Next-Generation Environmental Compliance

We talk with Cynthia Giles about why environmental legal requirements may underperform and how a smarter future design—monitoring, e-reporting, and transparency—can make water compliance the default. The conversation moves from pathogens and “sampling out” to climate-driven adaptation and a future reimagined federal–state data relationship.  Cynthia offers thoughts on:

• the gap between public health goals and actual outcomes
• beliefs about widespread compliance and enforcement’s primacy
• how rule design may create incentives to evade or delay
• pathogen risks in drinking water and “sampling out”
• the cost of weak monitoring and reporting penalties
• continuous monitoring as behavior change, not just detection
• electronic reporting and shared, real-time data access
• plain-language transparency that answers “is it safe”
• enforcement as a platform for innovation and SEPs
• federalism retooled for open data and state innovation

Cynthia's book is available free at nextgencompliance.org

#water #WaterForesight #strategicforesight #foresight #futures @Aqualaurus

Transcript

Setting The Stage: NextGen Compliance

SPEAKER_02 0:06

This is the Water Foresight Podcast powered by the Aquilaris Group, where we anticipate, frame, and shape the future of water through strategic foresight. Today's guest is Cynthia Giles, the former assistant administrator for the Office of Enforcement and Compliance Assurance with the U.S. Environmental Protection Agency. Cynthia, welcome to the Water Foresight Podcast. It is a privilege to have you with us today.

SPEAKER_00 0:28

Thanks, Matt. Thanks for inviting me.

SPEAKER_02 0:30

Well, I'm excited to talk to you. You have written a wonderful book called Next Generation Compliance Environmental Regulation for the Modern Era. Now, before we begin, I think it's helpful to get your perspective, your experience at EPA in the world of compliance and enforcement, or perhaps you would call it enforcement and compliance assurance, right? What is the current state of environmental compliance and enforcement? If I'm a water utility, if I'm a wastewater utility, what do I experience? What's that like today?

SPEAKER_00 1:04

So my book is about, and I think what we're going to be talking about here today is the big gap between what's hoped for in many public health rules like clean water, clean drinking water, uh, and what's actually being delivered on the ground.

SPEAKER_01 1:24

Yeah.

Two Myths About Compliance

SPEAKER_00 1:24

So NextGen is about what's the reason for that gap. And the basic thesis is that our rules are underperforming today because they contain design flaws that make it easy to avoid, evade, or delay on compliance. So let me give you a little the brief uh the the um thumbnail sketch of what is what is next-gen. Uh and I think it's helpful in doing that to say a tiny bit about my background so that people can know how I'm approaching this. Absolutely. You may not know. I I ran a water program for for a state. Wow in Massachusetts. I ran the water program uh for the Commonwealth of Massachusetts in the early uh 2000s. And I was an assistant U.S. attorney enforcing environmental laws. I worked in EPA Region 3 as a career person. I ran the enforcement office nationally uh as the assistant administrator for OECA under President Obama, and I worked in the Biden air office on uh climate change rules. Wow. So I've been doing this work a long time. Uh uh and and I've been, you know, in the trenches doing cases uh and at the top levels of policy. And and I would say that there are two beliefs about uh compliance that I have observed in during that time. One belief is that most companies comply. Um, you hear this all the time. Compliance is pretty good, especially large companies. Uh, you see, here lots of people in environmental policy circles say this. And the other belief is that compliance is the job of enforcers, uh, that the policy program people write the rules or write the permits uh and set the standards, and then they hand it over to enforcers. Uh this belief that compliance is the job of enforcers is so common that people don't even know it's a belief. Uh they think it's just the way things are, uh, you know, like gravity. Yeah. Um unfortunately, both of those beliefs are wrong. In fact, uh serious violations are widespread in all sides of companies, all sectors, all programs. I've asked over the over the course of my career, I've asked uh many people, many people who do have done environmental protection as their entire careers, um, to guess. How bad do they think compliance is? How how common is it for the most serious type of violations to occur? And the most common answer I've gotten to that question is five to ten percent. That's their guess. You wish, okay, it's nowhere close to that. It's way worse than that. 25% of serious noncompliance is the norm across most environmental programs, and many programs are much, much higher than that.

SPEAKER_01 4:19

Yeah.

SPEAKER_00 4:20

The other belief that compliance to the job and the enforcers uh is also wrong. The evidence shows that compliance is primarily the result of rule design. If if a rule is designed uh to make compliance the default, make it the path of least resistance, uh compliance will be good. If there's lots of opportunities to evade, to ignore, uh compliance is going to be bad, no matter what enforcement does. Yeah. So it's those two, the the universality of those two beliefs that are underlie on almost all environmental policies and are both demonstrably wrong. Um the book ex the book provides huge amounts of evidence uh uh for for my statement, those are both wrong. That's what gave rise to uh uh my desire to write the book, and that's what next generation compliance is about, is saying it really matters what happens on the ground in real life uh for these rules. We're not doing a good enough job. We're misdiagnosing the reason for the problem, and we need to we need to do much better through better design. And that's what most of the book is about.

Why Rule Design Drives Behavior

SPEAKER_02 5:29

Well, tell us what, and I'll use some fancy terms like high priority violators and and SNCCs, significant non-compliers. I'll I'll be cool for our inside listeners, right? In the world of water, I think they refer to them as SNCCs, right? Significant noncompliers, and there's other people that are majors, yeah. Yeah, majors and things like that. And it's it's a it's a framework. But give us an example of what a design flaw might be in you know the Clean Water Act or the Safe Drinking Water Act that really gives rise to your your myths there that you're you're knocking down.

SPEAKER_00 6:01

Okay, well, here's here, and I agree with you that examples really help people to understand this, otherwise can feel kind of abstract. So uh an example from drinking water, and the reason I pick drinking water is uh polls consistently show that the quality of drinking water is the top of the public's list of you know, public health and environmental concerns. Drinking water, everyone gets it. Right why why you need clean drinking water? So the example is pathogens, and pathogens are just bacteria or viruses uh that can cause illness um in drinking water. So the Safe Drinking Water Act thinks let's keep those out of our drinking water, let's not have that.

SPEAKER_01 6:40

Right.

Drinking Water Pathogens Problem

Sampling Out And Missed Violations

SPEAKER_00 6:40

Nevertheless, um EPA reports estimate that in the vicinity of 16 million cases of acute gastrointestinal distress from pathogens in drinking water uh occur every year. Uh so it's a it's a significant issue. The the rule that is supposed to address this, which we're not gonna get into the details of this rule too too too much in the weeze. Right, right. But the rule is called called the total coloform rule for those who are who who care about that. The only thing that it's relevant to know about for these examples is just that it requires sampling uh throughout the drinking water system to figure out if it's meeting requirements to protect people from pathogens. And uh EPA has said in the past that about 10 million people are served by uh community water systems that are violating the health-based standards for pathogens uh in a year. Unfortunately, that is that's not close. Okay, it's way more than that. And here's three examples from that rule that are that are examples of how design choices can uh result in a worse performance than than people intended. So one of the things is that the noncompliance violation is based on the percentage of samples over the threshold. Uh so let's say it's five percent over the threshold. So if you took 100 samples and you had five over, um uh then or six over, then you'd be over the five percent, and and that would be a violation. Unfortunately, uh the way the rule is written allows people to take more clean samples to get that number down. So let's say you get six, and instead of saying, oops, bad on me, I'm a violation, you just take, you know, 110 samples. Right. Uh the 10 new ones are clean, and so you're no longer violating. That strategy is so common that it actually has a name. Uh, it's called sampling out. So uh one study that was done of that found that about one-third of the violations were missed by uh utilities that were using that strategy. So that's one example.

SPEAKER_02 8:51

This is that rule's designed to allow people, not prohibit them, but allow people to sample endlessly and then perhaps pick the samples that they want to use for compliance purposes. Is that the am I oversimplifying it?

SPEAKER_00 9:05

Yeah, no, it's not so much that you can pick the samples to use, it's not quite that simple. But the the methodology that says it's a percentage of your samples without limiting the number of samples or rigidly uh prescribing where they have to be taken, uh, means that there's a lot of discretion and flexibility for a utility uh to change their sampling plan in a way that makes it a lot less likely, if not actually definitively moves them out of the violating zone. Interesting. Here's another design feature that that rule has.

SPEAKER_02 9:37

All right.

Reporting Loopholes And Hidden Risks

SPEAKER_00 9:38

So there's two types of violations. There's what's called a health bay violation, which is, you know, you had the wrong amount of pathogens, okay? So that's bad. Right. There's also monitoring and reporting violations. So that means you're supposed to sample so much every month, and you're supposed to report that to the state. And uh so those are monitoring and reporting violations. The design of that rule is set up so that health-based violations are have more serious consequences to the utility than the monitoring and reporting violations do. And the uh, you know, and people thought they had a good reason that they cared more about the health-based violations. But um the result of that is that if you know you have a violation of a health-based standard, you can just not report. Right. And not reporting is a far less serious consequence violation than reporting a health-based violation. So it is possible for a system to just sidestep the bad consequences by not monitoring or not reporting. And there were huge numbers of monitoring reporting violations every year. And GAO did a study and found that monitoring and reporting violations was a strong and statistically significant predictor of health-based violations. So, what that's telling you is behind all those monitoring reporting violations are uh a number, we don't know how big, but probably a lot, of health-based violations that we don't know about because people just didn't monitor or report. Wow. So those are those are two examples of how you can set up a system. If you're not thinking through what are the consequences of the choices that you're presenting uh for the regulated uh entities, you can create incentives for them uh to obscure uh the real situation on the ground with the uh in this case with quality of drinking water, but it's true in every program, every type of environmental program has uh features of this type. Wow. So what my book is about is hey, pay attention to the evidence. First of all, there's studies and evidence, okay, that this is happening. This isn't just me speculating. Uh you know, there's there's data showing that this does happen. And the evidence is that the impacts are quite significant. And when EPA reports the national results about how's our compliance with pathogens and drinking water, yeah, they don't have close to, nowhere close uh to the type of evidence they would need to have a real answer to that question. The only thing that is very clear is that it's many multiples of the number that they're saying. That's because that's the data that they have, which by the way, the states don't tell EPA about violations, even though they're required to. What? Uh yes. So so for pathogens, uh, about one study found about 17% of the health-based violations were not reported EPA, and 71% of the monitoring reporting violations were not reported EPA.

SPEAKER_02 12:43

Sounds like we need to we need to tell Ecos that.

SPEAKER_00 12:46

They yeah, I I think they're aware.

unknown 12:48

Okay.

SPEAKER_02 12:49

All right. All right. Well, that's uh maybe we need to look at the state review framework again or something like that.

From Problems To Solutions

SPEAKER_00 12:55

Well, I think there's other answers. This is my after laying out after laying out the problems and the evidence showing that these problems are widespread and very, very common. The the intention of the book is to talk about solutions. And so it turns to okay, now that we know this, and now that we know the violations are much more common than people think, and that rule design is the principal driver of that, what should we do? Um, and that's what it's for. That's what the book is about.

Is NextGen Legal, Moral, Or Tech?

SPEAKER_02 13:24

Yeah. So, you know, you use the word next generation, you talk about next generation tools. And my first question before we talk about the details of that, is it is it simply a legal solution? Like when we think out next generation, let's talk 20 years. Where we're where what are the scenarios? What are we going to look like in 20 years when we come back and you and I are talking in 20 years about the state of compliance in the world of water? Is it simply just a legal discussion? Like we look at this through the legal lens, and you and I can talk about, well, we need Congress to do this, and we need EPA to do that, we need the, you know, uh other folks in the executive branch to do this, this. Or is there another lens? Is there a moral lens to this that will shape the future of next generation compliance? And then finally, the technological lens. Um, are there innovations, tools that are out there that will shape the next generation of environmental compliance and enforcement, specifically in the in the world of water? So those are three dimensions to the way I think about next generation. Um your thoughts on on those three three dimensions.

Tech Advances In Monitoring

SPEAKER_00 14:29

I actually don't think there's three different dimensions. I think it's all part of one package. Okay. Which is the focus of next gen is very practical, non-ideological. It's practical. What works? Okay, what what moves us towards better performance? There's lots of different, many, many, many different strategies that can be deployed. So you mentioned high-tech. There's certainly one of the most transformative revolutions that's happened in the last you know, 10 to 15 years is in monitoring. Um, monitoring, I mean, just has changed uh as a revolutionized, really. So we have much more capacity to know what's going on through many different types of monitoring tools than we ever used to have. And we have other other high-tech tools that can really help with that. AI, many other things. Uh we can talk about that. So technology is certainly one. Uh, and the IT side of technology is certainly part of that high-tech. But it's not all high-tech. I mean, there's many very low-tech things that can be very effective. Transparency being one. So in in DC, you know, they had a requirement to host signs at every combined sewer overflow. Here's a pipe discharging water into this water body you care about. If there's something gross coming out of here, uh, here's a sign telling you who owns this and who what their phone number is. Wow. And, you know, that's an incredibly low-tech way of, and what they found is that that really did inspire those sewage treatment facilities to do a better job. Uh uh, and there's many, many other things. I have a whole chapter in the in the book, uh, which I call Next Gen Strategy is a playbook, with the many different ways that there are uh to drive for better outcomes and rules. And it's a combination of legal, you know, technology, uh just understanding incentives, uh structures, how how you design things so that people are motivated to do what's in the public interest. There's there's many, many uh answers to that question.

Real-Time Data And Regulators

SPEAKER_02 16:43

Yeah. I I only raise the moral ethical angle or lens because, you know, and I'm getting old here, and I I've been involved in this, uh, not as perhaps extensively as you over your career, but it seemed to me a couple decades ago, people just fought this stuff. They what it? Uh they they they they fought it. They didn't want uh, you know, they they were opposed to some things, they they would bring in their lawyers and scientists, and it seems that over time, as the younger crowd comes in and they're the new environmental managers, the VP of this and that, the running uh companies and the running water plants, they have a different mindset, a different ethic when it comes to protecting human health and the environment. It's not completely foolproof. It's not they're all not completely, you know, environmental advocates, so to speak, but it's different from several decades ago. We have a new generation of, say, environmental leaders who might be better aligned with your vision for next generation compliance. And there is this sort of, uh I'll say, and you can tell me whether you agree or not, but there's maybe a baseline that compliance is the floor, and we have an interest in not only achieving compliance and we're compensated, right, in part by our compliance with environmental laws, but we want to go beyond that, whether it's ISO 14001 or some environmental social governance ESG uh uh framework. So do you see that there are people who are younger that are becoming leaders in positions of of power decision making that are saying, you know, I I I heard what Cynthia said about next generation compliance and seems pretty straightforward. Let's work together to do it. Are you seeing changes in how ethical frameworks are perhaps supporting your vision for the future of next generation compliance?

SPEAKER_00 18:34

Well, I would agree with you that um times have changed since the 1970s uh when uh environmental laws was were first a thing, and you know, many companies' response was to resist, resist, resist. Yeah, those days are behind us uh for the most part, not universally. And I think the public expects better environmental protection than that. That, you know, and you know, that has become, you know, that environmental protection is part of the list of things to do for every company is uh I think well understood. And the idea that you're just gonna escape accountability uh altogether um is is not unheard of, but it is a more rare view.

SPEAKER_01 19:20

Yeah.

Preventing Monitor Gaming

SPEAKER_00 19:20

There are certainly leaders uh in uh the business world and uh and among states, leaders in uh trying to do the best possible job they can. I would say next gen is completely steps aside from any idea of who should or should want to or what anyone's motivations are. It's not about that. Um, it's about designing a system so that it gets the results you're looking for and does not depend on good intentions, bad intentions. It's indifferent to all that. It just says we want the these are the results we want. How do we design? A system to get those results. Uh, and that's the job of government when they write rules, is is to do that. So if people want to be leaders and they want to go beyond, that's terrific, wonderful. Uh, you know, great. We we applaud that. But that you can't have a a public health protection system that depends on that because history shows you that's not reliable. So don't depend on that. You need to design your program so that it delivers regardless. Yeah.

SPEAKER_02 20:28

Well, let's talk about some of those tools that you think of. Um, you know, in your book, you you highlight a couple, but what are these next generation tools? It's not necessarily just let's just write a new rule. I mean, you you go into some other innovations, but why don't you tick off in your own order, in your own way, some of these tools that you think will embody next generation compliance?

E-Reporting That Changes Outcomes

SPEAKER_00 20:51

Well, there's not a one size fits all answer to every problem. Uh uh, you know, so I know people would love to have that. Um, but but my experience is that the the most effective rules are ones that are designed to suit the problem uh that you're addressing. So how to deal with pathogens and drinking water run by a public-facing uh utility is completely different than what you should do for a coal-fired power plant, uh uh air emissions, for example. Uh so those are the same. But there are some common um themes, some things that are um uh effective in so many different contexts that it's always uh worth paying attention to. And I would say at the top of that list, uh, from my point of view is monitoring. Monitoring has uh just a, especially uh with the with the uh advances in monitoring we've been doing now, we're we're miles away from the old system. You probably remember the grab sample thing where someone goes out and takes a, you know, sticks their hand in there and grabs a grabs a sample uh and takes it back to the lab. Um, you know, that's better than nothing, uh, but it it doesn't have anything like the power that something like uh continuous uh monitoring has. Yeah. So here's a tiny illustration of the power of continuous monitoring. So there was a study just published um looking at what happened with coal-fired uh uh power plants during the last shutdown. What happened with compliance? This was like an air, an air quality issue, but they looked at uh compliance with uh SO2, Knox, and uh excuse me, PM. Yeah, a particulate manner. And SO2 and Knox have continuous monitoring required by other rules. Uh so those are monitored all the time, you know, all day, all night. Right. PM did not have required continuous monitoring. And what the study found was uh the companies differentially turned off pollution controls. So they didn't turn off the pollution controls where there was continuous monitoring because they figured, hey, we're stuck, everyone's gonna see that, everyone will know. Uh so you can't do that. Uh, but PM doesn't have that, so let's turn those off. And I mean, I think that's just an incredibly powerful illustration of if you had continuous monitoring, which by the way, um the there was a rule that requires continuous monitoring that the current Trump EPA is trying to pull back, required continuous monitoring for PM at at coal-fired power plants, just for this reason. It it shows the power of monitoring to change behavior. That's what it's about. Our the goal of these next-gen strategies is not to catch people, the goal is to try to inspire everybody to do what's needed to prevent the problems from arising in the first place. That's the goal. And continuous monitoring has tremendous power uh to do that.

Transparency That The Public Understands

SPEAKER_02 23:52

I remember that. I I have uh I will admit that I've been to a stack test. And uh that's when I learned about comms and CEMs, continuous emission monitoring and continuous opacity monitoring. And I thought, well, that's interesting. And even back then at my young age, I thought, gosh, you know, and here we are today, right? What if this happened um, you know, in a monitoring well uh at a RICRA subtitle C or D landfill? What if this happened as part of your NPDS permit, right? Um, or in a Safe Drinking Water Act uh well of some sort where you have continuous monitoring. And and I think you're telling me with the technology related to monitoring, that is very doable. Space age stuff. No, that's not space age. That's today. Yeah, that's not space age stuff. That's that's today. Okay. We can we can do that today. Here's one question that I'll I'll ask now, but do you see 20 years from now with this monitoring, do you see this the comms or SEMS or other uh monitoring technology that that would implicate water and wastewater facilities, that it is uh near real time and it is basically fed right to uh the regulator's desk. They can they can turn on their computer and see what's happening and even predict when there's going to be a violation. Is that is that today or is that uh next generation?

SPEAKER_00 25:14

I don't know what you mean by today. There's there certainly is one of the advantages of these advanced monitoring things is that continuous monitoring lets the facility know in real time what's going on. So that allows them to adjust their own behavior. That's very powerful. Um, there is also the potential to have government know in real time, which adds another level of motivation to the system for facilities to understand that cutting corners has potentially will be noticed. So so maybe it's just not uh advisable to do that, which is a good thing. We we'd like people to not do that, uh, and we'd like them to do it necessarily to protect public health. So yes, I think that's possibly a thing. I don't think government wants to be in dated with you know continuous monitoring from every cell in the country. I don't think that's a I don't think that's a a viable system. But if you had if you had continuous monitoring, there would be ways to filter that data to spot the things that are real alarm bells where you can say, oh, okay, you know, that's posing a real risk to the community now. So that's something that requires some attention.

Enforcement, SEPs, And Innovation

SPEAKER_02 26:25

Yeah. It might facilitate targeted compliance activity. Yeah, absolutely. Back to your opening comment about monitoring violations. It may be some time before a regulator finds out about the failure of monitoring. And you may be able to find out about that within an hour or two if it's supposed to be turned in on you know at a certain time.

SPEAKER_00 26:44

There's some pretty interesting uh studies that have been done about um when monitors are turned off, when monitors are out of commission. Um, is that just random um, you know, maintenance, which of course is a legitimate thing, or you know, just normal where and tear things happen. Um, and there's been some interesting studies saying, no, okay, yes, of course, sometimes it is that, uh, but there is a noticeable uptick in uh malfunctioning monitors um when uh there's reason to believe the consequences would be more severe. Okay, so there's definitely strategic behavior uh that's going on around monitors. And here's another example of next gen. Okay, so you don't want that, right? You don't you don't want people taking the monitors down when the pollution is the worst. Okay, that that's counterproductive. Uh and so one strategy that has worked very well to inspire people to actually know you better use the monitors, is a mandatory system that says if your monitor is down, you have to assume your pollution was at its worst. Okay, so your reporting has to say our pollution is the worst that it's been in any other time period during the time when it's down. That's a pretty high motivating uh uh factor for companies to say, let's it's gonna be better for us if we leave the monitors functioning. You know, that's it's that's gonna be better than than assuming worst case. So that's another way you can structure things so that you you create pressure and incentive towards the the result that you're looking for.

SPEAKER_02 28:21

Sounds like a lot of discussion. There's a lot of perhaps constitutional issues there. Not really. You know, permitting and I don't think so. Well, well, well we'll leave that to the to the uh attorneys and rule writers and and things like that. But as you know, sometimes uh well, most of the time rules come out and you know we have to wait for the courts to uh decide, and then we have the compliance implementation time frame, things like that. But what are some other tools that you think we need to consider when we think about next generation compliance?

Climate Change And Adaptive Rules

SPEAKER_00 28:51

So here's another tool that's been around for decades already now, uh, but we don't really make uh best use of electronic reporting. Okay, you'd think in 2025, right? Um you should have electronic reporting. Um and elect and that's not the case everywhere, um, and it is not used to best advantage. So in the water arena, about 10 years ago, we did the um, you know, the water, the acronym for the water discharge NPDS. So the NPDS e-reporting rule, um, which said basically, okay, starting with the majors, uh, major dischargers, you know, the highest volume uh uh surface water dischargers, and then expanding to other, you know, uh non-major dischargers, stormwater, general permits, other things, um, we're gonna have electronic reporting. And unlike the past, where it'd been that the reports come in paper to the states, and then the states were supposed to put it in manually into the electronic system with EPA, we're gonna have the um facilities are gonna report electronically directly into the system that EPA and the and the states share. So everybody will have access to all the data in real time uh simultaneously. That is, uh I think a huge innovation in and has driven you know significant uh changes in discharge patterns that we've seen, especially in the non-majors world, which has uh didn't receive enough attention in the past because nobody had access to the data. Um, that's been incredibly powerful. And I think we need to do the same thing in drinking water. Drinking water still operates under the models from the 1970s. I mean, it's not even your grandfather's system. That's like before that. You know, and this is one of the reasons why um EPA doesn't have a clue at the national level what's really happening on the ground, because all the information comes from states and study after study, repeated, repeated, you know, years and years of studies show that EP the states are not reporting them. So at the federal level, we don't we don't really know. So let's, you know, come on, it's 2025, you know, it's electronic era. Let's the systems have their data electronically. Let's have them report it, you know, it's easy for them, easy for everybody, everyone has access, greater transparency is so much more powerful as a system for protecting people than we have.

SPEAKER_02 31:28

We have the we have the e DMRs, the discharge monitoring reports. Um we can think about the monthly reports of operation. And then on the drinking water side, um, dare I say that the annual uh CCRs, uh uh the the uh you know the the contamination reports that water utilities have to put out for certain systems that they operate, we could we could even see that changing over time, where instead of maybe annually, those could be more regularly reported on dashboards or provided, you know, information could be provided directly um to EPA. Um I mean, they see that anyway.

SPEAKER_00 32:07

Um but even more to the point than than the consumer confidence reports, which are important, you know, that's that's a vital thing. The more important thing is how is the drinking water system doing on compliance with the Safe Drinking Water Act? Like are uh, you know, what's happening? Um is the water clean? Um that's that in in more close to real time. So having that information um electronically and available to everyone would be incredibly powerful. We don't have that today.

SPEAKER_02 32:38

Well, it's it that's kind of where I was going in that I've had experience with this where once a year customers get these scary-looking reports that are very bureaucratic and they get all worried and they call in and you know, is everything okay? I saw something here, I saw something there, and they're not sure what to do. Um, and by the time they may get it, the the compliance issue has been resolved. But perhaps that is something for you know water leaders to address going forward is how do we, as you put it, maybe electrify a lot of these things and digitize them and do so for the benefit not just of of you know the EPA or the states and the utility, but also customers.

Rethinking Federalism And Data

SPEAKER_00 33:17

Is that yeah, you know, is that well, so you may be interested to know that that you know, that paper used to be paper mailed once a year consumer confidence report to the um uh users, the consumers of the of the drinking water. Incredibly powerful in driving compliance. Incredibly powerful. The drinking water system didn't want to get those phone calls. Um and and just the fact that they had to do send out that annual report may caused a dramatic increase in compliance with the standards.

SPEAKER_01 33:50

Yeah.

SPEAKER_00 33:51

So, you know, it's there's all different ways of thinking about um these problems uh and setting up the incentives out the so that the entities that are supposed to comply um are motivated and incentivized uh to do what the rule is hoping they will do.

SPEAKER_02 34:08

I s I see your theme of transparency being woven throughout some of these things, and that's you would perhaps argue that transparency will continue to be a significant theme over the next 20 years when it comes to next generation compliance. Okay.

SPEAKER_00 34:22

And and the monitoring plus electronic reporting is a natural fit with transparency. Um, that's what makes transparency you know viable. Um, that you can you have all that data available and you can make it available in understandable ways to the public. There is value to just sort of putting out raw data that you know people who are knowledgeable can understand it and make use of it. But as to your point about how you know consumers are drinking water, for example, they don't want to know how many parts per billion or whatever you found. Uh they want to know is my drinking water safe? Right. And and it's important that transparency efforts uh uh communicate at the level that the recipient of that information can understand.

SPEAKER_02 35:08

Right. Not everybody that gets that report is a is a PhD chemist.

SPEAKER_00 35:12

Hopefully not.

Scenarios For The Next 20 Years

SPEAKER_02 35:13

You know, you know, they they want kind of a red, yellow, green. You know, am I good to am I good? Am I good to drink it? Good to uh, you know, bathe in it or water my lawn with it? What you know, am I good? Yeah. Let me let me flip this. Let's say I'm a water utility and I'm in trouble. I get a I get a notice of violation from uh from assistant administrator Cynthia Giles. That's not happening. I'm in trouble, you know. And and uh I I I come in and I talk about what's wrong and I work out a consent decree with you, and and there's a penalty involved, a civil penalty, but I want to offset that civil penalty with a supplemental environmental project. Now, on the enforcement side, what do you see happening uh in the world of water with next generation in enforcement? Could I do things with some of these next generation ideas and do so through a SEP or some other enforcement tool? What are your thoughts on that?

SPEAKER_00 36:12

Well, I would say it was incredibly common during the time that I was in the enforcement office, incredibly common that a company who was revealed to be in significant violation of you know important uh environmental standards that were threatening people's health or actually causing uh health harms, is unfortunately too often happened, to for them to, once they've been dragged to the table uh by enforcement action, and it's true at the state level as well as at the federal level, um, have an interest in resolving their problem um and and doing something that may prevent that problem from recurring in the future. So they they've gotten the message that they need to have a system that's gonna work within their own entity. And I have I have observed many, many companies um willing to try something new, uh, you know, coming forward and saying, I'm willing to try that new monitoring technology that people's talking about, see if it really works in the field. Um, or maybe I'm gonna do a new transparency method for this community where I'm gonna provide a lot more data than they're used to getting and, you know, uh make it easy for them to see uh what we're doing. Or, you know, there's or maybe I'm gonna uh try to offset the uh the uh violating pollution that I had in the past by trying this brand new thing that hasn't been tried before. So there's a lot of things that could excuse me, happen in uh in the context of enforcement resolution. It's not just through SEPS, although SEPS is, you know, one way, uh there's many other ways uh for for companies that want to step to the plate uh to do that.

SPEAKER_02 37:58

Yeah. And you know, injunctive relief and things like that. And and and I I just think that uh hopefully utilities, uh, you know, people in the world of water are not in trouble, that they are doing their level best to be in compliance. But it seems to me that um if you are in trouble, that there will still be the opportunity in the agreements, you know, agreed orders, consent decrees, things like that, for the application of your ideas from the next generation compliance perspective. That, you know, hey, I'd love to, I'm making this up, but hey, uh, as part of this, I'd like to offset the penalty by buying five USGS stream monitors, right? And put them out and about wherever USG wants them. Or I'm gonna buy some advanced analytical equipment, put it at my discharge, or put it upstream or wherever that may be. And and those things, uh, and most people don't know about the supplemental environmental projects policy, but it's a policy that's been around for for what two decades or more. And um, it's it's a good policy, and I hope that it stays there. That's my opinion. But um I don't see that changing in the future, but it it I think it allows the innovations that you and I are talking about to at least one way to allow these innovations to be facilitated into the future um by doing things you're not necessarily required to do by law and investing in them and and offsetting a penalty.

Closing And Where To Find The Book

SPEAKER_00 39:20

So and many times what what um a very powerful motivator is the companies discover these save money. Um, you know, that's a win-win. You can get a better performance and save money. Uh great. Let's let's pursue that. Can I I just want to add one thing that it's that um uh one of the challenges of what's gonna happen in the future in the water arena, um and how how does Next Gen fit into that um is that the the whole system uh that is part of this regulatory uh structure is going to be coming. Much more uh variable. So climate change is gonna make all these problems worse. So the stormwater runoff is gonna be worse, uh, you know, increasing pollution sediments and surface water. There's gonna be more droughts. Uh that leads to, you know, contamination concentration of surface water, uh, harmful algal blooms, you know, during hot weather, uh, and storm damage to water infrastructure, you know, a different type of physical uh risk to that infrastructure.

SPEAKER_02 40:31

So that implicates the Corps of Engineers and FEMA and all these other agencies.

SPEAKER_00 40:36

So the point being that the rules are not delivering today what they were intended to achieve. And in the future, this situation is gonna be much more dynamic. Okay. It's not gonna be the stable situation that was envisioned in the 70s when these systems were established. Okay, it's it's not gonna be like that. So it is gonna we really need to, and I think next gen actually fits very well with this because the basic concept of next gen is embrace innovation, okay? Shift from rigid systems where everyone's you know fighting over turf and power, uh, shift away from the 1970s, you know, and understand that we're gonna have to be much more adaptive. Uh so the rules are gonna need to be uh lead to better results in a situation that is going to be very uh dynamic. And and so that's gonna require, you know, obviously we need the monitoring, monitoring reporting, and all those kinds of things. Um, and and obviously, I hope this is obvious. Um we have to stop with the assumption that people are gonna do things just because we write it down in a rule, okay? That is that is wrong. Okay, that that doesn't it doesn't work like that. Um we we need to design for the system we want. Um and the other thing I would say that relates to this is is we need to reenvision federalism. So the federal-state relationship, which is which is we're still stuck in the 70s uh model for that. Uh, you know, this idea that states have a chokehold on the data that everybody needs to figure out where the biggest problems are with the two. Okay, so that's a problem. At the same time, EPA needs to loosen the reins on on you know compliance innovation at the state level. Uh states as laboratories of innovation is more uh necessary now than ever. Uh so states are closest to these problems and have the most capacity to figure out creative ways to try to address it. And it'll be much easier for EPA to loosen those reins when the data is there to know what's happening. So we're we're not taking a chance that, oh no, we're making everything a lot worse. Oh no, no, who knew?

SPEAKER_01 42:55

Yeah.

SPEAKER_00 42:56

That we, if we can know in real time how's it going, and it and it looks like this new idea is okay, that wait, we, oh, wait, wait, wait. Uh, you know, that seems like it's having a bad impact, then that allows EPA to be much more uh flexible and to embrace state innovation, which I I think both of those things. States have to give up, you know, loosen control over the data, and it EPA needs to uh loosen the reins on state innovation.

SPEAKER_02 43:21

Yeah. Your your your comments just took me back in in the Wayback Machine uh because it reminded me uh of uh many people may not remember this, but Vice President Al Gore and Project XL and his efforts to try to reinvent this um environmental regulatory um relationship in part between the feds and the states. And you know that that I just remember that he was looking for innovations, and you know, here we are today, you know, 25 years later.

SPEAKER_00 43:49

Um that program didn't work. Okay, so the data then you know it's but but it was He had some good I remember good ideas. The spirit was good to say, what what can we try that's different um that could improve the outcomes? Uh and you know that that attitude is where we need to be.

SPEAKER_02 44:08

Yeah. I uh I do remember those conversations. I remember being on the receiving end of some of those where I'm scratching my head saying, why won't they let us try this? Why won't they let us do this? Right. So your point is well taken. When we look out 20 years, and what what scenario do you think is most likely? When you think out the next 20 years about next generation compliance for for for water and wastewater utilities, are are you a are you a cautious optimist? Is this gonna be a, or maybe it's gonna be transformative, or maybe it's business as usual, or even maybe it just falls apart. It's a collapse scenario. What do you think, if you put on your foresight hat, what do you think it's gonna look like in 20 years?

SPEAKER_00 44:48

I think that we will uh necessity is the the parent of invention. Uh and I think that's there's a lot to be said for that. And I think that the disruptive effects of climate change on, I mean, where it lands first is water. Uh, you know, those are the places we're gonna be seeing it the most. And I think that that it is gonna become completely obvious to everyone that the rigid, uh, tightly controlled, you know, data obscuring system that we that we live under today is not working, not working for anyone. And uh that I think is gonna push everyone that we need to break away uh from the the frankly boring 50-year debates uh about uh what we should be doing in the compliance arena and cause people to look around. Well, what can we do? And and I'm hopeful that some of these ideas in next gen will be part of the well, what can we do? We know what to do. Okay, here's here's the tools. We know what to do. Uh we just have to have the will um to do it. And and I'm I'm hopeful that we can the uh uh public health protection programs of the future uh will, if they embrace these kinds of ideas, will lead to a much better compliance picture on the ground, um, such that the the enforcement people uh can focus their efforts not on routine, not trying to be the baseline insurers of you know routine compliance, that the rule will do that by itself. Uh and what the enforcement people can focus on is the worst violators, like you know, the criminal violators, you know, which there's gonna always be, I'm sorry to tell you, um the highest impact uh problems, the you know, problem-focused uh enforcement um and using enforcement as we were just talking about uh to explore innovations, you know, like seeing whether once you discover that there's a problem, seeing whether you can turn that negative, you know, there's been harm to the environment, harm to the community, uh, see whether you turn that negative into a solution for the future uh with willing partners. And so I'm hopeful uh sometimes, you know, bad news like the impacts of climate change can lead to positive uh innovation.

SPEAKER_02 47:21

Yeah. So I I hear your cautious optimism that in 20 years, whether you know it is a it continues to be an ethical shift, a technological innovation shift, and certainly looking at the things that are around us. We have these hurricanes or you know, the even these these unique flooding events like we had in Texas that wipes out a camp. And are we prepared, if I hear you correctly, to engage these activities, these challenges, these events in the world of water with the current compliance and enforcement framework that we've been living under for the last 50 years? And and how are we, and there's a lot of we in this, a lot of different actors, how are we going to respond to that and transform it? So when we're here talking about in 20 years, we can look back and say we've risen to the occasion and we've transformed the system of compliance and enforcement and improved how it performs in the world of water. Wouldn't that be great? Yes. Much to be I don't want to be a uh, you know, Matt's utopia, but that's I I I I uh I'm trying to harness your cautious optimism that there are people that see these aspects and will be here in 20 years trying to look back and and say, wow, um look what look what we have all done together to um improve the world of water.

SPEAKER_00 48:43

So well the challenges are are profound. So the the changes that are going to be coming with climate change for water and drink water are are profound. And I'm hopeful that we that will be the necessary motivator uh to push people to embrace innovation. There's all kinds of innovation. There's a lot of different directions this could go. Uh, but once people accept, yep, that's what we have to do. Now let's talk about how we're gonna do it. Uh that's the conversation we should be having.

SPEAKER_02 49:11

Yeah. It's a driver. Yeah, for sure. Well, Cynthia, I want to thank you for being an extremely thoughtful guest today on the Water Foresight Podcast. Uh, we've had a great conversation. I mean, we could talk for a couple more hours on uh compliance and enforcement and and uh uh all the memories that uh you and I can share. Tell people where they can get a hold of you or where they can get your book uh if they want to learn more.

SPEAKER_00 49:35

Uh well, thank you for that opportunity. So the book is available free, free to download. Um just go to nextgencompliance.org and the book is there uh for free.

SPEAKER_02 49:48

Wonderful. Wonderful. And they can find you there. And yep, if they have questions about what's the difference between a HPV and a SNCC, uh we can certainly uh we won't go over to Rick and talk about schmooze, but uh that'll be that'll be another another podcast. But uh Cynthia, it's been a real, a real pleasure to talk to you and and I look forward to having uh further conversations with you in the future about what uh compliance and enforcement looks like for the world of water over the next uh 10, 20, and 50 years. And so thank you for challenging us today. And uh thank you again for being a guest on the Water Foresight Podcast.

SPEAKER_00 50:22

Thank you, Matt.

SPEAKER_02 50:23

All right, and we thank you, the listener. Have a great day, and we'll see you on the next episode of the Water Foresight Podcast. Thank you for listening to the Water Foresight Podcast, powered by the Aqualaris Group. For more information, please visit us at aqualars.com or follow us on LinkedIn and Twitter.

unknown 50:42

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