On November 22, the US Environmental Protection Agency (EPA) announced the success of its ongoing National Compliance Initiative for “Reducing Significant Non-Compliance (SNC) with NPDES Permits,” addressing high levels of non-compliance with individual permits to discharge water pollutants under the Clean Water Act’s (CWA’s) National Pollutant Discharge Elimination system (NPDES). EPA started the Initiative in fiscal year (FY) 2018, in cooperation with delegated state water quality agencies, after compiling and evaluating permit holders’ data showing significant non-compliance by over 20% of the 46,000 permitted facilities around the country. The Initiative’s goal has been to cut non-compliance in half by the end of FY 2022. EPA’s November 22 report claims that this goal has been exceeded, with significant non-compliance rates down to 9%.
What are NPDES individual permit requirements, and what does EPA consider significant non-compliance?
CWA provides a system for facilities that discharge pollutants to “waters of the United States” to obtain permits establishing conditions for doing so. Agencies issue “individual permits” tailored to conditions at specific permitted facilities, and also issue a number of “general permits” that qualifying facilities can choose to follow instead of securing individual permits. Permits may be issued directly by EPA, or by authorized state and local government agencies. Permits generally include the following types of requirements:
- Informational and administrative details (ownership, location, site map, etc).
- Pollutants covered, and applicable discharge limitations (concentrations or mass/volume over time)
- Applicable restrictions– typically requirements for onsite process controls and/or operating (administrative) procedures intended to provide for compliance with discharge limits
- Self-monitoring (onsite and/or at discharge point(s))
- Reporting to water agency – routine reporting and incident reporting
Failure to comply with these requirements can violate CWA and EPA regulations, state water quality laws and regulations, and applicable permit conditions.
Since 1995, EPA’s enforcement policies define “significant non-compliance” with CWA requirements for NPDES individual permit holders as the following:
- Any 40% exceedance of a permitted discharge limit, or 20% exceedance for 2 or more consecutive months
- Any discharge violation at a specific discharge point for 4 or more consecutive months
- Comparable exceedance of monthly or non-monthly average discharge limitations
- Any effluent violation that “causes or has the potential to cause a water quality or human health problem”
- Types of non-effluent violations, including: unauthorized bypass, discharge or pass-through violation that “causes or has the potential to cause a water quality or human health problem”
- Violation of construction requirements in permit conditions by 90 days or more
- Violation of required reporting requirements (e.g., periodic report of monitoring data) by 30 days or more
- Violation of requirements of an administrative order or judicial order
What is EPA’s National Compliance Initiative, as it relates to NPDES permit holders?
In 2015, EPA promulgated rules requiring NPDES permit holders to submit their monitoring reports electronically (I wrote about those rules HERE https://blog.stpub.com/epa-adopts-rules-for-electronic-clean-water-act-reporting). When EPA compiled and evaluated these reports, the agency discovered significant non-compliance by 20.3% of the 46,000 NPDES individual permit holders during FY 2018.
In response, EPA enlisted its state agency partners in this National Compliance Initiative, targeting facilities with
- Compliance assistance, including targeted technical assistance
- Compliance advisories (targeted to smaller facilities) with “compliance tips” and information about technical and financial assistance programs
- Enhanced enforcement
EPA has just reported that these efforts have reduced significant violations from 20.3% to 9% -- which amounts to roughly 5,000 facilities.
What happens next?
According to EPA: “In 2023, EPA and the states will continue to focus on assuring that the progress gained is not lost and on addressing the worst CWA violators across the country.” These efforts are consistent with broader information and enforcement efforts that EPA is undertaking under its strategic plan for FY 2022-2026.
Self Assessment Checklist
Do the organization’s activities involve routine discharges to waterways, from ongoing activities and/or stormwater runoff?
Are any of these activities subject to individual NPDES permits, issued by EPA or an authorized state?
Does the organization comply with applicable CWA and/or state water quality requirements, including submission of periodic reports and other compliance documents as required?
Where can I go for more information?
- EPA Enforcement webpage
- NCI for reducing significant non-compliance with NPDES permits, webpage - https://www.epa.gov/enforcement/national-compliance-initiative-reducing-significant-non-compliance-national-pollutant
- compilation of policy memoranda regarding significant non-compliance - https://www.epa.gov/enforcement/memorandum-revision-npdes-significant-noncompliance-snc-criteria-address-violations-non
- EPA FY 2022-2026 Strategic Plan - https://www.epa.gov/system/files/documents/2022-03/fy-2022-2026-epa-strategic-plan.pdf
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com