Water Pollution: Many Violations Have Not Received Appropriate
Enforcement Attention (Letter Report, 03/20/96, GAO/RCED-96-23).
Pursuant to a congressional request, GAO reviewed the Environmental
Protection Agency's (EPA) progress in ensuring that facilities comply
with federal pollutant discharge requirements, focusing on: (1) the
frequency of facilities' violations; (2) the limitations of EPA systems
and the effects of these limitations; and (3) EPA plans to correct these
facilities.
GAO found that EPA: (1) compliance data for FY 1994 show that 1 in 6 of
the nation's 7,053 major regulated facilities have significantly
violated the discharge limits in their permits; (2) considers facilities
to be in significant noncompliance of their discharge levels when
discharged pollutants exceed permit limits by 20 percent or more in a
2-to-6 month period; (3) is unable to identify all of the facilities
that violate their discharge limits because the criteria it uses to
screen facilities have not remained consistent with the types of
discharge limits used in permits; (4) has expanded its criteria for
identifying cases of significant noncompliance and assigning priorities
of enforcement action in order to identify major facilities that have
violated discharge levels in the past; and (5) assessed penalties of
about $25 million in 323 cases of Clean Water Act violations in 1994,
and its studies indicate that very few penalties are assessed for
significant violations of daily maximum discharge limits.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: RCED-96-23
TITLE: Water Pollution: Many Violations Have Not Received
Appropriate Enforcement Attention
DATE: 03/20/96
SUBJECT: Fines (penalties)
Noncompliance
Environmental monitoring
Water pollution control
Wastewater treatment
Industrial wastes
Environmental policies
Licenses
Law enforcement
Federal/state relations
IDENTIFIER: EPA Permit Compliance System
EPA National Pollutant Discharge Elimination System
NPDES
New Hampshire
New Mexico
Oklahoma
Texas
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Cover
================================================================ COVER
Report to the Ranking Minority Member, Committee on Environment and
Public Works, U.S. Senate
March 1996
WATER POLLUTION - MANY VIOLATIONS
HAVE NOT RECEIVED APPROPRIATE
ENFORCEMENT ATTENTION
GAO/RCED-96-23
Clean Water Act Violations
(160321)
Abbreviations
=============================================================== ABBREV
EPA - Environmental Protection Agency
GAO - General Accounting Office
NPDES - National Pollutant Discharge Elimination System
Letter
=============================================================== LETTER
B-270622
March 20, 1996
The Honorable Max S. Baucus
Ranking Minority Member
Committee on Environment
and Public Works
United States Senate
Dear Senator Baucus:
The quality of our nation's waters has improved since the Clean Water
Act\1 was revised in 1972. This progress can be attributed, in part,
to the permit program authorized by the act, which prohibits
facilities from discharging pollutants in amounts exceeding those
authorized in the facilities' discharge permits. If the progress
made thus far against water pollution is to be sustained over the
long term, facilities must continually control the pollutants they
discharge as required by their permits.
Concerned about whether the major facilities\2 that discharge
pollutants into the nation's waters have been complying with their
discharge permits, you asked us to provide you with information on
the frequency with which such facilities have violated their
discharge permits. In response, we analyzed data from the
Environmental Protection Agency's (EPA) Permit Compliance System and
reviewed studies that EPA completed in 1992 and 1994. Our work
revealed that the system, which was operating in accordance with
EPA's existing policy, had not been classifying a substantial portion
of violations appropriately. In view of this limitation and as
requested, we agreed to obtain information on (1) the frequency of
the facilities' violations, (2) the limitation in EPA's system and
its effects, and (3) EPA's plans to take corrective action.
--------------------
\1 The Federal Water Pollution Control Act, 33 U.S.C. 1251-1387, is
generally referred to as the Clean Water Act.
\2 EPA classifies facilities (including municipal wastewater
treatment plants and industrial and federal facilities) as major or
minor, depending on the risk to the environment posed by the
pollutants being discharged from the facility; the volume of
pollutants being discharged; and, in the case of municipal wastewater
treatment facilities, the size of the population being served.
RESULTS IN BRIEF
------------------------------------------------------------ Letter :1
Our analysis of EPA's compliance data for fiscal years 1992 through
1994 shows that major facilities have frequently violated their
permits. For fiscal year 1994, for example, our analysis indicates
that about 1 in 6 of the nation's 7,053 major regulated facilities
significantly violated the discharge limits in their permits.\3
However, according to EPA officials and EPA's 1992 and 1994 studies,
the actual number of significant violations of discharge limits may
be nearly twice as high as EPA's compliance data have shown.\4
In addition, the violations that EPA has not identified may be as
serious from an environmental perspective as those that it has
identified.
EPA does not identify all significant violations of discharge limits
because its criterion for screening violations has not remained
consistent with the types of discharge limits used in permits. EPA's
screening is important because EPA's and states' enforcement
resources are concentrated on the violations that the screening
identifies as cases of significant noncompliance. EPA's criterion
for significant noncompliance was developed about 10 years ago and
does not recognize all of the types of discharge limits that have
frequently been written into permits.
In September 1995, EPA expanded its criterion for identifying cases
of significant noncompliance and, hence, for assigning priorities for
enforcement action. The new criterion, which will become effective
in September 1996, will enable EPA to identify major violators that
were overlooked in the past.\5 EPA's studies also found an inequity
in the penalties that are to be assessed for cases of significant
noncompliance under the new criterion. EPA officials said that the
penalties associated with its enforcement efforts should be
equitable. However, EPA has not yet revised its penalty policy.
--------------------
\3 EPA considers facilities to be in significant noncompliance when,
for example, they discharge pollutants in excess of the effluent
limits in their permits by 20 percent or more in at least 2 months of
a 6-month period. EPA's definition of significant noncompliance is
further described later in this report.
\4 In commenting on a draft of this report, EPA officials said that
the agency initiated its studies after detecting the possible
existence of a problem. According to these officials, the studies
were expedited to arrive quickly at a very general indication of the
scope of the problem with the criterion for significant
noncompliance.
\5 In its report on significant noncompliance covering the first
quarter of fiscal year 1997, EPA will, for the first time, include
the cases that have been overlooked.
BACKGROUND
------------------------------------------------------------ Letter :2
The Clean Water Act established the National Pollutant Discharge
Elimination System (NPDES), which directs EPA and states to issue and
enforce permits for controlling water pollution. EPA has approved 40
states to operate the NPDES program. EPA's regional offices oversee
these states' operation of the program and administer the program for
the 10 states that have not received EPA's approval to operate the
program.\6
A NPDES permit may contain, among other requirements, (1) effluent
limits that specify the concentration and quantity of the specific
pollutants that a facility may legally discharge into a body of water
and (2) monitoring requirements that specify where and how frequently
the discharger must sample its waste streams and how frequently it
must report the results to EPA or the state. To assess a facility's
compliance, EPA or the state reviews the discharger's self-monitoring
report and may also inspect the facility or sample its wastewater.
From the compliance monitoring information, EPA compiles quarterly
reports to (1) identify cases of "significant noncompliance" and (2)
track these cases and the enforcement actions that have been taken
against the responsible facilities. Cases of significant
noncompliance are the more severe and chronic violations of the
discharge limits or monitoring requirements established in a
facility's discharge permit. EPA's regions and the states are
expected to take timely and appropriate enforcement action against
these cases and track them until they have been resolved.
EPA defines significant noncompliance for violations of effluent
limits for both toxic and conventional pollutants.\7 Significant
noncompliance is defined (1) for toxic pollutants as exceeding an
average monthly limit by 20 percent or more in any 2 months of a
6-month period and (2) for conventional pollutants as exceeding an
average monthly limit by 40 percent in any 2 months of a 6-month
period. Additionally, exceeding a permit's monthly average limit for
either type of pollutant by any amount in 4 of 6 months is defined as
significant noncompliance. EPA also considers dischargers to be in
significant noncompliance for major scheduling or reporting
violations, such as missing by 90 days or more the scheduled date for
starting or ending a construction project needed to achieve
compliance or missing by 30 days or more a date for submitting a
discharge monitoring report.
As of fiscal year 1994, EPA's regions and the states had issued 7,053
active permits to major facilities, according to EPA's data. About
57 percent were for municipal facilities, about 41 percent were for
industrial facilities, and 2 percent were for federal facilities.
We have previously reported that compliance with discharge permits
has been problematic. Appendix I lists our relevant reports and
testimony, as well as relevant reports from EPA's Inspector General.
--------------------
\6 The 10 states are Alaska, Arizona, Idaho, Louisiana, Maine,
Massachusetts, New Hampshire, New Mexico, Oklahoma, and Texas.
\7 Both toxic and conventional pollutants can cause adverse health
and environmental effects. Toxic pollutants generally include
organic chemicals such as solvents, dioxins, and PCBs; metals such as
mercury, lead, copper, chromium, and cadmium; and pesticides.
Conventional pollutants include hydrocarbons, fats, acids, bacteria,
and organic wastes.
SIGNIFICANT NONCOMPLIANCE WITH
DISCHARGE PERMITS IS FREQUENT
AND UNDERSTATED
------------------------------------------------------------ Letter :3
Our analysis of EPA's compliance data for fiscal years 1992 through
1994--the last 3 fiscal years for which complete-year data are
available--shows that from 18 to 27 percent (1,272 in 1993 and 1,917
in 1994) of the major regulated facilities were in significant
noncompliance. As figure 1 shows, violations of effluent limits were
a frequent cause of significant noncompliance, occurring at about 1
in 6 major facilities in 1994.
Figure 1: Annual Percentage of
Major Dischargers in
Significant Noncompliance
(See figure in printed
edition.)
Note: This chart presents the percentage of permittees in
significant noncompliance during each year. Permittees were counted
only once for each category of noncompliance, even if they had
violations in more than one category. The priority for reporting
facilities' violations in the chart was as follows: (1) effluent
violations (considered the most significant), (2) scheduling
violations, and (3) reporting violations. For example, a facility
that had both effluent and other violations was counted once in the
effluent violation category.
Source: GAO's analysis of data from EPA's Office of Enforcement and
Compliance Assurance.
During fiscal year 1994, 1,213, or 63 percent of the 1,917 facilities
in significant noncompliance, had violated their effluent limits.
The remaining 704, or 37 percent of the facilities in significant
noncompliance, had missed major milestones in their compliance
schedules or had missed a required reporting date by 30 days or more.
While missing a reporting date may simply indicate an administrative
problem, it may also indicate that unreported violations of effluent
limits have occurred.
Appendix II contains additional data from EPA's Permit Compliance
System on the frequency with which major facilities violated their
discharge permits. Information about variations among EPA's regions
and the states appears in the appendix, together with a chart
displaying the frequency of major dischargers' overall noncompliance
with their permits. During fiscal year 1994, 50 percent of the major
dischargers were in noncompliance with the requirements in their
permits at some time during the year; this statistic includes both
lesser infractions and the significant violations of requirements
discussed in the preceding paragraphs.
Data on the length of time that major facilities remained in
significant noncompliance were readily available only for 1993 and
1994. These data show that EPA generally removed dischargers from
the category of significant noncompliance within 6 months. Either
the discharger had returned to compliance or EPA or a state had taken
enforcement action requiring the facility to return to compliance
within a specified time. According to EPA's data as of the end of
1994, 82, or only 1 percent of the facilities, had been in
significant noncompliance for 6 months or more; 43, or 0.6 percent,
had been in significant noncompliance for over 9 months, and 14 had
been in significant noncompliance for more than 1 year. The data for
1993 exhibit a similar pattern.
EPA'S SYSTEM UNDERSTATES
SIGNIFICANT NONCOMPLIANCE
---------------------------------------------------------- Letter :3.1
EPA's Permit Compliance System does not identify many cases of
significant noncompliance, even though the system contains the
information needed to do so. According to EPA officials and studies
that EPA performed in 1992 and 1994,\8
the actual rate of significant noncompliance for effluent violations
may be twice as high as the system now indicates.
The dimensions of the problem are illustrated by analyses contained
in EPA's 1992 and 1994 studies. These analyses were based on the
same information sources that the agency regularly uses to identify
cases of significant noncompliance.
The 1992 analysis focused on the 6-month period from April 1992
through September 1992, when EPA's system found 445 major
facilities nationwide in significant noncompliance for effluent
violations. However, EPA's analysis found that an additional
635 facilities, or 1080 in total, had significant violations of
effluent limits during this period.
The 1994 analysis focused on the 6-month period from December 1993
through May 1994, when EPA's system found 580 major facilities
nationwide in significant noncompliance for effluent violations.
However, EPA's analysis found that an additional 574 facilities,
or 1,154 in total, had significant violations of effluent limits
during this period. Figure 2 shows how the rate of significant
noncompliance would increase if the significant violations of
daily maximum limits were added to the violations of monthly
average limits.
Figure 2: Percentage of Major
Dischargers Violating Effluent
Limits With and Without Daily
Maximum Limits
(See figure in printed
edition.)
Note: Because this chart is based on data for 6 months, the rate of
significant noncompliance varies from the annual rates discussed
earlier in this report.
Source: GAO's analysis of data from EPA's Office of Regulatory
Enforcement's 1994 Study of Monthly Averages and Related Impacts for
the period from December 1993 through May 1994.
--------------------
\8 RNC/SNC Monthly Averages, Office of Wastewater Enforcement and
Compliance, EPA, 1992 (unpublished); and 1994 Study of Monthly
Averages and Related Impacts, Office of Regulatory Enforcement, EPA,
1994 (unpublished).
EPA'S CRITERION FOR SCREENING
EXCLUDES MANY CASES OF
SIGNIFICANT NONCOMPLIANCE
------------------------------------------------------------ Letter :4
EPA's Permit Compliance System understates significant noncompliance
because its criterion for screening cases has not remained consistent
with the types of discharge limits used in permits. The cases that
this criterion misses may be as serious from an environmental
perspective as the cases that it identifies.
EPA'S CRITERION IS OUTDATED
---------------------------------------------------------- Letter :4.1
When EPA screens facilities' discharge monitoring reports and its own
and the states' reports of inspections for cases of significant
noncompliance each quarter, it identifies only violations of effluent
limits expressed in the discharge permits as monthly average limits.
This criterion excludes violations of effluent limits expressed in
other terms, primarily as daily maximum limits. Effluent limits can
be written into permits in a variety of terms--such as daily maximum
limits, weekly average limits, or monthly average limits--all of
which restrict the quantities of pollutants that can be discharged
over time.\9
Many effluent limits are written as daily maximum or other limits as
well as monthly average limits, and EPA's studies determined that
many violations of daily maximum and other limits have occurred.
EPA officials explained that the agency developed its criterion for
identifying significant noncompliance about 10 years ago, when it
expected that the discharge limits for pollutants would most likely
be expressed as monthly average limits, as called for by EPA's
regulations. EPA's regulations require permit writers, whenever
practicable, to establish monthly average limits for pollutants that
are discharged continuously.\10 EPA's training manual for permit
writers states that permit writers should usually establish both a
maximum limit, such as a daily maximum limit, and an average limit,
such as a monthly average limit, when limiting pollutant discharges.
Despite EPA's regulations and instructions, many facilities do not
have monthly average limits written into their permits for pollutants
that are discharged continuously. EPA reported in its 1992 and 1994
studies that many permits contain a daily maximum limit for a
pollutant, but not a corresponding monthly average limit. EPA's
studies estimated that 45 percent of all discharge permits express
some effluent limits in terms other than monthly averages. Also,
according to EPA, 15 percent of the permits for major facilities were
issued without monthly average limits for half of the pollutants with
numeric limits.
EPA enforcement and permitting officials suggested several reasons
why so many discharge limits would be expressed only as daily maximum
limits. First, only daily maximum limits are appropriate for some
facilities when discharges are occasional. Second, some permit
writers had difficulty interpreting EPA's technical guidance in the
mid-1980s and therefore established daily maximum limits even when
discharges were continuous. Third, according to EPA enforcement
officials, dischargers may sometimes urge permit writers to establish
only daily maximum limits while their permits are being developed
because they believe such limits will prove less costly. The
officials explained that a pollutant can be discharged in greater
amounts under a daily maximum limit because such a limit is based on
the peak, or highest allowable, pollutant discharge. In contrast, a
monthly average limit incorporates off-peak discharges and is
therefore more stringent. Finally, according to EPA enforcement
officials, some dischargers are aware that EPA uses the monthly
average limits for setting enforcement priorities, and they may seek
to obtain effluent limits that will not trigger a finding of
significant noncompliance for violations.
--------------------
\9 For example, a monthly average discharge limit is defined as the
highest allowable average of daily discharges over a month. A daily
maximum limit is defined as the maximum allowable discharge for any
single observation in a given day.
\10 40 C.F.R. sec. 122.45(d).
UNIDENTIFIED CASES OF
SIGNIFICANT NONCOMPLIANCE
CAN HAVE SERIOUS
ENVIRONMENTAL EFFECTS
---------------------------------------------------------- Letter :4.2
According to EPA enforcement officials, the violations of daily
maximum limits that the Permit Compliance System's criterion does not
identify as cases of significant noncompliance may be no less serious
from an environmental perspective than the violations that are
identified as such. Toxic pollutants have frequently been involved.
Included among the significant violations were discharges of ammonia,
chlorine, and oxygen-demanding pollutants, which are leading causes
of fish kills, according to EPA. About 70 percent of the violations
that the criterion did not identify as cases of significant
noncompliance were violations of water-quality-based discharge limits
that are based on analyses of risks to affected organisms posed by
exposure to pollutants. Table 1 lists the 20 toxic and conventional
pollutants that EPA found were being most frequently discharged in
excess of daily maximum limits that EPA identified in its 1994 study
as significant violations.
Table 1
Most Frequently Violated Daily Maximum
Limits, by Pollutant, From December 1993
Through May 1994
Number of significant
Type of pollutant\a violations
---------------------------------------- ----------------------------
Toxic
Chlorine 532
Zinc 124
Copper 120
Phenolics 50
Lead 46
Cyanide 42
Mercury 41
Cadmium 40
Copper 34
Nickel 30
Conventional
Total suspended solids 439
BOD\b 288
Nitrogen, ammonia 168
Settleable solids 146
Phosphorus 86
Carbonaceous BOD\b 74
Iron 73
Oil and grease 48
Sulfide 34
Surfactants 32
----------------------------------------------------------------------
\a This table accounts for 2,540 of the 2,957 significant violations
of effluent limits that EPA identified for 20 conventional and 63
toxic pollutants. For the 20 pollutants listed in the table, the
limits were exceeded 30 times or more.
\b Biochemical oxygen-demanding pollutants.
Source: EPA's Office of Regulatory Enforcement's 1994 Study of
Monthly Averages and Related Impacts for the period from December
1993 through May 1994.
ENFORCEMENT IS LIMITED, AND
PENALTIES CAN VARY
------------------------------------------------------------ Letter :5
EPA assigns priorities for enforcement action to facilities whose
violations have met its criterion for significant noncompliance, and
it bases its penalties, in part, on the types of limits that the
facilities have violated. Consequently, EPA and the states have
taken limited formal enforcement action against facilities that have
violated daily maximum and other limits that do not meet the
criterion for significant noncompliance. Also, permittees whose
continuous discharges are subject to daily maximum limits only are
subject to much smaller penalties for significant violations than
permittees whose discharges are subject to both daily maximum and
monthly average limits.
ENFORCEMENT
---------------------------------------------------------- Letter :5.1
EPA's regions and the states concentrate their enforcement resources
on facilities that the Permit Compliance System has identified as
being in significant noncompliance. Consequently, according to EPA
officials, EPA and the states have given much less attention to
violations of daily maximum limits, which do not meet the system's
criterion for significant noncompliance, than to violations of
monthly average limits, which do meet the criterion. Not
surprisingly, EPA's 1992 and 1994 studies determined that few formal
enforcement actions\11 had been taken by EPA or the states for
violations of effluent limits that were not expressed as monthly
average limits.
EPA also found that when significant violations of limits other than
monthly average limits were identified, they were not resolved
quickly. For example, an EPA analysis of data from December 1993
through October 1994 identified 276 facilities with significant
violations of effluent limits expressed as daily maximum limits. The
analysis showed that the violations had occurred at 192 of these
facilities for over 6 months and at 116 facilities for 9 months. In
May 1993, after identifying these disparities in enforcement, EPA
notified its regions that violations of daily maximum limits and
limits other than monthly average limits might be occurring without a
prompt enforcement response, and it indicated that additional cases
should be considered for action. Then, in an August 1993 memorandum,
the agency called for its regions and the states to increase their
attention to violations of daily maximum limits and to review permits
to ensure that monthly average limits were being specified whenever
practicable. Nevertheless, EPA's 1994 study shows that compliance
and enforcement remained problematic in such cases. After completing
this study, EPA reviewed its criterion for significant noncompliance.
--------------------
\11 EPA's policy requires formal action before a facility has been in
significant noncompliance for two consecutive quarters. EPA defines
formal enforcement actions as those that require action to achieve
compliance, specify a timetable for those actions, contain
consequences for noncompliance, and subject the permittee to adverse
legal consequences for noncompliance. Formal actions include
administrative orders and judicial actions.
PENALTIES
---------------------------------------------------------- Letter :5.2
EPA's enforcement policy calls for penalties for significant
violations that are at least as great as the financial benefits
derived from the violations. Because most formal enforcement actions
have been taken for significant violations of monthly average limits,
comparatively few penalties have been assessed for significant
violations of other limits. During fiscal year 1994, EPA assessed
penalties of about $25 million in 323 cases of Clean Water Act
violations.\12 EPA's 1992 and 1994 studies indicate that very few
penalties were assessed for significant violations of daily maximum
limits.
In addition, because some dischargers' permits contain monthly
average limits for continuous discharges while other dischargers'
permits contain daily maximum limits only, the penalties these
dischargers can be assessed for violations can differ significantly,
and inequities can result. EPA officials said that a penalty for a
violation of a daily maximum limit could be assessed only for the day
when the violation was identified, even though violations might have
been occurring continuously for an extended period. In contrast, a
penalty for a violation of a monthly average limit could be assessed
for every day of the month in which the violation occurred. Thus,
according to the officials, a violation of a monthly average limit
for a pollutant could result in a penalty of $750,000 (30 times the
maximum penalty of $25,000 per day), whereas a violation of a daily
maximum limit for the same pollutant over the same period of time
could result in a penalty of $25,000. EPA officials explained that
the agency's penalty policy was consistent with the use of monthly
average limits for continuous discharges and that when the policy was
designed, they had not anticipated that daily maximum limits would be
used widely for such discharges. EPA's 1992 and 1994 studies do not
provide information on the actual penalties assessed or the revisions
that may be needed to ensure that penalties are assessed equitably.
EPA officials agreed that the agency may need to revise its
assessment of penalties. Criteria for enforcing NPDES permits,
according to the act, include (1) the severity of the violation, (2)
the degree of economic benefit obtained by the facility through the
violation, (3) and the previous enforcement actions taken against the
violator. Also important, according to EPA, are the deterrent effect
of the agency's enforcement response on permittees in comparable
situations, considerations of fairness and equity, national
consistency, and the NPDES program's integrity. As we noted in our
1991 report,\13 penalties play a key role in environmental
enforcement by deterring violators and by ensuring that regulated
entities are treated fairly and consistently so that no one gains a
competitive advantage by violating environmental regulations. We
also stated that the Clean Water Act and other environmental statutes
have been violated repeatedly when penalties have not been applied.
--------------------
\12 See EPA's 1995 report (EPA 300-R-95-004).
\13 Environmental Enforcement: Penalties May Not Recover Economic
Benefits Gained by Violators (GAO/RCED-91-166, June 17, 1991).
EPA IS REVISING ITS CRITERION
FOR SIGNIFICANT NONCOMPLIANCE
------------------------------------------------------------ Letter :6
On September 21, 1995, EPA's Assistant Administrator for Enforcement
and Compliance Assurance announced that, effective in 1 year, the
agency would implement a revised criterion for significant
noncompliance. According to EPA's decision memorandum, the revised
criterion will (1) capture significant violations without including
marginal violations, (2) include the monthly average limits that are
now included, and (3) include other types of average limits, such as
weekly average limits, and maximum limits, such as daily maximum
limits.
During the 1-year delay, EPA will incorporate the revised criterion
for significant noncompliance into the Permit Compliance System.
EPA's decision memorandum does not discuss the penalties that may be
assessed for the different types of violations. Neither does it tell
the regions or the states how to develop appropriate penalties for
violations of the types of discharge limits, such as daily maximum
limits for continuous discharges, that will now receive formal
enforcement action.
CONCLUSIONS
------------------------------------------------------------ Letter :7
EPA's decision to expand the criterion for significant noncompliance
is important because it should enable the agency's regions and the
states to more completely identify those dischargers in significant
violation of their permits. More comprehensive identification of
significant noncompliance should also allow the regions and states to
set priorities for enforcement that consider the environmental
threats posed by the violations. We believe that this action is
appropriate and will strengthen the integrity of the NPDES program.
In addition, some adjustment appears warranted to make the assessment
of penalties for significant and comparable violations of different
types of discharge limits more equitable. EPA itself is aware that
its current assessment of penalties may not be consistent with its
criteria for enforcement of the Clean Water Act.
RECOMMENDATION
------------------------------------------------------------ Letter :8
We recommend that the Administrator, EPA, revise the assessment of
penalties for violations of the Clean Water Act to ensure that the
penalties for significant and comparable violations of different
types of discharge limits are equitable. In developing the changes,
the Administrator should consider the economic benefits gained from
noncompliance, the severity of the violations, the permittee's
previous compliance record, and the deterrent effect of the penalty.
AGENCY COMMENTS
------------------------------------------------------------ Letter :9
We provided copies of a draft of this report to EPA for its review
and comment. The Director of EPA's Office of Enforcement and
Compliance Assurance, Water Enforcement Division, provided us with
clarifying and technical comments, which we incorporated into the
report as appropriate. According to the Director, EPA is considering
our recommendation.
SCOPE AND METHODOLOGY
----------------------------------------------------------- Letter :10
To accomplish our objectives, we interviewed officials in EPA's
Office of Water and Office of Enforcement and Compliance Assurance.
We obtained and reviewed EPA reports and documents and analyzed
relevant data from EPA's Permit Compliance System. We did not verify
the completeness, accuracy, and reliability of the data maintained in
the Permit Compliance System's database. Such verification would
have required a significant investment of time and resources because
EPA's database contains a large volume of data.\14 We also did not
determine independently whether EPA's regions have increased their
attention to violations of daily maximum or other types of effluent
limits. Our work was conducted from May 1995 through February 1996
in accordance with generally accepted government auditing standards.
--------------------
\14 We have also pointed out that the NPDES program does not have the
controls needed to ensure the accuracy of dischargers' self-reported
monitoring data. See Environmental Enforcement: EPA Cannot Ensure
the Accuracy of Self-Reported Compliance Monitoring Data
(GAO/RCED-93-21, Mar. 31, 1993).
--------------------------------------------------------- Letter :10.1
As arranged with your office, unless you publicly announce its
contents earlier, we plan no further distribution of this report
until 7 days from the date of this letter. At that time, we will
make copies available to interested congressional committees; the
Administrator, EPA; and other interested parties. We will make
copies available to others on request.
Please call me at (202) 512-6111 if you or your staff have any
questions about this report. Major contributors to this report are
listed in appendix III.
Sincerely yours,
Peter F. Guerrero
Director, Environmental
Protection Issues
SELECTED GAO AND EPA REPORTS ON
WATER PROGRAM ENFORCEMENT
=========================================================== Appendix I
Water Pollution: Differences Among the States in Issuing Permits
Limiting the Discharge of Pollutants (GAO/RCED-96-42, January 23,
1996).
Observations on Compliance and Enforcement Activities Under the Clean
Water Act (GAO/T-RCED-91-80, July 18, 1991).
Water Pollution: Serious Problems Confront Emerging Municipal Sludge
Management Program (GAO/RCED-90-57, Mar. 5, 1990).
Consolidated Report on the National Pollutant Discharge Elimination
System Permit Enforcement Program (EPA/IG E1H28-01-0200-0100154, Jan.
4, 1990).
Capping Report on the Computation, Negotiation, Mitigation, and
Assessment of Penalties Under EPA Programs (EPA/IG
E1G8E9-05-0087-9100485, Sept. 27, 1989).
Office of Water Enforcement and Permits National Mid-Year Evaluation
(EPA/OWEP, July 1989).
Water Pollution: Improved Monitoring and Enforcement Needed for
Toxic Pollutants Entering Sewers (GAO/RCED-89-13, Dec. 27, 1988).
Water Pollution: Stronger Enforcement Needed to Improve Compliance
at Federal Facilities (GAO/ RCED-89-13, Dec. 27, 1988).
ADDITIONAL INFORMATION ABOUT
VIOLATIONS OF THE CLEAN WATER ACT
========================================================== Appendix II
Figure II.1 shows that the rate of significant noncompliance varies
substantially by EPA region. Similarly, table II.1 indicates
significant variation from state to state. Figure II.2 shows the
overall percentage of major dischargers that are not in compliance
with their permit requirements for both significant and other
reasons.
Figure II.1: Percentage of
Major Dischargers in
Significant Noncompliance, by
EPA Region
(See figure in printed
edition.)
Note: The rate of significant noncompliance for Region 4 for fiscal
year 1992 was 15 percent; for Region 9, the rate for fiscal year 1994
was 6 percent.
Source: GAO's analysis of data from EPA's Office of Enforcement and
Compliance Assurance.
Table II.1
Major Dischargers in Significant
Noncompliance, by State, for Fiscal Year
1994
Number in Percent in
Number of Number significan significan
major with t t
discharger effluent noncomplia noncomplia
State s violations nce\b nce
---------------------- ---------- ---------- ---------- ----------
AK\a 211 12 42 19.9
AL\ 221 37 59 26.7
AR 100 19 27 27.0
AZ\a 38 6 9 23.7
CA\ 247 9 9 3.6
CO\ 111 15 23 20.7
CT\ 116 17 32 27.6
DC\a 4 0 2 50.0
DE\ 32 11 12 37.5
FL\ 295 17 34 11.5
GA\ 179 22 27 15.1
HI\ 27 0 0 0.0
IA\ 112 27 37 33.0
ID\a 69 8 12 17.4
IL\ 270 54 61 22.6
IN\ 181 54 70 38.7
KS\ 57 11 18 31.6
KY\ 122 43 44 36.1
LA\a 249 54 86 34.5
MA\a 163 39 41 25.2
MD\ 98 12 13 13.3
ME\a 98 17 20 20.4
MI\ 183 23 65 35.5
MN\ 81 13 30 37.0
MO\ 129 28 49 38.0
MS\ 85 9 10 11.8
MT\ 45 1 1 2.2
NC\ 227 37 44 19.4
ND\ 25 4 4 16.0
NE\ 67 13 18 26.9
NH\a 69 9 11 15.9
NJ 206 35 64 31.1
NM\a 34 1 7 20.6
NV 10 2 3 30.0
NY 367 55 105 28.6
OH\ 294 62 118 40.1
OK\a 96 27 36 37.5
OR\ 70 6 8 11.4
PA\ 404 106 118 29.2
RI\ 29 11 12 41.4
SC\ 184 57 98 53.3
SD\ 33 2 4 12.1
TN\ 147 24 39 26.5
TX\a 590 89 210 35.6
UT\ 39 5 10 25.6
VA\ 124 20 20 16.1
VT\ 34 3 6 17.6
WA\ 93 14 34 36.6
WI\ 137 15 26 19.0
WV\ 104 29 33 31.7
WY\ 29 4 4 13.8
----------------------------------------------------------------------
\a These states and the District of Columbia have not been approved
to operate the NPDES program.
\b Includes dischargers with effluent violations and scheduling and
reporting violations.
Source: GAO's analysis of data from EPA's Office of Enforcement and
Compliance Assurance.
Figure II.2: Percentage of
Major Dischargers Not in
Compliance With Permit
Requirements
(See figure in printed
edition.)
Note: This figure includes cases of significant noncompliance and
all other violations, including not complying with narrative
requirements, not enforcing requirements placed on indirect
dischargers, and submitting incomplete or deficient reports.
Source: GAO's analysis of data from EPA's Office of Enforcement and
Compliance Assurance.
MAJOR CONTRIBUTORS TO THIS REPORT
========================================================= Appendix III
Charles M. Adams, Assistant Director
Ronald Morgan, Evaluator-in-Charge
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