In this case, the NAM supported Smithfield Foods seeking reversal of an EPA civil enforcement suit for violation of its National Pollutant Discharge Elimination System (NPDES) permit. Smithfield had an agreement with the Virginia State Water Control Board to meet new permit requirements, but the EPA sought to impose more than $12 million in fines despite an agreement Smithfield had reached with Virginia to connect to the local waste water treatment system.The Fourth Circuit ruled 9/14/99 that because Virginia had not formally modified the permit to allow certain discharges, its written statements that the phosphorous standard would not be enforced were irrelevant. It ruled that imposing both daily and monthly fines were not double counting. It also refused to allow Smithfield to offset its liability with payments being made to tie in to a municipal waste treatment facility.
The bottom line: letters from state officials, without changes in the actual permits, will not eliminate federal EPA enforcement of NPDES requirements, and EPA can impose strict financial requirements.