Compliance Orders in West Virginia

It's not always possible to meet water pollution discharge permit limits when they are put in a NPDES permit. Sometimes a limit in a reissued NPDES permit for a pollutant like iron will be reduced from the limit in the previous permit, and the permit holder will need time to figure out how to meet that new limit. When that happens, the only thing that can be done short of shutting down the facility is to issue a compliance order. Compliance orders are being questioned as a result of the fish kill on Dunkard Creek, and have been the subject of a recent WV Public Radio story.

Compliance orders allow a certain amount of time to meet permit limits. They are usually issued in connection with a NPDES permit reissuance, and they establish interim deadlines for evaluating treatment options and for developing a strategy for meeting the limit. The regulatory authority for compliance orders is found in the NPDES rule, 47 CSR 10, Section 8 (page 27 of the web-linked document). Without compliance orders, permittees might be in immediate violation of their revised permit, and might have to shut down their businesses in order to avoid operating in violation of the law.

Compliance orders are not the same as consent orders, which are agreements with the WV DEP to pay penalties for violations of the West Virginia Water Pollution Control Act. The rule governing assessment of consent orders is found at 47 CSR 1. Consent orders are punitive in nature, usually involving a monetary penalty. They are administrative actions that are offered in lieu of civil litigation. If no agreement is reached on a penalty in a consent order, the DEP will usually file an action in the appropriate circuit court, where the penalties are usually higher.