VLB-12,
 V
"EXAMPLE PERMIT LANGUAGE REQUIRING POTWS TO  IMPLEMENT PRETREATMENT
PROGRAMS11, dated  February 22, ;1985.
                                        Information Resources Center
                                        US EPA (3404)
                                        401 M Street, SW
                                        Washington, DC 20460

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    EXAMPLES OF PERMIT LANGUAGE
     REQUIRING POTWs TO  IMPLEMENT
       PRETREATMENT PROGRAMS .  ••
           February 22, 1985
            Prepared  for:

U.S. Environmental Procection Agency
          Pamirs Division
         401 M Street, S.W.
      Washington, D.C.   20460
            Prepared by:

           JRB Associates
  A Company  of  Science  Applications
      International  Corporation
         8^00 Vestpark  Drive
      McLean, -Virginia   22102
     EPA  Contract  No.  68-01-7043
   JRB  Project  No.  2-834-07-167-00

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     REGION II




tState of Nev York)

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                                                            Part .1
                                                            Page _^ of
                                                            Facility So.:
                         msATigyr PROGRAM IMPLEMENTATION
                                  REQUIP.EMEXTS
A.   The  permittee  shall  implement  the  Industrial  Pretreatment  Progran  in
     accordance with the  legal  authorities,  policies,procedures,, and financial
     provisions 'described in  the "permittee's'  pretreatment program  submission
     entitled,              ..	•
     dated 	
,  approved by EPA on
and the General
     Pretreataent  Regulations  (40  CFR  403).   At  a  minimum,  the  following
     pretreataent   implementation   activities  shall   be   undertaken   by  the
     permittee:

     (1)  Enforce  categorical pretreatment  standards  proaulgated  pursuant _ to
          Section 307(b) and  (c) of  the Act,  prohibitive discharge  standards as
          set forth in  40  CFR 403.5. and local limitation  specified  in Section
          	•' •  of  the (*)  (**) whichever  are  more stringent or  apply at
          the  time  of   issuance  or modification of  an (***).  Locally derived
          limitations shall be defined  as pretreataent standards under Section
          307 (d) of the Act and  shall not be limited  to categorical  industrial
          facilities.
     » *
     (2)  Issue (***) to all  significant  industrial  users.   (***)  shall contain
          limitations,   sampling protocols,  compliance  schedule if  appropriate,
          reporting requirements, and appropriate standard  conditions.

     (3)  Maintain  and  update,  as necessary, records  identifying the nature,
          character,  and  volume  of   pollutants  contributed  by   significant
          industrial users.  Records shall be maintained in accordance with Part
          II. 10.3.a.

     (4)  Carry  out inspections1,  surveillance,  and monitoring  activities  on
          significant industrial users  to determine compliance with  applicable
          pretreatment  standards.   Records  shall be  maintained in  accordance
          with Part II.  10.3.a.

     (5)  Enforce  and   obtain  remedies  for  non-compliance  by any  significant
          industrial  users    with   applicable   pretreatment   standards   and
          requirements.
         *   City, Village, County, Town, etc.
        **   Code, Local Law, Ordinance, etc.    '  .  •
       ***   Industrial discharge permit, Agreement, Contract, etc.

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                                                       Part I
                                                       Page 	of
                                                       Facility No.:]
Pursuant to 40 C7R 403.5(e), whenever, on the basis of information provided
to SYSDEC  or  the  Water Division Director, .U.S.  Environmental  Protection
Agency, it  has been determined that  any source contributes  pollutants  in
the  permittee's treatment  works  in  violation  of Pretreatment  Standards
Existing   Sources,  New   Source   Pretreatment   Standards   or   National
Pretreataent Standards: prohibited  discharges,  subsections  (b),  (c)  or (d)
of Section 307 of  the  Clean Water Act,  respectively,  notification shall be
provided  to  the   permittee.   Failure  by  the  pernittee  to  commence  an
appropriate investigation and subsequent enforcement  action within 30 days
of this notification  may result in appropriate, enforcement  action against
the source and pernittee.

Sampling

Note:  Effluent limitations and sampling and analyses requirements for PJDTW
influent,  effluent  and sludge will be  identified  in Tables 1, 2  and 3 of
Part  I of  the facility's  SPDES Permit.    These will be  POTV  specffic
and  will  be  inserted  at   the  same  time  as  implementation  language,  if
available.   If not,   a  reopener  clause would  be  utilized  (see  Speci
Condition 1).

Reporting

All pretreatment reporting requirements shall be submitted to the following
offices:

     Department of Environmental Conservation
     Regional Water Engineer

     Department of Environmental Conservation
     Water Division
     SO Wolf Road
     Albany, NY  12233-0001

    'Dr. Richard Baker, Chief
     Permits Administration Branch
     Planning & Management Division
     USEPA Region  II
     26 Federal Plara
     New York, NY  10278

            (applicable only if checked)
     County. Health Department

The  permittee shall  notify NYSDEC  60  days  prior  to  any major  propos
change  in   sludge  disposal  method.    KYSDEC   may   require   addition
pretreatment  measures  or   controls  to  prevent or  abate an  interference
incident relating  to sludge use or disposal.

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_
                                                                       Part I
                                                                       Page 	of 	
                                                                       Facility No.:	

           F.'   The permittee shall provide to NYSDEC a (***) report that briefly
                describes the permittee's program activities over the previous (****)
                months.  The initial report shall cover the period from 	 to
                	.  The NYSDEC may modify, without formal notice, this reporting
                requirement to require less frequent reporting if it is determined that the
                data  in •the report  does not  substantially change  from period  to period
                (*****).  This report  shall  be submitted to the above  addresses  vithin 28
                days of the end of the reporting period and shall include:

                (i)  An updated industrial survey, as appropriate.
                                                                .. •
                (ii) Results of vastevater sampling  at  the  treatment plant as specified in
                     Part I, Tables 1, 2, and 3.

                (iii)Status of Frogrsa implementation to include:

                     (a)  Any  substantial modifications  to  the pretreatment program j.s
                          originally approved  by USE? A to  include  but not be limited to;
                          local limitations,  special agreeoents  and staffing  and funding
                          updates.

                     (b)  Any interference,  upset  or permit violations  experienced at the
                          POTW directly attributable to industrial users.

                     (c)  Listing of significant industrial users issued (**).

                     (d)  Listing  of   significant   industrial   users   inspected  and/or
                          monitored during  the  previous  reporting  period and summary  of
                          results.

                     (e)  Listing of  significant industrial users  planned  for  inspection
                          and/or  monitoring  for  the  next reporting  period along  with
                          inspection frequencies.

                     (f)  Listing of  significant industrial users notified  of promulgated
                          pretreatment  standards,   local   standards   and  any  applicable
                          requirements under Section 405 of the Act and Subtitle C and D of
                          the Resource Conservation and Recovery Act, as required in 40 CFR
                          Part 403.8(f)(2)(iii).

                     (g)  Listing of.significant industrial users notified  of promulgated
                          pretreatment standards or  applicable local standards who  are  on
                          compliance  schedules.   The  listing  should  include  for  each
                          facility the final date of compliance.


                     **   Industrial discharge permits,  Agreements,  Contracts, etc.
                    ***   Specify frequency (semi-annual or annual)
                   ****   Six or 1.2 nonths
                  *****   The  permittee   shall  also  report on the  pretreatment  program
                          activities of all contributing jurisdictions

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                                                            Part I
                                                            Page 	of 	
                                                            Facility No.:	

          (h)  Planned changes in the implementation program.

     (iv)  Status of enforcement activities to include:

          (a)  Listing of  categorical industrial  users,  who  failed to  subzit
               baseline reports  or  any  other reports  as  specified  in 40  C?R
               403.12(d)  and  in Chapter  _______  Section 	 of the  (*)
               (**).

          (b)  Listing significant Industrial users nor complying with federal or
               local pretreatment standards as of the final compliance date.

          (c)  Summary  of  enforcement  activities  taken  or  planned  against
               non-complying significant  industrial users.  The permittee shall
               provide public notice of significant violators  as specified in 40
               CFR Part 403.8(f)(2)(ii).
Special Conditions (case-by-case)

     The following types of requirements should be  inserted  into a POTW's
     persit  when  special  circumstances  are  encountered,   such  as
     nqncozpliance .or significant or unusual industrial  discharges,  which could
     cause interference, pass through,  or sludge contamination.

     (1)  This  permit  shall  be modified  to  incorporate appropriate  effluent
          limits and sampling and analysis requirements  for  priority pollutants
          (substances of concern) based upon available sampling data.

     (2)  The permittee, shall monitor  the  following major industrial users for
          the pollutants of  concern on a  [frequency,  e.g.,  monthly, quarterly]
          basis and forward, a copy of the results to NYSDEC.
          List Industrial Users
          a.
          b.
          c.
List Pollutants of Concern
(Detection limits)

i.
ii.
iii.
     *   City, Village, County, Town, etc.
    **   Code, Local Lav, Ordinance, etc.

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                                                      Part  I
                                                      Page	of 	
                                                      Facility No.:	
(3)  The permittee shall  evaluate  the  inpact and, if necessary,  establish
     and enforce regulations to control  the  introduction of septage waste
     frca  commercial   septage  haulers  into   the   POTW.   These  local
     regulations shall be subject  to  approval by  KYSDEC.

(4)  The  permittee  shall  provide  information   as   required   by  40  CFR
     403.12(1)  and (J) regarding removal  allowance.

(5)  Upon  request  of   NYSDEC  considering   information  -that   receiving
     waterbody  use nay  be  iapaired,  the  pernittee shall evaluate  priority
     pollutant   discharge(es)  to  receiving   waters  through  the  following
     combined sewer overflows (CSO's)	.  If KYSDEC determines that  such
     discharge(s)  are significant  and receiving waterbody use is  impaired,
     the  permittee  shall  investigate   the   characteristics,   nature  and
     frequency  of  such discharge,  and effects, and present  a plan  of action
     to reduce  the discharge of  priority  pollutants.

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                                                              O ' "3 —*  *f
                                                              rrvfv A  i,
                                                              VA006C593
                                                              Page  3  of  5
                                    PAST I
C.  Special Condition - Chlorine

    This perr.it  shall be modified or alternatively  revoked and reissued
    to cor.ply vith  or reflect  the evaluations  and/or  recc~ner.dacions of
    the disinfection  task  force 'and any  resulting effluent standard or
    limitation.

D.  Precreatr.ent Program

    I?A by  letter of  November  10,  19B3 approved the City of Danville's
    Pretreatr.er.t Prosran:.   3y  this  approval,  all provisions and regula-
    tions  contained and  referenced  in  the Program are an enforceable
    part  of  this N?D£S ?.err.it.
     Toxic  Montiorir.g Prcgran

     1.   The Ci:y of Danville shall subr.it for approval to the State Water
         Control Board vichin 180 days of the effective dace of  Che perr.it
         a  Toxics Monitsring Program.

     2.   The State Water Control Board shall review the subtr.ittal  of the
         Tcxics Monitcring Program within 90 days after receipt  of  the  Prograr..

     3.   The City of Danville shall ir.pler.ent the Toxics Monitoring Frccrar.
         wichin 90 days a£ter notification of the State '..'acer  Control  Board
         approval and the provisions contained within  the  Program  shall becor.e
         an enforceable part of this NPDES Permit.

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                                           REGION IV

                                      .CState of Georgia)
                                   (State  of North Carolina)
^^ 
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                                                                        *,'
152?

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State of Georgia

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STATE OF GEORGIA                                     PART  III
DEPARTMENT OF NATURAL RESOURCES
ENVIRONMENTAL PROTECTION DIVISION               • Page 12 of   13
                                                        Permit No.   Gn.0024449

    *
A.  "APPROVED INDUSTRIAL PRETREATMENT PROGRAM FOR PUBLICLY •
    OWNED TREATMENT WORKS  (POTW)

    1.   The terms and conditions of the permittee's approved pretreatment
         program,.approved by -the Environmental Protection Division  (EPD)
         on April S, 1SS3                          ,  (as provided for in
         Chapter jyio~o-.unfeo) oi.tne rtuies anc regulations icr Water
         Quality Control), shall be enforceable through this permit.

    2.   Based on the information regarding industrial inputs reported by the
         permittee pursuant to Part  III paragraph B(2), the permittee  will be
         notified by EPD of the availability of industrial effluent guidelines
         on which to calculate "allowable inputs of incompatible pollutants
         based en best practicable.technology for each industry group. 'Copies
         of guidelines will be provided as appropriate. Not later than  120 cays
         following receipt of this information, the permittee shall submit to
         the EPD'cclcjJaticns reflecting allowable inputs from each major
         contributing industry. Tne permittee shall also require  all such major
         contributing-industries to implement necessary pretreatment require-
         ments, providing EPD with notification of specific actions taken in
         this regard.  At that time,  the-permit may be amended  to reflect the
         municipal facility's effluent'limitations for incompatible pollutants.

     I.   Starting on  asril 15. 19S4    .               the permittee shall
         submit annuauy to c,rt) a report to induce me iollowing information:

         a.   A narrative summary  of actions taken by the permittee  to insure
              that all major contributing industries comply witn  the requirements
              of the approved pretreatment program. .

         b.  -A list of major contributing industries using the treatment  works,
              divided into SIC categories, which have been issued permits, orders,
              contracts, or other enforceable documents,  and a status, of compli-
              ance for each Industrial User.

          c   The name and address of each Industrial User that has received a
              conditionally or provisionally revised discharge limit.

      b.   The permittee to which reports are submitted by an Industrial User
         •shall retain such reports for a minimum of 3 years and shall  make
          such reports available for inspection and copying by the EPD.  This
          period of retention shall be extended during the  course of any un-
          resolved litigation regarding the discharge of pollutants by the
          Industrial User or  the operation of the approved pretreatrnent program
          cr wnen requested by tr-.g  Director.  .  .         .

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STATE OF GEORGIA
DEPARTMENT OF NATURAL RESOURCES
ENVIRONMENTAL PROTECTION DIVISION
                                                     PART HI

                                                     Page 13 of
                                                     Permit No.
13
B.   INDUSTRIAL PRETREATMENT STANDARDS
     1.-
     me permittee shall require aJ! industrial dischargers into the permitted
    system to meet State and Federal Pretreatrnent Regulations promulgate''
    in response to Section 307(b) o: the Federal Act.  Other infer mat; en "may"
    -- neeces regarding new industrial discharges and will be requested from
    the permittee after E?D has received notice of the new inc'ustrisj discr.ar*
                                                                           •arse.
         A major contributing industry is one that: (1) has a flow of 50,000 gallons
         or mere per average work day; (2) has a flow greater Than five percent of
         the flow carried by the municipal system receiving the waste;  (3) has in
         its waste a toxic pollutant in toxic amounts g.s defined in standards issued
         under Section 307(a) of the Federal Act; or (>) has significant  impact,
         either singly or in combination with other contributing industries, on the
         treatment works-or the quality of its effluent, or interferes with disposal
         of its sewage sludge.

         Any char.ge in the definition  of a major contributing industry as a result
         of promulgations in response  to Section 307 of the reo'erai Act shall
         become a part of this permit.
C.
REQUIREMENTS FOR EFFLUENT LIMITATIONS ON POLLUTANTS-ATT
TO INDUSTRIAL USERS
   U5UTA5LE
     I.   Effluent limitations for the permittee's discharge are listed in Part 1 of
         this permit.  Other pollutants attributable to'inputs from major contributing
         industries using the municipal system may also be present in the permittee's
         discharge. At such lime as sufficient information becomes available to establish
         limitations for such pollutants, this permit may be revised to specify effluent
         limitations for any or all of such other pollutants in accordance with best practi-
         cable technology or water quality standards.  Once the specific nature of indus-
         trial contributions has been identified, data collection and reporting requirements
         may be levied for other parameters in addition to those specified in Part I of this
         permit.  .

     2.   With regard to the effluent requirements listed in Part I of this perrni:, it may
         be necessary for the permittee to supplement the requirements of the State
         and Federal Pretreatment Regulations to ensure compliance by the permittee
       .  with all applicable effluent limi:ations. Such actions by the permittee may be
         necessary regarding some or all of the major contributing industries discharging
         to the municipal system.

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State of North Carolina

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                                                        Part ;::

                                                        (Modified)
rrecrearsent
The Permittee  has-sub-i:tec  documentation .0 the nivisicr.  D:  Er.vir;--
ner.tal Management  which  complies  -'ich rhe required ac;ivi:ies  cor.cair.ec
ir. the Scats and  Federal ?retrear3ent Regulacicns 15 SCAC  2X  .0900  and
-0 CFR 403  respectively.   The  approved Local Precrearner.:  Prcgraz; and
Cor.ditior.s  of  Approval are hereby incorporated as ?art of  this ?err.i:
by reference.   The cr.-coing  industrial cor.itsrir.g activities  zi  the
?OT;i"s ?retreatment  proerara  shall be governed by prerreatrier.t  regulati:
and the Conditions of Final  Approval.

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n
              the  Publicly  Owned  Treatment Works  or  POT.-.')  to  aid  the  State  in  the sar.a*
              tnent of the Local Pretrsatment  Program established  pursuant  to the

              mentioned  regulations  and  statutory authority.

                         Section II.   Responsibilities  of POTV and DEM
              The  pretreatment program will be  administered at  the local level with  stats

              participation as described herein,  after  the POT.'.' has taker,  certain  enabling

              actions.   These action consist  of,  but are not  lir.iteG to, amending  its

              sever use  ordinance to meet minimum requirements  of state and federal  pretrea!

              r.ent regulations, submitting and  industrial user-(I'J) survey in  s.r. acceptable

              format, and reaching agreement  on a pretreamer.t  implementation  schedule in

              the  PQT.C's. NTDES ?enai&..-.
              Tae  ?OTK will have  assumed responsibility  for performing the following .activi-

              ties:
              a.  Conduct an Industrial User  Survey  including identification of indusMi
                                                                   ™m
                                                                    f — a 3T'. . .,
    users and the character -and.volune oi pollutants contributed to the ruT.
    by the industrial users.
b.  Submit an evaluation of legal authorities to be used by the per-ittae to
    apply and enforce, the requirements of sections 307(b) and 402(b) (s)  of
    the Clean Water Act, including those requirements outlined in iO CFS i03.^
    (f) (1) and .0905.
c.  Subnit a detenaination of technical information (including specific requi
    tnents of 60 CTR 403.8 and 0905 and .0906.)
d.  Submit specific VOW effluent limitations for prohibited pollutants contr
    buted to the POTV by industrial users.
e.  Subnit design of a monitoring prograa which will implement the requirs-sn
    of the State and Federal regulations.
f.  Subr.it list of monitoring equipment required by the PG7V to implement tr.i
    pretreatnent proerar. and a aescription of municipal facilities tr;,
    struciec far monirorir.s or ar.alvsis cf industrial wastes.

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   g.  Submit an evaluation of financial programs and revenue sources as

       required by 40 C7R 403.8(5)  (3), and  .0905  (f) (3) which will be
  f              4
       employed  to  implement  the  pretreatmer.t program.

   h.  Submit  a  request  for  pretreatmer.t  program approval  (and  removal  cre-

       dit approval,  if  desired)  as required by 40 CFR  403.S' and .0509.

3.  The D£M will review removal credit request and will  make an appropriate


    determination.

4.  Fundamentally different factors variance request by a given category of

    industry -ay be commented upon by the POTW.  DEM will make a preliminary

    finding and deny the request  if  fundamentally  different  factors do not

    exist.  If  such  factors  are  found  to  exist,  DEM will  forward  co I?A  a

    recommendation  that  the  request be  approved.


                    Section III.    Permit  Review and Issuance


 1,   Applications by an II' for a P07V.' Indirect Discharger (PID) Permit will
                                                  *

     consist of an engineering report conforming to a prescribed format.  This

     application should be subnitted to -the  POT*  for review  and  comment.

 2.  Pretreatment permits will be  issued  by  the  POTW staff.   A draft  of  each

     proposed pemit will be  provided  to  the IU with a  30-day comment  perioc.

  3.6 The  POTW will  issue PID Permits to primary industries  (as defined by 40

     CFS.  403)  and  significant industrial  users.  (For  the purpose of this

      agreement,  the term "significant industrial user"  shall aean an IU which

      discharges greater than 0.025 MGD to a POTW,-or greater than 5 percent

      of  the hydraulic or organic design capacity of the receiving POT**1, or an

      IU  havir.e a priority pollutant in its  discharge.)

  4.  jecermir.iticn of I'J's prazreatmer.s  standard  subcategory and•?ID. Permit

             (if national pretreatmer.t  standards are unavailable). shall  tfe
• !*rr*i» c s

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    cade by the POTW with  concurrence  by  DEM.   Minimus acceptable IU pre-




   ;treatment  standards  will be those  promulgated  by  EPA,  and adopted by the




    E"C, although ordinance requirements  may  supersede national standards if




    core restrictive for purposes of protecting Water Quality.




5,   Prohibitive pretreatment determinations will be made in accordance with




    the POTW ordinance.   The POTW ordinance will be required to nseet the




    minimum criteria expressed in iO CFR  403.5(b).



6'.   Permits will be issued under POTW  procedures and  will require renewal



    at established intervals except that  permits may  be modified or revised




    upon the adoption of new standards or,  at such tirse as IU process changes




    become a factor.






                      Section IV.   Compliance Assurance





i.   All permitted lU's shall be required  to submit self-nonitorir.g data at



    monthly intervals to the POTW (unless otherwise instructed).  These



    monthly reports will be.submitted on standardized forms and due at reason-




  .  able reporting intervals, established by the POTW.



2.   The POTW will maintain a compliance evaluation system for permitted  II"s




    with overview by DEM.  Copies of violation notices concerr.ing compliance




    evaluation by the POTW will be provided to DEM.



3.   Primary and significant industrial users will receive at  least one compliance



    evaluation inspection and one compliance sampling inspection by  this  POTW each



    fiscal year.  The DEM will overview this activity.  All  compliance inspection



  • by  the POTW will be maintained as a written report  for accountability purposes,





    All ccr.nli.snce recorcs  shall be maintained .for-a-minimum of  three. (3) year

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t
                                         Section V.  Enforcement
                                                                                    i
            1.  The ?OT%' must play the lead role in enforcement.  Enforcement nay be a
                joint effort vitn DEM overview.  The P07W shall keep  the DEM  inforr.ec
                concerning all enforcement actions initiated.
            2.  The DEM  has  the  authority  to  overview  and if  necessary to  enforce  against
                non-compliance by  industrial  users when  the POTw  has failed to act or  has
                 acted to seek relief but has  sought  a  penalty which the director fir.cs to

                 be insufficient.
             3.  The enforcement of POTV pretreatment programs by DEM  is conducted through

                 the POTW's NPDES permit.
                         Section VI.  Reporting and Transaittal of Information

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KK A
If U

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                                                REGION V
                                           (State of Indiana)
                                          (State of Wisconsin)
                                        (Region V Model Language)
_

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State of Indiana

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                                                                              EXA29LE 2
*
                                                   Permit No. IN 0025755


                            INDIANA STREAM  POLLUTION CONTROL  BOARD

                         AMENDED AUTHORIZATION  TO DISCHARGE UNDER TKE

                        NATIONAL POLLUTANT  DISCHARGE ELIMINATION SYSTEM
                      In compliance with the provisions of the Federal Water Pollution
            Control Act, as amended by PL 92-500 and PL 95-217, (33 U.S.C.  1251 et seq.;
            the "ACT"), and Public Law 100, Acts of 1972,  as amended (1C 13-7 et seq.;
            the "Environmental Management Act"), the National Pollutant Discharge
            Elimination System (NPDES) discharge Permit No, IN 0025755, issued September 1»
            1934,  to  the City of Goshen, located at Goshen, Indiana, is hereby amended
            by the revision of pages 8 and 9 of 11, and the deletion of page 10 by the
            addition  of pages 2a,  8, and 9 of 11.  The additional pages establish  -
             conditions  for  the operation of a local pretreatment program by the permittee.

                      All  terns  and  conditions  of the existing permit  not modified by
             this  document  will remain  in effect.  Further,  any existing term or condition
            which this  modification  will change will remain in effect  until any legal
             restraint to  the  imposition of  this modification  has been  resolved.

                       This amendment shall  become  effective on the  date of  the signature
             of the Technical  Secretary.
                       This amendment shall expire  at  midnight,  August 31,  1989
                       Signed this
day of
                                                                                1984,
             for the Indiana Stream Pollution Control Board.
                                                Technical Secretary
                                                    PERMIT SECTION
                                                    EPA, R5GIC.V V

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*

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                               PART  III

                        Requirement  to Operate
                        a Pretreatment Program
                                                      Permit No. IN 002575S
                                                      Page 8a of It
                                                      Date Revised:
          The permittee,  hereinafter referred  to  as  the "Control Authority,"
is required to operate an industrial pretreatraent program as described in
the program proposal approved by the Indiana Stream  Pollution Control Board.
To ensure the program is  operated as approved,, .the following conditions and
reporting requirements are hereby established;

     The Control Authority (CA)  shall:

     1.   Submit a schedule for  implementation of its program within six
          (6) weeks after the issuance  of this modification and report-its
          progress in implementing the  pretreatment  program during each  .
          calendar month by the  2Sth day of the following month to the
          attention of the Pretreatment Group, Division of Water Pollution
          Control, Indiana State Board  of Health. This reporting requirement
          may be terminated by written  notification  from the Indiana Stream
          Pollution Control Board without public notice.

     2.   Issue discharge permits to all affected Industrial Users (lUs) in
          accordance with the approved  pretreatment  program procedures
          within six (6) months  after the issuance of this modification.
          The permits shall require the development  of compliance schedules,
          as necessary, by each industrial user for  the installation of
          control technologies to meet applicable industrial user discharger
          limits and other pretreatment requirements.

     3.   Enforce the industrial pretreatment requirements, including
          industrial user discharge limits, of the municipal sewer use
          ordinance and discharge permits issued pursuant to the ordinance.
          In addition, the CA is required to report lUs that are in violatic
          of the ordinance in April, July, October,  and January.  The
          report shall include a description of corrective  actions that
          have or will be taken by the CA to resolve the violations.  Send
          all reports to the attention of the Compliance Section of the
          Division of Water Pollution Control, Indiana State Board of
          Health.            '

     *».   Carry out inspection, surveillance, and monitoring requirements
          as described in its -approved program which will determine,
          independent of information supplied by  lUs, whether  lUs are  in
          compliance with the industrial user, discharge  limits  and other
          applicable pretrsatment requirements.

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state of Wisconsin

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                                                                              Fart  11.  Section E
                                                                                 £S Ferr.11 :«. wl
Tr.e permittee  Is  reeulred TO ore-ate en  Incustrlel  pretreetr-.ent prc-jre* es ceserl&ei  in  tne  procre*
approved 5y  tne C*per~ent of f^atural Resources  end that cor.pl les »!tn the recuirer.er,ts  s*t  icrrr. lr.
h?.'2lh ^'Is.  ACT.. Ccee.' Te er.sure tne prccrar  is  cpera?ee In accercence -Ith  tne  e;?.-cvec prccrer, the
feile-lne  c=i:ltic-s ane rec'.-Jre-er.ts are  neresy estasl I sned:
      |r.v*-.*cr i-S
           C^t.'^c"e^ ane voiyse e^  InC'.-STrjji  Oischsrcss

           The ;-efrlr?e« sf>el! rair.teiri e cwrrent inventory c< rr.e  oenerel  cfterecter enC voiu.r« cf
           »este»aTer rr.e*  ine-.!»Triel  users cisc^arce ?e "fte  rrei»enT *ror»s enc sr.ail U?C«TS tne
           ircusTrlel vse''  survey ennuelly e-ie resorT «r>y cr.enoes  In  The survey TO rne Wisconsin
           De?erTw»piT s' NaTurei  Resources 5y February  2£Tn of eecft
           Priority  Fcilutsr.rs enc Aj:lTlonel Cr;:nic  Corr.pcunCs
            he  pcrr.iTT&e sr.il I  ccncuct en  Irsver.rory  c*  prloritY polluT«nTs CS S«flr.ee ty  tr,«  U.S. .£?/.,
                  sil  elso icenTHy ens c-jer.Tity  eiclTicr.el  c.-cin!c car.psunis «hich  occur  In rr.e i £j! I ue r.r ,
                  r.T enC sluice.  The  Invei-.tcry s.-.filt  D- ccr-sletea Sy Kerch Jl.  1 5S7 enc s^.5lt  cor.sisT cf :

            15    Se'-slihC jnc sr.aiysls d Tft-  influent enC eMIyent for The priority pol Icrjr.ts.  The
                 so.--?llr.c s'.sll  5e ccr*e cu-lr.j  e  cey  when Ip.-^srrlel dlschercss  ere  ocr-.-rrirc  et r.err.e I  TC
                 r.exl.T.c-n  levels.  The  se-Tcles  shell  te 72-hour ccripc-siTes, except tor vcletile o.-cir.Jcs
                 .Mcr. sf.ell re ts>,en-.py  crtt  ser
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                                          *       -2  -

2.   Cprrrjl  end  Enferee^gr.t

     e.    Incvstriel  User Condlance Schedule*

           The permlrte* shell require the development of  compliance  schedules,  es necessery,  by  ee;n
           Industrial  user for the Inste! Istlofc of control technologies to (*&et  applicable  lnccst.-i«i
           user discharge limits and otfwr pretre'etr»er.t  requirements  end shell  Issue discr.ercs ?e.-?.(ts
*"          l.tc-jst-rie i  users  In acccrsence »!t.h the epprcved  pretreetrr«nt crccrat. procedures  by
           industrial User YiolcTlon S»?orr

           Tns perwirree sftell er.lorce  fne  InCvs'rlel  jretrestr^nT recu iremenrs Inetueln; tncwsTiet y
           Ciscrserce linirs, c4. Tne  Section  t.H  o<  fr>e Coce of Ordnances,   in -tacit ion. rne pe^i— «•
           ts. reculrei Vc reoorr ooerTerty  inCusTriti  users Thet ore In violation c< fhe ortfir.sr.es te
           De:erTn«nt ot >itTurtl Resources  by 30 ceys 'ot lowing t.ie enC of eacr» qgerter.  The re;«r-r
           sh;l I  Induce s cescriptior.  ol correcrive actions that heve or will be teken by-tne pjrsiTT
           te .-esdlve tr.e viols*ic.is.   >e  first report sf.ell be due September 30,  I53..  I? t.->er* er«
           Ir.Swstrlel irsers  in violation cyrlno « cusrter, The report should  so state.
 J.   A.inuel ^recraa Sevle»s

      e.   Procrera Effectiveness Analysis

           Trie pemiTtee  s-"el I  by Keren 31, ennw«l ly evaluate the effect I ver.ess of  the  pretrter»e.-.t
           precran, end sutwit  a report to the Degef-— ent .  *he report she! j  induce  e  Srle
           th« »ork perforrr.es  Curing the year Including the nunbers of permits  issued ens  in1
           nusters end kines of Industrial user reports reviewed, hur.ser  of  Inspections ens .T.S.-. ftcrl
           svrveys ccr.suctea,  budget er.c persc.inel  essicr-ed to 'the progress,  e oer<*rel tfissussle.i  of
           proc.-e* procress  in r-e-ting rr.e cejectlve* ct ts-.e L'eCrcsse Pretreetr«nt  Prcgra-n tccetr.sr
           su— ery ccrvsents  enc reca-.^.eneet ions.
      t.    rrecrom MDdlf Icetlons

            Any  significant prspcsei prosreft nodifleetlcn shall be  subnltted te the Department of  N«ty
            Resources  for  as; ••*!.  Hereinafter, a sicnlf leant procram  modlflcetlon snail  Induce,  tu
            net  be limited tc $ *y chenoe Ir eublln's  lecal  eathorlty  to eomlnlsTer and enforce
            pretreetr-ent proc- ** cenditlcr.s end reeul regents , «ejor modification In me proorer.'s
            eflff-lnlstreti ve proredyt* or operating egree!~«nt(s ),  e  significant reduction in nenits.-inc
            procedures, e significant change In the financial/revenue  system, and a significant change
            tlneludtnc any relaxation)  In the  local limitations for toxicants enforced and  applied to
            effected Industrie! users of the se*eoe treatment works.

       S&ecltl  Conditions                   .
            Surve!11ance

            The perslrrse shell recutre the submission  of,  receive end review self^ncnltcrinc reports
            ot?>er notices fro«f .Industrial  users  In  accordance with the epproveo preTreetwer.t prccrw
            procedures.  The ?er»lrte« s-'-al I  else ccrry oirr Inspection, survei I lenee, end
            reculre^.ef.Ts »r.lch «lll deternlne,  lnoeD*ncent  of Inforr-etion scpoMed by he
            ».twtfi«r rne Incvstrlel users  ere  In  ccrplltnce  »lth the Inewstrlel user e I scr.erge •
            ctr.er e:d'cable cr.etreetwent reculrenents.     .  •


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                                            - 3 -
                   <  violations
     *.-.e p«rmiTTe« sneil j-.oi ! sr.  e  list  si IrOuitriel  users  met r,e»e signi 1 icer.Tiy  vlcl«*e:
       nicirei  ss-er uve eminence  earing me cssencar  yeer.  in ?.-.§ i*.-eeS7  ceily  ne«s?eer
           3y  Ji--iuj-v 31 cf  Tr.e tcl!o»in; r*«-". Pursyenr to '«^ 2 1 |.}I ( I i ($).
c.
     cs;;er,  ice:, nickel,  ;if.c i^c :yeni:e  for  inccsTTiel  users, ei scnersi <"•;  'ftese sursTe.-.ces
     rr.e  Tresrntfir si«.*,r  ens s'.a'I jrssos* «iTern«Te  or re» lislrstlor.s  M  jwSTitie;.  *ne
     perr.iTTe< s'elt provice rri« e»eluiTio-  ol  locel  limi:«Ticns  In t  report  to 7h« C,e;e-Tr»r,r
     5y  ,'u.^e  30,  i?s5.   L'so- co^tjrr.^ce tr-,s  6cce?t«.-.ce o!  eiterr.ste or  ne» I letter icr-.i ;y tie
     Deser-rr.snr, me perrr.ittee $.-.eii ftflcrt Into  its existing se^er use or;inence scic ! It.i Tir.i
     • irnin sin ror.rns.

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Region V Model Language

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                                                           DRAFT  COPY

                               ATTACHMENT 3                 gygj^j JQ REV]S|QH

OTHER REQUIREMENTS
 «•              ,

               APPROVED PR-TREATMENT PROGRAM  CONDITIONS


Under the authority of (Section 307(b)  and  (c) and 402(b)(8) of the Clean

Water Act or applicable State law)  and  implementing  regulations (40 CFR

Part 403), the permittee's final  pretreatment  program application as submitted
                                                   » •
on	 is hereby approved.  The permittee, hereinafter

referred to as the "Control  Authority", shall  apply  and enforce against

violations of-categorical pretreatment  standards  promulgated under

Section 307(b) and (c) of the Act and prohibitive discharge standards as set

forth in 40 CFR Part 403.5.   The Control Authority shall  implement the condi-

tions of the Approved Pretreatnent Program  in the following order:


A.  APPROVED PRETREATKENT PROGRAM CONDITIONS

    1.  Apply and enforce the legal  authorities and  procedures as approved on
        	'which shall include, but not be limited to, those
        specific local effluent limitations established pursuant to 40 CFR
        403.5(c) and enforceable on industrial users of the system for the
        parameters listed in Part III,  Section D  of  this  prmit in accordance
        with the approved program plan  industrial allocation scheme.

    2.  Maintain and update, as necessary,  records indentifying the nature,
       .character, and volume of pollutants contributed by industrial users
        to the publicly owned treatment works (POTW).

    3.  Enforce and obtain appropriate  remedies for  non-compliance by any
        industrial user with any applicable pretreatment  standard and require-
        ment as defined by Section 307(b) and (c) of the  Act, Section 403.5,
        and any State or local requirement, whichever is  more stringent.

    4.  Issue (wastewater discharge permits,  orders, contracts, agreements,
        etc.) to'all affected industrial users in accordance with the approved1
        pretreatment program procedures and require  the development of
        compliance schedules, as necessary, by each  industrial user for the
        installation of control technologies  to meet applicable pretreatment
        standards and requirements as required by Section	.         of
        Sewer Use Ordinance            	.

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                                                                         //%    o
   -5.  Carry out inspection, surveillance,  and monitoring requirements     fe    ^t
        which will determine, independent of information supplied by the    'X/'V*   *~
        industrial user, whether the industrial user is in compliance with
        the applicable pretreatment standards.

    6.  Comply with all  confidentiality requirements set forth in 40 C"R Part
        403.14 as well as the procedures established in the apprcved pretrea--
        ment program.

    7.  Maintain and adjust, as necessary, revenue sources to ensure adequate
        equitable and continued pretreatment program implementation costs.
                                                                *

S.  REPORTING R£OUI?.EMEN7S

    The Control Authority shall prepare and submit to the {USEPA, Region V,

    Penr.its Section or the State) a report on the	:	th

    of	and the	             th of
    which describes the pretrestment program activities for the {previous

    calendar year or 6-mcnth period or more frequently as required by the

    Approval Authority).  Such report(s)  shall  include:


    1.  An updated listing of the Control Authority's industrial users which
    identifies additions and deletions of any industrial  users from the
    	  19 industrial waste inventory.  Reasons shall be
    provided for tne aforementioned additions a-nd removals.

    2.  A descriptive summary of the compliance activities initiated, ongoing
    and completed against industrial users which shall include the number of
    major enforcement actions (i.e. administrative orders, show cause hearings,
    penalties, civil actions, fines, etc.) for the reporting period.

    3.  A description of all substantive changes proposed for the Control
    Authority's program as described in Part III, Section A of this permit.
    All substantive changes must first be approved by (Agency Name) before
    formal adoption by the Control Authority.  Hereinafter, substantive
    changes shall include, but not be limited to, any change in the enabling
    legal authority to administer and enforce pretreatment program conditions
    and requirements, major modification in the program's administrative
    procedures or operating agreements(s), a significant reduction in monitoring
    procedures, a significant change in the financial/revenue system, or a
    significant change in the local limitations for toxicants enforced and
    applied to all affected industrial users of the sewage treatment works.

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        5.  The sampling and analytical results for the specified parameters as
        contained in Part III, Section C of this permit.

        6.  (optional)  The Control Authority shall submit to the (USEPA, Region V,
        Permits Section and/or State) by December 31 cf each year, the names and
        address of the tanneries receiving the sulfide waiver pursuant to the
        procedures and conditions established by 40 CFR 425.04(b) and (c).  This
        report must identify any problems resulting from granting the sulfide
        waiver as well as any new tanneries tributary to the sewerage system for
        which the sulfide standards nay apply or any tannery receiving the sulfide
        waiver which no longer is applicable.

        7.  (optional)  The Control Authority shall submit to the (USEPA, Region V,
        Perr.its Section or State Permit Section) by December 31 of each year, the
        name and. address of each industrial user that has received a revised
        discharge limit in accordance with Section 403.7 (Removal Allowance
        Authority).  This report must comply with the signatory and certification
        requirements of Section 403.12 (1) and (m).
    C   5A1-01 I'»~ AN'D ,Mn*i'ITQ3TNG ^n'lTsrMrf'T
    w •  ^r\, v ^ i • !*• rv^w i*w-iiiw*t»n*J i»taWv*i*_iLn««
        1.  The Control Authority shall sample, analyze and monitor  its influent,

        effluent and sludge in accordance with the techniques prescribed in 40 CFR

        Part 125 and amendments thereto, in accordance with the specified moni-
                                                  /
        toring frequency and schedule for the following parameters:
(1)  Parameters

    Total  Arsenic (As)

    Total  Cadmium (Cd)

    Total  Chromium (Cr,)

    Total  Chromium (Cr)

    Total  Copper (Cu.)

    Total  Cyanide (CN)-

    Total  Iron (Fe)

    Total  Lead (?b)

    Total  Mercury (He)

    Total  Nickel  (Ni)
Units    Frequency    Samsle Type    (2) Permittee's

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(1) Parameters                     Units     Frequency.    Satrole Type    (2)  Permittee's

    Total  Phenols
    •
    Total  Silver (Ag)          •                                      •

    Total  Zinc (Zn)

    Total  Kjeldahl Nitrogen'(TKN)

        (1)   Approval Authority  should include  other  parameters as  needed.
        (2)   Note wnether sampling  apply to perraitte's  influent,  effluent and  sludge.


 -   D.   SPECIAL  CONDITION'S

        1.  At  no time shall  the  following daily  influent  values be  exceeded by

        the Control Authority for the specified parameters:
                                     Me/ 1
Pounds / Day
 Parameters

 Total  Cyanide  (Cn)
 Total  Cadmium  (Cd)
 Total.Chromium (Cr,  T)
 Total" Copper (Cu)
 Total  Iron  (Fe)
 Total  Lead  (?b)
 Total  Mercury  (Hg)
 Total  Nickel  (Ni)
 Total  Silver (Ag)
 Total  Zinc  (Zn)
 (Others)

 2.   If the  sampling  data  results from Part  III, Section C of this permit meet
 the  criteria of 40 CFR 403.5(c), then this  permit will be modified to include
 influent values for  these parameters.

 3.   (optional)  The  Control Authority shall notify (USEPA, Region V, Permits
 Section or the State) 60  days prior to any major proposed change in existing
 sludge disposal practices.

4.   (optional)  The  Control Authority shall monitor the following industrial
users  discharge for  the specified parameters .in accordance with the following
frequency and schedule and submit the results to (Region V or the State) on
the	      th of       .	and the	            the of

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    List Users,
                         Parameter
Units
                                                  Frequency
Sample
 Type
                                    Notes
(Others)
 E.   RETAINER

 The US-PA  R°aicn V  and  the State  retains the right .to take legal action
 Ic!ins: trU industrial user and/or the  Control Authority for those cases
•thirl a plral? violation has occurred because of the failure of  an industrial
   "    co%  ance with applicable  pretreatment standards and requirements.
                                                            '4..

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t
                                           REGION VI
                                   (Region VI Model Language)

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                                       PART III

                                       Page 14
A.  OTKt?. R-Q.UIR-MENTS
    1.  Contributing Industries and Pretreat-ent Requirements

        a.  The permittee shall operate an industrial pretreatnent program in
accordance with section 402(1:) (S) of the Clean Water Act and the General
Pretreatment Regulations (40 CFR Part 403}.  The program shall also be
implemented in accordance with the approved POTW pretreatment program submitted
by the permittee which is hereby incorporated by reference.

        b.  The permittee shall establish and enforce specific limits to
implement the provisions of 40 CFR §403.5(a) and {b), as required by 40 CFR
§403.5(c).  All specific prohibitions or limits developed under this requirement
are deeded to be conditions of this permit.  The specific prohibitions set out
in ^0 CFR §403.5(b) shall be enforced by the permittee unless modified under
this provision.

        c.  The permittee shall, prepare annually a list of Industrial Us^rs
which, during the past twelve months, have significantly violated pretreatment
requirements.  This list is to be published annually, in the largest newspaper
in the municipality, during the month of	, with the first
publication due .         	.

        d.  In addition, at least 14 days prior to publication, the following
information is to be submitted to the EPA and the State for each significantly
violating Industrial User:

            1.  Condition(s) violated and reason(s) for violations(s),

            2.  Compliance action taken by the City, and

            3;  Current compliance status.

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t
                                         KEGION VIII

                                   (Westminster, Colorado)
                          [language used by the EPA Regional Office]
                                   (State of South Dakota)
                          [language used by the EPA Regional Office]

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                                                                                 t
-I

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Westminster, Colorado

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                           NATIONAL  PRETREATMENT  PROGRAM
                              MEMORANDUM OF AGREEMENT
                                   BETWEEN THE
                           CITT  OF WESTMINSTER, 'COLORADO
                                      AND  THE
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,  RESIGN VIII
    The United States Environmental Protection Agency, Region VIII (hereinafter,
the "E?A") hereby approves the City of Westminster's (hereinafter, the "City")
rretreat.meni Program described in the City's November 15, 1S32 sufcmittal
document entitles "Industrial Pretreatnent Procram", as meeting the recuireraents
of Section 307(b) and (c) of the Clean Water Act (hereinafter, the "Act") and
regulations promulgates thereunder.  Further, to define the responsibilities for
the establishment and enforcement of National Pretreatment Standards for
existing .and new sources under Section 307 (b) and (c) of the Act, the City and
EPA heresy enter into the following agreement:

    1.   The City has primary responsibility for enforcing against discharges
         prohibited by 4C C?R 403.5, and applying and enforcing any National
         ?retreatment Standards established by the United States Environmental
         •protection Agency in accordance with Section 307(b) and (c) of the Act.

    2.   The City shall implement the Industrial Pretreatnient Program in
         accordance with the legal authorities, policies, and procedures
         described-in the permittee's Pretreatment Program document entitled,
         "Industrial Prszreatment Program", November 19£2.  Such program commits
    \    the City to do the following:

         a.   Carry cut, inspection, surveillance, and monitoring procedures that
              will determine, independent of information supplied by the indus-
              trial user, whether the industrial user is in compliance with the
              pretreatment standards;

         b.   Recuire development, as necessary, of compliance schedules by each
              industrial user for the installation of control technologies to
              meet applicable pretreatment standards;

         c.   Maintain and update, as necessary, records identifying the nature
              and character of industrial user inputs;

         d.   Obtain appropriate remedies for nonccspliance' by any industrial
              user with any pretreatment standard and/or requirement; and,

         e.   Maintain an adequate revenue structure for continued
              implementation of the pretreatment program.

    3.   The City shall provide-the United States Environmental Protection
       '  Agency and tna State of Colorado with an annual report briefly
         describing the City's pretrsarsent program act.iv.-ities over the previous
         calendar year.  Such repcrz shall be submitted nc later than'March 2Stn
         of each year and shall .include:   '               •

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        a.   An updated listing of the City's industrial users.

        b.   A descriptive sunraary of the comoliance activities including
             numcer of major' enforcement actions,  (i.e., .administrative orders,
             penalties, civil actions, etc.).

        c.   An assessment of the compliance status, of  the City's  industrial
             users and the effectiveness of the City's  pretreament  program in
             meeting  its needs and objectives.

        d.   A description of all substantive chances made to  the  permittee's
             pretreatment .program description referenced  in  paragraph  2.
             Suostantive cnanges include, but are  not  limited  to,  any  change in
             any  ordinance, major modification  in  the program's administrative
             structure or operating  agreement (s),  a significant reduction  in
             monitoring, or a chance  in  the method of funding  the  program.

        Pretrearsent  stancards (40 CF?. ^03. 5) prohibit  the introduction of the
        following pollutants  into the waste treatment  system from  arw  source of
        ncnccmestic discharge:                     .                ""* *

        a.   Pollutants wnvch create  a fire or  explosion  hazard  in the publicly
             owned treatment  wcr^s (?OT«);

        bv-  Pollutants which will cause corrosive structural  damage to the
             POT*1, but  in  no  case, discharges with a ?H lower  than 5.0;

        c.   Solid or viscous- pollutants in  amounts which will cause
             destruction  to the  flow in  sewers,  or other  interference  with
             operation  of  the. POT*1;
6.'
     d.   Any pollutant, including oxygen demanding pollutants
          etc.), released in a discharge at such a volume or strength as to
          cause interference in the POT*/; and,

     e.   Heat in amounts which, will inhibit biological activity in the
          POTW, but in no case, heat in such quantities that the influent to
          the sewage treatment worfcs exceeds 104° r (40° C).-

5.   In addition to the general limitations expressed in paragraph 4. above,
     applicable National Catecorical Pretreatment Standards must be met by
     all industrial users of the POT*/.  These standards are published in the
     Federal Regulations at 40 CFR 405 et. seq.

The Agreement contained herein shall be incorporated, as soon as possible,
in the City's NPDES permit..  Ncncorr.pl iance with any cf these requirements
shall be subject to the same enforcement procecures as any permit violation.

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\
t
     Nothing in this Agreement is intended to affect any Pretreatment requirement
 including any standards or prohibitions, established by state or local  law as
 long as the state and local requirements are not less stringent than any  set
 forth in the National ?retrearr.ent Program Standards, or other requirements or
 prohibitions estaolisned under the Act or regulations promulgated thereunder.

     Nothing in this Acreement shall be construed to limit the authority of the
 U. S. -Pn to take action pursuant to Sections 204, 208, 301,304, 305,  307, 305,"
 30S, 311, 4Q2, 404, 405, 501, or other Sections of the Clean Water Act  of 1377
 (33 USC 12:1 et sea).

     This Agreement will become effective upon the final date of signature.
     City of Westminster, Colorado
U.S. Environmental Protection Agency
              Region VIII
 3y
                                       Date
     Stats of. Colorado Dsparrr.snt of Health
         Water Quality Control Division
 By_-
 Date

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State of South Dakota

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                                                      PART in
                                                      Page 17 of 19
                                                      Pertiit So. :   SD-0022574
 0—JT7 5S'r"~'37",/'rtr-~
 .,. — .- • —-^ • -.—.—.1 .
Industrial Pretreatment Program

1.    The -permittee has been delegated primary  responsibility for enforcing
     against discharges prohibited by iO C??. i03.5,  and applying and enforcing
     any National Pretreatment Standards established by the United Stares
     Environmental Protection Agency in  accordance vith Section 307(b) and
     (c) cf the Act.

2.    The permittee shall implement the Industrial Pretreacment Program in
     accordance vith the legal authorities,  policies, and procedures described
     in the permittee's Pretreatment Program document entitled, Pretreatment
    •Prrtrsn, and submitted October 27,  1982.   Such program commits the
     permittee to do the following:

     a.  Carry out inspection, surveillance, and monitoring procedures which
         vill determine, independent of information supplied by the industrial
         user, whether the industrial user is  in compliance vith the pre-
         treatment standards;        	

     b.  Require development, as necessary,  of compliance schedules by each
         industrial user for the installation of control technologies to seet
        •applicable pretreatment. standards;

     c.  Maintain and update, as necessary,  records identifying the nature
         and character of industrial user inputs;

     d.  Obtain appropriate remedies for nor.compliance by any  industrial
         user vith any pratreatment standard and/or -re'quirer.ent; and,

     e.  Maintain an adequate revenue structure for continued  implementation
         of the pretreataent pragraa.

3."   The permittee shall .provide the United States Environmental Protection
     Agency and the State" of South Dakota vith an annual report briefly
     describing the permittee's pretraatnent progran activities'over the
     previous calendar year.  Such report shall be submitted no later than
     March 23th qf each year and shall include:

     a.  An updated listing of the permittee's industrial users.

     b.  A descriptive-summary of the conpiiar.ee activities including
         numbers of any major enforcement actions (i.e., administrative^-
         orders, penalties,- civil actions, -etc,).-'

     c. "An assessment-cf the compliance status of the permittee's industrial
         users and  :he effectiveness cf the permittee's p re treatment prosr^
         in meeting its'needs and objectives.                    -         ,  , ,L -

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                                                 PART III
                                                                    i
                                                 Page 13 of 19
                                                 Permit N'o.:  S3-OC2357i

I  F-ICTITI^rrs  (Continued)

>triil ?ra:raat=ent Prograa  (Ccr.tir.ued)

c.   A description of  all  substantive changes zaca'to  the remittee's
     pretreatnent progran  description referenced  in  paragraph  2.   Sub-
     stantive changes  include, but are not  tinitac  to, any  change in
     any ordinance, aajor  aodification-in the program's  administrative
     structure  or operating  agres=ent(s), a significant  reduction in
     ncr.it c ring, or a  change in  the nethcd.of funding  the prcgrss.

?ratreatment standards  (iO  C??.  ^03.5) prohibit  the  introduction  of the
 following pollutants  into the waste treatment  systaa  froa  sr.y source
of  nondoasstic .discharge:

a.   Pollutants which  create a  fire or explosion  hazard  in  the publicly
     owned  treat-snt works (POTV);
b.  Pollutants which will cause corrosive structural dazage to the ?
   ' but in no case, discharges wi^h a p£ lower than 5.0;
                                                                     TV
                                                                     m
 c.   Solid or viscous pollutants in amounts  which will cause destr-^ctirr.
     to the flow in sewers,  or other interference vich operation of the
     POT*;

 d.   Aay pollutant, including oxygen desanding pollutants (30^5, etc.),
     released in a discharge at such a volu=e or strength as to cause
     interference' ia the ?OTV; and,

 e.   Heat in aaouncs which will inhibit biological activity in the
     POTV, buc in no case, heat in such quantities that the influent
     to the sewage treatment works exceeds 10^°7 (iO°C).

 In addition to the general limitations expressed in paragraph ±. above,
 applicable National Categorical Pretreatrent Standards =ust be sec by
 all industrial users of the POTW.  These standards are published in
 the Federal Regulations at 40 C?H 405 et. seq.

 The persit issuing authority retains the right to take legal action
 against the'industrial user and/or the .POTW for those cases where a
 perzit violation has occurred because of the failure of an industrial
 user to. =eet an. applicable pretreafsent standard.

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t
                                            REGION  IX




                                    (.Region IX Model Language)

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f
                              Pretreatmsnt of  Industrial Wastewaters
 a.
 b.
 c.
d'.
The  peraittee  shall  be responsible for  the performance of ail  pretreacaant  requirements
contained  in 40 CFR  Part  403  and  shall  ba subject to enfcc.cesant  actions, penalties,
fines  and  otter remedies  by tea U.S. Envircnasntal Protection  Agency (EPA), cr
other  appropriate parties,  as provided  in tha Clean Hater Act,  as snsnoed  (33 USC
1351 et sec.)  (hereafter  'Act").   Ths permittee's Approved POTW Pretreataant Program
is hereby  made an enforceable condition of this permit.  EPA may  initiate
action against an industrial  user for noncomplianca with applicable standards and
requirements as provided  in tha Act.

The  peraittee  shall  enforce tha requirements promulgated under sections 307(5),
307(c),  307(d) and 402(b) of  tha  Act.   Tha peraittee shall cause  industrial users
subject to Federal Categorical standards to achieve compliance no later than the
date specified in those requirements or, in tha case of a new  industrial user,
upon cGsnsnceraent of the  discharge.
The peraittee  shall perform the pretreatment  functions as required in 40 CFR Part
 403 including, but not  liaited to:

 (1)   Implement the necessary legal authorities as provided  in 40 CFR 403.8(f)(D?
     (2)   Enforce the pretreateent requirements under 40 CFR 403.5 and 403.6;
(3)
      Insistent  the programmatic functions as provided  in  40 CFH 403.8(£)(2);
                                                                                  and
 (4)  Provide  the requisite  funding  and personnel  to  implement the pretreaCDent
     program  as provided  in 40 CFR  403.8(f){3).

The permittee shall submit  annually a  report  to EPA  Region  9  and the State describing
 the permittee's pre treatment activities over  the  previous twelve months.   In the
 event  that  the permittee  is not  in  compliance with any conditions or requirements of
 this permit,  then the permittee  shall  also  include the reasons for non-compliance
 and state how and when  the  permittee shall  comply with such conditions and requirement.
This annual report is due on       (DSTE)          of each  year and shall contain,
 but not  be  limited to,  the  following information:

 (1)  A summary of. analytical results froa representative, flow-prcportioned,  24-hour
     composite sampling of  the POTW's  influent and effluent for those priority
     pollutants known or  suspected  to  be discharged  by industrial users.   Sludge
     shall  be sailed during the «my  24-hour period and analyzed for the same  pollu-
     tants  as the influent  and effluent sampling  and analysis.   The sludge analyzed
     shall  be a composite sample of a  minimum of  twelve discrete samples  taken  at
     equal  time intervals over the  24-hour  period.   Wastewater and sludge sampling
     and analysis shall be  performed a minimum of    (FREQUENCY]     The peraittee
     shall  also provide any influent,  effluent or sludge ncnitoring data  for nonpricr:
     pollutants which the peraittee believes  may  be  causing cr contributing to
   •  interference, pass through  cr  adversely  impacting sludge quality.

 (2).  A discussion of upset,  interference, cr  pass through, incidents,, if any,  at tr
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     none of tha industrial user(s)  responsible.  The  discussion shall also inc
     a review of tha applicable pollutant limitations  to determine whether any
     additional limitations, or changes to existing  requirements, may be necessary
     to prevent pass through and violations of  state water quality standards,
     interference with the operation of the PCTW, or interference with disposal
     cf sewage sludge.

(3)   The cuaulative number of industrial users  that  the peraittee has notified
     regarding Baseline Monitoring Reports and  the- ctsailative number cf industrial
     i ii*a»- responses.        •                               '

(4)   An updated list of tha permittee's industrial users, or a list of deletions
     and additions Keyed to a previously submitted. list.  The permittee shall
     provide a brief explanation fcr each deletion.  The list shall identify the
     users subject to Federal Categorical Standards  by specifying which set of stand-
     ards are applicable.  The list shall indicate which categorical industries, or
     specific pollutants froa each industry, are subject to local limitations that are
     mere stringent than the Federal Categorical Standards.  The permittee shall also
     list the noncategcrical industrial users that  are subject only to local discharge
     limitations.  The permittee shall characterise  the compliance status of each
     industrial user by employing the following descriptions;

     (A)  In compliance with Baseline Monitoring Report requirements (where applicable

     (3)  Consistently achieving ccapliance;

     (C) • Inconsistently achieving ccapliance;

     (D)  Significantly violated applicable pretreat=nt requirements as defined
          by 40 C?R 403.8(f}{2)(vi"i~);

     {£}  On a ccapliance schedule to achieve ccnpliance  (include the date final
          ccnpliance  is required);

     (F)  Mot achieving ccnpliance and not on a ccnpliance schedule;

     (G)'  The permittee does not know the industrial user's ccnpliance status.

     A report describing the ccnpliance status of any industrial user characterized
     by. the descriptions  in items 4(C) through (G)  above  shall be submitted quarterly
     from the annual  report date to EPA Region 9 and the  State.  The report shall
     identify the specific  ccnpliance status of each such industrial user.

(5)  A suanary of tha inspection and sacpling activities  conducted by the permittee
     during the past year to gather  information and data  regarding industrial users.
     The suanary shall include:

     (A)  The naaas of the  industrial users subject to surveillance by the permittee
          and an explanation of whether  they were inspected, saapled, or both
          and the frequency of these activities at each user? and

      (3)  The conclusions or results fron the. inspection  or  saspling of each
          industrial  user.

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f
 (6)   A suaiary of tha ccrpliance/enforcansent activities during the past year. The
      suzxnary shall include the names of the industrial users affected by the
      following actions:

      (A)  Wamirj; letters cr notices of violation regarding the industrial users'
           apparent noncc=?iianc3 with Federal Categorical standards or local discharge
           limitations.  Fcr each industrial user identify whether the apparent
           violation concarned the Federal Categorical Standards or local discharge

      (3)  Acainistrativ* Orders regarding the industrial users' noncoapliance
           with Federal Categorical Standards or local discharge limitations.  Pec
           each industrial user identify whether the violation concerned the Federal
           Categorical Standards cr local discharge limitations;

      (C)  Civil actions regarding the industrial users' ncncccrpliance with Federal
          ' Categorical Standards or local discharge limitations.  For each industrial
           user identify whether the violation concerned the Federal Categorical Stand-
           ards cr local discharge limitations;

      (D)  Criminal actions regarding the industrial users' ncnccspliance with  .
           Federal Categorical Standards cr local discharge limitations.  Fcr each
           industrial.user identify whether the violation concerned the Federal Categor-
           ical Standards or local discharge limitations;

      (S)  Assessment of monetary penalties.  For each industrial user identify the
           amount of the penalties;

      (F)  Restriction of flow to the POTW? or

      (G)  Disconnection from discharge- to the PCTW.

 (7)   A description of any significant changes in operating the pretreataent  program
      which differ from the information in the permittee's Approved POTW Pretreaoaent
      Program including, but not limited to changes concerning: the program's
      administrative'structure; local industrial discharge limitations; monitoring
      program or monitoring frequencies; legal authority or enforcement policy;
      funding mechanisms; resource requirements; or staffing levels.

 (8}  A summary of the annual pretreatasnt budget, including the cost of pretreatment
      program functions and equipment purchases.

 (9)  A sunnary of public participation activities to  involve  and  inform the public.

(10)  Other miscellaneous pretreatment developments, including treatment facilities
      changes, changes in sludge disposal methods, receiving water quality, data
      management and concerns not described elsewhere  in  the report.

Duplicate signed copies of these reports .shall be submitted to the Regional Acsninistra:
and the State at the  following addresses:

            Regional A<±ainistratcr
            U.S. Environsenta.1 Protection Agency
            Sagicn 9 Attn: Vf-S-1                •          [SATE ADCR2SS)
            215 Present Street        •                                            ..... ,
            San Francisco, California  94105                       .            i'/M'"'.--

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t

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f
                                           REGION X




                                    (Region X Model Language)

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f
                                                    (example pr^treatment langua
                                                    for Region' X>OTW permits)

     H.   Pretreatment Program  Requirements

          1.    The permittee  shall Implement the Industrial Pretreatment
program in accordance with  the  legal authorities, policies, procedures, •
and financial  provisions  described 1n the permittee's pretreafcnent program
submission entitled,              and dated,          , and the General
Pretreatment  Regulations  (40CFR 403).  At a minimum, the following
pretreatment  implementation activities shall be undertaken by the
permittee:

               a.    Enforce categorical  pretreatment standards promulgated
               pursuant  to  Section 307 (b) and (c) of the Act, prohibitive
               discharge  standards as set forth 1n 40 CFR 403.5, or local
               limitation specified  in Section	of the
               (City/District)  code, whichever are more stringent or apply
               at the time  of Issuance or modification of an (industrial
               waste acceptance form/industrial discharge
               permit/contract).  Locally derived limitations shall be
               defined as pretreatment standards under Section 307(d) of
               the act and  shall  not be  limited to categorical industrial
               facilities.

               b.   Issue  (industrial discharge permits, contracts,
               industrial waste acceptance form) to all affected
               industrial users.  (Permits, contracts, industrial waste
               acceptance forms)  shall contain limitations, sampling
               protocols, compliance schedule if appropriate, reporting
               requirements,  and  appropriate standard conditions.

               c.   Maintain and update,  as necessary, records, identifying
               the nature,  character, and volume of pollutants contributed
               by industrial  users.  Records shall be maintained in
               accordance with Part  II.G.4.

               d.   Carry out  inspections^ surveillance, and monitoring.
               activities on  Industrial  users to determine compliance  with
               applicable pretreatment standards.  Frequency of monitoring
               of industrial  user's  wastewaters shall be commensurate with
               the character  and  volume  of the wastes, but shall not be
               less than two(2) times per year.

               e.   Enforce and obtain remedies for non-compliance by any
               industrial users with applicable pretreatment standards and
               requirements;

          2.   The permittee shall develop and submit to EPA for approval
within 6 months of the effective  date of this permit, an accidental spill
prevention program to reduce  and  prevent spills and slug discharges of
pollutants from Industrial  users. The program, as approved by the Agency,
will become an enforceable part of this  permit.

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          3.   Whenever,  on  the  basis of  Information provided to the Water
Division Director,  U.  S.  Environmental Protection Agency,  it has been
determined that any source  contributes pollutants in the permittee's
treatment works in  violation  of subsection  (b),  (c) or  (d) of Section 307
of the Clean  Water  Act,  notification'shall  be provided  to  the permittee.
Failure by the permittee to commence an  appropriate enforcement action
within 30 days of this notification may  result in appropriate enforcement
action against the  source and permittee.

          4.   Pretreatment  Program Sampling Requirements

          The permittee  shall sample, on a  semi-annual  basis, Its
influent, effluent, and  sludge  over three consecutive days (Monday  thru
Friday) for the following pollutants:  arsenic,  cadmium, hexavalent
chromium, total chromium, copper,  cyanide,  lead, mercury,  nickel, silver,
and zinc.  Results  shall  be reported as  total except where noted otherwise.

          Daily samples  of  each shall be 24 hour composited and shall be
analyzed and  reported seperately.   Where composite sampling is not
feasible for  a particular pollutant, 3 grab samples over a 24 hour  period.
are acceptable.  Whenever possible, periods of sampling should be
representative of a wet  weather and dry  weather  period.

          The sampling protocol may be modified  without formal notice, if
the results of the  sampling data,  as presented i.n the annual report,
indicate levels pollutants  are  either insignificant or  conversely
significant as they relate  to interference  at  the treatment plant,  sludge1
contaminating or effects on water  quality.                                 »

          (Optional)  The permittee shall perform chemical  analyses of its
influent, effluent, and  sludge  every (variable)  from the effective  date of
this permit for all specific toxic pollutants  listed in Tables II and III
of Appendix D of 40 CFR  122..

          (Optional)  The permittee will-be required to conduct a
flow-through/static/embryo-larval  bioassy to test (chronic/acute) exposure
on ecologically important species  in the area.

          5.   Pretreatment  Report

               1.   The  permittee  shall  provide  to the  U.S. EPA Region 10
Office an annual report that briefly describes  the permittee's program
activities over the previous twelve months. The Agency may modify,
without  formal notice, this reporting  requirement to require less frequent
reporting if it is  determined that the data in the report  does not
substantially c.hange from year to  year.   (The  permittee must also report
on the pretreatnent program activities of all  participating agencies (Name
of agencies).)  This report shall  be submitted to the above address no
iater  tnan                    of each year  and shall include:

                    (1)   An updated Industrial  survey,  as  appropriate.

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                    (11)  Results of wastewater sampling at the treatment
plant as specified 1n  Section  I.B.2.  In addition, the permittee shall
calculate- removal  rates  for each pollutant, and provide an analysis and
discussion as to whether the existing local limitations specific in
Chapter _ Section  _ _ of the (City/District) code continue to be
appropriate to prevent treatment plant interference, pass through of
pollutants that could  affect water quality, and sludge contamination.

                    (iii)  Status of Program implementation to include:

                         a.    Any substantial modifications to the
                         pretreatment program as originally approved by
                         the U.S. Environmental Protection Agency, to
                         include staffing and funding updates.

                         b.    Any interference, upset or permit violations
                         experienced at the POTW directly attributable to
                         industrial users.

                         c.    Listing of industrial users inspected and/or
                      '   monitored during the previous year and sugary of
                         results.

                         d.    Listing of industrial users planned  for
                         inspection and/or monitoring for the next year
                         along with inspection frequencies.

                         e.    Listing of industrial users notified of   .
                         promulgated pretreatment standards and/or local
                         standards as required in 40 CFR Part
                               '
                         f.    Listing of industrial users Issued
                       .  (Industrial discharge permits, contracts,
                         industrial waste acceptance forms) .

                         g.    Listing of industrial users notified of
                         promulgated pretreatment standards or applicable
                         local  standards who are on compliance schedules.
                         The  listing should include for each facility the
                         final  date of compliance.

                         h.    Planned changes in the implementation
                         program.

                    (iv)  Status of enforcement activities to include:

                         a.    Listing of industrial users, who failed to
                         submit baseline reports or any other reports as
                         specified in 40 CFR 403.1 2(d) and in Chapter _
                         Section       of the (City/District) code.   •.

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of 40 CFR
                  b.    Listing  of Industrial users  not complying
                  with  federal  or local  pretreatment  standards as
                  of  the final  compliance  date.

                  c.    Sunniary  of enforcement  activities  taken or
                  planned against non-complying  industrial users.
                  The permittee shall  provide  public  notice of
                  significant violators  as outline  in 40  CFR  Part
                  403.8(f)(2)(11).

   2.   The permittee shall  notify the EPA 60  days  prior  to any
   major proposed changes in its existing  sludge disposal practices.

   (Optional)  The permittee shall provide information as required
.FR Part 403.12 (1) and (j) regarding removal allowance.

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                                                                 VLB.13,
"Guidance on Enforcement of Prohibitions Against Interference and Pass
Through", dated May 3, 1985.

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1*402.

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  ,
  |       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20-160
                       MAY 3   1935
                                                      •iincr 01-1
                                                        AMI ctiMpi iA\cr
                                                          MOMTURIMi
 MEMORANDUM

 SUBJECT:  Guidance on Enforcement of Prohibitions Against
           Interference and Pass Through

 FROM:     Glenn L. Uriterberger  •&&~^ £.
           Associate Enforcement Counsel ''
             for Water
                                    ,
           Rebecca W.  Hanger,  Director
           Office of Water Enforcement
             and Permits

 TO:        Regional Counsels,  Regions I  -  X
           Water Management Division Directors,
             Regions I  - X
 Summary

      EPA  Regions, States with pretreatment  approval  authority and
 publicly  owned wastewater  treatment plants  (POTWs) with approved
 pretreatment programs can  and should continue  to  enforce the
 general prohibitions against interference and  pass through,  40
 CFR  §§403.5(a), although the regulatory definitions  of  the terms
  interference" and "pass through" have been  remanded by the  U.S.
 Court of  Appeals For the Third Circuit, in  National  Association
 of Metal  Finishers et al.  v. EPA 719 F.2d 624  (3rd Cir.  1983)	
  1  the Agency has suspended them.  49 Fed.  Reg.  5131  (Feb.  10,-
   14 J •                                 ^^^^—    _
     Until EPA promulgates new definitions for  the  two  terms/
enforcement agencies should interpret them according  to accepted
principles of statutory construction.  In each  case,  the enforce-
ment agency should consider the general meanings of the two
words, the legislative history of the provisions of the Clean
water Act in which they appear and other, related, provisions,
judicial interpretations including NAMF v. EPA, supra,  appropriate
principles of general law, and the relationship of the  facts of
any particular case to policies which will best effectuate the
intent of Congress with regard to pretreatment  in the context of
tne Clean Water Act as a whole.  EPA offers some sugaestions on

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                              - 2 -
interpretation below, but until a new definition is promulgated,
determinations of whether a particular discharge constitutes
interference or pass through should be made case by case.

Background

     In the Clean Water Act, Congress directed the Administrator
of EPA to promulgate regulations "to prevent the discharge of
any pollutant through treatment works {as defined in section
212 of this Act) which are publicly owned, which pollutant
interferes with, passes through, or is otherwise incompatible
with such works."  Section 307(b)(l).  The Administrator carried
out his mandate through two types of regulations:  technology-based
"categorical" standards which apply to particular categories of    •
industries discharging into POTWs (these appear at 40~CFR Part  405
et. seq.) and general prohibitions which apply to all non-domestic
indirect dischargers (these appear at 40 CFR §403.5).  All these
regulations are to be enforced by the POTW in question if it has
an approved pretreatment program pursuant to 40 CFR §403.9, by  the
State in which the POTW is located, if the State has pretreatment
approval authority pursuant to 40 CFR §403.10, and by EPA.  (Pur-
suant to 40 C.F.R. §403.5(e), if, within 30 days after notice ffom
EPA or the State, the POTW fails to commence appropriate enforcement
action to correct an interference or pass through violation, EPA
or the State may proceed.)  The regulations also require each
POTW that must institute a pretreatment program (and other POTWs
under certain circumstances) to develop specific local limits
for individual indirect dischargers where necessary to prevent
interference and pass through.  40 CFR §403.5(c).  Such facility-
specific limits promulgated by POTWs are called local limits.
They are enforceable, independently of the general prohibitions.

   •  The federal prohibitions against interference and pass
through are part of the general prohibitions.  The prohibition
against interference was first promulgated on November 11, 1973,
40 C.F.R. Part 128, 38 Fed. Reg. 30983.  A revised definition
was promulgated as part of the June 26, 1978, General Pretreatment
Regulations 43 Fed. Reg. 27736; EPA amended the definition on
January 28, 1981, 46 Fed. Reg. 9404.  As part of the latter
action, EPA also promulgated, for the first time, a prohibition
against pass through and a definition of that term.  Both defini-
tions were challenged in the NAMF case, supra.  On September 28,
1983, the Third Circuit remanded both definitions to the Agency.
It found the definition of "interference" invalid for failing to
require a showing of causation, and it held that the definition
of "pass through", had not been promulgated in accordance with
the requirements of the Administrative Procedure Act.  NAMF v.
EPA, supra, at pp. 638-641.  The Court expressly declined to rule
on the substantive prohibitions.  Id. at note 17.  In accordance
with the Court's opinion, the Agency administratively suspended
both definitions on February  10, 1984.  49 Fed. Req^ 5131.  EPA
will shortly propose new definitions consistent with the Third
Circuit's holding.                   .

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                              - 3 -
     In February 1984, the Agency convened an advisory committee,
the Pretreatment Implementation Review Task Force (PIRT), to assist
the Agency in implementing the pretreatment program.  The committee
was composed of representatives of industry, State regulatory
agencies, POTWs, environmental groups and EPA Regional offices.
PIRT recommended in its Final Report to the Administrator on
January 30, 1985, that in view of the NAME* decision, the Agency
promptly issue guidance to all agencies responsible for pretreat-
ment enforcement informing them that the substantive prohibitions
against interference and pass through remain enforceable despite
the suspension of the definitions.  This.guidance is intended  to
respond to PIRT's recommendation.

Interference

     The prohibition against interference w.ith the operation or
performance of a POTW, which appears at 40 CFR §403.5(a), remains
fully enforceable against any non-domestic industrial user by
the POTW if it has a pretreatment program approved pursuant to
40 CFR §403.9, by a State if it has pretreatment approval authority
pursuant to 40 CFR §403.10, and by EPA.  Until EPA promulgates a
regulatory definition, the question of whether a particular
indirect discharge interferes with the POTW should be determined
with reference to the facts of each case, using traditional aids
to statutory construction such as the legislative history of
relevant provisions of the Clean Water Act, judicial interpre-
tations including NAMF v.  EPA, supra, and principles of common
law where appropriate.  In addition, each P-OTW should continue to
set-local limits under 40 CFR 403.5(c) based on its interpretation
of interference.

     EPA believes that an agency responsible for enforcement
should find an interference violation where it can show that
discharges from an industrial user, either alone or in combination
with discharges from other users, adversely affect the POTW in such
a way as to cause it to violate its NPDES permit or adversely
affect the way the POTW chooses to process, use or dispose of  its
sludge.  Such adverse effects include those which increase the
magnitude or the duration of an NPDES violation or prevent the
POTW from.using .or disposing of its sludge in accordance with
all legal requirements applicable to whatever disposal method  i-t
selects.  The agency needs to first ensure that the problem was
not caused entirely by inadequate operation and maintenance at
the POTW, since, as the Third Circuit noted, Congress did not
intend to require pretreatment for compatible waste.as a substitute
for adequate municipal waste treatment works.  NAMF v. EPA, supra
at 640-641.  The-industrial discharge to the POTW may consist of
conventional, non-conventional or toxic pollutants:  each type
under some circumstances can affect a POTW or its operation.  As
indicated by the Third Circuit, the agency must demonstrate a
causal link between the industrial discharge in question and the-
adverse effect - in particular, that the pollutant discharged
caused, in whole or in part, the NPDES violation or sludge problem
observed.                       .

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                              - 4 -
      Nevertheless,  it  is  important  that nothing  in  the  Act,  the  '-'
 legislative history, or the NAMF opinion  requires an  enforcement
 authority  to show  that the industrial user  charged  with interfer-
 ence  is  the sole cause of the harm  inflicted on  the POTW.   To the
 contrary,  the majority opinion  in that case states:  "We conclude
 that  given the  language and purpose of the  Act,  an  indirect
 discharge  cannot be liable under the prohibited  discharge standard
 unless  it  is £  cause of the POTWs  permit violation or  sludge
 problem."  Id. at 641.   (Emphasis added).  And  see concurring
 opinion  at 667.  This  is  consistent with  the general  principle
 of  tort  law that a tortfeasor is not relieved  of legal  responsi-
 bility because  another tortfeasor or an  innocent party  contributed
 to  the harm caused by  the tort, and it may  not be possible to
 "apportion" the harm among the  different  causes. See_ Restatement
 (Second) of Torts, §§433{A),  881 (1979).   (Indeed,  examples oc
 pollution  are among the classic illustrations  of indivisible
 harms sometimes brought about by a  number of causes. }

      The Third  Circuit held  in  NAMF that  introduction of a
 pollutant  into  a POTW  in  excess of  that  allowed  by  contract witji
 the POTW or by  federal, state or local law, or a discharge which
 differs  in nature  or constituents from the  user's average discharge,
 cannot  be  held  to  be illegal  interference without more, namely,
 a causal link between  the discharge and  the NPDES or  sludge
 problem  at the  POTW.I/ Nevertheless, such  local, State or feder.
 limits  or  known parameters of a user's average discharge may be
 probative  evidence of  the amount and characteristics  of the
 pollution  load  a given POTW  is  capable of treating  while operating
 properly and  in compliance with all its  NPDES  and sludge require-
 ments,  and thus they may  help to determine  the causes of an
 interference  incident.  It  is also  possible, however, to find
 interference  even  where all  industrial users are in compliance
 with  applicable local  limits  where, for  example, the  local limits
 are concentration  based and  the industrial  user  though meeting
 the concentration  based standards  increases the  mass  of pollutants
 so significantly that  it  overloads  the POTW.   It is recommended,
 though  not mandatory prior  to litigation, that the  POTW attempt
 to adjust  local limits to allow the POTW to meet its  NPDES permit.

 Pass  Through
 MBBBBBBBl—*>B^BBB««BB»—•^••••••^^••W        -                                          *

      Like  the prohibition against  interference,  the prohibition
.at 40 CFR  403.5(a) against  pollutants which pass through a POTW
 remains in effect  and  fully  enforceable  against  any non-domestic
 industrial user by the POTW if  it has an approved pretreatment
 program, by  a State if it has obtained approval  authority, or by
   	
 •L/Of course, this holding does not apply to violations of
 categorical standards:  a violation of a categorical standard can
 be shown without a corresponding violation at the POTW.

-------
                                     - 5 -


       EPA.  Until EPA promulgates a new regulatory definition, the
       enforcement authority will have to determine each finding of
       pass through, like interference, -with reference to the facts of
       each case, relying on accepted tools of statutory construction.
       As with interference, POTWs should continue to promulgate local
       limits based on the prohibition against pass through where
       appropriate under 40 CFR §403.5(c).

            Many POTWs are designed principally to treat domestic sewage
       rather than the less common pollutants found in some industrial
     ;  effluent. '__The latter pollutants may not affect POTWs and cause
       interferen.ee, but also may not respond to the POTW treatment
     \  processes.;  Congress directed the Administrator to devise regula-
       tions to prevent such pollutants from passing through, a POTW into
       waters of the United States untreated or inadequately treated.
       Therefore, until a new regulatory definition is promulgated, it
       would be consistent with the statute for an enforcement agency to
       find a pass through violation where a pollutant from a non-domestic
       indirect discharger had passed through a POTW and either alone or
       in combination with discharges from other contributors caused
       the POTW to violate its NPDES permit.

            Although the Third Circuit did not rule on the substance of
Jf     the definition of pass through in the NAMF -case, the logic of its
       •opinion would appear to require a showing of causation to prove
       pass through - that is, the enforcement agency, would need to
       demonstrate a causal connection between the defendant's discharge
       and the POTW's NPDES violation.  Nevertheless, as with inter-
       ference, to make out a case of pass through, the enforcement agency
       would not have to show that a plant's discharge was the sole
       cause of the POTW's toxic discharge, only that it was one cause.

            A plaintiff could show pass through by demonstrating that a
       particular pollutant discharged by the industrial user also
       appeared in the effluent of the POTW and that the POTW violated
       its permit limit for that pollutant.  Finally, as with inter-
       ference, violation of local limits applicable to the indirect
       discharger or deviations from the discharger's average pollutant
       loading would not by themselves be sufficient to prove pass
       through.  An enforcement agency would have to make in addition a
       demonstration of cause.  Nevertheless, departures from local  "
       limits or average discharge constituents might be useful as
       evidence of the POTW's acknowledged capacity to treat different
       kinds of pollutants.
                                \

            At this .time, there may not be effluent limits for toxic
       parameters in th'e NPDES permits of many POTWs.  EPA Regions, and
       States to whom the NPDES program has been delegated, should modify
       these permits when necessary.  If a toxic pollutant from an indus-
       trial discharger passes through a POTW and causes imminent and
      .substantial endangerment to health or livelihood, EPA may always
      .seek immediate relief under Section 504. of. the CWA, even if the
       POTW is not in violation of its permit.  State and local agencies.
       may have comparable authority under state laws.

-------

-------
                                                                  VLB. 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)


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re A
 '

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON, D.C.  20460
                          JUN 12 1985
MEMORANDUM
SUBJECT;
FROM:
TO:
Obtaining Approval of Remaining Local Pretreatment
Programs — Second Round Referrals of the Municipal
Pretreatment Enforcement Initiative/-)
                                          or Water
Courtney M. Price
Assistant Administrator for Enforcement
  and Compliance Monitoring
Henry L. Longest
Acting Assistant

Regional Counsels
Regions I-X
          Water Management Directors
          Regions I-X
     This memorandum announces EPA's agenda for obtaining
approved pretreatment programs for POTWs which have not yet
received necessary program approval*  The agenda includes a
plan and schedule for a second national round of enforcement
cases against POTWs which have failed to obtain approved
pretreatment programs, and a directive to modify permits of
POTWs where still necessary to require program approval and
implementation.                     . .                  .         .

     With referrals from Regions V and VI, the Agency recently
commenced the first round of the Municipal Pretreatment Enforcement
Initiative.  This nationally-coordinated enforcement effort
resulted in judicial enforcement actions being filed against
8 POTWs which had not met the requirement to obtain an approved
pretreatment program.  The Department of Justice filed these
cases in federal district courts on April 18.  Significant
progress has already been made toward satisfactory resolution
of these cases.

     The first round of the Municipal Pretreatment Enforcement
Initiative has assisted the Agency to achieve its pretreatment
goals of having all required pretreatment programs approved or
referred for judicial enforcement by September 30, 1985.  As of

-------
                              -2-
March 31, 1985, there were still 461 POTWs which had not
yet obtained an approved pretreatment program.  As you know,
the Agency has committed itself through the Strategic Planning
and Management System (SPMS) to have all required pretreatment
programs approved or referred for judicial enforcement by
September 30, 1985.  For this reason, we are undertaking a
second round of the Municipal Pretreatment Enforcement Initiative
to aid the Regions in meeting the FY-85 SPMS pretreatment
target.

     A list of those POTWs in your Region which do not yet
have an approved pretreatment program is attached to this
memorandum.  Generally, POTWs with unapproved pretreatment
programs have been in non-compliance with the regulation to
obtain an approved pretreatment program for nearly 2 years
—making "good progress" toward program approval is no longer
satisfactory in such cases.

     As we did in the first round of the Initiative, we should
continue to focus our enforcement efforts on those POTWs with
permits requiring the POTW to obtain pretreatment program
approval. (Categories I and II).  We urge all Regions to review
the attached list of noncomplying POTWs to identify for judicial
enforcement those municipalities, particularly larger ones,
that will not obtain an approved pretreatment proaram by the
end of FY-85.

     The attached list of municipalities with unapproved
pretreatment programs also includes POTWs whose permits do
not explicitly require them to obtain approved pretreatment
programs (Categories III and IV).  It should be noted that
as a general rule it is EPA legal policy to not refer for
judicial enforcement those POTWs in Categories III and IV.
We therefore expect each Region to have the compliance status
of these POTWs changed to Category I or II as soon as
possible.

     We request that you complete the attached "Pretreatment
Program Approval Status" form for each Category I and II POTW
in your Region.  Additionally, for Category III and IV POTWs,
provide a narrative description of the specific schedule
and steps your Region is taking to obtain necessary permit
modifications in delegated States, as well as in States where
EPA directly administers the permit program.  Please submit
your completed materials to William Jordan, Director, Enforcement
Division, Office of Water Enforcement and Permits (EN-338)
at Headquarters by June 28.  At that time you should also
submit any corrections to the list of unapproved programs which
accompanies this memorandum.  We will be considering making
public this updated list of POTWs with unapproved pretreatment
programs.                               .  .

-------
                                         -3-
                Case referrals to meet the FY-85 SPMS pretreatment target
           should be submitted to OECM by August 1, 1985.  It is unlikely
           that an enforcement action referred after that date against a
           POTW for failure to obtain an approved pretreatment program will
           be filed in the current fiscal year.  Regions which have approved
           all (Region X) or nearly all (Regions VII and IX) required
           pretreatment programs shoulc consider enforcement actions      •
           against those POTWs not properly implementing approved programs.

                Direct enforcement act:; on in delegated States should be
           taken consistent with the State/EPA Enforcement Agreement with
           each State.  Each Region she uld work with the delegated States
           to get them to address thei  POTWs.  In those cases where the
           State does not act or where EPA directly administers the program,
           each Region should be prepared to submit a referral for each
           POTW which is not on track to obtain program approval by the
           end of FY-85, or to explain the compelling circumstances which
           preclude such action.

                After your Region has identified those POTWs that are
           likely referral targets far the second wave of the Initiative,
           both Headquarters and the Department of Justice will again be
           available for consultation and assistance in preparing litigation
           reports and for expediting referrals and filings.  (OECM will
           make sample litigation reports available.)  For several Regions,
           the Office of Water Mid-Year Reviews provide an excellent
           opportunity to discuss possible enforcement targets for the
           second round.

                We must demonstrate that the Agency is committed to this
           goal on a national basis.  We realize that an effort such as this
           requires expedited schedules and intensive use of staff resources.
           However, we believe this effort is both worthwhile and necessary
           if we are to realize this Agency SPMS pretreatment target.
           We are confident that teamwork by the Regions, Headquarters
           and the Department of Justice will allow us to file the second
           round of cases during the month of September.

           Attachments

           cc:  Deputy Administrator
                Regional Administrators, Regions I-X
                Deputy Regional Administrators, Regions I-X
                General Counsel
                Director, Office of Water Enforcement
                  and .Permits
                Associate Enforcement Counsel
                  for Water
                Chief, Environmental Enforcement Section, DOJ
n „

-------

-------
                             AGENDA


         Municipal Pretreatment Enforcement Initiative

                          Second Wave
Regions to submit completed                         June 28
"Pretreatment Program Approval        -
Status" forms to HQ/OWEP
for Category I and II POTWs
Regions to submit referrals                         August 1
to HQ against POTWs for
failure-to-submit and/or
failure-to-implement
pretreatment programs
HQ/OECM to refer POTW
enforcement actions to DOJ           "               August 16
against non-complying POTWs
DOJ to file judicial                                September 16
enforcement actions
against non-complying POTWs
Regions to have approved                            September 30
all POTW pretreatment
programs or have referred
all non-complying POTWs

-------
                   PRETREATMENT PROGRAM APPROVAL STATUS
REGION
DATE FORM COMPLETED
                    REGIONAL CONTACT

                         FTS NUMBER
   POTW NAME
       DEFICIENT
    PROGRAM ELEMENTS*
(check, describe below)
REFERRAL
CANDIDATE
 AT THIS
  TIME
IF NOT REFERRING,
DESCRIBE REASONS
INCLUDE SCHEDULED
SUBMITTAL DATE,
APPROVAL DATE
                                       YES
                                       NO
                                       YES


                                       NO
                                       YES
                                       NO
                                       YES
                                       NO
                *KE-Y!
                     1 =  INDUSTRIAL WASTE SURVEY
                     2 »  LEGAL AUTHORITY
                     3 =  TECHNICAL ELEMENTS/LOCAL  LIMITS
                     4 •  COMPLIANCE MONITORING
                     5 =  PROCCDURES
                     6 =  RESOURCES

-------
       REGIONAL BREAKDOWN OF REMAINING POTWs WITH UNAPPROVED
                       PRETREATMENT PROGRAMS
CATEGORIES
  II
  III
  IV
                 KEY

POTWs with 1) unapproved pretreatment programs,
2) a modified NPDES permit requiring pretreatment
program submission, and 3) an EPA-issued adminis-
trative order requiring pretreatment program
submission.

POTWs with 1) unapproved pretreatment programs,
and 2) a modified NPDES permit requiring
pretreatment program submission but without an
EPA-issued administrative order requiring
pretreatment program submission.

POTWs with 1) unapproved pretreatment programs,
and 2) an EPA-issued administrative order requiring
pretreatment program submission, but without a
modified NPDES permit requiring pretreatment
program submission.

POTWs with unapproved pretreatment programs which
do not have 1) a modified NPDES permit requiring
pretreatment program submission, and 2) an EPA-
issued administrative order requiring pretreatment
program submission.
  PROGRAM
STATUS CODE

  N
Pretreatment program submission has been reviewed
and is not approvable in its present form because
portions of the program are incomplete or not
submitted.

Pretreatment program has been submitted, but
further review is required to determine whether
the submittal is complete and app.rovable for .  .
public notice.

Complete pretreatment program submission has been
reviewed and found acceptable for public notice.

Pretreatment prooran is on public notice.

-------
REGIONAL SUMMARY OF POTWs WITH UMAPPROVED PRETREATMENT PROGRAMS
                          MAY 7, 1985
CATEGORY
0 PROGRAM
STATUS
CODES
CATEGORY I
0 N
0 S
0 R
0 P
CATEGORY II
0 N
0 S
o R
0 P
CATEGORY III
0 N
0 S
0 R
0 P
CATEGORY IV
0 N
0 S
0 R
0 P
CATEGORY
UNKNOWN
0 N
0 S
0 R
0 P
TOTALS
0 N
o S
0 R
0 P

REGION

I
17
8
6
0
3
4
3
1
0
0
2
2
0
0
0
7
3
3
0
1
0
0
0
0
0
30 •
16
10
0
4

II
5
4
0
1
0
16
11
0
0
5
5
5
0
0
0
2
2
0
0
0
0
0
0
0
0
28
22
0
1
5

III
4
4
0
0
0
13
8
0
0
5
28
26
0
0
2
15
14
0
0
1
3
0
0
0
3
63
52
0
0
11

IV
2
0
2
0
0
21
12
1.
0
8
0
0
0
0
0
7
6
1
0
0
0
0
0
0
0
30
18
4
0
8

V
32
23
2
3
4
57
19
8
2
28
1
0
1
0
0
35
27
1
1
6
122
51
8
14
49
247
120
20
20
87

VI
19
12
0
3
4
2
1
1
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
21
13
1
3
4

VII
0
0
0
.0
0
1
0
1
0
0
0
0
0
0
0
1
0
1
0
0
0
0
0
0
0
2
0
2
0
0

VIII
14
0
14
. 0
0
10
0
10
0
0
0
0
0
0
0
3
2
1
0
0
8
0
0
0
8
35
2
25
0
8

IX
1
0
1
0
0
2
0
2
0
0
0
0
0
0
0
2
2
0
0
0
0
0
0
0
0
5
2
3
0
0

X
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0


TOTALS

94
51
25
7
11
126
54
24
2
46
36
33,
|^^
^^f
2
72
56
7
1
8"
133
51
8
14
60
461
245
65
- 24 '


-------
                                                                 VLB.15.
"Applicability of Categorical Pretreatment Standards to Industrial Users of
Non-Discharging POTWs", dated June 27, 1985.

-------

-------
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                   JM27
SUBJECT:  Applicability of Categorical Pretreatment Standards to
          Industrial Users of Non-Discharoing POTWs

FROM:     William P. Mamond, Chief
          Proaram Pevelopmont Branch '

TO:       Permit Branch Chiefs, Regions I-X
     At the recent National Branch Chiefs Meeting, a question
raised recardinq the applicability of categorical pretreatment
standards promulgated by EPA pursuant to section 307(b) of the
Clean Hater Act ("CWA") to industrial facilities sending their
wastewaters to POTWs that do not discharge to vaters of the
United States (hereafter referred to as "non-discharging POTWs").
Because there is no "discharge of pollutants" (as defined in
section 502(12) of the CWA) frow these POTWs, they are not
required to obtain NPDES permits? nor are they subject to the
requirement, in section 402(b)(8) of the CWA, to develop a
local pretreatnent program, since this requirement is tied to
the existence of an NPDES nermit.  As explained below, however,
industrial users discharging into these POTWs must nonetheless
comply with applicable categorical pretreatwent standards.
This memorandum also discusses how these-industrial users can be
regulated in the absence of a federally required local pretreatment
program.

     QadNUft th« CWfc, categorical pretreatment standards apoly to
industrial ttftwn. of*all POTWs, including those that do not discharge
to wat«r»of th* United States.  Section 307(b) of the Act directs
PPA to premlf«t4. pretreatment standards "to prevent the discharge
of any pollutant through treatment works (as defined in section
212 of this Act) which are publicly owned, which pollutant inter-
feres with, passes through, or otherwise is incompatible with such
works."  The definition of "treatment works" in section 212 of the
CWA is not limited to facilities that discharge into waters of the

-------
                              - 2 -
United St«t*ir and In fact Bakes explicit reference to land-baaed
system* (see f212(2)(M).  Moreover, the statutory ooal of
preventinginterference with the treatment works, which includes
protection of the resulting sludge from contamination that would
limit disnosal alternatives,  / is applicable to all POTWs,
regardless of whether there is any discharge to waters of the
United States.

     Because non-discharqinq POTWs are not NPDES permittees and
therefore are not required to develop pretreatment proorams, the
primary responsibility for enforcing pretreatment requirements
in these cases falls upon those States with approved pretreatment
programs and EPA*  Since these POTWs do not hold NPDES permits,
EPA enforcement is limited to direct enforcement of categorical
standards against the industrial users* **/  Of course, the fact
that federal law does not require non-discharging POTWs to develop
pretreatment programs does not prevent States from reguirina these
facilities to develop such programs under State law.  **/  Moreover,
even where State law does not require them to do so, individual
non-discharging POTWs may agree to develop pretreatment
In any of these cases, the developed programs may provide for
enforcement of categorical standards by the POTW.  ****/  However«
it must be noted that because these POTWs are not NPDES permitt****
RPA cannot enforce any requirements of their programs.  Thus, if
a non-discharginq POTW whose pretreatment nrogram involves enforce-
ment of categorical standards does a poor job of enforcing
these standards, EPA's only recourse is to take direct action
against the violating industrial user(s).
V  See the discussion of sludge contamination as "interference"
under the CWA in the preamble to the General Pretreatnent
Regulations at 46 Fed. Reg. 9408 (January 28, 1981).

**/  Althouoh EPA nay not issue permits to indirect dischargers,
the Agency may require them to comply with additional reporting,
monitoring, sampling, and other information reauireraents beyond
those contained in the General Pretreatment Reoulations, under
section 30S of th* CWA.  See Conf. Pep. No. 92-1236, 92d Cong.,
2d Sea*,  130 (September 28, 1972), reprinted in A Legislative
History- of th* Water Pollution Control Act Amendments of 1972,
volxme 1 at 313.

**•/  for example, California has a regulatory provision that
requires non-discharqinq POTWs with a design flow of 5 mgd or
more to develop'pretreatment proqrams.  Facilities with a design
flow of less than 5 mgd may be required to develop programs as
deemed appropriate.  23 CAC $2233.

•***/  m California, for instance, these proarams are reviewed
for consistency with $403.8(f) of the General Pretreatment
Regulations, which  includes  a  requirement  regarding  enforcement
of categorical standards.      .

-------
     I hope this memorandum answers your questions on this subject.
If you have any further questions or comments, please call me at
(PTS) 426-4793 or have your staff contact Hans Bjornson at (PTS)
426-703S.

cci  Rebecca Hanaer
     Martha Prothro
     Colburn Cherney
bcc:  Jim Gallup
      Geoff Grubbs
      Program Development Branch


HBJORNSON/Disk l/EN-336/67035
Document 36/lrm/06-26-85

-------

-------
                                                                  VLB.16,
"Guidance Manual for Preparation and Review of Removal Credit
Applications", dated July 1985. Table of Contents only.

-------

-------
United Stalls
Environmental Protection
Agency
Permits Division EN-336
Washington, DC 20460
July 198S
Weter
Guidance Manual for
Preparation and Review
of Removal
Credit Applications

-------
c

-------
 Table  of  Contents

                                                                    Page

 1.   INTRODUCTION	   1-1

 :.   BACKGROUND	   2-1

 •>ART I:  GUIDANCE FOR DEVELOPING  A REMOVAL  CREDITS APPLICATION

 ;.   REMOVAL  CREDIT APPLICATION REQUIREMENTS	   3-1

     3.1   LIST OF POLLUTANTS	   3-5

          3.1.1  Total Metals	   3-5
          3.1.2  Total Toxic Organics	   3-6
          3.1.3  Surrogate  or  Indicator  Pollutants	   3-7

     3.2   CONSISTENT REMOVAL DATA	   3-7

          3.2.1  Limits of  Detection	*	   3-8
          3.2.2  Alternatives  to  Pollutant  Concentrations  Below
                 Detectable Limits	   3-10
          3.2.3  Lowering of the  Consistent Removal  Rate
                 After Approval.	   3-11

     3.3   CALCULATION OF REVISED  DISCHARGE  LIMITS	   3-12

          3.3.1  Evaluation of Removal Credit  Effects  on  the
                 Treatment  Plant  Influent Pollutant  Load
                 (i.e., Local  Limits)	   3-12

                 3.3.1.1 Calculation of Maximum Allowable  Plant
                         Influent Load	   3-13
                 3.3.1.2 Comparison of  Maximum Allowable  Loading
                         to Projected Loading with  Removal Credits.   3-14

          3.3.2  Multiple Treatment Plants	   3-15

     3.4   LOCAL PRETREATMENT PROGRAM CERTIFICATION	   3-23
     3.5   SLUDGE MANAGEMENT CERTIFICATION	   3-23
     3.6   NPDES PERMIT LIMIT CERTIFICATION	   3-28

          3.6.1  NPDES Compliance Demonstration...	   3-30

4*   ALTERNATIVE PROCEDURES AVAILABLE TO SATISFY APPLICATION
     REQUIREMENTS	   4-1

     4.1   USE OF HISTORICAL DATA  FOR POTW REMOVALS	'... ..   4-1
     4.2   USE OF ALTERNATIVE SAMPLING DESIGNS	   4-3
     4.3   USE OF TREATABILITY  STUDIES OR REMOVAL DATA  FROM
          SIMILAR TREATMENT PLANTS TO DEMONSTRATE REMOVAL.	   4-4

          4.3.1  Treatability  Studies......... i,	   4-4
          4.3.2  Transfer of Data From Similar POTWs	   4-5
                                                                                  L.

-------
 Table of Contents (Continued)
                                                                    Faze
'5.   SAMPLING AND ANALYTICAL REQUIREMENTS.	   5-1

     5.1  SAMPLING METHODS	   5-1
     5.2  ANALYTICAL METHODS	   5-3

 PART II:  GUIDANCE FOR THE APPROVAL AUTHORITY

 6.   REVIEW OF REMOVAL CREDIT APPLICATIONS	   6-1

     6.1  GENERAL	   6-1
     6.2  PROCEDURAL REQUIREMENTS	   6-2
     6.3  CONSISTENT REMOVAL RATE	   6-2
     6.4  SLUDGE MANAGEMENT CERTIFICATION	   6-6
     6.5  NPDES PERMIT CERTIFICATION	   6-8
     6.6  NPOES PERMIT MODIFICATIONS	   6-9
     6.7  REVIEW OF POTW PROPOSALS TO USE ALTERNATE METHODS OF
          DEMONSTRATING CONSISTENT REMOVAL...	   6-10

          6.7.1  Proposals to Vary the Sampling and Analysis Plan
                 And Use of Historical Data	   6.-11
          6.7.2  Proposals to Demonstrate Consistent Removal by
                 Methods other than Influent and Effluent Sampling..   6-12

     6.8  ADDITIONAL CONSIDERATIONS FOR REVIEWING APPLICATIONS
          OF POTWs WITH 301 (h) WAIVERS	   6-13

 7.   MODIFICATION OR WITHDRAWAL OF REMOVAL CREDITS	   7-1

     7.1  POTW MONITORING AND REPORTING FREQUENCY.	   7-2
     7.2  CRITERIA	   7-3
     7.3  PROCEDURES AND SCHEDULE	   7-4
                                  APPENDICES

 A  -  REMOVAL CREDIT PROVISION FINAL RULE

 B  -  DETECTION LEVELS FOR PRIORITY POLLUTANTS

 C  -  MODEL REMOVAL CREDIT APPLICATION

 D  -  SAMPLE NPDES PERMIT MODIFICATION LANGUAGE FOR
       REMOVAL CREDITS

-------
List of Tables
Table

3.1
      THRESHOLD CONCENTRATIONS OF TOXIC POLLUTANTS THAT COULD
      INHIBIT BIOLOGICAL TREATMENT PROCESSES
3.2   WATER QUALITY CRITERIA

3.3   BIBLIOGRAPHY

6.1   SUMMARY OF MINIMUM PERCENT REMOVALS ACHIEVED BY
      SECONDARY TREATMENT                            .

6.2   MAJOR FEDERAL REGULATIONS RELATING TO SEWAGE SLUDGE DISPOSAL
Page


3-32

3-35

3-41


6-4

6-7

-------

-------
                                                                 VLB.17.
"Local Limits Requirements for POTW Pretreatment Programs", dated August 5,
1985.

-------

-------
.'*oiv
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON. D.C. 20460
                           •AUG"'51985
                                                          WATER
   MEMORANDUM
   SUBJECT;  I^ocal Limits Requirements for POTW
           /Pretreatment Programs

   FROM:     Rebecca W. Hanmer, Director
             Office of Water Enforcement and Permits (EN-335)

   TO:       Regional Water Management Division Directors
             NPDES State Directors
   I.  Background

        The Pretreatment Implementation Review Task Force (PIRT),  in
   its Final Report of January 30, 1985,  stated that some POTWs which
   are required to implement pretreatment programs "do not understand
   the relationship between categorical standards and local limits or
   even how to develop local limits."  This memo reviews the Agency's
   minimum local limits requirements for POTWs which must develop  and
   implement industrial pretreatment programs.  More detailed technical
   guidance for developing local limits is available in the Guidance
   Manual for POTW Pretreatment Program Development.  Comprehensive
   technical guidance on local limits is under development and will
   be published in FY 86.

        Section 403.5(c) of the General Pretreatment Regulations
   provides that POTWs required to establish local pretreatment
   programs must develop and enforce specific limits to implement
   the general prohibitions against pass-through and interference
   [§403.5(a)] and the specific prohibitions listed in §403.5(b).
   This requirement is discussed in the preamble to the 1981 General
   Pretreatment Regulations:

        "These limits are developed initially as a prerequisite
        to POTW pretreatment program approval and are updated
        thereafter as necessary to reflect changing conditions
        at the POTW.  The limits may be developed on a pollutant
        or industry basis and may be included in a municipal
        ordinance which is applied to the affected classes.  In

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                              - 2 -
     addition, or alternatively, the POTW may develop specific
     limits for each individual facility and incorporate these
     limits in the facility's municipally-issued permit or
     contract.  By translating the regulations' general
     prohibitions into specific limits for Industrial Users,
     the POTW will ensure that the users are given a clear
     standard to which they are to conform."

     The categorical pretreatment standards, applicable to broad
classes of industries, are technology-based minimum requirements
which do not necessarily address all industrial discharge problems
which might occur at a given POTW.  To prevent these site-specific
problems, each POTW must assess all of its industrial discharges
and employ sound technical procedures to develop defensible local
limits which will assure that the POTW, its personnel, and the
environment are adequately protected.  This memorandum clarifies
EPA's minimum requirements for the development of local limits
to control the discharges of industrial users and discusses the
application of those requirements to POTWs in different stages of
local pretreatment program development and implementation.

II.  Minimum Requirements for Local Limits

     The General Pretreatment Regulations require every POTW
developing a pretreatment program to conduct an industrial waste
survey to locate and identify all industrial- users which might be
subject to the POTW pretreatment program.  This procedure is a
prerequisite to pretreatment program approval.  In addition, the
POTW must determine the character and volume of pollutants contri-
buted to the POTW by these industrial users.  Based on the infor-
mation obtained from the industrial waste survey and other sources,
including influent, effluent and sludge sampling, the POTW must
determine which of these pollutants (if any) have a reasonable
potential for pass-through, interference or sludge contamination.
For each of these pollutants of concern, the POTW must determine,
using the best information available, the maximum loading which
can be accepted by the treatment facility without the occurrence
of pass-through, interference or sludge contamination.  A proce-
dure for performing- this analysis is provided in the Guidance
Manual for POTW Pretreatment Program Development.  As a minimum,
each POTW must conduct this technical evaluation to determine
the maximum allowable treatment plant headworks (influent)
loading for the following pollutants:

             cadmium                       lead
             chromium                      nickel   .            .  .
             copper                        zinc

     These "six toxic metals are listed because of their widespread
occurrence in POTW influents and effluents in concentrations that
warrant concern.  Also, since ttiey are usually associated with
•the suspended solids in the waste stream, their presence often

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                                                . I  I

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prohibits the beneficial reuse of municipal sewage sludge and
reduces POTW options for safe sludge disposal.  In addition,
based on site-specific information, the POTW and/or the Approval
Authority must identify other pollutants of concern which might
reasonably be expected to be discharged to the POTW in quantities
which could pass through or interfere with the POTW, contaminate
the sludge, or jeopardize POTW worker health or safety.  Once
maximum allowable headworks loadings are determined for each of
the pollutants of concern, the POTW must implement a system of
local limits to assure that these loadings will not be exceeded.
The POTW may choose to implement its local limits in any of a
number of ways, such as uniform maximum allowable concentrations
applied to all significant industrial dischargers, or maximum
mass discharge limits on certain major dischargers.  The method
of control is the option of the POTW, so long as the method
selected accomplishes the required objectives.  There is no
single method of setting local limits which is best in all
situations.  The Guidance Manual for POTW Pretreatment Program
Development discusses several alternative methods which a POTW
might use to allocate the acceptable pollutant load to industrial
users.  The manual also provides an example of the calculations
a typical POTW would use to determine the maximum allowable
headworks loadings for a pollutant and to allocate that load to  -
significant industrial users.  POTWs are strongly encouraged to
apply a safety factor to the calculated maximum allowable loadings
and to reserve some capacity for industrial expansion when setting
local limits.

     Some POTWs may find that loading levels of at least some of
the pollutants of concern are far below the calculated maximum
allowable headworks loadings.  In these cases, the POTW should
continue to monitor all industrial users discharging significant
quantities'of these pollutants.  It may also be appropriate for
the POTW to limit each significant industrial user to a maximum
loading which cannot be exceeded without POTW approval.  This
process of limiting increases in discharges of pollutants.of
concern provides POTWs with a control mechanism without imposing
unnecessarily stringent limits on industries which expand or
change production processes.  Industries approaching their limits
could petition the POTW for an increased allowance.  Upon receipt
of such request,  the POTW would update its headworks loading
analysis to determine the effect of the proposed increase.   The
analysis would enable the POTW to make a sound technical decision
on the request.

     Because they are based on the specific requirements of the
POTW,  sound local limits can significantly enhance the enforce-
ability of a POTW-'s local pretreatment program.  A POTW that
proposes to rely solely upon the application of the specific
prohibitions listed in §403.5(b) and categorical pretreatment
standards in lieu of numerical local limits should demonstrate
in its program submission that (1) it has determined the

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                              - 4 -
capability of the treatment facility to accept the  industrial
pollutants of concern, (2) it has adequate resources and proce-
dures for monitoring and enforcing compliance with  these require-
ments, and (3) full compliance with the applicable  categorical
standards will meet the objectives of the pretreatment program.

III.  Application of the Minimum Local Limits Requirement

A.  Unapproved Programs
         POTWs required to develop pretreatment programs must
comply with the regulatory local limits requirements described
above.  However, EPA recognizes that there has been a need for
clarification of these requirements and that some Approval
Authorities have not applied this requirement in accordance
with the principles in this memorandum when approving local
pretreatment programs in the past.  Some POTWs with local
programs now under development or review were given direction
by their \pproval Authority that may have failed to reflect all
of the requirements for local limits that are discussed herein.
Withholding approval for these POTWs until they have adopted
all necessary local limits would delay availability of the
considerable local POTW resources needed to enforce categorical
pretreatment standards and other pretreatment requirements.
Therefore, where POTWs have not previously been advised of the
need to complete the analysis described herein and to adopt
local limits orior to program approval, and where imposing
such a requirement would make approval by September 30, 1985
infeasible, POTW pretreatment program submissions meeting all
other regulatory requirements may be approved.  However, in any
such case, the POTW permit must be modified to require that the
POTW expeditiously determine the maximum allowable headwords
loading for all pollutants of concern as described above and
adopt those local limits required to prevent pass-through,
interference, and sludge contamination.  To ensure that this
condition is enforceable, the Approval Authority must assure
that this requirement is promptly incorporated into the POTW's
NPDES permit and require that the appropriate local limits be
adopted as soon as possible, but in no case later than one
year after approval.  Noncompliance with this permit require-
ment on the part of the POTW will be considered grounds for
bringing an enforcement action for failure to implement a
required pretreatment program.

B.  Approved Programs

     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 immediately require
the POTW to initiate an analysis as described above and 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 limits are based on sound technical analysis, the Approval

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                              -  5  -
 Authority should require the POTW to demonstrate  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  required to revise those limits within a specific time set
 forth in a  permit modification.

 IV.  Local  Limits to Control Additional Toxic Pollutants

      To date, where POTWs have evaluated their industrial
 discharges  and adopted local limits as needed based on that
 evaluation, the pollutants most often controlled  are toxic metals,
 cyanide and phenol.  Few POTWs now control the discharge of
 toxic organic compounds through local limits.  Recent studies,
 including the Agency's Complex Effluent Toxicity  Testing Program,
 indicate that these substances are often responsible for toxicity
 problems in receiving streams.  Furthermore, many of the volatile
 organic compounds in POTW influents may be released to the atmos-
 phere during conveyance or treatment, potentially causing health
 or  safety hazards or aggravating air quality problems.  Compounds
 causing these problems are not necessarily among  those in the
 statutory list of 126 priority toxic pollutants and may not be
 addressed by existing or proposed categorical standards.  .If
 monitoring  efforts are not sufficiently comprehensive, these
 adverse impacts may go undiscovered, or their root causes may
 not be  identified.

     After  a POTW1s pretreatment program has been approved,
 Approval Authorities should continue to evaluate  each POTW to
determine the need for additional measures to control toxic
discharges  from industrial users.  This is in keeping with the
Agency's policy on water quality-based permit limits for toxic
pollutants  (49 FR 9016, March 9, 1984).  Utilizing the authority
provided by Section 308 of the Clean water Act (or comparable
State authority), the Approval Authority should consider requiring
both chemical-specific and biological testing of  POTW influent,
effluent and sludge to evaluate the need for additional local
limits.  Where test results indicate a need for greater industrial
user control, POTWs should be required to determine the sources
of the toxic discharges through additional testing and to adopt
appropriate local limits which will prevent interference and
pass-through.

     Not every POTW required to have a local pretreatment program
will need to perform this additional testing., but since toxic
chemicals are utilized by many non-categorical industries, this
requirement should not be limited to those POTWs  with large
contributions from categorical industries.  For example, there
is at least one documented instance of an FDA-approved food addi-
tive, discharged by a food processor to a POTW, causing receiving
stream toxicity problems.  OWEP has been working  closely with
EPA researchers and will provide whatever assistance we can to
Approval Authorities faced with complex toxicity  problems
associated with POTW discharges.           -

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                              - 6 -
V.  Local Limits Requirements for POTWs covered by §403.10(e):
    State-run Pretreatment Programs

     In accordance with §403.10(e) of the General Pretreatment
Regulations, some States have assumed responsibility for imple-
menting State-wide pretreatment programs in lieu of requiring
POTWs to develop individual local programs.  In these States,
the NPDES permits of POTWs which otherwise would have been
required to develop local pretreatment programs may need to be
modified to require the local limits development procedures
described above.  Alternatively! the State can perform the
required analyses and implement the appropriate local limits
necessary to assure that the goals of the program are achieved.
These limits would then be enforced in the same manner as other
pretreatment requirements, in accordance with procedures included
in the approved State-run program.  Where States assume POTW
responsibility for carrying out pretreatment program requirements,
Regional Offices must monitor all aspects of the State-run
pretreatment program, including local limits, to assure that the
national program requirements are met.

VI.  Control ofConventional Pollutants

     Although the National Pretreatment Program is usually
associated with the control of toxic industrial wastes, the
discharge of excessive conventional pollutants has been the most
commonly documented industry-related cause of POTW effluent  limit
violations.  Generally, POTWs are required to construct, operate
and maintain their own treatment facilities at efficiencies ade-
quate to prevent pass-through and interference from conventional
oollutants.  However, where a POTW chooses instead to limit  its
influent or where limits on the influent concentrations are
necessary to assure that unexpectedly high influent concentrations
do not occur, the POTW pretreatment program submission should
demonstrate that local limits adequately address conventional
pollutant loadings from industry.  Most POTWs have already deter-
mined the capacity of their treatment facilities to accommodate
conventional pollutants.  Where local limits for these pollutants
are needed, the limit-setting process is rather straightforward.
At a minimum, Approval Authorities should encourage all POTWs
to consider setting appropriate local limits on conventional
pollutants in order to prevent pass-through and interference
where problems have occurred in the past or can be anticipated
in the future due to local growth or increases in  industry
discharges.

VII. .Deadline for Industrial User Compliance with Local Limits

     POTWs adopting local limits should require industrial users
to comply with those limits as soon as is reasonable, but in no
case more than three years from the date of adoption.  Where an
•industrial user is allowed more than one year to comply, the POTW

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                              - 7 -
should evaluate the industrial user's operation and set interim
limits to minimize discharge of the pollutants of concern prior
to full compliance with the local limit.  The POTW should also
establish enforceable in-crements of progress for industrial users
with compliance schedules longer than one year and require the
users to submit incremental progress reports at least annually
to assure proper tracking of actions needed to accomplish
compliance.

     Where an industrial discharge has been identified as a
contributing factor in a POTW's violation of an NPDES permit
limit, water quality standard, or other environmental require-
ment, the POTW must take immediate enforcement action, employing
all means necessary to assure that the Industrial User is brought
into compliance in the shortest possible time.

VIII.  Conclusion

    .This memorandum has summarized the Agency's minimum
requirements for the establishment of local limits by POTWs
implementing pretreatment programs.  Because local limits
address site-specific needs, Approval Authorities should apply
these requirements with sensitivity to local conditions, recog-
nizing that the diversity among POTWs requires a .case-by-case
consideration of local limits.  In Tiany cases, there will be a
clear need to aggressively attack toxicity or interference
problems with extensive analysis and local regulation.  In
others, only a few local limits will be needed, if only to
insure that present loadings do not increase.  This flexibility,
however, does not mean that local limits are optional under the
National Pretreatment Program.  All POTWs implementing pretreat-
raent programs must evaluate the need for local limits.  Where
the evaluation so indicates, the POTW must promptly adopt and
enforce local limits which will protect against interference,
pass-through and sludge contamination.

     As EPA and State permit writers establish more comprehensive
water quality-based municipal permit limits {including toxics),
POTWs will have more definitive information available as a basis
for establishing the need for and the' stringency of local limits
to prevent pass-through.  Similarly, the forthcoming sludge
disposal and reuse regulations should enable States to establish
fnore comprehensive sludge quality requirements, which will in turn
provide a solid technical basis for local limits to prevent
sludge contamination.  The Office of Watar Enforcement and Permits
is also working with the Agency's Office of Research and Develop-
ment to obtain better information on the impact of toxic substances
on municipal treatment processes.  These efforts are proceeding
as fast as available resources permit and should produce results,
in the form of guidance documents, in FY. 86.

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                                                                 VLB.18.
"Guidance Manual for Iron and Steel Manufacturing Pretreatment Standards,"
dated September 1985.  Table of Contents only.

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 United States
 Environmental Protection
 Agency
Industrial Technology Division
WH-552
Washington. DC 20460
September 1985
Water
             Manual
for
Iron and Steel  Manufacturing
Pretreatment  Standards

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                            TABLE OF CONTENTS


Chapter
                                                                    Page

1.  IWrRODUCTION	  1-1

    1.1  HISTORY OF THE IRON AND STEEL MANUFACTURING CATEGORICAL
         PRETREATM2NT STANDARDS	  1.2

2.  IRON AND STEEL CATEGORICAL PRETRBATMSNT STANDARDS (40 CFR
    PART 420)	  2.1

    2.1  AFFECTED INDUSTRY	  2-1
    2.2  PRETREATMSNT STANDARDS FOR THE IRON AND STEEL MANUFAC-
         TURING CATEGORY	  2-1
    2.3  RELATIONSHIP TO ELETROPLATING AND MSTAL FINISHING	  2-21
    2.4  POLLUTANTS EXCLUDED FROM REGULATION	  2-21
    2.5  COMPLIANCE DATES	  2-21

3.  TFEATM3NT TECHNOLOGIES.	  3-1

    3.1  TREATMENT OF COKEMAKING WASTES	  3-1
  •  3.2  TREATMENT OF SINTERING WASTES	  3-2
    3.3  TREATMENT OF IRONMAKING WASTES	  3-2
    3.4  TREATMENT OF STEELMAKING WASTES	  3-3
    3.5  TREATMENT OF VACUUM D3GASSING WASTES	  3-4
    3.6  TREATMENT OF CONTINUOUS CASTING WASTES	  3-4
    3.7  TREATMENT OF HOT FORMING WASTES	  3.5
    3.8  TREATMENT OF SALT BATH D3SCALING WASTES.	  3.6
    3.9  TREATMENT OF ACID PICKLING WASTES	  3.7
    3.10 TREATMENT OF COLD ROLLING WASTES	  3.7
    3.11 TREATMENT OF ALKALINE CLEANING WASTES	  3.8
    3.12 TREATMENT OF HOT COATING WASTES	  3-8

4.  REQUIREMENTS OF THE GENERAL PRETREATMENT REGULATIONS..	  4.1

    4.1  INTRODUCTION....	  4-1
    4.2  CATEGORY DETERMINATION REQUEST	  4-2
    4.3  MONITORING AND REPORTING REQUIREMENTS OF THE GENERAL
         PRETREATMENT REGULATIONS	  4-2

         4.3.1  Baseline Monitoring Reports.	'	
         4.3.2  Report on Compliance	
         4.3.3  Periodic Reports and Continued Compliance	  4-4
         4.3.4  Notice of Slug Loading....	
         4.3.5  Monitoring and Analysis to Demonstrate
                  Continued Compliance	
         4.3.6  Signatory Requirements for Industrial Users
                  Reports	  4"5
         4.3.7  Recordkeeping Requirements..	.••••	  *~^

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                                  TABLE OF CONTENTS  (Continued)
            Chapter

                 4.4  APPLICATIONS OF THE COMBINED WASTESTREAM FORMULA
Page

4-6

4-7
                      4.4.1  CNF Conditions	
                      4.4.2  Monitoring Requirements for Industrial Users
                             usinQ the CWF.».*•*•...•.•••••••••*...•••••*••••   4—7
                      4.4.3  Application oC the CWF	   4-7

                 4.5  REMOVAL CREDITS	   4-11
                 4.6  FUNDAMENTALLY DIFFERENT FACTORS VARIANCE. .,	   4-12
                 4.7  LOCAL LIMITS	...   4-12
                 REFERENCES.
R-l
                                                  ii
sv
• v-

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                                LIST OF TABLES






Table                              .                .                  Page




2.1  PRETREATMENT STANDARDS FOR EXISTING SOURCES (PSES)	  2-9




2.2  PRETREATMENT STANDARDS FOR NEW SOURCES (PSNS)	  2-15




2.3  POLLUTANTS EXCLUDED FROM IRON AND STEEL REGULATION	  2-22




4.1  COMBINED WASTESTREAM FORMULA	  4-8




4.2  COMBINED WASTESTREAM FORMULA EXAMPLE CALCULATION	  4-9

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                                                                 VLB.19.
"Guidance Manual for the Use of Production-Based Pretreatment Standards and
the Combined Wastestream Formula", dated September 1985.  Table of Contents
only.
                                                                       1*651

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United State*
Environmental Protection
Agency
Permits Division and
Industrial Technology Division
Washington. DC 20460
September 1985
Water
Guidance Manual
for the Use of
Production-Based
Pretreatment Standards
and the Combined
Wastestream Formula

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                              TABLE OF CONTENTS
                                                                      Page

1.   INTRODUCTION	   1-1

     1.1  PURPOSE OP GUIDANCE MANUAL	   1-1
     1.2  BACKGROUND	   1-1

          1.2.1  Purpose of Categorical Pretreatment Standards	   1-2
          1.2.2  Development of Categorical Pretreatment
                 Standards	   1-2

2.   USE OF PRODUCTION-BASED CATEGORICAL PRETREATMENT STANDARDS	   2-1

     2.1  INTRODUCTION	   2-1

     2.2  USE OF EQUIVALENT MASS LIMITS	   2-1

     2.3  USE OF EQUIVALENT CONCENTRATION LIMITS	   2-3

     2.4  OBTAINING AND VERIFYING PRODUCTION AND FLOW INFORMATION...   2-5

     2.5  PROHIBITION AGAINST DILUTION TO ACHIEVE COMPLIANCE	   2-6

     2.6  USE OF PRODUCTION-BASED STANDARDS WITH A PERMIT SYSTEM....   2-7

     2.7  DETERMINING AN APPROPRIATE PRODUCTION RATE FOR USE IN
          DEVELOPING EQUIVALENT LIMITS	   2-8

          2.7.1  Background	   2-8
          2.7.2  Use of Historical Data	   2-10
          2.7.3  Determining a Production Basis Without Historical
                 Data	   2-13

     2.8  DETERMINING AN APPROPRIATE FLOW RATE FOR USE IN
          DEVELOPING EQUIVALENT LIMITS	   2-14

          2.8.1  Flow Measurement and Flow Estimation	   2-15

     2.9  CHANGES IN PRODUCTION AND FLOW RATES	   2-17

          2.9.1  Changes in Production Rate	•.	   2-18
          2.9.2  Changes in Flow Rate....	   2-19
          2.9.3  Tiered Permits	   2-19

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J.   USE OF THE COMBINED WASTESTREAM FORMULA	   3-1

     3.1  PURPOSE OF THE COMBINED WASTESTREAM FORMULA	   3-1
     3.2  DEFINITION OF CWF TERMS	   3-2
     3.3  APPLICABILITY OF THE CWF	   3-4
     3.4  IMPLEMENTATION OF THE CWF	   3-6

          3.4.1  Combined Wastestream Formulas	   3-6

                 3.4.1.1  Alternative Concentration Limit
                          Formula	   3-6
                 3.4.1.2  Alternative Mass Limit Formula	   3-7
                 3.4.1.3  Consistency When Combining Categorical
                          Standards	,..   3-8

           3.4.2  Conditions for Using the CWF	   3-9
           3.4.3  Implementation of the CWF	   3-11

                  3.4.3.1  IU Responsibilities	   3-13

           3.4.4  Example Use of the CWF	   3-14

                  3.4.4.1  Example 1 - Simple Example of Combined
                           Wastestream Formula Calculations With
                           Concentration Limits	   3-14
                  3.4.4.2  Example 2 - More Complex Combined
                           Wastestream Formula Example Calculations
                           with Concentration and Mass Limits	   3-15
                  3.4.4.3  Example 3 - Above  Combined Wastestream
                           Formula Calculations with Concentration
                           Limits for Cyanide	   3-16
                  3.4.4.4  Example 4 - Combined Wastestream Formula
                           Example Calculations Using Concentration
                           and Mass Limits	   3-17
                  3.4.4.5  Example 5 - Combined Wastestream Formula
                           for an Integrated  Facility	   3-20

           3.4.5  Comparison of Local Limits  and Categorical
                  Standards	   3-28

                  3.4.5.1  Example - Integrated Facility Calculations
                           Comparing Categorical Standards and Local
                           Limits	  3-29
APPENDIX A     PUBLICATIONS AVAILABLE FROM THE GOVERNMENT PRINTING OFFICE
               (GPO) AND/OR THE NATIONAL TECHNICAL INFORMATION SERVICE (NTIS)

APPENDIX B   .  STATUS OF CATEGORICAL PRETREATMENT STANDARDS

APPENDIX C     FLOW MEASUREMENT REFERENCES

APPENDIX D     COPPER FORMING CATEGORICAL PRETREATMENT STANDARDS - SUBPARTS  -
               UTILIZED IN EXAMPLES

APPENDIX E     PORTION OF NPDES PERMIT APPLICATION REQUESTING PRODUCTION AND
               FLOW INFORMATION
                                      ii

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                                LIST OF TABLES
•-1  EPA ESTIMATES OF  POLLUTANT DISCHARGE  RATES ACHIEVABLE
     WITH AND WITHOUT  FLOW REDUCTION AS  PART OF TREATMENT
     TECHNOLOGY

•>-!  COMPARISON OF TYPES OF  PRETREATMENT STANDARDS FOR
     CATEGORICAL  INDUSTRIES

1-2  APPLICATION  OF PRODUCTION-BASED STANDARDS

2-3  COMPARISON OF PRODUCTION QUANTITIES SPECIFIED IN PRODUCTION-
     BASED CATEGORICAL PRETREATMENT STANDARDS
                                                                       1-4


                                                                       2-2

                                                                       2-4


                                                                       2-9
                                LIST OF FIGURES
Figure

2.1  TIERED APPROACH TO USING EQUIVALENT MASS LIMITS

3.1  APPLICABILITY OF THE COMBINED WASTESTREAM FORMULA

3.2  TYPICAL PORCELAIN ENAMELING ON STEEL OPERATION

3.3  PROCESS FLOW SCHEMATIC FOR EXAMPLE IU

3.4  EXAMPLE IU WASTEWATER FLOW DIAGRAM

3.5  EXAMPLE FLOW SCHEMATIC OF EXAMPLE INTEGRATED
     FACILITY CATEGORICAL IU
                                                                      Page

                                                                       2-22

                                                                       3-5 ,

                                                                       3-12

                                                                       3-21

                                                                       3-22


                                                                       3-30
                                     iii

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                                                                 VLB.20.
"Guidance Manual for Implementation of Total Toxic Organics (TTO)
Pretreatment Standards", dated September 1985. Table of Contents only.

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'Jailed SlatM
Environmental Protection
Agency
Permits. Division £f J-328
Washington, OC 20460
Water
            jVianuai
for Implementing
Total Toxic Organics ITTO)

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IflfcZ

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                       TABLE OP CONTENTS
 1.   INTRODUCTION
     1.1. DEFINITION OF TTO	   1-2
     1.2. GENERAL ORGANIZATION 	   1-2
     1.3. LIMITATIONS OF THIS MANUAL	   1-3

 2.   REPORTING REQUIREMENTS
     2.1. BASELINE MONITORING REPORT	   2-1
     2,2. PROGRESS REPORTS 	   2-3
     2.3. 90-DAY COMPLIANCE REPORT  	   2-3
     2.4. INDUSTRIAL USER SEMI-ANNUAL COMPLIANCE REPORT  	   2-3

 3.   INDUSTRIAL CATEGORIES WITH TTO REQUIREMENTS
     3.1. ELECTROPLATING AND METAL FINISHING
         3.1.1. TTO Limits	   3-1
         3.1.2. Alternative to TTO Monitoring	   3-2
         3.1.3. Sources of Toxic Organics	   3-3
     3.2. ELECTRICAL AND ELECTRONIC COMPONENTS
          (PHASES I AND II)                                      »
         3.2.1. TTO Limits	   3-4
         3.2.2. Alternative t.o TTO Monitoring  	   3-5
         3.2.3'. Sources of Toxic Organics	   3-6
     3.3. COPPER FORMING
         3.3.1. TTO Limits	   3-6
         3.3.2. Alternative to TTO Monitoring  	   3-8
         3.3.3. Sources of Toxic Organics	   3-8
     3.4. ALUMINUM FORMING
         3.4.1. TTO Limits	   3-8
         3.4.2. Alternative to TTO Monitoring  	  3-13
         3.4.3. Sources of Toxic Organics	  3-13
    3.5. COIL COATING
         3.5.1. TTO Limit	  3-14
         3.5.2. Alternative to TTO Monitoring  	  3-16
         3.5.3. Sources of Toxic Organics	  3-16

4.  GUIDANCE FOR THE PREPARATION OF A TOXIC ORGANIC
    MANAGEMENT PLAN 	   4-1

5.  USE OF THE COMBINED WASTESTREAM FORMULA
    5.1  DEFINITIONS 	   5-1
    5.2  CWF CONDITIONS	   5-1
    5.3  CALCULATION OF ALTERNATIVE TTO LIMITS
         USING THE CWF 	'	   5-2

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                    TABLE OF CONTENTS (cont.)
Chapter
6.  REMOVAL CREDITS
    6.1  REMOVAL CREDITS FOR TTO 	   6-1
    6.2  REMOVAL CREDITS FOR TTO SURROGATE OR
         INDICATOR POLLUTANTS	   6-2

7.  TTO MONITORING GUIDANCE
    7.1. SAMPLING CONSIDERATIONS
         7.1.1. Sampling Location	   7-1
         7.1.2. Sample Collection Techniques 	   7-2
         7.1.3. Sample Volumes 	   7-3
         7.1.4. Sample Equipment and Containers 	  7-12
         7.1,5. Sample Preservation and Holding Times 	  7-13
         7.1.6. Sample Type and Frequency for TTO
                Monitoring	  7-13
    7.2. LABORATORY CONSIDERATIONS
         7.2.1. Analytical Procedures	  7-20
         7.2.2. Laboratory Quality Control	  .-7-21
    7.3. OIL AND GREASE MONITORING CONSIDERATIONS              I
         7.3.1. Oil and Grease Sampling Considerations ......  7-21
         7.3.2. Analytical Considerations for
                Oil and Grease	  7-21

APPENDIX A:  40 CFR Section 403.12: Reporting Requirements
             for POTWs and Industrial Users	   A-

APPENDIX B:  Electroplating and Metal Finishing Category;
             List of Toxic Organic Compounds Regulated as
             Components of Total Toxic Organics 	   8-1

APPENDIX C:  Electrical and Electronic Components Category:
             List of Toxic Organic Compounds Regulated as
             Components of Total Toxic Organics
             (By Subcategory) 	   C-l

APPENDIX D:  Example Toxic Organic Management Plan 	   D-l

APPENDIX E:  40 CFR Section 465.03: Monitoring and Reporting
              Requirements	   E-l

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                                                                 VLB. 21.
"GUIDANCE ON OBTAINING SUBMITTAL AND IMPLEMENTATION OF APPROVABLE
PRETREATMENT PROGRAMS", dated September 20, 1985.

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r

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 **
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                          SEP 2 0 1985
                                                        \MJCOMK1 US
                                                         WOMTOKINfi
MEMORANDUM


SUBJECT:  Guidance on Obtaining Submittal and Implementation
          of Approvable Pretreatment Programs   '

FROM:     Glenn L. Unterberger *£&^ /
         -Associate Enforcement Counsel
        Cj for Water
           i \t' "~~ ~~~"*'  i ~r ^T-, io~*A_-
           Rebecca Hanmer, Director
           Office of Water Enforcement and Permits

 TO:       Regional Counsels, Regions I - X
           Water  Management Division Directors
           Regions I -  X


     Attached  is  a guidance  memorandum on  obtaining POTW
pretreatment program submittal and  implementation.   The guidance
confirms and elaborates on Agency enforcement and permitting
policy positions  which we already have  discussed at our national
meetings, and which  we already are  largely implementing in  the
context of meeting FY85 SPMS commitments and  through EPA's
POTW Pretreatment Program Enforcement Initiative.   The  major
points which this guidance reaffirms are:
                   >
     - that EPA is in the strongest position  to bring an
       enforcement action against a POTW for  failure to
       obtain  or  implement an approved pretreatment program
       when there is a  requirement to do so in the POTW's
       permit;


       that  POTW  permits  which  do not contain these  permit
       requirements should  be modified  or  reissued  as
       QUicklV  »Q  n«-»e» * *-l	
     quickly as possible;
     that in a limited number of cases, EPA can consider
     the possibility of an enforcement action to require a
     POTW without a modified permit to obtain or implement
     an approved pretreatment program, and

     that in bringing a judicial enforcement action for
     failure to  obtain or  implement an approved pretreat-
     ment program,  EPA typically should also. file  claims for
     any  existing NPDES effluent limit violations.
     \  '

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                             - 2 -
     Our objective still is to have all required POTW
pretreatment programs approved or subject to a judicial referral
by the end of FY85.  Early in FY86, we would expect to address
any remaining unapproved POTWs and to begin focusing increased
attention on adequate pretreatment program implementation.

Attachments

cc: Coke Cherney
    Bill Jordan
    Martha Prothro
    OECM Water Attorneys
    David Buente

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       GUIDANCE ON OBTAINING SUBMITTAL AND IMPLEMENTATION
              OF APPROVABLE PRETREATMENT PROGRAMS '
Summary

     40 C.F.R. §403.8(b) establishes certain pretreatment
requirements for any POTT* with a design flow greater than 5
million gallons per day  (mgd) and which accepts pollutants
from Industrial Users which pass through or interfere with the
operation of the POTW or are otherwise subject to pretreatment
standards as well as for other POTWs as determined by the
Approval Authority.  Specifically, the regulation requires these
POTWs to "...receive approval of a POTW Pretreatment Program
no later than...July 1,  1983..." and that the approved pretreat-
ment program "...be administered by the POTW to ensure compliance
by Industrial Users with applicable pretreatment standards and
requirements."

     This guidance addresses POTW's previously identified as"
needing pretreatment programs.  This Guidance should be utilized
in selecting the most effective approach to ensure that
non-approved POTW's requiring programs in your Region obtain
pretreatment program approval as soon as possible and .that
POTWs with approved programs implement them properly and
expeditiously.

     The requirement to obtain approval of and to implement
a pretreatment program should be incorporated in a POTW's
NPDES permit.  Where a POTW meets the criteria of 40 C.F.R.
§403.3(a) and its permit does not contain the requirement
to obtain approval of and implement a pretreatment program,
the Region should expeditiously modify the POTW's -permit
—or request an approved State to do so—to incorporate such
a requi rement.

     In general,  to enable EPA to bring an enforcement
action for failure by the POTW to either obtain an approved
pretreatment program or implement its pretreatment program,
a POTW's NPDES.permit should either contain such a requirement
or be modified or reissued with such a requirement.   For a POTW
that has failed to obtain or implement an approved pretreatment
program—-if EPA is the pretreatment Approval Authority—EPA
should pursue a judicial enforcement action under Section 309(b)
and (d) of the Clean Water Act to obtain compliance and civil
penalties;  where an approved State is the Approval Authority,
EPA should urge the State to bring a comparable enforcement
action and bring a federal enforcement action if the State
fails to take timely and appropriate action.  An alternative
legal theory,  available in a limited number of cases,  to require
a POTW without a modified permit to obtain or implement an
approved pretreatment program,  is discussed on pages 5 and 6.

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                            - 2 -
Background

     Section 307(b) of the Clean Water Act requires EPA to
promulgate pretreatment standards to prevent Interference
or Pass Through by toxic pollutants introduced into a POTW.
Section 402(b)(8) of the Clean Wa'ter Act establishes a system
whereby, NPDES permits would require POTWs to implement and
enforce pretreatment standards.  40 C.F.R. §§403.8 and 403.9
outline the requirements for a pretreatment program to be
developed, approved and incorporated in a POTW's NPDES permit
by July 1, 1983.

     When 40 C.P.R. §403.8{b) was promulgated, it was anticipated
that the requirement to obtain approval and implement a pretreat-
ment program would be promptly incorporated in applicable NPDES
permits as provided in 40 C.F.R. §403.8(d) and (e), §403.10(d),
§122.62(a)(7), and §122.62(a)(9).  While most POTW permits have
been modified, many remain that have not been modified to
contain the requirement to obtain program approval and implement-
the approved program.  Also, many POTWs with modified permits -and
POTWs with unmodified permits have not yet obtained program approval,
even though the deadline prescribed by 40 C.F.R. §403.8{b) for
obtaining program approval has passed.  To successfully carry out
the pretreatment provisions of the Clean Water Act, the Agency  ~"
must ensure that every POTW which needs a pretreatment program
submit an approvable pretreatment program and obtain program
approval as soon as possible.

Enforcing a Permit Requirement to Develop a Pretreatment Program

     Where a POTW's permit does contain a requirement to obtain
and implement an approved pretreatment program and the POTW has
failed to comply with the permit requirement and any Administrative
Order issued by the Approval Authority requiring the POTW to
obtain and implement its pretreatment program, the Approval
Authority should initiate judicial enforcement.   It should be
noted that a judicial enforcement action can be initiated
without prior issuance of an Administrative Order.   Particularly,
with regard to failure to obtain program approval by this time,
the Approval Authority should judicially enforce a permit
requirement to obtain program approval through a court action
without first issuing an Administrative Order.

     The decision to initiate an enforcement acti6n for failure
to obtain an approved pretreatment program or for failure by the
POTW to implement an approved pretreatment program should be
based on factors such as the severity of the POTW's noncompliance,
such as: (1) degree of disregard by the POTW for pretreatment
requirements; (2) evidence of water quality impacts,  interference
pass-through, or sludge contamination resulting from failure
to have an approved program in operation;• (3) failure by the
POTW even in the absence of an approved program to obtain

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                             - 3 -
 compliance by industrial users with applicable pretreatntent
 standards and requirements; (4) existence of other NPDES permit
 violations.  While these factors relate to ranking the severity
 of noncomplying POTW's, their absence does not preclude judicial
 enforcement.

      An EPA enforcement action for failure.._to_o.b.tain..program
 app_ro_v.al as required by a POTW's permit is taken under Section
.. 309JLb) for failure..of. the POTW to comply, with, requirements in
 its. permit treat" were established under authority of Section
 402(b)(8) and its implementing regulations for the purpose
 of implementing the pretreatment provisions of Section 307.
 All such cases should result in an expeditious compliance
 schedule for obtaining an approved program (see Attachment A),
 reporting requirements, significant civil penalties that consider
 economic benefit and address the gravity of the violation,
 and any provisions necessary to ensure program implementation.

      An EPA judicial enforcement action for fai_lure_jto _imp_lement•
 an apprjoved pretreatment program as required by^a POTW's permit
 is based on the same statutory requirements.   All "failure to -
 implement" cases should result in specific implementation
 activities (e.g.,  permit issuance,  inspections, enforcement
 response) by specified dates,  progress reports, and significant
 civil penalties.

 Requiring Development and Implementation of a Local Pretreatment
 Program Through Permit Modification or Reissuance

     If a POTW that is required to administer an approved
 pretreatment program does not  have or is not implementing one
 and is not currently required  by its NPDES permit to do so,
 the Region should have the permit modified or revoked and
 reissued as quickly as possible to require the POTW to obtain
 approval of and implement a program according to an expeditious
 compliance schedule.   While permit modification or reissuance
 is not the only legal option available to require a POTW to
 obtain or implement an approved pretreatment program in the
 absence of a permit requirement,  it is generally the most
 legally sound approach, and typically the one the Agency should
 follow.   Permit modification or reissuance will put EPA in the
 strongest legal position if an enforcement action against the
 POTW is  necessary.

      Permit modification or reissuance is'-always necessary when
 a  POTW that has not previously been identified as needing a
 pretreatment program is required to develop and implement one.
 If an approved State attempts  to reissue an NPDES permit
 without  including  pretreatment requirements,  EPA should object
 formally,  and,  if  necessary, veto the deficient permit.

      If  EPA is the permitting  authority,  the  Region may either
 modify or.revoke and  reissue the  permit pursuant to the procedures
                                                               ItfH

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                            - 4 -
at 40 C.F.R. Parts 122 and 124 to require the POTW to obtain
approval of and implement a pretreatment program.  The regulations
specifically identify the incorporation of a requirement to
develop an approved POTW pretreatment program as an appropriate
"cause" for permit modification or reissuance.  If the Region
chooses to modify the permit, only the pretreatm.ent.jcaqu±rement
need be subject to comment -and decision.  If the Region chooses
the reissuance procedure, the entire permit is reopened and
subject to revision (40 C.F.R. §122.62)>

     If a State is the NPDES permitting authority for the
POTW, the Region should request the State to modify or reissue
the POTW's NPDES permit as quickly as possible pursuant to
the State analogue of 40 C.F.R. §124.5.

     In certain situations a POTW will obtain approval of a
pretreatment program without a pre-existing permit requirement
or with a permit requiring the POTW to obtain approval but not
requiring implementation.  Suitable provisions pertaining to
the approved pretreatment program must still be incorporated
into the POTW's NPDES permit as soon as practicable to ensure-
the Approval Authority's ability to enforce proper implementation.

     A compliance schedule leading to pretreatment program
approval can be imposed on the POTW in either one of two ways.
First, the compliance schedule can be included in the modified
or reissued permit.  Second, the compliance schedule can be
included in an Administrative Order issued contemporaneously
with the modified or reissued permit. I/  These two methods are
illustrated by the two versions of suggested permit language in
.Attachment B.  Both methods would be enforceable in a federal
enforcement action against the POTW as long as the underlying
requirement to obtain approval of the pretreatment program was
contained in the POTW's modified or reissued permit.
 I/   If a POTW was previously  identified and notified  that  it
     needed a pretreatment program after the July .1, 1983 regu-
     latory deadline  contained in 40 C.F.R. §403.8, the POTW's
 NPDES permit can contain a compliance schedule  leading to
 program approval requiring program .submission after July 1,
 1983.  For those POTW's which were notified prior to  July  1,
 1983 that they  needed  a pretreatment program, inclusion of a
 compliance schedule  in a modified or reissued permit  requiring
 compliance after that  date may be in violation  of 40  C.F.R.
 §§403.8(d) and  122.4(a).  In  the latter instance, a compliance
 schedule would  have  to be contained in an Administrative Order
 issued contemporaneously with the modified or reissued permit.

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                             - 5 -
     The compliance schedule requiring program approval must
be realistic.  It should contain only enough time to accomplish
the necessary activities culmirtating in the submittal of an
approvable pretreatment program.  Individual factors affecting
pretreatment program development will determine the content of
the compliance schedule and the date by .which the program must
be submitted.  The compliance schedule must require submittal
of an approvable pretreatment program as soon as reasonably
possible; in most cases no more than j5 months.  A six-month
compliance period represents the usual maximum time period for
obtaining an approved pretreatment program.  If, for example,
a POTW has already completed an Industrial User survey and
a technical analysis, 60 days is generally a sufficient time
period to complete the program application.

     Once a POTW's NPDES permit.has been amended by the Approval
Authority to require the POTW to obtain and implement an
approved pretreatment program, the Approval Authority should
closely monitor the POTW's compliance and take enforcement
action promptly if the POTW falls behind schedule.

Federal Enforcement in the Absence of a Permit Requirement

     In limited circumstances, EPA might seek to require a POTW
to obtain or implement an approved program in the absence of
an NPDES permit requirement.  This would be the case where
the Agency can establish good evidence that the absence of
an active pretreatment program is contributing to POTW effluent
violations or the absence of a pretreatment program is causing
demonstrable environmental problems and the permit amendment
process described above will not address the problem in an
expeditious manner.  In these limited instances, the Government
may sue the POTW for existing NPDES violations under Section
309(b) and (d) of the Clean Water Act and seek submission and
implementation of a pretreatment program as an element of relief.

     Alternatively, Section 309Lf) of the Clean Water Act may
be available to obtain or implement an approved program in the
most serious cases in which EPA has identified industrial user(s)
in violation of federal pretreatment standards. 2/  An enforcement
action under Section 309(f) would require that the Agency claim
that requiring the POTW to obtain approval of and implement a
2/  The legal operation of Section 309{f) is explained in more
~"   detail in the Agency enforcement guidance "Choosing Between
Clean Water Act $309(b) and $309(f)  as a Cause of Action in
Pretreatment Enforcement Cases" issued on the same date as this
enforcement guidance.

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pretreatment program was an element of "appropriate relief".
Because use of Section 30?(f) in this situation requires that
obtaining or implementing a pretreatment program constitute
"appropriate relief", a Region should consider carefully whether
the situation would fit that criterion, in deciding whether to
bring an enforcement action under Section 309(f).  For example,
EPA will' be in a stronger legal position to sustain this cause
of action where the Agency can establish by goad-evidence that
la£k_ of a pretreatment program contributes to substantial
industrial user nqncompliance with Federal pretreatment standards.

Joining Other POTW Permit Violations In An Action For Failure
To Obtain or Implement an Approved Pretreatment Program

     In those instances where failure to obtain or implement
an approved program coexists with NPDES effluent violations,
the effluent violation claims should as a rule be joined to the
pretreatment claim.  There may be exceptions, notwithstanding
the existence of effluent violations, where an enforcement action
against a POTW only for failure to obtain or implement -an approved
pretreatment program is desirable.  This situation might arise,
for example, where absence of a pretreatment program is causing
immediate environmental problems and unrelated effluent violatiq
or appropriate remedies are particularly difficult to identify
and substantiate; such instances are probably atypical.  If the
do occur the Government must take steps to limit the likelihood
that either of the judicially recognized doctrines of collateral
estoppel or res judicata will preclude a subsequent judicial
enforcement action against a POTW for effluent violations. _3/
3/  Under the doctrine of res judicata, a final judgment on
    the merits bars further claims by parties or their privies
based on the same cause of action.  Montana v. United States,
440 U.S. 147, 153, 99 S.Ct. 970, 973 (1979).  Res  judicata makes
conclusive a final valid judgment and if the judgment is on  the
merits, precludes further litigation of the same cause of action
by the parties.  Antonioli v. Lehigh Coal and Navigation Co.,
451 F.2d 1171, 1196 (3d Cir. 1971), cert, denied,  406 U.S. 906
(1972).  Under the doctrine of collateral estoppel, an actual
and necessary determination  of an issue by a court is conclusive
in subsequent cases based on a different cause of  action but
involving either a party or a privy to the .prior litigation.
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5,
99 S.Ct. 645, 649 n, 5, (1979).

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                               -  7 -
      For the most part, failure to allege all known NPDES
 permit violations may  later give rise to an argument by  a  POTW
 that res judicata should apply to bar these claims in  the
 future.  Alleging all  such violations avoids this problem
 and also promotes efficient use of Government resources, increases
 environmental benefits from'the enforcement action, and  is the
 preferred approach.

      Res judicata and  collateral estoppel standards can  reasonably
 be viewed as not precluding successive Government enforcement
 actions against a POTW for different causes of action  based on
 different types of permit violations stemming from different
 causes.  However, there is, of course, always the uncertainty
 as to whether any court will be amenable to successive suits
 against the same party for water pollution control violations.
 These uncertainties 'can be minimized by a careful litigation
 strategy and should not per se preclude successive enforcement
 actions.  Nonetheless, if at all possible, an enforcement
 action should include all known NPDES violations, particular1?
 if it can be demonstrated that effluent violations are in  any-
 way attributable to the absence of a pretreatment program.

      A lawsuit filed against a POTW only "for_Jail^r,e to-  obtain
 or implement ..an. approved pretreatment "program as required,  by
 the POTW's NPDES permit should be pleaded solely as a  failure
 to-l£.911!lP-!:Z-wi~!r*1 the permit provision(s) requiring program approval
•-or__implementation.  Failure to obtain or implement an  approved
 program 'shoul'd notVbe pleaded as a violation of the NPDES
 permit in ^general1, ^speciiically,  the Government should  ensure,
 to "ttte"~extent possible, in such an enforcement action  that the
 basis for the action is clearly articulated as a violation of
 the specific requirement for pretreatment program approval or
 implementation,  so that questions regarding POTW compliance
 with permit efflue'nt limits do not come into issue in  the
 (footnote continued)

     While there is no federal case law directly on point
 addressing the- issue involved,  several cases involving Federal
 environmental statutes and the doctrines of res judicata
 and collateral estoppel are instructive.  See,  for example,
 United States v.  ITT Rayonier,  Inc.,  627 F.2d 996, 1002
 £9th Cir. 1980),. Western Oil and Gas  Assoc. v.  Environmental
 Protection Agency.  633 F.2d 803. 810  (9th Cir.  1980), and
 Earth First v. Block,  569 F. Supp 415 (D^ Ore.  1983).

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                              - 8  -
 initial  enforcement action. £/  This practice  should be  followed
 whether  or  not  a  subsequent action based on effluent violations
 is  contemplated.

     When and if  these  issues arise, their resolution by a
 court  will  likely turn  on  the characterization of  the Agency's
 initial  and subsequent  causes of  actions against a POTW  and
 the issues  resolved during the  initial  litigation.  Therefore,
 the Government  should clearly and precisely articulate its
 cause  of action and claim  for relief in all actions for  failure
 to  obtain or implement  an  approved pretreatment program.
 This will provide an articulable  basis  for distinguishing
 a subsequent action for POTW effluent violations.   „_

     Collateral estoppel problems will  concern issues that
 are necessary to  the outcome of the initial pretreatment action
 that would  also be determinative  issues in the subsequent
 enforcement action for  effluent violations.  For example, in an
 action for  failure to obtain an approved pretreatment program,
 a court  may rule  on whether a POTW's permit was properly issued
 in  deciding whether the permit  is enforceable  as written.
 The ruling  on permit enforceability would be controlling if
 the question arose again in a subsequent action addressing
 violations  of the permit's effluent limits.

Vs    There  is nothing inherent  in such  an atypical pretreatment
 enforcement action that necessarily will decide any or all
 issues in a subsequent  effluent violation action against the
 same POTW.   Indeed, in  many cases, the  circumstances relating
 to  violations of  a POTW's  pretreatment  program will have no
 bearing  on  the  circumstances surrounding a POTW's  failure to
 comply with effluent limits.  A careful and articulate litigation
 strategy will minimize  both res judicata and collateral  estoppel
 problems against  the Government in a subsequent action against
 the POTW for NPDES effluent violations.
 £/  An enforcement  action  under  Section  309(b)  or  Section
    309{f)  of  the Act—in  the  absence  of a  corresponding permit
 requirement—seeking pretreatment program submission  or
 implementation .as  "appropriate relief" should make clear to  the
 extent possible  that the need  for a  local pretreatment program
 is  independent of the  POTW's compliance  with the effluent  limits
 in  its permit.   In  most cases, this  argument may not  be available
 if  the Government needs to show  that the lack of a pretreatment
 program is  leading  to  POTW effluent  limit violations  in order t
 persuade the court  that requiring program approval constitutes
 "appropriate relief".          '            .

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     This Guidance Memorandum is intended solely for the use
of Agency enforcement personnel.  This guidance creates no rights,
is not binding on the Agency, and no outside party should rely
on it.

Attachments

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                                                     N/
                                                     ATTACHMENT A
Compliance Schedule for POTW Pretreatment Program Approval

1.  On or before (3 months or less from date the compliance
    schedule is effective),the permittee shall submit the
    following:

    (a)  The results of an industrial waste survey as required
         by 40 C.F.R. §403.8(f)(2)(i-iii), including the
         identification of industrial users and the character
         and volume of pollutants contributed to the POTW by
         the industrial users;

  {b)(D  An evaluation by the City Attorney or a public official
         'acting in a comparable capacity, of the legal authorities
         to be used by the permittee, to apply and enforce the
         requirements of §§307(b) and (c) and 402(b}(8) of the
         Clean Water Act, including those requirements delineated——
         in 40 C.F.R. §403.8(f)(1);

  (b)(2)  A schedule under which the permittee shall obtain
         the legal authorities which the evaluation conducted
         under (b)(l) above identified as inadequate or missing.
         This legal schedule shall require that the permittee
         submit the necessary legal authority no later than
 (c)(l)  A plan and schedule for obtaining any additional
         technical information that will be needed by the
         permittee in order to develop specific requirements
         for determining violations of the discharge prohibitions
         in 40 C.F.R. §403.5 and to develop an industrial
         waste ordinance or other means of enforcing pretreatment
         standards.

 (c)(2)  The plan must include influent, effluent and sludge
         sampling that will enable the POTW to perform a
         technical evaluation of the potential for pollutant
         pass through, interference, or sludge contamination,
         and to calculate,  for each pollutant of concern,
         the maximum safe loading which can be accepted by
         the treatment facility-


2.   On or before (3 months  or less from submittal date in
    item 1.,  above),  the permittee shall submit the following:

    (a)  Proposed staffing  and funding to implement the local  .
         pretreatment program.   An estimate of personnel needed
         to (1) establish and track schedules of compliance,
         (2)  receive and analyze self-monitoring reports, (3)

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                          - 2  -
                                                            m
      conduct independent monitoring and analysis  as  necessary,
      (4)  investigate noncompliance,  and (5)  take  enforcement
      actions, .shall be included.   The  discussion  of  funding
      shall include both a description  of the funding sources
      and  estimated program costs;

 (b)  A detailed description of the POTW's pretreatment
      strategy for each Industrial  User or class of Users
      identified in l(a), above.  The permittee shall identify
      the  manner in which it will apply pretreatment standards
      to individual industrial users as required by 40 C.F.R.
      §403.8 (such as by Order, Permit, Contract,  etc.).
      The  discussion shall include  provisions for.notifying
      industrial users of:  applicable  local  pretreatment
      requirements, applicable federal  categorical standards
      as they are promulgated, and  the  industrial reporting
      requirements of 40 C.F.R. §403.12(b)-(e);

 (c)  A detailed description of a monitoring  and enforcement "
       ?rogram which will implement  the  requirements of 40 C.F.R,
       403.8 and §403.12, particularly  requirements referenced
     -in 40 C.F.R. §403.8(f)(1)(iv-v),  §403.8(f)(2)(iv-vi),
      and §403.12(h-j) and (1-n);

 (d)  A description of equipment and facilities the POTW
      will use to monitor and analyze industrial wastes;

 (e)  A draft sewer use ordinance or other legally enforceable
      mechanism containing specific effluent  limitations
      for prohibited pollutants defined in 40 C.F.R.  §403.5
      discharged to the POTW by its Industrial Users.
      (The POTW should not enact the ordinance until it has
      been reviewed and approved by the Approval Authority.}

 On or before (3 months or less* from submittal date in
 item 2.,  aboveTithe permittee shall submit its complete
 pretreatment program for approval  which satisfies the
 requirements of 40 C.F.R. §403.8.   The approval request
 must be in accordance with the requirements  of 40 C.F.R.
 §403.9.
While a POTW could have up to 3 months for any individual
program step, the entire submittal process should take
no more than 6 months.

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                                                     ATTACHMENT  B
SUGGESTED NPDES PERMIT LANGUAGE
  (for a POTW notified prior to July 1,  1983  that it needs
   a pretreatment program and for which  a  contemporaneous
   AO will be issued containing a compliance  schedule)

     Under the authority of Section 402(b)(8) of the Clean
     Water Act and the General Pretreatment Regulations
     (40 C.F.R.  Part 403),  which implement the pretreatment
     provisions  of Section 307 of the Clean Water Act, the
     permittee is required to obtain approval in accordance
     with the provisions of 40 C.F.R.  §§403.8 and 403.9, and
     thereafter  implement,  a pretreatment  program.   —
  (for a POTW previously identified and  notified after July 1,
   1983 that it needs a pretreatment program)

     Under the authority of Section 402(b)(8)  of the Clean
     Water Act and the General Pretreatment Regulations
     (40 C.F.R.  Part 403),  which implement the pretreatment "
     provisions of Section 307 of the Clean Water Act,  the
     permittee is required to obtain approval  in accordance
     with the provisions of 40 C.F.R. §§403.0  and 403.9,  and
     thereafter implement,  a pretreatment program,  in accordance
     with the following schedule:

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                                                                  VLB.22,
"GUIDANCE ON OBTAINING SUBMITTAL AND IMPLEMENTATION OF APPROVABLE
PRETREATMENT PROGRAMS", dated September 20, 1985.

-------

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w
                   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                WASHINGTON, D.C. 20460
                                   SEP HO 1985
                                         IIH-K I Hf FVCOHUNUS1
                                           VMM OMI'I UM't
           MEMORANDUM
            SUBJECT:
            FROM:
           TO:
Choosing Between Clean Water Act S309(b) and §309(f )
as a Cause of Action in Pretreatment Enforcement Cases
Glenn L. Unterberger
Associate Enforcement Counsel
  for Water
Regional Counsels, Regions I-X
           Summary

                Statutory and regulatory compliance dates  for many
           pretreatment requirements are now  in effect.  EPA has  referred
           and will continue to refer enforcement actions  to the  Department
           of Justice against POTWs and Industrial Users for violation of
           general and categorical pretreatment requirements.  The purpose
           of this memorandum is  to provide guidance on when to use either
           §309(b) or §309(f) of  the Clean Water Act as the cause of  action
           in a pretreatment enforcement case.

                The following guidelines apply when choosing between
           §309(b) and §309(f) as a cause of  action in a federal  pretreatment
           enforcement action:

             (1)  In an enforcement action solely against  an Industrial User
                  for violation of pretreatment standards, the enforcement
                  action should be based on §309(b), and not §309(f);

             (2)  Typically, where a POTW has not obtained or implemented
                  an approved pretreatment program, the most legally  sound
                  and most strongly preferred method for ensuring pretreatment
                  program adoption is to enforce an appropriate provision
                  in the POTW's permit under  §309(b), or modify the permit
                  if such a requirement is not yet present.  Thus, in an
                  enforcement action solely against a POTW for failure to
                  obtain or implement an approved pretreatment program—
                  if the POTW's NPDES permit requires program approval or
                  implementation—the enforcement action should be based
                  on §309(b), and not §309(f);

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                             -2-
  (3)  In an enforcement action solely against a POTW for
       failure to.obtain an approved pretreatment program
       —if the POTW's NPDES permit does not require program
       approval—an enforcement action can be based on §309(b)
       if there are demonstrable NPDES permit violations,
       particularly ones which relate to the absence of a
       pretreatment program (program submission would be sought
       as "appropriate relief" under §309(b)); and

  (4)  In an enforcement action against a POTW and one or more
       Industrial Users covering the POTW's failure to obtain or
       implement an approved pretreatment program, the Government
       can base its enforcement action on §309(b), §309{f), or
       both.  Note, however, that an action against the POTW is
       available under §309(b) only if the POTW's permit requires
       the POTW to obtain and implement an approved pretreatment
       program or if there are coexisting permit effluent
       violations, particularly ones which relate to failure to
       implement the pretreatment program.  Moreover, if there.
       is no enforceable permit provision, the Government will
       be in the best position to sustain its case if the POTWTs
       failure to obtain program approval or program implementation
       has resulted in widespread Industrial User noncomplianc*
       with pretreatment standards or water quality problems.

     It should be noted that both §309(b) and §309(f) do not
include specific statutory authority to seek civil penalties;
the statutory language in both subsections authorize the
Administrator to "...commence a civil action for appropriate
relief...."  For this reason, an enforcement action based on
§309(b) or §309(f) and seeking civil penalties should also
include §309(d) in the cause of action.

Statutory Provisions Authorizing Pretreatment Enforcement Actions

     Section 309(b) of the Clean Water Act is jurisdictional
in nature; i.e., it authorizes the federal government to invoke
the jurisdiction of a federal district court in an enforcement
action for violation of specified sections of the Act, including
the pretreatment provisions of the Act in §307.

     "(b) The Administrator is authorized to commence a civil
     action for appropriate relief, including a permanent or
     temporary injunction, for any violation for which he is
     authorized to issue a compliance order under subsection
     (a) of this section.  Any action under this subsection may
     be brought in the district court of the United States^ for
     the district in which the defendant is located or resides
     or is doing business, and such court shall have jurisdict
     to restrain such violation and to require compliance.
     Notice of the commencement of such action shall be given
     immediately to the appropriate State." (emphasis added)

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                              -3-


     Section 309(d) of the Clean Water Act is the civil
penalty provision of the Act; i.e., violators of specified
sections of the Act are subject to a statutory civil penalty
not to exceed $10,000 per day for each violation of those
sections:

     "(d) Any person who violates section 301, 302, 306, 307,
     308, 318, or 405 of this Act, or any permit condition or
     limitation implementing any of such sections in a permit
     issued under section 402 of this Act by the Administrator,
     or by a State, or in a permit issued under section 404 of
     this Act by a State, and any person who violates any order
     issued by the Administrator under subsection (a4 of this
     section, shall be subject to a civil penalty not to exceed
     $10,000 per day of such violation."  (emphasis added)

     Like §309(b), §309(f) of the Clean Water Act also confers
authority on the Agency to invoke federal district court
jurisdiction:

     "(f)  Whenever, on the basis of any information available"
     to him, the Administrator finds that an owner or operator
     of any source is introducing a pollutant into a treatment
     works in violation of subsection (d) of section 307,
     the Administrator may notify the owner or operator of
     such treatment works and the State of such violation.
     If the owner or operator of the treatment works does not
     commence appropriate enforcement action within 30 days
     of the date of such notification, the Administrator may
     commence a civil action for appropriate relief, including
     but not limited to, a permanent or temporary injunction,
     against the owner or operator of such treatment works.
     In any such civil action the Administrator shall join the
     owner or operator of such source as a party to the action.
     Such action shall be brought in the district court of
     the United States in the district in which the treatment
     works is located.  Such court shall have jurisdiction
     to restrain such violation and to require the owner or
     operator of the treatment works and the owner or operator
     of the source to take such action as may be necessary
     to come into compliance with this chapter.  Notice of
     commencement of any such -action shall be given to the
     State.   Nothing in this subsection shall be construed to
     limit or prohibit any other authority the Administrator
     may have.under this chapter." (emphasis added)

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                              -4-
     Clearly, S309(f)—as does §309(b)—authorizes the Government
to invoke a federal district court's civil jurisdiction in an
enforcement action based on a violation of §307(d) of the Act.
Thus, by the operation of both §309(b) and §309(f), the Government
has the authority to invoke the jurisdiction of a federal district
court to enforce pretreatment provisions of the Clean Water Act.
In many cases, either subsection—(b) or (f)—or both, could be
used in conjunction with subsection  (d) as the Government's
cause of action in a pretreatment enforcement action.

     Legislative History of §309{f)

     Section 309(f) was added to the Act as part of the 1977
amendments. I/  It was added during  the Conference Committee as a
substitute for the original §309(f)  contained in the Senate bill,
S. 1952; §309(f) in the Senate bill  bore no resemblance to the
substitute §309(f) adopted at Conference. 2/ In the House bill,
H.R. 3199, there were no pretreatment amendments.  Therefore,
there is no legislative history in the House or 'Senate committee
hearings or in the House or Senate committee reports accompanying
the 1977 amendments regarding this subsection of 5309.
     The Conference Report of the 1977 amendments states only
that new subsection (f) was added to §309.  3/  The discussion
new subsection  (f) in the Conference Report""is limited  strictl
*
I/  It should be noted that §307(d) and S309(b) and  (d) were
    added to the Clean Water Act as part of  the 1972 Clean Water
Act amendments.  It  is apparent from the legislative history of
the 1972 amendments  that §309(b) was contemplated  as sufficient
authority to enforce the pretreatment provisions of  the Act.
See, S. Rep. No. 92-1236, 92d Cong., 2d Sess.  131  (1972),
reprinted in Rep. No. 93-1, Committee on Public Works, 93d
Cong., 1st Sess., A  Legislative History of the Water Pollution
Control Act Amendments of 1972, at 314  (1973), and H.R. Rep.
No. 92-911, 92d Cong., 2d Sess. 114 (1972),  id., at  801.

2/  See, S. Rep. No. 95-370, 95th Cong., 1st Sess. 46  (1977),
~~   reprinted in Rep. No. 95-14, Committee on Environment and
Public Works, A Legislative History of  the Clean Water Act of_
1977, A Continuation of. the Legislative History of the Federal
Water Pollution Control Act, at 600 (1978).

3/  "Section 309 of  the Federal Water Pollution Control Act
""   is amended by adding at the end thereof  the following new
subsection:   [quotes subsection .(f) verbatim]."  H.R.  Rep.
No. 95-830, 95th Cong., 1st Sess.  28  (1977).  Id., at  212.
In addition, the Joint Explanatory Statement olthe  Committee
of Conference only states "...section  309  of the Act is  amended
by adding a new  subsection  (f)  to  provide  that [quotes subsection
 (f) verbatim]."  Id., at 270-271.

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                              -5-
 to a restatement of  the subsection.  The Conference Report thus
 provides no  information regarding why the Senate version of
 subsection  (f) was not accepted or why  the Conference Committee
 version of subsection  (f) was adopted.

     The Conference  Report was debated  and passed by both
 the House and  the Senate on December 15, 1977.  The addition
 of subsection  (f) to §309 was not debated in either House.
 Subsection  (f) was mentioned by both Floor managers of  the
 legislation, Congressman Anderson (D-Cal.) and Senator
 Muskie  (D-Maine), during their extensive remarks covering
 the entire 1977 amendment package. 4/

     While the remarks of Congressman Anderson and Senator
 Muskie do not  discuss why §309(f) was included as part  of
 the 1977 legislation, Congressman Anderson did state that
 "The municipality has the primary responsibility to enforce
 [the pretreatment] standards against the industries.  EPA is
 not to unilaterally enforce these standards against the
 industries."   It is unclear what this statement actually means
 since the last sentence in §309(f) states that it does  not
 "...limit or prohibit any other authority the Administrator
 may have...",  and §309(b) was not amended in any way to prevent
 its use in pretreatment enforcement against industrial  users.
Choosing Between §309(b) .and §309(f) — §309(b) as the Preferred
Cause of Action, and When §309(f) May Be Preferred
     Nothing in §309 itself precludes the use of subsection  {b)
rather than subsection  (f) as the cause of action  in a federal
pretreatment enforcement action; nor is the legislative history
of §309(f) conclusive in requiring use of subsection (f)  to  the
exclusion of subsection (b).

     Where either subsection is applicable, the Government thus
has the discretion—in most cases—to choose either subsection
or both as its cause of action in a pretreatment enforcement
action.  However, because §309(b) requires no advance notice
to the State, no opportunity for appropriate local enforcement
action preemptive of federal action and no joinder, it is easier
to invoke procedurally than §309(f).  It is therefore likely
that §309(b) would almost always be the Agency's "cause of action
of choice."  However, even if §309(f) is considered less attractive
than §309{b) for procedural, reasons in a pretreatment enforcement
action, its u-se as a cause of action where §309(b) is available
is not necessarily precluded, particularly if the Government
can obtain relief not otherwise available under §309(b).
_4/  House Debate, December 15, 1977, id. , at 404, and Senate
    Debate, December 15, 1977, id., at 461.

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                              -6-
     In a pretreatment enforcement action in which the Agency
seeks relief only against Industrial Users, or only against a
POTW for failure to obtain or implement an approved pretreatment
program, the Agency should continue to base its enforcement
actions on §309(b).

     Section 309(b), for the reasons described above, also is
typically the preferable cause- of action against a violating
Industrial User and a POTW that has failed to properly implement
its pretreatment program—approved pursuant to 40 C.F.R.  §403.8
and required by the terms of its NPDES permit.  Nevertheless,
the Government alternatively may initiate a pretreatment  enforce
ment action using §309(f) after providing 30 days notice  to the
POTW to implement pretreatment requirements and the subsequent
failure of the POTW to do so.  Section 309(f) would be directly
on point in this situation because the Agency would be seeking
relief both against the POTW for failure to implement its
pretreatment program and against violating sources which  the
POTW had failed to enforce against.

     The option to use §309(b) in the above instance would be  -
preferable if it was determined that providing a POTW 30  days
formal notice of a violating Industrial User would lead either
to no remedial action by the POTW or remedial action that
would be deemed unsatisfactory by the Agency but claimed  to be
'"appropriate enforcement action" by either the source or  the
POTW if subsequently challenged by the Agency.

     Section 309(b) would also be the preferable cause of
action against a POTW failing to implement a permit-required
program where the Agency lacked either the information or
was unable to identify and bring a combined action against
both a POTW and violating Industrial Users.

     Situations may arise where the Agency would not desire
to have a POTW/municipality as a defendant in a pretreatment
enforcement action; e.g., a POTW may request the Agency to
initiate an enforcement action against an  industrial user or
the Agency may desire to have the POTW as  a party plaintiff.
In this type of situation, §309(b) would be the Government's
preferable cause of action.

     The notification and litigation provisions described in
S309(f) are discretionary.  The Agency can notify a  POTW  of
pretreatment violations without being obligated to follow up
that notification with  litigation.  Therefore,  it  is conceivable
that §309(f) could  be used for  "action-forcing" purposes  to
provide notice  to  a POTW  that  is not  implementing  its  approved
program.  Using  a  §309{f)  letter  to motivate  a  POTW  to proper
 implement an approved program would make  a §309(f)  letter to
offending POTW  a  "quasi  Administrative Order".  This use  of
 §309{f) should  be  considered.

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                              -7-


     The use of S309(f) "notice letters" would be most effective
when a POTW has an approved pretreatment program; in the absence
of an approved pretreatment program, it is unlikely the POTW
will be willing and able to assure a remedy of Industrial User
violations in an expeditious manner.

     It should be noted that in almost all instances an Agency
enforcement action against a POTW is predicated upon the POTW
having an approved pretreatment program incorporated in its
NPDES permit pursuant to 40 C.F.R. §§403.8 and 403.9.  This
predicate is based on at least the following two reasons:
First, §402(b)(8) of the Act—also added as part of the 1977
Clean Water Act amendments—requires that any POTW which receives
pollutants subject to pretreatment standards under §307(b)
have a "program to assure compliance" with those standards
incorporated in its NPDES permit.  Second/ §402(k) of the Act
may serve as a "shield" in prohibiting most enforcement actions
against an NPDES permit holder that is not in violation of its
permit.

     A POTW without an NPDES permit requirement to obtain and -
implement a pretreatment program—and thus not susceptible to
an enforcement action under §309{b)—could be subject to a
§309{f) action.  However, the Agency would have to bring a
contemporaneous action against a violating Industrial User and
seek relief against the POTW in the form of injunctive relief
to obtain and/or implement a pretreatment program.  The relief
sought against the POTW would be pursuant to the "appropriate
relief" clause of §309{f).  At the same time the Agency should
take steps to modify or revoke and reissue the POTW's permit
to include a requirement to implement a pretreatment program.
In order to bring such an enforcement action it should be
thoroughly documented that significant, existing Industrial
User violations would be alleviated-by a properly implemented
pretreatment program.  Unless there are compelling reasons
why permit modification cannot be accomplished expeditiously,
Regional efforts should be directed at permit modification
or reissuance.

     This Guidance Memorandum is intended solely for the use
of Agency enforcement personnel.  This guidance creates no rights,
is not binding on the Agency, and no outside party should rely  .
on it.


cc:  Office of Water Enforcement and Permits
     Regional Water Management Directors, Regions I-X
     OECM/Water attorneys
     Environmental Enforcement Section, DOJ

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1*92.

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                                                                  VLB.23.
"RCRA Information on Hazardous Wastes for Publicly Owned Treatment Works",
dated September 1985.  Table of Contents only.

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"KC*!

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                  united Stale;
                             Protaclio'
Office of
Water Enforcement Permits
          DC 204G3
September 1985
         RCRA Information On  Hazardous  Wastes
            For  Publicly Owned  Treatment  Works
                                  TABLE OF CONTENTS
                                                                           Page

 1.     Introduction	   1-1

       1.1 Purpose of This Manual	   1-1
       1.2 Relationship of RCRA to Pretreatment	   1-1
       1.3 Organization of the Manual	   1-4

2.     RCRA Obligations for Generators and Transporters of
       Hazardous Waste	   2-1

       2.1 Hazardous Waste Determination	   2-2
       2.2 RCRA Requirements for Hazardous Waste Generators	   2-10
       2.3 RCRA Requirements for Transporters of Hazardous Waste	*	   2-18

3.     POTW Authority to Regulate Toxic Waste Dischargers Under
       the General Pretreatment Regulations	".	   3-1

       3.1 The National Pretreatment Program	   3-1
       3.2 Elements of a Local  Pretreatment Program	.."	   3-3
       3.3 Notification of Toxic Waste Dischargers by POTWs	   3-3
       3.4 Practical Guidelines for POTWs	   3-5

4.     RCRA Requirements for POTWs	   4-1

       4.1 Overview of POTW Requirements	,	   4-1
       4.2 Basic Requirements for POTWs with  RCRA Permits by Rule	   4-2
      , 4.3 Corrective Action Requirements for POTWs with RCRA
          Permits by Rule	   4-4
       4.4 Alternatives to  Current Permits by Rule	   4-5
                                      APPENDICES

Appendix A:  Regional and State Contacts
Appendix B:  RCRA Information Brochure
Appendix C:  EPA Listed Hazardous Waste
Appendix D:  Notification of Hazardous Waste Activity (EPA Form 8700-12)
Appendix E:  Uniform Hazardous Waste Manifest (EPA Forms 8700-22 and 8700-22A)
Appendix F:  Generator Annual Report (EPA Form 8700-13}
Appendix G:  Draft Letter to lUs
Appendix H:  EPA Pamphlets on Small Quantity Generators
Appendix I:   Biennial  Hazardous Waste  Report (EPA Form 8700-13B)

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                                 UST OF TABLES
Table
                                                                          Page
2.1  EP Toxicity Contaminants	   2-8
3.1  Notification Checklist	   3-8
                                UST OF FIGURES
Rgure

2.1   Hazardous Waste Identification Process..
Page

 2-5

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                                                                 VLB.24,
"Pretreatment Compliance Inspection and Audit Manual for Approval
Authorities", dated July, 1986.  Table of Contents only.

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United Sum
Environmental Protection
Agency
OffictofWmr
finforoimtin and Ptrmitt
Wwhington, QC 20460
July 1986
Pretreatment Compliance
Inspection and Audit Manual
for Approval

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poo

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                             TABLE OP CONTENTS
 1.     INTRODUCTION ............................... . ..................    1-1

       1.1  PRETREATMENT COMPLIANCE INSPECTION (PCI) ........ . ....... .    1-1

       1.2  AUDIT ........................................ . ......... .-.    1-1
                                                                    :

       1.3  ORGANIZATION OP THE GUIDANCE MANUAL ......................    1-2

       1.4  PCI AND AUDIT SCHEDULING AND COORDINATION .......... ......    1-3

       1.5  RESOURCE REQUIREMENTS ....................................    1-3

       1.6  STRATEGIC PLANNING AND MANAGEMENT SYSTEM (SIMS)
           COMMITMENTS .......................... .... ................    1-3

       1.7  SOURCES OP ADDITIONAL INFORMATION ............ . ...........    1-4

2.    OVERVIEW AND BACKGROUND .................... . ..................    2-1

      2.1  PRETREATMENT PROGRAM AUTHORITY ........ .... ...............    2-1

      2.2  FEDERAL REQUIREMENTS ................. ...... ..............    2-1

           2.2.1  Federal Categorical Pretreatnent Standards ........    2-2
           2.2.2  Prohibited Discharge Standards  and Local Limits...    2-2
           2.2.3  Overview of State Regulations .....................    2-6

      2. 3  CONTROL AUTHORITY REQUIREMENTS AND RESPONSIBILITIES ......    2-7

           2.3.1  Industrial Waste Survey ...........................    2-7
           2.3.2  Industrial User Monitoring and  Enforcement ........    2-8
           2.3.3  Recordkeeping and Reporting Requirements... ........   2-9

3.    PCI AND AUDIT PROCEDURES ......................... . ...... . .....    3-1

      3*1  INTRODUCTION .................... ...... .......... ... ......    3-1

      3.2  PREPARATION ................................. . ............    3-1

           3.2.1  Review of the Control Authority's Program Status..    3-1
           3.2.2  Development of an Audit or Inspection Plan.. ......    3-2
           3.2.3  Notification to the Control Authority ........... . .    3-2
           3.2.4  Equipment Preparation .................... . ........    3-3
           3.2.5  Coordination with Region and State. ...............    3-3

      3.3  ENTRY PROCEDURES .................... ........ ......... ....    3-3

           3.3.1  Arrival ...........................................    3-3
           3.3.2  Presentation of Credentials ..... . .................    3-3
           £• <£• «*  ^ons0n£* •*••*••••••••••*******•**•**••••*••»*•*••*    
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i*
      3.4   OPENING CONFERENCE	  3-4

      3.5   DCCUMENTATICN...-..-	  3-4

      3.6   TOUR OF THE POTW (Optional)	  3-4

      3.7   VISITS TO LOCAL INDUSTRIES (Optional)...	  3-5

      3.8   CLOSING CONFERENCE	  3-6

     3.9   REPORT PREPARATION	  3-6

           3.9.1  Schedule for Report Submission	  3-8

     3.10  DATA ENTRY INTO PCS	  3-8

   .  3.11  FOLLOWKJP RESPONSE TO THE CONTROL AUTHORITY.	  3-8

           3.11.1  PCI	  3-8
           3.11.2  Audit	  3-8

4.   PRETREATMENT COMPLIANCE INSPECTION (PCI) CHECKLIST..	  4-1

     4.1   CONTROL AUTHORITY BACKGROUND INFORMATION...	.	  4-2

           4.1.1  General Control Authority Information	  4-2

     4.2   COMPLIANCE MONITORING AND ENFORCEMENT PROCEDURES -
           CONTROL AUTHORITY PERSONNEL RESPONSE	  4-4

           4.2.1  Control Authority Pretreatnent Program Overview	  4-4
           4.2.2  Control Authority Pretreatnent Program
                   Modifications	  4-4
           4.2.3  Control Authority Inspection and Monitoring of
                   Industrial Users (IQs)	  4-6
           4.2.4  Control Mechanism Evaluation	  4-8
           4.2.5  Enforcement Procedures	  4-10
           4.2.6  Compliance Tracking	  4-12

     4.3   COMPLIANCE MONITORING AND ENFORCEMENT - IU FILE
           EVALUATION	  4-14

           4.3.1  Pile Contents	  4-16
           4.3.2  Control Mechanism Evaluation	  4-16
           4.3.3  IU Compliance Evaluation	  4-18
           4.3.4  IU Self-Monitoring Evaluation...........	  4-18
           4.'3.5  Control Authority Enforcement  Initiatives	  4-18
           4.3.6  Narrative Coranents	  4-21

     4.4   SUMMARY EVALUATION OF CONTROL AUTHORITY PRETREATMENT
           PROGRAM.•>««•••«««««•«»«*•*•••««••«.•«><>•«•••****••««*••«.  4—2*

     4.5   SUPPORTING DOCUMENTATION	  4-22
                                                     ii

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                               TABLE OF CONTENTS
                                  (CONTINUED)
g.
     PRETREATMENT PROGRAM AUDIT CHECKLIST ..............................  5-1

     5.1   INTRODUCTION ..............................................
     5.2   OVERVIEW OF THE AUDIT CHECKLIST .............................  5-1

           5.2.1    Checklist Cover Page ............... . ........ ...'...,.  5-1
           5.2.2    Section I:  Control Authority Background
                   Information. ... ..................... . ....... .. .....  5-1
           5.2.3    Section II:  POTW Pretreatment Program Fact
                   Sheet ..............................................  5-1
           5.2.4    Section III:  Legal Authority and Control
                   Mechanism ..........................................  5-2
           5.2.S    Section IV:  Application of Pretreatment
                   Standards ..........................................  5-2
           5.2.6   Section V:  Compliance Monitoring ...................  5-2
           5.2.7   Section VI:  Enforcement ............. .. .............  5-2
           5.2.8   Section VII:  Data Management and Public
                   Participation ............................. . ........  5-2
          5.2.9   Section VIII:   Program Resources ....................  5-2
          5.2.10  Section IXt POTW File Review ...... .................  5-3
          5.2.11  Section Xi   Evaluation and Summary ............... ...  5-3
          5.2.12  Supporting Documentation ............................  5-4

    5.3   AUDIT CHECKLIST
                                   TABLE
    2.1   INDUSTRIES SUBJECT TO CATEGORICAL PRETREATMENT STANDARDS .....  2-3
                                  APPENDICES



APPENDIX A - EPA MEMORANDA FROM J. WILLIAM JORDAN AND MARTHA PROTHFO
             Instructions For Completing Form 3560-3

APPENDIX B - SAMPLE FOLLOW-UP LETTER TO THE CONTROL AUTHORITY

APPENDIX* C - POTW PRETREATMENT PROGRAM FACT SHEET

APPENDIX D - NPDES COMPLIANCE INSPECTION REPORT FORM 3560-3
                                   iii
                                                                             1925

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-------
                                                                   VLB.25.
"Pretreatraent Compliance Monitoring and Enforcement Guidance" (for Publicly
Owned Treatment Works) dated July, 1986  (Printed September, 1986).  Table
of Contents only.

-------


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  PRETREATMENT COMPLIANCE MONITORING
       AND ENFORCEMENT GUIDANCE
OFFICE OF WftTER ENFORCEMENT AND PERMITS
             JULY 25, 1986
  U.S. ENVIRONMENTAL PROTECTION AGENCY
           401 M STREET, S.W.
         WASHINGTON, D.C. 20460

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-------
                         TABLE OF CONTENTS
                                                            Paqe
1.1  INTRODUCTION 	   1-1
2.1  INDUSTRIAL USER PRETREATMENT REQUIREMENTS 	  2-1

     2.1.1  Pretreatment Standards	  2-1
     2.1.2  Industrial User Reporting Requirements	  2-6
     2.1.3  Definition of Significant Industrial
              User 	  2-8
     2.1.4  Periodic Reports	,	  2-10


2.2  INDUSTRIAL USER SELF-MONITORH G FREQUENCIES	  2-12

     2.2.1  Establishing Industrial User Self-
              monitoring Frequencies	  2-12


3.1  GENERAL CONTROL AUTHORITY IMPLEMENTATION
       RESPONSIBILITIES 	  3-1

     3.1.1  Control of Industrial Dischargers Through
              Use of Permits, Contracts, etc	  3-1
     3.1.2  Procedures to Implement Responsibilities
              Cited in the General Pretreatment
              Regulations	  3-3
            3.1.2.1  Maintaining the Industrial User
                       Inventory 	*	  3-3
            3.1.2.2  Notification (to Industrial Users)  of
                       Applicable Pretreatment Standards
                       and Requirements	  3-4
     3.. 1.3  Providing Sufficient Resources to
              Implement the Program	'.	  3-6
     3.1.4  Developing and Enforcing Local Limits 	  3-7
     3.1.5  Additional Implementation Responsibilities ...  3-8


3.2  COMPLIANCE MONITORING BY A CONTROL AUTHORITY 	  3-10

     3.2.1  Regulatory Basis for Pretreatment Compliance
              Monitoring	.....	  3-10
     3.2.2  Compliance Monitoring of Regulated Industrial
              Facilities	  3-12
     3.2.3  Types of Inspection and Sampling Activities...  3-14
            3.2.3.1  Scheduled Inspection and Sampling
                       Activities	.....  3-14
            3.2.3.2  Unscheduled Inspection and Sampling
                       Activities	  3-15
            3.2.3.3  Demand Inspection and Sampling
                       Activities	  3-16

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3.2.4  Frequency of Compliance Monitoring
         Activities	
3.2.5  Inspection Procedures	
3.2.6  Control Authority Sampling of Industrial
         Facilities	
        3.2.6.1  Considerations in Preparing for
                   Sampling Activities	
        3.2.6.2  Guidelines for Approved Analytical
                   Procedures	
        3.2.6.3  Considerations in Sample Collection
                   and Analysis	
3.2.7  Followup Actions in Response to Inspections
         and/or Sampling of Industrial Users	
                                                             3-17
                                                             3-19

                                                             3-20

                                                             3-21

                                                             3-22

                                                             3-23

                                                             3-26
3.3  ENFORCEMENT PRINCIPLES AND MECHANISMS	  3-28
     3.3.1  Principles of an Enforcement Management
              System 	
            3.3.1.1  Responsibilities, Procedures,  and
                       Time frames	
            3.3.1.2  Industrial User Inventory Data	
            3.3.1.3  Collect and Dispense Information ...
            3.3.1.4  Conduct Sampling and Inspection
                       of lUs 	
            3.3.1.5  Compliance Screening 	,
            3.3.1.6  Enforcement Evaluation	
            3.3.1.7  Formal Enforcement and Followup .....
     3.3.2  Informal and Formal Enforcement Mechanisms ..
            3.3.2.1  Informal Notice to Industrial User ..
            3.3.2.2  Informal Meetings	,
            3.3.2.3  Warning Letter	-
            .3.3.2.4  Notices or Meetings to Show Cause ..
            3.3.2.5  Administrative Orders and Compliance
                       Schedules	
            3.3.2.6  Penalties	
            3.3.2.7  Termination of Service	
            3.3.2.8  Civil Suit for Injunctive Relief
                       and/or Civil Penalties 	
            3.3.3.9  Criminal Suit	
            3.3.2.10 Approval Authority and Public
                       Intervention 	
            3.3.2.11 Resources to Enforce the Program ...
                                                        3-28

                                                        3-29
                                                        3-30
                                                        3-31

                                                        3-33
                                                        3-34
                                                        3-35
                                                        3-37
                                                        3-38
                                                        3-40
                                                        3-40
                                                        3-41
                                                        3-41

                                                        3-42
                                                        3-42
                                                        3-43

                                                        3-44
                                                        3-45

                                                        3-46
                                                        3-48
3.4  RESPONDING TO INDUSTRIAL USER NONCOMPLIANCE
     3.4.1  Definition of Significant Noncompliance (SNC) .
     3.4.2  Publishing Lists of Industrial Users With
              Significant Violations	
     3.4.3  Enforcement Response Guide	
     3.4.4  Levels of Response	
     3.4.5  Factors  in Selecting the Appropriate Response ,
            3.4.5.1  Duration of the violation and Compli-
                       ance History of  the Industrial User
                                                        3-49

                                                        3-49

                                                        3-52
                                                        3-55
                                                        3-62
                                                        3-63

                                                        3-64
                                  ii

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                                                            Page
             3.4.5.2   Apparent  Good  Faith of Responsible
                        Industrial User  Personnel  	  3-65
             3.4.5.3   Noncompliance  That Causes Interference
                        or  Pass-Through	  3-66


 3.5  CONTROL AUTHORITY  RECORDKEEPING AND REPORTING TO
       APPROVAL AUTHORITY  	  3-67
     3.5.1   Recordkeeping  Requirements  	..	  3-67
     3.5.2   Reporting Requirements	  3-67
     3.5.3   Data  for  an Annual Pretreatment Program
              Report	  3-68


 LIST OF TABLES

     Table

     2-1  Industries  Subject to Categorical Pretreatment
             Standards 	  2-3

     2-2  Recommended Industrial Self-Monitoring  Frequencies
             During Initial Compliance Period  	  2-13

     3-1  Comparison: Significant Violation to
            Significant Noncompliance	  3-52

     3-2  Enforcement Response Guide 	  3-57

     4-1  Annual Report Elements	  3-68

     4-2  Pretreatment  Performance  Summary 	  3-70
APPENDICES

     A.  Example Reporting Procedures

     B.  Procedures for Inspections at Ir 'ustrial Facilities

     C.  Average Limitations

     D.  Reporting Requirements Currently Approved by the
         Office of Management and Budget (7/86)
                                iii

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19(2-

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                                                                   VLB.26,
"Interim Guidance on Appropriate Implementation Requirements in
Pretreatment Consent Decrees," dated December,5, 1986. Attachments
excluded.

-------

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C. 20460
                          PEC  5 I9S6
                                                       AM>l«JMPI |.\sr
                                                        MOM TOR ISO
MEMORANDUM
SUBJECTS  Interim Guidance on Appropriate Implementation
          Requirements in Pretreatment Consent Decrees

FROM:
TOs
          Glenn L. Unterberger
          Associate Enforcement Counsel
            for Water
          J. William Jordan, Director
          Enforcement Division, OWEP
          Regional Counsels
          Water Management Division Directors
          Regions I - X
     This memorandum provides interim guidance for pretreatment
program implementation provisions which should be included in
all future municipal pretreatment consent decrees.  This interim
guidance should provide national consistency for court-ordered
pretreatment implementation.  This guidance may be expanded to
include provisions developed by the Workgroup on Local Program
Implementation.

Background

     During the past two years, the Agency has launched the first
and second wave pretreatment initiatives against POTWs that
failed to develop local pretreatment programs, and has provided
the Regions with a "Guidance on Obtaining Submittal and Implemen-
tation of Approvable Pretreatment Programs", September 20, 1985
and the "Pretreatment Compliance Monitoring and Enforcement
Guidance" July 25, 1986, for POTWs with approved pretreatment
programs.  The latest Agency focus in the pretreatment area is
on implementation of approved programs.  Pretreatment cases
against POTWs generally fall into two categories:1
*  An exception to these two categories are cases against POTWs
under Section 309(f) for failure to take appropriate action
against an industrial user that is discharging into the POTW in
                                                                  19(7

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                             - 2 -
     1. Failure to develop and obtain approval of pretreatment
        programs.  (The majority of these cases have already
        been brought; however, a number of consent decrees
        remain to be negotiated.)

     2. Failure to properly implement approved programs;

     For each type of case, a consent decree which concludes
an individual case should contain provisions which require both
implementation of the approved program and implementation status
reports.  The reporting requirements in the decree should
provide sufficient information to allow EPA or a court to
assess the adequacy of implementation activities.  Stipulated
penalties should attach to the failure to comply with definitive
requirements such as the failure to report*

Implementation Requirements

     At a minimum, the POTW should be required by the consent
decree to do the following:

     1. Implement the approved pretreatment program.

     2. Inspect all significant lUs (defined as all categorical
        industrial users and any user which discharges over
        25,000 gallons of process water or contributes 5% of
        the dry weather hydraulic or organic capacity of the
        plant or has a reasonable potential to adversely affect
        the POTW treatment plant) within six months of decree
        entry.

     3. Submit serai-annual (or more frequent) implementation
        status reports beginning within six months of entry of
        the decree which supply, at a minimum, the following
        information:

        a) an updated list of significant industrial users and
           the limits that apply to each (whether based on local,
           categorical or prohibited limits); and

        b) an updated list of all waste discharge permits or
           equivalent instruments issued;
1 (Continued)
violation of Section 307(d) of the Clean Water Act.  Such
actions may be brought whether or not a POTW is otherwise
required to have a pretreatment program.  Although 309(f)
provisions are not discussed in this guidance, some of the
provisions contained herein may be appropriate in settling
309(f) cases as well.
                                                                 -,H \g

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                              - 3 -
         c) an updated list of local pretreatment  limits;

         d) a list of all lUs  inspected,  monitored and sampled
            since the date of  program approval,  together with
            a copy of all inspection reports;

         e) a brief statement  describing  whether each'IU
            (including categorical  lUs) has  continuously complied
            with its pretreatment requirements during the
            reporting period.   For  categorical IOs, include the
            dates of receipt of Baseline  Monitoring Reports, 90
            day compliance reports  and semi-annual reports.  For
            each IU out of compliance, include a descriptive
            summary of the violation,  the cause, duration
            and reason for noncompliance; and

         f)  a descriptive summary for  each non-complying IU of
            any efforts made by the POTW  to  bring  that IU into
            compliance,  a justification for  any  lack of appropriate
            enforcement and a  statement as to whether the IU is
            now in compliance.

     The consent decree should also contain a provision for a
sufficient period of court oversight, i.e., approximately one
year when  implementation is the only  issue.

Enforcement Response Procedures

     In addition to  the above  minimum requirements, we recommend
that, whenever possible,  the decree require the POTW to develop
and submit  written Enforcement Response  Procedures (ERP) within
a specific  period of time for  review  and approval by EPA.
These response procedures should establish  a timeframe for
determining what  action is  appropriate for  each violation,
describe a  range  of  actions appropriate to  different types of
violations, and  describe  how the control authority will document
its decisions.  These procedures,  once formulated and approved,
should serve as  the  POTW's  operating  enforcement  criteria.  The
violation of the  criteria by an IU should then trigger specific
enforcement responses.  Through the July 25, 1986 guidance,
the Agency has encouraged all  POTWs with pretreatment programs
to develop  such  response  procedures.  These procedures provide
a basis to  evaluate  compliance with the requirements to enforce
pretreatment standards.   Where  an  ERP is required, the semi-
annual report should indicate whether the POTW is 'following the
procedures.

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                             . 4 -
Permit Modification

     Where the State is the permitting authority, you may also
wish to include a provision in the consent decree that'the
State "will move to modify the POTW's permit to include pretreat-
ment implementation as quickly as possible.

     Attached are examples of the kind of language that should
be included in all pretreatment consent decrees.  Part A includes
language incorporating minimum requirements normally necessary
for Headquarters consent decree approval.  Part B includes
additional recommended provisions.

     If you have any questions regarding this guidance or
would like copies of consent decrees including recommended
provisions, please contact Elyse DiBiagio-Wood of OECM/Water at
475-8187.  If you have questions regarding the POTW guidance or
would like copies, please contact Ed Bender of OWEP at 475-8331.


Attachment

cc:  Susan Lepow, OGC
     David Buente, DOJ
     Jim Elder
     Martha Prothro                                          f
     OECM/Water Attorneys

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                                                                  VLB.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).


-------

-------
                                                                  VLB.28.
"Guidance Manual on the Development and Implementation of Local Discharge
Limitations Under the Pretreatment Program",  dated November 1987.   Indices
and Tables of Contents only.
                                                                      92)

-------

-------
       United States
       Environmental Protection
       Agency
Office of Water Enforcement
and Permits
Washington, D.C. 20460
November 1987
&ERA  Guidance Manual on the
       Development and
       Implementation of Local
       Discharge Limitations Under
       the Pretreatment Program

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                               TABLE OF CONTENTS
Volume I
1.   INTRODUCTION ..........................   l-l

     1.1  PURPOSE OF THIS MANUAL  ..................   1-1

     1.2  BACKGROUND ................. ...... '.   1-2

          1.2.1  Vhat Are Local Limits and Why Are They
                   Important ? ...................   1-2
          1.2.2  Studies Supporting the Need for Local
                   Limits ....... .......  ........   1-3
          1.2.3  The Need for EPA Guidance to Support POTV
                   Local Limits Development .....  ........   1-4

     1.3  LEGAL BASIS FOR LIMITS DEVELOPMENT ............   1-5

          1.3.1  Specific Statutory/Regulatory Background ......   1-5

                 1.3.1.1  Pretreatment Regulations  ..... ......   1-5
                 1.3.1.2  Implementation of General Prohibitions  .  .   1-7
                 1.3.1.3  Implementation of the Specific
                            Prohibitions ..............   1-9

          1.3.2  Other Considerations Supporting Local Limits
                   Development .  ..................   1-10

          1.3.3  Relationship of Local Limits to- Categorical
                   Standards ....................   1-11

     1.4  POTV DEVELOPMENT OF LOCAL LIMITS .......... ...   1-11

          1.4.1  Overview of the Local Limits Process ........   1-12
          1.4.2  Planning Considerations in Local Limits
                   Development ...................   1-15

                 1.4.2.1  Updating Local Limits ...........   1-15
                 1.4.2.2  Ongoing Monitoring Program  ........   1-17
                 1.4.2.3  Selection of Alternative Allocation
                            Methods .................   1-17
                 1.4.2.4  Use of an Appropriate Control
                            Mechanism ........  ......  .  .   1-18
                 1.4.2.5  Public Participation ...........   1-19

     1.5  ORGANIZATION OF THE MANUAL ...... . . .........   1-19

2.   IDENTIFYING SOURCES AND POLLUTANTS OF CONCERN  ..... '. .  .  .   2-1

     2.1  CONCERNS TO BE ADDRESSED . . ...............   2-1

         .2.1.2  Vater Quality Protection ..............   2-2
          2.1.3  Sludge Protection . ................   2-3

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                        TABLE OF CONTENTS (Continued)
          2.1.4  Operational  Problems	   2-3
          2.1.5  Vockar  Health  and  Safety	.   2-4
          2.1.6  Air  Emissions	   2-5

     2.2   CHARACTERIZING INDUSTRIAL DISCHARGES  . .	'	   2-9
                                                                         i
          2.2.1  Industrial User  Discharges   .  .	  .  .  .   2-9
          2.2.2  RCRA Hazardous Wastes	   2-12
          2.2.3  CERCLA  Wastes	   2-13
          2.2.4  Hauled  Vastes	   2-14

     2.3   REVIEW OF ENVIRONMENTAL PROTECTION CRITERIA AND
            POLLUTANT EFFECTS DATA 	   2-15

          2.3.1  Environmental  Protection Criteria and
                   Pollutant  Effects Data	   2-16

     2.4   MONITORING  OF  IU DISCHARGES,  COLLECTION SYSTEM,
            AND  THE TREATMENT PLANT TO  DETERMINE POLLUTANTS
            OF CONCERN	    ...    2-17

     2.5   MONITORING  TO  DETERMINE ALLOWABLE HEADWORKS LOADINGS .  .  -    2-23

          2.5.1  Sampling at  the  Treatment Plant	    2-23
          2.5.2  Establishing Monitoring Frequencies . 	    2-24
          2.5.3  Establishing Sample Type, Duration, ana
                   Timing of  Sample Collection ... 	    2-28

     2.6   TOXICm TESTING	•    2-29

          2.6.1  Toxicity Reduction Evaluations (TREs) 	  •    2-30

3.   LOCAL LIMITS  DEVELOPMENT B*  THE ALLOWABLE HEADWORDS
       LOADING METHOD	    3-1

     3.1  GENERAL METHODOLOGY	    3-1

     3.2  DEVELOPMENT OF MAXIMUM ALLOWABLE HEADWORKS LOADINGS. ...    3-2

          3.2.1  Allowable Headvor  i Loadings Based on
                   Prevention of Pollutant Pass Through	    3-3

                 3.2.1.1  Compliance With NPDES ^ermit Limits. ...    3-3
                 3.2.1.2  Compliance with Water Quality  Limits ...    3-4

          3.2.2  Allowable Headwords Loadings Based on
                   Prevention of Interference with POTW
                   Operations	    3-8

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                        TABLE OF CONTENTS (Continued)
                                                                       Page
                 3.2.2.1  Prevention of Process Inhibition 	    3-8
                 3.2.2.2  Protection of Sludge Quality .  	    3-11
                 3.2.2.3  EP Toxicity Limitations	    3-14
                 3.2.2.4  Reduction of Incinerator Emissions ....    3-15

          3.2.3  Comparison of Allowable Readvorks Loadings	    3-16

          3.2.4  Representative Removal Efficiency Data	    3-17

                 3.2.4.1  Representative Removal Efficiencies
                            Based on Mean Influent/Effluent
                            Data	    3-18
                 3.2.4.2  Representative Removal Efficiencies
                            Based on Deciles	    3-18
                 3.2.4.3  Potential Problems in Calculating
                            Removal Efficiencies 	    3-20
                 3.2.4.4  Literature Removal Efficiency Data ....    3-24

     3.3  PROCEDURE FOR ALLOCATING MAXIMUM ALLOWABLE
            HEADVORKS LOADINGS 	    3-26

          3.3.1  Building in Safety Factors	    3-27
          3.3.2  Domestic/Background Contributions 	    3-28
          3.3.3  Alternative Allocation Methods	    3-30

                 3.3.3.1  Conservative Pollutants. .....;.;.    3-31
                 3.3.3.2  Nonconservative Pollutants 	    3-37

     3.4  REVIEWING TECHNOLOGICAL ACHIEVABILITY	    3-38
     3.5  PRELIM	    3-38

4.   LOCAL LIMITS DEVELOPMENT TO ADDRESS COLLECTION SYSTEM
       PROBLEMS	    A-l

     4.1  IMPLEMENTATION OF SPECIFIC PROHIBITIONS	    4-1

          4.1.1  Fire and Explosion	    4-1

                 4.1.1.1  Lover Explosive Limit  (LEL)
                            Monitoring	    4-2
                 4.1.1.2  Sample Headspace Monitoring. .	    4-3
                 4.1.1.3  Flashpoint Limitation	    4-4
                 4.1.1.4  Industrial User Management Practice
                            Plans	    4-5
                 4.1.1.5  Screening Technique  for Identifying
                            Flammable/Explosive  Pollutant
                            Discharges	'.  . . .    4-6

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                        TABLE OF CONTENTS (Continued)
                                                                      Pagl
          4.1.2  Corrosion	•	    4-9
          4.1.3  Flov Obstruction	  .    4-12
          4.1.4  Temperature .	    4-12

     4.2  WORKER HEALTH AND SAFETY .	    4-13

          4.2.1 Readspace Monitoring	    4-13
          4.2.2  Industrial User Management Practice Plans .....    4-15
          4.2.3  Screening Technique for Identifying Fume
                   Toxic Pollutant Discharges	    4-15
          4.2.4  POTV Worker Safety	    4-19

5.   INDUSTRIAL USER MANAGEMENT PRACTICES. .	    5-1

     5.1  INTRODUCTION	  .    5-1
     5.2  CHEMICAL MANAGEMENT PLANS	    5-3
     5.3  SPILL CONTINGENCY PLANS	    5-6
     5.4  BEST MANAGEMENT PRACTICES PLANS	  .    5-8.
     5.5  LEGAL AUTHORITY CONSIDERATIONS ..... 	    5-10
     5.6  APPROVAL OF INDUSTRIAL USER MANAGEMENT PLANS 	    5-10

6.   CASE-BY-CASE PERMITS - BEST PROFESSIONAL JUDGMENT (BPJ) ....    6-1

     6.1  INTRODUCTION		    6-1
     6.2  APPLICATION OF BPJ	    6-1
     6.3  APPROACHES TO BPJ	    6-2

          6.3.1  Existing Permit Limits for Comparable
                   Industrial Facilities 	    6-3
          6.3.2  Demonstrated Performance of the Industrial
                   User's Treatment System  	    6-5
          6.3.3  Performance of Treatment Technologies as
                   Documented in Engineering Literature
                   (Treatability)	    6-6
          6.3.4  Adapting Federal Discharge Standards	    6-10
     6.4  REGULATORY CONSIDERATIONS FOR DEVELOPING BPJ LOCAL LIMITS.

          REFERENCES
6-12

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LIST OF TABLES
Table
4HPP"l>IPIIIIIBBIMi
1-1

3-1

3-2
3-3
3-4
3-5
3-6

3-7
3-8

3-9

3-10

3-11

3-12

3-13
4-1
4-2
4-3
4-4
5-1
.6-1

1
Comparison of Features Associated Vith Categorical
Standards and Local Limits 	
EPA Ambient Vater Quality Criteria for Protection of
Aquatic Life 	 	
Activated Sludge Inhibition Threshold Levels 	
Trickling Filter Inhibition Threshold Levels 	
Nitrification Inhibition Threshold Levels ........
Anaerobic Digestion Threshold Inhibition Levels 	
Federal and Selected State Sludge Disposal Regulations
and Guidelines for Metals and Organics. .' 	
EP Toxicity Limitations 	 .
Nickel Levels in Chattanooga POTV Influent, Effluent,
and Sludge (2/11-2/20/80) 	
Priority Pollutant Removal Efficiencies Through
Primary Treatment 	
Priority Pollutant Removal Efficiencies Through
Activated Sludge Treatment 	
Priority Pollutant Removal Efficiencies Through
Trickling Filter Treatment 	 	
Priority Pollutant Removal Efficiencies Through
Tertiary Treatment 	 	
Typical Domestic Vastevater Levels 	 	
Closed Cup Flashpoints of Specific Organic Chemicals. . .
Discharge Screening Levels Based on Explosivity . . .
Henry's Lav Constants Expressed in Alternate Units. . . .
Discharge Screening Levels Based Upon Fume Toxicicy . . .
List of Commonly Used Solvents 	 	 	 	
Comparison of Combined Metals Data Base Vith Metal
Finishing Data Base . 	 	
Page

. . 1-20

. . 3-39
. . 3-44
. . 3-46
3-47
. . 3-48

. . 3-50
, . • 3-53

. • . 3-54

, . .. 3-55

, . . 3-56

. . 3-57

. . 3-58
. . 3-59
, . . 4-22
, . . 4-23
, . 4-24
, . . 4-26
. . . 5-11

. . . 6-15

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                               LIST OF FIGURES
Figure                                                -                Page

1-1  Overview of Local Limits Process	    1-13

2-1  Simplified Conceptual Flow Diagram for Determining
       Pollutants of Concern	    2-18

2-2  Detailed Flow Sheet for Chemical.Specific Approach to
       Identifying Pollutants of Concern to Treatment
       Plant Operations	    2-20

2-3  Toluene Loading to the Chattanooga, Tennessee POTV	    2-26

2-4  Example Approach for a Municipal THE	    2-32

3-1  Example Distribution Plot of Removal Efficiency Data 	    3-21

3-2  Commonly Used Methods to Allocate Maximum Allowable
       Industrial Loadings	3-32

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Volume II;  Appendices

Appendix                                                                Page

  A       REFERENCES TO DOCUHENTS WHICH PROVIDE GUIDANCE TO POTWs  IN
          DEVELOPING TECHNICALLY BASED LOCAL LIMITS                     A-l

  B       AUGUST 5, 1985 EPA GUIDANCE MEMO ON LOCAL LIMITS
          REQUIREMENTS FOR POTV PRETREATMENT PROGRAMS                   B-l

  C       MATRIX OF POLLUTANT OCCURRENCE IN INDUSTRIAL WASTESTREAMS     C-l

  0       CURRENTLY AVAILABLE EPA DEVELOPMENT DOCUMENTS                 D-l

          -  Publications Available from the Industrial Technology
             Division                                                   D-2

          •  Publications Available from the Government Printing
             Office (GPO) and/or the National Technical Information
             Service (NTIS)                                             D-ll

  £       NOTIFICATION OF HAZARDOUS WASTE ACTIVITY, RCRA                E-l
          FORM 8700-12

  F       A SUMMARY OF POTV RESPONSIBILITIES UNDER THE RESOURCE
          CONSERVATION AND RECOVERY ACT (RCRA)                      .    F-l

  G       PHYSICAL/CHEMICAL CHARACTERISTICS OF TOXIC POLLUTANTS         G-l

          -  Glossary of Terms                  '                        G-l

          -  National Fire Protection Association (NFPA)
             Classification Scheme (45)                                 G-2

          -  Table G-l:  Hazard Classifications and Vapor Phase
                         Effects                                        G-4

          -  Table G-2:  Fate of Pollutants in POTVs                    G-ll

          -  Table G-3:  Environmental Toxicity and Criteria            G-16

  H       TOXIC ORGANIC POLLUTANTS                                      H-l

          -  Clean Water Act Priority Pollutants                    •    H-2

          -  RCRA Appendix IX List                                      H-5

  I       LOCAL LIMITS DERIVATION EXAMPLE                               1-1

  J       SAMPLE HEADSPACE MONITORING ANALYTICAL PROCEDURE              J-l

  K       EXAMPLE FORMAT FOR AN IU ASPP PLAN                            K-l

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                        LIST OF APPENDICES (Continued)
Appendix
          TREATABILITY OF TOXIC POLLUTANTS

          -  Table L-l:  Performance of Treatment Technologies in
                         Removing Metals and Cyanide

          -  Table L-2:  Performance of Tretment Technologies in
                         Removing Polynuclear aromatic Hydrocarbons

          -  Table L-3:  Performance of Treatment Technologies in
                         Removing Aromatics

          -  Table L-A:  Performance of Treatment Technologies in
                         Removing Phenols

          •  Table L-5:  Performance of Treatment Technologies in
                         Removing Ralogenated Aliphatics
          -  Table L-6
          -  Table L-7
          -  Table L-8
          -  Table L-9
Performance of Treatment Technologies in
Removing Phthalates

Performance of Treatment Technologies in
Removing Nitrogen Compounds

Performance of Treatment Technologies in
Removing Oxygenated Compounds

Performance of Treatment Technologies in
Removing Pesticides
           -  Limitations  to  the Application of Organic Chemicals
             Treatment Technologies

           REFERENCES
Page

L-l


L-l


L-7


L-13


L-l 8


L-22


L-31


L-34


L-35


L-36


L-37

M-l

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                                                                   VLB. 29,
"GUIDANCE ON BRINGING ENFORCEMENT ACTION AGAINST POTW'S FOR FAILURE TO
IMPLEMENT APPROVED PRETREATMENT PROGRAMS", dated August 4, 1988.

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%-*«?
       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
    y                WASHINGTON. O.C. 20460
                            AU3  4
   MEMORANDUM
             Guidance on Bringing Enforcement Actions Against
             POTWs for Failure to Implement Pretreatment
             Programs
             Glenn L. Unterberger
             Associate Enforcement Counsel
               for Water

SUBJECT:
FROM:
             J. William Jordan   *
             Enforcement Division Director,
             Office of Water Enforcement and Permits

   TO:        Regional Counsels
             Regional Water Management Division Directors
             Susan Lepow, Associate  General  Counsel  for Water
             David Buente, Chief,  Environmental Enforcement, DOJ

        Attached is a final guidance docunK :t that explains  the
   legal and policy considerations involved  in deciding whether
   and how EPA shall pursue enforcement actions under the Clean
   Water Act against POTWs that have failed  to adequately
   implement their pretreatment programs.1  A model  judicial
   complaint and model consent decree for failure to implement
   cases are included with this Guidance.2  We will  be preparing
   model administrative pleadings for these  cases in the  near
   future.
        1  This guidance document was distributed in draft for
   comment on February 11, 1988 (the draft was marked "January
   1988 Regional Comment Draft).   We received comments from
   seven regions, two headquarters' offices,  and the Department
   of Justice.  The comments weie generally favorable and the
   Guidance has been revised pursuant to those comments.

        2  Drafts of the model judicial complaint and consent
   decree were sert to several regions and the Department of
   Justice for review in May 1988.  We received helpful comments
   and the enclosed models have been revised accordingly.

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                            - 2 -
     How that virtually all Federally required local
pretreatment programs have been approved, EPA is placing a
high priority on assuring that programs are fully imple-
mented.  Thus, EPA Regions and NPDES States now record on the
Quarterly Noncompliance Report, pursuant to the definition of
Reportable Noncompliance for POTW pretreatment program
implementation, those POTWs that have failed to adequately
implement their pretreatment program requirements.3

     Given finite resources, EPA enforcement actions,will not
be appropriate for all of the POTWs that are listed on the
QNCR for Reportable Noncgrapliance with pretreatment implemen-
tation requirements.  The enclosed guidance document is
intended to help EPA Regions select the best cases for
enforcement in this area.

     Enforcement actions against POTWs for failure to
implement will be a high priority in FY 1989.  Consistent
with the attached guidance, we encourage all Regions to focus
resources on POTWs that have failed to adequately implement
their pretreatment programs.

     We encourage all Regions to discuss any potential
enforcement actions in this area with us.  Discussion of
potential cases for failure to implement, should be directed
to David Hindin, OECM-Water, (LE-134W), FTS 475-8547, or Ed
Bender, OWEP, (EN-338), FTS 475-8331.

Attachment

cc: Ed Reich
    Jim Elder
    Paul Thompson
    Tom Gallagher
    Cynthia Dougherty
    ORC Water Branch Chiefs
    Regional Water Management Compliance Branch Chiefs
    Regional Pretreatment coordinators
    Assistant Chiefs, DOJ Environmental Enforcement
    OECM Water Attorneys
      3  See, U.S. EPA, Office of Water Enforcement and
Permits, Guidance for Reporting and Evaluating POTW Noncom-
pliance with Pretreatment Implementation Requirements,
September 1987.

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    GUIDANCE ON BRINGING ENFORCEMENT ACTIONS AGAINST POTWS
        FOR FAILURE TO IMPLEMENT PRETREATMENT PROGRAMS
                        August 4, 1988
                       TABLE OF CONTENTS
  »

 I.   EXECUTIVE  SUMMARY  	     1

 IX.  INTRODUCTION:   POTW Implementation as  the  Key to an
          Effective National Pretreataent Program     .  .     4
     A.  Purpose  of  this Guidance	.  .     4
     3.  Related  Pretreatment Guidance  Documents   ....     5
     C.  Background  on the National  Pretreatment  Program     6

 III. LEGAL  BASIS FOR  ENFORCING POTW PRETREATMENT PROGRAM
       IMPLEMENTATION:   Look First  to  a POTW's Permit  .     8
     A.  Statutory Authority for Requiring  POTW
          Pretreatment Programs  	     8
     B.  Civil  Judicial Enforcement  Authority 	     9
     C.  Administrative Enforcement  Authority 	    12
     D.  Criminal Penalty Authority  ....  	    13

 IV.  IDENTIFYING  POTW  PRETREATMENT IMPLEMENTATION
     VIOLATIONS  LIKELY TO MERIT AN  ENFORCEMENT RESPONSE:
       Evaluating a POTW's  Actions  In  Light of Allowed
         Flexibility  and Impact of  the Violation ....    14
     A.  Identifying Potential  Violations 	    14
     B.  Determining the Extent To Which Identified
          Violations  Warrant an Enforcement Response:
          How  Strong  Are EPA's Claims?  	    16
          1. Evaluating Unreasonable POTW  Action Under
               Flexible Implementation Requirements   .  .    16
          2. Evaluating the Impact  or  Severity of
               Identified Violations 	    18
               a.   Inadequate  Program  Implementation
                    Causing POTW  Effluent  Limit
                    Violations	    18
               b.   Inadequate  Implementation Not Causing
                    Effluent Violations 	  .    19

V. ENFORCEMENT OPTIONS  FOR  FAILURE  TO  IMPLEMENT   ....    20
     A.  General  Considerations for  Choosing an
          Appropriate Enforcement Response 	    20
     B.  Penalty  Assessments .  .	 .....    22
     C.  Joining  Industrial  U^ers  (IUs>  and States ...    23
ATTACHMENT A:
MODEL FORM FOR LISTING AND EVALUATING
PRETREATMENT IMPLEMENTATION VIOLATIONS

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       ATTACHMENT  B:
       ATTACHMENT  C:
MODEL CIVIL JUDICIAL COMPLAINT FOR
PRETREATMENT IMPLEMENTATION CASE
MODEL CIVIL JUDICIAL CONSENT DECREE  FOR
PRETREATMENT IMPLEMENTAT"^N CASE
                                      ii
"< "AT""'
/-. X

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                        LIST OF TABLES


TABLE 1
DEFINITION OF REPORTABLE NONCOMPLIANCE
15a
TABLE 2
EXAMPLES OF VIOLATIONS BASED ON A REASONABLE
INTERPRETATION OF THE PRETREATMENT IMPLEMENTATION
REGULATIONS WHEN INCORPORATED BY REFERENCE INTO
THE PERMIT  	
                                                     16a
TABLE 3
GENERAL GUIDELINES. FOR EVALUATING THE SEVERITY OF
PRETREATMENT IMPLEMENTATION VIOLATIONS	
20a
                            iii

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n
             Failure to Implement Guidance                          page 1
             (8/4/88)
                                 I.  EXECUTIVE SUMMARY
     This guidance document explains the legal and pc.icy
considerations involved in deciding whether and how EPA shall
pursue Federal enforcement responses under the Clean Water
Act against POTWs that have been indentified on the Quarterly
NonCompliance Report as having failed to adequately implement
their pretreatment programs.

     Municipal pretreatment programs must be fully
implemented in order to effectively control industrial
discharges of toxic, hazardous, and concentrated conventional
wastes into public sewers and, ultimately, our rivers and
lakes.  Now that EPA has approved virtually all Federally
required local pretreatment programs, EPA is placing a high
priority on assuring local program implementation.  Thus, EPA
Regions and NPDES States now record on the Quarterly Noncom-
pliance Report those POTWs that have failed to adequately
implement their pretreatment program requirements.  EPA
enforcement actions are necessary to ensure that POTWs fully
implement their pretreatment programs.  Indeed, this guidance
document is intended to help EPA pursue enforcement actions
in this area and establish a strong enforcement presence so
as to assure proper program implementation on a broad scale
from POTWs.

     The decision to initiate an enforcement action against a
POTW for its failure to adequately implement its pretreatment
program requires a careful analysis of the underlying pre-
treatment program requirements, the legal basis for the
violations and the seriousness of the violations.  This is
particularly true because of the differing implementation
requirements which may apply to individual POTWs.  In addi-
tion, the flexibility which many implementation requirements
inte:-.cionally allow necessitates the use of considerable
judgment in deciding whether to find a POTW in violation.

     From a legal and equitable perspective, EPA is in the
strongest position to enforce pretreatment program implemen-
tation requirements that are contained in a POTW's NPOES
permit, either directly within the pages of a permit or
indirectly through a permit condition that r*qi4ros a POTW to
implement its approved program and/or comply with the
pretreatment regulations, 40 CFR 403.

     The following approach should be useful in identifying
potential pretreatment implementation violations for possible
enforcement r=--cnses.  First, examine the POTW's permit to
identify all £.• a treatment activities the POTW is required .to
implement.  Second, review all pretreatment program annual
reports that the POTW has submitted since its program was

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Failure to Implement Guidance
(8/4/88)
page 2
approved.  All pretreatment audits and  inspections should
also be reviewed to  identify potential  violations.

     Third, compile  a  list of all pretreatment  implementation
requirements applicable to the  POTW which available  informa-
tion indicates the POTW may have violated.   (See Tables  1 and
2  for possible examples,  such as failure to  issue industrial
user (IU) control mechanisms, failure to establish necessary
local limits, or failure  to enforce IU  pretreatment  require-
ments adequately.)   Fourth, in  some cases, send a §308 letter
to obtain more complete information necessary to support an
enforcement case.

     Once all potential violations have been identified, each
violation must be evaluated to  determine the strength of
EPA's claim of violations in light of the facts and  any
imprecision in the way the underlying pretreatment implemen-
tation requirements  define compliance.

     Despite the flexibility a  POTW may have in implementing
some pretreatment requirements, the fundamental yardstick for
measuring compliance is that a  POTW must act reasonably  by
implementing its pretreatment requirements consistent with an
effective pretreatment program: i.e., a program that will
.prevent interference and  pass through,  and improve oppor-
tunities to recycle  municipal and industrial wastestreams and
sludges (see 40 CFR  403.2).  EPA should evaluate the reason-
ableness of the POTW's implementation activity  in light  of
both the flexibility afforded by the applicable requirements
and the impact or severity of the potential  violations.
Preparing a table similar to*the one in Attachment A for
evaluating program implementation violations should  be
helpful in making enforcement decisions in this atec.

     As a general rule, the strongest enforcement case
against a POTW for failure to implement its  pretreatment
program will contain POTW effluent limit violations  attrib-
utable to inadequate implementation and a number of  related
POTW pretreatment implementation violations. .Such cases are
compelling because they indicate that a POTW's  implementation
of its program has been so deficient that IU discharges  have
not been adequately  controlled  and these discharges  have
caused a POTW to exceed the effluent limits  in  its permit  (or
otherwise violate its  permit).  This type of case may very
well be appropriate  for civil judicial  enforcement.

     The lack of POTW  permit  effluent discharge violations
 (attributable to inadequate pretreatment implementation) does
not mean tha*  ""?? should  overlook  or trivialize other types  .
of implementation violations.   Inadequate pretreatment
 implementation still could  result,  for.  example, in the POTW
discharging  increased  loadings  of  pollutants (including

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Failure to Implement Guidance                          page 3
(8/4/88)


toxics) not yet controlled by its permit, or in increasing
the risk of future effluent limit violations.  Thus, for
example, a POTW that has failed to issue control mechanisms
to a number of its significant XUs in direct violation of a
permit requirement to do so is committing a serious violation
that may very well be subject to an enforcement response.

     Other cases in which a POTW is running a sloppy
pretreatment program, with clear implementation violations,
but in which there is so'far no evidence of interference or
pass through problems, may be appropriately dealt with by
issuance of a traditional compliance administrative order or
by assessment of an administrative penalty, or by initiation
of a civil judicial action.  EPA's pursuit of a penalty in
these circumstances should have great value in demonstrating
to POTWs that they must fully implement their pretreatment
programs now and not wait until after effluent violations
occur.1  Such enforcement actions should help EPA send the
message that prevention is the goal of pretreatment programs,
not damage control after POTW effluent limits violations or
other unwarranted discharges have occurred.

     If an IU has caused, interference or pass through at the
POTW, or has violated local limits, categorical standards or
other pretreatment requirements, EPA may bring a joint action
against both the IU and the POTW.  The importance of joining
an- IU in an enforcement action is increased if an IU is a
primary cause of a POTW's effluent limit violations, if an IU
has obtained a significant economic benefit from its noncom-
pliance, or if an IU needs to install pretreatment equipment
at its facility, especially if a POTW is unwilling or unable
to force an IU to install the necessary equipment.

     A model judicial complaint and- consent decree fcr pre-
treatment failure to implement cases are included as attach-
ments to this guidance.  Model administrative pleadings will
be prepared shortly for Regional distribution.


Disclaimer
     This guidance document is intended solely for the use of
Agency enforcement personnel.  This guidance creates no
rights, is not binding on the Agency, and the Agency may
change this guidance without notice.
     1  Instructions on how to determine settlement penalties
using the standard CWA Civil Penalty Policy criteria of
economic benefit, gravity and appropriate adjustments are
contained in EPA's draft Guidance, "Penalty Calculations for
a POTW's Failure to Implement It's Pretreatment Program,"
distributed for Regional comment .on August 1, 1988.

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Failure to Implement Guidance                          naae 4
(8/4/88)                                               * *


   II. INTRODUCTION:  POTW Implementation as the Key to an
          Effective National Pretreatment Program

A. Purpose of this Guidance

     This document provides guidance on how and under what
circumstances EPA should pursue administrative and judicial
enforcement actions1 against Publicly Owned Treatment Works
(POTWs) for violations of their pretreatment program imple-
mentation obligations arising under the Clean Water Act.

     Local pretreatment programs must be fully implemented in
order to effectively control industrial discharges of toxic,
hazardous, and concentrated conventional wastes into public
sewers and, ultimately, our rivers and lakes.  Now that EPA
has approved virtually all Federally required local pretreat-
ment programs, EPA is placing a high priority on assuring
local program implementation.  Thus, EPA Regions and NPDES
States now record on the Quarterly Noncompliance Report those
POTWs that have failed to adequately implement their pre-
treatment program requirements.  EPA enforcement actions are
necessary to ensure that POTWs fully implement their
pretreatment programs.

     National guidance is needed for bringing enforcement
actions against POTWs for their failure to adequately
implement their pretreatment.programs for four reasons.
First, the determination of whether a POTW is violating its
pretreatment program requirements, and whether such viola-
tions are serious, may involve careful, subtle judgments.
Second, even though the failure to adequately implement may
be clear, subtle legal issues may be involved in determining
the best way to frame the Government's cause of action.
Third, there is a need for national consistency to ensure
that POTWs and their industrial users receive a consistent
and strong message that pretreatment requirements must be
complied with and that violations will not be tolerated.
Fourth, pretreatment implementation cases are new and thus
there are neither settled nor litigated precedents to follow
in this area.

     This guidance document builds upon the Office of Water
Enforcement and Per&ic's (OWEP) definition of Reportable
Noncompliance for POTW pretreatment program implementation.2
EPA Regions and NPDES States use this definition of Report-
able Noncompliance to identify and list on the Quarterly
Noncompliance Report (QNCR) those POTWs that have failed to
      2  U.S. irA, OWEP.  Guidance for Reporting and
Evaluating POTW Noncompliance with Pretreatment Requirements.
September 1987.                             .

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                 0
Failure to Implement Guidance                          page 5
(8/4/88)
                  •

adequately implement their pretreatment program requirements.
Given finite resources, EPA enforcement actions will not be
appropriate for  all of the POTWs that are listed on the QNCR
for Reportable Noncompliance with pretreatment implementation
requirements.  This guidance document is intended to help EPA
Regions select the best cases for enforcement in this area
and thus establish a strong enforcement presence in order to
ensure full program implementation across the nation by local
POTWs.

B. Related Pretreatment Guidance Documents

     In addition to this guidance document, there are five
other EPA documents that are particularly relevant to
bring-. :g enforcement actions against POTWs for failure to
implement.  As indicated above, on September 30 1987, EPA
issued a guidance document that explains how POTW noncom-
pliance with pretreatment implementation requirements should
be evaluated and reported on the QNCR.  In short, today's
guidance document expands upon the September 1987 Reportable
Noncompliance guidance by detailing the considerations
involved in bringing an enforcement action against a POTW
listed on the QNCR pursuant to the definition of Reportable
Noncompliance.

     Another important document is OWEP's July 25, 1986
guidance, entitled, "Pretreatment Compliance Monitoring and
Enforcement Guidance"  (published as an SPA document in
September 1986).  This document provides POTWs with informa-
tion about their pretreatment implementation responsibilities
and describes the procedures POTWs should implement in order
to successfully  operate their approved pretreatment programs.
In short, the document recommends standards of perfor ince
for a good pretreatment program.

     Two other guidance documents, both issued on September
20, 1985, are also relevant to bringing failure to implement
cases.3  One document, entitled "Guidance on Obtaining
Submittal and Implementation of Approvable Pretreatment
Program,11 discusses EPA enforcement and permitting policy on
obtaining POTW pretreatment program submittal and implementa-
tion.  The other  document, entitled "Choosing Between Clean
Water Act 9309(b) and §309(f)  as a Cause of Action in
Pretreatment Enforcement Cases" describes the legal consid-
erations involved in choosing a cause of action in a
pretreatment case.
     3  Copip- ?f both documents are contained in the CWA
Compliance/En;arcement Policy Compendium, Volume II, §VI.B,
Copies of the Compendium are in OECM's new .computer data
base, the Enforcement Document Retrieval System.

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Failure to Implement Guidance
(8/4/88)
page 6
     Finally, on August 1, 1988, EPA distributed draft
guidance, for Regional review, that explains how the CWA
Civil Penalty Policy should be applied to cases in which a
POTW has failed to adequately implement its pretreatment
program.  This document, entitled "Penalty Calculations for a
POTW's Failure to Implement It's Pretreatment Program11
discusses the specific considerations involved in making
penalty policy calculations for failure to implement
violations.

C. Background on the National Pretreatment Program

     The National Pretreatment Program is an integral part of
the national goal to eliminate the discharge of pollutants
into the nation's waters  (§101 of CWA).  The National
Pretreatment Program's primary goal is to protect POTWs and
the environment from the detrimental impact that may occur
when toxic, hazardous or concentrated conventional wastes are
discharged into a sewage system.  With the retention of the
Domestic Sewage Exclusion in RCRA, and as RCRA regulations
for the disposal of hazardous waste in land fills become more
restrictive, the amount of hazardous waste entering POTWs is
expected to increase.4  Thus, the role of pretreatment in
controlling hazardous waste must also increase.

     The role of pretreatment in controlling toxic pollutants
must also increase as water quality-based toxics limits and
monitoring requirements become a more common provision in the
NPDES permits of POTWs.  In order to comply with water
quality-based toxics requirements, POTWs must fully implement
their pretreatment programs in order to effectively control
the discharge of toxic pollutants by industrial users.

     The governmental entity that primarily implements
pretreatment controls on  industrial users (lUs) is usually
the local municipality.  The municipality, through its POTW,
is called the Control Authority because it has the primary
responsibility to control the industrial wastes that are
     4  The domestic sewage exclusion in RCRA, 81004(27),
allows wastes which otherwise would be considered hazardous
and regulated under RCRA, to be exempted from RCRA regula-
tions when mixed with domestic sewage and discharged to a
POTW.  Pursuant to RCRA  §3018, EPA concluded that the
Domestic Sewage exclusion should be retained because the CWA
pretreatment program is  the best way to control hazardous
waste discharges to POTWs.

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                 0
 Failure to Implement Guidance
 (8/4/88)'
page 7
 entering its  sewer system.5   The Agency confirmed this
 responsibility that POTWs  have  in the preamble  to its final
 1978 General  Pretreatment  Regulations,  43  F.R.  27736, June
 26, 1978.   In that preamble  the Agency stated:

    • "Thus  in the  amendments to sections 309  and  40*2 of
     the Clean Water Act,.Congress assigned the primary
     responsibilities  for  enforcing national  pretreat-
     ment standards to the POTWs,  while providing the
     EPA or the NPDES  state  with the  responsibility to
     assure that local government fulfills this obliga-
     tion."  43 F.R. at 27740.

     U.S. EPA is performing  four basic  activities to ensure
 the success of the National  Pretreatment Program.  First,  EPA
 has been developing national categorical pretreatment stan-
 dards that  contain effluent  discharge limits  for  particular
 industrial  processes.

     Second,  EPA has promulgated the  General  Pretreatment
 Regulations,  40 CFR 403.   T.iese regulations,  inter alia.
 establish the criteria and procedures for the development,
 approval and  implementation  of  local  POTW pretreatment
 programs.   Section 403.5 of  these regulations prohibits the
 discharge of  pollutants, by  lUs,  into a POTW  that may cause
 interference  or pass through at a POTW.

     Third, EPA has issued guidance documents and conducted
 training seminars  in order to help POTWs understand, develop
 and' implement effective pretreatment  programs.

     Fourth,  EPA must  ensure that POTWs receive a strong
 message.that  full  implementation of their pretreatment
 programs is required and will be legally enforced.  With
 approximately 1500 approved  local programs, the push to get
 POTWs to develop pretreatment programs  is now largely
 complete.   The next step is  to  make sure that these local
 pretreatment  programs  are  fully implemented:  Approved local
 programs must not  be allowed to sit on  the shelf  and gather
 dust.  Lifeless rivers, poisoned water  supplies and crippled
     5  States also play an important role in the National
Pretreatment Program.  Once  . state r.is been authorized by
EPA to operate- the National Pretreatment Program in .its
territory/ the state is then responsible for-approving,
monitoring and regulating the performance of all the local
POTW pretreatment programs.  To date, 24 States have received
federal pretreatment authority.  These states are called
Approval Authorities.  For those states without an approved
pretreatment program, EPA is the Approval Authority.

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Failure to Implement Guidance                          page 8
(8/4/88)


sewage treatment plants are the possible consequences if
POTWs do not fully implement their pretreatment programs.

     in order to ensure that POTWs fully implement their
pretreatment programs, EPA intends to focus much of its
oversight and enforcement resources on proper and full
implementation of local pretreatment programs.  To this end,
EPA Regions now identify those POTWs that have failed to
adequately implement their pretreatment programs and report
these POTWs on the QNCR pursuant to the definition of Report-
able Noncompliance for pretreatment program implementation.
EPA Regions should then initiate enforcement actions against
POTWs with serious pretreatment implementation violations.6
Such enforcement actions are necessary to force the violating
POTW to comply and to deter other POTWs from neglecting their
pretreatment obligations.
   III.  LEGAL BASIS FOR ENFORCING POTW PRETREATMENT PROGRAM
        IMPLEMENTATION:  LOOK First to a POTW's Permit

A. Statutory Authority for Requiring POTW Pretreatment
Programs

     Section 301 of the Clean Water Act prohibits the
discharge of any pollutant except  in compliance with the  -
effluent limits established  in  §301 and the requirements in
sections 302,  306, 307, 308, 402 and 404.  The most relevant
sections for pretreatment are 307  and 402.

     EPA's authority to establish  pretreatment effluent
standards is contained in §307  of  the Act.  Section 307(b)(l)
requires EPA to promulgate regulations:

     "establishing pretreatment standards for  [the]
     introduction  of pollutants into treatments works
     ... which are publicly  owned  for those pollutants
     which are determined not to be susceptible to
     treatment by  such treatment works or which would
     interfere with the operations of such treatment
     works.  ... Pretreatment standards under this
     subsection ... »nall be established to prevent the
     discharge of  any  pollutant throuah treatment works
     ... which-are publicly  c;med, which pollutant
      6  Of-course, EPA Regions should  initiate these
enforcement  cases consistent with the  role of a state that
has an approved  state pretreatment program. . EPA Regions
should, encourage states with approved  programs to  initiate
state enforcement actions  against violating POTWs.

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Failure to Implement Guidance                          page 9
(8/4/88)


     interferes with, passes through, or otherwise is
     incompatible with such works.11

     In 1977, Congress amended §402(b)(8) to require a state
that wishes to receive EPA approval to operate the NPDES
program in its territory to have adequate authority:7

     "[t]o insure that any permit for a discharge from a
     publicly owned treatment works includes conditions
     to require the identification in terms of character
     and volume of pollutants of any significant source
     introducing pollutants subject to pretreatment
     standards under section 307(b) of this Act into
     such works and a program to assure compliance with
     such pretreatment standards by each such source
     ..."

     Section 402(b)(8) further mandates that a state program
have adequate authority to require POTWs to inform the state
permitting agency of. (1) the introduction of pollutants into
the POTW from a new source, (2) a substantial change in the
volume or character of pollutants coming into the POTW from
an existing source and (3) any anticipated impact of such
changes on the POTW's effluent discharge.  In snort, any
state desiring to administer its own NPDES permit prcgram
must issue permits, that require POTWs to have programs that
will assure compliance with pretreatment .standards.

     The language of §402 indicates that POTWs are obligated
to have programs to assure compliance with pretreatment
requirements and gives EPA and approved states the authority
and obligation to require POTWs to develop and implement
effective pretreatment programs.


3. ci:/il Judicial Enforcement Authority

     EPA's civil authority to obtain injunctive relief to
enforce the obligation that POTWs adequately implement their
pretreatment programs is contained in §309(a)(3)  of the Act,
which reads, in pertinent part:

     "Whenever ... tha Administrator finds that any
     person is in violation of section 301, 302,  306,
     307, 308, 318, or 405 of this Act,  or is in
     violation 'of any permit condition or limitation
     implementing any of such sections in a permit
     7  The requirements that govern a state NPDES program
under §402(b) of the Act also apply to U.S. EPA where EPA is
administering the NPDES program.  §402(a)(3).

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Failure to Implement Guidance
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     issued under-section 402 of this Act by him or a
     State ..., he shall issue an order requiring such
     person to comply with such section or requirement,
     or he shall bring a civil action in accordance with
     subsection (b) of this section."

     Section 309(b) of the Act authorizes EPA, in pertinent
part,:

     ... to commence a civil action for appropriate
     relief, including a permanent or temporary injunc-
     tion, for any violation for which he (EPA
     Administrator] is authorized to issue a compliance •
     order under subsection(a)  of this section. ...

     Civil penalty liability is established in §309(d) of the
Act, which reads,  in pertinent part:

     "Any person who violates section 301, 302, 306,
     307, 308, 318, or 40S of this Act, or any permit
     condition or limitation implementing any of such
     sections in a permit issued under section 402 of
     this Act by the Administrator, or by a state   ..,
     or any requirement imposed in a pretreatmeut pro-
     gram approved under section 402(a)(3) or 402(b)(8)
     of this Act,  and any person who violates an order
     issued by the Administrator under subsection (a) of
     this section, shall be subject to a civil penalty
     not to exceed $25,000 for each violation."

     Thus, §309(b) and (d) of the Act give EPA plenary
authority to bring a civil action for injunctive relief and
penalties against a municipality that has violated the
pretreatment implementation requirements contained in its
NPDES permit and any requirements contained in an approved
pret -;atment program incorporated by reference into the
permit.  EPA also can enforce the pretreatment regulations,
40 CFR 403, if the permit (or approved program incorporated
by reference into the permit) appropriately references the
regulations.  Specifically, EPA's cause of action under
§309(b) and (d), in those circumstances, is that the POTW has
violated a permit condition authorized by the statute for the
purpose of implementing §307 of the Act.

     In some circumstances, EPA may seek to require a POTW to
implement an approved program or regulatory requirement in
the absence of an NPDES permit condition requiring program
implementation or.compliance with the regulations where, for
example, EPA can establish that the absence of an active
pretreatment program is contributing to POTW effluent
violations or the absence of a pretreatment program is
causing apparent environmental problems.'  In this situation,

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 Failure  to  Implement Guidance       .                  paae'll
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 EPA could sue  the  POTW for MPDES  permit violations  other than
 inadequate  implementation  under § 309(b)  and  (d)  of the  Act
 and seek pretreatment implementation as "appropriate relief"
 under  §309(b).

     Also in some  circumstances,  EPA may  seek injunctive
 relief under §309(f)  of the Act to require a  POTW to imple-
 ment a pretreatment  program (in the  absence of a  permit
 condition requiring  implementation)  if one or more  lUs are
 violating federal  pretreatment standards.  Under  1309(f)  of
 the Act, EPA would have to establish that requiring a  POTW to
 implement a pretreatment program  is  an element of "appro-
 priate relief" and that such  appropriate  injunctive relief
 would  remedy the IU  noncompliance with federal pretreatment
 standards.8

     As  a general  rule, EPA will  be  in the strongest posi-
 tion,  from  a legal and equitable  perspective,  to  bring an
 enforcement action against a  POTW for pretreatment  program
 implementation violations  when the case is based  on viola-
 tions  of the POTW's  NPDES  permit  related  to pretreatment
 implementation.  Permit requirements vary across  POTWs and
 thus each permit must be reviewed to identify the specific
 implementation requirements.  The ideal NPOES ^erwit for a
 POTW with a pretreatment program  should establish three  types
 of implementation  requirements as conditions  of the permit:9

     (1) The permit  should incorporate by reference the
     approved pretreatment program and require the  POTW  to
     comply with and implement the program.
     (2) The permit  should require the POTW to comply  with
     the federal pretreatment regulations at  40 CFR 403  and
     to  implement  its approved pretreatment program consis-
     tent with the federal pretreatment regulations.   The
     permit also should require the  POTW  to comply,  within 30
     .-lays after receiving  notice  from its Approval  Authority,
     with all revisions to the pretreatment regulations
     subsequently  promulgated.
     (3) The permit  should, as needed, set out more specific
     requirements  relating to important implementation
     procedures of the pretreatment  program,  and  require the
     POTW to comply  with these requirements by specific
     dates.  For example,  the permit could require  the POTW
     8  Further details on bringing cases in these limited
circumstances are contained in the two September 20, 1985,
documents discussed earlier, at page 5.

     9  Permits ti^at lack all three of these provisions
should be modified as soon as possible, but no later than
when the permit is next re-issued.        '

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Failure to Implement Guidance
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     to inspect and sample lUs on an enumerated schedule
     (perhaps a specific number each quarter), beyond just
     simply requiring an inspection and sampling program.

     The strongest enforcement cases consequently are likely
to contain allegations that the FOTW has violated its permit
by failing to, for example,:

     (1) perform a specific pretreatment activity directly
     required by its permit;
     (2) fully implement its approved pretreatment program as
     explicitly required by its permit; and/or
     (3) comply with the 40 CFR 403 regulations  (especially,
     §§403.5 and 403.8(f)) as directly required by its
     permit.
C^ Administrative Enforcement Authority

     Under  §309(a)(3) of the Act, EPA can administratively
order a POTW to comply with the pretreatment program require-
ments contained in  its permit and its approved pretreatment
program incorporated by reference into the permit.  EPA
Regions also can issue an administrative order (AO) requiring
a POTW to comply with the pretreatment regulations if the
permit (or  approved program incorporated into the permit by
reference)  requires compliance with the regulations.  As
stated previously,  EPA is in the strongest position to
enforce a pretreatment implementation requirement, either
administratively or judicially, if the POTW's permit (or
approved program or regulations, incorporated into the
permit) imposes that requirement on the POTW.

     If neither the permit nor the incorporated program
requires a  POTW to  comply with the regulations, and a POTW is
otherwise in compliance with its permit and approved program,
but not with requirements in the regulations, then the
recommended course  of action is for the Region (or authorized
state) to expeditiously modify a POTW's permit to incorporate
all applicable pretreatment regulatory requirements into the
permit explicitly or by reference.10  An AO may, neverthe-
less, be an appropriate tool for enforcing pretreatment
program implementation not otherwise required in the POTW's
permit, where,  for  example, the POTW is violating effluent
limits in its.permit which violations are related to the
POTW's failure  to  implement its local pretreatment program.
      10   Applicable regulatory procedures to modify permits
 must,  naturally,  be followed.

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     The Water Quality Act of 1987 authorized EPA to assess
penalties administratively for violations of the Clean Water
Act.  Under §309(g), EPA may impose penalties for virtually
the entire range of violations that are subject to civil
penalties under §309(d).  Administrative penalties may be
assessed up to a maximum of $25,000 following Class 1
informal procedures and a maximum of $125,000 under Class 2
formal APA procedures.  Administrative penalties cannot be
imposed for violations of §309(a) administrative compliance
orders, but. of course, may be imposed for underlying
violations.11  Administrative penalty authority, by itself,
does not include the power to directly order a violator to
stop continuing violations or take alternative activities to
achieve compliance.

     Subject to these qualifications, EPA now has administra-
tive authority to assess penalties against a POTW that
violates (1) the pretreatment implementation requirements
contained in its permit, (2) an approved program incorporated
into its permit, or (3) the pretreatment regulations if the
permit or approved program appropriately references the
regulations.  Regions should review EPA's "Guidance Documents
for Implementation of Administrative Penalty Authorities,"
August 1987, for the details on how to initiate these
enforcement actions.12
D. Criminal Penalty Authority

     Under §309(c), EPA has the authority to assess criminal
penalties for negligent or knowing violations of the Act, for
violations that knowingly put another person in imminent
danger of death or serious bodily injury, or for mski j false
statements under the Act.  Criminal penalties can be assessed
for the entire range of violations that are covered by EPA's
civil and administrative authorities in §309(a), (b) and (d).
For example, a POTW that falsely reports to its Approval
Authority that it is complying with a pretreatment implemen-
tation requirement is a potential candidate for criminal
enforcement.
     11  Civil penalties can be- imposed judicially under
§309(d) of the .Act for violations of administrative (compli-
ance)  orders issued pursuant to §309 (a) of the Act.

     12  EPA Regions should, naturally, include a copy of the
POTW's permit in any proposed administrative penalty action
sent to Headquarters for review.

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                V
Failure to Implement Guidance
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page 14
 IV. IDENTIFYING POTW PRETREATMENT IMPLEMENTATION VIOLATIONS
           LIKELY TO MERIT AN ENFORCEMENT RESPONSE:

       Evaluating a POTW's Actions In Light of Allowed
           Flexibility and Impact of 'the Violation

A. Identifying Potential Violations

     Once a POTW is listed on the QNCR for Reportable Noncom-
pliance with pretreatment program implementation requirements
(or the noncompliance otherwise comes to the Region's
attention), the Region should evaluate whether to initiate an
enforcement action.13  In order to perform this,evaluation,
the Region should identify all potential pretreatment
violations.  Once the Region has identified all potential
violations, it must examine the extent, scope, and impact of
these potential violations to determine whether and what kind
of an enforcement response is warranted.

     This evaluation is necessary because some pretreatment
requirements intentionally allow a POTW considerable flexi-
bility in implementation.  This flexibility may result in a
pretreatment requirement lacking a completely precise
definition of noncompliance, thereby calling for some
exercise Of judgment in determining whether a POTW violated
the pretreatment requirement.

     As an example, consider a POTW with a permit condition
that requires the POTW to "analyze self-monitoring reports
submitted by its lUs and then respond to those reports that
indicate violations or other problems.11  Assume the facts
reveal that this POTW reads each self-monitoring report and
usually, but not always, writes a letter to those lUs that
are violating their local limits.  By themselves these facts
may not be sufficient to demonstrate that this POTW has
failed to implement this requirement in a reasonable fashion
and thus has violated this pretreatment requirement.  In
contrast, if the facts revealed that the POTW rarely read the
self-monitoring reports and that most were sitting in a pile
unopened, this would almost certainly be a violation of the
pretreatment implementation requirement.

     The following approach should prove helpful in identify-
ing all potential violations.  First, the region-should
     13  Before a POTW appears on the QNCR.for Reportable
Noncompliance, a region or state Approval Authority is likely
to have alreadv initiated informal enforcement actions
against the tc.w (e.g., NOVs or compliance meetings) in an
attempt to. correct the violations and bring the POTW back
into compliance.                   •                •

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Failure to "Implement  Guidance  .           .            page  15
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examine the POTW's- permit  (and approved program and Federal
regulations where  the permit incorporates these requirements
by reference) to identify  all pretreatment activities the
POTW is required to implement.  The Region must perform this
step carefully, since the  specific enforceable requirements
set out in POTW permits  (or approved programs appropriately
incorporated in a  POTW permit) can vary significantly across
the 1500 or so POTWs  with  approved pretreatment programs.
EPA's Pretreatment Compliance Monitoring and Enforcement
Guidance serves as a  good  reference point for the kinds of
requirements that  are likely to be applicable in a strongly
crafted permit to  obtain effective program implementation.
In addition, 40 CFR 403.5  and 403.8 detail elements of an
acceptable local pretreatment program.  Indeed, the permit
may very well require the  POTW to implement its local program
consistent with the Part 403 regulations.14

     Second, the region should compare all available compli-
ance information to the identified, applicable pretreatment
program requirements.  At  a minimum, the Region should review
all pretreatment program annual reports that the POTW has
submitted since its program was approved.  The annual reports,
should be checked  to  make  certain that they are complete and
supply all the information required by the permit or approved
program.15 Naturally, all  pretreatment program audits and
inspections that have been performed by the Region or the
state should also  be  reviewed to identify potential viola-
tions.

     Third, the region should compile a list of all pretreat-
ment implementation requirements applicable to the POTW which
available information indicates the POTW may have violated.
Fourth, in some circumstances, the region may wish t^ obtain
more additional information by issuing a §308 letter to a
POTW to fill in gaps  in compliance information.

     As a rough check that all potential violations have been
identified, the Region should review the definition of
Reportable Noncompliance contained in Table 1 and the
examples of possible  pretreatment implementation violations
     14  Table 2 provides a listing of some potential
violations that might arise from a POTW's failure to comply,
as instructed to by its permit, with the federal pretreatment
regulations.

     15  Pursuant to the PIRT June 1986 proposed rule, EPA
will be promulgating shortly a final regulation, 40 CFR
403.12(i), requ.rj.ng POTWs with approved pretreatment
programs to submit annual reports describing the POTW's
pretreatment activities.               '

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                                                                  page  15a
                                           TABLE I *
                       DEFINITION OF REPORTABLE NONCOMPLUNCE
   A POTW should be reported on the QNCR if the violation of its approved pretreatment program, its
   NPDES permit or an enforcement order1 meets one or more of the following lettered criteria for
   implementation of its approved preireatment program:

   I.  Issuance of IU 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 date 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)   Failed to establish and enforce self-monitoring requirements that are necessary to monitor
             SIU compliance as required by the approved program, the NPDES permit, or an enforcement
             order.
   III.  POTW Enforcement

        D)   Failed to develop, implement, and enforce  pretreatment standards (including c
             standards and local limits) in ah effective and timely manner or as required by the
             program. NPDES permit, or an enforcement order.
        E)   Failed to undertake effective  enforcement against the industrial user(s)  for instances of
             pass-through  and interference as defined in 40 CFR Section 403.3 and required by Section
             403.5 and defined in the approved program.
   (V.   POTW Reporting to the Approval Authority

        F)   Failed to submit a pretreatment report (e.g., annual report or publn—  .: of significant
             violators) to the Approval Authority within 30 days of the due date specified  in the NPDES
             permit, enforcement order, or approved program.4
   V.  Other POTW Implementation Violations
        G)  Failed to complete a pretreatment implementation compliance schedule  milestone within
             90 days of the due date specified  n the  NPDES permit, enforcement order, or approved
             program.4
        H)  Any other violation or group of violations of local program implementation requirements
             based on the NPDES permit, approved progran or 40 CFR Part 403 which the Director or
             Regional Administrator considers to be of substantial concern.4
  .  ' The term enforcement order means an administrative order, judicial order or consent decree. (Svc Sca;..n 11> -5)

    4 Existing QNCR criterion (40 CFR Part 123 45); the violation must be reported.
Reprinted from:   J.S. EPA,  OWEP, "Guidance for  Reporting and E\..uacing POTW
Noncompiiance with Pretreatment Implementation  Requirements", September 30,  1987,

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 Failure  to  Implement Guidance                          page  16
 (8/4X88)
                                    *

 listed in Table  2-   Table  2  contains  a  listing  of passible
 violations  based on a reasonable  interpretation of  the
 pretreatment implementation  regulations (40  CFR 403} when
 such regulations are incorporated by  reference  into the
 permit.   While the  list in Table  2 is not  exhaustive,  it is
 illustrative of  those violations  that may  justify an enforce-
 ment response by EPA for failure  to implement.

      Once all potential violations have been identified,
 each potential violation must  be  evaluated to determine the
 strength of EPA's claim of violation  in light of the facts
 and any  imprecision in the way the underlying pretreatment
 implementation requirement defines compliance.16  Each
 potential violation should be  evaluated in this manner to
 determine the strength of  a  possible  EPA claim  of a violation
 of an underlying pretreatment  requirement.   After these
 evaluations are  completed  the  Region  should  produce a  table
 of violations which the Region concludes are strong enough  to
 pursue,   such a  table should describe each violation and
 identify the specific underlying  legal  requirement  that was
.violated.   Xn addition,  sucl* a table  should  indicate the
 duration of the  violation  and  indicate  how strong the
 evidence is supporting the violation.   A model  form for this
 process  is  included here as  attachment  A.


 B.  Determining the  Extent  To Which Identified Violations
 Warrant  an  Enforcement Response:   How strong Are EPA's
 Claims?

      The  strength of EPA's claims  naturally  will affect EPA's
 decision  regarding  whether to  pursue  an enforcement action
 against a POTW for  failing to  implement a  local pretreatment
 program.  In turn,  the strength of EPA's enforcement claims
 depends to  a large  degree  on the extent to which identified
 violations  demonstrate that  a  POTW has  acted unreasonably in
 meeting pretreatment program implementation  requirements,
 given (1) the flexibility  afforded by many requirements and
 (2)  the impact or severity of  the  violations.  More specifi-
 cally, the  more  flexible the implementation  requirements, the
 more important the  need to demonstrate  the extensiveness or
 severity of the violation.

 1.   Evaluating Unreasonable  POTW Action Under Flexible
 Implementation Requirements.   Some p.^treatment implementa-
     16  Recall that EPA is in the strongest position to
enforce a requirement if the requirement is expressly stated
in the permit, in the approved program incorporated by
reference into the permit, or in the regulations if the
permit requires the POTW to comply with the regulations.

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                                                 page 16a
                               TABLE 2
     EXAMPLES OF VIOLATIONS BASED ON A REASONABLE INTERPRETATION
     OF PRETREATMENT IMPLEMENTATION REGULATIONS WHEN INCORPORATED
                    BY. REFERENCE INTO THE PERMIT*
    1.   Failed to develop and/or  implement procedures  that
         reasonably identify all lUs,  including new users, see 40
         CFR 403.8(f)(2)(i).

    2.   Failed to develop and/or  implement procedures  that
         reasonably identify all incoming pollutants, including
         changes in the  nature and volume of  incoming pollutants.
         See 40 CFR 403.8(f)(2)(ii).

    3.   Lack of procedures to keep POTW itself informed of
         minimum legal requirements of pretreatment or  keep  its
         lUs informed.   See 40 CFR 403.8(f)(2)(iii).

    4.   Failed to implement a system  that allows the orderly
         receipt and  informed analysis of self-monitoring
         reports. See 40 CFR 403.8(f)(2)(iv).

    5.   Failed to inspect and sample  the effluent from lUs  as
         often as is  necessary to  assure compliance with pre-
         treatment standards and requirements.  See 40  CFR
         403.8(f)(2)(v).

    6.   Failed to investigate or  respond adequately to instances
         of IU noncompliance.  See 40 CFR 403.8(f)(2)(vi).

    7.   Failed to publish, at least annually, in the largest
         daily newspaper, a list of those lUs which, during  the
         previous 12  months, were  significantly violating
         applicable Pretreatment Standards and Requirements*  See
         40 CFR 403.8(f)(2)(vii).

    8.   Changes to POTW's legal authority such that the program
         no longer satisfies the minimum legal requirements  of 40
         CFR 403.8(f)(1).

    9.   Has never enforced its local  limits beyond a telephone
         call or letter  to the violating IU despite repeated
         violations by lUs. See  40 CFR 403.5(c)

    10.  Deficient POTW  resources  (supplies, equipment,  person-
         nel) which seriously hinder a POTW's ability to imple-
         ment an effective pretrtatment program pursuant to  40
         CFR 403.8.(f)(l) & (2).  See 40 CFR 403.8 (f) (3) .
         *  EPA's enforcement  case  is  strongest where the
    violations are based  on  ah implementation  requirement
    contained in a POTW's permit, either explicitly or  by
    reference.'
• ^-
6

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Failure to Implement Guidance                  '       page 17
(8/4/88)


tion requirements are quite specific and thus the determina-
tion of whether a POTW fully complied with such requirements
will be straightforward.  For example, if a permit requires a
POTW to issue control mechanisms to all its significant XUs
within one year of program approval, one year after program
approval the facts should be clear whether or not a POTW
complied with this requirement.

     However, the pretreatment requirements contained in
permits and approved programs, as well as the regulations,
are often written in general terms that give a POTW consid-
erable flexibility in implementing a given requirement.
Indeed, virtually all regulatory implementation requirements
allow some flexibility in implementation.  While a POTW may
have considerable flexibility in implementing some pretreat-
ment requirements, a POTW must act reasonably by implementing
its pretreatment requirements consistent with the objectives
of the National Pretreatment Program.  These objectives are
presented in 40 CFR 403.2:

     (a) To prevent the introduction of pollutants into POTWs
     which will interfere with the operation of a POTW,
     including interference with its use or disposal of
     municipal sewage;
     (b) To prevent the introduction of' pollutants into POTWs
     which will pass through the treatment works or otherwise
     be incompatible with such-works; and
     (c) To improve opportunities to recycle and reclaim
     municipal and industrial wastewaters and sludges.

     POTWs are on notice of these objectives and thus should
implement a pretreatment program that "assure[s]  compliance
with pretreatment standards to the extent applicable under
section 307(b)." 40 CFR 122.44(j)(2).17  In short, a POTW's
implementation of its pretreatment requirements must be
reasc .able:  that is, consistent with the objectives of an
effective pretreatment program.

     In determining whether a POTW's implementation of a
pretreatment requirement is reasonable or appropriate, the
Regions again may wish to review OWEP's July 1986, "Pretreat-
ment Compliance Monitoring and Enforcement Guidance".  This
document provides PCTtfs with information about their pre-
treatment implementation responsibilities and describes the  .
     17  The last sentence of §403.8(b) and the first  .
sentence of §403.8(f)(2) contain similar language requiring a
POTW to implement its pretreatment program in order to ensure
compliance with pretreatment standards.  See also §402(b)(8)
of the -Act;

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Failure to Implement Guidance
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page 18
rationale behind the procedures POTWs should implement in
order to successfully operate their approved programs. :

     For example, one such potentially flexible requirement
is the important permit condition that a POTW enforce all
pretreatment standards and requirements, including local
limits and categorical pretreatment standards.18  There will
be situations in which a POTWs performance is so inadequate
that there is no doubt that this requirement was violated.
For example, there is no doubt that a POTW that generally
ignores most violations of local limits by its XUs, has never
enforced beyond issuing a letter of violation to an IU, and
that consequently has violated its effluent limits due to
interference or pass through problems has violated its
requirement to enforce pretreatment standards and require-
ments .

     In contrast, consider a POTW that regularly issues
letters of violations, has collected penalties from some lUs
that were violating local limits, but has allowed a few lUs
to violate local limits and cause interference violations
without escalating its enforcement response beyond the
issuance of "lenient" compliance schedules for th-» irs.  Such
facts may paint a much more complicated picture on which tc
base a finding that this POTW is not complying with its
obligation to enforce pretreatment standards.  In situations
such as this, EPA Regions must evaluate all the facts to
determine whether a POTW has taken reasonable actions
consistent with its obligation to enforce its program.  If
the. Region believes that a POTW has not taken reasonable
actions to comply with its obligation here and specific
deficiencies can be identified, then this POTW should be
considered in violation of its permit.
2. E • tluatinq the Impact or Severity of Identified Viola"
tions.

a.  Inadequate Program Implementation Causing POTW Effluent
Limit Violations.  The most significant pretreatment imple-
mentation violation is failing to prevent interference or
     18  Much of the lack of precision in this requirement
can be eliminated if a POTW is required to develop and
implement an enforcement response plan that details how a
POTW will respond to different kinds of violations by its
lUs.  See Enforcement Response Guide, §3.3 and Table 3-2, in
OWEP's July 1986 "Pretreatment Compliance Monitoring and
Enforcement Guidance."

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Failure to Implement Guidance                         page 19
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                                             •

pass through.19  By regulatory definition, interference or
pass through basically exists when an IU discharge is a cause
of POTW effluent limit violation or  inability to use or
dispose of sewage sludge properly.   Thus, a POTW which is
violating its permit limits because  of the IU discharges it
is accepting has failed to implement a successful pretreat-
ment program as defined by the Act.

     A POTW that has experienced repeated interference or
pass through problems but has taken  no definite action to
remedy the situation (i.e., to control the discharges of its
lUs) generally should be an ideal candidate for an enforce-
ment action.  The fact that effluent violations have occurred
at the POTW strongly suggests that the POTW is not effec-
tively implementing its pre treatment program.


b.  Inadequate Implementation Not Causing Effluent Viola-
        The lack of an interference or pass through viola-
tion, or any permit effluent discharge violation, does not
mean that EPA should overlook or trivialize other types of
implementation violations.
     Beyond undermining the integrity of the
pretreatment program, a POTW's failure to implement a pre-
treatment program which does not lead to effluent limits
violations can result in the discharge to waters of the
United States or in a POTW's sludge of higher levels of
pollutants, particularly toxics, which may not yet be con-
trolled under the POTW's permit.  In addition, an improperly
implemented pretreatment program may allow slug loadings from
lUs which might go undetected if the POTW is not sampling its
effluent at appropriate times.

     Moreover, inadequate implementation by one POTW may give
its ~*Js an unfair advantage relative to industries discharg-
ing into another POTW and thereby may induce the second POTW
to forego adequate pretreatment program implementation.
Finally, inadequate local program implementation generally
jeopardizes the ability of the National Pretreatment Program
to effectively control industrial discharges of toxic and
hazardous pollutants.
   •  19  Recall that §402(8) of the Act requires pretreatment
programs to assure compliance with pretreatment standards and
that such standards, pursuant to §307(b) of the Act, are
"established to prevent the discharge of any pollutant
through [publl.-'.y owned] treatment works ... which pollutant
interferes wiz.:,: passes through, or otherwise is incompatible'
with such works, [emphasis added]"  See also 40 CFR 403.5(a)
and (c).

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Failure to Implement Guidance
(8/4/88)
page 20
     Thus, a Region should evaluate each violation to deter*
mine its severity or seriousness.  Violations that are truly
minor, with no impact on the ability of a POTW to conduct an
effective pretre.itment program, should be so identified.
Each violation should be evaluated with respect to the
general guidelines listed in Table 3;

     A Region may find it helpful to assign a numerical rank-
ing to each identified violation reflective of its severity.
The model form for creating a list of violations in Attach-
ment A contains a numerical scale ranging from 1 (minor
violation) to 5 (violation creating injury or risk of injury
to human health or the environment) which may be used to rate
the severity of each identified violation.

     Of course, a violation which may not be severe and may
not present EPA with a strong enforcement claim individually.
may very well warrant enforcement action by EPA if the POTW
is committing a number of such violations simultaneously,
even if the enforceable requirements afford a considerable
amount of flexibility,  such a broad pattern of minor
failures can add up to inadequate program implementation when
viewed as a whole.  Naturally, the more such violations are
present,, the stronger EPA's enforcement case.
     .  V. ENFORCEMENT OPTIONS FOR FAILURE TO IMPLEMENT

A. General Considerationsfor Choosing an Appropriate
Enforcement Response

     Once a POTW has been identified as having pretre .tment
implementation violations meriting a formal enforcement
response, the Region has several options to choose from in
selecting an appropriate enforcement response. The available
statutory enforcement responses are: '

1.  Administrative  (compliance) Order  —  §309(a)
2.  Administrative penalty assessment — §309(g)
3.  Civil Judicial Action — §309(b) & (d), 309(f)20
4.  Criminal Judicial Action Referral —§309(c).
     20 If there is not enforceable permit language requiring
pretreatment program implementation but an IU is violating
federal pretreatment standards, EPA can use §309(f) to
initiate a judicial action seeking appropriate injunctive
relief against ro*;h the IU and the POTW   [see page 10].
Section 402(h, also may provide a useful  cause of action in
some circumstances where a sewer hook-up  ban may be appro-
priate relief to pursue.

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                                              page 20a
                            TABLE 3
        GENERAL GUIDELINES FOR EVALUATING THE SEVERITY
           OP PRETREATMENT" IMPLEMENTATION VIOLATIONS*

            For 'each potential violation,  consider:
 A.



 B.



 C.
 D.



 E.




 F.




 G.
Importance of activity at issue to environmental success
of the POTW's pretreatment program.

Any identifiable environmental/public health harm or
risk created by the alleged violation?

Is the quantity of pollutants being discharged into the
receiving stream higher than it would otherwise be if
the POTW was complying with the requirement at issue?
By how much?

Did the POTW benefit economically from the alleged
violation?

Are lUs benefiting economically (avoiding the costs of
compliance) by the POTW's failure to implement this
program requirement?

Has the violation persisted after the POTW was informed
of this violation?  And then ordered to remedy the
situation?

How long has this violation persisted over time o'r is it
more like a single, isolated incident of noncompliance?
        In general, this evaluation should be performed after '
a POTW has been listed on the QNCR for Reportable Noncom-
pliance with pretreatment program implementation requirements.

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Failure to Implement Guidance                         page 21
(8/4/88)


     In selecting'an appropriate enforcement response, the
Region should consider the overall severity of the viola-
tions, the compliance history and commitment of the POTW in
question, whether injunctive relief is needed, whether a
penalty is appropriate and if so, how large a penalty, and
what kind of message needs to be sent to other POTWs  (i.e.,
general deterrence).

     The Regions should carefully consider using EPA's new
administrative penalty authority in appropriate circum-
stances.  The Regions should review the Agency guidance
documents issued by the Office of Water and the Office of
Enforcement and Compliance Monitoring (August 1987) for
implementation of the new administrative penalty authorities.
The document entitled "Guidance on Choosing Among Clean Water
Act Administrative, Civil and Criminal Enforcement Remedies'*
should be particularly helpful in laying out the
considerations ..involved in choosing between administrative
and judicial enforcement actions.

     As a general rule, the strongest enforcement case
against a POTW for failure to implement its pretreatment
program will generally involve POTW effluent violations and a
number of related pretreatment implementation violations.  In
other words, the POTW's implementation of its pretreatment
program has been so deficient that IU discharges have not
been adequately controlled and these discharges have caused a
POTW to exceed the effluent limits in its permit (or other-
wise violate its permit).  This type of case which calls for
both injunctive relief and a substantial civil penalty is
likely to be appropriate for civil judicial enforcement.

     A case in which a POTW is running a sloppy or inadequate
pretreatment program, with identifiable implementation viola-
tions, but in which there is so far no evidence of POTW
effluent limit violations, may be appropriately dealt with by
issuance of a traditional compliance administrative order or
by assessment of an administrative penalty, or by initiation
of a civil judicial action.  EPA's pursuit of a penalty in
these situations could have great value in demonstrating to
POTWs that they must fully implement their pretreatment
programs now and not wait until serious effluent violations
occur.  Enforcement actions initiated against POTWs for
failure to implement in the absence of effluent limit viola-
tions (related to inadequate implementation) should help EPA
send the message that prevention is the goal of pretreatment
programs, not damage control after effluent limit violations
have occurred.

     There may ae cases in which the POTW is complying with  .
its permit and approved program, but nevertheless the Region
believes that the POTW's pretreatment performance is inade-

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Failure to Implement Guidance
(8/4/88)
page 22
quate.  This situation is likely when the approved program
does not specify all the necessary actions that the POTW
should perform.  In such a situation, if there are indeed no
clear violations of the permit or approved program, the best
course of action may be for the Region or approved state to
expeditiously modify the POTW's permit and/or approved
program to establish specific program implementation require-
ments to remedy the situation.*1

     In summary, civil judicial enforcement cases are most
likely to be appropriate when the violations are severe,
injunctive relief is necessary, and/or a penalty should be
assessed in excess of EPA's new administrative penalty
authority.

B. Penalty Assessments

     Naturally, in determining an appropriate settlement
penalty, the CWA Civil Penalty Policy must be followed.
Earlier this month, EPA distributed draft guidance --
"Penalty Calculations for a POTW's Failure to Implement It's
Pretreatment Program11 — that explains the specific consider-
ations involved in making penalty policy calculations for
failure to implement violations.  In short, EPA should col-
lect a penalty that recovers a POTW's full economic benefit
stemming from the pretreatment implementation noncompliance
plus an additional gravity amount based on the type and
pattern of the violations.  The POTW's economic benefit may
accrue from costs avoided by not hiring -program personnel,
not issuing IU wastewater discharge permits, not conducting
inspections or wastewater testing, failing to maintain
records or submit reports, or failing to install or operate
necessary equipment.

     In applying the Penalty Policy adjustment factor for
ability to pay to these cases, it should be stressed that
since pretreatment programs are designed to control indus-
trial discharges, the costs of the programs should be paid by
lUs through appropriate user charges levied by a POTW.  In
assessing ability to pay, a POTW's ability to recover penalty
amounts from its IDs is relevant.  A per capita approach
based simply on the residential service population of a POTW
is not. appropriate as the basis for establishing a settlement
penalty for a POTW failure to implement case.
     21  Recall that EPA is in the strongest position to
enforce a pretreatment requirement if the requirement is
expressly statsd in the permit, in the approved program
incorporated -^ reference into the permit, or in the
regulations if"the permit requires the POTW to comply with
the regulations.                          .

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Failure to Implement Guidance
(8/4/88)
page 23
c. Joinincf industrial Users  fiu«) and States

     If an IU has caused interference or pass through at the
POTW, or has violated local  limits, categorical standards or
other pretreatment requirements, EPA may include such an IU
in a civil enforcement action.  The importance of joining an
IU in an enforcement action-  is increased if an IU is a
primary cause of a POTW's effluent limit violations or if the
IU needs to install pretreatment equipment at its facility,
especially if a POTW is unwilling or unable to force an IU to
install the necessary equipment.  In general, if an IU has
obtained an economic benefit from its noncompliance with
pretreatment standards and requirements and its noncompliance
is contributing to a POTW's problems, then in order to obtain
a complete remedy and an appropriate penalty consistent with
the Agency's Penalty Policy, EPA may very well want to
include such an IU in any judicial action brought against a
POTW for failure to implement.  Similarly, if a Region
contemplates an enforcement action against an IU for
pretreatment violations, which violations have caused
problems at the POTW and the- POTW has failed to adequately
respond to the lU's violations, claims against the IU and the
POTW should generally be joined in a single civil action.

     Pursuant to §309(e) of the Act, whenever EPA brings a
judicial enforcement action against a POTW, the state in
which a POTW is located must be joined as a party.   If state
law prevents a POTW from raising revenues needed to comply
with any judgment entered against it, the Act makes a state
liable for payment of such expenses,  states may be joined in
judicial enforcement actions against POTWs for failure to
implement as either defendants or plaintiffs, as appropriate.
Further details on how to join states under §309(e)  is found
in EPA's February 4, 1987, "Interim Guidance
on Joining States as Plaintiffs."

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5V"

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                                                                   VLB.30.
"GUIDANCE ON PENALTY CALCULATIONS FOR POTW FAILURE TO IMPLEMENT APPROVED
PRETREATMENT PROGRAMS", dated December 22, 1988.

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. O.C.  20460
                                                       OFFICE OF
                                                        WATCH
MEMORANDUM
SUBJECT:
PROM:
TO:
Guidance on Penalty Calculations for POTW Failure to
  Implement an Approved Pretreatment Program
James R. Eldec^D free tor
Office of Waj^er Enforcement and Permits (EN-335)
John Lyon, Acting Associate
  Enforcement Counsel for W*Wr (LE-134W)
Office of Enforcement and c(ynpliance Monitoring

Regional Water Management Division Directors
Regional Counsels
     The attached Guidance is provided to assist you and your.
staff in applying the Clean Water Act  (CWA) Civil Penalty Policy
in cases where a POTW has failed to adequately implement its
approved pretreatment program.  The Guidance is based on the
existing CWA 'Penalty Policy, as well as the August 28, 1987
amendment to the Civil Penalty Policy and the Guidance for
Reporting and Evaluating POTW Noncompliance with Pretreatment
Implementation Requirements.  As a result, both administrative
and judicial civil penalties for settlement should be calculated
using this Guidance.

     A draft version of this Guidance was provided to the Regions
for comment on August 1, 1988.  We wish to thank you for your
timely and helpful comments and your overall support for this
Guidance.  The most significant comments on the previous draft
were received on the "Ability to Pay" discussion which encouraged
the recovery of penalties from industrial users.  Based on
comments received, that discussion has been revised, and the
Guidance is now flexible as to the method which a municipality
should use to pay penalties.

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                               -2-        .                ••
   9
     Several Regions requested additional guidance on estimating
the economic benefit of failure to implement, especially for
failure to enforce pretreatment standards.  We have added Table 2
to the Guidance which provides resource estimates for enforcement
responses to instances of noncompliance.  The basic assumptions
are drawn from earlier guidance and from resource estimates used
by the Agency.  At this time, we. do not have additional data on
program implementation costs to update Table 1.  We do plan to
develop such data during the coming year.

     The major components of this Guidance will be incorporated
into the Civil Penalty Policy later this fiscal year.  However,
this Guidance is effective immediately as a more detailed
explanation of how to calculate penalties in pretreatment
implementation cases.

     If you have any further questions on the use of this
Guidance, please feel free to contact  one of us  (Jim Elder at
475-8488 or John Lyon at 475-8180) or your staff may contact Ed
Bender at 475-8331.

Attachment

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       PENALTY CALCULATIONS FOR A POTW'S FAILURE TO IMPLEMENT
                     ITS APPROVED PRETREATMENT PROGRAM
                              GUIDANCE
I.  INTRODOCTIOM

     The Clean Water Act Civil Penalty Policy (Feb. 11, 1986}
establishes a systematic approach for obtaining appropriate
settlement penalties for violations of the Act.  The Policy and
Methodology were amended August 28, 1987 to include .a methodology
for the calculation of administrative penalties.  One of the
changes in the amendment was the addition of a gravity factor to
address the significance of non-effluent violations.  This
Guidance applies the Civil Penalty Policy with amendment to
implementation cases.*

     In September 1987, OWEP issued "Guidance for Reporting and
Evaluating POTW Noncompliance with Pretreatment Implementation
Requirements" (RNC Guidance).  That document provides a
definition of reportable noncompliance (RNC) that is used to
evaluate POTW implementation violations of approved pretreatment
programs.  The definition consists of eight criteria for
determining when violations of an approved pretreatment program,
of related NPDES permit requirements, or of regulatory
requirements for implementation are of sufficient magnitude and
degree to require that a POTW be reported on the QNCR for failure
to implement an approved pretreatment program.  The criteria are
as follows:

     1.   POTW failure to issue control mechanisms to
          Significant Industrial Users in a timely fashion.

     2.   POTW failure to inspect Significant Industrial Users.

     3.   POTW failure to establish and .enforce industrial user
          self-monitoring where required by the approved program.

     4.   POTW failure to implement and enforce pretreatment
          standards (including local limits).

     5.   POTW failure to undertake effective enforcement against
          th« industrial user for instances of  interference  and
          pass/through.
* This Guidance, should be applied to calculate settlement
penalties for both administrative and judicial cases against
POTWs that fail to implement approved pretreatraent programs.

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                               -2-

   * 6.   POTW failure to submit pretreatment reports.

     7.   POTW failure .to complete pretreatment compliance
          schedule milestones on a timely basis.

     8.   POTW failure to comply with other pretreatment program
          requirements which are of substantial concern.

The purpose of this Guidance is to provide Regions with a
methodology to apply the CWA Penalty Policy, as amended, to
calculate administrative and civil judicial penalties for failure
to'implement cases, using the criteria outlined in the RNC
Guidance.

     As in the CWA Penalty Policy, this calculated penalty should
represent a reasonable and defensible penalty which the Agency
believes it can and should obtain in settlement.  In general, the
settlement penalty should recover a) full economic benefit
(avoided costs--salaries, financing, operating costs, and capital
expenditures), and b) some gravity related to the type and
pattern of the violation(s), even after adjustments.

     Note;  This guidance discusses the additional considerations
that should be used in the penalty calculation for failure to
imp1ement.  Penalty amounts for effluent violations should be
included and calculated according to the existing CWA Penalty Policy
and Methodology.  However, Section III of this document, "Example of
Penalty Calculation", does include penalties for both effluent and
pretreatment imp1ementatTon violations.

XI.  PENALTY CALCULATION METHODOLOGY - Pretreatment Implementation

     The basic methodology of the CWA Civil  Penalty Policy should
be used.to calculate settlement penalties in POTW pretreatment
implementation cases.  The three components  of a settlement penalty
(Economic Benefit, Gravity, and adjustments) are discussed below.

A)  Economic Benefit

     The following steps summarize the process to calculate economic
benefit for pretreatment program activities:

    o  Obtain estimates  of the costs to  the  POTW to implement its
       pretreatment program from the approved program submission.

    o  Update that information based on  more current  data  from a
       pretreatment compliance  inspection,  a pretreatment  audit, an
       annual report, or a 308 letter,  if available.
         rf*
    o  The economic benefit component of the civil  penalty policy
       should be calculated using  the EPA computer  program "BEN".

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-   ,           _                  -3-

     o  Foe purposes of the "BEN"  calculation,  the value  of
        delayed implementation includes delayed capital
        investment,  delayed cost in developing  or  updating local
        limits, and  annual  pretreatroent program operating and
        maintenance  (O&M)  costs that were avoided.  Use  separate  BEN
        runs if changes in  operating costs have occurred.

      1)  Estimating  Avoided or Delayed Costs for Implementation

      The approved pretreatment program will probably include  a budget
 for program implementation.  There may also be discussion of
 implementation activities  and costs in the approved program elements
 covering the compliance monitoring and administrative procedures.
 Such data in the approved  program submission provides a  basis for
 developing the economic benefit derived by a POTW by not implementing
 its approved program.   In  particular,  where a  POTW has  not  complied
 with that budget, economic benefit may be represented in part by the
 amount of the budget the POTW has failed to expend.  The Region  should
 use data developed  through audits, inspections, annual  reports or  308
 letters to develop  these cost estimates.

      In many cases, the POTW will have complied with the resource
 commitments in the  approved program but still  fail to adequately
 implement the required program.  This may be the result  of
 unrealistic estimates  initially,  the failure to update  resource  needs,
 changes in pretreatment program requirements or a failure to  carry out
 required activities with existing resources.  In such cases,  economic
 benefit may be developed by estimating the specific costs that were
 avoided for required implementation activities.

      Where specific costs  estimates for non-implementation  are not
 available, the costs avoided by the POTW for failure to  implement can
 be  expressed as a percent  of the total implementation cost  or as an
 estimated cost for  each required activity that was not  implemented.
 Pretreatment implementation costs for POTWs were evaluated  as part of
 an  earlier study (JRB  Associates, 1982 "Funding Manual  for  Local
 Pretreatment Programs" EPA Contract No. 68-01-5052).  This  assumes
 that the POTW budget includes all costs associated with
 implementation.  Based on  a review of several  programs,  a  table  (Table
 1)  was developed for small, medium, and large programs to  show the
 percent o&tptal costs which each implementation activity  represented.
 The smalljfOTto pretreatment programs were all  under 5 MGD  flow and
 covered t«4>'D* fewer significant industrial users  (SIU)  with  a total
 implementation cost ranging from 510,000-550,000.00 annually.  The
 medium siztfd POTW pretreatment programs had total flows from  5-15 MGD
 and up to 50 SIOs with an  annual cost from $25,000-5200,000.00.   The
 large POTW programs had flows over 15 MGD with 20 or more SIUs with
 annual implementation  costs ranging from $100,000 to more  than
 $350,000.00.

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Table 1.
                               -4-
Typipal Program Costs for Implementation Activities
by Program Size (as % of Total Cost)
Activity

1.  Sampling and Industrial
      Review {'Criteria B, C,)

2.  Laboratory Analysis
    (•Criteria B, C/ 0)

3.  Technical Assistance
    ('Criteria A, 0 and E)

4.  Legal Assistance
    ('Criteria A, 0, E)

5.  Program Administration
    (*all Criteria)
                      34%


                      17%


                      13%


                      14
                               100%
Medium

  19%


  34%


  26%


  10%


  11

 100%
39%


20%


13%


10
                                                      100%
     This Table can be used to assist in developing costs for a
specific program activity where costs are unavailable or determine^
be inadequate.  FOE example, if a medium-sized POTW had costs for
implementation of $100,000, but this POTW had failed to perform an]
compliance inspections of its Ills, the percentage from Table 1,
activity 1 for a medium-sized program could be applied to total costs.
The inspection costs in this case could be estimated to be $19,000.00.
The costs of "avoided implementation" may differ from year to year
depending on whether the activities are one-time or periodic (such as
permit issuance or updating local limits) or continuing tasks (such as
inspections). The costs of issuing permits may be 20% of an annual
implementation budget of $120,000 or $24,000 for a particular year.
If this POTW failed to issue four of the eight required permits,
$12,000.00 in expenses would be avoided for that year.

     Another approach to development of avoided costs is to estimate
the labor and overhead costs for particular activities.  This approach
may also be used in combination with Table 1, where the budget does
not cover coats for specific implementation requirements  (e.g., IU
permitting or enforcement).  For example, if each permit required one
month of engineering labor and analysis at $36,000.00/year, each
permit would cost $3,000.00.  The total avoided cost of four permits
would also be $12,-000.00.  The cost of permit re-issuance could be
lower than the initial issuance cost.  This value would be entered
under the variable for annual operating and maintenance expenses  for
*.Criteria from RNC.Guidance  that  ace  likely  to  be  associated  with_a
listed activity.

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a particular year.   If- the permits were  issued late, as opposed to
not  issued at all, avoided costs  (economic benefit) could be
calculated for  the period of delay.

      If a POTW  has failed to enforce against  lUs or delayed enforce-
ment  against IDs, the  POTW has received  economic benefit by avoiding
or delaying that action.  Even when specific  program costs for
enforcement can be identified, it may be difficult to quantify the
avoided or delayed costs.  Where necessary, one approach to
calculating the avoided costs by the POTW for inadequate enforcement
is to assume that each  IU violation would require a POTW enforcement
response  (see discussion in Pretreatment Compliance Monitoring and
Enforcement Guidance  (PCME), September 1986).  The expected response
against the IU  would escalate with the duration and magnitude of the
violation, either based on. the POTW's own enforcement procedures or
the Enforcement Response Guide in the PCME.   As a guide for the cost
to the POTW of  each  type of enforcement  response and the delay that
may have occurred, you may wish to use the table below.  It is based
on EPA's-pricing factors and the enforcement  response timeframes
discussed in the RNC guidance.

Table 2. Resource Cost and Response Tine for  POTW Enforcement Actions
Initial Response to-Violations
POTW Time to Respond* Coat of Action
                       in Workdays
    Telephone calls                    5 days
    Warning Letters                  10 days
    Meeting                          30 days
    Demand Inspections               30 days

Follow-up for Continued Moncompliance

   On-site evaluation       *        15 days
   Meeting                           30 days
   Formal Enforcement
     Administrative                  60 days
     Judicial                        60 days
   Penalty assessment and
     Collection                      60 days
                         0.05-0.2
                         0.2
                         0.5
                         0.5-2.0
                         0.5-2.0
                         0.5

                         10-50
                         30-100

                         2-50
* Response time reflects EPA's expectation as  to  the  amount  of  time  in
which the POTW. should take enforcement action  after notification  of  an
IU violation.   For example, the POTW  initial  response  to  notification
noncompliance should occur within  5 days when  it  is a telephone call
and within 30 days when it is a Demand Inspection.

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                                 -6-
   *
     The time required to complete a specific enforcement response"
should be evaluated based on the enforcement procedures developed by"
the POTW and the size and complexity of the 10.  SIUs with
significant noncompliance would be expected to require more POTW
effort to resolve the noncompliance.  The level of response should be
escalated in relation to the magnitude and duration of noncompliance.
The avoided enforcement costs would increase based on the number of
Ids that were in noncomplia-7e and not addressed by POTW enforcement.
The actual cost can be esti. .ited from salaries.  EPA assumes each work
year consists of 220 workdays after leave and holidays are subtracted.
Typical EPA annual salaries and benefits (assuming 15% of salary) are
as follows: inspectors $32,000, permit engineers $40,000, staff
attorneys and chemists $37,000.  However, it would be appropriate to
use the salary scale of the affected POTW, if available.

     The next three sections discuss the calculation of economic
benefit, gravity, and adjustment to the penalty for peetreatment
implementation violations.  In some cases you may have effluent
violations as well as implementation problems and additional penalty
calculations will be required for these violations.

     2)  0sing BEN

     The BEN User's Manual provides basic instructions for entering
variables and discusses the*effect of changes in economic data and
compliance dates on the estimate of'economic benefit. The Manual
describes the variables that are typically associated with
construction and operation of wastewater treatment systems; however,
there are a few special considerations for developing.pretreatment
implementation costs.  If effluent violations are involved, a separate
BEN run should be made to calculate the economic benefit of inadequate
treatment, avoided operations and maintenance costs for the treatment
system, or any other cause not related to implementation of a
pretreatment program.  The BEN estimates should be combined to develop
the settlement penalty.

     The capital investment for pretreatment is usually related to
sampling and safety equipment, vehicles for inspections, and perhaps
laboratory facilities.  These typically have a shorter useful life  (3
to 7 years)* than that which is assumed for pollution control
equipment (15 years is the standard BEN value for tankage and pumps).
The useful'.life is an optional input variable.
* United States Tax Guide No. 17 categorizes real property,
  vehicles, and equipment according to  its useful life  for
  purposes of depreciation.

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                                 -7-

   ' Annual operating and maintenance costs related to pretreatment
implementation include the costs to the POTW of:   (a) IU permitting;
(b) POTW monitoring, inspections, and analysis of  IU compliance; (c)
legal and technical assistance,(d) cost of taking  enforcement actions,
(e) updating local limits; and  (f) program administration.  The costs
identified for operation and maintenance should include all salaries,
supplies, maintenance, and support necessary to the operation of the
pretreatment program.  Most of  the avoided costs of implementation
will be the O&M expenses  (see previous discussion).  Since annual
operating and maintenance costs and the level of implementation may
vary each year, separate BEN runs may be heeded to determine these
costs, depending on the specific period of noncompliance.*

     The Ben variable "one time, non-depreciable expenditures"  is not
likely to be appropriate for inclusion in the BEN  penalty calculation
for POTW implementation cases.  All expenditures for pretreatment
implementation are likely to be recurring>at some  frequency, so they
are not truly one-time as, for  example, the purchase of land.   Even
the development of local limits and the survey of  industrial users are
likely to require periodic updating.  Most "set-up costs" were
incurred as part of program development.  In addition, a POTW does not
pay income tax, so depreciation does not affect the POTW's economic
benefit.

     Economic benefit should be calculated from the initial date of
noncompliance up to the time where  the POTW was or is realistically
expected to be in compliance.

B) Gravity Component

     The gravity component of the existing Penalty Policy quantifies
the penalty based primarily on  the characteristics and consequences
of effluent violations, although the amendment to  the Penalty Policy
adds a Factor E for non-effluent violations.  The  gravity of
pretreatment implementation violations is evaluated primarily on the
degree and pattern of failure to implement a required activity  and
the potential and actual  impact of  non-implementation.  Thus, some
modification or amplification of the gravity .factors in the CWA Civil
Penalty Policy is needed to reflect the characteristics of
implementation violations.
   BEN will adjust cost estimates  to current year  dollars.
   POTWs are considered "not  for profit"  entities.
                                                                      -.,

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                                -8-
     Putsuant to  the amended  C.WA Civil  Penalty Policy,  five factors
 (A-E)  are u«ed to evaluate gravity.   This Guidance presents the
 relationship of  each factor  to pretreatment implementation.  The
 methodology foe  calculation  of the gravity component is the same as in
 the CWA Penalty  Policy — that is each factor is calculated on a
 monthly basis with each violation presumed to continue until
 corrected.   The  gravity amount equals  the sum of factors A through E
 plus 1,  multiplied by 91,000.00 for  each month of violation.

      Note:   Where effluent violations  also exist, they should be
 considered  in the appropriate monthly  gravity component.  Effluent
 violations  are considered specifically under factor A, and they may
 also increase the levels for factors B, C, and D.  All non-effluent
.violations  would be evaluated under  factor E.  The penalty for
 effluent violations should be added  to penalties for pretreatment
 implementation violations.

      The basis for evaluation of performance on implementation is
 identified  in the RNC Guidance.  The RNC criteria identify the basis
 for evaluating implementation activities to determine the number of
 and most significant implementation  violations.  Of course, where
 actual approved  program requirements vary from the RNC criteria, the
 program requirements should  be the basis for evaluating performance.

      The "Guidance on Bringing Enforcement Action Against POTWs for
 Failure to  Implement Pretreatment Programs", August 4, 1988, discus
 guidelines  for evaluating the severity of pretreatment implementatio1
 violations  (see  Table 3 and  discussion in that guidance).

      The gravity factors as  they are to be applied for pretreatment
 implementation cases are listed below:

 Gravity Factor A.  Significance of the Effluent Violation

      This factor should be applied without change from current CWA
 Penalty Policy methodology to effluent violations where they occur.
 This factor is not applicable to failure to implement violations.

 Gravity Factor B.  lapact of the Violation
      Failure to implement may
 violation^, interference with
 pollutant»^prom inadequately
 contamination which may cause
 or  in extreme cases, a human
 and  all  RNC criteria that ar.e
 selecting  the value.  The vio
 value should be used for each
 where the  potential impact or
 result in POTW permit effluent limit
 the treatment works, pass through of
regulated lUs, and/or sludge
 or contribute to harm to the environment
health problem.  Both effluent violations
 met by the POTW should be evaluated in
lation that gives the highest factor
 month.  The value chosen should increase
 evidence of an actual impact effects

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                                  -9-

-oiore  than one  of  the  listed categories.  Also, where a POTW  is
 Federally funded  and  is potentially damaged, a higher value should be
 assigned:
      (i)    Impact on Human Health; or

      (ii)   Impact on Aquatic  Environment; or

     (iii)   Potential Impact of  Inadequately
            Controlled  IU Discharges on  POTW
Range: 10-Stat Max

Range: 1-10

Range: 0-10
Gravity Factor C.  Number of Violations
Range: 0-5
      Each RNC criterion  that  is met  is counted as a  violation  for  the
month.  The more criteria  that are met the higher the  value chosen
should be.  In addition/ this "number of violations" factor may be
weighted more heavily  to account  for serious  violations other  than the
most  significant violation which  was accounted for in  factor "A" or
"E".  Effluent violations  should  also be included under this factor as
part  of normal Penalty Policy calculations.

Gravity Factor D. Duration of Moncompliance   Range: 0-5

      This factor allows consideration of continuing  long-term
violations of a permit (including effluent limits, schedules,  and
reporting requirements) and should include evaluation  of all RNC
criteria.  The value should be increased if the  same criterion is  met
for 3 or more months.  When the violation is  corrected for that
criterion, a value of  0  is appropriate for the monthly gravity
component in the months  following the correction.

Gravity Factor E.  Significance of Mon-effluent  Violations

      The significance  of a violation of an implementation
requirement is evaluated based on the percent of a requirement that
the POTW has failed to implement.  All of the criteria identified  in
the RNC Guidance should be evaluated to identify the required  activity
for that month in which performance has been  most inadequate.  That
activity will be deemed  the most  significant  pretreatment
implementation violation/ and gravity factor  E should  be determined
for that violation.  Higher values within the range  could be used  for
violations by large POTW programs and for programs with high rates of
IU noncompiiance.  Higher values  may be appropriate  in such cases
because th*. failure to implement  may result in a higher discharge  of
toxic compounds to the environment.  Factor E can also be used to
address other permit violations such as reporting or schedule
milestone violations.

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                                -10-
% of a Requirement that
The POTW Failed to                 Value Range
Implement

80-100%                               3-10

41-79                                 2-7

20-40                         .        1-4.

0-19                                  0-3

C)  Adjustments
                                                *,
    1)  Recalcitrance  (to increase penalty)-   Range:  0-1501 of  the
                                              preliminary  penalty
                                              amount

      In addition  to  the discussion  in the CWA Penalty  Policy,
recalcitrance  includes consideration of  whether the  POTW  continued  in
noncompliance  after  notification  of  the  violations.  The  existence  of
audits or  PCIs and  follow up  letters identifying  these violations to
which the  POTW has  failed to  respond, generally  indicate  that
recalcitrance  shouTd be  increased.   If  the  POTW has  failed  to  comp
with  an administratively-imposed  compliance  schedule,  the        *
recalcitrance  adjustment should be  increased.  Recalcitrance is
 indicated  because the  POTW  was reminded  of  the requirements  and
 notified of  its  violation,  and yet  failed to remedy  the situation.

      2)  Ability to Pay (to decrease penalty).

      The ability to pay adjustment  becomes an issue  when the
 municipality is  incapable  of raising sufficient funds to pay the
 proposed penalty.  Ability  of the municipality (or sewerage authority)
 to pay should  rarely be a  factor  in pretreatment implementation cases
 since few  involve large capitalization projects.   Thus, the economic
 impact on  the  community from a penalty will be relatively small
 compared to the capital and O&M costs associated with the wastewater
 treatment  system.

      Funds to pay a penalty can come from a  variety of sources within
 the municipality including unrestricted reserves, contingency  funds,
 and any annual budget surpluses.  The municipality  could also  make  a
 one  time assessment to the violating lUs or  to all  users of the
 system to cover  the penalty amount,  where  there  is insufficient cash
 on hand to pay the  entire penalty  immediately, a  payment plan  can  be
 developed which  raises the needed  funds  over  a specific  time  period
  (e.g., 6-12 months).  This  spreads the  impact  of  the penalty over a
 longer period.   Where a POTW  chooses to  assess all  users to cover  tv
 penalty,  the  impact is  likely to be small.   Even a  small municipal
 with 3,500  connections  (service  population  about 10,000)  with anl

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                                   -11-
    *
existing  sewer charge of  $10/month could raise rates by 101  ($1) for
12  months and generate-sufficient cash to pay a penalty of almost
$50,000,  which equates  to about $.3S/capita/month.

      In determining whether ability  to pay will become an issue, the
standard  Financial Capability Guidebook procedures can be used.  While
a specific municipality.1 a debt situation could become an issue, the
procedures primarily look at the  increase in user fees which would be
needed to generate the  penalty amount compared to the median household
income (MHI) of the community.  Where the total wastewater treatment
burden divided by the MHI is less than the standard indicators
(between  1.00 - 1.75% of  the MHIis considered an affordable  sewer
rate), ability to pay is  not usually considered to be a problem.

      3.   Litigation Considerations (to decrease penalty)

      The  legal basis and  clarity of  the implementation requirements
of  an approved program  and an NPDES  permit are important factors
in  assessing the strength of the case.  Where requirements are
ambiguous, the likelihood of proving a violation is reduced, and this
may be a  basis for adjusting the penalty amount.*  Otherwise,
assessment of this factor will depend largely upon the facts of the
individual case.

IH.  EXAMPLE OF PEHALTY CALCULATION

     The  RNC Guidance (See pages  12  and 13) includes two examples of
POTWs that failed to implement their approved pretreatment programs.
The "Hometown" example  will be used  as a basis for computing a penalty
to  illustrate this Guidance.  As noted previously, this example does
include a penalty calculation for effluent violations.

A)  Revised Scenario:

Hometown's pretreatment program was  approved in June 1985.   The
annual implementation costs identified in the approved program were
$100,000.00, plus the cost for issuing each SIU permit. The  NPDES
permit required an annual report fifteen days after the end  of the
year, beginning January 15, 1986.  The approved program required that
all 15 permits be issued  by June  30, 1986. An August, 1986,  audit of
the program revealed that the POTW had failed to issue ten required
permits and had not inspected its IUs as of that date.  In addition,
the POTW  failed to submit its 1986 annual report on time.  The State
issued an administrative  order on March 31, 1987 that required sub-
mission of an annual report by April 30, 1987 and permit issuance by
June 30,   1987 and sampling inspections of all SIUs by August 30, 1987.
The annual report- was submitted September 30, 1987
* See OECM/OWEP "Guidance on Bringing  Enforcement  Actions  Against
  POTWs for Failure to Implement Pretreatment  Programs".   August 4,
.  1988, .for further discussion on assessing  the  strength of  a  case.

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                                -12-
but aa of January 31, '1988 only eight permits were issued and half
the ius were not inspected.  This facility was on the Exceptions List
for failure to implement its approved pcetreatment program and for
effluent violations.  Thus, judicial action is appropriate.  Full
compliance was expected by April, 1988.  Instances of noncompliance
are tabulated below for both effluent violations and pretreatment
implementation violations.

   1.  Effluent Violations

Monthly Average Effluent Limit violations
   Permit Limits;    TSS         30mg/l;  BOO               i
   — - —     Cyanide   0.01rag/l;  Copper   0.200 mg/1

                                              Value  (all  mg/1)

       1986                                    TSS   4S
       iyH"                                    Cyanide  0.015
                                              Copper   0.25


       •  1986                                  Cyanide  8.912
                                              Copper   0.3

 November,  1986                               JSS^U  ^^

                                              Copper   0.28
                                              BOD  47


        1987                                  Jyanide 0.016
                                              Copper  0.3
                                              BOO  43
    il< 1987                                       ide 0.021
                                            .  Copper  0.4

       iao-»                                   TSS   44
 June, 1987 .                                  Cyanide 0.014
                                              Copper  0.3

 August, 1987                                 ^41 ^^

                  .                            Copper  0.4

                                               TSS  37
 October,  1987,                                Cyanide  0.016
                                               Copper   0.3
                                                    39
  December,  1987

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   »      •                       -13-


    2.' Pretreatment  Implementation Violations

                                      Initial Date
Description of Violation
      Violations

Failed to Issue permits
 (RNC criterion A)

Failed to Inspect lUs
 (RNC criterion B)

Failed to Submit Annual Report
 (RNC criterion F)
                                     of NoncotnpL lance*

                                       6/33/86
                                        8/30/86
                                        1/15/87
Compliance
    Oate
 601 Issued
 (1/31/88)

 50% Inspected
 (1/31/88)

 (9/30/87)
 *  Under  the  same circumstances,  this could be  the date of program
.approval.

 The minimum civil penalty  for  settlement can be determined as  follows:

 3. Estimates  of  Avoided Costa  foe Implementation  Violations

     The  effluent violations are  indicative of  interference and pass-
 through caused by IU  inputs of cyanide  and metals that should  be
 controlled by implementing pretreatment.  The POTW'has operated and
 maintained secondary  treatment.   Thus,  the economic  benefit is only
 calculated for ptetreatment implementation violations. Since the
 approved  program provided  no information on the cost of  issuing IU
 permits,  an estimated cost has to be developed.   The implementation
 costs are considered operation and maintenance  costs (limited  to
 certain time  periods) for  the  BEN calculation of  economic benefit.
 The BEN inputs and rationale are  presented below  for each violation.
      1)   Issue permits   @  $3,000.00/perrait

           7/86 -  9/87, 10 unissued  permits
           10/87 - 1/88,  7 unissued,permits
                                         avoided cost-$30,000.00
                                         avoided cost-$21,000.00
      EPA uses a pricing  factor  of  40  days  for  issuing major,  non-
municipal, technology-based  NPDES  permits.   SIU permits should be
issued more quickly  because  there  is  less  public notice.   While the
IU control mechanisms  are  likely to require similar  types of
evaluation and technical review as the comparable industries  with
NPOES permits, they  are  also likely to be  smaller in size.  Site and
sampling data should already be available  to the POTW-, and there is no
need  for State certification as there is for EPA issued permits.
Balancing the above  facts  with  the limited POTW experience in issuing
permits, thirty days was selected  as  an average time to issue a permit
at a  cost of $100.00 per day.

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                                 -14-
   '  2)  Inspection costs

          7/86 - 12/86., no inspections  avoided cost-S19,000.00/yr
          1/87 - 9/87,  60% uninspected avoided cost-$ll,000.00/yr
          10/87 - 1/88, 50% uninspected avoided cost-S 9,500.00/yr

      From Table 1, use the sampling and  industrial review
percentage (19% for a medium-size program), multiplied by the total
annual program implementation costs ($100,000).  Therefore,
inspections are estimated to cost $19,000.00/year.  The POTW began
conducting inspections after the audit—40% of the SIUs were
inspected by January, 1987, and 50% were  inspected by October,  1987.

      3)  Annual report - $5,000.00

     Annual report costs are presumed to  be part of program
administration.  This portion was estimated to be 5% of the total
program costs (See Table 1).

B.  Economic Benefit Component

     BEN Inputs for each variable each are shown below:
     1. Case Name^Hometown
     2. Initial Capital Investment* 0
     3. One-time non-depreciable expenditures'
                      0
     Four separate BEN runs were made for avoided costs  from
permitting, inspection, and reporting violations. .The avoided
cost changed as permits were issued and inspections were completed.
The time periods correspond to information obtained from the POTW
in the senario.

                                            BEN Run
4. Annual O&M costs
  (all 1985 dollars)

 a)  permits
    ($3,000 each)

 b)  inspections
    (% inspected)
       30000
(10  unissued)
30000
(10)
               19000
               (0%)
 c)  annual report .   '  •  .

5. Initial Date Noncompliance
30000
 (10)

11000
(40%)
21000
 (7)

 9500
 (50%)
        7/86
         5000

    8/86    1/87
              10/87

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 6. Compliance  Date

 7. Penalty paid
-15-


 7/86

 4/88
12/86

 4/88
9/87

4/88
4/88

4/88
            (Remaining  variables  use  standard values)
 Results  from BEN
Run 1
Run 2
Run 3
Run 4
3,150
20,018
36,659
15,803
        Total      $75,630
    Economic Benefit
0.  Gravity Component
     In developing the gravity amount, both effluent and
pretreatment implementation violations should be  included.  A
table showing the gravity calculation is provided below, along
with a general description of the rationale for selection of
values.

     The values chosen for June-August 1986 reflect both the July
and August effluent violations and  the ten unissued permits which
were to have been issued by June 30.  The failure to issue permits
was identified in the August audit  and treated as the most signi-
ficant violation and given a "3" under Factor E beginning in the
month of July. (This factor could have been higher if the SIUs were
major sources of toxics).  September, 1986 represented  the third month
that the pretreatment implementation violation had continued, so
Factor C was assessed at "1".  Both effluent and  implementation viola-
tions were counted under Factor 0.  The value assessed  for Factor B,
was related to the presumed IU impacts on NPDES permit  violations.
There was no evidence of any impact to the aquatic environment or
human health from the effluent violations.  For January, 1987,
Factors C**nd 0 were increased to reflect the continuing
effluent Md implementation violations and the additional violations
of the AO schedule.  Factors were reduced in September, 1987 to reflect
submission of the annual report, the issuance of  some permits and the
progress with inspections.

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-16-
Factors
Month/Year
June, 1986
July
August
Sept
Oct.
Nov.
Dec., 1986
Jan., 1987
Feb .
Mac.
Ape.
May
June
July
Aug.
Sept.
Oct.
Nov.
Dec.
Jan. 1988
Feb.
Mac.
A
0
3
2
0
3
4
0
0
0
4
5
0
3
0
4
0
3
0
1
• 2
0
a
B
0
1
1
0
0
1
0
0
0
1
2
0
2
0
2
0
2
0
0
0
0
0
C .
0
0
1
1
• 1
1
1
2
2
2
2
2
2
2
2
1
1
1
1
1
1
1
D
0
0
1
1
1
1
1
2
2
2
2
A.
2
2
2
2
1
1
1
1
1
0
B
0
3
3
3
3
3
3
3
3
3
3
3
3
3
3
2
2
2
2
2
2
1
4-1
1
- 1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
Total
1000
8000
9000
6000
9000
11000
6000
8000
8000
13000
15000
8000
13000
8000
14000
6000
10000
5000
6000
7000
5000
3000
                       179,000

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                               -17-
B.  Adjustment Factors

     1.  Recalcitrance

     A factor ranging from 0 percent  (good compliance record,
cooperation in remedying the violation) to 150 percent  (extremely
recalcitrant, despite repeated attempts to encourage compliance)
of the total of the Economic Benefit  and Gravity Components may
be used to increase the penalty based upon the history of
recalcitrance exhibited by the POTW.  In this case, the POTW was
advised of the implementation problems through an audit and an
alternate schedule for compliance was established under an
administrative order.  Implementation was improved, but it was
still inadequate.  A factor of 20% was used because the POTW has
failed to meet an administrative order schedule to fully implement
its approved program.

     Additional penalty .20 x ($75,630 + 179,000) * $ 50,800
     Penalty Running total
                     $ 304,800
     2.  Ability to Pay  (Subtraction)

     Several factors need to be considered in evaluating the
defendant's ability to pay — for example, domestic and industrial
user fees, the cost of implementation relative to other
municipalities, the size of the industrial users, the type of
industrial base, and the financial condition of the city and its
IUs.  The combined bills for SIUs were 10% of all user charges,
and IUs contributed 8% of the flow in 1986.  The Hometown POTW  is
10 MGD, with over 25,000 service connections and a $200 annual
sewer rate.  Assuming each connection represents a household with
a MHI of $20,000, Hometown could afford a rate increase of about
$12 annually per household.  (EPA considers affordable sewer rates
to range from 1.5 to 1.75 percent of the MHI (i.e., $250 to $275
per year)]. The POTW has an A Bond rating, strong financial
condition, and has maintained the same user fees since 1984, prior
to approval of the pretreatment program.  There are no fees for
permit issuance, discharger applications, or IU inspections.  The
results of the financial capability analysis indicate that if
Howmetown used a general sewer rate increase to fund the penalty,
it would be considered affordable.  At this time, no adjustment
for ability to pay seems appropriate.  x             •
Penalty
Running Total
$  304,800

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                                   -18-
          3.  Litigation Considerations (Subtraction)

          The federal case for Hometown is a strong one.  The
     POTW has specific requirements foe permitting and inspecting its
     industrial users.  These are specified in the approved program and
     were incorporated into the NPDES permit in June 1985. The
     peetreatment audit identified specific violations, and the POTW
     began to address them.  There is no evidence that the POTW was
     confused or that the requirements for implementation have changed.
     The failure to implement has contributed to permit limit
     exceedances for cyanide and copper/ which are of concern.  The
     large industrial community is an underused source of revenue for
     implementation and the current implementation violations may have
     provided them with some economic benefit.  Therefore^ there is  no
     .basis for adjustment for litigation considerations.
     Final Penalty  for  Settlement
$ 304,800
      IV.   Intent  of  Guidance

           The guidance  and  procedures set out in this document are
      intended solely for  the use of government personnel.   They are
      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  guidance and procedures and to change them at
      any  time without public notice.  In addition, any settlement
      penalty calculations under  this Guidance, made in anticipation of
      litigation,  are likely to be exempt from disclosure under the
      Freedom of Information Act.  As a matter of public interest, the
      Agency may release this information in some cases.
 •~\, -\ :
^f-/f

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                                                                   VLB.31,
"ENFORCEMENT INITIATIVE FOR FAILURE TO ADEQUATELY IMPLEMENT APPROVED LOCAL
PRETREATMENT PROGRAMS", dated February 1, 1989.

-------

-------
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          FEB   I
MEMORANDUM
SUBJECT:
FROM:
          Enforcement Initiative  for Failure  to Adequately
          Implement Approved Local Pretreatment

          Pr09ram-s
Jam
Director
Enforcement
                                      and  Permits  (EN-335)
TO:
                    ider,
              ee of Water
          Edward E. P.eich
          Deputy Assistant Administrator
            for Civil Enforcement (LE-133)

          Regional Water Management Division Directors
          Regional Counsels
     As part of our continuing policy  to seek .improvement in
the pretreatnent implementation efforts of approved local
pretreatment programs on a national basis, we have decided to
initiate a nationally-coordinated failure-to-implement
pretreatment program enforcement initiative.  This initiative
will address inadequate implementation efforts of local
pretreatment programs by taking formal enforcement actions
against noncomplying POTWs in every Region within a specific
timeframe.

     Effective implementation of approved pretreatment programs
by municipalities is critical to controlling the discharge of
toxic pollutants to surface waters; protecting the substantial
financial investment in POTWs; protecting POTW worker health and
safety; and preventing the contamination of sludge.  Yet, data
from the most recent QNCR report indicates that over 250 POTWs
were reported for various aspects of inadequate pretreatment
program implementation.  Preliminary data from the Pretreatment
Permits and Enforcement Tracking System  (PPETS) indicates that
approximately 47% of POTWs with approved local pretreatnent
programs may be in violation of one or more of the three
pretreatment reportable noncompliance  (RNC) criteria related to
issuance of control iiechanisms, inspections, or adequacy of

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                               -2-

enf or cement against significant industrial users in significant
noncompliance  (SNC) .  Given the fact that 90% of the pre treatment
programs have been approved for at least three years, we believe
that these POTWs have had adequate time to fully implement their
programs.
           •
     Thus, we believe a national enforcement initiative is both
appropriate and necessary to ensure that approved local
pretreatment programs are fully implemented across the country.
We consider such an enforcement initiative as our top water
quality enforcement priority* for this year.  On January 17 and
18, Bill Jordan and John Lyon held conference calls with your
Compliance and Regional Counsel Branch Chiefs and there was
general support from all the Regions for this enforcement
initiative.  In fact, several Regions already had designated
pretreatment enforcement as their top priority.
     The initiative will include both administrative penalty
orders (APOs) and civil judicial actions, but we would like to
see each Region contribute at least one civil judicial referral
to the initiative.  Regions which directly oversee larger- numbers
of approved local pretreatment programs should contribute
additional referrals and administrative penalty orders.  States
which have received approval to administer pretreatment programs
are invited to participate in this- initiative, with State
Attorneys General filing civil judicial cares in State courts.
Where appropriate, Regions and States shoi:.d include key
industrial users which are violating pretreatment standards and
requirements as part of a POTW civil referral or proposed APOs.

     EPA Regions are requested to provide EPA Headquarters with a
proposed list of POTW candidates (including those in States with
approved pretreatment programs) for this enforcement initiative.
Among the criteria which the Regions should consider in the
selection of candidates are the following:

     o    The POTW has been listed on the QNCR for
          pretreatment violations for more than two
          quarters,

     o    The POTW has discharges which impact near-coastal
          waters, and enforcement would support the Agency 's.
          Near Coastal Water Initiative,

     o    The POTW exceeded one or more of the oretreatment
          RNC criteria or other . specif ic requirements in
          their permit or approved program  (The magnitude of
          such exceedances should also .be considered. }, or

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                               -3-
     o    The POTW has unresolved TRC or chronic effluent
          violations  (including heavy metal effluent
          violations) which appear to be related to
          inadequate pretreatment implementation.

All candidates should have an NPDES permit which, at a minimum,
requires implementation of the approved pretreatment program.
Also, the approved program should provide an adequate statement
of program requirements.

     Upon review of the Regions' list of candidates, Headquarters
may inquire about additional POTW enforcement candidates as
appropriate.  EPA'Headquarters staff will be available for two-
day Regional visits (as necessary) to provide a better
opportunity for face-to~face discussion of POTW enforcement
candidates and details of the initiative.

     Key dates in the schedule for this initiative are shown
below:
     o    2/6-3/1/89
                   •^


     o    3/3/89





     o  3/6-4/7/89




     o  3/20-5/31/85



     o  4/3-6/2/89
Review of QHCR, PPETS, etc. by
Region

Submission of POrw
candidates(desiccated as
probable refers s or APOs)
to EPA Headquarters by Regions

Dialogue, negotiation, and- two-day
visits (as necessary) to Regions to
discuss and confirm candidates

Preparation of referral/APO
packages by Regions

Submission of referrals and APOs
{as appropriate) by Regions to EPA
Headquarters

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                                -4-


     o   4/3-7/7/89        Headquarters  review of referrals
                          and  APOs  (as  appropriate)  and
                          subsequent  referral of civil cases
                          to the Department  of Justice

     o   4/3-8/18/89       Civil  judicial  cases filed by  the
                          Department  of Justice and  proposed
                          APOs issued
                »
     o   8/31/89           National press  release regarding
                          the  initiative  (will include
                          similar cases filed and APOs issued
                          since  1/1/89)

     Regarding APOs,  please note that  Headquarters  review of  APOs
 will only  be  required  for those Regions  which have  not  yet
 fulfilled  the concurrence requirements.identified in the guidance
 on  administrative penalties issued  on  August 27, 1987.  Regarding
 referrals,  neither Headquarters nor  the  Department  of Justice
 will stockpile or hold cases  expressly to  fit the proposed  filing
 window  but will continue  to move the cases  through  the  system.

     Documents such  as the August 4, 1988  'Guidance on  Bringing
 Enforcement Actions  Against POTWs for  Failure to implement
 Pretreatment  Programs" and the  December  22,  1988 "Guidance on
 Penalty Calculations for  POTW Failure  to Implement  an Approved
 Pretreatment  Program" should  be utilized in this' initiative as
 well as in other  formal enforcement  actions for failure to
 implement.

     In regard to past civil  referrals and  APOs for failure to
 implement,  for .the" purpose of this  initiative, Headquarters will
 credit  the Regions with civil referrals  which are still in  the
 review  pipeline  but  not yet filed.

     In a  related matter, a preliminary  review of PPETS indicates
 that data  is  still missing for  the  following large  cities:
.Boston, Buffalo,  Detroit, St. Louis, Phoenix, Tucson,   San
'Francisco, Honolulu,  Seattle, and Portland.  Regions should make
 every  effort  to  provide such  data as soon  as possible,  but  no
 later  than March  6,  1989.

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                               -5-

     Thank you for your cooperation  in this effort.  If you have
any questions or concerns in regard  to this enforcement
initiative, please contact Jim Elder  (FTS-475-8488) or Bill
Jordan (FTS-475-8304) in OWEP or John Lyon  (FTS-475-8177) in
OECM.  If your staff wishes to discuss specific details of the
initiative, including the selection  process, proposed Regional
visits, merits of a potential case,  etc., please contact either
Andy Hudock (FTS-382-7745) or David  Hindin  (FTS-475-8547) of our
respective staffs.      **

cc:  Rebecca Hanraer, OW
     David Buente, DOJ
     Cynthia Dougherty,  OWEP
     Susan Lepow, OGC
     Regional Counsel Water Branch Chiefs
     Regional Compliance Branch Chiefs
     Regional Pretreatment Coordinators/Liaisons

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                                                                   VLB.32,
# "Guidance For Developing Control Authority Enforcement Response Plans",
dated September, 1989.  Table of Contents only.

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United States
Environmental Protection
Agency
        Office of Water
        (EN-338)
September 1989
Guidance For Developing
Control Authority
Enforcement Response Plans
  POTWa
CX
        TRACKING XDCWFCXINSPECTIONS
                             " Printed on Recycled Paper

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                             .
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             WASHINGTON, D.C. 20460
                              DEC  41989
                                                           OFFICE OP
                                                            WATER

To All Approved Pretreatment Programs:

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

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

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

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

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

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                              CONTENTS
CONTENTS                                                               PAGE

DISCLAIMER                                                             ii

I.    INTRODUCTION                                                      1-1

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

2.    DEVELOPING AN ENFORCEMENT RESPONSE PLAN                        2-1

     2.1  IDENTIFYING APPROPRIATE PERSONNEL                           2-1
     2.2  REVIEWING THE INDUSTRIAL USER INVENTORY                     2-2
     2.3  ESTABLISHING OR REVIEWING COMPLIANCE MONITORING
         PROCEDURES                                                   2-3
     2.4  CREATING PROCEDURES TO SCREEN DATA                          2-3

3.    EVALUATING THE SEWER USE ORDINANCE                              3-1

     3.1  NATURE AND PURPOSE OF A SEWER USE ORDINANCE                3-1
     3.2  ASSESSING  AUTHORITY TO IMPOSE PRETREATMENT REQUIREMENTS   3-2

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

     3.3  EXAMPLE SEWER USE ORDINANCE ENFORCEMENT PROVISIONS        3-7

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

4.    DEVELOPING AN ENFORCEMENT RESPONSE GUIDE                       4-1

     4.1  ESTABLISHING A RANGE OF ENFORCEMENT RESPONSES              4-1

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

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                          CONTENTS (Continued)
CONTENTS
     5.4   CIVIL LITIGATION

           5.4. t   Legal Authority Necessary to Use Civil Litigation
           5.4.2   When to Pursue Civil Litigation
           5.4.3   How to Pursue Civil Litigation

     5.5   CRIMINAL PROSECUTION

           5.5.1   Legal Authority Necessary to Use Criminal Prosecution
           5.5.2   When to Use Criminal Prosecution
           5.5.3   How to Use Criminal Prosecution
           5.5.4   Advantages and Disadvantages of Criminal Prosecution

      5.6   TERMINATION OF SEWER SERVICE

           5.6.1   Legal Authority Necessary to Terminate Service
           5.6.2   When to Terminate Service
           5.6.3   How to Terminate Service

      5.7   SUPPLEMENTAL ENFORCEMENT RESPONSES

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

5-4.1

'5-4.1
5-4.2
5-4.5

5-5.1

5-5.2
5-5.4
5-5.5
5-5.8

5-6.1

5-6.1
5-6.2
5-6.3

5-7.1


5-7.1

5-7.1

5-7.5
 APPENDIX A • GLOSSARY OF TERMS RELEVANT TO ENFORCEMENT
                                                                                  A-l

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                              TABLES


TABLE                        TITLE                                 PAGE

3-!       EVALUATION OF CURRENT ENFORCEMENT RESPONSES              3-4

5- i. 1      VIOLATIONS WHICH MAY BE ADDRESSED BY A NOTICE OF VIOLATION 5-1.3

5-7.1      SUPPLEMENTAL RESPONSES FOR WHICH SPECIFIC LEGAL AUTHORITY
         IS NECESSARY                                               5-7.3

5-7.2      SUPPLEMENTAL RESPONSES FOR WHICH SPECIFIC LEGAL AUTHORITY
         IS NOT NECESSARY                                           5-7.3


                             FIGURES
FIGURE                       TITLE

5-1.1     EXAMPLE NOV

5-3.1     EXAMPLE CEASE AND DESIST ORDER

5-3.2     EXAMPLE CONSENT ORDER

5-3.3     EXAMPLE SHOW CAUSE ORDER

5-3.4     EXAMPLE COMPLIANCE ORDER

5-4. t     THE CIVIL LITIGATION PROCESS

5-5.!     CIVIL LITIGATION VS. CRIMINAL PROSECUTION

5-5.2     STEPS IN CRIMINAL PROSECUTION

5-6.1     CONTENTS OF NOTICE OF TERMINATION OF SERVICE

5-6.2     EXAMPLE TERMINATION ORDER
PAGE

5-1.4

5-3.8

5-3.10

5-3.12

5-3.14

5-4.7

5-5.2

5-5.7

5-6.4

5-6.5

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                                                                   VLB.33
# "FY 1990 Guidance for Reporting and Evaluating POTW Noncompliance with
Pretreatraent Implementation Requirements", dated September 27, 1989.
                                                                     '2-

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  A
way
 "*<-.<£.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
              WASHINGTON. O.C. 20460
  MEMORANDUM

  SUBJECT:  FY  1990 Guidance for Reporting and Evaluating
           POTW Noncompliance with Pretreataent Implementation
           Requirements
                     	4£—.^—r, „
  FROM:     James af*TT3err Director
           offijjr of Water Enforcement and Permits (EN-335)

  TO:       Regional Water Management Division Directors,
             Regions I-X
           NPDES State Pretreatment Program Directors
      Attached is the final "FY 1990 Guidance for Reporting and
 Evaluating Noncompliance with Pretreatment Implementation
 Requirements".  This Guidance defines criteria for determining
 which POTWs should be reported on the Quarterly Nonconpliance
 Report  (QNCR) for failure to implement pretreatment requirements
 and criteria for determining which pretreatment violations by
 POTWs meet the level of significant noncompliance (SNC).  It also
 establishes timely and appropriate criteria for responding to
 noncompliance for pretreatment implementation violations.  The
 timely and appropriate definition adopted for the pretreatment
 program is the same as for the NPDES program.

      The comments received from you on the August 9, 1989 draft
 were timely and thoughtful.  Perhaps the most frequent comment
 was the recommendation that we drop the separate definition for
 reportable noncompliance (RNC).  As indicated in the August 9
 letter, a workgroup is evaluating possible changes to the
 Quarterly Noncompliance Report and RNC/SNC reporting system.  The
 workgroup should complete its assessment and recommend changes in
 FY 1990.  A final decision as to whether to continue the use of
 both an RNC and an SNC definition will await the recommendation
 of that group.  For FY 1990, we will use both the RNC and SNC
 definition*.
                                         i
      Two commenters suggested that the criterion addressing
 issuance of control mechanisms established an excessively long
 timeframe (180 days) for permit issuance and reissuance.
 Suggestions were made to shorten the timeframe for IU permit
 issuance and reissuance to as little as 90 days.  While we did
 not make this change, we have added to the SNC definition a
 provision that EPA Regions and States may designate a POTW as in
 significant noncompliance if any violation substantially
 interferes with the ability of the POTW to attain program
 objectives.
                                                                3DD9

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                               -2-
     The FY 1990 SPMS requirements include two measures for
POTW pretreatment implementation:  1) WQ/E-5, the number and
percent of approved programs in significant noncompliance with
pretreataent implementation requirements; and 2) WQ/E-IO,
the number of POTWs that meet the criteria for report able
noncompliance.  We will track performance on both these
measures for FY 1990 as a means of evaluating the efficacy of
the new SNC definition.

     Regions and States are expected to initiate timely
and appropriate actions to resolve instances of significant
noncompliance, including POTW pretreatment implementation
violations.  POTWs which meet the definition of SNC for
pretreatment implementation and are not addressed on a timely
basis will be carried on the Exceptions List until they have been
resolved or received a formal enforcement response.  All POTWs
with approved pretreatment programs should be tracked for both
RNC and SNC.

     If you have any questions regarding the use of this
document, you may contact me (475-8488) or Richard Kozlowski,
Director, Enforcement Division (475-8304).  The staff contact is
Anne Lassiter, Chief, Policy Development Branch (475-8307).
Attachment

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    FY 1990 GUIDANCE FOR REPORTING AND EVALUATING
POTW NONCOMPLIANCE WITH PRETREATMENT REQUIREMENTS
                                                    70

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                           TABLE OF CONTENTS
 I.  Executive Summary

 II. Introduction
 III,
IV,

V.
      A.
      B.
      C.
    Background
    Existing' Rule
    Determination of Inadequate Program
    Implementation for QNCR Listing
VI.

VII
  Applying the Criteria

A.  Level I Criteria

     1.  Failure to Enforce Against
         Pass Through and Interference

     2.  Failure to Submit Pretreatment
         Reports Within 30 days

     3.  Failure to Meet Compliance
         Milestones by 90 days or More

B.  Level II Criteria

     1.  Failure to Issue Control Mechanisms
         to Significant IUS in a Timely
         Fashion

     2.  Failure to Inspect or Sample
         Significant Industrial Users

     3.  Failure to Enforce Pretreatment
         Standards and Reporting Requirements

     4.  Any Other Violation(s)  of Concern
         to the Approval Authority

 Compliance Evaluation

 Reporting on the QNCR
     A.
     B.
     C.
    Format
    Description of the Noncompliance
    Compliance Status
Examples  of  Reporting on the QNCR

Response  to  POTW Significant Noncoapliance for
Failure to Implement Approved Pretreatment
Programs
                                                   Page
                                                    1
 2
 3
 4
                                                          7


                                                          7


                                                          7
10

10




11



11



IS



15.


20

20
21
22


23


24

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 Z.  Executive Summary

     The QKCR 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
 framework to achieve a nationally consistent pretreatment
 program, and to compile national statistics on noncompliance for
 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 be
 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 to evaluate and report POTW noncompliance with
 pretreatment requirements and to take formal enforcement action
 where violations are of a significant nature.  The Guidance
 explains the criteria that should be used to evaluate principal
 activities and functions necessary to implement the program.  In
 some cases, approved states and Regions may need to modify the
 program and/or NPOES permit because the existing requirements are
 inadequate or because conditions have changed.  In general, those
 POTWs that meet the definition of reportable noncompliance should
 be priorities for resolving the inadequacies in approved programs
 or permits.  POTWs that meet any Level I criterion or two or more
 Level II criteria are considered to be in significant
 noncompliance.  In addition, the Region/approved State may
designate any failure to implement violation as SNC if it
 substantially impairs the ability of the POTW to achieve its
program objectives.  POTWs with violations which meet SNC
 criteria must resolve those violations before appearing on the
 2nd QNCR or the Region or approved State is expected to take
 formal enforcement action.  Where the violation is  not resolved
and formal enforcement action is not taken on a timely basis, the
 POTW should be listed on the Exceptions List until  such time as
the violation is corrected or the POTW has been put on a schedule
 for correction through formal enforcement.

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II.  INTRODUCTION

      A.  Background

     EPA Regions and NPDES States must report certain permit
violations on the Quarterly Noncompliance Report (QNCR)  which
meet criteria identified in 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
pretreatment program. Prior to September 1987, the interpretation
of adequate implementation was left to the discretion of the
Regions and approved States.

     In September 1987, the Office of Water Enforcement and
Permits issued "Guidance for Reporting and Evaluating POTW
Noncompliance with Pretreatment Implementation Requirements"
which provided a definition of reportable noncompliance (RNC) for
POTW pretreatment program implementation.  These criteria were to
be used in determining when a POTW should be reported on the
QNCR.  This guidance established criteria which covered five
basic areas of POTW program implementation: IU control
mechanisms; IU inspections; POTW enforcement; POTW reporting to
the Approval Authority; and other POTW implementation
requirements.

     Now, based on experience with the use of that definition in
fiscal Years 1988 and 1989, EPA has revised the RNC criteria and
has developed a new definition of significant noncompliance  (SNC)
for POTW's that have failed to adequately implement their
approved pretreatment programs.  The new definition of RNC will
be used to determine which POTWs should be reported on the QNCR
for failure to implement approved pretreatment programs.  The
definition of SNC is used to identify the instances of
noncompliance that are subject to formal enforcement action, if
not resolved on a timely and appropriate basis.

     The purpose of this Guidance is to explain the RNC/SNC
criteria, with examples of how to apply the criteria; describe
how to report noncompliance for POTW pretreatment program
implementation on the QNCR and establish timely and appropriate
criteria for response to significant noncompliance.  This
Guidance should be used as a basis  for reporting POTW
pretreatment noncompliance as required in the Agency Operating
Guidance and included as a performance measure  for EPA and
approved State programs under the Strategic  Planning  and
Management System  (SPMS).

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      ~ff.   8ziating Rule

      The  QNCR is the basic  mechanism  for  reporting violations of
 NPDES permit requirements.   Major' POTW permittees must be
 reported  on the QNCR:

    (1)  if they are 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 (e.g., administrative orders,
           judicial orders,  or consent decrees)  for violations of
           pretreatment  implementation requirements  (except for
           orders addressing schedule  and  reporting violations)
           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.

      2.    Category I pretreatment program noncompliance - A POTW
           must be reported  on the QNCR:

       a)  if it violates  any requirement  of  an  enforcement order
           (except schedule  or reporting requirements as noted
           below),  or

       b)  if it has failed  to submit  a pretreatment report  (e.g.,
           to submit Annual  Report or  to 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 days  from the due date specified in the
           permit or enforcement order.
  Major POTW permittees are those  with  a  dry weather flow of at
least 1 million gallons per day or a  BOO/TSS loading equivalent
to a population of at  least 10,000 people.   Any POTW.(including a
minor POTW) with an approved  local pretreatment program should
have its pretreatment  violations reported on the QNCR.

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      3.».. 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)   a failure of an approved POTW to implement its
               approved program adequately (emphasis added] ,
               including failure to enforce industrial
               pretreataent requirements on industrial users as
               required by the approved program,  or

          c)   any other violation or group of violations which
               the Director or Regional Administrator considers
               to be of substantial concern.

     c.   Determination of Inadequate Program Implementation for
               Listing
     OWEP has developed criteria to evaluate local program
implementation that explain and clarify the existing regulations.
AS stated, these criteria highlight activities that control
authorities must undertake to implement their programs.  These
activities include:

     1)   POTW establishment of IU control mechanisms,
     2)   POTW compliance monitoring and inspections    /
     3)   POTW enforcement of pretreatment standards and
          reporting requirements
     4)   POTW reporting to the Approval Authority, and
     5)   Other POTW implementation requirements.

     Collectively, these criteria provide the framework for the
definition of reportable noncompliance which should be used by
EPA Regions and approved states to report POTW noncompliance with
pretreatment requirements on the QNCR.  These same criteria also
provide the basis for a definition of significant noncompliance
for pretreatment program implementation.  POTWs with pretreatment
violations which meet the level of SNC must either resolve these
violations on a timely basis or the Region or approved State must
take formal enforcement action on a timely basis.  The attached
table, Table 1, identifies the individual violations which
constitute the criteria for reporting noncompliance on the QNCR,
as well as the criteria for SNC.
* The permit  is  the basis for enforcing requirements of the
approved program or the  Part 403 regulations.   It  should at  least
require compliance with  40 CFR part  403  and the approved program
and ideally  it should provide more specific implementation
requirements when they are necessary to  evaluate noncompliance.

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                             TABU 1

     DEFINITIONS OF RBPORTABLE AMD SIGNIFICANT NONCOMPLIANC1
      A POTW should be reported on the QMCR if the violation of
 its approved pretreatment program, its NPDES permit or the
 General Pretreatment Regulations (40 CFR Part 403)  meets any of
 the following Level I or Level II criteria  for inadequate
 implementation of its approved pretreatment program.   A POTW
 should be considered to be in significant noneomDliancq if it
 meets any one of the following Level I criteria or two or more of
 the Level II criteria.  The POTW may also be identified as in
 significant noncompliance if it meets any SUB of the Level II
 criteria if that violation substantially impairs the ability of
 the POTW to achieve program objectives.

 *•   Level I

      1)   Failed to take effective action against industrial
           users for instances of pass through and/or interference
           as defined in 40 CFR Part 403.3 and required in Section
           403.5, and as specified in the approved program or the
           NPDES permit.  Actions taken in response to discharges
           which result in pass through and/or interference that
           failed to eliminate the causal discharge within 90 days
           of identifying the responsible industry or failed to
           place the responsible industry on an enforceable
           schedule within 90 days of identification are not
           considered to be effective, unless otherwise defined in
           an approved enforcement response plan.

      2)   Failed to submit a pretreatment report (e.g., annual
           report or publication of significant violators) to the
           Approval Authority within 30 days of the due date
           specified in the NPDES permit, enforcement order, or
           approved program.

      3)   Failed to complete a pretreatment implementation
           compliance schedule milestone within 90 days of the due
           date specified in the NPOES permit, enforcement order,
           or approved program.
   The term enforcement order means  an  administrative order,
.judicial  order or consent decree.  (See 40 CFR 123.45)

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                        TABLE 1 (Continued)
B.
Laval II
     1)   Failed to issue, reissue, or ratify industrial user
          permits, or other enforceable control mechanisms, where
          required, for at least 90% of the "significant
          industrial users", within 180 days after program
          approval (or after permit expiration), or within 180
          days of the date required in the approved program,
          NPDES permit, or enforcement order.

     2)   Failed to conduct a complete inspection or sampling of
          at least eighty percent of the "significant industrial
          users" as required by the permit, the approved program,
          or enforcement order.

     3)   Failed to enforce pretreatment standards or reporting
          requirements — including self-monitoring requirements
          — as required by the approved program, the NPDES
          permit, or the General Pretreatment Regulations.
          Failed to take appropriate action against a violation
          within thirty (30) days of being notified of such
          violation.  Actions taken in response to incidents of
          significant noncompliance that failed to return the SIU
          to compliance (or in compliance with an enforceable
          compliance schedule) within 90 days of the receipt of
          information establishing significant noncompliance are
          not considered effective unless otherwise defined in an
          approved program enforcement response plan.

     4)   Any other violation or group of violations of local
          program implementation requirements based on the NPDES
          permit, approved program or 40 CFR Part 403 which the
          Director or Regional Administrator considers to be of
          substantial concern.
* see SMC definition for industrial users,  section 3.4.1 of the
PCME.  EPA proposed to use that definition to  identify
significant noncompiiers  for the annual public notification
requirement (section 403.8(f)(2)(vii)).  Significant
noncompliance  (SNC) includes certain  violations of pretreatment
standards, reporting, schedules and enforcement-orders  by  SIUs.

9 Existing QNCR criterion (40 CFR Part 123.45); the violation
  must be reported.        .         .--..'

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 III.   Applying  the  Criteria

      The  criteria for  reporting  POTW noncompliance with
 pretreatment  requirements are based on the General Pretreataent
 Regulations  [particularly 403.8 (f) (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 in this
 Guidance  establish  a basis for determining when a violation or
 series of violations should be reported on the QKCR for
 failure to implement a pretreatment program. If the POTW is
 identified as meeting  one or more  of the criteria, the POTW
 should be reported  on  the QNCR.  If the POTW's violations meet
 the criteria  for significant noncompliance, the violation' must be
 reported  in the QNCR and it must be resolved or EPA or the
 approved  State  must take formal  enforcement action to resolve the
 violation before the POTW appears  on the second QKCR.  This
 definition of "timely  and appropriate11 is the same as for the
 NPDES  program.

      POTW performance  should be  evaluated using the information
 routinely obtained  from pretreatment compliance inspections,
 annual reports, pretreatment audits and Discharge Monitoring
 Reports (DMRs)  as well as any special sources of information.
All annual reports  should include  the compliance status of lUs, a
 summary of compliance  and enforcement activities, and other
 information,  as required by Section 403. 12 (i) of the General
Pretreatment  Regulations.  This  information should be useful to
assess the effectiveness of pretreatment implementation.
Pretreatment  staff  should review the approved program, the KPDES
permit, and any correspondence with the POTW regarding its
pretreatment  program to identify any specific procedures, levels
of performance, or  milestones that may apply to implementation of
the particular  program.
LEVEL r
                       (a POTW is considered to be RMC  and awe for
     any  violation listed belov)

     !•   failure to Enforce Aaainst Pass Throu/ih
          interference

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                                8
     Definitions of industrial user discharges that interfere
with a POTW or pass through the treatment works were promulgated
January 14, 1987 (52 FR 1586).

     Protection against^interference and pass through are
fundamental objectives of implementing a local pretreatment
program. Interference generally involves the discharge of a
pollutant(s) which reduces the effectiveness of treatment such
that a permit requirement is violated.  (If the pollutant that
causes the violation is the same as the permit pollutant limit
that  was exceeded, pass through has occurred.) The POTW is
responsible for identifying and controlling the discharge of
pollutants from lUs 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.  The effectiveness of
POTW actions against lUs that cause interference and pass through
is evaluated based on the timeliness of the POTW response, the
degree to which the problem is abated, and the use of the maximum
enforcement authority required to resolve the problem.

     Whenever an industrial source has been identified as a cause
of such violations, the control authority must respond in a rapid
and aggressive manner to avoid continuing problems, consistent
with the POTWs approved enforcement procedures.  Where there are
no approved procedures, a reasonable expectation would be that
the interference/pass through would be corrected within 90 days
after the industrial source has been identified as causing the
interference or pass through or that an enforcement order setting
an expeditions compliance schedule for corrective action would be
issued within 90 days after the source is identified.  Where the
SIU does not comply with the schedule, the POTW would be expected
to make use of full enforcement authorities to secure compliance.

     Section 403.5 of the General Pretreatment Regulations
requires that the POTW develop and enforce local limits to
prevent interference and pass through from industrial
contributors to the treatment works,  if a POTW has permit  limit
violations that are attributable to industrial loadings to  its
plant, it may also be a violation of the requirement to enforce
local limits.  However, interference or pass  through may  reflect
the fact that the approved program includes  inadequate  local
limits.  If such is the case  the POTW should be required  to
modify its approved pretreatment program.

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     2.
Failure toSubmit Pretreatment  Reports  Within  30 davs
     This criterion already exists under Category I of 40 CFR
Part 123.45(a).  The term "pretreatment report" should be inter-
preted to include any report required by the Approval Authority
from the POTW  (including publication of significant violators/
noncompliers in the newspaper as required by Section
403.8.{f) (2) (vii) of the General Pretreatment Regulations).  Where
specific dates are established for these or other reports from
the POTW, they may be tracked in PCS. When deadlines are missed,
the POTW should be notified immediately because these reports
contain information which is essential to determine compliance
status.  When the due date is missed by 30 days or more, the POTW
should be reported on the QNCR as in noncompliance.  A POTW which
meets this criterion would also be considered in significant
noncompliance.

     3.   Failure to meet Compliance Schedule Milestones bv 90
          Days or more

     This criterion is also included in Category I of 40 CFR
Part 123.45(a).  Compliance schedules are frequently used to
require construction of additional treatment, corrective action
to correct inadequacies in implementation. Spill Prevention
Contingency and Countermeasure plans, additional monitoring that
may be needed to attain compliance with the permit, and any other
requirements, especially the development or revision of local
limits.  The schedules should divide the corrective action into
major steps (milestones) that can be 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
POTW's NPDES 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 regulatory
compliance deadline, the schedule must be placed in an
administrative order, judicial order, or a consent decree
outside the NPDES permit.

    The existing rule for QNCR reporting requires that  all
permittees be listed on the QNCR 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 must be reported as noncompliant on the QNCR.   For  POTW
pretreatment programs, a failure to begin corrective action,
complete corrective action, or attain final compliance  within 90
days of the compliance deadline in an enforcement  order is
considered SNC.

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                                10
B.   LBV1L II CRITERIA (* POTW is considered RNC for meeting any
     criterion and 8NC for •••ti&g tve or more of the criteria
     listed, except that a fOTW may be identified as •••ti&g SNC
     if it meets any on* of th« criteria listed below if tae
     violation substantially impairs tne ability of tne POTW to
     achieve program objections.)

     1.   failure to Issue Control Mechanisms to Significant
          Industrial Users in a Timely Fashion

     Control mechanisms establish enforceable limits, monitoring
conditions, and reporting requirements for the industrial user.
In some cases, an approved program may have a sewer use ordinance
that defines the limits (including local limits) and an
individual mechanism for establishing monitoring conditions- at
each facility.  Technically, if a control mechanism expires,
control of the SIU 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 for issuance,
the POTW should be given a deadline to issue them through an
enforcement order.  Some States include schedules for issuing
specific SIU permits in a POTW's NPOES permit.  Where the POTW
has missed one 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 QHCR as a
schedule violation.

     For failure to issue control mechanisms, where individual
control mechanisms are required by the approved program or the
NPDES permit, the POTW should issue or reissue control mechanisms
to 90% of the SZUs within six months following the required date
or, if there is no required date, within six months after the
program is approved.   Where initial issuance of individual
control mechanisms has occurred, POTWs should be expected to
reissue 90% of required control mechanisms within six months of
expiration.   POTWs that fail to meet these timeframes should be
reported on the QHCR.

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                                11
     Some POTWs have stated that delay in submission of an
application by the SIU or delay in review by a State agency
causes unavoidable delays in issuance of control mechanisms.
POTW should establish a schedule for ZU applications and any
other required preliminary steps which allows for the timely
review and issuance of a control mechanism prior to its
expiration.
                                                              The
      2 .    Failure to Inspect  or Sample  Significant Industrial
           Users
      POTWs are required to  carry out  all  inspections,
 surveillance,  and monitoring procedures necessary to verify the
 compliance status of their  industrial users  independent of
 information provided by the industrial user  [40 CFR 403.8
 (f)(2)(iv)j.   in the PCME Guidance, EPA recommended that the
 Control  Authority conduct at least one inspection and/or sampling
 visit for each significant  industrial user annually.

      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 or  sampling,  these requirements should be used as  a
 basis to evaluate POTW compliance.  If the POTW has failed to
 either inspect or sample at least 80% of  the significant
 industrial users as required by the permit or the approved
 program,  the POTW should be reported  on the  QNCR for its failure
 to inspect.  POTW sampling  of all lUs is  essential to evaluate IU
 compliance where lUs do not submit self -monitor ing information.
 In the absence of specific  inspection coverage requirements in
 the approved program or permit,  the Approval Authority should
 also  report any POTW which  has  not either inspected or sampled at
 least 80%  of all SXUs within a  12 month period.
          Failure to Enforce Pretreatment Standards and Reporting
             u i r emen t s
     3 .
          Raou

          a.   IU Reporting  and  Self -Monitoring  Requirements

     All categorical IUs are required  to  report  at  least twice  a
year (40 CFR 403.12).   POTWs also  have authority to require
monitoring and reporting from non-categorical  IUs.   A» a result,
most POTWs have -established  self -monitoring  requirements for  SIUs
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 an  approved program does not require SIU
self -monitor ing, the visits  and  inspections  conducted by the  POTW
must be sufficient in scope  or frequency  to  assure  compliance.

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                                12
     In evaluating compliance with this criterion, EPA and
approved States should examine the requirements of the NPDES
permit and the approved pretreatment program and determine
whether the Control Authority has established self-monitoring
requirements as required. IU self-monitoring requirements should
specify the location, frequency, and method of sampling the
wastewatar; the procedure for analysis and calculation of the
result; the pollutant limits; and the reporting requirements.
Under certain conditions, SIU violations may trigger additional
self-monitoring (See 403.12(g)).  For each violation the SIU
detects, it must notify the POTW and resample and submit both
sample results for review by the Control Authority.  These
self-monitoring requirements may be applied, in general, through
an ordinance, through specific control mechanisms, or through a
combination of general and specific mechanisms.  Where
self-monitoring is used, it should be required frequently enough
so that in combination with POTW monitoring, compliance of the
SIU can be accurately assessed.

     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 adequately enforce
these requirements once established (i.e., POTW should respond in
writing to all SNC violations for IU self-monitoring and
reporting), the Control Authority should be considered in
noncompliance and listed on the QNCR.

          b.   POTW Enforcement and IU Significant Noncompliance

     The Control Authority must have the legal authority —
usually expressed through a sever use ordinance — to require the
development of compliance schedules by lUs and to obtain remedies
for noncompliance, including  injunctive relief and civil or
criminal penalties [40 CFR 403.8(f)(1)(iv) and 
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                                13
 which the POTW should, follow  to  ensure the compliance of
 industrial users  with pretreatment  standards.  Where such
 procedures are inadequate,  EPA strongly recommends that POTWs
 develop  written enforcement procedures which describe how, when,
 and  by whom enforcement  authorities are applied  (See section 3.3
 of the PCME).  In  fact, amendments to the General Pretreatment
 Regulations proposed  on  November 23, 1989  (40 CFR Parts 122 and
 403)  require POTWs  to develop such  procedures.  These procedures
 must be  approved  by the  Approval Authority.   (After the NPDES
 permit is modified  or reissued to incorporate these regulatory
 changes,  these procedures become enforceable requirements of the
 pretreatment program.)   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 requirements.  In
 evaluating performance,  the Approval Authority should examine
 both whether the  POTW is following  its enforcement procedures,
 where there are such  approved procedures, and whether the program
 is effective in ensuring compliance with pretreatment standards.
 Regardless of  whether there are  procedures, one of the indicators
 the Approval Authority should use in evaluating effectiveness is
 the  level of compliance  of  SIUs  with pretreatment standards.
 where the level of  significant noncompliance  (SMC) of SIUs is 15%
 or greater over a six month period  without formal POTW actions or
 penalties where appropriate,  there  is a reasonable presumption
 that  overall the  Control Authority  is not effectively enforcing
 its program.   To  overcome the presumption of ineffective
 enforcement, the  POTW should  be  able to demonstrate maximum use
 of its enforcement  authorities on a tiaeframe consistent with its
 enforcement procedures or,  in the absence of written procedures,
 with  the  timeframes included  in  this document.

      The  Approval Authority should  also review the nature and
 timeliness of  the actions taken  by  the POTW to obtain compliance
 from  individual SIUs.  As a general rule, EPA recommends that a
 POTW  respond initially to all violations with either formal or
 informal  enforcement  action within  30 days from  the date the
violation is reported or identified to the POTW.  Frequently, the
 initial action will be informal  (e.g., telephone call, warning
 letter, or meeting.)   Where informal action does not bring
compliance, the POTW  should promptly escalate the level of
enforcement response.  As a general rule, escalation should occur
within 90  days of the initial action, if compliance has not been
achieved.   Where  an SIU  continues to violate, so that the pattern
of violations  meets the  criteria for significant noneoapliance,  .
.the violation  should  be  resolved within 90 days of the receipt  of
information which established the SIU to be in SMC or the POTW
should issue an enforceable schedule for resolution of the
noncompliance  within  that 90  days*

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                                14
     Umter certain emergency situations — to protect public
welfare and property  — the initial response should be immediate
and should include a formal enforcement action.  The POTW should
exercise any and all authority that is necessary to resolve
instances of significant noncompliance or establish a schedule
for resolving then.

     The Control Authority should also use its authority to
assess penalties against noncomplying industrial users to
recapture the economic benefit of delaying compliance.  Penalties
would be expected as part of the response to violations of most
compliance schedules and for violations which were related to
interference and pass through at the POTW.  EPA uses a computer
model "BEN" to estimate the economic benefit.  Economic benefit
results from delaying capital expenditures, one-time costs for
construction/acquisition of treatment facilities, and the avoided
cost of operating and maintaining the treatment works.  Control
authorities should use procedures which consider economic benefit
as part of their penalty assessment process.

     The Approval Authority should review the Control Authority's
overall actions carefully to determine whether it has routinely
evaluated the violations and contacted the SIUs in a timely
manner, escalating the response when compliance is not achieved.
If this review reveals that the Control Authority has often 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 in
noncompliance.

     Where the Control Authority is judged to have followed its
procedures in almost all cases, but the level of significant
noncompliance among SIUs is 15% or greater, the adequacy of
control Authority enforcement procedures should be reviewed. If
the procedures are found to be inadequate, the procedure* should
be modified. The; Approval Authority might require modification of
the approved program, through the NPOES permit, or might issue an
administrative order requiring the adoption of new procedures
along the lines of those included in the PCME Guidance.

     Even where the SIUs have a low level of significant non-
compliance, the Approval Authority should review the performance
of the Control Authority to ensure that 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.

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                                IS
      c.   Local  limits

      A  POTW that  has violations of its NPDES permit limitations
 which are attributed to  interference or pass-through from non-
 domestic  contributions,  should be reported on the QNCR (40 CFR
 123.45  (a)).  Likewise,  a POTW which fails to enforce its
 approved  local  limits  should be included on the QNCR.  Just as
 for  limits based  on national categorical pretreatment standards,
 POTWs are expected to  exercise the full range of enforcement
 mechanisms available to  ensure the compliance of industrial users
 with approved local limits.  In assessing the effectiveness of
 enforcement of  local limits, the same criteria should be applied
 as for  enforcement of  national pretreatment standards.

      4.    Any Other Violation(s) of Concern to the Approval
           Authority

      This criterion allows the Approval Authority to identify any
 POTW as in reportable  noncompliance for a single violation or any
 combination of  violations which are judged to be important even
 though they may not be covered by the specific criteria in the
 definition.  These violations might include such violations as
 failure to update an industrial user inventory, failure to staff
 the  pretreatment  program consistent with the approved program or
 NPDES permit, issuance of control mechanisms of inadequate
 quality,  or failure to develop or analyze local limits as
 required  by an  NPDES permit or enforcement order.
IV.
Compliance Evaluation
     EPA or the approved State should-use annual  (or more
frequent) reports, pretreatment compliance  inspections, audits,
any follow-up reports, and DMRs to evaluate the compliance status
of the permittee.  At a minimum, data should be reviewed every
six months to determine whether the POTW is in compliance.  The
Approval Authority should attempt to schedule audits and/or
inspections and receipt of reports to support this six month
review.  Once the facility is 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.  WENDB data elements already include the  date of receipt
of an annual report (or periodic report).   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.

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                                16
     The Pretreatment Permits and Enforcement Tracking System,
(PPETS), has been developed, as a part of PCS, to track the
overall performance of POTWs with their pretreataent requirements
and the compliance rates of significant industrial users.  Host
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 apply 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 once it is listed on
the QNCR through periodic reports from the POTW, compliance
inspections, audits, meetings, or by a 308 letter to the POTW for
compliance data and information on the status of the pretreatment
implementation violation.

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                                17
                              Table  2

         REPORTABLE  NONCOMPLIANCE CRITERIA AND RELATED PPETS
                            DATA ELEMENTS
 Criterion

 Criterion  II-l
 —  Failure to Issue  Control
    Mechanisms
Data Source

   PPETS -
Criterion II-2
— Failure to Inspect SIUs
   PPETS -
Criteria II-2
PCS
— Failure to Enforce
    Standard* and Reporting Requirements

                                PPETS -
Data Element

o  Number of SIUs
   without
   required
   mechanisms*

o  Control
   mechanism
   deficiencies

o  SIUs not
   inspected or
   sampled

o  Number of SIUs*

o  SIUs in SNC but
   not inspected
   or sampled

o  SIUs not
   inspected at
   required
   frequency

o  Inadequacy of
   POTW
   inspections

o  Violation
   summary
               o  Effluent data*

               o  SIUs in SNC*

               o  Adequacy of
                  POTW monitoring

               o  SIUs in SNC
                  with self-
                  monitoring*

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                                18
Criterion
Data Source
Data Element
criterion 1-1
— Failure to Enforce
   against Interference
   and Pass-through
PCS
                            PPETS
o  Number of
   enforcement
   actions*

o  Existing local
   limits

o  Headworks
   analysis

o  Deficiencies in
   POTW
   application
   of standards

o  Violation
   Summary
                   o  Effluent data*



                   o  SlUs in SNC*

                   o  Number of
                      enforcement
                      actions*

                   o  Number of lUs
                      assessed
                      penalties

                   o  Number of
                      significant
                      violators
                      published
                      in the
                      nevspaper*

                   o  Pass Through/
                      Interference
                      incidents

                   o  Deficiencies  i
                      POTW sampling

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                                19
Criterion
Data Source
Data Element
Criterion 1-2

~ Failure to Submit        PCS
  Annual Reports
Criterion 1-3

— Failure to Meet          PCS
      Compliance schedules
                                               o  Deficiencies in
                                                  POTW
                                                  application
                                                  of standards

                                               o  Enforcement
                                                  response
                                                  procedures
                   o  Reporting
                      schedule

                   o  Permit
                      reporting*
                   o  Compliance
                      schedule
                      events*
 * water Enforcement National Data Base (WENDB) data elements
   for which data entry is required, not optional.

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                                20
        rtina 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 Agency. The format is described in Section 123.45(a)  of
the NPDES Regulations.  For each instance of noncompliance,  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 agency should also explain mitigating
circumstances or remedial actions which the permittee may have
planned.  Detailed guidance for preparing the QNCR is available
upon request to 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 codes used by the State
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.

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                                21

      B',.   Description of the Noncompliance

      Under the permittee's name and permit  number,  information
 on each instance of noncompliance must be reported.   For
 pretreatment violations, the description 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:
      Tvoe of violation
   Regulation Suboaraaraph
                                           QNCR  (section  123.45)
 1)  Failure to implement or enforce
    industrial pretreatment requirements
       (Criteria 1-1 and II-l,  -2,  and -3)

 2)  Pretreatment Report - 30 days overdue
       (Criterion 1-2)

 3)  Compliance schedule - 90 days overdue
       (Criterion 1-3)

 4)  Other violation  or  violations of
    concern (Criterion  II-4)
(a) (iii) (B)
(a) (iii) (G)
     The criterion  should  be  listed under  the type of violation
as the example  (Section VI) shows.

     Each violation should include the date.  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 be noted
under comments.  In the examples, all dates on the QNCR  are
written in mix digit numbers  representing  the month, day, and
year.  The date, January 9, 1987 is entered as 010987 for the PCS
generated QNCR.

     The violation  date of some  implementation requirements may
be the date the program was approved,  where the POTW has taken
no action to implement a requirement  since approval of the
program, this beginning date  would be appropriate.  In other
cases, the POTW may have been issued  a specific deadline.  These
deadlines may be established  through  a permit or a compliance
order.  For example, some  programs require annual inspections of

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                                         22
         all SIUs as a condition of the NPDES permit but do not establish
         specific timefraraes.  in the absence of a particular compliance
         date, the specific deadline should be assumed to be one year
         after the effective date of the KPDES permit.  Thus, the initial
         date of the violation is one year after the effective date of the
         permit.

              The Region or approved State should contact the POTW
         promptly when a pretreatment implementation violation is
         detected.  The Region/State should also indicate the action taken
         in response to the POTW's failure to implement an approved
         program on the QNCR.  In determining the appropriate response,
         the Region/State should consider the impact of the violation,
         POTW compliance history, the number of SIUs, and the nature
         and/or duration of the violation.  Initial violations may be
         resolved through training, conferences, or on-site reviews. The
         Regional/State response should be timely and escalate to formal
         enforcement (an administrative order or judicial referral) if the
         POTW fails or is unable to comply in a timely fashion.  The date
         the action was taken should also be indicated.  Planned actions
         by the POTW or its lUs and projected dates should be noted under
         comments.

              c.   Compliance Status

              The QNCR also tracks the status of each instance of
         reportable noncompliance.  Three status codes are usually
         reported:  noncompliance  (NC), resolved pending (RP), and
         resolved (RE).  "Noncompliance" means the violation or pattern
         of violations is continuing. "Resolved pending1* means the
         permittee is making acceptable progress according to an
         enforceable schedule (i.e., through an administrative or judicial
         order)  to correct the violation. "Resolved1* means the permittee
         no longer exceeds the QNCR criteria for which they are listed.
         For the "noncompliance" and "resolved pending* status, the status
         date is generally the last date of the report period.  The status
         date for "resolved" is either the date the noncompliance
         requirement is fulfilled or the last day 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, project
         dates of compliance, and explain agency responses.  Other
         information can-also be reported under comments, including the
         name of noncomplying SIUs; the level of performance or degree
         of failure by the POTW; the names of other permittees that are
         covered by the control Authority; agency plans for training  or
         technical assistance; and the manner in which the agency  learned
         of the violation.
-1

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VI.  gxampla of
                                23
                        nq on the QK
      The following example illustrates how violations and Agency
 responses are reported.   This is a moderate-sized POTW that has
 refused to implement the program.

 Scenario:  Hometown's pretreatment program was approved in June
 1985. The permit required an annual report,  fifteen days after
 the end of each year, beginning January 15,  1986.   The program
 required that permits be issued to 15 SlUs 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.   Hometown
 meets the criteria for SNC.

                             QNCR Listing

                  Hometown WWTP,  Hometown,  US 00007
 INSTANCE OF
 COMPLIANCE
 NONCOMPLIANCE_/  DATE
 STATUS   DATE
                          REG

                       SUBPARA   ACTION_(AGENCY/DATE)
 Issue  permits
 (Criterion  II-l)
 RP  (033187)

 Inspect SIUs
 (Criterion  II-2)
 RP  (033187)

 Submit Annual
 Report
 RP   (033187)
 (Criteria 1-2)
 COMMENTS
                  063086  (iii)(B)   AO #123    (State/033187)
                  083086   (iii)(B)   AO #123    (State/033187)
                  011587   (ii)(C)
Phone call (State/013087)
 AO 1123   (State/033187)
AO .requires) submission  of  annual  report  by 4/30/87,  and permit
issuance and sampling inspections of  all SIUs by 6/30/87.   EPA
Audit 8/30/86 identified violations of permit inspection
requirements Control Authority  includes  two other permittees:
Suburb One, Permit NO.  US  00008 and Suburb Two.  Permit No.  US
00009 who must meet the schedule  for  inspections.

Discussion:  The entry  on  the QNCR for Hometown  shows the  name
and permit number of the facility.  The  Control  Authority  also
covers two other permittees.  Three reportable noncompliance
criteria were exceeded  (see sections  I and II of this guidance)

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                                24
The annual report was due January 15, 1987, according to 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 city which promised to submit the annual
report.  After discussion with the city and its outlying
jurisdictions, an 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 its compliance status is shown as "resolved pending" "RP" for
all three violations.  The comments indicate the compliance
deadlines.

VII. Response to POTW Significant Noncomplianee for Failure to
     Implement Approved Pretreatment Programs

     This Guidance establishes criteria for determining when a
POTW's failure to implement pretreatment program requirements
meets the level of significant noncompliance.  In all instances
where the violation is judged to be SNC, the violation must be
addressed on a "timely and appropriate" basis.  The definition
for "timely and appropriate" for pretreatment implementation will
be the same as for NPDES violations.  That is, the violation must
be resolved or EPA or the approved State must take formal
enforcement action to resolve the violation before the POTW
appears on the second QNCR. In the rare circumstances where
formal enforcement is not taken and the violation not resolved,
the administering agency must prepare a written record to justify
why no action or the alternate action was more appropriate.
Where "timely and appropriate1* enforcement action is not taken,
the POTW will be listed on the Exceptions List and will be
tracked until such time as the violation is fully resolved.  Each
justification for the Exceptions List will be evaluated
individually to determine whether the failure to take action was
justified.  The justification should make clear the reason for
not taking action and discuss such factors as the nature of the
implementation requirement schedule, the expected date of
compliance, and the alternative process that will be used to
resolve the violation.

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VI. SPECIAL ENFORCEMENT TOPICS



     C. SECTION 311

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                                                                  VI.D.I.
"EPA Response to citizen Suits", dated July 30, 1984.

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SUBJECTt  EPA Response to Citizen Suits
FROMi.    Milliaa D. RuckclBhaus
          Administrator

TO*       Regional Adninistrators (Regions X-X)
          Regional Counsels (Regions I-X)
     I recently net with several environaental groups to discuss
their concerns regarding EPA responses to 60-day citisen-Jtuit
notices and the citizen suits themselves.  The environaental groups
have asked us to take several actions in support of citizen suits*

     SPA values the efforts of citixen groups to bring instances
of non-compliance to our attention and to support CPA efforts to
reduce that non-compliance.  Of course, in deciding on its own
course of action, CPA mist review the merits of every citizen suit
notice on a case-by-case basis*  Nonetheless, I greatly appreciate
these groups* efforts to conpleaent the BPA enforcement program
and help promote compliance^
                   'i                               •    .
     During our needing, the citizen groups thanked »e for the
cooperation of EPA employees in responding to information requests .
on non-coop liance.  I would like to pass this "thank you" on to
all of you, and urge all Agency enforcement personnel to continue
to cooperate with citixen groups by promptly responding to these
requests and reviewing 60-day notices*

     As you nay know, the Office of Policy, Planning and Evaluation
(OPPB) is currently conducting a study of citixen suits through a
contract with the Environoental Law Institute (£LI).  OPFE expects
to complete this study by the end of September 1984.  Upon completion
of the study, X will decide whether to issue a detailed EPA policy
statement on citizen suits*                               .      -
cc*  Ross Sandier, Natural Resources Defense Council

LE-130A:A. Danzig Jth:R». 3404: 7/10/84 : 475-6785 sDISKsDANZJCs 1/23

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'•h

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                              JUL 30 1984
Ross Sandier
Senior Attorney
Natural Resources Defense Council
122 East 42nd Street
New York, N.Y.  10168

Dear Mr* Sandier*

     X enjoyed meeting with you and representatives of environmental
groups on June 12, 1984, to discuss your views on citizen suits.
I truly believe that citizen groups have played an important role
in bringing instances of non-compliance to BPA's and the public's
attention.  Your efforts, especially under the Clean Water Act,
have brought us closer to statutory goals, and for this I an grateful,

     In response to your concerns, X have directed the Regional
Offices tos  (1) continue to cooperate with requests for information
on non-conpl lance, and (2) to promptly review 60-day citizen-suit
notices.  (See attached memorandum).  EPA will continue to decide
on a case-by-case basis how to respond to citizen suit notices
after consideration of the merits of the contemplated action and
consistency with EPA enforcement priorities.

     As you nay know, EPA is currently studying citizen suits
through a contract to the Environmental Law institute.  Upon
completion of the study, expected by the end of September 1984,
X will decide whether to issue a more detailed policy statement
regarding how EPA should handle citizen suits.

     Thank you again for expressing your concerns.

                                Sincerely yours,

                                /S/ WILL"" D. KUCXEtSHAUS

                                William D. Ruckelshaus

Attachment
LE-130AsA.Danzigsth:Rm. 3404 : 7/10/84 :475-8785jDlSK:DANZIGi 1/26

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                                                                  VI.D.2.
"Clean Water Act Citizen Suit Issues Tracking System", dated October 4,
1985.

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C. 20460
                         OCT   4
                                                          INHIItt I Ml XI
                                                       AVXOMI'I |\M |

                                                        MllMlUKIMi
MEMORANDUM

SUBJECT:
FROM:
TO:
Clean Water Act Citizen Suit
Issues Tracking System
Glenn L. Unterberger   a:^.^  t
Associate Enforcement Counsel
  for Water

Rebecca Hanmer, Director
Office of Water Enforcement
  ana Permits
          Colburn Cherney
          Associate General Counsel
            for Water

          Ann Shields, Acting
          Section Chief, Policy, Legislation and
            Special Litigation, DOJ

          Regional Counsels, Regions I-X
Purpose

     The purpose of this memorandum is to establish procedures
by which EPA will monitor important case developments involving
national legal and policy issues, in order to decide on an
appropriate position for the government to take regarding those
issues, in citizen enforcement suits brought under §505 of the
Clean Water Act.

     Due to the growing number of $505 enforcement actions,
and the importance of the legal, technical, and policy issues
raised in them, it has become necessary for the Agency to
develop a better system to track national issues arising in
these citizen suits once they are filed.  OECM-Water Division
already maintains a log of citizen notices ot intent to sue.
We will expand the existing system to track subsequent filings,

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                                        - 2 -
           case developments,  and judicial decisions.   In that way,  the
           .Federal government will be in a better position to decide if,
           when, and how to participate in cases which may result in the
           establishment of legal or policy precedents affecting EPA's
           enforcement actions.

                The Regions remain responsible for deciding whether a
           Federal judicial enforcement action is warranted to address the
           violations at issue.  The new Tracking System does not affect
           Regional monitoring, review and recordkeeping systems relating
           to what enforcement response EPA decides to pursue against a
           violator in the wake of a citizen notice.  Instead, the Tracking
           System is intended to enable the government to make timely and
           informed decisions as to whether, for example, it should
           intervene or file an amicus brief in a citizen enforcement suit
           to protect a Federal Interest regarding a legal or policy
           question of national interest.

           Procedures

                EPA regulations (40 CFR 135) provide that CWA "citizen
           notices of intent to sue must be sent to both the Regional
           Administrator (of the Region in which the alleged violations
           occurred) and the Administrator of EPA as well as to the aftected
           State.  My office will notify the Regional Counsel when we
           receive a citizen notice*,           '
                Promptly upon receipt of a $505 enforcement notice (in
           which the Administrator is not a proposed defendant), OECH-water
           will send a short form letter to the prospective citizen plaintiff,
           requesting that a copy of the filed citizen complaint be s«mt
           to my office.  (As of September, 1985, there are CWA amendments
           pending which would require citizen plaintiffs to send complaints
           and consent decrees to the Agency.  If enacted, these amendments
           would reguire a response to this first letter.)  Upon receipt of
           a filed complaint, OECM-Water will then request copies of all
           dispositive pleadings and court judgments or settlements.  It
           is anticipated that voluntary responses to these requests will
           provide OECM-Water with the means to adequately track the
           progress of these suits and any substantial issues they raise
           at trial or on appeal, in the majority of cases.

                OECM-Water will maintain a file for each citizen enforcement
           suit.  As pleadings are received, my office will review them to
           identify those issues raised which are of particular concern or
           interest to the Federal government.  We will also send copa.es
           of all citizen' complaints and other significant documents to
           Regional Counsels when requested or appropriate as well as to
           the Policy, Legislation and Special Litigation  (PLSL) office in
           the Department of Justice.  Furthermore, we will share the
           information received with OWEP, to give the program  office an
           opportunity to review technical and policy issues raised.
-7UD

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      When a legal issue arises  which may merit some  level of
 involvement by the Federal  government, 'such  as the filing of an
 amicus curiae brief,  my office  will coordinate any formal
 response with the Associate General Counsel  for Water  and with
 PLSL at the Department of Justice*  In  those situations, my
 office will also contact the Regional Counsel and the  Director
 of OWEP's Enforcement Division.   This group  will be  responsible
 for collectively deciding,  in a timely  manner, (1) whether
 government action on  a specific issue arising in a citizen suit
 is warranted, (2) what the  government's action should  be, and
 (3)  what roles the participating offices will play in  pursuing
 any appropriate action.

      As part of this  expanded citizen suit tracking  system, my
 office is now initiating the compilation oc  a compendium of
 documents which set out the government's position on general
 issues which have arisen in the context of CWA citizen suits.
 We will share this compendium with you  when  it is completed.

      The procedures described above make up  an interim system
 for tracking national issues in CWA citizen  enforcement suits,
 and will be undertaken at the beginning of PY86.  As other
 Divisions within OECM continue  developing  such systems as
 needed, or as proposed legislative amendments are adopted, the
 CWA procedures may be modified  so as to promote cross-statutory
 consistency in citizen suit tracking.

      If you have any  questions  about this  new citizen  suit
 tracking system, or related CWA $5U5 issues,  please  contact
 me (FTS 475-8180), Assistant Enforcement Counsel Jack  Winder
 (FTS 382-2879), or staff attorney Elizabeth  Ojala (FTS 382-
 2849).
 cc:   Courtney  M.  Price
      Richard Mays
      Directors, Regional Water  Management  Divisions
      David  Buente,  DOJ
      OECM-Water Attorneys
      OECN Citizen Suit  Work Group Members
Note: As of the date of issuance  of  this policy compendium,
this tracking system has not  been implemented by OECM.
                                                             2\(]

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                                                                   VI.D.3,
"Notes on Section 505 CWA Citizen Suits," dated February 3, 1986.

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                                                                   VI.D.4.
"Clean Water Act Section 505: Effect of Prior Citizen Suit Adjudications or
Settlement on the United States Ability to Sue for same violations11, dated
June 19, 1987.

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   "
    •*.
      I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      f            . .    WASHINGTON. D.C. 20460
                         JVN\ 9 *vn
 MEMORANDUM                                   •         •»** "-« w-*:--:

 SUBJECT:  Clean  Water  Apt.Section  505:  Effect of Prior Citizen
          Suit Adjudications or Settlements on .United States'
          Ability  to Sue  for Same  Violations

 FROM:     Glenn  L.  Unterberger  -^- •
          Associate Enforcement Counsel
             for  Water

 TO:       Regional  Counsels
          Regions  I -  X


     The  purpose of this msmo is to clarify,  in response to
 several inquiries  that this office has received, the United
 States' position on the question of whether the federal
 government  is precluded from suing a violator in the face of a
 previous  Clean Water Act citizen enforcement  suit adjudication
 or settlement with  the same defendant for the same violations.
 As indicated in  the attached documents, our position is that the
 United States is in  no way estopped from suing a violator (on
 the same  violations) for separata or additional relief after a
 citizen suit has been  initiated or concluded.  The maximum
 potential civil  penalty liability of the defendant in the U.S.
 action would be  the  statutory maximum reduced by any civil
 penalty assessed in the earlier citizen suit which was actually
 paid into the U.S.  Treasury for the same violations.  This
 position  is supported  and explained in three attachments to
 this memo.

     Attachment One  is the court's order dated March 16, 1987
 in U.S. v. Atlas Powder Company, Inc., Civ. No. 86-6984 (E.D.Pa).
 The court holds  that "the United States is not bound by settle-
 ment agreements or  judgments in cases to which it is not a
 party.*  See also Attachment Two, the United States* memorandum
 in support of a Motion to Dismiss Atlas's Counterclaims, which
 asserts the general  principle that the U.S. is not bound by the
 results of prior litigation by private parties over a given set
 of violations because  the U.S. has interests distinct from
 those of any private citizens.  The memorandum also quotes an
 excerpt from the Legislative History of the Water Quality Act
of 1987, which clarifies that the new WQA provision that
                                                              2121

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provides the United Stitas an opportunity to review ~WA citiz3n
suit complaints and consent decrees «fill not char>.(j^ "ha princip
that the U.S. is not bouni by judgments in those cases.
     Attachment Three is a letter date-1 Apri'l  1., 1997 from tie
Department of Justice to the judge in Student  Public Interest
Research Group of New Jersey v»_ Jersey Central 'Power and Light
Co. ,  Ci". ^o. 33-2840 (D.N.J.).  Tnis Letter discusses in
detail the non-preclusion issue, wit", relevant case citations,
The letter also emphasizes that civil penalties mist be paid to
the U.S. .Treasury and that any monetary payments made 'in settle-
ment of citis-sh suits *hich are not paid to the U.S. Treasury
do not reduce a defendant's potential civil penalty liability
in any future government enforcement action.   The Dep*rt.tient of
Justice is routinely issuing letters such as this to parties to
proposed CWA citizen suit settlements which purport to bind the .
Unitad States or to call for payment of civil  penalties to any
r*cipi-?nt other than the U.S. Treasury.

     If you have any questions on these or related citizen suit
issues, please contact OECM Water Division attorney Elizabeth Ojala
at FTS 382-2349.

Attachments M.^.V;-- t^-A

cc;  Susan Lepow
     David Buente
     Ray Ludwis^wski
     Ann Shields
     James Elder
     Associate Enforcement Counsels
     Water Management Division Directors, Region I-X
     Water Division Attorneys

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                                                  VI.D.5
"Procedures for Agency  Responses  to Clean Water Act Citizen
Suit Activity,1* dated June 15, 1989.

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    %
      1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     V'   "             WASHINGTON. D.C. 20460
                         JUN 151988
                                                       fHtOltf.tHif.nl AND
MEMORANDUM
•"•"•••- — — —

SU9JSCT:


FROM:



TO:
           Procedures  for  Agency Responses .to Clean Water
           Act  Citizen Enforcement Suit Activity

           Glenn  L. Unterberger >^£-»
           Associate Enforcement Counsel
             for  Water

           Regional Counsels, Regions  I-X

           James  Elder, Director
           Office of Water  Enforcement and Permits

           David  Davis, Director
           Office of wetlands Protection

           Susan  Cepow
           Associate General Counsel
             for  Water

           Ann  Shields, Section Chief
           Policy, Legislation and Special Litigation,
           Department  of Justice
Purpose

     The purpose of  this memo  is to set out the general procedures
to be followed by the Environmental Protection Agency, in con- •
junction with the Department of Justice, in responding to and
monitoring citizen enforcement suits brought under Section SOS
of the Clean Water Act, 33 use 1365.

     This memo supersedes prior guidance, issued by this office
on October 4, 1985,  concerning EPA tracking of citizen suits.
That guidance is now obsolete  in light of recent amendments to
Section 50-5 requiring citizen  suit parties to send copies to
.EPA and DOJ of complaints and  proposed settlements, and in
.light of SPA's new ability to  bring administrative penalty
actions and pre-empt potential citizen suits for civil penalties.

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                            - 2 -
The guidance defines coles foe various EPA and OOJ offices in
addressing matters relating to CWA citizen enforcement suits;
however, this guidance in no way affects the fact that the
Regions remain responsible for deciding whether a federal
enforcement action is warranted to address the violations at
issue.

Background

     Clean water Act Section 505(a)(l) authorizes any person
with standing to sue any person who is alleged to be in violation
of certain Clean Water Act requirements, set out in CWA 5505(f).
In such lawsuits, the district courts have jurisdiction to
enforce the Act and to apply appropriate civil penalties under
CWA S309(d).  Prior to filing enforcement suits under CWA
S505(b)(l), however, citizens must give "60-day notice" of the
violations to the Administrator, the State, and the alleged
violator.  These violation notices must be given in the
manner prescribed by the Agency's regulations, found at 40 CFR
135, which require that copies of the n'otices (sent via certified
mail to the alleged violator) be mailed or delivered to the
Administrator, the Regional Administrator, the State, and the
registered agent of corporate violators.  Part 135 provides
that the date of service of the notice is iiie date of postmark.

     Through Section 505, Congress has fa^ ioned a distinct
role for private enforcement under the Clean Water Act.  The
purposes of the citizen suit provision are to spur and supplement
government enforcement.  The required 60-day violation notices
are designed to provide the Administrator (or the State) the
opportunity to undertake governmental enforcement action whet 3
warranted, given Agency priorities and finite resource levels.
Where the government does not pursue such action, the citizen
enforcer with standing may act as a "private attorney general"
and bring the lawsuit independently, for civil penalties and
injunctive relief.

     Historically, in the majority of cases the regions
have not initiated federal referrals as a result of citizen
notices, and thus the citizens are allowed to serve-the role of
"supplemental" enforcers.  This is reasonable in terms of
best use of the Agency's finite resources, and the consistent
setting of federal enforcement priorities, rfhich should not
necessarily be driven by citizen enforcement priorities.

     Experience suggests that private enforcement  is useful  in
helping to achieve Clean Water'Act cjoals  and to promote Clean
Water Act compliance.  However, it is important for the Agency
.to  monitor citizen  lawsuits  to  the extent possible  to  ensure
proper  construction of regulatory  requirements and  avoid proble-
.matic  judicial precedents.   It  is  also  a  good  idea  for  the

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                             -  3  -
 federal government  to  support  the  citizens  where  feasible,  such
 as  by  filing  amicus briefs  in  appellate  cour.ts, in  order  to
 advance our federal enforcement  interests.   Examples  of arnicas
 curiae briefs which have  been  filed  on behalf  of  citizens so far
 include those in  Sierra club v.  Union Oil Co.  (9th  Cir.), sierra
 Club v. Shell Oil Co..  (5th Cir.), and Chesapeake Bav Foundation
 v.  Gwaltnev of Smithfield. Ltd.  (4th Cir. and  S.  Ct.).

 Recent CWA Amendments  Affecting  Citizen  Suits

     The Water Quality Act  (WQA) of  1987 amended  the  Clean
 water  Act, effective February  4, 1987, in two  ways  respecting
 citizen-suit  authorities  and responsibilities.  Generally,  the
 amended CWA requires that the  Administrator  and the Attorney
 General receive copies of complaints and proposed consent
 decrees in citizen  enforcement suits.  In addition, citizen
 suits  for civil penalties may  now  be precluded, in  some cases,
 by  administrative penalty actions.

     WQA S504  provides as follows:

          Section 505(c)  is amended by adding  at  the
    . end thereof  the following new paragraph:
                "(3) PROTECTION OF  INTERESTS  OF UNITED
          STATES. - Whenever any action  is orought
          under this section in  a  court  of the United
          States, the  plaintiff  shall sec :•  a copy  of
          the  complaint on the Attorney Gc-.eral and
          the  Administrator.  No consent judgment
          shall be  entered in an action  in which  the
          United  States is not a party prior to 45 days
          following the receipt  of a copy of the  pro-
          posed consent judgment by the Attorney General
          and  the Administrator."

OECM-Water Division and the Office of Water  are presently
working on proposed regulations  to govern service of  the corn-
 plaints and consent decrees, which will be published  in the
Federal Register  shortly.

     WQA Section  314- amends CWA  S309 (governing federal
enforcement actions) to add new  subsection (g), authorizing
federal administrative penalty actions.  New CWA  §309(g)(6)(A)
and (B) provide that citizens may  not bring  civil penalty
actions under  Section 505 for the  same violations for which (1)
the Secretary  (Army Corps of Engineers) or the Administrator
has commenced  and is diligently  prosecuting  an administrative
action under Section 309(g); (2)the State has commenced and is
diligently prosecuting an action under a comparable state law;  '.
or  (3)  the Secretary, Administrator or State has  issued a final
order and the  violator has paid a penalty under S309(g) or

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                           - - 4 -


comparable state law; unless (a) the citizen's complaint was
filed prior to the commencement of the administrative action,
o£ (b) the citizen's 60-day notice was given (in accordance
with 40 CPR 135) prior to commencement of the administrative
action, and the complaint was filed before the 120th day after
the-date on which the notice was given.

     Thus, under these new amendments, it will be necessary for
the Agency to keep track of when citizen notices are served
(i.e., postmarked), when complaints are filed, and when proposed
consent decrees are received.  Moreover, EPA and DOJ need to
clarify procedures for deciding how, if at all, to review and
respond to citizen enforcement activity.  The following sets out
the Agency's procedures, in conjunction with DOJ, to implement
these responsibilities.

Procedures

(1)  Violation Notices

     when EPA Headquarters receives a copy of a citi.zen
violation notice, the notice is routed to the Associate General
Counsel for Water.  That office logs in t'r-» notice, files the
original, and forwards copies of the notices to the Associate
Enforcement Counsel for water (OECM-Water Division), and the
Director of the Office of Water Enforceme"  and Permits, or the
Director of the Office of Wetlands Protect on, as appropriate.
Under 40 CFR 135, each Regional Administrator must also receive
a copy of the notice directly from the citizen; some regions
have internal tracking systems, usually handled by the water
Management Divisions.  In addition, the Office of Wetlands
Protection will forward Clean water Act S404 notices to their
courterparts at the Army Corps of Engineers.

     Since late 1983, OECM-Water has kept a region-by-region,
chronological log of these citizen notices, recording the name of
one notifier and the potential defendant, the location of the
facility, and the date on the notice letter.  (Recently, OGC
has begun recording the "date of postmark," which is the official
date of service under the regulations.)

     In the regions, the general practice has been'for water
Division personnel or Wetlands program personnel to investigate
the compliance record of the noticed facility, and to contact
the state (if the state runs an approved NPOES program) to
inquire what, if any, enforcement action the state intends to
take.  The program office then makes a determination, with the  .
'office of Regional Counsel,  as to whether to initiate a federal
enforcement action to address the alleged violations.  This
memorandum is not  intended to change the procedures the regions
use to evaluate and  respond  to the  notices.

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                            - 5 -
 (2)  complaints

     As.in the case of violation notices, at Headquarters the
 Complaints are routed through the Office of General Counsel, to
 OSCM-Water Division and the appropriate program office.  The
 Office of Wetlands Protection will forward Clean Water Act S404
 complaints to their counterparts at the Army Corps of Engineers.
 OECM-Water and the Office of Water are currently working together
 to amend 40 CFR 135 to include requirements relating to service
 of complaints on EPA and DOJ.  We expect these regulatory
 provisions to require citizen plaintiffs to send copies of
 complaints to the Regional Administrator in addition to the
 Administrator and the Attorney General,  in the interim, OGC is
 sending copies to the Regional Counsels.  OECM-Water Division
 keeps a log of the citizen complaints.  Attached for your
 information is a copy of the log which reflects citizen complaint
 activity through the end of fiscal year 1987.

     The regions will retain the authority to recommend whether
 to initiate a federal enforcement action against the citizen
 suit defendant (e.g., by intervention in the citizen suit, by
 filing a separate suit, or by commencing an administrative
 action) in order to address the defendant's violations.  The
 regions will also normally have the lead on monitoring active
 Citizen suits from notice and filing to conclusion, within their
 discretion and as resources permit.   Howe ?r, Headquarters
 will get involved in the citizen enforceme c action where
 national legal or policy issues arise which merit federal
 attention (other than intervention as a party to address the
 underlying violations), and each Region is requested to notify
OECM-Water Division whenever such an issue comes to the Region's
 attention.

     For example, Headquarters generally will take the Agency
 lead, working with the Policy, Legislation and Special Litigation
 (?LSL) Section of the Department of Justice, where issues oc
 national law or policy arise which call for participation as
 amicus curiae in the district or appellate courts.  In such
 situations, OECM-Water will be responsible for coordinating
with PLSL, OGCWater, the appropriate Office of Regional Counsel,
and the Office of water to decide collectively (1) whether govern-
 ment action on a specific issue arising in a citizen suit is
warranted, (2) what the government's action should be, and (3)
what roles the participating offices will play in pursuing-any
 appropriate action.  This type of participation might occur
most often in the context of appeals from judgments in citizen
 suits.  However, the Agency will employ the same procedures in
 deciding whether and how to pursue. Federal participation on the
 District Court level.  Examples of issues which the United
states has addressed to date in this context include the scope
 of the upset defense, whether the U.S. can be bound by settlements
 of suits between private parties, and^whether citizens may
 pursue penalties for wholly past violations.

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                                     - 6 -
         (3)
•? ! '
     Th« proposed consent decrees, like the violation notices
and the Complaints, are routed through the Office of General
Counsel1 to OBCM-Water Division and the appropriate program
office.  The office of Wetlands Protection will forward Clean
water Act 5404 proposed consent decrees to their counterparts
at the Army Corps of Engineers.  Until 40 CFR 135 is amended to
require that copies be sent to the Regions also, OGC will send
copies to the Regional Counsels.  OECM-Water Division keeps a
log of these proposed consent decrees.  Attached for your
information is a copy of the log which reflects consent decree
activity through the end of fiscal year 1987.

     Once a copy of a proposed consent decree is received, the
United states has 45 days within which to review the proposed
consent decree and submit comments, if any.  OECM-Water will
solicit comments from the appropriate Office of Regional Counsel,
to formulate the Agency's position on any issues which may
arise in the citizen consent decree.   Unless different arrange-
ments are made (e.g., if Federal intervention is contemplated
to obtain further relief), OECM-Water will take the lead for the
Agency in coordinating with OOJ to formulate proper action by
the United States in response to a proposed consent decree,
such as a comment letter to the court, whenever necessary or
advisable.

     A region will have the opportunity,  - its discretion and
as resources allow, to offer timely case-specific comments on
the adequacy of relief in a proposed citizen suit settlement.
OECM-Water will consider comments, if any, from the Region
received within 35 days after the date the settlement is logged
in by the Administrator's office.  In any event, the United
States is not obliged to offer any comments to the court.   Our
position has consistently been that the federal government is
not bound by the terms of citizen settlements or judgments, as
the U.S. has interests distinct from any private litigants, and
cannot be deprived of the opportunity to bring a subsequent
action for more complete relief, should circumstances warrant.

     PLSL/DOJ will provide copies to OECM-water and the
appropriate Regional counsel of any correspondence submitted to
the court or parties in CWA citizen suits and will work with
designated EPA representatives in conducting any follow-up
activity which'results.

     If you have questions regarding this matter, please contact
David Drelich of my staff at FTS 382-2949.

Attachments

cc:  Regional Water Management Division Directors.
     OECM-water Attorneys
     Doug Cohen, DOJ
     Dan.Palmer (EDRS)

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                                                                     VI.C.I,
"Oil Spill Enforcement", dated January 8, 1974.  Outdated.

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       UNITED "STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C.  23460

                            .  JAN  8  1374
                                                            AHO GEKttiAI. CrU.NSsL
 10;



 Z8C!«s


 susj-
     Segibnal tefcrcement Directors
     ^BrWilisace .and Analysis Directors
     Regional Oil and Hazardous Ma'teriais Coordinator*,
     Assistant Administrator for Zafcrssment and"
     Couaael

  y . Oil Spill Ss£orcemant
Attached is a status report of EPA Oil and Hazardous Materials
 enforcement actions covering the period January 1 to Qct
                                                                 er 1,
 1373.  It shows a great improvement over last'year's record,  "
 although ssse Regions should" apparently be r.ore active.   Scae Regions
 Ti£h-'few'actions reported nay-be relying on strong Coast Guard.'enfSree—'
 sent prpcrjffls. '• -AH Regions  should send ne the Coast Guard  records
 tha'c" would* indicate the nusier of enforcarent actions taken and the
 results to date.   This say present a more cocplete picture of the
 status of spill enforcement activities.
  •.      *     ,
      Z realize that lade of sanjgower and resources may result in the
 inability., to.follow up oil spill referrals, particularly in light of
 the present 'prioritry being rightly accorded to pemit issuance and
 follow-up.. What is needed, Z  believe,  is a core efficient use of
 those Enforcement and Surveillance and  Analysis personnel already
 working ca, cil spill prcbless.  It is particularly issportant  that
 Surveillance  and Analysis personnel work closely with Enforcement
 staffs'to laaxiznize the nurier  of investigations that can be cs=?leted
 and cases that can' be prepared, in addition to the vital job  of oil
 saill clean-up.  Wherever reportsd spills -cannot be investigated by
 the SnTiranfcantal Protection Agency cr  the C. 3. Ccast Guard, a *
 Section 303 information .recesst should  ba sent to the dischargar.
 Rsgisnal A-ir4nistratcr3 ware delegated  the authority to  ac;iinis«sr
•Ssction.303 in the Part 125—WD2S regulations, prcmilgatad Hay 22,.
 1-973 (33 Federal P^sgistar 13531).  You  should also encourage  State
 «««ac.ies .to tsrcvide EPA with evidence obtained Srcm Stata' investigations.

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      Some Regions have already been successfully using Section 303
 letters in their oil enforcement programs.   For those who have not,
 a suggested*forsat is attachad which should be helpful, which was  "
 prepared by Henry Stetina.  Regional ccmmants en this format should
 be forwarded to Sick Johnson, with a copy to Henry Ststina.   •   . •  • •  '

      The following guidelines should apply when a Section.303
.letter is sent to a discharger:

          1.  Section 303 letters should be used when a violator
 reports a spill which ZPA.is unable to•investigate on scene.

          2. • Section 3*03 letters may also be used occasionally to
 supplement EPA or State investigations.'          . •    ...••..-•  .   . .'.

          3.  Section 303 information requests should not be utilised
 to investigate situations which say culminate in criminal prosecution.

         • 4. • Section 308 letters must be posted by "Registered Mail
 — Saturn Receipt Requested."                •   •  •  '   • '•'..._

          5* • Sach Region must carefully maintain a log.indicating
 for each letter the date mailed, the date received and the date a
 response is due.             .        .                          . .

         • 6.  When a Section 3G3 letter is used, the Enforcement
 Division should plan to exercise .Section 309 sanctions if the
•violator fails to respond or if the response contains false state-
 ments ~ the falsity, of which can be established.

          7.  If the complete information submitted in response to the
 letter indicates that a violation did occur, that evidence should be
 referred to the Coast Guard as basis for a Section 311 (b) (6) civil
 penalty.

      A copy of the discharger's response should be automatically
 sent to the Emergency Response Branch in your Region.

      To iarprova oil spill enfsrcenent procedures "within Rag-ions,  and
 to share successful Regional techniques among Regional staffs, we are
 planning -a meeting for a representative of each Oil Enforcement staff
 and their counterpart in ths Sargency P.esscase 3ranch on February 20
 and "21, 1373, in Atlanta, to be conducted in cooperation with the Oil
 and Hazardous Materials Division.  Any suggestions for possible topics

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 .Co be Incladad'in the agar.da should ba  sent to  Patrie«*  O'Co—e*l
 Headquarters.  This-will be  a working lav-l aeeting which wiW
 on legal and investigative^prcblsas.  Caast Guard and Jusf c
 cant oarticisatisn is plir.-:ad.  We  also alaa to discuss  the n«w
 spill prsveaticr. regulatisna, .and thair i=le=antasis.-j.
 Saclssuras

 ess'- CGC Ciron
     •- ^   Reading

     fcicJc Johnson
     Heary Static
     Patricia  c*csaac__
     Assistant Adainistrator for Air s Water Programs

S?ohnsoB: dwk : 12/29/73

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                                                        VI
                           O»
                                      A   O   UJ
                               Ul
                                                     27o.  of Oil Skills
                                                     F.apartad to
                                                     Saergcncy Sranch.
                                                                 So. of Oil Spills
                                                                 ZZ2 P.aporrsd to
                                                             No.:-of Spills
                                                             to Coast. Guard
                                                            Wo.  c£ Spills

                                                            to U. S. Attornsy
                                                             i-J.3.  of Spills
                                                                     i—»rt^ 5
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jraft  letter  fqr Regional Administrators  signature
Gentlemen:

     "The Environmental Protection 'Agency has received a report
'that your company was involved in the discharge of a harmful
quantity of oil, estimated to ba     gal 1.0ns into waters of the
United States, to-wit:  (name of waterway)  near  (city),  (state)
on1 or about   (time, date]  frcrs a   '(truck, pipeline or facility}
which you own (or operatej.

     Tha 1972 Amendments to the Federal Watar Pollution Control
Act (hereinafter, the "Act") prohibits' the discharge of oil or
a hazardous substance into or upon the waters of the United States
in harmful quantities [33 U.S.C. 1321(b)(3}].  Any owner or
operator of a vessel or facility from which oil or a hazardous
substance is discharged shall be assessed a civil penalty by
the Coast Guard of not more than $5,000 [33 U.S.C. 1321(b)(6)].
The definition of harmful quantities of oil appears in Title 40,
Code of Federal Regulations, Section 110.3.

     In order for this Agency to carry out its responsibilities
under the Act, you are required under authority of Section 303
of the Act (33 U.S.C. §1318) to submit a-letter of explanation.
including the specific information liste-d in Attachment A..

     The letter of explanation must be submitted to:  (Enforce-
ment Director, Region address) within fourteen-(14) days of
receipt of this letter.  It must be signed by a duly authorized
official of the corporation or company.  The information, sub-
mitted will be considered in evaluating whether the oil spill
violated Section 311.  (Please note that your reply in no way
constitutes immediate notification of a spill to the appropriate
federal agency, as required by Section 311(b)(5).)  Section-303
of the Act (33 U..S.C. §1315) provides civil and criminal penalties
for failure to submit information required under Section 308  .
and criminal  penalties for knowingly making a false statement
in any submission under Section 308,             .

     If you have any questions please contact (name)-, Attorney
Legal Branch", Enforcement Division, at (phone number).

                                  Sincerely yours,

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                                                                   VI.C.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.

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      ' UNITED STATES ENVIRON MEN': AL PROTECTION AGENCY
                        WASHINGTON, f C.  20AM
                                    197V
 MS.MGHA::DUM
 To: N

 Front;

 Subject:
Regional Enforcement Directors

Director, 3n.forcer.eht Division             '  '

Civil Penalties Collected for Violations of  40  C"R Part-112
Transnittai to USCG Districts for Deposit  in Revolving Fund
Account
      Civil penalties collected f?r violations of the subsections o:?
 section 311 and regulations issued pursuant to section 211 of  th-3 r*PCA
 are being deposited in the revolving fund established by section 311(k)
 of the FWPCA which reads as follows:

           "(k)  There is hereby authorized to be appropriated to
      a revolving fund to be established in the Treasury not to
      exceed S35,3CO,OCO to carry cut the provisions of subsections
      (c),  (d) ,  (i),  and- (1) of this section.  Any other funds
      received by the United States under this section shall also
      be deposited in said fund for such purposes.  Ail suns ancrs-
      priaced to,  or  deposited in, said fund shall remain available
      until expended.

      In compliance with the foregoing, civil penalties collected for
 violations of EPA's  Oil Pollution Prevention Regulations, 40 CTH Part 112,
 are to be  forwarded, by the SPA regional offices, to the sain office of
 the U.S. Coast Guard District within which the violation occurred, for
.inclusion  in the  Coast Guard's revolving fund account established pursuant
 to section 311(k) of the 7WPCA.  The following procedures should be followed:

           (1)   Checks in payment of the civil penalty should be made
      payable to the  "United States of America."  Chock.- nade payable
      to "SPA,"  "Treasurer of the U.S.," etc. arc acc^pcacl-? so is.-;g
      as the amount of the cheek is the sane as the civil r;-jnalty.
      Do not endorse  any such checks.               .

           (2)   The chec>:s should be forwarded to tha U.S.  Coast G-azd
      District with a covsr latter setting out the foilcv.-ing:

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                      (a).   Legal  name and address of owner/operator
                charged with  the-violation.
                      (b)   Oat:c and nature -.-I" via lotion, incl-i-i ii»r a    :     .  •
                citation of  the  relevant seatutsry-.ar.ci' rsytji.-story
                provisions.   (i.e., 'failure  to have SPCC ?la:v  in
                violation  of  40  C?R Part 112.:).
                      (c)   EPA Regional Cffics Enforcement fiUs number.
                      (d)   Daeo of check, nar.c of :x:n.<, jfnoun.-.  rsf check.
                      («)   A  statement thit the check is bcinc;  forwarded
                'for deposit  in the 'J.S.  Coast Guard's revolving fund, and

                 (3)   At times the SPA Part 112 violation will  have as its
           jsnesis facts establishing other  law violations. •whera the Part 112
           /violation  resulted from facts establishing another  Federal low  vio-
           lation, including  but not IL-nitac to the F>??C.Vs section  311
           •provisions relating to oil spills, or failure ty notify, identi-
           fication data en  the  other Federal law violation, for ths purpose
           of avoiding possible  conflicts, should be included  in the transaiittai
           to the USCG.    .
              ; t
              t
                 (41  Where  the violation,  for which the check was  submitted,
           is also the  basis  for a referral to a y.-S. Attorney, the U.S.
           Attorney should  be informed of  the disposition of the SPA civil
           penalty proceeding.
                                               J. 3rian Molioy
rv

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                                                     Attachment A
                              UNITED STATES            ''      ''
        -.,   .  ,      ENVIRQ?«£?!TAL PROTECTION AGENCY
             Report of Oil or Hazardous Material Discharge

  The  following  information  is submitted concerning a discharge of
  oil  or  hazardous material:   .        -
 . 1.   Time and data of discharge.
  2.   Location of discharge, including^:
       a.  name of municipality and state;
       b.  name and-address of industry or commercial, establishment
;-.   '      at which the discharge occurred, if applicable;
 •'•   >  c.." distance from  receiving waterway.
' .3.  'Type of material discharged.
 •"4.   Quantity .discharged.               '              '
  5.'  Quantity of material which eventually  reached the* receiving
       waterway,  and date and time-it was discovered.          '
, • 6.   Type of vessel or  facility (ship, barga,  storage tank,  tank
  ....   truck, etc.) in which  the oil was originally contained.
 : 7. 'Describe in detail  what actually caused the discharge.
  8..  Name and address of owner of  facility  causing the discharge.
 ; 9."  Kane.and address-of operator of facility  causing the  discharge.
 TO,   Describe damage to the environment.
 IV.   Describe stsps the above named owner or operator took to
       clean up the'spilled oil and dates; and times steps were taken.
 12.  -Actions by company to  mitigate damage  to  the environment.
 13..  Measures taken by  your company to prevent future spills.

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 j4   List the federal and state agencies, if any, to which-tire
     owner'or operator nanad in s'and 9 above reported this di
     charge.  Show the.agency, its location, the date and  tirie
     of the notification, and the official, contacted.

15.  List the nzziss and addresses of persons you believe have
     knowledga of the facts surrounding 'this incident.

16.  Maine and address of person completing this .report.

77.  Your relationship, if any, to cvvf.er or cpsrctar.
                   •
13.  List other information which you 'wish to bring to'.the attention
     Of EPA.  For example, number employed by the firm.


 The above answers are true to the best of my knowledge and beltaf.
                                   Signature of person completing
                                   this report.
Date of-Signature;

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                                                                   VI.C.3,
"Spill Prevention Control and Countermeasure (SPCC) Plan Program", dated
April 23, 1975. Outdated.

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      )    UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       -    . WASHINGTON. •; C  204f>0
                               ArR  2 'J i-*'5

 rcm:
Suiject:
           All Regional Administrators

           Acting Deputy Assistant Administrator far ;-?atsr £r.f; reason:
           Director for Oil and Hazardous --'acarials Csr.trcl wivisior.

           Spill Prevention Control ar.i Ccur.tarsiGasure (SPCC)
           Plan Progran .
     This  .-nescrandusi covers a r.urJer cf SPCC isroyran issues
 raised at  the March 27-28 joint meeting of Environmental
           Branch  and enforcement Division representatives
 in San Francisco.

 ..'arr.ins Letto,-3 ts  Violators

     Several  Regions nr«  considering"the transmission of
 letters as a  means  of giving notica^to violations of SPCC require
 ments and obtaining compliance  wichout going through the civil
 penalty assessment  procedures.   The warning letter cevics vas
 discussed vigorously at eha  San Francisco nee ting with string
 arguments made both for and  against varr.ir.g letters.  After
 careful consideration we  have decided that warning Isttars are
 unnecessary and should not be used.   The preferred procedure,
 upon detection of a violation,  is to issue a notice of violation
wich a proposed civil penalty.   The notice cf violation will get
 the attention and compliance response frcsi the owner or cpera-or
 faster than- a naming letter.   As appropriate, the penalty can
be comproniised down to a  much smaller figure or wa: v«d siLi.rtrjrchcr
The notice cf violation,  when used in -his tenner, has -tii-:
 advantages cf a -••arning lettar  but provides acre clout visit no
loss of tir.e.

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• ..ature and Conduct c£  Civil ?atialsv H'.-..:rlt:-.:n

      It is important that everyone connected with  ihe  civil
 penalty hearings provi-ied for in 40 C.F.?.. Part 114 under--
 stand that these hearings are to be infcrr.sl.  They car.
 be ha Id in an office or conference rocn with -he corsual.-vjss
 of a routine meeting.   No fcrr.ai record is necessary.  :-'o
 ur.due attention need be given to the statsriality or relevance
 of statements or evidence offered by participants.  The
 rules of evidence acpioysd in csurtrcctns and formal hearings
 are not appropriate for Part 114 civil penalty rv.ierir.es.  iio
 cross examination is required.   Tha tine and resources of
 Regional attorneys involved vith'these hearings should be
 kept to a.ainiauaa.

      It should be noted that the ?residing Officer at a civil
 penalty hearing can raise as well as lower 3 urcpcssc civil
 penalty.

 Selection of Hearing Officers
 ..^__^^^_«i_«__V_>»_^_«H^_^_>^_^_               ».

      Section 114.S of  the civil penalty regulations sravidt-a
 that the Presiding Officer r.ay  b« any attorney in 2?A '.-.-ho i-.a.-s
 no prior connection with' the case.  To maintain an atnorriisra
 of fairness and impartiality, Regional Administrators si-.ould  not
 appoint Enforcement Division directors or sth^r Znfc-rccncnt
 Division supervisory personnel.   Similarly,  it is desirni;ie tc
 avoid appoint ing v/atar  ^nfcrcesent attorneys.  Because ?f th-:
 informality of the hearing and' the relatively simple rssr-5r.ribiliti.as
 of the Presiding Officer,  Agency Administrative la-./ Judcen  sl;ould
 not be asked to conduct  these hearings.   The r.ost desirc::l-2
 candidates for Presiding  Officers are attorneys in the l-ccicr.il
 Counsel's Office.  Also  accsytaale,  although wit;i some LCS-J cf
 the appearance of impartiality,  are Znforcastent Oivisicn attcrr>cy.<:
 working in non-water programs such as air and pesticides.

 Criteria for Civil Penalty Levels

      The desirability of  ectablishing national criteria ff-r •j-tifci.-.'s  •
 assessment of civil penaltias was discussed  a<: zl-c San :-'rn::ci~-'.-5
 ateeting,  but no conclusion v.'e,s  reached.   «e  have cuci-Jr:! -c- -:.a-n r.
 Headquarters-regional vor^  grsup to doternine whcshcr -ut-::  criteria
 would be desirable and,  if so,  to set up a rnacri:: cr scirc or.har
 system for unifsrsr civil  o«na,lty assessment.

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 Jurisdiction Over Local, Stata, and-i'cdwrixi  facilities
      Dcubt as to whether federal, state, or  local  facilities
 are subject to SPCC requirements has seen raised because  the
 definition of "person" in section-311 dees not explicitly  .
 include federal,-state, and local entities.  Our interpretation
 of section 311 and the SPCC regulations is that local:  scats,
 and federal entities ara subject to SPCC plan preparation
 and implementation requirements.  A General  Counsel's legal
 memorandum to this effect will be distributed shortly.

 Inclusion of Animal and '/scetabla Gils jr. Scctien  211 lafi.-.itio»
 of "-Oil"
oned

ions

ar
      Attached are four le tiers discussing the inclusion c."
 animal and vegetable cils in the section 311 definition of
 "oil."  S5A and the U.S. Coast Guard have always trsated
 spills of -non-petroleum based oils as subject to the civil
 penalty and cleanup provisions of section 311.  However, :iic
 National 2roiler Council and similar organizations have questi
 this  interpretation, and, as a result, many users of animal
 ar.d vegetable oils are r.ot in cer.piiar.ce with the SPCC regulat
 and have not submitted requests fer eictsnsionr. of tir,e for
 compliance.   In his January 5, 1975, letter Alan .xirk s»cdo cle
 £?A's  position that ncn-petroleun oils ars included in t!ic
 section  311 definition of "oil" and that ar.inal and wiu^zzbl-'.
 oil users  are subject to the SPCC plan preparation ar.d i:nn i can. M tui-
 tion recuirer.ants of '.Part 112.

     !fou vili note in Mr. Kirk's January 9 lector and Kick Johnson's
 February 3  letter that,  in view of the good faith effor.s of the
 animal ar.d  vegetable oil users to determine whether ur.eir facilities
.are s-jbject to the SPCC  regulations, we will ccnsic&r ri;qu«s_3 f^r
 extensions  of tine for compliance received fron users of. non-petroleum
 based oils.   Such requests should be approved in cases where
 the requestor can demonstrate his reasonable belief that he
 was not  subject to the 'SPCC program and his firm conmitmenc
 to ccrcplj' fully with SPCC requirements .   Civil penalties far
 failure  to  request oxtansions of time, in accord.mcc wii.j u-c
 timetable set out in ?-irt 112,  should not bs imposed in those
 situations.   Part 112 '.-.-ill i;e amended to clarify 'that, '-lie
 Regional- Administrators  have the • author! '-•;• .to -grant such
extensions  for appropriate reasons in addition to those liscc-;1
in 5112. 2 (f).   Any grant cf aisiwional tiiys should provide fsr

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                                                                   VI.C.4
"Penalty Assessment Procedures under Section 311(j)(2)", dated March 29,
1976.  Outdated.

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         UNITED STA I ES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON. D.C.  20460

                                20 M A D I'i/ix
                                V IVIAK IJ/0-
                                                        OFFICE OF ENFORCEMENT
  MEMORANDUM

  SUBJECT:-  Penalty Assessment Procedures Under Section 311(j){2}

  FROM:     Assistant Administrator for Enforcement

  TO:       Regional Enforcement Directors


       On December 2, 1975,  the Associate General Counsel for  Water
  informed me of the case,  United States v.  Independent 5ulk Transport,
  Inc., 394  F. Supp. .1319,  8 ERC 1202,  (S.D.N.Y.  May  29,  1975),  in
  which Judge Franks1 found  that the requirement  in section 311(b)(6}
  that penalties be assessed only after "notice and opportunity  for a
  hearing" was violated  because both in the  hearing and in  the appeal
  to  the Commandant "matters not disclosed to defendant became part •
  of  the Agency's case record and basis for  decision."

       Similarly,  penalty assessment procedures under section  311(j)(2)
  for violation of SPCC  regulations  (40. CFR Part 112)  must also provide
  "notice  and  an  opportunity  for a hearing."  Thus, the ruling in
  Independent  Bulk  Transport  is applicable to section 311 (j) (2) pro-
 ceedings.  In order to assure that this situation does not recur,
 the following procedures must be followed:

      "1.  Before  the hearing,  the defendant must be  given, copies
 of all materials which have been or will be submitted to the  Presiding
 Officer.  If the materials are too voluminous  to make this practicable,
 the defendant or his attorney  must be notified of an opportunity to
 review all  such materials  and  make copies at their expense.  The
 materials or the opportunity to review and  copy them must be  provided
 in  sufficient time before  the  hearing to allow the "defendant  a•
 reasonable  opportunity  to review and prepare to  refute them.

      "2.  At no time may there be any ex parte communication  con-
 cerning the case between the Presiding Officer and any EPA employee
 or agent engaged in the performance  of investigation or  prosecuting
 functions."

     .If you have any other  suggestions to improvd  this procedure,
please let me.know.  Thank you  for your assistance and cooperation
in this matter.
                                   Stanley /I Legro/
                                                  /

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                                                                 VI.G.5.
"Memorandum of Understanding Between the U.S. Coast Guard and the EPA",
dated August 24,  1979.   Outdated.
                                                                      Irtj

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f..

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                     DEPARTMENT OF TRANSPORTATION

                   UNITED STATES COAST GUARD
MAILING ADDRESS:
U.S. COAST GUARD (G-LMI/81)
WASHINGTON. D.C. 2PS90
      (202)426-1527
                                                          16460
  Mr. Marvin B. Burning
  Assistant Administrator for
   Environmental Protection Agency                    %-        .
  401 M Street, S.W.
  Washington, D.C. 20460

  Dear Mr. Burning:                         ,

  I am signing the Memorandum of Understanding concerning the Assessment of Civil
  Penalties for Discharges of Oil and Hazardous Substances Under Section 311 of the
  Clean Water Act  with  the  understanding that the Coast Guard  and EPA have
  agreed that either agency may terminate this agreement 90 days after having given
  notice to the other agency of its intent to so terminate.

                                       Sincerely,
                                 TW8 Admiral I/. S. Coast CSK
  LIMIT I
  55
lt'» « Uw w*
e»n lhr« with.

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         a.  any indication of misconduct or lack of reasonable care on the part of
the owner, operator, or person in charge with respect to the discharge or  with
respect to the failure on the part of the owner, operator, or -person in charge to
adhere to the guidance of the OSC regarding clean-up'or any policies, procedures,
guidelines, or regulations applicable to clean-up;

         b.   any discharge incident other  than a threat for which payments are
made or  to  be made from  the  section 311(k) fund pursuant  to 33  CFR section
153.407, except where no discharger has been identified;

         c.  any indication of prior violations by the discharger of any provision of
the CWA, or violations of provisions of the CWA other than section 3U(b)(6) CWA
occurring at  the time of the discharge, such as violations of a section"402 permit;

         d.   any discharge incident (other  than a threat)  as  defined in 40  CFR
section 1510.5  (1)  which requires activation (by full  or limited assembly, or by
telephone) of  the Regional Response  Team as required by  40 CFR  section
1510.34(d), as amended; and

         e.  any discharge involving human injury or evacuation, damage to plant or
animal life, or contamination of water supply or underground aquifers.

Other referrals to the EPA may be made on  a discretionary basis.

- I)
                    t/y/vi A
Assistant Administrator for
   Enforcement,
United States Environmental
   Protection Agency
                               dat
                             ing Commandant,
                          United States Coast Guard
(date)

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    MEMORANDUM OF UNDERSTANDING BETWEEN THE ENVIRONMENTAL
       PROTECTION AGENCY AND THE UNITED STATES COAST GUARD
    CONCERNING THE ASSESSMENT OF CIVIL PENALTIES FOR DISCHARGES
       .  OF OIL AND DESIGNATED HAZARDOUS SUBSTANCES UNDER
            SECTION 311 OF THE CLEAN WATER ACT (33 USC 1321)
         The United States Environmental Protection Agency (EPA) and the United
States Coast  Guard (USCG) have determined that it is  necessary to establish
procedures pursuant to which decisions may be made:

         (1) Whether a discharge of a designated hazardous substance is excluded
         from the application of the civil penalty procedures prescribed by section
         3U(b)(6) of the Clean Water Act (CWA); and
                                        :
         (2) Whether action will be taken under paragraph  (A) or under paragraph
         (B) of section 311(b)(6) CWA  to impose a penalty  for the discharge of a
         designated hazardous substance not so excluded.

         The EPA and the USCG agree that decisions as to  whether a discharge of
a  designated  hazardous substance is  excluded from the  application  of section
3U(b)(6) CWA will be made initially  by the  EPA  in cases evidencing particular
potential violation gravity,  i.e., meeting criteria set out  in section  III of  this
memorandum.  In all other cases the decision will be made initially by the agency
providing the On Scene Coordinator to the discharge incident. When a decision is
made that  a discharge is excluded, penalty action under section 311(b)(6) CWA will
be withheld.

         The EPA and the USCG agree that decisions as to whether action will be
initiated to impose civil penalties under paragraph (B) of section 311(b)(6) CWA. will
.be made bv the EPA.  Cases involving USCG responses, which evidence particular
potential violation gravity,  i.e., meeting criteria set out  in section  III of  this
memorandum, will be transmitted  to the EPA for its consideration.  In all cases
where EPA determines that it is appropriate  to initiate civil  penalty action under
paragraph (B)  of section 311(b)(6) CWA, the USCG will withhold the initiation of
civil penalty action under paragraph (A) of section 311(b)(6) CWA.

        This  memorandum  establishes  policies,  procedures,  and  guidelines
concerning the responsibilities  of  the EPA  and the USCG  in carrying out the
foregoing agreement.

        The  respective  responsibilities  of  each  agency specified  in  this
memorandum may be delegated to their respective subordinates consistent with
established procedures.                *
                                      «
        The  EPA  and  the USCG  will review the implementation  of  this
memorandum at least one year from  the effective date of  40  CFR  Part  117 or
sooner if agreed to by both agencies, and will make  any  changes to  the policy,
procedures,and guidelines set forth herein which are agreed to  by both agencies.

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                                  SECTION 1
                                  GENERAL
         The  amendment of 2  November 1978 to section 311 CWA  (Public Law
95-576) excluded certain discharges of hazardous substances  from the application
of section 311(b)(6) CWA.   The  discharges so excluded are:  (a)  discharges in
compliance with  a section 402 CWA  permit,  (b)  discharges  resulting from
circumstances identified and reviewed and made a part of the public record with
respect to a permit issued or modified under section 402 CWA,  and  subject to a
condition in such permit, and (c) continuous or anticipated intermittent discharges
from a point source, identified in a permit or permit application under section 402
CWA, which are caused by events occurring within the scope  of relevant operating
or treatment systems.

      .   In  addition,  this  amendment  created  two  methods  for penalizing
discharges of hazardous  substances.  The first, which already-existed as section
311(b)(6)  CWA prior to the amendment,  authorizes the USCG to assess  a civil
penalty not to exceed $5,000 for the  discharge of oil or a designated hazardous
substance  (section  311(b)(6)(A)).    The   second  method,  created  by the new
amendment,  provides  that  the  EPA,  through the Department of Justice, may
initiate a civil action in Federal district court for penalties not to exceed $50,000
per  spill of hazardous substance, unless  such discharge is the result of willful
negligence or willful  misconduct,  in which  case  the penalty  shall not  exceed
$250,000 (section 311(b)(6)(B)).

         The legislative  history  accompanying the amendment  makes clear that
Congress  intended  to  create a  dual option system for penalizing discharges of
hazardous substances under section 311(b)(6) CWA.  A discharger of a designated
hazardous substance can be penalized under paragraph (A) or paragraph (B), but not
bolfl.  The
discharges.
EPA and the  USCG agree that paragraph
  The  nsnn  win  continue  to  assess
administratively under paragraph (A).
(B)  does  not  apply to ou
oil   discharge  penalties
                                 SECTION n

                               COORDINATION
         When a spill of a designated hazardous substance occurs, the On  Scene
Coordinator (OSC) will prepare a factual report of the incident.  At the minimum,
the report will address those criteria set forth in section III, of this memorandum.

         The OSC will submit this report within 60 days of the spill incident. The
OSC will submit the report to the District. Commander when he is a USCG OSC,
and to the Regional Administrator, when he is an EPA OSC.

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-.,~- --. r\

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         When the  District Commander  reviews the  USCG  OSC's report and
determines  that  one or more  of the criteria set forth in section  III, below  is
applicable to that case, the entire record of that case will be referred to the EPA
Regional Administrator for review. In addition the District Commander will refer
the entire record of:                                   .

         (a) any other case involving a discharge of a designated hazardous
         substance from a point source subject to a section 402 permit or permit
        .application, which, prior to or after the commencement of penalty action,
         the USCG determines is excluded from the application of section 311(b)(6)
         CWA; and

         (b)  any other case which, the District Commander considers appropriate
       '  for possible application of section 3U(b)(6)(B) CWA.  "

         When the Regional Administrator receives a case,  either from an EPA
OSC or upon referral from the District Commander, he will determine:

         (a)  whether the case  is excluded from the application of section 3U(b)(6)
         CWA, and, if not,    '               ".:

         (b)  whether a civil penalty action under section  311(b)(6)(B) CWA will be
         initiated.

The Regional  Administrator will make these determinations within 90 days  of his
receipt of referral documents and will notify the District Commander promptly  of
the  determinations  in  cases  which  have  been  referred.   If  the Regional
Administrator determines that an  action  under  section 311(b)(6)(B) CWA  will be
initiated, the  case will be prepared in the EPA Regional Office and  forwarded  to
the Department of Justice (DOJ) in accordance with established EPA case referral
procedures.

         If  the Regional Administrator determines  that the discharge  is not
excluded from the application  of  section  311(b)(6)  CWA  and that  paragraph  (B)
action is inappropriate, or if EPA Headquarters declines to refer  a Regional case,
EPA will return the case to the USCG for appropriate action under paragraph (A).  *

         Upon  request, each Agency will  make  available to the  other  any  or all
cases, files, and records,  including  OSC reports and  official  determinations,
regarding decisions concerning exclusions or the imposition of section 311(b)(6)(A) or
(B) penalties.   Where there is disagreement as to the disposition of a  particular
case,  the District Commander and  the Regional Administrator will consult  to
resolve the  matter.  If necessary, the matter will be submitted to the respective
Agency Headquarters for final resolution.


                                 SECTION* HI
                                           »
                                  CRITERIA

         The USCG and the EPA agree that if one or more of the following criteria
exists, the District Commander will refer  the case to the Regional Administrator
in accordance with section n of this memorandum:

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C.  20460
                           AUG 1 6 1979
                                                  OFFICE OF ENFORCEMENT
Admiral John B. Hayes
Commandant, United States Coast Guard
United States Coast Guard Headquarters Building
2100 2nd Street S.W.
Washington, D.C.  20590
Dear Admiral Hayes:
     I am signing the Memorandum of Understanding concerning
the Assessment of Civil Penalties for Discharges of Oil and
Hazardous Substances Under Section 311 of the Clean Water Act
with the understanding that the Coast Guard and EPA have
agreed that either agency may terminate this agreement 90
days after having given notice to the other agency of its
intent to so terminate.
                              Sincerely yours,
     A/wvvv
Marvin B. Durning
                                                   Kvw
                                                          •
                                                          V

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                                                                 VI.C.6.
"Jurisdiction over Intermittent Streams under § 311 of the CWA", dated
March 4, 1981.

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                                      MAR -4 1981
SUSJLC7:



FJtCKs



I'O:
                   Jurisdiction Over Intermittent Streams  under £,311 of
                   the Clfcdii Aater Act
                   lidward A. Kurcnt
                   Director* Enforcement Division  (£:.'-J3J)
                   Louise i>.
                   Director, £.nforcc.sent Division, Region  v'll
M
I
.N
.0
"*»
J
\
•n
u
3
•C
              7hc 2nd Coast Guard District, St. I*ouic, Ki&iiouri,
         tr.o issue of whether Clean Mater Act jurisdiction  .auy  oc asserted
         over a seasonal drainage course wfcicii, «it the tin« of  the tpiil,
         contained only intermittent pools of water hut which at  other
         tiiaes flows to A naiiec year-round watercourse.  It has been cucj-
         cjested that the recent 10th Circuit opinion  in Ur.itea  States v.
         Texas Pipe Line Co.-r.pany provides authority for tae proposition ~"
         that unless o &ody of* water ic a "running" or ""lav;ing"  struan
         at the time of a spill, it cunnct be subject to S311 Clean r/atur
         net jurisdiction.
     ?&e Texas ?ipe Lino  cose  involveu an oil spill iron a
pipeline that was struck  by &  bulldozer.   3c£oru the fl-ow could
be ishut off* approximately 6CU barrels of oil escaped.  The oil
spilled into an unnamed tributary  of  a named  croc*, which dis»-
ehartjed into another named cretic,  whicii was a trioutary oc a
navi9able river.  ?ne record at trial indicated that there wan
a small flow of water in  the unnoaed  tributary, but there wac
no evidence that the other streaoa were or were not flowincj.
The Federal Court for the Eastern  District'of Oklahoma held
that the Federal Water Pollution Control  Act  (FtfPCA) applies
to tributaries of navigable v/atcrs regardless of whether there
is a continuous flow of wacer  through the tributaries ta the
navigable water:

          ... the Court is o£ the opinion that the
          PWPCA AA&uoaents oi  iJ?2 are ap?.
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                an oil spill,  ti.ccu-.jn  any  intermediate
                tributaries and eventually into n«ivi jat
                waters at  the  specific Li:-\e ot  ar. oil >:
                inater './as  flowing  in tnc unnaacd 'tri.vatc.ry oc
                the Hod Diver f a navigable river/- was clearly
                one of "the waters of  tue  United States"
                within tnc meaning of  £1362(7), ar.O w«a
                therefore  one  ol: t!«e 'navi.ja&le waters of the
                Jnitetl States" undue Si321(L>}<3) . . . U.S. v
                Texas Pipe Line Co:r.pany, iio. 77-63-C.
                  the  issues  on  appeal to the luth Circuit was whether
      the discharge of oil involves was  into "navigable waters" within
      the neaniivy of  tha  PV/PCA,  The  iJth Circuit 5j:rir*.-,cd the district
      court's jurisdictionai
                Hiiilc  there  ic  nothing in this record to
                show tho effect on  interstate  coamcrco of
                this unnamed tri'-ut-ry,  without question it
                is within  the iiiccndci coverage of the F',i?Crt.
                It v«a flowing  a seall areour.t  of w^t&r at the
                tiae of the  e^ill.   Whether or net the flow  .
                continued  into  the  feed Paver at that tine,
                it obviously would  during iiignific«mt
                rainfall.
The
                         in the Texas
Line decision, to the effect
       tiiut  the unnamed  tributary into winch  tue oil wac spilled was
       flowing at  the  tiae  of  the spill,  has  recontLy bo-en cited i:y u
       parties as  authority £or  the  proposition that unless a acciy ut
       water is «  *rur.nina* or "flowing*  otream at the tirac of a spill,
       it cannot be  ouoject to S3il  Clean water Act jurisdiction.
       lioacvcr, this interpretation  is by no  iaeans dictated cy, the
       language of the ICth Circuit  decision.   Although it is noted in
       tho decision  that the boUy into which  oil vas spilled was flowing
       at the tise of  tho discharge/ it is not at all necessary to
       construe this «s  the essential jurisdictions! fact in the case.
       A persuasive  arguoent can bo  made  that the -Court would have
       affirmed the  federal government's  jurisdictions! determination
       in Texas Pipe Line even absent a showing that water was flowing
       at the ti:sa of  the spill, particularly since it ruled that it
       r-a/tcs no difference  whether th« receivino water body is or is not
       discharging vater continuously into a  connected water course at
          tisc of a spill  £<;r purposes of Clean rfatcr Act jurisdiction*
-• /

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      In
               ui" the aafcicjuity  oc  the Va
                                                  ...
 please ta*ce rsatc ttv*t it continues  to .?•& tno" i:-ay"ition n£
 tnicrcement Luviuisr. that  inter. -.intent  water courses v.M
 ponced and n on- £ lew in. 5 at  tJui  ti.: r:.«tttcr
 afaoulU fco oircctoJ to Jorry Huys of ay  u
V  See discussion of leoislfctivo ftistsry  in Uni ted ^ taces v .
Ashland Oil  and Transportation Co., 504  c'.2'J 1317 (197S), arul
       I> ta tog v% iiolland , J 7 J f • ^upp . C-t>5r  (i7i-73 CH.u; Kla.
i^V4; tor proposition that Congress  intended "waters of the
United States"  co reach to the tull  extent perniaasiilu under
the Constitution.
^/  See United  States v. Phelpa Dodoc Corporation, 3&1 F.^upp*
iidl  (D. Ariz.  i5>72;  for cne ^ropoaitica  tiiat tho t'Wi'CA extends
to all pollutants which are diccnargcd  into any waterway, in-
cludincj normally dry  arrcyos, v/itcre any water >l;ich might flow-
therein could reasonably end up in any  Locy of water, to which
or in which  there is  ycir.e public interest.
cc;
               £ti£orccrcLcr.t Division Directors

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                                                                 VI.C.7,
"EPA Authority to Seek Court Imposed Civil Penalties Under Section
311(b)(6) of the CWA", dated November 19, 1984.  Outdated.

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               UNITED STATES ENVtRONMENTAL PROTECTION AGENCY

                          WASHINGTON. D.C. 20460
                                   I 9  i3C4
                                                                 of
                                                          eCNCffAI. COUNSEL.


 MEMORANDUM


 SUBJECT:   EPA Authority  to  Seek  Court  Imposed  Civil Penalties
           Under  Section  311(b)(6)(B) of The  Clean  Water Act
                                       '
 FROM:
TO:
             Ephraim  S. King
             Attorney       '           /
             Solid Waste and Emergency Response Division  (LE-132S)

            Lisa K.  Friedman
            Associate General Counsel
            Solid Waste and Emergency Response Division  (LE-132S)
  ISSUE PRESENTED



      Region X has  requested  a legal  opinion regarding whether
  Section  311(b)(6)(B)  of the Clean Water  Act (CWA)  grants EPA
  the  authority to  seek court imposed  civil  penalties  for  oil
  discharges.

  CONCLUSION


      A literal reading of Section 311(b)(6)(B) suggests  that
 the Agency may have such authority.   A review of the  legislative
 history of that provision, however,  indicates that it was enacted
 by Congress to modify the Section 311 hazardous substance program
 only.  Consistent with this  indication of Congressional  intent,
 EPA has taken the position in an August 29, 1979 Memorandum of
 Understanding (MOU) with the United  States  Coast Guard (USCG)
 that suoparagraph (B)  "does  not apply to oil discharges."  44
 Fed.   Reg.   50785  (August 29,  1979).  The Agency has  taken the
 same position in its hazardous substance  regulations.  40
 C.F.R.  S117.22(b)  (1983), 44 Fed. Reg.  50774 (August  29,  1979),
 44  Fed. Reg.  10277 (February 16,  19~79).   On the  basis of  relevant
 legislative  history, EPA's role  in proposing and  interpreting
 the  1978  amendments  which added  this  subparagraph to  Section 311
 and a review  of relevant  case  law, I believe that the better
 interpretation of  Section 311(b)(6)(B)  is that EPA  does not
have authority to  seek court imposed civil penalties  relating
to discharges of oil.

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                             - 2 -
DISCUSSION
     A.  Statutory Language

     Subsections 311(b)(6)(A) and (B) of the CWA provide a two
tier penalty system administered jointly by the United States
Coast Guard and EPA.  Under subparagraph (A), the Coast Guard
has exclusive authority, to impose administrative penalties for
discharges of oil and hazardous substances up to $5,000.
Under subparagraph (B), EPA has exclusive authority to commence
civil actions for penalties up to $50,000, and in those situations
involving "willful negligence" or "willful misconduct" up to
$250,000.

     Subparagraph (A) of section 311(b)(6) provides that any
owner, operator, or person in charge of a facility or a vessel
"from which oil or a*'hazardous substance is discharged ...
shall be assessed a civil penalty by the Secretary of the
department in which the Coast Guard is operating of not more
than $5,000 for each offense."  (emphasis added.)  Subparagraph
(A) clearly provides the Coast Guard with authority to impose
administrative penalties for discharges of hazardous substances
and oil.

    Subparagraph (B) provides that "[t]he Administrator, taking1
into account the gravity of the offense, and the standard of
care manifested by the owner, operator, or person in charge,
may commence a civil action against any such person subject to
a penalty under subparagraph (A) ...".  (emphasis added.)Since
the penalties under subparagraph (A) apply to discharges of both
hazardous substances and discharges of oil, it would appear,
based solely on the language of Section 311(b)(6), that the
Administrator may seek civil penalties not only for discharges
of hazardous substances but also for discharges of oil.

     B.  Legislative History

         1.  Introduction

    The 1978 Amendments to the CWA added the penalty provisions
of subparagraph (B) to Section 311 and also deleted certain
other penalty provisions which had been established by the
1972 Amendments to the CWA.  The legislative history of.these
two sets of amendments indicates that -- notwithstanding the
language of the statute — Congress intended EPA's authority
under subparagraph (B) to extend only to hazardous substance
discharges.

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                              - 3 -

          2.  The  1972 Amendments to the Clean Water Act  •'

      .n the 1972 Amendments to the CWA, Congress establishd
 clean-up liability provisions and penalty provisions for the
 discharge of oil  and. hazardous substances.  The provisions
 relating to discharges of oil imposed liability upon the
 discharger for the costs of cleanup, removal, and mitigation
 incurred by the Government under Section 311(c) and (f) and
 authorized the Coast Guard to impose administrative penalties
 up to $5,000 per  discharge.
 i -             •
     The provisions relating to discharges of hazardous substances
 were somewhat more complicated.  Congress distinguished between
 hazardous substances on the basis of whether they were "removable"
 or "non-removable".  For "removable" hazardous substances, the
 administrative penalty and cleanup liability provisions outlined
 above applied in  me same way under the same sections 311(b)(6),
 (c), and (f).  However, for hazardous substances that were
 "non-removable" (and for which the cleanup liability provisions
 were therefore inapplicable),  Congress authorized EPA to seek
 court-imposed penalties under  Section 311(b)(2)(B).  Under
 this subsection,  EPA was required to determine which designated
"hazardous substances could be  removed and, for those that
 could not,, establish penalties of increasing severity which were
 designed to deter  such discharges.   The penalties which could
 be imposed  by EPA under Section 311(b)(2)(B) were intended to
 act as an economic incentive  for  a higher standard of care in
 the handling of non-removable  hazardous substances I/ and,
 therefore,  were muc'-  higher than  those authorized for the
 Coast Guard under  Section 311(b)(6). 21

     In its  regulations implementing  Section 311(b)(2)(B),
 EPA interpreted the term "removable" narrowly to mean only
 those substances  that could physically be removed from water. 3/
 For unlawful  discharges  of such removable substances,  the
 Agency state-  that the cleanup  liability provisions of Section
 311(c)  and  (f)  would  apply.  For  dis-charges of substances
 which could not be physically  removed  from water but which
y   Cong.  Rec.  S18995  (daily ed.,  October 14,  1978)  (remarks
     of Senator  Muskie);  Senate  Environment and Public Works
Committee,  S. Rep.  Ho.  92-414,  93rd  Cong., 1st Sess.  66 (1971).

2J  For the  first  two years  following enactment of Clean Water
Act Amendments, the penalties were not  to exceed  $50,000 per
discharge  incident.  Upon expiration of that period,  the penalty
was increased not to exceed $5,000,000  for the discharge of
non-removable hazardous  substances from vessels,  and  $500,000
from facilities.

I/   43  Fed- Reg.  10488  (March 13,  1978).

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                             - 4 -  .

were, nonetheless, susceptible to mitigation action to minimize
the damage, EPA's hazardous substance regulations provided
that they were subject to both the cleanup liability provisions
of sections 311(c) and (f) as well as the deterrent penalty
provisions of section 311(b)(2)(B).

    These regulations (as well as other Section 311 regulations)
were challenged by the Manufacturing Chemists Association in
federal district court.  Manufacturine Chemists Association
v. Costie. 455 F. Supp. 968 (W.D. La. 1978).The court held
that EPA^s regulations subjecting contain discharges to both
clean-up liability and deterrent penalty provisions created "a
system of penalties which fulfills.not in the slightest the
original legislative intent." Id. at 977.  As the basis for
its ruling, the court relied on the Section 311(a)(8) definition
of "removable" which" explicitly includes "such other acts as
may be necessary to minimize or mitigate damage ..." The court
also referred to a February 18, 1978 letter from Senator Muskie,
which stated:

        Unfortunately, EPA's regulations on this subject
        are deficient .... [Tjhey do not make a distinction
        between those hazardous substances which can and
        cannot be removed from water.  The statute clearly
        intended that the distinction be made in order
        to determine whether a spill of a hazardous substance
        would be subject to a cleanup liability provision
        or the deterrent penalty provision.  Id,' at 979.

        3.  The 1978 Amendments to the Clean Water Acf

    The Manufacturing Chemists Association case triggered the
introduction or a number or Senate amendments to Section 311.
These amendments were added by the Senate to H.R. 12140, an EPA
research and development reauthorization bill, which had already
passed the House.

    The Senate amendments made three major changes in the
Section 311 penalty provisions.  First, they redesignated
Section 311(b)(6) -- the Coast Guard administrative penalty
provision for discharges of oil and hazardous substances — as
Section 3ll(b)(6)(A).  Second, they deleted Section 311(b)(2)(B)
(the court imposed penalty authority which was keyed to the
"removability" of hazardous substance discharges).  Third, the
amendments established a new court-imposed penalty authority
under which the Administrator was authorized to commence a
civil action for penalties of up -to $50,000 against "any such
person subject to the penalty under Section 311(b)(6)(A)."  It
is this provision which was enacted as Section 311(b)(6)(B).

    Congress* intent in adding Section 311(b)(6)(B) was discussed
during Senate and House floor debates on the amendments to

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                              -  5  -


 H.R. 12140.   The legislative  history on the  purpose  of the
 penalty provision is  remarkably consistent on both sides  of
 Congress and focuses  exclusively  on  its application  to hazardous
 substance discharges.     '            '        .    .

     Senator  Muskie explained  the  addition of Section 311(b)(6)(B)
 as follows:

         [Tjhe amendment  would establish two  options  for pena-
         lizing dischargers  of hazardous substances.   The  rirst
         option,  which  is already  in  the statute  1 Section  311(b)
         (6)(A)j  consists of an  administratively  assessed  penalty
         of up to $5,000  for each  violation.  The second option
         would be a civil action in Federal District  Court tor
         penalties not  to exceed $50.000 per  violation,  unless
        •the  discharge  was the result  of willful  negligence or
         misconduct, in which  case the penalty maximum would be
         $250,000 per discharge.   The  amendment specifies  the
         factors  the court would assess  in establishing  the
         penalty.   Cong.  Rec.  S18995  (daily ed.,  October 14,
         1978)   (emphasis added.)

     Senator  Stafford,  the sponsor of  the amendment opened his
 own  explanatory  comments by inserting into the record without
 objection a  letter  from  EPA's Assistant Administrator for
 Water and Hazardous Materials,  Mr. Thomas Jorling, to Senator
 Muskie.   In  that  letter,  Mr.  Jorling  explained the impact of
 the  Manufacturing  Chemists  Association  decision  and  requested
 that the  Senateconsider addingto the  House R&D bill,  H.R.
 12140,  a "non-controversial legislative proposal" which would
 resolve  the  issues  ruled on by  the Court.    Id.  at S19257.  With
 respect  to the question  of  hazardous  substance penalties,  Mr.
 Jorling  explained  the  purpose of  Section 311(b)(6)(B)  as
 follows:                             '

        The  amendments we propose basically place hazardous
         substances  on  a  par with  oil  in how  they relate to
         the  major components  of Section 311,. with one major
        exception.  ,Rather  than the $5,000 penalty limit
        on oil,  the limit for hazardous  discharges would  be
        $50,000.  Id.    (emphasis added.)

     Following his  insertion of  EPA's  letter  into the
record, Senator Stafford  elaborated at greater length on  the
purpose of Section 311(b)(6)(B):

        [T]he changes place hazardous substances
        on a par with oil in  their relation to the
        major components of Section 311, except  that
        the maxiaum civil penalty for their discharge
        would be $50.000. compared with $5.000 ror oil....

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           •....     - 6 -                         ;.

        The  $50,000 maximum involves a significant reduction
        from the existing $500,000 liability for facilities
        and  $5,000,000 liability for vessels.  Id., at S19258
        (emphasis added.)

    Senator  Stafford's explanation 4/ appears to reflect an
intention that Section 311(b) (6) (B)~"replace the hazardous
substance deterrent penalty provisions of Section 311(b)(2)(B)
contained in the 1972 Act.  The first paragraph of his comments
indicates that the penalties for discharges of hazardous substances
and oil were intended to be different:  $50,000 for hazardous
substances "compared with $5,000 for oil."  The second paragraph
makes clear  that while Section 311(b)(6)(B) represents a "reduction"
in the 1972  hazardous substance deterrent penalties,  it is in no
way intended to eliminate them or fundamentally change their
original application and purpose.

    On the House si3e, Representative Breaux introduced the
Senate amendments to H.R. 12140 with general explanatory comments
similar to those of Senators Muskie and Stafford.  He explained
that "the bill amends Section 311 of the Act to provide for a
program of notification, cleanup, and penalties for the discharge
of hazardous substances" and that it "would amend Section  311
in such a way as tomeet the court's concerns ..." Cong. Rec.,
H. 13599 (daily ed., October 14, 1978) (emphasis added).
Representative Johnson, Chairman of the House Committee on
Public Works and Transportaton, also spoke in favor of the
bill and explained that "H.R. 12140 would amend Section 311 of
the Federal Water Pollution Control Act concerning the regulation
of hazardous substances."  Id. at 13599.  Chairman Johnson also in-
troduced into the record a Tester received from EPA Assistant Admin-
istrator for Water and Hazardous Materials, Mr. Thomas Jorling,
which further explained the need for such legislation in terms
almost identical, to the letter received by Senator Muskie.

    C.  Memorandum of Understanding And Implementing  Regulations

  .  EPA and  the Coast Guard executed a Memorandum of  Understand-
ing which established procedures under which the two  agencies
would determine whether a hazardous substance discharge should
appropriately be subject to any 311(b)(6) penalty and, if so,
whether it should be a Coast Guard adminstrative penalty or an
EPA civil action penalty.  (44 Fed. Reg. 50785, August 29,
1979).  The MOU refers to Congress' intent to create  a dual
option system for penalizing discharges of hazardous  substances
under either Section 311(b)(6)(A) or Section 311(b)(6)(B).
On the question of whether Section 311(b)(6)(B) applies to
discharges of oil, Section I of the MOU simply concludes with
the statement that "The EPA and -the USCG agree that paragraph
(B)  does not apply to oil discharges."  Id.
4/  This view was concurred in by Senator Muskie.  Cong.
    Rec., supra at S18996

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                              - 7 -
     While no further explanation of the basis for this agreement
 is contained in the MOU, EPA's proposed rulemaking to implement
. Section 311(b)(6)(B) specifically addresses the point:

         The legislative history supporting the November 2,
         1978 amendment does not demonstrate an intent to
         change the penalty structure under Section 311 for
        • oil spill situations.  Therefore,  EPA does not
       .  intend to apply the 311(b)(6)(B) penalty to discharges
         of oil."  44 Fed. Reg. 10277 (February 16, 1979).

 The Agency addressed this issue a second tine in promulgating
 the final rule implementing the 1978 amendments to the Clean Water
 Act.  In a response to one commenter's suggestion that section
 311(b)(6)(B) be applied to discharges of oil, EPA again concluded
 that:

         The legislative history clearly indicates that
         the Section 311(b)(6)(B)  penalty option only
         be used for discharges of hazardous substances.
         44 Fed. Reg. 50774,  (August 29,  1979.)

     D.  Analysis

     The fundamental issue raised  by Region X is whether,  in
 interpreting Section 311(b)(6)(B),  the "plain meaning" of the
 provision should control,  or alternatively whether further
 reference to legislative history,  contemperanous Agency interpre-
 tations ,  and Agency regulations should be considered.

     A basic tenent of statutory construction is that  statutes are
 to be interpreted  in accordance with their "plain meaning."
 The relevance of the "plain  meaning" rule is well recognized
 and is often relied upon by  the courts.   This rule was explained
 by the Supreme  Court in Caminetti v. United States, 242 U.S.
 470 (1917):              	    	

        It  is elementary that the meaning of a statute
        must, in the first instance,  be  sought in the
        language in which  the Act is framed,  and  if that
        is  plain,  and  if the law  is  within the constitutional
        authority  of the lawiuaking  body  which passed  it,
        the sole function  of the  courts  is to enforce  it
        according  to its terms.   242 U.S.  at.485.

    As  well  known  and  often  cited as  this  fundamental  principle
 is,  it "is equally  well  recognized that the rule  is  by  no  means
 inviolate.   In  United  States  v. American  Trucking  Association
Inc.,  310 U.S.  534 U940) , the Supreme Court  made  clear  that:

        When aid to  construction of  the meaning of  words,
        as used  in the  statute, is available,  there certainly
        can be no  'rule  of law1 which forbids  its use,

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                 -   .          - 8  -

         however  clear  the words may  appear on  "superficial
         examination.1   310  U.S. 543-44  (citation
         omitted)
 a

     The tension  between these two rules  of statutory  interpre-
 tation continues  to be reflected  in  the  court's treatment of
 this issue  up  to  the present  day.  Statutory construction
 cases reflect  a. struggle between  the recognition, on  the one
 hand, that  Congress cannot  craft words  to address every contingency
 and, on the other, an  understanding  that extrinsic  interpretive
 materials,  such  as legislative history,  are susceptible to
 manipulation for  partisan purposes and,  accordingly,  may be
 unreliable.  J5/

     In the  period following American Trucking, a number of
 different approaches to resolving this conflict have  developed.
 In  some cases, the courts appear  to  look back  to a  strict
 interpretation of the  Caminetti approach. £/   In other cases,
 the courts  have fashioned a more liberal interpretation of the
 plain meaning rule; allowing consideration of  legislative
 history where statutory language is ambiguous, fl   Yet another
5/   See e.g., United States v. Public Utilities Commission.
     345 U.S. 295  (1953) (Jackson, J., concurring;;.Gemsco v.
L. Metealfe Walling. 324 U.S. 244 (1953); National Small
Shiooents Trarric Conference, tnc. v. Civil Aeronautics Board,
618  F.2d iiy, 828 (D.C. Cir. 1980) ("[WJe note that interest
groups who fail to persuade a majority of the Congress to accept
particular statutory language often are able to have Inserted
in the legislative history of the statute statements favorable
to their position, in the hope that they can persuade a court
to construe the statutory language in light of these statements.
This development underscores the importance of following
unambiguous statutory language absent clear contrary evidence
of legislative history.")
6/  See, e.g. , National Railroad' Pas'sengef^Cofpl ', 'et'al. v.
~~    National Association of Railroad Passengers, 414 U S.
453 (1974); Gemsco v. L. Metcalre Walling. 324 O.S. 244 (1953).
7/  See e.g.. Uni
"~   34T U.S. 295,
              United States v. Public Utilities Commission.
    „-,., ~.~. -.,-, 315-16 (1953) ("Where the language and purpose
of the questioned statute is clear, courts, of course, follow
the legislative direction in interpretation.  Where the words
are ambiguous, the judiciary may properly use the legislative
history to reach a conclusion."); Demby v. SchweiRer, 671 F.2d
507 (D.C. Cir. 1981); Lawrence v.'  Staacs."640 F.2d 427 (D.C.
Cir  1981)- United States v. United States Steel Corp., 482
F.2d 439, AA^ (7eh Cir. 1973). cere denied. 414 U.S. 909 (1973)
("We think that the statute is plain on its face, but since
words are necessarily inexact and ambiguity is a relative
concept, we now turn to the legislative history, mindful that
the plainer the language, the more convincing contrary legislative
history must be".)

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                              . 9 -
 group of cases allows recourse to extrinsic material where
 adherence to the plain language of the statute (even where
 such language is unambiguous)  would frustrate.a larger congres-
 sional purpose; such purpose often being devined by reference
 to applicable legislative history. 8/  Prominent among this
 latter group is the 1976 Supreme Court case of Train v. Colorado
 Public Interest Research Group (PIRG), 426 U.S. 1 (1976).   In
 reversing the lower court's "plain-meaning" opinion, the Supreme
 Court in this case refused to  give effect to clear statutory
 language in the Clean Water Act which included "radioactive
 materials" within the definition of "pollutant," holding that
 clear and unambiguous legislative history showed that a literal
 reading was contrary to Congress'  intent.

     The only certain conclusion that can be drawn from an  exami-
 nation of case law on this question is that while the "plain-
 meaning" rule continues to be  an accepted principle of statutory
 interpretation,  it is not dispositive in every case.  This quali-
 fication is particularly true  in the presence of conflicting
 legislative history where alternative statutory constructions
 are possible that better reflect and more easily fit with
 stated congressional intent.

     As discussed  above,  an examination of the 1972 amendments
 to the Clean Water Act and associated legislative history
 clearly indicates that due to  the  very nature of certain hazard-
 ous substances, Congress considered and explicitly choose  to
 adopt a penalty strategy that  in certain repects was different
 than that provided for oil spills.   The fundamental question
 that must be addressed in considering the 197S amendments  is
 whether Congress  intended to abandon  the hazardous  substance
 deterrent penalty established  in 1972 or substantially modify
 it to cover a new class  of discharges.
8/  See, e.g.. Cass v. United States. 417 U.S. 72  (1974); Malat v.
     RiddeTI. 383 U.S. 569, 571 (1966) ("Departure from a literal
reading of statutory language may, on occasion, be indicated by
relevant internal evidence of the statute itself and necessary
in order to effect the legislative purpose" (citations omitted));
Wilderness Society v. Morton. 479 F.2d 842, 855 (D.C. Cir. 1973)
("but we have also faced up to the reality that the plain meaning
doctrine has always been subservient to a truly discernable legislati-
purpose however discerned" (citation omitted)); Portland Cement
Association v. RuckeUhaus. 486 F.2d 375, 379 (D.C. Cir. 1973)
("In ascertaining congressional intent, we begin with the language
of a statute, but this is subject to an overriding requirement
of looking to all sources including purpose and legislative
history, to ascertain discernable legislative purpose"),  (citations
omitted)*

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                             - 10 -

             •   •-'                                      •
     Senator Muskie explained the penalty provisions of the
1978 amendments and left no question that while Congress was
modifying the articulation of its hazardous substance spill
liability and penalty strategy in response,to the Hanufacturine
Chemists Association decision, it was not abandoning the 1972
strategy or expanding it to cover oil discharges.  Senator
Stafford's comments reinforce the conclusion that Congress was
committed to a special hazardous substance penalty provision
and explicitly decided to leave the oil discharge penalty
provisions unchanged.

    On the House side, explanation and support for H.R. 12140
tracked the debate in the Senate. Representative Breaux specifically
pointed out that while the bill provided for hazardous substance
penalties, the Coast Guard'administrative penalties (which covered
oil) were to remain unchanged.

    Taken alone, the legislative history provides a persuasive
basis for concluding that Congress did not intend to extend
the hazardous substance deterrent penalties to discharges of oil.
However, other considerations are also relevant to the question
and provide further support for this conclusion.  Chief among
these is the Agency's own involvement in the process that led
to the 1978 amendments.  While it cannot be presumed that Congres
acted only in response to EPA's request for legislative assista
it is clear from the fact that both the Senate and House formal
incorporated EPA's request into the record that the Agency's
position was carefully considered.

    In his letter of request to Senator Muskie and Representative
Johnson, EPA's Assistant Administrator for Water and Hazardous
Materials could not have been more explicit on the question of
penalties:

        The amendments we propose basically place hazardous
        substances on a par with oil in how they relate to
        the major components of Section 311 with one major
        exception.  The present penalty structure would be
        replaced by one-which sets a maximum fine of $50,000
        for all hazardous dischargers.  Cong. Rec. S19256
        and H13600 (daily ed., October 14, 1978).

The request and explanation contained in this letter assumes
particular relevance in view of the Supreme Court's holding
that an Agency's interpretation "gains much persuasiveness
from the fact that it was the [Agency] which suggested the
provision's enactment to Congress."  U.S. v. American Trucking
Association. Inc.. supra, 310 U.-S. at 549; Hassett v. Welch.
303 U.S. 303, 310 (1938).

    Moreover, EPA's role did noc end with its advisory function
during the legislative process.  Within the first month after

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                              - 11 -

 enactment of the 1978 amendments, EPA provided Congress with an
 Agency interpretation of Section 311(b)(6)(B).  In a letter
 dated October 24, 1978 to the Chairmen of the  Senate and House
 Committees with jurisdiction over the Clean Water Act,  EPA's
 Assistant Administrator for Water and Hazardous Materials, Mr.
 Jorling, stated:

         It is our understanding that section 311(b)(6)(B)
         was intended solely to apply to  hazardous substances,
        'not to oil,  which continues to be covered under
         section 311(b)(6)(A)  of the amended Act  .... In
         accordance with Congressional intent as described
         below,  section 311(b)(6)(B)  will only  be applied
         to hazardus  substance.  (See attached  letter)

 On the general question of Agency legislative  interpretations,
 it is well settled that courts show "great  deference to the
 interpretation given? the statute by the  officials or agency
 charged with its administration"  Udall  v.  Tallman, 380 U.S.
 1, 16.  Accord.  e.g..  Zuber v.. Allen.  396 U.S.  168, 192 (1969);
 U.S.  v. American Trucking Association, 310  U.S.  534 (1940);
 NRDC  v. Train.  510 F.2d 692.  706 (D.C. Cir.  1975).   This rule
 is particularly applicable when the  Agency  interpretation at
 issue "involves  a contemporaneous  construction of a statute by
 the men charged  with the responsibility  of  setting  its  machinery
 in motion,  of making the parts work  efficiently  and smoothly
 while they are  yet untried and new."  Power  Reactor Development
 Co. v. International Union of ElectricTans,  367  U.S.  396.  408.
 (1961). quoting  Norwegian Nitrogen Products  Co.  v.  U.S.  288,
 U.S.   294,- 315  (1933).Accord,  e.g.,  U.S. v.  Zucca~13T.  U.S.
 91, 96 (1956).   Congressional concurrence in an  Agency's statutory
 interpretation  is  a  further factor noted  by  the  Court in Power
 Rgactor Development  Co.  that  may be  relied upon  as  an indication
 of the interpretations  accuracy.  Where  Congress has been
 provided complete  and  direct  notice  of a  particular statutory
 construction  and has  failed to take  available  legislative
 opportunities to correct  that  construction,  then this inaction
 may be taken  as  "a de  facto acquiesence  in and ratification
 of" the Agency interpretation  in question.   Power Reactor
 Development Co, v. International Union of Electricians,  supra.
 367 U.S. at 409.

    The Chairmen and ranking minority  leaders of the  Senate
 Environment and Public Works Committee and the House  Public Works
 and Transportation Committee were personally notified by letter
 ten days after enactment  of the  1978 amendments  of  the  Agency's
 interpretation of  Section  311(b)(6)(B).   Further notice  was
provided, of course,  through  the Federal  Register publication
 of the  EPA - Coast Guard MOU and..also fay  the proposal and
 final  promulgation of hazardous substance regulations (40
 CFR Part 117).

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                             - 12 -
V.  CONCLUSION

     EPA's present position, which has been expressed in letters
to Congress, federal regulations, and the EPA - Coast Guard
MOU, is that Section 311(b)(6)(B) does not authorize it to
impose civil penalties for discharges of oil.  However, Region
X suggests that a literal reading of subparagraph (B) leaves
open the question of whether this interpretation is too narrow.
I believe that the better interpretation of the provision
is that does not authorize EPA to seek court imposed penalties
for discharges of oil.

    It should be noted that if the Agency decides to change its
position on the applicability of Section 311(b)(6)(B) it would
be necessary before acting on such reinterpretation to publish
a renegotiated MOU ,with the Coast Guard and provide public notice
of the change in the Agency's interpretation from that set forth
in the proposed and final ruletnaking preambles to 40 CFR Part 117,

Attachment

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                           V'. A £ HIN G VON. O C.  2C-'.GO

                          October 24, 1573
                                                            j'>ri-'H:i; or iVAioi
                                                           IIA.tAI»J3OIJS MAlfcTJ.'AI.S

 Honorable Jennings  Randolph
 Chairman, Coicin'ttee on  Environment                •
   and Public h'orfcs
 United States Senate
 Washington, 0. C.   20510

 Deer Mr. Chairman:

      I want to tha.'il: you for your assistance in enacting asKcnctaents
 to section 311 of the Clean  Water Act.   I  deeply appreciate the Congress's
 willingness to consider the  section 311  amendments during the wiiiiiiicj
 uiuiients of the 25th  Congress.   Without the aaiffnciK»cnts, L'lV. could not
 have implemented any element of the hazardous substances spill program
 for a number of years,  "fts a result of the efforts of the 95t!i Congress,
 v;e can build on the  rulemaking  effort conducted for the last ftw years
 end pet a basic hazardous substances spill program into operation within
 a few months.

      It has been brought to  my  attention that there isuiy '»e sc::;e confusion
 over the applicability of the emended section 31l(b)(£}(")•'  Jt is our
 understanding that section 311(b)(6}(C}  was intended solely to apply to
 hazardous substances, not to oil,  which  continues to be covered ur.c'^r
 section 31}{b)(6)(A) of the  amended Act.   In seeking an £i::enducr;t to
 section 311,  it was solely our  intent to resolve  the issues raised ii. the
 Court's injunction of the hazardous  substances program.  In accordance
 with  Congressional  intent as described below, section 3n(b)(6)U) i:ill
 only  be applied to hazardous substances.

      I  believe that Congress's  intent to apply section  311(b)(6)(C)
 solely  to hazardous substances  is  clear.   When HJ1.  121<;0 was  introduced
 on  the  floor  of the Senate, Senator Stafford's statement ninds  clear the
 intent  that the reduction of penalties to  $50,000 applied solely to
 Ji.iz.irdous substances.  Jn explaining section  311 (b)(G)(l!),  IK?  r.talt-d
 ti'ic amcndujcnt creates "two methods for penalizing dischir-.jcrt;  of li...t>jrduus
 substance.-.".   He further described iiow the ai«enf!j;:f:nt providticl  for ,1
 r.nfficicnt •fnccntfve for n hig/t stiiiulunl of care  for "Ji.i-Mr(i'oiir. LU!J-
stuiiccs discharges.*  rinally. in dcscrfl>fn)(C)('5),  Sena tor itaffori
•inJicatud  tJiut  one  oT the factors, the jravity o*  the vi.il:ition, wculJ

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include consideration of the "disposal  characteristic of the substance".
Section 311 of the Act and the recent amendments distinguish "substances"
from oil.                 .

     The statements u:ade on  the floor of the House of Rcp/rescntativcs
by Congressman John Dreaux when the Senate amended version of II.R. 12140
was adopted also support the interpretation that Congress intended to
apply section 311(b)(6)(C) to hazardous substances and not to oil.
Congressman Crcaux stated "..Ithe bill  amends section 311 .of the Act to
provide for a program of notification,  clean up, a'nd penalties for the
discharge of hazardous substances.."  In describing the two tier penalty
system, Congressman Ereaux noted that the Coast Guard's authority under
section 311(b)(6)(A) to administratively impose penaltias of up to 55,000
for discharges of oil  and hazardous materials remains unchanged.  Further,
in describing the "gravity of the violation" and.the discharger's efforts
to "mitigate the effects of  the discharge", Congressman Dreaux indicates
that these factors, which the Court is  to consider in-establishing the
penalty under section 31Kb)(6)(B), apply to hazardous substances.

     Again, than!: you  for your efforts  to enable implcumntation of a
hazardous substances spill program.
                                  Sincerely,


                                 «. •  iT /   •:''.'•  ' ' •
                                    / /..'I'*'      /
                                  Thomas  C.  Jorling
                                  Assistant  AtimiVistrator
                                  for Water  and  Haste  IJanaycuent

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VI. SPECIAL ENFORCEMENT TOPICS



     D. CITIZEN SUITS

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    m
0

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                                                                 VI.D.I.
"EPA Response to Citizen Suits", dated July 30, 1984.

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                               1894
SUBJECTt  EPA Response to Citizen Suits

FROHj     William D. RuctclBhaus
          Administrator

TOt       Regional Administrators (Regions I-X)
          Regional Counsels  (Regions I-X)
     I recently wet with several environmental groups to discuss
their concerns regarding EPA responses to 60-day citisen-ftuit
notices and the citizen suits tneaselves.  The environmental groups
have asked us to take several actions in support of citizen suits.

     EPA values the efforts of citizen groups to bring instances
of non-compliance to our attention and to support EPA efforts to
reduce that non-compliance.  Of course* in deciding on its own
course of action, EPA mist review the merits of every citizen suit
notico on a case-by-case basis*  Nonetheless, I greatly appreciate
these groups' efforts to complement the tfPA enforcement program
and help promote compliance*.,
                   'i
     During our meeting, the citixen groups thanked me for the
cooperation of EPA employees in responding to information requests
on non-compliance.  I would like to pass this "thank you* on to
all of you, and urge all Agency enforcement personnel to continue
to cooperate with citizen groups by promptly responding to these
requests and reviewing 60-day notices*

     As you may know, the Office of Policy, Planning and Evaluation
(OPPB) is currently conducting a study of citizen suits through a
contract with the environmental Law Institute (£LI).  OPFE expects
to complete this study by the end of September 1984*  Upon completion
of the study, I will decide whether to issue a detailed EPA policy
statement on citizen suits.
cct  Ross Sandier, Natural Resources Defense Council

LE-130A:A.DanzigJthtRra.3404:7/10/84:475-8785:DISKsDANZIG:1/23

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                               JUL 30 1984
 Ross  Sandier                                •              "
 Senior Attorney
 Natural  Resources  Defense  Council
 122 East 42nd  Street
 New York,  N.Y.   10168

 Dear  Mr.  Sandier;

      X enjoyed meeting with you and  representatives of environmental
 groups on June 12,  1984, to discuss  your  views on citizen  suits.
 I truly  believe  that citizen  groups  have  played an important  role
 in bringing  instances of non-compliance to  EPA's and the public's
 attention.   Your efforts,  especially under  the Clean Water Act,
 have  brought us  closer to  statutory  goals,  and for this I  an  grateful,

      In  response to your concerns, I have directed the Regional
 Offices  tot  (1) continue  to  cooperate with requests for information
 on non-compliance,  and (2) to promptly review 60-day citizen-suit
 notices.   (See attached memorandum),  EPA will continue to decide
 on a  case-by-case  basis how to respond to citizen suit notices
 after consideration of the merits of the  contemplated action  and
 consistency  with EPA enforcement  priorities.

      As you  nay  know, EPA  is  currently studying citizen suits
 through a contract  to the  Environmental Law Institute.  Upon
 completion of the study, expected by the  end of September  1984,
 I will decide whether to issue a  more detailed policy statement
 regarding how EPA should handle citizen suits*

     Thank you again for expressing your  concerns.

                                Sincerely yours,

                                   WILLIAM D. BUCKELSHAUS
Attachment
                                William D. Ruckelshaus
LE-130A:A.Danzigsth:Ra.3404:7/10/84t475-878S:DISK:DANZIG»1/26

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                                                                 VI.D.2.
"Clean Water Act Citizen Suit Issues Tracking System", dated October 4,
1985.
                                                                      OVT1

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m

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        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON, D.C. 20460
                        ocr  4 BBS
                                                    OI-MCF III I NK)K< I VI) M
                                                      ANIX'IIMI't I\M I
                                                       MOMlDKIMi
MEMORANDUM
SUBJECT:
PROM:
TO:
          Clean Water Act Citizen Suit
          issues Tracking System
          Glenn L. Unterberger
          Associate Enforcement Counsel
            for Water

          Rebecca Hanmer, Director
          Office .of Water Enforcement
            and Permits
          Colburn Cherney
          Associate General Counsel
            tor Water

          Ann Shields, Acting
          Section Chief, Policy, Legislation and
            Special Litigation, DOJ

          Regional Counsels, Regions I-X
Purpose

     The purpose of this memorandum is to establish procedures
by which EPA will monitor important case developments involving
national legal and policy issues, in order to decide on an
appropriate position for the government to take regarding those
issues, in citizen enforcement suits brought under §505 of the
Clean Water Act.

     Due to the growing number of 5505 enforcement actions,
and the importance of the legal, technical, and policy issues
raised in them, it has become necessary tor the Agency to
develoo a'better system to track national issues arising in
these citizen suits once they are filed.  OECM-Water Division
already maintains a log of citizen notices ot intent to sue.
We will expand the existing system to track subsequent tilings,

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case developments, and judicial decisions.  In that way, the
Federal government will be in a better position to decide if,
•when, and how to participate in cases which may result in the
establishment of legal or policy precedents affecting EPA's
enforcement actions.                       •             .

     The Regions remain responsible for deciding whether a
Federal judicial enforcement action is warranted to address the
violations at issue.  The new Tracking System does not affect
Regional monitoring, review and recordkeeping systems relating
to what enforcement response EPA decides to pursue against a
violator in the wake of a citizen notice.  Instead, the Tracking
System is intended to enable the government to make timely and
informed decisions as to whether, for example, it should
intervene or file an amicus brief in a citizen enforcement suit
to protect a Federal interest regarding a  legal or policy
question of national interest.

Procedures

     EPA regulations (40 CFR 135) provide  that CWA citizen
notices of intent to sue must be sent to both the Regional
Administrator (of the Region in which the  alleged violations
occurred) and the Administrator of EPA as  well as to the aftected
State.  My office will notify the Regional Counsel when we
receive a citizen notice.
     Promptly upon receipt of a §505 enforcement notice  (in
which the Administrator  is not a proposed defendant), OECM-Water
will send a short form letter to the prospective citizen plaintiff,
requesting that a copy of the filed citizen complaint be sent
to my office.  (As of September, 1985, there are CWA amendments
pending which would require citizen plaintiffs to send complaints
and consent decrees to the Agency.  If enacted, these amendments
would require a response to this first letter.)  Upon receipt of
a filed complaint, OECM-Water will then  request copies of all
dispositive pleadings and court judgments or settlements.  It
is anticipated that voluntary responses  to these requests will
provide OECM-Water with  the means to adequately track the
progress of these suits  and any substantial issues  they  raise
at trial or on appeal, in the majority of cases.

     OECM-Water will maintain a file for each citizen enforcement
suit.  As pleadings are  received, my office will review  them to
identify those issues raised which are of particular concern or
interest to the Federal  government.  We  will also send copies
of all citizen complaints and other significant documents to
Regional Counsels when requested or appropriate as  well  as to
the Policy, Legislation  and Special Litigation  (PLSL) office in
the Department of Justice.  Furthermore, we will share the
information received with OWEP, to give  the program office an
opportunity to review technical and policy  issues raised.

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      When a legal issue arises which may merit some level of
 involvement by the Federal government, such as the tiling of an
 aroicus curia'e- brief, my otfice will coordinate any formal
 response with the Associate General Counsel for Water and with
 PLSL at the Department of Justice.  In those situations, my
 office will also contact the Regional Counsel and the Director
 of OWEP's Enforcement Division.  This group will be responsible
 for collectively deciding, in a timely manner, (1) whether
 government action on a specific issue arising in a citizen suit
 is warranted, (2) what the government's action should be, and
 (3) what roles the participating offices will play in pursuing
 any appropriate action.

      As part of this expanded citizen suit tracking system, my
 office is now initiating the compilation or a compendium of
 documents which set out the government's position on general
 issues which have arisen in the context of CWA citizen suits.
 We will share this compendium with you when it is completed.

      The procedures described above make up an interim system
 for tracking national issues in CWA citizen enforcement suits,
 and will be undertaken at the beginning of FY86.   As other
 Divisions within OECM continue developing such systems as
 needed, or as proposed legislative amendments are adopted, the
 CWA procedures may be modified so as to promote cross-statutory
 consistency in citizen suit tracking.

      If you have any questions about this new citizen suit
 tracking system, or related CWA §505 issues,  please contact
 me (FTS 475-8180), Assistant Enforcement Counsel'Jack Winder
 (FTS 382-2879), or staff attorney Elizabeth Ojala (FTS 382-
 2849).
 cc:   Courtney N.  Price
      Richard Mays
      Directors, Regional Water Management Divisions
      David Buente,  DOJ
      OECM-Water Attorneys
      OECM Citizen Suit Work Group Members
Note: As of the date of issuance of this  policy  compendium,
this tracking system has not been implemented  by OECM.

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 /V "
m

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                                                                   VI.D.3,
"Notes on Section 505 CWA Citizen Suits," dated February 3, 1986.

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                                                                   VI.D.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.
                                                                            \C)

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\
      j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      f                 WASHINGTON. O.C. 20460
                         JUN\ .9 i
 MEMORANDUM                                      '      ::v" "•"« ^"'r>

 SUBJECT:  Clean Water Act. Section  505:  Effect of Prior Citizen"
          Suit Adjudications or Settlements on United States'
          Ability  to Sue  for Same  Violations

 FROM:     Glenn L. 'Jnterberger  -^-
          Associate Enforcement Counsel
             for Water

 TO:       Regional Counsels
          Regions  I - X
     The purpose of  this memo  is  to clarify,  in response to
several inquiries that this office has received, the United
States' position on  the question  of whether the federal
government is precluded from suing a violator in the face of a
previous Clean Water Act citizen  enforcement  suit adjudication
or settlement with the same defendant for the same violations.
As indicated in the attached documents, our position is that the
United States is in no way estopped from suing a violator (on
the same violations) for separata or additional relief after a
citizen suit has been initiated or concluded.  The maximum
potential civil penalty liability of the defendant in the U.S.
action would be the statutory maximum reduced by any civil
penalty assessed in the earlier citizen suit which was actually
paid into the U.S. Treasury for the same violations.  This
position is supported and explained in three attachments to
this memo.

     Attachment One  is the court's order dated March 16, 1987
in U.S. v. Atlas Powder Company,  Inc., Civ. No. 86-6984 (E.D.Pa),
The court holds that "the United  States is not bound by settle-
ment agreements or judgments in cases to which it is not a
party."  See also Attachment Two, the United States* memorandum
in support of a Motion to Dismiss Atlas's Counterclaims, which
asserts the general principle that the U.S. is not bound by the
results of prior litigation by private parties over a given set
of violations because the U.S. has interests distinct from
those of any private citizens.  The memorandum also quotes an
excerpt from the Legislative History of the Watar Quality Act
of 1937, which clarifies that the new WQA provision that

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                            - 2 -
provides the United States an opportunity to review CWA citizen
suit complaints and consent decrees will not chance the principle
that the U.S. is not oouni by judgments in those cases.

     Attachment Three is a letter dated Apri-1 l'» 1937 from tie-
Department of Justice to the judge in Student Public Interest,'
Research'Group of New Jersey v« Jersey Centra1"Power and Light
Co., Ci". No. 33-2840 (O.N.J.).  This letter discusses in
detail the non-preclusion issue, wit-, relevant case citations.
The letter also emphasizes that civil penalties must be paid to
the U.S. Treasury and that any monetary payments made in settle-
ment of citizen suits which are not paid to the U.S. Treasury
do not reduce a defendant's potential civil penalty liability
in any future government enforcement action.  The Department of
Justice  is routinely issuing letters such as this to parties to
proposed CWA citizen suit settlements which purport to bind the
United States or to call Ssr payment of civil penalties to any
r*cipi*nt other than the U.S. Treasury.

     If you have any questions on these or related citizen suit
issues, please contact OECM Water Division attorney "lizabeth Ojala
at FTS 382-2349.

Attachments :>j>^.4---r v-\
        v

cc-.  Susan Lepow
     David Buente
     Ray Ludwis?wski
     Ann Shields
     James Elder
     Associate Enforcement Counsels
     Water Management Division Directors, Region I-x
     Water Division Attorneys

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                                                  VI.D.5
"Procedures for Agency Responses to  Clean Water Act Citizen
Suit Activity," dated June 15, 1989.

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       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

    V   "             WASHINGTON, O.C. 20460
    •C
                        JUN 15 (988
                                                         OWICE Of
MEMORANDUM
SUgJECT
FROM
TO
          Procedures for Agency Responses to Clean water
          Act Citizen Enforcement Suit Activity
          Glenn L. Unterberger
          Associate Enforcement Counsel
            for Water

          Regional Counsels, Regions I-X

          James Elder, Director
          Office of Water Enforcement and Permits

          David Davis, Director
          Office of wetlands Protection

          Susan Lepow
          Associate General Counsel
            for Water

          Ann Shields, Section Chief
          Policy, Legislation and Special Litigation,
          Department of Justice
Purpose

     The purpose of this memo is to set out the general procedures
to be followed by the Environmental Protection Agency, in con-
junction with the Department of Justice, in responding to and
monitoring citizen enforcement suits brought under Section 505  .
of the Clean water Act, 33 USC 1365.

     This memo supersedes prior guidance, issued by this office
on October 4, 1985, concerning EPA tracking of citizen suits.
That guidance is now obsolete in light of recent amendments to
Section 50-5 requiring citizen suit parties to send copies to
EPA and DOJ of complaints and proposed settlements, and in
light of EPA's new ability to bring administrative penalty
actions and pre-empt potential citizen suits for civil penalties.

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                            - 2 -
The guidance defines coles for various EPA and OOJ offices in
addressing- matters relating to CWA citizen enforcement suits;
however, this guidance in no way affects the fact that the
Regions remain responsible for deciding whether a federal
enforcement action is warranted to address the violations at
issue.

Background

     Clean Water Act Section 505(a)(1) authorizes any person
with standing to sue any person who is alleged to be in violation
of certain Clean Water Act requirements, set out in CWA S505(f).
In such lawsuits, the district courts have jurisdiction to
enforce the Act and to apply appropriate civil penalties under
CWA S309(d).  Prior to filing enforcement suits under CWA
§505(b){l), however, citizens must give "60-day notice" of the
violations to the Administrator, the state, and the alleged
violator.  These violation notices must be given in the
manner prescribed by the Agency's regulations, found at 40 CFR
135, which require that copies of the notices (sent via certified
mail to the alleged violator) be mailed or delivered to the
Administrator, the Regional Administrator, the State, and the
registered agent of corporate violators.  Part 135 provides
that the date of service of the notice is -.rie date of postmark.

     Through section 505, Congress has faL ioned a distinct
role for private enforcement under the Clean Water Act.  The
purposes of the citizen suit provision are to spur and supplement
government enforcement.  The required 60-day violation notices  .
are designed to provide the Administrator (or the State) the
nnnnrj-nni tv ho undertake Governmental enforcement action where
are designed to provide cne Aanuniscracoc tor cne
opportunity to undertake governmental enforcement action
warranted, given Agency priorities and finite resource levels.
Where the government does not pursue such action, the citizen
enforcer with standing may act as a "private attorney general"
and bring the lawsuit independently, for civil penalties and
injunctive relief.

     Historically, in the majority of cases the  regions
have not initiated federal referrals as a result of citizen
notices, and thus the citizens are allowed to serve the role of
"supplemental" enforcers.  This is reasonable in terms of
best use of the Agency's finite resources, and the consistent
setting of federal enforcement priorities, which should not
necessarily be driven by citizen enforcement priorities.

     Experience suggests that private enforcement  is useful in
heloing to achieve Clean water Act goals and to  promote Clean
Water Act compliance.  However, it is Important  for the Agency
to monitor citizen lawsuits  to the extent possible to ensure
proper construction  of regulatory requirements and avoid proble-
.matic judicial precedents.   It is also  a good idea for  the

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                            -  3 -
federal government to support the citizens where feasible, such
as by filing amicus briefs  in appellate courts, in order to
advance our federal enforcement interests.  Examples of amicus
curiae briefs which have been filed on behalf of citizens so far
include those in Sierra Club v. Union Oil Co. (9th Cir.), sierra
Club v. Shell Oil Co.,  (5th Cir.), and Chesapeake Bay Foundation
v. Gwaltnev of Smithfield. Ltd. (4th Cir. and S. Ct.).

Recent CWA Amendments Affecting Citizen Suits

     The Water Quality Act  (WQA) of 1987 amended the Clean
Water Act, effective February 4, 1987, in two ways respecting
citizen suit authorities and responsibilities.  Generally, the
amended CWA requires that the Administrator and the Attorney
General receive copies of complaints and proposed consent
decrees in citizen enforcement suits.  In addition, citizen
suits for civil penalties may now be precluded, in some cases,
by administrative penalty actions.

     WQA $504 provides as follows:

          Section 505(c) is amended by adding at the
   .  end thereof the following new paragraph:
               "(3) PROTECTION OF INTERESTS OF UNITED
          STATES. - Whenever any action is orought
          under this section in a court of the United
          States, the plaintiff shall sec :• a copy of
          the complaint on the Attorney Gc :eral and
          the Administrator.  No consent judgment
          shall be entered in an action in which the
          United States is not a party prior to 45 days
          following the receipt of a copy of the pro-
          posed consent judgment by the Attorney General
          and the Administrator."

OECM-water Division and the Office of Water are presently
working on proposed regulations to govern service of the com-
plaints and consent decrees, which will be published in the
Federal Register shortly.

     WQA Section 314 amends CWA S309 (governing federal
enforcement actions) to add new subsection (g), authorizing
federal administrative penalty actions.  New CWA S309(g)(6)(A)
and (B) provide that citizens may not bring civil penalty
actions under Section 505 for the same violations for which (1)
the Secretary (Army Corps of Engineers) or the Administrator
has commenced and is diligently prosecuting an administrative
action under Section 309(g); (2)"the State has commenced and is
diligently prosecuting an -action under a comparable state law;
or (3) the Secretary, Administrator or State has issued a final
order and the violator has paid a penalty under $309(g) or

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                            - 4 -
comparable state law; unless (a) the citizen's complaint was
filed prior to the commencement of the administrative action,
or (b) the citizen's 60-day notice was given (in accordance
with 40 CPR 135) prior to commencement of the administrative
action, and the complaint was filed before the 120th day after
the-date on which the notice was given.

     Thus, under these new amendments, it will be necessary for
the Agency to keep track of when citizen notices are served
(i.e., postmarked), when complaints are filed, and when proposed
consent decrees are received.  Moreover, EPA and DOJ need to
clarify procedures for deciding how, if at all, to review and
respond to citizen enforcement activity.  The following sets out
the Agency's procedures, in conjunction with DOJ, to implement
these responsibilities.

Procedures

(1>  Violation Notices

     When EPA Headquarters receives a copy of a citi.zen
violation notice, the notice is routed to the Associate General
Counsel for Water.  That office logs in t'r.-? notice, files the
original, and forwards copies of the notices to the Associate
Enforcement Counsel for Water (OECM-water Division), and the
Director of the Office of water Enforceme-  and Permits, or the
Director of the Office of Wetlands Protect .on, as appropriate.
Under 40 CFR 135, each Regional Administrator must also receive
a copy of the notice directly from the citizen; some regions
have internal tracking systems, usually handled by the Water
Management Divisions.  In addition, the Office of Wetlands
Protection will forward Clean water Act S404 notices to their
courterparts at the Army Corps of Engineers.

     Since late 1983, OECM-Water has kept a region-by-region,
chronological log of these citizen notices, recording the name of
one notifier and the potential defendant, the location of the
facility, and the date on the notice letter.  (Recently, OGC
has begun recording the "date of postmark," which is the official
date of service under  the regulations.)

     In the regions, the general practice has been  for Water
Division personnel or Wetlands program personnel to investigate
the compliance  record  of the noticed facility, and  to contact
the state (if the state runs an approved NPOES program) to
inquire what, if any,  enforcement  action the  state  intends to
take.  The program office then makes a  determination, with the
Office of Regional Counsel,  as  to  whether  to  initiate a federal
enforcement action to  address  the  alleged  violations.  This
memorandum is not  intended  to  change  the procedures the regions
use  to evaluate and  respond  to  the notices.

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 (2)  Complaints

     As  in  the case  of  violation  notices, at Headquarters the
 Complaints  are routed through  the Office of General Counsel, to
 OECM-Water  Division  and the  appropriate program office.  The
 Office of Wetlands Protection  will  forward Clean water Act S404
 complaints  to their  counterparts  at  the Army Corps of Engineers.
 OECM-Water  and the Office of water  are currently working together
 to amend 40 CFR  135  to  include requirements relating to service
 of complaints on EPA and DOJ.   We expect these regulatory
 provisions  to.require citizen  plaintiffs to send copies of
 complaints  to the Regional Administrator in addition to the
 Administrator and the Attorney General.  In the interim, OGC is
 sending copies to the Regional Counsels.  OECM-Water Division
 keeps a  log of the citizen complaints.  Attached for your
 information is a copy of the log  which reflects citizen complaint
 activity through  the end of  fiscal  year 1987.

     The regions will retain the  authority to recommend whether
 to initiate a federal enforcement action against the citizen
 suit defendant (e.g., by intervention in the citizen suit, by
 filing a separate suit, or by  commencing an administrative
 action) in order  to address  the defendant's violations.  The
 regions will also normally have the  lead on monitoring active
 citizen suits from notice and  filing to co-.elusion, within their
 discretion and as resources  permit.   Howe ?r, Headquarters
 will get involved in the citizen  enforceme .c action where
 national legal or policy issues arise which merit federal
 attention (other  than intervention as a party to address the
 underlying violations), and  each  Region is requested to notify
OECM-Water Division whenever such an issue comes to the Region's
 attention.

     For example, Headquarters generally will take the Agency
 lead, working with the  Policy, Legislation and Special Litigation
 (PLSL) Section of the Department  of Justice, where issues of
 national law or  policy  arise which call for participation as
 amicus curiae in  the district  or  appellate courts.  In such
 situations, OECM-Water  will  be  responsible for coordinating
with PLSL, OGCWater, the appropriate Office of Regional counsel,
and the Office of Water to decide collectively (1) whether govern-
ment action on a  specific issue arising in a citizen suit is
warranted, (2) what the government's action should be, and (3)
what roles the participating offices will play in pursuing'any
appropriate action.   This type of participation might occur
most often in the context of appeals from judgments in citizen
suits.   However,   the Agency will  employ the same procedures in
deciding whether  and how to  pursue  Federal participation on the
District Court level.   Examples of  issues which the United
States has addressed to date in this context include the scope
of the upset defense, whether  the U.S. can be bound by settlements
 of suits between  private parties, and^whether citizens may
 pursue penalties  for wholly past  violations.

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                            - 6 -
( 3 )
             D
     The proposed consent decrees, like the. violation notices
and the Complaints, are routed through the Office of General
Counsel to OECM-water Division and the appropriate program
office.  The Office of Wetlands Protection will forward Clean
Water Act 5404 proposed consent.decrees to their counterparts
at the Army Corps of Engineers.  Until 40 CFR 135 is amended to
require that copies be sent to the Regions also, OGC will send
copies to the Regional Counsels.   OECM-water Division keeps a
log of these proposed consent decrees.  Attached for your
information is a copy of the log which reflects consent decree
activity through the end of fiscal year 1987.

     Once a copy of a proposed consent decree is received, the
United States has 45 days within which to review the proposed
consent decree and submit comments, if any.  OECM-water .will
solicit comments from the appropriate Office of Regional Counsel,
to formulate the Agency's position on any issues which may
arise in the citizen consent decree,  unless different arrange-
ments are made (e.g., if Federal intervention is contemplated
to obtain further relief), OSCM-Water will take the lead for the
Agency in coordinating with DOJ to formulate proper action by
the United States in response to a proposed consent decree,
such as a comment letter to the court, whenever necessary or
advisable.

     A region will have the opportunity,  - its discretion and
as resources allow, to offer timely case-specific comments on
the adequacy of relief in a proposed citizen suit settlement.
OECM-water will consider comments, if any, from the Region
received within 35 days after the date the settlement is logged
in by the Administrator's office.  In any event, the united
States is not obliged to offer any comments to the court.  Our
position has consistently been that the federal government is
not bound by the terms of citizen settlements or judgments, as
the U.S. has interests distinct from any private litigants, and
cannot be deprived of the opportunity to bring a subsequent
action for more complete relief, should circumstances warrant.

     PLSL/DOJ will provide copies to OECM-water and the
appropriate Regional Counsel of any correspondence submitted to
the court or parties in CWA citizen suits and will work with
designated EPA representatives in conducting any follow-up
activity which results.

     If you have questions regarding  this matter, please contact
David Drelich of my staff at FTS  382-2949.

Attachments

cc:  Regional Water Management Division  Directors.
     OECM-water  Attorneys
     Doug Cohen, DOJ

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VI. SPECIALIZED ENFORCEMENT TOPICS
    E. SECTION 404

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                      VI. SPECIALIZED ENFORCEMENT TOPICS
                          G. FEDERAL FACILITIES
I

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                                                          VI.G.I
"FEDERAL FACILITIES COMPLIANCE", dated January 4, 1984.  See
GM-25.*

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                                                  VI.6.2
"Federal  Facilities  Compliance  Strategy," dated  November,
1988.  See GM-25 (revised).

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I

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                                                                    VI.H.I.
"Implementing State/Federal Partnership in Enforcement: State/Federal
Enforcement Agreements", dated June 26, 1984.  Superseded by H.3, below.

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                                                                   VI.H.2.
Policy on Performance-Based Assistance, dated May 31, 1985.

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  m
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
        .  '   •  WASHINGTON. D.C. 20460
                                              . THE ADMINISTRATOR
MEMORANDUM

SUBJECTS  Policy on Performance-Based Assistance

FROMt     Lee M. Thomas
TO:
Assistant Administrators
General Counsel
Inspector General
Associate Administrator
Regional Administrators
Staff Office Directors
Division Directors
     I am.pleased to  issue the attached policy on EPA's perfor-
mance-based assistance to States*  This policy represents an
important step  in the continuing effort to achieve environmental
results through a strong EPA/State partnership.

     Our assistance to States covers a wide range of continuing
environmental programs.  In the past, the process for developing
and managing assistance agreements has varied significantly among
programs and Regions.  This policy establishes an Agency-vide
approach toward negotiating assistance agreements, conducting
oversight of those agreements, and responding to key oversight
findings.  While the aim of the policy is a consistent approach
across Agency programs, it retains considerable flexibility for
Regions to tailor assistance agreements to the unique environ-
mental conditions of particular States*

r    This policy is effective immediately.  The accompanying
Question and Answer Package explains how FY'86 assistance agree-
ments will be expected to comply with it and details the rationale
behind major policy components.

     The Deputy Administrator will monitor implementation of the
Policy on Performance-Based Assistance and issue special instruc-
tions as necessary.  I expect Assistant Administrators to advise
the Deputy Administrator of actions planned or taken to make their
program policies, guidance and procedures fully consistent with
this policy within thirty days.

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     Regional Administrators are responsible for ensuring that
their staffs and States receive, understand and begin to apply
this policy package to their assistance activities.  To assist
in its prompt and proper implementation! members of the task
force and staff instrumental in the development of this policy
have agreed to make Regional visits to explain and discus* it.

     Z would like to commend the task force that developed this
policy* whose members included managers and staff  from EPA's
Headquarters and Regions, and State Environmental  Directors,
and representatives from the Washington-based Executive Branch
Organizations.  I believe they have done an excellent job and
hope their effort can serve as a model  for  future  EPA/State
decision-making*

     I look  forward to  strong Agency commitment  to this  policy.
You can be assured of my full support  as EPA  and the  States move
forward with its  implementation.

Attachments

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             POLICY ON PERFORMANCE-BASED ASSISTANCE
     I am pleased to issue this EPA Policy on Performance-Based
Assistance.  This document was developed by a task force composed
of representatives from EPA Headquarters and Regions, State envi-
ronmental agencies and Executive Branch Organizations to establish
a consistent, Agency-wide approach toward negotiating and managing
assistance agreements with States.

   -  The three major components of the policy describe how assis-
tance agreements should be negotiated* how a State's performance
against negotiated commitments should be assessed, and what actions
should be taken to reward accomplishments and correct problems.
The overall approach is one of EPA/State cooperation in setting
and attaining environmental goals through effective State programs.

     I anticipate strong Agency commitment to the principles of
this policy and look forward to the strengthening of the EPA/State
partnership I believe will result from this approach.
                                    Lee M. Thomas
                                    Administrator
Date

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            EPA  POLICY ON PERFORMANCE-BASED ASSISTANCE
PURPOSE
     This policy establishes an Agency-wide approach which links
U.S. EPA's assistance funds for continuing State environmental
programs to recipient performance.  The approach employs assistance
as a management tool to promote effective State environmental pro-
grams.  The policy's goal is the consistent and predictable appli-
cation of the performance-based approach across Agency programs
and among Regions*
      t
     Mechanisms for tying EPA assistance to a recipient's accom-
plishment of specific activities agreed to in advance are contained
in EPA's regulations governing State and Local Assistance (40 CFR
Part 35, Subpart A).  The degree and manner in which EPA programs
and Regions have applied these regulations has varied greatly.
Through this policy, the Agency articulates how it will consistently
manage its intergovernmental assistance.
SCOPE


     EPA's Regions will be expected to implement the portions of
this policy governing the management of assistance agreements
{•Oversight" and "Consequences of Oversight* sections) upon the
policy's issuance.  To the greatest extent possible, this policy
should also guide the negotiation of grants and cooperative
agreements for fiscal year 1986.

     This policy supersedes all previous policies on performance-
based assistance to the extent they conflict with the approach
outlined below.  It elaborates on regulations governing State and
and Local Assistance (40 CFR Part 35, Subpart A) promulgated
October 12, 1982, and the General Regulation for Assistance Programs
(40 CFR Part 30) promulgated September 30, 1983.  This policy does
not replace funding or grant/cooperative agreement requirements
established by Federal statutes or EPA regulations.  States applying
for Federal financial assistance are required to have adequate
financial management systems capable of ensuring proper fiscal
control.

     The policy complements and is in complete accordance with
EPA's Policy on Oversight of Delegated Programs (April 4, 1984)
and the Policy Framework for State/EPA Enforcement "Agreements"
(June 26, 1984).

     While this policy will refer to all assistance recipients as
"States* (since States receive most of EPA's assistance for con-
tinuing environmental programs), it applies equally to interstate
and local agencies which receive similar support.

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                              .2-
PRINCIPLES AND APPROACH
PRINCIPLES                                              _

     This policy on performance-based assistance is designed to.
strengthen the EPA/State partnership by ensuring that EPA assis-
tance facilitates the implementation of national environmental goals
and promotes and sustains effective State environmental programs.
The policy provides a framework within which EPA and States can
clarify performance expectations and solve problems through a system
of negotiation* according to a predictable but flexible set of
national guidelines.  This framework is built around several funda-
mental principles which will also guide the policy's implementation:

     o EPA will use performance-based assistance as a management
       tool to promote and recognize the effective performance
       of State environmental programs, and to ensure mutual
       accountability;

     o EPA Regions and programs will retain flexibility to tailor
       the performance-based approach to their needs and thepolicy'a
       guiding principles;

     o States and EPA should share a common set of expectations
       regarding performance commitments and likely responses
       to identified problems*  There should be no surprises as
       EPA-and States relate to each other under this policy;

     o In negotiating State performance objectivesf EPA and the
       States will seek realistic commitments and presume good
       faith in their accomplishment;

     o EPA and the States should maintain continuous dialogue
       for the rapid identification, solution and escalation
       of problems to top level managers;

     o EPA is fully committed to the success of State environ-
       mental programs and will seek opportunities to ackriowl-
       edge their accomplishments.
APPROACH

     The policy consists of three basic parts.  The first section
describes components of assistance agreements and how  they are to
be negotiated.  The second section lays out EPA's expectations for
the review and evaluation of assistance agreements and escalation
of significant findings.  The final section describes  how EPA should
respond to the findings of oversight:  rewarding strong performance;
applying corrective actions to solve problems; escalating signi
icant conflicts to top management; and, in cases of persistent
formance problems, imposing sanctions.

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                                 -3-
                          ASSISTANCE AGREEMENT
        Clear expectations for program performance are crucial to an
   effective EPA/State partnership.  Annual assistance agreements pro-
   vide a key vehicle for expressing these performance expectations.
   Negotiated work programs, contained in an assistance agreement,  form
   a fundamental basis for evaluation of State performance.

        An assistance agreement should include three components:   1)  a
   work program; 2) identification of support (other than federal
   assistance funds)  a State needs from EPA to accomplish work program
   commitments;  and,  3)  a monitoring and evaluation plan.


   APPROACH

        EPA will require that the top national priorities as  identified
   in Agency guidance be explicitly addressed in  all State work pro-
   grams.  As EPA and States negotiate outputs* national priorities
   should be tailored to the real environmental conditions of each  State
   and Region.

        Assistance agreements may include outputs based on a  State's
   priorities if those activities promise to deliver a greater environ-
   mental benefit than a national priority.   State priorities should
   represent only those  activities allowable under Federal statutes.
•'
        The appropriate  mix of national and State priorities  will vary
   from work program  to  work program, according to the unique features
   of each environmental program in each State.  Regional offices must
   exercise their judgment and negotiate with States over what combina-
   tion of national and  State priorities can deliver the greatest
   environmental benefit with resources available after EPA's top
   national priorities have been addressed.

        To better facilitate the negotiation of assistance agreements,
   the Agency's  Operating Guidance should be strengthened through early
   State involvement  in  defining the order and scope of Agency .
   priorities, a realistic consideration of funding  limitations
   throughout its development, and specific identification of top
   priorities by Program Offices.

        The development  and oversight of an assistance agreement  should
   be  supervised by one  senior Regional manager*   EPA Regional Admini-
   strators are  ultimately accountable for all assistance agreements
  made with States and  should be familiar with the  significant
   outputs and conditions of each agreement.   They will be respon-
   sible for all major assistance-related decisions.

        Assistance agreements may be amended by mutual agreement  of
   the Regional  Administrator and his/her State counterpart.   A major
   change in national or State priorities,  environmental emergencies,
   and the discovery  of  greatly overestimated commitments are examples
   of  the types  of circumstances which may necessitate renegotiation.

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                                    -4-
L
WORK PROGRAM          .

     The work program should specify the outputs a State will pro*
duce under its federal assistance award (including the State match
and level of effort) and the resources and time frames fox. completing
the outputs.

     o Outputs should be measurable commitments', reflective
       to the extent possible of real environmental results.
       They should be ambitious but realistic commitments ~
       achievable objectives rather than lofty goals.

     o Work programs should focus on the objectives a State
       will meet, not how the State will accomplish an output.

     o Past performance should affect work programs.  The good
       or poor performance of a State (or EPA) identified through
       oversight should influence the outputs and conditions
       contained in the next annual assistance agreement.

     o Work programs should specifically identify completion
       timeframes for outputs.  EPA may also specify interim
       milestones and reporting requirements based on the
       priority needs of national programs and in keeping with
       good management practice.  Reporting required under an
       assistance agreement should be consistent with.EPA*s
       information systems.

     o States should draft their work programs but may request
       assistance from EPA Regions in developing them.

     o States should be encouraged to volunteer a comprehensive
       work program that indicates activities, if any, outside
       those paid for with the federal and State funds included
       in the federal assistance agreement budget.  Awareness
       of State responsibilites not related to federal assistance
       greatly enhances EPA's understanding of the scope of
       State environmental programs.  Should a State choose to
       submit plans for its entire program, it need not  indicate
       resource levels, but only program activities.  EPA will
       not examine these activities in the course of assistance
       oversight except when necessary to ascertain the  cause
       of a performance problem or to identify the corrective
       action which can best address a problem.
       SUPPLEMENTAL EPA SUPPORT TO STATES

            An assistance agreement should describe the types of support
       EPA will endeavor to provide in addition to an assistance award to
       enable a State to meet its work program outputs.  Regions should
       consult with Headquarters about support which will require Head-
       quarters action.

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VJ
                                     -5-


             o The assistance agreement should describe the specific
              research,  technical advice, guidance, regulations,
              contractor assistance or other support EPA will Curnish
              States to  enable them to fulfill specific work program
              outputs, making clear that accomplishment of the outputs
              is contingent upon the receipt of the EPA support.  If
              EPA does not furnish the support described in the^ssistance
              agreement, the State will be relieved of output commitments
              contingent upon that support*


       EVALUATION PLAN

            The final component of an assistance agreement is a plan
       for EPA's evaluation of state performance.  The evaluation plan
       should be mutually acceptable to EPA and a State*

            o The plan should outline the schedule and scope of review
              EPA will conduct and should identify areas the evaluation
              will focus on.
                           •j
            o An evaluation plan must specify at least one on-site
              review per year, performance measures, and reporting
              requirements.
	ASSISTANCE OVERSIGHT	


     EPA should oversee assistance agreements both informally and
formally.  Regions and States should maintain continuous dialogue
so that States may alert EPA to problems they are experiencing and
EPA can monitor State progress toward accomplishing outputs.  EPA
should also periodically conduct a formal evaluation of State per-
formance.  Oversight should identify the successes and problems
States have encountered in meeting their commitments.  Oversight
also entails the joint analysis of identified problems to determine
their nature, cause, and appropriate solution, and the escalation
of significant findings (both positive and negative) to top managers
in the Region and the State.


APPROACH

     The formal assessment of State performance under assistance
agreements should occur as part of EPA's comprehensive review
and evaluation of State programs.  This process is governed by
EPA's Policy on Oversight of Delegated Programs which states
that evaluations should focus on overall program performance
(within a given program), rather than individual actions; they
should be based on objective measures and standards agreed to
in advance; they should be conducted on-site at least once a
year by experienced, skilled EPA staff; they should contain no

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                              -6-
surprises for States regarding content or expectations; and
results should be documented in a written report.

     EPA should adhere to these principles of oversight and to
the scope and schedule of evaluation agreed to in the assistance
agreement•                                              n
FEATURES

o States are responsible for notifying EPA in a timely manner of
  problems they experience in trying to accomplish their outputs.
  Likewise, EPA is responsible for promptly notifying States of
  its inability to supply promised support*

o Formal and informal evaluations by EPA should be constructive,
  conducted in the spirit of promoting good performance through
  problem-solving, not fault-finding.

o EPA's review and evaluation should emphasize overall performance
  within each program, concentrating on the composite picture
  revealed by total outputs and the quality of accomplishments.

o EPA should focus on a State's performance against work program
  outputs and conditions unless other aspects of a State*s program
  (procedures, processes, other activities) must be examined to
  analyze a problem or find its appropriate solution.

o Formal review of State performance under the assistance agreeme
  will entail, at a minimum, one on-site annual evaluation of eac
  assistance agreement.

o Review and evaluation of assistance agreements should be con-
  ducted by skilled, experienced EPA evaluators.

o Oversight findings, successes as well as problems, should be
  documented to establish an accurate record of State performance
  over time.

o Assistance oversight should use existing reporting and evaluation
  mechanisms to the extent possible.
                   CONSEQUENCES OF OVERSIGHT
     Once the assistance oversight process has identified and
documented areas in which States have had success or difficulty
in meeting their commitments under the assistance agreement, EPA
should respond to those oversight findings.  Potential responses
range from rewards and incentives for good performance, application
of corrective actions to solve uncovered problems, and the imposi-
tion of sanctions to address persistent, serious performance
leres.

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                              —7 —
APPROACH TO OVERSIGHT RESPONSE

     The Agency's goal in providing performance-based assistance
is to promote national program objectives by supporting effective
State environmental programs.  Actions in response to oversight
findings will be oriented toward finding the most effective
ways to maintain or improve a State program's performance-.
Wherever possible, EPA should acknowledge .excellent performance
and help States solve problems which impede performance through
corrective actions.

     If problems regarding State achievement of work program
commitments persist, EPA should pursue corrective steps as
necessary based on experience with a given State.  In general,
sanctions should be imposed only when corrective actions have
failed to solve persistent, significant performance problems.
Before taking any sanction against a State, EPA should raise
the performance issue to the highest levels of the Region and
State necessary to negotiate an effective solution to the
underlying problem.  Sanctions should not be necessary if both
parties are explicit, straightforward and realistic in their
expectations of one another and approach the assistance agreement
process in the spirit of cooperation.
INCENTIVES
     p When a State meets its negotiated commitments or other-
       wise demonstrates success, the EPA Regional Office
       should take steps to acknowledge excellent State
       performance at the conclusion of the oversight review
       or at the end of the assistance agreement period.

     o EPA is committed to publicizing State program success.
       Assured recognition of a State's environmental achievements
       is one of the most effective incentives at EPA's disposal.
       Publicizing accomplishments also benefits States with per-
       formance problems by providing them with models for success.

     o In general, when a State demonstrates steady progress or
       a sustained level of high performance against negotiated
       commitments, EPA will institute the most appropriate rewards
       for achievement and incentives to promote continued success.
       Possible actions include but are not limited to:

           -  Reducing the number, level, scope and/or
              frequency of reviews, reporting, or in-
              spections to the minimum necessary for
              effective national program management;

           -  Increasing State flexibility in using funds
              for special projects or State priorities;

           -  Offering financial incentives (within existing
              resources), such as supplemental funding;

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                              -o-
              Publicizing program successes through joint
              media presentations, awards, special letters
              of commendation to the Governor, or technology
              transfer to other States, EPA Regions and
              Headquarters.
CORRECTIVE ACTIONS                                    :

     o When oversight review uncovers a performance problem and
       determines its cause, EPA and the State must act on those
       findings by taking appropriate corrective steps.

     o Regions must initiate discussions with those States where
       problems have emerged, and work cooperatively with them to
       establish effective remedial strategies.  This negotiated
       strategy should specify the time frame during which EPA will
       expect the problem to be resolved, and any interim milestones
       that will be necessary to monitor State progress.

     o Regions and States should follow a corrective action strat-
       egy based on the unique history and needs of a given State.
       This policy does not prescribe any particular sequence of
       corrective actions which must be undertaken, nor does it
       link specific corrective actions to particular types of
       performance problems*
                                                                   *
     o Possible corrective actions include but are not limited to:
       providing EPA technical or managerial assistance, trainim
       or additional resources; increasing the number and/or fr
       quency of reporting and oversight requirements; and shift
       State resources or otherwise renegotiating the assistance
       agreement.

     o If a Region is not able to provide a particular essential
       type of specialized assistance to a State, the Region should
       bring this corrective action requirement to the attention
       of Headquarters program managers for action as appropriate.

     o The intent of this policy is to see that EPA assumes a
       constructive approach in responding to State performance
       problems.  When corrective actions have failed, or EPA and
       a State cannot agree on a corrective action, the Region
       may consider imposing a sanction.  If a sanction is contem-
       plated, the performance issue should be escalated to the
       highest appropriate level of EPA and the State.  The follow-
       ing sequence should be observed whenever possible to ensure
       that significant problems receive prompt attention and are
       solved expeditiously:

         a.  The Regional Division Director responsible for
             managing the assistance agreement will raise the
             issue to the attention of the Deputy Regional
             Admininstrator or Regional Administrator  and
             his/her State counterpart of this notification.

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                              -9-
             The Regional Administrator will personally contact
             the State Environmental Director or other appropriate
             State manager to attempt to reach agreement on a
             corrective action, and to discuss the contemplated
             sanction.

             National Program Managers should, be advised"of any
             State program problems warranting a sanction, and
             should be notified of any final decision to take
             such action.

             If negotiations between the Regional Administrator
             and State counterpart fail to solve the problem,
             the Regional Administrator should judge under what
             circumstances notification of the Governor should
             occur.
SANCTIONS
     o Regional Administrators must recognize that national re-
       sponsibility for any State environmental program continues
       after the imposition of a sanction.  They should make ar-
       rangements for completion of crucial outstanding outputs
       and should take steps to promote and sustain activities
       the State is performing effectively.

     o As with corrective actions, any decision to impose a
       sanction must be based on EPA's particular experience
       with any given State.  The Regional Administrator is
       responsible for determining when a problem may be signif-
       icant enough to warrant such action, and for determining
       the appropriate type of sanction to apply.
                                 *
     o Current regulations detail those sanctions traditionally
       available to EPA.  They include:  stop-work actions,
       withholding payment, suspension or termination of agree-
       ment for cause, agreement.annulment, and other appropriate
       judicial or administrative actions.

     o Adjusting the schedule for award or payment of assistance
       funds to quarterly, semi-annual, or other similar restrictive
       disbursement schedules is considered a sanction under the
       terms of this policy.  (The customary mechanisms for the
       release of funds, such as standard letter of credit
       procedures, are not affected by this policy.)

     o 40 CFR Part 30 Subpart L details formal procedures for
       resolving EPA/State disputes concerning assistance
       agreements.  These procedures provide the opportunity
       for a State to document the grounds for any objections
       to the imposition of a sanction and for EPA to review
       its decision and address the State's objections on the
       basis of a written record.

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            Policy on Performance-Based Assistance
                  Question and Answer Package
PURPOSE

1.  What is the purpose of this policy?

         This policy lays out a framework for managingTTPA's
    assistance to States for continuing environmental:programs.
    It ties performance against negotiated work .program outputs to
    federal financial assistance funds.  It provides a consistent
    approach for managing assistance programs through negotiating
    work outputs, overseeing States' performance against agreed
    upon commitments, solving problems through corrective action
    strategies, and imposing sanctions when corrective actions
    have failed or EPA and a State cannot agree on a corrective
    action strategy.

         Although the policy aims for a consistent approach toward
    managing assistance agreements, it provides Regional managers
    with flexibility to use their best judgment in applying the
    provisions of this policy to specific conditions that exist
    within their Regions and among programs*
TIMING

2.  How will this policy affect FY'86 assistance agreement's?

         Any FY'86 assistance agreement negotiated after the
    issuance of this policy will be expected to conform to
    all of its provisions.

         Assistance agreements for FY'86 agreed upon prior to
    the issuance of the Policy on Performance-Based Assistance
    will not have-to be renegotiated.  However, EPA's Regions
    will be expected to manage those assistance agreements
    according to the approach outlined in the "Oversight" and
    "Consequences of Oversight" sections of the policy.

         FY'86 assistance agreements may be amended if a Region
    and State both agree to do so, under the terms of governing
    regulations.

         All assistance agreements for FY'87 will be negotiated
    and managed according to this policy.
PRIORITIES

3.  Why should EPA assistance support some State priorities
    in addition to national priorities?

         •state priorities* refer to activities which are allow
    able for funding under federal statutes and which, althou
    not always important enough nationwide to warrant a place

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                          .   • -2-


    on or at the top of the  national priority list* are of
    great concern to a particular State due to that State*s
    unique environmental conditions.  Recognizing that each of
    EPA1s continuing environmental programs requires a combination
    of Federal and State resources, EPA may direct some—of its
    assistance to support what States view as their most
    significant initiatives, if those activities promise to
    deliver a greater environmental benefit than a national
    priority. (National priorities include Regional priorities).
    In many instances, a State's priority activities will cor-
    respond closely to the list of national priorities in a
    given program, but the State may wish to distribute resources
    among those activities with a slightly different emphasis.
    The Regions have flexibility under this policy to negotiate
    support for those activities, consistent with Program
    Guidance.


4.  How is the proper balance between national and State
    priorities to be achieved?

         The appropriate mix of national and State priorities
    will vary from work program to work program, according to
    the unique features of each environmental program in each
    State.  After ensuring that top national priorities as
    identified in the Agency Operating Guidance and Regional
    Guidance are included in a work program, Regional officials
    must exercise their judgment and negotiate with a State
    over what combination of national and State priorities can
    deliver the greatest environmental benefit given the remaining
    resources available.
GUIDANCE

5.  How should the Agency Operating Guidance be refined to
    facilitate improved 'work planning?

         EPA's annual Operating Guidance should clearly arti-
    culate national priorities.  The Agency Priority list should
    be limited to those top priorities across all media.  Each
    Program Office should also list priority activities in its
    media area, ranking them and identifying those which must
    be reflected in every State work program.  The Program Office
    and Agency priority lists should complement one another.
    EPA will involve states early on in defining the order and
    scope of Agency and Program Office priorities.

         EPA Regions should negotiate work program outputs based
    upon priorities as identified and ranked in the Guidance.
    Carefully delineated priorities will help ensure work programs
    that contain clear and measureable output commitments.

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                              -3-
ESCALATION

6.  What i* the purpose of the escalation sequence outlined in
    the policy?

         The Policy on Performance-Based Assistance establishes
    a problem-solving approach toward managing EPA as-sistance to
    States.  It has been designed to promote the prompt identi-
    fication and resolution of any problems States encounter in
    trying to fulfill the output commitments they agree to meet.
    The purpose in laying out a process by which issues can be
    surfaced quickly up the chain of command in both Regions and
    States is to ensure that significant problems receive the
    prompt attention of managers capable of solving those problems
    expeditiously.  This sequence was included in the policy to
    address concern that State performance problems too frequently
    lie unattended at the lower levels of Regions and States where
    they become bigger problems.

          While this process calls for consultation with State
    representatives and notification of the national Program
    Manager* EPA's Regions are responsible for managing the
    escalation sequence and rendering any final decision to
    impose a sanction.
7.  Under what circumstances should the escalation sequence be
    followed?

         The escalation sequence was designed specifically as
    mechanism for obtaining quick decisions on whether EPA will
    impose a sanction on a State demonstrating performance pro-
    blems.  By establishing a predictable process for addressing
    these major conflicts, the policy seeks to expedite, not en-
    cumber with formality, resolution of the most serious problems
    likely to be encountered in an assistance relationship.  While
    this escalation sequence applies uniquely to decisions regarding
    sanctions, the policy encourages the escalation of any signi-
    ficant information (positive and negative) regarding the per-
    formance of a State program within both Regions and States as
    appropriate.
QUARTERLY DISBURSEMENTS

8.  Why does this policy classify quarterly disbursement schedules
    (or similar restrictive disbursement schedules) as sanctions?

         Quarterly disbursement schedules involve awarding a
    portion of a State's grant each quarter or imposing quarterly
    performance-based restrictions on standard payment procedures.
    The Task Force agreed that putting States on quarterly or
    semi-annual disbursement schedules makes it difficult for

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                             -4-
     States to plan their programs, which are generally based on
     a yearly cycle.  The Task Force felt that this type of action
     would signify a lack of faith in a State's ability to perform.
     Consequently, the Task Force viewed this type of action as a
     sanction which would reflect a State's inability to—perform.
     As with other sanctions, quarterly disbursement schedules,
     should not be imposed before attempting to resolve the problem
     through more cooperative efforts (corrective actions) or after
     a demonstration of continued past performance problems by a
     State.  As with all sanction decisions, the decision to place
     a State on a quarterly disbursement schedule should be made
     at the highest level of the Region.

          A quarterly disbursement schedule signifies that the
     recipient's performance would be reviewed after each quarter
     to determine whether full release of funds would be made
     for the next quarter.  Under the policy, putting a State
     on this type of schedule is considered to be a sanction.
 9.  Does this policy affect draw-downs under the letter of credit
     or other payment mechanisms?

          The customary mechanisms for the release of funds are
     not affected by this policy.  For example, letter of credit
     procedures, which are used by most Regions, provide a
     system whereby the recipient may promptly obtain the funds
     necessary to finance the Federal portion of a project, and
     which precludes the withdrawal of funds from the Department
     of the Treasury any sooner than absolutely necessary.
     (Payment procedures are described in the Assistance Admini-
     stration Manual, 12/3/84, Chapter 33.)  However, to the
     extent that Regions impose performance-related restrictions
     on letter of credit or other payment mechanisms, these
     restrictions would be considered a sanction under the policy.
10.  How will this policy affect States currently on quarterly
     disbursement schedules?

          Currently, a number of States are on quarterly disburse-
     ment schedules, primarily under the RCRA program.  This policy
     does not prohibit the practice of imposing a quarterly schedule
     on a State, but it does consider this practice a sanction.
     It is not necessary to amend FY'85 or FY'86 assistance agree-
     ments that already place States on quarterly disbursement
     schedules.  However, States should not automatically be either
     extended or taken off of quarterly schedules for the following
     year's grant cycle.  In deciding whether to continue or dis-
     continue quarterly disbursements. Regions should review State
     performance.  A decision to continue or discontinue a quarterly
     schedule should be based on the presence or absence of
     performance problems, or successful or unsuccessful attempts
     to resolve the problems through corrective steps.  Regional
     and programatic differences call for Regional managers to
     use their best judgment in making such decisions.            -  .
                                                             '.'.-' •* t

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                               -5-
11.  What does this policy imply for withholding funds for
     problems that are not directly related to a State's perfor-
     mance of negotiated outputs under the assistance agreement?

          This policy relates primarily to a State's performance
     of negotiated outputs under an assistance agreement.*  The
     decision to withhold funds from a State for output-related
     problems is a sanction which should be preceded by appropriate
     corrective actions and notification of high-level managers.
     Howeveri funds are sometimes withheld for problems not directly
     related to a State's accomplishment of negotiated outputs
     under an assistance agreement.  This may occur as a result
     of problems with a State's financial reporting and accounting
     system.  For problems resulting from improper fiscal manage-
     ment or administrative practice (but not directly related to
     a State's performance on work outputs), the Regions may with-
     hold funds in accordance with governing regulations.
OTHER QUESTIONS AND ANSWERS
12.  Do assistance administration procedures need to be changed?

          No.  The policy was developed carefully so as not to
     conflict with the Agency's existing procedures for managing
     assistance agreements.  Procedural details for administration
     are provided in the current (12/3/84) Assistance Administration
     Manual and they are consistent with the policy.
13.  Why does the policy encourage the submission of comprehensive
     State work plans but not require them?

          The current policy is consistent with existing regulations
     for State and Local Assistance  (40 CFR Part 35, Subpart A).
     The policy encourages but does  not require States to volunteer
     a comprehensive work program that indicates all activities
     the State is conducting under its environmental program.


14.  Why does this policy call for a mutually acceptable evaluation
     plan?

          The policy calls for EPA's evaluation of  State performance
     to be described in a plan that  is mutually acceptable  to EPA
     and the State before the assistance agreement  is  finalized.
     This is consistent with the regulation which calls for the
     Regional Administrator to develop an evaluation plan  in consul-
     tation with the State, and it reflects the principles  of EPA's
     Policy on Oversight of Delegated Programs.  Under the  policy,
     changes to the original evaluation plan could  occur as corr-
     ective actions.

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                               -6-
15.  How can the assistance agreement be amended?

          Both the policy and the regulation allow for the assist-
     ance agreement to be amended at any time by mutual agreement
     between the Regional Administrator and the State._ "Either
     party (State or Region) may ask for amendment of the assist-
     ance agreement.  (See 40 CFR Part 30-700, Subpart G.)
16.  Do Regions have discretion to devise corrective action
     strategies and determine the timing and sequence of
     corrective actions?

          Yes.  Regions should attempt to implement corrective
     action strategies which respond to the problem in a timely
     and appropriate manner.
17.  Why doesn't the policy deal with the "quality" of outputs?

          While this Policy on Performance-Based Assistance
     focuses on State performance against measureable outputs,
     it complements and is in complete conformance with EPA's
     Policy on Oversight of Delegated Programs, which calls for
     review and evaluation activities which ensure quality
     State programs.  Host of EPA's programs have instituted
     evaluation programs which examine not only "beans," but
     the quality of those beans.  The oversight of work program .
     outputs should occur as part of a comprehensive examination
     of State program performance.
18.  How do State output commitments relate to SPMS commitments?

          EPA should always discuss with States any State
     commitments to be included in EPA's Strategic Planning
     and Management System.  Under a system of performance-based
     assistance, it is imperative that work program outputs which
     are also SPMS commitments be agreed upon in advance by Regions
     and States.  Since poor performance may have fiscal consequences
     under a performance-based system, it would be unfair to hold
     States accountable for SPMS measures they were not aware of
     or did not accept.

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,—   X

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                                                                   VI.H.3
"Revised Policy Framework for State/EPA Enforcement Agreements", dated
August 25, 1986 (Supersedes H.I).  See also GM-41, revised.

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                         WASHINGTON. D.C. 20460
                              AUG 2 5 1986
                                                           orrpctor
                                                        TMt
MEMORANDUM
Revised Policy Framework for State/EPA Enforcement
Agreements
SUBJECT:
FROM:     A. James Barnes
          Deputy Administrate

TO:       Assistant Administrators
          Associate Administrator for Regional Operations
          Regional Administrators
          Regional Counsels
          Regional Division Directors
          Directors, Program Compliance Offices
          Regional Enforcement Contacts
     I am pleased to transmit to you a copy of the Agency's
revised Policy Framework for State/EPA Enforcement Agreements.
The Policy Framework, originally developed in 1984, along with
program-specific implementing guidance, will continue to serve as
the blueprint for our State/EPA enforcement relationship.  The
revised Policy Framework integrates new guidance developed since
it's original issuance.  It reinforces the Guidance for the FY
1987 Enforcement Agreements Process which I transmitted to you on
April 15, 1986 and should serve as your guide for negotiations
and implementation of the Enforcement Agreements.

     Although the intent of the revisions was to incorporate new
policy, the process gave the Agency, with the assistance of the
Steering Committee on the State/Federal Enforcement Relationship,
an opportunity to reassess with the States our original approach.
This process has clearly reaffirmed that the basic approaches we
put in place in 1984 for an effective working partnership are
sound and that all parties continue to be committed to its effective
implementation.

     The revisions incorporate into the Policy Framework addenda
developed over the past two years in the areas of oversight of
State civil penalties, involvement of the State Attorneys General

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                               -2-
in the Enforcement Agreements process, and implementation of
nationally managed or coordinated cases.  The revisions also
reflect, among other things, some of the points that have been
emphasized in my annual guidances on the Enforcement Agreements
process, the Evaluation Report on Implementation of the Agreements,
and the Agency's Criminal Enforcement and Federal Facilities
Compliance draft strategies.                    '

     I am firmly committed to full and effective implementation
of the Policy Framework and am relying on your continued .personal
attention to this important effort.  I plan to review the Region's
performance in implementing the revised Policy Framework and the
program-specific guidance, particularly the "timely and appropriate11
enforcement response criteria, as part of my semi-annual regional
visits.

     I encourage you to share the revised Policy Framework with
your-State counterparts.

Attachments

ccs  Steering Committee on the State/Federal Enforcement
       Relationship

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POLICY FRAMEWORK FOR STATE/EPA
    ENFORCEMENT AGREEMENTS
                        August 1986
                (originally issued June 1984}
                OFFICE OF ENFORCEMENT
                  AND COMPLIANCE MONITORING

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     POLICY FRAMEWORK FOR STATE/EPA ENFORCEMENT  SREEMENTSV
     Achieving and maintaining a high level of compliance with
environmental laws and regulations is one of the most inportant
goals of Federal and State environmental agencies* and is an essential
prerequisite to realizing the benefits of our regulatory programs.
While States and local governments have primary responsibility for
compliance and enforcement actions within delegated or approved
Spates, EPA retains responsibility for ensuring fair and effective
enforcement of Federal requirements, and a credible national deterrence
to noncompliance.  An effective State/Federal partnership is critical
to accomplishing these goals, particularly given limited State and
Federal resources.  The task is difficult and one of the most sensi-
tive in the EPA/State relationship, often compounded by differences
in perspectives on what is needed to achieve compliance.

     To establish an effective partnership in this area, and
implement the State/Federal enforcement relationship envisioned
in the Agency Oversight and Delegation policies, EPA called for
State-specific enforcement agreements to be in place beginning
FY 1985 which will ensure there are:  (1) clear oversight criteria,
specified in advance, for EPA to assess good State —or Regional—
compliance and enforcement program performance; (2) clear criteria
for direct Federal enforcement in delegated States with procedures
for advance consultation and notification; and (3) adequate State
reporting to ensure effective oversight.

     This document is tne Agency's policy framework for implementing
an effective State/Federal enforcement relationship through national
program guidance and Regional/State agreements.  It is the product
of a Steering Committee effort involving all major national EPA
compliance and enforcement program directors, State Associations,
State officials from each of the media programs, and the National
Governors' Association.  EPA anticipates that the relationship, and
the use of the agreements first established in FY 1985, will evolve
and improve over time.  They will be reviewed, and updated where
necessary, on an annual basis.  The Policy Framework will be subject
to periodic review and refinement.  Originally issued on June 26,
1984, the Policy Framework has been updated to reflect additional
guidance developed since that time.
   The term Enfc cement Agreement  is ased throughout to describe the
   document(s), be  it an existing  grant, SE^, MOU, or separate
   Enforcement Agreement, which contains the provisions outlined in
   the Policy Framework and related media-specific guidance.  (Sec
   1-, A *-»»• ••--'-«•*-^*ion of

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Policy Framework Overview

     The Policy Framework applies both to Headquarters program
offices in their development of national guidance and to Regions
in tailoring program guidance to State-specific.needs and agreements.
Although, enforcement agreements are not required for States which
do not have -delegated or approved programs, Regions are encouraged
to apply to these States certain policies and provisions where
relevant, particularly advance notification and consultation
protocols.  The Policy Framework is divided into six sections, to
address the following key areas:
B,
    State/Federal Enforcement "Agreements":
    Substance (pages 4-7)
                                             Form* Scope and
D.
    This section sets forth for Regions and States developing
    .enforcement agreements, the areas that should be discussed,
    priorities, and the degree of flexibility that Regions have in
    tailoring national guidance to State-specific circumstances,
    including the form and scope of agreements.
    Oversight Criteria and Measures:
    (pages 8-17)
Defining Good Performance
    This section is primarily addressed to EPA's national programs,
    setting forth criteria and measures for defining good performanc
    generally applicable to any compliance and enforcement program
    whether administered by EPA or a State.  It forms the basis for
    EPA oversight of State programs.  A key new area that should
    receive careful review is the definition of what constitutes
    timely and appropriate enforcement response. Section B, Criterion
    IS, pages 11-13.

    Oversight Procedures and Protocols (pages 18-20)

    This section sets forth principles for carrying out EPA's
    oversight responsibilities, including approach, process and
    follow-up.

    Criteria for Direct Federal Enforcement in Delegated States
    (pages 21-25)            ',

    This section sets forth the factors EPA will consider before
    taking direct enforcement action in a delegated State and
    what States may reasonably expect of EPA in this regard
    including the types of cases and consideration of whether a
    State is taking timely and appropriate enforcement action.
    It also establishes principles for how EPA should take enforce-
    ment action so that we can be most supportive of strengthening
    State programs .

    Advance Notification and Consultation (pages 26-30)

    This section sets forth EPA's policy of "no surprises" and
    what arrangements must be made with each State to ensure the

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    policy is effectively carried out by addressing planned
    inspectionsi enforcement actions, press releases, dispute
    resolution and assurances that publicly reported performance
    data is accurate.

F.  State Reporting (pages 31-35)

    This section sets forth seven key measures EPA will'use, at a
    minimum, to manage and oversee performance by Regions and
    States. .It summarizes State and regional reporting 'requirements
    for:  (1) compliance rates; (2) progress in reducing significant
    non-compliance; (3) inspection activities; (4) formal adminis-
    trative enforcement actions; and (5) judicial actions, at
    least on a quarterly basis.  It also discusses required
    commitments for inspections and for addressing significant
    .non-compliance.

    In addition, it sets forth State and regional requirements for
    recordkeeping and evaluation of key milestones to assess the
    timeliness of their enforcement response and penalties imposed^
    through those actions.

Appendices

    Appendix A:  Annual priorities and implementing guidance
    provides a list of the annual priorities for implementing the
    enforcement agreements and a summary index of what national
    program guidance has been or will be issued by programs to
    address the areas covered by the Policy Framework for State/EPA
    Enforcement Agreements.

    Appendix 3:  Addendum to the Policy Framework on "Implementing
    Nationally Managed or Coordinated Enforcement Actions,"
    issued January 4, 198S.

    Appendix C:  Guidance on "Division of Penalties with State
    and Local Governments," issued October 30, 1985.

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 A. STATE/FEDERAL ENFORCEMENT AGREEMENTS:   FORM,  SCOPE,  AND SUBSTANCE
      This  section  sets  forth  the  form,  scope  and  substarice  of  the
 State/Federal  Enforcement  Agreements  as well  as the  degree  of
 flexibility Regions  have in tailoring national policy  to  individual
 States.                                                       *
        ->
 1.  What Form  Should the Agreements Take?

      We do not anticipate  the  need for  a new  vehicle or document
 for the State/Federal enforcement agreements.  Wherever possible,
 State/Federal  agreements should be set  forth  in one  or more of
 a number of existing formats:  grant  agreements,  State/EPA  Agreements,
 Memoranda  of Agreement  or  Understanding or a  statement of Regional
 Office operating policy.   Where there are -new documents the
 appropriate linkage  should be  made to grants  and  SEA's as applicable.
 To the extent  the  areas covered by this Policy Framework  translate.
 into  specific  output commitments and  formal reporting  requirements',
 they  may belong in the  grant agreements as specified in national
 program grant  guidance. Regions should discuss with the  States
 at an early stage  in the planning process their views  on  both the
 form  and substance of the  agreements.   Once the basic  agreements
 are in place,  Regions should consider most aspects of  the written
 agreements as  multi-year,  minimizing  the need to  renegotiate the
 agreements each year.   Regions should conduct an  annual review
with  the States to identify needed revisions  and  additions  to the
agreements to  address identified problems or reflect further national
guidance.

 2.  What is the Scopeof the Agreements?    • •

      This guidance and  the State/EPA  agreements cover  all
aspects of EPA's civil  compliance and enforcement programs,
 including those activities  involving  Federal facilities.  The
criminal enforcement  program is not included and will  be addressed
elsewhere.

      Discussions between EPA Regions  and States should cover the
minimum areas  listed  below:

     o  Oversight Criteria and Measures;  Good Performance  Defined
        —See  Section B.

     o  Oversight Procedures and Protocols — See Section C.

     o  Criteria for  Direct EPA Enforcement — See Section  D.

     o  Procedures for  Advance Notification and Consultation — See
        Section E.

     o  Reporting Requirements — See Section F.

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However, Regions and States are not expected to duplicate national
Program guidance in their agreements -- we are not looking for
lengthy documents*  Written agreements resulting from these
discussions could cover topics which are not clearly specified
elsewhere.  If not otherwise specified, national policy.will apply
and should be so stated in the state agreements.  Although not
required for non-delegated or unapproved programs, Regions are
encouraged to apply certain policies and provisions where relevant,
particularly advance notification and consultation protocols.

     This Policy Framework and the resulting State/EPA Enforcement
Agreements are intended to enhance enforcement of State and
Federal environmental laws.  Each agreement should be careful
to note that nothing in them or this Policy Framework constitutes
or,creates a valid defense to regulated parties in violation of
environmental statutes, regulations or permits.

3.  Parties to the Agreements and Participants in the Process.

     It is important to involve the appropriate State and regional-
personnel early in the agreements process.  In the Regions, this
means involving the operating level program staff and the Regional
Counsel staff along with top management; and in the States it
means the participation of all the organizational units responsible
for making enforcement work, e.g., State program staff, those
responsible for oversight of field operations, staff attorneys,
and the State Attorneys General (AG).  The State agency should
have the lead in establishing effective relationships with the
State AG or State legal staff, as appropriate.  The Regions
should ensure that there is adequate communication and coordination
with these other participants in the enforcement process.  States
are strongly encouraged to commit advance notification and
consultation procedures/protocols between the State agency and
the State AG (or State legal staff, as appropriate) to writing.
The Region should seek to incorporate these written protocols
into the State/EPA Enforcement Agreements (See discussion on
pages 17 and 26-27).

4.  What Flexibility do Regions Have?

     Regions must be allowed substantial flexibility to tailor
agreements to each State, as the agreements process is  intended
to be based upon mutual understandings and expectations.  This
flexibility should be exercised within the framework of national
program policy and the Agency's broad objectives.  Specifically,

     a. Oversight Criteria:

Oversight criteria would generally be provided in national
program guidance but Regions should tailor their general oversig'it
to address environmental and other priorities in the Region or
State, and other specific areas of concern that are unique to
an individual State, including any issues raised by the scope
of State enforcement authorities, unique technical problems and
available expertise, and areas targeted for improvement.

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     In addition, Regions and States should adapt national
timely and appropriate enforcement response criteria, to State-
specific circumstances to fit State authorities and procedures
as follows:

     (i) Timeliness;   The national program guidance on key
     milestones and timeframes should be applied to all States
     with adjustments to accommodate each State's laws and legal
     procedures.  Such adjustment can be important particularly
     where the proposed enforcement action cannot possibly take
     place within the proposed timeframes or where a State
     chooses to address problems more expeditiously than the
     Federal guidelines.  The trigger points should be realistic
     expectations, but within modest variance from the national
     goals.  Other adjustments should not be made solely because
     a State program consistently takes longer to process these
   -'actions due to constraints other than procedural require-
     ments* e.g., resources.  However, if this is the case the
     timeframes should serve as a basis for reviewing impediments
     with the State to identify how problems can be overcome and
     to explore ways  over time for the State program to perform
     more efficiently.  (See discussion in Section B, p.13)

     The timeframes are not intended to be rigid deadlines for
     action, but rather are:  (1) general targets to strive  for
     in good program performance; (2) trigger points that EPA
     and States should use to review progress in individual
     cases; and (3) presumptions that, if exceeded, EPA may
     take direct enforcement action after consideration of all
     pertinent factors and consultation with the State.  It  is
     not the Agency's intention to assume the major enforcement
     role in a delegated State as a result of these timeframes.
     The trigger points should be realistic expectations,  but
     within modest variance from the national goals.  It must
     also be realized that in some programs we need experience
     with the timeframes to assess how reasonable and workable
     they really are  and further, that judgments on what is  a
     reasonable timetable for action must ultimately be case
     specific.  For example, complex compliance .problems may
     require longer-term studies to define or achieve an appro-
     priate remedy.

     (ii) Appropriate Enforcement Response;

     (a) Choice of response;  National medium-specific program
     guidance applicable to State programs on appropriate
     enforcement response should be followed (See Appendix A).
     There is usually sufficient flexibility within such
     guidance to allow the exercise of discretion on how best
     to apply the policies to individual cases.  The Agency  is
     making every effort to set forth a consistent national
     policy on enforcement response for each program.  It is
     therefore essential that in setting forth clear expectations
     with States this guidance not be altered.

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     (b) Definitions of formal enforcement actions:  Regions
     should reach agreement with States as to howcertain State
     enforcement actions will be reported to and interpreted by
     EPA.  This should be based upon the essential characteristics
     and impact of State enforcement actions, and not merely
     upon what the actions are called.  National program guidance
     setting forth consistent criteria for this'purpose should
     be followed, pursuant to the principles listed in Section B,
     pages 11-12.
                                                       *
     (c) Civil Penalties and Other Sanctions;  Program guidance
     must also be followed on where a penalty is appropriate.
     Regions have the flexibility to consider other types of State
     sanctions that can be used as effectively as cash penalties
     to create deterrence, and determine how and when it might be
     appropriate to use these sanctions consistent with national
     guidance.  Regions and States should reach understanding on
 .  " documentation to evaluate the State's penalty rationale.
     Maximum flexibility in types of documentation will be
     allowed to the State.

5.   Procedures and Protocols on Notification and Consultation:

     Regions and States should have maximum flexibility to fashion
arrangements that are most conducive to a constructive relationship,
following the broad principles outlined in this document.

6.   State-Specific Priorities:

     In addition, while of necessity EPA must emphasize commitments
by States to address significant noncompliance and major sources
of concern, Regions should be sensitive to the broad concerns of
State Programs .including minor sources and the need to be responsive
to citizen complaints.  Regions should discuss the State's perspective
on both its own and national priorities, and take into account
State priorities to the extent possible.

7.   What Does it Mean to Reach Agreement?
     To the extent possible, these agreements should reflect mutual
understandings and expectations for the conduct of Federal and
State enforcement programs.  At a minimum, EPA Regions must:  (1)
be clear and ensure there are "no surprises"; (2) make arrangements
with the States so that actions taken are constructive and supportive;
and (3) tailor the application of the national program guidance
to the States' programs and authorities.  Where mutual agreement
cannot be achieved, clear unilateral statements of policy will
have to suffice, with commitments to try to seek further agreements
over time.  Areas where agreements have not been reached should
be clearly identified for senior Agency management attention.

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B.  OVERSIGHT CRITERIA AND MEASURES:  DEFINING GOOD PERFORMANCE
     The first step to achieving strong and effective national
compliance and enforcement programs is a clear definition of
what constitutes good performance.  Because each of EPA\s programs
embodies unique requirements and approaches, good performance
must be defined on a program-specific basis.  Adjustments also.
must be made in applying criteria and measures to the States
and Regions, based upon their environmental problems and
authorities.  Nevertheless, there are several basic elements
which will generally be applicable to a good compliance and
enforcement program.in any of our medium-specific programs.
The following outlines the criteria and measures that form
the.common framework for defining a quality program.  The
framework is to serve as a guide to the national programs as
they develop, in cooperation with Regions and States, the
criteria they will use to assess their performance in implementing
national compliance and enforcement programs.
                                        t
     The framework is not intended to be adopted word-for-word
by the programs, nor is there any format implied by this list.
What is important are the concepts.  This section addresses
only the elements of a quality program.  Issues such as how
oversight should be conducted are addressed in Section C.  Each
national program may choose to focus on certain elements of
performance in a given year.

     These criteria and measures are intended to apply to the
implementing agency, that is, to an approved or delegated
State or to an EPA Region in the event a program is not
"delegated."  Our philosophy is that EPA should be held to
the same standards as we would apply to the States if they
were implementing the program.  Portions may also apply to
those non-approved or non-delegated States which are adminis-
tering portions of the programs under cooperative agreements.

CRITERION »1  Clear Identification of and Priorities for
the RegulatedCommunity

     A quality compliance and enforcement program is based
upon an inventory of regulated sources which is complete,
accurate and current*  The data should in turn be accessible/
preferrably in automated data systems which are accurate, and
up-to-date.'  The scope of coverage for the inventory should
be appropriately defined by each program as it is probably
not feasible to identify every person or facility subject to
environmental laws and regulations, especially when they are
numerous small sources.  Those priorities should be clearly
established in national program guidance and tailored to
State-specific circumstances as appropriate.

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     The inventory of sources or other relevant information on
sources should be utilized as a basis for a priority-setting
system established by the administering agency.  These priorities
should reflect and balance both national priorities and state-
specific priorities.  A quality program uses those priorities
as a basis for program management.  National priorities are
generally set forth in EPA's Operating Year Guidance and program-
specific compliance and enforcement strategies.  State-specific
priorities should address not only efforts to achieve broad.
based compliance but also should assess the expected environmental
impact of targeting enforcement and compliance monitoring to
specific geographic areas or against certain source types.
Ambient monitoring systems can provide an important point of
departure for priority-setting.

CRITERION 12. Clear and Enforceable Requirements

     Requirements established through permits, administrative
orders and consent decrees should clearly define what a
specific source must do by a date certain* in enforceable
terms.  It is not EPA's intention in this policy framework to
suggest that EPA conduct a top down review of a State or
Regional program's entire regulatory program.  However*
areas where provisions cannot be enforced due to lack of
clarity or enforceable conditions should be identified and
corrected.

CRITERION 13  Accurate and Reliable Compliance Monitor!ng

     There are four objectives of compliance monitoring:

          reviewing source compliance status to identify
          potential violations;

       -  helping to establish an enforcement presence;

       -  collecting evidence necessary to support enforcement
          actions regarding identified violations; and

       -  developing an understanding of compliance patterns
          of the regulated community to aid in targeting
          activity* establishing compliance/enforcement
          priorities* evaluating strategies* and communicating
          information to the public.

     The two factors in assessing the success of a compliance
monitoring program are coverage and quality.

Coverage:  Each program's strategy should reflect a balance
between coverage:   (1) for breadth, to substantiate the reli-
ability of compliance statistics and establish an enforcement
presence; and  (2) for targeting those sources most likely to
be out of compliance or those violations presenting the most
serious environmental or public health risk.

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                                                             10
      Inspections!   Each  administering  agency  should  have  a
      written ari  reviewable  inspection strategy,  reviewed and
      updated annually, as  appropriate:  in  some programs  a
      multi-year strategy may be  preferable.   The  strategy
      should demonstrate  the  minimum coverage  Cor  reliable
      data gather:  g and  compliance  assessment set forth in
      national program guidance and  meet legal requirements
      for a "neutral inspection scheme."  The  strategy  should
      also address  how the  inspections  will  r.ost' effectively
      reach priority concern.:  and pote  tial  noncompliers including
      the use of self-reported data,  citizen complaints and
      historic compliance patterns.   The strategy  will  be
      assessed on whether it  embodies the appropriate mix  of
      categories of  inspecti-ns,  frequency and level  of detail*
      Inspections should  then be  carried out in a  manner
   .•"  consistent with the inspection strategy.

      Source Self-Monitor!ngand  Reporting;  The administering
      agency should  ensure  that minimum national requirements
      for source self-monitoring  and reporting are imposed
      and complied with,  either through regulation or permit
      condition, pursuant to  national guidance as  appropriate.

Quality;  Each program should define minimum.standards for
quality assurance of data  ?  d data  systems, and timely and
complete doc-mentation of  results.   At a minimum,  each program
should have a quality assurance  program to  insure the  integrity
of the compliance monitoring  program.   This quality  assurance
program should address essential lab analysis and chain of
custody issues as appropriate.
     Inspections;  Inspectors should be able to.accurately
     document evidence needed *.o determine the nature and
                              .icularly the presence of
                              Documentation of inspection
                              , complete and able to support
                              •sponses, as appropriate to the
                                 Federal oversight  inspections
extent of violations, p;
significant violations
findings should be tiir
subsequent enforcement
purpose of the inspect: :.n.
     should corroborate findings.  Oversight  inspections are
     a principal means of evaluating both the quality of an
     inspection program and inspector training.

     Source Self-Monitoring;  The administering agency should
     have a strategy for and implement quality assurance
     procedures, with sufficient audits and follow-up action
     to ensure the integrity of self-reported data.
CRITERION 14  High or Improving Rates of Continuing Compliance

     The long-term goal of all of our compliance and enforcement
programs is to achieve high rates of continuing compliance
across the broad spectrum of the regulated community.  Until
that goal is achieved, compliance rates can fluctuate  for
several reasons.  In assessing how well an administering
agencv ** *nfke>t**"* *>»»» i*>*i of high or iit"***'*"'1*^ »•»•»<»*  r»f

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                                                            11
compliance, other factors must be assessed in addition to
the overall compliance rate.  Improved inspections or inspection
targeting often can result in a temporary decrease in rates
of compliance until newly found violations are corrected and
the regulated community responds to the more vigorous attention
to specific compliance problems.  In these instances, a
decrease in the rate of compliance would be a sign of a
healthy compliance and enforcement program.  At a minimum,
programs should design mechanisms to track the progress1 of
all sources out of compliance through major milestones up to
achieving final physical (full) compliance with applicable
regulations and standards.

     Program quality must also be assessed in terms of how well
the program is returning significant noncompliers to compliance.
The-use of lists of significant violators and specific commitments
to* track and resolve significant noncompliance should be
part of the planning process of the administering agency,
and, between States and Regions.  The lists should be developed
in consultation with the States and continually updated each
fiscal year and sources on it tracked through to final physical
compliance.

CRITERION 15  Timely and Appropriate Enforcement Response

    Quality enforcement programs ensure that there is timely
and appropriate enforcement response to violations.  Expectations
for what constitutes timely and appropriate action should be
based upon national program guidance, tailored to the procedures
and authorities in a given State and assessed in regard to
particular circumstances surrounding each instance of violation.
National programs must establish benchmarks or milestones
for what constitutes timely and appropriate enforcement
action, forcing progress in enforcement cases toward ultimate
resolution and full physical, compliance.  This concept is a
key new feature to our compliance and enforcement program
implementation.

    In designing oversight criteria for timely enforcement
response, each program will attempt to capture the following
concepts:

    1.  A set number of days from "detection" of a violation
        to an initial response.  Each program should clearly
        define when the clock starts, that is, how and when
        a violation is "detected."

    2.  Over a specified period of time, a full range of enforce-
        ment tools may be used to try to achieve compliance,
        including notices of violation, warning letters, phone
        calls, site visits, etc..  The adequacy of these responses
        will be assessed based upon whether they result in
        expeditious compliance.

    3.  A prescribed number of days from initial action within
        which a determination should generally be made, that

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                                                           12
       either compliance has been achieved or an administrative
       enforcement action has been taken (or a judicial referral
       has been initiated, as appropriate) that, at a minimum:

       •  Explicitly requires recipient to take some corrective/
          remedial action, or refrain from certain behavior,
          to achieve or maintain compliance;
                                                      t
       •  Explicitly is based on the issuing Agency's deter-
          mination that a violation has occurred;     :

       0  Requires specific corrective action, or specifies a
          desired result that nay be accomplished however the
          recipient chooses, and specifies a timetable for
          completion;

       0  May impose requirements in addition to ones relating
          directly to correction (e.g., specific monitoring,
          planning or reporting requirements); and

       *  Contains requirements that are independently enforce- •'*
          able without having to prove original violation and
          subjects the person to adverse legal consequences
          for noncompliance.
                                                          \
     4.   A specific point at which a determination is made
         either that final physical compliance has been  achieved,
         •that the source is in compliance with a milestone in
         a prior order, or that escalation to a judicial
         enforcement action has been taken if such actions
         have not already been initiated.

         In developing program-specific guidance,  this milestone
         may  be treated more as a concept than as a fixed timetable,
         taking into account the fact that the administrative
         hearing process and the State Attorney General's actions
         are  not within the direct control of the administering
         agency.£/  What is important,  is the embodiment of the
         concept of timely follow-up and escalation,  in  requirements
         for  tracking and management.

     5.   Final physical compliance date is firmly established
         and  required of the facility.   Although it is not
         possible for programs to establish any national
         timeframes,  the concept of final physical compliance
         by a date certain should be embodied in EPA and State
         enforcement actions*

     6.   Expeditious physical  compliance is required. It may
         not  be possible for programs to define "expeditious"
         in terms of  set time  periods,  bat some concept  of
         "expeditious"  (i.e.,  that the  schedule will  result in
         a return to fjll physical compliance as quickly as
         can  reasonably be expected)  should be embodied  in
         each program's guidance.
'fee  p.  17,  '6-27
 for  coordinating
 legal staffs.
•  regar3i«~
with  the  Si
• V,««
   At c^.
or other

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                                                            13
     Timeframes established by the national programs for each
of these minimum milestones are principally intended to serve
as trigger points and not as absolute deadlines* unless
specifically defined as such.  Whatever timeframes are established
are intended to apply only to Federal requirements as adopted
by the States, and do not apply to State statutes and require-
ments that go beyond those required by Federal law.  The
timefranms are key milestones to be used to manage the program,
to trigger review of progress in specific cases, and a presumption
of where EPA may take direct enforcement action after consideration
of all pertinent factors and consultation with the State.

     Timeframes and their use in management will evolve over
time as they will have to reflect different types of problems
that may warrant different treatment.  For example, programs
will- have to take into account such factors as new types of
violations, the difference between operating and maintenance
violations versus those that require installation of control
equipment, emergency situations which may fall outside the
scope of the normal .timeframes for action, etc.

     Administering agencies are expected to address the full
range of violations in their enforcement responses considering
the specific factors of the case and the need to maintain a
credible enforcement presence.  However, the new management
approach setting forth desired timeframes for timely action
could have resource implications beyond what is currently
available to or appropriate for the full range of sources
and violations.  Therefore, as we begin to employ the concept
of timely and appropriate enforcement response, at a minimum,
the focus should be on the greatest problems, i.e., the
significant norvcompliers.  Over time, and with more experience,
this concept should be phased-in to cover a broader range of
violations.  This in no way should constrain the programs
from applying the concepts broadly.

     The choices of appropriate response are to be defined
within the constraints of national program guidance and
applied by the administering agency based upon consideration
of what is needed:  (1) in general, to achieve expeditious
correction of the violation, deterrence to future noncompliance
and fairness; and (2) in individual circumstances, based upon
the gravity of the violation, the circumstances surrounding
the violation, the source's prior record of compliance and
the economic benefits accrued from noncompliance.  With
three exceptions, the form of the enforcement response is not
important by itself, as long as it achieves the desired
compliance result.  The exceptions generally fall into the
following three categories:

     1.  If compliance has not been achieved within a certain
         timeframe, the enforcement response should meet
         minimum requirements, usually associated with at
         least the issuance of an administrative order (see
         criteria listed above) or judicial referral.

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                                                            14

      2.   Because of  the  need  to create a strong deterrence
          to  noncomplyanee,  it is  important  to assess penalties
          in  certain  cases,  and only certain types of enforcement
          actions can provide  penalties.  Each program must
          clearly define, as appropriate, the circumstances
          under which nothing  less than a penalty or equivalent
          sanction will be acceptable.  (See Criterion 16 below.)
                                                       i"
      3.   In  some circumstances, a judicial  action or sanction '
          is  usually  the  only  acceptable enforcement tool.  Each
          program must define  these circumstances as appropriate*
          For example, a  judicial action might be required
          where a compliance schedule for Federal requirements
          goes beyond Federal  statutory deadlines.

  -    A good  program  should have adequate legal authority to
achieve the  above objectives.  Where deficiencies have been
identified,  steps should be taken to fill identified gaps.

CRITERION *  6  Appropriate Use of Civil Judicial and Administrative
Penalty and  other Sanction Authorities to Create Deterrence*/    *""

1.  Effective Use of Civil Penalty Authorities and Other Sanctions;

      Civil penalties and other sanctions play an important role in
an effective enforcement program.  Deterrence of noncompliance
is achieved  through:  1) a credible likelihood of detecting a
violation, 2) .the speed of the enforcement  response, and 3) the
likelihood and severity of the sanction.  While penalties or
other sanctions are  the critical third element in creating
deterrence,  they can also contribute to greater equity among
the regulated community by recovering the economic benefit a
violator  gains.from  noncompliance over those who do comply.

      Effective State and regional programs  should have a clear plan
or strategy  for how  their civil penalty or  other sanction
authorities will be  used in the enforcement program.  At a
minimum,  penalties and/or sanctions should  be obtained where
programs  have identified that a penalty is  appropriate (see
Criterion #5 above).

     The  anticipated use of sanctions should be part of the
State/EPA Enforcement Agreements process, with Regions and
States discussing and establishing how and  when the State
generally plans to use penalties or other approaches where
some  sanction is required.
Excerpts from the Policy on "Oversight of State Civil Penalties'
2/28/86.  The focus of the policy is on both civil judicial and
civil'administrative penalties, and does not cover criminal
penalties.

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                                                             15
       EPA generally prefers the use of cash penalties to other
  types of sanctions.*/  However, there nay be other sanctions
  which are preferable to cash penalties in some circumstances.
  In particular* States may have.a broader range of remedies than
  those available at the Federal level.  Examples* of other sanctions
  may be:'  pipeline severance (UIC), license r,e vocation (FIFRA)
  or criminal'sanctions including fines and/or incarceration.
  National program guidance should clarify in general terms how
  the use of other types of sanctions fits into the program's
  penalty scheme at the Federal and State levels* e.g.f whether
  they are substitutes for or mitigate a cash penalty.*/  in
  any case. States are urged to use cash penalty authorities in
  those cases for which a penalty is "appropriate" and/or to use
  other sanctions pursuant to these agreements with the Regions.

       EPA encourages States to develop civil administrative
  penalty authority in addition to civil judicial penalty authority,
  and to provide sufficient resources and support for successful
  implementation where they do not already have this authority.
  In general, a well designed administrative penalty authority
  can provide faster and more efficient use of enforcement
  resources* when compared to civil judicial authorities.  Both
  civil judicial and administrative penalty authorities are
  important, complementary* and each should be used to greatest
  advantage.  EPA is similarly seeking to gain administrative
  penalty authority for those Federal programs which do not
  already have it.  To support State efforts to gain additional
  penalty authorities, EPA will share information collected on
  existing State penalty authorities and on the Federal experience
  with the development and use of administrative authorities.

  2.  Oversight of Penalty Practices:

       EPA Headquarters will oversee Regional penalties to
  ensure Federal penalty policies are followed.  This oversight
  will focus both on individual penalty calculations and regional
  penalty practices and patterns.
*»/In limited circumstances where they meet specified criteria,  EPA
  and DOJ policies and procedures allow for alternative payments —
  such as beneficial projects which have economic value beyond
  the costs of returning to compliance -- in mitigation of
  their penalty liability.
^/Until program-specific guidance is developed to define the
  appropriate use of civil sanctions, the Region and State should
  consider whether the sanction is comparable to a cash penalty
  in achieving compliance and deterring noncompliance.  Costs
  of returning to compliance will not be considered a penalty*
  Criminal authorities, while not clearly comparable to cash
  penalties, can be used as effectively as cash penalties to
  create deterrence in certain circumstances.

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m
     EPA will review state penalties  in the context of the State's
 overall enforcement program not merely on  its use of cash penalties.
 While individual cases will tfe~ discussed,  the program review win
 more broadly evaluate how penalties and other sanctions can be
 used most effectively.  The evaluation will consider whether the
 penalties or other sanctions are sought in appropriate cases,
 whether the relative amounts of penalties or use of sanctions
 reflect increasing severity of the violation, recalcitrance,
 recidivism etc., and bear a reasonable relationship to the economic
 benefit of noncompliance (as applicable) and whether they are
 successful in contributing to a high  rate of compliance and
 deterring noncompliance.  EPA may also review the extent to which
 State penalties have been upheld and  collected.

 3»"- Development and'Use of Civil Penalty Policiesi

     EPA Regions are required to follow written Agency-wide
 and program specific penalty policies and procedures.

     EPA encourages States to develop and use their own State
 penalty policies or criteria for assessing civil penalties.
 The advantages of using a penalty policy include:

     -  leads to improved consistency;
        is more defensible in court;
     -  generally places the Agency in a stronger position to
        negotiate with the violator;
     *  improves communication and support within the
        administering agency and among the agency officials,
        attorneys and judges especially where other organizations
        are responsible for imposing  the penalty;
     -  when based on recoupment of economic benefit and a
        component for seriousness, deters violations based
        upon economic considerations while providing some
        equity among violators and nonviolators; and
        can be used by judges as a basis for penalty decisions.

EPA encourages States to consider EPA's penalty policies as
 they develop their own penalty policies.

4.  Consideration of Economic Benefit of Noncompliance!

     To remove incentives for noncompliance and establish deterrence,
EPA endeavors, through its civil penalties, to recoup the economic
benefit the violator gained through noncompliance.  EPA encourages
States to consider and to quantify where possible, the economic
benefit of noncompliance where.this is applicable.  EPA expects
States to make a reasonable effort to calculate economic benefit
and encourages States to attempt to recover this amount in negoti-
ations and litigation.  States may use the Agency's computerized
model (known as BEN) for calculating that benefit or different
approaches to calculating economic benefit.  EPA will provide
technical assistance to States on calculating the economic benefit
of noncompliance, and has made the BEN computer model available
 to States.

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                                                       17
CRITERION »7  Accurate Recordkeeping and Reporting

     A quality program maintains accurate and up-to-date files
and records on source performance and enforcement responses
that are reviewable and accessible.  All recordkeeping and
reporting should meet the requirements of the quality assurance
management policy and procedures established by each national
program consistent with the Agency's Monitoring Policy and
Quality Assurance Management System.  Reports from States to
Regions, Regions to Headquarters must be timely, complete and
accurate to support effective program evaluation and priority-
setting.

     State recordkeeping should include some documented rationale
for the penalties sought to support defensibility in court, enhance
Agency's negotiating posture, and lead to greater consistency.
These records should be in the most convenient format for adminis-
tration of the State's penalty program to avoid new or different
recordkeeping requirements.

CRITERION 16  Sound Overall Program Management

     A quality program should have an adequate level, mix and
utilization of resources, qualified and trained staff, and adequate
equipment.  The intention here is not to focus on resource and
training issues unless there is poor performance identified
elsewhere in the program.  In those instances, these measures
can provide a basis for corrective action by the administering
agency.  There may be, however, some circumstances in which
base level of trained staff and equipment can be defined by a
national program where it will be utilized as an indicator of
whether the program is adequate.

     Similarly, a good compliance and enforcement program should
have a clear scheme for how the operations of other related
organizations, agencies and levels of government fit into the
program, especially the State Attorneys General or other appropriate
State legal organizations.  The State Agency should, at a roinimj.-n,
ensure that the State AG, internal legal counsel, or other appropriate
government legal staff are consulted on the enforcement commitments
the State is making to EPA to assure that the level of legal
enforcement support and associated resources needed to accomplish
the agreed-upon goals are secured.  This coordination should
result in timely review of initial referral packages, satisfactory
settlement of cases, as appropriate, timeI/ filing and prosecution
of cases, and prompt action where dischargers violate consent
decrees.  (See Section E, p. 26-27).

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                                                                  18
 C.  OVERSIGHT  PROCEDURES AND-PROTOCOLS
     This section addresses how EPA should conduct its Oversight
function, its approach, process and follow-up, to build and improve
individual programs and overall national performance.  On Hay 31,
1985, the Agency issued the Policy on Performance-Based.Assistance,
which contains guidance on how Regions should oversee assistance
agreements.  Both of these policies call for oversight with a
problem-solving orientation with clear identification of actions
needed to correct problems or recognize good performance.

1.  Approach

   •  The goal of oversight should be to improve the State (or Regional)
compliance and enforcement program.  To accomplish this, oversight
should be tailored to fit State performance and capability.  The
context must be the whole State compliance and enforcement program,
although EPA's focus for audit purposes will be on national priorfty
areas.

     No new oversight process is intended here.  Existing procedures
such as mid-year reviews, periodic audits and oversight inspections as
established by each program and Region should be used.  Administering
agencies should identify strengths and weaknesses of the State and
Federal programs and develop mutual commitments to correct problems.

     EPA oversight of State performance should be consistent with
the following principles:

  a. Positive oversight findings should be stressed as well as the
     negative ones.

  b. Positive steps that can be taken to build the capability of ;
     State programs in problem areas should be emphasized.  This
     should include providing technical assistance and training —
     by EPA staff to the extent possible.

  c. EPA action to correct problems should vary, depending on the
     environmental or public health effect of the problem and whether
     it reflects a single incident or a general problem with the
     State program.

  d. The States should be given an opportunity to formally comment
     on EPA's performance.  Regions should provide information to
     the States that is available on its performance against the
     national standards, including their performance on meeting the
     "timely and appropriate" criteria, as well as their performance
     on commitments to that State.

  e. EPA should give.States sufficient opportunity to correct identified
     problems,  and take corrective action parsuant to the criteria  for
     direct  enforcement established in Section D.

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                                                                   19
       f. EPA should use the oversight process as a means of trans-
          ferring successful regional and State approaches from one
          Region or State to the other.

     2.  Process
         ^^™^^^^^^     •                                        <

          Several actions can result in the most constructive review
     of the State's programs:                                t

       a* To the extent possible, files to be audited will be identified
          in advance* with some provision for random review of a percentage
          of other files if necessary.

       b. Experienced personnel should be used to conduct the audit/
       .  review — EPA staff should be used to the extent possible
         .to build relationships and expertise.

       c. There should be an exit interview and every opportunity
          should be made to discuss findings, comment on and identify
          corrective steps based upon a review draft of the written
          report.

       d. Opportunity should be made for staffs interacting on
          enforcement cases and overseeing State performance to meet
          personally rather than rely solely upon formal communications
          — this applies to both technical and legal staffs.

     3.  Follow-Up and Consequences of Oversight

          When State performance meets or exceeds the criteria and
     measures for defining good program performance, EPA should
     reward this performance in some of the following ways:
                    i
       a. reduce the number, level or scope, and/or frequency of
          reviews or of some reporting requirements consistent with
          statutory or regulatory requirements;

       b. reduce the frequency and number of oversight inspections;
          and/or

       c. allow the program more flexibility in applying resources
          from an almost exclusive focus on national priorities
          e.g., major sources, to addressing more priorities of.
          concern to the State e.g., minor sources.

          When State performance fails to meet the criteria  for good
     State performance, EPA may take some of the following actions*
     as appropriate:

       a. suggest changes  in State procedures;

       b. suggest changes  in the State's use of resources or training of
          staff;

       c. provide technical assistance;
">,-

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d. increase the number of. oversight inspections and/or requ
   submittal of information on remedial activities;

e. provide other workable State models and practices to States
   with problems in specific areas and match State staff with
   expertise in needed area;

f.. if State enforcement action has not been ti-nely and appropriate,
   EPA may take direct enforcement action;  '         .

g. track problem categories of cases more closely;

h. grant awards could be conditioned by targeting additional
   resources to correct identified problems or reduced based
   on poor performance where such performance is not due to
'  . inadequate resources; and/or

i. consider de-delegation if there is continued poor performance.

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                                                             21


D.  CRITERIA FOR DIRECT FEDERAL ENFORCEMENT IN DELEGATED STATES


     This section addresses criteria defining circumstances under
which approved State programs might expect direct Federal enforce-
ment action and how EPA will carry out such actions so as to be
most supportive of strengthening State programs.
                                                        »
!•  When MightEPA TakeDirect Enforcement Action in Approved States?

     A clear definition of roles and responsibilities is essential
to an effective partnership, since EPA has parallel enforcement
authority under its statutes whether or not a State has an approved
or delegated program.  As a matter of policy in delegated or
approved programs, primary responsibility for action will reside
with.State or local governments with EPA taking action principally
where a State is "unwilling or unable" to take "timely and appropriate'
enforcement action.  Many States view it as a failure of their
program if EPA takes an enforcement action.  This is not the
approach or view adopted here.  There are circumstances in which
EPA may want to support the broad national interest in creating   '
an effective deterrent to noncompliance beyond what a State may
need to do to achieve compliance in an individual case or to
support its own program.

     Because States have primary responsibility and EPA clearly
does not have the resources to take action on or to review in
detail any and all violations, EPA will circumscribe its actions
to the areas listed below and address other issues concerning
State enforcement action in the context of its broader oversight
responsibilities.  The following are four types of cases EPA may
consider taking, direct enforcement action where we have parallel
legal authority*to take enforcement action:

      a. State requests EPA action
      b. State enforcement response is not timely and appropriate
      c. National precedents (legal or program)
      d. Violation of EPA order or consent decree

      In deciding whether to take direct enforcement in the above
      types of cases, EPA will consider the following factors:

      - Cases specifically designated as nationally significant
        (e.g., significant noncompliers, explicit national or
        regional priorities)
      - Significant, environmental or public health damage or
        risk involved
      - Significant economic benefit gained by violator
      - Interstate issues (multiple States or Regions)
      - Repeat patterns of violations and violators

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                 .  /        .                   •               22


How these factors are applied for the various types of cases is
discussed below.

     *-  State requests EPA action:

     The State may request EPA to take the enforcement action for
several reasons including but not limited tot  where State authority
is inadequate, interstate issues involving multiple States which
they cannot resolve by themselves, or where State resources or
expertise are inadequate, particularly to address the significant
violation/violators in the.State in a timely and appropriate
manner.  EPA should honor requests by States for support in
enforcement.  EPA will follow its priorities in meeting any such
requests for assistance, considering significance of environmental
or. public health damage or risk involved, significant economic
benefit gained by a violator, repeat patterns of violations and
violators.  Based on this general guidance, each program office
may develop more specific guidance on the types of violations on
which EPA should focus.  Regions and States are strongly encouraged
to plan in advance for any such requests for or areas needing EPA
enforcement assistance during the State/EPA Enforcement Agreements*
Process.

     b.  State Enforcement is not "Timely and Appropriate"

     the most critical determinant of whether EPA will take direct
enforcement action in an approved State is whether the State has
or will take timely and appropriate enforcement action as defined
by national program guidance and State/Regional agreements.  EPA
will defer to State action  if it is "timely and appropriate"
except in very limited circumstances:  where a State has requested
EPA action (a, above), there is a national legal or program
precedent which cannot be addressed through coordinated State/Federal
action (c, below), EPA is enforcing its own enforcement action
(d, below) or the case of a repeat violator, where the State
response is likely to prove ineffective given the pattern of
repeat violations and prior history of the State's success in
addressing past violations.

     (i)  Untimely State Enforcement Response:

     If a State action is untimely, EPA Regions must determine
after advance notification and consultation with the State whether
the State is moving expeditously to resolve the violation in an
"appropriate" manner.

     (ii)  Inappropriate State Action:

     EPA may take direct action if the State enforcement action
falls short of that agreed to in advance in the State/EPA Enforce-
ment Agreements as meeting  the requirements of a formal enforcement
response (See Section B, page 13) where a formal enforcement
response is required.  EPA may also take action if the content of
the enforcement action is  inappropriate, i.e., if remedies are

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                                                                    23


      clearly inappropriate to correct the violation,  if compliance
      schedules^.are unacceptably extended, or if there is no appropriate
     .penalty or other sanction.

           (iii)  Inappropriate Penalty or other Sanction:   .

           For types of violations identified in national program
      guidance as requiring a penalty or equivalent sanction,  EPA will
      take action to recover a penalty if a State has  not assessed a
      penalty or other appropriate sanction.  EPA generally will not
      consider taking direct enforcement action solely for recovery of
      additional penalties unless a State penalty is determined to be
      grossly deficient after considering all of the circumstances of
      the case and the national interest.  In making this determination,
      EPA will give every'consideration to the State's own penalty
      authority and any applicable State penalty policy.  EPA will
      consider whether that State's penalty bears any  reasonable relationship
      to the seriousness of the violation, the economic benefit gained
      by the violator (where applicable) and any other unique factors
      in the case.  While this policy provides the basis for deciding
     whether to take direct Federal action on the basis of an inadequate
      penalty, this issue should be discussed in more  detail during the
      agreements process to address any state-specific circumstances
     and procedures established to address generic problems in specific
     cases.   Where identified in national guidance and agreed  to
      between the Region and State, other sanctions will be acceptable
      as substitutes or mitigation of penalty amounts  in these  considerations.

           Program-specific national guidance on expectations  for State
     penalty assessments may be developed *in consultation with the
     States  and applied for determining adequacy of penalty amounts
     after being applied in practice in EPA Regions.   It is the current
     expectation of Agency managers that EPA will continue to  gain
     experience in implementing its own penalty policies before national
     programs consider such guidance.  Thus, in the near term a determination
     that a  penalty is "grossly deficient* will remain a judgment call
     made on a  case-by-case basis.

           c.   National Precedents

           This  is the smallest category of cases in which EPA  may
     take direct enforcement action in an approved State, and  will
     occur rarely in practice.  These cases'are limited to those of
     first impression in law or those fundamental to  establishing a
     basic element of the national compliance and enforcement  program.
     This is particularly important for early enforcement cases under
     a  new program or issues that affect implementation of the program
     on a national basis.   Some of these cases may most appropriately
     be managed or coordinated at the national level.   Additional
     guidance on how potential cases will be identified,  decisions
     made to proceed and involvement of States and Regions in  that
     process,  has been developed as Appendix B to this document.
e

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                                                          24
     d.  Violation of EPA order or consent decree;

     EPA places a high priority on following through on enforcement
actions until final compliance is achieved.  If EPA has taken
administrative, civil or criminal judicial enforcement i,n a
delegated or approved State, EPA will take any follow up enforcement
action on violations of those agreements or orders to preserve
the integrity of Federal enforcement actions.

2.  How Should EPA Take Action So As To Better Support Strong
    State Programs?

     Section E describes in some detail the principles and
procedures for advance notification and consultation with States.
These are imperatives for a sound working relationship.  In all
of these circumstances, where EPA may overfile a State action on
the 'basis that it is not timely and appropriate EPA should work
with the State as early as possible in the case, well before
completion of a State action which, if resulting in expeditious
compliance by the facility, would render any subsequent EPA
involvement unconstructiye, ineffective or moot.  This is parti-
cularly important since it is EPA policy that once a case has
been commenced, EPA generally will not withdraw that case in
light of subsequent or simultaneous State enforcement action.

     In particular, Regions also should identify, with their
States, particular areas in which arrangements can or should be
made, in advance, for direct EPA enforcement support where State
authorities are inadequate or compliance has been a continuing
problem.

     There are several other approaches identified here for how
EPA can take enforcement action, where it is appropriate, in a
manner which can better support States.

     To the maximum extent possible, EPA should make arrangements
with States to:

     a.  Take joint State/Federal action — particularly where a
         State is responsibly moving to correct a violation but
         lacks the necessary authorities, resources, or national
         or interstate perspective appropriate to the case.

     b.  Use State inspection or other data, and witnesses, as
         appropriate.

     c.  Involve States in creative settlements and to participate
         in case development — so that the credibility of States
         as the primary actor is perceived and realized.

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                                                                  25
            d.   Arrange for division of  penalties  with  Stateand  local
                governments?/(to the extent  they participatein Federal
                enforcement actions, and where permitted  by  law)  — to
                enhance Federal/State cooperation  in  enforcement.

            e»   Issue joint press  releasesand share  credit with  the
                State — to ensure EPA is not  in competition  wath the
                State and that  EPA action is not erroneously  perceived
                as  a  weakness or failure in the State's program.

            £.   Keep  States continually  apprised of events and  reasons
                for Federal actions —to avoid conflicting actions
                and to build a  common understanding of  goals  and
                the State and Federal perspectives.
       3.   How  Do  the  Expectations  for  "Timely  and Appropriate Action*
           Apply to  EPA in  Delegated  States?

            In  delegated States*  EPA  performs an oversight  function,
       standing ready  to take  direct  Federal enforcement  action  based
       upon the factors stated above.   In  its oversight capacity,  in
       most cases, EPA will  not obtain  real-time data.  As  indicated in
       Section  F on  State Reporting,  EPA will receive quarterly  reports
       and  will supplement  these  with more  frequent  informal communi-
       cations  on  the  status of key cases.  Therefore, we do not expect
       EPA  Regions,  through  their oversight, to be able to  take  direct
       enforcement action following the exact same timeframes as those
       that  apply  to the administering  agency.  However,  when EPA  does
       determine it  is appropriate  to take  direct Federal action,  EPA
       staff are expected to adhere to  the  same timeframes  as applicable
       to the States starting  with  the  assumption of responsibility for
       enforcement action.
      6/See Append!x C for Agency Policy on  "Division of Penalties
        with State  and Local Governments,"  issued October  30,  1985
f
                                                                        XJT

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E.  ADVANCE NOTIFICATION AND CONSULTATION
     A policy of "no surprise-" must be the centerpiece of any
effort to ensure the productive use of limited Federal and
State resources and an effective "partnership" in achieving
compliance.  This principle should be applied to all aspects of
the compliance and enforcement program covering inspections,
enforcement activities, press releases and public information,
and management data summaries upon which State* and national
performance, are assessed.                              *•

     In order to guarantee that there is ample advance notification
and consultation between the proper State and Federal officials,
EPA Regions should confer annually with each State, discuss the
following areas and devise agreements as appropriate.  The
agreements should be unique to each State and need not cover
all-areas — so long as there is a clear understanding and
dis'cussion of how each area will be addressed.

     1.  Advance Notification to Affected States off Intended EPA
         Inspections and Enforcement Actions                     .-•

         Agreements should identify:

         ~ who should be notified, e.g.
           — the head of the program if it involves potential
              Federal enforcement; and
           — who is notified of proposed/planned Federal inspections,

         - how the State will be notified, e.g.
           — the agencies share inspection lists; and
           — the agency contact receives a telephone call on a
              proposed Federal enforcement case.

         • when they will be notified — at what point(s) in
           the process, e.g.
           — when a case is being considered; and/or
           — when a case is ready to be referred, or notice
              order issued.

     Some specific provisions need to be made to address  the
     following:

     a. Advance Notification of State Attorneys  General or other
        legal staff of potential EPA enforcement actions'*/

        While EPA's primary relationship with the State is and
        should continue to be with the State agency that  has
        been delegated or been approved to administer the
        programs, EPA needs to ensure that all parties in the
/-/ In some States there are legal organizations that have direct
   enforcement authority which by-passes the State AG, e.g..
   District Attorneys, internal legal counsel, Governor's
   General Counsel.  In these instances, this guidance would
                  other

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                                                      27


State affected by a pending EPA enforcement action receive
appropriate advance notification.  In addition, when EPA
negotiates commitments each year with the State to address
specific significant violators, it is important that all
the parties affected by these commitments are aware of the
legal enforcement support and associated resources needed
to accomplish these goals.                     v

As part of the State/EPA Enforcement Agreements*process,
the Region should discuss with the State agency their
internal procedures and/or protocols for advance notification
and consultation with the State AG or other legal staff.
The State agency is responsible for assuring that the State
AG or other legal staff are properly notified and consulted
about planned Federal enforcement actions and/or enforcement
initiatives on an ongoing basis.  States are strongly
encouraged to commit advance notification and consultation
procedures/protocols reached between the State agency and
the State AG (or State legal staff, as appropriate) to
writing.  The Regions should seek to incorporate these
written protocols into the State/EPA Enforcement Agreements.

The Region should do everything possible to work through
the State agency on the issue of communicating with the
State AG or other legal staff on potential EPA enforcement
actions as well as other matters.  However, if the State
agency does not have a workable internal procedure and if
problems persist, the Region, after advance notification
and consultation with the State agency, may make arrangements
for directly communicating with the State AG or other legal
staff.

The Region and State agency should discuss how the outside
legal organizations will be consulted on the commitments the
State is making to EPA on addressing significant violators
each year.  These consultations are intended to clarify the
legal enforcement support needed to accomplish these goals.
This is particularly important for those State agencies
dependent upon the State AG or other outside legal organizations
to implement their enforcement program.

State agencies are also encouraged to notify these organi-
zations of the anticipated timing of the negotiations each
year with EPA on the Enforcement Agreements, grants, and
related documents.

Regions are encouraged to work with their State agencies to
set up a joint meeting at least annually to which all parties
are invited—the program and legal staffs of both the EPA
Region and the State agency(s), plus U.S. Attorney staff
and State AG staff—to review EPA's enforcement priorities
and recent program guidance.

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     b.  Federal  Facilities :

         Federal  facilities ma   involve  a greater or different
         need  for coordination,  particularly where  the Federal
         facilities  rec.est EPA  technical assistance or where EPA
         is  statutorily  required to  conduct inspections (e.g.,
         under RCRA).  The advance notification  and consultation
         protocols in  the State/EPA  Enforcement
                                               »  '  •   •

         Agreements  should incorporate any of the types of special
         arrangements  necessary  for  Federal facilities.  The
         protocols should also address how the State will be
         involved in the review  of Federal agency A-106 budget
         submissions.,  a-:: include plans  for a joint annual review
      .   of  patterns of compliance problems at Federal facilities
       .  in  the State.

     c.  Criminal Enforcement

         Although the  Policy Frair.ework does not  apply to the
         criminal enforcement orogram, to improve the coordination'
         with  States on criminal  investigations  and assist the
         States in their criminal enforcement efforts the Regions
         should discuss with States  any  affirmative plans for
         cross-referrals and cooperative criminal investigations.
         Such  discussions should  include the Special Agent in
        Charge ?nd  appropriate  program  staff familiar with criminal
        enforce-rent.

     In cases where other States or jurisdictions may be directly
and materially affected by the violation, i.e., environmental
or public health impacts. EPA's Regional Offices should attempt
to notify all of  the  States that are interested parties or are
affected by the  enforcement action  through the communication
channels established  by the State agreements, working through the•
appropriate Regional  Office.  This  notification process is parti-
cularly  important for hazardous waste cases in which regulatees
often operate across  State boundaries.

     Protocols for  advance notification must be established with
the understanding that each party will  respect  the other's need
for confidentiality and discretion  in regard to the information
being shared, where :^ is appropriate.  Continuing problems in
this regard will  be cause for exct;tions to the basic principle
of advance notification.

     Many of  our  statutes or regulations already specify pro-
cedures for advance notification of the State.  The State/Federal
agreements are intended to supplement these minimum requirements.

     2.  Establishment of a Consultative Process

     Advance  notification is only an essential first step and
should not be    -istrjed as the desired  end result of these

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                                                                    29
      State/Federal agreements.  The processes established should
      be consultative and should be designed to achieve the following:

               a. Inspections

               Advance notice to States through sharing of lists of
               planned Federal inspections should be designed* so
               that State and Federal agencies can properly coordinate
               the scheduling of site inspections and facilitate
               joint or multi-media inspections as appropriate.
               This should generally be done for all programs whether
               or not they are delegated* except for investigative
               inspections which would be jeopardized.by this process.

        .-  •     b. Enforcement Actions

         *      Federal and State officials must be able to keep one
               another current on the status of enforcement actions
               against noncomplying facilities.  Regularly scheduled
               meetings or conference calls at which active and
               proposed cases and inspections are discussed may
               achieve these purposes.

           3.  Sharing Complianceand Enforcement Information

           The Region and State should discuss the need for a process
      to share, as much as practicable, inspection results* monitoring
      reports* evidence* including testimony, where applicable for
      Federal and/or State enforcement proceedings.  The Regions
      should also establish mechanisms for sharing with the States
      copies of reports generated with data submitted by the Regions
      and States* including comparative data — other States in the
      Region and across Regions.

           *•  Dispute Resolution

           The Region and State should agree in advance on a process
      for resolving disputes* especially differences in interpretation
      of regulations or program goals as they may affect resolution of
      individual instances of noncompliance.  As stated in the policy
      on Performance-Based Assistance* the purpose in laying out a
      process by which issues can be surfaced quickly up the chain of
      command in both the Regions and States is to ensure that
      significant problems receive the prompt attention of managers
      capable of solving these problems expeditiously.

           5.  Publicizing Enforcement Activities

           EPA has made commitments to account publicly for its
      compliance and enforcement programs.  It is EPA's policy to
      publicize all judicial enforcement actions and significant
      administrative actions to both encourage compliance and serv*
      as a deterrent to noncompliance.
,~~- , , •*••*

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                                                              30
     While State philosophies on these matters may vary, the
Region and State should discuss opportunities for joint press
releases on enforcement actions and public accounting of both
State and Federal accomplishments in compliance and enforcement.

     Discussions should address how and when this coordination
would take place.  Regions should consult with the State on any
enforcement related EPA press release or other-media event
which affects the State.  To the extent possible/the State
should be given an opportunity to join in the press release or
press conference if it has been involved in the underlying
enforcement action.  Further, EPA generated press releases and
public information reports should acknowledge and give credit
to relevant State actions and accomplishments when appropriate.

    . 6.  Publicly Reported Performance Data

     Regions should discuss with States mechanisms for ensuring
the accuracy of data used to generate monthly, quarterly and/or
annual reports on the status of State and Federal compliance
and enforcement activities.  Opportunities should be provided
to verify the accuracy of the data with the States prior to
transmittal to headquarters.  Time constraints may be a real
limitation on what can be accomplished* but it is important to
establish appropriate checks and control points if we are to
provide an accurate reflection of our mutual accomplishments.
If there are no data accuracy concerns, these mechanisms may
not be needed.

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  APPENDIX A:  ANNUAL PRIORITIES AND PROGRAM GUIDANCES
     Annual Priorities for Implementing Agreements
FY 1985:  Given the enormity of the task in the first year,
          3 priorities were established:          4

          0 defining expectations for timely and appropriate
            enforcement action;
          0 establishing protocols for advance notification
            and consultation; and
          ° reporting State data.

FY 1986;  Building on the FY 1985 process, three areas were
          emphasized:

          • expanding the scope of the agreements process to
            cover all delegable programs;
          0 adapting national guidance to State-specific
            circumstances; and
          0 ensuring a constructive process for reaching
            agreement.

FY 1987:  Continuing to refine the approaches and working
          relationships with the States* three areas are
          to be emphasized:

          * improving the implementation and monitoring of
            timely and appropriate enforcement response with
            particular emphasis on improving the use of
            penalty authorities;

          * improving the involvement of State.Attorneys
          •  General (or other appropriate legal staff) in
            the agreements process; and

          • implementing the revised Federal Facilities
            Compliance Strategy.
                                                               .' ".•>.


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                              -3-

     4)  Fpr eonteapt actiona, the atate or local government
         mitt have participated in tht undtrlying action
         giving riae to the conttmpt action, b«*n a aignatory
         to the undtrlying consent decree, participated
         in the contempt action by filing pleadings averting
         claims for penaltiea, and baan activaly involved
         in both litigating tha caaa and any negotiation?
         connactad with that proceeding.!/

     Tha panaltiaa ahould ba dividad in a propoaad conaant
dacraa baaad on tha laval of participation and tha P*"
aaaeeament authority of tha atata or locality.  *•"•"
nay ba accompliahad niora raadily if apacific taaka ara
to particular antitiaa during tha couraa of tha litigation.
But in all avanta, tha diviaion ahould raflact a fair apportion
nant baaad on tha tachnical and iagal contributiona of tha
participanta, within tha lin-ita of aach P«*icipant'a «t*tutory
antitlawant to panaltiaa.  Panalty diviaion ahould not taka
placa until tha and of aattlamant nagotiation.  Tha aubjact
of oanalty diviaion ia a wattar for diacuaaion among tha
governmental plaintiffa.  It  ia inappropriate for tha defendant
to participate in auch diacuaaiona.

ces  F. Henry Habicht II, Assiatant Attorney General
     Land and Natural Resources Diviaion
 I/ If  the consent decree contains stipulated penalties and
 specifies ho- they are to be divided,  the government will
 abide  by those terns.

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       EPA POLICY ON IMPLEMENTING NATIONALLY MANAGED OR
               COORDINATED ENFORCEMENT ACTIONS
     This policy addresses how EPA will handle the small
subset of federal civil enforcement cases, both administrative
  id judicial, which are managed or coordinated at the EPA
Headquarters level.  The policy was developed to ensure, these
actions are identified, developed and concluded consistent
with the principles set forth in the Policy Framework for
State/EPA Enforcement "Agreements."  It covers the criteria
and process for deciding what cases might best be managed or
coordinated nationally; the roles and relationships of EPA
Headquarters and. regional offices and the States; and protocols
for active and early consultation with the involved States
and Regions.

A.  Criteria for Nationally Managed or Coordinated Enforcement
    Cases

     Most enforcement cases are handled at the state, local
or EPA regional level for reasons of efficiency and effectiveness
and because of the primary role that States and local governments
have in enforcement under most of the major environmental
statutes.  The Policy Framework identifies several instances
in which direct enforcement actions may be taken by EPA, which
in most instances will be handled by EPA Regions pursuant to
the State/EPA Enforcement "Agreements."  However, some of
those cases may most appropriately be managed or coordinated
at the national level by EPA Headquarters.

     In addition to instances in which an EPA Region requests
Headquarters assistance or lead in an enforcement case, these
"national" cases will usually arise within the context of
three of the criteria for direct EPA action mentioned in the
Policy Framework:
     —  National Precedent (legal or program precedent ):
         degree to which the case is one of first impression
         in law or the decision is fundamental to establishing
         a basic element of the national compliance and
         enforcement program.  This is particularly important
         for early enforcement cases under a new program or
         issues that affect implementation of the program on
         a national basis.

     —  Repeat Patterns of Violations and Violators: the
         degree to which there are significant patterns of
         repeat violations at a given facility or type of
         source or patterns of violations within multi-facility
         regulated entities.  The latter is of particular
         concern where the non compliance is a matter of national
         (e.g., corporate) policy or the lack of sound environ-
         mental management policies and practices at a national
•Issued b\' the A«s«i^f.ant Administrator for th« Office of
                                                               2(41

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                            - 2 -
         level which can best be remedied through settlement
         provisions which affect such national policies and
         practices.

     —  Interstate Issues (multiple States or Regions): the
         degree to which a case may cross regional or state
         boundaries and requires a consistent approach.
         This is particularly important where there may*be a
         potential for interregional transfers of pollution
         problems and the case will present such issues'when
         EPA Regions or States are defining enforcement remedies.

     EPA's response to any of these circumstances can range
from increased headquarters oversight and legal or technical
assistance, to close coordination of State and Regional
enforcement actions, to direct management of the case by
Headquarters.

     There are essentially two types of "National" cases.  A
nationally managed case is one in which EPA Headquarters has
the responsibility for the legal and/or technical development
and management of the case(s) from the time the determination
is made that the case(s) should be nationally managed in
accordance with the criteria and process set forth in this
policy.  A nationally coordinated case(s) is one which preserves
responsibility for lead legal and technical development and
management of the cases within the respective EPA regions
and/or state or local governments.  This is subject, however,
to the oversight, coordination and management by a lead
Headquarters attorney and/or program staff on issues of
national or programmatic scope to ensure that all of the
cases within the scope of the nationally coordinated case are
resolved to achieve the same or compatible results in furtherance
of EPA's national program and enforcement goals.

     Section C below describes more fully the roles and
relationships of EPA headquarters, regional, and state
personnel, both legal and technical, in either nationally
managed or nationally coordinated cases.

     There are several factors to apply to assess whether, in
addition to the normal Headquarters oversight, a case should
be handled ass  (1) nationally managed; or (2) nationally
coordinated.  None of these factors may necessarily be sufficient
in themselves but should be viewed as a whole.  These factors
will include:

     —  availability or most efficient use of State or EPA
         Regional or Headquarters resources.

         ability of the agency to affect the outcome through
         alternative means.  One example is issuance of
         timely policy guidance which would enable the States,
         local governments or EPA Regions to establish the
         appropriate precedent through independent action.

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C.2MM
                            OCT30B65
                                                           IMOtCIMt v-
 MEMORANDUM
SUBJECT!

FROM:.



TOs
           Division of Penalties vlth State end  Ical Governments
           Courtney M.  Price  Cl^™—.	--^
           Assistant Administrator  for Enforcement
             *n.d Compliance Monitoring

           Regional Administrators
           Associate Enforcement  Counsels
           Program  Enforcement Division Directors
           Regional Counsels
     This memorandum provides guidance to Agency enforcement
attorneys on  the division of civil- penalties with state and
local governments* when  appropriate.  In his 'Policy Framework
for  State/EPA Enforcement Agreements" of June 26* 1984, Deputy
Administrator Al Aim stated that the EPA should arrange for
penalties to  accrue to states where permitted by law.  This
statement generated a number of inquiries from states and from
the  Regions.   Both the states and the Regions were particularly
interested in what factors EPA would consider in dividing
penalties with state and local governments*  In addition, the
issue was raised in two  recent cases* U.S. v Jones t Lauqhlin
(N.D. Ohio) and U»S. v Georgia Pacific Corporation (M.D. La.).
In each case,  a state or local governmental entity requested a
significant portion of the involved penalty.  Consequently, OECM
and DOJ jointly concluded that this policy was needed.

     EPA generally encourages state and local participation in
federal environmental enforcement actions.  State and local
entities nay  share in civil penalties that reault from their
participation, to the extent that penalty division is permitted
by federal, state and local law, and is appropriate under the
circumstances  of the individual case.  Penalty division advances
federal enforcement goals by:

     1)  encouraging states to develop and maintain active
         enforcement programs, and

     2)  enhancing federal/state cooperation in environmental
         enforcement.

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Rovever, penalty division should be approached cautiously because
of certain inherent concerns, includingi

     1)  Increased complexity in negotiations among the
         various parties* and the accompanying potential
         .for federal/state disagreement over penalty
         division* and

     2)  compliance with the Miscellaneous Receipts Act, 31
         O.S.C. §3302, which requires that funds properly
         payable to the United States must be paid to the B.s.
         Treasury.  Thus any agreement on the division of
         penalties must be completed prior to issuance of and
         incorporated into a consent decree.
+

     As in any other court-ordered assessment of penalties under
the statutes administered by CPA, advance coordination and
approval of penalty divisions with the Department of Justice is
required.  Similarly, the Department of Justice will not agree /
to any penalty divisions without my advance concurrence or that
of my designee.  Zn accordance with current Agency policy,
advance copies of all consent decrees, including those involv-
ing penalty divisions, should be forwarded to the appropriate
Associate Enforcement Counsel for review prior to Commencement
of negotiations.

     The following factors should be considered in deciding if
penalty division is appropriate:
             *                 •
     1}  The state or local government must have an indepen-
         dent claim under federal or state law that supports
         its entitlement to civil penalties.  If the entire
         basis of the litigation is the federal enforcement
         action, then .the entire penalty would be due to the
         federal government.

     2}  The state or local government must have the authority
       .  to seek civil penalties.  If a state or local govern-
         ment is authorized to seek only limited civil
         penalties, it is ineligible to share in penalties
         beyond its statutory limit.

     3)  The state or local government must have partici-
         pated actively in prosecuting the case.  For example,
         the state or local government must have filed com-
         plaints and pleadings, asserted claims for penalties
         and been actively involved in both litigating the
         case and any negotiations that took place pursuant
         to.the enforcement action.

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      —  favorable  venue  considerations.

      —  environmental  results  which  could  be achieved through
          discrete versus  concerted and  coordinated action,
          such  as potential  for  affecting overall corporate
          environmental  practices.                      '

      —  location of government legal and technical expertise
          at EPA Headquarters or in the  Regions> recognizing
          that  expertise frequently can  be tapped and arrange-
          ments made to  make expertise available where needed.

      To the extent possible* where cases warrant close national
attention* EPA Headquarters will coordinate rather than
directly  manage the. case  on a national  basis thereby enabling
Regions and States to better1 reflect  facility-specific enforcement
considerations.

B.  Process for Identifying Nationally-Managed or Coordinated
    Cases -- Roles and  Responsibilities
                                                                  .•
      EPA  recognizes the importance of anticipating the need
for nationally managed  or coordinated cases to help strengthen
our national enforcement  presence; and  of widely sharing
information both on patterns of violations and violators and
on legal  and program precedent  with EPA Regions and States.'
To do this:

     Headquarters program offices, in cooperation with the
     Office of Enforcement  and  Compliance Monitoring should
     use  the Agency's strategic planning process to help
      identify  upcoming  enforcement cases of national precedence
     and  importance.  They  also should  develop and disseminate
     to Regions information on  anticipated or likely patterns
     or sources of violations for specific industries and
     types of  facilities.

     Regional  offices are responsible for raising to Head-
     quarters  situations  which pose significant legal or
     program precedent  or those  in which patterns of violations
     are occurring or which are likely  to be generic industry-
     wide or company-wide which would make national case
     management or coordination particularly effective.

     State and local officials are encouraged to raise to EPA
     Regional  Offices situations identified above which would
     make national case management or coordination particularly
     effective.

     Whether a case will  be managed or coordinated at the
national  level will be decided by the Assistant Administrator
for Enforcement and Compliance Monitoring after full consul-
tation with the affected  program Assistant Administrators,
Regional Administrators and state or  local governments in
what is intended to be a  consensus building process.  There
will be a full discussion a-nong all of  the parties of all oC
                                                                '/'

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the ramifications for the program and a review of all of the
important criteria involved in the decision.  In the event of
a lack of consensus as to whether the case should be managed
or coordinated at the national level, the AA for OECM shall
make the determination* with an opportunity for. a hearing
and timely appeal to the Administrator or Deputy Admini-
strator by the Regional or other EPA Assistant Administrator.

     The Regions will be responsible for communicating with
any affected States using mechanisms established in the State/
EPA Enforcement "Agreements," to raise the possibility of
national case management or coordination and to ensure that
timely information on the status of any independent state,
local or regional enforcement actions can and would be factored
into-the decisions regarding:  (1) whether to manage the case
nationally; (2) whether to coordinate the case nationally; (3)
what legal and technical assistance might be provided in a State
lead case; and (4) what facilities to include in the action.

C.  Case Development — Roles and Responsibilities

     Nationally managed cases are those that are managed out
of EPA Headquarters with a lead headquarters enforcement
attorney and a designated lead headquarters program contact.
Notwithstanding headquarters lead, in most instances, timely
and responsive Regional office legal and technical support
and assistance is expected in developing and managing the
case.  In these instances, the Regions will receive credit
for a case referral (on a facility basis) for this effort.
The decision on the extent of Regional office involvement
and case referral credit will be made at the time of decision
that the case should be nationally managed.  Regions which
play a significant role in the development and/or prosecution
of a case will be involved in the decision-making process in
any case settlement proceedings and the Regional Administrator
will have the opportunity to formally concur in any settlement.

     Nationally coordinated cases are those that are coordi-
nated out of EPA Headquarters with lead regional and/or state
or local attorneys and associated program office staff.  The
headquarters attorney assigned to the case(s) and designated
headquarters program office contact have clear responsibility
for ensuring national issues involved in the case which
require national coordination are clearly identified and
developed and in coordinating the facility-specific actions
of the regional offices to ensure that the remedies and
policies applied are consistent.  This goes beyond the normal
headquarters oversight role.  The headquarters officials have
both a facilitator role in coordinating information exchange
and a policy role in influencing the outcome for the identified
issues of national concern.

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                             -  5  -
     Whether a case  is nationally managed or nationally
 coordinated, as a general rule  if EPA is managing a case,
 States will be invited to participate fully in case develop-
 ment and to formally  join in the proceedings if they so
 desire by attending meetings and planning sessions.  States
 will be consulted on  settlement decisions but will be asked
 to formally concur in the settlement only if they are parties
 to the litigation.                                     i

     On a case-by-case basis, the National Enforcement and
 Investigations Center (NEIC) may be asked to play a role in
 either type of national case to coordinate evidence gathering,
 provide needed consistency in technical case development
 and policy, witnesses and chain of custody, and/or to monitor
 consent decree compliance.
  %
 D. /'Press Releases and Major Communications

     A communications plan should be developed at an early
 stage in the process.  This should ensure that all of the
 participating parties have an opportunity to communicate
 their role in the case and its outcome.  Most important, the
 communications plan should ensure that the essential message
 from the case, e.g.,  the anticipated precedents, gets sufficient
public attention to serve as a deterrent for potential future
 violations.

     All regional and state co-plaintiffs will be able to
 issue their own regional, state-specific or joint press
 releases regarding the case.  However, the timing of ttiose
 releases should be coordinated so that they are released
simultaneously, if possible.

     It is particularly important that the agencies get
maximum benefit front  the deterrent effect of these significant
national cases through such mechanisms as:

     —  more detailed press releases to trade publications
         i.e., with background information and questions and
         answers
     —  development  of articles
     —  interviews with press for development of more in-
         depth reporting
     —  press conferences
     —  meetings with public/environmental groups -- including
         meetings on  the settlement of national cases which
         have generated intense local or national interest
         speeches before industry groups about actions
     —  communications with congressional committees

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VI. SPECIALIZED ENFORCEMENT TOPICS




    I. PROVIDING ENFORCEMENT INFORMATION TO OUTSIDE PARTIES

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                                                          VI.1.1,
"Policy Against No Action Assurances", dated November 16, 1984.
See GM-34.*'

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                                                          VI.I.2,
"Enforcement Document Release Guideline",  dated September 16,
1985.   GM-43.*

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                                                                 VI.I.3,
"Policy on Publicizing Enforcement Activities", dated November 21, 1985.
Modified by 1.5, below.

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460


                              NOV 2 1 1935
MEMORANDUM

SUBJECTi

FROM:
Policy on Publicizing Enforcement

Courtney M. Price  ^^
Assistant Administrator for Enforcement
  and Compliance Monitoring

Jennifer Joy Manso
Assistant Adminis
TO:       Assistant Admi
          General Counse
          Inspector General
          Regional Administrators
          Office of Public Affairs
          (Headquarters and Regions I-X)
          Regional Counsel  (I-X)
     Attached is the EPA Policy on Publicizing Enforcement
Activities, a joint project of the Office of Enforcement and
Compliance Monitoring and the Office of Public Affairs.  The
document establishes EPA policy on informing the public about
Agency enforcement activities.  The goal of the policy is to
improve communication with the public.and the regulated community
regarding the Agency's enforcement program, and to encourage
compliance with environmental laws through consistent public
outreach among headquarters and regional offices.

     To implement this policy, national program managers and
public affairs directors should review the policy for the purpose
of preparing program-specific procedures where appropriate.
Further, program managers should consider reviewing the implemen-
tation of this policy in EPA Regional Offices during their regional
program reviews.  These follow-up measures should ensure that
publicity of enforcement activities will constitute a key element
of the Agency's program to deter environmental noncompliance.
Attachment

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          EPA POLICY ON PUBLICIZING ENFORCEMENT ACTIVITIES


 I.   PURPOSE

      This memorandum establishes EPA policy on informing the
 public about Agency enforcement activities.   This  policy is
 intended to improve EPA communication with the public  and  the
 regulated community regarding the goals  and activities of  the
 Agency's enforcement program.  Appropriate'publication of  EPA
 enforcement efforts will both encourage  compliance and serve as
 a deterrent to noncompliance.  The policy provides for consistent
 public outreach among headquarters and regional offices.

 II.   STATEMENT OF POLICY

      It is the policy of EPA to use the  publicity  of enforcement
 activities as a key element of the Agency's  program to deter
 noncompliance with environmental laws and regulations.  Publicizing
 Agency enforcement activities on an active and timely  basis informs
 both the public and the regulated community  about  EPA's efforts
 to promote compliance.

      Press releases should  be issued for judicial  and  administrative
 enforcement actions,  including settlements and successful  rulings,
 and  other significant enforcement program activities.   Furrier,
 the  Agency should consider  employing a range of methods of* A
 publicity such as press conferences and  informal press  briefings,
 articles,  prepared statements,  interviews and appearances  at
 seminars by knowledgeable and authorized representatives of the
 Agency to inform the  public of these activities.   EPA will work
 closely with the states in  developing publicity on joint enforcement
 activities and in supporting state enforcement efforts.

 III.  IMPLEMENTATION OF  POLICY
                                                         v'
      A.   When to Use  Press  Releases I/

          1.   Individual Cases

      It  is EPA policy to issue press  releases when the  Agency:
 (1)  files a judicial  action or issues a  major administrative
 order  or complaint (including a notice of proposed contractor
 listing  and the administrative decision  to list);  (2)  enters
 into  a major judicial or administrative  consent decree  or  files
 a motion to enforce such a  decree;  or (3)  receives a successful
 court  ruling.   In determining whether to issue a press  release,
ly The term "press release" includes the traditional Agency press
"release, press advisories, notes to correspondents and press
statements.  The decision on what method should be used in a given
situation must be coordinated with tha appropriate public affairs
office(s).

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EPA personnel will consider:   (1) the amount of the proposed
or assessed penalty  (e.g., greater than $25,000);  (2) the signi
of the relief sought or required in the case, and  its public
health or environmental impact; (3) whether the case would
create national or program precedence; and  (4) whether unique
relief is sought.  However, even enforcement actions- that do not
meet these criteria may be appropriate for -local publicity in
the area where the violative conduct occurred.  Where appropriate,
a single press release may be  issued which covers  a group or
category of similar violations.

     Where possible, press releases should mention the environmental
result desired or achieved by  EPA's action.  For example, where
EPA determines that a particular enforcement action resulted (or
will result) in an improvement in a stream's water quality, the
press release should note such results.  In addition, press
releases must include the penalty agreed to in settlement or
ordered by a court.

     Press releases can also be used to build better relationships
with the states, the regulated community, and environmental groups.
To this end, EPA should acknowledge efforts by outside groups to
foster compliance.  For example, where a group supports EPA
enforcement efforts by helping to expedite the cleanup of £l  \
Superfund site, EPA may express its support for such initiatives
by issuing a press release, issuing a statement jointly with the
group, or conducting a joint press conference.

         2.  Major Policies

    In addition to publicizing individual enforcement cases,  EPA
should publicize major enforcement policy statements and other
enforcement program activities since knowledge of Agency policies
by the regulated community can deter future violations.  Such
publicity may include the use of articles and other prepared
statements on enforcement subjects of current interest.

         3.  Program Performance

     Headquarters and regional offices should consider issuing
quarterly and annual reports on Agency enforcement efforts.
Such summaries present an overview of the Agency's and Regions'
enforcement activities; they will allow the public to view
EPA's enforcement program over time, and thus give perspective
to our overall enforcement efforts.  The summaries should cover
trends and developments in Agency enforcement activities, and
may include lists of enforcement actions filed under each statute.
The Office of Enforcement and Compliance Monitoring's (OECM)
Office of Compliance Analysis and Program Operations, and the
Offices of Regional Counsel will assist the Public Affairs Offices
in this data gathering.  Public Affairs Offices can also rely on
the figures contained in the Strategic Planning Management System.

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                                -3-

          4.   Press Releases and SettlementAgreements

      EPA has,  on occasion,  agreed not  to issue  a  press  release
 as part of a settlement agreement.  EPA should  no longer  agree
 to a settlement which bars  a press release  or which  restricts
 the content of a press release.  On January 30, 1985,. the Deputy
 Administrator issued an abbreviated press release policy,  which
 stated in pertinent part that:   "It is against  EPA policy to
 negotiate the agency's option to issue press releases,  or the
 substance of press releases,  with parties outside of EPA,
 particularly those parties  involved in settlements,  consent
 decrees or the regulatory process." This policy  will help to
 ensure consistency in the preparation  of press  releases and
 equitable treatment of alleged  violators.

      B.   Approval of Press  Releases

      EPA must ensure that press releases and other, publicity
 receive high priority in all  reviewing offices.   By  memorandum
 dated August 23,  1984,  the  Office of External Affairs directed
 program offices to review and comment  on all press releases
 within two days after the Office of Public  Affairs submits its
 draft to the program office;  otherwise concurrence is assumed.
 This review  policy extends  to OECM and the  Offices of Regional
 Counsel  for  enforcement-related press  releases.
                  ^                     '              •     ,k
      C.   Coordination                             '        •  \

          1.   Enforcement, Program,  andPublic Affairs Offices     t

      More active  use of publicity requires-improved  coordination
 among regional  and headquarters  enforcement attorneys,   program
 offices  and  public affairs  offices.  The-lead office in an
 enforcement  case,  generally the  regional program  office in an
 administrative  action and the Office of Regional  Counsel  or OECM
 in  a judicial action,  should  notify the appropriate Public Affairs
 Office at the earliest  possible  time to discuss .overall strategy
 for  communicating  the Agency's  action  (e.g., prior notice  to
 state or  local  officials) and the  the  timing of a press release.
 The  lead  office should  stay in  close contact with Public Affairs
 as the matter approaches  fruition.

          2.  Regional and Headquarters  Offices of Public Affairs

      Regional and  headquarters  public  Affairs Offices should
 coordinate in developing press  releases both for  regionally-base:!
 actions that have  national  implications  and for nationally managed
 or coordinated enforcement  actions.  Whenever possible,  both
 regional  and headquarters offices  should send copies of draft
press releases to  their  counterparts for review and comment.
Both such offices  should  also send  copies of final releases to
 their counterparts.
                                                               \(C\

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                               -4-
         3.  EPA and DOJ
     EPA can further improve the timeliness and effectiveness
of its press releases regarding judicial actions by coordinating'
with DOJ's Office of Public Affairs.  When an EPA Office of
Public Affairs decides that a press release in a judicial enforce-
ment case is appropriate, it should notify DOJ or the appropriate
U.S. Attorney's Office to ensure timeliness-and consistency in
preparation of press releases.  DOJ has been requested to notify
OECM when DOJ intends to issue a release on an EPA-related case.
EPA's Office of Public Affairs will immediately review such
draft releases, and, if necessary to present the Agency's position
or additional information, will prepare an Agency release.

         4.  EPA and the States

     Another important goal of this policy is to encourage
cooperative enforcement publicity initiatives with the states.
The June 26, 1984,  "EPA Policy on Implementing the State/Federal
Partnership in Enforcement:  State/Federal Enforcement 'Agree-
ments,'" describes key subjects that EPA should 'discuss with
the states in forming state-EPA Enforcement Agreements.  The
section on "Press Releases and Public Information," states that
the ".Region and State should discuss opportunities for joint
press releases on enforcement actions and public accounting of
both State and Federal accomplishments in compliance and ei&o^ce-
ment."  Further, as discussed in the subsequent January 4, 1985,
Agency guidance on  "Implementing Nationally Managed or Coordinated
Enforcement Actions," the timing of state and EPA releases
"should be coordinate.d so that they are released simultaneously.

     Accordingly, EPA Public Affairs Offices should consult
with the relevant state agency on an EPA* press release or
other media event which affects the State.  EPA could offer
the State the option of joining in a press release or a press
conference where the State has been involved in the underlying
enforcement action.  Further, EPA-generated press releases and
public information reports should acknowledge and give credit
to relevant state actions and accomplishments when appropriate.

     Finally, it is requested that EPA Public Affairs Offices
send the State a copy of the EPA press release on any enforcement
activity arising in that state.

     D.  Distribution of Press Releases

     The .distribution of EPA press releases is as important as
their timeliness.  Press releases may be distributed to the local,
national, and trade press, and local and network television
stations.

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          1.   Local  and  National  Media

      EPA  must "direct"  its  press  releases  to ensure that the
 appropriate  geographical  areas learn about EPA enforcement
 activities.   To  accomplish  this  goal,  the  appropriate Public
 Affairs Office should send  a press  release.to the media and
 interest  groups  in  the  affected  area,  i.e., the  local newspaper
 and  other local  publications, television and radio stations, and
 citizen groups.   The headquarters Public Affairs Office, in con-
 junction  with the appropriate regional  office, will issue press
 releases  to  the  national  press and  major television networks
 where  an  EPA enforcement  activity has  national implications.

          2.   Targeted Trade Press and  Mailing Lists

      The  Agency  must also disseminate  information about enforce-
 ment  activities  to  affected industries.  Sending a press release
 to relevant  trade publications and  newsletters, particularly for
 a significant case, will  put other  potential violators on
 notice that  EPA  is  enforcing against specific conduct in the  .
 industry.  It is  also useful to  follow  up  such press releases
 with  speeches to industry groups and articles in relevant trade
 publications,  reinforcing the Agency's  commitment to compliance.
                                                           *  \
      To ensure the  appropriate distribution of publicity, we are
 requesting each  of  the  regional  Public  Affairs Offices, in coopera-
 tion  with the Regional  Counsels and regional program offices, to
 establish  or  review and update their mailing lists of print media,
 radio  and television stations, state and local officials, trade
 publications,  and business and industry groups for each of the
 enforcement programs conducted in the Regions.

     E.   Use  of  Publicity Other Than Press Releases

     EPA  headquarters and regional  offices have generally relied
 on press  releases to disseminate information on enforcement
 activities.   Other  types  of enforcement publicity are also
 appropriate  in certain  instances.

          1.   Press Conferences and  Informal Press Briefings

     Press conferences  can be a useful  device for highlighting
 an enforcement activity and responding  to public concerns in a
 specific area.   Regional  Administrators should consider using
press  conferences to announce major enforcement actions and to
elaborate on  important simultaneously  issued press releases.
 Press  conferences should  also be considered where an existing or
potential public  hazard is involved.  The  regional Public Affairs
Office should always inform the headquarters Public Affairs

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                               -6-

Office when it decides to hold a press conference to provide an
opportunity for the Administrator's advance knowledge and involve-
ment if necessary.

         2.  Informal Meetings_withL Constituent Groups

     To further supplement EPA efforts to inform the public and
regulated community, regional offices should meet often with
constituent groups (states, environmental groups/industry, and
the press') to brief these groups on recent enforcement developments.
These meetings can be organized by the Public Affairs Offices.
By informing the public, EPA increases public interest in its
enforcement program and thereby encourages compliance.

          3.  Responding to Inaccurate Statements

     EPA should selectively respond to incorrect statements made
about EPA enforcement activities.  For example, EPA may want to
respond to an editorial or other article which inaccurately
characterizes EPA enforcement at a Superfund site with a "letter
to the editor."  Where an agency response is deemed to be
appropriate, it should promptly follow the inaccurate statement.

         4.  Articles and Prepared Statements

     EPA's Public Affairs Offices and the Office of EnforcejneX^
and Compliance Monitoring occasionally prepare articles on various
aspects of the Agency1s enforcement program.  For example. Region I
issues a biweekly column to several newspapers in the Region
covering timely enforcement issues such as asbestos in schools.
We encourage all regional and headquarters offices to prepare
feature articles on enforcement issues.  When the regional office
is developing an article on a subject wi'th national implications,
it should contact the headquarters Office of Public Affairs to
obtain a possible quote from the Administrator and to discuss.
whether the artic3e should be expanded to a national perspective.
Likewise, appropriate regions should be consulted in the preparation
of headquarters articles or statements which refer to actions of or
facilities in particular regions.

         5.  Interviews

     In some cases, headquarters and regional Public Affairs
Offices should consider arranging media interviews with *:he
Regional Administrator, Deputy Administrator, the Administrator,
or other EPA officials.  Such an interview will reflect the
Agency's position on a particular enforcement activity or
explain EPA's response to an enforcement problem.

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                                                                    VI.I.4.
I
"Memorandum to General Counsels" (Concerning FOI requests pertaining to
subjects involved in ongoing or anticipated litigation), dated March 27,
1986.
                                                                      21(05'

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                                     e 01 me Associate Aitomey
                                     March .27,
                                                1986
                  MSMORAMS'JM TO GEN£?.AL COUNSELS


    It is becoming increasingly obvious that the ability of the
Department of Justice effectively to represent the interests of
the various agencies of the Executive Branch is being severely
j.jr.saired by jifficulties in coordinating obligations under the
Freedom of Information Act  ("FOIA") with litigation activi-  .
ties.  This problem  is particularly serious for the United
States Attorneys' offices and,  if allowed to continue unchecked,
will  almost certainly  result  in the loss of litigation  that may
be  cf significant importance  to your agency.

    FOIA,  of  course,  is generally available to  any person.
seeking  government documents.   FOIA  requestors  often  do not
identify the  parties or the special  interests  they  represent,

and
*w-.i»»__j	 .                     «._^	 _,
and almcst never indicate whetlTeT the requeszea cocuments will
be used to support ongoing or contemplated litigation against
the United States.  Compounding the problem, FOIA personnel
frequently are not fully aware of the full extent of the
governmental interests implicated by a FOIA request.  In
particular, FOIA personnel often do not know of actual or
impending litigation  involving the subject matter of the
requested documents.
    Typically,  each  agency has a disclosure system  designed  to
meet  the needs  and demands upon  the  agency  in  view  of  its
substantive* programs.  Lack  cf coordination between these
personnel  and  the persons with knowledge  that  documents  relate
to pending  or  potential  litigation  severely  impairs the  ability
of the attorneys  responsible for  litigation effectively  to
represent  the  interests  of  the united States.   Accordingly,  I ar.
requesting thai all  agencies establish procedures which  will"

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                               - 2 -
 identify FOIA requests vhieh pertain to au'bSgg*« involved ;n
 ongoing oc anticipated litigation.

     If a FOIA request involves matters pertaining to ongoing
 litigation, it is essential that both the acency and the'
 Department o'f Justice attorneys assigned to the litigation be
 informed of the request to ensure coordination of the.
 government's position in the litigation with any release of
 documents under the FOIA.  If no litigation is pendjng, but
 can be reasonably anticipated in the future, the FOIA request
 should be carefully reviewed by an acency attorney in light of
 that likelihood.   In all instances where litigation*is a
 possibility, acencies should maintain regards fl  This will assist the FOIA personnel in.
 identify ing.-p'Qfe'ntiTITy exe-ot documents..  Discretionary
 disclosures snouid be coordinated with the liticating attorney
 rather than relying solely on the existing FOIA*release
 procedures.  This will permit the attorney to protect the
 interests of the  agency implicated in the litigation itself.

     The general nature of the guidance set forth above meshes
 well with nsany agencies' present practices.  However, because
 the persons responsible for disclosure sometimes are unaware of
 litigative concerns, I ask that you ensure that persons
 responsible for maintenance of documents subject toTTOTA
 request notify disclosure personal wher.evar thar* is an
 indication tnat request?* **<•'*****« *** ^r *ay fa* pertinent Mfo
 pending-or potential litigation.  In other words, the ^ocumenV^
Jcu_stAdia-nrshould  be told that it is his or her duty to infora —
 /the FOIA. personnel of any pending or potential litigation
 {pertaining to documents which are the subject of a FOIA request.
                   .                             t         m
     To surraarize, I request that:

     8    Eachl document ^'us_Lg.d-^an'' be required to notify any
          person within the agency interested in the
          documents of any potential or pending litigation on
          the subject to which the documents pertain;

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                              - 3 -
         Litigating attorneys (including Department of Justice
         attorneys) always be contacted when a FOIA
         request seeks documents pertaining to ongoing
         litigation;                          •          .
         All discretionary disclosures relating
         litigation be closely coordinated with
         attorneys;
                                                to matters in
                                                the litigating
    9    A record be maintained so that the litigating attorneys
         will know which documents have been released;

    9    Documents be marked as attorney work product when it is
         correct and feasible to do so;

    •    FOIA personnel be made sensitive to the potential
        • litigative interests of the government;

    *    Litigating attorneys routinely check with the agency's
         FOIA personnel in every litigation matter to determine
         whether any relevant documents have been the subject of
         a FOIA request.

    I would appreciate your ccr.r.ents and s^cgsstions on the
proposals outlined above to enhance our ability to defend
significant suits affecting each government agency.  In
addition, I sucgest that you direct the persons responsible for
FOIA matters within your agency to provide a report to you on
the actions taken to implement these proposals.  I would greatly
appreciate it if you would send a copy of that report to Mr.
David J. Anderson, Branch Director, Federal Programs Branch,
Room 3543, plus any other periodic reports you may request to
ensure that"the concerns expressed in this letter, which I am
sure you share, are not forgotten when personnel changes occur'
or over the course of time.

                                  of
    X firmly believe that these proposals,
significantly enhance the ability
to protect your agency's interest
your cooperation in this matter,
                                its
if implemented, will
    raent of Justice
        Thank you for
                                ARNOLD
                           Associate Attorney General

cc: Executive Office £s: Cr.ited States Attorneys

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                                                  VI.I.5
"Addendum  to  GM-46:    Policy on  Publicizing  Enforcement
Activities,1* dated August 4, 1987.  (Contains discussions on
explaining differences  between initial penalty  demands and
final penalty.)

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON, D.C. 20460
                             -41987
 MEMORANDUM
SUBJECT:
FROM:
TO:
           Addendum to GM-46:   Policy  on Publicizing
           Enforcement Activities
          Thomas L. Adams, Jr.
          Assistant Administrator for Enforcement
            and Compliance Monitoring
           Jennifer Joy Wil
           Assistant Admi
                                : for External Affairs
          Assistant
          General. Counse
          Inspector General
          Regional Administrators
          Office of Public Affairs
            (Headquarters and Regions I-X)
          Regional Counsel (I-X)
I.
     ISSUE
     Significant differences can exist between civil penalties
proposed at the initiation of enforcement cases and the final
penalties to be paid at the conclusion, of such matters.  This
memorandum provides guidance on addressing the issue of the
"penalty gap" where the difference between the proposed and
final penalty is appreciable.  EPA must avoid any public misper-
ception that EPA is not serious about enforcement when such
differences occur.
II.  DISCUSSION

     Attached is an "Addendum to the EPA Policy on Publicizing
Enforcement Activities". GM-46, issued November 21, 1985.  The
Addendum provides standard text to be included in any press
release announcing the settlement of an enforcement case in
which the penalty amount finally assessed differs appreciably
from the amount proposed.

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                 '•  •  • .       -2-

     Press releases issued at the filing of cases normally
state the amount of the civil penalty being sought by the
Agency*  The proposed penalty may be the maximum statutory
amount allowable under applicable law, or a penalty amount
as calculated by application of an Agency penalty policy which
assigns specific penalties to various violations of law.

     When a case is settled, however, the penalty to be paid
by the violator is oftentimes appreciably less than the
penalty sought by the Agency at the initiation of the action.
Members of the public may question any difference between
these two amounts, especially persons who are not familiar with
the laws, regulations, and published policies of the Agency.

     The Addendum points out that a number of mitigating factors
can result in a penalty adjustment, and that Congress on occasion
has dictated that EPA take into account such factors in determin-
ing the amount of a civil penalty (e.g., TSCA §16, 15 U.S.C.
2615).                             "

Attachment


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        ADDENDUM TO EPA POLICY ON PUBLICIZING ENFORCEMENT ACTIVITIES,
                       GM-46, ISSUED NOVEMBER 21,  1985


       I.   PURPOSE              .

            This.addendum to the EPA Policy on Publicizing Enforcement
       Activities, GM-46, issued November 21,  1985,  provides  standard
       text which should be included in EPA press  releases which
       announce the settlement of an enforcement ease in which the
       final penalty is appreciably less than the  proposed penalty.

            The purpose of the text is to preclude any public misper-
       ception that EPA is not serious about enforcement when these
       appreciable differences occur.


       XX.  BACKGROUND          .    .

            Congress has directed the  Agency in certain instances to
       consider specific mitigation factors in assessing a final penalty.
       Accordingly, the Agency regularly takes into account such factors
       as the gravity of the violations),  the violator's compliance
       history* and its-degree of culpability—in  addition to weighing
     .  such litigation concerns as the clarity of  the regulatory
       requirements and the strength of the government's evidentiary
       case—when negotiating a civil  penalty amount as part  of a
       settlement agreement.  Guidance for applying mitigating adjust-
       ment factors is included in the Agency's published penalty
       policies.


       XII. POLICY

            Since it is the policy of  EPA to use publicity of enforcement
       activities as a key element in  the Agency's program to promote
       compliance and deter violations,  public awareness .and  accurate
       perceptions of the Agency's enforcement activities are extremely
       important.

            Appreciable differences between civil  penalty amounts
       proposed at the commencement of enforcement cases and  the final
»       penalty SUBS to be paid at the  conclusion of such matters may be
       erroneously perceived as evidence that EPA  is not serious about
       enforcing the Nation's environmental laws.   Consequently, such
       differences should be explained and accounted for in the Agency's
       communications to .the public.

            It is the policy of EPA that when press releases  are issued
       to announce the settlement of enforcement cases in which the
       settlement penalty figure is appreciably less than the initially  '
       proposed penalty amount,  such releases should include  standard
       text (see Section IV, p.2) to ensure that the general  public is
                                                                     2O1

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adequately informed of the analysis behind the final
penalty amount, and the reasons justifying the penalty
reduction.  The release should also describe any environ-
mentally beneficial performance required under .the
terms of the settlement which goes beyond actions being
taken simply to come into compliance.
IV.  IMPLEMENTATION OF POLICY

     When a press release is issued at the settlement of an
enforcement action, any such press release that includes the
announcement of a final penalty assessment which is appreciably
different from the penalty proposed at the outset of the case
should include the following standard text:
   *
          "The civil penalty in this action was the
     product of negotiation after careful consideration
     by the government of the facts constituting the
     violation, the gravity of the misconduct, the
     strength of the government's case, and established
     EPA penalty policies.

     [NOTE: Include the following paragraph only in cases
            involving environmentally beneficial
            performance.]
           'In agreeing to this $
                           ___^____ penalty,  the
government recognizes the contribution to long-term
environmental protection of [briefly summarize here
the environmentally beneficial performance explained
in detail in the body of the releaseJ."

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VI. ' SPECIALIZED ENFORCEMENT TOPICS




    J.  TOXICS/TOXICITY CONTROL
          *•.


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                                                  VI.J.I
"Policy  for  Development  of   Water  Quality-Based  Permit
Limitations for Toxic Pollutants," dated February, 1984.
See IZ.A.7.

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                                              VI.J.2
"Whole Effluent Toxicity  Basic  Permitting  Principles  and
Enforcement  Strategy," dated January 25, 1989.   Includes
Compliance Monitoring and Enforcement Strategy, dated 1/19/89.
                                                     •mi

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                                                      Attachment A
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                            WASHINGTON. D.C. 2O440
                               January 25,. 1989
                                                                Of
 MEMORANDUM

 SUBJECT:  _Whole  Effluent Toxicity  Basic  Permitting Principles and
        r^Enforcement  Strategy

 FROM*      Rebecca W. Hanmer, Acting Assistant Administrator
           Office of Water
TO s
           Regional ' Administrators
     Since the  issuance of the  "Policy  for the Development of
Water Quality-based Permit Limitations  for Toxic Pollutants'* in
March of  1984,  the Agency has been moving forward to provide
technical documentation to support the  integrated approach of'
using both chemical and biological methods to ensure the
protection of water quality*  The Technical Support Document for
Water Quality-based "Toxics Control  (September, 1985)" and the
Permit Writer's Guide to Water Quality-based Permitting for Toxic
Pollutants  (July, 1987) have been instrumental in the initial
implementation of the Policy.  The  Policy and supporting
documents, however, did not result  in consistent approaches to
permitting and enforcement of toxicity controls nationally.  When
the 1984 Policy was issued, the Agency did not have a great deal
of experience in the use of whole effluent toxicity limitations
and testing to ensure protection of water quality.  We now have
more than four years of experience  and are ready to effectively
use this experience in order to improve national consistency in
permitting and enforcement*

     In order to increase consistency in water quality-based
toxicity permitting, I am issuing the attached Baa-  Permitting
Principles for Whole Effluent Toxicity (Attachment  .) as a
standard with which water quality-based permits should conform.
A workgroup of Regional and State permitting, enforcement, and
legal representatives developed these minimum acceptable
requirements for toxicity permitting based upon national
experience.  These principles are consistent with the toxics
control approach addressed in the proposed Section  304(1)
regulation.  Regir-3 should use these principles when reviewing
draft State permit*.  If the final  Section 304(1) regulations
include changes in this area, we will update these  principles as
necessary.  Expanded guidance on the use of these principles will
be sent out shortly by James Elder, Director of the Office of
                                                                     "ZlV

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                  ;•.--.'    - 2 - .


Water Enforcement and Permits.  This expanded guidance will
include sample permit language and permitting/enforcement
scenarios.

     Concurrent with this issuance of the Basic Permitting
Principles, I am issuing the Compliance Monitoring and
Enforcement Strategy for Toxics Control (Attachment 2).  This
Strategy was developed by a workgroup of Regional and State
enforcement representatives and has undergone an extensive
comment period.  The Strategy presents the Agency's position on
the integration of toxicity control into1the existing National
Pollutant Discharge Elimination System (NPDES) compliance and
enforcement program.  It delineates the responsibilities of the
permitted community and the regulatory authority.  The Strategy
describes our current efforts in compliance tracking and quality
assurance of self--monitoring data from the permittees.  It
defines criteria for review and reporting of toxicity violations
and describes the types of enforcement options available for the
resolution of permit violations.

     In order to assist you in the management of whole effluent
toxicity permitting, the items discussed above will join the 1984
Policy as Appendices to the revised Technical Support Document
for Water Quality-based Toxics Control.  To • unsnarlzeT these
materials are the Basic Permitting Principles, sample permit
language, the concepts illustrated through the permitting and
enforcement scenarios, and the Enforcement Strategy.  I hope
these additions will provide the needed framework to integrate
the control of toxicity into the overall NPDES permitting
program.

     I encourage you and your staff to discuss these documents
and the 1984 Policy with your States to further their efforts in
the implementation of EPA's toxics control initiative.

     If you have any questions on the attached materials, please
contact James Elder, Director of the Office of Water Enforcement
and Permits, at (FTS/202) 475-8488.

Attachments

cc:  ASWIPCA
     Water Management Division Directors

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I
                 BASIC PERMITTING PRINCIPLES FOR WHOLE EFFLUENT TOXICITY .  •

              1.   P*r»its must be protective of water quality.

                   a.   At a minimum, all major permits and minors of
                        concern must be evaluated for potential or known
                        toxicity (chronic or acute if more limiting),

                   b.   Final whole effluent toxicity limits must be
                        included in permits where necessary to ensure
                        that State 'Water Quality standards are met.
                        These limits must properly account for effluent
                        variability, available dilution, and species
                        sensitivity.

              2.   Permits must be written to avoid ambiguity and ensure
                   enforceability.

                   a.  whole effluent toxicity limits must appear in Part I
                       of the permit with other effluent limitations.

                   b.  Permits contain generic re-opener clauses which
                       are sufficient to provide permitting authorities
                       the means to re-open, modify, or reissue the
                       permit where necessary.  Re-opener clauses covering
                       effluent toxicity will not be included in the
                       Special conditions section of the permit where
                       they imply that limit revision will occur based
                       on permittee -inability to meet the limit.  Only
                       schedules or'other special requirements will be
                       added to the permit.

                   c.  If the permit includes provisions to increase
                       monitoring frequency subsequent to a violation, it
                       must be clear that the additional tests only deter-
                       mine the continued compliance status with the limit;
                       they are not to verify the original test results.

                   d.  Toxicity testing species and protocols will be
                       accurately referenced/cited in the permit.

              3.   Wh«c« not in compliance with a whole effluent toxicity
                   limit, permittees must be compelled to come  into compliance
                   with the limit as soon as possible.

                   a.  Compliance dates must be specified.

                   b.  Permits can contain reauirements for corrective
                       actions, such as Toxicity Reduction Evaluations
                       (TREs), but corrective actions cannot be delayed
                     .  pending EPA/State approval of a plan for the
                       corrective actions, unless State regulations •
                       require prior approval..  Automatic corrective
                       actions subsequent to the effective date of a final
                       whole-effluent toxicity limit will not  be included
                       in the permit.

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                                                     ATTACHMENT 1
 Explanation of  the Basic Permitting  Principles
      The  Basic  Permitting  Principles  present  the minimum
 acceptable  requirements  for  whole-effluent  toxicity permitting.
 They  begin  with a  statement  of  the goal of  whole-effluent
 toxicity  limitations  and requirements:  the protection of water
 quality as  established through  State  numeric  and narrative Water
 Quality Standards.  The  first principle builds on  the Technical
 Support Document procedures  and the draft Section  304(1) rule
 requirements  for determining potential to violate  Water Quality
 Standards.  It  requires  the  same factors be considered in setting
 whole-effluent  toxicity  based permits limits  as are used to
 determine potential Water  Quality Standards violations.  It
 defines the universe  of  permittees that should be  evaluated  for
 potential violation of Water Quality  Standards, and therefore
 possible  whole-effluent  limits,  as all majors and  minors of
 concern.
                                                             *
      The  second permitting principle  provides basic guidelines'
 for avoiding  ambiguities that may surface in  permits'.  Whole-
 effluent  toxicity  limits should be listed in  Part  I of the permit
 and should  be derived and  expressed in the  same manner as any
 other water, quality-based  limitations (i.e.,  Maximum Daily and
 Average Monthly limits as  required by Section 122.4S(d)).

      In addition,  special  re-opener clauses are generally not
 necessary,  and  may mistakenly imply that permits may be re-opened
 to revise whole-effluent limits that  are violated.  This is  not
 to imply  that special re-opener clauses are never  appropriate.
 They may be appropriate  in permits issued to  facilities that
 currently have  no known  potential to  violate  a Water Quality
 Standard;  in  these cases,  the permitting authority may wish  to
 stress its  authority  to  re-open the permit  to add  a whole-
 effluent  limit  in  the event  monitoring detects toxicity.

     Several  permittees  have mistakenly proposed to conduct
 additional monitoring subsequent  to a violation to "verify"  their
 results.  It  is  not possible to verify results with a subsequent
 test whether  a  new sample  or a  split-sample which  has been stored
 (and therefore  contains  fewer volatiles) is used.  For this
 reason, any additional monitoring required  in response to a
violation must  be Clearly  identified  as establishing continuing
compliance status,  not verification of the  original violation.

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                  ;•-.'. 2  -

      The second principle also deals  with the  specification  of
 test specie* and protocol.   Clearly setting  out  the  requirements
 for toxicity testing and analysis  is  best done by  accurately
 referencing EPA's most recent  test methods and approved
 equivalent State methods.   In  this way,  requirements which have
 been published can be required in  full,  and  further  advances in
 technology and science may be  incorporated without lengthy permit
 revisions.

      The third and final permitting principle  reinforces  the
•responsibility of the permittee to seek  timely compliance with
 the requirements of its NPDES  permit.  Once  corrective actions
 have been identified in a THE,  permittees cannot be  allowed  to
 delay corrective actions necessary to comply with  water quality-
 based whole^effluent toxicity  limitations pending  Agency  review
 and approval of voluminous  reports or plans.   Any  delay on the
 part of  the permittee or its contractors/agents  is the
 responsibility of the permittee.

      The final principle was written  in  recognition  of the fact
 that a full-blown TRE may not  be necessary to  return a permittee
 to  compliance in all cases,  particularly subsequent  to an initial
 TRE.   As a  permittee gains  experience and knowledge  of the
 operational influences on toxicity,  TREs will  become less
 important in the day to day control of toxicity  and  will  only be
 required when necessary on. a case-specific basis.-

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                                                     ATTACHMENT 2
Background-to the Comnl^pee Monitoring and
         for Toxics Control
     The Compliance Monitoring and Enforcement. Strategy for
       control sets forth the Agency's strategy for tracking
compliance with and enforcing whole-effluent toxic ity monitoring
requirements, limitations, schedules and reporting requirements.

     The Strategy delineates the respective responsibilities of
permittees and permitting authorities to protect water quality
through the control of whole-effluent toxicity.  It establishes
criteria for the review of compliance data and the quarterly
reporting of violations to Headquarters and the public.  The
Strategy discusses the integration of whole-effluent toxicity
control into our existing inspection and quality assurance
efforts.  It provides guidelines on the enforcement of whole-
effluent toxicity requirements.

     The strategy also addresses the concern many permittees
share as they face the prospect of new requirements in their
permit - the fear of indiscriminate penalty assessment for  •
violations that they are unable to control.  The Strategy
recognizes enforcement discretion as a means of dealing fairly
with permittees that are doing everything feasible to protect
water quality.  As indicated in the Strategy, this discretion
deals solely with the assessment of civil penalties, however, and
is not an alternative to existing procedures for establishing
relief from State Water Quality Standards.  The strategy focuses
on the responsibility of the Agency and authorized States to
require compliance with Water Quality Standards and thereby
ensure protection of existing water resources.

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                                                        01/19/89
           COMPLIANCE MONITORING AND ENFORCEMENT STRATEGY
                          FOR TOXICS CONTROL
  I.   Background

      Issuance of NPDES permits now emphasizes the control of toxic
pollutants* by integrating technology and water quality-baaed
permit  limitation** best management practices for toxic discharges,
sludge  requirements, and revisions to the pretreatment implementa-
tion  requirements.  These requirements affect all major permittees
and those minor permittees whose discharges may contribute to
impairment of the designated use for the receiving stream.  The
goal  of permitting  is to eliminate toxicity in receiving waters
that  results from industrial and municipal discharges.

      Major industrial and municipal permits will routinely contain
water quality-based limits for toxic pollutants and in many cases
whole effluent toxicity derived from numerical and narrative
water quality standards.  The quality standards to establish NPDB8*
permit  limits are discussed in the "Policy for the Development of  *
Water Quality-based Permit Limits for Toxic Pollutants** 49FR 9.016,
March 9, 1984.  The Technical Support Document for Water Quality-
based Toxics Control* EPA #440/44-85032, September* 1985 and the
Permit writer's Guide to Water Quality-based Permitting for Toxic
Pollutants* Office of Water* May*  1987* provide guidance for inter-
preting numerical and narrative standards and developing permit
limits.

     The Water Quality Act  (WQA) of  1987  (PL 100-4* February 4,
1987) further directs EPA and the  States to identify waters that
require controls for toxic  pollutants and develop individual
control strategies including permit  limits to achieve control of
toxics.  The WQA established deadlines, for individual control
strategies (February 4,  1989) and  for compliance with the toxic
control permit requirements (February 4,  1992).  This Strategy
will support the additional compliance monitoring, tracking* evalu-
ation, and enforcement of the whole  effluent toxicity controls
that will be needed to meet the requirements of the WQA and EPA's
policy for water quality-based permitting.

     It is the goal of the  Strategy  to assure compliance with
permit toxicity limits and  conditions through compliance inspec-
tions* compliance reviews,  and enforcement.  Water quality-based
limits may include both  chemical specific and whole effluent toxi-
city limits.  Previous- enforcement guidance (e-.g., Enforcement
Management System for the National Pollutant Discharge Elimination
System* September* 1986; National  Guidance for Oversight of SPDES
Programs, May, 1987; Guidance for  Preparation of Quarterly and
Semi-Annual Noncompliance Reports. March, 1986} has dealt with

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                                     -  2  -
     chemical-specific water quality-baaed Unit*.  This Strategy will
     focus  on vholev effluent toxicity  limits.  Such toxicity limits nay
     appear in p«r»it», administrative orders, or judicial orders.

       II.   Strategy Principles

            This strategy  is based on four principles:

             1)  Permittees are responsible  for attaining, monitoring,
                 and maintaining permit compliance and for the quality
                 of their data.

             2)  Regulators will evaluate self-monitoring data quality
                 to ensure program integrity.

             3)  Regulators will assess compliance through inspections,
                 audits; discharger data reviews, and other independent
                 monitoring or review  activities.

             4)  Regulators will enforce effluent limits and compliance
                 schedules to eliminate toxicity.

     III.   Primary  Implementation Activities
                                                                    •
            In order to implement this  Strategy fully, the following
     activities are being initiated:

            A.  Immediate development

                 1.  The NPDES Compliance InspectionManual was
                     revised in May 198S to  include procedures for
                     performing chronic toxicity tests and evaluating
                     toxicity reduction evaluations.  An inspector
                     training module was also developed in August
                     1988 to support inspections Cor whole effluent
                     toxicity.

                 2.  The Permit Compliance System (the national MPDES
                     data base) was modified to allow inclusion
                     of toxicity limitations and compliance schedules
                     associated with toxicity reduction evaluations.
                     The PCS Steering  Committee will review standard
                     data elements and determine if further modifi-
                     cations are necessary.

                 3.  Compliance review factors (e.g., Technical
                     Review Criteria and significant noncompliance
                     definitions) are  being  proposed to evaluate
                     violations and appropriate response.

                 4.  A Quality Assurance Fact Sheet has been developed
                     (Attached) to review the quality of  toxicity test
                     results submitted by permittees.
-7 i Q-7

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                              - 3 -
           5.  The Enforcement Response Guide in the Enforcement
               Management System will be revised to cover  the  use
               of administrative penalties and other responses to
               violations of toxicity controls in permits.   At
               least four types of permit conditions are being
               examined: (1) whole-effluent toxicity monitoring
               (sampling and analysis), (2) whole effluent
               toxicity-based permit limits,  (3) schedules to
               conduct a TRE and achieve compliance with water
               quality-based limits, and (4)  reporting requirements.

     B.  Begin development in Spring 1989

          With the assistance of the Office of Enforcement and
     Compliance Monitoring (OECM), special remedies and'model  forma
     will be developed to address violations  of toxicity permit
     limits (i.e., model consent decrees, model complaints, revised
     penalty policy, model litigation reports, etc.)

IV.   Scope and Implementation of Strategy

     A.  Compliance Tracking and Review

           1.  Compliance Tracking

                The Permits Compliance System (PCS) will be
           used as the primary system for tracking limits  and
           monitoring compliance with the conditions in NPDES
           permits.  Many new codes for toxicity testing have
           already been entered into PCS.  During FY 39, head-
           quarters will provide additional guidance to Regions
           and States on PCS coding to update existing documenta-
           tion.   The Water Enforcement Data Base (WENDB)
           requirements as described in the PCS Policy Statement
           already require States and Regions to begin
           incorporating toxicity limits and monitoring information
           into PCS.

                In addition to guidance on the use of PCS,
           Headquarters has prepared guidance in the form
           of Basic Permitting Principles for Regions and
           States that will provide greater uniformity
           nationally on approaches to toxicity permitting.
           One) of the major problems in the tracking and
           enforcement of toxicity limits is that they differ
           greatly from State-to-State and Region-to-Region.
           The Permits Division and Enforcement Division in
           cooperation with the PCS Steering Committee will
           establish standard codes for permit limits and
           procedures for reporting toxicity results based on
           this guidance.

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                          .  4  -
           Whole effluent  toxicity self-monitoring data
      should undergo an appropriate quality review.  (See
      attached checklist for  suggested  toxicity review
      factors.)  All violations of permit limits for
      toxics control should be reviewed by a professional
      qualified to assess  the noncompliarica.  Regions and
      .States should designate appropriate staff.

      2.  Compliance Review

           Any violation of a whole effluent toxicity
      limit is of concern  to the regulatory agency and
      should receive an immediate professional review.
      In terms of the Enforcement Management System (EMS),
      any whole effluent violation will have a violation
      review action criterion (VRAC) of 1.0.  However, the
      appropriate initial  enforcement response may be to
      require additional monitoring and then rapidly
      escalate the response to formal enforcement if the
      noncompliance persists.  Where whole effluent
      toxicity is based on a pass-fail  permit limitation,
      any failure should be immediately targeted for
      compliance inspection.  In some instances, assessment
      of the compliance status will be  required through  •
      issuance of Section  308 letters and 309(a) orders to
      require further toxicity testing.

           Monitoring data which is submitted to fulfill
      a toxicity monitoring requirement in permits that do
      not contain an independently enforceable whole-effluent
      toxicity limitation  should also receive immediate
      professional review.

           The burden for  testing and biomonitoring is on
      the permittee; however, in some instances. Regions and
      States may choose to respond to violations through
      sampling or performance audit inspections.  When an
      inspection conducted in response  to a violation identi-
      fies noncompliance,  the Region or State should
      initiate a formal enforcement action with a compliance
      schedule, unless remedial action  is already required
      in the permit.

B.  Inspections

     EPA/State compliance  inspections of all major permittees
on an annual basis will be maintained.  For all facilities
with water quality-based toxic limits,  such inspections should
include an appropriate toxic component  (numerical and/or
whole effluent review).  Overall the NPDES inspection and
data quality activities for toxics control should receive
greater emphasis than in the present inspection strategy.

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                             -  5  -
          1.   Regional/State Capability

               The  EPA'a  "Policy  for  th« Development of Water
          Quality-based Permit  Limits for Toxic Pollutants"
          (March  9,  1984  Federal  Register) states that EPA
          Regional  Administrators will assure-that each
          Region  has  the  full capability to conduct water
          quality assessments using both biological and chemi-
          cal  methods and provide technical assistance to the
          States.   Such capability should also be maintained
          for  compliance  biomonitoring inspections and toxics
          sampling  inspections.  This capability should include
          both inspection and laboratory capability.

          2.   Use of Nonsampling  Inspections

               Nonaampling  inspections as either compliance
          evaluations (CEIs) or performance audits (PAIs) can
          be used to assess permittee self-monitoring data
          involving whole effluent toxicity limits, TREs, and
          for  prioritization of sampling inspections.*  As
          resources permit, PAIs should be used to verify
          biomonitoring capabilities of permittees and
          contractors that provide toxicity testing self-
          monitoring data.

          3.   Quality Assurance

               All  States are encouraged to develop the
          capability for  acute and chronic toxicity tests
          with at least one fish  and one invertebrate species
          for  freshwater  and saltwater if appropriate.  NPDES
          States  should develop the full capability to assess
          compliance with the permit conditions they establish.

               EPA and NPDES States will assess permittee
          data  quality and require that permittees develop
          quality assurance plans.  Quality assurance plans
          must  be available for examination.  The plan should
          include methods and procedures for  toxicity testing
          and  chemical analysis;  collection,  culture, mainte-
          nance,  and disease control procedures for test
          organisms; and  quality  assurance practices.  The


Due to resource  considerations,  it is expected that sampling
inspections will be limited to Regional/State priorities  in
enforcement and  permitting.  Routine use of  CEIs and PAIs  should
provide the required coverage.

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                                        - 6 -
                     permittee should also have available quality control
                     charts,  calibration records,  raw  test data,  and
                     culture  records.

                          In  conjunction with the  QA plans, EPA will
                     evaluate permittee laboratory performance  on EPA
                     and/or State approved methods. This evaluation  is
                     an essential part of the laboratory audit  process.
                     EPA will rely on inspections  and  other quality
                     assurance measures to maintain data quality.   However,
                     States may prefer to implement a  laboratory certifi-
                     cation program consistent with their regulatory
                     authorities.  Predetermined limits of data accepta-
                     bility will need to be established for each test
                     condition (acute/chronic), species-by-species.

               C.   Toxicity "Reduction Evaluations  (TREs)

                    TREs are  systematic investigations required of permittees
               which combine  whole effluent and/or chemical specific  testing
               for toxicity identification and characterization in a  planned
               sequence to expeditiously locate the source(s) of toxicity  and
               evaluate the effectiveness of pollution control  actions .and/or
               inplant modifications toward attaining  compliance with a  -permit
               limit.  The requirement for a TRE is usually based on  a
               finding of whole effluent toxicity  as defined in the permit.
               A plan with an implementation schedule  is then developed  to
               achieve compliance.  Investigative  approaches include
               causative agent identification and  toxicity treatability.

                     1.  Requiring TRE Plans

                          TRE's can be triggered:   1)  whenever  there  is  a
                     violation of a toxicity limit that prompts enforcement
                     action or 2) from a permit condition that  calls  for a.
                     toxicity elimination plan within  a specified tine
                     whenever toxicity is found.  The  enforcement action
                     such as  a 309(a) administrative order or State
                     equivalent, or judicial action then directs the
                     permittee to take prescribed  steps according to  a
                     compliance schedule to eliminate  the toxicity.  This
                     schedule 'should be incorporated into the permit, an
                     administrative order, or judicial order and compliance
                     with the schedule should be tracked through PCS.

                     2.  Compliance Determination Followup

                          Compliance status must be assessed following the
                     accomplishment- of a TRE plan using the most effi-   --
                     cient and effective methods available.  These methods
                     include  site visits, self-monitoring, and  inspections.
.
   •2

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                        - 7 -
      Careful attention to quality assurance will assist in
      minimizing the regulatory burden.  The method of
      compliance assessment should be determined on a
      case-by-case basis.

0.  Enforcing Toxic Control Permit Conditions

     'Enforcement of toxic controls in permits depends upon a
clear requirement and the process to resolve the noncompli-
ance.  In addition to directly enforceable whole effluent
limits (acute and chronic, including absolute pass-fail
limits), permits have contained several other types of
toxic control conditions:  1) "free from* provisions,
2) schedules to initiate corrective actions (such as TREs)
when toxicity is present, and/or 3) schedules to achieve
compliance where a limit is not currently attained.
Additional requirements or schedules may be developed
through 308 letters, but the specific milestones should be
incorporated into the permit, administrative order or
State equivalent mechanism, or judicial order to ensure
they are enforceable.

      1.  The Quarterly Noncompliance Report (QNCR)

          Violations of permit conditions are tracked and
          reported as follows:

            a.   Effluent Violations

            Each exceedance of a directly enforceable whole
            effluent toxicity limit is of concern to the
            regulatory agency and, therefore, qualifies
            as  meeting the VRAC requiring professional
            review (see section IV.A.2.).

            These violations must be reported on the QNCR
            if  the violation is determined through profes-
            sional review to have the potential to have
            caused a water quality impact.

            All QNCR-reportable permit effluent violations
            are considered significant noncompliance (SNC).

            b.   Schedule Violations

            Compliance schedules to meet new toxic controls
            should be expeditious.  Milestones should be
            established to evaluate progress routinely and
            minimize delays.  These milestones should be
            tracked and any slippage of  90 days or more
            must be reported on the QNCR.

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                   -.8 -
      The following milestones arc considered SNC when
      90-days or more overdue*  submit plan/schedule
      to conduct TRE, initiate TRE, submit test results,
      submit implementation plan/schedule (if appro-
      priate), start construction, end construction,
      and attain compliance with permit*

      c.  Reporting/Other Violations

      Violation of other toxic control requirements
      (including reports) will be reported using
      criteria that are applied to comparable NPDES
      permit conditions.  For example, failure to
      submit a report within 30 days after the due
      date or submittal of an inaccurate or inadequate
      report will be reportable noncompliance (on
      the QNCR).

      Only failure to submit toxicity limit self-
      monitoring reports or final TRE progress reports
      indicating compliance will be SNC when 30 days
      or more overdue.

    Resolution (bringing into compliance) of all three
    types of permit violations (effluent, schedule,
    •and reporting/other) will be through timely and
    appropriate enforcement that is consistent with
    EPA Oversight Guidance.  Administering agencies
    are expected to bring violators back into compliance
    or take formal enforcement action against facilities
    that appear on the QNCR and are in SNC; otherwise,
    after.two or more quarters the facility must be
    listed on the Exceptions List.

2.  Approaches to Enforcement of Effluent Limitations

     In the case of noncompliance with whole effluent
toxicity limitations, any formal enforcement action
will be tailored to the specific violation and remedial
actions required.  In some instances, a Toxicity
Reduction Evaluation, (TRE) may be appropriate.  However,
where directly enforceable toxicity-based limits are
used, the TRE is not an acceptable enforcement response
to toxicity noncompliance if it requires only additional
monitoring without a requirement to determine appropriate
remedial actions and ultimately compliance with the
limit.


     If the Regions or States use administrative
enforcement for violations of toxic  requirements,
such actions should require compliance by a date
certain, according to a set schedule, and an

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                               -  9  -
             administrative penalty should be considered.1
             Failure  to comply with an Administrative Order
             schedule within  90 days  indicates a schedule delay
             that  may affect  the  final compliance date and a
             judicial referral is  the normal response.  In instances
             where toxicity has been measured in areas with potential
             impacts  on human health  (e.g., public water supplies,
             fish/shellfish areas* etc.), regions and states
             should presume in favor of  judicial action and seek
             immediate injunctive  relief  (such as temporary
             restraining order or  preliminary injunction).

                  In  a few highly  unusual cases where the permit-
             tee has  implemented  an exhaustive THE plan?, applied
             appropriate influent  and effluent controls3, maintained
             continued compliance  with all other effluent limits,
             compliance schedules, monitoring, and other permit
             requirements, but is  still  unable to attain or maintain
             compliance with  the  toxicity-based limits, special
             technical evaluation  may be warranted and civil penalty
             relief granted.  Solutions  in these cases could be
             pursued  jointly  with  expertise from EPA and/or the
             States as well as the permittee.

                  Some permittees  may be required to perform a
             second TRE subsequent to implementation of remedial
             action.   An example of the  appropriate use of a
             subsequent TRE is for the correction of new violations
             of whole effluent limitations following a period of
^Federal Administrative penalty orders must be linked.to violations
of underlying permit requirements and schedules.

2See Methods for Aquatic Toxicity Identification Evaluations,.
Phase I, Toxicity Characterization  Procedures, EPA-600/3-88/035,
Table 1.An exhaustive TRE plan covers three areas:  causative
agent identification/toxicity  treatability; influent/effluent
control; and attainment of continued compliance.  A  listing of
EPA protocol* for TREs can be  found in Section V (pages  11 and
12).

3For industrial permittees, the facility must be well-operated
to achieve all water quality-based, chemical specific, or BAT
limits, exhibit proper 0 & M and effective BMPs, and control
toxics through appropriate chemical substitution and treatment.  .
For POTW permittees, the facility must be well-operated  to
achieve all water quality-based, chemical specific,  or secondary
limits as appropriate, adequately implement its approved pretreat-
ment program, develop local limits .to control toxicity,  and
implement additional treatment.

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                  - 10 -
sustained compliance (6 months or greater in duration)
indicating a different problem from that addressed
in the initial TRE.

3.  Enforcement of Compliance Schedule and Reporting
    Requirements

     In a number of instances, the primary
requirements in the permits to address toxicity
will be schedules for adoption and implementation
of bioaonitoring plans, or submission of reports
verifying TREs or other similar reporting require-
ments.  Regions and States should consider any
failure (1) to conduct self -monitor ing 'according
to EPA and State requirements, (2) to meet TRE
schedules within 90 days, or  (3) to submit reports
within '30 days of the specified deadline as SNC.
Such violations should receive equivalent enforce-
ment follow-up as outlined above.

4.  Use of Administrative Orders With Penalties

     In addition to the formal enforcement actions
to require remedial actions.  Regions and States
should presume that penalty AO's or State equiva-
lents can be issued for underlying permit violations
in which a formal enforcement action is appropriate.
Headquarters will also provide Regions and States
with guidance and examples as to how the current
CWA penalty policy can be adjusted.

5.  Enforcement Models and Special Remedies

    OWEP and OECM will develop standard pleadings
and language for remedial activities and compliance
milestones to assist Regions  and States in addres-
sing violations of toxicity or water quality-based
permit limits.  Products will include model  litiga-
tion reports, model complaints and consent decrees,
and revised penalty policy or penalty algorithm
and should be completed in early FY 1989.

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                            - 11 -

V.  Summary of Principal Activities and Products
    A.  Compliance Tracking and Review guidance
          1*  PCS Coding Guidance - May, 1987; revision
              2nd Quarter 1989              •
        •  2.  Review Criteria for Self-monitoring Data (draft
              attached)
    B.  Inspections and Quality Assurance
          1.  Revised NPDES Compliance Inspection Manual -
              May 1988T                    	
          2.  Quality Assurance Guidance - 3rd Quarter FY 1989.
          3.  Biomonitoring Inspection Training Module -
              August 1988.
          4.  Additions of a reference toxicant to DMRQA program
              (to be determined)
    C.  Toxics Enforcement
          1.  Administrative and Civil Penalty Guidance - 4th
              Quarter FY 1989
          2.  Model Pleadings and Complaints - 2nd Quarter 1989
          3.  EMS Revision - 2nd Quarter FY 1989
    D.  Permitting Consistency
          1.  Basic Permitting Principles -2nd Quarter FY 1989
    E.  Toxicity Reduction Evaluations
          1.   Generalized Me.thology for Conducting Industrial
              Toxicity Reduction Evaluations - 2nd Quarter
              FY 1989
          2*   Toxicity Reduction Evaluation Protocol for
              Municipal Wastewater Treatment Plants - 2nd Quarter
              FY 1989

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                  - 12 -.
3.  Methods for Aquatic Toxicity Indentification
    "Evaluations

    a.  Phase I.    Toxicity Characterization
                    Procedures, EPA-600/3-88/034-
                    September 1988

    b.  Phase II.   Toxicity Identification
                    Procedures, EPA-600/3-88/035-
                    2nd Quarter 1989

    c.  Phase III.  Toxicity Confirmation Procedurea-
                    EPA-600/3-88/036  - 2nd Quarter
                    FT 1989

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                                                        Attachment
            QUALITY CONTROL FACT SHEET FOR SELF-BIOMONITORING
                     ACUTE/CHRONIC TOXICITY TEST DATA
Permit No.
Facility Mane
Facility Location
Laboratory/Investigator
Permit Requirementst
  Sampling Location  _
  Limit 	
  Type o£ Test _,_J:T	
Test Resultst
Type of Sample^
Test Duration
Test Organism Age
  LC50/EC50/NOEL
95% Confidence Interval
Quality Control Summary
  Date of Sample!  ____
Dates of Test:
  Control Mortality:
Control Mean Dry Weight
  Temperature maintained within +2»C of  test  temperature?   Yes	   No
  Dissolved oxygen levels always greater  than 40%  saturation?.
    Yes	 No	
  Loading factor for all exposure  chambers  less  than  or  equal to
  maximum allowed for the test type and  temperature?     Yes	 No	
  Do the test results indicate a direct  relationship  between effluent
  concentration and response of the test  organism  (i.e.,  more deaths
  occur at the highest effluent concentrations)?   Yes	 No
                                                                        • r--J-
                                                                        U _.

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                                                                    VI.J.3
# "Quality Assurance Guidance for Compliance Monitoring in Effluent
Biological Toxicity Testing", dated March 7, 1990.

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               UNITED STATES ENVIRONMENTAL PROTECTION AGtNCY
                          WASHINGTON, D.C. 20460
                        MAR
                              71990
                                                       OFFICE OF WATER
MEMORANDUM

SUBJECT: Quality Assurance Guidance  for  Compliance  Monitoring  in
         Effluent Biological Toxicity  Testy

FROM:    David N. Lyons, P.E., Chief
         Enforcement Support Branch  (

TO:      Compliance Branch Chiefs, Water  Management Division
         Surveillance Branch Chiefs, Environmental  Services Div
         Regions 1-10
     I am attaching the "QA Guidance for Compliance Monitoring
Effluent Biological Toxicity Testing"  for your  distribution.
                                                                in
     This document will supplement  the  QA  section  {Chapter  8)  in
the NPDES Compliance  Inspection  Manual.  The  objective of this
guidance is to help NPDES  inspectors, trained  or  untrained  in  the
principles of biological testing, to  understand  the  parameters
that influence the acceptability of test data, and to  recognize
data that are invalid  for  verifying compliance.

     Earlier drafts were reviewed by  a  workgroup  consisting of
Headquarters, Regional and State staff.  Their comments  were
incorporated in this  version.   If you have any questions, please
feel free to contact  my staff,  Samuel To  (FTS-475-8322)  and
Theodore Coopwood (FTS-475-8327) .

Attachment
                                                          PrgMdonRfcydadPaptr

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      QUALITY ASSURANCE GUIDANCE
                  FOR
        COMPLIANCE MONITORING
IN EFFLUENT BIOLOGICAL TOXICITY TESTING
            February 1990
Office of Water Enforcement and Permits
 U.S. Environmental Protection Agency

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                         TABLE OF CONTENTS

                                                              Page

Introduction 	*	 1

General Quality Assurance Concern	3
     Objectives	3
     Quality Assurance Program	3
     Review of Quality Assurance Procedures	5

Sample -Collection and Test Procedures	 7
     Effluent and Receiving Water Sampling	7
     Facilities, Equipment, and Test Chambers	8
     Analytical Methods  	9
     Calibration and standardization of Equipment and
     Reagents	.	9
     Dilution Water 	9
     Record Keeping	10

Test Organisms	12
     Organisms Used	12
     Quality and Source of Test Organisms 	12
     Food Quality 	12
     Reference Toxicants	13
     Control Charts 	14

Assessing Data Quality 	15
     Test Acceptability	15
     Precision	16
     Accuracy	.....17
     Completeness	18
     Representativeness	18
     Comparability	19
     Replication and Test Sensitivity	19

Reporting Results 	20

References 	21

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i'

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                           INTRODUCTION
The purpose of  this  document  is to provide quality assurance
guidance  for  review  and  evaluation of effluent toxicity testing.
It will serve as  an  addendum  to the NPDES Compliance Inspection
Manual.   Its  objective is to  help those both trained and
untrained in  the  principles of biological testing to understand
the parameters  that  influence the acceptability of test data, and
recognize data  that  are  invalid for verifying compliance.

The primary goal  of  quality assurance is to ensure that all
environmentally related  measurements submitted to the U.S.
Environmental Protection Agency (EPA) in permittee self
monitoring reports represent  data of known quality.  The quality
of data is known  when all components associated with its
derivation are  thoroughly documented, and the documentation is
verifiable and  defensible.  It is EPA's policy to ensure that
data representing environmentally related measurements are of
known quality.'
Quality Assurance is especially important in the NPDES program
which obtains the majority of its information on permittee
compliance from test data submitted by the permittees.
Compliance with NPDES permit effluent limitations requires that
accurate test results be within the allowable quantity or
concentration prescribed in the permit.
     a Quality Assurance is the program that assures the
reliability of data.  It includes policies, objectives,
principles, programs, and procedures to produce data of known and
accepted quality.  It may include quality control, which is the
routine application of detailed procedures for obtaining
prescribed standards of performance in the monitoring and
measurement process.
                                                                  7;

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This guidance focuses on the quality assurance considerations
that affect the acceptability of whole-effluent toxicity test  .
data submitted by permittees.  Whole-effluent toxicity tests
involve the exposure of selected test organisms to prescribed
concentrations of effluent under controlled test conditions for a
specified time to determine effluent toxicity.  Toxicity may be
exhibited by changes in organism mortality, growth, reproduction
or other physical response when compared to a control.  As with
specific chemical analyses, whole-effluent toxicity tests must
conform to a specified set of physical conditions to be
considered valid.  Only valid tests can confirm compliance with
an effluent limitation.

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               GENERAL QUALITY ASSURANCE CONCERNS
Obi actives
The objectives of a toxicity testing quality assurance program
are to ensure that generated data reflect accurately the
conditions that the data represent, that commonly accepted or
standard practices have been followed in all facets of data
generation, and that each step of data generation from sample
collection to reported results has an appropriate written
verifiable log or record.

Quality Assurance Program
The elements of a good quality assurance program are designed to
ensure that the above objectives are fulfilled.  Such elements
should be contained in a written quality assurance plan for each
facility conducting toxicity testing.  The plan for each facility
should contain:4*5
     a)   Facility quality assurance policy
     b)   Standard operating procedures
     c)   System and performance audits
     d)   Facilities and equipment
     e)   Qualifications and training of personnel
     f)   Quality assurance/ quality control responsibilities
     g)   Administrative sample handling procedures
     h)   Sample custody and chain-of -custody procedures
     i)   Applicable instrument calibration procedures,
          frequency, and records
     j)   Laboratory practices to ensure that reagents and
          standard solutions have not violated respective shelf
          holding time

The aspects of the quality assurance plan dealing with effluent
toxicity tests should discuss:

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             a)   Effluent  sampling  and  handling
             b)   Source, condition  and  handling of  test organisms
             c)   Condition of  equipment
             d)   Test conditions
             e)   Instrument calibration
             f)   Replication
             g)   Use of reference toxicants
             h)   Record keeping
             i)   Data evaluation
             j)   Data reporting

        The plan should specify where verifiable logs  or records  should
        be maintained and retained to identify  the responsible  person for
        each aspect of the  data generating procedure,  and the practices
        that will ensure that possible tampering with  sample quality  has
        not occurred.

        Test organisms are  the  analytical instruments  in a toxicity test.
        They respond to the elements of  their environment in accordance
        with their individual sensitivity.  Methods  for  toxicity  testing
        have been accepted  and  published by EPA.6'7'8   Quality assurance
        practices require that  documentation shows that  these methods
        have been followed  or that any deviations are  fully explained and
        documented.

        Sampling and sample handling requires that sample holding time is
        not violated.  Test organisms should be positively identified to
        species and be disease-free, of  known age, and of good  health;
        their source should be  recorded  and reference  toxicant  testing
        documented.  Laboratory temperature control  equipment must be
        adequate to maintain recommended test water  temperatures.  Test
        materials fabrication must not influence test  solution  or control
        water quality.  Analytical methods must include  quality control
        practices outlined  in EPA methods manuals or as  specified in
-'?
 -

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official EPA methods.9'10  Instruments used for routine
measurements of chemical and physical parameters must be
calibrated and standardized according to accepted procedures.
Dilution water should be appropriate to the obj ectives of the
study.6'7'8   Water  temperature,  dissolved  oxygen,  salinity or
water hardness, and pH should be maintained within the limits
specified for each test.  Replication of test procedures are
specified in the test instructions.  Reference toxicants should
be used to verify efficacy of laboratory procedures and health of
organisms.  Proper, accurate, complete record keeping and data
reporting are essential.  All of these parameters are specified
in the methods manuals.
Review of Quality Assurance Procedures
One method used to evaluate permittee adherence to good quality
assurance and test protocols is through an inspection or audit.
A quality assurance inspection or audit would examine documents,
records, and procedures, including:
     a)   Quality assurance program plan
     b)   Quality assurance audit reports and inspection records
     c)   Laboratory certifications
     d)   Equipment calibration records
     e)   Collection and management of samples to laboratory
     f)   Chain-of-custody and responsible-person procedures
     g)   Sample management, storage, and security within
          laboratory
     h)   Record keeping
     i)   Laboratory facility and equipment condition
     j)   Training and experience of personnel
     k)   Source, maintenance, and apparent health of test
          organisms
          Source and results of reference toxicants  (i.e.,
          reference toxicant test results and control survival)
D

m)
          Shelf life and labeling of reagents and standard test
          solutions

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            n)    Methods for preparation of laboratory standards and
                 synthetic or artificial waters including the source of
                 any sea salts used.
            o)    Deviations from standard procedures
            p)    Test reports that were rejected for unacceptable QA/QC
                 by a regulatory agency
            q)    Adequacy of space and equipment for work load
            r)    Methods for laboratory waste disposal

       An inspection or audit should  determine compliance with minimum
       acceptable criteria for collecting samples,  conducting the tests,
       and analyzing test results. In addition to  examining the
       equipment and facilities,  the  acquisition, culture,  maintenance,
       and acclimation of test organisms should be  investigated.
       Detailed considerations of the primary aspects of whole-effluent
       toxicity testing follow.

.--,

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              SAMPLE COLLECTION AND TEST PROCEDURES
Effluent and Receiving Water Sampling
The effluent sampling point should be the same as specified in
the National Pollutant Discharge Elimination System permit.  The
collector of a sample should be recorded.  It is essential that
the sample be characteristic of the wastewater discharge.  When
chlorination is practiced, regulatory authorities measure the
toxicity of the effluent at different steps in the process; i.e.
prior to chlorination, or after chlorination, or after
dechlorination with sodium thiosulfate.  Receiving water samples
are collected upstream from the outfall being tested or from
uncontaminated surface water with similar natural qualities.  It
is common practice to collect grab samples for receiving water
toxicity studies, and receiving water may be specified as a
source of dilution water in effluent toxicity tests.  These grab
sample collections should be conducted following the
specifications for each test method.
6.7.8
Aeration during collection and transfer of effluents should be
minimized to reduce the loss of volatile chemicals.  Sample
holding time, from time of collection to initiation of the test,
should not exceed 36 hours.  Samples collected for off-site
toxicity testing are to be chilled to 4°C when collected,  shipped
in ice to the laboratory, and there transferred to a 4°C
refrigerator until used.

The above precautions are taken to maintain the potential
toxicity characteristics and integrity of the wastewater and to
ensure that such characteristics are not changed following sample
collection and prior to toxicity testing.  Precautions should be
taken to ensure that any materials used in sample collection or
throughout the testing process will not affect the integrity of
                                7

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           the sample being tested.  Any alterations to effluent or dilution
           water samples should be well documented even if that adjustment
           is standard, including the use of sea salts or hypersaline brine
           (HSB) to adjust the salinity of freshwater effluents.

           Facilities. Equipment, and Test Chambers

           Specific requirements have been developed for facilities and
           equipment used in toxicity test ing, 6'7>e and should  be referred to
           during the conduct of each method.  To summarize:

                     Laboratory temperature control equipment must maintain
                     recommended test water temperatures.

                     All materials that come in contact with the effluent
                     must be such that there is no leaching or reaction that
                     potentially would alter the integrity of the wastewater
                     being tested.  Tempered glass and perfluorocarbon
                     plastics (TeflonR)  should be used  whenever possible to
                     minimize sorption and leaching of toxic substances.
                     These materials may be reused following decontamination.

                     Plastics such as polyethylene, polypropylene, polyvinyl
                     chloride, and TYGONR may be used as test chambers or to
                     store effluents, but caution should be exercised in
                     their use because they might introduce toxicants when
                     new, or carry over toxicants from one test to another if
                     reused.

                •    The use of large glass carboys is discouraged for safety
                     reasons.  Glass or disposable polystyrene containers are
                     used for test chambers.

                •    New plastic products of a type not previously used
                     should be tested for toxicity before initial use by
                                            8
.

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          exposing the test organisms in the test system where
          the material is used.

          Silicone adhesive used to construct glass test chambers
          absorbs some organochlorine and orgahophosphorus
          pesticides.  As little of the adhesive as.possible
          should be in contact with the water and any beads of
          adhesive inside the containers should be removed.

          Cleaning of equipment should be rigorous and thorough.
Analytical Methods
Routine chemical and physical analyses must include established
quality control practices outlined in EPA methods manuals or in
40 CFR 136 particular approved methods.4'5

Calibration and Standardization of Equipment and Reagents

Instruments used for routine measurements of chemical and
physical parameters such as pH, dissolved oxygen, temperature,
conductivity, alkalinity, and salinity/hardness must be
calibrated and standardized according to instrument
manufacturers' procedures.  Wet chemical methods used to measure
alkalinity and hardness must be standardized according to
procedures specific in the EPA method.  Logs should be maintained
for the calibration of instruments.
Dilution Water^
Dilution water should be the same as specified in the permit.  If
required, dilution water may be synthetic water, ground water,
seawater, artificial seawater or hypersaline brine (HSB) made
from a non-contaminated source of natural seawater (above 30 0/00
salinity) appropriate to the objectives of the study and

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logistical constraints, and should follow recommendations of each
individual method.  Holding time and holding temperature for
dilution water are specified as similar to that for effluent
samples.  Dilution water is considered acceptable if test
organisms have adequate survival (during acclimation and
testing), growth, and reproduction in the test chambers during a
test; and give the predicted results when tested using a
reference toxicant.
Water temperature within the test chambers must be monitored
continually and maintained within the limits specified for each
test.  Dissolved oxygen concentrations must also be maintained
within the limits specified, and pH should be checked and
recorded at the beginning of the test and at least daily
throughout the test.  In regard to dissolved oxygen, if it is
necessary to aerate during the test, and the protocol allows
aeration, all concentrations and controls must be aerated and the
fact noted on the test report.

Record Keeping
Records should detail all information about a sample and test
organisms, including:
     a)   Collection:  date; time; location; pre-, post-, or
          dechlorinated; weather conditions, methods, and
          collector
     b)   Transportation:  method, chain of custody, packing to
          ensure correct temperature maintenance, and security
     c)   Laboratory:  storage, analysis, and security
     d)   Testing:  elapsed time from sample collection,
          treatment, and type of test
     e)   Test organism:  species, source, age, health, and
          feeding
     f}   Records of diseased or discarded organisms
     g)   Test results including replicates and controls
     h)   All calculations that impact test results and data
          interpretation
                                10

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     i)   Any observations of a non-routine occurrence that nay
          be important in interpretation of results
     j)   Equipment and instrument calibrations
     k)   Any deviation from the protocol.

Records should be kept in bound notebooks.  Observations should
be recorded as they occur to prevent the loss of information.
Notebook data and observations should be initialed and dated by
the observer.
                               11
                                                                2 2

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                         TEST ORGANISMS

Organisms Used

The standard freshwater test organisms used in chronic toxicity
tests are the fathead minnow, Pimephales promelas; the
cladoceran, Ceriodaphnia dubia; and the green alga, Selenastrum
capricomutum.  Marine and estuarine organisms currently include
the sheepshead minnow, Cvprinodon variegatus: the inland
silverside, Menidia bervllina; the mysid, Mysidopsis bahia; the
sea urchin, Arbacia punctulata; and the red alga, Champia
parvula.  Organisms used should be disease-free, and positively
identified to species (ideally by an expert taxonomist).

Quality and Source of Test Organisms

When organism breeding cultures are maintained, the sensitivity
of the offspring should be determined in a toxicity test
performed with a reference toxicant at least once each month.  If
preferred, this reference toxicant test may be performed
concurrently with an effluent toxicity test.  The standard
reference toxicant test should be conducted using the exact
method for which the organisms are being evaluated.

Food Quality

Suitable foods must be obtained as described in the toxicity
testing methods manuals.  Limited quantities of reference food,
information on commercial sources of good quality foods, and
procedures for determining food suitability are available from
the Quality Assurance Branch, Environmental Monitoring and
Support Laboratory, U.S. Environmental Protection Agency,
Cincinnati, OH 45268.  The suitability of each new supply of food
must be determined in a side-by-side test in which the response
                                12

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 of test organisms fed with the new food is  compared with the
 response of organisms fed a reference  food  or a  previously used,
 satisfactory food.   Preparation of food should follow methods
 accepted and published.
Reference "Toxicants

Reference toxicants  are  standard  chemicals that  can be  used  to
evaluate test organism sensitivity,  laboratory procedures, and
equipment.  Their use allows  a  laboratory to compare the  response
of test organisms to a reference  toxicant under  local laboratory
conditions.
When a toxicity value  from a test with a reference toxicant does
not fall within the expected range  for the test organisms when
using standard dilution water  (i.e., reconstituted water), the
sensitivity of the organisms and the overall credibility of the
test system are suspect and should  be examined for defects, and
the health of the organisms questioned.  The test should be
repeated with a different batch of  test organisms.

Four reference toxicants are available to establish the precision
and validity of toxicity data generated by biomonitoring
laboratories; copper sulfate (CuS04),  sodium chloride (NaCl),
sodium dodecylsulfate  (SDS), and cadmium chloride (CdCl2).   The
reference toxicants may be obtained by contacting the Quality
Assurance Branch, Environmental Monitoring and Support
Laboratory, U.S. Environmental Protection Agency, Cincinnati, OH,
45268.  Instructions for their use  and the expected toxicity
values for the reference toxicants  are provided with the samples.
To ensure comparability of quality-assured data on a national
scale, all laboratories must use the same source of reference
toxicant and the same  formulation of moderately hard, synthetic
dilution water for freshwater tests and the same sea salt or HSB
for marine tests.
                                13

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Control Charts

A control chart often is prepared for each reference toxicant and
organism combination.  With such a chart the cumulative trend
from a series of tests can be evaluated.  The mean value and
upper and lower control limits are recalculated with each
successive point until the statistics stabilize.  The upper and
lower control limits are two standard deviations from the mean.
Outliers, which are values that fall outside the upper and lower
control limits, and trends of increasing or decreasing
sensitivity are readily identified.
                                14

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                     ASSESSING DATA QUALITY
Test Acceptability     '  -


Test acceptability depends upon test organism mortality  in  the

test controls.  It varies among organisms and tests.  For acute

toxicity tests,15 the control survival must be 90 percent or

greater for a valid test.  For valid freshwater chronic  fathead
minnow or Ceriodaphnia dubia effluent toxicity tests,0 control
       An acute toxicity test is a test of short duration where
the organism response is typically observed in 96 hours or less.
These tests are used to determine the effluent concentration,
expressed as a percent volume, that is lethal to 50 percent of
the organisms within the prescribed time period (LC^).  Where
death is not easily detected, such as with invertebrates,
immobilization is considered equivalent to death.  Static and
flow-through testing systems are used.  Static tests include
nonrenewal test where the organisms are exposed to the same
effluent solution for the duration of the test, and renewal tests
where the test organisms are exposed to a fresh solution of the
same concentration of effluent every 24 hours or other prescribed
interval.  A flow-through test typically uses a diluter system
and continuous feed of mixtures of effluent and diluent to a
series of test chambers to ensure that different organisms are
exposed continuously to different effluent concentrations
throughout the test period.

     c A chronic toxicity test is designed to  measure long-term
adverse effects of effluents on aquatic organisms.  The
organism's response is usually observed in 7 to 9 days, while the
test period itself can last from one hour to several days.  These
test are used to determine the more subtle effects of toxicants
such as adverse effects on survival, growth, reproduction,
fertility and fecundity, and the occurrence of birth defects
(teratogenicity).  These effects can be quantitatively expressed
in various ways, such as by determining the concentration at
which 50 % of the organisms show a particular adverse effect
(ECgo) ; or by observing the highest tested concentration at which
the organisms' responses are not significantly different
statistically from controls (the no observable effect
concentration, or NOEC); or by observing the lowest observable
effect concentration at which organisms' responses are different
statistically from controls (the lowest observable effect
concentration, or LOEC).

                                15

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survival must be at least 80 percent.  For the fathead minnow
larval survival and growth test, the average dry weight of the
surviving controls should equal or exceed 0.25 mg.  For the
Ceriodaphnia dubia survival and reproduction test, there should
be an average of 15 or more young/surviving females in the
control solutions..  For valid reference toxicant tests, control
survival growth and reproduction is the same as stated for the
definitive test.  For the marine short-term chronic tests with
sheepshead minnow, silverside, or mysid, control survival must be
equal to or exceed 80 percent in a valid test.  The sea urchin
test requires control egg fertilization of 70 to 90 percent.  The
Champia paryula test requires that control mortality does not
exceed 20 percent and that plants have an average of 10 or more
cystocarps.  Other specifications for test acceptability are
provided in test protocols.6'7'8
An individual test may be conditionally acceptable if
temperature, DO, and other specified conditions fall outside
specifications, depending on the degree of the departure and the
objectives of the tests.  The acceptability of the test will
depend on the best professional judgment and experience of the
investigator.  The deviation from test specifications must be
noted when reporting data from the test.
Precision
Precision is an expression of the degree of reproducibility of
results.  The ability of a laboratory to obtain consistent,
precise results should be demonstrated with reference toxicants
before measuring effluent toxicity.  The single laboratory
(intra-laboratory) precision of each type of test to be used in a
laboratory should be determined by performing five or more tests
with a reference toxicant.  In cases where the test data are
calculated in lethal concentrations (LC^) and associated
confidence intervals, precision can be described by the mean,
                                16

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standard deviation.,  and  relative  standard deviation  (percent
coefficient  of variation,  or  CV)  of the  calculated end  points  •
front the replicated  tests.  However,  in  cases where  the results
are reported in terms  of the  No-Observedr-Ef feet Concentration
(NOEC) and Lowest-Observed-Effect Concentration  (LOEC),  precision
can only be  described  by listing  the  NOEC-LOEC interval for each
test.  In this case, it  is not possible  to express precision in
terms of a commonly  used statistic.

A new statistical procedure,  an Inhibition Concentration (1C)
will allow CVs to be calculated on chronic tests.  CVs  can be
calculated for chronic tests  because  the 1C, like the LC, is a
point estimate derived from a mathematical model that assumes a
continuous dose-response relationship.   Specifically, the 1C is a
point estimate of the  concentration that would cause a  percent
reduction in a non-quanta1 biological measurement such  as
fecundity or growth.   Since the 1C is a  point estimate  rather
than a range, precision  can be described in standard statistical
terms such as mean,  standard  deviation,  and percent  coefficient
of variation or CV.
11
Other factors which can affect test precision include test
organism age, condition, and sensitivity; temperature control;
feeding; and type of dilution water used.   However, these
parameters are considered acceptable when the reference toxicity
data are within the acceptable range.

Accuracy
Accuracy is the nearness of a measurement to its true value.  In
a biological toxicity test, accuracy is enhanced with test
replication.  Testing protocols are designed with replication
sufficient to ensure that organism mortality or other effects
will be as close to the true value as practicable when dealing
with life sciences.  Using EPA-approved test procedures, regular
                                17

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and thorough laboratory inspections and audits, reference
toxicants, and performance evaluation checks will ensure the
highest degree of accuracy currently attainable in biological
toxicity testing.

However, the accuracy of toxicity tests cannot be determined.
This is because toxicity is a relative rather than an absolute
concept, since only organisms can "measure11 toxicity, and there
is no true or absolute reference organism.  Test results can be
compared, but accuracy, as defined by a deviation from a true
value, cannot be determined.12

Completeness

Completeness is the amount of data collected compared to the
amount intended to be collected or required.  Following EPA
testing protocol will ensure completeness of results.  According
to the protocol a valid test requires a specified number of
organisms to be exposed to a test solution under controlled
conditions in both the test and the control for the test.

Representativeness •

Representativeness is the extent to which the data collected
accurately reflect the population or group being sampled.  In
conducting biological toxicity testing, there are two areas of
representativeness concern:  One is in collecting the sample of
test solution to which the test organisms are exposed; the other
is the species of organism used for the test.  Methods of sample
collection are detailed in the EPA testing protocol.  A sample
collector must adhere to standard operating procedures in sample
collection, ensure that any sample collecting equipment is
operating properly, and ensure that the integrity of the
collected sample is preserved without dilution or contamination.
The collected sample must, to the greatest extent possible,
                                18

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represent the conditions that the collected sample was designed
to represent.  The other question relates to whether or not the
organisms chosen for testing represent the universe'of organisms
in the environment that may be at risk when exposed to the test
solution.  In this context, representative means the most
sensitive, and therefore the most protective of resident species.
EPA has taken great care as a result of years of research
experience to recommend particular organism species as test
organisms.  Considering the state-of-the-knowledge, the EPA test
protocol's recommended test organisms are representative of the
organism universe that they have been selected to represent.

Comparability

Comparability is the similarity of data from different sources.
Standard procedures for test solution collection, conducting the
test, and analyzing the resultant data must be observed by all who
are engaged in NPDES biological toxicity testing to ensure that
comparability of results is maintained.  Different procedures will
have different precision levels, thus invalidating a comparison of
results among laboratories.  EPA protocols on biological toxicity
testing are detailed and specific.  Strict adherence to these
protocols when conducting a test, along with the use of reference
toxicants and performance evaluation tests, alleviate many of the
comparability concerns that otherwise would occur.

Replication and Test Sensitivity

The sensitivity of the tests will depend in part on the number of
replicates, the statistical probability level selected, and the
type of statistical analysis.  The minimum recommended number of
replicates varies with the test and the statistical method used in
each protocol.  If the variability remains constant, the
sensitivity of the test will increase as the number of replicates
is increased.
                                19
                                                                 7Z.-3A

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                        REPORTING RESULTS

The report should detail specific information about sampling,
organism culture, and the test, including why It was performed,
where, when, and how.  Plant operations, source of effluent and
dilution water, test methods, test organisms, quality assurance
(i.e., physical-chemical measurements and organism response), data
analysis and test results should be discussed.  Facts should be
complete, accurate, and understandable.  Report format and
contents have been recommended.6

Good writing is a systematic recording of organized thought.  It
involves a clear, concise, orderly presentation of an
understandable message.  Quality assurance measures are as
important in report preparation as elsewhere in an investigation.
Generally, such quality assurance takes the form of report peer
review.  A review should establish that each sentence is clear,
technically accurate, and devoid of a dual meaning, and that no
unanswered questions about the toxicity test remain.  A toxicity
testing report should contain the necessary data, readily
accessible, for use in EPA data systems such as the Permit
Compliance System.  The report should be examined and reexamined
to prevent data management errors in transcription, expression of
units, and calculations.  The use of preprinted forms is helpful
because attention then is focused on specific data requirements.
Checking of data and calculations by an individual not associated
with the initial calculations is employed to minimize errors.
Reducing the number of people involved in data transfer can
minimize data management errors.
                                20

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                             REFERENCES
8
10
11,
12
Policy and program requirements to implement the mandatory
quality assurance program.  EPA Order 5360.1, April 3, 1984.

Development of water quality-based permit limitations for
toxiq pollutants; national policy.  49 FR 9016, Mar 9, 1984.

Technical support document for water quality-based toxics
control. U.S. EPA, Washington, D.C. EPA-440/4-85/032, 1985.

Guidelines and specifications for preparing quality assurance
program plans. Quality Assurance Management staff,  U.S. EPA,
Sept 1987.

Preparing perfect quality assurance project plans.  Risk
Reduction Engineering Laboratory, Cincinnati, OH, EPA/600/9-
89/087 October, 1989.

Methods for measuring the acute toxicity of effluents to
freshwater and marine organisms.  1985.  U.S. EPA.
Cincinnati, OH, EPA-600/4-85/013.

Short-term methods for estimating the chronic toxicity of
effluents and receiving waters to freshwater organisms. 1989.
Second Edition.  U.S. EPA, Cincinnati, OH, EPA-600/4-89/001.

Short-term methods for estimating the chronic toxicity of
effluents and receiving waters to marine and estuarine
organisms.  1988. U.S. EPA, Cincinnati, OH EPA-600/4-87/028.

Handbook for analytical quality control in water and
wastewater laboratories.  1979.  U.S. Environmental
Protection Agency, Cincinnati, OH, EPA-600/4-79/019.
Methods for chemical analysis of water and wastes.
1983.  U.S. EPA, Cincinnati, OH, EPA-600/4-79/020.
Revised
Guidelines establishing test procedures for the analysis of
pollutants under the Clean Water Act; Proposed Rule with
Request for Comments.  51 FR 50215, December 4, 1989.

Supplement to "Short-term methods for estimating the chronic
toxicity of effluents and surface waters to freshwater
organisms."  U.S. EPA, Washington, D.C.  EPA-60014-89/001.
                                21

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V
           VII..ANNUAL  DOCUMENTS  AND SHORT-TERM  INITIATIVES
                                                                         > "2-^

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                                                           VII.1,
                                                           VII.2;
VII.1. "EPA Agency Operating Guidance  - FY 1986-1987", dated
        February 1985.**  EXPIRED.  Effective through September
        30, 1986.
VII..2. "FY86 Guidance For Oversight Of NPDES Programs", dated
        June 28,  1985.**  EXPIRED.  Effective through
        September 30, 1986.
                                                                  225'

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                                                                    VII.3,
"NATIONAL MUNICIPAL POLICY ENFORCEMENT INITIATIVE", dated August 9, 1985.
Attachments excluded.

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£2.40

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           niiTrX STATES £i\V'rwi>!Mr.i>iTAL rrvOTECTiUN AGLJCY
                         WASHINGTON. D.C, 20460
                                 91985
                                                        OFFICE OF
                                                         WATER
 MEMORANDUM
 SUBJECT:   National  Municipal  Policy  Enforcement  Initiative
                                         A       :  • .    .-'
 FROM:
TO:
J. William Jordan, Director
Enforcement Division (EN-338)^

Glenn L. Unterberger
Associate Enforcement Counsel
  for Water  (LE-134W)

Regional Water Management Division Directors
Regional Counsels
Regions I-X
                                                           X
      In  order  to  focus nationwide attention on the July 1, 1988
 compliance  deadline for POTWs, we are preparing an enforcement
 initiative  for the National Municipal Policy (NMP).  We.expect that
 grouping a  number of well-selected cases into an enforcement
 initiative  will advance substantially the Environmental Protection
 Agency's (EPA)  efforts to obtain compliance by the deadline.  We
 seek  your participation in this initiative.  The filing of cases  in
 this  initiative is tentatively, scheduled for the first quarter of
 FY 1986.  The  purpose of this memorandum is to request a list of
 candidates  from all Regions for the enforcement initiative.  Based
 on the information available at Headquarters, we have generated a
 preliminary list  for your review and revision.  This memorandum also,
 describes the  criteria to be used in selecting candidates and a
 proposed schedule for implementing the NMP enforcement initiative.

      An  NMP enforcement,initiative was discussed at the National
 Branch Chiefs'  meeting in May of this year and in subsequent
 conference  calls with all Regions participating.  At the Branch
 Chiefs' meeting, all Regions were asked by Rebecca Hanmer to develop
 a preliminary  list of enforcement initiative candidates.  To date,
 we have  received such lists from two Regions.  Several other Regions
 are still actively preparing these lists, since in many cases,
Municipal Compliance Plans (MCPs) were not due to be submitted until
June  of  this year.  if we are to have a successful enforcement
 initiative  which demonstrates EPA's resolve to hold to the 1988
compliance  deadline,  we must be prepared to back this resolve
through aggressive enforcement.   The enforcement initiative will
clearly demonstrate the importance the Agency places on municipal
compliance.

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                                       _ 2 -
        Purposeof the Initiative

            The purpose of this initiative is to send a message to both
        those municipalities already committed to a July 1,  1988 schedule*
        and those municipalities which have not, that EPA is serious about
        the deadline.  State inventories have identified many POTWs which
        need construction to comply with permit limits.  While many of these
        municipalities have agreed to a schedule.requiring compliance with
        the July, 1, 1988 deadline, it appears that a significant number have
        not submitted schedules and that a number of POTWs plan to submit
        schedules which extend beyond July 1, 1988.  If EPA is to maintain
        a credible and evenhanded approach to all municipalities, we must be
        prepared to address those municipalities where the deadline will not
        be met or, as in many cases, is not even being taken seriously.

        Scope of Enforcement initiative

             Under this initiative the following factors should be applied
        to select POTWs for action:

          -  The POTW is currently in violation of permit requirements.

             Major construction is needed to achieve compliance.

          -  The municipality has not submitted a required MCP, has
             submitted a deficient MCP, or has included a schedule which
             extends beyond the July 1, 1988 deadline.  It is preferable tc
             include POTWs which appear to be capable of meeting the
             deadline so we can reinforce its importance.

          -  It should be clear for each selected POTW what effluent limits
             are required; therefore, any 301{h), revised WQS, or redefined
             secondary issue should already be resolved.

          -  Selected facilities should be major permittees and, wherever
             possible, be larger municipalities to send as strong a signal
             as possible (i.e., 10 MGD and greater).

          -  All municipalities which have received State administrative
             extensions beyond the July 1, 1988 deadline should
             automatically be considered for inclusion in this initiative.

             Municipalities where it may be physically impossible to
             complete construction by July 1, 1988 should not be excluded
             from consideration.  All such POTWs must be submitted for
             judicial action if the schedule extends beyond July 1, 1988,
             though not necessarily under this initiative.

          -  Municipalities where there is uncertainty as to the financial
             capabilities for construction should not be excluded.
             Financial experts funded through HQ are available to augment
             Regional analysis of the financial situation of municipalities

          -  Municipalities which have proven to be recalcitrant should
             considered first.
->".

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     This initiative is intended to help ensure that EPA is taking
serious enforcement action against facilities which have not
received Federal construction grant funding.  Nevertheless, EPA
should also be taking enforcement action against POTWs which have
received grants or are in the grants process consistent with the
priorities set out in the National Municipal Policy and the April
1984 implementation guidance.                 .

     As a first step in helping to define the universe of possible
candidates for this initiative, we have completed a search of the
national Permit Compliance System (PCS) to identify those POTWs
which, based on effluent data, appear to need major construction of
treatment facilities.  The POTWs with the most consistent and
largest effluent violations were then cross-referenced with the
national inventory of NMP POTWs submitted by each Region to
identify those which have not committed to an acceptable compliance
schedule.  It appears from this preliminary review that there are a
number of good candidates in all Regions for the NMP initiative.
Since the PCS does not contain effluent data for all facilities in
many Regions, the attached list should in no way be considered a
complete list of possible candidates.  Each Region should review
the list and verify possible candidates and add any other
candidates which may be appropriate to consider.  If any of the
candidates should not be included because the State will bring the
judicial action before December 15, 1985, then indicate so and give
an approximate date for the State action.  Candidates should not be
rejected unless the State filing is projected prior to the Federal
filing date.  Ultimately, we are looking to file at least a couple
of the best cases in each Region as a part of this initiative so as
to send a truly national message to the POTW community.
Schedule for the NMP Enforcement Initiative

1.  Regions review attached list, making
    additions.and deletions, and submit
    preliminary list to Headquarters OWEP.

2.  Regions review submitted MCP schedules
    as they come into identify final
    candidates.  Submit list of probable
    final candidates.

3.  Submit litigation reports for final
    candidates to Headquarters.

4.  Approximate DOJ filing date.
August 23, 1985
September 15, 1985
November 1, 1985
December 15, 1985
     We will be working closely with the Department of Justice to
assure that the NMP enforcement initiative cases are quickly moved
through the referral system.  Where effluent violations have
occurred, it will be particularly helpful to make sure that the
necessary documentation, such as DMRs,  are assembled to include in
litigation reports and that inspections are conducted where
necessary to confirm the extent of the  violations and the
compliance measures likely to be needed.

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     Any problems which will need expert contractor assistance
resolve, such as physical or financial capability questions,
should be identified as early as possible.   Regions need not  have
the final answers from the contractor review of  the financial or
physical factors before submitting referral packages to Head-
quarters.  Since it is expected that this support will be needed in
many of' the cases, it will probably be an ongoing process before
and after filing.  The contact person for this assistance is  Brian.
Maas of the Enforcement Support Branch (FTS 475-8322).

     We realize that the above schedule will require a significant
commitment from Regional Water Programs and Regional Counsels
Offices, as well as Headquarters EPA and Department of Justice
Offices; however, this initiative is critical to accomplishing the
major goals of the National Municipal Policy.  If you have any
questions or comments on the enforcement initiative, please contact
either of us.  If you desire any additional information on the
attached lists call David Lyons, Chief of the Enforcement Support
Branch (FTS 475-8310) or Brian Maas.  Please submit the preliminary
list to David Lyons.  Caroline Poplin (FTS 475-8184) will serve as
the OECM staff contact.
Attachment
cc: William Whittington

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                                                       VII.19,
"CWA Civil Judicial and Administrative Penalty Practices Report
for FY 89.

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C. 20460
                                                       OFFICE Cr
                                                    ENFORCEMENT AND
                                                   COMPLIANCE MC
 MEMORANDUM

 SUBJECT:
CWA Civil Judicial  and Administrative Penalty Practices
Report for FY89
 FROM:
 TO:
Robert G. Heiss^s/ <^^,
Associate Enforcement  Counsel
  for Water         ''

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

Gerald A. Bryan, Director
Office of Compliance Analysis
  and Program Operation
      Attached is the Clean Water Act Civil Judicial  and
Administrative Penalty Practices Report covering cases concluded
in  FY89.   The penalty numbers represent the decree or order
amount without reduction to present value for those  penalties to
be  paid over extended periods.  If you have any questions
regarding this report please contact Kathy Summerlee of the
Office of Enforcement and Compliance Monitoring at 382-2879 or
Ken Keith of the Office of Water Enforcement and Permits at 245-
.3714.

      We look forward to receiving the final, agency-wide report
when  it is completed.

Attachment

cc:   George Alderson
      Ken  Keith
      Rich Kozlowski
      Kathy Summerlee
                                                       Prints: 2:*.'.;: •--.!..•

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                         CWA CIVIL JUDICIAL AND ADMINISTRATIVE
                           PENALTY PRACTICES REPORT FOR FY89
                1.   Use and Level of Penalties
           •'*•«*••  'This -report • summarizes*thwniseawid«l«vel-S'O£-civil -judicial
           and administrative penalties in FY89 in cases concluded under the
           Clean Water Act's National Pollutant Discharge Elimination System
           ("NPDES") program.

                Section 309(d) provides that any person who'violates certain
           enumerated sections of the Clean Water Act, any NPDES or Section
           404-permit condition or limitation implementing any one of those
           enumerated sections, any requirement in a pretreatment program,
           or any EPA-issued administrative order, shall be subject to a
           penalty of $25,000 per day for each such violation.  Prior to
           enactment of the Water Quality Act (WQA)  in February 1987, such
           violations were subject to a penalty of $10,000 per day per
           violation.

                Section 309(d), as amended by the WQA of 1987, also lists
           criteria which the court must consider in determining the amount
           of the civil penalty.  Specifically, the court must consider "the
           seriousness of the violation or violations, the economic benefit
           (if any) resulting from the violation, any history of such
           violations, any good-faith efforts to comply with the.applicable
           requirements, the economic impact of the penalty on the violator
           and such other matters as justice may require."

                The authority to seek administrative NPDES penalties is
           found in Section 309(g) of the Act.  Prior to enactment of the
           WQA in 1987, the Agency did not have authority to seek
           administrative penalties.  The WQA authorizes EPA to institute
           Class I or Class II administrative penalty actions.  In Class I
           actions, EPA may seek penalties of up to $25,000, at a rate not
           to exceed $10,000 per violation.  In Class II actions,  the
           maximum is $125,000, also assessed at a rate not to exceed
           $10,000 per day.  Class II penalty proceedings must conform to
           the Administrative Procedures Act.  EPA issued guidance on
           administrative penalty orders in August 1987, and Regional
           Offices  began imposing penalties shortly thereafter.

                For purposes of settlement, penalties are calculated
           according to EPA's February 1986 clean Water Act penalty policy.
           An addendum to the policy for the calculation of administrative
           penalties was issued in August 1987.  Essentially, the policy
           requires the recoupment of economic benefit and a gravity
           component.  Adjustments are authorized for inability to pay and
           litigation considerations.  The economic benefit is typically
           calculated using EPA's BEN computer software program.
-7404

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      2.
     Statutory Chances to Penalty
      There have been no changes to the pe.-.alty authorities under
 the Clean Water Act since the WQA of 1987.
3;  • Possible Irif Inenees- -ofi -Use
                                                   Pena-lt-ies
      There are several factors which may have affected t.;e amount
 of penalties the United States has received in settling or
 litigating Clean Water Act cases in FY89:

           a.    For the second full year,  the availability of
 administrative penalty authority,  pursuant to the WQA of 1987;

           b.    The Clean Water Act settlement penalty policy
 which,  absent ability to pay or litigation considerations,
 requires recoupment of economic benefit and a gravity component?

           c.    Use of the BEN computer model to calculate
 economic benefit,* and

           d.    The agency's emphasis on enforcement  of the
 National Municipal Policy and the  pretreatment regulations.

      4.    Use of Penalties

      Ninety-eight percent of the judicial  cases concluded in FY89
 included a penalty.*  See Table 1.   This continues the post-1985
 •trend of concluding virtually all  Clean Water Act civil judicial
 cases with a  penalty.   See Figure  1 (Use of Penalties in CWA
 Judicial Cases FY75-89) .

      Virtually all administrative  penalty  actions in FY89 were
 concluded with a penalty.   See Table 4.

      5;    Judicial Penalty Profile

      The penalties which establish the data base for the judicial
 penalty  profile include only upfront,  cash penalties payable to
 the United States.   -

      Only entered consent decrees  or judicial  decisions are
 counted  as concluded cases in the  data base.   Multiple complaints
 consolidated  in one consent decree or decision are counted as one
 concluded case.
* The one case concluded without a civil penalty was Ashland in
Region III which was also the subject of a criminal case netting
a penalty of over 2 million dollars.

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          a.   Number of Cases

          The total number of judicial cases concluded in FY89
 (including those concluded without a penalty) was 56.  This is a
drop * to approximately the—level* reporCed"£«r-FY86. • • -gee- Figure 1.

          b.   Total Penalties

          Total penalties for all concluded judicial cases in .
FY89 was $9,744,000.  See Table 1.  See Figure 2 (Clean Water Act
Penalties By Year - Judicial Cases).

          c.   Typical Penalties

          The median penalty for all concluded judicial cases in
FY89 (including those concluded without a penalty) was $50,000.
See Table 1.  This is an increase from FY88 median of $37,500 and
a new high point for Clean Water Act NPDES Cases.  See Figure 3
 (Median Penalties - Clean Water Act - All Concluded Judicial
Cases).

          d.   Highest Penalties

          The highest penalty in FY89 was negotiated by Region V
in a concluded case against Koch for $1,540,000.  The next
highest penalty was negotiated by Region VIII against
Metropolitan Denver Sewage Disposal District for $1,125.000.  See
Table 3.

          e.   Comparison of Regional Uses and Levels of Judicial
               Penalties

          Two Regions concluded cases with penalties of over one
million dollars in FY89.  Region V obtained the largest amount of
penalties, $3,389,000.  Regions III, IV, VI and VIII obtained
penalties of over $1,000,000 total.

     In terms of the number of cases concluded, Region IV
concluded the most cases (15) followed by Region VI (9).   See
Table 3.             .

     6.   Administrative Penalties Profile

     The penalties which constitute the data base for the
administrative penalty profile reflect upfront, cash penalties
which are to be paid to the United states generally within 30 to
60 days.  In a few instances payment terms extended beyond 60
days without interest payment.  Since discounting these few
extended payments to present value would not change the data
significantly, they have not discounted.

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                                                VII - 4 through 12
VII.  ANNUAL DOCUMENTS AND SHORT-TERM INITIATIVES
        4. "A Guide To The Office Of Water Accountability System
            And Mid-Year Evaluations", dated September, 1985.**
            EXPIRED.  Effective through September 30, 1986 only.

        5. "EPA 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.  "suide 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

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                                               VII.13
"FY 1989 Office of Water Operating Guidance," dated Hay, 1988.
Selected  Portions ONLY.
                                                        2Z5?-

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          United States
          Environmental Protection
          Agency
             Office of
             the Administrator
             Washington, D.C.
March 1988
oEPA
Agency
Operating Guidance
          FY1989
                                            -225":

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Office of
Water

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                        TABLE OF CONTENTS
I..   ASSISTANT ADMINISTRATOR'S OVERVIEW

     A. Program Directions and Priorities
     B. Managerae:.t: Principles
     C. Control  ng the Discharge of Surface Water
        Toxicants
     D. State Clean Water strategies
     E. Flexibility-Accountability

II.  ENVIRONMENTAL PROBLEMS

A.   PROTECTING OUR SOURCES OF DRINKING WATER

     1. Strategy
     2. Indicators
     3. Activities

        a. Public Water System Supervision
        b. Ground-Water Protection
        c. Underground Injection Control

8.   PROTECTING CRITICAL HABITATS

     1. Strategy
     2. Indicators
     3. Activities

        a. Ocean Disposal Site Permitting and Discharge
        b. Near Coastal Waters/National Estuary Program
        c. Chesapeake Bay
        d. Great Lakes
        e. Lake Management
        f. Wetlands

C.   PROTECTING SURFACE WATERS

     1. Strategy
     2. Indicators
     3. Activities

        a. Water Quality Standards
        b. Water Quality Monitoring and Analysis
        c. Water Quality Management Planning
        d. Nonpoint Source
        e. NPDES Permitting
        f. NPDES Enforcement
        g. Pretreatment
 2
 3
 5

 6
 7

 a

 a

 a
10
10

10
14
17

20

20
22
22

22
24
27
28
30
31

34

34
35
35

35
37
39
40
41
44
45
                                                             -7.

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                               -2-

                  TABLE OF CONTENTS (CONTINUED)
          .
        Sat.
C.  PROTECTING SURFACE WATERS (CONT.D)
                                                           \
        h. NPDES State Program Approval, Review and       48
           Oversight
        i. Municipal Wastewater Transition to State/      49
           Local Self-Sufficiency
        j. Construction Grants Management                 51
        k. POTW Technological Evaluation and              52
           Information Transfer
        1. Municipal Wastewater Infrastructure            54
           Protection

III. REGIONAL INITIATIVES                   •              55


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        FY 1989 WATER PROGRAMS AGENCY OPERATING GUIDANCE
!•   ASSISTANT ADMINISTRATOR'S OVERVIEW

The Water Programs portion of the FY 19Q9 Operating Guidance
provides national direction to EPA, States and the regulated
community in carrying out programs mandated under Federal water
protection statutes.  These statutes include: the Safe Drinking
Water Act (SDWA), the Clean Water Act (CWA, as newly amended
by the Water Quality Act of 1987) and the Marine Protection,
Research and Sanctuaries Act (MPRSA).  The Agency and the States
also implement programs to protect groundwater quality through
authorizations under several different statutes.

The Office of Water (OW) uses a management accountability system
to set priorities, define performance expectations, and track
and assess Regional and State performance.  The Office of Water
Accountability System (OWAS) includes the OW portion of the
Guidance, the accompanying SPMS measures, the OW program eval-
uation guide with quantitative and qualitative measures, and the
OW mid-year Regional evaluations.  As part of the mid-year process,
the Regions provide the OW Assistant Administrator with their
projected operating strategy and plan for FY 1990, including an
overview of Regional and State priorities and their relationship
to national priorities.  This is done before FY 1990 commitments
are made to set the context for negotiation  -f State work pro-
grams and those commitments.  The Regions p*->sent their plans at
the time of the senior management review fo» the FY 1989 mid-year
evaluation and, as described in Section III, negotiate specific
Regional projects prior to the beginning of «-he fiscal year.

Part I of this Guidance outlines the major program directions
for Water Programs in FY 1989, and describes three major program
concerns: controlling the discharge of toxic pollutants into
surface waters, developing State Clean Water Strategies, and
ensuring program accountability while providing Regions and
States with flexibility to address their particular concerns.
Part II contains specific program guidance and priority activi-
ties for the water programs organized by three problem areas
around which OW has structured its FY 1989 program planning.
Part III provides the process through which Regions negotiate
Region-specific initiatives for FY 1989.

Activities with associated SPMS measures are denoted by [SPMS]
appearing at the end of the activities.  Additionally,  in line
with the Agency format, activities increased f^om  the FY 1988
Operating Guidance are indicated by a plus  (+) in  the left  margin,
new activities are indicated by the letter  (8), and decreased
activities are indicated by a dash (-).  Ho notation indicates
that the activity is the same as in FY 1988.

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                             '-2-
A.   PROGRAM-DIRECTIOMS AND PRIORITIES
           **-..
FY 1989 wills: be critical for Water Programs.  States and EPA
will be meeting near-term deadlines and requirements for imple-
ment ing programs to address both newly identified- and long
standing problems as demanded by the Water Quality and Safe
Drinking Water Acts as well as continuing to operate traditional
base programs.  Water Programs' approach for dealing with these
challenges is to focus our efforts to areas of greatest risk,
and where the results of our efforts will reap the greatest
benefit.  In 1989, Water Programs will focus on three problem
areass

1.  Protecting Drinking Water Sources

     FY 1989 is critical to the Drinking Water Program as it
implements the first new substantive provisions -elated to the
1986 Safe Drinking Water Act amendments including enforcement of
the first new volatile organic compound and microbiological Maximum
Contaminant Levels (MCLs), State adoption of authority to imple-
ment the surface water treatment rule (for filtration), implementa-
tion of the revised public notification requirements, initiation J
of the one-year requirement to assess all 15,000 surface water   '
systems, and enforcement of the ban on lead-content plumbing
materials and lead public*notification.

     The Drinking Water Program will continue developing the
regulatory framework for controlling drinkin? water contaminants
by satisfying the statutory schedule for reg \atory development
as well as a continuing emphasis on enforcin  existing drinking
water standards.  EPA will be increasing its effo*--.s to build
additional State capacity to implement new regulatory require-
ments, including mobilizing the regulated community for
voluntary compliance with the new requirements.

     The Water Program continues to believe that wellhead protec-
tion activities are a key component in States' protection of wells
which supply public water systems.  Therefore, we see a major
emphasis on providing technical assistance to States in developing
either wellhead protection programs or other wellhead protection
initiatives." Water Programs will increase assistance to States
as they review and refine their groundwater strategies and develop
a more comprehensive approach to groundwater protection, including
application of classification guidelines, and development of
preventative approaches.

     Finally, to protect our underground sources of drinking water,
a key FY 1989 objective is more effective compliance and enforce-
ment of the UIC program, including emphasizing approaches to
control "high risk" injection practices into Class V wells which,
in some States, are not effectively regulated now for most
subclasses (e.g., agricultural drainage wells) and many of which
    ppse serious threat to underground water  supplies.

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                               -3-
 2.   Protecting Critical Habitats                   .
            "•%,-   ...
 In line witlfF the legislated mandates and our increasing con-
 cern for high risk, vulnerable ecosystems, including wetlands,
 near coastal waters, estuaries, and lakes, EPA is strengthening
 its programs for developing anticipatory approaches in identifying
 and resolving the most serious wetlands losses; expediting
 Section 404 policy development; and enhancing State and local
 wetlands protection capability.  In protecting our near coastal
 waters and oceans, we are strengthening EPA management
 support to an expanding estuary program.  We recognize that
 toxics and nonpoint source (UPS) pollution are major contributors
^to problems in these critical areas.  Therefore, we are increas-
 ing technical and programmatic support to State and local
 officials by documenting and disseminating successful control
 approaches through technology transfer from the near coastal,
 estuary, Chesapeake Bay and Great Lakes programs.

 3.   Protecting Surface Waters

 In this area we propose to accelerate the development and adop- ;
 tion of water quality standards, primarily for toxic pollutants,:-*
 by increasing EPA assistance to States, increasing EPA review of
 State standards and tracking State progress; continue investi-
 gating regulated and unregulated industries known to and/or
 suspected of discharging significant amounts of highly toxic
 pollutants, developing requisite regulations; review Individual
 Control Strategies (ICSs) which .(under the W»ter Quality Act
 of 1987) are to be submitted by February 19<. ; focus the NPDES
 program on implementing these ICSs in NPDES permits and pretreat-
 ment programs where States/EPA have identified toxicity problems
 and data exist to establish water-quality based controls; increase
 emphasis on the regulation of stormwater discharges and assure
 progress in establishing sludge management programs; and maintain
 enforcement levels with greater emphasis on post-BAT/water
 quality requirements.   Recognizing the critical role of the
 monitoring program in these activities, we propose to expand our
 surface water data base to identify hazardous substances; and
 develop exposure analyses using a risk-based, geographic approach.
           •A
 Finally, we, plan to continue the development and updating of water
 quality criteria,  including investigation of improved biological
 assessment methodologies (bio-criteria).

 3.   MANAGEMENT PRINCIPLES

 The following management principles will guide Water Program
 activities in meeting the challenges of FY 1989.

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                              -4-
1.  Enlarging the EPA/State Partnership
           *»•
           T" •"                    • '
Water Programs will work actively to create a dialogue for parti-
cipation among Federal, State, and local agencies-, industry,
environmentalists, and the public.  In particular. Water Programs
will take a leadership role in establishing networks with other
Federal agencies in stimulating coordination among a variety of
State and local agencies, and in encouraging public participation
in the sharing of information, and the development of 'consistent,
supportive protection approaches.

2'  Integrating Water Program Responsibil.ties

As States implement their State Clean Water Strategies (SCWS)
in FY 1989, the Water Programs will.take a leadership role
in encouraging Regions and States to coordinate their many
CWA program responsibilities, to set priorities to target water
resources for immediate action, and to identify the most impoi—
tant water resources for future controls.  We will be watching
for SCWS applications to CWA programs in those States that did   ••
not choose to participate in the 1983 process, for potential use 4
in Drinking Water Programs, as well as for cross-media applica-  "
tions that will improve the effectiveness of environmental
programs.

3.  Targeting Based On Comparative Risk Asse.sments

In .setting priorities and managing resources  the Water Programs
will meet legislatively mandated requirement  and increasingly
focus on high risk areas with the greatest potential environmen-
tal benefits and witn feasible solutions in terms of the available
tools and resources.

4.   Indian Tribal Participation

Both the Safe Drinking Water Act Amendments of 1936 and the Water
Quality Act of 1987 authorize EPA to treat Indian tribes which
meat identified criteria as States for various pollution control
accivitiea*.. By the beginning of FY 1989, regulations will be in
effect enabling eligible tribes to receive grants and contractual
assistance under the Safe Drinking Water and Clean Water Acts
(including municipal wastewater treatment) and to assume public
water system and underground injection control enforcement
responsibility.  Other regulations are anticipated in FY 1989
including establishment of tribal water quality standards, delega-
tion of NPDES permitting activities, and assumption of the Section
404 dredge and fill program.  For these programs, and other
pertinent activities, the word "State" includes tribes as appro-
priate.

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                              -5-
C.   CONTROLLING THE DISCHARGE OF TOXIC POLLUTANTS INTO SURFACE
     WATERS *£•:,
            •^?7*7 "         '
Given the .. vifci of public attention to potential environmental
and public health impacts, as well as the WQA amendments, the
A  .-ncy's highest CWA priority in FY 1989 continues to be protecting
the nation's surface waters from point source discharges,, especially
hazardous and toxic pollutants.  By February 4, 1989, Section
304(1) requires States to devel ? lists of impaired waters,
identify point sources and amounts of pollutants they discharge
•  .it caus? toxic impa- s, and develop individual control strategies
(ICSs) fc- each such i.,int source.

The general effect of 5304(1) is to focus national surface water
 jality protection programs immediately on addressing known wate.
quality problems due entirely or substantially to point source
discharges of S307(a) toxic polluters.  Controls for these
pollutants must be established as soon as possible, but no later
:han the statutory timeframes set fortn in 5304(1).  However, EPA
 insiders the WQA statutory requirements only one component of
 ie ongoing national program to control toxics.  EPA will require •;
 il known water qua'..-y problems due •  any pollutants to be      <
controlled as soon ~» possible, givi ; the same priority to       -
controls for non-i  (a) pollutants as'for controls where only
5307(a) pollutants are involved.  Such problems include any
violation of State numeric criteria for any pc'.lutant known to
cause toxic effects and any violation of a St-.-e narrative water
quality standard the: prohibits instream toxictty due to any
pollutant (including chlorine, ammonia, and w- -le effluent
toxicity) based on ambient or effluent analys  -.

States are required by S3"3(c)(2)(3) t. adopt numeric criteria  In
water quality standards (WQS) for all the toxic pollutants listed
pursuant to S307(a) where criteria have been published and where  the
the discharge or presence of those toxic pollutants can reasonably
be expected to interfere with designated uses.  These criteria
are to be numeric, or, where numeric toxic criteria are not
available. States must adopt toxics criteria based on biological
monitoring or assessment lethods.  While this mandate may  oe met
by traditional in-stream ,WQS, States may comply by adopti-.g a
procedure to-be applied to the narrative water quality criterion,
which is used to calculate numeric criteria to use as the  basis
for deriving WLAs/TMDLs and NPDES permit limits.

Under the WQA, States must adopt  numeric criteria  in WQS by the
end of this triennial review period (FY 1990).  Where a,State
does not adopt toxic chemical-specific criteria,  it  is EPA policy
that States must be able to demonstrate that the particular toxic
pollutant is not relevant  Because it  is not present  in the waters,
or, if present, is not interfering with attaining  uses, and
new/existing dischargers are not  likely to  lead to  interference
with attaining the uses.  As part of  this triennial  process,
                                                                      „>•/

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                              -6-
States will &lso upgrade their anti-degradation pr  :rams to
protect existing high quality waters, and will adopt: effective
whole effluerit toxicity control programs.

Section 304(1) requires states to develop and submit to SPA lists
of impaired waters.  In FY 1989, States will refine and expand
these lists, submitted initially to EPA in FY 1988, in order to
fleet the statutory deadline for their final submission.  S304U)
also requires States to establish individual control strategies
(ICSs) by the statutory deadline to reduce the discharge of toxic
pollutants from each identified point source.  Controls will be
established as effluent limits in NPDES permits that assure, in
combination with existing nonpoint source controls, the attainment
and maintenance of applicable WQS for toxic pollutants and toxicity.

The immediate emphasis of 5304(1) and the national program for
toxics control requires States and EPA to address problems
identified through review of existing and readily available data.
However, States and EPA Regions will continue to collect new
water quality data to assure that changes in water quality are
identified and any gaps in existing data are filled to provide a :
reasonable basis for identifying and solving cases of water      •
quality impairment.  Revised State monitoring strategies will
probably be necessary to address toxic pollutants and nonpoint
source information needs-in a cost-effective manner, based on
EPA's Surface Water Monitoring strategy.

0.   STATE CLEAN WATER STRATEGIES

In FY 1988, EPA encouraged States voluntarily to develop State
Clean water Strategies (SCWSs) to set forth their priorities for
action over a multi-year period, and to provide a basis for
targeting their water pollution prevention and control efforts
on water resources they determined to be most valuable and/or
most threatened.   In developing these SCWSs, States chose a
format and scope of coverage that best suited their particular
needs—so long as  the final management plan was multi-year and
recognized the interconnections among water programs.  The nature
of the final- State management plans, therefore, would vary depend-
ing upon whether a State elected to use a comprehensive, inte-
grated approach or a more traditional programmatic  approach to
convert its concepts into a multi-year strategy.

Where States took  advantage of  this opportunity,  FY 1989 will be
the first year for implementation of these multi-year management
plans.  As  the plans vary, so will the nature of  the  FY 1989
implementation activities.  States that  adopted the more tradi-
tional, programmatic approach will be  implementing  the  first
round of actions set forth in the multi^year  plan,  and may want
to strengthen further their public  interest  coalitions  in  an
effort to generate State  funding  needed  to  carry  out  specific
programmatic activities such  as  nonpoint source  pollution
control.  Where  States opted  to  focus  more  broadly across
programs,  implementation  activities  may  involve  focusing  a
      a*ir>n nf »-ha fr»r»l-s  And  resources  of  several oroqrants on

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protecting and restoring specific areas of concern, such as
estuaries, near coastal waters, special groundwater areas,
or wetlands.- PY 1989 might also be a year in which these States
work to burla .a more Regional/local base of support for action
and funding?^ for these geographic-based initiatives.

As States meet the February ~>, 1989, statutory deadline for
activities.under 304(1) of the Clean Water Act, they will update
their SCWSs  to complete integration of key long-term activities
that will be necessary.to fully implement the surface water
toxics control provisions of the law.  These changes may include
expanding and/or setting priorities for new water quality moni-
toring for toxics, as necessary; and collecting new data where
current data are not adequate to assure problems have been
identified.  States may also choose to update other aspects of
their SCWSs as a result of new information.

To assist States in carrying out their SCWSs, EPA Regions will
work with States to coordinate program requirements and to provide
incentives to states to implement their risk-based approaches
to targeted water resources.  In addition, in FY 1989 EPA
Headquarters will promote transfer of information and ideas
generated by States that developed SCWSs in FY 1988.  EPA expects
that these individual State experiences will provide a body of
information that may be useful to other States that decide to    :
develop multi-year plans for water programs based on a targeting
and ranking exercise.  EPA Headquarters will work with the States
to package this information, and to provide  i-site peer group
expertise to new States that may benefit.  .  A will also consider
tne usefulness of this approach in other wat r activities and
programs, particularly activities under the  ife Drinking Water
Act.

E.   FLEXIBILITY/ACCOUNTABILITYt  NATIONAL CONSISTENCY VS.
     REGIONAL/STATE NEEDS AND PRIORITIES

The 1987 Water Quality Act (WQA) ratified existing surface water
programs and set forth a number of new activities and initiatives
to address emerging water pollution problems.  Soon after enact-
ment, EPA and the States agreed they would strive to meet the
statutory goals, requirements, and deadlines of the Act to the
fullest extent possible.  In doing so, EPA and the States also
agreed they/'would pursue with vigor both the new initiatives
under the 1987 WQA and the ongoing programs, priorities, and
responsibilities of the traditional CWA programs.  This has come
to be Known as "maintaining the base program," which means
that, as we move forward with new and/or expanded water quality
management programs.that have not been sufficiently funded (such
as protection of estuaries and nonpoint source control in
general), we do whatever is necessary to assure that the water
quality gains already made through the existing (largely
technoiogy-oased) point source controls are maintained.  The

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                               -8-
fundamental-iisaue at debate is one of flexibility versus
accountability or the degree to which Regions and States do less
in the bas*£pjeogran in order to account for new activities.
           •&•:':•'                                  •       '
In response to the need to provide Regions and States with a
vehicle to allow such flexibility to occur, states were
encouraged Co develop State Clean Water Strategies (SCrfSs) as
one process for setting out a plan that would give EPA an
opportunity to make a reasoned judgment whether a State's
alternative program made sense even though certain activities
did not take place (see section on SCWS).  In addition, EPA
and the States will work together to explore other ways to
improve the balance between accountability and flexibility,
including:

*  Ways to increase efficiencies/improve effectiv .\eaa  in*
   operation of the base program;

*  Ways to make better use of Agency/OW accountability  systems
   to provide both the national consistency Headquarters seeks
   and the flexibility Regions and States desire; and

*  Ways to improve State fiscal capacity over the longer-term,
   accompanied by better use of performance-based grants.

EPA and the States will .wo*-k together on t'ru. -a issues throughout
FY 1938, with the expectation that soine of - .La- work will come
to fruition in FY 1989.

II.  ENVIRONMENTAL PROBLEM AREAS
           <»'.. •»*'

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                                -34-
 C .   PROTECTING SURFACE WATERS
Strat
               , «
 !•
         '  • *'fg§         .
 SPA and Statfpijiter programs will continue and accelerate their
 efforts to protect and restore the nation's surface Waters through
 effective implementation of traditional CWA activities along with
 the WQA initiatives.  Consistent with the WQA mandates, EPA and
 the States will focus on protecting human health and aquatic
 resources by identifying and controlling toxic pollutants and
 hazardous substances entering the nation's surface water (see
 earlier section on "Controlling the Discharge of Toxic Pollutants
 into Surface Waters").

 In addition* SPA and the States will carry out a number of CWA
 activities related to water quality standards, monitoring, NPDES
 permitting,  pretreatment,  nonpoint source control, 'and enforcement.
 EPA will work with the States to helps  upgrade monitoring programs
 to improve the identification of impaired waters; upgrade water
 quality standards programs to incorporate standards for toxic
 pollutants and upgrade anti-degradation and whole effluent toxicity..
 control programs.  As State toxic control programs are upgraded,  £.
 EPA and the States will implement improved controls for toxic     3.
 pollutants and toxicity through efPDES permits.  EPA and the States^
 will also help local POTWs upgrade and refine their approved
 local pretreatment programs.  SPA and the States will maintain
 their NPDES enforcement capability to ensure compliance with
 water quality- and technology-based requirements, and will improve
 their pretreatment enforcement capabilities.  KPA will make
 effective use of its Federal administrative penalty authority to
 assure faster,  more cost-effective enforcement against direct and
 indirect dischargers.

 EPA will assist the States .by undertaking activities to prepare
 for later phases of toxics control by developing information on
 new toxic pollutants and hazardous chemicals {i.e. beyond the 126
 priority pollutants) that  could cause significant problems for
 surface waters.  EPA will  place priority on bioaccumulative
 pollutants and other chemicals (generally carcinogenic or mutagenic
 pollutants)  that could require controls for human health related
 use  that are sore stringent than those needed to protect aquatic
 species.   EPA will also develop effluent guidelines and water
 quality criteria/or advisories to serve as the basis for new
 State water  quality standards and fourth round permits in the
xeari   1990s.   -*'

 In  an effort  to strengthen State responsibility for *atar programs,
 EPA will work with States  to maintain effective State NPDES
 programs,  and to increase  the level of program approvals by

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                                  -35-
    *
    approving new State pretreatment and sludge management programs
    and approving whole or partial NPDES programs.  EPA will also
    continue the phase-out of the Federal Construction Grants Program,
    leaving tiV/*** place financially viable State Revolving Funds and
    POTW user Charge systems to meet municipal financing needs for
    long-tern compliance.  EPA will also continue to ensure that
    scarce resources are used efficiently to produce -reliable, high
    quality* effective municipal wastewater treatment systems.

    In the nonpoint source area, the WQA mandates a multi-year
    approach.  State Management Programs are initially expected to
    target control actions at specific nonpoint source problems or
    areas where water quality data are available to support develop-
    ment of effective nonpoint source controls,  tn the longer-term.
    States are expected to maximize environmental benefit by devoting
    resources and efforts to water resources in a priority order that
    recognizes the values o£ the waterbody in question, the benefits
    of various control actions (including evidence of local public
    interest and support), and the problea(s) controllability.
    2.
Indicators
    the following indicators are being considered by EPA as a means
    to evaluate the long term impact of the programs described in    '
    this section.  They are not accountability measures for evaluating
    FY 1989 program performance or impact.

    a.   Sizes and location of areas classified for various designated
         uses.

    b.   Sizes and location of areas that fully or partially do not .
         support uses and are threatened, due to point and nonpoint
         source*.

    c.   Sizes of waters with elevated levels of toxics.

    d.   Extent of fish tissue contamination.

    e.   Municipal wastewater treatment works projects which initiate
         operations and were funded with assistance of a construction
         grant or other assistance under an SRF.

    f.   Industrial'and municipal compliance.

               ¥'•
-7214

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                  .•*£«-

                  •"*' •
        e.  NPDES  Permitting

        In recognition    the      tance
s
certai  to»lc discharges ^.^I^^ponent of the ongoing
no- impaired.  This new »f"date  is one co p       ^ an
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                               -42-
In addition, where instream toxicity problems are identified, even
if the source.i-a- not listed under 304(1) (because the pollutant
.nvolved is nflfcL* priority 307(a) pollutant) States and Regions
will reissue permits to include, as appropriate, toxicity based
limits, toxicity reduction evaluations, compliance schedules,
biomonitoring, revised local pretreatment programs,' and pollutant-
specific limits*  In unusual cases, Regions and States may -equi-e
permittees to conduct approp-iate studies leading to future
permit limits, but only where data deficiencies make it impossible
to set appropriate limits now.  Administering agencies will also
reissue and/or modify permits to implement BAT guidelines for
organic chemicals to reflect best currently available technology
on a case-by-case basis where guidelines are outdated or unavail-
able and to incorporate sludge requirements and needed ^evisions
to pretreatment implementation requirements.

In FY  1989, tJPDES permitting authorities will begin  .3 focus
on section 405 requirements tor controlling sludge use
and disposal.  EPA will develop regulations for incorporating
sludge use/disposal criteria in tfPOSS permits.  Generally, EPA
will defer to State sludge permitting efforts wherever they
exist, and will focus on appropriate monitoring requirements,
along with compliance with existing sludge standards.  Where
sludge disposal practices are presenting a threat to human
health and the environment, SPA and States will take appropriate
permitting and enforcement actions to address the concern.  When
the technical c-ite-ia regulations are promulg* 
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                                -43-
  Headquarter*,.-
            5£V.<:       .                             •'  -
  o  Headquarters/Regions will provide oversight, guidance, and
     technical: assistance to Regions/States to complete the
     toxics activities noted above by the statutory deadline of
     February 4, 1989-   (Ongoing)

  o  Headquarters will issue regulations to implement the WQA and
     provide technical assistance and training for permit writers,
     and contract assistance to develop permits.  (Ongoing)

  o  ORD will continue to support toxicity reduction evaluations
     for the development of water quality based permit limitations
     in the Municipal Wastewatev Program and the development of
     Best Conventional Technology (BCT) and Best Available Tech-
     nology (BAT) limitations in the Industrial Wastewater Program.
     Information will be developed on treatability of RCRA wastes
     that will be useful in predicting effluent concentrations,
     POTW pass-through and potential water quality problems.
     (Ongoing)

  Regions/States                                                  4

+ o  Regions/States will reissue all major permits expired or
     expiring in FY 1989.  (Ongoing).[SPMS]
                     s
+ o  Regions/States will establish ICSs for a  L facilities listed
     under 304(1) by 2/4/89.  (Second Quarter  CSPMS]

  o  Regions/States will reopen permits for s  .e major and minor
     dischargers to incorporate water quality-aased limits based
     on studies required at the time of permit issuance, and will
     modify other major permits as needed to impose necessary and
     appropriate toxic controls.  (Ongoing)

No  Regions will assist States to take needed steps to strengthen
     their toxics control programs in accordance with Action Plans
     established in FY 1983 (joint monitoring, water quality
     standards and permitting program)*  (Ongoing)
            -V -
N o  Region* will review, approve and disapprove as appropriate
     State permits issued to dischargers in waters listed under
     §304(1|(B) and will issue federal permits where States fail
     to correct any deficiencies in individual control strategies.
     (Third and Fourth Quarters) [SPMS]

+ o  Regions/States will implement the RCRA permit-by-rule require-
     ment and establish corrective action requirements where
     necessary for POTWs that are receiving hazardous wastes not
     mixed with domestic sewage.  (Ongoing)

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                              -44-
o  Regions/States will begin to include sludge monitoring and
   exi stingy-national sludge regulatory requirements in NPDES and
   State slSdge permits.  (Ongoing)
           -
f «  NPDES Enforcement

In FY 1989, the CWA enforcement priority will be given to protec-
tion of the gains achieved in implementing the National Municipal
Policy (SMP) through aggressive enforcement against major and
water quality affecting minors that are violating MCP schedules.
Administering agencies will coordinate pretreatment and NMP
enforcement actions so that, when an action is taken in response
to noncompliance in one program, consideration is given to the
other.

Industrial enforcement efforts will continue to focus attention
on significant noncompliance.  As the NPDES program turns
its attention increasingly to enforcement of new controls for
toxics and hazardous wastes, it will place more emphasis on
considering cross-media impacts in prioritizing enforcement cases
and on the role and use of expanded CWA criminal enforcement
authorities.                                                    f

SPA, in cooperation with the States, will implement a Compliance
Monitoring and Enforcement Strategy for Toxics Control.  The
strategy focuses on inspections to monitor •  :ute and chronic
toxicity; c~ite**ia targeting enforcement re^ -oases to violations
that pose the greatest potential risX to aqu.itic life and human
health; lab performance evaluation criteria  "or toxicity analysis
(ORD); and an updated OMR/QA program to mee  new and expanded
needs for toxicity controls.

Headquarters

o  Headquarters (OWEP/OECM) will revise the Clean Water Act
   Penalty Policy and Enforcement Management System to address
   the use of administrative penalties to further supplement
   civil, judicial and criminal enforcement actions in assuring
   compliance with .the Clean Water Act. (Ongoing)
           •* «•"
o  Headquarters/Regions will analyze the effectiveness of refer-
   ral/cas* management and support process based in part on an
   PY 1987"analysis of the variation in ORC/WMD productivity, as
   well as new arrangements with DOJ.  (Ongoing)

Reg ions /States

o  Regions will fully implement CWA administrative penalty author-
   ity consistent with FY 1987 national guidance; Regions will
   also adhere to FY 1987 national  guidance  on the best use of
   the entire spectrum of existing/new/expanded CWA enforcement
   mechanisms (compliance only  Administ-ative Orders,  administra-
   tive penalties  (2 tiers),  civil  and criminal referrals, and
   contractor listing).   (Ongoing)

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N o
N o
+ o
                                -45-
Regions/States will increase the use of inspections    assess
permit^e biouonitoring capabilities and evaluate permittee
proced^ef/techniques for toxicity reduction evaluations.
(OngcifigjPCSPMS}

Regions /States will take -...rely and appropriate enforcement
against SNC violations, including those involving toxic
pollu-ants. (Ongoing) [SPMS]
     Regions/States
     WENDB data
                •ill ensure timely and accurate data entry of
                nts for pretreatment and NPDES. (Ongoing)

Regions/States will .monitor POTW compliance with Nh.  milestones
in consent decrees, permits ?rvd administrative orders, and
initiate/escalate enforcement actions as necessary based on
the 9/22/87 Enforcement Strategy.   (Ongoing) [SPMS]

Regions will ensure that EPA judicial referrals/consent decrees
and final administrative penalty orders contain appropriate
civil penalties consistent with the CWA Penalty Policy; NPDES
States will comply with penalty provisions in the. National
Guidance for Oversight of NPD~S Programs. (Ongoing)         I

Regions and States will ensure compliance with all formal
enforcement actions (AOs  civil and criminal) by tracking cases
from ini-.i\tion of refer als to entry of consent decrees o-
court orders, and by prompt follow up action when deadlines
are' missed.  (Ongoing)

Regions Mill provide technical support   >r criminal investiga-
tions and prosecutions in program prior_iy areas.  Regions
shall refer to the Office of Ordinal Investigation matters
involving suspected criminal vie Cations, including significant
unpermitted discharge and false reporting, or other fraud to
the Agency.  (Ongoing)

Regions/States will enforce againsts POTW non-respondence
to 308 letters concerning POTWs receiving hazardous wastes;
POTWs that are required t  have RCRA permits, but do not;
and POTWs not complying w -.h corrective action plans.
(Ongoing) .-.
  g.   Pretreatment

  The goal is to assure that POTWs* fully implement and enforce
  pretreataent controls for conventional and toxic pollutants and
  hazardous wastes that are necessary to protect human health,
  the environment, and the treatment works.  Administering Agencies
  * Throughout this section, wherever POTWs are cited, the same
  requirements apply to States or EPA acting as Control Authority
  in lieu of local program  .

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                               -46-
             it-jii	«•"
 should give priority to modifying the  requirements of  the approved
 program and HPDES permit*  1) to incorporate new  requirements
 resulting  frow'new or revised regulations; or  2)  to  correct  in-
 adequacies identified in the operations of the POTW  pretreatment
 program.   Additionally, Administering  Agencies should  closely
 monitor the performance, of POTWs to  identify those that  should be
 reported on the Quarterly noncompliance Report and should take
 necessary  action to return these POTWs to compliance.

 In FY 1989, 395 POTWs with approved  local programs have  permits
 which will expire.  Administering Agencies should use  this oppor-
 tunity to  modify these permits  to incorporate  new or revised
 requirements established in amendments to the  General  Pretreatment
 Regulations as a result of the  Domestic Sewage Study (DSS) or
 Pretreatment Implementation Review Task Force  (PIRT).  Additionally,
 the NPDES  permit and/or approved program should be modified  to
 incorporate needed changes or refinements to the  approved program
 identified through audits, inspections or annual  reports and to
 ensure that these requirements  are enforceable.   Administering
 Agencies should give emphasis to establishing  specific levels of  ••••
 activity and timeframes for issuance of industrial user  (IU)   .   '
 control mechanisms, monitoring  ZU performance,  and enforcing  .   :
.against IUs who are in noncompliance.  Administering Agencies
 should continue to give emphasis to  the following three  key  areas
 to ensure  effective implementation!

 o  Program  Modification!  Regions and States will  formally modify
   approved pretreatment programs to  incorporat* new  requirements
   or correct inadequacies*  Modification and r proval  will follow
   the FY 88 amendments to the General  Pretreatment Regulations,
   and focus on the following three areass

     a.  Local Limits - In accordance  with the 1985  policy memo-
         randum and the FY 88 Local  Limits Guidance  Manual,  site
         specific technically-based  local limits  must  be
         developed for each approved program and  periodically
         rdevaluated.

     b.  Control Mechanisms -   Based on the FY 88 IU Permitting
         Guidance Manual, the PlRT amendments  and the  DSS
         amendments, POTWs may  need  to develop and issue stronger
         IU control mechanisms  for significant industrial users
         (SIUs).

     c.  Enforcement-Procedures - POTWs must  be  .accountable for
         surfacing IU noncompliance  and enforcement  actions  with-
         in certain time frames.  Where approved  programs do not
         specify detailed enforcement  response procedures, they
         should be modified to  include them  consistent with  the
         1986  Pretreatment Compliance  Monitoring  and Enforcement
         Guidance  (PCME).

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                              -47-
o Enforcementt  Regions and States will assure that POTWs operate
  their~apprgyed programs and comply with reporting requirements.
  Where POTWi^ fail to successfully implement their program as
  measured tjijfe/.the PY88 guidance on reportable noncompliance.
  Administering; Agencies should use technical assistance* formal
  enforcement or a program modification to eliminate the problem.
  When technical assistance is the chosen approach a schedule for
  return to compliance should be developed.  If the schedule is
  longer than 90 days, it should be incorporated* at a minimum,
  in an administrative order.

o Data Managementt  Regions and States will assure that POTWs have
  in place and employ appropriate mechanisms to track and determine
  compliance rates for SIU's consistent with the PCME, and that
  POTWs report such data at least annually.  States and Regions
  will employ PCS to track pretreatment information and assist in
  identifying POTWs which meet the criteria for reportable non-
  compliance.

Where there is an approved program, and the POTW has not taken all
available action to secure the .compliance of the IU, action
against both the POTW and the IU will usually be appropriate.  Where
SPA or the State is the Control Authority, enforcement action    7.
should be taken against those lUs which have not complied with
categorical standards, giving priority to Ills where the POTW has
been identified as having toxics discharge problems.

Headquarters

o  Headquarters (OWEP) will promulgate change  to the NPDES and
   General ?retreatment regulations based on  ;ie recommendations
   of DSSi  (Third Quarter)

o  Headquarters (ORD) will develop information on treatability of
   hazardous wastes that will be useful in predicting effluent.
   concentrations, POTW pass-through, and potential water quality
   problems.  (Ongoing)

o  Headquarters will issue guidance to improve POTW control
   mechanisms, compliance tracking and enforcement («.g., setting
   local limits for toxic pollutants/hazardous wastes* setting
   prioriti«» for enforcement; etc.), and a companion document
   on oversight responsibilities of administering agencies.
   (Ongoing)

Regions/States

o  Regions/States will assess and assist POTWs as they implement/
   enforce their programs and adopt new regulations resulting
   from the findings of the OSS; the focus will be on adequate
   control mechanisms for compliance tracking of, or enforcement
   against, lUs.  (Ongoing) [SPMS]

-------
                              -48-
o  Regions/States will place highest priority on enforcement
   against PdTWs consistent with reportable noncompliance guidance
   which discusses how to determine whether a POTW is failing to
   implement its local program  (and against some ids within those
   POTWs).  EPA- will also take enforcement against lUs where
   POTWs do not have, or are not required to have, approved local
   programs.  (Ongoing) [SPMS]

o  Regions will use* new criminal enforcement authorities consis-
   tent with new/expanded CWA authorities, with special attention
   on knowing/negligent introduction into a sewer system/POTW of
   toxic pollutants/hazardous wastes (as defined by CWA §§311(b)
   (2)(A) and 307(a); CERCLA §102; SOWA $3001; TSCA §7) in excess
   of legal limits.  Regions will provide technical support for
   criminal investigations and prosecutions in pretreatment cases.
   (Ongoing)

o  States that act as control authorities in lieu of local programs
   will implement/enforce the pretreatment program consistent
   with national guidance, and will be held to the same standards .
   of implementation as local authorities.  (Ongoing)

h.  NPDES State Program Approval, Review, and Oversight

In FY 1989,  the goal is to'further strengthen the Federal/State
partnership by approving new State NPDES, preveatment and sludge
programs, improving, the legal and regulatory basis of current
State programs,  and conducting effective over '.ght to ensure
sound, consistent implementation of State pro  -ams. - As State
NPDES and pretreatment programs mature and as more States assume
these responsibilities, these activities continue to grow in
importance*   In addition, EPA will work with any Indian tribes
seeking to administer the SPDES program as authorized by the WQA.

The Regions will continue to encourage NPDES States to assume
authority for the pretreatment program, and will continue to
condition §106 grants accordingly.  Regions should continue to
encourage State program modifications for general permitting
authority, »inc« this will be a key to successful implementation
of FY 1990 stormwater program activities for all NPDES States.
In addition,'the CWA amendments are expected to produce increased
activity with respect to State program assumptions, including
approval of State NPDES or other federally authorized programs to
include sludge requirements, and treatment of Indians as States.
Finally, Regions, with Headquarters assistance, will continue to
review State programs to ensure that current State laws and
regulations provide adequate authority to administer and enforce
the national NPDES/pretreatment program requirements under the
CWA, as amended.  Special emphasis will be given to following up
on Action Plans established by  States and Regions  in FY 1988 to
strengthen water quality based  permitting for toxic pollutants
and toxicity.

-------
                           -62-
                WATER  ENFORCEMENT AND PERMITS
             PY 89 PROGRAM SUPPLEMENTAL GUIDANCE
GUIDANCE
Interim Implementation Strategy
for Sludge Issuance

Guidance for Writing Interim
Case-by-Case Permit Requirements
for Sludge Issuance

State Program Review Guidance

334(i) Guidance

Designation of Dischargers Con-
tributing to Water Quality Standards
Violations or Significant Contributor
of Pollutants

Compliance Monitoring and Enforcement
Strategy for Toxics Control

Guidance on the Collection of
Stipulated PenalIties

Enforcement Strategy for Industrial
Users Where EPA is the Control Authority

Guidance on Development of Penalties
for Pretreatment Implementation Cases

PCS Evaluation Study-Recommendations
and Data Entry Guidelines
FINAL PUBLICATION DATE

          March 1.988


          March 1988



          December 1987

          March 1988

          March 1988




          March 1933J


          July 1988


          April 1988


          March 1938


          February 1988

-------

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                        -••-  .
                                                  VII.14
MA Guide to the Office of Water Accountability System and Mid-
Year  Evaluations,  Fiscal  Year  1989,"  dated  March  1988.
Selected Portions ONLY.

-------
ife
  "

-------
                                                                  March 1988
                                 GUIDE TO THE
                               OFFICE OF UATER
                           ACCOUNTABILITY  SYSTEM
                                     AND
                            MID-YEAR EVALUATIONS
                               Fiscal Year 1989
Office of Water
U.S. Environmental Protection Agency
;*jshintjton, D.C.  20460

-------

-------
                               TABLE OF CONTENTS



                                                                        Page
    I.  INTRODUCTION                                                      \

   II. THE OFFICE OF WATER ACCOUNTABILITY SYSTEM      •   .                 2

       A*   Appendix A:   The Measures                                      2

       B.   Appendix B:   The Definitions                                    4


  III.  THE OFFICE OF WKTER EVALUATION SYSTEM                               5
                                                        »
       A.   Prenegotiated Ccmnitments and Quarterly
           Reporting                                                      5

       B. Regional  Initiatives                                             7

      C.  Mid-Year  Evaluations                                           7

           1.  Advance Preparation                                        7
          2.  On-site Evaluations                                        8
          3.  Evaluation Follow-up                                      10

      D.  Other Office of Water Information Collection                  ,10
          Activities

      E.  Timeline for Activities Related to the FY 1989        '        12
          Agency Operating Guidance


APPENDIX  A — Measures
       Public  Water System Supervision                                 A-l
       Underground Injection Control                                  A-ll
       Ground-Water Protection                                         A-19
       Marine  and Estuarine Protection                                 A-25
       Wetlands  Protection                                            A-43
       Water Quality Standards, Planning  & Assessment                  A-48
       Water Quality Enforcement  &  Permitting                          A-53
       Municipal  Pollution Control                                     A-97
APPENDIX B — Definitions
      Public Water System Supervision                                 3-1
      Underground Injection Control                                  V10
      Ground-Water Protection                                        1-17
      Marine and Estuarine Protection                                3-21
      Wetlands Protection           .                                 3-23
      Water Quality Standards, Planning s \ssess.ient                 3-25
      '.vater •Quality Enforcement 5 ?enittif.g                         r>-32
      Municipal Pollution Control                                    3-56

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                                                    VII.15
"Guidance  for  the FY -1989 State/EPA Enforcement Agreement
Process," date June 20, 1988.  See GM-57.
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                                                  VII.16
"FY 1990 Office of Water Operating  Guidance,1* dated March,
1989.   Selected portions ONLY.

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*&*••••
   53&fc ft -.«•.,. I*** State.
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        Environmental Protection
        Agency
         Agency
         Operating Guidance

         FY 1990
                                 -•

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                        TABLE OF CONTENTS
I.   ADMINISTRATOR'S OVERVIEW

II.  PROGRAM OPERATING GUIDANCE
     A.   Office of Air and Radiation
     B.   Office of Water
     C.   Office of Solid Waste and Emergency Response
     D.   Office of Pesticides and Toxic Substances
     E.   Office of Policy, Planning and Evaluation
     F.   Office of External Affairs
     G.   Office of Administration and Re.. • urces Management
III. APPENDIX:
.STRATEGIC PLANNING ANC MANAGEMENT SYSTEM
FY 1990 MEASURES AND DEFINITIONS

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Office of
Water
                          2*>~

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                        TABLE OF CONTENTS
                                                            Page
I.   ASSISTANT ADMINISTRATOR'S OVERVIEW 	 	   1

II.  ENVIRONMENTAL INDICATORS	 	   12

          1.   Protecting Our Sources of Drinking w»ter."....   12
          2.   Protecting Critical Habitats	   13
          3.   Protecting Surface Water	   14

III.       ENVIRONMENTAL PRIORITIES 	'.	   15

     A.   Protecting Our Sources of Drinking Water-Activities

          1.   Public water System Supervision 	   15
          2.   Ground-Water Protection 	   21
          3.   Underground Injection Control 	 	   25

     B.   Protecting Critical Habitats-Activities

          1.   Ocean Disposal Site Permitting and
               Discharge 	   30
          2.   Near Coastal Waters/National Estuary
               Program 	   33
          3.   Chesapeake Bay	   38
          4.   Great Lakes 	   39
          5.   Lake Management 	   42
          6.   Wetlands	   43

     C.   Protecting Surface Waters-Activities

          1.   Water Quality Standards	   47
          2.   Water Quality Monitoring and Analysis 	   49
          3.   Water Quality Management	   53
          4.   Nonpoint Source 	   56
          5..   NPDES Permitting 	   58
          6.   NPDES Enforcement 	   61
          7.    Pretreatment 	   64
          8.   NPDES and Pretreatment State Program Approval,
               Review,  and Oversight 	   67
          9.    State Revolving Fund Management 	   68
          10.   Management of the Ongoing
               Construction Grants Program  	   70
          11.   Municipal Waste Water Treatment Works
               Compliance Maintenance and  Infrastructure
               Protection	   72
          12.   Municipal Technology Transfer and Snail
               Community Outreach 	   "75
                                                               '/-A,
                                                                   •

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IV.  REGIONAL INITIATIVES .....	



V.   SUPPLEMENT GUIDANCE		



SPHS MEASURES AND SPMS DEFINITIONS
 ....  79



.. . . .  81



 APPENDIX

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         FY 1990 WATER PROGRAMS AGENCY OPERATING GUIDANCE
ASSISTANT ADMINISTRATOR'S OVERVIEW

The Water portion of the Agency's FY 1990 Operating Guidance
provides national direction to EPA, States, Indian Tribes, and
the regulated community in carrying out programs mandated under
Federal water protection statutes.   These statutes include:  the
Safe Drinking Water Act (SDWA), as amended by the Lead
contamination Control Act of  1988; the Clean Water Act (CWA); and
the Marine Protection, Research and Sanctuaries Act (MPRSA),  as
amended by the Ocean Dumping  Ban Act of 1988.  The Agency and the
States also implement programs to protect groundwater quality
through provisions under several different statutes.

The Office of Water  (OW) uses a management accountability system
to set priorities, define performance expectations and track and
assess EPA and State performance.  This system is vital to the
effective functioning of the  Water programs because it links a
number of organizations at the Federal and State level (and,  in
some programs, local governments as well) to a common, set of
objectives and expectations when they are operating under these
Federal statutes.  The Office of Water Accountability System
(OWAS) includes the OW portion of the Guidance, the accompanying
SPMS measures, the OW program evaluation guide with quantitative
and qualitative measures, and the OW mid-year Regional
evaluations.

During the FY 1990 mid-year review process, the Regions provide
the OW Assistant Administrator with their projected operating
strategy and plan for FV 1991, including an overview of Regional
and State priorities and their relationship to national
priorities.  This is done before FY 1991 commitments are made to
set the context for negotiation of State work programs and those
commitments.  The mid-year evaluations also provide the Regions
the opportunity to present and discuss Region-specific
initiatives.  These initiatives are directed at correcting
Region-specific problems that will result in significantly
increased environmental protection or substantially reduced
health/environmental risks.
   The term State does-not include Indian Tribes.  The terms
Indian Tribes, Indian Tribes treated  as States,  and  Indian  Tribes
with Primacy are  inserted after the term State where it  is
appropriate to do so.

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                               -2-
Act-ivities with associated SPMS measures are denoted by [SPMS]
appearing at the end of the activities.  Additionally, in line
with the Agency format, activities increased.from, the FY 1939
Operating Guidance are indicated by a plus (+} in the left
margin, new activities are indicated by the letter (N), and
decreased activities are indicated by a dash (-).  No notation
indicates that the level of activity is the same as in FY 1989.
PROGRAM DIRECTIONS AND PRIORITIES

As a Nation, we have made impressive gains in the battle for
clean Water. 'Many of Americ