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Earth Night

Environmental Issues--Enforcement

Chairman Ose and Members of the Committee:

My name is Pamela DiBona, I am Vice President for Policy at the Environmental League of Massachusetts, an independent, state-wide, nonprofit advocacy organization dedicated to promoting sound environmental policies - and implementation of those policies - for Massachusetts. Thank you for the opportunity to testify on this important issue.

Massachusetts has a history of spotty enforcement

The Environmental League has been assessing enforcement of environmental laws, primarily by our Department of Environmental Protection (DEP), for at least 15 years. In 1996, we released a report (based in part on an EPA assessment) detailing the lack of aggressive enforcement and failure to fully penalize violators of all of the laws, including the state's own Clean Water Act and the federal Clean Water Act (Enforcement Trends at the Massachusetts Department of Environmental Protection, 1989-1996, 10 copies submitted to the Committee). More recently, we have prepared an assessment of enforcement activities by DEP between 1996 and 2000 (Enforcement Trends at the Massachusetts Department of Environmental Protection 1997-2000, Executive Summary attached). Our findings are not encouraging:

• DEP has reduced their presence in the field, and on-site inspections are not keeping up with the increase in facilities. We're not even finding the violators, let alone taking aggressive action.
• Strategic planning is lacking. For example, DEP is unable to determine rates of compliance with laws it administers, making strategic planning very difficult.
• Average penalty amounts fell between 1996 and 2000, often allowing violators to gain economic benefits by not complying with the law.

We are currently updating our report to include data from 2001 and 2002, and we expect to see some modest gains in strategic compliance monitoring, in part due to the Environmental League's advocacy for more diligence.

Clean Water Act enforcement threatened by budget cuts

More specifically with regard to the federal Clean Water Act, we have found that facilities holding NPDES permits, for the most part, undergo adequate inspections in Massachusetts - two-thirds of the major and minor facilities were inspected in Fiscal Year 2002. While inspections have been kept up, we are concerned that enforcement, especially against municipal violators, is lacking. Here in Ipswich, the town wastewater treatment plant was in non-compliance for many years, and its sewer collection system regularly spewed raw sewage directly into the Ipswich River; yet actions to address these problems have only been implemented (slowly and not completely successfully) in the last few years. When the force main was finally replaced, incidents decreased from four to six incidents per year - but still occasionally occur. A similar violation was ongoing - and ignored - on the Charles River in the town of Milford.

Even this limited enforcement action is in jeopardy in light of state budget cuts. In the past two fiscal years, DEP has lost 25 percent of its workforce, or 289 FTEs. We expect to see enforcement suffer along with other programs as funding continues to be cut - in FY05, the agency is anticipating another budget cut, with a loss of 125 to 150 FTEs.

We do know that the one thing ensuring adequate enforcement of the Clean Water Act in Massachusetts is the federal mandate to do so. In light of these drastic budget cuts, agency decision-makers have stated that programs that are not federally mandated will be cut from the agency's implementation list. We can only imagine what being "taken off the priority list" really means. Over the past 5 years, with "normal" budgets, permit inspection rates overall have ranged from 5 to 8 percent inspected each year, with only half of those inspections conducted without prior notice. That means a permitted facility can expect an inspection only once every 17 years! If the federal impetus for protection of clean water is taken away, I am sure we will see similar inspection rates of CWA permits.

Massachusetts is not alone.

I would also like to report on enforcement of the Clean Water Act in other states. The Environmental League has worked closely with our counterpart organizations in North Carolina, Alabama, Michigan, Washington, and Oregon for the past three years to conduct comparisons and generate public policy for improved enforcement of existing environmental laws. Here is some of what they have found in their states with regard to CWA enforcement, including some real horror stories:

• Oregon leads the nation in expired wastewater discharge permits - 68 percent of permits have expired. According to its own Web site, Oregon's Department of Environmental Quality has a backlog of 324 wastewater discharge permits waiting to be issued dating back to February of 1989. With recent budget reductions, DEQ will have 25 percent less staff than it needs to reduce the permit backlog, inspect facilities and hold violators accountable.
• In North Carolina, parents discovered that the creek in their backyard where their children played was contaminated with sewage sludge from an upstream treatment plant. The state had not taken enforcement action despite knowing about the problem for 9 years. North Carolina also has a massive backlog of expired permits. And while the discharge permits that are in place are reasonably inspected, stormwater permits have been all but ignored in the state.
• In Alabama, a chicken processing facility was allowed to illegally dump blood, oil and chicken parts into an up-stream tributary of a river on which a popular Girl Scout camp is located. The state allowed this practice to continue even though their own records showed the facility to have 324 water pollution violations.
• Since 1995, the Wisconsin Department of Natural Resources (DNR) has consistently failed to meet its goal to inspect each major industrial facility with a Wisconsin PDES permit once per year. The DNR's inspection record went from apparently perfect in the years 1990 through 1994 to failing to inspect up to 53% of all major industrial facilities in 1999. By comparison, the DNR diligently inspected major municipal facilities until 1998 when it failed to inspect 19% of all major municipal facilities. (Executive Summary attached
• A Washington state lawyer reports that the Washington Department of Ecology (DoE) virtually refuses to take enforcement actions against industrial stormwater dischargers that should be covered by NPDES permit, but are not. One of the primary stormwater inspectors in DoE reports that their superiors at the agency repeatedly refuse to take any action to force illegally unpermitted industrial stormwater dischargers to come under permit. Separately, an NPDES permit manager there expressed frustration that their superiors repeatedly refused to take any enforcement action against municipal sewage treatment plant permittees that had failed to perform studies or submit reports required by their permits.
• The Michigan Department of Environmental Quality is the only environmental agency in the Great Lakes region that for years refused to require pollution permits for concentrated animal feeding operations(CAFOs) that regularly dump large amounts of animal manure into Michigan rivers. The Michigan chapter of the Sierra Club has gone to court to enforce the federal Clean Water Act because the state won't.

All of these states face similar budget shortfalls to those in Massachusetts - and the problems will only become worse.

Conclusion

We in the states depend on a strong federal presence to keep our waters clean. Even the most progressive states are not upholding their mandate to protect the public trust and common resources. We urge the Committee to make every effort to keep - and strengthen - the federal Clean Water Act.

Submitted by:

Pamela DiBona
Vice President for Policy
Environmental League of Massachusetts
14 Beacon Street, Suite 714
Boston MA 02108