WASHINGTON – Environment and Public Works Committee Ranking Member James Jeffords, I – Vt., and twelve other Senators today wrote to EPA Acting Administrator Marianne Horinko seeking answers to key questions surrounding the EPA’s failure to enforce the Clean Water Act. In July of 2003 when Jeffords and thirteen other Senators wrote to EPA Administrator Whitman asking her to respond to key questions surrounding an EPA report documenting widespread, significant non-compliance with Clean Water Act permits and a forty-five percent drop in formal enforcement actions by the Agency. Today, the Senators wrote the Agency raising serious concerns about the progress and viability of its plans to enforce the Clean Water Act. Of particular concern to the members were EPA’s explanation of the 45% drop in formal enforcement actions; an effort to consider lowering permit requirements to improve compliance; and its progress in developing an effective Facility Watch List. – The Agency cited an undocumented redirection of resources to wet weather enforcement actions as the cause of the 45% drop in formal enforcement actions since 1999. Yesterday the EPA Inspector General released a report indicating that it could not verify the Agency’s claim. – The EPA states that it will be exploring the “problem” of extremely high exceedances of permit limits by polluters. The Agency notes that these permit limits are based on human health protections, but it still intends to go forward with a dialog that would address the question of whether permit limits are currently too high. – The major action to improve compliance that the EPA highlighted was the creation of a Facility Watch List. For this to be an effective tool, decision-makers must actually use it to take enforcement actions. Jeffords said, “As attorney general of Vermont in the 1970s, during a lawsuit against an industrial polluter discharging into the waters of Lake Champlain, I discovered that the company was bypassing its own pollution control equipment and discharging directly into the lake. I thought those days were over, but clearly, there is a major non-compliance problem with clean water protections.” “I am deeply troubled that the Administration is heading toward an ‘either/or’ approach to Clean Water Act enforcement - either control wet weather flows or enforce point source discharge permits; either have high rates of non-compliance, or change the permit limits to improve compliance. Clean Water is not an either/or proposition.” In addition to Jeffords, the following Senators signed the letter: Bob Graham, D – Fla., John Edwards, D – NC, John Kerry, D – Mass., Jon Corzine, D – NJ, Frank Lautenberg, D – NJ, Joe Biden, D – Del., Joe Lieberman, D – Conn., Ron Wyden, D – Or., Hillary Rodham Clinton, D- NY, Russell Feingold, D – Wis., Charles Schumer, D – NY, Barbara Boxer D – Cal. Following is text of the letter: October 15, 2003 Honorable Marianne Horinko Acting Administrator Environmental Protection Agency Washington, DC Dear Acting Administrator Horinko: Thank you for your July 17, 2003 response to our letter raising concerns regarding the Agency’s failure to effectively enforce Clean Water Act requirements. We appreciate your detailed response to our questions regarding the Agency’s plans to respond to the Environmental Protection Agency (EPA) Inspector General and the Office of Enforcement and Compliance Assistance (OECA) recommendations for improving the EPA’s performance in enforcing the Clean Water Act. We are concerned that your letter does not present a more aggressive approach to dealing with the substantial rate of non-compliance with NPDES permits. In our opinion, noncompliance, especially when it is egregious or repeated, warrants formal enforcement. But, your letter dismisses the 45% reduction in EPA formal enforcement actions by citing an undocumented redirection of resources to wet weather enforcement actions. The only significant step that your letter describes for improving or changing the enforcement program is the creation of a Facility Watch List. This could be a useful tool, if it is actually used by decision-makers to take enforcement actions. Below we are requesting answers to specific questions on the degree to which the Watch List has actually been implemented. We are concerned that although the EPA provided a detailed response to our questions regarding the Agency’s enforcement of the Clean Water Act, the EPA is not taking the steps that are needed to bring our nation closer to the goal of clean, safe water. Wet Weather Enforcement In your response, your letter indicates that the 45% reduction in EPA formal enforcement actions is, “due to the focus on wet weather related cases…” In EPA briefings immediately following the release of the OECA report, the Agency indicated that it believed this to be the case and that the Agency would be conducting an analysis to gather data and information to support this belief. Based on the conclusions presented in the Agency’s letter, we are assuming that the analysis is complete. Please provide a copy of the analysis, including a description of the wet weather enforcement cases pursued during the 1999-2001 period that led to the diversion of resources from the NPDES major permit holders program and a comparison in terms of FTEs and other resources required to conduct an NPDES enforcement action versus a wet weather enforcement action. In your letter, the Agency also states that it will be looking at the impact of wet weather events on Concentrate Animal Feeding Operations, Combined Sewer Overflows, Sanitary Sewer Overflows, and storm water, and the relative impact of these wet weather events on environmental degradation when compared to the noncompliance of NPDES major permit holders. Please describe the results of this study, if it has been completed, its scope, your methodology, and the intended use of the results. If it has not been completed, please provide a description of the timeline, scope, methodology, and intended use of the results of this study. State Role in Enforcement Your letter describes the 9% increase in state formal enforcement actions as “encouraging.” What analysis is the Agency conducting to determine the cause of this increase, and if this is a trend or an anomaly? What has the Agency done to encourage formal enforcement actions at the state level – for example, will the EPA seek to provide additional resources to states to increase formal enforcement actions? Has the EPA made a policy decision to pursue formal enforcement actions at the state level and informal enforcement actions at the federal level? If so, please provide a copy of the decision documents. On a related issue, your letter states that during performance reviews, EPA will evaluate whether or not states are escalating enforcement actions and penalties over time. Has this occurred? If so, please describe the results of EPA’s review. Facility Watch List Your letter states that one of the major corrective actions the EPA will be taking to improve enforcement is the creation of a Facility Watch List that will be used to target resources and enforcement actions at serious violators. We believe that this tool has the potential to improve enforcement if the decision-makers who receive the watch list actually use it to prioritize enforcement actions. We understand that the first version of this list was scheduled for distribution to EPA Regions during the first two weeks in September. Please provide a copy of this list, a copy of any related guidance, and a description of the enforcement actions that have begun since the Watch List was distributed. In addition, please provide a description of the difference between the Watch List and the Exceptions List previously in use at the Agency. While the creation of the Watch List may address high profile, serious violators, it does not necessarily address the 51% of the facilities in Significant Non-Compliance (SNC) that do not recover without a formal action. Please describe how you will ensure that the full 51% of facilities in SNC that require a formal enforcement action to return to compliance actually receive one. For example, does the Agency intend to request additional funds in its Fiscal Year 2005 budget for this purpose? Types of Significant Non-Compliance Your letter makes an effort to distinguish between the different types of significant non-compliance as effluent-related, reporting, or schedule violations. In a system of compliance based wholly on self-reporting, it seems evident that the integrity of the system depends on the equivalent treatment of reporting violations and other types of violations. Does the Agency have a policy to treat different types of SNC violators differently? If not, is EPA considering adopting such a policy? Data Quality In addition, your letter describes the data quality problems that exist in the Permit Compliance System (PCS) database. You state that EPA will encourage states to report penalty data prior to the implementation of the modernized PCS. What actions has the Agency taken to encourage the reporting of penalty data by states? Changing Permit Limits to Improve Compliance In a repeat of a pattern that is becoming all too familiar, your letter states that OECA intends to “have a dialogue” with the Office of Water to explore the “problem” of extremely high exceedances of permit limits by pollutant dischargers that hold NPDES permits. The OECA report noted that permit limits are established based on human health protections, but it also indicated that a dialog would address the question of whether permit limits are currently too high. We are concerned that compliance will be “improved” by relaxing the permit limits without adequate consideration of the human health effect. Has this dialog begun and if so, what are your results to date? Federal Facilities’ Lack of Compliance In response to recommendation #10 of the OECA report, you indicate that OECA will begin working with the Federal Facilities Enforcement Office to determine the root cause and possible solutions of the proportionately higher rate of non-compliance with NPDES permits among Federal facilities. Has this work begun and what are your results to date? Progress on Recidivists In response to recommendation #12 of the OECA report, your letter indicates that OECA has already begun reviewing the Agency’s existing information on recidivists. Please describe the results of this effort – what behavior patterns among recidivists has the Agency identified and how do they compare to other types of violators? PCS Modernization Effort What is the status of the EPA’s decision to potentially modify the scope of the modernized PCS database? There are several actions related to the PCS database modernization that you identified in your letter as items to be completed by the end of September 2003. What is the status of the Agency’s efforts to develop a realistic cost estimate for the PCS modernization effort, a cost-benefit analysis, and a plan for fully funding the PCS modernization effort? Your letter indicates that 2 FTEs will be added to the PCS modernization effort. What is the timing for this change and what is the source of these FTEs? Thank you for your prompt attention to this matter, and we look forward to your timely response. Sincerely,