EPA Announces Plan for More Frequent Inspections at Small Industrial and Municipal Water Dischargers, CAFOs, Construction SitesBy Meline MacCurdy
Facilities subject to National Pollutant Discharge Elimination System (“NPDES”) permitting under the Clean Water Act (“CWA”) can expect to see more frequent inspections as a result of new guidance issued by the Environmental Protection Agency (“EPA”). The new guidance is directed to smaller “wet weather” sources, including combined sewer systems, sanitary sewer systems, stormwater, construction sites greater than one acre, and concentrated animal feeding operations. The guidance was issued by EPA’s Office of Enforcement and Compliance Assurance (“OECA”) and is titled the “Clean Water Act National Pollutant Discharge Elimination System Compliance Monitoring Strategy for the Core Program and Wet Weather Sources” (“CMS”). It was issued in a memorandum to Regional Offices last month.
II. State Authority to Enforce the CWA NPDES Program
NPDES permits are required for all point sources that discharge pollutants into waters of the United States. The CWA not only authorizes EPA to issue discharge permits, but also to enforce NPDES permits by, among other things, entering and inspecting facilities that are or should be covered by NPDES permits. EPA may delegate its authority to operate and enforce the NPDES program to states that develop comparable permitting programs, including enforcement provisions, under state law. To obtain and maintain the delegated authority to operate the NPDES permitting program, states must develop and update programs that are sufficient to insure that facilities obtain permits, meet permit requirements, and accurately report discharge data. Because the adequacy of state programs depends on EPA’s approval of them, changes in EPA’s policy about what is an adequate inspection regime necessarily influences how states enforce NPDES permit programs.
III. Overview of the Compliance Monitoring Strategy
Previous inspection goals, some written over twenty years ago, focused enforcement efforts on major NPDES permittees and a small number of minor permittees in certain industry categories. In the memorandum accompanying the CMS, EPA explains that the new inspection frequency goals are necessary to address the “increased emphasis on … water quality degradation, particularly stemming from wet weather discharges,” at a time of limited governmental resources. The CMS guidance aims to direct available enforcement resources “toward the most important noncompliance and environmental programs” by reducing the emphasis on major wastewater treatment facilities, major industrial dischargers, and sanitary sewer systems in return for increased attention to minor POTWs, construction sites, CAFOs, and other wet weather sources. The CMS complements this shifting focus across categories by targeting the facilities within each category that have histories of noncompliance or that are located near waters listed as impaired or at a higher designation to prevent degradation.
A. Reduced Inspection Frequency Guidelines for Major Core NPDES Permittees but More Inspections at Minor NPDES Permittees
The CMS reduces the inspection frequency goals at major POTWs and major industrial facilities. Major POTWs are wastewater treatment plants that have designed discharge flows of greater than one million gallons per day, while industrial facilities are “major” if they score above eighty on EPA’s six-factor “NPDES Permit Rating Work Sheet.” According to recent estimates, there are approximately 6,524 active major NPDES permits, including 4,200 major POTW permits, 2,230 major industrial permits, and 94 Federal permits. The CMS halves the inspection frequency at these facilities, dropping from the current goal of once annually to once every other fiscal year. Inspections at these facilities are likely to drop further after EPA implements a planned targeting model that will help states and regions to differentiate between facilities with strong compliance records, facilities with histories of noncompliance, and facilities that present specific environmental hazards. States may reduce inspections to once every three fiscal years for facilities that are in compliance based on this targeting model. Of course, states are free to continue to implement their current, more frequent inspection goals for these facilities, consistent with their right to impose more stringent standards than the federal government for all NPDES facilities. The effect of the new guidance is that the federal government now authorizes states to reduce the inspection frequencies at these facilities.
In contrast to major permittees, the CMS establishes inspection goals for minor permittees for the first time. Minor permittees, otherwise known as “traditional” minor permittees, include POTWs and industrial facilities that do not rise to the level of “major” described above. OECA estimates that nearly half of minor permittees have not received a comprehensive inspection in five years. The new inspection frequency goals call for one inspection of all minor permittees every five years. According to the CMS, states that cannot feasibly meet this goal can narrow the universe of minor facilities to inspect and should at least inspect, every five years, facilities that have histories of noncompliance or that contribute to water quality violations.
B. Inspection Goals for Concentrated Animal Feeding Operations and Wet Weather Sources
One of the most significant aspects of the new guidance from OECA is that it establishes new national goals at permitted and unpermitted concentrated animal feeding operations (“CAFOs”) for the first time. The guidelines for CAFOs include measures to insure compliance with existing NPDES permits and to determine whether facilities are discharging without a permit. The CMS recommends one inspection every five years at medium and large CAFOs operating under NPDES permits, with more frequent inspections at facilities that are exceptionally large, have a history of noncompliance, are located in areas of significant environmental concern or with water quality impairment, or are subject to additional state requirements. Further, the CMS recommends inspections of all large and medium CAFOs to determine whether they discharge pollutants without permits.
EPA also imposes in the CMS increased inspections to insure that industrial facilities discharging stormwater and construction sites subject to stormwater permitting have and comply with stormwater pollution prevention plans (“SWPPPs”) and do indeed have NPDES permits for stormwater discharges. The CMS recommends during each fiscal year inspections at 10% of the approximately 100,000 industrial facilities that discharge stormwater, with a focus on facilities that discharge to impaired waters or, conversely, into high quality waters. The CMS establishes inspection goals for at least 10% of the approximately 157,500 (Phase I program) construction sites that are over 5 acres, and 5% of the approximately 87,875 (Phase II program) construction sites that are between 1 and 5 five acres. Additionally, EPA is recommending inspections at all construction sites greater than one acre that are suspected of operating without a permit. If these goals for construction and industrial stormwater discharge sites are not feasible, the CMS suggests that states focus on sites located near impaired waters or high quality waters that the state has designated for higher levels of protection.
The CMS also establishes guidelines for combined sewer systems (“CSS”), while leaving states to determine appropriate guidelines for sanitary sewer systems (“SSS”). A CSS is designed to transport both sewage and rainwater runoff and industrial wastewater in a sewage treatment plant, but are subject to so called-combined sewer overflows (“CSO”) in the event of significant storm events; that is, during periods of heavy rainfall or snow melt, during a CSO event the POTW diverts untreated flows into the receiving water, since the amount of flow is greater than the capacity of the POTW to treat. An SSS is designed to transport all of the sewage that they receive from POTWs, but occasionally discharge raw sewage—a so-called sanitary sewer overflow (“SSO”)—due to vandalism, severe weather, or improper operation and maintenance. EPA is calling for CSO inspections of every major CSS every 3 years and at least once every 5 years for every minor CSS. In contrast, EPA is not setting a scheduled SSO inspection frequency goal for SSSs, and instead leaves it to states to determine necessary inspection schedules based on reported overflows.
C. New Auditing and Inspection Requirements for Municipal Separate Storm Sewer Systems
EPA established a mixture of auditing and inspection goals for municipal separate storm sewer systems (“MS4s”). For the approximately 1,000 permittees operating MS4s under the Phase I program, which includes medium and large systems in incorporated cities or counties with populations of 100,000 or more, the CMS establishes a goal for initial audits within 5 years, with additional audits as necessary based on the severity of reported violations. The guidelines call for a combination of audits and inspections within seven years for the nearly 5,000 Phase II MS4s in the country, to give “flexibility to regions and states to determine the most appropriate approach to assess compliance within the Phase II universe.” Due to the large number of MS4s operating under the Phase II program, the CMS encourages states to focus their audits and inspections on the Phase II MS4s in priority watersheds that discharge to impaired waters or are near waters that states have designated for higher levels of protection.
II. Reaction Among the States
The CMS guidelines come into effect during the fiscal year 2009, which begins October 1, 2008, but states may begin implementing the guidelines during fiscal year 2009. OECA is giving states some flexibility to meet the new inspection goals, according to the guidance memorandum, and encourages “a dialogue between regions and individual states about annual program commitments and potential resource trade-offs.” However, EPA is requiring states that choose to deviate from the inspection plans in select program areas to document both their reasons for the doing so and the projected trade-offs of the state’s decision.
Understandably, many states and state trade groups have objected to the increased workload requirements imposed by the new guidance. They note that the CMS does not provide new funding to implement the new inspection regime. Some have expressed doubts that the reduced inspection guidelines at major facilities would free up adequate resources to cover the increased expectations for the wet weather sources. Moreover, states have expressed a concern that a reduction in inspections at major facilities could “reverse the progress in improving water quality that [they] have worked so hard to achieve.”
The new inspection frequency goals established in the CMS are likely to significantly increase the resource burden on most states that enforce NPDES permits under the CWA. By establishing inspection frequency goals for many wet weather sources and minor NPDES program facilities, the CMS requires states to direct their enforcement resources to a large number of facilities that have heretofore operated outside federal inspection requirements. Likewise, the permit holders in these categories—particularly those who discharge into waters that are either impaired or highly protected—will face the likelihood of more intensive and frequent scrutiny of their facilities, which could lead to an increase in enforcement actions. Operators of CAFOs and construction sites are especially impacted by the CMS, in that they may face inspections even when they do not hold NPDES permits. Conversely, permit holders at major NPDES facilities may for the first time in nearly twenty years see less frequent inspections if states implement the relaxed inspection frequency goals that the CMS authorizes for these facilities. Operators at all facilities that the CMS addresses should closely watch how states and regional offices implement the CMS into their enforcement strategies in the next year before the new goals take effect.
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