Why U.S. targeted industries should focus on Clean Water Act compliance.

by Henry Chajet and Scott Stewart

Strengthening clean water enforcement is a high priority of the Obama Administration. On Oct. 15, 2009, the Environmental Protection Agency (EPA) Office of Enforcement and Compliance Assurance published a roadmap for overhauling and intensifying Clean Water Act (CWA) enforcement. This action plan focuses on both EPA and state enforcement efforts and will lead to a significant rise in CWA enforcement. This suggests an urgent need for companies to review their CWA permit status, revisit their compliance programs, and take new steps to ensure that their operations are not flagged for enforcement.

CWA enforcement action plan highlights

Targeted enforcement. EPA plans to move away from its current policy of focusing enforcement on the largest facilities and those with significant non-compliance. Enforcement focus will shift to significant point source violations that adversely affect water quality. Facilities sited on impaired water bodies are in the enforcement crosshairs.

Strengthened oversight. While 46 states are authorized by EPA to run the National Pollutant Discharge Elimination System (NPDES) program, EPA retains responsibility to ensure states protect water quality and consistently apply the law through vigorous enforcement. EPA will develop and publicize performance metrics to hold states accountable. If states underperform, EPA will disapprove permits. For example, EPA’s recent use of its CWA §404(c) power to deny, restrict, or prohibit actions under a CWA Section 404 permit previously issued by the U.S. Army Corps of Engineers (Corps) to a coal mining operation is evidence of EPA’s new focus on impacts to impaired waters. In addition, EPA informed the Corps that it is targeting 79 pending, surface coal mining permit applications because they raise “potentially significant water quality and environmental issues.” Facilities in states with traditionally lax enforcement will either see stepped-up enforcement by the state or increased federal enforcement.

Improved accountability and transparency. EPA believes it lacks nationally consistent and complete information on facilities, permits, pollutant discharges, and compliance status of most NPDES-regulated facilities. To address this problem, EPA will implement electronic reporting across all regulated facilities. Initially, it will encourage voluntary submittal of electronic Discharge Monitoring Reports (DMRs), but will work to develop a rule requiring the practice.

CWA enforcement: the past as prelude

In 2008, Massey Energy Co. Inc. paid a $20 million civil penalty in addition to costly injunctive relief to settle the United States’ claim of wastewater discharge permit violations. In 2009, Patriot Coal Corp. paid a $6.5 million civil penalty in addition to substantial injunctive relief to settle a wastewater discharge permit violation case.

In the same vein, in 2009, Alaska Gold Co. and NovaGold Resources Inc. paid a civil penalty of $883,628 to settle alleged violations of a storm water discharge permit. In August 2009, Aggregate Industries – Northeast Region Inc. settled with the United States, agreeing to pay a $2.75 million civil penalty and implement a regional evaluation and compliance program, resolving numerous alleged CWA storm water violations at 23 of its facilities. To date, this is the largest civil penalty ever assessed to a nationwide ready-mixed concrete company for alleged CWA storm water violations.