Regulatory Developments, Wastewater

GAO Recommends Significant Changes for EPA to Reach NPDES Compliance Goal

The Government Accountability Office (GAO) reports that almost 11,000 facilities exceeded their National Pollutant Discharge Elimination System (NPDES) permitted wastewater discharge limits and illegally discharged wastewater pollutants in 2018.

“EPA has a goal to reduce by half significant noncompliance with individual NPDES permits by the end of FY 2022,” according to the GAO. “But the data that states and facilities report to EPA to help track compliance is incomplete and has errors.”

In 2020, the EPA reported there were approximately 335,000 NPDES permitted facilities. Because the Agency estimates 11,000 facilities are exceeding their permit discharge limits, it invited the GAO to review its enforcement of the Clean Water Act (CWA). The report examines “(1) changes since 2015 in EPA’s national initiatives for ensuring compliance with the act, (2) changes in NPDES compliance and enforcement activities since 2015, and (3) the extent to which EPA is measuring progress toward compliance with the NPDES program.”

To complete the report, the GAO reviewed and analyzed EPA documents and data on NPDES compliance and enforcement activities, as well as “interviewed officials from eight states, selected in part by EPA region, to learn about their NPDES compliance and enforcement activities and data reporting.”

GAO findings

“EPA posts data that states report on their NPDES compliance and enforcement activities to its website, but the data are not reliable for identifying changes in the number of activities states conducted since 2015. EPA’s most recent assessment of states’ data showed that two of 17 states met expectations for the accuracy and completeness of the data recorded in the agency’s national database. EPA is working with states to improve their data, and it includes on its website disclosures by some states about problems and limitations with their data.  However, the agency has not ensured that all states’ disclosures are consolidated, complete, and updated. Until it does so, potential users of the data may not fully understand the data or the data’s limitations.

“EPA developed a measure to track progress toward its goal for reducing the rate of significant noncompliance by NPDES facilities with individual permits by the end of fiscal year 2022. While the measure tracks changes in the number of facilities in significant noncompliance, the results of the measure are unclear because data EPA needs to track compliance are incomplete and contain inaccuracies. According to EPA, about 70 percent of NDPES facilities have sufficiently complete data in the national database for EPA to track compliance. EPA is working with states to improve data quality, but it does not have a plan to assess the overall accuracy of the data. Until it does so, EPA cannot be certain what its measure is showing and if EPA is making progress toward its goal.”

GAO recommendations

  1. “The Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance should revise its guidance to select files for its State Review Framework assessments of state-reported data to incorporate statistically valid probability sampling.”
  2. “The Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance should ensure that consolidated, complete, and updated information on all data limitations is disclosed on the State Water Dashboard.”
  3. “The Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance should develop a plan to determine the overall accuracy and completeness of the permit limit and discharge monitoring report data recorded in its national database.”
  4. “The Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance should develop a performance measure to track the reduction in pollutant discharges resulting from enforcement actions for facilities in significant noncompliance and disclose any limitations.”

Recent NPDES changes

The general NPDES regulations were posted at Title 40 of the Code of Federal Regulations (CFR) in 1972. However, significant updates to the program in recent years, including the following, may contribute to compliance issues:

  • In 2014, the “EPA finalized minor amendments to the NPDES regulations to require that its Clean Water Act (CWA) regulations to codify that under the NPDES program, only ‘sufficiently sensitive’ analytical test methods may … be used when completing an NPDES permit application and when performing sampling and analysis pursuant to monitoring requirements in an NPDES permit.”
  • In 2014, the EPA created a final rule for cooling water intakes on existing electric generating plants and factories that withdraw at least 2 million gallons of cooling water per day. “The facilities are required to choose one of seven options to reduce mortality to fish and other aquatic organisms.  Facilities that withdraw at least 125 million gallons per day must conduct studies to help their permitting authority determine whether and what site-specific controls, if any, would be required to further reduce mortality of aquatic organisms. New units added to an existing facility are required to reduce mortality of aquatic organisms that achieves one of two alternatives under national entrainment standards.”
  • In 2015, the EPA completed a final rule substituting electronic reporting for paper reporting.
  • In 2018, the EPA created a final rule updating the application process and the NPDES program to modernize the regulations and promote the submission of complete applications.
  • Also in 2018, the EPA implemented another final rule requiring the EPA “to work with the Great Lakes States to establish public notification requirements for combined sewer discharges (CSOs) to the Great Lakes.  The requirements address signage, initial notification of local public health departments and other potentially affected entities, initial notification of the public, annual notice provisions, and development of a public notification plan.”
  • In 2019, the “EPA invited the public to consider and comment on policy options that may help promote market-based approaches to water quality improvements.”

In addition, the EPA previously discontinued two national initiatives emphasizing CWA compliance. The discontinued initiatives were focused on animal waste pollution and raw sewage and stormwater runoff. These areas were returned to the core enforcement program in 2018 and 2019, respectively. “As a result, these areas no longer receive the heightened attention and focused resources of the national initiatives, but the agency still pursues enforcement actions when needed,” according to the GAO.

“Since 2015, the [EPA] has modified one of its three national initiatives emphasizing compliance with the Clean Water Act.…,” the GAO adds. “The goal of the modified initiative is to reduce significant noncompliance with [NPDES] permits by half by the end of fiscal year 2022. Such permits set limits on discharges of wastewater from point sources, such as a pipe from an industrial facility. This goal supports EPA’s strategic objective to increase compliance with environmental laws in its strategic plan for fiscal years 2018-2022.”

Permitting for compliance

The permitting process is the first step to NPDES compliance—be involved in the process, and make sure you understand the terms and conditions of the permit. For companies to achieve success in the NPDES permitting process, the EPA makes four recommendations:

  1. Plan.
  2. Communicate.
  3. Be flexible.
  4. Collaborate.

The Agency cites an example of Boeing’s strategy and actions when it received air and wetlands permits “just a few months” after submitting permit applications in Charleston, South Carolina.

The EPA initiated its Smart Sectors Program to achieve its goal of finalizing all permit decisions within 6 months by 2022. This sector-based environmental protection program provides:

  • Meaningful collaboration with industry sectors
  • Innovative approaches to improve environmental outcomes
  • Multimedia perspective

The program is a platform “to collaborate with industry sectors and develop creative solutions that better protect the environment and public health,” according to the EPA.