NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
NPDES COMPLIANCE MONITORING INSPECTOR
TRAINING MODULE
LEGAL ISSUES
U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF WATER ENFORCEMENT AND PERMITS
ENFORCEMENT DIVISION
ENFORCEMENT SUPPORT BRANCH
MAY 1990
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
DISCLAIMER
This module has been reviewed by the U.S. Environmental Protection Agency's Office of Water
Enforcement and Permits and approved for publication. This module represents EPA's introductory
training on selected topics relating to conducting NPDES compliance inspections. Failure on the part of
any duly authorized official, inspector, or agent to comply with its contents will not be a defense in any
enforcement action, nor will a failure to comply with this guidance alone constitute grounds for
rendering evidence obtained thereby inadmissible in a court of law. The mention of trade names or
commercial products constitutes neither endorsement nor recommendation for use.
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
ACKNOWLEDGMENTS
This document represents an update of an earlier module originally developed by the Enforcement
Division of the Office of Water Enforcement and Permits. The module was revised under the direction
of Virginia Lathrop and Gary Polvi of the Office of Water Enforcement and Permits, with the review
and comment of Susan Cary Watkins, Office of Enforcement and Compliance Monitoring. In addition,
the EPA Regions provided extensive reviews. Many valuable comments were provided, most of which
have been incorporated into this module. Science Applications International Corporation prepared this
updated module under EPA Contract Nos. 68-01-7050 and 68-C8-0066, Work Assignment Nos. El-7, E2-
1, E2-8, and C-l-2 (E).
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TABLE OF CONTENTS
Page
FOREWORD mm v
1. INTRODUCTION M
1.1 OVERVIEW OF THE NPDES PROGRAM . M
1.2 PURPOSE OF THE NPDES COMPLIANCE MONITORING PROGRAM 1-2
1.3 SOURCES OF LEGAL AUTHORITY 1 3
1.4 NPDES AUTHORITY !!!!.'!!!!.'!.".* 1-3
2. AUTHORITY TO INSPECT 2-1
3. PERSONS SUBJECT TO INSPECTIONS 3_!
4. PREINSPECTION LEGALITIES 4_j
4.1 NEUTRAL INSPECTION PLAN 4.1
4.2 308 LETTERS 4_2
4.3 CONFIDENTIALITY 4.3
4.4 COMPLIANCE FILE 4_6
4.5 PERMITTEE RIGHTS '.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'. 4-6
5. INSPECTION OBJECTIVES 5.!
6. INSPECTION LEGALITIES . 6.1
6.1 ENTERING THE FACILITY 6-1
6.2 PRESENTING CREDENTIALS g-1
6.3 OBTAINING CONSENT TO INSPECT '.'.'.'. 6-3
6.4 WITHDRAWAL OF CONSENT !!!!.'!!!!!!!!!! 6-3
7. WARRANTS 7_!
7.1 REASONS FOR ISSUING A WARRANT 7.!
7.2 TYPES OF WARRANTS 7.2
7,3 REASONS TO SEEK WARRANT IN ADVANCE ! 7.3
7.4 OBTAINING THE WARRANT '.'.'.'.'.'. 7-3
7.5 CRIMINAL SEARCH WARRANT . 7.4
7.6 BURDEN OF PROOF 7-6
8. GATHERING AND PRESERVING EVIDENCE 8-1
8.1 SAMPLE RESULTS AS EVIDENCE 8-1
8.2 PHOTOGRAPHS !!!!!!!!!!! 8-2
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
TABLE OF CONTENTS (Continued)
9. BASIS FOR TESTIMONY 9-1
10. PRESENTING EVIDENCE FROM INSPECTIONS 10-1
10.1 ADMISSIBILITY OF EVIDENCE 10-1
10.2 OFFICIAL DOCUMENTS 10-1
10.3 SERVING AS A WITNESS 10-2
11. LIABILITIES 11-1
12. SUMMARY 12-1
LIST OF TABLES
Table
6-1 STEPS FOR ENTERING A FACILITY
Page
6-2
APPENDICES
APPENDIX A - SECTIONS OF THE CLEAN WATER ACT RELEVANT TO NPDES INSPECTORS
APPENDIX B - CRITERIA FOR NEUTRAL SELECTION OF NPDES COMPLIANCE INSPECTION
CANDIDATES
APPENDIX C - SAMPLE 308 LETTERS
APPENDIX D - EPA MEMORANDA ON ENTRY PROCEDURES
APPENDIX E - EXAMPLE WARRANT INCLUDING UNDERLYING AFFADAVTT
APPENDIX F - REVIEW QUESTIONS AND ANSWERS ON LEGAL ISSUES
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
FOREWORD
This document is one of five training modules developed by U.S. Environmental Protection
Agency's (EPA) Office of Water Enforcement and Permits to introduce the National Pollutant Discharge
Elimination System (NPDES) program to new inspectors. The information in each module is useful for
training an inspector unfamiliar with the NPDES program. The modules address the following topics:
The Overview module presents an overview of the entire NPDES program and briefly
summarizes different types of inspections conducted under this program
The Legal Issues module discusses the legal issues which must be addressed during an inspection
and provides legal information to assist inspectors in performing their duties
The Biomonitoring module outlines the principles of biomonitoring and the role of biological
testing in the inspection program
The Sampling Procedures module details procedures to be used when conducting sampling
inspections
The Laboratory Analysis module outlines procedures and information necessary to perform an
effective evaluation of a permittee's laboratory.
The modules are best used in a classroom setting where there is discussion between instructors and
students and where questions can be asked. Yet, they can also stand alone as reference sources.
Additional discussion of the topics covered in these modules appears in EPA's 1988 NPDES Compliance
Inspection Manual.
These training modules were developed primarily for in-house training of Regional and State
NPDES Inspectors. However, they are available as well to other interested parties such as attorneys,
other Government program offices, facility owners and operators, and members of the general public.
Regional and State personnel are encouraged to provide EPA Headquarters with suggested changes
or information which instructors or managers believe would improve these modules. The content of the
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modules will be updated and revised periodically. Comments, information, and suggestions to improve
the modules should be addressed to:
Enforcement Support Branch (EN-338)
Office of Water Enforcement and Permits
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
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1. INTRODUCTION
1.1 OVERVIEW OF THE NPDES PROGRAM
The Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act (CWA) of
1977 and by the Water Quality Act of 1987, specifies the objectives of restoring and maintaining the
chemical, physical, and biological integrity of the Nation's waters. The Act provides broad authority to
the U.S. Environmental Protection Agency (EPA) to:
Establish the National Pollutant Discharge Elimination System (NPDES) program and the
National Pretreatment Program
Define pollution control technologies and. establish effluent limitations based thereon
Obtain information through reports and compliance inspections
Take enforcement actions, both civil and criminal, when violations of the Act occur.
The NPDES program, mandated by Section 402 of the Act, regulates the discharge of pollutants from
point sources-such as municipal wastewater treatment plants, industries, animal feedlots, aquatic animal
production facilities, and mining operations. Each point source is required to obtain a NPDES permit,
containing effluent limits, monitoring and reporting requirements, and any other terms and conditions
necessary to protect water quality, in order to discharge.
To determine whether NPDES permit conditions are being met, Section 308 of the Act authorizes
inspections and monitoring of permittee facilities. Section 308 requires two types of monitoring: self-
monitoring to be conducted by the permittee and compliance monitoring to be performed by the
permit-issuing agency. According to the Act, an inspection may be conducted wherever there is an
existing NPDES permit or where a discharge exists or is likely to exist and no permit has been issued.
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Compliance with NPDES permit conditions is often monitored by States. Sections 308 and 402 of
the Act allow the transfer of Federal program authority to conduct NPDES permit compliance
monitoring to State agencies. Currently, over 75 percent of the States and territories are approved by
EPA to implement State NPDES programs.
1.2 PURPOSE OF THE NPDES COMPLIANCE MONITORING PROGRAM
As mentioned above, each NPDES permit contains! specific, legally enforceable, effluent limitations
and monitoring requirements. The purpose of the NPDES compliance monitoring program (and the
various inspections conducted under the program) is to evaluate the compliance of dischargers with
permit limitations and conditions. This evaluation involves two aspects: 1) collection of samples of a
permittee's effluent by a NPDES inspector as occurs during a Compliance Sampling Inspection (CSI), a
Toxics Sampling Inspection (XSI), or a Compliance Bioinonitoring Inspection (CBI); and 2) evaluation
of a permittee's self-monitoring procedures as takes place in a Performance Audit Inspection (PAI).
Under certain circumstances, the inspection may also evaluate the industrial monitoring and enforcement
efforts conducted as part of a municipality's pretreatment program. This type of inspection is known as
a Pretreatment Compliance Inspection (PCI).
To familiarize new NPDES inspectors with the legal aspects of compliance monitoring, this module
discusses how the law should be taken into account during NPDES inspections as well as hearings or
trials arising from such inspections. The module begins with a short review of sources of statutory
authority and briefly describes the legal basis for NPDES inspections. It then emphasizes the legal
considerations which facilitate the inspector's ability to perform his/her prescribed functions-namely, to
gain access and to identify, gather, preserve, and present evidence.
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1.3 SOURCES OF LEGAL AUTHORITY
Legal principles are meant to apply to a variety of different circumstances. Laws enable society to
be organized since they endeavor to make the outcome of business, political, and social interactions
predictable. Legal authority in the U.S. system of government comes from five sources: (1) the U.S.
Constitution; (2) legislative acts passed by Congress; (3) common law principles and legal precedents
established by court decisions; (4) regulations adopted by Government agencies; and (5) court decisions
interpreting the first four sources of legal authority and deciding their appropriate application under
varying factual circumstances. The U.S. Constitution is the foundation for all powers exercised by the
Federal Government. Only those powers that are specifically granted or implied to Federal authority in
the Constitution can be exercised by the Federal Government. Specifically, the Constitution provides for
Congress to pass laws; for the Executive Branch and its agencies to administer or execute the laws; and
for the Federal courts to interpret or explain those laws, to settle or resolve disputes over the laws, and
ultimately, to authorize and determine specific sanctions or punishment for violation of Federal laws.
1.4 NPDES AUTHORITY
Congress exercised its legislative power by adopting the Federal Water Pollution Control Act of
1972 [33 United States Code (U.S.C) 1251 et seq.]. Because the Act itself does not define each detail
to be implemented, Congress delegated to EPA the authority to develop regulations to carry out its
intent of controlling water pollution. Whenever the Agency adopts a regulation, that regulation has the
same force and effect as if the law were passed by Congress, assuming the regulation is within the
Agency's delegated authority and is constitutional EPA's current regulations for the NPDES, sludge,
and pretreatment programs are found in the Code of Federal Regulations (CFR) at 40 CFR Parts
122-125, 129, 133, and 136, 258, 503, and Chapter I, Subchapter N (i.e., the 400 series).
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2. AUTHORITY TO INSPECT
To determine whether permit conditions are met by the NPDES permittee, Section 308(a) of the
Act allows inspection and monitoring. In effect, the section provides for two types of monitoring. First,
the permittee must monitor itself: "the Administrator shall require the owner or operator of any point
source to ... maintain records,... make reports, use monitoring methods,... sample effluents,... and
provide other information" in a manner prescribed by the Administrator. Second, EPA may
independently verify the permittee's monitoring by conducting its own inspection and monitoring. "The
Administrator ... shall have the right of entry to ... any premises in which an effluent source is located or
in which any records required to be maintained ... are located, and may ... have access to and copy any
records, inspect any monitoring equipment or method,... and sample any effluents which the owner or
operator of such source is required to sample."
Although the Act grants the EPA Administrator with the power to monitor permittees, it is
obviously impractical for the Administrator himself to visit every permittee's premises. So Congress
extended the authority to enter, inspect, and sample to "the Administrator or his authorized
representative, upon presentation of his credentials." According to 40 CFR 122.41(i), Conditions Appli-
cable to All Permits, the authority to inspect permitted facilities is implicit. The inspector's authority is
not limited to entering and examining the industry's treatment plant (effluent sources) alone. The
inspector may inspect other areas of the permitted facility as well. General conditions affecting
monitoring requirements for permits are found in 40 CFR 122.41Q).
An inspector is issued credentials designating him/her as an authorized representative of the
Administrator. An inspector's credentials are his/her proof of authority to enter and inspect a facility
and must, therefore, always be presented when entering a facility. The primary purpose of using creden-
tials is to protect permittees from unauthorized inspections. However, the use of agency enforcement
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credentials also protects the inspectors, as will be discussed in Chapter 6. Failure of an inspector to
present credentials may give a court grounds for dismissing a judicial enforcement case.
An inspector, on entering a facility, should try to gain consent to inspect the facility from a
company official authorized to give the consent As with showing credentials on entry, this must be
done to ensure that the data collected are admissible in court. Chapter 6 discusses procedures to ensure
"consent1' before an inspection is conducted without a warrant
It should be noted at the outset that State law or the industry's own procedures may hamper entry
to the facility. For example, the State may require a warrant to enter and inspect the facility if the
permittee's consent cannot be obtained, or the industry may ask the inspector to sign a "hold harmless"
or other certification statement before admitting him/her to the premises. Both of these procedures
ensure that the permittee's Fifth Amendment right against self-incrimination will not be violated. The
inspector should, of course, abide by State law and procedures and seek the appropriate search warrant
or consent Under no circumstances, however, should he/she sign a "hold harmless" waiver of liability
prior to entering the facility. If entry is prevented by the permittee without such a waiver, a search
warrant should be sought and secured so that evidence of violations can be used in later court
proceedings. The procedure for obtaining a warrant is summarized in Chapter 7 of this module.
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3. PERSONS SUBJECT TO INSPECTIONS
Before conducting an inspection, it is important to identify those persons subject to EPA's legal
inspection authority. The scope of those persons covered by EPA's authority can be found in the Act
itself (particularly in Sections 301, 308, 402, and 502). Section 301 prohibits all discharges of pollutants
by any "person" ("person" including individuals, partnerships, corporations, States, and municipalities, as
defined in Section 502 of the Act) except as otherwise specifically exempted. Under Section 402 of the
Act, the Administrator can issue a permit for the discharge of any pollutant, or combination of
pollutants, that meets the requirements of Sections 301, 302, 306, 307, 308, and 403 of the Act or such
other conditions that the Administrator determines are necessary to carry out the provisions of this Act.
Section 308 of the Act allows the Agency to obtain information necessary to carry out its provisions. To
the inspector, these different sections of the Act provide legal basis for conducting an inspection
whenever there is an existing permit or, if no permit has been issued, a discharge exists or is likely to
exist and additional information to regulate the discharge is necessary. Appendix A of this module
contains sections of the Act relevant to inspections and enforcement.
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4. PREINSPECTION LEGALITIES
Before conducting an inspection, the legal issues affecting an inspection must be clearly
understood. Among others, these issues involve the selection of sites for conducting an inspection and
entry to a facility (308 letter and confidentiality).
4.1 NEUTRAL INSPECTION PLAN
Compliance inspections can be divided into two general categories: (1) those inspections targeted
using routine factors (i.e., using the Neutral Inspection Plan); and (2) inspections targeted because of
probable cause (e.g., based on specific evidence of an existing violation). An inspector should be aware
of the Neutral Inspection Plan for compliance inspections. The Neutral Inspection Plan was developed
for targeting routine compliance inspections. The plan targets facilities objectively and provides a
rationale for obtaining an administrative warrant if an owner or operator denies right-of-entry to inspect
a facility and if probable cause is absent. The plan's purpose is to eliminate any bias in targeting
inspections by using routine factors, rather than probable cause, as the criteria for inspection. Appendix
B of this module outlines these criteria for neutral selection of NPDES compliance inspection
candidates.
In brief, only two factors-the time that has passed since the last inspection and the geographical
grouping of the permittees-may be considered when establishing a Neutral Inspection Plan. Other
information, such as data from DMRs which indicated apparent violations, is not used in establishing the
plan because this would constitute probable cause under the civil standard. However, the existence of
such data would not preclude the facility from being considered, using the above criteria, for a routine
inspection if the neutral plan is followed during the selection process. The inspector should note that
permittees in current litigation with EPA should not be targeted for routine inspections because of the
difficulty in demonstrating that the litigation did not influence the inspection determination. However.
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this concern will not affect the scheduling of routine EPA inspections of permittees in current State
litigation.
The second category of inspections is based on prior knowledge of apparent or probable permit
violations. Sources for evidence of specific violations are: (1) Discharge Monitoring Reports (DMRs);
(2) citizen complaints; (3) observations during emergency situations; (4) follow-up to previous inspections
which indicate violations and potential violations; and (5) specific inspections for enforcement case
support
4.2 308 LETTERS
In preparing for an inspection, a 308 letter may be sent to the permittee. A 308 letter cites
Section 308 of the Act as the authority to inspect a facility (sample 308 letters appear in Appendix C of
this module). In lieu of sending the 308 letter in advance of an inspection, a phone call may be made
to arrange for appropriate officials to consent to the inspection and finalize arrangements.
The purpose of the 308 letter is to advise a permittee that an inspection is scheduled for its facility
within the next 6 months. This forewarns the permittee that an inspection is imminent. The 308 letter
usually requests information regarding onsite safety regulations to avoid problems concerning lack of
necessary safety equipment at the time of the inspection. The 308 letter may also specify the exact date
of the inspection (if surprise is not necessary). Coordination with the permittee is required, such as may
occur with a PAL A 308 letter, however, may not be necessary in instances where the permittee is
aware of the general time frame or frequency of an inspector's visits. Finally, the 308 letter is used to
inform the facility of its right to assert a claim of confidentiality.
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4.3 CONFIDENTIALITY
As noted in the previous section, when conducting compliance inspections, an inspector may have
to deal with claims of confidentiality as authorized under Section 308 of the CWA and as defined under
40 CFR Pan 2. This section of the statute is designed to protect confidential business information from
unauthorized disclosure. Confidential business information includes information considered to be trade
secrets (including chemical identity, processes, or formulation) that could damage a company's
competitive position if they became publicly known.
Any business being inspected has the right to claim all or any part of the information gathered
during that inspection as confidential. In fact, as a matter of policy, EPA notifies the business of its
right to assert' a claim of confidentiality. Frequently, the 308 letter is used for this notification. By
including a time period within which the business should respond to the 308 letter, EPA will be alerted
to any potential confidentiality problems before the actual inspection occurs. In this way, resources are
not wasted since claims of confidentiality and related right-of-entry problems need not be negotiated at
the time of the inspection.
The affected business may assert a claim of confidentiality at any time, according to 40 CFR
2.203(c). The business can make such a claim at the time of the inspection or at any time subsequent
to the inspection. This claim must be in writing and signed by a responsible company official. While
the business is entitled to make a claim of confidentiality on all information which an inspector requests
or has access to while onsite, claims of confidentiality are subject to review by the EPA
General/Regional Counsel's office.
A business may also make a claim of confidentiality on any reports generated that concern a
specific inspection. Typically, the business will make this confidentiality claim in response to the 308
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letter. When a business makes the confidentiality claim, the EPA Regional office normally will not
determine the applicability of 40 CFR Part 2 until there is a request for the information from a third
parry. If the business wants to request a determination before that time, it should include the reasons
for the claim as well as supportive technical data and legal authority in its request The exact
procedures for making and handling these requests are contained in 40 CFR Part 2. Until such a time
as that determination is made, the information shall be treated as confidential information.
In some cases, entry to a facility may be denied based on the claim by a permittee that there is
confidential information at the facility. In such cases, the inspector should recite the relevant
subsections of Section 308 so they are clearly understood by all parties involved. The inspector should
then explain the provisions of 40 CFR Part 2 concerning confidentiality. For example, the inspector
could suggest that the protected material or process be segregated from other disclosable information or
processes. The inspector should also have in his/her possession a copy of both the 308 letter which was
sent to the business and the business' response. If the facility representative still refuses entry, the
inspector should not contest the issue but should treat the matter in the same manner as any denial of
entry and immediately notify the appropriate EPA enforcement office for instructions.
4.3.1 Types of Information Excluded from Confidential Treatment
In order to understand claims of confidentiality, am inspector should know the types of information
considered confidential. These types of information are defined in 40 CFR Part Z The regulations
specifically exclude certain types of information from confidential treatment In particular, this "public
information" includes the NPDES permit application and all information attached thereto, the NPDES
permit, and all "effluent data" as defined in 40 CFR 2.302(a)(2)(i). According to this definition, effluent
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data include all information necessary to determine the identity, amount, frequency, concentration,
temperature, and other characteristics (to the extent related to water quality) of:
Any pollutant which has been discharged by the source (or any pollutant resulting from any
discharge from the source) or any combination of the foregoing
The pollutant which, under an applicable standard or limitation, the source was authorized to
discharge (including, to the extent necessary for such purpose, a description of the manner or
rate of operation of the source).
Effluent data may also include a general description of the location and/or nature of the source to the
extent necessary to distinguish it from other sources (e.g., a description of the device, installation, or
operation constituting the source). For additional clarification about confidentiality, EPA Regional
policy on the issue should be consulted.
4.3.2 Secrecy Agreements and Nondisclosure
Inspectors, whether EPA, the State, or EPA contractors conducting NPDES compliance
inspections, shall not sign any pledge of secrecy or confidentiality agreements or any agreement which
would limit the Agency's ability to disclose information received while inspecting a facility. Section 308
does not specify that a secrecy agreement must be executed as a condition of entry. Unauthorized
disclosure of confidential information by EPA or State employees and authorized contractors is
prohibited by law [33 U.S.C 1318(b)]. In addition, all contractor inspectors sign a statement that they
will be personally bound by 40 CFR Part 2 and not disclose protected trade secrets.
It is not appropriate for the compliance inspector to determine whether a permittee's claim of
confidentiality is justified. Once such a claim is made, the information must not be disclosed and must
be kept confidential until a determination is made by the appropriate EPA legal office. EPA employees
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who violate these requirements may be subject to dismissal, suspension, or fines. Criminal action may be
taken against EPA employees and authorized contractors who disclose confidential business information.
4.4 COMPLIANCE FILE
To prepare for a site visit, the facility's compliance file should be reviewed. This file should, at a
minimum, contain a copy of the permit as well as the 308 letter, the name and telephone number of the
person(s) of authority at the facility, DMRs, and previous inspection reports.
4.5 PERMITTEE RIGHTS
Execution of the CWA cannot interfere with the constitutional rights of persons subject to it As
a general principle of law, constitutional rights cannot be irrevocably sold, forfeited, or otherwise
relinquished. Accordingly, the NPDES regulations require one condition in all permits-that the
permittee consent to periodic inspections by EPA or State representatives. Consent to searches of the
permittee's premise or facility is required to respect the permittee's Fourth Amendment rights. This
constitutional provision guards against unlawful "search and seizure." By consenting, the permittee really
does not bargain away any of its own rights since the inspection powers are no more extensive than
those granted in Section 308.
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5. INSPECTION OBJECTIVES
Section 308 and its implementing regulations set forth the general authority, scope, and limitations
of inspections. According to this section, EPA inspectors may have access to and may copy records kept
by "the owner or operator of any point source" and can inspect monitoring equipment or methods used
by the permittee. This access is allowed even if the records are not kept on the same premises as the
effluent source.
Further, under the authority of Section 308, the inspector has access to property:
Across which an effluent flows
From which the effluent was first conveyed
Where a permittee collects effluent samples
Where the effluent samples are analyzed
Where the permittee's records of analysis are kept
While Section 308 provides inspection authority, 40 CFR 123.26 specifies the three objectives that
should be met during a routine compliance inspection. According to this section, the inspection should
be performed in a manner designed to:
Determine compliance or noncompliance with issued permit conditions and other program
requirements
Verify the accuracy of information submitted by permittees
Verify the adequacy of sampling and monitoring.
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To fulfill these objectives, the inspector may, once he/she is granted access to all of the permittee's
property, view and photograph the source, sample the effluent, read and copy records, and inspect
monitoring equipment and methods.
Regardless of the broad inspection authority in Section 308 and the NPDES regulations which
further define it, terms and conditions of a permit more precisely define the authority to inspect a
permitted facility. In the absence of unusual circumstances, routine compliance inspections should be
conducted only with reference to the permit From the permit, the inspector should be able to identify
the premises, source or sources of discharges, sampling points, monitoring equipment, and point(s) of
final discharge. Similarly, the type of sampling that may be done at the facility is determined by the
permit's terms. In general, pollutant concentrations (or mass), temperature, appearance, and flow rate
are examined to provide information about a permittee's compliance. If something unforeseen arises
during the inspection, the inspector should note its occurrence and report it to a supervisor or Agency
attorney.
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6. INSPECTION LEGALITIES
6.1 ENTERING THE FACILITY
Prior to entering the permittee's facility or during the inspection, the inspector should examine the
facility's perimeter. These observations may detect new or additional discharge points, leaky storage
areas, and other general housekeeping practices at the plant In case of an indirect discharger, such
measure may include sampling at a manhole immediately downstream. These preliminary observations
may facilitate the actual inspection by identifying problem areas that require future investigation.
To conduct an inspection, the inspector should enter through the front door or gate. Routine
procedures used to gain entry are set out in Table 6-1. It is stated in the Act that inspections should be
made "at reasonable times." This implies the normal business hours of the permittee but exceptions may
be made in cases of evasive permittees, emergencies, of other unusual circumstances.
6.2 PRESENTING CREDENTIALS
Upon arrival at the permittee's facility, the inspector should "fill in the blanks" in his/her
information as soon as possible; that is, check the owner's name and the plant address, ascertain who is
in charge at the plant, etc. The inspector should sign in and must present proper credentials. The
inspector (or contractor conducting inspections for EPA) should, under no circumstances, sign either a
confidentiality agreement or a liability waiver. If the inspector is denied admittance because he/she will
not sign either of these, the inspector should leave and notify his/her supervisor at once.
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TABLE 6-1. STEPS FOR ENTERING A FACILITY
The important steps for an inspector to take are to:
Identify him/herself and display credentials to title "person in charge."
Explain clearly the visit's purpose, what is to be seen, and that this work is being
done under Section 308 of the CWA. (Have a copy to show the person in charge.)
Explain that it is the permittee's right to claim material to be confidential and that
the inspector may examine areas relating to effluent production or storage even if the
permittee has asserted claims of confidentiality.
Ask for permission to begin the inspection. An inspector may not go to a nonpublic
area of the plant without consent (or a warrant) and should not attempt to do so.
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6.3 OBTAINING CONSENT TO INSPECT
After presenting his/her credentials and explaining the visit's purpose, the inspector's next step is to
find a person with authority to consent to the inspection. That is, the inspector must seek the
permission of the facility's agent or authorized representative. The key here is that "the person in
charge" must be contacted. By gaining consent to inspect the facility from the proper authority, the
inspector is guaranteeing the constitutional right of the permittee (as determined by the Barlow decision
discussed below) against unreasonable searches and seizures.
The consent of the person in charge must be informed and voluntary. Informed consent means the
person must understand the visit's purpose. Voluntary means that consent is given freely and not based
on trickery or coercion. However, the inspector should be aware that, barring a specific pronouncement
to the contrary under State law, "absence of denial" of consent can be inferred to be the equivalent of
consent. If a person in charge refuses to allow an inspection, the inspector can advise that person that
he or she may wish to consult with counsel prior to deciding to refuse entry and that the inspector is
required to report the refusal of entry to his supervisor who will then determine if a search warrant will
be sought This is a truthful statement of what an inspector is legally entitled to do. Under no
circumstances may an inspector threaten any retribution or punishment for refusing entry. In Marshall v.
Barlow's Inc. 436 U.S. 307 (1978), the Supreme Court ruled that no sanction may be imposed upon an
owner who declines to consent to inspection but instead insists upon a warrant.
6.4 WITHDRAWAL OF CONSENT
The permittee may withdraw consent at any time during the inspection. Therefore, if the person
in charge tells the inspector to stop and leave the premises, he/she should proceed in a similar manner
as if consent had not been initially granted. The inspector would then follow the steps for obtaining a
warrant Note that all information, data, photographs, samples, etc, gathered up to the point consent
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was withdrawn may be retained and need not be surrendered. The inspector should make careful notes
about what he/she did and saw up to the point consent was withdrawn so that any useful evidence
collected may be used in a hearing, if necessary.
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7. WARRANTS
The Supreme Court ruled in the Barlow case that the owner of a property, or his agent, could
lawfully refuse entry to a representative of an agency seeking to inspect the property without a search
warrant. This ruling was based on the Fourth Amendment to the Constitution, which guarantees
freedom from unreasonable searches and seizures.1 However, most inspections are conducted on the
basis of consent and the use of a warrant is very rare. Therefore, the next few sections may not apply
directly to an inspector's daily inspection duties. However, they are presented to give a complete picture
of the legal aspects of the NPDES inspection program.
7.1 REASONS FOR ISSUING A WARRANT
There are three reasons to issue a search warrant for an inspection:
Criminal probable cause, which requires proof that suggests a crime has been committed
Civil probable cause, which requires proof in a specific case that a civil wrong or violation has
taken place
Administrative probable cause, which requires proof that selection of the property to be
inspected has been made pursuant to a neutral inspection plan.
1 The Supreme Court may have modified the earlier Barlow decision by its ruling in Donovan v. Dewev
452 U.S. 594 (1981). In Dewey, the Court held that "[Legislative schemes authorizing warrantless
administrative searches of commercial property do not necessarily violate the Fourth Amendment," if
the owner cannot help but be aware that he will be subject to inspection. To ensure the viability of
its enforcement cases, EPA continues to observe the measures required by the Barlow case. Appendix
D of this module consists of two EPA memoranda outlining the Agency's position oh inspections after
the Barlow case.
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7.2 TYPES OF WARRANTS
There are two types of search warrants which may be issued:
Criminal search warrants
Civil or administrative search warrants.
The inspector should seek a criminal search warrant when he/she believes that specific plants have
intentionally violated the CWA and may require criminal enforcement action. An attorney should
already be involved in criminal cases and will be available to assist the inspector in obtaining a proper
warrant (attorney's aid should be sought to obtain civil warrants, too). Criminal search warrants are
explained in more detail in Section 7.5 of this chapter.
Administrative warrants are used when there is cause to believe that either the Act or the NPDES
permit have been violated, or there is an emergency situation such as a threat to public health and
safety, and it is anticipated that the permitting authority will seek civil penalties or other relief for
violations in a civil action in court Administrative warrants may also be used to inspect facilities where
there are no known violations of the Act, but information is needed to determine whether the permittee
is in compliance. Obtaining a warrant under these circumstances will depend upon previously developed
Neutral Inspection Plans (see additional discussion in Appendix B).
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7.3 REASONS TO SEEK WARRANT IN ADVANCE
In most inspections, the need for an administrative warrant will arise only after entry to a facility is
refused. However, supervisors may decide to request a warrant without waiting for a refusal of entry.
Generally, attorneys consider the following in deciding whether to apply for a warrant:
The need for surprise - In the time required to obtain consensual entry, evidence may be lost
or destroyed.
Past performance - Past refusals of entry or similar uncooperative behavior may indicate that it
will be futile to attempt a consensual entry.
The amount of delay that would later occur if a warrant becomes necessary - Lengthy travel
time may be necessary to obtain the aid of a magistrate or judge.
7.4 OBTAINING THE WARRANT
The administrative procedures to obtain any type of search warrant are essentially the same. The
application for a warrant cites the statutes and regulations pursuant to which the warrant is requested.
The application also specifies, as clearly as possible, the premises to be inspected, and describes, very
generally, how the search will be conducted. Finally, the application outlines the facts giving rise to
probable cause and refers to the affidavit(s) supporting the application.
A supporting affidavit is a sworn statement describing in detail the facts necessary to justify the
search warrant's issuance. The person who signs the affidavit should have personal knowledge of all
facts presented or should explain the source of hearsay used as an affidavit's basis. After denial of entry,
the inspector usually signs an affidavit. When there is not probable cause per se, an affidavit outlining
the Neutral Inspection Plan and its applicability to the premises is signed by a permitting authority
official. The thoroughness and truthfulness of an affidavit are critical in obtaining the warrant.
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Finally, a draft warrant is prepared and submitted for signature with the application and affidavit:
The warrant orders an inspector, marshal, sheriff, or other appropriate person to enter the property and
conduct certain inspection elements. The instructions specified in the warrant should be broad enough
to include all necessary and useful record copying, sample collecting, and picture taking, but not so
broad as to be rendered unclear by their vagueness (see the example warrant and supporting affidavit in
Appendix E of this module).
After the warrant is signed by a judge or magistrate, the inspector to whom it is directed may
proceed to execute its instructions. In many instances, the warrant will be directed to a marshal or
sheriff who will accompany the inspector. AH entry refused in the face of a warrant may lead to forcible
entry procedures and/or contempt of court charges. In executing the warrant, the inspector should
scrupulously abide by its terms. If any articles are to be removed from the premises by the inspector,
he/she must prepare an inventory of those articles and provide a receipt for them. After executing the
warrant, the inspector must complete a return of service form with the name of the person on whom the
warrant was served, the date of service, and the inspector's own signature. The return of service form,
executed warrant, and inventory, if any, should then be returned to the issuing judge by the attorney.
7.5 CRIMINAL SEARCH WARRANT
The CWA provides for both civil and criminal violations. The violation of any condition or
limitation in a NPDES permit is a civil violation. However, if the violation is either willful or negligent,
it is a crime. Legally, a person's act is willful if it is done knowingly and intentionally.
Another type of crime defined in.the Act is falsification of information. This crime is committed by
any person who "knowingly makes any false statement, representation, or certification in any application,
record, report, plan or other document filed or required to be maintained under this Act or who
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falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be
maintained under this Act" It is possible that an inspection might turn into a criminal investigation.
This transition could have many legal effects on the way the inspection is conducted, on how a case
would be prosecuted, and on the penalties for conviction. If an inspector has any reason to suspect
criminal probable cause during the investigation, he/she should contact the legal counsel assigned to
his/her office for further instructions.
As discussed previously, the Fourth Amendment secures the right to be free from unreasonable
searches and seizures. The manner in which the courts protect this right is to disallow the use of
evidence obtained illegally. A legal search to obtain evidence intended for use in a criminal prosecution
requires the use of a criminal search warrant. Rule 41 of the Federal Rules of Criminal Procedure
prescribes the procedures EPA must follow to obtain such a warrant
By comparison, the requirements for obtaining an administrative warrant or a search warrant for
civil prosecution are much less rigorous. This difference leads to a conflict; that is, whether evidence
obtained by execution of a civil search warrant can be used in a criminal prosecution. Based on the
Barlow case, Michigan v. Tvler (98 S. Ct 1952), and U.S. v. LaSalle National Bank (57 L. Ed.2d 221),
the crux of the issue is whether a criminal prosecution was anticipated before the search. If so, a
criminal search warrant would have been required, and evidence obtained under a civil warrant would be
inadmissible in a criminal prosecution. However, if only a civil prosecution is anticipated but evidence
of a criminal violation is found in the course of executing a civil warrant, that evidence will be
admissible in a criminal prosecution.
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7.6 BURDEN OF PROOF
Another distinction between a civil and criminal action also reflects the greater protection afforded
persons subject to criminal prosecution. "Burden of proof refers to the weight of evidence needed to
prove in a trial that a person is civilly liable or guilty of criminal wrong doing. Civil liability requires
only a simple preponderance of evidence. This means that evidence shows the violation is more likely to
have occurred than not It is important, however, to obtain as much evidence as possible of the
violator's liability even though the proof required for civil liability is less than that needed for a criminal
verdict of guilty. A criminal conviction requires showing evidence of willful or negligent behavior
resulting in the violation. The Government must demonstrate these circumstances beyond a reasonable
doubt This difference in burden of proof affects inspectors only to the extent that they must be
extremely thorough in gathering evidence to support a criminal case.
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8. GATHERING AND PRESERVING EVIDENCE
As mentioned in earlier sections of this module, the information gathered during inspections may
be used as evidence in the prosecution of either civil or criminal actions. Evidence consists of different
kinds of materials used to establish facts, such as inspectors' logbooks, which in turn demonstrate that
violations actually occurred.
8.1 SAMPLE RESULTS AS EVIDENCE
In order for the results of sample analysis to be admissible as evidence, a logical and documented
connection must be shown between samples taken and analytical results reported. This connection is
shown by using any system that prevents the alteration, loss, mixture, or interchange of the samples
between the time they were taken and the time they were analyzed. Such a system is commonly referred
to as a "chain-of-custody" procedure. An effective chain-of-custody system has three parts:
Each sample is labeled to uniquely identify it
Each sample is kept securely closed between the time of sampling and time of analysis to
preserve sample integrity
An uninterrupted chain-of-custodv is maintained.
For purposes of this module, chain-of-custody means written acknowledgment by any person who
has possession of the samples, including the exact time period, so that each "custodian" can testify that
the sample was properly taken, transported, analyzed, and reported. More specific details regarding
chain-of-custody procedures are outlined in the training module on Sampling.
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The legal pitfalls associated with the custody system deserve brief mention. First, labeling should
follow a uniform policy. If individual inspectors make up their own sample code, the resulting confusion
could disqualify the sample as evidence. Second, sample containers should be carefully selected and
used. The method used to seal the containers (if the sample will be left unattended) should be capable
of indicating if the seal has been broken. Finally, forms should accompany the sample and be signed by
each person having custody over it A sample is considered in custody as long as it is within the
custodian's actual possession, within his range of view without interruption, or stored by him in an
enclosed, secured area.
8.2 PHOTOGRAPHS
A camera should be pan of the standard equipment used in an inspection. Photographs will be
less objectionable to the permittee if taken on a routine basis. In the event that the permittee objects
to a camera's use, the inspector should explain its purpose (e.g., to record process lines, treatment
systems, or monitoring locations). If objections persist, the camera is best left behind in order to
continue the inspection.
Photographs are effective evidence and admissible in court if properly identified by and supported
with the testimony of the inspector who took them. As with all physical evidence, identification and
proof of authenticity are crucial. As the inspector takes photographs during an inspection, he/she should
keep a log in which each photo is numbered and described (for example, Photograph No. 1: view
looking from east from front gate of facility). After the photographs are developed, the inspector should
write the appropriate number on each.
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9. BASIS FOR TESTIMONY
Testimonial evidence is not collected in the same sense as physical evidence. However, an
inspector's notes, either written or dictated, can be a basis for presenting testimony at a later date. The
inspection notes must be sufficiently detailed to allow reconstruction of the inspection from his/her
logbook. It is important that the inspector record observations rather than opinions. Only those
opinions that the inspector is qualified to express by virtue of special training or expertise, such as
relevant work experience, may be admissible.
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10. PRESENTING EVIDENCE FROM INSPECTIONS
Previous sections of this module have covered various aspects of the inspector's role in conducting
inspections and gathering evidence. While EPA or State Attorneys can be expected to orchestrate the
enforcement case generally, inspectors perform an integral function in providing the evidence of
violations. This chapter focuses on the inspector's presentation of evidence during an administrative or
judicial enforcement action.
10.1 ADMISSIBILITY OF EVIDENCE
Evidence is subject to rules which vary, depending on the legal forum (State or Federal court) in
which the action is sought and the type of proceeding (civil, administrative, or criminal) in which it is to
be used. However, certain general rules apply universally to the admissibility of evidence. To ease the
burden of presenting a case, some elementary facts may be accepted as true without proof. This may
occur in several ways:
Judicial Notice - A court recognizes facts as common knowledge. (For example, that 1 + 1 =
2 and that September 9, 1987, was a Wednesday.)
Admissions in the Pleadings - The parties in a case may admit the truth of certain facts in the
written pleadings that they submit
10.2 OFFICIAL DOCUMENTS
In the course of presenting evidence, documents are frequently used, including permit forms,
laboratory analysis reports, letters, written contracts, and deeds. A custodian is frequently designated to
keep many official government documents and can certify as to their authenticity through means of an
affidavit.
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10.3 SERVING AS A WITNESS
10.3.1 Discovery and Pretrial Preparation
The inspector acts as a witness when he/she signs an affidavit supporting an application for a
search warrant The inspector's role may require him to provide information in a case, even before the
case comes to trial The inspector may also be called upon to provide information to answer the
opposing party's interrogatories or provide a deposition of his/her information and knowledge regarding
the facility and any alleged violations. This process of "discovery" allows the opposing party, within the
rules governing civil procedure, to obtain information. Of course, the inspector must always tell the
truth and should also remember that this deposition may be used against him/her during cross-
examination.
Giving testimony at a trial involves substantial preparation. The government attorney will go over
the inspector's testimony carefully and indicate the type of questions which are likely to be 'asked on the
stand by both him/herself and the opposing attorney. If, during cross-examination the inspector is asked,
"Did you and your attorney talk about how you would answer the questions?," he/she should have no
qualms about saying yes. Be sure to listen to the exact words raised by counsel. If the question is "Did
your lawyer tell you what to say?," the inspector's answer should be different In addition, witnesses
should not only be familiar with the case and questions, but should have some practice in a courtroom
format In this respect, participation in a mock trial, including cross-examination, is often a very useful
exercise.
10.3.2 On the Witness Stand
Once on the stand, the inspector should speak loudly and clearly enough to be heard. If the
inspector needs time to think or recollect before answering a question, he/she should take it. If possible,
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the inspector should face the judge or the jury to answer any questions that may be asked. The
following points should also be kept in mind when serving as a witness:
The inspector should provide only the specific information asked for and should not volunteer
additional information or expand on the answer.
If a yes/no question is asked but neither is an appropriate answer, the inspector should say so.
If the inspector does not understand or cannot remember an entire question, he/she should say so.
If the inspector notices that he/she has maae an error, that error should be corrected as soon as
possible.
If the inspector does not know the answer to a question, he/she should say so.
If the inspector needs notes to recall some of his/her testimony to answer a question, request the
court's permission to refer to the notes and remember that opposing counsel has a right to see
them.
The inspector should not start answering until a question is finished and should stop answering
a question as soon as an objection is raised, even if he/she stops in mid-sentence.
10.3.3 Cross-Examination
The main consideration during cross-examination is to stay calm. The opposing attorney will try to
cast doubt on what the inspector has said. When this occurs, the witness must not get angry or be flippant.
He/she should listen carefully to each question and watch out for purposeful misquotes of what has been
previously said. If the inspector becomes uncomfortable, he/she should pause and take a deep breath to
collect his/her thoughts. The witness should not look at the attorney for assistance.
Normally, the testimony of a witness will consist of fact However, an "expert witness" may also be
requested to give limited opinions based on specialized expertise in a given subject An expert witness must
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first be established or "qualified." Typically, education and experience will be described to the court. These
qualifications will probably be cross-examined by the opposing counsel. Experts' opinions are presented
through the use of hypothetical questions that relate to the facts of the case.
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11. LIABILITIES
EPA representatives should be aware of potential liability that may arise while acting as inspectors
or witnesses. While inspecting, the inspector is an agent of EPA and is generally safe from liability.
However, problems can occur if the inspector does not stay within the limits of his/her authority. The
inspector may incur personal liability for actions taken beyond the scope of this authority. In order to
protect him/herself from liability, the inspector must identify himself properly. An EPA I.D. can serve
this function if it is presented. As an EPA or State inspector or an authorized EPA contractor, he/she
is also protected in the event personal injury occurs during an inspection. However, the agent might
lose this protected status by acts such as threatening a permittee, using force to enter premises, going
beyond his/her inspection authorization, or accepting money (a bribe) from a permittee.
Serving as a witness can also result in. personal liability if the inspector commits unnecessary, overt
acts. For example, lying under oath could subject a witness to prosecution for perjury. Similarly,
disturbing the court could make the witness liable for contempt
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12. SUMMARY
To summarize, under the Act, inspectors, as agents of the EPA Administrator, may enter the
premises of permittees and conduct inspections. Before entry or after refusal of entry, the use of a
warrant may be necessary. The Fourth and Fifth Amendments, as well as certain procedural principles,
protect the rights of the permittees being inspected, especially when the inspection becomes a criminal
investigation.
Information gathered during an inspection may be used as evidence in prosecuting a civil or
criminal case if the evidence is collected and preserved properly, and if it is relevant and material.
Serving as a witness is primarily a matter of careful preparation and calm, collected testifying. Serving
as an expert witness on a specific subject allows a witness, once qualified, to express an opinion on that
subject Finally, an EPA employee or authorized contractor who serves as an inspector or a witness is
legally secure as long as he/she does not greatly deviate from established procedures.
In closing, it is important to remember that the inspector is an agent or representative of the
Administrator, whose job is:
Visible - Few other EPA representatives come in direct personal contact with regulated
companies
Important - Gathering and reporting information to help the Agency do its job is essential to
the success of the Agency's efforts
Sensitive - Some companies may not welcome the inconvenience associated with a Government
inspection
Highly responsible - An inspector's credentials directly confer the authority to inspect facilities
for compliance, with no other control or supervision.
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For these reasons, the inspector should take his/her authority seriously and perform his/her
responsibilities conscientiously.
Appendix F of this module contains questions that the inspector can review to determine if he/she
understands the contents of this module.
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APPENDIX A
SECTIONS OF THE CLEAN WATER ACT
RELEVANT TO NPDES INSPECTORS
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FEDERAL WATER POLLUTION CONTROL ACT,
AS AMENDED BY THE CLEAN WATER ACT OF 1977
(Commonly Referred to as Clean Water Act)
(Enacted by Public Law 92-500, October 18,1972, 86 Stat. 816; 33 U.S.C. 1251 et
seq.; Amended by PL 93-207, December 28, 1973, and PL-243, January 2,1974; PL 93-
592, January 2, 1975; PL 94-238, March 23, 1976; PL 94-273, April 21, 1976; PL 94-
558, October 19, 1976; PL 95-217, December 28, 1977; PL 95-576, November 2, 1978;
PL 96-148, December 16, 1979; PL 96-478, PL 96-483, October 21, 1980; PL 96-510,
December 11, 1980; PL 96-561, December 22, 1980; PL 97-35, August 13, 1981; PL
97-117, December 29, 1981; PL 97-164, April 2, 1982; PL 97-440, January 8, 1983;
Amended by PL 100-4, February 4, 1987)
(Editor's note: The Federal Water Pollution Control Act Amendments of
1972. PL 92-500. replaced the previous language of the Act entirely, including
ihe Water Quality Act of 1965. the Clean Water Restoration Act of 1966. and
the Water Quality Improvement Act of 1970. all of which had been amend-
ment! of the Federal Water Pollution Control Act^ first passed in 1948 T>e
1977 amendments. PL 95-217. further amended'P'L 92-500. as did PI 95-576 I
TITLE IRESEARCH AND RELATED
PROGRAMS
DECLARATION OF GOALS AND POLICY
Sec. 101. (a) The objective of this Act is to restore
and maintain the chemical, physical, and biological
integrity of the Nation's waters. In order to achieve this
objective it is hereby declared that, consistent with the
provisions of this Act
(1) it is the national goal that the discharge of pollu-
tants into the navigable waters be eliminated by 1985;
(2) it is the national goal that wherever attainable, an
interim goal of water quality which provides for the pro-
tection and propagation of fish, shellfish, and wildlife
and provides for recreation in and on the water be
achieved by July I, 1983;
(3) it is the national policy that the discharge of toxic
pollutants in toxic amounts be prohibited;
(4) it is the national policy that Federal financial
assistance be provided to construct publicly owned
waste treatment works;
(5) it is the national policy that areawide waste treat-
ment management planning processes be developed and
implemented to assure adequate control of sources of
pollutants in each State;
(6) it is the national policy that a major research and
demonstration effort be made to develop technology
necessary to eliminate the discharge of pollutants into
the navigable waters, waters of the contiguous zone, and
the oceans; and
(7) it is the national policy that programs for the
control of nonpoint sources of pollution be developed and
implemented in an expeditious manner so as to enable
the goals of this Act to be met through the control of
both point and nonpoint sources of pollution.
(101(a)(7) added by PL 100-4]
(b) It is the policy of the Congress to recognize, pre-
serve, and protect the primary responsibilities and rights
of States to prevent, reduce, and eliminate pollution, to
plan the development and use (including restoration,
preservation, and enhancement) of land and water
resources, and to consult with the Administrator in the
exercise of his authority under this Act. It is the policy
of Congress that the States manage the construction
grant program under this Act and implement the permit
programs under sections 402 and 404 of this Act. It is
further the policy of the Congress to support and aid re-
search relating to the prevention, reduction, and elimi-
nation of pollution, and to provide Federal technical
services and financial aid to State and interstate agencies
and municipalities in connection with the prevention,
reduction, and elimination of pollution.
(c) It is further the policy of Congress that the Presi-
dent, acting through the Secretary of State and such na-
tional and international organizations as he determines
appropriate, shall take such action as may be necessary
to insure that to the fullest extent possible all foreign
countries shall take meaningful action for the preven-
tion, reduction, and elimination of pollution in their
waters and in international waters and for the achieve-
ment of goals regarding the elimination of discharge of
REPRINTED BY PERMISSION FROM ENVIRONMENT REPORTER.
PUBLISHED BY THE BUREAU OF NATIONAL AFFAIRS, INC.,
WASHINGTON, D.C. 20037
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71:5102
FEDERAL LAWS
pollutants and the improvement of water quality to at
least the same extent as the United States does under its
laws.
(d) Except as otherwise expressly provided in this
Act, the Administrator of the Environmental Protection
Agency (hereinafter in this Act called "Administrator")
shall administer this Act.
(e) Public participation in the development, revision,
and enforcement of any regulation, standard, effluent
limitation, plan, or program established by the Ad-
ministrator or any State under this Ac' shall be provided
for, encouraged, and assisted by the Administrator and
the States. The Administrator, in cooperation with the
States, shall develop and publish regulations specifying
minimum guidelines for public participation in such
processes.
(0 It is the national policy that to the maximum ex-
tent possible the procedures utilized for implementing
this Act shall encourage the drastic minimization of
paperwork and interagency decision procedures, and
the best use of available manpower and funds, so as to
prevent needless duplication and unnecessary delays at
all levels of government.
(g) It is the policy of Congress that the authority of
each State to allocate quantities of water within its
jurisdiction shall not be superseded, abrogated or other-
wise impaired by this Act. It is the further policy of
Congress that nothing in this Act shall be construed to
supersede or abrogate rights to quantities of water
which have been established by any State. Federal agen-
cies shall co-operate with State and local agencies to
develop comprehensive solutions to prevent, reduce and
eliminate pollution in concert with programs for manag-
ing water resources.
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TITLE HISTANDARDS AND ENFORCEMENT
EFFLUENT LIMITATIONS
Sec 301. (a) Except as in compliance with this sec-
tion and sections 302. 306, 307, 318,402, and 404 of this
Act. the discharge of any pollutant by any person shall
be unlawful.
(b) In order to carry out the objective of this Act
there shall be achieved
(1) (A) not later than July I, 1977, effluent limita-
tions for point sources, other than publicly owned treat-
ment works, (i) which shall require the application of
the best practicable control technology currently avail-
able as defined by the Administrator pursuant to section
304 (b) of this Act, or (ii) in the case of a discharge into
a publicly owned treatment works which meets the re-
quirements of subparagraph (B) of this paragraph,
which shall require compliance with any applicable pre-
treatment requirements and any requirements under sec-
tion 307 of this Act; and
(B) for publicly owned treatment works in existence
on July I, 1977, or approved pursuant to section 203 of
this Act prior to June 30, 1974 (for which construction
must be completed within four years of approval), efflu-
ent limitations based upon secondary treatment as
defined by the Administrator pursuant to section 304(d)
(l)of this Act; or,
(C) not later than July 1, 1977, any more stringent
limitation, including those necessary to meet water qual-
ity standards, treatment standards, or schedule of com-
pliance, established pursuant to any State law or regula-
tions, (under authority preserved by section 510) or any
other Federal law or regulation, or required to imple-
ment any applicable water quality standard established
pursuant to this Act.
(2) (A) for pollutants identified in subparagraphs
(C), (D), and (F) of this paragraph, effluent limitations
for categories and classes of point sources, other than
publicly owned treatment works, which (i) shall require
application of the best available technology economic-
ally achievable for such category or class, which will re-
sult in reasonable further progress toward the national
goal of eliminating the discharge of all pollutants, as
determined in accordance with regulations issued by the
Administrator pursuant to section 304(b) (2) of this Act,
which such effluent limitations shall require the elimina-
tion of discharges of all pollutants if the Administrator
finds, on the basis of information available to him (in-
cluding information developed pursuant to section 315),
that such elimination is technologically and economic-
ally achievable for category or class of point sources as
determined in accordance with regulations issued by the
Administrator pursuant to section 304(b) (2) of this Act
or (ii) in the case of the introduction of a pollutant into
a publicly owned treatment works which meets the re-
quirements of subparagraph (b) of this paragraph, shall
require compliance with any applicable pretreatment re-
quirements and any other requirement under section 307
of this Act;
(B) [Repealed]
[Sec. 301(b)(2)(B) repealed by PL 97-117]
(C) with respect to all toxic pollutants referred to in
table 1 of Committee Print Number 95-30 of the Com-
mittee on Public Works and Transportation of the House
of Representatives compliance with effluent limitations
in accordance with subparagraph (A) of this paragraph
as expeditiousiy as practicable but in no case later than
three years after the date such limitations are promul-
gated under section 304(b), and in no case later than
March 31, 1989.
[Sec. 301(b)(2)(C) amended by PL 100-4]
[Editor's note: Section 301(0 of PL 100-4 provides:
"(0 Deadlines for Regulations for Certain Toxic Pol-
lutants. The Administrator shall promulgate final
regulations establishing effluent limitations in accord-
ance with sections 301(b)(2)(A) and 307(b)(l) of the
Federal Water Pollution Control Act for all toxic pollu-
tants referred to in table 1 of Committee Print Num-
bered 95-30 of the Committee on Public Works and
Transportation of the House of Representatives which
are discharged from the categories of point sources in
accordance with the following table:
Date by which
the final regulation shall
Category be promulgated
Organic chemicals and plastics
and synthetic fibers December 31. 1986.
Pesticides December 31. 1986."]
(D) for all toxic pollutants listed under paragraph (1)
of subsection (a) of section 307 of this Act which are not
referred to in subparagraph (C) of this paragraph com-
pliance with effluent limitation in accordance with sub-
paragraph (A) of this paragraph as expeditiousiy .as
practicable, but in no case later than three years after
date such limitations are promulgated under section
304(b). and in no case later than March 31. 1989;
[Sec. 301(b)(2)(D) amended by PL 100-4]
(E) as expeditiousiy as practicable but in no case later
than three years after the date such limitations are
promulgated under section 304(b), and in no case later
than March 31, 1989, compliance with effluent limita-
tions for categories and classes of point sources, other
than publicly owned treatment works, which in the case
of pollutants identified pursuant to section 304(a) (4) of
this Act shall require application of the best convention-
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al pollutant control technology as determined in accord-
ance with regulations issued by the Administrator pursuant
to section 304(b)(4) of this Act; and
[301(b)(2)(E) amended by PL 100-4]
(F) for all polluiants-(other than those subject to sub-
paragraphs (C), (D), or. (E) of this paragraph) compli-
ance with effluent limitations in accordance with sub-
paragraph (A) of this paragraph as expeditiously as
practicable but in no case later than 3 years after the
date such limitations are established, and in no case later
than March 31. 1989.
[Sec. 301(b)(2)(F) amended by PL 1
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(i) Sufficient Information. The person petitioning
for listing of an additional pollutant under this subsec-
tion shall submit to the Administrator sufficient infor-
mation to make the determinations required by this
subparagraph.
(ii) Toxic Criteria Determination. The Administra-
tor shall determine whether or not the pollutant meets
the criteria for listing as a toxic pollutant under section
307(a) of this Act.
(iii) Listing as Toxic Pollutant. If the Administra-
tor determines that the pollutant meets the criteria for
listing as a toxic pollutant under section 307(a), the
Administrator shall list the pollutant as a toxic pollutant
under section 307(a).
(tv) Nonconventional Criteria Determination. If
the Administrator determines that the pollutant does not
meet the criteria for listing as a toxic pollutant under
such section and determines that adequate test, methods
and sufficient data are available to make the determina-
tions required by paragraph (2) of this subsection with
respect to the pollutant, the Administrator shall add the
pollutant to the list of pollutants specified in paragraph
(1) of this subsection for which modifications are author-
ized under this subsection.
(C) Requirements for Filing of Petitions. A peti-
tion for listing of a pollutant under this paragraph
(i) must be filed not later than 270 days after the date
of promulgation of an applicable effluent guideline un-
der section 304;
(ii) may be filed before promulgation of such guide-
line; and
(iii) may be filed with an application for a modifica-
tion under paragraph (I) with respect to the discharge of
such pollutant.
(D) Deadline for Approval of Petition. A decision
to add a pollutant to the list of pollutants for which
modifications under this subsection are authorized must
be made within 270 days after the date of promulgation
of an applicable effluent guideline under section 304.
(E) Burden of Proof. The burden of proof for
making the determinations under subparagraph (B)
shall be on the petitioner.
[Sec. 30l(g)(4) added by PL 100-4]
(5) Removal of Pollutants. The Administrator may
remove any pollutant from the list of pollutants for
which modifications are authorized under this subsection
if the Administrator determines that adequate*test meth-
ods and sufficient data are no longer available for deter-
mining whether or not modifications may be granted with
respect to such pollutant under paragraph (2) of this
subsection.
[Sec. 30l(g)(5) added by PL 100-4]
[Editor's note: Section 302(e) of PL 100-4 states:
"(e) Application.
(I) General Rule. Except as provided in paragraph
(2), the amendments made by this section shall apply to
all requests for modifications under section 30 Kg) of the
Federal Water Pollution Control Act pending on the
date of the enactment of this Act and shall not have the
effect of extending the deadline established in section
3010)(D(B)of such Act.
(2) Exception. The amendments made by this
section shall not affect any application for a modifica-
tion with respect to the discharge of ammonia, chlorine.
color. iron. or total phenols (4AAP) under section
30l(g) of the Federal Water Pollution Control Act
pending on the date of the enactment of this Act; except
that the Administrator must-approve or disapprove such
application not later than 365 days after the date of such
enactment."]
(h) The Administrator, with the concurrence of the
State, may issue a permit under section 402 which modi-
fies the requirements of subsection (b) (1) (B) of this sec-
tion with respect to the discharge of any pollutant from
a publicly owned treatment works into marine waters, if
the applicant demonstrates to the satisfaction of the Ad-
ministrator that
(1) there is an applicable water quality standard spe-
cific to the pollutant for which the modification is re-
quested, which has been identified under section 304(a)
(6) of this Act;
(2) the discharge of pollutants in accordance with
such modified requirements will not interfere, alone or in
combination with pollutants from other sources, with the
attainment or maintenance of that water quality which
assures protection of public water supplies and protec-
tion and propagation of a balanced, indigenous popula-
tion of shellfish, fish and wildlife, and allows recreation-
al activities, in and on the water;
(3) the applicant has established a system for mon-
itoring the impact of such discharge on a representative
sample of aquatic biota, to the extent practicable, and
the scope of such monitoring is limited to include only
those scientific investigations which are necessary to
study the effects of the proposed discharge;
[Sec. 301(h)(3) amended by PL 100-4]
(Editor's note: Section 303(b)(2) of PL 100-4 states the
amendment to 301(h)(3). "shall only apply to modifica-
tions and renewals of modifications which are tentatively
or finally approved after the date of the enactment of
this Act. ]
(4) such modified requirements will not result in any
additional requirements on any other point or nonpoim
source;
(5) all applicable pretreatment requirements for
sources introducing waste into such treatment works
will be enforced;
(6) in the case of any treatment works serving a
population of 50,000 or more, with respect to any toxic
pollutant introduced into such works by an industrial
discharger for which pollutant there is no applicable
pretreatment requirement in effect, sources introducing
waste into such works are in compliance with all applica-
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ble pretreatment requirements, the applicant will en-
force such requirements, and the applicant has in effect
a pretreatment program which, in combination with the
treatment of discharges from such works, removes the
same amount of such pollutant as would be removed if
such works were to apply secondary treatment to dis-
charges and if such works had no pretreatment program
with respect to such pollutant;
[New Sec; 301(h)(6) added by PL 100-4]
(7) to the extent practicable, the applicant has estab-
lished a schedule of activities designed to eliminate the
entrance of toxic pollutants from nonindustrial sources
into such treatment works;
(Former Sec. 301(h)(8) deleted by PL 97-117: former
(6) and (7) redesignated as (7) and (8) by PL 100-4]
(8) there will be no new or substantially increased dis-
charges from the point source of the pollutant to which
the modification applies above that volume of discharge
specified in the permit:
(9) the applicant at the time such modification be-
comes effective will be discharging effluent which has
received at least primary or equivalent treatment and
which meets the criteria established under section
304(a)(l) of this Act after initial mixing in the waters
surrounding or adjacent to the point at which such
effluent is discharged.
[Sec. 301(h)(9.) added by PL 100-4]
For the purposes of this subsection the phrase "the
discharge of any pollutant into marine waters" refers to
a discharge into deep waters of the territorial sea or the
\vaters of the contiguous zone, or into saline estuarine
waters where there is strong tidal movement and other
hydrological and geological characteristics which the
Administrator determines necessary to allow compliance
with paragraph (2) of this subsection, and section 101(a)(2)
of this Act For the purposes of paragraph (9), "primary
or equivalent treatment" means treatment by
screening, sedimentation, and skimming adequate to
remove at least 30 percent of the biological oxygen
demanding material and of the suspending solids in the
treatment works influent, and disinfection, where appro-
priate. A municipality which applies secondary treat-
ment shall be eligible to receive a permit pursuant to this
subsection which modifies the requirements of subsec-
tion (b)(l)(B) of this-section with respect to the dis-
charge of any pollutant from any treatment works owned
by such municipality into marine waters. No permit
issued under this subsection shall authorize the dis-
charge of sewage sludge into marine waters. In order for
a permit to be issued under this subsection for the
discharge of a pollutant into marine waters, such marine
waters must exhibit characteristics assuring that water
providing dilution does not contain significant amounts
of previously discharged effluent from such treatment
works. No permit issued under this subsection shall
authorize the discharge of any pollutant into saline
estuarine waters which at the time of application do not
support a balanced indigenous population of shellfish,
fish and wildlife, or allow recreation in and on the waters
or which exhibit ambient water quality below applicable
water quality standards adopted for the protection of
public water supplies, shellfish, fish and wildlife or
recreational activities or such other standards necessary
to assure support and protection of such uses. The
prohibition contained in the preceding sentence shall
apply without regard to the presence or absence of a
causal relationship between such characteristics and the
applicant's current or proposed discharge. Notwithstand-
ing any other provisions of this subsection, no permit
may be issued under this subsection for discharge of a
pollutant into the New York Bight Apex consisting of
the ocean waters of the Atlantic Ocean westward of 73
degrees 30 minutes west longitude and northward of 40
degrees 10 minutes north latitude.
[Sec. 301(h) amended by PL 97-117; PL 100-4]
[Editor's note: Section 303(g) of PL 100-4 states the
amendments to 301 (h) and (h)(2), as well as the provisions
of (h)(6) and (h)(9), "shall not apply to an application
for a permit under section 301(h) of the Federal Water
Pollution Control Act which has been tentatively or
finally approved by the Administrator before the date of
the enactment of this Act; except that such amendments
shall apply to renewals of such permits after such date of
enactment."]
(i) (1) Where construction is required in order for a
planned or existing publicly owned treatment works to
achieve limitations under subsection (b) (1) (B) or (b) (1)
(C) of this section, but (A) construction cannot be com-
pleted within the time required in such subsection, or
(B) the United States has failed to make financial assis-
tance under this Act available in time to achieve such
limitations by the time specified in such subsection, the
owner or operator of such treatment works may request
the Administrator (or if appropriate the State) to issue a
permit pursuant to section 402 of this Act or to modify a
permit issued pursuant to that section to extend such
time for compliance. Any such request shall be filed
with the Administrator (or if appropriate the State)
within 180 days after the date of enactment of the
Water Quality Act of 1987. The Administrator (or if
appropriate the State) may grant such request and issue
or modify such a permit, which shall contain a schedule
of compliance for the publicly owned treatment works
based on the earliest date by which such financial
assistance will be available from the United States and
construction can be completed, but in no event later than
July 1, 1988. and shall contain such other terms and
conditions, including those necessary to carry out subsec-
tions (b) through (g) of section 201 of this Act. section
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307 of this Act. and such interim effluent limitations
applicable to that treatment works as the Administrator
determines are necessary to carry out the provisions of
this Act.
[Sec. 301(i)(l)-amended by PL 100-4]
[Editor's note: Section 304(b) of PL 100-4 states the
amendment to 301(i)(l). "shall not apply to those treat-
ment works which are subject to a compliance schedule
established before the date of the enactment of this Act
by a court order or a final administrative order."]
(2) (A) Where a point source (other than a publicly
o^ned treatment works) will not achieve the require-
ments of subsections (b) (1) (A) and (b) (l).(C) of this
section and
(i) if a permit issued prior to July 1. 1977, to such
point source .is based upon a discharge into a publicly
owned treatment works; or
(ii) if such point source (other than a publicly owned
treatment works) had before July 1, 1977, a contract
(enforceable against such point source) to discharge into
a publicly owned treatment works; or
(iii) if either an application made before July 1, 1977,
for a construction grant under this Act for a publicly
owned treatment works, or engineering or architectural
plans or working drawings made before July 1, 1977,
for a publicly owned treatment works, show that such
point source was to discharge into such publicly owned
treatment works, and such publicly owned treatment
works is presently unable to accept such discharge with-
out construction, and in the case of a discharge to an ex-
isting publicly owned treatment works, such treatment
works has an extension pursuant to paragraph (1) of this
subsection, the owner or operator of such point source
may request the Administrator (or if appropriate the
State) to issue or modify such a permit pursuant to such
section 402 to extend such time for compliance. Any
such request shall be filed with the Administrator (or if
appropriate the State) within 180 days after the date of
enactment of this subsection or the filing of a request by
the appropriate publicly owned treatment works under
paragraph (1) of this subsection, whichever is later.
If the Administrator (or if appropriate the State) finds
that the owner or operator of such point source has acted
in good faith, he may grant such request and issue or
modify such a permit,'which shall contain a schedule of
compliance for the point source to achieve the require-
ments of subsections (b) (1) (A) and (C) of this section
and shall contain such other terms and conditions, in-
cluding pretreatment and interim effluent limitations
and water conservation requirements applicable to that
point source, as the Administrator determines are
necessary to earn/ out the provisions of this Act.
(B) No time modification granted by the Adminis-
trator (or if appropriate the State) pursuant to para-
graph (2) (A) of this subsection shall extend beyond the
earliest date practicable for compliance or beyond the
date of any extension granted to the appropriate pub-
licly owned treatment works pursuant to paragraph (1)
of this subsection, but in no event shall it extend beyond
July 1. 1988; and no such time modification shall be
granted unless (i) the publicly owned treatment works
will be in operation and available to the point source be-
fore July I. 1988, and will meet the requirements to sub-
sections (b) (1) (B) and (C) of this section after receiving
the discharge from that point source; and (ii) the point
source and the publicly owned treatment works have en-
tered into an enforceable contract requiring the point
source to discharge into the publicly owned treatment
works; the owner or operator of such point source to
pay the costs required under section 204 of this Act, and
the publicly owned treatment works to accept the dis-
charge from the point source; and (iii) the permit for
such point source requires point source to meet all re-
quirements under section 307 (a) and (b) during the
period of such time modification.
[Sec. 301(i) amended by PL 97-117]
[Editor's note: Section 21 of PL 97-117 in addition
to extending the compliance date from July 1, 1983 to
July 1, 1988, also provides: "The amendment made by
this subsection shall not be interpreted or applied to
extend the date for compliance with section 301(b)(l)
(B) or (C) of the Federal Water Pollution Control
Act beyond schedules for compliance in effect as of the
date of enactment of this Act, except in cases where re-
ductions in the amount of financial assistance under this
Act or changed conditions affecting the rate of construc-
tion beyond the control of the owner or operator will
make it impossible to complete construction by July 1.
1983."]
(j) (1) Any application Hied under this section for a
modification of the provisions of
(A) subsection (b)(l)(B) under subsection (h) of this
section shall be filed not later thatfn| the 365th day which
begins after the date of enactment of the Municipal
Wastewater Treatment Construction Grant Amend-
ments of 1981, except that a publicly owned treatment
works which prior to December 31, 1982, had a contrac-
tual arrangement to use a portion of the capacity of an
ocean outfall operated by another publicly owned treat-
ment works which has applied for or received modifica-
tion under subsection (h), may apply for a modification
of subsection (h) in its own right not later than 30 days
after the date of the enactment of the Water Quality Act
of 1987;
[Sec. 301(j)(l)(A) amended by PL 100-4]
[Sec. 301(jXD(A) revised by PL 97-117]
[Editor's note: Section 22(e) of PL 97-117 provides:
"(e) The amendments made by this section shall take
effect on the date of enactment of this Act. except that
no applicant, other than the city of Avalon, California.
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who applies after the date of enactment of this Act for a
permit pursuant to subsection (h) of section 301 of the
Federal Water Pollution Control Act which modifies the
requirements of subsection (b)(l)(B) of section 301 of
such Act shall receive such permit during the one-year
period which begins on the date of enactment of this
Act."]
(B) subsection (b) (2) (A) as it applies to pollutants
identified in subsection (b) (2) (F) shall be filed not later
than 270 days after the date of promulgation of an ap-
plicable effluent guideline under section 304 or not later
than 270 days after the date of enactment of the Clean
Water Act of 1977, whichever is later.
(2) Subject to paragraph (3) of this section, any
application for a modification filed under subsection (g)
of this section shall not operate to stay any requirement
under this Act, unless in the judgment of the Adminis-
trator such a stay or the modification sought will not
result in the discharge of pollutants in quantities which
may reasonably be anticipated to pose an unacceptable
risk to human health or the environment because of
bioaccumulation, persistency in the environment, acute
toxicity, chronic toxicity (including carcinogenicity, mu-
tagenicity or teratogenicity), or synergistic propensities,
and that there is a substantial likelihood that the appli-
cant will succeed on the merits of such application. In
the case of an application filed under subsection (g) of
this section, the Administrator may condition any stay
granted under this paragraph on requiring the filing of a
bond or other appropriate security to assure timely
compliance with the requirements from which a modifi-
cation is sought.
(3) Compliance Requirements Under Subsection
(g).-
(A) Effect of Filing. An application for a modifica-
tion under subsection (g) and a petition for listing of a
pollutant as a pollutant for which modifications are
authorized under such subsection shall not stay the
requirement that the person seeking such modification or
listing comply with effluent limitations under this Act
for all pollutants not the subject of such application or
petition.
(B) Effect of Disapproval. Disapproval of an appli-
cation for a modification under subsection (g) shall not
stay the requirement that the person seeking such modi-
fication comply with-all applicable effluent limitations
under this Act.
[Sec. 301(j)(3) and (4) added by PL 100-4]
(4) Deadline for Subsection (g) Decision. An
application for a modification with respect to a pollutant
filed under subsection (g) must be approved or disap-
proved not later than 365 days after the date of such
filing: except that in any case in which a petition for
listing such pollutant as a pollutant for which modifica-
tions are authorized under such subsection is approved.
such application must be approved or disapproved not
later than 365 days after the date of approval of such
petition.
(k) In the case of any facility subject to a permit un-
der section 402 which proposes to comply with the re-
quirements of subsection (b)(2)(A) or (b)(2)(E) of this
section by replacing existing production capacity with an
innovative production process which will result in an
effluent reduction significantly, greater than that re-
quired by the limitation otherwise applicable to such
facility and moves toward the national goal of eliminat-
ing the discharge of all pollutants, or with the installa-
tion of an innovative control technique that has a sub-
stantial likelihood for enabling the facility to comply
with the applicable effluent limitation by achieving a
significantly greater effluent reduction than that re-
quired by the applicable effluent limitation and moves
toward the national goal of eliminating the discharge of
all pollutants, or by achieving the required reduction
with an innovative system that has the potential for
significantly lower costs than the systems which have
been determined by the Administrator to be economical-
ly achievable, the Administrator (or the State with an
approved program under section 402, in consultation
with the Administrator) may establish a date for compli:
ance under subsection (b)(2)(A) or (b)(2)(E) of this
section no later than two years after the date for compli-
ance with such effluent limitation which would otherwise
be applicable under such subsection, if it is also deter-
mined that such innovative system has the potential for
industrywide application.
[Sec. 301 (k) amended by PL 100-4]
(I) Other than as provided in subsection (n) of this
section, the Administrator may not modify any require-
ment of this section as it applies to any specific pollutant
which is on the toxic pollutant list under section-
3Q7(a)( l)of this Act.
[Sec. 301(1) amended by PL 100-4]
(m)(l) The Administrator, with the concurrence of the
State, may issue a permit under section 402 which
modifies the requirements of subsections (b)(l)(A) and
(b)(2)(E) of this section, and of section 403, with respect
to effluent limitations to the extent such limitations
relate to biochemical oxygen demand and pH from
discharges by an industrial discharger in such State into
deep waters of the territorial seas, if the applicant
demonstrates and the Administrator finds that
[Sec. 301 (m) added by PL 97-440]
(A) the facility for with modification is sought is
covered at the time of the enactment of this subsection
by National Pollutant Discharge Elimination System
permit number CAOOOS894 or CA0005282;
(B) the energy and environmental costs of meeting
such requirements of subsections (b)(l)(A) and
(b)(2)(E) and section 403 exceed by an unreasonable
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amount the benefits to be obtained, including the objec-
tives of this Act;
(C) the applicant has established a system for moni-
toring the impact of such discharges on a representative
sample of aquatic biota;
(D) such modified requirements will not result in any
additional requirements on any other point or nonpoint
source;
(E) there will be no new or substantially increased
discharges from the point source of the pollutant to
which the modification applies above that volume of
discharge specified in the permit;
(F) the discharge is into waters where there is strong
tidal movement and other hydrological and geological
characteristics which are necessary to allow compliance
with this subsection and section 101(a)(2) of this Act;
(G) the applicant accepts as a condition to the permit
a contractural obligation to use funds in the amount
required (but not less than $250,000 per year for ten
years) for research and development of water pollution
control technology, including but not limited to closed
cycle technology;
(H) the facts and circumstances present a unique
situation which, if relief is granted, will not establish a
precedent or the relaxation of the requirements of this
Act applicable to similarly situated discharges; and
(I) no owner or operator of a facility comparable to
that of the applicant situated in the United States has
demonstrated that it would be put at a competitive
disadvantage to the applicant (or the parent company or
any subsidiary thereof) as a result of the issuance of a
permit under this subsection.
(2) The effluent limitations established under a permit
issued under paragraph (1) shall be sufficient to imple-
ment the applicable State water quality standards, to
assure the protection of public water supplies and protec-
tion and propagation of a balanced, indigenous popula-
tion of shellfish, fish, fauna, wildlife, and other aquatic
organisms, and to allow recreational activities in and on
the water. In setting such limitations, the Administrator
shall take into accout any seasonal variations and the
need for an adequate margin of safety, considering the
lack of essential knowledge concerning the relationship
between effluent limitations and water quality and the
lack of essential knowledge of the effects of discharges
on beneficial uses of the receiving waters.
(3) A permit under this subsection may be issued for a
period not to exceed five years, and such a permit may
be renewed for one additional period not to exceed five
years upon a demonstration by the applicant and a
finding by the Administrator at the time of application
for any such renewal that the provisions of this subsec-
tion are met.
(4) The Administrator may terminate a permit issued
under this subsection if the Administrator determines
that there has been a decline in ambient water quality of
the receiving waters during the period of the permit even
if a direct cause and effect relationship cannot be shown.
Provided. That if the effluent from a source with a
permit issued under this subsection is contributing to
a decline in ambient water quality of the receiving waters.
the Administrator shall terminate such permit.
(n) Fundamentally Different Factors.
[Sec. 301(n) added by PL 100-4]
(1) General Rule. The Administrator, with the
concurrence of the State, may. establish an alternative
requirement under subsection (b)(2) or section 30^(0)
for a facility that modifies the requirements of national
effluent limitation guidelines or categorical pretreatment
standards that would otherwise be applicable to such
facility, if the owner or operator of such facility demon-
strates to the satisfaction of the Administrator that
(A) the facility is fundamentally different with re-
spect to the factors (other than cost) specified in section
304(b) or 304(g) and considered by the Administrator in
establishing such national effluent limitation guidelines
or categorical pretreatment standards;
(B) the application
(i) is based solely on information and supporting data
submitted to the Administrator during the rulemaking
for establishment of the applicable national effluent
limitation guidelines or categorical pretreatment stand-
ard specifically raising the factors that are fundamental-
ly different for such facility; or
(ii) is based on information and supporting data re-
ferred to in clause (i) and information and supporting
data the applicant did not have a reasonable opportunity
to submit during such rulemaking;
(C) the alternative requirement is no less stringent.
than justified by the fundamental difference; and
(D) the alternative requirement will not result in a
non-water quality environmental impact which is mar-
kedly more adverse than the impact considered by the
Administrator in establishing such national effluent limi-
tation guideline or categorical pretreatment standard.
(2) Time Limit for Applications. An application
for an alternative requirement which modifies the re-
quirements of an effluent limitation or pretreatment
standard under this subsection must be submitted to the
Administrator within 180 days after the date on which
such limitation or standard is established or revised, as
the case may be.
(3) Time Limit for Decision. The Administrator
shall approve or deny by final agency action an applica-
tion submitted under this subsection within 180 days
after the date such application is filed with the
Administrator.
(4) Submission of Information. The Administrator
may allow an applicant under this subsection to submit
information and supporting data until the earlier of the
date the application is approved or denied or the last day
that the Administrator has to approve or deny such
application.
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(5) Treatment of Pending Applications. For the
purposes of this subsection, an application for an alterna-
tive requirement based on fundamentally different fac-
tors which is pending on the date of the enactment of
this subsection shall be treated as having been submitted
to the Administrator OH the 180th day following such
date of enactment. The applicant may amend the appli-
cation to take into account the provisions of this
subsection.
(6) Effect of Submission of Application. An appli-
cation for an alternative requirement under this subsec-
tion shall not stay the applicant's obligation to comply
with the effluent limitation guideline or categorical pre-
treatment standard which is the subject of the
application.
(7) Effect of Denial. If an application for an
alternative requirement which modifies the requirements
of an effluent limitation or pretreatment standard under
this subsection is denied by the Administrator, the appli-
cant must comply with such limitation or standard as
established or revised, as the case may be.
(8) Reports. Every 6 months after the date of the
enactment of this subsection, the Administrator shall
submit to the Committee on Environment and Public
Works of the Sentte and the Committee on Public
Works and Transportation of the House of Representa-
tives a report on the status of applications for alternative
requirements which modify the requirements of effluent
limitations under section 301 or 304 of this Act or any
national categorical pretreatment standard under section
307(b) of this Act filed before, on, or after such date of
enactment.
(o) Application Fees. The Administrator shall
prescribe and collect from each applicant fees reflecting
the reasonable administrative costs incurred in reviewing
and processing applications for modifications submitted
to the Administrator pursuant to subsections (c), (g), (i),
(k), (m), and (n) of section 301, section 304(d)(4), and
section 316(a) of this Act. All amounts collected by the
Administrator under this subsection shall be deposited
into a special fund of the Treasury entitled "Water
Permits and Related Services" which shall thereafter be
available for appropriation to carry out activities of the
Environmental Protection Agency for which such fees
were collected.
[Sec. 30l(o> added by PL 100-4]
(p) Modified Permit for Coal Remining Operations.
[Sec. 301(p) added by PL 100-4]
(1) In Generti. Subject to paragraphs (2) through
(4) of this subsection, the Administrator, or the State in
any case which the State has an approved permit pro-
gram under section 402(b), may issue a permit, under
section 402 which modifies the requirements of subsec-
tion (b)(2)(A) of this section with respect to the pH level
of any pre-existing discharge, and with respect to pre-
existing discharges of iron and manganese from the
remined area of any coal remining operation or with
respect to the pH level or level of iron or manganese :n
any pre-existing discharge affected by the remining oper-
ation. Such modified requirements shall apply the best
available technology economically achievable on a case-
by-case basis, using best professional judgment, to set
specific numerical effluent limitations in each permit.
(2) Limitations. The Administrator or the State
may only issue a permit pursuant to paragraph (1) if the
applicant demonstrates to the satisfaction of the Admin-
istrator or the State, as the case may be, that the coal
remining operation will result in the potential for im-
proved water quality from the remining operation but in
no event shall such a permit allow the pH level of any
discharge, and in no event shall such a permit allow the
discharges of iron and manganese, to exceed the levels
being discharged from the remined area before the coal
remining operation begins. No discharge from, or affect-
ed by, the remining operation shall exceed State water
quality standards established under section 303 of this
Act.
(3) Definitions. For purposes of this subsection
(A) Coal Remining Operation. The term "coal
remining operation" means a coal mining operation
which begins after the date of the enactment of this
subsection at a site on which coal mining was conducted
before the effective date of the Surface Mining Control
and Reclamation Act of 1977.
(B) Remined Area. The term "remined area" means
only that area of any coal remining operation on which
coal mining was conducted before the effective date of
the Surface Mining Control and Reclamation Act of
1977.
(C) Pre-existing Discharge. The term "pre-existing
discharge" means any discharge at the time of permit
application under this subsection.
(4) Applicability of Strip Mining Laws. Nothing in
this subsection shall affect the application of the Surface
Mining Control and Reclamation Act of 1977 to any
coal remining operation, including the application of
such Act to suspended solids.
WATER QUALITY RELATED EFFLUENT
LIMITATIONS
Sec. 302. (a) Whenever, in the judgment of the Ad-
ministrator or as identified under section 304(1) dis-
charges of pollutants from a point source or group of
point sources, with the application of effluent limitations
required under section 301(b)(2) of this Act, would
interfere with the attainment or maintenance of that
water quality in a specific portion of the navigable
waters which shall assure protection of public health,
public water supplies, agricultural and industrial uses,
and the protection and propagation of a balanced popu-
lation of shellfish, fish and wildlife, and allow recreation-
al activities in and on the water, effluent limitations
(including alternative effluent control strategies) for
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WATER POLLUTION ACT
such point source or sources shall be established which
can reasonably be expected to contribute to the attain-
ment or maintenance of such water quality.
[Sec. 302(a) amended by PL 100-4]
(b) Modifications of Effluent Limitations.
(I) Notice and Hearing. Prior to establishment of
any effluent limitation pursuant to subsection (a) of this
section, the Administrator shall publish such proposed
limitation and within 90 days of such publication hold a
public hearing.
(2) Permits.
(A) No Reasonable Relationship. The Administra-
tor, with the concurrence of the State, may issue a
permit which modifies the effluent limitations required
by subsection (a) of this section for pollutants other than
toxic pollutants if the applicant demonstrates at such
hearing that (whether or not technology or other alterna-
tive control strategies are available) there is no reason-
able relationship between the economic and social costs
and the benefits to be obtained (including attainment of
the objective of this Act) from achieving such limitation.
(B) Reasonable Progress. The Administrator, with
the concurrence of the State, may issue a permit which
modifies the effluent limitations required by subsection
(a) of this section for toxic pollutants for a single period
not to exceed 5 years if the applicant demonstrates to the
satisfaction of the Administrator that such modified
requirements (i) will represent the maximum degree of
control within the economic capability of the owner and
operator of the source, and (ii) will result in reasonable
further progress beyond the requirements of section
301(b)(2) toward the requirements of subsection (a) of
this section.
[Sec. 302(b) revised by PL 100-4]
(c) The establishment of effluent limitations under
this section shall not operate to delay the application of
any effluent limitation established under section 301 of
this Act.
TOXIC AND PRETREATMENT
EFFLUENT STANDARDS
Sec. 307. (a)(l) On and after the date of enactment of
the-Clean Water Act of 1977, the list of toxic pollutants
or combination of pollutants subject to this Act shall
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consist of those toxic pollutants listed in table 1 of
Committee Print Numbered 95-30 of the Committee on
Public Works and Transportation of the House of Repre-
sentatives, and the Administrator shall publish, not later
than the thirtieth day after date of enactment of the
Clean Water Act of 1977, that list. From time to time
thereafter, the Administrator may revise such list and
the Administrator is authorized to add to or remove
from such list any pollutant. The Administrator in pub-
lishing any revised list, including the addition or removal
of any pollutant from such list, shall take into account
the toxicity of the pollutant, its persistence, degradabi-
lity. the usual or potential presence of the affected
organisms in any waters, the importance of the affected
organisms, and the nature and extent of the effect of the
toxic pollutant on such organisms. A determination of
the Administrator under this paragraph shall be final
except that if. on judicial review, such determination was
based on arbitrary and capricious action of the Adminis-
trator, the Administrator shall make a redetermination.
(Editor's note: Table 1 is published at the end of the
Act. See also §301(b)(2)(C) editor's note and the provi-
sions of §519 of PL 100-4 published at the end of this
Act.)
(2) Each toxic pollutant listed in accordance with
paragraph (1) of this subsection shall be subject to ef-
fluent limitations resulting from the application of the
best available technology economically achievable for
the applicable category or class of point sources estab-
lished in accordance with section 301(b) (2) (A) and
3W(b) (2) of this Act. The Administrator, in his discre-
tion, may publish in the Federal Register a proposed ef-
fluent standard (which may include a prohibition) estab-
lishing requirements for a toxic pollutant which, if an
effluent limitation is applicable to a class or category of
point sources, shall be applicable to such category or
class only if such standard imposes more stringent re-
quirements. Such published effluent standard (or
prohibition) shall take into account the toxicity of the
pollutant, its persistence, degradability, the usual or po-
tential presence of the affected organisms in any waters,
the importance of the affected organisms and the nature
and extent of the effect of the toxic pollutant on such
organisms, and the extent txrwhich effective control is
being or may be achieved under other regulatory
authority. The Administrator shall allow a period of not
less than sixty days following publication of any such
proposed effluent standard (or prohibition) for written
comment by interested persons on such proposed stan-
dard. In addition, if within thirty days of publication of
any such proposed effluent standard (or prohibition)
any interested person so requests, the Administrator
shall hold a public hearing in connection therewith.
Such a public hearing shall provide an opportunity for
oral and written presentations, such cross-examination
as the Administrator determines is appropriate on dis-
puted issues of material fact, and the transcription of a
verbatim record which shall be available to the public.
After consideration of such comments and any informa-
tion and material presented at any public hearing held
on such proposed standard or prohibition, the Adminis-
trator shall promulgate such standards (or prohibition)
with such modifications as the Administrator finds are
justified. Such promulgation by the Administrator
shall be made within two hundred and seventy days af-
ter publication of proposed standard (or prohibition).
Such standard (or prohibition) shall be final except that
if, on judicial review, such standard was not based on
substantial evidence, the Administrator shall promul-
gate a revised standard. Effluent limitations shall be
established in accordance with sections 30l(b) (2) (A)
and 304(b) (2) for every toxic pollutant referred to in
table 1 of Committee Print Numbered 95-30 of the
Committee on Public Works and Transportation of the
House of Representatives as soon as practicable after
the date of enactment of the Clean Water Act of 1977^
but no later than July 1, 1980. Such effluent limitations
or effluent standards (or prohibitions) shall be estab-
lished for every other toxic pollutant listed under para-
graph (1) of this subsection as soon as practicable after
it is so listed.
(3) Each such effluent standard (or prohibition) shall
be reviewed and, if appropriate, revised at least every
three years.
(4) Any effluent standard promulgated under this
section shall be at that level which the Administrator de-
termines provides an ample margin of safety.
(5) When proposing or promulgating any effluent
standard (or prohibition) under this section, the
Administrator shall designate the category or categories
of sources to which the effluent standard (or prohibi-
tion) shall apply. Any disposal of dredged material may
be included in such a category of sources after consulta-
tion with the Secretary of the Army.
(6) Any effluent standard (or prohibition) established
pursuant to this section shall take effect on such date or
dates as specified in the order promulgating such stan-
dard, but in no case, more than one year from the date
of such promulgation. If the Administrator determines
that compliance within one year from the date of
promulgation is technologically infeasible for a category
of sources, the Administrator may establish the effec-
tive date of the effluent standard (or prohibition) for
such category at the earliest date upon which compli-
ance can be feasibly attained by sources within such
category, but in no event more than three years after the
date of such promulgation.
(7) Prior to publishing any regulations pursuant to
this section the Administrator shall, to the maximum ex-
tent practicable within the time provided, consult with
appropriate advisory committees, States, independent
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experts, and Federal departments and agencies.
(b) (I) The Administrator shall, withi-n one hundred
and eighty days after the date of enactment of this title
and from time to time thereafter, publish proposed
regulations establishing pretreatment standards for in-
troduction of pollutants into treatment works (as de-
fined in section 212 of this Act) which are publicly
owned for those pollutants which are determined not to
be susceptible to treatment by such treatment works or
which would interfere with the operation of such treat-
ment works. Not later than ninety days after such pub-
lication, and after opportunity for public hearing, the
Administrator shall promulgate such pretreatment stan-
dards. Pretreatment standards under this subsection
shall specify a time for compliance -not to exceed three
years from the date of promulgation and shall be estab-
lished to present the discharge of any pollutant through
treatment works (as defined in section 212 of this Act)
which are publicly owned, which pollutant interferes
with, passes through, or otherwise is incompatible with
such works. If. in the case of any toxic pollutant under
subsection (a) of this section introduced by a source into
a publicly owned treatment works, the treatment by
such works removes all or any part of such toxic pol-
lutant and the discharge from such works does not vio-
late that effluent limitation or standard which would be
applicable to such lo.xic pollutant if it were discharged
by such source other than through a publicly owned
treatment works, and does not prevent sludge use or dis-
posal by such works in. accordance wiih section 405 of
this Act. then the pretreatment requirements for the
sources actuallv discharging such toxic pollutant into
such publicly owned treatment works may be revised by
the owner or operator of such works to reflect the re-
moval of such toxic pollutant by such works."
(2) The Administrator shall, from time to time, as
control technology, processes, operating methods, or
other alternative change, revise such standards follow-
ing the procedure established by this subsection for
promulgation of such standards.
(3) When proposing or promulgating any pretreat-
ment standard under this section, the Administrator
shall designate the category or categories of sources to
w hich such standard shall apply.
(4) Nothing in this subsection shall affect any pre-
treatment requirement established by any State or local
law not in conflict with any pretreatment standard
established under this subsection.
(c) In order to insure that any source introducing pol-
lutants into a publicly owned treatment works, which
source would be a new source subject to section 306 if it
were to discharge pollutants, will not cause a violation
of the effluent limitations established for any such treat-
ment works, the Administrator shall promulgate pre-
treatment standards tor the category of such sources
simultaneously with the promulgation of standards of
performance under seuion 306 tor the equivalent .ate-
gorv ot new source-). Such pretrcatmcnt standard-. shall-
prevent the discharge of am pollutant into such treat-
ment works, which pollutant may interfere with, pass
through, or otherwise be incompatible with such works.
(d) After the effective date ot any effluent standard
or prohibition or pretreatment standard promulgated
under this section, it -hall be unlawtui for anv owner or
operator ot any source to operate an> source in viola-
tion of any such effluent standard or promoition or pre-
treatment standard.
(e) Compliance Date Extension for Innovative Pre-
treatment Systems. In the case of any existing facility
that proposes to comply with the pretreatment standards
of subsection (b) of this section by applying an innova-
tive system that meets the requirements of section
301(k) of this Act, the owner or operator of the publicly
owned treatment works receiving the treated effluent
from such facility may extend the date for compliance
with the applicable pretreatment standard established
under this section for a period not to exceed 2 years
(1) if the Administrator determines that the innbva-
tive system has the potential for industrywide applica-
tion, and
(2) if the Administrator (or the State in consultation
with the Administrator, in any case in which the State
has a pretreatment program approved by the Adminis-
trator)
(A) determines that the proposed extension will not
cause the publicly owned treatment works to be in
violation of its permit under section 402 or of section 405
or to contribute to such a violation, and
(B concurs with the proposed extension.
[307(e) added by PL 100-4]
[Editor's note: Section 309(b) of PL 100-4 provides:
"(b) Increase in EPA Employees. The Administra-
tor shall take such actions as may be necessary to
increase the number of employees of the Environmental
Protection Agency in order to effectively implement
pretreatment requirements under section 307 of the
Federal Water Pollution Control Act."]
INSPECTIONS, MONITORING AND ENTRY
Sec. 308. (a) Whenever required to carry out the ob-
jective of this Act, including but not limited to (I) de-
veloping or assisting in the development of anv effluent
limitation, or other limitation, prohibition, or effluent
standard, pretreatment standard, or standard of per-
formance under this Act; (2) determining whether any
person is in violation of any such effluent limitation, or
other limitation, prohibition or effluent standard, pre-
treatment standard, or standard of performance: (3)
any requirement established under this section: or (4)
carrying out sections 305, 311, 402, 404 (relating to
State permit programs), 405, and 504 of this Act
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(Sec. 308(a)(4) amended by PL 100-4]
(\) (he Administrator shall require the owner or
operator of anv point Miurce to (i) establish and main-
tain >uch records, (ii) make als. and in such manner as ;he Administrator shall
prescribe), and (,v) provide such other information as he
mav reasonable require: and
tB) the Administrator or his authorized representa-
tive (including an authorized contractor acting as a
representative of the Administrator), upon presentation
of his credentials
«i) shall have a right of entry to, upon, or through
any premises in which an effluent source is located or in
which any records required to be maintained under
clause (A) of this subsection are located, and
(11) may at reasonable times have access to and copy
any records, inspect any monitoring equipment or
method required under clause (A), and sample any ef-
fluents which the owner or operator of such source is re-
quired to sample under such clause.
[Sec. 308(a)(B) amended by PL 100-4]
(b) Any records, reports, or information obtained
under this section (1) shall, in the case of effluent data,
be related to any applicable effluent limitations, toxic,
pretreatment. or new- source performance standards,
and (2) shall be available to the public, except that upon
a showing satisfactory to the Administrator by any per-
son that records, reports, or information, or particular
part thereof (other than effluent data), to which the Ad-
ministrator has access under this section, if made public
would divulge methods or processes entitled to protec-
tion as trade secrets of such person, the Administrator
shall consider such record, report, or information, or
particular portion thereof confidential in accordance
with the purposes of section 1905 of title 18 of the
United States Code. Any authorized representative of
the Administrator (including an authorized contractor
acting as a representative of the Administrator) who
knowingly or willfully publishes, divulges, discloses, or
makes known in any manner or to any extent not
authorized by law any information which is required to
be considered confidential under this subsection shall be
fined not more than SI,000 or imprisoned not more than
1 year, or both. Nothing in this subsection shall prohibit
the Administrator or an authorized representative of the
Administrator (including any authorized contractor act-
ing as a representative of the Administrator) from dis-
closing records, reports, or information to other officers,
employees, or authorized representatives of the United
States concerned with carrying out this Act or when
relevant in any proceeding under this Act.
[308(b) amended by PL 100-4]
(c) Each State mav develop and submit to the Ad-
ministrator procedures under State law for inspection,
monitoring, and entry with respect to point sources lo-
cated in such State. If the Administrator finds that the
procedures and the law of any State relating to inspec-
tion, monitoring, and entry are applicable to at least the
same extent as those required by this section, such State
is authorized to apply and enforce its procedures for in-
spection, monitoring, and entry with respect TO point
sources located in such State (except with respect to
point sources owned or operated by the United States).
(d) Access by Congress. Notwithstanding any
limitation contained in this section or any other provision
of law, all information reported to or otherwise obtained
by the Administrator (or any representative of the Ad-
ministrator) under this Act shall be made available,
upon written request of any duly authorized committee
of Congress, to such committee.
[308(d) added by PL 100-4]
FEDERAL ENFORCEMENT
[Editor's note: See also Section 318 of PL 100-4, pub-
lished at the end of this Act, for applicability of this
Section to the Unconsolidated Quaternary Aquifer,
Rockaway River Basin, New Jersey.]
Sec. 309. (a) (1) Whenever, on the basis of any in-
formation available to him, the Administrator finds
that any person is in violation of any condition or
limitation which implements section 301, 302. 306,: 307,
308, 318. or 405 of this Act in a permit issued by a State
under an approved permit program under section 402 or
404 of this Act. he shall proceed under his authority in
paragraph (3) of this subsection or he shall notify the
person in alleged violation and such State of such find-
ing. If beyond the thirtieth day after the Administra-
tor's notification the State has not commenced ap-
propriate enforcement action, the Administrator shall
issue an order requiring such person to comply with
such condition or limitation or shall bring a civil action
in accordance with subsection (b) of this section.
(2) Whenever, on the the basis of information avail-
able to him. the Administrator finds that violations of
permit conditions or limitations as set forth in para-
graph (I) of this subsection are so widespread that such
violations appear to result from a failure of the State to
enforce such permit conditions or limitations effec-
tively, he shall so notify the State. If the Administrator
finds such failure extends beyond the thirtieth day after
such notice, he shall give public notice of such finding.
During the period beginning with such public notice and
ending when such State satisfies the Administrator that
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it will enforce such conditions and limitations (hereafter
referred to in this section as the period of "federally as-
sumed enforcement"), except where an extension has
been granted under paragraph (5) (B) of this subsection,
the Administrator shall enforce any permit condition or
limitation with respect to any person
(A) by issuing an order to comply with such condi-
tion or limitation, or
(B) by bringing a civil action under subsection (b) of
this section.
(3) Whenever on the basis of any information avail-
able to him the Administrator finds that any person is in
violation of section 301, 302, 306, 307, 308, 318, or
405 of this Act, or is in violation of any permit condi-
tion or limitation implementing any of such sections in a
permit issued under section 402 of this Act by him or by
a State or in a permit issued under section 404 of this
Act by a State, he shall issue an order requiring such
person to comply with such section or requirement, or
he shall bring a civil action in accordance svith subsec-
tion (b) of this section.
(4) A copy of any order issued under this subsection
shall be sent immediately by the Administrator to the
State in which the violation occurs and other affected
States. In any case in which an order under this subsec-
tion (or notice to a violator under paragraph (I) of this
subsection) is issued to a corporation, a copy of such
order (or notice) shall be served on any appropriate cor-
porate officers. An order issued under this subsection
relating to a violation of section 308 of this Act shall not
take effect until the person to whom it is issued has had
an opportunity to confer with the Administrator con-
cerning the alleged violation.
(5) (A) Any order issued under this subsection shall
be by personal service, shall state with reasonable
specificity the nature of the violation, and shall specify a
time for compliance not to exceed thirty days in the case
of a violation of an interim compliance schedule or
operation and maintenance requirement and not to ex-
ceed a time the Administrator determines to be reason-
able in the case of a violation of a final deadline, taking
into account the seriousness of the violation and any
good faith efforts to comply with applicable require-
ments.
(B) The Administrator may, if he determines (i) that
any person who is a violator of. or any person who is
otherwise not in compliance with, the time requirements
under this Act or in any permit issued under this Act,
has acted in good faith, and has made a commitment (in
the form of contracts or other securities) of necessary
resources to achieve compliance by the earliest possible
date after July 1, 1977, but not later than April 1, 1979;
(ii) that any extension under this provision will not re-
sult in the imposition of any additional controls on any
other point or nonpoint source; (iii) that an application
for a permit under section 402 of this Act *as filed for
such person prior to December 31, 1974; arid
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shall be punished by a fine of not less than S2.500 nor
more than 525,000 per day of violation, or by imprison-
ment for not more than 1 year, or by both. If a convic-
tion of a person is for a violation committed after a first
conviction of such person under this paragraph, punish-
ment shall be by a fine of not more than $50.000 per day
of violation, or by imprisonment of not more than 2
years, or by both.
(2) Knowing Violations. Any person who
(A) knowingly violates section 301, 302, 306. 307,
308. 318. or 405 of this Act. or any permit condition or
limitation implementing any of such sections in a permit
issued under section 402 of this Act by the Administra-
tor or by a State, or any requirement imposed in a
pretreatment program approved under section 402(a)(3)
or 402(b)(8) of this Act or in a permit issued under
section 404 of this Act by the Secretary of the Army or
by a State: or
(B) knowingly introduces into a sewer system or into a
publicly owned treatment works any pollutant or hazard-
ous substance which such person knew or reasonably
should have known could cause personal injury or prop-
erty damage or, other than in compliance with all appli-
cable Federal, State, or local requirements or permits,
which causes such treatment work to violate any effluent
limitation or condition in a permit issued to the treat-
ment works under section 402 of this Act by the Admin-
istrator or a State;
shall be punished by a fine of not less than $5,000 nor
more than S50.000 per day of violation, or by imprison-
ment for not more than 3 years, or by both. If a
conviction of a person is for a violation committed after
a first conviction of such person under this paragraph,
punishment shall be a fine of not more than $100,000
ner day of violation, or by imprisonment of not more
man 6 years, or by both.
(3) Knowing Endangerment.
(A) General Rule. Any person who knowingly
violates section 301,302. 303. 306, 307, 308, 318, or 405
of this Act, or any permit condition or limitation imple-
menting any of such sections in a permit issued under
section 402 of this Act by the Administrator or by a
State, or in a permit issued under section 404 of this Act
by the Secretary of the Army or by a State, and who
knows at that time that he thereby places another person
in imminent danger of death or serious bodily injury,
shall, upon conviction, be subject to a fine of not more
than S250.000 or imprisonment of not more than 15
years, or both. A person which is an organization shall,
upon conviction of violating this subparagraph. be sub-
ject to a fine of not more than $1,000.000. If a conviction
of a person is for a violation committed after a first
conviction of such person under this paragraph, the
maximum punishment shall be doubled with respect to
both fine and imprisonment.
(B) Additional Provisions. - For the purpose of
subparagraph (A) of this paragraph
(i) in determining whether a defendant who is an
individual knew that his conduct placed another person
in imminent danger of death or serious bodily injury
(I) the person is responsible only for actual awareness
or actual belief that he possessed: and
(II) knowledge possessed by a person other than :he
defendant but not by the defendant himself may not be
attributed to the defendant;
except that in proving the defendant's possession of
actual knowledge, circumstantial evidence may be used.
including evidence that the defendant took affirmative
steps to shield himself from relevant information; :
(ii) it is an affirmative defense to prosecution that the
conduct charged was consented to by the person endan-
gered and that the danger and conduct charged were
reasonably foreseeable hazards of
(I) an occupation, a business, or a profession; or
(II) medical treatment or medical or scientific experi-
mentation conducted by professionally approved meth-
ods and such other person had been made aware of the
risks involved prior to giving consent;
and such defense may be established under this subpara-
graph by a preponderance of the evidence;
(iii) the term "organization" means a legal entity,
other than a government, established or organized for
any purpose, and such term includes a corporation.
company, association, firm, partnership, joint stock com-
pany, foundation, institution, trust, society, union, or any
other association of persons; and
(iv) the term "serious bodily injury" means bodily
injury which involves a substantial risk of death, uncon-
sciousness, extreme physical pain, protracted and obvi-
ous disfigurement, or protracted loss or impairment of
the function of a bodily member, organ, or mental
faculty.
(4) False Statements. Any person who knowingly
makes any false material statement, representation, or
certification in any application, record, report, plan, or
other document filed or required to be maintained under
this Act or who knowingly falsifies, tampers with, or
renders inaccurate any monitoring device or method
required to be maintained under this Act, shall upon
conviction, be punished by a fine of not more than
$10,000, or by imprisonment for not more than 2 years,
or by both. If a conviction of a person is for a violation
committed after a first conviction of such person under
this paragraph, punishment shall be by a fine of not
more than $20.000 per day of violation, or by imprison-
ment of not more than 4 years, or by both. !
(5) Treatment of Single Operational Upset. For
purposes of this subsection, a single operational upset
which leads to simultaneous violations of more than one
pollutant parameter shall be treated as a single violation.
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(6) Responsible Corporate Officer as "Person".
For the purpose of this subsection, the term "person"
means, in addition to the definition contained in section
502(5) of this Act. any responsible corporate officer.
(7) Hazardous Substance Defined. For the purpose
of this subsection, the term "hazardous substance"
means (A) any substance designated pursuant to section
311(b)(2)(A) of this Act, (B) any element, compound,
mixture, solution, or substance designated pursuant to
section 102 of the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of 1980, (C)
any hazardous waste having the characteristics identi-
fied under or listed pursuant to section 3001 of the Solid
Waste Disposal Act (but not including any waste the
regulation of which under the Solid Waste Disposal Act
has been suspended by Act of Congress), (D) any toxic
pollutant listed under section 307(a) of this Act, and (E)
any imminently hazardous chemical substance or mix-
ture with respect to which the Administrator has taken
action pursuant to section 7 of the Toxic Substances
Control Act.
(d) Any person who violates section 301, 302, 306,
307, 308, 318, or 405 of this Act, or any permit con-
dition or limitation implementing any of such sections
in a permit issued under section 402 of this Act by the
Administrator, or by a State, or in a permit issued under
section 404 of this Act by a State, or any requirement
imposed in a pretreatment program approved under
section 402(a)(3) or 402 (b)(8) of this Act, and any
person who violates any order issued by the Administra-
tor under subsection (a) of this section, shall be subject
to a civil penalty not to exceed $25,000 per day for each
violation. In determining the amount of a civil penalty
the court shall consider the seriousness of the violation or
violations, the economic benefit (if any) resulting from
the violation, any history of such violations, any good-
faith efforts to comply with the applicable requirements,
the economic impact of the penalty on the violator, and
such other matters as justice may require. For purposes
of this subsection, a single operational upset which leads
to simultaneous violations of more than one pollutant
parameter shall be treated as a single violation.
[Sec. 309(d) amended by PL 100-4]
[Editor's note: Section 313(a)(2) and (b)(2) of PL
100-4 state the following concerning the amendments to
309(d):
"[a](2) Savings Provision. No State shall be re-
quired before July 1, 1988, to modify a permit program
approved or submitted under section 402 of the Federal
Water Pollution Control Act as a result of the amend-
ment made by paragraph [a](I)." [Note: §313(a)(l)
amended 309(d).]
"[bj(2) Increased Penalties Not Required Under
State Programs. The Federal Water Pollution Con-
trol Act shall not be construed as requiring a State to
have a civil penalty for violations described in section
309(d) of such Act which has the same monetary
amount as the civil penalty established by such section.
as amended by paragraph [b](l). Nothing in this para-
graph shall affect the Administrator's authority to estab-
lish or adjust by regulation a minimum acceptable State
civil penalty."]
(e) Whenever a municipality is a party to a civil
action brought by the United States under this section.
the State in which such municipality is located shall be
joined as a party. Such State shall be liable for payment
of any judgment, or any expenses incurred as a result of
complying with any judgment, entered against the
municipality in such action to. the extent that the laws of
that State prevent the municipality from raising
revenues needed to comply with such judgment.
(f) Whenever, on the basis of an information avail-
able to him, the Administrator finds that an owner or
operator of any source is introducing a pollutant into a
treatment works in violation of subsection (d) of section
307, the Administrator may notify the owner or opera-
tor of such treatment works and the State of such viola-
tion. If the owner or operator of the treatment works
does not commence appropriate enforcement action
within 30 days of the date of such notification, the Ad-
ministrator may commence a civil action for appropri-
ate relief, including but not limited to, a permanent or
temporary injunction, against the owner or operator of
such treatment works. In any such civil action the Ad-
ministrator shall join the owner or operator of such
source as a party to the action. Such action shall be
brought in the district court of the United States in the
district in which the treatment works is located. Such
court shall have jurisdiction to restrain such violation
and to require the owner or operator of the treatment
works and the owner or operator of the source to take
such action as may be necessary to come into compli-
ance with this Act. Notice of commencement of any
such action shall be given to the State. Nothing in this
subsection shall be construed to limit or prohibit any
other authority the Administrator may have under this
Act.
(g) Administrative Penalties.
[Sec. 309(g) added by PL 100-4]
(1) Violations. Whenever on the basis of any
information available
(A) the Administrator finds that any person has
violated section 301, 302, 306, 307, 308, 318, or 405 of
this Act, or has violated any permit condition or limita-
tion implementing any of such sections in a permit
issued under section 402 of this Act by the Administra-
tor or by a State, or in a permit issued under section 404
by a State, or
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(B) the Secretary of the Army (hereinafter in this
subsection referred to as the "Secretary") finds that any
person has violated any permit condition or limitation in
a permit issued under section 404 of this Act by the
Secretary.
the Administrator or Secretary, as the case may be, may,
after consultation with the State in which the violation
occurs, assess a class I civil penalty or a class II civil
penalty under this subsection.
(2) Classes of Penalties.
(A) Class I. The amount of a class I civil penalty
under paragraph (1) may not exceed S10.000 per viola-
tion, except that the maximum amount of any class I
civil penalty under this subparagraph shall not exceed
S2S.OOO. Before issuing an order assessing a civil penalty
under this subparagraph, the Administrator or the Sec-
retary, as the case may be, shall give to the person to be
assessed such penalty written notice of the Administra-
tor's or Secretary's proposal to issue such order and the
opportunity to request, within 30 days of the date the
notice is received by such person, a hearing on the
proposed order. Such hearing shall not be subject to
section 554 or 556 of title 5, United States Code, but
shall provide a reasonable opportunity to be heard and to
present evidence.
(B) Class II. The amount of a class II civil penalty
under paragraph (1) may not exceed $10,000 per day for
each day during which the violation continues; except
that the maximum amount of any class II civil penalty
under this subparagraph shall not exceed $125,000.
Except as otherwise provided in this subsection, a class
II civil penalty shall be assessed and collected in the
same manner, and subject to the same provisions, as in
the case of civil penalties assessed and collected after
notice and opportunity for a hearing on the record in
.ordance with section 554 of title 5, United States
Code. The Administrator and the Secretary may issue
rules for discovery procedures for hearings under this
subparagraph.
(3) Determining Amount. In determining the
amount of any penalty assessed under this subsection,
the Administrator or the Secretary, as the case may be,
shall take into account the nature, circumstances, extent
and gravity of the violation, or violations, and, with
respect to the violator, ability to pay, any prior history of
such violations, the degree of culpability, economic bene-
fit or savings (if any) resulting from the violation, and
such other matters as justice may require. For purposes
of this subsection, a single operational upset which leads
to simultaneous violations of more than one pollutant
parameter shall be treated as a single violation.
(4) Rights of Interested Persons.
(A) Public Notice. Before issuing an order assess-
ing a civil penalty under this subsection the Administra-
tor or Secretary, as the case may be, shall provide public
notice of and reasonable opportunity to comment on the
proposed issuance of such order.
(B) Presentation of Evidence. Any person who
comments on a proposed assessment of a penalty under
this subsection shall be given notice of any hearing held
under this subsection and of the order assessing such
penalty. In any hearing held under this subsection, such
person shall have a reasonable opportunity to be heard
and to present evidence.
(C) Rights of Interested Persons to a Hearing. If
no hearing is held under paragraph (2) before issuance
of an order assessing a penalty under this subsection, any
person who commented on the proposed assessment may
petition, within 30 days after the issuance of such order.
the Administrator or Secretary, as the case may be, to
set aside such order and to provide a hearing oh the
penalty. If the evidence presented by the petitioner in
support of the petition is material and was not consid-
ered in the issuance of the order, the Administrator or
Secretary shall immediately set aside such order and
provide a hearing in accordance with paragraph (2)(A)
in the case of a class I civil penalty and paragraph
(2)(B) in the case of a class II civil penalty. If the
Administrator or Secretary denies a hearing under this
subparagraph, the Administrator or Secretary shall pro-
vide to the petitioner, and publish in the Federal Regis-
ter, notice of and the reasons for such denial.
(5) Finality of Order. An order issued under this
subsection shall become final 30 days after its issuance
unless a petition for judicial review is filed under para-
graph (8) or a hearing is requested under paragraph
(4)(C). If such a hearing is denied, such order;shall
become final 30 days after such denial.
(6) Effect of Order.
(A) Limitation on Actions Under Other Sections.
Action taken by the Administrator or the Secretary, as
the case may be, under this subsection shall not affect or
limit the Administrator's or Secretary's authority to
enforce any provision of this Act; except that any viola-
tion
(i) with respect to which the Administrator or the
Secretary has commenced and is diligently prosecuting
an action under this subsection,
(ii) with respect to which a State has commenced and
is diligently prosecuting an action under a State law
comparable to this subsection, or
(iii) for which the Administrator, the Secretary, or the
State has issued a final order not subject to further-
judicial review and the violator has paid a penalty
assessed under this subsection, or such comparable State
law, as the case may be,
shall not be the subject of a civil penalty action under
subsection (d) of this section or section 31 l(b) or section
50S of this Act.
(B) Applicability of Limitation With Respect to Citi-
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zen Suits. The limitations contained in subparagraph
(A) on civil penalty actions under section 505 of this Act
shall not apply with respect to any violation for which
(i) a civil action under section 505(a)(l) of this Act
has been filed prior to commencement of an action under
this subsection, or
(ii) notice of an alleged violation of section 505(a)(l)
of this Act has been given in accordance with section
505(b)(l )(A) prior to commencement of an action under
this subsection and an action under section 505(a)(l)
with respect to such alleged violation is filed before the
120th day after the date on which such notice is given.
(7) Effect of Action on Compliance. No action by
the Administrator or the Secretary under this subsection
shall affect any person's obligation to comply with any
section of this Act or with the terms and conditions of
any permit issued pursuant to section 402 or 404 of this
Act.
(8) Judicial Review. Any person against whom a
civil penalty is assessed under this subsection or who
commented on the proposed assessment of such penalty
in accordance with paragraph (4) may obtain review of
such assessment
(A) in the case of assessment of a class I civil penalty,
in the United States District Court for the District of
Columbia or in the district in which the violation is
alleged to have occurred, or
(B) in the case of assessment of a class II civil penalty,
in United States Court of Appeals for the District of
Columbia Circuit or for any other circuit in which such
person resides or transacts business,
by filing a notice of appeal in such court within the 30-
day period beginning on the date the civil penalty order
is issued and by simultaneously sending a copy of such
notice by certified mail to the Administrator or the
Secretary, as the case may be, and the Attorney Gener-
al. The Administrator or the Secretary shall promptly
file in such court a certified copy of the record on which
the order was issued. Such court shall not set aside or
remand such order unless there is not substantial evi-
dence in the record, taken as a whole, to support the
finding of a violation or unless the Administrator's or
Secretary's assessment of the penalty constitutes an
abuse of discretion and shall not impose additional civil
penalties for the same violation unless the Administra-
tor's or Secretary's assessment of the penalty constitutes
an abuse of discretion.
(9) Collection. If any person fails to pay an
assessment of a civil penalty
(A) after the order making the assessment has become
final, or
(B) after a court in an action brought under para-
graph (8) has entered a final judgment in favor of the
Administrator or the Secretary, as the case may be,
the Administrator or the Secretary shall request the
Attorney General to bring a civil action in an appropri-
ate district court to recover the amount assessed (plus
interest at currently prevailing rates from the date of the
final order or the date of the final judgment, as the case
may be). In such an action, the validity, amount, and
appropriateness of such penalty shall not be subject to
review. Any person who fails to pay on a timely basis the
amount of an assessment of a civil penalty as described
in the first sentence of this paragraph shall be required
to pay, in addition to such amount and interest, attor-
neys fees and costs for collection proceedings and a
quarterly nonpayment penalty for each quarter during
which such failure to pay persists. Such nonpayment
penalty shall be in an amount equal to 20 percent of the
aggregate amount of such person's penalties and nonpay-
ment penalties which are unpaid as of the beginning of
such quarter.
(10) Subpoenas. The Administrator or Secretary,
as the case may be, may issue subpoenas for the atten-
dance and testimony of witnesses and the production of
relevant papers, books, or documents in connection with
hearings under this subsection. In case of contumacy or
refusal to obey a subpoena issued pursuant to this
paragraph and served upon any person, the district court
of the United States for any district in which such
person is found, resides, or transacts business, upon
application by the United States and after notice to such
person, shall have jurisdiction to issue an other requiring
such person to appear and give testimony before the
administrative law judge or to appear and produce docu-
ments before the administrative law judge or both, and
any failure to obey such order of the court may be
punished by such court as a contempt thereof.
(11) Protection of Existing Procedures. Nothing in
this subsection shall change the procedures existing on
the day before the date of the enactment of the Water
Quality Act of 1987 under other subsections of this
section for issuance and enforcement of orders by the
Administrator.
[Editor's note: Section 314(b) of PL 100-4 provides:
"(b) Reports on Enforcement Mechanisms. The
Secretary of the Army and the Administrator shall each
prepare and submit a report to the Congress, not later
than December 1, 1988, which shall examine and ana-
lyze various enforcement mechanisms for use by the
Secretary or Administrator, as the case may be, includ-
ing an administrative civil penalty mechanism. Each of
such reports shall also include an examination, prepared
in consultation with the Comptroller General, of the
efficacy of the Secretary's or the Administrator's exist-
ing enforcement authorities and shall include recommen-
dations for improvements in their operation."]
INTERNATIONAL POLLUTION ABATEMENT
Sec. 310. (a) Whenever the Administrator, upon
receipts of reports, surveys, or studies from any duly
constituted international agency, has reason to believe
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that pollution is occurring which endangers the health
or welfare of persons in a foreign country, and the
Secretary of State requests him to abate such pollution,
he shall give formal notification thereof to the State
water pollution control agency of the State or States in
which such discharge or discharges originate and to the
appropriate interstate agency, if any. He shall also
promptly call such a hearing, if he believes that such
pollution is occurring in sufficient quantity to warrant
such action, and if such foreign country has given the
United States essentially the same rights with respect to
the prevention and control of pollution occurring in that
country as is given that country by this subsection. The
Administrator, through the Secretary of State, shall in-
vite the foreign country which may be adversely affected
by the pollution to attend and participate in the hearing,
and the representative of such country shall, for the pur-
pose of the hearing and any further proceeding resulting
from such hearing, have all the rights of a State water
pollution control agency. Nothing in this subsection
shall be construed to modify, amend, repeal, or other-
wise affect the provisions of the 1909 Boundary Waters
Treaty between Canada and the United States or the
Water Utilization Treaty of 1944 between Mexico and
the United States (59 Stat. 1219), relative to the control
and abatement of pollution in waters covered by those
treaties.
(b) The calling of a hearing under this section shall
not be construed by the courts, the Administrator, or
any person as limiting, modifying, or otherwise affect-
ing the functions and responsibilities of the Administra-
tor under this section to establish and enforce water
quality requirements under this Act.
(c) The Administrator shall publish in the Federal
Register a notice of a public hearing before a hearing
board of five or more persons appointed by the Ad-
ministrator. A majority of the members of the board
and the chairman who shall be designated by the Ad-
ministrator shall not be officers or employees of Fed-
eral, State,, or local governments. On the basis of the
evidence presented at such hearing, the board shall
within sixty days after completion of the hearing make
findings of fact as to whether or not such pollution is
occurring and shall thereupon by decision, incorporat-
ing its findings therein, make such recommendations to
abate the pollution as may be appropriate and shall
transmit such decision and the record of the hearings to
the Administrator. All such decisions shall be public.
Upon receipt of such decision, the Administrator shall
promptly implement the board's decision in accordance
with the provisions of this Act.
td) In connection with any hearing called under this
subsection, the board is authorized to require any per-
son whose alleged activities result in discharges causing
or contributing to pollution to file with it in such forms
as it may prescribe, a report based on existing data.
furnishing such information as may reasonably be re-
quired as to the character, kind, and quantity of such
discharges and the use of facilities or other means to
prevent or reduce such discharges by the person filing
such a report. Such report shall be made under bath or
otherwise, as the board may prescribe, and shall be filed
with the board within such reasonable period as it may
prescribe, unless additional time is granted by it. Upon a
showing satisfactory to the board by the person filing
such report that such report or portion thereof (other
than effluent data), to which the Administrator has
access under this section, if made public would divulge
trade secrets or secret processes of such person, the
board shall consider such report or portion thereof con-
fidential for the purposes of section 1905 of title 18 of
the United States Code. If any person required to file
any report under this paragraph shall fail to do so
within the time.fixed by the board for filing the same,
and such failure shall continue for thirty days after
notice of such default, such person shall forfeit to the
United States the sum of SI,000 for each and every day
of the continuance of such failure, which forfeiture
shall be payable into the Treasury of the United States,
and shall be recoverable in a civil suit in the name of the
United States in the district court of the United States
where such person has his principal office or in any dis-
trict in which he does business. The Administrator may
upon application therefor remit or mitigate any for-
feiture provided for under this subsection.
(e) Board members, other than officers or employees
of Federal, State, or local governments, shall be for"
each day (including travel-time) during which they are
performing board business, entitled to receive compen-
sation at a rate fixed by the Administrator but not in ex-
cess of the maximum rate of pay for grade GS-18, as
provided in the General Schedule under section 5332 of
title 5 of the United States Code, and shall, notwith-
standing the limitations of sections 5703 and 5704 of
title 5 of the United States Code, be fully reimbursed for
travel, subsistence, and related expenses.
(0 When any such -recommendation adopted by the
Administrator involves the institution of enforcement
proceedings against any person to obtain the abatement
of pollution subject to such recommendation, the Ad-
ministrator shall institute such proceedings if he believes
that the evidence warrants such proceedings. The dis-
trict court of the United States shall consider and de-
termine de novo all relevant issues, but shall receive in
evidence the record of the proceedings before the con-
ference or hearing board. The court shall have jurisdic-
tion to enter such judgment and orders enforcing such
judgment as it deems appropriate or to remand such
proceedings to the Administrator for such further
action as it may direct.
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OIL AND HAZARDOUS SUBSTANCE LIABILITY
Sec. 311. (a) For the purpose of this section, the
term
(I) "oil" means oil of any kind or in any form, in-
cluding, but not limited to, petroleum, fuel oil,
sludge, oil refuse, and oil mixed with wastes other
than dredged spoil;
(2) "discharge" includes, but is not limited to, any
spilling, leaking, pumping, pouring, emitting, empty-
ing or dumping, but excludes (A) discharges in com-
pliance with a permit under section 402 of this Act.
(B; discharges resulting from circumstances identified
and reviewed and made a part of the public record with
respect to a permit issued or modified under section 402
of this Act, and subject to a condition in such permit, and
(C) continuous or anticipated intermittent discharges
from a point source, identified in a permit or permit
application under section 402 of this Act. which are
caused by events occurring within the scope of relevant
operating or treatment systems.
[3ll(a)(2) amended by PL 95-576]
(3) "vessel" means every description of watercraft
or other artificial contrivance used, or capable of
being used, as a means of transportation on water
other than a public vessel;
(4) "public vessel" means a vessel owned or bare-
boat-chartered and operated by the United States, or
by a State or political subdivision thereof, or by a
foreign nation, except when such vessel is engaged in
commerce;
(5) "United States" means the States, the District of
Columbia, the Commonwealth of Puerto Rico, the Com-
monwealth of the Northern Mariana Islands, Guam,
American Samoa, the Virgin Islands and the Trust
Territory of the Pacific Islands;
[Sec. 31 l(a)(5) amended by PL 100-4].
(6) "owner or operator" means (A) in the case of a
vessel, any person owning, operating, or chartering by
demise, such vessel, and (B) in the case of an onshore
facility, and an offshore facility, any person owning
or operating such onshore facility or offshore facility,
and (C) in the case of any abandoned offshore facil-
ity, the person who owned or operated such facility
immediately prior to such abandonment;
(7) "person" includes an individual, firm, corpora-
tion, association, and a partnership;
(8) "remove" or "removal" refers to removal of
the oil or hazardous substances from the water and
shorelines or the taking of such other actions as may
be necessary to minimize or mitigate damage to the
public health or welfare, including, but not limited to,
fish, shellfish, wildlife, and public and private
property, shorelines, and beaches;
(9) "contiguous zone" means the entire zone estab-
lished or to be established by the United States under
article 24 of the Convention on the Territorial Sea
and the Contiguous Zone;
(10) "onshore facility" means any'facility (includ-
ing, but not limited to, motor vehicles and ruling
stock) of any kind located in, on. or under, an1, and
within the United States other than submerged land;
(11) "offshore facility" means any facility of any
kind located in, on, or under, any of the navigable
waters of the United States,, and any facility of any
kind.which is subject to the jurisdiction of the United
States and is located in, on, or under any other
waters, other than a vessel or a public vessel;
(12) "act of God" means an act occasioned by an
unanticipated grave natural disaster;
(13) "barrel" means 42 United States gallons at 60
degrees Fahrenheit;
(14) "hazardous substance" means any substance
designated pursuant to subsection (b) (2) of this sec-
tion;
(15) "inland oil barge" means a non-self-propelled
vessel carrying oil in bulk as cargo and certificated to
operate only in the inland waters of the United States,
while operating in such waters;
(16) "inland waters of the United States" means
those waters of the United States lying inside the base-
line from which the territorial sea is measured and
those waters outside such baseline which are a part of
the Gulf Intracoastal Waterway.
(17) "Otherwise subject to the jurisdiction of the
United States" means subject to the jurisdiction of the
United States by virtue of United States citizenship.
United States vessel documentation or numbering, or as-
provided for by international agreement to which the
United States is a party.
[3il(a)(l7) added by PL 95-576]
(b) (1) The Congress hereby declares that it is the.
policy of the United States that there should be no"
discharges of oil or hazardous substances into or upon
the navigable waters of the United States, adjoining
shorelines, or into or upon the waters of the contigu-
ous zone, or in connection with activities under the
Outer Continental Shelf Lands Act or the Deepwater
Port Act of 1977, or which may affect natural re-
sources belonging to, appertaining to, or under the ex-
clusive management authority of the United States (in-
cluding resources under the Magnuson Fishery Con-
servation and Management Act of 1976).
[3H(bXD amended by PL 96-561]
(2) (A) The Administrator shall develop, promul-
gate, and revise as may be appropriate, regulations
designating as hazardous substances, other than oil as
defined in this section, such elements and compounds
which, when discharged in any quantity into or upon
the navigable waters of the United States or adjoining
shorelines or the waters of the contiguous zone or in
connection with activities under the Outer Continental
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including but not limited to methods utilizing recycle
and reuse techniques and land treatment are not util-
ized, unless the life cycle cost of the alternative treat-
ment works exceeds the life cycle cost of the most cost
effective alternative by more than 15 per centum. The
Administrator may waive the application of this para-
graph in any case where the Administrator determines it
to be in the public interest, or that compliance with this
paragraph would interfere with the orderly compliance
with conditions of a permit issued pursuant to section
402 of this Act.
FEDERAL FACILITIES POLLUTION CONTROL
Sec. 313. (a) Each department, agency, or instru-
mentality of the executive, legislative, and judicial
branches of the Federal Government (1) having jurisdic-
tion over any property or facility, or (2) engaged in any
activity resulting, or which may result, in the discharge
or runoff of pollutants, and each officer, agent, or em-
ployee thereof in the performance of his official duties,
shall be subject to, and comply with, all Federal, State,
interstate, and local requirements, administrative
authority, and process and sanctions respecting the con-
trol and abatement of water pollution in the same man-
ner, and to the same extent as any nongovernmental
entity including the payment of reasonable service
charges. The preceding sentence shall apply (A) to any
requirement whether substantive or procedural (includ-
ing any recordkeeping or reporting requirement, any
requirement respecting permits and any other require-
ment, whatsoever), (B) to the exercise of any Federal,
State, or local administrative authority, and (C) to any
process and sanction, whether enforced in Federal,
State, or local courts or in any other manner. This sub-
section shall apply notwithstanding any immunity of
such agencies, officers, agents, or employees under any
law or rule of law. Nothing in this section shall be con-
strued to prevent any department, agency, or instru-
mentality of the Federal Government, or any officer,
agent,-or employee thereof in the performance of his
official duties, from reporting to the appropriate Fed-
eral district court any proceeding to which the depart-
ment, agency, or instrumentality or officer, agent, or
employee thereof is subject pursuant to this section, and
any such proceeding may be removed in accordance
with 28 U.S.C. 1441 et seq. No officer, agent, or
employee of the United States shall be personally liable
for any civil penalty arising from the performance of his
official duties, for which he is not otherwise liable, and
the United States shall be liable only for those civil
penalties arising under Federal law or imposed by a
State or local court to enforce an order or the process of
such court. The President may exempt any effluent
source of any department, agency, or instrumentality in
the executive branch from compliance with any such a
requirement if he determines it to be in the paramount
interest of the United States to do so; except that no
exemption may be granted from the requirements of
section 306 or 307 of this Act. No such exemptions shall
be granted due to lack of appropriation unless the Presi-
dent shall have specifically requested such appropria-
tion as a pan of the budgetary process and the Congress
shall have failed to make available such requested
appropriation. Any exemption shall be for a period not
in excess of one year, but additional exemptions may be
granted for periods of not to exceed one year upon the
President's making a new determination. The President
shall report each January to the Congress all exemptions
from the requirements of this section granted during the
preceding calendar year, together with his reason for
granting such exemption. In addition to any such
exemption of a particular effluent source, the President
may, if he determines it to be in the paramount interest
of the United States to do so, issue regulations exempt-
ing from compliance with the requirements of this-
section any weaponry, equipment, aircraft, vessels,
vehicles, or other classes or categories of property, and
access to such property, which are owned or operated by
the Armed Forces of the United States (including the
Coast Guard) or by the National Guard of any State and
which are uniquely military in nature. The President
shall reconsider the need for such regulations at three-
year intervals.
(b) (1) The Administrator shall coordinate with the
head of each department, agency, or instrumentality of
the Federal Government having jurisdiction over any
property or facility utilizing federally owned wastewater
facilities to develop a program of cooperation for utiliz-
ing wastewater control systems utilizing those innova-
tive treatment processes and techniques for which guide-
lines have been promulgated under section 304(d) (3).
Such program shall include an inventory of property
and facilities which could utilize such processes and
techniques.
(2) Construction shall not be initiated for facilities
for treatment of wastewater at any Federal property or
facility after September 30, 1979, if alternative methods
for wastewater treatment at such property or facility
utilizing innovative treatment processes and techniques.
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(d) Any certification provided under this section
shall set forth any effluent limitations and other limita-
tions, and monitoring requirements necessary to assure
that any applicant for a Federal license or permit will
comply with any applicable effluent limitations and
other limitations, under section 301 or 302 of this Act,
standard of performance under section 306 of this Act,
or prohibition, effluent standard, or pretreatment stan-
dard under section 307 of this Act, and with any other
appropriate requirement of State law set forth in such
certification, and shall become a condition on any Fed-
eral license or permit subject to the provisions of this
section.
NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM
Sec. 402. (a) (1) Except as provided in sections 318
and 404 of this Act, the Administrator may, after op-
portunity for public hearing, issue a permit for the dis-
charge of any pollutant, or combination of pollutants,
notwithstanding section 301 (a), upon condition that
such discharge will meet either (A) all applicable re-
quirements under sections 301, 302, 306, 307. 308 and
403 of this Act, or (B) prior to the taking of necessary
implementing actions relating to all such requirements,
such conditions as the Administrator determines are
necessary to carry out the provisions of this Act.
[Sec. 402(a)(l)(A) and (B) designated by PL 100-4]
[Editor's note: Section 306(c) of PL 100-4 provides:
"(c) Phosphate Fertilizer Effluent Limitation.
(1) Issuance of Permit. As soon as possible after
the date of the enactment of this Act, but not later than
180 days after such date of enactment, the Administra-
tor shall issue permits under section 402(a)(l)(B) of the
Federal Water Pollution Control Act with respect to
facilities
(A) which were under construction on or before April
8, 1974, and
(B) for which the Administrator is proposing to revise
the applicability of the effluent limitation established
under section 301(b) of such Act for phosphate subcate-
gory of the fertilizer manufacturing point source cate-
gory to exclude such facilities.
(2) Limitations on Statutory Construction. Noth-
ing in this section shall be construed
(A) to require the Administrator to permit the dis-
charge of gypsum of gypsum waste into the navigable
waters,
(B) to affect the procedures and standards applicable
to the Administrator in issuing permits under section
402(a)(l)(B) of the Federal Water Pollution Control
Act, and
(C) to affect the authority of any State to deny or
condition certification under section 401 of such Act
with respect to the issuance of permits under section
402(a)(l)(B)ofsuch Act."]
(2) The Administrator shall prescribe conditions for
such permits to assure compliance with the requirements
of paragraph (1) of this subsection, including conditions
on data and information collection, reporting, and such
other requirements as he deems appropriate.
(3) The permit program of the Administrator under
paragraph (1) of this subsection, and permits issued
thereunder, shall be subject to the same terms, condi-
tions, and requirements as apply to a State permit pro-
gram and permits issued thereunder under subsection
(b) of this section.
(4) All permits for discharges into the navigable
waters issued pursuant to section 13 of the Act of March
3, 1899, shall be deemed to be permits issued under this
title, and permits issued under this title shall be deemed
to be permits issued under section 13 of the Act of
March 3,1899, and shall continue in force and effect for
their term unless revoked, modified, or suspended in ac-
cordance with the provisions of this Act.
(5) No permit for a discharge into the navigable
waters shall be issued under section 13 of the Act of
March 3, 1899, after the date of enactment of this title.
Each application for a permit under section 13 of the
Act of March 3,1899, pending on the date of enactment
of this Act shall be deemed to be an application for a
permit under this section. The Administrator shall au-
thorize a State, which he determines has the capability
of administering a permit program which will carry out
the objective of this Act, to issue permits for discharges
into the navigable waters within the jurisdiction of sucK
State. The Administrator may exercise the authority
granted him by the preceding sentence only during the
period which begins on the date of enactment of this Act
and ends either on the ninetieth day after the date of the
first promulgation of guidelines required by section-
304 (h) (2) of this Act, or the date of approval by the
Administrator of a permit program for such State under
subsection (b) of this section, whichever date first oc-
curs, and no such authorization to a State shall extend
beyond the last day of such period. Each such permit
shall be subject to such conditions as the Administrator
determines are necessary to carry out the provisions of
this Act. No such permit shall issue if the Administrator
objects to such issuance.
(b) At any time after the promulgation of the guide-
lines required by subsection (h) (2) of section 304 of this
Act, the Governor of each State desiring to administer
its own permit program for discharges into navigable
waters within its jurisdiction may submit to the Admin-
istrator a full and complete description of the program
it proposes to establish and administer under State law
or under an interstate compact. In addition, such State
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shall submit a statement from the attorney general (or
the attorney for those State water pollution control
agencies which have independent legal counsel), or from
the chief legal officer in the case of an interstate agency,
that the laws of such State, or the interstate compact,
as the case may be, provide adequate authority to carry
out the described program. The Administrator shall ap-
prove each such submitted program unless he
determines that adequate authority does not exist:
(1) To issue permits which
(A) apply, and insure compliance with, any applica-
ble requirements of sections 301, 302,306,307, and 403;
(B) are for fixed terms not exceeding five years; and
(C) can be terminated or modified for cause includ-
ing, but not limited to, the following:
(i) violation of any condition of the permit;
(ii) obtaining a permit by misrepresentation, or fail-
ure to disclose fully all relevant facts;
(iii) change in any condition that requires either a
temporary or permanent reduction or elimination of the
permitted discharge;
(D) control the disposal of pollutants into wells;
(2) (A) To issue permits which apply, and insure
compliance with, all applicable requirements of section
308 of this Act, or
(B) To inspect, monitor, enter, and require reports to
at least the same extent as required in section 308 of this
Act;
(3) To insure that the public, and any other State the
waters of which may be affected, receive notice of each
application for a permit and to provide an opportunity
for public hearing before a ruling on each such applica-
tion;
(4) To insure that the Administrator receives notice
of each application (including a copy thereof) for a per-
mit;
(5) To insure that any State (other than the permit-
ting State), whose waters may be affected by the issu-
ance of a permit may submit written recommendations
to the permitting State (and the Administrator) with re-
spect to any permit application and, if any part of such
written recommendations are not accepted by the per-
mitting State, that the permitting State will notify such
affected State (and the Administrator) in writing of its
failure to so accept such recommendations together with
its reasons for so doing;
(6) To insure that no permit will be issued if, in the
judgment of the Secretary of the Army acting through
the Chief of Engineers, after consultation with the Sec-
retary of the department in which the Coast Guard is
operating, anchorage and navigation of any of the navi-
gable waters would be substantially impaired thereby;
(7) To abate violations of the permit or the permit
program, including civil and criminal penalties and
other ways and means of enforcement.
(8) To insure that any permit for a discharge from a
publicly owned treatment works includes conditions to
require the identification in terms of character and vol-
ume of pollutants of any significant source introducing
pollutants subject to pretreatment standards under sec-
tion 307 (b) of this Act into such works and a program
to assure compliance with such pretreatment standards
by each such source, in addition to adequate notice to
the permitting agency of (A), new introductions into
such works of pollutants from any source which would
be a new source as defined in section 306 if such source
were discharging pollutants. (B) new introductions of
pollutants into such works from a source which would
be subject to section 301 if it were discharging such pol-
lutants, or (C) a substantial change in volume or char-
acter of pollutants being introduced into such works by
a source introducing pollutants into such works at the
time of issuance of the permit. Such notice shall include
information on the quality and quantity of effluent to
be introduced into such treatment works and any antici-
pated impact of such change in the quantity or quality
of effluent to be discharged from such publicly owned
treatment works; and
(9) To insure that any industrial user of any publicly
owned treatment works will comply with sections 204
(b), 307, and 308.
(c) (1) Not later than ninety days after the date on
which a State has submitted a program (or revision
thereof) pursuant to subsection (b) of this section, the
Administrator shall suspend the issuance of permits
under subsection (a) of this section as to those dis-
charges subject to such program unless he determines.
that the State permit program does not meet the require-
ments of subsection (b) of this section or does not
conform to the guidelines issued under section 304(i)(2)
of this Act. If the Administrator so determines, he shall
notify the State of any revisions or modifications neces-
sary to conform to such requirements or guidelines.
[Sec. 402(c)(l) amended by PL 100-4]
(2) Any State permit program under this section shall
at all times be in accordance with this section and guide-
lines promulgated pursuant to section 304 (h) (2) of this
Act.
(3) Whenever the Administrator determines after
public hearing that a State is not administering a pro-
gram approved under this section in accordance with
requirements of this section, he shall so notify the State
and, if appropriate corrective action is not taken within
a reasonable time, not to exceed ninety days, the Admin-
istrator shall withdraw approval of such program. The
Administrator shall not withdraw approval of any such
program unless he shall first have notified the State, and
made public, in writing, the reasons for such with-
drawal.
(4) Limitations on Partial Permit Program Returns
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and Withdrawals. A State may return to the Admin-
istrator administration, and the Administrator may with-
draw under paragraph (3) of this subsection approval,
of
(A) a State partial permit program approved under
subsection (n)(3) only if the entire permit program being
administered by the State department or agency at the
time is returned or withdrawn; and
(B) a State partial permit program approved under
subsection (n)(4) only if an entire phased component of
the permit program being administered by the State at
the time is returned or withdrawn.
[Sec. 402(c)(4) added by PL 100-4]
(d) (1) Each State shall transmit to the Adminis-
trator a copy of each permit application received by
such State and provide notice to the Administrator of
every action related to the consideration of such permit
application, including each permit proposed to be issued
by such State.
(2) No permit shall issue (A) if the Administrator
within ninety days of the date of his notification under
subsection (b) (5) of this section objects in writing to
the issuance of such permit, or (B) if the Administrator
within ninety days, of the date of transmittal of the pro-
posed permit by the State objects in writing to the is-
suance of such permit as being outside the guidelines
and requirements of this Act. Whenever the Administra-
tor objects to the issuance of a permit under this para-
graph such written objection shall contain a statement
of the reasons for such objection and the effluent limita-
tions and conditions which such permit would include if
it were issued by the Administrator.
(3) The Administrator may, as to any permit applica-
tion, waive paragraph (2) of this subsection.
f 4) In any case where, after the date of enactment of
this paragraph, the Administrator, pursuant to para-
graph (2) of this subsection, objects to the issuance of a
permit, or request of the State, a public hearing shall be
held by the Administrator on such objection. If the
State does not resubmit such permit revised to meet such
objection within 30 days after completion of the hear-
ing, or, if no hearing is requested within 90 days after
the date of such objection, the Administrator may issue
the permit pursuant to subsection (a) of this section for
such source in accordance with the guidelines and
requirements of this Act.
(e) In accordance with guidelines promulgated pur-
suant to subsection (h) (2) of section 304 of this Act, the
Administrator is authorized to waive the requirements
of subsection (d) of this section at the time he approves
a program pursuant to subsection (b) of this section for
any category (including any class, type, or size within
such category) of point sources within the State submit-
ting such program.
(0 The Administrator shall promulgate regulations
establishing categories of point sources which he deter-
mines shall not be subject to the requirements of subsec-
tion (d) of this section in any State with a program ap-
proved pursuant to subsection (b) of this section. The
Administrator may distinguish among classes, types,
and sizes within any category of point sources.
(g) Any permit issued under this section for the dis-
charge of pollutants into the navigable waters from a
vessel or other floating craft shall be subject to any ap-
plicable regulations promulgated by the Secretary of the
Department in which the Coast Guard is operating,
establishing specifications for safe transportation.
handling, carriage, storage, and stowage of pollutants.
(h) In the event any condition of a permit for dis-
charges from a treatment works (as defined in section
212 of this Act) which is publicly owned is violated, a
State with a program approved under subsection (b) of
this section or the Administrator, where no State pro-
gram is approved or where the Administrator deter-
mines pursuant to section 309(a) of this Act that a State
with an approved program has not commenced appro-
priate enforcement action with respect to such permit,
may-proceed in a court of competent jurisdiction to
restrict or prohibit the introduction of any pollutant
into such treatment works by a source not utilizing such
treatment works prior to the finding that such condition
was violated.
(i) Nothing in this section shall be construed to limit
the authority of the Administrator to take action pur-
suant to section 309 of this Act.
(j) A copy of each permit application and each per-
mit issued under this section shall be available to the
public. Such permit application or permit, or portion
thereof, shall further be available on request for the
purpose of reproduction.
(k) Compliance with a permit issued pursuant to this
section shall be deemed compliance, for purposes of sec-.
tions 309 and 505, with sections 301, 302, 306. 307, and
403, except any standard imposed under section 307 for
a toxic pollutant .injurious to human health. Until
December 31, 1974, in any case where a permit for dis-
charge has been applied for pursuant to this section, but
final administrative disposition of such application has
not been made, such discharge shall not be a violation
of (1) section 301, 306, and 402, of this Act, or (2)
section 13 of the Act of March 3, 1899, unless the Ad-
ministrator or other plaintiff proves that final admin-
istrative disposition of such application has not been
made because of the failure of the applicant to furnish
information reasonably required or requested in order
to process the application. For the 180-day period
beginning on the date of enactment of the Federal
Water Pollution Control Act Amendments of 1972. in
the case of any point source discharging any pollutant
or combination of pollutants immediately prior to such
date of enactment which source is not subject to section
13 of the Act of March 3, 1899, the discharge by such
source shall not be a violation of this Act if such a
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source applies for a permit for discharge pursuant to
this section within such 180-day period.
(1) Limitation on Permit Requirement.
(I) Agricultural Return Flows. The Administrator
shall not require a permit under this section, for dis-
charge composed entirely of return flows from irrigated
agriculture, nor shall the Administrator directly or indi-
rectly, require any State to require such a permit.
(402(0(1) designated by PL 100-4]
[Editor's note: Sec. 54(c)(2) of the Clean Water Act
of 1977 says:
"Any State permit program approved under section
402 of the Federal Water Pollution Control Act before
the date of enactment of the Clean Water Act of 1977,
which requires modification to conform to the amend-
ment made by paragraph (1) of this subsection, shall not
be required to be modified before the end of the one
year period which begins on the date of enactment of
the Clean Water Act of 1977 unless in order to make the
required modification a State must amend or enact a
taw in which case such modification shall not be
required for such State before the end of the two year
period which begins on such date of enactment."]
(2) Stormwater Runoff From Oil, Gas, and Mining
Operations. The Administrator shall not require a
permit under this section, nor shall the Administrator
directly or indirectly require any State to require a
permit, for discharges of Stormwater runoff from mining
operations or oil and gas exploration, production, pro-
cessing, or treatment operations or transmission facili-
ties, composed entirely of flows which are from convey-
ances or systems of conveyances (including but not
limited to pipes, conduits, ditches, and channels) used
for collecting and conveying precipitation runoff and
which are not contaminated by contact with, or do not
come into contact with, any overburden, raw material,
intermediate products, finished product, byproduct, or
waste products located on the site of such operations.
[Sec. 402(1)(2) added by PL 100-4]
(m) Additional Pretreatment of Conventional Pollu-
tants Not Required. To the extent a treatment works
(as defined in section 212 of this Act) which is publicly
owned is not meeting the requirements of a permit issued
under this section for such treatment works as a result of
inadequate design or operation of such treatment works,
the Administrator, in issuing a permit under this section,
shall not require pretreatment by a person introducing
conventional pollutants identified pursuant to section
304(a)(4) of this Act into such treatment works other
than pretreatment required to assure compliance with
pretreatment standards under subsection (b)(8) of this
section and section 307(b)(l) of this Act. Nothing in this
subsection shall affect the Administrator's authority un-
der sections 307 and 309 of this Act, affect State and
local authority under sections 307(b)(4) and 510 of this
Act, relieve such treatment works of its obligations to
meet requirements established under this Act. or other-
wise preclude such works from pursuing whatever feasi-
ble options are available to meet its responsibility to
comply with its permit under this section.
[Sec. 402(m)(p) added by PL 100-4]
(n) Partial Permit Program.
(1) State Submission. The Governor of a State
may submit under subsection (b) of this section a permit
program for a portion of the discharges into the naviga-
ble waters in such State.
(2) Minimum Coverage. A partial permit program
under this subsection shall cover, at a minimum, admin-
istration of a major category of the discharges into the
navigable waters of the State or a major component of
the permit program required by subsection (b). i
(3) Approval of Major Category Partial Permit Pro-
grams. The Administrator may approve a partial
permit program covering administration of a major cate-
gory of discharges under this subsection if
(A) such program represents a complete permit pro-
gram and covers all of the discharges under the jurisdic-
tion of a department or agency of the State: and
(B) the Administrator determines that the partial
program represents a significant and identifiable part of
the State program required by subsection (b).
(4) Approval of Major Component Partial Permit
Programs. The Administrator may approve under
this subsection a partial and phased permit program
covering administration of a major component (includ-
ing discharge categories) of a State permit program
required by subsection (b) if
(A) the Administrator determines that the partial
program represents a significant and identifiable part of.
the State program required by subsection (b); and
(B) the State submits, and the Administrator ap-
proves, a plan for the State to assume administration by
phases of the remainder of the State program required
by subsection (b) by a specified date not more than 5
years after submission of the partial program under this
subsection and agrees to make all reasonable efforts to
assume such administration by such date.
(o) Anti-Backsliding.
(1) General Prohibition. In the case of effluent
limitations established on the basis of subsection
(a)(l)(B) of this section, a permit may not be renewed,
reissued, or modified on the basis of effluent guidelines
promulgated under section 304(b) subsequent to the
original issuance of such permit, to contain effluent
limitations which are less stringent than the comparable
effluent limitations in the previous permit. In the case of
effluent limitations established on the basis of section
30l(b)(l)(C) or section 303 (d) or (e). a permit may not
be renewed, reissued, or modified to contain effluent
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limitations which are less stringent than the comparable
effluent limitations in the previous permit except in
compliance with section 303(d)(4).
(2) Exceptions. A permit with respect to which
paragraph (1) applies may be renewed, reissued, or
modified to contain a less stringent effluent limitation
applicable to a pollutant if
(A) material and substantial alterations or additions
to the permitted facility occurred after permit issuance
which justify the application of a less stringent effluent
limitation;
(B)(i) information is available which was not avail-
able at the time of permit issuance.(other than revised
regulations, guidance, or test methods) and which would
have justified the application of a less stringent effluent
limitation at the time of permit issuance; or
(ii) the Administrator determines that technical mis-
takes or mistaken interpretations of law were made in
issuing the permit under subsection (a)(l)(B);
(C) a less stringent effluent limitation is necessary
because of events over which the permittee has no
control and for which there is no reasonably available
remedy;
(D) the permittee has received a permit modification
under section 30l(c), 301(g), 301(h), 301(i), 30l(k),
301(n), or316(a);or
(E) the permittee has installed the treatment facilities
required to meet the effluent limitations in the previous
permit and has properly operated and maintained the
facilities but has nevertheless been unable to achieve the
previous effluent limitations, in which case the limita-
tions in the reviewed, reissued, or modified permit may
reflect the level of pollutant control actually achieved
(but shall not be less stringent than required by effluent
guidelines in effect at the time of permit renewal, reis-
suance, or modification).
Subparagraph (B) shall not apply to any revised waste
load allocations or any alternative grounds for translat-
ing water quality standards into effluent limitations,
except where the cumulative effect of such revised allo-
cations results in a decrease in the amount of pollutants
discharged into the concerned waters, and such revised
allocations are not the result of a discharger eliminating
or substantially reducing its discharge of pollutants due
to complying with the requirements of this Act or for
reasons otherwise unrelated to water quality.
(3) Limitations. "In no event may a permit with
respect to which paragraph (1) applies be renewed,
reissued, or modified to contain an effluent limitation
which is less stringent than required by effluent guide-
lines in effect at the time the permit is renewed, reissued,
or modified. In no event may such a permit to discharge
into waters be renewed, reissued, or modified to contain
a less stringent effluent limitation if the implementation
of such limitation would result in a violation of a water
quality standard under section 303 applicable to such
waters.
(p) Municipal and Industrial Stormwater Dis-
charges.
(1) General Rule. Prior to October 1. 1992, the
Administrator or the State (in the case of a permit
program approved under section 402 of this Act) shall
not require a permit under this section for discharges
composed entirely of stormwater.
(2) Exceptions. Paragraph (I) shall not apply with
respect to the following stormwater discharges:
(A) A discharge with respect to which a permit has
been issued under this section before the date of the
enactment of this subsection.
(B) A discharge associated with industrial activity.
(C) A discharge from a municipal separate storm
sewer system serving a population of 250,000 or more.
(D) A discharge from a municipal separate storm
sewer system serving a population of 100,000 or more
but less than 250,000.
(E) A discharge for which the Administrator or the
State, as the case may be, determines that the storm-
water discharge contributes to a violation of a water
quality standard or is a significant contributor of pollu-
tants to waters of the United States.
(3) Permit Requirements.
(A) Industrial Discharges. Permits for discharges
associated with industrial activity shall meet ail applica-
ble provisions of this section and section 301.
(B) Municipal Discharge. Permits for discharges
from municipal storm sewers
(i) may be issued on a system or jurisdiction-wide
basis;
(ii) shall include a requirement to effectively prohibit
non-stormwater discharges into the storm sewers; and
(iii) shall require controls to reduce the discharge of
pollutants to the maximum extent practicable, including
management practices, control techniques and system.
design and engineering methods, and such other provi-
sions as the Administrator or the State determines ap-
propriate for the control of su.h pollutants.
(4) Permit Application Requirements.
(A) Industrial and Large Municipal Discharges.
Not later than 2 years after the date of the enactment of
this subsection, the Administrator shall establish regula-
tions setting forth the permit application requirements
for stormwater discharges described in paragraphs
(2)(B) and (2)(C). Applications for permits for such
discharges shall be filed no later than 3 years after such
date of enactment. Not later than 4 years after such date
of enactment, the Administrator or the State, as the case
may be, shall issue or deny each such permit. Any such
permit shall provide for compliance as expeditiously as
practicable, but in no event later than 3 years after the
date of issuance of such permit.
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WATER POLLUTION ACT
(B) Other Municipal Discharges. Not later than 4
years after the date of the enactment of this subsection,
the Administrator shall establish regulations setting
forth the permit application requirements for storm-
water discharges described in paragraph (2)(D). Appli-
cations for permits for such discharges shall be filed no
later than 5 years after such date of enactment. Not
later than 6 years after such date of enactment, the
Administrator or the State, as the case may be, shall
issue or deny each such permit. Any such permit shall
provide for compliance as expeditiously as practicable,
but in no event later than 3 years after the date of
issuance of such permit.
(5) Studies. The Administrator, in consultation
with the States, shall conduct a study for the purposes
of
(A) identifying those stormwater discharges or classes
of stormwater discharges for which permits are not
required pursuant to paragraphs (1) and (2) of this
subsection;
(B) determining, to the maximum extent practicable,
the nature and extent of pollutants in such discharges;
and
(C) establishing procedures and methods to control
stormwater discharges to the extent necessary to miti-
gate impacts on water quality.
Not later than October 1, 1988, the Administrator shall
submit to Congress a report on the results of the study
described in subparagraphs (A) and (B). Not later than
October 1, 1989, the Administrator shall submit to
Congress a report on the results of the study described in
subparagraph (C).
(6) Regulations. Not later than October 1, 1992,
the Administrator, in consultation with State and local
officials, shall issue regulations (based on the results of
the studies conducted under paragraph (5)) which des-
ignate stormwater discharges, other than those dis-
charges described in paragraph (2), to be regulated to
protect water quality and shall establish a comprehen-
sive program to regulate such designated sources. The
program shall, at a minimum, (A) establish priorities,
(B) establish requirements for State stormwater man-
agement programs, and (C) establish expeditious dead-
lines. The program may include performance standards.
guidelines, guidance, and management practices and
treatment requirements, as appropriate.
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DISPOSAL OF SEWAGE SLUDGE
Sec. 405. (a) Notwithstanding any other provision of
this Act or of any other law, in the case where the dis-
posal of sewage sludge resulting from the operation of
a treatment works as defined in section 212 of this Act
(including the removal of in-place sewage sludge from
one location and Us deposit at another location) would
result in any pollutant from such sewage sludge entering
the navigable waters, such disposal is prohibited except
in accordance with a permit issued by the Administrator
under section 402 of this Act.
(b) The Administrator shall issue regulations govern-
ing the issuance of permits for the disposal of sewage
sludge subject to subsection (a) of this section and sec-
tion 402 of this Act. Such regulations shall require the
application to such disposal of each criterion, factor.
procedure, and requirement applicable to a permit
issued under section 402 of this title.
(c) Each State desiring to administer its own permit
program for disposal of sewage sludge subject to sub-
section (a) of this section within its jurisdiction may do
so in accordance with section 402 of this Act.
(d) Regulations.
(1) Regulations. The Administrator, after consulta-
tion with appropriate Federal and State agencies and other
interested persons, shall develop and publish, within
one year after the date of enactment of this subsection
and from time to time thereafter, regulations providing
guidelines for the disposal of sludge and the utilization
of sludge for various purposes. Such regulations shall
(A) identify uses for sludge, including disposal:
(B) specify factors to be taken into account in deter-
mining the measures and practices applicable to each
such use or disposal (including publication of informa-
tion on costs);
(C) identify concentrations of pollutants which inter-
fere with each such use or disposal.
The Administrator is authorized to revise any regu-
lation issued under this subsection.
(2) Identification and Regulation of Toxic Pollutants.
(A) On Basis of Available Information.
(i) Proposed Regulations. Not later than Novem-
ber 30, 1986, the Administrator shall identify those toxic
pollutants which, on the basis of available information
on their toxicity, persistence, concentration, mobility, or
potential for exposure, may be present in sewage sludge
in concentrations which may adversely affect public
health or the environment, and propose regulations
specifying acceptable management practices for sewage
sludge containing each such toxic pollutant and estab-
lishing numerical limitations for each such pollutant for
each use identified under paragraph (1)(A).
(ii) Final Regulations. Not later than August 31,
1987, and after opportunity for public hearing, the
Administrator shall promulgate the regulations required
by subparagraph (A)(i).
(B) Others.
(i) Proposed Regulations. Not later than July 31.
1987, the Administrator shall identify those toxic pollu-
tants not identified under subparagraph (A)(i) which
may be present in sewage sludge in concentrations which
may adversely affect public health or the environment,
and propose regulations specifying acceptable manage-
ment practices for sewage sludge containing each such*
toxic pollutant and establishing numerical limitations for
each pollutant for each such use identified under para-
graph (1)(A).
(ii) Final Regulations. Not later than June 15,
1988, the Administrator shall promulgate the regula-
tions required by subparagraph (B)(i).
(C) Review. From time to time, but not less often
than every 2 years, the Administrator shall review the
regulations promulgated under this paragraph for the
purpose of identifying additional toxic pollutants and
promulgating regulations for such pollutants consistent
with the requirements of this paragraph.
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(D) Minimum Standards: Compliance Date. The
management practices and numerical criteria estab-
lished under subparagraphs (A), (B), and (C) shall be
adequate to protect public health and the environment
from any reasonably anticipated adverse effects of each
pollutant. Such regulations shall require compliance as
cxpcditiously as practicable but in no case later than 12
months after their publication, unless such regulations
require the construction of new pollution control facili-
ties, in which case the regulations shall require compli-
ance as expeditiously as practicable but in no case later
than two years from the date of their publication.
(Sec. 405(d)(2) (5) added by PL 100-4]
(3) Alternative Standards. For purposes of this
subsection, if, in the judgment of the Administrator, it is
not feasible to prescribe or enforce a numerical limita-
tion for a pollutant identified under paragraph (2), the
Administrator may instead promulgate a design, equip-
ment, management practice, or operational standard, or
combination thereof, which in the Administrator's judg-
ment is adequate to protect public health and the envi-
ronment from any reasonably anticipated adverse effects
of such pollutant. In the event the Administrator pro-
mulgates a design or equipment standard under this
subsection, the Administrator shall include as part of
such standard such requirements as will assure the
proper operation and maintenance of any such element
of design or equipment.
(4) Conditions on Permits Prior to the promulga-
tion of the regulations required by paragraph (2), the
Administrator shall impose conditions in permits issued
to publicly owned treatment works under section 402 of
this Act or take such other measures as the Administra-
tor deems appropriate to protect public health and the
environment from any adverse effects which may occur
from toxic pollutants in sewage sludge.
(5) Limitation on Statutory Construction. Nothing
in this section is intended to waive more stringent re-
quirements established by this Act or any other law.
[Editor's note: Section 406(e) of PL 100-4 stipulates:
"(e) Removal Credits. The part of the decision of
Natural Resources Defense Council, Inc. v. U.S. Envi-
ronmental Protection Agency, No. 84-3530 (3d. Cir.
1986), which addresses section 405(d) of the Federal
Water Pollution Control Act is stayed until August 31,
1987, with respect to
(I) those publicly owned treatment works the owner
or operator of which received authority to revise pre-
treatment requirements under section 307(b)(l) of such
Act before the date of the enactment of this section, and
(2) those publicly owned treatment works the owner
or operator of which has submitted an application for
authority to revise pretreatment requirements under
such section 307(b)(l) which application is pending on
such date of enactment and is approved before August
31, 1987.
The Administrator shall not authorize any other remov-
al credits under such Act until the Administrator issues
the regulations required by paragraph (2)(A)(ii) of sec-
tion 405(d) of such Act, as amended by subsection (a) of
this section."]
(e) Manner of Sludge Disposal. The determination
of the manner of disposal or use of sludge is a local
determination, except that it shall be unlawful for any
person to dispose of sludge from a publicly owned treat-
ment works or any other treatment works treating do-
mestic sewage for any use for which regulations have
been established pursuant to subsection (d) of this sec-
tion, except in accordance with such regulations.
[Sec. 405(e) revised by PL 100-4]
(0 Implementation of Regulations.
(1) Through Section 402 Permits. Any permit
issued under section 402 of this Act to a publicly owned
treatment works or any other treatment works treating
domestic sewage shall include requirements for the use
and disposal of sludge that implement the regulations
established pursuant to subsection (d) of this section,
unless such requirements have been included in a permit
issued under the appropriate provisions of subtitle C of
the Solid Waste Disposal Act, part C of the Safe
Drinking Water Act, the Marine Protection, Research,
and Sanctuaries Act of 1972, or the Clean Air Act, or
under State permit programs approved by the Adminis-
trator, where the Administrator determines that such
programs assure compliance with any applicable require-
ments of this section. Not later than December 15, 1986,
the Administrator shall promulgate procedures for ap-
proval of State programs pursuant to this paragraph.
(2) Through Other Permits. In the case of a
treatment works described in paragraph (I) that is not
subject to section 402 of this Act and to which none of
the other above listed permit programs nor approved
State permit authority apply, the Administrator may
issue a permit to such treatment works solely to impose
requirements for the use and disposal of sludge that
implement the regulations established pursuant to subse-
tion (d) of this section. The Administrator shall include
in the permit appropriate requirements to assure compli-
ance with the regulations established pursuant to subse-
tion (d) of this section. The Administrator shall establish
procedures for issuing permits pursuant to this
paragraph.
[Sec. 405(0 added by PL 100-4]
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GENERAL DEFINITIONS
Sec. 502. Except as otherwise specifically provided,
when used in this Act:
(1) The term "State water pollution control agency"
means the State agency designated by the Governor
having responsibility for enforcing State laws relating
to the abatement of pollution.
(2) The term "interstate agency" means an agency of
two or more States established by or pursuant to an
agreement of compact approved by the Congress, or
any other agency of two or more. States, having sub-
stantial powers or duties pertaining to the control of
pollution as determined and approved by the Admini-
strator.
(3) The term "State" means a State, the District of
Columbia, the Commonwealth of Puerto Rico, the Vir-
gin Islands, Guam, American Samoa, the Common-
wealth of the Northern Mariana Islands, and the Trust
Territory of the Pacific Islands.
(Sec. 502(3) amended by PL 100-4]
(4) The term "municipality" means a city, town,
borough, county, parish, district, association, or other
public body created by or pursuant to State law and
having jurisdiction over disposal of sewage, industrial
wastes, or other wastes, or an Indian tribe or an autho-
rized Indian tribal organization, or a designated and
approved management agency under section 208 of this
Act.
(5) The term "person" means an individual, corpor-
ation, partnership, association. State, municipality,
commission, or political subdivision of a State, or any
interstate body.
(6) The term "pollutant" means dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discarded equip-
ment, rock, sand, cellar dirt and industrial, municipal,
and agricultural waste discharged into water. This term
does not mean (A) "sewage from vessels" within the
meaning of section 312 of this Act; or (B) water, gas, or
other material which is injected into a well to facilitate
production of oil or gas, or water derived in association
with oil or gas production and disposed of in a well, if
the well used either to facilitate production or for dis-
posal purposes is approved by authority of the State in
which the well is located, and if such State determines
that such injection or disposal will not result in the de-
gradation of ground or surface water resources.
(7) The term "navigable waters" means the waters of
the United States, including the territorial seas.
(8) The term "territorial seas" means the belt of the
seas measured from the line of ordinary low water
along that portion of the coast which is in direct con-
tact with the open sea and the line marking the seaward
limit of inland waters, and extending seaward a dis-
tance of three miles.
(9) The term "contiguous zone" means the entire
zone established or to be established by the United
States under article 24 of the Convention of the Terri-
torial Sea and the Contiguous Zone.
(10) The term "ocean" means any portion of the
high seas beyond the contiguous zone.
(11) The term "effluent limitation" means any re-
striction established by a State or the Administrator on
quantities, rates, and concentrations of chemical, physi-
cal, biological, and other constituents which are dis-
charged from point sources into navigable waters, the
waters of the contiguous zone, or the ocean, including
schedules of compliance.
(12) The term "discharge of a pollutant" and the
term "discharge of pollutants" each means (A) any ad-
dition of any pollutant to navigable waters from any
point source, (B) any addition of any pollutant to the
waters of the contiguous zone or the ocean from any
point source other than a vessel or other floating craft.
(13) The term "toxic pollutant" means those pollu-
tants, or combinations of pollutants, including disease-
causing agents, which after discharge and upon ex-
posure, ingestion, inhalation or assimilation into any
organism, either directly from the environment or indi-
rectly by ingestion through food chains, will, on the
basis of information available to the Administrator,"
cause death, disease, behavioral abnormalities, cancer.
genetic mutations, physiological malfunctions (includ-
ing malfunctions in reproduction) or physical deforma-
tions, in such organisms or their offspring.
(14) The term "point source" means any discernible,
confined and discrete conveyance, including but not
limited to any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container, rolling stock, concen-
trated animal feeding operation, or vessel or other float-
ing craft, from which pollutants are or may be dis-
charged. This term does not include agricultural storm-
water discharges and return flows from irrigated
agriculture.
[Sec. 502(14) amended by PL 100-4]
[Editor's nose: Section 507 of PL 100-4 states:
"See. 507. DeSaitioa of Point Source.
For purposes of the Federal Water Pollution Control
Act, the term "point source" includes a landfill leachate
collection system."]
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71:5204
FEDERAL LAWS
(15) The term "biological monitoring" shall mean
the determination of the effects on aquatic life, includ-
ing accumulation of pollutants in tissue, in receiving
waters due to the discharge of pollutants (A) by tech-
niques and procedures, including sampling of organisms
representative of appropriate levels of the food chain
appropriate to the volume and the physical, chemical,
and biological characteristics of the effluent, and (B) at
appropriate frequencies and locations.
(16) The term "discharge" when used without quali-
fication includes a discharge of a pollutant, and a dis-
charge of pollutants.
(17) The term "schedule of compliance" means a
schedule of remedial measures including an enforceable
sequence of actions or operations leading to compliance
with an effluent limitation, other limitation, prohibi-
tion, or standard.
(18) The term "industrial user" means those indus-
tries identified in the Standard Industrial Classification
Manual, Bureau of the Budget, 1967, as amended and
supplemented, under the category "Division DManu-
facturing" and such other classes of significant waste
products as, by regulation, the Administrator deems
appropriate.
(19) The term "pollution" means the man-made or
man-induced alteration of the chemical, physical, bio-
logical and radiological integrity of water.
EMERGENCY POWERS
Sec. 504. (a) Notwithstanding any other provision of
this Act, the Administrator upon receipt of evidence
that a pollution source or combination of sources is pre-
senting an imminent and substantial endangerment to
the health of persons or to the welfare of persons where-
such endangerment is to the livelihood of such persons,
such as inability to market shellfish, may bring suit on
behalf of the United States in the appropriate district
court to immediately restrain any person causing or con-
tributing to the alleged pollution to stop the discharge of
pollutants causing or contributing to such pollution or
to take such other action as may be necessary.
(b) (504(b) repealed by PL 96-510. Sec. 304(a)]
CITIZEN SUITS
Sec. 50S. (a) Except as provided in subsection (b) of
this section, and section 309(g)(6) any citizen may
commence a civil action on his own behalf
[Sec. 50S(a) amended by PL 100-4]
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(1) against any person (including (t) the United
States, and (ii) any other governmental instrumentality
or agency to the extent permitted by the eleventh
amendment to the Constitution) who is alleged to be in
violation of (A) an effluent standard of limitation under
this Act or (B) an order issued by the Administrator or a
State with respect to such a standard or limitation, or
(2) against the Administrator where there is alleged a
failure of the Administrator to perform any act or duty
under this Act which is not discretionary with the Ad-
ministrator.
The district courts shall have jurisdiction, without re-
gard to the amount in controversy or the citizenship of
the parties, to enforce such an effluent standard or limi-
tation, or such an order, or to order the Administrator
to perform such act or duty, as the case may be, and to
apply any appropriate civil penalties under section 309
(d) of this Act.
(b) No action may be commenced
(1) under subsection (a) (1) of this section
(A) prior to sixty days after the plaintiff has given
notice of the alleged violation (i) to the Administrator,
(ii) to the State in which the alleged violation occurs,
and (iii) to any alleged violator of the standard, limita-
tion, or order, or
(B) if the Administrator or State has commenced and
is diligently prosecuting a civil or criminal action in a
court of the United States, or a State to require compli-
ance with the standard, limitation, or order, but in any
such action in a court of the United States any citizen
may intervene as a matter of right.
(2) under subsection (a) (2) of this section prior to
sixty days after the plaintiff has given notice of such
action to the Administrator.
except that such action may be brought immediately
after such notification in the case of an action under this
section respecting a violation of sections 306 and 307(a)
of this Act. Notice under this subsection shall be given in
such manner as the Administrator shall prescribe by
regulation.
(c) (1) Any action respecting a violation by a dis-
charge source of an effluent standard or limitation or an
order respecting such standard or limitation may be
brought under this section only in the judicial district in
which such source is located.
(2) In such action under this section, the Administra-
tor, if not a party, may intervene as a matter of right.
(3) Protection of Interests of United States. When-
ever any action is brought under this section in a court of
the United States, the plaintiff shall serve a copy of the
complaint on the Attorney General and the Administra-
tor. No consent judgment shall be entered in an action in
which the United States is not a party prior to 45 days
following the receipt of a copy of the proposed consent
judgment by the Attorney General and the
Administrator.
[Sec. 505 (c)(3) added by PL 100-4]
(d) The court, in issuing any final order in any action
brought pursuant to this section, may award costs of
litigation (including reasonable attorney and expert wit-
ness fees) to any prevailing or substantially prevailing
party, whenever the court determines such award is
appropriate. The court may, if a temporary restraining
order or preliminary injunction is sought, require the
filing of a bond or equivalent security in accordance with
the Federal Rules of Civil Procedure.
[Sec. 505(d) amended by PL 100-4]
(e) Nothing in this section shall restrict any right
which any person (or class of persons) may have under
any statute or common law to seek enforcement of any
effluent standard or limitation or to seek any other re-
lief (including relief against the Administrator or a State
agency).
(0 For purposes of this section, the term "effluent
standard or limitation under this Act" means (1) effec-
tive July 1, 1973, an unlawful act under subsection (a)
of section 301 of this Act; (2) an effluent limitation or
other limitation under section 301 or 302 of this Act; (3)
standard of performance under section 306 of this Act;
(3) prohibition, effluent standard or pretreatment stan-
dards under section 307 of this Act; (5) certification
under section 401 of this Act; (6) a permit or condi-
tion thereof issued under section 402 of this Act, which
is in effect under this Act (including a requirement ap-
plicable by reason of section 313 of this Act); or (7) a
regulation under section 405(d) of this Act,.
[Sec. 505(0 amended by PL 100-4]
(g) For the purposes of this section the term "citi-
zen" means a person or persons having an interest
which is or may be adversely affected.
(h) A Governor of a State may commmence a civil
action under subsection (a), without regard to the limi-
tations of subsection (b) of this section, against the Ad-
ministrator where there is alleged a failure of the Ad-
ministrator to enforce an effluent standard or limitation
under this Act the violation of which is occurring in
another State and is causing an adverse effect on the
public health or welfare in his State, or is causing a vio-
lation of any water quality requirement in his State.
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APPEARANCE
Sec. 506. The Administrator shall request the At-
torney General to appear and represent the United
States in any civil or criminal action instituted under this
Act to which the Administrator is a party. Unless the
Attorney General notifies the Administrator within a
reasonable time, that he will appear in a civil action, at-
torneys who are officers or employees of the Environ-
mental Protection Agency shall appear and represent
the United States in such action.
EMPLOYEE PROTECTION
Sec. 507. (a) No person shall fire, or in any other
way discriminate against, or cause to be fired or dis-
criminated against, any employee or any authorized rep-
resentative of employees by reason of the fact that such
employee or representative has filed, instituted, or
caused to be filed or instituted any proceeding under
this Act, or has testified or is about to testify in any pro-
ceeding resulting from the administration or enforce-
ment of the provisions of this Act.
(b) Any employee or a representative of employees
who believes that he has been fired or otherwise dis-
criminated against by any person in violation of subsec-
tion (a) of this section may, within thirty days after such
alleged violation occurs; apply to the Secretary of Labor
for a review of such firing or alleged discrimination. A
copy of the application shall be sent to such person who
shall be the respondent. Upon receipt of such applica-
tion, the Secretary of Labor shall cause such investiga-
tion to be made as he deems appropriate. Such investi-
gation shall provide an opportunity for a.public hearing
at the request of any party to such review to enable the
parties to present information relating to such alleged
violation. The parties shall be given written notice of the
time and place of the hearing at least five days prior to
the hearing. Any such hearing shall be of record and
shall be subject to section 554 of title 5 of the United
States Code. Upon receiving the report of such investi-
gation, the Secretary of Labor shall make findings of
fact. If he finds that such violation did occur, he shall is-
sue a decision, incorporating an order therein and his
bindings, requiring the party committing such violation
to take such affirmative action to abate the violation as
the Secretary of Labor deems appropriate, including,
but not limited to, the rehiring or reinstatement of the
employee or representative of employees to his former
position with compensation. If he finds that there was
no such violation, he shall issue an order denying the ap-
plication. Such order issued by the Secretary of Labor
under this subparagraph shall be subject to judicial re-
view in the same manner as orders and decisions of the
Administrator are subject to judicial review under this
Act.
(c) Whenever an order is issued under this section to
abate such violation, at the request of the applicant, a
sum equal to the aggregate amount of all costs and ex-
penses (including the attorney's fees), as determined by
the Secretary of Labor, to have been reasonably in-
curred by the applicant for, or in connection with, the
institution and prosecution of such proceedings, shall be
assessed against the person committing such violation.
(d) This section shall have ho application to any em-
ployee who, acting without direction from his employer
(or his agent) deliberately violates any prohibition of ef-
fluent limitation or other limitation under section 301 or
302 of this Act, standards of performance under section
306 of this Act, effluent standard, prohibition or pre-
treatment standard under section 307 of this Act, or any
other prohibition or limitation established under this
Act.
(e) The Administrator shall conduct continuing eval-
uations of potential loss or shifts of employment which
may result from the issuance of any effluent limitation
or order under this Act, including, where appropriate,
investigating threatened plant closures or reductions in
employment allegedly resulting from such limitation or
order. Any employee who is discharged or laid off,
threatened with discharge or lay-off, or otherwise dis-
criminated against by any person because of the alleged
results of any effluent limitation or order issued under
this Act, or any representative of such employee, may
request the Administrator to conduct a full investigation
of the matter. The Administrator shall thereupon inves-
tigate the matter and, at the request of any party, shall
hold public hearings on not less than five days notice.
and shall at such hearing require the parties, including
the employer involved, to present information relating
to the actual or potential effect of such limitation or or-
der on employment and on any alleged discharge, lay-
off, or other discrimination and the detailed reasons or
justification therefor. Any such hearing shall be of rec-
ord and shall be subject to section 554 of title 5 of the
United States Code. Upon receiving the report of such
investigation, the Administrator shall make findings of
fact as to the effect of such effluent limitation or order
on employment and on the alleged discharge, lay-off, or
discrimination and shall make such recommendations as
he deems appropriate. Such report, findings, and rec-
ommendations shall be available to the public. Nothing
in this subsection shall be construed to require or
authorize the Administrator to modify or withdraw any
effluent limitation or order issued under this Act.
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FEDERAL PROCUREMENT
Sec. 508. (a) No Federal agency may enter into any
contract with any person, who has been convicted of
any offense under section 309 (c) of this Act, for the
procurement of goods, materials, and services if such
contract is to be performed at any facility at which the
violation which gave rise to such conviction occurred,
and if such facility is owned, leased, or supervised by
such person, the prohibition in the preceding sentence
shall continue until the Administrator certifies that the
condition giving rise to such conviction has been cor-
rected.
(b) The Administrator shall establish procedures to
provide all Federal agencies with the notification neces-
sary for the purposes of subsection (a) of this section.
(c) In order to implement the purposes and policy of
this Act to protect and enhance the quality of the Na-
tion's water, the President shall, not more than one
hundred and eighty days after enactment of this Act,
cause to be issued an order (1) requiring each Federal
agency authorized to enter into contracts and each Fed-
eral agency which is empowered to extend Federal as-
sistance by way of grant, loan, or contract to effectuate
the purpose and policy of this Act in such contracting or
assistance activities, and (2) setting forth procedures,
sanctions, penalties, and such other provisions, as the
President determines necessary to carry out such re-
quirement.
(d) The President may exempt any contract, loan, or
grant from all or part of the provisions of this section
where he determines such exemption is necessary in the
paramount interest of the United States and he shall
notify the Congress of such exemption.
(e) The President shall annually report to the Con-
gress on measures taken in compliance with the purpose
and intent of this section, including, but not limited to,
'the progress and problems associated with such compli-
ance.
ADMINISTRATIVE PROCEDURE AND
JUDICIAL REVIEW
Sec. 509. (a) (1) For the purposes of obtaining in-
formation under section 305 of this Act, or carrying out
section 507 (e) of this Act. the Administrator may issue
subpenas for the. attendance and testimony of wit-
nesses and the production of relevant papers, books,
and documents, and he may administer oaths. Except
for effluent data, upon a showing satisfactory to the
Administrator that such papers, books, documents, or
information or particular part thereof, if made public.
would divulge trade secrets or secret processes, the Ad-
ministrator shall consider such record, report, or infor-
mation or particular portion thereof confidential in ac-
cordance with the purposes of section 1905 of title 18 of
the United States Code, except that such paper, book,
document, or information may be disclosed to other of-
ficers, employees, or authorized representatives of the
United States concerned with carrying out this Act, or
when relevant in any proceeding under this Act. Wit-
nesses summoned shall be paid the same fees and mile-
age that are paid witnesses in the courts of the United
States. In case of contumacy or refusal to obey a sub-
pena served upon any person under this subsection, the
district court of the United States for any district in
which such person is found or resides or transacts busi-
ness, upon application by the United States and after
notice to such person, shall have jurisdiction to issue an
order requiring such person to appear and give testi-
mony before the Administrator, to appear and produce
papers, books, and documents before the Administra-
tor, or both, and any failure to obey such order of the
court may be punished by such court as a contempt
thereof.
(2) The district courts of the United States are au-
thorized, upon application by the Administrator, to is-
sue subpenas for attendance and testimony of witnesses
and the production of relevant papers, books, and doc-
uments, for purposes of obtaining information under
sections 304 (b) and (c) of this Act. Any papers,- books,
documents, or other information or part thereof, ob-
tained by reason of such a subpena shall be subject to
the same requirements as are provided in paragraph (1)
of this subsection.
(b) (I) Review of the Administrator's action (A) in
promulgating any standard of performance under sec-
tion 306, (B) in making any determination pursuant to
section 306(b) (1) (C). (C) in promulgating any effluent
standard, prohibition, or pretreatment standard under
section 307, (D) in making any determination as to a
State permit program submitted under section 402(b),
(E) in approving or promulgating any effluent limita-
tion or other limitation under sections 301, 302. 306, or
405 [,] (F) in issuing or denying any permit under
section 402, and (G) in promulgating any individual
control strategy under section 304(1), may be had by any
interested person in the Circuit Court of Appeals of the
United States for the Federal judicial district in which
such person resides or transacts business which is direct-
ly affected by such action upon application by such
person. Any such application shall be made within 120
days from the date of such determination, approval.
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promulgation, issuance or denial, or after such date only
if such application is based solely on grounds which
arose after such 120th day.
[Sec. 509(b)(l) amended by PL 100-4]
(2) Action of the Administrator with respect to which
review could have been obtained under paragraph (1) of
this subsection shall not be subject to judicial review in
any civil or criminal proceeding for enforcement.
(3) Venue.
[Sec. 509(b)(3) added by PL 100-4]
(A) Selection Procedure. If applications for review
of the same agency action have been filed under para-
graph (I) of this subsection in 2 or more Circuit Courts
of Appeals of the United States and the Administrator
has received written notice of the filing of one or more
applications within 30 days or less after receiving written
notice of the filing of the first application, then the
Administrator shall promptly advise in writing the Ad-
ministrative Office of the United States Courts that
applications have been filed in 2 or-more Circuit Courts
of Appeals of the United States, and shall identify each
court for which he has written notice that such' applica-
tions have been filed within 30 days or less of receiving
written notice of the filing of the first such application.
Pursuant to a system of random selection devised for this
purpose, the Administrative Office thereupon shall,
within 3 business days of receiving such written notice
from the Administrator, select the court in which the
record shall be filed from among those identified by the
Administrator. Upon notification of such selection, the
Administrator shall promptly file the record in such
court. For the purpose of review of agency action which
has previously been remanded to the Administrator, the
record shall be filed in the Circuit Court of Appeals of
the United States which remanded such action.
(B) Administrative Provisions. Where applications
have been filed under paragraph (I) of this subsection in
two or more Circuit Courts of Appeals of the United
States with respect to the same agency action and the
record has been filed in one of such courts pursuant to
subparagraph (A), the other courts in which such appli-
cations have been filed shall promptly transfer such
applications to the Circuit Court of Appeals of the
United States in which the record has been filed. Pend-
ing selection of a court pursuant to subparagraph (A),
any court in which an application has been filed under
paragraph (I) of this subsection may postpone the effec-
tive date of the agency action until 15 days after the
Administrative Office his selected the court in which
the record shall be filed.
(C) Transfers. Any court in which an application
with respect to any agency action has been filed under
paragraph (1) of this subsection, including any court
selected pursuant to subparagraph (A), may transfer
such application to any other Circuit Court of Appeals
of the United States for the convenience of the parties or
otherwise in the interest of justice.
(4) Award of Fees. In any judicial proceeding
under this subsection, the court may award costs of
litigation (including reasonable attorney and expert wit-
ness fees) to any prevailing or substantially prevailing
party whenever it determines that such award is
appropriate.
[Sec. 509(b)(4) added by PL 100-4]
(c) In any judicial proceeding brought under subsec-
tion (b) of this section in which review is sought of a de-
termination under this Act required to be made on the
record after notice and opportunity for hearing, if any
party applies to the court for leave to adduce additional
evidence, and shows to the satisfaction of the court that
such additional evidence is material and that there were
reasonable grounds for the failure to adduce such evi-
dence in the proceeding before the Administrator, the
court may order such additional evidence (and evidence
in rebuttal thereof) to be taken before the Administrator
in such manner and upon such terms and conditions as
the court may deem proper. The Administrator may
modify his findings as to the facts, or make new find-
ings, by reason of the additional evidence so tafcen and
he shall file such modified or new findings, and his rec-
ommendation, if any, for the modification or setting
aside of his original determination, with the return of
such additional evidence.
STATE AUTHORITY
Sec. 510. Except as expressly provided in this Act,
nothing in this Act shall (1) preclude or deny the right of
any State or political subdivision thereof or interstate
agency to adopt or enforce (A) any standard or limita-
tion respecting discharges of pollutants, or (B) any re-
quirement respecting control or abatement of pollution;
except that if an effluent limitation, or other limitation,
effluent standard, prohibition, pretreatment standard,
or standard of performance is in effect under this Act,
such State or political subdivision or interstate agency
may not adopt or enforce any effluent limitation, or
other limitation, effluent standard, prohibition, pre-
treatment standard, or standard of performance which
is less stringent than the effluent limitation, or other
limitation, effluent standard, prohibition, pretreatment
standard, or standard of performance under this Act; or
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(g) State Revolving Fund Report.
(1) In General. Not later than February 10, 1990,
the Administrator shall submit to Congress a report on
the financial status and operations of water pollution
control revolving funds established by the States under
title VI of this Act. The Administrator shall prepare
such report in cooperation with the States, including
water pollution control agencies and other water pollu-
tion control planning and financing agencies.
(2) Contents. The report under this subsection
shall also include the following:
(A) an inventory of the facilities that are in significant
noncompliance with the enforceable requirements of this
Act;
(B) an estimate of the cost of construction necessary
to bring such facilities into compliance with such
requirements;
(C) an assessment of the availability of sources of
funds for financing such needed-construction, including
an estimate of the amount of funds available for provid-
ing assistance for such construction through September
30, 1999, from the water pollution control revolving
funds established by the States under title VI of this
Act;
(D) an assessment of the operations, loan portfolio,
and loan conditions of such revolving funds;
(E) an assessment of the effect on user charges of the
assistance provided by such revolving funds compared to
the assistance provided with funds appropriated pursu-
ant to section 207 of this Act; and
(F) an assessment of the efficiency of the operation
and maintenance of treatment works constructed with
assistance provided by such revolving funds compared to
the efficiency of the operation and maintenance of treat-
ment works constructed with assistance provided under
section 201 of this Act.
[Sec. 516(g) added by PL 100-4]
Sec. 518. Indian Tribes.
[New Sec. 518 added by PL 100-4]
(a) Policy. Nothing in this section shall be con-
strued to affect the application of section 101(g) of this
Act, and all of the provisions of this section shall be
carried out in accordance with the provisions of such
section 101(g). Indian tribes shall be treated as States
for purposes of such section 101(g).
(b) Assessment of Sewage Treatment Needs; Report.
The Administrator, in cooperation with the Director
of the Indian Health Service, shall assess the need for
sewage treatment works to serve Indian tribes, the de-
gree to which such needs will be met through funds
allotted to States under section 205 of this Act and
priority lists under section 216 of this Act, and any
obstacles which prevent such needs from being met. Not
later than one year after the date of the enactment of
this section, the Administrator shall submit a report to
Congress on the assessment under this subsection, along
with recommendations specifying (1) how the Adminis-
trator intends to provide assistance to Indian tribes, to
develop waste treatment management plans and to con--
struct treatment works under this Act, and (2) methods
by which the participation in and administration of
programs under this Act by Indian tribes can be
maximized.
(c) Reservation of Funds. The Administrator shall
reserve each fiscal year beginning after September 30,
1986, before allotments to the States under section
205(e), one-half of one percent of the sums appropriated
under section 207. Sums reserved under this subsection
shall be available only for grants for the development of
waste treatment management plans and for the construc-
tion of sewage treatment works to serve Indian tribes.
(d) Cooperative Agreements. In order to ensure the
consistent implementation of the requirements of this
Act, an Indian tribe and the State or States in which the
lands of such tribe are located may enter into a coopera-
tive agreement, subject to the review and approval of the
Administrator, to jointly plan and administer the re-
quirements of this Act.
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
(e) Treatment as States. The Administrator is
authorized to treat an Indian tribe as a State for pur-
poses of title II and sections 104, 106. 303, 305, 308,
309, 314. 319, 401. 402. and 404 of this Act to the
degree necessary to carry out the objectives of this
section, but only if
CD the Indian tribe has a governing body carrying out
substantial governmental duties and powers;
(2) the functions to be exercised by the Indian tribe
pertain to the management and protection of water
resources which are held by an Indian tribe, held by the
United States in trust for Indians, held by a member of
an Indian tribe if such property interest is subject to a
trust restriction on alienation, or otherwise within the
borders of an Indian reservation; and
(3) the Indian tribe is reasonably expected to be
capable, in the Administrator's judgment, of carrying
out the functions to be exercised in a manner consistent
with the terms and purposes of this Act and of all
applicable regulations.
Such treatment as a State may include the direct provi-
sion of funds reserved under subsection (c) to the govern-
ing bodies of Indian tribes, and the determination of
priorities by Indian tribes, where not determined by the
Administrator in cooperation with the Director of the
Indian Health Service. The Administrator, in coopera-
tion with the Director of the Indian Health Service, is
authorized to make grants under title II of this Act in an
amount not to exceed 100 percent of the cost of a
project. Not later than 18 months after the date of the
enactment of this section, the Administrator shall, in
consultation with Indian tribes, promulgate final regula-
tions which specify how Indian tribes shall be treated as
States for purposes of this Act. The Administrator shall.
in promulgating such regulations, consult affected States
sharing common water bodies and provide a mechanism
for the resolution of any unreasonable consequences that
may arise as a result of differing water quality standards
that may be set by States and Indian tribes located on
common bodies of water. Such mechanism shall provide
for explicit consideration of relevant factors including,
but not limited to, the effects of differing water quality
permit requirements on upstream and downstream dis-
chargers, economic impacts, and present and historical
uses and quality of the waters subject to such standards.
Such mechanism should provide for the avoidance of
such unreasonable consequences in a manner consistent
with the objective of this Act.
(0 Grants for Nonpoint Source Programs. The
Administrator shall make grants to an Indian tribe
under section 319 of this Act as though such tribe was a
State. Not more than one-third of one percent of the
amount appropriated for any fiscal year under section
319 may be used to make grants under this subsection.
In addition to the requirements of section 319, an Indian
tribe shall be required to meet the requirements of
paragraphs (1), (2), and (3) of subsection (d) of this
section in order to receive such a grant.
(g) Alaska Native Organizations. No provision of
this Act shall be construed to
(1) grant, enlarge, or diminish, or in any way affect
the scope of the governmental authority, if any, of any
Alaska Native organization, including any federally-
recognized tribe, traditional Alaska Native council, or
Native Council organized pursuant to the Act of June
18, 1934 (48 Stat. 987). over lands or persons in Alaska;
(2) create or validate any assertion by such organiza-
tion or any form of governmental authority over lands or
persons in Alaska; or
(3) in any way affect any assertion that Indian coun-
try, as defined in section 1151 of title 18, United States
Code, exists or does not exist in Alaska.
(h) Definitions. For purposes of this section, the
term
(1) "Federal Indian reservation" means all land with-
in the limits of any Indian reservation under the jurisdic-
tion of the United States Government, notwithstanding
the issuance of any patent, and including rights-of-way
running through the reservation; and
(2) "Indian tribe" means any Indian tribe, band.
group, or community recognized by the Secretary of the
Interior and exercising governmental authority over a
Federal Indian reservation.
SHORT TITLE
Sec, 519 This Act may be cited as the "Federal Water
Pollution Control Act" (commonly referred to as the
Clean Water Act).
[Former Sec. 518 redesignated as 519 by PL 100-4]
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TABLE I.-SECTION 307-TOXIC POLLUTANTS
Acenaphthene
Acrolein
Acrylonitrile
Aldrin/Dieldrin
Antimony and compounds*
Arsenic and compounds
Asbestos
Benzene
Benzidine
Beryllium and compounds
Cadmium and compounds
Carbon tetrachloride
Chlordane (technical mixture and metabolites)
Chlorinated benzenes (other than dichlorobenzenes)
Chlorinated ethanes (including 1,2-dichloroethane,
1,1.1-trichloroethane, and hexachloroethane)
Chloroalkyl ethers (chloromethyl. chloroethyl, and
mixed ethers)
Chlorinated naphthalene
Chlorinated phenols (other than those listed elsewhere:
includes trichlorophenols and chlorinated cresols)
Chloroform
2-chlorophenol
Chromium and compounds
Copper and compounds
Cyanides
DDT and metabolites
Dichlorobenzenes (1,2-. 1.3-. and 1.4-dichlorobenzenes)
Dichlorobenzidine
Dichloroethylenes (1,1- and 1,2-dichloroethylene)
2.4-dichlorophenol
Dichloropropane and dichloropropene
2.4-dimethylphenol
Dinitrotoluene
Diphenylhydrazine
Endosulfan and metabolites
Endrin and metabolites
Ethylbenzene
Fluoranthene.
Haioethers (other than those listed elsewhere; includes
chlorophenylphenyl ethers, bromophenylphenyl ether,
bis(dischloroisopropyl) ether, bis-(chloroethoxy)
methane and polychlorinated diphenyl ethers) .
Halomethanes (other than those listed elsewhere; in-
cludes methylene chlorid methylchloride, methyl-
bromide, bromoform, dichlorobromomethane. tri-
chlorofluoromethane, dichlorodifluoromethane)
Heptachlor and metabolites
Hexachlorobutadiene
Hexachlorocyclohexane (all isomers)
Hexachlorocyclopentadiene
Isophorone
Lead and compounds
Mercury and compounds
Naphthalene
Nickel and compounds
Nitrobenzene
Nitrophenols (Including 2.4-dinitrophenol) dinitro-
cresol)
Nitrosamines
Pentachlorophenol
Phenol
Phthalate esters
Polychlorinated biphenyls (PCSs)
Polynuclear aromatic hydrocarbons (including benzan-
thracenes. benzopyrenes, benzofluoranthene. chry-
senes. dibenzanthracenes, and indenopyrenes)
Selenium and compounds
Silver and compounds
2.3,7,8- Tetrachlorodibenzo-p-dioxin (TCDD)
Tetrachloroethylene
Thallium and compounds
Toluene
Toxaphene
Trichloroethylene
Vinyl chloride
Zinc and compounds
The term "compounds" shall include organic and inorganic com-
pounds.
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Sec. 318. Uncon»oli
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
APPENDIX B
CRITERIA FOR NEUTRAL SELECTION OF
NPDES COMPLIANCE INSPECTION CANDIDATES
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CRITERIA FOR NEUTRAL SELECTION OF
NPDES COMPLIANCE INSPECTION CANDIDATES
A. BACKGROUND
In response to the Supreme Court decision in Marshall v. Barlow's Inc.. 436 U.S. 307 (1978), the
Agency developed neutral inspection criteria to be used when targeting compliance inspections. The
purpose of using the Neutral Inspection Plan is to eliminate any bias in choosing candidates for
compliance inspections.
Under the NPDES program [authorized by Section 402(a)(l) of the Clean Water Act], over 65,000
permits have been issued for the discharge of pollutants. Of these issued permits, about 7,500 have been
classified by EPA or States with NPDES authority as major permittees. The designation of a permittee
as "major" is based on a number of factors including quantity and potential environmental impact of the
wastewater source (e.g., toxicity). EPA's program to monitor compliance with terms and conditions of
issued NPDES permits is primarily designed to ensure the compliance of these major permittees.
Compliance inspections performed under the NPDES program can be divided into two general
categories: 1) those inspections based on administrative factors; and 2) those inspections based on
specific evidence of an existing violation (e.g., civil probable cause). Inspections based on the second
category are not neutral since they are based on prior knowledge of apparent or probable permit
violations. Factors which constitute specific evidence consist of: 1) violations reported on recent DMRs;
2) citizen complaints; 3) response to emergency situations, such as threats to public health or safety;
4) follow-up to previous inspections which indicated violations; and 5) specific enforcement case support.
The Agency has developed the Neutral Inspection Plan described in the remainder of this appendix to
schedule inspections based strictly on administrative factors.
B. UNIVERSE OF NPDES INSPECTION CANDIDATES
EPA and State personnel as well as authorized contractors have, upon the presentation of
credentials, the authority to enter and inspect all NPDES permitted facilities at any reasonable time,
regardless of other factors such as "major" or "minor" designations. Because of limited resources, not all
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
minor facilities are usually targeted for inspections each year. Consequently, the frequency with which
compliance inspections are performed is based on:
Discharger's environmental significance
Available resources
Types and mix of inspection being employed
Climatic and geographic influences on inspection logistics
Other factors influencing compliance monitoring such as the ability to follow-up on inspection
findings.
C BASIC SELECTION CRITERIA
When targeting permittees for neutral compliance inspections, the time that has passed since the
last inspection and the geographical grouping of the permittees are the only factors which may be
considered. Other information, such as data from DMRs which indicate apparent violations, would not
be used since this would constitute probable cause under the civil standard. However, the existence of
such data would not preclude the facility from being considered for a neutral inspection if this Neutral
Inspection Plan is followed during the selection process. The only permittees who would not be
considered when targeting neutral compliance inspections are permittees who are in current litigation
with EPA. (State litigation would not preclude an EPA inspection.)
D. NEUTRAL COMPLIANCE INSPECTIONS
To target inspections based on a Neutral Inspection Plan, permitting authorities must first
determine, the length of time that has passed since the last EPA or State inspection. This can be done
easily using the capabilities of the Permit Compliance System (PCS). A PCS report can be generated ,
which will print out each permittee in order by the date of the last inspection. Attachment A contains
a sample list which PCS can generate. A separate report can be generated for each State in the Region.
In some cases, it may be appropriate to use subdivisions (e.g., county) of a State. The permittees which
4
are highest on the list (greatest time since last inspection) will have the highest priority for neutral
inspections.
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
In order to minimize use of limited resources, inspection targeting should be based on both the
priority list and geographical grouping. For example, any permittee on the list may be targeted for an
inspection if it is in close physical proximity to a facility which is very high on the list. PCS can give the
names and most recent inspection dates for all permittees which are in the same county as a permittee
selected for an inspection.
The priority list will identify only those facilities which are possible targets for compliance
inspections during the current fiscal year. The exact timing of these inspections during the fiscal year
will be at the discretion of the permitting authority, based on logistics and other specific needs. The list
of permittees targeted for inspections may be amended at any time during the fiscal year. Similarly,
before the start of a new fiscal year, the permitting authority should reassess all permittees regardless of
whether all previously targeted inspections have been completed for the current fiscal year.
F INSTRUCTIONS FOR TARGETING INSPECTIONS BASED ON THE POINT
ASSESSMENT SYSTEM
To use the Neutral Inspection Plan, permitting authorities will first determine the percentage of
inspection resources that will be devoted to neutral administrative inspections. This will depend, to a
large extent, on the ongoing enforcement case load and the percentage of major permittees which have
probable violations of effluent limitations and compliance schedules. For example, the following
resources may be allocated for neutral inspection activities:
10 percent of CSI resources
25 percent of PAI resources
50 percent of CEI resources.
The remaining inspection resources would be reserved for inspections based on probable cause and
specific enforcement case support
EPA Regional staff should next determine the approximate number of neutral inspections that can
be completed using the resources allocated for each inspection type (CSI, CEI, and PAI). This number
will be flexible depending on the type and/or the number of outfalls and size of the permitted facility.
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
Each State will start with the permittees highest o;a the list and proceed down the priority list until
about one-third of the neutral inspection resources for that jurisdiction have been allocated. For
example, if the allocated inspection resources for neutral, inspections are enough for 30 inspections,
approximately the first 10 permittees on the priority list would be targeted. The permitting authorities
should then use the remaining 20 inspections for permittees which are grouped with the already targeted
candidates based on common geographical and/or special technical considerations. For example, once a
sampling inspection is scheduled for a facility with a high point rating, several more sampling
inspections, CEIs, or PAIs may be scheduled in the same geographical area. This will allow all these
facilities to be inspected during one inspection trip. Of course, permitting authorities are free to target
inspections to single facilities particularly when the facility is in close proximity to regional or field .
offices.
A specific percentage of inspection resources are set aside each fiscal year for enforcement case
support activities and emergency response. By the last quarter of the fiscal year, permitting authorities
should know to what extent these set-aside resources will be available for routine inspections. To the
extent that these resources become available, they should be utilized to inspect the remaining permittees
on the priority list.
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
ATTACHMENT A
SAMPLE PCS INSPECTION REPORT
The following page is similar to a printout from the PCS. It lists major NPDES facilities in the
imaginary State of ZX in order by the date of the last inspection. Permittees with no date listed for
inspections have not had an inspection which was noted in PCS. These permittees will have the highest
priority for neutral inspections.
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
55-
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
APPENDIX C
SAMPLE 308 LETTERS
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
SAMPLE 308 LETTERS
Date
Dear Mr.
Pursuant to the authority contained in Section 308 of the Federal Water Pollution Control Act (33
U.S.C. 1318), representatives of the U.S. Environmental Protection Agency (EPA), specifically, the
National Enforcement Investigations Center (NEIC) in Denver, Colorado, and/or Region , will
conduct an inspection of your company's manufacturing operations together with associated waste
treatment and discharge facilities. The inspection is planned for the week of and is
intended to determine degree of compliance with the requirements of the National Pollutant Discharge
Elimination System (NPDES) in the permit issued to your company. Our representatives will observe
your process operations; inspect and evaluate your monitoring/field/ laboratory equipment and methods;
examine appropriate records; and review or consider related ares of your pretreatment program.
The EPA visit will focus on procedures, and accordingly, it is requested that company monitoring under
conditions of the NPDES permit be scheduled to correspond precisely with this inspection. We ask only
that the company conduct its monitoring (for all parameters, if at all possible) under normal procedures
and practices. On-the-spot observation shall be made of sample collection, any field preservation of
samples, handling and transport of samples, field and analytical equipment in operation, and the actual
conduct of analytical/laboratory procedures. If analyses are conducted by an outside contractor, please
notify your agent that EPA personnel will evaluate analytical tests and methods as they are being
performed. Please inform us if these tests are conducted elsewhere than at your main manufacturing
location.
Please provide the name of any "new* individual whom we may not have had contact with in the past (if
such is necessary) to enable our access to the plant We would appreciate a list of safety equipment, if
required by our inspectors. Any reports or information that may be considered confidential by you will
be treated in accordance with Section 308(b) of the Act, but should be properly identified as such to
EPA, and necessary reasons for confidential claims will need to be made available to EPA, However,
"effluent data" are always considered accessible to the public
If you have any questions concerning this inspection, please telephone
of Denver, CO, at ' .
Sincerely yours,
.NEIC,
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A/8344B-239-01/LEGAPP.C
NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
Date
ABC Company:
Pursuant to the authority contained in Section 308 of the Federal Water Pollution Control Act (33
U.S.G 1318), representatives of the U.S. Environmental Protection Agency (EPA), specifically of the
National Enforcement Investigations Center (NEIC) or Region , may conduct an inspection of your
company's manufacturing operations, together with associated waste treatment and discharge facilities,
within the next 6 months. The inspection is designed to carry out EPA's responsibilities under Section
308. The persons who will conduct the inspections are authorized EPA representatives as referred to in
Section 308 and can present appropriate credentials. They will observe your process operations; inspect
and evaluate your monitoring/field/laboratory equipment and methods; examine monitoring and i
calibration records and other appropriate records; and will review or consider related areas of your
prctreatment program.
The EPA visit will focus on procedures and, accordingly, it is requested that company monitoring be
conducted under usual practices and procedures. On-the-spot observations shall be made of sample
collecting, field preservation of samples, handling and transport of samples, and field and analytical
equipment used in the actual conduct of analytical/laboratory procedures. If analyses are conducted by
an outside contractor, EPA personnel will also evaluate analytical tests and methods as they are being
performed. Please inform the inspector if any tests are conducted other than at your main
manufacturing location.
It is requested that plant process flow diagrams, waste treatment plant flow diagrams, and treatment
plant design data be made available to the inspectors during the first day of their inspection. The EPA
inspectors will also provide verification samples for analytical evaluation by your company for certain
pollutant parameters. The results of these tests, as well as the results of the compliance monitoring
sampling taken during the inspection, should be transmitted to the EPA's National Enforcement
Investigation Center, Denver Federal Center, P.O. Box 25227, Denver, Colorado 80225, within 2 weeks
of the EPA inspection.
Please inform the appropriate plant personnel to expect such an inspection to ensure a rapid plant entry
and to ensure that these surveys are conducted without unnecessary delay.
We appreciate your full cooperation in this matter.
Sincerely yours,
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
APPENDIX D
EPA MEMORANDA ON ENTRY PROCEDURES
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
I UNITED STATES-ENVIRONMENTAL PROTECTION AGENCY
^ .,,/ WASHINGTON. O.C. 20460
11 APR 1979
ENFORCEMENT
MEMORANDUM
TO:
F3CM:
Deputy Assistant Administrators for Enforcement
Assistant Administrator for Enforcement
SUBJECT: Development of Neutral Administrative Inspection Schemes
It is essential that all enforcement programs develop, as scon
as possible, neutral schemes for the conduct of all inspections. This
requirement is mandated by the decision of the Supreme Court in
Marshall v. Barlow's, Inc., U. S. , 98 S. Ct. 1816 (1973). As you
know, tne Saricw's decision addressed the issue of the need for and use
of warrants in conducting administrative inspections under various regula-
tory schemes. The Court stated, in general, that a warrant was necessary
when requested by the owner or person-in-charge of the establishment to be
inspected, but that the 'warrant need not be based on a showing of criminal
probable cause. Rather, a warrant would be issued if it could be shewn that
the establishment was being inspected pursuant to a neutral administrative
scheme.
The department of Justice and the Office of General Counsel agree
that there is an urgent need for each compliance monitoring program to develop
a neutral administrative scheme for inspections, and that such scher.es must
be put into writing. If the schenes are not documented until an inspection
warrant is sougnt, they will appear to be post hoc rationalizations for
ill-conceived or harassing inspectional programs and will not be favored by
the courts.
I believe 'J»at most of our compliance monitoring programs have
developed inspection programs which utilize neutral criteria. In some
instances, however, the total 'neutral scheme for each program has not been
formally documented. Examples of neutral criteria which could satisfy the
requirements of Barlow's are randan selection? inspecting all or a fixed
percentage of certain typps of facilities on an annual basis? ranking
inspections by the amount of controlled chemical substances manufactured,
processed or attributed in casnera; re-inspection of establishments which
exhibited prior violations? and other reasonable factors that show that the
establisntnant being inspected has not been selected for any arbitrary or
invidious reason. The Office of General Counsel will cooperate with the
Office of Enforcement in assuring that the neutral administrative schemes
developed by each program are conpatibLe with the Barlow's decision.
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NPDES Compliance Monitoring Inspector Training: LEGAL ISSUES
I £g=?7 1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
XT" aj~/ WASHINGTON. O.C. 20460
"4 j^jli?1
11 APR 1373
.MEMORANDUM
OFFICE OF ENFORCEMENT
TO: Regional Administrators
Surveillance and Analysis Division Directors
Enforcement Division Directors
FROM: Assistant Administrator
for Enforcement
SUBJECT: Conduct of Inspections After the Barlow's Decision
I. Summary
This document is intended to provide guidance to the Regions in
the conduct of inspections in light of the recent Supreme Court decision
in Marshall v. Barlow's, inc., U.S. , 98 S. Ct. 1816 (1978).
The cecisicn bears upon the neeTTo obtaUTwarrants or other process for
inspections pursuant to EPA-administered Acts.
In Barlow's, the Supreme Court held that an CSHA inspector vas not
entitled tc enter the non-public portions of a work site without eitte-
(l)'the owner's consent, or (2) a warrant. The decision protects the
owner against any penalty or other punishment for insisting upon a warrant.
In summary, Barlow's should only have a limited effect on
enforcement inspections:
Inspections will generally continue as usual;
an inspector is refused entry, EPA will seek a warrant thrown
the U.S. Attorney;
Sanctions will not b« imposed upon owners of establishments who insist
on a warrant before allowing inspections of the non-public portions
of an establishment.
The sccp« of the Barlow^s decision is broad. It affects all current
inspection programs of EPA, including inspections conducted by state
personnel and by contractors. The Agency's procedures for inspections,
particularly where entry is denied, were largely in accord with
the provisions of Barlow's before the Supreme Court issued its ruling.
Nevertheless, a numper or changes u» *gancy procedure are warranted. '
Thus, it is important that all personnel involved in the inspection
process be familiar with tne procedural guidelines contained in this docu-
luent.
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ttis document focuses en the preparation for and conduct cf inspec-
tions, including (1) how to proceed when entry is denied, (2) under what
circumstances a warrant is necessary, and (3} what shewing is neces-
sary to obtain a warrant.
II. Cssduct cf inspections
2:e following material examines the procedural aspects cf conducting
inspections under 2FA-administered Acts. Inspections are considered in
three stages: (1) preparation for inspection of premises, (2) entry er.t»
premises, and (3) procedures to be followed where entry is refused.
A. Preparation
Adequate preparation should include consideration of the follcwir;
factors concerning the general nature of warrants and the role of aerssr.r.ei
conducting inspections.
(1) Seeking a warrant Before Inspection
TUe Barlow's decision recognized that, on occasion, the Ager.cv rav
wish to obtain a warrant to conduct an inspection even before there has *
been any refusal to allow entry. Such a warrant nay be necessary when
surprise is particularly crucial to the inspection, or when a eempanv's
prior bad conduct and prior refusals make it likely that warrantless'
entry will be refused. ?re- inspection warrants may also be obtained where
the distance to a U.S. Attorney or a magistrate is considerable ao that
excessive travel tine would not be wasted if entry were denied.
At present, the seeking of such a warrant prior to an initial -inspection
should be an exceptional circumstance, and should be cleared thrcuch
Headquarters. If refusals to allow entry without a warrant increase, such
warrants may be sought more frequently. (For specific instructions on
how to obtain a warrant, see Part 0.)
(2) Administrative Inspections v. Criminal Investigations
It is particularly important for both inspectors and ^f-orneys to
be aware of the extent to which evidence sought in a civil inspection can
be used in a criminal natter, and to toow when it is necessary to secure a
criminal rather than a civil search warrant, TSiere are three basic rules
to temeuiber in this regard: (1) if the purpose of the inspection is to
discover and correct, through civil procedures, ncnconpliance with regulatory
requirements, an adniriis'csative inspection (civil) warrant may be used;
(2) if the inspection is in fact intended, in whole or i»» cart. to gather
evidence for a possible criminal prosecution, a criminal search warrant
must be obtained under Rile 41 of the Federal feiles of Criminal Procedure;
and (3) evidence obtained during a valid civil inspection is generally
admissible in criminal proceedings. Thes* principles arise from the recent
Supreme Court cases of Marshall v. Barlow's, inc. , surra; Michigan v. Tvler,
_ U.S. , 98 S.Ct. 1942 (1978); and U.S. v. LaSalle National Sank,
U.S. , 57 L. Ed*. 2d 221 (1978). TcTis not completely clear wnether
a combined investigation for civil and criminal violations may be properly
conducted under a civil or "administrative* warrant, but we believe that
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a civil warrant can properly be used unless t±e intention is clearly ta
conduct a criminal investigation.
(3) The Use of Contractors to Conduct Inspections
Several programs utilize privats contractors to aid in the conduct
of inspections. Since, for the purpose of inspections, these contractors
are agents of the Federal government, the restrictions of the Barlow's ;
decision also apply to them. If contractors are to be conducting
inspections without the presence of actual EPA inspectors, these con-
tractors should be given training in hew to conduct themselves when :
entry is refused. With, respect to obtaining or executing a warrant,
an SPA inspector should always participate in the process, even if
he was not at the inspection where entry was refused.
t(4) Inspections Gsndueted by State Personnel
The Barlow's holding applies tip inspections conducted by State
personnel and to joint Federal/State inspections. Because seme EPA
programs are largely implemented through the States, it is essential
that the Regions assure that Stats conducted inspections are conducted
in compliance with the Barlav's decision, and encourage the State inspec-
tors to consult with their legal advisors when there is a refusal ta
allow entry for inspection purposes. State personnel should be encouraged
to contact the EPA Regional Enforcement Office when any questions con-
cerning compliance with Barlow's arise.
With regard ta specific procedures for States to follow, the
important points to remember are: (1) The State should not seek for-
cible entry without a warrant or penalize an owner f JT insisting upon
a warrant, and (2) the State legal system should provide a mechanism for \
issuance of civil administrative inspection warrants. If a State is
enforcing an EPA program through a State statute/ the warrant process
should be conducted through the State judicial system. Where a State
inspector is acting as a cuiUacLut to the Agency, any refusal to,allow
entry should be handled as would a refused to an Agency inspector as .
described in section II.B.3. Where a State inspector is acting as a
Stats employe* with both Federal and State credential. h«_ -should utilize
Stats procredures unless the Federal warrant procedures are more advantageous,
in which case/ the warrant should be sought under the general procedures
described below. The Hegions sljculd also assure that all States which
enfores EPA programs report any denials of entry to tie appropriate
Headquarters Enforcement Attorney for the reasons discussed in section
II.B.4. i
S. Entry
(1) Consensual Entry
One of the assumptions underlying the Gauri's decision is that
most inspections will be consensual and that the administrative inspec- ',
tion framework will thus not be severely disrupted. Consequently, inspec-
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ticns will normally continue as before the Barlow1 s decision was issued.
This means that the inspector will not normally secure a warrant before
undertaking an inspection but, in an attempt to gain admittance, will
present his credentials and issue a notice of inspection where required.
The establishment owner may complain about allowing an inspector to enter
or otherwise express his displeasure with EPA or the Federal government.
However, as long as he allows the inspector to enter, the entry is voluntary
and consensual unless the inspector is expressly told to leave the premises.
Cn the other hand, if the inspector has gained entry in a coercive manner
(either in a verbal or physical sense), the entry would not be consensual.
Consent must be given by the owner of the premises or the person in
charge of the premises at the time of the inspection. In the absence
of the owner, the inspector should make a good faith effort to determine
who is in charge of the establishment and present his credentials to
that person. Consent is generally needed only to inspect the non-public
portions of an establishment - i.e., any evidence that an inspector obtains
while in an area open to the public is admissible in an enforcement
proceeding.
(2) Withdrawal of Consent
The owner may withdraw his consent to the inspection at any time.
The inspection is valid to the extent to which it has progressed before
consent was withdrawn. Thus, observations by the inspector, including
samples and photographs obtained before consent was withdrawn, would be
admissible in any subsequent enforcement action. Withdrawal of consent
is tantanount to a refusal to allow entry and should be treated as
discussed in section II.B.3. below, unless the inspection had progressed
far enough to accomplish its purposes.
(3) When Entry is Refused
Barlow's clearly establishes that the owner does have the right
to ask for a warrant under normal circumstances. Therefore, refusal
to allow entry for inspectional purposes will not lead to civil or criminal
penalties if the refusal is based on the inspector's lack of a warrant
and one of the exemptions discussed in Part C does not apply. If the
owner were to allow"the inspector to enter his esL-blishment only in
response to a threat of enforcement liability, it is quite possible that
any evidence obtained in such an inspection would be inadmissible. An
inspector may, however, inform the owner who refuses entry that he intends
to seek a warrant to cancel the inspection. In any event, when entry is
FIFRA inspections are arguably not subject to this aspect of Barlcw's
See discussion, p. 5 and 6.
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refused, the inspector should leave the premises immediately and telephone
the designated Regional Enforcement Attorney as soon as possible for
further instructions. The Regional safer cement Attorney should contact
the U.S. Attorney's Office for the district in which the establishment
desired to be inspected is located and explain to the appropriate Assistant
United States Attorney the need for a warrant to conduct the particular
inspection. The Regional Attorney should arrange for the 'Jnited states
Attorney to meet with the inspector as soon as possible. The inspector
should bring a copy of the appropriate draft warrant and affidavits.
Samples are provided in the appendix to this document.
(4) Headquarters Motificaticn
It is essential that the Pegions keep Headquarters informed of
all refusals to allow entry. The Regional Attorney should inform the
appropriate Headquarters Enforcement Attorney of any refusals to enter
and should send a copy of all papers filed to Headquarters. It is
necessary for Headquarters to monitor refusals and Regional success in
obtaining warrants to evaluate the need for improved procedure-i and to
assess the impact of Barlow's on cur compliance monitoring prograns.
C. Areas ''There a Plcht of Warrantless Entry Still Exists
1. Emergency Situations.
In an snergency, where there is no time to get « warrant, a warrant-
less, inspection is permissible. In Camera v. Municipal Court, 387 U.S. 523
(1967), the Supreme Court states that "notning we say today is intended
to foreclose prompt inspections, even without a warrant, that the law has
traditionally upheld in energency situations". Nothing stated in Barlow's :
indicates any intention by the court to retreat from this position. The
Regions will always have to exercise considerable judgment concerning
whether to secure a warrant when dealing with an emergency situation.
However, if entry is refused during an emergency, the Agency would need
the assistance of the U.S. Marshal to gain entry, and a warrant could
probably be obtained during the- time necessary to secure that Marshal's
assistance.
An energency situation would Include potential imminent hazard
situations, as well as, situations where there is potential fo?r destruction
of evidence or where evidence of a suspected violation may disappear during
the time that a warrant is being obtained.
(2) ETFRA Inspections.
There are some grounds for interpreting Barlow's as iot b^ing
applicable to FIERA inspections. The Barlow's restrictions do not apply
to areas that have been subject to a long standing and pervasive history
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of governnent regulation. An Agency administrative law judge held recently
that even after the Barlow's decision, refusal to allow a warrantless
inspection of a ETT3A regulated establishment properly subjected the
owner to civil penalty. N. Jonas S Co., Inc., I.F. & R Docket No. III-121C
(July 27, 1978). For the present, however, FIFSA inspections should be
conducted under the sane requirements applicable to other enforcement
programs.
(3) "Open Fields" and "In Plain View" situations.
Observation by inspectors of things that are in plain view, (_!.£.,
of things that a member of the public could be in a position to observe) does
not require a warrant. Thus, an inspector's observations from the public
area of a plant or even from certain, private property not closed to
the public are admissible. Observations made even before presentation of
credentials while on private properly which is not normally closed to the
public are admissible.
D. Securing a Warrant
There are several general rules for securing warrants. Three
documents have to be drafted: (a) an application for a warrant, (b) an
accompanying affidavit, and (c) the warrant itself. Each document should be
captioned with the District Court of jurisdiction, the title of the action,
and the title of the particular document.
The application for a warrant should generally identify the statutes
and regulations under which the Agency is seeking the warrant, and should
clearly identify the site or establishment desired to be inspected
(including, if possible, the owner and/or operator of the site).
The application can be a one or two page document if all of the factual
background for seeking the warrant is stated in the affidavit, and the
application so states. The application should be signed by the U.S.
Attorney or by his Assistant U.S. Attorney.
The affidavits in support of the warrant application are crucial
documents. Each affidavit should consist of consecutively numbered para-
graphs, which describe all of the facts that support war^-nt issuance. If
the warrant is sought in the absence of probable cause, it should recite
or incorporate the neutral administrative scheme which is the basis for
inspecting the particular establishment. Each affidavit should be signed
by someone with personal knowlege of all the facts stated. In cases where
entry has been denied, this person would most likelj be the inspector
who was denied entry. Note that an affidavit is a sworn statement that
must either by notarized or personally sworn to before ti»e magistrate.
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The warrant is a direction to an appropriate official (an E2A
inspector, U.S. Marshal or other Federal officer) to enter a
specifically described location and perform specifically described
inspection functions. Since the inspection is limited by the terms of
the" warrant, it is important to specify to the broadest extent possible
the areas that are intended to be inspected, any records to be inspec-
ted, any samples to be taken, any articles to be seized, etc. While
a broad warrant may be permissible in civil administrative inspections,
a vague or overlv broad warrant will probably not be signed by the
maaistrate and may prove susceptible to constitutional challenge
The draftwarrant should be ready for the magistrate's signature at the
time of submission via a motion to quash and suppress evidence in
Federal District court. Once the magistrate signs the draft warrant, it
is an enforceable document. Either following the magistrate's signature
or en a separate page, the draft warrant should contain a "return of
service" or "certificate of service". This portion of the warrant should
indicate upon whom the warrant was personailly served and should be signed
and dated bv the inspector. ~As they are developed, more specific warrant-
issuance documents will be drafted and submitted to the Regions.
E. Standards or Bases for the Issuance of Administrative Warrants.
The Barlow's decision establishes three standards or bases for the
issuance of administrative warrants. Accordingly, warrants may be obtained
upon a showing: 1) of traditional criminal probable cause, 2) of civil
probable cause, or 3) that the establishment was selected for inspection
pursuant to a neutral administrative inspection scheme.
1. Civil specific probable cause warrant.
Where there is some specific probable cause for issuance of a warrant
such as an employee complaint or competitor's tip, the inspector should be
prepared to describe to the D.S. Attorney in detail the basis for this
probable cause.
The basis for probable cause will be stated in the affidavit in
support of the warrant. This warrant should be used when the suspected
violation is one that would result in a civij. penalty or other civil
action. ;
2. Civil probable cause based on a neutral administrative
inspection scheme.
Where there is no specific reason to think that a violation has been
-cnroitted, a warrant may still be issued if u.-» Agency can show that the
establishment is being inspected pursuant to a neutral administrative
scheme. As the Supreme Court stated in Parlow's;
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"Probable cause in the criminal law sense is not required.
For purposes of an administrative search, such as this,, probable
cause justifying the issuance of a warrant nay be cased net only
on specific evidence of an existing violation, but .also en a
shewing that "reasonable legislative or administrative standards
for conducting an ... inspection are satisfied with respeci
to a particular [establishment]". A varrant showing that a speci-
fic business has been chosen for an CSHA search on the basis cf a
general administrative plan for the enforcement of the act derived
frcm neutral sources such as, for example, dispersion of employees
in various c/pe cf industries across a given area, and tie desired
frequency of searches in any of the lesser divisions of the area, ,
would protect an employers fourth Amendment rights."
Every program enforced by the Agency has such a scheme by which it prioritises
and schedules its inspections. For example, a scheme under which'every permit
holder in a given program is inspected on an annual basis is a satisfactory
neutral administrative scheme. Also, a scheme in which one cut of every -tnree
known PCS transformer ~ipair shops is inspected on an annual basis is satis-
factory, as long as, neutral criteria such as random selection are used to
select the individual establishment to be inspected. Headquarters will prepare
and transmit to the Regions the particular neutral administrative scheme under
which each program's inspections are to be conducted. Inspections not based
on specific probable cause must be based on neutral administrative schemes for
a warrant to be issued. Examples of two neutral administrative schemes .are
provided in the appendix. (Attachments II and III) '
The Assistant U.S. Attorney will request the inspector to prepare; and
sign an affidavit that states the facts as he knows tnem. The -statement
should include the sequence of events culminating in the refusal to allow
entry and a recitation of either the specific probable cause or the
neutral administrative scheme which led to the particular establishment's
selection for inspection. The Assistant U.S. Attorney will then present
a recuest for an inspection warrant, a suggested warrant, and the inspector's
affidavit to a magistrate or Federal district court judge.2
3. .Criminal Warrants*
Where the purpose of the inspection is to gather evidence for a
criminal prosecution, the inspector and the Regional Attorney should request
that the U.S. Attorney seek a criminal warrant under Rule 41 of the Federal
Rules of Criminal ?rocedure. This requires a specific showing of probable
cause to believe tat evidence of a crime will be discovered. Agency policy
on the seeking of criminal warrants has not been affected by Barlcw' s. The
The Barlow's decision states that imposing the warrant requirement
on CSHA would not invalidate warrantless search provisions in other
re>juratory statutes; since many such statutes already "envision resort
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distinction between administrative inspections and criminal varrant
situations is discussed in Section II .A.2.
F. Inspecting with a Warrant
Cnce the warrant has been issued by the magistrate or judge, the
inspector may procaed to the establishment to commence or continue the
inspection. Where there is a high probability that ener/ will be refused
even with a warrant or vfcere there are threats of violence, the inspector
should be accompanied by a U.S. Marshal when he gees to serve the warrant
en the recalcitrant owner. The inspector should never hirself attempt
to make any forceful entry of the establishment. If the owner refuses
entry to an inspector holding a warrant but not accompanied by a U.S.
Marshal, the inspector should leave the establishment and inform the
Assistant U.S. Attorney ard the designated Regional Attorney. They will
take appropriate action such as seeking a citation for contempt. Where
the inspector is accompanied by a U.S. Marshal, the Marshal is principally
charg^"with executing the warrant. Thus, if a refusal or threat to
refuse occurs, the inspector should abide by the U.S. Marshal's decision
whether it is to leave, to seek forcible entry, or otherwise.
The inspector should conduct the inspection strictly Li accordance
with the warrant. If sampling is authorised, the inspector must be sure
to carefully follow all procedures, including the presentation of receipts
for all samples taken. If records or other prcpeirty are authorized to be
taken, the inspector-must receipt the property taken and maintain an
inventory of anything taken from the premises. This inventory will be
examined by the"magistrate to assure that the warrant's authority has
not been exceeded.
2 continued fron page 8.
to Federal court enforcement when entry is refused". There is thus
seme question as to whether the existence of a non-warrant Federal
court enforcement mechanl-n in a statute requires the use of that
irechanism rather tlian '.arrant issuance. We believe that the Barlow's
decision gives the agency the choice of whether to proceed through warrant
issuar.ee or through an application for an injunction, since the decision
is largely based on the fact that a warrant procedure imposes virtually
no burden on the inspecting agency. In addition, an agency could attempt
to secure a warrant prior to inspection on an ex carte basis, something
not available under norji.-1 injunction proceedings. Several of the acts
enforced by EPA have previsions allowing the Administrator to seek
injunctive relief tc assure compliance with the various parts of a
particular statute. There may be instances where it would be more appro-
priate to seek injurctive relief to gain entry to a facility than to
atttropt to secure a warrant for inspection, .although at this point we
cannot think of any. However, since the warrant process will be far
more expeditious than the seeking of an injunction, any decision to
s<£s>k ouch an injunction for inspection purposes should be cleared through
appropriate Headquarters staff.
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G. Returning the Warrant.
After the inspection has been completed, the warrant must ce rsturr.ec
to the magistrate. Whoever executes the warrant, (i.e., whoever performs
the inspection), must sign the return of service form indicating to whom
the warrant vas served and the date of service. He should then-re turn
the executed warrant to the U.S. Attorney who will formally return it to
the issuing magistrate or judge. If anything has been physically taken'
frcm the premises, such as records or samples, an inventory of such items
rust be submitted to the court, and the inspector must be present to certify
that the inventory is accurate and complete.
Ill. Conclusion
Except for requiring the Agency to formalize its neutral inspection
schemes, and for generally ending the Agency's authority for initiating
civil and/or criminal actions for refusal to allow warrantless inspections,
Barlow's should not interfere with EPA enforcement inspections.
Where there is doubt as to how to proceed in any entry case,
do not hesitate to call the respective Headquarters program contact for
assistance.
Marvin B. Durning
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APPENDIX E
EXAMPLE WARRANT INCLUDING UNDERLYING AFFIDAVIT
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EXAMPLE WARRANT APPLICATION
IN THE UNTIED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF COLORADO
IN THE MATTER OF:
REGAL CITRANT, INC
52 IMPRIORTTY DRIVE
EMBOIDEN, COLORADO 10101
APPLICATION FOR
ADMINISTRATIVE WARRANTS
NOW COMES the Director for the NPDES Permitting Authority, by and through its Attorney,
and applies for administrative warrants to enter, and to inspect Recal Citrant's premises, including
records, files, papers, processes, controls, and facilities which are involved in and associated with the
origination and treatment of pollutants discharged to John Muir Creek, a waters of the United States in
accordance with Sections 308(a)(B), 402(b)(2)(B), and 301(a) of the Federal Water Pollution Control
Act, 33 U.S.C 1318(a)(B), 1342(b)(2)(B), 1311(a), and regulations promulgated thereunder. In support
of this application, the Director respectfully submits an affidavit and proposed warrants.
J. Cheever Loophole
Permitting Authority Attorney
By:
Permitting Authority Attorney
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EXAMPLE AFFIDAVIT BY EMPLOYEE
State of New Hampshire
Oxford County
I, Mister Inspector, being duly sworn, hereby depose and say:
I am a duly authorized employee of the Permitting Authority, and my title is Chemical
Engineer, Surveillance and Analysis Division, which includes Oxford County in New Hampshire.
In my capacity, I am responsible for inspection facilities subject to various (State and Federal)
environmental statutes as directed by my supervisors.
On Tuesday, August 1, 1987, from about 7:45 p.m. to 8:45 p.m., I made a preliminary
inspection of the CLAW facility and took two samples at the open pits. On Wednesday,
August 2, 1987,1 took some photographs of the facility from around 3:30 p.m. until 5:30 p.m.
On Thursday, August 3, 1987, accompanied by another Permit Authority employee, I visited the
facility and area from about 11:30 a.m. to 2:00 p.m. and while there took additional
photographs. These brief visits to the site have only involved facility employees a few minutes
each time in order to obtain passes from the field office and to open gates at various guard
houses.
On Friday, August 4, 1987, a local deputy sheriff, State and local officials, and I were refused
admittance to the CLAW facility. Also, CLAW officials were no longer at the field house or
available elsewhere to issue passes to enter. My previous sampling and inspection were not
sufficient for laboratory purposes and need to be resumed.
Information I have gathered in the local community, in newspapers, on television, from
laboratory tests of the sample, from the sheriffs office, and at the CLAW facility strongly
suggests and supports the need to enter and inspect the facility for possible Section 301 and
other violations of the Federal Water Pollution Control Act Further, it is possible that there
are hazardous waste and conditions on the premises as defined in Section 1004(5) of the
Resource Conservation and Recovery Act (42 U.S.C 6903) which constitute an imminent
hazard under Section 7003 of the Resource Conservation and Recovery Act of 1976 (42 U.S.C
6973). These observations are:
- Obvious spillage of waste material on the grounds of the CLAW facility subject to entering
waterways.
- Contaminated landfills having obviously exposed and damaged barrels with their contents
emptied or nearly empty.
- Drainage from landfills into a "fishing lake" and other adjacent areas leading to various
waterways.
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- Open pits containing oil wastes and hazardous, toxic chemical wastes with the appearance of
overflow wastes on the adjacent grounds as well as high water marks on trees next to the
open pits equal to or higher than the pits.
- The lack of levees between the facility grounds and drainage areas to the Grand River
"fishing lake".
- Copies of a few facility log records and other documents which were previously copied by
the local sheriffs office. These records indicate the receipt and content of oil and
hazardous chemical wastes accepted at the facility.
- Poor maintenance and sloppy "housekeeping" practices at the facility which leads a
reasonable person to recognize the likelihood of these prohibited pollutants entering
nearby waterways including waters of the United States and its tributaries, as well as posing
a threat to the environment and the public health and welfare of New Hampshire.
- The reported death of a 19-year old truck driver at the CLAW open pits on July 25, 1987,
while he was discharging waste into an open pit at the facility. The death was possibly
caused by his inhalation of toxic fumes caused by a reaction of mixing incompatible toxic
wastes in the open pit Two eyewitnesses to the death of the driver reported the presence
of choking fumes in the area when they opened the doors of their truck to assist the driver
who died. They also reported that his truck was parked at the edge of the open pit with
the doors open at the time of death. Subsequent laboratory tests of waste taken from the
pits have shown waste materials were present in the pit which, when mixed with the spent
caustic being discharged from the driver's truck, could have caused the death. Final autopsy
reports are still pending. It is allegedly reported that CLAW facility officials directed the
driver to take his wastes to the truck ramp and discharge them at the edge of an open pit.
Discharging toxic waste into an open pit is not a safe, desirable, or acceptable practice since
toxic chemical reactions are very probable and can result in the death of anyone nearby.
Section 308 of the Federal Waste Pollution Control Act (33 U.S.C 1318) and Section 3007 of
the Resource Conservation and Recovery Act (42 U.S.C 6927), providing for entry, inspection,
record review and copying, and sampling, are reasonable, in the public interest, and necessary in
order to carry out the provisions of these Acts, which Acts are designed to protect the
environment, as well as the public health and welfare. In the instant matter, it is reasonable
to assume the need for inspection based on the information and observations set out in
paragraph 4 above and in the public interest
Mister Inspector
Chemical Engineer
Permitting Authority
Subscribed and sworn to before me
in Oxford County State of New Hampshire
this of , 19 .
U.S. Magistrate
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IN THE MATTER OF
STOMP CORPORATION
SAMPLE WARRANT
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF OREGON
NO.
WARRANT OF ENTRY, INSPECTION
AND MONITORING PURSUANT TO
33 U.S.G §1318
TO: THE UNITED STATES OF AMERICA, UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, THROUGH ITS DULY DESIGNATED REPRESENTATIVE OR
REPRESENTATIVES, THE UNITED STATES MARSHAL OR ANY OTHER FEDERAL
OFFICER
An application having been made by the United States of America, United States Environmental
Protection Agency, for a warrant of entry, inspection, and monitoring pursuant to 33 U.S.C 1318, as pan
of an inspection program designed to assure compliance with the Federal Water Pollution Control Act
(commonly referred to as the Clean Water Act), 33 U.S.C 1251, etseq.. and an affidavit having been
made before me by Mister Inspector, a duly authorized employee of the United Sates Environmental
Protection Agency, that he has reason to believe that on the premises hereinafter described there exists a
danger to the public's health, welfare, and safety and to the property, rivers and environment of the
United States, and that in order to determine whether the Clean Water Act and the rules, regulations,
and orders issued pursuant to the Act have been or are being violated, an entry on, and inspection and
monitoring of the said described property is required and necessary, and, the Court being satisfied that
there has been a sufficient showing that reasonable legislative or administrative standards for conducting
an inspection and investigation have been satisfied with respect to the said described property and that
probable cause exist to issue a warrant for the entry, inspection, investigation and monitoring of the said
described premises:
IT IS HEREBY ORDERED AND COMMANDED that the United States of America, United
States Environmental Protection Agency, through its duly designated representative or representatives,
the United States Marshal, or any other federal officer are hereby entitled to and shall be authorized
and permitted to have entry upon the following described property which is located in the Middle
District of Oregon.
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Those premises known as the Stomp Corporation, or which are owned
or operated by any other person or company/corporation or partnership,
which premises and property are more particularly and farther described
as follows:
From the intersection of State Highway 75 and Highway 3068, proceed
South for approximately 7 miles; turn right and travel across the
Pilgrim's Progress Bridge, a distance of approximately 0.2 miles; turn
right, proceed northwest on Route 2, the Lower Valley Road, for
approximately 1.6 miles at which point the pavement ends; at this point
turn right, travel approximately 0.1 miles to the entrace of Stomp
Corporation, all as is shown on the attached photos identified as
Government Exhibits 1 and 2.
IT IS FURTHER ORDERED that the entry, inspection, investigation and monitoring authorized
herein shall be conducted during regular working hours or at other reasonable times, within reasonable
limits and in a reasonable manner from 6:00 a.m. to 10:00 p.m.
IT IS FURTHER ORDERED that the warrant issued herein shall be for the purpose of
conducting an entry, inspection, investigation, and monitoring pursuant to 33 U.S.C 1318 consisting of
the following:
Entry to, upon; or through the above described premises, including all buildings, structures,
equipment, machines, devices, materials, and sites to inspect, sample, photograph, monitor, or
investigate the said premises
Access to, seizure of, and copying of all records pertaining to or related to the operation of the
facility, equipment, and waste materials which are accepted and stored on the premises under
33 U.S.C 1318(a)(A), including any rules and regulations and orders promulgated thereto
Inspection, including photographing, of any monitoring equipment or methods required by 33
U.S.C 1318(a)(A)
Inspection, including photographing, of any equipment, processes or methods used in sampling,
monitoring, or characterizing waste
Inspection, including photographing, of any equipment or methods used to dispose of or store
waste substances
Sample and seize any pollutants, effluents, runoff, soil, or other materials or substances which
may reasonably be expected to pollute the waters of the United States under various conditions
or threaten the public health, safety, or welfare of the people of the United States
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Seize, inspect, sample, and photograph any evidence which constitutes or relates to or is part of
a violation
Take such photographs of the above authorized procedures as may be required or necessary.
IT IS FURTHER ORDERED that a copy of this warrant shall be left at the premises at the time
of the inspection.
IT IS FURTHER ORDERED that if any property is seized, the officer conducting the search and
seizure shall leave a receipt for the property taken and prepare a written inventory of the property
seized and return this warrant with the written inventory before me within 10 days from the date of this
warrant
IT IS FURTHER ORDERED that the warrant authorized herein shall be valid for a period of 10
days from the data of this warrant
IT IS FURTHER ORDERED that the United States Marshal is hereby authorized and directed to
assist the representatives of the United States Environmental Protection Agency in such manner as may
be reasonably necessary and required to execute this warrant and the provisions contained herein,
including but not limited to, gaining entry upon the premises; the inspection and monitoring thereof; the
seizure and sampling of materials, documents, or equipment; and the photographing of the premises, and
the materials or equipment thereon.
DATED this
day of
United States Magistrate
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APPENDIX F
REVIEW QUESTIONS AND ANSWERS
ON LEGAL ISSUES
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REVIEW QUESTIONS ON LEGAL ISSUES
1. The five sources of legal authority are:
5.
6.
7.
8.
9.
10.
What legislation established the NPDES permit program?
3. What section of the Act identified above provides authority for compliance monitoring?
4. What is the cite(s) for standard conditions regarding self-monitoring?
What is the cite for standard conditions regarding a permittee's duty to allow access for the
purpose of compliance inspections?
An inspector's
are his/her proof of authority to enter and inspect a facility.
Having conducted previous inspections at a particular facility, an inspector need not present his
credentials at subsequent site visits. True _____ False
EPA inspectors may visit a facility which has not been issued a permit
True False
Routine compliance inspections must be targeted pursuant to a .
The five sources of evidence regarding specific violations include:
11. Criteria for targeting routine compliance inspections includes time since last inspection, geography,
and citizen complaints. True False ______
12. Inspection of facilities in litigation with EPA is prohibited.
True False
13. Advance notice that an inspection is forthcoming is commonly referred to as a
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14. All facilities have a right to claim information collected during an inspection as confidential. True
False
15. Claims of confidentiality must be asserted at the time of the inspection or they will be considered
waived by the permittee. True False
16. The procedures for handling claims of confidentiality are set out in .
17. Inspectors should sign confidentiality or secrecy agreements if entry will be otherwise denied by
the facility. True False
18. Unauthorized disclosure of confidential information is a criminal offense.
True False
19. The type of sampling which the inspector may undertake at the facility is determined by the terms
and conditions of the permit True False
20. Generally, inspections must occur during a facility's business hours. True
False
21. If the facility refuses entry to an inspector, it becomes subject to civil penalties for violating its
permit True False
22. What circumstances justify the use of trickery or coercion in obtaining consent for entry?
23. Once consent is given, it cannot be withdrawn and an inspector does not have to halt an
inspection. True False
24. The three grounds for obtaining a search warrant are:
25. In order to obtain a search warrant, an
the warrant, will have to be signed.
_, indicating the grounds for issuance of
26. Warrants may only be sought within 3 days of being denied entry.
True False
27. A criminal conviction requires the permitting authority to demonstrate evidence which is
28. Chain-of-custody procedures need only be followed when the inspection is part of a criminal
investigation. True False
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29. Logbooks can be used to refresh the inspector's memory in the event tie or she is called upon to
be a witness in an enforcement action. True False
30. If the inspector believes he/she has made an error in testifying, the error should be announced or
corrected as soon as possible. True False
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1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
ANSWERS TO REVIEW QUESTIONS
ON LEGAL ISSUES
U.S. Constitution
Legislative acts
Common law
Regulations
Court decisions interpreting first four
FPCA Amendments of 1972
Section 308(a)
40 CFR 122.41(j)
40 CFR 122.41(i)
Credentials
False
True
Neutral Inspection Plan
DMRs
Citizen complaints
Observations during emergency situations
Follow-up to previous inspections
Specific inspections for enforcement support
11. False
12. False
13. Scheduled inspection
14. True
15. False
16. 40 CFR Part 2
17. False
18. True
19. True (for enforcement purposes)
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20. True
21. False
22. Trickery and coercion are never justified
23. False
24. Criminal probable cause
Civil probable cause
Administrative probable cause
25. Affidavit
26. False
27. Beyond a reasonable doubt
28. False
29. True
30. True
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