By William C. Schillaci
States Inconsistent, Says EPA
Apart from expressing the intention to write a rule requiring holders of NPDES permits to submit discharge monitoring reports (DMR), there are few if any concrete actions EPA has announced as part of its recently released Clean Water Act Enforcement Action Plan. However, even though the plan is short on specifics, EPA does take the opportunity to indicate its desire to execute a major shift in its enforcement priorities from the largest facilities to sources causing the most harm to water.
The plan outlines the Agency’s current thinking on the poor state of the nation’s waters; the various conditions that have contributed to the low quality; the uneven performance of authorized states and EPA regional offices in establishing compliance through permits; the equally poor enforcement record these authorities have built up; and the highly incomplete accumulation of information about the regulated community.
These issues have accumulated since the passage of the Clean Water Act (CWA) in 1972. At that time, the major concern was to regulate about 100,000 “large pipe” facilities that were polluting surface water virtually without control.
Today, the regulated community numbers about 1 million, and many of these are smaller sources covered by general permits for construction and stormwater. Existing regulatory tools developed under the CWA have not kept pace with changes in the regulated sectors. But more important, EPA’s approach to the whole issue of water enforcement is also greatly out of step. The Agency also throws some of the blame for the current state of affairs at state water agencies that have not taken a strong hand in either the types of NPDES permits they issue or in how these permits are enforced.
“State enforcement response to serious violations, whether at large or smaller facilities, is not what it should be,” says EPA. The Agency says it also bears responsibility because it has not required states to submit compliance and enforcement information about the hundreds of thousands of smaller facilities, particularly when these facilities are geographically clustered, which may be causing far greater damage than large facilities.
When states are not required to report enforcement data, there may be less of an incentive to undertake strong enforcement. But the problem goes deeper, says EPA, because even with the focus on large entities, the rate of significant noncompliance at these facilities is approximately 24 percent, meaning one out of every four has had significant violations. Moreover, state and EPA data indicate that formal enforcement actions were taken against only 26 percent of the facilities in significant noncompliance in 2008.
These trends may result from poor transparency, or the limited ability of the public to see clearly how the regulated community is performing and what enforcement agencies are doing about it.
Call to Congress
Overall, the Agency recognizes the urgent need to “revamp its enforcement and compliance program to focus on the most significant sources of water pollution and the most significant violations from those facilities.”
EPA also holds that its portfolio of existing rules do not cover all areas in need of regulation. In other words, even with ideal enforcement, significant problems will continue. For example, lawmakers who wrote the CWA have traditionally been criticized for omitting provisions to control nonpoint sources of pollution, such as suburban stormwater and agricultural runoff. EPA subtly makes its point that a revision of the CWA to address nonpoint source pollution would be welcomed.
The Agency also explicitly states its desire that any CWA rewrite resolve mounting problems created by two U.S. Supreme Court decisions (SWANCC v. Army Corps of Engineers and Rapanos v. United States) that “added layers of confusion regarding which water bodies are covered by the CWA in many parts of the country.”
The plan describes general actions EPA will undertake to address these large and complex problems. Most of these measures involve initial steps only, basically improving communication with states, industry, environmental groups, and other stakeholders on how to turn around the national CWA compliance and enforcement program. Regarding transparency, EPA’s thinking at this stage is to make more information about performance by the regulated community easily available to the public in formats that the public will easily understand. The Agency believes that a publicly accessible database for facility water performance similar to the toxic release inventory (TRI) “can be an effective driver for improved performance and accountability.”
In the enforcement plan, EPA states that input from its outreach efforts on improving NPDES compliance and enforcement was “surprising in its coalescence” around the following three themes for action.
Target enforcement to the most important water pollution problems. New approaches are needed to revamp the enforcement program to tackle violations of existing law by the sources of pollution posing the biggest threats to water quality and public health. EPA makes the point that the biggest threats do not necessarily come from the biggest facilities. Also, it is difficult to tailor the current framework for large-facility enforcement to other types of facilities and impacts.
The plan seeks to establish an EPA/state work group to analyze sectors and determine whether water quality problems are due to regulatory issues, inadequate permits, or compliance- related issues. Once problems are defined, EPA will try to tailor responses to the specifics of that sector and the specific water quality challenges. Responses might include enforcement actions, fixes to unclear or problematic regulations, or permit modification or reissuance to be more protective of water quality. In the context of this review, the effect of clusters of permitted facilities and their cumulative impact on water quality will also be reviewed.
A critical step is to link environmental information to compliance data to inform the targeting of compliance and enforcement efforts. EPA says it will incorporate data about water quality standards, existing water quality status (including information developed in conjunction with establishing total maximum daily loads for impaired water bodies), permit limits, and effluent violations to evaluate where violations contribute to water quality impairment. These data currently reside in different systems and have not been routinely used together to target serious problems. This effort would include analyzing newly available information on pollutant loadings and toxicity against compliance history and watershed impairment information to identify facilities that require additional compliance monitoring or civil or criminal enforcement attention.
While developing its new approach, EPA says it will commit to making timely, easily accessible, and understandable information available to the public concerning violations/violators, actions EPA and states are taking to address them, and the effects of these actions on water quality.
Strengthen oversight of clean water enforcement performance. Here the plan targets states. While EPA recognizes that some states have stellar water compliance programs that have served as “laboratories” for the federal government, other states are not issuing strong and protective permits—sometimes apparently to improve their own compliance and enforcement data—or are not taking enforcement actions to achieve compliance and remove economic incentives to violate the law.
Under the plan, actions to which states commit as articulated by aging CWA memoranda or agreements will be clarified or updated to contemporary conditions. EPA says it must set clear expectations for what is acceptable performance for permitting and enforcement programs and how that performance will be measured. The goal is to develop a standard set of expectations as a basis for negotiating “consistent enforcement agreements with each state, remedying the outdated, inconsistent and sometimes problematic memoranda of agreement.”
The Agency emphasizes that while new approaches and expectations are designed, ongoing oversight can work to raise the bar of performance for the current system. “Strong enforceable permits are the cornerstone for effective enforcement, and the two work together to protect the nation’s waters,” states EPA. “Underperforming” states can also expect EPA to use its authority to disapprove permits that are not protective of water quality and initiate enforcement actions against dischargers to address serious violations.
Improve accountability and transparency. Data sent to EPA by the states are often low in quality, accuracy, and completeness. Solutions to these problems are difficult because resources are insufficient to report and process the breadth of NPDES information. State water program resources are often drained by the work of manually entering data reported on paper DMRs to data systems. The resources needed to ensure complete data entry are not available to most states; hence, a large amount of important information is not entered. One of the chief resulting concerns is that lack of easily accessible data hinders transparency. According to EPA, “transparency is not a replacement for regulatory enforcement, but can be an effective driver for improved performance and accountability.”
EPA reports that a consensus suggestion from co-regulators and stakeholder groups was to implement electronic reporting for facilities that are required to submit reports to a regulatory agency.
EPA says it recently deployed a new electronic reporting tool called NetDMR that enables regulated facilities to submit their DMRs electronically to the national data system or a state system. Information from NetDMR can be shared immediately between state and federal systems through EPA’s National Environmental Information Exchange Network.
Presently, EPA can only encourage use of NetDMR. But pilot projects using electronic reporting tools show limited rates of success unless the tool is mandated. The full benefits of electronic DMR reporting can only be achieved when implementation is close to 100 percent, says the Agency.
Consequently, to fully realize the transformation of reporting and data, EPA says it will develop a rule to require NPDES permittees to provide DMRs electronically to EPA or states, using either NetDMR or an equivalent state electronic DMR system. Paper DMR forms will be phased out.
Under the plan, EPA also says it will “move immediately” toward making additional data that are not enforcement confidential available to the public.
The plan also includes three short-term actions to address known compliance and water quality issues.
- First, EPA will pursue new strategies to enforce existing rules limiting pollution from concentrated animal feeding operations (CAFOs), especially where they occur in areas close to imperiled waters.
- Second, EPA will revisit the division of work with states, many of which are facing near-term serious resource problems, to better utilize existing resources and make sure in the near term that the most serious water pollution violations are addressed.
- Third, EPA will now press for immediate electronic reporting. NetDMR is available for facilities to electronically report their DMRs. The Agency says it will urge facilities to shift to electronic reporting right away to reduce data entry costs and increase the accuracy and timeliness of information available to the public.
EPA’s Clean Water Act Enforcement Action Plan is available here.