Court Rules That Citizens Cannot Appeal Bad Wastewater Permits
by Ken Midkiff
Ozark Chapter Director
In a bizarre set of circumstances, the Missouri Appellate Court (Western District) has ruled that not only can impacted citizens not file administrative appeals on wastewater discharge permits, but that in fact the Missouri Department of Natural Resources (MDNR) Director lacks the authority to issue such permits.
This all began over a year ago, when the Ozark Chapter along with an impacted rural resident filed an administrative appeal of the conditions of a State Operating Permit issued to Premium Standard Farms (PSF), the giant hog–production company. The essence of the claims in the appeal was that the permit conditions failed to prevent the hog operations from fouling the creeks and rivers of the area.
The Chapter had previously been advised that we must exhaust our administrative remedies in order to have standing in a court of law. Consequently, the Chapter had filed several successful (and unsuccessful) challenges to permit conditions through the administrative appeal process. While such appeals are filed with the appropriate state commission — in the case at issue, this was the Missouri Clean Water Commission — an administrative hearing officer is appointed to conduct the proceedings.
The core of these matters is that in our review of the files of the Permits Section of the Water Pollution Control Program of the MDNR, we had ascertained that many of the State Operating Permits failed to provide even minimal protections for our state’s waterways. We found that the permits allowed high levels of various contaminants, and even high levels of pathogens — disease causing organisms such as e–coli, fecal coliform, and salmonella. Downstream residents to some of the permitted facilities joined the Chapter in several appeals — claiming that the permits allowed unacceptable levels of degradation.
But, all of this was thrown aside, when the administrative appeal was filed on the permit issued to PSF. Robert Brundage, the attorney for PSF, filed a motion in the Cole County Circuit Court, challenging the ability of “third parties” (i.e. anyone other than the permittee) to file an administrative appeal. The Court ruled in favor of PSF and threw out the Chapter’s appeal.
The State of Missouri (both MDNR and the Attorney General) and co–appellant Neil Craven asked the Missouri Appellate Court to take up this matter. The Ozark Chapter was not a party to this as we determined that our interests would be adequately represented by the State and our co–appellant.
But, in a strict interpretation of Missouri statutes, the Appellate Court upheld the decision of the lower court AND went further: stating that the Clean Water Commission had no authority to allow third parties or “any impacted person” to file administrative appeals (which the Commission had allowed through the adoption of state regulations). Then the Court threw in a real zinger: only the Clean Water Commission could issue permits “rather than granting power to the Director of MDNR.”
The Chapter, citing provisions in the federal Clean Water Act, which require the granting of administrative appeal rights to the public, filed a petition with the US Environmental Protection Agency asking that agency to establish an administrative appeals procedure since these rights were being denied by the State of Missouri. The Chapter, in a second petition, further asked that all permits issued by the State of Missouri be declared Null and Void, as these had been issued by an entity without authority to do so.
The US EPA responded to these two petitions in a letter dated July 28, 2000, that the petitions had been received and the EPA would initiate procedures to determine the validity of our petitions and to “identify, and , if necessary, correct, any barriers to full participation by the public in the NPDES permitting process.”
Attorneys are standing by.
State Operating Permits, National Pollution Discharge Elimination System Permits (NPDES) – how it’s supposed to work.
Through a Memorandum of Agreement, the US Environmental Protection Agency has delegated authority for implementing, administering, and enforcing the federal Clean Water Act to the Missouri Department of Natural Resources — Division of Environmental Quality (MDNR–—DEQ). Commonly referred to as “delegation of primacy,” this means that the MDNR—DEQ stands in place of the US EPA in matters related to the Clean Water Act. The same situation exists in all but five other states.
The US EPA provides oversight of the state program — and provides money for the state to do the federal government’s job. Regular reports are provided by the MDNR to the US EPA to ensure that the Clean Water Act is being appropriately administered.
One of the central components — the very heart — of the federal Clean Water Act is Section 402 — the National Pollution Discharge Elimination System or NPDES. MDNR—DEQ refers to these as State Operating Permits. Section 402 makes it illegal to discharge pollutants to waters of the state (which includes almost every creek, river, and lake) without an NPDES permit. This permit must contain conditions which are protective of water quality.
But, contrary to its title, the permits do not prohibit pollutants in wastewater discharges, rather the permits allow the discharge of contaminants within certain prescribed limits. These “effluent limitations” are contained in the permit conditions and are based on the beneficial or designated uses of the receiving waterbody.
With me so far? The designated uses can range from “full body contact, cold water fisheries (trout streams)” such as the Eleven Point River to “industrial” which is just another name for an open sewer. So, the amount or limits on contaminants can vary widely depending upon the designated uses. (For instance, for livestock watering streams —where it is assumed that there will be no contact by human bodies— there are no limits prescribed on fecal coliform or other pathogens.)
The Chapter Office receives the public notices of all NPDES permits proposed to be issued, re–issued or modified. We review all of these to determine if the permit conditions are protective of water quality — and we submit comments to MDNR—DEQ on the ones of concern. If our comments are not observed and changes are not made to the permits, we have in egregious situations, filed administrative appeals. Now, this last step has been taken away.