The U.S. Environmental Protection Agency (EPA) developed its recent Clean Water Act (CWA) Enforcement Action Plan (the Plan) to renew and embolden state and federal enforcement actions to protect water quality across the nation. Under the Plan, released last fall, the EPA targets enforcement at the most significant water pollution problems and will work to improve transparency and accountability by providing the public with access to better data on water quality in their communities. It will also strengthen enforcement performance and measures at the state and federal levels. Now, significant enforcement actions are being taken across the country by the EPA and states charged with implementing the requirements of the CWA in their jurisdictions. In some states, such as Oregon, the attorney general has demonstrated strong commitments to enforcing CWA violations both by creating Oregon's first environmental crimes unit with a lawyer dedicated to enforcing environmental criminal laws, and by speaking out on water quality issues. In this update, we provide an overview of the EPA's Plan and recommendations for those regulated under the CWA on how to prepare for and properly respond to federal and state enforcement actions.

NPDES Permit Enforcement Challenges

Under the CWA, point sources are regulated by the National Pollutant Discharge Elimination System (NPDES) permit program, including concentrated animal feeding operations (CAFOs), industrial sites (including construction sites) and municipal separate storm sewer systems (MS4s). This program controls discharges by establishing permits with discharge limits that protect water quality standards, and by enforcing against those permits.

The EPA has authorized most states to implement the NPDES program in their jurisdictions, but retains independent enforcement authority and responsibility to ensure that states write and enforce permits that are consistent with the rest of the nation. This oversight is complex because the NPDES program has expanded from roughly 100,000 point sources to nearly a million sources. This rapid expansion has heavily burdened the resources of federal and state regulators and, according to the EPA, some states rarely take enforcement action against facilities that are in significant noncompliance. Thus, the EPA now commits to take prompt actions where a state fails to issue protective permits and take effective enforcement actions.

EPA's New Plan

The EPA's Plan contains three clear directives to step up enforcement. First, the EPA is targeting enforcement for the most important water pollution problems. It estimates that there are 19,000 CAFOs, 89,000 industrial storm water sources and more than 200,000 construction storm water sites. The EPA will leverage technology and data housed in different systems to better target compliance and enforcement needs and will incorporate data on water quality standards, water quality status, permit limits and effluent violations to evaluate where violations contribute to water quality problems. The EPA can then identify facilities that require additional compliance monitoring or enforcement attention and shift attention away from those with good compliance performance. Timely, accessible and understandable information concerning violations and violators will be made public.

Second, the EPA is strengthening its oversight of CWA enforcement performance in the states. Forty-six states are authorized to run the NPDES program, but the EPA retains the responsibility to ensure that the states consistently apply and enforce the law. Where states are not meeting their obligations, the EPA will act to strengthen those programs. To set clear permitting and enforcement expectations for the states, the EPA will develop and use performance metrics, which will also be made public, and will disapprove state-issued permits that are not protective of water quality. Third, the EPA is improving accountability and transparency to protect water quality. To make real-time data available to regulators and the public, the EPA launched a new electronic reporting tool called NetDMR (http://www.epa.gov/netdmr) that enables facilities to submit their discharge monitoring reports (DMRs) electronically to the national data system or to a state system. The EPA will also develop a rule to require NPDES permittees to provide DMRs electronically to increase accountability for a permitee's results, and to engage the public in promoting better compliance.

Recommendations To Prepare For And Properly Respond To Enforcement Actions

In light of the EPA's renewed emphasis and direction toward CWA enforcement, NPDES permittees can take several precautionary measures to avoid enforcement actions and to appropriately respond to any actions that are taken.

  • Perform An Internal Permit Review. It sounds simple, but NPDES permits are typically several pages long and can contain confusing, vague and seemingly conflicting requirements. Employees are often working with permits issued years ago, written by regulators no longer at an agency and reviewed by employees no longer at the facility. Over the course of time, employees develop greater institutional knowledge of their facility operations and, through permit review, can apply this knowledge to identify the need for small permit amendments (e.g., contact information) or more significant amendments (e.g., the location of monitoring locations and outfalls). Through permit review, employees may also identify the need to clarify with an agency if their reporting and monitoring practices meet requirements. It is best to perform this review before being faced with an enforcement action.
  • Review And Update Facility Management Plans. NPDES permits often require facilities to periodically review and update management plans developed to protect stormwater, handle spills of oil and hazardous materials or properly apply wastewater at land application sites. As with the permit review, employees may identify text in a plan that differs from practices. It is best to make necessary changes to the plan, or implement procedures to follow the plan, before an enforcement action.
  • Consider Performing A Voluntary Environmental Audit. Environmental audits can result in greater legal certainty of compliance requirements and rectification of compliance issues before enforcement actions are initiated. Companies that perform environmental audits can also benefit from positive incentives under the EPA's Audit Policy, more formally known as the EPA's "Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations; Notice." Under this policy and many similar state policies, regulated entities are encouraged to voluntarily discover, promptly disclose and expeditiously correct violations of environmental requirements. In exchange, the EPA and many states make available incentives for those who meet the terms of the policy, including elimination or substantial reduction of the gravity component of civil penalties and a determination not to recommend criminal prosecution of the disclosing entity.
  • Anticipate And Respond Appropriately To Citizen Enforcement Actions. The CWA allows individuals or organizations to file lawsuits to enforce its statutory requirements. However, at least 60 days before filing a citizen suit, the plaintiff must notify the defendant and state and federal regulators that it intends to file suit. This procedure affords defendants advance notice so that they have an opportunity to come into compliance. Permittees that receive a 60-day notice of suit should first investigate the facts to determine whether the allegations in the notice are true and, if so, how many violations occurred in the past and whether they are likely to continue in the future. Second, permittees should evaluate their legal positions because there are a variety of defenses to citizen suits that may allow permittees to avoid or minimize their liability. Third, permittees should not delay as immediate action to correct violations is often necessary to take advantage of defenses or minimize liability for penalties. If avoiding liability completely is not possible, negotiating a reasonable resolution with the prospective plaintiff sooner rather than later may minimize liability and reduce exposure to mounting legal fees.

This update provides only a general summary of the EPA's CWA Enforcement Plan, which was written to address concerns about high noncompliance, low enforcement rates and the absence of data across regulated NPDES sources and states. You can read the full text of the Plan at the EPA's Web site. (http://tinyurl.com/y9wvdb8)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.