EPA Audit Reveals Big Problems in Wyoming's Water Pollution Permit Program

In November, the Environmental Protection Agency (EPA) issued an audit of the Wyoming Department of Environmental Quality's National Pollutant Discharge Elimination System (NPDES) program. This is probably the biggest single regulatory program of the department's Water Quality Division Ð and for good reason. Whether the pollution source is industry, municipalities or agriculture, it's the job of the Wyoming Department of Environmental Quality (WDEQ) to properly set effluent limits to ensure that Wyomingites have clean water to recreate in and enjoy.

The EPA noted many deficiencies in Wyoming's NPDES program. Perhaps most significant is that WDEQ is not prepared to keep pace with the coalbed methane development boom. According to the EPA, over the next four years, there will be more than 500 coalbed methane discharge permit applications (new or renewing) per year that must be approved by the WDEQ. The EPA's assessment is that Òstate resources do not appear adequateÓ for this onslaught of permit applications.

The EPA audit noted the following other deficiencies:

• WDEQ did not follow up on citizen complaints about water pollution and coalbed methane water discharge problems.
• WDEQ administrative files are incomplete. Missing items range from permit applications to inspection reports and correspondence.
• WDEQ has no checklist for issuing non-coalbed methane permits.
• In three of five cases in which WDEQ had to demonstrate a beneficial use of coalbed methane discharge water, it neither did so nor required the drilling company to do so.
• There was a significant backlog of Discharge Monitoring Report (DMR) entries into the state database, rendering the database out of date and unreliable.
• WDEQ does not follow an Enforcement Management System (EMS), even though it claims that it has been using a draft EMS since 1998. The EPA audit revealed that some violations are not addressed at all.
• Copies of enforcement documents, such as letters of violation, are often not sent to files.
• For inspections, WDEQ now uses a one-page checklist that, when completed, contains minimal information compared to past inspection reports.
• WDEQ does not evaluate plant operations and maintenance as part of its inspections, even though, in the past, WDEQ's inspections included coverage of these aspects of a permittee's operations.
• Inspection reports do not require a response from the permittee when deficiencies are noted. Instead, WDEQ is content to wait for the next inspection to follow up on deficiencies, even though a considerable amount of time often elapses between inspections.
• WDEQ does not track permit compliance schedules in a Permit Compliance System (PCS) database.
• The State of Wyoming filed only five water-pollution enforcement actions in FY 2000, and collected no penalty in four of them.
• In determining a penalty amount, the State makes no attempt to determine economic benefit derived from non-compliance, and makes no calculation of an appropriate penalty based upon the gravity of the offense. In fact, the WDEQ does not even attempt to obtain the information from the permittee needed to make these calculations.

The EPA's decision to perform this audit came on the heels of a Petition for Corrective Action or Withdrawal of the State of Wyoming's Authority to Administer the Clean Water Act's NPDES Program filed by WOC and the Powder River Basin Resource Council last March.

In early January, WDEQ sent the EPA a 10-page response to its audit, disagreeing with many of the agency's findings. Filed nearly three weeks after its due date, the response claimed that WDEQ does follow up on citizen complaints "that appear to be legitimate."

WDEQ is required to respond to public comments regarding water discharge permit applications when it issues NPDES permits. But the department often responds to comments well after the date on which it issues a permit. And even then, its response often neglects to mention the permit issuance date. In one instance, WOC commented on a permit and was notified 58 days after it was issued - just two days before the 60-day deadline for filing an appeal. Such maneuvers make it virtually impossible for citizens and conservation groups to appeal a permit before it is issued.

Gary Beach, director of WDEQ's Water Quality Division, also disputed the EPA's charge that his agency does not take adequate action when permit conditions have been violated.

"Lack of clear documentation does not necessarily imply that these processes are not conducted," Beach wrote. Even though he was given the opportunity, Beach apparently did not explain the division's lack of documentation.

Stephen Tuber, Director of the EPA's Region VIII Water Program said that information from the audit and WDEQ's response would play a major role in the EPA's decision on the conservation groups' petition to withdraw Wyoming's authority to administer the NPDES program.

The audit has generated at least one positive change: Governor Geringer has asked the 2002 state legislature to provide WDEQ with a 30% increase in funding. Better late than never.