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.
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(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
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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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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
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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
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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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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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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
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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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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. 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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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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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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-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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REGION IX
(.Region IX Model Language)
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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
-------
f
REGION X
(Region X Model Language)
-------
-------
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.
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- 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.
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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
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-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. . .
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-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 „
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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
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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
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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.
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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 '
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VLB.15.
"Applicability of Categorical Pretreatment Standards to Industrial Users of
Non-Discharging POTWs", dated June 27, 1985.
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-------
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
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- 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
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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
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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
- 3 -
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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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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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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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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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". ' .
-------
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.
-------
"KC*!
-------
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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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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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).
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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)
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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
-------
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
-------
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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page 10
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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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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page 12
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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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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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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*
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
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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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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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•
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
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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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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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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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* 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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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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*
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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% 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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*
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.
-------
-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
-------
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
-------
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
-------
-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
-------
-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
-------
.
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
-------
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
-------
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
-------
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
-------
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-
-------
-------
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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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
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2
3
4
7
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7
10
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11
IS
15.
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22
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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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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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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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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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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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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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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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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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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.
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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
-------
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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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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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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• •-' •
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
-------
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
-------
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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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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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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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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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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( 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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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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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
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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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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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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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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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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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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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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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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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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
-------
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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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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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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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
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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.
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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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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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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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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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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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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
-------
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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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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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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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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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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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 .
-------
-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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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.
;,vf&--* v-:
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VII.16
"FY 1990 Office of Water Operating Guidance,1* dated March,
1989. Selected portions ONLY.
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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
-------
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 America's rivers, streams and lakes have
been restored through the Federal, State, and local investment in
science, regulatory actions, wastewater treatment. Generally the
Nation has drinking water that is abundant and safe. The price
for this level of quality is perpetual vigilance to ensure that
our protection systems are maintained. Wastewater treatment
systems must be constantly operated, maintained, and upgraded.
New industry and municipal discharges must be stringently
regulated. Drinking water sources must be protected, treated,
and monitored to deal with a growing list of contaminants.
Despite our progress, we have not eliminated the underlying
causes of contamination. In fact, they are growing with our.
population and economy. Habitat loss, especially wetlands and
coastal areas threatens the ecological values we are struggling
to protect. Nonpoint source pollution remains a serious problem
and is now attracting more Congressional and. public attention
because our point sources are largely controlled. The plight of
our near coastal waters and beaches is under scrutiny by the
Congress, press, and public. Preventing the contamination of our
underground sources of drinking water is an increasing concern of
Congress and the public. Clearly, our job is not done.
Our arsenal of water program tools and responsibilities is
abundant and public support for our programs is strong. New
programs like Wellhead Protection, Nonpoint Source and the
National Coastal and Marine Policy give us even greater
opportunities to be effective through stimulating use of
environmentally sound land management practices that augment and
reinforce traditional pollution control approaches.
In FY 1590 we face the stajor challenge of maintaining the
integrity of our base programs and taking advantage of our new
opportunities, while facing substantial shortages in funding.
The programs we put forward in this Guidance are ambitious. Our
operating policy is to demand as much Federal and State
performance as the system can generate, to stimulate increasing
cast-effectiveness in carrying out nany of our repetitive casks.
-------
to advocate creative work-sharing arrangements among Federal,'
State, local and private programs, and to evaluate tradeoffs'
within A context of broad, basin-wide or State-wide strategies to
address areas .of greatest risk and benefit.
Both the Clean Water Act and the Safe Drinking Water Act programs
are largely delegated to the States; thus effective State as well
as EPA performance is critical to achieve success under these
laws. In addition, EPA and States are increasingly dependent on
local governments i- newer geographic-based water programs such
as Class v Undergrc id Injection Control, Nonpoint Source,
Wellhead Protection, and National Estuary Programs through
consensus-building. This leads to some competition between
Federal and State priorities, as well as tension between the
decentralized structure and the n?ed for national consistency,
which must be managed within a cI.mate of work-sharing and mutual
respect.
A sound Federal/State partnership is essential to implement
national programs in a comprehensive, coordinated fashion. In '
1990, as a result of new and continuing demands from Federal
Water statutes, EPA and States must take a leadership role in
building public awareness and support to address Federal, State,
and local funding needs in order to continue to:
o Reduce human health risks posed by drinking water
and protect ground-water resources that serve as
drinking water supplies;
o Pm.ct and maintain critical aquatic habitats,
including wetlands, from point and nonpoint
sources of pollution; and
o Protect and maintain the Nation's surface waters
from point source discharges, especially hazardous
and toxic pollutants.
In addition, Water programs will participate in EPA's strategic
effort to bring about a long-term shift towards pollution
prevention through source reduction and environmentally sound
recycling. EPA will develop its Pollution Prevention Strategy in
1989, with each program, including Water, formulating its own
plan in cr-junction with the States and Regions. In 1990 EPA
headquartt.s, Regions, and States will begin implementing a Water
Programs' Pollution Prevention Plan.
EFA's Water programs will work with Indian Tribes on a
government-to-goverr.r.ent basis to take all appropriate actions,
consistent with available resources, and to assist Indian Tribes
in improving and maintaining the quality of their water
resources. In 1990, as EPA completes pertinent enabling guidance
and regulations, EPA will place emphasis on awarding grants to
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-4-
Indian Tribes. In this regard, EPA will be reviewing and
approving Indian Tribe applications for treatment as States as
required by statute. In addition, emphasis will be placed on
improving communications with Indian Tribes and States to
encourage cooperative working arrangements.
A. Protecting Drinking Water Sources
EPA and State Drinking Water programs face many new challenges in
1990 in protecting drinking water at the tap and preventing
contamination of ground waters and surface waters that serve as
drinking water supplies. In 1990, EPA places high priority on
States accepting primacy for the new EPA regulations,
implementing the new program requirements, and enforcing against
violators of existing standards. In accordance with this
priority:
o EPA and EPA Regions will continue to develop safe
drinking water standards in accordance with the
requirements of the. 19.5 SOWA Amendments.
o States will need to increase enforcement
substantially, master new program capabilities,
and adopt 'new regulations to implement many new
provisions of the 1986 Safe Drinking Water Act.
Specifically,, States will be expected to:
Enforce the first new Maximum contaminant
Levels (MCLs);
Expand monitoring requirements for volatile
organic compounds;
Assume primacy for the new requirements in
the surface water treatment, coliform, and
lead/corrosion rules;
Initiate assessments of more than 9,000
surface water systems pursuant to the new
treatment rule with emphasis on approximately
4,000 unfiltered systems;
Enforce the ban on plumbing materials
containing lead and lead public notification
• regulations; and .
Implement the provisions of the Lead
Contamination control Act.
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N
N
. * -61-
Regions/States will reopen permits for organic
chemical plants, bleached fcraft pulp nilla, and others
to incorporate technology-based and water
quality-based 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. There will be more focus on developing
limits to protect human health. (Ongoing)
Regions/States will follow the interim sludge
permitting strategy by including sludge monitoring and
existing national sludge regulatory requirements in
NPDES and State sludge permits. (Ongoing) [SPHS]
Regions/states will implement the RCRA permit-by-rule
requirement and establish corrective action
requirements where necessary for POTWs that are
receiving hazardous wastes not mixed with domestic
sewage. (Ongoing)
Regions/States will prepare permit strategies
addressing all CSO discharges by January 15, 1990.
(Second Quarter)
Regions/States will focus increased attention on
permit issuance to NPDES permittees discharging to
marine/estuarine waters, especially to control the
discharge of bioaccumulative and persistent toxicants.
(Ongoing) [SPMS]
6. NPDES Enforcement
The goals for the NPDES enforcement program in FY 90 are to
expand upon the success of the National Municipal Policy by
ensuring continued municipal compliance and to increase our
enforcement presence in emerging program areas such as toxic
controls and sludge. Specifically, in the municipal area
emphasis will shift from construction of facilities to improving
compliance of constructed facilities with final effluent limits.
EPA will develop a Municipal Compliance Maintenance Strategy
which will provide guidance for identifying the cause(s) of POTW
noncompliance through diagnostic inspections and establishing
compliance correction plans utilizing section 308 letters,
administrative orders, or where necessary judicial actions.
In support of this municipal compliance emphasis, EPA will
increase attention to the enforcement of pretreatment
implementation requirements for POTWs, improve
monitoring/inspections to evaluate compliance with toxic
requirements in NPDES permits, and increase the use of diagnost*;
inspections and tracking to identify and correct chronic
noncompliance. Administering agencies will coordinate
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- .' - -62-
pretreatment and municipal enforcement actions so that, when an
action is taken-in response to noncorapliance in one program,
consideration is given to the other.
In FY 90, the enforcement program will become more involved
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N
-63-
OWEP will coordinate with the Office of Municipal
Pollution Control in the-development and
implementation of the Municipal Compliance Maintenance
Program. (Ongoing)
Headquarters will continue to encourage Regions to
deliver inspector training and ensure that both new
and experienced inspectors receive program-specific
training. (Ongoing)
Headquarters will work to implement the new EPA
Federal Facility Compliance Strategy, signed by the
Administrator on November 8, 1988. (Ongoing)
Reoiona/States/Indian Tribes
Regions.and States, using the entire spectrum of
enforcement mechanisms, will ensure compliance with
all formal enforcement actions (AOs, civil and
criminal) by tracking cases from initiation of
referrals to entry of consent decrees or court orders,
and by prompt follow up action when deadlines are
missed. (Ongoing)
Regions will provide technical support for criminal
investigations and prosecutions in program priority
areas. Regions shall refer to the Office of Criminal
Investigation matters involving suspected criminal
violations, including significant unpermitted
discharge and false reporting, or -other fraud to the
Agency. (Ongoing)
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 NPOES Programs. (Ongoing)
Regions/States will take timely and appropriate
enforcement against SNC violations, including those
involving toxic pollutants. (Ongoing) [SPMS]
Regions/States will increase the use of inspections to
assess permittee biomonitoring capabilities and
evaluate permittee procedures/techniques for toxicity
reduction evaluations. (Ongoing) [SPMS]
Regions/States will continue to ensure timely and
accurate data entry of WENDB data elements for
pretreatment and for administrative penalty orders.
(Ongoing)
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-64-
N o Regional enforcement staff will coordinate with Near
Coastal program staff to determine whether enforcement
action is required for less than significant
noncompliance. (Ongoing) * .
H o Regions/States will monitor compliance with sludge
requirements in NPOES permits. (Ongoing)
H o Regions/States will develop and implement Municipal
Compliance Maintenance programs for anticipating when
a POTW will reach design capacity. (1st Quarter)
7. Pretreatment
The goal is to assure that POTWs1 fully .implement and enforce
pretreatment controls for conventional, 'nonconventional and toxic
pollutants and hazardous wastes that are necessary to protect
human health, the environment, and the treatment works.
Administering Agencies should give priority to: 1) modifying the
requirements of the approved program and NPDES permit to
incorporate new requirements resulting from new or revised
regulations and to correct inadequacies identified in the
operations of the POTW pretreatment program, .and 2) identifying
those POTWs that meet the criteria for reportable noncompliance
and report them on the Quarterly Noncompliance Report, where th
POTW also meets the new definition of significant noncompliance,
formal enforcement action should be initiated when the POTW does
not return to compliance within a timeframe consistent with the
definition.
Administering Agencies, as they oversee local program
implementation, 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 incorporate new requirements
or correct inadequacies. Modification and approval will
follow the October 17, 1988, amendments to the General
Pretreatment Regulations, and focus on the following four
areas:
a. Local Limits - In accordance with the 1985 policy
memorandum and the FY 88 Local Limits Guidance Manual,
site specific technically-based local limits must be
developed for each approved program and periodically re-
evaluated.
Throughout this section, wherever POTWs are cited, the same
requirements apply to Stares or EPA acting as Control Authority
in lieu of local program.
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-65-
b. ffftgal Authority - Consistent with section 403.8 of the
Pretreatment .Regulations, particularly as revised by the
PIRT rule, POTWs, and in some cases States, will need to
modify their legal authorities. '
c. Control Mechanisms - Based on the FY 89 IU Permitting
Guidance Manual, and the PIRT amendments POTWs nay need
to develop and issue stronger IU control mechanisms for
significant industrial users (SIUs).
d. Enforcement Procedures - POTWs are responsible for
ensuring the compliance of industrial users with
pretreatment standards, including taking effective
enforcement actions within reasonable 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).
o Enforcement; Regions and States will assure that POTWs operate
their approved programs and comply with reporting
requirements. Where POTWs fail to successfully implement
their program as measured by the guidance on significant
noncompliance, Administering Agencies should take timely
enforcement action to address the problem.' where the POTW
does not act promptly to correct the situation, formal
enforcement action should be initiated against the POTW to-
address the noncompliance.
where there is an approved program, and the POTW has not
taken all actions available under its authority, to secure the
compliance of the IU, action against both the POTW and the IU
will usually be appropriate. Where EPA or the State is the
Control Authority, enforcement action should be taken against
those lUs which have not complied with categorical standards,
giving priority to lUs where the POTW has been identified as
having interference or pass-through problems.
o Data Managementr Regions and States will assure that POTWs
have in place and employ appropriate mechanisms to track and
determine compliance rates for SIU's, using the definition of
significant noncompliance when it is promulgated, 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 and significant noncompliance. Regions and
States should also use PCS to identify the compliance of lUs
where EPA or the State is the control Authority.
For State-run pretreatment programs, special attention will be
given to monitoring and evaluating performance. Regions should
ensure that States are inputting data into existing tracking
-------
systems as appropriate and should monitor the overall performance
of the program to ensure that industrial users are in compliance.
Where there is no approved local program Regions/states should
evaluate the need to develop local programs consistent with
section 403.8. '
Headquarters
o Headquarters (OWEP) will promulgate changes to the
NPDES and General Pretreatment regulations based on
the recommendations of DSS. (Second Quarter)
N o Headquarters will propose changes to the NPDES
regulations on the Quarterly Noncompliance Report to
incorporate reporting requirements for pretreatment
implementation. (Fourth Quarter)
N o Headquarters will provide guidance defining the
definition of significant noncompliance for POTWs
which fail to implement their approved programs.
(First Quarter)
Reaions/States/Indian Tribes,
+• o Regions/States will assess and provide technical
assistance to POTWs as they implement/enforce their
programs and adopt new regulations resulting from the
findings, of the OSS. (Ongoing)
* o Regions/States will continue to place highest priority
on enforcement against POTWs consistent with the
guidance to be issued on significant noncompliance.
Regions should continue to report all POTWs on the
QNCR which meet the criteria for reportable
noncompliance. (Ongoing)
o Regions will use criminal enforcement authorities
against appropriate industrial users with special
attention on knowing/negligent introduction into a
POTW of toxic pollutants/hazardous wastes (as defined
by CWA sections 311(b)(2)(A) and 307(a); CERCLA
section 102; RCRA section 3001; TSCA section 7) in
excess of legal limits. Regions will provide
technical support for criminal investigations and
prosecutions in pretreatment cases. (Ongoing)
i- o Regions/States that act as control authorities will
implement/enforce the pretreatment program consistent
with national'guidance, and will be-held to the same
standards of implementation as local authorities.
(Ongoing)
Z340
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-67-
o Regions/States will ensure that all approved
pretreatment programs are inspected or audited
annually. (Ongoing) [SPMS]
+ o Regions/States will .assure that all POTWs with
approved programs for more than two years have ..in
place and are implementing adequate and enforceable
control mechanisms for at least 95% of SIUs. (Fourth
Quarter)
N . o Regions/States will ensure that approved POTWs
implement the definitions for significant
noncompliance and significant industrial users as soon
as they are promulgated. (Ongoing)
8. NPDES and Pretreatment State Program Approval. Review, and
Oversight;
In FY 90, the goal is to further strengthen the Federal/State
partnership by conducting effective oversight to ensure sound,
consistent implementation of State programs, improving the legal
and regulatory basis of current State programs, and approving new
State NPDES, pretreatment and sludge programs. 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 NPDES program as authorized by the WQA.
Regions will continue to negotiate agreements with their States
on managing and overseeing NPDES programs consistent with the
Oversight Guidance and applicable NPDES/pretreatment regulations.
By 1990, many of the initiatives begun in earlier years will be
institutionalized into other documents and agreements, and more
emphasis will be placed on follow up by Headquarters and by
Regions to ensure the sound, consistent application of these
principles and practices.
The 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. Continued emphasis will be given to following
up on Action Plans established by States and Regions in FY
1988/89 to strengthen water quality based permitting for toxic
pollutants and toxicity.
The Regions will continue to encourage NPDES States to assume
authority for the pretreatment program, and will continue to
condition section 106 grants accordingly. Regions should
accelerate efforts to encourage State program modifications for
general permitting.authority, since this will be a key to
successful implementation of stormwater program activities for
all NPDES States. In addition, the CWA amendments are expected
to produce increased activity with respect to State program
-------
I
assumptions, including development of approvable state NPDES or
other federally authorized programs to include sludge
requirements, and treatment of Indians as States.
Headquarters
N
N
Headquarters will provide guidance/assistance to all
Regions in conducting legal reviews, correcting
program deficiencies, and responding to
litigation/administrative petitions from third parties
seeking withdrawal of State programs. (Ongoing)
• .
Headquarters will promulgate changes to NPDES
Regulations to incorporate requirements of the Water
Quality Act of 1987, including the treatment of Indian
tribes as States, and to clarify existing regulatory
provisions. (Fourth Quarter)
Headquarters will work with the Regions to assist
Indian tribes seeking to administer the NPDES program.
(Ongoing)
Reqions/States/Indian Tribes • '
o Regions will increase their oversight of State-run
pretreatment programs, and will take appropriate steps'
to correct problems where States are 'not adequately
implementing/enforcing program requirements.
(Ongoing)
o Regions will continue to review/approve programs/prog*-
ram modification requests for NPDES (including
pretreatment, general permits and sludge) and review
and approve partial NPDES programs. (Ongoing)
+ o Regions will work with States to implement their toxic
control action plans. (Ongoing)
9. state Revolving Fund Management
In the implementation of the State Revolving Fund program
authorized under Title VI of the Clean Water Act, FY 1990 will be
the key to the future of the program. Almost 40 states are
projected to receive their initial capitalization grants by the
end of FY 1989 and the remainder during FY 1990. Most States
will therefore be completing their first SRF annual cycle by the
end of FY 1990. It is crucial to the success of the-SRF program
that EPA and the States provide the necessary technical and
financial resources. This is vital to ensure that each State1!
program is developed to effectively deal with municipal
wastewater financing needs of both large and small communities.
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What problems is the Region
n assessing penalties
Penalty Policy? Is the
ncing problems/delays
ers reviews? Explain.
generally getting the
s identified in the
s could be
to speed up
ss
mprov
pro
ss?
ng
CW
A
i
ar
on
un
en
usn
[{eg ion exper
with Headqu
is the Regi
penalty
~< O
JJ > U
flj Ql &
W
Wh
r
l
counte
g the
a
?
referral
made to the
the referra
> C W C T
O fl ii ; M i-
Jr ~ S i a
» >• s i M c
«r § £ u a —
A-88
-------
-------
VII.17
"A GUIDE TO THE OFFICE OF WATER ACCOUNTABILITY
SYSTEM AND MID-YEAR EVALUATIONS, FISCAL YEAR
1990", dated March, 1989. Selected portions only,
-------
-------
A GUIDE TO THE
OFFICE OF WATER
ACCOUNTABILITY SYSTEM
AND
MID-YEAR EVALUATIONS
Fiscal Year 1990
Office of Hater
U.S. Environmental Protection Agency
Washington, D.C. 20460
-------
TABLE OF CONTENTS
Page
I. INTRODUCTION ,..-... 1
II. THE OFFICE OF WATER ACCOUNTABILITY
A. Appendix A: The Measures... 2
B. Appendix B: The Definitions 4
III. THE OFFICE OF WATER EVALUATION SYSTEM
/ ,
A. Prenegotiated Commitments and Quarterly Reporting....5
B. Regional Initiatives .7
C. Mid-Year Evaluations 7
D. Other Office of Water Information collection
Activities 8
IV. TIMELINE FOR EVALUATION ACTIVITIES 11
APPENDIX A —Measures
Public Water system Supervision A-l
Underground Injection Control A-7
Ground-Water Protection A-13
Marine and Estuarine Protection A-21
Wetlands Protection A-50
Water Quality Standards, Planning & Assessment A-56
Water Quality Enforcement & Permitting A-67
Municipal Pollution Control A-124
APPENDIX B ~ Definitions
Public Water System Supervision B-l
Underground Injection Control B"9
Ground-Water Protection B-ll
Marine and Estuarine Protection B-22
Wetlands Protection B-25
Water Quality standards, Planning & Assessment B-27
Water Quality Enforcement & Permitting B-37
Municipal Pollution Control B-52 .
M .-i/-
S*r' •*
-------
State Appewuytewlew/Owrsight
IK SBS/
HtKHiPC
^
NPDES
State Statutory
and Regulatory
Authority
(continued)
3. EXacute__
Oft/state JBDES
Agreements
:-•!•«? In
-iclpatte
Off ic« of Regi,
participate ir.
uhat toy? Do t.
in tt« process c.
SutM for rwi«v £:_ aolon?
caaniOBiu? Do tnay follow
tnrougti with ttwlr worK? In a
tisaly manwr? An priorities
a protjlan? If so. how an
conflicts resolwd?
(o Does the Region turn a
routine meenanisn for learning
of cftangw to State laus and
regulations? if SB, describe
the process*
(K> Mat probltna have arisen
in tne {Uwiopnent of SVStace
yeas agreenents? Jfcv an they
resolved? An then any
particular elenaou of national
policy and guidance on state
overview that rave Men
difficult to upleneitt? Da all
che agreements include
provisions for EPA evaluation
of State penalty practices?
*-«
State Program Approval,aeview/Owersigftt
IN SPJ6X
REHJTOtt
4. Provide
effective
Oversight of
Approved NRES
State Programs
-------
State Program approval/ReviewOversight
2JSBOX
4. Provide
Effective
oversight ot
^proved HUES
Piugians
(continued!
(C) How frequently does the
Region conduct PW, TOR and
WQFWs? How aany peraits/
ptmjtjua are reviewed? How
fflany industrial peraits and
vhat industrial caeegortas?
How many nxticipal parauta?
How an results provided co
States and describe how Region
verifies tnat am
probiey deficiency U
corrected.
(D) Does oversignt of State
coopliance aoniuring incujoe
cade/toxieity nnrutorin?
raqui -anents? Does the Region
chee.< -"* States coopiiance
inspection activity with
particular ervhasis on toxic
problems?
Stata Program
3ISHS/
4. Provide How are 106 grants and ^e
••ark program cevelcpment
process used to assure
effective uplenentation of
:3£GS State programs? '.Cvat
gtforcenent and permitting
priority areas identified in
•^B ft 90 ^aerat^g
ire s?eci:i=a;;y icfi
••t-L^. CT^S iT9 TjCt ITd -TT/J
-------
BO* Activities for NFCES Exilities
QBHHIKriUE M&SURES
m SBC/
KLKKUJC
t. Tnplmrc
Corrective! Action
Requirements
(A) Has the Region/State
updated their information on
Fonts who receive hazardous
wastes by dedicated pipe or
manifested hazardous tost*
delivered by truck or rail?
(B) Vtiat is the status of BO*
3007 information garnering
letters? Do any retain to be
issued by ovstatea to
srurucipelities?
(C) mat is the status of FOB)
notifications received and
reviews conpleted?
(D) Has the Region/State
established a KSA. permit by
rule for each subject POIW7
projects ir. wiucn a decision is
Tiade to discharge to a PQTW.
Specify control measure or
pretreacnent requirenents in
place.
Quarterly
A-87
'•'?•-•'..<»
-------
HOUV Activities for ssaes Facilities
^ I l y LTTES
2.
Regulatory/Pro-
yi'duuutic changes
Based en the
Domestic Swag*
Study
Describe the
strategy State by State for
upienenting the regulatory
changes in the DSS mistaking.
(B) Has the Region vented with
ECHO to iaplanra regulatory/-
progmnttic ctunges (e.g. , nw
Local liauta)?
(Cl Haa the Region worked witn
HFOB States to initiate State
g
Pretreatsient
Dl SR6/
1. Develop and
A(|)row/
Local Pr
(A) Miat rationale does a»
Boqiorvseates use to add/ da Let e
aBucipaUties troa ttvt list of
required l^Citl piogrsns?
k.'
%
^i;
#
«•«
*
r--
<8> mat are the segion/Statea
doing to encourage local
piuyiu aodifications utwre
dericiencies are identified?
ts am EteglovSuce relying
solely en trte K7W to :dentif/
deficiencies?
(C) Hew does tre Region
leeRtify neoded ??iw proqras
sodif ications , decenune
•wftetfjBr tney coraticite 4 aa;or
xodificxtion and revx«w jrd
approve, disapprove aa;or
(a) tdecttiry ttw local
pretreatnrtt programs requiring
approval but not yet approved
at cftB Mginmng of cne fiscal
yaar and distinguish between
those newly identified in Dr 90
and those previously required.
(List separately: non-pre-
treaoeit States, approval
pretreataoit states t.
>t» Track progress aqainst
^ir^ets :or tr* srogrns
approved •Airing n 90 (list
separately: nen-orRreatnent
States, approved pretreacrent
States).
10/31/89
Quarterly
21 '.*er. a local p
icrepcosla, .rai :;..r.
sciisr. :i '.Her. ry v»
5ac-.cn. state ;f t.*» ix
praqraa vs rj=c rss-jasii-
v.e r:L^
A-49
-------
IN SUB/
HLKKi'JJC
2. Mee Actions
aa Required to
Obtain :,-—ilance
with Pretreataent
Requirements
(fc) Hew do the Region/States
ttiat local pretr
(a)
are fully igpienanting
rates penult pretreataent
requirements? otherpretreat-
(B) Mat criteria do the
Region/states use to decide so
refer a FOB* for -Hurt to
isplenent as opposed to using
adnlnistrative enforeenent
action?
(C) met 1* the level of
cam mmeen the
section end OC in tne Region
and the respective agencies In
the States? If less than
satisfactory, what steps is tne
Region taking to isprove
coordination?
(D) How do the Regions and
States idattify and respond to
industrial noncatpUance witn
categorical pretreanent •
standard deadlines In a
naucipality where viere is an
approved pretreacnent program?
Report, tyBeglon, the
of prvtr
so/no
Quarterly
adBlnistrative oaBpllance
orders issued by g*> to jus and
the tunber of pretreaumL
eqolvaiene actions issued by
states 'to Els.
(b) Fretn
(it
mnent Referral*
by Region, the res/sue
of state pretreaoent WQ/T-U
civil nd criminal ref exzal*
sent to statat Attorneys General
and the tuner of State civil
and crimina-. -.aees filed.
(2\ Report tne
end State f*Li^ti'J"^"
referrals sent to HQ/OOJ/SM;
or-.
o FOfiw pratreataient
violations;
o iAkistrial user
in*i iMI IIHII violations (list
separately Oft. States).
Of ES-A tb/tb
Ouarterly
Quarterly
A-»O
•-rrr"
Pretreatacnt
dtaiirrg>jr.T
3J SRS/
2. Tir-.:cai
assistance, perm- rsgram
Codification, or tergal
enforcement. Report, by state,
cne coipliance status ;BTC,
resolved pending, resolved! of
each ?OIK ;r. sr* viu-.-erse as a:
t!v end of ^e year.
res/sas
second and
.fourth
Quarters
A-91
-------
Pretri
HOCRZBC
Effectiveness of
mm Pwtreaoent
program laplenen-
tation
iw How do Regions/States
establish, priorities for
pretreatsent oversight of
(B) How do Regions
independently assess the
effectiveness of WttH program
iaplewntation in pretreaosnt
states?
(0 Does the Region/State use
the taiit/*a cneciaist in
ccnfluctina. KJW prwreaawt
reviews? If the checklist is
Codified, describe tfte
nedifications.
(a) -Tneli. 6y Region, agalrat Yes/SRO
quarterly targets, for approved
local precreaeaere programs, II
We ntmxr audited by S* and
ttia tunbar airtitnl by approved
prewaaoHtt states; and (2)
ciw ranber inspected by EPA and
the rentier ir-spectad by
States.
(b) Report narber of ESK and
State pretreacnent inspections
of lUs where EPh or the State
is concrol aucnority. (list
separately: QA/Suee)
(c) toentlfy n«ber of KJMs
that need to conduct local
limits naadyorks loading
analysis tnon pretreatswxt
States; approved pretreacaent
States.)
(d) Traclc r«*er of POWs
requesting oranges to loca:
liaits (noRpretreaeaent S-.ites;
approved pretreaeaent Sta^ss)
Quart J»^P-
Quarterly
Quarterly
Quarterly
A-92
?retreataent
3. Oversee 101 >hat are tne criteria used
Effectiveness of ay EJVStates to select
local PretreatsHit industrial users to be
P"9ra^ Inspected? Do the Region/*
isplenentatton States place a priority on
(continued) inspecting lUs subject to
Federal categorical standards
wrucn are located where ttvre
is no local program? Miat do
tne results of these
inspections indicate? Mat use
is being aade of IU results?
3oes the Region/state incline
personnel from cue approved
?onr in we TO inspection?
(E) How are audits used by
Regions/States to overview
laplensfltation? '/tax. are ere
firdtnqs fron tf^se audi»?
•>JC iol^u-jp actians ire
-ixar. wren prcoians are
(ei Identify, separately, the
naeer of pretreaoent rows
wnicn nave adequate control
mchanism and the mneer of
pretreaoent rOTOs on
enforceable schedules that do
not yet have adequate control
aecnanisBB in place tnon-
pretreataent States,
pretreataent States).
(f) Traclc, by aegion. against
quanerly •Mrgets. vw rasaer
of ?owa -.tucn conpiy air-_-j; rt
90 -Jien tRetr enioreanaiE
scnaduies to assure adequate
control at
REKPTZC
fmTTir^
10/31/89
:to/cw
Quarterly
r».-.av state audits jiti
rape— s? -tew sizar.? 3o
:«ep capias ar State
rscorts arxi iai:j.-
A-*}
-------
O SPJC/ ULKKEUC
3.
Effoctivcmss of
Pretraatnent
Isplenoitation
(continued)
(F) How are inspections used
by Bagicns/Statea to ovcrvlev
iaplanenuKion? Wat are tns
findings fron tftese
inspections? Miat follow-cp
actions an tataen vihen problejis
an identified?
(G) An inspections used to
trade follow-up actions
required ty an earlier audit?
If not. how is audit follow-vp
determined?
-------
'.* '•5\a3!ES
3. Oversee
EfJectivwess of
Local Pretreataent
Isplenentation
(continued!
IK) An control wcflanisns
adequate? Are POIW enforcement
procedures adequate? Hew is
adequacy determined and -riac
follow-up is taken '.net
deficiencies are found? Are
control nechanisns updated
regularly to address new
pollutant lewis? Do
jBcnanisBS address organic
pollutants, hazardous con*
stituents or toxicity?
(L) i*at mechanisms are being
used by approval authorities to
detemine if local ptujiaua are
properly applying categorical
standards to nis? TO '-mat
extent are local programs
failing to properly apply
categorical standards? mat
problem are being encountered?
(H) Are HEKs taking rjeeessary
aiiorcanent actions against
irdustrxal users '-fai erey are
in nonccnpiiance? '«here PCnws
do not act expeditiously. ••rat
actions are tr« Regions/States
taking?
A-96
4. Diforce
PretreatMRC as a
Control Authority
^^^HJJEJ(PQB^2ffiHB.^i_^y3SitZ5
. Pretreataent
RSCRICB
(Ai Have Region/states
completed an inventory of
categorical industrial users in
cities without required
pretreatscnc prograva? How
were the inventories
conducted? How will the
inventory be Maintained?
(B) Does the Region/State take
appropriate enforcement action
to
-------
PretreatwHit
•ITTJTTTES
y. oversee
Effectiveness of
State-run
nnrmflfug
(A) Are State-run .__,
putting data into existing
system on the performance of
IDs and on local prcigijis where
there are approved
(a) Report by state for aactt
State nit program the percent
of XUs in significant
nonccRpUance.
undone
No/No
Fourth
Quarters
(B) that mechanisms does the
Region us* to ovwsee we
ef f ectiveness of sut«-nm
(C) An ttaM States talcing
nanssary atfoienane actions
to ansim that TO* an In
oopplianca- with pretramoam
standarts?
A-9*
Qiforcenent
ISS
z: sets/
1. Identify
Compliance
Prooiens
Da the Regions'/States*
compliance rates snow
upromuieut in Ft 1990?
(B) Is the QNOt
regulation/guidance being
properly applied in the
Region/States? Is the Region
reviewing State
-------
2. Follow Through
on Aticnu.
rtmicipal Policy
laplenentaticn
(A) Hav* tiw Region/States
coipleted filed enforceaent
cases against aajor FOWS? If
me, •-ttae is delaying action?
s and the * that are not in
compliance with their schedule
(report OR/.State separately).
(o) Report, by Region, the
raster of aajor facilities
addressed by fonnal enforcement
actions against nuticipalities
that an not complying vitn
their schedules (report
DVState separately).
(c) Report, by State, the
percent reduction in aajor POW
3C vith FtL.
(d) Report, by State, the
nunber of major POIUs required
to develop coiposite correction
plans.
Quarterly
Quarterly
Quarterly
A-lOO
Qtforeenent
crai-Tr;
sins/
:. follow -a
on Xitioral
MnicipU Policy
(contimedl
ID) If there is na;or slippage
in a construction sc*vedUle, is
the Region/State seeking
judicially Imposed schedules?
If not, why not?
(C) Are the Region and the
States enforcing :CP schedules
for affected amors? tten -All
this be copieted?
are the
Regions/States <^o\«yy to
decrease the le-.-ei -t sr with
rs, for aia;or JCTWs?
-------
Qiforcenent
SBC/
sntmnc
3. Ensure
Industrial
Gonpiiance with
ms and Water
Quality Based
Toxic Requirenents
(X) HOW do tin Region and each
state direct compliance •
itoiitoring efforts to enforce
BVT and water quality based
toocic requirements?
(B) Do the Region and each
State tan sufficient
laboratory and biononitoring
capability to conduct the
necessary analysis to support
toxic inspections?
-------
21 SPS/
4. laprow
Quality and
Tiaeliness of
Responses
(Continued)
' <2> Of tttose reported ir.
above. areaJe out ty tM
following categories:
—stsucipal permittees
<3B;or/!iinor.)
««jn-3isucipai permittees
(aajor/ainort
—Federal permittees
—ynperaitted facilities 402
—section 111 actions
-SB* —«
Hist separately. EP*. :*K5
States). Mote: we recognize
tftat in some Regions tnese
responsibilities are split
between Divisions, in mien
ease eacn Division snould
submit data (or its appropriate
piece.
A-10*
4.
Quality ant
Tiaeliness of
(8) Has the Ragion experienced
any prodlejns in effecti-.-eiy
lb) Track -^
(continued)
total amount ii
a penalties
assessed and :Ae anoint of
penalty authority? If so. 'wnat State aAinistrative penalties
itind of probiens?
(CJ la tn* Reqion
to the Guidance on
Penalty Orders,
•T^SE
Tracx.
(01 Has ^e Hegior. experienced v* • jrd •> jz 5>A PCs ur.
an/ promens in carrr-'J? :ut etiect .'u» 30. i?89. v.z.-
tne Class I or Class ': rearing i inai ccrpliarce -litss aetveer.
process? How frequently are JUly i. 17d9 ird ;-r;e 30. I?TO
rin$s requested ;n «acft -r.icn are
out.
=i SRS/ aEsaeac
Quarterly
10/15/89
class?
A-1Q5
-------
tAXES PBCBtBdf AND EHHT5S
Enforcement
4. '
Quality and
Tiaelinsss of
£n£orcenenc
(continued)
(E> How frequently are
cements from tM public
received on penalty orders?
Have any consent decrees been
modified by the » as a result
of public petition? Are there
any final penalty orders for
which tM penalty is overdue
and uncollected for more than
60 days?
asms/
HEPQRTDC
(it Report, ay Region, the
•active State civil case docXet,
the ranter of civil referrals
sent tO'the State Attorneys
General, the ranter of civil
cases filed, the raster of
civil cases concluded, and the
ranter of criminal referrals
filed in State courts.
(2) » of 309 referrals
generated:
—civil referrals sent to
Ves/tto
WQ/E-9
Quarterly
—civil referrals filed;
—criminal referrals filed
(3) Track the ranter of
referrals DO the SPECS states have
administrative penalty
authority? if r«, is sxm
authority under consideration
in any of the state
legislatures? Ooes the state
authority met criteria for
pr*-«ption of Federal action?
(H) Haw frequently does the
Region have to institute
collection actions to collect
3*amstrativ» penalties
assessed?
(5) Report the name and amount
of tm lapsed fron the tiaa of
initiation of the case to
filing and the amount of ti»
lapsed from filing to sicning
of the consent decrees :or each
case. Report £y State
respectively.
If J Identify ty name and :IDES
nuater all permittees with
acti-.ie consent Decrees and
report meir ccnpnance status
•4B follows:
-in compliance with iecrees;
—in -/ioiation sf iecree. but
remedial action ^aten: and
—in yiolatiar. si lecree, ro
second and
Fourth
Quarters
Quarterly
-------
Ehforcarent
SI SHS/
«. laprow
Quality and
Timeliness of
(I)
in)
» of follcw-'-p actions on
pertonnance sainple
results:
(continued)
Are the Regions/States
effectively with
Federal' facility coordinators
to inprove enforcement response
tiaes to instances of —permttees requiring
mneoopliance ay Federal corrective action;
facilities? If not. -Jhat is —aajor permittees ••
the nature of the prablen? Are incomplete reporting
approved states using their
full range of enforcement
authority against Federal
facilities? If so. unat are
the results? If not, wny not?
-------
yMTTj FMH M FVEVI* BHL I3HTS
Qiforcenent
IN SPKSA '
gMttTMBH?
HLH-Hl'lNS
i. t": -309
dual: aid
Tine.--ass of
Otforcenent
Msponses
(continued)
IK) Have the Begicn and
approval states negotiated a
basis for viicnal eqeluation
of tM sta-.rfs' penalty piciyram,
including identification of
sanctions wnich odgnt be used
in Ueu of penalties- and the
dDCmentation which oust be
maintained by the State for
. review? Are states ccnplylng
with the provisions of tne
agreement, on penalties? To
unct extent are states
calculating economic benefit?
Are states seeking penalties in
the majority of cases? Are
States getting the penalty
axutts they are seeking?
(0) What problem is the
Region encountering in
assessing penalties using tne
0* Penalty Policy? Is tfte
Region experiencing
Headquarters reviews? Explain.
Is tne Region generally getting
tne penalty oieunts identified
in tne referral? <*iat
, could be rade to
cne review process to speed
the referral process?
A-1LO
«.
Quality and
Tiaaliness of
Enforcement
DI SRS/
CME2EJI2
HLfCHTIiC
(continued)
(P) Bo Regions/States use PCS
to track compliance with
consent decree scnedules? If
not. wry not?
(Ql '*at types of action are
being taken -f response to
violations of consent decrees?
Are stipulated penalties
collected? Are civil concarpe
proceedings initiated? Are tne
decrees modified? Are
additional conplianoe
monitoring requirements
isposed?
(R) v*iat are the reasons for
the Regiens/Sutes failure to
take remedial action against
permittees that violate Cieir
consent decrees?
IS) 'that problow still need
to be addressed by the
aeqion/States to aaXe tr.e
3«.'CR program sore effective?
Shculd it cover pretreataent?
A-I1I
-------
EnforcenBit
4.
Quality and
Tlaeliness of
Btforcenenc
Responses
(continued)
=f SPK3/
(T) How do Regions/States
ensure tfca quality of data
collected By permittees and
subsequent data transfer, and
data storage in PCS?
«
(L'l How do Regions/states
pronote tenet quality of
future WR data. unm drafting
new peraits?
IV) •<*« PR
res does the
a«gion nave in place to
idoKify criminal cases? vaiac
rale does the Office of
Regional Counsel play in
idBRification and case
deveiopnaK? Has the staff
provided technical support for
criminal investigations and
prosecutors? How ".as the
Region nacie use of VJB new
criminal enforcement
autnorities?
A-112
s.
Otf
Qiforcerant
3QQOCC
gMgrmm
6. Increase use
os PCS is «se
?r»ary Source si
(A) Have ene Region/states
talcon any eiforcenenc actions
to protect uater. including
wetlands, cron urvenutted
discharges of solid 'waste?
1 (B) Has criteria does the
Regioi use in detenaiung 'wnere
spill Prevention control and
Couiteraeasure Plan tnspections
snould be conducted? Does the
•Ugion il'^ays require tnat tne
pun 5e jnenged after a ^pill
of l.ooo gallons or sore?
(Xi Describe tra use of PCS
ay -Ja States and tr* region
and «-> ^3
Z--&LM
A-U3
-------
""•"•"••'""•
6. Increase tM
use Of PCS as the
Primary Source of
NFEE5 and
Prixjidia Data .
(continued)
7. laprove
Effectiveness of
lnspKti.cn
Activities
(C) What actions are
Region/States talcing to
the quality of PCS data?
(D) How is tM Region
encouraging direct State use of
PCS? is the Region giving
priority in assistance am
progran grant funding to states
that are direct users of PCS?
If States are not using PCS
consistent witn the PCS Policy
statement are grant conditions
being imposed to wpertlTe
appliance?
(A) Do the Region/States ham
annual conpliance inspection
plans for each State? How does
the Region provide its states
with advance notice of
inspections? Discuss how
Regional and State efforts are
coordinated. Discuss use of
independent and Joint
inspections and state file
reviews to overview the State
inspection program.
BJSPMS/
REPQRXBG'
(a) Track, by Region, against
targets, tne nutter of major
permittees inspected at least
once (conbine O* and State
inspections and report as one
muter).
YCS/SPMS
WQ/E-12
Quarterly
A-tU
BuTo;
3 SStSf
7. Improve
Effoetivaiess of
inspection
Activities
O) How do Regions/States
determine unicn facility and
••fas. type of inspection to
conduct?
(C) Vfty are total nunber of
inspections large, yet all
majors are not inspected at
least once?
(D) How do Regions/States
detezaiir« -xe road -or
ttwic/toxicity
inspections/ iREs?
(E) Do t£e Regions/States
prepare quarterly lists of
facilities to se inspected? :s
v» ir^peetion aix ccnsister-t
•.•15.1 tse -pri-Tar/ -am* criteria
ir. tfte :sns
strategy?
.fi -tew io tfte aeoicns. States
.use 3-a. CA per:'srwre
results :cr tarretirsg
:ssp::arre inspect ;3rs:
(bi * of inspections:
—tepcic inspections
—aicanrutonng inspections
—permittee inspections
(list separately: Federal.
5%. State; rajor, .itmor;
anicipai. non-nuucipal)
(c) Idottify t^e rur&er of
Regional jnd State inspection
PL3T.S.
8LHJVUC
Quarterly
October 19
A-113
7'-?,-
-------
at sac/-
7.
Effectiveness of
Inspection
Activities
(continued)
(G) wnat »chaius3i is used to
assure that inspection results
are provided to the
Raglans/States in a tfcneiy
ramar? Are the data entered
into ECS only after the report
has been ceupletad and signed
by the reviewer or supervisor?
Hi) How does the Raglan/State
follow-up vitwn Inspection
results an unsatiafactory?
Mien Region uncovers problem.
does tne Region/state follow-up
vitn a Bare intensive
inspection?
(I) Have tne Region/states
verified that Reconnaissance
Inspections of major permittees
counted for coverage purposes
•were conducted at najor
pernittees seating the
requirements specified in the
definition section?
A-U6
Eniorcanent
REPCRTDG
9. '.'pdate and t;se
ProceAjres
(X> aoes each approved State
have written OS procedures?
If not. unit is being done *a
get those procedures in place?
IB> Have the Region/States
implemented use of tne
violation Review Action
Criteria included in the nr
1986 96 as v» basis for
determining -.men violations
should receive professional
rev.ew? So Regions/ States
follow tne Enforcanent Response
Guide (ERG)? If not, vnen will
•^•je aegiorvStates Begin to use*
v*se criteria or equivalent
:r;zeria and -"^ -so?
-------
BtforceBent
«. UpdateandUSe
96 QlXOLTCVBHlt
(continued)
IN SR6X
HSMtl'lNC
(C) Hat kinds of farmi
enforceneRt actions an tne
Hegion/state using? Has the
Region reviewed each States
enforransnc instzumits. to
ensure that they net the
def tuition of formal action?
Haw the states mde any
necessary statutory or
regulatory changes to insure
equivalency at State
attilnisustiva nadianisfli
equivilent to Q* section 309
Ms?
(D) vtiat Kinds of infotnal
actions (if any) are th>
Rogion/Sbates using in lieu of
foraai enforcenent action? Are
tnese actions dccia«ntatj
properly? Are tney effective?
A-118
Enfoicement
3 S»5/
RDO&5C
9. use Guidance
Criteria and
Milestones for
Response
-------
Qtforcewent
S!M3/ . 'RtRKEDC
9. Use Guidance
Criteria and
Milestones far
Response to
Mancojpiiance
(continued)
(B) ttiat aianaqenent level
reviews the Exception List' and
tww is it used? How do ttia
Region and states use the
Deception List to establish a
priority for coswitting
co^liance/enforceBBK
(O Wat problem Have the
Region/State been facing that
would prevent thai f ran matin?
the tineliness presented?
Milch States consistently aiss
(2) Identify by name and
M^ES nuaeer xaior pentuc-ees
ajpearing on tuo or ware
consecutive greas as aeing in
significant noncenpliance ••n^\:
—final effluent Halts (FTLl
—construction scheaues tcs);
—intena effluent Units (Kt)
wltnout being returned to
coapliance or addressed with a
tonal enforceMnt action.
(List separately: aunicipal,
industriai. Federal facilities;
cores states, non-NFDB
States).
lagged
era
(0) Is there consistent
application of the
criteria/milestones fron state
to state within the Region? tf
not. unat stepe is tne Region
planning to take to uprove
consistoicy?
A-120
Siforcement
2J
rw T-VTT'.T
9. Use Guidance
Criteria and
Milestones for
response to
.rgr
(continued)
(1) Report, by Region, tne
reacer of aa;or permittees iTMt
are on we previous exception
list 'rfuc". nave returr^d to
covpiiance during t» quarter.
ue nutter not yet in
ccopiiance but addressed by i
forsial auorcescnt action ay
tra JCl cspiet^on date, and
tse naeer --sat were 'JTresolved
res/No
Quarterly
iSata lagged
one quarter)
t,
-V
during vse quaner or addressed
sf a iaraai aniorcessit acticr.
by tTjB >3Ct cs^iietion datei.
rai iac: :.:::.« ieparaza:y. ;
,,
A-Ul
-------
.Qtforcenent
SFW/
9. us* Outdance
criteria. and
Mlestones for
Response to
(continued)
121 Identify by nan and total
ranter of smjor permittees
listed in the Deception Ust
universe for the previous
quarter for
-------
-------
VII.18.
"Use of Administrative Penalty Orders (APO's) in FY 89", dated
March 13, 1990. Without attachments.
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR I 3 /990
OFFICE OF WATER
MEMORANDUM
SUBJECT: Use of Administrative Penalty Orders (APOs) in FY 89
FROM:- Richard G. Kozlowski, Director,? ;
Enforcement Division
TO:
Robert G. Heiss
Associate Enforcement Counsel for
Water Enforcement
Compliance Branch Chiefs (Regions I - X)
Regional Counsels (Regions I - X)
The purpose of this memorandum is to transmit for your
information a report on the use of administrative penalty orders
in FY 89.
FY 89 was a significant year for implementation of the Clean
Water Act administrative penalty authority. The number of
proposed orders increased 61% over FY 88 and the number of final
orders increased by 417%. As you will see from the report there
were improvements in other indicators as well.
While data for FY 90 indicates that performance to-date is
at approximately the same level as in FY 89, there are at least
four Regions which have not yet issued a proposed order this
year. We would be interested in comments as to why this is the
case and whether it may suggest a lower level of administrative
penalty issuance overall in FY 90.
Attachment
Prim»4ort RtcyUte Pss
-------
-------
ADMINISTRATIVE PENALTY ORDERS
IN FY89
This report summarizes use of administrative penalty orders for
NPDES and pretreatment violations during FY89. The data is drawn
from the Permit Compliance System (PCS), supplemented by hard copy
records as maintained on a dBASE data base management system, and
for final orders has been reviewed by the Regions in the penalty
data review process.
Proposed Orders
EPA proposed a total of 220 administrative penalty orders in FY89.
This was an increase of 61% over the 137 proposed orders in FYS8.
The number of proposed administrative penalty orders by quarter is
shown in Figure 1 below. Each quarter of FY89 showed significant
Proposed Administrative Penalty Orders
zno-ea sra-ea «tn-ae ist-aa 200-99
• Quarterly ActlvFty
Clasa f . r3 Cl
increases over the corresponding quarter in FY88. Also, the
pattern established in FY88 of proposing significantly more
administrative penalty orders in the third and fourth quarters
continued. This uneven quarterly distribution of APO enforcement
activity may represent higher productivity in the third and fourth
quarters caused by SPMS (now STARS) measurements, mid-year reviews,
-------
and other EPA organizational and administrative considerations or
seasonal patterns in regional office enforcement activity where
inspections and enforcement planning occupy more of the first two
quarters and actual enforcement proposals the rest of the fiscal
year. In any event, the third and fourth quarters continue to
produce the most administrative penalty orders.
The increase in the number of
proposed orders was across
the board against municipals,
non-municipals and industrial
users. Figure 2 shows that
the greatest increase was
against industrial users
(84%) ; second greatest
increase was against
municipals (65%); and the
third greatest against non-
municipals (51%).
INCREASE IN PROPOSED APOs
Figure 2
The proportion of proposed
orders which were Class II
decreased from 35% of all
orders in FY88 to 30% in
FY89. The reasons for this
decline are not clear. Some regions have expanded the use of Class
I actions against selected groups of violators and thus reduced the
proportion of Class II actions. These groups have included feed
lot operators, categorical lUs with reporting violations (where the
POTW is not the control authority) , coastal seafood processors,
small oil well drillers
and placer miners.
In FY89 six regions
expanded the total
number of proposed
administrative penalty
orders . Figure 3
indicates the
increase/decrease in
APOs relative to FY88.
55% of all proposed
administrative penalty
orders were issued in
undelegated States. For
the 12 undelegated
States a total of 121
administrative penalty
orders were proposed.
Figure 4 shows use of
administrative penalty
orders in the
Proposed APOs - FY 89 vs FY 88
X.
90-
10'
.10 .
-*9-
' I
!
.
.13
11143I1I*
^
•to
Figure 3
7O^l
-------
30
se
89
24
22
SO
18
16
14
12
10
a
6
•4
3
0
1
TX
PROPOSED APOs - FY89
IN LND6I.EGHTHJ STATES
I
//j
SO
AK Mt OK 10
Figure 4
undelegated States.
In terms of the types of violations cited in the proposed
administrative penalty orders, there was a 162% increase relative
to FY88 in pretreatment APOs. Increases over FY88 were also shown
for administrative penalty orders with effluent violations (54%),
unpermitted and/or unauthorized discharges (39%), and operations
and maintenance violations (800%). The number of facilities cited
for schedule and non-reporting violations decreased slightly from
FY88.
Proposed administrative penalty orders for pretreatment shifted
significantly between FY88 and FY89. As a result of the
Pretreatment Initiative, actions against municipals (POTW's)
increased significantly. Class l APOs against municipals increased
fivefold over FY88; Class 2 APOs increased sevenfold. (See Figure
5 on the next page) . In FY88 a majority of the proposed
pretreatment APOs against municipals were class 1; in FY89 Class
2 APOs were in the majority.
Administrative penalty orders against industrial users were in
sharp contrast. For proposed administrative penalty orders against
industrial users the overwhelming proportion were Class 2 (79%) in
-------
PRETREATMENT APQs AGAINST MUNICIPALS
Figure 5
FY88. In FY89, the
proportion .shifted.
significantly with 80%
being Class l actions.
The reason for this
shift away from Class 2
usage against lUs
appears to be a result
of a shift in the type
of violations cited. In
FY88 the Class 2 actions
tended to be against:
categorical lUs with
serious violations of
their standards. FY89
Class 1 administrative
penalty orders against
lUs tended to be for
failure to submit
periodic reports.
Final Orders
The total penalties for all concluded NPDES administrative penalty
orders in FY89 were $2,801,525. This is an increase of more than
500% over FY88 which was the first full year of implementation.
The total number of final administrative penalty orders was 166,
a fourfold increase over 40 final administrative penalty orders in
FY88. Of the 166 final orders, 120 were Class I penalty orders and
46 were Class II penalty orders. The final penalty orders were
issued for a variety of violations: 83 for effluent violations
(50% of total) ; 39 for pretreatment violations (24%); 11 for
failure to submit discharge monitoring reports or submission of
late reports (7%); 25 for unpermitted facilities or unauthorized
discharges (15%); four for failure to start or complete scheduled
construction (these are frequently NMP violations) (2%); and four
for operations and maintenance violations (2%).
Pe
The average penalty amount for all (166) administrative penalty
orders which became final during FY89 is $16,877. This is a 25%
increase over the FY88 average of $13,545. This significant
increase reflected the greater proportion of class 2 orders among
the final FY89 APOs. Class 2 orders were 28% of the total final
orders in FY89 and 20% of those in FY88. The average penalty for
Class l penalty orders rose slightly to $8,369 from $8,212. The
average penalty for Class 2 orders increased 12% to $39,097 from
$34,875.
The average penalty against municipals increased 48% to $16,343
from $11,067 in FY88. The average penalty against non-municipals
•)\t>
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AVERAGE PENALTY -. FY89
I
§
BT VIOLATION
124,056
S11,700
$10., 319
J7, aso
err lu
oret
Seneo Urpernrt
O fc
Figure 6
increased 32% to $15,311 from $11,627 in FY88. Thus, municipal
violators incurred slightly higher penalties on average than non-
municipal violators (excluding industrial users) . In FY88 there
were no final Class 1 penalties against industrial users. The
average Class 2 penalty against industrial users in FY89 was
$41,583 compared with $40,000 in FY88.
Ajnong the categories of violations for which data is available, the
highest average penalty was for pretreatment violations. (See
Figure 6). The pretreatment average penalty was $24,056. The
second highest and most frequent penalty was for effluent
violations ($16,696). The average penalty for other types of
violations for which data are available are: non-reporting
($12,882), schedule ($11,700), unpermitted or unauthorized
discharges ($10,318) and operations and maintenance violations
($7,850).
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Use Against Maiora . _ '
Over one-half of all final Class 2 administrative.penalty orders
were assessed against facilities classified as Majors. For Class
1 final cases, 27% were assessed against Majors. The overall
percentage for all final orders was 34%. The percentage of final
cases issued to majors by region is shown in-Figure 7.
t
PERCENT APOs ASSESSED AGAINST MAJORS
70*
60S
SOX -
40* -
BY REGION - PY 1989
64*
60*
3D* -
20*
35*
7*
37*
33*
17*
ex
m
Figure 7
Efficiencies of Use
The average penalty order in FY89 was concluded within 156 days of
being issued. Class 1 cases, on an average, took 136 days to
conclude; Class 2 cases, 210 days. In FY88 the average for all
final orders was 136 days; for Class 1 orders, 129 days; and for
class 2 orders, 152 days. Thus the average number of days to
settlement increased for both Class 1 and 2 orders in FY89. The
average for FY89 Class 1 cases increased 7 days or 5% while the
average for FY89 Class 2 cases increased 58 days or 38%.
(Technically, the averages of days to settlement for the FY88 and
FY89 are not comparable since the possible worst case differs by
365 days between FY88 and FY89.)
6
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An analysis of the FY89 Class 1 cases indicates that the average
penalty for the cases concluded in less than 136 days (the average
for Class 1 cases) was $8,715. This compares with the average
penalty of $7,651 for those concluded after 136 days. For class
2 final cases, the same analysis was done. For the cases concluded
in less than 210 days (the average for all Class 2 cases) the
average penalty was $49,631. For the cases- concluded after 210
days the average penalty was $30,200.
and
Significant increases were achieved in FY89 for most major
indicators on administrative penalty orders. The number of
proposed orders increased 61% to 220; the number of final orders
increased 415% to 166; total penalties increased 518% to
$2,801,525; and the average penalty increased 25% to $16,877. It
appears, however, that increases of this magnitude for some of
these indicators were as a result of gaining succesful experience
and use. The level of increase achieved may not be sustainable in
the years to come.
Three major observations were made regarding the proposal of
administrative penalty orders: First, a disproportionate number
of administrative penalty orders were proposed in the third and
fourth quarters. Secondly, there was a decrease in the use of
Class 2 administrative penalty orders in general and against
industrial user violators, specifically. Third, 45% of the
administrative penalty orders were issued in delegated States.
For final orders the major observations were: Increases in average
penalty for both class 1 and Class 2 final orders; a significant
increase (48%) in the average penalty against municipals so that
the average penalty for municipals exceeded that of non-municipals;
use against majors for over one-third of the APOs; and an increase
in the number of days between proposal and the final date to an
average of 156 days. Also, it appears that the longer a case takes
to conclude, on average, the lower the penalty.
Strategies for using administrative penalty orders seem to vary by
region. Most obviously, Region IV uses predominantly Class 1
orders; while Regions V and VII predominantly use class 2 orders.
Three regions did not increase their use of APOs in FY89; the rest
did. Three regions settle orders, on average, much faster than
others. For pretreatment violations six regions issued APOs
against Industrial Users; nine Regions issued them against
municipals.
In summary, FY89 was a year of major increases in the use of
administrative penalty orders. Its predominant use continues to
be against violators of permit effluent limits but its flexibility
as an enforcement tool was shown in the sharp increase in use
against pretreatment violators. The number of APOs proposed in the
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first quarter of FY90 increased over the first quarter of FY89.
However, use in the first quarter was limited to only six regions.
Additional graphs and information on FY89 administrative penalty
orders is provided in the following attachments: (1) the number of
administrative penalty orders proposed by Region; (2) average
penalty by Region; (3) average time to settlement; (4) highest
penalty by Region; (5) number of proposed pretreatment APOs by
Region a list of final administrative penalty orders by Region and
state; (6) a list of proposed and final orders by Region and state;
and (7) a list of final administrative penalty orders by violation
and type.
8
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a..' Total Penalties and Number and Type of Cases -
In FY89 the total penalties for all concluded NPDES
administrative penalty orders was $2,801,525. This was an
increase of 500% over.FY88. which was the first full year of
'implementation.- The total "•number* of fi«al«radministrat;ive''-penalty
•orders was 166, a four-fold-increase over the 40 final
administrative penalty orders in FY38. Of the 166 concluded
administrative penalty orders, 120 were Class I penalty orders
and 46 were Class II penalty orders. The penalty orders were.
issued for a variety of violations: effluent violations (83);
pretreatment violations (39); failure to submit discharge
monitoring reports or submission of late reports (11);
unpermitted facilities or unauthorized discharges (25); failure
to start or complete scheduled construction (these are frequently
National Municipal Policy violations) (4); and operations and
maintenance violations (4).
b. Efficiencies of Use
The administrative penalty orders in FY89 were
concluded, on an average, within 156 days of being issued. Class
I cases, on an average, took 136 days to conclude; Class II
cases, 210 days. All of the penalty orders concluded in FY89
were achieved by consent order; none of the concluded cases were
decided as a result of a formal hearing.
c. Typical Penalties
The median penalty for administrative penalty orders
concluded in FY89 was $10,000. This was in increase of 18% over
the FY88 median penalty. The median for Class I actions was
$5,750 and for Class II actions $35,000. Ninety cases were
concluded with penalties of $10,000 or more.
d. Penalties Issued to Municipalities
Sixty-one of the 166 respondents were municipalities.
The median penalty assessed against municipalities ($10,000) was
identical to the median penalty for all administrative penalty
orders concluded in FY89.
e. Pretreatment Penalties
Thirty-nine penalties were issued for pretreatment
violations, 27 to industrial users (lUs) and 12 to municipalities
for failure to implement all or part of a pretreatment program.
The median penalty assessed against lUs was $14,000; the median
penalty assessed against a municipality was $18,750.
f. Highest^Penalties
The largest penalty order concluded in FY89 was issued
by Region I against an industrial user, Imperial Pearl Company,
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for $100,000. The.next highest, issued by Region VI, was for
$98,000 against AT&T Information Systems Inc. The highest .
penalty against a municipality.was for $65,000, issued to the
City of McAllen, Texas.
- • *~ *'----q; ••»--Comparison 'of-'Rgai=onal"
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IH1P.'
VII.20.
11FY 1990 Guidance for Reporting and Evaluating POTW Noncompliance
with Pretreatment Implementation Requirements", dated September
27, 1989. Reproduced at VI.B.33. this compendium.
1
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