Clean Water Program Reports

Search • RSS Feed

Overburdened Waters: How Weak Permitting and Enforcement Have Failed to Curb High Levels of Toxic Discharge into Wisconsin Waterways 11/19/2004 overburdenedwatersreport.pdf

Executive Summary

Thirty years after the passage of the Clean Water Act, Wisconsin’s waterways continue to be the dumping grounds for high levels of pollution. Weak enforcement of permit limits established under the Clean Water Act contributes to this pollution. This report explores some of the shortcomings of clean water enforcement in Wisconsin, finding that:

Wisconsin’s waterways are overburdened by toxic pollution, most of which is legal:

- More than 1,200 industrial manufacturers, factory farms, and municipal sewage treatment plants continue to receive permits to discharge high levels of pollution directly into the state’s waterways.

- According to US EPA’s Toxics Release Inventory, more toxic pollution is directly discharged into Wisconsin’s waterways than into the neighboring states of Minnesota and Michigan combined—more than 3 million pounds in 2002 alone.

- Point source pollution has contributed to impaired water quality in more than 1,500 miles of the state’s rivers, including large stretches of the Yellow River, Big Eau Pleine River, Fox River, Rock River, and the Milwaukee River.

Illegal pollution seldom leads to enforcement action:

- An analysis of Wisconsin Department of Natural Resources data revealed more than 2,000 effluent violations at 160 distinct facilities between January 1999 and December 2002.

- One in six major facilities violated its effluent limits at least once, and one in eight minor facilities did so, during the time frame studied.

- Enforcement action (in the form of a Notice of Violation (NOV), enforcement conference, or referral to the Department of Justice) was only initiated against one in eight of the violating facilities.

Enforcement action, if taken at all, is concluded long after the initial violation:

- The average delay from a violation to the issuance of a Notice of Violation, the beginning of formal enforcement, was 147 days.

- The average delay to a referral to the Department of Justice, the necessary step for a penalty to be assessed, was 340 days.

- Nearly half (46%) of NOVs were issued more than 90 days after the violation date (144 of 310).

- 45% of enforcement conferences were held more than 4 months after the violation date (87 of 191).

- 75% of referrals to the Department of Justice occurred more than six months after the violation date (49 of 65).

On the other hand, permits to pollute are not delayed:

- As of January 2003, the Wisconsin DNR had one of the fastest permit turnaround times in the nation, and the fastest in the six-state EPA Region V. The average turnaround time is about five and a half days4.

Enforcement inspections are becoming increasingly infrequent:

- Although Wisconsin DNR seeks to inspect every major facility annually, the agency is likely to only inspect 2 of every 3 major facilities this year, down from 3 in every 4 in 20005.

- Examining records for 15 facilities with significant noncompliance over the past 3 years, we found that inspection rates per facility had declined dramatically since 1991, when the DNR averaged semiannual inspections, to 2002, when they reported under 10 inspections total.

Penalties have declined:

- In the five year period from 1997 to 2002, the number of Clean Water Act penalty cases decreased by more than 50%, from 35 to 17

- The average penalty size decreased by more than $50,000, from $65,000 to $11,400.

Already, polluters in Wisconsin are given license to discharge large volumes of toxic chemicals directly into the state’s waterways. When Clean Water Act violations are not pursued with timely, consistent enforcement actions that assess a financial penalty for environmental harm, polluters face little incentive to clean up their act--those who make capital investments to improve their environmental compliance may actually be competitively disadvantaged against those who willingly delay making such outlays, gambling that they will not face significant financial penalties.

To help tackle industrial discharge of harmful pollution in Wisconsin, we recommend the following steps, already authorized by state and federal law:

1. Ratchet down permit limits to lessen pollution legally entering Wisconsin’s waterways.

Every 5 years, industrial dischargers apply for permit renewals that specify how much they can legally discharge into the states waterways. The DNR should consistently add conditions to industrial permit renewals that would ratchet down discharges and eliminate them on specified timetables, thus meeting the intent of a longstanding Wisconsin law “to eliminate the discharge of pollutants into the waters of the state by 1985.”

2. Within a given watershed, the DNR should issue permits based on the cumulative impacts of those permits on waterways rather than issuing each in isolation.

For example, ten major industrial facilities discharge toxins to the Wisconsin River, which receives three quarters of the statewide direct discharges of carcinogens into surface waters. Permitting decisions for any given discharge should consider the impacts of the cumulative discharge from the ten facilities, not the single facility in isolation.

3. Refer more cases to the Department of Justice.

Increasing a violator’s likelihood of facing penalties creates a more even playing field for those good actors who are following the law, and helps remove the financial incentive some polluters may have to avoid making capital upgrades that would prevent such violations from occurring.

4. Implement timeline benchmarks for the stepped enforcement process.

Currently, agency staff are updating the enforcement handbook that provides guidance on how violations should be enforced. State enforcement handbook guidance should require that a Notice of Violation be issued within 6 weeks of the violation date, and set strict timelines for compliance that must be met to avoid referral to the Department of Justice for the assessment of a penalty. DOJ referrals should happen within 3 months of the violation date.

5. Ensure and facilitate the public’s right to know.

Make permit exceedance, violation, enforcement, and penalty information more easily accessible to the public by posting it on DNR’s website and compiling an annual report that includes summaries of this information.

Furthermore, we recommend the following three policy changes that would help facilitate strong enforcement of clean water laws:

1. Give DNR the ability to assess penalties administratively

Wisconsin is one of the few states in which the environmental agency does not have the authority to directly assess administrative penalties to polluters. For penalties to be assessed to violators, the state must go through a costly and time consuming judicial process. Giving DNR the ability to assess administrative penalties would provide the agency with an additional enforcement weapon that is administratively simpler to use than criminal sanctions and less harsh than license revocation.

2. Raise polluter permit fees to fill the resource gap

The Wisconsin Department of Natural Resources WPDES enforcement program currently receives 40% of its funding from the state general fund and 20% from a federal matching grant. The program receives only 4% from permit fees. In contrast, New Jersey collected $13,500,000 in permit fees alone in 2002. Wisconsin should assess permit fees at a level sufficient to cover the full costs of the Wisconsin Pollution Discharge Elimination System (WPDES) program.This should include funding to ensure the electronic monitoring pilot program is maintained and expanded to include mandatory participation by all WPDES facilities.

3. Don’t issue permits without adequate review

Polluters stand to gain—but the public loses--if staff limitations at DNR result in rubberstamping of permits (replacing adequate review which could incorporate stronger pollution controls.) DNR should not issue permit renewals without adequate review— even if heavy workloads result in delayed permits.