NPDES six

Even after you've submitted your comments, your opportunities for public participation are far from over.

Time to ask for a public hearing

The Clean Water Act guarantees you the right to a public hearing before a NPDES permit is issued (CWA, section 402(a)(1)). It is not likely that agencies will hold a public hearing on a permit unless people request one, however. Some states require a certain number of requests before they will grant a hearing. The frequency of permit pubic hearings varies from state to state.

Detailed information on the permit may be provided at a public hearing, and sometimes questions will be answered. It can also be a valuable forum for making your concerns known to people other than your state agency, such as other interested citizens, decision-makers and members of the press. Many states hold hearings during the comment period. If any issues arise at the hearing, the comment period should allow sufficient time for the public to respond.

Appealing a permit

The steps to appeal an issued permit vary from state to state. There may be a limited time window for your appeal so be sure to ask the agency what the process is right away. If it appears likely that the permit is going to be issued, it wouldn’t hurt to ask about the appeal process even before it happens. That way, you have time to prepare whatever documentation and support (technical or legal) that you might need for the process.

In many states, the appeal first goes through an administrative process, such as a hearing before an administrative law judge or the board that oversees the agency. If that process is unsuccessful, state court (or federal court when EPA issues the permit) is usually the next step in the process. Some states require the appeal to be taken directly to court. It is important to determine whether the permit is valid or suspended while the appeal is on-going to avoid the construction of facilities or temporary discharge of pollutants that may ultimately be disallowed.

Modifying permits

Once a permit is granted, it is tough to change it. However, permits can be reopened if facilities or regulations change or if new information on the adverse effects of a permitted discharge becomes available ((40CFR122.62(a))). If it is not possible to reopen the permit mid-cycle, continue to build your case for when the permit comes up for renewal.

Problems in the receiving stream should be documented and reported to the agency. If the water body is placed on the impaired waters list, and an existing discharge is contributing to the problems, the restoration plan (TMDL) for those problems must require changes to the permit. Listing of a receiving water body as threatened or impaired or completion of a TMDL should result in early revisions to the permit as well.

Stopping violations of a permit

Violations of NPDES permits can be enforced in three different ways: through 1) an agency’s civil enforcement actions (including administrative penalties), 2) criminal prosecution and 3) citizen suits. Permit enforcement actions can be triggered in a wide variety of circumstances. Some result from inspections, others from a review of the discharge monitoring reports submitted by a NPDES permittee and still others from complaints filed by citizens or current or former employees.

Civil Enforcement
Where the EPA delegates the NPDES permitting program to a state environmental agency, it also delegates primary civil enforcement responsibilities. When permits are violated, agencies base decisions on whether and how to pursue enforcement action on at least three factors: the violator’s culpability or mental state, the extent of environmental harm caused by the violation, and the economic benefit the violator gained through its failure to comply with the law. When a state agency documents a violation, it is supposed to issue a notice of noncompliance (NON) or notice of violation (NOV) to the violator. The most common civil enforcement action is the issuance of a civil penalty. The Clean Water Act provides for penalties of up to $32,500 per violation per day. In addition to imposing penalties, an enforcement authority may also:

• require immediate actions to correct the violation;
• require documentation of future compliance;
• order facility operators to cease operations until problems are fully addressed;
• revoke the discharger’s permit; or
• refuse to renew a permit.

Criminal Prosecution
The Clean Water Act and state water quality statutes also contain criminal penalties for certain violations. Criminal prosecution is reserved for severe violations, but it is being used increasingly throughout the country. Criminal violations are prosecuted by United States Attorneys, State Attorneys General or local District Attorneys in the county in which the violation occurred.

In determining whether to prosecute criminally, most investigators and prosecutors look to whether the violation was committed intentionally (a “knowing” violation) or negligently, and whether the violation resulted in damage to the environment.

However, a violation need not be intentional to be subject to criminal prosecution. Nor must the extent of environmental damage necessarily be proven.

The most common criminal cases involve discharging without permits, bypassing pollution control equipment or falsifying discharge monitoring reports submitted to the states or the EPA.
Corporations as well as individuals may be criminally prosecuted. Criminal penalties may include substantial monetary fines as well as significant terms of imprisonment for individuals found guilty.

Citizen Suits
The Clean Water Act also grants private citizens the right to take independent enforcement actions for permit violations. Any person or entity that is or may be adversely affected by a permit violation may bring suit against the entity causing it (see Lesson 9: Enforcing the Act for more on citizen suits).