Environmental Justice: Permitting and Enforcement

Environmental Justice:Permitting and Enforcement Seminar Unit #2 Prof. Christopher L. Howard

PERMITS • per·mit • 1 v. pərˈmɪt; n. ˈpɜr mɪt, pərˈmɪt/ Show Spelled [v. per-mit; n. pur-mit, per-mit] Show IPAverb, -mit·ted, -mit·ting, noun • –verb (used with object) • 1. • to allow to do something: Permit me to explain. • 2. • to allow to be done or occur: The law does not permit the sale of such drugs. • 3. • to tolerate; agree to: a law permitting Roman Catholicism in England. • 4. • to afford opportunity for, or admit of: vents to permit the escape of gases. • –verb (used without object) • 5. • to grant permission; allow liberty to do something. • 6. • to afford opportunity or possibility: Write when time permits. • 7. • to allow or admit (usually fol. by of ): statements that permit of no denial. • –noun • 8. • an authoritative or official certificate of permission; license: a fishing permit. • 9. • a written order granting special permission to do something. • 10. • permission. • http://dictionary.reference.com/browse/permit

Water Quality • Water Quality Permits • The people of Washington State are supported in their goal for clean water by many state laws and regulations, including the state's Water Pollution Control Act (Chapter 90.48 RCW), which explains that Washington State's policy is to ". . . maintain the highest possible standards to insure the purity of all waters of the state consistent with public health and public enjoyment . . . the propagation and protection of wildlife, birds, game, fish and other aquatic life, and the industrial development of the state." Ecology is also delegated by Environmental Protection Agency (EPA) to implement the National Pollutant Discharge Elimination System (NPDES) permit program from the Clean Water Act. In general, the discharge of any wastewater, except domestic wastewater going to a municipal treatment plant, requires a wastewater discharge permit. This includes stormwater from industrial and construction sites and some municipal sites. Discharges to surface waters require a NPDES individual permit or coverage under a general NPDES permit. Discharges to ground and industrial discharges to a municipal treatment plant require a State wastewater permit. Construction of any wastewater treatment facility other than an on-site sewage system below 100,000 gallons/day needs Ecology approval (Chapter 90.48 RCW and 173-240 WAC). Because these same facilities may or may not require an individual wastewater discharge permit, the project should be discussed with Ecology as project planning begins. Other permits or authorizations are required for public water systems regulated by Department of Health, on-site sewage systems below 100,000 gpd, reclamation and reuse of treated wastewater, underground injection, construction that impacts surface water, laboratory analysis of material if the data goes to Ecology or Department of Health for drinking water systems, and operating a wastewater treatment plant. • http://apps.ecy.wa.gov/permithandbook/category.asp?id=8

Air Quality • Air Quality Permits • Air pollution control in Washington is based on federal, state and local laws and regulations. The federal Environmental Protection Agency, the Department of Ecology (Ecology), and local clean air agencies, all regulate air quality. Ecology implements and enforces air quality regulations in counties without an air pollution control agency. Ecology also has jurisdiction over primary aluminum plants, pulp mills, vehicles, and vehicle-related sources. For contact information about the state's seven local clean air agencies and Ecology's regional offices, addresses, and telephone numbers, see Local Clean Air Agencies. If you are located in one of the following counties, you have a local clean air agency: Benton, Clallam, Clark, Cowlitz, Grays Harbor, Island, Jefferson, King, Kitsap, Lewis, Mason, Pacific, Pierce, Skagit, Skamania, Snohomish, Spokane, Thurston, Wahkiakum, Whatcom, or Yakima. Please select the local air authorities link for information on air quality permits in your county. Local clean air agencies may implement and enforce most state regulations. All local agencies have their own regulations that may be more restrictive than those of Ecology. These more stringent regulations are not addressed in this guide. Large new energy related resources, such as thermal/nuclear power plants, oil refineries, pipelines, etc., are under the jurisdiction of the Energy Facility Site Evaluation Council (EFSEC). http://apps.ecy.wa.gov/permithandbook/category.asp?id=1

State Permits • DEP uses both individual and general permits to regulate activities. Individual permits are issued directly to an applicant, whereas general permits are permits issued to authorize similar minor activities by one or more applicants. Authorization of an activity under a general permit is governed by that general permit. • There are three basic types of general permits or ways of authorizing activities using a general permit. Each general permit describes the necessary level of approval needed to initiate an activity, which can include one or more of the following: • a person conducting an activity described in a general permit may initiate the activity without prior registration (some of these permits may require later registration); • a registration is required prior to initiation of the activity (this registration frequently requires certification of a professional engineer); or • CT DEP approval is required prior to initiation of the activity. In some cases this approval will contain site specific conditions in addition to those already contained in the general permit. • Since the general permit process may be quicker and less costly, be sure to check the following list in order to determine whether any of your activities may be eligible for authorization under a general permit before applying for an individual permit. Consult each specific general permit for further information paying special attention to the definitions of applicability. • http://www.ct.gov/dep/cwp/view.asp?a=2709&q=324154&depNav_GID=1643

Public Participation • Public participation is an integral part of the Department's permitting process. Recent changes to the law have provided for early public notice of proposed activities to allow the public to have meaningful input into the environmental permitting process. Overall, this earlier notice and comment leads to a more efficient permit process with a better end result for all.The public's participation in the permitting process is important for two reasons. First, because the Department protects and conserves the environment and natural resources of the state on behalf of the people of the state, it is appropriate they have a role in the Department's permitting process. Second, many of the proposed activities reviewed by the Department may have a localized impact. Therefore, nearby property owners and affected communities need to understand the potential impacts of such activities and make the Department aware of concerns and potential conflicts.How Does The Public Learn About Proposed Activities? • The different permit programs have various methods of notifying the public of a permit application. Most applicants are required by law to publish notice of their applications in a newspaper of general circulation in the locale of the proposed activity and then send a copy of the notice to the chief elected official of the municipality in which the regulated activity is proposed. The Department also has the authority to require an applicant to post signs at the site of the proposed activity with information about the pending application. In addition, the Department's new environmental equity policy encourages applicants to communicate with the local residents about the nature of their proposed activities both before and after applying for permits.After the Department staff has reviewed an application and made a tentative determination whether to approve or deny it, the Department publishes a notice of this determination in the newspaper.How Can The Public Participate? • http://www.ct.gov/dep/cwp/view.asp?a=2709&q=324160&depNav_GID=1643

Information Gathering • The Department gathers comments from interested persons in a number of ways. In some cases, the staff will hold an informational meeting prior to making its tentative determination both to inform local citizens of the proposed activity and to answer their questions. In most programs, after the publication of the tentative determination there is a formal public comment period (typically thirty days) before the Department can take final action on the application. During this comment period, anyone may provide written comments. In some cases, a formal public hearing may be requested. As discussed below, informational meetings differ from formal hearings in several important respects.Informational Meetings • The Department may hold one or more informational meetings for the public, particularly when there is likely to be significant public interest in a proposed project. The permit applicant and Department staff are present at these meetings to answer any questions that members of the public may have about the application and the permitting process. Permit applicants typically make presentations at such meetings to explain their proposals.Formal Hearings • Formal hearings on permit applications may be held at the Department's initiative. In some programs a formal hearing must be held if the Department receives a petition signed by at least twenty-five people. At a formal hearing, also known as an adjudicatory hearing, the permit applicant has the burden of demonstrating that the requested permit should be granted. Members of the public may ask questions and comment on the application at the hearing. Members of the public may also become intervenors in permit proceedings, in accordance with certain laws.At a formal hearing, an impartial hearing officer presides, and hearing participants may communicate with him only in the presence of all the other participants. After the hearing is closed, the hearing officer issues a proposed decision based solely on the evidence presented during the hearing. The proposed decision is distributed to the applicant, Department staff, and to any intervening parties. Any party who takes exception to the proposed decision may, within fifteen days after issuance of the proposed decision, request oral argument before the Commissioner. After any oral argument, the Commissioner issues a final decision. Any party who takes exception to that decision may, as allowed by law, appeal to Superior Court. • http://www.ct.gov/dep/cwp/view.asp?a=2709&q=324160&depNav_GID=1643

Regulations • Why does DEP use regulations in addition to statutes?1 • Very often the General Assembly passes legislation that delegates regulatory authority to the commissioner of the Department of Environmental Protection. Once the Governor signs this type of legislation into law, the Department is authorized (or in some cases mandated) to draft regulations. • What is a regulation? • Generally speaking, a regulation is that part of the law that is known as administrative law. Regulations are what state agencies like DEP use to more specifically establish how a general law (say a statutory requirement to improve water quality) is to be implemented. In Connecticut, the term regulation is defined in state statute2: • "Regulation" means each agency statement of general applicability, without regard to its designation, that implements, interprets, or prescribes law or policy, or describes the organization, procedure or practice requirements of any agency. The term includes the amendment or repeal of a prior regulation, but does not include (A) statements concerning only the internal management of any agency and not affecting private rights or procedures available to the public, (B) . . . or (C) intra-agency or interagency memoranda. • What is the Connecticut Uniform Administrative Procedure Act (UAPA)? • In 1972, Connecticut enacted a uniform state law known as the Uniform Administrative Procedure Act. This law is codified in the General Statutes of Connecticut (CGS) as Chapter 54 (Sections 4-166 et. seq.). Connecticut’s UAPA establishes procedures that state agencies must follow when performing listed administrative functions. One of the administrative functions that a state agency (like DEP) performs is the development of regulations that are codified into the Regulations of Connecticut State Agencies (RCSA). The Connecticut UAPA sets out the procedures that state agencies must follow to adopt regulations. In Connecticut, a standing committee of the General Assembly (Regulations Review Committee) must ultimately approve a regulation before it becomes law. Regulations are given the same weight as statutes once the regulations have been properly enacted. • What is the procedure for making regulations (rulemaking)? • http://www.ct.gov/dep/cwp/view.asp?a=2704&q=323520 • .

Rules of Practice • In addition to defining the term regulation, Chapter 54 of the CGS requires that each state agency "adopt as a regulation rules of practice".3 DEP adopted Rules of Practice that are codified in RCSA Sections 22a-3a-2 through 22a-3a-6. RCSA Section 22-3a-3 entitled Regulation-making describes the procedures the Department must follow. These regulations must be read in conjunction with CGS Section 4-167 through 4-174. • What is an emergency regulation? • Connecticut’s UAPA describes a special procedure for adopting emergency regulations. Codified at Section 4-168(f), an emergency regulation can be adopted by a state agency in an abbreviated way. Highlights of the emergency regulation process include situations in which: • there is an imminent peril to the public health, safety or welfare or • the Commissioner of Environmental Protection needs to comply with the provisions of interstate fishery management plans adopted by the Atlantic States Marine Fisheries Commission or to meet unforeseen circumstances or emergencies affecting marine resources • What typical steps are involved in adopting regulations? • The following are some of the important steps DEP typically follows when developing regulations: • The Department announces its decision to pursue regulation adoption or amendment. • The need for an advisory group (and coordination with other state agencies) is evaluated and usually convened. • DEP legal counsel works with staff and stakeholders to complete the regulatory proposal • http://www.ct.gov/dep/cwp/view.asp?a=2704&q=323520

Regulation Process • An Assistant Attorney General is consulted for an informal review. • An draft fiscal note, certification sheet, public notice, small business impact statement, appointment of hearing officer, and statement of purpose is prepared. • A public "Notice of Intent to Adopt / Amend Regulations" is approved by DEP legal counsel and sent to the Connecticut Law Journal for publication. (Such notice must be published 30 days before any hearing is held.) • Hearing held if properly requested or on Department’s own initiative. • Public comment accepted. • Hearing record closed. • Hearing report, final proposed regulations and revised fiscal note prepared by DEP. • Final proposed regulations and associated documents approved by Bureau Chief, Deputy Commissioner and Commissioner. • Final proposed regulation and fiscal note submitted to OPM. • Notice of availability of regulation and hearing report mailed to everyone that commented on the regulations and certification of mailing done. (Must be mailed 20 days before submittal to Regulations Review Committee.) • Formal submission of the regulatory package to the Attorney General for a legal sufficiency determination. • Submission to Regulations Review Committee of the General Assembly and Office of Fiscal Analysis (for required regulations, must be 180 days after public notice published.) • Regulation Review Committee considers proposed regulations. • If rejected, the regulation may be resubmitted to Regulations Review Committee and Office of Fiscal Analysis (for required regulations, must be resubmitted by 1st Tuesday of 2nd month after rejection.) • Regulation filed with Secretary of State (within 14 days of Regulation Review Committee approval.) • Regulation published in Connecticut Law Journal. • Regulation published in Regulations of Connecticut State Agencies. • http://www.ct.gov/dep/cwp/view.asp?a=2704&q=323520

Enforcement • Effective enforcement is key to ensuring that the ambitious goals of our environmental statutes are realized. Enforcement refers to the set of actions that the government can take to promote compliance with environmental law. . Currently, rates of noncompliance with environmental laws remain disturbingly high; experts believe that as many as twenty to forty percent of firms regulated by federal environmental statutes regularly violate the law. Tens of millions of citizens live in areas out of compliance with the health based standards of the Clean Air Act, and close to half of the water bodies in the country fail to meet water quality standards set by the Clean Water Act. In communities burdened by multiple sources of pollution, noncompliance has particularly serious health consequences for affected residents. • As in virtually every other area of government regulation, environmental enforcement traditionally has been based on the theory of deterrence. This theory assumes that persons and businesses act rationally to maximize profits, and will comply with the law where the costs of noncompliance outweigh the benefits of noncompliance. The job of enforcement agencies is to make both penalties and the probability of detection high enough that it becomes irrational– unprofitable-- for regulated firms to violate the law. • http://www.progressiveregulation.org/perspectives/environEnforce.html

Future of Enforcement • In recent years there has been a sharp debate over the future direction of environmental enforcement. Many states and regulated entities advocate a more business-friendly, conciliatory enforcement strategy, one that does not emphasize enforcement actions and penalties as the keys to securing compliance. In their view, businesses are likely to comply without resort to sanctions because of adherence to social and political norms, market forces, and other factors. • What’s At Stake?-Whether the protections of our environmental laws will be implemented effectively-Whether environmental quality will improve Thus, many states have reduced funding for inspections. enforcement cases and similar activities, and shifted resources toward compliance assistance programs. Some have created “customer service centers” for regulated entities. Many states do not follow EPA guidance for responding to violations with “timely and appropriate” enforcement actions. Many impose only limited penalties on violators, penalties that typically are far lower than those assessed by EPA in similar circumstances. Many states fail to recover economic benefit when assessing penalties--a core element of deterrence theory. In the past decade, almost one-half of the states have enacted environmental audit privilege or immunity laws that preclude penalties for violations voluntarily disclosed and corrected by regulated entities as a result of environmental audits. These laws also keep materials contained in environmental audits secret and exempt from public disclosure. • http://www.progressiveregulation.org/perspectives/environEnforce.html

EPA • At the same time, EPA has to some degree deemphasized traditional enforcement and used its limited resources to provide more compliance assistance to small businesses and other regulated sectors. It has also searched for positive incentives for companies that carry out self-policing efforts. Until very recently, however, EPA has continued to demand that the states impose sanctions, conduct inspections, and bring enforcement actions as the main tools for deterring firms from violating the law. EPA also resisted the most far-reaching efforts of states to weaken enforcement of environmental laws. Funding shortfalls and emerging policy changes in such areas as whether new sources must obtain new permits have taken their toll and EPA’s commitment to deterrence-based enforcement appears to be weakening. • In reaction to these changes, environmental groups, contend that government enforcement is too lax, that too often fines for violating environmental requirements have become no more than a routine cost of doing business for regulated entities, and that the government lacks the resources to pursue most violations. They would like to more vigorously enforce environmental violations. During the past decade or so, however, the Supreme Court has erected a series of hurdles to citizen enforcement of environmental laws. The Court has imposed restrictions on who has standing to bring suit, what type of illegal conduct can be challenged, when a decision is “ripe” for suit, when government agencies can be sued, and when attorneys fees can be awarded to successful plaintiffs’ attorneys. These court-imposed obstacles have significantly undermined the role envisioned by Congress for citizen enforcers • http://www.progressiveregulation.org/perspectives/environEnforce.html

Federalism • A number of elements are critical to to effective environmental enforcement: • As agencies expand compliance assistance and incentive programs, they must maintain a strong, credible threat of enforcement. Strong enforcement motivates many regulated parties to strengthen their internal regulatory systems and promotes voluntary compliance by ensuring firms that voluntarily comply that other firms cannot gain a competitive advantage by not complying with applicable laws and regulations. • To encourage regulated entities to develop voluntary compliance programs, firms that conduct audits or carry out other self-policing efforts should be rewarded with benefits like less frequent inspections or lower fines. But these self-policing systems should supplement, not replace, traditional enforcement activities. Audit privilege and immunity laws are unnecessary and undesirable. They are unnecessary because there are many existing incentives for firms to conduct audits even without such laws, including lower insurance premiums, reduced waste, reduced liability, and others. Such measures are undesirable because they complicate and increase the costs of enforcement, and shield important environmental information from the public. • Information disclosure has proven to be a potent force in motivating firms to improve environmental performance (see CPR Perspective on Right to Know). EPA and state agencies should publicly spotlight the compliance and performance status of regulated entities to generate important public pressure for compliance and improved performance. • EPA should implement a “differential oversight” scheme that rewards states that have effective and successful enforcement programs with reduced oversight and greater flexibility, and publicly report its evaluation of state enforcement programs in order to motivate states environmental performance with the power of an external spotlight (See CPR Perspective on Devolution.) • Citizen enforcement plays a valuable role in promoting environmental compliance, spurring agency enforcement efforts and providing an important deterrent to noncompliance when government agencies fail to act either because of lack of resources or political will. Federal environmental and civil rights statutes should be amended to ensure citizens access to the courts to enforce environmental violations. • http://www.progressiveregulation.org/perspectives/environEnforce.html

Wrapping It Up • Permits Defined • Air and Water Quality Permits • State Permits • Information Gathering • Public Participation • Regulations • Rules of Practice • Regulation Process • Enforcement, Rules and future • EPA • Fedreralism

Environmental Justice: Permitting and Enforcement