No. 9 — New York Times Series on Clean Water Act Enforcement by the States, Shows Ohio Barely reaching the Surface in Water Protection
Across the nation, the system that Congress created to protect the nation’s waters under the Clean Water Act of 1972 today often fails to prevent pollution. Begining with the August 2009 story on Atrazine in the Piqua, OH water system, the New York Times series “Toxic Waters: A Series about the Worsening pollution in American waters and regulators’ response,” documented the poor record of the States when it comes to protecting America’s water supply from agricultural, industrial, and municipal waste.
Records analyzed by The Times indicate that the Clean Water Act has been violated more than 506,000 times since 2004, by more than 23,000 companies and facilities, according to reports submitted by polluters themselves.
Some violations are relatively minor. But about 60 percent of the polluters were deemed in “significant noncompliance” — meaning their violations were the most serious kind, like dumping cancer-causing chemicals or failing to measure or report when they pollute. The authors of the New York Times series conducted exhaustive research on enforcement throughout the country. Their results showed the state of Ohio, the arguable birthplace of the Clean Water Act, as near the bottom of enforcement.
According to the data, from 2004-2007, Ohio is a leader in number of Clean Water Act permitted facilities (3,114), and a leader in number of violations of the Clean Water Act per 100 facilities (62.3). However, Ohio has only commenced enforcement activities against 19 of the more than 1,900 violations.
One major reason for Ohio EPA’s lack of enforcement is its lack of resources. According to Ohio EPA-Division of Surface Water, the Division that is in charge of Clean Water Act regulation in Ohio, $1.50 million, of the Division’s $30 million annual budget is allocated to enforcement. This lack of resources also is a factor with the Ohio Attorney General’s Office Environmental Enforcement Section. The AG’s office routinely sees great turnover as young attorneys work sometimes two years and then leave for other jobs in the Office or with law firms. This fact puts a great amount of strain on the few senior attorneys in the office to maintain a rather large number of cases that routinely take one year to many years to proceed through the system. Turn over and loss of experienced attorneys makes efficiently prosecuting even the least complicated violations of law practically preventative.
However, another limiting factor in the capacity for enforcement in Ohio is sheer politics. While it is not a new tactic, recently the Ohio General Assembly and members of the regulated community have portrayed over-enforcement and predatory permitting and fines by Ohio EPA Division of Surface water, as one (if not the number one) reason for the negative job growth and economic decline in the state.
“The effect, in the eyes of OEC, has been a lack of desire by the Agency to strictly enforce violations of the Clean Water Act, for fear that the General Assembly will further cut its budget or its jurisdiction (or both). The New York Times series has finally debunked this industry mythology that Ohio EPA over enforces.” — Trent Dougherty, Director of Legal Affairs, Ohio Environmental Council
“In 2010, the citizens themselves will take the torch, and accept the role of enforcer of Ohio’s water quality laws,” predicts Dougherty.
Enforcement of water quality protection laws is hampered both by lack of money and lack of political will. However, the Clean Water Act provides a mechanism for enforcement in the law that has gone underused in this state – Citizen Suits.
While Congress intended federal and state agencies to be primarily responsible for enforcement, legislators also included provisions allowing private citizens to enforce the laws when the government was unwilling or unable to do so. These so-called “citizen suit” provisions, included in every major environmental law, allow “citizen attorneys general” to sue violators in federal court. Congress intended citizen suits to supplement government action, to make up the balance of necessary enforcement at times when underfunded or overworked agencies could not ensure that all laws are complied with. However, these suits have been under utilized in Ohio to aid enforcement and protect water resources.
Yet, while citizen suits can be good tools in directly enforcing the clean water requirements against a specific actor or action, they can also be used as tools for more widespread change. Well-planned and strategic citizen suits can be useful as a deterrent for other potential violators, and for current violators as well.
Further, if the Environmental Enforcement Section of the Ohio Attorney General’s Office feels that they have competition on their stated “turf” (i.e. suing entities for environmental law violations), they may feel compelled to be more active in their role as chief enforcer. More citizen suits would help supplement enforcement by the AG’s office and could motivate the office to initiate more enforcement suits.