Compliance and Enforcement of NPDES Permits
Illinois NPDES Compliance Assurance/Enforcement Process Overview
In Illinois, achieving NPDES program compliance is our main objective whether it involves formal enforcement or not. Formal enforcement is one tool for obtaining NPDES program compliance. We protect the resources of the State through an integrated system of permitting and compliance assurance. Formal enforcement of a non-compliant facility, or to remedy a violation, is usually our last step in the compliance assurance process. Please see the Illinois Compliance / Enforcement Overview flow chart. The Illinois EPA is delegated the NPDES program from USEPA and, as such, receives federal funding to administer the permitting, compliance, monitoring, and enforcement activities of the program. USEPA sets the state’s priorities for the NPDES program, including enforcement in a document entitled the “Performance Partnership Agreement.” Traditionally, USEPA’s focus has been on addressing Significant Non-Compliance (SNC) occurring at the major dischargers. This strategy prioritized compliance and enforcement follow-up for the significant violations at the largest dischargers in the State. Discharges from the facilities classified as “major” account for over 93% of the total flow released to Illinois’ surface waters. On a quarterly basis, the percent of Illinois major dischargers without SNC violations is typically around 95%.
Our NPDES permitting and compliance assurance programs involve the issuance of permits, on-site inspection of permitted facilities by Field Operations Section (FOS) inspectors located in seven regional offices around the state (See map of FOS inspectors by region), compliance monitoring of those facilities by Environmental Specialists, processing permits and compliance documents by data entry staff, and legal support by attorneys who support the Safe Drinking Water Program (SDWA), as well.
How Does the Compliance Assurance/Enforcement Process Start?
Generally, the compliance assurance/enforcement process is initiated in three ways: (1) field inspection, either routine or complaint driven; (2) anomalous result, effluent violation on a discharge monitoring report (DMR) or failure to submit a DMR; (3) unplanned pollution event.
On-site inspections are completed by the FOS inspectors in the seven FOS regions, who visit sites based upon a complaint or a routine inspection. The FOS inspector generates a report. See attached map for a breakdown of NPDES permitted facilities by FOS region.
If areas of non-compliance with the regulations are noted, the FOS inspector may issue a Non- Compliance Advisory (NCA) for matters which do not have a significant environmental impact. For example, a recordkeeping deficiency may warrant a NCA.
If the violations are significant or if the facility fails to respond to an NCA, the FOS inspector, from the relevant FOS region, generates a request for a Violation Notice (VN) and forwards the request to Environmental Specialists for drafting, issuance, and follow-up. The VN initiates the Section 31 process, pursuant to Section 31 of the Illinois Environmental Protection Act (Act) discussed below.
Discharge Monitoring Reports (DMRs) are required to be submitted to monitor discharge compliance with NPDES permit limits. DMRs that are received are entered into the federal ICIS-NPDES data system. The Environmental Specialists may initiate a VN for effluent limit violations on the DMR; failure to submit a DMR or portion of a DMR, or an anomalous looking DMR. The Section 31 process is the same.
In the event of a pollution release, unauthorized discharge or other activity, the FOS inspectors investigate and generate a report. If the issue poses an immediate risk of harm, the Section 43 referral process, pursuant to the Act, is utilized by sending a request to our 5 attorneys. If immediate risk or harm is not an issue, the Section 31 process is utilized.
What are the statutory obligations of the Illinois EPA related to environmental compliance assurance/enforcement under the Illinois Environmental Protection Act?
The Section 31 of the Act sets the basic framework for environmental compliance assurance/enforcement.
Within 180 days of the Agency becoming aware of a violation of the Act, a regulation or a permit, it issues a VN informing the person of the facts related to the alleged violation. The person has the opportunity to meet with the Illinois EPA and explain the violation. The person may also submit a written corrective action and a Compliance Commitment Agreement (CCA) which sets forth time lines for returning to compliance with the Act and correcting any environmental harm. The individual may also meet with the Environmental Specialists and FOS inspectors. No penalties are sought at this stage and environmental compliance is expected to be promptly achieved. Since January 1, 2014, of the VNs issued that resulted in a CCA, 95 percent were resolved without the need for further formal enforcement.
If the Illinois EPA determines that the CCA is inadequate or that the environmental harm is significant, the Illinois EPA may reject the CCA and proceed to formal enforcement by issuing a Notice of Intent to Pursue Legal Action (NIPLA) letter to the person by the attorneys. The person is given another opportunity to meet with the Illinois EPA personnel and discuss in detail mechanisms for resolving the violation short of referral to the Attorney General’s Office (AGO) or the USEPA. (The Illinois EPA does not have independent litigation authority nor does it have Administrative Order authority.) Several matters are resolved at this stage.
If the person does not reach resolution after the NIPLA meeting, the matter is referred to the USEPA or to the Attorney General’s office for litigation, penalties, and a court order by the attorneys.