(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