CLEAN WATER ACT COMPLIANCE/ENFORCEMENT POLICY COMPENDIUM
(Updated 9/1/90)
i. INTRODUCTION
I. OVERVIEW AND GENERAL REFERENCE DOCUMENTS (1) *
II. NPDES PROGRAM: PRE-ENFORCEMENT
A. SOURCES OF EFFLUENT LIMITATIONS AND OTHER REQUIREMENTS (2)
B. INSPECTIONS (2)
C. MEASURING COMPLIANCE/DATA PROCESSING (3)
III, ADMINISTRATIVE ENFORCEMENT
A. ADMINISTRATIVE COMPLIANCE ORDERS (4)
B. ADMINISTRATIVE PENALTY ORDERS (5)
IV. CIVIL LITIGATION
A. GENERAL (6)
B. ENFORCEMENT CASE MANAGEMENT PROCEDURES (6)
C. PENALTIES AND TERMS OF SETTLEMENT (9)
D. ENFORCING JUDGEMENTS AND DECREES (10)
V. CRIMINAL .LITIGATION/ENFORCEMENT (11)
VIw SPECIALIZED TOPICS
A. NATIONAL MUNICIPAL POLICY (12) G. FEDERAL FACILITIES (17)
B. PRETREATMENT (13) H. OVERSIGHT & STATE
PROGRAM COORDINATION (17)
C. SECTION 311 (15)
I. PROVIDING ENFORCEMENT
OT D. CITIZEN SUITS (16) INFORMATION TO OUTSIDE
31 PARTIES (18)
lO
E. SECTION 404 (16) J. TOXICS/TOXICITY CONTROL (18)
F. CONTRACTOR LISTING (17)
VII. ANNUAL DOCUMENTS AND SHORT-TERM INITIATIVES (18)^
^-Numbers adjacent to headings and sub-headings refer to pages in detailed
»le of Contents which follows.
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TABLE OF CONTENTS (Updated 9/1/901
(Detailed)
OVERVIEW AND GENERAL REFERENCE DOCUMENTS
1."Permits Division Policy Book", dated June 23, 1982. Table of
Contents by date and by subject only. Copies of individual documents
may be obtained from Permits Division, OWEC. (EN-336).
2. "Working Principles Underlying EPA's National
Compliance/Enforcement Programs", dated November 22, 1983. See
GM-24.1
3. "CLEAN WATER ACT COMPLIANCE/ENFORCEMENT GUIDANCE MANUAL", dated May
1985. Table of Contents and Chapter Contents pages only. Copies of
the manual or portions may be obtained from Program Development and
Training Branch, Office of Enforcement Policy OE (L"E-133').
4. "ENFORCEMENT MANAGEMENT SYSTEM GUIDE", dated February 27, 1986,
(updates interim document dated September 27/1985). Table of
Contents and Chapters 1 and 2 only.2 .
5. "General Enforcement Policy Compendium", updated December, 1988.
Table of Contents and Topical Index Only. Contains policies numbered
GM-1 thru GM-74. Copies of individual policies may be obtained from
Legal Enforcement Policy Branch, Office of Enforcement Policy, OE
(LE-130-A).
6. Current and Future Fiscal Year Agency and Office of Water
permitting and Enforcement Priorities. (See Section VII of this
table.)
7. "GUIDANCE FOR OVERSIGHT OF NPDES PROGRAMS", dated May 1987.
.-•'•'.' 'f
8; "Action Plan on Pollution Prevention", dated April 13, 1989.
1 For information on obtaining copies of "GM" documents
referenced in this Table of Contents, see General Enforcement
Policy Compendium, Item 1-5 of this Table of Contents.
2 For information on the method of obtaining copies of the
documents noted in or omitted from this Table of Contents, please
contact the Director of the Enforcement Division, Office of Water
Enforcement and Permits (EN-338).
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II. NPDES PROGRAM: PRE-ENFORCEMENT
A. SOURCES OF EFFLUENT LIMITATIONS AND OTHER REQUIREMENTS
1. "N.PDES Permit Authorization to Discharge", dated April 28,
1976.
2. "POTW Compliance with NPDES Permit Effluent Limitations",
dated January 5, 1977.
.3. "Confidentiality of NPDES Permit Applications" dated April 6,
197,8 with attached memorandum dated March 22, 1978.
4. "Certification and Permitting of Dischargers Located on
Waters Forming Boundaries Between States", dated April 19, 1978.
5. "Request for a Legal Opinion-Inclusion of Compliance
Schedules in Second Round Permits and Newly Issued Permits",
dated January 19, 1979.
6. "Policy for the Second Round Issuance of NPDES Industrial
Permits", dated June 2, 1982.
7. "Policy for the Development of Water Quality-Based Permit
Limitations for Toxic Pollutants", dated February 3, 1984. (See
also 49 FR 9016, March 9, 1984.)
8. "Continuance of NPDES General Permits under the APA", dated
January 16, 1984.
9. Summaries of NPDES Permit Decisions by the Administrator and
Judicial Officer (Issued irregularly. For copies of summaries,
contact the Permits Division, OWEC, EN-336).
10. "Training Manual for NPDES Permit Writers" dated May, 1987.
Table of Contents only. Available from Permits Division, OWEC,
(EN-336).
B. INSPECTIONS
1. "Visitor's Releases and Hold Harmless Agreements as a
Condition to Entry to EPA Employees on Industrial
Facilities",dated November 8, 1972. See GM-1.
2. "Conduct of Inspections after the Barlow Decision dated
April 11, 1979. See GM-5.
3. "NPDES Compliance Sampling Inspection Manual", dated October
1979. Table of Contents only.
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4. "Interim NPDES Biomonitoring Inspection Manual", dated
October 1979. Table of Contents only.
5. "NPDES Compliance Monitoring Inspector Training, with Modules
on Overview, Legal Issues, Sampling Procedures, Biomonitoring,
Laboratory Analyses Modules", dated 1988. Table of Contents of .
individual modules only.
6. "NPDES Compliance Evaluation Inspection Manual", dated
January 1981. Table of Contents only.
7. "Neutral Inspection Plan for the NPDES Program", dated
February 17, 1981.
8. "NPDES INSPECTION STRATEGY AND GUIDANCE FOR PREPARING
ANNUAL STATE/EPA COMPLIANCE INSPECTION PLANS", dated April
1985 with transmittal dated April 16, 1985.
9. "NPDES COMPLIANCE INSPECTION MANUAL", dated January, 1988.
Table of Contents only. Replaces June, 1984 edition.
10. "Use of the New NPDES Compliance Inspection Form", dated May
14, 1985.
11. Pretreatment Compliance and Audit Manual for Approval
Authorities. See VLB.24.
12. "NPDES Compliance Flow Measurement Manual", dated September,
1981. Table of Contents only.
13. "Guidelines on Requirements for Exceptions for NPDES
Inspector Training", dated January 28, 1990. Without
attachments.
MEASURING COMPLIANCE/DATA PROCESSING
1. "PERMIT COMPLIANCE SYSTEM DATA ENTRY, EDIT AND UPDATE MANUAL;
INQUIRY USER'S GUIDE; PCS GENERALIZED RETRIEVAL MANUAL;
EDIT/UPDATE ERROR MESSAGES," updated July, 1990. Table of
Contents only.
2. The "GREAT System" (General Record of Enforcement Actions
Tracked), circa 1980. The GREAT System tracks EPA-issued
Administrative Orders (AOs) and Notices of Violation issued from
the commencement of the system until September 30, 1987. Requests
for retrievals should be addressed to Mary Gair, OWEP, FTS
475-8557. See also ii.c.10.
3. "PCS Data Element Dictionary", updated July 2, 1990 and "PCS
Codes and Descriptions Manual", updated June 9, 1989. Table of
Contents only.
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4. "NPDES Self-Monitoring System User Guide", dated January
1985. Table of Contents only.
5. "Release and Description of Significant Violator Lists",
dated March 8, 1984. '
6. "PERMIT COMPLIANCE SYSTEM (PCS) POLICY STATEMENT", dated
October 31, 1985. (appendices updated March 23, 1988)
7. "GUIDANCE FOR PREPARATION OF QUARTERLY AND SEMI-ANNUAL
NONCOMPLIANCE REPORTS", March 13, 1986, with transmittal letter.
Table of Contents.
8. "Managers' Guide to the Permit Compliance System" June,
1986. Table of Contents only.
9. "Guide to PCS Documentation" June, 1986. Table of contents
only. (Information only; no longer current).
10. "General Record of Enforcement Actions Tracked (GREAT)
Conversion to Permit Compliance System (PCS)", dated July 24,
1987. Supplements II.C.2. (Conversion completed prior to January
. 1, 1988).
11. "GUIDANCE FOR REPORTING AND EVALUATING POTW NONCOMPLIANCE
WITH PRETREATMENT IMPLEMENTATION REQUIREMENTS", dated September,
1987.
12. "PCS PC PERSONAL ASSISTANCE LINK USERS GUIDE", updated
December 21, 1988. Table of Contents only.
III. ADMINISTRATIVE ENFORCEMENT
A. ADMINISTRATIVE COMPLIANCE ORDERS
1. "Effect of Compliance with Administrative Orders", dated June
29, 1984.
2. "Use of Stipulated Penalties in Administrative Orders on
Consent under the CWA", dated September 6, 1985.
3. "Remittance of Fines and Civil Penalties" dated April 15,
1985. See GM-38.
4. "Recommended Format for CWA Section 309 Administrative
Orders", dated July 30, 1985 (Incorporated in III.A.5).
5. "REFERENCE DOCUMENT ON GUIDANCE AND PROCEDURES FOR
ADMINISTRATIVE ORDERS ISSUED UNDER SECTION 309 OF THE CLEAN
, WATER ACT" dated September 26, 1986, Cover Memorandum, Table of
Contents and Section I only.
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6. "Relationship of Section 309(a) Compliance Orders to
Section 309(g) Administrative Penalty Procedures", distributed
August 28, 1987. This document is reproduced at III.B.3, of
this compendium.
B. ADMINISTRATIVE PENALTY ORDERS
1. "Guidance on Class I Clean Water Act Administrative Penalty
Procedures", dated July 27, 1987 and noted at 52 FR 30730 (August
17, 1987).
2. " Final Rules of Practice Governing the Administrative
Assessment of Class II Civil Penalties under the Clean Water
Act," issued June 12, 1990, effective July 12, 1990. Published
at 55 F.R. 23838 (June 12). Replaces the Interim Final Rules
dated August 10, 1987.
3. "Relationship of Section 309(a) Compliance Orders to Section
309(g) Administrative Penalty Proceedings", distributed August
28, 1987. Includes transmittal memorandum covering items III.B.3
through 11, this Compendium.
.4. "Guidance on Choosing Among Clean Water Act Administrative,
Civil and Criminal Enforcement Remedies", distributed August 28,
1987.
5. "Guidance on State Action Preemption Civil Penalty Actions
under the Federal Clean Water Act", distributed August 28, 1987.
6. "Guidance on "Claim-Splitting" in Enforcement Actions under
the Clean Water Act", distributed August 28, 1987.
7. "Guidance on Retroactive Application of New Penalty
Authorities under the Clean Water Act", distributed August 28,
1987.
8. "Guidance on Effect of Clean Water Amendment Civil Penalty
Assessment Language", distributed August 28, 1987.
9. "Addendum to the Clean Water Act Civil Penalty Policy for
Administrative Penalties", distributed August 28, 1987.
10. "Guidance on Notice to Public and Commenters in Clean Water
Act Class II Administrative Penalty Proceedings", distributed
August 28, 1987.
11. "Guidance Regarding Regional and Headquarters Coordination
on Proposed and Final Administrative Penalty Orders on Consent
under New Enforcement Authorities of the Water Quality Act of
1987", distributed August 28, 1987.
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12. "Use of Administrative Penalty Orders (APO'S) in FY 89",
dated March 13, 1990. This document is reproduced at VII.IS.
below.
IV. CIVIL LITIGATION . '
A. GENERAL
1."Professional Obligations of Government Attorneys", dated April
19, 1976. See GM-2.
2."General Operating Procedures for EPA's Civil Enforcement
Program", dated July 6, 1982. See GM-12.
3."Clearance of Significant Enforcement Pleadings", dated January
25, 1983.
4."Regional Counsel Reporting Relationship", dated August 3,
1983. See GM-16.
5."Implementing Nationally Managed or Coordinated Enforcement
Actions", dated December 26, 1984. See GM-35.
6."Guidance on Choosing Among Clean Water Act Administrative,
Civil and Criminal Enforcement Remedies", distributed August 28,
1987. This document is reproduced at III.B.4., this compendium.
7."Guidance on State Action Preemption Civil Penalty Actions
under the Federal Clean Water Act", distributed August 28, 1987.
This document is reproduced at III.B.5., this compendium.
8."Guidance on "Claim-Splitting" in Enforcement Actions under the
Clean Water Act", distributed August 28, 1987. This document is
reproduced at III.B.6., this compendium.
9."Guidance on Retroactive Application of New Penalty Authorities
under the Clean Water Act", distributed August 28, 1987. This
document is reproduced at III.B.7., this compendium.
10."Guidance on Effect of Clean Water Amendment Civil Penalty
Assessment Language", distributed August 28, 1987. This document
is reproduced at III.B.8., this compendium.
11."Issuance of Guidance Interpreting 'Single Operational
upset"1, dated September 27, 1989.
B. ENFORCEMENT CASE MANAGEMENT PROCEDURES
1."MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENT OF JUSTICE
AND THE ENVIRONMENTAL PROTECTION AGENCY", dated June 15, 1977.
See GM-3. (Amended by IV.B.29)
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2."Memorandum of understanding Between the U.S. Coast Guard and1
the Environmental Protection Agency" dated August 14, 1979.
outdated (See this index, Section VI.C.5.).
3."Allocation of Litigation Responsibilities Between Regional and
Headquarters Components of Office of General Counsel", dated
December 14, 1979.
4."Contacts with Defendants and Potential Defendants in
Enforcement Litigation", dated October 7, 1981. See GM-6.
5."Quantico Guidelines for Enforcement Litigation", dated April
8, 1982. See GM-8.
6."Section Directives Concerning 60 Day Report and Processing New
Referrals", dated June 22, 1982.
7."Request to Department of Justice to Withhold Action in
Referred Cases", dated September 3, 1982.
8."Case Referrals for Civil Litigation", dated September 7, 1982.
See GM-13.
9."Procedure for Withholding filing of Referred Cases", dated
September 8, 1982.
10."Clearance of Briefs and Significant Pleadings", dated Octobe^
27, 1982.
11."Civil Litigation Referral Packages", dated December 2, 1982.
12."Headquarters Review of Pleadings", dated December 2, 1982.
13."Responsibility for Handling Judicial Appeals Arising Under
EPA's Civil Enforcement Program", dated December 14, 1982.
14."Deferral in Filing Cases at the Request of EPA Attorneys",
dated January 31, 1983.
15. "Case Management Procedures for Civil Water Referrals", dated
March 28, 1983.
16. "Program Concurrence on Civil Referrals", dated July 20,
1983.
17. "Program Review of Civil Water Cases", dated July 20, 1983.
18. "DIRECT REFERRAL MEMORANDUM", dated September 29,
1983.(Amended by IV.B.29)
19. "Implementation of Direct Referrals for Civil Cases", dated
November 28, 1983. See GM-18.
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20. "Guidance on Evidence Audit of Case Files", dated December
30, 1983. See GM-20.
21. "Headquarters Review and Tracking of Civil Referrals", dated
March 8, 1984.
22. "Delegation of Authorities to the Deputy Administrator",
dated March 19, 1984.
23. "Races to the Courthouse", dated March 20, 1984.
24. "Guidance for Enforcing Federal District Court Orders", dated
May 8, 1984. This document is reproduced at Section IV D.I.,
this compendium.
25. "Guidance on Counting and Crediting Civil Judicial
Referrals", dated June 15, 1984. See GM-29.
26. "Revised Regional Referral Package Cover Letter and Data
Sheet" dated May 30, 1985. See GM-40.
27. "FORM OF SETTLEMENT OF CIVIL JUDICIAL CASES", dated July 24,
1985. See GM-42.
28. "Direct Referrals Clean Water Act - 'No Permit' Cases", dated
September 11, 1985.
29. "Direct Referrals", dated August 28, 1986.
30. "Expanded Civil Judicial Referral Procedures", dated August
28, 1986. See also GM-50.
31. "EPA Policy on the Inclusion of Environmental Auditing
Provisions in Enforcement Settlements", dated November 14, 1986;
See GM-53. Supplements GM-17.
32. "Interim Guidance on Joining States as Plaintiffs," dated
December 24, 1986, as corrected February 4, 1987.
33. "Expansion of Direct Referral Cases to the Department of
Justice", dated January 14, 1988. See GM-69.
34. "Delegation of Concurrence and Signature Authority", dated
January 14, 1988. See GM-70.
35. "Enforcement Docket Maintenance", dated April 8, 1988.
36. "Process for Conducting Pre-Referral Settlement Negotiations
on Civil Judicial Enforcement Cases", dated April 13,1988. See
GM-73.
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37. "Criteria for Active OECM Attorney Involvement in Cases",
dated May 22, 1988.
38. "Withdrawal of Referrals and Issuance of 'Hold' Letters",
•dated February 24, 1989. •
39. "Agency Judicial Consent Decree Tracking and Follow-up
Directive", dated January 11, 1990. Attached to IV.D.4. this
compendium.
PENALTIES AND TERMS OF SETTLEMENT
1. "Civil Penalty Policy", dated July 8, 1980 (for reference
only).
2. "GUIDANCE FOR DRAFTING JUDICIAL CONSENT DECREES", dated
October 19, 1983. See GM-17.
3. "New Civil Penalty Policy", dated February 16, 1984. See
GM-21.
4. "A Framework for Statute Specific Approaches to Penalty
Assessment", dated February 16, 1984. See GM-22.
5. "GUIDANCE FOR CALCULATING ECONOMIC BENEFIT OF NON-COMPLIANCE
FOR A CIVIL PENALTY ASSESSMENT", dated November 5, 1984. See
GM-33.
6. "Penalty Calculations Compliance Schedule for Pretreatment
Enforcement Initiative", dated February 19, 1985. (See Also
IV.C.10)
7. "Enforcement Settlement Negotiations", dated May 22, 1985. See
GM-39.
8. "Headquarters Approval of Proposed Civil Penalties", dated May
31, 1985.
9. "Division of Penalties with State and Local Governments",
dated October 30, 1985.
10. "CLEAN WATER ACT CIVIL PENALTY POLICY", dated February 11,
1986. Also see Addendum at III.B.9.
11. "Letter of the Administrator to James Borberg, President of
the Association of Metropolitan Sewerage Agencies", (concerning
penalties against municipalities), dated October 21, 1986.
12. "Guidance on Calculating after Tax Net Present Value of
Alternative Payments", dated October 28, 1986. See also GM-51.
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13. "Guidance on determining Violator's Ability to Pay a Civil
Penalty", dated December 16, 1986. See GM-56.
14. "Addendum to the Clean Water Act Civil Penalty Policy for
Administrative Penalties", distributed August, 1987. (This
document is reproduced at III.B.9., this compendium).
15. "November 4, 1987 Congressional Testimony on Proposed
Amendments to the Clean Water Act", dated November 24, 1987.
Includes DOJ and EPA Testimony on "Environmental Improvement
Projects".
16. "GUIDANCE ON PENALTY CALCULATIONS FOR POTW FAILURE TO
IMPLEMENT APPROVED LOCAL PRETREATMENT PROGRAMS", dated December
22, 1988. Displayed at VLB. 30.
17. "Guidance on the Distinction Among Pleading, Negotiating and
litigating Civil Penalties for Enforcement Cases under the Clean
Water Act", dated January 19,1989.
18. "Use of Stipulated Penalties in EPA Settlement Agreements",
dated January 11, 1990.
19. "Multi-Media Settlements of Enforcement Claims", dated
February 6, 1990.
20."Documenting Penalty Calculations and Justifications in EPA
Enforcement Actions", dated August 9, 1990.
ENFORCING JUDGEMENTS AND DECREES
1. "Guidelines for Enforcing Federal District Court Orders",
dated April 18, 1984. See GM-27.
2. "Procedures for Assessing Stipulated Penalties", dated January
11, 1988. See GM-67.
3. "Guidance on Certification of Compliance with Enforcement
Agreements", dated July 25, 1988, see GM-74.
4. "Manual on Monitoring and Enforcing Administrative and
Judicial Orders", dated February 6, 1990. Transmittal
Memorandum, Summary Introduction, and Table of Contents only.
5. "Agency Judicial Consent Decree Tracking and Follow-up
Directive", dated January 11, 1990.
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V. CRIMINAL LITIGATION /ENFORCEMENT3
1. "Agency Guidelines for Participation in Grand Jury Investigations",
dated April 30, 1982. See GM-9. '
2. "Criminal Enforcement Priorities for the EPA", dated October 12,
1982. See GM-14.
3. "Analysis of Existing Law Enforcement Emergency authorities",
dated March 6, 1984.
4. "Guidelines on Sampling, Preservation, and Disposal of Technical
Evidence in Criminal Enforcement Matters", dated April 18, 1984.
5. "Guidance Concerning Compliance with the Jencks Act", dated
November 21, 1983. See GM-23. Superseded and replaced by V.8. below.
6. "Policy and Procedure on Parallel Proceedings at the EPA", dated
January 23, 1984. See GM-30. Superseded.
7. "The Use of Administrative Discovery Devices in the Development of
Cases Assigned to the Office of Criminal Investigations" , dated
February 16, 1984. See GM-36.
8. "Guidance Concerning Compliance with the Jencks Act" dated March
8, 1984.
9. "Functions and General Operating Procedures for the Criminal
Enforcement Program", dated January 7, 1985. See GM-15.
10. "The Role of EPA Supervisors during Parallel Proceedings", dated
March 12, 1985. See GM-37. Superseded.
11. "Environmental Criminal Conduct Coming to the Attention of Agency
Officials and Employees", dated September 21, 1987.
12. "Procedures for Requesting and Obtaining Approval of Parallel
Proceedings", dated June 15, 1989. Excludes attachment entitled
"Guidelines on Investigative Procedures for Parallel Proceedings".
13. "Revised EPA Guidance for Parallel Proceedings", dated June 21,
1989. This document together with V.12. above, supersedes and
replaces the documents at V.6.,V.7., and V.10. This document is
supplemented by the document at V.14.
3 Memoranda in this Section are particularly germane to
water enforcement and do not comprise a comprehensive listing of
all criminal enforcement policies.
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14. "Supplement to Parallel Proceedings Guidance and Procedures for
Requesting and Obtaining Approval of Parallel Proceedings", dated July
18, 1990.
VI. SPECIALIZED ENFORCEMENT TOPICS •
A. NATIONAL MUNICIPAL POLICY
1. "Municipal Enforcement Case Requirements", dated December 14,
1982.
2. "CWA Municipal Enforcement Cases", dated January 3, 1983.
3. NATIONAL MUNICIPAL POLICY, 49 FR 3832 (January 30, 1984).
4. "Municipal Enforcement: The Financial Ability Question", dated
February 17, 1984.
5. "Financial Capability Guidebook", dated March 1984. (Table of
Contents only)
6. "Eligibility for Variances under Section 301(i)(l) of the
CWA", dated April 11, 1984.
7. "REGIONAL AND STATE GUIDANCE ON THE NATIONAL MUNICIPAL
POLICY", dated March, 1984.
8. "Available Techniques for Obtaining Compliance with National
Municipal Policy by Unfunded POTWs Requiring Construction", dated
September 13, 1984.
9. "Finance Manual for Wastewater Treatment Systems", dated April
1985. (Table of Contents only)
10. "NATIONAL MUNICIPAL POLICY IMPLEMENTATION", dated April 1,
1985.
11. "NATIONAL MUNICIPAL POLICY IMPLEMENTATION", dated April 12,
1985.
12. Letter to House of Representatives from EPA regarding the
NMP with Congressional Record materials attached, dated July 22,
1985.
13. "IMPLEMENTATION OF THE NMP", dated July 24, 1985.
14. "Relationship Between the National Municipal Policy and
Construction Grants Extending Beyond FY 1988", dated July 26,
1985. (See also number 12 above for a copy of the letter
referenced in this document)
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15. Speech by Assistant Administrator, OECM to Association of
Metropolitan Sewerage Agencies, dated August 8, 1985.
16. "HIGHLIGHTS FROM DECIDED AND SETTLED CASES UNDER THE NMP",
dated August 27, 1985. '
17. "DEADLINES AND THE NATIONAL MUNICIPAL POLICY", dated January
30, 1986.
18. "Letter of the Administrator to James Borberg, President of
the Association of Metropolitan Sewerage Agencies", (concerning
penalties against municipalities), dated October 21, 1986, (See
No. IV.C.ll this Compendium).
19. "National Municipal Policy Litigation," dated December 23,
1986.
20. "Interim Guidance on Joining States as Plaintiffs," dated
December 24, 1986, as corrected February 4, 1987. Reproduced at
IV.B.32., this compendium.
21. "National Municipal Policy Enforcement", dated September 22,
1987, with attachment.
22. PRESS BRIEFING MUNICIPAL COMPLIANCE WITH THE CLEAN WATER
ACT", dated July 27, 1988. Selected portions.
B. PRETREATMENT
1. "Coordination Between Regional Enforcement and Water Programs
Personnel in Implementing the National Pretreatment Program",
dated November 29, 1978.
2. "Incorporation of Pretreatment Program Development Compliance
Schedules into POTW NPDES Permits", dated January 28, 1980.
3. "Statutory Deadlines for Compliance by Publicly Owned
Treatment Works Under the CWA", dated March 4, 1983.
4. "Example Language for Modifying NPDES Permits for Pretreatment
Program Approval", dated September 22, 1983.
5. "Procedure Manual for Reviewing a POTW Pretreatment Program
Submission", dated October 1983. Table of Contents only.
6. "GUIDANCE MANUAL FOR POTW PRETREATMENT PROGRAM DEVELOPMENT",
dated October 1983. Table of Contents only.
7. "Guidance Manual for Electroplating and Metal Finishing
Pretreatment Standards", dated February 1984. Table of Contents
only.
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8. "Implementation of Pretreatment Standards While Litigation
Continues", dated May 2, 1984.
9. "Guidance Manual for Pulp, Paper, and Paperboard and Builder's
Paper and Board Mills Pretreatment Standards1', dated July 1984.
Table of Contents only.
10. "Guidance to POTWs for Enforcement of Categorical Standards",
dated November 5, 1984.
11. "POTW PRETREATMENT MULTI-CASE ENFORCEMENT INITIATIVE", dated
December 31, 1984. Attachments A and B excluded.
12. "EXAMPLE PERMIT LANGUAGE REQUIRING POTWS TO IMPLEMENT
PRETREATMENT PROGRAMS", dated February 22, 1985.
13. "Guidance on Enforcement of Prohibitions Against Interference
and Pass Through", dated May 3, 1985.
14. "Obtaining Approval of Remaining Local Pretreatment
Programs—Second Round Referrals of the Municipal Pretreatment
Enforcement Initiative", dated June 12, 1985. (Categorization of
POTWs within Regions excluded)
15. "Applicability of Categorical Pretreatment Standards to
Industrial Users of Non-Discharging POTWs", dated June 27, 1985.
16. "Guidance Manual for Preparation and Review of Removal Credit
Applications", dated July 1985. Table of Contents only.
17. "Local Limits Requirements for POTW Pretreatment Programs",
dated August 5, 1985.
18. "Guidance Manual for Iron and Steel Manufacturing
Pretreatment Standards", dated September 1985. Table of Contents
only.
19. "Guidance Manual for the Use of Production-Based Pretreatment
Standards and the Combined Wastestream Formula", dated September
1985. Table of Contents only.
20. "Guidance Manual for Implementation of Total Toxic Organics
(TTO) Pretreatment Standards", dated September 1985. Table of
Contents only.
21. "GUIDANCE ON OBTAINING SUBMITTAL AND IMPLEMENTATION OF
APPROVABLE PRETREATMENT PROGRAMS", dated September 20, 1985.
22. "CHOOSING BETWEEN CLEAN WATER ACT § 309(b) and 309(f) AS A
CAUSE OF ACTION IN PRETREATMENT ENFORCEMENT CASES", dated
September 20, 1985.
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23. "RCRA Information on Hazardous Wastes for Publicly Owned
Treatment Works", dated September 1985. Table of Contents only.
24. "Pretreatment Compliance Inspection and Audit Manual for
Approval Authorities", dated July, 1986. Table of Contents only.
25. "Pretreatment Compliance Monitoring and Enforcement Guidance"
(for Publicly Owned Treatment Works) dated July, 1986 (Printed
September, 1986). Table of Contents only.
26. "Interim Guidance on Appropriate Implementation Requirements
in Pretreatment Consent Decrees," dated December 5, 1986.
Attachments excluded.
27. "Guidance for Reporting and Evaluating POTW Noncompliance
with Pretreatment Implementation Requirements", dated September,
1987. (This document is reproduced at II.C.ll of this
compendium).
28. "Guidance Manual on the Development and Implementation of
Local Discharge Limitations Under the Pretreatment Program",
dated November 1987. Indices and Tables of Content, only.
29. "GUIDANCE ON BRINGING ENFORCEMENT ACTION AGAINST POTW'S FOR
FAILURE TO IMPLEMENT APPROVED PRETREATMENT PROGRAMS", dated
August 4, 1988.
30. "GUIDANCE ON PENALTY CALCULATIONS FOR POTW FAILURE TO
IMPLEMENT APPROVED PRETREATMENT PROGRAMS", dated December 22,
1988.
31. "ENFORCEMENT INITIATIVE FOR FAILURE TO ADEQUATELY IMPLEMENT
APPROVED LOCAL PRETREATMENT PROGRAMS", dated February 1, 1989.
32."Guidance For Developing Control Authority Enforcement
Response Plans", dated September, 1989. Table of Contents only.
33."FY 1990 Guidance for Reporting and Evaluating POTW
Noncompliance with Pretreatment Implementation Requirements",
dated September 27, 1989.
C. SECTION 311*
1. "Oil Spill Enforcement", dated January 8, 1974. Outdated.
4 Recent passage of the Oil Pollution Act of 1990 has
rendered all but one of the documents in this section outdated.
The outdated documents are so marked.
-------
16
2. "Civil Penalties Collected for Violations of 40 C.F.R. Part
112" - Transraittal to USCG Districts of Deposit in Revolving Fund
Account, dated December 24, 1974. Outdated.
3. "Spill Prevention Control and Countermeasure (SPCC) Plan
Program", dated April 23, 1975. Outdated.
4. "Penalty Assessment Procedures under Section 311(j)(2)", dated
March 29, 1976. Outdated.
5. "Memorandum of Understanding Between the U.S. Coast Guard and
the EPA", dated August 24, 1979. Outdated.
6. "Jurisdiction over Intermittent Streams under § 311 of the
CWA", dated March 4, 1981.
7. "EPA Authority to Seek Court Imposed Civil Penalties Under
Section 311(b)(6) of the CWA", dated November 19, 1984.
Outdated.
D. CITIZEN SUITS
1. "EPA Response to Citizen Suits", dated July 30, 1984.
2. "Clean Water Act Citizen Suit Issues Tracking System", dated
October 4, 1985.
3. "Notes on Section 505 CWA Citizen Suits," dated February 3,
1986.
4. "Clean Water Act Section 505: Effect of Prior Citizen Suit
Adjudications or Settlement on the United States Ability to Sue
for same violations", dated June 19, 1987.
5. "Procedures for Agency Responses to Clean Water Act Citizen
Suit Activity dated June 15, 1988.
E. SECTION 404
1. "EPA Enforcement Policy for Noncompliance with Section 404 of
the FWPCA", dated June 1, 1976.
2. Letter from Attorney General to Secretary of the Army
regarding Section 404 of the CWA dated September 5, 1979.
3. "Enforcement of Section 404 of the CWA", dated November 25,
1980.
4. "Enforcement Authority for Violations of Section 404 of the
Clean Water Act", dated November 7, 1980.
-------
17
5. "Guidelines for Specification of Disposal Sites for Dredged
Fill Material", Federal Register Notice, Volume 45, No. 249,
dated December 24, 1980.
6. "CWA Section 404 Administrative Orders'for Removal or
Restoration",dated May 20, 1985.
7. Memorandum of Agreement Between the Department of the Army
and the Environmental Protection Agency Concerning Regulation of
Solid Waste Under the Clean Water Act, dated January 23, 1986,
effective date April 23, 1986.
8. "MEMORANDUM OF AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY
AND THE ENVIRONMENTAL PROTECTION AGENCY CONCERNING FEDERAL
ENFORCEMENT OF THE SECTION 404 PROGRAM OF THE CLEAN WATER ACT",
dated January 19, 1989, with collateral agreements concerning
previously-issued Corps Permits Geographic Jurisdiction and
Section 404 (f) exemption issues.
9. "Clean Water Act Section 404 Jurisdiction Over Isolated
Waters in Light of Tabb Lakes v. United States,." dated January
25,1990.
F. CONTRACTOR LISTING
1. "Guidance for Implementing EPA's Contractor Listing
Authority", dated July 18, 1984. See GM-31. (Superseded by F.4,
below)
2. "Implementation of Mandatory Contractor Listing", dated August
8, 1984. See GM-32.
3. "Policy on Implementing Contractor Listing Program", dated
August 27, 1985. (deleted - Draft Policy only)
4. "Guidance on Implementing the Discretionary Contractor Listing
Program", dated November 26, 1986. See GM-53.
G. FEDERAL FACILITIES
1. "Federal Facilities Compliance", dated January, 1984.
Superseded by VI.G.2.
2. "FEDERAL FACILITIES COMPLIANCE STRATEGY", dated November,
1988. See GM-25(revised).
H. OVERSIGHT AND STATE PROGRAM COORDINATION
1. "Implementing State/Federal Partnership in Enforcement:
State/Federal Enforcement Agreements", dated June 26, 1984.
Superseded by H.3, below.
-------
18
2. Policy on Performance-Based Assistance, dated May 31, 1985.
3. "Revised Policy Framework for State/EPA Enforcement
Agreements", dated August 25, 1986 (Supersedes H.I). See also
GM-41, revised.
I. PROVIDING ENFORCEMENT INFORMATION TO OUTSIDE PARTIES
1. "Policy Against No Action Assurances", dated November 16,
1984. See G.M.-34.
2. "Enforcement Document Release Guideline", dated September 16,
1985. See G.M.-43.
3. "Policy on Publicizing Enforcement Activities", dated November
21, 1985. Modified by 1.5, below.
4. "Memorandum to General Counsels" (Concerning FOI requests
pertaining to subjects involved in ongoing or anticipated
litigation), dated March 27, 1986.
5. "Addendum to GM-46: Policy on Publicizing Enforcement
Activities", dated August 4, 1987. (Contains discussion on
explaining differences between initial penalty demands and final
penalty)
J. TOXICS/TOXICITY CONTROL
1. "Policy for Development of Water Quality-Based Permit
Limitations for Toxic Pollutants", dated February, 1984. See
II.A.7.
2. "WHOLE EFFLUENT TOXICITY BASIC PERMITTING PRINCIPLES AND
ENFORCEMENT STRATEGY", Dated January 25, 1989. Includes
Compliance monitoring and Enforcement Strategy, dated January 19,
1989.
3."Quality Assurance Guidance for Compliance Monitoring in
Effluent Biological Toxicity Testing", dated March 7, 1990.
VII. ANNUAL DOCUMENTS AND SHORT-TERM INITIATIVES
1. "EPA AGENCY OPERATING GUIDANCE - FY 1986-1987", dated February
1985. EXPIRED.
2. "FY86 GUIDANCE FOR OVERSIGHT OF NPDES PROGRAMS", dated June
28,1985. EXPIRED.
3. "NATIONAL MUNICIPAL POLICY ENFORCEMENT INITIATIVE", dated August 9,
1985. Attachments excluded.
-------
19
4. "A GUIDE TO THE OFFICE OF WATER ACCOUNTABILITY SYSTEM AND MID-YE^
EVALUATIONS", dated September, 1985. EXPIRED.
5. "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. "A GUIDE TO THE OFFICE OF WATER ACCOUNTABILITY SYSTEM AND MID-YEAR
EVALUATIONS, FISCAL YEAR 1988", dated May, 1987. Selected portions
only. EXPIRED.
12. "FY 1988 OFFICE OF WATER OPERATING GUIDANCE", dated June, 1987.
Selected portions only. EXPIRED.
13. "FY 1989 OFFICE OF WATER OPERATING GUIDANCE", dated May, 1988.
Selected portions only.
14. "A GUIDE TO THE OFFICE OF WATER ACCOUNTABILITY SYSTEM AND MID-
YEAR EVALUATIONS, FISCAL YEAR 1989", dated March, 1988. Selected
portions only.
15. "Guidance for the FY 1989 State\EPA Enforcement Agreement
Process", dated June 20, 1988. See GM-57.
16. "FY 1990 OFFICE OF WATER OPERATING GUIDANCE", dated March, 1989.
Selected portions only.
17. "A GUIDE TO THE OFFICE OF WATER ACCOUNTABILITY SYSTEM AND MID-
YEAR EVALUATIONS,FISCAL YEAR 1990", dated March, 1989. Selected
portions only.
18. " Use of Administrative Penalty Order (APO's) in FY 89", dated
March 13, 1990. Without Attachments.
19. "CWA Civil Judicial and Administrative Penalty Practices Report
for FY89".
-------
20 .
20. "FY 1990 Guidance for Reporting and Evaluating POTW Noncompliance
with Pretreatment Implementation Requirements", dated September 27,
1989.
-------
-------
i. INTRODUCTION
This Clean Water Act Compliance/Enforcement Compendium is a
compilation of operative policies, guidance and staff manuals/
instructions which relate specifically to compliance and
enforcement activities under the Clean Water Act (CWA). This
Compendium is designed for use by Agency personnel and replaces
"Water Compliance/Enforcement Guidance Manual - Compendium of
Operative Policies (jointly issued by the Office of Water and the
Office of Enforcement and Compliance Monitoring on April 23,
1984). The Compendium reflects a thorough search of relevant
materials issued through December, 1985, but also lists key
documents issued as recently as March, 1986.
The Compendium is divided into seven principal categories
with several of the categories further divided. Section I incor-
porates the Table of Contents for several general reference
documents — including the "General Enforcement Policy Compendium"
which contains policies applicable to all enforcement programs
within the Agency and the "Permits Division Policy Book". Section
I also includes the Enforcement Management System Guide, which is
relevant to all aspects of the National Pollutant Discharge
Elimination System (NPDES) compliance monitoring and enforcement
program. Key documents from these other compendia are listed
separately in Sections II through VI. Section II includes docu-
ments which address NPDES compliance monitoring and, as mentioned
above, includes some documents indexed in the "Permits Division
Policy Book" which describe the establishment of permit limita-
tions and requirements. Sections III and IV identify procedures
for formal Federal administrative enforcement (III) and civil
enforcement (IV) in cases of non-compliance. Section V lists a
number of Agency policies relating to criminal enforcement;
Section VI lists policies and materials on specific topics (e.g.,
National Municipal Policy, Pretreatment, etc.) under NPDES and
non-NPDES compliance and enforcement; and Section VII covers
policy documents which are issued annually or support short-term
initiatives (e.g., Agency Operating Guidance).
Within each subdivision —: or where there is no subdivision,
within each section — materials are listed in chronological
order. Documents which are considered to be most significant
and most frequently used are CAPITALIZED.
The Table of Contents of this Compendium also serves as the
index of statement of policy and interpretation of CWA compliance
and enforcement activities of the Office of Enforcement and
Compliance Monitoring (OECM) and the Office of Water Enforcement
and Permits (OWEP) which may be made available for public use in
accordance with Section (a) (2) of the Freedom of Information Act,
5 U.S.C. §552. Certain staff manuals and instructions to staff are
included. In addition, as a means of providing a complete back-
ground, the Table of Contents cross references relevant documents,
-------
- 2 -
including explanatory materials prepared for the regulated public,
which aid the user .to understand EPA's Clean Water Act compliance
and enforcement processes.
The Compendium will be revised annually. Although every
effort has been made to include all applicable documents, some
may have been missed. If additional appropriate documents are
brought to the Agency's attention, they will be added to the
Policy Compendium when it is next revised. Of course, as new
policies, guidances, and memoranda are issued, these will be
added during the annual update.
-------
I. OVERVIEW AND GENERAL REFERENCE DOCUMENTS
-------
I.I
"Permits Division Policy Book", dated June 23, 1982. Table of Contents by
date and by subject only. Copies of individual documents may be obtained
from Permits Division, OWEP. (EN-336).
-------
-------
WASHINGTON, D.C. 20460
• ft ' ^ ' • ** ** **
2 3 W8i OFPIC6 OF
WATER
MEMORANDUM
.SUBJECT: Permits Division PolicyvBook Update
FROM: Martha G. Prothro, Director
Permits Division (SN-336)
'70: Regional Water Management Division Directors
Regional Permit Branch Chiefs
NPDES State Directors ' . .
In 1981 we'distributed a Permits Division Policy Book- -
which provided a compilation of current policies and guidance
material for your reference. We have reviewed and updated the
contents of the Policy Book. Several outdated NPDES iteas should
be deleted and nine more recent issuances should be included.
Also, we are no longer including RCRA materials in this
compilation.
Attachments 1 and 2 show additions and deletions by their
subject headings. We will maintain a. historical "file of the
'deleted policy guidance materials. For your convenience I am
also providing copies of the nine additions and new chronological
and subject indices.
We will .'continue to provide periodic ,updates *to--the -Permits
Division Policy Book. Your comments and suggestions :.for .improving
the usefulness of this book are welcome.
Attachments
-------
-------
Additions
Ac-:.Tistr2tive Guidance
•
A.. Forms
Application Forms T and 2 c
12/10/80
n-80-18
IV. Legal Interpretation and Information Memos
NPDES Permit Issuance for Iron and
Steel Industry
Use of "Draft Supplement to Develop-
ment Document for Effluent'Limitations
Guidelines and New Source Performance
Standards for the Phosphorous Derived
Chemicals Segment of the Phosphate
Manufacturing Point Source Category"
(October 1977) in Writing NPDES Permits
SCT Permitting
NPDES Permit Issuance for Pulp and Paper
Facilities with BCT Limitations to
Other Facilities
Status of the Major NPDES Industrial
Permits List
5/15/81
n-81-3
1/18/82
11/2/81 *
5/15/81
12/10/31
n-82-1
• n-81-4
n-81-5
n-81-5
V. Second Round Permits:
Policy for the Second Round Issuance
of NPDES Industrial Permits
VI. Technical Guidance:
Outer Continental Shelf Coordination
Committee
Application of the flPDES General
Permit Program to Offshore Oil
and Gas Facilities
6/02/82
6/6/80
7/30/81
n-82-2
n-80-19
n-81-7
-------
37-
-------
Deletions
Title
•
Seculation Procedures
A. ECSLs:-
Procedures for Issuance of
ECSLs
Enforcement Actions Against
Funded Municipal Dischargers
Enforcement Actions where an
Industrial Discharger Fails to
Meet 7/1/77 Deadline
Questions re: ECSLs
Additional Questions re: ~ECSLs
Use of ECSLs Past 7/1/77
Enforcement Policy and Use of
ECSLs for POTWs
Date
Permit Prcgrr
Code
6/03/75
6/03/76
6/03/76
12/10/76
4/01/77
5/11/77
6/22/77
n-76-2
n-76-3
n-76-4
n-76-13
n-77-3
n-77-9
n-77-11
Clean Water Act Extensions and
Modifications:
Municipal Perr.it Extensions .under
Section 201 (i)
4/13/78
n-78-3
Federal/State Relationships
Resource Conservation and Recovery Act:
Establishment of RCRA "Program
Implementation Guidance System
(PIGs)"
Interim Authorization of Programs
Based on Emergency State
Regulations
Requirement that State-Permitted
Hazardous Waste Facilities have
"Interim Status"
Short-Term Financial Assistance for
State Expected to Receive
Authorization before 1/1/81
The Use of State Permitting Systems
• During Phase I Interim Authorization
which are not Based on Explicit
Regulatory Standards
'10/03/80
10/03/80
• •
•
10/03/80
10/03/80
10/17/80
PIG-80-1
PIG-8C-2
PIG-80-3
PIG-3C-4
PI3-51-1
-------
Title
Date
Permit Prccr
Code
Federal Register Notice of Public
Hearing ans Comment Period on
State Applications for Interim
Authorization
Effect of RCRA Regulations Changes
on Phase I Interim Authorization
Approval
Del is* ing of Wastes by Authorized
States
Used Oil Recycling Act of 1980
State Regulation of Federal Agencies
For purposes of Interim
Authorization
Final Determinations on State
Applications for Interim
Authorization: Action Memoran-
dum & Federal Register Notice
Program Implementation Guidance
on Issuance of Provisional
EPA Identification Numbers
Effect of EPA's Memorandum of
Understanding With the Dept.
of Transportation on Activities
in States with Cooperative
Arrangements
Transfer -of Modification and Permit
Application Information to States
Involvement of States without. Phase
II Interim Authorization in RCRA
Permitting
10/30/30
10/30/80
10/31/80
11/14/80
11/14/80
12/1/80
11/25/30
12/10/30
3/24/81
2/12/31
PIG-SI-:
PIG-81-3
PIG-81--
PIG-31-:
PIG-81-6
PIG-il-7
PIG-81-6
PIG-81-1
PIG-81-1
V. Second Round Permits:
Reissuing NPOES Permits to Sources
Affected by the NRDC Consent Deere*
Policies for Reissuing Industrial
NPDES Permits
Writing NPDES SAT Permits in the
Absence of Promulgated Effluent
Guidelines
Revised NPDES Second Round Permits
Policy
5/16/78
7/12/78
6/25/80.
8/29/80
n-,3-3
n-73-9*
n-80-7
n-80-10
RCP.A Permit Priorities Guidance
RCRA Emergency Permit Guidance
10/03/80
10/20/80
r-80-1
-------
Establishment of RCRA "Program
Implementation Guidance System
(PIGs)" ' 10/03/80
Interim Authorization of Programs
• Based on Emergency State
Regulations 10/03/80
Requirement that State Permitted
Hazardous Waste Facilities have
"Interim Status" . 10/03/80
Short-Term Financial Assistance for
States Expected to Receive
Authorization Before 1/1/81 10/03/80
The Use of State Permitting Systems
During Phase I Interim Authorization
Which are not Based on Explicit.
Permit Guidance 10/17/80
RCRA Emergency Permit Guidance 10/20/80
Federal Register Notice of Public
Hearing ana Comment Period on
State Applications for Interim
Authorization ' 10/23/80
Effect of RCRA Regulations Changes
on Phase I'Interim Authorization
Approval ' 10/30/80
Deli sting" of Wastes by Authorized
States 10/31/80
r-80-1
PIG-80-2
PIG-80-3
PIG-80-4
PIG-81-1
r-80-2*
PIG-SI-2
PIG-81-3
PIG-81-4
-------
Fermi's Oi vision .-Oiicy SC-K
This book contains policies and guidance under the NPQES
Permit Program. The materials are arranged and numbered in
* .
chronological sequence. NPDES policies are prefixed by an "n".
Following the prefix, the first number is the year of issuance
and the second is the chronological sequence for that year.
In addition to the chronologcial'listing a subject index is
provided to assist in locating policies. •
Documents which are too lengthy to be included are Indicated
by an asterisk. Copies of these documents may be obtained by
cant act ing:
. *
Mr. Timothy Dwyer
Permits Division (EN-336)
U.S. EPA
40l".M"'stre«t, S.W.
Washington, D.C. 20450
(203) 425-4793
Please use tne policy number when requesting a document..
-------
•Itle
Date
Program
Coda
1973
Policy on Storage'& Releases-for Water "Quality
Control in Reservoirs Planned by Federal
Agenci es
Permit Form
Intermittent Streams
Alternative in Permit Language
1974
Additional Guidance for Petroleum Marketing
Terminals 4 Oil Production Facilities
Feadlot Permit Format
Application of Electroplating Guidelines
Disposal of Supply Water Treatment Sludges
1975
Use of Closed Cycle Cooling Systems to Meet the
Requirements of Section 315(b)
1976
NPDES Permit Authorization to Discharce •
(Deleted)
(Deleted)
(Deleted) *
Coordination Between NPDES Program and' Water
Quality Management
Attachment - Coordination
Municipal Wastewater Treatment Ponds
American Petroleum Institute v. EPA -
information Memo
Binding Effect of 303(e) Basin Plans
Impact of Phase I Basin Plans
Phase II Iron and Steel Guidelines • Mahoning
River Valley
Asbestos Limits
Use of Low Flow Augmentation to Meet Water
Quality Standards
(Deleted)
Comments on Region VIII's Approach to Writing
Effluent Limits for Confined Animal Feeding
Operations •
1977 •
Clarification of CSC Opinion No. 40 (State
Review Authority)
Fecal Cclifcrm Bacteria Limits
(Deleted) • . '
water Treatment Plant Limitations
1/16/73
9/18/73
9/28/73
12/27/73
7/18/74
7/29/74
:8/28/74
9/13/74
2/26/75
4/2S/76
7/07/76
and
4/02/76
8/12/76
8/24/76
8/24/76
9/01/76
10/04/76
10/15/76
11/08/76
12/15/76
2/04/77
2/14/77
4/13/77
n-73-1
n-73-2
n-73-3
n-73-4
n-74-1
•n-74-2
-n-74-3
n-74-4
n-75-1
n-75-1
n-75-2
n-75-3
n-76-4
n-75-5
n-75-5
n-75-6
n-76-7
ri-76-8
n-76-9
-n-75-10
n-75-11
n-76-12
n-76-13.
n-76-14
n-77-1
n-77-2
n-77-3
n-77-4
-------
Title Date
Request TOP Policy Regarding Pcssib'2 Use
of NPOES Permits to Promote Setter Sludge
Management 4/12/77
315(a) & (b) Technical Guidance Oocjms.nts 5/01/77
Use of In-Stream Mechanical Aerators to Meet
Water Quality Standards 5/02/77
NPOES Permits and Requirements of State- Law 5/04/77
(Deleted)
Implementation of Promulgated Section 307(a)
Toxic Standards 6/01/77
(Deleted)
NPDES Permits in Wetlands Areas 7/12/77
Implementation of Section 403 7/20/77
Policy Regarding Procedures for Fundamentally
Different Factors SPT Variances 8/13/77
Policy Regarding the Inclusion in Permits of
More Stringent Effluent Parameters 10/13/77
1973
State Regulation of Federal Facilities - 3/10/78
Confidentiality of NPDES Permit Applications 4/05/78
(Deleted)
Certification and Permitting of Dischargers
in Boundary Waters 4/19/78
(Deleted)
Coal Mining Under the Surface Mining Control
and Reclamation Act of 1977. 5/25/78.
Opinions on Variances in Second Round-and
Other Issues 6/13/78
Ex Parte Contacts in Adjudicatory Hearings 6/15/78
(Deleted) •
Ex Parte Contacts in EPA Rulasking . 8/04/77
Suspenoed Solids Limits for POTW Ponds 9/C1/7S
Innovative Technology Extensions 9/06/73
Guidance to States re Pretreatment Program 9/08/78
Variance Applications 3/12/78
Applicability of 301(h) & (i) to Federal
Facilities 9/12/78
Transfer of Authority over-Federal -icilities
to NPOES States 11/23/78
Coordination between Regional Enforcement and
Water Programs re Pretreatment Program 11/29/7S
Request for Legal Opinion - Inclusion of
Compliance Schedules in Second Round and
Hew Permits 12/26/78
19/5
-.Permit
Program
Ccce
n-77-5
n-77-c-
n-77-7
n^77-8
n-77-9
n-77-10
n-77-11
n-77-12
n-77-13
n-77-14
n-77-15
n-73-1
n-78-2
n-78-3
' n-78-41
n-7S-5
ff-73-6
n-7S-7
n-73-3
n-75-9*
n-78-lC
n-78-11
n-73-12
n-78-13*
n-78-14
n-78-15
n-7i-16
n-78-17
n-73-13 .
Use of 3iornon.itoring in the NPOES
Permits Program 1/11/79
State Pretreat.-ent Programs 4/12/79
n-79-1
n-79-2
-------
Title
Date
Code
. EPA Procedures for Review & Approval•cf State
Pretreatment Program Submissions 4/30/79
.- Separate Storm Sewers 9/11/79
. national Municipal Pol icy & Strategy 10/79
. Guidance en Setting BCT Penr.it Limits for
Breweries under Section 402(a)(l) of CWA 10/18/79
1930
. Regional Review of State-Issued NPDES Permits 1/18/80
. Applicability of Revised NPDES Regulations
to Permits Currently Being Processed 1/18/80
. Incorporation of Pretreatment Program
Development Compliance Schedules into
POTrf NPDES Permits 1/28/80
. OGC Memo-Use of BODS Carbonaceous Test Results 4/18/30
. Pretreatment Compliance Schedule
. Statement 3y Agency Personnel Purporting To '
Sanction Source Actions Which Are Inconsistent
With Statutory Requirements 5/28/80
. (Deleted)
. Major Municipal Permitting in FY 81 " . 7/10/80
. Suspension cf Portion of Definition 7/15/80
of "Waters of the US" in Consolidated
Permit Regulations • .
. (Deleted) .
. NPDES Permit Issuance for Iron & Steel 9/15/80
Facilities
. Suspension of Provisions in Consolidated . .9/25/80
Permit Regulations Establishing Criteria
for NPDES New Source Determinations and
Proposed Revision of the Regulations
. Treatability Manual 9/25/80
. BCT Cost Test Guidance 9/30/80
. NPDES Evidentiary Hearing Management Procram 10/3/SO
. Review of State NPDES Permits Written" Prior 12/24/80
to State Program Revision
. Procedures for Processing Plans of Approved 12/31/80
NPDES States to Implement NPDES General
Permit Programs
. Application Forms 1 and 2c ,12/10/80
. Outer Continental Shelf Coordination 6/05/80
Committee
1981
(number not used)
. Determining Whether Revisions to State NPDES
Programs tface to Authorize the Issuance
of General Permits are Substantial • 2/12/81
. NPDES Permit Issuance for Iron and Steel
Industry • . 5/15/81
n-79-3
n-79-4
n-79-5
n-80-1
n-80-2
n-80-3
n-80-4
n-80-5
n-80-6
n-80-7
n-80-8
n-80-9
n-80-10
n-80-11
n-80-12
n-80-1
n-80-1
n-80-1
n-30-!5
n-80-17
•n-80-18
n-80-19
n-Sl-1
n-51-2
n-31-3
-------
. . . Permit
?rearam
Title . Date Coda
3CT Permitting 11/2/81 n-31-4
NPDES Permit Issuance for Pulp and Paper
Facilities with 3CT Limitations to
Other Facilities 5/15/81 n-81-5
Status of the Major NPDES Industrial
Permits List ' 12/10/31 n-81-6
Application of the NPDES General
Permit Program to Offshore Oil
and Gas Facilities 7/30/81 n-81-7
1932
Use of "Draft Supplement to Develop-
ment Document for Effluent Limitations'
Guidelines and New Source Performance
Standards for the Phosphorous Derived
Chemicals Segment of the Phosphate
Manufacturing Point Source Category"
(October 1977) in Writing NPOES Permits 1/13/82 n-82-1
Policy for the Second Round Issuance ' ' ' M
of NPDES Industrial Permits 6/02/32 n-32-i
-------
LIST OF CURRENT POLICIES BY SUBJECT
"Title
Administrative Guidance
A. Forms:
Permit Form
Alternative in Permit..Language
Feedlot Permit Fonnat
Application Forms-1 and.Zc
9/18/73
,12/27/73
^7/29/74
.12/10/80
Perait
Program
..Code
n-73-2
n-73-4
n-74-2
n-.80-18
B. Procedures:
Applicability of Revised NPDES Regs.
to Permits Currently Being.Processed
1/18/80
n-80-2
II. Regulatory Procedures
B. Industrial:
C. Municipal:
D. Tie-in:
F. Consolidated:
Suspension of Portion of Definition
of "Waters of the US" in Consolidated
Permit Regulations
Suspension of Provisions in
Consolidated Permit Regulations
Establishing Criteria for NPDES
New Source Determinations &-Proposed
Revision of the Regulations
III. Federal/State Relationships
A. NPDES States:
Clarification of OGC Opinion
No. 40 (State Review Authority)
'State Regulation of Federal Facilities
7/15/80
9/25/80
2/04/77
3/10/78
n-80-9.
-n-80-12
n-77-1
n-78-1
-------
Title . Date
Transfer of Authority over Federal
Facilities to NPOES States 11/23/78
Review of State NPOES Permits Written
Prior to State Program Revision 12/24/30
Procedures for Processing Plans of
Approved NPDES States To Implement .
NPDES General Permit Programs . 12/31/30
Determining Whether Revisions to State
NPDES Programs Made to Authorize the
Issuance of General Permits are'
Substantial 2/12/81
3. Non-NPDES States:
C. Water Quality Management Plans:
Coordination Between NPDES Program 7/07/76
and Wa-ter Quality Management • and
Attachment - Coordination 4/02/76
Binding Effect of 303(e) Basin Plans 8/24/76
Impact of Phase I Basin Plans 9/01/75
NPOES Permit and Requirements of '
State Law 5/04/77
£. Safe Drinking Water Act:
IV. Legal Interpretations and Information Memos:
Intermittent Streams 9/23/73
Disposal of Supply Water Treatment Sludges 9/13/74
NPDES Permit Authorization to Discharge 4/2S/75
American Petroleum Institute v. EPA -
Information Memo8/24/75
Phase II Iron & Steel Guidelines -
Mahoning River Valley 10/4/76
Request for Policy re Possible Use of
NPDES Permits to Promote Better Sludge
Management 4/13/77
NPOES Permit in Wetlands Areas 7/12/77
Implementation of Section 403 7/20/77
Policy Regarding the Inclusion in Permits
of More Stringent Effluent Parameters ID/13/77-
Confidentiality of NPDES Permit
Applications 4/06/73
Coal Mining Under the Surface Mining
Control and Reclamation Act of 1977 • 5/25/73
Certification and Permitting of Dischargers
in Boundary Waters 4/19/73
Opinions on Variances in Second Round
and Other Issues 6/13/73
Permit
Program
Code-
n-78-15
n-30-15
n-80-17
n-81-2
n-76-5
n-76-5
n-75-8
.1*75-3
n-77-8
n-73-3
n-74-3
n-76-1
n-75-7
n-75-10
n-77-5
n-77-12
n-77-13
n-77-15
n-73-2
n-78-5
n-7S-4
n-73-7
-------
V.
VI
Program
Title Date Code
£x Parte Contacts in Adjudicatory Hearings 6/16/78 ' n-78-8
Ex Parte Contacts in EPA Rulemaking 8/04/77 n-73-10
innovative Technology Extensions -9/06/73 n-78-12
Applicability of 301(h) and (i) to Federal
Facilities 9/12/78 n-78-15
Request for Legal Opinion - Inclusion of
Compliance Schedules in Second Round
and New Permits 12/26/78 n-78-18
Separate Storm Sewers '9/11/79 n-79-4
Regional Review of State-Issued NPDES
Penults 1/18/80 n-80-1
OGC Memo-Use of Carbonaceous Test Results 4/18/80 n-80-4
Statement By Agency Personnel Purporting
to SanctionaV Actions Which are In- . • "
consistent w/ Statutory Requirements ..5/28/80 n-80-6
NPDES Permit Issuance for Iron & Steel
Facilities 9/15/80 n-80-11
BCT.Cost Test Guidance . ' 9/30/80 n-80-14*
NPDES Evidentiary Hearing Management
Programs • 10/03/80 n-80-15
NPDES Permit Issuance for Iron and
Steel Industry ' . 5/15/81 n-81-3
BCT Permitting • 11/02/81 n-81-4
NPDES Permit Issuance for Pulp and Paper
Facilities with BCT Limitations to
Other Facilities . . .5/15/81 n-81-5
Status of the Major NPDES Industrial . • .
Permits List 12/10/81 n-81-6
Use of "Draft Supplement to Development
Document for Effluent Limitations
';,. Guidelines and New Source Performance
Standards for the Phosphorous Derived-
" Chemicals Segment of the Phosphate
'.. Manufacturing Point Source Cateaory"
- (October 1977) in writing NPDES Permits 1/18/32 n-82-1
Second Round Permits:
Policy for the Second Round Issuance
of NPDES Industrial Permits ;6/02/52 n-82-2
Technical Guidance:
Policy on St-orage & Release for Water
duality Control in Reservoirs Planned
by Federal Agencies 1/16/73 n-73-1
Additional Guidance for Petroleum Marketing
Terminals i Oil Production Facilities 7/18/74 n-74--l
Application of Electroplating Guidelines 8/28/74 n-74-3
Use of Closed Cycle Cooling Systems to
Meet the Requirements of Section 316(b) . 2/26/75 n-75-1
Municipal Wastewater Treatment Ponds 8/12/76 n-75-5
Asbestos Limits . . 10/15/76 n-75-11
-------
w
A •
Title . Date
ITse of Low Flew Augmentation to Meet
•Water Quality Standards 11/08/76
Comments on Region VIII's Approach to
Writing Effluent Limits for Confined
Animal Feeding Operations 12/15/76
Fecal Coliform Bacteria Limits • 2/14/77-
Water Treatment Plant Limitations . • 4/13/77
Use of In-Stream Mechanical Aerators
to Meet Water Quality Standards 5/02/77
.Implementation of Promulgated Section
307(a) Toxic Standards 6/01/77
Suspended Solids Effluent Limitations for
Publicly Owned Wastewater Treatment Ponds 9/01/78
Guidance on Setting BCT Permit Limits for
Breweries under Section 402(a)(l) of
the CWA • 10/18/79
Treatability Manual ' 9/25/80
Qurer Continental Shelf Coordination
Committee . ' 6/06/30
Application of the NPOES General Permit
Program to Offshore Oil and Gas Facilities 7/30/81
•
Variances:
Policy re Procedures for Fundamentally
01fferent'Factors 3PT Variances 8/18/77
Variance Applications - 9/12/78
315(2) & (b) Technical Guidance Documents 5/01/77
-Coordinated Municipal Strategy
National Municipal Policy 4 Strategy 10/79
Cocrc-i.-.ation between Regions' Enforcement
and Water Proarams re Pretreatment
Program 11/29/78
Major Municipal Permitting in FY 81 7/1C'30
Pretreatment:
Guidance to States re Pretreatment . 9/8/78
Program (see aJso Feb. 1979 publication-
Guidance for NPDES States on
Implementaion of the General
- Pretreatment Regulations •
'40 CFR Part 403)
State Pretreatment Programs 4/12/79
EPA Procedures for Review and
Approval of State Pretreatment
Program Submissions 4/2G/79
Permit
Program
Code
n-76-12
n-76-14
n-77-2
n-77-4
n-77-7
n-77-10
n-78-11
n-79-6
n-80-13*
n-80-19
n-81-7
n-77-14
n-73-14.
n-77-6*
n-79-5*
n-78-17
n-80-8
n-78-13*
n-79-2
-------
.... Permit
• " Program
Title Date ' . Code
Incorporation "of Pretreatment'Progrjrn
Development Compliance Schedules into
• :":~PO?^ NPDES Permi-.s -- " 1/23/80 'n-80-3
Pretreaimer.t Compliance Schedule • n-30-5
. » . . — »* . . . ^ • . . - .
X. -..;*Biomonitoring: .,,..•: _ : •_
OGC Memo "Use of Biomonitoring in ,the
NPDES.Permit Program" ,... ' : -.1/11/79 . • n-79-1
-------
-------
1.2
"Working Principles Underlying EPA's National Compliance/Enforcement
Programs", dated November 22, 1983. See GM 24.
-------
-------
1.3.
"CLEAN WATER ACT COMPLIANCE/ENFORCEMENT GUIDANCE MANUAL", dated May 1985.
Table of Contents and Chapter Contents pages only. Copies of the manual or
portions may be obtained from Program Development and Training Branch,
Office of Enforcement Policy OE (LE-133).
-------
-------
&EPA The Clean Water Act
Compliance/Enforcement
Guidance Manual
U.S. Environmental Protection Agency
Washington, DC 20460
Prepared by
The Office of Enforcement and Compliance Monitoring
-------
52.
-------
Table of Contents
Chapter One Overview
1 Purpose of the Manual 1-1
2 Introduction 1-3
3 A Short Legislative History 1-7
4. Overview of the Clean Water Act 1-11
5 Exhibits 1-29
Chapter Two General Operating Procedures
1 Introduction 7rl
2 Primary Office Responsibilities 2-3
3 Organizational Charts 2-9
4 Exhibits 2-15
Chapter Three Compliance Monitoring Procedures
1 Introduction 3-1
2 Self-Monitoring and Other Information Gathering 3-3
3 Inspections . 3-7
4 Reviewing Facility Recordkeeping and Reporting 3-19
5 Warrants • 3-21
6 Exhibits 3-25
CVA Compliance/Enforcement i Guidance Manual 1985
-------
Chapter Four Documentation of Evidence
I Introduction
2 Self-Monitoring Reports
3 Compliance File Review
4 Review of Sources of Evidence
5 Exhibits
4-1
4-3
4-5
4-9
4-15
Chapter Five Responding to Noncompliance
1 Introduction
2 Level of Action Policy
3 Exhibits
5-1
5-3
5-7
Chapter Six Administrative Enforcement
1 Introduction
2 Administrative Enforcement
3 Exhibits
6-1
6-3
6-15
Chapter Seven Administrative Enforcement Actions; Civil
Penalty Provisions
7-1
Chapter Eight Judicial Enforcement; Civil Actions
1 Introduction
2 Elements of a Violation: Civil
3 Procedures for Filing Actions
4 Consent Decrees
5 Exhibits
8-1
8-5
8-9
8^21
8-25
CHA Compliance/Enforcement
ii
Guidance
1985
-------
Chapter Nine Criminal Enforcement
1 Criminal Enforcement 9-1
2 Exhibits 9-15
Chapter Ten Enforcement of Consent Decrees
1 Introduction 10-1
2 Consent Decree Tracking and Monitoring 10-3
3 Consent Decree Enforcement .10-5
4 Exhibits . • 10-17
Chapter Eleven Special Topics in the NPDES Program
1 Introduction " 11-1
2 Standard Permit Conditions 11-3
3 Permit as a Shield 11-13
4 Issuance of Best Professional Judgment Permits 11-15
5 Special NPDES Evidentiary Hearing Procedures 11-19
6 The Freedom of Information Act 11-25
7 Protection of Confidential Business Information 11-29
CWA Covpliance/Eoforccnent ill . Guidance Manual 1985 £-~
' 'J
-------
CMA f>i»pHaTio«»/Knf.?T-«'1MM««- jy q«-l djMi«.o MatniaT"
-------
Chapter One
Overview
Chapter Contents
Page
1 Purpose of the Manual
Reservation
1-1
1-1
2 Introduction
Purpose and Scope of the Clean Water Act
Compliance and Enforcement
Program Regulations
1-3
1-3
1-5
1-6
3 A Short Legislative History
Pre-1972 Law
The 1972 Amendments
The NRDC Consent Decree and the 1977 Amendments
Recent Regulatory Developments
1-7
1-7
1-8
1-8
1-10
4 Overview of the Clean Water Act
NPDES Permits and Effluent Standards
The Pretreatment Program
Recordkeeping, Monitoring, and Entry and'Inspection
Provisions
Oil and Hazardous Substances Spills
Dredged and Fill Material Permit Program
Enforcement Provisions
1-11
1-17
1-20
1-21
1-23
1-25
5 Exhibits
1-1: National Effluent Guidelines
1-2: Approved State NPDES Programs
1-3: Key Sections of NPDES Regulations
1-4: General NPDES Permits by Category
1-29
1-31
1-36
1-37
1-39
CWA Coapliance/Enf orceaenc
Guidance Manual 1985
-------
Chapter One . • Concents
CWA Compliance/Enforcement T-Li Goidance Manual 1985
-------
Chapter Two
General Operating Procedures
Chapter Contents Page
1 Introduction 2-1
2 Primary Office Responsibilities 2-3
Regional Administrator 2-3
Headquarters 2-4
Department of Justice and Referral Procedures 2-6
3 Organizational Charts 2-9
4 Exhibits . 2-15
2-1: Case Referrals for Civil Litigation 2-17
2-2: Implementation of Direct Referrals for
Civil Cases Beginning December 1, 1983 '2-22
CHA Compliaace/Enforceaent 2-i Guidance Manual 1985 /.,,,—
-:''xx
-------
Chapter Two Contents
CWA Coopllance/Enforcement 2-ii Guidance Manual 1985
-------
Chapter Three
Compliance Monitoring Procedures
Chapter Concents Page
1 Introduction 3-1
2 Self-Monitoring and Other Information Gathering 3-3
3 Inspections 3-7
Neutral Inspection Scheme 3-8
Types of Inspections 3-8
Notification of a Pending Inspection 3-9
Chronology of Inspection Procedures 3-10
Professional Conduct During the Inspection 3-12
Entry 3-12
Contractor Inspections 3-13
Opening Conference 3-14
Conducting the Inspection 3-14
Confidential Business Information 3-16
Exit Interview 3-17
Documentation and Inspection Report 3-17
4 Reviewing Facility Recordkeeping and Reporting 3-19
NPDES Requirements Review 3-19
POTW and Industrial Contributor Pretreatment
Requirements Review 3-20
5 Warrants 3-21
Policy ' 3-21
Securing and Serving an Adrainistrative Warrant 3-22
CWA Compliance/Enforcement 3-i Guidance Manual 1985
-------
Chapter Three Contents
6 Exhibits 3-25
3-1: Discharge Monitoring Report 3-27 .
3-2: Model Pre-Inspection Notification Letter 3-29
3-3: NPDES Compliance Inspection Report 3-30
3-4: Deficiency Notice 3-32
3-5: Records, Reports, and Schedules Checklist 3-33
3-6: Model Application for Administrative Warrant 3-36
3-7: Model Affidavit in Support of Application
for an Administrative Warrant 3-37
3-8: Model Administrative Warrant 3-39
' 7 CWA Compliance/Enforcement 3-ii Guidance Manual
-------
Chapter Four
Documentation of Evidence
Chanter Cor.renrs Page
2 Self-Monitoring Reports 4-3
3 Compliance File Review 4-5
Organizing Compliance Data * / 4-5
Controlled Identification of Samples 4-6
4 Review of Sources of Evidence 4-9
Compliance File Documentation 4-9
Further Processing of the' Compliance File—
Enforcement Case Review 4-13
5 Exhibits 4-15
Exhibit 4-1: Custody Seal 4-17
Exhibit 4-2: Chain of Custody Record 4-18
CWA Compliance/Enforcement 4-i Guidance Manual 1985
• • • . - - •,.-.<
-------
Chapter Four
, CWA Compliance/Enforcement 4-ii Guidance Manual 1985
//f -
-------
Chapter Five
Responding to Noncompliance
Chsnc-r Contents
Psse
I~trocuctirn
2 Level of Action Policy
Enforcement Response Guide
Informal Responses
5-3
5-3'
5-4
3 Exhibits
Exhibit 5-1:
Exhibit 5-2:
Exhibit 5-3:
Exhibit 5-4:
Exhibit 5-5:
Exhibit 5-6:
Enforcement Response Table
Model Record of Communication
Model General Informal Warning Letter
Model Letter: Overdue Discharge Monitoring
Report (DMR)
Model Letter: Deficiencies in Completing the DMR
Model Letter: Violation of Effluent Limitations
and Failure To File Reports
5-7
5-9
5-13
5-14
5-15
5-16
'5-17
CWA Compliance/Enforcement
5-i
Guidance Manual 1985
-------
Chapter Five Concencs
CWA Compliance/Enforcement 5-ii Guidance Manual 1985
-------
Chapter Six
Administrative Enforcement
Chapter Contents Page
1 Introduction 6-1
2 Administrative Enforcement 6-3
Section 308 Letters 6-3
Notices of Violation 6-5
Administrative Orders 6-7
Contractor Listing 6-11
NPDES Permit Actions 6-12
3 Exhibits 6-15
6-1: Model Section 308 Letter—
Request for Municipal Compliance Plan 6-17
6-2: Model Section 308 Letter—
Request for Composite Correction Plan 6-24
6-3: Sample Section 308 Letter—
Industrial Discharger 6-32
6-4: Model Notice of Violation 6-40
6-5: Recommended Format for Clean Water Act
Section 309 Administrative Orders 6-43
6-6: Model Municipal Administrative Orders 6-68
6-7: Model Notice of Deficiency 6-84
CUA Compliance/Enforcement 6-1 Guidance Manual
"'
-------
Chapter Six
CWA. Compliance/Enforcement6^iiGuidance Manual 1985
-------
Chapter Seven
Administrative Enforcement Actions:
Civil Penalty Provisions
Chapter Concents Page
CHA CoBpliance/Enforceoent 7-1 Guidance Manual 1985
l^i /
(O /
-------
Chapter Seven
CWA Compliance/Enforcement7-ii Guidance Manual 1985
-------
Chapter .Eight
Judicial Enforcement: Civil Actions
Chapter Contents Page
1 Introduction 8-1
Statutory Authority 8-1
2 Elements of. a Violation; Civil 8-5
Evidence in Support of Civil Actions 8-5
»
3 Procedures for Filing Actions 8-9
Preparation of the Referral Package 8-9
Interrelationship of Referral Process,.Litigation, and
Negotiations - 8-13
Filing the Complaint 8-14
Injunctive Relief 8-15
Discovery 8—18
Issues That Are Not Reviewable at Trial 8-18
Motion for Summary Judgment 8-19
4 Consent Decrees 8-21
Contents of the Consent Decree 8-21
5 Citizen Suits [Reserved] 8-25
CWA Compliance/Enforcement 8-i Guidance Hasoal 1985
-------
Loapcef £.j.&ac
6 Exhibits 8-27
8-1: Model Civil Litigation Report Outline and Guide 8-29
8-2: Sample Complaint for Industrial Discharger 8-38
8-3: Sample Complaint for Municipal Discharger 8-50
'8-4: Sample Pretreatment Complaint 8-58
8-5: Sample Motion for Preliminary Injunction 8-67
8-6: Sample Request for Admissions 8-69
8-7: Sample Notice of Deposition Upon Oral Examination 8-73
8-8: Sample Interrogatories 8-76
8-9: Sample Request for Production of Documents 8-95
8-10: Sample Motion for Summary Judgment 8-107
8-11: Sample Industrial Consent Decree 8-135
8-12: Sample Municipal Consent Decree . 8-153
8-13: Sample Pretreatment Consent Decree 8-161
CWA Compliance/Enforcement 8-ii Guidance Manual 1985
-------
Chapter Nine
Criminal Enforcement
Chapter Contents Page
1 Criminal Enforcement 9-1
Statutory Authority 9-1
Basic Enforcement Policy 9-2
Criteria for Identification of a Potential
Criminal Action 9-2
Criminal Enforcement Priorities . 9-5
Procedures for the Investigation and Referral
of a Criminal Case 9-9
2 Exhibits 9-15
9-1: Criminal Enforcement Provisions of the
Clean Water Act 9-17
9-2: Sample Criminal Information • 9-19
9-3: Sample Criminal Information 9-25
9-4: Functions and General Operating Procedures
for"the Criminal Enforcement Program 9-31
9-5: Office of Criminal Investigations:
Management and Field Offices 9-47
9-6: Format for Criminal Case Referrals 9-51
CHA Compliance/Enforcement 9-i Guidance MT«""»I 1985 •—7.
-------
CBA Compliance/Enforcement 9-ii Goidance Manual 1985
-------
Chapter Ten
Enforcement of Consent Decrees
Chapter Contents
Page
1 Introduction
10-1
2 Consent. Decree Tracking and Monitoring
10-3
3 Consent Decree Enforcement
Factors To Weigh
Types of Enforcement Responses
10-5
10-5
10-9
4 Exhibits
10-1: Consent Decree Tracking Guidance
10-2: NEIC Consent Decree Tracking Guidance
10-3: Demand Letter for Stipulated Penalties (Reserved)
10-4: Motion To Enforce Decree
10-17
10-19
10-26
10-44
10-46
CRa> Compliance/Enf orceaent
10-i
fff Manual 1985
-------
CWA Compliance/Enforcement
10-ii
Guidance Manual 1985
*
-------
Chapter .Eleven
Special Topics in the NPDES Program
Chapter Contents Page
1 Introduction 11-1
2 Standard Permit Conditions 11-3
Duty To Comply 11-3
Proper Operation and Maintenance 11-4
Duty To Mitigate 11-4
Duty To Halt or Reduce Activity 11-4
Duty To Provide Information * 11-4
Inspection and Entry 11-5
Monitoring and Recordkeeping 11-5
Reporting and Signatory Requirements 11-6
Notice of Planned Physical .Alterations or Additions 11-9
Bypass of Treatment Facilities "11-10
Upset Conditions 11-10
Duty To Reapply 11-11
3 Permit as a Shield 11-13
The General Rule • 11-13
Exceptions to the -General 'Jlule 11-14
4 Issuance of Best Professional Judgment Permits 11-15
Setting BPJ Permit Limitations 11-15
Issuing the BPJ Permit 11-17
CHA Coopllance/Enf orcenent 11-i Guidance Manual 1985
-------
Chapter Eleven • Contents
5 Special NPDES Evidentiary Hearing Procedures 11-19
Request for a Hearing 11-19
Filing Documents 11-19
Ex Parte Communications • 11-20
Prehearing Conferences 11-20
Motions 11-21
Summary Determinations 11-21
Hearing Procedures 11-22
Interlocutory Appeals 11-23
6 The Freedom of Information Act 11-25
Denials of FOIA Requests • 11-26
Exemptions 11-27
7 Protection of Confidential Business Information 11-29
. %
~» „ , ,rtng
r% CWA Compliance/Enforcement 11-ii Goidance Manual 1985
-------
1.4.
"ENFORCEMENT MANAGEMENT SYSTEM GUIDE", dated February 27, 1986, (updates
interim document dated September 27, 1985). Table of Contents and Chapters
1 and 2 only.
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
FEE 2 7 1986
MEMORANDUM
SUBJECT: Enforcement management * System Guide
FROM: Lawrence J. Jensen,'Assistant Administrator
for Water (WH-556)
TO: Regional Water^Management£Division'Directory
Regions I-X
State NPDES Program Directors
I am extremely pleased to transmit to you the revised and
final version of the Enforcement Management System (EMS) Guide.
This revision includes Chapter I, Chapter II, Attachment A
(Violation Review Process), Attachment B (the Enforcement Response •
Guide), Attachment C (NPDES Violation Summary format). Appendix I
(List of Guidance and Supporting Documents), and Appendix II
(Abbreviations of Frequently Used Terms and EMS Definitions). The
EMS Guide (especially the principles in Chapter II) provides
additional explanation of the regulatory requirements of 40 CFR
123.26, Requirements for Compliance Evaluation Programs.
The attached document is a revision of the 1977 EMS Guide.
It differs from the 1977 version in several ways. Perhaps most
significantly, it requires that all administering agencies have
a written description of an enforcement management system and
that such a system be consistent with the principles of the 1986
EMS. The 1977 version had no such stated requirement. Additionally,
the 1985 EMS is expanded beyond Chapters I and II and will eventually
include all of the most significant strategy and policy documents
affecting the NPDES compliance monitoring and enforcement program.
Finally, this document has been updated to incorporate the language
and concepts of the "Guidance for Oversight of the NPDES Program"
and to reflect the emergence of a pretreatment enforcement program.
Later this year, a complete version of the EMS Guide with all
chapters will be transmitted to you. The table of contents included
in this transmittal identifies the additional chapters which will
be included in that version. The 1986 EMS Guide will be expanded
to nine chapters, including a chapter on Pretreatment Enforcement.
These chapters will be transmitted when they are available and will
contain policy and guidance for specific program areas.
^M
-------
-2-
While the principles of EMS have not been changed, the 1986
4S Guide may require that some Regions revise and update their
,rst em, and that NPDES States develop or update written procedures
3r a State-specific EMS. Both Regions and NPDES States should now
3opt and implement the principles of EMS and procedures for
sviewing violations, determining appropriate actions, and managing
ermit compliance information that are consistent with the EMS
aide. All administering agencies are expected to have written
fsterns in place by October 1, 1986.
I want to express my deep appreciation to those Regional,
eadquarters, and State personnel who have served on the Work Group
hich developed this document. Rebecca Hanmer, Director, Office of
ater Enforcement and Permits has told me that the Group labored
ong and well. I believe you will agree that the final document
eflects their substantial efforts.
If you have questions about this document or the plans for
mplementation, please feel free to call J. William Jordan, Director,
nforcement Division (202/475-8304) or Anne Lassiter, Chief, Policy
evelopment Branch (202/475-8307).
ttachments
-------
THE ENFORCEMENT MANAGEMENT SYSTEM
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
(CLEAN WATER ACT)
U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF WATER
1986
-------
FOREWORD
This document describes the Enforcement Management System (EMS) for
the National Pollutant Discharne Elimination System (NPDES) Proaram.
The Enforcement Management System is a process to collect, evaluate,
and translate compliance information into timely and appropriate
enforcement actions. The process is supplemented by chapters
various procedures, policies and reoulations. While the Enforcement
Management.System embodies certain fundamental principles, the
process for applying those principles must be flexible and dynamic.
The Enforcement Management System reflects the collective experience
o* the administering agencies in managing ^PDES compliance and
enforcement activities.
Lawrence J. Jensen Effective Date
Assistant Administrator for Water
-------
-TABLE OF CONTENTS
CHAPTER'II.
CHAPTER I. Introduction and Background
A. Introduction and Purpose
B. Use of this Document
C. Overview of Delegated States
The Enforcement'Management System
A. The-Basic Principles of the Enforcement
Management System
Attachment A - The Violation Review"Process
Attachment B - The Enforcement Response
Guide
Attachment C - Violation Summary Form
Administrative Enforcement Actions - Policies and
Guidance
Civil Penalty Policy and Guidance
Compliance Inspections - Policies and Guidance
A. The Compliance Inspection Strategy
B. DMR/QA Policy
The National Municipal Policy and Guidance
Program Reporting Requirements -Policies and
Guidance
A. The Permit Compliance System (PCS) Policy
B. QNCR Guidance
"CHAPTER VIII. Pretreatment Enforcement - Policies and Guidance
• A. Municipal Pretreatment ,Enforcement
VB. Industrial Pretreatment l.Enforcement
*CHAPTER III
•CHAPTER IV.
•CHAPTER V.
•CHAPTER VI.
•CHAPTER VII,
•CHAPTER IX.
APPENDIX I
APPENDIX II
Federal Facility Enforcement -Policies and Guidance
(Being Revised)
List of Supporting Documents
List of Abbreviations and Definitions
• To be Added
••To be Developed
-------
CHAPTER I - INTRODUCTION AND BACKGROUND
A. Introduction and Purpose
Achieving and maintaining a high level of compliance with
environmental laws and regulations are two of the most important
goals of Federal an* State environmental agencies. The Unite-j
States Environmental Protection Agency (USEPA) has stressed
consistently the need for a systematic administrative approach
to compliance monitoring and enforcement with the objective
of achieving a consistent, uniform national posture in the
implementation of the National Pollutant Discharge Elimination
System (NPDES) program established by the Clean Water Act
(CWA).
As the NPDES program has matured, there has been increased
awareness that the program will be effective only to the extent
that administering agencies (EPA or an NPDES State) are able
systematically and efficiently to identify instances of non-
compliance and then to take timely and appropriate enforcement
action to achieve the final objective of full compliance by the
permittee with the CWA. Each administering agency should have
management procedures to track the status of permit compliance>
to surface violations/ and to take timely and appropriate
enforcement action to achieve a return to compliance. USEPA
is also responsible for assuring that administering agencies
carry out their NPDES program functions--including timely and
appropriate enforcement responses—in a generally consistent
manner in order to protect water quality evenly across the
country, and to ensure that all dischargers throughout the
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nation receive fair treatment under the law. With the growth
in the number of States approved to administer their own NPDES
programs, EPA and the States face the challenge of ensuring
fairness and consistency among NPDES programs while maintaining
a strong Federal/State partnership which is based on mutual
trust and respect.
Effective use of available resources is also important*to
achieving a consistent, national enforcement program. In
implementing compliance tracking and enforcement systems,
administering agencies must balance resources to ensure effective
tracking and maintenance of compliance by permittees. Conse-
quently, it is necessary for administering agencies to develop
policies and strategies which lead to: (1) the systematic
tracking of abatement steps taken by the permitted dischargers;
and (2) specific procedures for adjusting resources to achieve
compliance results in the most efficient manner possible.
Fully functioning NPDES programs are required to permit all
s,
dischargers* both maior and minor, and to conduct appropriate
compliances-assessment and enforcement ^activities ^for all
permittees. The EMS places priority on rapid response to
instances of significant noncompliance, especially by major
dischargers. As resources allow, administering agencies should
also address minor dischargers of concern and other instances
of noncompliance.
This document establishes a framework upon which to build the
management of a national enforcement program: the Enforcement
Management System (EMS). The EMS constitutes a system for
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•translating compliance information into timely and appropriate
enforcement actions. It also establishes a system for identifying
priorities and directing the flow of enforcement actions based
on these priorities and available resources. Finally, the EMS
provides the flexibility for each administering agency to develop
management procedures which are best suited to .its operations
and resources with the goal of most efficiently translating
compliance information into timely and appropriate enforcement
action.
The original EMS was developed in 1977 through the efforts of
a Federal/State work group. The fundamental principles of EMS,
as established in that first work group, are still applicable
to any compliance and enforcement system. However, the develop)
raent of new and more comprehensive policies and procedures
necessitates both the update and expansion of EMS.
The original EMS Guide covered only the material in Chapters I
and II (including Attachments) of this document. The new EMS
Guide is expanded, attempting to pull together all of the most
relevant, documents associated with an effective compliance
monitoring and enforcement program (see Appendix I). The
chapters of this system provide guidance and policy on indivi-
dual elements of the enforcement system. As new policies are
developed and old policies modified, they will be incorporated
into the EMS. The EMS, therefore, provides a framework of
basic principles, supplemented by policies and procedures which.
may be modified reflecting "he dynamic process of compliance
monitoring and enforcement.
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B. Use of This Document
The EMS is a national guidance document to be used by
administerinq agencies in the development and improvement of
their own compliance tracking and enforcement systems. The
EMS, however, provides -sufficient flexibility so that adminis-
tering agencies may develop specific systems 'that accommodate
their organizations, resources, and State laws, yet .result .in
reasonable national consistency of enforcement.
All administering agencies should have an enforcement management
system which is consistent with this document and the NPDES
regulations (40 CFR 123.26). That system should be in writing
and is subject to annual review. Of course, the length and
complexity of the EMS will vary among administering agencies,
reflecting variability in size-of program. Each administering
agency should review its existing system as quickly as possible
to determine whether it is consistent with the principles
stated here. Where it is not, the system should be amended.
There is no one "correct" EMS. What is described here are the
minimum basic principles for an^effective compliance'tracking
and enforcement system. The specific 'details .of 'how these
basic principles become operational by an administering agency
may vary widely and should, of course, reflect differences in
organizational structure, staffing and State laws. As long as
the basic principles are incorporated, the agency-specific
system will be acceptable.
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The concept: of national consistency in the implementation of
the NPDES program is one of the basic tenets of the CWA. While
it would be difficult/ and not necessarily effective, to have
identical enforcement responses for identical violations in
different States, the enforcement response should be directly
related to the severity of the violation. Given the decentrali-
zation of authority and responsibility in carrying out the
NPDES program, implementation of the basic EMS principles in
the EPA Regional Offices and the NPDES States should produce
national consistency, while still accommodating differences
between Regions and States.
C. Overview of Approved State Programs
A strong Federal/State relationship is essential to the effect
operation of a program as comprehensive and complex as the
NPDES program. One method of fostering a strong relationship
is to assure that roles are clearly defined and that the "rules
of the game" are understood by everyone. To achieve this end,
the USEPA and States have worXed together to develop "Guidance
for Oversight of the NPDES Program" (see Appendix I) which is
an umbrella document that establishes the general criteria
under which both parties will operate. This document also sets
forth the basic criteria for oversight of enforcement programs.
The Oversight Guidance requires that Regions and States negotiate
individual agreements that clearly define performance expecta-
tions for the NPDES program, as well as the respective roles
and responsibilities of the Region and the State in administer!
the NPDES program. The Guidance is based on the assumption
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that where a State has an approved NPDES program, it has the
primary responsibility to initiate appropriate enforcement
action to ensure compliance by permittees. However, USEPA has
oversight:responsibility for that program, including the
responsibility to ensure that-enforcement actions are taken on
a timely and appropriate basis, and may^initiate direct Federal
enforcement action. The Guidance requires the development of
protocols for notification and consultation to foster effective
communication and the timely resolution of issues between
Regions and States, and contains criteria for direct Federal
enforcement action.
The EMS further defines 'the principles necessary to the operation
of an effective compliance/enforcement program and provides the
basis for evaluation of '.the performance of administering agencies.
This evaluation occurs at two levels: 1) USEPA Headquarters'
mid-year evaluations of Regional implementation of the EMS; and
2) Regional Offices' reviews of NPDES States, including file
audits of State programs. All States that receive Federal
grants for implementation of waterrquality control programs can
also expect Regions to evaluate their performance in the
compliance/enforcement area against commitments made in -the
grant agreements.
In addition to the Guidance for Oversight of NPDES Programs and
the EMS, there are other documents which are necessary for
effective implementation of the NPDES program (see the list of
guidance documents in Appendix I). Included among these are
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the "Annual Operating Guidance" which identifies priority program
activities for the operating year, and agency policy documents.
Administering agencies are expected to be knowledgeable about
these documents; however, they are not included as chapters in
the EMS since they are frequently effective for a limited
period of time or are more inclusive than the MPDES program.
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CHAPTER II. THE ENFORCEMENT MANAGEMENT SYSTEM FRAMEWORK
The Basic Principles of EMS
There are seven basic principles that are common to an effective
EMS. .Described below, are these principles and the .minimum basic
requirements necessary for an effective tracking and enforcement
system. As stated in the Introduction, the specific details of how
each of these basic principles becomes operational in a specific
State or Regional system may vary to reflect differences in
organizational structure, position mixes, and State laws. As long
as the basic principles are incorporated and are clearly recognizable,
the resulting system is acceptable. 'The purpose of the EMS is to
translate compliance information into-enforcement actions.
The EMS should:
1. Maintain a source inventory that is complete and accurate.
2. Handle and assess the flow of information available on a
systematic and timely basis..
3. Accomplish a pre-enforcement screening by reviewing the
flow of information as soon as possible after it is
received.
"4. Perform>a more formal enforcement evaluation where
appropriate,.using systematic evaluation screening .criteria.
5. Institute a formal enforcement action and follow-up where-
ever necessary.
6. Initiate field investigations based on a systematic plan.
7* Use internal management controls to provide adequate
enforcement information to all levels of the organization.
These principles are discussed in greater detail in the following
text. Each principle has certain subparts .which are integral elements
of the entire system.
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Principle No. 1; Maintain a Source Inventory
At the foundation of the EMS is a complete and accurate
compilation of all pertinent information on all dischargers
covered by NPDES permits. An effective program cannot exist
without this information base. [It is fully recognized that
the level of information for major dischargers may be more
complete than that for minor ones. The amount, of information
on minors will be a function of the administer -.ng agency's
resources and priorities.] The ENS should have a detailed
inventory of sources which encompasses the elements listed
be lows
A. The inventory should include appropriate basic information
concerning each source, such as name* location, permit
i
number, discharge limits, compliance dates, other permit
requirements and effluent data. For minors, this source
inventory might be as simple as a permit compliance
file.
B. There should be a routine schedule for updating the
inventory to refls •:. changes in basic information, such
as changes in compliance schedules and permit limits,
and changes in the ownership/address of a source. The
more frequentlv the information is updated, the greater
the confidence .n its accuracy.
C. The inventory should be a ready reference for historical
information (e.g., has a sc irce previously missed or
failed to comply with schedule requirements). This
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-historical inventory for-majors and significant minors
will consist of many parts, including a violation summary
report (see Attachment C) and a log of previous enforce-
ment actions. The summary and log are discussed in
•greater detail-elsewhereiin-the'text.
D. 'The inventory data for major's and-significant-minors
should be entered -directly -into -the.;Permit -Compliance
System (PCS, the automated NPDES data base), where it
exists, in a timely manner consistent with nationally
established procedures (see Chapter IX). States which
are not regular users of PCS, and do not have an auto-
mated system that is compatible, should supply data to
the Region in a form that facilitates USEPA's entry of
the data into PCS.
E. Maintenance of the source inventory should be assigned
to a specific, identified organizational entity so that
responsibility for the completeness and accuracy of
source information is clear.
F. Data on dischargers-should be readily-accessible to-all
parties (USEPA Headquarters, Regions, NPDES States .and
citizens) to facilitate cooperation in carrying out
NPDES compliance and enforcement responsibilities.
G. There should be an identifiable process for determining
which dischargers have not applied for permits after
being required to do so and for following through in
these cases.
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Principle No. 2; Flow of Information
In order to ensure that the enforcement system is current, the
flow of information into the system is critical. With the
growth in the number and complexity of environmental regulatory
programs, the need for rapid, efficient flow of information has
become more important. Therefore, it should be possible to
integrate information about individual dischargers obtained
from various sources into an effective information flow, which
is then channeled into decision and control points in the
system so that all information on an individual discharger is
available at any point in time.
The following items are examples of the types of reports and
other data that are potential sources of information for use
/
in an enforcement system:
— Data-Related reports (including such items as
compliance reports, industrial user reports, construc-
tion-completed reports, bypass/overflow reports, etc.)
~ Construction grant-related information
~ Discharge Monitoring Reports (DMRs)
— Inspection reports from field surveys
— Operation and maintenance reports, including annual
fiscal data as available
— Reports from other State and Federal agencies, e.g.,
health data, information on fish kills
— Reports and complaints from citizens
— Evidentiary hearing information
Permit modification requests
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Information from other programs, such as the Resource
Conservation and Recovery Act (RCRA), Comprehensive
Emergency Resoonse and Compensation Liability Act
(CERCLA), Toxic Substances Control Act (TSCA), and the
Safe Drinking Water Act (SDWA)
— Various pretreatment program reports
— Environmental audit reports provided by the permittee
where they are required by the Agency to meet its
statutory mission
The elements needed to assure the smooth flow of information
are as follows:
A. Procedures should be established to integrate the
information from various sources about individual
dischargers into an effective data flow. The data
flow should be designed so that it is readily access-
ible at appropriate points in the decision-making
process. These procedures will facilitate the flow of
information between the States and USEPA, and will
-assure that '.the 'terms and commitments contained in .the
various -agreements between .the State -and USEPA .are
met.
B. Appropriate time frames for the information flow should
be established and incorporated in the above procedures
to ensure timely response to the information. For
example, it may be appropriate to say that the allowable
elapsed time from receipt of a compliance report to
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its availability for.review should be less than a
week. Special procedures and/or agreements should be
established with other programs (e.g., RCRA, TSCA, and
CERCLA) to insure the timely receipt of information
that may have a bearing on water enforcement actions.
Principle No. 3t Pre-Enforcement Screening
The ore-enforcement screening process involves a series of
steps that should occur in the review of available information
to efficiently sort out noncomplying sources for appropriate
enforcement action. This process is critical to the integrity
of the NPDES enforcement system because it initiates the process
of sifting through the entire universe of permittees and others
subject to NPDES requirements. This leads to later steps that
place noncompliers into various categories for subsequent
action. Most steps in the ore-enforcement screening process
can be accomplished by a compliance analyst who is trained to
identify signs of continuing or serious noncompliance.
Documented, in-place pre-enforcement screening procedures should
include the following elements:
A. A system for initial review of incoming information:
(1) Procedures should clearly specify who is responsible
for each screening function in this initial review.
(2) Procedures should require the forecast of reports
due within a specified period of time (e.g., fore-
•
casting all reports due for tha next 30 days).
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(3) Specific guidelines for determining obvious
compliance from noncompliance should be developed.
The guidelines should at least establish criteria
to be used to: determine receipt vs. nonreceipt;
Identify the methodology for determining effective
permit limits and limits required by Agency or court
orders-and whether permit-effluent limits or other
limits have been exceeded; and assign priority for
review of incoming reports of different types.
(4) Procedures describing follow-up action once a.
determination of compliance status has been made
should include:
a. In cases of obvious compliance, no further
review may be necessary. In such situations,
the aopropriate update regarding the compliance
status is made in the source inventory.
b. Appropriate responses and time frames for
obvious noncompliance should also be established.
For example, nonreceipt of a report should be
followed up by a call or letter within ten
days. Procedures should be specified for
executing the initial response, triggering the
follow-up, and closing out the case (including
feedback to the source inventory, and entering
the information into PCS).
(5) Control procedures should be established for the
internal transmittal of compliance information //
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(6) Procedures should be set up for the pre-enforcement
screening of the Discharge Monitoring Reports (DMR),
to determine whether the Violation Review Action
Criteria (VRAC) have been exceeded. Attachment A
to this chapter describes in detail those criteria
and their use. DMRs should be screened and data
entered into PCS (or transferred to the Region where
a State does not use PCS) within 30 days of their
receipt.
B. A system for development of a chronological history of
nc-compliance:
The initial review of the incomin- information will
determine an instance of possible noncompliance by the
regulated facility (see A(3) above). Any instance of
permit noncompliance should be entered into PCS or a
comparable tracking system. The system that is used
should be capable of. producing a convenient h:- Jtorical
reference of instances of noncompliance. Procedures
should be developed to preserve th•- historic 1 summary.
C. The means for technical evaluation of apparent
noncompliance:
Following the preliminary screening in the tvo steps
above, staff review of the file of a dischai r that
appears to be in noncompliance should be con , acted for
purposes of a substantive technical 2valuation. At this
IfY") point in the process, it is important to:
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(1) Have detailed procedures arid time .frames -for
conducting the technical evaluation to determine
the level and frequency of the violation, and to
determine the appropriate response to the specific
violation.
(2) Document any action taken/not taken (including the
technical reason when the-technical evaluation
indicates that a violation falls below the level of
"immediate action") in the historical summary and/or
PCS. These types of violations remain "actionable"
for future use as part of a subsequent file review.
(3) Establish timeframes for action on detected
violations.
(4) Have standard procedures for compiling material to
be used in the next evaluation step. For example,
if the decision is made to proceed with a formal
enforcement action, the procedures should set out
the tvpe of information to be contained in the
documentation-sent to the - assigned author of .the
proposed action.
(5) Install a tracking system (e.g., violation summary,
pink slip) which should be maintained to locate an
enforcement action at any time in this process (see
the example in Attachment C).
01
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(6) Have procedures that identify who is responsible
for completing each phase of the evaluation and who
should make each decision as the instance of apparent
noncompliance is processed.
Principle No. 4t Enforcement Evaluation
When an instance of noncompliance is identified by the
pre-enforcement screening, the appropriate follow-up action
must be determined. This is a determination that should be
made by technical personnel with legal consultation, when
necessary. The following elements need to be in place:
A. Guidelines and procedures which assist in determining
the appropriate levels of action for specific categorie^^
of violations. National guidance on the appropriate
enforcement response to specific violations has been
developed and is contained in the Enforcement Response
Guide (Attachment B). Deviations from this Guide may
legitimately occur, depending upon the facts of a
specific case.
B. Procedures delineating the respective roles of the
technical and legal staff and establishing procedures
for coordination.
C. Procedures for compiling enforcement action background
information to support the enforcement decision.
D. Procedures for interaction and coordination with other
affected programs (e.g., RCRA, CERCLA and/or other
\rv~> agencies). Written agreements between program* may be
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E. -Procedures-for information flow and decision-making
necessary to secure concurrence or nonconcurrence on the
enforcement action.
F. Time frames for completing a determination as to whether
the violation is "actionable" and initiation of the
appropriate response. For example, the -provision could
\state that the overall time "from .the date a report/event
is due to initiation of the appropriate art:on should
not exceed 45 days. The administering ag•-?/ should
establish time frames which are subject to review.
G. Procedures for escalating enforcement action if compliance
is not achieved expeditiously after taking the initial
action.
R. Procedures for closing out and updating the file and
for returning the compliance information to the data
base. When it is decided that an enforcement action
will not be taken, it is important to have a written
record that clearly documents why the alternative action
(i.e., an; informal motification or a permit modification)
is more appropriate.
I. Procedures for providing feedback to the source inventory
that would correct any errors/misinformation found during
the screening process.
Principle No. 5; Formal Enforcement Action and Follow-Up
This crucial principle is the cutting edge of the EMS and begins
when the decision has been made to issue a "formal" enforcement
• • •
and State statutes
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and/or regulations. In general, that: decision is triggered by
a failure to achieve compliance within a specified period of
time through less formal means. According to the USEPA "Guidance
for Oversight of NPDES Programs", a formal enforcement action
is one that requires actions to achieve compliance, specifies a
timetable, contains consequences for noncompliance that are
independently enforceable without having to prove the original
violation, and subjects the person to adverse legal consequences
for noncompliance. Specific State enforcement actions should
be addressed by Regions and States on a case-specific basis.
Regions can exercise their own judgment in interpreting and
adapting national criteria to States, so long as they can
justify the adaption of the State's enforcement process consistent
with national objectives.
The following elements for formal enforcement action should be
included in the EMS:
A. Specific designation of responsibility for writing the
formal enforcement action.
B. Guidance for the form and substance of the formal enforcement
action for use by the legal and technical staff. The basic
elements of the action should be summarized on this form.
C. A tracking system for following the progress of formal
enforcement actions through to final physical compliance.
This compliance tracking system should be capable of supportit
the flow of required information into PCS.
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^t). 'Procedures -and ^guidelines ?for egcataring -the :artion £f
compliance is not achieved expeditiously, especially in
cases of noncompl.lance with an earlier enforcement action.
E. Procedures for establishing the basis for closing enforcement
actions and routing the-appropriate compliance information
to the source inventory.
Principle No. 6: Initiation of Field Investigations
Field investigations are an integral part of any enforcement
program. The level of enforcement action is often dictated by
the ability of field inspection programs to respond to enforce-
ment needs. Enforcement programs are responsible for selecting
inspection candidates for both routine and special efforts of
the field units in support of the program. Field investigations
can be started at any time in the enforcement process. Chapter
V of the EMS Guide provides detailed guidance on field inspec-
tions; however, the following elements related to field
investigations should be included in an EMS.
A. Criteria and procedures for detecting candidates for field
investigations. This should .be accomplished through the
development of an annual compliance inspection plan. Plans
-and procedures consistent with the Compliance Inspection
Strategy (Chapter V) and clear criteria for selecting
candidates for appropriate mix of routine and special
compliance inspections must be in place.
B. Designation of responsibility to the enforcement program
manager for requesting field investigations in support of
the enforcement program.
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C. Tiraeframes for reporting the findings of a field
investigation. For example, the procedure may require a
full report to be submitted to the enforcement program
within 30 days of the completion of the investigation.
D. A mechanism for informing field investigation personnel of
the utilization of field surveys.
E. Procedures for coordinating field investigations between
the administering agencies.
Principle No. 7t Internal Management Control
Throughout the enforcement process it is vital for all levels
of management to be able to assess the effectiveness of the
program and to identify progress or deficiencies. Consequent!^
the organization's enforcement procedures should provide feed-
back to give management the information it needs to ensure that
the program makes timely decisions and meets commitments.
Those procedures should allow for self-evaluation based on
reasonable timeframes, and should identify the focus of respon-
sibility for each element of the EMS. For internal management
control* an EMS should provide for:
A. The maintenance of a record c£ specific formal enforcement
actions taken by the organization at any given period of
time*
B. A method of tracking information in terms of location and
action/reaction time.
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C. A system of evaluating specific activities in terms of their
quality, timeliness, results, and accomplishment of program
objectives.
D. ;A system for assessing how the compliance data,tas indicators
of environmental results, help-meet the goals of the CWA.
E. Procedures that will result in-effective communication
between the USEPA Regional Offices and the States on all
aspects of the enforcement process, including: the current
status of noncompliant sources and enforcement actions as
reported in the Quarterly Noncompliance Reports; audit of
approved State programs; problem resolution; advance notifi-
cation of enforcement actions initiated by USEPA in approved
States; and similar program matters.
Conclusion
The successful Enforcement Management System should contain certain
key elements while remaining a flexible and dynamic system which is
geared to the organization and resources of the particular adminis-
tering agency. The system 'Should be'Strong and.resilent enough to
continue * and•to translate compliance information 'into enforcement
results, regardless of pressures that affect the system. The key
to the success of the system is the unimpeded flow of information
through the system which facilitates the rapid return of a non-
complying permittee to compliance. Good communication among all
parties in the system is essential to its success.
This chapter of the Enforcement Management System has described the
basic principles of the system. Implementation of the principles j .-
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number of essential documents support this framework in order to
make the system whole (see Appendix I). The remaining chapters of
the EMS contain the most important of the supporting enforcement
guidance and policies.
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ATTACHMENT A
VIOLATION REVIEW PROCESS
Many NPDES permittees may experience-some violation of their permit
conditions during the life xjf - a 'permit or may violate enforcement
orders. An-effactive Enforcement Management System (EMS)'should
describe a process for reviewing and.screening those violations:to
assure that enforcement resources are concentrated on the most
serious violations.
Throughout the violation review process, it should be remembered
that any violation of an NPDES permit is a violation of the Clean
Water Act (CWA) for which the permittee is strictly liable, and for
which USEPA encourages some type of enforcement response. An
administering agency's decision regarding the appropriate enforcement
action should be based on an analysis of all of .the facts and
relevant legal provisions involved in a particular case. A decision
to take no action in a given situation is within the enforcement
discretion of the administering agency* so long as the reason for
exercising~the no-action alternative is warranted and 'documented.
The violation review process has two main review elements—screening
all relevant data to determine: 1) whether there has been any type of
violation and the nature of that violation, and 2) whether the
violation requires professional review (defined by Violation Review
Action Criteria) and in some cases, listing on the Quarterly
Noncompliance Report (QNCR). These Are discussed below.
1C
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General Screening Considerations
An administering agency's decision on whether to initiate an
enforcement action, and the type of action which is appropriate,
should include an evaluation of all available data to determine
the seriousness of the violation, the compliance history of the
permittee, and other relevant facts in the case. The decision
to proceed should not be based solely on whether there is a
violation. There are many other circumstances which should be
considered in deciding whether to proceed with an enforcement
action. Included are the following: Da permit or enforcement
order schedule has been violated; 2) a violation has occurred
that presents an actual or imminent threat of significant harm
to the environment or to the public health and safety; 3) a
violation has occurred which, unless corrected, would erode the
integrity of an environmental protection program; 4) pretreatraent
program requirements are violated; 5) a source has failed to
report; 6) a source has conducted an unauthorized bypass; 7)
inspection results indicate a severe problem; 8) there are
known or suspected operation and maintenance problems; 9)
information provided by interested parties indicates that a
significant violation has occurred; and 10) there are aesthetic
impacts related to the violation. These general violation
screening considerations should be applied in the violation
review process.
Violation Review Process
An effective Enforcement Management System (EMS) should include a
process for reviewing PMRs and other reports submitted by the
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permittee to determine whether that permittee is violating the
terras of its permit or enforcement order, where the permittee is
subject to such an ord^r. As a part of that process, the adminis-
tering -agency should establish criteria for reviewing violations to
determine-which violations require priority review by a professional
to determine whether the violation should be subject1to a formal or
informal enforcement response. The initial screening of DMRs-to
make this determination is normally conducted by para-professionals.
Any violation of a permit or enforcement order that exceeds the
screening criteria — called Violation Review Action Criteria
(VRAC) — should be reviewed by professional personnel to determine
the appropriate enforcement response. The remainder of this section
addresses the VRAC for: a) effluent violations of permits and
enforcement orders; and b) schedule/ reporting and other non-effluent
violations of permits and enforcement orders.
A. Effluent Violations
Every NPDES permittee must submit Discharge Monitoring Reports
(DMRs) to the administering agency for its review to determine
whether there are violations of the effluent limitations in the
permit or in an enforcement order that is active against the
permittee. Federally-designated majors or P.L. 92-500 funded
minor NPDES permittees should submit DMRs either on a monthly or
quarterly basis. (Other permittees must also report but they may
be required to report on a less frequent basis.)
: 'The EMS encourages the administering agency to take-an appro-
priate enforcement response against all violations.
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A particular violation may be resolved by a permittee so that a
formal enforcement response by the regulatory agency is unnecessary.
Other violations may require formal enforcement action for
resolution.
Table I of this Attachment identifies the VRAC to be applied by
administering agencies in screening performance against effluent
limits. The VRAC established for violation of permit effluent
limits are more stringent than the reporting criteria established
in the QNCR regulation. Magnitude is not a factor in screening for
30 day average violations—only the number of violations—and
criteria are included for 7 day average and daily maximum violations.
The VRAC for violation of effluent limits in enforcement orders aj
equivalent to the criteria for reporting established by the CtfCR
regulation. Approved NPOES States should consider the VRAC included
in Table I to be guidance and may modify the screening criteria to
reflect State resources and priorities. However, the VRAC established
by approved NPOES States should be no less stringent than the
criteria established in Table I and should include criteria for
violations of a seven day average or daily maximum. If the State
chooses to establish VRAC different from Table I, the EMS should
explain the basis for setting the threshold for VRAC.
B. Schedule, Reporting and Other Violations
The administering agency routinely examines the status of a permit ee
on a monthly or quarterly basis through review of DMRs- and other
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-5-
reports to determine whether the permittee is complying with sched-
ules, reporting, or other requirements set by the permit or by an
enforcement order, where such an order exists. As discussed in A
above, the.EMS encourages the-administering agency to take an
appropriate enforcement action against all violations. A particular
violation may be resolved by a permittee so-that ,a formal enforcement
response by the regulatory agency is unnecessary. Other violations
may require formal enforcement action for resolution.
Table I of this Attachment identifies the VRAC to be applied by
administering agencies in screening performance against schedule,
reporting, and other requirements for all permittees. The VRAC
for violations of schedule and reporting requirements in this Table
are, in fact, equivalent to-the criteria established for reporting
in the regulation, "National Pollutant Discharge Elimination-System
Regulations; Noncorapliance and Program Reporting," commonly referred
to as the QNCR regulation. Approved NPDES States may modify the
VRAC included in Table I, but in no case should the VRAC be set at
a level less stringent than the reporting criteria identified in
Table I.
Significant Noncompliance (SNC)i Definition and Use
The QNCR regulation (40 CFR 123.45) establishes criteria for
reporting violations of permit conditions or enforcement orders by
major permittees in the Quarterly Noncompliance Report (QNCR).
Prom the universe of violations identified in the QNCR, a subset Of
violations will be identified as significant noncompliance (SNC).
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-6-
An explanation of which violations identified on the QNCR will
be considered SNC is provided in the QNCR Guidance. It should
be noted that since the definition of SNC is in guidance, it
may change from time to time.
As stated previously, VRAC exceedances do not automatically require
a formal enforcement response, but do require a professional
review. The concept of SNC is important because it identifies
those violations which must receive a formal enforcement response
or return to compliance within a fixed period of time unless an
acceptable justification is established for not taking action.
(See Enforcement Response Guide.) Administering agency per-
formance in addressing SNC on a timely and appropriate basis
will be tracked in the Agency's Strategic Planning and Management
System (SPMS).
Summary
The VRAC are criteria for screening DMR's and other reports submitted
by permittees to determine whether the violation(s) requires a
professional review. Identification of a violation as meeting or
exceeding the VRAC does not establish the type of enforcement
response which should be taken or the time frame in which it should
be accomplished.
for-many violations, VRAC is equivalent to the reporting criteria
established by the QNCR regulation. Those violations will be
reviewed by a professional and listed on the QNCR. In other cases,
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- 7 -
violations will be reviewed by a professional-even "though "they
do not meet the magnitude or frequency criteria of the QNCR.
Finally, a subset of violations identified on the QNCR will meet
the definition of SNC. A designation that a violation is SNC
requires that the violation be corrected or that a formal enforce—
ment response be initiated within a specific period of -time .by the
administer]no agency, unless an acceptable justification 'for"no
action is provided. This definition is provided in the QNCR
Guidance.
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TABLE I
VIOLATION REVIEW ACTION CRITERIA
VIOLATIONS OF EFFLUENT LIMITS
a. Permit Violations Criteria
30 Day Average Violations * 2 violations in 6 months
7 Day Average violations Two violations in a month
Daily maximum violations* Four violations in a month
• pH <4.0 or >11.0, or if continuous
monitoring criteria are exceeded
* Storm Water Four times the effective limit
Any Limit Causes or has potential to cause
a water quality or a health
problem or the violation is of
concern to the Director
b. Enforcement Order Violations
Any Limit Cited in the Any violation during the quarter
Enforcement Order**
VIOLATIONS OF COMPLIANCE SCHEDULE PERMITS AND ENFORCEMENT ORDERS
Start Construction 90 days past scheduled date
End Construction
Attain Final Compliance
All Additional Milestones 90 days past scheduled date
Excludes bacteriological counts (e.g.,fecal coliform), color,
and thermal parameters for which criteria are discretionary.
In the absence of interim effluent limits in an enforcement
order, permit limits should be tracked and evaluated based on
the criteria for permit violations.
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- 2 -
VIOLATIONS OF REPOPTING REQUIREMENTS IN PERMITS AND ENFORCEMENT
ORDERS
Discharcje Monitoring
Reports (DMRs)
Pretreatment Renorts
Compliance Schedule Report
Final Progress Report
All Additional Renorts
30 days overdue or incomplete
or not understandable
30 days overdue or incomplete
or not understandable
30 days overdue or-incomplete
or not understandable
30 days overdue or incomplete
or not understandable
VIOLATIONS OF OTHER REQUIREMENTS
a. Pretreatment Program
-Implementation
-Enforcement by POTW
b. General Permit Conditions
-Record Keeping, O&M
-BMP
c. Enforcement Orders
Any Other Reguirements
Cited in the Enforcement
Order
Failure to implement (issue
permits, enact ordinances,
inspect ?IUs) local pretreatment
program reguirements.
Failure of the POTW to enforce
IU pretreatment reguirements
Violation of narrative reguire-
ments (inaccurate recordkeeping*
inadeguate treatment plant
operation and maintenance)
•'•Failure 'to':follow Best
Management Practices (i.e.,
recuirernent to develon SPCC
plans and implement BMP)
Any violations during the
guarter
d. Other Violations
Violations for which a formal
enforcement action is recommended
by the Enforcement Response
guide.
•"1
. 7
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- 3 -
ANNUAL REVIEW
The file of any major permittee or minor permittee of concern
should be reviewed at least once in a twelve month period, regardless
of whether the above criteria have been exceeded.
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ATTACHMENT B
ENFORCEMENT RESPONSE GUIDE
This guide is for the use of NPDES enforcement officials who are
responsible .for determining the appropriate enforcement,response
to a specific violation of the NPDES permit--and related sections
of the Clean Water Act. It is intended-to serve two main purposes:
1. It recommends enforcement responses that are timely and
appropriate in relation to the nature and severity of the
violation and the overall degree of noncompliance;
2. It provides a guide to ensure a uniform application of
enforcement response to comparable levels and types of viola-
tions/ and it can be used as a mechanism to review the appro-
priateness of responses by an enforcement agency.
•
This guide should be used to select the most appropriate response
to instances of noncompliance. When making determinations on the
level of the enforcement response, the technical and legal staff
should consider the degree of variance from the permit condition or
legal •requirement, "the duration of the violation,'previous -enforce-
ment actions taken against the violator, and the deterrent effect
of the response on the similarly situated regulated community.
Equally important are considerations of fairness and equity, national
consistency and the integrity of the NPDES program.
In any particular case, these factors may lead to a response that
differs from that contained in the guide. It should be emphasized
that any violation of an NPDES permit is a violation of the Clean
• - vv
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- 2 -
Water Act (CWA). The administering agency (Region or approved State
in its exercise of enforcement discretion, may elect any of the
enforcement responses available under and consistent with the CWA.
All SNC violations must be responded to in a timely and appropriate
manner by administering agencies (see Attachment A). The response
should reflect the nature and severity of the violation, and,
unless there is supportable justification, the response must be a
formal enforcement action (as defined elsewhere in this document),
or a return to compliance by the permittee generally within one
quarter from the date that the SNC violation is first reported on
the QNCR. Administering agencies are expected to take a formal
enforcement action before the violation appears on the second QNCR,
generally within 60 days of the first QNCR. If the approved State
does not act before the second QNCR, the State should expect USEPA
to take a formal enforcement action. In the rare circumstance when
i
formal enforcement action is not taken, the administering agency is
expected to have a written record that clearly justifies why the
alternative action (informal enforcement action or permit modification)
was more appropriate.
A key element in all enforcement responses is the timeliness with
which they are initiated and effect compliance. Given many types
of violations and the variance in resources available to the
administering agencies, no specific time frame is established in
which to initiate and complete a given response. Within 30 days
of the identification of any violation, the appropriate response.
should be determined, and any action taken (or not taken) should
)2O
-------
be documented. If noncompliance continues beyond what is considered
to be a reasonable time, the type of formal enforcement action
needed should be established.
This guidance addresses a broad r-ange of NPDES violations. It is
not intended to cover all types of violations. The .responses in
this guide are suggested responses. They reflect the enforcement
actions available to the USEPA. Other administering agencies may
have alternative enforcement responses that are equally effective.
The aeasure of the effectiveness of an enforcement response includes:
~ whether the noncoraplying source is returned to compliance
as expeditiously as possible;
— whether the enforcement response establishes the appropriate
deterrent effect for the particular violator and for other
potential violators; and
— whether the enforcement response promotes fairness of
government treatment as between comparable violators, as
well as between complying and noncoraplying parties.
In exercising its enforcement oversight responsibilities, the USEPA
must evaluate whether an administering agency has used an appropriate
enforcement response to .a .given noncompliance situation. "The
Enforcement Response Guide .will be used as-a general guide in
making that assessment, keeping in mind the enforcement responses
available to the administering agency, the results that are achieved,
and the need to achieve an acceptable level of national consistency.
This guide has been developed for the internal use of USEPA and is
not intended to create legal rights or obligations, or to limit the
enforcement discretion of any of the administering agencies.
121
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ENFORCEMENT RESPONSE
SAMPLING, MONITORING AND RETORTING
NONOOMPLIANCE CIRCUMSTANCES
Failure to sanple, monitor
or report (routine reports,
EMRs)
Failure to sample, monitor
or report (one—time
requirement)
Failure to notify (compliance
or ncncompliance with
schedule requirement)
Failure to sample, monitor,
report or notify
Failure to notify of
effluent limit violation
Failure to notify of
effluent limit violation
Failure to notify of
effluent limit violation
Minor sampling, monitoring
or reporting deficiencies
Minor sampling, monitoring
or reporting deficiencies
Major or gross sampling,
monitoring or reporting.
deficiencies
Major or gross reporting
Reporting false information
Isolated or infrequent.
Isolated or infrequent.
Isolated or infrequent.
Permittee does not
respond, to letters, does
not follow through on
verbal or written
agreement, or frequent
violation*
Known environm
damage results.
ntal
Isolated or infrequent.
No known effects.
Frequent or continued
violation.
Isolated or infrequent.
Continuation.
or infrequent.
Continuation.
Any instance.
RANGE OF RESPCKSE1'
(See Detinitions)
2Phone call, written
letter of isolation
(LOV). Report to
be submitted
immediately.
Administrative
Order (AO) if no
response is received.
LOV. Reports to
be submitted
immediately.
2phone call or LOV.
Reports to be sub-
mitted immediately.
AO or judicial
action if no response
is received. Request
for criminal investi-
gation.
AO or judicial
action.
Phone call or LOV.
LOV or AO.
Phone call or LT
Corrections to fct
made on next submittai:
AO if continued.
LOV or AO.
Corrections to be
made on the next
sutnittal.
AO or judicial
action.
Judicial action.
Request for
investigation
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ENFORCEMENT -RESPONSE
PERMIT COMPLIANCE SCHEDUT^ (Construction phases or planning)3
NONCOMPLIANCE
Missed Interim Date
Missed Interim Date
Missed Interim Date
Missed Final Date4
Missed Final Date4
Major or gross
deficiencies
Failure to install
monitoring equipment
CIRCUMSTANCES
Will not cause late final date
or other interim dates.
Will result.in other missed
; interim dates. Violation for
.good or valid cause.
Will result in other missed
interim dates. No good or
valid cause.
Violation due to force
majeure (Strike, act of
God, etc.)
90 days or more outstanding.
'Failure or refusal to comply
without good or valid cause.
Continuation.
.Continuation.
AD COMPLIANCE SCHEDULES (Construction phases, MCP or CCP)
Missed Deadline
Missed Deadline
Reporting False
Information
Contained in AD previously
issued (justifiable delay).
Contained in AD-previously
issued and no justifiable
'reason for delay.
, Any instance.
RANGE OF RESPONSE
LOV.
.LOV or-AD.
,UN, AD.-or; judicial
-action.
Contact permittee and
require documentation
of good or valid cause.
AD or
action.
AD or judicial action.
Request for criminal
investigation.
AD to begin monitoring
(using outside con-
tracts, if necessary)
and install equipment.
AD.5
Judicial-action.
Request for criminal
investigation.
'Judicial action. Request
for criminal investiga-
tion.
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ENFORCEMENT RESPONSE
PLKMIT EFFLUEOT LIMTIS
NCtJOCMPLlftNCE
Exceeding Final Limits
Excepting Final Limits
Exceeding Final Limits
Interim Limits
CIRCUMSTANCES
Infrequent or isolated
minor violation.
Infrequent or isolated
major violations of a
single effluent limit.
Frequent violations of
effluent limits.
Results in Known environ-
mental damage.
Exceeding Interim Limits Without known damage.
Exceeding Interim Limits
(outside permittee's
control* e.g. force
majeure)
Exceeding Interim Limits
(outside permittee's
control* e.g.* force
majeure)
Discharge without a
permit
Discharge without a
permit
Discharge without a
permit
No harmful effects
known.
With substantial
environmental damage.
One time without known
environmental damage.'
One time which results
in environmental damage
or <»^iii ^TTii'TT violation*
Continuing violation with
known environmental damage.
RANGE OF RESPONSE
LOV.
LOV, AD (judicial
action if environmental
harm resulted).
AO or judicial
action.
AO or judicial action.
AO or judicial
action.
AO.
-O or judicial action.
AO.
AO or judicial action.
Request for criminal
investigation.
Judicial action. Request '
for criminal investigation.
ADMINISTRATIVE ORDER INTERIM LIMITS
Exceeding Interim Infrequent violation.
Limits contained
in AD
Exceeding Interim
Limits contained
in AO
Frequent violations
within the control of the
permittee or environmental
crown.
A0.5
Judicial action.
\?a
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•.ENFORCEMENT RESPONSE
STATO/EPA COMPLIANCE INSPECTION
NCKCCMPLIANCE
Minor violation of
analytical procedures
Major violation of
analytical procedures
Major violation of
analytical procedures
Minor violation of
permit condition
Minor violation of
permit
Major violation of
permit condition
Non-submittal of
EMR/CA data
Non-submttal of
DMR/QA data
INDUSTRIAL USEHS
Ncfj-sutndttal of BMR
or periodic reports
Violation of
categorical, or local
limits
Violation of
Leal.
Inral
limits
Violation of categorical
standards
Gross violation or
pass-through
CIRCUMSTANCES
Any instance.
No evidence of intent.
Evidence of negligence
or; intent.
Mo evidence of negligence
or intent.
Evidence of negligence
or intent.
Evidence of negligence
or intent.
Isolated violation.
Continued violation.
Late.
Infrequent.
Consistent violations.
No BMR or treatment
installed.
Any
ision.
RANGE OF RESPONSE
LCV.
LCV or'AD.
AD or judicial
:actian (possible
criminal action).
LCV. Imnediate
correction required.
AD or judicial
action (possible
criminal action).
AD or judicial
action (possible
• criminal action).
LCV or AD.
Judicial action.
LCV or AD.
LLCV or AD.
AD or >viUrin1 action.
AD or
action.
Judicial action.
Request for criminal
investigation.
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MUNICIPALS (POIW3)
NONOOMPLIANCE
Non-submittal of
annual reports
Municipal non-
enforcement of
general, local or
categorical limits
ENFORCEMENT RESPONSE
PRETREATMENT (CONTINUED)
CIRCUMSTANCES
First occurrence.
First time or infrequent.
RANGE OF RESPONSE
LOV.
LOV or AO.
..—licipal
implementation
of pretreadnent
program (e.g, failure
to enforce any limits,
reporting require**
ments, etc.)
Continued non-
implementation.
AO or Judicial Action
(Judicial Action may
be preceded by notice
to POTW under Section
309(f)).
Failure to submit
an approvable
pretreatmant
Failure to submit
an approvable
pretreaUuttnt
program.
First occuLTence.
Continued.
Judicial action.
LEVELS OF RESPONSE6
There are three levels of response to all violations. For any violation the
administering agency must review the violation and determine the appropriate
response. For sons violations, the response may be no action necessary at this
time. The informal enforcement response can be an inspection, phone call, a
violation letter, or a Federal Notice of Violation to the permittee with a copy
to the administering State agency. The violation letter can be limited to a
notification of the violation or to requiring certain steps to be taken within
specific time frames. The formal enforcement response must be one of the
following:
1. An Administrative Order or State equivalent action; or
2. A .judicial referral to the State Attorney General or to the Department of
Justice.
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FOOTNOTES
Notice of Violation (NOV) is not specifically identified as a possible
response in the "Range of Response" /column. In, fact » the .use Of an NOV by EPA
as an initial response is an appropriate ontion where the violation is in a
State with an approved NPDES program. However, it trust be recognized that an
NOV does not qualify as a formal enforcement action.
^Phone calls should he noted in the record and be followed up with warning
letters if reports are not received within the specified time frame.
the compliance* schedule is established by a -consent decree or other
iudicial order , :the violation should be brought to the -attention of the program
manager and legal counsel to determine whether the court should be notified.
The permitting authority may not excuse or allow a violation of a consent
decree or other court order without court approval.
enforcement response chosen for Missed Final '-Dates must be consistent
with the provisions of the National Municipal Policy.
Clean Water Act does not authorize the issuance of an AO for a violation
of a previously issued AO. Any successive AO issued must be basod upon the
underlying violations of the Act contained in the previous AO and/or upon
subsequent violations of the Act.
amendments to the Clean Water Act proposed by both the House of Representatives
and the Senate would give EPA authority to inpose administrative penalties. If
the final version includes this authority, the ERG will have to be modified to
establish criteria for determining which violations should be addressed through
a penalty action.
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NPDBS VIOLATION SUMMARY
NPDES No.
I ] Major
( ] Minor
ATTACHMENT C
[ ) Municipal
[ ] Non-Nun.
[ 1 Federal
I ) State
NAME & LOCATION
DATE OP
VIOLATION
MO/DA/YR
TYPE OF VIOLATION
AGENCY RESPONSES
DATE OP
RESPONSES
MO/DA/YR
PERSON(S)
INITIATING
RESPONSE
DUE DATE
MO/DA/YR
STATUS
REVIEWER
NAME
AND TITLE
REMARKS
(Additional information may be entered across the shoot—between
citations of pennit violations—to meet local ancillary tracking
requirements. Any other pertinent information, such as the
rationale for unusual responses/ may also be documented in this
manner.)
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-APPENDIX I
LIST OF GUIDANCE AND SUPPORTING DOCUMENTS
1. National Guidance for Oversight of NPDES Programs, PY 1986
(June 23, 1985).
2. Office of Water PY 1986-1987 ^Operatrng .Guidance rand Strategicc
Planning and Management System (February, -1985).
3. NPDES Inspection Strategy and-Guidance for "Preparing Annual
State/EPA Compliance^Inspection Plans (April 16,-i9J85).
4. National Municipal Policy (January 23, 1984).
5. Regional and Stat«% Guidance on the National Municipal Policy
(April 1.7, 1984).
6. Municipal Enforcement Guidance (Issued by Office of Enforcement
and Compliance Monitoring; October, 1984).
7. Recommended Format for Clean Water.Act Section -309 Administrative
Orders (July 30, 1985)
8. Pretreatment Program Guidance to POTWs for Enforcement of
Industrial Categorical Standards (November 5, 1984)
9. NPDES Civil Penalty Policy (February -11,, 1986).
10. Permit Compliance System Policy (October 31, 1985).
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APPENDIX II
ABBREVIATIONS FREQUENTLY USED
AAW - Assistant Administrator for Water
ADA - Administering Agency (EPA and NPDES States)
ADP - Automated Data Processing
AO - Administrative Order
AT - Advanced Treatment •
AWT - Advanced Waste Treatment
BAT - Best Available Technology
BCT - Best Conventional Technology
BCCT - Best Conventional Control Technology
BIO - Compliance Biomonitoring Inspection (see CBI)
BODs - 5 Day Biochemical Oxygen Demand
BEJ - Best Professional Judgment
BPT - Best Practicable Treatment
CBI - Confidential Business Information or Compliance Biomonitoring
Inspection (See BIO)
CEI - Compliance Evaluation Inspection
CFR - Code of Federal Regulations
CG - Construction Grant
CS - Construction Schedule
CSI - Compliance Sampling Inspection
CWA - Clean Water Act
DI (DIA or DIAG) - Diagnostic Inspection
DMR - Discharge Monitoring Report
DOJ - Department of Justice (US)
ELG - Effluent ^imitation Guidelines
EMS - Enforcement Management System
ERG - Enforcement Response Guide
-------
F - Final Limits
FEL - Final Effluent Limits
FFCA - Federal Facility Compliance Agreement
FR -Federal Register
GREAT - General Record of .Enforcement Actions'.Taken
IAG - Interagency Agreement
1C— In Compliance
IEL (INT) - Interim Effluent Limits
IL - Interim Limits
LOV - Letter of Violation
MOA - Memorandum of Agreement
NC - Noncompliance
NCR - Noncompliance Report
NEIC - National Enforcement Investigations Center
NOV - Notice of Violation
NPDES - National Pollutant Discharge Elimination System
OECM - Office of Enforcement and Compliance Monitoring
OGC - Office of General Counsel
OIG•- Office of .Inspector General
O&M - Operationsiand Maintenance/Management
OW - Office of Water
OWAS (OWEG) - Guide to the Office of Water Accountability System
and Mid-Year Evaluations
OWEP - Office of Water Enforcement and Permits
ORD - Office of Research and Development
PAI - Performance Audit Inspection
PCS - Permit Compliance System
POTW — Publicly Owned treatment Works
PQR - Permit Quality Review
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- 3 -
PWS - Public Water Systems
QA - Quality Assurance
QNCR - Quarterly Noncompliance Report
RE - Resolved
RI - Reconnaisance Inspection
SCO - Show Cause Order
SEA - State-EPA Agreement or State Enforcement Agreement
SNAP - Significant Noncompliance Action Program
SNC - Significant Noncompliance
SPCC - Spill Prevention Control and Countermeasures
SPNS - Strategic Planning and Management System
TOX (TOX SAMP) - Toxics Sampling Inspection (see XSI)
TPP - Temporary Pollution Permit
USEPA - United States Environmental Protection Agency
VRAC - Violation Review Action Criteria
WENDB - Water Enforcement National Data Base
WQN - Water Quality Management
WWTF - Wastewater Treatment Facility
WWTP - Wastewater Treatment Plant
XSI - Toxics Sampling Inspection (see TOX)
$ - Facility Contructed with P.L. 92-500 Grant Funds
-------
-Definitions for -the ^Enforcement-Management ^System*
1. Actionable: A violation by the NPDE5 permittee or other facility
subject to regulation under the Clean Water Act (CWA), and/or
the permit, which gives rise to a possible enforcement-action
by the NPDES -State, USEPA, and/or any person or entity having
standing, whether or not such .action is taken.
2. Administrative Order (AO): A document /issued -by EPA under
Section 309(a)(3) of the CWA which contains findings of fact
determined through a-unilateral, administrative process (without
required notice or opportunity for hearing) and which demands
that the permittee achieve compliance with the CWA (5S301, 302,
306, 308, 318, 405 or with conditions of a permit which imple-
ments one of those sections, or an equivalent State action
issued under State authority. The document contains an order
to cease the violation immediately, or a specific timetable for
compliance.
3. Dischargers (Municipal, Industrial, Major and Minor):
(A) Municipal Major: A municipal wastewater treatment facility
which^discharges a flow.of cone -million^gallons^or more
per day, or which serves a population of ten thousand
or more. Any municipal facility not-meeting .this
definition is classified as minor.
(B) Industrial Major: An industrial discharger's permit is
analyzed for specific discharge characteristics which
•are tied to a weighted point'total classification
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- 2 -
system. Points are assigned on the basis of the follow!
five effluent parameters: toxic pollutant potential;
flow/wastewater type; conventional pollutant load;
public health impact; and water quality factors. The
point total is added. If the total is eighty points or
higher the discharger is classified as major. Those
dischargers which have less than.eighty points are
classified as minor.
(C) Discretionary Majors: USEPA Regions are permitted to
assess up to five hundred points at their discretion,
thereby placing some dischargers in the major classifi-
cation which would not have otherwise been there. This
provides the Regions the opportunity to classify certaij
dischargers with local problems as majors, even though
they would not be under a fixed, inflexible national
scheme. Each Region's discretion is limited to 20
discretionary additions plus five percent of their
total major permits.
4. Formal Enforcement Action: An action that requires actions to
achieve compliance, specifies a timetable, contains consequences
for noncompliance that are independently enforceable without
having to prove the original violation, and subjects the person
to adverse legal consequences for noncompliance.
5. Letter of Violation (LOV): A warning letter issued by either an
NPDES State or USEPA to a permittee under the NPDES Program
informing the permittee that it is in violation of the CWA,
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- 3 -
implementing regulations, and/or the permit, and which indicates
the oossibility of escalated enforcement action if the violation
is not corrected in a timely manner.
6. "Notice of Violation (NOV): A formally-written document .issued
by USEPA under $309(a)(l) to-an approved State with a copy ~to
the permittee informing them of the permittee's violation ;.of
•a State-issued NPDES permit or a State-issued -;S40.4 permit. TThe
NOV specifically describes the violation and describes the
action required by the State to avoid further action by USEPA.
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1.5.
"General Enforcement Policy Compendium", updated December, 1988. Table of
Contents and Topical Index Only. Contains policies numbered GM-l thru
GM-74. Copies of individual policies may be obtained from Legal
Enforcement Policy Branch, Office of Enforcement Policy, OE (LE-130-A).
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC tOMO
3 MAR 1983
ornec or
BNFOMCCMBNT COUNBBU
MEMORANDUM
SUBJECT: General Enforcement Policy Compendium -
Transmittal Memo
PROM: Robert M. Perry
Associate Admininstrator and GeneadRT Counsel
TO: Associate Administrator for Policy
and Resource Management
Assistant Administrators
Regional Administrators
Attached is the first edition of the General Enforcement
Policy Compendium. This transmittal includes a chronological
table of contents and a topical index of the currently effective
general enforcement policies and guidance documents. Copies of
the documents are tabbed and arranged in chronological order.
All of the AAs have had the opportunity to review a draft of
this Compendium and all have concurred in this edition. Therefore,
this Compendium contains all general enforcement policies and
guidance documents, except those stated as part of a promulgated
Agency regulation. Documents in effect concerning the daily opera-
tion of the criminal enforcement program have not been included in
this Compendium but are available to necessary Agency personnel.
Subject to these exceptions this Compendium contains those enforce-
ment policies affecting all media which are in effect and which
should be followed by Agency personnel. Any other general enforce-
ment policies (as distinguished from media-specific enforcement
policies) are hereby revoked. Media-specific enforcement policy
compendiums will be issued as sections of the forthcoming Enforcement/
Compliance Guidance Manuals.
As new policies are developed, OLEC will transmit them
to you for inclusion in the Compendium and update the table of
contents and the index.
If you have any questions about matters contained in
this memorandum, please contact Janet Tungland at FTS-426-7503.
Attachment
cc: Regional Counsels
Associate Enforcement Counsels
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TABLE OF CONTENTS - GENERAL ENFORCEMENT POLICY COMPENDIUM
TITLE OF
DATE OF
.Visitor's Releases and Hold
Harmless Agreements as a Condition
to Entry to EPA Employees on
Industrial Facilities
Professional Obligations of
Government Attorneys
Memorandum of Understanding Between
the Department of Justice and the
Environmental Protection Agency
"Ex Parte" Contacts in EPA
RulemaJcing
Conduct of Inspections After the
Barlow's Decision
Contacts with Defendants and
Potential Defendants in
Enforcement Litigation
"Ex Parte" Rules Covering Communica-
tions Which are the Subject of Formal
Adjudicatory Hearings
Quant i co Guidelines for Participation
in Grand Jury Investigations
Agency Guidelines for Participation
in Grand Jury Investigations
Reorganization of the Office of
Regional Counsel (includes
Administrator's Memorandum of
September 15, 1981)
Coordination of Policy Development
and Review
11/08/72
4/19/76
6/15/77
8/04/77
4/11/79
10/07/81
12/10/81
4/08/82
4/30/82
5/07/82
Deleted
11/88
TAB
GM - 1
GM - 2
GM - 3
GM - 4
GM - 5
GM - 6
GM - 7
GM - 8
GM - 9
GM - 10
GM - 11
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TABLE OF CONTENTS
PAGE 2
TITLE OF
DATE OF
General Operating Procedures for
EPA's Civil Enforcement Program
Case Referrals for Civil Litigation
Criminal Enforcement Priorities
for the Environmental Protection
Agency
Functions and General Operating
Procedures for the criminal
Enforcement Program
Regional counsel Reporting
Relationship
Guidance for Drafting* Judicial
Consent Decrees
Implementation of Direct Referrals
for Civil Cases
Consent Decree Tracking Guidance
Guidance on Evidence Audit of
Case Files
Policy on Civil Penalties
A Framework for Statute-Specific
Approaches to Penalty Assessments
Guidance Concerning Compliance with
the JencJcs Act
Working Principles L .erlying EPA's
National Compliance/Enforcement
Programs
Federal Facilities Compliance
(Previous version dated 1/4/84)
7/06/82
9/07/82
10/12/82
1/07/85
GM - 12
GM
GM
13
14
GM -'15
8/03/83
10/19/83
11/28/83
12/16 ;3
12/30/83
2/16/84
2/16/84
11/21/83
11/22/83
GM -
GM -
GM -
GM -
GM -
GM -
GM -
GM -
GM -
16
17
18
19
20
21
22
23
24
11/08/88
GM - 25
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TABLE OF CONTENTS
PAGE 3
TITLE OF
DOCUMFMT
Headquarters Review and Tracking
of Civil Referrals
Guidelines for Enforcing Federal
District Court Orders
Liability of Corporate Shareholders
and Successor Corporations for
Abandoned Sites Under CERCLA
Guidance on Counting and Crediting
Civil Judicial Referrals
Policy and Procedures on Parallel
Proceedings at the Environmental
Protection Agency
Guidance for Implementing EPA's *
Contractor Listing Authority
Implementation of Mandatory
Contractor Listing
Guidance for Calculating the
Economic Benefit of Noncompliance
for a Civil Penalty Assessment
Policy Against "No Action"
Assurances
Implementing Nationally Managed or
Coordinated Enforcement Actions:
Addendum to Policy Framework for
State/EPA Enforcement Agreements
The Use of Administrative Discovery
Devices in the Development of Cases
Assigned to the Office of Criminal
Investigations
The Role of EPA Supervisors
During Parallel Proceedings
DATS OF
3/08/84
4/18/84
6/13/84
6/15/84
1/23/84
7/18/84
8/08/84
11/05/84
11/16/84
1/04/85
^fjtt
GM -
GM -
GM -
GM -
GM -
GM -
GM -
GM -
GM -
GM -
*
26
27
28
29
30
31
32
33
34
35
2/16/84
3/12/85
GM - 36
GM - 37
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TABUS OF CONTENTS
PAGE 4
TITLE OF
DQdUMKN'i?
Remittance of Fines and Civil
Penalties
Enforcement Settlement
Negotiations
Revised Regional Referral
Package Cover Letter and
Data Sheet
Implementing the State/
Federal Partnership in
Enforcement: State/Federal
Enforcement "Agreements"
(Previous version dated 6/26/84)
Form of Settlement of Civil
Judicial Cases
Enforcement Document Release
'Guidelines
Settlement of Enforcement
Actions Using Alternative
Dispute Resolution Techniques
Division of Penalties with
State and Local Governments
Policy on Publicizing Enforce-
ment Activities
Addendum
A Summary of OECM's Role in the
Agency's Regulatory Review
Process
Model Litigation Report Outline
and Guidance
Implementation of Guidance on
Parallel Proceedings
DATE OF
4/15/85
5/22/85
5/30/85
8/25/86
GM -
- 38
- 39
40
- 41
7/24/84
9/16/85.
10/02/85
11/21/85
11/21/85
8/04/87
1/27/86
1/30/86
2/03/86
GM -
GM -
GM -
GM -
GM -
GM -
GM -
GM -
42
43
44
45
46
47
43
49
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TABLE OF CONTENTS
PAGE 5
TITLE OF DATE OF
DOCUMENT DOCUMENT
Expanded Civil Judicial Referral 8/28/86
Procedures '
Guidance on Calculating After Tax 10/28/86
Net Present Value of Alternative
Payments
EPA Policy on the Inclusion of 11/14/86
Environmental Auditing Provisions
in Enforcement Settlements
Guidance on Implementing the 11/26/86
Discretionary Contractor Listing
Program
Referral Letters for Forwarding 11/12/86
Judicial Referrals and Consent
Decrees to the Department of Justice
Media Relations on Matters Pertaining 12/12/86
to EPA's Criminal Enforcement Program
Guidance on Determining a Violation's 12/16/86
Ability to Pay a Civil Penalty
Guidance for the FY 1989 State/EPA 6/20/88
Enforcement Agreements Process
(Previous version dated 4/31/87)
Issuance of Enforcement Considerations 8/15/85
for Drafting and Reviewing Regulations
and Guidelines for Developing New or
Revised Compliance and Enforcement
Strategies
The Regulatory Development Process: 2/06/87
Change in Steering Committee Emphasis
and OECM Implementation
Procedures and Responsibilities for 3/10/87
Updating and Maintaining the Enforce-
ment Docket
TAB
GM - 50
GM - 51
GM - 52
GM - 53
GM - 54
GM - 55
GM - 56
GM - 57
GM - 58
GM - 59
GM - 60
Enforcement Docket Maintenance
4/08/88
GM - 61
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TABLE OF CONTENTS
PAGE 6
TITLE OF
TWTTMIPNT
DATE OF
DOCUMENT
Final Guidance on Use of Alternative 8/14/87
Dispute Resolution Techniques in
Enforcement Actions
Policy on Invoking Section 9 of the 8/20/87
EPA/DOJ Memorandum of Understanding
Processing of Consent Decrees
Processing of Indirect Referrals
Assertion of the Deliberative Process
Privilege (2 documents):
A. Guidance for the Assertion of
Deliverative Process Privilege
B. Change in Review Process for
Concurrence in Litigation
Procedures for Assessing Stipulated
Penalties .
Procedures for Modifying Judicial
Decrees
Expansion of Direct Referral of Cases
to the Department of Justice
Delegation of Concurrence and Signa- 1/14/88
ture of Authority
Case Management Plans 3/11/38
Assuring Timely Filing and Prosecu- 4/08/88
tion of Civil Judicial Actions
*
Process for Conducting Pre-Referral 4/13/88
Settlement Negotiations on Civil
Judicial Enforcement Cases
Guidance on Certification of 6/25/88
Compliance vith Enforcement
Agreements
GM - 62
GM - 63
9/14/87
9/29/87
10/30/84
9/30/87
1/11/88
1/11/88
1/14/88
GM -
GM -
GM -
GM -
GM -
GM -
64
65
66
67
68
69
GM. - 70
GM - 71
GM - 72
GM - 73
GM - 74
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•TOPICAL TCTTB3C
PfT .TffT —
Manorandun of understanding Between the Department
of justice and the Environmental Protection Agency ..... (31-3
Quantico Guidelines for Enforcement Litigation ......... GM - 8
Reorganization of the Office of Regional Counsel ....... GM - 10
Coordination of Policy Development and Review .......... GM - 11
(Deleted 11/88)
General Operating Procedures for EPA's Civil
Enforcement Program. ....... ........ ..................... GM — 12
Case Referrals for Civil Litigation .................... GM - 13
Regional Counsel Reporting Relationship ................ GM - 16
Policy on Civil Penalties ............................. . GM - 21
A Framework for Statute-Specific
Approaches to Penalty Assessments ...................... GM- 22
Working Principles Underlying EPA's .
National Compliance/Enforcement Programs . .............. GM - 24
Federal Facilities Compliance Strategy ...... . ........... GM - 25
Liability of Corporate Shareholders
and Successor Corporations for Abandoned
Sites Under CERCIA ..................................... GM - 28
Implementation of Mandatory Contractor
Listing .............................. . . ................ GM - 31
Guidance for Calculating the Economic
Benefit of NOnccmpliance for a Civil
Penalty Assessment ..................................... GM - 33
Implementing Nationally Managed or Coordinated
Enforcement Actions: Addendum to Policy Framework
for State/EPA Enforcement Agreements ................... GM -»• 35
Remittance of Fines and Civil Penalties ................ GM - 38
Implementing the State/Federal Partnership in
Enforcement: State/Federal Enforcement "Agreements" ... GM - 41
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TOPICAL INDEX
PAGE 2
Enforcement Document Release Guidelines ... .GM - 43
Policy on Publicizing Enforcement
Activities GM - 46
A Summary of OECM's Role in the Agency's
Regulatory Review Process GM - 47
Guidance on Calculating After Tax Net
Present Value of Alternative Payments GM - 51
•
Guidance on Implementing the Discretionary
Contractor Listing Program GM- 53
Media Relations on Matters Pertaining to EPA's
Criminal Enforcement Program GM - 55
Guidance on Determining a Violator's Ability
to Pay a Civil Penalty GM - 56
Guidance for the FY 1988 State/EPA Enforcement
Agreements Process GM - 57
Issuance of Enforcement Consideration for
Drafting and Reviewing Regulations and .'
Guidelines for Developing Mew or Revised
Compliance and Enforcement Strategies GM - 58
The Regulatory Development Process: Change in
Steering Committee Emphasis and OECM Implementa-
tion . GM - 59
Procedures and Responsibilities for Updating
and Maintaining the Enforcement Docket . GM - 60
Enforcement Docket Maintenance .. GM - 61
Procedures for Assessing Stipulated Penalties . GM - 67
Delegation of Concurrence and Signature of
Authority 1 GM - 70
Attorney Conduct
*
Professional Obligations of Government Attorneys ....... GM - 2
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TOPICAL INDEX
PAGE 3
Case Development/Litigation •
Memorandum of Understanding Between the Department
of Justice and the Environmental Protection Agency GM - 3
Quantico Guidelines for Enforcement Litigation GM - 8
Case Referrals for Civil Litigation GM - 14
Guidance for Drafting Judicial Consent Decrees- GM - 17
Implementation of Direct Referrals for Civil Cases GM - 18
Guidance on Evidence Audit of Case Files GM - 20
Guidelines for Enforcing Federal District
Court Orders GM - 27
Guidance on Counting and Crediting
Civil Judicial Referrals GM - 29
Policy Against "No" Action" Assurances GM - 34
Revised Regional Referral Package Cover
Letter and Data Sheet GM - 40
Form of Settlement of Civil Judicial Cases GM - 42
s
Division of Penalties with State and
Local Governments .. GM - 45
Model Litigation Report Outline Guidance GM - 48
Expanded Civil Judicial Referral
Procedures GM - 54
Civil Judicial Referral
Procedures GM - 50
Referral Letters for Forwarding Judicial
Referrals and Consent Decrees to the Department
of Justice GM - 54
Final Guidance on Use of Alternative Dispute
Resolution Techniques in Enforcement Actions GM - 62
Policy on Invoking Section 9 of the EPA/DOJ
Memorandum of Understanding GM - 63
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TOPICAL INDEX
PAGE 4
• •
Processing of Consent Decrees CM - 64
Processing of Indirect Referrals — GM - 65
Assertion of the Deliberative Process Privilege
(2 document:)
A. Guidance for the Assertion of Deli-
berative Process Privilege GM - 66
B. Change in Review Process for Concur-
rence in'Litigation
Procedures for Modifying Judicial Decrees GM - 68
Expansion of Direct Referral of Cases to
the Department of Justice . GM - 69
Case Management Plans GM - 71
Assuring Timely Filing and Prosecution of
Civil Judicial Actions GM - 72
Process for Conducting Pre-Referral Settlement
Negotiations on Civil Judicial Enforcement Cases .; GM - 73
Guidance on Certification of Compliance with
Enforcement Agreements GM - 74
s
rnsoec-tions
Visitor's Releases and Hold Harmless Agreements as a
Condition to Entry to EPA Employees on Industrial
Facilities •. GM - 1
Conduct of Inspections After the Barlow's Decision GM - S
Rules Regarding Outaide Contacts
"Ex Parte" Contacts in EPA RulemaJcing GM - 4
Contacts With Defendants and Potential Defendants
Enforcement Litigation GM - 6
"Ex Parte" Rules Covering Communications On Issues
Which are the Subject of Formal Adjudicator
Hearings GM - 7
150
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TOPICAL INDEX
PAGE 5
Monitoring
Consent Decree Tracking Guidance ...... . ................ GM - 19
Headquarters Review and Tracking of
Civil Referrals ................ .' ........................ GM - 26
Negotiation and Settlement
Guidance for Drafting Judicial Consent Decrees ......... GM - 17
Enforcement Settlement Negotiations .................... GM - 39
Settlement of Enforcement Actions Using
Alternative Dispute Resolution Techniques .............. GM - 44
GENERAL ENFnPPTTMFNT POLICY - CRIMINAL
Criminal Enforcement Priorities for the Environmental
Protection Agency ............... ; ..... ................. GM - 14
Functions and General Operating Procedures for the
Criminal Enforcement Program .............. ............. GM - 15
Guidance Concerning Compliance with the
Jencks Act . ...................... . ..................... GM - 23
Policy and Procedures on Parallel Proceedings
at the Environmental Protection Agency . .• ............... GM - 30
The Role of EPA Supervisors During Parallel
Proceedings ................................. . .......... GM - 37
Implementation of Guidance on Parallel
Proceedings ............................................ GM - 49
I nves t i gat i ons,
Agency guidelines for Participation in Grand Jury
Investigation's .................................. ....... GM - 9
The Use of Administrative Discovery Devices in the
Development of Cases Assigned to the Office of
Criminal Investigations ............. .......... ......... GM - 36
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1.7
"GUIDANCE FOR OVERSIGHT OF NPDES PROGRAMS", dated May 1987.
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1*54
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NATIONAL GUIDANCE
FOR
OVERSIGHT OF NPDES PROGRAMS
May 1987
BACKGROUND
The Clean Water Act (CWA) authorizes EPA and approved States
to administer the National Pollutant Discharge Elimination System
(NPDES) Program, which is the basic regulatory mechanism for ensur-
ing that dischargers meet the requirements of the CWA. Currently
about three quarters of the States are approved to administer the
NPDES program, more than half of which also are approved to adminis-
ter the pretreatment program. EPA retains the lead responsibility
in the balance of the States, but shares many of the implementation
functions of the NPDES and pretreatment programs in a partnership
arrangement with State agencies.
EPA has continuing overall responsibility for implementation
or oversight of the NPDES program in all States—approved or not
approved--in order to promote the achievement of national program
goals and objectives, to ensure adherence to Federal and State
statutory and regulatory requirements implementing the CWA, and to
maintain reasonable national consistency. This guidance provides a
set of criteria for evaluating and overseeing NPDES programs; the
criteria also provide a basis for Regions and States to negotiate
annual agreements and/or work plans. The document:
* Defines the major elements of a sound NPDES program;
* Outlines high priority achievements for NPDES and pretreat-
ment programs;
* Clarifies how the Regions and States should translate speci-
fic program goals and performance expectations into annual
grant agreements and/or work plans; and
* Defines the respective roles and responsibilities of the
EPA Regions and States in carrying out the NPDES program,
as well as areas where there is a need for further definiti
of roles in the individual State agreements.
ion
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PURPOSE AND SCOPE
:~i3 jjidar.ce is 3 prog ran- 3 .>.»-;.?.: M;;T?'ir for 'use
conjunction with the Agency's "Revised Policy Framework f
Federal ^.-iforcement Agreements" (issued August 25, 1936 >.
"Policy Framework" covers bot'i c'l-i process and. tne substance jf t
Regional/State agreements, and, unless otherwise specified in -.11
document, the national. policy will apoly.
This guidance estaolishes cr:t-?ria for trve NPDES program
including per-nit issuance and reissuance, co-ioliance monitoring,
enforcement, and oretrea tment . I", is intended to oe used is .\
framework, with the Regions and the States supplynj *. i > !-»-..ii Is
for their individual agreements and/or work plans oased 3n current
Federal regulations, national ?•>'. ;/ 1-1! ;ii Mnc»? l^cunents , and
State priorities. In reviewing, and, where necessary, updating
oversight agreements, the Regions and States should also use the
Annual Agency Operating Guidance, the Annual Strategic Planning
and Management System, and the Annual Office of Water Evaluation
Guide, which sec forth national priorities and performance expecta
tions. To the extent possible, all requirements for plans and
strategies cited in this guidance should be consolidated into
existing work plans and/or State-EPA agreements.
Fully-functioning 'l?")^ ir>.jr-n<5 a r# required to permit all
dischargers, both -najor and- minor; and to conduct appropriate -
compliance assessment and enforcement activities for all permittees
This guidance empnas i z^-s reissuing major industrial an1-»nce also
places priority on rapid response to instances of significant
noncompl iance, especially >\> -\t~ n- lischargers. As resources
allow, administering agencies* should also address minor discharger
of concern and other instances of noncompl iance . En the longer-ter
the con:-\>t* in.j
oversight program: permitting, compliance monitor-ing, and enforce^-??
response. There is .-ilso a need to ensure the ongoing integrity •>'.
state NPDES and pretreatment pr^gra.is, *s well as their ability •:
ao.iieve the goa.ls and objectives oc the CWA.
The term "administering a<;ene/" re.f-srs to £?\ 3aji:;n.3 an
approved States tnat administer tne NPDES/pretreatment o
-------
The Agency has developed a general set of oversight criteria
for ail compliance and enforcement programs . 2 This program-specifi:
••focjnent provides guidance on how to use these criteria, as well as
additional criteria related to permit issuance and the pretreatmenc
program/ to evaluate and oversee the operational elements of the
NPDES program and to negotiate individual agreements and/or work
plans with each State. Such agreements should take into account the
unique circumstances, legal authorities and resources of each State
NPDES program.
I. Permitting
The CWA ($4.02) calls for EPA or approved States to issue
permits for the discharge of any pollutant or combination of pollu-
tants. These permits are enforceable documents that.contain specifi
discharge limitations, as well as conditions on data and information
collection, reporting, and other requirements that the administering
agency deems appropriate. The overall integrity of the NPDES
program is, therefore, inextricably linked to the quality and
timeliness of the permits that are issued by EPA and the NPDES
States.
Evaluation and oversight of permit programs should be based on
the following criteria:
a Clear identification of the regulated community as evidenced
by the existence and use of;
Established procedures for maintaining a complete,
accurate, and up-to-date automated data system that
includes all sources that are covered by or have applied
for NPDES permits; The administering agency should
maintain a current inventory of all permit holders and
applicants. States should enter current permit data
into the Permit Compliance System (PCS, the automated
NPDES data base) in a timely manner consistent with the
procedures in the Enforcement Management System (EMS).
where a State is not a direct user of PCS and does not
have an automated system that is compatible with PCS,
it should supply the data to the Region in a form that
facilitates EPA's entry of the data into PCS.3 The
administering agency should also maintain up-to-date
files on individual permittees, and should have a process
for identifying dischargers that are required to apply
for but have not applied for permits and for following
through as necessary in such cases.
Permit data that are complete, accurate and up-to-date;
The Region is responsible for conducting periodic
2. See "Revised Policy Framework for State/EPA Enforcement
•Agreements," August 2.5, 1986'.
3. Wherever data entry to and/or use of PCS is mentioned" in this
document, it is expected that, where, a. State is not a direct
user of PCS and does not have an automated system that is
compatible with PCS, it should supply the data to the Region ...
a form that facilitates EPA's entry of the data into PCS. 4.C\
i n
-------
audits co verify tr.at each approved State is maincai.n-
:r.~ c-rrent perr?; v.f : les ' ;.-.cl -d ir.g an adequate admini
trative record) ar.d ^ata :.n PCS consistent with ; —
prescrioed procedures; me Region should also coj :t
periodic audits in cases where an unapproved State" s
writing draft permits in a partnership arrangement wit:
the Region.
Development and ei.rely issuance of high-quality permits anc
permit mod if i cat: zr.s as evidenced sy -me existence and use
oTT"'"'
An up-to-date permit strategy and issuance list oy Stac
that guides permit issuance/modification consistent
with national priorities and assures that packloqs do
not develop; It is tr.e responsioil ity of the adminis-
tering agency to develop a strategy and an annual permi
issuance list of oriority permits to oe reissued/modi-
fied/reopened during tne fiscal year (by name and type)
consistent with the National Surface Water Toxics
Control Initiative, the Annual Operating Guidance/ and
State permitting priorities. The list may be modified
periodically to ensure that it reflects changing condi-
tions throughout the year. At the time the list is
developed, the Region and State should agree on proce-
dures for modifying the list, as well as the role of
EPA and the State in the permitting process.
Permits that contain appropriate, clear and enforc^
requirements; The administering agency has the re;
sibility to ensure that individual permits are consisten
with the requirements in the regulations (NPDES, General
Pretreatment, State Water Quality Standards, secondary
treatment, effluent guideline, and sludge regulations),
as well as current national policy, and that permits
contain clear and enforceable provisions. Where the
State is the administering agency, the Region should
identify the specific State permits it plans to reviev
prior to issuance/modification in accordance with
applicable Federal regulations, and should target those
specific types of priority permits that require early
coordination prior to draft permit issuance. The State
should submit copies of draft and final permits consis-
tent with the NPDES regulations (40 CFR $123), and the
Region should conduct periodic audits of permit quality.
Where EPA is the permit issuing authority, the. Region
should coordinate with the State to assure timely
review and certification of permits in. accordance with
the CWA .($401) .
Clear identification of POTWs required to have approved
local pretreatment orograms (and significant lUs where
-------
there is no approved local program) as evidenced ay the
existence and use of;
Established procedures for maintaining complete/ accura
and up-to-date data on all POTWs required to have
approved local pretreatment programs; The agency
administering che pretreatment program (i.e., approved
State or EPA Region) is- respons iDle for establ ishing
and maintaining a complete inventory of all POTWs
required to have approved local" pretreatment programs
(previously approved and newly identified) consistent
with the Pretreat.-nent Compliance Monitoring and Enforce-
ment Guidance. Administering agencies should enter
required data into PCS in a timely manner consistent
with established procedures. The administering agency
should also maintain up-to-date files on individual
POTWs/ and should have a rationale for adding/deleting
municipalities from the list of required local programs.
Finally, the administering agency should have a plan for
completing and maintaining an inventory of all categori-
cal industrial users (lUs) and significant industrial
users (SIUs) where there is no approved program, as
resources allow.
Local pretreatment program data that are complete,
accurate and up-to-date; The Region is responsible for
conducting periodic file audits to verify that each
approved State is maintaining current files on POTWs
with pretreatment programs (including required reports,
inspection reports, audit findings, record of enforcement
actions taken, and documentation of assistance provided
to resolve problems), and entering data into PCS consis-
tent with prescribed procedures; the Region should also
conduct periodic audits in cases where an unapproved
State is working with the Region in a partnership
arrangement to carry out pretreatment program responsi-
bilities.
Approval of sound local pretreatment programs and program
modifications as evidenced by the existence and use of;
Current process for completing approval of newly identi-
fied pretreatment programs and for identifying/acting
on existing local programs that need adjustments/refine-
ments; The agency administering the pretreatment program
(i.e., approved States or EPA Regions) is responsible
for maintaining a process for reviewing/approving/dis-
approving newly required programs, as well as a process
for establishing priorities and taking action on program
modifications, as needed, consistent with national
. pol-icy, regulations and and guidance. The process for
reviewing existing local programs and for determining
the need 'for adjustments/refinements should emphasize
-------
inprcvi.-.g both trie basic co.-.trol .r.ecrianisnts
a.-.d r.-.e operational/enforcement aspects of trie program
— Ajpp roved/nod if led local pretreatment programs eha ._ avj
adequate control mechanisms, as well as aporooriat
mechanisms for monitoring compliance and carrying out
enforcement respons101111 ies: Trie admin ister ing agencv
r. as t.-.e respons1211 icy to ensure that its procedures fc
program review/approval 'mod i f i -at i on result in sound,
enforceaole local precrea trtent programs. Where a POTW
is newly identified, the procedures sr.ould address the
mod ification/reissuance of POTW permits to incorporate:
1) a schedule for local program development; and 2) an
approved local program and related conditions, includin
requirements for implementation and reporting. Where
POTWs are newly identified as requiring a local pretrea
ment program, the review and approval process should be
completed exped11 lously. As a general rule, the admini:
tering agency should work with the POTW to assist in
developing an approvable program submittal within one y«
of identification; the review and approval process shoul
be completed two to three months following submission.
Where existing programs need to be modified, the adminis
tering agency should establish priorities based on a
sound rationale, and should have a process for reviewing
local programs and determining whether local programs
need to be adjusted/refined to incorporate: 1) new/ —
revised control mechanisms for significant industri|
users (SIUs) and enforceable local limits based on
'headworks analysis and proper interpretation of categori-
cal standards; 2) mechanisms to adequately monitor IU
effluent, to track and determine' compliance rates for
SIUs; and 3) procedures for initiating appropriate
enforcement responses against lUs for noncompliance and
publishing the names of significant violators. The
administering agency should conduct these comprehensive
reviews whenever a POTW's permit is reissued/modified,
and as needed.
II. Compliance Monitoring
The EPA Regions and NPDES States must maintain records and
develop procedures for conducting accurate and reliable review and
evaluation of permittee self-monitoring reports, as well as inspec-
tion of permittees. The administering agency should assume primary
responsibility for these activities. These activities are essential
to maintaining the overall integrity of the NPDES 'permit program,
and for identifying instances of noncompliance so that the adminis-
tering agency can initiate appropriate and timely action as needed.
The administering agency should also have an established compliance
monitoring program that incorporates the requirements of the NPDES
regulations, as well as the-appropriate principles and support: in^
attachments of the- Enforcement .Management System (E.MS).
(oO
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Evaluation and oversight of compliance monitoring programs
should oe based or. r.-.e following criteria:
* Timely receipt and review of accurate and complete self-
monitoring reports/ and maintenance of complete and accur;
records as evidenced by the existence and use of;
-- Estaol isned procedures and time frames for.review of
DMRs, and -••intenance of complete and accurate data;
The admin;, ering agency should receive and review al 1
Discharge Monitoring Reports (DMRs) and POTW pretreatme
program implementation reports for accuracy and complet
ness,-and should assure that permittees are complying
with their permit requirements (using PCS, where possib.
to automatically screen data). The administering
agency should enter all the Water Enforcement National
Data Base (WENOB) data for major permittees (and a
lesser amount for minor permittees) into PCS in a
timely manner; DMR data should be entered within 30
days of receipt of the DMR. The administering agency
may also enter data into PCS for minor permittees, as
resources allow (see PCS Policy Statement for these
requirements). Response to nonreceipt or unacceptable
DMRs should be consistent with the time frames in the
regulation and the EMS; failure to submit or unacceptable
DMRs within 30 days of the required date are instances
of significant noncompliance for major permittees.
-- Data that are accurate/ complete and up-to-date: The
Region should verify that each NPDES State is exercising
its responsibilities properly through routine reviews
of a random sample of DMRs and PCS entries during
periodic audits of the State program.
* Maintenance of a reporting system that contains accurate,
up-to-date, accessible information on current compliance
status;
— Established procedures and time frames for submittal of
QNCRs and maintenance of data; The administering agency
must prepare and submit its Quarterly Noncompliance
Reports (QNCRs) consistent with the requirements and
time frames in the NPDES regulation and national guidance,
To the extent possible, the administering agency should
prepare the QNCR automatically by using DMR data and
other data that are entered into PCS.
— QNCRs and data systems that are accurate, complete, and
up-to-date; The Region is responsible for verifying
the accuracy and completeness of both the QNCRs and trie
da.ta in PCS.
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• Timely conduct of appropriate and effective compliance
:"3?ect :;rs as evi^e"-:ej oy t.'.e existence and use of;
— Established procedures within the annual alan-fjj
conducting compliance inspections; The administer"!
agency should have estaolished procedures for condu-tif
routine and special inspections as part of its annual
Compliance Inspection Plan. 7he plan and procedures
should oe consistent with the most current EPA Compliar
Inspection Manual and the NPDES Compliance Inspection
Strategy and Guidance, and should contain clear criteri
for selecting candidates for the appropriate mix of
routine and special compliance inspections (including
pretreat.ment and sludge inspections, as appropriate).
The procedures should also outline the basic requiremen
and time frames for completing reports on inspection
findings and for entering the data into PCS wherever
possible. The Region and State should agree in advance
to estaolish quarterly a list of facilities that are to
be inspected (including joint and independent EPA and
State inspections), and to assess the status of the
annual plan at established intervals throughout the yea
The Region should also agree to provide prior notice to
the State before conducting joint or independent inspec
tions, and to supply the State with at least semi-annua
reports of its findings (mid-year and end-of-year); the
State should oe apprised of major proolems as soon as
they are discovered.
-- Inspections that are conducted in an effective mam
The administering agency is responsiole for conducting
sampling and analysis in the prescribed manner, complet-
ing the required reports on findings within established
time frames, and for ensuring the entry of the data
into PCS. The Region should participate in an appro-
priate number of joint inspections with the State and
maintain an independent inspections program in order to
carry out its enforcement and overview responsibili-
ties, and should conduct periodic random audits of
inspection reports and case files. The administering
agency is also responsiole for taking proper action in
cases where permittees fail to respond to DMR Quality
Assurance (QA) requirements, and for initiating appro-
priate follow-up to OMR QA test results. NPDES States
should specifically identify the need for the Region's
assistance or support from EPA contractors, as well as
the type and level of assistance required.
Oversight of control authorities to ensure the adequacy of
approved local programs and the effectiveness of local
program implementation as evidenced 5y the existence and
use of:
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Comprehensive program for assuring the adequacy and
effectiveness of approved local programs; POTWs act as
the control authority for most local pretreatment
programs, and nave primary responsioilicy for complianc
monitoring and enforcement activities."* Administering
agencies should have procedures for carrying out a
variety of periodic reviews designed to ensure that
POTWs have adequate local programs that are seing fullv
and effectively implemented. Oversight snouid include
provisions for reviewing ?OTW reports, conducting
routine and special inspections, and conducting periodic
audits of control authorities.
Local pretreatment programs that are adeguate and are
being fully and effectively implemented; To ensure
that control authorities maintain adequate local pro-
grams, and fully and effectively implement these pro-
grams, the administering agency should; 1) conduct
audits of each local program at least once in every 5
years (20 percent per year), including an evaluation of
whether local limits need to be revised and/or whether
categorical standards are being properly interpreted to
protect treatment works, prevent interference with
sludge disposal, and protect receiving water quality
(including toxic organics, hazardous, waste, metals, and
conventional pollutants); 2) conduct, as part of regular
NPDES inspections, annual pretreatment inspections of
POTWs with approved local programs (except where an
audit has been performed in the same year), including a
sample of I Us in the POTW, to the extent that resources
allow; 3) review monitoring reports•(consistent with
the procedures and timeframes in the Pretreatment Com-
pliance Monitoring and Enforcement Guidance), including
annual reports submitted by POTWs and semi-annual
reports submitted by categorical users in areas without
local programs, to: assess the adequacy of industrial
waste surveys, local legal authorities (including
interjurisdictional agreements) and local implementation
mechanisms (e.g. permits, contracts, and/or local limits);
and to ensure that control authorities are conducting
timely and appropriate review of required periodic
reports, and are monitoring and enforcing consistent ,
with their approved local programs. The administering
agency should also have a plan for inspecting significant
industrial users where there is no approved local
program, to the extent resources allow.
III. Enforcement Response
The CWA'(§309) requires EPA or NPDES States to respond to
NPDES permit violations by initiating the appropriate enforcement
Where States act as control authorities in lieu of local
programs, they will be held to the same standards of implemen
tation as local authorities and Regions will pay special
attention to oversight of these programs.
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action(S); the administering agency sho-jld assume primary resocnsi
bi lit/ for tr.ese activities. -r. f orrer.ert response involves a"
series of actions, starting with the initial reaction to tr.e —Mrt
fication of a violation and en-ding with the discharger's ret- to
full compliance and close-out of the action. i
NPDES States should have compliance and enforcene.it procedure:
that are consistent with the Enforcement Management system ;•MS) .
Regions should follow the procedures establisnedTnthatsystem.
These procedures include screening ar.i assessing the significance
of the initial violation, translating compliance information into
the appropriate enforcement response in a timely manner, and enter-
ing instances of nonconpllance into the permittee's permanent
record.
Evaluation and oversight of enforcement.programs should be
oased on the following criteria:
* Timely evaluation and appropriate initial response to
identified violations as evidenced by the existence and
use of:
Established ore-enforcement procedures that set forth
criteria for evaluation and appropriate initial respon;
to identified violations; The administering agency
should have current pre-enforceme-nt procedures that
are consistent with the principles in the EMS. The
procedures should include: a violations review process
and criteria for screening DMRs to determine the (
significance of the violation; procedures and tirm
frames for applying appropriate initial response
options to identified violations; and procedures and
time frames for maintaining a chronological summary of
all violations.
-- Enforcement responses that are timely and appropriate:
The administering agency should: screen all DMRs from
permittees to determine the level and frequency of any
violation, and specifically evaluate instances of
non-compliance by major permittees and P.L. 92-500
minor permittees5 within an average of 30 days from
the identification of a violation; determine the
appropriate response; and document any action taken/
not taken (including the technical reason). The date
of identification of the violation is the point at
which the organization responsible for compliance/
enforcement learns of the violation; an appropriate
initial response is one that results.in the violator
returning to compliance as expeditiously as possible.
The Region should verify the timeliness and appropriate-
ness of a State's DMR evaluation and its initial
responses through periodic audits.
Other minor permittees should be evaluated as resources permit
KoA-
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Timely and appropriate enforcement response, follow-up
and escalation until .-compliance is obtained as evidenced
oy the the -existence and use of;
— Established enforcement response procedures chat are
appropriate and timely; The a -jn in i seer ing agency
should have currenc enforcement response procedures
that are consistent with the EMS, as well as an up-to-
date strategy for addressing instances of significant
noncompliance consistent with national and State orior:
ties. The procedures should set forth: an analytical
process for determining the appropriate level of
action for specific categories of violations; procedure
for preparing and maintaining accurate and complete
documentation that can be used in future formal enforce
ment actions; and time frames for escalating enforcemen
responses where the noncompliance has not been resolved
The administering agency should also have an analytical
process for assessing penalties or equivalent sanctions
in appropriate cases.
-- Enforcement actions (Administrative Orders and judicial
actions) that are initiated in a timely fashion and
contain clear and enforceable requirements; The adminis-
tering agency should be able to demonstrate that its
enforcement procedures result in: appropriate initial
and follow-up enforcement actions that are applied in a
uniform, consistent and timely manner; formal enforcemen
actions (as defined by State agreements) that clearly
define what the permittee is expected to do by a reason-
able date certain; an assessment of a civil penalty (or
equivalent sanction) as part of all civil judicial
referrals/ when appropriate, based on a consideration
of established factors** and in an amount appropriate
For States, the determination of a civil penalty amount (or
equivalent sanction) should be based on factors such as the
seriousness of the violation(s), any history of noncompliance,
any good faith effort to comply with applicable requirements,
the amount of economic benefit resulting from the violation,
the economic impact of the penalty on the violator, and such
other factors as justice may require; the seriousness of a set
of violations includes consideration of the harm or risk of
harm posed to health or the environment by the violations, the
amount by which effluent limits were exceeded, the violator's
efforts to correct the problem, and the duration of the viola-
tions. Regions are expected to follow the CWA Penalty Policy
in calculating penalties for EPA cases. •
For States, examples of sanctions include; bans on new sewer
connections,' bans on sewer usage, facility closure, and permit
.revocation or suspension. In defining the appropriate use of
civil sanctions, the Region and State should consider whether
the economic impact of the sanction is comparaole to a cash •
penalty; specific actions qualifying as equivalent sanctions
should be defined in State/EPA enforcement agreements. State/
EPA agreeements should also be used to deal with those special
circumstances in which the only formal enforcement action the
State can take is a judicial action.
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to tr.e violation: and compilation 2f complete and
ace-rate permane-r.t records that can be used in f^4^.5re
formal enforcement actions. m the case of ma
permittees, by Che time a permittee is identified
the QNC3 and deternined to be in significant nonce
pliance based on the definition provided in Guidance,
the administering agency is expected to have already
initiated enforcement action to achieve compliance.
Prior to a permittee appearing on the suosequent ONCR
for the sane instance of significant noncompllance, the
permittee should either be in compliance or the adminis
tering agency should have taken formal enforcement
action (generally within 60 days of the first QNCR) to
achieve final compliance.7 In the rare circumstances
where formal enforcement action is not taken, tne admin
istering agency is expected to have a written record
that clearly justifies why the alternative action (i.e.
informal enforcement action or permit modification) was
more appropriate. Audits will be used to verify the
timeliness and appropriateness of an administering
agency's enforcement actions, as well as its consistent
application of penalties/sanctions.
Appropriate involvement of Regional Counsel/State
Attorneys General (or other appropriate government
legal staff) to ensure legal support for national •
enforcement priorities as evidenced by the existence
and use of;
-- Established procedures for routine coordination and
notification of proposed enforcement actions, as
well as general time frames from case referral to
filing; The administering agency is responsible for
ensuring that the Regional CounseKRC)/Attorney
General(AG) is consulted on the annual judicial
enforcement commitments the administering agency is
making, and for estaolishing workable internal
procedures for notifying and consulting with the
RC/AG on individual cases arising throughout the
year* The Region and State should reach a common
understanding about the general timeframes from case
referral to filing.
— Coordination that results in timely and appropriate
action by the RC/AG; The administering agency should
be able to demonstrate that its internal coordination
procedures with the RC/AG (or other appropriate govern
A formal enforcement action is defined as. one that requires
actions to achieve compliance, specifies a timetable, contains.
consequences for noncompliance that are independently enforce-
aole without having to prove the original violation, and 3'--|
the person to adverse legal consequences for noncompliance
Policy Framework of June 24, I 934, as amended). Specific art;.-3
qualifying as appropriate will be defined in State/EPA enfor:~-••.-.
agreements.
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r^en-. legal staff) result in; tineiy review of initi
referral packages; satisfactory settlement of cases
as appropriate; timely filing and prosecution of
well-prepared referral cases; and prompt action
where dischargers violate consent decrees. As a
general goal, EPA and State cases should proceed
frsm referral to filing in 60 - 90 iays.
Effective integration of pretreatme-nt enforcement
activities into the established NPDES program as eviden-
ced by the existence and use of;
-- Established enforcement response procedures that are
appropriate and timely; The administering agency
should have enforcement response procedures that
include initiating appropriate enforcement action
where POTWs; fail to submit approvable pretreatment
programs; have violations of NPDES effluent limita-
tions; fail to implement approved pretreatment
programs; or fail to submit or submit delinquent
annual and other reports. The administering agency
should also have procedures for evaluating whether
POTWs are initiating appropriate enforcement responses
to violations by IUs.. where POTWs are not the
primary control authorities, administering agencies
are .directly responsible for naving these procedures
in place for categorical and non-categorical indus-
trial users.
~- Enforcement actions that are initiated in a timely
manner; The administering agency is expected to
initiate enforcement action against permittees with
pretreatment programs that are in significant noncom-
pliance, which applies to; failure to meet milestones
in enforceable schedules; violations of effluent
limits; and delinquent POTW pretreatment. reports.
Enforcement actions against these POTWs should be
taken consistent with the criteria and timefram.es
for the NPDES program. Administering agencies
should also report POTW noncompliance consistent
with national guidance that defines how to determine
whether POTWs are failing to adequately implement
their pretreatment programs. Administering agencies
are expected to review the compliance status of
these POTWs, and take appropriate follow-up actions,
including inspections, audits, and enforcement
against the most serious cases of noncompli-ance
based on national guidance. Administering agencies
should ensure that POTWs provide, at least annually,
for public notification of significant violations in
the largest daily newspaper published in the munici-
pality in which the POTW is located. Also, where
POTWs are not the primary control authorities,
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nis'ter:.".c; 37ar.c:-?s should initiate appropriate
enforcement actions against industrial users^^ a
violating categorical standards in accordancWkh
their enforcement response criteria and proced as
Timely and appropriate initial response and enforcene
follow-up oy EPA .Pegior.s to violations cy federal
facilities as evidenced sy tr.e existence and use of:
— Established procedures that include the appropriate
use of the compliance agreement process in lieu of
administrative orders: The EPA Regions should use
the compliance agreement process in lieu of an
administrative order as the initial approach to
resolving nonc'ompl lance with NPDES permit condition
by a Federal facility.3 Where such an approach doe
not result in expeditious compliance, the Region
should have procedures for escalating the response,
wnich may include issuance of a Federal administrat
order/ and, thereafter, act according to the documei
"Resolution of Compliance Problems at Federal Facil
ties* and the Agency's Federal Facility Compliance
Strategy.^ For violations constituting significant
noncompliance, the timely and appropriate criteria
for initiating action apply. Where a State has beer
approved to administer the Federal facility portion
of the NPDES program,, the basic enforcement
bility rests with the State; these States
have their own established terms and procedures
dealing with noncompliance oy Federal facilities,
and should use their authorities in the same manner
and to the same extent as any nongovernmental entity
(CWA $313(a)) .
-- Compliance agreements that are concluded in a timely
manner and result in expeditious resolution of the
noncompliance; The Region should be able to demon-
strate chat it uses the established compliance
agreement process in a manner that resolves non-
compliance expeditiously. where agreement cannot be
reached in a timely manner or does not result in
expeditious compliance, the Region should be able to
demonstrate that it escalates its response in a
timely and effective manner consistent with the
Agency's Federal Facility Compliance Strategy.
State response to instances of noncompliance by
Federal facilities should be evaluated based on the
terms and procedures set out in the State/EPA enforce-
ment agreement.
A Federal facility compliance agreement counts as a formal
enforcement action in tne SPMS system.
An Agency Workgroup has made final recommendations on an
Agency Federal Facility Compliance Strategy, which will serve
as the basis for revising the bellow 3ook..
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OVERALL PROGRAM AUTHORITIES AND MANAGEMENT
Under $S402(c)(2) and 304(i)(2) of the CWA, EPA has the obli-=
tion to ensure that approved NPDES State programs continue to meet
minimum statutory ar.d regulatory provisions in terms of legal
authority, procedures, funding, resources and personnel qualifica-
tions. In addition, EPA has a responsioility to examine State NPDE
programs periodically to assess their demonstrated progress in
carrying out the basic goals and oojectives of the Clean Water Act
and in achieving results.
Evaluation and oversight for overall program management should
be based on the following criteria:
• Adequate statutory and regulatory authority to administer
the Federal NPDES program; The Region should ensure that,
in accordance with the CWA and the NPDES regulations (40
C.F.R. $123.62(e)), approved State programs are revised as
necessary to reflect changes to Federal statutory and
regulatory requirements, and that modifications to approved
State programs conform to the NPDES regulations. Any modi-
fications to approved programs that are needed as a result
of changes to Federal legal requirements must be completed
within one year of promulgation of the changed Federal
requirements when changes to State regulation(s) are needed
and within two years when changes to State statute(s) are
needed. In addition, any proposed revisions to any State
legal authorities must be submitted to EPA for review and
approval.
The Region is responsible for assessing each approved
State's statutory and regulatory authority, as well as the
adequacy of its funding and staff qualifications to admin-
ister the NPDES program, and for initiating appropriate
and timely follow-up action as needed when deficiencies are
identified. In order to ensure the required degree of
Federal/State program consistency, the Region should
complete review of the statutory and regulatory authority
for all NPDES State programs whenever major State or
Federal statutory or regulatory changes have been enacted.
To the extent possible, Regions will conduct these State
reviews after the State's self-evaluation of its legal
authorities has been received; however, receipt of the State'
self-evaluation is not a prerequisite to EPA review of
legal authorities where a State's legal authority has
already been identified as deficient. Regions should
promptly notify the State of the need for. corrective
action. The State should correct any deficiencies identi-
fied in its self analysis or identified by EPA. In addi-
tion., the Regions should consider program withdrawal
proceedings or sanctions provided for by the "Policy on
Performance-Based Assistance" in appropriate cases where r.he
NPDES State has failed to request authorization for the
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t.-ert program . Se^ i 313- -*: '. 1. also continue to *or
-.-?r 5-at-?a t 3 or^rote full \'?D£S oro.jran
Demonstrated ability to set program priorities and ..
carry out the NPPES orogran in an effective manner;
I.n addition to evaljatinj the ad-i in ist-?r in.; agency's
perf ^r-iance in carrying ")jt its operational respond ib i I i ?
as set forth earlier in this jui-lance, the agency's over;
effectiveness should oe assessed oased 3n its lemons tra t =
progress cowards achieving the goals a.nj objectives of t.w
CWA. Listed below are four ^oals, ^hic.h, if achieved,
would provide sound evidence that the ^
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estaolisru-ient of local limits, and appropriate compliant
monitoring and enforcement activities. The overall
adequacy of local programs and pretreatment-related
conditions in municipal permits should"be evaluated,
. including: an on-site audit, no later than one year
after local program approval and at the tine o.f permit
•reissuance thereafter; review of reports; conduct of
inspections; and other activities as necessary. Where
an .VPDES State does not yet have the authority to
administer the pretreatment program, the State should
be evaluated aased on its performance of those activitie
for which it has agreed to assume a responsibility prior
to program approval.
-- Demonstrated ability to initiate appropriate and timely
enforcement actions against noncompliers; The adminis-
tering agency's enforcement program should be assessed
based on its performance in taking appropriate and
timely enforcement responses, especially against permit-
tees that are in significant noncompliance and against
municipalities that are not in compliance with the
requirements of the CWA consistent with the National
Municipal Policy (NMP). As a general goal, the adminis-
tering agency should strive to take appropriate formal
enforcement responses against 100 percent of its signi-
ficant noncompliers before they appear on two consecutive
QNCRs for the same violation (generally within 60 days
of the first QNCR with identified SNC violations) if
the permittee has not returned to compliance. All
other instances of noncompliance should be addressed
consistent with the procedures and time frames in the
administering agency's E.MS.
-- Demonstrated progress in achieving high or improving
rates of continuing compliance; The administering
agency's compliance and enforcement efforts should be
assessed based on its historical compliance trends in
terms of the percentage of permittees in significant
noncorapliance. Annual goals should be set on a case-
by-case basis, and should be based on the administaring
agency's current compliance rate plus a percentage
. improvement. Where the administering agency is below the
goal, it should develop an achievable plan for making
progress towards the goal over a reasonable period of
time.
PROCESS FOR CONDUCTING OVERSIGHT OF STATE NPDES PROGRAMS
Based upon•the general criteria outlined in this document, as
well as the specific annual goals and priorities in the Annual
Agency Operating Guidance, the Regions and States should negotiate
individual agreements that clearly define performance expectations
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for the N?3£S prc;ram, as well as the respective roles and
ciiities -f t.-.e Region and the State in administering the NP
program. These may oe separate agreements oetween the
State, and/or part of the overall $106 work program or
agreement processes. In either case, the agreement should ref
tne principles of the "Policy on Performance-3ased Assistance"
issued on *ay 31, 1995 by the Administrator, and the Office of
Water Funding Policy in the Annual Agency Operating Guidance.
The agreements should contain requirements for key outputs,
which the Region should review periodically oased on the specific
arrangements contained in the agreements. The Region should suppl*
the State with written reports of its review findings, and should
make specific recommendations and suggestions for program improve-
ments; the Region should discuss major problems witn the 'State as
soon as they are discovered. In addition, States should have the
opportunity to evaluate the Region's performance in providing
assistance and meeting commitments. These evaluations can coincide
with regular Regional evaluations of States, and should be circulat
to program offices as well.
The Region should tailor the level and the frequency of its
review to the State's overall performance in each specific program
area. States that have consistently demonstrated their ability to
adhere to or to exceed national program goals and priorities and to
meet or to exceed national performance expectations may be reviewed
less frequently and/or less extensively; other States may receive
more frequent and/or more detailed reviews by the Region.
State exhibits .continued poor performance, the Region should
recommendations for changes and should ta'ke other action(s) as
appropriate.i0 The criteria and goals in the earlier sections of
this guidance provide the Region with a general baseline for deter-
mining the proper level and frequency of oversight of a. State NPDES
program.
The Region should conduct a comprehensive assessment of the
operational elements of each State NPDES program at least once a
year prior to the Office of Water mid-year evaluation. This review
may be a summary of the results of the periodic program evaluations
that were performed during the year, and should provide the State
with an opportunity to explain its activities and progress in areas
of its NPDCS program that are not directly related to national or
Regional goals and priorities. At the conclusion of the annual
review, the Region should supply the State with a written report
that outlines the State's accomplishments and areas where improvement
is needed, as well as any agreements that were reached on resolving
problems that were identified during the review.
10. See the "Revised Policy Framework
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PROCESS FOR NOTIFICATION/CONSULTATION AND CRITERIA FOR DIRECT
FEDERAL ENFORCEMENT -
Under State delegation, EPA has the right to initiate an
enforcement action in a State, and is required by the Clean Water
Act, as amended in 1937, to notify a State prior to EPA assessment
of administrative penalties. The Region and State should have a
process for notice and consultation with tr.e Stace prior to initiat-
ing direct EPA enforcement action. The process should include a
discussion between the Region and State with respect to the circum-
stances surrounding the specific noncompliance situation and the
appropriate enforcement response. Such procedures can be used to
handle Federal facilities violations where the State might need
EPA's assistance in resolving the noncompliance. Attachment A is a
generic outline for a process that Regions and States might use for
consulting and coordinating State/EPA enforcement activities,
including determining when to initiate Federal enforcement action.
This process should also be used in situations in which EPA plans
to assess administrative penalties.
Using this advance consultation process, there will often be
cases where the Region and the State reach mutual agreement that
Federal action is more appropriate or that the State faces an
unusually large caseload. EPA may also initiate direct Federal
enforcement action where the Region determines that Federal action
is necessary because the case meets any of the following criteria:
legal precedent under national environmental law(s), unresolved
interstate issue(s), or violation(s) of an EPA order or consent
decree? where a Region determines a State has failed to initiate
timely and appropriate formal enforcement action (as prescribed
earlier in this guidance); and/or where a Region determines that a
State has obtained a grossly deficient penalty or sanction under
the circumstances of a given case.
In all instances, the Region will adhere to the established
process for advance notice and consultation with the State. The
discussion should include the option of the Region issuing a Notice
of Violation (NOV) to the permittee and the State indicating its
intent to institute formal enforcement action in 30 days if the
State fails to properly enforce and the source fails to return to
compliance, or the option of foregoing the NOV process in favor of
immediate EPA action against the permittee. This should be done in
accordance with State delegation agreements and Memoranda of Under-
standing.
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174
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ATTACHMENT A
.MODEL
SIGNIFICANT NONC3MPLIANCE ACTION PROGRAM
(SNAP)
MEMORANDUM OF UNDERSTANDING
PURPOSE
SCOPE:
PROCESS,
SCHEDULING
AND LOCATION
PREPARATION:
To provide for routine consultation and coordination
of EPA/State enforcement activities, and for EPA
oversight of the State's compliance and enforcement
programs.
The QNCR, furnished by the NPDES State in accordance
with Federal regulations, will serve as one of the
basic mechanisms for coordinating and overseeing
activites involving major permittees. Supplementary
compliance information on P.L. 92-500 minor permittees
will be submitted in accordance with written policy
and guidance from EPA Headquarters (SPMS and OWEG).
At least once each quarter, EPA and the State will
discuss the status of all permittees that appear on
the QNCR or supplementary submittal. The discussion
should take the form of a meeting wherever possible.
[Note: a conference call may be substituted where
distances are prohibitive). The meeting will take
place on the work day closest to exactly four weeks
prior to the stipulated State submission date for
the next QNCR. The location of the meeting will
alternate between EPA and a State office.
EPA Regional staff will review the State QNCR, which
must be prepared and submitted in accordance with
Federal Regulations and written policy guidance from
EPA Headquarters. EPA Regional staff will also
review supplementary compliance information on minor
permittees, which should be prepared and submitted
in accordance with EPA guidance and policy.
Six weeks prior to the meeting, EPA-will formally
transmit to the State its detailed comments regarding
i.tems that .appeared on the State's preceding QNCR.
EPA's comments should include: the permittee(s) in
question; the State action(s) in question; and the
recommended action to be taken by the State and/o-r EPA
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ION': Three weeks prior to the meeting, the State will
.'cent.; furnisn 3 response to EPA's list of concerns, "
including the State's action to obtain the
permittee's compliance.
Two weeks prior to the meeting, the lead individuals
from EPA and the State will agree on the list of
permittees that will oe discussed. The list will
include tnose permittees from the preceding step
that EPA wants to discuss at greater length, as"
well as cases where the State is seeking Federal
intervention.
At least one week prior to the meeting, EPA will
prepare the agenda and forward it to the State's
lead individual.
GROUND RULES: It is understood that no permittee should remain
in noncompliance for the same violation on two
consecutive QNCRs without: 1) being returned to
compliance; or 2) taking formal enforcement action
directed at obtaining sustained compliance.
Discussion of a permittee's noncompliance does not
constitute an action to cause compliance. The
discussion must result in a conclusive, mutual
understanding by EPA and the State of the formal
actions that will be taken by a date certain to
bring about compliance and/or to penalize the
recalcitrant permittee.
Prior to the meeting, a 11 permittees that appear on
the QNCR will be addressed in the State's own
compliance strategy/tracking system through the
following procedure or one similar to it:
— The State must hold preliminary meeting(s) with
its field offices (if any) to define, clearly
and concisely, the State's strategy for achieving
compliance on a case-by-case basis. The strategy
will include a description of the individual
permittee, the nature of the violation, and the
State's plan for handling each violation. It
will be forwarded to EPA.
-- During the meeting(s), ample time must be allotted
for a full, constructive discussion and disposi-
tion of all agenda items.
— As a result of the discussion, the State may
adjust the compliance strategies. Any modifica-
tions will require consultation with the Stat-e'^
field offices (if any). In such cases, the Sc
will forward the amended, strategies to EPA.
I Ik
0
-------
fcont)
The co run on goal of all parties .is to cause per
to achieve prompt and sustained compliance. T
may be cases where it is impossible for EPA to
with the State's actions to achieve this goal.
cases where agreement cannot be reached, both
the State should avoid extended -deoate and sho
clearly'define the actions that each party int
to take. Discussion should then move t3 the r
items on the agenda.
mittee.
here
agree
En
EPA an
uld
ends
emain i
Where there are significant differences of opinion,
EPA and the State should present the divergent view-
points to their respective Directors immediately
following the meeting. The Directors .will ultimately
decide the actions to be taken by their respective
Divisions and/ as appropriate/ will discuss with
each other the decisions.*
PARTICIPANTS: The lead participants will be the Chief/Director
from the appropriate Branches in the EPA and State
offices. It is essential that the same individual
participates in all four meetings held each year
because commitments are made at the meetings. Other
individuals may be asked to participate based upon
the specific issues to be discussed at the meeting,
(technical expertise, Construction Grants, etc.);
EPA and State legal staff may also participate.
The exact participants will be determined when the
agenda is finalized.
MINUTES:
The State will provide the minutes to the EPA lead
individual within two weeks after the meeting.
EPA must submit its detailed comments (if any)
within one week; if no comments are submitted with-
in the allotted time, the minutes will be considered
final. The minutes will describe the actions that
EPA and/or the State expect to take, including
independent CPA action such as issuance of either
NQVs or AOs. For the sake of brevity, the minutes
can reference the submittals received prior to the
meeting.
Director
State Water Program Office
Director
Water Management Division,
U.S. EPA, 'Region
* Decisions should be escalated to the Division Directors as the
exception rather than.the rule.
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1.8,
# "Action Plan on Pollution Prevention", dated April 13, 1989.
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1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
I 3 1989
ENFORCEMENT AND
COMPLIANCE MONITORING
MEMORANDUM
SUBJECT: Action Plan on Pollution Prevention
and Enforcement
FROM: Edward E. Reich
Acting Assistant Administrator
TO: Linda J. Fisher
Assistant Administrator for
Policy, Planning and Evaluation
Attached is the Office of Enforcement and Compliance
Monitoringfs Action Plan for Pollution Prevention. It shows how
OECM plans to incorporate pollution prevention goals into
enforcement program implementation. A draft action plan was
reviewed by the Regions and Headquarters program offices. This
plan reflects their comments. The plan encompasses four areas:
environmental auditing, enforcement settlement agreements,
vigorous enforcement of existing laws and the use of compliance
inspections to disseminate information on pollution prevention, t
further proposal to use compliance inspectors to affirmatively
identify pollution prevention opportunities specific to
individual sources -- drew little support and raised significant
concerns.
We look forward to wor)cing with your staff to develop the
Agency-wide Strategy on Pollution Prevention. If you have
questions, please call Cheryl Wasserman, Acting Director,
Enforcement Policy Division on 382-7550 or EMAIL EPA2281.
Attachment
cc: Associate Enforcement Counsels
Headquarters Compliance Program Directors
Acting Director, NEIC
Regional Enforcement Contacts
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POLLUTION PREVENTION AND ENFORCEMENT
Action Plan to Foster Two Agency Goal*
This paper describes the relationship between two important
Agency goals: preventing pollution and achieving high levels of
compliance with environmental requirements. It identifies
specific actions to realize the mutual benefits of both goals.
WHAT ARE THE TWO GOALS?
o Compliance and enforcement strategies seek compliance with
specific performance or operating standards. The key ingredients
of the compliance goal are: 1) specific legal requirements that
define acceptable performance; 2) a determination of compliance
status against those requirements; 3) legal consequences for
violations; and 4) enforceable action plans to permanently
correct underlying compliance problems.
o In contrast/ the pollution prevention goal as defined by the
Agency transcends existing legal requirements. Sources are
encouraged to reduce volumes of waste, waste streams, effluent,
emissions or pollutants at their source, whether or not subject
to specific requirements, and to'reuse wastes to minimize the
adverse environmental consequences of treatment and disposal.
o Compliance and enforcement strategies always seek to "prevent
pollution" in the broadest sense of the term but not necessarily
in the specific meaning of the term as now employed by EPA.
Enforcement deters violations i.e., "excessive" pollution, and
encourages reduced levels of pollution to avoid exceeding limits.
In the extreme, it may remove from business operations repeat
violators by resulting in denial of permits or demanding plant
shut down. In most cases, this also means that in an effort to
avoid violations, sources of pollution are encouraged to
eliminate or keep emissions or effluent well below that required
to comply. Moreover, if treatment of pollutants in order to
comply with standards is sufficiently costly, it will drive
pollution reduction for economic reasons, but only if such
requirements are stringently enforced.
Unless specifically mandated, however, regulated entities are
completely responsible for their choice as to how they will
comply with requirements. This empowers the regulatee either to
utilize the traditional **end of pipe" control to reduce
emissions or effluent after they are generated or to change
processes to reduce levels of pollution at the outset.
Enforcement settlements and orders cannot unilaterally introduce
requirements and restrictions on the means of compliance that
were not otherwise set forth in the original requirements.
Therefore, as a general rule, if a process or technology is
preferable from a pollution prevention standpoint, as well as
economically feasible, it is better to establish it as a norm in
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-2-
the regulatory setting than to rely on case-by-case enforcement
to realize its potential.
BOH DO THESE GOALS RELATE?
1- Strong, credible enforcement of existing lavs is essential to
encourage pollution prevention
The greatest incentive to action by public and private entities
to reduce or eliminate pollution stems from a concern over
liability, both now and in the future, personal and corporate,
for the consequences of pollution generated.
Further, the expectation of fairness, that competitors will be
made to comply, is essential to support those who choose to make
investments in pollution prevention as a means of achieving
compliance or of avoiding future environmental problems. The
literature is replete with case studies of those who step out in
an innovative way only to be undermined by those who flaunt the
law.
2- Pollution prevention today can Bean reduced need for
enforcement tomorrow
In the extreme, if discharges are eliminated or reduced to well
below otherwise acceptable levels, there would be minimal need
for a major compliance monitoring and enforcement effort around
these discharges. Further, if wastes are reused or not
generated in the first place (and thus not disposed of), there
would be less need for future after-the-fact "Superfund-type"
enforcement to address disposal practices which we have not yet
recognized as harmful. In this sense, the pollution that is
prevented today, can indeed mean reduced need for enforcement
tomorrow.
3- The compliance and pollution prevention goals fundamentally
reinforce each other; however there may be isolated examples of
conflicting short run strategies:
o The time allotted to legally come into compliance or the need
to expeditiously remedy violations may not be sufficient to
develop and implement pollution prevention alternatives.
o Incomplete environmental solutions proposed in the name of
pollution prevention may actually shift the burden from one
medium or forum to another, complicating enforcement.
o End-of-pipe controls may sometimes be easier to monitor for
compliance than pollution prevention alternatives.
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-3-
However, these conflicts can be illusory, and efforts to achieve
both goals are usually reinforcing. Further, they can be avoided
or reduced with more careful planning early in the regulatory
process. Attachnent 11 is an example of this interplay.
WHAT CAN ENFORCEMENT DO TO FOSTER POLLUTION PREVENTION?
1- Use ongoing compliance promotion initiatives in environmental
auditing and environmental management as well as enhanced
outreach within compliance strategies to promote pollution
prevention
a- EPA's Policy statement on Environmental Auditing
promotes this voluntary practice within the regulated community
to prevent compliance problems, promptly correct them, ensure
sound management practices and reduce risks of environmental harm
generally. Outreach activities to promote these practices will
continue and be strengthened. (See Attachment 12)
b- Compliance strategies are developed at the time a
regulation is promulgated and include promotional activities as
well as plans for compliance monitoring and enforcement when
the rules become effective. Early development and dissemination
of information on pollution prevention alternatives is key to
ensure the regulated community can make informed choices about
means of coming into compliance. OECM will work with the program
offices to factor these activities into compliance strategies, in
coordination with the States, where appropriate.
2- Encourage pollution prevention through enforcement settlement
conditions
Given the importance in the long term of establishing approaches
to pollution control which ultimately prevents pollution at its
source, the Office of Enforcement and Compliance Monitoring along
with the program offices will carefully review current policy and
practice to assess where there are any impediments to pollution
prevention that are otherwise unnecessary to preserving a strong
and effective enforcement program.
Although enforcement must closely track agency requirements,
there are opportunities for enforcement negotiations to better
accommodate pollution prevention approaches for sources to return
to compliance, and for these settlement agreements to introduce
creative conditions which can further pollution prevention goals.
These opportunities must take into account overriding concerns
for preserving both the deterrent effect of enforcement actions
as well as elements of fairness and equity in the extent to which
pollution prevention conditions related to the legitimate
environmental concerns of enforcement officials. Attachment 13
presents the charge of a new agency workgroup which will draft
multi-media guidance for addressing these issues. Interim
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-4-
guidance will be available by the end of the fiscal year.
Following several regional pilots, the guidance will be
finalized.
Program-specific guidance may also be developed to implement
these principles. Programs are generally encouraged to develop
their own guidance but OECM will work with them to ensure
consistent application of overall enforcement principles that are
in place and are being articulated through the umbrella policy
workgroup. These approaches will then be fostered among State
officials.
3- Provide the incentive for pollution prevention by continuing
to enforce existing requirements vigorously
There are numerous examples of how traditional enforcement
provides incentives for pollution prevention, some of which are
highlighted in Attachment 14. Pollution prevention will be
enhanced through continued efforts to strengthen enforcement and
to better communicate the adverse consequences of non-compliance.
4- Use compliance inspectors to disseminate information in the
field on pollution prevention
OECM will support proposals for field personnel to be used to
disseminate information on pollution prevention to facility
managers, which refer to other sources of expertise and technical
assistance. A full discussion of this issue is included in
Attachment 15.
Consideration also was given to using agency compliance
inspectors to identify pollution prevention opportunities in the
field. This proposal has proven to be highly controversial and
will not be included in the action plan at this time. Those
strongly opposed to this approach cite a confusion of roles.
Those who support it identify a need for extensive training
before agency inspectors would be in a credible position to offer
such advice.
Each of these areas is explored more fully in the attached
discussion pieces and action summaries: Attachments §2-5.
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ATTACHMENT fl
EXAMPLE
INTERPLAY BETWEEN ENFORCEMENT AND POLLUTION PREVENTION GOALS
An illustration of how these relationships play out in practice
is the development and implementation of low solvent technology.
EPA has encouraged the use of water based inks and paints, for
compliance with air quality standards, in place of high solvent
inks and paints, which require capture and incineration of
volatile organic compounds.
Full substitution of water based paints and inks for high solvent
paints and inks would enhance compliance with air pollution laws.
There could be reduced need for continuous monitoring, record
keeping, and inspection presence. As long as high solvent paints
and inks are used, there is a need for end-of-pipe control,
capture and destruction of volatile organic emissions through
incineration, and this requires continued monitoring,
surveillance and enforcement action for inadequate capture and
destruction efficiencies. Adoption of water based paints and
inks also could reduce the need for enforcement oversight of
disposal of used solvents.
However, the industry was slow to respond to the pollution
prevention alternative to incineration. Despite ample time to
develop competitive processes if they had started right away to
invest in these alternatives, industry ran out of time to comply.
Perceptions of lax enforcement, concern that the technology would
lead to inferior product, and that competitors would get away
with no action, led to a wait and see attitude. It was only
after vigorous enforcement, forcing either incineration, water
based inks, or a combination of both, that progress in applying
pollution prevention approaches proceeded at a rapid pace. In
this regard, enforcement practices at first delayed and then
enhanced pollution prevention. In forcing industry's hand, and
not allowing more time to develop the alternative technologies,
enforcement was also foreclosing pollution prevention by those
who opted for the incineration option given time constraints.
Further, because the pollution prevention option is not yet as
well developed as it might be, many chose to comply with a
complicated arrangement combining both high and low solvent inks
in production line averaging schemes. This introduced new
wrinkles in compliance monitoring and enforcement requiring a
recordkeeping and compliance trail for use of specified paints
and inks.
Do the two goals therefore conflict? While seemingly more
complex for instantaneously assessing compliance, the pollution
prevention alternative probably facilitates continuing
compliance. It is far easier to review records for an accurate
portrayal of behavior over extended periods of time than
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• -2-
to attempt to demonstrate the capture and destruction efficiency
of an incinerator's operation over time, between inspections.
At the sane time, this mixed approach, using both water based
paints and incineration, allows industry to become more familiar
with the water based alternatives and to perfect their
application to more specialized customer needs.
In this instance, the pollution prevention goal seemed on its
face to make enforcement more complex and enforcement seemed to
shut off pollution prevention options but, it is more likely that
these efforts will reinforce each other in the long run. As the
technology develops, spurred on by vigorous enforcement, its full
use holds the potential for significantly reducing the need for
compliance monitoring and enforcement.
Clearly, promoting compliance and pollution prevention can
sometimes appear to be a careful balancing act, but one that is
easier to perform if it is remembered that the ultimate gains are
best served by seeking to achieve both goals.
Finally, as one cautionary note, in assessing the environmental
benefits of proposals to prevent pollution at its source, the
Agency must take into account compliance behavior and difficulty
of enforcement. If reductions of pollutant discharges, emis-
sions, or wastes leads to smaller, more numerous sources EPA must
weigh the problems of monitoring and disposal against current
practice to truly assess the benefits of the practice.
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ATTACHMENT f 2 ENVIRONMENTAL AUDITING
U0e ongoing compliance promotion initiatives in environmental
auditing and environmental management to promote pollution
prevention
Ongoing agency initiatives promote environmental auditing
and sound management practices. They serve to solicit the
attention and commitment of senior management in public and
private sector organizations to identify and take appropriate
action both to improve compliance and to address environmental
risk generally. The Office of Enforcement and Compliance
Monitoring, in cooperation with the Office of Policy, Planning
and Evaluation co-authored the agency's Policy Statement on
Environmental Auditing, published in the Federal Register. July
9, 198* (51 FR 25004). This policy does several things. In
particular, it:
- Encourages environmental auditing as an effective,
independent, systematic, periodic and objective review
of plant operations and procedures to assess
management systems, compliance status, risk reduction
potential or any combination of these.
Auditing is considered an augmentation of and not a
substitute for ongoing environmental management,
monitoring, reporting and recordkeeping obligations.
- Defines the general elements of an effective auditing
program;
- Respects the importance of carrying out self-evaluations
with some degree of privacy, clarifying when EPA may or
may not request audit information.
- Offers no reduced enforcement presence as a quid pro quo
for conducting audits and explains that continued EPA
inspection and enforcement is essential to maintain the
incentive to audit.
- Establishes agency policy to introduce environmental
auditing provisions in consent decrees and orders with
firms which evidence repeated patterns of violation, due
at least in part to management failure, or where the
violations are likely to occur similarly at other
facilities owned and operated by the violator.
Before and since the issuance of the policy, both offices and the
Office of Federal Activities have been actively involved in
promoting the use of environmental auditing by regulated entities
both to anticipate environmental compliance and other problems
related to general environmental risk exposure. In addition,
OPPE is in the process of documenting broader environmental
management practices e.g. corporate policies, of leading industry
programs.
Activities fall into three categories:
a) Outreach:
- Speeches are regularly given by OECM/OPPE/OFA on the
policy, encouraging these practices;
- technical assistance is provided in the form of case
studies, protocols and bibliographies distributed
on request (recently waste minimization assessment
guidance was added to these materials);
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- OFA is preparing audit guidance for federal agencies
- OECM plans to strengthen the network in the Regions of
individuals capable of providing information on
environmental auditing; and
- OECM and OPPE have active representatives on the
Environmental Auditing Roundtable, an industry group
dedicated to promoting auditing as a profession.
b) Development of Auditing Guidance for Municipalities
- Municipalities are a last frontier for auditing and
ripe for its application given compliance pressures on
city and county governments. We are aware of only one
municipal auditing program at present. In response to
interest expressed by this community/ OECM and OPPE are
developing an initiative this year to promote auditing
practices tailored to this group and its environmental
concerns.
c) Conditions in Enforcement Settlements:
- Zn November, 1986 OECM issued guidance on the
inclusion of environmental auditing provisions in
enforcement settlements. Since that time, numerous
orders and decrees have introduced audit applications.
This guidance indicated that EPA's policy is to settle
its judicial and administrative enforcement cases only
where violators can assure the Agency that their
noncompliance will be corrected. This assurance may,
in part, take the form of a party's commitment to
conduct an environmental audit.
EPA reserves the right to review audit-related
documents required as part of an enforcement
settlement agreement, but usually oversight entails
some form of self certification, review of findings
and/or a management plan pursuant to an enforceable
schedule.
A violator's commitment to conduct an audit is one of
several actions that can be required to remedy
noncompliance or, in certain circumstances, may be a
basis for reduced penalties. This element is discussed
further in Attachment |3.
ACTIONS: l) Continue and enhance outreach efforts, emphasizing
new interest in pollution prevention; 2) undertake municipal
project; 3) strengthen use of compliance and management-related .
audit conditions.in settlements; and 4) explore use of waste
minimization audit conditions in settlements under workgroup
described in Attachment 13.
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ATTACHMENT |3
ENFORCEMENT SETTLEMENT CONDITIONS
Encourage Pollution Prevention through Enforcement
Settlements Conditions
Just as environmental auditing conditions related to
compliance and/or management audits may be appropriate to
introduce in enforcement settlement negotiations as described in
Attachment 12, so may other means of encouraging pollution
prevention. Two EPA Regions have expressed interest in
exploring, with OECM and the Office of Pollution Prevention, what
pollution prevention terms and conditions may be appropriate in
enforcement settlement negotiations. In general, pollution
prevention activities may be appropriate if they:
Correct the underlying violation
For example, if treatment capacity is exceeded, instead of
agreeing to build additional capacity on a schedule,
the source and agency might agree to a schedule to reduce
pollution generation to the levels which can at least be
accommodated with current treatment or control capacity.
In such cases, pollution prevention is the means of
compliance embodied in the agreement.
Provide evidence of good faith efforts to comply,
warranting penalty mitigation.
Good faith is a factor which certain enforcement penalty
policies recognize as a potential reason for downward
adjustments in penalty assessments; This is the basis in
the environmental auditing policy for any consideration of
source proposals to audit for further remediation or
improvement beyond that required by enforcement for the
^specific violation in question.
Define projects which may be an acceptable basis for
mitigation of penalties which would otherwise be assessed
(Environmental Improvement Projects)
The Uniform Penalty Policy contains provisions for
considering projects as part of a settlement agreement
(and have been adapted to program- specific penalty
policies) where they do not significantly reduce the
deterrent effect of a penalty.* The criteria include:
— Mitigation projects cannot substitute for full
compliance (they must be undertaken in addition to
correcting the violation).
— The project should be closely related to the nature
of the original environmental harm or violation.
* A Workgroup is currently reviewing the existing criteria for
considering alternative payments, in the context of developing a
policy on mitigation of administratively assessed penalties.
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~ Penalty reductions should reflect the actual cost of
the penalty mitigation project (i.e., no tax
advantages which can reduce the deterrent, effect of
the penalty).
~ Provisions in consent decrees or agreements cannot
go beyond what is the equitable power of the Courts
to order.
— The project Bust primarily benefit the environment
rather than the defendant (no favorable publicity ^'
for violator, etc.)
— The project must not be something the defendant
should be expected to do as sound business practice.
Two principles »ust guide any initiatives in this area:
o Any such provisions cannot weaken the deterrent effect of
the enforcement action. Enforcement actions must establish
the correct incentives and disincentives, leveraging
relatively few individual actions into far reaching
behavioral changes. We also must avoid perverse incentives
to delay action to develop pollution prevention alternatives
until they might be needed to bargain with enforcement
personnel.
o Any such provisions must in turn be enforceable, that is,
accompanied by tracking and follow through to ensure they
are carried out. This has proven to be difficult in the
past and is one reason for the traditional reluctance of the
Department of Justice for accepting other than dollar
penalties in addition to correction of the underlying
violation.
Traditionally, EPA policy has followed these principles by
rejecting proposals which defendants would otherwise choose to do
on their own or projects whose benefits accrue to the defendant
rather than the environment or the public at large. Current
penalty policies are under review to assess the current
limitations on accepting alternative payments and other
beneficial projects.
ACTIONS: OECN will establish an Agency workgroup to: 1) prepare
guidance on acceptable enforcement settlement provisions which
promote pollution prevention consistent with Agency penalty
policies and work with individual program offices on program-
specific guidance; and 2) work with selected Regions to pilot
the guidance.
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ATTACHMENT |4
VIGOROUSLY ENFORCE EXISTING LANS
Provide the incentive for pollution prevention by continuing to
vigorously enforce existing requirements
The two greatest motivations for pollution prevention are
the potential liability from enforcement of environmental laws
and broader private liability through tort claims, contracts etc.
for the adverse consequences of environmental pollution.
Specific examples of how strong enforcement can encourage
pollution prevention include:
o Pre-manufacture Notification:
By preventing new chemicals from being produced and marketed
which pose unacceptable environmental harm, EPA can most
effectively prevent new pollution at its source.
o Title III Toxics Release Inventory reporting:
Required reporting under Title III section 313 encourages
sources of toxic chemicals to reduce volumes of releases into
the environment by making the information publicly
available. It is also essential as a baseline for assessing
progress in preventing pollution nationwide. Firm and
visible enforcement is needed to reinforce those who
diligently reported and gain compliance from those who have
not.
o Super fund and RCRA enforcement:
Corrective action and clean-up of past practices which are
now deemed harmful, establishes new rules of behavior
requiring anticipation of future liability regardless of
whether action today is legal. Vigorous enforcement leads
operators to conclude that reducing the amount of hazardous
waste is in their own interest.
o Pesticide use:
Groundwater contamination, air and surface water problems
from excessive pesticide use, with vigorous enforcement, may
drive reductions in application levels and for elimination
of pesticide use.
o Air and Water standards:
Given the substantial existing investment in pollution
control, enforcement may force exploration of process change
to meet new toxic requirements and demands of growth. In
particular, firm enforcement of pretreatment and other toxic
requirements, particularly new sludge disposal requirements,
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-2-
may enhance substitution of product and process to avoid
further pollution control expenditures.
o Continuous Emissions Monitoring:
There are natural variations in the operation of any type
of equipment. When continuous emission monitoring is
required to assess compliance status with requirements, it
tends to force the regulated community to provide for an
ample margin of safety in plant operations, to avoid
reporting instances of non-compliance.
ACTIONS: 1) Continue strong emphasis and priority for enforcement
of environmental lavs; and 2) continue to pursue ways to enhance
the visibility of enforcement and the adverse consequences of
non-compliance.
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ATTACHMENT |5
INSPECTOR ROLE ZN TECHNICAL ASSISTANCE
ON FOLIATION PREVENTION
TTsft compliance inspections to identify pollution prevention
opportunities in the field
EPA, State, and local compliance aonitoring programs rely on
a combination of self-reporting by facilities and on-site
inspections to determine compliance with permits, rules and
existing enforcement commitments. These inspections may be
carried out for cause, or as part of a neutral inspection scheme.
The primary purpose of an inspection is to gather information and
evidence to support the compliance determination and any follow
up enforcement action where violations are discovered. The
inspector is the most visible representative of EPA or the State
or local agency at the plant or facility level. The presence of
and conduct of the inspector on-site can add to or detract from
the credibility and deterrent value of the compliance monitoring
and enforcement program.
The appropriate role for inspectors in technical assistance
has long been debated within EPA and the environmental community.
State and local inspectors tend to adopt the technical assistance
role more readily, but are notably less oriented to formal
enforcement. The underlying concerns about the role of inspec-
tors in providing technical assistance are:
1- Technical advice offered in the field for remediation or
correction of the violation can undermine EPA's further enforce-
ment action, or be raised as a defense. (For this reason, with
few exceptions, inspectors are urged in closing conferences with
facility managers not to even draw conclusions as to the viola-
tions.)
2- The roles of technical assistance/transfer and enforce-
ment require different approaches and can cause confusion in
roles, undermining the enforcement attitude which is already
difficult to foster.
3- Effort spent on technical assistance when it is oriented
to solving specific problems can be quite expensive and diverts
limited resources from enforcement.
4- Depending on its scope and purpose, technical assistance
may require a level of expertise that all but the most ex-
perienced engineers lack. Although a 1987 survey of EPA person-
nel performing compliance inspections found that 2/3 were
environmental engineers or environmental scientists,, knowledge of
engineering design and processes at the plant-level sufficient to
suggest pollution prevention options is quite different from
identifying and documenting compliance problems.
5- Technical assistance from EPA may compete with and
inhibit the development of such assistance in the private sector.
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-2-
While all valid concerns, there is one area of potential
benefit in using field inspectors for a well-defined but limited
technical assistance role which avoids some of these pitfalls.
One approach, requiring little new expertise or change in
roles, is for EPA inspectors to distribute to the plant operator
literature promoting pollution prevention action. The inspector
would not have a problem-solving role. OECM has suggested this
approach for SARA, Title III reporting and RCRA small quantity
generators. Some training may be needed so that likely questions
can be answered without loss of credibility. However, such
literature should always include references and contacts for
further assistance from EPA Regions or Headquarters.
The majority of commenters suggested that a separate cadre
of personnel, not compliance inspectors, be relied upon for
pollution prevention expertise, such as for waste minimization.
In such cases, however, it is important that the role and
expectation be clearly established and distinguished from an
enforcement-oriented field presence. This approach is adopted
by OSHA which carefully separates the inspection function for
enforcement from the technical assistance/consultation function.
OSHA offers this latter assistance to small and medium sized bus-
inesses in hazardous industries through a consultation program
for which it has a specific legislative mandate. Those who
request a consultation must agree in advance to correct any
deficiencies noted, and may be referred for compliance inspec-
tion if they fail to correct deficiencies.
ACTIONS: Based on comments from the lead Region, the Agency
Inspector Training Advisory Board, and the Enforcement Management
Council concerning the importance of separating the technical
assistance function and the enforcement function, OECM is not
proposing any further action at this time in regard to inspectors
providing technical assistance in the field on pollution
prevention opportunities. However, OECM will support specific
proposals to use compliance inspectors to disseminate literature
on pollution prevention. OECM will use existing institutional
mechanisms to raise and gain support for such proposals developed
in cooperation with the program offices.
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\.C\i,
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II. NPDES PROGRAM: PRE-ENFORCEMENT
A. SOURCES OF EFFLUENT LIMITATIONS AND OTHER REQUIREMENTS
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II.A.I.
"NPDES Permit Authorization to Discharge", dated April 28, 1976.
L-L
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"200
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*'
| UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
• •
APR 2 0 1375
0?FIC£ OP ENFORCEMENT
n --
MEMORANDUM
Subject: NPDES Permit Authorisation to Discharge
From: Deputy Assistant Administrator for Water Enforcement
To: Regional Enforcement Director, Region V
This is in response to your March 17 memorandum requesting
Headquarters' policy on the following issue:
" [W] hether an NPDES permit constitutes an authorization
to discharge only specific parameters limited or monitored in the
perr.it or a general authorization to discharge all parameters subject
only to the limitations contained in the permit."
1 Answer
Headquarters policy, as well as the clear language contained in
the standard permit form [s?A Form 3320-4 (10-73)], provides for a
general authorization to discharge subject only to the conditions
and limitations contained in the permit.
Discussion
Every standard permit issued by SPA provides that the named discharge:
is "authorized to discharge from a [named] facility ... to [named]
receiving waters ... in accordance with effluent limitations, monitoring
requirements and other conditions set forth in Parts I, II, III hereof."
In addition to effluent limitations -specified in Part I and any special
requirements set forth in Part III each general authorization to discharge
is subject to the general conditions set forth in Part II. Those
general conditions which tend to restrict the general authorization to dis-
carge are the following:
• A.I. Change in. Discharge - requires notice of facility expansions,
production increases or process modifications resulting in any different
or'increased discharges of pollutants even if such changes do not violate
the permit effluent limitations.
• A.3. Facility Operation - requires the permittee to maintain his
treatment facilities or systems in good working order and operate them
as efficiently as possible. •
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A. 5. Bvnassing
circumstances.
all bypassing is prohibited except under certain
It is believed that the above general conditions, along with the
installation and proper operation of treatment systems designed to
achieve compliance with effluent limitations based upon 3PT and water
quality standards requirements should adequately limit the general
authorization to discharge. Should information which suggests otherwise
subsequently become available (e.g., discovery of the presence of toxic
substances such as PC3s in the discharge) , the permit may be modified
for cause in accordance with general condition B.4. ("Permit Modification")
The few permits issued under the NPDES's predecessor permit program,
the Refuse Act Permit Program, authorized only those parameters identified
in the r=rmit. This approach was rejected by SPA during the early
development phases of the NPDES because it is impossible to identify and
rationally limit every chemical or compound present in a discharge of
pollutants. Compliance with such a permit. would be impossible and
anybody seeking to harass a permittee need only analyze that permittee's
discharge until determining the presence of a substance not identified
in the permit. The permittee then would be in technical violation of
his permit.
Because we believe the approach adopted in the MPDES Permit Form
3320 is valid we recommend against inserting in permits the language
identified by Walter A. Romanek in his January 22, 1976, memorandum
(attached) . Although it may be appropriate in special cases to employ
narrative language in addition to the Part II general conditions in
order to further restrict the general authorization to discharge, as a
routine matter such practices should be avoided.
I believe the above statement of policy is consistent with that
provided to your staff by Dick Browne and Barry Shanoff . If you have
any further questions please contact. Dick Browne r~Bb "Smett, Brian
Mo Hoy, or' me.
Enclosure
cc: Roy Harsch, Enforcement Division., Region V
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II.A.2.
"POTW Compliance with NPDES Permit Effluent Limitations", dated January 5,
1977.
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-------
f • -u'^.-' V
I'^rffi ** UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
•i"*3'' T/ WA«'-
V/ASHI.NGTON. D.C. 20460
•n*-
CFf'.CZ Zf. THE
ADMINISTRATOR
KSTtORANDOM • .
TO: Regional ArTinistrators
F20*i: . Deputy Administrator /S/ Jcii Q^srias
SC3JECT: PCTW Conplianca with IIPDES Permit Effluent Limitations
Poor performance by Publicly Owned Treatnan-t Works (?OTWs) is of
'sajor concsrr. to the Agency. Each successive review of POTlTs* operations
indicates that their overall performance level is unsatisfactory. Over
a third of the POTWs are failing to produce the effluent quality for which
they were designed. Nearly half of the PCTWs originally designed for
secondary treateent fail to cosply with present secondary treatment
standards. These conclusions have been confirmed both by ZPA's annual
Section 210 Reports to Congress and by the recently coapieted municipal
cccpliance audit report. This nezorandua briefly describes the EPA's
policy for dealing with the prcblen.
The Federal Water Pollution Control Act clearly establishes EPA's
priaary role in assuring adequate POTW performance as being regulatory.
This role requires us to insist that municipalities accept full
responsibility for achieving effluent linits required by their NPDSS
permits. To accomplish this, we sust assume an aggressive enforcement
posture with respect to municipal noncscpliance. Aggressive enforcement
of municipal permit requirements can and will yield significant results.
Region IX, for example/ recently initiated and won a major precedent-.
setting civil action against the City of Casden, New Jersey, forcing
it to restore and properly operate and maintain its treatment facilities.
Other significant enforcement actions are also being developed against
POTWs. The amount of POTW enforcement activity, however, must be
drastically. increased in all Regions in order to demonstrate our in-
sistence upon municipal accountability for PCTW performance.
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Municipalities' are responsible and accountable for achieving the
effluent limitations required in their KPC2S permits whether or net they
have the in-house capability to deal with the problem underlying the
violation.. It is the municipality's responsibility to seek and secure
whatever technical assistance or training is necessary to solve that
problem. SPA must insist that municipalities accept and carry out that
responsibility and must take enforcement action against those that are
unwilling to do so. .
Although it is recognized that SPA and the States are currently
providing limited technical and training assistance, most of such
assistance and training must be provided by the private sector. While
the private sector can undoubtedly develop the capability to provide
such services when a sufficient demand is made on it for those services,
to date that demand has not been strongly made. Consequently, many
consultants, equipment manufacturers and systems vendors have not yet
developed a significant capability to render technical assistance or
training. SPA and.the States must expand their present efforts to
encourage and stimulate development of private sector capability and
expertise to meet these needs. Aggressive enforcement of municipal
permits and an insistence that municipalities seek needed technical and
training services should provide' an incentive_ for 'the private sector to
develop the needed capability.
In those few cases where a municipality has recognized the need of
outside assistance to meet permit effluent limitations and has unsuccess-
fully sought that assistance, formal enforcement might be a futile response.
EPA or State assistance might be appropriate in such a situation. Since
it is the municipality's responsibility to seek that assistance, it should
be given normally'at the municipality's request rather than on the initia-
tive of EPA or the State. And since a demand must be placed on the private
sector if it is to develop the capability of providing such assistance,
SPA should not normally provide the assistance unless the municipality has
unsuccessfully sought it elsewhere. Consequently, SPA and State technical
and training capabilities vill be helpful in the short tern to fill gaps in
local and private sector capabilities to resolve POT:-? compliance problems.
To the extent that EPA capabilities in this regard exist at the present
time, however, they should not be expanded, but should be reduced as
private sector capabilities mature.
Any technical or training assistance provided by SPA must be provided
in a manner compatible with our primary role as regulators. It should be
regarded as but one option available to the regulator in a particular case
and not as the sole option or the option of choice in all cases. The
inability to provide technical assistance in a given case or the failure
to achieve the required effluent limitations after the. provision of such
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assistance should naver preclude the use of rrora demanding regulatory.
options, whsrs technical, assistance is provided, it =ust be dons in a
manner-that will not prejudice the Agency's case in a subsequent enforce-.
nar.t action if the effluent lirvitations ara not achieved aftar assistance
has been' provided.
I recognize that isany people, both within and outside the Agency,
believe thac.SPA should conduct a strong prograr. of technical assistance
to individual ccsrsunities in addition to its er.forcar.ent role. In the
abstract, this proposition r=ay appear attractive. • As a practical izattsr,
however, an active assistance role confuses and undercuts the predominantly
regulatory role.that the F/JPCA has fashioned for the Agency. . Moreover,
limitations on existing and foreseeable resources raka it wholly unrealistic
to think that we have or could develop the capacity .to provide technical
assistance in any significant nusber of cases as part of our' national •
program. Thus we have no choice but to accept our role as being predcninantlj
regulatory. Within this context, we can and should conduct an-active role
in -.anpower training, technology transfer and the dissemination of technical
assistance on a genaral basis rather than an individual case basis.
I also specifically do not intend to restrict by this rseans any
activities we =ay be able to undertake in the neglected. field of r-ahpower
training. • . . • •
In surssary, let ne sake clear that our philosophy toward opera-ting
?OTtfs is regulatory and that the responsibility for rneeting applicable
persit recuirenents rests squarely on the PCTWs. To date the compliance
assurance pregraia has been successful in securing compliance .froza industry.
It is our responsibility to sake sura that it is equally effective in
securing cctnpliance from ir.unicipalities.
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?m
-------
II.A.3,
"Confidentiality of NPDES Permit Applications" dated April 6, 1978 with
attached memorandum dated March 22, 1978.
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•210
-------
6 &
HS30RAHDUH. •
TO: Regional Adrlnlstrators
State NPDES Directors
ROM: Deputy Assistant Adsrfnlstrator for Water Enforcement (EH-333)
.SUSJECT: Confidentiality of NPDES "Persrit Applications
Attached 1s a copy of a recent decision Issued by the Office
of General Coursel which requires that all information la ftPDES
persit applications and perslts be ssade public. Please advlsa
your • staff ..of this change so that leplesentatloa can be unifora.
Jeffrey S. Killer.
cc: Regional Enforcesent Division Directors
Regional Persits Branch Chiefs
JShaffer:mH1te:PD:EN-336:3109 WSM:S-0750
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CLASS ariSPJiZNArZON 1-73
C3NTIDZNTIALITY Or .DTrORKAIION IN NATIONAL POLLUTION DISCHARGE
ILIXINATIdN SYSTIK PEP-iilTS AND PE2KZT APPLICATION'S UXDZS. SECTION'
402 (j) OT TE2 TZD-2AL WAIZ2. POLLUTION CONTROL ACT
Under che Federal Water Pollution. Control Act (FKPCA), as aacr.de
(33 U.S.C. 466 et sea.), the Environmental Protection. Agency (EPA)
•
or counterpart .State agencies issue National Pollution Discharge
Elimination Sjstes (NPBES) persits to individual sources of vater
pollution. This prograa is adnisistered priaarily la. ZPA's Regional
offices. Those offices have asked for a Class Detezziaatica concern-
ing the confidentiality of information contained in KPDZS perrits ar.d
per=it- applications in'light of section 402(j) of the .?W?CA. Under
40 CJ2. 2.207, I have authority to issue Class Determinations concern!
the confidentiality cf classes of information obtained by IP A.
la the case of information contained in KPDES permit applicatiot
and K7DZS permits, I have found:
1. ZPA possesses and vill continue to acquire 'information in
HPDZS permits and permit applications.
2. Tne information contained in NPDZS permits and permit applic
tions.is of the; same character. It is proper'Co-treat «UJL of .the
information as in the same class.
3. A Class Determination vould serve a useful purpose in clari;
the status'of potentially confidential information contained in KPDEI
permits and permit applications as restricted by section 402(j) of J"»
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2
I have determined char information contained in NPDZS permics
and N?D£S permit applications Is not entitled to confidential treat-.
nent because section 402 (j) of the FWPCA tun da c as disclosure of thig .
information, to the public notwithstanding the fact thai it eight be
trade secrets or commercial or financial information.
Section 402(j) of JWPCA states "[a.] copy of •a'-*i permit applica-
tion and each permit issued under this section efraTT be available to
the public. Such persit application or persit, or portion thereof,
shall-further be available upon request for che purpose of reproduction."
Tais language is different fros that in section 308 of the FK?CA.
Section 308 is the basic indorsation gathering authority of the FKPCA.
Paragraph (b) of section 308 states "[a]ny records, reports^ or isfor-
/
nation obtained under this section.. .shall be available to the public^
except iraon a showing satisfactory to the Administrator by any person
that records, reports, or infpr=ation. or particular part thereof (other
than effluent data), to vhich the Administrator has access under this
section, if sade public vould divulge.nethods or processes entitled to
protection as trade secrets of such person, the Administrator- shall
consider such record, report, or information, or particular portion
thereof confidential in accordance vith the purposes of section 1205 of
title IS of the United States Code...."
The inconsistency between the language of section 402(j> and that
of section 308 was brought to the attention of the House Committee on
Public Works in a letter dated December 13, 1971, fros William Rackilshj-
Administrator of SPA. .Congress chose to treat the information covered1
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KAR 22 1S78
*-" w
SU2JZC7: Cfcs£±deat±ality of KFDZS Permit Applications
Joan Z.
General
70: Thomas C. Jorling
Assistant Administrator for
Water and Hazardous Materials C*3-556)
. Harris Purrlrg
A cc 4 e ^5** ** A f*^^ *^^ C^?"5 **fl?*
4^5 5 ^^ ^^^M^ A&MMM^MMB* ^^» ^^U ^
for Z=force=sas (ZN-329)
Atrached is a Class Detprri-aatiaa I have issued ccmceraius
status of potentially confidential Business inf orsariora contained in
KPDZS permits and H?D£S per=it applications. I have' concluded that
seczian 402 (j) of the F«?CL requires that N?D£S permits an'd per=i£
applications be sade public notwithstanding the facr that sose of the
information contained in then vould otherwise be .treated as confi-
Class Deter=lnation'vill-be xised by this office and the
Sagional Counsels ia, ^•aV't-; final confidettialiry deter=inations
under the regulations in 40 CF2. ?art 2, Sub part B. Any request for
/•grf.-giqg^— tgi-'i-y of. information in a permit application, or permit would,
be denied citing the Class .Determination. The applicant vould be
given 10 days notice prior to disclosure .in vhich to seek a judicial
remedy. Ac the end of the 10-day notice period -.the information vould
be cade available to the public.
An important part of implementing this Class Determination is to
'inform the various I?A regions and State agencies of the decision. I
have informed the S-egiccai Counsels of the Class Determinacio-n and of
the vay in vnich it is to be implemented. Tou will need to inform
your counterpart offices in the Regions and the States.
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I think it is also important that chis be reflected la the
regulations, in she application forms, aad in any informational
materials used by EPA co explain the N?D£S program.
?roa vbat I have bees able to determine, this decision may be *
change frea past practice ia. the treatment of inforsadon ia K?D£S
perzit applications. I believe that la the past, section 402(3) was
overlooked, and cost offices treated information ia KPDES persit
applications the saae as section 303 information. Accordingly, it
take tiae to bring everybody up to speed on this change.
If you have questions about hov your offices should icplesent the
Class Determination or other related matters, contact. Jaaes Kelson, at
755-0794.
Attachment
/. \\n
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4
1= is clear from the language of section. 402(j) and the
legislative hisrory of :chac provision tha: Congress Intended se:cioa
402 (j) to be-a disclosure mandate is contrast to the basic approach.
of section 303 which provides protection for trade secret information.
Accordingly, Z?A is required to cake public NPDES .permits and K?D£S
permit applications.
The NPDES permit application is-a staadard fora specified by Z?A.
It asks the applicant to supply certain specific information, la
soae cases, there is insufficient space for the applicant to supply
all of the requested information. In those cases the applicant attaches
additional sheets vith the further information. For purposes of section
402 (j), the K?DZS per=it application required to be cade public is the
application fora itself and any attachments that are used to supply
information requested by the application fora. Any information
obtained by Z?A that goes beyond that asked for in the application*
whether submitted by the applicant or obtained by EPA under authority
such as 40 CTZ. 125.13, is not considered part of the permit application.
as contemplated by section 402(j). This additional-information vLH
be treated in accordance vith the procedures of 40 CFS 2.302.
If,an..applicant has claimed as''confidential • arry,information
contained .in the NFD2S permit application or the K?DSS permit, confi-
dential treatment will be denied in accordance with this Determination
and notice given to the applicant in accordance vith 40 CFE.2.205(f).
*£. semstein Date
General Counsel (A-130) .
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3
by section 402 (j) differently from the information obtained
section 308; la all versions of the bill chat became the 1972
•ameafi-fnts to FW?CA, che same basic approaca of requiring public
disclosure-of N7DZS permits and permit applications, cas followed.
The only amendments to section 402(j) were to eliminate a specific
enumeration of the offices in which copies would have to be kept.
In Senate Report 92-414, October 28, 1971, at page 72, the Senate
Committee on Public Works cade the following cemmentsr
As. essential element in any control program involving the
cation's waters is public participation. The public
must have a genuine opportunity to speak on the issue
of protection of its waters. The Cocn^ittee has therefore
established requirements to provide opportuniry for public
• hearing by the Tederal Government,, or if Stats participa-
tion is approved by the Administrator, the State, .and other
provisions to sake available to the public all relevant
information surrounding a discharge source and the control
requirements placed on it. This includes the deposit of
any permit, and the conditions thereto, in a place of ready
public access. The scrutiny of the public and the exercise
of authority under this section, is extranely important to
insuring expeditious implementation of che authority .and a
high level of performance by all levels of government and
discharge sources.
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II.A.4,
"Certification and Permitting of Dischargers Located on Waters Forming
Boundaries Between States", dated April 19, 1978.
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i -v\i/^- 1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\f- ^ WASHINGTON. D.C. 20460
APR 1 9 197B
* or
CINEMA!. COUNSEL
n - 3-£ - V
MEMORANDUM
TO: Assistant Administrator for
Enforcement
Regional Enforcement Directors
NPDES State Directors
FROM: Joan 2. Bernstein
General Counsel (
SUBJECT: Certification and Permitting of Discharger's Located
on Wateis Forming Boundries Between States
QUESTIONS PRESENTED
When a facility is located within one State, but the end
of the discharge pipe is located within the waters of another
State, which State has certification rights pursuant to
Section 401 of the Clean Water Act ("The Act")? If the Section
<*02 NPDES permitting authority has been transferred by the
Administrator to the States, which State has the 402 permitting
authority?
FACTS
On February 16, 1978, the Atomic Safety and Licensing
Appeal Board of the Nuclear Regulatory Commission issued a
decision which interpreted Section 401 of the Act. The
Board determined that the proper State to issue a certifica-
tion is the State which has jurisdiction over the navigable
waters in which the discharge originates rather than the Stats
in which the facility is located. The Board noted that:
"we are prepared to give substantial weight
to the interpretation given a statute by the
agency Congress entrusted with its administra-
tion. In this case, we acknowledge that EPA
is that Agency with respect to the Water Act.
But EPA has not specified how Section 401
controls the outcome of the issue
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before us. We are, therefore, left to do
so ourselves." (PUBLIC SERVICE COMPANY OF
INDIANA, INC., Docket Nos. STN 50546,
STN 50-547, slip op. at 20-21, footnotes
omitted).
On February 28, we received a letter from the attorneys
for the Public Service Company of Indiana requesting that we
address the legal issue which is before the NRC. In addition,
we had informal communications with representatives from the
NRC staff and the Commonwealth of Kentucky similarly request-
ing that we address the issue. On March 20, we wrote the
Secretary of the NRC and notified him that we would prepare
a legal opinion on the 401 certification question.
The proposed Marble Hill Nuclear Generating Station will
be located in Indiana. Its discharge will enter the Ohio
River, which forms the border between Kentucky and Indiana.
Apparently, the precise border is located at the low water
mark on the Indiana side of the river.I/
. The legal question raised is of significance to
this Agency because there are 29 rivers in the United States
that are boundaries between two States. While the boundary
line between the States is usually the midline or thread of
the channel of the stream, this is not always the case. For
some rivers the boundary line is the high-water mark or low-
water mark on one side of the river.
The boundary line creates questions not only in regard
to certification under Section 401 of the Act but also in
regard to the question of'which State has the permitting
authority under Section 402 of the Act. In this opinion
we shall address both issues.
ANSWER
The State in whose waters the discharge originates is the
certifying authority pursuant to Section 401 of the Act.
Section 401(a)(l) provides that whenever the construction or
operation of a facility "may result in any discharge into the
navigable waters", the certifying State shall be the one
T7There is a factual question as to whether the discharge
originates in Kentucky or Indiana waters. As noted in our
March 20 letter, we shall not address this factual question.
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"in which the discharge originates or will originate." .While
it might be argued that a discharge of pollutants actually
"originates" where the manufacturing or industrial facility
is located, rather than at the end of the discharge pipe,
the entire structure of the Clean Water Act, its legislative
history, and intent clearly establish that the State whose
waters are affected by the discharge is the proper certifying
State.
Similarly, the State in whose waters the discharge or-
iginates is the Section 402 permitting authority. Section
402(b) provides that a permitting State shall "administer
its own permit program for discharges into navigable waters
within its jurisdiction."
The State in which the facility is located has rights
pursuant to Section 401(a)(2) and Section 402(b)(5) only
to the extent that the quality of its waters is affected
by the discharge.
DISCUSSION
The Clean Water Act is a comprehensive statute designed
to reduce and ultimately to eliminate the discharge of pollu-
tants into the nation's waters. Tne Act provides for a deli-
cate partnership between the Federal government and the
States in achieving this result. A major responsibility
of the Federal government under tne Act is the development
and promulgation of uniform national technology-based stand-
ards for categories and classes of industrial dischargers.
At the same time, the States are granted the authority (with
Federal support and in some cases oversight) to institute
a range of more stringent, more comprehensive requirements
to assure protection of the navigable waters within each
State.
Pursuant to Section 510 of the Act, the States are
empowered to develop more stringent water pollution control
requirements than those developed by EPA. Section 510(2)
also explicitly retains the authority of each State to control
the waters within its jurisdiction.
In addition tp these general powers, the Act provides
that States shall have a series of rights and responsibilities
based upon the State's jurisdiction and control over waters
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of the United States. Section 208(a)(2) of the Act requires
a State or its designated areawide agency to develop compre-
hensive pollution control plans for areas of the State which
have "substantial water quality control problems." Clearly
the State whose waters are affected must take the lead role
in devising a plan to protect its waters.
Under Section 303 of the Act each State is required to
develop water quality standards for all waters within its
jurisdiction. Such standards consist of a designated use/uses
of the stream (e.g. "protection and propagation of fish and
wildlife") and criteria necessary to support the use, (e.g.
"not less than 5 mg/1 of dissolved oxygen"). Prior to the
passage of the 1972 Amendments, such water quality standards
were the major water pollution control mechanism under the
Federal law. See State Water Control Board v. EPA, 426 U.S.
200, (1976). While the role of water quality standards was
somewhat diminished by the 1972 Amendments, the standards
form a major basis for numerous State and Federal programs.
The difference between- the designated standards and the actual
ambient water quality may provide the basis for Section
205 planning. Under Section 303(d) of the Act, States must
identify those streams where the federal technology-based
standards are insufficient to meet the designated water
quality standards. The States are required to develop maximum
daily loads for such streams and to develop more stringent
effluent limitations which will achieve the standards as
part of the continuing planning process under Section 303(e).2y
These State plans, laws, regulations/ and other require-
ments are translated into limitations applicable to individual
point source dischargers through the NPDES permit program .
pursuant to Section 402 of the Act. And under Section 208(e)
of- the Act, no permit can be issued which is in conflict
with an approved 208 plan. Under Section 301(b ) (1)(C), a
discharger must achieve by July 1, 1977, any more stringent
limitation necessary to meet the requirements of State law,
17In addition, Section 305(b) requires each State, to
lubmic biannually .a report describing the water quality
of all navigable waters within the State and the steps
which will be taken to improve water quality.
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including water quality standards. The 402 permitting authority
is required to assure that permits are consistent with
Sections 208(e) and 301(b)(1)(C), and thus consistent with
the requirements of State law including State water quality
standards and limitations developed pursuant to such standards.
Section 401 of the Act provides another mechanism to insure
that NPDES permits (as well as other Federal licenses and
permits) meet the requirements of state law, particularly
State water quality standards. Section 401 has its origins
in Section 21(b) of the Water Quality Improvement Act of
1970, April 3, 1970, ?.L. 91-224, 84 Stat. 91. This provision
required that any applicant for a federal license or permit
which might result in a discharge into navigable waters must
provide the permitting authority with a certificate from the
State in which the discharge originates or will originate
that:
"There is reasonable assurance, as determined
by the State or interstate agency that such
activity will be conducted in a manner which
will not violate applicable water quality
standards."
Section 21(b)(l) also provided that if the standards had
been promulgated by the Secretary of the Interior, the certifica-
tion should be from the Secretary. Section 21(b(9) further pro-
vided that if there were no applicable water quality standards,
no certification should be required. Section 2Kb) therefore re-
cognized that the appropriate certifying authority is that which
has developed and implemented water quality standards for the watej
body into which the discharge originates, since only the authority
that develops and implements the standards could provide the "rea-
sonable assurance" that the standards won't be violated.
The substance of Section 21(b) became Section 401 of the .
1972 Federal Water Pollution Control Act Amendments. The
State was no longer required to directly certify that its
water quality standards would be met by the permit, but
was instead required to certify that the discharge would
comply with "the applicable provisions of Sections 301,
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302, 3Gb and 307 of this Act."V It is clear from the
legislative history of the 1972 Amendments that the major
purpose of Section 401 was to allow a State to assure that
its water quality standards would be met.
As noted in the Senate Report:
"The purpose of the certification mech-
anism provided in this law is to assure
that Federal licensing or permitting agencies
cannot override State water quality require-
ments."
A Legislative History of the Water Pollution Control Act
Amendments of 1972, Senate Committee on Public Works, Com-
mittee Print, S3rd Cong. 1st. Sess., 1973 (''Leg. Hist.")
at 1437.
In his statement on the Conference Bill, Senator Muskie
further explicated this concern:
"If a State establishes more stringent
limitations and/or time schedules pursuant
to Section 303, they should be set forth in
a certification under Section 401." Leg.
Hist, at 171.
3/ Section 401 was amended by the Clean Water Act of 1977
to include Section 303 in the list of enumerated sections.
As stated in the Conference Report:
The inserting of Section 303 into the
series of sections listed in Section 401 is
intended to mean that a federally licensed or
permitted activity, including discharge permits
under Section 402, must be certified to comply
with State water quality standards adopted under
Section 303. The inclusion of Section 303 is
intended'to clarify the requirements of Section
401. It is understood that Section 303 is re-
quired by the provisions of Section 301 . . .
Section 303 is always included by reference
where Section 301 is listed. (House of Repre-
sentatives, Report No. 95-830, 95.th Cong. 1st
Sess. December, 1977 at 96)
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III. ADMINISTRATIVE ENFORCEMENT
A. ADMINISTRATIVE COMPLIANCE ORDERS
-------
-------
III.A.I,
"Effect of Compliance with Administrative Orders", dated June 1984,
-------
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it t
* UNITED STATES ENVIRONMENTAL FPCTECTIDN AGENCY
WASHINGTON. D.C. 20^60
or«-icc er
L. cou-scu.
ME10RAKDUM
SUBJECT: Effect of Compliance With
Administrative Orders .. '
'lx
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III.A.2.
"Use of Stipulated Penalties in Administrative Orders on Consent under the
CWA", dated September 6, 1985.
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I
^OSpJ * UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
^4^,-
WASHINGTON, D.C. 20460
OFFICE OF ENFORCEMENT
AND COMPLIANCE
' MONITORING
MEMORANDUM
SUBJECT: Use of Stipulated Penalties in Administrative
Orders on Consent under the Clean Water Act
FROM: Glenn L. Unterberger
Associate Enforcement Counsel
for Water
TO: Paul A. Seals
Regional Counsel, Region VI
I am responding to Region VI 's request for specific guidance
on whether the use of stipulated penalties in administrative
orders is perraissable under the Clean Water Act, Section 309.
After extensive legal research by both my office and the
Office of General Counsel, and consultation with the Department
of Justice, it is our judgment that, as a matter of policy, EPA
generally will not include stipulated penalties in administra-
tive orders on consent under the Clean Water Act. The one
exception to this policy (which probably has limited practical
effect) is that EPA may consider using administrative orders
on consent with a provision for stipulated penalties under the
following terms:
1) that stipulated penalties provided for in an
administrative order on consent (possibly though
a confession of judgment clause) are collectible
only through the commencement of an enforcement
action for violations of the order and the
statute or permit in federal district court; and
2) that any such order shall also provide that,
irrespective of the penalty amounts so stipulated
or confessed in judgment, the government shall
reserve tne right to seek whatever penalty amount
it. deems appropriate in an action to enforce the
terms of the order and will not be bound by the
amounts stipulated.
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- 2 -
By this approach, we remove any doubt of the enforceabilit
of the terms of the order by retaining the responsibility for
imposing civil penalties or other appropriate remedies with
the court as explicitly authorized in CWA Sections 309(b) and
(d). In doing so, we also act consistently with the letter of
28 U.S.C. §§516 and 519 and the spirit of the Memorandum of
Understanding between EPA and the Department of Justice that
the Department settles and compromises claims of the United
States which EPA is to bring through litigation. Also, the
reservation clause ensures that if additional violations or
other pertinent facts come to light -after the AO on consent is
entered into, tne government will not be limited to the penalties
contained in tne AO.
If a Region chooses to employ the practice where the
requisite criteria can be met, it should be done on a highly
selective basis and only when, in the opinion of the Regional
office, an administrative order without these stipulated penalty
provisions will not result in final compliance as.quickly or
as well..
Since orders on consent with stipulated penalties are
inherently more complex than traditional administrative orders
and involve negotiations which may affect subsequent judicial
enforcement actions, the Office of Regional Counsel must be
involved from the outset, if their use is contemplated.
The above guidance may be short-lived, since tne proposed
amendment to the Clean Water Act giving EPA administrative
penalty authority, if passed, will also probably give us stronger
authority to use stipulated penalties in consent AOs. Should
the administrative penalty authority amendment be enacted,
we will develop guidance on the use of such authority, with the
expectation that stipulated penalties in consent AOs meeting
certain procedural preconditions probably will be acceptable.
cc: Associate Enforcement Counsels
Regional Counsels
Bill Jordan
Coke Cherney
David .Buente
OECM-Water Attorneys
trr
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III.A.3,
"Remittance of Fines and Civil Penalties" dated April 15, 1985. See GM-38,
-------
-------
III.A.4.
"Recommended Format for CWA Section 309 Administrative Orders", dated July
30, 1985 (Incorporated in III.A.5).
-------
-------
III.A.5,
"REFERENCE DOCUMENT ON GUIDANCE AND PROCEDURES FOR ADMINISTRATIVE ORDERS
ISSUED UNDER SECTION 309 OF THE CLEAN WATER ACT" dated September 26, 1986,
Cover Memorandum, Table of Contents and Section I only.
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•>*
i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. O.C. 20460
SEP *9 1986
OP'ICVOP
MEMORANDUM , - ,•
SUBJECT: Reference Document on Guidance and Procedures for
Administrative Orders Issued under Section 309 of the
Clean Water Act
FROM: Jame^^J^TfTderT Director
Office of Water Enforcement and Permits (EN-338)
TO: Water Management Division Directors
Regions I-X
The attached Reference Document on Administrative Orders was
recently completed by the Enforcement Division, Office of Water
Enforcement and Permits, to address varied questions that may arise
on Administrative Orders (AOs) authorized under the Clean Water
Act. It is designed to provide, in one location, all pertinent
information on the preparation and implementation of AOs. The
attached Reference Document we believe, contains all pertinent
guidance and procedures needed for day to day operations and for
compliance activities relating to administrative orders.
This project continues our effort to produce manuals and
centralized reference material for all personnel involved in the
development and tracking of enforcement actions. It should be
noted that the contents such as the descriptions of procedures
relating to tracking and processing of AOs may change over the 'next
few years, and will therefore need to be updated. We will notify
you as changes are made.
We would like to thank all those parties from the Regional
Offices and the Office of Enforcement and Compliance Monitoring for
their comments and the extensive reviews they provided. In addition
if you have questions or comments on the content, or if you believe
we have missed some information that would make this a more compre-
hensive document, please contact Bill Jordan, Director, Enforcement
Division (FTS/475-8304) or Virginia Lathrop, on his staff (EN-338),
(FTS/475-8299).
Attachment
cc: Glenn Unterburger, OECM
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REFERENCE DOCUMENT
Guidance and Procedures for
ADMINISTRATIVE ORDERS
Issued under Section 309
of the Clean Hater Act
September 29, 19*6
-------
PFFFRENCF DOCUMENT - Guidance and Procedures for Administrative
Issued Under Section 3n9 of the Clean f-'ater
I . Guidance
A. ^commended Format <*or Administrative Orders (AQ's) -
'•emorandum ^ro*» Rebecca Hanger to Reoional r>i rector* ,
Water Manaa«»ment Division, 7/30/85. (Includes an AO
evaluation checklist in addition to format and model
order)
*. Guidance on Selected TOoics Related to Limitations and Use
o* AO's - Tonics as AOs on Consent; Refrainino from use
of AOs instead of issuinrr Hermits.
• c. . List of Guidances on Administrative Orders that are
of historical value.
IT. Specific Ouestions and Answers
III. Results of Studies/Assessments fomnleted by Contract
A. Proper Formattinn and Content of AO's - Phase I - Pec. 31,
1984.
a. Timeliness and F.F^ectiv«»ness of AO's Includino close ouf.
and continued compliance after close out - Phase II,
October H»
C. Assessment of AO's which Were Mot Closed Out and for Closed
Out A0.«, Analysis of Sustained Compliance Thereafter. (To ^
completed September 30, 1986)
IV. Kev Steps in Preparino and Tracki.no AO's
A. Track ino Compliance Dates in PCS and reportino requirements
of ONCR.
». Office of Water trackina.
C. Clos« out procedures
4
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SECTION I
GUIDANCE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0.C. 20400
JUL301985
MEMORANDUM
SUBJECT:x-?,e commended Format for Clean Water Act
i Section 309 Administrative Orders
WAT"
K<
Re
PROMs Rebecca W. Hanmer, Director
Office of water Enforcement and Permits (EN-335)
TO: Water Management Division Directors
Regions I - X
One of the most frequently used Environmental Protection
Agency mechanisms in the formal enforcement process is the
Administrative Order (AO) issued under Section 309 of the Clean
water Act. It is our belief that AO's should be used in a
consistent and effective manner since they are a major part of
the enforcement scheme. For this reason, the Office of Water
Enforcement and Permits has undertaken an effort to assess AO
content and format during the past year. The outcome of that
assessment was the draft Recommended Format for Administrative
Orders forwarded to you on May 9, 1985. We have received
comments and suggestions from several Regions which were utilized
in preparing the final documents. Attached you will find the
final Recommended Format for Clean Water Act Section 309
Administrative Orders (Attachment 1).
The Recommended Format was developed with the cooperation
and assistance of the Office of Enforcement and Compliance
Monitoring. The purpose of the Recommended Format is to provide
a general guide) which delineates (1) the specific statutory
requirements (such as the requirements of Section 309(a)(4) on
opportunity for a recipient to confer with the Administrator
on violations based on failure to submit information); and
(2) options and suggestions on format for Administrative Orders
(such as the option of including violations in a separate
section after Findings of Fact). The Recommended Format,~as
utilized by the Regions, should result in more effective and
even-handed national enforcement through Administrative Orders.
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In addition to the Recommended Format, we are forwarding the
Checklist on Administrative orders (Attachment 2). The Checklist
should-be used for reviewing EPA and State-issued AO's. There will
obviously b« some variation among States with regard to AC'S;
however, the use- of a Checklist should assure that the state-issued
AO's are complete and enforceable.
* • •
The new guidance replaces a document dated April l&v-L97S
that was developed by the Office of Water Enforcement.- It should
be noted that the statute was revised twice since 1975. In
particular, the new guidances discourages use of successive AO's
for the sane violation; clarifies which legal authority (e.g..
Sections 308 and 309) EPA should cite as the basis for certain
requirements imposed through an AO; clarifies the scope of require-
ments which EPA may impose through AO's; identifies sanctions
available for AO violations; and sets out sample provisions
which AO's should Include to clarify the legal effect of the
Order.
In the coming fiscal year, the Office of Water Enforcement
and Permits, with extensive coordination with the Office of
Enforcement and Compliance Monitoring (OECM), will develop further
information on the use of Section 309 Administrative Orders. Some
of those documents will cover: use of AOs on consent (bilateral
and joint signature); principles for negotiation of bilateral
orders especially for National Municipal Policy; use of multiple
AO's and alternatives to AO's for the same facility when an AO
is violated; and increased use of Section 308 to require information
(including use of show cause proceedings).
If you have any specific questions on the above, please
call me (FTS-475-8488) or Rill Jordan, Director, Enforcement
Division (FTS-475-8304). The staff contact is Virginia Lathrop
(FTS-475-8299).
Attachments
I-A-2
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ATTACHMENT 1
Recommended Format for Clean Water Act Section 309
Administrative Orders
The following is the recommended format and content for an
Administrative Order (AO). Examples and suggested wording are
included at various points in the discussion and in the satrole
AO (Attachment 1-0). Adherence to the Recommended Format should
result in more effective' and evenhanded national enforcement
through Administrative Orders.
Introduction
The following should be followed for the vonue, title,
docket identification and preamble paragraph.
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION
IN THE MATTER OP DOCKET NO. XI-R4-06
Wastewater Treatment Works 14
Sludge River Pollution Control District
Sludge Falls* Columbia
PROCEEDING UNDER SECTION
309(a) of the
Clean Water Act, 33 U.S.C. FINDINGS OF VIOLATION
Section 1319(a); in re AMD
NPDES PERMIT No. ORDER FOR COMPLIANCE
"The following FINDINGS are made and ORDER issued pursuant
to the authority vested in the Administrator of the United States
Environmental Protection Agency (EPA) under Section 309 of the
Clean Water Act* 33 U.S.C. S1319, (hereinafter the Act) and by
him delegated to the Regional Administrator of EPA, Region XI
(and redelegated by the Regional Administrator of Region XI co
the Director, Water Management Division, Region XI)."
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Venue and Title
The Region identification is included to establish the
specific venue of the issuing authority. The full address of
the Region is to be in the letterhead or under the Regional
Administrator'* (or his designer's) signature to the Order and
on the blue back cover (which is optional).
• '+ • '
Docket Number
j
To identify the proceeding, a docket number is required.
To avoid confusion, the NPDES number should not be used as the
Docket Number. However, the NPDES number, it any, should be
referred to under the proceedings identification in the title.
The docket number "XI-84-06" identifies the Order a* being the
6th Order issued in 1984 in Region XI. An Administrative Order
docket should be kept separate from any other docket. However,
if a common docket is kept then a prefix should be added to the
docket number, e.g., "XI-AO-84-06".
Preamble Paragraph
The preamble paragraph is important not only to establish
the Administrator's authority to issue the Order but also to
establish the delegation of authority to the Regional Administrator.
If the Regional Administrator has redelegated his authority to
the Director of the Regional Water Management Division, this
redelegation should also be stated here or in the preamble to
the Order portion of this document. It should be noted that
there is no authority to redelegate this authority to other EPA
Regional staff below the Division Director level. If the
redelegation is asserted here, the paragraph should be amended
by adding:
"... and redelegated by the Regional Administrator of
Region XI to the (undersigned) Director, water Management Division,
Region XI".
The Administrative Order can be signed by a duly authorized
Acting Regional Administrator or Director. However, the Agency
should be prepared to show that the person signing as Acting
Regional Administrator or Director has the requisite authority
to sign th» Order.
I-A-4
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FINDINGS OF FACT
The Findings should adequately set forth the specific permit,
statutory (and regulatory)* requirements violated and the specific
nature and dates of the violations. In order to avoid difficulty
in determining from the face of the Findings whether the order
was necessary and timely, and the remedy was appropriate, the
Findings and Order should be able to stand without reference to
extraneous facts. The Findings should speak to all tfhe pertinent
facts and law much as a complaint in a civil action does. With
these observations in mind, the following recommendations are
made as to the specific facts to be alleged in the Findings.
Status of Violator
Findings of Fact should first identify fully the entity to
whom the order is to be issued and define its legal status
(i.e., corporation, partnership, association, state, municipality,
commission or political subdivision of a state). Clearly
identifying the orderee limits the possibility of challenges to -
jurisdiction or venue and establishes a record upon which
subsequent enforcement actions may rely. The Findings should
next establish the orderee 's status under the Clean water Act,
(i.e., permittee, industrial user, control authority, etc.) and,
in the case of permittees, the permit number, date issued, and
current permit status. The Findings should name the receiving
stream into which the violator discharges and should establish
the violator discharges to "navigable waters" under Section
502(7) of the Act through a specific point source as defined in
Section 502.
off Violations
Section 309(a)(5)(A) requires that all orders ". . . should
state with reasonable specificity the nature of the violation
. . . ." It is imperative that the Findings contain the specific
permit provision or statutory or regulatory requirement which
has been violated and the authority by which it was imposed on ,
the orderee. Next, the evidence or basis for the specific
violation (such as ONR, inspection report, RMR) and dates of
violation should be set forth concisely. In cases of more than
one violation, identify what the documentation is for each and
give the specific dates of violation. (In instances where only
approximate; dates are known or where there is a continuing
violation say "on or about* or "beginning on or about".]
Alternatively the violations may be set off in a separate section
entitled "Violations" which can follow the "Findings of Fact.*
An AO should not set out a regulatory requirement that was violated
without setting out the underlying statutory requirement. The
Section 309(a)(3) authorizes AO's for violations of permit and
statutory provisions.
I-A-5
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Where the) violation is based on a failure to provide required
information, a finding can usually only state that the required
information was not received by the agency. In those cases, the
lack of receipt of the required information must serve as .the
basis of the violation. Section 308 violations haver additional
requirements as described below.
CWA Section 308 Violations ' ,
Administrative Orders issued for violations based on a
failure to submit information requested under Section 308 of the
Act do not take effect until the person to whom it is issued has
had an opportunity to confer with the Administrator (or his or
her designee) concerning the alleged violation. (See CWA
'Section 309(a)(4)). It-is essential that such person be provided
with a reasonable opportunity to confer. Any order issued for a
Section 308 violation either exclusively or in conjunction with
other violations should provide for a period of time in which
the orderee may confer with an authorized person designated in
the Order. If an opportunity has been provided prior to the
issuance of the order, the order should so state and set forth
the documentation of the opportunity to confer and the outcome
of the conference, if any.
Prior Enforcement Contacts
Administrative Orders frequently set forth prior contacts
with the orderee in an attempt to obtain compliance. Generally,
this is a good practice since it helps to build a record and may
provide additional support in any subsequent enforcement action.
This can be done by cataloguing the meetings, letters, telephone
calls, etc., made in an attempt to secure, voluntary compliance
or by stating that repeated attempts were made. The repeated
attempts may be set out in an attached summary or log of meeting*,
notices, letters, and telephone calls and dates thereof, along
with dates of responses from the orderee, if any (see Attachment
1-A).
Other Findings
In certain circumstances it may be necessary or useful to
include other findings which are supportive to the specific
requirements of the order (e.g., "the company's treatment works
are currently capable of meeting the effluent limits contained
in its permit* or "the POTW has adequate authority to .enforce
the categorical pretreatment standards"), whether or not to
include such statements must be determined on a case by case
basis but, if included, should be incontrovertible facts.
I-A-6
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ORDER FOR COMPLIANCE
The format for the Order should be as follows: .
Order
•Based on the foregoing FINDINGS and pursuant to the
authority vested in the Administrator, Environmental. Protection
Agency, under sections 308 and 309(a) of the Act, and" by him
delegated to the undersigned (or if the Regional Administrator
redelegates his authority to the Division Director, add' after
•of the Act" - "and by him delegated to the Regional Administrator,
and redelegated to the undersigned"), it is hereby ordered:".
If the delegation statement is stated in the Preamble, this
statement may simply be: "*ased on the foregoing Findings, and
pursuant to the authority of Sections 308 and 309(a) of the Act,
it is hereby ordered:"
Terms of the Order
Section 309(a)(l) and (a)(3) authorizes the Administrator to
issue an order requiring compliance with enumerated sections of
the Act or a condition, limitation or permit requirement implementing
the enumerated sections of the Act. Any requirement contained in
the order must be directly related to achieving that compliance
with those legal requirements. The terms of the order must set
forth what EPA specifically expects the Orderee to do in order to
achieve and maintain compliance.
Section 309(a)(5)(A) sets forth the time periods by which
the orderee must comply. In cases of an interim compliance
schedule or an operation and maintenance requirement the time
for compliance may not exceed thirty days. In eases of compliance
with a final deadline, the time for compliance must be "reasonable"
as determined by the Administrator, taking into consideration
the seriousness of the violation and past efforts of the orderee..
Every order must contain a specific final date by which the orderee
must achieve compliance (i.e., cease its violation(s)) consistent
with the statutory language.
Although some Orders have included a prescribed method by
which an orderee is to achieve compliance, specific prescribed
steps or methodologies (such as a treatment technology) may be
difficult to enforce. Because Section 309 specifies in explicit
terms only that AO's require compliance by a date certain the more
closely a requirement in the AO is related to actually achieving
compliance, the sounder the legal position to include that require-
ment. Section 308 of the Act can provide substantial support in
this area by requiring reporting of the specific steps or methods.
I-A-7
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The Orders containing interim milestones leading to final
compliance should include reporting requirements under Section 308.
The order should specify the manner and timeframe for reoorting
compliance with the terms of the order to the issuing authority.
The order should contain requirements for reporting on the"
compliance progress and submitting suitable documentation to
show the Orderee has taken action to meet the AO requirements.
The attached sample AO sets forth sample language on order-
requirements (Attachment 1-D), as well as a sample blue *bacl«
(Attachment 1-C) and cover letter (Attachment 1-B).
Additional Provisions
It has been the long term practice of many of the Regions
to include standard provisions regarding additional remedies*
nonwaiver of permit conditions, etc., in all administrative
orders or as part of the cover letter accompanying the AO. This
practice should be used by all the Regions for every order issued.
In addition to promoting national consistency, it alerts the
violator to the array of sanctions which could be used should
additional enforcement be necessary and helps encourage compliance
with the Order as issued.
The following; are sample provisions which should be added to
Administrative Orders singly or in combination and may be modified
based on the particular facts of the case. They may also he
included in the cover letter.
Non Waiver of Permit Conditions:
"This ORDER does not constitute a waiver or a modification
of the terms and conditions of the Orderee's permit which
remains in full force and effect. EPA reserves the right
to seek any and-all remedies available under Section 309(b)
(c) or (d) of the Act for any violation cited in this ORDER'.*
Potential Sanctions for Administrative Order Violations
(for Non-Municipals):
"failure) to comply with this ORDER or the Act nay result in
civil penalties of UP to $10,000 per day of violation,
ineliqibility for contracts, grants or loans (Clean Water
Ace* Section 508) and permit suspension."
General Disclaimers!
"Issuance of an Administrative Order shall not be deemed an
election by EPA to forego any civil or crininal action
to seek penalties, fines, or other appropriate relief under
the Act."
I-A-8
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•Compliance with the terms and conditions of this ORDER
shall not be construed to relieve the orderee of it*
obligations to comply with any applicable federal, state
or local law.*
Administrative Action Resulting in Ineligibility for federal
Contracts, Grants or Loans:
•Violations of this order may result in initiation of Agency
action to prohibit the facility from obtaining Federal
contracts, grants, or loans pursuant to Clean Water Act,
Section 508, E.O. 11733, and 40 CFR Part 15."
Effective Date of the Order
When the Order does not address a violation of a requirement
to provide information under Section 308, the ORDER can merely-
recite that:
"this ORDER shall become effective upon its receipt by (or
service upon) said COMPANY."
For Section 308 violations where an opportunity for conference
before the ORDER can become effective is reauired by section 309
and this was not done prior to the issuing of the ORDER, the
last paragraoh should read:
"The COMPANY shall have the ooportunity, for a period of
( ) days from receipt of this ORDER, to confer with
the following designated Agency representative: Mr. N. Force,
Director, Water Management Division, Environmental Protection
Agency, Room 5013, Region XI, Old National Bank Building, 1414
Main Street, Brewsterville, Central!*, 11101, (555) 123-4567;
unless the Agency official issuing the Order decides otherwise,
this ORDER shall become effective at the expiration of said
period for consultation; and, the COMPANY shall have
(_) days from and after said effective date to comply with the
terms of this ORDER. To constitute compliance, material required
to be submitted by the COMPANY to the Agency must h#» in the hands
of the designated Aoency representative prior to the expiration of
said (_) day period."
Signing of the Order
When the Order is dated and signed, the name of the signing
official (Regional Administrator, or Director, Water Management
Division) should be typed below the signature, together with
the address of the Regional office.
I-A-9
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Other Considerations
The use) of legal blue-back at least on the primary copy of
the Findings and Order served, while not necessary, tends to
impress upon the person served of the legal seriousness of.the
action being taken. Attachment 1-C provides a proposed format and
content of the legal blue back. When a Order is issued to a
Corporation, a copy of the Order shall be served on appropriate
corporate officers. * - J
As in court actions, the order should be retained and nlaced
in a permanent file with the Docket Clerk, along with the affidavit
or certification of service attached. If service is made by
certified mail restricted delivery, a carbon copy of the letter
of transmittal, together with the Post Office mailing receipt
and the return receipt, when returned, should be stapled to the
front of the original Order, just as a return of personal service
would be.
Follow-up and File Closing
As good housekeeping practice, and more importantly, from
the standpoint of possible reference for or evidence in future
administrative or court actions, it is important that every file
contain, at the minimum, a closing memo to the files delineating
the final disposition of the matter. (The AO will only be closed
out when the facility has returned to compliance or when appropri
EPA action is taken, i.e., escalating the enforcement response.)
when a file is closed out, a brief letter should be sent to
the orderee with a carbon copy to Headquarters advising that the
action has been completed. Attachment 1-E is an example of what
a close out letter might look like.
I-A-10
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Prior Contacts with Orders*
ATTACHMENT 1-A
Despite repeated written and telephone renuests, as more ful
set out in the log attached as Exhibit ___ and made a part
by reference, the COMPANY, in violation of Section 303 of
Act, has not supplied the requested information.
LOG SAMPLE •_
s
12/04/83 DMR data showed significant noncompliance
(memo from X. Amin to file).
12/07/84 308 Letter sent to Company.
12/10/84 Plant Visit: Some data from inspection
(by N. Spector).
04/23/84 Telephone - N. Force to Company. Follow-up
requests for information on recent DMR from
Company. No information sent.
04/24/84 Telephone - N. Force to Company. To request
additional data by phone from Company. No
information obtained.
05/06/84 Note filed by N. Force - Mo letter or further
information fron Company.
I-A-U
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ATTACHMENT I-
February 21. 1985
CERTIFIED MAIL -
RETURN RECEIPT REQUESTED :
Ms. Alice Smith, Director * . .
Sludge River Pollution Control " ' :-
District
13 Plain Street
Sludge Palls, Columbia 12345
RE: NPDES Permit No. CL0003456
Dear Ms. Smith:
Enclosed is an Administrative Order issued to the Sludge River
Pollution Control District (SRPCD), by the Regional Administrator
of the Environmental Protection Agency ("EPA"), Region XI, under
Sections 308 and 309 of the Clean Water Act (the "Act"). The
Regional Administrator has found that the SRPCD has violated
Section 301 of the Act by failing to comply with certain
reouirements of its National Pollutant Discharge Elimination
System permit. Snecifically, during 1984 SRPCD consistently
violated its effluent limitations on ammonia and phosphorus and
intermittently violated effluent limitations for biochemical
oxygen demand and total suspended solids.
The Order, which is effective upon receipt, seeks to remedy the
violations by requiring SRPCD to submit a plan for meeting its
effluent limitations and requiring SRPCD to then implement the
plan and comply with its effluent.limitations.
This Order does not modify your current NPDES permit; nor will
compliance with the Order excuse any violation of the permit.
Failure to comply with the enclosed Order may subject the District
to further enforcement action. EPA may initiate a civil action
in federal district court for violations of an Order seeking
injunctive relief and civil penalties.
If you h«ve> any questions concerning this matter, please contact
Mr. Jones, an engineer in the Permit Compliance Section, at
222-3922.
Sincerely yours,
Prudence Purewater
Regional Administrator
Enclosure
cc: State Division of Water Pollution Control
State Deoartment of the Attorney General
I-A-12
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ATTACHMENT 1-C
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION
IN THE MATTER OF
SLUDGE RIVER POLLUTION CONTROL
DISTRICT
SLUDGE FALLS, COLUMBIA
PERMITTEE*
NPDES PERMIT NO. CL0003456*
PROCEEDINGS UNDER THE CLEAN
WATER ACT
AS AMENDED (33 U.S.C.
1319(a)(3))**
FINDINGS OF VIOLATION
AND
ORDER OF COMPLIANCE
Issued by:
Prudence Purewater
Regional Administrator
Environmental Protection Agency
Region XI
Federal Building
Hokum, Centralia 12345
* Where Permit has been issued.
** May also have proceeding under
33 USC 1313.
I-A-13
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ATTACHMENT 1-Q
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY .
REGION XI
IN THE MATTER OP ) DOCKET Number AO-aS-13
Sludge River Pollution
Control District
Wastewater Treatment Works 14
FINDINGS OP VIOLATION
AND
NPDES Permit No CL0034S6
ORDER FOR COMPLIANCE
Proceedings under Section )
309(a) of the Clean Water Act, )
33 U.S.C. 51319(a) )
STATUTORY AUTHORITY
The following PINDIMGS are made and ORDER issued pursuant to the
authority vested in the Administrator of the Environmental Protec-
tion Agency ("EPA") by Section 309 of the Clean Water Act/ 33
U.S.C. 51319, (the Act), and by the Administrator delegated to
the Regional Administrator of EPA, Region XI.
FINDINGS
1. The Sludge River Pollution Control District (the "District")
is a political subdivision of the state organized under the
laws of the State of Columbia and as such is a "person*
under Section 502 of the Act, 33 U.S.C. $1362.
2. The Sludge River Pollution Control District is the owner
and operator of a wastewater treatment facility which provides
advanced treatment to wastewater from the Towns of Locus and
^
Sludge Palls. The facility discharges pollutants into the
Sludge River, a navigable water of the United States as defined
by Section 502 of the Act, 33 U.S.C. 51362.
-------
3. The discharge of pollutants by any person into the waters of
the United States, except as authorized by an NPDES permit,
is unlawful under Section 301(a) of the Clean Water Act.
* %
4. On January 22, 1981, the District was issued National
Pollutant Discharge Elimination System (NPDES) Permit Number
CL00034S6 (the "Permit") by the Regional Administrator of
EPA pursuant to the authority given the Administrator of EPA
by Section 402 of the Clean Water Act, which authority has
been delegated by the Administrator to the Regional
Administrator. The Permit became effective on February 22,
1981, and will expire on February 22, 1986.
5. The permit authorizes the discharge of pollutants into the
Sludge River, in accordance with effluent limitations and
other conditions contained in the Permit. The limitations
contained in Special Condition Al of the Permit recu ire the
plant to achieve monthly average limits of 7 mg/1 for ftOD
and TSS, 1 mg/1 for total phosphorus (Total P) and 1 ng/1 -
for ammonia nitrogen (NH3-N).
6. Attached hereto and incorporated herein by reference is a
summary of effluent .data submitted by the District to EPA
for the) period from December, 1983 to November, 1984. The
data shows that:
a.) the District violated the monthly average limits for
TSS during two of the twelve months and violated the
maximum daily limits for BOD nine times and TSS
twelve times over periods of three months and five
months, respectively;
I-A-15
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b.) The District violated the limits on daily maxinum
concentrations thirty times Cor NH3-N and twenty
f
times for Total P over a six month oeriod;
c.) The District violated average monthly Concentration
limits for NH3-N and Total P each nonth over a
period of four months and six months* respectively.
7. EPA personnel performed a diagnostic audit inspection at
the facility during 1984. The purpose of the inspection
was to determine the cause of non-compliance with the
»
effluent limitations for NH3-H and Total P. The inspection
report was completed on December 8, 1984 and is attached
hereto and incorporated herein by reference as a part of
these Findings.
8. Based on the inspection report, the facility is currently
capable of meeting the concentration linits for NH3-N and
Total P if properly operated in accordance with Condition D2
of the permit which requires maximizing the removal of
those pollutants.
9. Based on the above, I find that the District is in violation
of Section 301 of the Act, 33 U.S.C. 51311, and permit
condition* implementing that section contained in a pernit
issued under Section 402 of the Act, 33 U.S.C. $1342.
I-A-16
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ORDER
Based on the foregoing FINDINGS and pursuant to the authority
of Sections 308 and 309 of the Act, IT IS HEREB* ORDERED:
*
1. Within sixty days of receiving this ORDER, the District
shall submit to EPA a plan for achieving conoliarnce
with the effluent limitations on NH3-N, Total p, BOD,
and TSS. The plan shall address the operational
problems cited in EPA's December 8, 1984, diagnostic
audit inspection report and identify any changes in
plant operation, funding, and staffing necessary to
meet the permit conditions.
2. The District shall immediately comply with all effluent
limitations contained in Special Condition Al of the
Permit for BOD and TSS.
3. The District shall immediately achieve and comply with
the interim effluent limitations specified in Attachment
A for NHj'N and Total P as an intermediate step toward
*
achieving final compliance. These interim effluent
limitations shall terminate on May 1, 1985. Durincr the
time period that the interim effluent limitations are
in effect, all requirements and conditions of the
Permit remain fully effective and enforceable.
4. By Hay 1, 1984, the District shall have implemented
any operational changes necessary to meet the permit
effluent limitations for NH3-N and Total P. The District
shall comply with all effluent limitations contained in
the Permit by May 1, 1985.
T-A-17 /
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5. Where this ORDER requires a specific action to be per-
formed within a certain time frame, the District shall
submit a written notice of compliance or non-compliance
with each deadline. Notification shall be-, mailed within
seven days after each required action.
6. If non-compliance is reported, notification shall
include the following information:
a) A description of the nature and dates of violations;
b) A description of any actions taken or proposed
by the District to comply with the requirements; •
c) A description of any factors which tend to
explain or mitigate the non-compliance;
d) The date by which the District will perform the
required action.
All reports shall be in writing and addressed as follows:
Director
Water Management Division
U.S. Environmental Protection Agency
Federal Building - Room 13
Hokum, Centralia 12345
I-A-18
14-
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7. Thi» ORDER does not constitute a waiver or a modification
of the terms and conditions of the District's permit,
which remains in full force and effect. EPA reserves
the right to seek any and all remedies available.under
Sections 309(5), (c) or (d) of the Act for any violation
cited in this ORDER.
8. Issuance of an Administrative Order shall not be deemed
an election by EPA to forego any civil or criminal action
to seek penalties, fines, or other appropriate relief
under the Act.
9. This Order shall become effective upon the date of
receipt by the District.
Dated this day of
Signed:
Prudence Purewater
Regional Administrator
U.S. EPA, Region XI
Federal Building
Hokum, Centralia 12145
I-A-19
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Mr. Adans Attachment i-j
Pe«rlt»t Company
RR 13 r
Burning River, Centralia 12346
°rder 'XI-AO-85-06
it NO. 1111H2)
D«ar Mr. Adans:
Sincerely,
Director
Water Management Division
cc:
Supoort Branch
I-A - 20
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ATTACHMENT 2
SAMPLE EVALUATION CHECKLIST FOR EPA13
CWA SECTION 309 ADMINISTRATIVE ORDERS or STATE EQUIVALENT
The purpose of this checklist is to serve as a guide for review of
State AO's or EPA's AO'S. ". .
1.
2.
3.
4.
5.
Region:
Statet
Date Issued:
[ J Major
[ ] Municipal
"
C
r
Minor
Non-Municipal
Yes Mo
6. Does the administrative order contain a title? { \ ( }
*7. Does the order establish the venue of the
issuing authority? (i.e., identification of
EPA Region). [ ] [ ]
8. Does the order provide the address of the
issuing authority? f ] t J
9. Does the order contain a standard docket
number? (i.e., X-AO-84-01: X'Region; AO»AO?
84»Year; 01-Serial Number). t J [ !
10. Does the order state the appropriate statutory
authority for issuing the order? (i.e., CWA
Section 309(a) and where reports or infornation
are required, Section 308>» . ( ) f I
'11. Does the order contain a suitable statement of
delegation? (i.e., Delegation should correspond
to/ signatory of order). (I f !
12. Does the) order identify the legal status of
the violating party? (i.e., legal status as a
corporation, municipality, etc.). II f '
*• These ouestions are of particular interest for EPA issued
Administrative Orders.
I-A-21
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13. Does the order describe the legal authority/
instrument which is the subject of the violation?
(e.g., statutory provision, regulatory provision* ..
if apolicable, statutory authority for permit
issuance, name of permittee, permit number, date
permit issued, permit modification or extension,
date previous administrative order issued, etc.). [ ] ( ]
Examples
[ j Statute
( ] NPDES Permit
14. does the order contain a specific finding that
the discharger is in violation of a specific
statutory or permit requirement? ( J t )
15. Does the order describe or reproduce the
specific terms of the legal authority/
instrument which are the subject of the
violation? (e.g., effluent limitations,
compliance schedules, etc.). [ ] [ '
16. Does the order state, with reasonable
specificity, the nature of the violation?
(e.g., type of violation, date, evidence,
etc.). [ J [ ]
Examples
I ] Reporting or monitoring violation
[ ] Effluent limitation violation
[ ] Violation of special permit condition
[ ) Pretreatment violation
( I Unpermitted or unauthorized discharge
( ] Failure to meet O&M/construction schedule
( ) Violation of a Section 303 letter
( ) Improper 04M
I ) Other '
X-A-21
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Yes
17. Does the order specify the duration of violation-,
if known? [ ]
Estimated violation ' _ .
•18. Does the order doeunent prior requests to the
violating party for compliance with the legal
authority/instrument? (e.g., telephone calls,
letters, meeting, etc.).
11 (I
'19. Where the order is issued for a CWA Section
308 violation does the order provide the
violating party with an opportunity for prior
consultation? [ ] [ ]
20. Does the order establish interim effluent
limitations? [ ] [ ]
21. Does the order *et out clearly any specific
steps which EPA/State wants the violating party
to take to achieve compliance? ( ] [ ]
Examples
[ ] Submission of monitoring reports
[ ] Compliance with existing effluent limitations
[ ] Submission of pretreatnent program
[ ] Submission of correction/compliance olan or study evaluating
compliance options
f ] Compliance with existing O&M/construction schedule
[ I Compliance with interim effluent limitation
[ J Compliance with categorical or general pretreatnent standards
f 1 Other
22. Are the number of days reasonable for the
type of relief sought? r 1 ( 1
I-A-23
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No
23. Does the order contain a specific requirement
and dace for final compliance? «-••-[- j j I
24. Does the order specify a manner and time frame
for reporting compliance with the terns of the
order to the issuing authority? • ( J ( I
25. Does the order specify the effective date of
the order? (e.g., Date of receipt, date of
consultation, etc.). [ ] ( ]
26. What is the elapsed time between the dates of
violation and the date of issuance of the
order? Is the elapsed time reasonable?
Number of days
'27. who is the signatory of the order? (Choose
two or less).
[ ] Regional Administrator
[ ] Regional Counsel
[ ] Water Division Director
[ ] state Water Pollution Control Officer
[ J Other
I-A-24
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Attachment 3
Recommended Format - CWA - Administrative Orders
Summary of Changes from the
April 18, 1975 Guidelines on
Administrative Order Format
General Approach
The April 18, 1975 guidance entitled "Guidelines for issuing
Administrative Compliance Orders Pursuant to Section 309(a)(3) and
(a)(4) of the Federal Water Pollution Control Ace, as Amended," has
been clarified and been brought uo to date with the new July 1985
•Recommended Format for Clean Water Act Section 309 Administrative
Orders* "
Some examples of the modifications and additions are:
• The new guidance makes it clear that citations of the regulatory
basis of violations must also include the underlying statutory -
basis of the regulation..
• The new guidance makes it clear that the basis of the violation
may be set off in a separate section of the order if the Region
so chooses.
• The Section on Terms of the Order has been expanded to explain
in greater detail the need for a final date for tine periods for
coning into compliance. This section also deals with prescribed
methods which may be imposed on Orderees through AO's (i.e., the
closer the requirement to achieving compliance, the sounder the
leaal position to include the requirement in an AO).
* The discussion on using successive AO's has been eliminated since
the current view, successive AO's for the same noncompliance
problems should normally be avoided and the case should be
escalated to the referral process.
• The discussion on personal service of AO's has been eliminated
since this is extremely resource intensive and the accepted
method of service is now by Certified Mail-Restricted Delivery
with a return receipt. •
* New attachments have been included such as the sample AO. other
attachments were updated.
• We have added a section on Additional Provisions, such as a
commonly used statement that further violations of the require-
ments of the AO .and the permit may result in civil actitm
including a penalty of up to $10,000 per day, ineligibility for
Federal contracts, grants and loans and suspension of the permit.
• The Order portion of the Guidance and the Sample AO indicate
.that Orders which include milestones should include reporting
requirements under Section 308 of the Act.
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I. B. GUIDANCE ON SELECTED TOPICS RELATED TO
LIMITATIONS AND USE OP ADMINISTRATIVE ORDERS
UNDER SECTION 309 of the CLEAN WATER ACT
-------
Guidance on Selected Tonics Belated to Limitations and rise
of Administrative Orders Under Section 309 and InformatiorT
Requirements under Section 3fla of the Clean Water
I. Administrative Orders on Consent
Introduction .. »
In recent months a few Reaional Offices of FPA have discussed
the possibility of issuinrr Administrative Orders on Consent (AOr):
that is, an Administrative Order issued under Section 309 of the
flean Water Act, which is t*en sinned not only by the Peoional
Administrator (or his desionee) hut also hv the responsible party
for the Orderee who acknowlednes iurisdiction, truthfulness of
the findinas and appropriateness of the relief. The purpose of
the AOC would typically *e the same and contain the same provi-
sions as anv unilaterally issued Administrative Order dealino
with violations of a permit or statutory reouirements. The Admin-
istrative Order would be the product resultino from neootiations
with the Orderee and would contain findinns of fact, and a directive
to achieve compliance with the permit and the Act bv date certain.
The AOC may contain a specified time table for compliance and
conseouences of noncomm. iancer the AO would set forth fully the
violation and t*e reouirements for the orderees to meet. The
AOC should specify a final compliance date, which may not exceed
a time limit that the Administrator determines to be reasonable for
for anv final deadline. tt is anainst Aaencv policy f.or the A.OO
to waive FPA's authority to pursue other enforcement alternatives
either for the violations servina as the basis of the order, or
for future violations.
Advantages of AOC
The Aor can provide an additional approach to brinci a violator
into compliance in the followina wavs:
1. The AOr creates a record of the orderee's aareement to
milestones and an enforceable schedule of compliance.
2. The AOC has educational value. Tf there are negotiations
to develop the AOC, both FPA and the orderee may benefit
f.roin the exchanne of information. Such information
mav be beneficial to F"PA if a subseauent enforcement
action is reouired.
3. There.mav be osvcholonical advantane to havino the
orderee Commit to compliance schedule milestones and a
final compliance date (as lona as the approach is not
coercive to the dearee that the orderee is oblicied to
do more than reauired by law).
I-P.-1
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4. If the AOC has to he enforced throunh -judicial action, in
miaht he used as an admission *v the defendant o? those
violations covered in t*e findinas.
Limitations of an AOC
»•
Because an AOT miaht under some circumstances reoiii-r*
additional time for neootiations, the AOC may not he annronriate
for many cases where prompt resnonse is reouired such as when
violations would cause environmental harm or endanoerment of
health. However, where EPA is seekino commitment to a lono-term
and more complicated compliance schedule, an AOC mtciht have more
value, and *PA mioht pursue a separate AOC *or that purpose.
The AOC should not result in unwarranted delav of action HV
EPA. EMS reouires that noncomnliance situations be responded to
with prompt enforcement action. If the situation is appropriate .
for an AOC, developino the terms of an AOC should he prompt to
ensure that noncompliance is not delaved hv the process. Finally,
in the case of a violation of an AOC, as with a unilateral AO,
the presumption is that EPA will first consider pursuino a iudicial
enforcement response.
I-B-2
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Specific Use* of AOC
Some typica-1, though hypothetical, situations, where ah AOC
might be useful are the following:
Municipals
AOC could be useful for minor municipals. All minors
and majors must be on enforceable schedules. Where States
do not do this, EPA must. Because of the psychological
value of the AOC, it may be useful to get commitments for
municipal construction based on an acceptable compliance
schedule. However, as in AO's, decisions on the exact
techniques, construction etc., to come into compliance are
in the end left to the orderee and not specified by EPA.
Industrials
The AOC could supplement general permits to set out an
additional compliance requirement as in a study/ or monitoring
scheme to investigate appropriateness of additional limits,
or to examine an environmental issue, where there have been
violations or where other action is needed to bring an
Orderee into compliance. These AOC should cite CWA $308
(instead of or) in addition to CWA $309, since the orders
require monitoring or data gathering rather than actions
intended to produce compliance with, e.g., effluent limits.
The AOC can be used to get an agreement on a compliance
schedule (but not to modify a compliance schedule in a
permit).
Legal Issues ' .
The AOC does typically contain an agreement on the findings
and a commitment to compliance, as indicated by the orderee*s
signature on the order.
The AOC should be prepared and negotiated with the
participation of the Office of Regional Counsel to ensure approp-
riate language and that any litigation considerations that may
subsequently arise are anticipated and dealt with.
OWEP and OECM will periodically provide updates of guidance
on AOC. The AOC should be used to impose as strict a compliance
deadline as possible and not to provide for a permissive deadline
or requirement.
In level of response and escalation of enforcement response,.
ah AOC is equivalent to an AO. For violation of an AO or an AOC,
escalation to a referral presumably would be the first response
considered.
t-B-3
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II. Restricted Us* of Administrative Orders for Unauthorized and
unoermitted Discharges: " ~~
Summary
CPA may not rely on AOs as surrogate permits to address other-
wise unpermitted discharges. For AO's which are issued addressing
unauthorized, unpermitted discharges* the following criteria
should be met* . . -
- EPA should first consider whether to require immediate cessation
of discharge.
- The AO should contain a date certain by which the discharger
must apply or reapply for a permit. (No more than 60 days to
apply is typically needed.) Interim limits should be set in
the AO only for the briefest time possible leading up to final
compliance and would probably be most defensible, for example,
where health issues such as proper disposal of sewage require .
some discharge.
- The AO should have a reasonable final date for attaining
compliance with final permit limits.
Discussion
The Environmental Protection Agency in the past has issued
letters and Administrative Orders (AOs) to dischargers without a
current NPOES Permit (especially in the case of minor dischargers
or applicants for a general permit). These letters or AO's
provided terms, conditions, and interim limits for the discharge.
However in Hunan Kitlutsisti vs. Arco Alaska Inc. (an unreported
case which was before the federal district court in Alaska) this
practice was challenged by Kitlutsisti. The Court did not rule
on the issue but the case narrative does show disapproval of
such enforcement letters and AO's as an apparent substitute for
permit issuance. An earlier EPA Guidance* has stated that in
general a discharger who has filed a permit application should
receive a decision on their permit before an AO is issued (except
for exceptional situations such as a toxic discharge).
The issuance of an Administrative Order instead of following
the permit issuance process means that EPA does not afford.the
public hearing and other procedural requirements normally associated
with permit issuance such as opportunity for public comment,
adversarial input and the creation of an administrative record.
The Administrative Procedures Act (APA) requires that EPA act
upon permit applications within a reasonable time, not delaying
•Memorandum to Enforcement Divisions from Assistant Administrator
for Enforcement, March 20, 1974.
I-B-4
/
- ••>.->
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the nroceas with issuance of an AO or letter. The Court in the
above case had the followina ohiection to the "creative administra-
tive techniques".
"Voncompliance with the statute has meant that third parties,
the companies... have bpen needlessly suhiected to citizen suits
which thev are powerless to avoid. It has also denied other
users of Norton Sound's water resources their statutory ^riant to
comment on and object to those proposed discharaes." . -
Administrative Orders cannot be used as a discbarae-authoririnn
mechanism to fill the nap between the time of AO issuance and
some indeterminate future date when an individual nermit or
neneral permit miaht he issued. EPA may not relv on an AO to act
in Place of an NPDFS nermit.
rjnder certain circumstances it may be necessary to issue an
AO even thouoh a strict readino of the Act miaht reouire a ceasina
of the discharae and no resumption of the discharae until, a
permit is in place. niscretion should be used in estahlishina
interim limits throuah an AO as lono as the AO is not issued as a
convenient method for EPA to deal with an NPDFS permit hacklon,
and there is a clear justification for allowino the discharae to
continue until the permit is issued, when used, compliance
schedule deadlines and tnteri"» limits must be reasonably
strinaent. The AO should also state that the EPA way initiate a
civil or criminal enforcement action seekino penalties and other
appropriate relief, if the discharge does not cease or a permit is
not obtained within the reauired time.
It is worth notina that there has been a chanae from the
early stanes of implementation of the Act. In neneral when
ouidance was written in 1973, circumstances were different.
Manv AO's addressed problems such as discharae without a permit.
When, in these cases, a facility could not be shut down for r
health reasons, interim limits were a way of dealina with the
discharaer. Since the NPDES pronram has been in existence now
for thirteen years, these situations are less commonly encountered.
But in. certain cases AO's with interim limits are used to address
discharaes without a Permit dependina on health issues, type of
facility, bow much construction is needed, environmental effects
of shut down and the ^inal compliance schedule.
It is also worthwhile notina that where a discharaer is
recuired to apply for a permit, the application should be sent in •
within 60 days.
I-B-5
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III. Proader Usage o^ Section 308 in the Administrative Ordej
to Impose penortinn Peauirements in AOs . .
AOs should cite Section 308 when imnosina renortino retire-
ments, includino those associated with snecific steps, a-nd 'milestones
in a compliance schedule. The stronoer lenal authority- for
imposino these renortJnn rectuirements actually is Section 30P of
the Clean Water Act, rather than Section 309. The Order should
specify the manner and timeframe for reporting on compliance to
the issuina authority. The most common format is to cite Section
30fl and Section 309 as a basis in the introductory paranraph of
the Order nortion of t*e AO. (See "Recommended Format ^or Admin-
istrative Orders Under Section 309 of the riean Water Act", panes
5 and 6) .
Section 30* and "Show Pause "earinos"
In the past, $30* o^ the Act has been cited to reemire members
Q? the reaulated community to attend "show cause hearinos" or
"show cause meetinos" to explain records or provide direct testimony
by personal examination why U.S. EPA should not take enforcement
action for aliened violations of the Act. Notice to the violator
to attend such a meetinn was provided by a document constructed
similar to 5309 AOs. The term "show cause" does not appear in
the Act and therefore while formal meetinos with the violator are
important, a violator's attendance strictly speakino is voluntary
at. all times, tinder Section 308 (or Section 309), there is no
authority to rerruire the physical presence o^ a specific person
or representative at a specific place and time. EPA can reouire
documents, data and materials etc. to be provided to EPA under
Section 308, however. Implied 5 300 sanctions solely for
failure to attend a meetino should not be made.
The Anency is on stronnest leaal footina when it characterizes
these ."hearinos" as an opportunity for the alleaed violator to
nrovide oral explanation o^ information relevant to a potential
enforcement matter.
rrse o* Section 30P in Pretreat-.ment Enforcement anainst Industrial
Users
In pursuino an enforcement action (particularly a judicial
enforcement action) aoainst an industrial user for violations of
pretreatment standards, E^A typically should use a Section 30fl
letter to obtain sufficient process description, wastewater
monitorino results, and wastewater treatment information to
establish a clear pattern of violations by the industrial user.
-------
"ore active us* of section 308 letters is Dart-
m ?retrMtl"«nt cases because, unlike direct VPDr ti
EPA does not have a set of r>MRs which can easn! «Jm?h*
clear track record of violatina conduct w£fi V«r«f Il9h
introduce into evidence one or more isolate^ II ft "" °"lv
o" " "n
xeccer ne^ore referrino a nretraafemlln?*'.!-''"""" " ^wc^l°n -*OH
Denarti«ent of Justice? Pretreatment enforcement case to the
I-B-7
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I.C. LISTING OF OTHER EXISTING GUIDANCE
ON ADMINISTRATIVE ORDERS
'-V
-------
LIST OF OTHER GUIDANCE ON ADMINISTRATIVE ORDERS
Th« following documents and memoranda, among others, may be
of interest to the reader, althouah they do not appear in full
text within this reference document. They may also be of general
interest and of historical value. Copies may be obtained by
callino Enforcement Division, OWEP, (EN-338), EPA, Washington, D.C
(FTS/202/475-8310)
• Memo/ "Compliance Monitoring, Administrative Orders, and
Court Actions under Section 309 of the Federal Water
Pollution Control Act Amendments of 1972," March 20, 1974
• Memo, "Guidelines for Issuing of Administrative Order
Pursuant to Title III, Section 309(a)(3) and (a)(4) of
the Federal Water Pollution Control Act, as Amended [33
U.S.C. 1319(a}(3) and (a)(4)]," April 18, 1975
• Memo, "Final Policy on Section 309(a)(5)(A) and (B) of the
FWCPA, as Amended: Extension of the July 1, 1977, Deadline
for Industrial Dischargers," March 30, 1978
0 Report, "National Municipal Policy and Strategy; for
Construction Grants, NPDES Permits, and Enforcement Under
the Clean Water Act," October, 1979
o Memo, "Example Non-Judicial Enforcement Documents for
Obtaining Compliance with National Municipal Policy,"
August 20, 1984.
I-C-1
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III.A.6,
"Relationship of Section 309(a) Compliance Orders to Section 309(g)
Administrative Penalty Procedures", distributed August 28, 1987. This
document is reproduced at III.B.3, of this compendium.
-------
-------
III. ADMINISTRATIVE ENFORCEMENT
B. ADMINISTRATIVE PENALTY ORDERS
-------
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III.B.I,
"Guidance on Class I Clean Water Act Administrative Penalty Procedures",
dated July 27, 1987 and noted at 52 FR 30730 (August 17, 1987).
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20440
*"
JUL 2 7 B87
MEMORANDUM
SUBJECT: Guidance on Class I Clean Water Act Administrative
Penalty Procedures
?ROM: Thomas L. Adams, Jr.
Assistant Administrator for Enforcement
and Compliance Monitoring
Lawrence J. Jensen
Assistant Administrator for Water
TO: Regional Administrators, Regions 1-X.
EPA will use the procedures set forth in the guidance which
follows to issue Class I administrative penalty orders under
Section 309(g) of the Clean Water Act (CWA). This guidance is
set forth in the form of regulatory amendments with the expecta-
tion that EPA will later notice them for proposed rulemaking.
Add Part 126 as follows:
Subpart A - Procedures for EPA Assessment of Class I
Administrative Penalties under Section
309(q) of the Clean Water Act _ •
Sec.
126.101 Purpose
126.102 Initiation of Action, Public Notice and
Opportunity to Comment
126.103 Presiding Officer
126.104 Opportunity for Hearing
126.105 Administrative Record
126.106 Counsel
126.107 Location of Hearings
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126.108 Hearing Procedures
125.109 Record of Rearing
125.:i: Pecc.r.-e-.^e-i Set is is.-, of Presiding Officer
126.111 Pir.al Order of the Adr i n 1 3 tra t or
126.112 Petitions to Set Aside an OrJer
125.113 Effective -ate of Order
126.114 Payment of Penalties Assessed
5126.101 Purpose
This s-bpar*. sets forth procedures for initiation and
admir. istr J-. i en of Class I administrative penalty orders under
Section 3:9.'g) of t.-.e Clean Water Act (CWA). 33 U.S.C. 1319(g).
S126.1C2 Initiation of Action, Publ ic' Not ice and Opportunity
to Ccrjrer. t
(a) If the Administrator finds that respondent has violated
Section 301, 302, 306, 30", 308, 318 or 405 of the Clean Water
Act, or has violate? ary per-it condition cr limitation irpler-e-.?^
ing.any of s-ch sections in a permit issued under Section 402 of
the Clean Water Act by the Administrator or by a State, or in a
permit issued under Section 404 by a State, the Administrator
ray issue a proposed administrative penalty order assessing
respondent a civil penalty in accordance with these procedures.
The proposed order shall specify the amount of the penalty which
the Administrator proposes to assess and shall state with reasonable
specificity the nature of the violation. Pursuant to Section
309{a), the Administrator may at the same time, or at a different
time, and at his option, separately Issue an administrative order
(1) which shall require the recipient to comply with CWA require-
ments, (2) which shall not be a proposed order subject to these
procedures and (3) which shall be immediately effective. Nothing
in this Pact* Shall stay the effectiveness of administrative orders
issued by th« Administrator pursuant to Section 309(a) of the CWA.
(b) The Administrator shall give public notice of the pro-
posed administrative penalty order, and an opportunity to corme.nt
on the proposed o.rder, in the forni and manner set forth below.
(1) Such public notice shall allow 30 days
cc.-unent prior to issuance of a final order.
rr.-a il ing
(2) The Administrator shall give public notice zy
copy' of the proposed administrative penalty order
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(A) the respondent;
(B) any person who requests notice; and"
(C) the most appropriate State aaency having
autncrity under State law with respect to the matters which are
the subject of the proposed order. The Administrator shall also
have consulted with the applicable State authority in confor^ance
with Section 309(5 ) ,'1) (A ) before or at the time public notice is
Given of the proposed administrative penalty order.
•
(D) the Administrator may also, at his sole option,
provide additional notice to persons on a mailing list which
includes names and addresses developed from some or all of the
following sources: tnose who request in writing to be on the
list, soliciting persons for "area lists" from participants in
past similar proceedincs in that area, including evidentiary
hearings or other actions related to NPDES permit issuance, and
notifying the public cf -the opportunity to be put on the mailing
list through periodic publication in the public press and in
such publications as Pegicnal and State-funded newsletters,
environmental bulletins, or State law journals. The Administrator
ray update the mailing list from time to time by requesting
written indication of continued interest from those listed. The
Administrator may delete from the list the name of any person who
fails to respond to such a request. The Administrator may, at
his sole'cption, publish notice of the prcrtsed administrative
penalty order in a newspaper of general circulation in the area
in which respondent resides or is domiciled or conducts the
activity which the proposed penalty addresses. In any event, the
Administrator shall take such steps as are necessary to fulfill
the public notice requirements of Section 309(g)(4). These
notice provisions do not apply to separate administrative orders
issued under Section 309(a), which are immediately effective
except for orders issued for violations of Section 308, which
orders shall take effect after the person to whom they are issued
has had an opportunity to confer with the Administrator.
(3) All public notices issued under $5126.102(b)(2)(A)-
(C), and (0) whan applicable, shall be sent by first class mail.
All public notices issued under this subpart shall contain the
following minimum information:
to assess
given;
(A) Name and address
the administrative penalty
of the EPA office proposing
for which notice is eeir.g
(3)
person, facility or
is assessed;
Name a-.i address of the respondent, and
activity against which the proposed pena
(C) A brief description, of the business.cr activi
conducted by the person or facility or the operation described in
the order, including.where applicable, the '"3ES permit number cr
permit number for the discharge of dredged fill material, and
issuance date;
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(0) A summary of violations alleged for which '
the administrative civil penalty is being proposed, including
the amount which the Administrator proposes to assess for the
violations alleged;
' E ) Sa.-», airfress ar.j telephone nuroer of ar
Agency rer res*-ta t i ve fror whom interested persons ray cotain
further information, including ccp.ies of the proposed orier:
;' F '; A statement cf the opportunity to submit
writie" f-.-.-e-ts --. fe prop-s«?-! oro>r, the deadline for submission
-. f s-r- ---.---.is w-icr. is trv. rty iays after issuance of the notice.
ar*d tr.e rare and address of the Hearing Cler* to whom comments
should be sent;
(G) A statement of the opportunity for the respondent
to- recuest a hear:nc ar-j the procedures Dy which the respondent may
reruesr:^"
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(E) The fact that the respondent must request a
hearing within 30 days of receipt of the notice provided under
this subparagraph and must comply with $126.104(a) in order for
respondent to be entitled to receive a hearing;
(F) The name and address of the Hearing Clerk to
whom respondent may send a request for hearing;
(G) The fact that the Administrator may issue the
_final order after 30 days following receipt of the notice provided
"under these rules/ if respondent does not request a hearing; and
(H) The fact that any order issued under this
subpart shall become effective 30 days following its issuance
unless a petition for review is filed by an eligible coramenter
or an appeal is taken under Section 309(g) of the CWA.
(c) During the public corrnent period provided under
subpart (b) above, any interested person may submit written
comments to the Agency official designated. The Administrator
shall include all written comments in the administrative record.
(d) Computation of time. In computing any period of time
allowed in these rules, the day of the event from which the
desianated period begins to run shall not -?e included. Saturdays,
Sundays and Federal legal holidays shall fc-? included, when a stated
time expires on a Saturday, Sunday or Federal legal holiday, the
stated time period shall be extended to include the next business
day. Any time periods not specified by these rules shall be set
by the Presiding Officer. Service on respondent of the initial
proposed order and other information required by $126.102(b)(4)
is complete when the return receipt is signed. Service of all
other pleadings and documents is complete upon mailing, with the
exception for respondent for service of the initial proposed
order and notice required by 5126.102(b)(4), five days shall be
added to the time allowed by these rules for the filing of a
responsive pleading or document where a pleading or document is
served by mail. Filing of a pleading or document occurs on the
date it iff received by the Hearing Clerk.
(e) Service of documents. A certificate of service shall
accompany each document filed or served by the Administrator or
respondent. Agency counsel and the respondent shall serve espies
of all filed pleadings upon each other, upon all commenters to
the proceeding -and upon the Hearing Clerk. The Hearing Cler'<
shall serve, with a certificate of service, copies, of all staterer.ts
or pleadings received from ccmmenters, and service shall -e raie
by the Hearing Clerk on Ag.ency counsel, the respondent a.-.i a-.y
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other conoMntera. The Hearing Clerk shall also serve on ail
commentera the initial complaint and any request for hearing
received frora respondent. The Hearing Clerk shall serve, with a
certificate of service, all orders, notices or other documents
iss-ei sy the Presiding Officer or the Administrator on Agency
Counsel to the proceeding, the respondent and any cormentera to
r * e proceeding.
126.1C2 Presiding Officer
(a) The Administrator shall act as Presiding Officer. So
person shall serve as a Presiding Officer where he has any prior
connection with the case including, without limitation, the
performance of investigative or prosecuting functions. The
Presiding Officer shall conduct hearings as specified by these
rules and make a recommended decision to the Administrator." His
reccmrer.ded decision shall address both questions of fact and
law. The Presiding Officer shall be assigned by the Administrator
to the proceeding within thirty days after a hearing request is
received by the Hearing Clerk identified by the Administrator
for the proceeding... The Hearing Clerk shall notify the
Administrator expeditlously of receipt of a hearing request.
The Hearing Clerk snail be identified In the Initial notices
sent to respondent and potential cownenters.
fb) The Presiding Officer shall consider each case on the
basis of the evidence presented. The Presiding Officer is solely
responsible for preparing and transmitting the recommended decision
and order in ea'-h case to the Administrator, unless such decision
and order are agreed upon by the parties. In such latter case,
the agreed upon decision and order shall be reviewed and issued
as appropriate by the Administrator, and no Presiding Officer
shall be appointed or* if appointed, he shall have no further
authority in the proceeding.
(c) The Presiding Officer is authorized to administer
oaths and issue subpoenas necessary to the conduct of a hearing.
The Presiding Officer is authorized to do all other acts and
take all Measures necessary for the maintenance of order and
for the efficient, fair and impartial adjudication of issues
arising in proceedings governed by these rules.
(d) Ex Parte Communications.
(1) *Ex parte communication* means any communication,
written or oral, relating to the merits of the proceeding, between
tne Presiding Officer and either an interested person outside the
Agency or the interested Agency staff, which was not originally
filed or stated in the administrative record or in the near:--. _
"Such corr.unication is not an *ex parte communication' if all {
parties have received prior written notice of the proposed COTJI—
ication and have been given the opportunity to be present and
participate therein.
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(2) "Interested person outside the Agency" includes the
respondent* any person who filed written comments on the proposed
penalty order, and any attorney of record for those persons.
(3) "Interested Agency staff" Deans those Agency
employees, whether temporary or permanent, who may investigate,
litigate, or present evidence, arguments, or the position of the
Agency in the hearing oefore the Presiding Officer or who partiri-
oated in the preparation, investigation or deliberations concerning
the proposed penalty order, inc.uding any'EPA employee, contractor,
oc consultant who nay be called as a witness.
(4) No interested person outside the Agency or member
of the interested Agency staff shall maker or knowingly cause to
be made, to the Presiding Officer an ex parte communication on
the merits of the proceeding.
(5) The Presiding Officer shall not make, or knowingly
cause to be rade, to any interested person outside the Agency or
to any member of the interested Agency staff an ex parte communi-
cation on the proceeding.
(6) The Adrinistrator may replace the Presiding Officer
in any proceeding in which it is demonstrated to the Administrator's
satisfaction that the Presiding Officer has engaged in prohibited
e_x_ parte cormunicat icr.s to the prejudice of any participant.
(7) Whenever an ex parte communication in violation of
this subpart is received by the Presiding Officer or made known
to the Presiding Officer, the Presiding Officer shall immediately
notify all parties or commenters in the hearing of the circum-
stances and substance of the communication and may require the
party or connenter who made the communication or caused it to be
made, or the party or commenter whose representative made the
communication or caused it to be made, to the extent consistent
with justice and the policies of the CWA, to show cause why that
party's or commenter's claim or interest in the proceedings
should not b+ dismissed, denied, disregarded, or otherwise
adversely affected on account of such violation.
(•'). The prohibitions of this paragraph apply upon
designation of the Presiding Officer and terminate on the date of
final Agency action.
§126.104 Opportunity for Hearing
(a) within 30 iays after receipt of the notice set fcrv.
in §126.102(b), the respondent ray request a hearing and may-
provide written comrents on the proposed administrative penal"/
crier. Respondent rust request a hearing i.n writing. Ths rec.es:
rust speci.fy the factual and legal issues which are in di-sp--.-?
and the specific factual and legal grounds for the respondent's
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defense. Any and all snecific alienation; not resaonded to by the
respondent or a commenter shall be deemed admitted.
'=: .h« resp^-ce-t s-all re -eerei to -.ave waived the ric--. t
to a .-.ear:-.- if t-e responds.-, t dees not subnt t.-.e request to th'a
Hear-in-; Cler'< 2es isnated. Respondent's request must be vi writing
an i receive- oy the Hear:.-.5 Cler* no later than 30 days after
respcrde-t receives the proposed orier. For good cause shown, the
Presiding Officer ray -ra.-.t a .-.ear;.-.-; :f t.w.e respondent s-c.-its
a late rec-est.
(c) Except as provided in $126.104(f), tn« Presiding Officer
s^all prorptly schedule all hear:ngs and provide reasonable notice
of the schedule to all parties and comnenters. The Presiding
Officer nay crant any delays or continuances necessary or desirable
to resolve the case fairly fcr ~,ood cause shown.
:d( • Vpo". a f:nd:r.- of rood ca-se sy the Presiding Officer,
a respcr.ier.t ^no has requested a hearing may ar^end the specifica-
t:or -f tr.e iss.es i- disp-te ari the ^rounds for defense not
Ijter tha-. 2C -ays :ef:re the schedule- date of the hearing.
(e! The Presidir^ Officer shall give written nctice of ar
hearing to re heiJ under t^ese rules to a..-.- person who ccr.-ente
en the proposed a-ir-i r. is t rat i ve penalty crt- - -nder 5 126 . 1C 2 ' r • .
This notice shall specify a reasonable tir-.- r-rior to the hearing
within which the-commenter ray reouest an -roortunity to oe heard
and to present evidence or to rake correnta :n any such hear:--.
The rot ice s"all recuire that any such recast specify -.."e far-.s
or issues which t."*.e corr.enter wishes to address.
(f) Su.~.rrary determinations.
(1) Any party In a hearing to be held under these
rules may move, with or without supporting affidavits and
briefs, for a summary determination upon any of the issues bei^g
adjudicated, on the basis that there is no genuine issue of
material fact Cor determination. The motion shall be served -pen
each other participant and filed with the Presidina Officer at
least 20 days before the date set for the hearing, except that
upon leave granted for good cause shown, the .-otion may be filed
at any time before the close of the hearing.
(2) Any other party may file and serve a respc-se ••
•he noti^r. or 'a coun terro t ion for surrra'ry determination, w-.i-."
t-.irty.days of service unless a different schedule is set =•/ -. - •?
Presiiir.g Cff'irer. When a rot: on fsr su.T.nary de term in a t: ~- .:
made a.-.i supported, a par ty oppcs i --; the.ration may not rest :z~^—
r-ere allegations or denials out rust show, by affidavit cr =y
C-f.
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other materials subject to consideration by the Presiding
Officer* that there is a genuine issue of material fact for
determination at the hearing.
<3) Affidavits shall be nade on personal knowledce,
setting fortn facts and showing that the affiant is competent to
testify to the matters stated therein.
(4) No oral argument shall be had on the motions filed
under this subpart unless the Presiding Officer so elects.
The Presiding Officer shall rule on the motion promptly after
responses to the motion are filed under this subpart.
(5) If all issues are decided by summary determination,
no hearing shall be held and the Presiding Officer shall prepare
a recommended decision under $126.110. If summary determination
is denied or if partial summary determination is granted, the
Presiding Officer shall issue a statement of findings and reasons
available to the public at the time of issuance by the Presiding
.Officer, and the hearing shall proceed on the remaining issues.
(6) After receipt of all pleadings, the Presiding
Officer may grant or deny any motion, order a continuance to
allow additional affidavits or other information to be obtained,
or make such other order as is just and proper.
(g) Default. Once the Presiding Officer has been assigned
pursuant to $126.103(a), the Presiding Officer may recommend a
party be found in default after motion for failure to file a
timely response or for failure to appear at a hearing without
good cause being shown. Any motion for a default order shall
include a proposed default order, and the alleged defaulting
party shall have thirty days from .service to reply to the motion.
The Presiding Officer shall issue his recommended default decision
solely to the Administrator subject to $126.110 of these rules.
If the Administrator determines that a default has not occurred,
the administrative penalty action shall be returned to the
Presiding Officer for further proceedings pursuant to these
rules. ZC the Administrator finds a default has occurred, he
shall issue a default order with penalty assessment, if applicable,
against the> default ing party, which order shall constitute final
agency action for purposes of judicial review. If the Administrator
determines that a default has occurred, any conunenter who filed
comments in a timely manner under $126.102(b) may, within 30 days
after the Administrator has issued the default order, petition
the Administrator to set aside the default order and $126.112
shall apply to the Administrator's action on the petition.
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5126.105 Administrative Record
(a) At any time after public notice of a proposed penalty
or-ier is oiven under 5125.102, the Adminis trator shall make
available the administrative record at reasonable tires for
i -. s p e r t : - .-. a ~ ". t r p v ; .- 7 r. y a n v interested person, subject to
provisi;.-.s cf law restricting tr.e public disclosure of confidential
information. The requester .-ay -e required by the Administrator
to pay reasonable r.-.arces for crpies. rw.e administrative reccri
snail se
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(b) Th« Presiding Officer may establish a deadline or
deadlines for the submission of factual or legal documents which
may be considered as part of the administrative record.
5126.106 Co
(a) A respondent or comrenter may be represented at all
stac.es of the proceeding by counsel. After receiving notification
that a respondent or any commenter is represented by counsel, the
Presiding Officer, the Administrator/ the respondent and all
other comwenters shall direct all further comrnuni cat ions to that
counsel. Respondent and/or commenters shall bear all costs of
counsel.
$126.107 Location of Hearings
(a) The hearing shall be held at the appropriate EPA office,
except as provided in subparagraph (b).
(b) The respondent or EPA may request in writing that the
hearing be held at a location other than that specified in
subparagraph (a). Action on the reauest is at the discretion of
the Presidino Officer.
5126.108 Hearing Procedures
(a) The Presiding Officer shall conduct a fair and impartial
proceeding in which the parties or commenters are given a reason-
able opportunity to be heard and present evidence. Materials in
the administrative record under $126.105(a) shall be made available,
if requested, to the parties and commenters prior to the hearing.
For good cause shown by either party or a comnenter, materials
in the administrative record under 5126. 105(a) may be supplemented
at or after the hearing.
(b) At the hearing, the Administrator shall be represented
by counsel*
(c) the) Presiding Officer rray subpoena witnesses and issue
subpoenas* dices' tecum and ad testif icandum pursuant to the
provision* of the CWA.
(d) The respondent may not challenge in an administrative
proceeding, under these procedures, any final Agency action,
including any final permit, for which judicial review was
available under Section 509(b) of the Clean Water Act.
(e) During the hearing, an authorized representative of t.he
Administrator may sunrari"ze t*.e basis for the proposed administra-
tive order and shall be the first party to make a presentation at
the hearing. The administrative record shall be admitted into
evidence. Th« respondent has the right to examine, and to respond
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to the administrative record. The respondent may offer into
evidence th* response to the administrative record and any facts,
statements* explanations, documents, testimony, or other exculpa-
tory items which bear on any appropriate issues. The Presiding
Officer stay reguire the autner.t ica t ior. cf any written exhibit or
statement.
(f) All direct and rebuttal testimony shall be submitted
in written forr., unless upon motion and good cause shown, the
Presi^in^ Officer detemr.es that oral presentation of the
testimony on any particular fact will materially assist in the
efficient identification or clarification of the issues. The
respondent and the Administrator shall be afforded a right of
cross-examination after introduction by a witness of his written
testimony. Cross-examination will be allowed both on the written
statement of a witness and his oral testimony. The Presiding
Officer may limit the scope or extent of cross-examination and
tr.e number of witnesses in the interests cf justice and conduct-
ing a reascnasly expe-Jitious proceeding. No cross-examination
s.-jll -e allowed on questions cf law or regarding natters that
are not i r t rod JT
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matter, th» Presiding Officer shall give the Administrator and
the respondent an opportunity to show why notice should not be
taken. In any case in which notice is taken and his recommended
decision i» based in part upon this notice, the Presiding Officer
shall place a written statement of the matters as to which notice
was taken in the record.
(k) After all evidence has been presented, the Presiding
Officer may allow any participant to present argument on any
relevant issue specified in the request for hearing or in comments
submitted prior to the hearing. Any participant may submit a
written statement for consideration by the Presiding Officer.
The Presiding Officer shall specify a deadline for submission of
the statement. If the statement is not received within the time
prescribed, the Presiding Officer may render a recommended
decision in accordance with 5126.110, without considering that
statement. The Presiding Officer may also require the Administrator
and the respondent to submit proposed findings of fact and
conclusions of law and may specify a deadline for submission of
these materials.
$126.109 Record of Hearing
The Presiding Officer shall cause a tape recording, written
transcript or other permanent, verbatim record of the. hearing to
be made, which shall be included in the adr.nistrative record,
and shall, upon written request, be made available, for inspection
or copying, to the respondent or any interested person, subject
to provisions of law restricting the public disclosure of confi-
dential information. Any party or commenter making a request
shall be required to pay reasonable charges for copies unless the
party or commenter can show the cost is unduly burdensome.
5126.110 Recommended Decision of Presiding Officer
(a) Within a reasonable time following the close of the
hearing and receipt of any statements following the hearing, the
Presiding Officer shall forward a recommended decision which
shall include) a written statement of reasons for the decision
and any penalty assessment to the Administrator. The decision
shall recoMMnd that the Administrator withdraw, issue, or modify
and issue the proposed penalty order. The recommended decision
shall be based on a preponderance of th* evidence in the adminis-
trative record and shall take into account the penalty assessment
factors specified in Section 309(g)(3) of the CWA. The Presiding
Officer also shall make available to the Administrator for review
the complete administrative record.
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(b) The Presiding Officer provides a recommended decision
solely to the Administrator. The Presiding Officer shall include
the recorwended decision in the administrative record and shall
ra«:e it available to the parties to the prscee-dinr, at the ti-^e
the Adr-i.-. istrattr's decision is released pursuant to $126.111.
The Presiding Officer's recorw-er.ded decision (1) shall not becore
part cf t.-.e administrative record u.-.til the Administrator's final
decision is released and '2; shall not be m,ade previously availabl
except t- tre Ad.-:.-. j, st rator.
(c) Ex parte Cor.ff.-jni cat ions. The rules applicable to
Presidina Officers under S126.103(d) regarding ex parte communi-
cations are also applicable to the Administrator and to any
other person who advises the Administrator on the decision or
the order. Ccrjrunicattons between the Administrator and the
Presiding Officer do not constitute ejc parte communications.
S126. 11 1 Final Crder of the Administrator
'a) Within -a reasonable tire following receipt of the
Presiding Officer's recommended decision, the Administrator s all
withdraw, iss-e, or mcdify and issue the proposed order. The
Administrator's decision shall be based on a preponderence of c
evider.ee in the administrative record, shall take into account
tre pe-.alv/ factors s-?t ?-t i -; Section 309': •' 3) of the Clean
Water Act, shall be in writing/ shall include a clear and concise
statement of reasons, and shall include any final order. The
Administrator's decision shall constitute final agency action for
purposes cf jjdicial review.
(b) The Administrator shall provide written notice of the
issuance, modification and issuance* or withdrawal o,f the proposed
order to the respondent and every person who submitted written
comments on the proposed order.
(c) The decision shall include a statement of the right to
judicial review and of the procedures and deadlines for obtaining
judicial review.
(d) For appeal purposes, if a hearing is held under these
rules, the date of issuance or withdrawal of an order by the
Administrator shall occur on the date of mailing of the
Administrator's order, referenced in 5126.11Kb), to respondent.
The notice shall.be sent to respondent by certified mail, return
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receipt requested. The Administrator shall provide notice of the
decision to all persons who submitted comments.
(e) If no hearing is requested or held under $126.108, the
Ad.ri n i s tra tor shall consider tne entire record* including any-
corments received, and shall issue an order, if appropriate, by
sending the order to the respc.-.dent by certified mail, return
receipt requested. The Administrator shall provide notice of the
decision to all persons who submitted comments. The date of
naiiinq of the order shall constitute final Aqency action for.
purposes of judicial review. The order shall also not« the right
of a prior comrenter to petition for a hearing pursuant to 5126.112
if no hearing was previously held and that such petition shall be
filed with the Hearing Clerk for transmittal to the Administrator.
Prior to issuance of the order when no hearing is held, the
Administrator or his rteleqatee may request additional information
on specified issues fron the participants in whatever form the
Adrinistrator designates, civinq all participants a fair
opportunity to respond. The Adr-inistratcr shall include this
additional information in the administrative record.
5126.112 Petitions to Set Aside an Order
If no hearinc is held before issuance of an order, any
ccrrrenter wno filed comments' in a timely rs.-.ner under 5126.102'b1
r.ay, within 30 days after the Ai.rinistrator has issued an orier
under S126.111(e), petition the Administrator to set aside the
crder and to provide a hearino on the penalty. The Administrator
shall set aside the order and provide a hearing in accordance
with these rules if the evidence presented By the commenter/
petitioner is material and was not considered when the assessment
order was issued. If the Administrator denies a hearing, he
shall provide notice to the commenter/petitioner and to the
respondent and shall publish notice of the hearing denial in the
Federal Register, together with his reasons for the denial.
$126.113 Effective Date of Order
Any ordtr issued under this subpart shall become effective
30 days following its issuance unless an appeal is taken pursuant
to Section 309(g)(8) of the CWA, or a timely petition for hearino
is filed by a prior cormenter before the Administrator. If the
Administrator denies such a petition for a hearing, the order
becomes final 30 days after the denial.
5126.114 Paymen.t of Penalties Assessed
Payment of civil sera I ties'finally assessed by the"
Ad.rinistratc-r shall be made by forwardinq a cashier's or cer.: fied
check, payable to the ','r. itei States of America, in the amo--t
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assessed* and noting the case title and docket number to t*e
following address: EPA Hearing Clerk, P.O. Box 3602.77M,
Pittsburgh, Pennsylvania 15251 or to such other address 'desi^n
in tre final order. Notice of payment r*ust be sent by re«-pon-*er.t
*•; tre ->ar:rq Cl»r< f-r i-.rl^sisn as part of t^.e ai.-sir. is :r attve
rer-.r^ f^r tr^ pr==ee-:-..; ..-. -.i;cr. t.-.e civ.i penalty was assessed
-------
Auguat 17.
/ Notice*
ENVIRONMENTAL PftOTlCDOM
AOCMCY
r. Environmental Protection
Agency (EPA).
No tic* of availability.
r EPA is making available to •
(be public • document entitled
"Guidance of EPA Claea I deu Water
Act Admiaiitnove Penalty Procedure*"
which wtll provide procedural guidance)
la the assessment of administrative
penalties designated •• Class I under
section 900(1). u U.S.C 1311(|).
WWtlin CUTE This guidance
document will be effective on August 17.
1«T.
AOOWM: To obtain a copy of the
guidance, write to:
Water enforcement Dlivslon (LE-134VV),
Attention: AMKUAI Enforcement
Coun*el Seudiem Region* Branch.
Office of Enforcement and
Compliance Monitonng.
Environmenial Protection Agency. «oi
M SirecL SW. Wathmgton. DC 3>WO
•OA *UKT>««JI IHTOMMnOM COVTACT
John W. Lyon. Asintant En/orcemeni
Counsel. Environmental Protection
Agency. Telephone a)2/473-«157. (FTSl
475-8177.
•urwUMKTAiiv m*o*ttA-no»c Secuon
314 of the Water Quality Act of 1887.
Pub L 100-4. idded lection 309(|) to the
Clem Water Act (the Act) to provide for
the tisetiment of •dminittrauve avj
penalties. The itatute eitablnhed two
claisei of admlnittrative avil penal net.
Clan 1 and Casa U. data I
«dminiitrative avil penalty t«*«i«meotj
may not exceed tl0.000 per violaooo. or
etceed a total amount of &U.OOO. Qaaa
II aiaeaamenta may not exceed Sl&OOO
per day for each day during which the
violation continues or e*c*ed a totaJ
aucsiment of S1ZS.OOO. Both daiae* of
•dmicidranve civil penaJiiei may be
•nested for violation* of lecnon 301.
30Z 308 3O7. 30A. 311 or 405 of the Act
or fpr violations of any permit condition
or urru'ation implementing any of theee
tecticrt in e permit n«ued uudes
Seer r. 402 by the Administrator c a
State or in a permit issued under
seciior 4O4 by a Slate.
Thi> notice ta to advise the public of
the ev«ii«biiity of guidance wtucb the
Agency will follow tn issuing Qesa I
administrative avil penalty order*. The
guidance la written In the fora of
regulatory amendments with the
ixpeciation that EPA wiU later notice
them for proposed ruJemaJong. An
interuB final rule guiding the asaesameot
of Class U adflumatraove peoaJoe* ta
aJao being published in the Federal
le»HThnasis.
Admuiutntof.
Oeir Augwet ta 1987.
(F« Doe. r-lMOO rued *-i4-*7 8 44 «a|
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<*»
*^J.
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III.B.2.
# " Final Rules of Practice Governing the Administrative Assessment of
Class II Civil Penalties under the Clean Water Act," issued June 12, 1990,
effective July 12, 1990. Published at 55 F.R. 23838 (June 12). Replaces
the Interim Final Rules dated August 10, 1987.
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23833 Federal Register / Vol. 55. No. 113 / Tuesday, [unc 12. 1990 / Rules and Regulations
ENVIRONMENTAL PROTECTION
jfcNCY
FR Part 22
I... ,.-3645-7]
Rules of Practice Governing the
Administrative Assessment of Class II
CivS Penalties Under the Clean Water
Act
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA is today promulgating a
final rule establishing procedures fur its
administrative assessment cf Class II
civil penalties under the Clean Water
Act (CWA). There have been no
substantive changes to this rule since it
was issued as an interim final rule. See
52 FR 30671 (August 17.1S87). This rule
provides that EPA's administrative
assessment cf Class II penalties will be
governed by EPA's Consolidated Rules
cf Practice for assessing administrative
I inalties. EPA is taking this action in
response to amendments to the CWA.
ir.ade by the Water Quality Act of 1987.
which authorize the Administrator to
assess administrative penalties for
specified violations of the CWA. The
authority granted to the Administrator
^Assess administrative penalties was
I immediately effective on February
J7, the date the Water Quality Act
v-;s enacted.
FATES: The final rule is effective July 12.
l';90. EPA will use the interim final rule
f-.r conducting these proceedings before
the date the final rule becomes effective.
r-R FURTHER INFORMATION CONTACT:
f usar. Gary VVatkins. Office of
Enforcement and Compliance
! lonitoring (LE-134W), U.S.
Environmental Protection Agency, 401 M
Street. SW.. Washington. DC 20460.202-
33>2658.
£• tpPLEKEMTARY INFORMATION: On
Fi bruary 4.1937. section 309 of the
CWA. 33 U.S.C. 1319. was amended by
section 314 of the Water Quality Act.
Fab. L. 100-4, to authorize the
Administrator of EPA to assess
e Jministrative penalties for violations of
the CWA. The amendments to section
3C9 created a new subsection 309(g)
establishing two classs of administrative
penalties, which differ with respect to
procedure and maximum penalty
amounts.
Class I administrative penalty
proceedings are not subject to the
Administrative Procedure Act, 5 U.S.C.
554.556. and authorize a maximum
'ty of $25.000. Notice of the
Lability of procedural guidance for
Class I proceedings was published in the
Federal Register. See 52 FR 30730
(August 17.1987).
The final procedures promulgated
today apply only to Class II. Class II
proceedings authorize a maximum
penalty of $125,000 find are subject to
the requirements of the Administrative
Procedure Act 5 U.S.C. 554. 558. Class II
proceedings are similar to
rdministrative penalty proceedings
subject to the Administrative Procedure
Act under other environmental statutes.
EPA promulgated Consolidated Rules
of Practice. 40 CFR part 22. governing
the administrative assessment of
penalties under other statutes
administered by EPA. The Consolidated
Rules provide a common set of
procedural rules for certain of EPA's
administrative penalty programs to
reduce paperwork, inconsistency, and
the burden on persona regulated. See 45
FR 24360 (April 9,1980).
Because of the similarity of Class n
proceedings to other administrative
penalty proceedings subject to the
Administrative Procedure Act EPA
concludes that the Consolidated Rules
of Practice should be used as the
procedural framework for Class II
administrative penalty enforcement
under the CWA. Accordingly. EPA is
today promulgating a final rule
providing that the Consolidated Rules
shall govern adjudicatory proceedings
for the assessment of Class II
administrative penalties under section
309(8) of the CWA.
EPA published this rule in interim
final form in the Federal Register with a
30-day comment period. See 52 FR 30671
(August 17,1987). The Agency received
six comment letters. Comments fell into
seven areas of concern:
1. Economic impact on small business.
One commenter wanted the Agency to
perform an economic impact analysis.
This regulation is not considered a
major rule by the Agency because it will
.not have an annual effect on the
economy of $100 million or more and,
therefore, no regulatory impact analysis
is required. The economic effect on most
small businesses is slight therefore, no
regulatory flexibility analysis is
required. Moreover, this regulation will
have no effect at all on small businesses-
thai comply with the Clean Water Act.
2. Public notice of complaints. One
commenter asked that the standard
public comment period be 3ft days, that
non-party commenters be allowed to
submit late comments only when the
commenter shows good cause, and that
the Agency provide for late submission
by parties to the enforcement action.
Another commenter wanted the Agency
to give notice of a violation and a '
reasonable time for correction before
issuing an administrative penalty order.
The 30-day comment period after public
notice is set forth in 40 CFR 22.38(d).
Also { 22.38(d) provides that non-party
commenters can submit late comments
after showing good cause. A party to the
action is not covered by the S 22.38(d)
provision for submitting comments;
party submissions are governed by 40
CFR 22.07(b) and 22.15. The Clean
Water Act imposes strict liability and
does not require the Agency to give
notice of violations before enforcing the
Act. These administrative penalties are
.for past violations. Corrective action
will not affect liability. Because
administrative penalty orders usually
will be based on self-reported permit
violations, the discharger should know
of the violation before the Agency
publishes a notice of the complaint
3. Timing of state consultation. One
commenter wanted the timing of state
consultation clarified to ensure that
state and federal actions are not
initiated simultaneously. The state
consultation occurs before the Agency
assesses a Class II civil penalty in a
final order.
4. Evidentiary issues arising at a
hearing. One commenter wanted these
supplemental regulations clarified as to
admissability and relevance of
evidence. The Presiding Officer follows
the existing requirements of 40 CFR
22.22 to determine the admissibility of
evidence.
5. Participation at a hearing by a
commenter who is not an intervenor.
One commenter wanted to ensure that a
person who is not a party but presents
evidence at a hearing is subject to cross-
examination. That commenter also
wanted the regulations to state that e
person who is not a party cannot cross
examine witnesses. Under 40 CFR
22.38(d), a commenter who is not a party
has no right to cross examine witnesses.
Other participation by a commenter is
governed by 40 CFR 22.22 and 22.38(d).
Parties may cross examine. See 40 CFR
6. Right to trial by jury. One
commenter wanted the regulations to
provide for a trial by jury on the issue of
liability for administrative penalties.
There is no right to a jury trial on the
issue of liability in an administrative
proceeding. Atlas Roofing Co., Inc. v.
Occupational Safety and Health Revievf
Commission. 430 U.S. 442 (1977). Accord
Tally. U.S.. 412 U.S. 481. 418 n.4 (1987).
The purpose of the administrative
penalty authority is to expedite
enforcement in straightforward cases in
which violations are clearly documented
and are unlikely to be contested by a
I
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Federal Register / Vol. 55. No. 113 / Tuesday. June 12. 1990 / Rules and Regulations ^2383
violator. The Consolidated Rules of
Practice and this supplemental rule
provide adequate due process
protections for respondents.
7. Criteria for assessing a penalty.
Three commenters wanted specific
criteria for determining a proposed
penalty amount. .The criteria are stated
in section 309(g)(3) of the Clean Water
Act. 33 U.S.C 1319(g)(3). EPA has not
issued specific guidelines under the
Clean Water Act for calculating
administrative penalties for
adjudicatory hearings. The Agency
issued guidance for calculating a
settlement penalty amount on August 28,
1987. The Uniform Civil Penalty Policy,
issued February 16.1984. provides a
general framework for determining
administrative penalties. See 40 CFR
22.14(c).
Statutory Requirements
Under section 309(gJ of the CWA. the
Administrator assesses a Class II
penalty by a final order after
opportunity for a hearing on the record.
Under section 309(g). the Administrator
also must consult with the State in
which the violation occurs before
assessing the penalty.
Under section 309(g). the
Administrator must provide public
notice and reasonable opportunity to
comment upon the complaint The
section provides that, if a hearing on the
complaint is conducted, the
Administrator shall give any citizen who
commented on the complaint notice of
the hearing, and a reasonable
opportunity to be heard and to present
evidence at the hearing. The section
further provides that the Administrator
shall give any person who comments on
a complaint notice of the order
assessing a penalty.
Under section 309(g), if no hearing is
held, any person who commented on the
complaint may petition the
Administrator to set aside the order and
to provide a hearing on the complaint In
addition, section 309(g) provides that the
Administrator must set aside the order
and provide a hearing if the
Administrator determines that the
evidence presented by the petitioner is
material and was not considered in the
issuance of the order. Under section
309(g), if the Administrator denies a
hearing, the Administrator shall provide
to the petitioner, and publish in the
Federal Register, notice of and the
reasons for the denial.
Section 309(g) did not change the
procedures for issuing and enforcing
administrative compliance orders under
other subsections of section 309. See
section 309(g)(ll). Accordingly, the rule
promulgated today does not apply to or
change the procedures for issuing or
enforcing compliance orders issued by
EPA under, for example, section 309(a)
of the CWA.
Consolidated Rules of Practice
EPA concludes that the Administrator
may use the Consolidated Rules of
Practice, 40 CFR part 22, to assess Class
II penalties under section 309(g) of the
CWA. The Consolidated Rules were
developed for administrative penalty
actions like these that are subject to the
Administrative Procedure Act
Under the Consolidated Rules, as
supplemented by this final rule, EPA
will assess Class II penalties by a final
order after opportunity for a hearing on
the record. Before issuing an order, EPA
will give written notice to the person to
be assessed the civil penalty by filing
and service of a proposed order and
complaint under the Consolidated Rules.
Under 40 CFR 22,15. the complaint will
include a notice of the respondent's right
to request within 20 days, a hearing on
the complaint
EPA will provide public notice and
reasonable opportunity to comment on
the complaint under the Consolidated
Rules. If EPA conducts a hearing on the
complaint EPA shall provide to any
person who commented on the
complaint a copy of the notice of hearing
required by 40 CFR 22-21(b), and a copy
of any final order assessing a penalty.
Commenters who wish to participate at
a hearing may be heard and present
evidence without right of cross
examination or may move formally to
intervene under 40 CFR 22.11. If no
hearing is held, persons who commented
on the complaint may petition to have
the order set aside and to have a hearing
on the complaint
This final rule is effective 30 days
after publication in the Federal Register.
The Consolidated Rules of Practice and
the interim final rule will govern
proceedings for the assessment of Class
II administrative penalties under the
CWA for which a complaint is filed
before the effective date of this final
rule.
The final rule affirms that actions of
the Administrator for which judicial
review could have been obtained under
section S09(b](l) of the CWA (for
example, issuance of a waste water
discharge permit) will not be subject to
review in a Class II penalty assessment
proceeding. The final rule makes clear
that a person who is not a party to a
penalty assessment proceeding may
nevertheless comment on a complaint
and petition for a hearing. The rule
requires that these persons file written
comments with the regional hearing
clerk and serve a copy of the comments
upon each party. The rule cofiSKB "»at
• person wishing to intervene as
party in a Class 0 penalty proceeu ,,
may move for leave to intervene under
the Consolidated Rules.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act.:
U.S.C. 601-612. whenever an agency is
required to publish a general notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment, a regulatory
flexibility analysis that describes the
impact of the rule on small entities, i.e..
small business, small organizations, and
small governmental jurisdictions. The
Administrator may certify that the rule
will not have a significant economic
impact on a substantial number of small
entities.
This regulation will impose no
significant costs on any small entities.
The overall economic impact on small
entities is slight Accordingly. I hereby
certify that this proposed regulation will
not have a significant impact on a*
substantial number of small entities.
This regulation does not require a
regulatory flexibility analysis.
Executive Order 12291
Under Executive Order 12291. EPS
must judge whether a regulation is major
and. therefore, subject to the
requirement of a Regulatory Impact
Analysis. Major rules are those which
impose a cost on the economy of $100
million or more annually or have certain
other economic impacts. The Agency
has determined that this proposed rule
does not meet the criteria of a major rule
set forth in section l(b) of the Executive
Order. The Agency submitted this
regulation to the Office of Management
and Budget for review as required by
Executive Order 12291.
Paperwork Reduction Act
Under the Paperwork Reduction Act.
EPA must submit all information
collections to the Office of Management
and Budget for approval. As the present
rule contains no information collection
requirements, this stipulation does not
apply.
Dated: May 30.1990.
William K. Reilly.
A dministratof.
Accordingly, the interim final rule
amending 40 CFR part 22. published
52 FR 30671 (August 17.1987) is ado
as a final rule with the following
changes: . ,
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
" I 1 !990 OFFICE OF
ENFORCEMENT AND
COMPLIANCE MONITORING
MEMORANDUM
SUBJECT: Final Rule for Administrative Assessment of Class II
Civil Penalties, 40 CFR Part 22
FROM: Patricia Chorr>(j-
OE-Water Intern
TO: OE-Water Attorneys
Regional Counsels, Regions I-X
Attached is the final rule governing administrative
assessment of Class II penalties. The rule was issued June 12,
1990 and becomes effective July 12, 1990. Please contact Susan
Gary Watkins at (703) 768-2950 for further information.
Printed on Recycled Paper
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tederal Register / Vol. 55. No. 113 / Tuesday. June 12. 1990 / Rales and Regulations
PART 22— CONSOLIDATED RULES OF
PRACTICE GOVERNING THE
ADMINISTRATIVE ASSESSMENT OF
CIVIL PENALTIES AND THE
REVOCATION OR SUSPENSION OF
KRMITS
t. The authority citation for part 22 is
revised to read aa follows:
Authority: IS U.S.C. sec 2015; 42 VS.C.
sect. 7545 and 7601; 7 U.S.C. tecs 138(0 and
13ii(m): 39 US.C tecs. 1361. 1319(g). 1415, and
1418: 42 UJS.C tecs. 6012. 6828. tr.d 6991(e)
and 6992(d).
2. Section 22.38 is revised to read as
followsr
{22.34 SuppMmontal rules of pracUc*
governing the administrative assessment
of Class n penalties under tne dean Water
Act
(aj Scope of these supplemental rules.
These supplemental rules of practice
shall govern, in conjunction with the
preceding Consolidated Rules of
Practice (40 CFR part 22), administrative
proceedings for the assessment of any
Class II civil penalty under section
309(g) of the Clean Water Act (33 U.S.C.
(b) Consultation with states. The
Administrator will consult with the state
in which the alleged violation occur*
before issuing a Coal order assessing a
Class 0 civil penalty.
(cj Public, notice. Before issuing a final
order assessing a Class II civil penalty,
the Administrator will provide public
notice of the complaint
(d) Comment by a person who ts not a
party. A person not a party to the CJaaa
II proceeding who wiahea to comment
upon a complaint must file written
comments with the Regional Hearing
Clerk within 30 days after public notice
of the complaint and serve a copy of the
comments upon each party- For good .
cause shown the Administrator, the
Regional Administrator, or the Presiding
Officer, as appropriate, may accept late
comments. The Administrator will give
any person who comments on a
complaint notice of any hearing and
notice of the final order assessing a
penalty. Although commenters may be
heard and present evidence at any
hearing held under section 309(g) of the
Act commenters shall not be accorded
party status with right of cross
examination unless they formally move
to intervene and are granted party
status under j 22.11.
(e) Administrative procedure and
judicial review. Action of the
Administrator for which review could
have been obtained under section
500(b)(l) of the Act shall not be subject
to review in an administrative
proceeding for the assessment of Class
II civil penalty under section 309(g).
(f) Petitions to set aside an order and
to provide a hearing. If no hearing on
the complaint is held before issuance of
an order assessing a Class U civil
penalty, any person who commented on
the complaint mar petition the
Administrator, within 30 days after
issuance of the order, to set aside the
order and to provide a hearing on the
complaint. If the evidence presented by
the petitioner hi support of the petition
is material and was not considered in
the issuance of the order, the
Administrator will immediately set
aside the order and provide a hearing in
accordance with the Consolidated Rules
of Practice and these supplemental rules
of practice. If the Administrator denies a
hearing under section 309fg)(4J(C) of the
Act the Administrator wdl provide to
the petitioner, and publish in the Federal
Register, notice of and the reasons for .
the denial.
[FR Doc. 90-13347 Filed 0-11-60; &45 am]
MJUMQ coot MM-IMI
I
I
r
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III.B.3.
"Relationship of Section 309(a) Compliance Orders to Section 309(g)
Administrative Penalty Proceedings", distributed August 28, 1987. Includes
transmittal memorandum covering items III.B.3 through 11, this Compendium.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
AUG 2 8 1987
MEMORANDUM
SUBJECT: Guidance Documents and Delegations for Implementation
of Administrative Penalty Authorities Contained in
1987 Clean Water Act Arendments
FROM: Lawrence I. '^nsen
-\3sistant A
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- 2 -
With the issuance of these materials, the Regions are now
in a position to begin using sdninistrative penalty authority
subject to t'-.e 1»? le ": 3 t : ~rs 3- 1 -eid 7 a ^ rte rs con : jr re-ice 35
i n 1 ioa te 1 '. ~ ". " e :^;ii-.:-». "•.'•? 3 r ? t - ' *y T t i r t : no t'~«» ten • ^ r '•; i. n j
-J3-/ oloc< f-.r '••:•:?. id :; * r -.••:- 3 ;:;-.;. r r^>-. :e ;n Iraft ?r :o-">s..> 1 i^.r- in is-
trar.iv'? pen-ally ~r-l>>r.i i '. r-3 ^ :y r .• reivel.
List r:f A^lTir. i •;-. r 31 :vq Per. 3 Ivy :3-j i-.jance rcc-jrents
", i 1 : . • : i- ;•• : :.-••--.;.:'.; I;!-? J. : :-. tr. i ^ ^. ^ i L ; -. - .^r-3
e "
•as follows:
1. Relationship o£ Section 309! 3) Jorpliance Or-lers to Section
309(<5) Admi nistr 31 i •.•••» ?en3lty Proceedings.
2. r> -i i'i snce ~>7 ?'".••) .; i : -. : •'•..-or; "!^n v.'i-.er Act A Jnin i str.in i ve ,
Civil en 1 Tr ir.i n.i I Mr. f or :o~-?n t ?«.>n-e 1 ies .
1. Gui-J.'nc'? m "i.i?:-1 •\rriT'. ?r-?-rpt i ~-, Civil 3emlty Actions
•jn-ler tr-.-.' "•? 1 ^ r i 1 "'.•••»•*. '.•.'•T. •:• r \:^..
4. G'j i on " " I a i~- -'• ^ L i r ". i n ; " in -:r. f o'- :e:nerit Actions under
th-? Clean Wat-?r AT".-.
under the Cl«an '.Viter \ct.
Guidance on Effect :f •""! •.•!:*. >.'3r..?r \ct \rr.en Jn»-nt "ivi
Penalty Yss.-ssr.ent
7. Addendum to the Clean Water Act Civil Penalty Policy for
Administrative Penalties.
(?
8. Guidance on Notice to Public and Cotrunenters in Clean Water
Act Class II Administrative Penalty Proceedings.
9. Guidance Regarding Regional and Headquarters Coordination on
Proposed and Final Admin is t rat ive Penalty Orders on Consent
under New Enforcement Authorities of the Water Quality
of 1987.
10. Model Forms for Administrative Penalty °roceedings.
- Sample Letter 10 C.rrrply with 3t3te Consultation Requ i r-iTie
on Proposed .7 1 i i ? '. ir II a. Ir.i n i s ". r 3. f. i v-r Penalty
- Form )F Letter to Pespon lent Covering Complaint
for Class T or II -.r?.in i > r. r ^t Lve Penalty (N'PDES Violations)
-------
- Form of Letter to Respondent Covering Complaint
for Class I or II Administrative Penalty (Dredge or Fill
Violations)
- Form of Complaint in Proceeding to Assess Class I or II
Administrative Penalty (NPDES Violations)
- Form of Complaint in Proceeding to Assess Class I or II
Administrative Penalty (Dredge or Fill Violations)
- Form of Federal Register %'otice of Proposed Administrative
Penalty and Opportunity to Comment.
- Form of Subpoena in Proceeding to Assess Class I or II
Administrative Penalty
- Form of Notice to Comment-era of Hearing to Assess Class I
or II Administrative Penalty
- Form of Consent Order Assessing Class I or II Administrative
Penalty (SPOES Violations)
- Form of Consent Order Assessing Class I or II Administrative
Penalty (Dredge or Fill Violations)
- Form of Final Unilateral Order Asse ;in.-j Class I or II
Administrative Penalty (:.'?DE3 Viola' .ons)
- Form of Final Unilateral Order Assessing Class I or II
Administrative Penalty (Dredge or Fill Violations)
11. Delegations
12. Federal Register Notices for Class I and Class II Procedural
Rules
A separate Section 404 administrative penalty policy continues
under development and will be distributed to the Regions in the
near future. Pending finalization of the Section 404 guidance
document, Regions may wish to consider the May 28, 1987 draft
Section 404 penalty policy for Section 404 administrative penalty
cases.
We want to thank the Regions for their comments on the
several drafts and for their participation in the Agency workgroup
Hiat prepared the delegations, procedural rules and the guidance
documents. The workgroup included representatives from all
Regions who devoted large amounts of time to drafting and reviewing
the many documents involved. The workgroup labored under very
tight deadlines and delivered quality written products on time.
We personally are very appreciative for what really was an
extraordinary effort.
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- 4 -
We plan to hold a Clean Water Act administrative penalty
workshop on September 16 in Washington, D.C. to explain the
delegations, procedures and guidance documents. We hope that
each ?ec,ic-. will -e asle to ser.d z~e or ~ore representatives to
the workshop, w. :r-. is !e =; :r : rre 1 i-. i separate rail in ;.
If you wish any a J j i t i •:". a 1 : ~. f :r~a t i i-. :-. ary/ ^f the r.att-
referenced in the juiiir.ce 4. o; j.r.en t s, please j;ntact John lycn
of OETM 'Tel. FTS 4"--i 1 •>'•-, ^r.-e Lassiter -f :WEP -Tel. -TS
4^3-^30", -, r ?.-sar..-. 3 :..pe< :r -X? 7e 1 . TTS 4 ~ 5-3 ~ ? 3 ' .
Attachments
cc: Workgroup Members
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RELATIONSHIP OF §309(a) COMPLIANCE ORDERS
TO §309(g) ADMINISTRATIVE PENALTY PROCEEDINGS
I. Purpose
The purpose of this document is to discuss the •
relationship between §309(a) administrative compliance orders
and §309(g) administrative penalty proceedings. The specific
issue is whether EPA, as a legal and policy matter, should
join these administrative mechanisms together in one document
that both orders future compliance and proposes administrative
penalties for past violations. This guidance concludes that
administrative compliance orders and administrative complaints
for civil penalties should be kept procedurally separate;
they should be issued and docketed as separate documents.
However, there is nothing to prevent the Regions from issuing
the two types of documents at the same time in response to a
given violation.
II. Discussion
On one level it may appear quite sensible to issue one
document that contains both a §309(a) administrative order to
comply and a §309(g) administrative complaint for civil
penalties. The two actions will often be based on the same
set of facts that establish a violation. The simplicity of a
single document may be more efficient for EPA to issue, and
for an alleged violator to understand. And to propose
administrative penalties for past violations would add
substantial leverage to the prospective commands of a
compliance order.
. However, administrative compliance orders and
administrative complaints are conceptually and procedurally
very different, and there are dangers in joining the two
together. Compliance orders under §309(a) are administrative
commands; they are not adjudications of rights or liabilities,
and they do not impose any sanctions for the underlying
violation or for a violation of the compliance order itself.
Because they do not have such determinate effects they lack
"finality" and accordingly are not reviewable by a court.
(The only exception to this is the limited review that occurs
when EPA in a civil action seeks penalties for a violation of
the compliance order.) EPA has fought hard to maintain the
nonreviewability of compliance orders like those under
§309(a). To have them subject to judicial review or
adjudicatory procedures at the time of their issuance would
seriously undermine their usefulness as an enforcement tool.
On the other hand, assessment of administrative penalties
under §309{g) is an adjudicated remedy. Penalties under
either Class I or Class II procedures can be assessed only
-------
after an opportunity for hearing and notice to the public.
Violators and members of the public can appeal EPA's findings
of violation and penalty assessments to the courts.
The most serious potential problem in joining together
§309(a) compliance orders and §309(g) administrative
complaints in the same document is that compliance orders may
directly cr indirectly become subject to adjudication and
judicial review. Adjudicator/' procedures will, apply to the
portion of the document proposing administrative penalties:
violators will have a strong incentive to force the compliance
order provisions into the same adjudicatcry framework. The
risk of this occurring is most direct if the proposed penalty
assessment is in any way linked to the provisions of the
compliance order. An example of this would be a proposed
assessment that states that administrative penalties will be
reduced if the violator carries out the requirements of the
compliance order. If the two are linked in this way, it may
be very difficult to avoid having the lowest common
denominator-- ad-judicatory procedures-- apply to the entire
document, including the compliance order.
Even if the two are not functionally linked, the compliance
order and the proposed penalty assessment will have much in
common. The two will usually be premised upon the same set of
violations; and, the availability and reasonableness of
corrective measures directed by the compliance order will be
relevant factors for the administrative law judge to consider
in assessing administrative penalties. The provisions of the
compliance order thus may indirectly become subject to
adjudication, and to eventual judicial review. It is true
that a reviewing court most likely would give substantial
deference to EPA on any issue pertaining to the compliance
order. However, any breach in the principle that these orders
are generally not reviewable at all is a very serious matter.
Public comment on the terms of proposed administrative
penalty assessments is another way in which the provisions of
a compliance order— if part of the same document— may be made
part of the penalty adjudication and potentially subject to
court review. Under §309(g)(4), EPA must give public notice
of proposed penalty assessments, and allow the public to
comment on these proposed assessments and participate in any
adjudicatory hearings. If §309(a) compliance orders are
integral parts of these administrative complaints for
penalties, EPA in effect will be giving public notice-and
receiving comments on these compliance order provisions as
well. The public may also attempt to present evidence at the
penalty hearings that the associated compliance orders are too
lax or tod strict. Even if EPA is successful in excluding
such evidence from the adjudicatory proceedings, the effect of
the compliance orders will be blunted and EPA resources will
be diverted to litigating extraneous issues at the hearings.
-------
Procedural complexities are also introduced when
compliance orders and proposed penalty assessments are merged.
One of the most useful aspects of §309(a) compliance orders is
that EPA can amend them at will. Violators may argue that the
primary characteristic of the joint document is its penalty
assessment, and accordingly that the document as a whole
should be governed by the procedural rules established for
administrative complaints. There are limitations on amending
administrative complaints once a violator has filed an answer.
It may be argued that EPA should be similarly limited in
amending its compliance order once an answer is filed.
Violators may also argue that other procedural limitations
applicable to penalty proceedings-- e.g., substitution of
parties, and opportunities to present rebuttal evidence—
should apply to the compliance order. These extraneous issues
will complicate efforts to obtain compliance using a §309(a)
order that is attached to an administrative complaint.
There is a simple way to avoid the risks discussed above:
keep compliance orders and proposed penalty assessments in
separate documents, and do not state in the administrative
complaint that the penalty amount will depend upon meeting the
terms of a compliance order. Given current word-processing
capabilities, there should be little added administrative
burden in issuing these documents separately instead of
jointly. Also, there Is no reason why the two could not be
issued simultaneously. All that needs to be done to avoid the
risks described above is to issue the compliance order and
administrative complaint separately in the first instance.
III. Conclusion
There are substantial risks in issuing §309(a) compliance
orders in the same document with §309(g) administrative
complaints. The most serious risk is that compliance orders
could become subject to administrative adjudication and .
judicial review. This would sharply limit their
effectiveness. The simple route to avoiding these risks,
which the Regions are strongly urged to take, is to issue
compliance orders and administrative complaints as separate
documents.
Contacts concerning this guidance:
David M. Heineck
Office of Regional Counsel, Region 10
FTS 399-1498
Gary Hess
Office of Enforcement and Compliance Monitoring
•FTS 475-8183
-------
r
<
-------
III.B.4,
"Guidance on Choosing Among Clean Water Act Administrative, Civil and
Criminal Enforcement Remedies", distributed August 28, 1987.
-------
I. Decision-Making Process to Determine Appropriate Enforcement Option
VIOLATION
Need for court order to
; a:»
.File Civil act ion .to
cbta-n T30. a -2 -.1
r 0 r c t • . e - e • •?
- i v * ; ce^a ' t • e 5
- f
• T -a
' 0 ' 4 t' C r : . ? ' t " e '
«e s t i §a t' ~r
ment action C5309(c)]
Need for pre* liH nary |
or permanent • iJ'j"C t !cr- . i
and/or civil penalties i y
Of ("CM
Preceser
? t^.an S ' 2 5 , tCO 1
N |
'fa? ' e -5 1 ' ••>;. e • .. , — i
— — —
M le c
DOta 1 n
^r ccur
1 V
In
t-
pe
9'
- — '
i 1 action
junction
imposed c
oa! t' es
b ) and ( d
to
and/
tvl 1
Are
pr
ate to
i " : r, t r i » • . e
pena 1 1 1 e> )
END
; I s s je admt n i -, t
: 3! lance Cr^er
•
•afve com-
Ci309'a) 1 .
525.000 and $125.000: issue
administrative complaint under
•; I.I procedures
2. To assess penalties of up to
S25.000: Issue administrative
complaint under Class I
procedures CS309
-------
GUIDANCE ON CHOOSING AMONG
CLEAN WATER ACT ADMINISTRATIVE,
CIVIL AND CRIMINAL ENFORCEMENT REMEDIES
August. 1987
-------
In the legislative history to the Water Quality Act of
1987, Congress indicated that judicial rather than
administrative enforcement is more appropriate for certain
types of cases:
This authority to issue administrative penalty
orders is intended to complement ar.d r.ct to reclace a
vigorous civil ;uiicial er.fcrcemer.t program. Civil
judicial er.forcemer.t is a >eystor.e of successful
e^^OT**^O^O^^ '** * ^ '** O i "*"• fc a •* ^ "^O^OCC-a^** ^ /"^ w ** a e *a e?
*4*w^^c...e.t*. •w*. *... c rt>— N. d.. -* ..6vS55d*.* *. C Z^ w a S S S
involving novel issues of law or contested penalty
assessments, cases requiring in^unctive relief,
serious violations zf the Act, or large penalty
actions, and cases where•remedies are sought requiring
significant construction or capital investment. The
addition of this enforcement tool is based in part on
the Agency's assurance that it does not intend to
retreat fron vigorous judicial enforcement of Clean
Water Act violations.
S. Rep. No. 99-50, 99th Congress, 1st Session (to accompany
S. 1123) (1985). The following guidance is meant to ;be~
consistent with this Ccr.gressicr.al directive: administrative
penalties should supplement, not replace, judicial action.
One qualification should be added. Although this
guidance may recommend a particular enforcement option for
particular types of violations, other factors-- such as Agency
priorities and available resources-- must also enter into the
enforcement decision.
1. A civil judicial action is more likely to be
appropriate when there is a need for a court order
directing immediate or long-term compliance
measures (a TRO or an injunction).
A basic limitation of the administrative penalty
authority under 5309(g) is that it does not grant EPA any
power to directly compel a violator to stop continuing
violations.• The only direct authority under this provision is
to assess civil penalties. Of course, the prospect of a
significant civil penalty for past and ongoing violations can
be a strong inducement to comply. However, there will be
situations where this inducement, accompanied by a separate
§309(a) compliance order, will not be enough. The $125,000
ceiling on administrative penalties may be insufficient to
discourage continuing violations, for example where the cost
of compliance or the economic benefit is high. Even if a
penalty of less than $125,000 should be enough to deter
ongoing noncompliance, the adjudicator'/ and public involvement
-------
II. Discussion
A. Purpose
The purpose of this document is to discuss the various
enforcement alternatives under the Clean Water Act, including
the recently-added option of administrative penalties, and to
discuss the types of violations that are most appropriate for
each option. This guidance is primarily directed to NPDES
permit-related violations, but it is also consistent with
guidance for Section 404 enforcement (see related guidance).
3. Background
The Water Quality Act of 1987 greatly expanded EPA's
enforcement options under the Clean Water Act by authorizing
the Agency to assess penalties administratively. Prior to
this legislation, EPA had to obtain a court order—either
through a civil action [§§309(d) or 311(b)(6)(B)] or a
criminal action [§309(c)]—to impose monetary penalties for
Clean Water Act violations. The administrative enforcement
authority granted by §309(g) provides a very useful and
flexible third option for imposing penalties.
C. Decision Criteria
EPA may impose penalties under §309(g) for virtually the
entire range of violations that can be addressed through
judicial actions and administrative compliance orders under
§§309(a) through (d). The only exception is that
administrative penalties, unlike judicially-imposed penalties,
may be imposed only for violations of underlying requirements
of the Act and not for violations of §309(a) compliance
orders.I/ since EPA as a general rule should choose the least
resource-consuming enforcement option that will do the job,2/
and administrative penalty proceedings under §309(g) should be
both effective and much less onerous than civil judicial
actions, the real issue is when not to use this administrative
penalty authority. The following discussion, like the
flowchart at the beginning of this document, approaches the
issue from this perspective.
A compliance order that does not expressly excuse
penalties does not limit EPA's authority to assess an
administrative penalty for that violation. Cf.. U.S. v.
Metropolitan District Commission. 23 E.R.C. 1350, 1355-56,
1359, 1360 (D. Mass. 1985).
2/ :An important exception to this general rule is
that prosecutorial considerations on the part of EPA and the
Department of Justice may independently indicate the need for
criminal prosecution, even if a civil action or administrative
enforcement would achieve compliance.
-------
requirements of §309(g) mean that there are uncertainties as
to the amount of penalty that ultimately will be assessed, and
a delay of at least 60 days from the date of the proposed
penalty assessment until that assessment becomes effective.
This may be enough to remove the inducement to stop ongoing
violations.
In the above situations, or in any situation where the
noncor.pliar.ee is serious and continuing and the violator is
uncooperative, EPA should commence a civil action to obtain a
TRO or preliminary injunction enjoining further violations.
In addition, if the violator must take specific measures to
achieve compliance and the measures are complicated, costly or
require a significant period of tine to implement, a civil
action should be commenced to obtain an appropriate mandatory
injunction. Whenever an action is initiated to obtain a TRO
or an injunction, in the interests of efficiency and case
strategy all claims for civil penalties generally should be
included in that action. There may be occasions, however,
when the Agency may choose to file a civil action for
injunctive relief alone.
2. Criminal enforcement rather than administrative
penalty proceedings should be taken for serious
violations that are knowing or negligent.
In addition to establishing administrative penalty
provisions, the Water Quality Act of 1987 expanded the
criminal sanctions of Clean Water Act §309(c). The higher
levels of fines and imprisonment that were established
constitute a strong remedy that Congress clearly intended
should be used in appropriate circumstances.
Whether a particular matter should be', considered for
criminal prosecution will be determined on the basis of
criteria which include the following:
a. Was the conduct knowing or negligent?
b. Was the conduct egregious in nature (e.g., a
blatant disregard for commonly known
requirements)?
c. Did the conduct cause foreseeable environmental
harm?
d. Was the conduct characteristic of a type which
especially should be deterred?
-------
e. Was the violator from a category to which it is
especially important to convey a deterrent
message?
f. Did the conduct involve a particularly
dangerous material?
responsible corporate officers or employees?
The list above should not be considered exclusive. Other
circumstances may arise which also maXe a particular matter
are c r e s e n t, the matter should c e f o rwarded to the region's
Office of Criminal Investigations.
Parallel civil judicial proceedings (as well as
administrative penalty proceedings) generally should be held
in abeyance so long as a criminal investigation or prosecution
is underway, unless it is essential to obtain prompt
*^^'-»™.*"^'*"/o *" o * • o ' ^^*j**i",a^o a *^ ^ ^ *•• .^ » ^ ^* w a 7 a v» ^ ^ *^ ^ ' • *•* A w V^oa^^*1^
^.**v^**.^.w*,*ti ». tr ^ — t; » — J c! *« d .. tr a .» w.. ^ w *,. .^j »• cl £ cl * «* w o «***».* a n iiS a X —. *
OJT ti^6 Gr*.*/ ^r*cr*.rrtGr*.^ • »*r^s**.svs^ d R6Q^on .*ds ccr^C6«rr*s r*6QiirciinQ^
the appropriateness cf initiating parallel civil and criminal
enforcement proceedings, the Office of Regional Counsel for
the Regicn should contact the OECM Office of Criminal
Enforcement, at >'FTS) 475-9660.
3. To assess total civil penalties of more than
S125. OOP, or where .required b'/^national EPA
pol icy, E?A must commence -.ud i c i a 1 act ion rather
The maximum amount of civil penalties that can be
assessed administratively under §2C9(g) is S125,000.
Section 3C9(g)(3) of the Act and ether sections of this
guidance set out the factors to consider in determining the
appropriate penalty amount to be collected.
It is clear that EPA must initiate a judicial civil
action to assess penalties greater than $125,000. For civil
penalties of less than $125,000, there still may be situations
where a civil action rather than an administrative penalty
proceeding is the better option, to preserve the possibility
of assessing penalties of more than $125,000 for given
violations. If EPA believes that the §309(g) process results
in a penalty assessment that is too low, there is no "second
chance" to obtain higher penalties through a §309(d) or
§311(b)(6) civil action.
The decision cecor.es difficult as the appropriate bottom-
line civil penalty approaches $125,000. Cn the one hand, this
-------
may indicate the need to initiate a civil action, to preserve
negotiating flexibility and to avoid placing a cap on amounts
that the Administrative Law Judge may consider. On,the other
hand, administrative proceedings are generally preferred since
they require less of a commitment of Agency time and
resources. In these circumstances the Regions will have to
weigh the resource and penalty factors on a case-by-case basis
in deciding between the judicial and administrative penalty
options.
EPA national policy or guidance may also require the
choice of a particular enforcement option. An example is the
April 1934 guidance supporting the National Municipal Policy,
which presur.es judicial er.forcerr.ent in cases where compliance
will not be achieved by July 1, 1988. Other EPA policies
requiring court enforcement may be developed in the future.
4. EPA nust weigh the costs of pursuing an
administrative penalty action in deciding whether
and when to pursue relatively small penalty
claims.
Up to this point, this document has suggested that
§309(g) proceedings generally should not be initiated where a
higher level of enforcement (civil or criminal judicial
action) is needed. This leaves a wide variety of violations
that are good candidates for administrative penalties. Types
of violations that will generally be more appropriate for
administrative penalties are late or non-submission of DMRs or
other permit-required reports, and effluent violations caused
by poor 0 & M (as opposed to lack of treatment facilities,
which may require an injunction to correct).
For violations that warrant only minor penalties, the
Regions will have to weigh the benefits of enforcement against.
its costs. The costs include potential evidentiary hearings,
solicitation and consideration of public comment, and
potential judicial appeals. However, these costs should not
necessarily deter the Regions from pursuing some number of
relatively small administrative penalties: .taking
administrative enforcement against one of a number of
comparable minor violators, where it may be impractical to
pursue penalties against the entire group, may deter the group
as a whole from similar violations.
III. Conclusion
The administrative penalty authority given to EPA by the
Water Quality Act of 1987 can be used for a wide variety of
violations. ..Administrative penalties will be particularly
useful in dealing with violations that are serious but that in
-------
themselves do r.ct usually justify a judicial enforcement
action— for example, 'late or non-reporting of DMSs. Only
certain categories of violations should not be addressed
through 5309(g) administrative penalties: violations
requiring TROs, injunctive relief, criminal sanctions, or
civil penalties of more than $125,000; and violations where
national EPA policy calls for court enforcement. The wide use
of §2C9rg) i- appreciate circumstances will greatly
strengthen IPA's ability tc er.sure ccr.pliar.ee with the Clear.
Water Act.
Zavii }•!. Heir.erX
ffice cf P.egicr.al Counsel, Region 10
FTS 399-1493
Gary Hess
Office of Enforcement and Compliance Monitoring
FTS 475-9133
-------
:zzzr
GUIDANCE ON CHOOSING AMONG
CLEAN WATER ACT ADMINISTRATIVE,
CIVIL AND CRIMINAL ENFORCEMENT REMEDIES
-------
I. Decision-Making Process to Determine Appropriate Enforcement Option
Under Clean Mater Act §309.
VIOLATION
Need for court order
compel immediate
compl lance?
to
N
F1le civil action to
obtain TRO, and in
general include claims
for injunctive relief
and dvll penalties
C5$309(b) and (d)].
Evidence of criminal
violations, either
negligent or knowing?
N
Commence criminal in-
vestigation and enforce-
ment action [$309(c)].
Need for preliminary
or permanent injunction,
and/or civi1 penalties
of. more than $125,000?
N
Precedential 1
N
eqal issue?
File civil action to
obtain injunction and/
or court-Imposed civil
penalties
[§5309(b) and (d)].
Are violations continuing
or likely to recur?
N
Issue administrative com-
pllance order [§309(a)].
Appropriate to assess
administrative civil
penalties?
END
To assess penalties of between
$25,000 and $125,000: issue
administrative complaint under
Class II procedures
[§309(g)(2)(B>]. . .
To assess penalties of up to
$25,000: issue administrative
complaint under Class I
procedures C5309(g)(2)(A)3.
[N.B.: The dotted lines in the above chart are meant to Illustrate two principles. First. 1f
a civil or criminal action has already been initiated, a parallel criminal or civil enforcement
action should be taken only if consistent with EPA guidance on parallel proceedings. Second.
for violations that are the subject of a civil action for court-imposed penalties.
administrative penalties under §309(g) may not be assessed for the same violations. Another
factor to consider is that violations for which an authorized NPOES state has commenced and is
"diligently prosecuting" a claim for administrative penalties under comparable state authority
may not be subject to a civil penalty action under §309(d). See §309(g)(6)(11) and related
sections of this guidance.]
-------
II. Discussion
A. Purpose
The purpose of this .document is to discuss the various
enforcement alternatives under the Clean Water Act, including
the recently-added option of administrative penalties, and to
discuss the types of violations that are most appropriate for
each option. This guidance is primarily directed to NPDES
permit-related violations, but it is also consistent with
guidance for Section 404 enforcement (see related guidance).
B. Background
The Water Quality Act of 1987 greatly expanded EPA's
enforcement options under the Clean Water Act by authorizing
the Agency to assess penalties administratively. Prior to
this legislation, EPA had to obtain a court order—either
through a civil action [§§309(d) or 311(b)(6)(B)] or a
criminal action [§309(c)]—to impose monetary penalties for
Clean Water Act violations. The administrative enforcement
authority granted by §309(g) provides a very useful and
flexible third option for imposing penalties.
C. Decision Criteria
EPA may impose penalties under §309(g) for virtually the
entire range of violations that can be addressed through
judicial actions and administrative compliance orders under
§§309(a) through (d). The only exception is that
administrative penalties, unlike judicially-imposed penalties,
may be imposed only for violations of underlying requirements
of the Act and not for violations of §309(a) compliance
orders.I/ Since EPA as a general rule should choose the least
resource-consuming enforcement option that will do the job,^/
and administrative penalty proceedings under §309(g) should be
both effective and much less onerous than civil judicial
actions, the real issue is when not to use this administrative
penalty authority. The following discussion, like the
flowchart at the beginning of this document, approaches the
issue from this perspective.
I/ A compliance order that does not expressly excuse
penalties does not limit EPA's authority to assess an
administrative penalty for that violation. Cf., U.S. v.
Metropolitan District Commission. 23 E.R.C. 1350, 1355-56,
1359, 1360 (D. Mass. 1985).
2/ An important exception to this general rule is
that prosecutorial considerations on the part of EPA and the
Department of Justice may independently indicate the need for
criminal prosecution, even if a civil action or administrative
enforcement would achieve compliance.
-------
3
In tJae legislative history to the Water Quality Act of
1987, Congress indicated that judicial rather than
administrative enforcement is more appropriate for certain
types of cases:
This authority to issue administrative penalty
orders is intended to complement and not to replace a
vigorous civil judicial enforcement program. Civil
judicial enforcement is a keystone of successful
enforcement of the Act and necessary for cases
involving novel issues of law or contested penalty
assessments, cases requiring injunctive relief,
serious violations of the Act, or large penalty
actions, and cases where remedies are sought requiring
significant construction or capital investment. The
addition of this enforcement tool is based in part on
the Agency's assurance that it does not intend to
retreat from vigorous judicial enforcement of Clean
• Water Act violations.
S. Rep. No. 99-50, 99th Congress, 1st Session (to accompany
S. 1128) (1985). The following guidance is meant to be
consistent with this Congressional directive: administrative
penalties should supplement, not replace, judicial action.
One qualification should be added. Although this
guidance may recommend a particular enforcement option for
particular types of violations, other factors— such as Agency
priorities and available resources— must also enter into the
enforcement decision.
1. A civil judicial action is more likely to be
appropriate when there is a need for a court order
directing immediate or long-term compliance
measures (a TRO or an injunction).
A basic limitation of the administrative penalty
authority under §309(g) is that it does not grant EPA any
power to directly compel a violator to stop continuing
violations. The only direct authority under this provision is
to assess civil penalties. Of course, the prospect of a
significant civil penalty for past and ongoing violations can
be a strong inducement to comply. . However, there will be
situations where this inducement, accompanied by a separate
§309(a) compliance order, will not be enough. The $125,000
ceiling on administrative penalties may be insufficient to
discourage continuing violations, for example where the cost
of compliance or the economic benefit is high. Even if a
penalty of less than $125,000 should be enough to deter
ongoing noncompliance, the adjudicatory and public involvement
-------
requirements of §309(g) mean that there are uncertainties as
to the amount of penalty that ultimately will be assessed, and
a delay of at least 60 days from the date of the proposed
penalty assessment until that assessment becomes effective.
This may be enough to remove the inducement to stop ongoing
violations.
In the above situations, or in any situation where the
noncompliance is serious and continuing and the violator is
uncooperative, EPA should commence a civil action to obtain a
TRO or preliminary injunction enjoining further violations.
In addition, if the violator must take specific measures to
achieve compliance and the measures are complicated, costly or
require a significant period of time to implement, a civil
action should be commenced to obtain an appropriate mandatory
injunction. Whenever an action is initiated to obtain a TRO
or an injunction, in the interests of efficiency and case
strategy all claims for civil penalties generally should be
included in that action. There may be occasions, however,
when the Agency may choose to file a civil action for
injunctive relief alone.
2. Criminal enforcement rather than administrative
penalty proceedings should be taken for serious
violations that are knowing or negligent.
In addition to establishing administrative penalty
provisions, the Water Quality Act of 1987 expanded the
criminal sanctions of Clean Wr.ter Act §309 (c). The higher
levels of fines and imprisonment that were established
constitute a strong remedy that Congress clearly intended
should be used in appropriate circumstances.
Whether a particular matter should be considered for
criminal prosecution will be determined on the basis of
criteria which include the following:
a. Was the conduct knowing or negligent?
b. Was the conduct egregious in nature (e.g., a
blatant disregard for commonly known
requirements)?
c. Did the conduct cause foreseeable environmental
harm?
d. Was the conduct characteristic of a type which
especially should be deterred?
-------
e. Was the violator from a category to which it is
.=- especially important to convey a deterrent
message?
/
f. Did the conduct involve a particularly
dangerous material?
g. Did the violation reflect conduct by
responsible corporate officers or employees?
The list above should not be considered exclusive, other
circumstances may arise which also make a particular matter
appropriate for criminal consideration. If any such factors
are present, the matter should be forwarded to the region's
Office of Criminal Investigations.
Parallel civil judicial proceedings (as well as
administrative penalty proceedings) generally should be held
in abeyance so long as a criminal investigation or prosecution
is underway/ unless it is essential to obtain prompt
injunctive relief to abate an ongoing hazard to human health
or the environment. Whenever a Region has concerns regarding
the appropriateness of initiating parallel civil and criminal
enforcement proceedings, the Office of Regional Counsel for
the Region should contact the OECM Office of Criminal
Enforcement, at (FTS) 475-9660.
3. To assess total civil penalties of more than
$125.000. or where required by national EPA
policy, EPA must commence judicial action rather
than administrative penalty action.
The maximum amount of civil penalties that can be
assessed administratively under §309(g) is $125,000.
Section 309(g)(3) of the Act and other sections of this
guidance set out the factors to consider in determining the
appropriate penalty amount to be collected.
It is clear that EPA must initiate a judicial civil
action to assess penalties greater than $125,000. For civil
penalties of less than $125,000, there still may be situations
where a civil action rather than an administrative penalty
proceeding is the better option, to preserve the possibility
of assessing penalties of more than $125,000 for given
violations. If EPA believes that the §309(g) process results
in a penalty assessment that is too low, there is no "second
chance" to obtain higher penalties through a §309(d) or
§311(b)(6) civil action.
The decision becomes difficult as the appropriate bottom-
line civil penalty approaches $125,000. On the one hand, this
-------
may indicate -fen~e need to initiate a civil action, to preserve
negotiating flexibility and to avoid placing a cap on amounts
that the Administrative Law Judge may consider. On the other
hand, administrative proceedings are generally preferred since
they require less of a commitment of Agency time and
resources. In these circumstances the Regions will have to
weigh the resource and penalty factors on a case-by-case basis
in deciding between the judicial and administrative penalty
options.
EPA national policy or guidance may also require the
choice of a particular enforcement option. An example is the
April 1984 guidance supporting the National Municipal Policy,
which presumes judicial enforcement in cases where compliance
will not be achieved by July 1, 1988. Other EPA policies
requiring court enforcement may be developed in the future.
4.- EPA must weigh the costs of pursuing an
administrative penalty action in deciding whether
and when to pursue relatively small penalty.
claims.
Up to this point, this document has suggested that
§309(g) proceedings generally should not be initiated where a
higher level of enforcement (civil or criminal judicial
action) is needed. This leaves a wide variety of violations
that are good candidates for administrative penalties. Types
of violations that will generally be more appropriate for
administrative penalties are late or non-submission of DMRs or
other permit-required reports, and effluent violations caused
by poor O & M (as opposed to lack of treatment facilities,
which may require an injunction to correct).
For violations that warrant only minor penalties, the
Regions will have to weigh the benefits of enforcement against
its costs. The costs include potential evidentiary hearings,
solicitation and consideration of public comment, and
potential judicial appeals. However, these costs should not
necessarily deter the Regions from pursuing some number of
relatively small administrative penalties: taking
administrative enforcement against one of a number of
comparable minor violators, where it may be impractical to
pursue penalties against the entire group, may deter the group
as a whole from similar violations.
III. Conclusion
The administrative penalty authority given to EPA by the
Water Quality Act of 1987 can be used for a wide variety of
violations. Administrative penalties will be particularly
useful in dealing with violations that are serious but that in
-------
themselves do not usually justify a judicial enforcement
action— £pr example, late or non-reporting of DMRs. Only
certain categories of violations should not be addressed
through §309(g) administrative penalties: violations
requiring TROs, injunctive relief, criminal sanctions, or
civil penalties of more than $125,000; and violations where
national EPA policy calls for court enforcement. The wide use
of §309(g) in appropriate circumstances will greatly
strengthen EPA's ability to ensure compliance with the Clean
Water Act.
Contacts on this guidance:
David M. Heineck
Office of Regional Counsel, Region 10
FTS 399-1498
Gary Hess
Office of Enforcement and Compliance Monitoring
FTS 475-8183
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III.B.5,
"Guidance on State Action Preemption Civil Penalty Actions under the
Federal Clean Water Act", distributed August 28, 1987.
-------
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GUIDANCE ON STATE ACTION
PREEMPTING CIVIL PENALTY ACTIONS
UNDER THE FEDERAL CLEAN WATER ACT
-------
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GUIDANCE ON STATE ACTION
PREEMPTING CIVIL PENALTY ACTIONS
UNDER THE FEDERAL CLEAN WATER ACT
I. Introduction
The Water Quality Act of 1987, which on Februarys, 1987,
amended the Clean Water Act, contains language limiting EPA's
authority to commence a judicial action for civil penalties
under Sections 309(d) or 311(b) of the Act under certain
narrowly circumscribed conditions relating to ongoing State
administrative civil'penalty actions.I/ This guidance
addresses the question of when, and under whatr-conditions,
might the commencement and diligent prosecution, or
completion, of a State civil penalty action preempt EPA
enforcement action for the same violation or violations.2/
II. What Federal Enforcement Actions can be Preempted bv the
Appropriate State Action?
The operative language of the Act, as amended, is in
Section 309(g)(6)(A). The language is clear that the actions
that may under certain circumstances be preempted, are
"...civil penalty actionfs] under subsection (d) of this
section [§309(d), judicial civil penalties] or Section 311(b)
I/ The relevant section is 309(g)(6)(A), which
follows:
"(6) Effect of Order.- (A) Limitation On Actions Under
Other Sections. Action taken by the Administrator or the
Secretary, as the case may be, under this subsection
shall not affect or limit the Administrator's or
Secretary's authority to enforce any provision of this
Act; except that any violation - (i) with respect to
which the Administrator or the Secretary has commenced
and is diligently prosecuting an action under this
subsection, (ii) with respect to which a State has
commenced and is diligently prosecuting an action under a
State law comparable to this subsection, or (iii) for
which the Administrator, the Secretary, or the State has
issued a final order not subject to further judicial
review and the violator has paid a penalty assessed under
this subsection, or such comparable State law, as the
case may be, shall not be the subject of a civil penalty
action under subsection (d) of this section or
section 311(b) or section 505 of this Act."
2/ Many of the same considerations and conclusions also
may apply to State action precluding citizen enforcement
actions for civil penalties under CWA §505.
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[judicial civil penalties for spills of oil or designated
hazardous'substances] or Section 505 [citizens suits]."
[Material in brackets added.] Therefore it is clear that
EPA's authority to issue administrative orders for compliance
under Section 309(a), to seek judicial injunctive relief under
Section 309(b), to judicially prosecute criminal violations
under Section 309 (c), and to administratively assess civil
penalties under Section 309(g) are unaffected by the new
language regarding preemption by state action. EPA's
authority to issue and enforce administrative .orders for
compliance under Section 309(a) is not only exempted from this
new limitation, but is explicitly preserved by new
Section 309(g)(11).
. It is similarly clear from the legislative history that
the new language on preemption of Federal judicial civil
penalty actions "... is not intended to lead to the disruption
of any Federal judicial penalty action then underway, but
merely indicates that a Federal judicial civil penalty action
or a citizen suit is not to be commenced if an administrative
penalty proceeding is already underway." Remarks of
Senator Chafee, Cong. Record, Jan. 14, 1987, p. S737.
(See Attachment.)
In summary, the federal enforcement actions affected by
the new preemption language of Section 309(g)(6)(A) are
limited to:
1. Judicial Civil Penalties for the same violations
under Section 309(d); and
2. Judicial Civil Penalties for the same violations
under Section 311(b).
The preemption does not affect:
1. Administrative Orders for compliance under
Section 309(a);
2. Judicial Injunction Actions under Section 309(b);
3. Criminal Actions under Section 309(c);
4. Ongoing Judicial Civil Penalty Actions under
Section 309(d);
5* Administrative Civil Penalty Assessments under
•Section 309(g); or
6. Any Federal enforcement action to the extent it
addresses violations different from those
addressed in the appropriate State penalty
action.
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III. What State Actions Can Preempt Commencement of Federal
Judiaial Penalty Actions Under Sections 309fd) and 311fb)?
EPA's policy can be summarized as follows:
Absent compelling circumstances. EPA will not commence
a judicial civil penalty action to collect a penalty for any
violation for which an approved NPDES State has collected, or
has commenced and is diligently prosecuting under comparable
authorities and bv comparable procedures, an appropriate and
adequate administrative civil penalty. The factors which
define comparable authorities and procedures,' and an adequate
penalty, are described below.
A. The State Must be Implementing an Approved NPDES
Program;
In the words of Senator Chafee on the floor of the
Senate (Cong. Record, Jan. 14, 1987, p. S737), "... the
limitation on Federal civil penalty actions clearly applies
only in cases where the State in question has been authorized
under Section 402 to implement the relevant permit program."
In other words, the first criterion for determining whether
State preemption is possible is to ascertain whether the
relevant State is authorized to implement the relevant Clean
Water Act program (e.g. direct discharge, pretreatment, dredge
and fill, sludge disposal) within its borders. If not, EPA
and the State would be enforcing distinct legal requirements
(e.g. a Federal v. a State discharge permit) and thus would be
enforcing against different violations and not be subject to
the §309(g)(6) bar against judicial penalty actions for the
same violation.
B. The State Action must be Concluded, or Commenced and
Diligently Prosecuted;
The second criterion comes directly from the statutory
language: Has the State either "... commenced and is [it]
diligently prosecuting an action ...", or has the State "...
issued a final order not subject to further judicial review
and the violator has paid a penalty ..."? Unless the State
administrative civil penalty action has been concluded as
noted, or has been commenced and is being diligently
prosecuted, no preemption can occur. Thus the mere
commencement of a State administrative penalty action is
insufficient to preempt a federal action if there is evidence
that the State action is collusive, or is not being prosecuted
diligently for reasons either intentional or wholly
inadvertent as, for example, when resource constraints prevent
a State from holding dr concluding requested administrative
hearings in a timely manner. The determination of whether a
State administrative penalty action is proceeding with due
diligence must be made on a case by. case basis, with the
realization that Congress did not intend partial or inadequate
-------
State action to be a shield for violators of the Act, but
rather intended to prevent unnecessarily redundant actions at
the State and Federal levels.
C. The State Statutory Provision must be Comparable to
Section 309
The final set of criteria for determining if Federal
judicial penalty action may be preempted are found underlying
the statutory wording limiting preemption to cases where the
State administrative . penalty action is concluded, or has been
commenced and is being diligently prosecuted "... under a
State law comparable to this subsection ..." , meaning
Section 309 (g). Again Senator Cha fee's remarks on the Senate
floor, Cong. Rec., January 14, 1987, p. S737, are extremely
helpful in interpreting the meaning of the phrase "...
comparable to this subsection . ..." Senator Chafee lists the
following elements which must be present in the State
statutory provision to make it "comparable" and thus able to
support a State administrative penalty action which can
preempt a subsequent federal judicial civil penalty action:
1. The right to a hearing;
2. Public participation procedures similar to those
set forth in Section 309 (g);
3. Analogous penalty assessment factors;
4. Analogous judicial review standards; and
5. Other provisions analogous to the other
elements of Section 309 (g).
The following paragraphs expand these elements. To be
"comparable," and thus able to support a State action capable
of preempting a subsequent federal judicial penalty action,
the state statute must provide:
1. The right of the person to be assessed an
administrative penalty to a hearing analogous to
that provided in Section 309 (g) (2), which provides
at least a reasonable opportunity to be heard and
to present evidence in all cases and, in cases
where the potential liability exceeds $25,000, the
opportunity for a hearing on the record in
accordance with Administrative Procedure Act
procedures (5 U.S.C. §554).
2. Public participation procedures which must be
analogous to Section 309 (g) (4), which provides
that EPA must. give the public notice of any
proposed administrative penalty assessment, the
right of any person who commented on .a proposed
-------
penalty assessment to be heard and to present
- evidence in any hearing requested by the violator,
and if the violator does not request a hearing,
the right of a prior commenter to petition EPA to
set aside the penalty and to hold a hearing
thereon.
3. Penalty assessment factors analogous to those
enumerated in Section 309(g)(3). Based on
language in the Conference Report, Cong. Rec.,
October 15, 1986, p. H10570,3_/ EPA believes that
for preemption to occur, it is not sufficient that
the maximum potential penalty liability under the
State statute be equivalent to the federal limits,
or that the factors to be considered in arriving
at the appropriate penalty be comparable, but also
that the actual penalty collected or assessed must
be adequate and appropriate. This interpretation
is expressed clearly in the Conference Report. It
also is consistent with EPA's current policy which
holds that a prior State judicial penalty action
yielding a grossly deficient penalty does not
preempt a subsequent federal "overfiling" for a
more adequate civil penalty. This criterion is
also reflected in the general principle enunciated
above; namely that EPA will not commence a
judicial civil penalty action for any violation
for which an approved NPDES State has already
collected, or has commenced and is diligently
prosecuting, under comparable authorities and by
comparable procedures, an appropriate and adequate
administrative penalty.
4. Standards of judicial review analogous to
Section 309(g)(8), which provides that judicial
review can be had by filing an appeal within 30
days after penalty assessment, and that the court
shall not set aside or remand the penalty unless
there is not substantial evidence in the record
supporting the finding of a violation or unless
the assessment constitutes an abuse of discretion.
The requirement that to be capable of preempting
federal action, the State statute must impose such
a heavy burden on the appellant, and grant such '
3/ "When a State has proceeded with an enforcement
action relating to a violation with respect to which the
Administrator or the Secretary is authorized to assess a civil
penalty under this provision the Administrator and the
Secretary are not authorized to take any action under this
subsection if the State demonstrates that the state-imposed
penalty is appropriate."
(
-------
deference to the State agency's decision, is
- reasonable because a lesser standard of judicial
review would undermine the integrity and
predictability of the State administrative penalty
process.
5. Among the other elements alluded to by Senator
Chafee, that must be present in a State statute
which might preempt federal judicial penalty
action, is a system for judicial collection of
unpaid administrative penalties analogous to
Section 309(g)(9). This Section provides for a
streamlined judicial assessment of the unpaid
penalty plus interest, attorneys fees, court
costs, and an additional quarterly nonpayment
penalty of 20% of the aggregate amount owed at the
beginning of such quarter. The validity and
amount of the administrative penalty are not
subject to review in the collection action. This
requirement is important because the absence of
such a streamlined judicial collection system,
which insulates the issues of penalty validity and
amount from a second judicial review, again would
greatly undermine the predictability of the
State's process. EPA should certainly not be
preempted from, nor should it hesitate to commence
a judicial penalty action against a violator who
evades payment, for whatever reason, of a State-
assessed administrative penalty.
In summary, in order to preempt federal judicial
penalty action, the NPDES State must have collected, or at
least commenced and be diligently prosecuting, an appropriate and
adequate administrative penalty under a statute comparable to
Section 309(g) in at least the following ways:
1. Right to a hearing;
2. Analogous rights of public participation;
3. Equivalent civil penalty maximum liabilities;
4. Analogous penalty assessment factors;
5. Analogous standards of judicial review; and
6. Analogous collection authorities and streamlined
judicial collection procedures.
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IV. Final Thoughts
From the foregoing it should be clear that federal
judicial penalty actions are not likely to be preempted by
state administrative penalty actions unless States begin to
implement legislation specifically patterned on
Section 309(g). Until that time, which EPA welcomes, the
individual State/EPA Enforcement Agreements might be the
appropriate forum for establishing some voluntary ground rules
for preventing unnecessary duplication of efforts between EPA
and approved NPDES States. Nothing in this guidance should be
construed as limiting the ability of the States and EPA to
agree to certain rules or principles in furtherance of their
cooperative efforts to implement strong and consistent NPDES
programs.
For further information or clarification of this
guidance, contact Jed Z. Callen, Esq. at FTS 597-9882 or
Gary Hess, Esq. of OECM at FTS-475-8183.
Attachment: [Floor Remarks of Senator Chafee]
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January 14, 1987
CONGRESSIONAL RECORD — SENATE
s:
thority aggressively agcinst illegal pol-
J.!'-.TS. even if a rr.cmorc.ndum of
? ;r-ement is not^ concluded with the
Jvjrr'ilary of the A*rmy.
Tl:» corps enforcerncri .-•••• ord—ar.d
•••if Corps of Engineer; i.s i::volvcd in
••h.- — -liows the corps \'.'.~ not been
•. :.':orouj rnough agaar.: ii.'v.yj! dump-
ers. Now we have civcn Hi'A c.'ie au-
::.i>rity to move ai;air>:i i'::^-f poilut-
N!.-•*• parasraph 30S1.;'•.0 • sets out
limitr.tious that prccliice cl'.iy.n suits
where the Federal Government or a
State has commenced and is diligently
prosecuting an administrative civil
penalty action or has already issued'a
f:nal administrative civil penalty order
not subject to further review and the
violator has paid the penalty. The
same provision limits Federal civil pen-
alty actions under subsections 309
and 31Kb) for any violation of the
Federal Water Pollution Control Act.
While redundant enforcement activity
is to be avoided and Slate action to
remedy a violation of Federal law is to
be encouraged, the limitation on Fed-
eral civil penalty actions clearly ap-
plies only in cases where the State in
question has been authorized under
section 402 to implement the relevant
permit program.
A single discharge may be a violation
of both State and Federal law and a
State is entitled to enforce its Q'.vn law.
However, only, if a State has received
authorization under section 402 to im-
plement a particular perrr.itUng pro-
pram can it prosecute a violation of
Federal lav. Thus, even if a nonauth-
orized State takes action under State
la-* against a person who is responsi-
ble for a discharge which also consti-
tutes a violation of the Federal permit.
the State action cannot be addressed
to the Federal violation, for the State
has no authority over the Federal
permit limitation or condition in ques-
tion. In such case, the authority to
seek civil penalties for violation of tne
Federal law under subsections 309(d)
or 311(b) or section SOS would be unaf-
fected by the State action, notwith-
standing paragraph 309(gX6>.
In addition, the limitation of
309(g)(6) applies only where a State is
proceeding under a State law that is
comparable to section 309(g). For ex-
ample, in order to be comparable, a
State law must provide for a right to a
hearing and for public notice and par-
ticipation procedures similar to those
set forth in section 309(g); it must In-
clude analogous penalty assessment
factors and judicial review standards;
and it must include provisions that are
analogous to the other elements of
section 309(g).
Finally, section 309(g)(6>(A) provides
that violations with respect to which a
Federal or State administrative penal-
ty action is being diligently prosecuted
or previously concluded "shall not be
the subject of" civil penalty actions
under sections 309(d). 31 Kb), or 505.
This language is not intended to lead
to the disruption of any Federal judi-
cial penalty action then underway, but
merely indicates that a Federal judi-
cial civil penalty action or a citizen
suit is not to be commenced if an ad-
ministrative pt-i:alty proceeding is al-
ready under.1/- y. ____
OK CO.VSLNT DECREES
This bill r«j::;res that, in connection
with citi/.en suits, notification of pro-
posed consent decrees be provided to
the Attorney General and to the Ad-
ministrator.
It was originally proposed in the Ad-
ministration's bill 2 years ago. The Ad*
ministration bill contained a clause
which specifically disclaimed that the
United Slates could be bound by judg-
ments in cases to which it is not a
party.
That provision merely restated cur-
rent law and thus we decided that it is
not necessary to include it in this bill.
The amendment is not intended to
change existing law that the United
States is not bound, since that rule of
law is necessary to protect the public
against abusive, collusive, or Inad-
equate settlements, and to maintain
the ability of the Government to set
its own enforcement priorities.
Compliance dates for industries for
which effluent guidelines have not
been promulgated have been extended
to March of 1989.
We have had a big problem over
when you have to come into compli-
ance because of the guidelines. EPA
has not been quick enough to come
out and tell industry A or industry F
what they can and cannot do. So we
have reluctantly given them an exten-
sion on these guidelines. The latest is
March 1989. or 3 years from the date
of promulgation of the guidelines by
EPA. whichever is sooner. EPA is
strongly encouraged to get these
guidelines finalized so industry can
comply with the discharge require-
ments as soon as possible. Until such
guidelines are promulgated, the
Agency is expected to proceed under
its current policy with respect to non-
compliance dischargers to meet the
deadline.
A provision establishing a progres-
sive stormwater control program is in-
cluded in the bilL Although the law
now requires EPA to establish dis-
charge requirements for the storm-
water point sources. EPA has been
unable to develop a final permit pro-
gram for these sources. This legisla-
tion sets up a program whereby EPA
must issue permits for storm water
point source discharges in municipali-
ties with population of over a quarter
million within 4 years of enactment.
Within 5 years of enactment, per-
mits for stormwater point sources dis-
charges are required in cities with pop-
ulations between 100.000 and 250.000.
These, discharge requirements are to
contain control technology or other
techniques to control these discharges
and should conform to water quality
requirements. Requirements for storm
water discharges associated with in-
dustrial activities are unaffected by
this provision. The Agei^^las b
unable to move forward ^ffn a ;
gram, because the current law did
give enough guidance to the Are:
Thi.- provision provides such gutf .-.:
and I expect ilPA to move rapid!:,
implement this control program.
The legislation also contains
Senate provision relating to the Ch
go tunnel and reservoir project. Th.
something that has been around
many, many years. This provision c
allows fundin? for this project ur.
section 201(g)C> without regard to
limitation contained in the provisio
the Administrator determines t
such projects meets the cost-effect
requirements of section 217 and 21E
the act without any redesign or rec
struction. The Governor of Illir
must demonstrate to the satisfact
of the Administrator the water qua:
benefits of the project. This provte
does not apply to the cost-sharing
quirements under the other applica
provisions of the bill.
The legislation modifies EPA's c
rent policy with respect to antiba
sliding on best practical judgment a
water quality-based permits. 7
thrust of this provision is to genera
prohibit affected permittees fr
weakening their discharge requi
ments as a result of subsequently p
mulgated guidelines. OnlgAn v<
narrow circumstances can^MJslid:
be permitted, and in no evenwkn it
permitted even if. after a dischar:
leaves a stream, there is an impro
ment in water quality, unless the ar
degradation policy test Is met. Tl
test states that water quality may
lowered only if widespread adve:
social and economic consequences c
be demonstrated through a full intc
governmental review process.
S. 1 also embodies many of the cor
struction grants and revolving loa
fund proposals contained in the bi
first passed by the Senate in 1985. I
other words, this bill was passed, as
mentioned earlier, in 1985; we went '
conference with the House, but •
kept many of the provisions deali
with the construction grants and t
revolving loan.
The bill extends the current $2.4 b
lion annual authorization for title
construction grants for 3 years.
fiscal years 1989 and 1990. the anni
authorization for title II would be i
duced to $1.2 billion. After that, the
Is no more: no further authorizatio
would be made for title II after fisc
year 1990. and the money Is shift
over Into the revolving grants pi
gram.
States would be provided with suf
cient lead time to begin setting <
State revolving loan progj^fe^ T:
bill encourages the creatid^Htrie
self-sustaining financing ewmes
the earliest opportunity by providi:
each State with an option of come:
ing title II construction grants fun
into capitalization grants for SRF 's.
(I- '"
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III.B.6.
"Guidance on "Claim-Splitting" in Enforcement Actions under the Clean Water
Act", distributed August 28, 1987.
-------
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GUIDANCE ON' "CLAIM-SPLITTING" IN ENFORCEMENT
' ACTION? '-MJ.-IR THE CLEAN WATER ACT
-------
GUIIANCE JT: "TLA:*—•?'_:TT:•£" :*.
-.CTICNS VNCE? THE T1£.A:: *AT
s "-"•-.'. i-e-u 3..• r:r -.••? ? i~«r .'•.Lav.— r v. •!>-..
Parallel Vr--.' :sir j*. :v? r-r: ;^-:;;: al Pr:«:ee: .-x:5
r. •vr»rs r ..... r-r-j.-. .• - « ru - .-,• r r . .- »r : .•:::: « .. -
r r i.~.-r 5. art- v. -.i-. ..- .r .-. • i. 3". ; .- ^. v-.-^:.- ^ ;. - A s*j'.-.-5
c - i- iit"-..TL.:~ *r.e *. X". .-•: .' i-. i ir.;-: itrjr. . v- :••'..!. '•; i.":— ir. ill
1 . . ».*.•*- . . .tr 3' ^tr _• 3 l«..,..kWf ._ "?..»- 1 -^? J..« . * . . . i fc • .. . .*!? •<•*.»
"...ar.1 vi T13C : :n. ..-;•.-. resc*?;* - : wn . _T. *".e ^ :.-:-. -.o-.r i-. :r. ..-. as
ar.-1 -. s V. 1 i^'er.tly crts-?c-" ;-vj ar. j-t:.r ^r :^r -.-. :.5 s ,^e^-:r. ; . -
rat :•.••=• r-e-.j.t :es! , . . . sr.all -•-;•: ~M *..".- i .z ;-.•;•; : i ;;v;l
:>?ra»ty acti-:n _r-:er s-Ssec, :•:-. i: -:f 'r.is i'?':^:;.- ;.•::;.!. ;:v:l
?-r.ait:esi :r iect:::n 311(2! [Penalties :cr ioil.s...."
;~racxetec material adc2e<2|.
As a matter of policy, EPA intends not to urocse an acinunistrac'-ve
penalty tor any violation for wrum a :udiciai pwnalv/ r.as alreac/
oeen assessed.
v>*iere a CA violator is resocnsisle tor Tulcisle vi-itations, --e
.Agency may sunultaneously pursue ac:rur.istrat ive penalties of uo to
3125,000 for seme violations, anc 'udicial civil penalties of -p 10
525,000 per day for eacn violation" for ot.K.er violations not addressed
-------
-2-
.""V ~ f — 2-"!""!*" 1="'*'?*' I''.*** C^**~ 3 "V """ *^~'«'"'o~ ""!""""• ^- — ^^ -""•*— i * A 4
»". : - - : • •-" 7----.V, E:?- -jv ;-. :«-.s- t; "sell-." its :iv. L
r-r'.i.v.- . .i.-:i .>rt«*T's-. = i.~-'. tar.eous acr"_i -1 ~ t rat i/e and judicial
i-;ti:-r.3 jr:a i:is* tr.e s-art vi :lat;r r~r "iifer-i'it cast- v. j»3t:;p.5.
••3 a -d-'.^rr ;: crarc::-i, v:v*'.«r, Swcr, cla:.--sciitmc -oul^
r-.-s-l' :.". ar ir.er'f ici^rt -se jr A^er.c/ resources "Mac. cculi
::-ca:r 7..'A -r'.f:rc'rner.i -rf^r•:3. To c--r3-r? t>o s-^ultare-xs
::v:. .>.-'..i.-y ur :•:--; ::.T;S --r-.: r^c-ire Juci: ration cf efforts
-y r.cc-. .e'^i ar.: -ecr.r.irai siarfs, anc rouli ev«n result in
unequal or inconsistent results; In adcition, trie prosecution
vf v^c s •..T^^.tar.e-XiS civi. -per.aity actions IP. different forjms, one
aO"vi7i3trat:ve ana one vjciciai, iignc provide tne violator with an
ar^jner.t for staying -:r.e ^r tr.e ;tr.er 7t tr.e en force-rent oroceedinqs
t: rrev-sr.t i-.cor.sia*=rr.c/, t~.-.s rjctertialiy ielaynr; resciution of
some :t t'.e jut star..: ing viciaiiors..
F:r tr.e aocv*; reasons, E?A sr.OLi^ generally avoid initiating
r^raiiel -;r s i.-.ultar.e xis aori-.istrat i-/e and judicial civil oenalty
procee-'ini^s. Tr.is :ui-ar.ce ioes not aooly to oaraiiel civil
'ad.Tur.istrat ive or :^-:iciai) and criminal actions, -wr.icn nvay sonie-
-.mes ::«=• aocrrcrijte, nor Joes it aooly. to serial civil penalty actions,
•r:tr.»?r adrur.istrat ive :r judicial, in any 2roer or ccmcination, if tne
•:•** -:iv:i penalty ^ct: :n adcresses -r.ly violations -wn ich cxrcurred a:t-=r
•'.e :ac- -.r tr.e -ar. i-rr ronciude-l Jivi; oer.aliy action.
I.-. ac:it:cn, EPA .-nust oe particularly carer-i in rramina its
oenaity ;rcers anc judicial ccnDlaints tc- identify as orecisely as
r»rs.5isle -_ne violations wfucn tne .Agenc/ intends tr.e enforcement action
to acdress so as to avoid possible preemption of future cla ins- for civil
penalties.
Finally-, EPA may, of course, pursue judicial enforcement under
Section 309(t>) of an administrative order for ccrroliance issued pursuant
to Section 309(a). And EPA may at any tune initiate administrative or
.judicial civil penalty actions for tr.e same violations that were the
oasis for an earlier (or indeed simultaneous) Section 309(a) administrative
order for carpiiance.
III. Simultaneous Administrative Penalty Proceedings
Although nothing in the Clean vvater Act or Amendments prohibits
simultaneous.aoninistrative civil oenalty actions for different oast
violations cy tr.e same violator, EPA will oe zn tr.e strongest legal
:round oy avo icing SLTiUltaneous ac.Tj.nist rat ive oenalty actions against
3 sincie violator. Should EPA initiate separate administrative oenalty
-------
-rT-
.1: :-r<5. ^rre £*:•::.:-. j . .- ; : 3.. :-. rases .-
::" -ast v. ;.3* :;r.5 :y .:-•» virlitrr :r 5-:: :;;•*-.•:
".urrer ar.i: ser-.OLS-^ss tt -arrari a r:v. l re^altv -.-. -excess ;: 5L^:..:;
"^ ^ife . -3 , "^* - * r^ '• . • - **^ * *-* ^^».*.1» . *? . . ^ . _ • "f S .!."*• »** T*?J*1 _**
:•". "^ ; i f~r 3C~:- i.itr it . .-• .-•?•• 3. ^'.-e 5 , '-'?*•. -'..- >?' r:?. .735 no ::vii
•.•f-alr y 73C-. This s>r:r-.i;' ~. .*: .'. 1> a., . :s *.~.e jrarT* •- •-"•' -•J~.>.v.r ;.-«-.
:t '."e >-i-^. -; .3*. rjl .'.••.• r»?ral"y ; jC :.v :.J_- jpk i-f.if:, S-' ^'.11 •eLL'Tunac
tJ-.e :.-.^tf :c;e'".c>/ C3-5e: ry xp.:-r3t:sn ?J e^fcrrerer-.c -rrcrcs in cr.e rw
fcr-rs. r: -ally, "."- >»s:ric :!:•./ :t s^-r-rini; ;7-^r.jt;ve relief -rder
iecti-r 2C?'^' aoai-.st "cst 5rjriA.s reset iti-.« v:-;.3C-.:r3 will -3»-en tip
t-.e car: a •-iinal vrt. -. f^r i •v-..r.cti:Jr>. 3r.: per.alty
v. r f.rf^r .'' r* j". : .-. ;r : . ir : • : rat i :-. -: ir. is r- . iar.ce,
:;r-.3j*. .V-: 2. lal.-r". :.s:. ar -TJ -.^-'i-.i ;-r «ir-/ -ie,T :: ,£CM. ar
-------
III.B.7.
"Guidance on Retroactive Application of New Penalty Authorities under the
Clean Water Act", distributed August 28, 1987.
-------
-------
GUIDANCE ON "RETROACTIVE" APPLICABILITY OF
SEW PENALTY AUTHORITIES UNDER THE CLEAN WATER ACT
-------
3 ~ S i " ^ v ^•• — ;j-;- — • — - • • »j ~ r 3 — w: r ~ • r ^ «• •» T ?
cdvjct icn
T-e xater :--al:ty ^ct ~e. '.??", w. i;-. *re- ie? the Clear:
v«a t e r ^. ~ t 7 "*• A r re a t e 1 5 t r e r e «• areas 7 f e x » '. i ' i • -...-.;.» ^ «
liaoility, increased the -axir.:- c;v;l ar.
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result in fines"... of not ^ore than 5100,000 per day of viola-
tion, or by imprisonment of not more than 6 years, -or by both."
The new penalties for knowing endancerment violations are up to
15 years • imprisonment or a fine of not more than 5250,000, or
both for individuals; anl a fine of not more than Si, 000,000
for organizations. The fine and term, of imprisonment is doubled
for second and subse^u^nt convictions under this provision.
The "ex post facto" clause of the Constitution precludes
retroactive application of new criminal provisions, either by
punishinc as criminal that which was not expressly defined as
criminal when committed, or by increasing retroactively a criminal
fine. Thus, the newly created criminal violations such as those
defined in Section 309(c)(3) (knowing endangerment violations),
may not be applied to activities which occurred prior to
February 4, 1987, nor can a sentencing court apply increased
penalties for any convictions pertaining to pre-February 4, 1937
conduct. However, any behavior which was violative of the criminal
provision of the Act as it existed prior to February 4, 1987 may
still be prosecuted pursuant to the provision as it then existed.
III. Civil Judicial Penalty Provisions Generally Not to Be
Retroactively Applied
The Supreme Tourt has ruled that the "ex post facto" clause
of the Fifth Amendment to the Constitution applies only to legis-
lation imposino criminal fines or penal sanctions. Thus the
retroactive application of civil penalties does not necessarily
violate the "ex post facto" clause. However the "due process"
clause of the Fifth Amendment to the Constitution does apply and
may impose restrictions on the retroactive application of the
increased maximum civil penalties. Therefore, in order to mini-
mize the raising of Constitutional issues and the conseguent
expenditure of Agency legal resources, and in light of the strong
likelihood that the old maximum civil penalty liability of "...
510,000 per day of such violation" will, in most cases, still
prove adequate, it is the Agency's policy generally not to seek
the increased maximum civil penalty amounts for violations occur-
ring prior to February 4, 1987, the effective date of the amendments
Exceptions may be appropriate on a case by case basis if it can
be shown, for example, that the retroactive application of the
civil penalty amount is necessary in order to recover the economic
benefit which accrued to the violator by virtue of his violations.
-------
Altho.;c.-. tr.e "i-e rr^-e.ss" :l»jse wculJ rreve-t the retro-
active assessment cf civil -e-alties in cases wnere no authorur--
to .o.otain penalties previously existed, it is the Acency's
position that none cf tne arend.-er.ts to Section 309fd) otr.e*
tua~ tne increase* raxirur penal-ty arount create -ew civil oeralt.
.iaci111 les. I-steal tne aren-j rents t: Sectitn 3 : •» •; • rere'lv
c 1 a r i f v ~ rev. - - s 1 y •» x i ; 11 - -. civil r e - a 11 y a-t~. orities a n j
liabilities. Specifically, the are-irents clarify tr.at violation
of any requirement in an approved pre trea tren t- procrar. is suc'ect
to civil penalties -nder Section 30'9-'-*i. Mso the areno"rent3
clarify that civil penalty liability -r.rfer Section 309'd^ attache.-?
" . . . oer -!ay for each v. elation."
I V. ^-jr-in istrat i ve Penalties Petrcact ive '.'g To Cld Penalty Lirits
.-•••at-t^ry a---'r---s t"J*. ret r~ac 11 ve ly :na.n;e the forun in
wnic.n the penalty will ce ad ;u -I i cated, but not the substance of
tr.e liability, have been ruled constitutional. Therefore the
Acency ray assess adrinistrative civil renal ties under Section
3 3-9'c) for violations which occurred before February 4, 1987, uo
to tr.e lirits of liability which existei at that tire. As.long
as tre a -Jr-1 n i s t r a 11 ••»• penalty assessed 'of ^p to the naximun
airinistrative penalty liacility of 513,000 oer violation up to
the Class I cap of 525,CTO, cr 513,000 per iay up to the Class
II cap of 5125,03-J- Ices not exceed th* previously applicaole.
.." •=• •: 11 c r. 3C9'-i: raxirur civil penalty liability of 510,000 per -!ay
of such violation, there is no probler with retroactive jppli-» :
of the new Section 339'-;) orocedures. Siven EPA's interpretJB|p.n
of each of the slightly differently wor'ieJ limitations as rel^Prj
"per day per violation",* the retroactive apoll cat ion of the new
Section 309fc/) max ir.ur- penalty liabilities arcuably will never
exceed the Section 303'd^ raxi.nun judicial civil penalty liability
t.nat applied prior to February 4, 1937.
For further information or clarification of this guidance,
contact Jed Z. Callen, Esq. at FTS 597-9882 or Gary Hess of OECM
at FTS 475-P193.
• See "Guidance on Effect of Clean Water Act Amendment Civil
Penalty Assessment Language", for a full discussion of EPA's
interpretation of the various civil penalty liability provisions
-------
III.B.8,
"Guidance on Effect of Clean Water Amendment Civil Penalty Assessment
Language", distributed August 28, 1987.
-------
-------
GUI2ANCE ON EFFECT OF CLEAN WATER ACT
AMENDMENT CIVIL PENALTY ASSESSMENT LANGUAGE
— Aoorcpriate Calculations Per Day
and/or Per Violations
-------
GUIDANCE CN EFFECT CF CLtAN *AT£R ACT
AMENDMENT CIVIL PENALTY ASSESSMENT'LANOcAGE
— Aporopriate Calculations Per "?»•/
a"" i ** r ? •? r *."' "' i - • •• —
••5 t "i r -. . t '•'"., 1 'i * ; " • "j-."'-'"" *. ". i -^ ~ ~ •* "'''' "
•? T. a 1 -. / :: SI:,'. ••:•.- : : / , .r i :-;-:•;- r 2 •:.-•» : e .-. a 1 1 y : f SIJ, - '
-?r -3y. 3.r.;--;- -. -. - •? ." '. j i • I '. :r i - i.s t r a t i ve -ax::--.-, i joe3.5.-.e
, £ 325,530 a -.-I tr.e ."lass II \ 1- i - L .> -. r 1 1 :•/•» -axirsun ^f 3125,000.
or -;ji:jr.-:e ;r. i.-.-i -_-w i-.it.-.;ry :an;ja;e f-; j-ard ing "3in^l-»
perational ^^s^-.H ar.i .^r.y -.-ff-.;t ; : -ay rave on civil penalty
iaDility 73 lc- 1 ate-J as i-.« siit-t^ry rax-.rur' aroj-":, see a
^parJt-:- :-: 1a-:e !-:,-•?-.* r • >r 1 : , • r i ~ . - ~ i *. : -.:-.•? Pe^isr. 5 m
3 " •• r '. 1 1 •* •
•••h4": .' •- :r-?.-35 :;'-r" :•„» : -. .-e "'.••:••. ..'jtv - ;t, nr 'jv i i i p.'7 fo-c
:-. :r-?ast?-. -rivil -.•»-* 1 • :»r : v. 1 t:r i :r ;-:--.-•> r :v^ penal •.:•'?•?, it
•ihr-23'3-1 -.'30" --?-»'.-./ ~r :v.-;::-. j'.•.':-1'./ :. •' -rortly. -Xr jnil'/Ti
5 t r. •? 1 i •**. T u .i i •.? - "• ". ' '.'. ", 1 : " L '• •-• i" r'', ' • ' '. ". ~ " •? • , . - - -
"• >»- :y - r i :•"::••, ;•::.*•• • • : • •; '. '. ~ r :•: • •. - .• - :• • •: . -. -•.• rr''
:7 i i ; -•: I : - -•"••••-. 7 ~ . i , • . . • • - : - •; : • •:: i r ». ". • ''. •-• i"
•Vat-jr ACT r-*-'1.. i r-1 "••?"•. t > "r ~-?r~it :•-.'•.•.::••• r- i-;-p.ar at-?ly sua^e
t o r -.- -i 3 '. " •/ vs -•?;s .?-•»"•• . - ^ • : - • -. 1 • .• •• r y : v.- . : - •: : --. 1.1 -. i -,.-. ^
; in r. in.;'? .
The nar.ner In. which penalty liaoility -.3 alleged in civil
or aclministracive complaints is affected by interpr^tion of this
statutory language, as is the Agency's -assessment of penalties.
With resnect to civil or administrative complaints ?r proposed
orders, EPA will operate from the stron;-*3t ^sition where such
^leadir.^s allege the oreci-5e =".at-t~ry '.317:5:-? f~r penalties .p
to each applica2.le. statutory -axi.--n penalty -s-t^nt.
In considering t'-.e -.--oer ?f viol at i :r. 3 :;- tr i~.t 1-7 to
penalties in judicial :r i-i-ri^istrat ive pro:-re i 1173, Ajer.cy
e^.forcerrent persornel shculi arco-^rt f:r t'r.e tt.ta'l r.uroer -ze.
violations of Clean '.Vater V*t r^C'j i reren ts , ".-rrr-i~. : ;.n-i-it io"~ or
1 ir.i t at i t ~ s t."s.-. : c r - r :-. a -ay« "». 3 we'. 1 3= •••? -. .~'.^r .f i=/s
:*rr. 11-. . ?^ . Tu.e .-.ro.-. t -". - ^ ::L;.l
ray rite t".;3 ar?--?. t -. : .:'$ :r~::c^-: •- • i :- 5 ; - • - ~ '.". '-•"• '-'.~'.".'. '.-.^-.
tive cc^plaint ar.i propo.-sel ;r-'er, :j-;j-r:". "• tr.e statutory
caps on 'total penalty assesareit.
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- 2 -
The Provisions
The following chart sets out the evolution of the various
penalty provisions in the process of amending the Clean Water
Act.
IL JUDICIAL
ADMINISTRATIVE:
'J L.AS 3 I
MAX. 325,000 •
ADMINISTRATIVE:
CLASS II
MAX. 5125,000
Before 1337
Amendments
510,000 per day of
such violation
i
Sen. Bill,
31123
525,000 per day for
eacn violation
510,000 per day for
each violation
5. Rep. 50 525,000 per violation .
• 510,000 per day for
I each violation of a
I Clean Water Act
• requirement
House Bill, ! 525,000 per day of
HR 8 I such violation
510,000 per day of
violation
H. Rep. 189 , 525,000 per day
i 510,000 per day of
violation
1936 Conf.
3U1/1987
Amendments
525,000 per day for
each violation
510,000 per
violation
510,000. per day for
each day during which
.the violation
continues
At issue is the question whether EPA may assess a number of
violations in a single day, or only a single violation continuing
for several days.
Discussion of Interpretation
In amending the enforcement provisions of the Clean Water
Act, Congress generally sougnt to expand the Agency's enforcement
authorities. \ Additionally, the legislative history reflects
133 Cong. Rec. S73.6
C ~ a f .3 e )
(January 14, 1937)(statement of Sen
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no intent to limit the Agency's past practice, either in pleading
the statutory maximum or in using the penalty policy. In fa
Congress ratified the Agency's penalty policy and practices by
incorporating in*? hasic pr i ~c ip les in the Act. .^ee §313 c^
There is no -ioubt that there was -, D change, except as t3
Icllrsr ceilir.o, to civil ^udicial penalties. Jn its race, the
3r->r. ;•••{ statute states that .1 vi-lat^r shilL he suh-e-ct t .2
."I"., . :•> per c"a/ f ;.- .>3;-. v;.; L at : :r. . Furthermore, Jon;ross says
.-I'.'arly tr.at "Sect::-1. 2 : "> ir.,1 4:4 : : tr.e Act are anen^e^l ... t :>
clarify t".at each disti-. :t violation is subject to a separate
-.laily penalty ^ssessr.er.t of jp to $25,000..." H.R. Rep*. No.
1004, 99th Cong., 2d Jess., 132 Cong. Rec. H10569 (Oct. 15,
1936;.
:/ ; r a -J r : r. 15*. rat :•/••>• penalties, the .7^03 ti:r, is whether a
:-';:••.• .-•.••= tr: :tiv" -. r. t.-> r^ .-•.- 1 3 1 ; "jr. applies. Jlass I penalties are
t: :.•• :•;:•.- j-sel "per v i ; 1 a t : •?.-;" . Congress explicitly states that
"Tu.o raxi-un f i r =; t t :~r ronalty t^.at r.ay ho as.sesse-i i.~. any
-.- r.f 7 r : er-o r. t .17-;: -. : ; 525,00^, recaril^ss of the number of
violat: ^ns or n-r.t^r - f -.jays of v to lac ion. M.S. Rep. No. 1004,
99th "tr.-., 2d ioss., 132 :-r.o. P.GC. fil'JSTl (Oct. 15, 1936)
( or:p.r.2;3 i<> a^^e^'. Ac cord ir.~ ly , the nur^bor of violations ar.'J the
njr^»?r '£ •Jay^j of violat; :". *re to he corii-ierej in Tlis3 I
"•:•?.•? I ty : •"SOT. ire n t , ;r t -, t .•• rip -n li »r;lity. 7h-> 'li^.s II
:• • -. j 1 - / p. r • v :•»;•:-., wh : • . : t a t-*-; t • -i t N n^ :•.••-. j 1 ty ^na i 1 .-•? pt^r
•:•!•/ *:or t?ach lay duri.no w;:irh the violiti'.n continues, -.ihoull
co :. "i it-' rpre to-1 ^ir?iiarly.
In conclusion, the Agency's policy with respect to
calculating counts (i.e. violations and days) of civil penalty
liability has been unchanged by the Clean Water Act amendments,
and may be extended in application to the new adpinistrative
penalty provisions. For further information, please contact
Patricia Mott, attorney in OECM/Water (FTS 475-832C .
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III.B.9.
"Addendum to the Clean Water Act Civil Penalty Policy for Administrative
Penalties", distributed August 28, 1987.
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ADDENDUM TO THE CLEAN WATER ACT
CIVIL PENALTY POLICY FOR
ADMINISTRATIVE PENALTIES
-------
ADDENDUM TO THE CLEAN WATER ACT
CIVIL PENALTY POLICY FOR
ADMINISTRATIVE PENALTIES
I. Purpose
The purpose of this Addendum is to provide guidance on tne
calculation of acceptable settlement amounts for EPA claims for
administrative penalties authorized by Section 314 of the 1987
amendments to the Clean Water Act. Under that provision, codified
as Section 309(g) of the amended Clean Water Act, the Administrator
may assess a Class I civil penalty of up to $10,000 "per violation"
to a maximum of $25,000 and a Class II civil penalty of "$10,000
per day for each day during which the violation continues," to a
maximum of $125,000.
At this time, this Addendum applies only to the calculation
of administrative penalties and does not affect the calculation
of penalties for judicial actions. Neither does it apply to the
calculation of penalties for violations relating to the discharge
of dredge or fill materials regulated under Section 404 of the .'
Clean Water Act. Guidance for calculation of penalties under
Section 404 will be issued separately. At a later date, all
provisions of the Clean Water Act Civil Penalty Policy will be
re-evaluated to determine whether the methodology should be
made identical for both administrative penalties and civil
judicial actions.
The calculated penalty figure represents a reasonable and
defensible penalty which the Agency will agree to accept in
settlement of its administrative penalty action against a
violating permittee. The complaint/proposed order should
include the penalty amount which "the Administrator proposes
to assess" as compared .to the "settlement" amount calculated
under this Policy; thus, the amount which the Administrator
proposes to assess or seeks in administrative litigation by
no means needs to be identical to the amount calculated under
this Addendum as acceptable for settlement.
II. Penalty Calculation Methodology
As for judicial penalties, the initial calculation should be
an estimate of the statutory maximum penalty in order to determine
the potential maximum penalty liability of the defendant. The •
penalty which the government seeks in settlement may not exceed
this statutory maximum amount. For administrative penalties, in
addition to being governed by per day/per violation maxima, the
government may not seek more than $25,000 in penalties through
a Class I action nor more than $125,000 through a Class II
adminstrative action.
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The admi.nstrati.ve penalty calculation. involves tne sair.e four
consecutive steps as for civil judicial actions:
1) -calculate the "Economic Benefit" of noncompliance;
2) calculate monthly and total "Gravity Components";
3) calculate the "Adjustment Factors";
4) calculate the total penalty.
t
(1) Ecomomic Benefit. The economic benefit component typically
should be calculated by using the EPA computer program —
"BEN". This program, which produces an estimate of the
economic benefit of delayed compliance, includes/ among
other costs, avoided operating and maintenance expenses
and thus should be usable in nearly all cases. If for
some reason, the violations at issue are of such a unique
nature that their associated economic benefit is not
calculable through BEN, then the penalty calculation
should include any significant economic benefit calculated
through a reasonable methodology.
(2) Gravity Component. The gravity components to be used in
calculating administrative penalties differ slightly from
the components used for civil judicial penalties, althougn
the general methodology is the same. The following five
gravity weighting factors should be considered for each
month during which there was one or more violations and
should be assigned values according to the attached
methodology:
"A" —. Significance of Violation. The definition is
unchanged from that for civil judicial penalties.
Note that this factor includes discharge violations
by indirect dischargers.
"B" — Health and Environmental Harm. The value for impact
on the aquatic environment has been changed from
1-10 to 0-10 for administrative penalties to reflect
the fact that some violations addressed through
administrative penalties are of a type which may nave
little or no impact on the aquatic environment. This
factor also explicitly includes impact on a POTW oy
a violating industrial user within the 0-10 range.
"C" — Number of Violations. This factor is unchanged from
that, to be applied for civil judicial penalties.
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-3-
'H? T- Duration of Noncompliance. This factor is unchangM
from that to be applied for civil judicial actions^
'E* — Significance of Non-effluent Limit Violations. This
factor is presently not applied for civil judicial
penalties but should be included in the gravity
calculation for administrative penalties. It
has a value of 0-10 and should reflect the degree
of deviation from the requirement for the most
significant non-effluent limitation violation
each month. Violations covered by this category
might include failure to report, late reporting,
schedule violations, laboratory analyses deficiencies,
unauthorized discharges, operation and maintenance
deficiencies, sludge handling violations and other
non-effluent violations.
(3) Adjustment Factors. The same three adjustment factors
will be used for administrative penalty calculations as
for civil judicial penalties; however, additional language
is added to make clear that the statutory factors are
included for consideration. The consideration of "history
of recalcitrance" may only result in an increased penalty.
The "ability to pay" and "litigation considerations" may
be applied to decrease the penalty.
(A) History of recalcitrance
In addition to the reasons identified for application
of the recalcitrance factor in the main text of the
CWA Civil Penalty Policy, the compliance history of
the respondent should be considered in examining the
history of recalcitrance. Where the respondent has a
history of repeat violations or a series of recent
violations which have not been satisfactorily corrected,
a factor for recalcitrance should be applied in deter-
mining the penalty amount. In evaluating the history
of compliance, it is appropriate to consider compliance
at other facilities owned or operated by the violator
as well as the violator's response in correcting the
problems.
In assessing equitable considerations under History
of Recalcitrance, the degree of culpability of the
violator for the violation should be considered.
Factors which might be examined include the degree
of control the violator had over the events leading
to the violation, whether the violation could have
reasonably been anticipated, and whether the violator
took reasonable precautions to avoid the violation.
Where facts demonstrate the violation was largely
within the control 9f the violator, increasing the
penalty may be justified. .
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-4-
(BL Ability to Pay
There Is no change in this adjustment factor from
that applied for civil judicial penalties.
(C) Litigation Considerations
There is no change in tnis adjustment factor from
that applied for civil judicial penalties.
III. Intent of Policy
The policies and procedures set out in this document are
intended for the guidance of government personnel. They are
not intended, and cannot be relied upon, to create any rights,
substantive or procedural, enforceable by any party in litigation
wich the United States. The Agency reserves the right to act
at variance with these policies and procedures and to change
them at any time without public notice.
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Addendum to Clean Water Act Penalty Policyi Calculation Methodology
SETTLEMENT PENALTY1' 2 « (ECONOMIC BENEFIT) + (GRAVITY COMPONENT)
+ (ADJUSTMENTS)
Step 1: Calculate the Statutory Maximum Penalty
Step 2: Calculate the Economic Benefit Using "BEN" 3, 4
Step 3: Calculate the Total Gravity Component 5
- Monthly Gravity Component = ($1,000) x (1+A+B+C+D+E)
- Total = Sum of Monthly Gravity Components
GRAVITY CRITERIA ADDITIVE FACTORS
A. Significance of Effluent Violation**
Li/
% Exceedence
Monthly Avg.
0-20
21 - 40
41 - 100
101 - 300
301 - >
% Exceedence
7- Day Avg.
0-30
31 - 60
61 - 150
151 - 450
451 - >
% Exceedence
Daily Max.
0-50
51 - 100
101 - 200
201 - 600
601 - >
Conventio
Toxic Non-Toxici
0-3 0-2
1-4 1-3
3-7 2-5
5-15 3-6
10-20 5-15
B. Harm to Health, Environment or Treatment Plant7
(i) Impact on Human Health; or 10 - Stat. Max
(ii) Impact on Aquatic Environment; or 0-10
(iii) Impact of IU on POTW (Pretreatment Violations) 0-10
C. Number of Violations8 0-5
D. Duration of Noncompliance9 0-5
E. Significance of
Non-Effluent Limit Violations10 0-10
Step 4: Include' Adjustment Factors
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-2-
A. History of Recalcitrance^- (Addition)
- Penalty may be increased by up to 150 percent
'based upon the past and present recalcitrance of
the defendant and for other matters as justice may
require.
B. Ability to Pay (Subtraction)
Penalty may be adjusted downward to represent the
defendant's ability to pay.
C. Litigation Considerations (Subtraction)^2
Penalty may be adjusted downward to reflect the maximum
amount which the court might assess if the case proceeds
to trial.
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ADMINISTRATIVE PENALTY CALCULATION METHODOLOGY: FOOTNOTES
1. In general, the Settlement Penalty amount shall be at least
the Economic Benefit of Noncompliance plus a gravity component.
2. The maximum Judicial Settlement Penalty shall not exceed the
amount provided by Section 309(d), $25,000 per day for each
violation. The maximum Administrative Settlement Penalty
shall not exceed $10,000 "per violation" or $25,000 for
Class I violations and $10,000 "per violation for each day
^during which the violations continues" or $125,000 for Class II
violations. Note also the statutory requirement that "a Single
Operational Upset which leads to simultaneous violations of
more than one pollutant parameter shall be treated as a single
violation."
3. Calculate all economic benefits using BEN, if possible.
There is no minimum amount triggering the use of BEN. If BEN
cannot be used, estimate economic benefit using best available
information.
4. Economic benefit is to be calculated as the estimated savings
accrued to the facility; i.e., it is to be based upon the total
amount which should have been spent by the facility. (All capital
and expense costs, direct and indirect, are to be considered.
This includes operation and maintenance costs.)
5. The Total Gravity Component equals the sum of each Monthly Gravity
Component for a month in which a violation has occurred.
6. The Significance of Violation is assigned a factor based on
the percent by which the pollutant exceeds the monthly or 7-day
average or daily maximum permit limitation and whether the
pollutant is classified as toxic, non-toxic or conventional. The
Significance of Violation factor is used for effluent limit
violations only.
7. Where evidence of actual or potential harm to human health exists,
a factor from "10" to a value which results in the statutory
maximum penalty should be assessed. Where the identified impact
or potential impact relates only to the aquatic environment, a
factor from "0" to "10" should be used. Similarly, where the
impact or potential impact is on a POTW by an Industrial User not,
meeting pretreatment requirements, a factor of "0" to "10" should
be used.
8. The Region has the flexibility to assign a high penalty factor
where an excessive number of violations occur in any month
(effluent limit, reporting, schedule, unauthorized discharge,
bypass, etc.).
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9. The Duration of Noncompliance factor allows the Region to increase
the monthly grav.ity component for continuing violations of the
same parameter(s) or requirements). Generally, a "long-cerm"
violation is one which continues for three or more consecutive
months.
10. The Significance of Non-Effluent Violation- factor covers the
effects from all non-effluent violations—other than the inter-
ference effects on a POTW from an IU's pretreatment violations
(see B iii)—such as reporting (nonsubmittal, incorrect and
late Discharge Monitoring Reports), laboratory analyses deficiencie
(includes DMR QA), unauthorized discharges, operation and
maintenance deficiencies, sludge handling and schedule violations.
11. A factor ranging from "0" (good compliance record, cooperation
in remedying the violation, no culpability) to 150 percent of
the total of the Economic Benefit and Gravity Component may be
added based upon the history of recalcitrance exhibited by the
violator.
12. The penalty should be reduced by any amount which defendant
paid as a penalty to a State or local agency on the same .
violations pursuant to State law.
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CWA Penalty Summary Worksheet
Name and Location
of Facility
Date of Calculation
(1) No. of Violations » _
x $10,000 *> stat. max. » $_
(2) Economic Benefit ("BEN")
(period covered/
months) »
(3) Total of Monthly Gravity
Components $
(4) Benefit + Gravity TOTAL
(5) Recalcitrance Factor %
(0-150%) x Total (Line 4) - $
(6) Preliminary TOTAL (Line 4 + Line 5)
ADJUSTMENTS
(7) Litigation Considerations
(Amount of reduction)
(3) Ability to Pay
(Amount of reduction)
(9) SETTLEMENT PENALTY AMOUNT
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III.B.10.
"Guidance on Notice to Public and Commenters in Clean Water Act Class II
Administrative Penalty Proceedings11, distributed August 28, 1987.
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GUIDANCE ON NOTICE TO PUBLIC AND COMMENTESS
IN CLEAN WATER ACT CLASS II ADMINISTRATIVE PENALTY PROCEEDINGS
I. Statutory Recruireir.er.ts of Notice to Public and Commer.ters
The Clear. Water Act requires that, "before issuing an
order assessing a Class I or II penalty, the Administrator
shall provide public notice of the proposed'issuance of the.
order. Section 309 (g) (4) (A) . Persons who comment on a
proposed assessment must be given notice of any hearing held,
and notice of the issuance of the order that actually assesses
the penalty. Section 3C9(g)(4) (B) . EPA's Guidance on Class I
Clean Water Act Administrative Penalty Procedures ("Class I
Guidance") sets forth procedures by which EPA provides public
notice in Class I proceedings. As set forth below, EPA should
provide public notice in Class II proceedings in a manner
similar to the procedures set forth in the Class I Guidance.
II. Public Notice of the Proposed Issuance of an Order
EPA should provide public notice of the proposed issuance
of an order assessing a Class II penalty in the form and
manner set forth in §126.102(b) of the Class I Guidance,
except that the notice should refer to the comment period set
forth in 40 CFR 22.28(d), and should not refer to the comment
period set forth in § 126.102(b)(1) of the Class I Guidance.
III. Providing Corsrrer.ters with Notice of Hearing
As set forth in §126.104(e) of the Class I Guidance, the
Presiding Officer should serve notices of hearing on each
person who commented on the proposed Class II assessment.
IV. Providing Conunenters wi,th Notice of Order Assessing
Penalty
As set forth in §126.102(e) and §126.111 of the Class I
Guidance, the Hearing Clerk should serve a copy of the final
order on each person who commented on the proposed Class II
assessment.
For further information regarding the guidance, contact
Gary Hess, OECM, at FTS 475-8183.
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III. ADMINISTRATIVE ENFORCEMENT
593
A
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"Secondly, the Conferees agreed that a
State may attach to any Federally issued
license or permit such conditions as may be
necessary to assure compliance with water
duality standards in that State.1* Leg . Hist.
at 176.
The legislative history of Section 401 thus shows that Congress
intended that the certifying State be the State with jurisdic-
tion over the navigable waters at the point of discharge.
The language of Section .401 itself further supports the '
same conclusion. First, Section 401 (a) (1) grants certifi-
cation to the State "in. which the discharge originates or
will originate." Under Section 502(12) the discharge of
the pollutant is defined as "any addition of any pollutant
to navigable waters from any point source." Thus, there
is no discharge until the pollutants enter navigable waters.
For the purposes of Section 401, at least, the discharge
thus originates at the point at which it enters the navigable
waters. 4/
Secondly, when an interstate water pollution control
agency "has jurisdiction over the navigable waters at the
point where the discharge originates or will originate"
it, rather thaa any State has the certifying authority.
This is -further indication that the certifying authority
derives from jurisdiction over the navigable waters, not over
-the land where the facility is located.
Section 401(a)(3) provides further support for this con-
clusion. Pursuant to Section 401 (a) (3), a certification with
respect to the construction of any facility also is binding
upon any subsequent operating licenses for such a facility,
except that the certification may be withdrawn because of
changes in four circumstances:
T7 In his discussion of Section 401, Senator Muskie says
that the certification should come "from the S-tate in which
the discharge occurs. " (Leg. Hist, at 1388, emphasis added)
While there may be some question as to where a discharge
originates, there 'can be no question that the discharge
occurs in navigable waters.
It may be that the Congress used the word originates
to- distinguish between the State in whose waters the discharge
initially enters from a downstream State whose waters are
also affected by the discharge. See footnote 5, infra.
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(A) 'The construction or operation of the
facility, (B) the characteristics of the
receiving waters into which such discharge
is made, (C) the water quality standards
applicable to such waters, or (D) applicable
effluent limitations or other requirements."
A concern for the receiving waters and the criteria
applicable to such waters is primarily a concern of the
State which has jurisdiction over the receiving waters.
A State in which the facility is located may have a variety
of concerns about the facility but does not have any direct
concern or jurisdiction over the waters affected by the
discharge.5/
Our interpretation of Section 401 is further buttressed
by a reading of Section 402 of the Act. Under this section,
permits are issued to point source dischargers. Although
permits are initially issued by EPA, the Act provides that
the permitting authority may be transferred to a State which
has an adequate program. Section 402(a)(5) provides for
a temporary transfer, while Section 402(b) provides for
a more permanent transfer. Both sections provide that
the State has the power to issue permits for all discharges
into its navigable waters:
"The Administrator shall authorize a
State, which he determines has the capa-
bility of administering a permit program
which will carry out the objective of this
Act, to issue permits for discharges into
navigable waters within the jurisdiction
of such State." Section 402(a)(5) (emphasis
added) .
T/Section 401 does provide protection for any other State
whose water quality may be affected by the discharge. Section
401(a)(2). Such State may object to the issuance of a permit
and request a public hearing. The permitting agency is then
required to hold a public hearing and to "condition .such
license or permit in such manner as may be necessary to in-
sure compliance with applicable water quality requirements."
States whose waters may be affected by the issuance of
an NPDES permit by another State also have rights to assure
protection of their water quality. See Sections 402(b)(5)
and 402(d)(2)(A).
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"
At any time after the promulgation of
the guidelines required by subsection (h)(2)
of Section 304 of this Act, the Governor of
each State desiring to administer its own •
permit program for discharges into navigable
waters within its jurisdiction may submit to
the Administrator a full and complete descrip-
tion of the program it proposes to establish
and administer under State law or under an
interstate compact." Section 402(b) (emphasis
added ) .
Thus, the explicit statutory language of Section 402 autho-
rizes a State to issue permits for all discharges into
navigable waters within its jurisdiction. 6/
In its letter requesting our opinion on this issue, the
Public Service Company of Indiana suggested that the oppo-
site answer would be preferable administratively since it would
avoid the necessity of making a factual/legal determination
in each case as to who owned the waters at the point of dis-
charge. We recognize that in some circumstances such a deter-
mination may demand the resources of .the permitting agency,
but we believe that these considerations are insufficient to
override the clear language of the Act, its legislative history,
and its -goals.
It has also been suggested that in issuing permits to
facilities located in another State, the permit granting
State may encounter difficulties in providing for inspection
and monitoring of the facility, and in the enforcement of .
the permit. We do not regard these difficulties as insuper-
able, since we assume that all permits would include provisions
allowing the issuing State to monitor and inspect the facility.
In enforcing these provisions, or other provisions of a
6/ The House Report 'clearly states that a permitting State
does not have jurisdiction to issue permits for discharges
into navigable waters outside of State's jurisdiction:
Subsection (a) (5) further pr.ovides that the Administrator
may authorize a State, which he determines has the capability
of administering a permit program, to issue permits for the
discharges into the navigable waters within the jurisdiction
of such State (but not in the contiguous zone or the ocean).
Leg. Hist, at 813. (emphasis added). .
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10
permit, the issuing State could bring an action in its State
courts and should be able to establish that the defendant
had sufficient contacts necessary to support the State's
long-arm jurisdiction.
The questions answered in this opinion have not pre-
viously been formally addressed by this Agency. It is our
understanding that this opinion is consistent with the
actual "real world" permitting and certifying activities
in most regions. A number of regions, however, have evident-
ly allowed States to certify and to issue permits to facilities
located in such States which discharge into the navigable
waters of another State.
A permit issued by a State which does not have the
authority under the Clean Water Act to issue such a permit is
jurisdictionally defective, and would not therefore provide a
discharger with the protection provided by Section 402(k) of
the Act. I urge the Assistant Administrator for Enforce-
ment to take whatever steps are necessary to expedite the
re-issuing of such permits.
On the other hand, a Federal permit issued despite the
lack of certification from the proper State remains vali'd.
The Federal agency which issued such permit had the jurisdiction
to take such action. To the extent that the permit is incomplete
or illegal because of lack of proper certification, any injured
party could seek judicial review of such permit under the appro-
priate provisions of Federal law. Any State which failed to as-
sert its certification rights within the prescribed statutory and
regulatory time period may be deemed to have waived such rights
pursuant to Section 401(a)(l) of the Act.
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II.A.5,
"Request for a Legal Opinion-Inclusion of Compliance Schedules in Second
Round Permits and Newly Issued Permits", dated January 19, 1979.
•->
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.1 ' UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
' WASHINGTON. D.C. 20460
1 S 1973
OPTICS OF ENFORCEMENT
MEMORANDUM
TO: Regional Enforcement Division Directors
Director, NEIC
NPDES State Directors
FROM: Deputy Assistant Administrator for Water Enforcement (EN-3.35)
SUBJECT: Office of General Counsel (OGC) Memorandum
Attached is a copy of a legal opinion prepared by OGC in response
to questions concerning the inclusion of compliance schedules in Second
Round and new permits. The Permits Division is including this document
in its Policy Book as 78-21-IV. If you have any questions or comments
about this opinion please contact Scott Slesimjej- (EN-336), 202-755-0750.
: Miller
Attachment
cc: Regional Permits Branch Chiefs
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. v*t« «•«>
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
P. "' p rx ^ , ~ T«O
L » u ... ., i o 18
CCNCMAk COUNCEU
MEMORANDUM
TO : Deputy Assistant Administrator for
Water Enforcement (EN-335)
r\
FROM : Associate General Counsel^
Wajer and Solid Waste Division
SUBJECT: Request for a Legal Opinion r— Inclusion of Com-
pliance Schedules in Secodd Round Permits and
Newly Issued Permits — Yov^r/ Memo of November 2,
1978
QUESTION
You have asked a series of questions regarding the require-
ments of best practicable control technology currently available
("BPT") and vater quality standards ("WQS") in permits issued
afte.r July 1, 1977. Your first questions concern reissuance of
a permit to a source which had already been subject to BPT re-
quirements in an expiring permit. If BPT or WQS have become more
stringent since issuance of the first permit and additional con-
struction would be necessary for the source to meet the changed
requirements, you ask whether the permit must require the source
to meet the new BPT or WQS requirements and, if so, whether the
permit may include a schedule for achieving the new requirements.
In addition you ask, in the case of a new permit, whether the
permit may ignore BPT and WQS requirements and place the source
oh a direct schedule to BAT/BCT. In both cases, you ask whether
a schedule of compliance, if allowable, may provide 'a time period
during which no construction is required, to allow the permit
writer and the discharger to determine what construction will be
required by BAT/BCT where those requirements cannot be clearly
determined when the permit is issued.
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ANSWER
If a source, other than a publicly-owned treatment
works, has never received an NPDES permit setting forth
any applicable BPT and WQS based effluent limitations, a
permit issued to such source must require immediate com-
pliance with the applicable requirements of BPT or WQS as
those requirements are in effect at the time the permit is
issued. If a non-POTW source has achieved its first-round
effluent control requirements, a new or reissued permit to
that source should assure that the source will continue to
achieve those effluent reductions. In addition, revised
BPT and WQS must be applied to the source. Since the Act
provides no fixed schedule for compliance with these re-
quirements, EPA should adopt a reasonable scheme for at-
taining compliance expeditiously, consistent with orderly
application of the Act's 1984 requirements.
DISCUSSION
Section 301(b)(l)(A) of the Clean Water Act requires
all source's of pollutants, other than publicly-owned treat-
ment works, to achieve BPT by July 1, 1977, and Section
301(b)(l)(C) re.qui.res all sources to comply with WQS by
that date. Section 301(b)(2) establishes a second set of
more stringent technological requirements to be achieved
by non-POTW's by 1984 (or three years after the date the
requirements are established, up to 1987). Thus, the Act
establishes a two-phase structure for achieving specified
effluent limitations.
The questions raised by your memorandum arise because
(1) some sources did not achieve compliance with the Phase I
requirements by July 1, 1977, and (2) in some instances
the definitions of BPT, or the requirements of WQS, have
been revised, and current levels of treatment, previously
in compliance with BPT or WQS, as defined in an NPDES per-
mit, are not adequate to meet the revised BPT or WQS. The
Act addresses the first situation, but it is silent as to.
the second.
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Congress made it clear, in Section 301(b)(l), that ini-
tial compliance with BPT and WQS was to be achieved by July 1,
1977. In the 1977 amendments to the Act Congress recognized
that some sources had not met those requirements, sometimes
for justifiable reasons. Nonetheless, it refused to waive or
extend the deadline for such sources. See H.R. 3199, 95th Cong.
Is: Sess., Section 13, eliminated in conference; see also,
Cong. Rec. S 13538, Aug. 4, 1977, explaining thar the 1977
amendments do not extend the deadlines of Section 301 but
allow the Administrator certain Section 309 enforcement op-
t ions.
Since Congress expressly determined not to waive Phase I
compliance requirements or allow permits to extend the com-
pliance deadlines of Section 301(b)(l), EPA cannot claim im-
plied authority to do.so. Instead, if a permit must be issued
or reissued to a source which has never achieved compliance
with applicable BPT or WQS requirements, the permit must re-
quire immediate compliance with those requirements as they are
currently in effect when the permit is issued, and if relief
is to be provided, Section 309(a)(5) orders must be employed.
II
A source which had complied with BPT before the deter-
mination of BPT changed is in a different position from the
source which never complied. This source has already achieved
the Act's Phase I requirement as administratively interpreted
'and applied to it and is in a position to proceed with the
second phase. Therefore, it would be inappropriate to impose
an immediate requirement that revised BPT be achieved.
The requirement that BPT be achieved remains in the Act
even after the 1977 deadline has passed. However, the Act
does not set a specific deadline for attaining revised BPT
requirements, and some reasonable scheme should be adopted
to ensure that such requirements be achieved as expeditiously
as practicable, consistent with orderly imposition of Phase II
(BAT and BCT) requirements. Thus, for example, if compliance
with revised BPT is a logical step towards attainment of BAT
or BCT limitations, such compliance could be included as a
reasonable interim.element of the source's permit responsibili-
ties. Certainly any applicable BPT requirements would have to
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be met not later than the date on which compliance with BC7
and BAT is required. However, where a compliance date prior
to that time would require construction or modification in
addition to previously defined BPT, and where that construc-
tion would not constitute a logical step toward BAT, im-
posing the interim BPT requirement might well undermine the
Act's orderly progression from the 1977 to the 1984 require-
ments .
Ill
The issue of compliance dates for ongoing WQS compliance
is less clear. The Act establishes the end date fo.r the first
stage of WQS compliance, but for subsequent levels of possibly
more stringent WQS, the Act defers to State planning determina-
tions. See Section 303(e)(3)(A), Section 303(e)(3)(F), Sec-
tion 208(b)(2)(B) , Section 208(e), and Section 303(e ) (3 ) (B ) .
If a- state has revised its WQS and established a schedule of
compliance at least as stringent as any federal requirement,
th-e NPDES permit would have to impose the state-established
limitation. However, if the State plans do not contain specific
compliance schedules, the EPA permit writer must establish the
source's Phase II WQS compliance schedule.
The Act su'pplies no express guidance as to what the EPA-
decermined, post-1977 WQS compliance schedule should be. In
general, Congress intended compliance with the Act's require-
ments to occur at the earliest practicable time.* One option,
therefore, might be for EPA simply to establish the policy
that post-1977 compliance must be achieved by the earliest
practicable time.
Alternatively, the Section 301(b)(2) pattern is to re-
quire second round municipal compliance in 1983 and second
round industrial compliance in 1984. It is reasonable to
* The Section 301 requirements are all to be met "no later
than" the statutory deadlines. See, e.g., Leg. Hist. 163. In
the 1977 amendments, Congress confirmed its interest- in securing
the earliest possible compliance. See Sectio-ns 309(a)(5) and
309(a)(6), added by-the amendments.
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establish WQS compliance schedules in harmony with the Act's
general regulatory structure. Thus, EPA may infer that the
Section 301(b)(2) dates should be applied to WQS, in the ab-
sence of any more stringent state schedules.
Which of these approaches (or what combination of them)
is to be selected is a policy judgment. Since the Act does
not express compliance schedule requirements for post-1977
WQS compliance, EPA may wish to supply guidance by regula-
tion. This would provide a reasonable, permanent method for
establishing WQS compliance schedules where none are avail-
able from the states.
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II.A.6,
"Policy for the Second Round Issuance of NPDES Industrial Permits", dated
June 2, 1982.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUN 2 1982 OFF.CEOF
WW WATER
MEMORANDUM
SUBJECT: Policy for the Second Round Issuance of NPDES
Industrial Permits
TO: Regional Administrators
FROM: Frederic A. Eidsness, Jr.
Assistant Administratp'r/£b's''/Water (WH-556)
The final "second round" policy for re-issuing NPDES indus-.
trial permits is attached. The policy reflects Regional comments
in response to previous drafts sent to you and discussions with
the Water Management Division Directors. This policy applies
only to EPA-issued permits/ although States may choose to adopt
the principles outlined. I am sending the policy to both the
NPDES and non-NPDES States under separate cover to solicit their
comments and advice on the applicability of the policy to their
programs. In addition to the priorities set here for reissuance
of NPDES industrial permits, the issuance of new source or new
discharge permits remains the highest priority to assure no
undue delay in the construction or modification of such sources.
This policy reflects the Administrator's conviction that,
to the extent possible, permit requirements should be based
either on promulgated national wastewater treatment standards
or requirements necessary to achieve the designated water uses
specified in water quality standards. It also reflects the
principles that permit effluent limitations should be developed
using good scientific information and that, to the extent
practicable, permits of a lasting value should be developed.
Such permits assure protection of the environment while estab-
lishing wastewater treatment requirements that will not be
subject to frequent change.
The policy establishes five priorities for permit issuance
and describes the basis for assigning permit priorities and
developing limitations. Based on this policy, Regions are to
develop and submit by June 30, 1982, a list of priority permits
which the Region expects to issue before the end of FY 1983.
The initial list .is to be submitted to Headquarters and should
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- 2 -
contain key information such as the facility name, owner/operator,
location, receiving water (STORET Reach Number), the issuance
priority category (see attachment to the policy), pollutants of
concern, and the anticipated schedule of issuance. Headquarters
will use this information to report to the Congress and others on
EPA's plans for and status of the permit program —.what our
priorities are and where our resources are going*. Regional
performance against established plans will be assessed as part of
the Office of Water's guidance/evaluation process.
Regions should also work cooperatively with the NPDES States
to develop similar priority permit information on permits to be
issued by the States. This is important to assuring a truly
national effort and can be done as a part of routine cooperative
program planning.processes, such as the development of 106 plans.
In this way we can determine how EPA can most usefully assist the
States in their permitting efforts. Establishing State priority
permit lists will also serve to assist in determining the most
appropriate State-issued permits to be reviewed by the Region.
EPA headquarters will be providing guidance and assistance
to help carry out this policy. 'Questions concerning tr.e policy
should be directed to Bruce Barrett, Director, Office of Water
Enforcement and Permits (FTS/Area Code 202-755-0440).
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
WATER
Policy for the Second Round Issuance of National
Pollutant Discharge Elimination System (flPDES)
Permits for Industrial Sources
STATEMENT OF POLICY
EPA-.issued industrial NPDES permits will* be issued according to
the following priorities. (A detailed explanation of the
policy is contained in the attachment to the "Implementation"
section of this policy.) First priority shall be given to
facilities discharging to waters where use impairment problems
have been identified and where there is adequate information to
develop either a water quality-based permit or/ in the exceptional
case detailed in the attachment, a BAT/BCT permit relying on best
professional judgment. The second priority is to permit facilities
for which applicable BAT effluent limitations guidelines have
been promulgated. The third priority covers facilities suspected
of contributing to the impairment of a designated water use but
where insufficient information exists to confirm the extent of
the use impairment. The fourth priority addresses facilities for
which effluent limitations guidelines are not scheduled for
promulgation, and the existing permit limitations do not reflect
sufficient treatment. The lowest priority is extension or
reissuance of permits to facilities for which effluent limita-
tions guidelines are not scheduled and the existing permit
requires sufficient treatment. In all permitting actions, EPA
will work cooperatively with States and permittees and adhere to
procedures established by applicable statutes and regulations.
This policy also establishes a mechanism for developing priority
permit lists with the first list due by June 30, 1982 (see "Other
Considerations" in the Attachment).
EXPIRATION DATE . ' *
This policy will remain in effect until September 30, 1983.
June 2, 1982
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BACKGROUND
EPA and authorized States issue NPDES permits for periods not
to exceed five years. Permit limits are based either on the
application of available technology or on the protection of
water quality, whichever is more stringent. The clean Water
Act (CWA) establishes two levels of technology standards and
deadlines for industrial compliance: best practicable control
technology currently available (3PT) by July 1, 1977 and best
available technology economically achievable/best conventional
technology (3AT/3CT) by July 1, 1984.
The majority of the "first round" permits, reflecting 3PT or more
stringent water quality-based limitations, were issued between
1974 and 1976. Most of these were based on technology using
"best professional* judgment" (3PJ) because effluent guidelines
were unavailable (relying on section 4Q2(a)(l) of the CWA). In
1978, as. these permits began to expire, EPA instituted a policy
of reissuing short-term (2 to 3 year) permits in order to await
promulgation of 3AT/BCT effluent guidelines. Most of these
'short-term permits have now expired. Thus there are now more
than 35,000 expired permits. For the most part, these expired
permits continue in effect under the federal Administrative
Procedure Act or similar State statutes.
In the past, EPA and many States focused almost exclusively on
the technology-based effluent limitations approach. While. EPA.. :
will continue this technology-based approach using BAT/3CT
effluent limitations guidelines, EPA will also look beyond
technology-based requirements and issue permits based on scien-
tifically determined requirements for assuring environmental
protection. The development of requirements based on protection
of water quality has often been hampered by lack of'data. This
policy makes clear that the burden of data collection is shared
by EPA, the State, and the discharger. Further, the implementa-
tion of this policy should assure the most effective use of
resources by carefully scheduling permit activities, waiting
for national treatment standards where practicable, making
better use of existing data, and initiatir cooperative efforts
with States and permittees.
This approach is supported by initiatives that will strengthen
both technology-based and water quality-based effluent limitations.
It will produce permits of lasting value that are not subject to •
frequent change. EPA is moving ahead to promulgate national ,
e-ffluent limitations guidelines on a schedule which will provide
guidelines for 24 primary industry categories before the end of
FY 1983. Promulgated effluent limitations guidelines, in
conjunction with their development documents, expert assistance,
and-permit writer training, will assure the application of good
science and produce well founded permit limitations. Individual
permit limitations developed in this way will significantly
reduce conflicts and avoid protracted appeals.
a a •>
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A sound technical and legal basis for permit limits is also
provided by State water quality standards. All States have
standards for each designated water use which include both
numeric criteria for specific pollutants and general conditions.
Expanding the scope of these standards and improving their
scientific basis is a continuing process which is now being given
additional attention by EPA, the States, and throughout the
scientific community. EPA is encouraging states to review and
revise their standards to reflect site-specific factors. The
technological basis for implementing these standards using Total
Maximum Daily Load/Wasteload Allocations is being significantly
advanced. These factors and site-specific, biological and chemical
analysis will provide the needed scientific basis .for water
quality-based effluent limitations in permits.
APPLICATION ' '
This policy applies only to EPA-issued industrial NPDES' permits
although States may choose to adopt the principles outlined.
IMPLEMENTATION
/
This policy is implemented by establishing permit issuance
priorities and developing priority permit lists and schedules.
This approach is designed to assure the best use of available
resources and. produce results where they are most needed. The
details of this approach are explained in the attachment.
Date Frederir
Assistant\Administrator
for Water
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Sec< .:! Round Industrial
(EPA-Issued Per
'iCEing Policy
Attachment
Permitting Priorities
Discussion/Implementation
First Priority
Issue permits to
facilities where water
uae Impairment problems
have been Identified
Second Priority
Issue permits baaed on
promulgated DAT guidelines-
where BAT guidelines
are scheduled
o States, with EPA assistance, Identify water bodies where It is known that the water use
Is impaired or other major water quality problems exist. This may be based on factors
such as drinking water supply contamination, exceedences of applicable water quality
standards, and bloaccumulatlon of tonic pollutants. In coordination with the State, the
available scientific information should be reviewed to Identify significant contributors
and determine whether there is adequate scientific Information to develop water quality-
based limits for those dischargers* •
o For those dischargers Identified as contributing to a use impairment or other major water
quality problem, and for which there are sufficient information and data, permit limits
should be developed based on section 303(d) total maximum dally load/wasteload alloc-
tions (TMOL/ULA's) and relevant portlorts of section 208 plans. Where sufficient data
exist, EPA may develop water quality-based limits in the absence of 303(d) TMUL/VILA'a,
using scientifically acceptable methods, Including the use of bloassays. However, such
effluent limits are subject to public, administrative, and Judicial review as part of
the permit process and any other permittees contributing to the water quality problem
will have an opportunity to participate after notice of proposed effluent limits* All
water quality-based permits with expiration dates beyond July 1, 1984, also must meet
the statutory definition of HAT and BCT. ;
o In those exceptional cases where major water quality problems are identified but there
is insufficient Information to develop limitations baaed on water quality, and effluent
guidelines will not be available In the near term, the permit should be based on good
scientific Information with the limits reflecting BAT/BCT* In making determinations of
BAT/BCT, the permit writer will rely on beat professional Judgment. Such permits will
be issued with five year terms. More stringent limits required by nat'lonal technology-
based guidelines issued during the term of the permit will be Included In subsequent
permits. In addition, the organic chemicals and plastics/synthetics Industry categories
will likely present a number of cases which, because of the Identified use Impairment or
other major water quality problems, Justify the use of this approach. EPA headquarters
will provide assistance to permit writers through teams of Industry experts for these
industrial categories.
o Where BAT effluent guidelines hove been promulgated, permits will be issued reflecting
. guidelines and any other necessary BAT/BCT or water-quality baaed limits. If BAT guide-
lines ore scheduled but have not been promulgated and no major water quality problems are
Involved, the first round BPT permit should be extended under the Administrative Procedure
Act (APA) while waiting for BAT guidelines.
I
?. 19R2
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PermittinR 1'rioritlea
Second Round Industrial Permitting Pulley
~ Issued Permlla Only)
Discussion/Implementat ion
Attachment
Page 2
Third Priority
Issue pecmltu to .
facilities where
water use Impairment
problems are suspected
Fourth Priority
Issue permits where
upgrading la needed and
DAT guidelines are not
scheduled
Fifth Priority
Issue permits for all
.others as the last
priority *
o For those dischargers suspected of contributing to major water use impairment or other
major water quality problems, but where insufficient confirming data exist, a specific
short-term program of data collection should be Initiated* The data collection program
should Include requirements for blomonltorlng, chemical analysis, or field surveys
necessary to obtain Information to determine the magnitude and extent of the water use
Impairment* In setting up the data collection program, particular attention should be
paid to potential contamination of public drinking water supplies* EPA Headquarters
will provide further guidance on both the procedural mechanisms for Implementing this
data collection program as well as substantive guidance on the type ot blomonltorlng
or chemical analysis requirements that could be used to collect data.
o If sufficient information la obtained that shows the dischargee Is contributing to water
use impairment problems, a new five year permit or modification of existing permit limits
should be developed as appropriate.
t
o Where no further BAT guidelines development Is planned and the first round permit does
not reflect sufficient treatment to comply with BAT/BCT, subsequently promulgated BPT
guidelines or water quality standards, upgrade the permits limits and/or other necessary
conditions and Issue a five-year permit* Limits on conventional pollutants reflecting
BCT may be developed using the UCT methodology when It becomes available, and limits on
priority pollutants reflecting BAT should be developed using BPJ. Normally, significant
discharges of priority pollutants are not expected where BAT guidelines are not
scheduled for development*
o Where no further guidelines development Is .planned but the first round permit requires
sufficient treatment (I.e., would meet what are likely to be considered UAT/BCf limits and
no water quality problems are suspected), the existing permit may be extended under APA
provisions or reissued only as the last priority.
June 2
«J»2
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Second Round Permitting I'ollcy
(BPA-laauod Permits Only)
Attachment
Page 3
Other Considerations
. Priority Permits
General Permits
i. Compliance Deadline
EPA Regional Offices will Identify facilities which are probable contributors to water
use impairment or other major water quality problems. The 305(b) reports and 303(d)
priority segments will be considered In identifying these priority facilities.
Using this and other Information, the Reglonsl Offices will develop a listing of permits
which are expected to .be issued before October I, 1983 consistent with the priorities
established by this policy. The listing will Include permit issuance schedules which
will provide a reasonable estimate of expected issuance* The initial list of priority
permits and schedules are to be transmitted to Headquarters by June 30, 1982. This list
should be updated periodically to reflect current plans and priorities. Encouraging
States to establish similar priority lists is also essential to the national program.
In addition to the points described above, we are encouraging the use of general permits
to cover many facilities with the same or substantially similar types of operations and
the same types of wastestream discharges. This should help significantly in reducing
the bscklog of expired NPUES permits. The Office of Water will analyze the opportunities
for general permits for industry categories, Including some primary Industry categories,
where the facilities' operations and discharges ore very similar. Multi-State coverage
will also be considered. We will keep you Informed of progress in this area. In the
meantime, permitting authorities should consider issuing general permits in their own
jurisdictions where appropriate.
All permits extending past July 1, 1984 must contain final limitations that are deemed
equivalent to DAT/BCT regardless of whether the limits are based on wa'ter quality,
effluent guidelines, or BPJ.
June 2, 1982
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II.A.7,
"Policy for the Development of Water Quality-Based Permit Limitations for
Toxic Pollutants", dated February 3, 1984. (See also 49 FR 9016, March 9,
1984.)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OFFICE OF
WATER
Policy for the Development of Water Quality-Based
Permit Limitations for Toxic Pollutants
STATEMENT OF POLICY
To control pollutants beyond Best Available Technology
Economically Achievable (BAT), secondary treatment, and other
Clean Water Act technology-based requirements in order to
meet water quality standards, the Environmental Protection
Agency (EPA) will use an integrated strategy consisting of
both biological and chemical methods to address toxic and
nonconventional pollutants from industrial and municipal
sources. Where State standards contain numerical criteria for
toxic pollutants. National Pollutant Discharge Elimination
System (NPDES) permits will contain limits as necessary to
assure compliance with these standards. In addition to en-
forcing specific numerical criteria, EPA and the States will
use biological techniques and available data on chemical
effects to assess toxicity impacts and human health hazards
based on the general standard of "no toxic materials in toxic
amounts."
EPA, in its oversight role, will work with States to
ensure that these techniques are used wherever appropriate.
Under section 308 and section 402 of the Clean Water Act (the
Act), EPA or the State may require NPDES permit applicants to
provide chemical, toxicity, and instream biological data neces-*
sary to assure compliance with standards. Data requirements
may be determined on a case-by-case basis in consultation
with the State and the discharger.
Where violations of water quality standards are identified
or projected, the State will be expected to develop water
quality-based effluent limits for inclusion in any issued
permit. Where necessary, EPA will develop these limits in
consultation with the State. Where there is a significant
likelihood of toxic effects to biota in the receiving water,
EPA and the States may impose permit limits on effluent tox-
icity and may require an NPDES permittee to conduct a toxicity
reduction evaluation. Where toxic effects are present but
there is a significant likelihood that compliance with tech-
nology-based requirements will sufficiently mitigate the effects,
. -7.
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EPA and the States may require chemical and toxicity testing
after installation of treatment and may reopen the permit to
incorporate additional limitations if needed to meet water
quality standards. (Toxicity data, which are considered "new
information" in accordance with 40 CFR 122.62(a)(2), could
constitute cause for permit modification where necessary.)
To carry out this policy, EPA Regional Administrators will
assure that each Region has the capability to conduct water
quality assessments using both biological and chemical methods
and provide technical assistance to the States.
BACKGROUND
The Clean Water Act establishes two principal bases for
effluent limitations. First, existing dischargers are required
to meet technology-based effluent limitations that reflect the
best controls available considering economic impacts. New source
dischargers must meet the best demonstrated technology-based
controls. Second, where necessary, additional requirements are
imposed to assure attainment and maintenance of water quality
standards established by the States and approved by EPA. In
establishing or reviewing NPDES permit limits, EPA must ensure
that the limits will result in the attainment of water quality
standards and protect designated water uses, including an adequate
margin of safety.
For toxic and nonconventional pollutants it may be difficult
in some situations to determine attainment or nonattainment
of water quality standards and set appropriate limits because of
complex chemical interactions which affect the fate and ultimate
impact of toxic substances in the receiving water. In many
cases, all potentially toxic pollutants cannot be identified
by chemical methods. In such situations, it is more feasible to
examine the whole effluent toxicity and instream impacts using
biological methods rather than attempt to identify all toxic
pollutants, determine the effects of each pollutant individually,
and then attempt to assess their collective effect.
The scientific basis for using biological techniques has
advanced significantly in recent years. There is now a general
consensus that an evaluation of effluent toxicity, when
adequately related to instream conditions, can provide a valid
indication of receiving system impacts. This information can
be useful in developing regulatory requirements to protect
aquatic life, especially when data from toxicity testing are
analyzed in conjunction with chemical and ecological data.
Generic human health effects methods, such as the Ames mutegen-
icity test, and structure-activity relationship techniques are
showing promise and should be used to identify potential hazards.
However, pollutant-specific techniques are the best way to
evaluate and control human health hazards at this time.
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Biological testing of effluents is an important aspect of
the water quality-based approach for controlling toxic pol-
lutants. Effluent toxicity data in conjunction with other data
can be used to establish control priorities, assess compliance
with State water quality standards, and set permit limitations
to achieve those standards. *• All States have water quality
standards which include narrative statements prohibiting the
discharge of toxic materials in toxic amounts. A few State stan-
dards have criteria more specific than narrative criteria (for
example, numerical criteria for specific toxic pollutants or a
toxicity criterion to achieve designated uses). In States where
numerical criteria are not specified, a judgment by the regula-
tory authority is required to set quantitative water quality-
based limits on chemicals and effluent toxicity to assure compli-
ance with water quality standards.
APPLICATION
This policy applies to EPA and the States. The policy
addresses the use of chemical and biological methods for assuring
that effluent discharges are regulated in accordance with Federal
and State requirements. This policy was prepared, in part, in
response to concerns raised by litigants to the Consolidated
Permit Regulations (see 47 Federal Register 52079, November 18,
1982). Use of these methods for developing water quality.
standards and trend monitoring are discussed elsewhere (see
48 Federal Register 51400, November 8, 1983 and Basic Water
Monitoring Program EPA-440/9-76-025) . This policy is part of
EPA's water quality-based control program and does not supercede
other regulations, policy, and guidance regarding use attain-
ability, site-specific criteria modification, wasteload allocation,
and water quality management.
IMPLEMENTATION
State role-
The control of toxic substances to protect water quality
must be done in the context of the Federal-State partnership.
EPA will work cooperatively with the States in identifying
potential water quality standards violations, assembling relevant
1 Section 308 of.the Act and corresponding State statutes
authorize EPA and the States to require of the owner/operator
any information reasonably required to determine permit limits
and to determine compliance with standards or permit limits.
Biological methods are specifically mentioned. Toxicity permit
limits are authorized under Section 301 and 402 and supported by
Section 101.
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data, developing appropriate testing requirements, determining
whether standards are being violated, and defining appropriate
permit limits.2
Integration of approaches-
The type of testing that is most appropriate for assessing
water quality impacts depends on the type of effluent and dis-
charge situation. EPA recommends that an integrated approach,
including both biological and chemical techniques, be used to
assess and control water quality. The principal advantages of
chemical-specific techniques are that (L) chemical analyses
are usually less expensive than biological measurements in
simple cases; (2) treatment systems are more easily designed to
meet chemical requirements than toxicity requirements; and (3)
human health hazards and bioaccumulative pollutants can best be
addressed at this time by chemical-specific analysis. The prin-
cipal advantages of biological techniques are that (I) the
effects of complex discharges of many known and unknown con-
stituents can be measured only by biological analyses; (2) bio-
availability of pollutants after discharge is best measured
by toxicity testing; and (3) pollutants for which there are
inadequate chemical analytical methods or criteria can be
addressed.
Pollutant-specific chemical analysis techniques should be
used where discharges contain a few, well-quantified pollutants
and the interactions and effects of the pollutants are known.
In addition, pollutant-specific techniques should be used where
health hazards are a concern or bioaccumulation is suspected.
Biological techniques should be used where effluents are complex
or where the combined effects of multiple discharges are of
concern. EPA recognizes that in many cases both types of
analysis must be used.
Testing requirements-
Requirements for dischargers to collect information to
assess attainment or nonattairunent of State water quality stan-
dards will be imposed only in selected cases where the potential
for nonattainment of water quality standards exists. Where
water quality problems are suspected but there is a strong in-
dication that complying with BCT/BAT will sufficiently mitigate
the impacts, EPA recommends that applicable permits include
testing requirements effective after BCT/BAT compliance and
reopener clauses allowing reevaluation of the discharge.
2 Under section 303 and 401 of the Act, States are given primary
responsibility for developing water quality standards and limits
to meet those standards. EPA's role is to review the State
standards and limits and develop revised or additional standards
or limits as needed to meet the requirements of the Act.
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The chemical, physical, and biological testing to be con-
ducted by individual dischargers should be determined on a case-
by-case basis. In making this determination, many factors must
be considered, including the degree of impact, the complexity
and variability of the discharge, the water body type and hydro-
logy, the potential for human health impact, the amount of existing
data, the level of certainty desired in the water quality assessment,
other sources of pollutants, and the ecology of the receiving
water. The specific data needed to measure the effect that a
discharger has on the receiving water will vary according to
these and other factors.
An assessment of water quality should, to the extent prac-
ticable, include other point and nonpoint sources of pollutants
if the sources may be contributing to the impacts. Special
attention should be focused on Publicly Owned Treatment Works
(POTW's) with a significant contribution of industrial wastewater.
Recent studies have indicated that such POTW's are often signi-
ficant sources of toxic materials. When developing monitoring
requirements, interpreting data, and determining limitations,
permit engineers should work closely with water quality staff at
both the State and Federal levels.
A discharger may be required to provide data upon request
under section 308 of the Act, or such a requirement may be
included in its NPDES permit. The development of a final assess-
ment may require several iterations of data collection. Where
potential problems are identified, EPA or the State may require
monitoring to determine whether more information is needed con-
cerning water quality effects.
Use of data-
Chemical, physical, and biological data will be used to
determine whether, after compliance with BCT/BAT requirements,
there will be violations of State water quality standards result-
ing from the discharge(s). The narrative prohibition of toxic
materials in toxic amounts contained in all State standards is
the basis for this determination taking into account the desig-
nated use for the receiving water. For example, discharges to
waters classified for propagation of cold water fish should be
evaluated in relation to acute and chronic effects on cold water
organisms, potential spawning areas, and effluent dispersion.
Setting permit limitations-
Where violations of water quality standards exist or are
projected, the State and EPA will determine pollution control
requirements that will attain the receiving water designated
use. Where effluent toxicity is an appropriate control para-
meter, permit limits on effluent toxicity should be developed.
Jn such cases, EPA may also require a permittee to conduct a
toxicity reduction evaluation. A toxicity reduction evaluation
is an investigation conducted within a plant or municipal system
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to isolate the sources of effluent toxicity/ determine specific
causative pollutants if possible, and determine the effec-
tiveness of pollution control options in reducing the effluent
toxicity. If specific chemicals are identified as the cause of
the water quality standards violation, these individual pol-
lutants should be limited. If a toxicity reduction evaluation
demonstrates that limiting an indicator parameter will ensure
attainment of the water quality-based effluent toxicity require-
ment, limits on the indicator parameter should be considered in
lieu of limits on effluent toxicity. Such indicator limits are
not limits on causative pollutants but limits demonstrated to
result in a specific toxicity reduction.
Monitoring-
Where pollution control requirements are expressed in terms
of a chemical or toxicological parameter, compliance monitoring
must include monitoring for that parameter. If an indicator
parameter is used based on the results of a toxicity reduction
evaluation, periodic toxicity testing may be required to confirm
the adequacy of the indicator. Where biological data were used
to develop a water quality assessment or where the potential
for water quality standards violations exist, biological
monitoring (including instream monitoring) may be required to
ensure continuing compliance with water quality standards.
EPA believes that the intelligent application of an
integrated strategy using both biological and chemical techniques
for water quality assessment will facilitate the development of
appropriate controls and the attainment of water quality
standards. EPA looks forward to working with the States in a
spirit of cooperation to further refine these techniques.
February 3, 1984
Date
Jack E. Ravan
Assistant Administrator
for Water
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II.A.8,
"Continuance of NPDES General Permits under the APA", dated January 16,
1984.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
*See Nunan Kitlutsisti v. Arco Alaska, Inc
(D.C. Alaska, 1984), 592 F.S. 832, for a
discussion of this issue. The court held tha-
an expired general permit isonpice OF not continued
under the APA; on appeal the WATE«
was vacated, however.
JAN
MEMORANDUM . ' •
•SUBJECT: Continuance of NPDES General Permits Under the APA
i
r
•
FROM: •/ Bruce- R. Barrett, Director
Office of Water Enforcement and Permits (EN-335)
TO: Regional Water Management Division Directors
Regional Counsels
We have received a number of- inquiries as to whether
continuation of expired general permits is allowed under the
Administrative Procedure Act (APA) and the NPDSS regulations.".
recent Office of General Counsel (OGC) opinion (attached)
ndicates that such continuance is legally permissible. However,
here are important reasons for EPA not to rely on APA continu-
ance except in extreme cases where permit reissuance is delayed
for unexpected or unavoidable reasons. This memorandum addresses
the general permit reissuance process in light of OGC's recent
review of the continuance issue.
SUMMARY ' . '
NPDES general permits may be continued under the APA
where the Agency has failed to. reissue the permit prior to
expiration. Although continuance is legally permissible,.
permits should be continued only as a last resort and continuance
should be avoided by timely reissuance of general permits
wherever possible.
Because of the geographic scope of general permits and the
number of facilities covered, continuance could raise questions ,
as to whether EPA has adequately considered long-term cumulative
environmental impacts, exacerbate the permit issuance backlog,
and create new issues or workload problems associated with new
facility permits since new facilities cannot be covered by a
sr.tinued permit. Continuance is generally avoidable given
". _ ^equate planning. Where continuance is unavoidable, it should
^ for the shortest possible time. Upon determining that a
general permit will not be reissued prior to expiration, the
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Regional Water Management Division Director should inform the
Permits Division Director and provide a specific schedule for
completing reissuance.
IMPLEMENTATION
The following requirements govern the continuance of
general permits:
o. Only those facilities authorized to discharge under •
the expiring general permit are covered by the
continued oermit. •
* i •» •
o -Where the notification requirements of a general
permit provide permit coverage prior to the actual
commencement of operations at a site (e.g., mobile
seafood processors and oil and gas drilling vessels}
facilities providing such'notice prior to expiration
» are covered by the continued permit.
o At least six months prior to the expiration date of a
general permit, the Regional Water Management Division '
Director should submit a draft general permit and a
schedule for permit issuance or reissuance to the
Permits Division Director. If a draft general permit
' is not ready at that time/ an explanation of the reasons
for delay and a schedule for permit development and
reissuance, should be submitted instead. The Permits
Division Director will expedite permit issuance and
reissuance processes at headquarters as much as possible
and will inform upper management in the Office of
Water of any significant delays.
DISCUSSION
As with individual NPDES permits, it may become necessary
to administratively continue a general NPDES permit when re-
issuance of the permit or issuance of a new permit is impossible
before permit-expiration. • The APA allows for continuance of a
Federal license or permit when a permittee has made a timely
and complete application for a new permit. Until OGC's recent
review of the issue, OWE? had advised the Regional Offices
that general permits could not be continued under the APA
because the NPDES regulations do not require applications for
general permits. OWE? requested that OGC review and provide a
written opinion on this issue since a number of parties had
questioned our legal position. On November 17, 1983, OG'C
'OWE?-'that general permits can legally be continued under the
APA.
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There are a number of strong policy and program reasons to
P&ure timely reissuance rather than relying on APA continuance.
:-»ny general permits cover several dozens or even hundreds of
individual facilities. The large number of facilities covered
»nd the broad geographic coverage tend to focus industry and
public attention on Agency inaction when the permit is allowed
to expire, especially in the early stages of implementation of
che general permit program.
Many general permits are controversial at the time of
initial permit issuance. Similar controversies can be antici-.
pated during reissuance. EPA cannqt allow the public to • '
perceive that we are avoiding these issues through administrative
continuance of expired permits. For example, cumulative en-
vironmental impact assessments hinge on the number and volume
of discharges. information gathered during the term of. the
original permit may justify new permit.limitations, terms and
conditions at the time of reissuance. For marine dischargers,
determinations pursuant to §403 (cj of the Clean Water Act are
usually dependent on the estimates of the number of facilities
that will discharge during the term of the permit. Delay in
updating these determinations raises questions about potential
environmental impacts and the efficacy of permit conditions. .
'.milar issues arise where there have been new standards or
fcpfluent limitation guidelines promulgated during .the course
W' the permit or changes in the CWA. or applicable requirements
Yider other applicable statutes (e.g., Coastal Zone Management
Act, Endangered Species Act).
Finally, a major goal of the general permit program is to
reduce the Agency's NPDES permit issuance backlog. Allowing
.general permits to expire aggravates the backlog problems. In
addition", new dischargers would not be covered until SPA. re-
i.ssued the general permit. Since these facilities would be .
liable for .discharge without a permit, they would likely request
an individual permit and be required to submit a full application
and do appropriate testing. This creates a permit issuance
workload demand that would be avoided by timely reissuance of
the general permit, as well as putting burdens on permit appli-
cants that would be .removed by reissuance of the general, permit.
Given the drawbacks and problems, administrative continuance
of general permits should be the exception rather than the rule.
Adequate planning and timely permit preparation will allow us
to avoid the necessity to use administrative continuance except
5.5 a stop gap, short term measure. The Office of Water Snforce-
-snt and*Permits will work with the Regions to avoid continuance
^••'-erever possible.
.^: Coiburr. T. Cherney, OGC
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II.A.9
Summaries of NPDES Permit Decisions by the Administrator and Judicial
Officer (Issued irregularly. For copies of summaries, contact the Permits
Division, OWEP, EN-336).
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II.A.10,
"Training Manual for NPDES Permit Writers" dated May, 1987. Table of
Contents only. Available from Permits Division, OWEP, (EN-336).
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JrrtBd.5ta:»s
Environmental *'ot8
Ag»ncy
rts and Permits
Washington DC 20*60
MAY 19S"
Training Manual
for NPDES
Permit Writers
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to
. •? i " '•*"•* t er -. : ~.
• - a - - -a'— ••
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BASIC COURSE FOR PERMIT WRITERS
I. INTRODUCTION
A. Overall purpose of the course/manual ,...1
B. Overview of the NPDES program. 1
C. Evolution of the NPDES program 2
D. Types of NPDES program authority 4
.II. THE APPLICATION FORM AND ADDITIONAL INFORMATION
A. The Appl i ca t i on Form 7
1. Who is required to obtain a permit .7
2. Explanation of the application forms 7
3. When an application must be filed 8
B. Reviewing the Application 8
1. Completeness. . 9
2. Accuracy 11
C. Additional Information .....13
1. Background information review.... 13
2. Facility inspection 14
III. DEVELOPING THE DRAFT PERMIT
A. General Considerations 15
1. Contents of a permit 15
2. Importance of documentation 15
B. Effluent Limitations 16
1. Ove rv i ew 16
2. Statistical Significance. 17
3. Effluent Limitation Guidelines 18
a. Technology-based requirements of CWA 1.8
b. General Considerations 20
c. Categorization/Subcategori zation 22
d. Production -. 23
e. Alternate Limits . 24
f. Multiple Products or Categories 25
g. Mass vs. Concentration 26
4. Water quality considerations 28
a. Water quality criteria and standards .28
b. Determination of WQ-Based Limits 31
c. WQ-Based Limits for Toxics ; 40
5. Best Professional Judgement 44
a. Definition and^statutory authority... 44
b . Background . . 44
c. Establishing BPJ conditions. ..45
d. BPJ Permitting tools. ...47
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C. Municipal Permitting Issues 48
1. Overview 48
2. Secondary Treatment Definition 49
3. Construction Grants 54
4. National Municipal Policy 55
5. Pre treatment 57
0. Moni tori ng . . 61
1. Overvi ew ..61
2. Monitoring Points 61
3. Monitoring Frequency 62
4. Types of Saroli-ic 63
5. Analytical Methods 64
E. Standard Conditions 66
1. Overvi ew 66
2. Types of Standard Conditions 66
F. Special Conditions 68
1. Overview 68
2. .Compl i a nee Schedules 68
3 . B i omon i tor i nq 68
4. Best Management Prazi'.ses .• 69-
IV. VARIANCES
A. Definition and overview. 74
B. Various types 74
1. Economic - 301(c) 74
2. Water quality - 301(g) 75
3. Innovative Technology - 30i(k) 76
4. Fundamentally Different Factors - PDF ....77
Vi FACT SHEET
A. Definition and purpose 78
1. Legal requirement 78
2. Practical need... 78
B. Components. 78
C. When needed 79
D. Permit rationales 79
VI. PUBLIC NOTICE
A. Overview 81
B. Type Of actions 81
C. When required.... 81
D. How given 31
E. Contents 82
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VII. PUBLIC COMMENTS
A. Overview .83
B. Responsibility to respond 83
C. Reopening of public comment period 83
VIII. PUBLIC HEARING
A. When held. . 84
B. Public Notice 84
C. Contents 84
IX. FINAL PERMIT 85
X. ADMINISTRATIVE RECORD
A. Importance 86
B. Components of the record .86
XI. LEGAL CHALLENGES TO A FINAL PERMIT
A. Overview 88
B. Role of the permit writer 86
XII. PERMIT MODIFICATION, REVOCATION, AND TRANSFER
A. Permit Modification 90
a. Major 90
b. Mi nor 90
B. Revocat ion 92
C. Transfer 92
XIII. PERMIT COMPLIANCE AND ENFORCEMENT
A. Responsibilities of the Permittee ..93
B. Responsibilities of the Regulatory Agency 95
C. Enforcement 98
APPENDICES 99
APPENDIX A - GLOSSARY
APPENDIX B - SUMMARY OF PART 122 REGULATIONS
APPENDIX C - KAWABATA NPDES REGULATORY MATRIX
APPENDIX D - LISTING OF TOXIC AND CONVENTIONAL
POLLUTANTS
APPENDIX E - PRIMARY INDUSTRIAL CATEGORIES
- PROPOSED AND FINAL RULES
APPENDIX F .- NPDES LITIGATION
- FINAL RULEMAKING (9-26-84)
APPENDIX G - OVERVIEW OF WATER QUALITY BASED
TOXIC PERMITTING
APPENDIX H - MODEL NPDES PERMIT
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II. NPDES PROGRAM: PRE-ENFORCEMENT
B. INSPECTIONS
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II.B.I.
"Visitor's Releases and Hold Harmless Agreements as a Condition to Entry to
EPA Employees on Industrial Facilities",dated November 8, 1972. See GM-1.
-------
-------
II.B.2,
"Conduct of Inspections after the Barlow Decision dated April 11, 1979.
See GM-5.
-------
-------
II.B.3,
"NPDES Compliance Sampling Inspection Manual", dated October 1979. Table
of Contents only.
-------
-------
OC
10/79
.
-
J a
n s 'D 3 c o n
a n
a 1
1
-------
-------
NPDES COMPLIANCE SAMPLING MANUAL
TABLE OF CONTENTS
Paae No,
DISCLAIMER ii
ACKNOWLEDGEMENT iii
TABLE OF CONTENTS iv
LIST OF ILLUSTRATIONS xi
LIST OF TABLES xiii
I. SUMMARY AND CONCLUSIONS 1
A. Wastewater Sampling Objectives 1
B. Obtaining /Representative Data 1
C. Accomplishment of Compliance
Sampling Objectives 2
D. Error Minimization 3
II. INTRODUCTION
A. Background 6
B. Enforcement Management System 7
C. Work Group Membership B
III. NPDES PERMIT SAMPLING REOUIREMENTS
A. Introduction 11
B. Self-Monitoring Data ' 11
1. Permit Specifications 11
iv
-------
:. Use of Self-Monitoring Data 12
;crr.?iiance Monitoring 13
General 13
Definitions . 13
Objective of Compliance Evaluation
Inspections 13
Compliance Evaluation Inspection
Tasks 14
Objectives of Compliance Sampling
Inspection 15
Compliance Sampling Inspection
Tasks 15
.:
-------
1. General 21
2. Sample Location 23
(a) General 23
(b) Influent 24
(c) Effluent 24
(d) Pond & Lagoon Sampling 24
3. Sample Volume 25
4. Selection and Preparation of Sample
Container 25
C. Sampling Techniques . 25
1. Grab Samples 25
2. Composite Samples 26
(a) Selection of Sample Type 27
(b) Compositing Method 27
B. Sample Preservation 29
1. General 29
2. Compliance Considerations 30
S. Analytical Methods 32
1. General 32
2. Alternative Test Procedure 32
F. Sample Identification 33
G. Safety Considerations 34
VI
-------
. ::v_vric SAMPLERS 37
Introduction 37
\utomatic Sampler Subsystem Components 33
Sample Intake Subsystem 38
Sample Gathering Subsystem 39
(a) Mechanical 39
(b) Forced Flow 40
(c) Suction .Lift 40
;. Sample Transport Subsystem 41
Sample Storage Subsystem . 42
:. Controls and Power Subsystem 42
~*. Sampler Reliability 42.
'.V3 tail at ion and Operation of Automatic
J-ampling Equipment 43
Site Selection 43
"-. Equipment Security 44
3. Power Source 44
4. Waste Characteristics 45
3. Sample Preservation During Compositing
Period 45
S-. Winter Operations 45
Desirable Automatic Sampler Characteristics 46
•-STEWATER FLOW MEASUREMENT • 50
-------
A. Introduction 50
B. Wastewater Flow Measurement Systems ' 51
C. Field Verification of Flow Measurement
Systems ' 55
D. Wastewater Flow Measurement Methods 58
1. Volumetric Techniques 58
(a) Vessel Volume 58
(b) Pump Sumps 61
(c) Bucket and Stopwatch 62
(d) Orifice Bucket • 63
2. Dilution Methods 63
3. Open Channel Flow Measurements 67
(a) Velocity-Area Method 69
i Introduction 69
ii Current'Meters 70
iii Field Practice 74
iv Area and Flow Calculations 76
(b) Weirs • 77
i Broad Crested 79
ii Sharp Crested 81•
(c) Flumes 89
i Parshall Flumes 89
ii Palmer Bowlus Flumes ' 94
iii Other Flumes 96
viii
-------
(d) Open Channel Flow Nozzles 96
(e) Slope-Area Method 97
(f) Measurement by Floats 99
Closed Conduit Flow Measurements 100
(a) Venturi Meter 101
(b) Orifice Meters 102
(c) Flow Nozzles 104
(d) Electromagnetic Flowmeter 106
(e) Acoustic Flowmeter 106
(f) Trajectory Methods • 108
(q) Pump Curves 111
(h) Use of Water Meters 111
•5SURANCE 114
'.r^c-se ' 114
-icy and Objectives . 114
laments of a Quality Assurance Plan 106
duality Assurance in Sample Collection 116
Duplicate Samples • 116
-• Split Samples 117
^. Spiked Samples 117
Sample Preservative Blanks 117
2• Precision, Accuracy and Control
Charts • 118
-uality Assurance Procedures for Field
Analysis and Equipment ' 118
ix
-------
1. Calibration and Documentation Plan
'«
F. Parameter Requiring Special Precautions 124
1. Organics 124
2. Acidity - Alkalinity 125-
3. Miscellaneous Parameters 125
(a) Dissolved Parameters 126
(b) Mercury, Total 126
(c) Phenolics and Cyanides 126
(d) Sulfide and Sulfite 126
VIII'. CHAIN OF CUSTODY PROCEDURES 128
A. Introduction '128
B. Survey Planning and Preparation 128
C. Sample Collection, Handling & Identification 129
D. Transfer of Custody and Shipment 132
E. Laboratory Custody Procedures 135
F. Evidentiary Considerations 137
APPENDIX
-------
LIST OF TABLES
Page
.-positing Methods 28
.-.uai Compositing Method 30
indard Conditions For Sharp-Crested Weirs..36
•«.rp Crested Rectangular Weirs - Velocity
. .pproach Correction 90
:. ity Assurance Procedures For Field
aiysis And Equipment. ..... .119
Xlll
-------
II.B.4.
"Interim NPDES Biomonitoring Inspection Manual", dated October 1979. Table
of Contents only.
-------
-------
v>EPA
'Ji-i-.:i.: Static
E:'vno!irru;nt3i Protection
Ayencv
Of'ie1.' ol •A/'Mer sni
£nft)rcurTi**ni Division
Wastiington. DC 20460
Oc:oo«r 1979
Water
Interim NPDES
Compliance Biomonitoring
Inspection Manual
MCD - 62
-------
NPDES COMPLIANCE
BIOMONITORING INSPECTION MANUAL
TABLE OF CONTENTS
Page No,
Disclaimer ii
Acknowledgement iii
Foreword iv
Table of Contents vi
List of Appendices ix
I. Introduction 1-1
A. Background 1-1
B. Purpose of Manual * . 1-4
C. Statutory Authority 1-5
D. Biomonitoring Requirements in Permits ..1-7
E. ' Federal and State Cooperation 1-7
II. Legal Considerations II-l
A. Access and Warrants - Constitutional
and Statutory Requirements •. II-l
B. Discussions with Permittees or Their
Agents - Privilege Against Self-
Incrimination II-2
C. Expert and Other Testimony ..... II-3
D. Chain of Custody and Preservation of
Documents . II-4
E. Relations with the Public IL-7
III. Planning Biomonitoring Inspections . . . ... . . . Ill'
vi
-------
Page No.
A. Pre-inspection Planning Activities III-l
B. Coordination of Inspection Activities with
Permittees, other EPA Programs, and
Government Agencies III-5
Inspection Types IV-1
A. Announced and Unannounced Inspections IV-1
B. Sampling-Type Inspections .... IV-1
C. Evaluation Inspections .'...." IV-3
Quality Assurance V-l
A. Effluent Sampling and Handling V-l
B. Test Organisms . v-2
C. Facilities and Equipment V-3
D. Dilution Water V-4
E. Test Conditions V-4
F. Reference Toxicants V-4
G. Record Keeping V-6
Health and Safety . VI-1
A. General VI-1
B. Personal Conduct .Vl-2
C. Safety Equipment VI-2
D. General Laboratory Operation VI-2
E. Transportation . . VI-3
F. Emergency Health and Fire Protection VI-3
G. Accident Reports . . . . .VI-3
Conducting Biomonitoring Inspections VII-1
A. Facilities Access VII-1
B. Conducting Sampling Type-Inspections VII-2
C. Conducting Evaluation Inspections ....... .VII-5
vii
-------
VIII. Post Inspection Activities VIII-1
A. Data Evaluation VIII-1
B. Toxicity Laboratory Evaluation Form VIII-5
C. Distribution of Inspection Report VIII-5
D. Follow-up Activities VIII-5
Vlll
•> .-.
: j i)
-------
LIST OF APPENDICES
Page
A. Methods for Measuring the Acute Toxicity of
Effluents to Aquatic Organisms, EPA-600/4-78-012 . . . A-l
3. Toxicity Test Report Outline B-l
C. Laboratory Review or Audit C-l
D. Example of Daily Activities of On-site Toxicity
Monitoring D-l
E. Sample Tags and Chain of Custody Forms E-l
F. Document Handling Procedures . F-l
G. Definitions G-l
H. Factors Useful in Selecting Candidates for
Inspection H-l
I. Conduct of' Inspections After the Barlow's
Decision ......... 1-1
xx
-------
V / O
-------
II.B.5.
"NPDES Compliance Monitoring Inspector Training, with Modules on Overview,
Legal Issues, Sampling Procedures, Biomonitoring, Laboratory Analyses
Modules", dated 1988. Table of Contents of individual modules only.
-------
-------
SEFft
UnitedStates Office Of Water Enforcement and Permits
environmental Protection Office of Water
Ag«ey Washington DC 204«0 Septate 1988
NPDES Compliance
Monitoring Inspector
Training
Overview
-------
NPDSS Compliance Monitoring Inspector Training Module: OVERVIEW
TABLE OF CONTENTS
Page
FOREWORD . : vii
1. INTRODUCTION . •... 1-1
1.1 OVERVIEW OF THE NPDES PROGRAM 1-i
1.2 PURPOSE OP THE NPDES COMPLIANCE MONITORING PROGRAM 1-2
2. NPDES COMPLIANCE ACTIVITIES 2-1
2.1 COMPLIANCE REVIEWS 2-1
2.2 NPDES COMPLIANCE INSPECTIONS 2-1
3. SPECIAL CONSIDERATIONS 3-1
3.1 INSPECTOR CONDUCT 3-1
3.2 DISCLOSURE OF INFORMATION 3-1
3.3 FEDERAL AND STATE COOPERATION 3-3
4. GENERAL INSPECTION PROCEDURES "... 4-1
4.1 NPDES INSPECTOR RESPONSIBILITIES 4-1
4.2 PRE-INSPECTION PROCEDURES 4-2
4.3 INSPECTION PROCEDURES 4-6
5. SPECIFIC INSPECTION PROCEDURES 5-1
5.1 COMPLIANCE EVALUATION INSPECTION 5-1
5.2 CONVENTIONAL AND TOXIC COMPLIANCE SAMPLING INSPECTIONS 5-11
5.3 PERFORMANCE AUDIT INSPECTION 5-13
5.4 COMPLIANCE BIOMONITORING INSPECTION 5-17
6. PRETREATMBfr COMPLIANCE INSPECTION 6-1
6.1 REVIEW OF THE GENERAL PRETREATMENT REGULATIONS 6-1
6.2 PRBTRBATMENT COMPLIANCE INSPECTIONS 6-2
6.3 PRETREATMENT PROGRAM AUDITS 6-8
7. REPORTING REQUIREMENTS 7-1
-------
NFDBS Compliance Monitoring Inspector Training Module: OVERVIEW
8.
9.
POST-
8.1
8.2
8.3
8.4
8.5
SUMMJ
-INSPECTION PROCEDURES
PRESENTATION OF FINDINGS
DATA ANALYSIS
COMPLETION AND DISTRIBUTION OF REPORTS AND FORMS.......
TESTIMONY
UPDATING PERMITTEE FILES
«Y \... ,
, . . . 8-1
. . . . 8-1
, . . . 8-1
. ... 8-2
. . . . 8-2
. ... 8-2
9-1
iv
-------
HFDBS Compliance Monitoring Inspector Training Module: OVERVIEW
LIST OF APPENDICES
APPENDIX A - GLOSSARY
APPENDIX B - REFERENCES
APPENDIX C - REVIEW QUESTIONS AND ANSWERS ON THE OVERVIEW OF THE NPDES
COMPLIANCE INSPECTION PROGRAM
APPENDIX D - SECTION 308 OF THE CLEAN WATER ACT
APPENDIX E - CRITERIA FOR NEUTRAL SELECTION OF NPDES COMPLIANCE INSPECTION
CANDIDATES
APPENDIX F - LIST OF FIELD SAMPLING EQUIPMENT
APPENDIX G - NPDES COMPLIANCE INSPECTION REPORT FORM (EPA FORM 3560-3)
APPENDIX H - DEFICIENCY NOTICE GUIDANCE AND FORM
LIST OF TABLES AND FIGURES
Table Page
6-1 SUMMARY OF THE GENERAL PRETREATMENT REGULATIONS 6-3
Figure
2-1 NPDES COMPLIANCE INSPECTIONS 2-2
-------
United States Enforcement Division
Environmental Protection Office of Water Enforcement and Permits
Agency Washington, DC 20460
vvEPA
July 1988
NPDES Compliance
Monitoring Inspector
Training
Legal Issues
-------
-------
H/834-485-02a/#13
HPDBS Compliance Monitoring Inspector Training: LEGAL ISSUES
TABLE OF CONTENTS
Page
FOREWORD v
1. INTRODUCTION 1-1
1.1 OVERVIEW OF THE NPDES PROGRAM 1-1
1.2 PURPOSE OF THE NPDES COMPLIANCE MONITORING PROGRAM 1-2
1.3 SOURCES OF LEGAL AUTHORITY 1-3
1.4 NPDES AUTHORITY. 1-4
2. AUTHORITY TO INSPECT 2-1
3. PERSONS SUBJECT TO INSPECTIONS 3-1 -
4. PREINSPECTION LEGALITIES 4-1
4.1 NEUTRAL INSPECTION PLAN 4-1
4.2 308 LETTERS 4-2
4.3 CONFIDENTIALITY 4-3
4.4 COMPLIANCE FILE 4-6
4.5 PERMITTEE RIGHTS '. 4-7
5. INSPECTION OBJECTIVES 5-1
6. INSPECTION LEGALITIES 6-1
6.1 ENTERING THE FACILITY 6-1
6.2 PRESENTING CREDENTIALS 6-1
6.3 OBTAINING CONSENT TO INSPECT 6-3
6.4 WITHDRAWAL OF CONSENT 6-4
7. WARRANTS 7-1
7.1 REASONS FOR ISSUING A WARRANT 7-1
7.2 TYPES OF WARRANTS 7-2
7.3 REASONS TO SEEK WARRANT IN ADVANCE 7-2
7.4 OBTAINING THE WARRANT 7-3
7.5 CRIMINAL SEARCH WARRANT • 7-4
7.6 BURDEN OF PROOF - 7-6
8. GATHERING AND PRESERVING EVIDENCE 8-1
8.1 SAMPLE RESULTS AS EVIDENCE 8-1
8.2 PHOTOGRAPHS. 8-2
9. BASIS FOR TESTIMONY ' 9-1
ill
-------
H/834-485-02a/#13
•
NPDBS Compliance Monitoring Inspector Training* LEGAL ISSUES
TABLE OF CONTENTS (Continued)
Page
10. PRESENTING EVIDENCE FROM INSPECTIONS 10-1
10»1 ADMISSIBILITY OP EVIDENCE 10-1
10.2 OFFICIAL DOCUMENTS 10-1
10.3 SERVING AS A WITNESS 10-2
11. LIABILITIES ....*. 11-1
12. SUMMARY 12-1
APPENDICES
APPENDIX A - SECTIONS OP THE CLEAN WATER ACT RELEVANT TO NPDES INSPECTORS
APPENDIX B - CRITERIA FOR NEUTRAL SELECTION OF NPDES COMPLIANCE INSPECTION
CANDIDATES
APPENDIX C - SAMPLE 308 LETTER
APPENDIX D - EPA MEMORANDA ON ENTRY PROCEDURES
APPENDIX B - EXAMPLE WARRANT INCLUDING UNDERLYING AFFADAVIT
APPENDIX F - REVIEV QUESTIONS AND ANSVERS ON LEGAL ISSUES
LIST OF TABLES
Table Page
6-1 "STEPS FOR ENTERING A FACILITY 6-2
-------
vvEPA
United States Enforcement Division
Environmental Protection Office of Water Enforcement and Permits
Agency Washington. DC 20460 August 1988
NPDES Compliance
Monitoring Inspector
Training -
Sampling Procedures
-------
-------
NPDES Compliance Monitoring Inspector Training: SAMPLING PROCEDURES
TABLE OF CONTENTS
Page
FOREWORD ' . . vi
1. INTRODUCTION 1-1
1.1 OVERVIEW OF THE NPDES PROGRAM 1-1
1.2 PURPOSE OF THE NPDES COMPLIANCE MONITORING PROGRAM 1-2
1.3 OBJECTIVES OF NPDES SAMPLING 1-3
1.4 SAMPLING TASKS 1-3.
2. SAMPLE COLLECTION 2-1
2.1 IMPORTANCE OF "AMPLE COLLECTION 2-1
2.2 SAMPLING PLAf '. 2-2
2 . 3 PREPARATION ? SAMPLING ; 2 -4
2.4 SAMPLING SAFE' 2-5
2.5 SAMPLING LOCA ON 2-5
2.6 SELECTION AND REPARATION OF SAMPLE CONTAINERS Z-7
2.7 SAMPLE TYPES 2-10
Z . 8 SAMPLE COLLECTION TECHNIQUES 2-13
:.'? SAMPLE VOLUME 2-17
:.10 SAMPLE PRESERVATION AND HOLDING TIMES 2-13
2.11 SAMPLE DOCUMENTATION 2-19
2 . 12 SAMPLE IDENTIFICATION AND LABELING 2-21
2.13 SAMPLE PACKAGING AND SHIPPING : 2-21
2.14 SPECIAL SAMPLING REQUIREMENTS 2-22
3. ANALYTICAL METHODS FOR ONSITE ANALYSIS 3-1
4. AUTOMATIC SAMPLERS 4-1
5. FLOU MEASUREMENT 5-1
5.1 IMPORTANCE OF FLOW MEASUREMENT , 5-1
5.2 OPEN CHANNEL FLOW 5-1
5.3 CLOSED CHANNEL FLOW 5-8
-------
NPDBS Compliance Monitoring Inspector Training: SAMPLING PROCEDURES
TABLE OF CONTENTS (Continued)
Page
6. QUALITY ASSURANCE/QUALITY CONTROL 6-1
6.1 QUALITY CONTROL PROCEDURES FOR SAMPLING 6-1
6.2 QUALITY ASSURANCE PROCEDURES FOR*-SAMP LING 6-2
6.3 LABORATORY QUALITY ASSURANCE/QUALITY CONTROL 6-4
7. CHAIN-OF-CUSTODY PROCEDURES 7-1
8. SUMMARY 8-1
«
APPENDICES
APPENDIX A - GLOSSARY
APPENDIX B - REFERENCES
APPENDIX C - REVIEW QUESTIONS AND ANSWERS'ON NPDES SAMPLING PROCEDURES
APPENDIX D - VOLUME OF SAMPLE REQUIRED FOR DETERMINATION OF THE VARIOUS
CONSTITUENTS OF INDUSTRIAL WASTEVATER
APPENDIX E - REQUIRED CONTAINERS, PRESERVATION TECHNIQUES, HOLDING TIMES, AND
TEST METHODS
APPENDIX F - EPA ORDER 1440.2 - HEALTH AND SAFETY REQUIREMENTS FOR EMPLOYEES
ENGAGED IN FIELD ACTIVITIES
APPENDIX G - LIST OP FIELD SAMPLING EQUIPMENT
APPENDIX H - SAMPLE IDENTIFICATION LABELS
APPENDIX I - CRITERIA FOR SELECTION OF AUTOMATIC SAMPLING EQUIPMENT
APPENDIX J - QUALITY CONTROL PROCEDURES FOR FIELD ANALYSIS AND EQUIPMENT
APPENDIX K - EXAMPLE RECORD OP FIELD SAMPLE DATA AND CHAIN-OF-CUSTODY RECORD
-------
NPDBS Compliance Monitoring Inspector Training: SAMPLING PROCEDURES
LIST OF FIGURES AND TABLES
Figure
Table
Page
5-1
5-2
5-3
5-4
5-5
PROFILE AND NOMENCLATURE OF SHARP-CRESTED UEIRS
THREE COMMON TYPES OF SHARP-CRESTED WEIRS
DIMENSIONS AND CAPACITIES OF THE PARSHALL MEASURING FLUMES
FOR VARIOUS THROAT UIDTHS
CONFIGURATION AND NOMENCLATURE OF VENTURI METER
ELECTROMAGNETIC FLOW METER
5-3
5-4
5-6
5-9
5-10 •
Page
2-1
COMPOSITING METHODS
2-U
-------
-------
United States Office of Water Enforcement and Permits
Environmental Protection Office of Water
Agency Washington, DC 20460 September 1988
NPDES Compliance
Monitoring Inspector
Training
Laboratory Analysis
-------
J
-------
NPDBS Compliance Monitoring Inspector Training: LABORATORY ANALYSIS
TABLE OF CONTENTS
Page
FOREWORD v
1. INTRODUCTION 1-1
1.1 OVERVIEW OF THE NPDES PROGRAM 1-1
1.2 PURPOSE OF THE NPDES COMPLIANCE MONITORING PROGRAM 1-2
2. PERFORMANCE AUDIT INSPECTION 2-1
2.1 PREINSPECTION PLANNING 2-1
2.2 INITIAL MEETING 2-5
2.3 LABORATORY QA/QC PROGRAM 2-8
2.4 SAMPLING TECHNIQUES 2-14
2.5 LABORATORY SAMPLE CONTROL 2-15
2.6 ANALYTICAL METHODS 2-18
2.7 EVALUATION OF LABORATORY QA/QC PROGRAMS 2-22
2.8 LABORATORY FACILITIES AND EQUIPMENT 2-32
2.9 RECORDS AND REPORTS REVIEW 2-49
2.10 EXIT MEETING AND FINAL REPORT. 2-51
3. COMPLIANCE EVALUATION INSPECTION 3-1
3.1 RECORDS AND REPORTS REVIEW 3-1
3.2 REVIEW OF SELF-MONITORING DATA, PROCEDURES, AND
LABORATORY FACILITIES 3-2
4. SUMMARY 4-1
iii
-------
NPDBS Compliance Monitoring Inspector Training: LABORATORT ANALYSIS
•
APPENDICES
APPENDIX A - REFERENCES
APPENDIX B - GLOSSARY
APPENDIX C - APPROVED METHODS
APPENDIX D - SAMPLE CONTROL FORM
APPENDIX E - FORM FOR ASSESSING RELEVANT ANALYTICAL METHODS
APPENDIX F - METHODS CHECKLISTS
APPENDIX G - POTENTIAL PROBLEM AREAS ASSOCIATED WITH POLLUTANT ANALYSIS
APPENDIX H - LABORATORY SERVICES
APPENDIX I - EXAMPLE OF BENCH SHEET
APPENDIX J - REVIEV QUESTIONS AND ANSWERS
LIST OF FIGURES AND TABLES
Figure Page
2-1
2-2
2-3
2-4
PRECISION AND ACCURACY
EXAMPLE CONTROL CHART
EPA DEFICIENCY NOTICE FORM
NPDES COMPLIANCE INSPECTION REPORT FORM
2-24
2-27
2-53
2-54
Table Page
2-1 QA QUESTIONS 2-10
2-2 ANALYSIS OF TOTAL PHOSPHATE-PHOSPHORUS STANDARDS 2-28
iv
-------
3-EPA
United States Office of Water Enforcement and Permits
Environmental Protection Office of Water
Agency Washington, DC 20460 August 1988
NPDES Compliance
Monitoring Inspector
Training
Biomonitoring
-------
-------
NPH3 Compliance Monitoring Inspector Training Module: BIOMONITORING
TABLE OF CONTENTS
Page
FOREWORD vi
I. INTRODUCTION. 1-1
1.1 OVERVIEW OF THE NPDES PROGRAM 1-1
1.2 CONCEPT OF TOXICITY 1-2
1.3 TOXICITY TESTING IN THE NPDES COMPLIANCE
MONITORING PROGRAM 1-4
2. BASICS OF TOXICITY TESTING 2-1
2.1 TGXICITY TEST DESIGN ' 2-1
2.2 ACUTE AND CHRONIC TESTS 2-3
2.3 FLOW-THROUGH, STATIC RENEWAL, AND STATIC TESTS 2-4
2.4 ANALYSIS OF TEST RESULTS 2-3
3. TOXICITY TEST COMPONENTS 3-1
3.1 EFFLUENT 3-3
3.2 DILUTION WATER 3-4
3.3 TEST SYSTEM 3-4
3.4 TEST ORGANISMS 3-4
3.5 TEST RESULTS 3-5
3.6 ' SUMMARY 3-6
4. EFFLUENT 4-1
4.1 SAMPLING STRATEGIES 4-1
4.2 SAMPLE STORAGE AND PRESERVATION 4-3
5. DILUHOH WATER 5-1
5.1 SOURCES OP DILUTION WATER 5-1
5.2 STORAGE CONDITIONS AND HOLDING TIMES 5-2
6. TEST ORGANISMS. -.. 6-1
6.1 SPECIES USED 6-1
6.2 SOURCES OP TEST ORGANISMS 6-5
6.3 ACCLIMATION AND FEEDING 6-6
6.4 DISEASE 6-7
6.5 LOADING RATES 6-7
-------
Coaplianc* Monitoring Inspector Training Nodules BXOMONITORINC
TABLE OF CONTENTS (Continued)
Pag*
7. TEST SYSTEM 7-1
7.1 MATERIALS USED 7-1
7.2 CLEANING 7-2
7.3 TEST CONDITIONS 7-3
8. TEST RESULTS 8-1
8.1 CONTROL SURVIVAL 8-1
8.2 RESULTS CALCULATIONS 8-1
»
APPENDICES
APPENDIX A - QUESTIONS AND ANSWERS ON THE BIOMONITORING MODULE
-------
NPOCS Compliance Monitoring Inspector Training Module: BIOMONTTORING
LIST OF FIGURES AND TABLES
Figure Page
2-1
2-2
3-1
TYPICAL EFFLUENT CONCENTRATIONS USED IN TESTING
TYPICAL TOXICITY TEST RESULTS SHOVING DESCRIPTIVE
STATISTICS CALCULATED USING THE RESULTS
RELATIONSHIPS BETWEEN TOXICITY TESTING COMPONENTS,
SHOVING IMPORTANT FACTORS FOR EACH
2-2
2-6
3-2
Table • Page
4-1 RECOMMENDED SAMPLING STRATEGY FOR CONTINUOUS AND
INTERMITTENT DISCHARGES FOR FLOV-THROUGH, STATIC
RENEVAL, AND STATIC TOXICITY TESTS 4-2
6-1 FRESHVATER SPECIES FOR VHICH THERE ARE ACUTE TOXICITY
. TESTING PROTOCOLS 6-2
6-2 MARINE AND ESTUARINE SPECIES FOR VHICH THERE ARE
ACUTE TOXICITY TESTING PROTOCOLS 6-3
6-3 SPECIES FOR VHICH THERE ARE CHRONIC TOXICITY TESTING
PROTOCOLS, ORGANIZED BY SPECIES 6-4
-------
II.B.6.
"NPDES Compliance Evaluation Inspection Manual", dated January 1981. Table
of Contents only.
. •?>•-. •
.-M-i=..
-------
^-&\.&r;^~--^~xVfS&r--
-------
United States
Environmental Protection
Agency
Office of Water Enforcement
Enforcement Division (EN-338)
Washington, DC 20460
January 1981
Water
onipiiancs bvaluation
snysi
—
-------
7
-------
NPDES COMPLIANCE EVALUATION INSPECTION MANUAL
TABLE OF CONTENTS
• ' . PAGE
INTRODUCTION i
ADMINISTRATION
I. Work Ethics 1-1
II. Disclosure of Official Information 1-5
III. Diaries and Field Notes 1-8
PREPARATION FOR INSPECTION
I. General 2-1
II. Objectives 2-1
HI. Inspector's Responsibility 2-2
IV. Preinspection Techniques 2-2
V. Compliance Files 2-4
VI. Types of Compliance Inspections 2-11
.>. TREATMENT FACILITY REVIEW
I. Authority 3-1
II. General 3-2
III. Objectives 3-3
IV. Inspector's Obligation 3-4
V. Inspection Procedures 3-b
VI. Post-Inspection Discussion with Management 3-15
•1. RECORDS AND REPORTS REVIEW
I. Authority 4-1
II. General . 4-1
III. Objectives 4-2
IV. Inspection Procedures 4-3
:>- COMPLIANCE SCHEDULE STATUS REVIEW
I. Authority 5-1
H. General 5-1
III. Objectives 5-2
IV. Inspection Procedures 5-2
'•" SELF-MONITORING PROGRAM REVIEW
I. Authority 6-1
II. Objectives . 6-1
III. Inspection Procedures 6-2
IV. Quality Assurance 6-10
'• MULTIMEDIA INSPECTIONS
I. Authority 7-1
II. Inspector's Responsibility 7-3
III. Inspection Procedures . 7-4
-------
8.
9.
10.
11.
12.
SPECIAL CONSIDERATIONS AND TECHNIQUES
I. Citizen Complaint Investigations
II. Photographs
III. Best Management Practices
IV. Spill Prevention Control and
Countermeasure Plan
V. Interagency Regulatory Liaison •
Group Referral Inspection Program
FEDERAL AND STATE COOPERATION
I. Authority
II. Objectives
III. Policy
SAFETY
I. General
II. Safety Equipment
III. Safety Precautions
IV. Hazardous Waste Disposal
Sites
ACCESS AND WARRANTS
I. General
II. Objectives
ILL Unreasonable Search and Seizure
IV. Neutral Inspection Scheme
V. Right of Entry
VI. Privilege Against Selt-Incrimination
COMPLIANCE INSPECTION REPORT
I. General
I.I. Objectives
III. Procedures
IV. Abbreviated Narrative Reports
V. Deficiency Notice
8-1
8-3
8-8
8-12
8-12
9-1
9-1
9-2
10-1
10-2
10-3
10-4
11-1
11-3
11-4
11-4
11-6
ll-li
12-1
12-1
12-2
12-12
12-13
REFERENCES
SECTION REFERENCES
APPENDICES
k
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II.B.7.
"Neutral Inspection Plan for the NPDES Program", dated February 17, 1981
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-------
^
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I WASHINGTON. C.C 20460
OF~;Ci OF ENrOSCtMEN"
MEMORANDUM
SUBJECT: Neutral Inspection Pian^ior the N?DES?jLO»ram
FROM: Edward A. Kurent ..
Director, En for center.^ &ivd,s/ion TEN- 3 3
TO: Regional Enforcement Division Directors
Regional S&A Division Directors
• Director, NEIC
Attached is the final Neutral Inspection Plan which was
developed for the NPDES Compliance Inspection Program. This plan
fulfills the requirements for performing neutral compliance inspec-
tions based on the Marshall v Barlow's, Inc. ruling. The Neutral
Inspection Plan must be used to target ail inspections which are
not based on some type of probable cause. Copies of this plan were
distributed to each Region last year for comments.
The selection of candidates for neutral inspections each- year
will be based on only two factors; the length of time since the
last inspection and geographic grouping (to minimize the use of
resources) . The initial selection process will be done by computer
using the Permit Compliance System (PCS). Selecting specific per-
mittees for inspections will then be based on common geographic
areas. For example, a permittee with a low priority for inspection
may be chosen if it is in close physical proximity to a permittee
with a very high priority for inspection.
This plan will not be used to target all NPDES compliance
inspections, only those based on administrative factors. We expect
that the portion of inspections which are not based on some form of
civil probable cause (DMR data, citizen complaints) will be very
small. Indeed, some Regions plan all their inspections based on
probable cause for violations" In these cases, no Neutral Inspec-
tion Plan would be needed. Similarly, some Regions (along with the
States) are able to inspect each major permittee once a year. Since
this Neutral inspection Plan is based on annual planning, it would
not be needed in these cases.
-------
Several Regions commented that the significance of the
discharger should be a factor. Since chis plan will be applied
only to major permittees, we believe this issue is basically
addressed. In addition, when the new major/minor designation sys-
tem is complete, PCS will be able to use potential for a permittee
to discharge toxics as a factor in the neutral inspection process.
Without this information in PCS, it would be necessary to perform
a review of every major permittee to determine the toxics discharge
potential. This would place an unreasonable burden on Regional
enforcement programs.
If you have any questions or comments on thi-s plan, please
contact me or Brian Maas of the Enforcement Division staff at
755-0994.
Attachnen-
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CRITERIA FOR NEUTRAL SELECTION OF
NPDES COMPLIANCE INSPECTION CANDIDATES
A. BACKGROUND
In rescor.se co the recent Suoreme Court decision in
™ * j
Marshall v. Sarlow's Inc., 436 U.S. 307 (1978), the Agency
is developing neutral inspection criteria to be used when
targeting compliance inspections. The.purpose of using the
neutral inspection plan is to eliminate any bias in choosinc
candidates for compliance inspections.
Under the National Pollutant Discharge Elimination
System (NPDES) authorized by Section 402(a)(l) of the Clean
Water Act, over 50/000 permits have been issued for the dis-
charge of pollutants. Of these issued permits, about 8,000
have been classified by EPA or states with NPDES authority
as major permittees. The designation of a permittee as
"major" is based on quantity and potential environmental
impact of the wastewater source.
EPA's program to monitor compliance with the terms and
conditions of issued NPDES permits is primarily designed to
ensure the compliance of the major permittees. EPA has not
been provided with sufficient resources to routinely monitc:
the compliance of the remaining minor permittees.'
Compliance inspections performed under the NPDES pro-
gram can.'be divided into two general. categories: 1) those
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2
inspections based on administrative factors; and 2) those
inspections based on specific evidence of an existing
violation, e.g. civil probable cause.
Inspections based on the second category are not
neutral since ..they are based on prior knowledge of apparent
or probable permit violations. • Factors which constitute
specific evidence include: 1) violations reported on recent
DMR's; 2) citizen complaints; 3} response to emergency
situations, such as threats to public health or safety;
4) follow-up to previous inspections which indicated
violations; and 5) specific enforcement case support.
For targeting inspections which rely strictly on
administrative factors,-the Agency has developed the
following neutral inspection plan.
3. UNIVERSE OF NPDES INSPECTION CANDIDATES
The EPA, upon the presentation of credentials, has the
authority to enter 'and inspect all NPDES permitted facilities
at any time regardless of other factors such as "aajor" or
"minor" designations. Because of limited resources, not all
facilities are targeted for inspections each year. The
frequency with which compliance inspections are performed
is .based on the discharger's environmental significance,
available resources, the types and mix of inspections being
employed, climatic and geographical influences on inspection
logistics, and other factors influencing compliance monitor-
ing such as the ability to follow .up on inspection findings.]
?•'; A
riu
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C. BASIC SELECTION CRITERIA
When targeting permittees cf neutral compliance
inspections, the time that has passed since the last inspec-
tion and the geographical grouping of the permittees are the
only factors which may be considered. Other information, such
->.£'.>"''v
as daca froifc DMR's which indicated apparent violations, would
t\
not be used since this would constitute probable cause under
the civil standard. However, the existence of such data would
not preclude the facility from being considered for a neutral
inspection if this neutral plan is followed during the
selection process.
The only permittees who would not be considered when
targeting neutral compliance inspections are permittees who
are in current: litigation with EPA. This does not apply to
state litigation.
D. NEUTRAL COMPLIANCE INSPECTIONS
To target inspections based on a neutral inspection plan,
-Regions will first determine the length of time that has
passed since the last EPA or state inspection for all major
permittees. This can be done easily using the capabilities
of the Permit Compliance System (PCS) available in each EPA
Regional Office. A PCS report can be generated which will
print out each major permittee in order by the-date of the .
last inspection. Appendix A contains a sample list which
the PCS System can generate. A. separate report should be
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4 i
generated for each state in the Region. In some cases, it
may be appropriate to use subdistricts (by county) of a s-acs
dec-ending en the organizational structure in a-specific s^ate
or Region. The permittees which are highest on the list
(greatest time since last inspection) will have the highest
priority for neutral inspections.
In order to minimize use of Ag.ency resources, inspection
targeting should be based on both the priority list and
geographical grouping. For example, any permittee on the list
may be targeted for an inspection if it is in close physical
proximity to a facility which is very high on the list. This
is extremely important as it allows the most.efficient use of
the limited inspection resources. The PCS System can give tai
names and most recent inspection dates for all permittees
which are in the same county as a permittee which is selected
for an inspection.
The priority list will identify only those facilities
which are possible targets for compliance inspections during
the current fiscal year. The exact timing of these inspec-
tions during the fiscal year will be at the discretion of-
the Regional Office, based on logistics and specific Regional
needs.
The list of permittees targeted for inspections may be
amended at any time during the fiscal year. Similarly, before
the start of a new fiscal year,- Regional Offices should
-------
reassess ail permittees regardless cf whether all previously
targeted inspections have been completed for the current
fiscal year. . •
INSTRUCTION'S FOR TARGETING INSPECTIONS BASED ON THE POIHT
ASSESSMENT SYSTEM
To use the neutral inspection plan, Regional Offices will
first determine the percentage of inspection resources that
will be devoted to neutral administrative inspections. This
will depend, to a large extent, on the ongoing enforcement
case load and the percentage of major permittees which have
probable violations of effluent limitations and compliance
schedules. For example, a Region may allocate the following
resources for neutral inspection activities:
a) 10% of the Compliance- Sampling Inspection resources;
b) 25% of the Performance Audit Inspection resources;
and _ •
c) 50% of the Compliance Evaluation Inspection
resources.
The remaining Regional inspection resources would be
reserved for inspections based on probable cause and specific
enforcement case support.
The Region should next determine the approximate number
of neutral inspections that can be completed using the
resources a-iiocatec for each inspection type (CSI, CEI, ?AI) .
This number will be flexible depending on the type and/or the
number of outfalls and size of the cermitted facilitv.
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For each state, starting with the permittees highest on
the list, proceed down the priority list until about one third
of the neutral inspection resources for that stats have been
allocated. Tor example, if the allocated inspection resources
for neutral inspections in a particular state are enough for
30 inspections, approximately the first 10 permittees on the
priority list would be targeted. The Region should then use
the remaining 20 inspections for permittees which are grouped
with .the already targeted candidates- based on common geographi-
cal and/or special technical considerations. For example, a
Region may target a sampling inspection at a facility with a
high point rating, and then target several more sampling*
inspections, CEI's or PAl's in the same geographic area. This
would allow all these inspections to be done on one inspectirj
.trip.
Regions may target inspections to single facilites at
times, such -as when the facility is in close proximity to
Regional Offices or Field Offices.
A specific percentage of inspection resources are set
aside each fiscal year for enforcement case support activi-
ties -and emergency response. 3y the last quarter of the
fiscal year, Regions should know to what extent these
set-aside resources will be available for routine inspections.
To the extent that these resources become available, they
should be utilized to inspect the remaining permittees on the
priority list.
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Apoer.cix A
The following two pages are sample printouts from the Ferr.it
Ccn-.piisr.ee System (PCS) for the State of Mew Jersey. Printout 1
gives a partial listing of major KPDES facilities in order by th=
date cf the last inspection. Permittees with no date listed for
inspections have not had an inspection which was noted in PCS.
These permittees will have the highest priority for neutral
inspections. . . •
Printout 2 is a list of permittees and inspection dates by
county (for New Jersey). This Printout is used to identify per-
mittees which may be in close physical proximity to facilities
which were chosen for inspections from Printout 1.
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•p.'
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II.B.8.
"NPDES INSPECTION STRATEGY AND GUIDANCE FOR PREPARING ANNUAL STATE/EPA
COMPLIANCE INSPECTION PLANS", dated April 1985 with transmittal dated April
16, 1985.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20450
APR 2 6 1385
OPFICE OF
WATER
MEMORANDUM
SUBJECT: Transmittal of the Final NPDES Inspection Strategy
and Guidance for Preparing Annual State/EPA Compliance
Inspection Plans /"") • . •
' Tye./W/ccA- (/-*• n7-1 ^ rr^s^-—
FROM: Rebecca W. Hanmer, Director
Office of Water Enforcement and Permits (EN-335)
TO: Regional Water Management Division Directors
Regional Environmental Services Division Directors
State Program Directors
Attached are the final NPDES Inspection Strategy and the
Guidance for Preparing Annual State/EPA Compliance Inspection Plans.
The Strategy and Guidance were developed during December 1984 with
the assistance of a workgroup composed of representatives from six
EPA Regions and two States, and the EPA Headquarters Offices of
Water Enforcement and Permits, and Enforcement and Compliance
Monitoring. In January 1985 the Strategy and Guidance were sent to
EPA Regions and to all States through the Association of State and
Interstate Water Pollution Control Administrators (ASIWPCA). Comments
were received from nine EPA Regions and four States. In addition,
the Inspection Strategy and Guidance were discussed briefly at the
ASIWPCA meeting in Washington, D.C., February 1985. The resulting
documents reflect those discussions as well as EPA Regional and
State comments.
The comments were helpful in focusing on specific areas where
clarification was needed. We believe.we have accomplished our common
goal of producing an overall national structure for NPDES inspection
programs, which will serve as a model for EPA Regions and States.
during implementation.
The Inspection Strategy deals with issues such as inspection
priorities, inspection mix, inspection report timeliness and
reporting forms, and State/EPA relationships. The Guidance for
Preparing Annual State/EPA Compliance Inspection Plans, along with
the Strategy, are being transmitted" to Regions in time for the
FY 1986 planning cycle and should be used as a general guide and
framework for planning the annual inspection programs in each State.
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- 2 -
These documents should be used in conjunction with the Agency Annual
Operating Guidance and the Annual Guidance for Oversight of NPDES
Programs. The Inspection Strategy and Guidance will eventually be
incorporated into the new Enforcement Management System Guide which
is presently being revised by an EPA Region/State workgroup.
Some additional language on pretreatment has been added to
the Inspection Strategy in response to the final Pretreatment
Implementation and Review Task Force Report. However, at present
the Inspection Strategy and Guidance do not contain detailed
information on pretreatment and sludge inspections. Information
on pretreatment will be provided later in specific guidance and
in the Strategic Planning and Management System.
If you have any questions on the 'Inspection Strategy or
Guidance, please contact Oavid Lyons, Chief, Enforcement Support
Branch, Enforcement Division (FTS or 202/475-8310).
Attachment
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Unites States
Environmental Protection
Agency
Off.cc of Wotcr
Enforcement ana Permits (EN-323)
Washington DC 20460
NPDES INSPECTION STRATEGY
and
GUIDANCE FOR PREPARING ANNUAL
STATE/EPA COMPLIANCE INSPECTION
PLANS
Office of Water Enforcement and Permits
April 1935
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Highlights
NPDES Inspection Strategy
and
Guidance for Preparing State/EPA
Compliance Inspection Plans
NPDES Inspection Strategy
The Inspection Strategy is divided into <:ive main sections:
Background, Inspection Coverage, Mix of Inspections, Reporting,
and EPA/State Relationships:
Background
0 Explains that both EPA and the State share responsibility for
developing and carrying out the NPDES Compliance Inspection
Programs.
0 Sets out the major purposes of these inspections which are to:
satisfy the regulations, verify permittee compliance, develop
enforcement information, improve permittee performance, improve
data quality assurance, provide State overview, respond to
citizen complaints and water quality problems, support permit
development, and maintain regulatory presence.
Inspection Coverage
0 Explains what types of Inspections make up the total NPDES
Inspection scheme, including the Reconnaissance Inspection.
0 States that all major NPDES permittees should be inspected at
least once a year by EPA or the State.
0 Expands coverage of major POTW inspections to include a
pretreatment component where the POTW has an approved program.
o
Establishes inspection priorities of (1) Inspections to respond to
emergency circumstances and public health problems; (2) Inspections
to support enforcement and potential enforcement actions; (3)
Inspections to support development of major permits; and (4)
Routine compliance monitoring inspections.
Mix of Inspections hy Type
0 Makes it clear that the mix of inspections within each state
will be tailored to the needs in each State.
o
Establishes the idea that a core capability will be maintained
for conducting each type of inspection within the geographic
boundaries of each State, and that EPA and State should work to
eliminate unnecessary redundancies.
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11
Reporting
0 Describes how inspection data should be reported to EPA and
' how the results of the inspections should be reported.
0 Makes it clear that the inspection reports are complete when they
contain all necessary supporting data and have been signed by the
reviewer.
0 Establishes the fact that the Form 3560-3 must be filled out in
order for the inspection to be entered into PCS (except when a
State enters data directly to PCS) and in order to receive credit
in SPMS. Timeliness criteria are established for completion of
reports and entering data into PCS.
EPA State Relationships
0 Makes it clear that the Annual Inspection Plan should be part of
the Annual 5106 grant agreement or the State/EPA agreement.
0 Sets out the concept of joint planning using the Annual State/EPA
Inspection Plan.
Guidance for State EPA Compliance Inspection Plans
The following are the major categories of the Guidance:
Background
0 Explains that a 1983 evaluation showed the State/EPA planning
documents lacked specific details needed to coordinate inspection
activities, to manage resources, and avoid duplication.
0 States that the Annual Inspection Plans are developed to
correct these problems.
Purpose of the Plan
0 To provide a basis for achieving National NPDES goals, and
to coordinate and improve use of the compliance inspection
resources.
Content of Plan
0 Includes such specific items as workload projections, number
and mix of inspections, criteria for selecting inspection
candidates and procedures and timeframes for inspection reports
and data entry.
', j /
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Ill
Approval of. Plan
0 Plan is to be signed by the State and Regional program directors.
Implementing the Plan
0 Establishes that the Region will normally provide prior notice
to the State before conducting independent inspections, and that
States will be apprised of major inspection problems as soon
as they are discovered.
Evaluation of the Results
0 The plan should contain procedures for the ongoing evaluation
of a State inspection program through such means as" periodic
random audits of inspection reports and case files.
0 The level and frequency of the State inspection program evaluation
should be tailored to the State's overall performance in the
inspection program.
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Introduct ion
For FY 1985 the Office of Water Enforcement and Permits (OWEP)
established as a major goal the completion of an NPDES Inspection
Strategy, and the Guidance for State/EPA Inspection Plans. The
Inspection Strategy is designed to describe how OWEP and the Regional
Offices address questions on who, when and how to inspect. It
addresses such issues as mix of inspections, coverage, EPA/State
relationships and reporting on inspections.
The Guidance for Preparing Annual State/EPA Compliance Inspection
Plans resulted from the FY 1983 OWEP evaluation of EPA inspection
programs, which showed that the then current documents such as
grant agreements lacked specific detail needed to coordinate
inspections, manage resources and avoid duplication. The results
of the evaluation included a recommendation to prepare annual
EPA/State Compliance Inspection Plans. The Guidance f-or State/EPA
Inspection Plans discusses how to go about preparing those Plans.
The Inspection Strategy and the Guidance for Preparing Annual
State/EPA Compliance Inspection Plans are the major documents
on managing the Inspection Program. Earlier OWEP documents dealing
with program operations, strategies and memoranda are superseded
by these two documents. Guidance that should be used in conjunction
with the two above cited documents for program management include
but are not limited to:
0 Annual EPA Operating Guidance,
0 Annual Strategic Planning and Management System documents,
0 Annual OWEP Guidance for Oversight of NPDES Programs,
0 Annual Workload Model for Water Ouality Enforcement,
0 Enforcement Management System, as revised, and
0 NPDES Neutral Inspection Plan (2-17-81).
Manuals describing procedures for conducting inspections are
found as Item A in the Appendix.
It should be noted that the NPDES Inspection Strategy and Guidance
provide information primarily on the NPDES inspection program,
and do not address many special concerns of the pretreatment and
sludge programs. These concerns will be addressed in supplements
to this document which will be issued within the next year.
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NPOES INSPECTION .STRATEGY
Background and Purpose
NPDES Compliance Inspections are a vital tool in implementing the
NPDES Program. There is a ten-year history of NPDES inspections
being conducted by EPA (and State) inspectors in M^DFS as well as
non-NPDFS states. State Inspection programs have been funded
through the Clean Water Act €106 grants to States. This Strategy
attempts to restate, amplify and clarify the current'approach
Regions and States should he using to implement the NPDES inspection
program. This Strategy should be used as a framework for Regional
and State managers in developing a State-specific inspection program,
and applies to both approved NPDES States and unapproved States.
EPA's primary role with respect to each State's inspection program,
regardless of approval status, will be to: provide enforcement support
overview State inspection programs to ensure they are consistent with
national guidance manuals; provide quality assurance, technical
assistance and training; and augment State routine compliance
inspection programs.
The EPA and States are responsible for developing and carrying out
inspection programs for NPDES Compliance Monitoring in each State.
The programs for each State follow a lead agency concept: States .
have lead responsibility, when their NPDES programs are approved,
and EPA has responsibility in non-NPDES States. These programs
serve many purposes. Some of the most important of these are to:
0 Verify permittee compliance
verify self-monitoring information submitted
verify adequacy of pretreatment programs
0 Satisfy the regulations which require inspections of
all majors once a year
0 Develop enforcement information
0 Improve permittee performance
provide technical information and assistance
improve data quality (follow-up to Discharge Monitoring
Report - Quality Assurance (DMR-OA))
0 Provide State overview
0 Respond .to citizen complaints
0 Respond to water quality problems
* Support permit development
0 Maintain regula.tory presence
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- 3 -
Coverage
The NPDES Regulations at 40 CFR 123.26(e)(5) require States which
administer the NPDES program to have procedures and abilities for
inspecting all major dischargers (permittees) at least annually.
As a matter of policy, all major MpnFS permittees shall be inspected
annually by a combination of Regional and state effort.
The annual inspection requirement may bo satisfied by using any of
the standard compliance inspection protocols described in the Appendix,
Item B. Each State Inspection Program will continue to provide
comprehensive inspections, but at the discretion of the Region or
State, the Reconnaissance Inspection (RI) will be recognized as an
integral part of each State's total inspection mix. The RIs may be
used on a selective basis to satisfy the coverage requirement,.but
may not be used for any major permittees in the following categories:
0 a facility that has been in significant non-compliance in
any of the previous four quarters,
0 a facility in a primary industrial category as defined in
40 CFR 122 Appendix A, or
0 a facility to which pretreatment requirements apply.
The purpose of allowing RIs to be used" to satisfy the routine
compliance inspection coverage requirements for major facilities is
to focus more intensive insnections on .problem facilities. It would
be most appropriate to allow an RI to satisfy the coverage requirement
when the facility is subject to frequent visits and its operational
characteristics are well known to the permitting authority. It would
be generally inappropriate to use an RI to satisfy the annual coverage
requirement for a major facility in two successive years. It should
also be noted that if the results of an RI indicate.significant
problems in a facility's operations or discharge, the problems will
be addressed as soon as possible by conducting a more comprehensive
inspection or other followup action.
In each State, inspection coverage will address the following
priorities, which are arranged from the more important to the less
important (there will also be amplification in each year's Annual
Operating Guidance):
0 Inspections to respond to emergency circumstances and
public health problems.
0 Inspections to support enforcement and potential enforcement
actions.
0 Inspections to verify data quality, to follow up on
Discharge Monitoring Report — Quality Assurance (DMR OA).
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0 Inspections to support development of major permits.*
0 Routine compliance monitoring inspections with all major
facilities covered first, minor PL92-500 facilities,2 then
other minor facilities including those covered by general
permits.
N'PDES Inspection, plans for major POTV.'s which have approved pretreaf.en
programs will need to be expanded to cover implementation of these
programs. Generally, it will be most cost-effective to combine.
the permit effluent limit compliance and pre treatment inspections.
This inspection activity should begin as soon as possible; however,
both the scope of the inspection and. coverage of approved POTVJ
programs will have to be phased in during FY 1985 - 1986 taking
into account availability of resources, timing and availability of
pret-reatment audits and awareness of problems. (More detailed
guidance on .pretreatment inspection procedures will be forthcoming,
as a supplement to this Strategy and the Compliance Inspection
Manual.)
The number of joint EPA-State inspections and the number of EPA and
State independent inspections will be negotiated between the EPA
Region and the State, and included as part of the State/EPA Annual
Inspection Plan. Each Region of EPA will maintain an independent
inspection program to carry out its enforcement and overview
responsibilities. The Region will normally provide prior notice
to the State before conducting independent inspections. The only
limited exception would be where investigative inspections would
be jeopardized by the prior notice.
The coverage to satisfy the .total inspection need in a state will
be a responsibility that is shared hy both the Region and.State.
However, direction is provided by the lead agency. In NPDES States,
the State should take the lead in operating the inspection program
(with EPA maintaining an independent inspection effort as noted
above). In non-NPDES States, EPA has the lead responsibility for
operating the inspection program.
This should be limi-ted to situations where the applicant's data
gathering techniques are a matter of contention and all other
options for acquiring the information have been exhausted.
Regional Offices will provide limited inspection coverage for
minor permittees. Specific coverage will be negotiated with
States as part of the Annual State Inspection Plans-.
Routine inspections are also known as neutral inspections as
opposed to "for cause" inspections described in the first two
priorities. This distinction resulted from the decision in
Marshall V. Rarlow's , Tnc. which required different approaches
•in selection of facilities for these inspections. (US, 98 S.
.Ct. 1816 (1978)).
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The lead agency concept will in no case exclude either EPA or a
State from conducting independent inspections as prescribed in the
above paragraph.3 where EPA is relying on inspections by an
unapproved State to satisfy NPDES inspection needs, it must assure
the federal NPDES permit requirements are covered in the State
inspection along with the State requirements.
Mix of IP.?oect 1 ors by Tyne
The type of inspection will be tailored to the individual purposes
to be achieved by the inspection. The mix of inspections within
each State in turn will be tailored to the needs in each State.
A recommended mix of inspections will be developed annually, in
connection with allotment of EPA resources to the Reqions in the
National Water Quality Enforcement Workload Model. In each state,
the recommended mix can be used as a guide in planning the annual
State inspection coverage, which is established in the annual State
EPA compliance inspection plan. The individual State inspection
mix will be tailored to the particular needs of the State such as:
a disproportionately large number of self-monitoring and laboratory
problems among major permittees that need to be addressed with
performance audit inspections, or a large number of dischargers
with toxics limits problems that require toxics sampling inspections.
In selecting appropriate inspection types for special or routine
problems, the definitions of inspect ions .(Item B, Appendix) and
the "primary use" criteria (Item C, Appendix) should be used as a
general guide. The type of inspection selected depends on the
compliance status, type of facility, and the nature of the
information needed from an inspection.
Each Region should assure that a core capability for conducting each
type of inspection is maintained within the geographic boundaries
of the Region. Each State program should be supported where necessary
by technical capability at the Regional level. Unnecessary redundancy
and duplication should be avoided without sacrificing the ability
of States and Regions to carry out their respective roles and
responsibilities.
Under 5309 of the Clean Water Act, EPA must take enforcement
action when the State does not commence appropriate enforcement
action. Consequently, EPA must maintain its own inspection
program and must maintain enforcement presence through field
activities, as required in 5303 of the Clean Water Act.
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Reporting
In order to describe accurately the full extent of: the inspection
program, the Regions and States are encouraged to report on all
NPDES inspections. Data on inspections of major permittees should
be reported in the Permit Compliance System (PCS), whenever possible.
When the State is not a regular user of PCS, it 'should enter the
data into its own automated system and transfer the data into PCS,
or it should provide the data to the Region in a form that f aci li ta te«s
entry into PCS by EPA. To the extent possible, EPA encourages
reporting on inspections of minor permittees in PCS; otherwise data
should be reported to the Region manually in a format that includes at
least the name of the facility, permit number, the type of inspection
and the date of the inspection.
The organization conducting the inspection is responsible for
providing reports that are complete and available in a timely manner.
An inspection report is complete when it contains all the inspector's
observations, the analytical .results, a completed form 3560-3
(Appendix, Item D) , and evidence of peer/management review and
signature of the reviewer. The inspection report should meet
timeliness goals as follows:
0 for sampling inspections, reports will be distributed
within, 45 days of the date of the inspection;
0 for non-sampling inspections, reports will be distributed
within 30 days of the inspection; and
s
0
for entering inspection data into PCS, data entry will
be completed within 90 days of the date of the inspection.
The inspection report must contain Form 3560-3 and the information
must be entered into PCS to receive credit in Strategic Planning
and Management System (SPMS). However, where the State enters data
into PCS directly, the State may use an equivalent form if it
contains at least the same data elements as Form 3560-3. The
format and content of an inspection report are described in the
EPA NPDES Compliance Inspection Manual, (June 1934).
Copies of the Inspection Reports should be sent to the permittee in
a timely manner except when formal enforcement procedures are under-
way. In this instance, the case attorney will direct any disclosure
of data.
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tate Relationships
EPA overviews the State inspection program through a combination
of independent and joint inspections as well as periodic review of
inspection reports and files. In order to carry this out, the
Annual Inspection °lans are negotiated between EPA and each State
in accordance with the Guidance on Annual State/EPA Inspection Plans.
Joint inspections will be negotiated as part of each Annual Inspection
Plan. The Plan also includes inspection priorities and nix based
on the Annual Operating Gjidance•priorities and the workload Model
recommended mix. The Annual Inspection ^lans should establish
thac a quarterly list of candidates for inspections- will be developed
within thirty days prior to each quarter. The quarterly list
should contain names of major and PL92-5DO minor facilities to be
inspected and the estimated number of other inspections to be
conducted, grouped by inspection type and/of facility category.
Annual Inspection Plans should be part of the annual $10n grant
agreement or the State/EPA Agreement. To the degree that inspection
plans are a part of the S106 process, inspection commitments and
Annual State/EPA Inspection Plans may be jointly reviewed during
mid-year and end-of-the-year program reviews.
The review of the inspection program should be part of the NPDES
program review, and will be based on the Annual Guidance for Oversight
of the NPDES Programs.
The Annual State/EPA Inspection Plan will contain procedures for
communications between EPA and the State on conducting NPDES
inspections within a given State. The detailed requirement for.
Annual State/EPA Compliance Inspection Plans follows this Strategy,
as a separate document entitled "Guidance for Preparing Annual State/
EPA Compliance Inspection Plans."
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GUIDANCE FOR PREPARING ANNUAL
STATE/EPA COMPLIANCE INSPECTION! PLANS
Background
EPA has routinely negotiated agreements with States for conducting
NPDSS Compliance Inspections. The work plans based on these
agreements are used to coordinate State/F.PA activities and workflows
within each State, to manage resources, and to assure that program
needs are met to the fullest extent possible. Detailed planning is
necessary because States conduct the majority of the compliance
inspect ions.
An evaluation of EPA Regional Inspection Programs in 1983 showed
that the current planning documents lack specific details that, are
needed to coordinate inspection activities, to manage resources,
and to avoid duplications. -The evaluation concluded that guidance
was needed .to help Regions and States prepare an annual State/EPA
Compliance Inspection Plan (Plan).
This guidance will help EPA and State Managers implement the planning
requirements of the Compliance Inspection Strategy by: 1) describing
the components of the Plan? 2) providing guidance for negotiating
the Plan; and 3) providing guidance on evaluating the results
achieved by the Plan. This guidance does not apply to procedures
for carrying out inspections in support of criminal investigations.
Purpose
The purpose of the Plan is to-: 1) provide a basis for achieving
National NPDES Program goals and objectives; and 2) coordinate and
improve the use of compliance inspection resources in accordance
with the Guidance for Oversight of NPDES Programs.
The Plan should contain detailed procedures for communications
between the Region and the State concerning the conduct of the
NPDES inspection program in the given State.
Content
EPA identifies major NPDES program objectives as part of the Agency's
annual operating guidance. The Plan should provide detailed
procedures and specific workload projections to support these
national objectives. In addition to the national objectives, the
Plan should allow the State and EPA to address specific local and
regional concerns.
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- 9 -
Each Plan should establish annually the number and mix of inspections
by type for both the State and Region. The type of inspection should
be consistent with definitions and procedures outlined in the Agency's
June 1984 NPDES Compliance Inspection Manual. The Plan should contain
criteria for selecting inspection candidates for the appropriate mix
of routine and special inspections. Flach Plan will be oreoared for an
entire year and will account for the State and EPA resources devoted
to \PDES co-.pliance inspections. A quarterly list of facilities that
are to be inspected should be established at least 30 days prior to the
beginning of the quarter. The quarterly list, should contain nanes of
major and PL 92-500 minor facilities to be inspected and the estimated
number of other inspections to be conducted that are grouped by
inspection type and/or facility category. The status of the Plan
should be assessed at established intervals throughout the year.
EPA annually establishes a recommended mix of inspection types
through the budget workload model. The model generates a mix that
reflects the level of EPA resources, the number of permittees to
be inspected, and the emphasis of that National program on various
groups of permittees during the budget year. This recommended mix
should be used as a guide in preparing the Plan to establish coverage.
and to meet the priorities of each State.
In order to avoid advance notification to the permittee, specific
dates of inspections should not be included in the Plan. The Plan
should include a procedure for providing notice to the State prior
to inspection where such notice will not jeopardize the purpose of
the inspection.
The Plan should specify procedures, timeframes, and formats for
producing inspection reports and entering data into PCS. Whenever
the State and Region participate in a joint inspection, only the
lead agency will complete the inspection form to account for the
•inspection. The agreement to conduct joint inspections is to be
included in the Plan.
The Plan should specify procedures and timeframes by which the
inspecting agency (either the Region or the State) will provide
copies of inspection reports to the agency that has lead
responsibility for NPDES program enforcement.
Development
The Plan should cover inspection activity as specified in the
Agency's Annual Operating Guidance. The Plan should be prepared
as part of the annual Region/State planning process and it should
be incorporated into the S106 Plan or State/FlPA Agreement. The
Plan should be in p-lace for each State no later than October 1,
or the beginning of the State fiscal year.
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- 10 -
Approva 1
The Plan will be cosigned for approval by the State and Regional
program directors, who have the respective responsibility for
authorizing the resources needed to carry out the plan. In the
Region, this is typically the Water Management Division Director
r! tat i on
Ongoing coordination between the State and Region is exnected during
implementation. [The Re.qion and State should have procedures to
establish quarterly a list of. faciliti-es that are to be inspected,
and to assess the status of the annual Plan at established intervals
throughout the year.l The Region should also agree to provide prior
notice to the State before conducting joint or independent
inspections, and to supply the State with at least semi-annual
reports of the Region's findings (mid-year and . end-of-year ) ; the
State should be apprised of major problems as soon as they are
discovered. The Plan may be modified as needed to ensure that it
reflects changing conditions throughout the year.
Evaluation of Results
The Plan should contain procedures for ongoing evaluation of the
State inspection program, including periodic random audits of
inspection reports and case files. In addition to ongoing evaluation
the Region will conduct at least an annual audit of the State
inspection records and management system. Review of the inspection
program should be part of the NPDFS program review process, and the
level and frequency .of overview should be tailored to the State's
overall performance in the inspection activity category.
SIS
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Append i x
f !
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Item A
REFERENCE?
1. Compliance Biomonitoring Inspection Manual (MCD-^2, EPA, 1931)
2. Compliance Evaluation Inspection Manual (MCD-75, EPA, 19^1)
3. Compliance Evaluation and Troubleshooting at Municipal
wastewater Treatment Facilities (EPA-430/9-~R-no1)
4. Compliance Flow Measurement Inspection '-'arvual (MCD-77, E?A,-1Q01!
5. Compliance Sampling Inspection Manual (MCD-51, EPA, 1979)
5. Model State Water Monitoring Program (EPA-44D/9-74-002)
7. Multi-Media Compliance Audit Inspection Manual (EPA-297/2-R3-002)
8. Performance Audit Inspection Manual (EPA-330/1-79-004)
9. NPDES Co.mpliance Inspection Manual (EPA/OWE P- 6/84 )
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Item B
NPOES INSPECTION DEFINITIONS
Compliance Evaluation Inspection (CEI)
A CEI is a nonsampling inspection designed to verify permittee
compliance with applicable permit self-monitoring requirements
and compliance schedules. This inspection is based on record
reviews and visual observations and evaluations of. the treatment
facilities, effluents, receiving waters, etc. The CEI is used for
both chemical and biological self-monitoring programs. The CEI
forms the basis for all other inspection types except the
Reconnaissance Inspection. As the CEI does not involve sampling,
it is frequently used as a "routine" inspection.
The CEI is appropriate for routine inspections of facilities to
overview construction schedules, general plant operations and
maintenance, record-keeping, and sampling. As the basic element
of all NPDES inspection activity the evaluation can also concentrate
on program areas such as pretreatment and discharge monitorirtg
report quality assurance. The pricing factor for the CEI is 3
days for a major and 2 days for a minor permittee.
Comnliance Samolinq Insoection (CSI)
During the CSI, representative samples of a permittee's influent
and/or effluent are collected. Samples that are required by the
permit are also obtained. Chemical analyses are then performed
and the results are used 1) to verify the accuracy of the permittee
self monitoring program and report and 2) to determine the quantity
and quality of effluents, 3) to develop permits, and 4) where
appropriate, as evidence for enforcement proceedings. The chemical
analysis for the CSI is directed to pollutants which do not require
expensive and elaborate procedures such as those involved in Gas
Chromatograph-Mass Spectrophotometry. Other pollutants are covered
by the Toxics Sampling Inspection. In addition to the above tasks,
a CSI incorporates the same objectives and tasks as a CFI. The.
pricing factor for a CSI is 30 days for a non-municipal and 16 days
for a municipal permittee with the resource difference due to the
higher number of outfalls at a typical non-municipal facility.
The CSI inspection, because it is more resource intensive, must
have a more limited use. The CSI is most often conducted when
there is "cause" to suspect major violations of permit requirements
and effluent limits.
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Performance Audit Inspection (PAD
The PAI is used to evaluate the permittee's self-monitoring prograr
The PAI incorporates the same objectives and tasks as a'CEI, but ir.
a PAI, the laboratory procedures, data quality, and data handling
are examined in greater depth. In a PAI, the inspector actually
observes the permittee going through all of the steps on the self-
mop. itoriog process from sample collection and flow measurement,
through lab analyses, data work-up and reporting. Also, the PAI
inspector may leave a check sample for the permittee to analyze.
The PAI is T.cre resource intensive than a CE I, but less than a CSI
because sample collection and analyses by PPA or the State are not
included.
The pricing factor for the PAI is 12 days. The PAI is used to
follow up known or suspected problems with permittee self-moni tor ir.g
such as DM* OA failures or inadequate DMR data..
Conoliance Ricmonitor ing Inspection (CRI)
A CBI evaluates the biological effect of a permittee's effluent
discharge(s) on test organisms through the utilization of acute
toxicity bioassay techniques. In addition, this inspection includes
the same objectives and tasks as CEI.
The pricing factor depends on method of exposure. The static test
requires 6 work days and an on-site flow through bioassay requires
30 work days. The CBI should also be directed toward toxic problem
It is most likely to be useful for non-municipals and municipals
with a large proportion of industrial waste discharging into water
quality limited stream segments. For States which have water
quality standards for acute toxicity (e.g., Alabama, Mew Jersey),
the results are a direct determination of compliance with the
standard. (In addition to these methods, chronic toxicity methods
are being developed.)
Toxics Sampling Inspection (XSI)
The XSI has the same objectives as a conventional CSI, however, it
places increased emphasis on toxic substances (i.e. the priority
pollutants) other than heavy metals, phenols and cyanide, which
are typically included in a CSI. Increased resources over a CSI
are needed because highly sophisticated techniques are used to
sample and analyze for toxic pollutants. The pricing factor for
XSI is 35 days. The XSI is usually reserved for toxics problems at
non-municipal facilities. These problems may be noncompliance,
permit reissuance, or water quality related.
/
'•3
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Diagnostic Inspection (PI)
The DI focuses primarily on municipal POT'.-." s that are not in
compliance with their permit requirements. The purpose of the D]
can be either to assist those POTWs without self-diagnostic
capability or to evaluate cajses for noncompliance in support cf
enforcement actions. In either case an objective of: the HI is t'
identify causes for nonco^p 1 iance which can be corrects: i r. a
relatively short period of time and without large capital
expenditures. The DI will also have as an objective the
identification of major plant deficiencies in operation, design,
and/or construction. The pricing factor for a DI is Ifi days.
Reconnaissance Inspection (RI)
The RI is used to obtain a preliminary overview of a permittee's .
compliance program. The inspector performs a brief visual
inspection of the permittee's treatment facility/ effluents
and receiving waters. The RI utilizes the inspector's experience
and judgment to quickly summarize a permittee's compliance program,
The objective of the RI is to expand inspection coverage without
increasing inspection resources. It is the briefest of all NPHE?
inspections. The pricing factor for an RI is one day.
Lecal .SuoDort Inspection (LSI)
The LSI is a resource intensive inspection conducted when an
enforcement problem is identified as a result of a routine
inspection or a complaint. For an LSI, the appropriate resources
a-re assembled to effectively deal with a specific enforcement
problem, so there is no established pricing factor.
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NPDES INSPECTION USES
Item C
Selection Criteria
Routine compliance verification and
followuo on specific problems (i.e.
schedules, OA deficiencies, failure
to report).
Resolve permittee chronic self-
monitoring problems and laboratory
de f iciencies.
Identify POTW compliance deficiencies
that can be resolved quickly at limited
cost.
Expand regulatory presence with
limited inspection resources to verify
basic compliance data.
Sample conventional pollutants to
verify effluent violations in support
of. enforcement and/or to support
permit development.
Samole priority pollutants to verify
effluent violations in support of
enforcement and/or to support
permit development.
Screen for effluent acute toxicity in
.lieu of sampling for priority pollutants
and/or verify permit limits or water
quality standards for acute toxicity.
Provide intensive field investigation,
technical analysis, and expert witness
capability to support litigation, often
as the result of routine inspection or
complaint.
r-,0 *
Inspection Type
CEI
(Comoliance Evaluati-
PAI
(Performance Audit)
DI
(Diagnostic)
RI
(Reconnaissance)
CSI
(Compliance Sampling)
XSI
(Toxics Sampling)
CRT
(Compliance 8 iomoni tor i r.g )
LSI
(Legal Support)
* Any of the inspection types with the exception of the'Reconnaissance
Inspection may be u.sed for pretreatment program verification and for
direct determination of industrial user compliance with categorical
pretreatment standards.
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I C c m D
tf% «—
*V|^7 ^MHH
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DA
a *—l
N
PDES
VVnsitrn
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INSTRUCTIONS
Section A: National Data System Coding (i.e.. PCS)
Column 1: Transaction Code: Use N, C. or D for New. Change, or Delete. All inspections will
unless there is an error in the data entered.
Columns 3-11: NPDES Permit No. Enter the facility's NPDES permit number. (Use the Remarks
columns to record the State permit number, if necessary.)
Columns 12-17: Inspection Date. Insert the dote entry was made into the facility. Use the
year/mcnth/day format (e.g., 32/06/30 = June 30, 1 932).
Column 1 S: Inspection Type. Use one of the codes listed below to describe the type of inspection:
A — Performance Audit E — Corps of Engrs Inspection S — Compliance Sampling
B — Biomonitoring L — Enforcement Case Support X — Toxic Sampling
C — Compliance Evaluation P — Pretreatment
D — Diagnostic R — Reconnaissance Inspection
.Column 1 9: Inspector Code. Use one of the codes listed below to describe the lead agency in the
inspection.
C — Contractor or Other Inspectors (Specify in N — NEIC Inspectors
Remarks columns) R— EPA Regional Inspector
E — Corps of Engineers S — State Inspector
J — Joint EPA/State Inspectors—EPA lead T — Joint State/EPA Inspectors—State lead
Column 20: Facility Type. Use one of the codes below to describe the facility.
1 — Municipal. Publicly Owned Treatment Works (POTWs) with 1 972 Standard Industrial Code
(SIC) 4952.
2 — Industrial. Other than municipal, agricultural, and Federal facilities.
3 —Agricultural. Facilities classified with 1 972 SIC 0111 to 0971.
4 — Federal. Facilities identified as Federal by the EPA Regional Office.
Columns 21 -66: Remarks. These columns are reserved for remarks at the discretion of the Region.
Column 70: Facility Evaluation Rating. Use information gathered during the inspect ion (regard! ess
of inspection type) to evaluate the quality of the facility self -monitor ing program. Grade the program
using a scale of 1 to 5 with a score of 5 being used for very reliable self-monitoring programs, 3 being
satisfactory, and 1 being used for very unreliable programs.
Column 71: Biomonitoring Information. Enter D for static test ing. Enter F for flow through testing.
Enter N for no biomonitoring.
Column 72: Quality Assurance Data Inspection. Enter Q if the inspection was conducted as
;o',!owup on quality assurance sample results. Enter N otherwise.
Columns 73-80: These columns are reserved for regionally defined information.
Section B: Facility Data
This section is self-explanatory.
Section C: Areas Evaluated During Inspection
Indicate findings (S, M, U, or N) in the appropriate box. Use Section D and additional sheets as
necessary. Support the findings, as necessary, in a brief narrative report. Use the headings given on
the report form (e.g.. Permit, 'Records/Reports) when discussing the areas evaluated during the
inspection. The heading marked "Other" may include activities such as SPCC, BMP's, and multime-
dia concerns.
Section D: Summary of Findings/Comments
Briefly summarize the inspection findings. This summary should abstract the pertinent inspe^^n
findings, not replace the narrative report. Reference a list of attachments, such as completed
checklists taken from the NPDES Compliance Inspection Manuals and pretreatment guidance
documents, including effluent data when sampling has been done. Use extra sheets as necessary.
EPA Form 3560-3 (Rev. 3-85) Reverse
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II.B.9,
"NPDES COMPLIANCE INSPECTION MANUAL", dated January, 1988. Table of
Contents only. Replaces June, 1984 edition.
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EPA
United States
Environmental Protection
Agency
Office of Water
Enforcement and Permits (EN-338)
Washington, O.C. 20460
MAY 1988
Water
NPDES r.
Compliance Inspection
Manual
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TABLE OF CONTENTS
Contents ; Page
List of Tables x1
List of Figures x111
List of Acronyms xv
Chapter One; Introduction
Legal Authority for NPDES Inspections 1-1
Responsibilities of the NPOES Inspector 1-3
Multimedia Concerns In NPOES Permitting and
Inspections . 1-9
Chapter Two; Inspection Procedures
Pre-Inspection Preparation 2-1
Ent ry 2-11
Opening Conference 2-15
Documentation 2-19
Closing Conference 2-29
Inspection Report 2-33
Chapter Three; Recordkeeplng and Reporting
Inspection Authority and Objectives 3-1
Evaluation Procedures 3-3
Verification, Recordkeeping, and Reporting Evaluation
Checklist 3-9
Chapter Four: Facility Site Review
Objectives 4-1
Physical Inspection of the Facility 4-3
Operation and Maintenance Evaluation 4-13
References and Facility Site Review Checklist 4-25
NPDES Inspection Manualfx January 1*88
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Table of Contents
TABLE OF CONTENTS (Continued)
Contents Page
Chapter Five; Sampling
Evaluation of Permittee Sampling Program and Compliance
Sampling 5-1
Sampling Procedures and Techniques 5-3-
References and Permittee Sampling Inspection Checklist .... 5-23
Chapter Six; Flow Measurement
' Evaluation of Permittee's Flow Measurement 6-1
Supplementary Information 6-5
Flow Measurement Compliance 6-29
References and Flow Measurement Inspection Checklist 6-37
Chapter Seven; B1omon1tor1ng
Evaluation of Permittee Self-B1omon1tor1ng Program 7-1
Compliance BlomonltoHng Inspection 7-9
Chapter Eight; Laboratory Quality Assurance
Objectives and Requirements 8-1
Sample Handling Procedures .. 8-3
Laboratory Analyses Techniques Evaluation 8-5.
Quality Assurance and Quality Control 8-9
References and Laboratory Quality Assurance Checklist 8-13
Chapter Nine; Pretreatment
Review of the General Pretreatment Regulations 9-1
Pretreatment Compliance Inspections (PCIs) and Audits 9-19
References 9-25
NPOEs inspection Manual x January 1988
-------
LIST OF TABLES
Table __ Page
F-l Comparison of Inspection Activities with Inspection
Type s
1-1 Responsibilities of the Inspector in the Inspection
Process 1-7
2-1 NPOES-Related Statutes and Regulations 2-7
4-1 Operations and Maintenance Function Evaluation
Questions 4-17
5-1 Volume of Sample Required for Determination of the
Various Constituents of Industrial Wastewater 5-9
5-2 Compositing Methods 5-12
5-3 Required Containers, Preservation Techniques, Holding
Times, and Test Methods 5-13
6-1 Head-Discharge Relationship Formulas for Nonsubmerged
Weirs 6-11
6-2 Discharge of 90° V-Notch Weir - Head Measured
at Weir Plate 6-12
6-3 Minimum and Maximum Recommended Flow Rates for
dpollettl Weirs 6-13
6-4 Minimum and Maximum Recommended Flow Rates for Free
Flow Through Parshall Flumes 6-13
6-5 Free-Flow Values of C and N for Parshall Flume Based
on the Relationship Q » CWHan 6-14
d *
6-6 . Minimum and Maximum Recommended Flow Rates for Free
Flow Through Plasti-Fab Palmer-Bowlus Flumes 6-15
NPDES Inspection ManualxlJanuary 1988
-------
List of Tables
?fD
LIST OF TABLES (Continued)
Table Page"
6-7 Coefficients of Discharge c for VentuM Meters 6-16
6-8 Values of K In Formula for VentuM Meters 6-16
6-9 'Advantages and Disadvantages of Secondary Devices 6-17
7-1 Recommended Species, Test Temperatures, and Life
Stages 7-5
9-1 Summary of the General Pretreatment Regulations 9-9
9-2 Summary Status of National Categorical Pretreatment
Standards: Milestone Dates 9-14
NPDE5 Inspection Manual x*' January
-------
LIST OF FIGURES
Figure \ Page
2-1 Sample 308 Letter .2-9
2-2 EPA Deficiency Notice Form 2-31
2-3 NPDES Compliance Inspection Report Form 2-37
5-1 Example Chaln-of-Custody Form 5-21
6-1 Profile and Nomenclature of Sharp-Crested Weirs 6-19
6-2 Three Common Types of Sharp-Crested Weirs 6-20
6-3 Flow Rates for 60° and 90° V-Notch Weirs 6-21
6-4 Nomograph for Capacity of Rectangular Weirs 6-22
6-5 Flow Curves for Parshall Flumes 6-23
6-6 Dimensions and Capacities of Parshall Measuring
Flume for Various Throat Widths 6-24
6-7 Effect of Submergence on Parshall Flume Free
Discharge 6-26
6-8 Free Flowing Palmer-Bowlus Flume 6-27
6-9 Configuration and Nomenclature of Venturl Meter 6-27
6-10 Electromagnetic Flowmeter 6-28
6-11 Propeller Flowmeter 6-28
7-1 NPDES Toxldty Test Evaluation Eonm 7-7
NPDES Inspection Manual x111 January 1988
-------
-------
II.B.10.
"Use of the New NPDES Compliance Inspection Form", dated May 14, 1985.
-------
-------
isse;
"
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
?4fflf I 4 IS35
:E Or
WATER
SUBJECT: Use of the Mew MPDES Copliance" Inspection Form
FROM: Rebecoa^tt. Hanmer, Director
Office of Water Enforcement and Permits (E.N-^335)
TO: Regional Water Management Division Directors
Regional Environmental Services Division Directors
State Program Directors
EPA has prepared and obtained OMB authorization for the ' .
attached EPA Form 3560-3 (Revised 3-85). Users of the inspection
form should be aware of the following information.
Purpose; The purpose of shortening Form 3560-3 is not to reduce
the quantity and quality of data collected during inspections, hut
is to provide flexibility to Regions and States in the reporting
formats they use. EPA Form 3560-3 includes only the most basic
points of information necessary for the Permits Compliance System
(PCS) national data base. States and Regions will prepare more
comprehensive narrative reports on the findings from the inspections
and States may use their own detailed inspection forms in addition
to the Form 3560-3, for NPDES inspections.
Required Use; The Form 3560-3 must be included in NPDES inspection
reports and the information must be entered into PCS to receive
credit in EPA's Strategic Planning and Management System (SPMS).
However, where a State enters data directly into PCS, the State
may use an equivalent form if it contains at least the same data
elements as Form 3560-3.
Status of Old Form; The new inspection form essentially replaces
the first page of the old form. The Regions and States, as they
wish, may still utilize parts of the old form, specifically pages
2, 3, and 4, until supplies are exhausted. The old form will not
be reprinted when the existing supplies are gone.
-------
Guidance on Preparing Inspection Reports; In addition to
instructions on the form, Regions and States should consult the
Compliance Inspection Manual (June 1984) for detailed guidance
on preparing inspection reports (pp. 2-27 to 2-30) and for use
of the appropriate checklists for covering subject areas investi-
gated during an inspection (pp. 3-9 to 11; 4-24 to 25; 5-22;
6-20 to 21; 7-8; and 8-Q).
Reports Distribution; The shortened forn is a single page with
no duplicates or carbons, whereas the old form came in color
coded multicopy pressure sensitive four-part sets. To satisfy
the needs of distribution, a completed original of the new form
and the attachments will need to be reproduced as needed. This
reduces waste of extra unneeded copies and improves utility of
the form in the field. ..
Availability of New Form; The new form was p'rinted and distributed
to Regions in April 1985. The forms are available from the Forms
Officer in each Region or from:
EPA, Distribution and Warehousing
Wing G; Room 207
Research Triangle Park, NC 27711
Length of the OMB Approval; The new form indicates approval by
OMB expires on July 31, 1985. However, we have been assured/
that approval will be extended through 198fi, .when it will be
necessary to have the form reapproved.
Any questions about the new form may be directed to Gary Polvi
(FTS/202 475-8318) or Virginia Lathrop (PTS/202 475-8299) in the
Water Enforcement Division (EN-338), Washington, D.C. 20460.
Attachment
cc: Regional NPDES Inspection
Program Managers (WMD and ESD)
-------
EDA
a
Washington. 0 C. 20400
I\1PDE$ Compliance Inspection Report
Item I)
form /*;»prov(.'O
OMO No 2C40-CCC3
i EXDIM.-S 7-21 -55
Section A: National Oot.i System Codmn
rar.saet.-en Code NPDES
i! i 25. 3 ' ! ! ! ||
yr/mo/day
izi I ! I I I h?
Inspection Type Inspector Fac'Typ»
! I
Remarks
i ! j ! ! ! I I : ! !
Fac:l.-:v ;•, jmaticn nanng
Bl
QA
7V
72
73 i i 74
Rcservco-
75 :
•30
Section 8: Facility D.ita
i\a.-ne
= n:rv"meLJ AMU
bxit Time/ Date
Ex::ranon Date
Titleis)
P.-.one i.ois/
Name. Acc.-ess o: nesponsoie Ginciai
Title
Phone Mo.
Contactea
CD Yes D
Section C: Areas Evaluated During Inspection
(S - Satisfactory. M = Marginal. U = Unsatisfactory. N = Not Evaluated)
j r e r m 11
! Records/Reports
i Facility Site Review
Flow Measurement
Laboratory
Effluent/Receiving Waters
Pretreatment
Compliance Schedules
Self-Monitoring Program
; Operations & Maintenance
Sludge Disposal
Other:
Section D: Summary of Findinqs/Comments lAnacli ad>.'itionji,st>ecrs if necessary)
Name(s) and Signatures of Inspector(s)
Agency/Of fice/Telepnone
Dale
Signature ot Reviewer
Agency/Office
O.ite
Heouljtorv Office Use Only
Odtc
iiJrce St.itus
I J NoncoTipi^nc
EPA Form 2560-3 (Rev. 3-85) Prc-v.ous ftar:,0ns are cusoiete.
-------
INSTRUCTIONS
Section A: National Data System Coding (i.e.. PCS)
Column 1 .'Transaction Code: UseN.C, or D for New, Change, or Delete. All inspections will b
unless there is an error in the data entered.
Columns 3-11: NPDES Permit No. Enter the facility's NPDES permit number. (Use the Remarr.s
columns to record the Slate permit number, if necessary.)
Columns 12-17: Inspection Date. Insert the date entry was made into the facility. Use the
year/ month/day format (e.g., 82/05/30 = June 30, 1 982).
Column 1 8: Inspection Type. Use one of the codes listed below to describe the type of inspection:
A — Performance Audit E — Corps of Ergrs Inspection S — Compliance Sampling
B — Biomonitoring L—Enforcement Case Support X — Toxic Sampling
C — Compliance Evaluation P — Pretreatment
D — Diagnostic R — Reconnaissance Inspection
Column 1 9: Inspector Code. Use one of the codes listed below to describe the lead agency in the
inspection.
C — Contractor or Other Inspectors (Specify in N — NEfC Inspectors
Remarks columns) . R — EPA Regional Inspector
E — Corps of Engineers S — State Inspector
J — Joint EPA/State Inspectors—EPA lead T — Joint State/EPA Inspectors—State lead
Column 20: Facility Type. Use one of the codes below to describe the facility.
1 — Municipal. Publicly Owned Treatment Works (POTWs) with 1 972 Standard Industrial Code
(SIC) 4952.
2 — Industrial. Other than municipal, agricultural, and Federal facilities.
3 — Agricultural. Facilities classified with 1 972 SIC 0111 ,to 0971.
4 — Federal. Facilities identified as Federal by the EPA Regional Office.
Columns 21-66: Remarks. These columns are reserved for remarks at the discretion of the Region.
Column 70: Facility Evaluation Rating. Use information gathered during the inspection "(regardless
of inspection type) to evaluate t he quality of the facility self- monitor ing program. Grade the prog ram
using a scale of 1 to 5 with a score of 5 being used for very reliable self-monitoring programs, 3 being
satisfactory, and 1 being used -for very unreliable programs.
Column 71: Biomonitoring Information. Enter D for static testing. Enter F for flow through testing.
Enter N for no biomonitoring.
Column 72: Quality Assurance Data Inspection. Enter Q if the inspection was conducted as
:: Howup on quality assurance sample results. Enter N otherwise.
Columns 73-80: These columns are reserved for regionally defined information.
Section B: Facility Data
This section is self-explanatory.
Section C: Areas Evaluated During Inspection
Indicate findings (S, M, U, or N) in the appropriate box. Use Section D and additional sheets as
necessary. Support the findings, as necessary, in a brief narrative report. Use the headings given on
the report form (e.g.. Permit, Records/Reports) when discussing the areas evaluated during the
inspection. The heading marked "Other" may include activities such as SPCC, BMP's, and multime-
dia concerns.
Section D: Summary of Findings/Comments
Briefly summarize the inspection findings. This summary should abstract the pertinent inspe^^P">
findings, not replace the narrative report. Reference a list of attachments, sucn as completed
checklists taken from the NPDES Compliance Inspection Manuals and pretreatment guidance
documents, including effluent data when sampling has been done. Use extra sheets ns necessary.
EPA Form 3560-3 (Rev. 3-85) Reverse
-------
II.B.ll
Pretreatment Compliance and Audit Manual for Approval Authorities. See
VI.B.24.
-------
-------
II.B.12.
# "NPDES Compliance Flow Measurement Manual", dated September, 1981. Table
of Contents only.
-------
-------
United StatM
Protection
Agency
Office of Wrar Enforcement and
Permits Enforcement Oiviwon (EN-338)
Wvhlngton, DC 20480
S«pt«mb*r 1981
Witcr
vvEPA
NPDES
Compliance Flow
Measurement Manual
MCD - 77
-------
NPDES COMPLIANCE FLOW MEASUREMENT MANUAL
U.S. Environmental Protection Agency
September, 1981
by:
David L. Guthtle, P.E.
Office of Water Enforcement and Permits
Enforcement Division
Compliance Branch
-------
HPDES COMPLIANCE FLOW MEASUREMENT MANUAL
Table of Contents
Page
Disclaimer ii
Acknowledgement iii
Table of Contents iv
List of Illustrations vii
List of Tables ix
Fo rcwo rd 1
Introduction 3
Basic Methods 10
Weighing the Discharge 10
Volumetric Methods 11
Sump Pumps 13
Orifice Buckets 15
Weirs 17
Sharp Crested 17
V-Notch 19
Rectangular - 22
Cipolletti 27
Other Weirs 30
Submerged Weir Conditions 32
Correcting for Velocity of Approach 34
Weir Inspections 36
Broad Crested 37
iv
-------
Table of Content*
(Continued)
Page
Flumes ._ 39
Parshall 39
Palme r-Bowlus 48
Pitoc Tubes 51
Methods Used To Measure Water Height (Head) 56
Stevens Meters or Drum Recorders 56
Manning Dippers 58
Belfort Liquid Level Recorders •••• 61
Sonics 63
Gauges 65
Scow 65
Bubble rs 67
Charts/Calibrations 71
Energy Grade Line Calculations 71
Orifices «. 76
Nozzles 79
Ventu ri Flowmeters 84
Open-Pipe Methods 87
California Pipe Method 87
Purdue Method 90
y Kv '
•~—\ i '•
/LA-'-
-------
Table of Contents
(Continued)
Open Channel Measurements 93
Flow From Vertical Pipes 93
Equations 93
Velocity-Area Method 100
St ream Gauging 105
Current Meters 106
Dilution Methods and T racers Ill
Dilution 112
Slug vs. Constant-Rate Injection 112
Exotic Methods 115
Electromagnetic Flowmeter 115
Acoustic Flovmeters 115
Electrical Methods 119
Summary 120
Appendix
vi
-------
List of Illustrations
Figure Page
1. Sharp-Crested Weir Nomenclature 18
2. Three Common Types of Sharp-Crested Weirs 20
3. Flow Rates for 60° and 90° V-Notch Weirs 23
4. Discharge Curve for 90° V-Notch Weir 24
5. Suppressed Rectangular Weir 26
6. Nomograph for Capacity of Rectangular Weir 28
7. Discharge Curve for 10" Rectangular Weir 29
8. Discharge Rate vs. Weir Head for Clpollettl Weir 31
9. Submerged Weir Calculations/Ratios 33
10. Typical Suppressed Weir in a Flume Drop 40,
11. Configuration for a Standard Parshall Flume 41
12. Parshall Flume Discharge Curves . 44
13. Typical Flume Submergence Flow Rate 45
14. Parshall Flumes - Typical Installation and Capacity Curves 46
15. Discharge Curve for a 6" Parshall Flume 47
16. Typical Installation of a Temporary Flume 49
17. Pltot Tube Measures Velocity Head 52
18. Graph for Converting Velocity Head to Velocity 54
19. Horizontal Drum Water-Stage Recorder 57
20. The Manning Dipper™ 59
21. Typical Installation of a Manning Dipper™ 60
22. Belfort Liquid Level Recorder 62
23. System Layout of a Sonic Water Level Meter 64
24. Hook and Staff Gauges 66
-------
List of Illustrations
(Continued)
Figure - Page
25. Typical Installation of a Scow 68
26. Typical Installation of a Bubbler. 69
27. Typical Strip Chart Recorder and Strip Chart 72
28. Surcharging Sewer Schematic 75
29. Orifice Shapes and Their Coefficients 77
30. Flow Nozzle in Pipe 80
31. Kennison Open Flow Nozzle 83
32. Venturi Meter 85
33. California Pipe Flow Method 89
34. Discharge Rate vs. Flow Depth for California Pipes 91
35. Purdue Method of Measuring Flow from a Horizontal Pipe 92
36. Approximating Flow From Vertical Pipes 94
37. Hydraulic Elements for Circular Sewers 97
38. Depth Ratio vs. Area Ratio 98
39. Nomograph Based on Manning's Formula 99
40. Determining Mean Velocities 103
41. Assembly Drawing of Price Type AA Current Meter 107
42. Type "A" Crane and Current Meter Assembly 108
43. Ott-Type Horizontal Axis Current Meter 110
44. Constant Rate and Slug Injection Methods 113
45. Typical Magnetic Flow Meter... 116
46. Ultrasonic Flowmeter 118
-------
List of Tables
Table Page
1. Flow Measurement Methods 9
2. Volumetric Formulas 11
3. Values of C for V-Notch Weirs 21
4. Exponents in the Free Discharge Equation for Submerged Weirs 34
5. Calculating Velocity of Approach for a Sharp-Crested Weir 35
6. Advantages and Disadvantages of Parshall Flumes. 42
7. Submergence Ration vs Throat Size In Parshall Flumes 42
8. Flume Checklist SO
9. Features of the Belfort Liquid Level Recorder 61
10. Values of n to used with the Manning Equation 96
/
11. Values of K and K for Circular Channels 101
12. Comparison of Merits of the Dilution Method Ill
ix
-------
II.B.13.
# "Guidelines on Requirements for Exceptions for NPDES Inspector Training",
dated January 28, 1990. Without attachments.
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
~UN 2 8
OFFIC8 OP
WATER
:eptions for
MEMORANDUM
SUBJECT: Guidelines on Requirements for
NPDES Inspector Training
FROM: David N. Lyons P.E., Chie
Enforcement Support Branc
TO: Regional Compliance Branch Chiefs,
Water Management Divisions
. Field Service Branch Chiefs,
Environmental Services Divisions
Regions 1 - X
In compliance with the direction to the Assistant
Administrators in EPA Order 3500.1, on Training and Development for
Compliance Inspectors and Field Investigators, the Enforcement
Division, Office of Water Enforcement and Permits has prepared the
attached Guidelines on Requirements for Exceptions from NPDES
Inspector Training which can be used by supervisors in evaluating
training needs of those individuals conducting, or overseeing the
conducting, NPDES/pretreatment compliance inspections. This guide
establishes a process and offers work sheets and directions to plan
and manage the NPDES Inspector Training Program. We have worked
with members of the NPDES Inspection Materials Work group and the
Agency Inspector Training Advisory Board to develop this final
product. Our objective was to break the Work Sheets into
manageable pieces, a modular form, to allow broader usage. The
goal is to develop an easy to follow guideline to assure that all
inspectors are well grounded in the basics of the program before
performing NPDES inspections independently.
While these guidelines are considered final we continue to
encourage comments on ways to make this a clear and concise
document. We are especially interested in your comments on Work
Sheet #1 and Form A since this portion of the guidelines are
required for compliance with Order 3500.1. Work Sheet #2 is
recommended but not required. Please provide ideas for improvement
or questions to Virginia Lathrop, Enforcement Support Branch,
(EN-338) FTS 475-82f^.
Attachment
-------
-------
GUIDELINES ON REQUIREMENTS FOR EXCEPTIONS TO MINIMUM
NPDES / PRETREATMENT INSPECTOR TRAINING
INTRODUCTIOH
These program specific guidelines are designed to help first
line supervisors and inspectors with NPDES and pretreatment
responsibilities to implement the requirements of EPA Order
3500.1 on Training and Development for Compliance Inspectors and
Field investigators (6/88). The Guide contains: 1) work
.
to be used in documenting existing experience and assessing the
inspector's (or first line supervisor of an inspector) training
needs and whether previous training and experience qualifies for
an exception to NPDES minimum training requirements* ; and 2) a
form to request an exception to the minimum requirements. These
forms are to be filled out by the current or prior supervisor.
Supervisors should review and update all work sheets annually.
Required Work Sheet t 1
EPA Order 3500.1 requires Basic Training (that is the
Fundamentals of Environmental Compliance Inspections and basio
level health and safety course under EPA Order 1440.2) and the
program - specific minimum training (defined by each media office
in a Inspector Training Program Description) . The NPDES Minimum
Training*, includes any Regional workshop, self study or on the
job training (OJT) utilizing the five modules on Introduction to
NPDES Inspections, and the NPDES Compliance Inspection Manual.
This program will develop basic program knowledge and skills
primarily for the new inspector. This is essential to the
development of skills for conducting compliance evaluation
inspection (CEIs) , compliance sampling inspections (CSIs) and
reconnaissance inspections (RIs) .
Completion of Work Sheet #1 is required for all NPDES
Inspectors and their first line supervisors to show compliance
with EPA Order 3500.1. (In order to cut down on verbosity, the
work Sheets and Form will refer to "inspectors", with the intent
of covering "field investigators" and their first line
supervisors as well.) If you answer "yes" in column 1 of this
work sheet, the inspector may be eligible for an exception to the
minimum requirements, and Form A may be used to request one. (The
process for requesting an exception is relevant only to the
minimum training requirements.)
*NPDES Minimum Training requirements are described briefly
in the summary in the Appendix, Page A-3. They are described in
more detail in the.NPDES Inspector Training Program Description,
March, 1989. . if copies are needed please call Virginia
Lathrop, OWEP (EN-338), FTS/475-8299.
-------
- 2 -
Work ShMte i 2
Work sheet f 2 addresses NPDES Skills Development and
Specialized training. Although the Order does not require a
specific curricula of training as a prerequisite to inspectors
leading or independently conducting more specialized and skill
demanding inspections, it is obvious that some form of training
is essential to develop advanced skills for conducting such
technically oriented field investigations such as toxic sampling
inspections (XSZ), compliance biomonitoring (CBI), pretreatment
compliance (PCI), performance audit (PAI), diagnostic (DI), or
other specialized inspections. Therefore Work Sheet I 2 is
offered as another planning tool for the Regional Offices.
-------
WORK SHEET I 1
-------
-------
GUIDELINES FOR EXCEPTIONS TO MINIMUM NPDES / PRETREATMENT
INSPECTOR TRAINING - WORK SHEET f 1 (REQUIRED)
A. Background
Employee Name
New [ ] Experienced [ ]
Organization/ Program Assignment
Inspector [ ] Supervisor [ ]
A.I Scope of Training Program: This training program will prepare
the employee to lead or independently conduct the following types
of inspections. [Check all that apply.]
Compliance Evaluation Inspection (CEI) '
Compliance Sampling Inspection (CSI)
Reconnaissance Inspection (PI)
A. 2
Tun** nf Trainim
Applica-
bility
(Yes/No)
Fundamentals of
Environmental Compli-
ance Inspections
A.2.b Health and
Safety
f n
1. 1440.2
- Basic
— Advanced
2. 1440.3
Previous Tmg./
Exp. Satisfies
Req'mts
(Yes/No)
Training
Completion
Planned Actual
Date
A.3 Minimum NPEES-Specific Training*
A.3.a Self study (to prepare for CEI, RI and CSI)
See definition, page 2 of the Introduction.
\C
-------
- 2 -
WOFK SHEET * 1
PREVIOUS IRONPC/
EXPERIENCE SATISFIES TRAINING
RBQUIREMQnS COMPLETION ACTUAL
_ (Yes/Nb) TARGET COMPLETION
NFDES Ccnpliance Inspection DATE DATE
Manual (1988) with self
stud/ guides, policy
guidance, regulations
& dean Water Act (Yes/No) ; _ _
A.3.b On the Job (GOT)
COT - Office
1) Ability to perform file
review, prepare a plan (Yes/Nb) _ _
for coordination
with the state.
2) Ability to prepare clear
accurate, concise reports (Yes/No)
& an follow-u.
any follow-up.
3) If a supervisor, ability to
effectively plan, coordinate
& schedule inspections (Yes/No)
GOT - Field
4) Ability in the field to
evaluate Permittee's flow
measurement, sanpling, & (Yes/No)
analytical technique.
5) Ability to use
skills (Balance of assert-
iveness and tact) . (Yes/No)
-------
- 3 -
WORK SHEET I 1
PREVIOUS TRAPTDJG/
EXPERIENCE SATISFIES TRAINING
REQUIREMENTS OCMPLETICN ACTUAL
(Yes/NO) TARCZT CCMPLETICN
DATE DATE
6) Successfully completed at
least 4 non-sanpling insp.
completed with inspector as
asst to lead inspector (CEIs). (Yes/No)
7) At least 2 sampling inspections
ocopletfid with inspector performing
all functions correctly with
oversight of an experienced (Yes/No)
inspector. (Where inspector (Yes/No) -
is to conduct CSI)
A.3.c Successfully completed Regional Class/Workshop - Introduction to NFDES
Inspections (using Introductory NPCES Inspector Training Modules).
1) Overview (Yes/No)
2) Sanpling (Yes/No)
3) Lab Analysis (Yes/No)
4) Legal Issues (Yes/No)
5) Bicnonitoring (Yes/No)
A.4 Additional Courses
Any
noodod as in wastewater
treatnent, chemistry, etc. OCMPIETICM ACTUAL
TARGET CCKPLETIGN
SUBJECT DATE DATE
Signature of First Line Supervisor • Gate
-------
- 4 -
WORK SHEET I 1 - IMJlMJUiJXlS - INSPECTOR TRAINING fCBK SHEET
This work sheet developed by each Enforcement Ptuuiam Office should oust be
completed for each inspector to show compliance with EPA Order 3500.1. This work
sheet should be used to decide: 1) what training is applicable to the inspector
or first-line supervisor; 2) whether previous training satisfies the requirement;
and 3) if it does not, when training is planned and is completed. A separate
form is available to document the request for an exception.
A.
1. Enter employee name, organization, and jiiviijMitt assignment.
2. Check whether the individual is new or experienced as defined by EPA Order
3500.1; also check whether the individual is an inspector or supervisor, and
whether or not a new employee. Definitions of new and •experienced inspector are
found in EPA Order 3500.1. Specifically those definitions are:
New Inspector - Individuals newly employed by EPA after June 29, 1988
regardless of previous training in and experience leading, (or conducting
independently) environmental compliance inspections, CR
- Individuals rehired by EPA or transferred within EPA
after June 29, 1988 with no previous training in and experience leading, (or
conducting independently) environmental compliance inspections/field investiga-
tions.
Experienced Inspector - Individuals who were employed by EPA on June 29,
1988 and who have previous training in and experience leading, (or conducting
independently) environmental compliance inspections/ field investigations in any
one of EPA's compliance and enforcement programs.
A. Under Scope of Training, list the types of inspections.
A.I
A.l Basic Curriculum - Fundamentals of Environmental
Compliance Inspactii
1. Applicability; The Fundamentals Course applies to all inspectors and first-
line supervisors; therefore, mark column 2 yes.
2. Previous TriJJllnq/Btperi«fnn» wjsfies th«» n**yi< foment; Answer yes in
column 3, if the inspector or first-line supervisor has demonstrated previous
training and/or experience comnensurate with the objectives of the course. If
no, complete column 4. .
Refer to Ger**T-^l QiidancB on Eyg^p^i<^ns up^r 7'.".'Licn 7 it ERA OF**1* 3500 . l
Part in. paoes 4-9. for the principles to follow in assessing previous
training and/or experience, and examples that satisfy the course objectives.
-------
- 5 -
WOFK SHEET # 1 - INSTMXT1CNS
Course Ohrieetives; Tb develop in inspectors and first line supervisors:
a. Knowledge of the Agency's compliance and enforcement policy, the enforcement
process, and the roles inspectors play in compliance monitoring and case
development;
b. Knowledge of the extent and limitations of ERA'S legal authorities to enter
and inspect facilities;
c. Knowledge of evidentiary requirements and the procedures designed to assure
that data collected on an inspection will be admissible in court;
d. Knowledge of good work practices related to planning and conducting field
inspections, including technical and administrative subjects \, and communic-
ations skills;
e. Knowledge of the requirements of a good quality inspection report; and
f. Knowledge of how to prepare for and participate in enforcement pin miiljnjg
such as settlement negotiations, hearings, and trials.
3. Training Completion: If the inspector is not qualified for an exception,
then establish a target date in column 4 for training to be completed. After the
training is finished, then record the actual date it was completed.
The Office of Water Enforcement and Permits strongly believes that all
inspectors should receive the Agency Course, "Fundamentals of Environmental
Compliance Inspections,1* although experienced inspectors may seek an exception to
this course.
A.2 Health anrij frflfrty TT**"*"? (B* Order 144O.2 and,
if arpllmhle, EE* Order 1440.3)
1. Ar^yi ^^Ullty? ifr* 3Tf>li<7*fr>l^ training depends on the ^rtri^r of the inspec-
tor; one or both health and safety orders may apply. Under EPA Order 1440.2,
the basic-level training applies to all inspectors. Therefore, mark this item
yes in column 2. Other levels of training under 1440.2, intermediate and
advanced, as well as training required under 1440.3 depend oh the types of
hazards the inspector may routinely encounter. Consult Regional guidance or
orders on health and safety to determine which levels apply and mark the work
sheet accordingly.
column 3, consult Regional guidance or the Regional Health and Safety Officer
concerning .uuisea or experience that satisfy the requirements. If no, then
complete column 4.
EPA-approved courses include;
a. Environmental Health and Safety Division (EHSD) Developed Courses
i. Baals Ftelfl 'Activities Safety Training
gflg fa ffrfllth flflfl Safety Training for Field Activities
(Available FY 89)
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- 6 -
WOFK SHEET # 1 - INSTRUCTIONS
b. Office of Emergency and Rpmnrtial Response (CERR) Developed Courses
(Course #165.5)
ii.
(Course 1165.2)
Upon request, EHSD will review commercially available Health and Safety
Courses and approve them : the requirements of 1440.2 and/or 1440.3 are met.
Contact EHSD in EPA Heaor rters or Regional Health and Safety Managers*.
A.3.a to A.3.c. NFCES program Minimum Training
FUSt OPiXJBTi ^ ^T?B^/1CUS ^3T8I^J\inJ S8w^^8fXC8 ^iTft r^CF^^LJTBnBn^eff • If th(B ^J^SDOCCQIT
has had prior experience or training related to NFCES inspections in accordance
with the following sections A.3.a, A.3.b or A.3.C, please circle the "yes."
The "no" response will normally be circled for new staff. If "no1* is indicated
under the "previous training satisfies requirement" section, training completiJ
target dates must be established. All new inspectors are expected to complete^
the NFCES Minimum Training program.
A. 3. a WPPES Minlimm "ft^lfUfff ly Self s**»*y (A. 3. a training only) — For those
individuals who within the past two years have become familiar with the material
in the NFCES Compliance Inspection Manual (and Draft Self Study Guide as an
option) , the Flow Measurement Manual and the Clean Mater Act and the regulations
through self study, cdassroom/workahop exposure or supervisory experience in the
NFCES
A. 3.b NPLKS Minimum "Braining bv on the J*^y "nrslnlrKf (9JD (A.3.b training only)
For those experienced individuals who within the last two years, have success-
fully led or independently nmrtnrfflrl NFCES inspections, or have been designated
trainers/coaches of other inspectors in QJT situations, or actively served on
work groups for developing training materials, because of their extensive
experience.
These individuals will by their career circumstances have already had the
equivalent of a formal GOT piajram, and will have knowledge of how to prepare for
inspections, how to use human relations skills during inspections, how to sample,
review records and prepare reports. For supervisors a minimim of two years of
supervising experienced NFCES inspectors and including responsibilities such as
reviewing inspection reports. New or experienced supervisors would be expected
to have observed or assisted on at least two NFCES inspections, though not
necessarily to have conducted independently those inspections.
A.3.c NFLES Minimum Tyainjjyt bv dftSMimjpi/Wory^ggs (A.3.c training only) ~ F*J
those individuals who within the last two years, have successfully led or
independently conducted or supervised NFCES inspections and have been designated
-------
- 7 -
WQFK SHEET II- INSTKUUl'ICNS
by the supervisor to teach/ coach other inspectors, or haw actively served on
work groups for developing training material*, hermme of their extensive
experience. (Self study would be appropriate if no NFDES class/workshop was
offered within reasonable travel distance within one year of a new inspector's
entry date.)
Training for NFCES inspectors nay also include remedial classroom training in
such areas as wastewater treatment, chemistry, biology, etc. should the super-
visor require this. However this training will not. be subject to the
ftoerever the answer is "no" to the
question en previous training, the "training completion target date" must be
listed.
*"
W>er» there is a target
ntered, the
actual completion date should be entered when the targeted training is completed.
Review and Approvals: The first line supervisor should review and approve the
work
I 1.
-------
FOFM A - EXCEPTICNS
-------
WOFK SHEET t 1 -FORM A
FCRf A - MBUUEbT FOR EXCEPTION UNDER EPA ORDER 3500.1
EMPLOYEE NAME
New [ ] Experienced [ ]
Types of Ccnpliance
Inspection Related Duties:
ORGANIZATION
Inspector [ ] Supervisor [ ]
Assignment:
[ ] Request for Exception: This enployee has previous training and or
experience that satisfies the following requirements of EPA Order 3500.1
'iVtA 1 M[fr>j }/}»IJ 1 \ ^KMI'MI1
Pre\
sss
rioufi
COT
i Trng
Class
Previous
Exper-
• «v^*
' [jate Su|
OE5CRIPTIGN
perVlaOT JA«JI n\ju» ry ua&m
Approving Official/ Date
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- 1 -
WORC SHEET I 1 - FOFM A
FORM A
lOUUKfT FOR- EXCEPTEOe QWBR EE& CECER 3500.1
The putpose of this form is to document that the inspector or first-
line supervisor is both eligible (as defined by EPA Order 3500.1 for the
categories of "new" and "experienced" inspectors) and qualified to request
approval of an exception. This form may be used alone or in conjunction with
other documentation, such as certificates of completed training, depending on
the level of detail required by the approving official. Refer to the Generaj.
i, for the principles to follow in assessing previous training and/or
experience. A sample fora has been completed for an "experienced" inspector
assigned to the RCBA Program in Region HZ.
INPORiMION: There are three major items, as follows. 1. Enter
employee name, organization, and program assignment. 2. Check whether the
individual is new or experienced, as defined by EPA Order 3500.1; also, check
whether the individual is an inspector or a supervisor. 3. Under Duties: For
the inspector, briefly state the types of compliance inspections. For the
supervisor, indicate what inspection programs and/or case development work s/he
Under this column heading, list the applicable training
requirements for which the individual is seeking an exception, including the
Basic Curriculum, Health and Safety Training under 1440.2 and/or 1440.3, and
Program-Specific Mininum Training.
PBEvTODS TRAINING: Under this column heading, check the type(s) of training,
supervised self-study, on-the-job training and/or classes that satisfies the
narpn i mturrh
PREVIOUS EXPHOBiCE: Place a check under this column heading, if previous exp-
erience is the basis for the exception.
LKSCHimiON: Under this column heading, briefly describe the previous training
and/or experience that is the basis for the exception. If more space is
needed, attach a separaaaate separate written statement, signed by the first
line supervisor, describing the following documentation as appropriate. For
example, if comparable classroom training was offered through the Region,
please provide the sponsor name, date(s) of attendance and location of the
class. Also, attach a copy of the certificate of completion if the inspector
received one.
A.3.a P7B §m* fllPCY EMmtTlCHS* p*^** and circumstances where the inspector
gained familiarity with the self study materials cited above (See Section
A.3.a, Work sheet f 1, page 5).
A.3.b FOR ctf-THESJOB TRADED*? PffiiiiHI'lCMSt Provide location and exact
when the inspector has been assigned to coach or train other inspectors in the
inspection planning, on-site and follow-up techniques for an NPOES Inspections.
Describe field work involved and indicate type and number of inspections (CZZ,
CSI, or RI where applicable), and whether they involve municipal or
nonmunicipal facilities. How long has the employee been conducting inspections?
-------
- 2 -
WQFK SHEET I 1 - TOFM A
A.3.C p'TflfflFIPBfci.'-"-'* FCR NpCES gTAggppr^/ WCRRgpPS Pnjprpyg; Ptovide the
data, location, and sponsor of the workshop/ class the inspector has had that
is ccn^arable to the Introduction to NFCBS Inspections workshop/ cli
training. This information nay b> oontained on an attached copy of the
certificate of oonpietion.
VI. snaaerafK: Each form should be sighed by the inspector or first-line
supervisor, the supervisor who is reoonnending the request be atJUtwaJ, and by
the approving official, in accordance with procedures established within the
Region for requesting an
-------
WORK SHEET f 2
-------
WORK SHEET I 2
GUIDELINE* ON MPDBS INSPECTOR TRAINING - WORK SHEET FOR SKILLS
EXPANSION/SPECIALIZED TRAINING FOR NPDES/PRETREATMENT INSPECTIONS
Employee Name Organization
(See Page 3 for explanation* and instructions.)
B. SCOPE OF SKILLS EXPANSION/SPECIALIZED TRAINING PROGRAM: This
training program will assure that inspector is able to lead or
independently conduct the following types of inspections:
- Toxic Sampling Inspection (XSI)
- Biomonitoring Compliance Inspections (CBI)
- Pretreatment Compliance Inspection (PCI)
- Performance Audit Inspections (PAI)
- Diagnostic Inspections (DI)
- Other (Offshore drilling rig
CEIs (0-CEI);PCI— for IU's,etc.)
TOPIC/ACTIVITY TRAINING
TARGET ACTUAL
COMPLETION COMPLETION
B.I Self Study DATE DATE
Using the NPDES Compliance
Inspection Manual (1988), with self
study guide, in depth study
of appropriate chapters. May also
study the Act regulations and
pertinent current guidelines.
1) XSI .
2) CBI
3) PCI
4) PAI
5) DI -
6) Other (As CEI-
drilling rig;etc.)
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- 2 -
Work Sheet * 2 Coirt. . TRAINING
COMPLETION ACTUAL
TARGET COMPLETION
DATE DATE
B.2 On the Job Training:
Supervised inspections - two of each type with' the inspector
performing all functions with coaching by an experienced
inspector.
1)
2)
3)
4)
XSI
CBI
PCI
PAI
5) DI
6) Other (CEI-drill _
rig; PCI-IU; etc.)
B.3 Classes/Workshops
B.3.a Pretreatment Compliance Inspection
Workshops, with two one-day workshops
possible - one on concentrating on POTW's;
and one on Industrial Users.
(Through OWEP contract or Regional
in-house effort.)
(PCI) _
(PCI-IU)
B.3.b Diagnostic Compliance Inspection
Workshop - basic skills or more
advanced skills coverage, through
the OWEP Contract or through Regional
in-house training.
B.3.c Other Training Classes Assigned
within the Region (such as on advanced
wastewater treatment).
Signature of First Line Supervisor Date
Organization
-------
WORK SHEET I 2 - INSTRUCTIONS
B. The skills expansion and specialized training is generally
provided after completion of the NPDES Minimum Training for
inspectors. However when scheduling of Workshops and other
training experiences are constrained by availability and budget,
some portions of the workshops, OJT, and self study may need to
be scheduled simultaneously with the NPDES Minimum Training.
In addition it should be noted that where a new inspector
has not been identified as an inspector who will not be needed
for covering compliance sampling inspections, the OJT sampling
inspections may be postponed until such time as the inspector
will need the compliance sampling skills. Thus self study,
classroom training and OJT for diagnostic inspections and
pretreatment compliance inspections may precede certain portions
of the minimum training for conducting sampling inspections.
For all specialized training (under B.I, B.2, and B.3),
the target date should be listed in the first column. After the
training is completed the actual completion date should be listed
in the second column.
B.I The Inspection Manual (1988) forms the primary self study
material. In addition pertinent portions of the Clean Water Act
and applicable portions of the regulations may need to be
reviewed.
B.2 During the OJT portions 'of the training program, the
inspector is performing all elements of the inspection with
coaching of an experienced inspector. Before being qualified to
lead or independently conduct the inspection, indicated under
Section B, the inspector must have completed at least two and
often more of that particular type of inspection while receiving
coaching from an experienced inspector.
B.3 Self explanatory.
-------
APPENDIX
-------
GUIDELINES ON HPDBS INSPECTOR TRAINING - SUMMARY of WORK
SHEETS (OPTIONAL) ON EMPLOYEE'S NPDES INSPECTOR TRAINING
Employee Date
Organization New [ ] Experienced [ ]
EXPERIENCE - Inspections conducted in the previous fiscal year.
List inspection numbers:
CEI XSI CBI PAI PCI
CSI RI DI Other
A. MINIMUM TRAINING - Dates Completed
Class/Wkshop Self Study OJT
A. 2 Fundamentals N/A" N/A
Health and
Safety 1440.2 N/A N/A
1440.3 N/A N/A
A. 3 NPDES - Program Minimum
- CEI
- CSI
- RI
B. SPECIALIZED TRAINING - Date Completed
Type Class/Wksp Self study OJT
XSI 'm
CBI
PCI
PAI
DI
other- *
ADDITIONAL HEALTH AND SAFETY - Date Completed
Type Required (including Class/Workshop
refresher training)
Signature of Supervisor Date
A - 1
-------
INSTRUCTIONS - NPDES GUIDELINES ON INSPECTOR TRAINING
SUMMARY OP WORK SHEETS
The summary sheet provides space for recording only the
completion date of the training indicated. It summarizes both
the NPDES Minimum Training and the specialized training dates,
where the supervisor wishes to keep a record of all training
provided.
This Summary should only be utilized as a synopsis of the NPDES
Work Sheets |1 and I 2, and as appropriate the generic form on
health and safety provided by Office of Enforcement and
Compliance Monitoring. This summary should be filled out only
after providing documentation on Work Sheets I 1, and 12. At
the bottom of the Summary is space for health and safety training
that is to be taken in addition to the basic health and safety
under Section A.2.
A - 2
-------
SUMMARY OF MPOES
ZMFBCTOII TUXIMUIC PROGRAM DESCRIPTION
A.
Th« VMS Training Prograa astabliahas • cora prograa, of
coursework, salf instruction and on-the-job training (OJT) for
those individuals who carry out MPDES coapllanca/enforceaent
activities for EPA. This suaary daacribes a saquanea for new
inspectors, and for expansion of skills latar on. Aftar
coapletion of Basic Training and Introductory NPDES training,
self-instruction and OJT, tha inspactor should be abla to conduct
tha coaplianca avaluation inspaction and tha sampling inspaction.
Tha goal is for aach naw inspactor to eoaplata this saquanea
within six to nina aonths on tha job. Job skills can than ba
axpandad through mora atudy and instruction into araas such as
parforaanca audit, pratraatmant,and diagnostic inspactions.
Tha figura balov shows th» plan in suaaary fashion. In
ordar to gat a copy of tha eoaplata NPPES Training Proqraa
Da«eription. contact: Diraetor, Cnforcaaant Division, Offica of
Watar Enforcaaant and Paraits, HQ (EK-331), US£PA, 401 M Straat,
SW, Washington, D.C. 20460. ITS 475-8310..
NPDES Training Plait
Cour«a«/Workahop«
Canaral Oriantation
I Salf Instruction /OJT
Prooram-Minimui
I
Basic Znspactor Curriculum
NPOCS Introductory Couraawork
(Manuals availabla by 4/tS)
CWA and Ragulations
Violation Racognition
Saapling Tachniquas
Manuals for Introduction
to Coaplianca Inspactions
Plow Maasuraaant Manual
OJT* 2 inspactions aach
for coaplianca avaluation
and cosplianca saapling
inspactions
Skills Expansion
PratraatMBt Inspaction
workshop
Diagnostic Inspaction
Workshop
Pratraataant Cuidanca
Pratraataant Coaplianca
Inspaction and Audit Manual
Inspector's Cuida for Evalu-
ating Municipal tfastawattr
Traataant Plants
A - 3
-------
Toxics Stapling OJT-Bioaonitoring, toxics
saapling and pretreataent
inspections
(To be developed)
«p«eiali»ed Skill*
Offshore Drilling Rig Inspections
(to be developed)
Criminal Investigations (FITTC, Glynco, GA)
Ths following materials for the nsv inspector should b«
available fro* ths inspector's first-line supervisor or the
addresses footnoted below.
o General Orientation Package
- Organization chart
- Clean Water Act end regulations
• NPDCS Inspection Strategies and Guidance such as the Clean
Water Act Coapliance/Inforceaent Coapendiva
- Saaple NPOCS inspection reports
- Description of HQ/Xegional/Stata relationships
- NPDES Coapliance Inspection Manual
o Introduction to NPPES Inspections (Available 4/ii)
- NPOCS Coapliance Monitoring Inspector Training Modules l
— Overview (draft)
— Legal Issues (draft)
— sampling (draft)
— Laboratory Analysis (under developaent)
— Bioaonitoring (under developaent)
Order •
- Field Manuals for Self Instruction and OJT HTIS IRC2
— NPOES Coapliance Inspection Manual PBS5115S97 oesu
— NVOtS Flow Measureaent Manual PBt213117t/AS osou
o
• Pretreataent Inspections-
— Pretreataent Coapliance Monitoring and Knforceaent
Guidance) (July !§••)
— Pretreataent Coapliance inspection and Audit
Manual for Approval Authorities (July ltS6)
• Diagnostic Inspections IRC2
— Inspectors Guide for Evaluation of Municipal 02 lu
Wastewater Treatment Plants, EPA/430/9-79-010
(April 1979)
A - 4
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II. NPDES PROGRAM: PRE-ENFORCEMENT
C. MEASURING COMPLIANCE/DATA PROCESSING
-------
II.C.I
# "PERMIT COMPLIANCE SYSTEM DATA ENTRY, EDIT AND UPDATE MANUAL; INQUIRY
USER'S GUIDE; PCS GENERALIZED RETRIEVAL MANUAL; EDIT/UPDATE ERROR
MESSAGES," updated July, 1990. Table of Contents only.
-------
-------
PCS Data Entry* Edit, and Update Manual
Document Number PCS-DE90-2.01
July 2, 1990
PCS USER SUPPORT
202/475-8529
U.S. EPA CEN-338)
401 M. St. SW
Washington, DC 20460
-------
-------
TABLE OF CONTENTS
1.0 NPDES Overview 1-1
1.1 PCS Overview . 1-1
1.2 Overview of PCS Functional Capabilities 1-1
1.3 Input Processing ' . . 1-2
1.3.1 PCS Data Entry . 1-2
1.3.1.1 Batch Data Entry 1-3
1.3.1.2 On-Une Data Entry 1-3
1.3.2 Edit Processing 1-4
1.3.3 Update Processing 1-4
1.3.3.1 Update Audit Report 1-4
1.3.3.2 Violation Recognition Report 1-5
1.3.3.3 Administrative Deficiency Report . 1-5
2.0 MAINTENANCE OF THE PCS DATA BASE 2-1
2.1 PCS Data Types 2-1
2.1.1 Organization of Data in PCS 2-3
2.2 Key Data Elements 2-5
2.3 PCS Transactions ..... 2-11
3.0 PCS-ADE ON-LINE DATA ENTRY 3-1
3.1 PCS-ADE General Features 3-1
3.1.1 Access to PCS-ADE 3-1
3.1.1.1 Logon Procedure to CICS using Full-screen Ter-
minal w/ Direct Connect 3-2
3.1.1.2 Logon Procedure to CICS using Full-screen Ter-
minal w/ TYMNET Connect 3-4
3.1.1.3 Procedure to Exit CICS 3-5
3.1.2 Input 3-6
3.1.3 Transaction Codes 3-7
3.1.4 Key Data Elements 3-8
3.1.5 Edit Checking 3-8
3.1.6 Error Messages 3-9
3.1.7 Special Accept Options . 3-9
3.1.7.1 'CYCLE* Accept Option 3-9
3.1.7.2 'KEEP KEY' Accept Option 3-10
3.1.7.3 'RETAIN* Accept Option 3-10
3.1.8 Automatic 'CHANGE' Option 3-10
3.1.9 Security 3-11
3.1.10 Batch ID Number 3-11
3.2 Data Entry Screens 3-12
3.2.1 Main Menu Screen 3-13
3.2.2 Facility Data Screen il (FAC1) 3-14
3.2.3 Facility Data Screen #2 (FAC2) 3-17
3.2.4 Facility Address Screen (FACA) ........ 3-19
3.2.5 Owner/Operator Address Screen (FACO) 3-21
3.2.6 Reissuance Data .Screen (RCIN) 3-23
3.2.7 Inspection Screen (INSP) 3-25
3.2.8 Inspection Scheduling Screen (INSS) 3-28
3.2.9 Pretreatment Data Key Screens (PCI1, PCI2, PAU1,
PAU2, PAU3) 3-30
Table of Contents iv
-------
-------
3.2.10 Pretreatment Compliance Inspection Screen 1 (PCI1) 3-32
3.2.11 Pretreatment Compliance Inspection Screen 2 (PCI2) 3-35
3.2.12 Pretreatment Audit Screen 1 CPAU1) ...... 3-38
3.2.13 Pretreatment Audit Screen 2 (PAU2) 3-41
3.2.14. Pretreatment Audit Screen 3 (PAU3) 3-44
3.2.15 Pretreatment Summary Screen (PPS1) 3-47
3.2.16 Compliance Schedule Screen (CSCH) 3-49
3.2.17 Compliance Schedule Violation Screen (CVIO) . 3-51
3.2.18 Permit Tracking Screen CPTRK) 3-53
3.2.19 Evidentiary Hearing Screen (EVHR) 3-55
3.2.20 Grant Screen (6RNT) 3-57
3.2.21 Outfall General Data Screen (OFLG) 3-59
3.2*22 Outfall Treatment Type/Comment Screen (OFLT) . 3-62
3.2.23 Limits Screen CLIMS) 3-64
3.2.24 Limit Modification Screen (LIMM) ....... 3-66
3.2.25 Season Split Screen (SEAN) 3-69
3.2.26 Effluent DMR Data (EDMR) 3-71
3.2.26.1 Key Screen 3-71
3.2.26.2 Data Screen 3-72
3.2.27 Effluent Measurement Screens (EVIO) 3-75
3.2.27.1 Key Screen 3-75
3.2.27.2 Data Screen 3-77
3.2.28 Enforcement Action Screen (ENAC) 3-80
3.2.29 Enforcement Action key Screen (EAKS) 3-83
3.2.29.1 Key Screen 3-83
3.2.29.2 Data Screens 3-88
3.2.30 Administrative Penalty Order Screen (EAP1) . . 3-93
3.2.31 Administrative Penalty Order Screen (EAP2) . . 3-95
3.2.32 Single Event Violations Screens (SVIO) .... 3-97
3.2.33 PCS Table Modification Screen (TABS) 3-99
3.2.33.1 Table Selection Screen 3-99
3.2.33.2 Table Entry Screens 3-100
3.2.34 System Error Screen 3-105
3.2.35 Exiting from a PCS-ADE Session 3-105
4.0 PCS PC-ENTRY MICROCOMPUTER DATA ENTRY 4-1
4.1 PCS PC-ENTRY General Topics 4-1
4.1.1 System Description 4-2
4.1.2 Data Entry Screens 4-2
4.1.3 Transaction Codes 4-2
4.1.4 Key Data Elements 4-3
4.1.5 Edit Checking 4-3
4.1.6 Edit Error Messages 4-3
4.1.7 Batch Header Card/Security Id 4-4
4.1.8 Transaction. Fi les 4-4
4.1.9 System Error Messages 4-5
4.2 Equipment Description for PCS PC-ENTRY 4-5
4.2.1 Microcomputer Requirements 4-6
4.2.2 Computer Communications Requirements 4-6
4.2.2.1 ASCII TTY Mode (Line-by-Line) 4-6
4.2.2.2 Full-Screen Terminal Mode 4-7
4.2.3 Keyboard Description ..... 4-7
4.2.4 Keys with Special Functions 4-10
4.3 Installing PCS PC-ENTRY on a Microcomputer .... 4-11
Table of Contents v
-------
4.3.1 How to Get a Copy of the PCS PC-ENTRY System . 4-1
4.3.2 System File Description 4-1
4.3.3 Harddisk System Installation ......... 4-12
4.3.4 Floppy System Installation 4-13
4.3.5 Special Note on Installing New Releases .... 4-13
4.3.6 Entering Data using PCS PC-ENTRY 4-14
4.3.7 General Screen Features 4-14
4.3.8 Getting Started 4-15
4.3.8.1 Harddisk System 4-15
4.3.8.2 Floppy System 4-15
4.3.9 Description of Information On System Screens . 4-16
4.3.10 Introduction Screen and Parm File 4-17
4.3.11 MAIN FUNCTION MENU (MAIN) . . . . 4-18
4.3.11.1 GENERAL INFORMATION Function (H) 4-19
4.3.11.2 SYSTEM SETUP Function (S) 4-20
4.3.11.3 DATA ENTRY Function (E) 4-22
4.3.11.4 FILE UTILITY Function (U) . 4-25
4.3.12 Description of Data Entry Screens 4-31
4.3.12.1 Facility Data Screen 1 (E.FAC1) 4-32
4.3.12.2 Facility Data Screen 2 (E.FAC2) 4-35
4.3.12.3 Facility Address (E.FACA) 4-37
4.3.12.4 Facility Owner/Open Addr (E.FACO) .... 4-39
4.3.12.5 Reissuance (E.RCIN) ..... 4-41
4.3.12.6 Inspection (E.INSP) 4-43
4.3.12.7 Inspection Schedule (E.INSS) 4-45
4.3.12.8 Pretrmt Comp. Insp 1 (E.PCI1) . 4-47
4.3.12.9 Pretrmt comp. Insp 2 (E.PCI2) 4-4«
4.3.12.10 Pretreatment Audit 1 (E.PAU1) 4-5^
4.3.12.11 Pretreatment Audit 2 (E.PAU2) 4-54
4.3.12.12 Pretreatment Audit 3 (E.PAU3) 4-56
4.3.12.13 Pretrmt Summary (E.PPS1) 4-58
4.3.12.14 Compliance Schedules (E.CSCH) 4-60
4.3.12.15 Compliance Schedule Viol. (E.CVIO) . . . 4-62
4.3.12.16 Permit Tracking (E.PTRK) 4-64
4.3.12.17 Evidentiary Hearings (E.EVHR) 4-66
4.3.12.18 Grants (E.GRNT) . 4-68
4.3.12.19 Outfall General Data (E.OFLG) . 4-70
4.3.12.20 Outfall Treat. Type/Comment (E.OFLT) . . 4-73
4.3.12.21 Limits (E.LIMS) 4-75
4.3.12.22 Limit Modifications (E.LIMM) 4-78
4.3.12.23 Season Split (E.SEAN) 4-81
4.3.12.24 Effluent DMR Page (E.EDMR) ....... 4-83
4.3.12.25 Eff. Measurement/Violations (E.EVIO) . . 4-85
4.3.12.26 Enforcement Actions (E.ENAC) 4-87
4.3.12.27 Enforcement Action Keys (E.EAKS) .... 4-90
4.3.12.28 Single Event Violations (E.SVIO) .... 4-93
4.3.12.29 Administrative Penalty Order Screen (E.EAP1) 4-95
4.3.12.30 Administrative Penalty Order Screen (E.EAP2) 4-97
4.3.13 Files Created During Data Entry ....... 4-98
4.3.13.1 Data Base File (.DBF) 4-99
4.3.13.2 Data Base Summary File (.DBS) 4-99
4.3.13.3 Upload Data File (.PCE) 4-99
4.3.13.4 Upload Summary File (.SUM) 4-10
4.4 Uploading Data to the Mainframe at NCC 4-10
Table of Contents' vi
i
-------
5.
5.
5.
5.
6.
6.
6.
4.4.2 Description of Communications Software Available
for Uploading Data
0 BATCH DATA ENTRY .
5.3.1 Header Card ,
5.3.2.1 Permit Facility Data Cards
5.3.2.2 Compliance Schedule and. Permit Tracking Event
5.3.2.3 Compliance Schedule Violation Data Cards
5.3.2.8 Enforcement Action and Enforcement Action Vio-
5.3.3.1 Permit Facility Data Cards
5.3.3.5 PCI/Audit Data
5.3.3.6 Pretreatment Performance Summary (PPS) Data
5.3.3.8 Compliance Schedule Violation Data Cards
5.3.3.12 Pipe Schedule Data Cards
5.3.3.16 Enforcement Action Violation Key Data Cards
5.3.3.17 Administrative Penalty Order Data Cards
5.3.3.18 Single Event Violation Data Cards ....
0 CODING CONSIDERATIONS
6.1.1 NEW Transactions (N) -. . ,
6.1.2 CHANGE Transactions (C) .
6.1.3 DELETE Transactions (D) .
6.1.4 MASS DELETE Transactions (X)
6.1.5 REPLACE Transactions (R)
6.2.1 Permit Facility Data Type . .
6.2.2 Inspection Data Type
6.2.4 PCI/Audit Data Type
6.2.5 Administrative Penalty Tracking Data Type . . .
6.2.6 Pretreatment Performance Summary Data Type . .
4-101
4-101
, 5-1
. 5-2
. 5-3
. 5-7
. 5-7
. 5-8
. 5-8
5-16
5-17
5-18
5-19
5-22
5-24
5-25
5-30
5-30
5-37
5-38
5-39
5-41
5-45
5-46
5-47
5-49
5-50
5-50
5-51
5-53
5-59
5-61
5-63
5-64
5-69
. 6-1
. 6-1
. 6-1
. 6-2
. 6-3
. 6-4
. 6-4
. 6-5
. 6-5
6-16
6-19
6-21
6-22
6-23
Table of Contents vii
-------
6.2.7 Compliance Schedule Data Type 6
6.2.8 Compliance Violation Data Type 6-2?
6.2.9 Permit Events Data Type 6-30
6.2.10 Evidentiary Hearing Information 6-32
6.2.11 Pipe Schedule Data Type 6-33
6.2.12 Parameter Limits Data Type 6-41
6.2.13 Measurement Violation Data Type 6-50
6.2.14 Enforcement Action Data Type 6-54
6.2.15 Enforcement Action Violation Key Data Type . . 6-56
6.2.16 Single Event Violation Data Type 6-58
6.3 Permit Reissuance Processing 6-59
6.3.1 Effluent Data Family Relationships 6-59
6.3.2 Effluent Family Linkage ... 6-60
6.'3.3 Reissuance Control Indicator 6-61
6.3.4 Reissuance Rules and Automatic Processing . . . 6-62
6.4 Archival Processing 6-65
6.5 User Data Elements 6-66
7.0 PCS EDIT/UPDATE PROCESSING 7-1
7.1 Pre-Edit Conversion Processing 7-1
7.1.1 Permit Facility Data Conversion Processing ... 7-2
7.1.2 Permit Event Data Conversion Processing . . . . . 7-2
7.1.3 Pipe Schedule Data Conversion Processing .... 7-3
7.1.4 Parameter Limits Data Conversion Processing . . . 7-3
7.1.5 Measure'ment/Vi olat i on Data Conversion Processing 7-3
7.1.6 Compliance Schedule Data Conversion Processing . 7-4
7.1.7 Compliance Schedule Violation Data Conversion Proc-
essing 7-^
7.1.8 Inspection Data Conversion Processing 7-5
7.1.9 Enforcement Action Data Conversion Processing . . 7-5
7.2 PCS Edit Processing 7-7
7.2.1 Edit Audit Report - Rejected Transactions .... 7-8
7.2.2 Edit Audit Report - Accepted Transactions . . . 7-10
7.2.3 Edit Audit Summary Report 7-11
7.2.4 Use of the Edit Audit Report 7-12
7.3 PCS Update Processing . 7-12
7.3.1 Update Processing Input/Output 7-12
7.3.2 Update Audit Report - Rejected/Accepted Trans-
actions . . 7-13
7.3.3 Violations Recognition Report . . 7-14
7.3.4 Administrative Deficiency Report 7-16
8.0 PCS SPECIAL PROCESSING . 8-1
8.1 Compliance Schedule Violation Tracking 8-1
8.1.1 Types of Violations 8-1
8.2 Discharge Monitoring Report (DMR) Non-receipt Tracking 8-3
8.3 Effluent Measurement Violation Tracking ....... 8-4
8.4 QNCR Reportable Noncompliance (RNC) Identification . 8-8
8.4.1 RNC D'ata Elements - Input Considerations .... 8-8
8.4.2 PCS Production Runs that Detect/Resolve RNC . . . 8-9
8.4.3 Single Event Violations Independently Determined
by The Agency 8-10
8.4.4 Automatic Detection/Resolution of RNC for Vio-
lations 8-1
Table of Contents viii
-------
8.4.4.1 Detection/Resolution of RNC - For Compliance
Schedule Violations .
8.4.4.2 Detection/Resolution of RNC - For Effluent Vi-
olations . . •
8.4.4.3 Detection/Resolution of RNC - For Non-Receipt
Violations
8.4.4.4 System Detection/Resolution of RNC - For In-
complete DMR Violations
8.4.5 System Detection/Resolution of RNC By Enforcement
Actions
8.4.5.1 Detection/Resolution of RNC By EA - For Com-
pliance Schedule Viols.
8.4.5.2 Detection/Resolution of RNC. By EA - For DMR
Violations
8.4.5.3 System Detection/Resolution of RNC by Interim
Limits in an EA
8.4.5.4 Turning off RNC for Effl. Vio. w/ Extended
Compliance Schedules
9
9
8,
8,
8
8
8
0
1
9.
9.
2
3
9.
9.4
6
,7
,4,
,4,
,8
,9
,4,
,4,
,4,
Manual Setting of RNC
RNC Data Elements - Retrieval Condiderations
7.1 RNC Detection Codes
7.2 RNC Resolution Codes
RNC Detection and Resolution Dates ...
QNCR Facility Status
QNCR Facility Status Acronyms
Determination of Facility Status
Manual Entry of Facility Status Codes - Batch
Format
8.4.9.4 Manual Facility Status Codes - Values
.4.10 RNC Coding Considerations
8.4.10.1 Resolved Pending Resolution of
Enforcement Action . .
8.4.10.2 Resolution by Closure of an Enforcement Action
8.4.10.3 Manual Detection/Resolution of RNC Violations
8.4.10.4 Back Into Compliance Resolution
RNC Viols, by
Using TSO With PCS
Activating Special PCS/TSO Comands
1.1 New Users (NEMUSER)
1.2 STORET Users
ISPF PCS Menu
Summary of PCS/TSO READY Prompt Commands ....
3.1 Online HELP available on PCS/TSO Commands . .
Editing PCS Data Using the PCS/TSO Command (PCSEDIT)
8-11
8-12
8-15
8-16
8-16
8-16
8-18
8-19
8-20
8-21
8-21
8-22
8-24
8-25
8-27
8-27
8-28
8-28
8-30
8-30
8-31
8-41
8-45
8-56
9-1
9-1
9-1
9-2
9-2
9-2
9-4
9-5
A.O APPENDZCIES App«nd-l
Appendix A. Introduction to tha NPDE3 Permit Issuance for PCS
Users
Appendix B. Talaphona Numbers
Appendix C. TYMNET Full-Screen Kay Conversion for VT-100
Terminals (EPACMT)
A-l
B-2
C-l
Table of Contents
-------
Appendix D. QNCR Category Noncompllance . D-l,
D.I QNCR Category I D-l
D.2 QNCR Category II D-l
Appendix .E. PCS PC Software available online at NCC . . . E-l
Appendix F. Using KERMIT to Upload/Download Files .... F-l
F.I Instructions for downloading the PCS PC Software with
KERMIT F-l
F.2 Using KERMIT to upload PC-ENTRY data files F-3
F.2.1 Harddisk System F-3
F.2.2 Floppy System F-6
F.2.3 KERMIT Command Summary F-8
F.2.4 Submitting PCS Edits on the Mainframe F-9
Appendix 6. Using CROSSTALK to Upload/Download Files . . . 6-1
6.1 Instructions for downloading the PCS PC Software with
KERMIT 6-1
6.2 Using CROSSTALK to upload PC-ENTRY data files .... 6-1
Appendix H. Using ARBITER to Upload/Download Files .... H-l
H.I Instructions for downloading the PCS PC Software with
ARBITER H-l
H.2 Using ARBITER to upload PC-ENTRY data files H-2 .
Appendix Z. Using SEND/RECEIVE to Upload/Download Files . 1-1
I.I Instructions for downloading the PCS PC Software with
RECEIVE Cmd 1-1
1.2 Using SEND command to upload PC-ENTRY data files . . 1-2
Appendix J. Using COMPRESSED PC Software files (PKARC) . . J-l
Appendix K. PCS User Comments K-l
Table of Contents
-------
PCS INQUIRY U**r>'« Quid*
Document Number PCS-IN90-2.01
July 2, 1990
PCS USER SUPPORT
(FTS/202)<»75-8529
U.S. EPA (EN-338)
401 N. St. SW
Washington* DC 20460
-------
CONTENTS
1.0 INTRODUCTION TO PCS INQUIRY
1.1 PCS Data Base
1.1.2 Data types
1.2 PCS capabilities .
2.0 PCS INQUIRY LOGON/LOGOFF PROCEDURES
2.2 Accessing PCS INQUIRY
2.3 Exiting PCS INQUIRY
3.0 INITIATING AN INQUIRY SESSION
3.1 Entering PCS INQUIRY
3.2 SELECTING MANAGERS MODE, PROMPT MODE OR COMMAND MODE
3.2.1 Selecting MANAGERS Mode ("M")
3.2.2 Selecting PROMPT Mode ("P")
3.2.3 Selecting COMMAND Mode ("C") . .
3.2.4 Requesting Help ("?")
3.3 PCS SECURITY
3.4 INQUIRY KEYBOARD FUNCTIONS
4.0 CONDUCTING AN INQUIRY SESSION IN MANAGERS MODE . .
4.1 Producing a MANAGERS Mode Report
4.1.1 Creating a Set using the Set Maintenance Option
4.1.2 Creating a Set using Primary Selection Criteria
4.1.3 Selecting a MANAGERS Mode Report
4.1.4 Verifying the Report Selection Criteria ....
5.0 INQUIRY MANAGERS MODE REPORTS
5.1.1 Facility Directory Selection Criteria
5.1.2 Facility Directory Output
5.2 Facility Overview Report
5.2.1 Facility Overview Report Selection Criteria . .
5.3.1 Permit Event Report Selection Criteria . . . .
5.4.1 Inspection Scheduling Report Selection Criteria
5.6 Compliance Schedule and Violations Report
. 1-1
: 1-1
. 1-2
. 1-3
. 1-7
. 1-7
. 2-1
. 2-1
. 2-6
. 2-7
. 3-1
. 3-1
3-1
. 3-1
. 3-2
. 3-2
. 3-3
. 3-3
. 3-3
. 4-1
. 4-1
. 4-2
4-12
4-24
4-34
4-34
4-35
4-37
. 5-1
. 5-2
. 5-2
. 5-3
. 5-4
. 5-4
. 5-5
5-12
5-13
5-14
5-16
5-16
5-17
5-20
5-20
5-21
5-24
Table of Contents iv
-------
PCS Generalized Retrieval Manual
Document Number PCS-6R9Q-3.01
July 2, 1990
PCS USER SUPPORT
202/475-8529
U,S. EPA CEN-338)
401 M. St. SW
Washington, DC 20460
-------
TABLE OF CONTENTS
1.0 Introduction 1-1
1.1 PCS System Overview . 1-1
1.2 PCS Security and Privacy 1-1
1.3 Using the Manual 1-2
2.0 Data OvarvlaM 2-1
2.1 Data in PCS 2-1
2.2 Organization of PCS 2-5
3.0 RatHaval Descriptions 3-1
3.1 Quick Look Report 3-1
3.1.1 Cluster Quick Look Report 3-1
3.1.1.1 Single Family Cluster Format 3-1
3.1.1.2 Multi-Family Cluster Format 3-2
3.1.2 Hierarchical Quick Look Report 3-2
3.1.2.1 Compliance Schedule Hierarchical Format . . . 3-2
3.1.2.2 Effluent Hierarchical Format 3-3
3.1.2.3 Inspection Hierarchical Format 3-3
3.1.2.4 Enforcement Action Hierarchical Format . . . 3-3
3.2 Milestone Report 3-4
3>3 Facility Report 3-4
3.4 Compliance Forecast Report . 3-4
3.5 Compliance Forecast with Violations Report ..... 3-5.
3.6 Limitation Summary Report 3-j
3.7 Limitation Summary with Measurement Violations Report 3-
3.8 DMR Administrative Report 3-5
3.9 DMR Administrative Report by Parameter 3-6
3.10 DMR Summary Report ..... 3-6
3.11 DMR Forecasting Report 3-6
3.12 Quarterly Noncompliance Report (QNCR) 3-6
3.13 Selective Quarterly Noncompl1ance Report 3-15
3.14 Summary Quarterly Noncompl1ance Report For Managers 3-15
3.15 Coordinator's Quarterly Non-Compl1ance Report . . 3-18
3.16 Semi-Annual Statistical Summary Report 3-19
3.17 Violations Recognition Report 3-21
3.18 DMR Package . . . 3-21
3.19 Mailing Labels . 3-21
3.20 Sequential File Extracts 3-22
3.21 Quick File Extracts ......' 3-22
3.22 Industrial User Compliance Report 3-22
3.23 POTW Implementation Compliance Report 3-23
3.24 POTW Enforcement Action Summary Report 3-23
3.25 Pretreatment Hierarchy Report 3-23
3.26 PCS Effluent Data Statistics (EDS) . . 3-24
3.27 Management Graphics Package 3-24
3.28 Strategic Planning and Management System Moving Base
Report 3-26
3.29 Procedures For Loading PAL With Current PCS Data . 3-28
3.29.1 Downloading PAL from the NCC Mainframe .... 3-28
3.29.2 Loading PAL on a PC 3-
Table of Contents iv
/
L. V
-------
5.6.1 Compliance Schedule and Violations Report Selection
Criteria 5-24
5.6.2 Compliance Schedule and Violations Report Output 5-26
5.7 Enforcement Action Report 5-29
5.7.1 Enforcement Action Report Selection Criteria . 5-29
5.7.2 Enforcement Action Report Output 5-30
5.8 Outfall Limits Report 5-34
5.8.1 Outfall Limits Report Selection Criteria ... 5-34
5.8.2 Outfall Limits Report Output 5-35
5.9 DMR Overview Report 5-39
5.9.1 DMR Overview Report Selection Criteria .... 5-39
5.9.2 DMR Overview Report Output 5-41
5.10 Evidentiary Hearing Report 5-43
5.10.1 Evidentiary Hearing Report Selection Criteria 5-43
5.10.2 Evidentiary Hearing Report Output 5-44
6.0 CONDUCTING AN INQUIRY SESSION IN PROMPT MODE .... 6-1
6.1 Producing a PROMPT Mode Report 6-1
6.1.1 Selecting a PROMPT Mode Report 6-2
6.1.2 Specifying Selection Criteria 6-3
6.1.3 Verifying Selection Criteria 6-12
6.1.4 Tally 6-12
6.1.5 Display the Report Output Data 6-14
6.2 PROMPT Mode Reports - Common Features ....... 6-16
7.0 INQUIRY PROMPT MODE REPORTS 7-1
7.1 Code and Description Report 7-2
7.1.1 Code and Description Report Output 7-3
7.2 Facility Directory Report ... 7-4
7.2.1 Facility Directory Selection Criteria 7-4
7.2.2 Facility Directory Output 7-5
7.3 Facility Overview Report 7-7
7.3.1 Facility Overview Report Selection Criteria . . . 7-7
7.3.2 Faci1ity Overview Report Output . . 7-8
7.4 Outfall Limits Report 7-17
7.4.1 Outfall Limits Report Selection Criteria ... 7-17
7.4.2 Outfall Limits Report Output 7-18
7.5 DMR Overview Report 7-22
7.5.1 DMR Overview Report Selection Criteria .... 7-22
7.5.2 DMR Overview Report output . 7-23
7.6 Compliance Schedule and Violation Report 7-25
7.6.1 Compliance Schedule and Violation Report Selection
Criteria 7-25
7.6.2 Compliance Schedule and Violation Report Output 7-27
7.7 Inspection Scheduling Report 7-30
7.7.1 Inspection Scheduling Report Selection Criteria 7-30
7.7.2 Inspection Scheduling Report Output 7-32
7.8 Inspection Report . . 7-34
7.8.1 Inspection Report Selection Criteria 7-34
7.8.2 Inspection Report Output- 7-36
7.9 Permit Tracking Report . 7-38
7.9.1 Permit Tracking Report Selection Criteria . . . 7-39
7.9.2 Permit Tracking Report output . 7-40-
7.10 Evidentiary Hearing Report 7-42
Table of Contents v
-------
7.10.1 Evidentiary Hearing Report Selection Criteria
7.10.2 Evidentiary Hearing Report Output ....
11 Enforcement Action Report ...
7.11.1 Enforcement Action Report Selection Criteria
7.11.2 Enforcement Action Report Output
8.0
8. 1
8.
8.
8.
8.
8.
8.
8.2
8.3
8.4
8.
8.5
8.6
8.7
CONDUCTING AN INQUIRY SESSION IN COMMAND MODE
INQUIRY Commands
1.1 "?" Help Command
1.2 SELECTION Command
1.3 MORE TO SELECT Command
1.4 SORT command
1.5 DISPLAY command
1.6 TALLY Command
PROMPT ("P") Command
QUIT "Q" Command
Data Elements/Acronyms
4.1 Key data elements
INQUIRY Operators
Values
Producing a Report
A.O APPENDICIES
Appendix A. PCS User Commants
7-42
7-43
7-45
7-45
7-46
8-1
8-2
8-3
8-4
8-6
8-6
8-7
8-8
8-9
8-9
8-9
-10
-10
-11
-11
A-l
A-l
Table of Contents
vi
-------
3.30 Personal Assistance Link (PAL) Extract 3-29
3.31 Administrative Penalty Order . . 3-29
4.0 R«tr1«v»l Specification 4-1
4.1 Card Images 4-1
4.2 Retrieval Selection . . . • . . 4-1
4.2.1 Basic Argument 4-2
4.2.2 Qualified Argument 4-5
4.2.3 Comparison Argument 4-7
4.2.4 "OR" Statement . .. 4-9
4.3 Report Order 4-10
4.4 Report Outputs 4-14
4.4.1 Quick Look Report 4-17
4.4.1.1 Cluster Quick Look Report 4-18
4.4.1.2 Hierarchical Quick Look Report 4-20
4.4.1.3 Pretreatment Hierarchical Quick Look Report 4-25
4.4.1.4 Quick Look Options 4-27
4.4.2 Milestone Report 4-36
4.4.3 Facility Report 4-38
4.4.4 Compliance Forecast Report 4-39
4.4.5 Compliance Forecast With Violations Report . . 4-39
4.4.6 Limitation Summary Report . 4-40
4.4.7 Limitation Summary with Measurement Violations Re-
port 4-41
4.4.8 DMR Administrative Report 4-42
4.4.9 DMR Administrative Report By Parameter .... 4-42
4.4.10 DMR Summary Report 4-43
4.4.11 DMR Forecasting Report 4-44
4.4.12 Quarterly Noncompliance Report 4-45
4.4.13 Selective Quarterly Noncompliance Report . . . 4-45
4.4.14 Summary Quarterly Noncompliance Report For Manag-
ers 4-46
4.4.15 Coordinator's Quarterly Noncompliance Report . 4-47
4.4.16 Semi-Annual Statistical Summary Report .... 4-48
4.4.17 Violations Recognition Report 4-48
4.4.18 DMR Package 4-49
4.4.18.1 Two-Step DMR Creation . 4-50
4.4.18.2 One-Step DMR Creation 4-51
4.4.19 Mailing Labels . , 4-54
4.4.20 Sequential File Extract 4-56
4.4.21 Quick File Extract 4-58
4.4.22 Industrial User Compliance Report 4-62
4.4.23 POTW Implementation Compliance Report .... 4-63
4.4.24 POTW Enforcement Action Summary Report .... 4-65
4.4.25 Pretreatment Hierarchy (PH) Report 4-66
4.4.26 PCS Effluent Data Statistics 4-68
4.4.26.1 Report Types 4-69
4.4.26.2 EDS Parameters 4-71
4.4.26.3 Displaying Graphs Online 4-76
4.4.27 PCS Management Graphics 4-77
4.4.27.1 Displaying Graphs Online . . 4-79
4.4.28 Strategic Targeting Activities for Results System
Moving Base Rpt 4-79
Table of Contents
-------
4.4.29 Permit Compliance System Personal Assistance LI
Extract
4.4.30 Administrative Penalty Order Report . . . .
4.5 Multiple-Report Retrievals ...
4.6 Report Title
4.7 Option Card (00-Card)
4.7.1 SYNTAX-
4.7.2 JOBID-
4.7.3 BIN-
4.7.4 RMT-
4.7.5 COPIES-
4.7.6 PRTY-
4.7.7 TIME-
4.7.8 GPRT-
4.7.9 GDVCE-
4.7.10 GRMT-
4.7.11 GBOX-
4.7.12 LINES-
4.7.13 FORM-
4.7.14 Option Card Examples
4.8 JCL Card (09-Card)
5.1 Formatting and Ordering of Retrieval Records . .
5.1.1 Option Card (00-Card)
5.1.2 Title Line (01-Card)
5.1.3 JCL Card (09-Card) . .
5.1.4 Selection Statements (10-Card)
5.1.5 "OR" Statement (11-Card)
5.1.6 Report Type (20-Card) . .
5.1.7 Sort Statements (30-Card)
5.1.8 Quick Look Statements (40-Card)
5.1.9 Milestone Statements (50-Card)
5.1.10 Quick File Extract Statements (60-card) . .
5.2 Entering the Retrieval Cards into the Computer
5.2.1 Accessing the NCC - IBM Computer System . . .
5.2.2 Using TSO
5.3 Understanding the Generalized Retrieval Operation
5.5.1 PCSADMR
5.5.2 PCSPDMR ...
5.5.3 PCSADMRL
5.5.4 PCSPDMRL
5.5.5 PCSALBL
5.5.6 PCSALBLA
5.5.7 JCL for Preprinting DMRs
6.1 Single Line Quick Look Report
ink
4-81J
4-82
4-84
4-85
4-86
4-87
4-88
4-88
4-89
4-89
4-90
4-90
4-91
4-91
4-91
4-92
4-92
4-92
4-92
4-93
. . 5-1
. . 5-1
. . 5-1
. . 5-1
. . 5-2
. . 5-|
. . 5-1
. . 5-3
. . 5-3
. . 5-4
. . 5-4
. . 5-4
. . 5-5
. . 5-5
. . 5-5
. . 5-6
. . 5-7
. . 5-7
. . 5-8
. . 5-9
5-10
5-12
5-13
5-15
S-15
. . 6-1
. . 6-1
. . 6-1
. . 6-1
. . 6-2
6.5 Cluster Quick Look Report Using Qualifying Argument . 6-£
Table of Contents vT
-------
6.6 Single-line "Quick Look Report" Using the Absent Logical
Operator 6-2
6.7 Quick Look Report Using the Comparison Argument . . . 6-3
6.8 Quick Look Report with Expanded Data Values 6-3
7.0 Retrieval Selection Efficiency Considerations . . . . 7-1
A.O APPENDICIES Append-1
Appendix A. Figures . . . . A-l
Appendix B. Date Element Lists B-l
B.I Sorted by FILE and DATA ELEMENT NAME B-2
B.2 Sorted by FILE and DESCRIPTIVE HEADING B-49
Appendix C. Generalized Retrieval Error Messages C-l
Appendix 0. Telephone Numbers D-l
Appendix E. Sequential File Extract - File Layout .... E-l
Appendix F. PCS Graphic Samples F-l
F.I PCS Effluent Data Statistics F-2
F.2 PCS Management Graphics F-3
Appendix G. Ready Reference Guide G-l
Appendix H. PCS User Comments H-l
Table of Contents. vii
-------
PCS Edit/Update Error Messages
July 2, 1990
PCS USER SUPPORT
202/475-8529
U.S. EPA (EN-338)
401 M. St. SW
Washington, DC 20460
-------
TABLE OF CONTENTS
1.0 General Information . . 1-1
1.1 Error Message Categories . 1-1
1.2 Definition of Fatal* Warning, and Informational Messages 1-3
1.3 Description of information provided on Error Messages 1-3
2.0 Compliance Schedule Error Messages 2-1
3.0 Compliance Schedule Violation Error Messages .... 3-1
4.0 Enforcement Action Error Messages 4-1
5.0 Evidentiary Hearing Error Messages 5-1
6.0 Enforcement Action Key Error Messages 6-1
7.0 Grant Error Messages 7-1
8.0 Inspection Audit Error Messages ... 8-1
9.0 Inspection Error Messages 9-1
10.0 Inspection Scheduling Error Messages ....... 10-1
11.0 Measurement/Violation Error Messages 11-1
12.0 Permit Event Error Messages 12-1
13.0 Permit Facility Error Messages ... 13-1
14.0 Parameter Limits Error Messages 14-1
15.0 Pipe Schedule Error Messages 15-1
16.0 Pretreatment Performance Summary Error Messages . 16-1
17.0 Single Event Violation Messages . 17-1
18.0 Table Update Error Messages 18-1
19.0 Undefined Data Type Error Messages 19-1
A.O PCS User Comments A-l
Table of Contents iv
-------
-------
II.C.2
The "GREAT System" (General Record of Enforcement Actions Tracked), circa
1980. The GREAT System tracks EPA-issued Administrative Orders (AOs) and
Notices of Violation issued from the commencement of the system until
September 30, 1987. Requests for retrievals should be addressed to Mary
Gair, OWEP, FTS 475-8557. See also II.C.10.
-------
-------
II.C.3
# "PCS Data Element Dictionary", updated July 2, 1990 and "PCS Codes and
Descriptions Manual", updated June 9, 1989. Table of Contents only.
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PCS Data Elemant Dictionary
Document Number PCS-DD90-2.01
July 2, 1990
PCS USER SUPPORT
202/475-8529
U.S. EPA CEN-338)
401 M. St. SW
Washington, DC 20460
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TABLE OP CONTENTS
1.0 OVERVIEW 1-1
2.0 FORMAT FOR DATA ELEMENT ENTRIES 2-1
3.0 DATA ELEMENT. ENTRIES 3-1
4.0 GLOSSARY 4-1
A.O APPENDICIES Append-1
Appendix A. PCS User Comments A-l
Appendix I. Index Description 1-1
Index 1-2
Table of Contents . iv
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PCS Codes and Descriptions
Document Number PCS-CD88-1.01
December 19, 1988
PCS USER SUPPORT
202/475-8529
U.S. EPA (EN-338)
401 M. St. SW
Washington, DC 20460
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TABLE OP CONTENTS
1.0 PCS .Coda and Description Tables 1
1.1 Instructions for Obtaining Tables 1
1.1.1 Printing this Manual 1
1.1.2 Printing SELECTED Tables 2
1.2 Code and Description Tables 3
Table of Contents i i i
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II.C.4.
"NPDES Self-Monitoring System User Guide", dated January 1985. Table of
Contents only.
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NPDES SELF-MONITORING SYSTEM
USER GUIDE
Office of Water
Office of Water Enforcement and Peralts
January 1985
U.S. Environmental Protection Agency
EN-338
401 M Street S.W.
Washington, D.C. 20460 ••
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NPDES
Self-Monitoring System
User Guide
Concents Page
Introduction 1
NPDES Program Authority 1
Legal Authority for NPDES Monitoring of Discharges 2
Inspection of NPDES Permittee Facilities 3
Meeting Permit Requirements 3
Organizing a Self-Monitoring Program 5
Elements of a Self-Monitoring System 5
Discharge Monitoring Reports (DMRa) 10
Discharge Monitoring Report - Instructions for Completion 14
Checklist for Self-Monitoring 24
Self-Monitoring System User Guidei January 1985
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II.C.5,
"Release and Description of Significant Violator Lists", dated March 8,
1984.
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0
/ ** /i UN|TED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. D.C. 20460
MAR 8 1984
rict o>
-M AND
COMIIANft
MEMORANDUM
SUBJECT: Release and Description of "Significant Violator" Lists
FROM: Gerald A. Bryan, DirectorJ^^J. ¥^f
Office of Compliance Analysis and Program Operations
TO: Regional Enforcement Contacts
EPA has begun to receive requests from parties outside
the Agency for the lists of "significant violators" each
program area is developing for tracking in the Agency's
management systems.
Unless the facts pertaining to a specific situation
merit otherwise, EPA will release these lists upon request.
In order to avoid confusion or misunderstanding about the
meaning or significance of these lists, we are suggesting
that EPA personnel describe the lists in a manner consistent
with the following:
"EPA's list of significant violators" is a compilation
of regulated entities which, based on available infor-
mation, EPA believes are in violation of environmental
laws or regulations and which EPA believes merit high
priority attention. EPA's managers use the lists to
reflect Agency priorities for tracking their progress
towards compliance."
«° rn
3 °
*
ro
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OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING
Principal Regional Enforcement Contacts
Telephone
Region Name Title Number
I Paul Keough Deputy Regional Administrator 223-7210
II Doug Blazey Regional Counsel 264-1018
III Stan Laskowski Deputy Regional Administrator 597-9812
IV John (Alex) Little Deputy Regional Administrator 257-4727
V Alan Levin Deputy Regional Administrator 353-2000
Dave Ullrich Deputy Regional Counsel 353-2094
VI Dick Whittington Regional Administrator 729-2600
VII William Rice Deputy Regional Administrator 758-5495
VIII Kerry Clough Chief of Staff 327-3895
IX John Vise Deputy Regional Administrator 454-8153
X Ed Coate Deputy Regional Administrator 399-1220
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EPA personnel should avoid giving the impression that .
parties on the list necessarily have been adjudicated to be
in violation or have agreed that they are in violation of
environmental requirements. Of course, planned or proposed
enforcement actions or strategies against specific facilities
should not be released.
Only lists which are comprised of those violators
tracked in EPA's Strategic Planning and Management System
(SPMS) should be characterized as EPA's "official" significant
violators list. In addition, tabulations of actions taken
against these parties should be characterized as "official"
only if those tabulations are obtained from reports submitted
as part of SPMS.
• If you have any questions regarding the points raised in
this memo, please feel free to give me a call at (FTS) 382-4140,
cc: (.^fssociate Enforcement Counsel
'OECM Office Directors
Program Compliance Office Directors
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II.C.6,
"PERMIT COMPLIANCE SYSTEM (PCS) POLICY STATEMENT", dated October 31, 1985.
(appendices updated March 23, 1988)
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> A
feSB
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I WASHINGTON. D.C. 20460
OCT3I 1985
OFFICE OF
WATER
MEMORANDUM
SUBJECT: Permit Compliance System (PCS) Policy Statement
FROM: Lawrence J. Jensen *Q
Assistant Administrator for Water (WH-556)\^«
TO: Regional Water Management Division Directors
Regions I - X
I am pleased to issue the attached policy statement on the
Permit Compliance System (PCS).- This policy statement represents
an important step in the continuing effort to support a reliable
and effective automated information system for the National Pollutant
Discharge Elimination System (NPDES) program.
PCS "is the national data base for the NPDES program. It
serves as the primary source of NPDES information for EPA, NPDES
States, Congress, and the public. The use and support of PCS by
EPA Regions and NPDES States are crucial to the effectiveness and
proper oversight of the NPDES program. This policy statement
establishes for EPA and NPDES States the key management practices
and resoonsibilities central to PCS' ability to contribute to the
overall integrity of the NPDES program and the achievement of our
long-term environmental goals. One of the requirements is to have
Regions and States enter all required data into PCS by September 30,
1986 (see Attachment 1 of the PCS Policy Statement). While, the aim
of the policy is a consistent approach across Regional and State
NPDES programs, it retains flexibility for Regions and States to
tailor agreements to the unique conditions of each State.
The PCS Policy Statement is effective immediately. The Office
of Water Enforcement and Permits will monitor implementation of the
policy statement and issue special instructions as necessary.
Regional Water Management Division Directors and their State coun-
terparts are responsible for ensuring that their staffs receive suf-
ficient support to apply the principles of the policy to their PCS
activities. . .
I look forward to a strong commitment to this policy statement
by EPA and State NPDES programs. You can be assured of my full
support as EPA and the States move-forward with its implementation.
Attachments
cc: Administrator
Deputy Administrator
State Directors
PCS Steering Committee
PCS Users Group _^l
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PERMIT COMPLIANCE SYSTEM POLICY STATEMENT
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
STATEMENT OF POLICY
It is EPA policy that the Permit Compliance System (PCS) shall
be the national data base for the National Pollutant Discharge
Elimination System (NPDES) program. All EPA Regions must use PCS
directly, and all NPDES States must either use PCS directly or
develop and maintain an interface.
As our primary data source, PCS will promote national consis-
tency and uniformity in permit and compliance evaluation. To
achieve national consistency and uniformity in the NPDES program,
the required data in PCS must be complete and accurate. Facility,
permits (i.e., events and limits), measurement, inspection, com-
pliance schedule, and enforcement action data are required. These
required data elements are further defined in Attachments 1 and 2.
They comprise the Water Enforcement National Data Base (WENDB)
which has been redefined as the core of information necessary to
enable PCS to function as a useful operational and management tool
and so that PCS can be used to conduct oversight of the effective-
ness of the NPDES program.
All required data for NPDES and non-NPDES States must be
entered into PCS by September 30, 1986 and maintained regularly
thereafter. This will require Regions and States to start entering
data as early as possible, and not wait until late FY 1986.
By the end of FY 1986, direct users of PCS shall establish,
with Office of Water Enforcement and Permits (OWEP) assistance,
a Quality Assurance program for data in PCS. The program shall
define:
0 monthly measurement of the level of data entered;
0 appropriate time frames to ensure that data are entered
in PCS in a timely manner; and
0 nationally consistent standards of known data quality
based on proven statistical methods of quality assurance.
PCS Quality Assurance shall address the completeness (for
assurance of full data entry) and accuracy of the data
entered into PCS.
Adoption of PCS by States should be formalized in each
State's $106 Program Plan, State/EPA Agreement, or in a separate
agreement. Each plan should clearly define EPA's and the NPDES
State's responsibilities regarding PCS. The Key Management
Practices in this Policy Statement should be incorporated into
the §106 Program Plan.
.C"
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BACKGROUND
When the PCS Steering Committee met in March 1985, EPA
Regional representatives stressed the essential need for a positive
statement from EPA Headquarters management to Regional and State
management specifically requiring the support and use of PCS.
Lack of such support may result in an incomplete and unreliable
data base. With sufficient EPA Headquarters, Regional, and State
support, however, PCS will come to serve several major purposes
for the NPDES program:
0 PCS will provide the overall inventory for the NPDES program.
0 PCS will provide data for-responding to Congress and the
public on the overall status of the NPDES program. As
such, it will serve as a valuable tool for evaluating the
effectiveness of the program and the need for any major
policy changes.
0 PCS will encourage a proper EPA/State oversight role by iden-
tifying all major permittee violators.
0 PCS will offer all levels of government an operational and
management tool for tracking permit issuance, compliance,
and enforcement actions.
This PCS Policy Statement is a result of the Steering Committee
meeting. It is a clear message to Regional and State management
that PCS is the primary source of NPDES information, and as
such, it is to be supported wholeheartedly by all users of PCS.
The PCS Steering Committee meeting also resulted in a
redefinition of WENDB and ratification thereof. WENDB is the
minimum standard of data entry which will allow PCS to function
as a useful operational and management tool (see Attachments 1
and 2). EPA Regions agreed that all WENDB elements will be
entered into PCS by September 30, 1986, and maintained regularly
thereafter. . .
Once the required data are entered into and regularly main-
tained in PCS, PCS will assist permits and compliance personnel
in many of their operational and management responsibilities.
PCS will greatly reduce reporting burdens for such activities
as the Strategic. Planning and Management System (SPMS), and it
will reduce efforts needed for effective compliance tracking at
both Regional and State levels. Also, substantial automation of
the Quarterly Noncompliance Report (QNCR) will save time and
resources.
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IMPLEMENTATION STRATEGY
Key Management Practices
To effectively implement and uphold this PCS Policy Statement
and enhance PCS' capabilities, there are certain key management
practices that must be implemented:
0 The following milestones have been established to facilitate
the entry of all reouired data by the end of FY 1986:
All required National Municipal Policy (NMP) data must be
entered into PCS by October 31, 1985 (See Attachment 1).
All required data for non-NPDES States must be entered
into PCS by March 31, 1986.
e NPDES permits shall be enforceable and tracked for compli-
ance using PCS. The Office of Water Enforcement and
Permits (OWEP) recognizes there may be situations where
permit limits and monitoring conditions are not initially
compatible with PCS data entry and tracking. In these
cases, Regions should ensure that appropriate steps are
taken by the permit writer to identify difficult permits
to the PCS coder, and to mutually resolve any coding
issues. The Regions should work closely with their NPDES
States using PCS, to address similar data entry problems
with State-issued NPDES permits.
0 WENDB is the minimum standard of data entry for PCS (see
the attached lists of data requirements). If States and
Regions wish to enter NPDES data beyond what has been required,
they may do so. For example, if States want to enter
Discharge Monitoring Report (DMR) data for minor facilities,
the option is available in PCS and the States' may use it
as their resources allow. EPA will ensure that sufficient
computer space is available for the currently projected
use of PCS.
0 All DMRs submitted to EPA Regional Offices (including DMRs
submitted by NPDES States for EPA entry into PCS) must be
preprinted using the Office of Management and Budget (OMB)
approved DMR form. NPDES States directly using PCS are
not required to use the OMB-approved form; however, its
use is strongly encouraged. With the continuing demand
for more complete information and with stable, if not
diminishing, data entry resources, it is to EPA's and
NPDES States' benefit to preprint DMRs. The use of pre-
printed DMRs will greatly reduce PCS' data entry burden,
making available resources to be used in other areas
(e.g., PCS quality assurance, data entry for other PCS
records, etc.).
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-4-
0 The frequency with which DMRs are submitted to the EPA or
NPDES State is important for ensuring timely entry of
data into PCS and timely review of permittee's compliance
status. Quarterly, semi-annual, or annual submission of
DMRs creates a major data entry burden and impedes the
compliance evaluation process. As a result, the useful-
ness of DMR data for compliance evaluation decreases
substantially. Monthly submittal of DMRs alleviates this
problem rand enhances PCS' effectiveness significantly. It
is recommended that monthly submittal of DMRs be incorpo-
rated into major permits as they are reissued. With approx-
imately 20 percent of the permits reissued each year, it
will take five years to complete the transition to monthly
submittal for all major permittees.
0 EPA Regions should coordinate with their respective States
to develop strategies that describe each State's plans to
either use PCS directly or develop an interface. These
strategies should include the rationale for selecting one
of these methods of data entry into PCS, an outline of all
requirements necessary for implementing the selected
method, the mechanisms to be used to supply sufficient
resources, and a schedule for attainment not to exceed
September 30, 1986. If a State is a current user of PCS
via one of these methods, the strategy should describe its
needs for enhancing its PCS usage or improving its PCS
interface, the mechanisms to be used to7supply sufficient
resources, and a schedule for attainment not to exceed
September 30, 1986.
0 When writing or revising a Memorandum of Agreement (MOA),
the Region and State should specify the State's intent to
use or interface with PCS. The MOA should address the
rationale for selecting one of these selected methods of
data entry into PCS, an outline of all requirements neces-
sary for implementing the selected method, the mechanisms
to be used to supply sufficient resources, and a schedule
for attainment.
Responsibilities
Office of Water Enforcement and Permitsi It is OWEP's full
responsibility to maintain the structure (i .e. , the computer
software) of PCS and to operate the system. OWEP will continue
to support time-sharing funds needs, training, and the necessary
resources to continue the operation of PCS. OWEP will work with
the EPA Regions a'nd NPDES States to continually evaluate and
improve, where feasible, the system's software, time-share funding,
operation, and maintenance. OWEP will maintain a Steering Commit-
tee and User Group, organize the national meetings, and work
closely with the Regional and State representatives on major
decisions related to PCS.
OWEP will oversee the Regions' and States' progress in
fulfilling this policy statement by assessing the quantity of
data entered each quarter.
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EPA Regions and NPDES States; It is the EPA Regions' and
NPDES States' full responsibility to maintain the infrastructure
of PCS by accurately entering data in a timely manner. Also, EPA
Regions and NPDES States are responsible for participating in PCS
Workgroups and contributing to improvements to PCS.
Three National PCS meetings are held each year, one for the
Steering Committee and two for the PCS Users Group. EPA Regions
are expected to attend all three meetings. NPDES States directly
using PCS are invited to attend the State portions of these
meetings. More meetings may be scheduled during the year if
necessary.
Since consistent and objective compliance tracking is a
central component of an effective and credible enforcement program,
NPDES States are strongly urged to use PCS directly. We realize,
however, that there may be some cases where NPDES States cannot
use PCS directly. In these instances, in accordance with §123.41
of the regulations, EPA requests from the States all required
information (as indicated in the attachments) for entry into PCS.
This can be achieved one of two ways:
0 A State Automated Data Processing (ADP) interface can be
developed. It is the EPA Region's responsibility to work
with the NPDES State to develop an effective State ADP
interface. The State, however, should take the lead in
developing the interface and work closely with the Region
to ensure the interface is effective. It should be realized
that system interfaces are often troublesome and unwieldy;
they are often ineffective and limit the States' flexibility
to change their systems quickly to meet management needs.
In the event a State ADP interface is developed, there
must be formal agreement that the State will operate the
interface, maintain the interface software, and be fully
responsible for making any changes to the interface based
on changes made to its automated data base. This will
ensure that the NPDES State will be held responsible for
system compatibility. If the State does not accept full
responsibility with system compatibility, then changes
must not be made to the State system without the prior
knowledge of EPA. The State is responsible for ensuring
that the data are transferred to PCS in a timely manner,
accurately, and completely. Interfaces must be developed
and maintained so that they operate with maximum efficiency
all of the time.
0 OWEP recognizes that FY 1986 will be a transition year for
PCS. NPDES States will begin using PCS or will develop
interfaces. In the event that neither of these alternatives
is accomplished by the end of FY 1986, in accordance with
the FY 1986 Guidance for the Oversight of NPDES Programs,
the State will be responsible for submitting all required
information (as indicated in the attachments) in hard
copy format. The data must be submitted either already
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coded onto PCS coding sheets or in a format that can be
readily transferred onto PCS coding sheets. Also, the data
must be submitted at regular intervals to ensure timely
entry into PCS. Once the data are received by EPA, it is the
EPA Region's responsibility to enter the.data into PCS in a
timely manner.
Funding
0 §106 grant funds may be used for interface software develop-
ment. However, they cannot be used for maintenance of the
interface software for State-initiated changes to a State
ADP system or for the operation and maintenance of a separate
State ADP system.
0 §106 grant funds may be used for State data entry if and
only if the State uses PCS directly or the State provides
data to PCS via an interface that meets the standards of
this policy.
0 If requested by a State, EPA will agree to pay for its
time-sharing costs to implement this policy, within given
resources.
0 Headquarters will continue to pursue alternative methods of(
reducing the data entry burden on Regions and States. '
Date*r Assistant Admi/Ist/ator for Water
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ATTACHMENT 1
REQUIRED DATA TO BE ENTERED INTO PCS
Information Type^ Majors Minor 92-500s Other Minors
Permit Facility Data XX X
Permit Event Data XX X
Inspection Data XX X
Parameter Limits and X
Pipe Schedule Data
Compliance Schedule X X
Da ta
DMR Measurement Data X
Significant Noncompliance X
Flag
Enforcement Action Data X
(Enforcement Action Data,
Compliance Schedule Data,
and Interim Limits Data
from all active formal
enforcement actions)
Enforcement Action Data X
(Type Action, ENAC;
Issue Date, ENDT; and
Date Compliance Required,
ERDT; from all active
formal enforcement
actions)
Pretreatment Approval2 X X X
National Municipal Policy XX X
Data3
*For each of the categories listed in this chart, the Information
Type is the set of core data elements listed in Attachment 2.
^Pretreatment Program Required Indicator, PRET; one data element.
3A11 required data as described in May 16, 1985 memorandum on
National Municipal Policy Tracking in PCS. This includes
Facility User Data Element 6 (RDF6), Compliance Schedule and
Enforcement Action information.
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ATTACHMENT 2
WATER ENFORCEMENT NATIONAL DATA BASE (WENDB) ELEMENTS
Data Element Name
COMMON KEY
NPDES Number
COMPLIANCE SCHEDULE RECORD
Compliance Schedule Number
Data Source Code
Compliance Actual Date
Report Received Date
Schedule Date
Schedule Event Code
Compliance
Compliance
Compliance
.COMPLIANCE VIOLATION RECORD
*Compliance Violation Date
^Violation Compliance Event Code
*Compliance Violation Code
*Significant Non-Compliance Code
(Compliance)
*Significant Non-Compliance Date
(Compliance)
*Violation Compliance Schedule
Number
*Violation Data Source Code
ENFORCEMENT ACTION RECORD
Enforcement Action
Achieved Date
Enforcement Action
Enforcement Action
Enforcement Action
Enforcement Action
Enforcement Action
Enforcement Action
Violation Code
Enforcement Action
Violation Date
Enforcement Action
Number
Enforcement Action
Enforcement Action
Enforcement Action
Enforcement Action
Due Date
Enforcement Action
Enforcement Action
Enforcement Action
Enforcement Action
Number
Response
Comment Line 1
Comment Line 2
Comment Line 3
Comment Line 4
Comment Line 5
Compliance
Compliance
Modification
Code
Date
Status Code
Response
Status Date
Season Number
Source Code
Discharge
Acronym
NPID
CSCH
DSCD
DTAC
DTRC
DTSC
EVNT
CVDT
CVEV
CVIO
SNCC
SNDC
VCSN
VDCD
EADR
ECM1
ECM2
ECM3
ECM4
ECM5
ECVC
ECVD
EMOD
ENAC
ENDT
ENST
ERDT
ESDT
ESEA
EVCD
EVDS
w Usually generated by PCS; can be manually entered
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WENDB ELEMENTS
(Continued)
Data Element Name
Enforcement
Enforcement
Alphabetic
Enforcement
Enforcement
Enforcement
Code
Enforcement
Enforcement
Enforcement
Action Event Code
Action Limit Type-
Action Monitoring Date
Action Monitoring Location
Action STORET Parameter
Action Discharge Designator
Action Compliance Schedule
Action Violation Type
EVIDENTIARY HEARING RECORD
Evidentiary Hearing Event Date
Evidentiary Hearing Event Code
INSPECTION RECORD
Inspection Date
Inspector Code
Inspection Type
MEASUREMENT VIOLATION RECORD
Measurement
Measurement
Measurement
Measurement
Measurement
Concentration Average
Concentration Minimum
Concentration Maximum
Quantity Average
Quantity Maximum
Violation Date (Measurement)
No Discharge Indicator
*Significant Non-Compliance Code
(Measurement)
*Significant Non-Compliance Date
(Measurement)
Violation Measurement Designator
Measurement Discharge Number
Violation Monitoring Location
Violation STORET Parameter
PARAMETER LIMITS RECORD
Change of Limit Status
Contested Parameter Indicator
Modification Period End Date
Modification Period Start Date
Concentration Average Limit
Concentration Minimum Limit
Concentration Maximum Limit
Concentration Unit Code
Quantity Average Limit
Acronym
EVEV
EVLM
EVMD
EVML
EVPR
EVRD
EVSN
EVTP
EHDT
EHEV
DTIN
INSP
TYPI
MCAV
MCMN
MCMX
MQAV
MQMX
MVDT
NODI
SNCE
SNDE
VDRD
VDSC
VMLO
VPRM
COLS
CONP
ELED
ELSD
LCAV
LCMN
LCMX
LCUC
LQAV
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WENDB ELEMENTS
(Continued)
Data Element Name
Quantity Maximum Limit
Quantity Unit Code
Limit Type - Alphabetic
Monitoring Location
Modification Number
Limit Discharge Number
Limit Report Designator
STORET Parameter Code
Season Number
Statistical Base Code
PERMIT EVENT RECORD
Permit Tracking Actual Date
Permit Tracking Event Code
PERMIT FACILITY RECORD
River Basin
City Code
County Code
Type Permit Issued - EPA/State
Federal Grant Indicator
Final Limits Indicator
Average Design Flow
Facility Name Long
Facility Inactive Code
Major Discharge Indicator (Entered
by EPA Headquarters)
Pretreatment Program Required
Indicator
SIC Code
Type Ownership
National Municipal Policy
Tracking Indicator
Significant Noncompliance Flag for
P.L. 92-500 Minor Facilities
PIPE SCHEDULE RECORD
Report Designator
Discharge Number
Final Limits End Date
Final Limits Start Date
Interim Limits End Date
Interim Limits Start Date
Initial Limits End Date
Initial Limits Start Date
Number of Units in Report Period
Number of Units in Submission Period -
EPA
Number of Units in Submission Period -
State
Acronym
LQMX
LQUC
LTYP
MLOC
MODN
PLDS
PLRD
PRAM
SEAN
STAT
PTAC
PTEV
BAS6
CITY
CNTY
EPST
FDGR
FLIM
FLOW
FNML
IACC
MAD I
PRET
SIC 2
TYPO
RDF 6
(To Be Created)
DRID
DSCH
FLED
FLSD
MLED
MLSD
ILED
I LSD
NRPU
NSUN
NSUS
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WENDB ELEMENTS
(Continued)
Data Element Name
Pipe Inactive Code
Report Units
Initial Report Date
Initial Submission Date
Initial Submission Date
Submission Unit - EPA
Submission Unit - State
State
EPA
Acronym
PIAC
REUN
STRP
STSS
STSU
SUUN
SUUS
NOTE: Additional data elements subject to approval:
Frequency of Analysis FRAN
Sample Type SAMP
Compliance Schedule File Number CSFN
Enforcement Action File Number ERFN
Permit Limits File Number LSFN
Inspection Comments (First ICOM
Three Characters for the
Number of Industrial Users
Inspected)
Facility Inactive Date IADD
Reissuance Control Indicator RCIN
Pipe Inactive Date . PIDT
Total:
plus additional data elements:
New total:
111 WENDB
i- _ 9_ data
120 WENDB
elements
elements
elements
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
MAR 231988
OP net OF
MEMORANDUM *ATI"
SUBJECT: Update of PCS Policy Statement/WENDB Data Elements
*
FROM: J. William Jordan, Director A*
Enforcement Division (EN-338) £7+
TO: Regional Water Management Division Directors
•
Since the Permit Compliance System (PCS) Policy statement was
issued by Assistant Administrator Larry Jensen on October 31, 1985,
additional Water Enforcement National Data Base (WENDB) data
elements have been added to track key pretreatment (Pretreatment
Permits and Enforcement Tracking System - PPETS) and administrative
penalty order activities. Only three of the administrative penalty
WENDB data elements listed in my previous memorandum on administrative
penalty tracking are currently included. In each case we established
task forces of EPA and, in the case of PPETS, State representatives
to develop several options for new WENDB data elements. Regional
(and State for PPETS) comments were received on numerous occasions
before developing final lists.
Attached is an addendum to the PCS Policy statement which
includes these new WENDB data elements (i.e., hose data elements
that are required to be entered into PCS). The PPETS WENDB elements
are required for both EPA and NPDES states. Administrative penalty
order elements are required only for EPA actions. If new WENDB data
elements are needed for new initiatives, EPA Regions and the States
will be asked to participate in determining appropriate WENDB
elements. After this process, updated WENDB lists will again be
forwarded to you.
Please make sure your States receive a copy of this memorandum.
Call me (PTS-475-8304) or Roger Hartung, Acting Chief compliance
Information and Evaluation Branch (FTS-475-8313) if there are
questions. Questions on WENDB elements can be directed to Dela Ng
(FTS-475-8323) on Roger's staff.
Attachment
cc: Jim Elder
Glenn Unterberger
Martha Prothro
Regional Compliance Branch Chiefs
Regional PCS Contacts
. Regional Pretreatment Coordinators
i--.
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»iPPENDIX 3
REQUIRED DATA TO BE ENTERED INTO PCS
Minor* Other4
Informatron^Type1 Majors 95-500's Minor
Permit Facility Data X x x
Permit Event Data X X x
Inspection Data X X x
Parameter Limits and
Pipe Schedule Data X
Significant Compliance Data X X
Compliance Schedule Data X X
DMR Measurement Data X
Enforcement Action Data X
(Enforcement Action Data,
Compliance Schedule Data,
and Interim Limits Data
from all active formal
enforcement actions and
Enforcement Action Data
for all active informal •
enforcement actions)
Enforcement Action Data .X . '
from all active informal
and formal enforcement
actions
Pretreatment Approval x X* X*
National Municipal Policy X XX
Data3
Single Event Violation X X* X4
Data
Pretreatment Compliance X X4 X4
Inspection (PCD/Audit
Pretreatment Performance X X4 X4
Summary
For. each of the categories listed in this chart, the Information Tvoe
is the set of core date elements listed in Attachment II.
Pretreatment Program Required Indicator, PRET; one data element.
All reauired data as described in May 16, 1985 memorandum on National
Municioal Policy Tracking in PCS. This includes NPFF, NPSC, NPSQ,
PDC2', Compliance Schedule and Enforcement Action information.
The following information types are only for minor POTWs which are
pretreatment control authorities: pretreatment aporoval, sinale event
violation data, pretreatment compliance inspection (PCI)Xaudit, and
pretreatment performance summary.
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APPENDIX €
WATER ENFORCEMENT NATIONAL DATA BASE (WENDB) ELEMENTS
data Element Name Acronym
COMMON KEY
NPDES Number
COMPLIANCE SCHEDULE RECORD
Compliance Schedule Actual Date
Compliance Schedule Date DTSC
Compliance Schedule Event Code EVNT
Compliance Schedule File Number CSFN
Compliance Schedule Number CSCH
Compliance Schedule Report Received Date DTRC
Compliance Schedule User Data Element2 RDC2
Data source code DSCD
COMPLIANCE VIOLATION RECORD*
Compliance Schedule Violation Code CVTO
Compliance Schedule Violation Date . CVDT
Compliance Schedule Violation Event Code CVEV
Compliance Violation Compliance Schedule Number VCSN
Compliance Schedule Violation Data Source Code VDCD
jpNCR Compliance Schedule Violation Detection Code SNCC
'QNCR comoliance Schedule Violation Detection Date SNDC
QNCR compliance Schedule Violation Resolution Code SRCC
QNCR Compliance Schedule Violation Resolution Date SPDC
ENFORCEMENT ACTION RECORD
Enforcement Action Code (includes administrative penalty orders)2 ENAC
Enforcement Action Comment ECMT
Enforcement Action Compliance Schedule Violation Code ECVC
Enforcement Action Compliance Schedule Number EVSN
Enforcement Action Compliance Schedule Violation Date ECVD
Enforcement Action Data Source Code EVCD
Enforcement Action Date ENDT
NOTE: See last page for listing of footnotes
- 1 -
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APPENDIX C
WENDB ELEMENTS
Data Element Name Acronym
••'•..
Enforcement Action Discharge Number EVDS
Enforcement Action Event Code EVEV
Enforcement Action Pile Number ERFN
Enforcement Action Limit Type-Alphabetic EVLM
Enforcement Action Modification Number EMOD
Enforcement Action Monitoring Date EVMD
Enforcement Action Monitoring Location EVML
Enforcement Action Parameter Code EVPR
Enforcement Action Report Designator EVRD
Enforcement Action Response Due Date ERDT
Enforcement Action Season Number ESEA
Enforcement Action Status Code ENST
Enforcement Action Status Date ESDT
Enforcement Action Violation Type EVTP
Enforcement Action Code - Violation Key3 EKAC
Enforcement Action Date - Violation Key3 EKDT
Enforcement Action Type Order Issued EPA/State Violation Key3 EKTP
Enforcement Action Single Event Violation Code3 . ESVC
Enforcement Action Single Event Violation Date3 ESVD
Enforcement Action Type Order Issued EPA/State3 EATP
EVIDENTIARY HEARING RECORD • • .
Evidentiary Hearing Event Code4 • EHEV
Evidentiary Hearing Event Date EHDT
INSPECTION RECORD
Inspection Date DTIN
Inspector Code • INSP
Inspection Type TYPI
Inspection Comments (First three characters for ICON
Industrial User pretreatment inspections)
.'OTE: See last page for listing of footnotes
- 2 -
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APPENDIX C
WENDB ELEMENTS
•*.
Data Element Name Acronym
•SASUREMEOT VIOLATION RECORD
Measurement/Violation concentration Average
Measurement/Violation Concentration Minimum
Measurement/Violation Concentration Maximum
Measurement/Violation Quantity Average MQAV
Measurement/Violation Quantity Maximum MQMX
Measurement/Violation Discharge Number VDSC
Measurement/Violation Monitoring Location VMLO
Measurement/Violation Monitoring Period End Date MVDT
Measurement/Violation Parameter VPRM
Measurement/Violation Report Designator VDPD
No Discharge Indicator NODI
QNCR Measurement Violation Detection Code1 SNCE
QNCH Measurement Violation Detection Date1 SNDE
QNCR Measurement Violation Resolution Code1 SRCE
QNCR Measurement Violation Resolution Date1 SRDE
PARAMETER LIMITS RECORD
' ange of Limit Status - • COLS
«-centration Average Limit LCAV
centration Maximum Limit LCMX
centration Minimum Limit LCMN
Concentration Unit Code LCDC
Contested Parameter Indicator CONP
Limit Discharge Number PLDS
Limit File Number PLFN
Limit Report Designator PLRD
Limit Type - Alphabetic LTYP
Modification Number MODN
Modification Period End Data ELED
Modification Period start Date ELSD
Monitoring Location MLOC
Parameter Code . PRAM
Quantity Average Limit LQAV
Quantity Maximum Limit LQMX
Quantity Unit Code LQOC
Season Number SEAN
Statistical Base Code STAT
NOTE: See last page for listing of footnotes
- 3 -
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APPENDIX C
WENDB ELEMENTS
PQffIT EVENT RECORD
Perwit Track ina Actual Date PTAC
Permit Tracking Event Code^ PTEV
PEPMIT FACILITY RECORD
Average Design Flow FLOW
City Code " CITY
County Code CNTY
Facility Inactive Code . IACC
Facility Inactive Date IADT
Facility Name Long FNML
Federal Grant Indicator FDGR
Final Limits Indicator FLIM
Major Discharge Indicator (Entered by EPA Headquarters) MADI
NMP Final Schedule6 NPSC
NMP Financial Status6 NPFF
NMP Schedule Quarter6 NPSQ
Pretreatment Program Reouired Indicator PRET
QNCR Status Codei Current Year (Manual)7 CYMS
Reissuance Control Indicator RCIN
River Basin (first four characters) BAS6
SIC Code . SIC2
Type of Permit Issued - EPA/State . FPST
Type of Ownership TYPO
PIPE SCHEDULE RECORD
Discharge Number DSCH
Final Limits End Date FLED
Final Limits Start Date FLSD
Initial Limits End Date ILED
Initial Limits Start Date ILSD
Initial Report Date STRP
Initial Submission Date - EPA STSO
Initial Submission Date - State STSS
Interim Limits End Date MLED
Interim Limits Start Date MLSD
Number of Units in Reporting Period NRPU
Number of Units in Submission Period - EPA NSUN
Number of Units in Submission Period - State NSUS
NOTE: See last page for listina of footnotes
- 4 -
—)
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APPENDIX C
WENDB ELEMENTS
Data Element Name Acronym
PIPE SCHEDULE RECORD (continued)
Pipe Inactive Code . PI AC
Pipe Inactive Date - PIDT
Report Designator DPID
Reporting Units RENU
Submission Unit - EPA SUUN
Submission Unit - State SUUS
SINGLE EVENT VIOLATIONS DATA ELEHENTS3
Single Event Violation Code SVCD
Single Event Violation Date SVDT
QNOR Single Event Violation RNC Detection Code SNCS
QNCR Single Event Violation RNC Detection Date SNDS
QNCR Single Event Violation RNC Resolution Code SRCS
QNCR Single Event Violation RNC Resolution Date SPDS
PRETREATMENT PERMITS AND ENFORCEMENT TRACKING SYSTEM (PPETS)
SOURCE - PRETREATMENT COMPLIANCE INSPECTION (PCI)/AUDIT
Adoption of Technically-based Local Limits ADLL
fcategorical Industrial Users CIUS
technical Evaluation for Local Limits EVLL
SIUS in SNC with Self-Monitoring MSNC
Significant Industrial Users Without Control Mechanisms NOCM
SIUS Not Inspected or Sampled NOIN
SIUS in SNC with Pretreatment Standards or Reporting PSNC
Date Permit was Modified to Require Pretreatment Implementation PTIM
Significant Industrial Users " SIUS
SIUS in SNC with Self-Monitoring and Not Inspected or Sampled SNIN
Pa/Audit Date DTIA
SOURCE - PRETREATMENT PERFORMANCE SUMMARY
Formal Enforcement Actions Excluding Civil and Criminal
Judicial Suits FENP
Industrial Users Prom Which Penalties Have Been Collected IUPN
Civil or Criminal Suits Piled Against SIUS JUDI
SIUS in SNC with Pretreatment Compliance Scheduled SSNC
SIUS with Significant Violations Published in Newspaper SVPU
Pretreatment Performance Summary Start Date . PSSD
Pretreatment Performance Summary End Date PSED
NOTE: See last page for listing of footnotes
- 5 -
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Listino of Footnotes
1. These data elements are automatically generated by PCS unless the user wishes to
enter them manually.
2. This data element is required for both informal and formal enforcement action coci-j
(when applicable). This includes administrative penalty orders.
3. These data elements were added at the reouest of the PCS Steering Committee at the
1986 meeting.
4. There are seven (7) reouired evidentiary hearing event codes (when applicable).
They are as follows:
01099 Date Granted 10099 Date ALJ Decision Rendered
06099 Date Hearing Scheduled 11099 Date Appealed to Administrator
07099 Date Requested (EPA issued permits only)
08099 Date settled
09099 Date Denied
5. There are thirteen (13) required oermit event codes (when applicable.)
They are as follows:
P1099 Application Received P6599 Reopener . P7499 301 (k) Variance
P3099 Draft Permit/Public Notice P7099 Stays P7599 316 (a) Variance
P4099 Permit Issued . P7199 301 (c) Variance P7699 316 (b) Variance *
P5099 Permit Expired P7299 301 (g) Variance P7799 Fundamental Differe^
Factors Variance
30099 Permit Modified
6. These data elements are previously approved National Mur :ipal Policy (NMP)
data elements.
7. Reouired for P.L. 92-500 minors.
- 6 -
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II.C.7,
"GUIDANCE FOR PREPARATION OF QUARTERLY AND SEMI-ANNUAL NONCOMPLIANCE
REPORTS", March 13, 1986, with transmittal letter. Table of Contents.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAR 13 1986 OFF.CEOF
WATER
MEMORANDUM
SUBJECT: Transmittal of the Final Quarterly Noncompl iance Report
FROM: Rebecca W. Hanmer, Director
Office of Water Enforcement and Permits CEN-335)
TO: Water Management Division Directors
Regions I - X
The Quarterly Noncompliance Report (QNCR) Guidance is attached
(Attachment A) in final form reflecting comments on the draft. As
you know, we held three national training sessions to acquaint the
QNCR preparers with the new regulatory requirements and elicit
additional questions not answered by the draft QNCR Guidance. The
major change from the draft is the resolution of permit effluent
violations. Permit effluent violations were resolved in the draft
QNCR Guidance when a facility no longer met the pattern of
noncompliance criteria for reportable effluent violations. These
criteria were two monthly Technical Review Criteria (TRC) violations
or four chronic violations in the two quarter period covered by the
QNCR. Therefore, a permittee would have to experience fewer violations
than two TRC or four chronic violations in the two quarters to be
reported as resolved on the QNCR. The final guidance also now resolves
these violations, for both ONCR and significant noncompliance (SNC)
purposes, when a facility achieves one quarter of absolute compliance
with the monthly average limitations.
The other issue which was resolved by your comments was the
tracking of permit effluent measurements in the absence of interim
limits in an enforcement order. The majority of comments were in
favor of the draft guidance on. this issue - that continuing permit
violations not be reported on the QNCR, but tracked outside of the
QNCR for escalation of enforcement when necessary. The final
guidance remains unaltered on this issue.
In addition to the change mentioned above, several wording
changes have been made in the final version based on comments received
at the training sessions. The major comments and questions have been
compiled into a "question and answer" format to be sent as a follow-
up to the training. These questions and answers reflect a wide range
of subjects indicating a great deal of careful thought by Regional
staff. - .
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-2-
One expected important result of the QNCR Guidance -and our
revised definition of SNC is an increase in the level of SNC
(expressed as a percent of major permittees). The Office of
Enforcement and Compliance Monitoring (OECM) has been informed of
this increase and will be taking this into consideration when
evaluating Regional performance. In addition, sample introductions
to the QNCR have been drafted (see Attachment B for QNCRs generated
automatically through the Permit Compliance System and
Attachment C for manually prepared QNCRs) to accompany reports
sent out under the Freedom of Information Act; these introductions
will inform the public of the changes in the regulation and
indicate that even though our definition of SNC is more stringent
than it had been in the past, it does not include all instances
of noncompliance listed on the QNCR.
Please call J. William Jordan (202-475-8304) or Larry Reed
(202-475-8313) for questions, or have your staff call Sheila
Frace (202-475-9456).
Attachments
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Table of Contents
PART 1: QUARTERLY NONCOMPLIANCE REPORTS
I. INTRODUCTION 1-1
II. SUBMITTAL REQUIREMENTS 1-2
III. VIOLATION OF PERMIT REQUIREMENTS 1-9
A. DETERMINING INSTANCES OF PERMIT
NONCOMPLIANCE TO BE REPORTED 1-9
B. RESOLUTION OF REPORTED INSTAMCES OF
PERMIT NONCOMPLIANCE 1-15
C. FORMAT OF INSTANCES OF PERMIT NONCOMPLIANCE 1-16
IV. VIOLATION OF ENFORCEMENT ORDER REQUIREMENTS ' 1-21
A. DETERMINING INSTANCES OF ENFORCEMENT ORDER
NONCOMPLIANCE TO BE REPORTED 1-21
B. RESOLUTION OF REPORTED INSTANCES OF
ENFORCEMENT ORDER NONCOMPLIANCE 1-25
C. FORMAT OF INSTANCES OF ENFORCEMENT ORDER
NONCOMPLIANCE 1-26
PART 2: SIGNIFICANT NONCOMPLIANCE
I. INTRODUCTION 2-1
II. DEFINITION 2-1
III. EXCEPTIONS LIST 2-6
PART 3: SEMI-ANNUAL STATISTICAL SUMMARY REPORTS
I. INTRODUCTION • 3-1
II. DETERMINING INSTANCES OF NONCOMPLIANCE TO RE REPORTED 3-1
•III. FORMAT 3-2
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LIST OF APPENDIXES
APPENDIX I - Noncompliance to be Reported in the ONCR
(by subparagraph)
APPENDIX II - Acceptable Quarterly Noncompliance Report Abbreviations
APPENDIX III - Current Listing of Group I and Group II Pollutants
APPENDIX IV - Sample Quarterly Noncompliance Report
APPENDIX V - Technical Guidance
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ATTACHMENT A
GUIDANCE FOR PREPARATION OF QUARTERLY
AND SEMI-ANNUAL NONCOMPLIANCE REPORTS
(PER SECTION 123.45, CODE OF FEDERAL REGULATIONS, TITLE 40)
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FOREWORD
Section 123.45 of the Code of Federal Regulations, Title 40,
establishes the reporting requirements for quarterly, semi-annual,
and annual noncompliance reports on facilities that are permitted
under the National Pollutant Discharge Elimination System (NPDES).
This regulation, as published in the Federal Register on August 26,
1985, is a revision of previous reporting requirements. This
revision was necessary because the old regulations were found to
be too vague. This resulted in inconsistent reporting as each
NPDES administering agency tried to manage their program in a
manner that was consistent with their understanding of the intent
of the regulation.
Quarterly Noncompliance Report
The current regulations for the Quarterly Noncompliance Report
(QNCR) evolved from initial efforts by the compliance managers in
the Regions and in States having NPDES authority to identify a
concensus set of reporting criteria. These criteria were then
reviewed by the Compliance Task Force of the Association of State
and Interstate Water Pollution Control Administrators. The result
was a set of specific, quantifiable reporting criteria; violation
of these criteria is known as Category I noncompliance.
Since that time, EPA has identified additional violations that
are harder to quantify but are of sufficient concern to be considered
reportable; these violations are known as Category II noncompliance.
2
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- ii -
The regulations currently reouire the reporting of Category I
and II noncompliance by major permittees; these regulations differ
most significantly from the old ones in the areas 'of effluent
and schedule noncompliance.
The major change in the area of effluent noncomoliance is
the concept that an isolated, minor excursion may not be of
sufficient concern to warrant tracking on the ONCR. Instead,
Category I effluent noncompliance is based on specifically
defined "patterns of noncompliance" which take into account the
magnitude, freguency of occurrence, and duration of the violations,
These violations are resolved through issuance of a formal
enforcement order or by demonstrated compliance such that
the criteria are no longer met for the "pattern of noncompliance"
or the permittee has achieved one complete Quarter of compliance.
In contrast, the old regulations reauired that all violations
during the Quarter be reported. This reauirement would have
resulted in such voluminous reports that it was not strictly
adhered to by the administering agencies (EPA or approved States).
These violations were resolved in the past by one month of
compliance.
One of the major changes in the area of schedule
noncompliance is the concept that municipalities constructing
treatment facilities using federal grant funding should be
reported using the same criteria as for other municipalities
and industries. This is a revision of the old requirements
which allowed the subjective criteria of "unacceptable progress"
to be used for federally funded municipalities.
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- Ill -
The other major chanoe in the area of schedule noncompliance
is the length of the schedule delays that must be reported.
In the oast, the NPDES administering agency was reauired to
report violations of schedules (other than grant schedules)
that exceeded the reporting date of the schedule milestone by
at least 30 days (generally 60 days from the scheduled milestone
date). It was found, however, that it was often possible to
make up for delays of less than 90 days within the overall
schedule. The new regulation reguires only the reporting of
schedule violations (including grant schedule violations) that
exceed the scheduled date by 90 days or more.
A summary chart of the noncompliance that must be reported
in the QNCR can be found in Appendix I of this guidance.
Semi-annual Statistical Summary
In addition to these changes, the.new regulation also
. establishes the reguirements for a new report - the Semi-annual
Statistical Summary Report. This report was designed as a
complement to the QNCR as an indication of the amount of effluent
noncompli-ance that did not meet the criteria for QNCR reporting.
The Semi-annual Statistical Summary Report includes numerical
counts of major permittees in violation of monthly average
effluent limitations for two or more months of the six-month
reporting period. This criterion was chosen based on a study
of over 2500 major permittees in twelve states. The study
found that only one percent of the permittees that would violate
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- IV -
their monthly averaoe effluent limits twice in a year would not
meet the chosen criteria of twice in six months. As such, the
chosen criteria was believed to be a reasonable indicator of
the level of effluent noncomnliance - both the noncompliance
that warrants trackina on the ONCR and that which does not.
Annual Noncompliance Report
The requirements for the Annual Noncompliance Report remain
unchanged in the current regulation.
Significant Noncompliance
Significant Noncompliance (SMC) is a subset of Reportable
Noncompliance as defined for the ONCR. SNC .is not regulatory,
but is defined by EPA in Part 2 of this guidance. SNC is used
solely for management purposes and contains those instances of
noncompliance (both Category I and I'D that FPA feels merit
special attention from NPDES administering agencies. These
priority violations are tracked through the Strategic Planning
and Management System (SPMS) to ensure timely enforcement.
An SNC/QNCR comparison chart can be found in Appendix I.
Agency Enforcement
Any violation or instance of noncompliance by any point
source discharger is subject to agency enforcement actions.
This principle applies to all dischargers (major, minor, and
unpermitted) , and to all violations of Clean Water Act/NPDES
requirements, regardless of whether or not the violations meet
either the Reportable (ONCR) Noncompliance or SNC criteria.
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- V -
Major Guidance Topics
This guidance is beinq issued to clarify the revised
reporting reauirements and SNC. Major topics throughout the
guidance include the followina:
0 QNCR reportinn reauirements
- Criteria for reporting noncompliance
0 Separate criteria for reportina instances of noncompliance
with permit conditions and with enforcement order
requirements
- These criteria are considered Category I if they are
part of the "readily Quantifiable" criteria approved
by the Compliance Task Force
- These criteria are considered Category II if they are
part of the "less readily Quantifiable" criteria later
developed by EPA
- Category I versus Cateaory II does not determine priority
for enforcement response
- Evaluation of effluent noncompliance/compliance based on
performance over a period of time (pattern of noncompliance)
rather than at a specific point in time (e.g., the last
month of the Quarter)
- The capability to generate the QNCR from the national data
base (the Permit Compliance System)
0 Significant Noncompliance
- Subset of QNCR Category I and II noncompliance
0 Semi-annual Statistical Summary Report reauirements.
A copy of the current (revised and carried over)•reoortino
requirements follows.
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- vi -
§ 123.45 Noncompliance and Program Reporting by the Director.
The Director shall prepare Quarterly, semi-annual, and annual
reports as detailed below. When the State is the permit-issuing
authority, the State Director shall submit all reports required
under this section to the Reaional Administrator, and the EPA Region
in turn shall submit the State reports to EPA Headquarters. When
EPA is the permit-issuing authority, the Regional Administrator
shall submit all reports reguired under this section to EPA
Headquarters.
(a) Quarterly reports. The Director shall submit quarterly
narrative reports for major permittees as follows:
(1) Format. The report shall use the following format:
(i) Provide a separate list of major NPDES permittees
which shall be subcategorized as non-POTWs, POTWs,
and Federal permittees.
(ii) Alphabetize each list by permittee name. When two or
more permittees have the same name, the permittee with
the lowest permit number shall be entered first.
(iii) For each permittee on the list, include the followinq
information in the following order:
(A) The name, location, and permit number.
(B) A brief description and date of each instance of
noncompliance for which paraqraph (a)(2) of this
section requires reporting. Each listing shall
indicate each specific provision of paragraph (a) (2)
(e.g., (ii)(A) thru (iii)(G)) which describes
reason for reporting, the violation on the guarterly
report.
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- vii -
(C) The date(s), and a brief description of the
action(s) taken by the Director to ensure
compliance.
(D) The status of the instance(s) of noncompliance
and the date noncompliance was resolved.
(E) Any details which tend to explain or mitiqate the
instance(s) of noncompliance.
(2) Instances of noncompliance by major dischargers to be
reported.
(i) General. Instances of noncompliance, as defined in
paragraphs (a)(2)(ii) and (iii) of this section, by
major dischargers shall be reported in successive
reports ,until the noncompliance is reported as resolved
(i.e., the permittee is no longer violating the permit
conditions reported as noncompliance in the QNCR).
Once an instance of noncompliance is reported as
resolved in the QNCR, it need not appear in subseouent
reports.
(A) All reported violations must be listed on the
QNCR for the reporting period when the violation
occurred, even if the violation is resolved during
that reporting period.
(B) All nermittees under current enforcement orders
(i.e., administrative and judicial orders and
consent decrees) for previous instances of
noncomnliance must be listed in the ONCR until
the orders have been satisfied in full and the
permittee is in compliance with permit conditions.
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- viii -
If the permittee is in compliance with the
enforcement order, but has not achieved full
compliance with permit conditions, the compliance
status shall be reported as "resolved pendinn,"
but the permittee will continue to be listed on
the ONCR.
(ii) Category I noncomnliance. The following instances of
noncompliance by major dischargers are Category I
noncompliance:
(A) Violations of conditions in enforcement
orders except compliance schedules and reports.
(B) Violations of compliance .schedule milestones
for starting construction, completina construction
and attaining final comoliance by 90 days or more
from the date of the milestone specified in an
enforcement order or a Detroit.
(C) Violations of permit effluent limits that exceed
the Appendix A "Criteria for Noncompliance Reporting
in the NPDES Program".
fD) Failure to provide a compliance schedule report for
final compliance or a monitoring report. This
applies when the permittee has failed to submit
a final compliance schedule progress renort,
pretreatment report, or a Discharge Monitoring
Report within 30 days from the due date specified
in an enforcement order or a permit.
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- ix -
(iii) Category II noncompliance. Category II noncompliance
includes violations of permit conditions which the
Agency believes to be of substantial concern and may
not meet the Category I criteria. The following are
instances of noncompliance which must be reported as
Category II noncomnliance unless the same violation
meets the criteria for Category I noncompliance.
(A) (1) Violation of a permit limit:
(2) An unauthorized bypass;
(3) An unpermitted discharge; or
(4) A pass-through of pollutants
which causes or has the potential to cause a water
guality problem (e.g., fish kills, oil sheens) or
health problems (e.g., beach closings, fishings
bans, or other restrictions-of beneficial uses).
(B) Failure of an approved POTW to implement its
approved pretreatment program adeguately including
failure to enforce industrial pretreatment
reguirements on industrial users as reguired
in the approved program.
(C) Violations of any compliance schedule milestones
(except those milestones listed in paragraph
(a)(2)(ii)(B) of this section) by 90 days or more
from the date specified in an enforcement order
or a permit.
(D) Failure of the permittee to provide reports
(other than those reports listed in paragraph
(a)(2)(ii)(D) of this section) within 30 days
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- x -
from the due date specified in an enforcement
order or a permit.
(E) Instances when the required reports provided by
the permittee are so deficient or incomplete
as to cause misunderstanding by the Director and
thus impede the review of -the status of compliance.
(F) Violations of narrative requirements (e.q.,
requirements to develop Spill Prevention Control
and Countermeasure Plans and requirements to
implement Best Manaciement Practices), which are
of substantial concern to the regulatory agency.
(G) Any-other violation or group of permit violations
which the Director or Regional Administrator
considers to be of substantial concern.
(b) Semi-Annual Statistical Summary Report. Summary information
shall be provided twice a year on the number of major permittees
with two or more violations of the same monthly average permit
limitation in a six month period, including those otherwise
reported under paraaraph (a) of this section. This report
shall be submitted-at the same time, accordinq to the Federal
fiscal year calendar, as the first and third quarter QNCRs.
(c) Annual reports for NPDES.
(1) Annual noncompliance report. Statistical reports shall
be submitted by the Director on nonmajor NPHES permittees
indicating the total number reviewed, the number of
noncomplying nonmajor permittees, the number of enforceme^
actions, and the number of permit modifications extendinq
compliance deadlines. The statistical information shall
i *
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- xi -
be organized to follow the tynes of noncomoliance listed
in paragraph (a) of this section.
(2) A separate list of nonmajor discharges which are one or
more years behind in construction phases of the compliance
schedule shall also be submitted in alphabetical order by
name and permit number.
(d) Schedule.
(1) For all quarterly reports* On the last working day of
May, August, November, and February, the State Director
shall submit to the Regional Administrator information
concerning noncompliance with NPDES permit reauirements
by major dischargers in the State in accordance with the
following schedule. The Regional Administrator shall
prepare and submit information for EPA-issued permits to
EPA Headauarters- in accordance with the same schedule:
QUARTERS COVERED BY REPORTS ON
NONCOMPLIANCE BY MAJOR DISCHARGERS
(Date for completion of reports)
January, February, and March... ^-May 31
April, May, and June ^August 31
July, August, and September.... November 30
October, November, and Decembers-February 28
(2) For all annual reports. The period for annual reports
shall be for the calendar year ending December 31, with
reports completed and available to the public no more
than 60 days later.
^-Reports must be made available to the public for inspection and
copying on this date.
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- xii -
Appendix A to S 123.45 - Criteria for Noncompliance Reporting
in the NPOES Program
This appendix describes the criteria Cor reporting violations
of NPDES oermit effluent limits in the nuarterly noncomnl. iance
report (QNCR) as specified under § 123.45 (a)(2)(ii)(c). Any
violation of an NPDES permit is a violation of the Clean Water Act
(CWA) for which the permittee is liable. An agencv's decision as
to what enforcement action, if any, should be-taken in such cases,
will be based on an analysis of facts and legal reauirements.
Violations of Permit Effluent Limits
Cases in which violations of permit effluent limits must be
reported depend upon the magnitude and/or freguency of the violation.
Effluent violations should be evaluated on a parameter-by-parametei
and outfall-by-outfall basis. The criteria for reporting effluent
violations are as follows:
a. Reporting Criteria for Violations of Monthly Average Permit
Limits - Magnitude and Freguency.
Violations of monthly average effluent limits which exceed
or egual the product of the Technical Review Criteria (TRC)
times the-effluent limit, and occur two months in a six month
period must be reported. TRCs are for two groups of pollutants.
Group I Pollutants - TRC=1.4
Group II Pollutants - TRC=1.2
b. Reporting Criteria for Chronic Violations of Monthly Average
Limits.
Chronic violations must be reported in the QNCR if the
monthly average permit limits are exceeded any four months in
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- Xlll -
a six month period. These criteria apply to all Groun I and
Group II pollutants.
Group I Pollutants - TRC=1.4
Oxygen Demand
Biochemical Oxygen Demand
Chemical Oxygen Demand
Total Oxygen Demands
Total Organic Carbon
Other
. Solids
Total Suspended Solids (Residues)
Total Dissolved Solids (Residues)
Other
Nutrients
Inorganic Phosphorus Compounds
Inorganic Nitrogen Compounds
Other
Detergents and Oils
MBAS
NTA
Oil and Grease
Other detergents or algicides
Minerals
Calcium
Chloride
Fluoride
Magnesium
Sodium
Potassium
Sulfur
Sulfate
Total Alkalinity
Total Hardness
Other Minerals
Metals
Aluminum
Cobalt
Iron
Vanadium
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- xiv -
Group II Pollutants - TRC=1.2
Metals (all forms)
Other metals not specifically listed under Group I
Inorganic
Cyanide
Total Residual Chlorine
Organics
All organics are Group II except those specifically listed under
Group I
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II.C.8.
"Managers' Guide to the Permit Compliance System" June/ 1986. Table of
Contents only.
-------
n
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MANAGERS' SUIOC
TO THt
PERMIT COMPLIANCE SYSTEM
TABU OF CONTENTS
Executive Sumnary
1. Introduction
1.1 Purpose of this Manuel
1.2 Manager's Role In Relationship to PCS
1.3 Organization of this Manuel
2.. Overview of PCS
2.1 PCS' Current Capabilities
2.2 Purposes of PCS
2.3 Regional and State Participation In PCS
2.4 History of Development
2.5 Future Capabilities
2.6 PCS Policy Statement
2.7 PCS Data Organization
2.8 PCS Report Capabilities
•
3. -Management Reports
3.1 Reports fro* INQUIRY
3.2 General Facility Information
3.3 Permit Issuance/Relssuance
3.4 Evidentiary Hearings
3.5 Compliance Schedules
3.6 Effluent Limits
3.7 Discharge Monitoring Report Tracking
3.8 Effluent Measurements/Violations
3.9 Inspection Tracking
3.10 Enforcement Action Tracking
3.11 Pretreatment Program Tracking
3.12 Nation*! Municipal Policy
3.13 Toxlclty Limits
3.14 Grants
3.IS Strategic Planning and Management System
3.16 Quality Assurance
1-1
1-1
1-2
1-2
2-1
2-2
2-3
2-4
2-5
2-6
2-6
2-8
3-1
3.1-1
3.2-1
3.3-1
3.4-1
3.5-1
3.6-1
3.7-1
3.8-1
3.9-1
3.10-1
3:11-1
3.12-1
3.13-1
3.14-1
3.15-1
3.16-1
APPENDIX A:
APPENDIX B:
APPENDIX C:
APPENDIX D:
APPENDICES
Inquiry
Selection Criteria
Glossary
Data Elements Lists
-------
-------
II.C.9
,,Guide to PCS Documentation" **£»"• Table of contents only.
(information only; no longer current).
-------
-------
GUIDE TO PCS DOCUMENTATION
Table of Contents
Date
I. Introduction
II. PCS Overview
0 PCS Overview and Example NPDES Reports
0 PCS Pricing Model - Executive Summary
0 Model for Assessing Resource Reouirements (MARP)
- Overview of MARP
- Scenario Questions
III. NPDES Policy
0 PCS Policy Statement
0 Regional Implementation of the PCS Policy Statement
0 Hater Enforcement National Data Base (WENDB)
0 Agency Operating Guidance - FY 1985-1986
IV. NPDES Permit Tracking - Issuance
c Permit Issuance Tracking
0.Permit Tracking Event Codes
0 Permit Tracking Event Codes
0 Issues Related to NPDES Permit Limit Compliance
Tracking Using Statistical Base Codes
v. NPDES Permit Tracking - Evidentiary Hearings
0 Conversion of Evidentiary Hearino Data into PCS
VI. NPDES Compliance Tracking - National Municipal Policy
0 National Municipal Policy Trackino in PCS
0 Follow-up to June 3, 1985 Conference Call on
National Municipal Policy Tracking in PCS
• PCS NMP Conference Call
VII. NPDES Compliance Tracking - Inspections
0 Use of the New NPDES Compliance Inspection Form
0 NPDES and Pretreatment Inspection Reporting for
FY 1986 Office of water Accountability System
0 Audits of POTWs with Approved Pretreatment Programs
0 Pretreatment Audit Reporting Requirements
• Inspections Based on DMR PA Results
3/ 1/85
10/31/85
12/17/85
2/13/84
7/15/85
7/31/85
4/26/85
11/12/85
5/16/85
6/ 4/85
8/29/85
5/14/85
8/ 6/85
8/30/85
12/16/85
12/17/85
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Table of Contents
(Continued)
Date
VJII. Selection Criteria for Strategic Planning
and Management System reports
0 Selection criteria and example reports for SPMS
reporting reouirenents on:
- Inspections
- Permits
- Evidentiary Hearings
- National Municipal Policy
IX. PCS Meetings
0 Sunmary of PCS Management Needs Meeting (11/84) 1/14/85
0 PCS Steering Committee Minutes (3/85) 4/12/85
0 Minutes of the November Permit Compliance System
(PCS) Users Group Meeting (11/84) 2/22/85
" Minutes of the April Permit Compliance System
(PCS) Users Group Meeting (4/85) • 6/12/85
0 Minutes of the November Permit Compliance System
(PCS) Users Group/Steering Committee Meeting (11/85) 12/24/85
PCS News
0 Permit Compliance System Management Newsletter 2/28/85
0 Permit Compliance System Status Report 7/ 3/85
0 Permit Compliance System Status Report 11/20/85
0 Permit Compliance System Management Status Report 5/T*2/86
0 PCS DBMS User Newsletter #1 6/85
0 PCS DBMS User Newsletter #2 7-B/85
0 PCS DBMS User Newsletter #3 9-11/85
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II.C.10.
"General Record of Enforcement Actions Tracked (GREAT) Conversion to Permit
Compliance System (PCS)11, dated July 24, 1987. Supplements II.C.2.
(Conversion completed prior to January 1, 1988).
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-------
\mj
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUL
i98T
MEMORANDUM
E Of
WATER
SUBJECT
FROM:
General Record of '~r.forcer.ent Actions Tracked
System (GREAT) Conversion to Permit Compliance
System (PCS)
,-7
J. William .Jor-lan, director
Enforcement Division
TO:
Regional Compliance Branch Chiefs
oe
To
used
further implement the PCS Policy Statement, PCS should
to track EPA administrative orders issued -against NPDES
requested by
facilities. This *as
at the November 6-7,
the PCS Steering committee
in Annaoolis, Marvland.
The PCS Policy Statement currently requires entry of enforcement
actions for ma:ors and '32-500 r.inors only, but the General
Record of Enforcement Actions Tracked (GREAT) system contains
all EPA administrative enforcement actions (majors and minors).
To successfully convert from GREAT to PCS "he Regions should
agree to enter into PCS the enforcement ac*: T.S against all minors
and unpermitted facilities. This woul'd nc'
we would only be tracking EPA actions. In
enforcement actions were taken against min-
facilities. The total data entry burden f,
estimated at 26 hours for one fiscal year.
necessary for this data entry are attached,
data entry is obviously quite small. We would only give credit
for those AOs entered into PCS, as we presently Jo for N'PDES and
pretreatment inspections.
:ffect States, since
''i 1986 457 EPA formal
• •; and imnermi t ted
• the entire nation is
The PCS ADE Screens
and the amount of
Under this program the GREAT System woi:l
data base. We would continue to track close-
tive enforcement actions currently in the
consistent accountability. All quarterly me.*
EPA NPDES administrative orders for the Strat
Management System (SPMS) would be retrieved :
We would, "however, T.ake parallel retrievals i
the third and fourth quarters of FY37 to. give
ensure that all their enforcement actions ar-3
PCS.
'1 become a historical
outs of administra-
AT system to ensure
sures for tracking
egic Planning and
rom PCS in FY 1983.
rom GREAT and PCS for
everyone time to •
being entered into
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-2-
The plan is to enter into PCS all data for EPA enforcement
actions taken against majors, unpernitted facilities and all
minors. "Hardcopies" of the administrative orders, notices of
violation, 404 actions (dredge and fill violations), 311 actions
(.SPCC and CG referrals), and closeouts would continue to be sent
to Headquarters. Please review the attached proposal for PCS
data entry and its attachments. We have scheduled a conference
call (FTS 382-2603) with each of you at 1:00 p.m. Eastern Daylight
Savings Tiae on July 30, 1987, to discuss the proposed conversion.
Please call Larry Reed or George Gray (FTS 475-8313) if
there are questions before the July 3Cth conference call. We
will call you to assure that you received this notice.
Attachments
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II.C.ll.
"GUIDANCE FOR REPORTING AND EVALUATING POTW NONCOMPLIANCE WITH PRETREATMENT
IMPLEMENTATION REQUIREMENTS", dated September, 1987.
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-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON. D.C. 20460
September 30, 1987
OF MCE OF
MATE A
MEMORANDUM
SUBJECT: Guidance for Reporting and Evaluating POTW Noncompliance
with Pretreatment Implementation Requirements
jZ***-^^—
FROM: JapaesR. Elder, Director
Mfice of Water Enforcement and Permits (EN-335)
TO: Regional Water Management Division Directors.
NPDF.S Suite Pretreatment Program Directors
The Office of Water Enforcement and Permits has completed development of a guidance for evaluating
and reporting noncompliance by Publicly Owned Treatment Works (POTWs) that have failed to
implement their approved pretreatment programs. The Guidance identifies criteria for evaluating the
principal POTW activities that are essential to fully implement most local programs POTWs th.it meet
the criteria in the definition should be reported by EPA and approved Slates on the Quarterly
Noncompliance Report (QNCR).
These criteria were developed by an EPA workgroup and presented to States and Regions at the
National Pretreatment Coordinators Meeting. December 17. 1986. Draft guidance was developed and
circulated for comment in May 1987. In general, your comments supported the criteria that were
proposed in the draft. We also received comments from former PIRT members. As a result, the final
guidance has been modified in two areas. Under the criteria for POTW inspections of SIUs, the percent
coverage has been increased to 80% of the levels required in the permit or approved program. If no
specific permit or program requirement was established, the guidance recommends reporting any POTW
that failed to sample or inspect at least 50fc of its SIUs in a 12 month period. The second area of change
was for enforcement of pretreatment standards. Several PIRT comments wanted a specific criterion for
failure to develop adequate local limits. Instead of adding new criteria, we expanded the discussions
under the criteria for issuance of SIU control mechanisms, implementation of pretreatment standards,
and enforcement against interference and pass-through. The discussions include minimum local limit
requirements and recommended procedures to resolve these and other deficiencies of approved
programs.
For FY 1988, EPA Regions and States should use this guidance to identify POTWs that are failing to
implement their approved programs and should report them on the QNCR. While formal enforcement
is not automatically required as a response to noncompliance reported on the QNCR, Regions and
approved States should seriously consider the use of an administrative order (and, perhaps, with a
penalty depending on the egregiousness of the lack of implementation) to establish a schedule to correct
the violations. The Strategic Planning and Management System for FY 1988 contains two measures:
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•2-
WQE-12 which addresses the POTWs compliance assessment process; and WQE-13 which will tracV|
how frequently POTW noncompliance is addressed by formal enforcement. Further explanation of this
measure can be found in "Definitions and Performance Expectations" in "A Guide to the Office of
Water Accountability System and Mid-Year Evaluations* (Fiscal Year 1988). EPA Regions should assist
States in applying the definition of reportahle noncompliance. identifying noncomplying POTWs. and
tracking cases where formal enforcement is taken. The Office of Enforcement and Compliance
Monitoring is developing more specific guidance on the criteria for judicial referrals and the burden of
proof for demonstrating noncompliance for POTW pretreatment implementation. That guidance will
be distributed to the Regions for review before it is made final.
If you have questions regarding the guidance or SPMS reporting, please contact Rill Jordan. Pirivtor.
Enforcement Division, or Anne Lassiter. Chief. Policy Developm: : Branch (202 4"5-S>()~) The staff
contact is Ed Bender (202/475-8331).
cc: Glenn Unterberger
Gerald Bryan
Pretreatment Coordinators. EPA and States
Regional Compliance Branch Chiefs
Regional Counsels
Rebecca Hanmer
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GUIDANCE FOR
REPORTING AND EVALUATING
POTW NONCOMPLIANCE WITH
PRETREATMENT REQUIREMENTS
l.'nilcii Stales linvirunnu-nlal Protection Agency
Office of Water
Office of Water llnforcement Permits
Washington. D.C.
September 30, 1987
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-------
TABLE OF CONTENTS
I. Introduction 1
A. Background 1
B. Existing Rule 1
C. Definition of Re-portable Noncompliance 2
II. Applying the Criteria 4
A. Failure to Issue Control Mechanisms to Significant IUS in
a Timely Fashion 4
B. Failure to Inspect Significant ITJs 5
C. Failure to Establish and Enforce IU Self-Monitoring
where Required by the Approved Program 5
D. Failure to Implement Pretreatment Standards 6
E. Failure to F.nforce Against Pass-Through and Interference 8
F. Failure to Submit Pretreatment Reports Within 30 days 9
G. Failure to meet Compliance Milestones by 90 days or more 9
H. Any Other Violation(s) of Concern to the Approval Authority 9
III. Reporting on the QNCR 10
A. Format 10
B. Description ol the NorKompliance 10
C. Compliance Status 11
IV. Examples of Reporting on the QNCR 12
A. Example 1 12
B. Example 2 13
V. Compliance Evaluation 14
VI. Response to Noncompliance 17
VII. Sum man 18
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I. INTRODUCTION
A. Background
EPA Regions and NPDES States must report certain permit violations on the Quarterly Noncompliance
Report (ONCR) 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. The interpretation of adequate implementation is currently left to the discretion
of the Region and approved States.
The Office of Water Enforcement and Permits has developed a definition of reportahle noncompliance
for POTW pretreatment program implementation which establishes criteria to evaluate adequate
implementation. Although the size and complexity of local pretreatment programs varies greatly among
Control Authorities, all POTWs must perform certain basic activities to implement their pretreatment
programs. The definition of reportable noncompliance establishes criteria in five basic areas of POTW
program implementation: IU control mechanisms; compliance monitoring and inspections; POTW
enforcement; POTW reporting to the Approval Authority; and other POTW implementation
requirements.
The purpose of this Guidance is to explain the basis for the definition and its criteria, provide examples
of how to apply the the criteria, explain how to report noncompliance for POTW pretreatment program
implementation on the ONCR and suggest appropriate responses to noncompliance. This Guidance
should be used to fulfill requirements for reporting POTW pretreatment noncompliance that are
described in the I;Y 1'JKK Agency Operating Guidance and included as a performance measure for I:PA
and approved State programs under the Strategic Planning and Management System (SPMS).
R. Existing Rule
The ONCR is the basic mechanism for reporting violations of NPDES permit requirements. Major
I'O'I'W permitte-i-s1 must be reported on the ONCR:
(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., A^
administrative orders, judicial orders, or consent decrees) for violations of pretrealment 1'
implementation requirements must be listed on the ONCR and the compliance status must /
be reported on each subsequent QNCR until the POTW returns to full compliance with the /
implementation requirements.
1 Major POTW' permittees are those with a dry weather now of at least 1 million gallons per day or a BOD/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 pretreaiment violations reported on the QNCR.
-------
2. Category I pretreatment program noncompliance • A POTW must he reported on the QNCR:
% a) if it violates any requirements of an enforcement order, or
b) if it has failed to submit a pretreatment report (e.g., to submit an Annual Report or t|
publish a list of significant violators) within 30 days from the due date specified in the
permit or enforcement order, or
c) if it has failed to complete a pretreatment milestone within 90 days from the due date
specified in the permit or enforcement order.
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.
V b) a failure of an approved POTH' to implement its approved program ikU'^utitcty [emphasis
added], including failure to enforce industrial pretreatment requirements on indu.strial
users as required by the approved program.7 or
c) any other violation or group of violations which the Director or Regional Administrator
considers to be of substantial concern.
C. Definition of Reportable Noncompliance
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 should use to
implement their programs. These activities include:
1) establishment of IU control mechanisms,
2) POTW compliance monitoring and inspections.
3) POTW enforcement of pretreatment requirements,
4) POTW reporting to the Approval Authority, and
5) Other POTW implementation requirements.
Collectively, these activities are the framework for the definition of reportable noncompliance (Table
1), which should be used by EPA Regions and approved States to report POTW noncompliance with
pretreatment requirements on the QNCR.
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TABLE 1
DEFINITION OF REPORTABLE NONCOMPLIANCE
A POTW should he reported on the QNCR if the violation of its approved presentment program, its
NPDES permit or an enforcement order3 meets one or more of the following lettered criteria for
implementation of its approved pretreatment program:
I. Issuance or II,' Control Mechanisms
A) Failed to issue, reissue, or ratify industrial user permits, contracts, or other control
• mechanisms, where required, for "significant industrial users", within six months after
program approval. Thereafter, each "significant industrial user" control mechanism should
be reissued within 90 days of the 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 In monitor
Sll' compliance as required by the approved program, the NIMMvS permit, or an enforcement
order.
III. POTW Knfnrccmcnt
D) Failed to develop, implement, and enforce pretreatment standards (including categorical
standards and local limits) in an effective and timely manner or as required by the approved
program. NPDf-S permit, or an enforcement order.
!£) Failed to undertake effective enforcement against the irulnslri.il us
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II. APPLYING THE CRITERIA
The criteria for reporting POTW noncompliance with pretreatment requirements are based on the
General Pretreatment Regulations [particularly Section 403.8(f)(2)J. 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 he 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 QNCR for failure to
implement a pretreatment program. If the POTW is identified as meeting one or more of the criteria.
the POTW should be considered in reportahle noncompliance and reported on the QNCR.
POTW performance should be evaluated using the information routinely obtained from pretreatment
compliance inspections, annual reports, pretreatment audits ,md Discharge Monitoring Reports
(DMRs) as well as any special sources of information. All annual reports should include a Pretreatment
Performance Summary of SIU compliance information.* This summary .should be useful to assess the
effectiveness of prHrealmrnt implementation Pictre.ilnirnt st.ttt \houUI review the approved program.
the NPDIIS 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. Where these requirements exist, they should be recorded on fact.sheets and
possibly added to the specific requirements in the permit.
ISSIAM K OK II CONTROL MKCII \MSMS
A. Failure to Issue Control Mechanisms lit Significant Us in a Timvlt Fashion
The POTW can use contracts*, mdividu.il permits, or sewer use ordinances as control mechanisms.
Control mechanisms establish enforceable limits, monitoring conditions, and reporting requirements
for the industrial user. In some cases, an approved progr.m may have a sewer use ordinance that defines
the limits (including local limits) and a separate mechanism for establishing monitoring conditions at
each facility. Technically, it 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, the POTW should be given a deadline to issue them. Some States include
schedules for issuing specific SIU permits in a POTW's NPDES permit. Where the POTW has missed
two or more deadlines specified in a permit or enforcement order for issuing individual control
mechanisms by 90 days or more, the violation must be reported on the QNCR as a schedule violation.
In general, EPA believes that where individual control mechanisms are required by the approved
program, the POTW should issue control mechanisms to all SIUs within six months after the program
is approved or after new pretreatment standards (categorical or local limits) are established, so that
full implementation can be evaluated by an audit within one year after approval. Any delay in this
schedule should be reported on the QNCR.
* USEPA Pretreatmeni Compliance Monitoring and Enforcement Guidance (PCME) l'W6 Recommended specific data..
EPA proposed rules for annual reports that include the PCME data.
6 Proposed rule change to 40 CFR 403 on June 12, 1986 (51 FR 21454) would make contracts an unacceptable control
mechanism to obtain penalties.
-------
The POTW should also maintain and update its inventory of SIUs. EPA is considering further
rulemaking to require annual updates of the IU inventory by all POTWs. The TU inventory is the
foundation for applying pretreatment controls and monitoring IU compliance. POTWs that fail to
maintain an adequate inventory of SIUs and annually update the inventory should be reported on the
QNCR. Where necessary, permits should he modified to require routine updates of the IU inventory.
POTVV COMPLIANT!-; MONITORING AND INSPKCTIONS
B. Failure to Inspect Significant Industrial Users
POTWs are required to possess the legal authority to carry out all inspection, surveillance, and
monitoring procedures necessary to verify the compliance status of their industrial users independent
of information provided hy the industrial user [40 CFR 40..vX (f)(4)]. 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 and sampling, these requirements should be
used as ;i basis to evaluate POTW compliance If the POTW has f.iiled to inspect or'sample at least 80^
of the significant industrial users as required b\ the permit or the approved program, the POTW should
be reported on the ONTR lor its failure inspect POTW sampling of all IUs is essential to evaluate IU
compliance where IUs do not submit self-monitoring inform.ition In the absence of specific inspection
coverage requirements in the approved program or permit, the Approval Authority should report any
POTW which has not inspected or sampled at least 5(f"r of all SIUs within a 12 month period. In addition.
if the approved program or permit does not contain specific criteria, the Approval Authority should
modify the NPDI S permit to be sure th.it the POTW conducts inspections or sampling visits of all
SIUs at least annually
('. Failure to Kstuhlish and Knfnric 11 Self-Monitoring where Ki-quirod l>\ the Approved Program
All categorical IUs are required to report at least twice a year [40 CT'K (40} 12)] POTWs also have
authority to require monitoring and reporting from non-categorical IUs. As 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 a program does not require SIU self-monitoring, the visits and inspections conducted by the
POTW must be sufficient in scope or frequency to assure compliance.
PJ self-monitoring requirements should specify the location, frequency, and method of sampling the
waslewater; the procedure for analysis and calculation 'of the result; the limits; and the reporting
requirements. 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 to accurately demonstrate the
continuing compliance of the SIU. A POTW may use a combination of SIU self-monitoring and its own
data collection to evaluate SIU compliance with its limits. As a guide. EPA has published self-monitoring
frequencies for significant industrial users that are related to their process wastestream flow rates. (See
section 2.2 of the PCME Guidance).
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In most situations, effluent monitoring information should be available so that the compliance of a SIU
with a monthly. 4-day-or other average limit can be determined at least once a quarter. This frequency
is higher than the implied minimum in the regulations; however, this frequency is more likely to promote
continued compliance and a more timely POTW response to violations. Under proposed rules7 for,
pretreatment, SIU violations would trigger additional self-monitoring. For each violation the SIU
detects, it would be required to resample and submit both sample results for review by the Control
Authority.
In evaluating compliance with this criterion. EPA and approved States should examine the requirements
of the permit and determine whether the Control Authority has established self-monitoring
requirements as required. Where appropriate requirements have been established, the Control
Authority must ensure that SIUs comply with all aspects of the requirements and report in the manner
required in the control mechanism. Where the Control Authority fails to establish appropriate
requirements or to adequately enforce (e.g.. POTW' should respond in writing to all SNC violations for
IU self-monitoring) these requirements once established, the Control Authority should be considered
in noncompliance and listed on the QNCR.
POTW ENFORCEMENT
I). Failure to Implement Pretreatment Standards
1. Application of I,mal Limits
Implementation i>l ptctreatmenl standards requires the development of ltv.il limits as well as the
enforcement of all pretreatment standards. The discussion of local limits in the preamble to the I'M I
General Prelrcatmenl Regulations Mates in part: These (local) limits are developed initially as aJ
prerequisite to POTW' pretreatment program approval and are updated thereafter as necessary to reflect*
changing conditions at the POTW." In order to comply with their permit and the regulations, each
POTW should have already conducted a technical evaluation, using available techniques, to determine
the maximum allowable treatment plant headworks (influent) loading for six metals (cadmium,
chromium, copper, lead, nickel and zinc)* and other pollutants which have reasonable potential for
pass-through, interference, or sludge contamination. Therefore, any POTW that has not conducted this
evaluation and adopted appropriate local limits should be reported on the QNCR for failure to
adequately implement their approved pretreatment program.
If any POTW program has already been approved without the analysis of the impact of the pollutants
of concern and adoption of local limits, the Approval Authority should report the POTW on the QNCR
and immediately require the POTW to initiate an analysis and to adopt appropriate local limits. This
requirement should be incorporated in the POTW's NPDES permit as soon as feasible. Where a POTW
has previously adopted local limits but has not demonstrated that those limi'i;. are based on sound
technical analysis, the Approval Authority should require the POTW to demonstru e that the local limits
are sufficiently stringent to protect against pass-through, interference and sludge contamination. POTWs
which cannot demonstrate that their limits provide adequate protection should be reported on the
QNCR and required to revise those limits within a specific time set forth in a permit modification.
7 See proposed amendments to General Pretreatment Regulations. 51 PR 2154, June 12, 1986.
8 See discussion from Rebecca Hanmer. Director, OWEP. USEPA Memorandum "Local Limits Requirements for POTW
Pretrcatment Programs". August 5. 1V85. . .
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2. POTW Enforcement and IU Significant Noncompliance
The Control Authority must have the legal authority-usually expressed through a sewer use
ordinance-to require the development of compliance schedules by IUs and to obtain remedies for
noncompliance, including injunctive relief and civ-J cr criminal penalties (40 CFR 403.8(f)(iv) and (vi)J.
In addition, the Control Authority must have an attorney's statement, which among other things.
identifies how the Control Authority will ensure compliance with pretreatment standards and
requirements and enforce them in the event of noncompliance by industrial users [Section
4f)3.y(b)(l)(iii)]. Further procedures for enforcement may be contained in the approved program, sewer
use ordinance or NPDES permit.
The attorney's statement and compliance monitoring sections of the approved program, taken in
combination with the NPDES permit, may provide a comprehensive set of enforcement procedures
which the POTW should follow to ensure the compliance of industrial users with pretreatment standards.
Where such procedures are inadequate. EPA strongly recommends that POTWs develop written
enforcement procedures which describe how and when enforcement authorities are applied (See section
3.3 of the PCME). These procedures serve to inform industrial users of the likely response to violations
and assist the POTW in applying sanctions in an equitable manner.
The Approval Authority must periodically evaluate whether the POTW is effectively enforcing
pretreatment standards In evaluating performance, the Approval Authority should examine both
whether the POTW is following its enforcement procedures and whether the program is effective in
ensuring compliance with pretreatment standards 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 (SNC)* of SIL's is 20^ or greater.-there is a reasonable
presumption that the Control Authority is either not effectively enforcing its procedures or that the
procedures .ire inadequate. The burden of proving that this is not the case should fall on the Control
Authority.
\-.\\\ and SIMM'S States h.i\e been using a definition of significant noncompliance for major permittees
to set piiorilics tor lotm.il enforcement and as a tool to evaluate the effectiveness of Regional and State
compliance programs Major industrial permittees, a subset of all iiKlustri.il permittees, generally have
the largest direct discharge flows, and highest toxic pollutant loadings. Therefore their noncompliance
has the greatest potential to adversely affect water quality or pose human health problems. In terms of
priorities, the significant industrial users within a POTW should be considered to be simiiiar to the
major industrial permittees by the approved State or EPA Region.
Enforcement followup by EPA Regions and approved States is generally considered to be effective if
the levels of significant noncompliance among major industrial permittees is maintained below 6%.
Given the tact that must approved pretreatment programs are still relatively inexperienced, a 20% level
of SNC for SIUs appears to be a reasonable starting point to assume that POTW enforcement is
inadequate. As POTWs gain experience, the level of SNC should decrease, and thus, this definition can
be made more stringent.
' Sec SNC definition included in section 3 4 1 of the PCME. The ANPR for the Domestic Sewage Study recommended that
the definition of SNC in the PCME be incorporated into the definition of significant violators for industrial users (Section
40t.S(fK2).
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3. Enforcement Response Procedures
Although most approved programs describe the authorities that are available to the POTW and the
procedures for addressing SIU noncompliance. few programs specify what action will be taken or wJ
it should occur. POTWs have been required to develop enforcement response procedures under conscm,
decrees with specific timeframes for initiating informal to formal enforcement. These timeframes range
from 14 to 60 days.
While a specific timeframe for POTW action against an SIU in SNC has not been set. as a general rule
EPA recommends that a POTW respond initially to each violation within 30 days from the date the
violation is reported or identified to the POTW. As part of the initial responses, the POTW should
evaluate the violation and contact the SIU (e.g.. telephone call, warning letter, or meeting). Where
formal enforcement is needed as a subsequent enforcement response, the appropriate timeframe is 90
days from the date of the initial response to the violation. This timeframe is equivalent to the expectation
for initiating formal enforcement in the NPDES program.
The Approval Authority should review the Control Authority's actions carefully to determine whether
it has evaluated the violations and contacted the SIU 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 20"% or greater, the adequacy of Control Authority
enforcement procedures should be reviewed. If the procedures are found to he inadequate, the
procedures should be modified. The Approval Authority might require modification of the approved
program, through the NPDES permit or possibly an administrative order requiring the adoption of new
procedures along the lines of those included in the PCME Guidance. The Control Authority shouldi*.
listed on the QNCR in noncompliance until it has taken those actions required of it by the Appn)
Authority.
Even where the SIUs have a low level of significant noncompliance, the Approval Authority should
review the performance of the Control Authority to ensure 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.
E. Failure to Enforce Against Pass-Through and Interference
Definitions of industrial user discharges that interfere with a POTW or pass-through the treatment
works were promulgated January 14, 1987 (52 FR 1586).
Interference generally involves the discharge of a pollutant(s) which reduces the effectiveness of
treatment such that an NPDES permit limit is exceeded. The pollutant that caused the interference will
be different from the pollutant in the permit that was exceeded. (If the pollutant that causes the violation
is the same as the pollutant in the permit that was exceeded, pass-through has occurred.) The POTW
is responsible for identifying and controlling the discharge of pollutants from IUs that may inhibit or
disrupt the plant operations or the use and disposal of sludge. The POTW must monitor IU contributions
and establish local limits to protect its sludge.
The POTW should have written procedures to investigate, control and eliminate interference and
pass-through. Whenever interference or pass-through is identified, the POTW should apply such
procedures to correct the problem. Section 403.5 of the General Pretreatment Regulations requires
that the POTW develop and enforce local limits to prevent interference and pass-through from indiisf-
contributors to the treatment works. If a POTW has permit limit violations that are attributable
industrial loadings to its plant, it is also a violation of Sea . n 403.5. The POTW should be reported on
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the QNCR for failure to enforce against pass-through and/or interference, if the POTW has two or
more instances of pass-through and interference in any month or 3 or more instances in a quarter.
The POTW is responsible for monitoring to detect these discharges and enforcing against the IU where
it contributes to permit exceedances. The PCME Guidance recommends one inspection and/or sampling
visit each year for each SIU. Many Approval Authorities require the POTW through its NPDES permit.
to monitor the influent, effluent, and sludge at least annually to evaluate the potential for interference
and pass-through. In a few cases, special monitoring has been required for septage and other waste
haulers or to monitor corrective actions for past violations of interference and pass-through. POTWs
that fail to have quarterly monitoring of their SIUs (by the POTW or SIU as discussed under the previous
criterion) and/or have not developed appropriate local limits to prevent interference or pass through
are generally unprepared or unable to enforce against interference or pass-through. These POTWs
should be reported as failing to adequately implement their pretreatment programs.
POTW REPORTING TO THE APPROVAL AUTHORITY
F. Failure to Submit Pretreatment Reports Within 30 days
This criterion already exists under Category I of 40 CFR Part 123.45(a). The term "pretreatment report"
should be interpreted to include any report required by the Approval Authority from the POTW
(including publication of significant violators 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 he tracked as schedule requirements 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 he reported on the QNCR as in noncompliance.
OTHER POTW IMPLEMENTATION VIOLATIONS
G. Failure tu meet Compliance Schedule Milestones by 90 Days or more
Compliance schedules are frequently used to require construction of additional treatment, corrective
action. Spill Prevention Contingency and Countermeasure plans, additional monitoring that may be
needed to attain compliance with the permit, and any other requirements, especially local limits. The
schedules divide the process into major steps (milestones) that can 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 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.
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 attain final compliance within 90 days of the compliance deadline in an enforcement order is
considered SNC.
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H. Any Other Violatinnf 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 thfl
may not be covered by the specific criteria in the definition. These violations may include instant
where the approved program and/or implementation requirements are considered to be inadequate to
control IU contributions to the POTW (e.g. failure to develop and/or enforce local limits), to monitor
for SFU compliance with pretreatment requirements, or to enforce requirements and obtain remedies
for SIU noncompliance.
HI. REPORTING ON THE QNCR
The Quarterly Noncompliance Report is prepared by NPDES States and EPA Regions each quarter.
It lists violations of Federally designated major NPDES permittees that are of concern to the Agency.
The format is described in Section I23.45(a) of the 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
hns taken, and the current compliance
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QNCR (Section 123.45)
Type of violation Regulation Subparagraph
1) Failure to implement or enforce industrial pretreatment (a)(iii)(B)
requirements
(Criteria A-E)
2) Pretreatment Report - 30 days overdue (a)(ii)(D)
(Criterion F)
3) Compliance schedule - °0 days overdue (a)(iii)(C)
(Criterion G)
4) Other violation or violations of concern (a)(iii)(G)
(Criterion H)
The criterion should he listed under the type of violation as the example (Section IV) 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 he noted under comments. In the examples, all dates
on the QNCR are written in six digit numbers representing the month, day. and year. The date. January
(), 1(>S7 is entered as OKNS7 for the PCS enerated ^
The Region or approved Stale should contact the POTW promptly when a pretreatment implementation
violation is detected. The Region/State should also indicate its response to the POTW's failure to
implement an approved program on the ONCR In determining the appropriate response, the
Region/State should consider the impact of the violation. POTW compliance history, the numher of
SIUs. and the nature and/or duration of the violation. Initial violations may he resolved through training,
conferences, or on-site reviews The Keginfi.il/Stale response should he timely and escalate to formal
enforcement (an administrative order or judicial referral) it the POTW fails or is unahle to comply in
a timeU fashion (see example 2) The date the action was taken should also he indicated on the ONCR.
Planned actions hy the POTW or its It \ and projected dates should he noted under comments
C. Compliance Status
The ONCR also tracks the status of each instance of reportahle noncpmpliance. 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 pending" means the permittee is
making acceptable progress according to a formal schedule (i e., through an administrative or judicial
order) to correct the violation. "Resolved" means the permittee no longer exceeds the ONCR 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 dale 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 ONCR criteria.
The "comments" column can be used to describe the violation, explain permittee progress, indicate
potential remedies, projected 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.
11
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IV. EXAMPLES OF REPORTING ON THE QNCR
The following examples illustrate how violations and agency responses are reported. Example 1 is a
moderate size POTW that has refused to implement the program. Example 2 is a small POTW wh
needs assistance. In each example, instances of noncompliance were addressed by an administrate
order after an initial warning.
A) Example 1
Scenario: Hometown's pretreatment program was approved in June 1985. The permit required an
annual report, fifteen days after the end of each year, beginning January 15, 1986. The
program required that permits be issued to 15 SIUs by June 30. 19X6. The POTW was audited
in August 1986 and had failed to permit and inspect its IL's and failed to submit an annual
report.
QNCR List ing
INSTANCE OF
NONCOMPLIANCE
Issue permits
(Criterion A)
Hometown WWTP. Hometown.
REG
DATE SUBPARA
0630H6 (iii)(B)
US 00007
ACTION COMPLIANCE •
(AGENCY/OATH) STATUS (DATE)
Audit RP (033 187)
(F.PA/()X.V)X(,)
AO *I23
( State/I J331S7)
Inspect SIUs
(Criterion B)
Submit Annual
Report
(Criteria F)
COMMENTS
083086 (iii)(B)
011587
Audit RP (033187)
(EPA/UH3IW,)
AO#123
(State/033187)
Phone call RP (033187)
(State/013087)
AO#123
(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. 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.
J
12
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Discussion: The entry on QNCR for Hometown shows the name and permit number of the facility.
The Control Authority also covers two other permittees. Three re-portable noncomplinnce
criteria were exceeded (see sections I and II of this guidance). 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 "RP" (resolved pending) for all three
violations. The comments indicate the compliance deadlines.
B) Example 2
Scenario: Little Burg's pretreatment program was approved January I. 1986. The facility has two
Slt's. one is a food processor and the other is a pharmaceutical manufacturer. Little Burg
has had loads that have resulted in permit violations of BOD (March • June 1986). The State
Approval Authority issued an administrative order September 30. 1986 to establish a
schedule for issuing ll/' permits. The ROD violations were considered resolved for reporting
purposes as of October 1, 1986.
QNCR Listing
Little Burg WWTP. Little Burg. L'S 0008
INSTAM Io( HKi . ACTION COMI'I.IANCH
NON( OMH I\N( I DATT. StWAKA (Atir.NCY/DATI:) STATUS (OATF)
l-nlorcc .ILMIMM o^lXf, (iii)(H) AO* 1 RP (OUIX7)
Hi1 (State/OOmxr,)
pass-tluouch. Warning letter
interference (State/04I5*f>)
(Criterion L)
Criteria R 043086 (iii)(B) AO#1 RP (033187)
(State/093086)
Warning letter
(Slate/051586)
Criteria F-: 053186 (iii)(B) same RP (033187)
Criteria II 063086 (iii)(B) same RP (033187)
COM.MKMS
State has provided training to Little Burg and PRELIM to calculate local limits (10/86). City will issue
permits by 4/15/S7.
13
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Discussion: Little Burg has a history of problems from industrial loadings. The pretreatment violation
is a lack of enforcement against interference and pass-through. The same violation
occurred four months in a row. The POTW also had a violation of its BOD limit whidfl
met the criteria for reporting on the QNCR. In this case DMR data were critical flags OT
an interference/pass-through problem. The solution is believed to be local limits and
permits for the SIUs. The administrative order established a schedule which is being
tracked. The original BOD violations have been resolved because the SIUs have reduced
their loads and are preparing to add treatment. When the POTW has completed the
development of local limits and issued the permits, the instances of noncompliance will
be deleted from the QNCR. The State will continue to monitor progress each quarter
through reports and/or inspections.
V. COMPLIANCE EVALUATION
EPA or the approved State should use pretreatment compliance inspections, annual reports, audits, and
DMRs to evaluate the compliance status of the permittee. At a minimum, available data should be
reviewed every six months to determine whether the POTW is in compliance This resiew m.ty occur in
conjunction with the conduct of an audit or inspection or the receipt ot a report. 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 he 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 already require that receipt of an
annual report (or periodic report) and its due date must be entered into PC'S as .1 permit schedule
requirement. This tracking would allow Regions and States to forecast when reports are expected and
detect reporting violations, similar to the process for tracking discharge monitoring reports and other
scheduled events.
The Pretreatment Permits and Enforcement Tracking System. (PPETS). has been developed, as a parT
of PCS, to track the overall performance of POTWs with their pretreatment requirements and the
compliance rates of significant industrial users. Users guides and training will be provided to Regions
and States in the fall of 1987. A few examples of the data which PPETS will include for each POTW are
the number of significant users (SIUs). the number of required control mechanisms not issued, the
number of SIUs not inspected or sampled, the number of SIUs in significant noncompliance (SNC), and
the number of enforcement actions. Most of the data in PPETS will only be indicative of potential
violations. The apparent violation should be verified as a continuing problem before the instance of
noncompliance is reported on the QNCR. The data elements in PCS and PPETS that may 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 through periodic reports from the POTW, compliance inspections, audits, meetings, or requests
for compliance data and information.
14
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Table 2
REPORTABLE NONCOMPLIANCE CRITERIA AM) RELATED PCS/PPETS
DATA ELEMENTS
Criterion
Criterion A
-- Failure to Issue Control Mechanisms
Data Source
PPETS
Criterion B
-- Failure to Inspect SIUs
PPETS
Criterion C
-- Failure to FstaMish Self-Monitoring
PI'liTS
• Data Element
o Number of SIUs without
required control
mechanisms10
o Control mechanism
deficiencies
o Number of SIUs not
inspected or sampled1*
o SIUs in SNC hut not
inspected or sampled10
o SIL.'s not inspected at
re-quired frequency
o Inadequacy of POTW
inspections
o SIUs in SNC' with self-
monitorini:10
Criterion I)
-- Failure to Implement Standards
P( S
PPETS
o Violation Summary
o liflluent data10
o SIUs in SNC10
o Number of enforcement
actions10
o Amount of Penalties10
o Adopted local limits10
o Technical evaluation for
local limits'"
10 'Water Enforcement National Data Base (NVENDB) Jju elements for which data entry is required, not optional
15
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Table 2
(Continued)
Criterion
Criterion D (Continued)
- Failure to Implement Standards
Data Source
PPETS
Criterion E
-- Failure to Enforce
PCS
PI'l-TS
Criterion F
— Failure to Submit Annual Report
Criterion G
— Failure to Meet Compliance Schedules
PCS
PCS
Data Element
o Deficiencies in P'OTW
application of standards
o Date permit required
implementation10
o Number of significant
violators published in
the newspaper10
o Viol.it ion summary
o Effluent data10
o Same asC'rilerion D
o Pass Through/Interfer-
ence incidents
o Deficiencies in POTW
sampling
o Deficiencies in POTW
application of standards
o Enforcement respons^
procedures used
o reporting schedule
o permit reporting10
o compliance schedule
events10
10 Water Enforcement National Data Base (WENDB) data elements for which data entry is required, not optional
16
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VI. RESPONSE TO POTW NONCOMPLIANCE
The QNCR requires reporting of noncompliance. as well as the action taken hy the approved State or
EPA Region to resolve the noncompliance. EPA Regions and approved States should review and verify
all problems or violations related to PQTW program implementation, regardless of whether they are
or will he reported on the QNCR. Specific implementation requirements must be identified and
compliance should be systematically reviewed and evaluated. In determining the appropriate response,
the Approval Authority should consider the nature of the violation, the length of time the POTW has
been approved, and the compliance history of the permittee.
Given the fact that implementation of pretreatment program requirements is a relatively new experience
for many POTWs, formal enforcement may not be initially appropriate. The POTW may be unaware
of how to correct the violations that have occurred and may need training and guidance from the
Approval Authority. The opportunity for a "second chance" is an important option for the Approval
Authority. In all cases, the POTW should be advised1 of its violations. However, if the violation is the
first such problem and the POTW is willing to implement the approved program and needed corrective
action, then technical assistance may be appropriate to help the POTW personnel understand what is
expected and when.
EPA recommends closely monitoring the progress of the POTW in issuing, reissuing, or ratifying its
control mechanisms. If the POTW consistently fails to issue and maintain its control mechanisms in a
timely fashion--th.il is issuance in accordance with the approved program or permit or the requirement
of an enforcement order within ''(I clays after permit expiration—the Approval Authority should issue a
warning letter or administrative order to the C'ontrol Authority and establish a schedule for issuing the
necessary control mechanisms.
• »
Where a schedule is needed for corrective action, the Approval Authority may wish to establish that
schedule in an enforcement order. When a schedule extends for *'() days or longer. liPA recommends
that the Approval Authority establish the schedule; in an enforcement order. A detailed schedule with
intermediate milestones will help the POTW allocate appropriate time and priority to the required
tasks, while he'pini; the Approval Authority assess the I'O'JW's progress The Approval Authority may
use a .'Wx letti-'r to ohl.n'n information and time estimates from the f'OTW to develop the compliance
schedule ( ompli.mce with an enforcement order is tracked on the ONCR until the POTW has returned
to full compliance with the NPDMS permit.
Formal enforcement will be the appropriate initial response in a growing number of cases as POTWs
become more knowledgeable of their implementation responsibilities. Where the POTW has
substantially failed to implement its approved program or demonstrates inadequate commitment to
corrective action on a timely basis, the Approval Authority should initiate formal enforcement action."
Formal enforcement may also be appropriate as an initial response where the POTW's failure to enforce
has contributed to interference, pass-through, or significant water quality impacts. When a violation by
the POTW has been identified and the POTW has failed to initiate corrective action in the quarter
following identification on the ONCR. the Approval Authority should strongly consider formal
enforcement action.
11 EPA Headquarter* is developing criteria for bringing formal enforcement actions and model pleadings and complaints for
judicial actions against POTW& for failure to implement their pretreatment programs.
17
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VII. SUMMARY
The QNCR is an important tool to identify priority violations of permit conditions, to overview the
effectiveness of State and EPA compliance and enforcement activities, to provide a framework to achievd
a nationally consistent pretreatment program, and to compile national statistics on noncompliance fcw
the NPDES program. The existing rule for noncompliance reporting requires EPA and the States to
report instances where POTWs have failed to adequately implement and enforce their approved
pretreatment program.
Nearly 1500 POTWs are now approved. Pretreatment will he the primary mechanism to control toxic
and hazardous pollutants which may enter the POTW or its sludge. Therefore, it is vital that EPA and
the approved States routinely evaluate POTW compliance with the requirements of their approved
program and report POTWs that have failed to adequately implement their approved program.
This Guidance is intended to assist Regions and approved States evaluate and report POTVV
noncompliance with pretreatment requirements. The Guidance explains the criteria that should he used
to evaluate principal activities and functions necessary to implement the program In some cases.
approved States and Regions may need to modify the program and/or NPDliS permit because the
existing requirements are inadequate or because conditions have changed. In general, those POTWs
that meet the definition of reportahle noncompliance should be priorities for resolving the inadequacies
in approved programs or permits.
EPA plans to incorporate specific criteria into the N'PDF.S Regulations for noncompliance reporting
of POTWs which fail to adequately implement their pretreatment programs The regulation will he
developed after Regions and approved States have h id the opportunity to usf this Guidance for at least
12 months to assess the effectiveness of the criteria in identifying serious noncompliance. Comments
on the use of this guidance and the reporting of POTW noncompliance required under the Strategic^
Planning and Management System in FY 1988 will be carefully evaluated for future regulatory anfl
program reporting requirements.
18
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II.C.12
"PCS PC PERSONAL ASSISTANCE LINK USERS GUIDE", updated December 21, 1988.
Table of Contents only.
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PCS PC Personal Assistance Link (PAL) Usars Gulda
Document Number PCS-PA88-1.01
December 21, 1988
PCS USER SUPPORT
202/475-8529
U.S. EPA CEN-338)
401 II. St. SW
Washington, DC 20460
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PREFACE
The Permit Compliance System (PCS) is a database management system
that supports the NPOES regulations. The system is available to
registered users in State and EPA Regions through the National
Computer Center in North Carolina.
PCS PERSONAL COMPUTER (PC) PERSONAL ASSISTANCE LINK (PAL) is a
user friendly PC software package which was developed specifically
to allow managers to generate reports from PCS quickly and easily
using only a few keystrokes on their microcomputers. In addition
to the PCS PC-PAL Manual, the following manuals are available on
the PCS system.
PCS Data Entrv» Edit, and Update Manual - General Overview of
PCS and detailed information on entering data into PCS. In-
cludes documentation on PCS-ADE and PC-ENTRY.
Generalized Retrieval Manual -Provides complete information
about how to run all flexible format and fixed format reports
available in PCS. This includes preprinting OMRs and running
the QNCR. ' .
Inquiry User's Guide - Describes in detail the interactive
retrieval software that provides interactive -access to the PCS
database.
Data Element Dictionary - Gives a detailed description of each
type of data available in PCS* field by field.
PCS Codes and Descriptions - Provides a complete list of all
of the code value tables used in PCS. Referenced by the PCS
Data Element Dictionary
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TABLE OP CONTENTS
1.0 INTRODUCTION TO PCS PC-PAL 1-1
2.0 OVERVIEW OP PCS 2-1
3.0 USING PAL . 3-1
3.1 Initiating a PAL Session 3-1
3.2 Accessing PAL • ' . 3-2
3.2.1 Using the "HELP" option 3-4
3.2.2 Using the "REPORTS" option 3-5
3.2.3 Using the "END" Option 3-9
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4.0 Significant NoncompH anca Reports 4-1
4.1 Current QNCR Facilities Report 4-1
4.2 Effluent Report . 4-9
4.3 Compliance Schedule Report 4-17
4.4 DMR Non-Receipt Report 4-24
5.0 INSPECTION REPORTS 5-1
5.1 Inspection Scheduling Report 5-1
5.2 Last Inspection Completion Report 5-15
6.0 PRBTREATMENT REPORTS 6-1
6.1 Inspection/Audit Scheduling Report 6-1
6.2 Last Inspection/Audit Completion Report . • 6-15
6.3 Annual Report Scheduling List • 6-29
6.4 Annual Report Submission List ' 6-42
7.0 ENFORCEMENT ACTION REPORTS 7-1
7.1 Formal Enforcement Actions Report 7-1
7.2 Closed Formal Enforcement Actions Report ..... 7-16
8.0 EXPIRED PERMITS REPORTS . . 8-1
8.1 All Expired Permits Report 8-1
8.2 Applications Non-Receipt Report 8-15
A.O APPENDICIES Appand-1
Appendix A. PCS USER COMMENTS A-l
Table of Contents iv
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III.B.11
"Guidance Regarding Regional and headquarters Coordination on Proposed and
Final Administrative Penalty Orders on Consent under New Enforcement
Authorities of the Water Quality Act of distributed August 28, 1987.
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Jjl.
Guidance Regarding Regional and Headquarters Coordination on
Proposed and Final Administrative Penalty Orders on Consent
Under New Enforcement Authorities -of t.-,e water Quali-y Ac-"
of 1987.
I. Purpose
The -purpose of tr. is guidance is to explain t.-.e interaction
require: cetweer. Headquarters (.-::) ar.d tr.e' Regions for asxir.ist
penalty- art ior.s ta
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3. WQA Class I and II S404 Penalties
Each Regional office shall submit to Suzanne
Chief, Policy and Regulations Branch, Office of Wetlands
Protection (CWP), copies of the following prior to issuance:
2.
The first tr.ree "lass I a.-.d t.-.e first three Tlas; II
comoi.-.ej complaints an-J penalty orders with accompanying
letters proposing t.ne assessment of penalties prior to
issuance jnder 5314 of tr.e WQA.
The first tr.ree Tlass I and first tnree :Tlass II
final penalty o-lers on consent prior to issuance
ur.der $314 of tr.e WQA.
C. Implementat ion
The Office of Water Enforcement and Permits or the Office
of Wetlands Protection, -as appropriate, will distribute copies
of t.K.e orders to tne Office of Enforcement and Compliance
Monitoring. EPA Regions lust obtain comments and concurrence
from CcXM - Water, and OWEP or 3WP, as appropriate, on initial
proposed penalty orders/complaints and final orders on consent
oefore signing .or issuing these -Jocu.Tients to the respondent or
to any other party outside of EPA. OECM and
provide one joint response to the Regions to
burdens on the Regions.
OW offices will
-linimize coorriina'-
In order to expedite Headgua-ters :-eview of proposed
and final orders, tne Regions mus- include an action memo
or a fact sneet explaining the fa :jal oasis, rationale,
and significant issues associated with each proposed and
final order. This material should show the basis for using
the procedures chosen, and show application of penalty
assessment criteria. We hope that in many cases the Regions
will be able to use the same action memo already developed
for their own internal use. The package also should designate
a contact person in the Region with whom Headquarters should
communicate on the package.
The Region may, at its discretion, submit in the package
any other relevant materials which may be of assistance to
Headquarters during the review process.
OWEP, OWP, and OECM review for purposes of deciding on
concurrence will focus on whether the submitted documents'
are consistent with national law and pol cy in the area of
WQA programs, WQA enforcement and enforcement generally.
The review focus will be on the legal and technical soundness
of the administrative documents submitted by the Region.
The review typically will not focus on whether an administrat
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penalty action is the best alternative enforcement response,
although particular attention will be given to this issue on
administrative cases that raise precedential national issues.
The Headquarters concurrence memorandum may require document
changes needed to protect the Agency's enforcement position, or
may merely suggest changes preferred by Headquarters reviewers
for the Region to consider implementing.
OWEP, OWP, and OECM will respond jointly in one written
communication to the Regions no later than ten working days
from receipt of the package unless there is good cause for a
delayed decision. Headquarters may need to delay its response
if, for example, additional information from the Region is
essential before concurrence may be given. If good cause for
delay exists, the appropriate OW Branch Chief must immediately
notify the affected Region of the delay, and provide the reasons
for the delay.
Upon resolution of the matter causing delay, OWEP,
OWP, and OECM agree to respond to the Region as quickly as
possible, but no longer than ten working days from receipt of
all information requested.
If Headquarters does not respond to the Region within
the appropriate time frame, the Region must notify OWEP or
OWP, as appropriate, that a response has not been received.
If the designated representatives for OWEP or OWP do not
respond to the Region within one day, the Region may assume
that OWEP or OWP, and OECM have no comment on the proposed
or final order and concur in its issuance.
Where possible, the Regions are encouraged to forward
diverse cases, involving a variety of WQA violations, to
Headquarters for concurrence.
IV. Other Procedures to Facilitate National Management of the
Administrative Penalty Program
A. Submission of Hard Copy of Penalty Orders
Currently, Regions are asked to submit copies of all
administrative orders (§309) issued to OWEP. Through
this guidance, we are also asking the Regions to submit
hard copies of proposed and final penalty orders, either
litigated or on consent, to OWEP or OWP as appropriate
within 30 days of issuance of the order. These hard
copies will be used as one mechanism for evaluating the
effectiveness of implementation of administrative penalty
authority and assessing national consistency in the use of
the authority. Submission of hard copy should in no way
delay or impede a Region's ability to use the administrative
penalty authority.
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3. A-tomated 7rac
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Headquarters Oversicr.t of Administrative Penalty Implementatio:
Headquarters will exercise oversight of Regional use of
administrative penally authority primarily through program
reviews or audits (e.3., integrated into the annual'mid-year
evaluation), as opposed to case-oy-case, real-time review.
T-.e a-.::.-.s will ze supplemented ay data from tne automates
• r ac< L.~ ; system and information developed tr.roucn review
of tne r.ard copies of penalty orders suomitted oy tne
P.e-gioris. In assessing overall performance, Headquarters
will examine tr-e following areas:
- overall penalty levels ootained
- conformity witn penalty policy as estaolished
tnrougn review of penalty wor
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III.B.12.
"Use of Administrative Penalty Orders (APO'S) in FY 89", dated March 13,
1990. This document is reproduced at VII.IS. below.
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