Enforcement of the Industrial Stormwater Permit Program
Enforcement of the industrial stormwater permit program can come from many different places: federal, state and local government as well as private citizens and citizen organizations. Enforcement actions range from pre-enforcement warning letters that give facilities an opportunity to correct problems without any fines, to complex lawsuits with penalties high enough to bankrupt a company.
EPA can take a variety of enforcement actions, including administrative fines. Unsurprisingly, federal enforcement is more common in states where EPA is the permitting authority. In other states, the federal government usually only steps in to correct egregious violations, such as those involving hazardous waste or violations of multiple environmental laws. EPA industrial stormwater enforcement also waxes and wanes with the agency’s predetermined enforcement priorities, which it revises regularly.
State & Local Enforcement
State enforcement is much more common than federal enforcement. Every state differs, but state environmental protection agencies generally aim to conduct random inspections at 10-20% of permitted facilities each year and respond to complaints from community members. Facilities that fail to submit reports or respond to benchmark excursions when required may also trigger automatic enforcement mechanisms. State agencies often start with a pre-enforcement notice letter and ratchet up to a notice of violation and even formal enforcement before an administrative hearing board or judge if violations continue or are disputed. Agencies typically use an equation to assess penalties that factors in the severity of the violation, whether it is a repeat violation, the facility owner’s cooperation (or lack thereof), money saved through non-compliance, and the cost of the required corrective action. Local government enforcement often works with state authorities and uses similar tools. Municipal inspectors may be especially keen to find stormwater violations at industrial sites where polluted discharges reach municipal sewer systems.
In several states, citizen enforcement is far more common than even federal and state enforcement combined. The Clean Water Act gives individual citizens and citizen groups the ability to sue facilities for violations of the NPDES program in federal court. Citizen enforcers must first send the facility a letter giving notice of their intent to sue 60 days in advance of filing a lawsuit. If there are ongoing violations at the end of the 60-day period and government enforcers have not stepped in to diligently prosecute the case themselves, the citizen or group may file its case. Common bases for these citizen suits are:
- Repeat or sporadic benchmark exceedances – citizen plaintiffs often use this as evidence that a facility has failed to implement BCT/BAT;
- Failure to monitor, submit reports, respond to benchmark excursions or keep an adequate SWPPP – these automatic permit violations provide easy fodder for citizen suits;
- Causing or contributing to a water quality standard violation – this is particularly common for discharges to impaired water bodies; and
- Unpermitted discharges – unless a narrow exception applies, every point source discharge of pollutants to covered waters requires a permit.
This information is not intended to substitute for professional legal advice.