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Troubled Waters Troubled Waters Industrial Pollution Still Threatens American Waterways Troubled Waters Industrial Pollution Still Threatens American Waterways Elizabeth Berg and Hye-Jin Kim, Frontier Group John Rumpler, Environment America Research and Policy Center Spring 2018 Acknowledgments Environment Massachusetts Research & Policy Center thanks Kenneth Kopocis, former Deputy Assistant Administrator in the Office of Water, U.S. Environmental Protection Agency; Josh Galperin, Director of the Yale Law School Environment Protection Clinic; Susan Kraham, Senior Staff Attorney at the Columbia Law School Environmental Law Clinic; and Josh Kratka, Senior Attorney at the National Environmental Law Center for their review of drafts of this document, as well as their insights and suggestions. Thanks also to Tony Dutzik and Elizabeth Ridlington of Frontier Group for editorial support. Additional thanks to the numerous staff at state environmental protection agencies across the country for reviewing the data for accuracy. Environment Massachusetts Research & Policy Center thanks the Park Foundation and the Water Foun- dation for helping to make this report possible. The authors bear responsibility for any factual errors. The recommendations are those of Environment Massachusetts Research & Policy Center. The views expressed in this report are those of the authors and do not necessarily reflect the views of our funders or those who provided review. 2018 Environment Massachusetts Research & Policy Center. Some Rights Reserved. This work is licensed under a Creative Commons Attribution Non-Commercial No Derivatives 3.0 Unported License. To view the terms of this license, visit creativecommons.org/licenses/by-nc-nd/3.0. The Environment Massachusetts Research & Policy Center is a 501(c)(3) organiza- tion. We are dedicated to protecting Massachusetts’ air, water and open spaces. We investigate problems, craft solutions, educate the public and decision-makers, and help Bay Staters make their voices heard in local, state and national debates over the quality of our envi- ronment and our lives. For more information about Environment Massachusetts Research & Policy Center or for additional copies of this report, please visit www.environmentmassachusettscenter.org. Frontier Group provides information and ideas to help citizens build a cleaner, healthier and more demo- cratic America. Our experts and writers deliver timely research and analysis that is accessible to the public, applying insights gleaned from a variety of disciplines to arrive at new ideas for solving pressing prob- lems. For more information about Frontier Group, please visit www.frontiergroup.org. Layout: To The Point Collaborative, tothepointcollaborative.com Cover photo: NOAA via Flickr, CC BY-SA 2.0 Table of Contents Executive Summary . 4 Introduction ...........................................................7 The Clean Water Act Limits Pollution of Our Waterways . 9 Direct Pollution of Waterways Is Illegal Without a Permit . .9 Both State and Federal Authorities Must Enforce the Clean Water Act.........10 Clean Water Permits Are Intended to Restore Waterways to Health . 11 Compliance with the Clean Water Act Is Reported in Publicly Available Databases ..........................................12 Publicly Accessible Reporting Is an Essential Tool for Enforcement . .13 Not All States Fully or Accurately Report Enforcement Data to the EPA . 13 Industrial Facilities Exceeded Pollution Limits 8,100 Times from January 2016 through September 2017 . 15 Discharge Exceedances by State . .15 Exceedances per Major Industrial Facility . 15 Exceedances in Impaired Waters . 17 Percentage of Major Industrial Facilities with Exceedances . .17 Major Industrial Facilities with Repeated Exceedances . .18 Severity of Exceedances . 19 Clean Water Act Enforcement Is Often Weak...............................20 America’s Poor Track Record of Clean Water Compliance and Enforcement . 21 Clean Water Enforcement Is Declining under the Trump Administration . 21 The Trump Administration Is Proposing to Further Erode Clean Water Protections . 24 Trump Administration Undermines the Clean Water Act Itself . 25 Policy Recommendations................................................27 Methodology ..........................................................28 Compliance Analysis . .28 Enforcement and Inspection Analysis . .29 Appendix . 30 Notes .................................................................64 Executive Summary merica’s waterways provide us with drink- Over a 21-month period from January 2016 to ing water, places to fish and swim, and September 2017, major industrial facilities re- critical habitat for wildlife – when they are leased pollution that exceeded the levels allowed Aclean and protected. under their Clean Water Act permits more than 8,100 times. Often, these polluters faced no fines The passage of the Clean Water Act in 1972 was a or penalties. turning point in America’s efforts to protect and re- store its rivers, lakes and coastal waters. Though the To protect and restore our waters, state and federal Clean Water Act has made some progress bringing officials must tighten enforcement of the Clean our waters back to health, a closer look at compli- Water Act. ance with and enforcement of the law reveals an National data on Clean Water Act compliance overly lenient system that too often allows pollution shows that during the 21-month span from Janu- without accountability. ary 2016 through September 2017:1 Table ES-1. The 10 States with the Most • The nation’s major industrial facilities discharged Exceedances Reported by Major Industrial Facilities pollution in excess of their permits at least 8,148 times. Rank State Total Exceedances • During roughly one-third of exceedances – more 1 Texas 938 than 2,600 times in total – pollutants were being 2 Pennsylvania 633 added to waters that were already too polluted for 3 Arkansas 567 uses such as recreation, fishing or drinking water, 4 Louisiana 535 hindering efforts to restore them. 5 Ohio 491 6 New York 473 • Approximately 40 percent of all major industrial facilities – more than 1,100 in total – reported 7 West Virginia 407 exceeding their pollution limits at least once. 8 California 360 9 Missouri 348 • Three-quarters of facilities that exceeded their 10 Florida 270 discharge permit limits did so more than once. 4 Troubled Waters Not only did many major industrial facilities exceed • Many violations go unpunished. Each year from their permit limits – sometimes frequently – but some 2011 to 2017, an average of 27,849 facilities were of those exceedances were particularly severe, non-compliant across the U.S., while an average with facilities releasing multiple times the amount of 13,076 – less than half – faced any EPA or state of pollution permitted under their Clean Water Act enforcement action.2 permits. • Even when fines are issued, they are often too State and federal agencies are failing to take strong low to deter polluters. In 2017, the median fine enforcement action to stop these rampant excess issued by the EPA was lower than it had been in 3 discharges of pollution into America’s waters. any year since 2011. • Numerous studies by the EPA Inspector General The Trump administration’s proposed cuts to the and others highlight a history of lackluster Environmental Protection Agency’s budget and re- enforcement of the Clean Water Act by state duced emphasis on enforcement threaten to open environmental agencies. the door for more illegal pollution of our water- ways. For fiscal year 2019, the current administration • The number of inspections of major industrial plans to cut the EPA’s budget for civil enforcement facilities was on pace to be lower in 2017 than of environmental protection programs, including in any of the previous five years, according to the Clean Water Act, by $30.4 million.4 Funding for Integrated Compliance Information System (ICIS) state grants to improve the permitting process and records (Figure ES-1). enforcement of the Clean Water Act is slated for Figure ES-1. Federal and State Inspections of Industrial Facilities by Year 2,500 2,000 2,127 1,849 1,907 1,722 1,500 1,660 1,431 1,000 Number of Number of inspections 500 0 2012 2013 2014 2015 2016 2017 (projected) Executive Summary 5 cuts as well; this program’s proposed budget is lower • Issue timely penalties that are sufficiently high to than the amount allotted in total grants for at least the deter companies from polluting our waters. previous seven years.5 • Boost compliance and enforcement by increasing To protect the rivers, streams and lakes that are criti- the number of on-site inspections at major facili- cal for the health of our wildlife and our communities, ties. states and the federal government need to take • Guard against any weakening of citizens’ ability to strong action to enforce our core environmental enforce pollution limits in court when state and laws. To strengthen compliance with clean water regu- federal authorities fail to halt illegal dumping. lations, policymakers should: In addition: • Ensure that the Clean Water Act applies to all our waterways, so that there is nowhere polluters can • States that repeatedly fail to enforce the Clean dump with impunity. Water Act should face consequences for their inaction – including loss of federal funding and/or • Strengthen permits with enforceable, numeric limits primary enforcement authority. on pollution that are ratcheted down over time as technology allows or water quality demands. • Companies
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