Clean Water Act, Section 308 Requests for Information

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So…you have received a Request for Information from the US Environmental Protection Agency (USEPA) pursuant to Section 308 of the federal Clean Water Act. A Section 308 request is done when the agency has reason to think that your facilities are not in total compliance with their NPDES permit limits. No need to panic – just start compiling the needed information.

Often the first thing that companies do after receiving a Section 308 letter is to call an experienced environmental attorney to get some assistance in working through this process. Odds are you wouldn’t have received this letter if you did not have some exceedances of NPDES permit limits, so the attorney can help you work through usually inevitable enforcement discussions with the USEPA.

Here are the types of information that the USEPA will typically ask for in Section 308 letters. You will need to pull this information together into one location so it can be copied and shipped to the USEPA:

  1. A list of all of your facilities by name, location, NPDES and mining permit numbers.
  2. Copies of each NPDES permit and permit applications for each identified facility.
  3. NPDES data for the past five years (or more), including your Discharge Monitoring Reports (DMR’s) and, often, the lab sheets upon which the DMR’s were based.
  4. You will need to summarize the information from items #1 through #3 (and any additional requested information) into an Excel spreadsheet(s).

Mining facilities with NPDES permits that have discharge violations of metals, chloride, TDS, TSS, pH, etc. may be faced with hefty fines, as well as corrective measures to address and eliminate non-compliant discharges. These corrective measures typically include additional monitoring and reporting, implementing an electronic environmental database management software, implementing an environmental compliance management system, developing a response plan for eliminating effluent limit violations, and conducting internal and/or third-party environmental audits. Depending on the parameters in question, expensive treatment (or pre-treatment) systems may need to be installed.

Known recent civil penalties have ranged from $4 million to $20 million, which doesn’t include costs for corrective measures. Given the amount of money at stake, it is crucial to go into meetings with USEPA as prepared as possible.

If you have questions about the Section 308 process as it relates to mining companies, please contact Jonathan Pachter in our Pittsburgh office at 1-800-365-2324 or jpachter@cecinc.com. Additional information regarding EPA Section 308 matters can be found at the EPA’s website.

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