United States
Environmental Protection
Agency
Office of Water Enforcement
and Permits
Washington. DC 20460
September 1989
Water
Guidance for Developing
Control Authority
Enforcement Response Plans
SLUDGED INDUSTRIAL
USERS
REPORTING ~ ^ 3^T PROHIBITIONS
TRACKWG ^QCWFCXINSPECTIONS
^ Printed OP Recycled Paper
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OFFICE OF
WATER
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.
Sincerely,
James R. Elder, Director
Office of Water Enforcement
and Permits
-------
GUIDANCE FOR
DEVELOPING CONTROL AUTHORITY
ENFORCEMENT RESPONSE
PLANS
September 1989
Office of Water Enforcement and Permits
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
-------
DISCLAIMER
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
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
2.3 ESTABLISHING OR REVIEWING COMPLIANCE MONITORING
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 ASSESSING AUTHORITY TO IMPOSE PRETREATMENT REQUIREMENTS 3-2
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 EXAMPLE SEWER USE ORDINANCE ENFORCEMENT PROVISIONS 3-7
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 ESTABLISHING A RANGE OF ENFORCEMENT RESPONSES 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 ESTABLISHING RESPONSIBILITIES OF CONTROL AUTHORITY
PERSONNEL
4.2.1 Inspectors/Field Personnel
4.2.2 Pretreatment Coordinator 'Industrial Waste Manager
423 POTW Director/Superintendent
4.2.4 Control Authority Attorney
4.3 DETERMINING TIME FRAMES FOR ENFORCEMENT ACTIONS AND
FOLLOW-UP
4.4 APPLYING THE ENFORCEMENT RESPONSE GUIDE
441 Using the Model Enforcement Response Guide
442 Description of Terms
4.4.3 Model Enforcement Response Guide
4.5 EVALUATING THE EFFECTIVENESS OF AN ENFORCEMENT
RESPONSE GUIDE
5 THE ENFORCEMENT RESPONSES
5.1 NOTICE OF VIOLATION
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 ADMINISTRATIVE FINES
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
53 ADMINISTRATIVE ORDERS
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
4-4
4-4
4-5
4-5
4-5
4-5
4-6
4-6
4-7
4-8
4-13
5. a
5-1.1
5-1.1
5-1.1
5-1.2
5-1.2
5-2 1
5-2.1
5-2.2
5-2.3
5-3.1
5-3.1
5-3.2
5-3.3
-------
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
APPENDIX A - GLOSSARY OF TERMS RELEVANT TO ENFORCEMENT A-1
-------
TABLES
TABLE
3-1
5-1.1
5-7.1
5-7.2
TITLE
PAGE
FIGURE
5-1.1
5-3.1
5-3.2
5-33
5-3.4
5-4.1
5-51
5-5.2
5-6.1
5-6.2
EVALUATION OF CURRENT ENFORCEMENT RESPONSES 3-4
VIOLATIONS WHICH MAY BE ADDRESSED BY A NOTICE OF VIOLATION 5-1.3
SUPPLEMENTAL RESPONSES FOR WHICH SPECIFIC LEGAL AUTHORITY
IS NECESSARY 5-73
SUPPLEMENTAL RESPONSES FOR WHICH SPECIFIC LEGAL AUTHORITY
IS NOT NECESSARY
FIGURES
TITLE
EXAMPLE NOV
EXAMPLE CEASE AND DESIST ORDER
EXAMPLE CONSENT ORDER
EXAMPLE SHOW CAUSE ORDER
EXAMPLE COMPLIANCE ORDER
THE CIVIL LITIGATION PROCESS
CIVIL LITIGATION VS CRIMINAL PROSECUTION
STEPS IN CRIMINAL PROSECUTION
CONTENTS OF NOTICE OF TERMINATION OF SERVICE
EXAMPLE TERMINATION ORDER
5-7.3
PAGE
5-1.4
5-3.8
5-3.10
5-3.12
5-3.14
5-4.7
5-5.2
5-5.7
5-6.4
5-6.5
-------
CHAPTER 1
INTRODUCTION
-------
1. INTRODUCTION
1.1 PURPOSE OF THE MANUAL
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.
1.2 ELEMENTS OF AN ENFORCEMENT RESPONSE PLAN
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
actions.
1-1
-------
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.
1.3 BENEFITS OF AN ENFORCEMENT RESPONSE PLAN
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.
1-2
-------
1.4 ORGANIZATION OF THE MANUAL
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.
l-.l
-------
CHAPTER 2
DEVELOPING AN ENFORCEMENT
RESPONSE PLAN
Evaluate Legal
Authority
Prepare
Response Guide
Accessibility to
Legal Professionals
Training
Obtain Political
Support
ENFORCEMENT
RESPONSE PLAN
Resources
Document All
Violations
Screen Compliance
Data
Compliance Inspection
Sampling Visits
Maintain User
Inventory
-------
2. DEVELOPING AN ENFORCEMENT RESPONSE PLAN
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.
2.1 IDENTIFYING APPROPRIATE PERSONNEL
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
authority.
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.
2-1
-------
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.
2.2 REVIEWING THE INDUSTRIAL USER INVENTORY
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.
2-2
-------
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.
2.3 ESTABLISHING OR REVIEWING COMPLIANCE MONITORING
PROCEDURES
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.
2.4 CREATING PROCEDURES TO SCREEN DATA
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
2-3
-------
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
2-4
-------
CHAPTER 3
EVALUATING THE SEWER USE
ORDINANCE
-------
3. EVALUATING THE SEWER USE ORDINANCE
3.1 NATURE AND PURPOSE OF A SEWER USE ORDINANCE
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.
3-1
-------
3.2 ASSESSING AUTHORITY TO IMPOSE PRETREATMENT REQUIREMENTS
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
interference?
3. Does the ordinance incorporate all enforcement authorities allowable under State
law?
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
3-2
-------
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.
3-3
-------
TABLE 3-1. EVALUATION OF CURRENT ENFORCEMENT RESPONSES
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
INSTRUCTIONS:
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.
3-4
-------
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
access.
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).
3-5
-------
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.
3-6
-------
3.3 EXAMPLE SEWER USE ORDINANCE 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
3.3.1.1 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.
3.3.1.2 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 3.3.1.4. below
3.3.1.3 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.
3.3.1.4 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
3-7
-------
address the noncompliaitce. including the installation of pretreannent technok>g\. additional
self-monitoring, and management practices.
3.3.1.5 Cease and Desist Orders
H7]
-------
3.3.1.8 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 /oğr, is subject to pennit termination:
a) Violation of permit conditions
b) Failure to accurately report the wastewater constituents and cltaracterisiics of its
discharge
c) Failure to report significant changes in operations or wastewater constituents and
characteristics
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 3.3.1.3 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\.
3.3.2.1 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.
3.3.2.2 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.
3-9
-------
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
3.3.2.3 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
3.3.3.1 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.
3.3.3.2 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.
3.3.3.3 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
3-10
-------
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
3.3.3.4 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.
3.3.3.5 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
3.3.3.6 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
3.3.3.7 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
3.3.4.1 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
3-11
-------
written repon thereof shall be filed b\ the user within five da\s The report s'ia/1
contain
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
3.3.4.2 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.
3-1;
-------
CHAPTER 4
DEVELOPING AN ENFORCEMENT
RESPONSE GUIDE
-------
4. DEVELOPING AN ENFORCEMENT RESPONSE GUIDE
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).
4.1 ESTABLISHING A RANGE OF ENFORCEMENT RESPONSES
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
4-1
-------
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.
4-2
-------
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.
4-3
-------
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).
4.2 ESTABLISHING RESPONSIBILITIES OF CONTROL AUTHORITY
PERSONNEL
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
personnel.
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.
4-4
-------
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.
4.3 DETERMINING TIME FRAMES FOR ENFORCEMENT ACTIONS AND
FOLLOW-UP
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
4-5
-------
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.
4.4 APPLYING THE ENFORCEMENT RESPONSE GUIDE
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.
4-6
-------
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
taken.
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
schedules.
4-7
-------
4.4.3 Model Enforcement Response Guide
UNAVTHORIZED DISCHARGES (No permit)
NONCOffPLIANCX
1. Unpermitted discharge
2. Nonpermitted discharge
(failure to renew)
MATURE OP THE VIOLATION
IU unaware of requirement; no harm
to POTV/environment
IU unaware of requirement; harm to
POTV
Failure to apply continues after
notice by the POTV
IU has not submitted application within
10 days of due date
ENFORCEMENT RESPOHSES PERSONNEL
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
DISCHARGE LIMIT VIOLATION
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
4-8
-------
MONITORING AND REPORTING VIOLATIONS
NONCONPLIANCB
1. Reporting violation
NATURE OP THE VIOLATION
Report is improperly signed or
certified
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
Falsification
RESPONSES
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
NOV
AO with fine
Civil action
Show cause order
Terminate service
Criminal investigation
Terminate service
PERSONNEL
PC
PC
PC, S
I, PC
PC
PC
PC, S
S
PC
PC
S
PC, S
S
S
S
4-9
-------
MONITORING AMD REPORTING VIOLATIONS (Continued)
NONCOMPLIAJd
2. Failure to Monitor
correctly
3. Improper sampling
Failure to install
monitoring equipment
5. Compliance Schedules
(in permit)
MATURE OF THE VIOLATION
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
ENFORCEMENT RESPONSES PERSONNEL
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
4-10
-------
OTHER PERMIT VIOLATIONS
NONCONPLIANCE
1. Wastest reams are diluted
in lieu of treatment
Failure to mitigate
noncompliance or halt
production
Failure to properly
operate and maintain
pretreatment facility
HATURE OF THE VIOLATION
Initial violation
Recurring
Does not result in harm
Does result in harm
See No. 2 above
ENFORCEMENT RESPONSES
AO with fine
Show cause order
- Terminate service
NOV
- AO with fine
Civil action
PERSONNEL
PC
PC, S
s
PC
PC
s
VIOLATIONS DETECTED DURING SITE VISITS
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
PC
S
S
4-11
-------
VIOLATIONS UK 1 SITED OWING SITE VISITS (Continued)
NONCOffPLIAHCB
3. Improper Sampling
4. Inadequate recordkeeping
5. Failure to report
additional monitoring
NATURE OP THE VIOLATION ENFORCEMENT RESPONSES
Unintentional sampling at incorrect NOV
location
Unintentionally using incorrect sample NOV
type
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
PERSONNEL
I, PC
I, PC
I, PC
I, PC
PC
I, PC
PC
TINEFRAHES FOR RESPONSES
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.
4-12
-------
4.5 EVALUATING THE EFFECTIVENESS OF AN ENFORCEMENT RESPONSE GUIDE
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
4-13
-------
CHAPTER 5
THE ENFORCEMENT RESPONSES
TERMINATION
-------
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
laĞ 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.a
-------
NOTICE OF VIOLATION
-------
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
measures.
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.
5-1.1
-------
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
5-1.2
-------
F/834-03-035-01b/#21
TABLE 5-1.1. VIOLATIONS VHICH NAT BE ADDRESSED BT A NOTICE OP VIOLATION
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
5-1.3
-------
EXAMPLE NOV
DmSION OF WATER AND WASTEWATER SERMCES
(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.
FINDINGS
/. (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
requirements.
5. On [Date I pollutant analysis re\-ealed that the qitantin of [pollutant] exceeded the
permit limitation.
NOTICE
THEREFORE. BASED ON THE ABOVE FINDINGS. [NAME OF INDUSTRY] IS HEREBY
NOTIFIED THAT:
/ . It is in violation of its discharge permit and the server use ordinance of fName of
City]
Signed: _
[Name]
Superintendent of Sewer Services
[Address]
FIGURE 5-1.1
5-1.4
-------
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.
5-1.5
-------
ADMINISTRATIVE FINES
-------
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.
5-2.1
-------
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
noncompliance
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
5-2.2
-------
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
increments.
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
5-2.3
-------
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
violation.
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
user.
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.
5-2.4
-------
ADMINISTRATIVE ORDERS
-------
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
5-3.1
-------
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
violation.
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.
5-3.2
-------
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
problem.
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
representatives.
5-3.3
-------
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
Authority
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.
5-3.4
-------
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
5-3.5
-------
(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
information.
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.
5-3.6
-------
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
discharges
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
date).
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.
5-3.7
-------
EXAMPLE CEASE AND DESIST ORDER
DIVISION OF WATER AND WASTEWATER SERVICES
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.
FINDINGS
/. 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
manner:
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 shoğ- cause hearing pursuair to an
requiring said attendance.
FIGURE 5-3.1
5-3.8
-------
ORDER
THEREFORE. BASED ON THE ABOVE FINDINGS. [INDUSTRY] IS HEREBY ORDrRF.D TO:
/. 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
/Industry/.
Signed:
[Name]
Superintendent of Sewer Services
[City] Municipal Building
[Address]
FIGURE 5-3.1 (Continued)
5-3.9
-------
EXAMPLE CONSENT ORDER
DIVISION OF WATER AND WASTEWATER SERVICES
[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!
AND THE SUPERINTENDENT OF SEWER SERVICES FOR THE CfTY OF
_ , 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
permit.
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
5-3.10
-------
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.
SIGNATORIES
FOR [INDUSTRY]
Dale Name
[Industry]
FOR [NAME OF CITY]
Date Name
Superintendent or Sewer Sen-ices
Address
FIGURE 5-3.2 (Continued)
5-3.11
-------
EXAMPLE SHOW CAUSE ORDER
DIVISION OF WATER AND WASTEWATER SERVICES
[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.
FINDINGS
/. (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
SrĞrr 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
5-3.12
-------
ORDER
THEREFORE. BASED ON THE ABOVE FINDINGS. {INDUSTRY] IS HEREBY ORDERED TO:
/. 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
/Industry/.
Signed:
[Name]
Superintendent of Sewer Services
[Address]
FIGURE 5-3.3 (Continued)
5-3.13
-------
EXAMPLE COMPLIANCE ORDER
DIVISION OF WATER AND WASTEWATER SERVICES
[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.
FINDINGS
/. 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 .
1989.
c All of these violations satisf\ the Cm 5 definition of significant violation
FIGURE 5-3.4
5-3.14
-------
ORDER
THEREFORE. BASED ON THE ABOVE FINDINGS. [INDUSTRY] IS HEREBY ORDERED TO:
/. Within 180 days, install pretreatment technology which will adequately treat
{Industry] s wastewater to a level which will compl\ with its wasteu-aier discharge
permit.
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
{Address/
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
order.
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
Signed
[Name]
Superintendent of Sewer Services
[Address]
FIGURE 5-3.4 (Continued)
5-3.15
-------
CIVIL LITIGATION
-------
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
5-4.1
-------
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
5-4.2
-------
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
litigation.
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
collected.
Injunctions
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.
5-4.3
-------
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
spill
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
5-4.4
-------
civil penalty of $125.000 The following are additional examples of successful civil
litigation:
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
following:
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
discharges
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?
5-4.5
-------
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.
5-4.6
-------
THE CIVIL LITIGATION
PROCESS
Control Authority Decides to Sue Industrial User to
Recover Costs, Seek Civil Penalties, and Corrective
Actions
Control Authority Files Complaint Alleging
Pretreatment Violations (Ordinance or Permit)
Industrial User Files Answer Admitting or Denying
Allegations
Trial Date Set
Discovery Process Involving Control Authority and
Industrial User
/ If Successful = Consent Decree
Settlement Negotiations
^ If Unsuccessful = Proceed to Trial
Trial
If Industrial User Held Liable,
^^ Court Awards Cost Recovery
Verdict and/or Civil Penalties
If Industrial User Not Held Liable,
Appeals
FIGUKE 5-4.1
5.4-7
-------
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
decree.
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.
5-4.8
-------
CRIMINAL PROSECUTION
-------
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
misdemeanors.
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.
5-5.1
-------
CIVIL LITIGATION VS.
CRIMINAL PROSECUTION
Significant Violation
Circumstances
Evidence of Noncompliance
POTW Damage
- Physical
- Emergency Expenses
- NPDES Fines
NPDES Violation
Continuing Violation
Circumstances
Evidence of Willfulness
Evidence of Negligence
Bad Faith Shown by
Industrial User
SUO Only Provides for
Misdemeanors
CIVIL LITIGATION
CRIMINAL PROSECUTION
FIGURE 5-5.1
5-5.2
-------
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
orders)
Violations of regulations which implement general grants of authority in the
ordinance
Failure to notify the Control Authority of unauthorized discharges (such as slug
loads).
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
5-5.3
-------
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
prosecution.
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
5-5.4
-------
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)
5-5.5
-------
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.
5-5.6
-------
CRIMINAL PROSECUTION
1. Control Authority Receives Information of Criminal
Activity
2. Control Authority Gathers Evidence of Criminal
Activity
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
5-5.7
-------
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
5-5.8
-------
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
5-5.9
-------
TERMINATION OF SEWER SERVICE
-------
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
ordinance.
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
injunction).
5-6.1
-------
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
destroyed).
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
plant
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
intent.
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
5-6.2
-------
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
connection.
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
5-6.3
-------
CONTENT OF NOTICE OF
TERMINATION OF SERVICE
(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
5-6.4
-------
CITY OF ORLANDO
SUSPENSION OF WASTEWATER SERVICE ORDER
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
5-6.5
SAVC CONSERVE WATER AND REDUCE WASTE WATER
-------
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.
5-6.6
-------
SUPPLEMENTAL
ENFORCEMENT RESPONSES
Hflje Ctntes
Tim frfimam
- ACtRMIJ
-------
5.7 SUPPLEMENTAL ENFORCEMENT RESPONSES
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
system.
5-7.1
-------
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
5-7.2
-------
H/834-03-035-01c/#7
TABLE 5-7.1. SUPPLEMENTAL RESPONSES FOR WHICH
SPECIFIC LEGAL AUTHORITY IS
NECESSARY
Public Notices
Water Service Teraiination
Performance Bond/Liability Insurance
Contractor Listing Program
TABLE 5-7.2. SUPPLEMENTAL RESPONSES FOR WHICH
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
5-7.3
-------
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.
5-7.4
-------
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
compliance.
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
5-7.5
-------
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
noncompliance.
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.
5-7.6
-------
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).
5-7.7
-------
APPENDIX A
GLOSSARY OF TERMS RELEVANT TO ENFORCEMENT
ABSOLVE - To excuse; to free from an obligation or the consequences of guilt or
liability.
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
court.
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
enforcement.
ARBITRARY OR CAPRICIOUS ALLEGATION - An assertion that Ğ 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.
A-1
-------
COMPLIANCE SCHEDULE - A schedule of required activities (also called milestones)
necessary for an industrial user to achieve compliance with all preueatmem program
requirements.
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
follow).
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
Authority.
FELONY - A crime punishable by imprisonment for greater than one year (depending on
State law).
ğ FEES - A schedule of charges imposed to reco\rr treatment costs (not punitive in
nature).
A-2
-------
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
powers,
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.
NPDES (NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM) - A permit
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.
A-3
-------
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
industry.
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
case.
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
user.
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
requirements.
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
occurred.
STATUTE OF LIMITATIONS - A law which prescribes the period within which an
enforcement action may be pursued by the Control Authority.
A-4
-------
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
user.
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.
A-5
------- |