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Industry, Water Utilities Dispute Need For Stepped-Up Enforcement by EPA

Industry groups and some water utilities are disputing the need for national enforcement efforts targeting them as the Environmental Protection Agency considers new national priorities for its compliance office.

The National Association of Clean Water Agencies, in comments on EPA's proposed priorities, urged the agency to expand its Clean Water Act enforcement program beyond municipal infrastructure to include all sources of water pollution, such as large farm operations. NACWA represents publicly owned wastewater treatment works.

California dairy farmers, however, warned of the potential for duplicative state and federal regulations.

Additionally, pesticide producers disputed the need to target pesticide use near day-care centers, citing EPA studies finding only residual traces of the chemicals near the facilities. Mining trade groups pointed to recent compliance rates as evidence that their industry no longer needs to be a national enforcement priority for EPA.

EPA is reviewing its national enforcement priorities, as it tries to settle on a final list for the years 2011 through 2013. The agency announced it would be taking public comment on its list of proposed priority areas as well as recommendations for new enforcement priorities in a notice published in the Federal Register Jan. 4 (75 Fed. Reg. 146).

The comment period closed Jan. 19.

EPA reviews its national enforcement priorities every three years. The agency has identified 15 areas for consideration as priorities in 2011 through 2013 (3 DEN A-7, 1/7/10).

Priorities being considered are:
• air toxics,
• concentrated animal feeding operations,
• community-based approaches to environmental justice,
• drinking water in Indian country,
• marine debris,
• mineral processing,
• municipal stormwater infrastructure,
• new source review and prevention of significant deterioration,
• Resource Conservation and Recovery Act enforcement,
• RCRA financial assurance,
• resource extraction,
• pesticides at day-care facilities,
• surface impoundments,
• wetlands, and
• worker protection standards.

Broader Water Focus Urged
According to EPA, stormwater runoff from municipal infrastructure is responsible for 13 percent of impaired rivers and streams, 18 percent of impaired lakes, 55 percent of impaired ocean shorelines, and 32 percent of impaired estuaries.

NACWA argued in its comments that focusing on municipal infrastructure ignores other sources of water pollution such as agricultural runoff and nonpoint sources.

“We believe national enforcement priorities for the next three years that place continued emphasis on municipal utilities without addressing other sources of water impairment such as agricultural discharges will fail to achieve any meaningful water quality improvement,” Keith Jones, the association's general counsel, said.

Targeting municipal stormwater systems for a national enforcement effort without making additional federal funds available for needed improvements “places the entire financial burden on local communities and ignores the important federal and local partnership to improve water quality that was envisioned by the Clean Water Act,” Jones said.

The Chesapeake Bay Foundation also urged EPA to take a broader, watershed-based focus on addressing clean water issues, saying sector-by-sector enforcement is “outdated and fails to address the problems in a local or regional resource.”

Instead, the environmental group said EPA should take a geographic approach for impaired waterways, inspecting the permits for all relevant pollution sources in a given watershed.

“If EPA utilized a geographic approach, the agency could more comprehensively evaluate sectors that may impact one another,” the Chesapeake Bay Foundation said.

Animal Operations Targeted
Rather than focus exclusively on municipal infrastructure, NACWA suggested EPA adopt “a watershed approach” to Clean Water Act enforcement that would focus on all sources that contribute to water pollution, such as concentrated animal feeding operations.
According to EPA, nutrient runoff and spills from concentrated animal feeding operations killed 4 million fish in 19 states between 1981 and 1999. These large operations can contaminate drinking water as well as contribute to flooding and dust. The animal operations, which are generally located near poor and minority populations, also present environmental justice concerns, the agency said.
There are more than 19,000 concentrated animal feeding operations in the United States, according to EPA estimates.

However, California dairy farmers worried making animal feeding operations a national enforcement priority could overlap with that state's regulations, which already require permitting for discharge of manure and wastewater to land application areas, particularly in the Central Valley where many of the large farms operate. California requires large animal operations to develop management plans for animal waste and nutrients, monitor surface water, and periodically test soil and plants.

“It would be most unfortunate if this might result in our members being subjected to two different agencies conducting similar enforcement and compliance activities. The general order in the valley and the other regulatory options currently in use under California regulatory law are working effectively,” Michael Marsh, chief executive officer of the Western United Dairymen, said in his comments.
The Central Valley Regional Water Quality Control Board has been actively enforcing the discharge requirements for concentrated animal feeding operations, and since 2007 discharges “are episodic nearly to the point of being rare,” according to the dairy group.

In comments submitted jointly, the Environmental Integrity Project, Earthjustice, Environment America, Appalachian Voices, and Sierra Club suggested EPA adopt the corporate wide settlement approach it has used in other industries such as electricity generation to address industrial farm operations, which often operate under contract to much larger corporations.

“While individual contract farmers may be cash poor, the large companies that direct their operations have the deep pockets to invest in the environmental controls that are needed to keep manure out of our rivers and creeks,” the environmental groups said.

‘No Support' for Pesticide Priority
Pesticide producers objected to EPA's consideration of pesticide use near day-care centers as a national priority, disputing whether it presents a pervasive health concern.

Prior studies by EPA have found only residual traces of pesticides in tested homes and day-care centers, said James Skillen, director of science and regulatory affairs for Responsible Industry for a Sound Environment.

According to the group, which represents more than 225 producers and suppliers of specialty pesticide and fertilizer products, “there is currently no support for including day care facilities” on EPA's national priority list.

“These miniscule concentrations are certainly not an indication of pesticide misuse at these facilities. In fact, such concentrations of pesticide residue show that these pesticides are being used judiciously and in compliance with product labels at day care facilities,” Skillen said in his comments.

EPA has “not conducted sufficient inspections” to determine whether there is a pattern of noncompliance of pesticide use near day care facilities, but “anecdotal evidence such as reported pesticides exposure incidents and calls/referrals to state and local health departments suggest that a pattern of noncompliance may exist since pesticides exposures should not be occurring if label directions were properly followed,” according to an EPA fact sheet on the proposed pesticide priority.

Environmental groups have pushed EPA to take additional steps to protect children and day-care facilities from exposure to pesticides.
Earthjustice and Farmworker Justice filed a petition with EPA Oct. 14, 2009, asking the agency to set stronger interim prohibitions on pesticide spray drift to protect children as the agency considers changes to its pesticide labeling requirements (200 DEN A-6, 10/20/09).

EPA should “expeditiously evaluate the exposure of children to pesticide drift and impose safeguards to ensure that children are protected from aggregate pesticide exposures, including pesticide drift; and immediately adopt interim prohibitions on the use of toxic drift-prone pesticide such as organophosphates and n-methyl carbamates near homes, schools, parks, and daycare centers or wherever children congregate,” the petition said.

Beyond Pesticides, a coalition that favors further restrictions on pesticides use, argued for making pesticides near day-care facilities a national priority because children are disproportionately affected.

“Children have different susceptibilities due to physiological, metabolic, and behavioral characteristics that differ from adults,” Kagan Owens, the group's senior project associate, said in comments. “They are especially sensitive to pesticide exposures as they take in more pesticides relative to their body weight than adults and have developing organ systems that are more vulnerable and less able to detoxify toxic chemicals. Even at low levels, exposure to pesticides can cause serious adverse health effects.”

Mining Industry Disputes Noncompliance
Mining associations challenged EPA's proposal to retain mineral processing as an enforcement priority, arguing that the industry's compliance rates makes further national focus unnecessary.

According to the Northwest Mining Association, EPA's rationale for retaining mineral processing as a priority enforcement area “completely disregards the fact that compliance rates have increased for the mineral processing industry.”
According to EPA, mining and mineral processing “generate more corrosive and toxic waste than any other industrial sector.” EPA based that on inspections performed during fiscal years 2005 through 2008.

The association said EPA's rationale for keeping mining and mineral processing as national enforcement priorities does not reflect the current state of the industry. EPA's own inspectors found no or only minor compliance issues at more than half of the 40 non-phosphoric mineral processing facilities it recently inspected, according to the association. Of the 18 facilities deemed not to be in compliance, all of them are taking corrective measures, the association said.

“If EPA believes there continues to be a pattern of noncompliance, EPA must share the inspections, data or other information relied upon with the mining and mineral processing industry, and allow an opportunity to comment on that information,” the National Mining Association said in its comments. “Moreover, if the agency were to decide to continue the priority, EPA should narrow it to those sub-sectors of the mining and mineral processing industry that still show a provable pattern of noncompliance.”

The Northwest Mining Association also cautioned EPA that adding surface impoundments as a national priority area could duplicate efforts already being made in the mining and mineral processing sector.

“These facilities have already been inspected and thoroughly scrutinized by the agency under the mining and mineral processing enforcement and compliance initiative,” the association said.