Special Topics in Environmental Management

Tips to Patch Your NPDES Permit Shield

NPDES permits establish allowable discharge limits or effluent limitations that include both concentration and volume of flow. Section 402(k) of the federal Clean Water Act (CWA) provides for what is known as a “permit shield.” This means that if you are in compliance with your NPDES permit, then you are deemed to be in compliance with laws and regulations related to the NPDES program.

According to the EPA, Section 402(k) also shields discharges of pollutants authorized under a general permit. (See yesterday’s Advisor for a more thorough look at the NPDES permit shield.)

Tips to Protect Your Permit Shield

In order for your NPDES permit shield to protect you from liability, you have to protect it. Ensure that there are no holes in it, and the key place to be vigilant is in the permit application.

To avail yourself of the permit shield protections, you must be in complete compliance with all application requirements, additional information requested by your permitting agency, and all notification requirements. The following tips will be helpful in ensuring that your shield is strong enough to withstand attacks.

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Tip 1: Be proactive in the permitting process. Take pains to ensure that you and the folks at your permitting agency are on the same page when it comes to the terms of your permit.

Tip 2: Follow the letter of the permit application. In some cases, the application may be stricter than the regulation. For instance, in the case discussed in yesterday’s Advisor (Southern Appalachian Mountain Stewards v. A&G Coal Corp.), the Court ruled, in part, that A&G essentially could not leave any blanks on the permit application when it came to stating whether a pollutant was “present” or “absent” in the discharges. The NPDES regulation at 40 CFR 122.21(g)(7) states that an applicant must indicate whether it “knows or has reason to believe” that any of the pollutants in the various tables in the regulation are being discharged from an outfall. It is EPA NPDES Form 2C that lists the pollutants and provides boxes for checking whether a pollutant is “present” or “absent.” Whether it is legal for a form to be stricter than a regulation may yet be decided in the courts.

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Tip 3: Be aware of and comply with the notification requirements at 40 CFR 122.41 and 40 CFR 122.42. 40 CFR 122.42 has notification requirements specific to various categories. 40 CFR 122.41(l) requires that you give notice of any:

  • Planned changes at your facility that would either make it a new source, or increase the quantity of the pollutants discharged, or result in a significant change in sludge use or disposal. In addition, you must notify your permitting authority if planned changes may result in noncompliance with your permit conditions.
  • Noncompliance that may endanger health or the environment must be reported within 24 hours of when you become aware of the circumstances. Other instances of noncompliance must be reported in your monitoring reports.

Tip 4: Promptly notify your permitting authority when you become aware that you failed to submit relevant facts in your permit application or that you submitted incorrect information in your permit applications or any reports. This would include if you become aware that you are discharging a pollutant that you had not realized would be discharged when you applied for your permit.

Failure to notify your permitting authority of violations or changes at your facility is one of the most common violations agency officials uncover during NPDES inspections.


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