Permitting Pollution and Zombie Permits

The Big Back Log

Tony Bartelme’s article in today’s Post and Courier titled “Big permit backlog at DHEC raises questions” highlights the existence of zombie permits and a deficiency in the National Pollutant Discharge Elimination System (NPDES) here in South Carolina.

NPDES was created by the Clean Water Act in 1972 to restrict and eventually eliminate the discharge of pollutants into our waterways.  Under NPDES it’s illegal to release pollutants into the water, unless it’s authorized by a permit from DHEC. These permits are known as “NPDES permits.”  They contain limits on the types and amounts of pollutants a permit holder can discharge to our waterways.  And they are the primary tool DHEC uses to protect our right to clean water.

According to the article, statewide, more than 500 permit holders discharge pollutants under an expired permit.  Statewide the most out-of-date permit expired on April 30, 1994.  That’s over 18 years ago!

Our data indicate expired permits are an issue locally as well.  In the Ashley/Cooper River Basin about 36 permit holders discharge pollutants under an expired permit. The most out-of-date permit expired on July 31, 2000.  Over 12 years ago!  The most up-to-date permit became effective about 1 year ago on September 1, 2011.  It expires August 31, 2016.

Zombie Permits

Unfortunately NPDES allows this back log to happen.  That’s because, even though a permit expires after 5 years, a permit holder is permitted to continue discharging pollutants, so long as it applies for a new permit before the expiration date. During the limbo period after the permit expiration date, but before a new permit is issued, a discharger must continue to comply with the limits outlined in the expired permit.  These are known as “zombie permits.”

The 5 year renewal cycle is a very important feature of NPDES.  It allows   DHEC the opportunity to review a permit holder’s treatment performance, permit compliance, and water quality data before reissuing a permit.  In many cases that means better limits and controls on the pollutants a permit holder is allowed to discharge. It also allows the public and groups like Charleston Waterkeeper to weigh in on what limits should be included in a reissued permit.

Long story short, the public ends up with the short end of the stick.  Zombie permits chill the public’s right to be involved in the renewal process. And our waterways don’t get the full protection they deserve from up-to-date treatment technology and permit limits.

It’s disappointing that DHEC hasn’t taken advantage of the opportunity to fully protect our waterways. To be sure, the renewal process is often complicated and difficult.  Public comments can be lengthly and difficult to resolve.  Permit holders often employ environmental engineers, lawyers, and trade groups to advocate for favorable permits.  But, all this doesn’t excuse DHEC of its obligation to timely review, update, and reissue NPDES permits that protect our right to clean water.

Tackling the Problem

We commend DHEC and its Director Catherine Templeton for tackling the back log of expired NPDES permits.  But we urge caution.  Permits should not be reissued just to be released from limbo. DHEC should be provided with the staff and resources required to counterbalance pressure from permit holders.  Permits should only be reissued after thorough review by DHEC, input from the permit holder, and a full and fair opportunity for public participation.

At Charleston Waterkeeper we’ll continue working to establish a baseline of our permit holder’s treatment performance. We’ll also be active as permits in our watershed come up for renewal.  As a member of the public you can urge your local legislators to ensure that DHEC has the resources and support required to tackle this job.

NPDES has fallen short of eliminating all pollutant discharges to our waterways nationwide.  But it can work better for us here locally.  We’re working to ensure it does.

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