Step 7: Taking Action
Compiling all of the information from the files and then deciding what to do can be difficult. GreenLaw was founded to help citizens like you take the next step and do something about pollution in your watershed. Once you have gone through the files, we can help you understand what it all means. We can also help you develop a strategy to address the problems in your watershed and may be able to provide some legal assistance, if necessary.
In the meantime, here are a few things that you can do with the information that you have found:
Commenting on a Permit
All NPDES permits must be reissued every five years. Each time a permit is issued or renewed, EPD must circulate notice of the draft permit application to the public. Following public notification, citizens have 30 days to comment on the draft application.
The first step in commenting on a permit is finding out when it will be reissued. The easiest way to know when a permit will be reissued is to receive EPD’s monthly (sometimes bi-monthly) mailing that lists proposed permits by county. To get on the list, submit a request that you be added to the list. This request can be made by calling EPD at , or mailing or faxing a letter to the Watershed Protection Branch at 4220 International Parkway, Suite 101, Atlanta, GA 30354 Fax: 404.675.6247. Click here to see a sample of the notice that you have a right to receive.
The second way to determine when a permit will be reissued is to look for the expiration date on the first page of the permit (view a Permit). It is important to note that permit applications are submitted and the public notice time-period is conducted several months BEFORE the expiration date. Call EPD at to find out exactly what the schedule is for a particular permit.
During the public notice time period, EPD issues a notice describing basic details regarding the permit. The sample (Adobe Acrobat PDF ~133 KB.) will describe to you how to comment on a permit. Usually, it will require you to get a copy of the proposed permit from EPD. It is usually a good idea to review the entire file before commenting on a permit because the file may reveal important information. For example, it may reveal that the permittee has failed to comply with its permit in the past. This should be brought to EPD’s attention.
Here are some suggestions for commenting on a permit:
- What are the pollutants to be discharged? Are they harmful pollutants? View a list of common pollutants.
- Is there a “statement of basis” or a “fact sheet”? EPD must prepare a fact sheet explaining why they plan to issue the permit with the conditions contained in the draft permit. If there is no fact sheet or statement of basis, the public notice procedures have not been properly followed, and you have grounds for appeal.
- Is it a renewal permit?
- Have the violated their in the past? Search EPD's enforcement database and also look in their file for unenforced violations. EPA also has a comprehensive database that can help you find violations.
- Is the permit the same as the last permit? If it is different, is the permit weaker or stronger, and why?
- Is the water impaired? Is the receiving water listed on the, 303(d) list, does it have a TMDL, or is a TMDL proposed?
- Is the area for the discharge pristine? Are there national or state parks that may be impacted by the discharge? Recreational activities?
- Are there pollutants that have “monitoring” requirements, but no “limitations”? If so, why? If there are no actual “limitations,” then inclusion of the monitoring requirement will give the permittee license to discharge those pollutants in unlimited quantities.
- Are there any endangered species in the area?
- Are there other dischargers nearby that will add to the cumulative impact of the discharge? Find out who is discharging nearby.
- Are there other water quality problems that need to be addressed?
Most importantly, this is where GreenLaw can help you. You can ask us to review a permit and give you some suggestions on whether there are problems with the proposed permit.
Click here to see a fact sheet, notice and draft permit.
Appealing a Permit
If you submitted comments during the 30-day time period, EPD is required to send you a letter if it decides to issue the permit. However, EPD does not always comply with this requirement. Thus, it is a good idea to periodically check in with EPD to see if the permit has issued. If the permit issues without the changes that you wanted, you need to decide whether you would like to appeal that permit.
State law allows a person who has been “aggrieved” by a decision of the Director of EPD to file an appeal of that decision. In practical terms, that means that if you are dissatisfied with a permit, you can appeal that permit.
Basic rules on appealing:
- State law provides that an appeal must be filed within 30 days of the issuance of the permit.
- Permit appeals are filed with and judged by the Office of State Administrative Hearings (OSAH). The legal rules can be complex and so we recommend that you consult an attorney prior to filing an appeal. While the appeal is heard by OSAH, it is first filed with the agency who issued the permit (in this case EPD). For more information on the procedures to file an appeal, go to EPD's website where they outline the rules for filing an appeal. You can also visit OSAH’s Web site or contact us with additional questions.
- There are no requirements that you must have an attorney to file an appeal. Of course, it is best to seek the advice of an attorney.
Grounds for Appeal
There are two basic types of challenges to a permit, procedural and substantive. Procedural challenges include the following:
EPD Did Not Respond to My Comments: State and federal law require EPD to accept and respond to your comments. EPD must respond to all citizen comments to ensure that the public has a meaningful opportunity to participate in decisions affecting water quality. Thus, if you submit comments and do not receive a response, but EPD issues the permit, you may have grounds for invalidating that permit.
The Permit Application Did Not Contain a Statement of Basis or a Fact Sheet: As discussed above, EPD must prepare a statement explaining why they plan to issue the permit as proposed. The fact sheet provides the general public with a basic rationale of why EPD issued the permit and why it believes that the conditions contained in the permit are appropriate.
The Permit Was Modified Without Additional Public Notice: EPD cannot make substantial modifications to the permit without sending it out again for public notice.
These are just a few of the procedural arguments that could be raised in an appeal. Substantive grounds typically focus on how the permit fails to protect water quality or does not comply with the law. The exact substantive reasons for appealing a permit will depend a great deal on the information that you uncover during your permit review, and the answers to questions regarding the impact of that discharge. Both procedural and substantive challenges can be included in a single appeal.
Another important aspect of the Clean Water Act that allows for citizen participation in the NPDES permitting process, involves the monitoring of permitted discharges. CWA requires each permittee to submit reports detailing their compliance with the effluent limits contained in their NPDES permits.
Citizens may get involved in the monitoring process by reviewing DMRs for facility compliance. All DMRs are available for public viewing and citizens must be provided access pursuant to the Open Records Act. By participating in the DMR review process, citizens not only become aware of permit violations, but they can pressure EPD to take action against violators. This information can also be used to educate the community about activities that are taking place close to home that may impact local citizens daily lives.
When EPD fails to take action against violators, the Clean Water Act authorizes citizens to file suit in federal court to enforce compliance with permit requirements; such lawsuits are commonly known as citizen suits. The importance of citizen suits is twofold: (1) citizen suits allow the public to seek direct enforcement of the Clean Water Act; and (2) citizen suits indirectly ensure government accountability and corporate responsibility.
In addition to creating a comprehensive permitting program, the CWA also contains specific provisions regarding the enforcement of effluent standards contained in NPDES permits. For example, in addition to other enforcement mechanisms, the CWA grants citizens the right to bring civil suit over pollution that occurs “in violation of an effluent standard or limitation.” In establishing liability, a citizen may rely upon monitoring reports submitted by the permittee.
Strength in Numbers: Community Organizing
Organizing the community is imperative in the fight for clean water. Through group mobilization, citizens powerfully bring voice to environmental injustice. This voice is a compelling tool for positive change. Never doubt the strength of numbers throughout this whole process. Pressuring EPD will result in better government accountability and consequently will produce more corporate responsibility.
Once you have reviewed a permit file on a particular polluter, you would be surprised how valuable this information is to local citizens. Some of the discharges may directly impact your neighbors’ use of a river, their health or the health of their child, or even their business. Regardless of whether a particular facility is complying with its permit, many citizens do not even know that a company can legally discharge cyanide, lead, copper and zinc into the river. This information is a powerful organizing tool. So, go out and alert the public through the media and community leaders on permitting issues. Write a letter to the editor of your local paper. Bring friends and family members to public hearings.
Here in Georgia, the Georgia River Network is available to help you get your organization off the ground. On their site, click on the “Resources & Tools” icon for information on organizational development and outreach.
Go to Step Eight.