XI Environmental Permits in a Nutshell
Library | Illinois Environmental Law for Non-Environmental Lawyers (2017 Ed.) |
An environmental permit grants permission to construct or operate a source of pollution, to operate or construct equipment to control pollution, or to manage wastes.
The facilities that need permits are not limited to traditional smokestack industries. Permits may be required for equipment and activities that appear to have little, or no, environmental impact and they may be needed for a variety of industrial and commercial activities. For example, animal feedlots, coating and printing, landfills, sewage discharges, commercial bakeries, and heating plants for large buildings. They may also be needed for certain activities at nonprofit and government organizations, such as prisons, hospitals, airports, and sewage treatment plants.
The general practitioner will likely discover, as most environmental attorneys have, that environmental permitting is complex and often poorly understood. There are a number of common misconceptions regarding environmental permits which may give clients a false sense of security. It is not unusual for facilities to operate without permits for years before they discover that permits were needed.
Illinois does not have a unified environmental permit program. Instead, there are a variety of programs, depending on the media (air, water, and land), the size, type and location of the facility, and the materials being used or released into the environment. The existence of multiple permit programs can be confusing to the permittee. Some permit programs have their genesis in federal law but are administered by the state, for example, the National Pollutant Discharge Elimination System for water pollution, the Clean Air Act Permit Program for air pollution, and the Resource Conservation and Recovery Act permit program for waste management. Other permits are creatures of state law only, such as the Illinois air construction permit. In addition, units of local government may require their own environmental permits.
This article is intended to be an overview of the permit process that cuts across all media and gives some general, practical advice for attorneys whose clients may be subject to permitting. Media specific information will be found in the other Chapters in this book.
A. Legal Significance of a Permit
Generally, constructing or operating without a required permit or failing to comply with permit conditions are considered violations. State and federal permit violations often carry criminal penalties as well as civil penalties.
Some environmental statutes are written to achieve certain goals, for example, to improve the quality of a stretch of water. In order to accomplish this, the permit for one facility may need to be more stringent than the generally applicable regulations would require for similar facilities located in other areas of the state. Essentially, a permit can create legally enforceable requirements that are specific to the facility.
B. Permit Contents
A permit may be anywhere from a few pages to several hundred pages long. Most environmental permits consist of four basic parts:
1. Permit Scope
The permit will contain a description of the physical location and size of the facility and will include a list of the equipment or activities that are covered by the permit.
2. Limitations and Procedures
The permit will establish special conditions that are specific to the facility and are designed to maintain compliance with the applicable regulations. They may include limits on the volume or concentration of pollutants that may be released, the hours of operation, the efficiency of pollution control equipment, the amounts and/or types of material that can be used, and/or limits on the amount of product that can be produced. They may also specify that the certain operating procedures must be followed, for example, keeping solvent containers closed when not in use.
3. Sampling, Testing, Recordkeeping, and Reporting
Permits often contain provisions obligating the permittee to sample and test its emissions, effluent, wastes or raw materials, or to determine the efficiency of its treatment process. The permits may also require that records be kept of a variety of operating parameters so that an inspector can determine if the facility is complying with the limitations in its permit. The permit may require periodic...
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