For the Price of a Speeding Ticket: Raw Sewage in a River Near You

Yee Huang

Yee Huang

Yee Huang, J.D., L.L.M, is a former CPR policy analyst.
Huang joined the staff in December 2008. Prior to that, her public interest experience had included internships with the Department of State in Vienna, Austria, and Windhoek, Namibia. She interned with the Center for International Environmental Law, researching avoided deforestation under the Kyoto Protocol. Ms. Huang also worked as a law clerk in the Water Branch of the Office of Regional Counsel for the Environmental Protection Agency, Region 3. During law school, Ms. Huang authored articles published in the University of Denver Water Law Review, the Florida Journal of International Law, and the Cardozo Law Review (with Christine A. Klein).
Ms. Huang graduated cum laude from Rice University with a B.A. in biology. She received a Rotary Ambassadorial Scholarship to study international law at the University of Kent in Brussels, Belgium, where she received an L.L.M. with distinction. Ms. Huang attended the University of Florida College of Law, where she co-chaired the 2008 Public Interest Environmental Conference and graduated cum laude.
Contact Information: 202.747.0698 ex. 6 email

Sept. 2, 2010

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: