Best Professional Judgment: A Synthesis of Environmental Law, Waste Discharge, Effluent Limitations and Engineering Ethics
Today's Best Professional Judgments (BPJs) are scrutinized closer than professional football players were when the National Football League allowed the referees to use instant replay to make judgment calls. However, by experience in the environmental field and by reading and applying a minimum base of references like The Environmental Law Handbook (Government Institutes, Inc.) and West's Environmental Law Statutes, one can see that environmental law is no game. According to The Environmental Law Handbook, "the environmental law system" is defined as "an organized way of using all of the laws in our legal system to minimize, prevent, punish or remedy the consequences of actions which damage or threaten the environment, public health and safety."
Where do BPJs fit into the environmental law system? If you are ever applying for an NPDES permit and believe that the monitoring requirements (for the waste your employer is discharging) are inadequate to yield accurate data, the regulations put the burden of requesting additional monitoring requirements, that are sufficient to achieve an acceptable degree of accuracy, on you.1
Since the situation of BPJ is most likely to arise pending promulgation of new limitations for toxic pollutants, or in connection with facilities for which no specific set of limitations is wholly applicable, it is necessary to understand how discharge levels and effluent limits are determined.
So, if you were the environmental engineer or designated by management as the person in charge of the facility discharging the wastes and you knew of a more accurate way for monitoring (although it meant additional costs to the company but protected the environment), what Best Professional Judgment do you make? Also, what criteria do you base your judgment on? If you hesitate to answer, or are unfamiliar with some of the terminology mentioned so far, read on.
The following topics may enter into your Best Professional Judgment:
- The Permit System
- Effluent Limitations
- Discharge Prohibition
- Determining Discharge Levels
- Required Treatments Based on Technology
- Engineering Ethics
The Permit System
NPDES stands for National Pollution Discharge Elimination System. It is a system of requirements to obtain permits for the commencement or continuation of any discharge of pollution to surface waters.
Perhaps the most distinctive element of the Clean Water Act regulatory framework, the NPDES permit program is coordinated with the prohibition to translate the blanket preclusion of all discharges into a set of sixty thousand or so specific conditional authorizations to discharge. In doing so, it defines for each individual discharger the permissible level of release into the waters of the United States.
It is one thing for you (or your employer) to meet projected production expectations, but a comparison to monitoring limits shows how well you did it within the law.
When a permit is issued prior to the publication of an effluent limitation, the determination of the precise effluent limitations to be included in a permit are to be based on "Professional Judgment." This is obviously more flexible than published rules.2 How would you make a Best Professional Judgment (BPJ)?
Since after the promulgation of limitations, the applicant may in certain cases seek modification of limits in the permit, there is considerable opportunity for the permitting authority to impose discharge limitations more stringent than the "base level" effluent guidelines. These limits are hiked when necessary to meet water quality standards, water quality related effluent limitations, the requirements of state planning processes, or other applicable limitations. Since there is considerable room for discussion regarding permit limits, a careful engineering analysis of proposed permit limits is a prerequisite to intelligent evaluation and negotiation of permit requirements. By the same token, once the permit has been issued on the basis of a BPJ and it proves more stringent than the promulgated regulations require, the 1987 amendments included an "anti-backsliding" provision that made it quite difficult to relax stringent permit conditions a discharger is actually meeting.3
Borrowing from the Refuse Act experience, the drafters of the Federal Water Pollution Control Act (later to become the Clean Water Act [CWA]) established at the new law's central core, a broad prohibition against "the discharge of any pollutant by any person..." except in compliance with the act's permit requirement, effluent limitations and other enumerated provisions.4
"Except as in compliance with...this title, the discharge of any pollutant by any person shall be unlawful."5 The term discharge of pollutant is defined as "any addition of any pollutant to navigable waters from any point source" and "any addition of any pollutant to the waters of contiguous zone or the ocean from any point source other than the vessel or floating craft."6
The basic intent is to regulate all pollutants discharged from any facilities and most contaminated areas into virtually all waters of the United States. Because it is difficult to imagine a release to surface water that would not fall within the prohibition's scope, it can be readily deduced that the issues in controversy7 have been pollutant, point source, and navigable waters.
These terms are significant to water pollution control and understanding the impact of engineering ethics related decisions to make BPJs.
Pollutant is defined in section 502(6) of the Clean Water Act, and includes only materials specifically listed in that section such as dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.8
Point source is defined in section 502(14) of the Clean Water Act as "any discernible, confined and discrete conveyance...from which pollutants may be discharged."9
Navigable waters are defined by act 33 U.S.C. 1362(7), to include all waters of the United States. The term "waters of the United States" is defined by EPA Regulations to include navigable waters; tributaries of navigable waters: interstate waters; intrastate lakes, rivers, and streams used by interstate travelers for recreation and other purposes, or which are a source of fish or shellfish sold in interstate commerce, or which are utilized for this purpose by industries engaged in interstate commerce.10 The intent of this definition is to cover all waters over which the broadest constitutional interpretation would allow the federal government to exercise jurisdiction; as in NRDC vs. Callaway (392 F. Supp. 685 D.D.C. 1975)e.11
Determining Discharge Levels
Three basic criteria are used to determine the level of control required at the point of discharge.
- We can require, that the effluent be treated to the limits available or practicable technology.
- We may require that the discharge be limited so as to maintain a specified level of quality in the receiving medium (for example, a level of water quality in a stream which is suitable for maintenance of a balanced population of fish, shellfish and wildlife for recreation).
- We may limit the discharge as may be necessary to minimize health risks (such as toxicity). Until applicable limits are formally established, the limits put in permits are determined on the basis of Best Professional Judgment.12
The CWA mandates a two-part approach to establishing effluent limitations for industrial discharges: nation-wide base-level treatment to be established through an assessment of what is technologically and economically achievable for a particular industry; and more stringent treatment requirements for specific plants where necessary to achieve water quality objectives for the particular body of water into which that plant discharges.13
Required Treatments Based On Technology
Section 301 directs the achievement for the establishment of nationally applicable technology-based effluent limitations on an industry by industry basis for existing discharges:
"...by July 1, 1997, of effluent limitations which will require application of the best practicable control technology currently available, and by July 1, 1983, of effluent limitations which will require application of the best available technology economically achievable."14
For the "New Source" direct dischargers, new source standards will govern the addition or replacement of certain equipment at an existing discharger.15
Accordingly, in section 306 new source performance standards (NSPS) 306(a)(1) of the act defines "standard of performance" as:
"A standard for control of the discharge of pollutants which reflects the greatest degree of effluent reduction...achievable through application of best available demonstrated control technology, processes, operating methods, and other alternatives, including, where practicable standards permitting no discharge of pollutants."16
It is not difficult to see how knowing the difference between existing discharges and new discharges will make a difference in one's BPJ.
Section 306 shows that EPA considers not only pollution control techniques but other factors such as alternative product processes. For further definition, BAT, BCT, BPT, are the related control technologies EPA recognizes:
Best Available Technology (BAT) is defined by EPA as the "very best control and treatment measures that have been or are capable of being achieved."
The Best Conventional Technology (BCT) limitations were to be adopted by EPA based on a consideration of the reasonableness of the relationship between the cost of attaining a reduction in effluents and the effluent reduction benefits that will result.17
EPA has defined Best Practicable Technology18 (BPT) as the "average of the best existing performance by well-operated plants within each industrial category or sub category."
The legal ramifications of those not educated in making Best Professional Judgments are often seen in the headlines of your local newspapers. What we do not read often are the daily intentional negligent actions "behind closed doors" by professionals aimed at only making money. Preventing such deceptive actions in engineering is the essence of engineering ethics.
The dilemma with environmental wastes is the ongoing potential for inaccurate engineering analyses. The validation of the analyses not only hinges on the competence of the individual performing the engineering analysis, but also of the individuals understanding and belief in the Code of Conduct for his profession and engineering ethics while performing this engineering analysis. Therefore, engineering ethics and a profession's Code of Professional Conduct are the catalysts for sound Best Professional Judgments. These judgments will pave the political landscape for the future of companies who are discharging wastes.
Principles of BPJ Training
Since June of 1993, when Roger Brauer, PhD, PE, CSP, of the Board of Certified Safety Professionals (BCSP) and Author of Safety and Health for Engineers, encouraged me to embrace Gilbane Gold, a video produced by the National Society of Professional Engineers' (NSPE) National Institute for Engineering Ethics (NIEE), I have taught the intertwining concept of the Certified Safety Professional's obligation to hold to the Board of Certified Safety Professionals (BCSP) Code of Professional Conduct, and engineering ethics.
Starting at the first Certified Safety Professionals (CSP) examination preparation course I taught in 1993, the principles for BPJ Training evolved. My lesson plan included the National Society of Professional Engineers' (NSPE) Code of Ethics for Engineers. As part of preparing individuals for the Regulatory portion of the CSP examinations, I emphasized that a judgment without consideration to ethics may be a judgment without value when efforts are aimed at protecting the public and the environment.
From the practice examination results, and later their testimonies, it was easily seen that participants learned that regardless of the title of their position, it was their duty to hold paramount the safety, health and welfare of the public, the environment, and their fellow workers.
Fortunately, previous consultations and my environmental graduate work (in Waste Management) led to my reading The Environmental Law Handbook. This handbook was required reading for the graduate level "Environmental Law" course I took at the University of Idaho and is an excellent reference.
In addition, the Gilbane Gold video (for a synopsis see Video Focused on Ethics) encourages legal questions related to the video's fictional case study. This video brings to the forefront issues of liability when making Best Professional Judgments.
There is a complexity to today's environmental law system that, in relation to making Best Professional Judgments, is readily managed with a synthesis of environmental law, waste discharge, effluent limitation, and the value and application of a profession's Code of Conduct and engineering ethics. You need to rely on those trained and experienced at making Best Professional Judgments.
By no means am I intending to give professionals the impression that after reading this article they will be fully educated to make sound Best Professional Judgments. (It is my belief that one's own conscience and competence may be the deciding factor.) Instead, the reader may gain a respect for the degree of synthesis and depth of knowledge necessary to make sound Best Professional Judgments without harm to the environment or people.
1. See 40 C.F. C. 122.44, 122.45.
2. See Government Institute, Inc., The Environmental Law Handbook, burden of requesting additional monitoring is discussed in 5.1.1 Monitoring and Reporting (1993).
3. See The Environmental Law Handbook, Best Professional Judgment is discussed in 5.1.1 Monitoring and Reporting (1993).
4. Section 301(a), 33 U.S.C. 1311(a).
5. Section 301(1), 33 U.S.C. 1311(a).
6. Section 502(12), 33 U.S.C. 1362(12).
7. See The Environmental Law Handbook, 4.0 Discharge Prohibition.
8. See The Environmental Law Handbook, 4.1 Pollutant, section 502(6).
9. Section 502(14), 33 U.S.C.
10. 40 CFR 122.2.
11. See The Environmental Law Handbook, 4.4 Navigable Waters.
12. See The Environmental Law Handbook, explanation of these three criteria in 5.3 Discharge Limits.
13. See The Environmental Law Handbook, footnote no. 41 being used to describe how congress intended EPA to implement this quoted combination of standards in a way that would force control technology innovation.
14. Quoted from Section 301 and excerpted from The Environmental Law Handbook, 5.5.1 and its description of limits for existing direct discharges.
15. 40 CFR 122.29(b).
16. Quoted from Section 306(a)(1) and excerpted from The Environmental Law Handbook, 5.5.2 and its description of limits for new direct discharges.
17. See The Environmental Law Handbook, 5.5 Industrial Effluent Limitations, description of BCT for additional detail.
18. According to The Environmental Law Handbook, 5.0 Permit Program, under the statute, the word "practicable" was read together with the provisions of section 304(b)(1)(B) and so required that effluent limitations be justified in terms of the "total cost of (industry-wide) application of (required) technology in relation to the effluent reduction benefits to be achieved."
19. NSPE/NIEE Discussion Guide for Gilbane Gold, A Video Dramatization on Engineering Ethics, Synopsis.
For information on how to order The Environmental Law Handbook, contact the Government Institutes, Inc. at (301) 921-2355 or by writing:
Government Institutes, Inc.
4 Research Place, Suite 200
Rockville, MD 20850
For information on how to order the Gilbane Gold video, or how to join the National Institute for Engineering Ethics (NIEE), contact NIEE at (703) 684-2840 or by writing
1420 King Street
Alexandria, VA 22314
Five Fundamental Canons from NSPE Code of Ethics for Engineers
Engineers in the fulfillment of their professional duties, shall:
- Hold paramount the safety, health and welfare of the public in the performance of their professional duties.
- Perform services only in areas of their competence.
- Issue public statements only in an objective and truthful manner.
- Act in professional matters for each employer or client as faithful agents or trustees.
- Avoid deceptive acts in the solicitation of professional employment.
Six Standards from the BCSP Code of Professional Conduct
- Hold paramount the safety and health of people and the protection of property and the environment in performance of professional duties and exercise their obligation to advise employers, clients or appropriate authorities of danger to people, property, or the environment.
- Perform professional services and assignments only in areas of their competence.
- Issue public statements only in an objective and truthful manner.
- Act in professional matters for employers or clients as faithful agents or trustees.
- Build their professional reputation on merit of service.
- Strive for continuous self-development while participating in their chosen professional safety discipline.
Video Focused on Ethics
The following synopsis is provided here to encourage readers or their employers to include the NSPE/NIEE video Gilbane Gold video in training for engineering ethics.
Remember the names you are about to read ARE FICTIONAL and are in no way related to any individual who happens to have the same name.
Gilbane Gold is the name given to dried sludge from the Gilbane wastewater treatment plant. It is sold to farmers as a commercial fertilizer. The annual revenue generated saves the average family about $300 a year in taxes. Several years ago, the city of Gilbane established limits on the discharge of heavy metals to the sewers in order to protect Gilbane Gold from the build-up of toxic materials that could end up in the farmer's soil. These limits are based on the concentration of the discharge with no restrictions to the total weight of material discharged.
Z Corp. is a computer components manufacturer that discharges wastewater containing small amounts of lead and arsenic into the city sewer system. By the current city test standards, the discharge usually meets the allowable levels for heavy metals. However, a newer test, known only to Z Corp. environmental people, shows that their discharge exceeds city standards. An ethical dilemma arises within Z Corp. concerning whether to advise the city of the newer test.
Acceptance of the newer test would require additional investment in clean-up equipment. Tom Richards is a Z Corp. environmental engineering consultant who was fired for advocating the new test. Thereafter, David Jackson, an engineer working for Z Corp., "goes public" with his views. A television media investigation results.
Complicating the situation is the fact that Z Corp. has just received a contract for five times as many computer modules as they presently produce, albeit at a very thin profit margin. The increased production means five times as much waste will be produced. However, the discharge concentration can be kept the same by adding five times the amount of water, thus still meeting the existing city standards.
The result is that Gilbane Gold has five times the amount of heavy metals in it as before. The Z Corp. vice president is opposed to changing the test standards because that would require additional investment in wastewater treatment equipment. This could cause Z Corp. to lose money on the new contract. The vice president contends that Z Corp.'s responsibility is "to provide jobs and a payroll and that the city should worry about the environment."19
It was my sense from the video, and the lawsuits I have followed, the dilemma of environmental wastes is the resultant impact to the environment caused by individuals who are in the position to make deceptive effluent control decisions or provide a deceptive picture of their discharge of wastes.
To help prevent similar deceptions, I provided copies of the NSPE Code of Ethics and the BCSP Code of Ethics to individuals attending my class. From the responses, attendees were enlightened as to their responsibility to the environment. Several attendees spoke up and gave testimony about not realizing their responsibility to the environment, and they felt the codes of ethics provided a sound base to be ethical when making decisions towards Best Professional Judgment.