Step 4: Enforcement of Permit Conditions
Establishing liability for NPDES permit violations is relatively straightforward: A violation of an NPDES permit constitutes a violation of the CWA. In fact, fault is not required to support liability. Instead, enforcement of NPDES permits is based on “strict liability.” In other words, even if the permittee did not mean to violate its permit, it is liable for the results. Under the law, in NPDES enforcement actions, “the sole question [is] whether the discharger has exceeded the limitations on discharge of pollutants from a particular point source.”
While strict liability may seem unfair to some, it imposes a responsibility on each permittee to ensure that permit limitations are being met. Without such liability, a permittee could avoid any penalty for polluting our waters by merely claiming that he or she was unaware of the problem. Strict liability places an affirmative duty on the permittee to protect our resources. Basing liability on clear effluent limitations furthers the purpose of the CWA. As the courts charged with interpreting the Act have noted,“[s]uch direct restrictions on discharges facilitate enforcement by making it unnecessary to work backward from an overpolluted body of water to determine which point sources are responsible and which must be abated.”
When Clean Water Act violations occur, compliance can be enforced in four different ways:
- EPD’s civil enforcement actions (including administrative fines)
- criminal prosecution
- citizen suits
Enforcement actions may result from a variety of scenarios, including inspections by the regulatory agency, complaints filed by employees or citizens, and monitoring reports submitted by the permittee to the regulatory agency. Under the CWA, self-monitoring is supposed to be the main enforcement method.
The primary responsibility for complying with the Clean Water Act and the terms of a permit rests with the permit holder. The permittee is also responsible for reporting any violations and taking corrective action.
Unfortunately, many permittees do not comply with their permit limits and, unless faced with a penalty, fail to take corrective action. Once a permittee fails to comply with its permit, EPD has the primary responsibility for enforcing that permit. If EPD documents a violation, it typically issues a notice of noncompliance to the violator. The most common tool for civil enforcement is the issuance of a civil penalty or fine. The Clean Water Act provides for penalties of up to $32,500 per violation per day. In addition to imposing fines, EPD may also:
- require immediate actions to correct the violation(s) (For example, replacing or repairing defective equipment or taking other corrective measures to prevent further illegal discharges);
- order facility operators to cease operations until the problems are fully addressed;
- revoke the discharger’s permit;
- refuse to renew a permit.
While EPD has a range of options at its disposal, many of these options are rarely taken. For example, EPD rarely (if ever) assesses fines at the statutory maximum choosing instead to assess fines well below $32,500 per violation. Also note that each violation of each permit limitation is a separate and distinct violation. For example, if several pollutants are discharged above the limits on one day, each should be counted as a violation. If there are many days of violations, those also count as separate violations, even if the monitoring only occurs once during a specified time period. For example, if the permit lists a monthly average limit and that is violated, it counts as 28-31 violations depending on the month. Remember, fines serve a valuable purpose in deterring future violations. If the fines are significantly less than the cost of fixing the problem, then the violator has an incentive to just continue discharging harmful pollutants into the river.
Also, instead of requiring immediate action, EPD will typically require a violator to enter into a consent order which describes measures which must be taken, such as upgrading equipment or providing operator training, with a schedule for achieving compliance. Sometimes these compliance schedules allow the permittee two or three years to achieve compliance. Rarely, if ever, does EPD deny a permit, revoke a permit or refuse to renew a permit based on failure to comply with permit limitations.
EPD has a database of all enforcement actions available on the Web. Mail subscriptions to these notices are available at a cost of $50 per year. That fee provides the subscriber with all notices of proposed and executed orders issued from July 1 through June 30 of the following year. For information about subscriptions, call EPD at (404) 657-5947 inside Atlanta local dialing area or toll-free within Georgia at (888) 373-5947.
If you think that EPD did not do its job and is not preventing future violations, it is possible to bring a citizen suit against the polluter to have stronger restrictions imposed to protect water quality.
The CWA and state water quality statutes also contain criminal penalties for certain violations. Criminal prosecution is extremely rare and is typically reserved for severe violations. Criminal violations are prosecuted by United States attorneys, State attorneys general, or local district attorneys in the county in which the violation occurred. Criminal prosecutions are not based on strict liability. Instead, prosecutors generally base their decision on whether the violation was committed intentionally or negligently.
The most common criminal cases involve discharging without a permit, bypassing pollution control equipment, or falsifying discharge monitoring reports. Criminal penalties may include substantial monetary fines as well as significant terms of imprisonment for individuals found guilty.
Unfortunately, there are many occasions when a facility will continuously exceed its permit limits yet EPD fails to take any enforcement action against the facility, or EPD will take an action ordering the facility to take certain measures to protect water quality, but then continuously extend the time period in which the facility must comply with its permit. Fortunately, the Clean Water Act gives citizens the power to do something about that through citizen suits. Basically, when a polluter continually violates the Clean Water Act and the state fails to enforce the law by requiring the violator to come into compliance with the law, a citizen or group can file suit in to enforce compliance with the permit terms.
The Clean Water Act provides specific procedures for filing a citizen suit. After documenting a violation, citizens are required to provide a 60-day advance notice of their intent to sue. This notice must be sent to the polluter, EPD, EPA Region IV (Atlanta headquarters), EPA Main Office (Washington, D.C.), and the U.S. Attorney General. If these government officials fail to take action and the polluter fails to achieve compliance within sixty days, then the citizen can file a lawsuit.
As a result of citizens suits, the violator may be:
- Assessed penalties of up to $32,500 per day per violation (payable to the U.S. Treasury)
- Ordered to comply with the terms of its permit and perform other types of “injunctive relief.” Injunctive relief is when the court orders the polluter to take certain actions such as implementing pollution control measures, replacing equipment, undergoing training, and other measures necessary to prevent further violations.
- Required to undertake “supplemental environmental projects” or “SEP.” A supplemental project is typically a project implemented by the violator that benefits the community impacted by the illegal dischargers. For example, these projects may include adopt-a-stream programs, streambank restoration projects and the purchase of conservation easements. A SEP cannot be something that the violator is already under a legal obligation to do. The United States Environmental Protection Agency has developed guidelines on appropriate SEPs.
At this point, you may be wondering how to file a lawsuit. That is where GreenLaw can help you. GreenLaw works with nonprofit environmental organizations and helps them to understand the legal process. When possible, GreenLaw files citizen suits on behalf of citizens. Please contact us at email@example.com with questions!
Go to Step Five.