April 13, 2023

Tackling the Zombies

Posted on April 13, 2023 by Ridge Hall

What can a frustrated state legislator do when the agency implementing the Clean Water Act fails to renew expired permits or sanction major violators? Legislation recently adopted by Maryland provides some innovative answers.

Here’s the problem.  An NPDES discharge permit may be issued for a term of up to 5 years, and nearly all states have this authority. CWA regulations provide that if a timely application for renewal is filed, and a permit expires because the state (or EPA Region) hasn’t had time to renew it, it is automatically extended until a new permit is issued. This was intended to be a brief extension while a permit renewal application is processed. However, often states allow these permits to continue without renewal for many years without updating them with more appropriate conditions.  These are called “Zombie” permits. There are thousands of them across the country, some of them more than 5 or even 10 years overdue. EPA often exhorts the states to renew them, but the states typically plead lack of resources. Getting permits promptly reissued is important to the protection of water quality because often new and more cost-effective control technologies become available, and the nature and scope of a facility’s operations and discharges, or conditions in the receiving water, may call for updated permit conditions.

Now the Maryland legislature has provided some novel tools to get the job done.  Maryland currently has an estimated 140 zombie permits and over 700 facilities in “significant noncompliance”. Yet during the past four years the number of inspections and enforcement actions has significantly declined. Under a law passed on April 9, effective July 1, 2022, the Maryland Department of the Environment must clear its entire backlog of zombie permits by December 31, 2026. MDE must inspect each facility that has been operating for over a year with an administratively extended permit at least once every 90 days, and report annually to the Governor and the General Assembly the number of facilities with administratively extended permits.

To deal with facilities that MDE or EPA have determined to be in significant noncompliance with any Clean Water Act or permit requirement, MDE must inspect these at least monthly. Any facility that remains in significant noncompliance more than twice in a year must submit a written report describing how the violations will be corrected and the timeline. It is subject to CWA daily penalties for the noncompliance, plus additional penalties imposed under this law that escalate for continued noncompliance. A list of these violators must be posted on MDE’s web site and provided to each member of the General Assembly monthly.

By October 1, 2022, MDE was required to report to the Governor and the General Assembly the number of additional employees necessary to clear the backlog of administratively extended permits, process all discharge permits promptly, conduct the needed inspections, and bring appropriate enforcement actions. In response to MDE’s estimated needs, the General Assembly this year provided funding for 14 new permit writers and 29 inspection and enforcement personnel, increasing the staffs of these functions by roughly 50%. Starting in 2025 MDE must report annually to the Governor and General Assembly the number of administratively extended permits and the number of additional positions needed for the following year to ensure that any permits administratively extended for more than a year will be promptly renewed.

The new tools provided by the Maryland legislature can serve as a model for other states in their efforts to reduce their backlogs of zombie permits and facilities in significant noncompliance. EPA would do well to promote them.

(Disclosure: The Chesapeake Legal Alliance, of which I serve as Vice Chair, participated in developing this legislation.)