United States
Environmental Protection
                Office of Water Enforcement
                and Permits
                Washington. DC 20460
September 1989
Guidance for Developing
Control Authority
Enforcement Response Plans
                                     •^ Printed OP Recycled Paper

                            WASHINGTON. D.C. 20460
                                                           OFFICE OF
To All Approved Pretreatment Programs:

     One of the most important requirements of pretreatment
program implementation for Publicly Owned Treatment Works (POTKs)
is an effective enforcement program to deal with Industrial User
(IU) noncompliance.  EPA expects POTWs to identify all
violations, to respond with appropriate action and to follow up
those violations with escalated levels of enforcement, if needed
to ensure compliance.  In January 1990 EPA expects to promulgate
amendments to the General Pretreatment Regulations requiring all
POTWs with approved pretreatment programs to develop enforcement
response plans describing how the POTW will investigate and
respond to instances of noncompliance.

     In response to this coming requirement, the Office of Water
Enforcement and Permits has developed the attached "Guidance for
Developing Control Authority Enforcement Response Plans".  This
Guidance is intended to provide municipal pretreatment personnel
with recommendations for assessing enforcement authorities,
determining appropriate enforcement roles for personnel and
deciding upon enforcement remedies for specific violations.  To
assist Control Authorities in meeting the changes to the General
Pretreatment Regulations, the manual includes a model enforcement
response guide and a detailed analysis of each of the common
enforcement remedies.

     If you have any questions or comments concerning the
development of your own Enforcement Response Plans, please
contact your Approval Authority or the Pretreatment Coordinator
in your USEPA Regional Office.

                                   James R. Elder, Director
                                   Office of Water Enforcement
                                     and Permits

          GUIDANCE FOR
           September 1989
 Office of Water Enforcement and Permits
  U.S. Environmental Protection Agency
          401  M Street, SW
        Washington, DC 20460

This document has been reviewed by the Office of Water Enforcement and
Permits. U.S. Environmental Protection Agency, and approved for
publication.  The mention of any trade names or commercial products
constitutes neither an Agency endorsement nor a recommendation for use.
This document represents  Agency guidance only and a failure on the  part
of any municipal official or agent to comply with its contents shall not
serve as a defense in any enforcement action brought against an
industrial user.

CONTENTS                                                                   PAGE

DISCLAIMER                                                                 ii

1.   INTRODUCTION                                                         1-1

     1.1   PURPOSE OF THIS MANUAL                                          1 -1
     1.2   ELEMENTS OF AN ENFORCEMENT RESPONSE PLAN                    1 -1
     1 3   BENEFITS OF AN  ENFORCEMENT RESPONSE PLAN                     1 -2
     1.4   ORGANIZATION OF THE MANUAL                                    1-3

2.   DEVELOPING AN  ENFORCEMENT RESPONSE PLAN                          21

     2.1   IDENTIFYING APPROPRIATE PERSONNEL                              2-1
     22   REVIEWING THE INDUSTRIAL USER INVENTORY                       2-2
          PROCEDURES                                                       2-3
     2.4   CREATING PROCEDURES TO SCREEN DATA                            2-3

3.   EVALUATING THE SEWER USE ORDINANCE                                 3-1

     3.1   NATURE  AND PURPOSE OF A SEWER USE ORDINANCE                  3-1

          3.2.1   Authority Over All Industrial Users                                 3-2
          3.2.2   Implementation of Federal Program Requirements                     3-2
          3.2.3   Enforcement Authority Under State Law                             3-3
          3.2.4   Identifying Obstacles to Enforcement                                3-3


          3.3.1   Administrative Enforcement Remedies                               3-7
          3.3.2   ludicial Remedies                                              3-9
          3.3.3   Supplemental Enforcement Remedies                                3-10
          3.3.4   Affirmative Defenses                                            3-11

4.   DEVELOPING AN ENFORCEMENT RESPONSE GUIDE                         4-1


          4.1.1   Magnitude of the Violation                                        4-2
          4.1.2   Duration of the Violation                                         4-3
          4.1.3   Effect on the Receiving Water                                     4-3
          4.1.4   Effect on the POTW                                           4-3
          4.1.5   Compliance History of the User                                   4-4
          4.1.6   Good  Faith of the User                                          4-4

                   CONTENTS (Continued)
CONTENTS                                                   PAGE
4.2.1 Inspectors/Field Personnel
4.2.2 Pretreatment Coordinator 'Industrial Waste Manager
423 POTW Director/Superintendent
4.2.4 Control Authority Attorney
441 Using the Model Enforcement Response Guide
442 Description of Terms
4.4.3 Model Enforcement Response Guide
5.1.1 Legal Authoritv Necessary to Issue NOVs
5.1.2 When to Issue NOVs
5.1.3 How to Issue NOVs
5. 1 .4 Recommendations for NOV Issuance
5.2.1 Legal Authoritv Necessarv to Assess Administrative Fines
5.2.2 When to Assess Administrative Fines
5.2.3 How to Assess Administrative Fines
5.3.1 Legal Authority Necessary to Issue Administrative Orders
5.3.2 Common Elements of Administrative Orders
5.3.3 Types of Administrative Orders



5. a
5-2 1

                            CONTENTS  (Continued)

 CONTENTS                                                                           PAGE

      5.4  CIVIL LITIGATION                                                        5-4.1

           5.4.1   Legal Authority Necessary to Use Civil Litigation                        5-4.1
           5.4.2   When to Pursue Civil Litigation                                       5-4.2
           5.4.3   How to  Pursue Civil Litigation                                        5-4.5

      5.5  CRIMINAL PROSECUTION                                                 5-5.1

           5.5.1   Legal Authority  Necessary to Use Criminal Prosecution                   5-52
           5.5.2   When to Use Criminal Prosecution                                     5-5.4
           5.5.3   How to  Use Criminal Prosecution                                      5-5.5
           5.5.4   Advantages and Disadvantages of Criminal Prosecution                    5-5.8

      5.6  TERMINATION OF  SEWER SERVICE                                       5-6.1

           5.6.1   Legal Authority  Necessary to Terminate Service                         5-6.1
           5.6.2   When to Terminate Service                                           5-6.2
           5.6.3   How to Terminate Service                                            5-6.3

      5.7  SUPPLEMENTAL ENFORCEMENT RESPONSES                             5-7.1

           5.7.1   Legal Authority  Necessary for Supplemental Enforcement
                   Responses                                                          5-7.1
           5.7.2   Supplemental Enforcement Responses for Which Specific
                   Legal Authorih, is Necessary                                          5-7.1
           5.7.3   Supplemental Enforcemrnt Responses for Which Specific
                   Legal Authority is Not Necessary                                      5-7.5

















IS NECESSARY                                                  5-73

























                                1.  INTRODUCTION

       This manual provides guidance to Control Authority personnel in developing an enforce-
 ment response plan to remedy  violations of a local pretreatment program.  An enforcement
 response plan outlines, in a step-by-step fashion, the procedures to be followed by Control
 Authority staff to identify, document, and  respond to pretreatment violations   Once
 adopted, the plan provides guidance  in selecting initial and follow-up enforcement actions.
 indicates staff responsibilities for these actions, and  specifies appropriate time frames  in
 which to take them.

       Although all violations of its pretreatment program should be met with some type of
 enforcement response, the Control Authority may be unclear about exactly how to respond.
 For example, should the Control Authority issue a Notice of Violation, assess an adminis-
 trative fine, or seek a judicial remedy,  (e.g . civil penalty),  for the noncompliance?

       To ensure that POTWs develop and implement specific  enforcement procedures, the U.S.
 Environmental Protection Agency (EPA) has proposed,  on November 23. 1988 (53 Fed  Reg
 47632). to amend the General  Pretreatment  Regulations to require all POTWs with approved
 pretreatment programs to develop and implement enforcement  response plans.  An enforcement
 response plan specifies criteria  by which POTW personnel  can determine the enforcement
 action  most appropriate to the nature of the violation

      The purpose of this guidance manual  is to help the Control Authority use its own
 enforcement expertise to develop a flexible and appropriate enforcement response plan
 tailored to its particular situation.


      A comprehensive and effective enforcement response plan must:

      •  Describe how the POTW will investigate instances of noncompliance

      •  Describe the types of escalated enforcement actions that the POTW will take in
         response to all anticipated types of industrial user  violations and the time periods
         within  which to initiate and follow up these actions

      •  Adequately reflect the POTW's primary responsibility to enforce all applicable
         pretreatment standards and requirements.

In addition, the plan should also contain:

      •  Criteria for scheduling periodic inspection  and/or  sampling visits to industrial
         users.  EPA recommends that the date and location for routine inspections be
         established four to six months in advance

     •  Forms  and guidelines for documenting compliance data  in a manner which  will enable
         the information to be  used  as evidence in administrative and judicial enforcement

       •  Systems to track due dates for self-monitoring reports, compliance schedule mile-
          stones, compliance status generally and pending enforcement actions (e.g . dates for
          show cause hearings or permil suspension/revocation proceeding?).

       •  Criteria, responsible personnel and procedures to select  and initiate an enforcement
          response from among those  provided in the plan
 Each of these elements is discussed in detail in the following chapters.


       Adoption of the enforcement response plan will alleviate many difficulties which
 Control Authorities frequently experience in enforcing pretreatment programs.  First,  the
 Control Authority's  internal management is strengthened by improving task coordination among
 staff.  The enforcement response plan should clearly establish the enforcement responsibili-
 ties of each person involved in the pretreatment program:  the pretreatment coordinator.
 laboratory  personnel, sampling crews, attorney, and any other staff affected.  Once each
 person involved is assigned responsibility for an enforcement task, they should be fully
 informed about their role.  For example, each staff person should read the enforcement
 response plan in order to clearly  understand  the importance of his/her tasks.  In this way.
 POTW personnel will be capable of performing these responsibilities decisively when
 enforcement actions are necessary.

      A second benefit is the enhancement of the Control Authority's reputation as a
 responsible public agency.  Adherence to the plan makes the POTW less likely to react
 inconsistently to similar instances of noncompliance or to  arbitrarily select enforcement
 measures   Because the Control Authority is  following documented enforcement procedures.
 industries will  not view the Authority's enforcement actions  as subjective or unreasonable.
 rather, the regulated community will  understand that certain types of violations always
 bring particular enforcement responses.  Thus, by adopting  an enforcement response plan and
 by consistently observing its provisions, the Control Authority alerts its industrial users
 to the consequences  of noncompliance.  To further educate the regulated community about the
 plan, the Control Authority may send its major provisions to industries by letter or hold
 meetings with industry representatives to discuss the implications of the plan for
 pretreatment enforcement.

      Finally,  the plan provides an opportunity to  involve  other public  service and
 regulatory  agencies in the pretreatment program.  For example, the local police department
 is an excellent  source of expertise about proper procedures for gathering evidence of
 violations,  devising methods to assess fines, and preparing cases for civil litigation and
 criminal prosecution.  Many Control  Authorities have police officers trained to recognize
 pretreatment violations (e.g.. evidence of illegal discharges to manholes) and have found
 their assistance to be invaluable in conducting criminal investigations.  The enforcement
 response plan may also help promote  an  information network with these other agencies.  For
example, area hospitals may be requested to report injuries caused by industrial accidents
to the Control Authority (prompting investigations to determine whether spills or illegal
discharges  may have also occurred).  Similarly, area fire departments,  labor boards, fish
and wildlife agencies, and building inspectors may also be consulted for any information
related to possible discharge violations.  This data exchange  will enable information about
problems of mutual concern to be pooled.


      The remainder of the manual is organized into five chapters  Chapter 2. "Developing an
 Enforcement Response Plan."  discusses activities that the Control Authority should perform
 as it develops the enforcement  response plan.  Chapter 3. "Evaluating the Sewer Use
 Ordinance." outlines considerations in  reviewing the POTW s sewer use ordinance, including
 the adequacy and effectiveness  of available enforcement  mechanisms and procedures.  This
 Chapter also contains model language for the  enforcement section of a local ordinance.
 Chapter 4. "Developing an Enforcement Response Guide." describes how to put together a
 matrix which establishes a narrow range of enforcement responses and time frames for
 enforcement actions  and follow up.  Chapter 4 also contains a model enforcement guide.
 Finally. Chapter 5. "Basic Enforcement Responses." provides detailed descriptions of the
 following basic enforcement responses commonly used by Control Authorities:

          Notice of Violation
          Administrative Fines
          Administrative Orders
          Civil  Litigation
          Criminal Prosecution
          Termination of Industrial User Service
          Supplemental Enforcement  Responses.
Each of these responses is described in a separate subsection of Chapter 5.  The descrip-
tions include the advantages and disadvantages of each response and the most appropriate
circumstances in which the response ma\  be used. Examples of administrative enforcement
documents, such as notices and orders arc also presented to assist Control Authorities and
their legal counsel  in drafting similar documents.

                CHAPTER  2

             RESPONSE PLAN
    Evaluate Legal
 Response Guide
 Accessibility to
Legal Professionals
Obtain Political
                   RESPONSE PLAN
Document All
                 Screen Compliance
                Compliance Inspection
                  Sampling Visits
Maintain User


       There are five basic tasks which should be undertaken when developing an enforcement
 response plan:

          Identify appropriate personnel to draft the plan
          Review the industrial user inventory
          Establish  or review compliance monitoring procedures
          Create procedures to screen compliance monitoring data
          Evaluate the sewer use ordinance.

 These steps will generate relevant background information and expedite formulation of the
 plan.  The following sections describe how the POTW  can accomplish the first four steps.
 Because of the complexities of evaluating the sewer use ordinance, it is discussed
 separately in Chapter 3.


       Developing the plan should not be delegated to a single individual  Rather,  a team of
 qualified and experienced personnel familiar with local  water pollution enforcement policies
 should work together to draft the plan.  This approach  allows the Control Authority to
 profit from the team's knowledge and ensures that the plan reflects a broad range of
 viewpoints.  One individual may. however, be responsible for coordinating the development of
 all aspects of the plan.

       If the Control Authority is  a Regional Sewer Authority with the power  to revise its
 sewer  use ordinance, an enforcement  response plan may be developed using  in-house staff
 (principally  the pretreatment or toxics coordinator), a senior  inspector, and the Control
 Authority attorney.  The attorney's involvement is particularly important because of his'her
 drafting skills and knowledge of procedures for obtaining entry warrants and  for formulating
 enforcement measures appropriate to significant violations, such a? civil litigation and
 criminal prosecution. Once involved  in  the plan's development, the attorney  will also serve
 as a strong advocate of the plan's merit to other interested parties.

      If the Control Authority is  an agency of a municipal government, it should invite other
 interested municipal  officials to assist  in  drafting the enforcement response plan. For
 example, the Control Authority may create a task force  comprised  of representatives from the
 mayor's office, city council, health department, planning board, police and fire
 departments, water authority, and other concerned  offices. Comments from these officials
 should be sought on early drafts.  This approach will promote the  consensus  and support
 necessary to officially adopt the plan.  Since final decisions to bring enforcement actions
 against industries frequently rest with  elected officials (especially those enforcement
 actions which  involve judicial proceedings), mayors or city managers  (or their
 representatives) should be asked to chair the task force.   Participation of elected
 officials demonstrates the importance of pretreatment enforcement and facilitates the
 cooperation  of other  local officials.  Alternatively, the task force might be directed by
 the Director of Public Works, the POTW Superintendent, or other officials of equivalent

      As the task force completes various elements of the enforcement response plan,  drafts
 should be circulated  to key members for comment. To consider all perspectives, the task
 force may also wish  to request comments on the draft plan from industry representatives and
citizens groups.  The entire document(s) should eventually be brought before  a meeting of
the full group  for discussion.

      Once consensus is  reached on the plan, procedures for its adoption should be set  in
 motion.  Formal approval or concurrence should be obtained from representative officials of
 each municipal department.  If the  mayor or city council members are on the committee (or
 represented on the committee), it is particularly  important that they approve the plan   A
 copy of the enforcement response plan must be forwarded to the Approval Authority for  review
 and to allow for its incorporation in the Control  Authority's approved pretreatment  program
 Note that when a plan involves ordinance revisions, a decrease  in POTW compliance monitoring
 frequencies or other significant changes in program operations, it will be considered to be
 a "substantial" program modification and must be subjected to public notice and comment
 The Control Authority may wish to publicly announce completion of the plan and/or publish it
 in order to place the regulated community on notice of its existence.  For example, several
 Control Authorities have already chosen to mail  a copy of the plan to all of their
 industrial users.

      At the time of program approval, each Control Authority conducted an industrial waste
survey to identify its industrial users and to  determine the wastewater constituents
discharged by those users into its sewer systems.  However, the Control Authority musi
regularly update this information.  In small  town?, it may be relatively easy to determine
when a new industrial  user discharges to the POTW or when an existing industrial user
expands or reduces its  operations or relocates.  However,  informal updating methods will
seldom be appropriate  for Control Authorities serving large cities or regional (multiple
jurisdiction) areas.

      The General Pretreatment Regulations require the Control Authority to  provide its
Approval Authority with an updated list of industrial users annually, including an
indication of whether these industries are regulated by categorical standards, local limits.
or both.   Although this reporting requirement is imposed on an annual basis, the Control
Authority should systematically update its inventory  more frequently (for example, every two
to six months, depending on the number of  users it  has).  The enforcement response plan
should identify  which staff are responsible for keeping the inventory accurate and should
explain the procedures  used to accomplish this task.

      Many Control Authorities frequently rely on other municipal or State offices for
assistance with  "user tracking."  For example, offices that issue business licenses.
building permits, and water service  will typically agree to forward the  names and addresses
of all new commercial  and industrial applicants or accounts to the Control Authority. At
least one Control Authority has obtained an  agreement with a local lending institution to
inform the pretreatment office of business loan applicants. Another Control Authority has
made similar arrangements with its  local Chamber of Commerce.

      Control Authorities have also used the following in-house techniques to  keep the  user
inventory up-to-date:

      •  Periodic review of area phone books, manufacturer's listings, and commercial indices

      •  Inspections of commercial areas (e.g.. industrial parks) to identify new tenants

      •  Periodic (e.g.. every three to five  years) industrial user survey questionnaires to
         ensure that industries previously identified as having dry processes remain dry and
         to learn of any new process lines added by an  industry.
   The Control Authority should review its NPDES permit to determine whether more frequent
   reporting is required.

       Several Regional Sewage Authorities have delegated responsibility for updating the user
 Inventory to member (or contributing) jurisdictions.  Under this scenario,  the contributing
 jurisdiction identifies new industries and Control Authority  personnel follow up to
 determine if the facility is a significant industrial user.  Control Authorities are
 encouraged to use as many sources of industrial user information as are available.


       The Control Authority's compliance monitoring activities must detect and document
 violations in a manner that ensures that the results are admissible as evidence in judicial
 proceedings. Compliance data are collected  in two ways: (I) self-monitoring by industrial
 users, with findings  reported to the Control Authority: and  (2)  inspections  and direct
 sampling by the Control Authority itself. Regardless of the frequency of self-monitoring.
 the Federal pretreatment regulations require the Control  Authority to have  legal authority
 to conduct its own compliance evaluations to verify the accuracy of the user's
 self-monitoring data.  For more information on establishing self monitoring requirements.
 see Section 8.4 of the Industrial User Permitting Guidance  (1989).  For recommendations and
 guidance on scheduling inspecting and sampling activities and documenting site visits in a
 manner  which preserves these findings as evidence, see the Pretreatment Compliance
 Monitoring and  Enforcement (PCME) Guidance (July 1986).   The  PCME  Guidance document also
 suggests ways for the Control Authority  to document compliance activities in order to
 facilitate completion of the POTW's own reporting requirements.


      Few Control Authorities have difficulty in collecting industry self-monitoring and
 Control Authority monitoring data.  However,  many local program  deficiencies are linked to a
 basic failure to carefully examine this data to accurately determine the compliance status
 of each significant user.  The Control Authority should develop procedures which ensure that
 all compliance data, whether generated through self-monitoring reports or by Control
 Authority field personnel, are screened (i.e.. systematically  analyzed) to identify
 violations.  This process must identify -all violations, including  nondischarge violations.
 While discharge violations are of obvious concern, other types  of noncompliance. such as a
 failure to submit reports are equally important  since such action may be motivated by an
 industry's desire to conceal violations.  At a  minimum, they suggest that the industrial
 user may not be taking its pretreatment obligations seriously.

      The enforcement  response plan should clearly designate  responsibilities for this
 screening task.   A number of Control Authorities have assigned the task to field personnel
 (inspectors) because of their familiarity with  the facility.  Others have placed the
 responsibility in  the hand of the pretreatment coordinator or used clerical staff for the
job.   Each of these approaches are appropriate if the reviewer is trained to  spot non-
 compliance and to alert enforcement personnel of the possible need  for action

      Timing is  an important element to be considered when developing screening procedures.
 The Control Authority may choose to review this information on a "rolling" (as-received)
 basis  or  may set  aside a specific period to review recently acquired data.  To facilitate
 such a system, the due dates for industrial user reporting  should be staggered   In order to
initiate an enforcement action in a timely manner, the data should be screened as soon after
 its receipt as possible.  Based on its own experience. EPA recommends  that data be screened
no later than five working days after receiving the information

      First, the Control Authority should have procedures to track when reporting
requirements are due and to take enforcement action if reports are not submitted on time
Second, all analytical data, whether collected by  the Control Authority or submitted by the
industrial  user, should be screened by comparing it to categorical and local limits and to
any additional prohibited discharge standards which may apply.  If a violation is detected
through the screening process, the Control Authority should highlight it and document it in
the industrial user's Tile.  This may be accomplished by circling the violation,  using a
highlight marker, listing it in a log kept inside the file, or entering the information on
an automated data system, such as the PCME software.   All violations  should be identified
and a record made of the response, even where the decision is made to take  "no action."  In
addition to recording the violation, the person responsible for screening the data must
alert enforcement personnel to the noncompliance.  This notification  is necessary to allow
the Control Authority to determine its enforcement response in a timely  manner.
   EPA has developed a software package which tracks industrial user violations and
   identifies (hose in  significant noncompliance.  It is available by contacting the
   Enforcement Division (EN-338). Office of Water Enforcement and Permits. U.S.
   Environmental  Protection Agencv. 401 M Street. SW. Washington. DC  20460

       CHAPTER 3



       The Control Authority's ability to take effective enforcement action is largely
 determined by its legal authority.  Regardless of whether the Control Authority is a
 municipal POTW or a Regional Sewerage Authority, its legal authority derives from State law.
 Thus, the Control Authority must always work within the limitations of State law  in
 developing an enforcement response plan that will withstand  legal challenge.

       Most Control  Authorities have broad regulatory powers.  For example, many State laws
 authorize Control Authorities to enforce " pretreatment requirements" against users
 discharging wastes to their sewer systems.  This broad legal  authority allows the local
 pretreatment program to be tailored to the individual  circumstances of each Control
 Authority while,  at the same time, satisfying minimum Federal program requirements.  If the
 Control Authority is a municipality, the basic implementation and enforcement  requirements
 of its pretreatmcnt program are detailed in its sewer use ordinance. Typically,  this
 ordinance is part of  a city or county code   Regional  POTWs frequently adopt similar
 provisions in the form of regulations.  Likewise. State agencies  implementing a State-wide
 program under 40 CFR 403.lO(e) set out pretreatment requirements as agency  regulations.
 rather than a sewer  use ordinance.

      The sewer use ordinance and regulations "implement" the legal  authority which State law
 confers on the Control Authority.  However, the ordinance cannot give the Control Authority
 greater enforcement  powers (such as higher penalty  authority) than are allow-ed under State
 laws which  created or empowered the Control Authority.  If an industry asserts that the
 Control Authority has acted beyond its powers  under State law or contrary to its ordinance.
 it could successfully  challenge the enforcement action in court  Therefore, the Control
 Authority  must also  implement its legal authority with clear and  precise ordinance language
 to ensure  that a reviewing court upholds an enforcement action brought under the ordinance
 In the absence of such clear language, the court may interpret the ordinance in ways which
 restrict the Control Authority's enforcement discretion.  For example, an ordinance
 provision  which authorizes Control Authority officials to "inspect" the facilities  of an
 industrial  user may  not be construed to authorize photocopying of industry self-monitoring
 records.   Thus, the Control Authority should ensure  that its legal authority is both
 comprehensive and specific.

      This Chapter  provides guidance on evaluating the sewer use ordinance.  This evaluation
 should be performed prior to finalizing the enforcement response plan so that the  ordinance:
 (I) provides authority to impose pretreatment standards and requirements on  industrial
 users; (2) provides the Control Authority with a  sufficient range of enforcement responses;
 and (3) does not create obstacles to effective enforcement.  To meet these goals, the
 Control Authority's attorney should be actively  involved in the evaluation process.   The
 attorney should also  coordinate this review with  the pretreatment coordinator and consult
 other pretreatment personnel to ensure that revisions include all  applicable Federal. State.
 and local  requirements and provide for the broadest possible range of enforcement remedies
 allowed under State  law.

      After completing the  ordinance review, the Control Authority will know which provisions
to strengthen in order to support an effective enforcement program  Section 3.3 provides
example ordinance provisions which the Control Authority should consider in revising its
authority.  As noted  previously, any change to the Control Authority s ordinance is con-
sidered a "substantial modification"  to its pretreatment program and must be submitted to
the Approval Authority for approval.


       The Control Authority should use the following four fundamental questions as a basis
 for conducting its ordinance review:

       1.  Are all industrial users discharging to the POTW subject to regulation0

       2.  Docs the ordinance authorize the Control Authority to implement and enforce program
          requirements  under 40 CFR 403.8. including local limits to prevent pass through and

       3.  Does the ordinance incorporate all enforcement authorities allowable under State

       4.  Docs the ordinance contain  anv obstacles to effective enforcement?
Each of these questions is discussed in the following subsections.

3.2.1  Authority  Over All Industrial Users

      The sewer  use ordinance must apply  to all nondomestic (industrial) users of the POTW.
Thus, the "Scope" or "Applicability" section of the ordinance should specify that all users
are subject to regulation.  If the ordinance lacks an "Applicability" section, its
definitions of "person" and "user" must describe all dischargers  For example, many
ordinance definitions of these terms fail to include "government facilities' (that is.
Federal.  State, or local government entities  or their agents) as part of the regulated
community. Since such governmental entities are subject to Federal pretreatment regulations.
thes must not escape regulation through vaguely worded definitions of "person" or  "user."
If the ordinance contains similar omissions  or does not explicitly regulate all industrial
dischargers, the Control Authority  must revise  it.

      Many Control  Authorities receive and treat wastewater from industries located outside
their political boundaries.  Since these industries are not subject to the Control
Authority's sewer use ordinance, such "multijurisdictiona!" situations require special
legal contractual mechanisms to ensure that the Control Authority has the necessary legal
authority.  At a minimum, the Control Authority  should negotiate an agreement with the
neighboring jurisdiction which clearly establishes responsibility for permitting, compliance
monitoring, and enforcement activity in the  neighboring jurisdiction.

3.2.2 Implementation of Federal Program Requirements

      The General Prerreatment Regulations establish a number of minimum Federal requirements
for industrial users.  The Control Authority must examine its ordinance to determine whether
these Federal requirements are satisfied since it has primary  responsibility for
implementing and enforcing  pretreatment  requirements.  However, the Control Authority will
not be able to fulfill this obligation  unless its ordinance includes provisions which
incorporate these Federal requirements as local ones.  Federal requirements may be made
local requirements by incorporating them  into the ordinance verbatim or by  reference.  While
both techniques are legally enforceable. EPA recommends that incorporation by reference be
used (where allowed by State  law) because it is much less  burdensome administratively.

      Normally, if an ordinance provides a  specific citation to the Federal law being
incorporated, the incorporation is valid   For example, to incorporate the national

 categorical standards, language similar to the following could be used:   "Industrial
 pretreatment permits shall minimally include applicable National Categorical Pretreatment
 Standards for new and existing sources set out in 40 CFR. Subchapter N. Parts 401  through
 471."   However. State  law may contain additional content and format requirements  with which
 the Control Authority must comply.

       In addition to incorporating Federal law. the ordinance must also  clearly authorize
 enforcement of more stringent or supplemental  local standards and requirements (local
 limits) adopted to prevent pass through and interference.   Local limits become Federal
 pretreatment standards if properly adopted pursuant to 40 CFR 403.5. These limits may be
 either narrative discharge prohibitions or a set of pollutant-specific numeric limits. For
 more information on local limits development, see the Guidance Manual for the Development
 and Implementation  of Local Discharge Limitations (December 1987).

 3.2.3  Enforcement  Authority Under State Law

      The Control Authority must enforce pretreatment program requirements on  a strict
 liability basis.  Strict liability means that every instance of noncompliance (regardless of
 fault, negligence, or intent on the  part of the industrial user) is a violation of the sewer
 use ordinance and subjects the user to enforcement. However, while every instance of
 noncompliance may  be a violation, all violations will not be met with the same initial
 enforcement  response.  For example, a slug load which upsets the POTW should  not receive the
 same response as a report which is a week late.  Therefore, the Control  Authority should
 review its ordinance  to provide a range of administrative and judicial enforcement  options
 as necessary  to exercise case-by-case discretion  in  responding to violations.

      In assessing the enforcement authorities available to it. the Control Authority should
 first identify enforcement actions which its ordinance currently authorizes as well as an\
 constraints upon the  use  of these actions. To facilitate this identification, the Control
 Authority may find it helpful to complete a chart similar to the one provided in Table 3-1.
 As the Control Authority  identifies available enforcement actions (and constraints on their
 use), it can readily discern obstacles to their effective use.

 3.2.4  Identifying Obstacles To Enforcement

      The Control Authority must be confident  that enforcement responses are free from
 procedural obstacles  which could delay their use.  The Control Authority should scrutinize
 its sewer use ordinance to eliminate provisions which restrict the selection and use of
enforcement responses.   In reviewing sewer use  ordinances nationwide.  EPA  has identified
 many common procedural obstacles to enforcement.  One of the most common obstacles is
reserving authority to invoke an enforcement response to municipal officials outside of the
POTW.  For example,  ordinances  frequently vest enforcement authority  in the Mayor. City
Council, or the City  Engineer.  These officials may be unavailable or consider POTW matters
    The Control Authority should be aware that incorporation of future (as yet unpromulgated)
    Federal rules is usually considered invalid by reviewing courts.  Generally, only
    regulations  which are in existence on the date that the ordinance is adopted may be
    incorporated into the ordinance.  For instance,  an ordinance provision adopted in  1983.
    incorporating the Federal categorical pretreatment standards and requirements, will only
    effectively incorporate Federal regulations promulgated as of 1983.  Therefore, the
    Control Authority  must periodically reincorporate new or revised Federal regulations in
    order to ensure its own authority to impose and enforce these requirements.

                                    Authority   Penalty Limit   Constraints

 Notice of Violation                  Y/N

 Administrative Fines                 Y/N

 Administrative Orders                Y/N

 Civil Litigation                     Y/N

 Criminal Prosecution                 Y/N

 Termination of Service               Y/N

 Supplemental Enforcement Responses   Y/N


    Determine whether the listed enforcement responses are present in the
sever use ordinance and circle Y (for yes) or N (for no).   For responses
which involve monetary fines and penalties (i.e., administrative fines and
civil and criminal penalties), the Control Authority should enter these
amounts in Column Two.  If the ordinance provides a range of amounts, the
table should also reflect this information.  Finally,  any constraints on
the use of these responses should be noted in Column Three.  For example,
if Administrative Fines may be assessed only after a NOV has been issued,
this precondition should be noted.

 as low- priorities and this causes delay in initiating enforcement actions.  Enforcement
 should be vested in the POTW  Superintendent or his/her designee whene\er possible.  While
 other  senior city officials should be kept informed of enforcement activities, experience
 has  shown that enforcement is most expeditious if taken by officials who are familiar with
 the wastewater plant and  its pretreatment program.  In  turn, the Superintendent should
 delegate the  use of particular (e.g.. administrative) enforcement responses  as appropriate
 The final enforcement response plan should clarify which Control Authority personnel are
 authorized to take particular enforcement responses.

       Another common obstacle is narrowly defining the use of particular  enforcement
 responses.  For example, the ordinance should not require  issuance of a notice of violation
 (NOV) prior to initiation  of a more stringent response.   The Control Authority must have
 discretion to use whatever action it deems appropriate as an initial action   Similarly, a
 show' cause hearing should not be established as  a precondition to the issuance of an
 administrative order. The Control  Authority must be able to respond to emergency situations
 quickJy and be authorized to issue a cease and desist order or to seek an injunction without
 waiting to schedule a hearing for the industrial user. To address procedural due process
 concerns, the Control Authority may build in an  "appeals process" after the immediate danger
 has passed.

       Other  common obstacles include making the maximum duration of a compliance schedule so
 brief (for example, requiring full compliance to be achieved in not more than ten days) thai
 the schedule is an unrealistic mechanism for effecting remedial action.  In  addition, the
 ordinance should not specify an automatic grace period  between identification of the
 violation and the availability of an enforcement response (for example, provisions which
 read "where  the violation is not corrected within  15  davs of being notified  of the non-
 compliance by the POTW. the POTW may seek appropriate legal action"). Every violation by
 the industrial user should trigger immediate liability, and each day  that the violation(s)
 continues must count as a separate  instance of noncompliance.

       Occasionally, an ordinance restricts the Control Authority's access to information
 about the industrial user.  For  instance, provisions may limit the right of entry and
 inspection to the industry's pretreatment facility or monitoring  area  To  make a
 comprehensive determination of an  industry's compliance status. Control Authority  personnel
 need access to all areas of the facility, including areas where chemicals and raw material?
 are stored and records are kept. Therefore, the ordinance should authorize such broad

      Additional  examples of obstacles commonly encountered  include:

      •   Incorrectly designating analytical procedures to be conducted in accordance with
          Standard  Methods, rather than 40 CFR Part 136 or equivalent  methods approved by EPA.

      •   Authorizing special agreements that waive  ordinance  (pretreatment) requirements
          Such waivers should  not be available for Federal standards and requirements or any
          local limits or other requirements designed to protect the  POTW. its  sludge use and
          disposal,  and its receiving stream from  pass through  or interference
   Note that while violations of "daily average" pollutant limits are considered one
   violation, noncompliance with "monthly average"  pollutant limits are considered to
   represent all of the business days within that month  (i.e.. 20 violations).

      •   Failing to require significant industrial users to immediately report any
          noncompliance and resample for those parameters found to be in \iolaiion as required
          in 40CFR 403 I2(g)

      •   Failing to specify  authorized signatures for reports and applications submitted by
          industrial users.  This omission may allow someone without proper authority to act
          on behalf of the company to submit permit applications and reports.  The industry
          would then be allowed to disavow responsibility for violations or misrepresentations
          in these documents.

      •   Failing to require the use of the certification statement of 40 CFR 403.6(a)(2)(ii)
          for compliance reports by industrial users.

      •   Authorizing enforcement actions for "willful" and "negligent" violations only (all
          violations must be actionable: under Federal law. "know-ing"  and/or  "negligent"
          violations are criminal offenses).

      •   Excusing or absolving any noncompliance (eg., accidental spills) from enforcement
          or limiting the enforcement response to a  recovery of  actual damages
      The Control Authority should identify any obstacles to enforcement which it uncovers
while evaluating its ordinance.  It should then eliminate these obstacles  by revising or
deleting ordinance provisions.  The Control Authority may wish to consider the model
ordinance language in Section 3.3 to guide it in modifying its enforcement provisions.


       Readers are cautioned thai this Section only addresses the enforcement-related
 provisions of a sewer use ordinance.  It does not contain provisions for permitting,
 adopting pretreatment standards, and requirements or compliance monitoring language.  Since
 these provisions are not present, this Section must not be substituted for a municipality's
 entire existing ordinance and any provisions adopted by Control Authorities must be
 consistent with Slate law.
 3.3.1   Administrative  Enforcement Remedies  Notification of Violation

       Whenever the Superintendent finds that any industrial user has violated or is violating
 this Ordinance,  or a uvstewater permit or order issued hereundei,  the Superintendent or his
 agent may sen-e upon said user written notice of the violation   Within  10 da\s of the
 receipt dale of this notice, an explanation of the violation and a plan for the satisfactory
 correction and prevention thereof, to include specific required actions, shall be submitted
 to the Superintendent.  Submission of this plan in no MWV relieves the user of liability for
 any violations occurring before or after receipt of the Notice of Violation.   Consent Orders

       Tltc Superintendent is hercb\ empowered to enter into Consent Orders, assurances of
voluntary compliance, or other similar documents  establishing an agreement with the
industrial user responsible for the noncompliance.  Such orders will include specific action
to be taken b\ the industrial user to correct the noncompliance within a time period aha
specified b\ the order  Consent Orders shall ha\-e the same force and effect as adminis-
trative orders issued pursuant to Section below  Show  Cause Hearing

       The Superintendent may order arty industrial user which causes or contributes to vio-
lation of this Ordinance or wastewater permit or order issued hereunder, to show cause why a
proposed enforcement action should not be taken.  Notice shall be served on the user
specifying the time and place for the meeting, the proposed enforcement action and the
reasons for such action, and a request that the user show cause why this proposed enforce-
ment action  should not be taken.  The notice of the meeting shall be served personally or by
registered or certified mail (return receipt requested) at least 10 days prior to the
hearing. Such notice may be served on onv principal  e.\ecntive. general partner or corporate
officer. Whether or not a duly notified industrial user appears as noticed, immediate
enforcement action may be pursued.  Compliance Order

       When the Superintendent finds that an industrial user has violated or continues to
violate the ordinance or a permit or order issued thereunder, he may issue an order to the
industrial user responsible for the discharge directing  that, following a specified time
period, sewer sen-ice shall be discontinued unless adequate treatment facilities,  devices.
or other related appurtenances  ha\-e been installed and arc properl\ operated  Orders may
also contain such  other requirements as might be reasonably necessary and appropriate to


 address the noncompliaitce. including the installation of pretreannent technok>g\. additional
 self-monitoring, and management practices.  Cease and  Desist  Orders

-------  Termination of Permit

       Significant industrial users proposing to discharge into the POTW. must first obtain a
 \vaste water discharge permit from the Control Authority.  An\ user who violates the
 following conditions of this Ordinance or a wastewater discharge pennit or order,  or an\
 applicable or State and Federal /o»r, is subject to pennit termination:

       a)    Violation of permit conditions

       b)   Failure to accurately report the wastewater constituents and cltaracterisiics of its

       c)   Failure to report significant changes  in operations or wastewater constituents and

       d)   Refusal of reasonable access to the user's premises for the purpose of inspection,
            monitoring, or sampling.
 Noncomptiant industrial users will be notified of the proposed termination of their \\-atte
 water pennit and be offered an opponuntn to show cause under Section of this
 ordinance why the proposed action should not be taken
3.3.2  Judicial  Remedies

       lfan\- person discharges sewage, industrial wastes, or other wastes into the \\-astewatei
disposal system contrary to the provisions of this Ordinance or any order or permit issued
hereunder. the Superintendent, through the dry Ationie\. mcr\ commence an action for
appropriate legal and or equitable relief in the	Court for	
Connr\.   Injunctive Relief

       Whenever an industrial user has violated or continues to violate the provisions of this
Ordinance or permit or order issued hereunder. the Superintendent, through counsel may
petition the Conn for the issuance of a preliminary or permanent injunction or both (as may-
be appropriate) which  restrains or compels the activities on the pan of the industrial
user.   The Superintendent shall have such remedies  to collect these fees as it has to
collect other sewer service charges.   Civil Penalties

      a.  Any industrial user who has violated or continues to violate this Ordinance or any
order or pennit issued hereunder. shall be liable to the Superintendent for a civil penalty
of not more than  {maximum allowable under State law. e.g., $10.000 but at least $1000. Slate
law permitting/ plus actual damages  incurred by the POTH per violation per day for as long
as the violation continues.  In addition to  the above described penalty and damages. the
Superintendent may recover reasonable attorney's fees,  conn costs, and other expenses
associated with the enforcement activities,  including sampling and monitoring expenses.

      b   The Superintendent shall petition the Conn to impose, assess, and recover such
sums.  In  determining ainonnt of liability,  the Conn shall take into account all relevant
circumstances, including, but not limited to. the extent of harm caused by the violation.

 the magnitude aiid duration, any economic benefit gained through the industrial use' s
 violation,  corrective actions b\ the industrial user, the compliance history of me user.
 and an\ other factor as justice requires  Criminal Prosecution

 Violations - Generally

       a. Any industrial user who willfully or negligently violates anv provision of this
 Ordinance or any orders or permits issued hereunder shall, upon conviction, be guilry of a
 misdemeanor, punishable by a fine not to exceed $ 1.000.00 per violation per day or
 imprisonment for not more than one year or both.

       b. In the event of a second conviction, the user shall be punishable by a fine not to
 exceed 53.000.00 per violation per day or imprisonment for not more than 3 \ears or both

 Falsifying Information

       a. Any industrial  user who knowingly makes am- false statements, representations, or
 certifications in an\ application,  record, report,  plan or other document filed or required
 to be maintained pursuant to this  Ordmaiicc. or  M-astwater permit, or who falsifies, tampers
 with, or knowingly  renders inaccurate an\ monitoring device or method required under this
 Ordinance shall,  upon conviction, be punished b\- a fine of not more than SI .000 00 per
 violation per day  or imprisonment for not more than  one year or both

       b  In the event of a second conviction, the use'  shall be punishable by a fine not to
 e.iceed S3.000.00 per violation per day or imprisonment for not more than 3 years or both

 3.3.3   Supplemental Enforcement  Remedies   Annual Publication of Significant Violations

       The Superintendent shall publish, at least annually in the largest daily newspaper
circulated in the service area, a description of those industrial users which are found to
be in significant violation, as defined in Section  	of this Ordinance, with tviy
provisions of this Ordinajjce or an\ permit or order issued hereunder dunng the period since
the previous publication.  Performance Bonds (Optional)

       The Superintendent may decline to reissue a permit to anv industrial user which has
failed lo comply with the provisions of this Ordinance or any order or previous permit
issued herevnder unless such user first files with it a satisfactory bond, pavable to the
POTH. in a sum not to exceed a value determined by the Superintendent to be necessary to
achieve consistent compliance.  Liability Insurance (Optional)

       The Superintendent may decline to reissue a permit to any industrial user which has
failed to comply with the provisions of this Ordinance or any order or previous permn

 issued hereundei. unless the industrial user first submits proof that it has obtained
 financial assurances sufficient to restore or repair POTH  damage caused by its discharge  Water Supply Severance (Optional)

       Whenever an industrial user has violated or continues to violate the provisions of this
 Ordinance or cat order or permit issued hereunder. \\-ater sen-ice to the industrial user may
 be severed aid senice will only recommence, at the user's expense, after it has
 satisfactorily demonstrated its ability to comply.  Public Nuisances (Optional)

       Any violation of the prohibitions or effluent limitations of this Ordinance or permit
 or order issued hereunder is hereby declared a public nuisance and shall be corrected or
 abated as directed by the Superintendent or his designee.  Any person (s) creating a public
 nuisance shall be subject to the provisions of the Ciry Code (Insert Citation) governing
 such nuisances, including reimbursing the POJ~H for an\ costs  incurred in removing, abating.
 or remedying said nuisance  Informant Rewards (Optional)

       T!te Superintendent is authorized to pav up to 5500 for information leading to the
discovery of noncompliance b\ an industrial user.  In the event that the information
provided results in an administrative fine or civil penalty levied against the user, the
Superintendent is authorized to disperse up  to ten tlOl percent of the collected fine O'
penalty to the informant.   However, a single repaid payment may not e.\ceed $10.000 Contractor Listings (Optional)

       a.  Industrial users which ha\-e not achieved consistent compliance with applicable
pretreatment standards and requirements are not eligible to receive a contractual a\\iard for
the sale of goods or sen-ices to the (Insert Name of Municipality)

       b.  Existing contracts for the sale of goods or services to the (Insert Name of
Municipality) held by an industrial user found to  be in significant violation with
pretreatment standards may be terminated at the discretion of the municipality.
3.3.4  Affirmative Defenses  Treatment Upsets

      a.  Any industrial user which experiences an upset in operations that places it in a
temporary state of noncompliance. which is not the result of operational  error, improperly-
designed treatment facilities, inadequate treatment facilities, lack of preventive
maintenance, or careless or improper operation, shall inform the Superintendent thereof
immediately upon becoming au-are of the upset.  Where such mfonnation /.< given orall\.  a

 written repon thereof shall be filed b\ the user within five da\s  The report s'ia/1

       fit       A description of the upset, its camels), and impact on the disiharger's
                compliance status

       (ii)      The duration of noncompliance. including exact dates and times of noncompliance.
                and if the noncompliance is  continuing, the time by which compliance is
                reasonably expected to be restored

       (Hi)     All steps taken or planned to reduce, eliminate, and prevent recurrence of such
                an upset.
       b.  An industrial user which complies with the notification provisions of this Section
 in a timely manner shall have an affirmative defense to any enforcement action brought by
 the Superintendent for any noncompliance with this  Ordinance, or an order or permit issued
 hereunder b\ the user,  which arises out of violations attributable to and alleged to have
 occurred dunng the period of the documented and verified upset  Treatment Bypasses

       a  A b\pass of the treatment svstem is prohibited unless all of the
conditions are met:

       (i)       The bypass was unavoidable to prevent loss of life, personal injury, or se\-ere
                property damage:

       (n)       There was no feasible alternative to the bypass, including the use ofaii\ilia<^
                treatment or retention of the wasiewatei: and

       (nil      The industrial user property notified the Superintendent as described in
                paragraph b . below
       b  Industrial users must provide immediate notice to the Superintendent upon discovery
of an unanticipated bypass.  If necessary, the Superintendent may require the industrial
user to submit a written repon explaining the causels). nature, and duration of the bypass.
and the steps being taken to prevent its recurrence

       c.  An industrial user may allo\\' a bypass to occur which does not cause pretreatment
standards or requirements to be  violated, but only if it is for essential maintenance to
ensure efficient operation of the  treatment system.  Industrial users anticipating a bypass
must submit notice to the Superintendent at least 10 davs in advance.   Tlte  Superintendent
may only approve the anticipated bypass if the circumstances satisfy those set forth in
paragraph  a.. above.

        CHAPTER 4


       The centerpiece of the Control Authority enforcement response plan  is the enforcement
 response guide. This guide is a matrix which describes violations and indicates a range of
 appropriate enforcement options.  EPA First introduced the concept of an enforcement
 response guide in  its PCME Guidance document.  According to that guidance, an enforcement
 response guide serves two main functions:

       •   Defines the range of appropriate enforcement actions based on the nature and
           severity of the violation and other relevant factors

       •   Promotes consistent and timely use of enforcement remedies. In addition to
           eliminating uncertainty and confusion concerning enforcement,  this consistency
           lessens the likelihood of a successful legal challenge based on charges of
           "selective enforcement" or harassment.
      This Chapter complements information presented in the PCME Guidance document on
 developing the enforcement response guide. It outlines how the Control Authority can
 determine which responses are appropriate (Section 4.1). identifies the personnel who should
 take these responses (Section 4.2).  discusses the time frames for taking such actions
 (Section 4.3). and presents a model enforcement response guide to assist the Control
 Authority in developing its own guide (Section 4.4.2).


      The Control Authority's  first step in  drafting a response guide is to anticipate the
 types of noncompliance that it is likely to encounter.  It should anticipate as many types
 and patterns of violation as possible since the more violations It anticipates, the more
 useful the guide will be.  The model enforcement response guide in Section 4.4.2 identifies
 many common discharge and nondischarge violations. Once these  situations are identified.
 the Control Authority can proceed to the second step:  identifying enforcement responses
 appropriate for each violation.  However, the Control Authority' should remember that its
 enforcement responses  are always limited to those authorized under State law and  implemented
 in its sewer use ordinance.

      The enforcement response guide should allow the Control Authority to select from
 several  alternative initial and follow-up actions.  The Control Authority may initially rely
 on  informal actions such as NOVs where violations are nonsignificant or when the industrial
 user is cooperative in resolving its problems. However, when the violation is significant
 or when the industrial user does not promptly undertake corrective action, the Control
 Authority must respond with more severe enforcement responses including judicial
 proceedings. Similarly, when the user fails to return to compliance  following the initial
 enforcement response,  the Control Authority must "escalate" its enforcement response in a
 follow-up (more stringent) action.

      The Control Authority should also evaluate appropriate enforcement responses in the
context of the user's prior violations.  For example, if the user continues its minor
 noncompliance despite informal enforcement measures (that is. despite issuance of repeated
NOVs). the Control Authority should adopt a more stringent approach.  Similarly,  if a user
has committed several types of violations, the Control Authority's response should address
each violation. If the Control Authority seeks remedies for only the most serious
violation, the  less  significant violations could inadvertently escape enforcement.  The
Control  Authority'  should be aware that, since pretreatment enforcement is a matter of strict

 liability. the knowledge, intent, or negligence of the user should nol be taken into
 consideration except when  deciding to pursue criminal prosecution.

      The enforcement response  selected must  also be appropriate to the violation   This
 determination is often a matter of common  sense.  For example, while telephone calls may be
 appropriate responses for late reports, treatment plant upsets merit a more immediate and
 stringent response  The Control  Authority should consider the following criteria when
 determining a proper response:

            Magnitude of the violation
            Duration of the violation
            Effect of the violation  on the receiving water
            Effect of the violation  on the POTW
            Compliance history of the industrial user
           Good faith of the industrial user

These six criteria are discussed in detail below.
4.1.1  Magnitude of the Violation

      Generally, an isolated instance of noncompliance can be met with an informal response
or a NOV.  How-ever. since even an isolated violation could threaten public health and the
environment, damage public and private property, or threaten the integrity of the Control
Authority's program (e.g.. falsifying a self-monitoring report). EPA recommends  that  Control
Authorities respond to any "significant noncompliance' with an enforceable order that
requires a return to compliance by a specific deadline.  EPA has defined significant
noncompliance in its proposed revision to the General Pretreatment Regulations (see 53 Fed.
Reg. 47650) as violations  which meet one or more of the following criteria:

      1.    Violations of wastewaier discharge limits

           a.    Chronic violations.  Sixty-six percent or more of the measurements exceed the
                same daily maximum limit or the same average limit in a  six-month period (any
                magnitude of excecdance).

           b.    Technical Review Criteria (TRC) violations.  Thirty-three  percent or  more of
                the measurements exceed  the same daily maximum limit or the same average limit
                by  more than the TRC in  a  six-month period.

           c.    Any other violation(s) of effluent limit (average or daily maximum) that the
                Control Authority believes has caused alone or in combination with other
                discharges, interference or pass-through or endangered the health of the sewage
                treatment  personnel or the public.

           d.    Any discharge of a pollutant that has caused imminent  endangerment to human
                health/welfare or to the environment and has resulted in the POTW's  exercise of
                its emergency authority to halt or prevent such a discharge.

      2.    Violations of compliance schedule milestones contained in a local control mechanism
           or enforcement order, for starting construction, completing construction, and
           attaining final compliance by 90 days or more after the schedule date.

      3.    Failure to provide reports for compliance schedules, self-monitoring data, or
           categorical standards (baseline monitoring  reports. 90-day compliance reports,  and
           periodic  reports) within 30 days from the due date.

       4.    Failure to accurately report noncompliance.

       5.    Any other violation or group  of violations that the Control Authority considers to
            be significant.

 4.1.2  Duration of the Violation

       Violations (regardless of severity) which continue over prolonged periods of time
 should subject the industrial user to escalated enforcement actions.  For example, an
 effluent violation which occurs in two out of three samples over a six-month period or a
 report which is  more than  30  days overdue is considered significant, while  a report which  is
 two days late would not be deemed significant.

       The Control Authority's response to these situations must prevent extended periods of
 noncompliance from recurring.  EPA recommends issuance of administrative orders for chronic
 violations.   If the industrial user fails to comply with the administrative order,  the
 Control Authority should assess administrative penalties  or initiate judicial action. If
 the prolonged violation results in  serious harm to the POTW.  the Control Authority  should
 also consider terminating service or obtaining a court order to halt further violations as
 well as to recover the costs  of repairing the damage.

 4.1.3  Effect  on the Receiving Water

      One of the primary objectives of the National Pretreatment Program is to prevent
 pollutants from  "passing through" the POTW and entering the receiving  stream.  Consequently.
 any violation which results in  environmental harm should be  met with a severe response
 Environmental harm should be presumed whenever an industry discharges a pollutant into the
 sewerage system  which:

      •   Passes through the POTW

      •   Causes a violation of the POTW's NPDES permit (including water quality standards)

      •   Has a toxic effect on the receiving waters (i.e.,  fish  kill).

      At a minimum, responses to these  circumstances should include an administrative order
and an administrative fine.   In addition, the response should ensure the recovery from the
 noncompliant user of any NPDES fines and penalties  paid by the Control Authority.  Where
authorized,  the Control Authority may also wish to pursue damages  for the destruction or
harm to local natural resources. If a user's discharge causes repeated harmful effects, the
Control Authority should seriously consider terminating  service to the user.

4.1.4  Effect on  the POTW

      Some violations may have negative impacts  on  the POTW itself.  For example, they may
result in significant increases in treatment cotts. interfere or harm POTW personnel.
equipment, processes, operations, or cause sludge contamination resulting in increased
disposal costs. These violations should be met with an administrative fine or civil penalty
and an order to correct the violation  in addition to recovery of additional costs and
expenses to  repair the POTW.  For example,  when the industrial user's discharge upsets the
treatment plant,  damages the collection system through pipe corrosion, causes an obstruction
or explosion, or  causes additional expenses (e.g..  to trace  a spill back to its source), the
POTW's response should include cost recovery, civil penalties, and  a requirement to correct
the condition causing the violation.


 4.1.5  Compliance History of the User

       A pattern of recurring violations (even of different program requirement?) may indicate
 either that the user's treatment system is inadequate or that the user has taken a casual
 approach to operating and maintaining its treatment system.  These indications  should alert
 the Control Authority to the likelihood of future significant violations.  Accordingly.
 users exhibiting recurring compliance problems should be strongly dealt with to ensure that
 consistent compliance is achieved.  Compliance history is an important factor for deciding
 which of the two or three designated appropriate remedies  to apply to a  particular violator.
 For example, if the violator has a good compliance history, the Control  Authority may decide
 to use the less severe option.
 4.1.6  Good Faith of the User

      The user's "good faith" in correcting its noncompliance is a factor in determining
 which enforcement response to invoke.  "Good faith" may be defined as the user's honest
 intention to remedy its noncompliance coupled with actions which give support to this
 intention.  Generally, a user's demonstrated willingness to comply should predispose the
 Control Authority to select less stringent enforcement responses.  However, good faith does
 not eliminate the necessity  of an enforcement action  For example, if the POTW experiences
 a treatment upset,  it should recover its costs regardless  of prior good faith   Good faith
 is typically demonstrated by cooperation and completion of corrective measures in a timely
 manner (although compliance with previous enforcement orders is not  necessarily good  faith).


      The Control Authority should clearly establish staff responsibilities for taking
 enforcement actions  in its guide   As it matches personnel  with enforcement
 responsibilities,  the Control Authority should remember this general rule:  the time
 necessary to take enforcement actions decreases as  the authority to initiate the action is
 delegated.  For example, by allowing field personnel to initiate certain  types of adminis-
 trative actions (such  as issuing NOVs). the Control Authority ensures that these  actions  are
 taken soon after the noncompliance is discovered.  Further, the written delegation of
 specific responsibilities to staff (including the circumstances under which the delegated
 authority may be exercised) helps the Control Authority's response to be consistent and
 appear more routine to industrial users, the public, and the Approval Authority.  However.
 some decisions (such as whether to pursue civil litigation or to terminate service) must
 involve Control Authority  management and should not be delegated.  The following subsections
 provide recommendations on assigning pretreatment responsibilities to Control Authority

 4.J.I  Inspectors/Field Personnel

      Frequently, the pretreatment coordinator of the Control Authority conducts compliance
 sampling and inspections personally.  However, many local programs rely on sewer line crews
 or other field personnel for these activities.  Several Control Authorities have trained
 field personnel to:  (I) screen compliance  monitoring data, including their own inspection
 reports: (2) detect noncompliance: and (3) inform the pretreatment coordinator of
 violations.  In addition, a number of Control Authorities authorize field personnel to
 immediately respond to noncompliance with informal warnings. NOVs. or other  similar
citations.  EPA supports the involvement of field personnel in enforcement activities to the
 fullest extent possible.

 4.2.2  Pretreatment Coordinator/Industrial Waste Manager

       Nearly every Control Authority has a pretreatment coordinator or other similar
 position.  Individuals in this position should be thoroughly familiar with program
 requirements and responsible for ensuring implementation  of the Control Authority's
 pretreatment program requirements.  Moreover, industrial  users typically perceive that
 program requirements originate  with this person and look to him/her for guidance and
 assistance.  Consequently,  the pretreatment coordinator should be responsible for issuing
 NOVs and administrative orders, assessing fines, and publishing the annual list of
 significant violators.

 4.2.3  POTW Director/Superintendent

      The wastewater treatment  plant Superintendent is responsible for compliance with  the
 terms and conditions of the POTW s NPDES permit and for the overall operation and
 maintenance of the POTW. including employee safety, protection of the collection system and
 the treatment plant, effluent quality, and sludge use and disposal. Given these
 responsibilities,  the Superintendent should have authority to issue administrative orders.
 terminate service, conduct  show  cause hearings, and  initiate judicial proceedings.

 4.2.4  Control Authority Attorney

      The Control Authority attorney advises technical and managerial  personnel on
 enforcement  matters and orchestrates the judicial responses deemed necessary by the
 Superintendent.  Consequently, the attorney should be consulted on all  matters requiring the
 interpretation of the sewer  use ordinance and the enforcement response plan  Many Control
 Authorities have attorneys prepare model NOVs and administrative orders which  may (with
 simple modifications) be easily issued by technical staff   In addition, many Control
 Authorities also  routinely copy the attorney with administrative orders and fine assessments
 since further responses against the user may involve judicial action.


      In order for an enforcement action  to be effective, it  must be  timely.  For an action
 to be timely,  the violation must be detected and  responded to promptly after  its occurrence.
 Therefore, review of compliance  reports (for both effluent violations and timeliness) should
 be a high priority at the time of their submission. Generally. Control Authority staff
 should review industrial user reports within five days  of receipt.  Violations  observed by
 Control Authority field  personnel should receive even swifter attention.

      EPA recommends that no more than 30  days be allowed to elapse between the detection of
 the violation(s) and the initiation  of an enforcement response.  If the appropriate response
 is an informal warning or a NOV. the response time  should be  much shorter.  For example, a
 NOV should  be  sent to the  noncompliant user within  a week of the violation's detection.

      After its initial enforcement response, the Control Authority should closely track the
 industrial user's  progress toward  compliance.  For example, the Control Authority should not
wait several weeks to determine whether a compliance schedule milestone has been met or to
verify that a report which was to  be submitted within ten days of receiving a NOV was in
fact submitted. Instead, the  Control Authority should make this determination on  or about
the milestone date.  One  method  to ensure that user compliance is closely tracked is to
increase the frequency of user self-monitoring.  For  instance, an administrative order may

 increase self-monitoring from once per quarter to once a month.  Similarly, the Control
 Authority's own inspections of the user's facility should be increased until consistent
 compliance is demonstrated.  Generally, these follow-up compliance activities should begin
 no later than 30 to 45 days after the initial  enforcement response is taken. When follow-up
 activities indicate (hat the violation persists  or that satisfactory progress is  not being
 made, the  Control Authority  is expected to  escalate its enforcement response.  These follow-
 up enforcement actions should be taken within 60 to 90 days of the initial enforcement
 action.  The model enforcement response guide presents time frames in which enforcement
 actions should  be taken.

      As noted above, a comprehensive enforcement response guide designates several
 alternative enforcement options for each type (or pattern) of noncompliance   Once devel-
 oped. Control Authority personnel who detect noncompliance need only select an appropriate
 response from the short list of enforcement options indicated by the matrix.  There are a
 number of factors to consider when selecting a response from among these options.  Several
 of these factors are identical to  those used in originally establishing the guide:

      •   Good faith of the user

      •   Compliance  history of the user

      •   Previous success of enforcement actions taken against the particular user (e.g.. if
          NOVs  have  not previously succeeded  in returning the user  to compliance,  an
          administrative order is the more appropriate response)

      •   Violation's effect on the receiving waters

      •   Violation's effect on the POTW.
Since the remedies designated in the matrix are all considered appropriate, the Control
Authority must ueigh each of the above factors in deciding whether to use a more or less
stringent response.

      The Control Authority  should consistently follow  the response guide.  To do othenvise
sends a signal to industrial users and the public that the Control Authority is not acting
in a predictable manner and may subject the Control Authority to charges of arbitrary
enforcement decision making, thereby jeopardizing future enforcement.

      Section 4.4.2 presents a model enforcement response guide for the  Control Authority to
review as it develops its own guide. This guide identifies types of violations, indicates
initial and follow-up responses, and designates personnel and time frames for these
responses. The Control Authority  may choose to specify responses different than those on
this model.  However,  as indicated earlier, all  formal enforcement responses must be
expressly authorized by local  and State laws.

4.4.1   Using the Model Enforcement Response  Guide

      The enforcement response guide is used as follows:

      I.  Locate the type of noncompliance in the First column and identify the most accurate
          description  of the violation.

       2.   Assess the appropriateness of the recommended response(s) in column two.  First
           offenders or users demonstrating good faith efforts may merit a more lenient
           response.  Similarly, repeat offenders or those demonstrating negligence may
           require a more stringent response.

       3.   Apply the enforcement response to the industrial user.  Specify corrective action
           or other responses required of the industrial user, if any.  Column three indicates
           personnel to take each response and the time  frame  in which that response should be

       4.   Follow-up with escalated enforcement action if the industrial user's response is
           not received or violation continues.
      The Control Authority should remember to maintain all supporting documentation
 regarding the violation and its enforcement actions in the industrial user's file.

 4.4.2  Description of Terms

      Terms and abbreviations used in the model guide are defined below.  Specific
 enforcement responses that appear on this guide are described in more detail in Chapter 5.

 AO            -  Administrative Order.

 Civil           -  Civil litigation against the industrial user  seeking equitable relief.
 Litigation        monetary penalties and actual damages.

 Criminal       -  Pursuing punitive measures against  an individual and'or organization through
 Prosecution      a court of law.

 Fine           -  Monetary penalty assessed by Control Authority officials.  Fines should be
                 assessed by the pretreatment coordinator or the POTW Superintendent

 I              -  Inspector.

 IU             -  Industrial User.

 Meeting       -  Informal compliance meeting with the IU to resolve recurring noncompliance.

 NOV          -  Notice of Violation.

PC             -  Pretreatment Coordinator.

S              -  Superintendent.

SV             -  Significant Violation.

Show Cause    -  Formal meeting requiring the IU to appear and demonstrate why the Control
                 Authority should not take a proposed enforcement action  against it.  The
                 meeting  may also serve as a forum  to discuss corrective actions and compliance

4.4.3  Model Enforcement Response Guide
1.  Unpermitted discharge
2.  Nonpermitted  discharge
    (failure  to renew)

IU unaware of requirement; no harm
to POTV/environment

IU unaware of requirement; harm to

Failure to apply continues after
notice by the POTV
IU has not submitted application within
10 days of due date

Phone call; NOV with applica-     PC
cation fora

-  AO with fine                   PC
-  Civil action                   S

-  Civil action                   S
-  Criminal investigation         S
-  Terminate service              S

Phone call; NOV                   PC
1.  Exceedance  of  local  or
    Federal  Standard
    (permit  limit)
Isolated, not significant

Isolated, significant (no harm)

Isolated, harm to POTV or environment

Recurring, no harm  to POTV/environment

Recurring; significant (harm)
Phone call; NOV                   I, PC

AO to develop spill prevention    PC
plan and fine

-  Show cause order               PC, S
-  Civil action                   S

AO with fine                      PC

-  AO with fine                   PC
-  Show cause order               PC, S
   Civil action                   S
   Terminate service              S

1.  Reporting violation

Report is improperly signed or

Report is improperly signed or
certified after notice by POTV

Isolated, not significant
(e.g., 5 days late)

Significant (e.g., report 30 days
or more late)

Reports are always late or no
reports at all
                                   Failure to report  spill  or  changed
                                   discharge (no harm)

                                   Failure to report  spill  or  changed
                                   discharge (results in harm)

                                   Repeated failure to  report  spills
Phone call or NOV
                                                                              -   AO
                                                                              -   Show  cause  order

                                                                              Phone  call;  NOV
AO to submit with fine per
additional day

-  AO with fine
-  Show cause order
-  Civil action

                                              AO with fine
                                              Civil action

                                              Show cause order
                                              Terminate service

                                              Criminal investigation
                                              Terminate service
                                  PC, S

                                  I, PC


                                  PC, S



2.  Failure to Monitor
3.  Improper sampling
    Failure  to  install
    monitoring  equipment
5.  Compliance  Schedules
    (in permit)

Failure to monitor all pollutants as
required by permit

Recurring failure to monitor
Evidence of intent

Delay of less than 30 days

Delay of 30 days or more

Recurring, violation of AO
Missed milestone by less than 30 days,
or vill not affect final milestone

Missed milestone by more than 30 days,
or vill affect final milestone (good
cause for delay)

Missed milestone by more than 30 Hays,
or vill affect final milestone
(no good cause for delay)

Recurring violation or violation of
schedule in AO
NOV or AO                         PC
-  AO vith fine                   PC
-  Civil action                   S

-  Criminal investigation         S
-  Terminate service              S

NOV                               PC

AO to install vith fine for       PC
each additional day

-  Civil action                   PC
-  Criminal investigation         S
-  Terminate service              S

NOV or AO vith fine               PC
                                                                              AO vith  fine                       PC
                                                                                 Show cause order                PC,  S
                                                                                 Civil action                    S
                                                                                 Terminate  service               S

                                                                                 Civil action                    S
                                                                                 Criminal  investigation         S
                                                                                 Terminate  service               S


1.  Wastest reams are  diluted
    in lieu of  treatment
    Failure  to mitigate
    noncompliance  or  halt
    Failure  to  properly
    operate  and maintain
    pretreatment  facility

Initial violation


Does not result in harm

Does result in harm

See No. 2 above

AO with fine

   Show cause order
-  Terminate service


-  AO with fine
   Civil action




1.  Entry  Denial
2.   Illegal  Discharge
Entry denied or consent withdrawn
Copies of records denied

No harm to POTV or environment

Discharges causes harm or evidence
of intent/negligence

Recurring, violation of AO
Obtain warrant and return
to IU

AO with fine

-  Civil action
   Criminal investigation

Terminate service


3. Improper Sampling

4. Inadequate recordkeeping

5. Failure to report
additional monitoring
Unintentional sampling at incorrect NOV
Unintentionally using incorrect sample NOV
Unintentionally using incorrect sample NOV
collection techniques
Inspector finds files incomplete to NOV
missing (no evidence of intent)
Recurring AO with fine
Inspection finds additional files NOV
Recurring AO with fine
A.  All  violations will be identified and documented within five days  of  receiving  compliance  information.

B.  Initial  enforcement responses [involving contact with the industrial  user  and requesting information on corrective
    or preventative action(s)) will occur within 15 days of violation  detection.

C.  Follow up actions for continuing or reoccurring violations will be taken within 60  days of  the  initial enforcement
    response.  For all continuing violations,  the response will include a compliance schedule.

D.  Violations which threaten health, property or environmental quality are considered  emergencies  and will receive
    immediate responses such as halting the discharge or terminating service.

E.  All  violations meeting the criteria for significant noncompliance  will be  addressed with an enforceable order within
    30 days  of the identification of significant noncompliance.


      Once thr enforcement response guide has been adopted, the Control Authority should
periodically reassess its effectiveness in accomplishing  pretreatmeni program goals  This
review should be conducted in light of the primary objectives for developing an enforcement
response guide:

      •  To ensure that violators return to compliance as quickJy as possible

      •  To penalize noncompliant users for pretreatment violations

      •  To deter future noncompliance

      •  To recover any additional expenses incurred  by the Control Authority attributable to
         the noncompliance.

      When the Control Authority identifies aspects of the guide which require improvement  or
adopts innovations to increase its effectiveness, it should promptly incorporate these
amendments.  For example, if the Control Authority revises  its ordinance to increase its
administrative fine penalty authority, the guide should be revised accordingly

         CHAPTER 5

                       5.   ENFORCEMENT RESPONSES
       The Control Authority begins its enforcement process by identifying an industrial
 user's violation.  Once a violation  is identified, the Control Authority must determine
 whether the violation should be considered significant or nonsignificant.  Chapter 4
 discusses factors  in making this determination.  If the violation is significant, the
 Control Authority must determine the most appropriate response.  This response should  be
 proportionate to the violation's severity,  promote  compliance in a  timely manner, and be
 authorized under State law and the Control Authority's sewer use ordinance or regulations.

       This chapter provides an overview of seven types of enforcement responses commonly
 available to Control Authorities.  Which response, or combination of responses to use
 depends on the violation's severity, its duration, its effect on the environment and the
 treatment plant, and  the user's compliance history as well as its good faith in taking
 corrective action. The seven enforcement responses described in  this chapter are:

          Notice  of violation
          Administrative  fines
          Administrative  orders
          Civil litigation
          Criminal prosecution
          Termination of sewer service
          Supplemental enforcement responses

 Each section highlights the legal authority necessary to use the response, discusses how and
 when to use it (including a summary of the  response's advantages and disadvantages), and
 presents examples of situations where Control Authorities have used it successfully.

      Before using any of these responses, the Control Authority is cautioned to review Stale
 la« and the ordinance to determine whether It Is available (see Chapter 3).  Where
 necessary, the Control Authority may have to revise  its ordinance  prior to the use of some
of these responses.


                          5.1   NOTICE  OF VIOLATION
       The most common form of a Notice of Violation (NOV) is an official communication from
 the Control Authority to the noncompliant industrial user which informs the user that a
 pretreatment violation has occurred.  The NOV is an appropriate initial response to
 nonsignificant violations.  In case of significant noncompliance. a NOV may also be issued
 prior to issuing an administrative order or pursuing judicial remedies. The NOV's purpose
 is to notify the industrial user of the violation(s): it may be the only response necessary
 in cases of infrequent and generally minor violations.  Some POTWs use NOVs as a vehicle to
 assess administrative fines or to impose compliance schedules,  for purposes of this
 discussion the NOV is defined in its basic function: to inform industrial users that a
 pretreatment violation has taken place.  If the user does  not return to compliance following
 receipt of the NOV, the Control Authority should proceed to more stringent enforcement
 5.1.1  Legal Authority Necessary to Issue NOV's

      Since the NOV is simply a communication  from the Control Authority to a noncompliant
 user, the sewer use ordinance ordinarily need not authorize its use  However, the Control
 Authority  may  have difficulty issuing NOVs where the ordinance creates burdensome procedural
 restrictions.  For example, many sewer use ordinances specify that only the Director of
 Public Works,  the City Council, or the Mayor may issue NOVs.  Limiting authority to high
 executive officials delays the enforcement process  and prevents NOVs from being routinely
 used upon  discovery of noncompliance.  Thus, authority to issue NOVs should be delegated to
 the Control Authority's inspectors and/or its pretreatment coordinator.

      Another  common ordinance  provision requires a hearing to be conducted before a NOV may
 be issued.  While hearings may be important and  appropriate  elements of administrative order
 issuance or administrative fine assessment, they should not be used for NOV issuance.
 Finally, the Control Authority  should not adopt ordinance provisions authorizing NOV
 issuance which impede subsequent (and more stringent)  enforcement responses.  These
 provisions  typically  require the Control Authority to issue a NOV and allow the user a
 predetermined period of time to correct the noncompliance (e.g.. 30 days) before the Control
 Authority may assess administrative fines or seek judicial remedies. While the NOV can be
 an effective tool, its use is not  appropriate in every circumstance and terms should not
 delay implementation of more  severe responses.

 5.1.2  When to Issue  NOVs

      The  NOV is issued  for relatively minor or infrequent violations of pretreatment
 standards and requirements. Although it may lack the deterrent effect of an administrative
 fine or criminal indictment, a  NOV can nevertheless be an effective response for several
 reasons. First, the  NOV provides  the industrial user with an opportunity to correct
 noncompliance  on its own initiative rather than according to a schedule of actions
determined by the Control Authority, and thus fosters a cooperative environment  between the
industrial user and the Control Authority.  Second, the NOV documents the initial attempts
of the Control Authority to resolve  the noncompliance. Should circumstances  require the
Control  Authority to subsequently take a more stringent approach, the NOV establishes that
the Control Authority escalated its response according to  its enforcement response plan.
rather than reacting to the noncompliance with  arbitrarx  or unnecessarily harsh enforcement.
Finally, by providing the Control Authority with an inexpensive and prompt response to
violations,  the NOV demonstrates to the regulated  community  the viability of the  Control
Authority's enforcement program.

       Table 5-1.1 details several instances where the issuance of a NOV is considered an
 appropriate enforcement response  While this list is not all-inclusive, it indicates the
 categories of violation which are properly addressed  by  NOVs

 5.1.3  How to Issue NOVs

       Since NOVs are official communications, they should be issued on Control Authority
 letterhead  A NOV may take the form of a letter to  the industrial user or a preprinted form
 with the particular offense(s) written (or  typed) in the blanks provided.  A number of
 Control Authorities use citation  booklets, similar in design to parking ticket booklets.
 which contain these preprinted forms.

       The contents of the NOV  vary, depending on  the Control Authority's objectives. Some
 Control Authorities issue brief NOVs which indicate only that the Control  Authority has
 detected a violation.   Many Control Authorities issue an NOV which includes a statement
 detailing the pretreatment standards violated and the  circumstances surrounding the
 violation.  Typically, a more detailed NOV contains  the following minimum findings of fact:

       •   The Control Authority is charged with constructing, maintaining, and regulating the
          use of the sewer system (and treatment works)

       •   To protect the sewer system (and treatment works), the Control Authority administers
          a pretreatment program

      •   Under this program, the  industrial user was issued a permit

      •   The permit contained  numerical limits on  the  quality of pollutants which the
          industry could discharge as well as self-monitoring requirements and other duties

      •   On (date), pollutant analysis showed that (he quantity of (pollutant) exceeded the
          permit limitation,  etc.
A sample NOV appears as Figure 5-1.1.

5.1.4  Recommendations for NOV Issuance

      For maximum effectiveness, the NOV should be written and delivered to the user
immediately upon detection of the violation.  As a general rule, the NOV should be received
by the user no later than five business days after discover, of the noncompliance. To
ensure that NOVs are promptly issued, the Control Authority should predetermine which of its
personnel may issue and/or deliver the NOV.  The NOV should either be hand-delivered to the
industrial user by Control Authority personnel or  be  sent to the industrial user via
certified  mail.

      Authenticated copies of NOVs may serve as evidence in judicial proceedings.  Therefore.
a copy of each NOV, signed by the responsible Control Authority official, should be placed
in the industrial  user's file, along with the certified mail receipt or similar statement by
the person who delivered it. In addition, the official  responsible for tracking pre-
treatment compliance (if not the issuer) should be informed of the NOV s issuance.  If the
Control Authority uses an automated compliance tracking system (such as the PCME software).
issuance of the NOV should be entered into the system.  These actions will facilitate closer
monitoring of the noncompliant user's corrective actions and self-monitoring reports.  Many

       1.   Unpermitted Discharges

           •  Falling to file permit  renewal  application  but  continuing
              to comply with expired  permit

           •  Reported spill vith no  known adverse effects

       2.   Effluent  Limit  Violations

           •  Isolated,  insignificant exceedances

       3.   Monitoring and  Reporting Violations

           •  Inadvertently  using incorrect sample collection procedures

           •  Failing to submit more  frequent self-monitoring information

           •  Failing to properly sign or  certify  monitoring  reports

           •  Failing to notify of slug  load, which has no known
              adverse effects

           •  Filing  late  report,  including compliance schedule reports
              (less  than 30  days)

      4.   Hissed Compliance Schedule Deadlines

           •  Hissing interim or  final deadline by 90 days or  less

                                  EXAMPLE NOV


                                 (NAME  OF CITY)

IN THE MATTER OF                   *
NAME OF INDUSTRY                  *           NOTICE OF VIOLATION
ADDRESS                               *
                               LEGAL  AUTHORITY
 Tlie following findings are made and notice issued pursuant to the authorirv vested in the
 Superintendent of Uaste^vater Services, under Section	 of the dry's Sru'ei Use Ordinance.
 This order is based on findings of violation of the conditions of the wasiewater discharge
 pennii issued under Section    of the G'rv 5 Sewer Use Ordinance.
 /.    (Name of City/ is charged with construction, maintenance, and contro' of the
      s\siem and treatment
2.    To protect the sewer system and treatment works. [None of City! administers a
      pretreatment program

3.    Under this pretreatment program. {Name of Industry] was issued a discharge penrin.

4.    The discharge permit issued to {Name of Industry! contained numerical limits on the
      quality of pollutants, which {None of Industry! could discharge ai\d self monitoring

5.    On [Date I pollutant analysis re\-ealed that the qitantin of [pollutant] exceeded the
      permit limitation.



/ .    It is in violation of its discharge permit and the server use ordinance of fName of

                                                 Signed:    _
                                                           Superintendent of Sewer Services
                                    FIGURE 5-1.1

Control Authorities schedule routine inspection and sampling visits to focus on facilities
which  have recently received NOVs.

      If the user does not return to compliance, the Control Authority should escalate to
more stringent enforcement responses  rather than  repeatedly issuing NOVs which do not result
in a return to compliance.


                         5.2   ADMINISTRATIVE FINES
       An administrative fine is a monetary penalty assessed by the Control Authority for
 violations of pretreatment standards and requirements  Administrative fines are among the
 most effective responses to user noncompliance because they may be assessed at the Control
 Authority's discretion and the amount of the fines may be determined on an individual basis.
 Administrative fines differ from civil penalties (penalties imposed through court
 proceedings), since fines are assessed by the Control Authority directly and do not require
 court intervention unless the user contests the action or refuses to pay the fine.
 Administrative fines are punitive  in nature and are not  related to a specific cost born by
 the Control Authority.  Instead, fines are to recapture the  full or partial  economic benefit
 of noncompliance. and to deter future violations.

 5.2.1  Legal Authority Necessary to Assess Administrative Fines

      The Control Authority must establish  clear legal  authority to assess administrative
 fines.  This authority must be within the scope of the Control Authority's enforcement
 powers as delegated by State law  and must be  expressly implemented in its sewer use
 ordinance.  The Control Authority should consult its attorney to determine the extent of its
 authority under State law and how best to detail these powers  in the sewer use ordinance.

      If State law confers broad authority to assess administrative fines,  the Control
 Authority (as noted above) must adopt specific ordinance provisions  or regulations detailing
 this authority.  At least one industrial user has successfully appealed an  administrative
 fine by alleging that the sewer use ordinance did not expressly establish authority to  issue
 administrative fines. By enacting  these provisions, the Control Authority also declares its
 intention to use this enforcement  response to punish noncompliance.

      In addition to authorizing assessment of the fines, the sewer use ordinance should
 detail procedures for their assessment. For example, the ordinance  should provide that
 fines may be assessed prior to or subsequent to a  hearing, and further provide that both the
 fine itself and the dollar amount assessed are subject to appeal.

      The ordinance should also  set forth the  maximum specific dollar amounts (per violation
 per day) which the Control Authority may assess.  By citing maximum amounts, the Control
 Authority retains  its discretion to  assess fines in lesser amounts when appropriate.  For
 example, by stating that users are subject to  administrative fines not  to exceed  $1.000.  the
Control Authority may fine users that  submit late  reports $25. while fining users
 responsible for interference or pass through  SI.000.  Some Control  Authorities  have also
 published fine schedules (that is.  matrices of predetermined fines for various degrees of
 violation).  To preserve its discretion to respond to noncompliance on a case-by-case basis.
a Control Authority which adopts this  method of determining appropriate fines should warn
 its users that fine schedules are merely guidance and that the maximum fine available may be
 used as an appropriate first response.

      The New York City Department of Environmental Protection  has promulgated  an
administrative fines provision in its "Rules and Regulations Relating to the Use of the
Public Sewers. Including Sewer Surcharges" which  incorporates many of the elements of
administrative fines discussed above. This provision states:

      Any person who violates or falls to comply with any of (he  provisions of the (Rules and
      Regulations) or any order, rule or regulation issued by the Board or Commissioner
      pursuant thereto shall be liable for a civil penalty of not less than fifty nor  more
      than one thousand dollars for. each violation.  In  the case of a  continuing violation.

      each day's continuance shall be a separate and distinct offense. The Environmental
      Control Board shall have the power to Impose such penalties.  A proceeding to Impose
      such penalties shall be commenced by the sen-Ice of a notice of violation returnable to
      such Board. Such Board, after a hearing as provided by the rules and regulations of
      the board, shall have the power to enforce Its final decisions and orders Imposing such
      civil penalties as if they were money judgments.  . . . The Board. In  its discretion,
      may. within the limits set forth In this subdivision In any court of competent
      Jurisdiction establish a schedule of dvil penalties indicating the minimum and maximum
      penalty for each separate offense.

5.2.2  When to Assess  Administrative Fines

      Administrative fines are recommended as an escalated enforcement response, particularly
when NOVs or administrative orders have not prompted a return  to compliance. Whether
administrative fines are appropriate responses  to noncompliance also depends  greatly on the
circumstances surrounding the violation. When using this enforcement response, either
singly or in conjunction with another response (e.g.. an administrative order  requiring the
industrial user to take steps  to return to compliance), the Control  Authority should
consider the following factors:

      •   The type and severity of the violation

      •   The number of violations  cited

      •   The duration of the noncompliance

      •   The impact of the violation on the wastewater treatment plant and the  environment
          (e.g.. whether  the violation caused pass through or interference)

      •   Whether (he violation threatened human health

      •   Whether the industrial user derived any economic benefit or savings from the

      •   The compliance history of the user

      *   Whether the user  is making good faith efforts to restore compliance

      •   Other policy considerations normally involved in an enforcement  decision.

      Suggestions for instances when fines are particularly appropriate include:

      •   When the industrial user remains in noncompliance after  receiving  repeated NOVs

      •   When the industrial user violates  the terms of an administrative order  (such as
          failing lo meet a compliance schedule deadline).

      The City of New York (through the ordinance provision quoted above)  is  authorized to
assess administrative fines for every  instance of user noncompliance. This provision gives
the City the broadest possible discretion in the use of its administrative fine  authority

 5.2.3  How to Assess Administrative Fines

      The process of assessing administrative fines involves three steps:  (I) determining
 the amount of the Fine: (2) selecting a mechanism through which to impose the Tine: and (3)
 collecting the fine.  To successfully assess administrative fines, the Control Authority
 must have adequate legal authority, well-defined procedures, and complete documentation of
 the noncompliance (such as chain-of-custody forms and detailed sampling records).  If the
 industrial user challenges the fine in court, the Control Authority must be prepared to
 defend its actions.
Determining the Amount of the Fine

      The amount of the fine should be proportionate to the economic benefit enjoyed by the
industrial user from the noncompliance and the harm caused by the violation.  Two primary
methods exist for determining fine amounts:  assessing on a case-by-case basis (based upon
well-defined criteria) and following a schedule  of fines (also based upon well-defined
criteria).  While each method has advantages, it is strongly suggested (for reasons
explained more fully below) that  the Control Authority adopt one of the two approaches
rather than attempting to combine elements of each.

      Determining  the amount of the fine on a case-by-case basis is  more flexible and may
ultimately allow for broader consideration of appropriate fine amounts than adherence to a
predetermined fine schedule. However, unless this amount  is based  on previously determined
criteria, the Control Authority may not be able to justify its decision  and is therefore
more vulnerable to  user charges  of arbitrary or selective enforcement.  If the Control
Authority develops and uses a predetermined fine schedule, its response will be prompt and
unlikely to be challenged (unless the fine amount was inconsistent with the schedule or the
schedule amounts were used in setting fines for some users and  disregarded  for others).

Developing a Fine Schedule

      Control Authorities have used several varieties of fine  schedules ranging from a flat
rate for  any violation to a sliding scale based on the type and nature of noncompliance.
Some examples are  provided below:

      •   Flat  Rate.  New York City has the authority to issue administrative fines up to
          $1000 per violation per day.  The City's policy is  to issue the  maximum fine
          regardless of the  nature of the violation.

      •   Flat  Rate  with Escalation.  The Town of Lisbon. Maine, uses a fine  schedule for
          violations of industrial  discharge permits that begins at SI00 per violation and
          increases  by $100 increments for each subsequent violation to a maximum of $1000 per
          violation.   If the industry remains in  compliance for a period of one  year, the
          cycle begins anew and  subsequent fines are assessed at $100 and increased by $100

      •   Fine Calculated Using  Matrix. Control Authorities in  Boston. Massachusetts and
          Seattle.  Washington, have each developed a matrix to determine the size of an
          administrative fine. The matrices address such criteria as magnitude of violation.
          potential impact to the POTW or the  environment, violator culpability, and the
          frequency of the violation.

      •    Fine Based on Type of Noncompliance.  Washington County.  Oregon, has developed
          specific fines for various types of noncompliance as well as for  repeat offenses

       o  Fine in Addition to Cost Recovery.  The City of Niagara Falls. New York, has
          established a schedule of fines for categories of violations.  This schedule also
          states that the violator will cover any costs incurred by the City because of the

       o  Fine Based on Economic Benefit of Noncompiiance.  There ma> be some industries in
          deliberate noncompliance because the penalties of noncompliance are less than  the
          costs of achieving compliance   In these situations, the Control Authority must
          remove the economic advantage of noncompliance. For guidance on calculating fines
          based or, the economic benefit of noncompliance.  see the Guidance Manual  for
          Calculation of Economic Benefit of Noncompliance with Pretrcaimcnt Standards (1989).
       Determining a fine amount which reflects the violation's significance is extremely
 important.  If a fine is too small, its deterrent value is lost and the amount may be
 regarded by the user as a tax or nominal charge to pollute.  If the fine is too great, it is
 more likely to be contested and could bankrupt the industry (making necessary investments in
 pretreatment equipment impossible and  potentially forcing unnecessary  closure).  In cases of
 extreme hardship, the Control Authority may consider reducing or suspending the fine  as part
 of a consent order or a show cause proceeding.

 Methods of Assessing Administrative Fines

       Once the violation is documented and an appropriate fine amount determined, the Control
 Authority  must notify the industrial user of the fine assessed and collect the fine.  A
 variety of mechanisms are used by Control Authorities around the country to assess
 administrative fines.

       o   Assessment on  Sewer Bill.  The Control Authority adds the administrative fine to
          other  sewer charges when billing the industry for sewer  services.  The Control
          Authority  identifies the additional charge as a fine for noncompliance and also
          includes a comment indicating that if compliance is not achieved before the next
          billing period, an escalated enforcement action  will be taken against the industrial

       o   Notice of Violation. A NOV  is used to notify the industrial user of its
          pretreatment violation(s) and to inform  the  user that a fine has been assessed. The
          Notice should include  a provision explaining that full  payment is due to the city
          treasurer within a specified period of time.

      o   Administrative Order.  A formal order  is issued by the Control Authority specifying
          that the industrial user is in noncompliance and outlining actions which are
          required of the  industry including the payment  of an administrative fine.

      o   Show Cause Hearing.  A formal or informal meeting between the noncompliant industry
          and the Control Authority.  One outcome of this meeting may be the assessment of an
          administrative fine.  In some cases, a show cause hearing is granted to give the
          industry an opportunity to appeal the fine.

      Whatever the assessment process  selected, it should at a minimum specify the violations
for  which  the penalty is being assessed,  indicate the amount of the  penalty, and order the
industrial  user to take corrective  action to return to compliance.   These procedures must be
detailed in the enforcement response plan.


                        5.3   ADMINISTRATIVE ORDERS
       Administrator Orders (AOs) arc enforcement documents which direct industrial users to
 undertake or to cease specified activities.  The terms of AOs may or may not be negotiated
 with industrial users.  Administrative orders are recommended as the first formal response
 to significant noncompliance (unless judicial proceedings are more appropriate), and may
 incorporate compliance schedules, administrative penalties,  and termination  of sen ice
 orders.  This section focuses on four common types of administrative orders:

       •  Cease and desist orders
       •  Consent orders
       •  Show cause orders
       •  Compliance orders.

 Examples of each type of AO appear at the end of this section.

 5.3.1  Legal Authority Necessary To Issue Administrative Orders

       The Control Authority's ability to issue administrative orders depends upon the extent
 of its enforcement authority in its sewer use ordinance and  its enabling authorities as
 delegated by State law.  If State law provides that Control Authorities  "may enforce" their
 pretreatment programs through "orders." the Control Authority can likely issue any of the
 four types of orders discussed below.  Control  Authority  officials should seek legal
 opinions on the extent of their authority to issue AOs and resolve any ambiguities regarding
 this  authority before issuing orders to noncompliant users

        If State law confers general authority to issue AOs.  the sewer  use ordinance will
 normally specify which types of orders the Control  Authority intends to issue. Ordinance
 provisions which vest discretion in Control Authority officials to determine which order(s)
 are appropriate may read as follows:

       If (he user fails to correct a violation within 15 days of receiving notice of the
       violation, the Control Authority shall issue  an  administrative order for the correction
       of this violation: provided, however, that the user Is not relieved of responsibility
       for unauthorized discharges which occur within the 15 day Interval.

 If the Control Authority adopts ordinance provisions similar to this one. the ordinance must
 also  specify that the user is not relieved of civil  or criminal  liability for violations
 which occur in the 15 day interval (to avoid granting users a "grace period" in which
 unauthorized discharges do not subject the user to enforcement action).

      The sewer use ordinance can specify the types of orders which may be issued and limit
 the circumstances in which they may be issued. For example.  Control Authority officials may
 be authorized to issue cease and desist or termination orders only in cases of discharges
which threaten  to endanger human health and the environment  or interfere with the POTW.
However, these provisions may not confer adequate legal authority to immediately halt all
discharges because of treatment plant malfunctions or slug loads by other users which force
the treatment plant to temporarily halt its operations. A California Control Authority
authorizes cease and desist orders under the following provision:

      When the agency finds that a discharge of wastewater has taken place, in violation of
      prohibitions or limitations of this ordinance or the provisions of a wastewater
      discharge permit, the manager may issue an order  to cease and desist, and direct those

      persons not complying with such prohibitions, limits, requirements or provisions to
      comply forthwith, to comply in accordance with a time schedule set forth by the agency.
      or take appropriate remedial or preventive action In the event of a threatened
      Legal authority to issue show cause orders and to conduct show cause hearings should
also be detailed in the sewer use ordinance.  A Florida Control Authority uses the following
ordinance provision to establish its authority to conduct show cause hearings:

      The City may order any user who causes or allows an unauthorized discharge to show
      cause before the Code Enforcement Board why the proposed enforcement action should not
      be taken.  A notice shall be served on the user specifying the time and place of a
      hearing to be held regarding  the violation, the reasons why the action Is to be taken.
      and the proposed  enforcement action, and directing the user to show cause why the
      proposed enforcement  action should not be taken.

Ordinance provisions which provide notice of the hearing to the  user and detail how the
hearing is to be conducted are contained in the sample sewer use ordinance in Chapter 3 of
this guidance.

5.3.2 Common Elements Of Administrative Orders

      The following elements  are common to all AOs:

      •   Tillc   The title should specify the type of order being  issued, to whom it i< being
          issued,  summarize the purpose(s) of the order, contain an identification number, and
          be printed on the letterhead of the Control Authority.

      t   Legal authority.  The authority  under which the order is issued,  i.e.. its enabling
          legislation and/or sewer use ordinance (with complete  citations to State la* and
          ordinance provisions) should be provided.

      •   Finding of noncompliance   All violations must be carefully described,  including the
          date(s). the specific permit  conditions/ordinance provisions violated,  and any
          damages attributable to the  violation

      •   Ordered activity.  All orders should clearly set out all ordered activity including
          installation of treatment technology, additional monitoring, appearance at a show
          cause hearing,  etc.

      •   Milestone dates for  corrective actions.  Where compliance schedules are used, all
          progress or "milestone" dates must be clearly established, including  due dates for
          any required written reports.

      t   Standard clauses. Clause(s) which provide that:  (I) compliance uith the terms and
          conditions of the AO will not be construed to relieve the user  of its obligation to
          comply  with applicable Federal.  State or local law: (2) violation of the AO itself
          may subject the user to all  penalties available under the sewer use ordinance. (3)
          no provision of the  order will be construed to limit the Control Authority s
          authority to issue supplementary or additional orders or take other action deemed
          necessary to implement  its  pretreatment program:  and  (4) the  provisions of the order
          shall be binding upon the user, its officers, directors, agents,  employees.

          successors, assigns, and all persons, firms, and corporations acting under, through.
          or on behalf of the user.
 5.3.3  Types Of Administrative Orders

      The circumstances of an industrial user's noncompliance frequently dictate the type of
 order needed to achieve an early return to compliance: no single type of AO is appropriate
 for all situations, and even when a particular order is the best choice, there are potential
 disadvantages which the Control Authority should consider before issuing it. In fact, the
 Control Authority may use more than one type of order when responding to a particular
 instance of noncompliance.  For example, an industrial user which discharges a slug load may
 be issued an order which requires the industrial user to cease and desist (to immediately
 halt the unauthorized discharge) and to show cause (i.e..  to appear before the Control
 Authority and explain why  more severe enforcement actions should not  be taken).

 Cease and Desist Orders

      A cease and desist order directs a noncompliant user to cease illegal or authorized
 discharges immediately or to terminate its discharge altogether. A cease and desist order
 should be used in situations where the discharge could cause interference or pass through.
 or otherwise create an emergency situation.  The order may be issued immediately upon
 discovery of the problem or following a hearing.   In an emergency, the order to cease  and
 desist may be given by telephone.  However, a subsequent written order should be served on
 the industrial user, either in person or by registered mail. If necessary (and within its
 legal authority), the Control Authority may  order immediate cessation of any discharge to
 its collection system, regardless of a  user's  compliance status   In nonemergency
 situations,  the cease and  desist order may be used to suspend or permanently revoke
 industrial wastcwater discharge permits.  If the user fails  to comply with the order,  the
 Control Authority may take independent action to halt  the discharge, such as terminating
 water service or blocking the user's connection point.

 Advantage of the Cease and Desist Order

      •   The order allows for  immediate cessation of unauthorized discharges, thus halting
          the noncompliance and removing any threat to the POTW or  receiving stream.

 Disadvantage of the Cease and  Desist Order

      •   The cease and  desist order may damage municipal/industrial relationships by forcing
          •n industry to halt production before being given an opportunity to solve the

Consent Orders

      The consent order  combines the force of an AO with the flexibility of a negotiated
settlement.  The consent order is an agreement between the Control Authority and the
industrial user normally containing three elements: (I)  compliance schedules: (2) stipulated
fines or remedial actions: and (3) signatures of Control Authority and industry

       A consent order is appropriate when the user assumes responsibility  for its
 noncompliance and is willing (in good faith) to correct its cause(s).  The user need not
 admit the noncompliance in the text of the order.  Thus, signing the order  is neither an
 admission of liability for purposes of civil litigation nor a plea of guilty foi  purposes of
 criminal prosecution.  However, the Control Authority must make sure that the consent order
 prohibits future violations and provides  for corrective action on the part of the industry.
 The clause below illustrates how a Control Authority  in Rhode Island uses  consent orders:

       None of the foregoing agreements, statements, stipulations and  actions taken by the
       Industrial user shall be deemed an admission by the user of the allegations contained
       within the notice  of violation referred to herein. The agreements, statements, stipu-
       lations, flndinp,  and actions taken herein are made for the purpose of settling this
       matter economically and amicably and they shall not be used for  any purpose, except for
       any proceedings to enforce the provisions of this consent order.

 In determining the terms to include in the consent order, the Control Authority may take a
 user's extenuating circumstances (e.g..  financial difficulties,  technical problems, and
 other impediments to necessary  corrective action) into consideration.

       The consent order should address every identified (and potential) deficiency in the
 user's compliance status  at the time of the order.  An example of the detail  needed in a
 consent decree  can be seen in the following provisions negotiated between a Maryland Control
 Authority and a noncompliant food processor. The order directed  the user  to:

       •   Obtain the  services of a licensed professional  engineer specializing in wasteuater
          pretreatment to design a pretreatment system

       •   Submit plans of the proposed  pretreatment system to the  Control Authority and the
          State for review and approval

       •   Install a pretreatment  system

       •   Achieve compliance with the limits established in the Control Authority's ordinance
          within six months

       •   Pay $500 per day for  each day the user failed to comply  with any of the
          requirements/deadlines contained in the order, on written demand of the Control

      a   Notify the Control Authority and State of any failure to comply  with deadlines  set
          forth  in the order, within one working day after expiration of the  deadline, in
         writing, and describe the reason(s) for the failure, additional amounts of time to
          complete the necessary work,  and  steps to be taken to avoid further delays.

Advantages of the Consent Order

      •  The consent order is generally the easiest order to draft since its terms have been
         agreed to by both parties.  These terms may include findings of show cause  hearings
         or outcomes of confidential settlement negotiations.

      •  The consent order offers the best means to reach  compliance while preserving
         constructive Control Authority/industrial  user  relationships.  Because the consent
         order allows the user to influence  approaches  to corrective action, it  fosters
         cooperation and may also be the fastest means to attain compliance.

       •   Although the provisions of a consent order reflect a voluntary agreement, its
           enforceability is equal to that of a cease and desist or compliance order.

 Disadvantages of the Consent Order

       •   Since the user has influence in drafting the agreement, final terms may compromise
           the Control Authority's desire for stringent enforcement.

       •   The Control Authority may  delay implementing additional enforcement  measures while
           negotiating terms of the consent order.

       •   The provisions of a consent order, unless carefully drafted, are  subject  to
           conflicting interpretations by the parties.

 Show Cause Orders

       An order to show cause  directs  the user to appear before the Control Authority, explain
 its noncompliance. and show cause why more severe enforcement actions  against  the user
 should not go forward. The order to show cause is typically issued after informal contacts
 or NOVs have failed to resolve the  noncompliance.  However, the show cause order/hearing  can
 also be used to investigate violations of previous orders.

       The show cause hearing can be conducted by the Control Authority's attorney, its Board
 of Directors  (or City Council), the POTW superintendent, city engineer, pretreatment
 coordinator,  or an impartial official designated by the ordinance   The hearing may be
 formal (i.e.. conducted according to the  rules of evidence, with verbatim transcripts and
 cross-examination of witnesses) and open to the public.  Alternatively, the Control
 Authority may  choose to conduct an  informal hearing or close it to the public.  However.
 findings resulting  from informal  hearings should also be carefully documented  For example.
 the Control Authority could use an informal hearing to interview employees of the industrial
 user, examine discharge records, or negotiate the installation of a pretreatment system.

       If a  formal  hearing is held, the Control Authority will typically put forth evidence of
 noncompliance. In response, the user may admit or deny the noncompliance. explain
 mitigating  circumstances, demonstrate  its eventual compliance and describe all other
 corrective measures.  During the hearing, the Control Authority can explore the circum-
 stances surrounding the noncompliance and evaluate the sufficiency of the evidence for
 subsequent civil or criminal actions.  If the user does not understand the violation's
 nature (that is. what constitutes a violation under the ordinance), the hearing can  serve  to
 educate the user while saving the Control Authority litigation expenses.

      The  hearing officer or review board must then determine whether further action is
 warranted and. if so.  its nature and extent. For example, if the problems causing  the
 noncompliance appear to be resolved or nearly resolved at the hearing s conclusion, a
 consent decree may be drafted which incorporates the findings of the review board.  If the
 user must install pretreatment equipment to achieve compliance, the circumstances
 surrounding  the noncompliance should be weighed and a reasonable schedule for  installation
and start-up developed.  Completion of this schedule and  any additional requirements will
 normally be administered through the consent order.

      Should the hearing result in an impasse between the user and the  hearing officer, the
Control Authority  may follow up  the  meeting by  issuing a compliance order,  including a
schedule, impose a fine or refer the case to its attornev for civil litigation or criminal
prosecution.  The  results of a formal show cause hearing, along with any data and testimony

(recorded by tape machine or stenographer) submitted as evidence, are generally available to
the public and may also serve as evidentiary support for future enforcement actions

Advantages of the Show Cause Order

      •   Unlike judicial enforcement in which the Control Authority (as plaintiff or
          prosecutor) must affirmatively prove the noncompliance. show cause hearings place
          the burden of proof on  the user to show why its  permit should not be suspended or
          revoked  or why it should not be fined or sued for its noncompliance.

      •   The hearing process allows the user to present its case, explain mitigating circum-
          stances or criticize the quality or accuracy of the Control Authority's compliance

      •   The hearing can improve Control Authority/industrial relationships by promoting
          communication  about noncompliance before judicial remedies are sought.

      •   The hearing process gives the Control Authority  an opportunity to assemble evidence
          of noncompliance and make it a matter of public record, thus establishing
          documentation for future enforcement actions.

Disadvantages of the Show Cause Order

      •   The show  cause hearing involves a greater amount of time and a greater expenditure
          of resources to effectuate than cease  and desist or compliance orders.  The hearing
          may allow a  user an excessive length of time to achieve compliance, thereby
          presenting a disadvantage not only to the pretreatntent program but also to other
          competitors bearing the costs of compliance.

Compliance Orders

      A compliance order directs  the user to achieve or restore compliance by a date
specified in  the order.  It is issued unilaterally and its  terms need not be discussed with
the industry in advance.  The compliance order is usually issued when noncompliance  cannot
be resolved  without construction,  repair, or process changes.  Compliance orders are also
frequently used to require industrial users to develop management practices, spill
prevention programs and related Control Authority pretreatment program requirements.

      The compliance order should document the noncompliance and state  required actions to  be
accomplished by specific dates,  including interim and final reporting requirements.  In
drafting the  compliance schedule,  the Control  Authority should be  firm but reasonable.
taking into consideration all factors relevant to  an appropriate schedule duration.  For
example, if  the user must  install a complete pretreatment system, time should be allowed to
obtain the necessary construction permits, and  to design and construct the system.  However.
in such cases the Control Authority should require intermediate measures to ensure that the
user is making acceptable  progress.

      Once  these milestones are set. the Control Authority must track the user's performance
against them and escalate its enforcement response as needed. For example, the Control
Authority may order the user to show  cause for failing to meet a major milestone, impose a
additional  fine or initiate judicial proceedings.

      The utility of the compliance order as an enforcement response is illustrated by the
example shown in Figure 5-3.4 in which an order requires corrective nction to be undertaken
and sets out a series of penalties which are automatically triggered in the event that the
user fails to comply with the compliance schedule.

      •   Pay $2.500 for discharges of grease in  violation of the Control Authority's sewer
          use ordinance

      •   Pay $2.500 for failure to notify the Control Authority of the excessive grease

      •   Pay $25,000  for failure to construct and maintain  metering and sampling facilities
          (this fine was stayed, however, pending completion of the  system  by a specified

      •   Reimburse the Control Authority for all expenses,  loss and damage directly or
          consequentially caused by the violations

      •   Pay the full costs of the proceedings, including the technical, administrative, and
          other costs of the Control Authority in developing  its proof,  and attorneys' fees.
          in accordance with a sewer use ordinance provision authorizing these penalties.

Advantage  of the Compliance Order

      •   When confronted with a user not making good faith efforts to achieve compliance, the
          compliance order is an effective means of ensuring that necessary corrections are
          implemented   The Control Authority may design compliance schedules, set milestone
          dates, prescribe additional  or supplementary reporting requirements, or order the
          industrial user to achieve compliance by a certain date.

Disadvantage of the Compliance Order

      •   Without the user's  involvement,  the compliance schedule designed by the Control
          Authority may not be feasible.  Considerable time  and effort may  be required to
          enforce milestone dates and procedures that might  have been better spent negotiating
          the terms of a consent order.



                                  INAME  OF  CITY]
IN THE MATTER OF                   *
NAME OF INDUSTRY                  *           CEASE AND DESIST ORDER
ADDRESS                                *
                                LEGAL AUTHORITY
The following findings arc made ai\d order issued pursuant to the authority vested in the
Superintendent of Hasie\\-ater Services, under Section	of the City's Server Use
Ordinance.  Tim order is based on findings of violation of the conditions of the wasicwater
discharge pennii issued under Section	of the Grv '5 Sewer Use Ordinance.
/.     flndustryf discharges nondomestic u-asiewaier containing pollutants into the sanitar\-
      sewer system of the Grv of	.

2.     flndustryl is a "significant industrial user" as defined by Section	of the City's
      Stiver Use Ordinaiice.

3.     flndusiryl was issued a wastr\vater discharge permit on January I. 1988 which contains
      prohibitions, restnctions. and other limitations on the quality of the *aste\vater it
      discharges to the sanitary sever.

4.     Pursuant to  the ordinance and the above-referenced pennii. data is  routinely collected
      or submitted on the compliance status of {Industry/.

5.     This data shows that (Industry/ has violated the Srwrr Use Ordinance in the following

      a.    flndustryf has continuously violated its permit limits for copper and fine in each
           sample collected between January.  1986 and January. 1989

      b.    flndustryl Has also failed to comply with an administrative compliance order
           requiring the installation of a prttreannent system aitd the achievement of
           compliance with its permit limits by July  I. 1989.

      c.    flndusiryl has failed to appear ai a sho»- cause hearing pursuair to an
           requiring said attendance.

                                     FIGURE 5-3.1


/.   Within 24 hours of receiving this order, cease all nondomestic discharges into the
     City's sanitary- sewer.  Such discharges shall not recommence until such time as
     [Industry] is able to demonstrate that it will comply with its current permit limits.

2.   Failure to comply with  this order may subject /Industry] to having its connection to the
     sanitary sewer sealed by the dry. and assessed the costs therefor.

3.   Failure to comply with  this order shall also constitute a further violation of the sewer
     use ordinance and may  subject {Industry] to civil or criminal penalties or such other
     enforcement response as may be appropriate.

4.   This order,  entered this 12th day of August.  1989. shall be effective upon receipt by
                                                               Superintendent of Sewer Services
                                                               [City] Municipal  Building
                                 FIGURE 5-3.1  (Continued)


                           EXAMPLE CONSENT ORDER


                                  [NAME OF  CITY]
IN THE MATTER OF                  *
                                           *      SUPERINTENDENT OF SEWER SERVICES
NAME OF INDUSTRY                 *      ADDRESS
ADDRESS                               *
                                 CONSENT ORDER

WHEREAS, the dry of _ Division of Server Services pursuant to the powers, duties and
responsibilities vested in and imposed upon the Superintendent by provisions of the Cir\'s
Sewer Use Ordinance.  have conducted an ongoing investigation of [Industry I ai\d ha\-c
determined thai:

I .    The City wits and operates a wastwater treatment plant which is adversely impacted by
     discharges from industrial users, including (Industry!, and has implemented a
     pretreamient program to control such discharges

2.    /Industry} has consistently violated the pollutant limns in its \\-astewater discharge
     permit as set fonh in Exhibit I. attached hereto.

3.    Therefore, to ensure  that flndustryl is brought into compliance with its permit limits
     at the earliest possible date. fT IS HEREBY AGREED AND ORDERED. BETWEEN /Industry!
     _ , that [Industry] shall:

      a.   By July  15. 1989.  obtain the sen-ices of a licensed professional engineer
          specializing in \vaste\\-ater treatment for the purpose of designing a pretreatment
          system which will bring flndustryl into compliance  with its wastewater discharge

      b.   By September.  30.  1989. submit plans and specif cations for the proposed
          pretreatment system to the City for review.

      c.   By December 31 . 1989.  install the pretreatment system in accordance with the plans
          and specifications submitted in item b above
      d.   By January 15, 1989. achieve compliance MU/I the limits set forth in Exhibit  I.

      e.   flndustryl shall pay $ 1 .000 per day for each and nrrv da\ it fa;ls to comply with
          the schedule set out in items a-d above.  Tltc Si .000 per day penaln shall be paid
          to the cashier of the Division of Sewer Scrv/ro within 5 days of being demanded by
          the Grv.
                                     FIGURE  5-3.2

 4.    In the event flrtdusiry] fails to comply with any of the deadlines set forth. (Industry!
      shall, within one (It working day after expiration of the deadline, notify the City in
      writing.  This notice shall describe the reasons for [Industry/ "s failure to comply,  the
      additional amount of time needed to complete the remaining work, and the steps to be
      taken to moid future delays.   This notification in no way excuses (Industry/ from its
      responsibility to meet any later milestones required by this Consent Order.

 5.    Compliance with the terms and conditions of this Consent Order shall not be construed to
      relieve /Industry/ of its obligation to comply with us waste^-ater discharge permit
      which remains in full force and effect.  The dry reserves the right to seek any and all
      remedies available to it under Section _ of the City 's Sewer Use Ordinance for aity
      violation cited by this order.
 6.    Violation of this Consent Order shall constitute a further violation of the City's
      Use Ordinance and subjects (Industry! to all penalties described by Section _ of the
      Sewer Use Ordinance.

 7.    Nothing in this Consent Order shall be construed to limit any authority of the City to
      issue any other orders or take any other action which it deems necessary to protect the
      wastewater treatment plant, the environment or the public health and safety.

              Dale                                   Name
              Date                                   Name
                                                     Superintendent or Sewer Sen-ices
                                 FIGURE 5-3.2 (Continued)


                        EXAMPLE  SHOW CAUSE ORDER


                                  [NAME  OF CITYJ
IN THE MATTER OF                   *
                                            *            ADMINISTRATIVE
[NAME OF INDUSTRY]                 *
ADDRESS                                *            SHOW CAUSE ORDER
                                LEGAL  AUTHORITY
The following findings are made and order issued pursuant to the authority vested in the
Superintendent of Uastewater Ser\-ices. under Section	of the City's Server Use
Ordinance.  This order is based on findings of violation of the conditions of the waste^-atcr
discharge permit issued under Section	of the City s Scwcr Use Ordinance.
/.   (Industry] discharges nondotnesttc wastewatcr containing pollutants into the sanitan
          system of the dry of _ (hereafter.  "City"!
2.    flndustryj is a  "significant industrial user" as defined by Section _ of the City's
     Sr«rr Use Ordinance.

3.    flndunryl was issued a wastewater discharge permit on January  1 . 1988. which contains
     prohibitions, restrictions, and other limitations on the qualify of the waste\vater it
     discharges to the sanitary sewer

4.    Pursuant to the ordinance and the above-referenced permit, data is rou'inely collected
     or submitted on the compliance status of flnduxtry]

5.    77)15 data shows that [Industry] has violated its *-asiewater discharge permit in the
    following manner:

     a.   QnAtsiry] has violated its permit limits for copper and tine in eadi sample
         collected between January.  1 988. and January .  1 989. for a total of 24 separate
         violations of the permit.

     b.   flwtustryj has failed to submit a periodic compliance report due March 31.1 989.

     c.   All of these violations satisfy the City  s definition ot significant violation
                                     FIGURE 5-3.3


/.   Appear at a meeting with the Superintendent of Sewer Ser\'ices to be held on June  21.
     1989. at 2:00 p.m.. in room 211 of the Municipal Building.

2.   At this meeting, /Industry/ must demonstrate why the dry should not pursue a judicial
     enforcement action against /Industry/ at this time.

3.   This meeting will be closed to the public.

4.   Representatives of /Industry/ may be accompanied by legal counsel if they so choose.

5.   Failure to comply with this order shall also constitute a further violation of the Server
     Use Ordinance and may subject /Industry/ to civil or criminal penalties or such other
     appropriate enforcement response as may be appropriate.

6.   Tliis order, entered this I9lh day of May. 1989. shall be effective upon receipt by
                                                            Superintendent of Sewer Services
                                FIGURE 5-3.3 (Continued)


                        EXAMPLE  COMPLIANCE ORDER


                                  [NAME OF CITY]
IN THE MATTER OF                   *
                                            *            ADMINISTRATIVE
[NAME OF INDUSTRY]                 *
[ADDRESS]                               *            COMPLIANCE ORDER
                                LEGAL  AUTHORITY
Tlie following findings are made and order issued pursuant to the authorin vested in the
Superintendent of Waste\\-ater Services, under Section	of the dry's Sewer Use
Ordinance.  Tltis order is based on findings of violation of the conditions of the wastewatei
discharge pen-nil issued under Section	of the dry's Sewer Use Ordinance.
/.   Pnttuslryl discharges nondomcstic wasiewatcr containing pollutants into the sanitan-
     sewer system of the City of _ (hereafter.  "City").

2.   flrususiryl is a  "significant industrial user" as defined by Section _ of the dry's
          Use Ordinance.
3.    flndusiryj uus issued a wasteivater discharge permit on January  I. 1988. which contains
     prohibitions, restrictions, and other limitations on the quality of the wasmvater it
     discharges to the sanitary sewer.

4.    Pursuant to the ordinance and the abwe-referenced permit, data is rou'inely collected
     or submitted on  the compliance status of /Industry/.

5.    This data shws that {Industry] has violated its wasiewaier discharge permit in the
     following manner:

     a.   Pndustryl has violated its permit limits for copper and zinc in each sample
         collected btr*-eeit January, 1 988. and January. 1 989. for a total of 24 separate
         violations of the permit.

     b.   {Industry} has failed to submit all periodic compliance reports due since March 3 1 .

     c    All of these violations satisf\ the Cm 5 definition of significant violation

                                     FIGURE 5-3.4


 /.    Within 180 days, install pretreatment technology which will adequately treat
      {Industry] s wastewater to a level which will compl\ with its wasteu-aier discharge

2.    Within 5 days, submit all periodic compliance reports due since March 31. 1989.

3.    Within 10 days,  pay to the cashier's office of the Division of Sewer Services, a fine of
      $2.000.00 for the above-described violations in accordance with Section  	of the
      Sewer Use Ordinance.

4.    Report,  on a  monthly basis, the wastewater quality and the corresponding flw and
     production information as described on page 9 of the \vastewater discharge permit for a
     period of one year from the effective date of this order.

5.   All reports and notices required bv this order shall be sent, in writing, to the
     folloM'ing address:
                                    Pretreatment Coordinator
                                   Wastwater Treatment Plant

6.   This order does not constitute a \i-aiver of the wastewatcr discharge permit which remains in full
     force and effect.  The City of [Industry/ resents the right to seek an\ and all remedies
     available to  it under Section	of the Sewer Use Ordinance for any violation cited by this

7.   Failure to comply with the requirements of this order shall constitute a further violation of the
     sewer use ordinance and may subject flnduslryf to civil or criminal penalties or such otlier
     appropriate enforcement response as ntay be appropriate.

8.   This order, entered this 19th day of May.  1989. shall be effective upon  receipt by [Jnduslryl
                                                              Superintendent of Sewer Services
                                 FIGURE 5-3.4 (Continued)



                               5.4  CIVIL  LITIGATION
       Civil litigation is the formal process of filing lawsuits against industrial users to
 secure court ordered action to correct violations and to secure penalties for violation?
 including the recovery of costs to the POTW of the noncompliance.  It is normally pursued
 when the corrective action required is costly and complex, the penalty1  to be assessed
 exceeds that which the Control Authority can assess administratively or when the industrial
 user is considered to be recalcitrant and unwilling to cooperate.  The term "civil
 litigation" also includes enforcement measures which require involvement or approval by the
 courts, such as injunctive relief and  settlement agreements. Civil litigation is similar to
 criminal  prosecution in that it requires the full cooperation of the attorney and may result
 in court trials  of industrial users and assessment of penalties.  However, civil litigation
 is conducted for different purposes and requires a  less stringent burden of proof in order
 for the Control Authority to prevail.

 5.4.1  Legal Authority Necessary to Use Civil Litigation

       The General Pretreatment Regulations require the Control Authority to have legal
 authority to seek or assess civil (or criminal) penalties in at least the amount of Si.000 a
 day  for each violation by industrial users of pretreatment standards and requirements   If
 State law allows a greater award, the Control Authority should design its ordinance to allow
 it to seek more than $1.000.  Similarly, this Federal regulation  does not prohibit Control
 Authority from seeking or assessing penalties of less than $1.000 when lesser fines are
 appropriate (e.g.. for late submission of self-monitoring reports)

       The General Pretreatment Regulations also require the Control Authority to have legal
 authority  to seek injunctive relief for noncompliance by  industrial users with  pretreatment
 standards and requirements.   This authority must also be established in the sewer  use
 ordinance.  Some Control Authorities adopt ordinance provisions which authorize enforcement
 of environmental violations as "public nuisances."   The concept of "public nuisance"  is a
 civil cause of action which allows the Control Authority (if successful)  to recover costs
 associated with noncompliance and obtain  a court order  for abatement (a court order to halt
 activities judged to be nuisances).  "Public nuisances" affect an  interest common to the
 general public, and a typical example is the pollution of a stream.  However, ordinance
 provisions designating violations of the ordinance as  "public nuisances" do not serve as
 substitutes for the penalty authority required by Federal  law because  pretreatment
 violations required to be remedied through civil (or criminal) judicial actions may  not  be
 deemed "public nuisances "   For example, an  industry's failure  to provide authorized
 signatures for its self-monitoring reports may not affect the general public to  the degree
 necessary to establish a "public nuisance."

      For civil litigation to be an effective  response to noncompliance.  the Control
 Authority must both enact ordinance provisions which establish  all requisite legal authority
 and adopt procedures which facilitate its use. Many sewer use ordinances are deficient in
one or both of these respects.  The following are common legal authority or procedural
obstacles to the use of civil litigation as an effective enforcement response:

      o   Ordinance provisions which limit the availability of injunctive relief to discharge
          violations.  These provisions typically provide that the  Control Authority  may seek
          injunctive relief to halt or prevent discharges in violation of the ordinance.  To
          comply with Federal law, the Control Authority must  be empowered to seek  injunctive
          relief for nondischarge violations as well  (for example, if an industrial user
          refuses to allow Control Authority personnel access to  its facility, the Control

           Authority has authority to seek an injunction which requires the  user to submit to
           compliance inspections).

           Ordinance provisions which authorize civil penalties for  "intentional and negligent"
           violations only.  By linking civil liability to intent or negligence,  the Control
           Authority is forced to prove that the industrial user knew, or should have known.
           that it was violating the ordinance or its wastewater permit.  The  Clean Water Act
           designates that industrial  users are strictly liable for all pretreatment violations
           (see 33 U.S.C. 1319).  "Strict liability"  is a legal standard which means thai users
           are held legally responsible for noncompliance. regardless of intent or negligence.

           Ordinances which authorize civil penalties in inadequate amounts, (e.g.. of "not
           more than $50").  Civil fines  in these amounts have little deterrent value and may
           not allow the Control Authority to recover court costs associated with civil
           litigation.  As noted above, the Control Authority must have authority to seek
           penalties up to SI .000 (per violation per  day) and are encouraged to seek penalties
           in even greater amounts.   Several Control Authorities can seek Ones of up to $6.000
           per day per violation.

           Ordinance provisions which inadvertently insulate industrial users from  civil
           liability during the period following issuance of a notice  of violation.  These
           "grace periods" are created by ordinance language which: (1) requires  that the
           Authority notify' an industrial  user of its noncompliance: and (2i  allows  a
           noncompliant user a short period (e.g..  30 days) to correct the violation, after
           which the Control Authority may seek civil penalties.   Ordinance provisions which
           mandate this procedure prohibit the Control Authority  from  seeking civil penalties
           until the expiration of this "grace period  "
      A final procedural obstacle to effective civil litigation arises with  regard to
responsibility for its initiation on behalf of the Control Authority.  Frequently, whether
by ordinance-mandated procedures or unwritten policy, decisions to file suit are made by the
Control Authority's Board of Directors. City Council,  or Mayor.  While the decision to take
an industrial user to court cannot be made lightly. Control Authority officials more
directly involved in program implementation  may be in a better position to determine the
advisability of civil litigation, particularly in cases of routine violations or cost
recovery actions.   By delegating responsibility  for initiating civil litigation to the
chief executive responsible for operations and enforcement (e.g.. the Wastewater
Superintendent), the Control Authority ensures that this enforcement response will begin as
efficiently and as effectively as possible.

5.4.2  When  to Pursue Civil Litigation

      Civil litigation is an appropriate enforcement response in three general situations:
(I) emergency situations where injunctive relief is necessary to halt or prevent discharges
which threaten human health or the environment, or interfere with the  POTW: (2) when efforts
to restore compliance through cooperation with the industrial user have failed and a court
supervised settlement (consent decree) is necessary to enforce program  requirements: or (3)
to impose civil penalties and recover losses incurred due to the noncompliance.  Finally.
successfully concluded civil litigation helps to deter future noncompliance through
establishment of favorable judicial precedent. Since (in most instances) courts are bound
to follow established precedent,  successful cases encourage Control Authorities within the
same State to bring actions based on similar facts. In  addition, the awareness that
litigation is a viable enforcement option  will influence  industrial users to respond
promptly to less formal enforcement measures,  such as notices of violation or administrative

 orders.  Although the different types of civil  litigation are discussed separately below.
 they are frequently used in combination (e.g.. the Control Authority may seek an injunction
 to halt or prevent discharges while a civil enforcement suit is pending).

       One major concern with pursuing both civil and criminal enforcement is the applicable
 Statute of Limitations.   A Statute of Limitations restricts the amount of time the Control
 Authority will have to Initiate the law suit once it becomes aware of a violation.
 Generally this "litigation window" is 3-5 years (depending on State law) after which time
 the Control Authority will have forfeited its ability to pursue an action for that
 violation.  For example, if a slug load upsets the  wastewater plant,  the Control Authority
 may only have 3 years to file its suit to recover its costs and appropriate civil penalties.

 Consent Decrees

       Consent decrees are agreements between the Control Authority and the industrial user
 reached after a lawsuit has been filed.  To be binding, the decree must also be signed by
 the judge assigned to the case.  Consent decrees are used  when the violator is willing to
 acknowledge and correct the noncompliance and the Control Authority and the violator agree
 on the penalty. Such an agreement can be formalized prior to a full hearing on the issues.
 For example:

       •   A Control Authority in Okmulgee.  Oklahoma, negotiated a consent decree with an
          industry which required the industry to conduct training for its employees.
          undertake an  engineering study of its effects on  the Control Authority,  and  pay a
          civil penalty of $20.000.  In addition, the consent decree required  the City  to hold
          public  compliance meetings on a quarterly basis and revise the permitting provisions
          of its sewer use ordinance.

       •   A Control Authority in Green Bay. Wisconsin,  negotiated a consent decree with a meat
          packer which  included a stipulated  penalty of $25.000.  plus the City's costs  for the

       •   A Control Authority in Atlanta.  Georgia, negotiated a consent decree with a  steel
          mill requiring the  industrial user to install a pretreatment system and pay a
          stipulated penalty of $23.000. The decree contained an escalated penalty provision
          (the fine doubled)  for each subsequent violation. However, if the Industry achieved
          compliance within six  months, only one-half of  stipulated penalty was to be


       Injunctions are court orders which direct panics to do something  or refrain from doing
something.  The Control Authority should seek injunctive  relief if the delays involved in
filing suit would result in irreparable harm. The General Pretreatment Regulations require a
Control Authority to have authority and procedures to immediately and effectively halt or
prevent any discharge of pollutants which reasonably appears to present  an  imminent danger
to the hearth or welfare of persons.  If the Control Authority is empowered by its sewer use
ordinance to issue cease and desist orders (see Section 5.3 of this manual), it is unlikely
that injunctive relief will be necessary to halt or prevent the discharge.   However, if the
Control Authority does not have authority to issue AOs. or if the industrial user refuses to
comply with the cease and desist order, the Control Authority may be forced to seek
injunctive relief.

       Injunctions to halt or prevent discharges are usually temporary in nature (that is.
 they have a fixed expiration date).  Generally, they may be sought without prior notice to
 the  user.  However, the Control Authority may also seek injunctions which have permanent
 effect if the injunction is necessary to protect the POTW.  When the injunction sought is
 permanent in nature, the industrial user is given the opportunity to present arguments
 against the granting of the injunction.  Examples of permanent  injunctive relief awarded to
 Control Authorities are as follows:

       •  A Control Authority in Austin. Texas, obtained an injunction (as a term of a
          compliance agreement) which permanently enjoined an electroplater from violating any
          term or condition of its industrial waste ordinance, or any  provision of the user  s
          industrial waste discharge permit.

       •  A Sanitary District in California, obtained an injunction which  required a chemical
          company to disconnect a pipe which caused periodic spills  of formaldehyde.  The
          court also required the company to conduct additional self-monitoring, conduct spill
          prevention and response training for employees, and pay the Control  Authority
          531.901  in damages and $25.000 in civil penalties.

 Civil Penalties and Cost Recovery

       Civil litigation (i.e.. going to trial)  may be necessary to recover costs associated
 with noncompliance and to impose civil penalties.  For example, if an industrial user
 releases a slug load into the collection system, the discharge could:

       •  Upset the treatment works (which must be restored) or damage the collection system
          (which must be repaired)

       •  Cause  physical harm to Control Authority personnel  (personal injury)

       •  Require the Control Authority to conduct special monitoring activities to trace the

       •  Cause  the Control Authority to  violate its NPDES permit (which may. in turn, result
          in fines assessed against the Control Authority by EPA or the State).

       A successful civil  suit may force the industrial user to pay for all such expenses
 which the Control Authority incurred in responding to the non-compliance, including
 restoration of  the Control Authority's physical plant, payment for medical treatment of
 injured employees, and indemnification of the Control Authority for all fines assessed
 •gainst it for NPDES permit violations.

       Even in situations where a noncompliant discharge has not caused actual  damage to  the
 Control Authority, the prospect of civil penalties (in conjunction with adverse publicity
 and  injunctions against future violations) and the costs associated with defending civil
 suits may be sufficient to convince potentially  noncompliant industries that no alternative
exists to consistent compliance.  Since amounts recoverable as administrative fines are
 likely to be less than those imposed as civil penalties, the Control Authority may be forced
to sue users to recover penalties of appropriate severity.

      Control Authorities have found civil litigation to be an effective means of enforcing
pretreatment program requirements.  For  example, in January 1988.  a Control Authority in
Utah was awarded a judgment of S32.876 in damages (for copper  and lead violations) and  a

 civil penalty of $125.000   The following are additional examples of successful civil

       •  A Control Authority in Baltimore. Maryland, was awarded $114.000 in civil penalties
          from an electroplater.

       •  A Control Authority in Sunnyvale. California, successfully sued an electroplater and
          obtained an injunction to compel the industry to submit a spill prevention plan and
          to improve its pretreatment system.

       •  A Control Authority in Orange County. California, obtained  civil penalties of
          $10.000 and an injunction against a noncompliant electroplater requiring the

              Installation of a pretreatment system within 180 days

              Installation of an automatic shut off valve (for the discharge) accessible to the
              Control Authority

              Increased self-monitoring frequency (weekly)

              Distribution of a letter to all other industrial users acknowledging illegal

 5.4.3  How to Pursue Civil  Litigation

      To make an  informed decision on the advisability of civil litigation, the Control
 Authority must understand the legal procedures involved in preparing a lawsuit.  These
 procedures include identification  of parties to be named as defendants in the complaint and
 the relief to be requested from the court. In addition, the Control Authority must be
 prepared to cooperate with the industrial user during the "discovery" process (i.e., the
 pretrial investigation and exchange of information between the parties).   The remainder of
 this section addresses these concerns.  The Control Authority is cautioned that what follows
 is an oven iew and is not intended  to substitute for full  consultation with the Control
 Authority's attorney.

 Preliminary Decisions

      Once a Control Authority decides to pursue litigation, several choices must be made
 regarding:  (I) parties to be sued: and (2) relief to be requested.

Who to Sue? At first glance who to sue (i.e.. who to name as defendant in  the complaint
filed on behalf of the Control Authority) appears obvious:  the industrial user.  However.
for purposes  of determining liability, the user's corporate identity may not be readily
apparent. For example:

      •   If the facility  is operated by a contractor: should the suit  name  the owner of the
          facility, the operator under contract to the owner to manage the premises, or both0

      •   If the facility  is owned  by a corporation: should the suit name the Board of
          Directors, the shareholders,  the corporate officers, the corporation itself, or all
         of these parties?

       •   If the facility is owned or operated by a partnership: should all of the partners he
           named or only those with direct responsibility for the industry's compliance status9
 The Control Authority's attorney can  help to identify the correct parties, but he or she
 will require the assistance of pretreatment personnel who have First-hand knowledge of
 persons responsible for the industry's compliance status.

       As a general rule, the  Control Authority should  name all "appropriate" parties in the
 complaint and allow the liability of each to be determined through the litigation process.
 If the industry is an office or agency of the local government (e.g.. a print shop or
 vehicle maintenance station), the Control Authority may elect to enforce its program
 administratively by alerting the City's elected officials and issuing appropriate AOs.
 However, the Control Authority should not refrain from  pursuing litigation if it is the
 appropriate response under the criteria provided above.

 What to Sue For?  In the formal complaint which the  Control Authority (as plaintiff) files
 with the court, it must ask for the specific relief to which it is entitled under State law
 and its sewer use ordinance.  In consultation with  its attorney, the Control Authority-
 should determine in advance  of trial: (1) the provisions of its sewer use ordinance and/or
 wastewater permit which the user has allegedly violated:  (2) the amount to seek as recovery
 of damages (including spill response expenses, additional compliance monitoring costs.
 attorney's fees, court costs, and reimbursement of any  fines levied upon the Control
 Authority for  NPDES violations): and (3) whether  to seek civil penalties and the appropriate
 amounts of these penalties. Since it is unlikely (and may be impossible) that the Control
 Authority will be awarded a greater sum  in damages and penalties than it seeks in the
 complaint, the maximum amount of civil penalties allowed under  the ordinance should
 routinely be sought.  For instance, if the sewer use ordinance provides that  civil penalties
 of up to SI .000 may be recovered per violation per day and the industry  has violated 4 of
 its wastewater permit conditions SO times within the applicable Statute of Limitations, the
 Control Authority  should seek $200.000 in penalties.

 The Basic Process

       Having made these preliminary decisions, the Control Authority can now proceed to file
 its lawsuit.  The length of time necessary to conclude the entire litigation process (from
 the filing of the complaint to the collection of damages and  penalties following a favorable
 verdict) will vary from case to case.  A full trial may take 6 to 12 months to conclude.
 However, the Control  Authority  may always reach a settlement agreement with the industrial
 user prior to (or during) the trial.

       Figure 5-4.1 depicts the litigation process, which begins when the Control Authority
 decides to file, through its legal counsel,  a complaint against the industrial user.  The
 complaint contains a brief statement of the user's pretreatment obligations, a short
 description of the alleged violations and a request for specific  relief from the court.   The
 industrial user then responds  to the complaint  by filing a answer which admits or denies
 each of the Control Authority's allegations.  Taken together, the complaint and the answer
define the issues to be contested it trial.

      Once the complaint and answer are filed with the court, a date for trial is set.
 Before the trial begins, both sides prepare their cases by  collecting information which may
 be in the possession of the other party and by  interviewing witnesses which the other party
 intends to call. This process, called "discovery." allows  each side to become familiar with
all evidence likely  to be used  in court: and is  intended to encourage settlements and
prevent either party from gaining an unfair  advantage.  As part of the  discovery process.

Control Authority Decides to Sue Industrial User to
Recover Costs, Seek Civil Penalties, and Corrective

Control Authority Files Complaint Alleging
Pretreatment Violations (Ordinance or Permit)

Industrial User Files Answer Admitting or Denying

Trial Date Set

Discovery Process Involving  Control Authority and
Industrial User
                    / If Successful = Consent Decree
Settlement Negotiations
                    ^ If Unsuccessful = Proceed to Trial


              If Industrial User Held Liable,
        ^^  Court Awards Cost Recovery
Verdict       and/or Civil Penalties

              If Industrial User Not Held Liable,

                   FIGUKE 5-4.1

 Control Authority employee? may he called upon to provide depositions (oral or written sworn
 statements): answer interrogatories  (written questions which must he answered in writing and
 under oath): or respond to requests for production (requests hy the industrial  user to
 produce and allow inspection and copying of any designated documents, such  as writings.
 photographs, recordings or data compilations).  Similarly,  the industrial user  may he
 obligated to provide the Control Authority with all of  its self-monitoring records and to
 submit to interviews by the Control Authority's attorney.

       In addition to cooperating with attorneys for the industrial  user during the discovery
 process. Control Authority personnel may also be involved in trial preparation through
 creation of visual evidence for its own  attorney to use in court (such as photos.
 videotapes, diagrams, or models which illustrate the POTW's operation and the effects of
 unauthorized industrial discharges).  Other pretrial tasks include  assisting the  attorney in
 preparing for cross-examination of the  industrial user's witnesses.

       If the litigation involves numerous and complex issues, the trial  judge may request a
 pretrial conference with the Control Authority and the industrial user to narrow the range
 of issues to he contested at trial and to encourage an amicable settlement of the conflict.
 These pretrial conferences provide another opportunity for  the negotiation of a consent

       Assuming the Control Authority  does not agree to drop the case  or enter into a consent
 decree, the case  proceeds  to trial.  The trial is held before  a jury  or a  judge sitting
 without a jury (at the  request of the defendant).  The  Control Authority, as plaintiff.
 presents evidence to prove the industrial user's noncompliancc. including the  testimony of
 Control Authority officials as expert witnesses

       If the violations in question were delected through the Control Authority's compliance
 monitoring program, the Control Authority must present evidence of the validity of these
 results.  For example, the Control Authority may have to demonstrate  thai its  wastewater
 samples were properly collected, stored, and analyzed: and that its equipment  was  adjusted
 and  in good working condition.  Assuming that the Control Authority has documented its
 activities well and has used chain-of-custody procedures to  show that samples were not
 tampered with or incorrectly identified, it should be able to authenticate its results.

       If the violations were disclosed through data contained in industrial user
 self-monitoring reports, the Control Authority  normally will not have to prove the
 violations by independent means.  If the user's self-monitoring  reports  were properly signed
 and  their accuracy certified to by an authorized representative of the user a decision
 favorable to the Control Authority is likely.  However, the  Control Authority should, as a
 matter of policy,  conduct independent sampling and analysis whenever  ordinance or permit
 violations are disclosed in  industrial user self-monitoring reports.

      At the conclusion of the Control  Authority's evidence, the industrial user presents  its
 defense. A verdict is then issued on the extent (if any) of the user's liability, its
 responsibility for cost  recovery, necessary corrective action, and the amount of civil
 penalties assessed against it.   If found liable, the industrial  user may appeal  the
judgment: if the industrial  user is judged not liable, the Control Authority may appeal  the
 findings.  For appeals to be successful  (by either party), the appealing  parry (appellant)
 must prove  that an error was  made at trial and that this error was severe enough to warrant
a reversal of the verdict, a reduction in the amount of damages  and  penalties awarded, or a
new  trial.


                         5.5   CRIMINAL PROSECUTION
       Criminal prosecution is the formal process of charging individuals and/or organizations
 with violations of ordinance provisions that are punishable, upon conviction, by fines
 and/or imprisonment. The purposes of criminal prosecution are to punish noncompliance
 established through court proceedings and to deter future noncompliance.  Criminal offenses
 are traditionally defined as either felonies or  misdemeanors.  Under Federal law. felonies
 are offenses  punishable by death or imprisonment for a term exceeding one year.  Examples of
 environmental crimes characterized as felonies under  the Clean Water Act are knowing
 violations of the Act and knowing endangerment of human  health.  Knowing violations of the
 Act are punishable by fines up to $50.000 per day of violation, imprisonment for up to 3
 years, or both: knowing endangerment (placing another person in imminent danger of death or
 serious bodily injury) is punishable by fines up to SI .000.000 (in the case of a
 corporation), imprisonment of up to 15 years, or both.  Fines and  prison sentences  under the
 Act are doubled for second offenses.

       Federal law defines misdemeanors as offenses other than felonies.  Misdemeanors are
 generally punishable  by fines of up to $1.000 or imprisonment for less than  I  year. Most
 offenses punishable under local  sewer use ordinances  such  as tampering with monitoring
 equipment, falsifying self-monitoring reports, or failing to report illegal discharges are

       There  are two elements to a crime: (I) an act in violation of the law; and (2)
 criminal intent. Acts which might themselves be characterized  as "criminal"  may not  result
 in prosecution  if the prosecutor cannot prove intent  or criminal negligence.  In other
 words, the industrial  user either must have intended to break the law  or was so indifferent
 to the  nature and implications of its act that it could be deemed criminally negligent.
 Unless a prosecutor can prove both of these elements, criminal prosecution is nol a  viable
 enforcement  option.   Figure  5-5.1 illustrates the differences between civil litigation and
 criminal prosecution.

 5.5.1   Legal Authority  Necessary to Use Criminal Prosecution

      To successfully use criminal prosecution as an enforcement tool, the Control Authority
 must enact and maintain  legal authority adequate lo  satisfy Federal and State constitutional
 standards of fairness and due process.  Since its powers regarding criminal enforcement  are
 delegated by  State law. the Control Authority  should review State statutes authorizing local
 governments  (and their agencies) to levy fines and impose prison sentences.  If the
 ordinance provision authorizing criminal  penalties does not  specify  fines or prison terms
 but rather refers to a  standard scheme of criminal penalties  (e.g.. "Class B misdemeanor")
the applicable fine and prison term are predetermined  by this classification system.  It  is
also noted that some Control Authorities such as Regional Sewage Authorities may not  have
 any access to criminal prosecution under State law.  A comprehensive review of these
 statutes should be completed before the Control Authority revises the criminal penalty
provision(s) of its ordinance. The Control Authority should consult its attorney regarding
all legal authority issues and interpretations of State  and local law.

      The provision(s) of a ordinance authorizing criminal  penalties for ordinance violations
must be clearly identified as criminal penalties.  If the ordinance contains a penalty
provision under the heading "penalties" or "civil penalties"  but the substantive provision
contains the phrase "upon conviction." the nature of the proceedings  so authorized max be
unclear and criminal prosecution may be unavailable.

                  Significant Violation
Evidence of Noncompliance
POTW Damage
- Physical
- Emergency Expenses
- NPDES Fines
NPDES Violation
Continuing Violation
   Evidence of Willfulness
   Evidence of Negligence
   Bad Faith Shown by
   Industrial User
   SUO Only Provides for
                     FIGURE 5-5.1

 Other Elements of Legal Authority

       A comprehensive evaluation of legal authority requirements must also include relevant
 Federal and State criminal procedure case law.  Constitutional requirements change as courts
 decide particular cases. The Control Authority and its legal representatives must stay
 informed of these developments to ensure the admissibiliry of evidence prepared for use in
 criminal prosecutions. Control Authority employees may therefore wish to request briefings
 on criminal procedure from the Control Authority attorney.

 Types of Environmental Crimes

       The Control Authority should ensure that its ordinance provisions authorizing criminal
 penalties are broadly written. The "criminal penalties" provision should authorize criminal
 prosecution for willful or  negligent:

       •   Violations of the ordinance

       •   Violations of sewer connection permits or industrial wastewater discharge permits
          (such  as construction of unauthorized connection points, discharges in excess of
          permit limits, or failure to submit self-monitoring reports)

       •   Violations of administrative orders issued to implement pretreatment program
          requirements (such as orders to cease and desist illegal discharges or  show cause

       •   Violations of regulations which implement general grants of authority  in  the

       •   Failure to notify the Control Authority of unauthorized discharges (such as slug
      Violations which continue for more than one day must be deemed separate and distinct
offenses to preclude defense arguments based on double jeopardy (discussed in Section 5.5.5
below) and to maximize the fines recoverable due to noncompliance.  A provision prohibiting
the falsification of records and/or monitoring equipment should also be adopted.  It may
read as follows.

      Any person who knowingly makes false statements,  representations or certifications In
      any application, record, report, plan or other document filed or required  to be
      maintained pursuant to this ordinance, or wastewater contribution permit, or who
      falsifies, tampers with,  or knowingly renders inaccurate any monitoring device or
      method required under this ordinance, shall, upon conviction, be punished by a fine of
      not more than one thousand dollars ($1,000) or by imprisonment for not more than six
      (6) months, or by both.

Other Related  Crimes

      Noncompliance may also be prosecuted under ordinance provisions not directly related to
environmental protection.  For example, industry employees  who alter monitoring reports and
tamper with sampling equipment  may be charged with conspiracy to commit crimes. In 1980. an
industry in Philadelphia. Pennsylvania, was successfully prosecuted for theft of sewer
services and conspiracy.  The plant superintendent pleaded guilty to charges (brought under
the Pennsylvania State Code) that he conspired with other employees to tamper  with water

pollution monitoring equipment and to dilute wastewater samples.  Similarly, in the County
of Los Angeles. California, unintentional and inadvertent hazardous waste dumping has been
successfully prosecuted under general provisions prohibiting "unlawful business practices."
Another jurisdiction has successfully prosecuted industry officials for the death of an
employee under a homicide (murder) statute.  The Attorney General of Illinois charged that
the victim was killed by exposure to hydrogen cyanide in the company's suburban Chicago
plant.  Three company officials (the former president, the plant supervisor, and the plant
foreman) were convicted of murder and the corporation was convicted of involuntary man-
slaughter.  These examples illustrate the variety of criminal offenses which may be
prosecuted in conjunction with environmental violations.

5.5.2  When To Use Criminal Prosecution

      Criminal prosecution is appropriate when the Control Authority has evidence  of
noncompliance which  shows criminal intent; it is recommended in cases  involving repeated
violations, aggravated violations (such as discharges which  endanger the health of treatment
plant employees), and  when less formal efforts to restore compliance (such as notices of
violation and AOs) have failed.  Criminal prosecution may  be brought prior to. concurrently
with, or subsequent to civil litigation.

      Although civil litigation and criminal prosecution are not mutually exclusive (e.g..
prosecutors  may seek injunctions in civil proceedings while preparing or prosecuting
criminal cases), evidence that the named defendant(s) committed an illegal act with criminal
intent must be present before an indictment is sought.  When evidence sufficient to  indict
and convict  is present, other factors may lead  the Control Authority to try different
enforcement tools before initiating criminal prosecution.  Examples of these mitigating
factors include prompt and complete disclosure of the noncompliance and good faith efforts
at cooperation with the Control Authority in trying to restore compliance  (such as
voluntarily installing pretreatment equipment or exceeding compliance schedule require-
ments). Likewise,  efforts to conceal the scope and extent of violations or to mislead
investigators should be fully examined when deciding whether to proceed with criminal

      Because of the presumption of innocence in criminal trials, prosecutors (with the
support of Control Authority employees) must determine if  each element of an offense can be
proved  The presumption of Innocence means that the defendant industrial user does not have
to prove its innocence.  Unless the prosecution convinces the jury (or judge, if the
defendant waives a jury trial) that an illegal act was performed with criminal intent,  the
defendant will be acquitted  Unless there is strong evidence of noncompliance. the
prosecutor may exercise discretion and decline the case.  Since weak enforcement actions
could actually encourage noncompliance (by destroying the rationale/credibility of
deterrence), the ability of Control Authority officials to convince prosecutors to take the
case may itself be an accurate indication of whether criminal prosecution is appropriate.
Evidence of Crimes

      Evidence of Criminal Act -  Pretreatment defendants fall into two general categories.
The first category includes industries which ignore the pretreatment program by disposing of
wastes without authorization, frequently referred to as "midnight dumpers."  The County of
Los Angeles. California, has criminally prosecuted industrial users for a variety of
environmental offenses: in 1986. one user pleaded guilty to 54 counts of discharging without
a permit and was fined $100.000 (plus $28.000 in costs).  Another user pleaded guilty to
hazardous waste disposal and transportation violations and was ordered to pay a criminal
penalty of $400.000 plus costs.  Evidence necessary to convict such defendants consists of

 discharge samples, witnesses to the dumping, testimony from employees of the defendant.
 discharge record? (or satisfactory explanations for their absence), and soil/water samples
 of the areas where the discharge/dumping occurred.

       The  second category of defendants includes industries which misrepresent or conceal the
 extent of pollutants which they discharge, allow their pretreatment technology to
 deteriorate  through neglect,  or fail to prevent anticipated spills.  To convict these
 defendants. Control Authority officials must establish three factors:  I) that records were
 inaccurate representations of a user's processes or discharge constituents (because of an
 intent to mislead or negligent preparation): 2)  that pretreatment technology was lacking.
 outdated, or poorly maintained: and (3)  that spills were intentional or could have been
 prevented had adequate safeguards been  in place.  On-site inspections, independent sampling.
 and records examination will be necessary to prove these violations.

       Evidence of Criminal Intent - Assuming admissible evidence of a criminal act exists.
 the Control Authority must address the additional requirement of criminal intent or
 negligence.  There are two fundamental  types of intent in environmental crimes:  general
 intent and specific intent.  General intent means intent to do an  act. such as intent to
 release a pollutant loading (a voluntary act rather than an accidental act).  Specific
 intent means intent to break  the law such as intent to release a loading certain to pass
 through the POTW.

       If the prosecutor cannot prove an  industrial user intended to perform the act which
 produces criminal liability (for example, a pass through discharge released accidentally.
 but which should have been  contained by adequate spill prevention measures), the case may be
 brought under negligence theory.   Criminal negligence means reckless indifference to the
 possible consequences of an  act (such as releasing a discharge without knowing its
 constituents when the user could or should have possessed such  knowledge).

      The Clean Water Act and similar  State laws generally do not require proof of specific
 intent to break the law.  The Clean Water Act uses the term "knowingly" to describe the
 element of intent in criminal violations.  A Federal court has held that  the Act:

      [IJs not the type of criminal statute which requires the government to prove the
      defendants specifically intended  to violate the statute.  To sustain a conviction .  . .
      It Is necessary  only that the defendants acted willfully or negligently and that they
      Intended  to do the acts for which they were convicted.  In order to convict. It Is not
      necessary that the defendants Intended to violate the law.
      In some situations, plant employees do not know (or have not been told) constituents of
the discharges they are releasing.  Similarly, management or upper level corporate
personnel, such as the chief executive officer or members of the Board of Directors may not
have personal knowledge of illegal acts (such as illegal discharges) because of the
organization's structure. In these cases, it may be impossible to prove specific intent and
prosecutors can only seek indictments and convictions  based on criminal negligence. If
defendants are careless to the point of recklessness or deliberately remained ignorant of
the facts to avoid responsibility, they may be prosecuted under criminal  negligence
provisions.  These provisions ensure that enforcement  is available when industrial  users
purposefully shield themselves from incriminating knowledge.
    United State? vs. Frezzo Brothers. Inc.. 546 F. Supp at 713.  (E.D. Pa.  1982).  affd. 703
    F.2d 62. (3d Cir.).  cert, denied. 464 U.S.  829 (1983)

 5.5.3  How To Use Criminal Prosecution

       Since an industrial user may be imprisoned as a result of criminal prosecution, the
 Control Authority must observe all Federal and State constitutional requirements of criminal
 procedure such as protections against unreasonable search and seizure (inspections).
 privileges regarding self-incrimination (self-monitoring data), the defendant's rights to
 trial by jury and to confront adverse witnesses, and protections against double jeopardy.
 These constitutional rights remain  applicable if prosecutors seek only monetary fines  (in
 lieu of prison terms) in criminal trials of defendants which are organizations.

       The criminal  prosecution process can be organized into the six steps shown on Figure
 5-5.2.  Each step is outlined below.

       Step One - Dtocovertot the Crime.  Criminal prosecution begins when Control Authority
 officials believe crimes have been or sre about to be committed.  This belief must have some
 foundation In fact.  For example, a Control Authority official must have  personal knowledge
 or trustworthy information from  an informant regarding the crimes. This information may
 result from routine inspection and  monitoring activities conducted by Control Authority'
 officials,  observations by citizens groups, incriminating reports from industrial  users, or
 interviews with potential defendants and  informants.

       Step Two - Gathering Evidence.  The Control Authority must gather evidence of
 noncompliance which will  be admissible in a criminal trial.  Investigating officials must
 act immediately upon receiving information about violations since  incriminating evidence may
 be destroyed.  When gathering this evidence,  the Control Authority must observe the
 constitutional protection against unreasonable  searches and  seizures guaranteed under the
 Fourth Amendment.  Materials seized during  an  unreasonable search is  inadmissible (i.e.. it
 cannot be used in court to prove a  law was broken).  To ensure that all necessary evidence
 may actually be used against defendants  in court. Control Authority officials may wish to
 solicit the assistance of the local police department and obtain search warrants before
 entering the  industrial user's premises.

       Step Three - Initiating Criminal  Prosecution.  Formal criminal prosecution begins when
 Control Authority officials  bring evidence of noncompliance to the prosecutor and  consensus
 Is reached to seek an indictment.  Initially, the prosecutor  must decide who to name as
 defendant(s)  in the indictment.  If the potential defendant is an individual, this is a
 relatively simple decision.  If the potential defendant is a franchise, limited partnership.
 or partnership, the prosecutor must choose whether to name the organization, the  responsible
 officials, or both. If the potential defendant is a corporation, the prosecutor must
 resolve a procedural dilemma:  corporations are artificial legal entities  which can act only
 through agents/employees.  If non-managerial employees have tampered  with sampling
 equipment, the prosecutor  must decide whether to name the employees in question, their
 supervisor(s). or all  corporate officials administratively responsible for  compliance with
 environmental laws.

      The prosecutor then requests a grand jury  whose sole purpose is to determine whether
 enough evidence exists to try particular defendants for specific crimes.  If the prosecutor
 proves to the grand jury that a crime has been committed and that the named defendant(s)
 should be put on trial, indictments  are handed down against the defendant.

      Step Four - Pretrial Options.  After being named in the indictment issued b\ the grand
jury,  the defendant is arraigned (brought before a judge to plead to the criminal charge in
 the indictment).  If the defendant pleads  guilty to the charge(s) in the indictment, a
 sentencing hearing is scheduled.  If the defendant pleads not guilty, a trial date is set.


1.  Control Authority Receives Information of Criminal

2.  Control Authority Gathers Evidence of Criminal

3.  Control Authority Takes Evidence to Prosecutor

    Prosecutor Seeks Indictment  of Industrial User

    Grand Jury  Indicts Industrial User

4.  Defendant Pleads  to Criminal Charges in Indictment
    -  If Pleads  Guilty, Sentencing Hearing Scheduled
    -  If Pleads  Not Guilty, Trial Date Set

5.  Criminal Trial

    Verdict Issued

6.  Sentence Pronounced

    Defendant Appeals
    -  If Successful, New Trial or Reduced Sentence
    -  If Unsuccessful, Sentence is Served

                       FIGURE 5-5.2

 Depending on the strength of the evidence, the prosecutor may offer the defendants a plea
 bargain.  In  exchange for a plea of guilty (which is a waiver of the  right to trial by
 jury), the prosecutor may indict the industrial user on a lesser charge (e.g.. reduce felony
 charges to misdemeanors), seek reduced sentences, or drop the charges altogether.  For
 example,  to provide an incentive to full cooperation,  the prosecutor  may offer immunity to
 defendants willing to testify against other defendants.

       Step Five - The Criminal Trial.  Persons accused of criminal offenses have a
 constitutional right to trial by jury.  However, defendants may waive this right and request
 that the judge rule on the defendants guilt  based on the evidence presented.  At the trial.
 each side may present evidence, call  witnesses, question the evidence, and cross-examine the
 witnesses of  the other side. At the conclusion of the trial, a verdict is issued. If the
 defendant is  acquitted, the charges are dismissed, and according to the Fifth Amendment, the
 defendant may not be tried a second time (double jeopardy) for that  particular offense.

       As  noted  in Section 5.S.2, however, separate permit violations (for example, illegal
 discharges on successive  days) are separate offenses. Therefore, double jeopardy  does not
 prevent the Control Authority from trying the same industrial user for subsequent Illegal
 discharges of an identical nature.  Additionally, double jeopardy only applies to trials by
 the same jurisdiction. The Control Authority may  therefore seek a criminal trial in a local
 court if the industrial user was acquitted in Federal court.  However, municipalities and
 the States in  which they are situated are not different jurisdictions, so industrial user;
 acquitted in local couris may not be tried in Stale courts for the same offense.  For these
 reasons,  local prosecutors must charge defendant industrial users with all possible
 ordinance and State code  violations, both felonies and misdemeanors, arising from particular
 illegal event(s).  and be extremely cautious  when waiving counts of an indictment for plea
 bargaining purposes.

      Step Six - Sentencing and Appeal.   If the defendant industrial user is convicted, it
 may receive a fine, a prison sentence, or both.  However,  the fines  and/or prison  terms may
 be suspended (not required to be executed  at time of sentencing). If  the industrial  user
 takes the desired corrective action(s) or agrees to make other good faith efforts to achieve
 compliance.  Depending on State law. sentences may be handed down by juries or judges.
 Courts may also authorize alternative sentencing, that is. sentences other than fines or
 imprisonment, such as community service  or educational projects.

      Defendants may appeal  convictions on all counts or choose to appeal one or more counts.
The appeal itself may challenge the verdict, the sentence, or both.  To successfully appeal.
the defendant industrial user must prove that there were  mistakes made at trial and that
these mistakes were severe enough to justify a reversal of the verdict or a new trial
altogether. The prosecution's right of appeal is extremely limited in criminal cases. The
prosecution may only appeal when  a second trial is not necessary to  resolve the issue on
appeal. For  example. If the jury finds the  defendant  guilty but the judge sets aside the
verdict as  a matter of law, the prosecution may appeal since the appellate court will either
affirm the action of the trial judge, thus ending the matter, or overrule the judge and
reinstate the jury's verdict.  In either case, a second trial is not necessary

5.5.4 Advantages and Disadvantages of Criminal Prosecution

      There are several advantages to the use of criminal prosecution as an enforcement tool:

      •   Criminal prosecution  is a strong  deterrent to noncompliance. While the  impact of
          fines on individual and corporate defendant; mav be lessened by  passing on cost?  to
          the public (through  increased prices for good? and services), thr prospect of
          serving time in  prison and the stigma of having a criminal record encourage industry

    managers to develop a sense of personal responsibility for compliance   Prison
    sentences cannot be rationalized as "costs of doing business."

 •  By closely cooperating with city attorneys and the local judicial system,  the
    Control Authority' can maintain a credible threat of criminal enforcement.

 •  Criminal prosecution generates publicity which  is generally beneficial to the
    Control Authority and adverse  to the violator.

 •  Criminal prosecution deters industrial  users from testing the boundaries of a
    Control Authority's enforcement program.

 There are also disadvantages to the use of criminal  prosecution:

 •  The Control Authority must sustain a higher burden of proof to secure criminal
    convictions  than to impose civil penalties or administrative fines   The term
    "burden of  proof" is a legal concept which means the necessity of proving facts in
    dispute.  The burden of proof in a criminal trial is "beyond a reasonable doubt."
    This means that the prosecutor must prove every element of a crime beyond a
    reasonable doubt.  Given that environmental  crimes by definition  involve highly
    complex subject matter, this is  a formidable task for the prosecutor. If the defense
    effectively rebuts prosecution evidence on a single element, the industrial user is
    entitled to an acquittal.

•   Criminal prosecution  is resource intensive.  It is expensive, time consuming, and
    uncertain of result.  Local  police  forces and courts may be reluctant to divert
    scarce resources from violent crime to the prosecution of environmental crime.

•   Control Authority officials  must relinquish control of the case.  Unlike using
    administrative or civil remedies. Control Authority officials must relinquish
    control (and responsibility) for  the case to the prosecutor.

•   With corporate  defendants, it is difficult to establish  personal responsibility for
    environmental crimes sufficient to impose criminal sanctions on individuals


                 5.6   TERMINATION OF SEWER  SERVICE
       Termination of service is the revocation of an industrial user's privilege to discharge
 industrial wastewater into the Control Authority's sewer system.  Termination may be
 accomplished by physical severance of the industry's connection to the collection system, by
 issuance of an AO which compels the user to terminate its discharge, or by a court ruling.
 However, since termination of service may force industries to halt production and may force
 closure (if discharge privileges are not reinstated), the Control Authority must carefully
 consider all of the legal and operational implications of termination before using this
 enforcement response.

 5.6.1  Legal Authority Necessary to Terminate Service

       According to the General Pretreatment  Regulations, the Control Authority must have
 legal authority to immediately and effectively halt or prevent any discharge of pollutants
 to the POTW which reasonably appears to present  an imminent endangerment to the health or
 welfare of persons, or to the environment, or which threatens to interfere with the POTVV's
 operation.  The Control Authority must ensure that it incorporates clear authority to
 terminate service by physical severance, cease and  desist order, or both, in its sewer use

       Regardless of which method is chosen to terminate sewer service, the Control Authority
 should have procedures to accomplish termination of service in its enforcement response plan
 or in its ordinance.  For example, in El Paso, Texas, the sewer use ordinance  reads:

      Six violations in any time  period shall be cause  for the sewer service to be
      disconnected . . . Sewer service will not  be restored for a property  until sufficient
      evidence is presented to E.P.A. and El Paso Water Utilities that adequate facilities
      have been Installed to Insure that there will be no recurrence of violation of Public
      Sewer Sen-ice Board or E.P.A.  Rules and Regulations.
      Another example of a sewer use ordinance that clearly establishes authority to
terminate service is that of a Municipal Water District in Southern California, whose
ordinance provides that the General Manager may terminate sen ice to any industrial user
violating the ordinance or its industrial  user discharge permit.  The ordinance also defines
the General Manager as the General Manager of the Municipal Water District or his deputy.
agent, representative, or inspector.  For an additional example of ordinance language, see
Chapter 3 of this guidance.

      These examples confer clear authority to terminate service upon the Control Authority.
However, not all ordinances are adequately drafted and many contain  obstructions which delay
or limit the use of this enforcement response.  Some examples of provisions which interfere
with effective termination of service are:

      •  Reserving the authority  to terminate service to the City Council. Mayor, or similar
         high-ranking official(s)

      •  Requiring a City Council or similar body to  convene a hearing before a cease and
         desist order may be issued

      •  Only allowing the Control Authority to terminate service by seeking a court order
         for injunctive relief (i.e.. a temporary restraining order or preliminary

 5.6.2  WTien to Terminate Service

      Termination of service is an appropriate response to industries which  have not
 responded adequately to previous enforcement responses.  When the Control Authority must act
 immediately to halt or prevent a discharge which presents a threat to human health, the
 environment or the POTW. cease and desist orders and termination of service are the only
 appropriate responses.  Unlike civil and criminal proceedings, termination of sewer senior
 is an administrative response which can be implemented directly by the Control Authority.
 For example, a facility  manufacturing bleach in Phoenix,  Arizona, discharged wastewater with
 high concentrations of chlorine residual into the collection system.  The chlorine fumes
 were noticed immediately and forced evacuation of the treatment plant and collection system.
 Sampling detected a chlorine residual concentration of 10.000 parts per million (ppm) while
 the City's standard for chlorine residual was only 1 ppm.  The situation was declared an
 imminent hazard and service was terminated immediately.  Once the danger had passed, service
 was restored within a week.  This situation illustrates the  importance of the Control
 Authority's ability to terminate service to an industrial user.  This power should be
 available regardless of the user's  compliance status, (e.g.. when a sewer line is broken or

      The decision to terminate service requires careful consideration of its  legal and
 procedural consequences.  It is likely that forcing an  industrial user to halt production
 will damage the industry's economic position.   Nonetheless, this drastic measure is
 sometimes necessary to address emergency situations  or industries resistant to  previous
 enforcement measures.  Service termination is sometimes  used as an initial response to
 noncompliance which causes or threatens to cause an emergency situation.   However, it is
 more frequently used as an escalated response to a significant violation when other
 enforcement responses fail to bring the industrial user into compliance.

      Assuming other enforcement responses are unsuccessful, the types of violations
 warranting termination of service are:

      t   Unpermitted discharge(s) which violate the  POTW's NPDES permit or which create a
          dangerous situation threatening human health, the environment, or the treatment

      •   Discharge(s) that exceed local or categorical discharge limits and result in damage
          to the environment

      •   Slug loads causing interference, pass through, or damage to  human  health,  the
          environment, or the treatment plant

      •   Failure of the industrial user to notify the Control Authority of effluent limit
          violations or slug discharge which resulted in environmental  or POTW damage

      •   Complete failure of the industrial user to sample, monitor, or report as required by
          an  AO

      •   Failure of the industrial user to install required  monitoring equipment per the
          condition of an  AO

      •   Major violation  of a permit  condition or AO accompanied by evidence of negligence or
      Several Control Authorities have used termination of ser\ice in response to industrial
noncompliance.  For example, an electroplater in Boise. Idaho, was cited for violating

 reporting, compliance schedule, and discharge requirements: failure to perform self-
 monitoring as required: and falsification of data.  Initially, the industry was issued a
 NOV.  However, when noncompliance persisted, an AO was issued to force the industry to
 achieve consistent compliance.  Finally,  sewer service was terminated.

       Another example where termination of service was used as a last resort to achieve
 compliance was  in San Diego. California.  An oil refining company was issued an NOV for
 exceeding its phenol and zinc limits.  Because it failed to come into compliance, a show
 cause hearing was scheduled and a 90-day compliance order issued.  At the end of the 90-day
 period,  the company was still out of compliance for phenol and zinc.  A notice of intent  to
 terminate service was issued and. two weeks later the City plugged this industry's sewer

       These two cases illustrate how a Control Authority should escalate its administrative
 enforcement response to effectively address persistent noncompliance.  In  Kansas City.
 Missouri, a Control Authority used termination of service in conjunction with criminal
 prosecution.  An electroplating  industrial user was taken to court for ongoing violations of
 cyanide discharge limits.  The judge delayed the proceedings because the  user had contacted
 a contractor about installing a pretreatment system to eliminate the illegal  discharge.
 However, the industry then began discharging even  greater quantities of cyanide into the
 sewer.  The Control Authority deemed the increased illegal discharges a health hazard.
 issued a notice of immediate sewer  service termination, and then plugged  the industry's
 sewer connection.

       In addition to being an effective remedy for past or continuing noncompliance. the
 prospect of termination of service deters unauthorized or illegal discharges.  For users
 whose service  is  terminated, two alternatives to local sewer service exist:  (1) having
 wastewater hauled away: or (2)  obtaining a direct discharge (NPDES) permit.  If these
 alternatives are not feasible for an industry, it  has a strong incentive to avoid
 termination of sewer service and remain in  compliance. For example, a Sanitary District in
 Fremont. California,  threatened to terminate sen ice to an  industrial user which failed to
 submit a baseline monitoring report. The report was  submitted shortly after the notice of
 termination.  Similar success has  been enjoyed by Denton. Texas.  When the regulated
 community is aware that this enforcement response is available and likely  to be used as an
 escalated response, industrial users  generally respond more quickly to preliminary  (less
 severe) enforcement measures.
5.6.3  How to Terminate Service

      There are three basic methods to terminate sewer service:  physically sever (or plug)
the industry's connection to the POTW's collection system, halt the discharge by revoking
the industry's discharge permit, and issue a cease and desist order.  There are advantages
and disadvantages to each of these methods.  Severing the sewer line is immediately
effective but even a temporary plug may be costly to install and remove.  Revoking discharge
permits or issuing cease and desist orders are easy policies to reverse but rely on the
industry 10 carry out the Control Authority directives.

      All of theses methods of termination require notice to the industrial user which should
be specified in the ordinance.  This  notice fulfills the legal due process requirements
associated with service termination and enables the user to halt production in time to avoid
back/lows, spills and other harm to its facility as well as time to look for  alternative
means of wastewater disposal.  Figure 5-6.1 outlines the minimal contents of a notice for
termination  of service.  The notice should be delivered  to a responsible parry at the
industry by  personal delivery or certified  mail.  For example, the Control Authority in
Orlando. Florida,  uses a standard form (see Figure 5-6.2) to  notify industrial users that

          (Due Process Checklist)
1.  Identify Violation

2.  Cite Legal Authority to Terminate Service

3.  Describe Method for Terminating Service

4.  Specify Date and Time When Service Will be Terminated

5.  Hearing Date to Determine Whether Service May be Restored
                  FIGURE 5-6.1


                           CITY OF ORLANDO

Environmental Control                     Environmental Services Sept
Phone 849-2662                            5100 L. B. McLeod Road
                                         Orlando, Fl. 32811
                                          Phone 849.2213
Date of Notice
Business or Individuals.

Address i	
Parson Contactad/Titlat
City Coda Section Violations

Results of Analysist
Due  to  the  serious  -nature of  your  violation, the  City of Orlando
is ordering  you to  immediately stop the  discharge  of the effluent
(in violation), and  to eliminate any further  industrial discharging
by 5iOO p.m. 	, 19

In  the  event  of  your  failure  to  voluntarily  comply  vitn this
suspension order, the City shall take such steps as deemed necessary
including,  but  limited  to,   immediate  severance  of  your  sewer
connection,  to prevent  or minimise  damage  to  our  POTW  system or
endangerment   to   any   individuals   (City  Code   Section  30.10(4)
  	^__            Refused to sign  I   I
Signature of person contacted
Signature of Code Inspector or City Representative
cc:  White - Office
     Pink -  Business or Individual
     Canary  - Code  Inspector
                           FICD1E 5-6.2



they are to immediately stop noncompliant discharges by 5:00 p.m. on the day that the notice
is received.  This form also alerts the industry that its failure to comply will  result  in
severance of its sewer  connection.  For recommendations on content and  issuance of permit
revocations and cease and desist orders, see Section 5.3 of this guidance.

           Hflje Ctntes
                    Tim frfimam
                     - ACtRMIJ

       Many Control Authorities arc discovering the utility of "supplemental" or innovative
 enforcement responses to complement the more traditional enforcement responses described in
 the preceding sections.  Normally, these responses will be used in conjunction with more
 traditional approaches.  Supplemental enforcement responses are typically low cost and are
 designed to reinforce the compliance obligations of industrial users.  The application of
 these responses must be determined on an individual basis.

       Many supplemental responses require actions on the pert of noncompliant users.  To
 ensure that users are legally bound to  perform  these actions, the techniques should be
 included as terms of administrative orders or settlement agreements. When considering
 supplemental enforcement responses, the Control Authority should not consider itself limited
 to those responses discussed in  this section and is encouraged to experiment to develop
 additional supplemental  responses.

 5.7.1  Legal Authority Necessary for Supplemental  Enforcement Responses

      Many supplemental enforcement responses do not require specific legal authorization in
 sewer use ordinances.  However, specific legal  authority is advisable whenever the
 supplemental response requires  the industrial user to pay fees or to take particular
 actions.  For example,  if a Control Authority wants to require its noncompliant users to
 post a bond or  to obtain liability insurance, it is advised to establish its authority to do
 so in the enforcement section of its sewer use ordinance.   Specific legal authority may also
 be appropriate for several enforcement responses implemented by the Control Authority
 itself.  For instance, clear authority to publish the names of significant violators will
 put the  regulated community and the public on  notice of the potential for being published.
 thereby reducing the likelihood  of a challenge to future publications.

      Supplemental enforcement responses may be organized into two categories.  The first
 category consists of responses for which specific legal authority is recommended (see
 Table 5-7.1 and Section 5-7.2). The second category are  responses for which specific
 authority is not generally necessary (see Table 5-7.2  and Section 5-7.3).  For
 recommendations on ordinance  language authorizing supplementary enforcement techniques,  see
 Section  3.5 of this  guidance.

 5.7.2   Supplemental Enforcement Responses for Which Specific Legal  Authority
        is Necessary

      The Control  Authority is encouraged to enact legal authority for each of the following
 supplemental enforcement responses.

 Public Notices

      According to EPA regulations, all Control Authorities must comply with the public
participation requirements of 40 CFR Part 25.  Among these requirements is annual
publication of a list of industrial users which were significantly violating applicable
pretreatment standards or requirements [see 40 CFR 403.8(f)(2)(\ii)J.  Publication of this
list  is intended to deter industrial users from committing pretreatment violations and to
satisfy the public's  right to know of violations affecting its immediate environment and
causing additional expenditures of public funds to operate and maintain the treatment

       Although Federal law requires only annual publication of the list of significant
 violators, it does not prohibit publication on a more frequent basis.  Some Control
 Authorities have found publishing the names of violators at quarterly or semiannual
 intervals to be an effective means of encouraging compliance. While public notice is not a
 direct enforcement action against a  user, awareness that significant violations result in
 public notice will deter users concerned with their public image. Once users  are put on
 public notice, reaction from the general public and from environmental interest groups may
 hasten a return to compliance.  Publication on a more frequent  basis may also avoid noticing
 users which have already returned to compliance.

       Publishing the names of noncompliant industries (prior to admissions of liability or
 formal adjudications) raises the prospect of suits for libel.  However,  a Control Authority-
 can take steps to discourage such suits. First, the Control Authority must ensure that its
 legal authority to publish is clear and  unrestricted.  Although not required by  EPA
 regulations,  it is recommended that an intent to publish be  stated in the sewer use
 ordinance and wastewater discharge permits to provide notice to  users and to deter
 violations.   By clarifying that a significant violation will lead to publication, the notice
 itself may deter many suits.  Second, the public notice should contain details regarding
 both the violation and any subsequent remedial measure taken by the  user.  A detailed.
 balanced notice will preclude many  suits based on the assertion that the notice was unfair
 or  misleading.  Finally, the Control Authority must be able to establish the validity of its
 data establishing violations.  Thorough and consistent QA/QC procedures and chain-of-custody
 practices are an absolute necessity.  Careful documentation of compliance and enforcement
 activities will enable the Control Authority to rebut charges of inaccurate publication

      The manner in which the public notice is published can also avert accusations of unfair
 or inequitable treatment.  EPA  regulations require only that a list of the names of
 significant  violators be published and that an  accompanying statement regarding the
 violations during the previous twelve months  (or whatever publication period is adopted) be
 included. However,  the notice may  also explain mitigating circumstances surrounding  the
 violation, such as:

      •   Current compliance status
      •   Methods being used to attain compliance
      •   Type and severity of the violation
      •   Duration of the violation.

 By  balancing the text of the notice with favorable  information, the user receives credit for
 any "good  faith" efforts  it is making.

      The  list of significant violators may be placed in the legal  notices section of the
 newspaper  or elsewhere, at the  discretion of the Control Authority.  In fact,  placement in a
 forward section of the newspaper may result in a significantly larger readership and greater
effectiveness. In some cases. Control  Authorities furnish a press release to the newspaper
to provide this information.  This approach eliminates the cost of buying space and may
 result in more favorable placement.  However, the Control Authority must ensure that the
 notice will  be published  and must also be careful to provide concise, accurate  information
 that will not  be misinterpreted by the reporter.  Therefore, complete reliance on a
newspaper's  editorial judgment  is not recommended.

      Costs of publication are frequently cited as a principal reason for a Control
Authority's failure to publish the significant violator notice.  Some means of reducing, or
even eliminating  the costs of publication have already been mentioned above such as
including it with  other city-run notices, locating the notice within the newspaper, and
press releases. The Control Authority may negotiate with the paper for lower  cost or
consider passing  the cost on to the user through a surcharge, fee or other similar means

                              SPECIFIC LEGAL AUTHORITY IS
             •  Public Notices

             •  Water Service Teraiination

             •  Performance Bond/Liability Insurance

             •  Contractor Listing Program
                              SPECIFIC LEGAL AUTHORITY IS
                              NOT NECESSARY
             •  Increased Monitoring and Reporting

             •  Rewards for Informants

             •  Short  Term Permits

             •  Special Community Avareness Programs

             •  Case Referral  to Approval Authority

 However, if costs remain a cause of concern, the Control Authority should recognize that, as
 •n enforcement tool with good potential to lower the number of significant violations (thus.
 lowering enforcement costs), publication is a sound investment.

 Water Service Termination

      Common procedures for terminating sewer services to noncompliant industrial users
 (including its effectiveness as an enforcement response) were discussed above (see
 Section 5.6).  However, where available to the Control Authority, termination of water
 service has proven equally effective.

      Like  sewer termination,  the lack of fresh water will force industries to halt
 production until service is restored  (that is. once corrective measures acceptable to the
 Control Authority are undertaken by the user).  Some Control Authorities have jurisdiction
 over both water and sewer services, making termination of water service for noncompliance
 with the pretreatment program  a relatively  simple matter  Others have entered  into
 interagency agreements with the local water works which provide that either agency will
 terminate a user's service at the request of the other agency.

      Regardless of the jurisdictional situation, the Control Authority'  should clearly
 indicate to its industrial users that violations of the ordinance or any permits and orders
 issued pursuant to the ordinance may also  result in the severance of water services.  For
 more information on specific ordinance language,  see the language set out in Chapter 3 of
 this guidance.

 Performance Bonds/Liability Insurance

      Yet another supplemental enforcement  response is to require, through an AO or as part
of a consent agreement, a noncompliant industrial  user to post a performance bond covering
expenses which the POTW might incur in  the event of future violations.  Similarly, several
Control Authorities have required industrial users  responsible for upsetting the  treatment
works to obtain sufficient liability insurance to cover the cost of restoring the treatment
works in the event a second upset occurs.

      A requirement for posting a bond or obtaining insurance coverage can be placed in an  AO
and. thereafter, included as a condition of the industrial user's  permit. A Control
Authority  using these responses in its enforcement response plan should establish its
authority to require such "financial assurances" in its sewer use ordinance.

Contractor  Listing Program

      The Control Authority may have another source of economic leverage against noncompliant
industrial  users with significant contracts with the Control Authority or other municipal
entities:  the threat that existing contracts may be terminated or new contracts not awarded
to industries violating pretreatment standards.  Generally, this response will not be
available unless the local ordinance specifically includes such a provision  Moreover, a
contractor listing program will  only be effective with  industries  that have contracts of a
greater value than the cost of compliance.

 5.7.3  Supplemental Enforcement Responses for Which Specific Legal Authority
         is Not Necessary

       The following supplemental enforcement responses are normally available without
 specific legal authority.

 Increased  Monitoring and Reporting

       Generally, industrial users demonstrating a history of noncompliancc should be subject
 to increased  surveillance (i.e.. sampling and inspections) by the Control Authority.  Since
 recurring violations Indicate that at least one chronic problem exists at the facility, the
 Control Authority should monitor the user closely and require additional user self-
 monitoring until the problem  is corrected and consistent compliance is demonstrated.  For
 example, where a pretreatment system is found to be inadequate to meet applicable limits, an
 AO requiring the installation of additional technology should also  include an increased
 self-monitoring frequency (e.g.. a requirement to monitor quarterly may be increased to
 monthly).  Increased surveillance and more stringent self-monitoring requirements for
 chronic violators will also provide a powerful incentive to return to compliance.

       The increased compliance information will aid the Control Authority's enforcement
 program in several ways.  First, it provides  greater data on the extent of the user s
 noncompliance. Second, given the expense  involved in monitoring, requiring the  user to
 perform more frequent pollutant analyses serves to deter further violations.  Finally, the
 additional data will allow the user to demonstrate that consistent compliance has. in fact.
 been achieved. Of course, the Control  Authority should also schedule its own inspection and
 sampling visits on a more frequent basis to verify the  increased self-monitoring data.  A
 number of Control  Authorities have also found that charging the industry for this additional
 Control Authority monitoring  (both sampling and analysis) increases the effectiveness of the
 enforcement  response.  Furthermore, these additional monitoring  fees will ensure  that the
 Control Authority has  adequate resources to screen and interpret the additional compliance
 information received from the noncompliant industry, and  not force a reduction in monitoring
 for other industrial users.

       The  requirement to monitor more frequently must not be "open-ended." and should
 automatically terminate on a specific date or when a specific contingency has been
 satisfied  For example, an AO may only require the increased monitoring for a six-month
 period (assuming the problem can  be corrected in six months).  Alternatively, the  order
 could  require the intensive monitoring to continue until six consecutive months show

       It is  essential that  the Control Authority's compliance information be as current as
 possible. Consequently,  the frequency of the industrial user's reporting schedule must also
 be increased  to coincide  with increased self-monitoring requirements.  For example.
 semiannual reporting should be increased to monthly or bi-weekly, depending on the severity
 of the problem while the additional self-monitoring is being conducted.

 Rewards  for Informants

      To a great extent,  the pretreatment program relies on self-monitoring activities
conducted by industrial users.  Since this self-monitoring information can form the basis of
an enforcement action, there is an  inherent danger that an  industrial user will resort to
fraud or misrepresentation to conceal noncompliance.  Therefore,  the Control Authority must
verify self-monitoring results to the greatest extent possible. Several Control Authorities
have gone beyond simply conducting periodic analysis themselves and have instituted programs

 designed to encourage individuals with information about an industrial user's noncompliance
 to come forward  A significant reward and the promise of anonymity often encourage such
 individuals or groups to submit noncompliance information to the Control Authority

       This outside information may come from several sources, including industry employees.
 laboratories conducting discharge analyses,  and honest competitors who discover the
 noncompliance.  In many cases the  reward  program is set out in the Control Authority's sewer
 UK ordinance.  Frequently, a base reward of SI00 to $500 is offered for information which
 leads to effective enforcement.  In addition, informants may receive up to 10  percent of any
 administrative, civil, or criminal penalty  collected from the noncompiiant user.

 Short Term Permits

       For Control Authorities with large numbers of industrial facilities (for example. IS or
 more), the permit renewal process represents the best opportunity to evaluate the
 sufficiency of treatment and the compliance status of each industrial user. Permit
 reappllcations provide updated data on the facility and are often cause for a comprehensive
 sampling and inspection visit by the  Control Authority.  The process also helps to make
 industries aware of new or revised pretreatment requirements and obligations and to evaluate
 the need for onsite spill control plans.

       Most local ordinances prohibit permit durations of "more than five years."  However, few
 contain a minimum  permit duration.  Consequently, the length of a permit's effective period
 is a discretionary matter.  The Control Authority can use a permit's duration to force an
 "early look"  at a noncompiiant industry by issuing  it a short-term permit. In addition to
 scheduling a comprehensive review of the industrial user's circumstances  a short-term
 permit can be used to increase  self-monitoring and  reporting requirements as  well as to
 impose a compliance schedule which concludes shortly before permit expiration.

      The  permit  renewal process provides  both an opportunity to accurately measure the
 industrial user's progress and leverage to ensure that necessary improvements in the
 facility's operation are being accomplished.  Generally, an effective period of between 12
 and 18 months will serve as a sufficient interval for a facility  to achieve consistent
 compliance.  Control Authorities which charge a substantial permit renewal fee (e.g.. SIOOO)
 have also found the issuance of short-term permits to be an effective deterrent to

 Special Community Awareness Programs

      Requiring violators to convince other  industrial users that consistent compliance must
 be maintained is another innovative response to noncompliance. This may involve requiring a
 noncompiiant user to draft  letters to other significant industrial users explaining its
 violation(s) and outlining the  corrective measures  being taken to ensure that the
 vk)lation(s) is not repeated.  Alternatively, users may be required to speak directly to
 other industries, interested groups, or the general public  at pretreatment meetings or
 seminars sponsored by the  Control Authority. These testimonials illustrate that the Control
 Authority responds to noocompliance in a fair but firm manner and that it is serious  about
pretreatment enforcement.  Such  testimonials may have a significant deterrent effect on
other industrial users.  Generally, these community awareness activities are either elements
of AOs or are included as terms of settlement agreements.  Consequently, no special legal
authority explicitly providing for such activities need be adopted.

Case Referral to the Approval Authority

       The Approval Authority always has the option to take independent enforcement action
when  it deems necessary.  Even though a Control Authority's enforcement authorities may be
extensive, there may be occasions when it finds it impossible to force a particular
industrial user to achieve consistent compliance.  For example, a Fortune 500 corporation
may be financially able to withstand fines or penalties of SI000 per day without achieving
consistent compliance for a considerable period.  In these circumstances, it may be
appropriate for the Control Authority to refer the  matter to the Approval Authority  (or EPA
if different). This referral may result in joint action with the Approval Authority or
action by the Approval Authority  alone.

       The  penalties available to most Approval  Authorities are substantially greater than
those available to Control Authorities.  For example, the Clean Water Act allows EPA to
impose administrative fines of up to $125,000 per action and to seek civil penalties of up
to $25.000 per day per violation and criminal penalties of up to SI  million and/or 15 years
Imprisonment (see 33  U.S.C. 309).  While State sanctions may not be as severe as EPA's
enforcement responses, most provide for substantial civil and criminal penalties.  Even
where the Approval Authority undertakes enforcement, the Control Authority  is expected to
continue to track an industrial user's compliance  and take such additional enforcement
actions, including joining the State or Federal action when necessary. Cooperation with the
Approval Authority  in enforcement actions also  provides Control Authority training in
enforcement methods  (both investigatory and legal), increases the deterrent value of initial
Control Authority responses,  and  results in more  constructive public relations (i.e.. the
community is reassured that stringent enforcement of its environmental laws is a reality).

                             APPENDIX  A

 •  ABSOLVE - To excuse; to free from an obligation or the consequences of guilt or

 •  ADMINISTRATIVE ACTION (a fine or order) - An enforcement action authorized by the
    Control Authority's legal authority which is taken without the involvement of a

 •  ADMINISTRATIVE FINE - A punitive monetary charge unrelated to actual treatment costs
    which is assessed by  the Control Authority rather than a court.

 •  ADMINISTRATIVE ORDER - A document which orders the violator to perform a specific
    act or refrain from an act.  For example, the order may require users to attend a
    show cause meeting,  cease and desist discharging, or undertake activities pursuant
    to a compliance schedule.

 •  ADMISSIBLE EVIDENCE - Evidence which can be presenicd in court.

 •  AFFIDAVIT - A sworn statement in writing under oath before  an authorized magistrate
    or officer.

 •  APPROVAL AUTHORITY - EPA or States with an EPA-approved pretreatment program   The
    Approval Authority' is responsible for approval and oversight of Control  Authority
    pretreatment programs,  including an evaluation of the effectiveness of local

 •  ARBITRARY OR CAPRICIOUS ALLEGATION - An assertion that « decision or action token by
    the Control Authority was unreasonable or not founded upon sound judgment.

 •  BURDEN OF PROOF - The duty of proving a disputed assertion or charge in  court.

 •  CEASE AND DESIST ORDER - An administrative order directing an industrial user to
    immediately  halt illegal or unauthorized discharges.

 •  CHAIN-OF-CUSTODY  - A written record of sample  possession for all persons who handle
    (collect, transport, analyze, dispose of) a sample, including names, dates, times.
    and procedures followed.

•  CIVIL LITIGATION - A lawsuit filed in a civil  court. If the court rules that the
    defendant industrial user violated  the law the court may impose  civil penalties.
    injunctions or other equitable remedies and/or cost recovery'

•   CTVIL PENALTY - A punitive monetary award granted by a court to the Control
    Authority against a noncompliant industrial user.

•   COMPLIANCE ORDER - An administrative order directing a noncompliant industry  to
    achieve or restore compliance by  a date specified in the order.

 •  COMPLIANCE SCHEDULE - A schedule of required activities (also called milestones)
    necessary for an industrial user to achieve compliance with all preueatmem program

 •  CONSENT DECREE - A court supervised settlement agreement, the violation of which may
    be considered contempt of court.

 •  CONSENT ORDER - An administrative order embodying a legally enforceable agreement
    between the Control Authority and the noncompliant industrial user designed to
    restore the user to compliance status.

 •  CONTROL AUTHORITY - The entity directly administering and enforcing pretreatment
    standards and requirements against industrial users. For purposes of this manual.
    the Control Authority is an approved local POTW program.

 •  CRIMINAL INTENT - A state of mind which is a necessary element of all crimes.
    Criminal intent may be general (intent to perform an act) or specific (intent to
    break a law).

 •  CRIMINAL NEGLIGENCE - Negligence of such a character, or occurring under such
    circumstances, as to be punishable as a crime  (such as a flagrant and reckless
    disregard of the safety of others or willful! indifference to the injury likely  to

 •  CRIMINAL PROSECUTION - A criminal charge brought by the Control  Authority against an
    accused  violator.  The alleged criminal action may be a misdemeanor or a  felony and
    is defined as willful, negligent, knowing, and/or  intentional violations   A court
    trial-by-jury is generally required and upon conviction, punishment may include a
    monetary penalty-, imprisonment, or both.

 •  DEFENDANT - The party against  whom relief or recovery is sought.

 •  DEPOSITION - A discovery device by which one party addresses verbal questions  to the
    other party or to a witness for the other party.  Depositions are conducted under
    oath outside the courtroom, usually in  the office of an attorney  A transcript is
    made of the deposition which may  be used as evidence at trial.

 •  DETERRENT VALUE -  A threat of reprisal which is sufficient to discourage the
    industrial user from future violations.

 •  DISCOVERY - A variety of pretrial devices used by one party to obtain relevant facts
    and information about the case from the other party.

 •  DOUBLE JEOPARDY - The prohibition against a second prosecution after a trial for the
    same offense.

 •  ENABLING LEGISLATION - A stale  law or charter which creates and empowers  a Control

 •  FELONY - A crime punishable by imprisonment for greater than one year (depending on
    State  law).

»   FEES - A schedule  of charges imposed to reco\rr treatment costs (not punitive in

 •  FINE • A punitive monetary charge for a violation of the law.  Often used
    synonymously with "penalty'." although the term Tine" generally implies the use of
    administrative rather than civil (judicial) procedures.

 •  GOOD FAITH EFFORT OR PROGRESS - Prompt and vigorous pollution control measures
    undertaken by the discharger which shows that extraordinary efforts (not a
    "business-as-usual" approach) have been made to achieve compliance.

 •  GRAND JURY - A body of citizens whose duties consist of determining whether probable
    cause exists that a crime has been committed, and whether an indictment should be
    returned against a named defendant.

 •  INADMISSIBLE - Evidence not allowed to be presented in  court.

 •  INDICTMENT - A written  accusation of criminal conduct by a grand jury

 •  INJUNCTION, INJUNCTTVE RELIEF - A court order  which restrains or compels action by
    the industrial user.

 •  INTERRORGATORIES - A discovery device consisting of written questions submitted by
    one party to the other party  or witness.

 •  JUDICIAL ACTION OR CASE - An  enforcement action that involves a court.  (The action
    may either be civil or criminal in nature).

 •  JURISDICTION  - The extent of authority  of a governmental entity's power to make and
    enforce laws.

 •  LEGAL AUTHORITY - The source of a Control Authority's jurisdiction and regulatory

 •  LIBEL SUIT - A suit against a person who is responsible for a written  statement that
    allegedly conveys an  unjustly unfavorable impression of another person.

 •  LITIGATION - An enforcement action brought in a judicial (court) forum.

 •  MISDEMEANOR - A crime punishable by imprisonment of less than one year (depending on
    State law).

 •  NOTICE OF VIOLATION  - A Control Authority document notifying an industrial user that
    it  has violated pretreatment standards and requirements.  Generally used when the
    violation is relatively minor  and the Control Authority expects the violation to be
    corrected within a short period of time.

    system for the direct discharge of pollutants into U.S. waterways.

•   PENALTY - A monetary or  other punitive  measure, usually associated with  a court
    action.  For purposes of this manual, the term is used synonymously with fine.

•   PLAINTIFF - A person or organization seeking remedy from a court. For purposes of
    this manual, the plaintiff is the Control Authority.

 PLEA BARGAIN - An agreement between a prosecuting attorney and a criminal defendent
 whereby the defendent pleads guilty to a lesser charge and/or a reduction of
 sentence in exchange for cooperation in investigating or prosecuting the crime
 (e.g., waiving a trial).

 PRIORITY POLLUTANTS - A list of 126 pollutants established by EPA and considered
 hazardous to the environment and to humans.

 PROPRIETARY INFORMATION - Information about a commercial chemical, product, or
 process which is considered to be confidential business information or a trade
 secret by an industrial user because if divulged,  the information could be put the
 industrial user at an unfair competitive disadvantage with competitors in the same

 PUBLICLY OWNED TREATMENT WORKS OR POTW - A  system of conveyances and
 treatment for  sewage and industrial wastes.  Also refers to the government officials
 responsible for operation and maintenance of the collection system or treatment
 plant and the  administration of the pretreatment program.

 REPORTABLE NONCOMPLIANCE -  Criteria for identifying when a Control  Authority should
 be reported in the NPDES Quarterly Noncompliance Report for failure to implement its
 approved pretreatmeni program.

 REQUEST FOR ADMISSION  - A discovery device where a written statement of fact
 concerning the case is submitted to the adverse party and which that party is
 required to affirm or deny.  Those statements that are admitted  will be treated by
 the court as having been established and need not be proved at  trial.

 REQUEST FOR PRODUCTION - A discovery device which requests the opposing party to
 produce some document or thing which may tend to resolve an  issue  in dispute in the

 SEARCH WARRANT - A document issued  by a magistrate or judge which authorizes
 government entry into private premises to either observe compliance with applicable
 laws or collect evidence of noncompliance.

 SELF MONITORING - Sampling and analysis of wastewater performed by the industrial

 SHOW CAUSE ORDER - An administrative order directing a noncompliant user to appear
 before the Control Authority, explain its noncompliance. and show cause why more
 severe enforcement actions against the user should not go forward.

SIGNIFICANT NONCOMPLIANCE - Criteria used by Control and Approval Authorities to
 identify important violations and/or patterns of noncompliance.  This criteria is
 used to establish enforcement priorities and comply with special reporting

STANDARD OF STRICT LIABILITY - Liability which attaches without regard to the user s
 "negligence" or "intent" to violate.  Noncompliant industrial users will be found
liable for pretreatment violations if the Control Authority proves that a violation

STATUTE OF LIMITATIONS - A law  which prescribes the period within which an
enforcement action  may be pursued by the Control Authority.

•   STIPULATION - A voluntary agreement between opposing parties as to facts or issues
    in controversy.

•   SURCHARGE - The charge for treating excessive pollutant loadings.

•   TERMINATION OF SERVICE - A physical blockage of the sewer connection to a
    noncompliant user or issuance of a formal notice of termination to the industrial

•   TESTIMONY - A  solemn declaration  made by a witness under oath  in response to
    interrogation by a lawyer or public official which is used as evidence.