By Dan Davis trekkerphoto.com
States begs to differ on NYT series examining Clean Water Act violations
September 17, 2009 —
Colorado Department of Public Health and Environment Wednesday questioned the accuracy and methodology of a New York Times series on Clean Water Act violations after RealVail.com, the Colorado Independent and Colorado Ethics Watch on Tuesday questioned the state’s lack of responsiveness in the Times report.
Called “Toxic Waters: A series about the worsening pollution in American water and regulators’ response,” the Times story indicated the Colorado Department of Public Health and Environment failed to provide data requested as part of a story detailing federal water-quality violations and the lack subsequent enforcement.
Colorado Department of Public Health and Environment spokesman Mark Salley e-mailed this response Wednesday:
“Contrary to the New York Times Sept. 13 article about the nation’s clean water laws, the Water Quality Control Division at the Colorado Department of Public Health and Environment was among the states that provided information to the reporter about compliance with the state’s regulation of the Clean Water Act and the Safe Drinking Water Act.
“NYT reviewed Clean Water Act data available to them — and the public — on the U. S. EPA’s ECHO website, but the Department was not privy to how the Times queried the database. At the time of the NYT’s inquiry, we advised the Times that the EPA website was not providing accurate enforcement data. EPA has subsequently addressed the problem with ECHO data queries.
“The Department provided correct enforcement and penalty information to the reporter in May and June. However, the reporter did not incorporate the information into the final article, and the “Toxic Waters” website the New York Times created acknowledges that State data are not included. A quick look at the site shows obvious errors.
“For example – the Times’ database shows that the waste water treatment plant serving the Town of Del Norte was last inspected on August 9, 1983. In fact, this facility was inspected on July 28, 2004 and October 17, 2007. Information related to these inspections is available in the EPA’s database; therefore, it is difficult to know the source of the data used by the Times. This is not an isolated incident as all of the facilities on the Times list have been inspected within the last five to six years, many of them several times in that period.
“Also, the Times’ article does not distinguish the seriousness of the identified violations. Colorado responds to non-compliance through well established escalation criteria designed to ensure that significant non-compliance is addressed within a reasonable time frame. Many of the violations identified in the Times’ article were for violations that were subsequently resolved through permit modifications or amendments and therefore negated the need for any formal enforcement.
“In Colorado, penalties are typically assessed in a secondary phase of the enforcement process, once a clear path to compliance has been established. This is done in order to focus a facility’s attention on a prompt return to compliance, rather than contesting the magnitude of its possible penalty.
“The Times’ article fails to recognize that upon the detection of non-compliance, resolution may take several months (or years) due to the time needed to perform root cause analyses, implement capital improvement engineering design and construction schedules and the unique constraints of financing wastewater treatment improvements, especially those related to government agencies or private nonprofit entities.
“These factors are all exacerbated by the fact that most dischargers cannot simply “shut the discharge off” until improvements are made.
“A critical aspect overlooked and not addressed by the Times’ story is how the regulated community reacted to its non-compliance. An important point to keep in mind is that it’s not just the fact that non-compliance occurred, but rather how the non-compliance was resolved or (most importantly) if indeed it was resolved.
“The Water Quality Control Division at the Colorado Department of Public Health and Environment has many duties, including administering the state water quality and drinking water programs, which includes the regulation of discharges of pollutants into the state’s surface and ground waters; the regulatory oversight of the public drinking water program; the monitoring and assessment of surface and ground waters; and the review and approval of site location and design of domestic wastewater treatment works.
“Overall, 97 percent of Colorado residents who drink water from public water systems have water that meets all health based standards. That’s well above the EPA target of 90 percent and above the national average.”
And Ethics Watch on Thursday posted this response on its website:
"After learning that the Colorado Department of Public Health and Environment (CDHPE) reportedly provided evasive, nonresponsive information about its enforcement of Clean Water Act standards, Ethics Watch called on the Department to provide prompt, accurate public information.
"On Sept. 16, Ethics Watch submitted an open records request to CDHPE asking for all documents reflecting a final determination by the Department finding violations of the Clean Water Act and any associated penalties. Within hours, CDHPE staff released to Ethics Watch documents detailing its enforcement and penalty history since 2004. By its record-time responsiveness to the public, CDHPE staff have demonstrated a commitment to transparency."
Go to the Ethics Watch website to see the requested information.
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