Draft Chesapeake Bay Compliance and Enforcement Strategy
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Draft Chesapeake Bay Compliance and Enforcement Strategy
I. Introduction
The Chesapeake Bay (Bay) is North America's largest and most biologically diverse estuary,
home to more than 3,700 species of plants and animals. It is about 200 miles long, contains
more than 11,000 miles of tidal shoreline, and is fed by 100,000 creeks, streams, and rivers. The
watershed spreads over 64,000 square miles and includes parts of six states—Delaware,
Maryland, New York, Pennsylvania, Virginia, and West Virginia—and the entire District of
Columbia. As of 2007, approximately 17 million people lived in the Bay watershed. The Bay
provides significant economic and recreational benefits, estimated to exceed $33 billion
annually, to the watershed's population.1 The Bay's waters are threatened by pollution from a
variety of sources. To address noncompliance with environmental laws and associated
environmental impacts to this watershed, the U.S. Environmental Protection agency (EPA) has
developed this Chesapeake Bay Compliance and Enforcement Strategy (Strategy), which guides
the use of EPA's compliance and enforcement tools to target sources of pollution impairing the
Bay watershed.
a.	Current Health of the Bay
Multiple federal, state, and local entities have been working to improve the health of the Bay.
While total pollution levels have declined since 1985, most of the Bay's waters are degraded and
are incapable of fully supporting fishing, crabbing, or recreational activities. Algal blooms fed by
nutrient pollution block sunlight from reaching underwater Bay grasses and lead to low oxygen
levels in the water. Suspended sediment from urban development, agricultural lands, and some
natural sources is carried into the Bay and clouds its waters. Portions of the Bay and its tidal
tributaries are contaminated with chemical pollutants that can be found in fish tissue. The Bay's
critical habitats and food web are at risk. Nutrient and sediment runoff have harmed Bay grasses
and bottom habitat, while disproportionate algae growth has pushed the Bay food web out of
balance. The Bay's habitats and lower food web (benthic and plankton communities) are
functioning at 45 percent of desired levels. Many of the Bay's fish and shellfish populations are
below historical levels. The blue crab population continues to be low, and the stock is not
rebuilding; oyster restoration efforts are hampered by disease, and the stock remains at low
levels; American shad continues at depressed levels; the menhaden population in the Bay is low
despite healthy populations along the Atlantic coast; and striped bass are plentiful, but there is
concern about disease and nutrition. The Bay's fish and shellfish populations are at 48 percent
of desired levels. Fish kills occur in a number of rivers leading to the Bay.2
b.	Significant Pollutants and Sources
The greatest pollution threats to the Bay are from nutrients (nitrogen and phosphorus) and
sediment. Such pollutants come from many sources, including agricultural operations,
wastewater treatment facilities, urban stormwater runoff, and air deposition from power plants
and cars. Agricultural sources contribute the largest nutrient and sediment pollution in the
watershed, accounting for approximately 38 percent of nitrogen loading, 45 percent of
phosphorus loading, and 60 percent of the sediment loading. About one-half of the nitrogen
from agriculture is from animal manure. Municipal and industrial wastewater treatment
1	EPA, Office of Inspector Gen., Rep. No. 08-P-0199, EPA Needs to Better Report Chesapeake Bay Challenges: A Summary Report 3
(July 14, 2008), at http://www.epa.eov/oie/reports/2008/20080714-08-P-0199.pdf.
2	Chesapeake Bay Program, Bay Barometer: A Health and Restoration Assessment of the Chsapeake Bay and Watershed in 2008,
CBP/TRS-293-09, EPA-903-R-09-001, (March 2009), at http://www.chesapeakebav.net/content/publications/cbp 34915.pdf.
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facilities account for approximately 20 percent of the nutrient loading to the Bay. Urban and
suburban stormwater runoff accounts for approximately 10 percent of the nitrogen loading,
31 percent of phosphorous loading, and 19 percent of sediment loading. Population growth and
development and the rapid increase in the amount of impervious surfaces have caused
stormwater pollution to be a growing concern.
Air pollution contributes approximately 34 percent of the total nitrogen loading to the Bay. 3
Modeling estimates based on projected emissions for 2020 indicate that the relative
contributions of different source sectors of airborne nitrogen oxide (N0X) emissions to oxidized
nitrogen deposition to the Bay watershed will be 26 percent from on-road mobile sources;
21 percent from non-road/marine/construction mobile sources; 17 percent from industrial
sources; 15 percent from power plants; 12 percent from residential and commercial sources; and
9 percent from other sources."1 Figure A-i shows relative responsibility for sector loadings to the
Bay.
Phosphorus
Nitrogen
Sediment
Agriciilture-
Chemkal Fertilizer
15%
Urban/Suburban
Runoff & In-stream
Sediment
19%
Urban/Suburban
Runoff & In-stream
Sediment
31%
Agriculture
Manure
17%
Agriculture
60%
Atmospheric
Deposition
Watershed-
Mobile, Utilities,
Industries
20%
Atmospheric
Deposition to
Atmospheric
Watershed-
Deposition to
Agricultural
Atmospheric
Tidal Waters-
Deposition to
All Sources
Natural Sources
Note: Does not include loads from tidal shoreline erosion or the ocean. Urban/suburban runoff loads due to atmospheric deposition are included
under atmospheric deposition loads. Wastewater loads are based on measured discharges; other loads are based on an average hydrology year
using the Chesapeake Bay Program Airshed Model and Watershed Model Phase 4.3.
Figure A-l. Relative responsibility for pollution loads to the Bay.
Other pollutants of concern in the Bay include hazardous wastes, like PCBs, polycyclic aromatic
hydrocarbins (PAHs), and metals in river sediment. The contaminants can leach into the
groundwater or discharge directly into the Bay from different sources in the watershed and
airshed, such as industrial facilities, hazardous waste sites, landfills, urban stormwater runoff,
and mobile and stationary air sources.
3	Chesapeake Bay Program, Questions and Answers from the Senate Environment and Public Works Committee Hearing on the
Chesapeake Bay on April 20, 2009 (June 3, 2009).
4	Robin Dennis, Report on Relative Responsibility Assessment of Sectors and States: Oxidized-Nitrogen Deposition in 2020 (final
numbers), Chesapeake Bay Modeling Subcommittee Meeting, Annapolis, MD. (April 8, 2008).
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11. Compliance and Enforcement Role
In the Bay watershed, only a portion of the nutrient and sediment pollution is regulated under
the Clean Water Act (CWA) or the Clean Air Act (CAA). According to estimates by EPA's
Chesapeake Bay Program Office, at least 49 percent of total nitrogen, 35 percent of total
phosphorus, and 4 percent of total sediment is subject to federal regulation. The best modeling
indicates that nitrogen pollution to the Chesapeake Bay must be reduced by 30 percent, and
phosphorus pollution must be reduced by 8 percent to meet water quality standards. Achieving
that level of reduction will require significant and sustained reductions by all source categories,
including agriculture. Yet, even full compliance with existing regulations will not result in the
necessary pollution reductions to restore the health of the Bay.
Agricultural sources and urban stormwater runoff account for about half of the nitrogen and
three-quarters of the phosphorus pollution to the Bay. Air deposition of nitrogen from
stationary and mobile sources accounts for about one-third of the nitrogen pollution. EPA
regulates pollution discharges from some of these sources, including concentrated animal
feeding operations (CAFOs) and municipal separate storm sewer systems (MS4S), through the
CWA National Pollutant Discharge Elimination System (NPDES) permitting program and
regulates other sources through the CAA. Many sources, however, are not subject to federal
environmental regulations, including row crop agricultural operations and suburban
stormwater runoff outside specific municipal stormwater sewersheds. In addition to being
hampered by the limited universe of regulated pollution sources, EPA's ability to take
enforcement action in a number of key sectors is further compromised by terms of existing
permits that lack specificity. For example, MS4S are not typical end-of-pipe permits with clearly
defined numeric effluent limits. Instead, permit conditions often emphasize actions that should
be taken to achieve certain outcomes and are frequently written with imprecise provisions.
Without expanded regulatory coverage and stronger permit requirements, compliance and
enforcement tools will not fix the Bay's pollution problems.
The magnitude of efforts needed to achieve Bay water quality standards is significant and
requires a new generation of federal and state regulatory tools and actions. These could include
the following: (1) finalizing total maximum daily loads (TMDLs) throughout the Bay watershed;
(2)	expanding the definition of CAFO to encompass smaller animal feeding operations (AFOs);
(3)	defining more stringent permit conditions related to the land application of animal manure;
(4)	expanding NPDES stormwater regulations to apply to high-growth, urban/suburban areas;
(5)	creating more stringent permit conditions including standards for discharges of stormwater
from new/redevelopment projects and retrofit criteria for large facilities with impervious
surfaces such as shopping malls, roads, and parking lots; and (6) ensuring adequate, enforceable
NPDES permits for MS4S.
Many of these programmatic and regulatory fixes could require additional time to develop and
implement before pollutant reductions needed for a healthy Chesapeake Bay are realized. In the
meantime, some enforcement tools and actions can be used now. For example, under existing
statutory enforcement or endangerment authorities (or both), as well as permitting regulations
(that would inform remedies), EPA has tools to do, among other things, the following:
•	Designate AFOs as CAFOs, making them subject to permitting requirements
•	Audit, inspect, and provide compliance assistance to (or take enforcement against) MS4S
to improve best management practices and stormwater management plans
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•	Enforce stormwater requirements at large construction sites to reduce sediment
•	Enforce new source review, NSPS, and state implementation plan (SIP) requirements at
stationary sources and mobile source regulations at port facilities, warehouses, and
construction sites to reduce NOx emissions
•	Monitor compliance with major milestones for installing controls at wastewater
treatment plants and take appropriate enforcement
•	Achieve pollutant reductions through strategic use of endangerment authorities
•	Enhance effectiveness in overseeing state enforcement programs and initiate supportive
federal enforcement actions, as appropriate
•	Seek to ensure that all CAFOs that discharge or propose to discharge obtain NPDES
permit coverage
•	With other EPA, state, and federal partners, engage in education and outreach to the
CAFO/AFO community about statutory and regulatory requirements
•	Pursue enforcement-led cleanup activities at hazardous-waste sites identified as
contributing to specific impairments to water quality in the Bay
Given available environmental enforcement authorities, EPA's strategic use of compliance and
enforcement tools likely can assure only modest nutrient and sediment pollution reductions to
the Bay acting alone. However, EPA believes that strategic enforcement efforts aimed at key
regulated sectors and pollutants affecting the Bay will raise visibility and awareness of the need
for a rigorous commitment to strong compliance, stewardship, and accountability by the
regulated community regarding the health of the nation's largest estuary. Compliance and
enforcement efforts will continue into the future after EPA develops new environmental
requirements that expand coverage of existing permitting programs and establish new,
enhanced standards of performance for preventing pollutants from entering the Bay's
watershed.
While EPA will continue to play an important enforcement role in the Bay states, the states
themselves are the critical cops on the beat, conducting the bulk of environmental inspections
and compliance assistance. As such, EPA would closely plan and coordinate compliance and
enforcement efforts with its state (and commonwealth) partners around the Bay to ensure
robust watershed-wide compliance and enforcement programs that establish clear expectations
for the public and the regulated community regarding compliance.5 Through our coordinated
efforts, EPA and state compliance and enforcement programs will strengthen efforts to ensure
compliance. That complementary effort can identify innovative opportunities for using federal
and state enforcement tools to promote sound management practices to reduce pollution to the
Bay. If successful, such pilot approaches could also be used in other estuaries facing similar
pollution assaults (e.g., Puget Sound, San Francisco Bay).
To enhance transparency, EPA is developing a Chesapeake Bay compliance and enforcement
Web site where this Strategy and other relevant information related to compliance and
enforcement will be posted, including the compliance status of facilities in the Bay watershed.
The Web site is at www.epa.gov/compliance/civil/initiatives/chesapeakebay.html.
5 An EPA/state Planning, Communication, and Oversight plan will be developed pursuant to this Strategy.
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III. Strategy
a.	Overview
The Strategy is a multiyear, multistate, and multimedia strategy designed to augment and
enhance existing work to identify and address violations of federal environmental laws resulting
in nutrient and sediment pollution in targeted impaired watersheds. This Strategy provides a
focused and ambitious plan for addressing pollution sources, both in the Bay's watershed and
the airshed. The Strategy identifies the industrial, municipal, and agricultural sources releasing
significant amounts of nitrogen, phosphorus, sediment, and other pollutants to impaired
watersheds in the Bay in excess of amounts allowed by the CWA and the CAA and other
applicable environmental laws.
b.	Impaired Watershed Approach
The Strategy examines watersheds and identifies nutrient and sediment impaired segments of
those watersheds, as well as significant regulated sources discharging these pollutants and other
pollutants with potential noncompliance problems. Regulated sources in noncompliance that
are contributing to impairment of the identified watersheds will be systematically addressed in
accordance with the Strategy. The Strategy is designed around criteria that focus attention at the
watershed level including criteria that consider the following:
•	The extent of impairments from pollutants of concern
•	The degree of excess nutrient and sediment loads
•	The number and types of regulated sources located in the watershed segment (or
depositing pollutants to that watershed for some air sources)
•	The water quality rating (good, threatened, or impaired)
•	The number of primary contact recreation beaches
•	The number of shellfish beds/beaches closed
•	Fish consumption advisories
•	The magnitude of wetlands losses
•	The prevalence of minority populations, populations disproportionately below the
poverty line, or sensitive populations such as subsistence fishermen
•	Urban rivers
•	Site cleanup opportunities
The Strategy analyzes existing data from a variety of sources to target key regulated sectors
identified as contributing significant amounts of nitrogen, phosphorous, sediment loadings, and
other pollutants to impaired watersheds in the Bay when in noncompliance with current
applicable environmental regulations. For each of the sectors, EPA will examine specific
watersheds impaired by nitrogen, phosphorous, sediment, and other pollutants, as well as the
regulated sources in those watersheds, and the sources' compliance status. The key sectors are
as follows:
•	CAFOs
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•	Municipal and industrial wastewater facilities
•	Stormwater NPDES point sources, including MS4S and stormwater discharges from
construction sites and other regulated industrial facilities
•	Air deposition sources of nitrogen regulated under the CAA, including power plants
In addition, the Strategy identifies appropriate opportunities for compliance and enforcement
activities related to the CWA section 404 program regulating dredge and fill operations, federal
facilities, and Superfund sites, including remedial action and removal sites and Resource
Conservation and Recovery Act (RCRA) corrective action facilities.
EPA will examine the compliance records for facilities in the key sectors and which are in
impaired watersheds including the following:
•	The pattern and seriousness of noncompliance and whether the source is considered a
high-priority violator
•	The occurrence of un-permitted discharges
•	Whether multiple facilities or sectors are operating under one owner/operator and in
more than one state
•	The volume and nature of the source's discharges
EPA will conduct further investigations and inspections of targeted facilities in selected
watersheds; pursue appropriate enforcement actions to ensure compliance; and estimate
pollutant-loading reductions for nitrogen, phosphorous, and sediment related to those
completed actions. Under the Strategy, EPA will review the ongoing water and air protection
work in the Bay watershed, much of which addresses some of the most significant discharges of
pollutants to the Bay, and will focus on sources that have not yet been addressed consistent with
this Strategy. To leverage EPA and states' limited compliance and enforcement resources, EPA
will coordinate closely with the states in the Bay watershed on targeting and pursuing the most
serious contributors to Bay impairment. Specific projections of enforcement and compliance
activities will be developed, monitored, and readjusted as the work goes forward.
Finally, EPA will examine opportunities for the use of imminent and substantial endangerment
authorities, including CWA section 504, section 1431 of the Safe Drinking Water Act, section
7003 of RCRA, section 106 of CERCLA, and section 303 of the CAA to address significant
pollution problems affecting the Bay.
c. Sector Strategies
i. Concentrated Animal Feeding Operations
a. Overview
EPA will enhance efforts to protect the Chesapeake Bay by prescribing actions calculated to
increase CAFOs' regulatory compliance and reduce their nutrient loads to the Bay. EPA will
increase its visibility in the watershed by targeting enforcement actions and remedies at facilities
located in geographic hot spots impaired for nutrients and sediment that are critical to the
restoration of the Bay.
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b.	Animal Agriculture
Agriculture is the single largest source of nutrients to the Chesapeake Bay. Agricultural
operations deliver nitrogen and phosphorus to the Bay accounting for 38 percent of nitrogen
and 45 percent of phosphorus.6 17 percent of the nitrogen and 26 percent of phosphorus from
agriculture is from animal manure, and an additional 6 percent of nitrogen delivered to the Bay
comes from livestock and fertilized soil emissions. About one-third of animal manure is
regulated (contributing 6 percent of nitrogen and 8 percent of phosphorus delivered to the Bay).
The remaining nitrogen and phosphorus from agriculture is from non-animal agriculture (e.g.,
rowcrops) and smaller animal operations or emissions which are not subject to the regulatory
restrictions imposed on CAFOs. Thus, EPA can only address a small portion of nutrients from
animal agriculture pursuant to existing regulatory authority.
Three areas represent the greatest contributions of manure-based agricultural nutrient loads to
the Bay: (1) Delmarva Peninsula: Delaware, and the Eastern Shores of Maryland and Virginia;
poultry—broiler chickens—is the dominant industry sector; (2) South-central Pennsylvania:
Susquehanna River watershed/Lancaster and York counties; dairy is the dominant industry
sector; to a lesser extent, swine and poultry (broiler and egg-laying chickens) also operate in this
priority area; and (3) Shenandoah Valley: Virginia and West Virginia; poultry—broiler chickens
and turkeys—is the dominant industry sector; to a lesser extent, small- and medium-dairies and
swine facilities also operate in this priority area. The watersheds in those areas suffer from
significant nutrient imbalances and nutrient-related, local water quality impairments. Densely
populated animal agriculture operations in these areas cause the highest agricultural nutrient
loads to the Bay by comparison to other areas. Inconsistent implementation of sound nutrient
management practices has resulted in manure over-application and nutrient loading.
c.	Goal
The goal is to reduce nutrient loads to the Bay by addressing noncompliance and by focusing
compliance and enforcement activities on facilities in three key areas—the Delmarva Peninsula,
South-central Pennsylvania, and the Shenandoah Valley.
To achieve this goal EPA is preparing to (1) work with states to target implementation of the
CAFO program to minimize CAFO nutrient effects on the Bay, specifically to investigate or
inspect facilities that pose the most risk to the Bay watershed and take enforcement actions to
compel compliance; (2) maximize the extent to which current state CAFO programs are
achieving their intended water quality benefits by working with states to expand the permitted
facility universe, issue sufficiently stringent permits, which should at a minimum require that
nutrient management plans be based on existing soil saturation levels, and build sustainable
programs for compliance monitoring and enforcement (e.g., undertake universe-identification
and information-gathering activities, conduct joint and oversight inspections with state partners
to ensure appropriate implementation of federal standards); and (3) seek to address CAFO air
emissions and develop appropriate remedies to reduce emissions and their adverse water
quality effect on the Bay.
Working with its state partners, EPA will address identified target facilities in the three key
areas while implementing this Strategy. Address would mean that either EPA or the relevant
state has inspected or investigated a facility and determined that the facility is in compliance, or
that EPA or the relevant state initiates an appropriate enforcement action to compel compliance
6 This estimate assumes that these sources are in full compliance with their current NPDES permit requirements.
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or abate endangerments to drinking water sources or surface water. In general, target facilities will
be those facilities that pose a high risk to the Chesapeake Bay watershed.
ii. Wastewater (Municipal and Industrial Wastewater)
a.	Overview
Wastewater treatment facilities deliver large loads of nitrogen and phosphorous to the Bay,
accounting for approximately 20 percent of nitrogen and 21 percent of phosphorus entering the
watershed. Due largely to previous treatment plant upgrades, nitrogen and phosphorus loads
discharged by significant municipal wastewater treatment facilities have decreased by 40
percent and 65 percent, respectively, since 1985. Most of the municipal and industrial
wastewater treatment plants that remain significant sources of nutrients in the Bay watershed
will require additional treatment upgrades and are on enforceable schedules to meet more
stringent annual nutrient limits for total nitrogen and total phosphorus. EPA and Bay states will
monitor compliance with major milestones for installing the required controls and would target
facilities in violation of their schedules for appropriate enforcement to ensure that these
nutrient control upgrades proceed according to permit schedules.
b.	Goal
EPA is initially focusing on significant wastewater facilities that are under permit schedules for
upgrading treatment, with the goal of addressing all facilities that are in significant
noncompliance with their schedules. EPA will also monitor those wastewater treatment facilities
that have monthly average nutrient limits, with the goal of addressing the most significant
sources of excess nutrients. Once a treatment facility is upgraded as required by its NPDES
permit and new annual limits for total nitrogen and total phosphorous become effective, under
the Strategy, EPA and states would then focus on facilities that discharge excess nutrients as a
result of noncompliance with the more stringent NPDES permit limits. EPA is working with the
Bay states to address noncompliant facilities that are failing to comply with nutrient effluent
limits and significantly affecting Bay water quality, including all facilities with violations that
meet the criteria for significant noncompliance or SNC. In the context of these goals, address
would mean that either EPA or the relevant state initiates an appropriate enforcement action in
response to identified noncompliance.
To achieve these goals, EPA is working with states to effectively implement the NPDES program,
using the full breadth of EPA and state compliance and enforcement tools. This coordination
includes (1) continuing EPA's oversight of authorized state NPDES enforcement programs;
(2)	working closely with the Bay states to ensure timely and appropriate enforcement action is
initiated in response to identified SNC violations for compliance schedules and permit limits;
(3)	working closely with the Bay states to identify and initiate enforcement action in response to
other permit violations that are not identified as SNC but that have the potential to impair water
quality; and (4) providing technical and legal assistance to the states where needed. As noted
earlier, the Bay states conduct the bulk of the inspections and NPDES enforcement actions
under their authorized NPDES programs. Under the Strategy, EPA is developing and would
initiate enforcement actions where strategically appropriate, for example, where violators
operate in more than one state, where high penalties are appropriate or the required injunctive
relief is extensive, or where a higher profile enforcement action might be beneficial.
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iii. Stormwater
a. Overview
EPA will address discharges from regulated MS4S and stormwater discharges from construction
sites and other priority regulated industrial facilities. That approach will enhance overall efforts
to protect the Chesapeake Bay by focusing enforcement actions and remedies—including
appropriate compliance assistance—on noncompliant MS4S, construction site operators, and
priority industrial facilities in geographic hot spots that are critical to the Bay's restoration.
Inspection and audit findings within MS4 boundaries will provide leverage for improving MS4
programs, as well as improving oversight and enforcement by other local entities responsible for
inspecting construction sites. Inspection findings at construction sites and industrial facilities
outside MS4 boundaries could provide information to support the designation of certain
urban/suburban separate storm sewer systems as MS4S, thereby bringing them into the
regulated program.
Urban and suburban stormwater discharges deliver a significant load of nutrients and sediment
to the Bay accounting for approximately 10 percent of nitrogen, 31 percent of phosphorus, and
19 percent of sediment. However, most of the nutrients and sediment discharged to the Bay in
urban/suburban stormwater runoff are discharged through stormwater outfalls that are not in
designated MS4 areas or represent pre-1986 development and, thus, not specifically regulated
by the NPDES program. Only 2 percent of the nitrogen, 6 percent of the phosphorus, and
4 percent of sediment delivered to the Bay through urban/suburban stormwater discharge
outfalls are regulated by EPA and the Bay states under the NPDES MS4 program.
The NPDES permitting program requires designated MS4S to develop and implement a
stormwater management program to minimize the discharge of pollutants through MS4S.
Components of an adequate stormwater management plan include a program to oversee
construction activities within the MS4's boundaries. Large and medium MS4 programs must
also include a program for overseeing industrial and commercial facilities that have a significant
effect on water quality. In the Bay watershed, approximately 450 MS4S exist. Those MS4S are
primarily in Maryland, Virginia, and Pennsylvania. When the boundaries of those MS4S are
overlain with the maps of watersheds impaired by stormwater runoff for nitrogen and
phosphorous, the MS4S along the I-95 corridor in these states stand out as appropriate areas for
further compliance monitoring and enforcement efforts. EPA's Chesapeake Bay Program Office
is evaluating additional data, which will allow EPA to identify priority watersheds with greater
precision and specificity.
EPA does not have national data on MS4 noncompliance. Much of the information regarding
compliance comes from audits and inspections and discussions with the states concerning
problems identified in the field. While results have been mixed across EPA Regions, many
Regions have found deficient municipal stormwater management programs, particularly in
regard to MS4 stormwater construction oversight programs and the MS4's ability to assess the
adequacy of stormwater management practices in protecting water quality standards.
Permit quality has been a continuing concern for MS4 enforcement efforts. For example, some
NPDES permits for MS4S do not contain adequate and/or clear and enforceable performance
standards for developing and implementing municipal stormwater programs. Poorly written
permits make it difficult to use EPA or state CWA enforcement personnel to identify and require
necessary improvements to remedy deficient programs. EPA's Office of Enforcement and
Compliance Assurance has provided EPA's Office of Water with feedback concerning permit
quality problems observed nationwide related to enforceability. The Office of Water has initiated
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efforts to improve permit quality and some of the larger MS4S are now on their second or third
permit cycle with successively improved permits.
Construction sites and industrial facilities are both within MS4S and outside MS4 boundaries.
Activities at industrial facilities, such as industrial processes and material handling and storage,
are often exposed to precipitation. As stormwater or snowmelt discharges come into contact
with such activities or with the raw and processed materials associated with the activities,
pollutants are transported to nearby storm drains or directly to surface waters. Pollutants in
stormwater coming into contact with industrial activities and materials likely include total
suspended solids, oil and grease, and chemical and/or biological oxygen demand. Concrete and
asphalt operations, such as ready-mix concrete facilities, and mineral extraction have been
identified as industrial stormwater potential sectors of concern in the Bay.
The construction sector is one of the 10 industrial sectors regulated under the NPDES program
for industrial stormwater discharges. Clearing, grubbing, grading, and other construction
activities disturb and expose the soil surfaces, allowing significant amounts of sediment
transport through stormwater runoff into storm drains and other discharge points into
waterbodies. In addition, the loss of vegetation, soil compaction, and increases in the amount of
impervious surfaces result in increased stormwater flow amounts and velocity. Such increases,
in turn, contribute to streambed and bank scour and erosion, channel widening, and stream
bank undercutting, which increase the amount of sediment discharged to the Bay.
Much of the recent residential construction in the greater Chesapeake Bay watershed has
occurred in and around the population centers of York, Pennsylvania; Baltimore, Maryland;
Washington, D.C.; Wilmington, Delaware; and Richmond, Virginia. Data provided by Bay states
under CWA section 303(d) suggests that waterbodies impaired by sediment in the Chesapeake
Bay watershed are concentrated in these areas as well. As such, the primary priority watersheds
for construction stormwater discharges are those watersheds where waterbodies are both
impaired for sediment and current data projects high population growth rates. These
watersheds form the basis for targeting efforts using construction permit information, state
transportation plans, EPA audits of state programs, citizen tips, and other relevant sources of
information. Additional watersheds might be added to the priority watershed list on the basis of
factors such as high population growth rates (where receiving waters are not yet identified as
impaired for sediments), severe impairment (where projected population is not particularly
high), or the presence of large construction projects or industrial sites with the potential to
discharge large quantities of pollutants in stormwater discharges. The priority watershed list
will also be the basis for identifying major industrial sites in the priority industrial sectors for
compliance inspections.
b. Goal
EPA is preparing to focus its stormwater noncompliance enforcement efforts on MS4S,
construction activity, and priority industrial sectors within the geographic priority areas. EPA
and the Bay states would address all MS4S with deficiencies that are clear violations and that are
within the identified geographic priority areas, and where program deficiencies could
significantly affect Bay water quality. Where vague and poorly written or inadequate permits
hamper the use of enforcement tools to address potential deficiencies, EPA plans to provide
compliance assistance to encourage MS4S to improve municipal stormwater management plans
and coordinate with permitting staff to improve and strengthen subsequent permits. The
primary goals associated with construction sites and other priority industrial sectors are
generally dependent on whether these sites and facilities are within or outside designated MS4
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boundaries. The primary goals are (1) to gather data to support designating unregulated priority
urban/suburban separate storm sewer systems for NPDES coverage; (2) to improve MS4's
municipal stormwater management programs and/or encourage stronger oversight and
enforcement of applicable requirements for construction sites by other local authorities such as
soil conservation districts; and (3) to increase the visibility and showcase the importance of
strong, effective MS4 stormwater management programs in improving water quality. EPA will
also continue to inspect and take appropriate enforcement action against discharges from
noncompliant construction site operations and other industrial facilities in identified priority
watersheds.
iv. Air Deposition
a.	Overview
EPA will protect the Chesapeake Bay by targeting enforcement actions at sources in the
Chesapeake Bay airshed, which includes Pennsylvania, West Virginia, Virginia, Maryland,
Delaware, New York, North Carolina, South Carolina, Tennessee, Kentucky, Indiana, Michigan,
Ohio, New Jersey, and the District of Columbia. EPA will focus on achieving reductions in NOx
to reduce nitrogen loading to the Bay.
Enforcement actions designed to reduce nitrogen deposition to the Chesapeake Bay could also
result in substantial reductions in sulfur dioxide, mercury, and other pollutants if the Agency
and its state partners are successful in obtaining binding commitments from utilities and other
sources to install pollution-control technologies. Such additional pollution reductions, in turn,
could yield significant public health and welfare benefits, including reduced respiratory
problems and fewer fish consumption advisories.
Nitrogen emissions from sources within the Chesapeake Bay airshed contribute approximately
75 percent of the nitrogen deposition to the Bay watershed. The remaining 25 percent of the
nitrogen deposition is from long-range transport of emissions from sources outside the airshed,
including emissions from portions of southeastern Canada. Of the inorganic nitrogen deposited
to the Chesapeake Bay watershed from air emission sources, approximately 67 percent is from
air emissions of NOx. The remaining 33 percent is from emissions of ammonia (NH3). The
contributions from any single facility in the long-range emissions transport category are unlikely
to be significant. Sources of NOx include electric generating units, other industrial stationary
sources, on- and off-road mobile sources (cars, trucks, ships, tractors), lightning, and soil.
Sources of ammonia include AFOs, fertilized fields, mobile sources, and industrial stationary
sources.
b.	Goal
The goal is to reduce nitrogen air deposition by addressing noncompliance with existing air
pollution control requirements. Coal-fired power plants, acid, glass, and cement manufacturing
are already national enforcement priorities for the Agency because of the substantial emissions
of NOx and other pollutants from those industries. Since 1999 EPA has pursued a coordinated,
integrated compliance and enforcement strategy to address CAANew Source Review
compliance issues at the nation's coal-fired power plants. Many of these cases have already
resulted in settlements that will reduce nitrogen deposition to the Bay, such as the settlement
with American Electric Power, which when fully phased in, will reduce NOx emissions from the
company's power plants in the Chesapeake airshed by more than 150,000 tons per year. EPA
also intends to seek additional NOx reductions through enforcement of New Source Performance
Standards (NSPS) and SIP provisions governing NOx emissions. EPA will continue to vigorously
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Draft Chesapeake Bay Compliance and Enforcement Strategy
pursue these priorities but with a new emphasis on sources that contribute to nitrogen pollution
in the Bay. To achieve this goal EPA will (l) seek reductions from stationary sources of NOx
emissions by enforcing New Source Review, NSPS, and SIP requirements pertaining to NOx
emissions and obtaining either judgments or enforceable settlement agreements to install
pollution control technology and incorporate best management practices to achieve NOx
emissions reductions; and (2) seek reductions from mobile sources of NOx emissions by
enforcing mobile source regulations at port facilities, warehouses, and construction sites.
v. Toxics Cleanup
a.	Overview
In addition to nutrients and sediments other serious contaminants are negatively affecting water
quality in the Bay, such as PCBs; PAHs ; and metals—such as mercury, endocrine disruptors,
and pesticides. The U.S. Geological Survey estimates that 72 percent of the Bay segments are
impaired by contaminants. Such contaminants can leach into the groundwater or directly into
the Bay from sources in the watershed, such as industrial facilities, hazardous waste sites,
landfills, urban stormwater runoff, and mobile and stationary air sources.
b.	Goal
EPA will look broadly at the sources of toxic contamination to the Bay and work with the states
and other federal agencies to reduce the effect of hazardous substances on the Bay.
In particular, EPA will focus on toxics in three geographic areas in the watershed and closely
tied to the Bay: (1) the Elizabeth River; (2) the Anacostia River; and (3) Baltimore
Harbor/Patapsco River. Those areas have been identified as the waters most affected by toxic
contaminants and contain current and/or historical RCRA facilities, federal facilities, and
Superfund sites. EPA will use Superfund and RCRA authorities and partner with other federal
departments/agencies and states. We will seek to access and leverage resources, authorities and
compliance and enforcement strategies to address contaminants in these three areas. Over time,
EPA will continue to look for opportunities to use its Superfund and RCRA corrective action
authorities to address sources of hazardous substances within the Bay watershed.
In addition, actions taken in other parts of this strategy are likely to have a concomitant impact
on toxics in the Bay. For example, air enforcement actions designed to reduce nitrogen
deposition to the Bay could also result in reductions in mercury; improvements in wastewater
treatment and MS4 permits, facilities, and practices could also result in reduced toxics; and
better management of chicken litter from CAFOs could reduce the amount of arsenic entering
the Bay. Finally, ongoing efforts to reduce toxic contaminants entering the Bay and its tributary
waters, for example, for new TMDLs for local streams and larger-scale TMDLs for listed
chemical impairments (e.g., PCBs in the Potomac Basin) will also have a positive effect on toxic
levels in the Bay. EPA will continue to look for opportunities to address nutrients, sediments,
and contaminants together.
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