EPA Data Points to Clean Water Act Violations by Bad River Chippewa

By: Brian Sikma

Information from the U.S. Environmental Protection Agency suggests that a wastewater treatment facility owned by the Bad River Band of Lake Superior Chippewa has a history of violating the Clean Water Act. An EPA permit issued to the facility grants permission to the tribe to discharge treated wastewater into the Bad River if the water meets Clean Water Act and permit-specific standards. Compliance data maintained by the EPA appears to indicate that water discharged from the facility has repeatedly failed to meet the required standards.

In particular, the reports indicate that the tribe has been releasing excessive amounts of E. coli, phosphorous, and suspended solids into Denomonie Creek, which, according to an issued permit, runs into the Bad River.

A 2009 investigative report by the New York Times found hundreds of facilities around the country that were in violation of Clean Water Act standards. No other facility in Wisconsin, according to that report, had more violations of the Clean Water Act than the Bad River Band’s wastewater treatment facility. The report called the facility a polluter and implied that it was contributing to lower water quality.

An environmental regulatory compliance expert who spoke on background after reviewing the EPA data expressed serious concerns about what has taken place at the Bad River Band’s wastewater treatment plant.

“The nature and extent of these water quality violations is troubling.  It’s clear that these violations persisted over a period of years, and were reported to the EPA on a regular basis with no apparent enforcement activity.  The whole situation raises serious questions about the EPA’s oversight of this facility,” the expert said.

Tribal Perspective on the Bad River

The Bad River Band has been very outspoken in opposing a proposed iron ore mine several miles south of their reservation. Tribal officials, including chairman Mike Wiggins, have said that a mine would release pollutants into the river and watershed that would eventually destroy the tribe’s way of life.

Under the Clean Water Act, state regulators and the federal EPA manage a system of permits in the National Pollutant Discharge Elimination System. Commercial and municipal facilities must obtain an NPDES permit before they can discharge wastewater into streams, rivers, lakes and other bodies of water.

These NPDES permits specify water quality levels that limit the amount of pollutants than can be in the water when it is discharged. The Bad River Band’s wastewater treatment facility in Odanah, Wisconsin is currently operating on an expired permit and has repeatedly violated the terms of the permit. A renewed permit is set to be issued soon by EPA Region 5, according to a tribal affairs official with the EPA in Chicago.

NPDES permit holders, such as the Bad River Band’s wastewater facility, are required to file monthly or quarterly Discharge Monitoring Reports (DMRs) with the EPA to track pollution levels. Information on those reports forms the basis of any enforcement action taken by regulators. Because the Bad River Band facility is a tribal facility, the Wisconsin Department of Natural Resources is not responsible for oversight or enforcement at the facility. The responsibility for holding the facility accountable rests with the EPA.

E. Coli Violations

From October, 2007 through June, 2012, the Bad River Band seemingly violated the terms of its NPDES permit 38 times by releasing wastewater with excessive amounts of E. coli. Another 4 times the facility failed to report any E. coli levels to the EPA on the regular reports. In the 57-month period for which data is available on the EPA’s online compliance website, the tribe appears to have violated its permit by either reporting excessive levels of E. coli or failing to report E. coli levels a total of 42 times.

Excessive E. coli levels have run from 21% over the limit to as high as 5,400% over the limit, reports show. In one 19-month period spanning from December of 2008 to June of 2010, the facility complied only one time with its permit. The other 18 months saw spectacularly high E. coli levels in water released from the facility into the ecosystem.

According to the EPA, E. coli is bacteria that comes from human or animal waste. Its presence “in drinking water is a strong indication of recent sewage or animal waste contamination.”

Phosphorus Violations

Compliance with phosphate discharge limits appears to be another area of difficulty for the facility. From October of 2007 to June of 2012 the Bad River Band violated the terms of its permit by discharging excessive levels of phosphorus 33 times. Another three months during that 57-month period the facility failed to report any phosphorus discharge levels to the EPA. Through exceedance or failure to report, the facility appears to have violated its permit 36 times in 57 months in phosphorus discharges. The majority of violations ranged from 10% to 400% above required levels.

Phosphorus discharges are important because high amounts of phosphate in water can lead to algae blooms, according to the EPA and environmental scientists and experts.

It is not clear why the Bad River Band facility continues to exceed phosphorous limits. The limits set in the permit are easily reached by technology that is used by nearly every wastewater treatment facility in the nation. In fact, the Wisconsin DNR has recently tightened phosphorus discharge limits in order to address the problem of persistent algae blooms.

Suspended Solid Violations

The tribal facility has generated a number of non-compliance violations with suspended solids in released water as well. From October of 2007 through March of 2012, the facility failed to report any data to the EPA about suspend solid levels except for the months of July, August and September of 2010. All three months found the plant seriously over its permitted limits with the EPA noting the violations as “significant non-compliance.”

Tribal Concern About Water

The Bad River Band and Chairman Wiggins have consistently expressed tremendous concern over water quality in northern Wisconsin as debate over the proposed mine continues to unfold. They argue in part that diminished water quality would negatively impact the wild rice beds of the reservation. In a letter posted to a blog, Wiggins declared, “without our wild rice and Kakagon Sloughs, we won’t live.” State Rep. Nick Milroy (D), declared at one legislative hearing on the mine, “Wild rice is the Eucharist of the Ojibwa people. If we take that away from them, we take away everything that they believe in.”

When asked about the ongoing violations, Pat Hunt, the manager of the facility, said he had been hired to run the plant about 2 and a-half years ago. He said he “inherited a treatment facility and water and sewer system that had been for the most part ignored for many years.” Hunt indicated that the tribal facility had severely damaged its reputation for years and he has been trying to slowly resolve the issues. EPA reports show that the violations have not been fully resolved.

Enforcement Issues

To verify that the EPA’s online compliance website was accurate, Media Trackers obtained a number of copies of the facility’s original Discharge Monitoring Reports through a FOIA request filed with EPA Region 5 in Chicago. Spot check comparisons of the reports with the EPA’s website show that violations were indeed reported to the EPA.

None of the original reports filed by the Bad River Band facility with the EPA from 2008 through 2012 contained any explanation for the repeated violations. A mere 6 pages note that the measurements on the water were taken prior to discharge but after treatment by the facility. The EPA’s website also notes that no formal enforcement action has been taken by the agency in this matter.

EPA officials refused to explain any enforcement actions against the tribe. Reports posted to the agency’s website indicate that no official enforcement action has been taken in the last 5 years. Ann Rowan, a spokesperson for the EPA, told Media Trackers that the “EPA and Indian Health Service have been providing technical assistance to the Bad River Tribe to improve the operation of the Tribe’s wastewater treatment plant and correct its permit noncompliance.”

The violations are still apparently taking place according to Rowan. “While still not in full compliance, discharge quality has improved and reporting violations have been resolved.”

EPA officials did not explain why they gave the Bad River Band status in late 2011 to set its own water quality standards so long as those standards comply with the federal Clean Water Act.

Media Trackers will continue to ask questions of officials and provide updates as they become available.

Documentation

NPDES Permits:

WI0036587-3

wi0036587-4drftper (Draft of soon-to-be-released permit)

DMRs:

bad river 2012 dmrs

bad river 2011 DMRs

bad river 2010 dmrs

bad river 2009 dmrs

bad river 2008 dmrs

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