s
5543 810R86101
NATIONAL GUIDANCE
FOR
OVERSIGHT OF NPDES PROGRAMS
FY 1986
BACKGROUND
The Clean Water Act (CWA) authorizes EPA and approved States
to administer the National Pollutant Discharge Elimination System
(NPDES) Program, which is the basic regulatory mechanism for
ensuring that dischargers meet the requirements of the CWA. There
are currently 37 approved State NPDES programs, 21 of which also
are approved to administer the pretreatment program. EPA retains
the lead responsibility in the balance of the States, but shares
many of the implementation functions of the NPDES program in a
partnership arrangement with State agencies.
EPA has continuing overall responsibility for implementation
or oversight of the NPDES program in all States—approved or not
approved—in order to promote the achievement of national program
goals and objectives, to ensure adherence to Federal and State
statutory and regulatory requirements implementing the CWA, and to
maintain reasonable national consistency. This guidance provides
a set of criteria for evaluating and overseeing NPDES programs;
the criteria also provide a basis for Regions and States to negotiate
annual agreements and/or work plans. The document!
* Defines the major elements of a sound NPDES program;
230 South Dearborn Street
Chicago, Illinois 60604
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0 Outlines high priority achievements for FY 1986;
0 Clarifies how the Region and States should translate specific
program goals and performance expectations into annual
grant agreements and/or work plans; and
0 Defines the respective roles and responsibilities of the
EPA Regions and States in carrying out the NPDES program,
as well as areas where there is a need for further definition
of roles in the individual State agreements.
PURPOSE AND SCOPE
This guidance is a program-specific document for use in
FY 1986. It must be used in conjunction with the "Policy Framework
for State/Federal Enforcement Agreements" (issued June 24, 1984) and
the May 20, 1985 memorandum from the Deputy Administrator, "Guidance
for the FY 1986 State/EPA Enforcement Agreement Process". These
documents contain the Agency's guidelines for all enforcement
programs. The "Policy Framework" covers both the process and the
substance of the Regional/State agreements, and, unless otherwise
specified in this document, the national policy will apply.
This guidance establishes criteria for the NPDES program
including permit issuance and reissuance, compliance monitoring,
enforcement and pretreatment. It is intended to be used as a
framework, with the Regions and the States supplying the details
for their individual agreements and/or work plans based on current
Federal regulations, national policy and guidance documents, and
State priorities. In reviewing, and, where necessary, updating
oversight agreements, the Regions and States should also use the
Protection Agency]
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FY 1986-1987 Agency Operating Guidance, the FY 1986 Strategic
Planning and Management System, and the FY 1986 Office of Water
Evaluation Guide, which set forth national priorities and performance
expectations. To the extent possible, all requirements for plans
and strategies cited in this guidance should be consolidated into
existing work plans and/or State EPA agreements.
Fully-functioning NPDES programs are required to permit all
dischargers, both major and minor, and to conduct appropriate
compliance assessment and enforcement activities for all permittees.
EPA and many approved States have a substantial backlog of expired
municipal and industrial permits and permits which need to incorpo-
rate new requirements for controlling toxic discharges. Consequently,
this guidance emphasizes completing issuance and reissuance of
major industrial and major municipal permits in FY 1986 and then
reissuing timely, high quality permits as they expire; in FY 1986,
administering agencies will also begin to eliminate the backlog of
expired permits for environmentally significant minors. To aid
permitting of minors, States may wish to seek authority for general
permit issuance. The guidance also places priority on rapid
response to instances of significant noncompliance, especially by
major dischargers. As resources allow, administering agencies1
should also address minor dischargers of concern and other instances
of noncompliance. In the longer-term, the concepts in this guidance
1. The term "administering agency" refers to EPA Regions and
approved States that administer the NPDES/pretreatment programs,
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Finally, in response to PIRT, this guidance addresses
oversight of administering agency pretreatment programs.2 The
coverage in the present guidance focuses on pretreatment program
approvals (State and local), modification of NPDES permits to
incorporate local program requirements, implementation of approved
programs, establishment of general oversight of approved State
programs including oversight of compliance monitoring, and enforce-
ment response to violations by POTWs of pretreatment requirements
in NPDES permits that appear on the Quarterly Noncompliance Report
(QNCR), as well as to violations by industrial users.
ELEMENTS AND CRITERIA FOR THE NPDES OVERSIGHT PROGRAM
There are three operational elements of the NPDES program that
should be addressed in an effective Regional/State agreement and
oversight program: permitting, compliance monitoring, and enforcement
response. There is also a need to ensure the ongoing integrity of
State NPDES programs, as well as their ability to achieve the goals
and objectives of the CWA. One aspect of this concern is adequate
data management in the NPDES program.
The Agency has developed a general set of oversight criteria
for all compliance and enforcement programs.3 This program-specific
2. The Pretreatment Implementation Review Task Force, which advised
the EPA Administrator on needed improvements in the pretreatment
program, has recommended that EPA better define the roles and
responsibilities of Federal, State and local governments.
[Guidance on pretreatraent program oversight is included in this
document and additional guidance on program implementation is
under development.]
3. See "Policy Framework for State/EPA Enforcement Agreements,"
June 24, 1984 and the Deputy Administrator's "Guidance for the
FY 1986 State/EPA Enforcement 'Agreements' Process," May 20, 1985,
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document provides guidance on how to use these criteria, as well as
additional criteria related to permit issuance and the pretreatment
program, to evaluate and oversee the operational elements of the
NPDES program and to negotiate individual agreements and/or work
plans with each State. Such agreements should take into account the
unique circumstances, legal authorities and resources of each State
NPDES program.
I. Permitting
The CWA (§402) calls for EPA or approved States to issue
permits for the discharge of any pollutant or combination of pollu-
tants. These permits are enforceable documents that contain specific
discharge limitations, as well as conditions on data and information
collection, reporting, and other requirements that the administering
agency deems appropriate. The overall integrity of the NPDES
program is, therefore, inextricably linked to the quality and
timeliness of the permits that are issued by EPA and the NPDES
States.
Evaluation and oversight of permit programs should be based on
the following criteria:
° Clear identification of the regulated community as
evidenced by the existence and use of;
Established procedures for maintaining a complete,
accurate, and up-to-date automated data system that
includes all sources that are covered by or have applied
for NPDES permits: The administering agency should
maintain a current inventory of all permit holders and
applicants. States should enter current permit data
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into the Permit Compliance System (PCS, the automated
NPDES data base) in a timely manner consistent with the
procedures in the Enforcement Management System (EMS).
Where a State is not a regular user of PCS and does not
have an automated system that is compatible with PCS,
it should supply the data to the Region in a form that
facilitates EPA's entry of the data into PCS. The
administering agency should also maintain up-to-date
files on individual permittees, and should have a
process for identifying dischargers that are required
to apply for but have not applied for permits and for
following through as necessary in such cases.
— Permit data that are complete, accurate and up-to-date;
The Region is responsible for conducting periodic
audits to verify that each approved State is maintain-
ing current permit files and data in PCS consistent
with its prescribed procedures; the Region should also
conduct periodic audits in cases where an unapproved
State is writing draft permits in a partnership arrange-
ment with the Region.
0 Development and timely issuance of high-quality permits and
permit modifications as evidenced by the existence and use
of:
— An up-to-date permit issuance list and strategy by
State that guides permit issuance/modification consis-
tent with national priorities and assures that backlogs
do not develop: It is the responsibility of the adminis-
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*->
tering agency to develop a strategy and an annual
permit issuance list of priority permits, in FY 1986,
the priority list should include, as a minimum, all
major industrial and major municipal permits, including
major Federal facilities, to be issued or modified to
reflect new effluent limits. Both the strategy and the
list should be designed to eliminate any existing
backlog and to ensure that new backlogs do not develop.
In addition to major permits, the strategy should also
address any substantial backlog of minor permits,
especially those assigned a high priority due to water
quality impacts and State and/or Federal funding (i.e.,
P.L. 92-500 minor facilities and minor Federal facilities
that have the potential for significant water quality
impacts). The list should specify the priority permits
to be issued/modified during the fiscal year (by name
and type) consistent with national and State permitting
priorities and the FY 1986-1987 Operating Guidance.
The list may be modified periodically to ensure that it
reflects changing conditions throughout the year. At
the time the list is developed, the Region and State
should agree on procedures for modifying the list, as
well as the role of EPA and the State in the permitting
process.
Permits that contain appropriate, clear and enforceable
requirements: The administering agency has the
responsibility to ensure that individual permits are
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consistent with the requirements in the regulations
(NPDES, Secondary Treatment, and effluent guideline
regulations), as well as current national policy, and
that permits contain clear and enforceable provisions.
Where the State is the administering agency, the Region
should identify the specific State permits it plans to
review prior to issuance/modification in accordance
with applicable Federal regulations, and should target
those specific types of priority permits that require
early coordination prior to draft permit issuance. The
State should submit copies of draft and final permits
consistent with the NPDES regulations (40 CFR S123),
and the Region should conduct periodic audits of permit
quality, where EPA is the permit issuing authority,
the Region should coordinate with the State to assure
timely review and certification of permits in accordance
with the CWA (S401).
0 Approval, implementation and overview of high-quality
pretreatment programs as evidenced by the existence and
use of;
— A current strategy and procedures for completing
approval of remaining and newly identified pretreatment
programs; The agency administering the pretreatment
program (i.e., approved States or EPA Regions) is
responsible for implementing its FY 1985 written
strategy for the review and approval of required local
pretreatment programs and to identify, complete review,
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approve and disapprove as appropriate, any remaining
required local pretreatraent programs consistent with
the regulations and national policy and guidance. The
procedures should address the modification of POTW
permits to: 1) incorporate a schedule for local program
development where a POTW is newly identified as needing
a pretreatment program; and 2) incorporate approved
local programs and related conditions/ including
reporting.
A current strategy and procedures for overviewing
local pretreatment programs; The agency administering
the pretreatment program is responsible for effective
overview of approved local programs. The administering
agency should have a current overview strategy and
procedures for: 1) evaluation of local limits to assure
that local limits are revised as needed to protect
treatment works, prevent interference with sludge
disposal, and protect receiving water quality (including
toxic organics, metals and conventional pollutants);
2) assessing the adequacy of industrial waste surveys,
local legal authorities (including interjurisdictional
agreements), local implementation mechanisms (e.g.,
permits or contracts) and compliance monitoring procedures
and practices; and 3) ensuring that control authorities
are conducting timely and appropriate reviews of baseline
monitoring reports (BMRs). The administering agency's
overview procedures should include provisions for
reviewing POTW reports and conducting periodic audits
of control authorities.
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A current strategy4 and procedures for direct
implementation where needed; The agency administering
the pretreatment program should have a current strategy
and implementation procedures for situations where it
directly implements a pretreatment program when a
municipality has failed to complete an approvable
program. Additionally, where there are categorical
industries discharging to POTWs that are not required
to develop local pretreatment programs, a plan for
identifying and regulating these dischargers should be
included in the strategy. Finally, the strategy should
address how the administering agency will implement all
other pretreatment authorities reserved to it. For
example, in those few States where the State is approved
to implement pretreatment and regulates all of the
affected dischargers, the State must have a plan for
permitting indirect dischargers, establishing local
limits, maintaining an adequate inventory, and otherwise
assuring effective pretreatraent.
Review/audit procedures that are effective in overviewing
States that are directly implementing part or all of
the pretreatment program: Where States regulate all or
some of the affected indirect dischargers, the Region
will evaluate the- State's performance in permitting
4. The various pretreatment strategies referred to in this subelemei
may be combined into one overall pretreatment strategy.
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indirect dischargers, establishing local limits,
maintaining an adequate inventory, reviewing and
responding to BMRs and otherwise assuring effective
pretreatment.
II. Compliance Monitoring
The EPA Regions and NPDES States must maintain records and
develop procedures for conducting accurate.and reliable review and
evaluation of permittee self-monitoring reports, as well as inspec-
tion of permittees (including industrial users that discharge to
POTWs with approved pretreatment programs wherever resources allow);
the administering agency should assume primary responsibility for
these activities. These activities are essential to maintaining
the overall integrity of the NPDES permit program and for identifying
instances of noncorapliance so that the administering agency can
initiate appropriate and timely action as needed. The administering
agency should also have an established compliance monitoring program
that incorporates the requirements of the NPDES regulations, as
well as the appropriate principles and supporting attachments of
the most current Enforcement Management System (EMS).
Evaluation and oversight of compliance monitoring programs
should be bas«d on the following criteria:
• Timely receipt and review of accurate and complete self-
monitorinq reports, and maintenance of complete and accurate
records as evidenced by the existence and use oft
— Established procedures and time frames for review of
DMRSr and maintenance of complete and accurate data;
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The administering agency should receive and review all
Discharge Monitoring Reports (DMRs) and POTW pretreatmer.t
program implementation reports for accuracy and complete-
ness, and should assure that permittees are complying
with their permit requirements. The administering
agency should enter the data for major permittees into
PCS within 30 days of receipt of the DMR. Where a
State is not a regular user of PCS, it should enter the
data into its own automated system and transfer the
data into PCS, or it should provide the data to the
Region in a form that facilitates EPA's entry into PCS
(e.g., on preprinted DMR forms, conversion tape, etc.).
Response to nonreceipt or unacceptable DMRs should be
consistent with the time frames in the regulation and
the EMS; failure to submit or unacceptable DMRs within
30 days of the required date are instances of significant
noncompliance for major permittees.
— Data that are accurate, complete and up-to-date;
The Region should verify that each NPDES State is
exercising its responsibilities properly through routine
reviews of a random sample of DMRs and PCS entries
during periodic audits of the State program.
0 Maintenance of a reporting system that contains accurate,
up-to-date, accessible information on current compliance
status:
— Established procedures and time frames for submittal of
QNCRs and maintenance of data: The administering agency
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roust prepare and submit its Quarterly ttoncorapliance
Reports (QNCRs) consistent with the requirements and
time frames in the NPDES regulation and national guidance
To the extent PCS allows, the administering agency
should prepare the QNCR automatically by using DMR data
and other data that are entered into PCS.
— QNCRs and data systems that are accurate, complete, and
up-to-date; The Region is responsible for verifying
the accuracy and completeness of both the QNCRs and the
data in PCS. Where a State is not a regular user of
the national data system (PCS), the Region should
actively encourage full participation at the earliest
possible date, including giving priority in assistance
and program grant funding to States that are direct
users of PCS.
0 Timely conduct of appropriate and effective compliance
inspections as evidenced by the existence and use of;
— Established procedures within the annual plan for
conducting compliance inspections; The administering
agency should have established procedures for conducting
routine and special inspections as part of its annual
Compliance Inspection Plan. The plan and procedures
should be consistent with the EPA Compliance Inspection
Manual and the NPDES Compliance Inspection Strategy
and Guidance, and should contain clear criteria for
selecting candidates for the appropriate mix of routine
and special compliance inspections. The procedures
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should also outline the basic requirements and time
frames for completing reports on inspection findings
and for entering the data into PCS wherever possible.
Where the State is not a regular user of PCS, it should
enter the data into its own automated system and transfer
the data into PCS, or it should provide the data to the
Region in a form that facilitates EPA's entry into PCS
(e.g., EPA Form 3560-3 or State equivalent form that
contains the same data elements as Form 3560-3). The
Region and State should agree in advance to establish
quarterly a list of facilities that are to be inspected
(including joint and independent EPA and State inspections
and to assess the status of the annual plan at established
intervals throughout the year. The Region should also
agree to provide prior notice to the State before
conducting joint or independent inspections, and to
supply the State with at least serai-annual reports of
its findings (mid-year and end-of-year); the State
should be apprised of major problems as soon as they
are discovered.
Inspections that are conducted in an effective manner;
The administering agency is responsible for conducting
sampling and analysis in the prescribed manner, completing
the required reports on findings within established
time frames, and for ensuring the entry of the data
into PCS. The Region should participate in an appro-
priate number of joint inspections with the State and
maintain an independent inspections program in order
to carry out its enforcement and overview responsibilitie
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and should conduct periodic random audits of inspection
reports and case files. The administering agency is
also responsible for taking proper action in cases
where permittees fail to respond to DMR Quality Assurance
(QA) requirements, and for initiating appropriate
follow-up to DMR QA test results. NPDES States should
specifically identify the need for the Region's assis-
tance or support from EPA contractors, as well as the
type and level of assistance required.
0 Effective integration of pretreatment compliance
monitoring activities into the established NPDES program
as evidenced by the existence and use of;
— Established procedures and time frames for effective
monitoring of local pretreatment programs. The
administering agency should have procedures and time
frames for: reviewing monitoring reports, including
annual reports submitted by POTWs and semi-annual
reports submitted by categorical users in areas
without local programs; establishing and maintaining
a complete inventory of POTWs with pretreatment pro-
grams, as well as a plan for completing an inventory
of all categorical users and significant industrial
users; and conducting annual inspections of POTWs
with approved programs, as well as industrial users
to the extent resources allow.
— Routine monitoring that is conducted in an effective
manner; The administering agency is responsible for
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monitoring local pretreatment programs consistent
with established procedures and time frames, including.
review of POTW and industrial reports to assure
compliance with local limits and categorical standards
updating of inventories; annual inspection of
all POTWs with approved programs, and to the extent
resources allow, inspection of industrial users.
(To make effective use of resources, annual POTW
pretreatment inspections should be part of the normal
NPDES inspection of POTWs and may be phased in during
FY 1986.)
Ill. Enforcement Response
The CWA (§309) requires EPA or NPDES States to respond to
NPDES permit violations by initiating the appropriate enforcement
action(s)? the administering agency should assume primary responsi-
bility for these activities. Enforcement response involves a
series of actions, starting with the initial reaction to the
identification of a violation and ending with the discharger's
return to full compliance and close-out of the action.
NPDES approved States should have compliance and enforcement
procedures that are consistent with the Enforcement Management
System (EMS). Regions should follow the procedures established in
that system. These procedures include screening and assessing the
significance of the initial violation, translating compliance
information into the appropriate enforcement response in a timely
manner/ and entering instances of noncompliance into the permittee's
permanent record.
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Evaluation and oversight of enforcement programs should be
based on the following criteria:
o Timely evaluation and appropriate initial response to
identified violations as evidenced by the existence and
use of;
— Established pre-enforcement procedures that set fortji
criteria for evaluation and appropriate initial
responses to identified violations; The administering
agency should have current pre-enforcement procedures
that are consistent with the principles in the EMS.
The procedures should include: a violations review
process and criteria for screening DMRs to determine
the significance of the violation; procedures and time
frames for applying appropriate initial response
options to identified violations; and procedures and
time frames for maintaining a chronological summary
of all violations.
— Enforcement responses that are timely and appropriate;
The administering agency should: screen all DMRs from
permittees to determine the level and frequency of any
violation, and specifically evaluate instances of
non-compliance by major permittees and P.L. 92-500
minor permittees^ within an average of 30 days from
the identification of a violation; determine the
appropriate response; and document any action taken/
not taken (including the technical reason). The date
of identification of the violation is the point at
5. Other minor permittees should be evaluated as resources permit
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which the organization responsible for compliance/
enforcement learns of the violation; an appropriate
response is one that results in the violator returning
to compliance as expeditiously as possible. The
Region should verify the timeliness and appropriateness
of a State's DMR evaluation and its initial responses
through periodic audits.
0 Timely and appropriate enforcement response, follow-up
and escalation until compliance is obtained as evidenced
by the the existence and use of;
— Established enforcement response procedures that are
appropriate and timely; The administering agency
should have current enforcement response procedures
that are consistent with the EMS, as well as an
up-to-date strategy for addressing instances of
significant noncompliance consistent with national and
State priorities. The procedures should set forth: an
analytical process for determining the appropriate
level of action for specific categories of violation;
procedures for preparing and maintaining accurate and
complete documentation that can be used in future
formal enforcement actions; and time frames for
escalating enforcement responses where the noncompliance
has not been resolved. Additionally, the administering
agency should have a plan for placing all noncomplying
municipalities on enforceable schedules to achieve
compliance by the July 1, 1988 statutory deadline.
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— Enforcement actions (Administrative Orders and judicial
actions) that are initiated in a timely fashion and
contain clear and enforceable requirements; The adminis-
tering agency should be able to demonstrate that its
enforcement procedures result in: appropriate initial
and follow-up enforcement actions that are applied in
a uniform, consistent and timely manner; formal enforce-
ment actions (as defined by State agreements) that
clearly define what the permittee is expected to do by
a reasonable date certain and the assessment of a civil
penalty/ when appropriate, and an amount appropriate to
the violation; and compilation of complete and accurate
permanent records that can be used in future formal
enforcement actions. In the case of major permittees,
by the time a permittee is identified on the QNCR and
determined to be in significant noncompliance based on
the definition to be provided in Guidance, the adminis-
tering agency is expected to have already initiated
enforcement action to achieve compliance. Prior to a
permittee appearing on the subsequent QNCR for the same
instance of significant noncompliance, the permittee
should either be in compliance or the administering
agency should have taken formal enforcement action
(generally within 60 days of the first QNCR) to achieve
final compliance.^ In the rare circumstances where
A formal enforcement action is defined as one that requires
actions to achieve compliance, specifies a timetable, contains
consequences for noncompliance that are independently enforce-
able without having to prove the original violation, and subjects
the person to adverse legal consequences for noncompliance (see
Policy Framework of June 24, 1984, for details). Specific action
qualifying as appropriate will be defined in State/EPA enforcemen
agreements.
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formal enforcement action is not taken, the adminis'terinc -
agency is expected to have a written record that clearly
justifies why the alternative action (i.e. informal
enforcement action or permit modification) was more
appropriate. The Region should verify the timeliness
and appropriateness of a State's enforcement actions
through periodic audits.
0 Effective integration of pretreatment enforcement
activities into the established NPDES program as evidenced
by the existence and use of;
— Established enforcement response procedures that are
appropriate and timely; The administering agency
should have procedures and timeframes for initiating
appropriate enforcement action where POTWs: fail to
meet milestones in enforceable schedules for submitti
approvable pretreatment programs; have violations
of NPDES effluent limitations; fail to implement
approved pretreatment programs; and fail to submit
or submit delinquent annual reports. The administering
agency should also have procedures for evaluating
whether POTWs are initiating appropriate enforcement
responses to significant violations by lUs; and
where POTWs are not the primary control authorities,
administering agencies are directly responsible for
having these procedures in place for categorical and
non-categorical industrial users.
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Enforcement actions that are initiated in a timely
manner; The administering agency is expected to
initiate enforcement response against permittees
with pretreatment programs that are listed on the
QNCR and are in significant noncompliance consistent
with the criteria and timeframes for the NPDES
program (page 28); this applies to: failure to meet
milestones in enforceable schedules for submitting
required local pretreatment programs and for
implementing that program; violations of effluent
limits; and delinquent POTW pretreatment reports,
including removal credits reports. In addition,
administering agencies should conduct inspections
of local pretreatment programs to ensure that POTWs
comply with their approved program procedures for
taking action against significant violations by lUs.
A significant violation is one that: remains
uncorrected 45 days after notification of noncompliance
which is part of a pattern of noncompliance over a
twelve month period; which involves a failure to
accurately report noncompliance; or which resulted
in the POTW exercising its emergency authority
(40 CFR 403.8(f)(2)(vii)). At a minimum, the POTW
should provide for annual public notification of
such violations in the largest daily newspaper
published in the municipality in which the POTW is
located. Also, where POTWs are not the primary
control authorities/ administering agencies should
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initiate appropriate enforcement actions in accordance
with their procedures against industrial users who
are violating categorical standards.
0 Timely and appropriate initial response and enforcement
follow-up by EPA Regions to violations by Federal
facilities as evidenced by the existence and use of;
— Established procedures that include the appropriate
use of the compliance agreement process in lieu of
administrative orders; The EPA Regions should use
the compliance agreement process in lieu of an
administrative order as the initial approach to
resolving noncompliance with NPDES permit conditions
by a Federal facility.7 Where such an approach does
not result in expeditious compliance, the Region
should have procedures for escalating the response
which may include issuance of a Federal administrative
order and, thereafter, according to the document:
"Resolution of Compliance Problems at Federal
Facilities" (Yellow Book, pg.15-17).8 Where a State
has been approved to administer the Federal facility
portion of the NPDES program, the basic enforcement
responsibility rests with the State, which should
have its own established terms and procedures for
dealing with noncompliance by Federal facilities.
7. A Federal facilities compliance agreement counts as a formal
enforcement action in the SPMS system as noted in the March,
1985, Guide to the Office of Water Accountability System and
Mid-Year Evaluations (pg.B-20).
8. An Agency Workgroup has been formed to revise the "Yellow Book"
and is scheduled to have revisions completed by the end of
calendar 1985.
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-- Compliance agreements that are concluded in a timely
manner and result inexpeditious resolution of the
noncompliance; The Region should be able to
demonstrate that it uses the established compliance
agreement process in a manner that resolves non-
compliance expeditiously. Where agreement cannot
be reached in a timely manner or does not result in
expeditious compliance, the Region should be able
to demonstrate that it escalates its response in a
timely and effective manner consistent with its
established procedures. State response to instances
of noncompliance by Federal facilities should be
evaluated based on the terms and procedures set out
in the State/EPA enforcement agreement.
OVERALL PROGRAM AUTHORITIES AND MANAGEMENT
Under §§402(c)(2) and 304(i)(2) of the CWA, EPA has the
obligation to ensure that approved NPDES State programs continue to
meet minimum statutory and regulatory provisions in terms of legal
authority, procedures, funding, resources and personnel qualifications
In addition, EPA has a responsibility to examine State NPDES programs
periodically to assess their demonstrated progress in carrying out
the basic goals and objectives of the Clean Water Act and in achieving
results.
Evaluation and oversight for overall program management should
be based on the following criteria:
0 Adequate statutory and regulatory authority to administer
the Federal NPDES program; The Region should ensure that,
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in accordance with the CWA and the NPDES regulations
(40 C.F.R. §123.62(e)), approved State programs are revised
as necessary to reflect changes to Federal statutory ani
regulatory requirements, and that modifications to approved
State programs conform to the NPDES regulations. Any
modifications to approved programs that are needed as a
result of changes to Federal legal requirements must be
completed within one year of promulgation of the changed
Federal requirements when changes to State regulations)
are needed and within two years when changes to State
statute(s) are needed. In addition, any proposed revisions
to any State legal authorities must be submitted to EPA
for review and approval.
The Region is responsible for assessing each approved
State's statutory and regulatory authority, as well as the
adequacy of its funding and staff qualifications to
administer the NPDES program, and for initiating appropriate
and timely follow-up action as needed when deficiencies
are identified. The Regions should request that each
State perform an evaluation of its legal authorities and
submit its analysis to EPA. The Region should conduct a
complete review of the statutory and regulatory authority
for all NPDES State programs by the end of FY 1986, and
should conduct regular assessments thereafter, as needed.
To the extent possible, Regions will conduct these State
reviews after the State's self-evaluation has been received;
however, receipt of the State's self-evaluation is not a
prerequisite to EPA review of legal authorities where a
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State's legal authority has already been identified as
already been identified as deficient. Regions should
promptly notify the State of the need for corrective action.
The State should correct any deficiencies identified in
its self analysis or identified by EPA. In addition, the
Regions should consider program withdrawal proceedings or
sanctions provided for by the "Policy on Performance-Based
Assistance" in appropriate cases where the NPDES State has
failed to request authorization for the pretreatment
program by FY 1986. Regions will also continue to work
with other States to promote full NPDES program approval.
0 Demonstrated ability to set program priorities and to
carry out the NPDES program in an effective manner;
In addition to evaluating the administering agency's
performance in carrying out its operational responsibilities
as set forth earlier in this guidance, the agency's overall
effectiveness should be assessed based on its demonstrated
progress towards achieving the goals and objectives of the
CWA. Listed below are four goals, which, if achieved,
would provide sound evidence that the administering agency
is managing the operational aspects of the NPDES program
with positive results:
— Demonstrated ability consistently to issue timely,
high-quality permits; The administering agency's
permit program should be assessed based on its perfor-
mance in issuing, reissuing and modifying permits to
eliminate any existing backlogs consistent with national
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priorities and tine frames, and in avoiding the develop-
ment of new backlogs of expired or unissued permits,
especially major permits. As general goals, permit
programs should strive to assure that: the permit
backlog remains consistently below 10 percent of all
permittees; all permits reflect BAT/BCT based on promul-
gated guidelines or BPJ, or water quality limits, as
appropriate; and/or all water quality problems (including
toxics problems) attributable to point source dischargers
are adequately addressed by requirements in permits
which, if met, would eliminate the problems. In
assessing whether this goal has been achieved, it may
be appropriate to review a State's Continuing Planning
Process and other procedures to assure proper coordina-
tion among water quality standards, wasteload allocation
and permit issuance activities.
Demonstrated ability to consistently establish and
oversee local pretreatment programs and to fully and
effectively implement all pretreatment authorities
reserved to the State; The administering agency's
effectiveness should be assessed in terms of its perfor-
mance in establishing all required local pretreatment
programs, overseeing implementation of these local
programs following approval, and, where appropriate,
directly implementing the program, including permit
issuance or equivalent control for industrial users,
establishment of local limits, and appropriate compliance
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monitoring and enforcement activities. The overall"
adequacy of local programs and pretreatment-related
conditions in municipal permits should be evaluated,
preferably based on an on-site audit, no later than one
year after local program approval and at the time of
permit reissuance thereafter. Where an NPDES State
does not yet have the authority to administer the
pretreatment program, the State should be evaluated
based on its performance of those activities for which
it has agreed to assume a responsibility prior to
program approval.
Demonstrated ability to initiate appropriate and timely
enforcement actions against noncompliers; The adminis-
tering agency's enforcement program should be assessed
based on its performance in taking appropriate and
timely enforcement responses, especially against
permittees that are in significant noncompliance and
against municipalities that are not in compliance with
the statutory requirements of the CWA consistent with
the National Municipal Policy (NMP). As a general
goal, the administering agency should strive to take
appropriate formal enforcement responses against 100
percent of its significant noncompliers before they
appear on two consecutive QNCRs for the same violation
(generally within 60 days of the first QNCR with
identified SNC violations) if the permittee has not
returned to compliance. Administering agencies will
continue to place all noncomplying municipal dischargers
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on enforceable schedules in accordance with the National
Municipal Policy and Guidance, and enforce these schedule^
vigorously. Enforceable schedules (including interim
milestones) for any municipal dischargers that were not
completed by September 30, 1985, should be set as soon
as possible. All other instances of noncompliance
should be addressed consistent with the procedures and
time frames in the administering agency's EMS.
— Demonstrated progress in achieving high or improving
rates of continuing compliance; The administering
agency's compliance and enforcement efforts should be
assessed based on its historical compliance trends in
terms of the percentage of permittees in significant
noncompliance. Annual goals should be set on a case-
by-case basis, and should be based on the administering
agency's current compliance rate plus a percentage
improvement. Where the administering agency is below
the goal, it should develop an achievable plan for
making progress towards the goal over a reasonable
period of time.
PROCESS FOR CONDUCTING OVERSIGHT OF STATE NPDES PROGRAMS
Based upon the general criteria outlined in this document, as
well as the specific annual goals and priorities in the FY 1986-
1987 Agency Operating Guidance, the Regions and States should
negotiate individual agreements that clearly define performance
expectations for the NPDES program, as well as the respective roles
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and responsibilities of the Region and the State in administering
the NPDES program. These may be separate agreements between the
Region and the State, and/or part of the overall 5106 work program
\>r State/EPA agreement processes. In either case, the agreement
should reflect the principles of the "Policy on Performance-Based
Assistance" issued on May 31, 1985 by the Administrator.
The agreements should contain requirements for key outputs,
which the Region should audit periodically based on the specific
arrangements contained in the'agreements. The Region should supply
the State with written reports of its audit findings, and should
make specific recommendations and suggestions for program improve-
ments; the Region should discuss major problems with the State as
soon as they are discovered.
The Region should tailor the level and the frequency of its
audits to the State's overall performance in each specific program
area. States that have consistently demonstrated their ability to
adhere to or to exceed national program goals and priorities and to
meet or to exceed national performance expectations may be audited
less frequently (annually) and/or less extensively; other States
may receive more frequent and/or more detailed audits by the Region.
Where a State exhibits continued poor performance/ the Region
should make recommendations for changes and should take other
action(s) as appropriate.9 The criteria and goals in the earlier
sections of this guidance provide the Region with a general baseline
for determining the proper level and frequency of oversight of a
State NPDES program.
9. See the "Policy Framework" and the Deputy Administrator's
May 20, 1985 Memorandum for details*
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The Region should conduct a comprehensive assessment of thy*
operational elements of each State NPDES program at least once a
year prior to the Office of Water mid-year evaluation. This review
may be a summary of the results of the periodic program evaYuations
that were performed during the year, and should provide the State
with an opportunity to explain its activities and progress in areas
of its NPDES program that are not directly related to national or
Regional goals and priorities. At the conclusion of the annual
review, the Region should supply the State with a written report
that outlines the State's accomplishments and areas where improvement
is needed, as well as any agreements that were reached on resolving
problems that were identified during the review.
CRITERIA FOR DIRECT FEDERAL ENFORCEMENT
Under State delegation, EPA has the right to initiate an
enforcement action in a State. The Region and State should have a
process for notice and consultation with the State prior to initiating
direct EPA enforcement action. The process should include a discus-
sion between the Region and State with respect to the circumstances
surrourfding the specific noncompliance situation and the appropriate
enforcement response. Such procedures can be used to handle Federal
facilities violations where the State might need EPA's assistance
in resolving the noncompliance. Attachment A is a generic outline
for a process that Regions and States might use in determining when
to initiate Federal enforcement action.
Using this advance consultation process, there will often be
cases where the Region and the State reach mutual agreement that
Federal action is more appropriate. EPA may also initiate direct
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*»
Federal enforcement action where the Region determines that Federal
action is necessary because the case meets any of the following
\criteria: legal precedent under national environmental law(s),
unresolved interstate issue(s), or violation(s) of an EPA order or
consent decree; and/or where a Region determines a State has failed
to initiate timely and appropriate formal enforcement action (as
t
prescribed earlier in this guidance).
In all instances/ the Region will adhere to the established
process for advance notice and consultation with the State. The
discussion should include the option of the Region issuing a Notice
of Violation (NOV) to the permittee and the State indicating its
intent to institute formal enforcement action in 30 days if the
State fails to properly enforce and the source fails to return to
compliance, or the option of foregoing the NOV process in favor of
immediate EPA action against the permittee. This should be done
in accordance with State delegation agreements and Memoranda of
Understanding.
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ATTACHMENT A
MODEL
SIGNIFICANT NONCOMPLIANCE ACTION PROGRAM
(SNAP)
MEMORANDUM OF UNDERSTANDING
PURPOSE:
SCOPE:
PROCESS,
SCHEDULING
AND LOCATION:
PREPARATION:
To provide for routine consultation and coordination
of EPA/State enforcement activities, and for EPA
oversight of the State's compliance and enforcement
programs.
The QNCR, furnished by the NPDES State in accordance
with Federal regulations, will serve as one of the
basic mechanisms for coordinating and overseeing
activites involving major permittees. Supplementary
compliance information on P.L. 92-500 minor permittees
will be submitted in accordance with written policy
and guidance from EPA Headquarters (SPMS and OWEG).
At least once each quarter, EPA and the State will
discuss the status of all permittees that appear as
SNC on the QNCR or supplementary submittal. The
discussion should take the form of a meeting wherever
possible. [Note: a conference call may be substituted
where distances are prohibitive]. The meeting will
take place on the work day closest to exactly four
weeks prior to the stipulated State submission date
for the next QNCR. The location of the meeting
will alternate between EPA and a State office.
EPA Regional staff will review the State QNCR, which
must be prepared and submitted in accordance with
Federal Regulations and written policy guidance from
EPA Headquarters. EPA Regional staff will also
review supplementary compliance information on minor
permittees, which should be prepared and submitted
in accordance with EPA guidance and policy.
Six weeks prior to the meeting/ EPA will formally
transmit to the State its detailed comments regarding
items that appeared on the State's preceding QNCR.
EPA's comments should include: the permittee(s) in
question; the State action(s) in question; and the
recommended action to be taken by the State and/or EPA.
U.S. Environmental Protection Agency
Region V, Library
230 South Dearborn Street
Chicago, Illinois 60604
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PREPARATION
(cont.)
\
GROUND RULES:
Three weeks prior to the meeting, the State will
furnish a response to EPA's list of concerns,
including the State's action to obtain the
permittee's compliance.
Two weeks prior to the meeting, the lead individuals
from EPA and the State will agree on the list of
permittees that will be discussed. The list will
include those permittees from the preceding step
that EPA wants to discuss at greater length, as
well as cases where the State is seeking Federal
intervention.
At least one week prior to the meeting, EPA will
prepare the agenda and forward it to the State's
lead individual.
It is understood that no permittee should remain
in SNC for the same violation on two consecutive
QNCRs without: 1) being returned to compliance; or
2) taking formal enforcement action directed at
obtaining sustained compliance.
Discussion of a permittee's noncompliance does not
constitute an action to cause compliance. The
discussion must result in a conclusive, mutual
understanding by EPA and the State of the formal
actions that will be taken by a date certain to
bring about compliance and/or to penalize the
recalcitrant permittee.
Prior to the meeting, all permittees that appear as
SNC on the QNCR will be addressed in the State's
own compliance strategy/tracking system through the
following procedure or one similar to it:
— The State must hold preliminary meeting(s) with
its field offices (if any) to define, clearly
and concisely, the State's strategy for achieving
compliance on a case-by-case basis. The strategy
will include a description of the individual
permittee, the nature of the violation, and the
State's plan for handling each violation. It
will be forwarded to EPA.
— During the meeting(s), ample time must be allotted
for a full, constructive discussion and disposi-
tion of all agenda items.
— As a result of the discussion, the State may
adjust the compliance strategies. Any modifica-
tions will require consultation with the State's
field offices (if any). In such cases, the State
will forward the amended strategies to EPA.
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GROUND The common goal of all parties is to cause permi-t^ees
RULES: to achieve prompt and sustained compliance. There
(cont) may be cases where it is impossible for EPA to agree
with the State's actions to achieve this goal. m
cases where agreement cannot be reached, both E.-^A and
the State should avoid extended debate and should
clearly define the actions that each party intends
to take. Discussion should then move to the remaining
items on the agenda.
Where there are significant differences fA opinion,
EPA and the State should present the divergent view-
points to their respective Directors xiatcediately
following the meeting. The Directors will ultimately
decide the actions to be taken by their respective
Divisions and, as appropriate, will discuss with
each other the decisions.*
PARTICIPANTS: The lead participants will be the Chief/Director
from the appropriate Branches in the EPA and State
offices. It is essential that the same individual
participates in all four meetings held each year
because commitments are made at the meetings. Other
individuals may be asked to participate based upon
the specific issues to be discussed at the meeting,
(technical expertise, Construction Grants, etc.);
EPA and State legal staff may also participate.
The exact participants will be determined when the
agenda is finalized.
MINUTES:
The State will provide the minutes to the EPA lead
individual within two weeks after the meeting.
EPA must submit its detailed comments (if any)
within one week; if no comments are submitted with-
in the allotted time, the minutes will be considered
final. The minutes will describe the actions that
EPA and/or the State expect to take, including
independent EPA action such as issuance of either
NOVs or AOs. For the sake of brevity, the minutes
can reference the submittals received prior to the
meeting.
Director
State Water Program Office
Director
Water Management Division,
U.S.EPA, Region
*Decisions should be escalated to the Division Directors as the
exception rather than the rule.
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