Half of major industrial water polluters in California are operating with expired pollution permits, according to an analysis of clean water enforcement data by Environmental Working Group (EWG) and Friends of the Earth (FOE). Facilities operating under expired permits include most of the state’s oil refineries and a number of power plants that are dumping a toxic soup of chemicals into the ocean, bays and rivers, including dioxin, lead, mercury, cyanide, arsenic and PCBs.

Analysis of all U.S. Clean Water Act National Pollution Discharge Elimination System (NPDES) permits for major industrial facilities in California shows that 49 percent of the permits (26 of 53) are expired as of June 2000 and 43 percent (23 of 53) have been expired for at least six months. (Table 1)

Table 1. Half of the water pollution permits for major California industries are expired

SOURCE: EWG, from U.S. EPA NPDES data, June 2000

The offenders are not small, obscure operations whose paperwork slipped through the cracks, but some of the state’s dirtiest and most high-profile facilities, who have been allowed to continue polluting with expired permits for years. Tosco Corp.’s refinery in Wilmington has been discharging water pollution under an expired permit for 27 months, Chevron’s refinery in Richmond for 34 months and and Pacific Gas & Electric’s Diablo Canyon nuclear power plant for almost 60 months.

Los Angeles County, under the jurisdiction of the Los Angeles Regional Water Quality Control Board, has 10 expired industrial permits, followed by Contra Costa County, under both the San Francisco and Central Valley Regional Water Quality Control Boards, with four. Eleven of the facilities with expired permits are discharging directly into the Pacific Ocean. Seven are polluting bays or harbors and three are discharging into the state’s rivers.

When water and sewage treatment plants operated by local or regional governments are also considered, 22 percent (65 of 227) of the major water pollution permits in California have been expired since at least the end of 1999. Although there are far more permits in the state for water treatment facilities than for industrial facilities, about one-fourth of the public facilities have expired permits, compared to well over 40 percent of the industrial sites.

California has more expired water pollution permits than all but five other states. Nationwide, about 25 percent of major industrial and public facilities have expired water pollution permits, but many large industrial states have significantly lower rates of expired permits than California, including New York (four percent), Pennsylvania (11 percent) and Illinois (17 percent). Of the ten states with a comparable regulatory caseload (more than 200 facilities), only Ohio, with 35 percent of permits expired, and Louisiana, with 47 percent, have higher rates than California. (Table 2)

Table 2. California has more major industrial facilities with expired water pollution permits than all but a handful of states.

SOURCE: EWG, from U.S. EPA NPDES data, April 2000.
* States whose water pollution permits are handled directly by the EPA.

Pollution Permits and the Clean Water Act

Water pollution permits are a crucial component of the U.S. Clean Water Act. They determine how much pollution every factory, machine shop, electric utility, sewage treatment plant or other polluter can dump into the nation’s waters. The terms of the permits are tailored to the size of the polluter, the toxicity or threat of the pollution, the technology available to clean it up, and the quality and size of the waterway receiving the discharges.

The EPA has recently proposed replacing the Clean Water Act permit system with regulations on the total amount of pollution permitted for each body of water, not an individual facility’s discharge. This would force local authorities to limit the amount of pollution discharged by each facility. But the EPA plan faces significant Congressional opposition and would take 15 years to implement.

The goals of the Clean Water Act –"to restore and maintain the chemical, physical, and biological integrity of the nation’s waters" – will not be met without up-to-date permits. When permits remain expired for years at a time, pollution can continue unchecked, water quality may deteriorate, and progress toward the Clean Water Act’s ultimate goal of "zero discharge" of pollutants is brought to a standstill.

In 43 states including California, Clean Water Act permits are issued by state regulators. In California, overall authority rests with the state Water Resources Control Board, but the permits are administered by nine regional water boards. (The exceptions are oil drilling platforms off the Southern California coast, which are permitted by the EPA.) Permits must be renewed at least every five years, at which time pollution reductions or improved treatment technologies are typically required.

Clean Water Act permits are particularly important in California, where pollution impairs a far greater share of the state’s bodies of water than the nation as a whole. While 35 to 40 percent of the nation’s rivers, lakes and estuaries are considered "impaired" – that is, they do not support swimming, fishing or other beneficial uses – more than 60 percent of California rivers and streams and 80 percent of lakes and estuaries are impaired, according to the EPA’s most recent assessment. Much of this poor water quality begins with the failure to meet deadlines to update and reissue Clean Water Act permits. Two prominent facilities illustrate the problem.

Diablo Canyon Nuclear Power Plant

Diablo Canyon’s long-expired permit, issued in 1990, allows PG&E to discharge 2.5 billion gallons of hot water, used to cool the plant’s nuclear reactor, into the Pacific Ocean each day. These discharges have caused substantial damage to marine life, wiping out many species of fish and kelp. Diablo Canyon is under the jurisdiction of the Central Coast regional water board.

But PG&E isn’t even complying with the conditions of the expired permit. After an investigation by state and federal regulators, in 1997, PG&E promised in court to stop filing fraudulent permit reports covering up the full extent of the harmful effects of its discharges. In Congressional testimony, a federal investigator said: "The PG&E reports purported to show that the cooling system . . . complied with the Clean Water Act by employing available technology to minimize adverse environmental impacts. Information PG&E left out suggested otherwise. For example, up to ninety percent of larval fish in the cooling water system perish." (FNS 1997.)

Chevron Richmond Refinery

The water pollution permit for Chevron’s Richmond refinery was issued in 1992. Not long after the permit expired in 1997, the San Francisco Regional Water Quality Control Board unanimously resolved that "dioxin pollution is a high priority for immediate action to restore water quality and protect public health." Armed with this declaration, citizens’ groups have repeatedly petitioned the board to prohibit dioxin and PCB discharges from the refinery. But in the absence of a new permit, the board’s "high priority for immediate action" remains only a goal.

The Davis Administration, like the Wilson Administration before it, appears to place a low priority on the water board’s responsibilities. Until the end of 1999, the San Francisco water board often could not meet because Gov. Gray Davis had failed to appoint a enough board members during his first year in office. Now six of the nine positions are filled, but with one member recused from Chevron cases due to a conflict of interest, all five remaining members must be present to constitute a quorum.

Regional and state water board members are appointed by the governor and confirmed by the state Senate, making the appointment process and the board’s decisions highly politicized. Davis’s slow pace in appointments means that many important water quality decision are still being made by former Gov. Pete Wilson’s appointees, who presided over a scandal-tinged regulatory system widely viewed as more accomodating of polluters than protective of public health.

Until the end of 1999, when Davis made a flurry of appointments, six of the nine regional boards were without a quorum. As of June 2000, none of the boards has been completely filled. Davis has made 35 appointments to the state and regional boards, leaving 27 Wilson-era appointees and 22 seats vacant. (Table 3)

Table 3. Makeup of California's state and regional water quality boards.

SOURCE: EWG survey, June 2000.

One-Fourth of U.S. Facilities Have Expired Permits

Nationwide, EWG’s and FOE’s analysis found that about one-fourth of all major water polluters – more than 1,690 facilities – are operating without current permits to discharge wastes to the nation’s waters. More than 770 major facility permits have been expired for two years, and 251 have been expired for five years. Many of these facilities dump huge amounts of highly toxic effluent into receiving waters.

The EPA’s Office of Inspector General (OIG) says the backlog "seriously threaten[s] the success or integrity of [EPA] operations" and that as currently run the permit program does not effectively enforce the Clean Water Act. While a measure of expired NPDES permits is not, of itself, a complete indicator of the quality of a state’s waters or the state’s water protection efforts, a large proportion of permits that have expired can indicate trouble for water quality. The national association of state environmental regulators considers the number and percentage of expired permits a "core measure" of environmental performance in water quality protection.

The OIG report also triggered a congressional inquiry by Rep. Bud Shuster, Chairman of the House Committee on Transportation and Infrastructure, and Sen. John Chafee, then-chairman of the Senate Environment and Public Works Committee. In response, last year EPA set a goal of reducing the expired permit backlog to no more than 20 percent by the end of 1999 and no more than 10 percent by 2001. But according to EPA records, nationwide there has been no reduction in expired permits for major water polluters in the two years since the OIG’s report.

In any event, those goals are relatively unambitious – expired permits should be an exception, not the rule. Effective water quality programs should not tolerate any continuing backlog for major permits. This standard may be ambitious in comparison to current practice, but improving water quality demands it.

Recommendations

A number of excuses are commonly given for the backlog of permits – lack of money, regulatory changes, an agency-wide attitude that permits are not a priority. The EPA and the Davis Administration should assess the validity of these issues and provide adequate resources for enforcing the permit system.

The problem is often compounded by industries who take advantage of resource-strapped bureaucrats, or who intentionally delay the process of permit renewal by submitting late or inordinately complex permit renewal applications. To ensure that polluters cooperate and do their fair share:

• The state and regional water boards must fine facilities that submit incomplete applications and assess higher fees on applications that require time-consuming re-review of materials.
• Facilities should be required to submit renewal applications no less than nine months prior to an expiration deadline. Higher fees should be imposed for late applications. Current rules allow for submissions up to the expiration date.
• Polluters with a history of late, incomplete or particularly complex permits should be required to submit their applications earlier than the nine-month time frame.
• Permits should not be continued just because the polluter has applied for a new permit. This back-door "administrative" permitting process does not allow for adequate public input, and it should not be used to mask serious problems with permitting delays.