EPA Cites Legal Constraints To Using Permits For Compliance Schedules

摘要

Charleston,sc-epa officials say case law may prevent the agency from solely using Clean Water Act permits to establish long-term compliance schedules for infrastructure upgrades, forcing the agency to rely also on consent decrees or other enforcement actions to allow municipalities to undertake infrastructure projects sequentially as part of its integrated permitting approach. "We recognize there are legal constraints in what needs to go in a permit, what needs to go in [a consent] order, the constraints of commingling enforcement and permitting," Mark Pollins, chief of the water enforcement division of EPA's Office of Enforcement & Compliance Assurance (OECA), said Nov. 18 at a law conference here sponsored by the National Association of Clean Water Agencies (NACWA). "There are true and real and legal limitations on what you can put in a permit, and it's beyond policy, it's the law," Pollins said, noting that OECA has been in consultation with the Office of General Counsel on the case law governing the issue. Deborah Nagle, director of the permitting division of EPA's Office of Water, added that the problem with developing integrated permitting agreements through permits only is that there are restrictions on what can be accomplished with a permit compliance schedule versus a consent decree. EPA's defense of using enforcement mechanisms to address compliance schedules comes as the wastewater treatment industry is raising broad concerns about the agency's enforcement approach, arguing in a recent amicus brief to the Supreme Court in Sackett v. EPA that administrative compliance orders - the focus of the Sackett case - are only "the tip of the iceberg" of EPA's heavy-handed use of enforcement actions, rather than permitting, to achieve its environmental goals.