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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                           8
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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                             10

  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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                                     11


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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                           .         12

    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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                                13

     15.  Speech by Assistant Administrator, OECM to Association of
     Metropolitan Sewerage Agencies, dated August 8, 1985.

     16. "HIGHLIGHTS FROM DECIDED AND SETTLED CASES UNDER THE  NMP",
     dated August 27, 1985.                    '

     17. "DEADLINES AND THE NATIONAL MUNICIPAL POLICY", dated January
     30, 1986.

     18. "Letter of the Administrator to James Borberg, President of
     the Association of Metropolitan Sewerage Agencies", (concerning
     penalties against municipalities), dated October 21, 1986, (See
     No. IV.C.ll this Compendium).

     19. "National Municipal Policy Litigation," dated December 23,
     1986.

     20. "Interim Guidance on Joining States as Plaintiffs," dated
     December 24, 1986, as corrected February 4, 1987.  Reproduced at
     IV.B.32., this compendium.

     21. "National Municipal Policy Enforcement", dated September 22,
     1987, with attachment.

     22.  PRESS BRIEFING MUNICIPAL COMPLIANCE WITH THE CLEAN WATER
     ACT", dated July 27, 1988.  Selected portions.

B. PRETREATMENT

     1. "Coordination Between Regional Enforcement and Water Programs
     Personnel in Implementing the National Pretreatment Program",
     dated November 29, 1978.

     2. "Incorporation of Pretreatment Program Development Compliance
     Schedules into POTW NPDES Permits", dated January 28, 1980.

     3. "Statutory Deadlines for Compliance by Publicly Owned
     Treatment Works Under the CWA", dated March 4, 1983.

     4. "Example Language for Modifying NPDES Permits for Pretreatment
     Program Approval", dated September 22, 1983.

     5. "Procedure Manual for Reviewing a POTW Pretreatment Program
     Submission", dated October 1983.  Table of Contents only.

     6. "GUIDANCE MANUAL FOR POTW PRETREATMENT PROGRAM DEVELOPMENT",
     dated October 1983.  Table of Contents only.

     7. "Guidance Manual for Electroplating and Metal Finishing
     Pretreatment Standards", dated February 1984.  Table of Contents
     only.

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               •   .         14                              ;

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.

-------
                                15

     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

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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

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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.

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CBA Compliance/Enforcement            9-ii             Goidance Manual 1985

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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

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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

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        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

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                                                                       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.

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          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

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                               -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

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       THE ENFORCEMENT MANAGEMENT SYSTEM








NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM




               (CLEAN WATER ACT)
      U.S. ENVIRONMENTAL PROTECTION AGENCY



                OFFICE OF WATER



                      1986

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                              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

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                        -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

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              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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                           - 2 -

nation receive fair treatment under the law.  With the growth
in the number of States approved to administer their own NPDES
programs, EPA and the States face the challenge of ensuring
fairness and consistency among NPDES programs while maintaining
a strong Federal/State partnership which is based on mutual
trust and respect.

Effective use of available resources is also important*to
achieving a consistent, national enforcement program.  In
implementing compliance tracking and enforcement systems,
administering agencies 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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                           - 3 -

•translating compliance information into timely and appropriate
enforcement actions.  It also establishes a system for identifying
priorities and directing the flow of enforcement actions based
on these priorities and available resources.  Finally, the EMS
provides the flexibility for each administering agency to develop
management procedures which are best suited to .its operations
and resources with the goal of most efficiently translating
compliance information into timely and appropriate enforcement
action.

The original 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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                               - 4 -

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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                                      - 5 -
           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
90

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                           -6 -
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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                           - 7 -

the "Annual Operating Guidance" which identifies priority program
activities for the operating year, and agency policy documents.
Administering agencies are expected to be knowledgeable about
these documents; however, they are not included as chapters in
the EMS since they are frequently effective for a limited
period of time or are more inclusive than the 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.
93

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                            - 9 -

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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                        - 10 -

   -historical inventory for-majors and significant minors
    will consist of many parts, including a violation summary
    report (see Attachment C) and a log of previous enforce-
    ment actions.  The summary and log are discussed in
   •greater detail-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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                           - 11 -

Principle No. 2;  Flow of Information
In order to ensure that the enforcement system is current, the
flow of information into the system is critical.  With the
growth in the number 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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                           - 12 -

         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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                           .- 13 -

         its availability for.review should be less than a
         week.  Special procedures and/or agreements should be
         established with other programs (e.g., RCRA, TSCA, and
         CERCLA) to insure the timely receipt of information
         that may have a 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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                    - 14 •-        .

(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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                                      - 15 -

                  (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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                    - 16 -

(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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                                       - 17 -

                   (6)   Have procedures that identify who is responsible
                        for completing each phase of the evaluation and who
                        should make each decision as the instance of apparent
                        noncompliance is processed.

            Principle No.  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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                           - 18 -

   E.  -Procedures-for information flow and decision-making
       necessary to secure concurrence or nonconcurrence on the
       enforcement action.

   F.  Time frames for completing a determination as to whether
       the violation is "actionable" and initiation of the
       appropriate response.  For example, the -provision could
       \state that the overall time "from .the date a report/event
       is due to initiation of the appropriate art:on should
       not exceed 45 days.  The administering ag•-?/ should
       establish time frames which are subject to review.

   G.  Procedures for escalating enforcement action if compliance
       is not achieved expeditiously after taking the initial
       action.
   R.  Procedures for closing out and updating the file and
       for returning the compliance information to the data
       base.  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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                               - 19 -

    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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                            - 20 -

^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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                           - 21 -

C.  Tiraeframes for reporting the findings of a field
    investigation.  For example, the procedure may require a
    full report to be submitted to the enforcement program
    within 30 days of the completion of the investigation.

D.  A mechanism for informing field investigation personnel of
    the utilization of field surveys.

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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                               -22 -

    C.  A system of evaluating specific activities in terms of their
        quality, timeliness, results, and accomplishment of program
        objectives.

    D. ;A system for assessing how the compliance data,tas indicators
        of environmental results, help-meet the goals of the CWA.

    E.  Procedures that will result in-effective communication
        between the USEPA Regional Offices and the States on all
        aspects of the enforcement process, including: the current
        status of noncompliant sources and enforcement actions as
        reported in the Quarterly Noncompliance Reports;  audit of
        approved State programs; problem resolution; advance notifi-
        cation of enforcement actions initiated by USEPA in approved
        States; and similar program matters.

Conclusion
The successful Enforcement Management System should contain certain
key elements while remaining a flexible and dynamic system which is
geared to the organization and resources of the particular adminis-
tering agency.  The system 'Should be'Strong and.resilent enough to
continue * and•to translate compliance information 'into enforcement
results, regardless of pressures that affect the system.   The key
to the success of the system is the unimpeded flow of information
through the system which facilitates the rapid return of a non-
complying permittee to compliance.  Good communication among all
parties in the system is essential to its success.

This chapter of the Enforcement Management System has described the
basic principles of the system.  Implementation of the principles    j .-

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                               - 23 -

number of essential documents support this framework in order to
make the system whole (see Appendix I).   The remaining chapters  of
the EMS contain the most important of the supporting enforcement
guidance and policies.

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                            ATTACHMENT A
                      VIOLATION REVIEW PROCESS

Many NPDES permittees 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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                                -2-
General Screening  Considerations
An administering agency's decision on whether to initiate an
enforcement action,  and the type of action which is appropriate,
should include an  evaluation of all available data to 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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                               - 3 -
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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                                -4-
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

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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

-------
                               - 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,

-------
                               - 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.

-------

-------
                                                                      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).

-------

-------

       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

-------
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

-------
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

-------
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

-------
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

-------
                                 •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

-------
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

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     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

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     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

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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

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                           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

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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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                               -2-
       -  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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                                 -2-

         ~  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

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                                                                   II.A.3,
"Confidentiality of NPDES Permit Applications" dated April 6, 1978 with
attached memorandum dated March 22, 1978.

-------
•210

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                                                   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

-------

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                                                                  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,

-------

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                                                                  III.A.4.
"Recommended Format for CWA Section 309 Administrative Orders",  dated July
30,  1985 (Incorporated in III.A.5).

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                                                                  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

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   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.

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 3.    The discharge of pollutants by any person into the waters of
      the United States, except as authorized by an NPDES 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

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      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.

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 "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

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         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.

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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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                              - 6 -


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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                              - 7 -


          (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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                                    -  8  -
     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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                               -  9 -


 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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                               -  10  -


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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                              - 11 -
     (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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                              - 12 -


to the administrative record.  The respondent may offer into
evidence th* response to the administrative record and any facts,
statements* explanations, documents, testimony, or other exculpa-
tory  items which 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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                              - 13 -


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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                               -  14  -


      (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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                              - 15 -
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

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                             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)

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     - 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

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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.

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     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

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r
<

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                                                                  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
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      GUIDANCE ON CHOOSING AMONG




    CLEAN WATER ACT ADMINISTRATIVE,




CIVIL AND CRIMINAL ENFORCEMENT REMEDIES
                                    August.  1987

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     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

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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.

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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?

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           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

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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

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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

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                                          :zzzr
      GUIDANCE ON CHOOSING AMONG




    CLEAN WATER ACT ADMINISTRATIVE,




CIVIL AND CRIMINAL ENFORCEMENT REMEDIES

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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.]

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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.

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                               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

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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?

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           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

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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

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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

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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

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            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."
                                                              (

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            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.

-------

-------
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

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                               -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

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                    -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

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                                                                  III.B.7.
"Guidance on Retroactive Application of New Penalty Authorities under the
Clean Water Act", distributed August 28, 1987.

-------

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    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.

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     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

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                                                                  III.B.8,
"Guidance on Effect of Clean Water Amendment Civil Penalty Assessment
Language", distributed August 28, 1987.

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   GUI2ANCE ON EFFECT OF CLEAN WATER ACT

AMENDMENT CIVIL PENALTY ASSESSMENT LANGUAGE

    — Aoorcpriate Calculations Per Day
           and/or Per Violations

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                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

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                 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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                               -2-


 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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                            -2-
BACKGROUND

EPA and authorized States  issue NPDES permits for periods not
to exceed five years.  Permit limits are based either on the
application of available technology or on the protection of
water quality, whichever is more stringent.  The clean Water
Act (CWA) establishes  two  levels of technology standards and
deadlines for industrial compliance:  best practicable control
technology currently available (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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                            -3-


A sound technical and legal basis for permit limits is also
provided by State water quality standards.  All States have
standards for each designated water use which include both
numeric criteria for specific pollutants and general conditions.
Expanding the scope of these standards and improving their
scientific basis is a continuing process which is now being given
additional attention by EPA, the States, and throughout the
scientific community.  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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                               -2-
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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                               -3-
     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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                               -4-
data, developing appropriate testing requirements, determining
whether standards are being violated, and defining appropriate
permit limits.2

Integration of approaches-

     The type of testing that is most appropriate for assessing
water quality impacts depends on the type of effluent and dis-
charge situation.  EPA recommends that an integrated approach,
including both biological and chemical techniques, be used to
assess and control water quality.  The principal advantages of
chemical-specific techniques are that (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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                               -5-


     The chemical, physical, and biological testing to be con-
ducted by individual dischargers should be determined on a case-
by-case basis.  In making this determination, many factors must
be considered, including the degree of impact, the complexity
and variability of the discharge, the water body type and hydro-
logy, the potential for human health impact, the amount of existing
data, the level of certainty desired in the water quality assessment,
other sources of pollutants, and the ecology of the receiving
water.  The specific data needed to measure the effect that a
discharger has on the receiving water will vary according to
these and other factors.

     An assessment of water quality should, to the extent prac-
ticable, include other point and nonpoint sources of pollutants
if the sources may be contributing to the impacts.  Special
attention should be focused on Publicly Owned Treatment Works
(POTW's) with a significant contribution of industrial wastewater.
Recent studies have indicated that such POTW's are often signi-
ficant sources of toxic materials.  When developing monitoring
requirements, interpreting data, and determining limitations,
permit engineers should work closely with water quality staff at
both the State and Federal levels.

     A discharger may be required to provide data upon request
under section 308 of the Act, or such a requirement may be
included in its NPDES permit.  The development of a final assess-
ment may require several iterations of data collection.  Where
potential problems are identified, EPA or the State may require
monitoring to determine whether more information is needed con-
cerning water quality effects.

Use of data-

     Chemical, physical, and biological data will be used to
determine whether, after compliance with BCT/BAT requirements,
there will be violations of State water quality standards result-
ing from the discharge(s).  The narrative prohibition of toxic
materials in toxic amounts contained in all State standards is
the basis for this determination taking into account the desig-
nated use for the receiving water.  For example, discharges to
waters classified for propagation of cold water fish should be
evaluated in relation to acute and chronic effects on cold water
organisms, potential spawning areas, and effluent dispersion.

Setting permit limitations-

     Where violations of water quality standards exist or are
projected, the State and EPA will determine pollution control
requirements that will attain the receiving water designated
use.  Where effluent toxicity is an appropriate control para-
meter, permit limits on effluent toxicity should be developed.
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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                               -6-
to isolate the sources of effluent toxicity/ determine specific
causative pollutants  if possible, and determine the effec-
tiveness of pollution control options in reducing the effluent
toxicity.  If specific chemicals are identified as the cause of
the water quality standards violation, these individual pol-
lutants should be limited.  If a toxicity reduction evaluation
demonstrates that limiting an indicator parameter will ensure
attainment of the water quality-based effluent toxicity require-
ment, limits on the indicator parameter should be considered in
lieu of limits on effluent toxicity.  Such indicator limits are
not limits on causative pollutants but limits demonstrated to
result in a specific  toxicity reduction.

Monitoring-

    Where pollution control requirements are expressed in terms
of a chemical or toxicological parameter, compliance monitoring
must include monitoring for that parameter.  If an indicator
parameter is used based on the results of a toxicity reduction
evaluation, periodic  toxicity testing may be required to confirm
the adequacy of the indicator.  Where biological data were used
to develop a water quality assessment or where the potential
for water quality standards violations exist, biological
monitoring (including instream monitoring) may be required to
ensure continuing compliance with water quality standards.
     EPA believes that  the  intelligent application of an
integrated strategy using both biological and chemical techniques
for water quality assessment will facilitate the development of
appropriate controls and the attainment of water quality
standards.  EPA looks forward to working with the States in a
spirit of cooperation to further refine these techniques.
    February  3,  1984
    Date
Jack E. Ravan
                                   Assistant Administrator
                                          for Water

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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

-------

-------
II. NPDES PROGRAM: PRE-ENFORCEMENT



     B. INSPECTIONS

-------
                                                                   II.B.I.
"Visitor's Releases and Hold Harmless Agreements as a Condition to Entry to
EPA Employees on Industrial Facilities",dated November 8, 1972.  See GM-1.

-------


-------
                                                                    II.B.2,
"Conduct of Inspections after the Barlow Decision dated April 11, 1979.
See GM-5.

-------

-------
                                                                   II.B.3,
"NPDES Compliance Sampling Inspection 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

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      (d)  Open Channel Flow Nozzles           96



      (e)  Slope-Area Method                   97



      (f)  Measurement by Floats               99



     Closed Conduit Flow Measurements        100



      (a)  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

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          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

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                                                    Page No.
A.   Pre-inspection Planning Activities 	 III-l
B.   Coordination of Inspection Activities with
     Permittees, other EPA Programs, and
     Government Agencies 	  III-5
Inspection Types 	 IV-1
A.   Announced and Unannounced Inspections 	 IV-1
B.   Sampling-Type Inspections .... 	 IV-1
C.   Evaluation Inspections .'...."	IV-3
Quality Assurance 	   V-l
A.   Effluent Sampling and Handling 	   V-l
B.   Test Organisms	 . v-2
C.   Facilities and Equipment	 V-3
D.   Dilution Water	V-4
E.   Test Conditions	V-4
F.   Reference Toxicants 	V-4
G.   Record Keeping	V-6
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

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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

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               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

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         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

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                                                                   II.B.6.
"NPDES Compliance Evaluation  Inspection Manual", dated January 1981.   Table
of Contents only.
               . •?>•-. •
               .-M-i=..

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^-&\.&r;^~--^~xVfS&r--

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United States
Environmental Protection
Agency
Office of Water Enforcement
Enforcement Division (EN-338)
Washington, DC 20460
January 1981
Water
  onipiiancs  bvaluation
                     snysi
                                         —

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7

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         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

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      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.

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     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.
                                                                      -'- V

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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
k_ 	
DA
a *—l


N

PDES

VVnsitrn
-------
                                   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

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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

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                                                                     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

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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

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                                                                 II.B.10.
"Use of the New NPDES Compliance Inspection Form",  dated May 14,  1985.

-------

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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.

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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)

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          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.

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                                  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

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                                                                   II.B.ll
Pretreatment Compliance and Audit Manual for Approval Authorities.  See
VI.B.24.

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                                                                   II.B.12.
# "NPDES Compliance Flow Measurement Manual",  dated September, 1981.  Table
of Contents only.

-------

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         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

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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

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                   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

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                                          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-'-

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                               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

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                             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

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                            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

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                                   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

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                                                                   II.B.13.
# "Guidelines on Requirements for Exceptions for NPDES Inspector Training",
dated January 28, 1990.  Without attachments.

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            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

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      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.

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                            - 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.

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WORK SHEET I 1

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       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

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                                    - 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)

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                                  - 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

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                                   - 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.

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                                    - 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.

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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?

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                                              -  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

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WORK SHEET f 2

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                       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

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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.

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APPENDIX

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     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

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   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

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                         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

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-------
  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

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  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

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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

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  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

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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

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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

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6.6  Single-line "Quick Look Report" Using the Absent Logical
 Operator	6-2
6.7  Quick Look Report Using the Comparison Argument   . .  .  6-3
6.8  Quick Look Report with Expanded Data Values   	6-3

7.0  Retrieval Selection Efficiency Considerations   . . .  .  7-1

A.O  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

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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

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                                                                   II.C.2
The "GREAT System" (General Record of Enforcement Actions Tracked), circa
1980.  The GREAT System tracks EPA-issued Administrative Orders (AOs) and
Notices of Violation issued from the commencement of the system until
September 30, 1987. Requests for retrievals should be addressed to Mary
Gair, OWEP, FTS 475-8557.   See also II.C.10.

-------

-------
                                                                   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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                              - 2 -
BACKGROUND

     When the PCS Steering Committee met in March 1985, EPA
Regional representatives stressed the essential need for a positive
statement from EPA Headquarters management to Regional and State
management specifically requiring the support and use of PCS.
Lack of such support may result in an incomplete and unreliable
data base.  With sufficient EPA Headquarters, Regional, and State
support, however, PCS will come to serve several major purposes
for the NPDES program:

     0 PCS will provide the overall inventory for the NPDES program.

     0 PCS will provide data for-responding to Congress and the
       public on the overall status of the NPDES program.  As
       such, it will serve as a valuable tool for evaluating the
       effectiveness of the program and the need for any major
       policy changes.

     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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                              - 3 -
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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                              - 5 -
     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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                              - 6 -
       coded onto PCS coding sheets or in a format that can be
       readily transferred onto PCS coding sheets.  Also, the data
       must be submitted at regular intervals to ensure timely
       entry into PCS.  Once the data are received by EPA, it is the
       EPA Region's responsibility to enter the.data into PCS in a
       timely manner.
Funding
     0 §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

-------
                                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

-------
                                  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).

-------

-------
\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

-------
                                                                   II.C.ll.
"GUIDANCE FOR REPORTING AND EVALUATING POTW NONCOMPLIANCE WITH PRETREATMENT
IMPLEMENTATION REQUIREMENTS",  dated September,  1987.

-------

-------
                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

-------

-------
                                 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.

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The  POTW should also maintain and update its  inventory of SIUs.  EPA is  considering further
rulemaking to require  annual  updates  of the IU  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
      »
     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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                               -3-


     penalty action is the  best alternative enforcement response,
     although particular attention will  be given to this issue  on
     administrative cases that raise precedential national issues.
     The Headquarters concurrence memorandum may require document
     changes needed to protect the Agency's enforcement position, or
     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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                             -5-
     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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