The Capital of Annapolis reported recently on the alarmingly low penalties assessed by the Maryland Department of Environment for massive spills of raw sewage—containing a mix of untreated human, residential, agricultural, and industrial wastewater—into the state’s waters. This article supports one of the key findings from CPR’s report, Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short, released earlier this year. These low penalties, sometimes “about the same as a speeding ticket,” do not and cannot serve as the basis of an effective, deterrence-based enforcement program—precisely what is needed to compel compliance with the Clean Water Act and state water quality laws.
The article reports on raw sewage spills from publicly operated sewer management systems, using information obtained through a Maryland Public Information Act request. In 2009, the sewer system operated by the Anne Arundel County government spilled nearly 200,000 gallons of raw sewage into local streams, creeks, and rivers, which eventually flow into the Chesapeake Bay. For this, the county paid only $3,950 in fines, or slightly less than 2 cents per gallon of sewage. Currently, the maximum penalty is $5,000 per day of discharge violation, but some of the larger county governments are under consent decrees that specify penalty maximums. For example, Anne Arundel’s fees are $50 for 100 gallons or less of sewage and no more than $1,000 for more than 100,000 gallons.
These sewage spill fines and other water-related fines are deposited in Maryland’s Clean Water Fund. According to Maryland law, MDE is required to use the Fund for monitoring and protecting both surface waters and groundwater from pollution discharges, for sediment control, and for managing sewage sludge. MD Envt’l Code § 9-320. As the article reports, it’s no secret that the Fund is used to fill in MDE’s budget gaps or to stabilize the overall budget for the Water Management Administration (WMA) at MDE.
Jay Sakai, the head of the WMA, acknowledges in the article that fines like “$100 for an overflow doesn’t really incentivize anything,” but also defends the low penalties by noting that “at the end of the day, it’s the fixes, not the penalties” that will reduce sewage spills. While physical improvements to the sewage infrastructure and earlier detection of problems are undoubtedly the solutions to preventing sewage spills, without a motivating factor—like stiff penalties—there’s little incentive to implement those solutions. And looking at these penalties, it’s hard to consider them as anything other than the cost of doing business: in the absence of public scrutiny, it’s much less costly to pay $1,000 in fines than millions in upgrades.
There are generally two approaches to securing compliance with environmental laws: cooperative enforcement and deterrence-based enforcement. Cooperative enforcement relies on regulated facilities’ goodwill and understanding of the applicable laws to assure compliance. While this approach is highly favored by regulated facilities, few states have demonstrated improvements in compliance or environmental indicators based on this approach.
On the other hand, deterrence-based enforcement is premised on the basis of compliance costs that are less than the cost of noncompliance. Regulated entities are motivated to comply because to do otherwise would be detrimental. Deterrence-based enforcement consists for four primary components:
- Sufficient, consistent, and regular compliance monitoring to identify violators;
- Timely initiation of enforcement action against violators;
- A strong mandate that the violator come into compliance with the applicable laws and regulations; and
- Imposition of penalties that recover the economic benefit gained from violating the law and that provide a deterrent for future violations.
Knowing that you’ll get caught is a first step, but knowing you’ll get caught and you’ll face something more than a slap on the wrist makes all the difference in the world. In the Failing the Bay report, we recommended that MDE not settle for penalties that fail to deter dischargers from violating applicable laws and regulations. As an alternative incentive, MDE should leverage its enforcement authority to bring judicial actions against violators. MDE should also follow the legislative mandate for the use of Clean Water Funds, and to help them, the Maryland General Assembly should provide adequate and consistent funding for MDE so that the agency does not have to compensate for budget decreased by pilfering the Fund.