.1972).
2. Missouri Rev. Stat. Ann., §204.021(17.
3. Id.
4. Id.
5. Missouri Rev. Stat. Ann., §204.021(4).
6. Missouri Rev. Stat. Ann., §204.026(1).
7. Missouri Rev. Stat. Ann., §204.026(2).
8. Missouri Rev. Stat. Ann., §§204.026(7), 204.036.
9. Missouri Rev. Stat. Ann., §§204.026 (8) (9), 204.036.
- 409 -
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10. Missouri Rev. Stat. Ann., §204.041.
11. Missouri Rev. Stat. Ann., § § 204 . 026 (.13) , 204 . 051 (2) (3) .
12. Missouri Rev. Stat. Ann., §204.076.
13. Missouri Rev. Stat. Ann., §204.071.
14. Missouri Rev. Stat. Ann., §204.136.
15. Missouri Rev. Stat. Ann., §250.010(1963). Note also that
the various individual agencies have, in addition to §250.010,
various other specific statutory powers and authorizations
relating to management of sewage treatment facilities.
E.g., first class cities, §§73.110(13), 73.120, 88.316;
second class cities, § 75.110(11) (14) ; third class cities,
§§77.140, 77.150, 77.530, 91.090, 91.450; fourth class
cities, §§79.380, 79.390, 91.010, 91.450; towns and vil-
lages, §§80.090(29), 88.832; and various types of county
sewer districts, §§249.010, 249.763, 249.440.
16. I.e., Section 204.250(1) states:
If the construction and maintenance of a common sys-
tem of trunk sewers and sewage treatment plants is neces-
sary to secure proper sanitary conditions for the preser-
vation of public health in a natural drainage area the
major portion of which lies within a county of the first
class, containing all or part of a city having a population
of four hundred fifty thousand or more, or second class,
or in all counties of the third class now or hereafter
having a population of more than thirty thousand inhabitants,
with an assessed valuation of more than twenty-six million
dollars, and containing all or part of a city having four
hundred fifty thousand inhabitants, and which natural
drainage area contains all or portions of several drain-
age basins, several municipalities or sewer districts, and
if a common sewer district encompassing the entire area
would be eligible for federal aid and assistance under the
provisions of Title 33, Section 1151 et seq. of the United
States Code Annotated, as now or as may hereafter be amended,
the area may be established and incorporated as a common
sewer district under Sections 204.250 to 204.470 in the
following manner: The county court, or in charter counties,
the county executive with the concurrence by resolution
of the county legislature, of the county within which the
major portion of the area lies may petition the circuit
court having jurisdiction over the major portion for the
- 410 -
-------
17.
18.
19.
20,
21,
22,
23,
24,
25,
26,
27,
28,
29,
30
appointment of commissioners as herein provided, and to
take further action as may be necessary for the submission
to the legal voters residing in the area of the question
whether the area shall be organized and incorporated as
a common sewer district under Sections 204.250 to 204.470.
Missouri Rev
Missouri Rev
Missouri Rev
Missouri Rev
Cities, §250
common sewer
Missouri Rev
Missouri Rev
Missouri Rev
Id.
Missouri Rev
Missouri Rev
Missouri Rev
Missouri Rev
. Stat. Ann., §250.020(1963).
, Stat. Ann., §250.010(1).
. Stat. Ann., §250-010(2).
, Stat. Ann., §§204.290, 204.330, 204.350.
,040(4); sewer districts, §250.050 (3) (1963) ;
districts, §204.360(2), 204.460(1972).
. Stat. Ann., § 204.026 (10) (Supp. 1972).
, Stat. Ann., §204 .136 (2) (3) .
. Stat. Ann., §204.440(1972).
. Stat. Ann., §250.240.
. Stat. Ann., § 204.330 (Supp. 1972).
, Stat. Ann., §204.440.
, Stat. Ann., §250.240 reads as follows:
It is the purpose of this chapter to enable cities,
towns and villages and sewer districts to protect the
public health and welfare by preventing or abating the
pollution of water and creating means for supplying whole-
some water, and to these ends every such municipality
and sewer district shall have the power to do all things
necessary or convenient to carry out such purpose in
addition to the powers conferred in this chapter. This
chapter is remedial in nature and the powers hereby granted
shall be liberally construed.
See §250.030, which reads as follows:
When determined by its governing body to be in the
public interest and necessary for the protection of the
public health, any municipality is authorized to enter
into and perform contracts, whether long-term or short-
term, with any industrial establishment for the provision
and operation by the municipality of sewerage facilities
to abate or reduce the pollution of waters caused by dis-
charges of industrial wastes by the industrial establish-
ment to the municipality of amounts at least sufficient,
- 411 -
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in the determination of such governing body, to compensate
the municipality for the cost of providing (including pay-
ment of principal and interest charges, if any), and of
operating and maintaining the sewerage facilities serving
such industrial establishment.
31. Missouri Rev. Stat. Ann., §§250.040(2), 250.050(2).
32. Missouri Rev. Stat. Ann., §250.060(1).
33. Missouri Rev. Stat. Ann., §250.060(3).
34. Cities, towns, and villages, 250.040(5); sewer districts,
§250.050(4); common sewer districts, §204.360(3).
35. Missouri Rev. Stat. Ann., §§250.070(1); 204.370(1).
36. Missouri Rev. Stat. Ann., §§250.080(3); 204.380(3).
37. Missouri Rev. Stat. Ann., § § 204.101(Supp. 1972).
38. Cities, towns and villages, §§250.220, 250.240, 250.190;
sewer districts, §§250.190, 250.200, 250.240; common
sewer districts, §204.290, 204.330, 204.440.
39. Missouri Rev. Stat. Ann., §204.330.
40. Op. Atty. Gen. No. 70, Peterson, 8-25-54. See also,
§204.320.
41. Missouri Rev. Stat. Ann., §204.076.
42. Missouri Rev. Stat. Ann., §§250.230, 250.240, 250.250.
43. Missouri Rev. Stat. Ann., §§204.250, 204.330, 204.440.
44. Missouri Rev. Stat. Ann., §250.230.
45. Missouri Rev. Stat. Ann., § 204.330(Supp. 1972).
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
NEBRASKA REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
In 1971 the Nebraska legislature promulgated a comprehensive
pollution control law known as the Environmental Protection
Act.1 The act concerns itself with the natural resources of
water, air and land2 and created a Department of Environmental
Control3 and an Environmental Control Council.4 The director
of the department is responsible for its administration and
administration of standards, rules and regulations adopted
by the council.5 The department is vested with all the
powers, duties and functions formerly vested in the Water
Pollution Control Council...insofar as they are not incon-
sistent with the specific provisions of the Environmental
Protection Act.6 The department also is vested with all the
powers, duties and functions that were formerly vested in
the Department of Health relating to the prevention of water
pollution.7
The Environmental Control Council (council, hereinafter)
consists of sixteen members, gubernatorially-appointed by and
with the advice and consent of the legislature, who serve
four-year terms.8 The council is responsible for adopting
classification systems concerning pollutant sources as well
as adopting standards of water quality.9 Upon the basis of
these classifications the Department of Environmental Control
(department, hereinafter) is charged with promulgating rules
and regulations concerning pollution control standards.10
Before becoming effective these standards must be approved
by the council.11 The department is also vested with dis-
charge permit-issuance authority and this process requires
submission to it of plans, specifications and other data
relative to disposal systems prior to approval of such systems
and issuance of permits therefore.12 The department is also
primarily responsible for enforcement of pollution control
laws.13
The department has a planning function and is vested with the
duty to "develop comprehensive programs for the prevention,
control and abatement of new or existing pollution of the air,
waters and land of the state."lk
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The chief executive officer of the department is the Director
of Environmental Control, and is appointed by the Governor
from a list of names submitted by the council, with the advice
and consent of the legislature. The director is charged with
administering the affairs of the department and serves at the
pleasure of the Governor.15
Appeals may be taken from any final order or other final deter-
mination of the director, by any person who is or may be ad-
versely affected thereby, or by the Attorney General on
behalf of the State of Nebraska, to the district court of
Lancaster County.16
The department was granted the power to set up bureaus,
divisions, or sections of air pollution control and a
bureau, division, or section of water pollution control to
be administered by full-time salaried bureau, division or
section chiefs, and to delegate and assign to each such bureau,
division, or section and the officers and employees therein,
any duties or powers granted to the department. 7 The depart-
ment has exercised this power and has established three
divisions, one of which is the division of water pollution.18
The department has been designated as the state air pollution
and water pollution control agency for this state for all
purposes of the Federal Air Quality Act of 1967 and the Fed-
eral Water Pollution Control Act, as amended (33 United
States Code 466), and for the administration of all federal
and state grants and incentives for environmental protection,
and it is authorized to take all action necessary or appro-
priate to secure to this state the benefits of those acts.19
Local management of sewage treatment facilities is conducted
by cities and villages20 and by boards of trustees in
sanitary and improvement districts.21 Sanitary and improvement
districts may embrace any land within one or more counties
but shall not include any land within a municipal corporation
nor_any tract of twenty acres or more which is outside any
municipal corporation and is used primarily for industrial
purposes without the written consent of the owner of such
tract.22
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1.2 Schematic Diagram of Existing Agencies
NEBRASKA
Governor
Environmental
Control
Council
Department of
Water Resources
Department of Environmental
Control
State Health
Department
Division
of
Water
Pollution
Division
of
Solid Waste
Control
Division
of
Air Pollution
Control
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES , INCLUDING THEIR POWERS AND AUTHORITIES , AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND
SELECTED RELATED SECTIONS OF THE ACT .
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and
Existing Works as Required by Any Areawide Plan. [§208
(c) (2) (C) ].
Any city or village in Nebraska is authorized to own, con-
struct, equip, and operate, either within or without the
corporate limits of such municipality, a sewerage system,
including any storm sewer system or combination storm and
sanitary sewer system, and plant or plants for the treatment,
purification, and disposal, in a sanitary manner, of the liquid
and solid wastes, sewage, and night soil of such municipality
or to extend or improve any existing storm or sanitary sewer
system or combination storm and sanitary sewer system.23
Sanitary and improvement districts are vested with similar
powers and would be able to comply with this provision. 2tf
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c) (2)
The department of environmental control is specifically
authorized to accept and administer loans and grants from the
federal government and from other sources, public or private.25
None of the local agencies are specifically authorized to
accept such funds but without express provision to the contrary
they should be able to. One method that might be utilized is
for the department to accept such funds from the federal
government and thereafter channel them to the local agencies.
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208(c) (2) (E) ] .
All agencies possess the express statutory authority necessary
for compliance with this provision.26 In addition to the
charging provisions discussed infra, cities and villages may
assess a special levy upon benefited property up to two mills
on the dollar upon the assessed value of all taxable property
within such municipality.27
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2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b)(1)(A)].
Neither agency is governed by a provision which specifically
requires this but compliance would be permitted via the general
charging authority of each agency. Cities and villages are
authorized to establish "just and equitable" rates on charges
for use of such sewerage system by each person, firm or
corporation whose premises are served thereby.28 Likewise,
the board of trustees of sanitary and improvement districts
are authorized to establish "just and equitable" rates or
charges for: connections to and the use of their sewerage
systems by each person, firm or corporation whose premises
are served thereby.29
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [§ 204(b) (1) (B)] .
None of the local agencies have express statutory authority
which would assure compliance, or the possibility of compliance,
with this provision. However, through their general powers
of contract, their general charging powers30 and their powers
to establish rules and regulations31 they would possibly be
able to carry out this provision of the act.
2.4 Authority to Incur Short- and Long-term Indebtedness
[§208(c) (2) (F)] .
All management agencies are vested with broad bonding powers
and may take up to forty (40) years to re-pay such debts.32
The specific bonding powers of each agency are examined with
more particularity infra.
The only potential problem that could arise regarding com-
pliance with this provision is a special requirement imposed
upon sanitary and improvement districts wh'ereby the board of
trustees is required, before issuing and selling any bonds of
such district, to commence special proceedings, in and by
which the proceedings of the board and of the district providing
for and authorizing the issuance and sale of the bonds of
the district shall be judicially examined, approved and
confirmed, or disapproved and disaffirmed.33
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2.4.1 General Obligation Funding.
Cities and villages may issue general obligation bonds for any
purpose. The amount of such bonds shall not be included
in the maximum amount of bonds which any municipality is
authorized to issue and sell under its charter or any state
statutes.34 Before such issuance takes place a special election
must be held in which more than a majority of the electors
voting must vote in favor of such issuance.35
Sanitary and improvement districts may issue such bonds without
a vote, and such bonds may bear not more than six percent
interest.36 The amount of such bonds may not exceed 15
percent of the assessed valuation of the taxable property
in the district and the district is required to levy an annual
tax sufficient to pay the interest and principal of the bonds
as such interest and principal become due and payable.37
2.4.2 Special Funds and Revenue Funding.
All agencies involved are vested with the express statutory
authority needed for compliance with this provision.38
Such bonds are not to be included in computing the maximum
amount of bonds which the said municipality is authorized
to issue under its charter or any Nebraska statute.39 When
cities and villages issue such bonds they are required to
assess sufficient charges so as to create a sinking fund which
will assure payment of principal and interest when due.40 No
vote is required for issuance of revenue bonds.41
2.4.3 Other Methods of Financing.
The only other method of financing available to any of the
agencies is the authority of improvement and sanitary districts
to issue warrants for the purpose of making partial payments
as construction progresses.42 Such warrants may be paid out
of the proceeds of bonds issued thereafter or from a sinking
fund created by special assessments levied upon property
especially benefited by such work or improvement.43
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208(c)
(2) (G)].
Cities and villages have the authority to extend treatment
service beyond their corporate limits, "under the same condi-
tions as nearly as may be as within such corporate limits and to
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charge such users of its services 'reasonable and fair1 rates
consistent with those charged within such corporate limits
and consistent with the expense of extending and maintaining
the same for the users thereof outside such corporate limits
at a fair return to the owner thereof.""*** Thus, if one
community extends its services to another it appears that
compliance would be assured.
Sanitary and improvement districts lack express statutory
authority in this regard, but compliance could probably be
attained via their general contracting powers45 in combination
with the authority to charge "just and equitable" rates.1*6
2.6 Authority to Refuse to Receive Any Wastes from Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§ 208 (c) (2) (H)].
All agencies involved have general rule and regulation making
authority,147 but such authority probably does not include
the power to impose such a drastic sanction as this. However,
an agency could refuse to treat certain types of sewage
which would have deleterious effects upon the system itself
through such rule making authority-^8 It might also be
implied from such rule making authority that the agency
could comply with this required authority.
2.6.1 Authority to Deny New or Additional "Hook-ups"
(Moratorium Effect).
Agencies are not vested with specific legislative authority
in this respect but could, in effect, comply with this
provision via their general powers of contract. The depart-
ment could certainly exercise the necessary authority to comply
with this provision through its permit-granting powers (i.e.,
by withholding a permit). 9
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply with the
Areawide Plan.
The only authority discovered in this regard is vested in
sanitary and improvement districts. They may, through their
boards of trustees, make contracts or agreements whereby a
person or corporation, public or private, furnishing water
to the inhabitants of the district, shall turn off and refuse
to sell water to any such water user who is delinquent in
the payment of any sewer rental or service charges over
forty-five days.50
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2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(O (2) (I) .
All agencies involved possess the requisite statutory authority
needed to comply with this provision of the act.51
3.0 SUMMARY
Local management agencies in Nebraska have, for the most part,
the sufficient statutory authority needed to assure compliance
with the act. The few deficiencies noted are discussed infra,
in Section 3.1.
3.1 Deficiencies
The local agencies lack the express statutory authority to
accept grants from any source and legislation would be
helpful to remedy this.
Express legislation could be passed to assure compliance with
Sections 2.3.1 and 2.3.2 regarding charging powers, but
such powers may reasonably be implied from current law.
Legislation should be passed to assure compliance -- by
sanitary and improvement districts -- with the requirements
of Section 2.5.
4.0 BIBLIOGRAPHY
1. Comment, Nebraska Sanitary and Improvement District
Legislation, 5 Creighton L. Rev. 269(1970).
FOOTNOTES
1. Revised Statutes of Nebraska, §8-1501 et seq. (Cum.
Supp. 1972). (Except where noted, references are to the
1972 Cum. Supp.)
2. Nebraska Rev'. Stat. §81-1501.
3. Nebraska Rev. Stat. §81-1502(6).
4. Nebraska Rev. Stat. §81-1503(1).
5. Nebraska Rev. Stat. §§81-1503(7).
6. Nebraska Rev. Stat. §81-1503(6).
7. Id.
8. Nebraska Rev. Stat. §81-1503(1), (2).
9. Nebraska Rev. Stat. §81-1505(1).
10. Nebraska Rev. Stat. §81-1504(7), (8), (9). (Legal
Counsel for the Department of Environmental Control
- 420 -
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11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21,
22,
23,
24,
25,
26,
27,
28,
29,
30,
31,
32,
notes that 1973 amendments to the Environmental Protection
Act provide that the department's function is administra-
tive only and that it does not promulgate rules and
regulations.)
Nebraska Rev. Stat. §81-1505(4).
Nebraska Rev. Stat. §§ 81-1504 (12) (13) (22) , 81-1506.
Nebraska Rev. Stat. §81-1504(24).
Nebraska Rev. Stat. §81-1504(2).
Nebraska Rev. Stat. §81-1503(7).
Nebraska Rev. Stat. §81-1509.
Nebraska Rev. Stat. §81-1504(16).
See schematic diagram in section 1.2, infra.
Stat. §81-1503(11).
schematic
Nebraska Rev.
Nebraska Rev.
Nebraska Rev.
Nebraska Rev.
Nebraska Rev.
Nebraska Rev.
Nebraska Rev.
§ 18-501 et seer.
§ 31-701 et seq.
§31-702.
§18-501. (1971)
§31-708.
§81-1504(4).
§§18-501(3) (4)
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Cities and villages,
18-509, and 18-512;
§§31-711.01, 31-711.
Nebraska Rev- Stat.
Nebraska Rev- Stat.
Nebraska Rev. Stat.
See note 26, gupra.
Cities and villages, §18-503
districts, §31-722. (1971)
Cities and villaaes,
(1971)
18-508,
districts,
18-503,
sanitary and improvement
02, and 31-722(1971).
§§18-501(3)(4), 18-512. (1971)
§18-503, see also §18-508. (1971)
§31-722. (1971)
sanitary and improvement
§§18-502, 18-506; sanitary and
improvement districts, §§31-709, 31-717, 31-724. (1971)
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
Nebraska Rev. Stat. §
Nebraska Rev. Stat. §
Nebraska Rev. Stat. §
Nebraska Rev. Stat. §
Id.
Cities and villages,
improvement districts
Id.
Nebraska Rev. Stat. §
Nebraska Rev. Stat. §
Nebraska Rev. Stat. §
Id.
Nebraska Rev. Stat. §
Nebraska Rev- Stat. §
Nebraska Rev. Stat. §
note 29 , supra.
31-717 et seq. (1971)
18-506. (1971)
18-506.01. (1971)
31-709. (1971)
§§18-502, 18-504; sanitary and
, §31-709. (1971)
18-504(2) (3) . (1971)
18-506.01. (1971)
31-709.01. (1971)
18-508. (1971)
31-709. (1971)
31-722(1971). See test accompanying
47. Cities and villages, §18-503; sanitary and improvement
districts, §31-722. (1971)
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48. Id.
49. See note 12, supra.
50. Nebraska Rev. Stat. §31-722. (1971)
51. Cities and villages, §18-503; sanitary and improvement
districts, §31-722. (1971)
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REGION VIII
-------
PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
COLORADO REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
The State Water Pollution Control Commission ("Commission")
is responsible for regulating and enforcing Colorado's water
pollution control laws and is the state water pollution control
agency for all purposes of the Federal Water Pollution Control
Act.l The Commission is given a legislative directive "to
provide that no wastes be discharged into any waters of the
state without first being given the degree of treatment neces-
sary to protect the beneficial uses of such water"2 but waters
in sewerage systems and treatment works are specifically ex-
cluded. 3
The Commission is given wide latitude to discover1* and regulate
water quality and pollutant discharge.5 However, enforcement
of most water quality and waste discharge standards are obtained
through court enforced injunctions after an administrative
hearing and not by a permit system.6 The Commission does regu-
late use of septic tanks7 and disposal of radioactive, "toxic,"
or potentially explosive materials through a permit system.8
The Commission must approve the site for any municipal sewage
treatment works, giving consideration to the "long-range com-
prehensive planning for the area."9 The Commission also ad-
ministers any state funds appropriated for use in conjunction
with federal funds granted under the Federal Water Pollution
Control Act to be used in the construction of sewage treatment
works.10 The funds are administered through contracts with a
"municipality.":!
In Colorado there are four potential management agencies: (1)
Special Improvement Districts (hereinafter called special dis-
tricts) ; (2) Metropolitan Sanitation Districts (hereinafter
called metropolitan districts); (3) Sanitation Districts; (4)
Metropolitan Sewage Disposal Districts (hereinafter called MSDDs)
Special districts generally mean geographical divisions within
a city or incorporated town but may include an entire municipal
area. 2 One or more noncontiguous parts of a municipality may
be included in such a district.13 In addition, contiguous
cities and towns may engage in cooperative sewage treatment.1"
Special districts are created by ordinance.15
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A metropolitan district may be entirely within or entirely
without, or partly within and partly without, one or more
municipalities16 and may consist of noncontiguous areas; but,
parcels of land larger than 20 acres with an assessed valu-
ation of more than $25,000 may not be included in a district
without the owner's consent. A metropolitan district may
extend its sewer lines to a source of supply or an outlet with-
out the district.l8
A sanitation district may be entirely within or entirely with-
out, or partly within and partly without one or more municipal-
ities or counties and the district may consist of noncontiguous
tracts of land.l9 A sanitation district may also extend its
sewer lines to an appropriate outlet outside the district.20
A tract of property of the same size and value described above
for a metropolitan district may be excluded if the owner does
not consent to its inclusion and property within any home rule
municipal corporation may be excluded if that municipality so
desires.21 Both a metropolitan and sanitation district are
formed by a majority vote of the electorate of the proposed dis-
trict after either 10% or 100 taxpayers (whichever is smaller)
of the proposed district submit a petition.22
A MSDD may be composed of territory included within the corpo-
rate boundaries of any two or more municipalities which need
not be contiguous and need not be located in the same county.23
Such districts are created by ordinances of municipalities within
the district.24 A MSDD may receive wastes from outside the
district.2 5
It should be pointed out here and be remembered throughout the
report that the definition of "municipality" for purposes of
a MSDD is broad enough to include any or all of the other three
management agencies. Therefore, a MSDD may contain not only
those powers specifically granted a MSDD but also the powers
granted another management agency within the boundaries of a
MSDD. The definition of "municipality" is also important to
remember when discussing the powers a MSDD may have over the
"municipalities" within a MSDD.
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1.2 Schematic Diagram of Existing Agencies
Colorado Water Pollution Control Administration
Department of
Public Health
State Water Pollution
Control Commission
Division of
Administration
State Comptroller,
Attorney General
(Approval of
Construction
Contracts Required)
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208 (c) (2) (C)].
Any city or incorporated town may establish and maintain sewer
systems and sewage disposal plants2^ and improvements in special
districts may consist of the same,
2 8
Both metropolitan and sanitation districts are given this author-
ity.29
A MSDD is to be organized for the purpose of "acquiring, by con-
struction or otherwise, owning, holding and operating a sewage
disposal system."30 A MSDD may also contract with a municipality
or person concerning "planning, construction, lease or other ac-
quisition, operation, maintenance . . . and the financing of
any project."3l
The only restriction on the above powers of all the management
agencies is the control of site selection of municipal sewage
treatment works exercised by the Commission (see paragraph 1.1).
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2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
[§208(c) (2)
As mentioned in paragraph 1.1 the Commission administers state
funds through contracts with "municipalities."32 A recent
amendment specifically provides that "municipalities" "shall
apply for" and be "eligible" for federal "construction" grants.33
"Construction" and "eligible project" are broadly defined.34
Prior to this recent amendment special districts had no author-
ity to receive grants.
Metropolitan and sanitation districts have the power to contract
with the United States35 and metropolitan districts could con-
tract with the state.36 The recent amendment has made their
ability to accept grants much clearer.
A MSDD is specifically authorized to receive federal funds37
and may "accept grants and contributions from any public body
or other person in connection therewith."38
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208(c) (2) (E) ] .
Special districts have no authority to assess waste treatment
charges. Cities or towns may assess the cost of construction
of sewers, sewage disposal works and renewal or extensions
thereof wholly, or in part, upon the property "especially bene-
fited" by such improvements.3 The costs of sanitary sewers
may be assessed on all real estate in the district as the area
of each piece of real estate is to the area of the whole dis-
trict."0
Metropolitan districts have the power to fix rates and charges
for "services furnished" by the district.1*1 However, revenues
from such charges are pledged to pay the indebtedness of the
district1*2 and it is difficult to imply that such a charging
system could accurately reflect the costs of treatment. Metro-
politan districts also have the power to level ad valorem taxes
against all property within the district and such taxes are
used to pay both the districts' indebtedness and the operating
expenses of a sewage system.1*3 This is also an inadequate
charging system.
Sanitation districts may assess charges for making facilities
available.1*1* While such rates must be "reasonable" they are
to be assessed "solely for the purpose of paying principal
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and interest on any outstanding indebtedness of the district."1*5
Sanitation districts may also levy taxes to pay operating ex-
penses but such taxes are property taxes. "t6 A sanitation dis-
trict may levy taxes to create a sinking fund.1*7 This charging
system does not meet the requirements of the Act.
MSDD and municipalities within a MSDD may assess waste treat-
ment charges clearly based upon the property criteria. "*8 A
MSDD itself may levy general ad valorem taxes on all taxable
property within the district, but this may be done only during
the first five years of the district's existence and only to
the extent of 3/4 mill.1*9 Municipalities within the district
may assess annual general ad valorem taxes sufficient to pay
the service rates imposed by the MSDD.50
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b)(1)(A)].
As noted in paragraph 2.3 special districts have no authority
to assess waste treatment charges and may charge for construc-
tion and maintenance only on an "area proportion" basis.51
However, contiguous municipalities may engage in cooperative
ventures concerning sewage treatment and "common construction
or use shall be upon such terms as regards the apportionment
of cost as may be agreed upon" by such municipalities.52 There-
fore, it may be assumed that at least as between municipalities
of a special district this requirement is met.
In metropolitan and sanitation districts, general ad valorem
taxes are used to pay "the costs of constructing, operating
and maintaining the works and equipment of the district."5
This is not sufficient to meet the requirements of the Act.
MSDDs or municipalities within a MSDD may use a charging system
to meet these requirements54 and may also create a sinking fund
out of such charges.55 Charges may be based upon:
. . . any other factors determining the type, class
and amount or use or service of the sewage disposal
or sewer system; or on any combination of any factors;
and may give weight to the characteristics of the
sewage and other wastes and any other special matter
affecting the cost of treatment and disposal thereof . . . . 5 6
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2.3.2 Full Recovery Will Be Had from the Industrial Users
of the Waste Treatment Works of the Federal Por-
tion of the Construction Costs of Treatment Works
Reasonably Attributable to Treatment of Such Indus-
trial Wastes. [§20-4(b) (1) (B) ] .
Special districts and cities and incorporated towns may assess
the costs of construction wholly on "property especially bene-
fited,"57 but this would not be an adequate assessment system.
Metropolitan and sanitation districts use general ad valorem
taxes to recover the construction costs, and this would be in-
adequate .
Therefore, only MSDDs and municipalities within a MSDD may have
such a power implicit in their broad powers for assessing waste
treatment charges. (See paragraph 2.3.1 above).
2.4 Authority to Incur Short- and Long-Term Indebtedness [§208
(c) (2) (F)].
As will be noted below, all management agencies have some form
of bonding power.
2.4.1 General Obligation Funding.
Cities or towns may contract indebtedness either by borrowing
or by issuing negotiable interest bearing bonds of the city
or town (subject to constitutional debt limitations). The
debt can run not less than ten or more than fifteen years,
and, though created by ordinance, must first be approved by
the electorate.58
Metropolitan and sanitation districts may "borrow money and incur
indebtedness and evidence the same by certificates, notes, or
debentures" and may issue bonds.59 However, all bonds or obli-
gations issued by a metropolitan district "will be general obli-
gation bonds on the entire district."60 It should be noted here
that in metropolitan and sanitation districts service charges
as well as general ad valorem taxes are employed to pay off the
indebtedness.6 J
Metropolitan and sanitation districts may issue negotiable cou-
pon bond.s of the district with a maturity of not less than 3
years nor more than twenty. Any indebtedness (including a con-
tract with the United States government) which exceeds $5000
or 1% of the assessed property valuation within the district
(whichever is the larger amount) requires electorate approval.62
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An MSDD may borrow money to defray the cost of any project and
issue the following securities of any project and issue the
following securities to evidence such borrowing: Debentures,
warrants, bonds, interim receipts, temporary certificates,
temporary bonds and notes.63 Any of these obligations may be
secured through either general or special obligations and the
district may pledge its full faith and credit. However, the
issuance of bonds and the net effective interest rate of bonds
must first be submitted to the electorate of.the district and
maturity may not exceed 40 years.65
2.4.2 Special Funds-and Revenue Funding.
A special district may issue special assessment bonds to be
funded and repaid from assessments on property "specially bene-
fited."66 Maturity is to last a sufficient number of years
to cover the period of payment of the special assessment.
As noted in paragraph 2.4.1, bonds issued by a metropolitan or
sanitation district are a hybrid general-special funding creation
since revenues from service charges are pledged to paying off
.a district's indebtedness.
Also noted in paragraph 2.4.1, a MSDD may choose to fund its
variety of obligations through special or revenue funding.
These will be discussed in paragraph 2.4.3 below.
2.4.3 Other Methods of Financing.
As noted in paragraph 1.1, the State Water Pollution Control
Commission may contract with "municipalities" to provide state
funds for construction of sewage treatment works.
Beyond this, the only management agency with alternate methods
of financing is a MSDD. Among the choices available are:
1. Debentures these are issued in anticipation of taxes
or revenues or both when borrowing money. No electorate
approval is required.6 7
2. Warrants these are issued to defray any expenses of the
district. No electorate approval is required.68 However,
both debentures and warrants may not exceed two years un-
less approved by the electorate or used in supplementation
of voter-approved long-term financing.69
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3. Interim receipts, temporary certificates and temporary
bonds these are issued pending preparation of defini-
tive bonds and exchangeable for them upon preparation.70
4. A MSDD may issue notes and pledge bonds approved by the
electorate as collateral security. Notes must mature within
2 years after the project for which the bonds were issued
is completed. 7 l
5. Ad valorem taxes see paragraph 2.3.
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
As noted in 2.3.1 contiguous communities cooperating in a spe-
cial district may allocate costs among themselves.
Metropolitan districts charge for services provided by a sewage
system through a property tax, but "shall have the right to fix
different rates of levy for tax purposes against all of the
taxable property within the several areas of the district ac-
cording to the services furnished."72 Thus, metropolitan dis-
tricts may have some implied potential for meeting this require-
ment, but it would be achieved through the cumbersome method
of a tax levy.
MSDDs should have little problem meeting this requirement for
a MSDD is is given the power to fix charges to municipalities
within the district for services furnished7 3 and such charges
must be "practicable and equitable."71*
2.6 Authority to Refuse to Receive Any Wastes from Any Munic-
ipality or Subdivision Thereof, Which Does Not Comply
with Any Provisions of an Approved Plan Under §202 Ap-
plicable to Such Area. [§208(c) (2) (H) ] .
No management agency is expressly granted the power to refuse
wastes for failure to comply with an areawide plan. Metro-
politan and sanitation districts may cut off service for failure
to pay charges, and this includes service to municipalities.75
In addition, metropolitan and sanitation districts, MSDDs and
municipalities within an MSDD, may prescribe and enforce "rea-
sonable rules and regulations . . . for . . . the disconnection
from the sewer system of the public body or other sanitation
or sewer facilities thereof."76 This may imply a refusal power.
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2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
All management agencies have authority to compel "hook-ups."77
A metropolitan district may divide the district into areas
according to the facilities to be furnished, but if the dis-
trict "finds it infeasible, impracticable or undesirable for
the good of the entire district to extend . . . sewer lines
... to any part of the district ..." the district may desig-
nate such areas as not to be served with facilities.78 No
"area" shall be less than 10 acres.
Municipalities which wish to be included within a MSDD may sub-
mit a request, but the MSDD must find that the new municipality
may "feasibly be served by the facilities of the district."79
The MSDD may set "terms and conditions" upon such inclusion.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply with the
Areawide Plan.
There are no express statutory sanctions for failure to comply
with an areawide plan.
An MSDD, however, may enforce the rates and charges made to
municipalities within the district by a writ of mandamus to
compel a municipality "without limitation as to rate or amount"
ad valorem taxes on all taxable property within the munici-
pality and delinquency charges may be assessed.80
2.7 Authority to Accept for Treatment Industrial Wastes. [§208
(c) (2) (I)] .
Special districts are given neither express nor implied author-
ity to accept or reject industrial wastes.
Metropolitan and sanitation districts have no express authority
to accept or reject industrial wastes, but they may enter into
"contracts and agreements affecting the affairs of the district."81
This may be broad enough to include an authority to set pretreat-
ment standards for acceptance of industrial wastes.
The definition of "sewage disposal system" specifically includes
facilities for the "interception, transportation, treatment,
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purification or disposal of ... industrial wastes" in the pro-
visions governing MSDDs.82 In addition, an MSDD may prescribe
and enforce reasonable rules and regulations "for the avail-
ability of service from, the connection with, the use of ...
a sewage disposal system."83 This meets the requirements of
the Act.
3. 0 SUMMARY
Special districts, metropolitan districts and sanitation dis-
tricts clearly fail to meet some of the major requirements of
the Act. On the other hand, MSDDs either expressly or impliedly
meet all the requirements of the Act and are unquestionably the
best potential areawide management agency.
3.1 Deficiencies
As noted in the foregoing paragraphs, special districts, metro-
politan districts and sanitation districts would require a
major overhaul to meet the requirements of the Act, but their
most obvious deficiency is lack of an adequate waste treatment
charging system.
While MSDDs qualify in all requirements of the Act, either ex-
pressly or impliedly, it would be best to statutorily change
implied powers to express powers. Examples of where this may
be done is in the setting of pre-treatment standards for indus-
trial wastes and recovery of the federally funded portion of
construction costs from industrial users. MSDDs should also
have clearer authority and sanctions where there is a failure
to comply with an areawide plan.
4.0 BIBLIOGRAPHY
1. Colorado Legislative Council, Water Pollution in Colorado:
Report to the Colorado General Assembly (1966) .
2. Morrisson, Frank H., State and Local Regulation of Water
Pollution, Natural Resources Lawyer, Vol. Ill, p. 47 (1970).
3. Water Pollution Control Commission (Colorado Department of
Health), Water Quality Standards and Stream Classification
(1971) .
4. Water Pollution Control Commission (Colorado Department of
Health), Water Pollution Control Progress Report, 1966-1971
(1971).
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FOOTNOTES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
§66-28-3(6) (Perm. Cum. Supp. 1967)
§66-28-1 (Perm, Cum. Supp. 1967).
§66-28-2(g) (Perm. Cum. Supp. 1967)
§66-28-6 (Perm. Cum. Supp. 1967).
§66-28-5 (Perm. Cum. Supp. 1967).
§66-28-10 (Perm. Cum. Supp. 1967).
§66-28-8(5) (Perm. Cum. Supp. 1973)
§66-28-9 (Perm. Cum. Supp. 1973)
§66-28-13 (Perm. Cum. Supp
§66-28-23 (Perm. Cum. Supp
§66-28-23 (Perm. Cum. Supp
ipality" means any county, sanitation district, water and
sanitation district, metropolitan sewage disposal district
service authority, city and county, city, town, Indian tri
or authorized Indian tribal organization, or any two or
more of them which are acting jointly in connection with
an eligible project. Colo. Rev. Stat. §66-28-22(5) (Perm.
Cum. Supp. 1973).
Rev. Stat. §89-2-5 (1963).
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Rev. Stat,
Rev. Stat,
Rev. Stat.
Rev. Stat.
Rev. Stat,
Rev. Stat,
Rev. Stat,
Rev. Stat.
Rev. Stat.
Rev. Stat.
Colo. Rev. Stat
1967)
1973)
1973)
" [M]unic-
Colo.
Id.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Rev. Stat.
Rev. Stat,
Rev. Stat.
Rev- Stat.
Rev. Stat.
Rev. Stat.
Rev. Stat.
Rev. Stat,
§89-2-10 (1963).
§89-2-1 (1963).
§89-3-3(1) (Perm.
§89-3-3(3) (Perm.
§89-3-3(4) (Perm.
§89-5-2(3) (1963)
§89-5-2(2) (1963)
§89-5-7(2) (1963)
Cum.
Cum.
Cum.
Supp.
Supp,
Supp,
1965)
1965)
1965)
\^,\^/ _1_ W * J.\t-. V kJ < ti I* *J \J ^ w* I \ £* I \ ^ ^f \J -^ / ğ
Metropolitan Districts, Colo. Rev. Stat. §89-3-5 (P
Supp. 1971); Sanitation Districts, Colo. Rev. Stat.
(Perm. Cum. Supp. 1971).
(Perm. Cum.
§89-5-4
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Cum. Supp.
Rev- Stat.
Stat.
Stat.
Stat.
Stat.
Rev.
Rev.
Rev.
Rev.
Rev.
1971).
§89-15-3(1) (1963)
§89-15-4 (1963).
§89-15-12 (1963) .
§89-15-2(4) (1963) .
§89-2-9 (1963).
Colo. Rev. Stat. §89-2-2 (1963) .
Metropolitan Districts, §§89-3-2(2), 89-3-14(8) (1963);
Sanitation Districts, §§89-5-2(2), 89-5-13(4) (1963).
Colo. Rev. Stat. §89-15-3(1) (1963); see also §89-15-6(12)
§89-15-6-20 (1963).
§66-28-23(3) (Perm. Cum. Supp. 1973).
§66-28-22 (Perm. Cum. Supp. 1973).
Colo. Rev. Stat
See note 11.
Colo. Rev. Stat
Colo. Rev. Stat
(1963)
- 435 -
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35. Metropolitan Districts, Colo. Rev. Stat. §89-3-14(4) (1963);
Sanitation Districts, Colo. Rev. Stat. §89-5-13(4) (1963).
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
§89-3-14(4) (1963).
§89-15-16(18) (1963).
§89-15-16 (19) (1963) .
§89-2-1 (1963) .
§89-2-12 (1963).
§89-3-14(13) (1963).
§89-3-19 (1963).
§89-3-19 (1963).
§89-5-13 (12) (a) (Perm. Cum. Supp. 1971)
§89-5-13(12) (c) (Perm. Cum. Supp. 1971)
§89-5-15 (1963) .
§89-5-19 (1963) .
§89-15-21 (1963) .
§89-15-6(9) (1963).
§89-15-6(14) (1963).
§89-2-1 (1963) .
§89-2-10 (1963).
Metropolitan Districts, Colo. Rev. Stat. §89-3-17 (1963)
Sanitation
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70-
71.
72.
73.
74.
75.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Colo.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Rev.
Districts, Colo. Rev. Stat. §89-5-15 (1963).
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
Stat.
§89-15-21 (b) (e) (1963) .
§89-15-21 (d) (1963) .
§89-15-21(2) (a) (1963) .
§89-2-1 (1963) .
§89-2-29 (Perm. Cum. Supp. 1971).
§89-3-14(5) (1963).
§89-3-17 (1963) .
§89-3-19 (1963).
§89-5-24 (Perm. Cum. Supp. 1971) .
§89-15-22 (1963).
§89-15-23 (1963).
§89-15-22(5) (Perm. Cum. Supp. 1971).
§89-2-30 (1963) .
§89-15-22(2) (1963) .
§89-15-22(3) (1963).
§89-15-22(4) (1963).
§89-15-22(6) (1963).
§89-15-34 (1963) .
§89-3-20 (1963).
§89-15-6(13) (1963).
§89-15-21 (1963) .
Metropolitan Districts, Colo. Rev. Stat. §89-3-19 (1963)
Sanitation Districts, Colo. Rev. Stat. §89-5-13(12) (1963)
76. Metropolitan District, Colo. Rev. Stat. §89-3-19 (1963);
Sanitation District, Colo. Rev. Stat. §89-5-13(12) (1963);
MSDD, Colo. Rev. Stat. §89-15-20(8) (1963).
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77. Special Districts, Colo. Rev. Stat. ^8-9-2-10 (1963);
Metropolitan Districts, Colo. Rev. Stat. §89-3-15 (1963);
Sanitation Districts, Colo. Rev. Stat. §89-5-13(12) (1963);
MSDD; Colo. Rev. Stat. §89-15-36(3) (1963).
78. Colo. Rev. Stat. §89-3-20 (1963).
Colo. Rev. Stat. §89-15-9 (1963).
Colo. Rev. Stat. §89-15-6(14) (1963).
Metropolitan Districts, Colo. Rev. Stat. §89-3-14(4) (1963);
Sanitation Districts, Colo. Rev. Stat. §89-5-13(12) (1963).
Colo. Rev. Stat. §89-15-2(11) (1963).
Colo. Rev. Stat. §89-15-20(8) (1963).
79
80
81
82.
83.
CAVEAT: This report is based on Colorado laws, as amended,
through July, 1972. A letter from Alfred L. Capra, General
Counsel of the Colorado Department of Health, dated April 16,
1973, indicates that major revisions of Colorado laws are under-
way.
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
MONTANA REPORT
(1971)
1.0 OVERVIEW
1.1 Description of Existing Agencies
The Montana Department of Health is the administering agency
for the state's water pollution control laws.1
Some of the duties and powers of the department are the fol-
lowing:
(a) to issue or deny discharge permits2 which are re-
quired before any sewage or industrial wastes are
discharged into state waters;3
(b) to issue orders to abate pollution;1*
(c) to enter upon private or public property to investi-
gate conditions relating to pollution of state
waters;5
(d) to accept grants from the federal government;6 and
(e) set water quality standards.7
There are three entities which may render waste treatment ser-
vices (i.e., management agencies): cities and towns (herein-
after referred to as "municipalities"),8 metropolitan sewer
districts (hereinafter referred to as "MSD's") and county
sewer districts (hereinafter referred to as "CSD's").10
Before municipalities may construct a sewer system the approv-
al of a majority of taxpayers voting on the issue must be ob-
tained.11
MSD's are created by resolution of the board of county com-
missioners and by a concurring resolution of the council of
the city or town situated with the boundary of a MSD.12 With-
out the council's concurring resolution, the board of county
commissioners has no authority to proceed further with the
creation of the district.13
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Upon the petition of ten percent of the registered voters re-
siding within the proposed CSD the board of county commis-
sioners may create a CSD.14 A CSD may lie within one or more
counties and may include the whole or part of a municipality.15
1.2 Schematic Diagram of Existing Agencies
Governor
State
Board
of Health
Department
of
Health
and Environmental
Sciences
Attorney Gen-
eral (as legal
representative
State Water
Pollution Advisory
Council
Local
Departments of
Health
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES,. INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208 (c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
As was noted in paragraph 1.1, three treatment management agen-
cies will be considered throughout this report: munici-
palities, MSD's and CSD's.
2.1
Authority Directly or by'Contract, to Design and Con-
struct New Works and to Operate and Maintain New and Ex-
isting Works as Required By J>ny Areawide Plan. [§208 (c)
(2) (C)].
- 440 -
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Municipalities, MSB's and CSD's are all authorized to con-
struct, operate and maintain treatment plants.16
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, For Waste Treatment Management Pur-
poses. 15208 (c) (2) (D) ] .
Only MSB's and CSB's are specifically authorized to receive
grants and funds for waste treatment management purposes.17
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [§208(c)(2)(E)].
As will be noted below, all three management agencies have
charging authority.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)] .
Municipalities may charge on any equitable basis for the
treatment services it renders and such charges must be suf-
ficient to pay for operation and maintenance costs.18 Such
rates and charges may be "in proportion to the services and
benefits rendered . . . and may take into consideration the
quantity of sewage produced and its concentration and water
pollution qualities in general."19
MSB's can clear 1-y comply with the requirements of this para-
graph since the charging basis may also take into consider-
ation "the quantity of sewage produced and its concentration
and water pollution qualities in general," and since the
charges must be sufficient to cover operation and maintenance
costs.20
CSD's may charge to the amount necessary to cover, among other
things, operation and mainteance costs. There is, however,
no express provision that would require that each user pay its
proportionate share of costs of treatment, but this may be im-
plied from the general power to charge.
- 441 -
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2.3.2 Full Recovery Will Be Had From the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works Reason-
ably Attributable to Treatment of Such Industrial
Wastes. I§204(b) (1) (B) ] .
Municipalities and MSD's may assess a tax upon all property in
the municipality or district in order to defray construction
costs.22 However, the tax is based on the extent of every
user's property instead of the costs "of the treatment works"
reasonably attributable to treatment of such industrial wastes.
CSD's are not specifically authorized to recoup construction
costs.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)] .
As will be noted below, all three agencies under consideration
have bonding authority.
2.4.1 General Obligation Funding.
Although MSB's are not specifically authorized to issue bonds,
one provision-does mention "MSD bonds."23 It must be assumed
that the "bonds" mentioned are general obligation bonds which
the county commissioners (the governing body of a MSD) are au-
thorized to issue.24 Such bonds shall not cause county indebt-
edness to exceed two and one-half percent of the value of tax-
able property therein25 and must expire no later than 20 years
after their issuance.26
Since the governing body of a CSD is also the county commis-
sioners, CSD's should also be able to issue general obligation
bonds.
Municipalities have no express authority to issue general obli-
gation bonds for the purpose of financing sewer system con-
struction.
- 442 -
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2.4.2 Special Funds and Revenue Funding.
The governing body of a municipality may be resolution issue
revenue bonds having a maximum maturity period of forty years.27
No prior authorization by voters is required.
CSD's may also issue revenue bonds having a maximum maturity
period of forty years.28 However, a two-thirds majority of
votes cast by taxpayers residing within the district must
first authorize such bonded indebtedness.29
MSD's are not authorized to issue revenue bonds.
2.4.3 Other Methods of Financing.
As was noted in paragraph 2.3.2, municipalities and MSD's may
also assess taxes in order to raise revenues. In addition
CSD's may assess taxes if the revenues of the district are
inadequate to pay interest or principal on any bonded debt as
it becomes due.3°
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c) (2) (G)].
There are no specific provisions which absolutely insure that
each community will pay its proportionate share of the costs.
As was noted in paragraph 2.3.1, however, municipalities,
MSD's and, possibly, CSD's can assure that each individual
user will pay his proportionate share and this, in turn, may
satisfy this paragraph's requirements.
2.6 Authority to Refuse to Receive Any Wastes From Any Munic-
ipality or Subdivision Thereof, Which Does Not Comply
With Any Provisions of an Approved Plan Under §202 Appli-
cable to Such Area. [§208(c)(2)(H)].
None of the agencies under consideration may refuse to receive
a noncomplying municipality's waste.
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2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
None of the treatment agencies have "moratorium powers." How-
ever, the Montana Department of Health can deny a permit to
discharge waste where its rules and regulations are being vio-
lated.3 As was noted earlier, part of the regulations consist
of water quality standards.32 Thus, this permit-denying power
may give the department substantial "moratorium" powers.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the'
Areawide Plan.
None of the treatment agencies are specifically authorized to
impose penalties and surcharges on noncomplying municipalities.
2.7 Authority to Accept For Treatment Industrial Wastes.
[§208(c) (2) (I)] .
Although there is no specific provision which would allow any
of the treatment agencies to receive industrial waste, the
statutes are phrased broadly enough so as not to exclude in-
dustrial users.
On the other hand, none of the treatment agencies are granted
express authority to require industrial pretreatment of waste.
The permit issuing authority of the Department of Health, how-
ever, should again insure that the wastes meet a certain stand-
ard before they can be discharged into the sewer system. Pre-
treatment might also be authorized under the general power of
all local agencies to maintain their facilities, at least where
untreated wastes would cause harm to the system.
The Department of Health is the only water pollution control
agency which can conduct investigations on public or private
property.33 However, any confidential material acquired by
the department may not be disclosed to the public, and fines
are imposed on those making such disclosures.35
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3.0 SUMMARY
Under the present statutory set-up in Montana, the following
inadequacies exist:
(1) municipalities are not specifically authorized to
receive grants for waste treatment purposes;
(2) CSD's may not recoup non-bonded construction costs
and compliance with paragraph 2.3.2 is doubtful
because of an improper charging (taxing) basis;
(3) none of the treatment agencies have the power to
refuse municipal waste, nor do they have lesser
powers to coerce a municipality's compliance;
(4) there is no express authority to require pretreat-
ment by industrial users.
4.0 BIBLIOGRAPHY
Montana State Water Pollution Control Council Policy State-
ments (furnished by the State Department of Health and Environ-
mental Sciences, undated).
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
FOOTNOTES
Montana Rev. Code §69-4801 e_t seq.
Montana Rev. Code § 69-4809.1(a) .
Montana Rev. Code §69-4806.
Code §69-4809.1(2) (b) .
Code §69-4809.1(2) (a) .
Code §69-4808.2 (2) (a) .
Code §69-4808.2(1)(6).
Code §11-2217 e_t seq.
Code §16-4401 et. seq.
Code §16-4501 et. seq.
Montana Rev. Code §11-2217.
Montana Rev. Code §16-4402.
Montana Rev. Code §16-4402.
Montana Rev. Code §§16-4503, -4505.
Montana Rev. Code §16-4502.
Montana Rev. Code §§11-2217, 16-4407, -4514(5), respec-
tively. (Although MSB's are not specifically authorized
to carry oui these management functions, §16-4407 provides
that MSD' s n.j.y charge for the construction and operation
of facilities they provide, thereby implying the required
authorization).
Montana Rev
Montana Rev
Montana Rev
Montana Rev
Montana Rev
Montana Rev
Montana Rev
- 445 -
-------
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
Montana Rev- Code §§16-4412, -4514(8), respectively.
Montana Rev- Code §11-2219.
Montana Rev. Code §11-2217.
Montana Rev. Code §16-4416.
Montana Rev. Code §16-4526.
Code §§11-2222, 16-4408.
Code §16-4417.
Code §16-2008(b).
Code §16-2010.
Code §16-2011.
Code §11-2218(1).
Code §16-4517.
Code §16-4522.
Montana Rev. Code §16-4527.
Montana Rev. Code §69-4806.
See note 7 and text accompanying, supra.
See note 5 and text accompanying, supra.
Montana Rev. Code §69-4822.
Montana Rev. Code §69-4823.
Montana Rev
Montana Rev
Montana Rev
Montana Rev
Montana Rev
Montana Rev
Montana Rev
Montana Rev
- 446 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
NORTH DAKOTA REPORT
(1973)
1.0 OVERVIEW
1.1 Description of Existing Agencies
The State Department of Health is the administering agency
for North Dakota's water pollution control laws.1
Some of the duties and powers of the department are: (1) to
develop comprehensive programs for the prevention, control
and abatement of pollution?2 (2) to accept and administer
grants from the federal government such grants only to be
expended for the purposes for which they are provided;3 (3)
to issue, modify or revoke orders prohibiting or abating the
discharge of waste and requiring the construction of new dis-
posal systems; ** (4) approve or deny plans for the construction
of disposal systems and inspect the construction of such dis-
posal systems;5 (5) to act as the state water pollution control
agency for all purposes of the federal Water Pollution Control
Act;6 (6) and establish and review classification of waters, water
quality standards and effluent standards.7
There are two entities which may render waste treatment ser-
vices (i.e., management agencies): municipalities and sewer
districts.8
Sewer districts are created by ordinance of the governing body
of a municipality and may include areas lying outside such
municipality-9
1.2 Schematic Diagram of Existing Agencies
State Water Pollution
Control Board
(Advisory)
Department
of
Health
State Health
Council
(Conducts Hearings)
2.0 ANALYSIS OF' EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208 (c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
As was noted in paragraph 1.1, two treatment agencies will be
- 447 -
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considered throughout this report: sewer districts and
municipalities.
2.1 Authority Directly or By Contract, to Design and
Construct New Works and to Operate and Maintain New
and Existing Works as Required by Any Areawide Plan.
[§208(c) (2) (C) ] .
Both municipalities and .sewer districts are authorized to
construct, operate and maintain sewage treatment works.
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)].
Neither treatment agency is specifically authorized to receive
grants from the federal government. On the other hand, the De-
partment of Health is so authorized, and since the grants which
it receives must be used for the purposes for which they were
given, the Department should be able to insure that federal
funds will be properly channeled to the treatment agency-11
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208 (c) (2) (E) ] .
As will be noted below, both agencies have charging authority.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency. [§204 (b) (1) (A) ].
Sewer districts and municipalities are authorized to charge
users for services provided.12 Such broad charging authority,
not limited by any specified charging basis, should permit both
agencies to comply with this paragraph.
2.3.2 Full Recovery Will Be Had From the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [§204 (b) (1) (B) ] .
Neither sewer districts nor municipalities are specifically
authorized to charge to the extent necessary to pay non-bond
financed (federal portion) construction costs. Both agencies
could, however, contract with industry to assure recovery of
- 448 -
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such costs. Also as will be noted in paragraph 2.4.3, both
agencies may assess taxes to pay for construction costs.
Since the basis for such taxes is not the cost of the "treatment
works reasonably attributable to [each industry's] wastes,"
it is doubtful that this taxing authority satisfies the re-
quirements of paragraph 2.3.2.
2.4 Authority to Incur Short- and Long-Term Indebtedness.
[§208(c) (2) (F)] .
Both treatment agencies have bonding authority -
2.4.1 General Obligation Funding.
Upon a majority vote of qualified electors voting in a municipal
special election, a municipality may issue general obligation
bonds to an amount not exceeding four percent of the assessed
value of taxable property therein.13 Such bonds have a maximum
maturity period of 20 years.14
Sewer districts have no authority to issue general obligation
bonds, but do have authority to issue revenue bonds as noted
in paragraph 2.4.2.
2.4.2 Special Funds and Revenue Funding.
Sewer districts may issue revenue bonds.15 No maximum maturity
period is specified for such bonds.
A municipality may finance up to 60 percent of construction
costs through revenue bonds. Such bonds are secured not only
by the net revenue of the system, but also by a mortgage on the
system.17 No maximum maturity period is specified for such bonds,
If a municipality wishes to finance more than 60 percent through
revenue bonds, it must form a sewer district, which, as noted
1 A
above, can issue the necessary amount of revenue bonds.
2.4.3 Other Methods of Financing.
Municipalities may defray the cost of a sewage system out of the
general current tax revenues on hand and appropriated for that
purpose.19
Sewer districts may provide for the payment of one-fifth of
the construction costs through special assessments upon property
owners residing in the district. °
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2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c)(2)(G)].
There are no specific provisions which assure that each com-
munity will pay its proportionate share of the costs. As was
noted in paragraph 2.3.1, however, municipalities and sewer dis-
tricts should be able to assure that each individual user pays
his proportionate share and this, in turn, should satisfy this
paragraph's requirements.
2.6 Authority to Refuse to Receive Any Wastes From Any
Municipality or Subdivision Thereof, Which Does Not
Comply With Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§ 208 (c) (2) (H) ] .
Neither of the agencies under consideration may refuse a non-
complying municipality's waste.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
Neither of the treatment agencies possess moratorium powers.
As of July 1, 1973, the Department of Health has discharge
permit issuing authority which will provide it with substantial
moratorium powers.21
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
Neither of the treatment agencies are specifically authorized
to impose penalties and surcharges on noncomplying municipalities
but the Department of Health is so authorized. 2
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
Both agencies are authorized to treat industrial wastes.23
Municipalities are empowered to make "all necessary rules and
regulations governing the use, operation, and control" of
sewage systems. 2k This may provide municipalities with suf-
ficient authorization to require industry to pretreat their
waste.
- 450 -
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Sewer districts have no such authority, nor are they expressly
authorized to enter into contracts with industry, but the
Board of Health could require pretreatment.25
3.0 SUMMARY
With amendments effective July 1, 1973, North Dakota and its
management agencies are expressly authorized with the legal
capacity to comply with nearly all requirements of the Act.
The only deficiencies appear to be that treatment agencies lack
certain powers, but for the most part these deficiencies can
be overcome by action of the Board of Health.
3.1 Deficiencies
Under the present statutes in North Dakota, the following
deficiencies exist as to the treatment agencies only:
1. Neither treatment agency is specifically authorized to
receive federal grants.
2. Neither agency is expressly authorized to recoup the federal
portion of construction costs through service charges.
3. Neither agency possesses moratorium powers or lesser
powers connected with this point.
4. Sewer districts have no apparent method for requiring
industry to pretreat their waste.
4.0 BIBLIOGRAPHY
1. Ayers and Beck, Water Management Districts in North Dakota,
48 N.D. L. Rev. 361.
2. Water Quality Standards for Surface Waters in North Dakota
(Issued by Department of Health, 1970). (This reference
contains an extensive bibliography.)
FOOTNOTES
1. N.D. Code §61-28-01 et seq.
2. N.D. Code §61-28-04(2).
3. N.D. Code §61-28-04(4).
4. N.D. Code §61-28-04(7).
5. N.D. Code §61-28-04(9).
6. N.D. Code §61-28-04(12).
- 451 -
-------
7. N.D. Code §61-28-04(14)-(17).
8. N.D. Code §§40-22-01(municipalities) and 40-22-08(sewer
districts).
9. N.D. Code §40-22-09.
10. N.D. Code §40-34-01 and §40-22-01, -08, respectively.
11. N.D. Code §61-28-04(4).
12. N.D. Code §§40-22-16, -34-05, respectively.
13. N.D. Code §21-03-04(3).
14. N.D. Code §21-03-08.
15. N.D. Code §40-24-19.
16. N.D. Code §40-34-02.
17. N.D. Code §40-34-02-.
18. N.D. Code §40-34-02.
19. N.D. Code §40-34-02.
20. N.D. Code §40-24-10.
21. N.D. Code §61-28-04(18) and (19).
22. N.D. Code §§61-28-06 and 07.
23. N.D. Code §§40-22-01, -08(sewer districts); 40-34-05
(municipalities).
24. N.D. Code §40-34-05.
25. N.D. Code §61-28-04(23).
(Note: References to §§61-28-04, 06 and 07 were taken from a
copy of Senate Bill No. 2168, effective July 1, 1973, which
copy was furnished by North Dakota State Department of Health.)
- 452 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
SOUTH DAKOTA REPORT
(1973)
1.0 OVERVIEW
1.1 Description of Existing Agencies
South Dakota enacted new legislation in the early part of
1973, revising the existing laws concerning water pollution.
The new administering agency for water pollution control is
the Water Pollution Control Commission.1
The Commission has authority to set standards of water quality,
classify all waters of the state, formulate effluent standards
according to the Federal Water Pollution Control Act, regulate
and control permits to discharge sewage or industrial wastes,
enforce water pollution control laws by court actions and reg-
ulate state grants of funds.2
The Director of the Division of Sanitary Engineering and Environ-
mental Protection administers the new act. This director has
powers to control permit issuances, issue clean-up orders, enter
and inspect any premises and require operators of point sources
to maintain records, prepare reports, install monitoring equip-
ment and sample effluents.3
It is further provided that it is illegal to cause water pollu-
tion or discharge wastes which lower water quality levels.4
Permits are required to operate or construct disposal systems,
increase the volume or strength of discharges, construct or op-
erate any industrial establishments which would cause water
quality levels to decrease, and to construct or use any new
outlets for discharging wastes.5
Strict measures are set forth to enforce the new legislation.
First-time violators can be fined $25,000 per day or receive one
year in jail, or both.6 Fines for subsequent convictions can
reach $50,000 per day.7 Civil penalties of up to $10,000 per
day can also be imposed8 as can injunctions.9
New legislation also provides for a program of state grants to
local governments for the purpose of aidim water pollution
control projects construction.10
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It should be noted that new legislation also sets up areawide
waste treatment management agencies and gives these agencies the
express powers required by § 208 (c) (2) . 1 1
There are two entities which may now render waste treatment ser-
vices (i.e.. management agencies); municipalities and'sanitary
districts.12 Upon petition by one-third of the eligible voters
residing within a proposed sanitary district, the question of
the district's creation is submitted to the electors of the dis-
trict.13 If a majority of the votes cast so approve, the sani-
tary district is created.14 A sanitary district may not include
any municipality.15
Since the proposed new waste treatment management agencies will
probably incorporate existing municipal and sanitary district
facilities, this report will assume that the powers granted the
new agencies also apply to existing agencies.
1.2 Schematic Diagram of Existing Agencies
State Department
of Health
Attorney General
(legal advisor)
Water
Pollution
Control
Commission
Division of
Sanitary
Engineering
and
Environmental
Protection
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND SELECTED
RELATED SECTIONS OF THE ACT.
As was noted in paragraph 1.1, two treatment agencies will be
considered throughout this report: municipalities and sanitary
di T
- 454 -
-------
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c)(2)(C)J.
Both municipalities and sanitary districts are authorized to
construct, operate and maintain sewer treatment works either
directly, or by contract.16
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)].
All local agencies are specifically authorized to receive grants
or other funds from the federal government or other sources.17
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [§208 (c) (2) (E) ] .
All management agencies possess this exact authority.
1 8
2.3.1 Each Category of User Will Pay its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b)(1)(A)].
When assessing waste treatment charges, municipalities are
required to take into consideration the quantity and concen-
tration or strength of waste treated.19 Such charges must be
used to pay, among other things, operation and maintenance of
sanitary facilities.20 Municipalities seem to satisfy the re-
quirements of this paragraph.
f
Sanitary districts are required to charge an amount adequate
to pay operation and maintenance costs and principal and in-
terest on revenue bonds.21 No charging basis is provided. No
election is required for such charges to be assessed.22 The
broad charging authority, not limited by any specified charg-
ing basis, should permit compliance with this paragraph by
sanitary districts, especially in light of the precise authority
granted the new agencies by the new legislation.
2.3.2 Full Recovery Will be Had From the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works Reasonably
Attributable to Treatment of Such Industrial Wastes.
[§204(b) (1) (B)].
As noted in paragraph 2.3.1, sanitary districts are obligated to
- 455 -
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charge to the extent necessary to cover operation and maintenance
costs and principal and interest on revenue bonds; non-bond
financed construction costs (i.e., the federal portion) are not
mentioned. It would, therefore, appear that sanitary districts
are not able to meet the requirements of this paragraph.
On the other hand, municipalities are specifically authorized to
pay construction costs out of its service charges.23 This should
enable municipalities to meet this provision.
The new South Dakota legislation does not expressly provide for
the recovery of the capital costs of construction from industries.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)].
Express authority exists for all agencies to incur short- and
long-term indebtedness.24 As will be noted below, both treatment
agencies are authorized to issue revenue bonds.
2.4.1 General Obligation Funding.
Neither agency under consideration may issue general obligation
bonds.
2.4.2 Special Funds and Revenue Funding.
Sanitary districts and municipalities may, by ordinance, issue
revenue bonds.25 Before their issuance, however, such bonds
must either be petitioned for by a majority of eligible voters
residing within the agency's jurisdiction or be approved by
sixty percent of such voters in a regular or special election.26
No maximum maturity period is specified.
2.4.3 Other Methods of Financing.
Municipalities are authorized to assess taxes to finance the
construction of sewer treatment plants and various types of
sewer lines.27 Sanitary districts may assess taxes for corporate
purposes.2 8
2.5 Authority to Assure in Implementation of Its Waste Treatment
Management Plan That Each Participating Community Pay Its
Proportionate Share of Treatment Costs. [§208 (c) (2) (G)].
The new treatment agencies have this express authority to charge
communities proportionately.29 It is, therefore, assumed that
existing agencies also have this authority.
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2.6 Authority to Refuse to Receive Any Wastes From Any
Municipality or Subdivision Thereof, Which Does Not
Comply With Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§208 (c) (2) (H) ] .
The new treatment agencies are specifically authorized to refuse
municipal wastes.30 Therefore, municipal systems and sanitary
districts which are incorporated into the new agencies would
reasonably seem to have this authority.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
The authority noted in paragraph 2.6 should enable the treatment
agencies to place reasonable conditions on the furnishing of its
services. One such condition might be the denial of additional
hook-ups.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply with
the Areawide Plan.
The same power noted in paragraph 2.6 would also enable agencies
to impose penalties and surcharges for breach of contract pro-
visions .
2.7 Authority to Accept for Treatment Industrial Wastes.
t§208(c) (2) (I)].
There is express authority for new treatment agencies to accept
for treatment industrial wastes.31 This authority is broad
enough to include the requirement of pretreatment.
3.0 SUMMARY
This report has noted the new legislation enacted in South
Dakota. This legislation was apparently drafted to bring the
state into compliance with the Federal Water Pollution Control
Act Amendments of 1972. As a result, South Dakota has express
statutory authority to meet virtually all provisions of the
Act.
3.1 Deficiencies
The only deficient area of statutory law concerns paragraph 2.3.2
- 457 -
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No express authority exists for sanitary districts or the new
agencies to recover the capital costs of construction, although
municipalities do possess this power. However, the necessary
authority might reasonably be implied from the broad charging
powers of the agencies. Enactment of new legislation giving
express powers in this area would bring South Dakota into com-
plete compliance with the Act in regards to areawide waste
treatment management agencies.
4.0 BIBLIOGRAPHY
1. Matthew, Floyd, Practical Comment: A Lawyer's Pollution
Primer, 16 So. Dak. L. Rev. 309 (1971).
2. Munro, James, South Dakota and the Water Impasse, 11 So.
Dak. L. Rev. 255 (1966).
3. Note, Watson v. Great Lakes Pipeline Company - A Public
Nuisance Approach to Water Pollution, 16 So. Dak. L. Rev.
510 (1971).
FOOTNOTES
1. As of July, 1973 the new legislation had not been given
section numbers or published. This report will refer to the
legislation by its bill number as furnished by the South
Dakota Department of Health. The act establishing the Water
Pollution Control Commission is HB 819 §3. Note that if
executive order 73-1 becomes law, the Board of Environmental
Protection shall succeed the Commission's power. H.B. 819
§7.
2. H.B. 819 § 4.
3. H.B. 819 §6.
4. H.B. 819 § 8.
5. Id.
6. H.B. 819 § 14.
7. Id.
8. Id_.
9. H.B. 819-§15.
10. H.B. 643 § 1.
11. H.B. 819 § 18.
12. S.D. Comp. Laws Ann. §§34-17-1 et seq. (1972 Revision), 9-48-1
et seq. (1967).
13. S.D. Comp. Laws Ann. §§34-17-1, 34-17-7-
14. S.D. Comp. Laws Ann. § 34-17-11.
15. S.D. Comp. Laws Ann. §34-17-1.
- 458 -
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16. H.B. 819 §18(3) (c) .
17. H.B. 819 §18 (3) (d) .
18. H.B. 819 §18(3) (e) .
19. S.D. Comp. Laws Ann. §9-48-27.
20. S.D. Comp. Laws Ann. §9-48-29.
21. S.D. Comp. Laws Ann. §34-17-30.
22. S.D. Comp. Laws Ann. §34-17-32.
23. S.D. Comp. Laws Ann. §9-48-29.
24. H.B. 819 §18(3) (f) .
25. S.D. Comp. Laws Ann. §§9-50-7, 34-17-30.
26. Id.
27. S.D. Comp. Laws Ann. §9-48-8 (service sewers); 9-48-13 (main,
trunk and storm sewers); 9-48-52 (sewage treatment plants).
28. S.D. Comp. Laws Ann. §§34-17-26, 34-17-33.
29. H.B. 819 §18(3) (g) .
30- H.B. 819 §18(3) (h) .
31. H.B. 819 §18(3) (i) .
- 459 -
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UTAH REPORT
(1973)
1.0 OVERVIEW
1.1 Description of Existing Agencies
The State Water Pollution Control Committee is the adminis-
tering agency for Utah's water pollution control laws.1
Some of the duties and powers of the committee are the fol-
lowing: (1) to develop programs for pollution control and
abatement;2 (2) to accept and administer grants from the fed-
eral government;3 (3) to adopt and enforce water quality stand-
ards; (4) to adopt and enforce rules and regulations;5 (5)
to issue orders prohibiting or abating waste discharge and
requiring the construction of new treatment works;6 and (6)
to issue or deny permits which are required before waste may
be discharged into state waters or treatment works may be con-
structed or modified.7
There are two entities which may render waste treatment ser-
vices (i.e., management agencies): municipalities8 and Im-
provement Districts9 [hereinafter referred to as ID's].
ID's are created by resolution of the board or boards of county
commissioners for all counties lying wholly or partly within
the proposed district.10 If the resolution is subsequently
opposed by 25 percent of real property owners residing within
the district, the district cannot be established.11
1.2 Schematic Diagram of Existing Agencies
Division of
Health
Committee on
Water Pollution
- 461 -
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND
SELECTED RELATED SECTIONS OF THE ACT.
As was noted in paragraph 1.1, two treatment management agen-
cies will be considered throughout this report: municipalities
and ID's.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c)(2)(C)].
Both municipalities and ID'S are authorized to construct,
operate and maintain sewer treatment works.12
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c)(2)(D)].
Both municipalities and ID'S are specifically authorized to
receive federal grants.13
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§ 208(c) (2) (E)] .
Both management agencies have charging authority.
' 2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)].
Both municipalities and ID'S may charge for the use of their
facilities and services to the extent necessary to pay for,
among other things, operation and maintenance costs. Such
an unqualified authorization should permit compliance with
the provisions of this provision of the act, although in
neither case is a charging basis specifically provided.
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [§204(b) (1) (B)] .
ID's are authorized to charge for its services to the extent
necessary to pay for operation and maintenance expenses and
- 462 -
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principal and interest on issued bonds.15 It would there-
fore appear the ID'S have no express authority to recoup the
federal (nonbond financed) portion of construction costs.
On the other hand, municipalities are specifically authorized
to "defray the cost of construction, reconstruction, main-
tenance or operation of any. . .sewage treatment plant" through
service charges.16 Accordingly, municipalities are authorized
to recoup construction costs through charges.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)] .
Both treatment agencies under consideration have bonding au-
thority.
2.4.1 General Obligation Funding.
ID's are authorized to issue general obligation bonds having
a maximum maturity period of forty years. 7 Such an issuance
must first be approved by a majority of electors voting in
a special election.18 Such bonds may not cause the ID's out-
standing debt to exceed 12 percent of the assessed value of
taxable property in the district.19 The full faith, credit
and resources of the district are pledged to the payment of
principal and interest on the due dates.20
Municipalities are also authorized to issue general obligation
bonds having a maximum maturity period of forty years.21
Cit-es of the first and second class (having populations
greater than 100,000 and less than 100,000 but greater than
60,000 respectively)22 may not issue any such bonds if, by
so doing, they would cause their aggregate indebtedness to
exceed eight percent of the value of the taxable property
therein.23 The debt ceiling for cities of the third class
(having populations between 800 and 60,000)21* and towns (pop-
ulation less than 800)2S is twelve percent.26
2.4.2 Special Funds and Revenue Funding.
Municipalities have no authority to issue revenue bonds for
the purpose of financing sewer treatment works construction.
ID's are authorized to issue revenue bonds in the same manner
as they issue general obligation bonds.27 However, the debt
limitations, noted in paragraph 2.4.1, do not apply to revenue
bonds and the full faith and credit of the district is not
pledged to the payment and interest on revenue bonds.28 The
maximum maturity period of forty years also applies to revenue
bonds.29
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2.4.3 Other Methods of Financing.
Municipalities may assess an annual tax in order to finance
the construction of sewer facilities and pay the principal
and interest on general obligation bonds issued to finance
sewer facility construction. °
ID's are authorized to impose an annual tax "for district
purposes."3l
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c) (2) (G)] .
There are no specific provisions which assure that each com-
munity will pay its proportionate share of the costs. As was
noted in paragraph 2.3.1, however, municipalities and ID's
should be able to assure that each user will pay his propor-
tionate share and this, in turn, may satisfy this paragraph's
requirements.
2.6 Authority to Refuse to Receive Any Wastes Prom Any Muni-
cipality or Subdivision Thereof, Which Does Not Comply
With Any Provisions of an Approved Plan Under §202 Appli-
cable to Such Area. [§208(c) (2) (H) ] .
Neither of the agencies under consideration may refuse a non-
complying municipality's waste.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
Neither of the treatment agencies possesses "moratorium powers."
However, the State Water Pollution Control Committee may deny
a waste discharge permit if, by granting the permit, water
quality standards would be violated.32 This power to deny
permits should give the committee substantial "moratorium
powers."
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
Neither of the treatment agencies are expressly authorized to
impose penalties or surcharges on noncomplying municipalities.
- 464 -
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2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
ID's are specifically authorized to contract with firms and
corporations for the furnishing of waste treatment services.33
The ability to contract should enable ID'S to place conditions
on their services such as requiring pretreatment of certain
industrial wastes.
Municipalities are not specifically authorized to receive
industrial wastes. While thi3 authorization might reasonably
be implied from the fact the class of "users" is not specific-
ally limited to "natural" persons, it is doubtful whether muni-
cipalities can place conditions (such as pretreatment) on the
furnishing of its services because of their apparent inability
to contract with industries for treatment services.
ID's and the State Water Pollution Control Committee are spe-
cifically authorized to investigate' sewage discharges from
private and public property. 3I+ Additionally, the Committee
is empowered to require the maintenance of reasonable records
relating to the operation of disposal systems and may require
submission of copies of such records.35 No provision states
how the ID's or Committee are to treat confidential material
(or whether such material even has to be disclosed).
3.0 SUMMARY
Utah can comply with most of the requirements of the Act.
The enactment of new legislation would cure the deficiencies
described in paragraph 3.1, or at least eliminate the neces-
sity of implying these specific powers from some general powers,
3.1 Deficiencies
Under the present statutory set-up in Utah, the following de-
ficiencies exist:
(1) ID's are not able to recoup the federal portion of con-
struction costs through services charges (2.3.2);
(2) neither agency is authorized to refuse municipal waste,
nor do they possess lesser powers on this point (2.6 and
2.6.2); and
(3) municipalities have no apparent authority to require
pretreatment of industrial wastes (2.7).
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4.0 BIBLIOGRAPHY
None.
FOOTNOTES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35,
Utah
Utah
Utah
Utah
Utah
Utah
Utah
Utah
Utah
Utah
Utah
Utah
Utah
Utah
Utah
Utah
Utah
Id.
Id.
Id.
Utah
Utah
Utah
Utah
Id.
Utah
Utah
Id.
Id.
Utah
Utah
Utah
Utah
Utah
Utah
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
Code
§
§
§
§
§
§
§
73-14-1 et seq. (1968) .
73-14-4
73-14-4
73-14-4
73-14-4
73-14-4
73-14-4
§10-7-4
§17-6-1
§
17-6-2
§17-6-3
§
§
§
§
§
(a) (1968) .
(c) (1968).
(f) (Supp. 1973) .
(g) (Supp. 1973) .
(h) (Supp. 1973) .
(j) (1968).
et seq. (1973) .
et seq. (1973) .
TT973) .
(1973) .
§10-8-38, 17-6-1(1), respectively (1973)
55-3-30
(1963) .
§10-8-38, 17-6-3.6, respectively (1973).
17-6-3.
10-8-38
§17-6-3.
§
§
§
§
§
§
§
§
§
§
§
§
10-7-9.
10-1-1
10-7-7
10-1-1
10-7-7
17-6-3.
10-7-14
17-6-3.
§73-14-
17-6-22
§10-7-1
73-14-9
6 (1973).
(1973) .
5 (1973).
(1973) .
(1973) .
(1973) .
(1973) .
5 (1973).
.2 (1973).
4 (1973).
5, -6 (1968) .
(1973) .
3 (1973) , 73-14-9 (1968) .
(1968) .
- 466 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT
WYOMING REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
In 1969, the powers, duties and regulatory authority of the
Board of Health were transferred to the Department of Health
and Social Services (Department).1 The Department through
its Coordinator and Administrator administer Wyoming's
water pollution control laws. Some of its duties and powers
are: (1) to approve or disapprove sewage disposal system
plans which all cities, towns, corporations, companies or
persons are required to submit;2 (2) to issue pollution abate-
ment orders;3 and (3) inspect private and public establishment
for conditions which may relate to pollution of state waters.4
The governing bodies of cities or towns and sanitary districts
are the two agencies which are authorized to render waste
treatment management services.
Upon the petition of ten percent of the eligible voters
residing within the proposed district the question of a
district's creation is voted upon in a special election.5
The approval of a majority of the votes cast is required for
the district's creation.6
1.2 Schematic Diagram of Existing Agencies
WYOMING WATER POLLUTION CONTROL ADMINISTRATION
Governor
Department of Health
and Social Services
Advisory
Council
Division of Health
and Medical Services
Attorney General
(legal advisor)
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND
SELECTED RELATED SECTIONS OF THE ACT.
As was noted earlier, two treatment agencies will be considered
in this report: the governing bodies of cities or towns
(hereinafter referred to as municipalities) and sanitary dis-
tricts .
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Recruired by Any Areawide Plan. [§208(c) (2) (C) ] .
Municipalities and sanitary districts are authorized to con-
struct, operate and maintain sewer treatment plants.7
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
Municipalities may "apply for and accept...grants ... from the
United States of America or any agency or instrumentality
thereof under any federal law to aid in the prevention and
abatement of water pollution."8 Sanitary districts have no
specific authorization to receive grants.
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208(c) (2) (E) ] .
As will be noted below, both treatment agencies under con-
sideration have charging authority.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
.Services Provided by the Agency [§204(b) (1) (A)] .
Sanitary districts are given very broad charging authority.
It may assess "just and equitable...charges...for...the use
of the...disposal plant."9 Such authority, unqualified by
any specified limitations, should enable districts to comply
with this paragraph.
Municipalities must collect "a charge from the users of the
system at a rate sufficient to pay (among others) the cost
of operating and maintaining the system."10 No charging
- 468 -
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basis is specifically provided for. It therefore appears
that municipalities are also given sufficiently broad charging
powers to permit compliance with this paragraph.
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [ § 204 (b) (1) (B)] .
As noted in the previous paragraph, sanitary districts are
given very broad charging powers. Accordingly, it would
appear that districts can charge to the extent necessary to
pay back the "federal portion."
On the other hand, municipalities are required to charge a
sufficient amount to pay operation and maintenance costs and
principal and interest on bonds.11 The federal (non-bond
financed) portion is not required to be covered by the charges.
It could be argued, however, that while municipalities are
required to cover certain specified expenses, it may, never-
theless, voluntarily charge to the extent necessary to cover
other expenses (such as the "federal portion").
2.4 Authority to Incur Short- and Long-term Indebtedness
[§208(c) (2) (F) ] .
As will be noted below, both agencies have bonding authority.
2.4.1 General Obligation Funding.
Sanitary districts may petition the district court of the
county in which the lands of the district, or the greater
portion thereof, are situated, for the issuance of general
obligation bonds.12 The court has the power to examine and
determine the legality and confirm or disaffirm the issuance
of such bonds.13 Additionally, if forty percent or more of
the electors of the district file objections to such bonds
within twenty days of the first notice of the proposed bond
issuance, the question of such issuance must be submitted to
the district's electors in a special election.14 The proposal
must be approved by a majority of electors voting on the issue.15
The principal amount of such general obligation bonds may not
exceed ten percent of the assessed value of the taxable property
in the district.16 No limit on the maturity period of such
bonds is specified.
- 469 -
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Municipalities are authorized to issue general obligation
bonds for sewer system purposes as part of their power to
make public improvements.l7
2.4.2 Special Funds and Revenue Funding.
Sanitary districts may also issue revenue bonds.18 The pro-
cedure outlined in paragraph 2.4.1 for the issuance of general
obligation bonds also applies to revenue bonds. However, there
is no limit on the principal amount of revenue bonds.19 Again,
no limit on the maturity period of such bonds is provided.
Municipalities may, by ordinance, issue revenue bonds.20 No
prior approval, through a special election or otherwise, is
required for such an issuance.21 The maximum maturity period
of such bonds is 40 years.22
2.4.3 Other Methods of Financing.
Sanitary districts may levy and collect annual taxes to be
used for district "purposes."23 Municipalities do not possess
a similar power.
2.5 Authority to Assure in Implementation of Its Waste
Treatment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208(c)
(2) (G) ] .
There are no specific provisions which insure that each
community will pay its proportionate share of the costs.
As was noted in paragraph 2.3.1, however, municipalities and
sanitary districts can very likely assure that each individual
user will pay his proportionate share and this, in turn, may
satisfy this paragraph's requirements.
2.6 Authority to Refuse to Receive Any Wastes from Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§208(c)(2)(H)].
Neither of the treatment agencies are authorized to refuse
municipal waste.
2.6.1 Authority to Deny New or Additional "Hook-ups"
(Moratorium Effect).
While neither treatment agency possesses "moratorium powers"
the approval of the Department is required before any
- 470 -
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municipality may build or install any sewage system.2k
The conditions which would justify the withholding of approval
are not statutorily provided for, however.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply with the
Areawide Plan.
Neither of the treatment agencies are authorized to impose
penalties and surcharges against noncomplying municipalities.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
Both treatment agencies are specifically authorized to receive
industrial wastes.25 Additionally, both agencies are speci-
fically authorized to enter into contracts with industries
for the disposal of such wastes.26 The contractual power
should enable the agencies to place conditions (e.g., pre-
treatment of industrial wastes) on the furnishing of waste
treatment services.
The Department is authorized to conduct investigations on
public and private property.27 No provision states how
confidential material are to be treated. Neither treatment
agency is so authorized.
3.0 SUMMARY
Except as noted in paragraph 3.1, Wyoming can meet the require-
ments of the Act particularly if some functions required to
be performed in the area subject to an areawide plan are
delegated to existing state level agencies.
3.1 Deficiencies
1. Sanitary districts are not authorized to receive grants.
2. Municipalities' authority to charge for non-bond financed
construction costs should be made more explicit.
3. The procedural requirements prior to a bond issuance by
a sanitary district might be simplified.
4. Neither, treatment agency possesses the power to refuse
municipal wastes, nor do they have lesser powers on
this point.
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4.0 BIBLIOGRAPHY
1. Williamson, Arthur E., Water Quality Control From a
State Viewpoint, V Natural Resources Lawyer 230 (1972).
FOOTNOTES
1. Wyo. Stat. §9-160.2 (1971). See Wyo. Stat. §§35-184
et seq. for such powers and duties formerly exercised
by the Board of Health.
2. Wyo. Stat. §35-187.
3. Wyo. Stat. §35-190.
4. Wyo. Stat. §35-191.
5. Wyo. Stat. § § 35-141 ,-144.
6. Wyo. Stat. §35-144.
7. Wyo. Stat. §§15.1-456, 35-148.
8. Wyo. Stat. §15.1-456.
9. Wyo. Stat. §35-163.
10. Wyo. Stat. §15.1-460.
11. Wyo. Stat. §15.1-460.
12. Wyo. Stat. §35-158.
13. Wyo. Stat. §35-161.
14. Wyo. Stat. §35-162.
15. Wyo. Stat. §35-162.
16. Wyo. Stat. §35-156.
17. Wyo. Stat. §15.1-410 et seq.
18. Wyo. Stat. §35-156.
19. Wyo. Stat. §35-156.
20. Wyo. Stat. §15.1-457.
21. Wyo. Stat. §15.1-456.
22. Wyo. Stat. § 15.1-456(a) .
23. Wyo. Stat. §35-150.
24. Wyo. Stat. §35-187.
25. Wyo. Stat. sanitary districts -§35-148; municipalities
§15.1-455.
26. Wyo. Stat. sanitary districts -§35-148; municipalities
§15.1-456 (c) .
27. Wyo. Stat. §35-191.
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REGION IX
-------
PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT,
ARIZONA REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Arizona's primary agency for water pollution control is the
State Department of Health. Its functions in protecting the
quality of Arizona's waters include:
1. issuance of permits for discharge of wastes into state
waters, and for operation or modification of disposal sys-
tems ; !
2. issuance, modification, or revocation of orders prohibit-
ing or abating waste discharges, requiring construction
or modification of waste treatment facilities, or requir-
ing other remedial measures;2
3. approval of all plans for construction or modification of
disposal facilities;3
4. development of comprehensive programs for water pollution
control and participation in studies, investigations, and
demonstrations relating to water pollution control ;"*
5. entry upon and inspection of public or private property
to investigate known or suspected sources of pollution,
may require maintenance of records relating to the oper-
ation of disposal systems.5
6. cooperation with other state agencies, the federal govern-
ment, and other states or water pollution control;6
7. service as state water pollution control agency for pur-
poses of the Federal Water Pollution Control Act. The
Department is authorized to take all steps necessary to
secure for Arizona the benefits of the Act, to administer
and accept grants, and to certify, when requested costs
and expenditures for water pollution control facilities.7
Within the Department is the Board of Health. Its primary
function is to adopt rules and regulations effectuating the
- 475 -
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powers and duties of the Department to control water pollu-
tion.8 Also within the Department is the Water Quality Control
Council. Its functions include:
1. adoption of a comprehensive program for prevention, control,
and abatement of water pollution;
2. adoption, administration, and enforcement of water quality
standards and issuance of rules and regulations pertaining
to such standards;
3. determination of priority for grant applications.9
Other state level agencies exercise functions relative to water
quality. The State Land Department exercises general control
and supervision over the appropriation and distribution of the
waters of the state.10 The Arizona Water Commission is respon-
sible for development and management of the state's water re-
sources.11 The Arizona Game and Fish Commission is authorized
to institute local actions for discharges harmful to fish or
wildlife.12
Waste treatment is a local function in Arizona. Therefore, this
report will be limited to those units of local government au-
thorized to own and operate waste water treatment systems.
1.2 Schematic Diagram of Existing Agencies
ARIZONA
Water Quality
Control Council
(State Department of Health)
State Board of Health
Environmental Health Services
Water Pollution
Division
Sanitation
Division
Water Supply
Division
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208 (c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
This analysis covers towns, cities, sanitary districts, and
pollution control corporations, which constitute all of Arizona's
waste water treatment agencies. The capacity of each agency is
considered with respect to each of the grant eligibility require-
ments discussed below.
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c)(2)(C)].
Arizona's waste water treatment agencies are authorized to con-
struct, (directly or by contract), operate and maintain waste
treatment facilities. However, pollution control corporations'
power to operate such facilities is limited to operation in the
capacity of a lessor.14
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
t§208(c)(2)(D)].
All of Arizona's waste water treatment agencies possess suffi-
cient authority to comply with this requirement.
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [§208(c)(2)(E)].
Arizona's cities and towns are authorized to collect user
charges for waste water treatment services and to levy both
property taxes and special assessments.16 County sanitary
districts may charge and collect sewer service charges and
levy an annual property tax.17 Pollution control corporations
may collect rents from leased facilities.18
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204 (b) (1) (A)].
In addition to their authority, discussed above, to assess
user charges, Arizona's towns and cities are authorized to
perform such acts as are necessary and proper for the full
exercise of their powers.19
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These two grants of authority should be sufficient to allow
them to base their user charges on the character, volume and
flow of effluent treated. Therefore, they have authority to
structure their charge schedules to assure that each category
of user, residential, commercial, or industrial, will pay its
appropriate share of the costs of operation and maintenance of
waste water treatment facilities. The same analysis is applic-
able to county sanitary districts, which are authorized to
formulate and adopt rules and regulations governing the oper-
ation and utilization of their plants.20 Pollution control
corporations are empowered, to do such acts as are necessary
and appropriate to carrying out their purposes.21 However,
while this authority would allow them to frame their facility
leases to comply with the charge requirements of the act, re-
negotiation of current leases might be necessary to bring com-
pliance with such requirements.
2.3.2 Full Recovery Will Be Had from the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works Reason-
ably Attributable to Treatment of Such Industrial
Wastes. [§204(b)(1)(B)].
There is no specific legislation authorizing Arizona's waste
water treatment agencies to recover such capital costs solely
from industrial dischargers. To the extent that such recovery
is required under the terms of a federal grant, it is a cost
which agencies may recover. Though only one class of user will
be subject to such cost recovery, the classification appears
reasonable in that it avoids use of public funds to decrease
private costs of industrial dischargers. Specific legislation
would be advisable, however, to explicitly authorize such an
element of agency charges to industrial dischargers.
2.4 Authority to Incur Short- and Long-Term Indebtedness [§208
(c) (2) (F)] .
Subject to the "terms and limitations discussed in the following
sections, Arizona's waste water treatment agencies have authority
to incur long-term indebtedness. Though none of them has speci-
fic legislative authority to incur short-term indebtedness,
their authority to incur long-term debt and power to contract
are broad enough to encompass incurring short-term indebtedness.22
2.4.1 General Obligation Funding.
Pollution control corporations are not authorized to issue
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general obligation bonds. Sanitary districts may issue general
obligation bonds without a limitation on amount when authorized
by a majority of the electorate voting on the matter.23
2.4.2 Special Funds and Revenue Funding.
Cities, towns and pollution control corporations may issue rev-
enue bonds with no limit on amount when authorized by a majority
of the electorate voting on the matter, but in the case of pol-
lution control corporations approval by the directors and govern-
ing body of the corporation is sufficient.24
2.4.3 Other Methods of Financing.
Cities and towns may issue assessment bonds for local improve-
ments.25 Revenue bonds of pollution corporations may be addi-
tionally secured by mortgages covering properties of the corpor-
ation. 2t
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c) (2) (G)] .
Sanitary districts may construct, operate and maintain waste
water treatment facilities jointly with other districts, munic-
ipalities or government agencies."7 In any such joint venture,
the contractual apportionment of treatment costs will be accept-
ible for grant purposes as representing the proportionate share
of treatment costs attributable to each community receiving
services from the jointly operated facility. Therefore, in
such cases the agreement will assure that each participating
community will pay its proportionate share of treatment costs.
Pollution control corporations can comply with this grant require-
ment by drafting their facility leases so as to assure that
recipients of services from the facility will pay their propor-
tionate share of treatment costs. Cities and towns, through
the terms of their authority to asssss user charges,28 impliedly
have sufficient authority to comply with this requirement.
2.6 Authority to Refuse to Receive Any Wastes from Any Munic-
ipality or Subdivision Thereof, Which Does Not Comply
With Any Provisions of an Approved Plan Under §202 Applic-
able to Such Area. [§208 (c) (2) (H)] .
None of Arizona's waste water treatment agencies have specific
authority to "cut off" service to municipalities or subdivisions
- 479 -
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being served by their facilities.29 Further, it is unlikely
that such action would be judicially regarded as being within
the scope of the agencies' necessarily implied powers. The
authority, noted in section 1.1 above, of the State Board of
Health to regulate waste discharges through the mechanism of
discharge permits is essentially the power to refuse to receive
wastes. Though this required power is possessed by a state
regulatory agency rather than by a local management agency,
the state minimally complies with this grant requirement.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
Arizona's waste water treatment agencies are not required to
connect their treatment facilities to communities or subdivisions
outside their boundaries. With respect to such communities or
subdivisions they can deny new "hook-ups." The power of the
agencies to refuse to connect communities or subdivisions within
their boundaries is much more limited.30 Further, as the non-
compliance involved in such cases will often be attributable-
to the agency itself, denying new "hook-ups" would not be a
practical sanction.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply with the
Areawide Plan.
No sanctions exist which would be applicable to municipalities
or subdivisions as the charge system and penalties for violation
of ordinances were primarily designed to operate on individual
violators. Additionally, where the violator is an unincorporated
subdivision or community there is no single individual against
which sanctions could be applied.
2.7 Authority to Accept for Treatment Industrial Wastes. [§208
(c) (2) (I)] .
The authority of Arizona's agencies to provide waste treatment
services, discussed in section 2.1 above, is sufficient to per-
mit them to treat industrial wastes. Requiring pretreatment
of industrial wastes is within the agencies powers to the ex-
tent that pretreatment is necessary to protect the porper oper-
ation of their facilities. Absent such pretreatment the agencies
would necessarily be empowered to refuse industrial wastes in
order to execute their waste treatment function. This conclusion
is stronger for county areas where industrial dischargers may
be required to obtain local discharge permits.31
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3.0 SUMMARY
Arizona's waste water treatment agencies are generally in com-
pliance with the requirements of the Act. However, additional
legislation would be advisable to clarify and strengthen their
authority in certain areas.
3.1 Deficiencies
The agencies should be clearly authorized to recover from indus-
trial waste dischargers the federal portion of the capital
costs of new facilities attributable to treatment of their
wastes. Sanctions should be provided for use against noncom-
plying communities. Specific authority should be provided
allowing the agencies to require pretreatment, monitoring and
reporting by industrial dischargers.
4.0 BIBLIOGRAPHY
1. Notes, 5 Ariz. L. Rev. 139 (1963).
2. Reed, Kenneth R., Economic Incentives for Pollution Abatement;
Applying Theory to Practice, 12 Ariz. L. Rev. 511 (1970).
3. >Mann, Dean E., The Politics of Water in Arizona, (1963) .
FOOTNOTES
1. A.R.S. §36-1856(11) (Supp. 1972).
2. A.R.S. §36-1856(8).
3. A.R.S. §36-1856(10).
4. A.R.S. §§36-1856(4), 36-1856(5).
5. A.R.S. §36-1863.
6. A.R.S. §§36-1856(2), 36-1856(5).
7- A.R.S. §§36-1856(9), 36-1852, 36-1856(6).
8. A.R.S. §36-1855.
9. A.R.S. §§36-1854, 36-1857.
10. A.R.S. §45-102 (1956).
11. A.R.S. §45-506 (Supp. 1972).
12. A.R.S. §17-237.
13. Towns, A.R.S. §§9-521(4) (a), 9-522(A)(l), 9-240(25) (c)
(1956); cities, A.R.S. §§9-521(4) (a) , 9-522(A)(l); City
of Scottsdale v. Municipal Court of Tempe, 90 Ariz. 393,
386 P.2d 637 (1962); sanitary districts, A.R.S. §§36-1310(1),
36-1317(A); pollution control corporations, A.R.S. §§9-1226
(A)(3), 9-1226(A)(3), 9-1226(A)(10), 9-1226(13) (Supp 1972).
14. A.R.S. §9-1226(B).
15. Cities and towns, A.R.S. §9-672(B)(3) (1956); pollution con-
trol corporations, A.R.S. §9-1281 (Supp. 1972).
- 481 -
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i9-240(26), 9-244, 35-458, 35-474, 9-601 et seq.,
§§9-240(22), 9-240(28) (a) , 9-240(29)
16. A.R.S.
9-530.
17. A.R.S. §§36-1326, 36-1324, 36-1325.
18. A.R.S. §9-1226(A)(5).
19. Cities and towns, A.R.S,
20. A.R.S. §36-1310(12).
21. A.R.S. §9-1226 (A).
22. Cities and towns, A.R.S. §§9-522(A)(2), 9-512, 9-812; sani-
tary districts, A.R.S. §§36-1320 (a) , 36-1317(A); pollution
control corporations, A.R.S. §§9-1261(A)(1), 9-1261(A),
9-1226 (A) (10) .
23. A.R.S. §1320(A).
24. Cities and towns, A.R.S. §§9-522(A), 9-523, 9-537; Guthrie
v. City of Mesa (1936), 47 Ariz. 336, 56 P. 2d 655; Crandall
v. City of Safford (1936) 47 Ariz. 402, 56 P. 2d 660; pollu-
tion control corporations, A.R.S. §§9-1226 (A), 9-1226(B),
9-1262.
25. A.R.S. §§9-694 et seq.
26. A.R.S. §9-1262.
27. A.R.S. §36-1310(4).
28. A.R.S. §§9-530.
29. Sanitary districts may have certain connections abated as
nuisance if they were made in violation of district rules
regulating connections. A.R.S. §36-1328. This power is
too narrow to comply with grant requirements. The rule
violation which would bring this provision into play would
not necessarily violate a provision of an areawide plan,
and most non-compliances with such a plan would not permit
the district to disconnect.
30. The zoning power of cities and towns, A.R.S. §9-461(B)
gives them considerable control over construction in and
around their territories, but once structures are completed,
their power to refuse connection is limited.
31. A.R.S. §36-1310(11).
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
CALIFORNIA REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies.
On the state-wide and regional level, water quality planning
and control in California is primarily the responsibility of
subdivisions of the State Resources Agency. The Resources
Agency exercises the administrative supervision over the op-
erations of agencies within it and serves as the principal
communication link between those agencies and the Governor.1
The State Water Resources Control Board, administratively
located within the Resources Agency is charged with state-
wide water quality planning and control. Its responsibilities
include formulation and adoption of statewide policy for wator
quality control,2 research administration,3 review of actions
of the regional water quality control boards,"4 and administra-
tion of water quality grants under federal law.5 Within the
State Board is the Water Quality Coordinating Committee which
provides water quality information and advice to the Board.6
For purposes of regional water quality p-lanning and control,
California is divided, generally along the lines of its river
basins, into nine regions, each with its own regional water
quality control board.7 The regional boards formulate and
adopt regional water quality control plans and objectives,8 de-
sign programs of implementation for achieving water quality
objectives,9 set requirements for individual waste dischargers,10
make rules and regulations to carry out their powers and duties,11
and enforce discharge requirements.12
The regional boards have powerful means of enforcing their
orders. If discharge requirements are not being met, boards
may issue cease and desist orders to violating dischargers.13
If this does not bring compliance they may, through the State
Attorney General's Office, petition for an injunction.11* Addi-
tionally, persons violating a cease and desist order may face
civil liability of up to $6,000 per day of violation.15 Where
the violator is a community, the regional board may impose a
ban on new connections to existing sewer systems which may
amount to a ban on new construction.16 Powerful as these sanctions
- 483 -
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are, however, they relate only to existing violations of
discharge requirements. The boards are specifically pro-
hibited from framing their orders so as to prevent future
violations by specifying the "design location, type of con-
struction or particular manner in which compliance may be
had. . . 17 Thus any course of action by a violator which
will bring it into compliance with discharge requirements
will be legally sufficient even though the scope of such
remedial action may be shortsighted and wastefully restric-
ted to the needs of too small an area or projected period
of use.
The Department of Water Resources, also within the Resources
Agency, has as its major responsibility the control and
management of water supply for the state primarily through
its direction of the State Water Resources Development System
(the California Water Plan).18 Thus, its major functions lie
in the area of water quantity rather than quality. Its water
quality function is limited, for the most part, to an annual
investigation of the quality of all waters within the state
with respect to all sources of pollution and a report of its
findings to the legislature, the Water Resources Control Board
and the regional water quality control boards.19
The Department of Fish and Game exercises an enforcement func-
tion with respect to water quality control by enforcing pollu-
tion prohibitions contained in the Fish and Game Code, and
by reporting chronic pollution situations to the appropriate
regional board for correction.21
The State Department of Health, unlike the agencies discussed
above, is not within the Resources Agency. It does, however,
have Water quality control functions through its control over
water suppliers. These functions, exercised either by the
department or through its component State Board of Health, in-
clude reporting of pollution problems to the appropriate re-
gional boards, issuance of permits to water suppliers,23 and
enforcement of quality standards through administrative controls21*
or initiation of civil or criminal judicial proceedings.25
Though planning and control functions with respect to water
quality are strongly emphasized on the state and regional level,
waste treatment management is almost exclusively a local con-
cern.26 Numerous types of local agencies are authorized to
construct and operate sewage collection and treatment systems.
These agencies include cities, counties, irrigation districts,
California water districts, county water districts, county water-
works districts, community services districts, municipal utility
- 484 -
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districts, public utility districts, municipal water districts,
water conservation districts, county sanitation districts, and
sanitary districts. Though the powers, functions, and the
types of territory included in these agencies vary widely,27
they have in common, however varied the statutory terms, the
powers necessary to adequately carry out their waste management
functions, at least at the primary treatment level.
1.2 Schematic Diagram of Existing Agencies.
State Resources Agency
Department of
Health
Department of Water Resources
Department of Fish and Game
State Water Resources
Control Board
Water Quality
Advisory Committee
Regional Water Quality Control Boards
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND
SELECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and
Existing Works as Required by Any Areawide Plan.
[§208(c) (2) (C)] .
The local agencies listed above all comply with the requirements
of this provision by the terms of the statutes under which they
are organized.28 Further, under either California's Sewer
Revenue Bond Act29 or the Revenue Bond Act of 194130 general
authority is granted to the local agencies which also complies
with the requirements of this provision.31
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D) ] .
Practically all of California's waste treatment management
agencies are authorized to cooperate with or accept grants
from the federal government.32 The Revenue Bond Act of 1941
gives them general authority to accept federal grants and
authority to do all acts necessary to avail themselves of
federal aid.3 3
However, the California Water Code requires the Water Resources
Control Board to approve any project for which a grant appli-
cation has been made under the Federal Water Pollution Control
Act34 and "to administer any program of financial assistance
for water quality control which may be delegated to it by
law and . . . accept funds from the United States or any
person to that end."35 Neither of these state requirements
prevents local agencies from complying with the grant re-
quirements of the Act. The first provision merely imposes
conditions on local agency grant applications -- that their
relative priority is to be established by the Board,36
that they conform to state policy,37 and that the state share
of project costs will be available.38 These conditions are
not in conflict with the Act. The assignment of grant program
administrative functions to the Board is not in conflict with
the Act, as the Act does not prevent administrative responsi-
bilities from being delegated to an agency such as the Board.
- 486 -
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Therefore, the grant approval and administration functions of
the Board do not affect the grant eligibility of local agencies.
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [ § 208 (c) ( 2) (E)] .
Each of California's local waste water management agencies is
authorized by its organic statutes to assess and collect user
charges, taxes and special assessments to meet the operational
and capital costs of sewage collection and treatment.39
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided By the Agency [§204(b) (1) (A)].
California's local waste treatment agencies are authorized to
perform all acts necessary to the full exercise of their powers.1*0
This authority, combined with their authority to assess charges,
is sufficient to allow them to follow when assessing user charges,
the practice of basing their rates on the volume, character,
and delivery flow of effluents treated. Therefore, they have
authority to structure their charge schedules to assure that
each category of user, residential, commercial, or industrial,
will pay its appropriate share of the costs of operation and
maintenance of waste treatment services.
2.3.2 Full Recovery Will Be Had From the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works Reason-
ably Attributable to Treatment of Such Industrial
Wastes. [§204(b)(1)(B)].
As discussed in Section 2.4 below, California's waste treatment
agencies are authorized to recover those capital costs of their
facilities which were financed by either general obligation or
revenue bonds. The federal portion of the capital costs of pro-
jects funded under the Act is not a cost which treatment agencies
are specifically authorized to recover. However, to the extent
that the terms of the grant require such recovery, the amounts
involved are recoverable costs. Additionally, it can be argued
that the local agencies' (i) authority to charge for their ser-
vices, (ii) necessary and proper powers, and (iii) authority
to cooperate with the federal government would permit them to
include this type of cost in their charges to industrial dis-
chargers. Specific legislation on this point would be desirable
however.
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2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)] .
Local treatment agencies are authorized to incur both short-
term and long-term indebtedness.
2.4.1 General Obligation Funding.
Each agency is specifically authorized to issue general obli-
gation bonds.1*1 In so borrowing they are not bound by the
limitation on state debt imposed by the California constitution.1*2
Cities and counties, when they construct waste treatment facili-
ties, are bound by a constitutional limitation, but only to
the extent that they may not incur debt exceeding their yearly
income or revenue unless approved by two-thirds of their voters
and provision is made for sufficient tax revenue to discharge
the obligation within forty years.1*3 Roughly half of those
agencies authorized to construct and operate waste treatment
facilities are bound by statutory limitations on the amount of
their long term general obligation debt, expressed as a percent-
age of the value of the assessable property within their juris-
dictions.1*1* With the remaining agencies there is no stated
limit on the amount of their long term general obligation debt.
There is however a requirement that the bond issues of any
agency, whether of general or limited obligation bonds, and if
not short-term, be approved at a local election.1*5
Each agency is also authorized to incur short term debt, both
through a general statutory authorization1*6 and through the
specific authorizations which exist for a number of agencies.1*7
Both the specific and general authorizations contain limitations
as to the amount of such indebtedness.1*8
2.4.2 Special Funds and Revenue Funding.
Waste treatment agencies are authorized to employ revenue bond
financing by specific legislation for each agency1* 9 and under
the terms of the Sewer Revenue Bond Act50 and the Revenue Bond
Act of 1941.51 There is no specified limit on the amount of
such indebtedness.
2.4.3 Other Methods of Financing.
Another method of local agency financing in use in California
is the long term lease-purchase agreement. If properly drafted,
such agreements permit the local agency to incur long-term in-
debtedness without the necessity of submitting the project to
the voters.5 2
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Local agencies may also construct and operate facilities through
joint exercise of powers agreements.53 Under this type of
arrangement, local agencies having the same powers with respect
to a given function may, by agreement,51* exercise that function
jointly. The entity responsible for administering such agree-
ments may be one of the parties, a corporation, or a separate
public agency created by the terms of the agreement. The admini-
stering agency may issue revenue bonds or other revenue secured
forms of indebtedness subject to the approval of the parties
to the agreement.55
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208(c)
(2) (G)] .
As discussed in the sections above, local management agencies
have authority to insure that each category of user will pay
its proportionate share of treatment costs. That authority
is also sufficient to insure that each participating community
pay its proportionate share of treatment costs where more than
one community lies within the jurisdiction or service area of
a given treatment agency. Where two or more agencies operate
facilities jointly, the terms of their agreement will set the
proportionate share of costs to be paid by each.
2.6 Authority to Refuse to Receive Any Wastes From Any Munici-
pality or Subdivision Thereof, Which Does Not Comply With
Any Provisions of an Approved Plan Under §202 Applicable
to Such Area. [ §208 (c) (2) (H)].
None of California's waste treatment agencies have specific
authority, to "cut off" service to existing municipalities
being served by their facilities. Further, it is unlikely that
such an action would be judically regarded as being within the
scope of their necessary and proper powers.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
It does not appear that California's waste treatment manage-
ment agencies can indefinitely refuse to provide services to
existing communities within their territorial jurisdictions.
Cities and counties, with their broader land use controls,
would however be in a better position than the other agencies
to achieve this effect through direct construction moratoria.
All of the agencies are in a strong position however with re-
spect to refusing service to areas lying outside their juris-
dictions.
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2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply With
the Areawide Plan.
As discussed in the section above, local agencies have
authority to assure that communities pay their appropriate
share of the agencies' costs of operation. However, this
is achieved by charges paid by service recipients within the
community rather than by the community itself. Surcharges
or penalties would be similarly apportioned. Absent a con-
tractual commitment for a community to pay the charges itself,
the treatment agencies have no authority to levy penalties or
surcharges against communities as corporate bodies.
Some waste management agencies have either civil or criminal
sanctions available for enforcement of their ordinances, but
these are designed to operate against individual violators
rather than against communities.56 Enforcement powers of the
regional and state agencies outlined in Part 1 above are not
available to the waste treatment agencies. Legislation will
be required to the extent that the sanctions required by
this provision of the federal act amount to more than mere
power to assess their increased costs against non-complying
communities.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
Each agency, through its general authorization to operate a
waste water treatment system is authorized to treat industrial
wastes. Agencies may, through a general provision of the Reve-
nue Bond Act of 1941, refuse to accept industrial wastes which
would "otherwise be detrimental to the treatment works or its
proper and efficient operation and maintenance."57 The pro-
vision authorizes agencies to require pretreatment and pay-
ment of excess costs to the system resulting from discharge
of industrial wastes which are not pretreated.
3.0 SUMMARY
California's waste water management agencies are not expressly
authorized to comply with all grant requirements of the Act.
In the areas of construction and operation of facilities,
grant utilization, revenue generation, and financing their
authority is clearly sufficient. While there is no equally
clear lack of authority in other areas, they lack explicit
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statutory authorization to perform certain of the functions
required by the amendment. They have no explicit authority
to recover the federal share of capital costs from industrial
waste dischargers. They do not have authority to cut off
service to any existing communities, or to assess penalty
charges to any community in excess of the costs of treating
its effluent.
3.1 Deficiencies
Legislation should be enacted to provide authority to recover
the federal share of capital costs from industrial waste dis-
chargers and to provide sanctions to be applied to communities
or subdivisions not in compliance with an areawide plan.
4.0 BIBLIOGRAPHY
1. Baldwin ed. , Legal Control of Water Pollution, 1 U.C.D.L.
Rev. (1969).
2. Beebe , Hodgman and Sutherland, Joint Powers Authority Revenue
Bonds, 41 S. Cal. L. Rev. 19 (1968).
3. Craig, California Water Law in Perspective, 68 Cal. Annot.,
Codes LXV (West 1971).
4. The Development of the California and Federal Water Pollution
Control Programs, 5 University of California, Davis Law
Review 234 (1972).
5. Regional Water Quality Control, 5 University of California,
Davis Law Review 272x (1972).
6. Robie and Hume, Practice Under California's New Porter-
Cologne Water Quality Control Act, 45 Los Angeles Bar Bull.
177 (1970).
7. Robie, Water Pollution: An Affirmative Response by the
California Legislature, Pac. L. Rev. I (1970) .
8. Symposium: The San Francisco Bay Area -- Regional Problems
and Solutions, 55 Cal. L. Rev. 695, 702-727 (1967).
9. Water Quality Control in California. A Regional Approach,
7 Cal. Western L. Rev. 138 (1970). ~~~
10. Mylroie, Flanagan and Hay, California Environmental Law
A Guide (2d ed. 1972, Center for California Public Affairs).
- 491 -
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FOOTNOTES
1.
2.
3.
4.
5.
6.
7,
8,
9,
10,
11,
12,
13,
14,
15.
16,
17,
Cal.
Cal.
Cal,
Cal.
Cal,
Cal,
Cal,
Cal,
Cal,
Cal,
Cal,
Cal,
Cal,
Cal,
Cal,
Cal,
Cal,
Gov. Code §12805, 12850 et, se£. (1963).
Water Code §§13140-13142 (1971).
§12162.
§13320.
13160, 13600-13608(1971); 13630(Supp. 1973)
Water Code
Water Code
Water Code
Water Code
Water Code
Water Code
Water Code
Water Code
Water Code
Water Code
Water Code
Water Code
Water Code
Water Code
Water Code
§13171(Supp. 1973) .
§§13200-13201(1971)
§13240-13241.
§13242.
§13263.
§13222.
§§13300 et seq.
§13301.
§13331.
§13350.
§13301.
§13360
A Regional Approach, 7
Water Quality Control in California:
Cal. Western L. Rev. 138(1970);
Symposium: The San Francisco Bay Area -- Regional Problems
and Solutions, 55 Cal. L. Rev- 695, 702-727(1967).
18. Cal. Water Code §12931.
19. Cal. Water Code §299.
20. Cal. Fish and Game Code §§5650, 12002, 12006, 12010.
21. Cal. Fish and Game Code §5661.
22. Cal. Health and Safety Code §5413.
23. Cal. Health and Safety Code §40011.
24. Cal. Health and Safety Code §§4016-4020.
25. Cal. Health and Safety Code §§4028, 4031-4035.
26. The State Water Resources Control Board is responsible
for setting training standards for treatment plant
operators. Cal. Water Code §§13625-13634 (Supp. 1973).
27. See the chart accompanying this report for a listing
and comparison of local agencies authorized to con-
struct and operate sewage collection and treatment sys-
tems. Cities and counties though not shown on the com-
parative charts are broadly authorized to acquire and
operate any public utility. Cal. Pub. Ut. Code §§10001
et seq.
28. Irrigation Districts, Cal. Water Code §§22078, 22176,
22230, 22301; California Water Districts, Cal. Water
Code §§35500, 35850.5; County Water Districts, Cal.
Water Code §§31047, 31100, 31005, 31049; County Water-
works Districts, Cal. Water Code §§55335, 55335.5, 55350
et seq.; Community Services Districts, Cal. Gov. Code
- 492 -
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§§61600, 61616; Municipal Utility Districts, Cal. Pub. Ut.
Code §§12801, 12721; Public Utility Districts, Cal. Pub.
Ut. §16461 though the statute here does not mention au-
thority to construct or design by contract the provision
cited authorized the district to do all things necessary
and convenient to the full exercises of its powers;
Municipal Water Districts, Cal. Water Code §§71610, 71670,
71740, 71592; Water Conservation Districts, Cal. Health
and Safety Code §§4740; 4741, 4742.2; Sanitary Districts,
Cal. Health and Safety Code § §6512",' 6'515; Cities and
Counties, Cal. Pub. Ut. Code §§10001 et seq., Cal. Gov.
Code §§43635, 23004. The management agency discussion in
this report is limited to those agencies listed in this
note. California has created numerous other districts for
specific areas by special legislation. Such districts have,
in some cases, waste treatment authority but are so
numerous as to be beyond the scope of this study. Texts
of statutes governing such districts are compiled in the
three volume appendix to the California Water Code.
29. Cal. Health and Safety Code §§4950-5072.
30. Cal. Gov. Code §§54300-54700; 8 Opinions of the Attorney
General 300.
31. Cal. Health and Safety Code §§5000, 5004; Cal. Gov. Code
§§54301, 54341, 54342.
32. Irrigation Districts, Cal. Water Code §§23195-23196;
California Water Districts, Cal. Water Code §§35875-
35876; Community Services Districts, Cal. Gov. Code
61624; Municipal Utility Districts, Cal. Pub. Ut. Code
§12844; Public Utility Districts, Cal. Pub. Ut. Code,
§16578; Municipal Water Districts, Cal. Water Code §71724;
Water Conservation Districts, Cal. Water Code §§74610-
74611; Sanitary Districts, Cal. Health and Safety Code
§6512.
33. Cal. Gov. Code §54610.
34. Cal. Water Code §13604.
35. Cal. Water Code §13600.
36. Cal. Water Code §13604.
37. Cal. Water Code §13604.
38. Cal. Water Code §13602,
39. Irrigation Districts, Cal. Water Code §§22177, 25500-26553;
California Water Districts, Cal. Water Code §§35501,
36550-37156; County Water Districts, Cal. Water Code
§§31101, 31650; County Waterworks Districts, Cal. Water
Code §§55501, 55335.5, 55700 et seq.; Community Services
Districts, Cal. Gov- Code §§61621, 61615, 61750 et seq.;
Municipal Utility Districts, Cal. Pub. Ut. Code
- 493 -
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Districts, Cal. Health and Safety Code §§4766, 5473-5473.11,
4747; Sanitary Districts, Cal. Health and Safety Code §§
6520.5, 6550.12-6550.14; Cities and Counties Cal. Gov.
Code §§43225, 29922 et seq.
40. Irrigation Districts, Cal. Water Code §22180; California
Water Districts, Cal. Water Code §§35506-35508; County
Water Districts, Cal. Water Code §§55331, 55333, 55335.5;
Community Services Districts, Cal. Gov. Code §§61621.5,
61622; Municipal Utility Districts, Cal. Pub. Ut. Code §§
12721; Public Utility Districts, Cal. Pub. Ut. Code §16461;
Municipal Water Districts, Cal. Water Code §§71590, 71592;
Water Conservation Districts, Cal. Water Code §74501; County
Sanitation Districts, Cal. Health and Safety Code §4766;
Sanitary Districts, Cal. Health and Safety Code §§6521,
6522; Cities and Counties (Revenue Bond Act of 1941), Cal.
Gov. Code §§54343, .54350, Cal. Water Code §31001; County
Waterworks .
41. Irrigation Districts, Cal. Water Code §24950; California
Water Districts, Cal. Water Code §35951, 36251; County
Water Districts, Cal. Water Code §§ 31370 et seq. ; County
Waterworks Districts, Cal. Water Code §55520; Community
Services Districts, Cal. Gov. Code §61613; Municipal Utility
Districts, Cal. Pub. Ut. Code §§12841, 13201; Public Utility
Districts, Cal. Pub. Ut. Code §16571; Municipal Water Dis-
tricts, Cal. Water Code §71852; Water Conservation Districts,
Cal. Water Code §§74790, 74791; County Sanitation Districts,
Cal. Health and Safety Code §4746; Sanitary Districts, Cal.
Health and Safety Code §6644; Cities and Counties, Cal. Gov.
Code §§43601, 43602, 29900.
42. California Const. Art. 16 §1.
43. California Const. Art. 11 § 18.
44. California Water Districts may not issue an amount in excess
of that authorized by state treasurer, Cal. Water Code § 36151;
Community Services Districts, 20 percent of assessed value of
all real and personal property within the District, Cal. Gov.
Code §61613; Municipal Utility Districts, 20 percent limit
Cal. Pub. Ut. Code § 12842; Public Utility Districts, 20 per-
cent limit, Cal. Pub. Ut. Code §16573, 16574; Sanitary Dis-
tricts, 15 percent limit, 20 percent if county assessor's
tax roll is used, Cal. Health and Safety Code §6651; Cities,
15 percent limit, Cal. Gov. Code §43605; Counties five percent
limit, Cal. Gov. Code §29909. No limit is stated for Ir-
rigation Districts, County Water Districts, County Water-
works Districts, Municipal Water Districts, Water Conser-
vation Districts, and County Sanitation Districts.
45. Revenue Bonds require simple majority approval. General
obligation bonds require either a simple majority or 2/3
- 494 -
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approval. Irrigation Districts, Cal. Water Code §21933;
California Water Districts, Cal. Water Code §35155; County
Water Districts, Cal. Water Code §§31425, 31481, 21933;
County Waterworks Districts, Cal. Water Code 5§55552, 55610,
Cal. Gov- Code §54386; Community Services Districts, Cal.
Gov. Code §61670; Municipal Utility Districts, Cal. Pub.
Ut. Code §13211; Public Utility Districts, Cal. Pub. Ut.
Code §§16815, 16816; Municipal Water Districts, Cal. Water
Code §§71853, 71950; Water Conservation Districts, Cal.
Water Code §§74850, 75065, 74975, Cal. Gov. Code §54386;
County Sanitation Districts, Cal. Health and Safety Code §
4764, 4805, Cal. Gov. Code §54386; Sanitary Districts, Cal.
Health and Safety Code §6644; Cities, Cal. Gov. Code §§
43614, 43652; Counties, Cal. Gov. Code §29908.
46. Cal. Gov. Code §§53852 e_t seq.
47. Irrigation Districts, Cal. Water Code §§24625, 24628.5;
California Water Districts, Cal. Water Code §§36400, 36408.4;
Community Services Districts, Cal. Gov. Code §§61743,
61749; Municipal Water Districts, Cal. Water Code §§71810,
71811, 781812; Water Conservation Districts, Cal. Water Code
§74950; County Sanitation Districts, Cal. Health and Safety
Code §4746.1; Cities and Counties, Cal. Gov. Code §§53821,
53822, 53840.
48. See statutes cited in note 47.
49. Irrigation Districts, Cal. Water Code §§25260, 25264;
California Water Districts, Cal. Water Code §35951, 36300;
County Water Districts, Cal. Water Code §31840; County
Waterworks Districts, Cal. Water Code §55610; Community
Service Districts, Cal. Gov. Code §61613.1; Public Utility
Districts, Cal. Pub. Ut. Code §16575; Municipal Water
Districts, Cal. Water Code §71853; Water Conservation Dis-
tricts, Cal. Water Code §§74975-74978; County Sanitation
Districts, Cal. Health and Safety Code §4805; Cities and
Counties, Cal. Gov. Code §§43648 et seq. , 53503. Neither
Municipal Utility Districts nor Sanitary Districts are spe-
cifically authorized to issue revenue bonds, but they are
authorized to do so under the Revenue Bond Act of 1941,
Cal. Gov. Code §§4307, 54349.
50. Cal. Health and Safety Code §§4950-5072.
51. Cal. Gov. Code §§54300-54700.
52. Dean V. Kuchel, 35 Cal. 2d 444, 218 P 2d. 521 (1950); City
of Habra v. Pellerin, 216 Cal. App. 2d 99, 30 Cal. Rptr.
752 (Dist. Ct. App. 1963); Lagiss v. County of Contra Costa,
223 Cal. App. 2d 77, 35 Cal. Rptr. 450 (Dist. Ct. App. 1963);
County of Los Angeles v. Nesvig, 231 Cal. App. 2d 603, 41
Cal. Rptr. 918 (Dist. Ct. App. 1965); Beebe, Hodgman and
- 495 -
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Sutherland, Joint Powers Authority Revenue Bonds, 41 S.
Cal. L. Rev. 19 (1968) .
53. Cal. Gov. Code §6502; Beebe, Hodgman and Sutherland, supra
note 52.
54. Cal. Gov. Code §6506.
55. Cal. Gov. Code §§6546 ejt seq.
56. Cal. Health and Safety Code §§6523.01, 4766, 4766.5; Cal.
Pub. Ut. Code §§13575, 13576.
57. Cal. Gov. Code §54739.
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
HAWAII REPORT
(1973)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Hawaii's primary water pollution control agency is the Depart-
ment of Health. In addition to numerous responsibilities in
other areas, it performs the following water quality control
functions:
1. promulgates rules and regulations controlling and pro-
hibiting water pollution (as well as air, noise, solid
waste, and other forms of pollution);
2. issues waste discharge permits and variances;
3. issues cease and desist orders to persons violating the
state environmental quality act or any rules or regulations
promulgated there under;
4. institutes civil actions to enjoin violations of the act;
5. establishes water quality and effluent standards;
6. requires submission of plans or reports on new or existing
wastewater treatment facilities;
7. conducts and supervises programs of research, education and
training in the area of water pollution control;
8. holds hearings, institutes legal proceedings, enters and
inspects any building or place (though under a requirement
to protect confidential information) as necessary to
control or abate water pollution;
9. cooperates with and receives grants from the federal ga
ment (with the approval of the governor), and administers
program of state grants for the construction of waste treat
ment facilities.1
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The Office of Environmental Quality Control is an advisory
agency which advises the governor on all matters related to
environmental quality control; coordinates activities of state
agencies in that area; develops a state-wide environmental
quality monitoring system; conducts or arranges for environmental
research, and recommends long range programs and environmental
research.2 The Environmental Council is an advisory agency
with local government participation which serves as liaison
between the Office of Environmental Quality and the public.3
Also involved in water quality control is the Department of
Transportation which is responsible for making rules and regu-
lations to prevent discharges of waste into state waters either
from vessels or from pipes or storage tanks on land.4
Waste treatment is a local function in Hawaii carried out by
county or city and county governments.
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1.2 Schematic Diagram of Existing Agencies
Governor
Department of
Health
I
Environmental Health
Division
Air Sanitation
Branch
Food and Drug
Branch
Occupational and
Radiological
Health Branch
Office of
Environmental Quality
Environmental
Council
Department of
Transportation
Sanitary Engineering
Branch
Sanitation Branch
Vector Control Branch
- 499 -
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208 (c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
This analysis covers counties and the city and county of Honolulu,
which constitute all of Hawaii's wastewater treatment agencies.
The capacity of each agency is considered with respect to each
of the grant eligibility requirements discussed below.
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and Ex-
isting Works as Required by Any Areawide Plan. [§208(c)
(2) (C)] .
Hawaii's counties, and the city and county of Honolulu are all
authorized to construct, operate and maintain sewerage systems
either directly or by contract.5
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
The governing body of any county, or its planning commission
or department with the consent of the county board of supervisors
may receive any funds from the federal government or any other
public body in connection with projects being undertaken pursuant
to its powers.6
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [ §208 (c) (2) (E)].
Counties are authorized to levy both special assessments for
improvements such as sewage systems and to levy general property
taxes without limit.7 They are also authorized to assess and
collect sewage treatment service user charges.8
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)].
In addition to a general authority to assess and collect charges
for waste treatment services, Hawaii's county governments are
granted authority to perform such acts as are necessary and
- 500 -
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proper for the full exercise of their powers.9 These two grants
of authority are sufficient to comply with the requirements
of the Act. In addition there is explicit authority for Honolulu
to base the charges on volume and quality of effluent treated.10
2.3.2 Full Recovery Will Be Had from the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works Reason-
ably Attributable to Treatment of Such Industrial
Wastes. [§204 (b) (1) (B)].
There is no specific authority for such recovery. However
the counties are authorized to enter into agreements with
the federal government.11 Its authority also extends to ex-
pending its charge revenue to pay obligations for which such
revenue has been pledged.12 The two provisions in combination
may permit the counties to recover the federal share of capital
costs from industrial users to the extent that such, costs are
attributable to processing their wastes, however, specific
legislation on this point would make this authority more clear.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F)] .
The counties have this authority as described in paragraph 2.4.1
and 2.4.2 below.
2.4.1 General Obligation Funding.
Counties are authorized to issue general obligation bonds if
approved by the county board of supervisors, though debt of
this type may not exceed 15% of the assessed value of taxable
real property within the county.13 They are also authorized,
with approval of the Governor, State Director of Finance, and
the board of supervisors, to incur short term obligations in
excess of their monies available in a given year subject to a
$100,000 limit ($250,000) for City and County of Honolulu)
and to pay such liabilities by borrowing from the state.14
2.4.2 Special Funds and Revenue Funding.
The counties are authorized to issue revenue bonds, without
limitation on amount, to finance waste treatment facility
construction.15
- 501 -
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2.4.3 Other Methods of Financing.
State grants are available to aid construction of projects as
described in paragraph 1.1.
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c)(2)(G)].
Counties, through the terms of their authority to assess charges,
have sufficient implied authority to comply with this require-
ment.
2.6 Authority to Refuse to Receive Any Wastes from Any Munic-
ipality or Subdivision Thereof, Which Does Not Comply With
Any Provisions of an Approved Plan Under §202 Applicable
to Such Area. [§208 (c) (2) (H)] .
Counties have no authority, express or implied, to cut off
waste treatment services to a community currently connected to
its waste treatment system. Furthermore, it is unlikely that
such action would be judicially regarded as being within the
scope of their necessarily implied powers. The authority,
noted in Section 1.1 above, of the state department of health
to regulate waste discharges through the mechanism of discharge
permits is essentially the power to refuse to receive wastes.
Though this required power is possessed by a state regulatory
agency rather than by a local management agency, the state
minimally complies with this requirement.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect). .
Counties are empowered to do all things necessary to execute
their powers.16 Where the non-compliance of a community with-
in their jurisdictions would result in damage to or overloading
of their waste disposal systems or endanger public health, re-
fusal to connect such a community would be within their statutory
authority. This conclusion is supported for the counties of
Honolulu and Kauai by statutes empowering them to regulate sub-
divisions to ensure adequate provision for sewage disposal.17
- 502 -
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2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
No sanctions exist which would be applicable to municipali-
ties by the counties as the charge system and penalties for
violation of ordinances are designed to affect individuals.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
Authority of the counties to provide waste treatment services,
discussed in Section 2.1 above, is sufficient to permit
them to treat industrial wastes. Requiring pretreatment of
industrial wastes is reasonably within the power of the
counties where such pretreatment is necessary to protect the
proper operation of their waste treatment facilities.18 Ab-
sent such pretreatment the counties would necessarily be em-
powered to refuse industrial wastes in order to execute
their waste treatment function.
To the extent that the information available through moni-
toring and reporting is necessary to assess charges or oper-
ate facilities efficiently, requirements for monitoring and
reporting are within the counties' necessary powers. There
is no provision for protecting secret industrial processes
but no authority is apparent which would allow industrial
dischargers to withhold required information in the absence
of such a protective provision.
3.0 SUMMARY
Hawaii's counties are generally in compliance with the re-
quirements of the Act. However, legislation is advisable to
clarify and strengthen their authority in certain areas.
3.1 Deficiencies
Counties should be clearly authorized to recover from industri-
al waste dischargers the federal portion of the capital cost of
new facilities attributable to treatment of their wastes.
Sanctions should be provided against noncomplying communi-
ties. Specific authority should be provided allowing the counties
- 503 -
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to require pretreatment, monitoring and reporting by industrial
dischargers. In support of such authority, legislation should
be enacted requiring counties to treat data on industrial dis-
charges as confidential if so requested by the reporting com-
pany.
FOOTNOTES
1. HRS §§342-1 through 342-20, 342-31 through 342-34
(Supp. 1972) .
2. HRS §§341-3, 341-4 (Supp. 1972).
3. HRS §§341-3, 341-6 (Supp. 1972).
4. HRS §266-3(6).
5. HRS §§49-3, 61-2, 64-91, 64-94, 70-77, 70-96 (1968).
6. HRS §46-7.
7. HRS §§47-16, 246-1 et seq.
8. HRS §§67-1 e_t se£. , 61-2, 70-77.
9. HRS §§61-2, 70-70, 70-96.
10. HRS §70-77.
11. HRS §46-7.
12. HRS §49-10.
13. HRS §47-2 (Supp. 1972).
14. HRS §§46-46, 36-23; Const, of Hawaii, Art. VI §3.
15. HRS §§49-1 et seq.
16. HRS §§61-2(4), 70-96.
17. HRS §§65-22, 65-23, 70-71.
18. See statutes cited in footnote 16. Supra.
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
NEVADA REPORT
(1971)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Nevada's primary water quality control agency is the Commission
of Environmental Protection. Among its primary functions
in this area, the Commission:
1. adopts water quality standards;1
2. administers Nevada's water pollution control law through
its rules, orders and water and waste discharge stand-
ards ;2
3. may enter upon public or private property to inspect,
investigate and determine conditions relating to pol-
lution of any waters within the state;3
4. approves plans for construction and operation by poli-
tical subdivisions of sewerage systems and treatment
works and must be notified prior to any planned increase
of waste discharges by industrial or commercial discharg-
ers ; **
5. serves as the state water pollution control agency for
all purposes of the Federal Water Pollution Control
Act, and is authorized to take all steps necessary
to secure the benefits of that act for the state and
its political subdivision;5
6. accepts, supervises and administers loans and grants
for the federal government;6
7. holds hearings as it deems necessary and may require
reports from dischargers of materials which are or may
become deleterious to human or animal life;7
8. may order compliance with statutes or regulations and
initiate action to recover penalties for violation.
Such violation of a statute, rule or regulation is
a civil offense with a $2500 per day administrative
fine which may be levied by the Commission, or for
lesser violations a fine of up to $500 may be levied.
Fines are in addition to other enforcement actions;8
9. advises and consults with the federal government,
other states, interstate agencies, political subdi-
visions and industries affected by the state water
pollution control law and Commission policies.9
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Nevada has two other state level agencies with major water
pollution control responsibilities. The Department of Health,
Welfare and Rehabilitation, through its Bureau of Environ-
mental Health, is responsible for issuing permits for con-
struction upon or alteration of the shoreline of Lake Tahoe
and for discharge of treated water into the lake.10 The
Environmental Protection Hearing Board serves as an administra-
tive appellate agency for the Commission and for the Bureau
of Environmental Health.11
1.2 Schematic Diagram of Existing Agencies
Environmental
Protection Hearing
Board
Commission of
Environmental
Protection
Department of
Health, Welfare and
Rehabilitation
Bureau of
Environmental Health
- 506 -
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND
SELECTED RELATED SECTIONS OF THE ACT.
This analysis covers towns, cities, general improvement
districts, local improvement districts and counties which
constitute all of Nevada's waste water treatment agencies.
The capacity of each of these agencies is considered with
respect to the grant eligibility requirements discussed be-
low.
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and
Existing Works as Required by Any Areawide Plan. [§20
Nevada's waste water treatment agencies are authorized to
construct (directly or by contract) , operate and maintain
waste treatment facilities.12
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
Through authority contained in the Nevada Water and Sewer
Revenue Bond Law, all of the state's waste water treatment
agencies may accept contributions or loans from the United
States government or any of its agencies to finance construc-
tion, operation and maintenance of waste water treatment
facilities . * 3
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208(c) (2) (E) ] .
Nevada's waste water treatment agencies are authorized to
collect user charges for waste water treatment services and
to levy and collect both property taxes and special assess-
ments. k
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)] .
In addition to a genera authority to assess and collect
charges for waste water treatment services, Nevada's agencies
- 507 -
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have authority to perform such acts as are necessary and
proper for the full exercise of their powers.15 These
two grants of authority are sufficient to allow them to base
their user charges on the character, volume and rate of flow
of effluent treated. Therefore, they have authority to
structure their charge schedules to assure that each cate-
gory of user, residential, commercial or industrial, will
pay its proportionate share of the costs of operation and
maintenance of waste water treatment facilities. See also
paragraph 2.7 infra in which treatment of industrial wastes
is discussed.
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the
Federal Portion of the Construction Costs of
Treatment Works Reasonably Attributable to
Treatment of Such Industrial Wastes. [§204
(b) (1) (B) ] .
There is no specific legislation authorizing Nevada's waste
water treatment agencies to recover such capital costs solely
from industrial dischargers. To the extent that such re-
covery is required under the terms of a federal grant, it
is a cost which agencies may recover. Though only one class
of user will be subject to such cost recovery, the classi-
fication is a reasonable one in terms of avoiding use of
public funds to decrease private costs of industrial dis-
chargers. Specific legislation would be advisable, however,
to expressly authorize such an element of agency charges
to industrial dischargers.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c) (2) (F) ] .
Subject to the terms and limitations discussed in the
following sections, Nevada's waste water treatment agencies
have authority to incur long-term indebtedness. The agencies
may also incur short-term debt under provisions of their
organic statutes16 and of the Water and Sewer Revenue Bond
Laws.l7
2.4.1 General Obligation Funding.
All of Nevada's waste water treatment agencies are authorized
to issue long-term general obligation bonds under a variety
of amount limitations and electoral requirements.18
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2.4.2 Special Funds and Revenue Funding.
Under provisions of the Water and Sewer Revenue Bond Laws,
all of Nevada's waste water treatment agencies may issue
revenue bonds, without limit on amount, after receiving
majority electoral approval.19
2.4.3 Other Methods of Financing.
Counties and general improvement districts may issue special
assessment bonds.20 General improvement districts may borrow
from the state or federal governments without limit.2^
Cities, towns, counties and general improvement districts
may further secure their general obligation bonds by pledging
revenues to their payment.22 Counties may issue interim
warrants for construction of improvements (either general
obligation or revenue warrants) without an election if payable
from the general property tax of the fiscal year in which
issued.2 3
2.5 Authority to Assure in Implementation of Its Waste
Treatment Management Plan That Each Participating
Community Pay Its Proportionate Share of Treatment
Costs. [§208(c) (2) (G) ] .
Under Nevada's Interlocal Cooperation Act,24 any of the state's
waste water treatment agencies can contract with one or more
other agencies for the purpose of jointly operating treat-
ment facilities, or to sell or purchase the services of such
a facility. The contractual apportionment of treatment costs
will be acceptable for grant purposes as representing the
proportionate share of treatment costs attributable to each
service recipient. Therefore, in such cases the agreement
will assure that each participating community will pay its
proportionate share of treatment costs. Where a facility
serves only a single community, the agencies, by the terms
of their authority to assess user charges25 have sufficient
authority to comply with this requirement.
2.6 Authority to Refuse to Receive Any Wastes From Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§ 208(c) (2) (H) ] .
None of Nevada's waste water treatment agencies have speci-
fic authority to "cut-off" service to municipalities or
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subdivisions being served by their facilities. Further,
it is unlikely that such an action would be judicially re-
garded as being within the scope of their necessary and pro-
per powers. The authority of the State Commission of En-
vironmental Protection to regulate waste discharges through
the use of waste discharge standards and permits could
include the power to refuse to receive wastes. Though this
required power is possessed by a state regulatory agency
rather than by a local management agency, the state may
minimally comply with this provision of the Act.
2.6.1 Authority to Deny New or Additional "Hook-ups"
(Moratorium Effect).
Nevada's waste water treatment agencies are not required to
connect their treatment facilities to communities or sub-
divisions outside their boundaries. With respect to such
communities or subdivisions they can deny new "hook-ups."
The power of the agencies to refuse to connect communities
or subdivisions within their boundaries is much more limited.
Further, as the noncompliance involved in such cases will
often be attributable to the agency itself the sanction of
denying new "hook-ups" would be meaningless.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply with
the Areawide Plan.
No sanctions exist which would be applicable to municipalities
or subdivisions as the charge system and penalties for
violation of ordinances are designed to operate against indi-
viduals. Additionally, where the violator is an unincorpora-
ted community or subdivision, there is no single individual
against which sanctions could be applied.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I) ] .
Any of Nevada's waste water treatment agencies may contract
with industrial or mining establishments to provide facilities
to reduce and abate industrial pollution in return for
periodic payments at least sufficient to cover the cost
to the agency of providing such services.26 More broadly,
the authority of the agencies to provide waste treatment
services, discussed in Section 2.1 above, is sufficient to
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permit them to treat industrial wastes. Requiring pre-
treatment of industrial wastes is within the agencies'
powers to the extent that pretreatment is necessary to pro-
tect the proper operation of their facilities. Absent such
pretreatment the agencies would necessarily,, be empowered
to refuse industrial wastes in order to execute their waste
treatment function.
3.0 SUMMARY
Nevada's waste water treatment agencies are largely in
compliance with the requirements of the Act. However, new
legislation would be advisable in certain areas to clarify
and strengthen their authority.
3.1 Deficiencies
The agencies should be given express authority to recover
from industrial T-.Taste dischargers the federal portion of the
capital cost of new facilities attributable to treatment
of their wastes. In addition, sanctions should be provided
fot use against noncomplying communities. Specific authority
should be provided for the agencies to require pretreatment,
monitoring and reporting by industrial dischargers.
4.0 BIBLIOGRAPHY
1. Water Pollution Control Plan; Fiscal Year 1973 (Undated,
Nevada Commission of Environmental Protection).
2. Shamberger, H.A., A Comprehensive Water and Related
Land Resources Plan for the State of Nevada, University
of Nevada, Center for Water Resources Research (1967).
FOOTNOTES
1. N.R.S. §§445.215, 445.220 (1971).
2. N.R.S. §§445.190, 445.195(5), 445.195(6).
3. N.R.S. §§445.205, 445.335(1), 445.335(2).
4. N.R.S. §§445.195(2), 445.270, 445.360(1).
5. N.R.S. §445.185.
6- N.R.S. §445.195(1). Such grants may not be expended
for any other purposes than those for which they were
provided.
7. N.R.S. §§445.195(7), 445.230, 445.235, 445.250, 445.360(2)
If material contained in such reports is certified con-
fidential, the Commission shall so hold it. N.R.S.
§445.255.
- 511 -
-------
8. N.R.S. §§445.320, 445.345(1), 445.340(2), 445.340(3),
445.375.
9. N.R.S. §445.195(3).
10. N.R.S. §§445.080, 445.090, 445.100.
11. N.R.S. §§445.285, 445.340(5).
12. General improvement districts, N.R.S. §§318.100, 350.370,
318.140; cities and towns, N.R.S. §§271.015, 271.265,
271.035, 266.285, 350.370; local improvement districts,
N.R.S. §§309.030, 309 .130(1) (b) , 350.370 (It should be
noted that no new local improvement districts could be
formed after 1967, N.R.S. §309.025); counties, N.R.S.
§§244.366, 244.865, 350.370 (Note that such operations by
counties are restricted by N.R.S. §§244.865, 244.366 to
areas outside the limits of incorporated cities and towns).
13. N.R.S. §350.370(6).
14. General improvement districts, N.R.S. §§318.200, 350.370(3),
350.373, 318.225, 318.350, 318.370; local improvement
districts, N.R.S. §§309.360(2), 350.370(3), 350.373,
309.360(3), 309.330, 309.160, 309.300(1); cities and
towns, N.R.S. §§266.285(3), 267.415, 350.370(3), 350.373,
266.600(3), 266.605; counties, N.R.S. §§244.807, 244.366,
350.370(3), 350.373, 244.150, 244.866.
15. General improvement districts, N.R.S. §§318.210, 318.170,
350.370(7); local improvement districts, N.R.S. §§309.130(4),
309.130(1) (d) , 350.370(7); cities and towns, N.R.S.
§§266.105, 350.370(7); counties, N.R.S. §§244.195,
244.357, 350.370(7).
16. General improvement districts may, on affirmative vote
of four district trustees, issue short-term notes,
warrants and interim debentures subject to the limita-
tion amount applicable to long-term general obligation
bonds. N.R.S. §§318.275, 318.280, 318.277. Subject to
approval of the State Board of Finance, local improve-
ment districts may issue short-term obligations maturing
in five years of less without a limitation on amount or
a popular vote. N.R.S. §§354.474, 309 .331(1) (a) , 354.618,
354.430. Where a county improvement costs less than
$25,000, the county may (without a bond issue) advance
the cost out of its general fund in no more than ten
annual installments. N.R.S. §§244.556 - 244.558.
17. The Water and Sewer Revenue Bond Law empowers the govern-
ing body of any of the agencies to authorize, by unani-
mously adopted resolution, short-term financing for the
purpose of meeting a great necessity or emergency,
without vote by the electors. Before passage of such a
resolution, the intent to do so must be noticed to the
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18. General improvement district general obligation debt
may not exceed the value of taxable property (excluding
motor vehicles) of the district. A simple electoral
majority is required to authorize bond issues. N.R.S.
§§318.275, 318.277, 318.305. General obligation indebted'
ness of cities and towns may not exceed thirty percent
of the value of the taxable property within the muni-
cipality for bonded debt, and twenty percent for non-
bonded debt. Majority approval of the local bond com-
mission is required to authorize bond issues. N.R.S.
§§266.600(4) , "267.400, 266 . 600(4) (a) , 350.004. Local
improvement districts may issues bonds with simple elec-
toral majority approval. N.R.S. §§309.331, 309.336.
General obligation indebtedness of counties (excluding
short-term debt and assessment bonds) may not exceed
ten percent of the value of the taxable property within
the county. Majority approval of the local bond com-
mission is required to authorize bond issues. N.R.S.
§§244.805, 350.004.
19. N.R.S. §§350.370(3), 350.380.
20. N.R.S. §§318.460, 244.866.
21. N.R.S. §318.339.
22. N.R.S. §§318.325, 244.806, 266.600, 267.400.
23. N.R.S. §§244.883, 244.805.
24. N.R.S. §§277.080 - 277.180.
25. See statutes cited at Note 3 supra.
26. N.R.S. §350-370 (5) .
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REGION X
-------
PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
ALASKA RFPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Alaska's primary statewide agency for water pollution con-
trol is the Department of Environmental Conservation. Its
functions in protecting the quality of Alaska waters include:
1. formulation and review of the State Environmental Plan,
including water pollution control;1
2. reviews of programs and actions of other state depart-
ments as to their effect on water quality;2
3. adoption of water standards;3
4. adoption of regulations to control water pollution,
protect water supplies, and to govern collection and
disposal of sewage and industrial waste;4
5. action as the official state agency in all matters
affecting the purposes of the Department under
Federal law;5
6. issuance of permits to waste dischargers, either for
direct disposal or discharge into a sewage system;6
7. making studies and surveys in furtherance of its water
quality function.7
The Department is empowered to enforce its regulations and
standards through compliance orders or by ordering immediate
abatement of serious pollution conditions. Its agents are
authorized to enter facilities, inspect for compliance or for
sources of pollution, and to obtain search warrants for such
purposes.8 Pollution of state waters is a misdemeanor punishable
by fines up to $25,000 or a year's imprisonment or both.
Further, polluters may face civil penalties of from $5,000 to
$100,000.5
Among other state agencies charged with water quality
control functions is the Department of Health and Social
Services. The Department carries out a program for con-
struction of waste disposal facilities for villages without
charge to users for construction costs. After construction,
ownership of the facility is transferred to the governing
body of the village.10 Persons intending to use or divert
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state waters must notify the Department of Fish and Game
of his plans for approval. Failure to do so may result in
civil or criminal penalties.11 The Department of Natural
Resources has numerous functions relating to state waters.
However, it is concerned with water rights rather than with
water quality.12 The Water Resources Board, of which the
commissioner of the Department of Natural Resources is
executive secretary, advises the Governor on the use, appro-
priation and protection of the waters of the state.13 The
Public Utilities Commission sets standards, regulates, and
reviews activities of the state's public utilities, including
waste treatment agencies.11*
Except for the duty of the Department of Health and Social
Services to construct treatment facilities for villages,
construction and operation of waste treatment facilities is
an exclusively local function exercised by the cities, vil-
lages and boroughs (counties) of the state.15 Waste treat-
ment systems are limited in area to the organized boroughs,
but may include more than one municipality.
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1.2 Schematic Diagram of Existing Agencies
Water Resources
Board
Department of
Natural Resources
Department of
Environmental
Conservation
Department of
Health and
Social Services
Department of
Fish and Game
Public Utilities
Commission
i
Ul
i-1
to
-------
2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND
SELECTED RELATED SECTIONS OF THE ACT.
The agencies primarily discussed in this section are Alaska's
first and second class cities and boroughs . The capacity
of each of these agencies is considered with respect to the
requirements of the Act below.
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and
Existing Works as Required by Any Areawide Plan.
[§208(c) (2) (C) ] .
Alaska's wastewater treatment agencies are authorized to
operate and maintain sewage treatment services.16 Authori-
zation to do so by contract, where not stated, is included
by necessary implication in the general authorization to
provide for sewage treatment.17
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
Alaska's waste treatment agencies are not specifically
authorized to accept federal grants.18 The Department of
Environmental Conservation is authorized to administer local
grants under the Federal Water 'Pollution Control Act. Thus,
the waste treatment agencies are at least implicitly author-
ized to accept and utilize grants. Additionally, grants
will identify the agency or agencies to which funds are to
be disbursed. Therefore, in practical terms, Alaska's waste
treatment management agencies comply with this requirement.
It would be advisable, though not essential, that legisla-
tion be enacted to specify the terms under which local agen-
cies may accept and use grants.
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208 (c) (2) (E)] .
Rates and charges may be established for all municipal
public utilities.19 "All rates, charges and regulations
shall be reasonable and shall permit a fair and reasonable
^ return on invested capital.20" While this authority falls
' short of expressly authorizing rates based on the volume
and character of effluent, such rates should be allowed
since they are not "unreasonable."
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2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)].
Public utilities operated by Alaska's local governments may
maintain different charges to different users of its services
so long as such differences are not unreasonable.21 Further,
the general authority of each agency to assess charges is
sufficient authority to allow them to charge each category of
user for its share of treatment costs. As treatment cost is
a function of both the volume and character of effluent, the
authority to charge necessarily includes authority to base
charges on volume, character and rate of flows to the extent
that these factors differ between different categories of
users.
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [ §204 (b) (1) (B)] .
There is no specific legislative authorization permitting
such cost recovery. However, to the extent that such
recovery is required under the terms of a federal grant,
it is a cost which the treatment agency may recover. Re-
covering this amount from industry as a cost of furnishing
services to industry is reasonable in that it overcomes the
objection of using public funds to decrease costs of indus-
trial users of waste treatment facilities. Legislation
would be advisable to explicitly authorize such charges.
2.4 Authority to Incur Short- and Long-term Indebtedness
[§208(c) (2) (F)] .
Waste treatment agencies possess bond issuing authority
which is broad enough to encompass incurring both short-
and long-term indebtedness.
2.4.1 General Obligation Funding.
The agencies are authorized to incur debt funded by gen-
eral obligation bonds which pledge the full faith and credit
of the municipality-22 Such bonds must be approved by
a majority of those voting on the question.2 The interest
rates, maturities, and manner of execution of the bonds is
fixed by the assembly or council of the municipality-21*
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2.4.2 Special Funds and Revenue Funding.
Revenue bonds can be issued by municipalities for the
purpose of constructing capital improvements to be
operated upon a revenue-producing basis.25 No election
is required to authorize these bonds, and the assembly
or council fixes the interest rates, maturities and other
terms.26
2.4.3 Other Methods of Financing.
Municipalities are also empowered to issue revenue anti-
cipation notes and bond anticipation notes which must ma-
ture within one year.27
2.5 Authority to Assure in Implementation of Its Waste
Treatment Management Plan That Each Participating
Community Pay Its Proportionate Share of Treatment
Costs. [§208(c)(2)(G)].
The waste treatment agencies, through the terms of their
authority to assess user charges28 and to jointly operate
facilities, have sufficient implied power to comply with
this requirement.
2.6 Authority to Refuse to Receive Any Wastes from Any
Municipality or Subdivision Thereof, Which Do'es Not
Comply with Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [ § 208 (c) (2) (H)] .
None of Alaska's wastewater treatment agencies have speci-
fic authority to "cut off" service to municipalities or
subdivisions being served by their facilities. Further,
it is unlikely that such action would be judicially regarded
as being within the scope of their necessarily implied powers,
The authority, noted in Section 1.1 above, of the state
department of environmental conservation to regulate waste
discharges through the mechanism of discharge permits is
essentially the power to refuse to receive wastes. Though
this required power is possessed by a state regulatory agency
rather than by a local management agency, the state is
minimally in compliance with this requirement.
2.6.1 Authority to Deny New or Additional "Hook-ups"
(Moratorium Effect).
No specific authority exists to deny new or additional hook
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ups. However, the agencies are authorized to regulate acts
endangering the health and safety of the community.29
This authority is limited by a prohibition against maintain-
ing an unreasonable difference as to service between locali-
ties,30 and further by a requirement that a public utility
permit another public utility to use its facilities as dic-
tated by convenience and public necessity, where no sub-
stantial detriment to the facility or its service will
result.31 In face of these provisions, and absent any statu-
tory requirement to provide service in all cases, it appears
that the treatment agencies may deny new hook ups within
their jurisdictions where such action would not be unreason-
able in terms of efficient waste treatment management.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply with
the Areawide Plan.
Under their authority to assess charges, waste treatment
agencies may clearly assess surcharges and penalties which
amount to no more than the additional cost of treating a
municipality's wastes resulting from its non-compliance
with an area plan. This is supported by a provision allow-
ing a difference in rates as between that charged within a
service supplying community and that charged outside its
corporate limits.32 Where a municipality rather than its
inhabitants pays the charges, the charging agency will have
authority to assess increased charges, but only by the
amount of its increased costs. Where individuals pay the
charges no sanction is available against municipalities.
Such penal sanctions as local governmental agencies are
empowered to enforce apply only to individuals, not munici-
palities or subdivisions.
2.7 Authority to Accept for .Treatment Industrial Wastes.
[§208(c) (2) (I)].
The authority to provide waste treatment services, discussed
in Section 2.1 above, should reasonably be sufficient to
allow waste treatment agencies to treat industrial wastes.
The authority of waste treatment agencies to forbid by
ordinance acts endangering public health and safety, and
of public utilities rules and regulations governing conditions
under which they will render service34 permit the agencies
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and their utilities to refuse industrial wastes which would
damage the treatment works, to require pre-treatment and to
require reports on volume and character of effluents dis-
charged into the system by industry. These provisions are
also sufficient to permit enactment of ordinances requiring
industrial dischargers to monitor the volume, character, and
rate of flow of their wastes.
3.0 SUMMARY
Alaska's waste treatment management agencies are in com-
pliance with the studied provisions of the Act. However,
in certain areas enactment of legislation explicitly grant-
ing powers currently only implied would be advisable.
3.1 Deficiencies
Local government agencies should be clearly authorized to
recover from industrial users the federal portion of capital
costs allocable to treatment of their wastes. Sanctions
should be authorized which would be effective against com-
munities as well as individuals.
4.0 BIBLIOGRAPHY
None
FOOTNOTES
1. A.S. §§46.03.040, 46.03.060 (1971).
2. A.S. §46.03.020(2).
3. A.S. §§46.03.070, 46.03.080.
4. A.S. §46.03.020(10).
5. A.S. §46.03.020(9).
6. A.S. §46.03.100.
7. A.S. §§46.03.020(5).
8. A.S. §§46.03.020(6), 46.03.860.
9. A.S. §46.03.760.
10- A.S. §§46.07.010-46.07.040.
11. A.S. §§16.05.870, 16.05.880.
12. A.S. §§46.15.010 et seq.
13. A.S. §46.15.210.
14. A.S. §§42.05.010 et seq.
15. It should be noted that Alaska's local governmental
units are designed to provide governmental services for
large area units with small populations often sparsely
settled. The less populated of these units do not
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possess all of the powers envisioned by the proposed
amendment. However, the need for waste treatment
facilities in such areas is sufficiently limited that
their compliance or non-compliance with federal grant
requirements will not affect the compliance of the state
as a whole. This report is primarily concerned with
the more developed governmental units and will there-
fore be limited to consideration of first and second
class cities and boroughs. Pertinent authority of other
local governmental agencies will be included in the
footnotes, but will not be discussed in the text.
16. A.S. §29.48.030(2) (1972).
17. Femmer v. City of Juneau, 9 Alaska 175, affd 9 Alaska
315, 97 F 2d 649 (9th Cir. 1938).
18. However, all municipalities are specifically authorized
to enter into agreements with the United States. A.S.
§29.48.010(4). In addition, §29.58.040 authorizes
revenue notes in anticipation of federal grants.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
A.S.
Id.
A.S.
A.S.
A.S.
A.S.
A.S.
A.S.
A.S.
See
A.S.
A.S.
A.S.
A.S.
A.S.
A.S.
§29.48.060.
§42.05.391.
§§29.58.150, 29.58.180.
§29.58.160 (a) .
§29 .58.170 .
§29.58.200.
§§29.58.205, 29.58.210.
§§29.58.010, 29.58.070.
note 19 supra.
§29.48.035.
§42.05.301.
§42.05.311.
§42.05.391.
§29.48.035.
§42.05.291 (b) .
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
IDAHO REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
Idaho's primary water pollution control agency is the Depart-
ment of Environmental Protection and Health.1 The Department
is headed by an Administrator who is in charge of supervision
and administration. The actual functions of rule-making and
hearings are carried out by the Board of Environmental Protec-
tion and Health.2 This Board is composed of seven members
appointed by the governor with the consent of the senate.3
The Department, through the administrator and Board, has au-
thority over the broad functions of planning, standard setting,
regulating and enforcing the state pollution abatement program.1*
More specifically, the Department has the power to formulate
rules, regulations and standards, which then become state laws,
to issue licenses and permits for discharging effluents, and
to enforce all laws and regulations regarding environmental
protection.5
When it has reason to believe that a violation of any pollu-
tion laws has occurred, the Board can hold a hearing to inves-
tigate. Appeals from these hearings to the district court are
al-owed.6 If after the Board issues an order corrective mea-
sures are not taken, a civil action may be initiated to enjoin
the violator or compel compliance by a writ of mandamus.7 Pen-
alties of $1000 per day can also be imposed.8 The State Attorney
General is authorized to bring any criminal action requested
by the Board, and he may delegate this authority to a county
prosecuting attorney.9
Two other state agencies with water quality functions are the
Fish and Game Department and the State Board and Land Commis-
sioners. The Fish and Game Department enforces pollution
prohibitions included in the state's fish and game laws.10
The State Board of Land Commissioners regulates placer mining
to protect state land and waters11 and has appropriated to it
moneys received from the federal government for construction
of sewage treatment facilities on state owned lands.12
Though subject to state level planning and regulation, as dis-
cussed above, waste water treatment is primarily a local function,
carried out by Idaho's cities and sewer districts.
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1.2 Schematic Diagram of Existing Agencies
Governor
Department of
Fish and Game
Department of Environmental
Protection and Health
State Board of
Land Commissioners
Administrator
Board of Environ-
mental Protection
Local Treatment Agencies (Cities and
Sewer Districts)
2.0
ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208 (c) (2) AND
SELECTED RELATED SECTIONS OF THE ACT.
This analysis covers cities and sewer districts which constitute
all of Idaho's waste water treatment agencies. The capacity
of each agency is considered with respect to each of the
grant eligibility requirements discussed below.
2.1 Authority Directly or By Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [ 208 (c) (2) (C)].
Idaho's wastewater treatment agencies are authorized to construct,
directly or by contract, operate and maintain waste treatment
facilities.:3
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2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D)] .
Idaho's wastewater treatment agencies have authority sufficient
to comply with this requirement. Cities have express authority,
while sewer districts have implied authority.11*
2.3 Authority to Raise Revenues, Including the Assessment of
Waste Treatment Charges. [§208(c) (2)(E)].
Idaho's waste treatment agencies are authorized to collect
user charges for wastewater treatment and to levy both property
taxes and special assessments.15
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)].
In addition to a general authority to assess and collect charges
for wastewater treatment services, Idaho's sewer districts and
cities are authorized to perform such acts as are necessary and
proper for the full exercise of their powers.16 These two grants
of authority are sufficient to allow them to base their user
charges on the character, volume and rate of flow of effluent
treated. Therefore, they have implied authority to structure
their charge schedules to assure that each category of user,
residential, commercial, or industrial, will pay its approp-
riate share of the costs of operation and maintenance of waste -
water treatment facilities.
2.3.2 Full Recovery VJill Be Had From the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of Such
Industrial Wastes. [ §204 (b) (1) (B)] .
There is no specific legislation authorizing either sewer dis-
tricts or cities to recover such capital costs solely from
industrial dischargers. To the extent that such recovery is
required under the terms of a federal grant, it is a cost which
agencies may recover. Though only one class of user will be
subject to such cost recovery, the classification is a reason-
able one in terms of avoiding use of public funds to decrease
private costs of industrial dischargers. Legislation would be
advisable, however, to explicitly authorize such an element of
agency charges to industrial dischargers.
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2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c)(2)(F)].
Subject to the terms and limitations discussed in the following
sections, Idaho's cities and sewer districts have authority to
incur both shcrt- and long term-indebtedness. With cities,
however, their short term borrowing capability is not express,
but their authority to incur long-term debt and power to con-
tract are broad enough to encompass incurring short-term debt.
2.4.1 General Obligation Funding.
Both cities and sewer districts may issue general obligation
bonds without a limit on amount, but bend issues must receive
two-thirds electoral approval.17
2.4.2 Special Funds and Revenue Funding.
Cities may issue revenue bonds without a lim.it on amount,
subject to the same electoral requirement applied to general
obligation issues.18 The authority of sewer districts to
issue revenue bonds is embodied in a provision allowing the
district board to determine provisions for bond repayment.
Thus, the districts may issue revenue bonds subject to the
limitations applicable to general obligation issues.19
2.4.3 Other Methods of Financing.
Beth' cities and sewer districts may issue local improvement bonds
or warrants with a maximum maturity of ten years.
2.5 Authority to Assure in Implementation of its Waste
Treatment Management Plan That Each Participating
Community Pay Its Proportionate Share of Treatment
Costs [§208(c)(2)(G)].
Sewer districts may cooperate with other agencies in construction
of facilities and other matters affecting their affairs.21
Cities may cooperate with other agencies in the exercise of
any of their powers,22 and may jointly construct and finance
wastewater treatment facilities.23 In any such joint or
cooperative venture, the contractual apportionment of treat-
ment costs should be acceptable for grant purposes as represent-
ing the proportionate share of treatment costs attributable to
each service recipient. Therefore, in such cases the treatment
agency will have authority to assure that each participating
community will pay its proportionate share of treatment costs.
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Additionally, both cities and sewer districts, through the
terms of their authority to assess user charges,24 have suffi-
cient authority to comply with this requirement.
2.6 Authority to Refuse to Receive Any Wastes From Any
Municipality of Subdivision Thereof, Which Does Not
Comply With Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§208 (c) (2) (H)] .
None of Idaho's v/astewater treatment agencies have specific
authority to "cut off" service to municipalities or sub-
divisions being served by their facilities. Further, it is
unlikely that such action would be judicially regarded as being
within the scope of the agencies' necessarily implied powers.
However, the authority, noted in section 1.1 above, of the
the state board of health to regulate waste discharges through
the mechanism of discharge permits is essentially the power
to refuse to receive wastes. Though this required power
is possessed by a state regulatory 'agency rather than by a
local management agency, the state minimally complies with
this requirement of the Act.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
Idaho's wastewater agencies are not required to connect their
facilities to communities or subdivisions outside their boundaries
With respect to such communities or subdivisions, they can deny
new "hook-ups." Their power to refuse to connect communities
or subdivisions within their boundaries is more limited. They
have, however, some regulatory powers in this area. Sewer dis-
tricts may prescribe and enforce rules and regulations govern-
ing connections with their facilities.25 Therefore, if the
non-compliance with an areawide plan is also non-compliance
with the district connection regulations, the connection could
be denied.
City zoning powers include zoning with the purpose of providing
adequate waste treatment.26 This power is one step removed
from denial of connections, but serves the same purpose. This
power is strengthened by the requirement that subdivision
developers must obtain approval of their sewerage facility
plans from the state board of health before they may file their
plat with the city.27 However, where the community or subdivi-
sion involved is not in the planning stage, but has already
been constructed, it should be noted that its non-compliance
- 531 -
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with an areawide plan will often be attributable to the city
or sewer district within which it is located. In such cases
the sanction of denying connection would not be practical.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or
Subdivisions Thereof Which Do Not Comply With
the Areawide Plan.
No sanctions exist which could practically be applied to
municipalities or subdivisions by the wastewater treatment
agencies. The charge system and penalties for violation
of ordinances were primarily designed to apply to individuals.
Further, where the violator is an unincorporated community
or subdivision, there is no single individual against which
sanctions could be applied.
2.7 Authority to Accept For Treatment Industrial Wastes.
[§208(c) (2) (I)] .
The authority of Idaho's agencies to provide wastewater treat-
ment services, discussed in section 2.1 above, is sufficient
to permit them to treat industrial wastes. Requiring pre-
treatment of industrial wastes is within the agencies' powers
to the extent that pretreatment is necessary to protect the
proper operation of their facilities. Absent such pretreatment
the agencies would necessarily be empowered to refuse indus-
trial wastes in order to protect their waste treatment function.
3.0 SUMMARY
Idaho's waste treatment agencies are in compliance with the
studied provisions of the act. However, in some areas legisla-
tion would be advisable to explicitly grant the agencies
powers currently only implied.
3.1 Deficiencies
Legislation should be enacted to explicitly authorize Idaho's
cities and sewer districts to recover from industrial dischargers
the federal portion of capital costs allocable to treatment
of their wastes. Sanctions should be authorized which could
be applied by the agencies to communities not in compliance
with an areawide plan.
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4.0 BIBLIOGRAPHY
1. Idaho Water Resources Research Institute and Division of
Continuing Legal Education, University- of Idaho, Short
Course on Legal Aspects and Responsibilities for Alloca-
tion of Water Resources (1969).
2. "Water Pollution Control in Idaho, State and Federal Laws,"
8 Idaho Law Review 94 (1971).
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
I.C.A.
Id.
I.C.A.
I.C.A.
Id.
I.C.A.
Id.
Id.
I.C.A.
I.C.A.
I.C.A.
I.C.A.
Sewer
cities
50-315
Sewer
I.C.A.
Sewer
FOOTNOTES
§39-104 (Cum. Supp. 1972).
§39-107 (Cum. Supp. 1972).
§39-105 (Cum. Supp. 1972).
§39-107 (Cum. Supp. 1972).
§39-109 (Cum. Supp. 1972).
§§36-1101, 36-1102 (1961).
§§47-1312, et seq. (Cum. Supp. 1972).
§58-141 (Cum. Supp. 1972).
districts, I.C.A. §§42-3212, 50-1706 (Cum. Supp. 1972);
, I.C.A. §§50-1030 (c) , 50-1706 (Cum. Supp. 1972),
, 50-301 (1967) .
districts, I.C.A. § 42-3212 (d) (Cum. Supp. 1972); cities
§50-301 (1967).
districts, I.C.A. §§42-3212(1) (Cum. Supp. 1972)
42-3213 (1943), 50-1717 (1967); cities, I.C.A. §§50-1032,
50-1717, 50-235, 50-236 (1967), 50-1030 (e) (Cum. Supp. 1972).
16.
17.
18.
19-
20-
21.
22.
23.
24.
25.
26.
27.
Sewer
cities
Cities
1972) ;
Supp.
Cities
I.C.A.
I.C.A.
I.C.A.
I.C.A.
I.C.A.
I.C.A.
I.C.A.
I.C.A.
I.C.A.
districts, I.C.A. §42-3212 (n) (Cum. Supp. 1972);
, I.C.A. §§50-302, 50-304 (1967).
, I.C.A. §§50-237 (1967), 50-1020, 50-1026 Cum. Supp.
sewer districts, I.C.A. §§ 42-3212 (e) , 42-3221 (Cum.
1972) , 42-3225 (1948) .
, I.C.A. §50-1028 et seq. (1967).
§42-3221 (Cum. Supp. 1972).
§50-1731 et seq. (Cum. Supp. 1972).
§42-3212 (d) (Cum. Supp. 1972).
§§67-2326 et seq. (1973) .
§§50-1022 et seq. (1967).
§§42-3212(1), 50-1030(e) (Cum. Supp. 1972).
§42-3212(1) (Cum. Supp. 1972).
§50-1201 et seq. (1967) .
§50-1326 (Cum. Supp. 1972).
- 533 -
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PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT,
OREGON REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies.
The agency charged with statewide water resources planning in
Oregon is the State Water Resources Board. It is responsible
for formulating "an integrated, coordinated state water re-
sources policy."1 However, its plan development is limited
by stated legislative policies which place little emphasis on
water pollution control.2 Currently Oregon has no statewide
structure of regional planning agencies for water pollution
control.
The Environmental Quality Commission sets quality standards
for the waters of the state.3 The Department of Environmental
Quality implements stream standards by issuing permits for
operation or construction of facilities, either public or
private, which discharge wastes into state waters.1* The De-
partment monitors waste discharges through monthly reports
required of permit holders as to the nature and amount of
their effluent discharges.5 The State Board of Health, as
a part of its responsibility for insuring the purity of water
supplies for domestic use, must approve any sewage system to
be built within the state,6 as must the Environmental Quality
Commission.7
The state level agencies mentioned above carry on investiga-
tion of water quality throughout the state as an adjunct of
their water quality control functions.8 Court enforcement,
civil or criminal, of state water quality requirements is
initiated through local courts by the state Water Resources
Board, the State Board of Health and the Environmental Quality
Commission through the offices of the Attorney General or
local district attorneys.9
As with planning, water pollution control management func-
tions have not been structured along regional lines.10 Ac-
tual management of treatment facilities and sewage systems
is exercised by a number of local governmental'entities.ll
Of Oregon's two interstate river compacts, Oregon-California
Goose Lake Interstate Compact and the Klamath River Basin
- 535 -
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Compact,12 only the Klamath River Basin Compact is specifically
charged with a water pollution control function. The agree-
ment, however, provides only for interstate action to identify
and order abatement of polluting facilities within the river
basin.l 3
The Department of Environmental Quality is authorized, as
required by the Act,14 to determine priorities for construc-
tion of wastewater management projects to be funded under the
proposed amendment.15
The Governor may authorize state agencies to apply for, accept,
and receive grants from any federal agency for federally spon-
sored projects deemed beneficial to the state. To the extent
that federal regulations relating to such grants are not in
conflict with Oregon Law, they shall be applicable. The gov-
ernor may authorize a state agency to supervise disbursement
of such funds. Expenditure of federal funds by the receiving
agencies is limited by the requirement that expenditures be
approved by the legislative assembly or the Emergency Board.
This approval may be given prior to receipt of such funds if
required by the terms of the grant.16
State agencies included within this authorization include any
water pollution control agency at least a part of whose costs
are paid from funds held in the state's general treasury.17
Thus, local agencies, which are funded locally are not covered
by the general grant provision. In addition to this general
authorization provision, the State Water Resources Board, the
Department of Environmental Quality, and the Environmental
Quality Commission are all specifically authorized by statute
to accept and use federal grants.18 Most local agencies in-
volved in wastewater management activities have been granted
authority to accept and use federal grants. These include
sanitary districts, Metropolitan Service Districts, towns and
cities. 9 County Service facilities and Sanitary Authorities
are authorized to accept and use federal grants for water pol-
lution control through a general authorization to cooperate
with the United States.20
- 536 -
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1.2 Schematic Diagram of Existing Agencies
State Board
Of Health
Department of Environmental Quality
Water
Resources
Board
Environmental Quality Commission
Office of the Director
Waste Discharge Permit
& Tax Credits Section
Solid Waste Program
Program
Operations
Water Quality
Control Division
Administrative
Section
Regional Program
Development Section
Municipal Sewage
Disposal Section
Operation,
Maintenance,
Training
Plan Review
Construction
Grants
Industrial Wastes
Section
Plan Review
Technical
Assistance
Water Quality
Studies
Permits
- 537 -
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS
SUCH RELATE TO CERTAIN PROVISIONS OF §208(c)(2) AND
SELECTED RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and
Existing Works as Required by Any Areawide Plan. [§208
(c) (2) (C)] .
Oregon's towns, cities, metropolitan service facilities, sani-
tary districts, and sanitary authorities are all authorized
to construct, operate and maintain wastewater treatment sys-
tems . 2 l
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c)(2)(D)].
Metropolitan service districts, towns and cities are authorized
to accept and use federal grants.22 County service facilities,
sanitary districts, and sanitary authorities are so authorized
by a general authorization to cooperate with the United States.2
However, while this interpretation depends on an opinion of
the state attorney general2 '* the wording of the statute is
sufficiently analogous to the wording of the Federal Act to
provide compliance with that provision:
May cooperate, by agreement or otherwise, with a unit
of local government or a state agency of this or an-
other state, or with the United States, or with a
United States governmental agency.25
Additionally, the State Water Resources Board, The Department
of Environmental Quality, and the Environmental Quality Com-
mission are all specifically authorized by statute to accept
and use federal grants,26 and, in the cases of the Commission
and the Board, they are required to use them in accordance
with the terms and conditions under which they were made avail-
able.27 Thus, in addition to specific grant acceptance capa-
bility of the state's local management agencies, the Board
and Commission may also be used as a means of channeling grants
for local or regional projects.
2.3 Authority to Raise Revenues, Including the Assessment of
tfaste Treatment Charges. [§208(c) (2) (E) ] .
All of Oregon's local wastewater management agencies are autho-
rized to assess and collect user charges and taxes.28
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2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [ §204 (b) (1) (A) ] .
In addition to a general authority to assess and collect charges
for waste treatment services, Oregon's local wastewater manage-
ment agencies are further authorized to do' all acts necessary
and proper to effect their waste treatment functions and gen-
erally to pass regulations and ordinances for such purposes.29
These grants of authority are sufficient to allow them to base
their user charges on the volume, delivery flow and character
of effluents treated. Therefore, they have authority to struc-
ture their charge schedules to assure that each category of
user residential, commercial, or industrial -- will pay its
appropriate share of the costs of operation and maintenance
of waste treatment facilities.
2.3.2 Full Recovery Will Be Had from the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works Rea-
sonably Attributable to Treatment of Such Indus-
trial Wastes. [§204 (b) (1) (B)] .
There is no specific legislative authorization permitting such
cost recovery. However, municipalities are authorized to enter
into and perform contracts with industrial establishments for
provision of waste treatment services, which contracts may in-
clude provision for payment by the industry of amounts suffi-
cient to cover both operational and capital costs of the pro-
vision of such services.30 Also, to the extent that such
recovery is required under the terms of a federal grant, it
is a cost which the management agency may recover. Though the
classification on which such recovery is based is a reasonable
one in terms of avoiding use of public funds to decrease costs
of industrial users of waste treatment facilities, legislation
would be advisable to explicitly authorize such a user charge
element.
2.4 Authority to Incur Short- and Long-Term Indebtedness
[§208(c)(2)(F)].
The local agencies discussed herein all have authority to incur
long-term debt,31 though in the case of county service districts
the county is the agency which actually issues bonds. Incor-
porated towns and cities, counties and county service districts
may incur short term debt for limited purposes. Sanitary dis-
tricts, sanitary authorities, and metropolitan service districts
- 539 -
-------
lack specific authority to incur short-term debt, but their
long-term authority is broad enough to encompass the capa-
bility to incur short-term indebtedness.
2.4.1 General Obligation Funding.
Incorporated towns and cities are authorized to issue general
obligation bonds for construction of waste treatment facilities
without a limitation on indebtedness.32 Sanitary districts
and sanitary authorities are also authorized to issue general
obligation bonds, but subject to the limitation that the amount
issued may not exceed 13% of the actual value of all assessable
property within their jurisdictions.33 Metropolitan service
districts may issue general obligation bonds subject to a 10%
limit,31* and counties and county service districts subject to
a 2% limit.35
2.4.2 Special Funds and Revenue Funding.
Incorporated towns and cities, metropolitan service districts,
counties, and county service districts are all authorized to
issue revenue bonds without a debt limit.36 Issuance of such
bonds by sanitary districts and sanitary authorities is sub-
ject to the same debt limit applied to general obligation
issues.3 7
2.4.3 Other Methods of Financing
The state constitution and implementing statutes authorize the
Environmental Quality Commission to sell general obligation
bonds of the state to create a fund to be advanced to local
waste treatment management agencies or state agencies for treat-
ment facilities which are estimated to be 70% self-supporting
from their revenues and from federal grants.38 There is a
fifty million dollar limitation on this authority.39 These
provisions are designed to ease the problem of financing the
local share of the costs of development of waste treatment
facilities."0
2.5 Authority to Assure in Implementation of Its Waste Treat-
ment Management Plan That Each Participating Community
Pay Its Proportionate Share of Treatment Costs. [§208
(c) (2) (G) ] .
Oregon's waste treatment management agencies, through the terms
of their authority to assess user charges and to jointly exer-
cise their powers, can comply with this requirement.1*1
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2.6 Authority to Refuse to Receive Any Wastes from Any Munic-
ipality or Subdivision Thereof, Which Does Not Comply
With Any Provisions of an Approved Plan Under §202 Ap-
plicable to Such Area. [ §208(c) (2) (H)].
None of Oregon's waste treatment management agencies have
specific authority to "cut off" service to municipalities
being served by their facilities. Further, it is unlikely
that such an action would be judicially regarded as being
within the scope of their necessary and proper powers.k2
The authority, noted in section 1.1 above, of the Depart-
ment of Environmental Quality to regulate waste discharges
through the mechanism of discharge permits is essentially
the power to refuse to receive wastes. Though this required
power is possessed by a state regulatory agency rather than
by a local management agency, the state is minimally in com-
pliance with this requirement.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
Denial of service to communities lying outside their terri-
torial jurisdictions is within the power of waste treatment
management agencies. Their capability to do so with commun-
ities within their jurisdictions is more limited. Further,
as the non-compliance involved in such cases will often be
attributable to the agency itself, denying new "hook-ups"
would not be a practical sanction.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
No sanctions exist which would be applicable to municipalities
or subdivisions as the charge system and penalties for viola-
tion of ordinances were primarily designed to operate on indi-
vidual violators. Further, where the violator is an unincor-
porated subdivision or community there is no single individual
against which sanctions could be applied.
2.7 Authority to Accept for Treatment Industrial Wastes.
[§208(c) (2) (I)] .
The terms of the agencies authorizations to operate waste treat-
ment systems43 are broad enough to permit them to treat indus-
trial wastes.
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While no express authority exists for the local agencies to
require pretreatment of industrial wastes, since such wastes
could cause damage to equipment, the power can reasonably be
implied from the general authority to maintain the disposal
facilities.4 4
3 . 0 SUMMARY
Oregon's waste treatment management agencies are in compliance
with the studied provisions of the Act. However, in certain
areas enactment of legislation explicitly granting powers cur-
rently only implied would be advisable.
3.1 Deficiencies
Waste treatment management agencies should be clearly authorized
to recover from industrial users the federal portion of capital
costs allocable to treatment of their wastes. Sanctions should
be clearly authorized which could be applied by the agencies
to communities not in compliance with an areawide plan.
4.0 BIBLIOGRAPHY
1. Bateson, The Water Gap - And a New Approach to Its Solution,
45 Or. L. Rev. 278 (1966) .
2. Department of Environmental Quality, Water Quality Control
in Oregon (1970).
3. Gearhart, Special Districts Local Government's Unorganized
Minority, 4 Willamette L.J. 482 (1967) .
4. Hallmark, Oregon's Water-Management Districts, 47 Or. L.
Rev- 16 (1967) .
5. Bonney, Oregon's Coordinated Integrated Water Resources
Policy., 3 Willamette L.J. 295 (1965).'
6. Beaufait and Collins, Financing Pollution Control Facilities
Oregon's Constitutional Amendment,1 Environmental Law 92
(1970) .
7. Staines, Waste Discharge Permits; No Defense to Water
Pollution Actions, 2 Environmental Law 181 (1971) .
- 542 -
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FOOTNOTES
1. ORS §536.300.
2. ORS §536.310. These policies are restricted to the main-
tenance of minimum stream flows and the planning of water
recreation facilities so as to safeguard against pollution.
3. ORS §449.086.
4. ORS §449.083.
5. ORS §449.083.
6. ORS §449.245.
7. ORS §449.395.
8. ORS §§449.215, 449.235, 449.082, 536.440, 536.520.
9. ORS §§449.055, 449.081, 449.097, 449.100, 449.103, 536.400.
The State Board of Health exercises its enforcement func-
tion administratively, ORS §§449.225 e_t seq. , as does the
Department of Environmental Quality through its power over
permits, ORS §449.083. See Staines, Waste Discharge Permits:
No Defense to Water Pollution Actions, 2 Environmental Law
181 (1971).
10. Bateson, The Water Gap - And a New Approach to Its Solution,
45 Or. L. Rev. 278 (1966).
11. Sanitary Districts and Authorities, ORS §§450.075 et seq. ;
County Service Districts, ORS §§451.010 et seq.; Towns and
Cities, ORS §§449.305 et seq., ORS §§224.010 et seq. ;
Metropolitan Service Districts, ORS §§268.010 et seq.
12. ORS §§542.510, 542.610.
13. ORS §542.610.
14. §204(a) (3) .
15. ORS §449.092.
16. ORS §§293.550, 291.260.
17. ORS §291.002.
18. ORS §§536.500, 449.035, 449.695.
19. ORS §§224.150, 268.540, 449.410.
20. ORS §190.110; 28 opinions of the Attorney General 195.
21. ORS §§450.075, 451.550, 450.830, 224.210, 268.310.
22. ORS §§224.150, 268.540, 449.410.
23. ORS §190.110.
24. 28 Opinions of the Attorney General 195.
25. ORS §190.110.
26. ORS §§536.500, 449.035, 449.695.
27. ORS §§536.500, 449.695.
28. ORS §§450.075, 450.885, 451.490, 224.040, 268.500 / 268.510,
450.130, 224.220, 450.840, 449.440, 451.500, 224.510,
268.540.
29. ORS §§224.020, 224.140, 450.075, 450.810, 450.815, 268.360
451.550.
- 543 -
-------
30. ORS §449.440. Gearhart, Special Districts - Local Govern-
31.
32.
33.
34.
35.
36.
37.
38.
39.
40. Beaufait and Collins, Financing Pollution Control Facilities
Oregon's Constitutional Amendment, 1 Environmental Law 92
(1970) .
41. ORS §§450.075, 450.130, 224.220, 450.840, 450.855, 449.440,
451.490, 451.500, 224.220, 224.510, 268.510, 268.540,
190.010.
42. ORS §§224.020, 224.140, 450.075, 450.810, 450-815, 268.360,
451.550.
43. See statutes cited at note 21 supra.
44. Id.
ment
ORS
ORS
ORS
ORS
ORS
ORS
ORS
Ore.
ORS
i
§
§
§
§
§
§
s Unorganized
287.404.
§449.410,
§450.075,
268.520.
§287.054,
§449.410,
§450.075,
Const. Art
449.672.
224.
450.
451.
224.
450.
. XI
Minority,
250.
095,
545.
230,
095,
- H,
450.
268.
450.
ORS
4 Willamette
120, 450.895,
520, 450.895,
120, 450.895,
§§449.670-695
L.J.
450.
451.
450.
482
900.
545.
900.
(1967)
- 544 -
-------
PLEASE REFER TO FORMAT
BEFORE READING THIS REPORT.
WASHINGTON REPORT
(1972)
1.0 OVERVIEW
1.1 Description of Existing Agencies
The agency responsible for water quality control in Washington
is the Department of Ecology. It exercises this responsibility
through its planning, regulatory, enforcement and grant manage-
ment functions with respect to the waters of the state.
In the planning area, the Department is authorized to make
studies dealing with all aspects of environmental problems
either by itself or in cooperation with the federal government,
other states or Canadian provinces. Absent legislative author-
ization, however, the Department may not implement such studies
by its own action.1 The Department is authorized to establish
sewage drainage basins for purposes of comprehensive planning
to control and abate water pollution within such basins.2 The
Department may require sewage treatment agencies to comply with
comprehensive basin plans.3 The Department is also charged with
developing plans to protect the state's ocean shoreline.4
The Department has numerous regulatory functions. It is empowered
to adopt rules and regulations necessary and appropriate to carry
out its statutory responsibilities to the extent that such rules
and regulations are consistent with known, available and reason-
able methods of preventing pollution.5 The Department sets
water standards by determining what qualities and properties
of water constitute a polluted condition.6 Prior to discharging
wastes into state waters, or even into municipal sewerage sys-
tems, industrial, commercial or municipal waste dischargers
must obtain permits from the Department.7 The Department may
specify the conditions for issuance of permits. As an additional
control on discharges of community wastes, the Department must
approve plans for construction or improvement of sewerage sys-
tems.8 The Department may delegate its permit granting authority
to cities, towns, or other municipal corporations.9 To insure
that permit requirements are being met, agents of the Department
are authorized to enter and inspect property of dischargers.10
In face of violations of its rules, regulations or orders, the
Department has a number of enforcement options available. After
- 545 -
-------
notifying the violator and giving an opportunity for a hearing,
the Department may issue such orders as it deems appropriate.
Where a discharge or threatened discharge creates an emergency
situation, the Department may order immediate discontinuance
of such discharge or, through the attorney general's office,
go to court to seek injunction or abatement.12 Further, there
are both civil and criminal penalties available, including
fines of up to $100 per day of violation, in the event of vio-
lations of state statutes, or rules and regulations of the
Department.l 3
The Department is designated as the state water pollution con-
trol agency for all purposes of the federal Water Pollution
Control Act, and is authorized to take all action necessary
to secure to the state the benefits of that act.11* It is also
authorized to render financial assistance to local treatment
agencies in the form of state grants for the purpose of provid-
ing state matching funds for federal grants.1
Other agencies engaged in state-wide water pollution control
are the Ecological Commission, acting to advise the Department
on environmental matters and to approve its rules and regula-
tions,16 and the Pollution Control Hearings Board of the State
which hears appeals from rules, regulations, orders, and deci-
sions of the Department
1 7
Though subject to state level planning and regulation, as dis-
cussed above, waste treatment is primarily a local function
carried out by Washington's cities, metropolitan municipal
corporations (Seattle Metro), towns, and, within the counties,
by sewer and water districts.
1.2 Schematic Diagram of Existing Agencies
Governor
Ecological
Commission
Department
of
Ecology
Pollution Control
Hearings Board
Public Services
Branch
Administration and
Planning Branch
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2.0 ANALYSIS OF EXISTING STATE WASTE TREATMENT MANAGEMENT
AGENCIES, INCLUDING THEIR POWERS AND AUTHORITIES, AS SUCH
RELATE TO CERTAIN PROVISIONS OF §208(c) (2) AND SELECTED
RELATED SECTIONS OF THE ACT.
2.1 Authority Directly or by Contract, to Design and Con-
struct New Works and to Operate and Maintain New and
Existing Works as Required by Any Areawide Plan. [§208
(c) (2)(C)].
Washington's cities, metropolitan municipal corporations,
towns, sewer districts and water districts are authorized to
construct, directly or by contract, operate and maintain waste
water treatment systems.
2.2 Authority to Accept and Utilize Grants, or Other Funds
From Any Source, For Waste Treatment Management Purposes.
[§208(c)(2)(D)].
All of Washington's waste water treatment agencies are author-
ized to accept grants from any federal agency for, or in aid
of, any public works project, and for drawings, surveys, en-
gineering and other preliminary matters, and to make any con-
tracts necessary for the furtherance of such projects.1 Also,
as discussed above in Section 1.1, they may receive state grants
to cover the non-federally funded portion of such projects.
2.3 Authority to Raise Revenues, Including the Assessment
of Waste Treatment Charges. [§208 (c) (2) (E)] .
Washington's waste treatment agencies are authorized to col-
lect user charges for waste water treatment services and to
levy both property taxes and special assessments-.20
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of any Waste Treatment
Services Provided by the Agency [§204(b) (1) (A)] .
The user charge authorizations of cities, towns and sewer and
water districts require that charges be uniform for the same
class of service or customer. Factors listed in the authori-
zations for consideration in classifying customers or services
are customer location, cost differences for different parts of
the system, quaitity, quality and rate of flow of effluent
delivered, different character of service supplied to different
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customers and any other matters presenting a reasonable ground
for distinction. Thus these agencies have clear authority
to structure their charge schedules to assure that each cate-
gory of user will pay its appropriate share of the costs of
operation and maintenance of waste treatment facilities. The
user charge authority of metropolitan municipal corporations
is phrased in general terms,22 However, such corporations
are granted all powers necessary to carry out their functions.23
To the extent that the volume character and rate of flow of
effluents treated by metropolitan municipal corporations are
necessary components of their charge schedules, they are em-
powered to so base their charges. Therefore, metropolitan
municipal corporations are also authorized to insure that each
category of user will pay its appropriate share of treatment
costs.
2.3.2 Full Recovery Will Be Had from the Industrial Users
of the Waste Treatment Works of the Federal Portion
of the Construction Costs of Treatment Works Reason-
ably Attributable to Treatment of Such Industrial
Wastes. [§204 (b) (1) (B) ].
There is no specific legislation for any of the agencies author-
izing them to recover such capital costs from industrial dis-
chargers. However, the classification on which such recovery
is based is a reasonable one in terms of avoiding use of public
funds to decrease the private costs of industrial dischargers.
To the extent that such recovery is required under the terms
of a federal grant, it is a cost which the agencies may recover.
Further, the agencies are specifically authorized to comply with
any rules and regulations made by the granting federal agency.
2.4 Authority to Incur Short- and Long-Term Indebtedness [§208
(c) (2) (F)] .
Each of Washington's waste treatment agencies is authorized
to incur debt funded by general obligation or revenue bonds.2 ^
Metropolitan municipal corporations are specifically authorized
to issue short term instruments.25 The general authorizations
of cities, towns, and sewer and water districts are broad
enough to encompass incurring both short- and long-term indebted-
ness.26
2.4.1 General Obligation Funding.
All of Washington's waste treatment management agencies are
authorized to issue general obligation bonds.27 All such
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agencies, except sewer districts, may issue general obligations
bonds without submitting such action to a vote of their elector-
ate where the resulting indebtedness of the agency will not ex-
ceed .75% (.5% for water districts) of the value of the taxable ,
property within the agencies' territorial limits.28 If issuance
of bonds is approved by 60% of the electorate voting on the
matter, the debt limit is 5% for cities, towns and metropolitan
municipal corporations and 2.5% for sewer and water districts.29
2.4.2 Special Funds and Revenue Funding.
All of the agencies are authorized to issue revenue bonds, with-
out a limitation on amount, to finance waste treatment facility
construction.30 No voter approval is required for issuance of
revenue bonds by cities, towns, and metropolitan municipal cor-
porations. Issuance of revenue bonds by sewer and water districts
must be approved by a simple majority of the electorate voting
on the matter.3l
2.4.3 Other Methods of Financing.
Cities, towns, and metropolitan municipal corporations may also
issue revenue warrants.32 Cities and towns may additionally
secure their revenue bonds by pledging special assessment reve-
nues to their payment.33
2.5 Authority to Assure in Implementation of Its Waste Treatment
Management Plan That Each Participating Community Pay Its
Proportionate Share of Treatment Costs. [§ 208(c) (2) (G)] .
While there is no express legislative authority for proportionate
rates, all waste treatment agencies, through the terms of their
authority to assess user charges, 3 "* should have sufficient au-
thority to comply with this requirement. In addition, there is
express authority for all cities, towns, or sewer districts to
contract with any other such entity for joint operation or con-
struction of sewage disposal facilities. The statute further
provides that the parties to such an agreement shall pay such
portions of the expenses as shall be agreed upon.35
2.6 Authority to Refuse to Receive Any Wastes From Any Munici-
pality of Subdivision Thereof, Which Does Not Comply With
Any Provisions of an Approved Plan Under §202 Applicable
to Such Area. [§ 208(c) (2) (H)] .
None of Washington's waste treatment agencies have specific au-
thority to "cut off" service to municipalities or subdivisions
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being served by their facilities. Further, it is unlikely
that such an action would be judicially regarded as being
within their necessary and proper powers.
2.6.1 Authority to Deny New or Additional "Hook-Ups"
(Moratorium Effect).
There is no statutory requirement that Washington's waste
treatment agencies connect their facilities with communities
outside their jurisdictions. With respect to communities or
subdivisions within their jurisdictions, the agencies are au-
thorized to do all things necessary and proper to execute their
waste treatment authority.36 Thus, it would be within their
power to refuse to connect such communities where their non-
compliance with an areawide plan would result in damage to or
overloading of treatment facilities. Where, however, the non-
compliance of a municipality or subdivision within an agency's
jurisdiction would not result in such damage or overloading,
its authority to deny service is much more restricted, and,
as the non-compliance would be legally attributable to the
agency itself, invoking such a sanction would be a meaningless
gesture. However, as discussed in Section 1.1 above, this au-
thority is possessed by the state Department of Ecology through
its power to regulate discharges to community wastes and to
issue permits therefor, and this power may be delegated to the
agencies.
2.6.2 Authority to Assess Penalties, Surcharges and
Similar Sanctions Against Municipalities or Sub-
divisions Thereof Which Do Not Comply With the
Areawide Plan.
No sanctions exist which would be applicable to municipalities
as the charge system and penalties for violation of ordinances
are designed to operate against individuals. Surcharges are
permissible to the extent that they reflect increased treatment
costs resulting from non-compliance, but the charge system is
also designed to affect individuals rather than communities.
In the event of several municipalities joining together to pro-
vide sewer services, their agreement could provide for sanctions,
2.7 Authority to Accept For Treatment Industrial Wastes.
t§208(c) (2) (I)].
The general authority of the agencies to provide waste treat-
ment services is sufficient to permit them to treat industrial
wastes. Requiring pretreatment of industrial wastes within
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their power where such pre-treatment is necessary to protect
the proper operation of their waste treatment facilities. Ab-
sent such pre-treatment, the agencies would necessarily be em-
powered to refuse industrial wastes in order to protect their
waste treatment function.
3.0 SUMMARY
Washington's waste treatment management agencies are for the
most part in compliance with the studied provisions of the Act.
However, in certain areas legislation would be advisable to
supply powers not possessed by the agencies or to explicitly
grant powers currently only implied.
3.1 Deficiencies
The agencies should be clearly authorized to recover from indus-
trial users the federal portion of capital costs allocable to
treatment of their wastes. Sanctions should be authorized which
could be applied by the agencies to communities not in compliance
with an areawide plan.
4.0 BIBLIOGRAPHY
1. Water Pollution Control in Washington, 43 Washington Law
Review 425 (1967).
2. 1971 Annual Report, Natural Resources and Recreation Agencies,
State of Washington (1971).
3. Department of Ecology, Implementation and Enforcement Plan
for Water Quality Regulations (1970).
4. Department of Ecology, Sewage Drainage Basin and Urban Area
Planning Guide for Water Pollution Control and Abatement
(2d ed. Sept. 1970) .
5. E. H. Haskell, Managing the Environment; Nine States Look
for New Answers 162 (1971).
FOOTNOTES
1. RCWA §§43.21A.130, 43.21A.150 (Supp. 1972).
2. RCWA §90.48.270 (Supp. 1972).
3. RCWA §90.48.280 (Supp. 1972).
4. RCWA §§90.58.010 et seq.
5. RCWA §§43.21A.080, 90.48.035 (Supp. 1972).
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6
7,
8
9,
10
11,
12.
13.
14,
15
16,
17,
18,
19
20
21
22,
23
24,
25,
26,
27.
RCWA §90.48.070 (1962).
RCWA §§90.48.160, 90.48.144 (Supp. 1972)
RCWA §90.48.110 (Supp. 1972).
RCWA §90.48.165 (Supp. 1972).
RCWA §90.48.090 (1962).
RCWA §90.48.120 (Supp. 1972).
RCWA §§90.48.240 (Supp. 1972), 90.48.060
RCWA §§90.48.140, 90.48.142 (Supp. 1972)
1972).
RCWA §§90.48.260, 43.21A.150 (Supp. 1972), 90
RCWA §§90.48.285, 90.48.290, 90.50.020 (Supp.
RCWA §43.21A.190 (Supp. 1972).
RCWA §43.216.110 (Supp. 1972).
Cities and Towns, RCWA §§35.92.020
35.23.352, 35.43.190 (Supp. 1972),
Corporations, RCWA §§35.58.050, 35
(1962).
90.48.144
48.153
1972).
(Supp.
(1962)
RCWA §
§56.08
1972) ;
,010, 56.08
35.67.020,- 35.21.010,
Metropolitan Municipal
58.180 (1965); Sewer
060 (1962), 56.08.020,
Water Districts, RCWA §57.08.065
35.30.010(1), 35.30.030
,350, 35.24.380,
Water
RCWA
RCWA
Districts,
56.08.070 (Supp.
(Supp. 1972).
RCWA §§39.28.020, 39.28.040 (1972).
Cities and Towns, RCWA §§35.30.020,
35.67.110, 35.23.440749), 35.24.340, 35.24
35.27.370(8), 35.43.010, 35.23.440(38), 35.23.440(50),
35.92.020, 35.67.020 (1965), 35.92.080, 35.22.280(2),
35.22.280(10), 35.22.280(13), 35.41.080, (Supp. 1972);
Metropolitan Municipal Corporations, RCWA §§35.58.090,
35.58.500 (1965), 35.58.200(4) (Supp.TIm) ; Sewer and
Districts, RCWA §§56.16.040, 56.20.010, 56.16.090 (1962).
§§35.92.020 (1965), 56.16.090 (1962).
§35.58.200(4) (Supp. 1972).
RCWA §35.58.180 (Supp. 1972).
Cities and Towns, RCWA §§35.30.060 (1965), 35.37.040,
35.22.280(4) (Supp. 1972), 35.41.030 et seq. (1965 & Supp.
1972); Metropolitan Municipal Corporations, RCWA §§35.58.450
(Supp. 1972), 35.58.490 (1965), Sewer and Water Districts,
RCWA §§56.16.010, 56.16.020, 56.16.035, 57.16.020, 57.16.030
(1962), 57.20.010, 57.20.020 (Supp. 1972).
RCWA §§35.92.100 (Supp. 1972), 35.58.490 (1965).
See statutes for those agencies cited in note 24 supra.
Cities and Towns, RCWA §§35.37.040, 35.22.280 (Supp. 1972),
35.37.050 (1965). Metropolitan Municipal Corporations,
RCWA §35.58.450 (Supp. 1972); Sewer and Water Districts,
RCWA §§56.08.050, 56.16.010, 56.16.040 (1962).
Cities and Towns, RCWA §39.36.020 (1972), Metropolitan Muni-
cipal Corporations, RCWA §35.58.450 (Supp. 1972); Water
Districts, RCWA §57.20.120 (Supp. 1972); The State Consti-
these statutory provisions
6 Amendment 27.
tution provision on which
based is Article VIII Section
are
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29. Cities and Towns, RCWA §39.36.020 (1972), Metropolitan
Municipal Corporations, RCWA §35.58.450 (Supp. 1972),
Sewer and Water Districts, RCWA §§57.16.020 (1962),
57.20.120, 56.16.050, (Supp. 1972).
30. Cities and Towns, RCWA §§35.41.010 et seq. (Supp. 1972)
Metropolitan Municipal Corporations, RCWA §35.58.460
(Supp. 1972); Sewer and Water Districts, RCWA §§56.16.020,
56.16.070 (1962), 57.20.010 (Supp. 1972); See also 1973
Regular Session Laws Chapter 132 for an ^ct authorizing
revenue bonds for construction of pollution control facili-
ties .
31. RCWA §§56.16.020, 57.16.030 (1962).
32. RCWA §§35.41.050, 35.58.490 (1965).
33. RCWA §35.41.095 (Supp. 1972).
34. See statutes cited in notes 21 and 22 supra.
35. RCWA §35.67.360 (1965).
36. Cities and Towns, RCWA §§35.22.280 (Supp. 1972), 35.23.440,
35.24.290, 35.27.370, 35.30.010 (1965); Metropolitan Muni-
cipal Corporations, RCWA §35.58.360 (1965); Sewer and
Water Districts, RCWA §§56.08.020 (Supp. 1972), 57.08.060
(1962).
ğU.S. GOVERNMENT PRINTING OFFICE: 1973 546-313/174 1-3 553 ~
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