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TABLE OF CONTENTS
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SCOPE AND OBJECTIVES 1
SUMMARY OF FINDINGS 2
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JAN - 4 1990
OFFICE OF
THE INSPECTOR GENERAL
MEMORANDUM
SUBJECT:
FROM?
TO:
Consolidated Report on Audit of EPA's
National Pollutant Discharge Elimination
System Permit Enforcement Program
Audit Report No. E1H28-01-0200-
Kenneth A. Konz
Acting Assistant Inspector G
for Audit
LaJuana S. Wilcher
Assistant Administrator for Water
James M. Strock
Assistant Administrator for
Enforcement and Compliance Monitoring
SCOPE AND OBJECTIVES
We have completed an audit of the National Pollutant Discharge
Elimination System (NPDES) Permit Enforcement Program. We
performed a pilot audit in Region 1 and follow-on audits in
Regions 2, 4 and 5. The audits included reviews of the Regional
offices and the delegated states of Connecticut, Rhode Island,
New York, New Jersey, Georgia, Alabama, Indiana and Ohio. We
performed these audits as part of our internal audit program of
Agency operations and issued separate audit reports for each of
these audits as follows:
Regional Office
Region 1
Region 2
Region 4
Region 5
Boston
New York
Atlanta
Chicago
Audit Report Ho.
E1H26-01-0106-80853
E1HW*8-02-0133-9100476
E1HW08-04-0207-9100462
E1H2D8-05-0293-9100164
Date Issued
3/31/88
9/13/89
9/07/89
1/20/89
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a
CO
Our overall audit objective was to determine the adequacy and
effectiveness of EPA's NPDES enforcement program. The scope of
the audit was limited to the review of enforcement actions taken
on violations of NPDES permits. Our audit samples were drawn
HEADQUARTERS LIBRARY
ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D£ 20460
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from facilities reported to be in significant noncompliance for
extended periods of time. The audits did not include examination
of permit issuances or any other aspects of the NPDES permit
program other than enforcement.
Our specific audit objectives were to determine whether: (1) EPA
regions and the States adequately performed their responsibility
for enforcement and took effective enforcement actions against
those NPDES permit holders violating their NPDES permits; (2) EPA
regions took appropriate actions to ensure that the delegated
States adequately performed their enforcement responsibility; (3)
EPA regions and the States assessed penalties in accordance with
the EPA Civil Penalty Policy; and, (4) the July 1, 1988 deadlines
mandated by the Clean Water Act for achieving secondary treatment
limits and any additional treatment levels necessary to protect
water quality were met.
The audits were performed in accordance with the Standards for
Audit of Governmental Organizations. Programs. Activities, and
Functions issued by the Comptroller General of the United States,
and included tests of the program records and such other auditing
procedures we considered necessary. We evaluated the significant
administrative controls pertaining to issuance and tracking of
enforcement actions, and the monitoring of performance by States
in the enforcement of NPDES permits. The weaknesses disclosed
are noted in the Summary of Findings section of this report and
are more fully discussed in the Findings and Recommendations
section. Nothing came to our attention during the reviews which
would lead us to believe that untested controls were not in
compliance with applicable laws and regulations. The pilot audit
generally covered the period January 1, 1984 through December 21,
1986. The follow on audits generally covered the period from
January 1, 1985 to December 31, 1987. Testing of activities both
before and after the above stated dates were performed where
warranted.
To accomplish our objectives, we interviewed key Federal and
State officials. In addition, we reviewed facility files,
Quarterly Noncompliance Reports (QNCR), Administrative Orders
(AO), Notices of Violation (NOV), and other enforcement actions
taken by the regions and selected State agencies. We also
reviewed the mid-year reviews of the regions performed by the
Headquarters Office of Water, Enforcement and Permits Sections.
SUMMARY OF FINDINGS
The results of our audits of the regional NPDES Enforcement
Programs nationwide consistently yielded the same conclusions:
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1) EPA regional offices and the States had not adequately
discharged their responsibility for enforcement, and had not
taken effective action against all those NPDES permit
holders violating their permits;
2) EPA regional offices had not taken appropriate actions
to assure that the delegated States adequately performed
their enforcement responsibility;
3) EPA regional offices and the delegated States had not
assessed penalties in accordance with the EPA Civil Penalty
Policy; and,
4) the July 1, 1988 deadline mandated by the Clean Water
Act for achieving secondary treatment limits and any
additional treatment levels necessary to protect water
quality standards was not met by many facilities.
EPA had not achieved the implementation of a consistent, uniform
and effective approach to enforcement. While EPA Headquarters
had attempted to establish such a uniform approach through the
issuance of the Enforcement Management System (EMS) Guide and the
promulgation of the National Municipal Policy (NMP), the regional
offices and the States at times were reluctant partners at best.
This is not to imply a lack of concern for the environment, but
rather a lack of resolve oftentimes to take the actions necessary
to effect needed changes. This is especially true of enforcement
cases involving major Publicly Owned Treatment Works (POTWs)
identified as chronic violators.
The EPA regional offices and the States were not always taking
timely, appropriate and effective enforcement actions. The
reasons for this are many and varied. However, there were some
common causes which needed to be addressed, and some which were
specific to certain regions, States or offices. There was a
general reluctance among the regional offices as well as the
States to enforce against POTWs needing construction to achieve
compliance with their NPDES permits. This was due in part to the
lack of enough Federal construction grant funds to fund all
projects. Rather than force a POTW to finance the entire
project, especially when other facilities received Federal
funding, enforcement actions were relaxed in anticipation of
future funding.
There was also a consistent lack of effective oversight of the
States by the regional offices. The impression given was that
once EPA delegated an NPDES program to a State, it was no longer
EPA's program; therefore, EPA shouldn't interfere with the States
except in extreme cases. The regional offices were reluctant to
hold States accountable for inadequate enforcement for two main
reasons. One is that often the regional offices may have agreed
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with the States' philosophy to relax enforcement action in
anticipation of available Federal funding. The other is the
inadequate range of sanctions available to EPA for use on States
not following EPA's requirements.
The regional offices believe their only sanction available
against a State is removal of the delegation of authority for the
State to administer its NPDES program. They are reluctant to use
this except in extreme circumstances, since EPA would then have
to assume all delegated NPDES functions, not just enforcement.
SPA does not have the necessary staffing in the regional offices
to be able to handle the increased workload this would create.
In addition, the programmatic and regulatory roles oftentimes
conflict when dealing with the States, making the decision to
hold the State accountable rather than work with it more
difficult.
Headquarters has contributed to the lack of effective
enforcement. Their emphasis on Strategic Planning and Management
System (SPMS) commitments are based on the number of enforcement
actions, instead of the effectiveness of those actions. When
such goals are established, they do not necessarily encourage
effective enforcement actions. These were consistent problems
nationwide which reflect on the direction and overview of the
regional offices given by Headquarters.
One of the enforcement tools available to EPA to bring facilities
into compliance is the assessment of penalties. EPA was not
using these tools to its fullest extent as a deterrent to
continued noncompliance. Penalties were not being assessed in
conformance with the general enforcement guidance issued by
Headquarters. Also, penalties did not always reflect the economic
benefit of noncompliance, either due to improper calculation of
the initial penalty amount, or reduction of the amount without
adequate documentation supporting the adjustment. As a result,
EPA was not achieving the anticipated goals of deterrence, fair
and equitable treatment of violators, and swift resolution of
environmental problems.
EPA did not ensure compliance by POTWs with the Congressionally
mandated deadline of July 1, 1988, for secondary treatment.
While the NMP resulted in increased compliance nationwide and
brought others onto a schedule toward achieving compliance, it
did not bring all facilities into compliance. In the four
regions reviewed, 340 of the 2013 (17 percent) major POTWs were
not in compliance.
We provided Headquarters program management with a draft copy of
this audit report on August 11, 1989, for their review and
comment. In accordance with EPA Order 2750, we requested a
response within 30 days. At their request we granted additional
extensions totaling 30 days. The primary action official
provided us with a response dated October 26, 1989. (See
Appendix I). The response did not address specific conditions or
cases developed in the findings. It was limited to general
comments in response to some overall conclusions reached in the
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report and more detailed comments pertaining to each of the
recommendations. Headquarters advised their comments were
limited (1) due to the fact the regional offices had an
opportunity to respond to the factual and statistical information
and (2) due to time constraints.
While Headquarters agreed that many of the cases cited in the
report were mishandled and they did not disagree with many of the
recommendations, they did disagree with the conclusion that
enforcement was ineffective. They believe the program has
progressed in the past several years and that the vast majority
of the facilities in Significant Non-Compliance (SNCs) are
handled properly. 'They report 78 percent of all SNCs in 1988
received timely and appropriate enforcement. We believe this
figure is misleading in that it includes all facilities that
returned to compliance, whether or not there were enforcement
actions taken. It also includes all facilities on which
enforcement action was taken in a timely manner, whether or not
the enforcement action was effective. As our audit findings
discuss, not all enforcement actions taken were appropriate or
effective.
The Office of Water in their response points out what they
consider the strength of the enforcement program by citing the
number of enforcement actions taken in FY88. Our approach to the
audit was not to evaluate the number of enforcement actions taken
as we considered the nature and effectiveness of the enforcement
actions to be a better measure of success.
The Office of Water was concerned that the report failed to
recognize the progress the program has made in the past several
years. Our basis of measurement was not comparing current levels
of enforcement to previous levels but rather we measured the
effectiveness of enforcement actions against the requirements of
the enforcement program, a different methodology which yields
different conclusions than arrived at by the Office of Water.
We applaud their continued progress in enforcement and would hope
that our recommendations can be utilized to further strengthen
the enforcement program.
While specific recommendations for corrective action were
provided to the Regional Offices in the separate regional
reports, we are providing recommended courses of action for
Headquarters to follow in this report to ensure that consistent,
uniform, and effective enforcement programs are implemented
nationwide.
The Office of Water's response indicates that the recommended
courses of action are either in place, in the process of being
implemented, or are being evaluated for implementation in the
future. We believe that these corrective actions will result in »
a more effective enforcement program.
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ACTION REQUIRED
In accordance with EPA Order 2750, action officials are requested
to provide us with written responses to this report within 90
days.
BACKGROUND
The Rivers and Harbors Act of 1899 was the first Federal
legislation covering water pollution. In 1956, Congress enacted
the Federal Water Pollution Control Act (FWPCA), under Public Law
(PL) 84-660. The FWPCA made Federal grant funds available for
the planning, design and construction of wastewater treatment
facilities it also provided the basis for the current
construction grant program funded under the Clean Water Act.
Before the FWPCA, minimal planning of enforcement occurred, and
compliance was negotiated through an informal process. The
Department of Health, Education and Welfare administered the
program until 1966, when the FWPCA transferred the responsibility
to the Department of Interior. The construction grant program
was subsequently transferred to EPA in 1970.
In 1972, the FWPCA was amended by the Clean Water Act (CWA),
Public Law 92-500, which resulted in extensive changes to the
construction grant program. The CWA required a strong
enforcement program, State and area-wide planning, and the
issuance of permits for all point-source dischargers based on
approved water quality standards or stringent technology-based
effluent limitations.
NPDES permits established discharge limits used to measure
compliance with the CWA. The CWA required increasingly stringent
technology-based effluent limitations for industrial users which
are established in the National Effluent Guidelines, 40 CFR 400.
For POTWs, the CWA required secondary treatment limits, or any
additional treatment levels necessary to protect water quality,
based on the effluent limits required to meet the State's Water
Quality Standards.
The CWA required all POTWs and industrial facilities which
discharge directly into navigable waters to achieve minimum
levels of water pollution control by July 1, 1977. Congress
twice extended this deadline for compliance by POTWs. The 1977
amendments to the CWA extended the deadline to July 1, 1983, and
in 1981 the Congress again extended the deadline for eligible
POTWs to July 1, 1988.
The CWA allows no extension of permit compliance dates beyond
July 1, 1988. Consequently, there is a clear mandate that POTWs
act promptly to achieve and maintain compliance, regardless of
the availability of Federal financial assistance. Despite the
fact that the CWA did not indicate any connection between the
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enforceability of effluent limits and the timely receipt of
Federal assistance, there was still some uncertainty whether
POTWs not receiving Federal funding for construction had to meet
the statutory deadline. To clear up this uncertainty, EPA issued
the National Municipal Policy on January 30, 1984. The primary
purpose of the policy was to make clear that all POTWs were
responsible for meeting the 1988 statutory deadline, regardless
of the level of Federal funding.
Achieving and maintaining a high level of compliance with
environmental laws and regulations are two of the most important
goals of Federal and State environmental agencies. EPA has
constantly stressed the need for a systematic administrative
approach to enforcement, with the objective of achieving a
consistent, uniform national posture in the implementation of the
NPDES program established by the CWA. The CWA provides for civil
and criminal enforcement actions that can be taken by EPA or a
delegated State agency to ensure that point source dischargers
are in compliance with their NPDES permit.
As the NPDES program matured, there has been increased awareness
that the program will be effective only when administering
agencies (EPA or delegated States) are able to systematically and
efficiently identify instances of noncompliance. Then these
agencies need to take timely and appropriate enforcement action
to achieve the final goal of full compliance by the permittee
with the CWA.
To aid in enforcement decision-making and to produce consistent
and effective enforcement actions, EPA Headquarters published the
Enforcement Management System (EMS) Guide. This guide was
developed in 1977 and revised by the EPA Office of Water on
February 27, 1986. The original EMS Guide developed in 1977 is
still applicable to any compliance and enforcement system. The
1986 EMS Guide requires that all administering agencies have a
written description of an enforcement management system and that
such a system be consistent with the principles of the 1986 EMS.
The written system was to be in place by October 1986. The EMS
Guide sets forth suggested responses to various types of permit
violations in setting priorities for enforcement actions, and
provides for both formal and informal responses.
An informal response includes telephone calls and meetings with
the permittees in violation, while formal responses include
administrative orders, consent agreements and judicial actions.
The appropriate response or enforcement action is determined by
the nature of the violation. If the enforcement actions taken do
not result in compliance by the permittee, then the EMS Guide
requires using progressively stringent actions until the facility
returns to compliance. The intent of Congress was for the State
to administer its own program, with EPA retaining ultimate
responsibility to ensure compliance with the CWA.
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The CWA includes administrative, civil, and criminal enforcement
remedies for noncompliance. The 1987 amendments to the CWA gave
EPA the ability to assess penalties administratively, including
the issuance of a notice of violation to the State and violator,
or an administrative compliance order to the violator. EPA can
also file a civil action to obtain compliance and penalties.
Initially, EPA was responsible for administering the NPDES
program. However, section 402(b) of the CWA allows a State to
administer its NPDES program after the Administrator determines
that the State has adequate authority to administer the program
and approves the State's program. Title 40 CFR 123, Subparts A
through D, establish the requirements which the State must meet
to receive approval to administer its NPDES program.
A Memorandum of Agreement (MOA) is executed by and between the
State and EPA specifying the responsibilities the State must meet
in administering its NPDES program consistently with the CWA,
Federal regulations, guidelines and State laws and regulations.
This approval is referred to as delegation.
Even though the administration of the NPDES program is delegated
to the State, EPA has continuing overall responsibility for
oversight of the NPDES program. The MOA specifies that EPA may
proceed with enforcement action where it determines that the
State had not taken timely and appropriate enforcement action
against NPDES violators. In addition, EPA Regulation 40 CFR
123.63 provides that if a State fails to carry out its NPDES
program as required, then EPA can withdraw the authority
delegated to the State for administering its NPDES program. To
assist the States in administering the NPDES program, EPA has
provided funding for staffing through grants under Sections 205g
and 106 of the CWA.
EPA delegated the administration of the NPDES program to 39 of
the 50 States. For the 22 States covered by the four audited
Regions, 17 were fully delegated, four shared joint enforcement
responsibility with EPA, and one was the sole responsibility of
EPA.
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FINDINGS AND RECOMMENDATIONS
1. EPA NEEDS TO BE MORE AGGRESSIVE IN ENFORCEMENT OF NPDES
PERMITS
EPA was not effectively carrying out its enforcement
responsibilities under the Clean Water Act. Enforcement actions
initiated against violators of NPDES Permits were either
untimely, inappropriate for the type of violation, ineffective in
returning the violator back to compliance, or nonexistent.
Further, EPA was not assuring that the States properly managed
their NPDES Permit Enforcement Program. EPA's actions when
States failed to carry out effective enforcement actions were not
appropriate to change the States' methods of operation, nor had
EPA initiated direct enforcement action in cases when required.
While the reasons for this vary, there have been problems that
are common nationwide that need to be addressed. The most
pressing problem was that Headquarters had not assured the
implementation of a consistent, uniform and effective approach to
enforcement. As a result, POTWs continue to discharge millions
of gallons of inadequately treated effluent into the nation's
waterways daily. Compliance with the intent of Congress to
correct point source pollution problems and enhance and maintain
the water quality of the nation's waterways was compromised.
This impacts on the aquatic life in, and the recreational use of
the nation's waterways.
The Clean Water Act (CWA) authorizes EPA and approved States to
administer regulatory mechanisms to ensure that dischargers meet
the requirements of the CWA. EPA has continuing overall
responsibility for implementation or oversight of the NPDES
program in all States, but shares many of the implementation
functions of the NPDES program in a partnership arrangement with
State agencies to:
1. Promote the achievement of national program goals and
objectives;
2. Ensure compliance with Federal and State statutory and
regulatory requirements implementing the CWA; and,
3. Maintain reasonable national consistency.
Under the CWA, NPDES permits are issued for the discharge of
pollutants from point sources into the waters of the United
States. Initially, EPA issued these permits. However, States may
be authorized to administer the NPDES program for the dischargers
into navigable waters within their jurisdiction if EPA determines
that the State program satisfies the requirements of Section
402(b) of the CWA of 1972 which states in part:
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"... the Governor of each State desiring to administer its
own permit program for dischargers into navigable waters
within its jurisdiction may submit to the Administrator a
full and complete description of the program it proposes to
establish and administer under State law or under an
interstate compact.
In addition, such State shall submit a statement from the
attorney general (or the attorney for those State water
pollution control agencies which have independent legal
counsel), or the chief legal officer in the case of an
interstate agency, that the laws of such State, or the
interstate compact, as the case may be, provide adequate
authority to carry out the described program. The
Administrator shall approve each such submitted program
unless he determines that adequate authority does not exist
H
• ...
40 CFR 123 Subpart A through D establishes requirements which the
States must meet to receive approval from EPA to administer its
NPDES program. A Memorandum of Agreement (MOA) is executed
between the State and EPA, specifying the responsibilities the
State shall meet in administering its NPDES program consistently
with the CWA, applicable Federal regulations, guidelines, and
State laws and regulations. This approval is referred to as
delegation.
In States that have not received NPDES delegation, EPA regions
either maintained full responsibility for enforcement or have
entered into joint enforcement agreements, which are formalized
in Memoranda of Understanding. These memoranda delineate the
responsibilities for evaluation, oversight and enforcement of the
NPDES Programs.
To aid administering agencies in meeting their enforcement
responsibility under the CWA, EPA Headquarters published the
Enforcement Management System (EMS) Guide in 1977. The Guide,
subsequently revised by the EPA Office of Water, on February 2,
1986, provides a wide range of enforcement responses the
administering agency can take to abate noncompliance by
permittees. Enforcement actions include both informal and formal
responses. Informal responses include telephone calls, Letters
and Notices of Violation (LOV and NOV), meeting with permittees,
and providing technical assistance. Formal enforcement actions
include Administrative Orders (AOs), Consent Agreements and
Consent Decrees. Responses and formal enforcement actions should
be consistent with EPA's EMS Guide suggested enforcement
responses. The guide also stipulates that enforcement responses
return the permittee into compliance. If the violator fails to
respond appropriately to the enforcement action and does not
initiate a good faith effort to return to compliance within a
reasonable period of time, the enforcement action should be
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escalated to stronger enforcement actions that would encourage a
return to compliance.
Our review included an assessment of the adequacy of enforcement
actions taken by: (1) States whose responsibility for
enforcement came from full delegation of the NPDES programs; (2)
States whose enforcement responsibility was established by joint
enforcement agreements with EPA; and (3) a regional office which
maintained full responsibility for enforcement in one State. The
States included in our review are as follows:
Region 1
Connecticut Delegated
Rhode Island Delegated
Maine Joint Enforcement
Massachusetts Joint Enforcement
Region 2
New Jersey Delegated
New York Delegated
Region 4
Alabama Delegated
Florida Regional Enforcement
Georgia Delegated
Region 5
Indiana Delegated
Ohio Delegated
Based upon our evaluation of the enforcement actions taken, we
concluded that the effectiveness of enforcement taken by the
Regions through sole responsibility and joint enforcement
agreements varied between and within Regions, and that delegation
of the enforcement responsibility to the States was not working
effectively. The enforcement actions taken in ten of the eleven
States reviewed were not timely or in accordance with the EMS
guide. Further, they have not returned the POTWs, identified as
in violation, into compliance with their NPDES permits as
required by the CWA. A prime reason for the States' ineffective
enforcement was a reluctance to enforce against POTWs which had
not received Federal grant awards for construction. For the
cases included in our audit sample, the States did not undertake
aggressive enforcement actions until after Federal grant awards
were provided or the July 1, 1988, deadline approached.
The sections that follow illustrate the problems disclosed in the
regions and States reviewed during the course of the audit. The
regions and States noncompliance with the EMS Guide, coupled with
the ineffectiveness of the various approaches to enforcement
noted, demonstrate the need for stronger Headquarters direction
in this area.
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Region 1
While the enforcement actions taken by EPA Region 1 directly
against violating facilities was generally effective, the
enforcement actions taken by the States was generally not
adequate or effective in returning violating municipal facilities
into compliance with their NPDES permits as required by the CWA.
While there were some successful enforcement actions, most of the
enforcement actions against significant municipal violators were
not effective. The States issued enforcement actions, such as
Notices of Violation and Administrative Orders; however, they did
not aggressively enforce the provisions of these actions against
major municipal POTWs until Federal grant awards became
available. Further, EPA Region 1 had not taken appropriate
actions to assure that the States assigned responsibility for
enforcement adequately discharged that responsibility. This
ineffective enforcement allowed some of the Region's most
significant violators to continue to exceed their permit limits.
As a result, delegation of enforcement responsibility to the
States was not working.
Based upon our testing, enforcement actions taken by Region 1
directly against violating facilities were generally adequate.
In five of the six cases reviewed, the facility came back into
compliance. In the sixth case, the facility was meeting its
schedule of milestone due dates. In addition, we noted that the
Region successfully brought suit against what is probably one of
the nation's most significant violators in what is known as the
Boston Harbor Case.
The States, on the other hand had not discharged their
responsibility as effectively as the Region. States received the.
responsibility for enforcement either through delegation of the
NPDES program or through joint enforcement agreements with EPA.
We reviewed enforcement actions taken for two delegated States
and for two States with joint enforcement agreements. In three
of the four States reviewed, the State did not always initiate
appropriate enforcement actions. When the States did initiate
action it was often ineffective because the States did not follow
up to assure violating facilities complied with orders issued.
This resulted in what can be perceived as a failure of delegation
of responsibility for enforcement to the States.
The Region did not provide adequate oversight specifically
addressing the States' enforcement activities to assure that the
States properly discharged their responsibility under the NPDES
program. Further, the Region did not follow up on water
pollution violations which were disclosed and not subjected to
effective enforcement by the States. The Region divorced itself
from enforcement responsibility once the enforcement program was
delegated or assigned to the States and as a result did not
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ensure that violators were complying in a timely manner with the
provisions of the CWA and enforcement orders issued.
We reviewed nine POTWs and six industrial facilities identified
as violators in Rhode Island and Connecticut to assess the
enforcement actions taken to return the facilities into
compliance. The enforcement responsibilities for these two
States rest with the Rhode Island Department of Environmental
Management (RIDEM) and the Connecticut Department of
Environmental Protection (CTDEP). The enforcement actions taken
by both RIDEM and CTDEP were inadequate or ineffective in
bringing the municipal violators back into compliance in a timely
manner as required by the CWA. POTWs had been in continued
violation of their NPDES permits and effluent limitations for
several years, even after formal enforcement action was taken.
The AOs issued to facilities addressed the corrective actions
necessary to eliminate the continued violations of their NPDES
permits; however, neither RIDEM nor CTDEP were actively pursuing
compliance with these orders.
Rhode Island
On September 17, 1984, the State of Rhode Island signed an MOA
with EPA and agreed to administer the Rhode Island Pollutant
Discharge Elimination System permit program consistently with the
CWA, and applicable Federal regulations. Rhode Island had not
complied with the enforcement mandate it agreed to carry out.
RIDEM's enforcement actions were subjective and had no follow up
action to ensure that violators had complied with outstanding AOs
which were issued in an attempt to return the dischargers into
compliance. For example, for a six month period, January through
June of 1986, the State identified a total of 569 NPDES permit
violations in its noncompliance tracking report for 78 facilities
of which 28 were major dischargers. Of the 569 reported
violations, 439 had been selectively written off by an engineer
in the RIDEM Compliance Evaluation and Technical Support Section,
as not requiring an enforcement response because either the
Engineer was aware of the permittee's problems, or the violation
in the engineer's opinion did not warrant formal enforcement
action. However, included in the 439 NPDES violations written
off, were 16 of the 28 major dischargers where the permittee was
either in significant noncompliance (SNC) with its NPDES permit
effluent limitations or the compliance schedules established in
an AO. In these cases enforcement actions should have been
initiated or, where AOs were previously issued, the action should
have been escalated to another appropriate enforcement response
that would ensure timely compliance with the order, and
ultimately bring the violator back into compliance with the CWA
as required. As a result of writing these violations off,
enforcement actions were not initiated, the POTWs continued to
violate their permits, and the State's reporting of violations to
EPA was understated.
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We reviewed all nine dischargers that were in violation of their
NPDES permits which had enforcement action taken. RIDEM had
taken formal enforcement action on five of the violators and
informal action on the other four. Enforcement actions on five
of the nine cases were ineffective and did not return the
violator into compliance with its NPDES permit.
The Newport wastewater treatment facility was one of these cases.
The facility had been in violation of its Rhode Island Permit
Discharge Elimination System (RIPDES) permit since 1982 for
failure to meet secondary treatment requirements of the Clean
Water Act. The City of Newport had received a construction grant
on October 24, 1984, from EPA to fund the construction costs of
needed facilities. It was not until two years after the Federal
funds were made available that formal enforcement actions were
initiated. On September 30, 1986, RIDEM and Newport agreed to
the terms of a consent decree. The Superior Court of the State
of Rhode Island issued a Consent Decree on November 21, 1986,
requiring the City to upgrade its wastewater treatment facility
to achieve secondary treatment capabilities. The court imposed
on the City, through the Consent Decree, certain requirements the
City of Newport must comply with. In addition to establishing
milestone due dates to be met, the facility had interim limits
incorporated in the order. Section XIV of the Consent Decree
stated the following:
"...Failure by the City to meet any interim effluent limit
and monitoring requirements contained in Exhibit A and B, or
any failure to comply with sections V, VI, and VIII, of this
Order shall be deemed a violation of Newport's discharge
permit and shall subject the City to enforcement action by
DEM in the same manner as an RIPDES permit violation."
The RI Water Compliance Section Chief advised that interim limits
were derived for this facility by ascertaining what the facility
discharged for a year and coming up with an average. The average
was considered an attainable limit and was then included in the
Consent Decree as an interim limit and agreed upon between the
court and the City of Newport.
A review of the Quarterly Noncompliance Reports (QNCRs) for the
period July 1986 through December 1986 disclosed that the
facility exceeded its interim limits for fecal coliform and
settleable solids. The DMRs submitted by Newport showed that
they exceeded interim limits for fecal coliform by 201 percent.
Newport submitted its DMRs to RIDEM and had reported exceeding
its interim limits for settleable solids by 150 percent. The
facility had continued to violate its permit through March 1987.
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As noted previously a consent decree was issued November 21,
1986; however, RIDEM had not taken any additional enforcement
actions on this facility despite the continuing violations of its
interim permit limits. Enforcing interim limits included in the
Consent Decree would assure the least harm to the environment by
the facility's effluent discharge while awaiting completion of
construction upgrade to secondary treatment. RIDEM should have
taken additional enforcement action against this facility as
provided for in the RIDEM EMS Guide.
In response to our audit finding RIDEM advised Region 1 that the
permit limits were set as stated in the report, and had their
staffing level been adequate at the time, RIDEM might have
petitioned the Court and EPA to reopen the Decree to lower the
limits. We feel that lowering the interim limits rather than
enforcing the existing interim limits would only have had an
adverse effect on the environment and prolong the clean-up of the
waterways.
Connecticut
On September 23, 1973, the State of Connecticut signed a
Memorandum of Understanding with EPA. The State agreed to
administer the Connecticut Pollutant Discharge Elimination System
permit program consistently with the CWA and applicable Federal
regulations. Connecticut had not complied with the enforcement
mandate they agreed to carry out. The enforcement actions taken
by CTDEP either through Administrative Order (AOs) or Consent
Decrees were not adequate or effective. When issued, the actions
were not enforced as required by the EMS guide. POTWs failed to
comply with terms and conditions established by the enforcement
actions with no further action taken by CTDEP to bring them back
into compliance. This inaction by CTDEP allowed dischargers to
continue to violate the CWA for years, even after formal
enforcement had been taken by the State Agency.
We reviewed six of the 57 enforcement actions taken by CTDEP from
January 1984 through December 1986. Our selection included three
of the 24 municipal and three of the 33 industrial dischargers
who the State found to be in violation of their permit conditions
and for which CTDEP had initiated some type of enforcement
action. The three AOs were issued against each of the industrial
dischargers which we chose at random to be reviewed. At the time
of our review, two facilities had come back into compliance. One
facility was still in noncompliance with its permit conditions;
however, the facility was making satisfactory progress toward
correcting the operation and maintenance problems cited by the
CTDEP in the AO as contributing to the permit violations. Since
the facility was meeting the milestone due dates established in
the AO, no further enforcement action was necessary. All three
municipal cases chosen for review had been in significant
noncompliance since the late 1970s; however, none of the
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facilities adequately responded to the enforcement actions taken
and had not returned to compliance with the permit conditions.
CTDEP issued an AO to the City of Bridgeport Waste Water
Treatment Facility in February 1977 and required the discharger
to "provide a plan to eliminate sewer overflows." According to
the principal sanitary engineer for CTDEP, the milestones imposed
by the 1977 AO were not met by the City. The facility continued
to be in noncompliance for four more years with no further
enforcement actions until an AO was issued in May 1981 for
evaluation and upgrading to minimize inflow-infiltration and
eliminate sewage overflows in sections of Bridgeport,
Connecticut. The milestones established in the May 1981 AO were
not met. Rather than escalating the type of enforcement action,
CTDEP issued another AO in May 1983 which provided for the
correction of storm water related overflows. There was no
evidence that any of the milestones established in the 1983 AO
were met, although CTDEP's response to the draft report indicates
that the milestones were met. On December 12, 1986, CTDEP
executed a Consent Order. This Consent Order was a nonjudicial
action, which was a negotiated agreement between CTDEP and the
City of Bridgeport. CTDEP provided no evidence that the POTW
complied with the milestone due dates established by the consent
order for December 1986 and March 1987. Given the history of the
facility and the fact that three previous AOs did not bring the
facility into compliance, we believe CTDEP should have referred
this facility to the Attorney General for further action as
provided for by the CTDEP Water Compliance Unit Operating Manual.
In response to our draft audit report, CTDEP advised Region 1,
that: "the audit report describes four separate and distinct
administrative orders, issued to Bridgeport, POTW, to correct
different problems." We agree with the State's response. We
used the four enforcement orders to show Bridgeport's historical
pattern of noncompliance with formal and informal enforcement
actions initiated by EPA Region 1 and CTDEP.
In an attempt to verify Bridgeport's status of compliance with
the abatement orders, we reviewed Bridgeport enforcement files
maintained by CTDEP. The Bridgeport enforcement files were
poorly maintained, and lacked supporting documentation to
indicate whether the POTW had met its compliance schedules and
milestone dates in any of the AOs. The CTDEP principal sanitary
engineer in charge of the Bridgeport enforcement case, advised us
that five of the seven compliance schedule milestone due dates
were met. They missed steps (F) and (P), to submit an
engineering report prepared in accordance with section 22a-443 of
the General Statutes by March 31, 1987, and to submit a scope of
services outlining the tasks that will be conducted for the
management study by December 31, 1986. He further informed us
that he was aware of the POTW's status of compliance because he
attended monthly progress meetings and maintained telephone
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communication with the POTW. The CTDEP is the ultimate
regulatory agency, and according to the Memorandum of Agreement
for the delegation of the NPDES program executed with EPA, they
have sole responsibility to maintain accurate and complete
enforcement files. Knowledge of compliance or noncompliance with
an abatement order, obtained through a meeting or a telephone
conversation, without physical written support would only
severely undermine any legal actions to be taken by either CTDEP
or the EPA.
While the four abatement orders issued to Bridgeport addressed
four distinct separate problems at Bridgeport, the ultimate
result was that the POTW continued to degrade the environment and
had not returned to compliance in a timely manner, as required by
the State and Federal EMS Guide. Given the historical pattern of
Bridgeport's noncompliance with enforcement orders and compliance
schedules, we believe that CTDEP should have sought a formal
consent decree through the court as required.
Massachusetts and Maine
We also reviewed enforcement actions taken in two of the three
States in Region 1 which had joint enforcement agreements with
EPA, the Massachusetts Department of Environmental Quality
Engineering (MADEQE) and the Maine Department of Environmental
Protection (MEDEP). The joint enforcement agreement was
formalized through a Memorandum of Understanding (MOU) which
defined the roles of the State and EPA for coordinated
enforcement responses to instances of noncompliance each agency
will have. While the enforcement actions taken by MEDEP were
generally adequate, those taken by MADEQE were not timely,
appropriate or effective.
We reviewed and assessed the enforcement actions taken by either
MADEQE or EPA Region I. We selected for review eight of the 27
permittees who had reported violations for the period January 1,
1984 through December 31, 1986, and for which enforcement actions
were initiated. EPA Region I handled the enforcement of three of
the cases and the MADEQE handled the other five under the joint
enforcement agreement. The three POTWs handled by EPA returned
to compliance. The five POTWs assigned to MADEQE for enforcement
were still in violation of effluent limitations or scheduled due
dates for tasks included in their formal enforcement orders.
Despite the continued violations there was no evidence of
additional enforcement actions by MADEQE.
Region 1 Oversight
As stated previously, EPA Region 1 delegated the full
administration of the NPDES program to the States of Connecticut,
Vermont and Rhode Island and executed joint enforcement
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agreements with Massachusetts, Maine and New Hampshire. EPA
Region 1 still has oversight responsibility/ however, to ensure
that timely and appropriate enforcement actions are taken against
those dischargers violating their NPDES permit requirements.
While the enforcement actions taken by the States of Connecticut,
Rhode Island and Massachusetts were not timely, appropriate or
effective in returning the violator back to compliance, EPA
Region 1 did not initiate direct enforcement action where the
States failed to do so. There was no evidence of any prescribed
uniform procedures used by Regional personnel to track and
monitor individual compliance schedule milestones initiated by
the States. Region I Water Management Division (WMD) personnel,
stated that other than maintaining a tickler system, they were
not using a tracking system to monitor compliance schedules and
milestone due dates incorporated in the AOs. As a result, Region
I's oversight responsibility to ensure that enforcement actions
are taken on a timely and appropriate basis by the States was
insufficient and not in accordance with Headquarters policy and
guidance.
The EPA Region 1 Water Management Division Compliance Chief
advised that enforcement against every NPDES permit violator is
impossible because of the limited resources at both the State
level and Regional level. We acknowledge Region I's contention
that it cannot enforce against every violator; however, we only
looked at actions that were taken and followed up to assess if
the States and Region were forceful and effective in returning
the violator to compliance.
The three States cited generally were not effective in their
enforcement actions. Further, EPA Region I was not effective in
assuring that these States properly discharge their
responsibility for enforcement against POTWs in violation of
their NPDES permits. While the Region made recommendations in
the past for improvement of the NPDES programs in Rhode Island
and Connecticut, they did not result in the States' compliance
with the requirements for effective enforcement against NPDES
violations.
EPA Region 1 had not adequately discharged its oversight
responsibility. It should have taken a more active role in
assuring that delegated States and those States with joint
enforcement agreements carried out their responsibilities
consistent with the requirement of the CWA.
The Region generally agreed with the findings disclosed in our
report. However, they stated that the report was not fair in
that it does not give Region 1 any credit for or mention the work
that was done with the States. They informed us that Region 1
has devoted a lot of time and effort in working with the States
in development of required legislation to carry out properly
their NPDES responsibilities and negotiation of workplan
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commitments. This would include implementation of the PCSf permit
issuance and other areas related to the NPDES program. They also
advised us that emphasis was placed on industrial enforcement due
to the complexity involved in municipal enforcement. However,
the Region has met with the six New England States to ensure that
aggressive enforcement will be taken against those POTWs found to
be in violation of their NPDES permit.
The States' responses indicated improvements made and planned in
their enforcement programs. We viewed this as a positive step
toward improving NPDES permit enforcement Region I. While the
status of permit compliance by cited facilities improved, we
cautioned EPA, Region I and the States that our concern was not
just with specific facilities. Although they were used to
illustrate the problems we disclosed, we were primarily concerned
with the systems that allowed the permit violations to continue
uncorrected without additional enforcement activity.
Region 2
EPA Region 2 and the States of New York and New Jersey were not
fully effective in assuring that major permittees complied with
permit conditions and formal enforcement provisions executed
under the National Pollutant Discharge Elimination Systems
(NPDES) program. Our review of 23 enforcement case files
disclosed that in 21 instances the States and Region 2 did not
institute adequate enforcement actions which were timely,
appropriate for the type of violations, or effective in returning
violators to compliance. These cases were judgmentally selected
from our review of major facilities appearing on the QNCRs or
quarterly active exception lists from 1985 to 1988. In addition,
Region 2 did not always initiate formal enforcement action when
the States did not take timely, appropriate, or effective action
as required. This condition occurred principally because the
Region and the States did not comply with their policies and
procedures and aggressively discharge their responsibilities for
enforcing NPDES violations. New York State generally relied on
negotiating Consent Orders with violators rather than pursuing
unilateral AOs. New Jersey generally continued taking informal
actions rather than escalating the level of enforcement. When
formal actions were initiated, it was done because certain
municipalities would not meet the July 1, 1988, statutory >
compliance deadline which would not be extended. As a result,
permittees continued to discharge inadequately treated effluent
into the Region's waterways on a daily basis. The lack of
aggressive enforcement also increased the potential for community
exposure to unhealthy environmental factors.
New Jersey
The New Jersey Department of Environmental Protection (NJDEP) had
not initiated timely, appropriate, or effective enforcement
actions in eight of nine municipal and industrial cases reviewed
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in which the State had the enforcement lead. In the tenth case
EPA and the State had a joint responsibility for the untimely
enforcement of the municipality. We found in five municipal
cases, that the State intensified its enforcement only when it
was apparent the July I, 1988, statutory compliance deadline
would not be extended and facilities would be in violation.
Also, in three of four industrial cases the State did not
aggressively discharge its enforcement responsibility. In
addition, NJDEP did not always comply with EPA's or the State's
requirements, policies and procedures for administering the NPDES
program and effectively reacting to permittees that did not
comply with permit conditions.
One of these municipal facilities was the Riverside Sewerage
Authority. This facility had a history of problems in meeting
effluent limits as far back as 1978. It did not meet the
July 1, 1986, permit compliance schedule date for completing the
facility rehabilitation and alteration to comply with the permit
effluent limits. The action taken by the State in responding to
these violations were not timely, appropriate, or effective in
returning the permittee to compliance by the July 1, 1988,
deadline.
Documentation in the files showed that between January 1980 and
July 1988 the State conducted 15 compliance inspections and the
facility received 11 unacceptable and 3 conditionally acceptable
ratings. The State routinely issued warning letters, but it was
not until February 1988 that the State escalated enforcement and
issued an AO for chronic effluent limitation violations from
January 1, 1986 through October 31, 1987.
The permittee was also in SNC for two consecutive quarters, was
off the list for one or two quarters, and was back in SNC for at
least six consecutive quarters beginning October 1, 1986. Also,
the Significant Noncompliance Action Program (SNAP) agenda item
for the quarter ended March 1987 indicated the State should take
enforcement actions to resolve the permittee's past effluent
violations. However, the State responded that no action would be
taken until its July 1, 1988, policy was finalized. The Region
also did not take any formal action. Although NJDEP may have
been awaiting finalization of EPA Region 2's NMP policy, it did
not preclude taking timely formal enforcement actions since
violations dated back to 1978. Also, the issuance of the delayed
AO was not in accordance with the October 1987 EPA/NJDEP
agreement.
The NJDEP ERG mandated that a directive letter be issued within
15 days after the permittee missed the July 1, 1986, compliance
schedule date for completing rehabilitation/alteration, and then
an AO within 100 days of the letter's due date if no response was
received. The State did not cite the permittee for failing to
complete the rehabilitation/alteration until December 2, 1986
(five months after the violation occurred), and did not issue an
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AO for the permit schedule noncompliance. The ERG also states
that an AO should be issued within 100 days of the last letter
response for frequent permit effluent violations. Although the
permittee's last response was on June 9, 1987, NJDEP did not
issue the Order until February 10, 1988 (approximately 240 days
later). Therefore, we believe the State actions were not timely,
appropriate or effective.
New York
The New York State Department of Environmental Conservation
(NYSDEC) did not take timely, appropriate or effective action in
nine of ten municipal and industrial cases in which the State had
or shared the enforcement lead. On two of three other municipal
cases, EPA Region 2 assumed the enforcement lead because the
State did not initiate timely or appropriate action. The third
case generally involved pretreatment program violations for which
EPA had the enforcement lead. This condition occurred because
NYSDEC did not always follow its established enforcement policies
and procedures. The State continued negotiating potential
Consent Orders instead of terminating these protracted
discussions as required and initiating unilateral enforcement
measures (i.e., Administrative or Judicial Order). As a result,
violators continued to be in noncompliance with permits or prior
Orders and were not compelled to return to compliance in an
expeditious manner.
The NYSDEC's Enforcement Response Guide (ERG) provides a range of
responses to violations based on the frequency, duration, and
seriousness of the noncompliance. The ERG states that the
suggested responses are the minimum required and more stringent
enforcement responses may be applied. The enforcement response
may be informal such as a phone call or a notice of violation
(NOV), or formal such as a Consent Order (CO), Judicial Order
(JO) or criminal proceeding. Where appropriate, escalation of
the enforcement response is required. For example, the ERG's
minimum response to infrequent and minor sampling or reporting
violations is a phone call or NOV, but when these violations
continue or become major the minimum response is escalated to an
administrative notice of hearing and a cease and desist directive
and complaint. If the administrative hearing results in a
decision for NYSDEC, the violator would be issued a unilateral
Commissioners Order (AO) mandating the terms for a return to
compliance.
NYSDEC's enforcement actions were often untimely, inappropriate,
or ineffective in achieving compliance. Generally, State
officials initiated informal documents or entered into time
consuming negotiations in an attempt to reach mutually agreeable
Consent Orders. When these negotiations failed to achieve the
permittee's compliance in a timely manner, the enforcement action
was not escalated as required by NYSDEC's EMS.
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NYSOEC escalated its enforcement against those municipalities
that would not meet the July 1, 1988, CWA deadline for secondary
or higher levels of treatment. Enforcement was escalated because
EPA's 1987 enforcement strategy required noncomplying major
publicly owned treatment works to be under JOs containing
compliance schedules. In two of the three NMP cases reviewed
(Village of LeRoy and Seneca Falls), the June and July 1988 JOs
were the only formal enforcement actions taken although these
major facilities had been chronic violators of their permits for
many years. In the third case (East Greenbush), although two
1985 and 1986 COs were negotiated with suspended penalties prior
to the June 1988 JO, they were unsuccessful in achieving
compliance.
As noted, NYSDEC did not take timely, appropriate, or effective
action against the Village of LeRoy which had violated its permit
effluent limits since 1979 and had not met the July 1, 1988, CWA
deadline. For example, a July 23-24, 1979, NYSDEC inspection
disclosed three parameter violations, but formal action was not
taken. In October 1981 EPA considered issuing a NOV to the State
regarding significant violations by the Village's treatment
facility, but the files did not indicate whether it was issued.
A November 19, 1984, NYSDEC letter disclosed that an
October 4, 1984, inspection found violations of permit
requirements and that an AO would be issued requiring submittal
of a composite correction plan (CCP) with an expeditious schedule
for achieving compliance. Instead of issuing an AO, NYSDEC sent
the permittee a proposed CO (April 16, 1985) for submittal of the
CCP. The Order was not signed and on June 16, 1986 another CO
was proposed for submission of a CCP by November 1, 1986. The
accompanying letter stated, "If agreement cannot be reached on a
Consent Order, this office will have no alternative but to
commence formal legal proceedings to seek relief for the
consistent violations of the Village's NPDES Permit, including
the assessment of statutorily authorized penalties."
The SNAP minutes and EPA's items of concern dating back to 1983
disclosed concern with NYSDEC's strategy for achieving the
facility's compliance. During 1985 and 1986 EPA inquired into
the CO status, reasons for delays, revised dates, etc. For
example, EPA's January 28, 1986, Items of Concern stated,
"Acceleration of the State action is desirable. If CO terms
acceptable to permittee, CO should be finalized in February '86
following schedule submittal." In addition, the February 3,
1986, SNAP minutes reported that a CO would be in place by
March 31, 1986, and if that date was not met NYSDEC would
initiate more formal enforcement. Finally, the November 3, 1986,
SNAP minutes on the LeRoy situation indicated NYSDEC's Counsel
would refer this case to the New York State Attorney General's
office by December 15, 1986. The November 21, 1986, Enforcement
Summary also listed 1984 through 1986 effluent discharge
violations and indicated that the plant "did not meet the USEPA
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requirement for the minimum level of secondary treatment which
are the final limits of the permit." On March 3, 1987, this
matter was finally referred to the Attorney General and a JO was
issued on July 14, 1988.
In response to the draft report, NYSDEC officials stated that the
Village constructed a tertiary treatment system which later
proved insufficient and legal action was taken to recoup funds.
Although we acknowledge the construction of and problems with the
treatment system, we do not believe it mitigated the fact that
formal enforcement actions were not taken until 1988 to resolve
violations as far back as 1979.
Region 2 Oversight
EPA Region 2 did not always initiate timely formal enforcement
action when the State's enforcement actions proved to be
inadequate. Furthermore, when Region 2 did exercise its
independent enforcement authority, the actions taken were not
always timely, appropriate or effective in obtaining the
permittee's return to compliance. Although Region 2 monitored
the States' enforcement program activities through the
Significant Noncompliance Action Program (SNAP) process which
included quarterly meetings with the States and other tracking
systems, it did not aggressively pursue its CWA responsibility by
initiating independent formal enforcement actions. For example,
the Region monitored the State's enforcement process on National
Municipal Policy (NMP) cases and was aware of those
municipalities that were likely not to meet the statutory
compliance deadline. However, it did not intervene when the
States did not initiate timely and appropriate formal enforcement
actions against noncomplying municipalities. In other cases,
Region 2 allowed the States too much time to try to resolve
noncompliance through protracted CO negotiations before it used
its independent enforcement authority. As a result, violators
continued to discharge inadequately treated effluent to the
States' waterways causing potential health problems. Under the
CWA, enforcement responsibility can be shared with NPDES approved
States. However, EPA retains independent authority if the State
does not adequately adhere to its responsibilities. EPA Region 2
delegated the administration of the NPDES program to New Jersey
in 1982 and New York in 1975. The Memorandum of Agreement
provides that each State will administer this program consistent
with current Federal regulations, policies, procedures, and
priorities established in the State's program plan.
Even though administration of the NPDES program was delegated,
Region 2 had continuing overall responsibility for program
oversight. For example, the Region 2/NYSDEC enforcement
agreement states that Region 2 may initiate direct Federal
enforcement action where it determines that Federal action is
necessary because the delegated State has failed to initiate
timely and appropriate formal enforcement action. In all cases
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involving direct Federal enforcement action, terms of the SNAP
will apply, with the understanding that, in cases where action is
required before the next scheduled SNAP meeting, procedures
analogous to those of SNAP will be followed.
Although New Jersey did not take timely, appropriate, or
effective action on nine enforcement cases reviewed, Region 2
took formal enforcement action on only three cases (Amerada Hess,
Riverside and Perth Amboy). However, on these three cases the
Region's actions were not initiated in a timely manner. For
example, Amerada Hess reported discharge violations between
January 1985 and December 1987, but NJDEP declined to issue an
enforcement order because it considered these violations
insignificant and thus a low enforcement priority. The Region,
however, considered this noncompliance to be significant enough
to include it as an agenda item for several SNAP meetings and
finally issued an AO in February 1988. The AO failed to achieve
compliance and discharge violations continued.
Although NJDEP generally initiated one or more formal documents
in the six other cases reviewed, these actions were not timely,
appropriate or effective in returning permittees to compliance.
EPA Region 2 also did not take enforcement action as required on
these six cases. Regional officials indicated that direct formal
enforcement was not taken because of personnel constraints and
the magnitude of NJDEP's case load. In addition, New Jersey's
estimates of the number of municipalities that would meet the CWA
compliance deadline was more optimistic than subsequent events
proved them to be. A July 25, 1986, Region 2 internal memo
pertaining to New Jersey's end of year review stated:
The DEP had done little judicially to address major
municipal noncompliance. The July 1, 1988, "deadline"
is fast approaching. Existing compliance/construction
schedules in permits, AOs and JOs must be enforced now
to achieve substantial compliance by that date.
In New York our review disclosed that EPA Region 2 did not take
any formal enforcement action on 5 of 13 cases where we
determined that NYSDEC's actions were either not timely,
appropriate or effective. On three cases Region 2 did not
intervene because it relied on the State to obtain JOs holding
these noncomplying municipalities to enforceable compliance
schedules. However, timely direct formal enforcement action by
EPA would have been appropriate because of the deficiencies noted
with the State's actions.
Our review disclosed that Region 2 and the delegated States of
New Jersey and New York established, with some exceptions, an
adequate system for administering enforcement actions against
NPDES permit violators. Each administering agency had an
approved EMS which provided necessary policies, guidelines, and
procedures for initiating timely, appropriate and effective
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enforcement against major NPDES violators. We concluded,
however, that Region 2 and the State Agencies did not always
follow or aggressively use the EMS to return violators into
compliance with their permits as expeditiously as possible. As a
result, we found that 21 of 23 major New Jersey and New York
permittees required improvement in either the timeliness,
appropriateness, or effectiveness of the enforcement actions.
The Region and the States of New York and New Jersey took
exception to the audit finding that they had not effectively
discharged their enforcement responsibilities although they did
acknowledge that improvements could be made with any programs.
The Region referenced the exceptions list as evidence of their
effectiveness. While facility compliance will delete it from the
exceptions list, enforcement actions, whether effective or not,
will effect the same result.
Region _4
Enforcement actions taken against chronic violators (facilities
in noncompliance for more than two consecutive quarters) in
Florida, Georgia, and Alabama were not timely or escalated when
previous actions proved ineffective. In spite of frequent
violations of permit conditions and previously issued enforcement
orders. Regional and State officials were reluctant to escalate
enforcement actions to induce timely compliance. Administrative
penalties were not imposed and judicial referrals were limited to
those necessary to require court-ordered compliance schedules
mandated by the Clean Water Act. The actions taken did not
result in bringing violating permittees into compliance.
Region 4 and the States of Georgia and Alabama did not maintain
required enforcement guides consistent with EPA directives. Key
provisions of the National EMS were not in the regional and
delegated States' guides. The Agency required that each
administering agency have an enforcement guide consistent with
the national guide. Neither the Region nor the two delegated
States had guides adequately addressing civil penalties,
provisions of the National Municipal Policy, enforcement
timeliness, and escalation of enforcement to civil action.
Further, regional and State guides provided for enforcement
actions less stringent than those established in the national
guide for some violations. The lack of appropriate written
procedures contributed to the overall ineffectiveness of
enforcement actions in Region 4.
Administrative and civil penalties were not effective in Region
4 because financial penalties were not routinely used to induce
compliance. Furthermore, penalties that were assessed did not
conform to EPA penalty policies because the Region and delegated
States did not seek to recover the economic benefit of the
violator's noncompliance. To get facilities under court-ordered
compliance schedules, the Region and delegated States collected
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civil penalties as a part of a last minute effort to comply with
the Clean Water Act deadline.
Enforcement actions taken against chronic violators in the States
of Florida, Georgia, and Alabama were not always timely or
escalated when prior actions proved ineffective. Although
enforcement actions were taken in three States, the actions were
not always effective because they generally did not bring
violators into compliance with their permits. Specifically,
major permittees (those discharging in excess of one million
gallons of wastewater per day) continually violated their
discharge permits and did not take necessary action to meet the
Clean Water Act statutory deadline for compliance. In spite of
frequent violations, Regional and State officials were reluctant
to escalate enforcement action to induce compliance and limited
their judicial referrals to facilities requiring court-ordered
compliance schedules by the Clean Water Act. The actions taken
in Florida, Georgia and Alabama, were not effective in returning
major NPDES violators in those States to compliance.
Georgia
Georgia did not initiate enforcement actions in a timely manner.
Specifically, the State took from 153 to 679 days before taking
formal enforcement action against 8 of 14 chronic violators, and
therefore in excess of the period for which the EPA directs
formal enforcement action be taken. Georgia allowed 679 days to
elapse before initiating formal enforcement action against
Griffin, 378 days before initiating formal enforcement action
against Macon, 338 days before initiating formal enforcement
action against Fulton County, and 282 days before taking formal
enforcement action against Dalton. Excessive delays for four
other chronic violators (Cedartown, Chatsworth, Chickamauga, and
Warner Robbins) ranged from 153 to 281 days. The delays were
particularly questionable because the facilities had histories of
noncompliance. These permittees continued to violate their
permits while they waited for Federal grants or experienced
delays in designing, bidding, and constructing treatment
facilities. The delays prompted Georgia's Chief, Water
Protection Branch to state in an office memorandum to Assistant
Director of Georgia's Environmental Protection Division:
"It's very frustrating to me that [a city]
continues to be very callous and refuses to
cooperate on these things. We bend over
backwards for them time after time and their
attitude is always to delay or fight. The
[city's] approach has always been to scare us
down with their lawyers. If we weren't going
to pursue it [proposed order], we shouldn't
have sent it out in the first place."
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Despite the foregoing expressed concern, the State never
escalated enforcement action and the permittee continued to
violate NPDES. The Region did not intervene and take the
enforcement lead in cases where Georgia's enforcement actions
were not timely. Regional officials said they thought Georgia
was doing a good job of enforcement.
The State of Georgia did not have procedures to escalate
enforcement action when a permittee violated administrative and
consent orders. Instead of escalating enforcement to civil
referral, Georgia officials preferred to work with municipalities
to achieve compliance. For instance, some permittees violated
construction schedules set forth in administrative orders up to
five times. The State's response was to amend the dates in the
existing orders. For example, Cedartown, Georgia violated an
administrative order to construct facilities on four separate
occasions while continually failing to meet interim effluent
limits also established by the administrative order. Georgia and
Cedartown signed several orders requiring the City to meet
interim effluent limits; each order was violated. Despite this
Georgia did not refer Cedartown for civil action. The failure to
enforce such orders negates their effectiveness and eliminates
their usefulness as a deterrent for this and other facilities.
Alabama
The Alabama Department of Environmental Management was less
timely than either the Region or the State of Georgia. Alabama
officials preferred a cooperative approach to compliance. They
did not believe in taking enforcement action against a permittee
once a compliance schedule had been established for constructing
facilities necessary to meet permit limits. Consequently, the
Clean Water Act statutory deadline, NPDES permit conditions, and
conditions of order were violated with little or no response
action from the State. The State's inactivity contributed to the
18 Alabama facilities that did not comply.
The State was not always timely in initiating formal enforcement
action against chronic violators. The State routinely issued
notices of violation, in some cases notices were issued quarterly
when the facility provided its quarterly discharge monitoring
report. For example, the East Alabama facility was issued 12
notices of violation for violating effluent limits before the
State took formal enforcement action with an administrative
order.
The administrating agencies did not escalate enforcement action
when compliance was not achieved expeditiously. Furthermore, the
agencies did not escalate even in cases where violations were of
existing orders. In addition, the Region generally did not take
action when the delegated States failed to aggressively enforce
NFDES requirements.
27
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Florida
The Region did not always act promptly to enforce facility
compliance. For at least six of the 18 facilities reviewed
(Arcadia, Key West, Melbourne D.B. Lee, Naples, Pahokee, and Port
St. Joe), enforcement action was not timely. For example, the
facility's at Arcadia, Florida was one of the most chronic NPDES
violators in the Region. From 1975 to 1986, the Region sent
Arcadia 13 notices of violations, five administrative orders, and
held three "show-cause" meetings. Only after 10 years of
repeated permit violations, did the Region escalate enforcement
by filing a civil referral against Arcadia in March 1986.
Arcadia was still reported in violation of both effluent
limitations and reporting requirements at December 31, 1987.
The Region did not escalate its own enforcement actions in the
nondelegated State of Florida. Fifteen of the 18 facilities
reviewed were chronic violators of NPDES requirements, meaning
they had appeared on the Quarterly Non-Compliance Report (QNCR)
for two or more quarters from September 1985 to December 1987.
None of the 15 chronic violators were on the QNCR for less than
four consecutive quarters. However, the Region did not escalate
enforcement to civil referral. The Region normally used civil
referral only to comply with the National Municipal Plan, and not
to induce compliance. Regional personnel stated they:
"Clearly escalated enforcement action when it
appeared that projects would not meet policy
goal dates. While other judicial actions
could have been taken if there were unlimited
resources on the part of Region, headquarters
and Department of Justice enforcement
efficiency dictated that judicial action be
taken when all other administrative avenues
were exhausted. The handling of all
facilities in noncompliance with orders with
judicial actions would have led to a lowering
of overall compliance due to lack of
attention to other dischargers."
Only two facilities in Florida were placed under judicial order
cause they did not meet the Clean Water Act deadline. The other
fifteen facilities in Florida that did not meet the deadline were
not under judicial orders because the Region had not determined,
in a timely manner, that they would miss the deadline. Regional
officials said they did not initiate judicial referrals against
some facilities because they would miss the deadline by only 90
days. The Region estimated this to be the case for six of the
fifteen facilities not on judicial schedules. Whether the
estimate is correct or not, the procedure is contrary to EPA
directives that stated if a facility will miss the July 1st
deadline, they should be on a judicially ordered compliance
schedule. The rationale is to ensure that the facilities do in
28
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fact comply with schedules imposed and to penalize them for not
complying with Federal statutes. The result is consistency in
enforcement against all permittees. It would be unfair for some
facilities to have taken necessary steps to ensure compliance by
the deadline and for others to get away with not complying.
Region 4 Oversight
The Region did not take any additional action against Georgia's
chronic violators. However, action may have been appropriate in
some cases, such as DaIton, Georgia. Dalton frequently violated
both its permit and enforcement orders issued by the State.
Since EPA had awarded substantial Federal grants to Dalton to
bring it into compliance with its permit, and based on the
recommendations of the National Municipal Policy, Dalton should
have been subject to priority enforcement actions for violations
of its permits. Regional personnel accepted excuses given by
both State and City personnel for the continual failure of the
City to comply with its permits. Regional personnel did not take
further, more stringent action against Dalton. As long as the
State was taking some form of action, the Region declined to use
its authority to escalate enforcement actions against the
violating facility, even though it was repeatedly found to be in
noncompliance with its NPDES permits.
The State did not escalate enforcement action when permittees
violated the terms of administrative orders. State officials
said that once a permittee was placed on a compliance schedule,
they did not pursue further enforcement action. These officials
reasoned that cities do not respond as readily to enforcement
actions for interim permit violations, once they have begun
expending resources to achieve compliance with final permit
requirements. As a result, facilities in Alabama were frequently
allowed to violate their interim permit. For example, when the
Ashland facility violated interim limits from August 19.87 to
March 1988, the State imposed a sewer moratorium. When interim
limits were still violated, the State changed the interim limits
rather than escalate enforcement to a civil referral. The same
events took place at the Catoma facility. The interim limits
were violated from November 1987 to February 1988, at which time
the State changed the interim limits. Interim limits are arrived
at based on the average limits a facility has actually been able
to achieve over the past twelve months of performance. The
purpose of the interim limit is to minimize the damage to the
environment while a facility is being upgraded to comply with its
permanent permit limits. When Alabama allowed violation of
interim limits, the potential negative impact on the environment
was not considered.
The Region did take additional action against one Alabama chronic
violator, Bayou La Batre. This City was sued by the Region after
ten years of continued violations where the State had not taken
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any significant enforcement action. Regional officials held
meetings with the permittee to determine causes of the City's
problems, which were identified as significant growth and
discharges from the seafood industry. In 1985, after determining
the City had made no improvements and had not enforced a
pretreatment program against the Seafood industry, the Region
planned civil action and stated in correspondence:
"Bayou La Batre, funded with EPA grants, has a long
history of noncompliance problems. . . The City
apparently has not shown any efforts to correct the
problems."
The Region escalated enforcement at Bayou La Batre when the
State's lack of enforcement became obvious. However, action may
have also been appropriate at such locations as Ashland,
Huntsville, and Fort Payne. For example, the State had issued
three administrative orders to Fort Payne for violation of
effluent limits. The City continued to violate effluent limits
and did not meet the July 1, 1988 deadline. In this case,
Regional personnel agreed with the State's action and philosophy
that it was inappropriate to take more stringent action against
violators that were making an effort to meet final permit limits.
Also, Regional personnel disagreed with EPA methodology for
establishing interim limits, and instead established less
stringent interim limits.
Region 5
For the cases we reviewed, Indiana and Ohio did not adequately
discharge their responsibilities for enforcing NPDES violations.
We found that the enforcement actions were neither timely,
appropriate for the type of violations, nor effective in
returning violators to compliance. Further, the penalties
assessed by Indiana and Ohio generally were not sufficient to
serve as a deterrent to violators and in some cases a penalty was
not even calculated. For example, our review in Ohio of ten
NPDES cases showed that only in six cases was a penalty
calculated. Further, the assessed penalty for four of the six
cases did not recover all the economic benefit. The assessed
amount ($88,000) was $549,775 less than the computed amount
($637,775). In addition, Region 5 did not always initiate
enforcement action when the States did not take action. These
conditions exist primarily because:
1. Generally Indiana relies on negotiation of compliance
schedules with permittees rather than aggressively
taking formal enforcement action.
2. Ohio procedures for, initiating enforcement action are
less stringent than required by EPA.
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Indiana Department of Environmental Management (Indiana) did not
adequately discharge its responsibility for enforcing NPDES
violations for the cases we reviewed. Timely and appropriate
enforcement action was not always taken because Indiana relied on
negotiation of compliance schedules with permittees rather than
aggressively taking formal enforcement action. Generally, Region
5 was not starting enforcement action when Indiana was not taking
timely and appropriate action. In addition, the penalties
assessed by Indiana were not sufficient to serve as a deterrent
against future violations.
Indiana Department of Environmental Management is currently
responsible for enforcing environmental regulations. Prior to
April 1, 1986, the Indiana State Board of Health was responsible
for enforcing environmental regulations.
We reviewed 10 cases, 6 industrial and 4 municipal, to determine
whether Indiana was adequately discharging its responsibility for
enforcing NPDES permits. Cases were selected based on a review
of the QNCRs for 1985 to 1987. We judgmentally selected 7 cases
from the 22 major facilities appearing on the QNCRs for 8 or more
quarters. We judgmentally selected the other 3 cases from the 28
major facilities appearing on the QNCRs for 5 to 7 quarters.
Indiana did not take timely action to resolve violations in any
of the 10 cases reviewed. Formal enforcement action should have
been taken within 60 days of a permittee appearing on the QNCR.
QNCRs are completed 60 days after the end of the quarter.
Therefore, formal enforcement action should be taken 120 days (60
days plus 60 days) from the end of the quarter in which a
permittee is in significant noncompliance (SNC). For example,
one facility was in SNC on December 31, 1979, but formal
enforcement action was not initiated until January 23, 1985, over
5 years later.
Indiana's attitude toward types of violations delayed the
enforcement process in some cases. For example, Indiana
personnel stated that enforcement action will not be taken
against a facility that is involved in Indiana's operator
assistance program. Enforcement action is needed to make the
facility aware of the seriousness of the violations and the need
to meet permit limits. Indiana will also not take action for
violations of interim limits during construction if it believes
that the facility cannot meet the interim limits. However,
interim limits need to be enforced to ensure the least amount of
harm to the environment during construction.
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Indiana's reliance on negotiation of compliance schedules also
delays the completion of the formal enforcement process, as shown
below.
Proposed Final Elapsed
Facility No. Order Order Days
2. 12/09/85 (a) 09/20/86 284
3. 01/13/87 09/11/87 240
7. 04/30/87 11/06/87 190
(a) Proposed Order not issued. Date shown is date
enforcement action was recommended.
Indiana can issue either a consent decree or an agreed order in
response to violations. For a consent decree, Indiana negotiates
a compliance schedule before the decree is issued. For an agreed
order, Indiana issues a proposed compliance schedule to the
facility, and the facility can appeal the proposed order, and
negotiate a different compliance schedule.
When Indiana took enforcement action in the 10 cases, it was not
in the range of responses recommended in the enforcement response
guide for 4 cases. The enforcement response guide recommends
administrative or judicial action for frequent violations of
final effluent limits. Two facilities were in violation of final
effluent limits. Indiana did not take enforcement action in
either case. Further, the enforcement response guide recommends
judicial action for frequent violations of interim limits or
compliance schedule in an administrative order. The other two
facilities continually violated administrative orders. Indiana
did not take enforcement action against one facility, although
Indiana has issued and modified administrative orders for the
other eight rather than escalating enforcement action.
The lack of timely and appropriate enforcement actions has
resulted in ineffective enforcement. Four of nine facilities did
not return to compliance.
Title 40 CFR 123.26 requires that delegated State agencies have a
written enforcement management system similar to EMS. Since its
reorganization in 1986, Indiana had been working on a written
EMS. At Region 5's direction, Indiana planned to revise and
update its EMS in fiscal 1988. Indiana reports that the EMS
revision was recently completed and was sent to Region 5 for
review on November 18, 1988. After Region 5's review, Indiana
was to finalize the revisions by December 31, 1988.
Region 5 Oversight of Indiana
Even though Indiana did not take timely or appropriate
enforcement action for the violations, Region 5 took enforcement
action in only one of the ten cases reviewed. Region 5 took
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enforcement action against one facility in 1987, but only after
several administrative actions by Indiana were ineffective in
returning the facility to compliance.
Region 5 generally would not take enforcement action once Indiana
started an enforcement action by filing a complaint or Indiana
commited to starting an enforcement action. Once Indiana filed a
complaint or committed to taking action, Region 5 would not take
action since it would be a duplication of effort. After a
complaint was filed, a compliance schedule was negotiated.
Negotiation of the compliance schedule delays finalization of the
enforcement action. According to Region 5 personnel, Indiana did
not always take enforcement action as quickly as it informs
Region 5 that it would. For example, Indiana told Region 5 that
they would issue an order to a particular facility by December
1986. Indiana did not issue the final order until November 1987,
11 months later.
The memorandum of agreement and National Guidance for Oversight
of NPDES Programs states that EPA may begin enforcement action
when the State does not take timely and appropriate enforcement
action. Region 5 continues to defer enforcement to the State
once the State begins, or commits to begin, enforcement action.
Region 5 needs to take action to ensure that continued progress
is made toward timely resolution of the violations. If not,
Region 5 should begin enforcement action.
Ohio
Ohio Environmental Protection Agency (Ohio) did not adequately
discharge its responsibility for enforcing NPDES violations for
the cases we reviewed. Timely and appropriate enforcement
actions generally were not taken for NPDES violations because
Ohio procedures for initiating enforcement action were less
stringent than EPA's. In addition, penalties were not always
calculated and assessed following Ohio's civil penalty policy.
As of June 30, 1987, there were 295 major facilities in Ohio. We
reviewed the QNCRs for three of five Ohio districts for 1985 to
1987. From 1985 to 1987, 37 major facilities appeared on the
QNCRs for 8 or more quarters. We judgmentally selected 12
municipal cases to determine whether Ohio was adequately
discharging its responsibility for enforcing NPDES permits.
Industrial cases represented only 6 of the 37 facilities in
noncompliance for 8 or more quarters. Each of the industrial
facilities returned to compliance by the end of fiscal 1987.
Therefore, our review did not include any industrial facilities.
EMS defines when the administering agency should take enforcement
action for effluent violations. Formal enforcement action should
be taken within 60 days of a permittee appearing on the QNCR.
QNCRs are completed 60 days after the^end of a quarter.
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Therefore, formal enforcement action should be taken within 120
days (60 days plus 60 days) from the end of the quarter in which
a permittee is in significant noncompliance (SNC). The
definition of SNC specifically includes violations of monthly
average limits, but not violations of daily maximum limits.
Violations of daily maximum limits are included under the broad
definition of other violations with water quality or health
impacts. Whether a violation affects water quality or health is
left to the judgment of the administering agency.
There were 7 municipalities with monthly average violations. The
remaining 5 municipalities exceeded daily maximum limits. Ohio
did not take timely action to resolve the monthly average
violations in 6 of the 7 cases reviewed. Ohio took timely action
to resolve violations at one facility. Ohio did not always take
timely action because its procedures for initiating enforcement
action are less stringent than those contained in the EMS.
Permittees in SNC are reported on the QNCRs. QNCRs are finalized
60 days after the end of the quarter. Ohio procedures require
that enforcement action begin when a violator has been in SNC for
two quarters. This would be 150 days (60 days plus 90 days)
after the end of the first quarter of SNC. EMS procedures
require that enforcement actions be completed 60 days after the
first quarter of SNC. This would be 120 days (60 days plus 60
days) after the end of the first quarter of SNC. Therefore, Ohio
procedures did not require Ohio to even begin enforcement action
until 30 days after the date when EMS requires the enforcement
action to be completed. Even though Region 5 performs annual
program evaluations to ensure that Ohio is adequately
administering the NPDES program, and includes a review of the
enforcement management system, the 1986 and 1987 program
evaluations did not mention that Ohio's enforcement management
system is less stringent than EMS.
Region 5 personnel informed us that they were not aware of the
difference between Ohio procedures and EMS. Region 5 is
currently reviewing a draft revision to Ohio's procedures.
Region 5 personnel stated that they will ensure that the revised
procedures are as stringent as EMS.
The enforcement actions taken by Ohio were not in the range of
responses recommended in the enforcement response guide in 4 of
the 7 cases with monthly average violations. The enforcement
response guide recommends administrative or judicial action for
frequent violations of final effluent limits. Judicial action is
recommended for frequent violations of interim limits or
compliance schedule in an administrative order.
Ohio did not take formal enforcement action in three of the five
cases with daily maximum limit violations. In the two cases
where enforcement action was taken, enforcement actions were not
taken until more than one year after the violations started.
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Even though the violations at five of the facilities did not meet
the specific criteria in EMS, the violations were significant
enough to warrant timely enforcement action.
The definition of SNC and State workplans direct the focus of
enforcement to violations of monthly average limits. The
enforcement program is evaluated based on the number of
facilities with SNC that have been resolved. There is specific
criteria for when violations of monthly average limits are
significant and require enforcement action. Conversely, the
determination that a violation of daily maximum limits is
significant is left to the judgment of the State. Since the
State is evaluated on the resolution of SNCs, there is little
incentive to classify daily maximum violations as SNC.
Ohio completed enforcement actions against only one of the five
facilities. The enforcement action against Facility 4 (Exhibit
4) was effective in bringing the city to compliance. Even though
the facility did return to compliance, it was more than one year
after Ohio issued the administrative order.
Even though Ohio was not taking timely enforcement action, Region
5 took action in only three of the seven cases we reviewed which
had monthly average violations. Region 5 took enforcement action
against one facility prior to the facility appearing on the
exceptions list. Action was taken against the second facility
four months after the facility appeared on the exceptions list.
In contrast, Region 5 did not take enforcement action against the
third facility until more than three years after violations
started.
Region 5 took enforcement action in one of the five cases we
reviewed which had daily maximum limit violations. However,
enforcement action was not taken within a reasonable amount of
time. The facility was violating its permit for 17 months before
Region 5 took enforcement action. We were informed that Region 5
generally directs its enforcement actions against facilities that
appear on the exceptions list. The exceptions list contains
facilities that have been in SNC for two quarters where the State
has not taken enforcement action. As explained above, there is
little incentive to classify daily maximum violations as SNC.
Therefore, the five facilities with only daily maximum violations
would not be included on the exceptions list. However, even
though there were daily maximum violations at this one facility,
Region 5 did not take enforcement action.
Region 5 personnel stated that 37 major facilities on the QNCRs
for 8 or more quarters was unacceptable. However, the Region and
States number one priority during fiscal 1987 was to ensure that
municipalities that would not meet the July 1, 1988, deadline
were placed on enforceable judicial schedules. This affected the
number of enforcement actions taken for permit violations.
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The definition of SNC focused the enforcement efforts of not only
the State, as discussed above, but also Region 5, on violations
of monthly average limits. EPA's Strategic Planning and
Management System (SPMS) evaluates the Region's performance in
resolving instances of SNC. Therefore, Region 5 focuses its
enforcement effort on monthly average violations, rather than
daily maximum violations. Even though the Region did not
classify the daily maximum violations as SNC, the violations were
significant enough to warrant enforcement action.
A common concern expressed by the regions and States in response
to the regional audit reports is that the cases included in the
audit samples were not representative of their enforcement
activities. They believed a review of the overall compliance
rate in the region would be a better measure of their
effectiveness than focusing on what they termed were their
problem cases. This view was also expressed in the Headquarters
response to the draft consolidated audit report.
We disagree with this view, since a majority of the facilities
will comply voluntarily and the compliance rate would not
necessarily be indicative of the effectiveness of enforcement
actions. Our position is evaluating how they handled their
problem facilities would be a better measure. Had appropriate
enforcement actions been taken on a timely basis, many of these
facilities would not have become problem facilities.
As can be seen from the results of the four audits discussed, the
NPDES enforcement program was not fully effective. A key
weakness was they have many competing priorities which adversely
impact on the enforcement program. The lack of efficient,
effective, and aggressive enforcement was evident in the review
of the major facilities which were chronic violators. Case after
case with inappropriate enforcement responses, untimely
responses, repetitive enforcement actions, enforcement responses
not escalated, and negotiated agreements which resulted only in a
written document; demonstrate the need for an emphasis on
enforcement programs with actions that are timely and appropriate
and result in compliance. The time to emphasize this is now.
There must be a commitment from Headquarters, the Regional
Administrators, and the States to make the enforcement program
fully effective. It is imperative that the enforcement focus of
the regions be to bring the facilities into compliance, not
merely removing it from the exceptions list. In addition, the
issue of available sanctions to be applied to States must be
addressed. If the regions are to have any credibility when
demanding improved performance in the area of enforcement, they
must have appropriate sanctions available to obtain cooperation
when it is not voluntary and immediately forthcoming.
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RECOMMENDATIONS
We recommend that the Assistant Administrator for the Office of
Water, in conjunction with the Assistant Administrator for
Enforcement and Compliance Monitoring, take the following
actions:
1. Reemphasize to EPA regional managers and delegated
States the need to take timely and appropriate enforcement
actions for NPDES permit violations.
2. Ensure that enforcement actions taken by EPA regions and
delegated States are consistent with the provisions of the
Enforcement Management System Guide, or equivalent State
enforcement guides, and that both informal and formal
enforcement actions are escalated to progressively stronger
actions to bring violators into compliance with their
permits.
3. Institute a more aggressive Headquarters oversight
program to hold regions and States accountable for assuring
that violating facilities comply with the provisions of
enforcement agreements. Work with the regions and States to
improve delegated enforcement activities of NPDES permits.
4. Use Headquarters management review teams to regularly
evaluate regional NPDES enforcement programs, including
activities in the recommendations above.
5. Establish evaluation criteria in the Strategic Planning
and Management System to assess the regions' performance
based upon effectiveness of enforcement rather than strictly
in terms of numbers of enforcement actions.
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2. SPA'S CIVIL PENALTY POLICY NOT FOLLOWED IN ASSESSMENT OF
PENALTIES
EPA was not assuring that penalties recover the economic benefit
enjoyed by violators for continued noncompliance. The penalties
were not calculated and assessed by EPA regional offices and
States in accordance with EPA and State penalty policy
procedures. The penalty assessments themselves in some instances
appear to have become an end in themselves as an enforcement
action rather than being the focus for use as a deterrent to
continued noncompliance. As a result, penalties were
insufficient as incentives to bring violating facilities into
compliance; they did not promote fair and equitable treatment of
the regulated facilities, and in fact may even served as a
disincentive for compliance.
EPA issued three penalty policies for CWA violations. The 1980
penalty policy enumerates general principles for determining
appropriate penalties that the government will seek in individual
cases. Assessed penalties are based on four factors: (1) the
harm done to public health or the environment; (2) the economic
benefit gained by delayed compliance; (3) the degree of
recalcitrance of the violator; and (4) any unusual or
extraordinary costs thrust upon the government. If the case is
settled before trial, a reduction is allowed to reflect EPA's
likelihood of proving the violation in court. This reduction is
not to be more than 25 percent, except in unusual circumstances.
In 1984, EPA issued general enforcement guidance which
established a single set of goals for penalty assessment in
enforcement actions. These goals were deterrence, fair and
equitable treatment of violators, and swift resolution of
environmental problems. The 1984 policy included guidance for
computing an appropriate penalty. Under the 1984 policy, the
penalty includes an economic benefit and a gravity component, the
sum of which is equal to a "preliminary penalty." The economic
benefit component is the benefit the violator received from
delayed or avoided costs. It is Agency policy not to settle for
less than the economic benefit unless there are compelling public
concerns or litigation practicalities. The gravity component
reflects the actual or potential harm, importance of the
regulatory scheme, and the size of the violator. The gravity
component may be increased or decreased to reflect differences
between violators. These differences include the degree of
willfulness of the violation, degree of cooperation, history of
noncompliance, and ability to pay.
In response to the 1984 guidance, the Office of Water issued a
program specific penalty policy on February 11, 1986. The 1986
penalty policy is similar to the 1984 guidance in that the
penalty includes an economic benefit component and a gravity
component. The preliminary penalty can be increased based on a
38
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history of recalcitrance. The preliminary penalty can be reduced
based on litigation considerations and the ability of the
violator to pay a penalty.
We reviewed the calculation and assessment of civil penalties in
Regions 2, 4 and 5. This had not been included in the scope of
the pilot audit performed in Region 1. Further, the review was
limited to civil penalties since none of the regions had assessed
administrative penalties authorized by the 1987 Amendments to the
Clean Water Act during the period under audit. The three
regional offices and the States within their jurisdiction
generally did not follow EPA's, or the respective State's,
established penalty policies. The penalties assessed generally
did not recover the economic benefit derived by the facility
through its continued noncompliance. Further, the Regional
offices and the States need to better document decisions reached
regarding penalties. This includes maintaining support for the
amount of the penalty initially calculated and ultimately
assessed, especially the basis for any downward adjustments.
Further, assessment of penalties has been inconsistent for
similar violations and between municipal and industrial
dischargers.
Economic Benefit Not Recovered
In 46 of the 69 cases reviewed in the three regions, the penalty
assessments were not sufficient to recover the economic benefit
derived by the violators for noncompliance. Either the initial
penalty calculated did not provide for it or subsequent downward
adjustments eliminated it.
Region 5
As discussed in the audit report on Region 5, five of the six
cases reviewed included documentation to show the economic
benefit of delayed compliance.
The preliminary penalties were reduced, to arrive at a
recommended penalty, because of litigation considerations and the
ability of the violator to pay a penalty. According to Region 5
personnel, the recommended penalty is based on what the case
engineer and attorney believe the violator will pay rather than
on the penalty policy. We reviewed the penalty calculations used
to assess the final penalty and found that the preliminary
penalties were reduced substantially in three cases with very
little documentation to support the reductions.
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Case No.
1.
5.
6.
Preliminary
Penalty
$ 528,000
$3,348,400
$9,056,300
Adjustments
Litigation
Consideration
$ 378,000
$3,188,400
$2,000,000
Ability To
Pay
$ -0-
$ 120,000
$6,981,300
There was very little documentation to support the reduction for
litigation consideration in the three cases. The adjustment for
litigation consideration is subjective and the amount is based on
the "considered" opinion of Regional Counsel.
The adjustment for ability to pay, however, should be
quantifiable. Agency policy is not to assess a penalty that is
beyond the financial means of the violator. The violator,
however, bears the burden to demonstrate an inability to pay.
The case files did not include documentation to support the
adjustment for ability to pay.
Region 5 was reducing the preliminary penalty substantially for
litigation considerations and ability to pay a penalty. Since
the reduction for litigation considerations is subjective, the
case file should include a more detailed explanation for the
reduction. Before a reduction for ability to pay is allowed, the
violator should be required to submit financial information
supporting its ability to pay a penalty. The burden of proof for
inability to pay is on the violator and not on EPA. All
reductions to the preliminary penalty should be reviewed to
ensure that the reductions are appropriate. Region 5 personnel
agreed that the Region can improve on documenting penalty
adjustments during the course of litigation of a case.
The penalties assessed in these three cases were $10.9 million
dollars less than the calculated economic benefit of
noncompliance and contained little documentation to justify the
substantial reductions.
Case No
1.
5.
6.
Total
Economic
Benefit
$ 183,000
2,916,000
8,035.000
511,134.000
Penalty
Assessed
$137,500
15,000
50.000
$202.500
Difference
$ 45,500
2,901,000
7.985.000
$10.931.500
Benefit
Assessed
75.1
0.5
0.6
40
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' -I
Region 4 ' • • \ ij£ '\
In Region 4, the delegated State of Alabama generally did not
utilize penalty assessments as an enforcement tool. While the
State's procedures provided for penalty assessment, they did not
require that penalties recover the economic benefit from
violators. The State used sewer moratoriums as its most
stringent method of enforcement. In the three cases selected for
review, the penalties represented the amount of the attorney's
fees to process orders. Neither these two nor the remaining case
considered economic benefit to the violator.
We noted 24 cases where Georgia proposed penalties for violating
facilities. There was only one case where it appears the
economic benefit entered into the calculation. In that case,
however, the calculated penalty exceeded $1 million while the
proposed penalty was reduced to $57,000 and the collected amount
was $15,000. The calculated penalty was not used because it was
considered excessive. The State utilized the consent order
process and negotiated penalties with the violators which were
less than were called for by the States enforcement guide. It
appears that penalties were assessed, not because of their
potential deterrent effect, but because EPA policy called for
such enforcement action for chronic violators. While they may
have met that requirement, they were ineffective in returning the
violators back to compliance.
We also reviewed the penalties assessed by the Region on the
nondelegated State of Florida. For the 11 cases reviewed, the
final settlement penalties proposed represented 6 percent of the
economic benefit for those facilities which exceeded $38.5
million. While there was documentation to establish the basis
for reducing the penalties in four cases, it was not available
for the remaining seven.
Region 2
The procedures established by New York and New Jersey did not
provide for recovering the economic benefit through penalties.
The basis for penalties assessed in New York and New Jersey were
not adequately documented. Penalties were reduced without
adequate documentation Justifying the basis. As noted, generally
the economic benefit to the violator is not being recovered
through penalty assessments nor are the assessed penalties
effective in returning the violators to compliance.
The purpose of recovering the economic benefit of noncompliance
is twofold. The first is to deter noncompliance, and the second
is to promote fair and equitable treatment of the regulated
community. Allowing a violator to benefit from noncompliance
41
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punishes those who have complied with the law by placing the
violator at a competitive advantage, creating a disincentive for
compliance.
The regions and States were not using penalties effectively as an
enforcement tool. While complying with EPA policy in the
assessment of penalties will not guarantee success in returning
violators to compliance, it must be concluded that the procedures
and policies followed in these three Regions were not effective.
Inconsistencies in Penalty Assessments
Region 5 and Region 2 demonstrated inconsistencies in the
assessment of penalties between municipal and industrial
dischargers. Assessed penalties for industrial violators more
closely correspond to recommended penalties than those for
municipal violators as noted belowt
Case No.
Region 2
1.
2.
3.
4.
5.
(2)
(2)
(2)
(1)
(1)
Region 5
1
2
3
4,
5,
(1)
(1)
(2)
(2)
(2)
6. (2)
Recommended
Amount
$ 10,000
21,000
15,000
5,000
45,000
150,000
100,000
45,000
50,000
40,000
75,000
Assessed
Amount
-0-
-0-
$ 5,000
5,000
45,000
137,500
100,000
26,000
50,000
15,000
50,000
Difference
$10,000
21,000
10,000
-0-
-0-
12,500
-0-
19,000
-0-
25,000
25,000
Percent
Assessed
-0-
-0-
33
100
100
91.7
100.0
57.8
100.0
37.5
66.7
(1) Industrial violator
(2) Municipal violator
This inconsistency in penalty assessments between municipal and
industrial facilities further demonstrates the reluctance of the
States to take the necessary enforcement steps against municipal
violators to bring them into compliance.
There were also inconsistencies in one State in Region 2 in
penalties assessed for similar violations. NJDEF established
criteria for assessing penalties for discharge violations and
nondischarge violations. These were inconsistencies in the way
penalties were assessed for both types of violations. The
following three examples illustrate the inconsistencies noted for
discharge violations.
42
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Example 1 - In its November 30, 1987, AO to the Wrightstown
Municipal Utilities Authority, $14,062.50
(5 parameters x $2,812.50) of the $50,562.50 penalty
pertained to violations of five parameters over a
seven month period. Therefore, each parameter's
violation was considered one violation without regard
to frequency.
Example 2 - NJDEP's October 16, 1987, AO issued to Borden, Inc.
included a $15,000 ($5,000 x 3 parameters) discharge
penalty (total penalty of $25,000) for violations of
three parameters between February 1986 and March 1987
(12 months). Consideration was not given to the fact
that more than one parameter was violated in 9 of 12
months or frequent recurring violators occurred.
Example 3 - NJDEP's November 12, 1987, AO issued to the Aberdeen
Township Municipal Utilities Authority assessed a
discharge violation penalty of $48,750. Since DMRs
from May 1, 1986 to May 31, 1987, (13 months)
indicated at least 41 discharge violations of various
parameters, NJDEP computed a "potential" liability of
$153,750 ($3,750 x 41 violations) and treated each
recurring monthly violation as a separate and
distinct violation. However, instead of assessing
the $153,750 "potential" penalty, NJDEP combined all
monthly parameter violations into a single violation
to yield a monthly penalty amount and $48,750 was
assessed ($3,750 x 13 months).
To serve as an effective deterrent, the violators need to know
what penalties they face for continued noncompliance.
Inconsistent application of the penalty criteria further
diminishes the effectiveness of the penalty as an enforcement
tool.
Penalties are a critical element in EPA's approach to deterring
violations. Making the cost of violating the CWA more expensive
than taking appropriate action to comply can be a powerful
incentive for compliance. Insufficient and inconsistent
penalties, however, provide economic incentives to violators,
delay compliance with regulatory requirement, and fail to achieve
the deterrence goal of the EPA's enforcement policies.
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RECOMMENDATIONS
We recommend that the Assistant Administrator for Water, in
conjunction with the Assistant Administrator for Enforcement and
Compliance Monitoring reemphasize to EPA regional managers and
delegated States:
1. the importance of adhering to EPA's Penalty Policy and
assuring that penalties assessed by the delegated States do
so as well;
2. the importance of penalties as a tool to help assure
compliance with the CWA; and,
3. the importance of maintaining adequate documentation to
support penalty calculations and any subsequent adjustments
made to arrive at assessed penalty amounts.
We also recommend that future mid-year reviews focus on the
effectiveness of penalty assessments in relation to facilities'
compliance with the enforcement actions.
44
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3. DEADLINES ESTABLISHED BY CONGRESS IN THE CLEAN WATER ACT
PROTECT WATER QUALITY WERE NOT MET
EPA did not assure that all publicly-owned treatment works
(POTWs) complied with the July 1, 1988, deadline mandated by the
Clean Water Act for meeting treatment levels necessary to protect
water quality. In three of the regions included in our review,
323 (or 18 percent) of the 1,763 major POTWs did not meet the
deadline. This was due to the reluctance of both EPA and the
States to enforce against POTWs that had not been awarded Federal
construction grant funds and the resulting lack of effective and
aggressive enforcement which resulted. As a result, these
facilities continue to discharge in violation of their NPDES
permits to the detriment of the environment.
The Clean Water Act (CWA) originally required all POTWs to
achieve a secondary level of sewage treatment, or any additional
treatment levels necessary to protect water quality by July 1,
1977. Congress amended the CWA to extend the 1977 compliance
date to July 1, 1983. Under the amendment EPA could extend this
compliance date for eligible projects, but only if compliance was
beyond the municipality's control due to reductions in Federal
financial assistance or changed construction conditions. EPA
could not extend the deadline for compliance beyond July 1, 1988.
Since Congress extended the deadline on two previous occasions,
municipalities and States were uncertain about whether the CWA's
deadlines would again be changed. Title II of the CWA
established the Federal construction grants program to help
communities pay for a large part of the high construction costs
of treatment facilities. Many cities delayed action waiting to
become eligible for these grant funds. However, the amended CWA
required compliance with the secondary treatment provisions
regardless of the availability of Federal funding. Federal
courts affirmed that municipalities could not use waiting for
Federal grants as an excuse for not complying with the CWA.
In an attempt to resolve the uncertainty, EPA issued the
National Municipal Policy (NMP) in January 1984. Through the
NMP, the Agency emphasized that POTW compliance with the deadline
in the CWA was necessary whether or not they received Federal
funds. The policy also established EPA's goal for compliance by
all facilities as soon as possible but no later than the deadline
established in the CWA. The NMP provided a strategy for bringing
the POTWs into compliance, with the presumption that any
extension for meeting compliance beyond the deadline would be
through a judicial enforcement schedule. To reemphasize the
importance of placing facilities that exceed the July 1, 1988,
deadline on court imposed schedules, the Director of the EPA's
Office of Water Enforcement & Permits stated the following in the
July 1987 NMP Enforcement Strategy Memorandumi
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"EPA and the States should not use administrative
orders for major publicly-owned treatment works with
schedules that extend beyond July 1, 1988? all such
schedules should be contained in judicial orders. EPA
should also consider judicial action for minor
publicly-owned treatment works; where available
resources preclude judicial action, EPA and the States
should use administrative orders with penalties."
EPA Headquarters encouraged the regions to track State referrals
closely to ensure that the penalties and schedules met the
requirements of the NMP, and that all violations of the deadline
were addressed by Federal or State judicial referrals. The goal
of each region and delegated State was to ensure compliance of
all POTWs as soon as possible, but no later than July 1, 1988.
From 1984 to July 1, 1988, the number of POTWs in compliance
increased through voluntary compliance and Federal and State
enforcement efforts. The NMP, however, was not as successful as
it could have been. The NMP universe was those facilities
identified as being in jeopardy of not meeting the July 1, 1988
deadline. This universe was then to be used as a priority for
enforcement. We reviewed the three EPA regional offices (Regions
2, 4, and 5) where our field work was performed to assess their
compliance with the July 1, 1988 deadline^ Of 755 NMP facilities
in the three regions, the Administrator reported in a press
briefing on July 27, 1988, that 242 (36 percent) of the major
POTWs in these three regions (423, or 29 percent nationwide) did
not meet the CWA deadline. While some of these are currently on
enforceable schedules, which should ultimately lead to
compliance, others had not been referred for judicial actions and
others have had no formal enforcement actions at all. Of the
1,763 major POTWs in the 16 States within these regions'
jurisdictions, our review disclosed that 18 percent missed the
July 1, 1988 CWA deadline:
Region
2
4
5
Totals
Total Major
POTWs
410
682
671
POTWs That Did Not Meet
The 7/1/88 Deadline
Number Percentage
1,763
123
90
IIP.
323
30
13
18
These figures differ from the reported noncompliance rate of 14
percent for the three regions (11 percent nationwide) for two
reasons. The Administrator reported that facilities in
noncompliance did not include 48 facilities which either were
anticipated to be in compliance within 90 days of the deadline,
or had construction completed but had not had effluent data
46
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verified. In addition, 33 facilities were erroneously excluded
from reported statistics, including POTWs which were not
classified as NMP facilities but which missed the deadline.
Recognizing that the deadline for compliance has passed, it is
imperative that the Agency move to bring these facilities into
compliance as quickly as possible. To do this, the Agency needs
to assess the reasons for the failure of the NMP to achieve a
higher success rate, and develop viable solutions to overcome
these problems. One significant problem that has resolved itself
with the passage of time is the credibility of the deadlines
established by Congress. Given the fact that the deadline had
been twice before extended, both the States and EPA anticipated
yet another extension. By the time the States realized that no
additional extensions would be made by the Congress, it was not
possible with the resources available at that time to bring all
facilities into compliance by the deadline. It would have been
possible to bring more facilities into compliance had EPA
followed a more aggressive enforcement policy as discussed in
Finding 1.
Headquarters needs to establish the urgency with which all
parties now need to proceed to avert additional damage to the
environment. Priorities, goals and deadlines need to be
established to bring facilities into compliance as quickly as
possible. Headquarters can further contribute to the success of
this effort through vigorous monitoring, including assessment of
the effectiveness of enforcement actions during mid-year reviews.
Regions and States must be held accountable for pursuing and
meeting those priorities, goals and deadlines. Compliance with
the Clean Water Act can be improved if EPA puts forth a more
active role in overseeing the NPOES enforcement program in
delegated States.
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RECOMMENDATIONS
We recommend that the Assistant Administrator for Water:
1. Carry forward the NMP strategy for those facilities
which have not yet made the Clean Water Act deadline of
July 1, 1988, in order to give these facilities the
additional high-level management attention which they merit.
New Priorities, goals, and deadlines should be established
as warranted in order to bring these facilities into
compliance with the Act as soon as possible.
2. Monitor at EPA Headquarters the regions' and States'
progress through evaluation of the effectiveness of their
enforcement actions against these facilities and oversight
of States' enforcement programs during the course of mid-
year reviews and in the Strategic Planning and Management
System.
48
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Appendix II
REPORT DISTRIBUTION
Headquarters
Assistant Administrator for Water (WH-556)
Assistant Administrator for Enforcement
and Compliance Monitoring (LE-133)
Associate Administrator for Regional Operations and
State/Local Relations (A-101)
Associate Administrator for Congressional and
Legislative Affairs (A-101)
Associate Administrator for Communications and
Public Affairs (A-101)
Office of the Comptroller (PM-225)
Agency Followup Official (PM-225)
Attns Director, Resource Management Division
Agency Followup Official (PM-208)
Attn: Director, Program Operations Support Staff
Office of the Inspector General (A-109)
Region 1
Regional Administrator
Regional Audit Followup Coordinator
Divisional Inspector General for Audits, BAD
Region 2
Regional Administrator
Regional Audit Followup Coordinator
Region 4
Regional Administrator
Regional Audit Followup Coordinator
Divisional Inspector General for Audits, SAD
Region 5
Regional Administrator
Regional Audit Followup Coordinator
Divisional Inspector General for Audits, NAD
49
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Appendix I
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
OCT 26
MEMORAKDOM
SUBJECT: Jraft Consolidated Report on the National Pollutant
: Discharge Elimination System Permit Enforcement Program
FROM:
TO:
Rebecca w. Hanmer, Deputy Assistant Administrator
Office of Water
Ernest E. Bradley, III
Assistant Inspector General for Audit
We have reviewed the draft Consolidated Report on Audit of
The National Pollutant Discharge Elimination System (NPDES)
Permit Enforcement Program, transmitted by your memorandum dated
August 11, 1989. We appreciate the opportunity afforded us
to comment on this report.
This audit includes information obtai- -d during separate
audits of four Regional offices (Regions I II, IV and V). All
four Regional offices have had an opportun y to respond to the
factual information and to verify statistics within the separate
audit reports. Due to this fact and due to time constraints,
discussion will be limited to the following general comments in
response to some overall conclusions drawn from the report,
followed by Attachment A which contains a more detailed response
to each of the recommendations.
While we agree that many of the cases cited in the report
were mishandled, at least to some extent, by using an audit
methodology that only included problem cases, the audit is not an
accurate assessment of the NPDES enforcement program. As a
result, we strongly disagree with the general conclusions. The
finding that enforcement is ineffective ignores the fact that 78%
of all SNCs in FY 1988 received timely and appropriate
enforcement. This is the highest percentage in the Agency and
has increased each year since we began tracking in FY 1986.
51
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In addition, the specific data in the report and indeed the
recommendations, do not support the general conclusions, in
fact, we do not disagree with many of the specific
recommendations, as many of them merely reaffirm policies and
management systems we already have in place. However, the
general conclusions in the report must be changed to accurately
reflect the substance of the report.
Not only are the vast majority of SNCs handled properly, but
the fact that the audits easily identified problem cases using
the tracking systems we designed to highlight problems, shows
that management of the enforcement program is effective. The
point that not all cases receive effective and prompt enforcement
is more an indication of the impossibility of reacting to all
instances of noncompliance, than lack of will to enforce. A good
indication of the active involvement EPA has in approved States
is the number of enforcement actions taken; EPA issued 326
Administrative orders, and 62 judicial referrals in FY 1988 in
approved States. We believe the current record of enforcement
with the NPDES provisions of the CWA is a sterling example of a
strong enforcement program.
The report also fails to recognize the progress the program
has made in the past several years. The f-ort examines cases
issued beginning in FY 1985. In 1985, onl; 60% of the municipal
facilities had been constructed to meet firs! effluent limits.
The remainder of the regulated community w -, out of compliance
and/or on long or unenforceable schedules. Because the record
for compliance by municipal facilities was diminutive, EPA began
an aggressive program to ensure that municipal facilities were
constructed to meet final permit limits by July 1, 1988.
Currently, 90% of major municipal facilities have completed
construction to meet final effluent limitations of their permits.
The rest are either on mandated schedules which we are
monitoring, or under enforcement action, where non-compliance is
detected, enforcement action is timely and appropriate, as
evidenced by an Exceptions List ranging from 2% to 3%. while the
program's record is good, we agree we can improve and will work
untiringly to do so. However, we believe a characterization of
the enforcement program as ineffective does not reflect the facts
and is incorrect. As an audit of the effectiveness of
enforcement, the report should acknowledge the successes of the
program as well as any weaknesses.
If you have any questions about our comments, please contact
Jim Elder, Director of the Office of Water Enforcement and
Permits (475-8488) or Richard Kozlowski, Director, Enforcement
Division (475-8304).
52
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Attachment
RESPONSES TO SPECIFIC RECOMMENDATIONS
I. EPA Has Not Effectively Discharged its Enforcement
Responsibilities under the Clean Water Act
Recommendation tl;
"Reeraphasize to EPA Regional managers and delegated States
the need to take timely and appropriate enforcement actions for
NPDES permit violations."
Response to Recommendation II:
We will continue to reemphasize to EPA Regional managers and
delegated states the need to take timely and appropriate actions
for NPDES permit violators as follows:
i
o Timely and appropriate enforcement is a constant them* of
the office Director, Office of Water Enforcement and Permits,
during Branch Chiefs' or Water Division Directors' meetings. It
is also one of the themes highlighted dur ig OW mid-year
evaluations.
o Each year OWEP is required to pre are a report on timely
and appropriate enforcement which is incc ^orated into an overall
Agency report to the Administrator. In an effort to show
significant problem areas, the report includes Region specific as
veil as State specific statistics and distinguishes between
municipal and nonmunicipal facilities. It establishes a
framework from which the OWEP office Director can determine
progress in the area of timely and appropriate enforcement. This
information is then utilized to reemphasize the need for timely
and appropriate enforcement to regional managers. While
Headquarters has direct responsibility for oversight of regional
offices, the responsibility for oversight of state offices rests
with the Regions.
o Additionally, a minimum goal was established by the OWEP
Office Director to have no more than 2% of all major facilities
appear on the Exceptions List, an indication of timely and
appropriate enforcement. Exceedances of this goal were discussed
during FY 1989 mid-year visits and were addressed in the follow
up mid-year reports and will be a continuing theme in future
evaluations.
53
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"Ensure that enforcement actions taken by EPA Regions i.-.i
delegated States are consistent with the provisions of the
Enforcement Management System (EMS) Guide, or equivalent State
enforcement guides, and that both informal and formal enforcement
actions are escalated to progressively stronger actions to bring
violators into compliance with their permits."
Response to Recommendation 12;
The current "A Guide to the Office of Water Accountability
System (OWAS) and Mid-Year Evaluations Fiscal Year 1990" includes
an activity which specifically relates to update and use of the
EMS procedures. Beginning in October 1989, the annual process of
revising these measures will be underway. At that time OWEP
intends to reevaluate qualitative measures for ensuring
consistent enforcement in accordance with the EMS Guide as well
as ensuring escalation of progressively stronger enforcement
actions. These qualitative measures are one means used during
the mid-year evaluation process for evaluating Regional
performance. In the interim, for FY 1990, OWEP will place a
stronger emphasis on these issues during mid-year evaluations^
Re, coipmenda t ion 13;
"Institute a more aggressive Headquarters oversight program
to hold Regions and states accountable for assuring that
violating facilities comply with the provi ions of enforcement
agreements. Work with the Regions and Sta~
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Recommendation *4:
"Use Headquarters management review teams to regularly
evaluate regional NPDES enforcement programs, including
activities in the recommendations above."
« Response to Recommendation »4;
We will consider reinstituting the approach which we used
prior to 1984 where OWEP conducted comprehensive on-site annual
file audits within each Region. Because of the resources
involved and the increased emphasis on reducing the oversight
role over regions, these audits were replaced by the current mid-
year process.
Recommendation lj>!
"Establish evaluation criteria in the strategic Planning and
Management System (SPMS) to assess the Regions1 performance based
upon effectiveness of enforcement rather than strictly in terns
of numbers of enforcement actions.1*
Response to Recommendation 15;
OWEP will examine the office of Water Accountability System
(OWAS) measures to determine if improvement is needed to address
specific concerns about effectiveness of e forcement. OWEP is
currently in the process of revising these measures for FY 1991.
The recommendation is for establishment of a measure in SPMS to
qualitatively assess the Region's performa ~e based on
effectiveness of enforcement. SPMS does r. ~ nov contain
qualitative measures. Qualitative measures, relating primarily
to program accomplishments and effectiveness, were developed in
OWAS to lend support to these SPMS measures. As indicated in our
response to recommendation 12, it is these qualitative measures
which are utilized during the aid-year evaluation process.
Additionally, in the FY 1990 OWAS Guide, there are qualitative
OWAS measures which we believe already address some of the
concerns.
II. EPA'e Civil Penalty Policy not Followed in Assessment of
"We recommend that the Assistant Administrator for Water in
conjunction with the Assistant Administrator for Enforcement and
Compliance Monitoring reemphasize to EPA regional managers and
delegated States:
55
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1. the importance of adhering to EPA's Penalty Policy and
assuring that penalties assessed by the delegated States do so as
well;
2. the importance of penalties as a tool to help assure
compliance with the CWA; and,
3. the importance of maintaining adequate documentation to
support penalty calculations and any subsequent adjustments made
to arrive at assessed penalty amounts."
Response
In response to your recommendations, several actions are
proposed. OWEP will issue a statement to the Regions
reemphasizing (1) the importance of adhering to EPA's Penalty
Policy, (2} the importance of policies as a tool to help assure
compliance with the CWA, and (3) the importance of maintaining
adequate documentation to suggest penalty calculations and
subsequent adjustments to assessed penalty amounts.
Additionally, OWEP and OECM are updating the Civil Penalty Policy
to better define gravity components. While we do not now requirt
approved states to utilize the clean Water Act Penalty Policy,
OWEP proposes to develop a plan under which Regions assess State
penalty procedures, to include both judicial and administrative
civil penalties.
III. Deadlines Established bv Congress in t .e Clean Water Act To
Protect Water Quality Have Not Been Me- Recommendation *!•
"Carry forward the National Municipal .olicy (NMP) strategy
for those facilities which have not met the Clean Hater Act
deadline of July 1, 1988, in order to give these facilities the
additional high-level management attention which they merit. New
priorities, goals, and deadlines should be established as
warranted in order to bring these facilities into compliance with
the Act as soon as possible."
Response to Recommendation il*
Headquarters currently maintains oversight responsibility
for the IMP universe and associated enforcement activities to
ensure compliance by NMP facilities. Oversight activities
include (1) tracking start, end, and attain operational level
milestones for construction schedules, (2) tracking referral,
file, and settlement dates for judicial actions, (3) ensuring
that federal enforcement actions are appropriate and follow the
penalty policy. Data for NMP majors, including construction
milestone dates and dates relating to judicial or administrative
enforcement actions, are maintained in a dBase III file on the
PC. NMP status is reported quarterly. Several summaries are
generated and graphics produced for management purposes which
56
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-j -— .«^i4-»«••«*w v-*wa«iy to ensure
being taken where needed and in a timely manner.
Recommendation 121
"Monitor at EPA Headquarters the Regions' and i
progress through evaluation of the effectiveness of
enforcement actions against these facilities and oversight of
States' enforcement programs during the course of mid-year
reviews and in SPMS."
Response to Recommendation 12:
OWAS already contains these types of measures. When SPMS is
revised, OWEP will consider adding or modifying measures to track
these items. Additionally, OWEP will give this issue top
priority in its FY 1990 mid-year evaluations.
57
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Appendix II
REPORT DISTRIBUTION
Headquarters
Assistant Administrator for Water (WH-556)
Assistant Administrator for Enforcement
and Compliance Monitoring (LE-133)
Associate Administrator for Regional Operations and
State/Local Relations (A-101)
Associate Administrator for Congressional and
Legislative Affairs (A-101)
Associate Administrator for Communications and
Public Affairs (A-101)
Office of the Comptroller (PM-225)
Agency Followup Official (PM-225)
Attn: Director, Resource Management Division
Agency Followup Official (PM-208)
Attn: Director, Program Operations Support Staff
Office of the Inspector General (A-109)
Region 1
Regional Administrator
Regional Audit Followup Coordinator
Divisional Inspector General for Audits, BAD
Region 2
Regional Administrator
Regional Audit Followup Coordinator
Region 4
Regional Administrator
Regional Audit Followup Coordinator
Divisional Inspector General for Audits, SAD
Region 5
Regional Administrator
Regional Audit Followup Coordinator
Divisional Inspector General for Audits, NAD
58
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