Archive for October, 2011

The second installment in the OELC’s report on the State’s Clean Water Act Violations in Ohio

(Posted by Trent A. Dougherty, Director of Legal Affairs, Ohio Environmental Council

First of all, the Ohio Environmental Law Center (OELC) would like to recognize the 39th Birthday of the Clean Water Act!  On October 18, 1972, both the US Senate and the US House of Representatives overrode President Richard Nixon’s veto of the 1972 Amendments to the Federal Water Pollution Control Act (otherwise known as the Clean Water Act).  Through challenges on jurisdiction, missed deadlines to eliminating pollution (still working on that), to the Act facing its current slings and arrows from the 112th Congress, the CWA has certainly cleaned the nation’s waterways and made water safe for millions of Americans.   The Clean Water Act has been most effective at cleaning up pollution from “point sources” such as sewage treatment plants and industrial facilities. In 1970, these sources accounted for 85% of the pollutants in our waters, and today account for only 15%.

However, compliance with the Act’s point source permit requirements by the thousands of regulated facilities in Ohio alone is a challenge.  Over 2,000 facilities in Ohio have had at least one effluent violation from their National Pollutant Elimination System (NPDES) permits over the pas three years.

We began the OELC series on Clean Water Act Enforcement and Compliance in Ohio on the theme of “Back to School,” shining a light on just a few of the many public schools that have had multiple and significant Clean Water Act violations for discharging tens, hundreds, even thousands of times the pollution limits in their  state permits.  As OELC attorneys reviewed thousands of NPDES compliance records, the numbers and amounts of exceedances of pollution limits from these institutions meant to teach our children was alarming.

However, as we recognized in the previous post, those schools are not necessarily the worst polluters in the state over the past three years – not by a long shot.  In this installment, we are focusing on the biggest NPDES violators in Ohio – the five facilities that, over the last three years, had over 100 effluent exceedances into already pollution impaired waters to the state.

In order to meet the promise of the Clean Water Act, we need to have strict enforcement of the permits and certifications, resulting in strict compliance with the letter and spirit of the law.  We need Good Actors incentivized to continue to be Good Actors.  We need disincentives that are strong and consistent, to turn Bad Actors (i.e. recitative violators) into Good Actors.  And of course, we resources for the state and federal regulators to monitor and investigate the thousands of regulated facilities, and the human resources of citizens to take the charge of being enforcers of the Act in their community.

“Can we afford clean water? Can we afford rivers and lakes and streams and oceans which continue to make life possible on this planet? Can we afford life itself? … These questions answer themselves.”  Senator Edmund Muskie’s question to his Senate colleagues in urging an override of President Nixon’s veto of the Clean Water Act on Oct. 17, 1972

OK, shining a light on 844 pollution incidents in three years from the  five facilities below, is not the best way to celebrate one’s 39th birthday.  Yet, the hope is that by next year, the Clean Water Act’s 40th will be cleaner. 

MILLBORNE MANOR WHP

Millborne Manor (Permit ID: OH0129836 )is a Mobile Home Community in Orrville, OH, discharging into an unnamed tributary to Sugar Creek in the Tuscarawas River Watershed.  Millborne Manor’s 107 pollution limit exceedances over the past 12 Quarters have included: Fecal Coliform exceedances up to 1900%; Nitrogen exceedances up to 3,680%; Phosphorus Violations exceeding 953%; and Total Suspended Solids exceedances from 42% to 983%.

 

VAGABOND VILLAGE

Vagabond Village (Permit ID: OH0132462) has had, over the past three years, 110 effluent exceedances violations, including violations for nitrogen, total suspended solids and fecal coliform.  Vagabond Village’s discharges into the Upper Maumee River, in a stretch designated in as impaired.

Over this 12 quarter period, Vagabond’s exceedances of fecal coliform have ranged from 4,900% to a high of 12,300%; exceeded limits for Nitrogen ranging from 7,010% to 21,000%, and Total Suspended Solids up to 3,550%.

Hilltop Meats

Hilltop Meats (Permit ID: OH0134112) has experienced 140 exceedances over the past 12 quarters.   This facility, located in Harrison, Ohio on the western edge of Hamilton County, discharges into Lower Great Miami, on an impaired stretch of the Great Miami.

Hilltop’s Clean Water Act violations for effluent exceedances include: Oil and grease exceedances of up to 3,650% its permit limit; Fecal Coliform exceedances up to 1,900%; and Nitrogen exceedances ranging from 4,900% to a staggering 95,900%.

To Ohio EPA’s credit, the Agency has issued eight (8) letters of violation to Hilltop since 2007.

HOLMES CHEESE CO INC

The Holmes Cheese Company (Permit ID: OH0075922) discharges from its treatment works into Corns Run in the Walhonding Watershed — a CWA 303 (d) listed impaired water).

Over the aforementioned Three-Year compliance period, Holmes Cheese has had 165 effluent exceedances, with a great number coming in the first six months of 2011.  For example, from the company’s Discharge point 001: Total Solids exceedances ranged from 229% to 1,817%; from 1,338% to 1,983% exceedances for Phosphorus; and Fecal Coliform exceedances from 72% to 1,233%.  In its second Discharge point (point 601) Phosphorus exceedances ranged between 2,393% to 2,954% and its Fecal Coliform exceedances ranged from 268% to 599%.

Belden Brick Company

Belden Brick Company(Permit ID: OH0008141), in Sugarcreek, Ohio, however takes first prize in the number of exceedances over the past 12 quarters – 322.  To Belden Brick’s defense, the company has a large number of outfalls from many mining operations, manufacturing plants, and its Central Maintenance Locations discharging into unnamed tributaries to the South Fork of Sugar Creek, Turkeyfoot Run, and an unnamed tributary of Broad Run in the Tuscarawas River Watershed.  What also makes Belden Brick different is the types of pollutants discharged.  For example, unlike the schools and the four previous facilities above who have exceedances for Nitrogen and Fecal Coliform, Belden Brick’s key violations are for exceedances of Total Iron and Total Manganese. From these 322 exceedances, the Ohio EPA has issued the facility 12 notices of violations.

The totals come from US EPA data supplied by the NPDES permit holders themselves.  The US EPA data is presented in total exceedances over each of 12 quarters, and current to April – June 2011.

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The first installment in the OELC’s report on the State’s Clean Water Act Violations in Ohio

(Posted by Trent A. Dougherty, Director of Legal Affairs, Ohio Environmental Council,Director of the Ohio Environmental Law Center)

 Last month thousands of Ohio youngsters went back to school.  Back to Algebra tests.  Back to vocabulary tests.  Back to failing water quality tests?  Back to nitrogen, total suspended solids, and even fecal coliform pollution?  Unfortunately, yes. A surprising number of Elementary, Middle, and High Schools around the state of Ohio currently are and/or have been in substantial non-compliance of their water pollution discharge permits in violation of the Federal Clean Water Act.

According to compliance data submitted by the schools under their National Pollution Discharge Elimination System (NPDES) permits, over the past 12 Quarters, the following schools have violated the pollution discharge limits of their permits throughout the past three years.

These schools do not represent, necessarily, the most flagrant violators of the Act, nor do their violations necessarily result in the worst pollution to Ohio’s waters.  Nor even are these the only five schools violating the Clean Water Act permits.  However, these schools and other similar schools have been, and some currently are, discharging sometimes in excess of thousands of times more than the amount allotted by their state permit.  These excessive discharges include  pollutants such as Fecal Coliform, sediment (total suspended solids), dissolved oxygen, and nitrogen — all can contribute to human and environmental health problems.

Further, all of the schools listed below discharge into a watercourse that is already listed by the state as being impaired.  Continued exceedences only look to impair these waters further.  What makes this most problematic is the small number of “enforcement” actions conducted by the state in response to such excessive violations.

The following list contains the data reported on the US EPA’s Enforcement & Compliance History Online NPDES database.  The data online is current as of the April 2011- June 2011 reporting quarter, and reports the exceedences in PERCENT OVER the permit limit for each regulated pollutant for the past 12 quarters.  As discussed in an earlier post, our goal is to shine light on the industries and issues that are impacting Ohio’s water quality and spark a move toward compliance.  Hopefully we will succeed.

1.       Franklin Monroe Elementary  School

8638 OAKES RD , ARCANUM, OH 45304

Ohio EPA Permit No. OH0133949

Upper Great Miami Watershed– Painter Creek.

  • Exceedences of CBOD range from 1,080% in QTR 4,   April- June 2009 to 4,800% in QTR 2, October – December 2008.
  • Exceedences of Fecal Coliform: range from 48,900% in QTR 6, October – December 2009 to the highest exceedence of 99,900% in QTR 1, July – September 2008.
  • Exceedences of Nitrogen, Ammonia: range from 653% in QTR 3, January – March 2009 to 6,300% in QTR 2, October – December 2008.
  • Exceedences of Total Suspended Solids:  Solids, total suspended range from 175% in QTR 8, April – June 2010 to 2,317% in QTR 6, October – December 2009.
  • Notices of Violation: ONE (1) Letter of Violation/ Warning Letter Dated: November 10th, 2008

Franklin-Monroe has not had any exceedences during the last two quarters reported on the USEPA compliance site (the first two quarters of 2011), and the hope is that violations have ceased.

2.       Neal Elementary School

3385 Youngstown-Kingsville Rd, Vienna OH 44473

Ohio EPA Permit No. OH0129097

Shenango River Watershed

  • Exceedences of CBOD: range from 295% in QTR 1, July – September 2008 to 3450% in QTR 7, January – March 2010.
  • Exceedences of Fecal Coliform: range from 600% in QTR 8, April – June 2010 to the highest exceedence of 329,900% in QTR 6, October – December 2009.
  • Exceedences of Nitrogen, Ammonia:  range from 665% in QTR 11, January – March 2011 to 6,600% in QTR 5, July – September 2009.
  • Exceedences of Total Suspended Solids: range from 233% in QTR 11, January – March 2011 to 11,624% in QTR 3, January – March 2009.
  • Notices of Violation: (1) -Letter of Violation/ Warning Letter Dated: June 20th, 2007

3.       Matthews High School

4429 Warren-Sharon Rd, Vienna, OH 44473

Ohio EPA Permit No. OH129089

Mahoning River Watershed – Squaw Creek

  • Exceedences of CBOD: 760% in QTR 10, October – December 2010 to 94,979% in QTR 2, October – December 2008
  • Exceedences of  Fecal Coliform: ranging from 360% in QTR 1, July – September 2008 to 89,900% in QTR 6, October – December 2009.
  • Exceedences of  Nitrogen, Ammonia: ranging from 1,505% in QTR 9, July – September 2010 to 92,900% in QTR 3, January – March 2009
  • Exceedences of   Total Suspended Solids:  ranging from 133% in QTR 9, July – September 2010 to 97256% in QTR 4, April- June 2009.
  • Notices of Violation: One Letter of Violation/ Warning Letter dated: June 20th, 2007

4.       Colonel Crawford High School

2303 State Route 602, North Robinson, OH 44856

Ohio Permit No. OH0135615

Sandusky River Watershed

  • Exceedences of CBOD: ranging from 38% in QTR 11, January – March 2011 to 296% in QTR 2, October – December 2008
  • Exceedences of  Nitrogen, Ammonia:  ranging from 4% in QTR 7, January – March 2010 to 1,217% in QTR 11, January – March 2011
  • Exceedences of   Total Suspended Solids: ranging from 23% in QTR 5, July – September 2009 to 300% in QTR 3, January – March 2009
  • Notices of Violation: One (1) Notice of Violation June 30th, 2009

5.       Hardin-Northern Schools

11589 STATE RTE 81, DOLA, OH 45835

Ohio Permit No. OH0132951

Blanchard River Watershed

  • Exceedences of CBOD: ranging from 63% in QTR 11, January – March 2011to 97% in QTR 9, July – September 2010.
  • Exceedences of  Fecal Coliform of 320% in QTR 9, July – September 2010.
  • Exceedences of  Nitrogen, Ammonia:  ranging from 15% in QTR 7, January – March 2010 to 7,967% in QTR 11, January – March 2011
  • Exceedences of   Total Suspended Solids: ranging from 2583% in QTR 10, October – December 2010 to 317% in QTR 9, July – September 2010
  • Notices of Violation: Hardin-Northern has yet to receive any informal Notices of Violation.

 What to do? 

Obviously something has to be done to curb the amount of pollution and Clean Water Act Violations from these and similar schools around the state.  When dealing with private entities, a large penalty is usually the best way for water quality compliance to make it to the top of the priority list for a corporate CEO.  However, in this time of local government budget slashing, schools having to drop extracurricular activities and the wholesale discharge of teachers and staff, forcing a public school to dole out thousands of dollars it doesn’t have will not get them closer to cleaning up.  Enforcement does not have to be in the form of 6-figure penalties when dealing with a public institution.  Ohio EPA, we believe, has the authority to initiate reasonable compliance schedules with these institutions, so that they can get into compliance in quick enough to curb excessive pollution, but in a way that will not drain the already dry pockets of these school districts.  Also, there is the potential to seek creative ways of compliance through shared services (districts working with local municipalities) and public/private partnerships where private companies get the good press from helping local schools stay clean.

In the alternative, if Ohio EPA cannot or does not enforce the Clean Water Act, it is up to citizens, environmental and community organizations to take charge of protecting the water quality of their communities.

However, in this case, it should be a priority for Ohio EPA to work with these institutions to clean them up quickly and get them on a path for perpetual compliance.

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(Posted by Trent A. Dougherty, Director of Legal Affairs, Ohio Environmental Council, Director of the Ohio Environmental Law Center)

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.  Two years ago, the New York Times ran an exposé about the worsening pollution in America’s Waters and the regulators’ response. US EPA 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 other 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 conduct 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 had only commenced enforcement activities against 19 of the more than 1,900 violations.

Yet, that was two years ago.  There is a new Administration in Ohio, a new Director of Ohio EPA, and renewed objective throughout state government toward Regulatory Reform for businesses. This begs the question, has anything changed in terms of enforcement of the Clean Water Act?

Using the same USEPA data that the New York Times used in its exposé, albeit updated, we will begin our own series on Ohio’s Clean Water Act enforcement, periodically, throughout the upcoming weeks and months.  This data comes directly from the periodic self-reports from the regulated entity.  Our series will not focus on heart-wrenching stories of toxics in drinking water causing children to get sick, nor will we pit one state’s enforcement against another.  Our series will show how the state’s enforcement procedures have changed, who and where are some of the most egregious ongiong violators of the Clean Water Act, and what can be done to get closer to compliance.  We will attempt to shine light on the industries and issues that are impacting Ohio’s water quality, watersheds that are of great concern, and changes being made within the agency to seek compliance with the Clean Water Act.

We also will provide our own recommendations for tackling the momentous effort of seeking compliance with the Clean Water Act.  Our recommendations are simple, and meant to give both arms of enforcement (the people and the state regulators) more resources to seek compliance with federal law.  The Ohio Environmental Law Center’s recommendations will be detailed throughout the upcoming weeks, but here is a sneak preview:

  • First,we urge all Ohioans who care about the environmental and human health implications of illegal activity occurring to Ohio’s waters and to their own communities, to be actively involved in the process.  From regulation development, permit development, to information gathering on one’s particular watershed, citizens must take their role and responsibility as an essential stakeholder in water quality protection.
  • Secondly, we urge the State of Ohio to embrace Citizen Suits as a way to enforce the Clean Water Act.  This includes both helping recruit and encouraging citizens to file enforcement actions as well as aiding citizens, where appropriate, in these legal efforts.  Further, the State needs to bolster stakeholder involvement in the regulatory process.
  • Thirdly, the Ohio EPA and Ohio Attorney General’s Office should prioritize their enforcement actions to encourage compliance, and implement quick and efficient enforcement mechanisms.
  • Finally, the Ohio General Assembly should act to provide Ohio EPA with the resources and regulatory tools necessary to protect Ohio’s waters from violations of the Clean Water Act and to make necessary changes in the law to allow Ohio to be effective and efficient enforcers.

When it comes to enforcement of the Clean Water Act, OELC’s desire is strict compliance with the law, and we feel that we share that with the Ohio EPA.  Thus, our posts hopefully will spark compliance on the side of the current violators, and perhaps spark increased enforcement activity from the state and citizens, alike.

So stay tuned to OELC’s website.  Next Week: Back to School, Back to Pollution

 

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