Bad Actor vs. Unintentional Failures

If you’ve just joined Potomac Riverkeeper Network (PRKN) you may gather that we don’t stop trying to solve a pollution problem when we hit the inevitable advocacy road block. Instead, our custom is to take legal action when advocacy can’t get us any further towards a solution. However, this is not always necessary. In many cases, the path to protecting our watershed depends on the attitude of the polluter. How do we decide? We often determine the best way forward with an evaluation we call the “Bad Actor vs. Unintentional Failure” test.

In this test, the first step is to determine the severity of the pollution problem at hand by evaluating;  the toxicity of the pollution to the river, the relative magnitude of the contamination, the history of the pollution and the number of pollutant types contributing to the problem. We also assess the impact the pollution has on the receiving waters, harm to aquatic organisms and threats to human health and public use of the river. These assessments drive our case priorities, enabling us to keep our focus on the most critical pollution sources.  It’s important to note that the most severe problems are usually caused by those we place under the Bad Actor category.

Next, we evaluate whether the polluter wants to cooperate. A great case study highlighting this step comes from our 2014 Upper Potomac Compliance sweep. The sweep uncovered two public service districts which represented opposite ends of the Bad Actor vs. Unintentional Failure spectrum. The Berkeley County Public Sewer Service District (BCPSSD) and the Mt Top Public Service District (Mt Top PSD). Both operated several facilities that had a history of permit violations for multiple pollutants, and PRKN had a long history of communicating with both Districts which resulted in minimal pollution reductions.

Unintentional Failures case: Mt. Top PSD

Mt Top PSD manages three waste water facilities in rural Mineral County, West Virginia serving over three hundred median – to - low income households on public sewer hookups. Mt Top PSD discharges treated waste from all three of its facilities to the North Branch of the Potomac River, and has a history of acid mine discharges resulting from a legacy of mineral mining. This acidity causes the area’s surface and groundwater to be high in dissolved metals like copper, zinc and iron. It’s not surprising, then, that these three facilities have had a history of discharge violations for copper and zinc. Our correspondence with Mt Top PSD revealed that the low income demographic of the District’s user base has crippled Mt Top's ability to pay for the treatment upgrades required to fix their discharge problems.  It was also evident that they were vigilant and interested in working to solve their problems. Recently, Mt Top PSD and Upper Potomac Riverkeeper have agreed to work collaboratively to address these problems, earning them a place on our Unintentional Failures list. We have brought pro-bono engineering assistance to the county, and have worked to produce and distribute a pamphlet educating residents on the proper care and maintenance of their sewer clean outs.  We raised the funds to produce the pamphlet at no cost to MT Top PSD.  Together these two steps will help this facility eliminate their damaging discharges.

“Bad Actor” case - BCPSSD:

In contrast, BCPSSD earned its Bad Actor badge, and a much more aggressive approach from the Upper Potomac Riverkeeper, after repeatedly neglecting to solve nearly a dozen cases of insufficient sewage treatment pollution or meet the legal requirements of two state consent orders designed to compel elimination of their pollution. “Highlights” from their laundry list of problems include:

  • Fines of $300,000 by West Virginia DEP (this is exceptionally high and indicative of frustration at the state level
  • Failing to meet legally binding deadlines for upgrades
  • Resistance to communication with Upper Potomac Riverkeeper
  • As many as 155 permit violations per facility (11 facilities)
  • Pollution levels (harmful bacteria) thousands of times the allowable safe limit
  • BCPSSD General Manager providing misinformation to the public to obscure their failure to protect local stream users

Even after repeated failures to meet court ordered consent decrees, BCPSSD had the audacity to petition a state court judge for leniency after DEP levied stiff fines, claiming the problems were outside its control. In light of this history, the Upper Potomac Riverkeeper filed a Clean Water Act lawsuit in federal court on the Marlowe Town Center in 2015, an entity of the BCPSSD, bypassing our normal advocacy path in favor of aggressive direct action.

These two cases illustrate that the best solution in a situation can depend a lot on the polluter. When confronted with a threat to our watershed, the Riverkeeper must ask whether they are dealing with an Unintentional Failure or a true Bad Actor.