NPDES Enforcement Actions
Facilities should strive to be in compliance with the NPDES permit, stream standard regulations, and any other water quality regulations, rules, or statutes. In addition to monitoring requirements and effluent limits, a NPDES permit contains standard conditions with which a permittee must also comply.
The compliance program is truly a self-monitoring program. At the heart of the program is the submittal of discharge monitoring reports (DMRs), which are to be submitted no later than 28 days after the end of the reporting period. The regional office staff will review the DMRs and determine whether or not there were any permit limit or monitoring violations.
Notices of violation and civil penalties are examples of enforcement tools the Division uses in order to bring non-compliant facilities into compliance. Civil penalties and the options a permittee has when assessed a civil penalty are explained below. Other enforcement tools such as Moratorium and Special Orders by Consent are explained below as well.
Notices of Violation
Notices of Violation (NOV) serve to alert the permittee of permit infractions and request that whatever caused the violation be corrected immediately. Many times these will not include a fine. Depending upon the severity of the violation, the permittee may receive a Notice of Violation and Assessment of a Civil Penalty, which will include a fine.
If any of the following conditions are violated, the permittee may receive a NOV and/or be assessed a civil penalty:
Civil penalties are fines assessed against a responsible party for violation(s) of environmental regulations. The assessment of a penalty is based on the specifics of each civil penalty case. The law requires consideration of specific assessment factors by the assessor for each case.
What are the options when assessed a Civil Penalty?
Once a civil penalty has been assessed, the responsible party has three options. These options are explained in detail in an assessment letter received by the responsible party. One of the three must be selected within thirty (30) days of receipt of the assessment letter. The options are discussed below:
Option #1: payment of the penalty. The selection of this option simply entails the submittal of a check or money order made out to the Department of Environment and Natural Resources.
Option #2: request for remission of the penalty. A request for remission is an opportunity for the responsible party to submit information explaining mitigating circumstances for review. Once the request is received, Division personnel reconsider the amount based upon remission factors. A request for remission is limited to the review of the penalty amount and is not the proper procedure for contesting the accuracy of statements contained in the assessment letter. Because a remission request forecloses the option of an administrative hearing, the request must be accompanied by a waiver of right to an administrative hearing and stipulation that there are no factual or legal issues in dispute. The waiver/stipulation form is enclosed with the assessment letter. A Justification for Remission Request Form is also included with the assessment letter and should be completed and included with the remission request as well.
To receive a favorable remission decision, the assessed party must show their request satisfies one or more of the criteria for remission spelled out in G.S 143-215.6A and G.S. 143B-282.1(c) and (d):
Assessed parties are notified of the Director's remission decision and have the option of paying the (perhaps modified) penalty or continueing their appeal to the Environmental Management Commission.
Option #3: petition for an administrative hearing. This choice results in the opportunity for the responsible party to contest any statement(s) in the assessment letter. The contested case is heard by an impartial third party (hearing officer). This request must be in the form of a written petition and filed with the Office of Administrative Hearings.
A sewer line moratorium may be imposed by two different scenarios. One involves implementation of 15A NCAC 2H .0223 (the "80/90%" rule) and the other involves implementing a statutory moratorium by G.S. 143-215.67. Any facility that operates under a Special Order by Consent (SOC) is essentially under a statutory moratorium.
Special Orders by Consent
SOCs may be an appropriate course of action if a facility is unable to consistently comply with the terms, conditions, or limitations in an NPDES Permit. However, SOCs can only be issued if the reasons causing the non-compliance are not operational in nature (i.e., they must be tangible problems with plant design or infrastructure). Should you and the Environmental Management Commission enter into an SOC, limits set for particular parameters under the NPDES Permit may be relaxed, but only for a time determined to be reasonable for making necessary improvements to the facility. Applications for SOC and SOC amendments can be found on the Forms page.
A complete application must contain but not be limited to the following:
One (1) completed, signed, and dated original SOC Application and supporting information along with two (2) copies of the same should be sent to:
Division of Water Resources
A draft SOC will be sent to the permittee for review and signature. Once the Central Office receives the signed SOC, it will go through the Public Notice process. The SOC will be open to public comment for thirty (30) days, and fifteen (15) days after the public notice period ends, the SOC may be issued. However, if significant public comments are received, the Director may hold a Public Hearing.
For a list of current active SOCs, please see our home page.