On Jan. 12, 2000, the U.S. Supreme Court made it easier for private citizens to establish standing.
In Friends of the Earth v. Laidlaw Environmental Services Inc., the Court decided that the mere fact that a permit violation occurred justifies a citizen’s fear, and that the fear itself constitutes his legal injury.
Although the state regulatory agency testified that Laidlaw’s permit limit, a stringent mercury limit, had been erroneously calculated and that its investigations had confirmed that the industry’s permit violations had not affected the river in any way, the Supreme Court found that the plaintiffs had been injured.
The Court reasoned that knowledge of the violations affected the plaintiffs’ desire to picnic, hike and even drive near the river, and held that this fear, though based solely on review of paper records, constituted a compensable injury.
The permittee was assessed more than half a million dollars in penalties. Costs of the extensive litigation, a trial and two federal appeals, were substantial as well.
In Pennsylvania, DEP provides public access to permittee records on its Web page (www.dep.state.pa.us; click eFACTS). Combine this easy access to compliance data with the new standard that mere knowledge of violations confers standing to sue, and it becomes imperative to avoid permit violations.
Laidlaw spent more than a million dollars over a period of five years trying to meet its mercury limit and eventually succeeded. This did not shield Laidlaw from citizen suit or from a substantial penalty. Full compliance is the only security.
Question Limits
In light of Laidlaw, it is now important that discharge limits be no more stringent than necessary to protect the environment.
Permittees often make Laidlaw’s mistake, accepting erroneous discharge limits that they cannot reliably meet. This can happen when the permittee does not independently evaluate the correctness of proposed permit limits.
Except for certain discharge standards established directly by regulation, NPDES permit limits should be determined based on actual data and in conformance with water quality regulations.
In Pennsylvania, DEP calculates NPDES limits mostly using conservative assumptions, not actual site data. Limits calculated in this way are often more stringent than necessary to protect receiving water quality.
If DEP cannot prove that a limit is necessary to protect water quality, the permit should be challenged.
DEP recognizes that its methods are conservative and will accept permittee-generated data. Generating relevant and acceptable data requires a thorough understanding of DEP’s calculation methods and the regulations and policies that govern how it develops permit limits.
It also requires early and continuing communication with DEP. This proactive approach to permit limits, assuring that they are no more stringent than necessary, is the best response to the newly-unleashed “citizen attorneys general.”
Randall G. Hurst is an attorney with Mette Evans & Woodside, a Harris-burg-area law firm. Hurst holds a masters degree in environmental pollution control, and is a senior qualified environmental professional, with more than 24 years of technical experience in the fields of wastewater treatment and regulatory practice.
