Environmental Law: Required Permits Under Environmental Laws
Introduction
The complex body of environmental laws in this country regulates a wide variety of conduct that can contribute pollution to the air, land or water. The purpose of environmental laws is to limit or reduce pollution harmful to people, animals or the environment. One method the laws employ to control the creation and emission of pollutants is permits. Permit programs are a part of the laws regulating the air, land and water. Companies emitting regulated substances into any of these media must often obtain a permit to do so. Failure to obtain a permit may subject an individual or company to substantial fines and penalties. Various permits are required by the Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act.
Permit Programs Under CAA, CWA and RCRA
Part of the manufacturing process for a broad array of products is the production of waste that is released into the air, onto the ground, or into water. Some of this waste is considered hazardous at certain levels. These pollutants are carefully regulated to prevent a significant decline in the state of the environment, with attendant health risks. Permit programs help the government monitor the amount of pollution being generated and minimize decline in environmental quality. The Clean Air Act (CAA), Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) all utilize permit programs to further this goal.
Under the Clean Air Act, the EPA is charged with attaining and protecting air quality standards. The act achieves this goal through review and permit requirements for new and modified sources of pollution. This program is called the new source review, or NSR, program. Before a major stationary source of pollution can be constructed or modified, source authorities must review and analyze the impact the new or modified source will have on air quality. They must determine which pollutants will be produced and in what quantities. Then, the source must demonstrate to the EPA that the proposed new or modified facility will not hurt air quality.
Major sources of pollution subject to NSR review require two permits, a construction permit and an operating permit. The construction permit specifies the requirements the project must meet to comply with air quality laws. If the source is in an area that meets air quality standards, the permit application will be reviewed to ensure that the new source will not cause significant deterioration of air quality. If it is in an area that does not meet air quality standards, called a non-attainment area, it will undergo a different type of review. The construction permit will refer to technology and operations procedures that will be employed, and may include emissions and operational limitations. Once the construction is completed, the construction permit is "rolled over" into an operations permit, typically bearing the same terms and conditions. Operating permits were recast as comprehensive documents in 1990.
Title V of the CAA Amendments of 1990 created a comprehensive operating permit program. The primary purpose of this program was to consolidate all of a regulated facility's Clean Air Act requirements into a single document. The states are to develop their own programs for implementing the permit system, subject to EPA approval. This comprehensive operating permit program is modeled after the Clean Water Act's National Pollution Discharge Elimination System (NPDES), which took a unified approach from the beginning. Although the CAA system is intended to simplify Clean Air Act compliance and enforcement, many businesses have complained that implementing the new system has created significant additional costs because of the time and effort compliance requires.
Like the Clean Air Act, the Clean Water Act is based on quality standards established by the government. Companies that discharge waste into U.S. waterways may only do so in compliance with NPDES permits, which limit the amount and type of discharge. In addition, the permits ensure compliance with the CWA's technology-based, and water-quality based, requirements. The technology requirements set the standard of technology a facility must use to process its discharge, and the water-quality-based standards consider the conditions of the body of water into which the waste is discharged. The NPDES permits also contain monitoring and reporting provisions. The discharger must monitor its pollutants based on a variety of factors, including the pollutant, the nature of the discharger's operation, and any prior noncompliance issues.
The Clean Water Act also has permits for the release of dredged or fill material into navigable waters. These permits are specific to a particular disposal site. Permits under this provision apply to dredged or fill materials from activities such as farming, forestry and ranching; maintenance and reconstruction of structures such as dikes, dams, levees, bridge abutments and transportation structures; construction or repair of farm or stock ponds or irrigation ditches; temporary sedimentation basins on construction sites; and construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment. Permits applying to dredged materials and fill are administered jointly by the EPA and the Army Corps of Engineers.
Entities engaged in the treatment, storage and disposal of hazardous waste on land must secure a permit under RCRA. Another type of permit applies to facilities that generate hazardous waste without treating, storing or disposing of it. The permit application requires estimates concerning the composition, quantities and concentrations of hazardous waste, and the time or frequency in which the waste will be disposed of, treated, transported or stored. State permit programs must include notice to the public and opportunity for public participation. A RCRA permit is an extensive and complicated document describing the construction requirements for the hazardous waste management facility, and periodic testing requirements. The costs and effort involved in obtaining a RCRA permit are substantial--typically greater than that involving other types of environmental permits. The RCRA permit includes all of the requirements the facility must meet. Therefore, if the facility is in compliance with its permit requirements, it is shielded from liability for violating a hazardous waste requirement not listed in the permit.
Conclusion
The environmental permit system is an important means for government to track pollution with the help of the facilities that generate it. A unified system, where all of a facility's obligations are included in its permit, may be easiest for the government, but the consolidated Clean Air Act permit has been a source of headaches for the regulated industries. Permits under the Clean Water Act, which are also comprehensive, have been in place much longer, making compliance simpler for affected industries. RCRA permits are also complicated and extensive. Companies operating under any type of environmental permit must take care to stay in compliance, as stiff fines and penalties apply to violations.
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