The Clean Water Act established a national framework for setting clean water standards and regulations in practice that would protect our rivers and streams and their use for drinking, fishing, swimming and boating. To do this effectively, the National Pollutant Discharge Elimination System (NPDES) permitting scheme was created. Although the NPDES system has not met the law’s goal of eliminating pollution by 1985, it has reduced pollution from many sources.
The NPDES permit program requires all facilities that discharge pollution into state waters submit a Discharge Monitoring Report. These reports indicate if the facilities are below or have exceeded their pollution limits. If the pollution limits are exceeded, it is a violation of state and federal clean water laws. When a violation occurs, the state enforcement agency is required to act and resolve the pollution issues. Unfortunately, states, including Maryland, Virginia and West Virginia, have limited resources and cannot adequately monitor each and every facility’s discharge monitoring reports in a timely manner. Recognizing the deficiency of the states to enforce clean water laws, Potomac Riverkeeper Network has developed a strategy to monitor compliance with those laws, something that we call a compliance sweep.
So what is a compliance sweep and how does it work? A compliance sweep is a proactive approach to assessing violations of pollution control laws before a major incident occurs, such as a fish kill or recreational users getting sick, and communicating with priority facilities to establish a path of resolution. A compliance sweep reviews all NPDES permits and their associated discharge monitoring reports in a watershed. The review process looks at several factors within a permit and ranks each facility based on the number of pollutants that are above the limits, the magnitude of each pollutant violation and how long those violations have occurred. To complete the ranking of priority facilities, the impact on the receiving water body is assessed based on current pollution loads, use and water volume.
The Potomac is a big watershed, measuring around 14,670 square miles, and has thousands of NPDES permits. With such a massive watershed, it was decided to divide the Potomac up into 4 regions; the Upper Potomac, the Middle Potomac (DC area), the Shenandoah and the Lower Potomac. In cooperation with the Mid-Atlantic Environmental Law Center and its partner, the Widener University Environmental and Natural Resources Law Clinic, a compliance sweep was conducted on the Upper Potomac in the fall of 2014.
In the Fall of 2014, Upper Potomac Riverkeeper’s compliance sweep found that 38 out of 291 facilities had severe violations of pollution control laws. The violations included discharges of sewage bacteria, heavy metals such as arsenic and lead, as well as chlorine, ammonia and other toxic substances in amounts that violate federal law. The 38 facilities with severe violations became our initial priority list for the Upper Potomac. After an in depth le review, the priority list was further narrowed down to 11 facilities that required immediate action, while the remaining 27 will be addressed in the fall.
As Riverkeepers, we realize that there are circumstances that require an immediate adversarial approach. For compliance sweeps, however, we’ve discovered that this may not be the best tactic. For our approach, we have established a tiered communication policy. The first step is to communicate our pollution concerns with the facility. If there is no cooperation or development of a remedy, then we notify the State of our concerns. If the State does nothing to remedy the problem, then we escalate to legal action.
Since Fall, we have sent correspondence to seven facilities in our priority list. Each letter described the purpose of the compliance sweep, lists the violations and requests an open dialogue between facility and PRKN to explore how the violations could be addressed. In one case, after the facility’s management learned about the violations, they worked with us to remedy the problem by offering to send a consultant from a waste water engineering firm to assess the complications. We also offered to help support their remediation actions through independent fundraisers as well as by reallocating existing grant funds to the projects.
The compliance sweep is a critical part of our assessment and enforcement programs for Potomac Riverkeeper Network. It helps us be more proactive in finding pollution sources and allows for cooperative opportunities among all parties to better protect our Potomac River. We will update our members on our progress with this project.