Most industrial sites have wastewater discharges, and most people know those discharges must be permitted under the Clean Water Act (CWA). What many people do not know, including some consultants, is the CWA has a “permit shield” that could protect your company or client from liability to a regulatory agency or as a result of a citizen suit by a third party.
Generally, the CWA imposes a blanket prohibition on all discharges of pollutants to the waters of the U.S. If a discharge occurs, the discharger is in violation of the CWA. The major exception to this prohibition and resulting liability is a discharge that is allowed under a permit issued by EPA or an appropriate state agency. Based on the application submitted, the permit will include a listing of pollutants that may be discharged and the amount of those pollutants that can be discharged. The permittee samples the discharge on a frequency established in the permit and reports the amount of pollutants discharged to the regulatory agency. If the permittee is in compliance with the terms and conditions of the permit, then that compliance is deemed to be in complete compliance with the CWA. Thus, the permittee is protected from enforcement actions by a regulatory agency and citizen suits by third parties.
There are situations, though, in which a permittee may discharge a pollutant that is not mentioned or listed in the permit. A literal application of the CWA would mean the permittee is in violation of the prohibition against discharging that pollutant without a permit. This is where the permit shield comes in. If the permittee is otherwise in compliance with the terms and conditions of the permit, the permittee may escape liability for discharging that pollutant if the discharge of that pollutant was adequately disclosed to the regulatory agency during the permit application process, and the discharge was reasonably contemplated by the agency when the permit was issued. The pollutant, although not listed specifically in the permit, is within the scope of the permit and the permittee is shielded from liability.
Some examples will illustrate the operation of the permit shield. In one case, an environmental group sued a permittee because it was discharging heated water (heat is a pollutant under the CWA) into a river. The permit did not list heat as a pollutant that may be discharged. However, the permittee was found to have disclosed during the application process that it would be discharging heat. As a result, heat was within the scope of the permit even if it was not specifically mentioned therein. In another case, the permittee did not disclose the fact it would discharge selenium. EPA’s regulations and its standard form application required the presence or absence of selenium be mentioned in the application. The applicant did not check any box, so the application and the permit were silent regarding selenium. As a result, selenium was not within the scope of the permit and the permittee was found liable in a citizen suit for discharging selenium in violation of the CWA.
Many of the standard form applications for a CWA permit contain lists of pollutants that allow an applicant to indicate whether the pollutant is or may be present. Regardless of whether the application has such a list, any pollutant that may be present in the discharge should be mentioned to the permitting agency, whether in the application itself or in another document submitted during the application process. The agency will decide whether to include a discharge limit for that pollutant. When you are later found by the agency or some environmental group to be discharging that pollutant, you will be able to rely on the permit shield to protect you from liability. For once, the provisions of the CWA will be of some help to you.