North Carolina
on the 30th Anniversary of the Clean Water Act
“Keeping the Promise…
or…Down the Drain?”
A Challenge to
the NC General Assembly, NC-DENR and the Public
Will starvation funding of
water protection programs,
low regulatory
expectations,
client relationships with polluters,
and inadequate data management
be allowed to degrade NC waters?
~~Clean Water for North Carolina~~
29 ½ Page Avenue, Asheville, North Carolina 28801
(828) 251-1291, info@cwfnc.org
July,
2002
Executive Summary
Since 1996,
the “Peoples’ Environmental Enforcement Campaign,” a coalition of North
Carolina grassroots groups frustrated with the failure of North Carolina’s
environmental agency to protect their communities and public resources, has
demanded aggressive action to stop chronic violators and issuance of weak
permits that don’t hold polluters accountable.
Clean Water for North Carolina (CWFNC), the environmental justice
non-profit which has coordinated the campaign, works with communities for more
protective permits and swift, effective enforcement against polluters.
This year,
the 30th Anniversary of the federal Clean Water Act, our
organization’s water quality enforcement research shows that North
Carolina facilities with permits to discharge to
public waters continue to have hundreds of water quality violations for which
little or no enforcement action has been taken.
As a result, the state is failing to recover the economic benefits that
facilities gain by violating their permits, is setting a standard of low
expectations for water discharging facilities, and is failing to protect
communities and water quality.
While water
quality enforcement actions reached a record level in 2000, under the
leadership of NC Department of Environment and Natural Resources (DENR)
Secretary Bill Holman, there were still issues on which the environmental
community had to take forceful action to make the agency enforce its own
policies. In 2001, Attorney General Mike
Easley became Governor Easley and chose Bill Ross to be DENR Secretary. Since that time, there has been a shift away
from enforcement, and toward incentives and compliance assistance to polluters.
We lay the
blame for our state’s failure to meet the intended goals of the Clean Water Act
squarely at the feet of the NC General Assembly and the power and influence of
industrial and development interests. Legislators have refused to fund even a
minimum critical number of enforcement positions or an upgrade in data
management. The General Assembly continues to entertain industry-proposed legislation
to undercut accountability and environmental protections. On occasion, members
even intervene directly on behalf of polluters in their districts or industry
associations to prevent effective enforcement.
This severe lack of support by the legislature results in:
chronic funding shortfalls for a “captive”
agency and environmental staff at the Attorney General’s Office,
low expectations for permitting, monitoring,
inspection and penalty assessments,
failure to aggressively support penalty assessments,
to seek injunctive relief or deny permits to chronic polluters, or to follow up
on unpaid penalties,
poor data management that makes oversight by
Region 4 EPA or citizens nearly impossible.
In order to
get DENR on a “fast track” for polluter accountability, particularly in its
water quality protection programs, Clean Water for North
Carolina calls for the following measures:
For the NC General
Assembly:
Pass legislation to reduce conflicts of interest
by General Assembly members and regulatory staff;
Fully fund all DENR positions, including those
currently vacant, to assure permitting and enforcement activities can return to
2000 levels quickly;
Plan strategically for budgeting an incremental
increase in much-needed agency positions and data management for the next three
years;
Create a system of “pre-permit bonding,” for
compliance assurance in new permits; and permit renewals, where there is not a
five-year period of substantial compliance with NC and federal regulations.
For the NC Department
of Environment and Natural Resources:
Eliminate all non-public means of appealing
assessed penalties available to permittees, including discretion by regional
supervisors, and the Director of the Division of Water Quality. Require that all considerations of penalty
reduction involve public notification, with opportunity for testimony by the
impacted public;
Establish leadership for “zero tolerance” at the
DENR for chronically out of compliance facilities, requiring deadlines for
compliance activities with stipulated penalties and aggressive pursuit by the
Attorney General’s office for non-payment;
Set a workload limit for permit writers and
compliance staff to prevent issuance of new permits until staff time permits
adequate inspections and compliance monitoring;
Separate the functions of “compliance
assistance,” which should only be
available for publicly-owned facilities,
and compliance inspections and penalty assessments, in order to keep “client”
relationships from reducing effective enforcement;
Immediately develop and implement a simple
electronic format for submitting facility Discharge Monitoring Reports, linked
to daily, weekly and monthly limits for each permit, allowing for rapid
identification of violations and trends at a facility, as well as accurate
posting to public databases for oversight functions.
For the Citizens of North Carolina:
Meet the challenge of the polluter lobby at the
NC General Assembly, committing time to legislator education and accountability
on water quality and other environmental issues;
Demand uncompromising campaign finance reform,
with public financing of candidates to free “the best legislature money can
buy” for public interest lawmaking;
Get involved in monitoring conditions in your
local community, reporting concerns to agencies, and planning for sustainable
infrastructure;
Take advantage of all possible existing
opportunities for public participation and work to expand them;
Monitor and report local environmental problems
to state and non-profit agencies right away.
“Adopt
A Permit” for a facility in your area, especially one showing compliance
problems in EPA’s “Permit Compliance System” Database, by contacting Clean
Water for North Carolina or your local watershed organization.
“Keeping the
Promise…or…Down the Drain?”
Will starvation
funding of water protections,
low regulatory expectations,
client relationships with polluters,
and inadequate data management
be permitted to degrade NC waters?
Introduction
In an era of increasing public demands for transparent
accountability and in the midst of a four year drought causing major challenges
to water resources, it is critical that North Carolina’s water protection
programs—especially its enforcement of water quality regulations—come under
close scrutiny. At this writing, at
least 36 of NC’s 100 counties are under some measure of water use restrictions,
and water quality managers are acknowledging that water quality degradation is
an unavoidable consequence of lower natural flows while municipal and industrial
discharges are steady or rising.
2002 is the 30th anniversary of the federal
Clean Water Act, whose framers intended to make almost all of our rivers and
streams “fishable and swimmable” by 1983!
It is high time for North Carolina
to do its part to keep the promise of the Clean Water Act to all Americans by
establishing firm and uncompromising accountability for all sources of
pollution discharge.
Like most states, North Carolina has an EPA “delegated
program” of water quality permitting as part of the National Pollutant
Discharge Elimination System (NPDES) for “point sources”—discharges
directly from pipes or channel into public waters. The Division of Water
Quality in the Department of Environment and Natural Resources is responsible for regulating these permits as
well as investigating contamination of water from facilities without permits,
and “non-point” pollution such as construction runoff.
In 2000, after years of pressure from “downstream”
communities and grassroots environmental groups, and the Enforcement Campaign
of Clean Water for North Carolina (CWFNC), North Carolina’s
Division of Water Quality assessed a record number and dollar amount of water
quality penalties. The leadership of
DENR Secretary Bill Holman, whose strong communication with environmental
groups deepened his awareness of the real impacts on communities of weak or
failed enforcement and permitting, was important in this effort.
NC Attorney General Mike Easley, whose office had defended
the state’s decision not to enforce its own regulations preventing spraying of
hog waste on saturated fields after Hurricane Floyd in 1999, became Governor
Easley in early 2001, and selected attorney Bill Ross as DENR Secretary. Since that time, water advocacy groups have
reported a decreased emphasis on water quality enforcement and a shift in
policies toward compliance assistance and incentives to “work with” polluters
to bring them into compliance. Such
approaches are unproven in their effectiveness and distrusted by the public, as
strongly indicated in focus groups organized by CWFNC for DENR in 2000.
Staffing levels, skill, leadership and morale at the
Division of Water Quality and DENR as a whole determine the quality of our
state’s environmental stewardship. The completeness and enforceability of water
quality permits, the ability to carefully and frequently inspect facilities and
follow up on public complaints, and the capacity to review self-reported
facility data and act promptly to correct and penalize problem facilities all
depend on adequate funding for the agency.
While portions of this report are quite critical of agency
enforcement and data management, let there be no mistake: CWFNC believes that
the deepest rooted problem in NC water quality accountability is chronic
funding shortfalls for an agency continually dependent on the regulated
community’s good will. We are acutely
aware, from conversations with deeply concerned DENR staff, that there are very
principled and talented employees who are willing to work hard to protect NC’s
waters, but are very discouraged at this time about the future of their agency
and our state’s environment.
While unfilled DENR positions are being held hostage in
current legislative budget proposals, it is nearly impossible for the Division
of Water to plan and carry out their program mission. In this critical time,
when the value of water to human and ecological health, economy, and quality of
life have never been more clear, an immediate and long term strategy for
INCREASING budgetary commitment to water protection programs is imperative for
North Carolina. We hope that this report’s critique and recommendations will be
taken very seriously in funding and implementation of water regulatory policy
by Governor Easley, the NC General Assembly, DENR Secretary Bill Ross, Division
of Water Quality Director Alan Klimek and program managers at all levels.
CWFNC believes that there are some effective, relatively
low cost responses to the deficiencies we describe, but we know that NC has
historically ranked low in per capita spending for environmental protection (Green
Index, Institute for Southern Studies). A short-sighted,
“industrial-strength” economic development strategy by 20th century
NC administrations has left our people dependent on jobs created by external
investment that have no loyalty to our environmental quality or economic
sustainability. These “outside
interests” have also made our legislators particularly subject to influence from
polluting economic interests and has kept our regulatory agencies weak and
tragically lacking in resources.
It is time for a completely new era in NC environmental
policy, hopefully signaled by our state’s leadership on air quality issues
through passage of the Clean Smokestacks Act, and leading to more aggressive
and well-funded programs to protect water quality.
This is the first of at least two reports on water quality
enforcement to be issued during this “Year of Clean Water” by CWFNC. A forthcoming report by the Conservation
Council of North Carolina details how lack of political will and inadequate
resources result in limited enforcement of laws designed to protect our air,
land, water and health.
1. A “Captive Bureaucracy”—Strangulation Funding for NC-DENR
North Carolina’s General Assembly has failed to provide
funding for even minimal staffing requests from DENR for regulatory positions
in recent years, much less competitive salaries to inspectors, permit writers,
and scientists. Stresses associated with heavy workloads and lack of support
from elected officials result in poor recruitment, low morale and rapid
turnover of even talented and committed personnel.
In discussions
with senior permitting personnel, we have been told that a person with
comparable engineering training could have a lighter workload and at least
$12,000 more in salary per year working in one of the industries regulated by
DENR, particularly after agency experience. Staff turnover is, therefore, a
very serious problem. “We have trouble getting and keeping good staff,”
admitted one manager in the NPDES program, resulting in unfilled positions and
workloads so heavy that he admits that permits may sometimes contain mistakes
or have unenforceable provisions.
While part of the enforcement role of the Division of
Water Quality consists of issuing Notices of Violation and assessing penalties
for self-reported violations of effluent limits, more time-consuming tasks
include compliance inspections and responding to reports of water contamination
events. Due to low staffing levels,
response time to complaints is long, investigations are often quite limited,
and public access only adds to the heavy staff workload.
Recommendations:
Fully fund all DENR positions, especially in
DWQ, including those currently vacant, to assure permitting and enforcement
activities can return to 2000 levels quickly.
Plan
strategically for budgeting an incremental increase in much-needed agency
positions and water quality data management for the next three years;
2. DENR’s “Revolving Door”
Elected officials
often make appointments to top environmental regulatory positions of persons
who know they will be able to look forward to a typical lucrative post-DENR
career in an industry that they have regulated.
A look at the recent history of top Water Quality officials
shows the depth of the problem. Tommy Stevens, immediate past director of the
Division of Water Quality, recently announced his retirement—and simultaneously
his new job with the NC Pork Council. As
the director of DWQ, Mr. Stevens ran programs that were supposed to regulate
hog farms.
Stevens’ predecessor was
Preston Howard, who had also been in charge of the state’s air quality
program. Howard now is president of the
Manufacturers and Chemical Industry Council, a trade association that fought
the Clean Smokestacks Act and continues to lobby to weaken industry
regulations. Before him, the DWQ was
headed George Everette, who retired to become chief lobbyist for Duke
Energy. And his predecessor, DWQ
director Paul Wilms, retired to became a lobbyist with the Homebuilders
Association, now working to undercut enforcement for what is probably the
state’s greatest single water quality problem—sediment and erosion.
Should we be surprised that NC communities can’t get
protective permits and enforcement to prevent damage to our resources, with
expertise from our agencies being used by the “regulated community” to weaken
regulations, permits and enforcement?
Recommendations:
Reduce
conflicts of interest and interference with agency mission by drafting and
implementing legislation creating a five-year period in which regulatory staff
could not be employed or contracted by industries they had regulated.
3. Legislative Interference
with DENR Mission
Like legislators everywhere, members of the NC General
Assembly are expected to provide constituent services. When those services include intervening to
prevent the application of environmental laws, either through granting of an
inappropriate permit or preventing fair enforcement on a polluter, they work
directly against the health and public resources interests of the member’s
broader constituency.
Business and industry in a member’s district, or
industrial associations interested in keeping regulatory burdens light, are
often given special access to legislators. then are reported to have
intervened, especially at the Division Director level, to seek special favors,
most often to facilitate a particular industrial activity or to seek relief
from assessed penalties.
Recommendation:
Create penalties for legislators who intervene
against the public interest to prevent fair application of environmental laws
and regulations or who seek special permitting or enforcement favors for
polluters.
4. NC DENR Failure to
Fulfill Commitments to EPA
In September of 2000, The Office of Inspector General of
EPA issued a report critical of North Carolina Water Quality permitting and
enforcement and Region 4 EPA oversight. The OIG report documented that the NC Division
of Water Quality had:
failed to review and report violations from
daily or weekly discharge reports, and
failed to take into account records of repeat polluters
been slow and inconsistent in its enforcement,
often treating small permit violators at least as punitively as major ones
failed to assess fines that will remove the
economic benefits of non-compliance
allowed permit holders to use methods of
chemical water quality analysis which are not sensitive enough to detect
violations
granted permits that don’t meet EPA standards
for livestock feeding operations
NC water activist groups and concerned citizens followed
with a group of letters to federal and Region 4 EPA officials, as well as NC
DENR and Division of Water Quality, documenting a severe local problem and
agency failure to hold a polluter accountable. In February of 2001, the OIG
investigator for the report, John Walsh, responded to Clean Water for North
Carolina that NC DENR had committed to substantive
responses to all of these issues by July1 of 2001. The contrast with the
results accomplished is telling.
DENR committed to incorporating in its penalty assessment the economic
benefit gained by violators from non-compliance into penalties for egregious
and chronic repeat violations, to begin implementation on July 1, 2001.
Results:
Region 4 has provided training to DWQ compliance staff in use of the standard
“BEN” software but, “Have we implemented this for any enforcement action yet?
No, we believe it would slow us down to enter the necessary data.”
In order to move quickly to
compliance schedules for chronic violators, DENR committed to seeking
delegation from North Carolina’s Environmental Management Commission (EMC) for
the authority to issue unilateral Special Orders by Consent (SOCs) to establish
compliance deadlines for chronic violators.
Results: No
such delegation has been sought (and some environmentalists are concerned that
DWQ might write even weaker SOC’s without EMC oversight).
DENR agreed to timely
identification of exceedances of daily and weekly permit limits.
Results: In
file searches thus far, we have found some identification of daily and weekly
violations, but these seldom result in more than Notices of Violation, and, in
the rare cases that penalties are assessed, it is only a $250 weekly average
violation, none for daily limit violations. (By contrast, the maximum daily
violation is $10,000 per violation per day).
DENR committed to working
with EPA Region 4 to phase in the use of better test methods for total residual
chlorine and mercury, sensitive enough to actually
detect violations of water quality standards.
Results: While compliance staff assured us that
these test methods were actually implemented ahead of schedule, a senior permit
writer tells us they were still under study early this year. We have found
that, in at least one major permit, mercury was eliminated from the permit
altogether, following an analysis of “potential to exceed” that was based on
the higher detection limit for the less sensitive test.
5. Low Expectations, Multiple Escape Routes for Violators
When a violation is detected either on a facility’s
self-reported Discharge Monitoring Report or in a compliance inspection, a
Notice of Violation is to be issued by the agency. Often these NOV’s are issued several months
after the violation (an improvement from over a year, as EPA found in 2000!),
and may be accompanied by assessed penalties.
DWQ does not post NOVs on its website, so there is no way to determine
the percentage of these notices that result in penalty assessments. Some Regional Offices appear to use penalty
worksheets based on the 1998 Policy Guidance issued by DWQ, others do not.
In any case, there is little or no documentation for the
decision to assess penalties in the first place. Where they occur, initial penalties are a very small percentage of the maximum daily fine
of $10,000, even for weekly or monthly average violations, which
would tend to indicate that the facility is likely to have violated limits for
several days during the period. Regional staff from two DENR offices have told
us that they tend to start with very low assessments, even for repeat
violators, to save time in fighting later appeals. The result is often exactly
as we see in the case of the modest $74,000 penalty for hundreds of sludge
over-application and other violations by Raleigh’s Neuse River Wastewater
Treatment Plant—the facility knows a “good deal” when they see such a penalty
for a very large number of violations and is likely to simply pay the fine, far
below compensation for economic benefit of non-compliance.
There is no involvement of the public in these appeals, so
the pressure on regulators comes only from the self-interested polluter. An NOV
issued with penalty assessment offers the permit holder the opportunity to
provide mitigating information to staff in writing. Responses from chronically
non-compliant facilities have included such excuses as plant “upsets” which
continue for several months, or that operators “sought help” to deal with the
problem.
NC-DENR’s “Compliance 2000” Report gave us an overall look
at the extent to which fines are upheld in each division during settlement
processes which allow extended appeals by polluters with no input from impacted
communities. The comparison is helpful
for seeing how the various programs function in holding violators accountable
at different stages. Note that the penalty per violation isn’t even available
for the NPDES program, so dollar amounts may represent multiple violations.
Nevertheless, the penalties for water quality violations start at a very low
level and, by the time the fines are paid, less that 44% of that amount is
collect by the agency. Sediment
violations in the Land Quality Section have a relatively high assessment per
NOV ($10,670), but settlements reduce them to only 26% of this level, almost
all of which is collected.
By contrast, in the state’s Hazardous Waste program, a
high frequency of inspections and willingness to assess high penalties have
resulted in greater credibility with citizens and higher compliance
levels. Note that even after settlement
(see chart), the penalty amount collected is over $10,000, enough to get a
company’s attention. Other programs have much to learn from this leadership. The Land Quality Section, for example, which
admits that it only issues NOVs for a tiny fraction of inspection violations,
and assesses fines even more rarely, is estimated to need about four times as
many inspectors in order to protect water quality. (The Homebuilders Association regularly
lobbies legislators to vote against increases in DENR staff.)
Analysis of Fines from Several DENR Programs
in 2000
Recommendations:
Eliminate all non-public means of appealing
assessed penalties available to permittees, including discretion by regional
supervisors, and the Director of the Division of Water Quality. Require that all considerations of penalty
reduction involve public notification, with opportunity for testimony by the
impacted public;
Establish leadership for “zero tolerance” at the
DENR for chronically out of compliance facilities, requiring deadlines for
compliance activities with stipulated penalties and aggressive pursuit by the
Attorney General’s office for non-payment;
Use the example of penalty assessment in the
Hazardous Waste program of DENR to assess tough penalties closer to maximum
allowed fines. Even after negotiation, the resulting fine is enough to lead a
facility to invest in pollution prevent and/or negotiate a strictly enforceable
compliance schedule.
Create a system of “pre-permit bonding,” for
compliance assurance in new permits and permit renewals where there is not a
five-year period of substantial compliance with NC and federal regulations.
This would provide essentially an escrow fund for ready collection of penalties
for permit violations;
6. Fewer Inspections,
Weakened Enforcement
In the current wave of corporate scandals involving “off the
books” accounting, there has been little attention to the long history of
polluting industries piling up profits while passing along most of the expenses
for natural resources used or degraded to the public. EPA has estimated that
74% of publicly traded companies are in violation of Securities and Exchange
Commission disclosure requirements of “environmental debt” for clean ups and
evading regulatory requirements. Governor Mike Easley and the NC Dept. of
Environment and Natural Resources have touted reduced penalties in 2001 as
evidence of “success” in enforcement,
resulting in what they interpret as higher compliance rates, but which may only
be moving more environmental damage “off the books”.
In our analysis of recent enforcement data for water
quality, we have come to a quite different conclusion. In fact, even the EPA
Inspector General’s call in 2000 for the Division of Water Quality to impose
penalties that would “compensate for the benefits of non-compliance” has fallen
on deaf ears—water pollution penalties actually FELL by more than 36% in 2001.
Using EPA’s Permit Compliance System database (described in
section below), CWFNC researchers Andy Hecht and David Herbert found a similar
number of “limits and monitoring” violations in 2000 and 2001, with similar
numbers and sizes of penalties assessed (see Table 2), so there is no evidence
of improving compliance by dischargers.
TABLE 2:
COMPARISON OF
ASSESSED PENALTIES -WATER QUALITY
2000
2001
Number Amount($)
Number Amount($)
ALL ASSESSED WQ PENALTIES
764 2,255,044
678 1,422,430
EFFLUENT LIMITS,
MONITORING 533 877,115 540
803,329
ALL OTHER TYPES OF WQ
PENALTIES 231 1,377,929 138
619,101
Enforcement action has decreased dramatically, however, for
the kinds of nonpermitted discharge violations that can only be found by inspectors, rather than paper reviews. While 231 penalties were assessed for such
violations in 2000, only 138 were assessed in 2001, with the penalty amounts also
dropping by an average of nearly $1,500 per violation!
The amount assessed per
Effluent Limit or Monitoring penalty by permitted facilities is far lower
($1,646 per penalty for 2000, $1,488 per penalty in 2001, often including
multiple violations) than the inspector-dependent penalties resulting from
non-permitted discharges ($5,965 per penalty in 2000 and $4,486 per penalty in
2001). While we agree that nonpermitted discharges can be quite serious, the
rate of penalty assessment for discharge violations from permitted facilities,
even for repeat violators, is only a small fraction of the maximum possible
penalty, indicating that the ongoing regulator-permittee relationship may lead
to greatly reduced initial penalty assessments.
7. DENR-Client Relationships with Permit-Holders
Budget problems and failed agency leadership for true
polluter accountability keep DENR morale low and workloads nearly impossible
for permitting and enforcement staff.
Division of Water Quality staff concerned about the effectiveness of the
agency have told us that DENR Secretary Bill Ross has demonstrated that he
believes in incentives and compliance assistance, both of which grass roots
community activists deeply distrust as creating new rights for polluters. Some
concerned current and former staff members have told us that Ross “doesn’t have
the stomach” for the kind of stiff enforcement that citizens and advocacy
groups DO trust as the method for achieving community justice and protection.
Enforcement is acknowledged in DENR’s “Compliance 2000”
report, issued last November, to be the “most trusted” tool the Department has
for achieving compliance, as it provides a mechanism for holding permitted
facilities strictly accountable for performance. In contrast, incentives and “compliance
assistance” are perceived by most citizens as creating new “rights” for
regulated facilities, rather than getting effective action, and may even
nurture conflicts of interest for regulators providing these services.
Citizens frustrated with failure of the agency to hold
polluters accountable are often told by DENR officials, “our job is to work
with the facility to get them in compliance.” This response only deepens
resentment about the use of state’s limited resources to provide services to
polluter clients instead of collecting fines that compensate for the economic
benefit to polluters of failing to meet state or federal laws.
CWFNC believes that “client relationships” established
between regulatory personnel and permit holders, coupled with weak minimum fine
guidelines issued in DENR’s 1998 policy, make payment of penalties a minor cost
of doing business for polluters.
Regional office files show that regulators are inclined to accept
excuses (“tried to get help”, or “continuing upset at facility”) for reducing
or eliminating fines for repeat violators, with no hearing or further review.
There is an intrinsic conflict of mission for engineers and
other regional office personnel to be providing taxpayer funded compliance assistance
and also to be expected to recommend and support assessment of penalties. Under such conflicted professional
circumstances, penalty assessments would appear to represent a failure of DENR
personnel in their compliance assistance as well as performance failure by the
permittee.
DENR must realize that their mission is protection of
public resources, meaning that the “regulated community” must not be seen as
their primary clients. The citizens and the ecosystems of North
Carolina are their true clients, and service to these
clients must be foremost in the agency's policy and actions.
Recommendations:
Set a workload limit for permit writers and
compliance staff to prevent issuance of new permits until staff time permits
adequate inspections and compliance monitoring;
Separate
the functions of “compliance assistance,” which should only be available for publicly-owned
facilities, and compliance inspections and penalty assessments, in order to
keep “client” relationships from reducing effective enforcement;
7. The Problem of Permits
The ultimate accountability for pollution prevention rests
in the permits granted for potentially polluting activities. Permits are
complex and often beyond the non-technical understanding of concerned local
citizens. While permitting staff have recently been attempting to hold
pre-permit meetings with citizens where there is a history of controversy,
those meetings seldom result in substantive changes to the actual conditions in
draft permits. Citizens have strong reason to believe that the discretionary
parts of permits have been determined well in advance of public notice with the
polluter and that participation is simply a waste of time.
Santeetlah Lake Sacrificed—In Graham County in the late 1980’s, a trout farm pond
was partially constructed on a tributary to Santeetlah
Lake before a permit had been
issued. Rather than refusing to permit
the facility, DWQ staff assessed a small fine and then expedited a general
permit, with only monitoring requirements, and no permit limits. Within the first year of operation, signs of
excess nutrients were clear, with citizens reporting algal blooms as well as
sewage-like odors in the Lake. Despite this early experience, DWQ proceeded
to permit 3 other trout ponds on this stream and two more on another arm of the
Lake, and to renew all of those permits in both 1992 and 1997, still imposing
no limits on the trout farmers. Large
portions of this beautiful mountain lake have been a sickly shade of blue green
for most of the period from 1989 through 2001.
Still, DWQ refused to reopen the permits and pointed to
the trout farmers’ “rights” created by the granting of the permits. Not until the Clean Water Management Trust
fund set a requirement for strict limits for, as a condition of a grant to
buyout the trout ponds, did conditions start improving in the Lake. We hope that the buyout will be completed
this year, but these are permits that should never have been granted and
renewed.
A Betrayal on Paper—In
preparation for Blue Ridge Paper Products’ permit renewal for discharging 29
million gallons a day of pulp and bleach waste streams from the Canton Mill to
the tiny Pigeon River,
environmental groups tried to work cooperatively. Several of these groups had
sued DWQ along with the state of Tennessee
over a weak 1996 permit, and achieved a very successful settlement, requiring
the Mill to continue improving water quality at the “fastest possible pace.”
A joint environmental coalition/Blue Ridge Paper study of
oxygen-based pulping processes showed that there would be major improvements in
water quality, particularly reductions in dark color and chlorinated chemicals,
from installing six affordable technologies.
An EPA study selected two of those six technologies as most promising
and proposed reducing the limits for the Mill’s discharge accordingly. The
permit issued by DWQ failed to meet even EPA’s lowest expectations of color
reductions, and will not require even those most feasible technologies to be
installed. Environmental group and
downstream participants in this disappointing process told Region 4 EPA that
they had been given the message that “cooperation doesn’t work,” and that
agencies should expect more confrontation, as that is what had achieved
progress previously.
It is left to non-profit groups, with even more limited
resources than DENR, working with local citizens to build capacity for public
participation. Even after citizens learn
to evaluate technical issues in a draft permit, their comments are often
marginalized and rationalized away, and the impetus to continue to reduce
pollutant discharges is lost.
Recommendations:
DENR must implement a policy of placing strict
numerical limits for all discharged pollutants justifying any failure to reduce
pollutant levels in successive permits. Further, DENR must be responsible for
acquiring all available literature on ecosystem and human health impacts of
components of each discharge and fully disclosing those in permit fact
sheets. Instead of providing an
opportunity to laud permit holders for accomplishments often made because of
citizen pressure and legal action, fact sheets must portray an accurate and
complete picture of the regulatory history of a permit under review.
As reasonable precautionary measure, CWFNC calls
for development of a “pre-permit bonding” system, where all new permits or
renewals of permits for facilities with a history of compliance problems, would
require posting of a bond proportional to the extent of potential environmental
damage. The burden of proof and costs of
polluting operations must be borne by the regulated community, not the public,
if we want to have a liveable North Carolina for future generations.
DENR should require certification of substantial
compliance, with public review, for permit renewal. The model of the Shellfish
Sanitation program, where facilities must be certified as in compliance to
retain their permits is a powerful one for achieving accountability.
8. Unreliable Data Prevents
Effective Oversight by Citizens and EPA
The “Truth in Penalties”
policy trumpeted by Governor Easley is far from a reality. For years, CWFNC has
been calling for “cradle to grave” tracking and public disclosure of violations
and enforcement. While some penalty data
are now available on DENR’s website, DWQ offers the least information of any
DENR division, with no linkage to date, number or severity of violations.
Penalty listings don’t show whether the penalty was reduced and if it has been
paid. Inspectors who recommend higher penalties for repeat or blatant
violations often do not know the final outcome of their efforts, but are aware
of the multitude of opportunities for polluters reduce assessed fines.
The U.S. Environmental Protection Agency (EPA) administers
the Envirofacts Data Warehouse, containing publicly accessible environmental
data from all fifty states. One of
those databases, the Permit Compliance System (PCS), contains information about
NPDES water discharge permit limits, actual concentrations and violations, made
available to the public so that citizens may review water permits and
compliance records for licensed dischargers.
The online PCS database information is based on
self-reported data from dischargers on their monthly Discharge Monitoring
Reports (DMRs). In North
Carolina, the DMRs are submitted on paper by
dischargers to the Division of Water Quality (DWQ), which then enters the data
into a computer, and periodically uploads it to the EPA PCS database.
It should go without saying that, for public access to the
PCS database to provide meaningful citizen “right-to-know,” the data reported
in the database must be accurate. Based
on our review of a portion of the NC data corresponding to three of DENR’s
seven regional offices, the data reported by North
Carolina to the PCS database is rife with errors that
seriously compromise this data for EPA and citizen oversight of performance and
enforcement of polluting facilities.
Examples of Data Problems
Recent file searches in the Raleigh and Asheville Regional
Offices for 3 permitted facilities revealed that over 50% of the violations
reported in the PCS database to be in error. Here are a few examples of the
types of discrepancies that exist between the actual Discharge Monitoring
Reports and the data entered into the PCS database:
1) Weekly and daily violations are not reported to the PCS
database.
To pick but one of many examples,
the Wilson City Wastewater Treatment Plant April 1999 Notice of Violation (NOV)
shows one Monthly “Biological Oxygen Demand” (BOD) violation, and 4 Weekly BOD
violations. The monthly violation
appears in the PCS database list of effluent violations, but the weekly
violations do not. Perhaps indicating a
data entry error in the other direction, the PCS database shows a Fecal
Coliform and a Mercury violation for April, even though neither appears on the
paper Notice of Violation sent to the company.
2) Fahrenheit temperature measurements for discharges are
compared to permit limits in Celsius degrees, resulting in incorrect violations
returned by searching the PCS database:
According to the PCS database, the
Duke Power Cliffside Steam plant has 6 temperature violations that occurred
between 1998 and 2001. With a limit of
35°C, values between and 48.7 and 62.9 seem like major violations. However, a file search revealed that these
high numbers were in actuality the measurements as given in Fahrenheit. They were being compared, without conversion,
to the limit as it was listed in Centigrade.
After proper conversion, it is evident that none of these violations had
actually occurred.
3) Dissolved Oxygen (a measure of oxygen level in the water
for sustaining life, higher values are better) concentrations are sometimes
incorrectly flagged as violations when the value is greater than the permit limit:
The DuPont Kinston Fiber plant has
a Dissolved Oxygen (DO) minimum limit of 2.5 mg/L, unusually low because it is
measured inside the plant before adding oxygen to the discharged water (usually
the lower limit at the discharge point is 6 mg/L). The PCS database reports DO “concentration
average” effluent violations by DuPont for every month between 1999 and
2001. In fact, there is no
“concentration average” limit required by the permit, only a daily minimum. None of the reported DO violations had
actually occurred. DENR staff we spoke
with said they would correct this error in the PCS data .
Selected NC
Violation/Enforcement Examples from the PCS Database:
Despite these data shortcomings, there are dozens of
facilities across the state with a large number of apparently authentic
violations in the PCS database for the 1998-2001 period, but showing only a
small number of enforcement actions during the same period.
(The authors almost
wish that the following data from the EPA data were not accurate!)
High Point East Side Wastewater Treatment Plant had about
120 violations with 17 assessed penalties totaling $45,000;
Tuckaseegee Water and Sewer Authority had over 120 Discharge Monitoring Report violations, with only 4
assessed penalties, totaling $2,800;
CNA Holding, a plastics manufacturer in Shelby,
accumulated 37 violations with 5 assessed total penalties of about $8,000;
Charlotte Municipal Utility District Mallard Creek
Wastewater Treatment Plan had over 125 violations with $22,000 assessed for 6
penalties;
PCS Phosphate Company in Aurora
had 92 PCS violations for which apparently no penalties were assessed.
Recommendations:
As it stands, our tax dollars are financing a database
packed with unreliable data. With data
in this condition, it is impossible for policy makers, advocacy groups and
citizens to stay informed about water quality compliance in our state.
While DENR has generally been responsive to our requests to
investigate and clean up these errors, there is no reason for the errors to
occur in the first place. The most likely reason is that the analytical data
and permit limits are wrongly transcribed from the Discharge Monitoring Reports
into the DENR computer system.
Therefore, our strongest recommendation for increasing public
accountability is that DENR provide a simple computer interface for dischargers
to submit their DMRs to DENR and then to EPA.
Direct Computer Interface for DMR Submissions:
The paper DMR is an unnecessary step in reporting, since the data ultimately
ends up in a computer system. When DMR
data is entered electronically into the system, the possibility of
transcription error is eliminated.
Additionally, dischargers can be held accountable for the numbers
appearing in the PCS database, because they were entered by the dischargers
themselves.
“Cradle to Grave” Violations and Penalty Reports
Must be Available Online. As it stands, the PCS database reports enforcement
actions, but it does not link them to particular violations. In order to gauge the effectiveness of water
quality enforcement, researchers must be able to tell whether DWQ has followed
up on any given violation. To do this,
the penalty reports should be made available online and linked to the specific
violations, the dates on which they occurred and the ultimate settlement and
payment status of the penalty. All NOV’s should also be posted on DENR’s
website, to provide public accountability for a system that assesses penalties
in a minority of cases, even in the case of some facilities operating under
consent decrees with stipulated penalties.
9. Public Participation Not Facilitated
In order to make regulatory efforts “visible”, citizen
involvement must be deepened in developing protective permits and reporting
violations and pollution events. With few, but increasing exceptions, concerned
citizen reports have not been treated as credible by agencies, and follow up is
limited. Regional staff time is very
limited to spend time explaining to citizens the relationship between permit
provisions and the concerns that they are conveying, so complainants tend to
get discouraged and communications can become quite polarized. Though
documentation is now required for all agency public contacts, even Clean Water
for NC staff and other organizations experienced in dealing with the agency
receive little or no follow up from some regional office personnel and need to
make repeated contacts to get a response.
Recommendations:
Increase staffing for all DENR offices to allow
more time for responding to citizen input, needs for capacity building and
access, and complaints.
Expand community “right-to-know.” Communities in Asheville, Oxford and
elsewhere North Carolina are demanding public posting of discharge locations,
swift and effective notification of any untreated sewage spills, and public
labeling of all toxic discharging facilities to protect public health by
reaching everyone potentially effected. Community awareness is a powerful tool
for holding polluters accountable, and should be expanded quickly to provide
widespread citizen support to the agency mission of DENR.
Clean Water for NC encourages community groups
and concerned citizens to “Adopt-A-Permit” in order to build participation in
protective permitting and continuous citizen monitoring. Training and certification of citizen
monitors by regulatory programs, as done in Delaware and several other states,
could achieve high quality documentation to be used by the agency without
compromising principles of fairness to permit holders.
Conclusion
Any degradation of our state’s waters without forceful
accountability, is a theft from all of us. When unenforceable permits are
granted at a rapid pace, with little hope of sufficient oversight to ensure
effective enforcement to deter polluters, it’s a set up for “off the books”
environmental accounting. Clean Water for North Carolina
calls on our General Assembly, conscientious DENR staff and involved citizens
to change the balance, so that we can finally keep the promise of “fishable, swimmable”
North Carolina waters.
