Co-written by: Jarrett Duncan
Published in the Portsmouth Herald, March 2012
There is a lot in the news about the discharges of wastewater causing environmental impacts to the Great Bay estuary, and the infrastructure costs that will need to be expended to address those impacts. Infrastructure estimates range into the tens of millions of dollars region-wide. Many of those costs will be paid by municipalities and users of municipal wastewater treatment plants. The contentious points between the regulators and regulated parties relate primarily to whether the science supports for more stringent limitations for the discharge of pollutants, particularly nitrogen, to surface waters under federal and state permits. These debates will certainly raise awareness about the environmental impacts of discharges to the estuary and will advance the science and engineering.
That debate, however, cannot ignore the formal legal permitting process that regulates discharges to surface waters. The issues faced by the communities, taxpayers and business surrounding Great Bay in large part arise because of the status of the federal and state discharge permits that municipal wastewater treatment plants and private businesses are required to maintain and periodically renew. Many of these permits have expired or soon will, and it is the renewal process that has triggered the financial and scientific issues making the news. When properly understood and used, that expiration and renewal process offers the opportunity for effective advocacy.
In general, discharges to surface waters are regulated by EPA under the Clean Water Act through the National Pollutant Discharge Elimination System (NPDES) permitting program. Because the EPA has not “delegated” to New Hampshire the authority to administer the NPDES program, individuals or businesses seeking to discharge using a pipe or other “point source” are required to hold an NPDES permit issued by EPA. Although the State does issue companion surface water discharge permits, EPA is the lead agency in the process. Nevertheless, the State and its permits play an important role that cannot be overlooked.
NPDES permits place limits on pollutants that can be legally discharged into surface waters. Every 5 years, NPDES permits must be renewed, after which a new permit is issued, with new and potentially tougher requirements. The price for failure to discharge as allowed by permit can be steep. The Clean Water Act allows for penalties of up to $27,500 per violation for each day a permit limit is exceeded. That is in addition to infrastructure upgrades. Thus, finding a solution with manageable up front investment levels that can be complied with from the moment the new permit becomes effective, is critical.
The Legal Process and How to be Heard
1. Public Comment
After a permit application is filed, EPA conducts an extensive review and issues a draft permit. The draft contains new effluent limits that EPA deems protective of the receiving waters. That draft permit is put out for a relatively brief opportunity for public comment. This is an important opportunity for considered, well articulated and legally supported participation by all affected parties.
During the public comment period, all issues that anyone opposing or supporting the draft permit want to raise must be submitted to the EPA. If issues or concerns are not raised during this window of opportunity, with very limited exceptions, those issues will not be considered by EPA or as part of any later appeal. An interested party cannot simply wait to see what a final permit looks like, and only then decide to raise concerns.
The more detailed, specific, scientifically and legally supported the comments are, the more chance those comments have of being taken account of in the final permit. This part of the legal process is the one clear opportunity most will have to affect the final outcome, and it is an opportunity that can not be taken lightly.
2. The Appeals Process
After consideration of all public comments, EPA issues a final NPDES permit, and responds to the comments it previously received.
Importantly from a legal perspective, even though it is a “non-delegated” state, New Hampshire will adopt the federal NPDES permit as its own surface water discharge permit. As a matter of law, two separate permits are issued at this point in the process.
Upon issuance of the final permit, the permit holder must decide whether to appeal, and file within 30 days. NPDES appeals go to the federal Environmental Appeals Board, and the State permit appeal is to the New Hampshire Water Council. Failure to file a timely appeal acts to waive rights to contest the permit and its requirements, and the permit becomes effective.
The appeal itself will be closely tied to comments made in the earlier stages of the process. It is only in the unusual case that new or previously overlooked issues can be raised. The record created during application and public comment controls the rest of the process.
In an appeal, opportunities exist for affected parties in addition to the permit holder to petition to intervene and participate. For example, should a municipal wastewater treatment plant that holds a permit file an appeal with federal and state authorities, ratepayers who will end up paying increased fees to use the municipal plant may be able to intervene in the appeal to lend support and be heard. Mechanisms for such intervention exist in both New Hampshire and federal law.
The full legal process is more detailed and nuanced than this article can fully describe. The bottom line is clear however: while the battle continues over the science of effluent-based limitations in NPDES permits, it is essential for all affected parties to actively participate in the legal process. Failure to follow the legal requirements can result in losing the ability to contest permit conditions. Once a permit goes to final form, it is set for at least 5 years, and it is rare for subsequent permits to be any easier to comply with.
Michael Quinn is a Director in the McLane Law Firm’s Portsmouth office and can be reached at [email protected]. Co-authored by Jarrett Duncan.