Clean Water Act 800R90104
Compliance Enforcement Policy
Compendiumm NPDES Program
II. NPDES PROGRAM; PRE-ENFORCEMENT
A. SOURCES OF EFFLUENT LIMITATIONS AND OTHER REQUIREMENTS
1. "NPDES Permit Authorization to Discharge", dated April 28,
1976.
2. npoTW Compliance with NPDES Permit Effluent Limitations",
dated January 5, 1977.
3. "Confidentiality of NPDES Permit Applications" dated April 6,
1978 with attached memorandum dated March 22, 1978.
4. "Certification and Permitting of Dischargers Located on
Waters Forming Boundaries Between States", dated April 19, 1978.
5. "Request for a Legal Opinion-Inclusion of Compliance
Schedules in Second Round Permits and Newly Issued Permits",
dated January 19, 1979.
6. "Policy"for the Second Round Issuance of NPDES Industrial
Permits", dated June 2, 1982.
7. "Policy for the Development of Water Quality-Based Permit
Limitations for Toxic Pollutants", dated February 3, 1984. (See
also 49 FR 9016, March 9, 1984.)
8. "Continuance of NPDES General Permits under the APA", dated
January 16, 1984.
9. Summaries of NPDES Permit Decisions by the Administrator anc
Judicial Officer (Issued irregularly. For copies of summaries,
contact the Permits Division, OWEC, EN-336).
10. "Training Manual for NPDES Permit Writers" dated May, 1987.
Table of Contents only. Available from Permits Division, OWEC,
(EN-336).
B. INSPECTIONS
1. "Visitor's Releases and Hold Harmless Agreements as a
Condition to Entry to EPA Employees on Industrial
Facilities",dated November 8, 1972. See GM-1.
2. "Conduct of Inspections after the Barlow Decision dated
April 11, 1979. See GM-5.
3. "NPDES Compliance Sampling Inspection Manual", dated October
1979. Table of Contents only. „_- - -
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4. "Interim. NPDES Biomonitoring Inspection Manual", dated
October 1979. Table of Contents only.
5. "NPDES Compliance Monitoring Inspector Training, with Modules
on Overview, Legal Issues, Sampling Procedures, Biomonitoring,
Laboratory Analyses Modules", dated 1988. Table of Contents of
individual modules only.
6. "NPDES Compliance Evaluation Inspection Manual", dated
January 1981. Table of Contents only.
7. "Neutral Inspection Plan for the NPDES Program", dated
February 17, 1981.
8. "NPDES INSPECTION STRATEGY AND GUIDANCE FOR PREPARING
ANNUAL STATE/EPA COMPLIANCE INSPECTION PLANS", dated April
1985 with transmittal dated April 16, 1985.
9. "NPDES COMPLIANCE INSPECTION MANUAL", dated January, 1988.
Table of Contents only. Replaces June, 1984 edition.
10. "Use of the New NPDES Compliance Inspection Form", dated Ma
14, 1985.
11. Pretreatment Compliance and Audit Manual for Approval
Authorities. See VLB.24.
12. "NPDES Compliance Flow Measurement Manual", dated September,
1981. Table of Contents only.
13. "Guidelines on Reguirements for Exceptions for NPDES
Inspector Training", dated January 28, 1990. without
attachments.
C. MEASURING COMPLIANCE/DATA PROCESSING
1. "PERMIT COMPLIANCE SYSTEM DATA ENTRY, EDIT AND UPDATE MANUAL;
INQUIRY USER'S GUIDE; PCS GENERALIZED RETRIEVAL MANUAL;
EDIT/UPDATE ERROR MESSAGES," updated July, 1990. Table of
Contents only.
2. The "GREAT System" (General Record of Enforcement Actions
Tracked), circa 1980. The GREAT System tracks EPA-issued
Administrative Orders (AOs) and Notices of Violation issued from
the commencement of the system until September 30, 1987. Requests
for retrievals should be addressed to Mary Gair, OWEP, FTS
475-8557. See also II.C.10.
3. "PCS Data Element Dictionary", updated July 2, 1990 and "PCS
Codes and Descriptions Manual", updated June 9, 1989. Table of
Contents only.
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4. "NPDES Self-Monitoring System User Guide", dated January
1985. Table of Contents only.
5. "Release and Description of Significant Violator Lists",
dated March 8, 1984.
6. "PERMIT COMPLIANCE SYSTEM (PCS) POLICY STATEMENT", dated
October 31, 1985. (appendices updated March 23, 1988)
7. "GUIDANCE FOR PREPARATION OF QUARTERLY AND SEMI-ANNUAL
NONCOMPLIANCE REPORTS", March 13, 1986, with transmittal letter.
Table of Contents.
8. "Managers' Guide to the Permit Compliance System" June,
1986. Table of Contents only.
9. "Guide to PCS Documentation" June, 1986. Table of contents
only. (Information only; no longer current).
10. "General Record of Enforcement Actions Tracked (GREAT)
Conversion to Permit Compliance System (PCS)11, dated July 24,
1987. Supplements II.C.2. (Conversion completed prior to January
l, 1988).
11. "GUIDANCE FOR REPORTING AND EVALUATING POTW NONCOMPLIANCE
WITH PRETREATMENT IMPLEMENTATION REQUIREMENTS", dated September,
1987.
12. "PCS PC PERSONAL ASSISTANCE LINK USERS GUIDE", updated
December 21, 1988. Table of Contents only.
III. ADMINISTRATIVE ENFORCEMENT
A. ADMINISTRATIVE COMPLIANCE ORDERS
1. "Effect of Compliance with Administrative Orders", dated June
29, 1984.
2. "Use of Stipulated Penalties in Administrative Orders on
Consent under the CWA", dated September 6, 1985.
3. "Remittance of Fines and Civil Penalties" dated April 15,
1985. See GM-38.
4. "Recommended Format for CWA Section 309 Administrative
Orders", dated July 30, 1985 (Incorporated in III.A.5).
5. "REFERENCE DOCUMENT ON GUIDANCE AND PROCEDURES FOR
ADMINISTRATIVE ORDERS ISSUED UNDER SECTION 309 OF THE CLEAN
WATER ACT" dated September 26, 1986, Cover Memorandum, Table of
Contents and Section I only.
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6. "Relationship of Section 309(a) Compliance Orders to
Section 309(g) Administrative Penalty Procedures11, distributed
August 28, 1987. This document is reproduced at III.B.3, of
this compendium.
B. ADMINISTRATIVE PENALTY ORDERS
1. "Guidance on Class I Clean Water Act Administrative Penalty
Procedures", dated July 27, 1987 and noted at 52 FR 30730 (August
17, 1987).
2. " Final Rules of Practice Governing the Administrative
Assessment of Class II Civil Penalties under the Clean Water
Act," issued June 12, 1990, effective July 12, 1990. Published
at 55 F.R. 23838 (June 12). Replaces the Interim Final Rules
dated August 10, 1987.
3. "Relationship of Section 309(a) Compliance Orders to Section
309(g) Administrative Penalty Proceedings", distributed August
28, 1987. Includes transmittal memorandum covering items III.B.3
through 11, this Compendium.
4. "Guidance on Choosing Among Clean Water Act Administrative,
Civil and Criminal Enforcement Remedies", distributed August 28,
1987.
5. "Guidance on State Action Preemption Civil Penalty Actions
under the Federal Clean Water Act", distributed August 28, 1987.
6. "Guidance on "Claim-Splitting" in Enforcement Actions under
the Clean Water Act", distributed August 28, 1987.
7. "Guidance on Retroactive Application of New Penalty
Authorities under the Clean Water Act", distributed August 28,
1987.
8. "Guidance on Effect of Clean Water Amendment Civil Penalty
Assessment Language", distributed August 28, 1987.
9. "Addendum to the Clean Water Act Civil Penalty Policy for
Administrative Penalties", distributed August 28, 1987.
10. "Guidance on Notice to Public and Commenters in Clean Water
Act Class II Administrative Penalty Proceedings", distributed
August 28, 1987.
11. "Guidance Regarding Regional and Headquarters Coordination
on Proposed and Final Administrative Penalty Orders on Consent
under New Enforcement Authorities of the Water Quality Act of
1987", distributed August 28, 1987.
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12. "Use of Administrative Penalty Orders (APO'S) in FY 89",
dated March 13, 1990. This document is reproduced at VII.IS.
below.
IV. CIVIL LITIGATION
A. GENERAL
1."Professional Obligations of Government Attorneys", dated April
19, 1976. See GM-2.
2."General Operating Procedures for EPA's Civil Enforcement
Program", dated July 6, 1982. See GM-12.
3."Clearance of Significant Enforcement Pleadings", dated January
25, 1983.
4."Regional Counsel Reporting Relationship", dated August 3,
1983. See GM-16.
5."Implementing Nationally Managed or Coordinated Enforcement
Actions", dated December 26, 1984. See GM-35.
6."Guidance on Choosing Among Clean Water Act Administrative,
Civil and Criminal Enforcement Remedies", distributed August 28,
1987. This document is reproduced at III.B.4., this compendium.
7."Guidance on State Action Preemption Civil Penalty Actions
under the Federal Clean Hater Act", distributed August 28, 1987.
This document is reproduced at III.B.5., this compendium.
8."Guidance on "Claim-Splitting" in Enforcement Actions under the
Clean Hater Act", distributed August 28, 1987. This document is
reproduced at III.B.6., this compendium.
9."Guidance on Retroactive Application of New Penalty Authorities
under the Clean Water Act", distributed'August 28, 1987. This
document is reproduced at III.B.7., this compendium.
10."Guidance on Effect of Clean Water Amendment Civil Penalty
Assessment Language", distributed August 28, 1987. This document
is reproduced at III.B.8., this compendium.
11."Issuance of Guidance Interpreting 'Single Operational
upset'", dated September 27, 1989.
B. ENFORCEMENT CASE MANAGEMENT PROCEDURES
1."MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENT OF JUSTICE
AND THE ENVIRONMENTAL PROTECTION AGENCY", dated June 15, 1977.
See GM-3. (Amended by IV.B.29)
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2."Memorandum of understanding Between the U.S. Coast Guard and -
the Environmental Protection Agency" dated August 14, 1979.
outdated (See this index, Section VI.C.5.).
3."Allocation of Litigation Responsibilities Between Regional and
Headquarters Components of Office of General Counsel", dated
December 14, 1979.
4."Contacts with Defendants and Potential Defendants in
Enforcement Litigation", dated October 7, 1981. See GM-6.
5."Quantico Guidelines for Enforcement Litigation", dated April
8, 1982. See GM-8.
6."Section Directives Concerning 60 Day Report and Processing New
Referrals", dated June 22, 1982.
7."Request to Department of Justice to Withhold Action in
Referred cases", dated September 3, 1982.
8."Case Referrals for Civil Litigation", dated September 7, 1982.
See GM-13.
9."Procedure for Withholding filing of Referred Cases", dated
September 8, 1982.
10."Clearance of Briefs and Significant Pleadings", dated Octob
27, 1982.
11."Civil Litigation Referral Packages", dated December 2, 1982.
12."Headquarters Review of Pleadings", dated December 2, 1982.
13."Responsibility for Handling Judicial Appeals Arising Under
EPA's Civil Enforcement Program", dated December 14, 1982.
14."Deferral in Filing Cases at the Request of EPA Attorneys",
dated January 31, 1983.
15. "Case Management Procedures for civil Water Referrals", dated
March 28, 1983.
16. "Program Concurrence on Civil Referrals", dated July 20,
1983.
17. "Program Review of Civil Water Cases", dated July 20, 1983.
18. "DIRECT REFERRAL MEMORANDUM", dated September 29,
1983.(Amended by IV.B.29)
19. "Implementation of Direct Referrals for Civil Cases", dated -
November 28, 1983. See GM-18.
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20. "Guidance on Evidence Audit of Case Files", dated December
30, 1983. See GM-20.
21. "Headquarters Review and Tracking of Civil Referrals", dated
March 8, 1984.
22. "Delegation of Authorities to the Deputy Administrator",
dated March 19, 1984.
23. "Races to the Courthouse", dated March 20, 1984.
24. "Guidance for Enforcing Federal District Court Orders", dated
May 8, 1984. This document is reproduced at Section IV D.I.,
this compendium.
25. "Guidance on Counting and Crediting Civil Judicial
Referrals", dated June 15, 1984. See GM-29.
26. "Revised Regional Referral Package Cover Letter and Data
Sheet" dated May 30, 1985. See GM-40.
27. "FORM OF SETTLEMENT OF CIVIL JUDICIAL CASES", dated July 24,
1985. See GM-42.
28. "Direct Referrals Clean Water Act - 'No Permit' Cases", dated
September 11, 1985.
29. "Direct Referrals", dated August 28, 1986.
30. "Expanded Civil Judicial Referral Procedures", dated August
28, 1986. See also GM-50.
31. "EPA Policy on the Inclusion of Environmental Auditing
Provisions in Enforcement Settlements", dated November 14, 1986;
See GM-53. Supplements GM-17.
32. "Interim Guidance on Joining States as Plaintiffs," dated
December 24, 1986, as corrected February 4, 1987.
33. "Expansion of Direct Referral Cases to the Department of
Justice", dated January 14, 1988. See GM-69.
34. "Delegation of Concurrence and signature Authority", dated
January 14, 1988. See GM-70.
35. "Enforcement Docket Maintenance", dated April 8, 1988.
36. "Process for Conducting Pre-Referral Settlement Negotiations
on Civil Judicial Enforcement Cases", dated April 13,1988. See
GM-73.
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37. "Criteria for Active OECM Attorney Involvement in Cases", t
dated May 22, 1988.
38. "Withdrawal of Referrals and Issuance of 'Hold' Letters",
dated February 24, 1989.
39. "Agency Judicial Consent Decree Tracking and Follow-up
Directive", dated January 11, 1990. Attached to IV.D.4. this
compendium.
PENALTIES AND TEBMS OF SETTLEMENT
1. "Civil Penalty Policy", dated July 8, 1980 (for reference
only).
2. "GUIDANCE FOR DRAFTING JUDICIAL CONSENT DECREES", dated
October 19, 1983. See GM-17.
3. "New Civil Penalty Policy", dated February 16, 1984. See
GM-21.
4. "A Framework for Statute Specific Approaches to Penalty
Assessment", dated February 16, 1984. See GM-22.
5. "GUIDANCE FOR CALCULATING ECONOMIC BENEFIT OF NON-COMPLIANCE
FOR A CIVIL PENALTY ASSESSMENT", dated November 5, 1984. See
GM-33.
6. "Penalty Calculations Compliance Schedule for Pretreatment
Enforcement Initiative", dated February 19, 1985. (See Also
IV.C.10)
7. "Enforcement Settlement Negotiations", dated May 22, 1985. See
GM-39.
8. "Headquarters Approval of Proposed Civil Penalties", dated May
31, 1985.
9. "Division of Penalties with State and Local Governments",
dated October 30, 1985.
10. "CLEAN WATER ACT CIVIL PENALTY POLICY", dated February 11,
1986. Also see Addendum at III.B.9.
11. "Letter of the Administrator to James Borberg, President of
the Association of Metropolitan Sewerage Agencies", (concerning
penalties against municipalities), dated October 21, 1986.
12. "Guidance on Calculating after Tax Net Present Value of
Alternative Payments", dated October 28, 1986. See also GM-51.
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13. "Guidance on determining Violator's Ability to Pay a Civil
Penalty", dated December 16, 1986. See GM-56.
14. "Addendum to the Clean Water Act Civil Penalty Policy for
Administrative Penalties", distributed August, 1987. (This
document is reproduced at III.B.9., this compendium).
15. "November 4, 1987 Congressional Testimony on Proposed
Amendments to the Clean Water Act", dated November 24, 1987.
Includes DOJ and EPA Testimony on "Environmental Improvement
Projects".
16. "GUIDANCE ON PENALTY CALCULATIONS FOR POTW FAILURE TO
IMPLEMENT APPROVED LOCAL PRETREATMENT PROGRAMS", dated December
22, 1988. Displayed at VLB.30.
17. "Guidance on the Distinction Among Pleading, Negotiating and
litigating Civil Penalties for Enforcement Cases under the Clean
Water Act", dated January 19,1989.
18. "Use of Stipulated Penalties in EPA Settlement Agreements",
dated January 11, 1990.
19. "Multi-Media Settlements of Enforcement Claims", dated
February 6, 1990.
20."Documenting Penalty Calculations and Justifications in EPA
Enforcement Actions", dated August 9, 1990.
D. ENFORCING JUDGEMENTS AND DECREES
1. "Guidelines for Enforcing Federal District Court Orders",
dated April 18, 1984. See GM-27.
2. "Procedures for Assessing Stipulated Penalties", dated January
11, 1988. See GM-67.
3. "Guidance on Certification of Compliance with Enforcement
Agreements", dated July 25, 1988, see GM-74.
4. "Manual on Monitoring and Enforcing Administrative and
Judicial Orders", dated February 6, 1990. Transmittal
Memorandum, Summary Introduction, and Table of Contents only.
5. "Agency Judicial Consent Decree Tracking and Follow-up
Directive", dated January 11, 1990.
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V. CRIMINAL LITIGATION/ENFORCEMENT3
1. "Agency Guidelines for Participation in Grand Jury Investigations",
dated April 30, 1982. See GM-9.
2. "Criminal Enforcement Priorities for the EPA", dated October 12,
1982. See GM-14.
3. "Analysis of Existing Law Enforcement Emergency authorities11,
dated March 6, 1984.
4. "Guidelines on Sampling, Preservation, and Disposal of Technical
Evidence in Criminal Enforcement Matters", dated April 18, 1984.
5. "Guidance Concerning Compliance with the Jencks Act", dated
November 21, 1983. See GM-23. Superseded and replaced by V.8. below.
6. "Policy and Procedure on Parallel Proceedings at the EPA", dated
January 23, 1984. See GM-30. Superseded.
7. "The Use of Administrative Discovery Devices in the Development of
Cases Assigned to the Office of Criminal Investigations", dated
February 16, 1984. See GM-36. Superseded.
8. "Guidance concerning Compliance with the Jencks Act" dated March
8, 1984.
9. "Functions and General Operating Procedures for the Criminal
Enforcement Program", dated January 7, 1985. See GM-15.
10. "The Role of EPA Supervisors during Parallel Proceedings", dated
• March 12, 1985. See GM-37. Superseded.
11. "Environmental Criminal Conduct Coming to the Attention of Agency
Officials and Employees", dated September 21, 1987.
12. "Procedures for Requesting and Obtaining Approval of Parallel
Proceedings", dated June 15, 1989. Excludes attachment entitled
"Guidelines on Investigative Procedures for Parallel Proceedings".
13. "Revised EPA Guidance for Parallel Proceedings11, dated June 21,
1989. This document together with V.12. above, supersedes and
replaces the documents at V.6.,V.7., and V.10. This document is
supplemented by the document at V.14.
3 Memoranda in this Section are particularly germane to
water enforcement and do not comprise a comprehensive listing of
all criminal enforcement policies.
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^ 14. "Supplement to Parallel Proceedings Guidance and Procedures for
""" Requesting and Obtaining Approval of Parallel Proceedings", dated July
18, 1990.
VI. SPECIALIZED ENFORCEMENT TOPICS
A. NATIONAL MUNICIPAL POLICY
1. "Municipal Enforcement Case Requirements", dated December 14,
1982.
2. "CWA Municipal Enforcement Cases", dated January 3, 1983.
3. NATIONAL MUNICIPAL POLICY, 49 PR 3832 (January 30, 1984).
4. "Municipal Enforcement: The Financial Ability Question", dated
February 17, 1984.
5. "Financial Capability Guidebook", dated March 1984. (Table of
Contents only)
6. "Eligibility for Variances under Section 30l(i)(l) of the
CWA", dated April 11, 1984.
7. "REGIONAL AND STATE GUIDANCE ON THE NATIONAL MUNICIPAL
POLICY", dated March, 1984.
8. "Available Techniques for Obtaining Compliance with National
Municipal Policy by Unfunded POTWs Requiring Construction", dated
September 13, 1984.
9. "Finance Manual for Wastewater Treatment Systems", dated April
1985. (Table of Contents only)
10. "NATIONAL MUNICIPAL POLICY IMPLEMENTATION", dated April 1,
1985.
11. "NATIONAL MUNICIPAL POLICY IMPLEMENTATION", dated April 12,
1985.
12. Letter to House of Representatives from EPA regarding the
NMP with Congressional Record materials attached, dated July 22,
1985.
13. "IMPLEMENTATION OF THE NMP", dated July 24, 1985.
r
14. "Relationship Between the National Municipal Policy and
Construction Grants Extending Beyond FY 1988", dated July 26,
1985. (See also number 12 above for a copy of the letter
referenced in this document)
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13
15. Speech by Assistant Administrator, OECM to Association of
Metropolitan Sewerage Agencies, dated August 8, 1985.
16. "HIGHLIGHTS FROM DECIDED AND SETTLED CASES UNDER THE NMP",
dated August 27, 1985.
17. "DEADLINES AND THE NATIONAL MUNICIPAL POLICY", dated January
30, 1986.
18. "Letter of the Administrator to James Borberg, President of
the Association of Metropolitan Sewerage Agencies", (concerning
penalties against municipalities), dated October 21, 1986, (See
No. IV.C.ll this Compendium).
19. "National Municipal Policy Litigation," dated December 23,
1986.
20. "Interim Guidance on Joining States as Plaintiffs," dated
December 24, 1986, as corrected February 4, 1987. Reproduced at
IV.B.32., this compendium.
21. "National Municipal Policy Enforcement", dated September 22,
1987, with attachment.
22. PRESS BRIEFING MUNICIPAL COMPLIANCE WITH THE CLEAN WATER
ACT", dated July 27, 1988. Selected portions.
B. PRETREATMENT
1. "Coordination Between Regional Enforcement and Water Programs
Personnel in Implementing the National Pretreatment Program",
dated November 29, 1978.
2. "Incorporation of Pretreatment Program Development Compliance
Schedules into POTW NPDES Permits", dated January 28, 1980.
3. "Statutory Deadlines for Compliance by Publicly Owned
Treatment Works under the CWA", dated March 4, 1983.
4. "Example Language for Modifying NPDES Permits for Pretreatment
Program Approval", dated September 22, 1983.
5. "Procedure Manual for Reviewing a POTW Pretreatment Program
Submission", dated October 1983. Table of Contents only.
6. "GUIDANCE MANUAL FOR POTW PRETREATMENT PROGRAM DEVELOPMENT",
dated October 1983. Table of contents only.
7. "Guidance Manual for Electroplating and Metal Finishing
Pretreatment Standards", dated February 1984. Table of Contents
only. -
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8. "Implementation of Pretreatment Standards While Litigation
Continues", dated May 2, 1984.
9. "Guidance Manual for Pulp, Paper, and Paperboard and Builder's
Paper and Board Mills Pretreatment Standards", dated July 1984.
Table of Contents only.
10. "Guidance to POTWs for Enforcement of Categorical Standards",
dated November 5, 1984.
11. "POTW PRETREATMENT MULTI-CASE ENFORCEMENT INITIATIVE", dated
December 31, 1984. Attachments A and B excluded.
12. "EXAMPLE PERMIT LANGUAGE REQUIRING POTWS TO IMPLEMENT
PRETREATMENT PROGRAMS", dated February 22, 1985.
13. "Guidance on Enforcement of Prohibitions Against Interference
and Pass Through", dated May 3, 1985.
14. "Obtaining Approval of Remaining Local Pretreatment
Programs—Second Round Referrals of the Municipal Pretreatment
Enforcement Initiative", dated June 12, 1985. (Categorization of
POTWs within Regions excluded)
15. "Applicability of Categorical Pretreatment Standards to
Industrial Users of Non-Discharging POTWs", dated June 27, 1985.
16. "Guidance Manual for Preparation and Review of Removal Credit
Applications", dated July 1985. Table of Contents only.
17. "Local Limits Requirements for POTW Pretreatment Programs",
dated August 5, 1985.
18. "Guidance Manual for Iron and Steel Manufacturing
Pretreatment Standards", dated September 1985. Table of Contents
only.
19. "Guidance Manual for the Use of Production-Based Pretreatment
Standards and the Combined wastestream Formula", dated September
1985. Table of Contents only. -•
20. "Guidance Manual for Implementation of Total Toxic Organics
(TTO) Pretreatment Standards", dated September 1985. Table of
Contents only.
21. "GUIDANCE ON OBTAINING SUBMITTAL AND IMPLEMENTATION OF
APPROVABLE PRETREATMENT PROGRAMS", dated September 20, 1985.
22. "CHOOSING BETWEEN CLEAN WATER ACT § 309(b) and 309(f) AS A
CAUSE OF ACTION IN PRETREATMENT ENFORCEMENT CASES", dated
September 20, 1985.
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15
23. "RCRA Information on Hazardous Wastes for Publicly Owned x
Treatment Works", dated September 1985. Table of Contents only.
24. "Pretreatment Compliance Inspection and Audit Manual for
Approval Authorities", dated July, 1986. Table of Contents only.
25. "Pretreatment Compliance Monitoring and Enforcement Guidance"
(for Publicly Owned Treatment Works) dated July, 1986 (Printed
September, 1986). Table of Contents only.
26. "Interim Guidance on Appropriate Implementation Requirements
in Pretreatment Consent Decrees," dated December 5, 1986.
Attachments excluded.
27. "Guidance for Reporting and Evaluating POTW Noncompliance
with Pretreatment Implementation Requirements", dated September,
1987. (This document is reproduced at II.C.ll of this
compendium).
28. "Guidance Manual on the Development and Implementation of
Local Discharge Limitations Under the Pretreatment Program",
dated November 1987. Indices and Tables of Content, only.
29. "GUIDANCE ON BRINGING ENFORCEMENT ACTION AGAINST POTW'S FOR
FAILURE TO IMPLEMENT APPROVED PRETREATMENT PROGRAMS", dated
August 4, 1988.
30. "GUIDANCE ON PENALTY CALCULATIONS FOR POTW FAILURE TO
IMPLEMENT APPROVED PRETREATMENT PROGRAMS", dated December 22,
1988.
31. "ENFORCEMENT INITIATIVE FOR FAILURE TO ADEQUATELY IMPLEMENT
APPROVED LOCAL PRETREATMENT PROGRAMS", dated February 1, 1989.
32."Guidance For Developing Control Authority Enforcement
Response Plans", dated September, 1989. Table of Contents only.
33."FY 1990 Guidance for Reporting and Evaluating POTW
Noncompliance with Pretreatment Implementation Requirements",
dated September 27, 1989.
C. SECTION 3114
1. "Oil Spill Enforcement", dated January 8, 1974. Outdated.
4 Recent passage of the Oil Pollution Act of 1990 has
rendered all but one of the documents in this section outdated.
The outdated documents are so marked.
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16
2. "Civil Penalties Collected for Violations of 40 C.F.R. Part
112" - Transmittal to USCG Districts of Deposit in Revolving Fund
Account, dated December 24, 1974. Outdated.
3. "Spill Prevention Control and Countermeasure (SPCC) Plan
Program", dated April 23, 1975. Outdated.
4. "Penalty Assessment Procedures under Section 311(j)(2)n, dated
March 29, 1976. outdated.
5. "Memorandum of Understanding Between the U.S. Coast Guard and
the EPA", dated August 24, 1979. Outdated.
6. "Jurisdiction over Intermittent Streams under § 311 of the
CWA", dated March 4, 1981.
7. "EPA Authority to Seek court Imposed Civil Penalties Under
Section 311(b)(6) of the CWA", dated November 19, 1984.
Outdated.
D. CITIZEN SUITS
1. "EPA Response to Citizen Suits", dated July 30, 1984.
2. "Clean Water Act Citizen Suit Issues Tracking System", dated
October 4, 1985.
3. "Notes on Section 505 CWA Citizen Suits," dated February 3,
1986.
4. "Clean Water Act Section 505: Effect of Prior Citizen Suit
Adjudications or Settlement on the United States Ability to Sue
for same violations", dated June 19, 1987.
5. "Procedures for Agency Responses to Clean Water Act citizen
Suit Activity dated June 15, 1988.
E. SECTION 404
1. "EPA Enforcement Policy for Noncompliance with Section 404 of
the FWPCA", dated June 1, 1976.
2. Letter from Attorney General to Secretary of the Army
regarding Section 404 of the CWA dated September 5, 1979.
3. "Enforcement of Section 404 of the CWA", dated November 25,
1980.
4. "Enforcement Authority for violations of Section 404 of the
Clean Water Act", dated November 7, 1980.
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17
5. "Guidelines for Specification of Disposal Sites for Dredged
Fill Material", Federal Register Notice, Volume 45, No. 249,
dated December 24, 1980.
6. "CWA Section 404 Administrative Orders for Removal or
Restoration",dated May 20, 1985.
7. Memorandum of Agreement Between the Department of the Army
and the Environmental Protection Agency Concerning Regulation of
Solid Waste Under the Clean Water Act, dated January 23, 1986,
effective date April 23, 1986.
8. "MEMORANDUM OF AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY
AND THE ENVIRONMENTAL PROTECTION AGENCY CONCERNING FEDERAL
ENFORCEMENT OF THE SECTION 404 PROGRAM OF THE CLEAN WATER ACT",
dated January 19, 1989, with collateral agreements concerning
previously-issued Corps Permits Geographic Jurisdiction and
Section 404 (f) exemption issues.
9. "Clean Water Act Section 404 Jurisdiction Over Isolated
Waters in Light of Tabb Lakes v. United States." dated January
25,1990.
F. CONTRACTOR LISTING
1. "Guidance for Implementing EPA's Contractor Listing
Authority", dated July 18, 1984. See GM-31. (Superseded by F.4,
below)
2. "Implementation of Mandatory Contractor Listing", dated August
8, 1984. See GM-32.
3. "Policy on Implementing Contractor Listing Program", dated
August 27, 1985. (deleted - Draft Policy only)
4. "Guidance on Implementing the Discretionary Contractor Listing
Program", dated November 26, 1986. See GM-53.
G. FEDERAL FACILITIES
1. "Federal Facilities Compliance", dated January, 1984.
Superseded by VI.G.2.
2. "FEDERAL FACILITIES COMPLIANCE STRATEGY", dated November,
1988. See GM-25(revised).
H. OVERSIGHT AKP STATE PROGRAM COORDINATION
1. "Implementing State/Federal Partnership in Enforcement:
State/Federal Enforcement Agreements", dated June 26, 1984. —
Superseded by H.3, below.
-------
18
2. Policy on Performance-Based Assistance, dated May 31, 1985.
3. "Revised Policy Framework for State/EPA Enforcement
Agreements", dated August 25, 1986 (Supersedes H.I). See also
GM-41, revised.
I. PROVIDING ENFORCEMENT INFORMATION TO OUTSIDE PARTIES
1. "Policy Against No Action Assurances", dated November 16,
1984. See G.M.-34.
2. "Enforcement Document Release Guideline", dated September 16,
1985. See G.M.-43.
3. "Policy on Publicizing Enforcement Activities", dated November
21, 1985. Modified by 1.5, below.
4. "Memorandum to General Counsels" (Concerning FOI requests
pertaining to subjects involved in ongoing or anticipated
litigation), dated March 27, 1986.
5. "Addendum to GM-46: Policy on Publicizing Enforcement
Activities", dated August 4, 1987. (Contains discussion on
explaining differences between initial penalty demands and final
penalty)
J. TOXICS/TOXICITY CONTROL
1. "Policy for Development of Water Quality-Based Permit
Limitations for Toxic Pollutants", dated February, 1984. See
II.A.7.
2. "WHOLE EFFLUENT TOXICITY BASIC PERMITTING PRINCIPLES AND
ENFORCEMENT STRATEGY", Dated January 25, 1989. Includes
Compliance monitoring and Enforcement Strategy, dated January 19,
1989.
3."Quality Assurance Guidance for Compliance Monitoring in
Effluent Biological Toxicity Testing", dated March 7, 1990.
VII. ANNUAL DOCUMENTS AND SHORT-TERM INITIATIVES
1. "EPA AGENCY OPERATING GUIDANCE - FY 1986-1987", dated February
1985. EXPIRED.
2. "FY86 GUIDANCE FOR OVERSIGHT OF NPDES PROGRAMS", dated June
28,1985. EXPIRED.
3. "NATIONAL MUNICIPAL POLICY ENFORCEMENT INITIATIVE", dated August 9,
1985. Attachments excluded.
-------
19
4. "A GUIDE TO THE OFFICE OF WATER ACCOUNTABILITY SYSTEM AND MID-YE
EVALUATIONS", dated September, 1985. EXPIRED.
5. MEPA AGENCY OPERATING GUIDANCE - FY 1987, dated March 1986".
EXPIRED.
6. "A GUIDE TO THE OFFICE OF WATER ACCOUNTABILITY SYSTEM AND MID-YEAR
EVALUATIONS-FISCAL YEAR 1987", dated March 1986. EXPIRED.
7. "FY87 GUIDANCE FOR OVERSIGHT OF NPDES PROGRAMS", dated April 18,
1986. EXPIRED.
8. "EPA Agency Operating Guidance- FY 1988" dated March, 1987.
Selected portions only. EXPIRED.
9. "GUIDANCE FOR OVERSIGHT OF NPDES PROGRAMS", dated May, 1987 (This
document is reproduced at I.7., This Compendium).
10. "Guidance for the FY 1988 State/EPA Enforcement Agreements
Process", dated April 31 (sic), 1987. EXPIRED.
11. "A GUIDE TO THE OFFICE OF WATER ACCOUNTABILITY SYSTEM AND MID-YEAR
EVALUATIONS, FISCAL YEAR 1988", dated May, 1987. Selected portions
only. EXPIRED.
12. "FY 1988 OFFICE OF WATER OPERATING GUIDANCE", dated June, 1987.
Selected portions only. EXPIRED. '
13. "FY 1989 OFFICE OF WATER OPERATING GUIDANCE", dated May, 1988.
Selected portions only.
14. "A GUIDE TO THE OFFICE OF WATER ACCOUNTABILITY SYSTEM AND MID-
YEAR EVALUATIONS, FISCAL YEAR 1989", dated March, 1988. Selected
portions only.
15. "Guidance for the FY 1989 State\EPA Enforcement Agreement
Process", dated June 20, 1988. See GM-57.
16. "FY 1990 OFFICE OF WATER OPERATING GUIDANCE", dated March, 1989.
Selected portions only.
17. "A GUIDE TO THE OFFICE OF WATER ACCOUNTABILITY SYSTEM AND MID-
YEAR EVALUATIONS,FISCAL YEAR 1990", dated March, 1989. Selected
portions only.
18. » Use of Administrative Penalty Order (APO's) in FY 89", dated
March 13, 1990. Without Attachments.
19. "CWA Civil Judicial and Administrative Penalty Practices Report
for FY89".
-------
20
20. "FY 1990 Guidance for Reporting and Evaluating POTW Noncompliance
with Pretreatment Implementation Requirements", dated September 27,
1989.
-------
-------
-------
-------
i. INTRODUCTION
This Clean Water Act Compliance/Enforcement Compendium is a
compilation of operative policies, guidance and staff manuals/
instructions which relate specifically to compliance and
enforcement activities under the Clean Water Act (CWA). This
Compendium is designed for use by Agency personnel and replaces
"Water Compliance/Enforcement Guidance Manual - Compendium of
Operative Policies (jointly issued by the Office of Water and the
Office of Enforcement and Compliance Monitoring on April 23,
1984). The Compendium reflects a thorough search of relevant
materials issued through December, 1985, but also lists key
documents issued as recently as March, 1986.
The Compendium is divided into seven principal categories
with several of the categories further divided. Section I incor-
porates the Table of Contents for several general reference
documents — including the "General Enforcement Policy Compendium"
which contains policies applicable to all enforcement programs
within the Agency and the "Permits Division Policy Book". Section
I also includes the Enforcement Management System Guide, which is
relevant to all aspects of the National Pollutant Discharge
Elimination System (NPDES) compliance monitoring and enforcement
program. Key documents from these other compendia are listed
separately in Sections II through VI. Section II includes docu-
ments which address NPDES compliance monitoring and, as mentioned
above, includes some documents indexed in the "Permits Division
Policy Book" which describe the establishment of permit limita-
tions and requirements. Sections III and IV identify procedures
for formal Federal administrative enforcement (III) and civil
enforcement (IV) in cases of non-compliance. Section V lists a
number of Agency policies relating to criminal enforcement;
Section VI lists policies and materials on specific topics (e.g.,
National Municipal Policy, Pretreatment, etc.) under NPDES and
non-NPDES compliance and enforcement; and Section VII covers
policy documents which are issued annually or support short-term
initiatives (e.g., Agency Operating Guidance).
Within each subdivision — or where there is no subdivision,
within each section — materials are listed in chronological
order. Documents which are considered to be most significant
and most frequently used are CAPITALIZED.
The Table of Contents of this Compendium also serves as the
index of statement of policy and interpretation of CWA compliance
and enforcement activities of the Office of Enforcement and
Compliance Monitoring (OECM) and the Office of Water Enforcement
and Permits (OWEP) which may be made available for public use in
accordance with Section (a) (2) of the Freedom of Information Act,
5 U.S.C. §552. Certain staff manuals and instructions to staff are
included. In addition, as a means of providing a complete back-
ground, the Table of Contents cross references relevant documents,
-------
- 2 -
including explanatory materials prepared for the regulated public,
which aid the user to understand EPA's Clean Water Act compliance
and enforcement processes.
The Compendium will be revised annually. Although every
effort has been made to include all applicable documents, some
may have been missed. If additional appropriate documents are
brought to the Agency's attention/ they will be added to the
Policy Compendium when it is next revised. Of course, as new
policies, guidances, and memoranda are issued, these will be
added during the annual update.
-------
I.
OVERVIEW AND GENERAL REFERENCE DOCUMENTS
-------
-------
I.I,
"Permits Division Policy Book", dated June 23, 1982. Table of Contents by
date and by subject only. Copies of individual documents may be obtained
from Permits Division, OWEP. (EN-336).
-------
-------
WASHINGTON. O.C. 20460
2 3 JrSi or MCE o
1 WATER
MEMORANDOM
.SUBJECT: Permits Division Policy,Book Update
FROM: Martha G. Prothro, Director
Permits Division (2N-336)
TO: Regional Water Management Division Directors
Regional Permit Branen Chiefs
NPDSS State Directors
In 1981 we distributed a Peraits Division Policy Book
wr.ich provided a compilation of current policies and guidance
nia^erial for your reference. We have reviewed and updated the
contents of the Policy BOOK. Several outdated NPDES itsas should
oe deleted and nine more recent issuances should be included.
Also/ we are no longer including RC?Jl materials in this
"compilation.
Attachments 1 and 2 show additions and deletions by tneir
subject headings. We will maintain a historical file of the
deleted policy guidance materials. For your convenience I am
also providing copies of the nine additions and nev chronological
and subject indices.
We will -continue to provide periodic-updates'to'the Peraits
Division Policy Book. Your comments and suggestions .for improving
the usefulness of this book are welcome.
Attachments
-------
-------
Additions
Ac-:mstr2tive Guidance
A. Foras
* * *
Application Foras 1 and 2 c 12/10/80
*
*****
IV. Legal Interpretation and Information Metros
* * *
NPDES Permit Issuance for Iron and
Steel Industry 5/15/81
Use of "Draft Supolement to Develop-
ment Document for Effluent Limitations
Guidelines and New Source Performance
Standards for the Phosphorous Derived
Chemicals Segment of the Phospnate
Manufacturing Point Source Category*
(October 1977} in Writing NPDES Permits 1/18/82
SCT Permitting 11/2/81
NPDES Permit Issuance for Pulp and Paper
Facilities with BCT Limitations to
Other Facilities 5/15/81
Status of the Major NPDES Industrial
Permits List 12/10/81
n-80-18
n-81-3
n-82-1
n-81-4
n-81-5
n-81-5
V. Second Round Permits:
Policy for the Second Round Issuance
of NPDES Industrial Permits
VI. Technical Guidance:
Outer Continental Shelf Coordination
Committee
Application of the .NPDES General
Permit Program to Offshore Oil
and Gas Facilities
6/02/82
6/6/80
7/30/81
n-82-2
n-80-19
n-81-7
-------
-------
Deletions
Title
Secular, on Procedures
A. ECSLs:-
Procedures for Issuance of
ECSLs
Enforcement Actions Against
Funded Municipal Dischargers
Enforcement Actions where an
Industrial Discharger Fails to
Meet 7/1/77 Deadline
Questions re: ECSLs
Additional Questions re: 'ECSLs
Use of ECSLs Past 7/1/77
Enforcement Policy and Use of
ECSLs for POTWs
* * * •
E. Clean Water Act Extensions and
Moaiflcations:
Municipal Perait Extensions under
Section 301(i)
Date
Permit Prcgrr
Goes
6/03/75
6/Q3/76
6/03/76
12/10/76
4/01/77
5/11/77
6/22/77
n-76-2
n-76-3
n-76-4
n-76-13
n-77-3
n-77-9
n-77-11
4/13/78
n-78-3
III. Fede-al /State Relations nips
Resource Conservation and Recovery Act:
Establishment of RCRA "Program
Implementation Guidance System
(PIGs)"
Interim Authorization of Programs
Based on Emergency State
Regulations
Requirement that State-Permitted
Hazardous Waste Facilities have
"Interim Status"
Short-Term Financial Assistance for
State Expected to Receive
Authorization before 1/1/81
The Use of State Permitting Systems
During Phase I Interim Authorization
wnich are not Based on Explicit
Regulatory Standards
10/03/SO
10/03/80
•
•
10/03/80
10/03/80
10/17/80
PIG-80-1
PIG-80-2
PIG-8D-3
PIS- 51-1
-------
Title .
Federal Register Notice of Public
nearTng ans Comment Period on
State Applications for Interim
Authorisation
Effect of RCRA Regulations Changes
on Phase I Interim Authorization
Approval
Delisting of Wastes by Authorized
States
Used Oil Recycling Act of 1980
State Regulation of Federal Agencies
For purposes of Interim
Authorization
Final Determinations on State
Applications for Interim
Authorization: Action Memoran-
dum & Federal Register Notice
Program Implementation Guidance
on Issuance of Provisional
EPA Identification Numbers
Effect of £?A's Hemorandurn of
Understanding With the Dept.
of Transportation on Activities
in States with Cooperative
Arrangements
Transfer of Modification and Permit
Application Information to States
Involvement of States without.Phase
II Interim Authorization in RCRA
Permitting
Date
Permit Prccr
Code
10/30/30
10/30/80
10/31/80
11/14/80
U/I4/80
12/1/80
11/25/30
12/10/30
3/24/81
2/12/31
PIG-SI-:
PIG-81-3
P1G-81--
PIG-81-i
PIG-81-6
PIG-il-7
PIG-8T-S
PIG-81-1
PIG-81-1
Second Round Permits:
Reissuing NPDES Permits to Sources
Affected by the NRDC Consent Decree
Policies for Reissuing Industrial
NPOES Permits
Writing NPDES BAT Permits in the
Absence of Promulgated Effluent
Guidelines
Revised NPOES Second Round Permits
Policy
5/16/78
6/25/80
8/29/80
n-i0-3
n-7S-9*
n-80-7
n-80-10
X
RCP.A Permit Priorives Guidance
RCRA Emergency Permit Guidance
10/03/80
10/20/80
r-80-1
r-80-rE*
-------
Establishment of RCRA "Program
Icolewantation Guidance System
(Plus)11 10/03/80
Interim Authorization of Programs
- Sased on Emergency State
Regulations 10/03/80
Recuirement that State Permitted
Hazardous Waste Facilities have
"Interim Status" 10/03/80
Short-Term Financial Assistance for
States Expected to Receive
Authorization Before 1/1/81 10/03/80
The Use of State Permitting Systems
During Phase I Interim Authorization
Which are not Based on Explicit
Permit Guidance 10/17/80
RCRA Emergency Permit Guidance 10/20/80
Federal Register Notice of Public
Hearing ana Comment Period on
State Applications for Interim
Authorization 10/23/80
Effect of RCP.A Regulations Changes
on Phase I Interim Authorization
Aoproval 10/30/80
Deli sting" of Wastes by Authorized
States 10/31/80
r-80-1
PIG-SO-2
PIG-80-3
PIG-8Q-4
PIG-81-1
r-80-2*
PIG-SI-2
PIG-81-3
PIG-81-4
-------
?srrm:s 3ivision -Q..CJ aoi*.
* *.
This book contains policies and guidance under the NPOES
3*r-,:t 3rogranu The materials are arranged and numbered in
*
chronological sequence. NPDSS policies are prefixed by an "n".
Following the prefix, the first numaer is the year of issuance
and the second is the chronological sequence for that year.
In addition to the chronologcial*listing a subject index is
provided to assist in locating policies.
Documents which are too lengthy to be included are Indicated
by an asterisk. Copies of these documents may be obtained by
cant act ing:
4 •
Mr. Tlraothry Owyer
Permits Division (EN-336)
U.S. SPA
401 M Street, S.W.
Wasnington, D.C. 20450
(203} 425-A793
Please use th'e policy number when requesting a document..
-------
Title
Date
Program
Coda
1974
Policy on Storage 4 Releases^for Water Quality
Control in Reservoirs Planned by Federal
Agenc-.es 1/16/73
Perait Form 9/18/73
Intermittent Streams 9/28/73
Alternative in Permit Language 12/27/73
Additional Guidance for Petroleum Marketing
Terminals i Oil Production Facilities 7/18/74
Feedlot Perait Format 7/29/74
Application of Electroplating Guidelines 8/28/74
Disposal of Suoply Water Treatment Sludges 9/13/74
1975
Use of Closed Cycle Cooling Systems to Meet the
Retirements of Section 315(b) 2/26/75
1976
NPO-S Permit Autnorization to Discharce 4/28/76
(Deleted)
(Deleted)
(Deleted)
Coordination Setween NPDES Program and Water 7/07/76
Quality Management and
Attachment - Coordination 4/02/76
Municipal West water Treatment Ponds 8/12/7S
Ame^'can Petroleum Institute v. E°A -
information Memo8/24/76
Bincing Effect of 303(e) Basin Plans 8/24/76
Impact of Phase I Basin Plans 9/01/76
Phase II Iron and Steel Guidelines - Mahomng
River Valley 10/04/76
Asbestos Limits 10/15/76
Use of Low Flow Augmentation to Meet Water
Quality Standards ' 11/08/76
(Deleted)
Comments on Region VIU's Approach to Writing
Effluent Limits for Confined Animal Feeding
Operations ' 12/15/76
c
1977
Clarification of 03C Opinion No. 40 (State
Review Authority) • 2/04/77
Fecal Colifonn Bacteria Limits 2/14/77
(Deleted)
water Treatment Plant Limitations 4/13/77
n-73-1
n-73-2
n-73-3
n-73-4
n-74-1
n-74-2
-n-74-3
n-74-4
n-75-1
n-75-1
n-75-2
n-75-3
n-76-*
n-75-5
n-75-5
n-76-6
n-76-7
n-76-8
n-76-9
•n-76-10
n-76-11
n-76-12
n-76-13
n-76-14
n-77-1
n-77-2
n-77-3
n-77-4
-------
Title Date
for Policy Regarding Possible Use
of NPOES Permits to Promote Setter Sludge
Management 4/12/77
315(a) & (b) Technical Guidance Docjsrtnts 5/01/77
Use of In-Stream Mecnamcal Aerators to Meet
Water Quality Standards 5/02/77
NPQES Permits and Requirements of State- Law 5/04/77
(Deleted)
Implementation of Promulgated Section 307(a)
Toxic Standards 6/01/77
(Deleted)
NPOES Permits in Wetlands Areas 7/12/77
Implementation of Section 403 7/20/77
Policy Regarding Procedures for Fundamentally
Different Factors SPT Variances 8/13/77
Policy Regarding the Inclusion in Permits of
More Stringent Effluent Parameters 10/13/77
1973
State Regulation of Federal Facilities
Confidentiality of NPDES Penr.it Aoplicztions
(Deleted)
Certification and Permitting of Dischargers
in Soandary Waters
(Deleted)
Coal Mining Under the Surface Mining Centre!
and Reclamation Act cf 1977. 5/25/73
Opinions on Variances in Second Round and
Otner Issues 6/13/78
Ex pa-te Contacts in Adjudicatory Hearings 6/15/78
(Deleted)
Ex Parte Contacts in EPA Rulending 8/04/77
Suspenoea Solids Limits for POTW Ponds 9/01/73
Innovative Technology Extensions 9/06/73
Guidance to States re Pretreatment Program 9/08/73
Variance Applications 3/12/78
Applicaoility cf 301(h) & (i) to Federal
Facilities 9/12/78
Transfer of Authority over Federal -jcilities
to NPOES States 11/28/78
Coordination be:ween Regional Enforcement and
Water Programs -e Pretreatment Program 11/29/7S
Request for Legal Ooinion - Inclusion of
Compliance Schedules in Second Round and
Hew Permits 12/25/78
1979
Use of SioKionitonng in the NPOES
Permits Program 1/11/79
State ?retreat.7.ent "rograms 4/12/79
Perait
Program
Cccs
n-77-5
n-77-c«
n-77-7
n-77-8
n-77-9
n-77-10
n-77-11
n-77-12
n-77-13
n-77-14
n-77-15
3/10/78
4/05/78
4/19/73
n-78-1
n-78-2
n-78-3
n-78-i
n-7S-5
n-73-6
n-7S-7
n-73-8
n-75-9*
n-78-lC
n-78-11
n- 73-12
n- 73-13'
n-78-14
n-78-15
n- 73-17
n-73-13
n-79-1
n-79-2
-------
Title
Date
Cods
. EPA Procedures for Review & Approval cf State
Pretreatment Program Submissions 4/30/79
.- Separate Stonn Sewers 9/11/79
. national Municipal Policy 4 Strategy 10/79
. Guicance on Setting BCT Perait Limits for
Breweries under Section 402(a)(l) of CWA 10/18/79
IS BO
. Regional Review of State-Issued NPDES Permits 1/18/80
. Applicability of Revised NPDES Regulations
to Permits Currently Being Processed 1/18/80
. Incorporation of Pretreatment Program
Development Compliance Schedules into
POTrf NPDES Permits 1/28/80
. OGC Memo-Use of BOOS Carbonaceous Test Results 4/18/80
. Pretreatment Compliance Schedule
. Statement 3y Agency Personnel Purporting To
Sanction Source Actions Which Are Inconsistent
With Statutory Requirements 5/28/80
. (Deleted)
. Major Municipal Permitting in FY 81 7/10/80
. Suspension cf Portion of Definition 7/15/80
of "Waters of the US" in Consolidated
Permit Regulations
. (Deleted)
. NPDES Permit Issuance for Iron & Steel 9/15/80
Faci lilies
. Suspension of Provisions in Consolidated 9/25/80
Pernrt Regulations Establishing Criteria
for NPDES New Source Detenrnnations and
Proposea P.evision of the Regulations
. Treatainlity Manual 9/25/80
. BCT Cost Test Guidance 9/30/80
. NPDES Evidentiary hearing Management °rocram 10/3/80
. Review of State N'PDES Permits Written Prior 12/24/80
to State Program Revision
. Procedures for Processing Plans of Asproved 12/31/80
NPDES States to Implement NPDES General
Permit Programs
. Application Forms 1 and 2c 12/10/80
. Outer Continental Shelf Coordination 6/05/80
Committee
1981
(number not used)
. Determining Whether Revisions to State NPDES
Programs Xace to Authorize the Issuance
of General Permits are Substantial • 2/12/81
. NPDES Permit Issuance for Iron and Steel
Industry . 5/15/81
n-79-3
n-79-4
R-79-5*
n-79-5
n-80-1
n-80-2
n-80-3
n-80-4
n-80-5
n-80-5
n-80-7
n-80-8
n-80-9
n-80-10
n-80-li
n-80-12
n-80-12*
n-80-K-
n-80-15
n-30-15
n-80-17
n-8C-18
n-80-19
n-Sl-1
n-51-2
n-31-3
-------
Persnt
Program
Title Date Coda
3d Permitting 11/2/81 n-31-4
NPDES Permit Issuance for °u!p and Paper
Facilities with 3CT Limitations to
Other Facilities 5/15/81 n-81-5
Status of the Major NPOES Industrial
Permits list 12/10/31 n-31-6
Application of the NPOES General
Permit Program to Offsnore Oil
and Gas Facilities 7/30/81 n-31-7
1532
Use of "Draft Supplement to Develop-
ment Document for Effluent Limitations'
Guidelines* and New Source Performance
Standards for the Phosphorous Derived
Chemicals Segment of the Phospnate
Manufacturing Point Source Category"
(Octooer 1977) in Writing NPOES Permits 1/13/82 n-82-1
Policy for the Second Round Issuance
of NPOES Industrial Permits 6/02/82 n-32-
-------
LIST OF CURRENT POLICIES BY SUBJECT
"Title
Administrative Guidance
A. Forms:
Permit Form
Alternative In Permit Language
Feedlot Perm:* Format
Application Forms-1 and,2c
Date
9/18/73
,12/27/73
^7/29/74
12/10/80
Penrnt
Program
-Code
n-73-2
n-73-4
n-74-2
n-.80-18
3. Procedures:
Applicability of Revised NPDES Regs.
to Permits Currently Being Processed
1/18/80
n-80-2
II. Regulatory Procedures
8. Industrial:
C. Municipal:
D. Tie-in:
F. Consolidated:
Suspension of Portion of Definition
of "Waters of the US" in Consolidated
Permit Regulations
Suspension of Provisions in
Consolidated Permit Regulations
Establishing Criteria for NPDES
New Source Determinations &'Proposed
Revision of the Regulations
III. Federal/State Relationships
A. NPDES States:
Clarification of OGC Opinion
No. 40 (State Review Authority)
State Regulation of Federal Facilities
7/15/80
9/25/80
2/04/77
3/10/78
n-80-S
n-80-12
n-77-1
n-78-1
-------
IV
Transfer of Authority over Federal
Facilities to NPDES States
Review of State NPDES Permits Written
Prior to State Program Revision
Procedures for Processing Plans of
Approved NPDES States To Implement
NPDES General Permit Programs
Determining Whether Revisions to State
NPDES Programs Made to Authorize the
Issuance of General Permits are
Substantial
3. Non-NPDES States:
C. Water Quality Management Plans:
Coordination Between NPDES Program
and Weter Quality Management
Attachment - Coordination
Binding Effect of 303(e) 3asin Plans
Impact of Phase I Basin Plans
NPDES Permit and Requirements of *
State Law
£. Safe Drinking Water Act:
Legal Interpretations and Information Memos,
Intermittent Streams
Disposal of Supply Water Treatment Sludges
NPDES Permit Authorization to Discharge
American Petroleum Institute v. EPA -
Phase II Iron & Steel Guidelines -
Mahoning River Valley
Request for Policy re Possible Use of
NPDES Permits to Promote Better Sludge
Management
NPDES Permit in Wetlands Areas
Implementation of Section 403
Policy Regarding the Inclusion in Permits
of More Stringent Effluent Parameters
Confidentiality of NPDES Permit
Applications
Coal Mining Under the Surface Mining
Control and Reclamation Act of 1977
Certification and Permitting of Dischargers
in Boundary Waters
Opinions on Variances in Second Round
and Other Issues
Date
U/23/78
12/24/30
12/31/30
2/12/81
7/07/75
and
4/02/76
8/24/75
9/01/75
5/04/77
9/23/73
9/13/74
4/2S/75
8/24/75
10/4/76
4/13/77
7/12/77
7/20/77
13/13/77
4/06/78
3/25/78
4/19/73
6/13/73
Permit
Program
Code
n-78-15
n-SC-15
n-80-17
n-81-2
n-75-5
n-76-5
n-75-8
n-75-3
n-77-8
n-73-3
n-74-3
n-76-I
n-75-7
n-76-10
n-77-5
n-77-12
n-77-13
n-77-15
n-78-2
n-78-S
n-7S-4
n-78-7
42.-
-------
V.
VI.
Title Pats
Ex Parte Contacts in Adjudicatory Hearings 6/16/78
£x Parts Contacts in EPA R'jlemaking 8/04/77
Innovative Technology Extensions -9/06/78
Applicability of 301(h) and (i) to Federal
Facilities 9/12/78
Request for Legal Opinion - Inclusion of
Compliance Schedules in Second Round
and New Permits 12/26/78
Separate Storm Sewers '9/11/79
Regional Review of State-Issued NPDES
Permits 1/18/80
OGC Memo-Use of Carbonaceous Test Results 4/18/80
Statement By Agency Personnel Purporting
to Sanctional1 Actions Whicn are In-
consistent w/ Statutory Requirements ..5/28/80
NPDES Permit Issuance for Iron & Steel
Facilities 9/15/80
BCT Cost Test Guidance 9/30/80
NPDES Evidentiary Hearing Management
Programs * 10/03/80
NPDES Permit Issuance for Iron and
Steel Industry 5/15/81
SCT Permitting 11/02/81
NPDES Permit Issuance for Pulp and Paper
Facilities with SCT Limitations to
Other Facilities 5/15/81
Status of the Ma;or NPDES Industrial
Permits List 12/10/81
Use of "Draft Suoplement to Development
Document for Effluent Limitations
"., Guidelines and New Source Performance
Standards for the Phosphorous Derived
Chemicals Segment of the Phosohate
:.. Manufacturing Point Source Category"
"• (October 1377) in writing HPDES Permits 1/18/82
Second Round Permits:
Policy for the Second Round Issuance
of NPDES Industrial Permits 6/02/82
Technical Guidance:
Policy on Storage A Release for Water
Quality Control in Reservoirs Planned
by Federal Agencies 1/16/73
Additional Guidance for Petroleum Marketing
Terminals & Oil Production Facilities 7/18/74
Application of Electroplating Guidelines 8/28/74
Use of Closed Cycle Cooling Systems to
Meet the Reouirements of Section 316(b) 2/26/75
Municipal Wastewater Treatment Ponds 8/12/76
Asbestos Limits 10/15/76
Program
Code
n-78-8
n-78-10
n-78-12
n-78-15
n-78-18
n-79-4
n-80-1
n-80-4
n-80-6
n-80-11
n-80-14*
n-80-15
*
n-81-3
n-81-4
n-81-5
n-81-6
n-62-1
n-82-2
n-73-1
n-74-1
n-74-3
n-75-1
n-76-S
n-75-11
-------
T r
w
A •
TUla Date
ITse of low Flow lamentation to Meet
water Quality Standards 11/08/76
Comments on Region VIII1 s Approach to
Writing Effluent Limits for Confined
Aninial Feeding Operations 12/15/76
Fecal Colifonn Bacteria Limits 2/14/77
Water Treatment Plant Limitations . 4/13/77
Use of In-Stream Mechanical Aerators
to Meet Water Quality Standards 5/02/77
.Implementation of Promulgated Section
307(a) Toxic Standards 6/01/77
Suspended Solids Effluent Limitations for
Publicly Owned Wastewater Treatment Ponds 9/01/78
Guidance on Setting 8CT Permit Limits for
Breweries under Section 402(a)(l) of
the CWA 10/18/79
Treataoility Manual 9/25/80
Outer Continental Shelf Coordination
Committee 6/06/30
Application of the NPOES General Permit
Program to Offshore Oil and Gas Facilities 7/30/81
Variances:
Policy re Procedures for Fundamentally
Different Factors 3PT Variances 8/18/77
Variance Aoplications - 9/12/78
3I5(») & (b) Technical Guidance Documents 5/01/77
Cacrsinatsd Municipal Strategy
National Municioal Policy 4 Strategy 10/7$
Caere*.nation between Regions* Enforcement
and Water Programs re Pretreatment
Program 11/29/78
Major Municipal Permitting in FY 81 7/1C'30
Pretreetiaent:
Guidance to States re Pretreatment 9/8/78
Program (see ajso Feb. 1979 publication-
Guidance for NPDES States on
Implementation of the General
, Pretreatrcent Regulations -
40 CFR Part 403)
State Pretreatment Programs 4/12/79
EPA Procedures for Review and
Aooroval of State Pretreatment
Program Submissions 4/20/79
Perait
Program
Code
n-76-12
n-76-14
n-77-2
n-77-4
n-77-7
n-77-10
n-78-11
n-79-6
n-80-13-1
n-80-19
n-81-7
n-77-14
.n-73-14-
n-77-o*
n-79-5*
n-78-17
n-SC-8
n-78-13*
n-79-2
-------
-£ Permit
• * Program
Title Date Code
Incorporation of Dretre2tment"Progreni
Development Compliance Schedules into
- "-"PQTW NPDcS Permits -- " 1/23/80 n-80-3
?retreaiment Compliance Schedule n-SO-5
» » - «»~ ^
* »
X. .._-,8icwionitoring: ^- . „ - .
OGC Memo "Use of Siomonltoring in,the
-. NPDES Permit Prograra' .. -^1/11/79 n-79-1
-------
-------
1.2.
"Working Principles Underlying EPA's National Compliance/Enforcement
Programs", dated November 22, 1983. See GM 24.
-------
-------
1.3.
"CLEAN WATER ACT COMPLIANCE/ENFORCEMENT GUIDANCE MANUAL", dated May 1985.
Table of Contents and Chapter Contents pages only. Copies of the manual or
portions nay be obtained from Program Development and Training Branch,
Office of Enforcement Policy OE (LE-133).
-------
-------
The Clean Water Act
Compliance/Enforcement
Guidance Manual
U.S. Environmental Protection Agency
Washington, DC 20460
Prepared by
The Office of Enforcement and Compliance Monitoring
t- !
-------
-------
Table of Contents
Chapter One Overview
1 Purpose of the Manual 1-1
2 Introduction 1-3
3 A Short Legislative History 1-7
4 Overview of the Clean Water Act 1-11
5 Exhibits 1-29
Chapter Two General Operating Procedures
1 Introduction 1-1
2 Priaary Office Responsibilities 2-3
3 Organizational Charts 2-9
4 Exhibits 2-15
Chapter Three Compliance Monitoring Procedures
1 Introduction 3-1
2 Self-Monitoring and Other Information Gathering 3-3
3 Inspections 3-7
4 Reviewing Facility Recordkeeping and Reporting 3-19
5 Warrants 3-21
6 Exhibits 3-25
CWA Covpliance/Enforceaent i Guidance Manual 1985
-------
Chapter Four Documentation of Evidence
I Introduction
2 Self-Monitoring Reports
3 Compliance File Review
4 Review of Sources of Evidence
5 Exhibits
4-1
4-3
4-5
4-9
4-15
Chapter Five Responding to Nonconpliance
1 Introduction
2 Level of Action Policy
3 Exhibits
5-1
5-3
5-7
Chapter Six Administrative Enforcement
1 Introduction
2 Administrative Enforcement
3 Exhibits
6-1
6-3
6-15
Chapter Seven Administrative Enforcement Actions; Civil
Penalty Provisions
7-1
Chapter Eight Judicial Enforcement; Civil Actions
1 Introduction
2 Elements of a Violation: Civil
3 Procedures for Filing Actions
4 Consent Decrees
5 Exhibits
8-1
8-5
8-9
8-21
8-25
ii
Guidance Manual 1985
-------
ChapterNine Criminal Enforcement
1 Criminal Enforcement
2 Exhibits
9-1
9-15
Chapter Ten Enforcement of Consent Decrees
1 Introduction
2 Consent Decree Tracking and Monitoring
3 Consent Decree Enforcement
4 Exhibits
10-1
10-3
.10-5
10-17
Chapter Eleven Special Topics in the NPDES Program
1 Introduction
v
2 Standard Permit Conditions
3 Permit as a Shield
4 Issuance of Best Professional Judgment Permits
5 Special NPDES Evidentiary Hearing Procedures
6 The Freedom of Information Act
7 Protection of Confidential Business Information
11-1
11-3
11-13
11-15
11-19
11-25
11-29
CWA Covplianee/Enf ore
ill
Guidance Manual 1985
>s _
-------
CH& CoBpnance/Eof orceaentTV Guidance Manual 1985
-------
-------
Chapter _ Cont.nr,
CWA Compliance/Enforcementl-li Guidance Manual 1985
-------
Chapter Two
General Operating Procedures
Chapter Contents Page
1 Introduction 2-1
2 Primary Office Responsibilities 2-3
Regional Administrator 2-3
Headquarters 2-4
Department of Justice and Referral Procedures 2-6
3 Organizational Charts 2-9
4 Exhibits 2-15
2-1: Case Referrals for Civil Litigation 2-17
2-2: Implementation of Direct Referrals for
Civil Cases Beginning December 1, 1983 '2-22
CHA. Compliance/Enforcement 2-i Gmltim** Manual 1985
-------
Chapter two Contents
{/IA CWA Coopllaxtce/Enforeeaent
2>il Guidcnce Maaoal 198S
-------
Chapter Three
Compliance Monitoring Procedures
Chapter Contents
Page
1 Introduction
3-1
2 Self-Monitoring and Other Infcreation Gathering
3-3
3 Inspections
Neutral Inspection Scheme
Types of Inspections
Notification of a Pending Inspection
Chronology of Inspection Procedures
Professional Conduct During the Inspection
Entry
Contractor Inspections
Opening Conference
Conducting the Inspection
Confidential Business Information
Exit Interview
Documentation and Inspection Report
3-7
3-8
3-8
3-9
3-10
3-12
3-12
3-13
3-14
3-14
3-16
3-17
3-17
4 Reviewing Facility Reeordkeeplnq and Reporting
NPDES Requirements Review
POTW and Industrial Contributor Pretreatment
Requirements Review
5 Warrants
Policy
Securing and Serving an Administrative Warrant
3-19
3-19
3-20
3-21
3-21
3-22
CVA Compliance/Enforcement
3-1
Guidance Manual 1985
-------
Chapter Three Cocteota
6 Exhibits 3-25
3-1: Discharge Monitoring Report 3-27
3-2: Model Pre-Inspeccion Notification Letter 3-29
3-3: NPDES Compliance Inspection Report 3-30
3-4: Deficiency N^cice 3-32
3-5: Records, Reports, and Schedules Checklist 3-33
3-6: ttodel Application for Administrative Warrant 3-36
3-7: Model Affidavit in Support of Application
for an Administrative Warrant 3-37
3-8: Model Administrative Warrant 3-39
/ CWA Compliance/Enforcement 3-il Guidance Maaual
L
-------
Chapter Four
Documentation of Evidence
Cnapter Cs-te-its __ Page
2 Self-Monitoring Reports 4-3
3 Compliance File Review 4-5
Organizing Compliance Data ' > 4-5
Controlled Identification of Samples 4-6
4 Review of Sources of Evidence 4-9
Compliance File Documentation 4-9
Further Processing of the Compliance File-
Enforcement Case Review 4-13
5 Exhibits 4-15
Exhibit 4-1: Custody Seal 4-17
Exhibit 4-2: Chain of Custody Record 4-18
CWA Compliance/Enforcement 4-i Guidance Manual 1985
Js j
-------
Chapter Four
GWA Compliance/Enforcement 4-ii Guidance Manual 1985
-------
Chapter Five
Responding to Noncompliance
IS-ZT Contents Paze
2 Level of Action Policy 5-3
Enforcement Response Guide 5-3
Informal Responses 5-4
3 Exhibits 5-7
Exhibit 5-1: Enforcement Response Table 5-9
Exhibit 5-2: Model Record of Cotnnunication 5-13
Exhibit 5-3: Model General Informal Warning Letter 5-14
Exhibit 5-4: Model Letter: Overdue Discharge Monitoring
Report (DMR) 5-15
Exhibit 5-5: Model Letter: Deficiencies in Completing the DMR 5-16
Exhibit 5-6: Model Letter: Violation of Effluent Limitations
and Failure To File Reports 5-17
CWA Compliance/Enforcement 5-i Guidance Manual 1985
-------
Chapter Five Couceacs
(tb
CHA. Compliance/Enforcement 5-ii Guidance Manual 1985
-------
Chapter Six
Administrative Enforcement
Chapter Contents Page
1 Introduction 6-1
2 Administrative Enforcement 6-3
Section 308 Letters 6-3
Notices of Violation 6-5
Administrative Orders 6-7
Contractor Listing 6-11
NPDES Permit Actions 6-12
3 Exhibits 6-15
6-1: Model Section 308 Letter—
Request for Municipal Compliance Flan 6-17
6-2: Model Section 308 Letter—
Request for Composite Correction Plan 6-24
6-3: Sample Section 308 Letter-
Industrial Discharger 6-32
6-4: Model Notice of Violation 6-40
6-5: Recommended Format for Clean Water Act
Section 309 Administrative Orders 6-43
6-6: Model Municipal Administrative Orders 6-68
6-7: Model Notice of Deficiency 6-84
CHA Compliance/Enforcement 6-i Guidance Manual 1985
-------
Chapter Six
CWa, Cowpllance/Enf orcenent 6-ii Guidance Manual 1985
-------
Chapter Seven
Administrative Enforcement Actions:
Civil Penalty Provisions
Chapter Contents Pace
CHA Compliance/Enforcement 7-i Guidance Manual 1985
-------
Chapter Seven
CHA Compliance/Enforcement 7-11 Guidance Manual I9t*3
-------
Chapter .Eight
Judicial Enforcement: Civil Actions
Chapter Contents Page
1 Introcjction 8-1
Statutory Authority 8-1
2 Elements of a Violation: Civil 8-5
Evidence in Support of Civil Actions 8-5
•
3 Procedures for Filing Actions 8-9
Preparation of the Referral Package 8-9
Interrelationship of Referral Process,.Litigation, and
Negotiations 8-13
Filing the Complaint 8-14
Injunctive Relief 8-15
Discovery 8-18
Issues That Are Mot Revievable at Trial 8-18
Motion for Summary Judgment 8-19
4 Consent Decrees 8-21
Contents of the Consent Decree 8-2.1
5 Citizen Suits [Reserved] 8-25
CHA Compliance/Enforcement 8-1 Guidance Manual 1985
-------
Cnapicr
6 Exhibits 8-27
8-1: Model Civil Litigation Report Outline and Guide 8-29
8-2: Sample Complaint for Industrial Discharger 8-38
8-3: Sample Complaint for Municipal Discharger 8-50
8-4: Sample Pretreatment Complaint 8-58
8-5: Sample Motion for Preliminary Injunction 8-67
8-6: Sample Request for Admissions 8-69
8-7: Sample Notice of Deposition Upon Oral Examination 8-73
8-8: Sample Interrogatories 8-76
8-9: Sample Request for Production of Documents 8-95
8-10: Sample Motion for Summary Judgment 8-107
8-11: Sample Industrial Consent Decree 8-135
8-12: Sample Municipal Consent Decree 8-153
8-13: Sample Pretreatment Consent Decree 8-161
-72
CHA Compliance/Enforcement 8-ii Guidance Manual 1985
-------
Chapter Nine
Criminal Enforcement
Chapter Contents Fage
1 Criminal Enforcement 9-1
Statutory Authority 9-1
Basic Enforcement Policy 9-2
Criteria for Identification of a Potential
Criminal Action 9-2
Criminal Enforcement Priorities 9-5
Procedures for the Investigation and Referral
of a Criminal Case 9-9
2 Exhibits 9-15
^^^^^^^^^^^^M^MM ,
9-1: Criminal Enforcement Provisions of the
Clean Water Act 9-17
9-2: Sample Criminal Information 9-19
9-3: Sample Criminal Information 9-25
9-4: Functions and General Operating Procedures
for the Criminal Enforcement Program 9-31
9-5: Office of Criminal Investigations:
Management and Field Offices 9-47
9-6: Format for Criminal Case Referrals 9-51
Cua Compliance/Enforcement 9-i Guidance Mam"*1 1985
-------
1985
-------
Chapter Ten
Enforcement of Consent Decrees
Chapter Contents * Page
1 Introduction 10-1
2 Consent Decree Tracking and Monitoring 10*3
3 Consent Decree Enforcement 10-5
Factors To Weigh 10-5
Types of Enforcement Responses • 10-9
*
4 Exhibits 10-17
10-1: Consent Decree Tracking Guidance 10-19
10-2: HEIC Consent Decree Tracking Guidance 10-26
10-3: Demand Letter for Stipulated Penalties (Reserved) 10-44
10-4: Motion To Enforce Decree 10-46
CMA. Covpliance/Enf or cement 10-i flnHmgg Manual 1985
f
-------
C$14 Coopllance/Enf orceaent
10-ii
Gttldaac* Manual 1985
-------
Chapter .Eleven
Special Topics in the NPDES Program
Chapter Contents Page
1 Introduction 11-1
2 Standard Permit Conditions 11-3
Duty To Comply 11-3
Proper Operation and Maintenance 11-4
Duty To Mitigate 11-4
Duty To Halt or Reduce Activity 11-4
Duty To Provide Information " 11-4
Inspection and Entry 11-5
Monitoring and Recordkeeping 11-5
Reporting and Signatory Requirements 11-6
Notice of Planned Physical Alterations or Additions 11-9
Bypass of Treatment Facilities 11-10
Upset Conditions 11-10
Duty To Reapply 11-11
3 Permit as a Shield 11-13
The General Rule 11-13
Exceptions to the General 'JLule 11-14
4 Issuance of Best Professional Judgment Permits 11-15
Setting BPJ Permit Limitations 11-15
Issuing the BPJ Permit 11-17
CW* Compliance/Enforceaent 11-1 Guidance Manual 1985.
-------
Chapter Eleven Contents
5 Special NPPES Evidentiary Hearing Procedures 11-19
Request for a Hearing 11*19 .
Filing Documents 11-19
Ex Parte Communications 11-20
Prehearing Conferences 11-20
Motions 11-21
Summary Determinations 11-21
Bearing Procedures 11-22
Interlocutory Appeals 11-23
6 The Freedom of Information Act 11-25
Denials of FOIA Requests • 11-26
Exemptions 11-27
7 Protection of Confidential Business Information 11-29
1 U
, nn_
CH4 Ctonpllance/Eaforceoent 11-ii Guidance Manual 1985
-------
1.4.
•ENFORCEMENT MANAGEMENT SYSTEM GUIDE", dated February 27, 1986, (updates
Interim document dated September 27, 1985). Table of Contents and Chapters
L and 2 only.
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C 20460
FEB 2 7 1986
MEMORANDUM
SUBJECT: Enforcement^Management'System Guide
FROM: Lawrence J. Jensen, Assistant Administrator
for Water (WH-556)
TO: Regional Water^Management^Division'Directors
Regions I-X
State NPDES Program Directors
I am extremely pleased to transmit to you the revised and
final version of the Enforcement Management System (EMS) Guide.
This revision includes Chapter I* Chapter II* Attachment A
(Violation Review Process)* Attachment B (the Enforcement Response •
Guide)* Attachment C (NPDES Violation Summary format)* Appendix I
(List of Guidance and Supporting Documents)* and Appendix II
(Abbreviations of Frequently Used Terms and EMS Definitions). The
EMS Guide (especially the principles in Chapter II) provides
additional explanation of the regulatory requirements of 40 CFR
123.26* Requirements for Compliance Evaluation Programs.
The attached document is a revision of the 1977 EMS Guide.
It differs from the 1977 version in several ways. Perhaps most
significantly* it 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 1977 version had no such stated requirement. Additionally,
the 1985 EMS is expanded beyond Chapters I and II and will eventually
include all of the most significant strategy and policy documents
affecting the NPDES compliance monitoring and enforcement program.
Finally* this document has been updated to incorporate the language
and concepts of the "Guidance for Oversight of the NPDES Program"
and to reflect the emergence of a pretreatment enforcement program.
Later this year* a complete version of the EMS Guide with all
chapters will be transmitted to you. The table of contents included
in this transmittal identifies the additional chapters which will
be included in that version. The 1986 EMS Guide will be expanded
to nine chapters, including a chapter on Pretreatment Enforcement.
These chapters will be transmitted when they are available and will
contain policy and guidance for specific program areas.
-------
-2-
While the principles of EMS have not been changed, the 1986
EMS Guide may require that some Regions revise and update their
system, and that NPDES States develop or update written procedures
for a State-specific EMS. Both Regions and NPDES States should now
adopt and implement the principles of EMS and procedures for
reviewing violations* determining appropriate actions* and managing
permit compliance information that are consistent with the EMS
Guide. All administering agencies are expected to have written
systems in place by October 1, 1986.
I want to express my deep appreciation to those Regional*
Headquarters* and State personnel who have served on the Work Group
which developed this document. Rebecca Hanmer* Director, office of
Water Enforcement and Permits has told me that the Group labored
long and well. I believe you will agree that the final document
reflects their substantial efforts.
If you have questions about this document or the plans for
implementation, please feel free to call J. William Jordan, Director*
Enforcement Division (202/475-8304) or Anne Lassiter* Chief, Policy
Development Branch (202/475-8307).
Attachments
-------
THE ENFORCEMENT MANAGEMENT SYSTEM
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
(CLEAN WATER ACT)
U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF WATER
1986
-------
FOREWARD
This document describes the Enforcement Management System (EMS) for
the National Pollutant Discharge Elimination System (NPDES) Proaram.
The Enforcement Minanement System is a process to collect, evaluate,
and translate compliance information into timely and appropriate
enforcement actions. The process is supplemented Hy chapters
various procedures, policies and regulations. While the Enforcement
Management System embodies certain Fundamental principles, the
process for applying those principles must be flexible and dynamic.
The Enforcement Management System reflects the collective experience
o* the administering agencies in managing ^PDES compliance and
enforcement activities.
Lawrence J. Jensen Effective Date
Assistant Administrator for Water
-------
TABLE OF CONTENTS
CHAPTER II.
CHAPTER I. Introduction and Background
A. Introduction and Purpose
B. Use of this Document
C. Overview of Delegated States
The Enforcement'Management System
A. The Basic Principles of the Enforcement
Management System
Attachment A - The Violation Review "Proceeds
Attachment B - The Enforcement Response
Guide
Attachment C - Violation Summary Form
Administrative Enforcement Actions - Policies and
Guidance
Civil Penalty Policy and Guidance
Compliance Inspections - Policies and Guidance
A. The Compliance Inspection Strategy
B. DMR/QA Policy
The National Municipal Policy and Guidance
Program Reporting Requirements - Policies and
Guidance
A. The Permit Compliance System (PCS) Policy
B. QNCR Guidance
**CHAPTER VIII. Pretreatment Enforcement - Policies and Guidance
*CHAPTER III,
•CHAPTER IV.
*CHAPTER V.
•CHAPTER VI.
•CHAPTER VII.
•CHAPTER IX.
APPENDIX I
APPENDIX II
• A. Municipal Pretreatment ,Enforcement
VB. Industrial Pretreatment'.Enforcement
Federal Facility Enforcement - Policies and Guidance
(Being Revised)
List of Supporting Documents
List of Abbreviations and Definitions
• To be Added
••To be Developed
-------
CHAPTER I - INTRODUCTION AND BACKGROUND
A. Introduction and Purpose
Achievinq and maintaining a high level of compliance with
environmental laws and regulations are two of the most important
goals of Federal an* State environmental agencies. The Unite-J
States Environmental Protection Agency (USEPA) has stressed
consistently the need for a systematic administrative approach
to compliance monitoring and enforcement with the objective
of achieving a consistent, uniform national posture in the
implementation of the National Pollutant Discharge Elimination
System (NPDES) program established by the Clean Water Act
(CWA).
As the NPDES program has matured, there has been increased
awareness that the program will be effective only to the extent
that administering agencies (EPA or an NPDES State) are able
systematically and efficiently to identify instances of non-
compliance and then to take timely and appropriate enforcement
action to achieve the final obiective of full compliance by the
permittee with the CWA. Each administering agency should have
management procedures to track the status of permit compliance,
to surface violations, and to take timely and appropriate
enforcement action to achieve a return to compliance. USEPA
is also responsible for assuring that administering agencies
carry out their NPDES program functions—including timely and
appropriate enforcement responses—in a generally consistent
manner in order to protect water guality evenly across the
country, and to ensure that all dischargers throughout the
-------
- 2 -
nation receive fair treatment under the law. With the growth
in the number of States approved to administer their own NPDES
programs, EPA and the States face the challenge of ensuring
fairness and consistency among NPDES programs while maintaining
a strong Federal/State partnership which is based on mutual
trust and respect.
Effective use of available resources is also important"to
achieving a consistent, national enforcement program. In
implementing compliance tracking and enforcement systems,
administering agencies oust balance resources to ensure effective
tracking and maintenance of compliance by permittees. Conse-
quently, it is necessary for administering agencies to develop
policies and strategies which lead to: (1) the systematic
tracking of abatement steps taken by the permitted dischargers;
and (2) specific procedures for adjusting resources to achieve
compliance results in the most efficient manner possible.
Fully functioning NPDES programs are required to permit all
\
dischargers* both malor and minor, and to conduct appropriate
compliance assessment and enforcement activities x?or all
permittees. The EMS places priority on rapid response to
instances of significant noncompliance, especially by major
dischargers. As resources allow, administering agencies should
also address minor dischargers of concern and other instances
of noncompliance.
This document establishes a framework upon which to build the
management of a national enforcement program: the Enforcement
Management System (ENS). The ENS constitutes a system for T)V
-------
- 3 -
•translating compliance information into timely and appropriate
enforcement actions. It also establishes a system for identifying
priorities and directing the flow of enforcement actions based
on these priorities and available resources. Finally, the EMS
provides the flexibility for each administering agency to develop
management procedures which are best suited to its operations
and resources with the goal of most efficiently translating
compliance information into timely and appropriate enforcement
action.
The original ENS was developed in 1977 througr. the efforts of
a Federal/State work group. The fundamental principles of EMS,
as established in that first work group, are still applicable
to any compliance and enforcement system. However, the develo
ment of new and more comprehensive policies and procedures
necessitates both the update and expansion of EMS.
The original EMS Guide covered only the material in Chapters I
and II (including Attachments) of this document. The new EMS
Guide is expanded, attempting to pull together all of the most
relevant documents associated with an effective compliance
monitoring and enforcement program (see Appendix I). The
chapters of this system provide guidance and policy on indivi-
dual elements of the enforcement system. As new policies are
developed and old policies modified, they will be incorporated
into the EMS. The EMS, therefore, provides a framework of
basic principles, supplemented by policies and procedures whi h
may be modified reflecting "-.he dynamic proc«aa of compliance
monitoring and enforcement.
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- 4 -
B* Use of This Document
The EMS is a national guidance document to be used by
administering agencies in the development and improvement of
their own compliance trackina and enforcement systems. The
ENS, however, provides .sufficient flexibility so that adminis-
tering agencies may develop specific systems'that accommodate
their organizations, resources, and State laws, yet,result in
reasonable national consistency Of enforcement.
All administering agencies should have an enforcement management
system which is consistent with this document and the NPDES
regulations (40 CFR 123.26). That system should be in writing
and is subject to annual review. Of course, the length and
complexity of the ENS will vary among administering agencies,
reflecting variability in size-of program. Each administering
agency should review its existing system as quickly -as possible
to determine whether it is consistent with the principles
stated here. Where it is not, the system should be amended.
There is no one "correct* ENS. What is described here are the
minimum basic principles for an'effective compliance'tracking
and enforcement system. The specific 'details of how these
basic principles become operational by an administering agency
may vary widely and should, of course, reflect differences in
organizational structure, staffing and State laws. As long as *
the basic principles are incorporated, the agency-specific
system will be acceptable.
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- 5 -
The concept of national consistency in the implementation of
the NPDES program is one of the basic tenets of the CWA. While
xt would be difficult, and not necessarily effective, to have
identical enforcement responses for identical violations in
different States, the enforcement response should be directly
related to the severity of the violation. Given the decentrali-
zation of authority and responsibility in carrying out the
NPDES program, implementation of the basic EMS principles in
the EPA Regional Offices and the NPDES States should produce
national consistency, while still accommodating differences
between Regions and States.
C. Overview of Approved State Programs
A strong Federal/State relationship is essential to the effectiv
operation of a program as comprehensive and complex as the
NPDES program. One method of fostering a strong relationship
is to assure that roles are clearly defined and that the "rules
of the game" are understood by everyone. To achieve this end,
the USEPA and States have worked together to develop "Guidance
for Oversight of the NPDES Program" (see Appendix I) which is
an umbrella document that establishes the general criteria
under which both parties will operate. This document also sets
forth the basic criteria for oversight of enforcement programs.
The Oversight Guidance requires that Regions and States negotiate
*
individual agreements that clearly define performance expecta-
tions for the NPDES program, as well as the respective roles
and responsibilities of the Region and the State in administeri
the NPDES program. The Guidance is based on the assumption
.
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- 6 -
that where a State has an approved NPDES program* it has the
primary respo
ty to initiate appropriate enforcement
action to ensure compliance by permittees. However, USEPAhas
oversight.responsibility for that program, including the
responsibility to ensure that enforcement actions are taken on
a timely and appropriate basis, and may .initiate direct Federal
enforcement action. The Guidance requires the development of
protocols for notification and consultation to foster effective
communication and the timely resolution of issues between
Regions and States, and contains criteria for direct Federal
enforcement action*
The EMS further defines the principles necessary to the operation
of an effective compliance/enforcement program and provides the
basis for evaluationvOf*the performance of administering agencies.
This evaluation occurs at two levels: 1) USEPA Headquarters'
mid-year evaluations of Regional implementation of the EMS; and
2) Regional Offices' reviews of NPDES States, including file
audits of State programs. All States that receive Federal
grants -for implementation of-water^quality control programs can
also expect Regions to evaluate their performance in the
compliance/enforcement area against commitments made in-the
grant agreements.
In addition to the Guidance for Oversight of NPDES Programs and
the EMS, there are other documents which are necessary for
effective implementation of the NPDES program (see the list of
guidance documents in Appendix I). Included among these are
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- 7 -
the "Annual Operating Guidance" which identifies priority program
activities for the operating year, and agency policy documents.
Administering agencies are expected to be knowledgeable about
these documents; however, they are not included as chapters in
the EMS since they are frequently effective for a limited
period of time or are more inclusive than the NPDES program.
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CHAPTER II. THE ENFORCEMENT MANAGEMENT SYSTEM FRAMEWORK
The Basic Principles of EMS
There are seven basic principles that: are common to an effective
EMS. Described below are these principles and the minimum basic
requirements necessary for an effective tracking and enforcement
system. As stated in the Introduction, the specific details of how
each of these basic principles becomes operational in a specific
State or Regional system may vary to reflect differences in
organizational structure, position mixes, and State laws. As long
as the basic principles are incorporated and are clearly recognizable,
the resulting system is acceptable. 'The purpose of the EMS is to
translate compliance information into *enforcement actions.
The EMS shoulds
1. Maintain a source inventory that is complete and accurate.
2. Handle and assess the flow of information available on a
systematic and timely basis.
3. Accomplish a pre-enforcement screening by reviewing the
flow of information as soon as possible after it is
received*
Perform ,a more formal enforcement evaluation where
appropriate,.using systematic evaluation screening .criteria.
5. Institute a formal enforcement action and follow-up where-
ever necessary.
6. Initiate field investigations based on a systematic plan.
7. Use internal management controls to provide adequate
enforcement information to all levels of the organization.
i
These principles are discussed in greater detail in the following
text. Each principle has certain subparts.which are integral elements
of the entire system.
93
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- 9 -
Principle No. It Maintain a Source Inventory
At the foundation of the EMS is a complete and accurate
compilation of all pertinent information on all dischargers
covered by NPDES permits. An effective program cannot exist
without this information base. [It is fully recognized that
the level of information for major dischargers may be more
complete than that for minor ones. The amount: of information
on minors will be a function of the administer•ng agency's
resources and priorities.] The EMS should have a detailed
inventory of sources which encompasses the elements listed
below:
A. The inventory should include appropriate basic information
concerning each source, such as name, location, permit
number, discharge limits, compliance dates* other permit
requirements and effluent data. For minors, this- source
inventory might be as simple as a permit compliance
file.
B. There should be a routine schedule for updating the
i
inventory to ref 1 -- *. changes in basic information, such
as changes in compliance schedules and permit limits,
and changes in the ownership/address of a source. The
more frequentlv the information is updated, the greater
the confidence .n its accuracy.
C. The inventory should be a ready reference for historical
information (e.g., has a soiree prev; usly missed or
failed to comply with schedule requirements). This
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- 10 -
-historical inventory for-majors and significant minors
will consist of many parts, including a violation summary
*
report (see Attachment C) and a log of previous enforce-
ment actions. The summary and log are discussed in
•greater detail'elsewhere'in'the"text.
D. *The inventory data for major's anV3 • significant -minors
should be entered directly-into-the-Permit-Compliance
System (PCS, the automated NPDES data base), where it
exists, in a timely manner consistent with nationally
established procedures (see Chapter IX). States which
are not regular users of PCS, and do not have an auto-
mated system that is compatible, should supply data to
the Region in a form that facilitates USEPA's entry of
the data into PCS.
E. Maintenance of the source inventory should be assigned
to a specific, identified organizational entity so that
responsibility for the completeness and accuracy of
source information is clear.
F. Data on dischargers should be-readily-accessible to-all
parties (USEPA Headquarters, Regions, NPDES States.and
citizens) to facilitate cooperation in carrying out
NPDES compliance and enforcement responsibilities.
G. There should be an identifiable process for determining
which dischargers have not applied for permits after
being required to do so and for following through in
these cases.
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- 11 -
Principle No. 2: Flow of Information
In order to ensure that the enforcement system is current, the
flow of information into the system is critical. With the
growth in the number ami complexity of environmental regulatory
nrograms, the need for rapid, efficient flow of information has
become more important. Therefore, it should be possible to
integrate information about individual dischargers obtained
from various sources into an effective information flow, which
is then channeled into decision and control points in the
system so that all information on an individual discharger is
available at any point in time.
The *ollowing items are examples of the types of reports and
other data that are potential sources of information for use
r
in an enforcement system:
— Data-Related reports (including such items as
compliance reports* industrial user reports, construc-
tion-comnleted reports, bypass/overflow reports, etc.)
— Construction grant-related information
— Discharge Monitoring Reoorts (DMRs)
— Inspection reports from field surveys
— Operation and maintenance reports, including annual
fiscal data as available
— Reports from other State and Federal agencies/ e.g./
health data/ information on fish kills
-- Reports and complaints from citizens
— Evidentiary hearing information
~ Permit modification raguests
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- 12 -
Information from other programs, such as the Resource
Conservation and Recovery Act (RCRA), Comprehensive
Emergency Response and Compensation Liability Act
(CERCLA), Toxic Substances Control Act (TSCA), and the
Safe Drinking Water Act (SDWA)
— Various pretreatment program reports
— Environmental audit reports provided by the-permittee
where they are required by the Agency to meet its
statutory mission
The elements needed to assure the smooth flow of information
are as follows:
A. Procedures should be established to integrate the
information from various sources about individual
dischargers into an effective data flow. The data
flow should be designed so that it is readily access-
ible at appropriate points in the decision-making
process. These procedures will facilitate the flow of
information between the States and USEPA, and will
^assure that the-terms and commitments contained in .the
various -agreements between the State and USEPA.are
met.
B. Appropriate time frames for the information flow should
be established and incorporated in the above procedures
to ensure timely response to the information* For
example, it may be appropriate to say that the allowable
elaosed time from receipt of a compliance report to
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- 13 -
its availability for review should be less than a
week. Special procedures and/or agreements should be
established with other programs (e.g., RCRA, TSCA, and
CERCLA) to insure the timely receipt of information
that may have a bearinq on water enforcement actions.
Principle No. 3; Pre-Enforcement Screening
The ore-enforcement screening process involves a series of
steps that should occur in the review of available information
to efficiently sort out noncomplying sources for appropriate
enforcement action. This process is critical to the integrity
of the NPDES enforcement system because it initiates the process
of sifting through the entire universe of permittees and others
subject to NPDES requirements. This leads to later steps that
place noncomoliers into various categories for subsequent
action. Most steps in the ore-enforcement screening process
can be accomplished by a compliance analyst who is trained to
identify signs of continuing or serious noncompliance.
Documented, in-place pre-enforceraent screening procedures should
include the following elements:
A. A system for initial review of incoming information:
(1) Procedures should clearly specify who is responsible
for each screening function in this initial review.
(2) Procedures should require the forecast of reports
due within a specified period of time (e.g., fore-/-
casting all reports due for tha next 30 days).
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- 14 -
(3) Specific guidelines for determining obvious
compliance from noncomp1ianee should be developed.
The guidelines should at least establish criteria
to be used to: determine receipt vs. nonreceipt;
identify the methodology for determining effective
oermit limits and limits required by Agency or court
orders-and whether Detroit-effluent limits or other
limits have been exceeded; and assign priority for
review of incoming reports of different tyoes.
(4) Procedures describing follow-uo action once a
determination of compliance status has been made
should include:
a. In cases of obvious compliance, no further
review may be necessary. In such situations,
the aopropriate update regarding the compliance
status is made in the source inventory.
b. Appropriate responses and time frames for
obvious noncompliance should also be established.
For example, nonreceipt of a report should be
followed up by a call or letter within ten
days. Procedures should be specified for
executing the initial response, triggering the
follow-up, and closing out the case (including
feedback to the source inventory* and entering
the information into PCS).
(5) Control procedures should be established for the
internal, transmittal of compliance information //
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*
(6) Procedures should be set up for the pre-enforcement
screening of the Discharge Monitoring Reports (DMR),
to determine whether the Violation Review Action
Criteria (VRAC) have been exceeded. Attachment A
to this chapter describes in detail those criteria
and their use. DMRs should be screened and data
entered into PCS (or transferred to the Region where
a State does not use PCS) within 30 days of their
receipt.
B. A system for development of a chronological history of
nc-compliance *
The initial review of the incoming information will
determine an instance of possible noncompliance by the
regulated facility (see A(3) above). Any instance of
permit noncompliance should be entered into PCS or a
comparable tracking system. The system that is used
should be capable of, producing a convenient h - ..torical
reference of instances of noncompliance. Procedures
should be developed to preserve th s hiatori L summary.
C. The means for technical evaluation of apparent
noncompliancei
Following the preliminary screening in the fo steps
above, staff review of the file of a dischai r that
appears to be in noncompliance should be con . icted for
purposes of a substantive technical evaluation. At this
\fY~) point in the process, it is important to:
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- 16 -
(1) Have detailed procedures and time.frames-for
conducting the technical evaluation to determine
the level and frequency of the violation, and to
determine the appropriate response to the specific
violation.
(2) Document anv action taken/not taken (including the
technical reason when the-technical Devaluation
indicates that a violation falls below the level of
"immediate action") in the historical summary and/or
PCS. These types of violations remain "actionable"
for future use as part of a subsequent file review.
(3) Establish timeframes for action on detected
violations.
(4) Have standard procedures for compiling material to
be used in the next evaluation step. For example,
if the decision is made to proceed with a formal
enforcement action, the procedures should set out
the type of information to be contained in the
documentation-sent to the.assigned author of .the
proposed action.
(5) Install a tracking system (e.g., violation summary,
pink slip) which should be maintained to locate an
enforcement action at any time in this process (see
the example in Attachment C).
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- 17 -
(6) Have procedures that identify who is responsible
for completing each phase of the evaluation and who
should make each decision as the instance of apparent
noncompliance is processed.
Principle No. 4: Enforcement Evaluation
When an instance of noncompliance is identified by the
pre-enforcement screening, the appropriate follow-up action
must be determined. This is a determination that should be
made by technical personnel with legal consultation, when
necessary. The following elements need to be in places
A. Guidelines and procedures which assist in determining
the appropriate levels of action for specific categori
of violations. National guidance on the appropriate
enforcement response to specific violations has been
developed and is contained in the Enforcement Response
Guide (Attachment B). Deviations from this Guide may
legitimately occur, depending upon the facts of a
specific case.
B. Procedures delineating the respective roles of the
technical and legal staff and establishing procedures
for coordination.
C. Procedures for compiling enforcement action background
information to support the enforcement decision.
D. Procedures for interaction and coordination with other
affected programs (e.g., RCRA, CERCLA and/or other
Ipr? agencies)* Written agreements between programs may be
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- 18 -
E. -Procedures-for information flow and decision-making
necessary to secure concurrence or nonconcurrence on the
enforcement action.
F. Time frames for completing a determination as to whether
the violation is "actionable" and initiation of the
appropriate response. For example, the provision could
state that the overall time •'from the date a report/event
is due to initiation of the appropriate art:on should
not exceed 45 days. The administering ag --/ should
establish time frames which are subject to review.
G. Procedures for escalating enforcement action if compliance
is not achieved expeditiously after taking the initial
action.
R. Procedures for closing out and updating the file and
for returning the compliance information to the data
base. Whpn it is decided that an enforcement action
will not be taken, it is important to have a written
record that clearly documents why the alternative action
(i.e., an informal-notification or a permit modification),
is more appropriate.
I. Procedures for providing feedback to the source inventory
that would correct any errors/misinformation found during
the screening process.
Principle No. 5t Formal Enforcement Action and Follow-Up
This crucial principle is the cutting edge of the EMS and begins
when the decision has been made to issue a "formal" enforcement
j
and State statutes '
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- 19 -
*>
and/or regulations. In general* that decision is triggered by x
a failure to achieve compliance within a specified period of
time through less formal means. According to the USEPA "Guidance
for Oversight of NPDES Programs", a formal enforcement action
is one that requires actions to achieve compliance, specifies a
timetable, contains consequences for noncompliance that are
independently enforceable without having to prove the original
violation, and subjects the person to adverse legal consequences
for noncompliance. Specific State enforcement actions should
be addressed by Regions and States on a case-specific basxs.
Regions can exercise their own judgment in interpreting and
adapting national criteria to States, so long as they can
justify the adaption of the State's enforcement process consistent
with national objectives.
The following elements for formal enforcement action should be
included in the EMS*
A. Specific designation of responsibility for writing the
formal enforcement action.
B. Guidance for the form and substance of the formal enforcement
action for use by the legal and technical staff. The basic
elements of the action should be summarized on this form.
C. A tracking system for following the progress of formal
enforcement actions through to final physical compliance.
This compliance tracking system should be capable of supportit
the flow of required information into PCS.
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- 20 -
^C. -Procedures rand "guidelines -for "escataring 'the action irf
compliance is not achieved expeditiously, especially in
o — • •
cases of noncompliance with an earlier enforcement action.
£. Procedures for establishing the basis for closing enforcement
actions and routing the 'appropriate compliance information
to the source inventory.
Principle No. 6: Initiation of Field Investigations
Field investigations are an integral part of any enforcement
program. The level of enforcement action is often dictated by
the ability of field inspection programs to respond to enforce-
ment needs. Enforcement programs are responsible for selecting
inspection candidates for both routine and special efforts of
the field units in support of the program. Field investigations
can be started at any time in the enforcement process. Chapter
V of the EMS Guide provides detailed guidance on field inspec-
tions; however, the following elements related to field
investigations should be included in an EMS.
A. Criteria and procedures for detecting candidates for field
investigations. This should .be accomplished through the
development of an.annual compliance inspection plan. Plans
and procedures consistent with the Compliance Inspection
Strategy (Chapter V) and clear criteria for selecting
candidates for appropriate mix of routine and special
compliance inspections must be in place.
B. Designation of responsibility to the enforcement program
manager for requesting field investigations in support of
the enforcement program. \O'"T
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- 21 -
C. Tiraeframes for reporting the findings of a field
•«
investigation. For example, the procedure may require a
full report to be submitted to the enforcement program
within 30 days of the completion of the investigation.
D. A mechanism for informing field investigation personnel of
the utilization of field surveys.
£. Procedures for coordinating field investigations between
the administering agencies.
Principle No* 7t Internal Management Control
Throughout the enforcement process it is vital for all levels
of management to be able to assess the effectiveness of the
program and to identify progress or deficiencies. Consequent1
the organization's enforcement procedures should provide feed-
back to give management the information it needs to ensure that
the program makes timely decisions and meets commitments.
Those procedures should allow for self-evaluation based on
reasonable timeframes* and should identify the focus of respon-
sibility for each element of the EMS. For internal management
control, an EMS should provide for:
A. The maintenance of a record cf specific formal enforcement
actions taken by the organization at any given period of
time.
B. A method of tracking information in terms of location and
action/reaction time.
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- 22 -
C. A system of evaluating specific activities in terms of their
quality, timeliness, results, and accomplishment of program
objectives.
D. .A system for assessing how the compliance data,tas indicators
of environmental results, help "meet the goals of the CWA.
E. Procedures that will result in'effective communication
between the USEPA Regional Offices and the States on all
aspects of the enforcement process, including: the current
status of noncompliant sources and enforcement actions as
reported in the Quarterly Noncompliance Reports; audit of
approved State programs; problem resolution; advance notifi-
cation of enforcement actions initiated by USEPA in approved
States; and similar program matters.
Conclusion
The successful Enforcement Management System should contain certain
key elements while remaining a flexible and dynamic system which is
geared to the organization and resources of the particular adminis-
tering agency. The system >should be'Strong and resilent-enough to
continue and'to translate compliance information"into'enforcement
results, regardless of pressures that affect the .system. The key
to the success of the system is the unimpeded flow of information
through the system which facilitates the rapid return of a non-
complying permittee to compliance. Good communication among all
parties in the system is essential to its success.
This chapter of the Enforcement Management System has described the
basic principles of the system. Implementation of the principles t -
to
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- 23 -
number of essential documents support this framework in order to
make the system whole (see Appendix I). The remaining chapters of
the EMS contain the most important of the supporting enforcement
guidance and policies.
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ATTACHMENT A
VIOLATION REVIEW PROCESS
Many NPDES permittees nay experience -some violation of their permit
conditions during the life of a permit or may violate enforcement
orders. An.effective Enforcement Management System (EMS) should
describe a process for reviewing and .screening those violations to
assure that enforcement resources are concentrated on the most
serious violations.
Throughout the violation review processr it should be remembered
that any violation of an NPDES permit is a violation of the Clean
Water Act (CWA) for which the permittee is strictly liable, and for
which USEPA encourages some type of enforcement response. An
administering agency's decision regarding the appropriate enforcement
action should be based on an analysis of all of .the facts and
relevant legal provisions involved in a particular case. A decision
to take no action in a given situation is within the enforcement
discretion of the administering agency, so long as the reason for
exercising-the no-action alternative is warranted and documented.
The violation review process has two main review elements--screening
all relevant data to determine: 1) whether there has been any type of
violation and the nature of that violation, and 2) whether the
violation requires professional review (defined by Violation Review
Action Criteria) and in some cases, listing on the Quarterly
Noncompliance Report (QNCR). These are discussed below.
-"'""
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-2-
General Screening Considerations
An administering agency's decision on whether to initiate an
enforcement action, and the type of action which is appropriate,
should include an evaluation of all available data to deter'nine
the seriousness of the violation, the compliance history of the
permittee, and other relevant facts in the case. The decision
to proceed should not be based solely on whether there is a
violation. There are many other circumstances which should be
considered in deciding whether to proceed with an enforcement
action. Included are the following) 1) a permit or enforcement
order schedule has been violated; 2) a violation has occurred
that presents an actual or imminent threat of significant harm
to the environment or to the public health and safety; 3) a
violation has occurred which, unless corrected, would erode the
integrity of an environmental protection program; 4) pretreatroent
program requirements are violated; 5) a source has failed to
report? 6) a source has conducted an unauthorized bypass; 7}
inspection results indicate a severe problem; 8) there are
known or suspected operation and maintenance problems; 9)
information provided by interested parties indicates that a
significant, violation has occurred; and 10) there are aesthetic
impacts related to the violation. These general violation
screening considerations should be applied in the violation
review process.
Violation Review Process
An effective Enforcement Management System (EMS) should include a
process for reviewing DMRs and other reports submitted by the
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- 3 -
permittee to determine whether that permittee is violating the
terms o€ its permit or enforcement order, where the permittee is
subject to such an ord»r. As a part of that process, the adminis-
tering agency should establish criteria for reviewing violations to
determine -which violations require priority review by a professional
to determine whether the violation should be subject^to a formal or
informal enforcement response. The initial screening of DMRs-to
make this determination is normally conducted by para-professionals.
Any violation of a permit or enforcement order that exceeds the
screening criteria — called Violation Review Action Criteria
* - t~-*-t 4
(VRAC) — should be reviewed by professional personnel to determine
the appropriate enforcement response. The remainder of this section
addresses the VRAC for: a) effluent violations of permits and
enforcement orders; and b) schedule, reporting and other non-effluent
violations of permits and enforcement orders.
A. Effluent Violations
Every NPDES permittee must submit Discharge Monitoring Reports
(DMRs) to the administering agency for its review to determine
whether there are violations of the effluent limitations in the
permit or in an enforcement order that is active against the
permittee. Federally-designated majors or P.L. 92-500 funded
minor NPDES permittees should submit DMRs either on a monthly or
quarterly basis. (Other permittees must also report but they may
be required to report on a less frequent basis.)
'The EMS encourages the administering agency to take -an appro-
priate enforcement response against all violations.
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A particular violation may be resolved by a permittee so that a
formal enforcement response by the regulatory agency is unnecessary.
Other violations may require formal enforcement action for
resolution.
Table I of this Attachment identifies the VRAC to be applied by
administering agencies in screening performance against effluent
limits. The VRAC established for violation of permit effluent
limits are more stringent than the reporting criteria established
in the QNCR regulation. Magnitude is not a factor in screening for
30 day average violations—only the number of violations—and
criteria are included for 7 day average and daily maximum violations.
The VRAC for violation of effluent limits in enforcement orders
equivalent to the criteria for reporting established by the CNCR
regulation. Approved NPDES States should consider the VRAC included
in Table I to be guidance and may modify the screening criteria to
reflect State resources and priorities. However, the VRAC established
by approved NPDES States should be no less stringent than the
criteria established in Table I and should include criteria for
violations of a seven day average or daily maximum. If the state
chooses to establish VRAC different from Table I, the EMS should
explain the basis for setting the threshold for VRAC.
B. Schedule, Reporting and Other Violations
The administering agency routinely examines the status of a permit ee
on a monthly or quarterly basis through review of DMRs=and other
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-5-
reports to determine whether the permittee is complying with sched-
ules, reporting, or other requirements set by the permit or by an
enforcement order, where such an order exists. As discussed in A
above, the.EMS encourages the-administering agency to take an
appropriate enforcement action against all violations. A particular
violation may be resolved by a permittee so that .a formal enforcement
response by the regulatory agency is unnecessary. Other violations
**
may require formal enforcement action for resolution.
Table I of this Attachment identifies the VRAC to be applied by
administering agencies in screening performance against schedule,
reporting, and other requirements for all permittees. The VRAC -
for violations of schedule and reporting requirements in this Table
are, in fact, equivalent to the criteria established for reporting
in the regulation, "National Pollutant Discharge Elimination-System
Regulations; Noncompliance and Program Reporting," commonly referred
to as the QNCR regulation* Approved NPDES States may modify the
VRAC included in Table I, but in no case should the VRAC be set at
a level less stringent than the reporting criteria identified in
Table I.
Significant Noncompliance(SNC)t Definition and Use
The QNCR regulation (40 CPR 123.45) establishes criteria for
reporting violations of permit conditions or enforcement orders by
major permittees in the Quarterly Noncompliance Report (QNCR).
Prom the universe of violations identified in the QNCR, a subset Of
violations will be identified as significant noncompliance (SNC).
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-6-
An explanation of which violations identified on the QNCR will
be considered SNC is provided in the QNCR Guidance. It should
be noted that since the definition of SNC is in guidance, it
may change front time to time.
As stated previously* VRAC exceeriances do not automatically require
a formal enforcement response, but do require a professional
review. The concept of SNC is important because it identifies
x
those violations which must receive a formal enforcement response
or return to compliance within a fixed period of time unless an
acceptable justification is established for not taking action.
(See Enforcement Response Guide.) Administering agency per-
formance in addressing SNC on a timely and appropriate basis
will be tracked in the Agency's Strategic Planning and Management
System (SPMS).
Summary
The VRAC are criteria for screening DMR's and other reports submitted
by permittees to determine whether the violation(s) requires a
professional review. Identification of a violation as meeting or
exceeding the VRAC does not establish the type of enforcement
response which should be taken or the time frame in which it should
be accomplished.
For many violations, VRAC is equivalent to the reporting criteria
established by the QNCR regulation. Those violations will be
reviewed by a professional and listed on the QNCR. In other cases,
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. 7 -
violations will be reviewed by a professional -even "though they
do not meet the magnitude or frequency criteria of the QNCR.
Finally, a subset of violations identified on the QNCR will meet
the definition of SNC. A designation that -a violation Is SNC
requires that the violation be corrected or that a formal enforce-
ment response be initiated within a specific period of time .by the
administer]no agency, unless an acceptable justification for~no
action is provided. This definition is provided in the QNCR
Guidance.
' X
I f
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TABLE I
VIOLATION REVIEW ACTION CRITERIA
VIOLATIONS OF EFFLUENT LIMITS
a. Permit Violations Criteria
30 Day Average Violations * 2 violations in 6 months
7 Day Average violations Two violations in a month
Daily maximum violations* Four violations in a month
* pH <4.0 or >11.0, or if continuous
monitoring criteria are exceeded
* Storm Water Pour times the effective limit
Any Limit Causes or has potential to cause
a water quality or a health
problem or the violation is of
concern to the Director
b. Enforcement Order Violations
Any Limit Cited in the Any violation during the quarter
Enforcement Order**
VIOLATIONS OF COMPLIANCE SCHEDULE PERMITS AND ENFORCEMENT ORDERS
Start Construction 90 days past scheduled date
End Construction
Attain Final Compliance
All Additional Milestones 90 days past scheduled date
* Excludes bacteriological counts (e.g.*fecal coliform), color,
and thermal parameters for which criteria are discretionary.
** In the absence of interim effluent limits in an enforcement
order, permit limits should be tracked and evaluated based on
the criteria for permit violations.
-------
- 2 -
VIOLATIONS OF REPORTING REQUIREMENTS IN PERMITS AND ENFORCEMENT
ORDERS
Discharae Monitoring
Reports (DMRs)
Pretreatment Renorts
Compliance Schedule Report
Final Proqress Report
All Additional Renorts
VIOLATIONS OF OTHER REQUIREMENTS
a. Pretreatment Program
-Implernentat ion
-Enforcement by POTW
b. General Permit Conditions
-Record Keeping, O&M
-BMP
c. Enforcement Orders
Any Other Retirements
Cited in the Enforcement
Order
d. Other Violations
30 days overdue or incomplete
or not understandable
30 days overdue or incomplete
or not understandable
30 days overdue or-incomplete
or not understandable
30 days overdue or incomplete
or not understandable
Failure to implement (issue
permits, enact ordinances,
inspect 1Us) local pretreatment
program reouirements.
Failure of the POTW to enforce
IU pretreatment requirements
Violation of narrative require-
ments (inaccurate recordkeeping,
inadequate treatment plant
operation and maintenance)
'Failure to follow Best
Management Practices (i.e.,
requirement to deveIon SPCC
plans and imnlement BMP)
Any violations during the
quarter
Violations for which a formal
enforcement action in recommended
by the Enforcement Response
guide.
-------
- 3 -
ANNUAL REVIEW
The file of any major permittee or minor permitte- of concern
should be reviewed at least once in a twelve month period, regardless
of whether the above criteria have been exceeded.
-------
ATTACHMENT B
ENFORCEMENT RESPONSE GUIDE
This guide is for the use of NPDES enforcement officials who are
responsible .for determining the appropriate enforcement.response
to a specific violation of the NPDES permit-and related sections
of the Clean Water Act. It is intended-to serve two main purposes:
1. It recommends enforcement responses that are timely and
appropriate in relation to the nature and severity of the
violation and the overall degree of noncompliance;
2. It provides a guide to ensure a uniform application of
enforcement response to comparable levels and types of viola-
tions, and it can be used as a mechanism to review the appro-
priateness of responses by an enforcement agency*
This guide should be used to select the most appropriate response
to instances of noncompliance. When making determinations on the
level of the enforcement response, the technical and legal staff
should consider the degree of variance from the permit condition or
legal-requirement,"the duration of the violation,-previous-enforce-
ment actions taken against the violator, and the deterrent effect
of the response on the similarly situated regulated community.
Equally important are considerations of fairness and equity, national
consistency and the integrity of the NPDES program.
In any particular case, these factors may lead to a response that
differs from that contained in the guide. It should be emphasized
that any violation of an NPDES permit is a violation of the Clean
V!
-------
- 2 -
Water Act (CWA). The administering agency (Region or approved State
in its exercise of enforcement discretion, may elect any of the
enforcement responses available under and consistent with the CWA.
All SNC violations must be responded to in a timely and appropriate
manner by administering agencies (see Attachment A). The response
should reflect the nature and severity of the violation, and,
unless there is supportable justification, the response must be a
formal enforcement action (as defined elsewhere in this document),
or a return to compliance by the permittee generally within one
quarter from the date that the SNC violation is first reported on
the QNCR. Administering agencies are expected to take a formal
enforcement action before the violation appears on the second QNCR,
generally within 60 days of the first QNCR. If the approved State
does not act before the second QNCR, the State should expect USEPA
to take a formal enforcement action* In the rare circumstance when
t
formal enforcement action is not taken, the administering agency is
expected to have a written record that clearly justifies why the
alternative action (informal enforcement action or permit modification)
was more appropriate.
A key element in all enforcement responses is the timeliness with
which they are initiated and effect compliance. Given many types
of violations and the variance in resources available to the
administering agencies, no specific time frame is established in
which to initiate and complete a given response. Within 30 days
of the identification of any violation, the appropriate respons*-
should be determined, and any action taken (or not taken) should
120
-------
^ JJ _^^
be documented. If noncompliance continues beyond what is considered
to be a reasonable time, the type of formal enforcement action
needed should be established.
This guidance addresses a broad range of NPDES violations. It is
not intended to cover all types of violations. The responses in
this guide are suggested responses. They reflect the enforcement
actions available to the USEPA. Other administering agencies may
have alternative enforcement responses that are equally effective.
The measure of the effectiveness of an enforcement response includes:
—• whether the noncomplying source is returned to compliance
as expeditiously as possiblet
— whether the enforcement response establishes the appropriate
deterrent effect for the particular violator and for other
potential violatorsj and
— whether the enforcement response promotes fairness of
government treatment as between comparable violators, as
well as between complying and noncomplying parties.
In exercising its enforcement oversight responsibilities, the USSPA
must evaluate whether an administering agency has used an appropriate
enforcement response to .a given noncompliance situation. "The
Enforcement Response Guide .will be used as -a general guide -in
making that assessment, Keeping in mind the enforcement responses
available to the administering agency, the results that are achieved,
and the need to achieve an acceptable level of national consistency.
This guide has been developed for the internal use of USEPA and is
not intended to create legal rights or obligations, or to limit the
enforcement discretion of any of the administering-agencies.
12
-------
ENFORCEMENT RESPONSE
SAMPLING, MONITORING AND tefOKTINS
NCNOCMPLIANCE QBOJMSTftNCES
Failure to sample, monitor
or report (routine reports,
EMRs)
Failure to sample, monitor
or report (one time
requirement)
Failure to notify (compliance
or ncncompliance with
schedule reQuirement)
Failure to sample, monitor,
report or notify
Failure to notify of
effluent limit violation
Failure to notify of
effluent limit violation
Failure to notify of
effluent limit violation
Minor sampling* monitoring
«a
• '"J
Minor sampling, monitoring
or reporting deficiencies
Major or gross sampling,
monitoring 01
deficiencies
Major or gross reporting
deficiencies
Reporting false information
Isolated or infrequent.
Jlated or infrequent.
or infrequent.
Permittee does not
respond to letters, does
not follow through on
verbal or written
agreement, or frequent
violation.
Known
damage results.
Isolated or infrequent.
No Known effects.
Frequent or continued
violation.
sol**y1 or infrequent.
Continuation.
Isolated or infrequent.
Any instance.
RANGE OF RESPONSE1
(See Definitions)
2Fhone call, written
letter of violation
(KV). Report to
be submitted
IniTi'ill ill <'1y i
Administrative
Order (AO) if no
response is received.
LOV. Reports to
be submitted
iimediately.
2Fhone call or LOV.
Reports to be sub-
mitted immediately.
AD or judicial
action if no response
is received. Request
for criminal investi-
gation.
AO or judicial.
action.
Phone call or LOV.
LOV or AD.
Rione call or IT
Correct lens to £«.
made on next submttal.
AO if continued.
LOVor AO.
Corrections to be
made on the next
AO or judicial
action.
Judicial action.
Request for or*
investigation.
YZZ
-------
PEPMTT COMPLIANCE SCHEDULES (Construction phases or planning)3
NCNCOMPLIANCE
Missed Interim Date
Missed Interim Date
Missed Interim Date
Missed Final Date4
Missed Final Date4
Major or gross
deficiencies
Failure to install
monitoring equipment
CIRCUMSTANCES
Will not cause late final date
or other interim dates.
Will result.in other missed
.interim dates. Violation for
good or valid cause.
Will result in other missed
interim dates. Ho good or
valid cause.
Violation due to force
ma^eure (Strike, act of
God, etc.)
90 days or acre outstanding.
'Failure or refusal to comply
without good or valid cause.
Continuation.
.Continuation.
AO COMPLIANCE SCHEDULES (Construction phases, HCP or CCP)
Missed Deadline
Missed Deadline
Reporting False
lined in AD previously
issued (justifiable delay),
Contained in AO previously
issued and no justifiable
'reason for delay.
• Any instance.
RANGE OF RESPONSE
UOV.
OT-AO.
-LOV, Ao.-or .judicial
-action.
Contact permittee and
require documentation
of good or valid cause.
AO or
action.
AO or judicial action.
Request for criminal
investigation.
AO to begin monitoring
(using outside con-
tracts, if necessary)
and install equipment.
AD.5
Judicial -action.
Request for criminal
investigation.
•judicial action. Request
for criminal investiga-
tion.
12.:
-------
ENFORCEMENT RESPONSE
PERMIT EFFII1EOTLJMTTS
NCNCOMPLIANCE
Exceeding Final Limits
Exceeding Final Limits
Exceeding Final Limits
Exceeding Interim Limits
CIRCUMSTANCES
Infrequent or isolated
minor violation.
Infrequent or isolated
major violations of a
single effluent limit.
Frequent violations of
effluent limits.
Results in known environ-
il damage.
Exceeding Interim Limits Without Known damage.
Exceeding Interim Limits
(outside permittee's
control* e.g. force
najeure)
Exceeding Interim Limits
(outside permittee's
control^ e.g* * force
majeure)
Discharge without a
permit
Discharge without a
permit
Discharge without a
permit
No harmful effects
Known.
with substantial
environmental damage.
One time without known
environmental damage.
One time vftiich results
in envizcnnental damage
ffluJTj violation*
RANGE OF RESPONSE
LGV.
LOV, AD (judicial
action if environmental
harm resulted) .
AO or
action.
AO or judicial action.
AO or judicial
action.
AO.
or judicial action.
Continuing violation with
known environmental damage.
AO.
AO or judicial action.
Request for criminal
investigation.
Judicial action. Request
for criminal investigation.
ADMINISTRATIVE ORCER INTERIM LIMITS
Interim
Limits contained
in AD
Exceeding Interim
Limits contained
in AO
Infrequent violation.
A0.5
Frequent violations Judicial action.
within the control of the
permittee or environmental
-------
•.ENFORCEMENT RESPONSE
STfrTfc/ERft. COMPLIANCE IKSPECTICK
NONOCMPLIANCE aROJMSTftNCES
Minor violation of
analytical procedures
Major violation of
analytical procedures
Major violation of
analytical procedures
Minor violation of
permit condition
Minor violation of
permLt
Major violation of
permit
Non-subnn.ttal of
CNR/Oft data
Non-subraittal of
DMR/QA data
USEPS
Non-sutPdttal of JMR
rtHT DBSTififli-C ^fiDOBTfcfl
*•* A^il*1rnL*-1-*' *^l - 1 "^
Violation of general,
categorical, or local
limits
Violation of general,
categorical, or local
limits
Violation of categorical
standards
violation or
pass-through
Any instance.
No evidence of intent.
Evidence of negligence
or intent.
No evidence of negligence
or intent.
Evidence of negligence
or intent.
Evidence of negligent
or intent*
violation*
Continued violation.
VKb'i'KLAIMEHT
Late.
Infrequent.
Consistent violations.
No BMR or treatment
installed.
Any
is ion.
RANGE OF
UN.
I£V or'AO.
AO or "judicial
.-action (pcesibi<
criminal action).
LOV. Immediate
rtion required.
AD or judicial
action
criminal action).
AD or judicial
action (possible
-criminal action).
UJV or AD.
Judicial action.
I£V or AO.
or AD.
AD or
AD
action.
action.
Judicial action.
Request for cruninal
investigation.
\'-'.-•
-------
ENFORCEMENT RESPONSE
PRETREATMENT (CONTINUED)
MUNICIPALS (POTW3)
NONCOMPLIANCE CIRCUMSTANCES RANGE OF RESPONSE
Non-submittal of First occurrence. LOV.
annual reports
Municipal non- First tine or infrequent. LOV or AO.
enforcement of
general, local or
categorical limits
licipal non- Continued non- AO or Judicial Action
implementation implementation. (Judicial Action may
of pretreatnent be preceded by notice
program (e.g, failure to POTW under Section
to enforce any limits, 309(f)).
reporting require-
ments, etc.)
Failure to submit First occurrence. AO.
an approvable
pretreatnent v.
Failure to submit Continued. Judicial action.
an approvable
pretreatnent
program.
LEVELS OP RESPONSE^
There are three levels of response to all violations. For any violation the
administering agency must review the violation and determine the appropriate
response. For some violations, the response may be no action necessary at this
time. The informal enforcement response can be an inspection, phone call, a
violation letter, or a Federal Notice of Violation to the permittee with a copy
to the administering State agency. The violation letter can be limited to a
notification of the violation or to requiring certain steps to be taken within
specific time frames. The formal enforcement response must be one of the
following:
1. An Administrative Order or State equivalent action; or
2. A judicial referral to the state Attorney General or to the Department of
Justice.
-------
FOOTNOTES
3-The Notice of Violation (NOV) is not specifically identified as a possible
response in the* "Range of. Response" column. In .fact, the use of an NOV by EPA
as an initial response is an appropriate ontion where the violation is in a
State with an approved NPDES program. However, it must b® recognized that an
NOV does not qualify as a formal enforcement action.
2Phone cai Is should be noted i n the record and be followed UP with warning
letters if reports are not received within the specified time frame,
3If the conoliance schedule is established by a -consent decree or other
iudicial order, the violation should be brought to the -attention of the program
manager and legal counsel to determine whether the court should be notified.
The permitting authority may not excuse or allow a violation of a consent
decree or other court order without court approval.
*The enforcement response chosen for Missed Final '.Dates oust be consistent
with the provisions of the National Municipal Policy.
I
Clean Water Act does not authorize the issuance of an AO for a violation
of a previously issued AO. Any successive AO issued must be basod upon the
underlying violations of the Act contained in the previous AO and/or upon
subsequent violations of the Act*
&Ihe amendments to the Clean Water Act proposed by both the House of Representatives
and the Senate would qive EPA authority to impose administrative penalties. If
the final version includes this authority* the ERG will have to be modified to
establish criteria for determining which violations should be addressed through
a penalty action.
-------
NPDBS VIOLATION SUMMARY
NPDES No.
ATTACHMENT C
[ ] Municipal
1 Major IJ Non-Mun.
1 Minor ( 1 Federal
[ j State
NAME & LOCATION
DATR OP
VIOLATION TYPE Of VIOLATION
MO/DA/YR
AGENCY RESPONSES
DAFB OP
RBSKJNSES
MO/DA/YR
PERSON(S)
INITIATING
RESPONSE
DUE DATE
MO/DA/YR
STATUS
REVIEWER
NAME
AND TITLE
REMARKS
(Additional information may be entered across the sheet
citations of permit violations—to meet local ancillary tracking
requirements. Any other pertinent infornuLion, such as the
rationale Cor unusual responses, may also be documented in this
manner.)
-------
-APPENDIX I
LIST OF GUIDANCE AND SUPPORTING DOCUMENTS
1. National Guidance for Oversight of NPDES Programs, PY 1986
(June 23, 1985).
2. Office of Water FY 1986-1987 Operating .Guidance *and Strategic
Planning and Management System (February, .1985).
3. NPDES Inspection Strategy and .^Guidance for "Preparing Annual
State/EPA Compliance Inspection Plans (April 16, J&S5).
4. National Municipal Policy (January 23, 1984).
5. Regional and Stat° Guidance on the National Municipal Policy
(April 17, 1984).
6. Municipal Enforcement Guidance (Issued by Office of Enforcement
and Compliance Monitoring; October, 1984).
7. Recommended Format for Clean Water. Act Section .309 Administrative
Orders (July 30, 1985)
8. Pretreatment Program Guidance to POTWs 'for Enforcement of
Industrial Categorical Standards (November 5, 1984)
9. NPDES Civil Penalty Policy (February IX, 1986).
10. Permit Compliance System Policy (October 31, 1985).
-------
APPENDIX II
ABBREVIATIONS FREQUENTLY USED
AAW - Assistant Administrator for Water
ADA - Administering Agency (EPA and NPDES States)
ADP - Automated Data Processing
AO - Administrative Order
AT - Advanced Treatment •
AWT - Advanced Waste Treatment
BAT - Best Available Technology
BCT - Best Conventional Technology
BCCT - Best Conventional Control Technology
BIO - Compliance Biomonitoring Inspection (see CBI)
BODs - 5 Day Biochemical Oxygen Demand
BEJ - Best Professional Judgment
BPT - Best Practicable Treatment
CBI - Confidential Business Information or Compliance Biomonitoring
Inspection (See BIO)
CEI - Compliance evaluation Inspection
CFR - Code of Federal Regulations
CG - Construction Grant
CS - Construction Schedule
CSI - Compliance Sampling Inspection
CWA - Clean Water Act
DI (DIA or DIAG) - Diagnostic Inspection
DNR - Discharge Monitoring Report
DOJ - Department of Justice (US)
ELG * Effluent limitation Guidelines
EMS - Enforcement Management System
ERG - Enforcement Response Guide
-------
-'2 -
F - Final Limits
FEL - Final Effluent Limits
FFCA - Federal Facility Compliance Agreement
FR - Federal Register
GREAT - General Record of Enforcement Actions ITaken
IAG - Interagency Agreement
ZC - In Compliance
ZEL (ZNT) - Interim Effluent Limits
IL - Interim Limits
LOV - Letter of Violation
HOA - Memorandum of Agreement
NC - Noncompliance
NCR - Noncompliance Report
HEZC - National Enforcement Investigations Center
NOV - Notice of Violation
NPDES - National Pollutant Discharge Elimination System
OECM * Office of Enforcement and Compliance Monitoring
OGC - Office of General Counsel
»
OIG - Office of.Inspector General
O&M - Operations;, and Maintenance/Management
OW - Office of Water
OWAS (OWEG) - Guide to the Office of Water Accountability System
and Mid-Year Evaluations
OWEP - Office of Water Enforcement and Permits
ORD - Office of Research and Development
PAI - Performance Audit Inspection
PCS - Permit Compliance System
POTW - Publicly Owned Treatment Works
POR - Permit Quality Review
-------
- 3 -
PUS - Public Hater Systems
QA - Quality Assurance
QNCR - Quarterly Noncompliance Report
RE - Resolved
RI - Reconnaisance Inspection
SCO - Show Cause Order
SEA - State-EPA Agreement or State Enforcement Agreement
SNAP - Significant Noncompliance Action Program
SNC - Significant Noncompliance
SPCC - Spill Prevention Control and Countermeasures
SPMS - Strategic Planning and Management System
TOX (TOX SAMP) - Toxics Sampling Inspection (see XSI)
*
TPP - Temporary Pollution Permit
USEPA - United States Environmental Protection Agency
VRAC - Violation Review Action Criteria .
WENDB - Mater Enforcement National Data Base
WQM - water Quality Management
WWTF - Wastewater Treatment Facility
WWTP - Wastewater Treatment Plant
XSI - Toxics Sampling Inspection (see TOX)
$ - Facility Contructed with P.L. 92-500 Grant Funds
-------
.Pef iirrtions for -the !Xn'f or cement-Management -"System*
* i
1. Actionable: A violation by the NPDES permittee or other facility
subject to regulation under the Clean Water Act (CWA), and/or
the permit, which gives rise to a possible enforcement action
by the NPDES-State, USEPA, and/or any.person or entity haviitg
standing, whether or not such action is taken.
2. Administrative Order (AO): A document issued-by EPA under
Section 309(a)(3) of the CWA which contains findings of fact
determined through a unilateral, administrative process (without
required notice or opportunity for hearing) and which demands
that the permittee achieve compliance with the CWA (SS301, 302,
306, 308, 318, 405 or with conditions of a permit which imple-
ments one of those sections, or an equivalent State action
issued under State authority. The document contains an order
to cease the violation immediately, or a specific timetable for
compliance.
3. Dischargers (Municipal, Industrial, Major and Minor):
(A) Municipal Major: A municipal wastewater treatment facility
which ^discharges -a flow .of cone -million ^gallons --or more
per day, or which serves a population of ten thousand
or more* Any municipal facility not meeting this
definition is classified as minor.
(B) Industrial Major: An industrial discharger's permit is
analyzed for specific discharge characteristics which
are tied to a weighted point"total classiflection
-------
. 2 -
system. Points are assigned on the basis of the follow
five effluent parameters: toxic pollutant potential;
flow/wastewater type; conventional pollutant load;
*
public health impact; and water quality factors. The
point total is added* If the total is eighty points or
higher the discharger is classified as major. Those
dischargers which have less than eighty points are
classified as minor*
(C) Discretionary Majors: USEPA Regions are permitted to
assess up to five hundred points at their discretion,
thereby placing some dischargers in the major classifi-
cation which would not have otherwise been there. This
provides the Regions the opportunity to classify certai
dischargers with local problems as majors, even though
they would not be under a fixed* inflexible national
scheme. Each Region's discretion is limited to 20
discretionary additions plus five percent of their
total major permits.
4. Formal Enforcement Action: An action that requires actions to
achieve compliance, specifies a timetable, contains consequences
for noncompliance that are independently enforceable without
having to prove the original violation, and subjects the person
to adverse legal consequences for noncompliance.
5. Letter of Violation (LOV): A warning letter issued by either an
NPDES State or USEPA to a permittee under the NPDES Program
informing the permittee that it is in violation of the CWA,
-------
. 3 -
implement!no regulations, and/or the permit, and which indicates
the oossibility of escalated enforcement action if the violation
is not corrected in a timely manner.
6. 'Notice of Violation (NOV): A formally-written document issued
by US EPA under $309{a)(l) to-an approved State with a copy to
the permittee informing them of the-permitteets violation.of
a State-issued NPDES permit or a State-issued $494 permit. The
NOV specifically describes the violation and describes the
action required by the State to avoid further action by USEPA.
1:-
-------
-------
1.5.
General Enforcement Policy Compendium", updated December, 1988. Table of
ontents and Topical Index Only. Contains policies numbered GM-1 thru
M-74. Copies of individual policies may be obtained from Legal
nforcement Policy Branch, Office of Enforcement Policy, OE (LE-130-A).
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. OC 20MO
3 MAR 1983
orriCK of
KNirOKeKMCMT COUMSCi
MEMORANDUM
SUBJECT: General Enforcement Policy Compendium *
Transmittal Memo
PROM: Robert M. Perry
Associate Admininstrator and GeneatfT Counsel
TO: Associate Administrator for Policy
and Resource Management
Assistant Administrators
Regional Administrators
Attached is the first edition of the General Enforcement
Policy Compendium. This transmittal includes a chronological
table of contents and a topical index of the currently effective
general enforcement policies and guidance documents. Copies of
the documents are tabbed and arranged in chronological order.
All of the AAs have had the opportunity to review a draft of
this Compendium and all have concurred in this edition. Therefore,
this Compendium contains all general enforcement policies and
guidance documents, except those stated as part of a promulgated
Agency regulation. Documents in effect concerning the daily opera-
tion of the criminal enforcement program have not been included in
this Compendium but are available to necessary Agency personnel.
Subject to these exceptions this Compendium contains those enforce-
ment policies affecting all media which are in effect and which
should be followed by Agency personnel. Any other general enforce-
ment policies (as distinguished from media-specific enforcement
policies) are hereby revoked. Media-specific enforcement policy
compendiums will be issued as sections of the forthcoming Enforcement/
Compliance Guidance Manuals.
As new policies are developed, OLEC will transmit them
to you for inclusion in the Compendium and update the table of
contents and the index.
If you have any questions about matters contained in
this memorandum, please contact Janet Tungland at FTS-426-7503.
Attachment
cc: Regional Counsels
Associate Enforcement Counsels
-------
-------
TABLE OF CONTENTS - GENERAL ENFORCEMENT POLICY COMPENDIUM
•
TITLE OF DATE OF
Visitor's Releases and Hold
Harmless Agreements as a Condition
to Entry to EPA Employees on
Industrial Facilities
Professional Obligations of
Government Attorneys
Memorandum of Understanding Between
the Department of Justice and the
Environmental Protection Agency
"Ex Parte" contacts in EPA
RulemaJcing
Conduct of Inspections After the
Barlow's Decision
Contacts with Defendants and
Potential Defendants in
Enforcement Litigation
•Ex Parte" Rules Covering Communica-
tions Which are the Subject of Formal
Adjudicator? Hearings
Quantico Guidelines for Participation
in Grand Jury Investigations
Agency Guidelines for Participation
in Grand Jury Investigations
Reorganization of the Office of
Regional Counsel (includes
Administrator's Memorandum of
September 15, 1981)
Coordination of Policy Development
and Review
11/08/72
4/19/76
6/15/77
8/04/77
4/11/79
10/07/81
12/10/81
4/08/82
4/30/82
5/07/82
Deleted
11/88
GM - 1
GM -
GM -
GM -
2
3
4
GM - 7
G«
GM
GM
8
9
10
GM - 11
-------
TABLE OF CONTENTS
PAGE 2
TITLE OF
DOCUMSMT
General Operating Procedures for
EPA's Civil Enforcement Program
Case Referrals for Civil Litigation
Criminal Enforcement Priorities
for the Environmental Protection
Agency
Functions and General Operating
Procedures for the criminal
Enforcement Program
Regional Counsel Reporting
Relationship
Guidance for Drafting Judicial
Consent Decrees
Implementation of Direct Referrals
for civil Cases
Consent Decree Tracking Guidance
Guidance on Evidence Audit of
Case Files
Policy on Civil penalties
A Framework for Statute-Specific
Approaches to Penalty Assessments
Guidance Concerning Compliance with
the JencJcs Act
Working Principles L -erlying EFA's
National Compliance/Enforcement
Programs
Federal Facilities Compliance
(Previous version dated 1/4/84)
DATS OF
7/06/82
r
9/07/82
10/12/82
1/07/85
- 12
- 13
14
GH *
GM - 15
8/03/83
10/19/83
11/28/83
12/16 J3
12/30/83
2/16/84
2/16/84
11/21/83
11/22/83
GM -
OH-
GM -
GM -
GM -
GM -
GM -
GM -
GM -
16
17
18
19
20
21
22
23
24
11/08/88
GM - 23
-------
TABLE OF CONTENTS
PAGE 3
TITLE OF
DATE OF
Headquarters Review and Tracking
of Civil Referrals
Guidelines for Enforcing Federal
District Court Orders
Liability of Corporate Shareholders
and Successor corporations for
Abandoned Sites Under CERCLA
Guidance on counting and Crediting
Civil Judicial Referrals
Policy and Procedures on Parallel
Proceedings at the Environmental
Protection Agency
Guidance for Implementing EPA's *
Contractor Listing Authority
Implementation of Mandatory
Contractor Listing
Guidance for Calculating the
Economic Benefit of Noncompliance
for a Civil Penalty Assessment
Policy Against "No Action*
Assurances
Implementing Nationally Managed or
Coordinated Enforcement Actions:
Addendum to Policy Framework for
State/EPA Enforcement Agreements
The Use of Administrative Discovery
Devices in the Development of Cases
Assigned to the Office of Criminal
Investigations
The Role of EPA Supervisors
During Parallel Proceedings
DtjCliMrWi
3/08/84
4/18/84
6/13/84
6/15/84
1/23/84
7/18/84
8/08/84
11/05/84
11/16/84
1/04/85
GM * 2fi
GM - 27
GM - 28
GM - 29
GM - 30
«-31
GM - 32
GM - 33
GM - 34
GM - 35
2/16/84
3/12/85
GM - 36
GM - 37
-------
TABLE OF CONTESTS
PAGE 4
TITLE OF
Remittance of Fines and Civil
Penalties
Enforcement Settlement
Negotiations
Revised Regional Referral
Package Cover Letter and
Data Sheet
Implementing the State/
Federal Partnership in
Enforcement: State/Federal
Enforcement '•Agreements"
(Previous version dated 6/26/84)
Form of Settlement of Civil
Judicial cases
Enforcement Document Release
'Guidelines
Settlement of Enforcement
Actions Using Alternative
Dispute Resolution Techniques
Division of Penalties with
State and Local Governments
Policy on Publicizing Enforce-
ment Activities
Addendum
A Summary of OECM's Role in the
Agency's Regulatory Review
Process
Model Litigation Report Outline
and Guidance
Implementation of Guidance on
Parallel Proceedings
DATE OF
DOCUMENT
4/1S/8S
5/22/85
5/30/85
8/25/86
GM - 39
GM - 41
7/24/84
9/16/83
10/02/85
11/21/85
11/21/85
8/04/87
1/27/86
1/30/86
2/03/86
GM -
GM -
GM -
GM -
GM -
GM -
GM -
GM -
42
43
44
45
46
47
48
49
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TABLE OF CONTENTS
PAGE 5
TITLE OF
DATE OF
Expanded civil Judicial Referral
Procedures '
Guidance on Calculating After Tax
Net Present Value of Alternative
Payments
EPA Policy on the Inclusion of
Environmental Auditing Provisions
in Enforcement Settlements
Guidance on Implementing the
Discretionary Contractor Listing
Program
Referral Letters for Forwarding
Judicial Referrals and Consent
Decrees to the Department of Justice
Media Relations on Matters Pertaining
to EPA's criminal Enforcement Program
Guidance on Determining a Violation's
Ability to Pay a Civil Penalty
Guidance for the FY 1989 State/EPA
Enforcement Agreements Process
(Previous version dated 4/31/87)
Issuance of Enforcement Considerations
for Drafting and Reviewing Regulations
and Guidelines for Developing New or
Revised Compliance and Enforcement
Strategies
The Regulatory Development Process:
Change in Steering Committee Emphasis
and OECM implementation
Procedures and Responsibilities for
Updating and Maintaining the Enforce-
ment Docket
8/28/86
10/28/86
11/14/86
11/26/86
11/12/86
12/12/86
12/16/86
6/20/88
8/1S/8S
2/06/87
3/10/87
TAB
GM - 50
GM - 51
GM - 52
GM - 53
GM - 54
GM - 55
GM - 56
GM - 57
GM - 58
GM - 59
GM - 60
Enforcement Docket Maintenance
4/08/88
GM - 61
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TABLE Of CONTENTS
PAGE 6
TITLE OF
DATE OF
Final Guidance on Use of Alternative 8/14/87
Dispute Resolution Techniques in
Enforcement Actions
Policy on Invoking Section 9 of the 8/20/87
EPA/DOJ Memorandum of Understanding
Processing of consent Decrees
Processing of Indirect Referrals
Assertion of the Deliberative Process
Privilege (2 documents):
A. Guidance for the Assertion of
Deliverative process Privilege
8. Change in Review process for
Concurrence in Litigation
Procedures for Assessing Stipulated
Penalties
Procedures for Modifying Judicial
Decrees
Expansion of Direct Referral of Cases
to the Department of Justice
Delegation of Concurrence and Signa- 1/14/88
ture of Authority
Case Management Plans 3/11/88
Assuring Timely Filing and Prosecu- 4/08/88
tion of Civil Judicial Actions
•
Process for Conducting Pre-Referral 4/13/88
Settlement Negotiations on Civil
Judicial Enforcement cases
Guidance on certification of 6/25/88
Compliance with Enforcement
Agreements
- 62
- 63
9/14/87
9/29/87
10/30/84
9/30/87
1/11/88
1/11/88
1/14/88
GM - 64
GM - 65
GM - 66
GM - 67
GM - 68
GM - 69
GM - 70
GM
GM
71
72
GM - 73
GM - 74
-------
imovr. i M m^
~
Memorandum of understanding Between the Department
of Justice and the Environmental Protection Agency ..... GM - 3
Quantico Guidelines for Enforcement Litigation ......... GM - a
Reorganization of the Office of Regional Counsel ....... GM - 10
Coordination of Policy Development and Review .......... GM - 11
(Deleted u/88)
General Operating Procedures for EPA's Civil
Enforcement Program. .................................... GM ~ 12
Case Referrals for Civil Litigation .................... GM - 13
Regional Counsel Reporting Relationship .............. . . GM - 16
Policy on Civil Penalties .............................. GM - 21
A Framework for Statute-Specific
Approaches to Penalty Assessments ...................... GM - 22
working Principles Underlying EPA's
National Ccnpliance/Enf orcement Programs ............... GM - 24
Federal Facilities Compliance Strategy ................. GM - 25
Liability of corporate Shareholders
and Successor Corporations for Abandoned
Sites tttier CEROA ..................................... GM - 28
Implementation of Mandatory contractor
Listing ........................................... ..... GM - 31
Guidance for Calculating the Economic
Benefit of Ndnconpliance for a Civil
Penalty Assessment ..................................... GM - 33
Nationally Managed or Coordinated
Enforcement Actions: Addendum to Policy Framework
for State/EPA Enforcement Agreements ................... GM - 35
Remittance of Fines and Civil Penalties ................ GM - 38
Implementing the State/Tederal Partnership in
Enforcement: State/Federal Enforcement "Agreements" ... GM - 41
-------
TOPICAL INDEX
PAGE 2
Enforcement Document Release Guidelines GM - 43
Policy on Publicizing Enforcement
Activities GM - 46
A Summary of OECM's Role in the Agency's
Regulatory Review Process GM - 47
Guidance on Calculating After Tax Net
Present Value of Alternative Payments GM - 51
Guidance on Implementing the Discretionary
Contractor Listing Program GM - 53
Media Relations on Matters Pertaining to EFA's
Criminal Enforcement Program GM - 55
Guidance on Determining a Violator's Ability
to Pay a Civil Penalty GM - 56
Guidance for the FY 1983 State/EPA Enforcement
Agreements Process GM - 57
Issuance of Enforcement Consideration for
Drafting and Reviewing Regulations and
Guidelines for Developing New or Revised
Compliance and Enforcement Strategies GM - 58
The Regulatory Development Process: Charge in
Steering Committee Emphasis and OECM Implementa-
tion GM - 59
Procedures and Responsibilities for Updating
and Maintaining the Enforcement Docket GM - 60
Enforcement Docket Maintenance GM - 61
Procedures for Assessing Stipulated Penalties GM - 67
Delegation of Concurrence and Signature of
Authority GM - 70
Attorney Conduct
Professional Obligations of Government Attorneys GM - 2
-------
TOPICAL INDEX
PAGE 3
• —
Case Development/Litigation
Memorandum of Understanding Between the Department
of Justice and the Environmental Protection Agency GM - 3
Quantico Guidelines for Enforcement Litigation GM - 8
Case Referrals for Civil Litigation GM - 14
Guidance for Drafting Judicial Consent Decrees- GM - 17
Implementation of Direct Referrals for Civil Cases GM - 18
Guidance on Evidence Audit of Case Files GM - 20
Guidelines for Enforcing Federal District
Court Orders GM - 27
Guidance on Counting and Crediting
Civil Judicial Referrals GM - 29
Policy Against "No" Action* Assurances GM - 34
Revised Regional Referral Package Cover
Letter and Data Sheet GM - 40
Form of Settlement of Civil Judicial Cases GM - 42
s
Division of Penalties with State and
Local Governments GM - 45
Model Litigation Report Outline Guidance GM - 48
Expanded Civil Judicial Referral
Procedures GM - 54
Civil Judicial Referral
Procedures GM - 50
Referral Letters for Forwarding Judicial
Referrals and Consent Decrees to the Department
of Justice GM - 54
Final Guidance on Use of Alternative Dispute
Resolution Techniques in Enforcement Actions GM - 62
Policy on Invoking Section 9 of the EPA/DOJ
Memorandum of Understanding GM - 63
-------
TOPICAL INDEX
PAGE 4
* * ,
Processing of Consent Decrees GM - 64
Processing of Indirect Referrals GM - 65
Assertion of the Deliberative Process Privilege
(2 document:)
A. Guidance for the Assertion of Deli-
berative Process Privilege GM - 66
B. Change in Review Process for Concur-
rence in'Litigation
Procedures for Modifying Judicial Decrees GM - 68
Expansion of Direct Referral of cases to
the Department of Justice GM - 69
Case Management Plans GM - 71
Assuring Timely Filing and Prosecution of
Civil Judicial Actions GM - 72
Process for Conducting Pre-Referral Settlement
Negotiations on Civil Judicial Enforcement Cases GM - 73
Guidance on Certification of Compliance with
Enforcement Agreements GM - 74
inspections
Visitor's Releases and Hold Harmless Agreements as a
Condition to Entry to EPA Employees on Industrial
Facilities GM - 1
Conduct of Inspections After the Barlow's Decision GM - 5
Rules Regarding Outside Contacts
"Ex Parte" Contacts in EPA RulemaJcing GM - 4
Contacts With Defendants and Potential Defendants
Enforcement Litigation GM - 6
"Ex Parts" Rules Covering communications On Issues
Which are the Subject of Formal Adjudicator
Hearings GM - 7
150
-------
TOPICAL INDEX
PAGE S
Tracking and Monitoring
Consent Decree Tracking Guidance ....................... GM - 19
Headquarters Review and Tracking of
Civil Referrals .......................... . ............. GM - 26
and Settlement
Guidance for Drafting Judicial Consent Decrees ......... GM - 17
Enforcement Settlement Negotiations ................. ... GM - 39
Settlement of Enforcement Actions Using
Alternative Dispute Resolution Techniques .............. GM - 44
GENERAL ^NFQI^fTi'MRMT POLICY - CRIMINAL
Criminal Enforcement Priorities for the Environmental
Protection Agency ............................... ....... GM - 14
Functions and General Operating Procedures for the
Criminal Enforcement Program ........................... GM - IS
Guidance Concerning Compliance with the
JencJcs Act ...................................... . ...... GM - 23
Policy and Procedures on Parallel Proceedings
at the Environmental Protection Agency ................. GM - 30
The Role of EPA Supervisors During Parallel
Proceedings ............................................ GM - 37
Implementation of Guidance on Parallel
Proceedings ............................................ GM - 49
nvest igat iona
Agency guidelines for Participation in Grand Jury
Investigations ......................................... GM - 9
The Use of Administrative Discovery Devices in the
Development of Cases Assigned to the Office of
Criminal Investigations ................................ GM - 36
-------
-------
1.7,
"GUIDANCE FOR OVERSIGHT OF NPDES PROGRAMS", dated May 1987
-------
-------
NATIONAL GUIDANCE
FOR
OVERSIGHT jF NPOES PROGRAMS
•lay 1987
BACKGROUND
The Clean Water \ct (CWA) authorizes EPA and approved States
to administer the National Pollutant Discharge Elimination System
(NPDES) Program, which is t.ie basic regulatory mechanism for ensur-
ing that dischargers meet the requirements of the CWA. Currently
about tnree quarters of the States are approved to administer the
NPDES program, more than half of which also are approved to admini:
ter the pretreatment program. EPA retains the lead responsibility
in the balance of the States, but shares many of the implementatiot
functions of the NPDES and pretreatment programs in a partnership
arrangement with State agencies.
EPA has continuing overall responsibility for implementation
or oversight of the NPDES program in all States—approved or not
approved—in order to promote the acnievement of national program
goals and objectives, to ensure adherence to Federal and State
statutory and regulatory requirements implementing the CWA, and to
•naintain reasonable national consistency. This guidance provides «
set of criteria for evaluating and overseeing NPDES programs, the
criteria also provide a basis for Regions and States to negotiate
annual agreements and/or work plan's. The document:
* Defines the major elements of a sound NPDES program;
* Outlines high priority achievements for NPDES and pretreat-
ment programs?
* Clarifies how the Regions and States should translate spec
fie program goals and performance expectations into annual
grant agreements and/or work plans; and
* Defines the respective roles and responsibilities of the
EPA Regions and States in carrying out the NPDES program,
as well as areas where there is a need for further
of roles in the indiviiual State agreements.
-------
PURPOSE AND SCO?£
r-.is jaidance is a pr-^raTa 3. ».»?.: 1>:.n*nt for ^se
conjunction with tie Agency's "Rev:se1 Policy Framework So a
releral S.iforcemene Agreements" (issued August 25, L936K Tv
"Policy Framework" covers bot'i t i-s .iroce-ss and tae substance >?
Regional/State agreements, and, jnless otherwise soecifisl i« t
document, the national polic/ will aool/.
This juidaice estaolishes cr._-?ria for tie ^?D£S Trc
incljding permi*. issuance and reissuance, co-nnliance monitoring,
enforcement, and oretreat-ient . I", is intended t3 be ase<1 is i
framework, with t^.e Regions and tne states supolyinj "• i » '»-•»!'.-,
for their individual agreements and/or work olans aased ^n current
Federal regulations, national •>•>'„ . • 11' ;i '^ne* •'oc^-nents , and
State priorities. In reviewing, and, where necessary, updating
oversight agreements, tH.e Regions and States should also use the
Annual Agency Operating Guidance, the Annual Strategic P_lann__i_n_g
and Management System, and the Annual Off ice of Water Evaluation
Guide, which set forth national priorities and performance expecta
tions. To the extent possible, all requirements Cor plans and
strategies cited in this guidance should be consolidated into
existing work plans and/or State-EPA agreements.
Fully-f unction in-j i»"»~^ ir>jr-torovr»'1 nretreatment orogr^
requirements and new requirements for controlling toxic and ha* . •»-
waste in wastewat^r li^charges and in sludge. Tn^ jiuttnce also
places priority on rapid response to instances of significant
noncompl lance, especi»ll/ ty i-ij >r U ^chargers. As resources
allow, administering agencies1 should also address minor discharger
of concern and other instances of noncompl lance. In the longer-ter
the c)n:-»;»t* in this guidance should be ph-is-l-i i *or the full
range of sources and violations. Finally, this guidance addresses
implementation of approved local pretreatment programs, and enforce-
ment response to violations by POTVls of pretreatment requirements in
SPDCS permits that appear on the Quarterly Noncompl lance Report
(QNCR), as well as to violations by industrial users.
ELEMENTS AND CRITERIA FOR THE NPDES OVERSIGHT PROGRAM
There are three operational «*len.l
oversight program: permitting, compliance monitoring, and «-n
response. There is U^o a need to ensure the ongoing integrit/
State NPDES and oretreatment or>}r3"is, 53 wi»ll as their abilit/
4«-iieve the goals and objectives oc the CWA.
The term "administering age no/" refers tj EPA RejLja-5 in
approved States tnat administer tne NPOES/pretreatment o
-------
The Agency has developed a general set of oversight criteria
for all compliance and enforcement programs.2 This program-specific
Joc-ne^t provides guidance on how to use tnese criteria, as well as
additional criteria related to pernit issuance and tie pretreatment
program, to evaluate and oversee the operational elements of the
NPDES program and to negotiate individual agreements and/or work
plans with each State. Such agreements should take into account t*e
unique circ-nstances, legal authorities and resources of each State
MPDES program.
I. Permitting
The CWA ($402) calls for EPA or approved States to issue
permits for the discharge of any pollutant or combination of pollu-
tants. These permits are enforceable documents that contain specifi
discharge Imitations, as «*ell as conditions on data and information
collection, reporting, and other requirements that the administering
agency deems appropriate. The overall integrity of the NPDES
program is, therefore, inextricably linked to the quality and
timeliness of the permits that are issued by EPA and the NPDES
States.
Evaluation and oversight of permit programs should be based on
the following criteria:
»
* Clear identificationof the regulated community as evidenced
by theexistence anduse of;
Established procedures for maintaining a complete,
accurate, and up-to-date automated data system that
includes all sources that are coveredby or, have^applied
for NPDESpermits; The administering agency should
maintain a current inventory of all permit holders and
applicants. States should enter current permit data
into the Permit Compliance System (PCS, the automated
NPDES data base) in a timely manner consistent with the
procedures in the Enforcement Management System (EMS).
Where a State is not a direct user of PCS and does not
have an automated system that is compatible with PCS,
it should supply the data to the Region in a form that
facilitates EPA's entry of the data into PCS.3 The
administering agency should also maintain up-to-date
files on individual permittees, and should have a proces<
for identifying dischargers that are required to apply
for but have not applied for permits and for following
through as necessary in such cases.
Permit data that are complete, accurate and up-to-date;
The Region is responsible for conducting periodic
2. See "Revised Policy Framework for State/EPA Enforcement
Agreements," Augu-st 25, 1986.
3. wherever data entry to and/or use of PCS is mentioned in this
document, it is expected that, where a State is not a direct
user of PCS and does not have an automated system that is
compatible with PCS, it should supply the data to the Region in
a form that facilitates EPA's entry of the data into PCS. j
-------
audits co verify t-at eac*. approved State is -laintan-
^•"5 current aer*".1: files <.*>.cl-,di".g an adequate aci.-uni
trati/e rec~r2) ar.d jara n ?CS consistent ^ith
prescrioed procedures; trie Region should also co t
perioaic audits in cases •'here an unapproved State s
writing draft pemits in a partnership arrangement *iti
the Region.
* Develognent and tx—ely issuance 3? Kigh.rquality permits anc
pemit -npd_if i;at.i?_ns__as_revi j_e"ee.d sy . tre existence and use
of:
-- An up-to-date pern it strategy and issuance list by Stac
that guides permit issuance/modification consistent
with national priorities and assures t^at Backlogs c!o
not develop; It is tr.e responsibility of the adramis-
tering agency to develop a strategy and an annual perrai
issuance list of priority per-uts to De reissued/modi-
£ led/reopened during tie fiscal year (by name and type)
consistent *ith the National Surface water Toxics
Control Initiative, the Annual Operating Guidancei, and
State permitting priorities* The list may be modified
periodically to ensure that it reflects changing condi-
tions throughout the year. At the time the list is
developed, the Region and State should agree on proce-
dures for modifying the list, as well as the role of
EPA and tne State in the permitting process.
Permits that contain appropriate, clear andenfore; e
requirements? The administering agency has the re -
sibility to ensure that individual permits are consisten
with the requirements in the regulations (NPDCS, General
Pretreatment, State Water Quality Standards, secondary
treatment, effluent guideline, and sludge regulations),
as well as current national policy, and that permits
contain clear and enforceable provisions, where the
State is the administering agency, the Region should
identify the specific State permits it plans to reviev
prior to issuance/modification in accordance with
applicable Federal regulations, and should target those
specific types of priority permits that require early
coordination prior to draft permit issuance. The State
should submit copies of draft and final permits consis-
tent with the NPOES regulations (40 CFR $123), and the
Region should conduct periodic audits of permit quality.
Where EPA is the permit issuing authority, the Region
should coordinate with the State to assure timely
review and certification of permits in accordance with
the CWA (S401) ,
* Clear identification o€ PQTWs required to have approved
local pretreatment programs /and significant EUs vhere
-------
trere is no approved local program) as evidenced by th_e
-xistence ard use of;
Established procedures for "ia in caning complete, accura
and up-to-date data on a_l1 POTWs required to have
approved local gretreaf'ent programs; The agency
administering tne pretreat-ient program (i.e., aooroved
Scare or EPA Region) is resoonsiole for establishing
aai -naintaining a complete inventory of all POTWs
required to have approved local pretreat-nent programs
(previously approved and newly identified) consistent
with the Pretreat*nent Compliance Monitoring and Enforce
ment Guidance. Administering agencies should enter
required data into PCS in a timely manner consistent
with established procedures. The administering agency
should also maintain up-to-date files on individual
POTWs, and should have a rationale for adding/deleting
municipalities from the list of required local programs.
Finally/ the administering agency should have a plan for
completing and maintaining an inventory of all categori-
cal industrial users (lUs) and significant industrial
users (SIUs) where there is no approved program, as
resources allow.
Local pretreatment program data that are complete,
accurate and up-to-date; The Region is responsible for
conducting periodic file audits to verify that each
approved State is maintaining current files on POTWs
with pretreatment programs (including required reports,
inspection reports, audit findings, record of enforcement
actions taken, and documentation of assistance provided
to resolve problems), and entering data into PCS consis-
tent with prescribed procedures; the Region should also
conduct periodic audits in cases where an unapproved
State is working with the Region in a partnership
arrangement to carry out pretreatment program responsi-
bilities.
Approval of sound local pretreatment programs and program
modifications as evidenced by the existence and use of;
Current process for completing approval of newly identi-
fied pretreatment programs and for identifying/acting
on existing local programs that need adiustments/refme-
ments; The agency administering the pretreatment program
(i.e., approved States or EPA Regions) is responsible
for maintaining a process for reviewing/approving/dis-
approving newly required programs, as well as a process
for establishing priorities and taking action on program
modifications, as needed, consistent with national
policy, regulations and and guidance. The process for
reviewing existing local programs and for determining
tne need for ad just-nents/ref menents should emphasize
-------
fjftuer i-pro1/--:? seen tne sasiz co-.trol -ecianisms
a-i i-e operational/enforcement aspects of t-.e program
— Approved/modified local pretreattnent programs tl"a ayj
adequate control mechanisms, as wellas appropriat
mechanisms for rtonitoring compliance and carrying out
enforcement responsibilities ; me administering agencv
".as t~e responsioi1 it/ to ensure fat its procedures fc
program review/approval'modif.rati3r result in sound,
enforceanle local pretreatnent programs. Where a POTW
is newly identified, the procedures srould address tne
•nodif ication/reissuance of POTW permits to incorporate:
1) a schedule for local program develoonent, and 25 an
approved local program and related conditions, includin
requirements for i.molementat ion and reporting, where
POTWs are newly identified as requiring a local pretrea
ment program, the review and aooroval process should be
completed expeditious!/. As a general rule, the adminu
tering agency should *ork -ith the POTW to assist in
developing an approvable program submittal within one y*
of identification; the review and approval process shoul
be completed two to three months following submission.
Where existing programs need to be -nodified, the adminis
tering agency should establish priorities based on a
sound rationale, and should have a process for reviewing
local programs and leter-runing whether local programs
need to be adjusted/refined to incorporate: 1) new/
revised control mechanisms for significant industr
users (SIUs) and enforceable local limits based on
'headworks analysis and proper interpretation of categori
cal standards; 2) mechanisms to adequately monitor IU
effluent, to track and determine compliance rates for
SIUs; and 3) procedures for initiating appropriate
enforcement responses against lUs for noncompllance and
publishing Che names of significant violators. The
administering agency should conduct these comprehensive
reviews whenever a POTWs permit is reissued/modified,
and as needed.
II- Compliance Monitoring
The EPA Regions and NPDES States must maintain records and
develop procedures for conducting accurate and reliable review and
evaluation of permittee self-monitoring reports, as well as inspec-
tion of permittees. The administering agency should assume primary
responsibility for these activities. These activities are essential
to maintaining the overall integrity of the MPDES permit program,
and for identifying instances of noncompllance so that the adminis-
tering agency can initiate appropriate and tinely action as needed.
The administering agency should also have an established compliance
monitoring program that incorporates the requirements of the SPDES
regulations, as well as the appropriate ornciples and supporin-
attachments of che Enforcement Management System (EMS).
1(00
-------
Evaluation and oversight of ro-iplia^ce nonitorng programs
should oe oased or r-e fol.orf.~3 criteria:
* Timely receipt and review of accurate and complete self" ,
monitoring reports, and maintenance of complete a->d acc^r
records as evidenced by the existence and ..se of:
— Esta3l:.s*ed procedures a^.d t -•*& frames for review of
DMRs, and --intenance of :oioiete a~d accurate data;
The acnin. sring agency sr.ouid receive and review all
Discharge Monitoring Reports (DMRs) and POTW pretreat-e
program i-nplenentation reports for accuracy and complet
ness, and should assure that oermittees are complying
with their per-ut requirenents (using PCS, where possib
to automat A.call/ screen data). The administering
agency should enter all the Water Enforcement National
Data Base (WENDB) data for ma] or permittees (and a
lesser amount for minor permittees) into PCS in a
timely manner: DMR data should be entered within 30
days of receipt of the DMR. The administering agency
may also enter data into PCS for minor permittees* as
resources allow (see PCS Policy Statement for these
requirements). Response to nonreceipt or unacceptable
DMRs should be consistent with the time frames in the
regulation and the EMS; failure to submit or unacceptable
DMRs within 30 days of the required date are instances
of significant noncompliance for major permittees.
— Data that are accurate^ .complete and up-to-date; The
Region should verify that each SPDES State is exercising
its responsiDilit les properly through routine reviews
of a random sample of DMRa and PCS entries during
periodic audits of the State program.
* Maintenance of a reporting system that contains accurate,
up-to-date , access ible .in format ion on current compl lance
status:
— Established procedures and time frames for submit tal of
QNCRs and maintenance of data; The administering agency
must prepare and submit its Quarterly Noncompliance
Reports (QNCRs) consistent with the requirements and
time frames in the SPDES regulation and national guidance
To the extent possible, the administering agency should
prepare the QNCR automatically by using DMR data and
other data that are entered into PCS.
-- QNCRs and data systems that are accurate, complete,
up-to-date; The Region is responsible for verifying
the accuracy and completeness of both the QNCRs and c-te
data in PCS.
-------
Trnely conduct of appropriate 3*"* effect'., .-e ccnslia-^cs
.-S3ect,c"s 35 s/.ie-ced =/ t-e existence a~d ^se of:
— Established procedures witHi-. the annual alan f ^
conducting compliance i_ns_gec ticks';The administeri
agency should have estaoiisned procedures far cond«,ti
routine and special inspections as part of its annual
Co-ipi.ance Inspection ?la«. T'-e plan and procedures
sno^ld se consistent *ith fe -tost current E?\ Cctioiia
Inspect; or *anual a"i t^e *.POES Cq-.p I. ance I Aspect ion
Strategy and Guidance, and should contain ciear enter
for selecting candidates for tne appropriate -nix of
routine and special compliance inspections (including
pretreatnent and sludge inspections, as appropriate).
Tne procedures should also outline the basic requiremer
and ti-ne frar.es for completing reports on inspection
findings and for entering the data into PCS wherever
possible. The Region and State should agree in advance
to estaolish quarterly a list of facilities that are to
oe inspected (including joint and independent EPA and
State inspections), and to assess the status of the
annual plan at established intervals throughout the yea
The Region should also agree to provide prior notice to
the State before conducting joint or independent inspec
tions, and to supply the State with at least semi-annua
reports of its findings (-nid-year and end-of-year); the
State should De apprised of -najor proolems as soon as
they are discovered.
""* ^nsP
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Comprehensive, program for assuring the adequacy and
effectiveness of approved local programs; POTWs act as
the control autnonty for -nost local pretreat-nent
programs, and r.ave prinar/ responsioilicy for compl.anc
monitoring and enforcement activities . •* ^dnin is taring
agencies snould have procedures for carrying out a
/anety of periodic reviews iesi5ned to -sns-re tnac
POTWs "3/e adeq-ate local oro^rans tnat are oei^g fall-/
and effectively i~iolevented. Oversight snould include
orovisions for rev.ewng ?OTW reports, conducting
routine and special inspections, and conducting oeriodic
audits of control authorities.
Local pretreat-nent programs that are adequate and are
being fully and effectively implemented; To ensure
that control authorities maintain adequate local pro-
grams, and fully and effectively implement these pro-
grams, the administering agency should: 1) conduct
audits of each local program at least once in every 5
years (20 percent per year), including an evaluation of
whether local limits need to be revised and/or whether
categorical standards are being properly interpreted to
protect treatment works, prevent interference with
sludge disposal, and protect receiving water quality
(including toxic organics, hazardous waste, metals, and
conventional pollutants); 2) conduct, as part of regular
MPDES inspections, annual pretreatment inspections of
POTWs with approved local programs (except where an
audit has been performed in the same year), including a
sample of lUs in the POTW, to the extent that resources
allow; 3) review monitoring reports (consistent with
the procedures and timeframes in the Pretreatment Com-
pliance Monitoring and Enforcement Guidance), including
annual reports submitted by POTWs and semi-annual
reports submitted by categorical users in areas without
local programs, to: assess the adequacy of industrial
waste surveys, local legal authorities (including
interjurisdictional agreements) and local implementation
mechanisms (e.g. permits, contracts, and/or local limits);
and to ensure that control authorities are conducting
timely and appropriate review of required periodic
reports, and are monitoring and enforcing consistent
with their approved local programs. The administering
agency should also have a plan for inspecting significant
industrial users where there is no approved local
program, to the extent resources allow.
III. Enforcement Response
The CWA (S309) requires £?A or SPDES States to respond to
NPDES permit violations by initiating the appropriate enforcement
*?here States act as control authorities in lieu of local
programs, they will be held to the same standards of implemen-
tation as local authorities and Regions will pay special
attention to oversight of these programs.
\
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action(s): the administering agency srcuid assune prnary responsi
bil:t/ for t-.ese act .- -ties. £rf or^a-e^t response involves a
series of actions, scare*"? -»itn t-.e initial reaction to f.e ^ -»«t
fication of a violation ar3 ending with the dischargee's re. to
full compliance anc: close-out of the action. ? „ -
NPDES States should have compliance and enforcement procedure
that ace corsistent *ith the Enforcement *anageTient jv stem ,£MSK
Regions should follow tne arocedures estaoLisned in t-.at "systen.
These procedures incl-de screening a^i assessing the significance
of tr.e initial violation, translating compliance inforTation into
the appropriate enforcement response in a timely manner, and enter
ing instances o£ nonconpl lance into the permittee's per-nanent
record.
Evaluation and oversight of enforcement programs should oe
oased on the following criteria:
* Timely evaluation and appropriate initial response to
identified violations as evidenced oy the existence and
of;
- Established. ore-enforcement procedures that set forth
criteria for evaluation and appropriate initial respon-
to identified violations; The administering agency
Should have current pre-enforcement procedures that
are consistent rfith the principles in the EMS. The
procedures should include: a violations review process
and criteria for screening DMRs to determine the
significance of the violation; procedures and tint
frames for applying appropriate initial response
options to identified violations; and procedures and
time frames for maintaining a chronological summary of
all violations.
~~* Enforcement responses that are timely and appropriate;
The administering agency should: screen all DMRs from
permittees to determine the level and frequency of any
violation, and specifically evaluate instances of
non-compliance by major permittees and P.L. 92*500
minor permittees3 within an average of 30 days from
the identification of a violation; determine the
appropriate response; and document any action taken/
not taken (including the technical reason). The date
of identification of the violation is the point at
which the organization responsible for compliance/
enforcement learns of the violation; an appropriate
initial response is one that results in the violator
returning to compliance as expeditiously as possible.
The Region should verify the timeliness and appropriate-
ness of a State's DMR evaluation and its initial
responses through periodic audits.
5. Other iunor permittees should oe evaluated as resources per-u-..
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Timelyand appropriateenforcement response, follaw-ua
and escalation until compliance is_ obtained as evidenced
oy i^.e the •exiscerce a*d ^se_of;
-- Established enforcementresponse procedures tnat are
appropriate and ti-nely: Tie aJ-unxscering agency
should na/e current enforcement response procedures
tnat are consistent vith f-e- SMS, as *eil as an _p-to-
^ate strate^/ for addressing instances of significant
nonco»npliance consistent rfith national and State orior
ties. The procedures snould set forth: an analytical
process for determining tn« appropriate level of
action for specific categories of violations; procedure
for preparing and Tiaintaining accurate and complete
documentation tnat can be used in future formal enforce
lent actions; and tine frames for escalating enforcemen
responses where the noncompliance has not been resolved
The administering agency should also have an analytical
process for assessing penalties or equivalent sanctions
in appropriate cases.
— Enforcement actions (Administrative Orders andjudicial
actions) that are initiated in a timely fashion and
contain clear arnd enforceable requirements; The adminis-
tering agency should be able to demonstrate that its
enforcement procedures result in: appropriate initial
and follow-up enforcement actions that are applied in a
uniform, consistent and timely manner; formal enforcemen
actions (as defined by State agreements) that clearly
define what the permittee is expected to do by a reason-
able date certain; an assessment of a civil penalty (or
equivalent sanction) as part of all civil judicial
referrals, when appropriate, based on a consideration
of established factors** and in an amount appropriate
For States, the determination of a civil penalty amount (or
equivalent sanction) should be based on factors such as the
seriousness of the violation(s), any history of noncompliance,
any good faith effort to comply with applicable requirements,
the amount of economic benefit resulting from the violation,
the economic impact of the penalty on the violator, and such
other factors as justice may require; the seriousness of a set
of violations includes consideration of the harm or risk of
harm posed to health or the environment by the violations, the
amount by which effluent limits were exceeded, the violator's
efforts to correct the problem, and the duration of the viola-
tions. Regions are expected to follow the CWA Penalty Policy
in calculating penalties for EPA cases.
For States, examples of sanctions include: bans on new sewer
connections, bans on sewer usage, facility closure, and permit
revocation or suspension. In defining the appropriate use of
civil sanctions, the Region and State should consider whecner
the economic impact of the sanction is comparaole to a cash
penalty; specific actions qualifying as equivalent sanctions
should be defined in State/EPA enforcement agreements. Stac*/
EPA agreeements should also be used to deal with those special
circumstances in which the only formal enforcement action the
State can take is a judicial action.
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t:> t-e /islaticn; and compilation 3f co-npiete and
ace-rate permanent records t-.at can be used in f *• t^
formal enforcement actions. In the case of -laj >
permittees, by fie tine a permittee is identifie - <"
the QSC3 and determined to be in significant nonce.
pliance based on the definition provided in Guidance,
the administering agency is expected to have already
initiated enforcement action to achieve ccmpliance.
Prior to a serruttee aooearing on the suosequent 3MCR
for the sane instance of sig--ficant noncompliance, th*
pernittee should either be in compliance or the admini*
tering agency should have taken formal enforcement
action (generally within 60 days of the first QNCR) to
achieve final compliance.7 In the rare circumstances
where fornai enforcement action is not taken, tne admin
istering agency is expected to have a written record
that clearly justifies why the alternative action {i.e.
informal enforcement action or permit modification) was
more appropriate. Audits will b* used to verify the
timeliness and appropriateness or an administering
agency's enforcement actions, as well as its consistent
application of penalties/sanctions.
Appropriate involvement of Regional Counsel/State
Attorneys General (or other appropriate government
legal staff) tp ensure legal support for national
enforcement riorities as evidenced b the existence
and use of;
-- Established procedures for routine coordination and
notification of proposed enforcement actions, as
well as general time frames from case referral to
filing; The administering agency is responsible for
ensuring that the Regional CounseU RO/Attorney
General(AG) is consulted on the annual judicial
enforcement commitments the administering agency is
making, and for establishing workable internal
procedures for notifying and consulting with the
RC/AG on individual cases arising throughout the
year. The Region and State should reach a common
understanding about the general timeframes from case
referral to filing.
— Coordination that results in timely and appropriate
action by the RC/AG; The administering agency should
be able to demonstrate that its internal coordination
procedures with the RC/AG (or other appropriate -jov^c
A formal enforcement action is defined as one that requires
actions to achieve compliance, specifies a timetable, contains
consequences for noncompllance that are independently enforc%-
aole without having to prove the original violation, and 3-" "
the person to adverse legal consequences for noncompllanco '
Policy Framework of June 24, 1934, as amended). Specific a:-., -
qualifying as appropriate will be defined in State/EPA enfor;--.-
agreements.
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-.en* legal staff) result in: timely reviev of iwiti
referral oac^ages; satisfactor/ settlement of cases
as appropriate; time I/ filing and prosecution of
*ell-?repared referral cases; and oro-not action
where' dischargers violate consent decrees. As a
•general goal, EPA and State rases 5Houlj oroceeJ
fr-n referral to filing in 60 - 90 ria/s.
Effect we integration p_f pretreat-nent enforcement
activities into the established SPDES program as eyiden
ced by the existence and use of;
-- Established enforcement response procedures that are
approprlate and ti^ely;The administering agency
snould have enforcement response procedures that
include initiating appropriate enforcement action
where POTWs: fail to submit approvable pretreatment
programs; have violations of ^POES effluent limita-
tions; fail to implement approved pretreatment
programs; or fail to submit or submit delinquent
annual and other reports. The administering agency
should also have procedures for evaluating whether
POTWs are initiating appropriate enforcement responses
to violations by lUs. Where POTWs are not the
primary control authorities, administering agencies
are directly responsible for naving these procedures
in place for categorical and non-categorical indus-
trial users.
-~ Enforcement actions that are initiated in a timely
manner; The administering agency is expected to
in it late enforcement action against permittees with
pretreatment programs that are in significant noncom-
pliance, which applies to: failure to meet milestones
in enforceable schedules; violations of effluent
limits; and delinquent POTW pretreatment reports.
Enforcement actions against these POTWs should be
taken consistent with the criteria and timeframes
for the NPDBS program. Administering agencies
should also report POTW noncompllance consistent
with national guidance that defines how to determine
whether POTWs are failing to adequately implement
their pretreatment programs. Administering agencies
are expected to review the compliance status of
these POTWs, and take appropriate follow-up actions,
including inspections, audits, and enforcement
against the most serious cases of noncompliance
based on national guidance. Administering agencies
should ensure that POTWs provide, at least annually,
for public notification of significant violations in
the largest daily newspaper published in the munici-
pality in which the POTW is located. Also, where
POTWs are not the pri-nary control authorities,
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a ci-u-listen*:; 3-je~c.es s~oald initiate appropriate
enfcrcer.ent actions against industrial .tsers
violating catec,orical standards in accordant
their enforcement response criteria and proced 33
Timely and appropriate., initial response ard_ e^force^e
follcw-jo 5y E?* 9eq;ic"s to /lolaticns sv Federal
facilities as evidencedc/ t*g exxste"ce and use oft
— Established procedures that include t*ie appropriate
use of the compliance agree'tent process in lieu of
administrative orders; 7Ke £?\ Regions should use
tne compliance agree-nent process in lieu of an
administrative order as tne initial approach to
resolving nonconpllance with SPDES permit condition
by a Federal facility.3 Where such an approach doe
not result in expeditious compliance, the Region
should have procedures for escalating the response,
wnich may include issuance of a Federal administrat
order, and, thereafter, act according to the documei
"Resolution of Compliance Problems at Federal Facil
ties" and the Agency's Federal Facility Compliance
Strategy.^ For violations constituting significant
noncompliance, the timely and appropriate criteria
for initiating action apply. Where a State has beer
approved to administer the Federal facility portion
of the NPDES program, the basic enforcement re nsi
bility rests with the State; these States shou
have their own established terms and procedures . ^t
dealing with noncompliance oy Federal facilities,
and should use their authorities in the same manner
and to the same extent as any nongovernmental entity
(CWA S 313(a)).
— Compliance agreements that are concluded in a timely
manner and result inexpeditious resolution of the
noncompllance: The Region should be able to demon-
strata that it uses the established compliance
agreement process in a manner that resolves non-
compliance expeditiously. Where agreement cannot be
reached in a timely manner or does not result in
expeditious compliance, the Region should be able to
demonstrate that it escalates its response in a
timely and effective manner consistent with the
Agency's Federal Facility Compliance Strategy.
State response to instances of noncompliance by
Federal facilities should be evaluated based on the
terms and procedures set out in the State/EPA enforce-
ment agreement.
* Federal facility compliance agreement counts as a formal
enforcement action in tne S?1S s/st^n.
An Agency Workgroup has nade final recommendations on an
Agency Federal Facility Compliance Strategy, which will serve
as the basis for revising the Yellow Book.
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U V £.
LL PPCGRAM \.T-CRITI5S ^N'D
Under SS402(c)(2) and 304(i)(2) of tie C*A, EP* nas t^e
tion to ensure that approved SPDES State progra-r.s contnje to meet
-unimum statutory a~d regulatory orovisions »n ter-^s of legal
authority, procedures, fjnding, resources and oerson-e! q^ai:-.ca-
tions. In addition, £?* nas a responsisi1ity to exani-e Stace \?D£
programs periodically to assess their demonstrated orogress in
carrying out the basic goals and oojectives of the Clean '«ater *ict
and in achieving results.
Evaluation and oversight for overall program management should
be based on the following criteria:
• Adequate statutory and regulatory authority to administer
the Federal NPDES program; The Region should ensure that,
in accordance with the CWA and the NPDES regulations (40
C.F.R. S123.62(e)), approved State programs are revised as
necessary to reflect changes to Federal statutory and
regulatory requirements, and that modifications to approved
State programs conform to the NPDES regulations. Any modi-
fications to approved programs that are needed as a result
of changes to Federal legal requirements must be completed
within one year of promulgation of the changed Federal
requirements when changes to State regulation(s) are needed
and within two years when changes to State statute(s) are
needed. In addition, any proposed revisions to any State
legal authorities must be submitted to EPA for review and
approval.
The Region is responsible for assessing each approved
State's statutory and regulatory authority, as well as the
adequacy of its funding and staff qualifications to admin-
ister the ^PDES program, and for initiating appropriate
and timely follow-up action as needed when deficiencies are
identified. In order to ensure the required degree of
Federal/State program consistency, the Region should
complete review of the statutory and regulatory authority
for all NPDES State programs whenever major State or
Federal statutory or regulatory changes have been enacted.
To the extent possible. Regions will conduct these State
reviews after the State's self-evaluation of its legal
authorities has been received; however, receipt of the State*
self-evaluation is not a prerequisite to EPA review of
legal authorities where a State's legal authority has
already been identified as deficient. Regions should
promptly notify the State of the need for corrective
action. The State should correct any deficiencies identi-
fied in its self analysis or identified by EPA. In addi-
tion, the Regions should consider program withdrawal
proceedings or sanctions provided for by the "Policy on
Performance-Based Assistance" in appropriate cases where »•-*
NPDES State has failed to request authorization for the
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^at-e-t ^ro'jra-'. 337.3-5 will also cont.nje to wor
:t-er States 15 orD-ote fa.. \?D£5 ^ro^ran aooroval
Demonstrated ability to set program arionties and
carry out t!*e ^?DE5 program in an effective nannert
In addition to e/a! jat 1*13 the a-i-unist-*:: ,-t^ agenj/'s
oerf^rnance in carr/ng ojt -.ts coerat .onal resoonsibil t'
as set forth -earlier in this ^uila^ce, t*.e agenc/'s over
effectiveness should se assessed oased >n its le-nonstrati
progress towards acniewng tie ^oais anj objectives of f
Listed Dels* are four ^oals, f tne«»e local pro-
grams following approval, and, where appropriate,
directly implementing cne ocogram, including permit
issuance or equivalent control for ndustci-al
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estaolisment of local li-ruts, and appropriate
monitoring and enforcement activities. The overall
adequacy of local programs and Dretreatnent-reiated
conditions in -nunicipal permits should oe evaluated,
inducing: an on-site audit, no later t^.an one year
after Local progran aooroval and at tie tine sf per-nt
reissjance tuereafter; rsv.ew of reports, conduct 3t
inspections? and otner activities as ^-icessary. .vhere
an NPDES State does not yet have the autnority to
administer the pretreatment program, the State should
be evaluated aased on its performance of those activitie
for which it has agreed to assume a responsibility prior
to program approval.
Demonstrated ability to initiate appropriate and timely
enforcement actions against noncomoliers: The adminis-
tering agency's enforcement program should be assessed
based on its performance in taking appropriate and
timely enforcement responses, especially against permit-
tees that are in significant noncompliance and against
municipalities that are not in compliance with the
requirements of the CWA consistent with the National
Municipal Policy (NMP). As a general goal, the adminis-
tering agency should strive to take appropriate^ formal
enforcement responses against 100 percent of its signi-
ficant noncotnpliers before they appear on two consecutive
QNCRs for the same violation (generally within 60 days
of the first QNCR with identified SNC violations) if
the permittee has not returned to compliance. All
other instances of noncompliance should be addressed
consistent with the procedures and time frames in the
administering agency's EMS.
Demonstrated progress in achieving high or improving
rates ofcontinuing comp1iance; The administering
agency's compliance and enforcement efforts should be
assessed based on its historical compliance trends in
terms oC the percentage of permittees in significant
noncompliance. Annual goals should be set on a case-
by-case basis, and should be based on the administanng
agency's current compliance rate plus a percentage
improvement. Where the administering agency is below the
goal, it should develop an achievable plan for making
progress towards the goal over a reasonable period of
time.
PROCESS FOR CONDUCTING OVERSIGHT OF STATE NPDES PROGRAMS
Based upon the general criteria outlined in this document, as
*ell as the specific annual goals and priorities in the Annual
Agency Operating Guidance, the Regions and States should negotiate
individual agreements that clearly define performance expectations
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for t'-.e *:?3ES crfjram, as well as tu,e respective roles and respon<
-».."..es -f t-e ^egisr. and "re State in administering the SP rS
program. These -nay oe separate agreements setween t.He Regi nd
State, and/or part of tne overall $106 work program or State ta \
agreement processes. In either case, the agreement should re! ,ct
tne principles of the "Policy on Performance-Based assistance"
issued on lay 31, 1935 by the Administrator, and t-e Office o:
*?ater F-nd.n; ?oi»cy in the Annual Agency Operating Guidance*
The agreements should contain requirements for key outputs,
which the Region should review periodically Dased on the specific
arrangements contained in the agreements. The Region should suppl*
the State «*ith written reports of its review findings, and should
make specific recommendations and suggestions for program improve-
ments; the Region should discjss major problems witn the State as
soon as they are iiscovered. In addition. States should have the
opportunity to evaluate the Region's performance in providing
assistance and meeting commitments. These evaluations can coincide
with regular Regional evaluations of States, and should be circulat
to program offices as well.
The Region should tailor the level and the frequency of its
review to the State's overall performance in each specific program
area. States that have consistently demonstrated their ability to
adhere to or to exceed national program goals and priorities and to
meet or to exceed national performance expectations .may be reviewed
less frequently and/or less extensively; other States may receive
more frequent and/or more detailed reviews oy the Region. Whe Na
State exhibits continued poor performance, the Region should m
recommendations for changes and should take other action(s) as
appropriate.10 The criteria and goals in the earlier sections of
this guidance provide the Region with a general baseline for deter-
mining the proper level and frequency of oversight of a State NPDES
program.
The Region should conduct a comprehensive assessment of the
operational elements of each State NPDES program at least once a
year prior to the Office of Water mid-year evaluation. This review
may be a summary of the results of the periodic program evaluations
that were performed during the year, and should provide the State
with an opportunity to explain its activities and progress in areas
of its NPDCS program that are not directly related to national or
Regional goals and priorities. At the conclusion of the annual
review, the Region should supply the State with a written report
that outlines the State's accomplishments and areas where improvement
IS needed, as well as any agreements that were reached on resolving
problems that were identified during the review.
10. See the "Revised Policy Framework."
w
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PROCESS FOR NOTiFrcvrics/ccNSiLTvriON' AND CRITERIA FOR DIRECT
FEDERAL ENFORCEMENT"'"'
Under State delegation, £P\ nas tne right to initiate an
enforcement action in a State, and is required ay tKe Clean .%'ater
Act, as amended in 1937, to notify a State prior to E?\ assess-nent
of administrative oenalties. The Region and State shoals ->ave a
process for notice and consultation with tre State prior to initiat-
ing direct EPA enforcenent action. The process should include a
discussion between the Region and State with respect to the circum-
stances surrounding the specific nonconpliance situation and the
appropriate enforcement response. Such procedures can be used to
handle Federal facilities /lolations where the State might need
EPA's assistance in resolving Che noncompllance. Attachment * is a
generic outline for a process that Regions and States might use for
consulting and coordinating State/EP\ enforcement activities,
including determining when to initiate Federal enforcement action.
This process should also be used in situations in which EPA plans
to assess administrative penalties.
Using this advance consultation process/ there will often be
cases where the Region and the State reach mutual agreement that
Federal action is more appropriate or that the State faces an
unusually large caseload. EPA -nay also initiate direct Federal
enforcement action where the Region determines that Federal action
is necessary because the case meets any of the following criteria:
legal precedent under national environmental law(s), unresolved
interstate issue(s), or violation(s) of an EPA order or consent
decree; where a Region determines a State has failed to initiate
timely and appropriate formal enforcement action (as prescribed
earlier in this guidance); and/or where a Region determines that a
State has obtained a grossly deficient penalty or sanction under
the circumstances of a given case.
In all instances, the Region will adhere to the established
process for advance notice and consultation with the State. The
discussion should include the option of the Region issuing a Notice
of Violation (NOV) to the permittee and the State indicating its
intent to institute formal enforcement action in 30 days if the
State fails to properly enforce and the source fails to return to
compliance, or the option of foregoing the SOV process in favor of
immediate EPA action against the permittee. This should be done in
accordance with State delegation agreements and Memoranda of Under-
standing.
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ATTACHMENT
*CDEL
!
? ICV.'T \0\C3MPLIASCE ACTION' PROGRAM
(SNAP)
MEMORANDUM OF UNDERSTAND!MG
PURPOSE:
SCOPE:
PROCESS,
SCHEDULING
AND LOCATION
PREPARATION:
To provide for routine consultation and coordination
of EPA/State enforcenent activities, and for EPA
oversight of the State's compliance and enforcement
programs.
The QNCR, furnished by the NPDES State in accordance
with Federal regulations, will serve as one of the
basic mechanisms for coordinating and overseeing
activites involving -najor permittees. Supplementary
compliance information on P.L. 92-500 minor permittees
will be submitted in accordance with written policy
and guidance from EPA Headquarters (SPMS and OWEG).
At least once each quarter, EPA and the State will
discuss the status of all permittees that appear on
the QNCR or supplementary submittal. The discussion
should take the form of a meeting wherever possible.
[Note: a conference call may be substituted where
distances are prohibitive!. The meeting will take
place on the work day closest to exactly four weeks
prior to the stipulated State submission date for
the next QNCR. The location of the meeting will
alternate between EPA and a State office.
EPA Regional staff will review the State QNCR, which
must be prepared and submitted in accordance with
Federal Regulations and written policy guidance from
EPA Headquarters. EPA Regional staff will also
review supplementary compliance information on minor
permittees, which should be prepared and submitted
in accordance with EPA guidance and policy.
Six weeks prior to the meeting, EPA will formally
transmit to the State its detailed comments regarding
items that appeared on the State's preceding QNCR.
EPA's comments should include: the pernuttee(s) in
question; the State action*s) in question; and the
recommended action to be taken by the State and/or EPA.
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Three weens error to the meet 1-5. the State will
furnisn a response to EPA's list of concerns, r' >
including the State's action to obtain the ^ )
permittee's compliance.
Two wee
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^POUN'O The ccnnon -jcal of all parties is to cause permittee
3-Z.£3j to achieve pro^ot and sustained conpllance. Twere
'cant) .-nay be cases where it is npossiale for EP\ to agree
with t^e State's actions to achie/e tiis joal. In
cases wnere agreement cannot oe reacied, botn £?\ ar:
the State spould avoid extended ieoate and su.Ouii
clearly define the actions that eacn part/ intends
to ta*e. Discussion should then -lo.'e to the re^ainv
itens on tne agenda.
Where there are significant differences of opinion,
EPA and the State should present the divergent view-
points to their respective Directors immediately
following the -neeting. The Directors will ultimately
decide tne actions to be taken oy their respective
Divisions and, as appropriate, will discuss with
each other the decisions.*
PARTICIPANTS: The lead participants will be the Chief/Director
from the appropriate Branches in the EPA and State
offices. It is essential that the same individual
participates in all four meetings held each year
because commitments are made at the meetings. Other
individuals may be asked to participate based upon
the specific issues to be discussed at the meeting,
(technical expertise. Construction Grants, etc.);
EPA and State legal staff may also participate.
The exact participants will be determined when the
agenda is finalized.
MINUTES:
The State will provide the minutes to the EPA lead
individual within two weeks after the meeting.
EPA must submit its detailed comments (if any)
within one *eek; if no comments are submitted with-
in the allotted time, the minutes will be considered
final. The minutes will describe the actions that
EPA and/or the Staca expect to take, including
independent EPA action such as issuance of either
NOVs or AOs. For the sake of brevity, the minutes
can reference the submittals received prior to the
meeting.
Director
State Water Program Office
Director
Water Management Division,
U.S.EPA, Region
* Decisions Should be escalated to the Division Directors as the
exception rather than the rule.
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1.8,
# "Action Plan on Pollution Prevention", dated April 13, 1989,
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r
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20480
APR 13 1989
INFOHCEMENT AMD
COMPLIANT! MONITQIMlC
MEMORANDUM
SUBJECT: Action Plan on Pollution Prevention
and Enforcement
FROM: Edward E. Reich
Acting Assistant Administrator
TO: Linda J. Fisher
Assistant Administrator for
Policy, Planning and Evaluation
Attached is the Office of Enforcement and Compliance
Monitoring's Action Plan for Pollution Prevention. It shows how
OECM plans to incorporate pollution prevention goals into
enforcement program implementation. A draft action plan was
reviewed by the Regions and Headquarters program offices. This
plan reflects their comments. The plan encompasses four areas:
environmental auditing, enforcement settlement agreements,
vigorous enforcement of existing laws and the use of compliance
inspections to disseminate information on pollution prevention. t
further proposal to use compliance inspectors to affirmatively
identify pollution prevention opportunities specific to
individual sources — drew little support and raised significant
concerns•
We look forward to working with your staff to develop the
Agency-wide Strategy on Pollution Prevention. If you have
questions, please call Cheryl Wasserman, Acting Director,
Enforcement Policy Division on 382-7550 or EMAIL EPA2281.
Attachment
cc: Associate Enforcement Counsels
Headquarters compliance Program Directors
Acting Director, HEic
Regional Enforcement Contacts
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EREVENTZON AND ZHFORCEKENT
Action Flan to Foster Two Agency Goals
This paper describes the relationship between two important
Agency goals: preventing pollution and achieving high levels of
coapllance with environmental requirements. Zt identifies
specific actions to realize the mutual benefits of both goals.
WHAT ARE THE TWO COALS?
o Compliance and enforcement strategies seek compliance with
specific performance or operating standards. The key ingredients
of the compliance goal are: 1) specific legal requirements that
define acceptable performance; 2) a determination of compliance
status against those requirements; 3} legal consequences for
violations; and 4) enforceable action plans to permanently
correct underlying compliance problems.
o Zn contrast, the pollution prevention goal as defined by the
Agency transcends existing legal requirements. Sources are
encouraged to reduce volumes of vasts, vasts streams, effluent,
emissions or pollutants at their source, whether or not subject
to specific requirements, and to'reuse wastes to minimize the
adverse environmental consequences of treatment and disposal.
o Compliance and enforcement strategies always seek to "prevent
pollution1* in the broadest sense of the term but not necessarily
in the specific meaning of the term as now employed by EPA.
Enforcement deters violations i.e., "•excessive" pollution, and
encourages reduced levels of pollution to avoid exceeding limits.
Zn the extreme, it may remove from business operations repeat
violators by resulting in denial of permits or demanding plant
shut down. Zn most cases, this also means that in an effort to
avoid violations, sources of pollution are encouraged to
eliminate or keep emissions or effluent veil below that required
to comply. Moreover, if treatment of pollutants in order to
comply with standards is sufficiently costly, it vill drive
pollution reduction for economic reasons, but only if such
requirements are stringently enforced.
Unless specifically mandated, however, regulated entities are
completely responsible for their choice as to how they will
comply with requirements. This empowers the regulatee either to
utilize the traditional "end of pipe* control to reduce
emissions or effluent after they are generated or to change
processes to reduce levels of pollution at the outset.
Enforcement settlements end orders cannot unilaterally introduce
requirements and restrictions on the means of compliance that
were not otherwise set forth in the original requirements.
Therefore, as a general rule, if a process or technology is
preferable from a pollution prevention standpoint, as well as
economically feasible, it is better to establish it as a norm in
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the regulatory setting than to rely on case-by-ease enforcement
to realize its potential.
BOW 00 THESE GOALS KBXATE?
1- Strong, credible enforcement of existing lavs is essential to
encourage pollution prevention
The greatest incentive to action by public and private entities
to reduce or eliminate pollution stems from a concern over
liability, both now and in the future, personal and corporate,
for the consequences of pollution generated.
Further, the expectation of fairness, that competitors will be
made to comply, is essential to support those who choose to make
investments in pollution prevention as a means of achieving
compliance or of avoiding future environmental problems. The
literature is replete with case studies of those who step out in
an innovative way only to be undermined by those who flaunt the
law.
2* Pollution prevention today can mean reduced need for
enforcement
Zn the extreme, if discharges are eliminated or reduced to well
below otherwise acceptable levels, there would be minimal need
for a major compliance monitoring and enforcement effort around
these discharges. Further, if wastes are reused or not
generated in the first place (and thus not disposed of), there
would be less need for future after-the-fact "Superfund-type"
enforcement to address disposal practices which we have not yet
recognized as harmful. Zn this sense, the pollution that is
prevented today, can indeed mean reduced need for enforcement
tomorrow.
3- The compliance and pollution prevention goals fundamentally
reinforce each other; however there Bay be isolated examples of
conflicting short run strategies:
o The time allotted to legally come into compliance or the need
to expeditiously remedy violations may not be sufficient to
develop and implement pollution prevention alternatives.
o Incomplete environmental solutions proposed in the name of
pollution prevention may actually shift the burden from one
medium or forum to another, complicating enforcement.
o End-of-pipe controls may sometimes be easier to monitor for
compliance than pollution prevention alternatives.
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Hovever, these conflicts can be illusory, and efforts to achieve
both goals are usually reinforcing. Further, they can be avoided
or reduced with more careful planning early in the regulatory
process. Attachnent fl is an example of this interplay.
WHAT CAN ENFORCEMENT DO TO FOSxfiK POLLUTION PREVENTION?
1* Use ongoing compliance promotion initiatives in environmental
auditing and environmental management as well as enhanced
outreach vithin compliance strategies to promote pollution
prevention
a- EPA*s Policy statement on Environmental Auditing
promotes this voluntary practice vithin the regulated community
to prevent compliance problems, promptly correct them, ensure
sound management practices and reduce risks of environmental harm
generally. Outreach activities to promote these practices will
continue and be strengthened. (See Attachment 12)
b- Compliance strategies are developed at the time a
regulation is promulgated and include promotional activities as
veil as plans for compliance monitoring and enforcement when
the rules become effective. Early development and dissemination
of information on pollution prevention alternatives is Key to
ensure the regulated community can make informed choices about
means of coming into compliance. OECM vill vork with the program
offices to factor these activities into compliance strategies, in
coordination with the States, vhere appropriate.
2- Encourage pollution prevention through enforcement settlement
conditions
Given the importance in the long term of establishing approaches
to pollution control which ultimately prevents pollution at its
source, the Office of Enforcement and Compliance Monitoring along
with the program offices vill carefully reviev current policy and
practice to assess vhere there are any impediments to pollution
prevention that are otherwise unnecessary to preserving a strong
and effective enforcement program.
Although enforcement Bust closely track agency requirements,
there are opportunities for enforcement negotiations to better
accommodate pollution prevention approaches for sources to return
to compliance, and for these settlement agreements to introduce
creative conditions vhich can further pollution prevention goals.
These opportunities must take into account overriding concerns
for preserving both the deterrent effect of enforcement actions
as veil as elements of fairness and equity in the extent to vhich
pollution prevention conditions related to the legitimate
environmental concerns of enforcement officials. Attachment 13
presents the charge of a nev agency workgroup vhich vill draft
multi-media guidance for addressing these issues. Interim
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guidance vill be available by the «nd of the fiscal year.
Following several regional pilots, the guidance vill be
finalized.
Program-specific guidance aay also be developed to implement
these principles. Programs are generally encouraged to develop
their own guidance but OECM vill work with them to ensure
consistent application of overall enforcement principles that are
in place and are being articulated through the umbrella policy
workgroup. These approaches vill then be fostered among State
officials.
3* Provide the incentive for pollution prevention by continuing
to enforce existing requirements vigorously
There are numerous examples of how traditional enforcement
provides incentives for pollution prevention, some of which are
highlighted in Attachment 14. Pollution prevention vill be
enhanced through continued efforts to strengthen enforcement and
to better communicate the adverse consequences of non-compliance.
4- Use compliance inspectors to disseminate information in the
field on pollution prevention
OECM will support proposals for field personnel to be used to
disseminate information on pollution prevention to facility
managers, which refer to other sources of expertise and technical
assistance. A full discussion of this issue is included in
Attachment |5.
Consideration also vas given to using agency compliance
inspectors to identify pollution prevention opportunities in the
field. This proposal has proven to be highly controversial and
vill not be included in the action plan at this time. Those
strongly opposed to this approach cite a confusion of roles.
Those who support it identify a need for extensive training
before agency inspectors vould be in a credible position to offer
such advice.
****************************************************************
Each of these areas is explored more fully in the attached
discussion pieces and action summaries: Attachments 12-5.
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ATTACHMENT f1
KXAMPI2
INTERPLAY BETWEEN ENFORCEMENT AND POLLUTION PREVENTION GOALS
An Illustration of how these relationships play out in practice
is the development and implementation of lev solvent technology.
EPA has encouraged the use of water based inks and paints, for
compliance with air quality standards, in place of high solvent
inks and paints, which require capture and incineration of
volatile organic compounds.
Full substitution of water based paints and inks for high solvent
paints and inks would enhance compliance with air pollution laws.
There could be reduced need for continuous monitoring, record
keeping, and inspection presence. As long as high solvent paints
and inks are used, there is a need for end-of-pipe control,
capture and destruction of volatile organic emissions through
incineration, and this requires continued monitoring,
surveillance and enforcement action for inadequate capture and
destruction efficiencies. Adoption of water based paints and
inks also could reduce the need for enforcement oversight of
disposal of used solvents.
However, the industry was slow to respond to the pollution
prevention alternative to incineration. Despite ample time to
develop competitive processes if they had started right away to
invest in these alternatives, industry ran out of time to comply.
Perceptions of lax enforcement, concern that the technology would
lead to inferior product, and that competitors would get away
with no action, led to a wait and see attitude. Zt was only
after vigorous enforcement, forcing either incineration, water
based inks, or a combination of both, that progress in applying
pollution prevention approaches proceeded at a rapid pace. Zn
this regard, enforcement practices at first delayed and then
enhanced pollution prevention. Zn forcing industry's hand, and
not allowing more time to develop the alternative technologies,
enforcement was also foreclosing pollution prevention by those
who opted for the incineration option given time constraints.
Further, because the pollution prevention option is not yet as
well developed as it might be, many chose to comply with a
complicated arrangement combining both high and low solvent inks
in production line averaging schemes. This introduced new
wrinkles in compliance monitoring and enforcement requiring a
recordkeeping and compliance trail for use of specified paints
and inks.
Do the two goals therefore conflict? While seemingly more
complex for instantaneously assessing compliance, the pollution
prevention alternative probably facilitates continuing
compliance. Zt is far easier to review records for an accurate
portrayal of behavior over extended periods of time than
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to attempt to demonstrate the capture and destruction efficiency
of an incinerator's operation over time, between inspections.
At the same time, this mixed approach, using both vater based
paints and incineration, allows industry to become more familiar
with the vater based alternatives and to perfect their
application to more specialized customer needs.
In this instance, the pollution prevention goal seemed on its
face to make enforcement more complex and enforcement seemed to
shut off pollution prevention options but, it is more likely that
these efforts vill reinforce each other in the long run. As the
technology develops, spurred on by vigorous enforcement, its full
use holds the potential for significantly reducing the need for
compliance monitoring and enforcement.
Clearly, promoting compliance and pollution prevention can
sometimes appear to be a careful balancing act, but one that is
easier to perform if it is remembered that the ultimate gains are
best served by seeking to achieve both goals.
Finally, as one cautionary note, in assessing the environmental
benefits of proposals to prevent pollution at its source, the
Agency must take into account compliance behavior and difficulty
of enforcement. If reductions of pollutant discharges, emis-
sions, or wastes leads to smaller, more numerous sources EPA must
weigh the problems of monitoring and disposal against current
practice to truly assess the benefits of the practice.
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ATTACHMENT f 2 ENVIRONMENTAL AUDITING
Use ongoing compliance promotion initiatives in environmental
auditing and environmental management to promote pollution
prevention
Ongoing agency initiatives promote environmental auditing
and sound management practices. They serve to solicit the
attention and commitment of senior management in public and
private sector organizations to identify and take appropriate
action both to improve compliance and to address environmental
risk generally. The Office of Enforcement and Compliance
Monitoring, in cooperation with the Office of Policy, Planning
and Evaluation co-authored the agency's Policy Statement on
Environmental Auditing, published in the Federal Register. July
9, 19*6 (51 FR 25004). This policy does several things. In
particular, it:
- Encourages environmental auditing as an effective,
independent, systematic, periodic and objective review
of plant operations and procedures to assess
management systems, compliance status, risk reduction
potential or any combination of these.
Auditing is considered an augmentation of and not a
substitute for ongoing environmental management,
monitoring, reporting and recordkeeping obligations.
* Defines the general elements of an effective auditing
program;
- Respects the importance of carrying out self-evaluations
with some degree of privacy, clarifying when EPA may or
may not request audit information.
- Offers no reduced enforcement presence as a quid pro quo
for conducting audits and explains that continued EPA
inspection and enforcement is essential to maintain the
incentive to audit.
- Establishes agency policy to introduce environmental
auditing provisions in consent decrees and orders with
firms which evidence repeated patterns of violation, due
at least in part to management failure, or where the
violations are likely to occur similarly at other
facilities owned and operated by the violator.
Before and since the issuance of the policy, both offices and the
Office of Federal Activities have been actively involved in
promoting the use of environmental auditing by regulated entities
both to anticipate environmental compliance and other problems
related to general environmental risk exposure. In addition,
OPPE is in the process of documenting broader environmental
management practices e.g. corporate policies, of leading industry
programs.
Activities fall into three categories:
a) Outreach:
- Speeches are regularly given by OECM/OPPE/OFA on the
policy, encouraging these practices;
- technical assistance is provided in the form of case
studies, protocols and bibliographies distributed
on request (recently waste minimization assessment
guidance was added to these materials);
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- OFA is preparing audit guidance for federal agencies
- OECM plans to strengthen the network in the Regions of
individuals capable of providing information on
environmental auditing; and
• OECM and OPPE have active representatives on the
Environmental Auditing Roundtable, an industry group
dedicated to promoting auditing as a profession.
b) Development of Auditing Guidance for Municipalities
- Municipalities are a last frontier for auditing and
ripe for its application given compliance pressures on
city and county governments. We are aware of only one
municipal auditing program at present. In response to
interest expressed by this community, OECM and OPPE are
developing an initiative this year to promote auditing
practices tailored to this group and its environmental
concerns.
c) Conditions in Enforcement Settlements:
•
- In November, 1986 OECM issued guidance on the
inclusion of environmental auditing provisions in
enforcement settlements. Since that time, numerous
orders and decrees have introduced audit applications.
This guidance indicated that EPA's policy is to settle
its judicial and administrative enforcement cases only
where violators can assure the Agency that their
noncompliance will be corrected. This assurance may,
in part, take the form of a party's commitment to
conduct an environmental audit.
EPA reserves the right to review audit-related
documents required as part of an enforcement
settlement agreement, but usually oversight entails
some form of self certification, review of findings
and/or a management plan pursuant to an enforceable
schedule.
A violator•• commitment to conduct an audit is one of
several actions that can be required to remedy
noncompliance or, in certain circumstances, may be a
basis for reduced penalties. This element is discussed
further in Attachment #3.
ACTIONSs 1) Continue and enhance outreach efforts, emphasizing
new interest in pollution prevention; 2) undertake municipal
project; 3) strengthen use of compliance and management-related
audit conditions in settlements; and 4) explore use of waste
minimization audit conditions in settlements under workgroup
described in Attachment |3.
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ATTACHMENT §3
ENFORCEMENT SETTLEMENT CONDITIONS
Encourage Pollution Prevention through Enforcement
Settlements Conditions
Just as environmental auditing conditions related to
compliance and/or management audits may be appropriate to
introduce in enforcement settlement negotiations as described in
Attachment |2, so may other means of encouraging pollution
prevention. Two EPA Regions have expressed interest in
exploring, with OECM and the Office of Pollution Prevention, what
pollution prevention terms and conditions may be appropriate in
enforcement settlement negotiations. In general, pollution
prevention activities may be appropriate if they:
Correct the underlying violation
For example, if treatment capacity is exceeded, instead of
agreeing to build additional capacity on a schedule,
the source and agency might agree to a schedule to reduce
pollution generation to the levels which can at least be
accommodated with current treatment or control capacity.
In such cases, pollution prevention is the means of
compliance embodied in the agreement.
Provide evidence of good faith efforts to comply,
warranting penalty mitigation.
Good faith is a factor which certain enforcement penalty
policies recognize as a potential reason for downward
adjustments in penalty assessments: This is the basis in
the environmental auditing policy for any consideration of
source proposals to audit for further remediation or
improvement beyond that required by enforcement for the
^specific violation in question.
Define projects which may be an acceptable basis for
mitigation of penalties which would otherwise be assessed
(Environmental Improvement Projects)
The Uniform Penalty Policy contains provisions for
considering projects as part of a settlement agreement
(and have been adapted to program- specific penalty
policies) where they do not significantly reduce the
deterrent effect of a penalty.* The criteria include:
— Mitigation projects cannot substitute for full
compliance (they must be undertaken in addition to
correcting the violation).
— The project should be closely related to the nature
of the original environmental harm or violation.
* A Workgroup is currently reviewing the existing criteria for
considering alternative payments, in the context of developing a
policy on mitigation of administratively assessed penalties.
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— Penalty reductions should reflect the actual cost of
the penalty mitigation project (i.e., no tax
advantages which can reduce the deterrent effect of
the penalty).
— Provisions in consent decrees or agreements cannot
go beyond what is the equitable power of the Courts
to order.
— The project must primarily benefit the environment
rather than the defendant (no favorable publicity *-'
for violator, etc.)
~ The project must not be something the defendant
should be expected to do as sound business practice.
Two principles must guide any initiatives in this area:
o Any such provisions cannot weaken the deterrent effect of
the enforcement action* Enforcement actions must establish
the correct incentives and disincentives, leveraging
relatively few individual actions into far reaching
behavioral changes. We also must avoid perverse incentives
to delay action to develop pollution prevention alternatives
until they might be needed to bargain with enforcement
personnel.
o Any such provisions must in turn be enforceable, that is,
accompanied by tracking and follow through to ensure they
are carried out. This has proven to be difficult in the
past and is one reason for the traditional reluctance of the
Department of Justice for accepting other than dollar
penalties in addition to correction of the underlying
violation.
Traditionally, EPA policy has followed these principles by
rejecting proposals which defendants would otherwise choose to do
on their own or projects whose benefits accrue to the defendant
rather than the environment or the public at large. Current
penalty policies are under review to assess the current
limitations on accepting alternative payments and other
beneficial projects.
ACTIONS: OECM will establish an Agency workgroup to: 1) prepare
guidance on acceptable enforcement settlement provisions which
promote pollution prevention consistent with Agency penalty
policies and work with individual program offices on program-
specific guidance; and 2) work with selected Regions to pilot
the guidance.
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ATTACHMENT |4
VIGOROUSLY ENFORCE EXX8TIHG LAWS
Provide the incentive for pollution prevention by continuing to
vigorously enforce existing requirements
The two greatest motivations for pollution prevention are
the potential liability from enforcement of environmental lavs
and broader private liability through tort claims, contracts etc.
for the adverse consequences of environmental pollution.
Specific examples of how strong enforcement can encourage
pollution prevention include:
o Pre-manufacture Notification:
By preventing new chemicals from being produced and marketed
which pose unacceptable environmental harm, EPA can most
effectively prevent new pollution at its source.
o Title ZZZ Toxics Release Inventory reporting:
Required reporting under Title ZZZ section 313 encourages
sources of toxic chemicals to reduce volumes of releases into
the environment by maXing the information publicly
available. Zt is also essential as a baseline for assessing
progress in preventing pollution nationwide. Firm and
visible enforcement is needed to reinforce those who
diligently reported and gain compliance from those who have
not.
o Superfund and RCRA enforcement:
Corrective action end clean-up of past practices which are
new deemed harmful, establishes new rules of behavior
requiring anticipation of future liability regardless of
whether action today is legal. Vigorous enforcement leads
operators to conclude that reducing the amount of hazardous
waste is in their own interest.
o Pesticide use:
Groundwater contamination, air and surface water problems
from excessive pesticide use, with vigorous enforcement, may
drive reductions in application levels and for elimination
of pesticide use.
o Air and Water standards:
Given the substantial existing investment in pollution
control, enforcement may force exploration of process change
to meet new toxic requirements and demands of growth. Zn
particular, firm enforcement of pretreatment and other toxic
requirements, particularly new sludge disposal requirements,
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may enhance substitution of product and process to avoid
further pollution control expenditures.
o Continuous Emissions Monitoring:
There are natural variations in the operation of any type
of equipment. When continuous emission monitoring is
required to assess compliance status with requirements, it
tends to force the regulated community to provide for an
ample margin of safety in plant operations, to avoid
reporting instances of non-compliance.
ACTIONS: 1) Continue strong emphasis and priority for enforcement
of environmental lavs; and 2) continue to pursue ways to enhance
the visibility of enforcement and the adverse consequences of
non-compliance.
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ATTACHMENT I5
INSPECTOR ROLE IN TECHNICAL ASSISTANCE
ON POLLUTION PREVENTION
Use compliance inspections to identify pollution prevention
opportunities in the field
EPA, State, and local compliance monitoring programs rely on
a combination of self-reporting by facilities and on-site
inspections to determine compliance with permits, rules and
existing enforcement commitments. These inspections may be
carried out for cause, or as part of a neutral inspection scheme.
The primary purpose of an inspection is to gather information and
evidence to support the compliance determination and any follow
up enforcement action where violations are discovered. The
inspector is the most visible representative of EPA or the State
or local agency at the plant or facility level. The presence of
and conduct of the inspector on-site can add to or detract from
the credibility and deterrent value of the compliance monitoring
and enforcement program.
The appropriate role for inspectors in technical assistance
has long been debated within EPA and the environmental community.
State and local inspectors tend to adopt the technical assistance
role more readily, but are notably less oriented to formal
enforcement. The underlying concerns about the role of inspec-
tors in providing technical assistance are:
1- Technical advice offered in the field for remediation or
correction of the violation can undermine EPA's further enforce-
ment action, or be raised as a defense. (For this reason, with
few exceptions, inspectors are urged in closing conferences with
facility managers not to even draw conclusions as to the viola-
tions.)
2- The roles of technical assistance/transfer and enforce-
ment require different approaches and can cause confusion in
roles, undermining the enforcement attitude which is already
difficult to foster.
3- Effort spent on technical assistance when it is oriented
to solving specific problems can be quite expensive and diverts
limited resources from enforcement.
4- Depending on its scope and purpose, technical assistance
may require a level of expertise that all but the most ex-
perienced engineers lack. Although a 1987 survey of EPA person-
nel performing compliance inspections found that 2/3 were
environmental engineers or environmental scientists, knowledge of
engineering design and processes at the plant-level sufficient to
suggest pollution prevention options is quite different from
identifying and documenting compliance problems.
5- Technical assistance from EPA may compete with and
inhibit the development of such assistance in the private eector.
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While all valid concern*, there is one area of potential
benefit in using field inspector* for a veil-defined but limited
technical assistance role which avoids some of these pitfalls.
One approach, requiring little new expertise or change in
roles, is for EPA inspectors to distribute to the plant operator
literature promoting pollution prevention action. The inspector
vould not have a problem-solving role. OECM has suggested this
approach for SARA, Title IZZ reporting and RCRA small quantity
generators. Some training may be needed so that likely questions
can be answered without loss of credibility. However, such
literature should always include references and contacts for
further assistance from EPA Regions or Headquarters.
The majority of commenters suggested that a separate cadre
of personnel, not compliance inspectors, be relied upon for
pollution prevention expertise, such as for waste minimization.
Zn such cases, however, it is important that the role and
expectation be clearly established and distinguished from an
enforcement-oriented field presence. This approach is adopted
by OSHA which carefully separates the inspection function for
enforcement from the technical assistance/consultation function.
OSHA offers this latter assistance to small and medium sized bus-
inesses in hazardous industries through a consultation program
for which it has a specific legislative mandate. Those who
request a consultation must agree in advance to correct any
deficiencies noted, and may be referred for compliance inspec-
tion if they fail to correct deficiencies.
ACTIONS: Based on comments from the lead Region, the Agency
Inspector Training Advisory Board, and the Enforcement Management
Council concerning the Importance of separating the technical
assistance function and the enforcement function, OECM is not
proposing any further action at this time in regard to inspectors
providing technical assistance in the field on pollution
prevention opportunities. However, OECM will support specific
proposals to use compliance inspectors to disseminate literature
on pollution prevention. OECM will use existing institutional
mechanisms to raise and gain support for such proposals developed
in cooperation with the program offices.
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II. NPDES PROGRAM; PRE-ENFORCEMENT
A. SOURCES OF EFFLUENT LIMITATIONS AND OTHER REQUIREMENTS
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II.A.I.
"NPDES Permit Authorization to Discharge", dated April 28, 1976.
Id.
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J UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D C 20460
APR 2 8 1975
OFFICE 0? ENFORCEMENT
USMCRAND'JM
Subject- NPOSS Permit Authorisation to Discharge
From* Deputy Assistant Administrator for Water Enforcement
To: Regional Enforcement Director, Region v
This is in response to your March 17 memorandum requesting
Headquarters' policy on tne following issue:
H[W]hether an HPD5S permit constitutes an authorization
to discharge only specific parameters linited or monitored in the
perr.it or a general authorization to discharge all parameters
only to the limitations contained in the permit."
Answer
Headquarters policy, as well as the clear language contained in
the standard permit fom [EPA Form 3320-4 (10-73) ], provides for a
general authorization to discharge subject only to the conditions
and limitations contained in the permit.
Discussion
Every standard permit issued by Z?A provides tnat the named discnarge;
is "authorized to discharge from a Inaned) facility ... to [named]
receiving waters ... in accordance with effluent limitations, monitoring
requirements and otner conditions set forth in Parts I, II, III hereof."
In addition to effluent limitations specified in Part I and any special
requirements set forth in Part III each general authorization to discharge
is subject to the general conditions set forth in Part II. Those
general conditions which tend to restrict the general autnorization- to dis-
carge are the following-
A.I. Change in Discharge - requires notice of facility expansions,
production increases or process modifications resulting in any different
or increased discharges of pollutants even if_ such changes do not violate
trie pern-it effluent limitations.
A.3. Facility Operation - requires tne permittee to maintain his
treatment facilities or systems in good working order and operate them
as efficiently as possible.
'A',
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A. 5. Bvnassinq all bypassing is prohibited except under certain
circumstances.
It is believed that the above general conditions, along with the
installation and proper operation of treatment systems designed to
achieve compliance with effluent limitations based upon SPT and vater
quality standards requirements should adequately limit the general
authorization to discharge. Should information which suggests otherwise
subsequently become available (e.g., discovery of the presence of toxic
substances such as PC3s in the discharge), the permit may be codified
for cause in accordance with general condition B.4. ("Permit Modification")
The few permits issued under the NPDES's predecessor permit program.
tne Refuse Act Permit Program, authorized only those parameters identified
in the permit. This approach was rejected by SPA during the early
development phases of the NPDES because it is impossible to identify and
rationally limit every chemical or compound present in a discharge of
pollutants. Compliance with such a permit would be impossible and
anybody seeking to harass a permittee need only analyze that permittee's
discnarge until determining the presence of a substance cot identified
in the permit. The permittee then would be in technical violation of
his permit.
Because we believe the approach adopted in the NPDES Permit Form
3320 is valid we recommend against inserting in permits the language
identified by Walter A. Romanek in his January 22, 1976, •nemerandun
(attached). Although it may be appropriate in special cases to employ
narrative language in addition to the Part II general conditions in
order to further restrict the general authorization to discharge, as a
routine tiarter such practices should be avoided.
I believe the above statement of policy is consistent with that
provided to your staff by Dick Browne and Barry Shanoff. If you have
any further questions please contact Dick BrownefHBpb iS^mett, Brian
Molloy, or me.
Iffre? Gf Miller
Enclosure
cc: Roy Harsch, Enforcement Division., Region V
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II.A.2.
Compliance with NPDES Permit Effluent Limitations", dated January 5,
1977.
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C ^v"^ I* UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
V/ASHINGTON, O.C 20463
CFr'CS CF THS
XOMI'dSTRATC?.
TO: Regional A«-ninistrators
. Bepu.tr/ Administrator /£/ Jc^r Curias
JiCT; POTT? Coc-plianca with S1PDES Permit Sffluent LJ
Poor performance by Publicly Owned Treatment Works (?OT57s) is of
concern to tne Agency. Each successive review of ?OTT7s' ooarations
indicates that their overall performance level is unsatisfactory. Over
a third of the POTWs are failing to produce the effluent quality for WHICH,
they were designed. Nearly half of the PCTWs originally designed for
secondary treatment fail to cosoly with present secondary treat=ent
standards. These conclusions nave been confirmed bot.i by SPA's annual
Section 210 Reports to Congress and by the recently completed municipal.
cocpliance audit report. This se=orandun Briefly describes the ZPA's
policy for dealing with tr.e prcblen.
The Federal ^Tater Pollution Control Act clearly establishes SPA's
pnaary role in assuring adequate POTW performance as being regulatory.
This role requires us to insist that municipalities accept full ~~
responsibility for achieving effluent liaits required by their NPD2S
permits. To accomplish this, we nust ass^=e an aggressive enforcement
posture with respect to municipal noncocpliance. Aggressive enforcement
of municipal permit requirements can and will yield significant results.
Region XX, for example, recently initiated and won a major precedent-
setting civil action against the City of Casden, New Jersey, forcing
it to restore and properly operate and maintain its treatment facilities.
Other significant enforcement actions are also oeing developed against
POTWs. The anount of POTW enforcement activity, however, aust be
drastically increased in all Regions in order to demonstrate our in-
sistence upon municipal accountability for PCi:? performance.
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Municipalities axe responsible and accountable for achieving the
effluent Imitations required in their KPC23 permits whether or net they
have tne in-house capability to deal with the problem underlying tne
violition. It is the municipality's responsibility to see1-: and secure
whatever technical assistance or training is necessary to solve tnat
probiea. SSA rust insist tnat municipalities accept and carry out tnat
responsibility and must take enforcement action against those tnat are
unwilling to do so.
Although it is recognized that SPA and the States are currently
providing limited technical and training assistance, most of such
assistance and training nast be provided by the private sector. While
the private sector can undoubtedly develop the capability to provide
such services when a sufficient demand is nade on it far those services,
to date that demand has not been strongly made. Consequently, rany
consultants, equipment manufacturers and systems venders have not yet
developed a significant capability to render technical assistance or
training. SSA and the Stages must expand their present efforts to
encourage and stimulate development of private sector capability and
expertise to meet these needs. Aggressive enforcement of municipal
pemits and an insistence that municipalities seek needed technical and
training services snould provide an incentive for the private sector to
develop the needed capability.
In those few cases where a municipality has recognized the need of
outside assistance to meet permit effluent Imitations and nas unsuccess-
fully sought that assistance/ formal enforcement sight be a futile response.
EPA or State assistance mignt be appropriate in such a situation. Since
it is the municipality's responsibility to seek tnat assistance, it should
be given normally "at the srunicipality' s request rather than on the initia-
tive of SPA or tne State. And since a demand must be placed on the private
sector if it is to develop the capability of providing such assistance,
SPA should not normally provide the assistance unless the r^micipality has
unsuccessfully sought it elsewhere. Consequently, Z3A and State technical
and training capabilities "ill be helpful in the short term to fill gaps in
local and private sector capabilities to resolve ?OTW compliance problems.
To the extant that EPA capabilities in tnis regard exist at the present
time, however/ they snould not be expanded, bur should be reduced as
private sector capabilities mature.
Any technical or training assistance provided by S?A must be provided
in a manner compatible with our primary role as regulators. It should be
regarded as but one option available to the regulator in a particular case
and not as the sole option or the option of choice in all cases. The
inability to provide technical assistance in a given case or the failure
to achieve the required effluent limitations after the provision of such
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assistance should never preclude the use of »ore ceiianding regulatory.
options, where technical, assistance is provided, it sust be done in a
sanr.er that will not prejudice the Agency's case in a subsequent enforce-
nant action if the effluent 1-sitations are net acnievad aftar assistance
nas raen provided.
1 recognize tnat nsany people, both '-a thin and c-tsice tne Agency,
celieve that Z?A snould conduct a strong prcgrar. of tac-.r._cal assistance
to irdivicj-al ccT=sunitias in addition to its enforcement role. In tne
abstract, this proposition say appear attractive. As a practical .-.atter,
hcvever, an active assistance role confuses and undercuts the predominantly
regulatory role that the r.JPCA nas fashioned for tr.e Agency. Jioreover,
limitations on existing and forsseeaale resources ra.-:a it wholly unrealistic
to tninlc tnat */e have or could develop the capacity to provide tecnriical
assistance in any significant nu=user of cases as part of our national
program. Thus we have no cnoice out to accept our rola as being predcainantly
regulatory. Witnin tais context, we can and should conduct an active role
in manpower training, tecnnology transfer and tna dissemination of technical
assistance on a general basis ratner than an individual case basis.
I also specifically do not intend to restrict sy this nseans any
activities we =ay be able to undertake in tne neglected field of nanpower
•training.
In surssary, let ae sake clear tnat our philosophy tovard operating
POTtfs is regulatory and that the responsibility for iseeting applicable
permt requirements rests squarely on the PCTOs. To date the conpliasce-
assurance prograa nas been successful in securing ccrpliance froa industry.
It is our responsibility to ?.ake sure that it is equally effective in
securing compliance frora nunicipalo.tz.es.
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oTC/
/L'v
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II.A.3
"Confidentiality of NPDES Permit Applications" dated April 6, 1978 with
attached memorandum dated March 22, 1978.
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6 A
HSHORmoUH ' °
TO: Regional Addnlstrators
State KPDES Directors
FROM: Deputy Assistant AdniDlstrator for Water Enforcement (EH-335)
SUBJECT: Confidentiality of NPDES'Perait Applications
Attached Is a copy of a recent decision Issued by the Office
of General Course! walda requires that all Indorsation 1a H?D£S
parsit applications and perrlts be cade public. Please advise
your staff of this chaage so that Ic^leaentation can be unifors.
Jeffrey S. Miller
Attzc:
Regional Eaforessaent Division Directors
Regional Persits irasch Chiefs
JShaffer:»H1te;PD:EN-336:3l09 WSH:5-0750
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212-
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CLASS DiTZ?.u.IXAriON 1-7S
CONTIDSiTIALITY 0? INTORKASIOK IN NATIONAL POLLUTION DISCHARGE
SLdlNAXIOH SYSTZH ?S3±£I7S AND FS22CI APPLICATIONS UXD23. SECTION
402 (j) 0" TH2 TZDS2AL WAT-2. POLLUTION CONTROL ACT
Under the Federal Water Pollution Control Ace (FWPCA) , as amende
(33 U.S.C. 466 at sea.), the Environmental Protection Agency (£?A)
or counterpart State agencies issue national Pollucioa Discharge
Elimination S73tea (NFD2S) permits to individual sources of vater
pollution. This program is administered primarily ia £?A's Regional
offices. Those offices have asked for a Class Deteraiaaricn concern-
ing the confidentiality of information contained la KTDZS permits ar.d
persit applications la light of section 402(j) °f ch* ?W?CA. Undar
40 CJ2, 2.207, I have authority to issue Class Peterainations concert
the eonfidestiality of classes of inforsation obtained by SPA.
La the case of information contained in K?DES permit appiicatic:
and KPDZS permits, I have found;
1. Z?A possesses arid vill continue to acquire information in
K?D£5 permits aad permit applications.
2. The information contained in KFDES permits and permit applic
tions is of the same character. It is proper to - treat ill of the
information as in the same class.
3. A Class Determination vould serve a useful purpose in clari.
the status of potentially confidential information, contained in K?D2
permits and permit applications as restricted by section 4020") of T>
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2
I have determined chat information contained ia KPDSS perries -*
and K?3ES permit application is not entitled to confidential treat- "
seat because seetioa 402 (j) of the FB?CA mandates disclosure of thi*
information to the public aof-athstaadiag the fact thac it sight be
»
trade secrets or commercial or f*«aaiH^_l_ information.
Seetioa 402(j) of rW?CA states "[aj copy of each permit appliea-
tioa and each permit issued under this section shall be available to
the public. Such perait applicatioa or perait, or portion thereof,
shall further be available «poa request for the purpose of reproduction."
This language is differeat froa that ia section 308 of the FK?CA.
Seetioa 308 is the basic iaforaatioa gathering authority of the FW?CA.
Paragraph (b) of seetioa 303 states "[a]ay records, reports, or isfor-
/
aatioa obtaised uader this section.. .shall be available to the pubii
except upon a showing satisfactory to the Administrator by any person
that records, reports, or iaforsatioa, or particular part thereof (other
thaa efflueat data), to which the Administrator has access uader this
section, if sade public vould divulge aethods or processes eatitled to
protection as trade secrets of such person, the Administrator shall
consider such record, report, or information, or particular portion
thereof confidential ia accordance vith the purposes of section 1905 of
title IS of the United States Code...."
*" «
The inconsistency between the language of section 402(j> and that
of section 308 vas brought to the attention of the House Cc=ictee on
?ublic Works in a letter dated December 13, 1971, fros William Ruckel* -
Administrator of EPA. Congress chose to treat the information cavera
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MAR ZZ B78 orr.ccor
*" w OCMCflAU COUMSGU
SU2J2CT: Cfcafideatiality of KFDES ?er=it Applications
Joan Z.
General Coun
70: Thoeas C. Jorliag
Assistant Administrator for
Water and Hazardous Haterials 0*3-556)
Assistant Administrator
for Enforcement (SS-329)
Atrached is a Class Detezziaatlac I have issued concerning
stsrus of potentially easzideatial business inf omarlon contained in
K?D£S persizs asd STIES permit applicatioss. I have concluded that:
secsiaa 402 (3) of tie FK?Ci requires that N?D2S persits and peztd.£
applications be =ade pcblic norvithstanding the facr that sose of the
iaforsatica contained in thes would ochervise be treated as confi-
dential.
Class Deter=ination vill be used by this office and the
Sagissal Counsels la **'"•'-* final confidettialiry detersinations
under the regulations in 40 CT2, Part 2, Subpart 3. Any request for
confidentiality of information in a pa=it application or pemiu vould
be denied citing the Class Beter=ination. The applicant vould be
given 10 days notice prior to disclosure in which to seek a judicial
reaedy. At the end of the 10-day notice period the indorsation would
be cade available to the public.
An important part of implementing this Class Determination is to
'inforn the various IPA regions and State agencies of the decision. I
have informed the XegisczJ. Co.jr.sels of the Class Determination and of
the vay ia, vfeica it is to be i=?lesented. Tou vill need to infora
your counterpart offices in the Regions and the States.
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I think is is also important, that this be reflected in the K^
regulations, in the application foras, and in any iaforaacional
caterlais used by EPA to explain the NPDES program. *
Froa wbac Z have bees able to determine, this decision say be *
chaste frea past practice in the treatment of inforsados in N?D2S
per=it applications. I believe that in the past, saetioa 402(5) "as
overlooked, and cost offices treated information la KPDZS perais
applicatioss the saae as section 308 information. Accordingly, it
take tiae to bring everybody up to speed on this change.
If you have questions about hov your offices should ispleseac the
Class Deterainacios or other related mac tars, eon fact, Jaaas Kelson at
755-0794.
Attachaent
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It is clear fros the language of section 402(j) aad Che
legislative aistory of that provision tha: Congress intended sestio*
402(j) so b-e a disclosure eandate la contrast to the basic approach
of section 3C3 which provides protection for trade secret information.
Accordingly, S?A is required to make public NPDES permits aad K?D£S
permit applications.
The K?D£S permit application is a staadard form specified by EPA.
It asks the applicant to supply certain specific information. la
soae cases, there is insufficient space for the applicant co supply
all of the requested information. la those cases the applicant attaches
additional sheets vith the further information. For purposes of section
402 (j)t che K?D£S permit application required to be cade public is the
application form itself and any attachments that are used to supply
information requested by the application forn. Any information
obtained by Z?A chat goes beyond chat askec for in. the application»
vhether submitted by the applicant or obtained by EPA under authority
such as 40 CJ3. 125.13, is not considered part of the permit application
as contemplated by section 402(j). This additional information vill
be treated in, accordance vith the procedures of 40 CSS 2.302*
If-an-applicant has claimed as confidential any information
contained in the NPDIS permit application or the KPD2S permit, confi-
dential treatment vill be denied in accordance vith this Determination
and notice given to the applicant in accordance vith 40 CTSL 2.205(f).
/.
B^. aernstein Date
Genrral Counsel (A-130)
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3
by section 402 (j) differently froa the information obtained unde '
section 308. la all versions of the bill that became the J572
amendrsftats to FWPCA, the sane basic approaca of requiring public
disclosure-of NPDZS permits and persit applications vas followed.
Ike only amendments to section 402(j) vere to eliminate a specific
enumeration of the offices ia vhich copies would have to be kept.
la Seaate Report 92-414> October 28, 1971, at page 72» the Seaatc
Cosittee on Public Works cade the folloving cosseats:
la essential eleaeat ia any csatrol prsgran involving the
cation's waters is public participation, the public
=ust have a genuine opportunity to speak on the issue
of protection of its waters. The Coeaictae has therefore
established requirements to provide opportunity for public
hearing by the Tederal Government,,or if State participa-
tisn is approved by the Adsiaistracor, the State, acd other
provisions to sake available to the public all relevant
indorsation surrounding a discharge source and the, control
recuireaeats placed on it. This includes the deposit of
asy persit, and the conditions thereto, ia a place of ready
public access. The scrutiny of the public and the exercise
of authority under this section is extreaely important to
insuring expeditious implementation of the authority and a
high level of performance by all levels of government and
discharge sources.
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II.A.4,
"Certification and Permitting of Dischargers Located on Waters Forming
Boundaries Between States", dated April 19, 1978.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON DC 20460
APP 19197B
MEMORANDUM
TO:
OCNCftAU COUNSEL
'
FROM:
Assistant Administrator for
Enforcement
Regional Enforcement Directors
NPDES State Directors
Joan Z. Bernstein
General Counsel (
SUBJECT: Certification and Permitting of Dischargers Located
on Viatel s Forming Boundries Between States
QUESTIONS PRESENTED
When a facility is located within one State , but the end
of the discharge pipe is located within the waters of another
State, which State has certification rights pursuant to
Section 401 of the Clean Water Act ("The Act")? If tne Section
*Q2 NPDES permitting authority has oeen transferred oy the
Administrator to the States, which State has the 402 permitting
authority?
FACTS
On February 16, 1978, the Atomic Safety and Licensing
Appeal Board of the Nuclear Regulatory Commission issued a
decision which interpreted Section 401 of the Act. The
Board determined that the proper State to issue a certifica-
tion is tne State which nas jurisdiction over the navigable
waters in which the discharge originates rather than the Stats
in vnich tne facility is located. The Board noted that:
"we are prepared to give substantial weight
to the interpretation given a statute by the
agency Congress entrusted with its administra-
tion. In this case, we acknowledge that EPA
is that Agency with respect to the Water Act.
But EPA has not specified how Section 401
controls the outcome of the issue
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before us. We are, therefore, left to do
so ourselves." (PUBLIC SERVICE COMPANY OF
INDIANA, INC., Docket Nos. STN 50546,
STN 50-547, slip op. at 20-21, footnotes
omitted).
On February 28, we received a letter from the attorneys
for the Public Service Company of Indiana requesting that we
address the legal issue which is before the NEC. In addition,
we had informal communications with representatives from the
NRC staff and the Commonwealth of Kentucky similarly request-
ing that we address the issue. On March 20, we wrote the
Secretary of the NRC and notified him that we would prepare
a legal opinion on the 401 certification question.
The proposed Marble Bill Nuclear Generating Station will
oe located in Indiana. Its discharge will enter the Ohio
River, which forms the border between Kentucky and Indiana.
Apparently, the precise oorder is located at the low water
mark on the Indiana side of the river.I/
The legal question raised is of significance to
tnis Agency because there are 29 rivers in the United States
that are boundaries between two States. While the boundary
line between the States is usually the midline or thread of
tne channel of the stream, this is not always the case. For
some rivers the boundary line is the high-water mark or low-
water mar* on one side of tne river.
The boundary line creates questions not only in regard
to certification under Section 401 of the Act but also in
regard to the question of which State has the permitting
authority under Section 402 of the Act. In this opinion
we shall address both issues.
ANSWER
The State in whose waters the discharge originates is the
certifying authority pursuant to Section 401 of the Act.
Section 4Ql(a)(l) provides that whenever the construction or
operation of a facility "may result in any discnarge into the
navigable waters", the certifying State shall be the one
I/ There is a factual question as to whether the discharge
originates in Kentucky ot Indiana waters. As noted in our
March 20 letter, we shall not address this factual question.
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"in wnich the discharge originates or will originate." While
it might be argued that a discharge of pollutants actually
11 originates" where the manufacturing or industrial facility
is located, rather than at the end of the discharge pipe,
tne entire structure of tne Clean Water Act, its legislative
history, and intent clearly establish that the State whose
waters are affected by the discharge is the proper certifying
State.
Similarly, the State in whose waters the discharge or-
iginates is the Section 402 permitting authority. Section
402(b) provides that a permitting State shall "administer
its own permit program for discharges into navigable waters
within its jurisdiction."1
The State in which the facility is located has rights
pursuant to Section 401(a)(2) and Section 402{b)(5) only
to the extent that the quality of its waters is affected
oy the discharge.
DISCUSSION
The Clean Water Act is a comprehensive statute designed
to reduce and ultimately to eliminate the discharge of pollu-
tants into the nation's waters. Tne Act provides for a deli-
cate partnership between the Federal government and the
States in achieving tnis result. A major responsibility
of tne Federal government under tne Act is the development
and promulgation of uniform national technology-based stand-
ards for categories and classes of industrial dischargers.
At the same time, the States are granted the authority (with
Federal support and in some cases oversight) to institute
a range of more stringent, more comprehensive requirements
to assure protection of the navigaole waters within each
State.
Pursuant to Section 510 of the Act, the States are
empowered to develop more stringent water pollution control
requirements than those developed by EPA. Section 510(2}
also explicitly retains tne authority of each State to control
the waters within its jurisdiction.
In addition to these general powers, the Act provides
that States shall have a series of rights and responsibilities
based upon tne State's jurisdiction and control over waters
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of the United States. Section 208(a)(2) of the Act requires
a State or its designated areawide agency to develop compre-
hensive pollution control plans for areas of the State which
nave "substantial water quality control problems." Clearly
the State whose waters are affected must take the lead role
in devising a plan to protect its waters.
Under Section 303 of the Act each State is required to
develop water quality standards for all waters within its
jurisdiction. Such standards consist of a designated use/uses
of the stream (e.g. "protection and propagation of fish and
wildlife") and criteria necessary to support the use, (e.g.
"not less than 5 mg/1 of dissolved oxygen"). Prior to the
passage of the 1972 Amendments, such water quality standards
were the ma:or water pollution control mechanism under tne
Federal law. See State Water Control Board v. EPA, 426 O.S.
200, (1976). While tne role of water quality standards was
somewhat diminished by the 1972 Amendments, the standards
form a ma]or basis for numerous State and Federal programs.
The difference between the designated standards and the actual
ambient water quality may provide the basis for Section
2uo planning. Unaer Section 303(d) of the Act, States must
identify those streams where tne federal technology-cased
standards are insufficient to meet the designated water
quality standards. The states are required to develop maximum
daily loads for such streams and to develop more stringent
effluent limitations which will achieve the standards as
part of tne continuing planning process under Section 303(e).^
These State plans, laws, regulations, and other require-
ments are translated into limitations applicable to individual
point source dischargers tnrough the NPDES permit program
pursuant to Section 402 of the Act. And under Section 208(e)
of tne Act, no permit can be issued which is in conflict
with an approved 208 plan. Under Section 301(b)(1)(C), a
discharger must achieve by July 1, 1977, any more stringent
limitation necessary to meet the requirements of State law,
27In addition, Section 305(b) requires each State to
"submit biannually a report describing the water quality
of all navigable waters within the State and the steps
wnich will be taken to improve water quality.
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including water quality standards. The 402 permitting authority
is required to assure that permits are consistent with
Sections 206(e) and 301{b)(1)(C), and thus consistent with
the requirements of State law including State water quality
standards and limitations developed pursuant to such standards.
Section 401 of tne Act provides another mechanism to insure
that NPDES permits (as well as other Federal licenses and
permits) meet the requirements of state law, particularly
State water quality standards. Section 401 has its origins
in Section 2Kb) of the Water Quality Improvement Act of
1970, April 3, 1970, P.L. 91-224, 84 Stat. 91. This provision
required that any applicant for a federal license or permit
which might result in a discharge into navigable waters must
provide tne permitting authority with a certificate from the
State in which the discharge originates or will originate
that:
"There is reasonable assurance, as determined
by the State or interstate agency that such
activity will be conducted in a manner which
will not violate applicable water quality
, standards."
Section 21(b)(l) also provided that if the standards had
seen promulgated by the Secretary of the Interior, the certifica-
tion should be from the Secretary. Section 21(b{9) further pro-
vided that if there were no applicable water quality standards,
no certification should be required. Section 2Kb) therefore re-
cognized that the appropriate certifying authority is that which
has developed and implemented water quality standards for the wat«
body into wnich the discharge originates, since only the author it;
that develops and implements the standards could provide the "rea-
sonaole assurance" that the standards won't be violated.
The substance of Section 2Kb) became Section 401 of the
1972 Federal Water Pollution Control Act Amendments. The
State was no longer required to directly certify that its
water quality standards would be met by the permit, but
was instead required to certify that the discharge would
comply with "the applicable provisions of Sections 301,
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302, 30b and 307 of this Act.'V It is cleat from the
legislative nistory of the 1972 Amendments that the raa;jor
purpose of Section 401 was to allow a State to assure that
its water quality standards would be met.
As noted in the Senate Report:
"The purpose of the certification mech-
anism provided in tnis law is to assure
that Federal licensing or permitting agencies
cannot override State water quality require-
ments . *
A Legislative History of the Water Pollution Control Act
Amendments of 1972, Senate Committee on Puolic Works/ Com-
mittee Print, 93rd Cong. 1st. Sess., 1973 (''Leg. gist.")
at 1437.
In nis statement on the Conference Bill, Senator Muskie
furtner explicated this concern:
"If a State establishes more stringent
limitations and/or time schedules pursuant
to Section 303, tney snould be set forth in
a certification under Section 401." Leg.
Hist, at 171.
_3/ Section 401 was amended by the Clean Water Act of 1977
to include Section 303 in tne list of enumerated sections.
As stated in the Conference Report:
The inserting of Section 303 into the
series of sections listed in Section 401 is
intended to mean that a federally licensed or
permitted activity, including discharge permits
under Section 402, must be certified to comply
with State water quality standards adopted under
Section 303. The inclusion of Section 303 is
intended to clarify the requirements of Section
401. It is understood that Section 303 is re-
quired by the provisions of Section 301 . . .
Section 303 is always included by reference
where Section 301 is listed. (House of Repre-
sentatives, Report No. 95-830, 95th Cong. 1st
Sess. Oecemoer", 1977 at 96)
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III. ADMINISTRATIVE
A. ADMINISTRATIVE COMPLIANCE ORDERS
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III.A.I.
"Effect of Compliance with Administrative Orders", dated June 1984.
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I UNITED STATES EN'VIRO MENTAL r»O'ECTlDN AGENCY
t
. D C 2P-60
er
MEMORANDUM
SUBJECT: Effect of Compliance With
Administrative Orders
FROM. Colburn T. Cherney^'j
Associate General'iCouss
Kater Division
TO: Rebecca Hanaer, Director
Office of -Water Enforcement
and Peraits (EI\-335)
In a June 5, 1984 memorandum, you asked whether compliance
vi th an adninistra'tive order precludes, as a natter of lav,
further enforcecent action on the underlying violation.
Such compliance aoes not preclude enforcement. See, e_._g. ,
United States v. Earth Sciences, 599 F.2d 368, 375-76 (10th
Cir. 1979). However, the administrative order, and the
discharger's compliance with the order, are factors that are
likely to be assigned significant weight when the reviewing
court fashions a remedy in the enforcement action.
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III.A.2.
•'Use of Stipulated Penalties in Administrative Orders on Consent under the
CWA", dated September 6, 1985.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D C 20460
6 iS85
OJF1CE OF FNI-ORCEMENT
AMMOMPLUNCE
MUMTORINC
MEMORANDUM
SUBJECT: Use of Stipulated Penalties in Administrative
Orders on Consent under the Clean Water Act
FROM: Glenn L. Unterberger
Associate Enforcement Counsel
tor Water
TO: Paul A. Seals
Regional Counsel, Region VI
I am responding to Region VI 's request for specific guidance
on whether the use o£ stipulated penalties in administrative
orders is perraissable under the Clean Water Act, Section 309.
After extensive legal research by both my office and the
Otfice of General Counsel, and consultation with the Department
of Justice, it is our judgment that, as a matter ot policy, EPA
generally will not include stipulated penalties in administra-
tive orders on consent under the Clean Water Act. The one
exception to this policy (which probably has limited practical
effect) is that EPA may consider using administrative orders
on consent with a provision for stipulated penalties under the
following terms:
1) that stipulated penalties provided for in an
administrative order on consent (possibly though
a confession of judgment clause) are collectible
only through the commencement of an enforcement
action for violations of the order and the
statute or permit in federal district court, and
2) tnat any such order shall also provide that,
irrespective of the penalty amounts so stipulated
or confessed in judgment, the government shall
reserve tiie right to seek whatever penalty amount
it deems appropriate in an action to enforce the
terms of the order and will not be bound by the
amounts stipulated.
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By tnis approach, we remove any doubt of the enforceabilit
of the terms of the order by retaining the responsibility for
imposing civil penalties or other appropriate remedies with
the court as explicitly authorized in CWA Sections 309 (b) and
(d). In doing so, we also act consistently with the letter of
28 U.S.C. §§516 and 519 and the spirit of the Memorandum of
Understanding between EPA and the Department ot Justice that
the Department settles and compromises claims ot the United
States which EPA is to bring through litigation. Also, the
reservation clause ensures that if additional violations or
other pertinent facts come to light atter the AO on consent is
entered into, tne government will not be limited to the penalties
contained in tne AO.
If a Region chooses to employ the practice where the
requisite criteria can be met, Lt should be done on a highly
selective basis and only when, in the opinion of the Regional
office, an administrative order without these stipulated penalty
provisions will not result in final compliance as quickly or
as well.
Since orders on consent with stipulated penalties are
inherently more complex than traditional administrative orders
and involve negotiations which may affect subsequent judicial
enforcement actions, the Office of Regional Counsel must be
involved from the outset, if their use is contemplated.
The above guidance may be short-lived, since tne proposed
amendment to the Clean Water Act giving EPA administrative
penalty authority, if passed, will also probably give us "stronger
authority to use stipulated penalties in consent AOs. Should
the administrative penalty authority amendment be enacted,
we will develop guidance on the use of such authority, with the
expectation that stipulated penalties in consent AOs meeting
certain procedural preconditions probably will be acceptable.
cc: Associate Enforcement Counsels
Regional Counsels
Bill Jordan
Coke Cherney
David .Buente
OECM-Water Attorneys
-------
III.A.3
"Remittance of Fines and Civil Penalties" dated April 15, 1985. See GM-38.
-------
X"
/'
-------
III.A.4.
"Recommended Format for CWA Section 309 Administrative Orders11, dated July
30, 1985 (Incorporated in III.A.5).
-------
-------
III.A.5,
"REFERENCE DOCUMENT ON GUIDANCE AND PROCEDURES FOR ADMINISTRATIVE ORDERS
ISSUED UNDER SECTION 309 OF THE CLEAN WATER ACT" dated September 26, 1986,
Cover Memorandum, Table of Contents and Section I only.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. OC. 20400
SEP 49 1386
OFPIC* Of
WATCH
MEMORANDUM
SUBJECTS Reference Document on Guidance and Procedures for
Administrative Orders Issued under Section 309 of the
Clean Water Act
FROM: Jan w^R^Toeri Director
e of Water Enforcement and Permits (EN-338)
TO: Water Management Division Directors
Regions I-X
*
The attached Reference Document on Administrative Orders was
recently completed by the Enforcement Division, Office of Water
Enforcement and Permits, to address varied questions that may arise
on Administrative Orders (AOs) authorized under the Clean Water
Act. It is designed to provide, in one location, all pertinent
information on the preparation and implementation of AOs. the
attached Reference Document we believe, contains all pertinent
guidance and procedures needed for day to day operations and for
compliance activities relating to administrative orders.
This project continues our effort to produce manuals and
centralized reference material for all personnel involved in the
development and tracking of enforcement actions. It should be
noted that the contents such as the descriptions of procedures
relating to tracking and processing of AOs may change over the 'next
few years, and will therefore need to be updated. We will notify
__ you as changes are made.
We would like to thank all those parties from the Regional
Offices and the Office of Enforcement and Compliance Monitoring for
their comments and the extensive reviews they provided. In addition
if you have questions or comments on the content, or if you believe
we have missed some information that would make this a more compre-
hensive document, please contact Bill Jordan, Director, Enforcement
Division (FTS/475-8304) or Virginia Lathrop, on his staff (EN-338),
(PTS/475-8299).
Attachment
_ ccx Glenn Unterburger, OECM
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REFERFNfE DOCUMENT
Guidance and Procedures for
ADMINISTRATIVE ORDERS
Issued under Section 30<»
o* the Clean Water Act
29,
-------
PFFEPEWF DOCUMENT - Guidance and Procedures for Administrative
Orders Issued Under cection 309 of the Clean f'at-er *cf
r. Guidance
A. Recommended Format ^or Administrative Orders (A
-------
SECTION I
GUIDANCE
-------
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C 20460
JUL301985
MEMORANDUM
SUBJECT tx—flecomraended Format for Clean Water Act
• faction 309 Administrative Orders
|\|I
Re
I
FROM* Rebecca W. Hanmer* Director
Office of Water Enforcement and Permits (EN-335)
TOs Water Management Division Directors
Regions I - X
One of the most frequently used Environmental Protection
Agency mechanisms in the formal enforcement process is the
Administrative Order (AO) issued under Section 309 of the Clean
water Act. It is our belief that AO's should be used in a
consistent and effective manner since they are a major part of
the enforcement scheme. For this reason, the Office of Water
Enforcement and Permits has undertaken an effort to assess AO
content and format during the past year. The outcome of that
assessment was the draft Recommended Format for Administrative
Orders forwarded to you on May 9, 1985* We have received
comments and suggestions from several Regions which were utilized
in preparing the final documents. Attached you will find the
final Recommended Format for Clean Water Act Section 309
Administrative Orders (Attachment 1).
The Recommended Format wa« developed with the cooperation
and assistance of the Office of Enforcement and Compliance
Monitoring. The purpose of the Recommended Format is to provide
a general guide which delineates (1) the specific statutory
requirement* (such as the requirements of Section 309UM4) on
opportunity for a recipient to confer with the Administrator
on violations based on failure to submit information); an*
(2) options and suggestions on format for Administrative Orders
(such as the option of including violations in a separate
section after Findings of Fact). The Recommended Format,~as
utilised by the Regions* should result in more effective and
even-handed national enforcement through Administrative Orders.
I-A-l
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In addition to th* Recommended Format* we are forwarding the
Checklist oft Adainistrative Orders (Attachment 2). The Checklist
should be used for revxewing EPA and State-issued AO's. There
obviously be some variation among States with regard to AC'S?
however, the use- of a Checklist should assure that the state-issued
AO's are complete and enforceable*
•
The new guidance replaces a document dated April 18%-1-975
that was developed by the Office of Water Enforcement*- it should
be noted that the statute was revised twice since 1975. in
particular, the new guidances discourages use of successive AO's
for the same violation; clarifies which legal authority (e.g..
Sections 308 and 309) EPA should cite as the basis for certain
requirements imposed through an AOi clarifies the scope of require-
ments which EPA may impose through AO'sj identifies sanctions
available for AO violations; and sets out sample provisions
which AO's should include to clarify the legal effect of the
Order.
In the coming fiscal year, the Office of Water Enforcement
and Permits, with extensive coordination with the Office of
Enforcement and Compliance Monitoring (OECM), will develop further
information on the use of Section 309 Administrative Orders. Some
of those documents will covert use of AOs on consent (bilateral
and joint signature)! principles for negotiation of bilateral
orders especially for National Municipal Policy; use of multiple
AO's and alternatives to AO's for the same facility when an AO
is violated? and increased use of Section 304 to require information
(including use of show cause proceedings).
If you have any specific questions on the above, please
call me (FTS-475-8488) or Bill Jordan, Director, Enforcement
Division (PTS-47S-8304). The staff contact is Virginia Lathrop
(FTS-475-8299).
Attachments
I-A-2
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ATTACHMENT 1
Recommended Format for Clean Wattr Act Section 309
Administrative Orders
The following is the recommended format and content for an
Administrative Order (AO). Examples and suogested wording are
included at various points in the discussion and in the sairole
AO (Attachment 1-0). Adherence to the Recommended Format should
result in more effective and evenhanded national enforcement
through Administrative Orders.
Introduction
The following should be followed for the venue* title,
docket identification and preamble paragraph.
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION ___
IN THE MATTER OP DOCKET NO. XI-R4-OC
Wastewater Treatment Works 14
Sludne River Pollution Control District
Sludge Palls* Columbia
PROCEEDING UNDER SECTION
309(a) of the
Clean Water Act, 33 U.S.C. FINDINGS OP VIOLATION
Section 1319(a); in re AND
NPDES PERMIT No. ______ ORDER POR COMPLIANCE
"The following FINDINGS are made and ORDER issued pursuant
to the authority vested in the Administrator of the United States
Environmental Protection Agency (EPA) under Section 309 of the
Clean Water Act* 33 U.S.C. $1319, (hereinafter the Act) and by
him delegated to the Regional Administrator of EPA, Region XI
(and redelegated by the Regional Administrator of Region XI to
the Director, Water Management Division, Region XI)*"
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Venue and Title
The Region identification is included to establish the
specific venue of the issuing authority. The Cull address of
the Region is to be in the letterhead or under the Regional
Administrator's (or his designee's) signature to the Order and
on the blue back cover (which is optional).
Docket Number
To identify the proceeding* a docket number is required.
To avoid confusion, the NPOES number should not be used as the
Docket lumber. However* the NPDCS number* if any* should be
referred to under the proceedings identification in the title.
The docket number 'XI-84-06" identifies the Order as being the
6th Order issued in 1984 in Region XX. An Administrative Order
docket should be kept separate from any other docket. However,
if a common docket is kept then a prefix should be added to the
docket number, e.g.* "XI-AO-84-06".
Preamble Paragraph
*
The preamble paragraph is important not only to establish
the Administrator's authority to issue the Order but also to
establish the delegation of authority to the Regional Administrator.
If the Regional Administrator has redelegated his authority to
the Director of the Regional water Management Division* this
redelegation should also be stated here or in the preamble to
the Order portion of this document. It should be noted that
there is no authority to redelegate this authority to other EPA
Regional staff below the Division Director level. If the
redelegation is asserted here* the paragraph should be amended
by addings
"... and redelegated by the Regional Administrator of
Region XI to the (undersigned) Director* Water Management Division,
Region XI".
The Administrative Order can be signed by a duly authorized
Acting Regional Administrator or Director. However* the Agency
should be prepared to show that the person signing as Acting
Regional Administrator or Director has the requisite authority
to sign the Order.
I-A-4
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*
FINDINGS OP FACT
The findings should adequately s«t forth the specific permit,
statutory (and regulatory)* requirements violated and the specific
nature and dates of the violations. In order to avoid difficulty
in determining from the face of the Findings whether- the order
was necessary and timely, and the remedy was appropriate, the
Findings and Order should be able to stand without reference to
extraneous facts. The Findings should speak to all tfhe pertinent
facts and law much as a complaint in a civil action does. With
these observations in mind, the following recommendations are
made as to the specific facts to be alleged in the Findings.
Status of Violator
Findings of Fact should first identify fully the entity to
whom the order is to be issued and define its legal status
(i.e., corporation, partnership, association, state, municipality,
commission or political subdivision of a state). Clearly
identifying the orderee limits the possibility of challenges to-
jurisdiction or venue and establishes a record upon which
subsequent enforcement actions may rely* The Findings should
next establish the orderee's status under the Clean water Act,
(I.e., permittee, industrial user, control authority, etc.) and,
in the case of permittees, the permit number, date issued, and
current permit status. The Findings should name the receiving
stream into which the violator discharges and should establish
the violator discharges to "navigable waters* under Section
502(7) of the Act through a specific point source as defined in
Section 502.
*asis of Violation*
Section 309(a)(5)(A) requires that all orders ". . . should
state with reasonable specificity the nature of the violation
. . . ." it is imperative that the Findings contain the specific
permit provision or statutory or regulatory requirement which
has been violated and the authority by which it was imposed on ,
the orderee. Next, the evidence or basis for the specific
violation (such as DMR, inspection report, AMR) and dates of
violation should be set forth concisely. In cases of more than
one violation, identify what the documentation is for each and
give the specific dates of violation. (In instances where only
approximate) date* are known or where there is a continuing
violation say "on or about" or "beginning on or about".I
Alternatively the violations may be set off in a separate section
entitled "Violations" which can follow the "Findings of Fact."
An AO should not set out a regulatory requirement that was violated
without setting out the underlying statutory requirement. The
Section 309(a)(3) authorizes AO's for violations of permit anrt
statutory provisions.
I-A-S
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Where the) violation is based on a failure to provide required
information, a finding can usually only state that the requited
information was not received by the agency. In those cases, the
lack of receipt of the required information must serve as -the
basis of the violation. Section 308 violations have additional
requirements as described below*
CWA section 308 Violations
Administrative Orders issued for violations based on a
failure to submit information requested under Section 308 of the
Act do not take effect until the person to whom it is issued has
had an opportunity to confer with the Administrator (or his or
her designee) concerning the alleged violation. (See CWA
Section 309(a)(4)). It is essential that such person be provided
with a reasonable opportunity to confer. Any order issued for a
Section 308 violation either exclusively or in conjunction with
other violations should provide for a period of time in which
the orderee may confer with an authorized person designated in
the Order* If an opportunity has been provided prior to the
issuance of the order* the order should so state and set forth
the documentation of the opportunity to confer and the outcome
of the conference* if any.
Prior Enforcement Contacts
Administrative Orders frequently set forth prior contacts
with the orderee in an attempt to obtain compliance. Generally,
this is a good practice since it helps to build a record and may
provide additional support in any subsequent enforcement action.
This can be done by cataloguing the meetings* letters* telephone
calls* etc.* made in an attempt to secure, voluntary compliance
or by stating that repeated attempts were made. The repeated
attempts may be set out in an attached summary or log of meetings-,
notices* letters* and telephone calls and dates thereof* along
with dates of responses from the orderee* if any (see Attachment
1-A>.
Other Findings
In certain circumstances it may be necessary or useful to
include other findings which are supportive to the specific
requirements of the order (e.g.* "the company's treatment works
are currently capable of meeting the effluent limits contained
in its permit* or "the POTW has adequate authority to enforce
the categorical pretreatment standards"), whether or not to
include such statements must be determined on a case by ca-se
basis but* if included* should be incontrovertible facts.
I-JV.-6
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ORDER FOR COMPLIANCE
The format for the Order should be as follows:
Order
•Based on the foregoing FINDINGS and pursuant to th* '
authority vested in the Administrator, environmental Protection
Agency* under Sections 308 and 309(a) of the Act* and* by him
delegated to the undersigned (or if the Regional Administrator
redelegates his authority to the Division Director* add* after
•of the Act* - "and by him delegated to the Regional Administrator,
and redelegated to the undersigned")* it is hereby ordered:*.
Xf the delegation statement is stated in the Preamble* this
statement may simply bet **ased on the foregoing Findings* and
pursuant to the authority of Sections 308 and 309(a) of the Act*
it is hereby ordered:"
Terms of the Order
Section 309(a)(l) and (a)(3) authorizes the Administrator to
issue an order requiring compliance with enumerated sections of
the Act or a condition* limitation or permit requirement implement:
the enumerated sections of the Act. Any requirement contained in
the order must be directly related to achieving that compliance
with those legal requirements. The terms of the order must set
forth what EPA specifically expects the Orderee to do in order to
achieve and maintain compliance.
Section 309(a)(5)(A) sets forth the time periods by which
the orderee must comply. In cases of an interim compliance
schedule or an operation and maintenance requirement the time
for compliance may not exceed thirty days. In cases of compliance
with a final deadline* the time for compliance must be "reasonable1
as determined by the Administrator* taking into consideration
the seriousness of the violation and past efforts of the orderee.
Every order must contain a specific final date by which the ordere*
must achieve compliance (i.e., cease its violationfs)) consistent
with the statutory language.
Although some Orders have included a prescribed method by
which an orderee is to achieve compliance, specific prescribed
steps or methodologies (such as a treatment technology) may be
difficult to enforce* Because Section 309 specifies in explicit
terms only that AO's require compliance by a date certain the more
closely a requirement in the AO is related to actually achieving
compliance* the sounder the legal position to include that require-
ment. Section 308 of the Act can provide substantial *up.port in
this area by requiring reporting of the specific steps or methods.
I-A-7
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Th* Order* containing interim milestones leading to final
compliance should include reporting requirements under Section 308
The order should specify the manner and timeframe for reporting
compliance with the terms of the order to the issuing authority.
The order should contain requirements for reporting an the'
compliance progress and submitting suitable documentation to
show the Orderee has taken action to meet the AO requirements.
The attached sample AO sets forth sample language on order
requirements (Attachment 1-D), as well as a sample blue'back
(Attachment 1-C) and cover letter (Attachment 1-1).
AdditionalProvisions
It has been the long term practice of many of the Regions
to include standard provisions regarding additional remedies*
nonwaiver of permit conditions, etc., in all administrative
orders or as part of the cover letter accompanying the AO. This
practice should be used by all the Regions for every order issued,
In addition to promoting national consistency, it alerts the
violator to the array of sanctions which could be used should
additional enforcement be necessary and helps encourage compliance
with the Order as issued.
The following; are sample provisions which should be added to
Administrative Orders singly or in combination and may be modifiec
based on the particular facts of the case. They may also be
included in the cover letter.
Non Waiver of Permit Conditions:
"This ORDER does not constitute a waiver or a modification
of the terms and conditions of the Orderee's permit which
remains in full force and effect. EPA reserves the riaht
to seek any and-all remedies available under Section 309(b)
(c) or (d) of the Act for any violation cited in this ORDER'.'
Potential Sanctions for Administrative Order Violations
(for Non-Municipals)s
•Failure to comply with this ORDER or the Act nay result in
civil penalties of uo to 510,000 per day of violation,
ineligibility for contracts* grants or loans (Clean Water
Act, Section 508) and permit suspension."
General Disclaimers*
•Issuance of an Administrative Order shall not be deemed an
election by EPA to forego any civil or criminal action
to seek penalties, fines* or other appropriate relief under
the Act."
I-A-a
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r
•Complitnct with the terms and conditions of this ORDER
shall not be construed to relieve the orderee of its
obligations to comply with any applicable federal, state
or local law.*
Administrative Action Resulting in Xneligibiiity foi federal
Contracts, Grants or Loans:
•Violations of this order may result in initiation of Agency
action to prohibit the facility from obtaining Federal
contracts, .grants, or loans pursuant to Clean Water Act,
Section 508, E.O. 11738, and 40 CFR Part 15.•
Effective Date of the Order
When the Order does not address a violation of a requirement
to orovide information under Section 308, the ORDER can merely-
recite thatt
•this ORDER shall become effective upon its receipt by (or
service upon) said COMPANY."
For Section 308 violations where an opportunity for conference
before the ORDER can become effective is reouired by section 309
and this was not done prior to the issuing of the ORDER, the
last paragraph should read:
•The COMPANY shall have the ooportunity, for a period of
( ) days from receipt of this ORDER, to confer with
the following designated Agency representatives Mr. N. Force,
Director, Water Management Division, Environmental Protection
Agency, Room 5013, Region XI, Old National Bank Building, 1414
Main Street, Brewsterville, Cantralia, 11101, (555) 123-4567;
unless the Agency official issuing the Order decides otherwise,
this ORDER shall become effective at the expiration of said
period for consultation; and, the COMPANY shall have
(_) days from and after said effective date to comply with the
terms of this ORDER* To constitute compliance, material required
to be submitted by the COMPANY to the Agency must b« in the hands
of the designated Aoency representative prior to the expiration of
said _ (_J day period."
Signing of the Order
When the Order is dated and signed, the name of the signing
official (Regional Administrator, or Director, Water Management
Division) should be typed below the signature, together with
the address of the Regional office.
I-A-9
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Other Considerations
The use of legal blue-back at least on the primary copy of
the Findings and Order served, while not necessary, tends to
impress upon the person served of the legal seriousness of,the
action being taken. Attachment 1-C provides a proposed format and
content of the legal blue back. When a Order £s issued to a
Corporation, a copy of the Order shall be served on appropriate
corporate officers. * - ~
As in court actions, the order should be retained and nlaced
in a permanent file with the Docket Clerk* along with the affidavit
or certification of service attached. If service is made by
certified mail restricted delivery, a carbon copy of the letter
of transmittal, together with the Post Office mailing receipt
and the return receipt, when returned, should be stapled to the
front of the original Order, just as a return of personal service
would be.
Follow-up and Pile Closing
As good housekeeping practice, and more importantly, from
the standpoint of possible reference for or evidence in future
administrative or court actions, it is important that every file
contain, at the minimum, a closing memo to the files delineating
the final disposition of the matter." (The AO will only be closed
out when the facility has returned to compliance or when aporopri.
EPA action is taken, i.e., escalating the enforcement response.T
When a file is closed out, a brief letter should be sent to
the orderee with a carbon copy to Headquarters advising that the
action has been completed* Attachment l-E is an example of what
a close out letter might look like.
I-A-10
.
<
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ATTACHMENT 1-A
Prior Contactswith Orderee
Despite repeated written and telephone renuests, as more fully
set out in the log attached as Exhibit _ and made a part hereof
by reference, the COMPANY, in violation of Section 308 of the
Act, has not supplied the requested information.
LOG SAMPLE
s
12/04/83 DMR data showed significant noncompliance
(memo from X. Amin to file).
12/07/84 308 Letter sent to Company.
12/10/84 Plant Visit: Some data from inspection
(by N. Spector).
04/23/84 Telephone - N. Force to Company. Follow-up
requests for information on recent DMR from
Company. No information sent.
04/24/84 Telephone - N. Force to Company. To request
additional data by phone from Company. No
information obtained.
05/06/84 Note filed by N. Force - No letter or further
information fron Company.
I-A-U
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ATTACHMENT l-
Pebruarv 21. 1985
CERTIFIED MAIL -
RETURN RECEIPT REQUESTED
Ms. Alice Smith, Director • .
Sludge River Pollution Control
District
13 Plain Street
Sludg* Falls. Columbia 12345
RE: NPDES Permit No. CL0003456
D«ar Ms. Smith:
Enclosed is an Administrative Order issued to the Sludge River
Pollution Control District (SRPCD), by the Regional Administrator
of the Environmental Protection Agency ("EPA*), Region XI, under
Sections 308 and 309 of the Clean Water Act (the "Act"). The
Regional Administrator has found that the SRPCD has violated
Section 301 of the Act by failing to comply with certain
reouirements of its National Pollutant Discharge Elimination
System permit. Snecifically, during 1984 SRPCD consistently
violated its effluent limitations on ammonia and phosphorus and
intermittently violated effluent limitations for biochemical
oxygen demand and total suspended solids.
The Order* which is effective upon receipt, seeks to remedy the
violations by requiring SRPCD to submit a plan for meeting its
effluent limitations and requiring SRPCD to then implement the
plan and comply with its effluent limitations.
This Order doe* not modify your current NPDES permit; nor will
compliance with the Order excuse any violation of the permit.
Failure to comply with the enclosed Order may subject the District
to further enforcement action. EPA nay initiate a civil action
in federal district court for violations of an Order seeking
injunctive relief and civil penalties*
If you have) any questions concerning this natter, please contact
Mr. Jones* an engineer in the Permit Compliance Section, at
222-3922.
Sincerely yours*
Prudence Purewater
Regional Administrator
Enclosure
cc: State Division of Water Pollution Control
State Deoartment of the Attorney Ceneral
I-A-12
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ATTACHMENT l-C
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REG ION
IN THE MATTER OF
SLUDGE RIVER POLLUTION CONTROL
DISTRICT
SLUDGE FALLS, COLUMBIA
PERMITTEE*
NPDES PERMIT NO. CL0003456*
PROCEEDINGS UNDER THE CLEAN
WATER ACT
AS AMENDED (33 U.S.C.
1319UM3})**
FINDINGS OF VIOLATION
AND
ORDER OF COMPLIANCE
Issued by:
Prudence Purewater
Regional Adnimstrator
Environmental Protection Agency
Region XI
Federal Building
Hokum, Central!* 12345
* Where Permit has been issued.
** May also have proceeding under
33 USC 1318.
I-A-13
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ATTACHMENT l-
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION XI
IN THE MATTER OP ) DOCKET Number AO-ftS-U
)
Sludge River Pollution ) FINDINGS OP VIOLATION
Control District )
Wastewater Treatment Works 14 ) AND -
)
NPDES Permit No CL003456
ORDER POR COMPLIANCE
Proceedings under Section
309U) of the Clean Water Act,
33 U.S.C. Sl319(a)
STATUTORY AUTHORITY
The following FINDINGS are made and ORDER issued pursuant to the
authority vested in the Administrator of the Environmental Protec-
tion Agency ("EPA") by Section 309 of the Clean Water Act* 33
U.S.C. 51319, (the Act), and by the Administrator delegated to
the Regional Administrator of EPA, Region XI.
FINDINGS
1. The Sludae River Pollution Control District (the "District")
is a political subdivision of the state organized under the
laws of the State of Columbia and as such is a "person"
under Section 502 of the Act, 33 U.S.C. 51362.
2. The Sludge River Pollution Control District is the owner
and operator of a wastewater treatment facility which provides
advanced treatment to wastewater from the Towns of Locus and
Sludge Palls. The facility discharges pollutants into the
Sludge River, a navigable water of the United States as
by Section 502 of the Act, 33 U.S.C. 51362.
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3. The discharge of pollutants by any person into the waters of
the United States, except as authorized by an NPDES cJerrut,
is unlawful under Section 301(a) of the Clean Water Act.
* »
4. On January 22, 1981, the District was issued National
Pollutant Discharge Elimination System (NPDES) Permit Number
CL0003456 (the "Permit") by the Regional Administrator of
SPA pursuant to the authority given the Administrator of EPA
by Section 402 of the Clean water Act* which authority has
been delegated by the Administrator to the Regional
Administrator. The Permit became effective on February 22*
1981, and will expire on February 22, 1986.
5. The permit authorizes the discharge of pollutants into the
Sludge River, in accordance with effluent limitations and
other conditions contained in the Permit. The limitations
contained in Special Condition Al of the Permit recuire the
plant to achieve monthly average limits of 7 mq/1 for BOO
and TSS, 1 mg/1 for total phosphorus (Total P) and 1 nq/1
for ammonia nitrogen (NH3~N).
6. Attached hereto and ineoroorated herein by reference is a
summary ot effluent data submitted by the District to EPA
for th« period from December, 1983 to Novenber, 1984* The
data shows that:
a.) the District violated the monthly average limits for
TSS during two of the twelve months and violated the
maximum daily limits for 800 nine times and TSS
twelve times over periods of three months and five
months, respectively;
I-A-15
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to.) The District violated the limits on daily maximum
concentrations thirty times for NH3-N and twenty
tines for Total P over a six month period;
c.) The District violated average monthly Concentration
limits for NHj-N and Total P each month over a
period of four months and six months, respectively.
7. EPA personnel performed a diaonostic audit inspection at
the facility during 1984. The purpose of the inspection
was to determine the cause of non-compliance with the
effluent limitations for NH3-H and Total P. The inspection
report was completed on December 8, 1984 and is attached
hereto and incorporated herein by reference as a part of
^
these Findings.
8. Based on the inspection report, the facility is currently
capable of meeting the concentration Units for NH3-N and
Total P if properly operated in accordance with Condition 02
of the permit which requires maximizing the removal of
those pollutants.
9. Based on the above, 1 find that the District is in violation
of Section 301 of the Act, 33 U.S.C. 51311, and permit
conditions implementing that section contained in a pernit
issued under Section 402 of the Act, 33 U.S.C. $1342.
I-A-16
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ORDER
>
Based on the foregoing FINDINGS and pursuant to the a-uthorit/
of Sections 308 and 309 of the Act, IT IS HEREBY ORDERED:
•
1. Within sixty days of receiving this ORDER, the District
shall submit to EPA a plan for achieving compliance
with the effluent limitations on NH3-N, Total P, BOD,
and TSS. The plan shall address the operational
problems cited in EPA's December 8, 1984, diagnostic
audit inspection report and identify any changes in
plant operation, funding, and staffing necessary to
meet the permit conditions.
2. The District shall immediately comply with all effluent
limitations contained in Special Condition Al of the
Permit for BOD and TSS.
3. The District shall immediately achieve and comply with
the interim effluent limitations specified in Attachment
A for NHj-N and Total P as an intermediate step toward
achieving final compliance* These interim effluent
limitations shall terminate on May 1, 1985. Dunnq the
time period that the interim effluent limitations are
in effect, all requirements and conditions of the
Permit remain fully effective and enforceable.
4. By May 1, 1984, the District shall have implemented
any operational changes necessary to meet the permit
effluent limitations for NH3-N and Total P. The District
shall comply with all effluent limitations contained in
the Permit by May 1, 1985.
T-A-17
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S. Where this ORDER requires a specific action to be per- -_
formed within a certain time frame, the District shall
submit a written notice of compliance or non-compliance
with each deadline. Notification shall be-, mailed within
seven days after each required action.
6. If non-compliance is reported* notification shall
include the following information!
a) A description of the nature and dates of violations;
b) A description of any actions taken or proposed
by the District to comply with the retirements; -
c) A description of any factors which tend to
explain or mitigate the non-compliance-;
d) The date by which the District will perfom the
required action.
All reports shall be in writing and addressed as follows:
Director
Water Management Division
U.S. Environmental Protection Agency
Federal Building - Room 13
Hokum, Centralia 12345
I-A-18
-
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7. This ORDER «1o«s not constitute a waiver or a modification
of the terms and conditions of the District's permit,
which remains in full force and effect. EPA reserves
the right to seek any and all remedies availabte under
Sections 309(b>, (c) or (d) of the Act for any violation
cited in this ORDER.
8. Issuance of an Administrative Order shall not be deemed
an election by EPA to forego any civil or criminal action
to seek penalties, fines, or other appropriate relief
under the Act.
9. This Order shall become effective upon the date of
receipt by the District.
Dated this _ day of
Signed:
Prudence Purewater
Regional Administrator
U.S. EPA, Region XI
Federal Building
Hokum, Centralia 12145
I-A-19
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Attachment l-g
Mr. Adams
Peerl««» Company
RR 13
Burning Riv«r, Centraiia 12346
REs Administrative Order IXX-AO-85-06
(NPDES Permit NO. 1111112)
Dear Mr. Adamss - ,
This is to notify you that as oC Hay IS, 1985 the above named
permittee appears to have complied with Administrative Order
IXI-AO-85-06 issued on February 24, 1985. This Administrative
Order has been placed on inactive status, and the Agency intends
no further enforcement action at this time baaed on presently
available information.
Sincerely,
Director
Water Management Division
cc: Compliance Information and Support Branch
OWE? (EN-338)
I-A - 20
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ATTACHMENT 2
SAMPLE EVALUATION CHECKLIST FOR EPA'S
CWA SECTION 309 ADMINISTRATIVE ORDERS or STATE EQUIVALENT
The purpose of this checklist is to serve as a guide Cor review of
State AO's or EPA'3 AO's.
1. Region:
2. Statei
3. Date Issued:
4. (1 Major ( ] Minor
5. ( ] Municipal t ] Non-Municipal
Yes flo
6. Does the administrative order contain a title? ( ] I ]
*7. Does the order establish the venue of the
issuing authority? (i.e., identification of
EPA Region), t 1 I 1
8. Does the order provide the address of the
issuing authority? ( 1 (1
9. Does the order contain a standard docket
number? (i.e., X-AO-84-01: X*Region; AO»AO;
84-Year; 01-Serial Nuirber). t J ( !
10. Does the order state the appropriate statutory
authority for issuing the order? (i.e., CWA
Section 309{a) and where reports or information
are required. Section 308 K ( ] II
11. Does the order contain a suitable statement of
delegation? (i.e.. Delegation should correspond
to* signatory of order). I 1 ^ '
12. Does the order identify the legal status of
the violating party? (i.e., leoal status as a
corporation, municipality, etc.). (1 ' '
* These ouestions are of particular interest for EPA issued
Administrative Orders.
I-A-21
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NO
*
13. Does the order describe the legal authority/
instrument which is the subject of the violation?
(e.g., statutory provision, regulatory provision*, .
if apolicable, statutory authority for permit
issuance* name of permittee, permit number* date
permit issued* permit modification or extension,
date previous administrative order issued* etc.). { } [ ]
Examples
[ ] statute
( ] HPDES Permit
14* Does the order contain a specific findinq that
the discharger is in violation of a soecific
statutory or permit requirement? I ] ( ]
15. Does the order describe or reproduce the
specific terms of the legal authority/
instrument which are the subject of the
violation? (e.g., effluent limitations,
compliance schedules, etc.). ( ] [ j
16. Does the order state, with reasonable
specificity, the nature of the violation?
(e.g., type of violation, date, evidence,
etc.). I ) ( 1
Examples
I ] Reporting or monitorinq violation
{ 1 Effluent limitation violation
{ ] Violation of special permit condition
C ] Pretreatment violation
I ] Unperraitted or unauthorized discharge
( ) Failure to meet o&M/construction schedule
C 1 Violation of a Section 308 letter
[ ) Improper 06H
I 1 Other
X-A-2Z
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Yes ro
17. Does the order specify the duration of violation?
if known? " I ]
Estimated violation ' -
*18. Does the order document prior requests to the
violating party Cor compliance with the legal
authority/instrument? (e.g., telephone calls*
letters, meeting, etc.).
11 II
•19. Where the order is issued for a CWA Section
308 violation does the order provide the
violating party with an opportunity for prior
consultation? f ] [ }
20. Does the order establish interim effluent
limitations? [ J I )
21* Does the order set out clearly any specific
steps which EPA/State wants the violating party
to take to achieve compliance? (1 ( 1
Examples
I } Submission of monitoring reports
[ I Compliance with existing effluent limitations
( J Submission of pretreatnent program
[ J Submission of correction/compliance olan or study evaluating
compliance options
[ ] Compliance with existing OiM/construction schedule
[ ] Compliance with interim effluent limitation
[ J Compliance with categorical or general pretreatnent
r ] Other
22. Are the number of days reasonable for the
type of relief sought? P )
I-A-33
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Yes NO
23. Does the order contain a specific requirement
and dace for final compliance? *~ ~ (~ ) ( |
24. Does the order specify a manner and time frame
for reporting compliance with the terns of the
order to the issuing authority? ( ] ( j
25. Does the order specify the effective date of
the order? (e.g., Date of receipt* date of
consultation, etc.). I ] ( J
26. What is the elapsed tine between the dates of
violation and the date of issuance of the
order? Is the elapsed time reasonable?
Number of days
'27. Who is the signatory of the order? (Choose
two or less).
[ ] Regional Administrator
[ } Regional Counsel
[ ) Water Division Director
[ ] State Water Pollution Control Officer
t J Other
I-A-24
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Attachment 3
Recommended Format - CWA - Administrative Orders-
Summary of Changes from the
April 18, 1975 Guidelines on
Administrative Order Format
General Approach
The April 18, 1975 guidance entitled "Guidelines for issuing
Administrative Compliance Orders Pursuant to Section 309(a)(3) and
(a)(4) of the Federal Water Pollution Control Act, as Amended,* has
been clarified and been brought UP to date with the new July 1985
"Recommended Format for Clean Water Act Section 309 Administrative
Orders. *
Some examples of the modifications and additions are:
* The new guidance makes it clear that citations of the regulatory
basis of violations must also include the underlying statutory*
basis of the regulation.
• The new quidance makes it clear that the basis of the violation
may be set off in a separate section of the order if the Region
so chooses.
* The Section on Terms of the Order has been expanded to explain
in greater detail the need for a final date for tine periods for
coning into compliance. This section also deals with prescribed
methods which may be imposed on Orderees through AO's (i.e., the
closer the requirement to achieving compliance, the sounder the
leaal position to include the requirement in an AO).
• The discussion on using successive AO's has been eliminated since
the current view, successive AO's for the same noncompliance
problems should normally be avoided and the case should be
escalated to the referral process.
* The discussion on personal service of AO's has been eliminated
since this is extremely resource intensive and the accepted
method of service is now by Certified Hail-Restricted Delivery
with a return receipt.
• New attachments have been included such as the sample AO. Other
attachments were updated.
* We have added a section on Additional Provisions, such as a
commonly used statement that further violations of the require-
ments of the AO and the permit may result in civil action
including a penalty of up to $10,000 per day, ineligibility for
Federal contracts, grants and loans and suspension of the permit.
• The Order portion of the Guidance and the Sample AO indicate
that Orders which include milestones should include reporting
requirements under Section 308 of the Act.
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Z. 8. GUIDANCE ON SELECTED TOPICS RELATED TO
LIMITATIONS AND USE Of ADMINISTRATIVE ORDERS
UNDER SECTION 309 of the CLEAN HATER ACT
-------
Draft Guidance on Selected Tonics Belated to Limitations and fJs«»
of Administrative Orders I'nderSection 309 and Information^
fferuirewents under Section 3flaofthe CleanWater *ef~~
I. Administrative Orders on Consent
Introduction
In recent months a few Reaional Offices of FPA have discussed
the possibility of issuinn Admmistrar ive Orders on ronsent (AOf):
that is, an Administrative Order issued under Section 309 of the
<"lean Water Act, which is t*en sinned not only by the Reoional
Administrator (or his desianee) hut also hv the responsible nartv
for the Orderee who acknowiednes lurisdiction, truthfulness o€
the findings and aonronr lateness of the relief. The purpose of
the AOC would tvpicallv *e the same and contain th« same provi-
sions as any unilaterally issued Admt nistrativ* Order dealino
with violations of a permit or s^a^utorv requirements. The Admin,-
istrative Order would he the Product resultina from neootiations
with the Orderee and would contain ^indinns of fact, and a directive
to achieve compliance with the nertnit and the Act bv date certain.
The AOC may contain a specified time table for compliance and
convergences of noncomni iance; fhe AO would set forth fully the
violation and the rerruir<*mpnts for the or^erees to meet. T*e
AOC should specify a final compliance date, which may not exceed
a time limit that the Administrator determine^ to be reasonable
^or anv ^inal deadline. tt is aoainst Acjencv policy for the AOC
to waive FPA's authority to pursue other enforcement alternatives
either for the violations servina as the basis of the order, or
future violations.
M van faces
The AOr can provide an additional approach to hrina a violator
into compliance in the followma ways:
1. The AOf* creates a record of fhe ord^ree's aaree^ent to
milestones and an enforceable schedule of compliance.
2. The AOC has educational value. TF there are neaotiations
to develop the Aor , both EPA and the orderee mav benefit-
from the exchanne of information. Such information
may be beneficial to PPA if a subseouent enforcement
action is reauired.
3. There mav he osvcholooical advantage to havino the
orderee Commit to compliance schedule milestones and a
.final compliance date (as lona as the approach is not
coercive to the deoree that the orderee is oolicied to
do more than renuired by law).
I-p-1
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4. If the AOC has to he enforced throuoh ludicial action, it
miaht he used as an admission hy the Defendant of those
violations covered in t*e findinas.
Limitations o* an ACC
.*
Because art AOT roiaht under some circumstances reoni-re
additional time for negotiations, the AOC may not he annronriate
for manv cases where prompt resnonse is recuired such as when
violations would cause environmental harm or endanoerment of
health. However, where EPA is seek inn commitment to a iono-term
and more complicated compliance schedule, an AOC mtciht have more
value, and ^PA mirrht pursue a separate AOC *or that Purpose.
The AOC should not result in unwarranted deiav o* action *v
EPA. FMS reouire^ that noncomnliance situations be responded to
with prompt enforcement action. T* the situation is appropriate.
for an AOC, developino the terms of an AOC should He prompt to
ensure that noncompliance i« not delaved hy the process, "inally,
in the case of, a violation of an AOC, as with a unilateral AO,
the Presumption is that EPA will first consider pursuino a ludieial
enforcement response.
I-B-2
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Specific Use» of AOC
Some typical, though hypothetical, situations, where an AOC
might be useful are the following:
Municipals *
AOC could be useful for minor municipals. All minors
and majors must be on enforceable schedules. Where States
do not do this, EPA must. Because of the psychological
value of the AOC, it may be useful to get commitments for
municipal construction based on an acceptable compliance
schedule* However, as in AO's, decisions on the exact
techniques, construction etc., to come into compliance are
in the end left to the orderee and not specified by EPA.
Industrials
The AOC could supplement general permits to set out an
additional compliance requirement as in a study, or monitoring
scheme to investigate appropriateness of additional limits,
or to examine an environmental issuer where there have been
violations or where other action is needed to bring an
Orderee into compliance. These AOC should cite CWA $308
(instead of or) in addition to CWA $309, since the orders
require monitoring or data gathering rather than actions
intended to produce compliance with, e.g., effluent limits.
The AOC can be used to get an agreement on a compliance
schedule (but not to modify a compliance schedule in a
permit).
Legal Issues
The AOC does typically contain an agreenent on the findings
and a commitment to compliance, as indicated by the orderee's
signature on the order.
The AOC should be prepared and negotiated with the
participation of the Office of Regional Counsel to ensure approp-
riate language) and that any litigation considerations that may
subsequently arise are anticipated and dealt with.
OWEP and OECN will periodically provide updates- of guidance
on AOC. The AOC should be used to impose as strict a compliance
deadline as possible and not to provide for a permissive deadline
or requirement.
In level of response and escalation of enforcement response,
an AOC is equivalent to an AO. For violation of an AO or an AOC,
escalation to a referral presumably would be the first response
considered.
I-B-3
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II. Restricted Use of Administrative Orders foe Unauthorized and
unoermitted Discharges
Summary
EPA may not rely on AOs as surrogate permits to address other-
wise unpermitted discharges. For AO's which are issued addressing
unauthorized* unpermitted discharges* the following criteria
should be met*
* EPA should first consider whether to require immediate cessation
of discharge.
- The AO should contain a date certain by which the discharger
must apply or reapply for a permit. (No more than 60 days to
apply is typically needed.) Interim limits should be set in
the AO only for the briefest time possible leading up to final
compliance and would probably be most defensiblet for example*
where health issues such as proper disposal of sewage require .
some discharge.
- The AO should have a reasonable final date for attaining
compliance with final permit limits.
Discussion
The Environmental Protection Agency in the past has issued
letters and Administrative Orders (AOs) to dischargers without a
current NPDES Permit (especially in the case of minor dischargers
or applicants for a general permit). These letters or AO's
provided terms* conditions* and interim limits for the discharge.
However in Nunan Kitlutsisti vs. Arco Alaska Inc. (an unreported
case which was before the federal district court in Alaska) this
practice was challenged by Kitlutsisti. The Court did not rule
on the issue but the case narrative does show disapproval of
such enforcement letters and AO's as an apparent substitute for
permit issuance. An earlier EPA Guidance* has stated that in
general a discharger who has filed a permit application should
receive a decision on their permit before an AO is issued (except
for exceptional situations such as a toxic discharge).
The issuance of an Administrative Order instead of following
the permit issuance process means that EPA does not afford the
public hearing and other procedural requirements normally associated
with permit issuance such as opportunity for public comment*
adversarial input and the creation of an administrative record.
The Administrative Procedures Act (APA) requires that EPA act
upon permit applications within a reasonable time* not delaying
'Memorandum to Enforcement Divisions from Assistant Administrator
for Enforcement* March 20, 1974. —
I-B-4
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the ncocesa with issuance of an AO or letter. The Court in the
above case had the followma ohiection to the "creative admimstra-
techniques".
"von compliance wit* the statute has meant that third parties,
the companies... have b«*en needlessly subjected to citiren suits
which thev are powerless to avoid. It has also denied- other
users of Norton Sound's water resources their statutory *naht to
comment on and oblect to those oronosed discharaes."
Administrative Order* cannot he used as a discharoe-authoririnn
mechanism to fill the nan between the time of AO issuance and
some indeterminate ftifure date when an individual nermit or
neneral permit miaht be issued. EPA may not relv on an AO to act
in Place of an NPOFS nermit.
finder certain circumstances it may he necessary to issue an
AO even thouoh a strict readino of the Act miaht reouire a ceasina
of the discharoe and no resumption of the discharne untiJ a
permit is in place. Discretion should be used in estahlishino
interim limits throuah an AO as lonn as the AO is not issued as a
convenient method for EPA to deal with an NPORS permit backloa,
and there is a clear justification for allowino the discharoe to
continue until the oermit is issued, when used, compliance
schedule deadlines and interim limits must be reasonably
strinaent. The AO should also state that the RPA mav initiate a
civil or criminal enforcement action seekino penalties and other
appropriate relief/ if the discharge does not cease or a permit is
not obtained within the reauired time.
It is worth notinrr that there has been a chanae from the
early stanes of implementation of the Act. In neneral when
auidance was written in 1973, circumstances were different.
Many AO's addressed problems such as discharae without a permit.
When, in these cases, a facility could not be shut down for '
health reasons, interim limits were a way of dealina with the
discharaer. Since the NPDES pronram has been in existence now
for thirteen years, these situations are less commonly encountered.
But in certain cases AO's with interim limits are used to address
discharaes without a nermit depend ma on health issues, tvne of
facility, how much construction is needed, environmental effects
of shut down and the final compliance schedule.
It is also worthwhile notinn that where a discharaer is
recuired to apnlv for a permit, the application should be sent in
within 60 days.
I-B-5
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III. Proader Usage of Section 30ftin the Administrative Order
Authority to Impose Qenortinrr Penuirements in AOs
AOs should cite Section 308 when imnosina renortina
ments, includina those associated with specific steps, a-nd milestones
in a compliance schedule. The stronoer leoal authoritv- for
imnosina these renortina reauire«ents actually is Section 30P of
the riean Water Act, rather than Section 309. The Order should
specify the manner and ti*>eframe for renortino on compliance to
the issuina authority. The most common format is to cite Section
30fl and Section 309 as a basis in the introductory paranraph of
the Order nortion of t*e AO. (5ee "Recommended Format 'or Admin-
istrative Orders tinder Section 309 of the Clean Water Act", panes
5 and 6).
Section 30ft and "Show Cauqe "eannos*
In the past, $30* of the Act has been cited to reouire members
o* the reaulated community to attend "show cause hearinos" or
"show cause meetinas" to explain records or provide direct testimony
hy personal examination why fJ.S. EPA should not take enforcement
action for aliened violations of the Act. ^otice to the violator
to attend such a meetinn was provided by a document constructed
similar to §309 AHs. The term "show cause" does not appear in
the Act and therefore while formal meetinns with the violator are
important, a violator's attendance strictly sneakino is voluntary
at all times, finder Section 308 (or Section 309), there is no
authority to rerruire the physical presence of a specific person
or representative at a specific place and time. PPA can reouire
documents, data and materials etc. to be provided to EPA under
Section 308, however. Imnlied 5 309 sanctions solely for
failure to attend a meetina should not be made.
The Atiencv is on stronnest leaal footina when it characterizes
these "hearinos" as an opportunity for the alleaed violator to
nrovide oral explanation of information relevant to a potential
enforcement matter*
rTse o* Section 308 in Pretreatment Enforcement anainst Industrial
Users
In pursuinn an enforcement action (particularly a -judicial
enforcement action) aoainst an industrial user for violations of
Pretreatment standards, PPA typically should use a Section 308
letter to obtain sufficient process description, wastewater
monitorina results, and wastewater treatment information to
establish a clear pattern of violations by the industrial user.
-------
More active use of section 308 letters is particularly important
for nretreatment cases because» unlike direct NPf>ES discharaers,
EPA does not have a set of n*Rs which can easily establish a
clear track record of violatina conduct. Where EPA can only
introduce into evidence one or more isolated «*amr»lina renorts,
the Government's case is much more vulnerable to factual cballenoe*
which a defendant miaht raise («.o., t*e oossihilitv of inaccurate
sainplinci, ur»setf or isolated noncomnliance). As a result, PPA
should evaluate the need for obtaining additional wastejwater
monitorinq data from an industrial uier through a Section 30fl
letter before refemno a nretreatment enforcement case to the
Department of Justice.
I-B-7
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I.C. LISTING OP OTHER EXISTING GUIDANCE
ON ADMINISTRATIVE ORDERS
-------
LIST OF OTHER GUIDANCE ON ADMINISTRATIVE ORDERS
The following documents and memoranda, among others, may be
of interest to the reader, althouah they do not appear in full
text within this reference document. They may also be of,general
interest and of historical value. Copies may be obtained by
callina Enforcement Division, OWEP, (EN-338), EPA, Washington, D.C
(FTS/202/475-8310)
* Memo, "Compliance Monitoring, Administrative Orders, and
Court Actions under Section 309 of the Federal Water
Pollution Control Act Amendments of 1972," March 20, 1974
• Memo, "Guidelines for Issuinq of Administrative Order
Pursuant to Title III, Section 309(a)(3) and (a)(4) of
the Federal Water Pollution Control Act, as Amended {33
U.S.C. 1319
-------
-------
III.A.6,
"Relationship of Section 309(a) Compliance Orders to Section 309(g)
Administrative Penalty Procedures", distributed August 28, 1987. This
document is reproduced at III.B.3, of this compendium.
-------
/ O 1
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III. ADMINISTRATIVE ENFORCEMENT
B. ADMINISTRATIVE PENALTY ORDERS
-------
-------
III.B.I,
"Guidance on Class I Clean Water Act Administrative Penalty Procedures'
dated July 27, 1987 and noted at 52 FR 30730 (August 17, 1987).
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C 204CO
JU. 27887
MEMORANDA
SUBJECT: Guidance on Class I Clean Water Act Administrative
Penalty Procedures
£ROM: Thomas L. Adams, Jr.
Assistant Administrator for Enforcement
and Compliance Monitoring
Lawrence J. Jensen
Assistant Administrator for Water
TO: Regional Administrators, Regions I-X
EPA will use the procedures set forth in the guidance which
follows to issue Class I administrative penalty orders under
Section 309(g) of the Clean Water Act (CWA). This guidance is
set forth in the form of regulatory amendments with the expecta-
tion that EPA will later notice them for proposed rulemaking.
Add Part 126 as follows:
Suboart A - Procedures for EPA Assessment of Class X
Administrative Penalties under Section
309
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126.108 Hearing Procedures
126.109 Record of P«»arin<;
125.1:: »«T5-.-e-'i«i 2ec:s.o- of ?resii'.-.r: ^ff.cer
126.111 Piral Cr^er of twe Ad-.-, tstrat sr
125.112 Petition? t3 Set Asiie an Oruer
'?£ ' ' 1 P**»r»iJA "'a** -< ' "* r-*«» r
» £ V « • » J ta»te.t?t«fe4»*7 M 3 » t? * » W I .* S b
126.114 Payment of Penalties Assessed
$126.101 Purpose
7*is s-icar': sets fort"* proc«»'1ures for initiation and
adn^.str a-..::-'. ~f Class I ai-nistrat i -e peialt/ orders under
Sector. 3:3";! of fe Clean Water Act (CWA), 33 CJ.S.C. I319(g).
S 12 6 .1C 2 Inlf.atlc- of Actio", Public Vottee ar
-------
(A) the respondent;
(B) any person who requests notice;
(C) the ^ost appropriate State aaency having
a-jtncrit/ under State law with respect to the matters which ace
the subject of t*e proposed order. The Administrator shall also
Kave consulted with tKe applicable State authority ia conCor-"ance
*it* Section 309(5)11) (A) before or at the time public notice is
Given of tve proposed administrative penalty order.
•
(D) tKe Adninistrator may also, at his sole option,
provide additional notice to persons on a mailing list which
includes names and addresses developed from some or all of the
following sources: tnose who request in writing to be on the
list, soliciting persons for "area lists" from participants in
past si-ular proceedinqs in that area, including evidentiary
hearings or other actions related to NPOES permit issuance, and
notifying the public cf the opportunity to be put on the mailing
list through periodic publication in the public press and in
such publications as Regional and State-funded newsletters,
environmental bjlletirs, or State law journals. The Administrator
ray update the nailing list from time to time by requesting
written indication of continued interest from those listed. The
administrator may delete from the list the name of any person who
fails to respond to such a request. The Administrator may, at
his sole"" option, publish notice of the pressed administrative
penalty order in a newspaper of general circulation in the area
in which respondent resides or is domiciled! or conducts the
activity which the prooosed penalty addresses. In any event, the
Adrnistrator shall take such steps as are necessary to fulfill
the public notice requirements of Section 309{g){4). These
notice provisions do not apply to separate administrative orders
issued under Section 309(a), which are immediately effective
except for orders issued for violations of Section 308, which
orders shall take effect after the person to whom they are issued
has had an opportunity to confer with the Administrator.
(3) All public notices issued under $$126.102(b)(2}(A)-
(C), and (0) when applicable, shall be sent by first class mail.
All public notices issued under this subpart shall contain the
following ninimum information:
to assess
given;
(A) Name and address of the EPA office proposing
the administrative penalty for which notice is eeirg
perscn, facil
is assessed;
(3)
.ty cr
Na-e and address of the resoondent,
activit* against which the proposed pe~a
(C) \ brief description of the business cr acti^i
conducted by the person or facility or the operation described in
the order, including where applicable, the * "3£S permit number cr
permit number for the discharge of -dredged fill material, and
issuance date;
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(0) A summary of violations alleged for which ^
the adrnnistrative civil penalty is being proposed, including
the amount which the Adnnistrator proposes to assess for the
violations alleged;
• ) Na-». ai-r^ss a~d telephone nu-ber of a-
Ao.e-c/ reor»sa-*at.-e fro- •{"or interested persons ray csta;-i
f,rt-er .-f;r-at.;-, incljd.-c copies of the proposed order,
'•i A state-e-t of the opportunity to s-brit
wr.t*»« --.—--ts •:- f e prop-?*-4 ord«»r, t"e deadline fcr sjc~.ss.c-*
" t s-r- -' *-*s w.c" .s t~.rt/ iays after issuance of tie retire,
a-*d f« ra-e ar.d aiiress of t"e nearing Clecl* to whom comments
should be sent;
(C) A statement of the opportunity for the respondent
tT rec,est a "
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(B) The fact that the respondent must request a
hearing within 30 days of receipt of the notice provided under
this sufeparagraph and must comply with S126.104(a) in order Cor
respondent to be entitled to receive a hearing;
(F> The name and address of the Hearing Clerk to
whon respondent may send a request for hearing;
(G) The fact that the Administrator may issue the
_final order after 30 days following receipt of the notice provided
"under these rules( if respondent does not request a hearing; and
(H) The fact that any order issued under this
subpart shall become effective 30 days following its issuance
unless a petition for review is filed by an eligible commencer
or an appeal is taken under Section 309(g) of the CWA.
(c) Curing the public cement period provided under
subpart (b) above, any interested person may submit written
consents to tKe Aaency official designated. The Administrator
shall include all written comments in the administrative record.
(d) Computation of time. In computing any period of time
allowed in these rules, the day of the event from which the
desianated period beams to run shall not -e included. Saturdays,
S.ndays and Federal legal holidays shall t» .ncluded. When a stated
time expires on a Saturday, Sunday or Federal legal holiday, the
stated time period shall be extended to include the next business
day. Any tin-e periods not specified by these rules shall be set
by t.he Presiding Officer. Service on respondent of the initial
proposed order and other information required by $!26.102
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- 6 -
other eojiQMnters. The Hearing Clerk shall also serve on all
commentem the initial complaint and an/ request for hearug
received from respondent. The Hearing Clerk shall serve, *;t.K a
certificate of service, all orders, notices or other documents
:ss-ei b/ twe Presldl-^ Officer or the Adr.i.-ustrator on Agercy
Counsel to t*e proceeding, the respondent and any comnei-.te-s to
f-e ?roce*»ii n-j.
12*.133 Pr*sid:r"7 Officer
(i) The Airsi-'istratar shall act as Presiding Officer. So
person shall serve as a Presiding Officer where he has any prior
connection with the case Including, without limitation, the
performance of investigative or prosecuting functions. The
Presiding Officer shall conduct hearings as specified by these
rjles and sake a reconaended decision to the Administrator,' His
reccrj-en-;<*d iec.sion shall address both questions of fact and
law. The Presiding Officer shall be assigned by the Administrator
to t*e proceed'*--; within thirty days after a hearing request is
received by the bearing Clerk identified by the Administrator
for the proceedir-.. TKe Hearing Clerk shall notify the
Ad-inistratsr exoeditio-sl/ of receipt off a hearing request.
The Hearing Cleri snail be identified in the initial notices
sent to respondent ard potential cooaoenters.
(b) Twe Presiding Officer shall corsi-'-r each case on tie
Basis of the evidence presented. The Presiding Officer is solely
responsible for preparing and transmitting tne recommended decision
and orier in ea^h case to the Sdiiinistrator, unless such decision
and order are agreed upon by the parties. In'such latter case,
the agreed upon decision and order shall be reviewed and issued
as appropriate by Che Administrator, and no Presiding Officer
shall be appointed or, it appointed, he shall have no further
authority In the- proceeding.
(c) The Presiding Officer is authorized to administer
oaths and issue subpoenas necessary to the conduct of a hearing.
The Presiding Officer is authorized to do all other acts and
take all Matures necessary for the maintenance of order and
for the e-fficient, fair and impartial adjudication of issues
arising in proceedings governed by these rules.
(d) Ex Parte Communications.
(1) *Ex parte communication* means any communication,
written or oral, relating to the merits of the proceeding, bet-ee"
fe Presiding Officer and either an interested person outage the
Agency or the interested Agenc/ staff, which was not on^.-al./
f.led or stated in the ad-i-istrati/e record or in the near.--.^
Sac", conruaication is not an "e_x parte communication* if all
parties have received prior wr-tten notice of the proposed co--
ication and have been given the opportunity to be present and
participate therein.
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. 7 -
(2) 'Interested person outside the Agency" includes the
respondent* any person who filed written comments on the proposed
penalty order, and any attorney off record for those persons.
(3) 'Interested Agency staff" neans those Agency
eroloyees, wnet!-.er temporary or per"ianent, who way investigate,
litigate, or present evidence, arguments, or the position of tie
Agency .n the hear»na Defore the Presiding Officer or who part.ci-
oated in tne preparation, *nvestigation or deliberations concerning
the proposed penalty srder, inc.jding any EPA employee, contractor,
or ccnsuita-t *ho na/ be called as a witness.
(4> No interested person outside th« Agency or rreTiber
of the interested Agency staff shall make, or knowingly cause t :>
be made, to the Presiding Officer an ex parte communication on
the merits of the proceeding.
(5) TK.e Presiding Officer shall not make, or knowingly
cajse to be r>ade, to any interested person outside the Agency or
to any nen»5er of the interested Agency staff an ex parte cojwnuni-
cation on the proceeding.
(6) The Ad-inistrator r.ay replace the Presiding Officer
in any proceeding n w'-ich it is demonstrated to the Administrator's
satisfaction t!*at the Presiding Officer has engaged in prohibited
ex parte cor-'unicatxcrs to the prejudice of any participant.
(7) Whenever an ex^ parte communication in violation of
this subpart is received by the Presiding Officer or made known
to the Presiding Officer, the Presiding Officer shall immediately
notify all parties or concenters in the hearing of the circum-
stances and substance of the communication and may require the
party or connenter who made the communication or caused it to be
made, or the party or commenter whose representative made the
communication or caused it to be made/ to the extent consistent
with justice and the policies of the CWA, to show cause why tHat
party's or comnenter's claim or interest in the proceedinas
should not b* dismissed* denied, disregarded, or otherwise
adversely affected on account of such violation.
(8) The prohibitions of this paragraph apply upon
designation of the Presiding Officer and terminate on the date of
final Agency action.
§126.104 Opportunity for Hearing
{a) Wit-.in 30 iays after receipt of the notice set fort-
i- §126.1Q2(b), tKe resrcnde-t "'av request a hearing and ra/
rrovide written com-e-ts on the prcoosed administrative pera.-/
order. Resnc^ient —jst request 3 nearin.g in writing. The rec.^s;
"•y*st specify the factual and legal issues wnich are in dis?-"-3
and the specific factjai and leaal grounds for the respondent's
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defense. Any and all snecific alienation; not resoonded to by the
respondent or a comn»e'iter shall be dee-ned admtted.
,.> 7*.^ resp;-"2**t s"all £e -Jee-ed re ~ave *a..ed t*e r.3't
to a -«ar;-t; .f t-e respo-de-.t dees not subm t-e revest tj t-a
rfear.n-: CIer'< iesianated. Respondent's recj-est .-»,.st be in ^ritn-q
a-i rece..ei o/ tHe neari-q CLern -o laser f.ar 30 days sfter
resporde-t receives *.*.e proposal crier. ?or cood ca.se snown, tKe
Fresmi"-; tff.cer -a/ -;ra-.t a *.ear:-i if t",e respo^de^t s»c-it5
a late r*»^-est.
(c) Except as provided in S126.104(C), t^.e Presiding Officer
sHall prorptly sched-'.e all hearings and provide reasonable notice
of tie schedule to all parties and comnenters. The Presiding
Officer -^ay crant any delays or continuances necessary or desirable
to resel.-e t^.e case fa.rly fzr good ca-se slown.
a f:-.di-^ of ^cod ca-se sy the Presiding Officer,
respc-.de^t -no Kas requested a hearing (nay arend t>"e specifica
c- -f t-e .ss.es i- "i.sp-te a-i t"e zro.nds for defense not
;er fa- 2C ia/s ;ef:re tie scred^le- date of the hearinq.
"
e ?resid.-s Officer s"all q-.ve written nctice -if an
Near-.-^ to 5e Keli -nder t^ese r-les to ar person who ccr-ent.
en tke pr-jsesed administrative penalty cr-t - -nder $126. 1C2 t
TK.s -ot.-e s~all specif/ a reascnasie tir- Tior to the near. -3
within which the concenter ray reouest an ^rsortuiity to be Keard
3-d to prese-t evidence or to rra*e co^renti .1 any such .*ear . --7.
Twe -ctxce s-all recuire that a-y such rec-es1: specify fe far-s
cr .ss-es w'-ich t."e cor*enter wishes to address.
(f) Sunrrary determinations.
(1) Any party in a hearing to be held under these
rules may move, with or without supporting affidavits and
briefs, for a summary determination upon any of the issues se.-- 5
adjudicated, on the basis that there is no genuine issue of
material fact Cor determination. The motion shall be served -pen
each other participant and filed with the Presidma Officer a*.
least 20 days before the date set for the hearing, except trat
upon leave) granted for oood cause shown, the -"otion IBaV Be *•-**
at any tim« before the close of the hearing.
f2) Any other party ray file and serve a res?c-se -.-.
*"9 ^ot:^~ or a ecu* tercet -on fcr sur~ary determination, •-.*."."
t-.rt/ ia..s of ser.'ice j-less a different schedule :s set c/ •"•»
?res .d'."c* Cf f .rer . v»"er. a -ct»o- f*c sufrnar/ -ieter-i^at . *" .-
-3de a-d s-rp = rtad, a oarty cpocs^-^ tw.e rot;on -nay nst r-?st .=
~ere allecatio-s or denials but r-s-. snow, b/ affidavit or r.
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- 9 -
other materials subject to consideration by the Presidina
Officer, that there is a genuine issue of material fact for
determination at the hearing.
'3) Affidavits shall be nade on personal knowledce,
setting fortn facts and showing that the affiant is competent to
testify to the matters stated therein.
(4) »:o oral argument shall be had on the motions filed
urder this subpart unless the Presiding Officer so elects.
?he Presiding Officer shall rule on the motion promptly after
responses to the motion are filed under this subpart.
(5) If all issues are decided by summary determination,
no hearing shall be held and the Presiding Officer shall prepare
a recommended decision under S126.110. If summary determination
is denied or if partial sumrary determination is granted, the
Presiding Officer shall issue a statement of findings and reasons
available to the public at the time of issuance by the Presiding
Officer, and the hearing shall proceed on the remaining issues.
(6) After receipt of all pleadings, the Presiding
Officer may grant or deny any motion, order a continuance to
allow additional affidavits or other information to be obtained,
or make such other order as is just and proper.
(g) Default. Once the Presiding Officer has been assigned
pursuant to $126.103(a), the Presiding Officer may recommend a
party be found in default after motion for failure to file a
tifely response or for failure to appear at a hearing without
good cause being shown. Any motion for a default order shall
include a proposed default order, and the alleged defaulting
party shall have thirty days from service to reply to the motion.
The Presiding Officer shall issue his recommended default decision
solely to the Administrator subject to $126.110 of these rules.
If the Administrator determines that a default has not occurred,
the administrative penalty action shall be returned to the
Presiding Officer for further proceedings pursuant to these
rules. X£ the Administrator finds a default has occurred, he
shall issuft a default order with penalty assessment, if applicable,
against the- defaulting party, which order shall constitute final
agency action for purposes of judicial review. If the Administrator
determines that a default has occurred, any commenter who filed
comments in a timely manner under $126.102(b) may, within 30 days
after the Administrator has issued the default order, petition
the Administrator to set aside the default order and $126.112
shall apply to the Administrator's action on the petition.
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§126.105 Administrative Record
(a) At my time after public notice of a proposed penalty
cr-ier is oiven under $12*. 102. the Administrator s!-all na*e
aja.la=.e t*e a-i-. - .st rat . .e record at reaso-a=le ti-es for
.-sp*:t t" a-" -rs .-- r / a-.p .-terssted serso-, s-S;ect to
pro/.s.s-s cf la- restr.ctinc; the p-3iic disclosure of confidential
irf -sr-at'.cn. T*e rec-ester -ay te re^-ired oy t*.e ^d-"i- .stratcr
to ?a/ reasc-arle --ar^es f;r rcpies. rfce adninistrat i .e record
srall "e
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- 11 -
fb) the) Presidina Officer may establish a deadline or
deadline* for the submission of factual or legal documents which
may be considered as part of the administrative record.
$126.106 Counsel
(a) A respondent or corr-enter may be represented at all
stages of the proceeding by counsel. After receiving notification
that a respondent or any commenter is represented by counsel, the
Presiding Officer, the Administrator, the respondent and all
other commenters shall direct all further communications to that
counsel. Respondent and/or commenters shall bear all costs of
counsel.
§126.107 Location of Hearings
(a) The hearing shall be held at the appropriate EPA office,
except as provided in subparagraph
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- 12 -
to the administrative record. The respondent may offer into
evidence th* response to the administrative record and any facts,
statements! explanations, documents, testimony, or other exculpa-
tory items which Dear on any appropriate issues. Twe Presiding
Sfficer PS/ r»c,,*r9 th* a-tnenticatior of any written exnibit or
statene-t.
(£) All direct and rebuttal testimony shall be submitted
:n *r;tten forr, unless upon motion and good cause shown, fa
Pres.-itnj Tffirer deterr^-es ''•.at oral presentation of tne
t*3ti-o-./ on any particular fact will materially assist in the
efficient identification or clarification of the issues. The
respondent and the Administrator shall be afforded a right of
cross-examination after Introduction by a witness of his written
testinony. Cross-examination will be allowed both on the written
statement of a witness and his oral testimony. The Presiding
Cff.rer ~a / l:nt tK.e scope or extent of cross-examination and
tr.e n-rber of witnesses in the interests of justice and conduct-
ing a reasonably expeditious proceeding. No cross-examination
s-jll S«» allowed on q,.est;c-s of law or regarding natters that
are «ot iPtrod-j:*1 ;-to evidence nor otherwise subject to challenge
in a neari-"; under this subpart. So Agency witnesses shall be
required to testify or be nade available for cross-examination
on t-e Batters described in t*e prior sentence.
>"de"t's resentation of
evidence, the Presiding Officer may allow t~e introduction
cf rebuttal evidence. The Presiding Officer may allow the
respondent to respo-d to any sue* rebuttal ^/idence subritt-1.
(hi Commenters who commented within the timeframe of
$126.102(b), and who filed a request to participate under
5126.104{e) on the facts or issues specified in the request to
participate, shall have a right to be heard and to present
witnesses at the hearing held under these rules. However,
commenters shall not have the right of cross examination, nor
shall commenters be allowed to intervene as parties to the
proceeding.
(i) In- receiving evidence, the Presiding Officer is not
bound by atrlct' rules of evidence. The Presiding Officer shall
admit all evidence which Is not irrelevant, immaterial, unduly
repetitious or of little probative value, except that evidence
relating to settlement wh'ich would be excluded in the Federal
courts under Rule 408 of t*e Federal Rules of Evidence is not
ad-iss:ble. In drafting the reco-mended decision, the Pres . 1i-7
Officer s-'all determine tne weight to be accorded t*e evide-t*.
(3) The Presidi-s Officer -a/ ta'
-------
matter, the> Presiding Officer shall give the Administrator and
the respondent an opportunity to show why notice should not be
taken. In any case in which notice is taken and his recommended
decision I* based in part upon this notice, the Presiding Officer
shall place a written statement of the matters as to which notice
was tanen in the record.
(k) After all evidence has been presented, the Presiding
Officer may allow any participant to present argument on any
relevant issue specified in the request for hearing or in comments
sub-itted prior to the hearing. Any participant nay submit a
•ritten statement for consideration by the Presiding Officer.
The Presiding Officer shall specify a deadline for submission of
the statement. If fie statement is not received within the time
prescribed, the Presiding Officer may render a recommended
decision in accordance with $126.110, without considering that
statement. The Presiding Officer may also require the Administrator
and the respondent to submit proposed findings of fact and
conclusions of law and mty specify a deadline for submission of
these materials.
5126.109 Record of Hearing
The Presiding Officer shall cause a tape recording, written
transcript or orher permanent, verbatim record of the hearing to
be made, which shall be included in the adr.nistrative record,
and shall, upon written request, be made available, for inspection
or copying, to the respondent or any interested person, subject
to provisions of law restricting the public disclosure of confi-
dential information. Any party or commenter making a request
shall be required to pay reasonable charges for copies unless the
party or commenter can show the cost is unduly burdensome*
$126.110 Recommended Decision of Presiding Officer
(a)'Within a reasonable time following the close of the
hearing and receipt of any statements following the hearing, the
Presiding Officer shall forward a recommended decision which
shall include) a written statement of reasons for the decision
and any peittlty assessment to the Administrator. The decision
shall recoa»end that the Administrator withdraw, issue, or modify
and issue* tile) proposed penalty order. The recommended decision
shall be baaed on a preponderance of th* evidence in the adminis-
trative record and shall take into account the penalty assessment
factors specified in Section 309(g)(3) of the CWA. The Presiding
Officer also shall make available to the Administrator for review
the complete administrative record.
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(b) the Presiding Officer provides a recommended decision
solely to the Administrator. The Presiding Officer shall include
the recoroended Decision in the ad-inistrat Ive record and shall
ra»* it available to t.Ke parties to t*e proceed 1.15 at tse ti-e
t*.e Ad.-.-istratrr's decision is released pursuant to $126.111.
The Pres^i-s Officer's recorL-e-de-J decision (I) ehall not becore
part cf t~e a^-i" istrati ve reccr-i j-!til the Adainistrator ' s final
dec.siir is released a".? '2, snail not be rade previously availas
except t- t~e A«.-. - istrator .
(c) Ex garte Cor-— jni cat ions. The rules applicable to
Presiding Officers under $I26.103fd) regarding ej» parte conununi-
cations are also applicable to the Administrator and to any
other person who advises the Administrator on the decision or
the orier. Ccrru-ucat ions between the Administrator and the
^.-- Zft .cer do mt constitute et parte consanications ,
S I 2 6 . 1 1 1 Fi-al Order of t^e Adnlnistrator
'a, w.t*.-> * reasonable t-.-e follow. TJ receipt of the
Presiii"? Officer's reconsnendel decision, the Adrinistrator snail
wit.^iraw, :ss,e, or rcdify and issje the proposed order. The
Adnn.strator ' s decision shall be based on a preponderence of t
ev^de^ce in the administrative record, shall take into accou-t
t~e pe-alt/ factors s-t c-t .- Section 309'- '3) of the Cleat
Water Act, stall be in writing, shall Induct* a clear and concise
statement of reasons, and shall include any final order. The
Adninistratcr's decision shall constitute final agency action for
purposes of jjdicial review.
(b) The Administrator shall provide written notice of the
issuance, modification and issuance* or withdrawal o,f the proposed
order to the respondent and ever/ person who submitted written
comments on the proposed order.
(c) The decision shall Include a statement of the right to
judicial review and of the procedures and deadlines for obtaining
judicial review.
(d) For appeal purposes, if a hearing is held under these
rules, the dace of issuance or withdrawal of an order by the
Administrator shall occur on the date of mailing of the
Administrator's order, referenced in $126.ilUb), to respondent.
The notice shall be sent to respondent by certified mail, return
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- IS -
receipt requested. The Adrmistrator shall provide notice of the
decision to all persons who submitted comments.
fe> If no hearing is requested or held under §126.108, the
Ai.rnistrator shall consider the entire record, including any -
cements received, and shall issue an order, if appropriate, by
sending the order to the respc-dent by certified mail, return
re-ceiot requested. The Administrator shall provide notice of t*e
decision to all nersons who submtted comments. The date of
-^ailino of the order shall constitute final Aaency action for
p-rposes of judicial review. The order shall also note the right
of a prior comrenter to petition for a hearing pursuant to $126.112
if no hearing was previously held and that such petition shall be
filed with the Hearing Clerk for transi"ittal to the Administrator.
Prior to issuance of the order when no hearing is held* the
Adrnistrator or his deleaatee may request additional information
on specified issues fror t*.e participants in whatever form the
Administrator designates, givnc all participants a fair
opsortunty to respond. 7*e Ad-inistratcr shall include this
additional information in tfe administrative record.
S126.112 Petitions to Set Aside an Order
If no wearine is held before issuance of an order, any
cc-renter w.no filed commentsxin a tirely ra-ner under 5126.102'b'
-a- , wit*!" 30 days after twe Ai-.nistrator "as issued an crier
under $126.11i(e), petition the Administrator to set aside the
crder and to provide a hearino on the penalty. The Administrator
shall set aside the order and provide a hearitg in accordance
with these rules if the evidence presented by the commenter/
petitioner is material and was not considered when the assessment
order was issued. If the Administrator denies a hearing, he
shall provide notice to the commenter/petitioner and to the
respondent and shell publish notice of the hearing denial in the
Federal Register, tonether with his reasons for the denial.
«126.ll3 Effective Date of Order
Any order issued under this subpart shall become effective
30 days following its issuance unless an appeal is taken purs^a^t
to Section 309(g}(8) of the CWA, or a timely petition for hearm:
is filed by a prior cormenter before the Administrator. If t*e
Administrator denies such a petition for a hearing, the order
becomes final 30 days after the denial.
5125.114 Payrentof Penalties Assessed
Payment of civil ce"alr:es fi-ally assessed by tKe~
atcr shall be ^ade by for-arima a cashier's or cer .f.e'i
payaDle to the '---.cei States of America, in the amo--t
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- 15 -
assessed, and noting the case title and docket nunoer to tr
-------
August 17 1985" / Notice*:
CMVIftOMMEMT At.
AOIMCY
• Environmental Protection
Agency (EPAJ
! Nonce of availability.
1 EPA it making available, to
the public • document entitled
Guidance of EPA Claaa I deaa Water
Act Admtaiatraave Paaalty Procedurea"
which will providt procedural guidance
In tha aaaeeament of adaUaiatntiv*
penaltie* designated aa Oa*e I uadtr
secttoa 308(1). 33 U-S.C mifg)
•wwtiui DATE This guidance
document will bt tffcctiva oa Auguat 17,
im
AOOHHK To obuin a copy of the
fuidaac*. writa io-
Water BaforecncBt DUviion (LE-lttW).
AttanooB. AMUUAI Enforcamaat
Counitl Souihtm Rtf loni Branch
Office of Enforcemtnl and
Compiianca Monnonnf.
Environmantal Prelection Agency 40t
MSwetSW Waihmfton. OC 20460
to* nMTTMtJi IMTOMUTWM COaTTACT
John W Lyon Annum Enforcement
Couniai Environmental Protection
Agency Telephone 202/«7S-«r7 (FTSl
S«cuon
314 of the Water Quality Act of 1987
Pub L 100-4 added tection 309(j) 10 the
Clean Water Act (the Act) to provide for
'he ineitment of administrative avU
perelbei The itatute ettabluhed two
ciaiiei of administrative avil panaltiee,
Class I and Can U Oati i
•dmtmttratwe uvil penalty MMismeota
iray not exceed 310 000 per violation, or
eiceed a total amount of iiSOOO. Qaaa
II aiMitmenti may not exceed IHXOOO
per day 'or each day dunnf which the
violation continue* or exceed a total
aiicicment of S1UOOO. Both daaaet of
•dm eitirartve civil pcnalne* may be
at ies ted for violation* of tacnon 301
301 308 307 Mfl. 31 1. or 408 of tha Act
or fpr violation* of any permit condition
or Umi'ation implementing «ay of theae
aecticri m a permit i**ued uode/
S«cr r 402 by the Adouuttntof c a
State or in a permit luued undat
leciicr 404 by a Slate
This nonce ia to adviaa the public of
lha availability of fuidaoca which tha
Agency will follow ui leauiag Qeaa I
adounittraUva avil penalty order*. The
guidance it written In the form of
regulatory amendment* with (he
ixpectaboa thet EPA wiU later notice
then for proposed ruJemakmg Aa
interim final rule guidtag the aaaaxment
of Can U adXDinutraova penalties la
aJao being publiahed in ihe Federal
Datr Aueuat t& 19a7
ITU Dec. V-tMOO niad 4-14-T a 49 «•)
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I
III p
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III.B.2,
# " Final Rules of Practice Governing the Administrative Assessment of
Class II Civil Penalties under the clean Water Act," issued June 12, 1990,
effective July 12, 1990. Published at 55 F.R. 23838 (June 12). Replaces
the Interim Final Rules dated August 10, 1987.
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*
23833 Federal Register/ Vol. 55. No. 113 / Tuesday, [une 12. 1990/Rules and Regulations
ENVIRONMENTAL PROTECTION
NCY
, ?R Part 22
I. 1-3645-7]
Rules of Practice Governing the
Administrative Assessment of Class II
Civil Penalties Under the Clean Water
Act
AGENCY- Environmental Pro'ec* on
Agency (EPA)
ACTION, rtral rule
SUMMARY- EPA is today promulgating a
final rule establishing procedures fur its
administrative assessment of Class II
Ci.il penalties under the Clean Water
Act (CWA) There have been no
fubstantn e changes to th s rule since it
was issued as an intent" final rule See
5Z FR 30671 (August 17,1S87) This rule
p-ovides thatEPA's administrative
assessment cr CUss II peral'.es will be
governed bv EPA's Consolidated Rules
cf Practice for assessing adrmistrative
f jnalties EPA is taking this action in
response to amendments to the CWA.
rrade by the Wa'er Quality Act of 1987,
vvhich authorize the Administrator to
assess ad*r. nistrative penalties for
specified violations of the CWA The
authority granted to the Administrator
sess administrative penalties was
immediately effective on February
j>7, the date the Wa»er Quality Act
i -s enacted
rATEs: The final ru'e is effect.ve July 12.
1 ~ M. EPA will use the interim final rule
f-r conducting these proceedings before
t e date the final rule becomes effective.
fin FURTHER INFORMATION CONTACT:
f .sac Gary V.'atkins, Office of
Enforcement and Compliance
' .onitonng (LE-134W), U.S.
Environmental Protection Agency, 401M
Street, SW. Washington. DC 20460,202-
3^2-2656
£ PPLEMEVTARY INFORMATION. On
Fi oruary 4.1987. section 309 of the
OVA. 33 U S C 1319. was amended by
s-ction 314 of the Water Quality Act.
Fab L 100-4. to authorize the
Administrator of EPA to assess
r dmimstrative penalties for violations of
the CWA. The amendments to section
3C9 created a new subsection 309(g)
establishing two classs of administrative
penalties, which differ with respect to >
pocedure and maximum penalty
a-nounts
Class I administrative penalty
proceedings are not subject to the
Administrative Procedure Act. S U S C.
554 556. and authorize a maximum
•f. "-- M of $25.000, Notice of the
ability of procedural guidance for
Class I proceedings was published in the
Federal Register See 52 FR 30730
(August 17.1987)
The final procedures promulgated
today apply only to Class Q. Class II
proceedings authorize a naximum
penalty of $125 000 and are subject to
the requirements of the Administrative
Procedure Act 5 U S C 554.550. Class II
proceedings are similar to
rdmmistrauve penalty proceedings
subject to the Administrative Procedure
Act under other environmental statutes
EPA promulgated Consolidated Rules
of Practice, 40 CFR part 22. governing
the administrative assessment of
penalties under other statutes
administered by EPA. The Consolidated
Rules provide a common set of
procedural rules for certain of EPA's
administrate, e penalty programs to
reduce paperwork, inconsistency, and
the burden on persons regulated See 45
FR 24360 (Apnl 9,1980).
Because of the similarity of Class n
proceedings to other administrative
penalty proceedings subject to the
Administrative Procedure Act EPA
concludes that the Consolidated Rules
of Practice should be used as the
procedural framework for Class II
administrative penalty enforcement
under the CWA. Accordingly. EPA is
today promulgating a final rule
providing that the Consolidated Rules
shall govern ad)udicatory proceedings
for the assessment of Class II
administrative penalties under section
309fg) of the CWA.
EPA published this rule in interim
final form in the Federal Register with a
30-day comment period. See 52 FR 30671
(August 17,1987). The Agency received
BIX comment letters. Comments fell into
seven areas of concern.
1. Economic impact on small business
One commenter wanted the Agency to
perform an economic impact analysis
This regulation is not considered a
major rule by the Agency because it will
not have an annual effect on the
economy of $100 million or more and,
therefore, no regulatory impact analysis
is required. The economic effect on most
small businesses is slight therefore, no
regulatory flexibility analysts is
required. Moreover, this regulation will
tiave no effect at all on small businesses
that comply with the Clean Water Act
2. Public notice of complaints. One
commenter asked that the standard
public comment penod be 30 days, that
non-party commenters be allowed to
submit late comments only when the
commenter shows good cause, and that
the Agency provide for late submission
by parties to the enforcement action.
Another commenter wanted the Agency
to give notice of a violation and a
reasonable time for correction before
issuing an administrative penalty order
The 30-day comment period after public
rotice is set forth in 40 CFR 22.38(d).
Also { 22 38(d) provides that non-par'y
commenters can submit late comments
after showing good cause \party to lve
acton is not covered by the { 22.38[d)
provision for submitting comments,
party submissions are governed by 40
CFR 22 07(b) and 22 15 The Clean
Water Act imposes strict LabiLty and
does not require the Agency to give
notce of violations before enforcing the
Act These administrative penalties sre
.for past violations Corrective action
will not affect liability Because
administrative penalty orders usually
will be based on self-reported permit
violations, the discharger should know
of the \ lolation before the Agency
publishes a notice of the complaint
3 Timing of state consultation. One
com-nenter wanted the timing of sta»e
consultation clarified to ensure that
state and federal actions are not
initiated simultaneously The state
consultation occurs before the Agency
assesses a Class II civil penalty in a
final order.
4 Evidentiary issues arising at a
hearing One commenter wanted these
supplemental regulations clarified as to
admissabihty and relevance of
evidence. The Presiding Officer follows
the existing requirements of 40 CFR
22.22 to determine the admtssibiltty of
evidence.
5 Participation at a hearing by a
commenter who is not an inten enor
One commenter wanted to ensure that a
person who is not a par*y but presents
evidence at a heanng is subject to cross-
examination. That commenter also
wanted the regulations to state that e
person who is not a party cannot cross
examine witnesses Under 40 CFR
22 38(d). a commenter who is not a party
has no right to cross examine witnesses
Othe- participation by a commenter is
governed by 40 CFR 22 22 and 22.38(d)
Parties may cross examine See 40 CFR
6. Right to trial by j-ry One
commenter wanted the regulations to
provide for a trial by jury on the issue of
liability for administrative penalties.
There is no right to a jury trial on the
Issue of liability in an administrative
proceeding Atlas Roofing Co , Inc v
Occupational Safety and Health Review
Commission. 430 U S 442 (1977) Accord
Tall v US.. 412 U S. 481. 418 n.4 (1987)
The purpose of the administrative
penalty authority is to expedite
enforcement m straightforward cases in
which violations are clearly documented
and are unlikely to be contested by a
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Federal Register / Vol. 55, No 113 / Tuesday, June 12. 1990 / Rules and Regulations 2383
violator The Consolidated Rules of
Practice and this supplemental rule
provide adequate due process
protections for respondents.
7 Criteria for assessing a penalty.
Three eonunenters wanted specific
criteria for determining a proposed
penalty amount The criteria are stated
in section 309(g)(3) of the Clean Water
Act. 33 U S C 1319(g)(3) EPA has not
issued specific guidelines under the
Clean Water Act for calculating
administrative penalties for
adjudicatory hearings. The Agency
issued guidance for calculating a
settlement penalty amount on August 28,
1987 The Uniform Civil Penalty Policy,
issued February IB. 1984, provides a
general framework for determining
administrative penalties See 40 CFR
2214(c).
Statutory Requirements
Under section 309(g) of the CWA. the
Administrator assesses a Class II
penalty by a final order after
opportunity for a hearing on the record
Under section 309(g). the Administrator
also must consult with the State in
wmch the violation occurs before
assessing the penalty
Under section 309(g), the
Administrator must provide public
notice and reasonable opportunity to
comment upon the complaint The
section provides that if a hearing on the
complaint is conducted, the
Administrator shall give any citizen who
commented on the complaint notice of
the hearing, and a reasonable
opportunity to be heard and to present
evidence at the hearing. The section
further provides that the Administrator
shall give any person who comments on
a complaint notice of the order
assessing a penalty.
Under section 309(g), if no hearing is
held, any person who commented on the
complaint may petition the
Administrator to set aside the order and
to provide a hearing on the complaint In
addition, section 309(g) provides that the
Administrator must set aside the order
and provide a hearing if the
Administrator determines that the
evidence presented by the petitioner is
material and was not considered in the
issuance of the order Under section
309(g). if the Administrator denies a
heanng. the Administrator shall provide
to the petitioner, and publish in the
Federal Register, notice of and the
reasons for the denial.
Section 309(g) did not change die
procedures for issuing and enforcing
administrative compliance orders under
other subsections of section 309 See
section 309(g](ll) Accordingly, the rule
promulgdted today does not apply to or
change the procedures for issuing or
enforcing compliance orders issued by
EPA under, for example, section 309(a)
of the CWA.
Consolidated Ru|ee of Practice
EPA concludes that the Administrator
may use the Consolidated Rules of
Practice. 40 CFR part 22. lo assess Class
U penalties under section 309(g) of the
CWA. The Consolidated Rules were
developed for administrative penalty
actions like these that are subject to the
Administrative Procedure Act
Under the Consolidated Rules, as
supplemented by this final rule, EPA
will assess Class II penalties by a final
order after opportunity for a hearing on
the record Before issuing an order, EPA
will give written notice to the person to
be assessed the cavil penalty by filing
and service of a proposed order and
complaint under the Consolidated Rules
Under 40 CFR 22.15. the complaint will
include a notice of the respondent's right
to request within 20 days, a heanng on
the complaint
EPA will provide public notice and
reasonable opportunity to comment on
the complaint under the Consolidated
Rules. If EPA conducts a heanng on the
complaint EPA shall provide to any
person who commented on the
complaint a copy of the notice of hearing
required by 40 CFR 2Z2l[b), and a copy
of any final order assessing a penalty
Commenters who wish to participate at
a hearing may be heard and present
evidence without nght of cross
examination or may move formally to
intervene under 40 CFR 2211 If no
hearing is held, persons who commented
on the complaint may petition to have
the order set aside and to have a heanng
on the complaint
This final rule is effective 30 days
after publication in the Federal Register
The Consolidated Rules of Practice and
the interim final rule will govern
proceedings for the assessment of Class
II administrative penalties under the *
CWA for which a complaint is filed
before the effective date of this final
rule.
The final rule affirms that actions of
the Administrator for which judicial
review could have been obtained under
section 509(b)(l) of the CWA (for
example, issuance of a waste water
discharge permit) will not be subject to
review in a Class II penalty assessment
proceeding. The final rule makes clear
that a person who is not a party to a
penalty assessment proceeding may
nevertheless comment on a complaint
and petition for a hearing The rule
requires that these persons file wntten
comments with the regional heanng
clerk and serve a copy of the comments
upon each party. The rule coi •Hat
a person wishing to intervene as
party in a Qasi II penalty oroeeew „
may move for leave to intervene under
the Consolidated Rules
Regulatory Flexibility Act
Under the Regulatory Flexibility Act £
USC 601-612, whenever an agency is
required to publish a general notice of
rulemakmg for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
impact of the rule on small entities, i e
small business, small organizations, and
small governmental jurisdictions The
Administrator may certify that the rule
will not have a significant economic
impact on a substantial number of small
entities
This regulation will impose no
significant costs on any small entities
The overall economic impact on small
entities is slight Accordingly. I hereby
certify that this proposed regulation will
not have a significant impact on a*
substantial number of small entities.
This regulation does not require a
regulatory flexibility analysis
Executive Order 12291
Under Executive Order 12291, EP
must fudge whether a regulation is major
and, therefore, subject to the
requirement of a Regulatory Impact
Analysis. Major rules are those which
impose a cost on the economy of $100
million or more annually or have certain
other economic impacts. The Agency
has determined that this proposed rule
does not meet the criteria of a major rule
set forth in section l(b) of the Executive
Order The Agency submitted this
regulation to the Office of Management
and Budget for review as required by
Executive Order 12291.
Paperwork Redaction Act
Under the Paperwork Reduction Act
EPA must submit all information
collections to the Office of Management
and Budget for approval As the present
rule contains no information collection
requirements, this stipulation does not
apply.
Dated. May 30 1990
William K. Reilty.
Administrator
Accordingly, the interim final rule ^
amending 40 CFR part 22. published
52 FR 30671 (August 17.1987) is ado
as a final rule with the following
changes'
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C 20460
• PRO1
" I " '090 OFFICE OF
ENFORCEMENT AND
COMPLIANCE MONITORING
MEMORANDUM
SUBJECT: Final Rule for Administrative Assessment of Class II
Civil Penalties, 40 CFR Fart 22
FROM: Patricia ChorrJ>-
OE-Water Intern
TO: OE-Water Attorneys
Regional Counsels, Regions I-X
Attached is the final rule governing administrative
assessment of Class II penalties. The rule was issued June 12,
1990 and becomes effective July 12, 1990. Please contact Susan
Gary Watkins at (703) 768-2950 for further information.
Printed on Recydad Paper
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fcaaarai Regutei / Vol. 55. No 113 /Tuesday, June 12. 1990 / Rotes and Regulations
PAST 22-CONSOUDATED RULES OF
PRACTICE GOVERNING THE
ADMINISTRATIVE ASSESSMENT OF
CIVIL PENALTIES AND THE
VOCATION OR SUSPENSION OF
RMITS
. The authority citation for part 22 is
revised to read as follows:
Authority: 15 U S C tee. 2815,42 VS.C.
s«e» 75*5 «wi ran; rUSC fees 136(0 and
13t>(m); 33 USJC. MCS. Uftl, 1319(g). 1419, and
1418; 42 US C MCa. 6912.6928. and W91{«)
and 6992(d).
2. Section 22-38 is revised to read as
followr
{22.38 Supplemental tulaa of practice
eowmfno. the administrative assessment
of Class II penalties under me dean Water
Act
(a) Scope of these supplemental rules
These supplemental rules of practice
shall govern, in conjunction with the
preceding Consolidated Rules of
Practice {40 CFR part 22), administrative
proceedings for the assessment of any
Class U avil penalty under section
309(g) of the Clean Water Act (33 US.C
1319[g))
(b) Consultation with states The
Administrator will consult with the slate
in which Uw alleged violation occurs
before taming a. Gnat order assessing a
Class 0 civil penalty.
(cj Public notice. Before issuing a final
order assessing a Class (I civil penalty,
the Administrator will provide public
nobce of the complaint.
(d) Comment by a person who a not a
party. A person not a party to the Class
U proceeding who wiahea to comment
upon a complaint must file written
comments with the Regional Hearing
Clerk within 30 days aflat public notice
of the complaint and serve a copy of the
comments upon each party. For good
causa shown the Administrator, the
Regional Administrator, at the Presiding
Officer, as appropriate, may accept late
comments The Administrator will give
any person who comments on a
complaint notice of any hearing and
notice of the final order assessing •
penalty. Although commenters may be
heard and present evidence at any
hearing held under section 3Q9(g) of the
Act commenters shall not be accorded
party status with nght of cross
examination unless they formally move
to intervene and are granted party
status under 122J1.
(e) Administrative procedure and
judicial review. Action of the
Administrator for which review could
have been obtained under section
S00(b)(t) of the Act shall not be aubfect
to review in an administrative
proceeding for the assessment of Class
II civil penalty under section 308(g).
(0 Petitions to set aside aa order and
to provide a heormg If no hearing on
the complaint is held before Issuance of
an order assessing a Class U civil
penalty any person who-commented on
the complaint may petition the
Administrator, within 30 days after
issuance of the order, to set aside the
order and to provide a hearing on the
complaint If the evidence presented by
the petitioner hi support of die petition
is material and was not considered in
the issuance of the order, the
Administrator will immediately set
aside the order and provide a hearing in
accordance with the Consolidated Rules
of Practice and these supplemental rules
of practice If the Administrator denies a
hearing under section 309fgK4)(C) of the
Act, the Administrator wdl provide to
the petitioner, and publish in the Federal
Register, notice of and the reasons for
the denial
(FR Doc. 90-13347 Filed 6-11-90; 145 am]
-------
-------
III.B.3
"Relationship of Section 309(a) Compliance Orders to Section 309(g)
Administrative Penalty Proceedings", distributed August 28, 1987. Includes
transnuttal memorandum covering items III.B.3 through 11, this Compendium.
-------
-------
5tO S'.,,
f _ 'f
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
AUG 28 1987
MEMORANDUM
SUBJECT: Guidance Documents and Delegations for Implementation
of Administrative Penalty Authorities Contained in
1987 Clean ./ater Act
FROM:
Assistant Vinr i s
for Wat-er
LJThomas L. Adams, Jr. /A*^v/ Wfo^
Assistant Administrator for'Enforcement
and Compliance Monitoring/
L
TO: Water Division Oir^ctors, Reaions I-X
Regional Counsels, Regions I-X
Environmental Services Division ^ rectors
Regions III, VI
Assistant Reaional Administrator -jr Policy and
Management, Region VII
Attached are final guidance documents and delegations
necessary for implementation of the new administrative penalty
authorities contained in the 1937 amendments to the Clean Water
Act. You were sent copies of the procedural rules for Class I
and Class II proceedings on August 12. Notices for these
procedural rules were also published in the Federal Register on
August 17. Copies of the Federal Register documents are
enclosed for your reference*
This new administrative penalty authority provides the Agency
with the opportunity to significantly increase the effectiveness
of its Water Quality Enforcement program. We are fully committed
to extensive use of administrative penalties and urge the Regions
to guickly get the necessary processes and redelegations in place
for prompt use of this authority. Headguarters offices will make
every effort to support the Regions in the use of this enforcement
mechanism and to resolve any problems which may develop during
«.he initial implementation. The Regions should immediately proceed
to develop written redelegations where the Regional Administrator
wishes to redelegate some or all of these authorities.
-------
- 2 -
With the issuance of these materials, the Regions are now
in a position to begin using administrative penalty authority
sublet to *"° *»•> 1*» - a t . ~"<; a** 1 -e vi": j ^r.^rs c?n :: jrrence as
t r a 1 1 / » oe r. a 1 ". / ~r'*.'n ' . "^ i . -_•:•*. -•»4.
List ~f '^"i" . •;- ra". > e -e-alty 3^ •> lance 2o_cu-'e^ts
Tw e f i -, i . ' i- : • - .- - - - . . ' > ' i ' • -i i s -M i L „ -. 7 i r •?
as Collets:
1. Belationship of S-?cti>n 309' j) Coppliv^nce Criers to Section
309{g) Aciminisf rat i /••» Deialtv Proceedings.
2. Ijilanc** ^" "" ) i ". '-or-j ' I.M jn .i-^r \ct AJninistrif. i^-?,
Ti^il ail "rtp"iiil "fo^.-j-^it °or"e 4 les .
1. Gui-iin:^ TI "t-i1-* \ :«••*« ^r-j^-pt i •* ; <"ivil 3^mit/ Actions
4. G'jidano* on " In-- ^ 1 i - - ;~ ," in \r£->*- e"ient Actions
r>. .ji * n<-^ • "•• • - '!.•>- - . rf ' " 11 - / \ j1-*' "• ..r
5. Guidance on Effect t ~- i" .J^-T ^ct \-"en'rent ' i /1 I
Penalt/ \-> -.^ssrent Language.
7. Addendum to the Clean Water Xct Civil Penalty Policy for
Administrative Penalties*
i?
8. Guidance on Notice to Public and Commenters in Clean Water
Act Class II Administrative Penalty Proceedings.
9. Guidance Regarding Regional an-J Headquarters Coordination on
Proposed and Final Vlninistrat ive Penalty Orders on Consent
under New Enforcement Authorities of the Water Qualit/
of 1987.
10. Model Forms for ^J-ninistrative Penalty Proceedings.
- Sample Letter -. :> C^-ply with State "onsultation
" 1 \ i 5 : ,r \l ^ 4-\ nis" r \f. i /- P^nait,
- For-n jf Letter t7 3esoo" 'e^t tovemg C-j^pl
for Cl^ss T >r II - ^ "\n i ^ tr ^t i /e P^ial1:/ 'SPDES Violations!
-------
- Form of Letter to
for Class I or II
Violations)
Respondent Covering Complaint
Administrative Penalty (Dredge or Fill
- Form of Complaint in 3roceeding to Assess Class I or II
Administrative Penalt/ (l*PDES Violations)
- Form of Complaint in Proceeding to Assess Class I or II
Administrative Penalty (Dredge or Fill Violations)
- Forii of Federal Register 'ijtice of Proposed Administrative
Penalty and Opportunity to Comment
- Form of Subpoena in Proceeding to Assess Class I or II
Administrative Penalty
- Form of Notice lo Comnent-^rs of Hearing to Assess Class I
or II Administrative Penalty
- Form of Consent Order Assessing Class I or II Administrative
Penalty (SPO^s Violations)
- Form of Consent Order Assessing Class I or II Administrative
Penalty {Dredge or Fill Violations)
- Form of Final Unilateral Or^er Asse ,inj Class I or II
Administrative Penalty ( .PDEJ viola- .ons)
- Form of Final Unilateral Order Assessing Class I or II
Administrative Penalty (Dredge or Fill Violations)
11. Delegations
12. Federal Register Notices for Class I and Class II Procedural
Rules
A separate Section 404 administrative penalty policy continues
under development and will be distributed to the Regions in the
near future. Pending finalization of the Section 404 guidance
document, Regions may wish to consider the May 28, 1987 draft
Section 404 penalty policy for Section 404 administrative penalty
cases.
We want to thank the Regions for their comments on the
several drafts and for their participation in the Agency workgroup
*"hat prepared the delegations, procedural rules and the guidance
documents. The workgroup included representatives from all
Regions who devoted large amounts of time to drafting and reviewing
the many documents involved. The workgroup labored under very
tight deadlines and delivered quality written products on time.
We personally are very appreciative for what really was an
extraordinary effort.
t
-------
- 4 -
We plan to hold a Clean Water \ct administrative penalty
workshop on September 16 in Washington, D.C. to explain the
delegations, procedures and guidance documents. We hope tKat
w.ll ~e a-:le to se~:J :~e cr --:re representatives -,
s :r .-e -1 . - a
each 'eg ic*
the -rorts-cp,
If /ou «*i,sw an/ a4i t
referenced in tw,e ;-i4^-ce
of "}ETM '"el. -TS 4" = -J-.J">
4 "'5-^30", -,- '-sa--a :..-:e
. - f :r~a t . ?" :" a"1/ of t~e Batters
c;ntact John lycn
:*£? Tel. ?'S
please
Attachments
cc: WocK.jrrjup Member a
-------
RELATIONSHIP OF §309(a) COMPLIANCE ORDERS
TO §309(g) ADMINISTRATIVE PENALTY PROCEEDINGS
!• Purpose
The purpose of this document is to discuss the
relationship between §309(a) administrative compliance orders
and §309(g) administrative penalty proceedings. The specific
issue is whether EPA, as a legal and policy matter, should
}oin these administrative mechanisms together in one document
that both orders future compliance and proposes administrative
penalties for past violations. This guidance concludes that
administrative compliance orders and administrative complaints
for civil penalties should be kept procedurally separate:
they should be issued and docketed as separate documents.
However, there is nothing to prevent the Regions from issuing
the two types of documents at the same time in response to a
given violation.
II. Disjrussipn
On one level it may appear quite sensible to issue one
document that contains both a §309(a) administrative order to
comply and a §309(g) administrative complaint for civil
penalties. The two actions will often be based on the same
set of facts that establish a violation. The simplicity of a
single document may be more efficient for EPA to issue, and
for an alleged violator to understand. And^to propose
administrative penalties for past violations would add
substantial leverage to the prospective commands of a
compliance order.
However, administrative compliance orders and
administrative complaints are conceptually and procedurally
very different, and there are dangers in joining the two
together. Compliance orders under §309(a) are administrative
commands; they are not adjudications of rights or liabilities,
and they do not impose any sanctions for the underlying
violation or for a violation of the compliance order itself.
Because they do not have such determinate effects they lack
"finality" and accordingly are not reviewable by a court.
(The only exception to this is the limited review that occurs
when EPA in a civil action seeks penalties for a violation of
the compliance order.) EPA has fought hard to maintain the
nonreviewability of compliance orders like those under
§309(a). To have them subject to judicial review or
adjudicatory procedures at the time of their issuance would
seriously undermine their usefulness as an enforcement tool.
On the other hand, assessment of administrative penalties
under §309(g) is an adjudicated remedy. Penalties under
either Class 1 or class II procedures can be assessed only
-------
after an opportunity for hearing and notice to the public.
Violators and members of the public can appeal EPA's findings
of violation and penalty assessments to the courts.
The most serious potential problem in joining together
§309(a) compliance orders and §309(g) administrative
complaints in the sa-e dccu-ert is that compliance orders may
directly cr irdirect.j- cecc-e s-b:ect to adjudication ar.d
judicial review. Adj-dicatory procedures will apply to the
portion of the docurert proposing administrative penalties:
violators will have a strong ircentive to force the compliance
order provisions i~to twe sa-e ady-dicatcry framework. The
ris< of this occ-rr.--r .s -cst direct if the proposed penalty
assessment is in any wa. .»n
-------
Procedural complexities are also introduced when
compliance orders and proposed penalty assessments are merged.
One of the most useful aspects of §309(a) compliance orders is
that EPA can amend them at will. Violators may argue that the
primary characteristic of the joint document is its penalty
assessment, and accordingly that the document as a whole
should be governed by the procedural rules established for
administrative complaints. There are limitations on amending
administrative complaints once a violator has filed an answer
It may be argued that EPA should be similarly limited in
amending its compliance order once an answer is filed.
Violators may also argue that other procedural limitations
applicable to penalty prcceedirgs— e.g., substitution of
parties, ard opportunities to present rebuttal evidence—
should apply to the compliance order. These extraneous issues
will complicate efforts to obtain compliance using a §309(a)
order that is attached to an administrative complaint.
There is a simple way to avoid the risks discussed above:
keep compliance orders and proposed penalty assessments in
separate documents, and do not state in the administrative
complaint that the penalty amount will depend upon meeting the
terras of a compliance order. Given current word-processing
capabilities, there should be little added administrative
burden in issuing these documents separately instead of
jointly. Also, there is no reason why the two could not be
issued simultaneously. All that needs to be done to avoid the
risks described above is to issue the compliance order and
administrative complaint separately in the first instance.
III. Conclusion
There are substantial risks in issuing §309(a) compliance
orders in the same document with §309(g) administrative
complaints. The most serious risk is that compliance orders
could become subject to administrative adjudication and
judicial review. This would sharply limit their
effectiveness. The simple route to avoiding these risks,
which the Regions are strongly urged to take, is to issue
compliance orders and administrative complaints as separate
documents.
Contacts concerning this guidance:
David M. Heineck
Office of Regional Counsel, Region 10
FTS 399-1498
Gary Hess
Office of Enforcement and Compliance Monitoring
FTS 475-8183
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— •"»
- ff
/
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III.B.4
"Guidance on Choosing Among Clean Water Act Administrative, Civil and
Criminal Enforcement Remedies", distributed August 28, 1987.
-------
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Process to Ceterm'r^e Appropriate Enforcement Option
VIOLATION
Need for court orier to
compel '-we 2 ate
F 1 1 e c t v 1 1 ac 1 1 on *
sbta n '50 a-*2 "
ce-a t 53
c'at en:
for pre
r permanent
and/or civil
Of
action £$309(O ]
n le
30ta]
or
penalties
admin i -, fat /e corn-
s' lance i
$25,000 dnd $125,000 issue
admi "' strati /e complaint under
;'a;> It procedures
2 To assess penalties of up to
$25.000 Issue administrative
complaint under Class I
procedures [$309(qH2)(A) ]
[» B The dotttd 1 '"«* '" th« *00»« CMrt ire •n«*nl »Q inuUrjte t«O principle^ Fir^t if
i Civil or cMMlrul action Mas »1re*d/ 0««n 'ruiitea « p«rs
•fliligeotl/ prosecuting' a ctaim for lanmistrali»e penalties under comparaole itate lutnorit/
n>a/ not oe suoject to a civil jenaU/ ict an unoer ^]09(aj See f}09(gH6Mn) an<>
sections of tnis guidance ]
-------
GUIDANCE ON CHOOSING AMONG
CLEAN WATER ACT ADMINISTRATIVE,
CIVIL AND CRIMINAL ENFORCEMENT REMEDIES
August. 1987
-------
In the legislative history to the Water Quality Act of
1987, Congress indicated that judicial rather than
administrative enforcement is more appropriate for certain
types of cases:
This authority to issue administrative peralty
orders is --te-ded to cc-ple-e-t a-d -ct to replace a
/^gcrc-s c.... ;-^_c^a^ e-fcrre-e-t prcgra-.. Civi^
judicial e~fcrce-e-t ~s a ss-es cf .a* cr cc-tested peralt/
assessments, cases re:r-.-r--g .-^-ctive relief,
ser~c-s v_c<.at_3-s cf t-e net, or large ce-alt
actions, a-d cases --ere re-ed.es are sought requiring
significant construction or capital investment. * The
addition of this enforcerent tool is based n part on
the Agency's assurance that it does not intend*to
retreat from vigorous judicial enforcement of Clean
Water Act violat.ors
S Rep No. SS-50, 39th Ccrgress, 1st Session (to accompany
S 1123) (1385). The follcrf.ng g-.darce is :?eant to be"
consistent with th.s Co-.gress.s-al directive: admnistrative
penalties should s-pple-e*»t, -ot replace, ^udic^al action
One q-al-.ficat.cn srould be added Although this
guidance nay recorr-end a particular e^force-ent option for
particular types of violations, other factors-- such as Agency
priorities and available resc-rces-- --st also e"ter into tre
enforcement decision.
1. A civil ^jdicial act lor is ~cre 1 i'
-------
II. Discussion
A. Purpose
The purpose of this document is to discuss the various
enforcement alternatives under the Clean Water Act, including
the recently-added option of administrative penalties, and to
discuss the types of violations that are most appropriate for
each option. This guidance is primarily directed to NPDES
permit-related violations, but it is also consistent with
guidance for Section 404 enforcement (see related guidance).
3. Background
The Water Quality Act of 1987 greatly expanded EPA's
enforcement options under the Clean Water Act by authorizing
the Agency to assess penalties administratively. Prior to
this legislation, EPA had to obtain a court order--either
through a civil action [§§309(d) or 311(fa)(6)(B)] or a
criminal action ^§309(c)]—to impose monetary penalties for
Clean Water Act violations. The administrative enforcement
authority granted by §309(g) provides a very useful and
flexible third option for imposing penalties.
C. Decision Criteria
EPA may impose penalties under §309(g) for virtually the
entire range of violations that can be addressed through
judicial actions and administrative compliance orders under
§§309(a) through (d). The only exception is that
administrative penalties, unlike judicially-imposed penalties,
may be imposed only for violations of underlying requirements
of the Act and not for violations of §309(a) compliance
orders.I/ Since EPA as a general rule should choose the least
resource-consuming enforcement option that will do the }ob,2/
and administrative penalty proceedings under §309(g) should be
both effective and much less onerous than civil judicial
actions, the real issue is when not to use this administrative
penalty authority. The following discussion, like the
flowchart at the beginning of this document, approaches the
issue from this perspective.
i/ A compliance order that does not expressly excuse
penalties does not limit EPA's authority to assess an
administrative penalty for that violation. Cf.. U.S. v.
Metropolitan District Commission. 23 E.R.C. 1350, 1355-56,
1359, 1360 (0. Mass. 1985).
2/ An important exception to this general rule is
that prosecutorial considerations on the part of EPA and the
Department of Justice may independently indicate the need for
criminal prosecution, even if a civil action or administrative
enforcement would achieve compliance.
-f^ '
-------
requirements of §309(g) mean that there are uncertainties as
to the amount of penalty that ultimately will be assessed, and
a delay of at least 60 days from the date of the proposed
penalty assessment until that assessment becomes effective.
This may be enough to remove the inducement to stop ongoing
violations.
In the above situatio-s, or in a-.y situation where the
noncor.pllarce is serious and cortinuir.g ard the violator is
uncooperative, EPA should commence a civil action to obtain a
TRO or preliminary injunction enjoining further violations.
In addition, if the violator must take specific measures to
achieve compliance ard the measures are complicated, costly or
require a significant period of tine to implement, a civil
action should be commenced to obtain an appropriate mandatory
injunction. Whenever an action is initiated to obtain a TRO
or an injunction, in the interests of efficiency and case
strategy all claims for civil penalties generally should be
included in that action. There may be occasions, however,
when the Agency may choose to file a civil action for
injunctive relief alone.
2. Criminal enforcement rather than administrative
penalty sroceedirgs should be taken for serious
violations that are knowing or negligent.
In addition to establishing administrative penalty
provisions, the Water Quality Act of 1987 expanded the
criminal sanctions of Clean Water Act §309(c). The higher
levels of fines and imprisonment that were established
constitute a strong remedy that Congress clearly intended
should be used in appropriate circumstances.
Whether a particular matter should be considered for
criminal prosecution will be determined on the basis of
criteria which include the following:
a. Was the conduct knowing or negligent?
b. Was the conduct egregious in nature (e.g., a
blatant disregard for commonly known
requirements)'
c. Did the conduct cause foreseeable environmental
harm?
d. Was the conduct characteristic of a type which
especially should be deterred"5
-------
e. Was tr.e violator frci a category to which it is
especially irpcrta-t to convey a deterrent
message?
f. Did the conduct involve a particularly
dangerous material?
respc-s.c.e "rpcrate officers cr erplc%ees~
The list accve s-c-ld -ct ce ccrs.-ered exclusi'. e. Otr.er
circ-rsta-ces ~ay arise ••-...cr. also -a
-------
tiay indicate the need to initiate a civil action, to preserve
negotiating flexibility and to avoid placing a cap on amounts
that the Administrative Law Judge may consider. On, the other
hand, administrative proceedings are generally preferred since
they require less of a commitment of Agency time and
resources. In these circumstances the Regions will have to
weigh the resource and penalty factors on a case-by-case basis
in deciding between the judicial and administrative penalty
options.
EPA national policy or guidance may also require the
choice of a particular enforcement option. An example is the
April 1934 guidance supporting the National Municipal Policy,
which presuT.es judicial enforcement in cases */here compliance
will not be achieved by July 1, 1988. Other EPA policies
requiring court enforcement may be developed in the future.
4. EPA nust **eigh ^e costs of pursuing an
administrative penalty action in deciding whether
and when to pursue relatively s^all penalty
claims.
Up to this point, this document has suggested that
§309 (g) proceedings generally should not be initiated where a
higher level of enforcement (civil or criminal ]udicial
action) is needed. This leaves a wide variety of violations
that are good candidates for administrative penalties. Types
of violations that will generally be more appropriate for
administrative penalties are late or non-submission of DMRs or
other permit-required reports, and effluent violations caused
by poor 0 & M (as opposed to lack of treatment facilities,
which may require an injunction to correct) .
For violations that warrant only minor penalties, the
Regions will have to weigh the benefits of enforcement against
its costs. The costs include potential evidentiary hearings,
solicitation and consideration of public comment, and
potential judicial appeals. However, these costs should not
necessarily deter the Regions from pursuing some number of
relatively small administrative penalties: taking
administrative enforcement against one of a number of
comparable minor violators, where it may be impractical to
pursue penalties against the entire group, may deter the group
as a whole from similar violations.
III. Conclusion
The administrative penalty authority given to EPA by the
Water Quality Act of 1987 can be used for a wide variety of
violations. Administrative penalties will be particularly
useful in dealing with violations that are serious but that in
-------
themselves do r.st -s-ally just.f/ a :udicial enforcerent
action— for exarple, late or non-reporting of DMRs. Only
certain categories of violations should not be addressed
through 5309(g) administrative penalties: violations
requiring TROs, in^unctive relief, criminal sanctions, or
civil penalties of more than $125,000; and violations where
national EPA policy calls for court enforce-ent. The wide use
of §3C9'g) .- aptrrcpr.ate circurstarces u.ll greatly
srrergtre- £?n's ac^l.t^. to e-.s-re cc-p.^a-ce **tr. the Clea-
water Act
Office cf -eg-s-al Cc-rse^, Reg.cn 10
FTS 399-1493
Gary Hess
Office of Enforcerent and Compliance Monitoring
FTS 475-3133
-------
GUIDANCE ON CHOOSING AMONG
CLEAN WATER ACT ADMINISTRATIVE,
CIVIL AND CRIMINAL ENFORCEMENT REMEDIES
-------
-------
Decision-Making Process to Determine AppropriateEnforcement Option
Under Clean Mater Act §309
VIOLATION
Need for court order
compel immediate
compl unce7
to
N
Evidence of criminal
violations, either
negligent or knowing7
File civil action to
obtain TRO, and in
general include claims
for injunctive relief
and civil penalties
[$$309(b) and
N
Need for prelimi nary
or permanent injunction,
and/or civil penalties
of more than $125.OOP7
N
Precedential
N
egal issue7
Commence criminal in-
vestigation and enforce-
ment action [$309(c)]
File civil action to
obtain injunction and/
or court-imposed civil
penalties
[$$309(b) and
Are violations continuing
or 1ikely to recur7
N
I Issue administrative com-
} pi lance order CS309(a)3.
Appropriate to assess
administrative civil
penalties7
I END I
To assess penalties of between
$25,000 and $125,000- issue
administrative complaint under
Class II procedures
[§309(gX2XB>] „-
To assess penalties of up to
$25,000 issue administrative
complaint under Class I
procedures [^309(g)(2)(A)]
[N B The (lotted lines in the above chart are meant to Illustrate two principles First, 1f
a civil or criminal action has already been Initiated, a parallel criminal or civil enforcement
action should be taken only if consistent with EPA guidance on parallel proceedings Second,
for violations that are the subject of a civil action for court-imposed penalties
administrative penalties under §309(g) may not be assessed for the same violations Another
factor to consider is that violations for which an authorized NPOES state has commenced and is
"diligently prosecuting" a claim for administrative penalties under comparable State authority
may not be subject to a civil penalty action under §309(0) See §309(g}(6)(11) and related
sections of this guidance ]
-------
-------
2 -
II. Discussion
A. Purpose
The purpose of this document is to discuss the various
enforcement alternatives under the Clean Water Act, including
the recently-added option of administrative penalties, and to
discuss the types of violations that are most appropriate for
each option. This guidance is primarily directed to NPDES
permit-related violations, but it is also consistent with
guidance for Section 404 enforcement (see related guidance).
B. Background
The Water Quality Act of 1987 greatly expanded EPA's
enforcement options under the Clean Water Act by authorizing
the Agency to assess penalties administratively. Prior to
this legislation, EPA had to obtain a court order—either
through a civil action [§§309(d) or 311(b)(6)(B)] or a
criminal action [§309(c)]—to impose monetary penalties for
Clean Water Act violations. The administrative enforcement
authority granted by §309(g) provides a very useful and
flexible third option for imposing penalties.
C. Decision Criteria
EPA may impose penalties under §309(g) for virtually the
entire range of violations that can be addressed through
judicial actions and administrative compliance orders under
§§309(a) through (d). The only exception is that
administrative penalties, unlike judicially-imposed penalties,
may be imposed only for violations of underlying requirements
of the Act and not for violations of §309(a) compliance
orders.I/ Since EPA as a general rule should choose the least
resource~consuming enforcement option that will do the job,2/
and administrative penalty proceedings under §309(g) should be
both effective and much less onerous than civil judicial
actions, the real issue is when not to use this administrative
penalty authority. The following discussion, like the
flowchart at the beginning of this document, approaches the
issue from this perspective.
i/ A compliance order that does not expressly excuse
penalties does not limit EPA's authority to assess an
administrative penalty for that violation. Cf.. U.S. v.
Metropolitan District Commission. 23 E.R.C. 1350, 1355-56,
1359, 1360 (D. Mass. 1985).
2/ An important exception to this general rule is
that prosecutorial considerations on the part of EPA and the
Department of Justice may independently indicate the need for
criminal prosecution, even if a civil action or administrative
enforcement would achieve compliance.
-------
-------
- 3
In the legislative history to the Water Quality Act of
1987, Congress indicated that judicial rather than
administrative enforcement is more appropriate for certain
types of cases:
This authority to issue administrative penalty
orders is intended to complement and not to replace a
vigorous civil judicial enforcement program. Civil
judicial enforcement is a keystone of successful
enforcement of the Act and necessary for cases
involving novel issues of law or contested penalty
assessments, cases requiring injunctive relief,
serious violations of the Act, or large penalty
actions, and cases where remedies are sought requiring
significant construction or capital investment. The
addition of this enforcement tool is based in part on
the Agency's assurance that it does not intend to
retreat from vigorous judicial enforcement of Clean
Water Act violations.
S. Rep. No. 99-50, 99th Congress, 1st Session (to accompany
S. 1128) (1985). The following guidance is meant to be
consistent with this Congressional directive: administrative
penalties should supplement, not replace, judicial action.
One qualification should be added. Although this
guidance may recommend a particular enforcement option for
particular types of violations, other factors— such as Agency
priorities and available resources— must also enter into the
enforcement decision.
1. A civil judicial action is more likely to be
- - appropriate when there is a need for a court order
directing immediate or long-term compliance
measures (a TRO or an imunction).
A basic limitation of the administrative penalty
authority under §309(g) is that it does not grant EPA any
power to directly compel a violator to stop continuing
violations. The only direct authority under this provision is
to assess civil penalties. Of course, the prospect of a
significant civil penalty for past and ongoing violations can
be a strong inducement to comply. However, there will be
situations where this inducement, accompanied by a separate
§309(a) compliance order, will not be enough. The $125,000
ceiling on administrative penalties may be insufficient to
discourage continuing violations, for example where the cost
of compliance or the economic benefit is high. Even if a
penalty of less than $125,000 should be enough to deter
ongoing noncompliance, the adjudicatory and public involvement
-------
-------
requirements of §309(g) mean that there are uncertainties as
to the amount of penalty that ultimately will be assessed, and
a delay of at least 60 days from the date of the proposed
penalty assessment until that assessment becomes effective.
This may be enough to remove the inducement to stop ongoing
violations.
In the above situations, or in any situation where the
noncompliance is serious and continuing and the violator is
uncooperative, EPA should commence a civil action to obtain a
TRO or preliminary injunction enjoining further violations.
In addition, if the violator must take specific measures to
achieve compliance and the measures are complicated, costly or
require a significant period of time to implement, a civil
action should be commenced to obtain an appropriate mandatory
injunction. Whenever an action is initiated to obtain a TRO
or an injunction, in the interests of efficiency and case
strategy all claims for civil penalties generally should be
included in that action. There may be occasions, however,
when the Agency may choose to file a civil action for
injunctive relief alone.
2. Criminal enforcement rather than administrative
penalty proceedings should be taken for serious
violations that are knowing or negligent.
In addition to establishing administrative penalty
provisions, the Water Quality Act of 1987 expanded the
criminal sanctions of Clean Wrvter Act §309(c). The higher
levels of fines and imprisonment that were established
constitute a strong remedy that Congress clearly intended
should be used in appropriate circumstances.
Whether a particular matter should be considered for
criminal prosecution will be determined on the basis of
criteria which include the following:
a. Was the conduct knowing or negligent?
b. Was the conduct egregious in nature (e.g., a
blatant disregard for commonly known
requirements)?
c. Did the conduct cause foreseeable environmental
harm?
d. Was the conduct characteristic of a type which
especially should be deterred?
-------
-------
e. Was the violator front a category to which it is
.sr especially important to convey a deterrent
message?
t
f. Did the conduct involve a particularly
dangerous material?
g. Did the violation reflect conduct by
responsible corporate officers or employees?
The list above should not be considered exclusive, other
circumstances may arise which also make a particular matter
appropriate for criminal consideration. If any such factors
are present, the matter should be forwarded to the region's
Office of Criminal Investigations.
Parallel civil judicial proceedings (as well as
administrative penalty proceedings) generally should be held
in abeyance so long as a criminal investigation or prosecution
is underway, unless it is essential to obtain prompt
injunctive relief to abate an ongoing hazard to human health
or the environment. Whenever a Region has concerns regarding
the appropriateness of initiating parallel civil and criminal
enforcement proceedings, the Office of Regional Counsel for
the Region should contact the OECM Office of Criminal
Enforcement, at (FTS) 475-9660.
3- Toassess total civil penalties of morethan
$125,000. or where required by national EPA
policy/ EPA must commence judicial action rather
than administrative penalty action.
The maximum amount of civil penalties that can be
assessed administratively under §309(g) is $125,000.
Section 309(g)(3) of the Act and other sections of this
guidance set out the factors to consider in determining the
appropriate penalty amount to be collected.
It is clear that EPA must initiate a judicial civil
action to assess penalties greater than $125,000. For civil
penalties of less than $125,000, there still may be situations
where a civil action rather than an administrative penalty
proceeding is the better option, to preserve the possibility
of assessing penalties of more than $125,000 for given
violations. If EPA believes that the §309(g) process results
in a penalty assessment that is too low, there is no "second
chance" to obtain higher penalties through a §309(d) or
§311(b)(6) civil action.
The decision becomes difficult as the appropriate bottom-
line civil penalty approaches $125,000. On the one hand, this
-------
-------
may indicate l3Te need to initiate a civil action, to preserve
negotiating flexibility and to avoid placing a cap on amounts
that the Administrative Law Judge may consider. On the other
hand, administrative proceedings are generally preferred since
they require less of a commitment of Agency time and
resources. In these circumstances the Regions will have to
weigh the resource and penalty factors on a case-by-case basis
in deciding between the judicial and administrative penalty
options.
EPA national policy or guidance may also require the
choice of a particular enforcement option. An example is the
April 1984 guidance supporting the National Municipal Policy,
which presumes judicial enforcement in cases where compliance
will not be achieved by July 1, 1988. Other EPA policies
requiring court enforcement may be developed in the future.
4. EPA must weigh the costs of pursuing an
administrative penalty action in deciding whether
and wfren to pursue^ relatively small penalty
claims._
> Up to this point, this document has suggested that
§309(g> proceedings generally should not be initiated where a
higher level of enforcement (civil or criminal judicial
action) is needed. This leaves a wide variety of violations
that are good candidates for administrative penalties. Types
of violations that will generally be more appropriate for
administrative penalties are late or non-submission of DMRs or
other permit-required reports, and effluent violations caused
by poor O & M (as opposed to lack of treatment facilities,
which may require an injunction to correct).
For violations that warrant only minor penalties, the
Regions will have to weigh the benefits of enforcement against
its costs. The costs include potential evidentiary hearings,
solicitation and consideration of public comment, and
potential judicial appeals. However, these costs should not
necessarily deter the Regions from pursuing some number of
relatively small administrative penalties: taking
administrative enforcement against one of a number of
comparable minor violators, where it may be impractical to
pursue penalties against the entire group, may deter the group
as a whole from similar violations.
III. Conclusion
The administrative penalty authority given to EPA by the
Water Quality Act of 1987 can be used for a wide variety of
violations. Administrative penalties will be particularly
useful in dealing with violations that are serious but that in
-------
-------
themselves do not usually justify a judicial enforcement
action— Jpr example, late or non-reporting of DMRs. Only
certain categories of violations should not be addressed
through §309(g) administrative penalties: violations
requiring TROs, injunctive relief, criminal sanctions, or
civil penalties of more than $125,000; and violations where
national EPA policy calls for court enforcement. The wide use
of §309(g) in appropriate circumstances will greatly
strengthen EPA's ability to ensure compliance with the Clean
Water Act.
Contacts on this guidance:
David M. Heineck
Office of Regional Counsel, Region 10
FTS 399-1498
Gary Hess
Office of Enforcement and Compliance Monitoring
FTS 475-8183
-------
-------
III.B.5,
"Guidance on State Action Preemption Civil Penalty Actions under the
Federal Clean Water Act", distributed August 28, 1987.
-------
-------
GUIDANCE ON STATE ACTION
PREEMPTING CIVIL PENALTY ACTIONS
UNDER THE FEDERAL CLEAN WATER ACT
-------
-------
GUIDANCE ON STATE ACTION
PREEMPTING CIVIL PENALTY ACTIONS
UNDER THE FEDERAL CLEAN WATER ACT
I. Introduction
The Water Quality Act of 1987, which on February 4, 1987,
amended the Clean Water Act, contains language limiting EPA's
authority to commence a judicial action for civil penalties
under Sections 309(d) or 311(b) of the Act under certain
narrowly circumscribed conditions relating to ongoing State
administrative civil penalty actions.I/ This guidance
addresses the question of when, and under whatr-Tjonditions,
might the commencement and diligent prosecution, or
completion, of a State civil penalty action preempt EPA
enforcement action for the same violation or violations.2/
II. what Federal^ Enforcement Actions can be Preempted by the
Appropriate State Action?
The operative language of the Act, as amended, is in
Section 309(g)(6)(A). The language is clear that the actions
that may under certain circumstances be preempted, are
"...civil penalty action[s] under subsection (d) of this
section [§309(d), judicial civil penalties] or Section 311(b)
I/ The relevant section is 309(g)(6)(A), which
follows:
"(6) Effect of Order.- (A) Limitation On Actions Under
Other Sections. Action taken by the Administrator or the
Secretary, as the case may be, under this subsection
shall not affect or limit the Administrator's or
Secretary's authority to enforce any provision of this
Act; except that any violation - (i) with respect to
which the Administrator or the Secretary has commenced
and is diligently prosecuting an action under this
subsection, (ii) with respect to which a State has
commenced and is diligently prosecuting an action under a
State law comparable to this subsection, or (iii) for
which the Administrator, the Secretary, or the State has
issued a final order not subject to further judicial
review and the violator has paid a penalty assessed under
this subsection, or such comparable State law, as the
case may be, shall not be the subject of a civil penalty
action under subsection (d) of this section or
section 311(b) or section 505 of this Act."
t
2/ Many of the same considerations and conclusions also
may apply to State action precluding citizen enforcement
actions for civil penalties under CWA §505.
-------
[judicial civil penalties for spills of oil or designated
hazardous'substances] or Section 505 (citizens suits]."
[Material in brackets added.] Therefore it is clear that
EPA's authority to issue administrative orders for compliance
under Section 309(a), to seek judicial injunctive relief under
Section 309(b), to judicially prosecute criminal violations
under Section 309(c), and to administratively assess civil
penalties under Section 309(g) are unaffected by the new
language regarding preemption by state action. EPA's
authority to issue and enforce administrative .orders for
compliance under Section 309(a) is not only exempted from this
new limitation, but is explicitly preserved by new
Section 309(g)(11).
It is similarly clear from the legislative history that
the new language on preemption of Federal judicial civil
penalty actions "... is not intended to lead to the disruption
of any Federal judicial penalty action then underway, but
merely indicates that a Federal judicial civil penalty action
or a citizen suit is not to be commenced if an administrative
penalty proceeding is already underway." Remarks of
senator Chafee, Cong. Record, Jan. 14, 1987, p. S737.
(See Attachment.)
In summary, the federal enforcement actions affected by
the new preemption language of Section 309(g)(6)(A) are
limited to:
1. Judicial Civil Penalties for the same violations
under Section 309(d); and
2. Judicial civil Penalties for the same violations
under Section 311(b).
The preemption does not affect:
1. Administrative Orders for compliance under
Section 309(a);
2. Judicial Injunction Actions under Section 309(b);
3. Criminal Actions under Section 309(c);
4. Ongoing Judicial Civil Penalty Actions under
Section 309(d);
5* Administrative Civil Penalty Assessments under
Section 309(g); or
6. Any Federal enforcement action to the extent it
addresses violations different from those
addressed in the appropriate State penalty
action.
-------
III. What State Actions Can Preempt Commencement of Federal,
Judicial Penalty Actions Under Sections 309fd) and 311fbi?
EPA's policy can be summarized as follows:
Absent compelling circumstances. EPA will not commence
a Judicial civil penalty actiop to collect a penalty for anv
violation for which an approved NPDES State has collected, or
has commenced and is diligently prosecuting under comparable
authorities and bv comparable procedures, an appropriate and
adequate administrative civil penalty. The factors which
define comparable authorities and procedures, and an adequate
penalty, are described below.
A. The State Must be Implementing an Approved NPDES
Programr
In the words of Senator Chafee on the floor of the
Senate (Cong. Record, Jan. 14, 1987, p. S737), "... the
limitation on Federal civil penalty actions clearly applies
only in cases where the State in question has been authorized
under Section 402 to implement the relevant permit program."
'in other words, the first criterion for determining whether
State preemption is possible is to ascertain whether the
relevant State is authorized to implement the relevant Clean
Water Act program (e.g. direct discharge, pretreatment, dredge
and fill, sludge disposal) within its borders. If not, EPA
and the state would be enforcing distinct legal requirements
(e.g. a Federal v. a State discharge permit) and thus would be
enforcing against different violations and not be subject to
the §309(g)(6) bar against judicial penalty actions for the
same violation.
B. The State Action must be Concludedr or Commencedand
Diligently Prosecuted:
The second criterion comes directly from the statutory
language: Has the State either "... commenced and is [it]
diligently prosecuting an action ...", or has the State "...
issued a final order not subject to further judicial review
and the violator has paid a penalty ..."? Unless the State
administrative civil penalty action has been concluded as
noted, or has been commenced and is being diligently
prosecuted, no preemption can occur. Thus the mere
commencement of a State administrative penalty action is
insufficient to preempt a federal action if there is evidence
that the state action is collusive, or is not being prosecuted
diligently for reasons either intentional or wholly
inadvertent as, for example, when resource constraints prevent
a State from holding dr concluding requested administrative
hearings in a timely manner. The determination of whether a
State administrative penalty action is proceeding with due
diligence must be made on a case by case basis, with the
realization that Congress did not intend partial or inadequate
-------
State action to be a shield for violators of the Act, but
rather intended to prevent unnecessarily redundant actions at
the State and Federal levels.
C. The State Statutory Provision roust be Comparable to
Section 309 fa):
The final set of criteria for determining if Federal
judicial penalty action nay be preempted are found underlying
the statutory wording limiting preemption to cases where the
State administrative penalty action is concluded, or has been
commenced and is being diligently prosecuted "... under a
State law comparable to this subsection ...", meaning
Section 309(g). Again Senator Chafee's remarks on the Senate
floor, Cong. Rec., January 14, 1987, p. S737, are extremely
helpful in interpreting the meaning of the phrase "...
comparable to this subsection ...." Senator Chafee lists the
following elements which must be present in the State
statutory provision to make it "comparable" and thus able to
support a State administrative penalty action which can
preempt a subsequent federal judicial civil penalty action:
1. The right to a hearing;
2. Public participation procedures similar to those
set forth in section 309(g);
3. Analogous penalty assessment factors;
4. Analogous judicial review standards; and
5. Other provisions analogous to the other
elements of Section 309(g).
The following paragraphs expand these elements. To be
"comparable," and thus able to support a State action capable
of preempting a subsequent federal judicial penalty action,
the state statute must provide:
1. The right of the person to be assessed an
administrative penalty to a hearing analogous to
that provided in Section 309(g)(2), which provides
at least a reasonable opportunity to be heard and
to present evidence in all cases and, in cases
where the potential liability exceeds $25,000, the
opportunity for a hearing on the record in
accordance with Administrative Procedure Act
procedures (5 U.S.C. §554).
2. Public participation procedures which must be
analogous to Section 309(g)(4), which provides
that EPA must give the public notice of any
proposed administrative penalty assessment, the
right of any person who commented on a proposed
-------
penalty assessment to be heard and to present
- evidence in any hearing requested by the violator,
and if the violator does not request a hearing,
the right of a prior coramenter to petition EPA to
set aside the penalty and to hold a hearing
thereon.
3. Penalty assessment factors analogous to those
enumerated in Section 309(g)(3). Based on
language in the Conference Report, Cong. Rec.,
October 15, 1986, p. H10570,!/ EPA believes that
for preemption to occur, it is not sufficient that
the maximum potential penalty liability under the
State statute be equivalent to the federal limits,
or that the factors to be considered in arriving
at the appropriate penalty be comparable, but also
that the actual penalty collected or assessed must
be adequate and appropriate. This interpretation
is expressed clearly in the Conference Report. It
also is consistent with EPA's current policy which
holds that a prior State judicial penalty action
yielding a grossly deficient penalty does not
preempt a subsequent federal "overfiling" for a
more adequate civil penalty. This criterion is
also reflected in the general principle enunciated
above; namely that EPA will not commence a
judicial civil penalty action for any violation
for which an approved NPDES state has already
collected, or has commenced and is diligently
prosecuting, under comparable authorities and by
comparable procedures, an appropriate and adequate
administrative penalty.
4. Standards of judicial review analogous to
Section 309(g)(8), which provides that judicial
review can be had by filing an appeal within 30
days after penalty assessment, and that the court
shall not set aside or remand the penalty unless
there is not substantial evidence in the record
supporting the finding of a violation or unless
the assessment constitutes an abuse of discretion.
The requirement that to be capable of preempting
federal action, the State statute must impose such
a heavy burden on the appellant, and grant such >
3/ "When a State has proceeded with an enforcement
action relating to a violation with respect to which the
Administrator or the Secretary is authorized to assess a civil
penalty under this provision the Administrator and the
Secretary are not authorized to take any action under this
subsection if the State demonstrates that the state-imposed
penalty is appropriate."
/
-------
deference to the State agency's decision, is
' reasonable because a lesser standard of judicial h
review would undermine the integrity and
predictability of the State administrative penalty
process.
5. Among the other elements alluded to by Senator
Chafee, that must be present in a State statute
which might preempt federal judicial penalty
action, is a system for judicial collection of
unpaid administrative penalties analogous to
Section 309(g)(9). This Section provides for a
streamlined judicial assessment of the unpaid
penalty plus interest, attorneys fees, court
costs, and an additional quarterly nonpayment
penalty of 20% of the aggregate amount owed at the
beginning of such quarter. The validity and
amount of the administrative penalty are not
subject to review in the collection action. This
requirement is important because the absence of
such a streamlined judicial collection system,
which insulates the issues of penalty validity and
amount from a second judicial review, again would
greatly undermine the predictability of the
State's process. EPA should certainly not be
preempted from, nor should it hesitate to commence
a judicial penalty action against a violator who
evades payment, for whatever reason, of a State-
assessed administrative penalty.
In summary, in order to preempt federal judicial
penalty action, the NPDES State must have collected, or at
least commenced and be diligently prosecuting, an appropriate and
adequate administrative penalty under a statute comparable to
Section 309(g) in at least the following ways:
1. Right to a hearing;
2. Analogous rights of public participation;
3. Equivalent civil penalty maximum liabilities;
4. Analogous penalty assessment factors;
5. Analogous standards of judicial review; and
6. Analogous collection authorities and streamlined
judicial collection procedures.
-------
IV. Final Thoughts
*
From the foregoing it should be clear that federal
judicial penalty actions are not likely to be preempted by
state administrative penalty actions unless States begin to
implement legislation specifically patterned on
Section 309(g). Until that time, which EPA welcomes, the
individual State/EPA Enforcement Agreements might be the
appropriate forum for establishing some voluntary ground rules
for preventing unnecessary duplication of effqrts between EPA
and approved NPDES States. Nothing in this guidance should be
construed as limiting the ability of the States and EPA to
agree to certain rules or principles in furtherance of their
cooperative efforts to implement strong and consistent NPOES
programs.
For further information or clarification of this
guidance, contact Jed Z. Callen, Esq. at FTS 597-9882 or
Gary Hess, Esq. of OECH at FTS-475-8183.
Attachment: [Floor Remarks of Senator Chafee]
-------
,/cnLarv 14, 1987
CONGRESSIONAL RECORD — SENATE
S*
thorny aggressively against illegal pol-
i "-.rs even if a irc-"0'tndum of
9 "• e-n*nt .s nnt^conrlua-'d with the
*• '"•etarj of the A*rm)
Tl - to-pb enforcer1' r •• • ord— ard
11 Corps of Engineer*; «s .. o'ved i-i
*, — -hows the corp*, 1'- not been
•o'ou,. enough aga.ir. > _al di'rnp-
Now »e have r.ivtn L.'A fie au
to rrr>\<* atrai •*•••. » «. e po-lut
cial penalty action then underway, but
merely mdicatfs tr-at a Federal judi-
cial ciul pena.t/ action or a citizen
suit is not to uc cor-mtnced if an ad-
ministrative i*«ralt. proceeding is al-
ready unde1"' •." _ ,
paraera.jh 30S •*» *ctj» out
j"s tint prod tre c *i<.<*n suits
uVrc the Federal Govi-nmunt or a
State has commenced and .5 diligently
prosecuting an admir.»si*attve civil
peraKy action or has a'-cid,. issued'a
f.iial adr^mstratue civ.l penally order
not subject to further rtv»ew ard the
v.olator has paid the penalt" The
same provision limits Fede-al cu <1 pen-
alty actions under subsections 309(d>
and 31Kb) for any violation of the
Federal water Pollution. Control Act.
While redundant enforcement activity
is to be avoided and State action to
remedy a violation of Federal law is to
be encouraged, the limitation on Fed-
eral civil penalty actions clearly ap-
plies onl> in cases where the State tn
question has been autborued under
section 402 to Implement the relevant
permit program
A single discharge may be a violation
of both S'ate and Federal laa and a
State is entit'ed to enforce us o">n law
However, only if a State has received
authorization under section 402 to Im-
plement a particular perr-.tling pro-
prim car it prosecute a violation of
Federal 1vv\ Thus even if a nonauth-
orized State takes action under State
la* against a person who .s responsi-
b'e for a discharge which also consti-
tutes a violation of the Federal permit.
the State action cannot be addressed
to the Federal violation, for the State
has no authority over the Federal
permit limitation or condition in ques-
tion. In such case, the authority to
seek civil penalties for violation of tne
Federal law under subsections 309(d)
or 311(b) or section 505 would be unaf-
fected by the State action, notwith-
standing paragraph 309(g)(6)
In addition, the limitation of
309(g><8) applies only where a State is
proceeding under a State taw that Is
comparable to section 309(g) For ex-
ample. in order to be comparable, a
State law must provide for a right to a
hearing and for public notice and par-
ticipation procedures similar to those
set forth in section 309(g); it must in-
clude analogous penalty assessment
factors and judicial review standards:
and it must include prov tsions that are
analogous to the other elements of
section 309(g)
Finally section 309 provides
that violations with respect to which a
Federal or State administrative penal-
tv action is being diligently prosecuted
or previously concluded 'shall not be
the subject of civil penalty actions
under sections 309(d), 31 Kb) or 505
This language is not intended to lead
to the disruption of anv Federal judi-
O LONSfcST DECHEES
Tula bill rf-j .-istha1 in connection
with citi/ei su ts uouf.cation of pro-
posed coasen: ilerrees he provided to
the Attorney General and to the Ad-
ministrator.
It was onijiially proposed in the Ad-
ministration's bill 2 vears ago. The Ad*
ministration bill contained a clause
which specifically disclaimed that the
United States could be bound by Judg-
ments in cases to which it is not a
party
That provision merely restated cur-
rent law and thus we decided that it is
not necessary to include it in this bill.
The amendment is not intended to
change existing la* that the United
States is not bound, since that rule of
law is necessary to protect the public
against abusive, collusive, or inad-
equate settlements, and to maintain
the ability of the Government to set
its own enforcement priorities.
Compliance dates for industries for
which effluent guidelines have not
been promulgated have been extended
to March of 1989
We have had a big problem over
when you have to come into compli-
ance because of the guidelines. EPA
has not been quick enough to come
out and tell industry A or industry F
what they can and cannot do So we
have reluctantly given them an exten-
sion on these guidelines. The latest is
March 1989. or 3 years from the date
of promulgation of the guidelines by
EPA. whichever is sooner EPA Is
strongly encouraged to get these
guidelines finalized so industry can
comply with the discharge require-
ments as soon as possible Until such
guidelines are promulgated, the
Agency is expected to proceed under
its current policy with respect to non-
compliance dischargers to meet the
deadline
A provision establishing a progres-
sive stormwater control program is in-
cluded in the bilL Although the law
now requires EPA to establish dis-
charge requirements for the storm-
water point sources. EPA has been
unable to develop a final permit pro-
gram for these sources This legisla-
tion sets up a program whereby EPA
must issue permits for storm water
point source discharges in municipali-
ties with population of over a quarter
million within 4 yean of enactment.
Within 5 yean of enactment, per-
mits for stormwater point sources dis-
charges are required in cities with pop-
ulations between 100 000 and 250.000.
These discharge requirements are to
contain control technology or other
techniques to control these discharges
and should conform to water quality
requirements Requirements for storm
v ater discharges associated with in-
dustrial acti.ities are unaffected by
this provision The Age b
unable to move forward^ , a .
gram, because the current la* d'rt
KIVP enough guidance to the Ate
Thn provision provides such gxj.c""
and I e»,wct EPA to move rap'iS
impkii'MU th-s control program
Tr>e legislation also contain
Senile provision relating to the Cf«
go tunnel and reservoir project TH
something that has been aro^^d
many many years This provision c
allows funding for this project u-
section 201(gK!> without regard to
limitation contained in the prov is.a
the Administrator determines t
such projects meets the cost-effect
requirements of section 217 and 2l£
the act without any redesign or rec
struction. The Governor of Illir
must demonstrate to the satisfact
of the Administrator the water qua
benefits of the project. This prov is
does not apply to the cost-sharing
quirements under the other applies
provisions of the bill
The legislation modifies EPA's c
rent policy with respect to antiba
sliding on best practical Judgment a
water quality-based permits 1
thrust of this provision is to genera
prohibit affected permittees fr
weakening their discharge requi
ments as a result of subsequently p
mulgated guidelines. O t<
narrow circumstances slid
be permitted, and in no eve n it
permitted even if. after s dischan
leaves a stream, there is an unpro
ment in water quality, unless the ar
degradation policy test is met Tt
test states that water quality may
lowered only if widespread adve
social and economic consequences c
be demonstrated through a full int<.
governmental rev lew process.
S. 1 also embodies many of the cor
struction grants and revolving loa
fund proposals contained in the bi
first passed by the Senate in 1985 I
other words, this bill was passed as
mentioned earlier, in 1985, we went
conference with the House, but
kept many of the provisions dealt
with the construction grants and t
revolving loan.
The bill extends the current S2.4 t
lion annual authorization for title
construction grants for 3 years
fiscal yean 1989 and 1990, the anm.
authorization for title II would be i
duced to *1 2 billion. After that, the
Is no more, no further authonzatio
would be made for title n after fisc
year 1990, and the money is shift
over into the revolving grants pz
gram.
States would be provided with suf
cient lead time to begin setting '
State revolving loan pro T
bill encourages the cree.lt the
self-sustaining financing les
the earliest opportunity by proudi
each State with an option of come
ing title II construction grants fun
into capitalization grants for SRF s.
-------
III.B.6,
"Guidance on "Claim-Splitting" in Enforcement Actions under the Clean Water
Act", distributed August 28, 1987.
-------
-------
GUIDANCE OS "CLAri-SPLITTtVG" IN ENFORCEMENT
ACT.'CS? ' M>-.3 THE CLi^S ^ATER
/ f
-------
5
-.
•**•-*.
. 5
ve
* -»: •>->." •••»;• '1 »• -J - r -t -
"w-e in.-- -->--- -^»rr . -ar *--»^ *••.• *;•_- ./ -j - * s— •
*••:' * "»r^ • . .. "-"j." - t -•"-." i*r ••. - i" . :..»»
C '•' ' 5:L"^-' •-•>"-• ' - . J*.."^. »--.t. + , " \ i"J'
it i.fiu:" f« -i«.-«; : j- 1 1". -. Ttri" . - ••-j.-. i.* - »-*.
• .."•;* "e 3,wT '5 j-*" r.*. •., -r^ ; : r ^ j~. ~r .5. ^ : ~-t
i".3t::n. . ».•.' resc*?:t ." wr . ;- --e - .•.- . j'.ra-. T. . * 3s
a"1 .5 : — ^e-"t.. rr^sec-t ."»; j" i:-. r ^" ,«r *'.> s^ne-
As a matter ot policy, EPA intencis not to urocse an administrate «<
penalty toe any violation for wnic" a "--ciiciaL ?«na.r:/ -as alreacv
assessed.
a C.A violator is resocnsisie tor -ultipie /l
-nay simultaneously purs-e acTuristrative penalties oc JD to
5125,000 for sane violations, anc ;u
-------
»' - - -----., -I?- -J :" .--s-e -. . "a.:..-" .is :, ..
"•s'-j.i ..,.-*-, ~ -:'.*"*•- = ..--.ta-'r'xs aj-u-.strat . v a-o ,ci;ia*.
. ;.atcr --r -.:f-»r-?~t oast ..^at.^s.
"^-='»r, 3wCi -.a.--sc.i~z*-c COL^J
-ae or ^e-cv resources t*ac co..2
t^cis. To =-r5>- iwc s'j-u.ta^e'xs
:. .. -•r~3_^, _r :-;^-r : . T.,S -^;--: r^ec-ire jLc*i:3ci?n ^t errDrts
•:/ "Of .-^ai i' : *.e7'-"i:a: starfs, anc roula e^«n result 11
uneq«aj, or i icons *s tent results. In adcition, tie orosecution
: tw: s .-^-.a-exs c.-.« ce-aitv act. 3ns kr uSferent rorjms, one
a'i-a-istrat..1" anu one *>joic.ai., nignt oc^Kie tne violator witn an
ar~jnent for staving :r«2 ^r t-e ;trer ^ fe e^forceTe^t proceedings
t; -rev-s-- .-cc"S.5"-rsrCr , i-^s •xwrt.a.l.^ je laving res^tucion of
sort ~t •-«
c;r t-e aocv** reasons, Er^ 5*"xli ":e"eraLi/ avovo initiating
%^rai.-. ;r •s.-.-ita-*? xis a«:-'i~i3tr3tit« and ;-ciciai civil oenaltv
rroce«r::ni3S. r~.3 7uiiarce :oes not acolv to oaraiiel civil
'adTur,:3trat:.e 3r *-:ic.ai) a^d rnninal acticrs, ^r.icn -nav sone-
ioes «=• jocr^r^jte, ncr -oes .t aoolv to sg.r_.ai civil r>enalt/ acti*ns,
-r.i:''^r ad-v.-isf.r2t ..e :r ;«diz.al., kn arv 3r-er 3r crwoi nation, if t"««*
*•** :.... ^»>"alt< »c* . ~ jccres-5'js "jr.., . i~lat. rs ^ricn occurred ^r'-rr
_..:. o^^a-t, act .on.
I- aO:iti-r, E?*i Tiusi: *>? lart.cu.arlv ;arer-i .n rraminc »ts
">e^ait. ;r-ers anc 'ucicial ccmolaints tc, .dentif/ as oreciselv as
•>;s5iote tre v.olatiors -whicn tne \gercv intends t-e -j^rcrcenent
c^ accress so as to avoid possible preerotion of future clains for civ.l
penalties.
t EP^ may, of course, pursue judicial enforcanent under
Section 309(b) of an administrative order for conoliance issued pursuant
to Section 309{a). And EPA mav at anv tune initiate adTunistrative or
judicial civil penalty actions for t~e same violations that were the
oasis for an earlier (or moeed simultaneous) Section 309(a) adnuni5crat.v<=
order for compliance.
III. Simultaneous Administrative Penalty Proceedings
notMng in tne Clear *ater ^ct or ^nencrrents pronibits
is aoninistrative civil cenalt/ actions for Different past
eolations oy t^e 5a,-ne violator, EP^ will oe 3n t-e strongest leqa^.
^rourd ov avoiding simultaneous ac.ru, ^istrative oeralt/ actions aqainst
a s.ncie violator. Shcu-^ E?^ initiate separate acnu-.istrative penalt/
• \
J
-------
ie-s ^*:<:.-'' '.." : 13. :-• rases .-
.:.3-.:rs i. —•* .:.atcr .: 3J::.:.e
arra". a :.-.. re^a.t. .- -*xc-i-
rxrets: «.f. i s. '<;.•* ^.-»_,2. ;.•... se'^a.t/ -.»?n .r.cn "35 in :./i
•?-?.*, -jc. 7". 3 ii-r-.i.' - p. -.. a ,.*s i-e .-ar^ ^r -.r.'J-'.vc.
.t i-e Ki-.-.a-rji..' -*--3.*. ..ic •. -.j_- jpt.-!:.f:, s-p. w LI •5.*nfc*'
^-* +*^* f *• t^f r~j ** ^ ^^ ~* "**' •* *» ^^^ *r"* "*^ j»** — ^ ^fca"*^f*P **^*^^*c »rt r^i» f
c * f«i»*v»* •- / « JwO*r ^ v * ^*- j**^Jv*^'i - ^. - ^«?s.r3C. ..*./ :r s^jt-r."*; ."'--ct..* rei.ef -rdec
e.t..- 3C?'C' aoa.-si ~cst 5-er.xs reoet.t..^ /;~.3t.:r3 will otten t.p
-e ca.a-ce swa/ m~ - ;• -r.. 5 j-x^'.a-wo-s, t^-t •?' e- 5er;a. icru^.
5* ^ < ir^^fci^ ^^ ^^ »* »^ r1 * i^* *1^ *** * ^^
t fc. **»-*. , U _ • * * J ».««>««« J* .
»a*» **-*** *, -»-» *:- »*• »**" ""1^-ft-i-*! r -» *•*
.»!•*« «TT^ to* -*J • * * y *2«* 1 - *- - * * ^ fc. ^ t Ja *
-------
III.B.7.
"Guidance on Retroactive Application of New Penalty Authorities under the
Clean Water Act", distributed August 28, 1987.
-------
-------
GUIDANCE ON "RETROACTIVE" APPLICABILITY OF
PE'.ALTY V.ThrRITIES uSDER THE CLEAN WATER ACT
-------
* * I"treduction
luoilit/, increased the -ax.-.- c./il and criminal penalties
assessment of civil penalties. TKis *uiJa-»ce aldresses *-irn
•f t^ese -e«rf senaltv ?rovis:**"s ~av **e aa^lie11 t** violations
j":r~ 'jc-rrei or.or *? ~-?~r-ar.' 4, .'S", t"-? ^'f-srt.-e late ::
The 199" aren^-e-ts to sertion 309(c) of cue ^ct create
t**ree 'jisci-ct rl^sses of :r.-nal /lolac-on:
1.) Segj -«>nt Viclatio^s -3f soecif'.e'l s*rt:ons of the
or **f ary cond.-.cn -;r Ii-itatir* I-D Lere^t nq an/ -5f tie
•»"ur<» rated stat-f:r/ Tert.o~3 ; r a k«?3E5 Tec-'it or in a 404
oer-it: ^r of a"/ re'ZJire-e-t i-o^sei .n an approvel oretre
*vr^'*''^<*, ir sv ."tri'J- •"*.""* .nts 3 se«<»?r or 3OTW of a pollutant
w.i:1*. causes < 3CTVv N?Cr5 cer-.t . .olat.sn, or wnicn tne :ntro-
or oroperty iara^e 'See Section 30^ :
2.1 K n ow i n q Viola t_i o_n^ -jf twe sare statutor/ a«.1 per"»i.
provisi3"S 'See Section 309'c)'2)), and
3.) Knowing Endarger^ent Violations involv."1; a < now ing
violation of any of t.ne enunerated Drovisions and concurrent
knowledge that the violator tnereoy places another person i*
imminent danger of death or serious bodily imury. (See Section
309(c) ( 3) ).
The penalties for the negligent violations regain "... not
less than 52,500 nor more tKan 525,000 per day of violatio- or
by imprisonment for not more than 1 year, or by both." Second
and subsequent convictions are punishable oy fines "...of no
more t -an $50,000 per day of violation, or by imprisonment of
not more than 2 years, or by both." The increased penalties for
knowing violations are fines of "...not less than 55,000 nor **ore
than 550,000 per day of violation, or by irprisonment for not more
tha*» 3 years, or by bocn." Second and subsequent convictions may
-------
- 2 -
result in fines"... of not more than 5100,000 oer day of viola-
tion, or by imprisonment of not more than 6 years, or by both."
The new penalties for knowing en-lance r-nent violations are up to
15 years irnrison^ent or a fine of not more than 5250,000, or
"^t* for . " 4. i /id-ia Is ; anl a f.*>e of net -ere tua- Si, 000, 000
for or^a^.zat.ons. The fine anj ter- of i-or iscrre^t is iouMed
for secern a"^ s jose^j^nt ccnvi rtiors under cms orovision.
TKe "ex p_o_st facto" clause of tie Constitution precludes
retroactive application of new criminal provisions, either by
ounisMnc as criminal ttat which was not exoresslv lefinej 3<5
crin-.al when ccrritted, or oy increasing retroactively a cririnal
fine. Thus, the newlv created criminal violations such as those
defined in Section 309(c)(3) (knowing endangerment violations),
•nay not oe applied to activities which occurred prior to
February 4, ISB"*, nor can a sentencina court apply increased
penalties for any convictions pertaininq to pre-February 4, 1937
conduct. However, an/ behavior which was violative of the criminal
provision of the Act as it -existed prior to February 4, 1987 may
still he prospcjte^ pursuant to the provision as it then existed.
III. Civil Judicial Penalty Provisions Generally Not to Be
Retroactively Applied
The Suorene Tourt has ruled that the "ex post facto" clause
of the Fifth Arendrent to the Constitution applies only to legis-
lation inposino cririnal fines or penal sanctions. Thus the
retroactive application of civil penalties does not necessarily
violate the "ex post factg" clause, "owever the "due process"
clause of the Fifth Amendment to the Constitution does appl/ and
may impose restrictions on the retroactive application of the
increased maximum civil penalties. Therefore, in order to mini-
mize the raising of Constitutional issues and the consequent
expenditure of Agency legal resources, and in liqht of the strong
likelihood that the old maximum civil penalty liability of "...
510,000 per day of such violation" will, in most cases, still
prove adequate, it is the Agency's policy generally not to seek
the increased maximum civil penalty amounts for violations occur-
ring prior to February 4, 1987, the effective date of the anendnents
Exceptions may be appropriate on a case by case basis if it can
be shown, for example, that the retroactive application of the
civil penalty amount is necessary in order to recover the economic
benefit which accrued to the violator by virtue of his violations.
-------
^.ir.c-c:" t~e "i-e ~r~~e«3" :l»_se -o^l* rreveT t*e retro-
active assess-e"t cr c..*i. ~e-3lt.es .* cases ^ere "o aufor
-c -s-.tain pe^alt.es srev; ^ jsl / existe-i, it is tNs ^cency's ,
session tnat -one cf t"e a-e-'Oe-ts tc Seiti^r 309(ji ofer
c.ui" fe i"?r»is*1 -ax:-'-- re«alt' a-o-~t create *•*« ci"il c-^-alt.
..ac.lit.es. I-steil t~e •s~e-tJ-*-t5 t: Sertit- 3" •* 4 -ere'l.
rlar.f --•»• --s*. -»x.»•.""• -:.:! re-al-/ a-t-^r.t.es a-.i
1: as; l:t:es. 3aec . f i :a 1'./, tK.e a-e-j-e-'ts clarif/ fat /i^Iat.o"
•;f an/ recj ire^e'-t :- a-, aanrovei rretreat-e^t pr?cra~ :s su5'ect
ta civil penalties --.ier Sect.3"1 309 -• i . ^Lso th.e are-ire^ts
clarif/ t.^at civil c-enalty liability ^-rfer Sectic" 309'j1 attache-
"... ner 'la/ for eac1* /iclati:"."
IV. M^.i.^.1 sc rat ij.e °e"a 1 t^ies °etr^act ive J.Q *o C1J ?era 1 tv ^^*__i_^
i" 11-t ~;r. i--- -1--- • a t"i* r-»t r "ilit/ 3f 510,000 per -"a/
of such violation, t*"ere .s nj proble-^ w:tn retroactive a^pl.ra
of tue «ew Section 339'-;) nr-scel-ires. iiven EPA's i^ternret -jn
sf eacn of tKe sli7"tl/ iifferently «/orleJ 1 .-"i tat ion-3 as -e ^
•*r->r -iav per violation", • t*e retrcact. e apolicatnn of the new
^ection 309'c.) -naxi-a* peralt/ i.aoilities arc-ablv ^:11 ->*ver
i*xcee^ the Section 309M' -axnun ^j-^ic.al :ivil nenalty l.nil.t,
ciat applied prior to February 4, 193".
For fjrtner information or clarification of this guidance,
contact Jed 2. Callen, Esq. at FTS 597-9882 or Gary Hess of OECM
at FTS 4''5-?193.
* See "Guidance on Effect of Clean Water Act Amendment Civil
Penalty Assessment Language", for a full discussion of EPA's
interpretation of the various civil penalty liability provisions.
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III.B.8,
"Guidance on Effect of Clean Water Amendment Civil Penalty Assessment
Language", distributed August 28, 1987.
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-------
GL'ICV.CE C*l EFFECT OF CLEAN WATER ACT
A-EN'DMEN'T CIVTl PENALTY ASSESSMENT LANGUAGE
Calculations Per Day
and /or Per Violations
-------
GUIDANCE CS EFFECT OF CLtV. *AT£a ACT
AMENDMENT CIVIL PENALTY ASSESSMENT LANGL'AG
-- Aporopriate Calculations
a-i cr ?«T .:.at* -
= -—ar.
•? - a 1 - . -
T i2',
f 325, ;:
peraticnal -pset" d"i i-/ ,-ff-;t k -. -d
.aiilit/ ralc-late-J as r.--* 3>-it-t:r/ ~
e - a . t / : r 5 . , , 3
.25, 300.
jn ct/il penalty
i-'oj-1:, see a
-i'"; foe
•-, »
"
v*at»r
THe na-ner 'n w^ich penalty ^laoility .3 s'.Le'je'i in ;L/il
or ac'-ninistrative conplaints is affected by nterpc^tion of this
statutory language, as is the Agency's a3s«s s-ne^.t 3f penalties.
With respect to civil or adnunistrati'-e co'np'.ai-ts or proposed
orders, SPA will operate from t^e stro-i;-»st ^-sition *hen such
to each applicable stat^tor/ -ax.1"-"1 i-?n3lt. -----t.
In considering t"-? *.-2-»r ?f iolat.:"3 : "t*.* -..-7 to
penalties in judicial *r * i^.^istrat, /e pro:-- :. 173, Aj-5"c/
personnel si^ouLi arcoa'-t f:r t--» tttil -j-cer c*
of 71*2" -ater ^Jt r-'-C'j .re-e-ts, --sr-.t .^i.ti'"" or
t ^ t :r-r - a :a/, * 3 « » . . ^i • ' • " " ~- -: s / 5
* •"~'**"* /"^-'""'*
-j-- P'?""'?^.— -5 . - "~.5 '.."S™:- i
-a*. *.te t".s 2-"."t - t? r-:_
t . -e coolant 3"J Ar3::-3ei ;n-5r
caps on 'total penalty
fe
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Tne Provision3
*-
The following chart sets out the evolution of tne various
penalty provisions in tne process of amending the Clean "water
Act.
JUDICIAL
MAX. 325,000
MAX. 5125,000
Before U37
$10,000 per da/ of
such violation
Sen. Bill,
51123
$25,000 per day for
eacn violation
I
510,000 per day for
each violation
. I
. Rep. 50 525,000 per /iolat*on
I
! 510,000 per day for
j each violation of a
I Clean Water Act
requirement
, House 3ill, i 525,000 per day of
HR 3 I such violation
i
510,000 per day of
violation
-. Pep. 139 . 525,000 per a
I 510,000 per day of
, /iolation
1 1936 Conf.
, Bill/1987
| Amendments
i
1
525,000 per day for
each violation
510,000 per
violation
510,000 per day for
each day during whicH
the violation
continues
At issue *s the question whether EPA may assess a number of
violations in a single day, or only a single violation continuing
for several days.
Discussion of Interpretation
In amending the enforcement provisions of the Clean Water
Act, Congress -generally sougit to expand tne Agency's enforcement
authorities. »• Additio^all/, tne legislative iistory reflects
I. 133 Cong. Rec. 5^36
14, 1337) ' state-lent of
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no intent to limit the Agency's past practice, either in pleading
tie statutory maximum or in using the penalty policy. In fac
Congress ratified the Agency's penalty policy and practices by
:ncor2oratiTT its Jias.: cn-ciples n tie Art. -?ee §313 r*
•» . - i --- Is " " * 3 ' i - • 3 ^ : . : . t ? : j..*t T * t . -•» •-...:?.. e 3
." . ~ --„-.-• "• •• 3 1 * ' - • . - 1 3 .
Twere is m ioubt t'.it t-.ere .03 -o cKan;e, -»x;->Tt as t5
"ol.ir c*? :!.•";, -.o civ:! ;jji:ial penalties. 2n its race, tr.e
:isx, , 70 r -la/ * >- ^5:- . :;tat.-:-. F .finer-ore , Jonjross sa% -;
.».M-!/ —a1: "3-rr:.:-1. 2)9 i-1 4i-J -:" tr.e Act ire jrendeit ... •: ^
rlarif/ t~a*. each disti-:t violation is subject to a separate
•Jflil/ nenal-.y asses^'^",1: -:f Jp to 525,000..." H.R. .Rep. No.
1004, 99*.h Cong., 2d j-JS-5., 132 Cong. Rec. H10569 (Oct. 15,
1936 .
~r a ?-. - . s- r a * . • •*•»•* a 11 i»?s , t->e 7-ost.."! .1 whether a
• ^*.r. t.v .-1 .•: r--'.-* 3'.. -JP ao?:.-?3. Jlass t penalties are
•>;>-is>>1 "-or ."- lat >•""". "onress >xolintly states tnat
."f "- :^--?-.t .»:•.-• > 523,30-, r^oar i I^ss of the pu~&er ^£
.iSlat ^ns or r^-s-^r " f ^avs of violacion. rf.3. Sep. No. 1004,
99f "•;'";., 2 of violat. " ^r«? to He ro" • i^erol n "li.93 I
•T t ••^••";J""?"it, - "•" • "»- "i l.i .-."/. 7"-." 'li-JT II
for each lay c!jr.T7 w-irh tk* viol it. n cintir-^s, ihojli
In conclusion, the Agency's policy witn respect to
calculating counts (i.e. violations and days) of civil penalty
liability has been unchanged by the Clean Water Act amendments,
and may be extended in application to the new administrative
penalty provisions. For further information, please contact
Patricia Mott, attorney in OECM/Water (PTS 475-932r .
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III.B.9,
"Addendum to the Clean Water Act civil Penalty Policy for Administrative
Penalties", distributed August 28, 1987.
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ADDENDUM TO THE CLEAN MATER ACT
CIVIL PENALTY POLICY FOR
ADMINISTRATIVE PENALTIES
-------
ADDENDUM TO THE CLEAN WATER ACT
CIVIL PENALTY POLICY FOR \ /.-~
ADMINISTRATIVE PENALTIES ' J
\
I. Purpose
The purpose of this Addendum is to provide guidance on tne
calculation of acceptable settlement amounts for EPA claims for
administrative penalties authorized by Sectio'n 314 of the 1987
amendments to the Clean Water Act. Under that provision, codified
as Section 309(g) of the amended Clean Water Act, the Administrator
may assess a Class I civil penalty of up to $10,000 "per violation"
to a maximum of $25,000 and a Class II civil penalty of "$10,000
per day for each day during which the violation continues," to a
maximum of $125,000.
At this time, this Addendum applies only to the calculation
of administrative penalties and does not affect the calculation
of penalties for judicial actions. Neither does it apply to the
calculation of penalties for violations relating to the discharge
of dredge or fill materials regulated under Section 404 of the
Clean Water Act. Guidance for calculation of penalties under
Section 404 will be issued separately. At a later date, all
provisions of the Clean Water Act Civil Penalty Policy will be
re-evaluated to determine whether the methodology should be
made identical for both administrative penalties and civil
judicial actions.
The calculated penalty figure represents a reasonable and
defensible penalty which the Agency will agree to accept in
settlement of its administrative penalty action against a
violating permittee. The complaint/proposed order should
include the penalty amount which "the Administrator proposes
to assess" as compared to the "settlement" amount calculated
under this Policy; thus, the amount which the Administrator
proposes to assess or seeks in administrative litigation by
no means needs to be identical to the amount calculated under
this Addendum as acceptable for settlement.
II. Penalty Calculation Methodology
As for judicial penalties, the initial calculation should be
an estimate of the statutory maximum penalty in order to determine
the potential maximum penalty liability of the defendant. The
penalty which the government seeks in settlement may not exceed
this statutory maximum amount. For administrative penalties, in
addition to being governed by per day/per violation maxima, the
government may not seek more than $25,000 in penalties through
a Class I action nor more than $125,000 through a Class II
adminstrative action.
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The adminstrative penalty calculation involves tne same £our
consecutive steps as for civil judicial actions:
1) -calculate the "Economic Benefit" of noncompliance;
2) calculate monthly and total "Gravity Components";
3) calculate the "Adjustment Factors";
4) calculate the total penalty.
(1) Economic Benefit. The economic benefit component typically
should be calculated by using the EPA computer program —
"BEN". This program, which produces an estimate of the
economic benefit of delayed compliance, includes, among
other costs, avoided operating and maintenance expenses
and thus should be usable in nearly all cases. If for
some reason, the violations at issue are of such a unique
nature that their associated economic benefit is not
calculable through BEN, then the penalty calculation
should include any significant economic benefit calculated
through a reasonable methodology.
(2) Gravity Component. The gravity components to be used in
calculating administrative penalties differ slightly from
the components used for civil judicial penalties, althougn
the general methodology is the same. The following five
gravity weighting factors should be considered for each
month during which there was one or more violations and
should be assigned values according to the attached
methodology:
"A" — Significance of Violation. The definition is
unchanged from that for civil judicial penalties.
Note that this factor includes discharge violations
by indirect dischargers.
"B" — Health and Environmental Harm. The value for impact
on the aquatic environment has been changed from
1-10 to 0-10 for administrative penalties to reflect
the fact that some violations addressed tnrough
administrative penalties are of a type which may have
little or no impact on the aquatic environment. This
factor also explicitly includes impact on a POTW oy
a violating industrial user within the 0-10 range.
"C* — Number of Violations. This factor is unchanged from
that to be applied for civil judicial penalties.
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'Q» -_ Duration of Noncompliance. This factor is unchan
from that to be applied for civil judicial actions.
•E" — Significance of Non-effluent Limit Violations. This
factor is presently not applied for civil judicial
penalties but should be included in the gravity
calculation for administrative penalties. It
has a value of 0-10 and should reflect the degree
of deviation from the requirement for the most
significant non-effluent limitation violation
each month. Violations covered by this category
might include failure to report, late reporting,
schedule violations, laboratory analyses deficiencies,
unauthorized discharges, operation and maintenance
deficiencies, sludge handling violations and other
non-effluent violations.
(3) Adjustment Factors. The same three adjustment factors
will be used for administrative penalty calculations as
for civil judicial penalties; however, additional language
is added to make clear that the statutory factors are
included for consideration. The consideration of "history
of recalcitrance" may only result in an increased penalty.
The "ability to pay* and "litigation considerations" may
be applied to decrease the penalty.
(A) History of recalcitrance
In addition to the reasons identified for application
of the recalcitrance factor in the main text of the
CWA Civil Penalty Policy, the compliance history of
the respondent should be considered in examining the
history of recalcitrance. Where the respondent has a
history of repeat violations or a series of recent
violations which have not been satisfactorily corrected,
a factor for recalcitrance should be applied in deter-
mining the penalty amount. In evaluating the history
of compliance, it is appropriate to consider compliance
at other facilities owned or operated by the violator
as well as the violator's response in correcting the
problems.
In assessing equitable considerations under History
of Recalcitrance, the degree of culpability of the
violator for the violation should be considered.
Factors which might be examined include the degree
of control the violator had over the events leading
to the violation, whether the violation could have
reasonably been anticipated, and whether the violator
took reasonable precautions to avoid the violation.
Where facts demonstrate the violation was largely
within the control of the violator, increasing tne
penalty may be justified.
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-4-
(BL Ability to Pay
There Is no change in this ad]ustment factor from
that applied for civil judicial penalties.
(C) Liti gation Considerations
There LS no change in tnis ad]ustment factor from
that applied for civil judicial penalties.
Ill- Intent of Policy
The policies and procedures set out in this document are
intended for the guidance of government personnel. They are
not intended, and cannot be relied upon, to create any rights,
substantive or procedural, enforceable by any party in litigation
with the United States. The Agency reserves the right to act
at variance with these policies and procedures and to change
them at any time without public notice.
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Addendum to Clean Water Act Penalty Policy; Calculation Methodology *'
SETTLEMENT PENALTY1' 2 • (ECONOMIC BENEFIT) + (GRAVITY COMPONENT)
+ (ADJUSTMENTS)
Step Is Calculate the Statutory Maximum Penalty
Step 2: Calculate the Economic Benefit Using "BEN" 3, 4
Step 3: Calculate the Total Gravity Component 5
- Monthly Gravity Component • ($1,000) x U+A+B+C+D+E)
- Total = Sum of Monthly Gravity Components
GRAVITY CRITERIA ADDITIVE FACTORS
A. Significance of Effluent Violation6
I/
% Exceedence
Monthly Avq.
0-20
21 - 40
41 - 100
101 - 300
301 - >
% Exceedence
7- Day Avg.
0-30
31 - 60
61 - 150
151 - 450
451 - >
% Exceedence
Daily Max.
0-50
51 - 100
101 - 200
201 - 600
601 - >
Conventio
Toxic Non-Toxi
0-3 0-2
1-4 1-3
3-7 2-5
5-15 3-6
10-20 5-15
B. Harm to Health, Environment or Treatment Plant7
(i) Impact on Human Health; or 10 - Stat. Max
(ii) Impact on Aquatic Environment; or 0-10
(111) Impact of IU on POTW (Pretreatment Violations) 0-10
C. Number of Violations8 0-5
0. Duration of Noncorapliance9 0-5
E. Significance of
Non-Effluent Limit Violations^ 0-10
Step 4: Include Adjustment Factors
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-2-
A. History of Recalcitrance*1 (Addition)
- Penalty may be increased by up to 150 percent
" based upon the past and present recalcitrance of
the defendant and for otner matters as justice may
require.
B. Ability to Pay (Subtraction)
- Penalty may be adjusted downward to represent the
defendant's ability to pay.
C. Litigation Considerations (Suotraction)12
- Penalty may be adjusted downward to reflect the maximum
amount which the court might assess if the case proceeds
to trial.
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ADMINISTRATIVE PENALTY CALCULATION METHODOLOGY: FOOTNOTES
\
1. In general, the Settlement Penalty amount shall be at least
the Economic Benefit of Noncompliance plus a gravity component.
2. The maximum Judicial Settlement Penalty shall not exceed the
amount provided by Section 309(d>, $25,000 per day for each
violation. The maximum Administrative Settlement Penalty
shall not exceed §10,000 "per violation" or $25,000 for
Class I violations and $10,000 "per violation for each day
^during which the violations continues* or $125,000 for Class II
violations. Note also the statutory requirement that "a Single
Operational Upset which leads to simultaneous violations of
more than one pollutant parameter shall be treated as a single
violation."
3. Calculate all economic benefits using BEN, if possible.
There is no minimum amount triggering the use of BEN. If BEN
cannot be used, estimate economic benefit using best available
information.
4. Economic benefit is to be calculated as the estimated savings
accrued to the facility; i.e., it is to be based upon the total
amount which should have been spent by the facility. (All capital
and expense costs, direct and indirect, are to be considered.
This includes operation and maintenance costs.) ,
5. The Total Gravity Component equals the sum of each Monthly Gravity
Component for a month in which a violation has occurred.
6. The Significance of Violation is assigned a factor based on
the percent by which the pollutant exceeds the monthly or 7-day
average or daily maximum permit limitation and whether the
pollutant is classified as toxic, non-toxic or conventional. The
Significance of Violation factor is used for effluent limit
violations only.
7. Where evidence of actual or potential harm to human health exists,
a factor from "10" to a value which results in the statutory
maximum penalty should be assessed. Where the identified impact
or potential impact relates only to the aquatic environment, a
factor from "0* to "10" should be used. Similarly, where the
impact or potential impact is on a POTW by an Industrial User not,
meeting pretreatment requirements, a factor of "0" to "10" should
be used.
8. The Region has the flexibility to assign a high penalty factor
where an excessive number of violations occur in any month
(effluent limit, reporting, schedule, unauthorized discharge,
bypass, etc.).
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i
-2-
9. The Duration of Noncompliance factor allows the Region to increase
the monthly gravity component for continuing violations of the
same pararaeter(s) or requirement(s). Generally, a "long-cerm"
violation is one which continues for three or more consecutive
months.
10. The Significance of Non-Effluent Violation factor covers the
effects from all non-effluent violations—other than the inter-
ference effects on a POTW from an IU's pretreatment violations
(see B iii)—such as reporting (nonsubmittal, incorrect and
late Discharge Monitoring Reports), laboratory analyses deficiencie
(includes DMR QA), unauthorized discharges, operation and
maintenance deficiencies, sludge handling and schedule violations.
11. A factor ranging from "0" (good compliance record, cooperation
in remedying the violation, no culpability) to 150 percent of
the total of the Economic Benefit and Gravity Component may be
added based upon the history of recalcitrance exhibited by the
violator.
12. The penalty should be reduced by any amount which defendant
paid as a penalty to a State or local agency on the same
violations pursuant to State law.
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CWA Penalty Summary worksheet
Name and Location
of Facility ' ""
Date of calculation _._,_
(1) No. of Violations = __
x $10,000 » stat. max. = $_
(2) Economic Benefit ("BEN")
(period covered/
months) »
(3) Total of Monthly Gravity
Components $
(4) Benefit + Gravity TOTAL
(5) Recalcitrance Factor %
(0-150%) x Total (Line 4) » $
(6) Preliminary TOTAL (Line 4 + Line 5)
ADJUSTMENTS
(7) Litigation Considerations
(Amount of reduction)
(8) Ability to Pay
(Amount of reduction)
(9) SETTLEMENT PENALTY AMOUNT
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III.B.10,
"Guidance on Notice to Public and Conmenters in Clean Water Act Class II
Administrative Penalty Proceedings", distributed August 28, 1987.
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GUIDANCE ON NOTICE TO PUBLIC AND COMMENTERS
IN CLEAN WATER ACT CLASS II ADMINISTRATIVE PENALTY PROCEEDINGS
I- Statutory Requirements of Notice to Public ar.d Commenters
The Clea^ Water Act requires that, before issuing an
order assessirg a Class I or II peralty, the Administrator
shall provide public notice of the proposed issuance of the
order. Section 309(g)(4)(A). Persons who comment on a
proposed assessment nust be given notice of any hearing held,
and notice of the issuance of the order that actually assesses
the penalty. Section 3C9(g)(4)(B). EPA's Guidance on Class I
Clean Water Act Administrative Penalty Procedures ("Class I
Guidance") sets forth procedures by which EPA provides public
notice in Class I proceedings. As set forth below, EPA should
provide public notice in Class II proceedings in a manner
similar to the procedures set forth in the Class I Guidance.
II. Public Notice of twe Proposed Issuance of an Order
EPA should provide public notice of the proposed issuance
of an order assessing a Class II penalty in the form and
manner set forth in §126.102(b) of the Class I Guidance,
except that the notice should refer to the comment period set
forth in 40 CFR 22.28(d), and should not refer to the comment
period set forth in §126.102(b)(1) of the Class I Guidance.
III. Providing Cs~Te^.ters with Notice of Hearing
As set forth in §126.104(e) of the class I Guidance, the
Presiding Officer should serve notices of hearing on each
person who commented on the proposed Class II assessment.
IV. Providing Commenters with Notice of Order Assessing
Penalty
As set forth in §126.102(e) and §126.111 of the Class I
Guidance, the Hearing Clerk should serve a copy of the final
order on each person who commented on the proposed Class II
assessment.
For further information regarding the guidance, contact
Gary Hess, OECM, at FTS 475-8183.
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III. ADMINISTRATIVE ENFORCEMENT
593
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"Secondly, the Conferees agreed that a
State may attach to any Federally issued
license or permit such conditions as may be
necessary to assure compliance with water
cuality standards in that State.1* Leg* Hist.
at 176.
The legislative history of Section 401 thus shows that Congress
intended that the certifying State be the State with jurisdic-
tion over the navigable waters at the point of discharge.
The language of Section 401 itself further supports the
same conclusion. First, Section 401(a)(l) grants certifi-
cation to the State "in which the discharge originates or
will originate." Under Section 502(12) the discharge of
the pollutant is defined as "any addition of any pollutant
to navigable waters from any point source." Thus, there
is no discharge until the pollutants enter navigable waters.
For the purposes of Section 401, at least, the discharge
thus originates at the point at which it enters the navigable
waters.4/
t
Secondly, when an interstate water pollution control
agency "has lurisdiction over the navigable waters at the
point where the discharge originates or will originate"
it, rather than any State has the certifying authority.
This is further indication that the certifying authority
derives* from jurisdiction over the navigable waters, not over
.the land where the facility is located.
Section 401{a)(3) provides further support for this con-
clusion. Pursuant to Section 401(a)(3), a certification with
respect to the construction of any facility also is binding
upon any subsequent operating licenses for such a facility,
except that the certification may be withdrawn because of
changes in four circumstances:
4/ in nis discussion of Section 401, Senator Muskie says
that the certification should come "from the State in which
the discharge occurs." (Leo. Hist, at 1388, emphasis added)
While there may be some question as to wnere a discharge
originates, there can be no question that the discharge \
occurs in navigable waters.
It may be that the Congress used the word originates
to distinguish between the State in whose waters the discharge
initially enters from a downstream State whose waters are
also affected by the discharge. See footnote 5, infra.
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(A) The construction or operation of the
facility, (B) the characteristics of the
receiving waters into which such discharge
is made, (C) the water quality standards
applicable to such waters, or (D) applicable
effluent limitations or other requirements."
A concern for the receiving waters and the criteria
applicaole to such waters is primarily a concern of the
State which has jurisdiction over the receiving waters.
A State in which the facility is located may have a variety
of concerns about the facility but does not have any direct
concern or jurisdiction over the waters affected by the
discharge._5/
Our interpretation of Section 401 is further buttressed
by a reading of Section 402 of the Act. Under this section,
permits are issued to point source dischargers. Although
permits are initially issued by EPA, the Act provides that
the permitting authority may be transferred to a State which
has an adequate program. Section 402(a)(5) provides for
a temporary transfer, while Section 402(b) provides for
a more permanent transfer. Both sections provide that
the State has the power to issue permits for all discharges
into its navigable waters:
"The Administrator shall authorize a
State, which he determines has the capa-
bility of administering a permit program
which will carry out the objective of this
Act, to issue permits for discharges into
navigable waters witnin the jurisdiction
of such State." Section 402{a)(5) (emphasis
added) .
5/ Section 401 does provide protection for any other State
whose water quality may be affected by the discharge. Section
401(a}(2). Such State may object to the issuance of a permit
and request a public hearing. The permitting agency is then
required to hold a public hearing and to "condition .such
license or permit in such manner as may be necessary to in-
sure compliance with applicable water quality requirements."
States whose waters may be affected by the issuance of
an NPDES permit by another State also have rights to assure
orotection of their water quality. See Sections 4Q2(b)(5)
and 402{d){2)(A).
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"At any time after the promulgation of
the guidelines required by subsection (h){2)
of Section 304 of this Act, the Governor of
each State desiring to administer its own
permit program for discharges into navigable
waters within its lunsdiction may submit to
the Administrator a full and complete descrip-
tion of the program it proposes to establish
and administer under State law or under an
interstate compact." Section 402(b) (emphasis
added}.
Thus, tae explicit statutory language of Section 402 autho-
rizes a State to issue permits for all discharges into
naviganle waters within its jurisdiction. 6/
In its letter requesting our opinion on this issue, the
Public Service Company of Indiana suggested that the oppo-
site answer would be preferable administratively since it would
avoid the necessity of making a factual/legal determination
in each case as to who owned tne waters at the point of dis-
charge. He recognize that in some circumstances such a deter-
mination may demand the resources of the permitting agency,
but we believe that these considerations are insufficient*to
override the clear language of the Act, its legislative history,
and its goals.
It has also been suggested that in issuing permits to
facilities located in another State, the permit granting
State may encounter difficulties in providing for inspection
and monitoring of the facility, and in the enforcement of
the permit. We do not regard these difficulties as insuper-
able, since we assume that all permits would include provisions
allowing the issuing State to monitor and inspect the facility.
In enforcing these provisions, or other provisions of a
€/ The House Report clearly states that a permitting State
does not have jurisdiction to issue permits for discharges
into navigable waters outside of State's jurisdiction:
Subsection (a)(5) further provides that the Administrator
may authorize a State, which he determines has the capability
of administering a permit program, to issue permits for the
discharges into the navigable waters within the jurisdiction
of such State (but not in the contiguous zone or the ocean).
Leg. Hist, at 813. (emphasis added).
-------
10
permit, the issuing State could bring an action in its State
courts and should be able to establish that the defendant
had sufficient contacts necessary to support the State's
long-arm jurisdiction.
The questions answered in this opinion have not pre-
viously been formally addressed by this Agency. It is our
understanding that this opinion is consistent with the
actual "real world" permitting and certifying activities
in most regions. A number of regions, however/ have evident-
ly allowed States to certify and to issue permits to facilities
located in such States which discharge into the navigable
waters of another State.
A permit issued by a State which does not have the
authority under the Clean Water Act to issue such a permit is
jurisdictionally defective, and would not therefore provide a
discharger with the protection provided by Section 402(k) of
the Act. I urge the Assistant Administrator for Enforce*
ment to take whatever steps are necessary to expedite the
re-issuing of such permits.
On the other hand, a Federal permit issued despite the
lack of certification from the proper State remains valid.
The Federal agency which issued such permit had the jurisdiction
to take such action. To the extent that the permit is incomplete
or illegal Because of lack of proper certification, any injured
party could seek judicial review of such permit under the appro-
priate provisions of Federal law. Any State which failed to as-
sert its certification rights within the prescribed statutory and
regulatory time period may be deemed to have waived such rights
pursuant to Section 401(a)(l) of the Act.
ZrO
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II.A.5,
"Request for a Legal Opinion-Inclusion of Compliance Schedules in Second
Round Permits and Newly Issued Permits", dated January 19, 1979.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON O.C 20460
MEMORANDUM
1 9 7979
OFFICE OF ENFORCEMEKT
TO: Regional Enforcement Division Directors
Director, NEIC
NPDES State Directors
FROM: Deputy Assistant Administrator for Water Enforcement (EN-335)
SUBJECT* Office of General Counsel (OGC) Memorandum
Attached is a copy of a legal opinion prepared by OGC in response
to questions concerning the inclusion of compliance schedules in Second
Round and new permits. The Permits Division is including this document
in its Policy Book as 78-21-IV. If you have any questions or comments
about this opinion please contact Scott Slesing^r (EN-336), 202-755-0750.
IU'L'l*
. Miller
Attachment
cc. Regional Permits Branch Chiefs
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON O.C 20460
pi p •-> •» "-70
L » O , *, i o ( Q
orncc or
SEMCMAk COUMSCi.
MEMORANDUM
TO
FROM'
SUBJECT:
Deputy Assistant Administrator
Water Enforcement (EN-335)
rs
Associate General Counsel
Water and Solid Waste Divis
for
Request for a Legal Opinion r- Inclusion of Com-
pliance Schedules in Second Round Permits and
Newly Issued Permits — YoVr/ Memo of November 2,
1978
QUESTION
You have asked a series of questions regarding the require-
ments of best practicable control technology currently available
("BFT") and vater quality standards ("WQS") in permits issued
after July 1, 1977. Your first questions concern reissuance of
a permit to a source which had already been subject to BPT re-
quirements in an expiring permit. If BPT or WQS have become more
stringent since issuance of the first permit and additional con-
struction would be necessary for the source to meet the changed
requirements, you ask whether the permit must require the source
to meet the new BPT or WQS requirements and, if so, whether the
permit may include a schedule for achieving the new requirements.
In addition you ask, in the case of a new permit, whether the
permit may ignore BPT and WQS requirements and place the source
on a direct schedule to BAT/BCT. In both cases, you ask whether
a schedule of compliance, if allowable, may provide a time period
during which no construction is required, to allow the permit
writer and the discharger to determine what construction will be
required by BAT/BCT where those requirements cannot be clearly
determined when the permit is issued.
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ANSWER
If a source, other than a publicly-owned treatment
works, has never received an KPDES permit setting forth
any applicable BPT and WQS based effluent limitations, a
permit issued to such source must require immediate com-
pliance with the applicable requirements of BPT or WQS as
those requirements are in effect at the time the permit is
issued. If a non-POTW source has achieved its first-round
effluent control requirements, a new or reissued permit to
that source should assure that the source will continue to
achieve those effluent reductions. In addition, revised
BPT and WQS must be applied to the source. Since the Act
provides no fixed schedule for compliance with these re-
quirements, EPA should adopt a reasonable scheme for at-
taining compliance expeditiously, consistent with orderly
application of the Act's 1984 requirements.
DISCUSSION
Section 301(b)(l)(A) of the Clean Water Act requires
all source-s of pollutants, other than publicly-owned treat-
ment works, to achieve BPT by July 1, 1977, and Section
301(b)(l)(C) re.qui.res all sources to comply with WQS by
that date. Section 301(b>(2) establishes a second set of
more stringent technological requirements to be achieved
by non-POTW's by 1984 (or three years after the date the
requirements are established, up to 1987). Thus, the Act
establishes a two-phase structure for achieving specified
effluent limitations.
The questions raised by your memorandum arise because
(1) some sources did not achieve compliance with the Phase I
requirements by July 1, 1977, and (2) in some instances
the definitions of BPT, or the requirements of WQS, have
been revised, and current levels of treatment, previously
in compliance with BPT or WQS, as defined in an NPDES per-
mit, are not adequate to meet the revised BPT or WQS. The
Act addresses the first situation, but it is silent as to.
the second.
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Congress made it clear, in Section 301(b)(l), that ini-
tial compliance vith BPT and WQ5 was to be achieved by July 1,
1977. In the 1977 amendments to the Act Congress recognized
that some sources had not set those requirements, sometimes
for justifiable reasons. Nonetheless, it refused to waive or
extend the deadline for such sources. See H.R. 3199, 95th Cong.
Is: Sess., Section 13, eliminated in conference; see also,
Cong. Rec. S 13538, Aug. 4, 1977, explaining tha: the 1977
amendments do not extend the deadlines of Section 301 but
allow the Administrator certain Section 309 enforcement op-
tions .
Since Congress expressly determined not to waive Phase I
compliance requirements or allow permits to extend the com-
pliance deadlines of Section 301(b)(l), EPA cannot claim im-
plied authority to do so. Instead, if a permit must be issued
or reissued to a source which has never achieved compliance
with applicable BPT or WQS requirements, the permit must re-
quire immediate compliance with those requirements as they are
currently in effect when the permit is issued, and if relief
is to be provided, Section 309(a)(5) orders must be employed.
II
A source which had complied with BPT before the deter-
mination of BPT changed is in a different position from the
source which never complied. This source has already achieved
the Act's Phase I requirement as administratively interpreted
'and applied to it and is in a position to proceed with the
second phase. Therefore, it would be inappropriate to impose
an immediate requirement that revised BPT be achieved.
The requirement that BPT be achieved remains in the Act
even after the 1977 deadline has passed. However, the Act
does not set a specific deadline for attaining revised BPT
requirements, and some reasonable scheme should be adopted
to ensure that such requirements be achieved as expeditiously
as practicable, consistent with orderly imposition of Phase II
(BAT and BCT) requirements. Thus, for example, if compliance
with revised BPT is a logical step towards attainment of BAT
or BCT limitations, such compliance could be included as a
reasonable interim element of the source's permit responsibili-
ties. Certainly any applicable BPT requirements would have to
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be met not later than the date on which compliance with 5CT
and BAT is required. However, where a compliance date prior
to that tiae would require construction or modification in
addition to previously defined BPT, and where that construc-
tion would not constitute a logical step toward BAT, im-
posing the interim BPT requirement night well undermine the
Act's orderly progression from the 1977 to the 1984 require-
ments .
Ill
The issue of compliance dates for ongoing WQS compliance
is less clear. The Act establishes the end date for the first
stage of WQS compliance, but for subsequent levels of possibly
more stringent WQS, the Act defers to State planning determina-
tions. See Section 303(e)(3)(A), Section 303(e)(3)(F), Sec-
tion 20S(b)(2)(3), Section 208(e), and Section 303(e)(3) (B).
If a* state has revised its WQS and established a schedule of
compliance at least as stringent as any federal requirement,
th-e KPDES permit would have to impose the state-established
limitation. However, if the State plans do not contain specific
compliance schedules, the EPA permit writer must establish the
source's Phase II WQS compliance schedule.
The Act supplies no express guidance as to what the EPA-
determined, post-1977 WQS compliance schedule should be. In
general, Congress intended compliance with the Act's require-
ments to occur at the earliest practicable time.* One option,
therefore, might be for EPA simply to establish the policy
that post-1977 compliance must be achieved by the earliest
practicable time. J
Alternatively, the Section 301(b)(2) pattern is to re-
quire second round municipal compliance in 1983 and second
round industrial compliance in 1984. It is reasonable to
* The Section 301 requirements are all to be met "no later
than" the statutory deadlines. See, e . |. . Leg . H ittt . 163- In
the 1977 amendments, Congress confirmed its interest in securing
the earliest possible compliance. See Sectio-ns 309(a)(5) and
309(a)(6), added by the amendments.
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establish WQS compliance schedules in harmony with the Act's
general regulatory structure. Thus, EPA may infer tnat the
Section 301(b)(2) dates should be applied to WQS, in the ab-
sence of any sore stringent state schedules.
Which of these approaches (or vhat combination of them)
is to be selected is a policy judgment. Since the Act does
not express compliance schedule requirements for post-1977
WQS compliance, EPA may wish to supply guidance by regula-
tion. Tnis would provide a reasonable, permanent method for
establishing WQS compliance schedules where none are avail-
able from the states.
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II.A.6,
"Policy for the Second Round Issuance of NPDES Industrial Permits", dated
June 2, 1982.
"?t\
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'I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON, D C 20460
JUN 2 1982
MEMORANDUM
SUBJECT: Policy for the Second Round Issuance of NPDES
Industrial Permits
TO: Regional Administrators ,x
FROM: Frederic A. Eldsness, Jr.
Assistant AdministratdrxfoV'toater (WH-556)
The final "second round" policy for re-issuing NPDES indus-
trial permits is attached. The policy reflects Regional comments
in response to previous drafts sent to you and discussions with
the Water Management Division Directors. This policy applies
only to EPA-issued permits, although States may choose to adopt
tne principles outlined. I am sending the policy to both the
NPDES and non-NPDES States under separate cover to solicit their
comments and advice on tne applicability of the policy to their
programs. In addition to the priorities set here for reissuance
of NPDES industrial permits, the issuance of new source or new
discharge permits remains the highest priority to assure no
undue delay in the construction or modification of such sources.
This policy reflects the Administrator's conviction that,
to the extent possible, permit requirements should be based
either on promulgated national wastewater treatment standards
or requirements necessary to achieve the designated water uses
specified in water quality standards. It also reflects the
principles tnat permit effluent limitations should be developed
using good scientific information and that/ to the extent
practicable, permits of a lasting value should oe developed.
Such permits assure protection of the environment wnile estab-
lishing wastewater treatment requirements that will not be
subject to frequent change.
The policy establishes five priorities for permit issuance
and describes the basis for assigning permit priorities and*
developing limitations. Based on this policy, Regions are to
develop and submit by June 30, 1982, a list of priority permits
which the Region expects to issue before the end of FY 1983.
The initial list is to be submitted to Headquarters and should
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- 2 -
contain key information such as the facility name, owner/operator,
location, receiving water (STORET Reacn Number), the issuance
priority category (see attachment to the policy), pollutants of
concern, and the anticipated schedule of issuance. Headquarters
will use this information to report to the Congress and others on
SPA's plans for and status of the permit program — what our
priorities are and where our resources are going*. Regional
performance against established plans will be assessed as part of
the Office of Water's guidance/evaluation process.
Regions should also work cooperatively with the NPDES States
to develop similar priority permit information on permits to be
issued by the States. This is important to assuring a truly
national effort and can be done as a part of routine cooperative
program planning.processes, such as tne development of 106 plans.
In this way we can determine how EPA can most usefully assist the
States in their permitting efforts. Establishing State priority
permit lists will also serve to assist in determining the most
appropriate State-issued permits to be reviewed by the Region.
EPA headquarters will be providing guidance and assistance
to help carry out this policy. Questions concerning tr.e policy
should be directed to Bruce Barrett, Director, Office of Water
Enforcement and Permits (FTS/Area Code 202-755-0440).
Attachment
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON, D C. 20460
OFFICE OF
WATER
Policy for the Second Round Issuance of National
Pollutant Discharge Elimination system (NPDES)
Permits for Industrial Sources
STATEMENT OF POLICY
S?A-issued industrial NPDES permits will' be issued according to
the following priorities. (A detailed explanation of the
policy is contained in the attachment to the "Implementation"
section of this policy.) First priority shall be given to
facilities discharging to waters where use impairment problems
have been identified and where there is adequate information to
develop either a water quality-based permit or, in the exceptional
case detailed in the attachment, a BAT/BCT permit relying on best
professional judgment. The second priority is to permit facilities
for whicn applicable BAT effluent limitations guidelines have
been promulgated. The third priority covers facilities suspected
of contributing to the impairment of a designated water use but
where insufficient information exists to confirm the extent of
the use impairment. The fourth priority addresses facilities for
which effluent limitations guidelines are not scheduled for
promulgation and the existing permit limitations do not reflect
sufficient treatment. The lowest priority is extension or
reissuance of permits to facilities for which effluent limita-
tions guidelines are not scheduled and the existing permit
requires sufficient treatment. In all permitting actions, EPA
will work cooperatively with States and permittees and adhere to
procedures established by applicable statutes and regulations.
This policy also establishes a mechanism for developing priority
permit lists with the first list due by June 30, 1982 (see "Other
Considerations* in the Attachment).
•
•
EXPIRATION DATE
This policy will remain in effect until September 30, 1983.
June 2, 1982
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-2-
BACKGROUND
EPA and authorized States issue NPDES permits for periods not
to exceed five years. Permit limits are based either on the
application of available technology or on the protection of
water quality, whichever is more stringent. The clean Water
Act (CWA) establishes two levels of technology standards and
deadlines for industrial compliance: best practicable control
technology currently available OPT) by Ju-y 1, 1977 and best
available technology economically achievable /best conventional
technology (3AT/BCT) by July 1, 1984.
The majority of the "first round* permits, reflecting BPT or more
stringent water quality-based limitations, were issued between
1974 and 1976. Most of these were based on technology using
•best professional* judgment" (BPJ) because effluent guidelines
were unavailable (relying on section 402(a)(l) of the CWA). In
1973, as these permits began to expire, EPA instituted a policy
of reissuing short-term (2 to 3 year) permits in order to await
promulgation of 3AT/BCT effluent guidelines. Most of these
short-term permits have now expired. Thus there are now more
tnan 35,000 expired permits. For the most part, these expired
permits continue in effect under the federal Administrative
Procedure Act or similar State statutes.
In the past, EPA and many States focused almost exclusively on
the technology-based effluent limitations approach. While EFA.
will continue this technology-based approach using BAT/3CT
effluent limitations guidelines, EPA will also look beyond
technology-based requirements and issue permits based on scien-
tifically determined requirements for assuring environmental
protection. The development of requirements based on protection
of water quality has often been hampered by lack of data. This
policy makes clear that the burden of data collection is shared
oy SPA, the State, and the discharger. Further, the implementa-
tion of this policy should assure the most effective use of
resources by carefully scheduling permit activities, waiting
for national treatment standards where practicable, making
better use of existing data, and initiati- cooperative efforts
with States and permittees.
This approach is supported by initiatives that will strengthen
both technology-based and water quality-based effluent limitations,
It will produce permits of lasting value that are not subject to '
frequent change. EPA is moving ahead to promulgate national ,
effluent limitations guidelines on a schedule which will provide
guidelines for 24 primary industry categories before the end of
FY 1983. Promulgated effluent limitations guidelines, in
conjunction with tneir development documents, expert assistance,
and permit writer training, will assure the application of good
science and produce well founded permit limitations, individual
permit limitations developed in this way will significantly
reduce conflicts and avoid protracted appeals.
t fl fl 7
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-3-
A sound technical and legal basis for permit limits is also
provided by State water quality standards. All States have
standards for each designated water use which include both
numeric criteria for specific pollutants and general conditions.
Expanding the scope of these standards and improving their
scientific basis is a continuing process which is now being given
additional attention by EPA, the States, and throughout the
scientific community. SPA is encouraging States to review and
revise their standards to reflect site-specific factors. The
technological basis for implementing these standards using Total
Maximum Daily Load/Waste load Allocations is being significantly
advanced. These factors and site-specific biological and chemical
analysis will provide the needed scientific basis .for water
quality-based effluent limitations in permits.
APPLICATION
This policy applies only to EPA-issued industrial NPDES permits
although States may choose to adopt the principles outlined.
IMPLEMENTATION
This policy is implemented by establishing permit issuance
priorities and developing priority permit lists and schedules.
This approach is designed to assure the best use of available
resources and produce results where tney are most needed. The
details of this approach are explained in the attachment.
L/ilfl-
P re de rare A.
Date
Assistant \Administrator
for Water
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Fee ! Round
Policy
Peri
Attachment
Permitting Prior it lee
ptacuflalon/Implementation
first Priority
Issue permits to
facilities where water
use impairment problems
have been Identified
Second Prtor11y
Issue permits baaed on
promulgated BAT guidelines
where BAT guidelines
ere scheduled
'2s1
o States, with EPA aaaletance. Identify water bodies where it la known that the water use
is impaired or other major water quality problems exist. This may be based on factors
such as drinking water supply contamination, exceedences of applicable water quality
standards, and bioaccumulation of toxic pollutants* In coordination with the State, the
available scientific information should be reviewed to identify significant contributors
and determine whether there la adequate scientific information to develop water quality-
baaed limits for those dischargers. •
o For those dischargers identified aa contributing to a use impairment or other major water
quality problem, and for which there are sufficient information and da'ta, permit limits
should be developed based on section 303(d) total maximum daily load/wasteload alloc-
tiona (TMDL/WLA's) and relevant portions of section 208 plans* Where sufficient data
exist, EPA may develop water quality-based limits in the absence of 303(d) TMUL/WLA'a,
using scientifically acceptable methods, including the use of bloassays. However, such
effluent limits are subject to public, administrative, and judicial review aa part of
the permit process and any other permittees contributing to the water quality problem
will have an opportunity to participate after notice of proposed effluent limits. All
water quality-based permits with expiration dates beyond July 1, 1984, also must meet
the statutory definition of UAT and BCT. (
o In those exceptional cases where major water quality problems are identified but there
is insufficient information to develop limitations baaed on water quality, and effluent
guidelines will not be available In the near term, the permit should be based on good
scientific information with the limits reflecting BAT/BCT. In making determinations of
BAT/BCT, the permit writer will rely on best professional Judgment. Such permits will
be issued with five year terms. More stringent limits required by national technology-
based guidelines issued during the tern of the permit will be Included in subsequent
permits. In addition, the organic chemicals and plastics/synthetics industry categories
will likely present a number of cases which* because of the identified use impairment or
other major water quality problems. Justify the uoe of this approach. EPA headquarters
will provide assistance to permit writers through teams of industry experts for these
industrial categories.
o Where BAT effluent guidelines have been promulgated, permits will be Issued reflecting
guidelines and any other necessary BAT/BCT or water-quality based limits. If BAT guide-
lines are scheduled but have not been promulgated and no major water quality problems are
involved, the first round BPT permit should be extended under the Administrative Procedure
Act (APA) while waiting for BAT guidelines*
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perioittlnR Priorities
Second Round industrial Permitting Pulley
(BPA-lsaued Permita Only)
Discussion/Impieumntation
Attachment
1'age 2
Third Priority
Issue permits to
factlit lea where
water uae Impairment
problems ace suspected
Fourth priority
Issue perntlta where
upgrading is needed and
BAT guidelines are not
scheduled
Fifth Priority
Issue permits for all
others as the last
priority >
o For those dischargeru suspected of contributing to major water use impairment or other
major water quality problems, but where insufficient confirming data exist, a specific
short-term program of data collection should be initiated. The data collection program
should Include requirements Cor blamonltorlng, chemical analysta, or field surveys
necessary to obtain information to determine the magnitude and extent of the water uae
impairment* In setting up the data collection program, particular attention should be
paid to potential contamination of public drinking water supplies* EPA Headquarters
will provide further guidance on both the procedural mechanisms for implementing this
data collection program as well as substantive guidance on the type of biomonltoring
or chemical analysis requirements that could be used to collect data.
o If sufficient information Is obtained that shows the discharger Is contributing to water
use Impairment problems, a new five year permit or modification of existing permit limits
should be developed as appropriate.
«
o Where no further BAT guidelines development la planned and the first round permit does
not reflect sufficient treatment to comply with BAT/BCT, subsequently promulgated HPf
guidelines or water quality standards, upgrade the permits limits and/or other necessary
conditions and issue a five-year permit. Limits on conventional pollutants reflecting
BUT may be developed using the UCT methodology when It becomes available, and limits on
priority pollutants reflecting BAT should be developed using BPJ. Normally, significant
discharges of priority pollutants are not expected where DAT guidelines are not
scheduled for developmeat.
o Where no further guidelines development is planned but the first round permit requires
sufficient treatment (I.e., would meet what are likely to be considered BAT/BCT limits and
no water quality problems are suspected), the existing permit may be extended under APA
provisions or reissued only as the last priority.
June 2
902
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Second RounJ Permitting I'ultcy
(EPA-Issuot) Permits Only)
Other Considerations
Attachment
Page 3
Priority Permits
General Permits
i« Compliance Deadline
EPA Regional Offices will identify facilities which are probable contributors to water
use Impairment or other major water quality problems. The 30S(b) reports and 303(d)
priority segments will be considered in identifying these priority facilities*
Using tills and other Information, the Regional Offices will develop a listing of permits
which are expected to be issued before October 1, 1983 consistent with the priorities
established by title policy. The listing will include permit Issuance schedules which
will provide a reasonable estimate of expected Issuance. The Initial list of priority
permits and schedules are to be transmitted to Headquarters by June 30, 19B2. This list
should be updated periodically to reflect current plans and priorities. Encouraging
States to establish similar priority lists is also essential to the national program.
In addition to the points described above, we are encouraging the use of general permits
to cover many facilities with the same or substantially similar types of operations and
the same types of wasteslream discharges. This should help significantly in reducing
the backlog of expired NPUES permits. The Office of Water will analyze the opportunities
for general permits for Industry categories, Including some primary industry categories,
where the facilities' operations and discharges are very similar* Multi-State coverage
will also be considered. We will keep you informed of progress in this area. In the
meantime, permitting authorities should consider Issuing general permits in their own
jurisdictions where appropriate.
All permits extending past July 1, 1984 must contain final limitations that are deemed
equivalent to DAT/BCT regardless of whether the Holts are based on wafter quality,
effluent guidelines, or BPJ.
June 2, 1982
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II.A.7,
"Policy for the Development of Water Quality-Based Permit Limitations for
Toxic Pollutants", dated February 3, 1984. (See also 49 FR 9016, March 9,
1984.)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC. 20460
OFFICE OF
WATER
Policy for the Development of Water Quality-Based
Permit Limitations for Toxic Pollutants
STATEMENT OF POLICY
To control pollutants beyond Best Available Technology
Economically Achievable (BAT), secondary treatment, and other
Clean Water Act technology-based requirements in order to
meet water quality standards, the Environmental Protection
Agency (EPA) will use an integrated strategy consisting of
both biological and chemical methods to address toxic and
nonconventional pollutants from industrial and municipal
sources. Where state standards contain numerical criteria for
toxic pollutants, National Pollutant Discharge Elimination
System (NPDES) permits will contain limits as necessary to
assure compliance with these standards. In addition to en-
forcing specific numerical criteria, EPA and the States will
use biological techniques and available data on chemical
effects to assess toxicity impacts and human health hazards
based on the general standard of "no toxic materials in toxic
amounts."
EPA, in its oversight role, will work with States to
ensure that these techniques are used wherever appropriate.
Under section 308 and section 402 of the Clean Water Act (the
Act), EPA or the State may require NPDES permit applicants to
provide chemical, toxicity, and instream biological data neces-*
sary to assure compliance with standards. Data requirements
may be determined on a case-by-case basis in consultation
with the state and the discharger.
Where violations of water quality standards are identified
or projected, the State will be expected to develop water
quality-based effluent limits for inclusion in any issued
permit. Where necessary, EPA will develop these limits in
consultation with the State. Where there is a significant
likelihood of toxic effects to biota in the receiving water,
EPA and the States may impose permit limits on effluent tox-
icity and may require an NPDES permittee to conduct a toxicity
reduction evaluation. Where toxic effects are present but
there is a significant likelihood that compliance with tech-
nology-based requirements will sufficiently mitigate the effects,
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EPA and the States may require chemical and toxicity testing
after installation of treatment and may reopen the permit to
incorporate additional limitations if needed to meet water
quality standards. (Toxicity data, which are considered "new
information" in accordance with 40 CFR 122,62(a)(2), could
constitute cause for permit modification where necessary.)
To carry out this policy, EPA Regional Administrators will
assure that each Region has the capability to conduct water
quality assessments using both biological and chemical methods
and provide technical assistance to the States.
BACKGROUND
The Clean Water Act establishes two principal bases for
effluent limitations. First, existing dischargers are required
to meet technology-based effluent limitations that reflect the
best controls available considering economic impacts. New source
dischargers must meet the best demonstrated technology-based
controls. Second, where necessary, additional requirements are
imposed to assure attainment and maintenance of water quality
standards established by the States and approved by EPA. In
establishing or reviewing NPDES permit limits, EPA must ensure
that the limits will result in the attainment of water quality
standards and protect designated water uses, including an adequate
margin of safety.
For toxic and nonconventional pollutants it may be difficult
in some situations to determine attainment or nonattainment
of water quality standards and set appropriate limits because of
complex chemical interactions which affect the fate and ultimate
impact of toxic substances in the receiving water. In many
cases, all potentially toxic pollutants cannot be identified
by chemical methods. In such situations, it is more feasible to
examine the whole effluent toxicity and instream impacts using
biological methods rather than attempt to identify all toxic
pollutants, determine the effects of each pollutant individually,
and then attempt to assess their collective effect.
The scientific basis for using biological techniques has
advanced significantly in recent years. There is now a general
consensus that an evaluation of effluent toxicity, when
adequately related to instream conditions, can provide a valid
indication of receiving system impacts. This information can
be useful in developing regulatory requirements to protect
aquatic life, especially when data from toxicity testing are
analyzed in conjunction with chemical and ecological data.
Generic human health effects methods, such as the Ames mutegen-
icity test, and structure-activity relationship techniques are
showing promise and should be used to identify potential hazards.
However, pollutant-specific techniques are the best way to
evaluate and control human health hazards at this time.
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Biological testing of effluents is an important aspect of
the water quality-based approach for controlling toxic pol-
lutants. Effluent toxicity data in conjunction with other data
can be used to establish control priorities, assess compliance
with state water quality standards, and set permit limitations
to achieve those standards.1 All States have water quality
standards which include narrative statements prohibiting the
discharge of toxic materials in toxic amounts. A few State stan-
dards have criteria more specific than narrative criteria (for
example, numerical criteria for specific toxic pollutants or a
toxicity criterion to achieve designated uses). In States where
numerical criteria are not specified, a judgment by the regula-
tory authority is required to set quantitative water quality-
based limits on chemicals and effluent toxicity to assure compli-
ance with water quality standards.
APPLICATION
This policy applies to EPA and the States. The policy
addresses the use of chemical and biological methods for assuring
that effluent discharges are regulated in accordance with Federal
and State requirements. This policy was prepared, in part, in
response to concerns raised by litigants to the Consolidated
Permit Regulations (see 47 Federal Register 52079, November 18,
1982). Use of these methods for developing water quality
standards and trend monitoring are discussed elsewhere (see
48 Federal Register 51400, November 8, 1983 and Basic Water
Monitoring Program EPA-440/9-76-025). This policy is part of
EPA's water quality-based control program and does not supercede
other regulations, policy, and guidance regarding use attain-
ability, site-specific criteria modification, wasteload allocation,
and water quality management.
IMPLEMENTATION
State role-
The control of toxic substances to protect water quality
must be done in the context of the Federal-State partnership.
EPA will work cooperatively with the states in identifying
potential water quality standards violations, assembling relevant
1 Section 308 of the Act and corresponding State statutes
authorize EPA and the States to require of the owner/operator
any information reasonably required to determine permit limits
and to determine compliance with standards or permit limits.
Biological methods are specifically mentioned. Toxicity permit
limits are authorized under Section 301 and 402 and supported by
Section 101.
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-4-
data, developing appropriate testing requirements, determining
whether standards are being violated, and defining appropriate
permit limits.2
Integration of approaches-
The type of testing that is most appropriate for assessing
water quality impacts depends on the type of effluent and dis-
charge situation. EPA recommends that an integrated approach,
including both biological and chemical techniques, be used to
assess and control water quality. The principal advantages of
chemical-specific techniques are that (1) chemical analyses
are usually less expensive than biological measurements in
simple cases; (2) treatment systems are more easily designed to
meet chemical requirements than toxicity requirements; and (3)
human health hazards and bioaccumulative pollutants can best be
addressed at this time by chemical-specific analysis. The prin-
cipal advantages of biological techniques are that (I) the
effects of complex discharges of many known and unknown con-
stituents can be measured only by biological analyses; (2) bio-
availability of pollutants after discharge is best measured
by toxicity testing; and (3) pollutants for which there are
inadequate chemical analytical methods or criteria can be
addressed.
Pollutant-specific chemical analysis techniques should be
used where discharges contain a few, well-quantified pollutants
and the interactions and effects of the pollutants are known.
In addition, pollutant-specific techniques should be used where
health hazards are a concern or bioaccumulation is suspected.
Biological techniques should be used where effluents are complex
or where the combined effects of multiple discharges are of
concern. EPA recognizes that in many cases both types of
analysis must be used.
Testing requirements-
Requirements for dischargers to collect information to
assess attainment or nonattainment of State water quality stan-
dards will be imposed only in selected cases where the potential
for nonattainment of water quality standards exists. Where
water quality problems are suspected but there is a strong in-
dication that complying with BCT/BAT will sufficiently mitigate
the impacts, EPA recommends that applicable permits include
testing requirements effective after BCT/BAT compliance and
reopener clauses allowing reevaluation of the discharge.
2 Under section 303 and 401 of the Act, States are given primary
responsibility for developing water quality standards and limits
to meet those standards. EPA's role is to review the State
standards and limits and develop revised or additional standards
or limits as needed to meet the requirements of the Act.
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-5-
The chemical, physical, and biological testing to be con-
ducted by individual dischargers should be determined on a case-
by-case basis. In making this determination, many factors must
be considered, including the degree of impact, the complexity
and variability of the discharge, the water body type and hydro-
logy, the potential for human health impact, the amount of existing
data, the level of certainty desired in the water quality assessment,
other sources of pollutants, and the ecology of the receiving
water. The specific data needed to measure the effect that a
discharger has on the receiving water will vary according to
these and other factors.
An assessment of water quality should, to the extent prac-
ticable, include other point and nonpoint sources of pollutants
if the sources may be contributing to the impacts. Special
attention should be focused on Publicly Owned Treatment Works
(POTW's) with a significant contribution of industrial wastewater.
Recent studies have indicated that such POTW's are often signi-
ficant sources of toxic materials. When developing monitoring
requirements, interpreting data, and determining limitations,
permit engineers should work closely with water quality staff at
both the State and Federal levels.
A discharger may be required to provide data upon request
under section 308 of the Act, or such a requirement may be
included in its NPDES permit. The development of a final assess-
ment may require several iterations of data collection. Where
potential problems are identified, EPA or the State may require
monitoring to determine whether more information is needed con-
cerning water quality effects.
Use of data-
Chemical, physical, and biological data will be used to
determine whether, after compliance with BCT/BAT requirements,
there will be violations of State water quality standards result-
ing from the discharge(s). The narrative prohibition of toxic
materials in toxic amounts contained in all State standards is
the basis for this determination taking into account the desig-
nated use for the receiving water. For example, discharges to
waters classified for propagation of cold water fish should be
evaluated in relation to acute and chronic effects on cold water
organisms, potential spawning areas, and effluent dispersion.
Setting permit limitations-
Where violations of water quality standards exist or are
projected, the State and EPA will determine pollution control
requirements that will attain the receiving water designated
use. Where effluent toxicity is- an appropriate control para-
meter, permit limits on effluent toxicity should be developed.
In such cases, EPA may also require a permittee to conduct a
toxicity reduction evaluation. A toxicity reduction evaluation
is an investigation conducted within a plant or municipal system
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-6-
to isolate the sources of effluent toxicity, determine specific
causative pollutants if possible, and determine the effec-
tiveness of pollution control options in reducing the effluent
toxicity. If specific chemicals are identified as the cause of
the water quality standards violation, these individual pol-
lutants should be limited. If a toxicity reduction evaluation
demonstrates that limiting an indicator parameter will ensure
attainment of the water quality-based effluent toxicity require-
ment, limits on the indicator parameter should be considered in
lieu of limits on effluent toxicity. Such indicator limits are
not limits on causative pollutants but limits demonstrated to
result in a specific toxicity reduction.
Monitoring-
Where pollution control requirements are expressed in terms
of a chemical or toxicological parameter, compliance monitoring
must include monitoring for that parameter. If an indicator
parameter is used based on the results of a toxicity reduction
evaluation, periodic toxicity testing may be required to confirm
the adequacy of the indicator. Where biological data were used
to develop a water quality assessment or where the potential
for water quality standards violations exist, biological
monitoring (including instream monitoring) may be required to
ensure continuing compliance with water quality standards.
EPA believes that the intelligent application of an
integrated strategy using both biological and chemical techniques
for water quality assessment will facilitate the development of
appropriate controls and the attainment of water quality
standards. EPA looks forward to working with the States in a
spirit of cooperation to further refine these techniques.
February 3, 1984
Date
Jack E. Ravan
Assistant Administrator
for water
n.
-------
II.A.8,
"Continuance of NPDES General Permits under the APA", dated January 16,
1984.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C 20460
JAN 1
*See Nunan Kitlutsisti v. Arco Alaska, Im
(D.C. Alaska, 1984), 592 F.S. 832, for a
discussion of this issue. The court held tha
an expired general permit isoupics or not continued
under the APA? on appeal the
was vacated, however.
MEMORANDUM
•SUBJECT: Continuance of NPDES General Permits Under the APA
• ' -^
FROM: Bruce R. Barrett, Director /
Office of Water Enforcement and Permits (EN-33S)
TO: Regional Water Management Division Directors
Regional Counsels
We have received a number o£ inquiries as to whether
continuation of expired general permits is allowed under the
Administrative Procedure Act (APA) and the NPDES regulations;.
recent Office of General Counsel (OGC) opinion (attached)
ndicates that such continuance is legally permissible. However,
nere are important reasons for EPA not to rely on APA continu-
ance except in extreme cases where permit reissuance is delayed
for unexpected or unavoidable reasons. This memorandum addresses
tne general permit reissuance process in light of OGC's recent
review of the continuance issue.
SUMMARY
d^B^BB«^«^V^B» J J
NPDES general permits may be continued under the APA
where the Agency has failed to reissue the permit prior to
expiration. Although continuance is legally permissible,
permits should be continued only as a last resort and continuance
snould be avoided by timely reissuance of general permits
wherever possible.
Because of the geographic scope of general permits and the
number of facilities covered, continuance could raise questions
as to whether EPA has adequately considered long-term cumulative
environmental impacts, exacerbate the permit issuance backlog,
and create new issues or workload problems associated with new
facility permits since new facilities cannot be covered by a
sr.tinued permit. Continuance is generally avoidable given
•equate planning. Where continuance is unavoidable, it should
for the shortest possible time. Upon determining that a
eneral permit will not be reissued prior to expiration, the
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- 2 -
Regional Water Management Division Director should inform the
Permits Division Director and provide a specific schedule for
completing reissuance.
IMPLEMENTATION
The following requirements govern the continuance of
general permits:
o Only those facilities authorized to discnarge under
the expiring general permit are covered by the
continued oermit. " *
• . •»
o Where the notification requirements of a general
permit provide permit coverage prior to the actual
commencement of operations at a site (e.g., mobile ,
seafood processors and oil and gas drilling vessels)
facilities providing such notice prior to expiration
» are covered by the contfnued permit.
o At least six months prior to the expiration date of a
general permit, the Regional Water Management Division
Director should submit a draft general permit and a
schedule for permit issuance or reissuance to the
Permits Division Director. If a draft general permit
is not ready at that time, an explanation of the reasons
for delay and a schedule for permit development and
reissuance, should be submitted instead. The Permits
Division Director will expedite permit issuance and
reissuance processes at headquarters as much as possible
and will inform upper management in the Office of
Water of any significant delays.
DISCUSSION
As with individual NPDES permits, it may become necessary
to administratively continue a general NPDES permit wnen re-
issuance of the permit or issuance of a new permit is impossible
before permit-expiration. The APA allows for continuance of a
Federal"license or permit when a permittee has made a timely
and complete application for a new permit. Until OGC's recent
review of the issue, OWE? had advised the Regional Offices
that general permits could not be continued under the APA
because the KPDES regulations do not require applications for
general permits. OWE? requested that OGC review and provide a
Britten opinion on this issue since a number of parties had
questioned our legal position. On Novemoer 17, 1983, OGC informe
OWE? tnat general permits can legally be continued under the
APA.
-------
i There are a number of strong policy and program reasons to
ure timely reissuance rather tnan relying on APA continuance.
any general permits cover several dozens or even hundreds of
,ncividual facilities. The large numoer of facilities covered
»nd the broad geographic coverage tend to focus industry and
puolic attention on Agency inaction when the permit is allowed
so expire, especially in the early stages of implementation of
the general permit program.
Many general permits are controversial at the time of
initial permit issuance. Similar controversies can be antici-
pated during reissuance. £?A cannqt allow tne public to
perceive that we are avoiding these issues through administrative
continuance of expired permits. For example, cumulative en-
vironmental impact assessments hinge on the number and volume
of discnarges. Information gathered during the term of tne
original permit may justify new permit limitations, terms and
concitions at tne tine of reissuance. For marine dischargers,
ceterminations pursuant to S403(cJ of tne Clean Water Act are
usually dependent on the estimates of tne number of facilities
tnat will discharge during the term of the permit. Delay in
updating these determinations raises questions about potential
environmental impacts and the efficacy of permit conditions.
.milar issues arise where there have been new standards or
"fluent limitation guidelines promulgated during the course
the permit or changes in the CWA. or applicable requirements
ader other applicable statutes (e.g., Coastal Zone Management
Act, Endangered Species Act).
Finally,, a major goal of the general permit program is to
reduce the Agency's NPDES permit issuance backlog. Allowing
general permits to expire aggravates the backlog problems, in
addition, new dischargers would not be covered until SPA re-
issued the general permit. Since these facilities would be
liable for discharge without a permit, they would likely request
an individual permit and be required to submit a full application
and do appropriate testing. This creates a permit issuance
workload demand that would be avoided by timely reissuance of
the general permit, as well as putting burdens on permit appli-
cants tnat would be .removed by reissuance of the general, permit.
Given the drawbacks and proolems, administrative continuance
of general permits should be the exception rather than the rule.
Adequate planning and timely permit preparation will allow us
to avoid the necessity to use administrative continuance except
as a stop gap, short term measure. The Office of Water Snforce-
-ent and Perrrits will work with tne Regions to avoid continuance
-•erever possible.
— Colburri T. Cheraey, OGC
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-------
II.A.9,
Summaries of NPDES Permit Decisions by the Administrator and Judicial
Officer (Issued irregularly. For copies of summaries, contact the Permits
Division, OWEP, EN-336).
-------
-------
II.A.10.
"Training Manual for NPDES Permit Writers" dated May, 1987. Table of
Contents only. Available from Permits Division, OWEP, (EN-336).
-------
-------
Environmental 3'o'»
-------
:*-•. j-a-.ses r:
-------
BASIC COURSE FOR PERMIT WRITERS
I. INTRODUCTION
A. Overall purpose of the course/manual 1
B. Overview of the NPDES nrogram 1
C. Evolution of the NPDES program 2
D. Types of NPDES program authority 4
II. THE APPLICATION FORM AMD ADDITIONAL INFORMATION
A. The Application Form 7
1. who is required to obtain a permit 7
2. Explanation of the application forms 7
3. When an application must be filed 8
B. Reviewing the Application 8
1. Completeness «... 9
2. Accuracy 11
C. Additional Information 13
1. Background information review................... 13
2. Facility inspection 14
III. DEVELOPING THE DRAFT PERMIT
A. General Considerations 15
1. Contents of a permit 15
2. Importance of documentation 15
B. Effluent Limitations 16
1. Overview * 16
2. Statistical Significance 17
3. Effluent Limitation Guidelines 18
a. Technology-based requirements of CWA 18
b. General Considerations 20
c. Categonzation/Subcategonzation 22
d. Production 23
e. Alternate Limits 24
f. Multiple Products or Categories 25
g. Mass vs. Concentration 26
4. Water quality considerations 28
a. Water quality criteria and standards 28
b. Determination of WQ-Based Limits .....31
c. WQ-Based Limits for Toxics .40
5. Best Professional Judgement 44
a. Definition and'Statutory authority 44
b. Background 44
c. Establishing BPJ conditions.... .45
d. BPJ Permitting tools 47
7.-1
-------
C. Municipal Permitting Issues 48
1. Overview 48
2. Secondary Treatment Definition 49
3. Construction Grants 54
4. National Municipal Policy 55
5. Pretreatment 57
D. Monitoring 61
1. Overview 61
2* Monitoring Points 61
3. Monitoring Frequency 62
4. Types of Sanol i nc 63
5. Analytical M^ltc'is 64
E. Standard Conditions ....66
1. Ove rv i ew 66
2. Types of Standard Conditions 66
F. Special Conditions 68
1. Overview 68
2. Compliance Schedules 68
3 . B i omon 11 or i ".q 68
4. Best lana :j«?nent 3r 2 :-. i s*»s 69
IV. VARIANCES
A. Definition and overview 74
B. Various types 74
1. Economic - 301 (c) 74
2. Water quality - 301(g) .75
3. Innovative Technology - 301(>c) ...76
4. Fundamentally Different Factors - PDF 77
V. FACT SHEET
A. Definition and purpose 78
I. Legal requirement 78
2. Practical need 78
B. Components 78
C. When needed 79
0. Permit rationales 79
VI. PUBLIC NOTICE
A. Overview. 81
B. Type of actions 81
C. When requ i red 81
D. How given.. 81
E. Contents 82
-------
VII. PUBLIC COMMENTS
A. Overview 83
B. Responsibility to respond 83
C. Reopening of public comment period 83
VIII. PUBLIC HEARING
A. When held 84
B. Public Notice 84
C. Contents 84
IX. FINAL PERMIT 85
X- ADMINISTRATIVE RECORD
A. Importance 86
B. Components of the record 86
XI. LEGAL CHALLENGES TO A FINAL PERMIT
A. Overview 88
B. Role of the pemit writer 86
XII. PERMIT MODIFICATION, REVOCATION, AND TRANSFER
A. Permit Modification 90
a. Major 90
b. Minor 90
B. Revocation 92
C. Transfer 92
XIII PERMIT COMPLIANCE AND ENFORCEMENT
A. Responsibilities of the Permittee 93
B. Responsibilities of the Regulator/ Agency 95
C. Enforcement 98
APPENDICES 99
APPENDIX A - GLOSSARY
APPENDIX B - SUMMARY OF PART 122 REGULATIONS
APPENDIX C - KAWABATA NPDES REGULATORY MATRIX
APPENDIX D - LISTING OF TOXIC AND CONVENTIONAL
POLLUTANTS
APPENDIX £ - PRIMARY INDUSTRIAL CATEGORIES
- PROPOSED AND FINAL RULES
APPENDIX F - NPDES LITIGATION
- FINAL RULEMAKING (9-26-84)
APPENDIX G - OVERVIEW OF WATER QUALITY BASED
TOXIC PERMITTING
APPENDIX H - MODEL NPDES PERMIT
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II. NPDES PROGRAM: PRE-ENFORCEMENT
B. INSPECTIONS
-------
-------
II.B.I.
"Visitor's Releases and Hold Harmless Agreements as a Condition to Entry to
EPA Employees on Industrial Facilities",dated November 8, 1972. See GM-1.
-------
-------
II.B.2
"Conduct of Inspections after the Barlow Decision dated April 11, 1979.
See GM-5.
-------
-------
II.B.3.
"NPDES Compliance Sampling Inspection Manual11, dated October 1979. Table
of Contents only.
-------
-------
U' '.?
i'wf
f a
DC 10/79
«
* , ' /
Ci i J 4 «J J J 4 -i '
J
no-
J 7 i O u J W I.U
~'^_ — *
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NPDES COMPLIANCE SAMPLING MANUAL
TABLE OF CONSENTS
Paae No,
DISCLAIMER ii
ACKNOWLEDGEMENT ill
TABLE OF CONTENTS iv
LIST OF ILLUSTRATIONS XI
LIST OF TABLES Xlll
I. SUMMARY AND CONCLUSIONS 1
A. Wastewater Sampling Objectives 1
S. Obtaining -Representative Data 1
C. Accomplishment of Compliance
Samplinq Objectives 2
D. Error Minimization 3
II. INTRODUCTION
A. Backaround 6
B. Enforcement Management System 7
C. Work Group Membership B
III. NPDES PERMIT SAMPLING REOUIREMENTS
A. Introduction II
B. Self-Monitoring Data 11
1. Permit Specifications 11
-- I
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Use of Self-Monitoring Data 12
.srsliance Monitoring 13
General 13
Definitions 13
Objective of Compliance Evaluation
Inspections 13
Compliance Evaluation Inspection
Tasks 14
Objectives of Compliance Sampling
Inspection 15
Compliance Sampling Inspection
Tasks 15
: :caacy of Data 16
--.sr-nining Compliance with Effluent
Citations 16
Instantaneous Conditions 17
Daily Maximum Conditions 17
7-day Average Conditions 18
30-day Average Conditions 18
Sa-nple Collection and Handling 19
i COLLECTION 20
Introduction 20
Sampling Considerations 21
-------
i. General 21
2. Sample Location 23
{a} General 23
(b) Influent , 24
(c) Effluent 24
(d) Pond & Lagoon Sampling 24
3. Sample Volume 25
4. Selection and Preparation of Sample
Container 25
C. Sampling Techniques 25
1. Grab Samples 25
2. Composite Samples 26
(a) Selection of Sample Type 27
(b) Compositing Metnod 27
D. Sample Preservation 29
1. General 29
2. Compliance Considerations 30
S. Analytical Methods 32
1. General 32
2. Alternative Test Procedure 32
F. Sample Identification 33
G. Safety Considerations 34
vi
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-:XA?IC SAMPLERS 37
Introduction 37
^-tomatic Sampler Suosysteti Components 33
Sample Intake Subsystem 38
Sauple Gathering Subsystem 39
(a) Mechanical 39
(b) Forced Flow 40
(c) Suction .Lift 40
Sairple Transport Subsystem 41
Sample Storage Subsystem 42
5. Controls and Power Subsystem 42
Sampler Reliability 42
-Jtallation and Operation of Automatic
-u^pling Equipment 43
Site Selection 43
Equipment Security 44
3. Power Source 44
4. Waste Characteristics 45
5. Sample Preservation During Compositing
Period 45
S-. Winter Operations 45
Desirable Automatic Sampler Characteristics 46
•iSTSWATER FLOW MEASUREMENT 50
'--0
-------
A. Introduction 50
B. Wastewater Flow Measurement Systems 51
C. Field Verification of Flow Measurement
Systems 55
D. Wastewater Flow Measurement Methods 58
1. Volumetric Techniques 58
(a) Vessel Volume 58
(b) Pump Sumps 61
(c) Bucket and Stopwatch 62
(d) Orifice Bucket 63
2. Dilution Methods 63
3. Open Channel Flow Measurements 67
(a) Velocity-Area Method 69
i Introduction 69
11 Current Meters 70
111 Field Practice 74
iv Area and Flow Calculations 76
(b) Weirs 77
i Broad Crested 79
ii Sharp Crested 81
(c) Flumes 89
i Parshall Flumes 89
ii Palmer Bowlus Flumes 94
iii Other Flumes 96
viii
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(d) Open Channel Flow Nozzles 96
(e) Slope-Area Method 97
(f) Measurement by Floats 99
Closed Conduit Flow Measurements 100
(a) Ventun Meter 101
(a) Orifice Meters 102
(s) Flow Nozzles 104
(d) Electromagnetic Flowmeter 106
(e) Acoustic Flowmeter 106
'f) Trajectory Methods 108
'•3) Pump Curves 111
(h) Use of Water Meters 111
5SURANCE 114
- ">cse 114
-icy and Objectives 114
laments of a Quality Assurance Plan 106
duality Assurance in Sample Collection 116
Duplicate Samples 116
-• Split Samples 11?
-. Spiked Samples 117
••. Sample Preservative Blanks 117
=• Precision, Accuracy and Control
Charts 118
Duality Assurance Procedures for Field
Analysis and Equipment ' 118
IX
-------
1. Calibration and Documentation Plan
«t
F. Parameter Requiring Special Precautions 124
1. Organics 124
2. Acidity - Alkalinity 1'iS
3. Miscellaneous Parameters 125
(a) Dissolved Parameters 126
(b) Mercury, Total 126
{c) Phenolics and Cyanides 126
(d) Sulfide and Sulfite 126
VIII. CHAIN OF CUSTODY PROCEDURES 128
A. Introduction 128
B. Survey Planning and Preparation 128
C. Sample Collection, Handling & Identification 129
D. Transfer of Custody and Shipment 132
E. Laboratory Custody Procedures 135
F. Evidentiary Considerations 137
APPENDIX
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LIST OF TABLES
Page
-positing Methods 28
"uai Compositing Method 30
.ndard Conditions For Sharp-Crested Weirs..36
-rp Crested Rectangular Weirs - Velocity
pproach Correction 90
.ty Assurance Procedures For Field
-tlysis And Equipment , . .119
Xlll
-------
II.B.4.
"Interim NPDES Biomonitoring Inspection Manual", dated October 1979. Table
of Contents only.
-------
-------
Of'n, "I 'V"t"r »n
E"'oru.iT«int Ui»i»o"
Wasnmgton DC 20460
r 1979
Waier
interim NPDES
Compliance Biomonitoring
Inspection Manual
MCD - 62
-------
NPDES COMPLIANCE
BIOMONITORING INSPECTION MANUAL
TABLE OF CONTENTS
Page No.
Disclaimer 11
Acknowledgement 111
Foreword ..* iv
Table of Contents vi
List of Appendices ix
I. Introduction 1-1
A. Background 1-1
B. Purpose of Manual 1-4
C. Statutory Authority 1-5
D. Biomonitonng Requirements in Permits 1-7
E. Federal and State Cooperation 1-7
II. Legal Considerations II-1
A. Access and Warrants - Constitutional
and Statutory Requirements II-1
B. Discussions with Permittees or Their
Agents - Privilege Against Self-
Incrimination II-2
C. Expert and Other Testimony II-3
D. Chain of Custody and Preservation of
Documents II-4
E. Relations with the Public II-7
III. Planning Biomonitonng Inspections Ill
vi
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Page No.
A. Pre-inspection Planning Activities III-l
B. Coordination of Inspection Activities with
Permittees, other EPA Programs, and
Government Agencies III-5
: ' Inspection Types IV-1
A. Announced and Unannounced Inspections IV-1
B. Sampling-Type Inspections IV-1
C. Evaluation Inspections IV-3
/. Quality Assurance V-l
A. Effluent Sampling and Handling V-l
B. Test Organisms v-2
C. Facilities and Equipment V-3
D. Dilution Water V-4
E, Test Conditions V-4
F. Reference Toxicants V-4
G. Record Keeping V-6
. I. Health and Safety .Vl-1
A. General VI-1
B. Personal Conduct Vl-2
C. Safety Equipment VI-2
D. General Laboratory Operation .... .VI-2
E. Transportation VI-3
F. Emergency Health and Fire Protection VI-3
G. Accident Reports VI-3
VII. Conducting Biomonitoring Inspections ... VII-1
A. Facilities Access VII-1
B. Conducting Sampling Type-Inspections ...... VII-2
C. Conducting Evaluation Inspections VII-5
VII
-------
VIII. Post Inspection Activities VIII-1
A. Data Evaluation VIII-1
B. Toxicity Laboratory Evaluation Form VIII-5
C. Distribution of Inspection Report VIII-5
D. Follow-up Activities VIII-5
-------
LIST OF APPENDICES
Page
A. Methods for Measuring the Acute Toxicity of
Effluents to Aquatic Organisms, EPA-600/4-78-012 . . . A-l
3. Toxicity Test Report Outline B-l
C. Laboratory Review or Audit C-l
D. Example of Daily Activities of On-site Toxicity
Monitoring D-l
". Sample Tags and Chain of Custody Forms E-l
F. Document Handling Procedures . F-l
G. Definitions G-l
H. Factors Useful in Selecting Candidates for
Inspection H-l
*• Conduct of Inspections After the Barlow's
Decision .' 1-1
IX
-------
'(I
-------
II.B.5.
"NPDES Compliance Monitoring Inspector Training, with Modules on Overview,
Legal Issues, Sampling Procedures, Biomonitoring, Laboratory Analyses
Modules", dated 1988. Table of Contents of individual modules only.
-------
-------
vvEPA
United States Office of Water Enforcement and Permits
Environmental Protection Office of Water
Agency Washington, DC 20460 September 1988
NPDES Compliance
Monitoring Inspector
Training
Overview
-------
NPD8S Compliance Monitoring Inspector Training Nodule: OVERVIEW
TABLE OF CONTENTS
Page
FOREWORD :
1.
2.
3.
4.
5.
6.
7.
INTRODUCTION , . . .
1.1 OVERVIEW OF THE NPDES PROGRAM
1.2 PURPOSE OF THE NPDES COMPLIANCE MONITORING PROGRAM
NPDES COMPLIANCE ACTIVITIES
2.1 COMPLIANCE REVIEWS
2.2 NPDES COMPLIANCE INSPECTIONS
SPECIAL CONSIDERATIONS
* «
3.1 INSPECTOR CONDUCT
3.2 DISCLOSURE OF INFORMATION
3.3 FEDERAL AND STATE COOPERATION
GENERAL INSPECTION PROCEDURES '.
4.1 NPDES INSPECTOR RESPONSIBILITIES
4.2 PRE- INSPECT I ON PROCEDURES
4.3 INSPECTION PROCEDURES
SPECIFIC INSPECTION PROCEDURES
5.1 COMPLIANCE EVALUATION INSPECTION
5.2 CONVENTIONAL AND TOXIC COMPLIANCE SAMPLING INSPECTIONS
5.3 PERFORMANCE AUDIT INSPECTION
5.4 COMPLIANCE BIOMONITORING INSPECTION
PRETRZATNDir COMPLIANCE INSPECTION
6.1 REVIEW OP THE GENERAL PRETREATMENT REGULATIONS
6.2 PRBTREATMENT COMPLIANCE INSPECTIONS
6.3 PRETREATMENT PROGRAM AUDITS
REPORTING REQUIREMENTS
vii
1-1
1-1
1-2
2-1
2-1
2-1
3-1
3-1
3-1
3-3
4-1
4-1
4-2
4-6
5-1
5-1
5-11
5-13
5-17
6-1
6-1
6-2
6-8
7-1
r-7
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NPDBS Compliance Monitoring Inspector Training Module: OVERVIEW
8. POST-INSPECTION PROCEDURES 8-1
8-1
8-1
8-2
8-2
8-2
9. SUMMARY 9-1
w * *
8.2
8.3
8.4
8.5
SUMMJ
DATA ANALYSIS
COMPLETION AND DISTRIBUTION OF REPORTS
TESTIMONY
UPDATING PERMITTEE PILES
«Y
AND FORMS
*»
iv
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NPDBS Compliance Monitoring Inspector Training Module: OVERVIEW
LIST OF APPENDICES
APPENDIX A - GLOSSARY
APPENDIX B - REFERENCES
APPENDIX C - REVIEW QUESTIONS AND ANSWERS ON THE OVERVIEW OP THE NPDES
COMPLIANCE INSPECTION PROGRAM
APPENDIX D - SECTION 308 OF THE CLEAN WATER ACT
APPENDIX E - CRITERIA FOR NEUTRAL SELECTION OF NPDES COMPLIANCE INSPECTION
CANDIDATES
APPENDIX F - LIST OF FIELD SAMPLING EQUIPMENT
APPENDIX G - NPDES COMPLIANCE INSPECTION REPORT FORM (EPA FORM 3560-3)
APPENDIX H - DEFICIENCY NOTICE GUIDANCE AND FORM
LIST OF TABLES AND FIGURES
Table Page
6-1 SUMMARY OF THE GENERAL PRETREATMENT REGULATIONS 6-3
Figure
2-1 NPDES COMPLIANCE INSPECTIONS 2-2
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AEPA
United States Enforcement Division
Environmental Protection Office of Water Enforcement andPermits
Agency Washington, DC 20460
My 1988
NPDES Compliance
Monitoring Inspector
Training
Legal Issues
-------
-------
B/834-485-02a/#13
NPDES Compliance Monitoring Inspector Training! LEGAL ISSUES
TABLE OF CONTENTS
Page
FOREWORD v
1. INTRODUCTION 1-1
1.1 OVERVIEW OF THE NPDES PROGRAM 1-1
1.2 PURPOSE OF THE NPDES COMPLIANCE MONITORING PROGRAM. 1-2
1.3 SOURCES OF LEGAL AUTHORITY 1-3
1.4 NPDES AUTHORITY 1-4
2. AUTHORITY TO INSPECT 2-1
3. PERSONS SUBJECT TO INSPECTIONS 3-1 -
*
4. PREINSPECTION LEGALITIES 4-1
4.1 NEUTRAL INSPECTION PLAN 4-1
4.2 308 LETTERS 4-2
4.3 CONFIDENTIALITY 4-3
4.4 COMPLIANCE FILE 4-6
4.5 PERMITTEE RIGHTS 4-7
5. INSPECTION OBJECTIVES 5-1
6. INSPE,CTION LEGALITIES 6-1
6.1 ENTERING THE FACILITY 6-1
6.2 PRESENTING CREDENTIALS 6-1
6.3 OBTAINING CONSENT TO INSPECT 6-3
6.4 WITHDRAWAL OF CONSENT 6-4
7. WARRANTS 7-1
7.1 REASONS FOR ISSUING A WARRANT 7-1
7.2 TYPES OF WARRANTS 7-2
7.3 REASONS TO SEEK WARRANT IN ADVANCE 7-2
7.4 OBTAINING THE WARRANT 7-3
7.5 CRIMINAL SEARCH WARRANT 7-4
7.6 BURDEN OF PROOF 7-6
8. GATHERING AND PRESERVING EVIDENCE 8-1
8.1 SAMPLE RESULTS AS EVIDENCE 8-1
8.2 PHOTOGRAPHS 8-2
9. BASIS FOR TESTIMONY •< 9-1
ill
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H/83*-485-02a/tl3
*
NPDBS Compliance Monitoring Inspector Trainings LEGAL ISSUES
TABLE OF CONTENTS (Continued)
Pag*
10. PRESENTING EVIDENCE FROH INSPECTIONS 10-1
10.1 ADM1SSIBILITY OP EVIDENCE 10-1
10.2 OFFICIAL DOCUMENTS 10-1
10.3 SERVING AS A WITNESS 10-2
11. LIABILITIES *. 11-1
12. SUMMARY. 12-1
APPENDICES
APPENDIX A - SECTIONS OF THE CLEAN WATER ACT RELEVANT TO NPDES INSPECTORS
APPENDIX B - CRITERIA FOR NEUTRAL SELECTION OP NPDES COMPLIANCE INSPECTION
CANDIDATES
APPENDIX C - SAMPLE 308 LETTER
APPENDIX D - EPA MEMORANDA ON ENTRY PROCEDURES
APPENDIX & - EXAMPLE WARRANT INCLUDING UNDERLYING AFFADAVIT
APPENDIX F - REVIEW QUESTIONS AND ANSWERS ON LEGAL ISSUES
LIST OF TABLES
Table Page
6-1 "STEPS FOR ENTERING A FACILITY 6-2
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United States Enforcement Division
Environmental Protection Office of Water Enforcement and Permits
Agency Washington, DC 20460 August 1988
NPDES Compliance
Monitoring Inspector
Training *
Sampling Procedures
-------
-------
NPDES Compliance Monitoring Inspector Training: SAMPLING PROCEDURES
TABLE OF CONTENTS
Page
FOREWORD i
1. INTRODUCTION l-l
1.1 OVERVIEW OF THE NPDES PROGRAM 1-i
1 2 PURPOSE OF THE NPDES COMPLIANCE MONITORING PROGRAM. ... 1-2
1 3 OBJECTIVES OF NPDES SAMPLING . 1-3
14 SAMPLING TASKS.. . 1-3
2 SAMPLE COLLECTION 2-1
2.1 IMPORTANCE OF -AMPLE COLLECTION 2-1
2.2 SAMPLING PLA,' 2-2
2.3 PREPARATION « SAMPLING.. . 2-*
24 SAMPLING SAFE' 2-5
2 5 SAMPLING LOG- )N 2-5
:.6 SELECTION AND REPARATION OF SAMPLE CONTAINERS. . . :-'
: 7 SAMPLE TYPES .. . . 2-10
: 8 SAMPLE COLLECTION TECHNIQUES, ... . . 2-13
Z.3 SAMPLE VOLUME 2-17
2 10 SAMPLE PRESERVATION AND HOLDING TIMES . .. 2-13
: 11 SAMPLE DOCUMENTATION . . . . 2-19
C 12 SAMPLE IDENTIFICATION AND LABELING 2-21
2 13 SAMPLE PACKAGING AND SHIPPING 2-21
2.14 SPECIAL SAMPLING REQUIREMENTS 2-22
3 ANALYTICAL METHODS FOR ONSITE ANALYSIS 3-1
A AUTOMATIC SAMPLERS 4-1
5 FLOW MEASUREMENT 5-1
5.1 IMPORTANCE OF FLOW MEASUREMENT 5-1
5.2 OPEN CHANNEL FLOW 5-1
5.3 CLOSED CHANNEL FLOW 5-8
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MPOBS Compliance Monitoring Inspector Training: SAMPLING PROCEDURES
TABLE OF CONTENTS (Continued)
Page
6. QUALITY ASSURANCE/QUALITY CONTROL 6-1
6.1 QUALITY CONTROL PROCEDURES FOR SAMPLING 6-1
6.2 QUALITY ASSURANCE PROCEDURES FOlh-SAMPLING 6-2
6.3 LABORATORY QUALITY ASSURANCE/QUALITY CONTROL 6-4
7. CHAIN-OF-CUSTODY PROCEDURES 7-1
8. SUMMARY 8-1
•
APPENDICES
APPENDIX A - GLOSSARY
APPENDIX B - REFERENCES
APPENDIX C - REVIEW QUESTIONS AND ANSVERS ON NPOES SAMPLING PROCEDURES
APPENDIX D - VOLUME OF SAMPLE REQUIRED FOR DETERMINATION OF THE VARIOUS
CONSTITUENTS OF INDUSTRIAL WASTEVATER
APPENDIX E - REQUIRED CONTAINERS, PRESERVATION TECHNIQUES, HOLDING TIMES, AND
TEST METHODS
APPENDIX F - EPA ORDER 1440.2 - HEALTH AND SAFETY REQUIREMENTS FOR EMPLOYEES
ENGAGED IN FIELD ACTIVITIES
APPENDIX G - LIST OF FIELD SAMPLING EQUIPMENT
APPENDIX H - SAMPLE IDENTIFICATION LABELS
APPENDIX I - CRITERIA FOR SELECTION OF AUTOMATIC SAMPLING EQUIPMENT
APPENDIX J - QUALITY CONTROL PROCEDURES FOR FIELD ANALYSIS AND EQUIPMENT
APPENDIX K - EXAMPLE RECORD OP FIELD SAMPLE DATA AND CHAIN-OF-CUSTODY RECORD
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NPDES Compliance Monitoring Inspector Training: SAMPLING PROCEDURES
LIST OF FIGURES AND TABLES
Figure
5-1
5-2
5-3
5-4
5-5
Table
2-1
PROFILE AND NOMENCLATURE OF SHARP -CRESTED UEIRS
THREE COMMON TYPES OF SHARP-CRESTED VEIRS
DIMENSIONS AND CAPACITIES OF THE PARSHALL MEASURING FLUMES
FOR VARIOUS THROAT WIDTHS
CONFIGURATION AND NOMENCLATURE OF VENTURI METER
ELECTROMAGNETIC FLOV METER
COMPOSITING METHODS
Page
5-3
5-4
5-6
5-9
5-10
Page
2-14
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-------
United States Office of Water Enforcement and Permits
Environmental Protection Office of Water
Agency Washington, DC 20460 September 1988
NPDES Compliance
Monitoring Inspector
Training
Laboratory Analysis
-------
-------
NPDBS Compliance Monitoring Inspector Training: LABORATORY ANALYSIS
TABLE OF CONTENTS
Page
FOREWORD v
1. INTRODUCTION 1-1
1.1 OVERVIEW OF THE NPDES PROGRAM 1-1
1.2 PURPOSE OF THE NPDES COMPLIANCE MONITORING PROGRAM... 1-2
2. PERFORMANCE AUDIT INSPECTION 2-1
2.1 PREINSPECTION PLANNING 2-1
2.2 INITIAL MEETING 2-5
2.3 LABORATORY QA/QC PROGRAM 2-8
2.4 SAMPLING TECHNIQUES 2-14
2.5 LABORATORY SAMPLE CONTROL 2-15
2.6 ANALYTICAL METHODS 2-18
2.7 EVALUATION OF LABORATORY QA/QC PROGRAMS 2-22
2.8 LABORATORY FACILITIES AND EQUIPMENT 2-32
2.9 RECORDS AND REPORTS REVIEW 2-49
2.10 EXIT MEETING AND FINAL REPORT 2-51
3. COMPLIANCE EVALUATION INSPECTION 3-1
3.1 RECORDS AND REPORTS REVIEW 3-1
3.2 REVIEW OF SELF-MONITORING DATA, PROCEDURES, AND
LABORATORY FACILITIES 3-2
4. SUMMARY 4-1
111
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MPOBS Compliance Monitoring Inspector Training: LABORATORY ANALYSIS
*
APPENDICES
APPENDIX A - REFERENCES
APPENDIX B - GLOSSARY
APPENDIX C - APPROVED METHODS
APPENDIX D - SAMPLE CONTROL FORH
APPENDIX E - FORH FOR ASSESSING RELEVANT ANALYTICAL METHODS
APPENDIX F - METHODS CHECKLISTS
APPENDIX G - POTENTIAL PROBLEM AREAS ASSOCIATED WITH POLLUTANT ANALYSIS
APPENDIX H - LABORATORY SERVICES
APPENDIX I - EXAMPLE OP BENCH SHEET
APPENDIX J - REVIEW QUESTIONS AND ANSVERS
LIST OF FIGURES AND TABLES
Figure
Page
2-1
2-2
2-3
2-4
PRECISION AND ACCURACY
EXAMPLE CONTROL CHART
EPA DEFICIENCY NOTICE FORM
NPDES COMPLIANCE INSPECTION REPORT FORM
2-24
2-27
2-53
2-54
Table
2-1
2-2
QA QUESTIONS
ANALYSIS OP TOT
AL PHOSPHATE- PHOSPHORUS STANDARDS
Page
2-10
2-28
-------
United States Office of Water Enforcement and Permits
Environmental Protection Office of Water
Agency Washington, DC 20460 August 1988
NPDES Compliance
Monitoring Inspector
Training
Biomonitoring
-------
-------
NFEBS Compliance Monitoring Inspector Training Module: BIOMONITORING
TABLE OF CONTENTS
Pag*
FOREWORD vi
1. INTRODUCTION 1-1
1.1 OVERVIEW OF THE NPOES PROGRAM l-l
1.2 CONCEPT OF TOXICITY 1-2
1.3 TOXICITY TESTING IN THE NPDES COMPLIANCE
MONITORING PROGRAM 1-4
2. BASICS OF TOXICITY TESTING 2-1
2.1 TOXICITY TEST DESIGN 2-1
2.2 ACUTE AND CHRONIC TESTS 2-3
2.3 PLOW-THROUGH, STATIC RENEWAL, AND STATIC TESTS 2-4
2.4 ANALYSIS OF TEST RESULTS 2-3
3. TOXICITY TEST COMPONENTS 3-1
3.1 EFFLUENT 3-3
3.2 DILUTION WATER 3-4
3.3 TEST SYSTEM 3-4
3.4 TEST ORGANISMS 3-4
3.5 TEST RESULTS 3-5
3.6 ' SUMMARY 3-6
4. EFFLUENT 4-1
4.1 SAMPLING STRATEGIES 4-1
4.2 SAMPLE STORAGS AND PRESERVATION 4-3
5. DILUTION WATER 5-1
5.1 SOURCES OP DILUTION WATER 5-1
5.2 STORAGE CONDITIONS AND HOLDING TIMES 5-2
6. TEST ORGANISMS 6-1
6.1 SPECIES USED 6-1
6.2 SOURCES OF TEST ORGANISMS 6-5
6.3 ACCLIMATION AND FEEDING 6-6
6.4 DISEASE 6-7
6.5 LOADING RATES. 6-7
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NF1XS Coaplianc* Monitoring Inap«ctor Training Modules BIOMONTTORING
TABLE OF CONTENTS (Continued)
7.
8
TEST SYSTEM
7.1 MATERIALS USED
7 . 2 CLEANING
7.3 TEST CONDITIONS
TEST RESULTS
8.1 CONTROL SURVIVAL
8.2 RESULTS CALCULATIONS
*n
7 «
8-1
8-1
APPENDICES
APPENDIX A - QUESTIONS AND ANSWERS ON THE BIOHONITORING MODULE
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NPWS Compliance Monitoring Inspector Training Module! BIOMOWTTORING
LIST OF FIGURES AND TABLES
Figure Page
2-1
2-2
3-1
TYPICAL EFFLUENT CONCENTRATIONS USED IN TESTING
TYPICAL TOXICITY TEST RESULTS SHOVING DESCRIPTIVE
STATISTICS CALCULATED USING THE RESULTS
RELATIONSHIPS BETWEEN TOXICITY TESTING COMPONENTS,
SHOVING IMPORTANT FACTORS FOR EACH
2-2
i
2-6
3-2
Table Page
'4.1 RECOMMENDED SAMPLING STRATEGY FOR CONTINUOUS AND
INTERMITTENT DISCHARGES FOR FLOV-THROUCH, STATIC
RENEVAL, AND STATIC TOXICITY TESTS 4-2
6-1 FRESHVATIR SPECIES FOR VHICR THERE ARE ACUTE TOXICITY
TESTING PROTOCOLS 6-2
6-2 MARINE AND ESTUARINE SPECIES FOR VHICH THERE ARE
ACUTE TOXICITY TESTING PROTOCOLS 6-3
6-3 SPECIES FOR VHICH THERE ARE CHRONIC TOXICITY TESTING
PROTOCOLS, ORGANIZED BY SPECIES 6-4
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-------
II.B.6,
"NPDES Compliance Evaluation Inspection Manual", dated January 1981. Table
of Contents only.
-------
-------
•^tCi -
United Stales
Environmental Protection
Aqenev
Office of Water Enforcement
Enforcement Division (EN 338)
Washington DC 20460
January 1981
Water
Compliance Evaluation
Inspection Manual
MOD — 75
-------
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WPWJS COMPLIANCE EVALUATION INSPECTION MANUAL
TABLE OF CONTENTS
PAGE
,1 RODUCTION 1
ADMINISTRATION
I. work Lthics 1-1
II. Disclosure of Official Information 1-5
III. Diaries and Field Notes 1-8
PREPARATION FOR INSPECTION
I. General 2-1
II. Objectives 2-1
III. Inspector's Responsibility 2-2
IV. Preinspection Techniques 2-2
V. Compliance Files 2-4
VI. Types of Compliance Inspections 2-11
i. TREATMENT FACILITY REVIEW
I. Authority 3-1
II. General 3-2
III. Objectives 3-3
IV. Inspector's Obligation 3-4
V. Inspection Procedures 3-t
VI. Post-Inspection Discussion with Management 3-15
RECORDS AND REPORTS REVIEW
I. Authority 4-1
II. General 4-1
III. Objectives 4-2
IV. Inspection Procedures 4-3
COMPLIANCE SCHEDULE STATUS REVIEW
I. Authority 5-1
II. General 5-1
III. Objectives 5-2
IV. Inspection Procedures 5-2
SELF-MONITORING PROGRAM REVIEW
I. Authority 6-1
II. Objectives 6-1
III. Inspection Procedures 6-2
IV. Quality Assurance 6-10
INSPECTIONS
I. Author lt> 7-1
II. Inspector's Responsibility 7-3
III. Inspection Procedures 7-4
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8. SPECIAL CONSIDERATIONS AND TECHNIQUES
I. Citizen Complaint Investigations 8-1
II. Photographs 8-3
III. Best Management Practices 8-8
IV. Spill Prevention Control and
Countermeasure Plan 8-12
V. Interagency Regulatory Liaison
Group Reterral Inspection Program 8-12
9. FLDEhAL AND STATE COOPERATION
I. Authority 9-1
II. Objectives 9-1
III. Policy 9-2
10. SAFETY
I. General 10-1
II. Safety Equipment 10-2
III. Safety Precautions 10-3
IV. Hazardous vaste Disposal Sites 10-4
11. ACCESS AND WARRANTS
I. General 11-1
II. Objectives 11-3
III. Unreasonable Search and Seizure 11-4
IV. Neutral Inspection Scheme 11-4
V. Right of Lntry 11-6
VI. Privilege Against Selt-lncrimination 11-1
12. COMPLIANCE IWSPLCTION REPORT
I. General 12-1
II. Objectives 12-1
III. Procedures 12-2
IV. Abbreviated Narrative Reports 12-12
V. Deficiency Notice 12-13
REFERENCES
SEC'lION REFERENCES
APPENDICES
k
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II.B.7.
"Neutral Inspection Plan for the NPDES Program", dated February 17, 1981,
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-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON C C 20460
I J«
OF-.CS OF
MEMORANDUM
SUBJECT: Neutral Inspection Plan
ne NPDES _Pj^»
FROM: Edward A. Kurent
Director, Enforcement^fri'^is'ion
TO: Regional Enforcement Division Directors
Regional S&A Division Directors
Director, NEIC
Attached is the final Neutral Inspection Plan wnich was
developed for the NFDES Compliance inspection Program. This plan
fulfills the requirements for performing neutral compliance inspec-
tions based on the Marshall v Barlow's, Inc. ruling. The Neutral
Inspection Plan must be"used to target all inspections which are
not based on some type of probaole cause. Copies of this plan were
discriouted to eacn Region last year for comments.
The selection of candidates for neutral inspections eacr. year
will be oased on only two factors? the lengtn of time since tne
last inspection and geographic grouping (to minimize the use of
resources). The initial selection process will be done by computer
using the Permit Compliance System (PCS). Selecting specific per-
mittees for inspections will then be based on common geographic
areas. For example, a permittee with a low, priority for inspection
may be chosen if it is in close physical proximity to a permittee
with a very high priority for inspection.
This plan will not be used to target all NPDES compliance
inspections, only those based on administrative factors. We expect
that the portion of inspections which are not based on some form of
civil probable cause (DMR data, citizen complaints} will be very
small. Indeed, some Regions plan £.11 their inspections oased on
probable cause for violations^ In these cases, no Neutral Inspec-
tion Plan would be needed. Smilariy, some Regions (along with tne
States) are aole to inspect each ma^or permittee once a year. Sines
this Neutral Inspection"Plan is based on annual planning, it would
not be needed in"these cases.
-------
Several Regions commented tnat the significance of tne v.
discharger should be a factor. Since this plan will oe applied
orly to raa^or permittees, «e oeiieve tr.is issue is basically
addressed. In" addition, wnen tne new tracer/minor designation sys-
tem is complete, PCS will oe able to use potential for a permittee
to discaarce toxics as a factor in tne neutral inspection process.
Without tnis information in PCS, it would be necessary to perform
a review of every ma^or permittee to determine the toxics discharge
potential. This would place an unreasonaale ourden on Regional
enforcement programs.
If you have any questions or comments on this plan, please
contact me or Brian Maas of the Enforcement Division staff at
755-0994.
Attachment
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CRITERIA FOR NEUTRAL SELECTION OF
NPDSS COMPLIANCE INSPECTION CANDIDATES
BACKGROUND
In response zo the recent Supreme Court decision in
Marshall v. Barlow's Inc., 436 U.S. 307 (1978), the Agency
is developing neutral inspection critaria to be used wnei
targeting compliance inspections. The purpose of using the
neutrs.1 inspection plan is to eliminate any bias in choosing
candidates for compliance inspections.
Under the National Pollutant Discharge Elimination
System (KPDES) authorized by Section 402(a)(l) of tne Clean
Water Act, over 50,000 permits have been iss'ued for the dis-
charge of pollutants. Of these issued permits, about 8,000
have been classified by EPA or states with NPDES authority
as major permittees. The designation of a permittee as
"raa^or" is based on quantity and potential environmental
impact of the wastewater source.
EPA's program to monitor compliance with the terms and
conditions of issued NPDES permits is primarily designed to
ensure the compliance of the ma^or permittees. EPA has not
been provided with sufficient resources to routinely monits:
the compliance of the remaining minor permittees.
Compliance inspections performed under the NPDES pro-
gram can be divided into two general categories: 1} those
-------
2
inspections based on administrative factors; and 2) tnose
inspections based on specific evidence of an existing
violation, e.g. civil probable cause.
Inspections based on the second category are noz
neutral since tney are based on prior knowledge of apparent
or prooaale permit violations. Factors which constitute
specific evidence include: 1) violations reported on recent
DM51s; 2} citizen complaints; 3) response to emergency
situations, sucn as threats to puolic health or safety;
4) follow-up to previous inspections which indicated
violations; and 5) specific enforcement case support.
For targeting inspections which rely strictly on
administrative factors, the Agency has developed the
following neutral inspection plan.
3. UNIVERSE OP NPDES INSPECTION CANDIDATES
The EPA, upon the presentation of credentials, has the
authority to enter and inspect all NPDES permitted facilities
at any tune regardless of other factors such as "na^or" or
"minor" designations. Because of limited resources, not all
facilities are targeted for inspections each year. The
frequency with which compliance inspections are performed
is based on the discharger's environmental significance,
available resources, the types and mix of inspections being
employed, climatic and geographical influences or inspection
logistics, and other factors influencing compliance -nonitor-
y
ing such as the aoility to follov. yp on inspection findings..
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3
C. BASIC SELECTION CRITERIA
When targeting permittees cf neutral compliance
inspections, the time that has passed since the last inspec-
tion, a^d the geographical grouping of the permittees are tr.e
only factors wnich may be considered. Other information, sucr.
v-2 r-~" ^
as data from DMR's wnicn indicated apcarent violations/ woulc
A
not be used since this would constitute probable cause under
the civil standard. However, the existence of such data would
not preclude the facility from being considered for a neutral
inspection if this neutral plan is followed during the
selection process.
The only permittees who would not be considered wnen
targeting neutral compliance inspections are permittees who
are in current litigation v.ith EPA. This does not apply to
state litigation.
D. NEUTRAL COMPLIANCE INSPECTIONS
To target inspections based on a neutral inspection plan,
Regions will first determine the length of time that has
passed since the last EPA or state inspection for all ma^or
permittees. This can be done easily using the capabilities
of the Permit Compliance System (PCS) availaole in each Z?A
Regional Office. A PCS report can be generated wnich will
print out each ma^or permittee in order oy the date of the
last inspection. Appendix A contains a sample list which
the PCS Systetv can generate. A separate report snould be
-------
4
generated for eacr. state in the Region. In soife cases, it
-.ay oe appropriate to use suodistricts (by county) of a state
defending cr. the organizational structure in a specific state
or Region. The permittees wnien are nignest on the list
(greatest time since last inspection) will nave the highest
priority for neutral inspections.
In order to ;niriiiT.ize use of Agency resources, inspection
targeting should be based on both the priority list and
geographical grouping. For example, any permittee on the list
may be targeted for an inspection if it is in close physical
proximity to a facility which is very high on tne list. This
is extremely important as it allows the roost efficient use of
the li.ii.ted inspection resources. The PCS System can give t-
names and most recent inspection dates for ail permittees
wnich are in the same county as a permittee which is selected
for an inspection.
The priority list will identify only those facilities
which are possible targets for compliance inspections during
the current fiscal year. The exact timing of these inspec-
tions during the fiscal year *iil be at the discretion of
tne Regional Office, based on logistics aid specific Regional
needs.
The list of permittees targeted for inspections may be
amended at any time during the fiscal year. Similarly, before
tne start of a new fiscal year, Regional Offices should
-------
reassess all r-2-~-*"e*s resarcless cf w.etner all prev.cus...
targeted inspections j.ave oee1* completed for tre current
fiscal year.
INSTRUCTIONS ?OK TARGETING INSPECTIONS 3ASED ON THE P01HT
ASSESSMENT SYSTEJ1
To use tr.e neutral inspection plan, Regional Offices will
first determine the percentage of inspection resources that
will be devoted to neutral administrative inspections. This
will depend, to a large extent, on tr.e ongoing enforcement
case load and tae percentage of ma^or permittees which have
probable violations of effluent limitations and compliance
•
schedules. For example, a Region may allocate the following
resources for neutral inspection activities:
a) 10% of the Coniplj.ar.ee Sampling Inspection resources,
a) 25% of the Performance Audit Inspection resources;
and
c) 50% of the Compliance Evaluation Inspection
resources.
The remaining Regional inspection resources would be
reserved for inspections oased on probable cause and specific
enforcement case support.
The Region should next determine the approximate number
of neutral inspections that can be completed using the
resources allocated for each inspection type (CSI, CEI, ?AI).
This numoer will be flexible depending on the type and/or the
number of outfalls and size of tne cermitted facilitv.
-------
For each scats, starting uith the permittees highest on
tne list, proceed co»/ri tne priority list until asout one tr.irc
of trie neutral -nspection resources for that state nave been
allocated. For example, if the allocated inspection resources
for neutral inspections An a particular state are enough for
30 inspections, approximately the first 10 permittees on the
priority list would oe targeted. The Region should then use
the remaining 20 inspections for permittees which are grouped
«ith tne already targeted candidates based on common geographi-
cal and/or special technical considerations. For example, a
Region may target a sampling inspection at a facility with a
nign point rating, and then target several more sampling'
inspections, CEI's or PAI's in the same geographic area. This
would allow all these inspections to be done on one inspects
trip.
Regions may target inspections to single facilites at
tuaes, such as when the facility is in close proximity to
Regional Offices or Field Offices.
A specific percentage of inspection resources are set
aside each fiscal year for enforcement case support activi-
ties and emergency response. By the last quarter of the
fiscal year, Regions should know to what extent these
set-aside resources will be available for routine inspections.
To the extent that these resources become available, tney
should be utilized to inspect the remaining permittees on the
priority list.
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ix
T.ue following t»o pages are saT,pie printouts fro.? tr.e Ferai:
Compliance Systea (PCS) for tr.e State of New Jersey, Printout I
cx»es a partial listirg of saajor KPDSS facilities ir. order by tns
date cf tne lasz inspection. Permittees with no date listed for
ir.spectiors have not had an inspection wnich was noted in PCS.
These pemittees will have tne hicnest priority for neutral
inspections .
Printout 2 is a list cf permittees and inspection dates by
county ( for New jersey) . This Printout is used to identify per-
mittees wfcicn may be in close physical proximity to facilities
*
which were chosen for inspections front printout 1.
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it 2
ALL
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lUtllLIO'i II'P IUIA
Cllf OF CGG MAflOOII
10 Ml OF tlAiUKMIO'l
OUCHA BOROUGH HUA
SCIENItFIC CHEHICAL PROCESSING
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II.B.8.
"NPDES INSPECTION STRATEGY AND GUIDANCE FOR PREPARING ANNUAL STATE/EPA
COMPLIANCE INSPECTION PLANS", dated April 1985 with transmittal dated April
16, 1985.
3,9
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-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, 0 C 20460
APR 16
OFFICE OF
WATER
MEMORANDUM
SUBJECT: Transmittal of the Final NPDES Inspection Strategy
and Gaiaance for Preparing Annual State/EPA Compliance
Inspection Plans
FROM: Rebecca W. Hanmer, Director
Office of Water Enforcement and Permits (EN-335)
TO: Regional Water Management Division Directors
Regional Environmental Services Division Directors
State Program Directors
Attached are the final NPDES Inspection Strategy and the
Guidance for Preparing Annual State/EPA Compliance Inspection Plans.
The Strategy and Guidance were developed during December 1984 with
the assistance of a workgroup composed of representatives from six
EPA Regions and two States, and the EPA Headquarters Offices of
Water Enforcement and Permits, and Enforcement and Compliance
Monitoring. In January 1985 the Strategy and Guidance were sent to
EPA Regions and to all States through the Association of State and
Interstate Water Pollution Control Administrators (ASIWPCA). Comments
were received from nine EPA Regions and four States. In addition,
the Inspection Strategy and Guidance were discussed briefly at the
ASIWPCA meeting in Washington, D.C., February 1985. The resulting
documents reflect those discussions as well as EPA Regional and
State comments.
The comments were helpful in focusing on specific areas where
clarification was needed. We believe we have accomplished our common
goal of producing an overall national structure for NPDES inspection
programs, which will serve as a model for EPA Regions and States
during implementation.
The Inspection Strategy deals with issues such as inspection
priorities, inspection mix, inspection report timeliness and
reporting forms, and State/EPA relationships. The Guidance for
Preparing Annual State/EPA Compliance Inspection Plans, along with
the Strategy, are being transmitted" to Regions in time for the
FY 1986 planning cycle and should be used as a general guide and
framework for planning the annual inspection programs in each State.
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- 2 -
These documents should be used in conjunction with the Agency Annual
Operating Guidance and the Annual Guidance for Oversight of NPDES
Programs. The Inspection strategy and Guidance will eventually be
incorporated into the new Enforcement Management System Guide which
is presently being revised by an EPA Region/State workgroup.
Some additional language on pretreatment has been added to
the Inspection Strategy in response to the final Pretreatment
Implementation and Review Task Force Deport. However, at present
the Inspection Strategy and Guidance do not contain detailed
information on pretreatment and sludge inspections. Information
on pretreatment will be provided later in specific guidance and
in the Strategic Planning and Management System.
If you have any questions on the 'Inspection Strategy or
Guidance, please contact David Lyons, Chief, Enforcement Support
Branch, Enforcement Division (FTS or 202/475-8310).
Attachment
-------
Uni'ea 5f"«?s
Environmental Protection
Agency
Off re of Water
Enforcement ana Permits (EN 323)
Washington DC 20460 ,,
NPDES INSPECTION1 STRATFGY
and
GUIDANCE FOR PREPARING ANNUAL
STATE/EPA COMPLIANCE INSPECTION
PLAN'S
Office of Water Enforcement and Permits
April 1985
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Highlights
NPDES Inspection Strategy
and
Gjidance for Preparing State/EPA
Compliance Inspection Plans
NPDES Inspection strategy
The Inspection Strategy is divided into five main sections:
Background, Inspection Coverage, Mix of Inspections, Reporting,
and EPA/State Relationships.
Background
0 Explains that both EPA and the State share responsibility for
developing and carrying out the NPDES Compliance Inspection
Programs.
* Sets out the major purposes of these inspections which are to:
satisfy the regulations, verify permittee compliance, develop
enforcement information, improve permittee performance, improve
data quality assurance, provide State overview, respond to
citizen complaints and water quality problems, support permit
development, and maintain regulatory presence.
Inspection Coverage
0 Explains what types of Inspections make up the total NPDES
Inspection scheme, including the Reconnaissance Inspection.
0 States that all major NPDES permittees should be inspected at
least once a year by EPA or the State.
0 Expands coverage of major POTW inspections to include a
pretreatment component where the POTW has an approved program.
0 Establishes inspection priorities of (1) Inspections to respond to
emergency circumstances and public health problems; (2) Inspection
to support enforcement and potential enforcement actions; (3)
Inspections to support development of major permits; and (4)
Routine compliance monitoring inspections.
Mix of Inspections by Type
0 Makes it clear that the mix of inspections within each state
will be tailored to the needs in each State.
0 Establishes the idea that a core capability will be maintained
for conducting each type of inspection within the geographic
boundaries of each State, and that EPA and State should work to
eliminate unnecessary redundancies.
-------
11
Renorting
0 Describes how inspection data should be reported to EPA and
how the results of the inspections should be reported.
0 Makes it clear that the inspection reports are complete when they
contain all necessary supoorting data and have been signed by the
reviewer.
0 Establishes the fact that the Form 3S60-3 must be filled out in
order for the inspection to be entered into PCS (except when a
State enters data directly to PCS) and in order to receive credit
in SPMS. Timeliness criteria are established for completion of
reports and entering data into PCS.
SPA State Relationships
0 Makes it clear that the Annual Inspection Plan should be part of
the Annual S106 grant agreement or the State/EPA agreement.
0 Sets out the concept of joint planning using the Annual State/EPA
Inspection Plan.
Guidance for State EPA Compliance Inspection Plans
The following are the major categories of the Guidance:
Background
0 Explains that a 1983 evaluation showed the State/EPA planning
documents lacked specific details needed to coordinate inspection
activities, to manage resources, and avoid duplication.
0 States that the Annual Inspection Plans are developed to
correct these problems.
Purpose of the Plan
0 To provide a basis for achieving National NPDES goals, and
to coordinate and improve use of the compliance inspection
resources.
Content of Plan
0 Includes such specific items as workload projections, number
and mix of inspections, criteria for selecting inspection
candidates and procedures and timeframes for inspection reports
and data entry.
'-',
-------
Ill
Approval of Plan
0 Plan is to be signed by the state and Pegional program directors.
Imolenentina the nlan
0 Establishes that the Region will normally provide prior notice
to the state before conducting independent inspections, and
States will be apprised of major inspection proole^s as soon
as they are discovered.
Evaluation of the Results
0 The plan should contain procedures for the ongoing evaluation
of a state inspection program through such means as~ periodic
rando-n audits of inspection reports and case files.
0 The level and frequency of the State inspection program evaluation
should be tailored to the State's overall performance in the
inspection program.
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I
Introduct ion
For FY 1985 the Office of Water Enforcpment and Permits (OWE?)
established as a major goal the completion of an NPDE^ Inspection
Strategy, and the Guidance for Si-ate/SP^ Inspection Plans. The
Inspection Strategy is designed to describe how OWE*> and the Regional
Offices address questions on who, when and how to inspect. It
addresses such issues as mix of inspections, coverage, EPVState
relationships and reporting on inspections.
The Guidance for Preparing Annual State/EPA Ccnoliance Irsoection
Dlans resulted from the FY 1983 OWEP evaluation of EP* inspection
programs, which showed that the then current documents such as
grant agreements lacked specific detail needed to coordinate
inspections, manage resources and avoid duplication. The results
of the evaluation included a recommendation to prepare annual
EPA/State Compliance Inspection Plans. The Guidance for State/EPA
Inspection Plans discusses how to go about preparing those Plans.
The Inspection Strategy and the Guidance for Preparing Annual
State/EPA Compliance Inspection Plans are the major documents
on managing the Inspection Program. Earlier OWEP documents dealing
with program operations, strategies and memoranda are superseded
by these two documents. Guidance that should be used in conjunction
with the two above cited documents for program management include
but are not limited to:
8 Annual EPA Operating Guidance,
0 Annual Strategic Planning and Management System documents,
0 Annual OWEP Guidance for Oversight of NPDE^ Programs,
0 Annual Workload Model for Water Ouality Enforcement,
* Enforcement Management System, as revised, and
0 NPDES Neutral Inspection Plan (2-17-81).
Manuals describing procedures for conducting inspections are
found as Item A in the Appendix.
It should be noted that the NPDES Inspection Strategy and Guidance
provide information primarily on the NPDES inspection program,
and do not address many special concerns of the pretreatment and
sludge programs. These concerns will be addressed in supplements
to this document which will be issued within the next year.
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NPDES INSPFCTION STRATEGY
Background and Purpose
NPDES Compliance Insoections are a vital tool in implementing the
NPDES Program. There is a ten-year history of NPDES inspection*
oeing conducted by E?^ (and State) inspectors in VPDPS as well as
non-NPDFS states. state Inspection programs have been funced
through the Clean Water Act 5106 grants to States, This strategy
attempts to restate, amplify and clarify the current approach
Regions and States should he using to imple-nent the .^PO£S inspection
program. This Strategy should bs used as a fraTi^ork for Regional
and State managers in developing a State-soecific inspection program,
and applies to both approved NPDES States and unaoprovea States.
EPVs primary role with respect to each State's inspection program,
regardless of approval status, will be to: provide enforcement support;
overview State inspection programs to ensure they are consistent *uth
national guidance manuals; provide quality assurance, technical
assistance and training; and augment State routine compliance
inspection programs.
The EPA, and States are responsible for developing and carrying out
inspection programs for NPDES Compliance Monitoring in each State.
The programs for each State follow a lead agency concept: States
have lead responsibility, when their NPDES programs are approvedr
and EPA has responsibility in non-NPDES States. These programs
serve many purposes. Some of the most important of these are to:
0 Verify permittee compliance
verify self-monitoring information submitted
verify adequacy of pretreatment programs
0 Satisfy the regulations which require inspections of
all majors once a year
0 Develop enforcement information
0 Improve permittee performance
provide technical information and assistance
improve data quality (follow-up to Discharge Monitoring
Report - Quality Assurance (nMR-OAM
0 Provide State overview
0 Respond to citizen complaints
0 Respond to water quality problems
0 Support permit development
0 Maintain regulatory presence
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^z
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Coverage
The NPD5S Regulations at 40 CFR l?3.26(eH5) require States which
administer the NPDES program to have procedures and abilities for
inspecting all major discnargers (permittees) at least annually.
As a matter of policv, all major NPDFS permtrees shall be inspected
annually by a combination of Regional ard state effort.
The annual inspection requirement "iay bo satisfied by using any of
the stanaard compliance inspection protocols described in the Appencix,
IteTi B. Each State Inspection Drograti will continue to provide
comprehensive inspections, but at the discretion of the Region or
State, the Reconnaissance Insnection (Rl) will be recognized as an
integral part of each State's total inspection mix. The_RIs may be
used on a selective basis to satisfy the coverage requirement, but
may not be used for any major permittees in the following categories:
0 a facility that has been in significant non-compliance in
any of the previous four quarters,
8 a facility in a primary industrial category as defined in
40 CFR 122 Appendix A, or
0 a facility to which pretreatment requirements apply.
The purpose of allowing RIs to be used to satisfy the routine
compliance inspection coverage requirements for major facilities is
to focus more intensive insoections on problem facilities. It would
be most appropriate to allow an RI to satisfy the coverage requirement
when the facility is subject to frequent visits and its operational
characteristics are well known to the permitting authority. It would
be generally inappropriate to use an RI to satisfy the annual coverage
requirement for a major facility in two successive years. It should
also be noted that if. the results of an RI indicate significant
problems in a facility's operations or discharge, the problems will
be addressed as soon as possible by conducting a more comprehensive
inspection or other followup action.
In each State, inspection coverage will address the following
priorities, which are arranged from the more important to the less
important (there will also be amplification in each year's Annual
Operating Guidance):
0 Inspections to respond to emergency circumstances and
public health problems.
0 Inspections to support enforcement and potential enforcement
actions.
o
Inspections to verify data quality, to follow up on
Discharge Monitoring Report — Quality Assurance (DMR OA)
-------
- 4 -
0 Inspections to support development of raa3or permits. !•
j*
0 Routine compliance monitoring inspections with all major
facilities covered first, minor PL92-500 facilities,2 then
other minor facilities including those covered by general
pertu ts.
NPDE5 Inspection plans for major POT'.-'s which have approved pretreafent
prograis will neec* to be exnanded to cover imnlenpntation of these
programs. Generally, it will be most cost-effective to combine
the permit effluent Imit compliance and pretreatnent inspections.
This inspection activity should begin as soon as possible; however,
botr. the scooe of the inspection and. coverage of approved POTW
programs will have to be phased in during FY 1985 - 1986 taking
into account availability of resources, timing and availability of
pret-reatment audits and awareness of problems. (More detailed
guidance on pretreatnent inspection procedures will be forthcoming,
as a supplement to this Strategy and the Compliance Inspection
Manual.)
The number of joint EPA-State inspections and the number of EPA and
State independent inspections will be negotiated between the EPA
Region and the State, and included as part of the State/EPA Annual
Inspection Plan. Each Region of EPA will maintain an independent
inspection program to carry out its enforcement and overview
responsibilities. The Region will normally provide prior notice
to the "State before conducting independent inspections. The only
limited exception would be where investigative inspections would
be jeopardized by the prior notice.
The coverage to satisfy the total inspection need in a state will
be a responsibility that is shared by both the Region and State.
However, direction is provided by the lead agency. In NPDES States,
the State should take the lead in operating the inspection program
(with EPA maintaining an independent inspection effort as noted
above). In non-NPDES States, EPA has the lead responsibility for
operating the inspection program.
This should be limited to situations where the applicant's data
gathering techniques are a matter of contention and all other
options for acquiring the information have been exhausted.
Regional Offices will provide limited inspection coverage for
minor permittees. Specific coverage will be negotiated with
States as part of the Annual State Inspection Plans.
Routine inspections are also known as neutral inspections as
opposed to "for cause" inspections described in the first two
priorities. This distinction resulted from the decision in
Marshall V. Qarlow's, Inc. which required different approaches
in selection offacilities for these inspections. (US, 98 5.
Ct. 1816 (19781).
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_ 5 —
The lead agency concept will in no case exclude either EPA or a
State from conducting independent inspections as prescribed m the
above paragraph. 3 where EPA is relying on inspections by an
unaoproved State to satisfy NPnps inspection nee^s, it must assure
the federal NPDES permit requirements are covered in the State
inspection along with the state requirements.
Mix of I"goec_ti o^s u>y Tyoe
The type of insoection will be tailored to the individual oumoses
to be achieved oy the insoection. The mix of insoections within
each State in turn will be tailored to the needs in each State.
A recommended mix of inspections will be develooed annually, in
connection with allotment of EPA resources to tne Regions in the
National Water Quality Enforcement Workload Model. In each State,
the recommended mix can be used as a guide in planning the annual
State inspection coverage, which is established in the annual state
EPA compliance inspection plan. The individual State inspection
mix will be tailored to the particular needs of the State such as:
a disproportionately large number of self-monitoring and laboratory
problems among major permittees that need to be addressed with
performance audit insnections, or a large number of dischargers
with toxics limits problems that require toxics sampling inspections.
In selecting appropriate inspection types for special or routine
problems, the definitions of inspections (Item B, Appendix) and
the "primary use" criteria (Item C, Appendix) should be used as a
general guide. The type of inspection Delected depends on the
compliance status, type of facility, and the nature of the
information needed from an inspection.
Each Region should assure that a core capability for conducting each
type of inspection is maintained within the geographic boundaries
of the Region. Each State program should be supported where necessary
by technical capability at the Regional level. Unnecessary redundancy
and duplication should be avoided without sacrificing the ability
of States and Regions to carry out their respective roles and
responsibilities.
Under S3Q9 of the Clean Water Act, EPA must take enforcement
action when the State does not commence appropriate enforcement
action. Consequently, EPA must maintain its own inspection
program and must maintain enforcement presence through fiPld
activities, as required in 5303 of the Clean Water Act.
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- 6 -
Reporting
In order to describe accurately the full extent of the inspection
program, the Regions and States are encouraged to report on all
NPDES inspections. Data on inspections of major permittees should
be reported in the Permit Compliance System (PCS), whenever possible.
When the State'is not a regular user of PCS, it should enter the
data into its ovn automated system and transfer the data into PCS,
or it should provide the data to the Pegion in a form that facilitate*
entry into PCS by EPA. To the extent possible, FPA encourages
reporting on inspections of minor permittees in PCS; otherwise data
should be reported to the Region manually in a format that includes at
least the name of the facility, permit number, the type of inspection
and the date of the inspection.
The organization conducting the inspection is responsible for
providing reports that are complete and available in a timely manner.
An inspection report is complete when it contains all the inspector's
observations, the analytical results, a completed form 3560-3
(Appendix, Item O) , and evidence of peer/management review and
signature of the reviewer. The inspection report should meet
timeliness goals as follows:
0 for sampling inspections, reports will be distributed
within /45 days of the date of the inspection;
0 for non-sampling inspections, reports will be distributed
within 30 days of the inspection; and
s
0 for entering inspection data into PCS, data entry will
be completed within Q0 days of the date of the inspection.
The inspection report must contain Form 3S60-3 and the information
must be entered into PCS to receive credit in Strategic Planning
and Management System (SPMS). However, where the State enters data
into PCS directly, the State may use an equivalent form if it
contains at least the same data elements as Form 3560-3. The
format and content of an inspection report are described in the
EPA NPDES Compliance Inspection Manual, (June 19S4).
Copies of the Inspection Reports should be sent to the permittee
a timely manner except when formal enforcement procedures are un-
way. in this instance, the case attorney will drrect any disclosure
of data.
in
are under-
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/State gel?tionphips
EPA overviews the State inspection program through a combination
of independent and joint inspections as well as periodic revie> of
insoection reports and files. In order to carry this out, the
Annual Inspection Dlans are negotiated Ket*/een E?% and eacn State
i" ace :>r i3-ce •/itw> tie Guidance on Annual ^tate/RPA Inscec'-icn ?l3-~.
Joint inspections will be negotiated as part of each ^nn^al
°l3n. Tre ?lan. also includes inspection priorities and nix
on the Annual Operating Guidance ononties and the Workload 'oJ2l
recomnendea TUX. The Annual Insnection ^lans should estaolish
thac a quarterly list of candidates for inspections will oe c*evelcpe~
within thirty days prior to each quarter. The Quarterly list
should contain nanes of major and DL9P-500 minor facilities to be
inspected and the estimated number of other inspections to be
concucted, grouped by inspection type ana/or facility category.
Annual Inspection Plans should be part of the annual SlOn grant
agreement or the State/EDA Agreement. To the degree that inspection
plans are a part of the 5106 process, insoection commitments and
Annual State/EPA Inspection Plans may be jointly reviewed during
mid-year and end-of-the-year program reviews.
The review of the inspection program should be part of the NPDES
program review, and will be based on the Annual Guidance for Oversio.i
of the NPDES Programs.
The Annual State/rlPA Inspection Plan «nll contain procedures for
communications between E°A and the ^tate on conducting NPDE5;
inspections within a given State. The detailed requirement for
Annual State/EPA Compliance Inspection Plans follows this Strategy,
as a separate document entitled "Guidance for Preparing Annual State/
EPA Compliance Inspection Plans."
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GUIDANCE FOR PREPARING AMMUAL
STATE/EPA COMPLIANCE INSPECTION PLANS
Background
has routinely negotiated agreements vith States for conducting
NPD~S Compliance Inspections. The work plans based on the
-------
Each Plan should establish annually the number and mix of inspections
by type for both the State and Reqion. The type of inspection should
be consistent with definitions and procedures outlined in the Agency's
June 1984 NPDES Compliance Inspection manual. The Plan should contain
criteria for selecting inspection candidates for the appropriate mix
of routine and soecial inspections. Each Plan will be oreoared for an
entire year and will account for the State and EPA resources devoted
to \'PDEC co-nliance insoections. A quarterly list of facilities that
are to be insoected should be established at least 30 davs prior to tu grouped by
inspection type and/or facility category. The status of the Plan
should be assessed at established intervals throughout the year.
EPA annually establishes a recommended mix of inspection type*;
through the budget workload model. The model generates a mix that
reflects the level of EPA resources, the number of permittees to
be inspected, and the emphasis of that National program on various
groups of permittees during the budget year. This recommended mix
should be used as a guide in preparing the Plan to establish coverage
and to meet the priorities of each State.
In order to avoid advance notification to the permittee, specific
dates of inspections should not be included in the Plan. The Plan
should include a procedure for providing notice to the State prior
to inspection where such notice will not jeopardize the purpose of
the inspection.
THe Plan should specify procedures, timeframes, and formats for
producing inspection reports and entering data into PCS. Whenever
the State and Region participate in a joint inspection, only the
lead agency will comolete the inspection form to account for the
•inspection. The agreement to conduct joint inspections is to be
included in the Plan.
The Plan should specify procedures and timeframes by which the
inspecting agency (either the Region or the State) will provide
copies of inspection reports to the agency that has lead
responsibility for NPDES program enforcement.
Development
The Plan should cover inspection activity as specified in the
Agency's Annual Operating Guidance. The Plan should be prepared
as part of the annual Region/State planning process and it should
be incorporated into the 5106 Plan or State/EPA Agreement. The
Plan should be in p-lace for each State no later than October 1,
or the beginning of the State fiscal year.
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- JO -
Approval
The Plan will be cosigned for approval by the State and Regional
program directors, who have the respective responsibility for
authorizing the resources needed to carry out the "Ian. In the
Region, this is typically the Water "'anayement Division Director,
Ongoing coordination between the ^tat^ and Region is ^xnectei daring
inplenentstion. (The Region and State should have procedure1? fo
establish quarterly a list of facilities that are to be inspectel,
and to assess the status of the annual Plan &t established intervals
throughout the year.l The Region should also agree to provide prior
notice to the State before conducting joint or independent
inspections, and to supply the State with at least se.ni-annual
reports of the Region's findings (min-year and end-of-year), the
State should be apprised of major problems as soon as they are
discovered. The Plan may be modified as needed to ensure that it
reflects changing conditions throughout the year.
Evaluation of Results
}
The Plan should contain procedures for ongoing evaluation of the
State inspection program, including periodic random audits of
insoection reports and case files. In addition to ongoing evaluatio
the Region will conduct at least an annual audit of the State
inspection records and management system. Review of the inspection
progran should be part- of the "tfPDFS program review process, ?n1 the
level and freguency of overview should be tailored to the state's
overall performance in the inspection activity category.
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Apnendix
-------
-------
Item A
1. Compliance Bio-noni tonng Inspection ^'anual (MCn-62, EPn, 1931
2. Compliance Evaluation Inspection Manual ('ico-75, E3^, 1Q°1)
3. Cc-pli?nce Evaluation and Trouble-snoot-' ng at ''umcipal
*%aste-vater Treatment Facilities (Z»*-t 30/9-7p-no 1)
4. Co-npliaice Flov Measurement Insosction 'arual (MCn-~'', Z?\, l
5. Compliance SaTpling Inspection Manual C^CD-51, EPA, 197°)
6. Model State Water Monitoring Program (FPV-44fl/9-74-002)
7. Multi-Media Co-npliancc Aadit Inspection Hanaal (EP*
8. Performance Audit Inspection Manual (EPA-3"^0/l-79-004
9. NPDES Compliance Inspection Manual (E?A/OVsEP-6/84}
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Item B
NPDES INSPECTION DEFINITIONS
Compliance Evaluation Inspect" ion (CFI)
A CEI is a nonsanpLing in^pectioi nesigred to verify permittee
compliance vith applic^hle permit sel f-"ion i tor in-^ reau i re-n3nts
ana compliance schedules. This insnectvon is based o-* recnr^
reviews arrJ v.sual observations and evaluations of tie treat-ient
facilities, effluents, receiving waters, etc. The CEI is use"* eor
Dotn chemical ana biological self-mon * tor ing program6*. The GET
for*is tne basis Cor all otner inspection types exceot the
Reconnaissance Insoection. As the GET does not involve sampling,
it is frequently uspd as a "rojtine" inspection.
The CEI is appropriate for routine inspections of facilities to
overview construction schedules, general plant operations and
maintenance, record-keeping, and sampling. As the basic element
of all NPDES inspection activity the evaluation can also concentrate
on program areas such as pretreatment and discharge monitoring
report quality assurance. The pricing factor For the CEI is 3
days for a major and 2 days for a minor permittee.
Compliance SamplingInspection (CSI1
During the CSI, representative samples of a permittee's influent
and/or effluent are collected. Samples that are required by the
per-nit are also obtained. Chemical analyses are then performed
and tne results are used 1) to verify the accuracy of the oer-nittee
sejf monitoring program and report and 2) t® determine the quantity
and quality of effluents, 3) to develop permits, and 4) wnere
appropriate, as evidence for enforcement proceedings. The chemical
analysis for the CSI is directed to pollutants which do not require
expensive and elaborate procedures such as those involved in Gas
Chromatograph-Mass Spectrophotometry. Other pollutants are covered
by the Toxics Campling Inspection. In addition to the above tasks,
a CSI incorporates the same objectives and tasks as a CFI. The
pricing factor for a CSI is 30 days for a non-municipal and 16 days
for a municipal permittee with the resource difference due to the
higher number of outfalls at a typical non-municipal facility.
The CSI inspection, because it is more resource intensive, must
have a more limited use. The CSI is most often conducted when
there is "cause" to suspect major violations of permit requirements
and effluent limits.
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Performance Audit Inspection (PAI)
The PAI is used to evaluate the permittee's self-monitoring progra
The PAI incorporates the sane objectives and tasks as a CEI, oat in
a PAI, the laboratorv procedures, data quality, and data handling
are examined in greater depth. In a PAI, the inspector actually
observes the permittee going through all of the stens on the self-
monitoring process from sanole collect* inn and flow measurement,
thrcuCK la~> analyses, data work-up and reporting. Also, tre PAT
inspector ma*' leave a chec* sample for the oermitte*3 to analyze.
The P\l is Tore resource intensive tnan a CEI, bjt less th-»n a CSI
because sanple collection and analyses by FPA or the State are nor
included.
The pricing factor for the PAI is 12 days. The PAI is used to
folio* up known or suspected problems with permittee self-monitorirg
such as DMP OA failures or inadequate DMR data.
Conoliance Ricmpnitonnq Inspection (CBI)
A CBI evaluates the biological effect of a permittee's effluent
discharge(s) on test organisms through the» utilization of acute
toxicity bioassay techniques. in addition, this inspection includes
the sanne objectives and tasks as CEI.
The pricing factor depends on method of exposure. The static test
requires 6 work days and an on-site flow through bioassay requires
30 work days. The CRI snould also be directed toward toxic proble^
It is most likely to be useful for non-municipals and municipals
with a large* proportion of industrial waste discharging into water
quality limited stream segments. For States which have water
quality standards for acute toxicity (e.g., Alabama, New Jer^ey!,
the results are a direct determination of compliance with the
standard. (In addition to these methods, chronic toxicity methods
are being developed.)
Toxics Sampling Inspection (XSI)
The XSI has the same objectives as a conventional CSI, however, it
places increased emphasis on toxic substances (i.e. the priority
pollutants) other than heavy metals, phenols and cyanide, which
are typically included in a CSI. Increased resources over a CSI
are needed because highly sophisticated techniques are used to
sample and analyze for toxic pollutants. The pricing factor for
XSI is 35 days. The XSI is usually reserved for toxics problems at
non-municipal facilities. These problems may be noncompliance,
permit reissuance, or water quality related.
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Diagnostic Inspecticr (PIT
The 01 focuses primarily on municipal POT'J's that are not n
compliance with their permit requirements. The purpose of tne OI
can be either to assist those ^OTUs without s«al f-c iagno*t: c
caoaoility or to evaluate causes for nonconpliance in suDoort cf
e^ f Drceme-11 actions. In 2it-ier case an objective of tne "^T is to
identify causes for nonco^p lia'ice *f>ich can he correct3: :~ a
relatively suort period of time and without lar^e capital
e\oer-.i t^res. The HI will also save as an oojective tho
identification of najor plant reficiencies in operation, "^si^i,
ard/cr construction. T'^e pricing factor Cor a DI is 16 -?y<5.
Recornaissance Inspection (RI)
The !RI is used to obtain a preliminary overview of a permittee's
compliance program. The inspector performs a brief visual
inspection of the permittee's treatment facility, effluents
anc receiving waters. The RI utilizes the inspector's experience
and judgment to quietly summarize a permittee'4? comoliance orogram,
The objective of the RI is to expand inspection coverage without
increasing inspection resources. It is the briefest of all \POES
inspections. The pricing factor for an RI is one day.
Legal Support Inspection (LSI)
The LSI is a resource intensive inspection conducted when an
enforcement probiei is identified as a result of a routine
inspection or a co-'olaint. For an LSI, the appropriate resources
s-re assembled to effectively deal ^ith a specific enforcement
problem, so there is no pstablisned pricing factor.
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NPDES INSPECTION USES
Item C
Selection Criteria
Routine compliance verification and
followuo on sc?ci:ic -rroole'ns (i.e.
scner'jles, OA -"ef ici encies , failun3
to reoort).
Inspection Ty~p *
CEI
(Comoli^nce "valj>
Resolve pernittee chronic ^elf-
monitornq problems and laboratory
deficiencies.
PAT
(Performance Audit
Identify POTU co-noliance deficiencies
that can be resolved quickly at limited
cost.
DI
{Diagnostic)
Expand regjlatory presence with
limited inspection resources to verify
basic compliance data.
Sample conventional pollutants to
verify effluent violations in support
of enforcement and/or to support
permit development.
Samole priority pollutants to verify
effluent violations in support of
enforcement and/or to support
permit development.
Screen for effluent acute toxicity in
.lieu of sampling for priority pollutants
and/or verify permit limits or water
quality standards for acute toxicity.
Provide intensive field investigation,
technical analysis, and expert witness
capability to support litigation, often
as the result of routine inspection or
complaint .
RI
(Reconnaissance)
CSI
(Compliance Sampling)
\SI
(Toxics Sampling)
CBI
(Compliance Riomonitori^g
LSI
(Legal Support)
* Any of the inspection types with the exception of the Reconnaissance
Inspection may be used for pretreatment program verification and for
direct determination of industrial user compliance with categorical
pretreatment standards.
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Uf •!« J "> 1 1 I t
I * ' ' I-'1 J" *"| ' » /
VMiMinc,tcn U C *OtoO
MPDES Compliance Inspection Report
Section A Minon il Olla Svsiom Corlinq
I c e n D
i-ortn »»| piovt'
OMSf'o 2040 Z~Z2
ArJcrovH Eajjires T 3 i
I
t-i-OE3
r 5
| 11 1Z_' ' L I ' I 17
Inspection T,t
IS
(nsp"C'or
2d
SI
O-i
7-
80
St ctir-n J F-C-UI
P ri< ITS
s- ,3 e
s te f!!D 2a«r
f'-ore 1.013)
i»ams Mcsress 01 nessons j e O icut
hue
Phono i o
Con a;
D ,.,
Section C Areas EviluJtud Duniuj Inspection
(S = Sstisfaciorv M ' t'zi? nil U = Un-i,is(ac orv N = Not £saiuatcd(
1 Perrr
i Reeo'Cs 'Resorts
i Faciiiu S>ie Review
I MOW ivteasurenir>(u
1 Laboratory
fivinT Watcts
Pretreaimeni
Compliance Schedules
I Self Monitoring Prp*nm
Operations C< lUairtarance
soosal
i 0 Her
j _ i Operations C< l
| | Slucse Otsoosa
Section D Summary of Hnt. nqs/Coinmcn's '*.;'Trt i«rwiw»/ ?/ic""is /' r »cs
Name(s) ano Signatureis) ot Inspectons)
Agency Ollice/Telephone
Daio
Signature of flevtewer
Ofdec
l.itorv Qtlirp Usi' Onlv
EPA Form 3560 3 (Rev 3 SS) Previous eonons are cosoieie
* I .on
!"j r-
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INSTRUCTIONS
Section A. National Data System Coding ft e . PCS)
Column 1" Transaction Code. Use N, C, or D for New, Change, or Delete All inspections will b w
unless there is an error in the data entered
y
Columns 3-11 NPDES Permit No Enter the facility s NPDES permit number (Use the Remarks
columns to record the State permit number, if necessary)
Columns 12-17 Inspection Dote Insert the date entry was made into the facility Use the
year/rrcrrn aav format (e g , 82 05/30 = June 30 1932)
Column 1 8 Inspection Type Use one of the codes listed below to cescnbe the t ,'pe of inspect.on
A — Perornance Auoit E — Corps of Enrr3 Inspec'ion S — Compliance Sampling
B — Biomonitoring L — Enforcement Case Support X — Tox-c Sampling
C — Compliance Evaluation P — Pretreatment
D — Diagnostic R — Reconnaissance Inspection
Column 1 9 Inspector Code Use one of the codes listed below to describe the leadagenc/ in the
inspection
C — Contractor or Other Inspectors (Specify in N — NEIC Inspectors
Remarks columns) R — EPA Regional Inspector
E — Corps of Engineers S — State Inspector
J — Joint EPA/State Inspectors—EPA lead T — Joint State/EPA Inspectors—State lead
Column 20 Facility Type Use one of the codes below to describe the facility
1 — Municipal Publicly Owned Treatment Works (POTWs) with t972 Standard Industrial Code
(SIC) 4952
2 — Industrial Other than municipal, agricultural, and Federal facilities
3—Agricultural Facilities classified with 1972 SIC 0111 to 0971
4 — Federal Facilities identified as Federal by the EPA Regional Office
Columns 21 -66 Remarks These columns are reserved for remarks at the discretion of the Pegicn
Column 70 Facility Evaluation Rating Use information gathered during the inspect ion (reg?rd!ess
of inspection type) to evaluate thequality of the facility self-monitoring program Grade the program
using a scale of 1 to 5 with a score of 5 being used for very reliable self-monitoring programs, 3 being
satisfactory, and 1 being used for very unreliable programs
Column 71. Biomonitoring Information Enter D for static testing Enter F for flow through testing
Enter N for no biomomtormg
Column 72 Quality Assurance Data Inspection Enter Q if the inspection was conducted as
• ,'owup on quality assurance sample results Enter N otherwise
Columns 73-80 These columns are reserved for regionally defined information
Section B Facility Data
This section is self-explanatory
Section C. Areas Evaluated During Inspection
Indicate findings (S, M, U, or N) in the appropriate box Use Section D and additional sheets as
necessary Support the findings, as necessary, in a brief narrative report Use the headings given on
the report form (e g , Permit, Records/Reports) when discussing the areas evaluated during the
inspection The heading marked "Other* may include activities such as SPCC, BMP's, and multime-
dia concerns
Section D Summary of Findings/Comments -~
Briefly summarize the inspection findings This summary should abstract the pertinent msp n
findings, not replace the narrative report Reference a list of attachments, such as completed
checklists taken from the NPDES Compliance Inspection Manuals and pretreatment guidance
Hnnjments, including effluent data when sampling has been done Use extra sheets as necessary
EPA Form 3560 3 (Rev 3-85) Reverse
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II.B.9,
"NPDES COMPLIANCE INSPECTION MANUAL", dated January, 1988. Table of
Contents only. Replaces June, 1984 edition.
-------
-------
United States
Environmental Protection
Agency
Office of Water
Enforcement and Permits (EN-338)
Washington. D.C. 20460
NAT 1988
Water
EPA
IMPDES
Compliance Inspection
Manual
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~(0
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TABLE OF CONTENTS
Contents Fage
List of Tables x1
11st of Figures xiii
List of Acronyms xv
Chapter One; Introduction
Legal Authority for NPOES Inspections 1-1
Responsibilities of the NPOES Inspector 1*3
Multimedia Concerns in NPOES Permitting and
Inspections 1*9
ChapterTwo; Inspection Procedures
Pre*Inspection Preparation 2*1
Entry 2*11
Opening Conference 2*15
Documentation 2*19
Closing Conference 2*29
Inspection Report 2*33
Chapter Three: Recordkeeping and Reporting
Inspection Authority and Objectives 3-1
Evaluation Procedures 3-3
Verification, Recordkeeping, and Reporting Evaluation
Checklist 3-9
Chapter Four; Facility Site Review
Objectives 4*1
Physical Inspection of the Facility 4*3
Operation and Maintenance Evaluation 4*13
References and Facility Site Review Checklist 4-25
NPDE5 Inspection Manual ix January 1988
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Table of Contents
TABLE OF CONTENTS (Continued)
Contents _____^__^_ Page
Chapter Five; Sampling
Evaluation of Permittee Sampling Program and Compliance
Sampling ...»....•«*...«•«•«...«.... •••••••••••**•*• 5*1
Sampling Procedures and Techniques 5-3.
References and Permittee Sampling Inspection Checklist .... 5-23
Chapter Six; Flow Measurement
' Evaluation of Permittee's Flow Measurement 6-1
Supplementary Information 6-5
Flow Measurement Compliance 6-29
References and Flow Measurement Inspection Checklist 6-37
Chapter Seven: B1omonltoring
Evaluation of Permittee Se1f-B1omon1tor1ng Program 7-1
Compliance B1omonltoring Inspection 7-9
Chapter Eight: Laboratory Quality Assurance
Objectives and Requirements 8-1
Sample Handling Procedures 3.3
Laboratory Analyses Techniques Evaluation 8-5
Quality Assurance and Quality Control 8-9
References and Laboratory Quality Assurance Checklist 8-13
Chapter Nine: Pretreatment
Review of the General Pretreatment Regulations 9-1
Pretreatment Compliance Inspections (PCIs) and Audits 9-19
References 9-25
NPOES Inspection Manual x January 1988
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LIST OF TABLES
Taol e page
F-l Comparison of Inspection Activities with Inspection
Types .
1-1 Responsibilities of the Inspector In the Inspection
Process 1-7
2-1 NPDES-Related Statutes and Regulations 2-7
4-1 Operations and Maintenance Function Evaluation
Questions 4-17
5-1 Volume of Sample Required for Determination of the
Various Constituents of Industrial Wastewater 5-9
5-2 Compositing Methods 5-12
5-3 Required Containers, Preservation Techniques, Holding
Times, and Test Methods 5-13
6-1 Head-Discharge Relationship Formulas for Nonsubmerged
Weirs 6-11
6-2 Discharge of 90° V-Notch Weir - Head Measured
at Ue1r Plate 6-12
6-3 Minimum and Maximum Recommended Flow Rates for
Clpollettl Weirs 6-13
6-4 Minimum and Maximum Recommended Flow Rates for Free
Flow Through Parshall Flumes «... 6-13
6-5 Free-Flow Values of C and N for Parshall Flume Based
on the Relationship Q * CWHan 6-14
6-6 . Minimum and Maximum Recommended Flow Rates for Free
Flow Through Plastl-Fab Palmer-Bowl us Flumes 6-15
NPDES Inspection Manualxi January 1988
-------
List of Tables
LIST OF TABLES (Continued)
Page
6-7 Coefficients of Discharge c for Venturl Meters ..... ..... 6-16
6-8 Values of K 1n Formula fop Venturl Meters ............... 6-16
6-9 ' Advantages and Disadvantages of Secondary Devices ....... 6-17
7-1 Recommended Species. Test Temperatures, and Life
stages •••••«•••••••.•••••••••.*...«««««.•«.«....«»..«« 7—5
9-1 Summary of the General Pretreatment Regulations ......... 9-9
9-2 Summary Status of National Categorical Pretreatment
Standards: Milestone Dates ........................... 9-14
WOES Inspection Manual *" January
-------
LIST OF FIGURES
Figure . Page
2-1 Sample 308 Letter 2-9
2-2 EPA Deficiency Notice Form 2-31
2-3 NPDES Compliance Inspection Report Form 2-37
/
5-1 Example Chaln-of-Custody Form 5-21
6-1 Profile and Nomenclature of Sharp-Crested Weirs 6-19
6-2 Three Common Types of Sharp-Crested Weirs 6-20
6-3 Flow Rates for 60° and 90° V-Notch Weirs 6-21
6-4 Nomograph for Capacity of Rectangular Weirs 6-22
6-5 Flow Curves for Parshall Flumes 6-23
6-6 Dimensions and Capacities of Parshall Measuring
Flume for Various Throat Widths 6-24
6-7 Effect of Submergence on Parshall Flume Free
Discharge 6-26
6-8 Free Flowing Palmer-Bowlus Flume 6-27
6-9 Configuration and Nomenclature of Venturl Meter ......... 6-27
6-10 Electromagnetic Flowmeter 6-28
6-11 Propeller Flowmeter 6-28
7-1 NPOES Tox1c1ty Test Evaluation Form 7-7
NPDES Inspection Manual xi11 January 1988
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II.B.10,
"Use of the New NPDES Compliance Inspection Form", dated May 14, 1985,
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D C. 20460
MAT ! 4 IS35
ME ''OR* ^'pf 1
SUBJECT- Use of the "Jew MPDES Compliance Inspection Form
X?<*^^ -- -#cft?r
FROM: RebeccjrW.^fianmer, Director
of Water Enforcement and Permits (EN-335)
OFF>C= O
TO: Regional Water Management Division Directors
Regional Environmental Services Division Directors
State Program Directors
EPA has prepared and obtained OMB authorization for the
attached EPA Form 3560-3 (Revised 3-85). Users of the inspection
form shoulo be aware of the following information.
Purpose; The purpose of shortening Form 3560-3 is not to reduce
tne quantity and quality of data collected during inspections, b«t
is to provide flexibility to Regions and States in the reporting
formats they ose. EPA Form 3560-3 includes only the most basic
points of information necessary for the Permits Compliance System
(PCS) national data base. States and Regions will prepare more
comprehensive narrative reports on the findings from the inspections,
and States may use their own detailed inspection forms in addition
to the Form 3560-3, for NPDES inspections.
Required Use; The Form 3560-3 must be included in NPDES inspection
reports and the information must be entered into PCS to receive
credit in EPA's Strategic Planning and Management System (SPMS).
However, where a State enters data directly into PCS, the State
may use an equivalent form if it contains at least the same data
elements as Form 3560-3.
Status of Old Form; The new inspection form essentially replaces
the first page of the old form. The Regions and States, as they
wish, may still utilize parts of the old form, specifically pages
2, 3, and 4, until supplies are exhausted. The old form will not
be reprinted when the existing supplies are gone.
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- 2 -
Guidance on Preparing Inspection Reports; In addition to
instructions on the form, Regions and States should consult the
Compliance Inspection Manual (June 1984) for detailed guidance
on preparing inspection reports (pp. 2-27 to 2-30) and for use
of the appropriate checklists for covering subject areas investi-
gated during an inspection (pp. 3-9 to llj 4-24 to 25; 5-22;
6-20 to 21; 7-8; and 8-Q).
Reports Distribution; The shortened forn is a single page with
no duplicates or carbons, whereas the old form came in color
coded multicopy pressure sensitive four-part sets. To satisfy
the needs of distribution, a completed original of the new form
and the attachments will need to be reproduced as needed. This
reduces waste of extra unneeded copies and improves utility of
the form in the field.
Availability of New Form; The new form was p'rinted and distributed
to Regions in April 1985. The forms are available from the Forms
Officer in each Region or from:
EPA, Distribution and Warehousing
Wing G; Room 207
Research Triangle Park, NC 27711
Length of theOMBApproval: The new form indicates approval by
OMB expires on July 31, 1985. However, we have been assured,
that approval will be extended through 1986, when it will be
necessary to have the form reapproved.
Any questions about the new form may be directed to Gary Polvi
(FT<3/202 475-8318) or Virginia Lathrop (?TS/2n2 475-8299) in the
Water Enforcement Division (EN-338), Washington, D.C. 20460.
Attachment
cc: Regional NPDES Inspection
Program Managers (WMD and ESD)
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it Ht..* enviruHrrn-nm r*'ur cii
gton o C 2 04 CO
INJPDE& Compliance Inspection Report
_If:n U
i or tn *»(>pf orf^u
Ow1Q Ho 2040 CCC3
Aporovm Expires 7 2 « 55
Section A National Oati System Codmq
£' on Co
-------
INSTRUCTIONS
Section A National Data System Coding fi e.. PCS)
Column 1 Transaction Code Use N, C, or D for New, Change, or Delete AH inspections will b' w
unless there is an error in the data entered
Columns 3-11. NPDES Permit No Enter the facility's NPDES permit numbe-- (Use the Remarrs
coluirns w record the State permit number, if necessary)
Columns 12-17 Inspection Date Insert the date emr/ was made into me faciht" Use ths
year/ month/day format {e g , 82 05/CO = June 30, 1932)
Column 18 Inspection Type Use one of the codes hstea below to describe tne */pe or inspec* en
A — Performance Audit E — Corps of Ergrs Inspection S — Cormlu nee Scnplsnc
B — Biomonitormg L—Emorcement Case Support X — Toxic Sampling
C — Compliance Evaluation P — Pretreatment
D — Diagnostic R — Reconnaissance Inspection
Column 19 Inspector Code Use one of the codes listed below to describe the lead agenc/ in the
inspection
C — Contractor or Other Inspectors (Specify in N — NEIC Inspectors
Remarks columns) R — EPA Regional Inspector
E — Corps of Engineers S — State Inspector
J — Joint EPA/State Inspectors—EPA lead T — Joint State/EPA Inspectors—State lead
Column 20 Facility Type Use one of the codes below to describe the facility
1 — Municipal Publicly Owned Treatment Works (POTWs) with 1972 Standard Industrial Coce
(SIC) 4952
2— Industrial Other than municipal, agricultural and Federal facilities
3 —Agricultural Facilities classified with 1972 SIC 0111,to 0971
4 — Federal Facilities identified as Federal by the EPA Regional Office
Columns 21 -66 Remarks These columns are reserved for remarks at the discretion of tne Rec>sn
Column 70 Facility Evaluation Rating Use information gathered during the inspection (regard'ess
of inspection type) to evaluate the quality of the facility self-monitoring program Grade the program
using a scale of 1 to 5 with a score of 5 being used for very reliable self-monitoring programs, 3 be>ng
•satisfactory, and 1 being used for very unreliable programs
Column 71 Biomonitormg Information, Enter D for static testing Enter F for flow through testing
Hnter N for no biomonitonng
Column 72: Quality Assurance Data Inspection Enter Q if the inspection was conducted as
Mowup on quality assurance sample results Enter N otherwise
Columns 73-80 These columns are reserved for regionally defined information
Section B Facility Data
This section is self-explanatory
Section C. Areas Evaluated During Inspection
Indicate findings {S, M, U, or N) in the appropriate box Use Section D and additional sheets as
necessary Support the findings, as necessary, in a brief narrative report Use the headings given on
the report form (e g , Permit, Records/Reports) when discussing the areas evaluated during the
inspection The heading marked ' Other ' may include activities such as SPCC, BMP s, and multime-
dia concerns
Section D. Summary of Findings/Comments
Briefly summarize the inspection findings This summary should abstract the pertinent msoe
findings, not replace the narrative report Reference a list of attachments, sucn as completed
checklists taken from the NPDES Comoliance Inspection Manuals and pretreatment guia^rce
documents, including effluent data wnen sampling has been done Use extra sheets ns necessary
EPA Form 3560 3 (Rev 3-85) Reverse
-------
II.B.ll,
Pretreatment Compliance and Audit Manual for Approval Authorities. See
VLB.24.
-------
-------
II.B.12,
# "NPDES Compliance Flow Measurement Manual", dated September, 1981. Table
of Contents only.
-------
-------
United State*
Environment*! Protection
Offtee of Water Enforoement and
Pwmrti Enforcement Divwon (EN-338)
Wariungton, OC 204W
ber 1981
Wtter
oEPA NPDES
.Compliance Flow
Measurement Manual
MCD - 77
-------
HPDES COMPLIANCE FLOW MEASUBEMENT MANUAL
U.S. Environmental Protection Agency
September, 1981
by:
David L. Gut brie, P.E.
Office of Hater Enforcement and Permits
Enforcement Division
Compliance Branch
-------
HPDES COMPLIANCE FLOW MEASUREMENT MANUAL
Table of Content*
.Page
Disclaimer ii
Acknowledgement * lit
Table of Concents iv
List of Illustrations vii
List of Tables ix
Fo reword. 1
Introduction 3
Basic Methods 10
Weighing the Discharge. 10
Volumet ric Methods 11
Sump Pumps 13
Orifice Buckets 15
Weirs 17
Sharp Crested 17
V-Notch 19
Rectangular 22
Cipolletti 27
Other Weirs 30
Submerged Weir Conditions 32
Correcting for Velocity of Approach 34
Weir Inspections 36
Broad Crested 37
-------
Table of Content* '
(Continued) NV-
Page
Flumes v 39
Parstrall 39
Palme r-Bowlua 48
Pttot Tubes 51
Methods Used To Measure Water Height (Head) 56
Stevens Meters or Drum Recorders 56
Manning Dippers 58
Belfort Liquid Level Recorders 61
Sonics 63
Gauges 65
Scow. 65
Bubble rs. 67
Charts/Calibrations 71
Energy Grade Line Calculations 71
Orifices 7t>
Nozzles 79
Venturi Flowmeters * S4
Open-Pipe Methods 87
California Pipe Method 87
Purdue Method 90
' \f~~- '
•U?
-------
Table of Contents
(Continued)
Page
Open Channel Measu cements 93
Flow From Vertical Pipes 93
Equations * 93
Velocity-Area Method 100
Stream Gauging 105
Current Meters 106
Dilution Methods and Tracers...... Ill
Dilution 112
Slug vs. Constant-Rate Injection 112
Exotic Methods 115
Electromagnetic Flowmeter. 115
Acoustic Flowmetera 115
Electrical Methods 119
Summary 120
Appendix
vi
-------
List of Illustrations
Figure Page
1. Sharp-Crested Weir Nomenclature 18
2. Three Comnon Types of Sharp-Crested Weirs 20
3. Flow Rates for 60° and 90* V-Notch Heirs 23
4. Discharge Curve for 90* V-Notch Weir 24
5. Suppressed Rectangular Weir 26
6. Nomograph for Capacity of Rectangular Weir 28
7. Discharge Curve for 10" Rectangular Weir. 29
8. Discharge Rate vs. Weir Head for Cipollettl Weir 31
9. Submerged Weir Calculations/Ratios 33
10. Typical Suppressed Wetr in a Flume Drop 40
11. Configuration for a Standard Parshall Flume...* 41
12. Parshall Flume Discharge Curves 44
13. Typical Flume Submergence Flow Rate. 45
14. Parshall Flumes - Typical Installation and Capacity Curves*... 46
15. Discharge Curve for a 6" Parshall Flume 47
16. Typical Installation of a Temporary Flume...... 49
17. Pitot Tube Measures Velocity Head 52
18. Graph for Converting Velocity Head to Velocity 54
19. Horizontal Drum Water-Stage Recorder 57
20. The Manning Dipper™ 59
21. Typical Installation of a Manning Dipper™ 60
22. Belfort Liquid Level Recorder 62
23. System Layout of a Sonic Water Level Meter * 64
24. Hook and Staff Gauges • • 66
-------
List of Illustrations
(Continued)
£ig_u£e - Page
25. Typical Installation of a Scow 68
26. Typical Installation of a Bubbler 69
27. Typical Strip Chart Recorder and Strip Chart.. 72
28. Surcharging Sewer Schematic 75
29. Orifice Shapes and The! r Coefficients 77
30. Flow Nozzle in Pipe 80
31. Kennison Open Flow Nozzle 83
32. Venturl Meter 85
33. California Pipe Flow Method 89
34. Discharge Rate vs. Flow Depth for California Pipes 91
35. Purdue Method of Measuring Flow from a Horizontal Pipe 92
36. Approximating Flow From Vertical Pipes 94
37. 'Hydraulic Elements for Circular Sewers..... 97
38. Depth Ratio vs. Area Ratio 98
39. Nomograph Based on Manning's Formula 99
40. Determining Mean Velocities 103
41. Assembly Drawing of Price Type AA Current Meter 107
42. Type "A" Crane and Current Meter Assembly.... 108
43. Ott-Type Horizontal Axis Current Meter 110
44. Constant Rate and Slug Injection Methods 113
45. Typical Magnetic Flow Meter 116
46. Ultrasonic Flowmeter 118
-------
Lilt of Table*
Table Page
1. Flow Measurement Methods 9
2. Volumetric Formulas... 11
3. Values of C for V-Notch Weirs 21
4. Exponents In the Free Discharge Equation for Submerged Weirs...... 34
5. Calculating Velocity of Approach for a Sharp-Crested Weir..«. 35
6. Advantages and Disadvantages of Parshall Flumes...... 42
7. Submergence Ration vs Throat Size In Parshall Flumes 42
8. Flume Checklist SO
9. Features of the Belfort Liquid Level Recorder 61
10. Values of n to used with the Manning Equation... 96
11. Values of K and K for Circular Channels 101
12. Comparison of Merits of the Dilution Method Ill
ix
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II.B.13.
# "Guidelines on Requirements for Exceptions for NPDES Inspector Training",
dated January 28, 1990. without attachments.
-------
4
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auJ
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC. 20480
«Li\ 2 3 1989
of
WATIH
reptions for
MEMORANDUM
SUBJECT: Guidelines on Requirements for
NPDES Inspector Training
FROM: David N. Lyons P.E., Chie
Enforcement Support Branc
TO: Regional Compliance Branch Chiefs,
Water Management Divisions
Field Service Branch Chiefs,
Environmental Services Divisions
Regions I - X.
In compliance with the direction to the Assistant
Administrators in EPA Order 3500.1, on Training and Development for
Compliance Inspectors and Field Investigators, the Enforcement
Division, Office of Water Enforcement and Permits has prepared the
attached Guidelines on Requirements for Exceptions from NPDES
Inspector Training which can be used by supervisors in evaluating
training needs of those individuals conducting, or overseeing the
conducting, NPDES/pretreatment compliance inspections. This guide
establishes a process and offers work sheets and directions to plan
and manage the NPDES Inspector Training Program. We have worked
with members of the NPDES Inspection Materials Work group and the
Agency Inspector Training Advisory Board to develop this final
product. Our objective was to break the Work Sheets into
manageable pieces, a modular form, to allow broader usage. The
goal is to develop an easy to follow guideline to assure that all
inspectors are well grounded in the basics of the program before
performing NPDES inspections independently.
While these guidelines are considered final we continue to
encourage comments on ways to make this a clear and concise
document. We are especially interested in your comments on Work
Sheet II and Form A since this portion of the guidelines are
required for compliance with Order 3S00.1. Work Sheet #2 is
recommended but not required. Please provide ideas for improvement
or questions to Virginia Lathrop, Enforcement Support Branch,
(EN-338) FTS 475-82^.
Attachment
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\
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GUIDELINES ON REQUIREMENTS FOR EXCEPTIONS TO MINIMUM
NFDES / PRETREATMENT INSPECTOR TRAINING
INTRODUCTION
These program specific guidelines are designed to help first
line supervisors and inspectors with NPDES and pretreatment
responsibilities to implement the requirements of EPA Order
3500.1 on Training and Development for Compliance Inspectors and
Field investigators (6/88). The Guide contains: 1) work
to be used in documenting existing experience and assessing the
inspector's (or first line supervisor of an inspector) training
needs and whether previous training and experience qualifies for
an exception to NPDES minimum training requirements* ; and 2) a
form to request an exception to the minimum requirements. These
forms are to be filled out by the current or prior supervisor.
Supervisors should review and update all work sheets annually.
Required Work Sheet * l
EPA Order 3500.1 requires Basic Training (that is the
Fundamentals of Environmental Compliance Inspections and basic
level health and safety course under EPA Order 1440.2) and the
program - specific minimum training (defined by each media office
in a Inspector Training Program Description). The NPDES Minimum
Training*, includes any Regional workshop, self study or on the
3ob training (OJT) utilizing the five modules on Introduction to
NPDES Inspections, and the NPDES Compliance Inspection Manual.
This program will develop basic program knowledge and skills
primarily for the new inspector. This is essential to the
development of skills for conducting compliance evaluation
inspection (CEls), compliance sampling inspections (CSIs) and
reconnaissance inspections (RIs).
Completion of Work Sheet |1 is required for all NPDES
Inspectors and their first line supervisors to show compliance
with EPA Order 3500.1. (In order to cut down on verbosity, the
Work Sheets and Form will refer to "inspectors", with the intent
of covering "field investigators" and their first line
supervisors as well.) If you answer "yes" in column 1 of this
work sheet, the inspector may be eligible for an exception to the
minimum requirements, and Form A may be used to request one. (The
process for requesting an exception is relevant only to the
minimum training requirements.)
*NPDES Minimum Training requirements are described briefly
in the summary in the Appendix, Page A-3. They are described in
more detail in the NPDES Inspector Training Program Description,
March, 1989. if copies are needed please call Virginia
Lathrop, OWEP (EN-338), FTS/475-8299.
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- 2 -
Work Shaate • 2
Work sheet # 2 addresses NPDES Skills Development and
Specialized training. Although the Order does not require a
specific curricula of training as a prerequisite to inspectors
leading or independently conducting more specialized and skill
demanding inspections, it is obvious that some form of training
is essential to develop advanced skills for conducting such
technically oriented field investigations such as toxic sampling
inspections (XSI), compliance biomonitoring (CBI), pretreatment
compliance (PCX), performance audit (PAX), diagnostic (01), or
other specialized inspections. Therefore Work Sheet # 2 is
offered as another planning tool for the Regional Offices.
/
-------
WORK SHEET I 1
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-------
GUIDELINES FOR EXCEPTIONS TO MINIMUM NPDES / PRETREATMENT
INSPECTOR TRAINING - WORK SHEET # 1 (REQUIRED)
A. Background
Employee Name
New [ ] Experienced [ ]
Organization/ Program Assignment
Inspector [ ] supervisor [ ]
A.l Scope of Training Program: This training program will prepare
the employee to lead or independently conduct the following types
of inspections. (Check all that apply.]
ill
Evaluation Inspection (CEI)
Compliance Sampling Inspection (GSI)
Reconnaissance Inspection (RI)
A. 2
iea-
Tvna of Twiinim
bility
(Yes/No)
Fundamentals of
Environmental Compli-
ance Inspections
A.2.b Health and
Safety Orders
1. 1440.2
- Basic
- Advanced
2. 1440.3
Previous Ting./
Exp. satisfies
Req'mts
(Yes/No)
Training
Completion
Planned Actual
CBtfl
A.3 __
for NPDES It
A.3 Minimum NPEES-Specific Training*
A.3.a self study (to prepare for CEI, RI and CSI)
definition, page 2 of the Introduction.
-, t
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- 2 -
WOHC SHEET I 1
PREVIOUS TBAINIMS/
sftnsrns TRAINING
REQUIHEMENTS OCMPUBTICK ACTUAL
_ (Yes/No) TaRZT OOMPIEnON
NFCES Oonpliance Inspection OKIE DftTE
Manual (1988) with self
stud/ guides, policy
guidance, regulations
& Clean Water Act (Yes/No) _ _
A.3.b on the Job (OFT)
QJT - Office
1) Ability to perform file
review, prepare a plan (Yes/No) _ ___________
for coordination
with the state.
2) Ability to prepare clear
accurate, concise reports (Yes/No) _ _
& any follow-up.
3) if a supervisor, ability to
effectively plan, coordinate
& schedule inspections (Yes/No) _ _
OJT - Field
4) Ability in the field to
evaluate Permittee's flow
measurement, sampling, & (Yes/Ho) _ _
analytical technique.
5) Ability to use personal
skills (Balance of assert-
iveness and tact) . (Yes/No) _ _
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- 3 -
WOFK SHEET * 1
FHEVIOUS TRMKDC/
EXPERIENCE SATISFIES THAHQNS
RBQU-LKtMENTS CCMPLETICN ACTUAL
(Yes/No) TARGET OCMREXICN
DUE DATE
6} Successfully completed at
least 4 non-sampling lisp.
oonpleted with injector as
asst to lead inspector (CEIs). (Yes/No)
7} At least 2 sanpling inspections
Gcof)leted with, inspector perfoming
all functions correctly with
oversight of an experienced (Yes/Mo) ______ «______.
inspector. (Where inspector (Yes/No)
is to conduct CSX)
A.3.C Suooessfully ooopleted Regional dass/Wortehcp * Introduction to NKES
Inspections (using Introductory NFCES Inspector Training Modules).
1) overview (Yes/No)
2) sanpling (Yes/No)
3) lab Analysis (Yes/No)
4) Legal Issues (Yes/No)
5) Bianonitormg (Yes/No)
A, 4 Additional Courses
Any
nocdod as in wastcwater
treatoent, chenistry, etc. oagLETICH ACTUAL
TARGET CCHFLEIXCN
SUBJECT DKTE DATE
Signature of First Line Supervisor Bate
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- 4 -
WORK SHEET # 1 - IMUmJU!E16 - DBEBCTOR TR&ININ5 HCRK SHEET
This work Jhset developed by each Enforcement Prujiam Office should must be
completed for each inspector to show compliance with ERA Order 3500.1. This work
sheet should be used to decide: 1) what training is applicable to the inspector
or first-line supervisor; 2) whether previous training satisfies the requirement;
and 3) if it does not, when training is planned and is completed. A separate
form is available to document the request for an
A.
l. Enter employes name, organization, and pnyjyflin assignment*
2. Check whether the individual is new or experienced as defined by EPA Order
3500.1; also check whether the Individual is an inspector or supervisor, and
whether or not a new employee. Definitions of new and 'experienced inspector are
found in ERA Order 3500.1. specifically those definitions are:
New Inspector - individuals newly employed by EPA after June 29, 1988
regardless of previous training in and experience leading, (or conducting
independently) environmental compliance inspections, GR
- Individuals rehired by EPA or transferred within EPA
after June 29, 1988 with no previous training in and experience leading, (or
conducting independently) environmental compliance inspections/field investiga-
tions.
Experienoffa TnagftStTT - Individuals who were employed by ERA on June 29,
1988 and who have previous training in and experience leading, (or conducting
independently) environmental compliance inspections/ field investigations in any
one of ERA'S compliance and enforcement pruyiaiuB.
A. Under Scope of Training, list the types of inspections.
A.I Basic Curriculum - fundamentals of Environmental
1. Applicability; The Fundamentals Course applies to all inspectors and first-
line supervisors; therefore, mark column 2 yes.
2. Prgvir"g TTftjniin/EXPKi^^^ Sat^fi*** **^JSSttiJSBBSntl. Answer yes in
column 3, if the inspector or first-line supervisor has demonstrated previous
training and/or experience commensurate with the objectives of the course. If
no, complete column 4.
Refer to
^en 7 of EPA Order 3500.1
-9. for the principles to follow in assessing previous
training and/or experience, and examples that satisfy the course objectives.
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- 5 -
HOIK SHEET 11- INSTRUCTIONS
Ib develop in inspectors and first line supervisors:
a. Wewledge of the Agency's comp:
ilii
and enforcement policy, the enforc
nt
b.
c.
d.
e.
f.
process, and the roles inspectors play in compliance monitoring and case
development;
Knowledge of the extent ana limitations of EftVs legal authorities to enter
and inspect facilities;
Riowledge of evidentiary requirements and the procedures designed to assure
that data collected on an inspection will be admissible in court;
Itaowledge of good work practices related to planning and conducting field
inspections, including technical and administrative subjects V and ccnnunic
ations skills;
Riowledge of the requirements of a good quality inspection report; and
Knowledge of how to prepare for and participate in enforcement
such as settlement negotiations, hearings, and trials.
3. Training Completion: If the inspector is not qualified for an exception,
then establish a target date in column 4 for training to be completed. After th
training is finished, then record the actual date it was completed.
The Office of Water Enf oroanent and Permits strongly believes that all
inspectors should receive the Agency Course, "Fundamentals of Environmental
Compliance Inspections,1* although experienced inspectors nay seek an exception t
this course.
A* 2
ltli ad
if
1440.3)
1440*2 and,
The app
training
the duties of the
Under EPA Order 1440.2,
, mark this item
tor; one or both health and safety orders nay apply
the basic-level training applies to all inspectors. Therefor
yes in column 2. Other levels of training under 1440.2, intermediate and
advanced, as well as training required under 1440.3 depend on the types of
hazards the inspector may routinely encounter. Consult Regional guidance or
orders on health and safety to determine which levels apply and naric the work
sheet accordingly.
column 3, consult Regional guidance or the Regional Health and Safety Officer
ling ITI u. sea or experience that satisfy the requirements. If no, then
complete column 4.
EPfr-approved courses include;
a. Environmental Health and Safety Division (EHSD) Developed Courses
ii!
(Steen &
Associates, Inc.) - a 22-nodule slide/tape piuyiaa
(Available rt 89)
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- 6 -
WORK SHEET I 1 - INSTRUCnCNS
b. Office of Emergency and
i.
ii.
(OERR) Developed Courses
Upon request, EHSD will review
Courses and approve than * the reojui
»n
,y available Health and Safety
Contact EHSD in EPA Headr rters or Regi
A.3.a to V3.c. NFCES Program Minima Training
of 1440.2 and/or 1440.3 are net.
1 Health and Safety Managers*.
Et If the inspector
has had prior experience or training related to NPCES inspections in
with the following sections A.3.a, A.3.b or A.3.c, please circle the "yes."
The "no" response will normally be circled for new staff. If "no1* is indicated
under the "previous training satisfies requirement" section, training compl
target dates oust be established. All new inspectors are expected to complete
the NPCES MtniiMi Training
elf
(A.3.a training only) «• For those
A. 3. a .
individuals who within the past two years have become familiar with the material
in the NPCES compliance inspection Manual (and Draft Self Study Guide as an
option) , the Flow Measurement Manual and the dean Water Act and the regulations
through self study, classrocqAJorkshop exposure or supervisory experience in the
NPDES
n tfr* JHH
A.3.b
For those experienced individuals who within the last two years, have
TO fom (A.3.b training only)
fully led or independently onndnrfBrt NPDES inspect
trainers/coaches of other inspectors in OJT situat „
work groups for developing training materials, because of their extensive
expert
ions, or have been designated
s in OJT situations, or actively served on
These individuals will by their career circumstances have already had the
equivalent of a formal OJT piuyiaui, and will have knowledge of how to prepare for
inspections, how to use human relations skills during inspections, how to sample,
review records and prepare reports. For supervisors a mlnlTtiim of two years of
supervising experienced NPDES inspectors and including responsibilities such as
reviewing inspection reports. New or experienced supervisors would be expected
to have observed or assisted on at least two NPCES inspect
necessarily to have
A.3,c NPDES
i ining b
though not
(A.3.C training only) -
those individuals who within the last two years, have successfully led or
independently conducted or supervised NPDES inspections and have been designated
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- 7 -
SHEET t t - INSTRUdTCNS
by the supervisor to teach/ coach other inspectors, or have actively served on
work group* for developing training materials, hermise of their extensive
ienoe. (Self study would be appropriate if no NFCES class/workshop was
offered within reasonable travel distance within one year of a new inspector's
entry date.)
Training for NPGGS inspectors nay also include remedial classroca training on
such areas as wastflwatmr trea-basnt, chemistry, biology, etc. should the
visor require this. However this training will not. be subject to the
fiwraver the answer is "no* to the
question on previous training, the "training nrnpletlcn target date" oust be
listed.
there is a target
entered, the
actual ooBpleticn date should be entered when the targeted training is conpleted.
The first line supervisor should review and approve the
HbrJc
-------
-------
A - E3QTT3CNS
-------
WQRC SHEET I 1 -FOR! A
FCRf A - JMJUEST PCR EXCEPTION UNDER EPA ORDER 3500.1
EMFIDTCE NBME
Hew £ ] Experienced £ ]
Types of Coop]
CRSANZZATZCN
Inspector [ ] Sigiervisor [ ]
Inspection Related Duties:
Pmyian AssicpmBRts
[ ] Request for Deception: This employee has previous training and or
experience that satisfies the following requirements of EPA Order 3500.1
'UKAJj^iNfl Htx Trng
Class
Previous
acper-
ienoa
Oats Su]
OESCRXPTIGH
jctcv4dUK a it'ji •av***. ^y faK»v»
Approving Official/ Date
L-\
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- 1 -
WORK SHEET f 1 - FORM A
_ FORM A _
FCR. KMja/uaB UMZR EPA ORDER 3500.1
The purpose of this form is to document that the inspector or first-
line supervisor is both eligible (as defined by EPA Order 3500.1 for the
categories of "new" and "experienced" inspectors) and qualified to request
approval of an exception. This form may be used alone or in conjunction with
other documentation, such as certificates of completed training, depending on
the level of detail required by the approving official. Refer to the General
2, for the principles to follow in assessing previous training and/or
experience. A sample fora has been completed for an "experienced" inspector
assigned to the RCRA Piuuram in Region m.
GEHERftL TNKMKTIQN! There are three major items, as follows. 1. Enter
employee name, organization, and program assignment. 2. Check whether the
individual is new or experienced, as defined by EPA Order 3500.1; also, check
whether the individual is an inspector or a supervisor. 3. Under Duties: For
the inspector, briefly state the types of compliance inspections. Par the
supervisor, indicate what inspection pj,oytams and/or ease development work s/he
.Under this column heading, list the applicable training
requirements for which the individual is seeking an exception, including the
Basic Curriculum, Health and Safety Training under 1440.2 and/or 1440.3, and
Program-Specific Minimal Training.
PREVIOUS TRAINING: Under this column heading, check the type(s) of training,
supervised self-study, cn-the-job training arid/or classes that satisfies the
requirement.
PREVIOUS EXPERIENCE: Place a check under this column heading, if previous exp-
erience is the h*gi? for the exception.
Under this column heading, briefly describe the previous training
and/or experience that is the basis for the exception. If more space is
needed, attach a separaaaate separate written statement, signed by the first
line supervisor, describing the following documentation as appropriate. For
example, if comparable classroom training was offered through the Region,
please provide the sponsor name, data(s) of attendance and location of the
class. Also, attach a copy of the certificate of completion if the inspector
received one.
A.3.a ***• ^F gTOCY KXMiPl'lfl'58 Dates and circumstances where the inspector
gained familiarity with the self study materials cited above (See Section
A.3.a, Work Sheet * 1, page 5).
A.3.b FOR QN-flHE-JOB TSAIKPC Ey^'PTICKS: Provide location and exact dates
when the inspector has been assigned to coach or train other inspectors in the
inspection planning, on-site and follow-up techniques for an NPDES Inspections.
Describe field work involved and indicate type and number of inspections (GEE,
CSX, or RI where applicable), and whether they involve municipal or
nonmunicipal facilities. How long has the employee been conducting inspections?
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- 2 -
WQPK SHEET f 1 -
A.3.c mgMBmaacH POP; Mpccs a*sfiWMf ygpJCSHPPs ExagntMS; provide the
date, location, and aponnar of the workshop/ class the inspector has had that
is comparable to the Introduction to NPCES Inspections workshop/ classroom
training. This information nay be contained on an attached copy of the
certificate of conpletion.
VI. sgaaagg; Each form should be signed by the inspector or first-line
supervisor, the supervisor who is recoanending the request be approved, and by
the approving official, in accordance with procedures established within the
Region for requesting an
-------
WORK SHEET * 2
-------
J
-------
WORK SHEET f 2
GUIDELINES OH NPDES INSPECTOR TRAINING - WORK SHEET FOR SKILLS
EXPANSIOff/SraCIALIZBD TRAINING FOR MPDES/PRETREATMZNT INSPECTIONS
Employee Name Organization
(See Page 3 for explanations and instructions.)
B. SCOPE OF SKILLS EXPANSION/SPECIALIZED TRAINING PROGRAM: This
training program vill assure that inspector is able to lead or
independently conduct the following types of inspections:
- Toxic Sampling Inspection (XSI)
- Biomonitoring Compliance Inspections (CBI)
- Pretreatment Compliance Inspection (PCI)
- Performance Audit Inspections (PAI)
- Diagnostic Inspections (DI)
- Other (Offshore drilling rig
CEIs (0-CEI) ;PCI~ for ID's,etc.)
TOPIC/ACTIVITY TRAINING
TARGET ACTUAL
COMPLETION COMPLETION
B.I Self Study DATE DATE
Using the NPDES Compliance
Inspection Manual (1988), with self
study guide, in depth study
of appropriate chapters. May also
study the Act regulations and
pertinent current guidelines.
1) XSI
2) CBI
3) PCI
4) PAI
5) DI
6) Other (As CEI-
drilling rig;etc.)
-------
- a -
Work Sh^ffc J 2 Cant.. TRAINING
COMPLETION ACTUAL
TARGET COMPLETION
DATE DATE
B.2 On the Job Training:
Supervised inspections - two of each type with the inspector
performing all functions with coaching by an experienced
inspector.
1) XSX _
2) CBI _
3) PCI _
4) PAI _
5) DI
6) Other (CEI-drill _
rig; PCI-IU; etc.)
B.3 Classes/Workshops
B.3.a Pretreatment Compliance Inspection
workshops, with two one-day workshops
possible - one on concentrating on POTff's;
and one on Industrial Users.
(Through OWEP contract or Regional
in-house effort.)
(PCI) _
(PCI-ID)
B.3.b Diagnostic Compliance Inspection
Workshop - basic skills or more
advanced skills coverage, through
the OWEP Contract or through Regional
in-house training.
B.3.c Other Training Classes Assigned
within the Region (such as on advanced
wastewater treatment).
Signature of First Line Supervisor Date
Organization
-------
- 3 -
WORK SHEET 02- INSTRUCTIONS
B. The skills expansion and specialized training is generally
provided after completion of the NPDES Minimum Training for
inspectors. However when scheduling of workshops and other
training experiences are constrained by availability and budget,
some portions of the workshops, OJT, and self study may need to
be scheduled simultaneously with the NPDES Minimum Training.
In addition it should be noted that where a new inspector
has not been identified as an inspector who will not be needed
for covering compliance sampling inspections, the OJT sampling
inspections may be postponed until such time as the inspector
will need the compliance sampling skills. Thus self study,
classroom training and OJT for diagnostic inspections and
pretreataent compliance inspections may precede certain portions
of the minimum training for conducting sampling inspections.
For all specialized training (under B.I, B.2, and B.3),
the target date should be listed in the first column. After the
training is completed the actual completion date should be listed
in the second column.
B.I The Inspection Manual (1988) forms the primary self study
material. In addition pertinent portions of the Clean Water Act
and applicable portions of the regulations may need to be
reviewed.
B.2 During the OJT portions 'of the training program, the
inspector is performing all elements of the inspection with
coaching of an experienced inspector. Before being qualified to
lead or independently conduct the inspection, indicated under
Section B, the inspector must have completed at least two and
often more of that particular type of inspection while receiving
coaching from an experienced inspector.
B.3 Self explanatory.
-------
-------
APPENDIX
-------
-------
GUIDELINES ON NPDES INSPECTOR TRAINING - SUMMARY of WORK
SHEETS (OPTIOHAL) ON EMPLOYEE'S NPDES INSPECTOR TRAINING
Employee Date
Organization New [ ] Experienced [ ]
EXPERIENCE - Inspections conducted in the previous fiscal year.
List inspection nunbers:
CEI XSI CBI ; PAI PCI
CSI RI DI Other
A. MHHMOM TRAINING - Dates Completed
Class/Wkshop Self Study OJT
A. 2 Fundamentals N/A~ N/A
Health and
Safety 1440.2 N/A N/A
1440.3 N/A N/A
A.3 NPDES - Program Minimum
- CBI
- CSI
- RI
B. SPECIALIZED TRAINING - Date Completed
Type Class/Wksp Self study OJT
XSI
CBI
PCI
PAI
DI
Other* '
ADDITIONAL HEALTH AND SAFETY - Date Completed
Type Required (including Class/Workshop
refresher training)
Signature of Supervisor Date
A - I
-------
INSTRUCTIONS - NPDES GUIDELINES ON INSPECTOR TRAINING
SUMMARY OF WORK SHEETS
The summary sheet provides space for recording only the
completion date of the training indicated. It summarizes both
the NPDES Minimum Training and the specialized training dates,
where the supervisor wishes to keep a record of all training
provided.
This Summary should only be utilized as a synopsis of the NPDES
Work Sheets fl and f 2, and as appropriate the generic form on
health and safety provided by Office of Enforcement and
Compliance Monitoring. This summary should be filled out only
after providing documentation on Work Sheets f 1, and I 2. At
the bottom of the Summary is space for health and safety training
that is to be taken in addition to the basic health and safety
under Section A.2.
A - 2
-------
SUMMARY OF WPDES
TJIAINXNG PROGRAM DESCRIPTION
A.
1 Th« VfBIS Training Program sstablishes a core program, of
; coursevorK, salt instruction and on- the -job training (OJT) for
those individuals who carry out XPDES compliance/enforcement
aetivitiaa for SPA. Thia summry describes a sequence for new
inspectors, and for expansion of skills latar on. After
completion of Basic Training and Introductory NPOES training,
aelf-inetruction and OJT, ths inspector should b« abls to conduct
ths coapliancs avaluatlon inspection and ths sampling inspection.
Tho goal is for aaeh n«v inspector to complete this sequence
within aix to nine months on the job. Job skills can than be
expanded through sera study and instruction into araaa such as
performance audit, pretreataant,and diagnostic inspections.
The figure belov shows the plan in summary fashion. in
order to gat a copy of the complete MPDts Training Program
Description, contact: Director, Enforcement Division, Office of
Water Enforcement and Permits, HQ (EH-331), US EPA, 401 M Street,
SW, Washington, D.C. 20460. ITS 475-8310.
MPDtS Training Plan
General Orientation
Ceur«e«/Werkshoas | Self Instruction /QJT
,
Basic Inspector Curriculum . CWA and Regulations
HPDES Introductory Coursevork Violation Recognition
(Manuals available by 4/il) Sampling Techniques
Manuals for Introduction
to Compliance Znapections
Plow Measurement Manual
OJT* a inspections aaeh
for compliance evaluation
and compliance sampling
inspections
•kills Expansion
*
PratreatMnt Inspection Pretreatment Guidance
workshop Pretreatment Compliance
Inspection and Audit Manual
Diagnostic Inspection Inspector's Guide for Evalu-
workshop ating Municipal Waatawater
Treatment Planta
A - 3
\
-------
Toxics Sampling OJT-Biomonitoring, toxic*
sampling and pretreatment
inspections
(To be developed)
•peeialiied Skill*
Offshore Drilling nig Inspections
(to bo developed)
Criminal Investigations (FLETC, Glynoo, CA)
urn
Tito following materiele for tho now inspector should bo
ovs .lablo from tho inspector's first-lino supervisor or tho
addresses footnoted bolov.
o Cenersl QgJentstieji Package
• Organisation chart
- Clean Water Act and regulations
- KPDES inspection Strategies and Guidance ouch as tho Clean
water Act Compliance/ Enforcement Compendium
- Sample HPOES inspection reports
- Description of HQ/Xegional/State relationships *
• NPOES Compliance Inspection Manual
o Introduction to MPDtS Inspections {Available 4/ill
- NPOES Compliance Monitoring Inspector Training Modules 1
— Overview (draft)
— Legal loouoo (draft)
— sampling (draft)
~ Laboratory Analysis (under development)
— Biomonitoring (under development)
Order •
- field Manuals for Solf Instruction and OJT HTIS IRC2
-- MPOXS Coaplianeo Inspection Manual PBiS115t«7 068V
Flow Measurement Manual PBl213ll7i/xs osou
— ProtrsjotDont Inopoctiono
— Frotroataent Coapliance Monitoring and Enforcement
cuidanco (July Itti)
— Protroataont Compliance inspection and Audit
Manual for Approval Authorities (July 1M«)
* Diagnostic Inspect iono
— Inspectors Guide for Evaluation of Municipal 02 lu
tfaotewatar Treatment Plants, EPA/430/9-79-010
(April It7t)
A - 4
-------
II. NPDES PROGRAM; PRE-ENFORCEMENT
C. MEASURING COMPLIANCE/DATA PROCESSING
-------
-------
II.C.I,
# "PERMIT COMPLIANCE SYSTEM DATA ENTRY, EDIT AND UPDATE MANUAL; INQUIRY
USER'S GUIDE; PCS GENERALIZED RETRIEVAL MANUAL; EDIT/UPDATE ERROR
MESSAGES,11 updated July, 1990. Table of Contents only.
-------
-------
PCS Data Entry* Edit, and Update Manual
Document Number PCS-DE90-2.01
July 2, 1990
PCS USER SUPPORT
202/475-8529
:U.S. EPA CEN-338)
401 M. St. SW
Washington, DC 20460
-------
-------
TABLE OF CONTENTS
1.0 NPDES Overview 1-1
1.1 PCS Overview 1-1
1.2 Overview of PCS Functional Capabilities 1-1
1.3 Input Processing 1-2
i.3.1 PCS Data Entry 1-2
1.3.1.1 Batch Data Entry 1-3
1.3.1.2 Dn-Une Data Entry 1-3
1.3.2 Edit Processing 1-4
1.3.3 Update Processing 1-4
1.3.3.1 Update Audit Report 1-4
1.3.3.2 Violation Recognition Report 1-5
1.3.3.3 Administrative Deficiency Report . 1-5
2.0 MAINTENANCE OF THE PCS DATA BASE 2-1
2.1 PCS Data Types 2-1
2.1.1 Organization of Data in PCS 2-3
2.2 Key Data Elements 2-5
2.3 PCS Transactions , . 2-11
3.0 PCS-ADE ON-LINE DATA ENTRY 3-1
3.1 PCS-ADE General Features 3-1
3.1.1 Access to PCS-ADE 3-1
3.1.1.1 Logon Procedure to CICS using Full-screen Ter-
minal w/ Direct Connect 3-2
3.1.1.2 Logon Procedure to CICS using Full-screen Ter-
minal w/ TYMNET Connect 3-4
3.1.1.3 Procedure to Exit CICS 3-5
3.1.2 Input 3-6
3.1.3 Transaction Codes 3-7
3.1.4 Key Data Elements 3-8
3.1.5 Edit Checking 3-8
3.1.6 Error Messages 3-9
3.1.7 Special Accept Options 3-9
3.1.7.1 'CYCLE' Accept Option . . 3-9
3.1.7.2 'KEEP KEY* Accept Option 3-10
3.1.7.3 'RETAIN* Accept Option 3-10
3.1.8 Automatic 'CHANGE' Option 3-10
3.1.9 Security 3-11
3.1.10 Batch ID Number 3-11
3.2 Data Entry Screens 3-12
3.2.1 Main Menu Screen • . 3-13
3.2.2 Facility Data Screen #1 (FAC1) 3-14
3.2.3 Facility Data Screen §2 CFAC2) 3-17
3.2.4 Facility Address Screen (FACA) 3-19
3.2.5 Owner/Operator Address Screen (FACO) 3-21
3.2.6 Reissuance Data Screen CRCIN) 3-23
3.2.7 Inspection Screen (INSP) 3-25
3.2.8 Inspection Scheduling Screen CINSS) 3-28
3.2.9 Pretreatment Data Key Screens (PCI1, PCI2, PAUl,
PAU2, PAU3) 3-30
Table of Contents iv
-------
-------
4
4
4
4
3.2.10 Pretreatment Compliance Inspection Screen 1 (PCI1)
3.2.11 Pretreatment Compliance Inspection Screen 2 (PCI2)
3.2.12 Pretreatment Audit Screen 1 CPAU1)
3.2.13 Pretreatment Audit Screen 2 (PAU2)
3.2.14 Pretreatment Audit Screen 3 (PAU3)
3.2.17 Compliance Schedule Violation Screen (CVIO)
3.2.18 Permit Tracking Screen CPTRK) ...
3.2.19 Evidentiary Hearing Screen (EVHR)
3.2.20 Grant Screen (GRNT)
3.2.21 Outfall General Data Screen (OFLG)
3.2.22 Outfall Treatment Type/Comment Screen (OFLT) .
3.2.23 Limits Screen (1 I MS)
3.2.24 Limit Modification Screen (LIMM)
3.2.25 Season Split Screen (SEAN)
3.2.26 Effluent DMR Data (EDMR)
3.2.27 Effluent Measurement Screens (EVIO)
3.2.29.2 Data Screens
3.2.30 Administrative Penalty Order Screen CEAP1) . .
3.2.31 Administrative Penalty Order Screen (EAP2) . .
3.2.32 Single Event Violations Screens (SVIO) ....
3.2.33 PCS Table Modification Screen (TABS)
3.2.35 Exiting from a PCS-ADE Session
.0 PCS PC-ENTRY MICROCOMPUTER DATA ENTRY
.1 PCS PC-ENTRY General Topics .....
4.1.4 Key Data Elements
4.1.5 Edit Checking
4.1.7 Batch Header Card/Security Id
.2 Equipment Description for PCS PC-ENTRY .
4.2.2.1 ASCII TTY Mode ( Li ne-by-Line)
.3 Installing PCS PC-ENTRY on a Microcomputer ....
3-32
3-35
3-38
3-41
3-44
3-47
3-49
3-51
3-53
3-55
3-57
3-59
3-62
3-64
3-66
3-69
3-71
3-71
3-72
3-75
3-75
3-77
3-80
3-83
3-83
3-88
3-93
3-95
3-97
3-99
3-99
3-100
3-105
3-105
$-!
4-1
4-2
4-2
4-2
4-3
4-3
4-3
4-4
4-4
4-5
4-5
4-6
4-6
4-6
4-7
4-7
4-10
4-11
Table of Contents
-------
4.3.1 How to Get a Copy of the PCS PC-ENTRY System . 4-1
4.3.2 System Pile Description 4-1
4.3.3 Harddisk System Installation 4-12
4.3.4 Floppy System Installation ..... 4-13
4.3.5 Special Note on Installing New Releases .... 4-13
4.3.6 Entering Data using PCS PC-ENTRY 4-14
4.3.7 General Screen Features 4-14
4.3.8 Getting Started 4-15
4.3.8.1 Harddisk System 4-15
4.3.8.2 Flopp'y System 4-15
4.3.9 Description of Information On System Screens . 4-16
4.3.10 Introduction Screen and Parm File 4-17
4.3.11 MAIN FUNCTION MENU CHAIN) 4-18
4.3.11.1 GENERAL INFORMATION Function (H> 4-19
4.3.11.2 SYSTEM SETUP Function
-------
4.4.1 Basic Requirements for Uploading Data ....
4.4.2 Description of Communications Software Available
for Uploading Data
5.0
5.1
5.2
5.3
5.3
5.3
5
5
5
5
5
5
5
5
5.3
5
5
5
5
5
5
5
5
5
5
5
5
5
5
5
5
5
5
BATCH DATA ENTRY
Transaction Codes
Key Data Elements
Batch Card Formats .
.1 Header Card
.2 Original Card Formats
.3.2.1 Permit Facility Data Cards
.3.2.2 Compliance Schedule and Permit Tracking Event
Data Cards
.3.2.3 Compliance Schedule Violation Data Cards
Inspection Data Cards
Pipe Schedule Data Cards
Parameter Limits Data Cards .
Measurement/Violation Data Cards
Enforcement Action and Enforcement Action Vio-
lation Key Data Cards
.3 Extended Card Formats
.3.3.1 Permit Facility Data Cards
Reissuance Card -
Inspection Data Cards
Inspection Schedule Data Cards
PCI/Audit Data *
Pretreatment Performance Summary (PPS) Data
Compliance Schedule Data Cards
Compliance Schedule Violation Data Cards .
Permit Tracking Data Card
Evidentiary Hearing Data Cards
Brant Data Card
Pipe Schedule Data Cards
Parameter Limits Data Cards
Measurement/Violation Data Cards
Enforcement Action Data Cards ......
Enforcement Action Violation Key Data Cards
Administrative Penalty Order Data Cards
Single Event Violation Data Cards ....
.3.2.4
.3.2.5
.3.2.6
.3.2.7
.3.2.8
.3.3.2
.3.3.3
.3.3.4
.3.3.5
.3.3.6
.3.3.7
.3.3.8
.3.3.9
.3.3.10
.3.3.11
.3.3.12
.3.3.13
.3.3.14
.3.3.15
.3.3.16
.3.3.17
.3.3.18
6.0
6.1
6.
6.
6.
6.
6.
6.2
6.
CODING CONSIDERATIONS
Transaction Codes
1
2
3
4
5
(X)
NEN Transactions (N)
CHANGE Transactions (C)
DELETE Transactions (D)
MASS DELETE Transactions
REPLACE Transactions (R)
Coding Considerations by Data Type ....
2.1 Permit Facility Data Type
Inspection Data Type
Inspection Scheduling Data Type ....
PCI/Audit Data Type
Administrative Penalty Tracking Data Type
Pretreatment Performance Summary Data Type
.2.2
,2.3
,2.4
2.5
,2.6
4-101
4-101
, 5-1
. 5-2
. 5-3
. 5-7
. 5-7
, 5-8
, 5-8
5-16
5-17
5-18
5-19
5-22
5-24
5-25
5-30
5-30
5-37
5-38
5-39
5-41
5-45
5-46
5-47
5-49
5-50
5-50
5-51
5-53
5-59
5-61
5-63
5-64
5-69
6-i
6-i
6-1
6-2
6-3
6-4
6-4
6-5
6-5
6-16
6-19
6-21
6-22
6-23
Table of Contents
vii
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6.2.7 Compliance Schedule Data Type 6-"
6.2.8 Compliance Violation Data Type 6-
6.2.9 Permit Events Data Type 6-30
6.2.10 Evidentiary Hearing Information 6-32
6.2.11 Pipe Schedule Data Type 6-33
6.2.12 Parameter Limits Data Type 6-41
6.2.13 Measurement Violation Data Type 6-50
6.2.14 Enforcement Action Data Type 6-54
6.2.15 Enforcement Action Violation Key Data Type . . 6-56
6.2.16 Single Event Violation Data Type 6-58
6.3 Permit Reissuance Processing 6-59
6.3.1 Effluent Data Family Relationships 6-59
6.3.2 Effluent Family Linkage 6-60
6.3.3 Reissuance Control Indicator 6-61
6.3.4 Reissuance Rules and Automatic Processing . . . 6-62
6.4 Archival Processing 6-65
6.5 User Data Elements 6-66
7.0 PCS EDIT/UPDATE PROCESSING 7-1
7.1 Pre-Edit Conversion Processing 7-1
7.1.1 Permit Facility Data Conversion Processing . . . 7-2
7.1.2 Permit Event Data Conversion Processing 7-2
7.1.3 Pipe Schedule Data Conversion Processing .... 7-3
7.1.4 Parameter Limits Data Conversion Processing . . . 7-3
7.1.5 Measurement/Violation Data Conversion Processing 7-3
7.1.6 Compliance Schedule Data Conversion Processing . 7-4
7.1.7 Compliance Schedule Violation Data Conversion Proc-
essing 7-
7.1.8 Inspection Data Conversion Processing 7-5
7.1.9 Enforcement Action Data Conversion Processing . . 7-5
7.2 PCS Edit Processing 7-7
7.2.1 Edit Audit Report - Rejected Transactions .... 7-8
7.2.2 Edit Audit Report - Accepted Transactions . . . 7-10
7.2.3 Edit Audit Summary Report 7-11
7.2.4 Use of the Edit Audit Report 7-12
7.3 PCS Update Processing 7-12
7.3.1 Update Processing Input/Output 7-12
7.3.2 Update Audit Report - Rejected/Accepted Trans-
actions 7-13
7.3.3 Violations Recognition Report 7-14
7.3.4 Administrative Deficiency Report 7-16
8.0 PCS SPECIAL PROCESSING 8-1
8.1 Compliance Schedule Violation Tracking 8-1
8.1.1 Types of Violations 8-1
8.2 Discharge Monitoring Report CDMR) Non-receipt Tracking 8-3
8.3 Effluent Measurement Violation Tracking . 8-4
8.4 QNCR Reportable Noncompliance (RNC) Identification . 8-8
8.4.1 RNC Data Elements - Input Considerations .... 8-8
8.4.2 PCS Production Runs that Detect/Resolve RNC . . . 8-9
8.4.3 Single Event Violations Independently Determined
by The Agency 8-1
8.4.4 Automatic Detection/Resolution of RNC for Vio-
lations 8-1
Table of Contents viii
-------
8.4.4.1 Detection/Resolution of RNC - For Compliance
Schedule Violations 8-11
8.4.4.2 Detection/Resolution of RNC - For Effluent Vi-
olations 8-12
8.4.4.3 Detection/Resolution of RNC - For Non-Receipt
Violations 8-15
8.4.4.4 System Detection/Resolution of RNC - For In-
complete DMR Violations 8-16
8.4.5 System Detection/Resolution of RNC By Enforcement
Actions 8-16
8.4.5.1 Detection/Resolution of RNC By EA - For Com-
pliance Schedule Viols 8-16
8.4.5.2 Detection/Resolution of RNC By EA - For DNR
Violations 8-18
8.4.5.3 System Detection/Resolution of RNC by Interim
Limits in an EA 8-19
8.4.5.4 Turning off RNC for Effl. Vio. M/ Extended
Compliance Schedules 8-20
8.4.6 Manual Setting of RNC 8-21
8.4.7 RNC Data Elements - Retrieval Condi derations . 8-21
8.4.7.1 RNC Detection Codes 8-22
8.4.7.2 RNC Resolution Codes 8-24
8.4.8 RNC Detection and Resolution Dates 8-25
8,.4.9 QNCR Facility Status 8-27
8.4.9.1 QNCR Facility Status Acronyms 8-27
8.4.9.2 Determination of Facility Statusv 8-28
8.4.9.3 Manual Entry of Facility Status Codes - Batch
Format 8-28
8.4.9.4 Manual Facility Status Codes - Values . . . 8-30
8.4.10 RNC Coding Considerations 8-30
8.4.10.1 Resolved Pending Resolution of RNC Viols, by
Enforcement Action ......... 8-31
8.4.10.2 Resolution by Closure of an Enforcement Action 8-41
8.4.10.3 Manual Detection/Resolution of RNC Violations 8-45
8.4.10.4 Back Into Compliance Resolution 8-56
9.0 Using TSO With PCS 9-1
9.1 Activating Special PCS/ISO Contends 9-1
9.1.1 New Users (NEHUSER) 9-1
9.1.2 STORET Users 9-2
9.2 ISPF PCS Menu 9-2
9.3 Summary of PCS/TSO READY Prompt Commands ...... 9-2
9.3.1 Online HELP available on PCS/TSO Commands .... 9-4
9.4 Editing PCS Data Using the PCS/TSO Command CPCSEDIT) 9-5
A.O APPENDICIES Append-1
Appendix A. Introduction to the NPDES Permit Issuance for PCS
User* . A-l
Appendix B. Telephone Numbers B-2
Appendix C. TYMNET Full-Screen Key Conversion for VT-100
Terminals CEPACMT) C-l
Table of Contents ix
-------
Appendix D. QNCR Category Noncompllance D-l
D.I QNCR Category I D-l"
D.2 QNCR Category II D-l
Appendix E. PCS PC Software available online at NCC . . . E-l
Appendix P. Using KERMIT to Upload/Download Files .... F-l
F.I Instructions for downloading the PCS PC Software with
KERMIT F-l
F.2 Using KERMIT to upload PC-ENTRY data files F-3
F.2.1 Harddisk System F-3
F.2.2 Floppy System F-6
F.2.3 KERMIT Command Summary F-8
F.2.* Submitting PCS Edits on the Mainframe F-9
Appendix G. Using CROSSTALK to Upload/Download Files . . . 6-1
G.I Instructions for downloading the PCS PC Software with
KERMIT G-l
6.2 Using CROSSTALK to upload PC-ENTRY data files .... 6-1
Appendix H. Using ARBITER to Upload/Download Files .... H-l
H.I Instructions for downloading the PCS PC Software with
ARBITER H-l
H.2 Using ARBITER to upload PC-ENTRY date files H-2
Appendix I. Using SEND/RECEIVE to Upload/Download Files . 1-1
I.I Instructions for downloading the PCS PC Software with
RECEIVE Cmd ..... 1-1
1.2 Using SEND command to upload PC-ENTRY data files . . 1-2
Appendix J. Using COMPRESSED PC Software files CPKARC) . . J-l
Appendix K. PCS User Comments K-l
Table of Contents
-------
PCS INQUIRY U««r'l Gulda
Document Number PCS-IN90-2.01
July 2, 1990
PCS USER SUPPORT
CFTS/202)475-8529
U.S. EPA CEN-338)
401 N. St. SU
Washington, OC 20460
-------
TABLE QP CONTENTS
1.0 INTRODUCTION TO PCS INQUIRY
1.1 PCS Data Base
1.2 PCS capabilities
2.0 PCS INQUIRY LOGON/LOGOFF PROCEDURES
2.2 Accessing PCS INQUIRY
2.3 Exiting PCS INQUIRY
3.0 INITIATING AN INQUIRY SESSION
3.1 Entering PCS INQUIRY
3.2 SELECTING MANAGERS MODE, PROMPT MODE OR COMMAND MODE
3.2.1 Selecting MANAGERS Mode ("M")
3.2.2 Selecting PROMPT Mode ("P")
'3.2.3 Selecting COMMAND Node ("C")
3.2.4 Requesting Help ("?**)
3.3 PCS SECURITY
3.4 INQUIRY KEYBOARD FUNCTIONS
4.0 CONDUCTING AN INQUIRY SESSION IN MANAGERS MODE . .
4.1 Producing a MANAGERS Mode Report
4.1.1 Creating a Set using the Set Maintenance Option
4.1.2 Creating a Set using Primary Selection Criteria
4.1.3 Selecting a MANAGERS Mode Report
4.1.4 Verifying the Report Selection Criteria ....
5.0 INQUIRY MANAGERS MODE REPORTS
5.1.1 Facility Directory Selection Criteria
S.I. 2 Facility Directory Output
5.2.1 Facility Overview Report Selection Criteria . .
5.2.2 Facility Overview Report Output
5.3.1 Permit Event Report Selection Criteria . . . .
5.4.1 Inspection Scheduling Report Selection Criteria
. l-l
. 1-1
. 1-2
. 1-3
. 1-7
. 1-7
. 2-1
. 2-1
. 2-6
. 2-7
. 3-1
. 3-1
3-1
. 3-1
. 3-2
." 3-2
. 3-3
. 3-3
. 3-3
. 4-1
. 4-1
. 4-2
4-12
4-24
4-34
4-34
4-35
4-37
. 5-1
. 5-2
. 5-2
. 5-3
. 5-4
. 5-4
. 5-5
5-12
5-13
5-14
5-16
5-16
5-17
5-20
5-20
5-21
5-24
Table of Contents 1v
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PCS Generalized Retrieval Manual
Document Number PCS-BR90-3.01
July 2, 1990
PCS USER SUPPORT
202/475-8529
U.S. EPA (EN-338)
401 M. St. SH
Washington* DC 20460
-------
TABLE OF CONTENTS
1.0 introduction 1-1
1.1 PCS System Overview 1-1
1,2 PCS Security and Privacy 1-1
1.3 Using the Manual 1-2
2.0 Data Overview 2-1
2.1 Data in PCS 2-1
2.2 Organization of PCS 2-5
3.0 Retrieval Descriptions ..... 3-1
3.1 Quick Look Report 3-1
3.1.1 Cluster Quick Look Report 3-1
3.1.1.1 Single Family Cluster Format ... 3-1
3.1.1.2 Multi-Family Cluster Format ... 3-2
3.1.2 Hierarchical Quick Look Report 3-2
3.1.2.1 Compliance Schedule Hierarchical Format . . . 3-2
3.1.2.2 Effluent Hierarchical Format 3-3
3.1.2.3 Inspection Hierarchical Format ....... 3-3
3.1.2.4 Enforcement Action Hierarchical Format . . . 3-3
3.2 Milestone Report 3-4
3.3 Facility Report . 3-4
3.4 Compliance Forecast Report 3-4
3.5 Compliance Forecast with Violations Report 3-5
3.6 Limitation Summary Report 3-
3.7 Limitation Summary with Measurement Violations Report 3-
3.8 DMR Administrative Report 3-5
3.9 DMR Administrative Report by Parameter 3-6
3.10 DMR Summary Report 3-6
3.11 DMR Forecasting Report 3-6
3.12 Quarterly Noncompliance Report (QMCR) 3-6
3.13 Selective Quarterly Noncompl1ance Report ..... 3-15
3.14 Summary Quarterly Noncompliance Report For Managers 3-15
3.15 Coordinator's Quarterly Non-Compliance Report . . 3-18
3.16 Semi-Annual Statistical Summary Report 3-19
3.17 Violations Recognition Report 3-21
3.18 DMR Package 3-21
3.19 Mailing Labels 3-21
3.20 Sequential File Extracts 3-22
3.21 Quick File Extracts 3-22
3.22 Industrial User Compliance Report 3-22
3.23 POTN Implementation Compliance Report 3-23
3.24 POTM Enforcement Action Summary Report 3-23
3.25 Pretreatment Hierarchy Report . . 3-23
3.26 PCS Effluent Data Statistics (EDS) 3-24
3.27 Management Graphics Package ... 3-24
3.28 Strategic Planning and Management System Moving Base
Report 3-26
3.29 Procedures For Loading PAL With Current PCS Data . 3-28
3.29.1 Downloading PAL from the NCC Mainframe .... 3-28
3.29.2 Loading PAL on a PC 3-
Table of Contents iv
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5.6.1 Compliance Schedule and Violations Report Selection
Criteria 5-24
5.6.2 Compliance Schedule and Violations Report Output 5-26
5.7 Enforcement Action Report 5-29
5.7.1 Enforcement Action Report Selection Criteria . 5-29
5.7.2 Enforcement Action Report Output 5-30
5.8 Outfall Limits Report 5-34
5.8.1 Outfall Limits Report Selection Criteria . . . 5-34
5.8.2 Outfall Limits Report Output 5-35
5.9 DMR Overview Report 5-39
5.9.1 DMR Overview Report Selection Criteria .... 5-39
5.9.2 DMR Overview Report Output 5-41
5.10 Evidentiary Hearing Report 5-43
5.10.1 Evidentiary Hearing Report Selection Criteria 5-43
5.10.2 Evidentiary Hearing Report Output 5-44
6.0 CONDUCTING AN INQUIRY SESSION IN PROMPT MODE .... 6-1
6.1 Producing a PROMPT Mode Report 6-1
6.1.1 Selecting a PROMPT Mode Report 6-2
6.1.2 Specifying Selection Criteria 6-3
6.1.3 Verifying Selection Criteria .... 6-12
6.1.4 Tally 6-12
6.1.5 Display the Report Output Data 6-14
6.2 PROMPT Mode Reports - Common Features 6-16
7.0 INQUIRY PROMPT MODE REPORTS 7-1
7.1 Code and Description Report ..... 7-2
7.1.1 Code and Description Report Output 7-3
7.2 Facility Directory Report 7-4
7.2.1 Facility Directory Selection Criteria 7-4
7.2.2 Facility Directory Output 7-5
7.3 Facility Overview Report 7-7
7.3.1 Facility Overview Report Selection Criteria . . . 7-7
7.3.2 Facility Overview Report Output 7-8
7.4 Outfall Limits Report 7-17
7.4.1 Outfall Limits Report Selection Criteria . . . 7-17
7.4.2 Outfall Limits Report Output 7-18
7.5 DMR Overview Report 7-22
7.5.1 DMR Overview Report Selection Criteria .... 7-22
7.5.2 DMR Overview Report output 7-23
7.6 Compliance Schedule and Violation Report 7-25
7.6.1 Compliance Schedule and Violation Report Selection
Criteria 7-25
7.6.2 Compliance Schedule and Violation Report Output 7-27
7.7 Inspection Scheduling Report 7-30
7.7.1 Inspection Scheduling Report Selection Criteria 7-30
7.7.2 Inspection Scheduling Report Output 7-32
7.8 Inspection Report 7-34
7.8.1 Inspection Report Selection Criteria 7-34
7.8.2 Inspection Report Output 7-36
7.9 Permit Tracking Report .... 7-38
7.9.1 Permit Tracking Report Selection Criteria . . . 7-39
7.9.2 Permit Tracking Report output 7-40
7.10 Evidentiary Hearing Report 7-42
Table of Contents v
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7.10.1 Evidentiary Hearing Report Selection Criteria 7-42
7.10.2 Evidentiary Hearing Report Output '. 7-43
7.11 Enforcement Action Report 7-45
7.11.1 Enforcement Action Report Selection Criteria . 7-45
7.11.2 Enforcement Action Report Output 7-46
8.0 CONDUCTING AN INQUIRY SESSION IN COMMAND MODE .... 8-1
8.1 INQUIRY Commands 8-2
8.1.1 "?" Help Command 8-3
8.1.2 SELECTION Command 8-4
8.1.3 MORE TO SELECT Command 8-6
8.1.4 SORT command 8-6
8.1.5 DISPLAY command 8-7
8.1.6 TALLY Command 8-8
8.2 PROMPT <"P") Command 8-9
8.3 QUIT "Q" Command 8-9
8.4 Data Elements/Acronyms 8-9
8.4.1 Key data elements 8-10
8.5 INQUIRY Operators 8-10
8.6 Values 8-11
8.7 Producing a Report • 8-11
A.O APPENDICIES A-l
Appendix A. PCS User Comments A-l
Table of Contents
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3.30 Personal Assistance Link (PAL) Extract 3-29
3.31 Administrative Penalty Order 3-29
4.0 Retrieval Specification 4-1
4.1 Card Images 4-1
4.2 Retrieval Selection 4-1
4.2.1 Basic Argument 4-2
4.2.2 Qualified Argument 4-5
4.2.3 Comparison Argument 4-7
4.2.4 "OR" Statement 4-9
4.3 Report Order 4-10
4.4 Report Outputs 4-14
4.4.1 Quick Look Report 4-17
4.4.1.1 Cluster Quick Look Report 4-18
4.4.1.2 Hierarchical Quick Look Report 4-20
4.4.1.3 Pretreatment Hierarchical Quick Look Report 4-25
4.4.1.4 Quick Look Options 4-27
4.4.2 Milestone Report 4-36
4.4.3 Facility Report 4-38
4.4.4 Compliance Forecast Report 4-39
4.4.5 Compliance Forecast With Violations Report . . 4-39
4.4.6 Limitation Summary Report . 4-40
4.4.7 Limitation Summary Hith Measurement Violations Re-
port 4-41
4.4.8 DMR Administrative Report 4-42
4.4.9 DMR Administrative Report By Parameter .... 4-42
4.4.10 OMR Summary Report 4-43
4.4.11 DMR Forecasting Report 4-44
4.4.12 Quarterly Noncompl1ance Report . 4-45
4.4.13 Selective Quarterly Noncompl1ance Report . . . 4-45
4.4.14 Summary Quarterly Noncompliance Report For Manag-
ers 4-46
4.4.15 Coordinator's Quarterly Noncompliance Report . 4-47
4.4.16 Semi-Annual Statistical Summary Report .... 4-48
4.4.17 Violations Recognition Report 4-48
4.4.18 DMR Package 4-49
4.4.18.1 Two-Step DMR Creation 4-50
4.4.18.2 One-Step DMR Creation 4-51
4.4.19 Mailing Labels 4-54
4.4.20 Sequential File Extract 4-56
4.4.21 Quick File Extract 4-58
4.4.22 Industrial User Compliance Report 4-62
4.4.23 POTH Implementation Compliance Report .... 4-63
4.4.24 POTH Enforcement Action Summary Report .... 4-65
4.4.25 Pretreatment Hierarchy (PH) Report 4-66
4.4.26 PCS Effluent Data Statistics 4-68
4.4.26.1 Report Types 4-69
4.4.26.2 EDS Parameters 4-71
4.4.26.3 pisplaying Graphs Online 4-76
4.4.27 PCS Management Graphics . 4-77
4.4.27.1 Displaying Graphs Online 4-79
4.4.28 Strategic Targeting Activities for Results System
Moving Base Rpt 4-79
Table of Contents
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4.4.29 Permit Compliance System Personal Assistance Link
Extract 4-8
4.4.30 Administrative Penalty Order Report 4-82,
4.5 Multiple-Report Retrievals 4-84
4.6 Report Title 4-85
4.7 Option Card COO-Card) 4-86
4.7.1 SYNTAX- 4-87
4.7.2 JOBID- 4-88
4.7.3 BIN- 4-88
4.7.4 RMT« 4-89
4.7.5 COPIES' 4-89
4.7.6 PRTY- 4-90
4.7.7 TIME- 4-90
4.7.8 6PRT- 4-91
4.7.9 SDVCE- 4-91
4.7.10 6RMT- 4-91
4.7.11 GBOX- 4-92
4.7.12 LINES- 4-92
4.7.13 FORM- ...... 4-92
4.7.14 Option Card Examples 4-92
4.8 JCL Card (09-Card) 4-93
5.0 Processing • Retrieval 5-1
5.1 Formatting and Ordering of Retrieval Records .... 5-1
5.1.1 Option Card (00-Card) 5-1
5.1.2 Title Line COl-Card) 5-1
5.1.3 JCL Card (09-Card) 5-2
5.1.4 Selection Statements ClO-Card) 5-
5.1.5 "OR" Statement (11-Card) 5-
5.1.6 Report Type (20-Card) 5-3
5.1.7 Sort Statements (30-Card) 5-3
5.1.8 Quick Look Statements (40-Card) 5-4
5.1.9 Milestone Statements (50-Card) ... 5-4
5.1.10 Quick File Extract Statements (60-card) .... 5-4
5.2 Entering the Retrieval Cards into the Computer . . . 5-5
5.2.1 Accessing the NCC - IBM Computer System 5-5
5.2.2 Using TSO 5-5
5.3 Understanding the Generalized Retrieval Operation . . 5-6
5.4 Viewing the Generalized Retrieval Output 5-7
5.5 Processing DMRs and Mailing Labels 5-7
5.5.1 PCSADMR 5-8
5.5.2 PCSPDMR 5-9
5.5.3 PCSADMRL 5-10
5.5.4 PCSPDMRL 5-12
5.5.5 PCSALBL 5-13
5.5.6 PCSALBLA 5-15
5.5.7 JCL for Preprinting DMRs £-15
6.0 Retrieval Examples 6-1
6.1 Single Line Quick Look Report 6-1
6.2 Cluster Quick Look Report 6-1
6.3 Hierarchical Quick Look Report 6-1
6.4 Milestone Report 6-2
6.5 Cluster Quick Look Report Using Qualifying Argument . 6-
Table of Contents v
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6.6 Single-line "Quick Look Report" Using the Absent Logical
Operator 6-2
6.7 Quick Look Report Using the Comparison Argument . . • 6-3
6.8 Quick Look Report with Expanded Data Values 6-3
7.0 Retrieval Selection Efficiency Considerations .... 7-1
A.O APPEKDICIES Append-1
Appendix A. Figures A-l
Appendix B. Data Element Lists B-l
B.I Sorted by FILE and DATA ELEMENT NAME . , B-2
B.2 Sorted by FILE and DESCRIPTIVE HEADING B-49
Appendix C. Generalized Retrieval Error Messages C-l
Appendix D. Telephone Numbers D-l
Appendix E. Sequential File Extract - File Layout .... E-l
Appendix F. PCS Graphic Samples F-l
F.I PCS Effluent Data Statistics F-2
F.2 PCS Management Graphics F-3
Appendix 0. Ready Reference Guide . 6-1
Appendix H. PCS User Comments H-l
Table of Contents vfi
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PCS Edit/Update Error Messages
July 2, 1990
PCS USER SUPPORT
202X475-8529
U.S. EPA (EN-338)
401 M. St. SU
Washington, DC 20460
-------
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TABLE OP CONTENTS
1.0 General information 1-1
1.1 Error Message Categories 1-1
1.2 Definition of Fatal, Warning* and Informational Messages 1-3
1.3 Description of information provided on Error Messages 1-3
2.0 Compliance Schedule Error Messages . . 2-1
3.0 Compliance Schedule Violation Error Messages .... 3-1
4.0 Enforcement Action Error Massages 4-1
5.0 Evidentiary Hearing Error Messages 5-1
6.0 Enforcement Action Key Error Massages 6-1
7.0 Grant Error Messages 7-1
8.0 Inspection Audit Error Massage* 8-1
9.0 Inspection Error Messages 9-1
I 10.0 Inspection Scheduling Error Messages 10-1
11.0 Measurement/Violation Error Messages 11-1
12.0 Permit Event Error Messages 12-1
13.0 Permit Facility Error Messages 13-1
14.0 Parameter Limits Error Messages 14-1
15.0 Pipe Schedule Error Massages 15-1
16.0 Pretreatment Performance summary Error Messages . 16-1
17.0 Single Event Violation Massages . 17-1
18.0 Table Update Error Messages 18-1
19.0 Undefined Data Type Error Messages 19-1
A.O PCS User Comments A-l
Table of Contents iv
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II.C.2,
The "GREAT System" (General Record of Enforcement Actions Tracked), circa
1980. The GREAT System tracks EPA-issued Administrative Orders (AOs) and
Notices of Violation issued from the commencement of the system until
September 30, 1987. Requests for retrievals should be addressed to Mary
Gair, OWEP, FTS 475-8557. See also II.C.10.
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II.C.3,
# "PCS Data Element Dictionary", updated July 2, 1990 and "PCS Codes and
Descriptions Manual", updated June 9, 1989. Table of Contents only.
-------
.n
-fto
-------
PCS Data Element Dictionary
Document Number PCS-DD90-2.01
July 2, 1990
PCS USER SUPPORT
202/475-8529
U.S. EPA CEN-338)
401 M. St. SM
Washington, DC 20460
-------
TABLE OF CONTENTS
1.0 OVERVIEW 1-1
2.0 FORMAT FOR DATA ELEMENT ENTRIES 2-1
3.0 DATA ELEMENT. ENTRIES 3-1
4.0 GLOSSARY 4-1
A.O APPENDICIES Append-1
Appendix A. PCS User Comments A-l
Appendix I. index Description 1-1
Index 1-2
Table of Contents
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PCS Codes and Descriptions
Document Number PCS-CD88-1.01
December 19, 1988
PCS USER SUPPORT
202/475-8529
U.S. EPA CEN-338)
401 M. St. SH
Washington, DC 20460
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TABLE OP CONTENTS
1.0 PCS Coda and Description Tables 1
1.1 Instructions for Obtaining Tables ... 1
1.1.1 Printing this Manual 1
1.1.2 Printing SELECTED Tables 2
1.2 Code and Description Tables 3
Table of Contents * H
-------
II.C.4.
"NPDES Self-Monitoring System User Guide", dated January 1985. Table of
Contents only.
-------
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NPDES SELF-MONITORING SYSTEM
USER GUIDE
Office of Water
Office of Water Enforcement and Permits
January 1985
U.S. Environmental Protection Agency
EN-338
401 N Street S.U.
Washington, D.C. 20460
-------
NPDES
Self-Monitoring System
User Guide
Concents Page
Introduction 1
SPDES Program Authority I
Legal Authority for NPDES Monitoring of Discharges 2
Inspection of NPDES Permittee Facilities 3
Meeting Permit Requirements 3
Organizing a Self-Monitoring Program 5
Elements of a Self-Monitoring System 5
Discharge Monitoring Reports (DMRs) 10
Discharge Monitoring Report - Instructions for Completion 14
Checklist for Self-Monitoring 24
Seil-itoultorlng Syste. Deer Guide 1 January
-------
II.C.5,
"Release and Description of Significant Violator Lists'*, dated March 8,
1984.
-------
-------
^ «y
f J£*j \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\^y|fr£/ WASHINGTON, D C 20460
MAR 8
fHfO'CfMt-N» AND
COMF1 (Ahft MONITOMihG
MEMORANDUM
SUBJECT: Release and Description of "Significant Violator" Lists
FROM. Gerald A. Bryan, Directorjj^fju •&$
Office of Compliance Analysis and Program Operations
TO. Regional Enforcement Contacts
EPA has begun to receive reauests from parties outside
the Agency for the lists of "significant violators" each
program area is developing for tracking in the Agency's
management systems.
Unless the facts pertaining to a specific situation
merit otherwise, EPA will release these lists upon request.
In order to avoid confusion or misunderstanding about the
meaning or significance of these lists, we are suggesting
that EPA personnel describe the lists in a manner consist
with the following:
tent
"EPA's list of significant violators" is a compilation
of regulated entities which, based on available infor-
mation, EPA believes are in violation of environmental
lavs or regulations and which EPA believes merit high
priority attention. EPA's managers use the lists to
reflect Agency priorities for tracking their progress
toward* compliance."
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OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING
Principal Regional Enforcement Contacts
Telephone
Region Name Title Number
I Paul Keough Deputy Regional Administrator 223*7210
II Doug Blazey Regional Counsel 264-1018
III Stan Laskowski Deputy Regional Administrator 597-9812
IV John (Alex) Little Deputy Regional Administrator 257-4727
V Alan Levin Deputy Regional Administrator 353-2000
Dave Ullrich Deputy Regional Counsel 353-2094
VI Dick Whittington Regional Administrator 729-2600
VII William Rice Deputy Regional Administrator 758-5495
VIII Kerry Clough Chief of Staff 327-3895
IX John Vise Deputy Regional Administrator 454-8153
X Ed Coate Deputy Regional Administrator 399-1220
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EPA personnel should avoid giving the impression that
parties on the liat necessarily have been adjudicated to be
in violation or have agreed that they are in violation of
environmental requirements. Of course, planned or proposed
enforcement actions or atrategies against specific facilities
should not be released.
Only lists which are comprised of those violators
tracked in EPA's Strategic Planning and Management System
(SPMS) should be characterized as EPA's "official" significant
violators list. In addition, tabulations of actions takes
against these parties should be characterized as "official"
only if those tabulations are obtained froa reports submitted
as part of SPMS.
- If you have any questions regarding the points raised in
this nemo, please feel free to give ae a call at (FTS) 382*4140.
cc: i.^krssociate Enforcement Counsel
OECM Office Directors
Program Compliance Office Directors
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II.C.6,
"PERMIT COMPLIANCE SYSTEM (PCS) POLICY STATEMENT", dated October 31, 1985.
(appendices updated March 23, 1988)
-------
-------
A \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D C 20460
OCT 3 I 1985
OFFICE OF
WATER
MEMORANDUM
SUBJECT: Permit Compliance System (PCS) Policy Statement
FROM: Lawrence J. Jensen *q
Assistant Administrator for Water (WH-556)\J*
TO: Regional Water Management Division Directors
Regions I - X
I am pleased to issue the attached policy statement on the
Permit Compliance System (PCS). This policy statement represents
an important step in the continuing effort to support a reliable
and effective automated information system for the National Pollutant
Discharge Elimination System (NPDES) program.
PCS 'is the national data base for the NPDES program. It
serves as the primary source of NPDES information for EPA, NPDES
States, Congress, and the public. The use and support of PCS by
EPA Regions and NPDES States are crucial to the effectiveness and
proper oversight of the NPDES program. This policy statement
establishes for EPA and NPDES States the key management practices
and responsibilities central to PCS' ability to contribute to the
overall integrity of the NPDES program and the achievement of our
long-term environmental goals. One of the requirements is to have
Regions and States enter all required data into PCS by September 30,
1986 (see Attachment 1 of the PCS Policy Statement). While the aim
of the policy is a consistent approach across Regional and State
NPDES programs, it retains flexibility for Regions and States to
tailor agreements to the unique conditions of each State.
The PCS Policy Statement is effective immediately. The Office
of Water Enforcement and Permits will monitor implementation of the
policy statement and issue special instructions as necessary.
Regional Water Management Division Directors and their State coun-
terparts are responsible for ensuring that their staffs receive suf-
ficient support to apply the principles of the policy to their PCS
activities.
I look forward to a strong commitment to this policy statement
by EPA and State NPDES programs. You can be assured of my full
support as EPA and the States move forward with its implementation.
Attachments
cc: Administrator
Deputy Administrator
State Directors
PCS Steering Committee
PCS Users Group - ,'-
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PERMIT COMPLIANCE SYSTEM POLICY STATEMENT
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
STATEMENT OF POLICY
It is EPA policy that the Permit Compliance System (PCS) shall
be the national data base for the National Pollutant Discharge
Elimination System (NPDES) program. All EPA Regions must use PCS
directly, and all NPDES States must either use PCS directly or
develop and maintain an interface.
As our primary data source, PCS will promote national consis-
tency and uniformity in permit and compliance evaluation. To
achieve national consistency and uniformity in the NPDES program,
the required data in PCS must be complete and accurate. Facility,
permits (i.e., events and limits), measurement, inspection, com-
pliance schedule, and enforcement action data are required. These
required data elements are further defined in Attachments 1 and 2.
They comprise the Water Enforcement National Data Base (WENDB)
which has been redefined as the core of information necessary to
enable PCS to function as a useful operational and management tool
and so that PCS can be used to conduct oversight of the effective-
ness of the NPDES program.
All required data for NPDES and non-NPDES States must be
entered into PCS by September 30, 1986 and maintained regularly
thereafter. This will require Regions and States to start entering
data as early as possible, and not wait until late FY 1986.
By the end of FY 1986, direct users of PCS shall establish,
with Office of Hater Enforcement and Permits (OWEP) assistance,
a Quality Assurance program for data in PCS. The program shall
define:
0 monthly measurement of the level of data entered;
0 appropriate time frames to ensure that data are entered
in PCS in a timely manner; and
0 nationally consistent standards of known data quality
based on proven statistical methods of quality assurance.
PCS Quality Assurance shall address the completeness (for
assurance of full data entry) and accuracy of the data
entered into PCS.
Adoption of PCS by States should be formalized in each
State's $106 Prpgram Plan, State/EPA Agreement, or in a separate
agreement. Each plan should clearly define EPA's and the NPDES
State's responsibilities regarding PCS. The Key Management
Practices in this Policy Statement should be incorporated into
the S106 Program Plan.
.C .
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- 2 -
BACKGROUND
When the PCS Steering Committee met in March 1985, EPA
Regional representatives stressed the essential need for a positive
statement from EPA Headquarters management to Regional and State
management specifically requiring the support and use of PCS.
Lack of such support may result in an incomplete and unreliable
data base, with sufficient EPA Headquarters, Regional, and state
support, however, PCS will come to serve several major purposes
for the NPDES program:
0 PCS will provide the overall inventory for the NPDES program.
0 PCS will provide data for-responding to Congress and the
public on the overall status of the NPDES program. As
such, it will serve as a valuable tool for evaluating the
effectiveness of the program and the need for any major
policy changes.
* PCS will encourage a proper EPA/State oversight role by iden-
tifying all major permittee violators.
* PCS will offer all levels of government an operational and
management tool for tracking permit issuance, compliance,
and enforcement actions.
!
This PCS Policy Statement is a result of the Steering CommitteV
meeting. It is a clear message to Regional and State management
that PCS is the primary source of NPDES information, and as
such, it is to be supported wholeheartedly by all users of PCS.
The PCS Steering Committee meeting also resulted in a
redefinition of WENDB and ratification thereof. WENDB is the
minimum standard of data entry which will allow PCS to function
as a useful operational and management tool (see Attachments 1
and 2). EPA Regions agreed that all WENDB elements will be
entered into PCS by September 30, 1986, and maintained regularly
thereafter.
Once the required data are entered into and regularly main-
tained in PCS, PCS will assist permits and compliance personnel
in many of their operational and management responsibilities.
PCS will greatly reduce reporting burdens for such activities
as the Strategic Planning and Management System (SPMS), and it
will reduce efforts needed for effective compliance tracking at
both Regional and State levels. Also, substantial automation of
the Quarterly Noncompliance Report (QNCR) will save time and
resources.
-------
IMPLEMENTATION STRATEGY
Key Management Practices
To effectively implement and uphold this PCS Policy Statement
and enhance PCS' capabilities, there are certain key management
practices that must be implemented:
0 The following milestones have been established to facilitate
the entry of all required data by the end of FY 1986:
- All required National Municipal Policy (NMP) data must be
entered into PCS by October 31, 1985 (See Attachment 1).
- All required data for non-NPDES States must be entered
into PCS by March 31, 1986.
0 NPDES permits shall be enforceable and tracked for compli-
ance using PCS. The Office of Water Enforcement and
Permits (OWEP) recognizes there may be situations where
permit limits and monitoring conditions are not initially
compatible with PCS data entry and tracking. In these
cases, Regions should ensure that appropriate steps are
taken by the permit writer to identify difficult permits
to the PCS coder, and to mutually resolve any coding
issues. The Regions should work closely with their NPDES
States using PCS, to address similar data entry problems
with State-issued NPDES permits.
* WENDB is the minimum standard of data entry for PCS (see
the attached lists of data requirements). If States and
Regions wish to enter NPDES data beyond what has been required
they may do so. For example, if States want to enter
Discharge Monitoring Report (DMR) data for minor facilities,
the option is available in PCS and the States' may use it
as their resources allow. EPA will ensure that sufficient
computer space is available for the currently projected
use of PCS.
0 All DMRs submitted to EPA Regional Offices (including DMRs
submitted by NPDES States for EPA entry into PCS) must be
preprinted using the Office of Management and Budget (OMB)
approved DMR form. NPDES States directly using PCS are
not required to use the OMB-approved form; however, its
use is strongly encouraged. With the continuing demand
for more complete information and with stable, if not
diminishing, data entry resources, it is to EPA's and
NPDES States' benefit to preprint DMRs. The use of pre-
printed DMRs will greatly reduce PCS' data entry burden,
making available resources to be used in other areas
(e.g., PCS quality assurance, data entry for other PCS
records, etc.).
-------
-4-
0 The frequency with which DMRs are submitted to the EPA or
NPDES State is important for ensuring timely entry of
data into PCS and timely review of permittee's compliance
status. Quarterly, semi-annual, or annual submission of
DMRs creates a major data entry burden and impedes the
compliance evaluation process. As a result, the useful-
ness of DMR data for compliance evaluation decreases
substantially. Monthly submittal of DMRs alleviates this
problem *and enhances PCS' effectiveness significantly. It
is recommended that monthly submattal of DMRs be incorpo-
rated into major permits as they are reissued. With approx-
imately 20 percent of the permits reissued each year, it
will take five years to complete the transition to monthly
submittal for all major permittees.
9 EPA Regions should coordinate with their respective States
to develop strategies that describe each State's plans to
either use PCS directly or develop an interface. These
strategies should include the rationale for selecting one
of these methods of data entry into PCS, an outline of all
requirements necessary for implementing the selected
method, the mechanisms to be used to supply sufficient
resources, and a schedule for attainment not to exceed
September 30, 1986. If a State is a current user of PCS
via one of these methods , the strategy should describe its
needs for enhancing its PCS usage or improving its PCS
interface, the mechanisms to be used to/supply sufficient
resources, and a schedule for attainment not to exceed
September 30, 1986.
0 When writing or revising a Memorandum of Agreement (MOA),
the Region and State should specify the State's intent to
use or interface with PCS. The MOA should address the
rationale for selecting one of these selected methods of
data entry into PCS, an outline of all requirements neces-
sary for implementing the selected method, the mechanisms
to be used to supply sufficient resources, and a schedule
for attainment.
Responsibilities
Of f ice of Water Enforcement and Permits; It is OWEP's full
responsibility to maintain the structure (i.e., the computer
software) of PCS and to operate the system. OWEP will continue
to support time-sharing funds needs, training, and the necessary
resources to continue the operation of PCS. OWEP will work with
the EPA Regions and NPDES States to continually evaluate and
improve, where feasible, the system's software, time-share funding,
operation, and maintenance. OWEP will maintain a Steering Commit-
tee and User Group, organize the national meetings, and work
closely with the Regional and State representatives on major
decisions related to PCS.
OWEP will oversee the Regions' and States' progress in
fulfilling this policy statement by assessing the quantity of
data entered each quarter.
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- 5 -
EPA Regions and NPDESStates; It is the EPA Regions' and
NPDES States' full responsibility to maintain the infrastructure
of PCS by accurately entering data in a timely manner. Also, EPA
Regions and NPDES States are responsible for participating in PCS
Workgroups and contributing to improvements to PCS.
Three National PCS meetings are held each year, one for the
Steering Committee and two for the PCS Users Group. EPA Regions
are expected to attend all three meetings. NPDES States directly
using PCS are invited to attend the State portions of these
meetings. More meetings may be scheduled during the year if
necessary.
Since consistent and objective compliance tracking is a
central component of an effective and credible enforcement program,
NPDES States are strongly urged to use PCS directly. We realize,
however, that there may be some cases where NPDES States cannot
use PCS directly. In these instances, in accordance with 5123.41
of the regulations, EPA requests from the States all required
information (as indicated in the attachments) for entry into PCS.
This can be achieved one of two ways:
* A State Automated Data Processing (ADP) interface can be
developed. It is the EPA Region's responsibility to work
with the NPDES State to develop an effective State ADP
interface. The State, however, should take the lead in
developing the interface and work closely with the Region
to ensure the interface is effective. It should be realized
that system interfaces are often troublesome and unwieldy?
they are often ineffective and limit the States1 flexibility
to change their systems quickly to meet management needs.
In the event a State ADP interface is developed, there
must be formal agreement that the State will operate the
interface, maintain the interface software, and be fully
responsible for making any changes to the interface based
on changes made to its automated data base. This will
ensure that the NPDES State will be held responsible for
system compatibility. If the State does not accept full
responsibility with system compatibility, then changes
must not be made to the State system without the prior
knowledge of EPA. The State is responsible for ensuring
that the data are transferred to PCS in a timely manner,
accurately, and completely. Interfaces must be developed
and maintained so that they operate with maximum efficiency
all of the time.
0 OWEP recognizes that FY 1986 will be a transition year for
PCS. NPDES States will begin using PCS or will develop
interfaces. In the event that neither of these alternatives
is accomplished by the end of FY 1986, in accordance with
the FY 1986 Guidance for the Oversight ofNPDES Programs,
the State will be responsible for submitting all required
information (as indicated in the attachments) in hard
copy format. The data must be submitted either already
-------
- 6 -
coded onto PCS coding sheets or in a format that can be
readily transferred onto PCS coding sheets. Also, the data
must be submitted at regular intervals to ensure timely
entry into PCS. Once the data are received by EPA, it is the
EPA Region's responsibility to enter the data into PCS in a
timely manner.
Funding
0 5106 grant funds may be used for interface software develop-
ment. However, they cannot be used for maintenance of the
interface software for State-initiated changes to a State
AOP system or for the operation and maintenance of a separate
State ADP system.
0 $106 grant funds may be used for State data entry if and
only if the State uses PCS directly or the State provides
data to PCS via an interface that meets the standards of
this policy.
* If requested by a State, EPA will agree to pay for its
time-sharing costs to implement this policy, within given
resources.
0 Headquarters will continue to pursue alternative methods of
reducing the data entry burden on Regions and States.
Date
Assistant Admi
for Water
-------
ATTACHMENT 1
REQUIRED DATA TO BE ENTERED INTO PCS
Information Type * Majors
Permit Facility Data X
Permit Event Data X
Inspection Data X
Parameter Limits and X
Pipe Schedule Data
Compliance Schedule X
Data
DMR Measurement Data X
Significant Noncompliance
Flag
Enforcement Action Data X
(Enforcement Action Data,
Compliance Schedule Data,
and Interim Limits Data
\from all active formal
enforcement actions)
Enforcement Action Data
(Type Action, ENAC?
Issue Date, ENDT; and
Date Compliance Required,
ERDT; from all active
formal enforcement
actions)
Pretreatment Approval^ X
National Municipal Policy X
Data3
Minor 92-500s Other Minors
X
X
X
X
X
X
X
X
X
X
each of the categories listed in this chart, the Information
Type is the set of core data elements listed in Attachment 2.
2pretreatment Program Required Indicator, PRET; one data element.
3A11 required data as described in May 16, 1985 memorandum on
National Municipal Policy Tracking in PCS. This includes
Facility User Data Element 6 (RDF6), Compliance Schedule and
Enforcement Action information.
-------
ATTACHMENT 2
WATER ENFORCEMENT NATIONAL DATA BASE (WENDB) ELEMENTS
Data Element Name
COMMON KEY
NPDES Number
COMPLIANCE SCHEDULE RECORD
Compliance Schedule Number
Data Source Code
Compliance Actual Date
Compliance Report Received Date
Compliance Schedule Date
Compliance Schedule Event Code
COMPLIANCE VIOLATION RECORD
*Compliance Violation Date
^Violation Compliance Event Code
*Compliance Violation Code
'Significant Non-Compliance Code
(Compliance)
^Significant Non-Compliance Date
(Compliance)
^Violation Compliance Schedule
Number
"Violation Data Source Code
ENFORCEMENT ACTION RECORD
Enforcement Action
Achieved Date
Enforcement Action
Enforcement Action
Enforcement Action
Enforcement Action
Enforcement Action
Enforcement Action
Violation Code
Enforcement Action
Violation Date
Enforcement Action
Number
Enforcement Action
Enforcement Action
Enforcement Action-
Enforcement Action
Due Date
Enforcement Action
Enforcement Action
Enforcement Action
Enforcement Action
Number
Response
Comment Line 1
Comment Line 2
Comment Line 3
Comment Line 4
Comment Line 5
Compliance
Compliance
Modification
Code
Date
Status Code
Response
Status Date
Season Number
Source Code
Discharge
Acronym
NPID
CSCH
DSCD
DTAC
DTRC
DTSC
EVNT
CVDT
CVEV
CVIO
SNCC
SNDC
VCSN
VDCD
EADR
ECMl
ECM2
ECM3
ECM4
ECM5
ECVC
ECVD
EMOD
ENAC
ENDT
ENST
ERDT
ESDT
ESEA
EVCD
EVDS
Usually generated by PCS; can be manually entered
-------
WENDB ELEMENTS
(Continued)
Data Element Name
Enforcement
Enforcement
Alphabetic
Enforcement
Enforcement
Enforcement
Code
Enforcement
Enforcement
Enforcement
Action Event Code
Action Limit Type-
Action Monitoring Date
Action Monitoring Location
Action STORET Parameter
Action Discharge Designator
Action Compliance Schedule
Action Violation Type
EVIDENTIARY HEARING RECORD
Evidentiary Hearing Event Date
Evidentiary Hearing Event Code
INSPECTION RECORD
Inspection Date
Inspector Code
Inspection Type
MEASUREMENT VIOLATION RECORD
Measurement Concentration Average
Measurement Concentration Minimum
Measurement Concentration Maximum
Measurement Quantity Average
Measurement Quantity Maximum
Violation Date (Measurement)
No Discharge Indicator
^Significant Non-Compliance Code
(Measurement)
*Signifleant Non-Compliance Date
(Measurement)
Violation Measurement Designator
Measurement Discharge Number
Violation Monitoring Location
Violation STORET Parameter
PARAMETER LIMITS RECORD
Change of Limit Status
Contested Parameter Indicator
Modification Period End Date
Modification Period Start Date
Concentration Average Limit
Concentration Minimum Limit
_Concentration Maximum Limit
Concentration Unit Code
Quantity Average Limit
Acronym
EVEV
EVLM
EVMD
EVML
EVPR
EVRD
EVSN
EVTP
EHDT
EHEV
DTIN
INSP
TYPI
MCAV
MCMN
MCMX
MQAV
MQMX
MVDT
NODI
SNCE
SNDE
VDRD
VDSC
VMLO
VPRM
COLS
CONP
ELED
ELSD
LCAV
LCMN
LCMX
LCUC
LQAV
l-
-------
WENDB ELEMENTS
(Continued)
Data Element Name
Quantity Maximum Limit
Quantity Unit Code
Limit Type - Alphabetic
Monitoring Location
Modification Number
Limit Discharge Number
Limit Report Designator
STORET Parameter Code
Season Number
Statistical Base Code
PERMIT EVENT RECORD
Permit Tracking Actual Date
Permit Tracking Event Code
PERMIT FACILITY RECORD
River Basin
City Code
County Code
Type Permit Issued - EPA/State
Federal Grant Indicator
Final Limits Indicator
Average Design Flow
Facility Name Long
Facility Inactive Code
Major Discharge Indicator (Entered
by EPA Headquarters)
Pretreatment Program Required
Indicator
SIC Code
Type Ownership
National Municipal Policy
Tracking Indicator
Significant Noncompliance Flag for
P.L. 92-500 Minor Facilities
PIPE SCHEDULE RECORD
Report Designator
Discharge Number
Final Limits End Date
Final Limits Start Date
Interim Limits End Date
Interim Limits Start Date
Initial Limits End Date
Initial Limits Start Date
Number of Units in Report Period
Number of Units in Submission Period -
EPA
Number of Units in Submission Period -
State
Acronym
LQMX
LQUC
LTYP
MLOC
MODN
PLDS
PLRD
PRAM
SEAN
STAT
PTAC
PTEV
BAS6
CITY
CNTY
EPST
FDGR
FLIM
FLOW
FNML
IACC
MADI
PRET
SIC2
TYPO
RDF 6
(To Be Created)
DRID
DSCH
FLED
FLSD
MLED
MLSD
ILED
I LSD
NRPU
NSUN
NSUS
-------
WENDB ELEMENTS
(Continued)
Data Elernent Name
Pipe Inactive Code
Report Units
Initial Report Date
Initial Submission Date
Initial Submission Date
Submission Unit - EPA
Submission Unit - State
State
EPA
Acronym
PIAC
REUN
STRP
STSS
STSU
SUUN
SUUS
NOTE: Additional data elements subject to approval
Frequency of Analysis FRAN
Sample Type SAMP
Compliance Schedule File Number CSFN
Enforcement Action File Number ERFN
Permit Limits File Number LSFN
Inspection Comments (First ICOM
Three Characters for the
Number of Industrial Users
Inspected)
Facility Inactive Date IADD
Reissuance Control Indicator RCIN
Pipe Inactive Date PIDT
Total:
plus additional
New total:
data elements:
111 WENDB elements
+ 9^ data elements
120 WENDB elements
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAR 231988
of net of
**Ti"
MEMORANDUM
SUBJECT: Update of PCS Policy Statement/WENDB Data Elements
/•*
PROM: J. William Jordan, Director jfr
Enforcement Division (EN-338) "+
TO: Regional Water Management Division Directors
?
Since the Permit Compliance System (PCS) Policy Statement was
issued by Assistant Administrator Larry Jensen on October 31, 1985,
additional Water Enforcement National Data Base (WENDB) data
elements have been added to track key pretreatment (Pretreatment
Permits and Enforcement Tracking Svstem - PPETS) and administrative
penalty order activities. Only three of the administrative penalty
WENDB data elements listed in my previous memorandum on administrative
penalty tracking are currently included, tn each case we established
task forces of EPA and, in the case of PPETS, State representatives
to develop several options for new WENDB data elements. Regional
(and State for PPETS) comments were received on numerous occasions
before developing final lists.
Attached is an addendum to the PCS Policv statement which
includes these new WENDB data elements (i.e., hose data elements
that are reouired to be entered into PCS). The PPETS WENDB elements
are required for both EPA and NPDES states. Administrative penalty
order elements are required only for EPA actions. If new WENDB data
elements are needed for new initiatives, EPA Regions and the States
will be asked to participate in determining appropriate WENDB
elements. After this process, updated WENDB lists will again be
forwarded to you.
Please make sure your States receive a copy of this memorandum.
Call me (PTS-475-8304) or Roger Hartung, Acting Chief compliance
Information and Evaluation Branch (FTS-475-8313) if there are
questions. Questions on WENDB elements can be directed to Dela Ng
(FTS-475-8323) on Roger's staff.
Attachment
cc: Jim Elder
Glenn unterberger
Martha Prothro
Regional Compliance Branch Chiefs
Regional PCS Contacts
Regional Pretreatment coordinators
-------
-------
*PPENDIX 8
REQUIRED DATA TO BE ENTERED INTO PCS
Minor* Other*
Information. Type* Majors 95-500*3 Minor
Permit Facility Data X x x
Permit Event Data X X x
Inspection Data X X x
Parameter Limits and
Pipe Schedule Data X
Significant Compliance Data X X
Compliance Schedule Data X X
DMR Measurement Data X
Enforcement Action Data X
(Enforcement Action Data,
Compliance Schedule Data,
and interim Limits Data
from all active formal
enforcement actions and
Enforcement Action Data
for all active informal
enforcement actions)
Enforcement Action Data X
from all active informal
and forma^l enforcement
actions
Pretreatment Approval X X* X*
National Municipal Policy XXX
Data3
Single Event Violation X X* X4
Data
Pretreatment Compliance x X* X4
Inspection (PCII/Audit
Pretreatment Performance X X4 X4
Summary
For each of the categories listed in this chart, the Information Tyoe
is the set of core date elements listed in Attachment II.
Pretreatment Program Required Indicator, PRET; one data element.
All reomred data as described in "ay 16, 1985 memorandum on National
Municioal Policy Trackina in PCS. This includes NPFF, NPSC, NPSQ,
DC2, Compliance Schedule and Enforcement Action Information.
The following information types are only for minor POTWs which are
pretreatment control authorities: pretreatment aporoval, sinale event
violation data, pretreatment compliance inspection (PCl)Xaudit, and
pretreatment performance summary.
-------
r -
-------
APPENDIX €
WATER ENFORCEMENT NATIONAL DATA BASE (WENDS) ELEMENTS
Data Element Name Acronym
COMMON KEY
NPDES Number
COMPLIANCE SCHEDULE RECORD
Compliance Schedule Actual Date DTAC
Compliance schedule Date DTSC
Compliance schedule Event Code EVNT
Compliance Schedule File Number CSFN
Compliance Schedule Number CSCH
Compliance Schedule Report Received Date DTRC
Compliance Schedule User Data Element2 RDC2
Data Source code DSCO
\
COMPLIANCE VIOLATION RECORD1
Compliance Schedule Violation Code CVIO
Compliance schedule Violation Date CVDT
Compliance Schedule Violation Event Code CVEV
Compliance Violation Compliance Schedule Number VCSN
Compliance Schedule Violation Data Source Code VDCD
NCR Compliance Schedule Violation Detection Code SNCC
QNCR Comoliance Schedule Violation Detection Date SNDC
QNCR Compliance Schedule Violation Resolution code SRCC
QNCR Compliance Schedule Violation Resolution Date SPDC
ENFORCEMENT ACTION RECORD
Enforcement Action Code (includes administrative penalty orders)2 ENAC
Enforcement Action Comment EOfT
Enforcement Action Compliance Schedule Violation Code ECVC
Enforcement Action Compliance Schedule Number EVSN
Enforcement Action Compliance Schedule Violation Date ECVD
Enforcement Action Data source code EVCD
Enforcement Action Date ENDT
NOTE: see last page for listing of footnotes
- 1 -
-------
APPENDIX C
WENDB ELEMENTS
Data Element Name Acronym
* ,
Enforcement Action Discharge Number EVDS
Enforcement Action Event Code EVEV
Enforcement Action Pile Nuntoer ERFN
Enforcement Action Liirit Type-Alphabetic EVLM
Enforcement Action Modification Number EMOD
Enforcement Action Monitoring Date EV*D
Enforcement Action Monitoeinq Location EVML
Enforcement Action Parameter Code FVPR
Enforcement Action Report Designator EVRD
Enforcement Action Response Due Date ERDT
Enforcement Action Season Number ESEA
Enforcement Action Status Code ENST
Enforcement Action Status Date ESDT
Enforcement Action Violation Type EVTP
Enforcement Action Code - Violation Key3 EXAC
Enforcement Action Date - Violation Key3 EKDT
Enforcement Action Type Order issued EPA/State Violation Key3 EKTP
Enforcement Action Single Event Violation Code3 ESVC
Enforcement Action Single Event Violation Date3 ESVD
Enforcement Action Type order Issued EPA/State3 EATP
EVIDENTIARY HEARING RECORD
Evidentiary Hearing Event Code4 EHEV
Evidentiary Hearing Event Date EHDT
INSPECTION RECORD
Inspection Date DTIN
Inspector Code INSP
Inspection Type TYPI
Inspection Comments (First three characters for ICON
Industrial User pretreatment inspections)
iQTE: See last page for listing of footnotes
- 2 -
-------
APPENDIX C
WENPB ELEMENTS
9
Data Element Name Acronym
«SASUF£y£NT VIOLATION RECORD
measurement/Violation Concentration Average MCAV
Measurement/Violation Concentration Minimum MCMN
"easurement/Violation Concentration Maximum MCMX
Measurement/Violation Quantity Average MQAV
Measurement/Violation Quantity Maximum MQMX
Measurement/Violation Discharge Number VDSC
Measurement/Violation Monitoring Location VMLO
Measurement/Violation Monitoring Period End Date MVOT
Measurement/Violation Parameter VPRM
Measurement/Violation Report Designator VDRD
No Discharge Indicator NODI
QNCR Measurement Violation Detection Code1 SNCE
QNCR Measurement Violation Detection Date1 SNDE
QNCR Measurement Violation Resolution Code1 SRCE
QNCR Measurement Violation Resolution Date1 SRDE
PARAMETER LIMITS RECORD
ange of Limit Status COLS
icentration Average Limit LCAV
ntration Maximum Limit LCMX
centration Minimum Limit LOW
Concentration Unit Code LCUC
Contested Parameter Indicator CONP
Limit Discharge Number PLDS
Limit File Number PLEN
Limit Report Designator PLRD
Limit Type - Alphabetic LTYP
Modification Number MODN
Modification Period End Data ELED
Modification Period Start Date ELSD
Monitoring Location MLOC
Parameter code PRAM
Quantity Average Limit LQAV
Quantity Maximum Limit LQMX
Quantity Unit Code LQUC
season Number SEAN
Statistical Base Code STAT
NOTE: See last page for listing of footnotes
- 3 -
-------
APPENDIX C
WENDB ELEMENTS
PBWIT. EVENT RECORD
Pewit Trackina Actual Date PTAC
Perait Tracking Event codeS prpgy
PEPHIT FACILITY RECORD
Average Design Flow FLOW
City code " CITY
County Code any
Facility Inactive code IACC
Facility Inactive Date IADT
Facility Name Long FNML
Federal Grant Indicator FDGR
Final Limits Indicator FLIM
Ma^or Discharge Indicator (Entered by EPA Headouarters) MADI
NMP Final Schedule6 NPSC
NMP Financial Status6 NPPF
NMP Schedule Quarter6 NPSQ
Pretreatment Program Reouired Indicator PRET
QNCR Status Code,' current Year (Manual)7 CYMS
Reissuance control Indicator RCIN
River Basin (first four characters) 8AS6
sic Code SIC2
Type of Peewit Issued - EPA/State FPST
Type of Ownership TYPO
PIPE SCHEDULE RECORD
Discharge Number DSCH
Final Limits End Date FLED
Final Limits Start Date FLSD
Initial Limits End Date ILED
Initial Limits Start Date ILSD
Initial Report Date STOP
Initial Submission Date - EPA STSU
Initial Submission Date - State STSS
Interim Limits End Date MLED
Interim Limits Start Date MLSD
Number of Units in Reporting Period NRPU
Number of emits in Submission Period - EPA NSUN
Number of Units in Submission Period - State NSUS
NOTE: See last page for Ustina of footnotes
- 4 -
-------
APPENDIX C
WENDB ELEMENTS
Data Element Name Acronym
PIPS SCHEDULE RECORD (continued)
Pipe Inactive code
Pipe Inactive Date
Report Designator DPID
Reporting units RENU
Submission Unit - EPA SUUN
Submission unit - state SOUS
SINGLE EVENT VIOLATIONS DATA ELEMENTS3
Single Event Violation Code SVCD
Single Event Violation Date SVDT
QNCR Single Event Violation RNC Detection Code SNCS
QNCR Single Event Violation RNC Detection Date SNDS
QNCR Single Event Violation RNC Resolution Code SRCS
QNCR Single Event Violation RNC Resolution Date SPDS
PRETREATMFNT PERMITS AND ENFORCEMENT TRACKING SYSTEM (PPETS)
SOURCE - PRETREATMENT COMPLIANCE INSPECTION (PCD/AUDIT
Adoption of Technically-based Local Limits ADLL
ategorical Industrial Users CIUS
chnical Evaluation for Local Limits EVLL
SIUS in SNC with Self-Monitoring MSNC
Significant Industrial Users Without Control Mechanisms NOCM
SIUS Not Inspected or Sampled NOIN
SIUS in SNC with Pretreatment Standards or Reporting PSNC
Date Permit was Modified to Require Pretreatment implementation PTIM
Significant industrial Users " SIUS
SIUS in SNC with Self-Monitoring and Not inspected or Sairoled SKIN
PCI/Audit Date DTIA
SOURCE - PRETREATMENT PERFORMANCE SUMMARY
Formal Enforcement Actions Excluding Civil and Criminal
Judicial suits FENP
Industrial Users Prom Which Penalties Have Been Collected IUPN
Civil or criminal Suits Piled Against SIUS JUDI
SIUS in SNC with Pretreatment Compliance scheduled SSNC
SIUS with Significant Violations Published in Newspaper SVPU
Pretreatment Performance Summary Start Date PSSD
Pretreatment Performance Summary End Date PSED
NOTE: See last page for listing of footnotes
- 5 -
-------
Listing of Footnotes
1. These data elements are automatically generated by °CS unless the user wishes to
enter them manually.
2. This data element is reouired for both infernal and formal enforcement action coces
(when applicable). This includes administrative penalty orders.
3. These data elements were added at the reouest of the PCS Steering Committee at the
1986 meeting.
4. There are seven (7) reouired evidentiary hearing event codes (when applicable).
They are as follows:
01099 Date Granted 10099 Date ALJ Decision Rendered
06099 Date Hearing Scheduled 11099 Date Appealed to Administrator
07099 Date Reouested (EPA issued permits only)
08099 Date Settled
09099 Date Denied
5. There are thirteen (13) required oermit event codes (when applicable.)
They are as follows:
P1099 Application deceived P6599 Reopener P7499 301 (k) Variance
P3099 Draft Permit/Public Notice P7099 Stays P7S99 316 (a) Variance
P4099 Permit Issued P7199 301 (c) Variance P7699 316 (b) Variance ,
P5099 Permit Expired P7299 301 (g) Variance P7799 Fundamental Differe
Factors Variance
30099 Permit Modified
6. These data elements are previously approved National Mur :ipal Policy (NMP)
data elements.
7. Reouired for P.L. 92*500 minors.
- 6 -
-------
II.C.7,
"GUIDANCE FOR PREPARATION OF QUARTERLY AND SEMI-ANNUAL NONCOHPLIANCE
REPORTS", March 13, 1986, with transmittal letter. Table of Contents.
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC. 20460
MAR 13 1986 OFF.CEOF
WATER
MEMORANDUM
SUBJECT: Transmittal of the Final Oaarterlv Noncompliance Report
^Guidance
FROM: Rebecca W. Hanmer, Director
Office of Water Enforcement and Permits (EN-335)
TO: Water Management Division Directors
Regions I - X
The Quarterly Noncompliance Report (QNCR) Guidance is attached
(Attachment A) in final form reflecting comments on the draft. As
you know, we held three national training sessions to acquaint the
QNCR preparers with the new regulatory reauirements and elicit
additional questions not answered by the draft QNCR Guidance. The
major change from the draft is the resolution of permit effluent
violations. Permit effluent violations were resolved in the draft
QNCR Guidance when a facility no longer met the pattern of
noncompliance criteria for reportable effluent violations. These
criteria were two monthly Technical Review Criteria (TRC) violations
or four chronic violations in the two quarter period covered by the
OHCR. Therefore, a permittee would have to experience fewer violations
than two TRC or four chronic violations in the two quarters to be
reported as resolved on the QNCR. The final guidance also now resolves
these violations, for both OHCR and significant noncompliance (SNC)
purposes/ when a facility achieves one quarter of absolute compliance
with the monthly average limitations.
The other issue which was resolved by your comments was the
tracking of permit effluent measurements in the absence of interim
limits in an enforcement order. The majority of comments were in
favor of the draft guidance on this issue - that continuing permit
violations not be reported on the QNCR, but tracked outside of the
QNCR for escalation of enforcement when necessary. The final
guidance remains unaltered on this issue.
In addition to the chanae mentioned above, several wording
changes have been made in the final version based on comments received
at the training sessions. The major comments and questions have been
compiled into a "question and answer" format to be sent as a follow-
up to the training. These questions and answers reflect a wide range
of subjects indicating a great deal of careful thought by Regional
staff.
-------
One expected important result of the QNCR Guidance and our
revised definition of SNC is an increase in the level of SNC
(expressed as a percent of major permittees). The Office of
Enforcement and Compliance Monitoring (OECM) has been informed of
this increase and will be taking this into consideration when
evaluating Regional performance. In addition, sample introductions
to the QNCR have been drafted (see Attachment B for QNCRs generated
automatically through the Permit Compliance System and
Attachment C for manually prepared QNCRs) to accompany reports
sent out under the Freedom of Information Act; these introductions
will inform the public of the changes in the regulation and
indicate that even though our definition of SNC is more stringent
than it had been in the oast, it does noc include all instances
of noncompliance listed on the QNCR.
Please call J. William Jordan (202-475-8304) or Larry Reed
(202-475-8313) for questions, or have your staff call Sheila
Frace (202-475-9456).
Attachments
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Table of Contents
PART 1: QUARTERLY NONCOMPLIANCE REPORTS
I. INTRODUCTION 1-1
II. SUBMITTAL REQUIREMENTS 1-2
III. VIOLATION OF PERMIT REQUIREMENTS 1-9
A. DETERMINING INSTANCES OF PERMIT
NONCOMPLIANCE TO BE REPORTED 1-9
B. RESOLUTION OF REPORTED INSTANCES OF
PERMIT NONCOMPLIANCE 1-15
C. FORMAT OF INSTANCES OF PERMIT NONCOMPLIANCE 1-16
IV. VIOLATION OF ENFORCEMENT ORDER REQUIREMENTS 1-21
A. DETERMINING INSTANCES OF ENFORCEMENT ORDER
NONCOMPLIANCE TO BE REPORTED 1-21
B. RESOLUTION OF REPORTED INSTANCES OF
ENFORCEMENT ORDER NONCOMPLIANCE 1-25
C. FORMAT OF INSTANCES OF ENFORCEMENT ORDER
NONCOMPLIANCE 1-26
PART 2: SIGNIFICANT NONCOMPLIANCE
I. INTRODUCTION 2-1
II. DEFINITION 2-1
III. EXCEPTIONS LIST 2-6
PART 3: SEMI-ANNUAL STATISTICAL SUMMARY REPORTS
I. INTRODUCTION 3-1
II. DETERMINING INSTANCES OF NONCOMPLIANCE TO BE REPORTED 3-1
III. FORMAT 3-2
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LIST OF APPENDIXES
APPENDIX I - Noncompliance to be Reported in the ONCR
(by subparagraph)
APPENDIX II - Acceptable Quarterly Noncomoliance Report Abbreviations
APPENDIX III - Current Listing of Group I and Grouo It Pollutants
APPENDIX IV - Sample Quarterly Noncomoliance Report
APPENDIX V - Technical Guidance
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\
")1~
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ATTACHMENT A
GUIDANCE FOR PREPARATION OF QUARTERLY
AND SEMI-ANNUAL NONCOMPLIANCE REPORTS
(PER SECTION 123.45, CODE OF FEDERAL REGULATIONS, TITLE 40)
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FOREWORD
Section 123.45 of the Code of Federal Regulations, Title 40,
establishes the reporting requirements for quarterly, semi-annual,
and annual noncompliance reports on facilities that are permtted
under the National Pollutant Discharge Elimination System (NPDES).
This regulation, as published in the Federal Register on August 26,
1985, is a revision of previous reporting requirements. This
revision was necessary because the old regulations were found to
be too vague. This resulted in inconsistent reporting as each
NPDCS administering agency tried to manage their program in a
manner that was consistent with their understanding of the intent
of the regulation.
Quarterly Nonconipliance Report
The current regulations for the Quarterly Noncompliance Report
(QNCR) evolved from initial efforts by the compliance managers in
the Regions and in states having NPDCS authority to identify a
concensus set of reporting criteria. These criteria were then
reviewed by the Compliance Task Force of the Association of State
and Interstate Water Pollution Control Administrators. The result
was a set of specific, quantifiable reporting criteria; violation
of these criteria is known as Category I noncompliance.
t
Since that time, EPA has identified additional violations that
are harder to quantify but are of sufficient concern to be considered
reportable; these violations are known as Category II noncompliance.
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- ii -
The regulations currently reouire the reporting of Category I
and II noncompliance by major permittees; these regulations differ
most significantly from the old ones in the areas of effluent
and schedule noncompliance.
The major change in the area of effluent noncompliance is
the concept that an isolated/ minor excursion may not be of
sufficient concern to warrant tracking on the ONCR. Instead,
Category I effluent noncompliance is based on specifically
defined "patterns of noncompliance" which take into account the
magnitude, frequency of occurrence, and duration of the violations,
These violations are resolved through issuance of a formal
enforcement order or by demonstrated compliance such that
the criteria are no longer met for the "pattern of noneompliance"
or the permittee has achieved one complete ouarter of compliance.
In contrast, the old regulations reguired that all violations
during the Quarter be reported. This requirement would have
resulted in such voluminous reports that it was not strictly
adhered to by the administering agencies (EPA or approved States).
These violations were resolved in the past by one month of
compliance.
One of the major changes in the area of schedule
noncompliance is the concept that municipalities constructing
treatment facilities using federal grant funding should be
reported using the same criteria as for other municipalities
and industries. This is a revision of the old reauirements
which allowed the subjective criteria of "unacceptable progress"
to be used for federally funded municipalities.
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- ill -
The other major chanae in the area of schedule noncompliance
is the length of the schedule delays that must be reported.
In the oast, the NPDER administering agency was reauired to
report violations of schedules (other than grant schedules)
that exceeded the reporting date of the schedule milestone by
at least 30 days (generally 60 days from the scheduled milestone
date). It was found, however, that it was often possible to
make up for delays of less than 90 days within the overall
schedule. The new regulation reguires only the reportina of
schedule violations (including grant schedule violations) that
exceed the scheduled date by 90 days or more.
A summary chart of the noncompliance that must be reported
in the QNCR can be found in Appendix I of this guidance.
Semi-annual Statistical Summary
In addition to these changes, the new regulation also
establishes the reguirements for a new report - the Semi-annual
Statistical Summary Report. This report was designed as a
complement to the ONCR as an indication of the amount of effluent
noncompli-ance that did not meet the criteria for QNCR reporting.
The Semi-annual Statistical Summary Report includes numerical
counts of major permittees in violation of monthly average
effluent limitations for two or more months of the six-month
reporting period. This criterion was chosen based on a study
of over 2500 major permittees in twelve states. The study
found that only one percent of the permittees that would violate
52'
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- iv -
their monthly averacie effluent limits twice in a year would not
meet the chosen criteria of twice in six months. As such, the
chosen criteria was believed to be a reasonable indicator of
the level of effluent noncomnliance - both the noncotnoliance
that warrants trackina on the ONCR and that which does not.
Annual Noncompliance Report
The requirements for the Annual Noncompliance Report remain
unchanqed in the current regulation.
Significant Noncompliance
Significant Noncompliance (SMC) is a subset of Reportable
Noncompliance as defined for the ONCR. SNC is not reaulatory,
but is defined by EPA in Part 2 of this Guidance. SNC is used
solely for manaqement purposes and contains thos*» instances of
noncompliance (both Cateqory I and TI) that FPA feels merit
soecial attention from NPDES administerinq aqencies. These
priority violations are tracked throuqh the Strateaic Planninq
and Manaqement System (SPM1?) to ensure timely enforcement.
An SNC/QNCR comparison chart can be found in Appendix I.
Agency Enforcement
Any violation or instance of noncompliance by any point
source discharqer is subiect to agency enforcement actions.
This principle applies to all dischargers (major, minor, and
unpermitted), and to all violations of Clean Water Act/NPDES
requirements* reqardless of whether or not the violations meet
either the Reportable (ONCR) Noncomoliance or SNC criteria.
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- v -
Ha.")or Guidance Topics
This guidance is beinq issued to clarify the revised
reporting requirements and SNC. Ma^or topics throughout the
guidance include the followina:
0 ONCR reporting reauirements
- Criteria for reporting noncompliance
e Separate criteria for reoortina instances of noncompliance
with permit conditions and with enforcement order
requirements
- These criteria are considered Category I if they are
part of the "readily Quantifiable" criteria approved
by the Compliance Task Force
- These criteria are considered Category II if they are
part of the "less readily Quantifiable" criteria later
develoned by EPA
- Category I versus Category II does not determine priority
for enforcement response
- Evaluation of effluent noncompliance/compliance based on
performance over a period of time (pattern of noncomnliance)
rather than at a specific point in time (e.g., the last
month of the ouarter)
- The capability to generate the ONCR from the national data
base (the Permit Comnliance System)
0 Significant Noncompliance
- Subset of ONCR Category I and II noncompliance
0 Semi-annual Statistical Summary Report reguirements.
A copy of the current (revised and carried over) renortinq
requirements follows.
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- vi -
S 123.45 Noncompliance and °roqram Reporting by the Director.
The Director shall prepare Quarterly, semi-annual, and annual
reports as detailed below. When the ^tate is the permit-issuinq
authority, the State Director shall submit all reports reauired
under this sectron to the Regional Administrator, and the EPA Region
in turn shall submit the State reports to EPA Headquarters. When
EPA is the permit-issuinq authority, the Regional Administrator
shall submit all reports required under this section to EPA
Headauarters.
(a) Quarterly reports. The Director shall submit quarterly
narrative reports for major permittees as follows:
(1) Format. The report shall use the following format:
(i) Provide a separate list of major NPDES permittees
which shall be subcateqorized as non-POTWs, POTWs,
and Federal permittees.
(li) Alphabetize each list by permittee name. When two or
more permittees have the same name, the permittee with
the lowest permit number shall be entered first.
(111) For each permittee on the list, include the followina
information in the following order:
(A) The name, location, and permit number.
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- vii -
(C) The date{s), and a brief description of the
action(s) taken by the Director to ensure
compliance.
(D) The status of the instance(s) of noncompliance
and the date noncompliance was resolved.
(E) Any details which tend to explain or mitigate the
instance(s) of noncompliance.
(2) Instances of noncompliance by maior dischargers to be
reported.
(i) General. Instances of noncompliance, as defined in
paragraphs (a)(2)(ii) and (iii) of this section, by
major dischargers shall be reported in successive
reports ,until the noncompliance is reported as resolved
(i.e., the permittee is no longer violating the permit
conditions reported as noncompliance in the QNCR).
Once an instance of noncompliance is reported as
resolved in the QNCR, it need not appear in subseauent
reports.
(A) All reported violations must he listed on the
QNCR for the reporting period when the violation
occurred, even if the violation is resolved during
that reporting period.
(B) All permittees under current enforcement orders
(i.e., administrative and judicial orders and
consent decrees) for previous instances of
noncomnliance must be listed in the ONCR until
the orders have been satisfied in full and the
permittee is in compliance with permit conditions.
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- viii -
If the permittee is in compliance with the
enforcement, order, but has not achieved full
compliance with permit conditions, the compliance
status shall be reported as "resolved pendino,"
but the permittee will continue to be listed on
the ONCR.
(11) Category I noncompliance. The following instances of
noncomollance by major discharaers are Category I
noncompllance:
(A) Violations of conditions in enforcement
orders except compliance schedules and reports.
(B) Violations of compliance schedule milestones
for starting construction, completina constructio
and attaining final comoliance by 90 days or more
from the date of the milestone specified in an
enforcement order or a oertnit.
(C) Violations of permit effluent limits that exceed
the Apnendix A "Criteria for Noncompliance Reportina
in the NPDE<5 Program".
fD) Failure to provide a compliance schedule report for
final compliance or a monitoring renort. This
applies when the permittee has failed to submit
a final compliance schedule progress renort,
pretreatment report, or a Discharge Monitoring
Report within 30 days from the due date specified
in an enforcement order or a permit.
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- ix -
(ill) Category II noncomoliance. Category II noncompliance
includes violations of permit conditions which the
Aqency believes to be of substantial concern and may
not meet the Cateaory I criteria. The following are
instances of noncompliance which must he reported as
Cateaory II noncomnliance unless the same violation
meets the criteria for Cateaory I noncompliance.
(A) (1) Violation of a permit limit;
(2) An unauthorized bypass;
(3) An unpermitted discharge; or
(4) A pass-through of pollutants
which causes or has the potential to cause a water
quality problem (e.g., fish kills, oil sheens) or
health problems (e.g., beach closings, fishinqs
bans, or other restrictions of beneficial uses).
(B) Failure of an approved POTW to implement its
approved pretreatment program adequately including
failure to enforce industrial pretreatment
requirements on industrial users as required
in the approved program.
(C) Violations of any compliance schedule milestones
(except those milestones listed in paragraph
(a)(2){11)(B) of this section) by 90 days or more
from the date specified in an enforcement order
or a permit*
(D) Failure of the permittee to provide reports
(other than those reports listed in paragraph
(a)(2)(ii)(D) of this section) within 30 days
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- X -
from the due date specified in an enforcement
order or a permit.
(E) Instances when the required reports provided by
the permittee are so deficient or incomplete
as to cause misunderstanding by the Director and
thus impede the review of the status of compliance.
(F) Violations of narrative requirements (e.g.,
recruirements to develop Spill Prevention Control
and Counter-measure Plans and requirements to
implement Best Manaoement Practices), which are
of substantial concern to the regulatory agency.
(G) Any-other violation or group of permit violations
which the Director or Regional Administrator ~~""~
considers to be of substantial concern.
(b) Semi-Annual Statistical Summary Report. Summary information
shall be provided twice a year on the number of mafor permittees
with two or more violations of the same monthly average permit
limitation in a six month period, including those otherwise
reported under paraaraph (a) of this section. This report
shall be submitted at the same time, according to the Federal
fiscal year calendar, as the first and third quarter QNCRs.
(c) Annual reports for NPDES.
(1) Annual noncompliance report. Statistical reports shall
be submitted by the Director on nonmajor NPDES permittees
indicating the total number reviewed, the number of
noncomplyinq nonmajor permittees, the number of enforcem "
actions, and the number of permit modifications extendina
compliance deadlines. The statistical information shall
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- XI -
be organized to follow the tynes of noncompliance listed
in paragraph (a) of this section.
(2) A separate list of nonmaior discharges which are one or
more years behind in construction phases of the compliance
schedule shall also be submitted in alphabetical order by
name and oermit number.
(d) Schedule.
(1) For all quarterly reports. On the last working day of
May, August, November, and February, the State Director
shall submit to the Regional Administrator information
concerning noncompliance with NPOES permit reouirements
by major dischargers in the State in accordance with the
following schedule. The Regional Administrator shall
prepare and submit information for EPA-issued permits to
EPA Headguarters in accordance with the same schedule:
QUARTERS COVERED BY REPORTS ON
NONCOMPLIANCE BY MAJOR DISCHARGERS
(Date for completion of reports)
January, February, and March...^May 31
April, May, and June ..... .^-August 31
July, August, and September....^November 30
October, November, and December^February 28
(2) For all annual reports. The period for annual reports
shall be for the calendar year ending December 31, with
reports completed and available to the public no more
than 60 days later.
•'•Reports must be made available to the public for inspection and
copying on this date.
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Appendix A to S 123.45 - Criteria for Noncompliance Reporting
in the NPDES Program
This appendix describes the criteria for reporting violations
of NPDES permit effluent limits in the auarterly noncomnliance
report (QNCR) as specified under S 123.45 (a)(2){ii)(c). Any
violation of an NPDES permit is a violation of the Clean Water Act
(CWA) for which the permittee is liable. An agency's decision as
to what enforcement action, if any/ should be taken in such cases,
will be based on an analysis of facts and legal reouirements.
Violations of Permit Effluent Limits
Cases in which violations of. permit effluent limits must be
reported depend upon the magnitude and/or freguency of the violation,
Effluent violations should be evaluated on a parameter-by-paramete 1
and outfall-by-outfall basis. The criteria for reporting effluent
violations are as foll-ows:
a. Reporting Criteria for Violations of Monthly Average Permit
Limits - Magnitude and Preguency.
Violations of monthly average effluent limits which exceed
or egual the product of the Technical Review Criteria
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- Kill -
a six month period. These criteria apply to all Group I and
Group II pollutants.
Group I Pollutants - TRC=1.4
Oxygen Demand
Biochemical Oxygen Demand
Chemical Oxyqen Demand
Total Oxygen Demands
Total Organic Carbon
Other
Solids
Total Suspended Solids (Residues)
Total Dissolved Solids (Residues)
Other
Nutrients
Inorganic Phosphorus Compounds
Inorganic Nitrogen Compounds
Other
Detergents and Oils
MBAS
NTA
Oil and Grease
Other detergents or algicides
Minerals
Calcium
Chloride
Fluoride
Magnesium
Sodium
Potassium
Sulfur
Sulfate
Total Alkalinity
Total Hardness
Other Minerals
Metals
Aluminum
Cobalt
Iron
Vanadium
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- xiv -
Group I.I Pollutants - TRC=1.2
Metals (all forms)
Other metals not specifically listed under Group I
Inorganic
Cyanide
Total Residual Chlorine
Orqanics
All organics are Group II except those specifically listed under
Group I
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II.C.8,
"Managers' Guide to the Permit Compliance System" June, 1986. Table of
Contents only.
-------
n
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MANAGERS* SUIOC
TO THE
PERMIT COMPLIANCE SYSTEM
APPENDICES
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX 0
Inquiry
Selection Criteria
Glossary
Data Elements Lists
TABLE OF CONTENTS
Executive Sunnary f
1. Introduction \.\
I.I Purpose of this Manual 1.1
1.2 Manager's Role In Relationship to PCS * 1-2
1.3 Organization of this Manual 1-2
2. Overview of PCS
2*1 PCS' Current Capabilities 2*1
2.2 Purposes of PCS 2*2
2.3 Regional and State Participation 1n PCS 2-3
2*4 History of Development 2-4
2.5 Future Capabilities 2-5
2.6 PCS Policy Statement 2-6
2.7 PCS Data Organization 2-6
2.8 PCS Report Capabilities 2-8
3. Management Reports * 3.1
3.1 Reports from INQUIRY 3.1*1
3.2 General Facility Information 3.2*1
3.3 Permit Issuanee/Relssuance 3.3*1
3.4 Evidentiary Hearings 3.4-1
3.5 Compliance Schedules 3.5-1
3.6 Effluent Limits 3.6*1
3.7 Discharge Monitoring Report Tracking 3.7-1
3.8 Effluent Measurements/Violations 3.8-1
3.9 Inspection Tracking 3.9-1
3.10 Enforcement Action Tracking 3.10-1
3.11 Prttreatment Program Tracking 3.11*1
3.12 National Municipal Policy • 3.12*1
3.13 Toxlelty Limits 3.13-1
3.14 Grants ' 3*14-1
3.15 Strategic Planning and Management System 3.15-1
3.16 Quality Assurance 3.16-1
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II.C.9.
"Guide to PCS Documentation" June, 1986. Table of contents only.
(Information only; no longer current).
-------
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GUIDE TO PCS DOCIJMFNTATION
Table of Contents
I. Introduction
II. PCS Overview
* PCS Overview and Example NPDFS Reports
* PCS Pricing Hodel - Executive Summary
* Hodel for Assessing Resource Reouirements (MARO)
- Overview of HARP
- Scenario Questions
III. NPDES Policy
e PCS Policy Statement
* Regional Implementation of the PCS Policy Statement
* water Enforcement National Data Base (WENDB)
0 Agency Operatine Guidance - FY 1985-1986
IV. NPDES Permit Tracking - Issuance
0 Permit Issuance Tracking
'.T; * Permit Tracking Event Codes
• Permit Trackino Event Codes
• Issues Related to NPDFS Permit Limit Compliance
Tracking Using Statistical Base Codes
v. NPDES Permit Trackino - Evidentiary Hearings
0 Conversion of Evidentiary Hearino Data into PCS
VI. NPDES Compliance Tracking - National Municipal Policy
0 National Municipal Policy Trackino in PCS
0 Follow-up to June 3, 1985 Conference Call on
National Municipal Policy Tracking in PCS
• PCS NMP Conference Call
VII. NPDES Compliance Tracking - Inspections
• Use of the New NPDFS Compliance inspection Forn
• NPDES and Pretreatment Inspection Reportina for
FY 1986 Office of Water Accountability System
* Audits of POTWs with Approved Pretreatment Programs
* Pretreatment Audit Reporting Requirements
• Inspections Based on DMR OA Results
Date
3/ 1/85
10/31/85
12/17/85
2/13/84
7/15/85
7/31/85
4/26/85
11/12/85
5/16/85
6/ 4/85
8/29/85
5/14/85
8/ 6/85
8/30/85
12/16/85
12/17/85
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Table of Contents
(Continued)
Date
VIII. Selection Criteria for Strategic Planning
and Management SYSten reports
0 Selection criteria and example reports for SPMS
reporting reouirenents on-
- Inspections
- Perruts
- Evidentiary Hearinos
* National Municipal Policy
IX. PCS Meetings
* Summary of PCS Management Needs Meetina (11/84) 1/14/85
0 PCS Steering Committee Minutes (3/85) 4/12/85
• Minutes of the November Permit Compliance System
(PCS) Users Group Meeting (11/84) 2/22/85
0 Minutes of the April Permit Compliance System
(PCS) Users Group Meeting (4/85) 6/12/85
0 Minutes of the November Permit Compliance System
(PCS) Users Group/Steering Committee Meeting (11/85) 12/24/85
PCS News
4 Permit Compliance System Management Newsletter 2/28/8S
9 Permit Compliance System Status Report 7/ 3/85
* Permit Compliance System Status Report 11/20/85
0 Permit Compliance System Management Status Report 5/1*2/86
9 PCS DBMS User Newsletter #1 6/85
0 PCS DBMS User Newsletter #2 7-8/85
0 PCS DBMS User Newsletter *3 9-11/85
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II.C.10.
"General Record of Enforcement Actions Tracked (GREAT) Conversion to Permit
Compliance System (PCS)", dated July 24, 1987. Supplements II.C.2.
(Conversion completed prior to January 1, 1988).
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
- WASHINGTON. D C 20460
^ ,. - ,
' JUL 2 4 88 I
MEMORA? pl.
OF
SUBJECT: General =ecor^ cf I-force-ent Actions Tricked
System (GPE1?) Conversion to Per-iit CoToliar.c
Systen (PCS)
FROM: J. fcillin J-sr-a-. director
Enforcement Division (EN-338)
TO: Pegional Co-rlii-co 3rancn Chiefs
To furtl^er i-ole-e-t -. -e ?CS Policy StateTieiti, PCS shoul 1
oe jsed to track EFA a^ni-;iscr at »ve orders issued -against NPDES
facilities. T'lis *as ra^^estrii o/ the PCS Steering committee
at tie \ovewoer o-7, .'135, -eetng :-. ^rnapolis, ''aryla^d.
The PCS Policy States it jjrre-.tly requires eatry of enforcenent
actions for ia;ors a--i 32-5"C -iiors ~nly, but the General
Record of ^"forceneit \ct*O"s TracteJ (GREAT) system contains
all EP^i admnistrat ive en f orreier.t actions ("a;ors ^nd -ninors).
To successful I/ convert fro-n 3 = ':iiT '.-3 PCS
agree to enter nto "'CS tne enforcement ac*
and unpen»i tted facilities. This «oul'l nc-
*e would only oe tracking £?A actions. In
enforcement actions -ere taken against ni^
facilities. The total nt^ e"tr/ our lei f,
Regions should
ns igairst all -rumors
ffect States, since
19*36 457 EPA fornal
and 'inperni tted
tne entire nation is
estimated at 26 hours for ore fiscal /ear. ~ne PCS ADE Screens
necessary for this data entry are attacned, and tne amount of
data entry is obviously quite small. We wouli only give credit
for those AOs entered into PCS, as we presently Jo for N'PBES and
pretreatment inspections.
Under this program the GREAT System woi 11 oecome a historical
data base. rfe would continue to track close-outs of administra-
tive enforcement actions currently in tne G--~AT system to ensure
consistent accountability. All quarterly measures for tracking
EPA NPDES administrative orders for the Strategic Planning and
Management System (SPMS) would be retrieved fro-a PCS in FY 1933.
We would, "however, rake parallel retrievals from GPEAT and PCS for
the third and fourtn Quarters of FY37 to give ever/one time to
ensure t.nat all t-eir enforcenent actions ar i -rei.ng entered into
PCS.
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-2-
The plan is to enter into PCS all data for EPA enforcement
actions taken against majors, unperaitted facilities and all
minors. "Hardcopies" of the administrative orders, notices of
violation, 404 actions (dredge and fill violations), 311 actions
(5PCC and CG referrals), and closeouts would continue to be sent
to Headquarters. Please review the attached proposal for PCS
data entry and its attachments. We have scheduled a conference
call (FTS 382-2603) with each of you at 1:00 p. a. Eastern Daylight
Savings Tiae on July 30, 1987, to discuss the proposed conversion.
Please call Larry Reed or George Gray (FTS 475-8313) if
there are questions before the July 3Cth conference call. We
will call you to assure tnat you received this notice.
Attachments
-------
II.C.ll.
"GUIDANCE FOR REPORTING AND EVALUATING POTW NONCOMPLIANCE WITH PRETREATMENT
IMPLEMENTATION REQUIREMENTS", dated September, 1987.
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ri UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
" WASHINGTON. DC 20460
September 30, 1987
of
WATf A
MEMORANDUM
SUBJECT. Guidance for Reporting and Evaluating POTW Noncomphance
with Pretreatment Implementation Requirements
FROM: Japes R. Elder. Director
of Water Enforcement and Permits
TO: Regional Water Management Division Directors.
NPDKS Stale Prelreatment Program Directors
The Office of Water Enforcement and Permits has completed development of a guidance for evaluating
and reporting noncomphance by Publicly Owned Treatment Works (POTWs) that have failed to
implement their approved pretreatment programs The Guidance identifies criteria for evaluating the
principal POTW activities that are essential to full) implement most local programs I'OI Ws thai meet
the criteria in the definition should be reported by EPA and approved States on the Quarterly
Noncomphance Report (QNCR)
These criteria were developed by an EPA workgroup and presented to States and Regions at the
National Pretreatment Coordinators Meeting, December 17, 1986 Draft guidance was developed and
circulated for comment in May 1987 In general, your comments supported the criteria that were
proposed in the draft We also received comments from former PIRT members As a result, the final
guidance has been modified in two areas Under the criteria for POTW inspections of SIUs, the percent
coverage has been increased to 80% of the levels required in the permit or approved program If no
specific permit or program requirement was established the guidance recommends reporting any POTW
that failed to sample or inspect at least 50^ of its SIUs in a 12 month period The second area of change
was for enforcement of pretreatment standards Several PIRT comments wanted a specific criterion for
failure to develop adequate local limits Instead of adding new criteria, we expanded the discussions
under the criteria for issuance of SIU control mechanisms, implementation of pretreatment standards,
and enforcement against interference and pass-through The discussions include minimum local limit
requirements and recommended procedures to resolve these and other deficiencies of approved
programs.
For FY 1988, EPA Regions and States should use this guidance to identify POTWs that are failing to
implement their approved programs and should report them on the QNCR While formal enforcement
is not automatically required as a response to noncomphance reported on the QNCR, Regions and
approved States should seriously consider the use of an administrative order (and, perhaps, with a
penalty depending on the egregiousness of the lack of implementation) to establish a schedule to correct
the violations The Strategic Planning a>nd Management System for FY 1988 contains two measures
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-2.
WQE-12 which addresses the POTWs compliance assessment process; and WQE-13 which will tra
how frequently POTW noncompliance is addressed by formal enforcement Further explanation of thi •
measure can be found in "Definitions and Performance Expectations" in "A Guide to the Office of
Water Accountability System and Mid-Year Evaluations" (Fiscal Year 1988) EPA Regions should assist
States in applying the definition of reportable noncompiiance. identifying noncompl) ing POT^s and
tracking cases *here formal enforcement is taken The Office of Enforcement and Compliance
Monitoring is developing more specific guidance on the criteria for judicial referrals and the burden ot
proof for demonstrating noncompliance for POTW pretreatment implementation That guidance will
be distributed to the Regions for review before it is made final
If you have questions regarding the guidance or SPMS reporting, please contact nill Jordm Dirnaor
Enforcement Division, or Anne Lassiter. Chief, Policy Developrr. Branch (202 4~5->'»<)") I he ^tatt
contact is Ed Bender (202/475-8331).
cc* Glenn Unterberger
Gerald Bryan
Pretreatment Coordinators. EPA and States
Regional Compliance Branch Chiefs
Regional Counsels
Rebecca Hanmer
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GUIDANCE FOR
REPORTING AND EVALUATING
POTW NONCOMPLIANCE WITH
PRETREATMENT REQUIREMENTS
I niKt.1 St.itLv \ nMrnnnuni.il I'ruUition
Office of W.uer
Office of Neater r.nfnrttmtm Pcrmiis
Washington, D C
September 30. 1987 *
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TABLE OF CONTENTS
I. Introduction 1
A. Background 1
B Existing Rule 1
C Definition of Reportable Noncompliance 2
II. Applying the Criteria 4
A Failure to Issue Control Mechanisms to Significant IUS in
a Timely Fashion 4
B Failure to Inspect Significant IUs 5
C Failure to Establish and Enforce IU Self-Monitoring
where Required by the Approved Program 5
D Failure to Implement Pretreatment Standards 6
E F allure to Hnforce Against Pass-Through and Interference 8
F I ailure tn Submit Pretreatment Reports Within 10 days 9
G I ailure to m<.U Compliance Milestones b> 90 days or more 9
H Any Other Violation(s) of Concern to the Approval Authority 9
III. Reporting on the QVCR 10
A Format 10
B Ik script ion ol the Nuruompliancc 10
C C omplianki* Status 11
IV. Examples of Report ing on the QNCR 12
A Example 1 12
B Example 2 13
V. Compliance Evaluation 14
VI. Response to Noncompliance 17
VII. Sum man 18
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L INTRODUCTION
A. Background
EPA Regions and NPDES States must report certain permit violations on the Quarterly Noncomphance
Report (QNCR) which meet criteria identified m the existing NPDES Regulations (40 CFR Part 123 45)
One of the violations that must be reported is a POTW's failure to adequately implement its approved
pretrealment program The interpretation of adequate implementation is current)} left to the discretion
of the Region dnd approved States
The Office of Water Enforcement and Permits has developed a definition of reportable noncompliance
for POTW pretreatment program implementation which establishes criteria to evaluate adequate
implementation Although the size and complexity of local pretreatment programs varies greatly among
Control Authorities, all POTWs must perform certain basic activities to implement their pretreatment
programs The definition of reportable noncompliance establishes criteria in five basic areas of POTW
program implementation IU control mechanisms, compliance monitoring and inspections, POTW
enforcement; POTW reporting to the Approval Authority; and other POTW implementation
requirements
The purpose of this Guidance is to explain the basis for the definition and its criteria, provide examples
of ho* to applv the the criteria explain how to report noncompliance for POTW pretreatment program
implementation (in the QNCR .md suggest appropriate responses to noncompliance This Gufd.ince
should he used m fulfill requirements for reporting POTW pretreatment noncomplunce thit arc
described in the I Y I'JXK Agency Operating Guidance and included as a performance measure for L P\
and approved State programs under the Strategic Planning and Management Svstem (SPMS)
R. Enisling Rule
The QNC R is the basic me*.nanism for reporting violations of NPDES permit requirements Major
}'() I \V JH rmitte i s1 must be reported on the QNCR
(1) if tht \ in under an enforcement order for previous permit violations, or
(2) if their noncompliance meets specific criteria (Category I noncompliance). or
(3) if the regulatory agency believes the violation(s) causes problems or is otherwise of concern
(Category II noncompliance)
The specific requirements of the existing rule which relate to pretreatment program implementation are
as follows-
1 Enforcement Orders • All POTWs that are under existing enforcement orders (eg, \,
administrative orders, judicial orders, or consent decrees) for violations of pretreatment }'
implementation requirements must be listed on the QNCR and the compliance status must /
be reported on each subsequent QNCR until the POTW returns to full compliance with the /
implementation requirements
1 Major POTW permittees are ihose with a dry weather flow of at leasi 1 million gallons per day or a BOD/TSS loading
equivalent to a population of at least 10000 people Any POTW (including a minor POTW) with an approved local
prctreatmem program should have its pretreaiment violations reported on the QNCR
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Categon I pretreatment program noncnmpHance - A POTW must he reported on the QNCR.
a) if it violates any requirements of an enforcement order, or
4"
b) if it has failed 10 submit a pretreatment report (e g., to submit an Annual Report or t
publish a list of significant violators) within 30 days from the due date specified in the '
permit or enforcement order, or
c) if it has failed to complete a pretreatment milestone within 90 davs from the due date
specified in the permit or enforcement order
Category II - A POTW must be reported on the QNCR if the instance of noncompliance is
a) a pass-through of pollutants which causes or has the potential to cause a water quality
problem or health problem.
b) .1 failure of an approved POTW to implement its approved pnnpum udt'tjunU'h (emphasis
added], including failure to enforce industrial pretreatment requirement* on industrial
users .is required by the approved program.1 or
c) any other violation or group of violations which the Director or Regional Administrator
considers to be of substantial concern
C. Definition of Reportable Noncompliance
OWE? has developed criteria to evaluate local program implementation that explain and clarify the
existing regulations As stated, these criteria highlight activities that control authorities should use to
implement their programs These activities include
*
I) establishment of IL* control mechanisms.
2) POTW compliance monitoring and inspections,
3) POTW enforcement of pretreatment requirements.
4) POTW reporting to the Approval Authority, and
5) Other POTW implementation requirements
Collectively, these activities are the framework for the definition of reportable noncompltance (Table
1), which should be used by EPA Regions and approved States to report POTW noncomphance with
pretreatment requirements on the QNCR *
The following table summarizes the reportable noncompliance criteria A more detailed explanation of
their application is contained in Section II of this guidance
The permit should require compliance with 40 CP* pan Section 403, and the approved program Thus the permit is the
basis for enforcing requirements of (he approved p iram or the Pan 403 regulations
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TABLE 1
DEFINITION OF REPORTABLE NONCOMPLIANCE
A POTW should be reported on the QNCR if the violation of its appro*ed pretreatment program, its
NPDES permit or an enforcement order1 meets one or more of the following lettered criteria for
implementation of its approved pretreatment program
i. Issuance or II' Control Mechanisms
A) Failed to issue, reissue, or ratify' industrial user permits, contracts, or other control
mechanisms, where required, for "significant industrial users", within six months after
program approval Thereafter, each "significant industrial user" control mechanism should
be reissued within 90 days of the dale required in the approved program, NPDES permit,
or an enforcement order
II. POTW Compliance Monitoring and Inspections
B) Failed to conduct at least eighty percent of the inspections and samplings of "significant
industrial users" required by the permit, the approved program, or an enforcement order
C) fiikd to establish and enforce self-monitoring requirements thit .ire ne'iesxirv to monitor
Sit compli inn as required h\ the .ipprovt.il progr im the MMM S pi rnut or .in enforcement
order
III. POTV\ FnfinTcmenl
D) Failed to develop, implement, and enforce pretreatmenl standards (including categorical
standards and local limits) in an effective and timi'lv manner or as required In the approved
program M'OI S permit or an enforcement order
L) failed to undertake effeitivc enforce, mint against the nuliistri it usii(s) tur mst mccs ol
pass-ihrouuh mil interference as defined m 4H C f K Sution 10* T mil riquired b\ Section
•40* ^ anil defined in ihe approved program
IV. POTW Reporting to the Approval Authorit)
F) Failed to submit a pretreatment report (eg. annual report or publication of significant
violators) to the Approval Authority within 10 days of the due date specified in the NPDES
permit, enforcement order, or approved program *
V. Other POTW Implementation Violations
G) Failed to complete a pretreatment implementation compliance schedule milestone within
90 da\s of the due dale specified in the NPDCS permit, enforcement order or approved
program *
H) Any other violation or group of violations of local program implementation requirements
based on the NPDES permit, approved program or 40 CFR Part 401 which the Director or
Recional Administrator considers to be of substantial concern *
J The term enforcement order means an administrative order, judicial order or conxrm deuce (Sic Section 123 45;
* Existing QNCR criterion {40 CFR Pan 123 45), the violation mini be reported
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II. APPLYING THE CRITERIV
f
The criteria for reporting POT^V noncomphance with pretreatment requirements are based on the
General Pretreatment Regulations [particulady Section 403 8(0(2)]. approved pretreatment programs,
and NPDES permit conditions (particularly Part III) Where specific conditions, deadlines, or
procedures are specified in the regulations or the approved program, and incorporated or referenced
in the NPDES permit. POTW performance should be evaluated against those requirements. Any failure
to meet those requirements is a violation The criteria included m this Guidance establish a basis for
determining when a violation or series of violations should be reported on the QNCR for failure to
implement a pretreatment program If the POT\\ is identified as meeting one or more of the criteria.
the POTW should be considered in reportahle nontomphance and reported on the QNCR
POTW performance should be evaluated using the information routmelv obtained from pretreatment
compliance inspections annual reports, pretre.itment .nidus and Discharge Monitoring Reports
(DMRs) as well as any special sources of inform ition Ml .innu.il reports should include a PretrcMtment
Performance Summary of SIU compliance information * I his summary should be useful to assess the
effectiveness of prefre iinn nt impluninlation Pu lr«. itnit nt •»! »!t shouUt rtva* the approved program
the NPDCS permit, and any correspondence with the POFXV. regarding its pretreatment program to
identify any specific procedures, levels of perform.mce or milestones that m.iy apply to implementation
of the particular program Where these requirements exist thev should he recorded on fact sheets and
puvsibly added to the specific requirements m the permit
ISS1 \MFOt II (OMKOI MK II \MSMs
A. Failure tn Issue Control Mechanisms in Significant II s in a Iimt'K Fashion
The POTW can use contracts* individual permits or sewer usi ordinances as control met Nanisms
Control mechanisms establish enforceable limits, monitoring conditions, and reporting requirements
for the industrial user In some cases, an approved progr TI may have a stwer use ordinance that defines
the limits (including Itxal limits) and a separate mechanism for establishing monitoring conditions at
each facility Technically, il a control mechanism expires, control ot the S1L and enforcement of some
pretreatment requirements may be suspended Therefore, timely issuance and renewal of all control
mechanisms is essential
All Control Authorities must apply pretreatment standards to their industrial users Where the approved
program requires that individual control mechanisms be developed for significant industrial users, but
does not include a timeframe. the POTW should be given a deadline to issue them Some States include
schedules for issuing specific SIU permits in a POTW'i NPDES permit Where the POTW has missed
two or more deadlines specified in a permit or enforcement order for issuing individual control
mechanisms by 90 days or more, the violation must be reported on the QNCR as a schedule violation
In general, EPA believes that where individual control mechanisms are required by the approved
program, the POTW should issue control mechanisms to all SfUs within six months after the program
is approved or after new pretreatment standards (categorical or local limits) are established, so that
full implementation can be evaluated by an audit within one year after approval Any delay in this
schedule should be reported on the QVCR
5 USEPA Preireatmem Compliance Monitoring and Enforcement Guidance (PCME) 1'WA Recommended specific data
EPA proposed rules for annual reports thai include (he PCME data
* Proposed rule change to 40 CFR 403 on June 12, 19H6 (51 £g 21454) would make contracts an unacceptable control
mechanism to obtain penalties
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The POTW should also maintain and update its inventory of SIUs EPA is considering further
rulemaking to require annual updates of the IU inventor) bv all POTWs The IU imentory is the
foundation for applying pretreatment controls and monitoring IL compli.mce POTVVs that fail to
maintain an adequate inventor) of SIUs and annual!) update the inventor) should he reported on the
QNCR Where necessary, permits should he modified to require routine updates of the II1 imentory
POTVV C OMI'U \NCK MOMTORINf, \M) INSPECTIONS
B Failure In Inspect Significant Industrial Lscrs
POTWs are required to possess the legal aulhont) to carr) out all inspection surveillance, and
monitoring procedures necessarv, to \erif) the compliance status of their industrial users independent
of information provided h\ the industrial user [40 CFR 4fn X (0(4)] In the PCMF. Guidance. EPA
recommended that the Control Aulhontv conduct at least one inspection and/or sampling visit for each
significant industrial user annual!)
The approved program and/or the NPDES permit may establish other requirements for inspections or
use a different definition of significant industrial user In those cases where the permit or approved
program identifies specific requirements for inspection ind s.implmg these requirements should he
used as .1 basis to cv.ilualc PO J~V\ compliance If the POl*\\ has failed to inspect or sample .it least 80^
of the significant industrial users .is required K the permit or the approved program the POIW should
he reported on the QNC R lor its failure inspcsl POI V» sampling of .ill II s is essential to evaluate IU
compliance where It's do not submit silt monitoring information In the ahsence of specific inspection
coverage requirements ,n the- tpproved program or permit the Approval Authoritv should report any
POT\s which has not inspected or sampled at least *n''r of all SILs within a 12 month period In addition,
if the approved program or permit does not contain specific criteria the Approval Authority should
modifv I he NPDI S permit to he Mire th it tlu I'OI\V ci'tuhuts inspections or sampling visits of all
Sll.s at least annuailv
C. Failure-tn Establish and Fnfuru II Self Monitoring whert Required In the \pproved l'nij;ram
All categorical II s are required to rcpt rt at least twice a vear [40 C I R (4U> 12)] POI Ws also have
authority to require monitoring and reporting from non-categorical lUs As a result, most POTWs have
established self-monitoring requirements for SILs as a means of securing adequate data to assess SIU
compliance at less cost to the POTW than if all data were developed by the POTW through sampling
Where a program does not require SIU self-monitoring, the visas and inspections conducted by the
POTW must he sufficient in scope or frequence to assure compliance
RJ self-monitoring requirements should specif) the location, frequency and method of sampling the
waste-water, the procedure for analvsis and calculation of the result, the limits, and the reporting
requirements These self-monitoring requirements mav he applied in ge-neral. through an ordinance,
through specific control mechanisms or through a combination of general and specific, mechanisms
Where self-monitoring is used, it should he required frequenti) enough to accurately demonstrate the
continuing compliance of the SIU \ POTW mav use a combination of SIU self-monitoring and its own
data collection to evaluate SIU compliance- with its limits \s a guide FPA has published self-monitoring
frequencies for significant industrial users in it ire rel iled to their process wastestream flow rates (See
section 2 2 of the PCME Guidance)
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fn most situations effluent monitoring information should be available so that the compliance of a SIU
with a monthly 4-U,i\ or other average limit can be determined at least once a quarter This frequency
is higher than the implied minimum in the regulations, however, this frequency is more likely to promote
continued compliance and a more timely POTW response to violations Under proposed rules7 for
pretreatmem, SIU violations would trigger additional self-monitoring. For each violation the SIU
detects, it would be required to resample and submit both sample results for review by the Control
Authority
In evaluating compliance with this criterion. EPA and approved States should examine the requirements
of the permit and determine whether the Control Authority has established self-monitoring
requirements as required Where appropriate requirements have been established, the Control
Authority must ensure that SIUs comply with all aspects of the requirements and report in the manner
required in the control mechanism Where the Control Authority fails to establish appropriate
requirements or to idequ.itely enforce (e g POTW should respond in writing to all SNC violations for
IU self-monitoring) ihi-st. requirements once established the Control \ulhority should be considered
in noncomphancc and listed on the QNCR
POTVV ENFORCEMENT
I). Failure to Implement Prclreatmenl Standards
I. Application nf IJK.I! Limits
Implementation ul puttc itment standards requires ihe development of linal limits .is well as the
enforcement ul all pulre.itment standards The discussion of local lin .ts in the preamble to the I'WI
General Prcire.tlrnem Regulations states in part "Those (local) limits are developed initially as
prerequisite to PO INV pretreatmem program approval and are updated thereafter as necessary to reflect
changing conditions at the POTW" In order to comply with their permit and the regulations, each
POTW should have already conducted a technical evaluation, using available techniques, to determine
the maximum allowable treatment plant headworks (influent) loading for six metals (cadmium,
chromium, copper, lead, nickel and zinc)* and other pollutants which have reasonable potential for
pass-through, interference, or sludge contamination. Therefore, any POTW that has not conducted this
evaluation and adopted appropriate local limits should be reported on the QNCR for failure to
adequately implement their approved pretreatmem program.
If any POTW program has already been approved without the analysis of the impact of the pollutants
of concern and adoption of local limits, the Approval Authority should report the POTW on the QNCR
and immediately require the POTW to initiate an analysis and to adopt appropriate local limits This
requirement should be incorporated in the POTW's NPDES permit as soon as feasible. Where a POTW
has previously adopted local limits but has not demonstrated that those limi" are based on sound
technical analysis, the Approval Authority should require the POTW to demonstr- e that the local limits
are sufficiently stringent to protect against pass-through, interference and sludge contamination POTWs
which cannot demonstrate that their limits provide adequate protection should be reported on tne
QNCR and required to rev ise those limits within a specific time set forth in a permit modification
7 See proposed jmtiulminit it>(«tfiu.r.iJ Pretrejiincnt Regulations 51 FR2154 June 12, 1986
8 Sec iliMUsMon frt>m Rcbcuj Hjnmcr, Director. OWEP USEPA NkmiiranUum "Local Limns Rtquin.nn.ms for POTW
Prcueatrrn.ni Prugramx" August S, 1985
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2. POTW Enforcement and IU Significant Noncompliance
The Control Authority must have the legal authonty-usually expressed through a sewer use
ordinance-to require the development of compliance schedules by lUs and to obtain remedies for
noncomphance, including injunctive relief and civj cr criminal penalties [40 CFR 403 8(f)(iv) and (vi)]
in addition, the Control Authority must have an attorney's statement, which among other things.
identifies how the Control Authority will ensure compliance with pretreatment standards and
requirements and enforce them in the event of noncomphnnce bv industrial users [Section
401 9(b)fl}f m)] Further procedures for enforcement mav he contained in the approved program, sewer
use ordinance or NPDES permit
The attorney's statement and compliance monitoring sections of the approved program, taken in
combination with the .NPDES permit, may provide a comprehensive set of enforcement procedures
which the POTW should follow to ensure the compliance of industrial users with pretreatment standards
Where smh procedures are inadequate. EPA stronglv recommends that POTWs develop written
enforcement procedures which describe how and when enforcement authorities are applied (See section
3 3 of the PCME) These procedures serve to inform industrial users of the likely response to violations
and assist the POTW in applying sanctions in an equitable manner
The Approval Authority must periodically evaluate whether the POTW is effectively enforcing
pretreatment standards In evaluating performance, the Approval Authority should examine both
whether ihe J'OJ~W is following its enforcement procedures and whether the program is effective in
ensuring compliance with pretreatment standards One of the indicators the Approval Authont) should
use in evaluating effectiveness is the level of compliance of SIL's with pretreatment standards Where
the level of significant noncompliance (SNQ* of SIL's is 20^ or greater, there u» a reasonable
presumption that the Control Authoniv is either not effectively; enforcing its procedures or that the
procedures are inadequate The- burden of proving that this is not the case should fall on the Control
Authoritv
i P\andNPI)| S Si tu-s h IU lxin using a definition of signific ml noncompli mu for major permittees
to set priot ities lor lotin.il cnlorccnu.nl and as a tool to evaluate the etlccttvcness ol Region.il and State
uunpli m«.f programs Major industrial pcrmillccs a subset of all itulustrul permittees, general!) have
the largc'M direct discharge flows, and highest toxic pollutant loadings Therelore their noncompliance
has the grc'aicst potential to adverse!) affect water qualit) or pose human health problems In terms of
priorities, the significant industrial users within a POTW should be considered to be similiar to the
major industrial permittees by the approved Stale or EPA Region
Enforcement follow-up by EPA Regions and approved Stales is generally considered to be effective if
the levels of significant noncompliance among major industrial permittees is maintained below 6%
Given the lact that most approved pretreatment programs are still relatively inexperienced, a 20% level
of SNC for SIUs appears to be a reasonable starting point to assume that POTW enforcement is
inadequate As POTNVs gain experience, the level of SNC should decrease, and thus, this definition can
be made more stringent
Set SNC definition included m section 14 1 of the PCME The AN PR fur the Domestic Swage Study recommended that
the definition of SNC in (he PCME be incorporated into the definition of significant violators for industrial users (Section
4l)t tst
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3. Enforcement Response Procedures
Although most approved programs describe the authorities that are available to the POTW and e
procedures for addressing SIU noncomphance, few programs specify what action will be taken or w
it should occur POTWs have been required to develop enforcement response procedures under cons n.
decrees with specific timeframes for initiating informal to formal enforcement. These timeframes range
from 14 to 60 days
While a specific timeframe for POTW action against an SIU in SNC has not been set, as a general rule
EPA recommends that a POTW respond initially to each violation within 30 days from the date the
violation is reported or identified to the POTW As part of the initial responses, the POTW should
evaluate the violation and contact the SIU (e g, telephone call, warning letter, or meeting) Where
formal enforcement is needed as a subsequent enforcement response, the appropriate timeframe is 90
days from the date of the initial response to the violation This timeframe is equivalent to the expectation
for initiating formal enforcement in the NPDES program
The Approval Authority should review the Control Authority's actions carefullv to determine whether
il has evaluated the violations and contacted the SIU in a tinielv m inner est.ii.itmg the response, when
compliance is not achieved If this review reveals that the Control Authority ha* otten not followed its
own procedures or that the Control Authority has not appropriately used its full authorities to achieve
compliance by its SIUs. the Control Authority should be judged to be m noncomphance
Where the Control Authority is judged to have followed its procedures in almost all cases. Hut the level
of significant noncompliance among SIUs is 20*% or greater, the adequacy of Control Authority
enforcement procedures should be reviewed If the procedures are found to be inadequate the
procedures should be modified The Approval Authority might require modification of the approved
program, through the NPDES permit or possibly an administrative order requiring the adoption of new
procedures along the lines of those included in the PCME Guidance The Control Authority should
listed on the ONCR in noncomphance until it has taken those actions required of it by the Appr
Authority
Even where the SIUs have a low level of significant noncompliance, the Approval Authority should
review the performance of the Control Authority to ensure (hat it is. in fact, implementing its
enforcement procedures and that the procedures are adequate to obtain remedies for noncompliance
For example, where a Control Authority fails to identify all violations or fails to respond to violations
when they do occur, the POTW should normally be identified as in noncompliance on the QNCR.
E. Failure to Enforce Against Pass-Through and Interference
Definitions of industrial user discharges that interfere with a POTW or pass-through the treatment
works were promulgated January 14, 1987 (52 FR 1586)
Interference generally involves the discharge of a pollutant(s) which reduces the effectiveness of
treatment such that an NPDES permit limit is exceeded The pollutant that caused the interference will
be different from the pollutant in the permit that was exceeded (If the pollutant that causes the violation
is the same as the pollutant in the permit that was exceeded, pass-through has occurred ) The POTW
is responsible for identifying and controlling the discharge of pollutants from FUs that may inhibit or
disrupt the plant operations or the use and disposal of sludge The POTW must monitor IU contributions
and establish local limits to protect its sludge
The POTW should have written procedures to investigate, control and eliminate interference and
pass-through. Whenever interference or pass-through is identified, the POTW should apply such
procedures to correct the problem Section 403 5 of the General Pretreatment Regulations requires
that the POTW develop and enforce local limits to prevent interference and pass-through from mdus
contributors to the treatment works If a POTW has permit limit violations that are attnbutabl
industrial loadings to its plant, it is also a violation of Sect i 403.5 The POTW should be reported on
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the QNCR for failure to enforce against pass-through and/or interference, if the POTW has two or
more instances of pass-through and interference in any month or 3 or more instances in a quarter.
The POTW is responsible for monitoring to detect these discharges and enforcing against the IU where
it contributes to permit exceedances The PCME Guidance recommends one inspection and/or sampling
visit each year for each SIU Many Approval Authorities require the POTW through its NPDES permit.
to monitor the influent, effluent, and sludge at least annually to evaluate the potential for interference
and pass-through In a few cases, special monitoring has been required for septage and other waste
haulers or to monitor corrective actions for past violations of interference and pass-through POTWs
that fail to have quarterly monitoring of their SILs (by the POTW or SIU as discussed under the previous
criterion) and/or have not developed appropriate local limits to prevent interference or pass through
are generally unprepared or unable to enforce against interference or pass-through These POTWs
should be reported as failing to adequately implement their pretreatment programs.
POTW REPORTING TO THE APPROVAL AUTHORITY
F. Failure to Submit Pretreatment Reports Within 30 days
This criterion already exists under Category I of 40 CFR Part 123 45(a) The term "pretreatment report"
should be interpreted to include anv report required by the Approval Authority from the POTW
(including publication of significant violators in ihe newspaper as required by Section 401 8(f)(2)(vu)
of the Cieneral Pretreatmeni Regulations) Where specific dates are established for these or other
reports from the POTW ihev mav be tracked as schedule requirements in PCS When deadlines are
missed, the POTW should be notified immediate!) because these reports contain information which is
essLnti.il lo ditermmc compliance status \\hen the due date is missed by 10 da>s or more, the POTW
should be reported on the QNCR as m mmiompliance
OTHER POTW IMP! EMFVIXTION VIOLATIONS
G. Failure to meet Compliance Schedule Milestones b> 90 Davs or more
Compliance schedules are frequently used to require construction of additional treatment, corrective
action. Spill Prevention Contingency and Countermeasure plans, additional monitoring that may be
needed to attain compliance with the permit, and any other requirements, especially local limits. The
schedules divide the process into major steps (milestones) that can he verified by inspection or review.
Most schedules include progress reports EPA recommends that the milestones be set at least every six
months throughout the schedule The schedules can be incorporated as part of the permit if final
compliance will not exceed the regulatory compliance deadline If the compliance schedule is to resolve
a violation that has occurred after the regulator) compliance deadline, the schedule must be placed in
an administrative order, judicial order, or a consent decree
The existing rule for QNCR reporting requires that all permittees be listed on the QN'CR if they are
under an enforcement order If the permittee is in compliance with the order, the compliance status is
"resolved pending" If the permittee has missed a compliance schedule date by 90 days or more, the
permittee musi be reported as noncompltant on the QNCR For POTW pretreatment programs, a failure
to attain final compliance within 90 days of the compliance deadline in an enforcement order is
considered SNC
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H. Any Other Violations) of Concern to the Approval Authority
This criterion allots the Approval Authority to identify any POTW as in reportable noncomplumce fo
a single violation or any combination of violations which are judged to be important even though t
may not be covered by the specific criteria in the definition. These violations may include instanc .
where the approved program and/or implementation requirements are considered to be inadequate to
control IU contributions to the POTW (e g. failure to develop and/or enforce local limits), to monitor
for SIU compliance with pretreatment requirements, or to enforce requirements and obtain remedies
for SIU noncompliance
III. REPORTING ON THE QNCR
The Quarterly Noncompliance Report is prepared by NPDES States and EPA Regions each quarter
It lists violations of Federally designated major NPDES permittees that are of concern to the Xgency
The format is described in Section 123 45{.i) of the Regulations For each instance of norttompliance
the report must show the date, basis and type of the violation, the date and type of action the agency
has taken and the current compliance status The agencv should also explain mitigating aruirmnnees
or remedial actions which 'he permittee m iv ha\e planned Detailed guidmic tor preparing the (JNC R
is available upon reques o the Regions or OWEP The following discussion summarizes the basic
requirements for reporting POTW pretreatment violations
The QNCR must be submitted to EPA Headquarters sixty days after the reporting quarter ends The
QNCR covers Federally designated majors Generally, a POTW over 1 MOD is automatically designated
as a major This includes the vast majority of the POTW Control Authorities All POTW pretreatment
implementation violations should be reported on the QNCR. regardless of whether the control authority
is classified as a major or a minor POTW
A. Format
The general format for the QNCR is. described in the Regulations A list of abbreviations and co
used by the Slate Agency or EPA Region that prepares the report should be attached to each QNCR
If the Permit Compliance System (PCS) is used to generate the QNCR, standard abbreviations are
automatically used and no special list of abbreviations or codes is needed for the submittal to
Headquarters (Note that a list of abbreviations may be needed for Freedom of information Act
requests) The format is intended to provide the minimum information that is necessary to describe the
violation, show how and when the agency responded, explain any mitigating circumstances or clarifying
comments, and indicate the current compliance status of the permittee.
The description of the permittee should include the name of the permit holder, the name of the
municipality, and the NPDES permit number The permittee should be the Control Authority for the
local pretreatment program. If other municipal permittees are subject to the Control Authority, they
should be listed under the comments portion of the entry The Control Authority is responsible for
violations by other permittees covered by the Control Authority's pretreatment program Similarly,
industrial users that contribute to the violation should be listed under comments.
B. Description of the NoncompHance
Under the permittee's name and permit number, information on each instance of noncompliance must
be reported For pretreatment violations, the desc-iption should summarize the criteria that were
violated and reference the QNCR Regulation subparagraph The subparagraph of the August 1985
Regulations that apply would be as follows
10
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QNCR (Section 123.45)
T)pe of violation Regulation Subparagraph
1) Failure to implement or enforce industrial pretreatment (a)(ii()(B)
requirements
(Cnterid A-E)
2) Pretrcatment Report - "Wdavs overdue (j)(u)(D)
(C ntcrion P)
"?) Compliance schedule - 90 days overdue (a)(m)(C)
(Criterion G)
4) Other violation or violations of concern (a)(ut)(G)
(Criterion H)
The criterion should he Irsted under the type of violation as the example (Section IV) shows
Each violation should include the djte If the POTW has missed a deadline, the deadline is the date of
the violation The last day of the month is used as the violation date for violations of monthly averages
In some cases, the Agency may have discovered the violation through an audit or inspection of the
POTW program The inspection/audit date should he noted under comments In the examples, all dates
on the QNCR are written in six digit numhers representing the month. d.i> and year The date. January
9 I9K7 is entered as OlO'JsT fur the PC S generated QSCR
The Region or approved Stale should contact the POTW prnmptlv when a pretreatment implementation
violation is detected !*he Region/State should also indicate Us response to the POTW's failure to
implement tn approved program on the QN'CR In determining the appropriate response, the
Region/Slate should consider the impact of the violation. POTW compliance history the number of
SIUs and the nature mil/or duration of the viol ttion Initial violations m.iv he resolved through training.
conferences or on site reviews l"he Region il, State response should he tirne'lv and escalate to formal
enforcement ( in administrative* order ot juduial referral) if the I'CJlW fails or js unable to comply in
a timelv fashion (sn. txamplc 2) Hie date the action was t iken should also be indie ited on the QNCR
Planneel let ions hv the P() 1 W or its II s md projected dates should be noted under comments
C. Compliance Status
The QNCR also tracks the status of each instance of rcpurtahle noncompliance Three status codes are
usually reported noncomphance (NC), resolved pending (RP). and resolved (RE) "Noncompliance"
means the violation or pattern of violations »s continuing "Resolved pending" means the permittee is
making acceptable progress according to a formal schedule (le, through an administrative or judicial
order) to correct the violation "Resolved" means the permittee no longer exceeds the QNCR criteria
for whieh thev are listed for the "noncompliance" and "resolved pending" status, the status date is
generally the last date of the report period The status dale for "resolved" is either the date the
noncompliance requirement is fulfilled or the last dav of the report period in which the permittee no
longer meets the QNCR criteria
The "comments' column can be used to describe the violation explain permittee progress, indicate
potential remedies projected dates ot compliance and explain agency responses Other information can
also be reported under comments, including the name of noncompl>mg SIUs, the level of performance
or degree of failure bv the POTW, the names of other permittees that are covered by the Control
Authont), agency plans for training or technical assistance, and the manner in which the agency learned
of the v tolation
11
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IV. EXAMPLES OF REPORTING ON THE QNCR
The following exjmples illustrate how violations and agency responses are reported Example 1 is a
moderate size POTW that has refused to implement the program Example 2 is a small POTW whic
needs assistance. In each example, instances of noncomphance were addressed by an administrate
order after an initial warning
A) Example 1
Scenario: Hometown's pretreatment program was approved in June 1985 The permit required an
annual report, fifteen davs after the end of each year, beginning January 15. 1986 The
program required that permits be issued to 15 SIUs by June 30.1986 The POTW was audited
in August 1986 and had failed to permit and inspect its lUs and failed to submit an annual
report
QNCR Listing
INSTANCE OF
NONCOMPLIANCE
Issue permits
(Criterion A)
Hometown WWTP. Hometown.
RFG
DATE SUBPARA
063086 (m)(B)
US 00007
ACTION COMPIUNCF
(AGENCY/OATH TTATUS {DVT»
Audit RP (0^187)
Inspect SILK
(Criterion B)
Submit Annual
Report
(Criteria F)
COMMENTS
081086 (iiO(B)
AO #i:*
(St.ite/UUis7j
Audit
RP (0^1187)
(Sl.ite/(miH7)
011587
00(C)
Phone call RP (033187)
(State/013087)
AO4M23
(State/033187)
AO requires submission of annual report by 4/30/87, and permit issuance and sampling inspections oc
all SIUs by 6/30/87. Control Authority includes two other per -utees: Suburb One, Permit No. US
00008 and Suburb Two, Permit No. US 00009 who must meet the schedule for inspections
12
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Discussion: The entry on QNCR for Hometown shows the name and permit number of the facility
The Control Authority also covers two other permittees Three reportable noncomphance
criteria were exceeded (see sections I and II of this guidance) The annual report was due
January 15, 1087, according lo the NPDES permit for Hometown The approved program
was the basis for the other reported violations The "reg subpara" identifies the section
of the existing QNCR which covers the violations The State has called the tity which
promised to submit the annual report After discussion with the city and its outlying
jurisdictions ,in administrative order was issued with a compliance schedule to resolve all
three violations Hometown is following an enforceable schedule that will lead to
compliance, so us compliance status is shown as "RP" (resolved pending) for all three
violations The. comments indicate the compliance deadlines
B) Example 2
Scenario: Little Burgs pretreatment program was approved January t. 1986 The facility has two
SU's one is a food processor and the other is a pharmaceutical manufacturer Little Burg
has had loads that have resulted in permit violations of BOD (March - June 1986) The State
Approval Authority issued an administrative order September 10, 1986 to establish a
st hi dult fnr issuing II permits The ROD v lot it ions were considered resolved for reporting
.is of fKtobtr 1 I'W)
K lislinc
I itite Burg WW1P. I iiile Burg. t'S 0008
ISSlW I HI KKi ACTION lOMJ'MAMf
M)N< OMI'IIVM I UVTI SUHPAKA (AM N'O, t>\TT | STATUS i
! I nliHi t IL tin t ti»»]M. (iit)( H) /
n; (Stat
jiass ihn'uuh \\arnmg letter
inti r ft u IK i (St ne/04] SH*,}
(C nterion I.)
CriterM H 0410H6 (tn)(B) AO#1 RP((mi87)
(State/093086)
Warning letter
(State/051W»)
Criteria f (UllSd (m)(Ii) same RP (011187)
Criteria I". 061086 (m)(B) same RP (011187)
COMMKMs
Slate has provided tnining to Little Burg and PRELIM to calculate local limits (10/86) City will issue
permits bv 4/15/87
13
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Discussion: Little Burg has a history of problems from industrial loadings The pretreatment violation
is a lack of enforcement against interference and pass-through The same violation _
occurred four months in a row The POTW also had a violation of its BOD limit whi
met the criteria for reporting on the QNCR In this case DMR data were critical flags
an imerference/pass-through problem. The solution is believed to be local limits and
permits for the SIUs The administrative order established a schedule which is betng
tracked The original BOD violations have been resolved because the STUs have reduced
their loads and are preparing to add treatment When the POTW has completed the
development of local limits and issued the permits, the instances of noncompliance will
be deleted from the QNCR The State will continue to monitor progress each quarter
through reports and/or inspections
V. COMPLIANCE EVALUATION
EPA or the approved State should use pretreatment compliance inspections, annual reports audits, and
DMRs to evaluate the compliance status of the permittee At a minimum, available data should be
reviewed ever) MX months to determine whether ihe POI\\ is m compliance llm review m iv occur in
conjunction with the conduct of an audit or inspection or the receipt ot a report Once the facility u»
shown on the QNCR, quarterly evaluations are needed to update the compliance status on each QNCR
Compliance with permit effluent limits, compliance schedules, and reporting can be tracked in PCS.
which is EPA's automated data system The dates for submission and receipt of periodic reports and
routine requirements should also be tracked in PCS WEN'DB data already require that receipt of an
annual report (or periodic report) and its due date must be entered into PC'S as .1 permit schedule
requirement This tracking would allow Regions and States to forecast when reports are expected and
detect reporting violations, similar to the process for tracking discharge monitoring reports and other
scheduled events.
The Pretreatment Permits and Enforcement Tracking System (PPETS), has been developed, as a pa
of PCS. to track the overall performance of POTWs with their pretreatment requirements and the
compliance rates of significant industrial users Users guides and training will be provided to Regions
and States; in the fall of 1987 A few examples of the data which PPETS will include for each POTW are
the number of significant users (SIUs). the number of required control mc'chamsms not issued, the
number of SIUs not inspected or sampled, the number of SIUs in significant noncompliance (SNC), and
the number of enforcement actions. Most of the data in PPETS will only be indicative of potential
violations. The apparent violation should be verified as a continuing problem before the instance of
noncompliance is reported on the QNCR The data elements in PCS and PPETS that may applv to
reportable noncompliance are summarized for each criterion in Table 2
Once the POTW has been reported on the QNCR it should continue to be reported each quarter until
the instance of noncompliance is reported as resolved Compliance with an enforcement order (both
judicial and administrative) should be tracked on the QNCR from the date the order is issued until it
is met in full. EPA and/or the approved State should verify the compliance status of the POTW each
quarter through periodic reports from the POTW, compliance inspections, audits, meetings, or requests
for compliance data and information
M
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Table 2
REPORTABLE \O\COMPLI\NCE CRITERU AM) RELATED PCS/PPETS
DATA ELEMENTS
Criterion
Criterion A
- Failure to Issue Control Mechanisms
Data Source
PPETS
Criterion 8
- Failure to Inspect SIUs
PPETS
Criterion C PPI.Tb
- Failure ut Fst ihhsh Self Monitoring
Data Element
o Number of SIUs without
required control
mechanisms10
o Control mechanism
deficiencies
o Number of SIUs not
inspected or sampled10
o SIUs m SNC hut not
inspected or sampled10
o SH s not inspected at
required frequency
o Inadequacy ol POIW
inspections
o MUs m SNC with self-
monitoring10
C rilenon I)
-- I ailurt to Implement St tndards
P( S
PPETS
o \ioI.itionSiirnmarv
o I filuent data10
o SIUsmSNC10
o Number of enforcement
actions10
o Amount of Penalties10
o Adopted local limits10
o kehnit.i! evaluation for
local limits10
10 Water Enforcement National Data Base (WENDBj daid elemenis for which djtj entrv is rcquirtd nut optional
IS
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Table 2
(Continued)
Criterion
Criterion D (Continued)
- Failure to Implement Standards
Data Source
PPETS
Criterion E
— Failure to Enforce
PCS
PPL IS
Criterion T
— Failure to Submit Annu.il Report
Criterion G
- Failure to Meet Compliance Schedules
PCS
PCS
Data Element
o Deficiencies in POTW
application of standards
o Date permit required
implementation10
o Number of significant
violators published in
the newspaper10
o % lol.ition summary
o Pffluent data1"
o Same .is Criterion D
o Pass Through/Interfer-
ence incidents
o Deficiencies in POTW
sampling
o IVhuuKKsin POIW
ipplic it ion o! standards
o rnforcemcnt respons
procedures used
o reporting schedule
o permit reporting10
o compliance schedule
events10
10 Water Enforcement National Data Base (WENDB) data Uiments fur »hnh dau cntrv is required, not optional
16
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VI. RESPONSE TO POTW NONCOMPLIANCE
The QNCR requires reporting of noncomphance, as well as the action taken by the approved State or
EPA Region to resolve the noncomphance EPA Regions and approved States should review and verify
all problems or violations related to POTW program implementation, regardless of whether they are
or will be reported on the QNCR Specific implementation requirements must be identified and
compliance should be systematically reviewed and evaluated In determining the appropriate response,
the Approval Authority should consider the nature of the violation, the length of time the POTW has
been approved .md the compliance history of the permittee
Given the fact that implementation of pretreatment program requirements is a relatively new experience
for many POTWs formal enforcement may not be initial!} appropriate The POTW may be unaware
of how to correct the violations that have occurred and may need training and guidance from the
Approval Authority The opportunity for a "second chance" is an important option for the Approval
Authority In all cases, the POTW should be advised" of its violations However, if the violation is the
first such problem and the POTW is willing to implement the approved program and needed corrective
action, then technical assistance may be appropriate to help the POTW personnel understand what is
expected and when
EPA recommends closely monitoring the progress of the POTW in issuing, reissuing, or ratifying its
control mechanisms If the POTW consistently fails to issue and maintain its control mechanisms in a
timely fashion that is issuance in accordance with the approved program or permit or the requirement
of .in enfontnu nt oriln within *><> davs after permit expiration the \ppro\al Authority should issue a
warning letter nr administrative order to the C ontrnl Authority and establish a schedule for issuing the
neitssirv control muh inisms .
*
Where a sthetfute is neftlid for corrective utwn, the Approv.il Authontv may wish to establish that
schedule in in cnioiecnunt order When a schedule extends fur 'HI days or longer, LPA recommends
that the Approv.il Authonu establish the schedule in an enforcement order A detailed schedule with
mtermtiintc miltMorus will lulp the POIAs .dloi.it? approprntc time and priority to the required
tasks wink In 'pun; tlu \pprov.il Authont\ assess the 1'OJ \V s progress I he Approval Authority may
list a Ins U tti i to oH mi mlormition and tinu isitmitcs truin the PO|\V to iU \elop the compliance
vhedult ( ompluiui with m entoreement order is tracked on the OV K until the f'OTW has returned
to full compliance with the M'DI S permit
Formal enforcement will be the appropriate initial response in a growing number of cases as POTWs
become more knowledgeable of their implementation responsibilities Where the POTW has
substantially failed to implement its approved program or demonstrates inadequate commitment to
corrective action on a timely basis, the Approval Authority should initiate formal enforcement action u
Formal enforcement may also be appropriate as an initial response where the POTW s failure to enforce
has contributed to interference, pass-through or significant water qualtrv impacts When a violation by
the PO1VV has Ken identified and the POIV* has tailed to inmate corrective action in the quarter
following ale'ril ihcal ion on the QNC R. the \ppro\al Authority should strongly consider formal
enforcement action
SI EPA Hcjiiqujnm n dot.loping criteria fur bringing formal enforcement actions and model pkjdings and complaints for
judicial damns against POTWs for failure to implement thetr pretreatmem programs
17
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VII. SUMMARY
The QNCR is an important tool to identify priority violations of permit conditions, to overview the
effectiveness of State and EPA compliance and enforcement activities, to provide a frame*ork to achie
a nationally consistent pretreatment program, and to compile national statistics on noncomphance fo ,,
the NPDES program The existing rule for noncompliance reporting requires EPA and the States to
report instances where POTWs have failed to adequately implement and enforce their approved
pretreatment program
Nearly 1500 POTWs are now approved Pretreatment will he the primary mechanism to control toxic
and hazardous pollutants which may enter the POTW or its sludge Therefore, it is vital that EPA and
the approved States routinely evaluate POTW compliance with the requirements of their approved
program and report POTWs that have failed to adequately implement their approved program
This Guidance is intended to assist Regions and approved States evaluate and report POTW
noncomphance with pretreatment requirements The Guidance explains the criteria that should he used
to evaluate principal activities and functions necessary to implement the program In some cases.
approved Status and Regions may need to modify the program and, or NPDLS permit because the
existing requirements are inadequate or because conditions have changed In general, those POTWs
that meet the definition of reportable noncomphance should be priorities for resolving the inadequacies
in approved programs or permits
EPA plans to incorporate specific criteria mta the N'PDFS Regulations for noncomphance reporting
of POTWs which fail to adequately implement their pretre.itnunt prognms The regulation will be
developed after Regions and approved Si ites h ive h id the opportunity to ust this Guidance for at least
12 months to assess the effectiveness of the criteria in identifying serious noncomphance Comments
on the use of this guidance and the reporting of POTW noncomphance required under the Strategt
Planning and Management System in FY 198S will be carefully evaluated for future regulatory an
program reporting requirements
18
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II.C.12
"PCS PC PERSONAL ASSISTANCE LINK USERS GUIDE", updated December 21, 1988.
Table of Contents only.
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PCS PC Personal Assistance Link (PAL) Users Guide
Document Number PCS-PA88-1.01
December 21. 1983
PCS USER SUPPORT
202/475-8529
U.S. EPA (EN-338)
401 M. St. SH
Washington. DC 20460
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PBBFACB
The Permit Compliance System (PCS) is a database management system
that supports the NPOES regulations. The system ts available to
registered users in State and EPA Regions through the National
Computer Center in North Carolina.
PCS PERSONAL COMPUTER (PC) PERSONAL ASSISTANCE LINK (PAL) is a
user friendly PC software package which was developed specifically
to allow managers to generate reports from PCS quickly and easily
using only a few keystrokes on their microcomputers. In addition
to the PCS PC-PAL Manual, the following manuals are available on
the PCS system.
PCS Data Entry. Editi and Update Manual - General Overview of
PCS and detailed information on entering data into PCS. In-
cludes documentation on PCS-ADE and PC-ENTRY.
Generalized Retrieval Manual -Provides complete information
about how to run all flexible format and fixed format reports
available in PCS. This includes preprinting DMRs and running
the QNCR. - .
Inquiry User's Guide - Describes in detail the interactive
retrieval software that provides interactive access to the PCS
database,
Data Element Dictionary - Gives a detailed description of each
type of data available in PCS* field by field.
PCS Codes and Descriptions - Provides a complete list of all
of the code value tables used in PCS. Referenced by the PCS
Data Element Dictionary
-------
TABLE OF CONTENTS
1.0 INTRODUCTION TO PCS PC-PAL 1-1
2.0 OVERVIEW OF PCS 2-1
3.0 USING PAL 3-1
3.1 Initiating a PAL Session 3-1
3.2 Accessing PAL 3-2
3.2.1 Using the "HELP" option 3-4
3.2.2 Using the "REPORTS" option 3-5
3.2.3 Using the "END" Option 3-9
*
4.0 Significant Noncompllance Reports 4-1
4.1 Current QNCR Facilities Report 4-1
4.2 Effluent Report 4-9
4.3 Compliance Schedule Report 4-17
4.4 DMR Non-Receipt Report 4-24
5.0 INSPECTION REPORTS 5-1
5.1 Inspection Scheduling Report 5-1
5.2 Last Inspection Completion Report 5-15
6.0 PRETREATMENT REPORTS 6-1
6.1 Inspection/Audit Scheduling Report . . 6-1
6.2 Last Inspection/Audit Completion Report . 6-15
6.3 Annual Report Scheduling List 6-29
6.4 Annual Report Submission List 6-42
7.0 ENFORCEMENT ACTION REPORTS 7-1
7.1 Formal Enforcement Actions Report 7-1
7.2 Closed Formal Enforcement Actions Report 7-16
8.0 EXPIRED PERMITS REPORTS 8-1
8.1 All Expired Permits Report 8-1
8.2 Applications Non-Receipt Report 8-15
A.O APPENDICIES Append-1
Appendix A. PCS USER COMMENTS A-l
Table of Contents
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III.B.11
"Guidance Regarding Regional and headquarters Coordination on Proposed and
Final Administrative Penalty Orders on Consent under New Enforcement
Authorities of the Water Quality Act of distributed August 28, 1987.
-------
-------
j"
Guidance Regarding Regional and rieaoquarters Coordination on
Proposed and Final Administrative Penalty Orders on Consent
Jnder New Enforcement A-tnor%tles of tie water Cuali-y Ac~~
of 1987.
I. Purpose
The purpose of t.-.is -3-^a"ce .3 to exola.n ;-e ^n
rec-ire:: ce- -»**". -ieasc-arte-s l-i) ar: i-e" Res.ois for asr.i-.st
te-alty ac*.o"5 ta
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8. WQA Class I and II S-404 Penalties
Each Regional office shall submit to Suzanne Schwar
Chief, Policy and Regulations Branch, Office of Wetlands
Protection (CWp), copies of the following prior to issuance:
t-.ree r.ass I a--j t~e first tKree riasi II
cc"»&»"ei rorrpiai-cs anJ penalt/ 3-iers rfitn accompanying
letters proposing tK.e assessrent .if penalties prior to
ce -nder 5314 :f t~e *CA.
2. The fi-st r"ir»«» "lass I S--J first t-.-ee 'lass II
final penalt/ ?-^-s :n conse-.t pri;- tD iss
under S314 of t-.e *wA.
C. I-npIenientat ion
The Office of *ater Enfo-ce-nent and Permits or the Office
of **tlari(Js Protect i on i JS approo^i ate, «*ill distribute cop.es
of tr.e orders tJ tw.e Office of Enf o'-ce'nent and Compliance
Monitoring. i?^ ^egion-s -IL.S": -j-tdin cTT^.e^ts and concurrence
from OcCM - ^a-.^r, and iViEP ->- 3»«iP, as appropriate, on initial
proposed penalt/ orders/ccmplants and final orders on consent
oefore •si-jnina or issuing tlese -iocu-nents to the respondent or
to any other party outside of EPA. «^ECM and OW offices will
provide one joint response to the Regions, to -nninuze cjo-dina
burdens on the Regions. ""
In order to expedite Headqua"te"s review of proposed %
and final orders, fie Regions -nus . i-:lude an action nemo
or a fact sneet explaining the fa :aal basis, rationale,
and significant issues associated «ntn each proposed and
final order. This material should show the basis for using
the procedures chosen, and show application of penalty
assessment criteria* We hope that in many cases the Regions
will be able to use the same action memo already developed
for their own internal use. The package also srould designate
a contact person in the Region with whom Headquarters should
communicate on the package.
The Region nay, at its discretion, submit in the package
any other relevant materials which may be of assistance to
Headquarters during the review process.
OWEP, OWP, and OECM review for purposes of deciding on
concurrence will focus on whether the submitted documents
are consistent with national law and pol cy in the area of
WQA programs, WQA enforcement and enforcement generally.
The review focus will be on the legal and technical soundness
of the administrative documents submitted by the Region.
The review typically will not foc-.s on whether an admnistrat
-------
-3-
penalty action is the best alternative enforcement response,
although particular attention will be given to this issue on
administrative cases that raise precedential national issues.
The Headquarters concurrence memorandum may require document
changes needed to protect the Agency's enforcement position, or
nay •ne'-ely suggest changes preferred t>/ Headquarters reviewers
fo~ the Region to consider implementing.
OWEP, OWP, and OECM will respond jointly in one written
communication to the Regions no later than ten working days
from receipt of the package unless there is good cause for a
delayed decision. Headqua"ters may need to delay its response
if, for example/ additional information from the Region is
essential before concurrence may be given. If good cause for
delay exists, the appropriate OW Branch Chief must immediately
notify the affected Region of the delay, and provide the reasons
for the delay.
Upon resolution of the matter causing delay, OWEP,
OWP, and OECM ag-ee to respond to the Region as quickly as
possible, but no longer than ten working days from receipt of
all information requested.
If Headquarters does not respond to the Region within
the appropriate tme frame, the Region must notify OWEP or
OWP, as appropriate, that a response has not been received.
If the designated representatives for OWEP o*" OWP do not
respond to the Region within one day, the Region may assume
that OWEP or OWP, and OECM have no comment on the proposed
or final order and concur in its issuance.
Where possible, the Regions are encouraged to forward
diverse cases, involving a variety of WQA violations, to
Headquarters for concurrence.
IV. Other Procedures to Facilitate National Managementof the
Administrative penalty Program
A. Submission of Hard Copy of Penalty Orders
Currently, Regions are asked to submit copies of all
administrative orders ($309) issued to OWEP. Through
this guidance, we are also asking the Regions to submit
hard copies of proposed and final penalty orders, either
litigated or on consent, to OWEP or OWP as appropriate
within 30 days of issuance of the order. These hard
copies will be used as one mechanism for evaluating the
effectiveness of implementation of administrative penalty
authority and assessing national consistency in the use of
the authority. Submission of hard copy should in no way
delay or impede a Region's ability to use the administrative
penalty authority.
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3. A -I oata ted Trac<:r.s of ?e-alty :rrer Issuance
Headquarters will trac< t-,e : ssuance of admnstrative
penalty orders for other tnan Section 404 ttroucn tne
permit Compliance S/sten (PCS), an a-to.uatei -nanace-nent
. -.f or-atic". s/ste* for -.-atx.-: c**-.t, j3-= . . a-.;*, 3-5
•j- f "'*•?•- .
-" -
ia-a .
a'» carra'-.tl/ req-.--?-3 ro --3C< a.l *-f D-'e-e-t ac-ons
55-e-: -o -".a;c- cerT.n-ees a-.: -.-.3' ?"- 9;-533 *--.;. pal
-er*. -tees, 'err^-.s a-2 S^a'es - 1. 3-? 7..e". :*.••."•»-
:„ :a-:e . -. --e -ea» :-"-:» :- ••-* spec.r.c :aia .D oe
e-.-.e--?: fir a2T.-..sf a-.. -e =e-a.tr
uni of Administrative Opinions
ua'-'ers w.ll i».el3? a :o^pe-:.-T o: iec.s.ons
ss-ed zs Mt -.s-'at-.e Law j^i^es iA-J» as well as
an/ ^ec.SwOTS "a-. lei ic-". o/ Co- "is on appeal. 7*. 4s
rofcenr -T of ie: s.c-s w..l -e p'-^.'.ies -o ^e;.ois on
a -e^-la- sas.s "j ass. 3" .~ p'»car.-.3 cases "o oe ".
cy siLJs.
D. Circulation of Notewort".'/ Osin.o"S ' :r^ers
In aiSit.o-. -3 i-etara-.o- :: a :o-..--:. „-, -eai^-i'-er
-.*! Jistr.o-te copk*s 3f -,o-'»-ort-/ A-J :ej.okons as
well as copies of final orders w-.,c- are par-.irjlarl/
-ell Jo".e or .nnovat^/e, ".o a., ^eg.o'-.s. T-.ese w.ll oe
distno-ted periodically, as fey oeco^e ava^.aole to
•ieadczuarters.
E. Coordination on Precedential Issues
From time to time. Regions will identify cases where tne
issues have national implications or are precedential
in nature. In sucn circumstances, tne Region will oe
responsible for notifying ana wor
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>
?• Headquarters Oversicr.t of Administrative Penalty :mDlementat*o-
Headquarters -fill exercise oversight of Regional use of
administrative penal:/ authority primarily tnrougn program
reviews or ajaits (e.g., ..ntegrated ..nto tie annual* .tua-year
e/aljat ..on), as ocposec -3 case-oy-case, -eal-t-me re.-ew.
7-
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III.B.12,
"Use of Administrative Penalty orders (APO'S) in FY 89", dated March 13,
1990. This document is reproduced at VII.IS. below.
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