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        WORK
                                  - 4 -

           11-

          vark sheet developed by each
          for each inspector to show

                                                          Off ice should sust be
                                               with B* order 3500.1.  This work
                     to decide:  1) what training is apnlimhle to the inspector
        shMt should be
        or fixst-lim supervisor; 2)  «teehar prwiouB training satisfiM tbt
        and 3)  if it dow not, tten training is planmd and is nmy>1«f>d. A
              > availabl* to doeunnt th> rvquMt for an
A.

1.
                          namr oz^anization, and
        2.  Oieek whether the individual is new or
                                               ii
                                                   si as defined by EPA order
3500.1; also cheek whether the individual is an inspector or supervisor,
whether or not a new employee.  Definitions of new and 'ejqperien
found in EEA order 3500.1.  Specifically those definitions are:
                                                                      d
                 	   -  Individuals newly enployed by EPA after June 29, 1988
                  of previous training in and eiqaerience leading,, (or conducting
                                       ii4anoe inspections, OR
                             -  Individuals rahired by EPA or transferred within
        after June 29, 1988 with no previous training in and eiajerisnoa leading, (or
           trting independently) enviromantal
        tions.
                  ImPtStel' -  Individual* «te
                                                          anployvd by EHk on Juna 29,
        1988 and who have previous training in and •aqparianoa laading,  (or conducting
        independently) anvironBantal ooaplianoa Inffyt* •^li'M/ fl^H inwatioationa in any
           of EBl's cenplianoa and
A.  Under Scope of Training,  list the types of insp

A.1

A.l  Basic CurrieuluB -  Fundamentals of
                                                           tif
1.                     _
line supervisors? tziazefore, nark coluBn 2 yes*
                           TheFundaasntals Gourse applies to all inspectors and first-
                                                                              in
2.
oolunn 3, if the
                                  or first-line supervisor has denonstrated previous
       training and/or experienoe < i iinai run-ate with the objectives of the course.  If
       no, oaqplete eolian 4. .

           Refer to
                  - 9.  for the principles to follow in
training and/or ooMrience, and esanples that satisfy the
                                                                      previous
                                                                      objectives.
4?

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                                    - 5 -
 HOIK SHEET I  1 - EJSTHJCTICNS
                    To develop in inspectors and first line supervisors:

a.  Riowledge of tha Agency's compliance and enforcement policy, the enfor
             and the tolas inapactors play in compliance monitoring and
b.  Riowledge of the extent ana liaitations of O&'s legal authorities to  enter
    and inspect farilitim;
c.  Riowledge of evidentiary requirements and the procedures designed to assure
    that data collected on an inspection will be «*•<—^ir in court;
d.  Riowledge of good work practices related to planning and conducting field
    inspections, including technical and administrative subjects \, and ccnrainic-
    aticns skills;
e.  Riowledge of the requirements of e good quality inspection report; and
f.  Riowledge of how to prepare for and participate in enforcement proceedings
    such as settlement negotiations, hearings, and trials.

3.  Training Completion:  If the inspector is not y»l if ttij  for an exception,
then establish a target date in column 4 for training to be  **«T1'«irt.  After the
training is finished, then record tha actual date it was ~-r**»~*   .
    The Office of Water Btfbrcemant and Barnits strongly believes that all
        cs should receive the Agency Course,  •Fundamentals of QTvircnmental
Camfilianoe Inspections," although experienced inspectors may seek an Tff-trtifn to
thifli
1*  AjB]JfiBJ2iliSXL_JXbs applicable training «*"p""«*»» on the duties of
tor;  ens or both health and safety orders nay apply,  under Oft 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 wall as training required under 1440.3 depend oh tha types of
hazards the innpartnr may routinely encounter.   Consult Regional guidance or
orders on health and safety to determine which levels  apply  and nark the work
sheet accordingly.

2.  Prmviaum Training saf»«f^mi ffr* a^j*•••*••.  in order to answer yes, in
coluon 3, consult Regional guidance or the Regional Health and Safety Officer
cononrning courses or experience that satisfy the requirements*  If no, then
conpiLets column 4.               '

    ISA-approved courses include:

a.  ..nvironmantal Health -and Safety Division (BSD) Developed
      Associates, Inc.) - a 22-ocdule slide/tape prcgran
iii.  ffnajg fiftfllth f*^ Safety Tralninqr for field Aetivitii
      (Available FY 89)

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     SHEET f 1 • 1NSTBDCHQJS
    Office of Eiaaiusiuy and Mondial
       '  (Course 1165.2)

       Upon request,  EH5D will review mni«i  Inlly available Health and Safety
         	_       than  - the reqjuireasntJ of 1440.2 and/or 1440.3 are oat.
gjitArt  BED in EFA nenrV   rters or Regional Health and Safety Hungers*

x.3.a to A.3.e.  NFCES Piuyiaa Minion Training


has had  prior eaqparience or training related to NFCES inspections in accerdanoi
with the following sections A. 3. a, A.3.b or A.3.C, please circle the "yes."
The "no" response win noroaUy be circled for new staff. If "no" is indicated
under the  "previous training satisfies requirement" section, training coapletir
target dates oust be  eiftnh11^hen'»   All new inspectors are expected to ccopl'
the NFCES Miniaa Training

A.3.a  METES MtninjaJT"**"**^ *V saif gtn*^y (A.3.a training only) -
individuals who within the past two years have beceoe *"•"<•»• with the material
in the NFCES  Compliance  Inspection Manual (and Draft Self Study Guide as an
option), the  Flow Tamil nanenl  Manual and the dean fitter Act and the regulations
tHlJOsjCsft. ^Bss^Lf^  ^t^33tXwm ^21^t^BsBnB^^bV^^BuB90BOCD £Qfl9Q^^U1HB COP tR^DtO^Wl^tCO^^F sY9fl9al9*isBl4^3A • ^^ V^^sa^
^•••M^^^^^V* I^^BIB*^  ^v^pvee^^ f ^MMe^BM^vv^wBBs/ ^^v^Bv^HMflB^^ ^ienej^ei^^viv^p ^ne» ^^i^B^^ee* w^ee^^e> j ^•MBjPVie>AtvBieH^p AeiA vevsas
NFCES progran..    *                        .

A*3«b  NPCES  MJUJB^B ^^BJnJHp tur OH ^fae_JHb^pjjj]ljcf£Qjri (A*3.b training only)
For these experienced  individuals who within the last two years, have FTt-
fully led or  independently conducted NFCES inspections, or have been designated
work groups fcr developing training
                                           als, henmae of their extensive
          individuals will .by their career circumstances have already had the
equivalent of a fornal GOT ptuuxaia, and win have knowledge of how to prepare for
inspect ions, how to use nunan relations skills during inspections, how to sample,
review recmOa  and prepare reports. For supervisors a minlimim of two years of
supervising eaqperienoed NFCES inspectors and including i-eiiprmlhilit'les such as
reviewing inspection  reports.  New or experienced supervisors would be
to have observed or Mststed on at least two NFCES inspections, though not
necessarily to  have conducted independently

A.3.C
                                                      (A.3.C training only) - F
                             	
those individuals who within the last two years, have succassfuny led or
           Ly conducted or supervised NFCES inspections and have

-------
                                  - 7 -
wane SHEET ft- UBTRDCTICNS
^— m
Of
wotic gra^» far davvloping training nttrials,
eixp«ri«io«. (Self study would te apprcpriat* if no
of find within rmaacnabl* tnwl distano* within
•ntry date.)
                                    actively Mtwd on
                                of thtir «ctengiv«
Training for NFCES

visor require this
        oay also include rawdial
            , ch«i«try, biology, etc.
        this training will not-b« aubj«ct to tte
                                                              training in
training, tte "training nrrpletion target date"
qua»tioi on pnvicus
listed.
      flalum •
actual f*™^ •+****
work
                       than is a target date entered, tte
  should be entered when tte targeted training is

  Ihe first line supervisor should review and approve the

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FORM A - EXCEPTIONS

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NQEK SHEET t 1 -PQFM A
      PGRf A - IdJUEbT FOR OCBFTICN DNCBl ISA ORXR 3500.1
       BffUDUEE NAME

Nav [  ]    Exp«ri«no«d
C  1
for
 that satisfiM
                            This
                            th» following
Inii
                                                     of EPA cedar 3500.1
TRAINING
                     SSS QTT
                                        r^rffytrri^BJ
          Signature/ Data
                                         Sn>«rvi«ar Signatun/ Dote
Approving Official/

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                                     -1 -
  HOIK SHEET * 1 - POEM A
                                    FORK A
                                                        3500.1
line
categor
       ies of
 approval  of an
 other
   of this  form is to document that tha
is both eligible  (as  defined by  EPA Order'
    and "experienced*  inspectors)
    ion.  ttiis  form may be
                                                                        first-
                                                                       for the
             Ttation,  such
                                                               3500.1
                                                    and 7«1 Iflart to
                             	   .	alone or in conjunction with
~w_        .,._., _ — certificates of completed training,  depending en
tha level of detail  required by the approving official.   Refer to the
,A_ .» •	 ^K	»_ J	*	^ _ * t 	 ^ _ ^ ^^^h& ,•_ 	•   A._A
     for
 experien
         the  principles  to  follow  in  assessing previous  training  and/or
              A sample form has been nrmiletarl  for an •experienced11 inspector
            t-K« WUA BWMVMB 4*« ~ —* — ~~~
            uM H3Uk CXOBZam JUI
                                       as follows.  1.
                                       2. Qiaclc wbatha
                                   thzaa  major       ,
                               and program  asslgnBant.
                                                                           tha
 individual  is new or experienced,  as dafinad by EEA Order 3500.1; also, check
 whether tha individual is an inspactor or a supervisor. 3. Onder Duties:  For
 the  inspector, briefly  state the types  of compliance inspections.   Far the
 supervisor,  indicate what inspect inn ptojiame and/or case develapaent work s/he
                       Under this column heading, list tha appi
requirements  for which the  individual  is  seeking an «»•*•<
                                                                    A training
                                                                 iieiuiing the
Basic  Curriculum,  Health and Safety Training under 1440.2 and/or 1440.3, and
               f* vHn^ntun Training.
                     Under this coluan heading, check the typa(s) of training,
supervised  self-study,  on1 the job training and/or rlaiaea  that satisfies
erienoa is the basis for the
              Under this colum heading, briefly
and/or  expeiisnga that  is the  basis for  tha
                                    under this column heading, if previous


                                                         the previous training
needed, attach a separaaaate separata written  statenant,  signed by the  first
eaanple,  if  rmrjamhle claserocn  training was  offered through  the Region,
class.  Also,
received
A.3.a  FSB.
                      a copy of the certificate of oospletion if the  inspec
                                   Dates and circu
gained  familiarity with  the eelf study
A.3.a, Work Sheet f 1, page 5).
                                                           where the insp
                                                    cited  abeve  (i
                                                           ion and
                                                          tor
when the inspector has been assigned to coach or train other inspectors in the
inspection planning, en-site and follow-up techniques for an NECES Inspections.
Describe field work  involved and  indicate type  and number of inspections (CEX,
CS3,  or  RZ where  applicable),  and  whether  they  involve   municipal  or
ncrmunicipal facilities. How long has the employee been conducting inspecti<

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                                          . 2 -




WB* SHEET I 1 -ZQIMA




A.3.C
data>
ia oa
training*   Tnis  intonation flay ba oontainad  on an at£acted oopy  of tna
           bl« to tte mttoducticn  to
 VI.  smpanaa   BKh fen abould te •ignad fey tte inapactur or first-lim
 stoMcvisor, tte aqparvisor »*o is nooananding tte vaqoaat te approved, and by
 tte approving official, in aojoulanoa with preoadurw «at«h11aharl within tte
-\
 )

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WORK SHEET f 2

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                       WORK SHEET #2
   T^xu-ff	OH NPDES INSPECTOR TRAINING - WORKSHEET FOR SKILLS
^EXPANSION/SPECIALIZED TRAINING FOR NPDES/PRETREATMENT INSPECTIONS
    Eaployee Nas*                        Organization

       (See Pag* 3 for explanations and instructions.)

». SCOPE  OF SKILLS EXPANSION/SPECIALIZED  TRAINING PROGRAM: This
training  prograa  will assure that  inspector is able  to. lead or
independently conduct the following types of inspections:

 - Toxic Sampling Inspection (XSI)
 - BioBonitoring Cospliance Inspections  (CBI)
 - PretreatBent Compliance Inspection (PCI)
 - Performance Audit Inspections  (PAI) "  '
 - Diagnostic Inspections (OI)
 - Other  (Offshore drilling rig
    CEIs  (O-CEI) ;PCI— for IU's,etc.)
                                            TRAINING
                                        TARGET     ACTUAL
                                      COMPLETION   COMPLETION
11.1  Self Study                          DATE        DATE

   Using the NPDES Cospliance
   Inspection Manual (1988) , with self
   study guide, in depth study
   of appropriate chapters. May also
   study the Act regulations and
   pertinent current guidelines.
              l)   XSI

              2)   CBI

              3)   PCX

              4)   PAI

              5)   DI

              6)   Other (As CEI-
                   drilling rig;etc.)

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                            - 2 -
           1 9 Confe.
                                           COMPLETION  ACTUAL
                                            TARGET    COUPLET]
                                             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
              1)    ZSZ

              2)

              3)

              4)    PAX

              5)    OZ

              6)    Other (CEX-drill
                    rig; PCX-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 OWBP contract or Regional
   in-house effort.)
                                     (PCI)  _
                                   (Pd-IU)

   B.3.b  Diagnostic Cospliance Inspection
   Workshop - basic skills or sore
   advanced *K1llf coverage, through
   the OWBP 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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                           . • .  - 3 -

WORK SHEET  I 2  -  ZNS1KDCTZOM8

B.     The skills expansion and specialized training is generally
provided  after  completion of  the  NPDES Minima Training  for
inspectors.    However when  scheduling  of workshops  and  other
training experiences  are  constrained by availability and budget,
SOBS portions  of the workshops,  OJT, and self study Bay need to
be scheduled simultaneously with the NPDES »**!«« 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 saapling
inspections may be postponed  until  such  tiae  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.l    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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     GOXDBLXHES  OH NPDES INSPECTOR TRAINING .- SUMMARY  of WORK
  SHEETS   (OPTIONAL)  ON EMPLOYEE'S  NPDES  INSPECTOR  TRAINING
Ellployee
Organization _ '            New  [  ]  Experienced [  ]
EXPERIENCE  -  Inspections conducted in  the previous fiscal year.
List inspection nuabers:
      _    XSI „ _    CBI _    PAI _ _    Pd
asi __ _   si  _ _    DI  _ .   other  _
A»   MINIMUM TRAINING - Dates Completed
                      Class/ffkshop   Self Study    OJT
A. 2  Fundamentals       _____       H/A*        N/A
     Health and
       Safety   1440.2  _       H/Jk         H/A
                1440.3  _       M/A         H/A
A..3  NPOES - Prograa Miniaua
    - CEI            _ ___
    - CSI                    .
    -  RI            _
B..   SPECIALIZED TRAINING - Date Completed
  Type        Class/liksp     Self study       .OJT
  XSI          _       _      . _
  CBI              '           _____      _
  PCI                  '       _      _
  PAI          _              '        _
   DI  ,        _    .   _      _
  Other-       '               _      _
 ADDITIONAL HEALTH AND SAFETY - Date Completed
 Type Required (including       Class/Workshop
    refresher training)
 Signature of Supervisor                      Date
                             A - 1

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   XHSTRUCTXOMS — nW/ES OUAOEI^HES OH INSPECTOR

                 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  II 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 I  2.   At
the bottom of the Summary is space for health and safety training
that is to be  taken in addition  to the basic health and safety
under Section A.2.
                             A - 2

-------
                                 OF
              ZVSPICXOB nxxxzue PROGRAM DESOUPTIOV
     The  imt Training Vrograa  establishes a COM program, of
       ork,  eelf instruction and on- the- job training  (OJT)  for
those  individuals  who  carry out MPDES  compliance/enforcement
activities  for IP*.   This summry  daseribas a sequence for  nsv
inspectors,  and  for  expansion  of  axilla  latar  en.    After
coapletion  of Baaie  Training and Introductory MFDCS  training,
self -instruct ion and OJT, the inspector should be able to conduct
the coapl lance evaluation inspection and the saapling inspection.
The  goal ia  for each  new inspector to coapleta thie sequence
within six to nine months en the  job.   Job skills can than be
expanded  through aore atudy  and  instruction into araaa such a»
performance audit, pre treatment, and diagnostic inspections.

     The  figure below  shews  the plan  in  euaaary faahion.  In
order  to get a copy of the coaplete MMES Training 9roarmm
             contact:  Director,  Cnforcaaent Division,  Office of
Nster  Enforcement  and Penita,  HQ (EN-J3I),  USIPA,  401 N Street,
SW, Washington, D.C.  204«0.  FTS 475-8310.

                       MPPtS Training Men
                       General Orientation
    Courmem/Herksheps         |   '      aelf Instruct len /OJT

                                  '
Basic Inspector Curriculum       , CWA and Xegulationa
NPDES Introductory Couraewerk      Violation Recognition
  (Manuals available by 4/tt)      Saapling Techniques
                                   Kanuaia for Introduction
                                    to Coapliance Inspections
                                   Plow Naaauraaent Ha?-jal
                                   OJT* I inspections each
                                    for compliance eveluetion
                                    and compliance sampling
                                    inspections

                         tkills
P:retrestaant Znapection            Pretrestaent Guidance
 liorkaHop                          Pretreatmant Coapliance
                                    Inspection and Audit Manual
Diagnostic Inspection              Inspect or »e Guide for tvalu-
 werkshop                           ating Nunieipal Waatewstsr
               .                     Treatment Planta
                            A - 3

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Toxic* sampling                    OJT-siomonitoring,  toxics
                                    sampling and pretreataent
                                    Inspections
(To be developed)

                                   Utilla
Of f shore Drilling Rig Inspections
 (to bo developed)
Criainal Investigations (71XTC, Clynce,  OA)
                       1MB
          following materials  for tho  aov  inspector should b«
          from tho inspoetor** first-lino ouporvioor or tho
oddrooooo footnotod bolov.                         .
    Orgsnisstion chart
    eiosn vstor Act ond rogulotions
    NPO£5 Znspoctioa Strstogioo ond Guidsneo ouch oo tho Closn
    wstor Act CoBplioneo/Enforcoaont CoapondiuB
    Soaplo M90CS inspection reports
    Description of MQ/Jtogionol/Ststo relationships
    HPOES Ceaplianco Inspection Manual

O Tn trodue^ ion to MMga Tn«paetion« fAvailabla 4/SS1
  - NPOES coaplianco Monitoring Inspector Training Modules *
    ••  Overview (draft)
    —  Legal Issues (draft)
    —  sampling (draft)
    ••  Laboratory Analysis (under development)
    —  Biomonitoring (under development)
  • Field Manuals for Solf Instruction and OJT    HTIS       IRC2
    —  MFOtS Compliance Inspection Manual    PM3ll3it7     o
-------
II.B. 14.      "Revision to Inspection Coverage and Frequency Criteria of Clean Water
             Act Permittees", September 11, 1995.
-------
                 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                              WASHINGTON, D.C. 20460
                                      SEP | | igou

                                                                          OFFICEOF
                .                                                       ENFORCEMENT AND
                                                                     COMPLIANCE ASSURANCE
 MEMORANDUM
    •                             .                                         •

 SUBJECT:    Revision to Inspection Coverage and Frequency Criteria of Clean Water Act
              Permittees
FROM:       Elaine Stanley,
              Office of Compliance

              Robert Van Heuvelen, Director
              Office of Regulatory Enforcement
                      \ '
TO:          Deputy Regional Administrators, Regions I-X
              Regional .Counsel, Regions I-X                .  •.   .

       This memorandum revises and supersedes EPA's April 1985 "NPDES Inspection
Strategy and Guidance for Preparing Annual State/EPA Compliance Inspection Plans," which
specifics the coverage and frequency permitted sources should be inspected under the Clean
Water Act. This modification conforms to and implements that part of the President's March
16, 1995,  report on "Reinventing Environmental Regulation" pertaining to inspection
coverage.  The report outlined 25 high priority actions to improve the existing regulatory
system and to create a better environmental management system for the future, one of which
is  "Risk-based Enforcement." The underlying principle of "risk-based" enforcement is that
EPA enforcement actions  should be guided by the significance of the environmental and
health risks presented; in particular, the report instructs the Agency to reduce the inspections
of low-risk wastewater dischargers with outstanding compliance records.

       EPA's goal t
-------
       Effective immediately, EPA's policy is that major sources shall be inspected by a
 combination of Regional and State efforts as often as necessary to ensure adequate protection
 of human health and the environment, which may be less frequently than inspecting each
 facility on an annual basis.  The flexibility provided by this policy is intended to allow the
 Agency and States to shift commitments of inspection resources from, for example, lower
 risk, majors to higher risk minors, or to allow for more focused inspection efforts on problem
 facilities or  in areas where the effects of discharges from one or more major or minor
 sources create higher risks to surrounding communities, ecosystems, and sensitive
 populations.

       In determining both the frequency of inspections and the permittees to be inspected,
 factors to be considered include the likelihood of noncompliance by the permittee (taking into
 account the compliance history of the permittee); the type of facility and the pollutants and
 contaminants at issue (and concomitant risks to be posed);  other factors as appropriate to
 allow for a focused inspection effort on problem facilities or areas; and to target those
 problems which present the most serious threats ta human health and the environment.

       i  ^adquarters will discuss with the Regions their inspection strategy as we work
 together i target inspection'priorities. EPA Regional inspection commitments will continue
 to be regelated with EPA Headquarters through the memorandum of agreement ("MOA")
process.
              •
       Regions should provide a copy of this memo to State Water Management Directors
and ' .are this memo with other appropriate Regional management and staff.  Please contact
 T   ,d  Lyons in the Office of Compliance (202-564-2405) or Kathzyn Smith in the Office of
...gulatory Enforcement (202-564-3252) if you have any questions.

cc:    Michael B. Cook (OWM)
       Jay Benforado (Reinvention Team)
       Ellen Brown (Reinvention Team)
       Brian Maas (ORE)
       Fred  Stiehl (OC)
       John  Rasnic (OC)
       Regional Wafer Enforcement Branch Chiefs
-------
II. C.
-------
II. NPDES PROGRAM;  PRE-ENFORCEMENT




    C. MEASURING COMPLIANCE/DATA PROCESSING
-------
                                                                     II.C.l
Permit Compliance System (PCS) Data entry (updated 12/14/93); Inquiry Users Guide (updated
5/5/97); PCS Generalize Retrieval Manual (updated 4/23/96); Edit/Update Error Messages
(updated 3/20/97).
-------
     Permit Compliance System
Data Entry, Edit, and Update Manual
       Document Number PCS-EU97-1.01


              March 20, 1997
            PCS USER SUPPORT
               202/564-7277
         U.S. EPA - PCS User Support
             Mail .Code - 2222A
             401 M Street, SW
           Washington, DC  20460
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Revision Code Description

The following table gives a description of the revision code used with each revision of the PCS Data Emn,
Edit, and Update Manual.
REVISION
CODE
1 ,.
DATE
03/20/97
DOCUMENT
NUMBER
PCS-EU97-1.01
DESCRIPTION
SNC definition has been changed to include non-
monthly average limits.
Table  0-1.  Revision Summarv
                                                               Revision Code Description  V
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Contents


Chapiter 1.  NPDES Overview	  1-1
1.1 PCS Overview  	s	  1-1
1.2 Overview of PCS Functional Capabilities   	  1-1
1.3 Input Processing  	  1-2
   1.3.1  PCS Data Entry	'	<	  1-3
   1.3.2  Edit Processing	  1-3
   1.3.3  Update Processing	  1-4

Chapiter 2.   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	2-4
2.3 PCS Transactions	2-8

Chapter 3.  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
   3.1.2  Input	  3-7
   3.1.3  Transaction Codes  	  3-8
   3.1.4  Key Data Elements   	  3-9
   3.1.5  Edit Checking	3-9
   3.1.6  Error Messages   .'....'	  3-9
   3.1.7  Special Accept Options  	'.	  3-9
   3.1.8  Automatic 'CHANGE' Option  	   3-10
 •  3.1.9  Security  	   3-10
   3.1.10  Batch ID Number	   3-10
3.2 Data Entry Screens	   3-11
   3.2.1  Main Menu Screen  	   3-13
   3.2.2  Facility Data Screen #1 (FAC1)   	   3-20
   3.2.3  Facility Data Screen #2 (FAC2)   	   3-23
   3.2.4  Permit Facility Geographic Data Screen (FAGD)  	   3-25
   3.2.5  Sludge Facility Data Screen (SLPF)	   3-27
   3.2.6  Facility Address Screen (FACA)   	   3-29
   3.2.7  Owner/Operator Address Screen (FACO)	   3-31
   3.2.8  Reissuance Data Screen (RCIN)	   3-33
   3.2.9  Inspection Scheduling Screen (INSS)   	   3-35
   3.2.:10  Inspection Screen (INSP)   	   3-37
   3.2..11  Sludge Inspection Data (SLIN)	   3-39
   3.2,12  Pretreatment Compliance Inspection Screen 1 (PCI1)	   3-41
   3.2.13  Pretreatment Compliance Inspection Screen 2 (PCI2)	   3-43
   3.2.14  Pretreatment Audit Screen 1 (PAU1)   	   3-45
.   3.2.15  Pretreatment Audit Screen 2 (PAU2)   	   3-47
   3.2.16  Pretreatment Audit Screen 3 (PAU3)	   3-49
   3.2,17  Pretreatment Summary Screen (PPS1)  	   3-51
   3.2.18  Compliance Schedule Screen (CSCH)  	   3-53
   3.2.19- Compliance Schedule Violation Screen (CV1O)   	   3-55
   3.2.20  Permit Tracking Screen (PTRK)	   3-57
  3.2,21  Evidentiary Hearing Screen  (EVHR)  	   3-59
  3.2,22  Grant Screen (GRNT)  . . . : '	   3-61
  3.2.23  Outfall General Data Screen (OFLG)  	   3-63
  3.2.24  Outfall Treatment Type/Comment Screen (OFLT)   	   3-66


                                                                                  Contents  VU
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   3.2.25 Sludge Outfall Data Screen (SLPS)  	  3-68
   3.2.26 Outfall Geographic Data Screen (OFGD)  	  3-70
   3.2.27 Limits Screen (LIMS)   	  3-72
   3.2.28 Limit Modification Screen (LIMM)   	  3-74
   3.2.29 Season Split Screen (SEAN)	  3-76
   3.2.30 Effluent DMR Data (EDMR)	  3-78
   3.2.31 Effluent Measurement Screens (EV1O)	  3-81
   3.2.32 Enforcement Action Screen (ENAC)  .	: .  . .  .  3-85
   3.2.33 Enforcement Action Key Screen (EAKS)	  3-87
   3.2.34 Administrative Penalty Order Screen (EAP1)  .  ,	  3-97
   3.2.35 Administrative Penalty Order Screen (EAP2)  	  3-99
   3.2.36 Single Event Violations Screen (SVIO)   	   3-101
   3.2.37 PCS Table Modification Screen (TABS)	   3-103
   3.2.38 System Error Screen	'. .   3-108
   3.2.39 Exiting from a PCS-ADE Session	   3-108

Chapter4.  PCS PC-ENTRY MICROCOMPUTER DATA ENTRY                               4-1
4.1   PCS PC-ENTRY General Topics	! ...  4-1
   4.1.1  System Description   .'....:	4-1
   4.1.2  Data Entry Screens	4-2
   4.1.3  Transaction Codes  	:	4-2
   4.1.4  Key Data Elements   	'	4-2
   4.1.5  Edit Checking	4-2
   4.1.6  Edit Error Messages  	4-2
   4.1.7  Batch Header Card/Security Id	4-3
   4.1.8  Transaction Files   	...'..  4-3
   4.1.9  System Error Messages	4-3
4.2 Equipment Description for PCS PC-ENTRY   	4-4
   4.2.1  Microcomputer Requirements	4-4
   4.2.2  Computer Communications Requirements  	4-4
   4.2.3  Keyboard Description  	4-5
   4.2.4  Keys with Special Functions  	4-6
4.3 Installing PCS PC-ENTRY on a Microcomputer	4-7
   4.3.1  How to Get a Copy of the PCS PC-ENTRY System	,	4-7
   4.3.2  System File Description	4-8
   4.3.3  Hcirddisk System Installation  	4-8
   4.3.4  Floppy System Installation  	4-9
   4.3.5  Special Note on Installing New Releases   	:	4-9
   4.3.6  Entering Data using PCS PC-ENTRY	4-9
   4.3.7  General Screen Features	  4-10
   4.3.8  Getting Started	  4-10
   4.3.9  Description of Information On System Screens	  4-11
   4.3.10 Introduction Screen and Parm File  	  4-12
   4.3.11 MAIN FUNCTION  MENU (MAIN)    . .	  4-13
   4.3.12 Etescription of Data Entry Screens   	  4-32
   4.3.13 Files Created During Data Entry  .	   4-104
4.4 Uploading Data to the Mainframe at NCC   	   4-106
   4.4.1  Basic Requirements for Uploading Data   	   4-107
   4.4.2  Description of Communications Software Available for Uploading Data  . .  .•	   4-107

Chapter 5. BATCH DATA ENTRY	  5-1
5.1 Transaction Codes	  5-1
5.2 Key Data Elements	  5-2
5.3 Batch Card Formats	  5-5
   5.3.1  Header Card   	  5-6

VJii   Permit Compliance System:   Data Entry, Edit, and Update Manual
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   5.3.2  Original Card Formats	'5-8
   5.3.3  Extended Card Formats	  5-23

 Chapter 6. CODING CONSIDERATIONS   . .  . .	  6-1
 6.1  Transaction Codes	  6-1
   6.1.1  NEW Transaction (N)  	-.  . .'	6-1
   6.1.2  CHANGE Transaction (C)	  6-2
   6.1.3  DELETE Transaction (D)   	6-3
   6.1.4  MASS DELETE Transaction (X)	6-3
   6.1.5  REPLACE Transaction (R)	6-3
 6.2  Coding Considerations by Data Type	6-4
   6.2.1  Permit Facility Data Type	6-4
   6.2.2  Inspection Data Type	  6-15
   6.2.3  Inspection Scheduling Data Type	  6-17
   6.2.4  PCI/Audit Data Type	  6-18
   6.2.5  Pretreatment Performance Summary Data Type  	  6-19
   6.2.6  Compliance Schedule Data Type	  6-21
   6.2.7  Compliance Violation Data Type	  6-26
   6.2.8  Permit Events Data Type   	  6-27
   6.2.9  Evidentiary Hearing Information  	  6-28
   6.2.10  Pipe Schedule Data Type   	  6-28
   6.2.11  Parameter Limits Data Type   	;	  6-37
   6.2.12  Measurement Violation Data Type	  6-46
   6.2.13  Enforcement Action Data Type  	  6-54
   6.2.14  Enforcement Action Violation Key Data Type  	  6-55
   6.2.15  Administrative Penalty Order Data Type	  6-57
   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	  6-59
   6.21.3  Reissuance Control Indicator	  6-60
   6.3.4  Reissuance Coding Rules and Automatic  Processing   	  6-62
 6.4 Archival Processing  	  6-64
 6.5 User Data Elements	  6-64

 Chapter 7. PCS EDIT/UPDATE PROCESSING   	  7-1
 7.1  Pre-Edit Conversion Processing	  7-1
   7.1.1  Permit Facility Data Conversion Processing	 .	7-1
   7.1.2  Permit Event Data Conversion Processing   	  7-2
   7.1.3  Pipe Schedule Data Conversion Processing   	7-2
   7.1.4  Parameter I .units Data Conversion Processing  	<	  7-2
   7.1.5  Measurement/Violation Data Conversion Processing   	  7-3
  7.1.6  Compliance Schedule Data Conversion Processing   	7-3
  7.1.7  Compliance Schedule Violation Data Conversion Processing	7-4
  7.1.8  Inspection Data Conversion Processing	7-4
  7.1.9 Enforcement Action Data Conversion Processing   	  7-4
7.2  PCS Edit Processing   	7-5
  7.2.1 Edit Audit Report - Rejected Transactions		7-7
  7.2.2 Edit Audit Report - Accepted Transactions   	7-8
  7.2.3 Edit Audit Summary Report	  7-10
  7.2.4 Use of the Edit Audit Report  	  7-11
7.3  PCS Update Processing	  7-11
  7.3.1 Update Processing Input/Output   	  7-12
  7.3.2 Update Audit Report - Rejected/Accepted Transactions   	  7-13
  7.3.3 Violations Recognition Report   .  . .	  7-15

                                                                                      Contents   LX
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   7.3.4 Administrative Deficiency Report   .  . .	   7-17

Chapter 8. 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	  8-2
8.3 Effluent Measurement Violation Tracking   	  8-3
8.4  QNCR Reportable Noncompliance (RNC) Identification   .	  8-5
   8.4.1  RNC Data Elements - Input Considerations   	  8-5
   8.4.2 PCS Production Runs that Detect/Resolve RNC	  8-6
   8.4.3  Single Event Violations Independently Determined by The Agency  	  8-7
   8.4.4 Automatic Detection/Resolution of RNC for Violations   	  8-7
   8.4.5  Technical Review Criteria (TRC) Scenarios '	   8-14
   8.4.6 System Detection/Resolution of RNC By Enforcement Actions	   8-17
   8.4.7  Manual Setting of RNC	   8-21
   8.4.8  RNC Data Elements - Retrieval Condiderations	   8-21
   8.4.9  RNC Detection and Resolution Dates	   8-24
   8.4.10 QNCR Facility Status    . . .	:	   8-25
   8.4.11  RNC Coding Considerations	   8-28

Chapter 9. Using TSO With PCS	  9-1
9.1 Activating Special PCS./TSO Comands  	  9-1
   9.1.1  New Users (NEWUSER) .	  9-1
   9.1.2  STORET Users	  9-2
9.2 ISPF PCS Menu	9-2
9.3 Summary of PCS/TSO  READY Prompt Commands   	  9-4
   9.3.1  Online HELP available on PCS/TSO  Commands	  9-5
9.4 Editing PCS Data Using the PCS/TSO Command (PCSEDIT)   	  9-6

Chapter 10.  USING RANGE CHECKING IN PCS   	'......   10-1
10.1  OVERVIEW OF RANGE CHECKING   	   10-1
10.2  Range: Checking with PCS-ADE	   10-1
   10.2.1  Range Checking Enabling Combinations	   1Q-1
10.3  Effluent DMR Data Key Screen (EDMR)	   10-2
10.4  Effluent DMR Data Screen (EDMR)   	   10-2
10.5  Effluent Measurement  Key Screen (EVIO)	   10-3
10.6  Effluent Measurement  Screen 2 (EVIO)   	   10-4
10.7  Range Checking with Batch Edit    . .  .  .'	   10-5
   10.7.1  Submitting a Batch with JCL (Job Control Language)   	   10-5
   10.7.2  Range Checking Using PCSEDIT	   10-6
10.8  Quality Assurance (QA) of Existing Measurement Data in PCS   	   10-7
10.9  Range Checking Table Reports    	   10-7
   10.9.1  How to Request Table Reports  	   10-7
   10.9.2  Using JCL to Create Table Listings   	  10-9
10.10 Range Checking Table Maintenance   	   10-10
10.11  Uses of Range Checking Tables	   10-10
   10.11.1  Accessing Table Maintenance  	   10-11
   10.11.2  Range Checking Main Menu	•	   10-11

Appendix A.  Introduction to the NPDES Permit Issuance for PCS  Users   	   A-l

Appendix B. Telephone Numbers	B-l

Appendix C.  Full-Screen Key Conversion for VT-100 Terminals  	   C-l
C.I TYMNET Full-Screen  Key Conversion for VT-100 Terminals (EPAC.MT)  .  .	   C-l

X   Permit Compliance System: • Data Entry. Edit, and Update Manual
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 C.2  NCC Full-Screen Key Conversion for VT-100 Terminals (NCC Data Switch) 	  C-3

 Appendix D. Quarterly Noncompliance Report, Category Noncompliance  	  D-l
 D.I  QNCR Category1 Noncompliance	  D-l
 D.2  QNCR Category II	  D-l

 Appendix E. PCS PC Software available online at NCC  	E-l

 Appendix F.  Using KERMTT 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-l
   F.2.1  Harddisk System		•	F-l
   F.2..2  Floppy System	F-3
   F.2.3  KERMIT Command Summary	F-5
   F.2.4  Submitting PCS Edits on the Mainframe	F-5

 Appendix G. Using CROSSTALK to Upload/Download Files  	  G-l

 Appendix H. Using ARBITER to access PCS PC SOFTWARE  	: .	  H-l

 Appendix!. Using SEND/RECEIVE to Upload/Download Files  .	  1-1
 I.I Instructions for downloading the PCS PC Software with RECEIVE Cmd    . .	  1-1

 Appendix J. Using COMPRESSED PC Software files (PKARC)  	 J-l

Appendix K.  PCS User Docmentation Comment Form  	  K-1

Index	•	  X-l
                                                                               Contents  XI
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Figures
  1-1.   Input Processing  .............................................   1-2
  2-1.   PCS Data Structure   .......... ,  ................................   2-2
  3-1.   NCC Signon Screen (Initial Menu)   ............. ......... ............   3-2
  3-2.   NCC Signon Screen (Option Menu)   .................................   3-2
  3-3.   NCC Signon Screen (CICS Signon)  . .  .......... ......................   3-3
  3-4.   NCC Signon Screen (entering parameters for your userid)  .....................   3-4
 x 3-5.   TYMNET Signon Screen (terminal types)  ...............................   3-5
  3-6.   TYMNET Signon Screen (terminal types)  ..............  . ...............   3-6
  3-7.   NCC Signon Screen (Initial Menu)   ................... ...............   3-7
  3-8.   PCS-ADE Sign-On Screen   ................................... ...  3-11
  3-9.   PCS-ADE Data Entry Subsystem Main Menu   ... ........................ 3-13
 3-10.   PCS-ADE Data Entry Subsystem Facility Menu   .........................  3-14
 3-11.   PCS-ADE Data Entry Subsystem Effluent Menu  .........................  3-15
 3-12.   PCS-ADE Data Entry Subsystem Enforcement Action Menu  ...................  3-16
 3-13.   PCS-ADE Data Entry Subsystems Inspections Menu  . . ....................  3-17
 3-14.   PCS-ADE Data Entry Subsystems Compliance Schedule Menu   ................  3-18
 3-15.   PCS-ADE Data Entry Subsystems Tables Menu   .........................  3-18
 3-16.   PCS-ADE Data Entry Subsystems Other Menu   ... .......... .............  3-19
 3-17.,   Facility Data Screen #1 (FAC1)   ............ .......................  3-20
 3-18.   Facility Data Screen #2 (FAC2)   ........................ .  ..........  3-23
 3-19.   Permit Facility Geographic Data (FAGD)  .  . .  ................  ..........  3-25
 3-20.   Sludge Facility Data Screen (SLPF)   ................ .... .............  3-27
 3-21.   Facility Address Screen (FACA)   ............................. ......  3-29
 3-22.   Facility Owner/Operator Address Screen (FACO)    ........................  3-31
 3-23.   Reissuance Data Screen (RCIN)   .......  ............................  3-33
 3-24.   Inspection Scheduling Screen (INSS)   ................................  3-35
 3-25.   Inspections Screen (INSP)    . . :  ...................................  3-37
 3-26.   Sludge Inspection Data Screen (SLIN)  .................. .............  3-39
 3-27.   Pretreatment Compliance Inspection Screen 1  (PCI1)  ......................  3-41
 3-28.   Pretreatment Compliance Inspection Screen 2 (PCI2)  .............. ........  3-43
 3-29.   Pretreatment Audit Screen  1 (PAU1)   . .- ..............................  3-45
 3-30.   Pretreatment Audit Screen 2 (PAU2)   ................................  3-47
 3-31.   Pretreatment Audit Screen 3 (PAU3)   .................................  3-49
 3-32.   Pretreatment Summary Screen (PPS1)  ...............................  3-51
 3-33.   Compliance Schedule Screen (CSCH)  ............... ..................  3-53
 3-34.   Compliance Schedule Violation Screen (CV1O)   ...........................  3-55
 3-35.   Permit Tracking Screen (PTRK)    .  . . ............................ . . .  .  3-57
 3-36.   Evidentiary Hearing Screen (EVHR)   . .  . .............................  3-59
 3-37.   Grant Screen (GRNT)  ...... ......................... .........  3-61
 3-38.   Outfall General Data  Screen (OFLG)  ......  .................... ......  3-63
 3-39.   Outfall Treatment Type/Comment Screen (OFLT)   ...................  .....  3-66
 3-40.   Sludge Outfall Data Screen (SLPS)   ................................  :  3-68
 3-41.   Outfall Geographic Data Screen (OFGD)   .............................  3-70
 3-42.   Limits Screen (LIMS)  ...................................... ...  3-72
 3-43.   Limit  Modification Screen (LIMM)   ............................... ..  .  3-74
 3-44.  Season Split Screen (SEAN)   .....................................  3-76
 3-45.  Effluent DMR Data Key Screen (EDMR)  .............................  3-78
 3-46.  Effluent DMR Data Screen (EDMR)  .................. . .............  3-79
 3-47.  Effluent Measurement Key Screen (EVIO)  ................ . .............  3-81
 3-48.  Effluent Measurement Data Screen (EVIO)   ........................  ....  3-83
 3-49.  Enforcement Action Screen (ENAC)   . ...............................  3-85


                                                                                 Figures  xiii
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  3-50.   Enforcement Action Key Screen (EAKS)   ............. ................  3-87.
  3-51.   Expanded Enforcement Action Key Screen (EAKS/MV)   .............. ........  3-89
  3-52.   Expanded Enforcement Action Key Screen (EAKS/CV)  ...... ...... ...... .....  3-90
  3-53.   Expanded Enforcement Action Key Screen (EAKS/SV)   .....................  3-91
  3-54.   Enforcement Action Effluent Data Screen (EAKS)  ................ ..........  3-93
  3-55.   Enforcement Action Compliance Schedule Data Screen (EAKS)   ....... .....  ....  3-94
  3-56.   Enforcement Action Single Event Violation Data Screen (EAKS)   ...............  3-95
  3-57.   Administrative Penalty Order Screen (EAP1)   ...............  ............  3-97
  3-58.   Administrative Penalty Order Screen (EAP2)   .......................... .  3-99
  3-59.   Single Event Violation Screen (SVIO)    ........... .  . .................   3-101
  3-60.   Table Selection Menu (TABS)  ........  ...........................   3-103
  3-61.   Compliance Schedule Table Entry Screen  ......  ......................   3-104
  3-62.   Peirmit Event Table Entry Screen  . .............  .................. : .   3-104
  3-63.   Evidentiary Hearing Table Entry Screen   . ............................   3-105
  3-64.   Single Event Table Entry Screen  ............. .....................   3-105
  3-65.   Facility Lat/Long Description Codes Screen  ..... .......................   3-106
  3-66.   Pipe  Lat/Long Description Codes Screen  ..... ........................   3-106
  3-67.   System Error Screen  ................. ........................   3-108
  4-1.   Introduction to Screen (INTRO)  ........ '. .........................   4-12
  4-2.   Main Function Menu  ....................................... ...   4-13
  4-3.   GENERAL INFORMATION Function (H)   ................ . ..........   4-14
  4-4.   'SYSTEM SETUP Function (S)  ................. ..................   4-15
  4-5.   DATA ENTRY  Function (E)   . ...................... .............   4-17
  4-6.   MAIN MENU (PANEMAIN)   ............................. . .....   4-19
  4-7.   FACILITY Sub-Menu   . . . .  ....... ........................ ......   4-20
  4-8.   EFFLUENT Sub-Menu   ............... ........................   4-21
  4-9.   ENFORCEMENT ACTION Sub-Menu   .............................   4-22
  4-10.   INSPECTIONS Sub-Menu   ............  ..........................   4-23
  4-11.   COMPLIANCE  SCHEDULE Sub-Menu  ...............  ..............   4-24
  4-12.   COMPLIANCE  SCHEDULE Sub-Menu  ......... . ...................   4-25
  4-13.   SUMMARY (E.QUIT)   .................... ........ .  . : .........   4-26
  4-14.   FILE UTILITY  Function (U)  ...... ..............................   4-27
  4-15.   DIRECTORY (U.D)  ....................................... . .   4-28
  4-16.   CONVERT (U.C) ..................... ......  .................   4-29
  4-17.-  ERASE (U.E.)   . . : ....... ': ..................................   4-30
  4-18.   SYSTEM TERMINATION (Q)   . ......... .........................   4-31
  4-19.   Facility Data Screen  1 (E.FAC1)   .............. ..... ,  .......... ....   4-33
  4-20.   Facility Data Screen 2 (E.FAC2)   ...:....  ...... ......... .  ......... . .   4-35
  4-21.   Sludge Facility Data Screen (E.SLPF)   . . .  . .........  . ................ .   4-37
  4-22.   Facility Geographic Data Screen (E.FAGD)   .............  ... .............   4-39
  4-23.   Facility Address (E.FACA)  , ...... :  ..... • - •  • - ...... ...... .........   4-42
  4-24.   Facility Owner/Operator (E.FACO)   ................................. 4-44
  4-25.   Reissuance (E.RCIN)  ............ '.  ............................  4-46
  4-26.   Inspection (E.INSP)   ....... ................. ' ..................  4-48
  4-27.   Inspection Scheduling (E.INSS)   ............. ......................  .  4-50
  4-28.   Sludge Inspection Data (E.SLIN)  ............... ...................  4-52
  4-29.   Pretrmt Comp. INSP (E.PCI1)   ...................................  4-54
  4-30.   Pretrmt Comp. INSP 2 (E.PCI2)  ............. - . . . ..................  4-56
  4-31.   Pretreatment Audit 1 (E.PAU1)   ............  . ........  ..............  4-58
  4-32.   Pretreatment Audit 2 (E.PAU2)   .....  ..............................  4-60
  4-33.   Pretreatment Audit 3 (E.PAU3)   ...................................  4-62
  4-34.   Pretrmt summary (E.PPS1)    .......  ..............................  4-64
  4-35.   Compliance Schedules (E.CSCH)  ..................................  4-66
  4-36.   Compliance Schedule Viol. (E.CVIO)   ...............................  4-6S
        Permit Tracking (E.PTRK)    .....................................  4-70
XJV  Permit Compliance System:  Data Entry. Edit, and Update Manual
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  4-38.  Evidentiary Hearings (E.EVHR)  	'	  4-72
  4-39.  Grants (E.GRNT)	  .  4-74
  4-40.  Outafll Genera] Data (E.OFLG)		  4-76
  4-41.  Outfall Treat. Type/Comment (E.OFLT)   	  4-78
  4-42..  Sludge Outfall Data Screen (E.SLPS)	  4-80
  4-43..  Outfall Geographic Data Screen (E.OFGD)	'	  4-82
  4-44.  Limits (E.LIMS)	  4-85
  4-45.  Limit Modifications (E.LIMM)   	  4-87
  4-46.  Season Split (E.SEAN)  .....'	'	  4-89
  4-47.  Effluent Dmr Page (E.EDMR)   	  4-91
  4-48.  Eff. Measurement/Violations (E.EVIO)	  4-93
  4-49.  Enforcement Actions (E.ENAC)	•	  4-95
  4-50.  Enforcement Action Keys (E.EAKS)  	  4-97
  4-51.  Single Event Violations (E.SVIO)	  4-99
  4-52.  Administrative Penalty Order Screen (E.EAP1)	   4-101
  4-53.  Administrative Penalty Order (E.EAP2)	   4-103
  4-54.  Upload Summary File (.SUM) Format	   4-106
  4-55.  Basic Requirements for Upload	 .   4-107
  6-1.  Categories of Data Stored on the PCS  Data Base  	  6-2
  6-2.  Linking State-Level Control Authorties with POTWs and lUs   	  6-10
  6-3.  Linking POTW-Level Control Authorties with POTWs and lUs	  6-11
  6-4.  Pretreatment Performance Summary (Sample)	  6-20
  6-5.  Compliance Schedule Contained in an  Enforcement Action   	  6-23
  6-6.  Compliance Schedule Data Entry using PCS-ADE  	  6-24
  6-7.  Pipe Schedule Data from NPDES  Permit   	  6-29
  6-8.  Parameter Limits Data from Permit 	  6-37
  6-9.  PCS Parameter Table (by Parameter Description)	  6-39
  6-10.  Parameter I .units Data from Administrative Order 85-229  	  6-44
  7-1.  Edit Audit Report for Rejected Transactions	7-8
  7-2.  Edit Audit Report for Accepted Transactions   .	  7-9
  7-3.  Edit Audit Summary Report   	  7-11
  7-4.  Update Audit Report for Rejected Transactions	  7-13
  7-5.  Update Audit Report for Accepted Transactions   	  7-14
  7-6.  Update Audit Summary Report	  7-15
  7-7.  Violations Recognition Report	  7-16
  7-8:  Administrative Deficiency Report	  7-18
  9-1.  PCS ISPF Group Menu	  9-2
  9-2.  PCS User Support ISPF Option	9-3
  9-3.  PCS Problem Information Facility (PIF) Initial Menu	9-3
  9-4.  PCS Utilities ISPF Menu	  9-4
  9-5.  PCSEDIT Command	9-6
  10-1. .  Effluent DMR Data Key Screen (EDMR) w/Range Checking ON	  10-2
  10-2.  Effluent DMR Data Screen (EDMR)  	:  10-3
  10-3.   Effluent Measurement Key  Screen  (EVIO) w/Range Checking ON    	  10-4
  10-4.   Effluent Measurement Data Screen (EVIO)  	:	  10-5
  10-5.   Range Checking Batch JCL	  10-6
  10-6.   PCSEDIT Screen Using Range Checking .  .	  10-7
  10-7.   Index Listing of Range Tables	  10-8
 10-8.   Range Checking Full Table Listing  	'.  . .  :	  10-8
 10-9.   Range Checking Index Utility	  10-9
10-10.   Range Checking Table List Utility	   10-10
10-11.   Range Checking Main Menu Screen	   10-11
10-12.   Copy Table-to-Table Screen   . . .	   10-12
10-13.   Create a New Table Screen		   10-13
10-14.   Delete a Table Screen  	   10-13

                                                                                   Figures  XV
-------
 10-15.   Change a Table Description Screen  	   10-14
 10-16.   Add/Change/Delete a Parameter Screen   	   10-15
 10-17.   Cycle Change/Delete Parameters Screen   .	   10-15
 10-18.   Cycle Change/Delete a Parameter Screen	   10-16
  F-l.   KERMIT Data Transfer Status Screen  .  . .	F-3
XVJ   Permit Compliance System:  Data Entry. Edit, and Update Manual
-------
Tables


   0-1.  Revision Summary	'.	  v
   2-1.  Key Data Elements	 .	  2-4
   2-2.  PCS Transaction Codes	 .  2-9
   3-1.  Terminal Function Keys	  3-11
   3-2.  EAKS Data Screen Accept Options and Their Effect	  3-95
   4-1.  Basic Edit Criteria for PCS PC-ENTRY	4-2
   4-2.  System Error Messages   	4-3
   4-3.  Keyboard Description  	4-5
   4-4.  Keys with special functions  ...:...	'	4-7
   4-5. •  System File Descriptions   	4-8
   4-6.  Data Entry Processing Comparison: PCS-ADE and PC-ENTRY   .	  4-32
   4-7.  Communications Software Options	 .   4-107
   5-1.  Batch Key Data Elements	  5-2
   5-2.  Header Card	  .	  5-6
   5-3.  Batch Security Codes by State  	  5-6
   5-4. •  Card-type 1   	  5-8
   5-5.  Card-type 2	  5-9
'   5-6.  Card-type 3   	  5-9
   5-7.  Card-type C	  5-10
   5-8.  Card-type A	  5-10
   5-9.  Card-type B   	  5-11
 5-10.  Card-type E   	  5-11
 5-11.  Card-type F	  5-11
 5-12..  Card-type G   	  5-12
 5-13.  Card-type H	  5-12
 5-14.   Card-type I	  5-12
 5-15.   Card-type K   	"	  5-13
 5-16.   Card-type P  .	"	  5-13
 5-17.   Card-type Q   	  5-13
 5-18.   Card-type 6   	  5-14
 5-19.   Card-type V   	  5-14
 5-20.   Card-type 5	  5-15
 5-21.   Card-type 8	  5-15
 5-22.   Card-type 9   	'	:	•.	  5-16
 5-23.   Card-type 2	  5-17
 5-24.   Card-type J	  . •	  5-17
 5-25.   Card-type L   . .  :	  5-17
 5-26.   Card-type M	  5-18
 5-27.   Card-type R   . .'	  5-19
 5-28.   Card-type W	  5-20
 5-29.   Card-type X	  5-20
 5-30.   Card-type Y	  5-21.
 5-31.   Card-type Z	  5-22
 5-32.   Card-type '-A'	  5-23
 5-33.   Card-type '-B'	  5-24
 5-34.   Card-type '-C'  	  5-24
 5-35.   Card-type '-D'  .  ,	  5-25
 5-36.   Card-type '-E'	  5-25
 5-37.   Card-type '-F'	  5-26
 5-38.   Card-type '-G'  	  5-26
 5-39.   Card-type '-H'	  5-26


                                                                                     Tables
-------
  5-40.   Card-type '-I'   	   5-27
  5-41.   Card-type '-J'		   5-27
  5-42.   Card-type '-K'   	   5-27
  5-43.   Card-type ':T	   5-28
  5-44.   Card-type ':U'   	   5-28
  5-45.   Card-type ':?'	   5-28
  5-46.   Card-type':!'	   5-29
  5-47.   Card-type '-V	   5-29
  5-48.   Card-type '-W	   5-30
  5-49.   Card-type ':L'   	   5-30
  5-50.   Card-type ':M'   	   5-31
  5-51.   Card-type ':R'	   5-32
  5-52.   Card-type ':S'	•. .  .   5-32
  5-53.   Card-type ':A'   .  . -.	   5-32
  5-54.   Card-type ':B'	   5-33
  5-55.   Card-type ':C	   5-34
  5-56.   Card-type ':D'   	;	   5-34
  5-57.   Card-type ':£'   :	(  5-35
  5-58.   Card-type '-L'	   5-36
  5-59.   Card-type '-M'   .	   5-36
  5-60.   Card-type '-P'   	   5-37
  5-61.   Card-type '-Q.'   	   5-37
  5-62.   Card-type '-X'   .  . -	-	,	   5-38
  5-63.   Card-type '-Z'   	   5-38
  5-64.   Card-type '-Y'   	:	   5-39
  5-65.   Card-type '-!'	   5-39
  5-66.   Card-type '-2'	   5-40
  5-67.   Card-type '-3'	   5-40
  5-68.   Card-type ':5'   	   5-41
  5-69.   Card-type '-4'	'	   5-41
  5-70.   Gird-type '-5'	   5-42
  5-71.   Card-type ':3'	   5-43
  5-72.   Card-type '-6'	'	   5-43
  5-73.   Card-type '-7	   5-44
  5-74.   Card-type '-8'	   5-45
  5-75.   Card-type ':4'	   5-46
  5-76.   Qird-type :2    	:	   5-46
  5-77.   Card-type '-9'	   5-47
  5-78.   Card-type '-0'	'	   5-47
  5-79.   Card-type '-R'	 .  •.	'	'	   5-48
  5-80.   Card-type '-S'	   5-49
  5-81.   Card-type '-T   	:  . .  .  .   5-49
  5-82.   Card-type '-U'	   5-49
  5-83.   Card-type :F    	'.	   5-50
  5-84.   Card-type :G	   5-51
  5-85.   Card-type :H   .	   5-51
  5-86.   Card-type :I	   5-52
  5-87.   Cacd-type J		   5-52
  5-88.   Card-type :K   	   5-53
  5-89.   Card-type '-N'   	   5-53
  6-1.   PCS Inspection Type Groups	   6-15
  6-2.   Encoding of Initial, Interim, and Final Start and End Dates   	   6-34
  8-1.   Measurement Violation Codes	  8-4
  8-2.   Extended Compliance Schedule Codes (CSCH)	   8-17
  8-3.   RNC Detection Codes	   SO2

XVlii   Permit Compliance System:  Data Kntry. Edit, and  Update Manual
-------
  8-4.   RNC Resolution Codes	   $-24
  8-5.   RNC Detection and Resolution Dates   	•	   8-24
  8-6.   RNC Dates that are generated from RNC Codes  	'	   8-25
  8-7.   QNCR Facility Status Acronyms	   8-25
  8-8.   QNCR Facility Status Flags set by Individual Violations    	   8-26
  8-9.   Manual Entry of Facility Status Codes - Batch Format   	   8-26
8-10.   Manual Entry of Facility Status Codes - Values   	   8-27
8-11.   Coding Extended CS for Effluent Violations	   8-28
8-12.   Coding Enforcement Actions for Effuent Violations   	   8-29
8-13.   Coding Extended Compliance Schedules for CS Violations   	   8-30
8-14.   Coding Format Enforcement Actions for CS Violations   	   8-31
8-15.   Coding Extended Compliance Schedules for Non-Rec. Violations   .  .	-	   8-32
8-16.   Coding Enforcement Actions for DMR Non-Rec. Violations   	   8-33
8-17.   Coding Closing an action for Effluent Violations	   8-34
8-18.   Coding Closing of an action for Compliance  Schedule Violations  	   8-35
8-19.   Coding Closing of an action for DMR Non-Receipt Violations	   8-36
8-20.   Coding Closing of an action for Single Event Violations   	"	   8-36
8-21.   Coding Manual Detection/Resolution of Effluent Violations    	   8-37
8-22.   Coding Manual Detection/Resolution of Compliance Schedule Viol	   8-39
8-23.   Coding Manual Detection/Resolution of DMR Non-Rec. by Deletion  	   8-40
8-24.   Coding Manual Detection/Resolution of DMR Non-Rec. by Addition  	   8-41
8-25.   Coding Manual Detection/Resolution of Single Event Violations  	   8-41
8-26.   Coding 'Back Into Compliance' for Compliance  Schedule Violations	   8-43
 9-1.   Summary of PCS/TSO Commands   	 9-4
 9-2.   Summary of Online HELP on PCS/TSO Commands	 9-5
F-l.   Example of uploading PC-ENTRY file	F-6
                                                                                   Tables   XIX
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     Permit Compliance System
Data Entry, Edit, and Update Manual
       Document Number PCS-EU93-1.01


             December 14. 1993
            PCS USER SUPPOR1
               703/908-2680
        Systems Development Center
        200 N. Glebe Road, Suite 211
            Arlington, Va. 22203
-------
Preface


The Permit Compliance-System (PCS) is a database management system that supports the NPDES regu-
lations.  The system is available to registered users in State and EPA Regions through the National Com-
puter  Center in North Carolina.

This Manual gives a general overview of PCS and detailed information on entering information into PCS.
Documentation is included on PCS-ADE and PC-ENTRY data entry systems.  A detailed discussion of the
calculation of Reportable Non-Compliance (RNC) is also provided.  The format of Edit  and Update Audit
reports is shown. In addition to the DATA ENTRY, EDIT, and UPDATE manual, the following manuals
are available on the PCS system.

    Edit/'Update Error Messages Manual - Provides a brief explanation for each error message encountered
    during -the edit or update of PCS, arranged by data type.

    PCS Generalized Retrieval Manual - Describes in detail the operation of the batch retrieval system for
    PCS. Complete information is provided on the flexible format and fixed format reports that are avail-
    able as well as examples of each.

    Inquiry  User's Guide - Describes in detail the online 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. Tables that  describe all of the valid codes in PCS are included as well.

    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.

    PAL User's Guide - Describes  in detail the microcomputer retrieval software that provides managers with
    access to specific PCS  summary data.
                                                                                      Preface
-------
Revision  Code Description

The following table gives-a description of the revision code used with each revision of the "PCS Daia Entry,
Edit, and Update Manual.
  REVISION
    CODE
DATE
DOCUMENT
  NUMBER
DESCRIPTION
                12/14/93
            PCS-EU93-1.01
                 The following menus and screens have been added
                 or modified for the Geographic Data Enhance-
                 ment.

                 PCS-ADE Facility Menu, Figure 3-10 on
                 page 3-14 has been modified.

                 PCS-ADE Effluent Menu, Figure 3-11 on
                 page 3-15 has been modified.

                 PCS-ADE Permit Facility Geographic Data
                 Screen, Figure 3-19 on page 3-25 has been added.

                 PCS-ADE Outfall Geographic Data Screen,
                 Figure 3-41 on page 3-70 has been added.

                 PCS-ADE Table Update Menu, Figure  3-60 on
                 page 3-103 has been modified.

                 PCS-ADE Facility Lat/Long Description Codes
                 Screen, Figure 3-65 on page 3-106  has been
                 added.

                 PCS-ADE Pipe  Lat/Long Description Codes
                 Screen, Figure 3-66 on page 3-106  has been
                 added.
                                               PC-ENTRY Main Menu, Figure 4-6 on
                                               page  4-19 has been modified.

                                               PC-ENTRY Facility Menu, Figure 4-7 on
                                               page  4-20 has been modified.

                                               PC-ENTRY Effluent Menu, Figure 4-8 on
                                               page  4.-21.has been added..	  -..-	
                                               PC-ENTRY Enforcement Action Menu,
                                               Figure 4-9 on page 4-22 has been added.

                                               PC-ENTRY Inspections Menu, Figure 4-10 on
                                               page  4-23 has been added.

                                               PC-ENTRY Compliance Schedule Menu,
                                               Figure 4-11 on page 4-24 has been added.

                                               PC-ENTRY Other menu, Figure 4-12 on
                                               page  4-25 has been added.
                                               PC-ENTRY Facility Geographic Data screen,
                                               Figure 4-22 on page 4-39 has been added.

                                               PC-ENTRY Outfall Geographic Data screen,
                                               Figure 4-43 on page 4-82 has been added.
                                                                    Revision Code Description
-------
  REVISION
    CODE
DATE
DOCUMENT
  NUMBER
DESCRIPTION
                                                 Batch card-type '-C' has been modified.

                                                 Batch card-type ':P' has been modified.

                                                 Batch card-type ':5' has been added.
                                                 Coding considerations for facility level geographic
                                                 data elements have been added beginning on page
                                                 6-11.

                                                 Coding considerations for pipe level geographic
                                                 data elements have been added beginning on page
                                                 6-33.

                                                 No Data Indicator coding considerations have
                                                 been modified on page 6-44

                                                 Technical Review Criteria has been modified for
                                                 the SNC redefinition enhancement beginning on
                                                 page 8-10
Table  0-1. Revision Summary
    Permit Compliance System:  Data Entry. Edit, and Update Manual
-------
Contents


Chapter 1.  NPDES Overview                       v         	'..."...'                  i-
1.1 PCS Overview	  1-
1.2 Overview of PCS Functional Capabilities   	  1-
1.3 Input Processing  	  1-
   1.3.1 PCS Data Entry   	:	  1-
   1.3.2 Edit Processing   	  i-
   1.3.3 Update Processing	  1-

Chapter 2.   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 Ke:y Data Elements   	  2-4
2.3 PCS Transactions  	  2-8

Chapter 3.  PCS-ADE ON-LINE DATA ENTRY  	  3- i
3.1 PCS-ADE General Features  	  3-!
   3.1.1 Access to PCS-ADE  	  3-1
   3.1.2 -Input	  3-7
   3.1.3 Transaction Codes  	3-8
   3.1.4 Key Data Elements   	  3-9
   3.1.5 Edit Checking	3-9
   3.1.6 Error Messages   	  3-9
   3.1.7 Special Accept Options   	  3-9
   3.1.8 Automatic 'CHANGE' Option  	  3-10
   3.1.9 Security   	  3-10
   3.1.10 Batch ID Number   	  3-11
3.2 Da;:a Entry Screens   	  3-11
   3.2.1 Main Menu Screen 	  3-13
   3.2.2 Facility Data Screen #1 (FAC1)  	  3-20
   3.2.3 Facility Data Screen. £2 (FAC2) 	  3-23
   3.2.4 Permit Facility Geographic Data Screen (FAGD)  	  3-25
   3.2.5 Sludge Facility Data Screen (SLPF)  	  3-27
   3.2.6 Facility Address Screen (FACA)  	  3-29
   3.2.7 Owner/Operator Address Screen (FACO)   	  3-31
   3.2.8 Reissuance Data Screen (RCIN)  	  3-33
   3.2.9 Inspection Scheduling Screen (INSS)	 ._._.,. .		.._. .  . .  -3-35
   3.2.10  Inspection Screen (INSP)   ..."..".  V". '. .  . '.".'."."'.	  3-37
   3.2.11  Sludge Inspection Data (SLIN)  	  3-39
   3.2.12  Pretreatment Compliance Inspection Screen 1 (PCI1)   	  3-41
   3.2.13  Pretreatment Compliance Inspection Screen 2 (PCI2)   	  3-43
   3.2.14  Pretreatment Audit Screen 1 (PAU1)    	  3-45
   3.2.15  Pretreatment Audit Screen 2 (PAU2)    	  3-47
   3.2.16  Pretreatment Audit Screen 3 (PAU3)    	  3-49
   3.2.17  Pretreatment Summary Screen (PPS1)   	  3-51
   3.2.18  Compliance Schedule Screen (CSCH)    	  3-53
   3.2.19  Compliance Schedule Violation Screen (CVIO)   	  3-55
   3.2.20  Permit Tracking Screen (PTRK)   	  3-57
   3.2.21  Evidentiary Hearing Screen (EVHR)  	  3-59
   3.2.22  Grant Screen (GRNT)  	  3-61
   3.2.23  Outfall General Data Screen (OFLG)	 3-63
   3.2.24  Outfall Treatment Type/Comment Screen (OFLT)   	'.	  3-66


                                                                                    Contents
-------
  3.2.25  Sludge Outfall Data Screen (SLPS)  	'. .  .  3-68
  3.2.26  Outfall Geographic Data Screen (OFGD)  	  3-70
  3.2.27  Limits Screen (LIMS)    	  3-72
  3.2.28  Limit Modification Screen (LIMM)   	  3-74
  3.2.29  Season Split Screen (SEAN)  	  3-76
  3.2.30  Effluent  DMR  Data (EDMR)   	  3-78
  3.2.31  Effluent  Measurement Screens (EVIO)    	  3-81
  3.2.32  Enforcement Action Screen (ENAC)   	  3-85
  3.2.33  Enforcement Action Key Screen (EAKS)  	  3-87
  3.2.34  Administrative  Penalty Order Screen (EAP1)  	  3-97
  3.2.35  Administrative  Penalty Order Screen (EAP2)  	  3-99
  3.2.36  Single Event Violations Screen (SVIO)    	   3-101
  3.2.37  PCS Table  Modification  Screen (TABS)   	   3-103
  3.2.38  System Error Screen   	   3-108
  3.2.39  Exiting from a  PCS-ADE Session   	   3-108

Chapter 4.  PCS PC-ENTRY MICROCOMPUTER DATA ENTRY                                4-1
4.1   PCS PC-ENTRY General Topics  	4-1
  4.1.1  System Description   	•	  4-1
  4.1.2  Data Entry Screens  	  4-2
  4.1.3  Transaction Codes   	•	  4-2
  4.1.4  Key Data Elements   	  4-2
  4.1.5  Edit Checking	  4-2
  4.1.6  Edit Error Messages  	  4-2
  4.1.7  Batch Header Card/Security  Id  	  4-3
  4.1.8  Transaction Files  	  4-3
  4.1.9  System Error Messages    	  4-3
4.2  Equipment Description for PCS PC-ENTRY  	  4-4
  4.2.1  Microcomputer  Requirements   	-4-4
  4.2.2  Computer Communications  Requirements	  4-4
  4.2.3  Keyboard Description  	  4-5
  4.2.4  Keys with Special Functions   	  4-6
4.3  Installing PCS PC-ENTRY on a Microcomputer	  4-7
  4.3.1  How to Get  a Copy of the PCS PC-ENTRY System  	  4-7
  -.3.2  System File Description   	  4-8
  4.3.3  Harddisk  System Installation   	  4-8
  4.3.4  Floppy System Installation  	  4-8
  -.3.5  Special Note on Installing New Releases   	  4-9
  4.3.6  Entering Data using PCS PC-ENTRY   	  4-9
  4.3.7  General Screen Features   	  4-9
  -1.3.8  Getting Started   	  4-10
  -.3.9  Description of Information On System Screens    	  4-10
  -.3.10  Introduction Screen and Parm File  	  4-12
  4.3.11  MAIN FUNCTION MENU (MAIN)    	  4-13
  4.3.12  Description of Data Entry Screens   	  4-32
  4.3.13  Files Created During Data Entry    	   4-104
4.4  Uploading Data to the Mainframe at NCC   	   4-106
  4.4.1  Basic  Requirements for Uploading Data    	   4-107
  4.4.2  Description of Communications Software Available for Uploading Data  	   4-107

Chapters.  BATCH DATA ENTRY                                                              5-1
5.1  Transaction Codes	     	  5-1
5.2  Key Data Elements   	  5-2
5.3  Batch Card Formats	  5-5
  5.3.1  Header Card   	       .     .     .   5-6

     Permit Compliance System:  Data Entry, Edit, and Update .Vlanuai
-------
   5.3.2  Original Card Formats	  5-8
   5.3.3  Extended Card Formats   	-.  . .   5-23

 Chapter  6. CODING CONSIDERATIONS                  ..... .   .   ... ... :	  6-1
 6.1 Transaction Codes   ..... ~.  .... ~	  6-1
   6.1.1  NEW Transaction (Nj	  6-1
   6.1.2  CHANGE Transaction (C)  	  6-2
   6.1.3  DELETE Transaction (D)   	  6-3
   6.1.4  MASS DELETE Transaction (X)   . .  .	  6-3
   6.1.5  REPLACE Transaction (R)    	  6-3
 6.2 Coding Considerations by Data Type  	  6-4
   6.2.1  Permit Facility Data Type   	  6-4
   6.2.2  Inspection Data Type   	   6-13
   6.2.3  Inspection Scheduling Data Type   	   6-14
   6.2.4  PCI/Audit  Data Type   	•	   6-16
   6.2.5  Pretreatment Performance Summary Data Type  	   6-17
   6.2.6  Compliance Schedule Data Type  	   6-19
   6.2.7  Compliance Violation Data Type   	   6-24
   6.2.8  Permit Events Data Type   	   6-25
   6.2.9  Evidentiary' Hearing Information  	   6-26
   6.2.10  Pipe Schedule Data Type   	'	   6-26
   6.2.11  Parameter Limits Data Type   	   6-34
   6.2.12  Measurement  Violation Data Type  	   6-43
   6.2.13  Enforcement Action Data Type  	   6-51
   6.2.14  Enforcement Action Violation Key Data Type  	   6-52
   6.2.15  Administrative Penalty Order Data Type   	   6-53
   6.2.16  Single Event Violation Data Type   	   6-55
6.3 Permit Reissuance Processing   	   6-55
   6.3.1   Effluent Data Family Relationships   	   6-56
   6.3.2 Effluent Family Linkage   	   6-56
   6.3.3  Reissuance Control Indicator  	   6-56
   6.3.4  Reissuance Coding Rules  and Automatic Processing    	   6-58
6.4 Archival Processing   	   6-61
6.5 User Data Elements  	6-61

Chapter?.  PCS EDIT/UPDATE  PROCESSING   	  7-1
7.1 Pre-Edit Conversion Processing   	7-1
   7.1.1  Permit Facility Data Conversion Processing   	  7-1
   7.1.2 Permit Event Data Conversion Processing   	  7-2
   7.1.3  Pipe Schedule Data Conversion.Processing ••.. .-.-..  •.-. .  .  .•.-•-—.-•-•-:-7-."'.~:'.'.'.".'.".  '. .  ".'  7-2
   7.1.4   Parameter Limits Data Conversion Processing  	  7-2
   7.1.5  Measurement/Violation Data Conversion Processing   	7-3
   7.1.6 Compliance Schedule Data Conversion Processing   	7-3
   7.1.7  Compliance Schedule Violation Data Conversion Processing   	7-4
   7.1.8  Inspection Data Conversion Processing	7-4
   7.1.9  Enforcement Action Data  Conversion Processing  	  7-4
7.2 PCS  Edit Processing   	  7-5
   7.2.1  Edit Audit Report - Rejected Transactions  	7-7
   7.2.2  Edit Audit Report - Accepted Transactions    	7-8
   7.2.3  Edit Audit Summary Report   	   7-10
   7.2.4 Use of the Edit Audit Report  	   7-11
7.3 PCS  Update Processing	   7-11
   7.3.1  Update Processing Input/Output  	   7-12
   7.3.2 Update Audit Report - Rejected/Accepted Transactions  	   7-13
   7.3.3  Violations Recognition Report   	   7-15

                                                                                      Contents
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  7.3.4  Administrative Deficiency Report  	   7-17

Chapter 8. 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	  8-2
8.3  Effluent Measurement Violation Tracking  	  8-3
8.4  QNCR Reportable Noncompliance (RNC) Identification   	  8-5
  8.4.1  RNC Data Elements - Input Considerations  	  8-5
  8.4.2  PCS Production Runs that Detect/Resolve RNC   	  8-7
  8.4.3  Single Event Violations Independently Determined by The Agency   . .	  8-7
  8.4.4  Automatic Detection/Resolution of RNC for Violations   	  8-7
  8.4.5  Technical Review Criteria (TRC) Scenarios   	   8-10
  8.4.6  System Detection/Resolution of RNC By Enforcement Actions  	   8-13
  8.4.7  Manual Setting of RNC  .	   8-17
  8.4.8  RNC Data Elements - Retrieval Condiderations  	   8-18
  S.4.9  RNC Detection and Resolution Dates   	   8-20
  8.4.10 QNCR Facility Status   	   8-21
  8.4.11  RNC Coding Considerations   	   8-23

Chapter 9. Using TSO With PCS  	  9-1
9.1  Activating Special PCS/TSO Comands 	  9-1
  9.1.1  New Users (NEWUSER)  	  9-1
  9.1.2  STORET Users   	  9-2
9.2  ISPF PCS Menu    	  9-2
9.3  Summary of PCS/TSO  READY Prompt Commands   	  9-4
  9.3.1  Online HELP available on PCS/TSO Commands   	  9-5
9.4  Editing PCS Data Using the PCS/TSO Command (PCSEDIT)   	  9-6

Chapter 10.  USING RANGE  CHECKING IN PCS  	   10-1
10.!  OVERVIEW OF RANGE CHECKING   	   10-1
10.2  Range Checking with PCS-ADE  	   10-1
  10.2.1  Range Checking Enabling Combinations   	   10-1
10.3  Effluent DMR Data"Key Screen (EDMR)   	   10-2
:0.4  Effluent DMR Data Screen (EDMR)  	   10-2
10.5  Effluent Measurement  Key Screen (EVIO)   	   10-3
10.6  Effluent Measurement  Screen 2 (EVIO)  	   10-4
10.7  Range Checking with Batch Edit    	   10-5
  10.7.1  Submitting a Batch with JCL (Job Control Language)   	   10-5
  10.7.2 Range Checking Using PCSEDIT	   10-6
10.3  Quality Assurance (QA) of Existing Measurement Data in PCS	   10-7
10.9  Range Checking Table Reports   	   10-7
  10.9.1  How to Request Table Reports  	   10-7
  10.9.2 Using JCL to Create Table Listings   	   10-9
10.10  Range Checking Table Maintenance  	    10-10
10.11  Uses of Range Checking Tables   	    10-10
  10.11.1  Accessing Table Maintenance   	    10-11
  10.11.2  Range Checking  Main Menu	   10-11

Appendix A.  Introduction to the NPDES  Permit Issuance for PCS Users   	   A-1

Appendix B. Telephone Numbers 	B-l
                                                                                           C-i
Appendix C.  Full-Screen Key Conversion for VT-100 Terminals	
C.i TYMNET Full-Screen Key Conversion for VT-100 Terminals (EPACMT)  	   C-i

    Permit Compliance System:  Data Entry, Edit, and Update Manual
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C.2  NCC Full-Screen Key Conversion for VT-100 Terminals (NCC Data-Switch)  	  C-3

Appendix D. Quarterly Noncompliance Report. Category Noncompliance   	  D-l
D.I  QNCR Category I Noncompiiance   	  D-l
D.2  QNCR Category II  ....'.......'	"	  D-I

Appendix E. PCS PC Software available online at NCC   	
Appendix F. Using KERMIT to Upload/Download Files   	F-i
F.I Instructions for downloading the PCS PC Software with KERMIT  	F-i
F.2 Using KERMIT to upload PC-ENTRY data files  	F-l
   F.2.1  Harddisk System   	F-i
   F.2.2  Floppy System	F-3
   F.2.3  KERMIT Command Summary  	F-5
   F.2.4  Submitting PCS Edits on the Mainframe	F-5

Appendix G. Using CROSSTALK to Upload/Download Files  	  G-1

Appendix H. Using ARBITER to access PCS PC SOFTWARE   	  H-l

Appendix I. Using SEND/RECEIVE to Upload/Download Files   	  1-1
I.I Instructions for downloading the PCS PC Software with RECEIVE Cmd   	  1-1

Appendix J. Using COMPRESSED PC Software files (PKARC)   	J-l

Appendix K. PCS User Docmentation Comment Form  	  K-l

Index  	  X-l
                                                                               Contents
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Figures
  1-1.   Input Processing  	•-. -.  . ~ . •.  .•-.•": . .  . /	.'  . .  .".  ."......'	  i-2
  2-1.   PCS Data Structure  	  2-2
  3-1.   N'CC Signon Screen (Initial Menu)   	  3-2
  3-2.   NCC Signon Screen (Option  Menu)   	  3-2
  3-3.   NCC Signon Screen (CICS Signon)  	  3-3
  3-4.   NCC Signon Screen (entering parameters for your userid)   	  3-4
  3-5.   TYMNET Signon Screen (terminal types)  	  3-5
  3-6.   TYMNET Signon Screen (terminal types)  	  3-6
  3-7.   NCC Signon Screen (Initial Menu)   	  3-7
  3-8.   PCS-ADE Sign-On Screen   	  3-11
  3-9.   PCS-ADE Data Entry Subsystem Main Menu   	  3-13
 3-10.   PCS-ADE Data Entry Subsystem Facility Menu   	  3-14
 3-11.   PCS-ADE Data Entry Subsystem Effluent Menu  	  3-15
 3-12.   PCS-ADE Data Entry Subsystem Enforcement Action Menu  	  3-16
 3-13.   PCS-ADE Data Entry Subsystems Inspections Menu   	  3-17
 3-14.   PCS-ADE Data Entry Subsystems Compliance Schedule Menu   	  3-18
 3-15.   PCS-ADE Data Entry Subsystems Tables Menu   	  3-18
 3-16.   PCS-ADE Data Entry Subsystems Other Menu   	  3-19
 3-17.   Facility Data Screen #1  (FAC1)   	  3-20
 3-18.   Facility Data Screen #2 (FAC2)   	  3-23
 3-19.   Permit Facility Geographic Data (FAGD)  	  3-25
 3-20.   Sludge Facility Data Screen (SLPF)	  3-27
 3-21.   Facility Address Screen  (FACA)   	  3-29
 3-22.   Facility Owner/Operator Address Screen (FACO)    	  3-31
 3-23.   Reissuance Data Screen (RCIN)   	  3-33
 3-24.   Inspection Scheduling Screen  (INSS)   	  3-35
 3-25.   Inspections Screen (INSP)   	  3-37
 3-26.   Sludge Inspection  Data  Screen (SLIN)  	  3-39
 3-27.   Pretreatment Compliance Inspection Screen 1 (PCI1)   	  3-41
 3-28.   Pretreatment Compliance Inspection Screen 2 (PCI2)   	  3-43
 3-29.   Pretreatment Audit Screen 1 (PAU1)  	  3-45
 3-30.   Pretreatment Audit Screen 2 (PAU2)  	  3-47
 3-31.   Pretreatment Audit Screen 3 (PAU3)  .	  3-49
 3-32.   Pretreatment Summary  Screen (PPS1)  	  3-51
 3-33.   Compliance Schedule Screen (CSCH)  	  3-53
 3-34.   Compliance Schedule Violation Screen (CVIO)__ _ ._._._._,_, .„.,.,.,..,._,	3-55
 3-35.   Permit Tracking Screen"(PTRK)   . '."."'~ ".".'.  .'"'.	  3-57
 3-36.   Evidentiary' Hearing Screen (EVHR)   	  3-59
 3-37.   Grant Screen (GRNT)   .	  3-61
 3-38.   Outfall General  Data Screen (OFLG)  	  3-63
 3-39.   Outfall Treatment Type/Comment Screen (OFLT)   	  3-66
 3-40.   Sludge Outfall Data Screen (SLPS)   	  3-68
 3-41.   Outfall Geographic Data Screen (OFGD)   	  3-70
 3-42.   Limits Screen (LIMS)   	  3-72
 3-43.   Limit Modification Screen (LIMM)  	  3-74
 3-44.   Season Split Screen (SEAN)   	  3-76
 3-45.   Effluent DMR Data Key Screen (EDMR)  	  3-78
 3-46.   Effluent DMR Data Screen (EDMR)  	  3-79
 3-47.   Effluent Measurement Key Screen (EVIO)  	  3-81
 3-48.   Effluent Measurement Data Screen (EVIO)	3-83
 3-49.   Enforcement Action Screen (ENAC)   	  3-85


                                                                                   Figures
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   3-50.   Enforcement Action Key Screen (EAKS)   	  3-87
   3-51.   Expanded Enforcement Action Key Screen (EAKS/MV)   	  3-89
   3-52.   Expanded Enforcement Action Key Screen (EAKS/CV)  	  3-90
   3-53.   Expanded Enforcement Action Key Screen (EAKS/SV)   	  3-91
   3-54.   Enforcement Action Effluent Data Screen (EAKS)  	  3-93
   3-55.   Enforcement Action Compliance Schedule Data Screen (EAKS)  	  3-94
   3-56.   Enforcement Action Single Event Violation Data Screen (EAKS)    	  3-95
   3-57.   Administrative Penalty Order Screen (EAP1)   	  3-97
   3-58.   Administrative Penalty Order Screen (EAP2)   	  3-99
   3-59.   Single Event Violation Screen (SVIO)   	  3-101
   3-60.   Table Selection Menu (TABS)  	  3-103
   3-61.   Compliance Schedule Table Entry Screen   	  3-104
   3-62.   Permit Event Table Entry Screen   , .  .	  3-104
   3-63.   Evidentiary Hearing Table Entry Screen  	  3-105
   3-64.   Single Event Table Entry Screen  	  3-105
|   3-65.   Facility Lat/Long Description Codes Screen   	  3-106
j   3-66.   Pipe Lat/Long Description Codes Screen	  3-106
   3-67.   System Error Screen	  3-108
    4-1.   Introduction to Screen (INTRO)   	  4-12
    4-2.   Main Function Menu 	  4-13
    4-3.   GENERAL INFORMATION Function (H)   	  4-14
    4-4.   SYSTEM SETUP Function (S)  	  4-15
    4-5.   DATA ENTRY Function (E)   	  4-17
|    4-6.   MAIN MENU (PANEMAIN)   	  4-19
|    4-7.   FACILITY Sub-Menu  	  4-20
|    4-8.   EFFLUENT Sub-Menu    	  4-21
|    4-9.   ENFORCEMENT ACTION Sub-Menu   	  4-22
j   4-10.   INSPECTIONS Sub-Menu  	  4-23
|   4-11.   COMPLIANCE SCHEDULE Sub-Menu   	  4-24
!   4-12.   COMPLIANCE SCHEDULE Sub-Menu   	  4-25
   -1-13.   SUMMARY (E.QUIT)  	  4-26
   4-14.   FILE UTILITY Function (U)  	  4-27
   4-15.   DIRECTORY (U.D)  	  4-28
   4-16.   CONVERT (U.C)	  4-29
   -L-17.   ERASE (U.E.)   	.-	  4-30
   4-18.   SYSTEM TERMINATION (Q)   	  4-31
   4-19.   Facility Data Screen 1 (E.FAC1)    	  4-33
i   4-20.   Facility Data Screen 2 (E.FAC2)    	  4-35
   4-21.   Sludge Facility Data Screen (E.SLPF)   	:	  4-37
i   -1-22.   Facility Geographic Data Screen (E.FAGD)   	  4-39
   4-23.   Facility Address (E.FACA)  	  4-42
   4-24.   Facility Owner/Operator (E.FACO)    	  4-44
   4-25.   Reissuance (E.RCIN)  	  4-46
   4-26.   Inspection  (E.INSP)  	  4-48
   4-27.   Inspection  Scheduling (E.INSS)  	  4-50
   4-28.   Sludge Inspection Data (E.SLIN)   	  4-52
   4-29.   Pretrmt Comp.  INSP (E.PCI1)   	  4-54
   4-30.   Pretrmt Comp.  INSP 2 (E.PCI2)   	  4-56
   4-31.   Pretreatment Audit 1  (E.PAUl)  	:	'	  4-58
   4-32.   Pretreatment Audit 2 (E.PAU2)  	  4-60
   4-33.   Pretreatment Audit 3 (E.PAU3)  	• .   '   	  4-62
   4-34.   Pretrmt summary (E.PPS1)   	'	      ....  4-64
   4-35.   Compliance Schedules (E.CSCH1)   	         .    .        .  4-66
   -i-36.   Compliance Schedule Viol.  (E.CVIO)   	       	  4-68
   4-37.   Permit Tracking (E.PTRK)   	         .  .  4-70

       Permit Compliance System: Data Entry. Edit, and Update Manual
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 4-38.   Evidentiary Hearings (E.EVHR)  	  4-72
 4-39.   Grants (E.GRXT)  	  4-74
 4-40.   Outafll General Data (E.OFLG)  	  4-76
 4-41.   Outfall Treat. Type/Comment (E.OFLT)		 4-78
 4-42.   Sludge Outfall Data Screen (E.SLPS)  	  4-8C
 4-43.   Outfall Geographic Data Screen (E.OFGD)  	  4-82
 4-44.   Limits (E.LIMS)  	  4-85
 4-45.   Limit Modifications (E.LIMM)   	  4-87
 4-46.   Season Split (E.SEAN)  	'	  4-89
 4-47.   Effluent Dmr Page (E.EDMR)   	  4-9!
 4-48.   Eff. Measurement/Violations (E.EVIO)  	  4-93
 4-49.   Enforcement Actions (E.ENAC)   	  4-95
 4-50.   Enforcement Action Keys (E.EAKS)  	  4-97
 4-51.   Single Event Violations (E.SVIO)  	  4-99
 4-52.   Administrative Penalty Order Screen (E.EAP1)   	  4-101
 4-53.   Administrative Penalty Order (E.EAP2)    	  4-103
 4-54.   Upload Summary File (.SUM) Format  	  4-106
 4-55.   Basic Requirements for Upload   	  4-107
  6-1.   Categories of Data Stored on the PCS Data Base   	  6-2
  6-2.   Linking State-Level Control Authorties with POTWs and IL's  	  6-9
  6-3.   Linking POTW-Level Control Authorties with POTWs and lUs  	  6-10
  6-4.   Pretreatment Performance Summary (Sample)  	   6-18
  6-5.   Compliance Schedule Contained in an Enforcement Action   	  6-21
  6-6.   Compliance Schedule Data Entry using PCS-ADE  	  6-22
  6-7.   Pipe Schedule Data from NPDES Permit   	  6-27
  6-8.   Parameter Limits Data from Permit  	  6-35
  6-9.   PCS Parameter Table (by Parameter Description)   	  6-36
 6-10.   Parameter Limits Data from Administrative Order 85-229  	  6-41
  7-1.   Edit Audit Report for Rejected Transactions   	7-8
  7-2.   Edit Audit Report for Accepted Transactions   	  7-9
  7-3.   Edit Audit Summary Report  	  7-11
  7-4.   Update Audit Report for Rejected Transactions  	  7-13
  7-5.   Update Audit Report for Accepted Transactions   	  7-14
  7-6.   Update Audit Summary Report   	  7-15
  7-7.   Violations Recognition Report 	  7-16
  7-8.   Administrative Deficiency Report   	  7-18
  9-1.   PCS ISPF Group Menu   	  9-2
  9-2.   PCS User Support ISPF Option  	9-3
  9-3.   PCS Problem Information Facility (PIF) Initial Menu  	9-3
  9-4.   PCS Utilities ISPF Menu  .......  .-.  .--. .•:•--.--•-.•.•-. .  . .••:•.--. : : :vv. r. -. .  :-.V. .  9-4
  9-5.   PCSEDIT Command   	9-6
 10-1.   Effluent DMR Data Key Screen (EDMR) w/Range Checking OX   	  10-2
 10-2.   Effluent DMR Data Screen (EDMR)  	~	  10-3
 10-3.   Effluent Measurement Key Screen (EVIO) w/Range Checking ON    	  10-4
 10-4.   Effluent Measurement Data Screen (EVIO)  	  10-5
 10-5.   Range Checking Batch JCL   	  10-6
 10-6.   PCSEDIT Screen Using Range Checking   	  10-7
 10-7.   Index Listing of Range Tables  	  10-8
 10-8.   Range Checking Full Table Listing   	  10-8
 10-9.   Range Checking Index Utility  	  10-9
10-10.   Range Checking Table List Utility    	   10-10
10-11.   Range Checking Main Menu Screen   	   10-11
10-12.   Copy Table-to-Table Screen   	   10-12
10-13.   Create a New Table Screen  . . .-	   10-13
10-14.   Delete a Table Screen   	   10-13

                                                                                    Figures
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10-15.   Change a Table Description Screen   	   10-14
10-16.   Add/Change/Delete a Parameter Screen   	   10-15
10-17.   Cycle Change/Delete Parameters Screen   	   10-15
10-18.   Cycle Change/Delete a Parameter Screen  	   10-16
 F-l.   KERMIT Data Transfer Status Screen   	'                  p-3
     Permit Compliance System:  Data Entry. Edit, and Update Manual
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Tables


  0-1.  -Revision Summary   	."	   v
  2-1.  Key Data Elements   	  2-4
  2-2.  PCS Transaction Codes  	  2-9
  3-1.  Terminal Function Keys   	   3-12
  3-2.  EAKS Data Screen Accept Options and Their Effect  	   3-95
  4-1.  Basic Edit Criteria for PCS PC-ENTRY  	  4-2
  4-2.  System Error Messages   	  4-3
  4-3.  Keyboard Description  	  4-5
  4-4.  Keys with special functions   	  4-7
  4-5.  System File Descriptions   	  4-8
  4-6.  Data Entry Processing Comparison: PCS-ADE and PC-ENTRY    	   4-32
  4-7.  Communications Software Options   	   4-107
  5-1.  Batch Key Data Elements   	  5-2
  5-2.  Header Card    	  5-6
  5-3.  Batch Security Codes by State   	  5-6
  5-4.  Card-type 1  	  5-8
  5-5.  Card-type 2  	  5-9
  5-6.  Card-type 3  	  5-9
  5-7.  Card-type C    	   5-10
  5-8.  Card-type A    	   5-10
  5-9.  Card-type B    	   5-11
 5-10.  Card-type E    	   5-11
 5-11.  Card-type F	   5-11
 5-12.  Card-type G    	   5-12
 5-13.  Card-type H    	   5-12
 5-14.  Card-type I   	   5-12
 5-15.  Card-type K    	   5-13
 5-16.  Card-type P	  .  . . '	   5-13
 5-17.  Card-type Q    	   5-13
 5-18.  Card-type 6  	   5-14
 5-19.  Card-type V    	   5-14
 5-20.  Card-type 5  	   5-15
 5-21.  Card-type 8  	   5-15
 5-22.  Card-type 9  	   5-16
 5-23.  Card-type 2  	   5-17
 5-24.  Card-type J   .... ......  . ...,...,_  ._....,.,_,_...,....._...._	-. .  . ,.-,-.-. .-.-.  -5-17
 5-25.  Card-type L  '..'.."	   5-17
 5-26.  Card-type M    	   5-18
 5-27.   Card-type R    	   5-19
 5-28.  Card-type W    	   5-20
 5-29.   Card-type X    	   5-20
 5-30.  Card-type Y    	   5-21
 5-31.   Card-type Z    	   5-22
 5-32.   Card-type '-A'   	   5-23
 5-33.   Card-type '-B'   	   5-24
 5-34.  Card-type '-C'   .  '.	   5-24
 5-35.  Card-type '-D'   	   5-25
 5-36.  Card-type '-£'   	   5-25
 5-37.  Card-type '-F'   	   5-26
 5-38.   Card-type '-G'	   5-26
 5-39.   Card-type '-H'   	   5-26


                                                                                       Tables
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5-40.   Card-type '-I'  	   5-27
5-41.   Card-type '-J'  	   5-27
5-42.   Card-type '-K'   	   5-27
5-43.   Card-type ':T    	   5-28
5-44.   Card-type ':U'   	   5-28
5-45.   Card-type':?'    	   5-28
5-46.   Card-type ':!'  	   5-29
5-47.   Card-type '-V	   5-29
5-48.   Card-type '-W   	   5-30
5-49.   Card-type ':L'    	   5-30
5-50.   Card-type ':M'   	   5-31
5-51.   Card-type ':R'   	   5-32
5-52.   .Card-type ':S'  	   5-32
5-53.   Card-type ':A'   	   5-32
5-54.   Card-type ':B'    	   5-33
5-55.   Card-type ':C'    	   5-34
5-56.   Card-type ':D'   	   5-34
5-57.   Card-type ':£'    	,	   5-35
5-58.   Card-type '-L'   	   5-36
5-59.   Card-type '-M'   	   5-36
5-60.   Card-type '-?'    	•	   5-37
5-6 i.   Card-type '-Q'   	   5-37
5-62.   Card-type '-X'   	   5-38
5-63.   Card-type '-Z'   	   5-38
5-64.   Card-type '-V   	   5-39
5-65.   Card-type '-!'	   5-39
5-66.   Card-type '-2'  	   5-40
5-67.   Card-type '-3'  	   5-40
5-68.   Card-type ':5'	   5-41
5-69.   Card-type '-4'	   5-41
5-70.   Card-type '-5'  	   5-42
5-71.   Card-type ':3'  	   5-43
5-72.   Card-type '-6'  	   5-43
5-73.   Card-type '-7	   5-44
5-74.   Card-type '-8'  	   5-45
5-75.   Card-type ':4'  	   5-46
5-76.   Card-type :2   	   5-46
5-77.   Card-type '-9'  	   5-47
5-78.   Card-type '-0'	   5-47
5-79.   Card-type '-R'   	   5-48
5-80.   Card-type '-S'    	   5-49
5-81.   Card-type '-T   	   5-49
5-82.   Card-type '-L"   	   5-49
5-33.   Card-type :F   	   5-50
5-S4.   Card-type :G  	   5-51
5-85.   Card-type :H  	   5-51
5-86.   Card-type :I   	   5-52
5-87.   Card-type :J    	   5-52
5-S8.   Card-type :K  	".	'.'.	   5-53
5-89.   Card-type '-N"   	   5-53
 6-1.   PCS Inspection Type Groups     	      .'	   6-13
 6-2.   Encoding of Initial. Interim, and Final Stan and End Dates  	   6-30
 8-i.   Violation Codes - Measurement   	  8-4
 3-2.   Extended Compliance Schedule Codes (CSCH)   	           .   8-1-*
 3-3.   RNC Detection Codes    	   8-18

      Permit Compliance System:   Data  Entry, Edit, and Update Manual
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 8-4.   RNC Resolution Codes  	  S-19
 8-5.   RNC Detection and Resolution Dates   	  8-2C
 8-6.   RNC Dates that are generated from RNC Codes   . .  .	  8-2C
 8-7.   QNCR Facility Status Acronyms	  S-2i
 8-8.   QNCR Facility Status Flags set by Individual Violations   	  8-22
 8-9.   Manual Entry of Facility Status Codes - Batch Format   	  8-22
8-10.   Manual Entry of Facility Status Codes - Values  	  S-23
8-11.   Coding Extended CS for Effluent Violations  	  8-24
8-12.   Coding Enforcement Actions for Effuent Violations   	  8-2^
8-13.   Coding Extended Compliance Schedules for CS Violations   	  8-26
8-14.   Coding Format Enforcement Actions for CS Violations   	  8-26
8-15.   Coding Extended Compliance Schedules for Non-Rec. Violations    	  8-27
8-16.   Coding Enforcement Actions for DMR Non-Rec. Violations   	  8-28
8-17.   Coding Closure of an action for Effluent Violations    	  8-29
8-18.   Coding Closure of an action for Compliance Schedule Violations  	  8-30
8-19.   Coding Closure of an action for DMR Non-Receipt Violations  	  8-31
8-20.   Coding Closure of an action for Single Event Violations   	  8-31
8-21.   Coding Manual Detection/Resolution of Effluent Violations   	  8-32
8-22.   Coding Manual Detection/Resolution of Compliance Schedule Viol	  S-34
8-23.   Coding Manual Detection/Resolution of DMR  Non-Rec. by  Deletion   	  8-35
8-24.   Coding Manual Detection/Resolution of DMR  Non-Rec. by  Addition   	  8-36
8-25.   Coding Manual Detection/Resolution of Single Event Violations  	    8-36
8-26.   Coding 'Back Into Compliance' for Compliance Schedule Violations    	  8-38
 9-1.   Summary of PCS/TSO Commands   	  9-4
 9-2.   Summary of Online HELP on PCS/TSO Commands   	  9-5
F-l.   Example of uploading PC-ENTRY file 	F-6
                                                                                    Tables
-------
Permit Compliance System
       Inquiry Manual
  Document Number PCS-IN97-1.01


          May 8, 1997
       PCS USER SUPPORT
          202/564-7277
    U.S. EPA - PCS User Support
        Mail Code - 2222A
        401 M Street, SW
      Washington, DC  20460
-------
Preface

The Permit Compliance System (PCS) is a database management system that supports the NPDES regu-
lations.  The system is available to registered users in State and EPA Regions through the National Com-
puter Center in North Carolina.

PCS INQUIRY is an interactive retrieval software package designed to give online access to the PCS data-
base. This User's Guide gives complete information about how to use INQUIRY to retrieve information
from PCS.  In addition to the INQUIRY Manual, the following manuals are available on the PCS system.
    PCS Data Entry, Edit, and Update Manual - General Overview of PCS and detailed information on
    entering data into PCS. Includes documentation on PCS-ADE and PC-ENTRY.
    Generalized Retrieval Manual - Describes in detail the batch retrieval package for retrieving all types of
    data from PCS. This includes preprinting DMRs and running the Quarterly Non-Compliance Report
    (QNCR).
    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.
    PCS PC Persona! Assistance Link (PAL) - Provides information on the use of the personal computer to
    produce preformatted reports from  PCS using only a few keystrokes on the microcomputer.
    Restricted Information in PCS
 Public access to the PCS Database using the Inquiry system allows access to all information in PCS
 except the following:  Inspection Scheduling information and Referred Enforcement Action information.
 This data is considered enforcement sensitive.
                                                                                     Preface
-------
Revision Code Description
The following table gives a description of the revision code used with each revision of the PCS Inquiry
Manual.
REVISION
CODE
1
DATE
05/08/97
DOCUMENT
NUMBER
PCS-IN97-1.01
DESCRIPTION
All Manager's, Prompt, and Command mode
reports have 2-digit years. The years '00-68' have
an implied century of 20.
Table  0-1. Revision Summary
                                                                Revision Code Description
-------
 Contents


 Chapter 1.  INTRODUCTION TO PCS INQUIRY   	  1-1
 1.1 PCS Data Base   	  1-1
   1.1.1 Organization of Data in PCS  	  1-2
   1.1.2 Data elements	  1-3
   1.1.3 Datatypes  	  1-4
   1.1.4 Accessing the PCS data base  	  1-6
 1.2 PCS Capabilities  	  1-7

 Chapter 2.  PCS INQUIRY LOGON/LOGOFF PROCEDURES  	  2-1
 2.1 Logging On to TSO  	  2-1
 2.2 Accessing PCS INQUIRY   	'	  2-5
 2.3 Exiting PCS INQUIRY   	  2-6

 Chapter 3.  INITIATING AN INQUIRY SESSION   	  3-1
 3.1 Entering PCS INQUIRY	  3-1
 3.2 SELECTING MANAGERS MODE, PROMPT MODE OR COMMAND MODE    	  3-1
   3.2.1 Selecting MANAGERS Mode (TVf)  	3-1
   3.2.2 Selecting PROMPT  Mode (T")  	  3-2
   3.2.3 Selecting COMMAND Mode ("C")   	  3-2
   3.2.4 Requesting Help (*?*)   	  3-2
 3.3 PCS SECURITY  	  3-2
 3.4 INQUIRY KEYBOARD FUNCTIONS  	  3-3

 Chapter 4.  CONDUCTING AN INQUIRY SESSION IN MANAGERS MODE  	4-1
 4.1 Producing a MANAGERS Mode Report  	4-1
   4.1.1 Creating a Set using the Set Maintenance Option  	4-1
   4.1.2 Creating a Set using Primary Selection Criteria	  4-10
   4.1.3 Selecting a MANAGERS Mode Report   	  4-26
   4.1.4 Verifying the Report Selection Criteria   	  4-35
   4.1.5 Producing a Tally   	  4-36
   4.1.6 Displaying the Report Output Data   	  4-36
4.2 MANAGERS Mode Reports - Common Features  	  4-38

 Chapters. INQUIRY MANAGERS MODE REPORTS   	  5-1
 5.1 Facility Directory Report  	  5-2
   5.1.1 Facility Directory Selection Criteria   	  5-2
   5.1.2 Facility Directory Output  	  5-2
 5.2 Facility Overview Report	  5-3
   5.2.1  Facility Overview Report Selection Criteria	  5-3
   5.2.2 Facility Overview Report Output   	  5-4
 5.3 Permit Events Report  	  5-9
   5.3.1  Permit Event Report Selection Criteria	  5-9
   5.3.2 Permit Event Report Output  	  5-10
5.4 Inspection Scheduling Report  	  5-12
   5.4.1  Inspection Scheduling Report Selection Criteria   	  5-12
   5.4.2 Inspection Scheduling Report Output  	  5-13
5.5 Inspection Report  	  5-15
   5.5.1 Inspection Report Selection Criteria   	  5-15
   5.5.2 Inspection Report Output	  5-16
   5.5.3 Sludge Inspection Report Output   	  5-17
5.6 Pretreatment PCI/Audit Report  	  5-19


                                                                                Contents
-------
   5.6.1  Pretreatment PCI/Audit Report Selection Criteria  	  5-19
   5.6.2  Pretreatment PCI/Audit Report Output	  5-20
5.7 Pretreatment Performance Summary Report	  5-21
   5.7.1  Pretreatment Performance Summary Report Selection Criteria   .  . .	  5-22
   5.7.2  Pretreatment Performance Summary Report Output   	  5-22
5.8 Compliance Schedule and Violations Report   	  5-24
   5.8.1  Compliance Schedule and Violations Report Selection Criteria   	  5-24
   5.8.2  Compliance Schedule and Violations Report Output   	  5-25
5.9 Enforcement Action Report   	  5-27
   5.9.1  Enforcement Action Report Selection Criteria   	  5-27
   5.9.2  Enforcement Action Report Output  	  5-28
5.10 Outfall Limits Report	  5-31
   5.10.1  Outfall Limits Report Selection Criteria  	  5-31
   5.10.2  Outfall Limits Report Output  	  5-31
5.11 DMR Overview Report	  5-34
   5.11.1  DMR Overview Report Selection Criteria  	  5-34
   5.11.2  DMR Overview Report Output   	  5-35
5.12 Evidentiary Hearing Report   	  5-38
   5.12.1  Evidentiary Hearing Report Selection Criteria   	  5-38
   5.12.2  Evidentiary Hearing Report Output   	  5-38

Chapter 6.  CONDUCTING AN INQUIRY SESSION!* PROMPT MODE                         6-1
6.1 Producing a PROMPT  Mode  Report	  6-1
   6.1.1  Selecting a PROMPT Mode Report	'.	6-1
   6.1.2  Specifying Selection Criteria   	  6-2
   6.1.3  Verifying Selection Criteria  	  6-9
   6.1.4  Tally  	  6-9
   6.1.5  Display the Report  Output Data  	   6-10
6.2 PROMPT Mode Reports - Common Features   	   6-11

Chapter 7.  INQUIRY PROMPT MODE REPORTS                                              "-1
7.1 Code and Description Report	  7-2
   7.1.1  Code and Description Report Output  	  7-2
7.2 Facility Directory Report  	  7-3
   7.2.1  Facility Directory Selection Criteria   	  7-3
   7.2.2  Facility Directory Output   	  7-4
7.3 Facility Overview Report  	  7-6
   7.3.1  Facility Overview Report Selection Criteria	  7-6
   7.3.2  Facility Overview Report Output   	  7-7
7.4 Outfall Limits Report  	   7-13
   7.4.1  Outfall Limits Report Selection Criteria	   7-13
   7.4.2  Outfall Limits Report Output	   7-14
7.5 DMR Overview Report    	   7-17
   7.5.1  DMR Overview Report Selection Criteria   	   7-17
   7.5.2  DMR Overview Report output    	   7-18
7.6 Compliance Schedule and Violation Report   	   7-20
   7.6.1  Compliance Schedule and  Violation Report Selection Criteria  	   7-20
   7.6.2  Compliance Schedule and  Violation Report Output  	   7-21
7.7 Inspection Scheduling Report   	   7-24
   7.7.1 Inspection Scheduling Report Selection Criteria   	   7-24
   7.7.2 Inspection Scheduling Report Output  	   7-25
7.8 Inspection Report  	   7-27
   7.8.1 Inspection Report Selection Criteria 	   7-27
   7.8.2 Inspection Report Output	   7-28
   7.8.3 Sludge Inspection Report Output   	   7-30

     Permit Compliance System: Inquiry Manual
-------
 7.9 Pretreatment PCI/Audit Report  	  7-31
   7.9.1 Pretreatment PCI/Audit Report Selection Criteria  	  7-31
   7.9.2 Pretreatment PCI/Audit Report Output   	  7-32
 7.10 Pretreatment Performance Summary Report  	  7-34
   7.10.1  Pretreatment Performance Summary Report Selection Criteria  	  7-34
   7.10.2  Pretreatment Performance Summary Report Output	  ~--35
 7.11 Permit Tracking Report  	  7-36
   7.11.1  Permit Tracking Report Selection Criteria  	  7-37
   7.11.2  Permit Tracking Report Output    	  7-37
 7.12 Evidentiary Hearing Report	  7-39
   7.12.1  Evidentiary Hearing Report Selection Criteria   	  7-39
   7.12.2  Evidentiary Hearing Report Output  	  7-40
 7.13 Enforcement Action Report   	  7-42
   7.13.1  Enforcement Action Report Selection Criteria   	  7-42
   7.13.2  Enforcement Action Report Output  	7-43

 Chapters.  CONDUCTING AN INQUIRY SESSION IN COMMAND MODE  	  8-1
 8.1 INQUIRY Commands  	  8-2
   8.1.1 T Help Command   	  8-3
   8.1.2 SELECTION Command  	  8-3
   8.1.3 MORE TO SELECT Command    	  8-4
   8.1.4' SORT command  	  8-5
   8.1.5 DISPLAY command   	  8-5
   8.1.6 TALLY Command   	  8-6
 8.2 PROMPT ("P") Command   	  8-6
 8.3 QUIT "Q" Command  	  8-7
 8.4 Data  Elements/Acronyms   	  8-7
   8.4.1 Key data elements   	  8-7
 8.5 INQUIRY Operators	  8-7
 8.6 Values	  8-8
 8.7 Producing a Report  	  8-8

Appendix  A. PCS User Docmentation Comment Form  	  A-1

Index   	  X-l
                                                                                 Contents
-------
Figures
  1-1.   PCS Data Structure  	  1-2
  1-2.   Sample Data Elements   	  1-4
  2-1.   EPA Telecommmunications Network Screen   	  2-1
  2-2.   EPA2 TSO/E LOGON7 Screen   	2-2
  2-3.   EPA News Alert Screen	  2-2
  2-4.   TSO -READY" Prompt   	2-3
  2-5.   User ID Not a Member of CLIST   	2-4
  2-6.   User ID Member of CLIST  	  2-5
  2-7.   INQUIRY MAIN Selection Screen  	2-6
  4-1.   MANAGERS INQUIRY Main Menu Screen	4-2
  4-2.   Permit Numbers Set Maintenance Screen   	4-3
  4-3.   "T Option with Existing Sets - (Set LUCY Selected)  	4-4
  4-4.   T Option with Existing Sets - (Set LUCY Displayed)	4-4
  4-5.   "?" Option without Existing Sets  	4-5
  4-6.   New Set Name Option- (Set LUCY2 entered)  	4-5
  4-7.   New Set Name Option (cont.) - (Set LUCY2 created)  	4-6
  4-8.   Existing Set Name Option - Existing Set LUCY2 entered   	4-6
  4-9. ~ Set Maintenance Option - Confirm copy of existing set   	4-7
 4-10.   Set Maintenance Option - Copy of Existing Set Created  	4-8
 4-11.   Delete Set Option - Delete  selected for set  LUCY	4-8
 4-12.   Delete Set Option (cont.) - Delete Set LUCY confirmed  	4-9
 4-13.   Delete Set Option - Set LUCY deleted  	4-9
 4-14.   Primary Selection Criteria Screen   	  4-10
 4-15.   Primary Selection Criteria Screen - Facility Name  	  4-11
 4-16.   Primary Selection Criteria - Major/Minor Indicator   	  4-12
 4-17.   Primary Selection Criteria - Facility Type  	  4-13
 4-18.   Primary Selection Criteria - Region   	  4-14
 4-19.   Primary- Selection Criteria - State  	  4-15
 4-20.   Primary- Selection Criteria - Permit Expiration   	  4-16
 4-21.   Primary Selection Criteria Screen - USGS  Hydrologic Basin Codes   	  4-17
 4-22.   USGS Hydrologic Basin Code Sub-menu   	  4-18
 4-23.   USGS Hydrologic Basin Code Sub-menu - Region   	  4-19
 4-24.   USGS Hydrologic Basin Code Sub-menu - Sub-region  	  4-20
 4-25.   USGS Hydrologic Basin Code Sub-menu - Accounting Unit   	  4-21
 4-26.   USGS Hydrologic Basin Code Sub-menu - Cataloging Unit	  4-22
 4-27.   Primary Selection Criteria - Standard Industrial Class	  4-23
 4-28.   Primary Selection Criteria - River Basin Codes	  4-24
 4-29.   Primary Selection Criteria Screen - Confirmation Screen  	  4-25
 4-30.   Primary Selection Criteria Screen - Set Name Window  	  4-25
 4-31.   MANAGERS Mode Report Selection Screen  	  4-27
 4-32.   MANAGERS Mode Permit/Set Selection  Screen  - Permit Selection  	  4-28
 4-33.   MANAGERS Mode Permit/Set Selection  Screen  - Permit Selection  	  4-29
 4-34.   MANAGERS Mode Permit/Set Selection  Screen  (Set Option)   	  4-30
 4-35.   MANAGERS INQUIRY Inspection Criteria Screen  	  4-3J
 4-36.   Inspection Start Date Window  	  4-32
 4-37.   MANAGERS INQUIRY Inspection Criteria Screen with Inspection Start Date   	  4-33
 4-38.   MANAGERS INQUIRY Inspection Criteria Screen - Inspection Types   	  4-34
 4-39.   MANAGERS INQUIRY Inspection Criteria Screen - Inspector Codes  	  4-35
 4-40.   MANAGERS INQUIRY Tally Screen - Inspection Report  	  4-36
 4-41.   MANAGERS INQUIRY Inspection Report   	  4-37
 4-42.   MANAGERS INQUIRY Inspection Report with Sludge Data Elements	  4-38


                                                                                    Figures
-------
 5-1.   MANAGERS  Facility Directory Permit/Set Selection Screen	  5-2
 5-2.   MANAGERS Mode Facility Directory Report  	  5-3
 5-3.   MANAGERS Mode Facility Overview Selection Screen  	  5-4
 5-4.   MANAGERS Mode Facility Overview Report - General Information  	  5-6
 5-5.   MANAGERS MODE Facility Overview Report - Permit Information   	  5-7
 5-6.   MANAGERS Mode Facility Overview Report - Mailing Information  	  5-7
 5-7.   MANAGERS Mode Facility Overview Report - Compliance Schedule   	  5-8
 5-8.   MANAGERS Mode Facility Overview Report - User Data Elements  	  5-8
 5-9.   MANAGERS Mode Facility Overview Report - Outfall Summary Section  	  5-9
5-10.   MANAGERS Mode Permit Events Report Criteria Screen  	  5-10
5-11.   MANAGERS Mode Permit Event Report  	  5-11
5-12.   MANAGERS Mode Permit Event Report - Tally   	  5-12
5-13.   MANAGERS Mode Inspection Scheduling Report Criteria Screen   	  5-13
5-14.   MANAGERS Mode Inspection Scheduling Report   	  5-14
5-15.   MANAGERS Mode Inspection Scheduling Report Tally   	  5-15
5-16.   MANAGERS Mode Inspection Report Criteria Screen    	  5-16
5-17.   MANAGERS Mode Inspection Report  	  5-17
5-18.   MANAGERS INQUIRY Sludge Inspection Report  	  5-18
5-19.   MANAGERS Mode Inspection Report Tally  	  5-19
5-20.   MANAGERS Mode Pretreatment PCI/Audit Report Selection Screen   	  5-20
5-21.   MANAGERS Pretreatment PCI/Audit Report  	  5-21
5-22.   MANAGERS Mode Pretreatment PCI/Audit Tally   	  5-21
5-23.   MANAGERS Mode Pretreatment Performance Summary Selection Screen	  5-22
5-24.   MANAGERS Mode Pretreatment Performance Summary Report  	  5-23
5-25.   MANAGERS Mode Pretreatment Performance Summary Tally   	  5-23
5-26.   MANAGERS Mode Compliance Schedule & Violation Criteria Screen   	  5-24
5-27.   MANAGERS Compliance Schedule and Violations  Report - Part 1   	  5-26
5-28.   MANAGERS Compliance Schedule and Violations  Report - Part 2   	  5-26
5-29.   MANAGERS Mode Compliance Schedule & Viol Report Tally   	  5-27
5-30.   MANAGERS Mode Enforcement Action Report Criteria Screen   	  5-28
5-31.   MANAGERS Mode Enforcement Action Report - Part 1  	  5-29
5-32.   MANAGERS Mode Enforcement Action Report - Part 2	".  . .  5-30
5-33.   MANAGERS Mode Enforcement Action Report Tally  	  5-30
5-34.   MANAGERS Mode Outfall Limits Criteria Screen  	  5-31
5-35.   MANAGERS Mode Outfall Limits Report  - Part 1   	  5-33
5-36.   MANAGERS Mode Outfall Limits Report  - Part 2   	  5-33
5-37.   MANAGERS Mode Outfall Limits Report  Tally	  5-34
5-38.   MANAGERS Mode DMR Overview Report  Criteria Screen  	  5-35
5-39.   MANAGERS Mode DMR Overview Report   	   5-37
5-40.   MANAGERS Mode DMR Overview Report Tally   	   5-37
5-41.   MANAGERS Evidentiary Hearing Report Criteria Screen   	   5-38
5-42.   MANAGERS Mode Evidentiary Hearing Report 	'.	   5-39
5-43.   MANAGERS Mode Evidentiary Hearing Report Tally   	   5^0
 6-1.   PROMPT Mode Main Selection Screen  	 6-2
 6-2.   Facilty Directory Selection Screen 	 6-3
 6-3.   State/County Code "Help" Screen	 6-5
 6-4.   Type of Ownership Code "Help" Screen   	 6-6
 6-5.   Standard Industrial Classification  "Help" Screen  	 6-7
 6-6.   Major/Minor River Basin Code "Help" Screen   	 6-8
 6-7.   Return to Selection Screen   	 6-9
 6-8.   Tally Screen   	  6-10
 6-9.   Facility Directory Report Sample Output    	  6-11
 7-1.   Code and Description Report Selection Screen   	 7-2
 7-2.   PROMPT Mode Code and Description Report  	 7-3
 7-3.   PROMPT Mode Facility Directory Report Selection Screen   	 7-4

    Permit Compliance System:  Inquiry Manual
-------
  7-4.  PROMPT Mode Facility Directory Report   	  7-5
  7-5.  PROMPT Mode Facility Directory Report - Tally  	  7-6
  7-6.  Sample PROMPT Mode Facility Overview Report - Selection Screen  	  7-7
  7-7.  PROMPT Mode Facility Overview Report - General Information  	  7-9
  7-8.  PROMPT Mode Facility Overview Report - Permit Information   	  7-10
  7-9.  PROMPT Mode Facility Overview Report - Mailing Information  	  7-10
 7-10.  PROMPT Mode Facility Overview Report - Outfall Summary  	  7-11
 7-11.  PROMPT Mode Facility Overview Report - Outfall Summary  	  7-11
 7-12.  PROMPT Mode Facility Overview Rpt - Compliance Schedule Summary   	  7-12
 7-13.  PROMPT Mode Facility Overview Rpt - Compliance Schedule Summary   	  7-12
 7-14.  PROMPT Mode Facility Overview Report - User Data Elements   	  7-13
 7-15.  PROMPT Mode Outfall Limits Report Selection Screen	  7-14
 7-16.  PROMPT Mode Outfall Limits Report - Pan 1   	  7-16
 7-17.  PROMPT Mode Outfall Limits Report - Part 2   	  7-16
 7-18.  PROMPT Mode Outfall Limits Report - Summary   	  7-17
 7-19.  Sample PROMPT  Mode DMR Overview Report Selection Screen   	  7-18
 7-20.  PROMPT Mode DMR Overview Report   	  7-20
 7-21.  PROMPT Mode Compliance Sched & Viol Selection Screen   	  7-21
 7-22.  PROMPT Mode Compliance Sched & Viol Report - Part  1   	  7-22
 7-23.  PROMPT Mode Compliance Sched & Viol Report - Part 2   	'	  7-23
 7-24.  PROMPT Mode Compliance Sched & Viol Report Tally  	  7-24
 7-25. ~ PROMPT Mode Inspection Scheduling Report Selection Screen   	  7-25
 7-26.  PROMPT Mode Inspection Scheduling Report  	  7-26
 7-27.  PROMPT Mode Inspection Scheduling Report - Tally  	  7-27
 7-28.  PROMPT Mode Inspection Report Selection Screen	  7-28
 7-29.  PROMPT Mode Inspection Report    	  7-29
 7-30.  PROMPT Mode Inspection Report    	  7-30
 7-31.  PROMPT Mode Sludge Inspection Report  	  7-31
 7-32.  PROMPT Mode Pretreatment PCI/Audit Report Selection Screen   	  7-32
 7-33.  PROMPT Mode Pretreatment PCI/Audit Report   	  7-33
 7-34.  PROMPT Mode Pretreatment PCI/Audit - Tally 	  7-34
 7-35.   PROMPT Mode Pretreatment Performance Summary Selection Screen   	  7-35
 7-36.   PROMPT Mode Pretreatment Performance Summary Report   	  7-36
 7-37.   PROMPT Mode Pretreatment Performance Summary - Tally   	  7-36
 7-38.   PROMPT Mode Permit Tracking Report Selection Screen   	  7-37
 7-39.   PROMPT Mode Permit Tracking Report - Part 1   	  7-38
 7-40.   PROMPT Mode Permit Tracking Report - Tally  	  7-39
7-41.   PROMPT Mode Evidentiary Hearing Report Selection Screen  	  7-40
 7-42.   PROMPT Mode Evidentiary Hearing Report   	  7-41
7-43.   PROMPT Mode Evidentiary Hearing Report - Tally   	  7-42
7-44.   PROMPT Mode Enforcement Action Report Selection Screen  	  7-43
7-45.   PROMPT Mode Enforcement Action Report Part 1   	  7-44
7-46.   PROMPT Mode Enforcement Action Report - Tally   	  7-45
 8-1.   COMMAND Mode Selection Screen   	  8-1
 8-2.   COMMAND Mode Tally Help Screen   	  8-3
 8-3.   COMMAND Mode Selection and Display Statements   	  8-9
 8-4.   COMMAND Mode Report   	  8-9
                                                                                Figures
-------
Tables

  0-1.  Revision Summary   	  v
  1-1.  PCS Data Types  	  3.4
                                                                          Tables
-------
  Permit Compliance System
Generalized Retrieval Manual
   Document Number PCS-GR96-1.00


           April 23, 1996
        PCS USER SUPPORT
           202/564-7277
     U.S. EPA - PCS User Support
         Mail Code - 2222A
         401 M Street, SW
       Washington, DC 20460
-------
Preface

The Permit Compliance System (PCS) is a database management system that supports the NPDES regu-
lations.  The system is available to registered users in State and EPA Regions through the National Com-
puter Center in North Carolina.

PCS ENVIRONMENT GENERALIZED RETRIEVAL is a retrieval package that runs in batch and pro-
vides reports on all data in PCS. This Manual gives complete information about how to use GENERAL-
IZED RETRIEVAL to run all flexible format and fixed formats reports available in PCS. This includes
preprinting DMR's and running the QNCR.  In addition to the Generalized Retrieval Manual, the following
manuals are available on the PCS system.
    PCS Data Entry, Edit, and Update Manual - General Overview of PCS and detailed information on
    entering data into PCS. Includes documentation on PCS-ADE and PC-ENTRY.
    Edit/ Update Error Message Manual - Provides a brief explanation for each error message encountered
    during the edit or update of PCS, arranged by data type.
    Inquiry User's Guide - Describes in detail the interactive retrieval software that provides online 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.
    PCS PC Persona! Assistance Link (PAL) User's Guide - Provides information on the use of the personal
    computer to produce preformatted reports from PCS using only a few keystrokes on the microcomputer.
    Restricted Information in PCS
 Inspection Scheduling information and Referred Enforcement Action information is considered enforce-
 ment sensitive and cannot be displayed by the public.
                                                                                    Preface
-------
Revision  Code Description
The following table gives a description of the revision code used with each revision of the PCS Generalized
Manual.
REVISION7
CODE
1
DATE
04/23/96
DOCUMENT
NUMBER
PCS-GR96-1.00
DESCRIPTION
The field DMRR (DMR Received Date) and
DMDL (DMR Days Late) has been added to the
Dump Layout.
Table  0-1. Revision Summary
                                                              Revision Code Description
-------
 Contents

 Chapter 1.  Introduction  	  1-1
 1.1  PCS System Overview   	  1-1
 1.2  PCS Security and Privacy   	  1-1
 1.3  Using the Manual  	  1-1

 Chapter 2.  Data Overview   	  2-1
 2.1  Data in PCS   	  2-1
 2.2  Organization of PCS  	2-3

 Chapter 3.  Flexible Format Reports  	3-1
 3.1  Quick Look Report  	  3-1
   3.1.1  Cluster Quick Look Report	  3-1
   3.1.2  Hierarchical Quick Look Report  	  3-2
   3.1.3  Quick Look Report Type Specification and Options   	  3-6
   3.1.4  Quick Look Print Line Specification   	   3-30
   3.1.5  Quick Look Examples  	   3-3S
 3.2  Quick File Extract  	   3-48
 3.3  Seqnential File Extract   	   3-52
 3.4  Milestone Report   	   3-55
 3.5  Multiple-Report  Retrievals  	   3-57
 3.6  Statistical Base Code Features 	   3-58
   3.6.1  Definitions for Statistical Base Code Retrieval Acronyms	   3-58
   3.6.2  Retrieval Capabilities	 .  . .   3-63
   3.6.3  Retrieval Matrix  	   3-68

 Chapter 4. Fixed Format Reports  	4-1
 4.1  Facility Report	4-1
 4.2  Compliance Forecast Report  	   4-12
 4.3  Compliance Forecast With Violations Report  	   4-13
 4.4  Limitation Summary Report  	   4-14
 4.5  Limitation Summary with  Measurement Violations Report  	   4-16
 4.6  DMR Administrative Report   	   4-17
 4.7  DMR Administrative Report By Parameter  	   4-18
 4.8  DMR Summary  Report   	   4-20
 4.9  DMR Non-Receipt Report   	   4-21
 4.10 Quarterly Noncompliance Reports	   4-23
 4.11  Summary Quarterly Noncompliance Report For Managers   	   4-31
 4.12 Quarterly Noncompliance Report   	   4-34
 4.13 Selective Quarterly  Noncompliance  Report  	   4-35
 4.14 Coordinator's Quarterly Noncompliance Report  	   4-37
 4.15 Semi-Annual Statistical Summary Report   	   4-39
 4.16 Violation Recognition Report   	   4-40
 4.17 Industrial User Compliance Report   	   4-41
 4.18 POTW Implementation Compliance Report   	   4-43
 4.19 POTW Enforcement Action Summary Report	   4-45
 4.20  Pretreatment Hierarchy (PH) Report   	   4-46
   4.20.1   10-Card Selection  	   4-47
   4.20.2  20 Report Card Type	   4-48
   4.20.3  30 Sort Card  	   4-48
 4.21  Strategic Targeting Activities for Results System Moving Base Rpt  	   4-49
4.22  Administrative Penalty Order Report   	   4-52


                                                                                   Contents
-------
4.23 Quality Assurance Retrieval   	  4-54
   4.23.1 Report Description   	  4-55
   4.23.2 Generalized Retrieval Statements	  4-55
   4.23.3 Summary Section	  4-57
   4.23.4 Data Element Error Messages  	  4-58
4.24 Permit Compliance System Personal Assistance Link Extract   	  4-71
   4.24.1 Procedures For Loading PAL With Current PCS Data  	  4-72
   4.24.2 Downloading PAL from the NCC Mainframe   	  4-73
   4.24.3 Loading PAL on a PC  . . .	  4-73

Chapter 5.  Report  Creation and Processing   	  5-1
5.1 Card Images	  5-1
5.2 Report Title   	  5-1
5.3 Option Card (00-Card)   	  5-2
   5.3.1  SYNTAX=    	  5-3
   5.3.2  JOBID=   	  5-3
   5.3.3  BIN=   	  5-4
   5.3.4  RMT =   	  5-4
   5.3.5  COPIES=	  5-4
   5.3.6  PRTY =    	  5-5
   5.3.7  TIME=	  5-5
   5.3.8  GPRT=    	  5-5
   5.3.9  GDVCE=   	  5-5
   5.3.10 GRMT=   	  5-6
   5.3.11 GBOX=  	  5-6
   5.3.12 LINES=  	  5-6
   5.3.13 FORM=   	  5-6
   5.3.14 MSGLEVEL=   	  5-6
   5.3.15 MSGCLASS=   	  5-7
   5.3.16 ACCT=   	  5-7
   5.3.17 Option Card Examples  	  5-8
5.4 JCL Card (09-Card)  	  5-8
5.5 Facility Selection Statements (10-Card)   	  5-8
   5.5.1  Basic Argument   	  5-9
   5.5.2  Qualified Argument    	   5-11
   5.5.3  Comparison Argument	   5-13
   5.5.4  "OR" Statement   	   5-15
5.6 Report Type (20-Card)   	   5-15
5.7 Report Order (30-Card)    	   5-16
   5.7.1  Sorting Capabilities for Various PCS Reports   	   5-18
5.8 Quick Look Display/Selection Statements (40-Card)  	   5-19
5.9 Restricted Display Criteria Statements  	   5-19
5.10 Milestone Display/Selection Statements (50-Card)	   5-20
5.11 Quick File Extract Display/Selection Statements (60-Card)    	   5-20
5.12 Retrieval Selection Efficiency Considerations  	   5-21
5.13 Entering the Retrieval Cards into the Computer  	   5-22
   5.13.1  Accessing the NCC - IBM Computer System	   5-22
   5.13.2 Using TSO   	   5-22
5.14 Understanding the Generalized Retrieval Operation  	   5-23
5.15 Viewing the Generalized Retrieval Output    	   5-23

Chapter 6.  DMR Preprint and Mailing Label Processing	6-1
6.1 DMR Preprint  	  6-1
   6.1.1  Two-Step DMR Creation  	  6-2
   6.1.2  One-Step DMR Creation	  6-4

     Permit Compliance System:  Generalized Retrieval Manual
-------
 6.2  Mailing Labels  	6-6
 6.3  Processing DMRs and Mailing Labels   	  6-12
   6.3.1 PCSADMR  	  6-13
   6.3.2 PCSPDMR  	  6-13
   6.3.3 PCSADMRL  	  6-14
   6.3.4 PCSPDMRL  	  6-16
   6.3.5 PCSALBL   	  6-17
   6.3.6 PCSALBLA   	  6-18
   6.3.7 JCL for Preprinting DMRs  	  6-19

 Chapter 7.  PCS Graphics  	7-1
 7.1 Effluent Data Statistics (EDS)   	  7-1
   7.1.1 EDS General Format   	.7-1
 7.2 Management Graphics Package   	  7-19
   7.2.1 Management Graphics General Format  	  7-20
   7.2.2 Displaying Graphs Online  	  7-21

 Appendix A. Data Element Lists  	  A-1
 A.1  Sorted by FILE and DATA ELEMENT NAME   	  A-2
 A.2  Sorted by FILE and DESCRIPTIVE HEADING  	A-34

 Appendix B. Generalized Retrieval Error Messages  	B-1

 Appendix C. Telephone Numbers    	  C-l

 Appendix D. Sequential  File Extract - File Layout   	  D-l

 Appendix E. Ready Reference Guide  	E-1

 Appendix F. PCS User Docmentation Comment Form   	F-1

Index  	  X-l
                                                                                 Contents
-------
Figures
  2-1.   PCS Data Structure   	2-3
  3-1.   Single Family Cluster Quick Look Report  	3-1
  3-2.   Multi-Family Cluster Quick Look Report  	3-2
  3-3.   Hierarchical Quick Look Report for the Compliance Family  	3-3
  3-4.   Hierarchical Quick Look Report for the Effluent Family	3-4
  3-5.   Hierarchical Quick Look Report for the Inspection Family   	3-5
  3-6.   Hierarchical Quick Look Report for the Enforcement Action Family  	3-6
  3-7.   Quick Look Report "HEADERS = SHORT" Option  	3-7
  3-8.   Quick Look Report "HEADERS = LONG" Option   	3-8
  3-9.   Quick Look Report "HEADERS = NO" Option   	3-9
 3-10.   Quick Look Report "EXPAND = YES" Option 	  3-10
 3-11.   Quick Look Report "BREAK = NO" Option	  3-12
 3-12.   Quick Look Report "BREAK = 1" Option  	  3-12
 3-13.   Quick Look Report TOP=NO" Option   	  3-13
 3-14.   Quick Look Report "TOP= YES" Option  	  3-14
 3-15.   Quick Look Report "SKIP = 0" Option	  3-15
 3-16.   Quick Look Report "SKIP = 1" Option	  3-16
 3-17. ~ Quick Look Report 'SUPPRESS = NO" Option   	  3-17
 3-18.   Quick Look Report "SUPPRESS = YES" Option  	  3-18
 3-19.   Quick Look Report "RESTRICT = NO" Option   	  3-19
 3-20.   Quick Look Report "RESTRICT = YES" Option    	  3-20
 3-21.   Quick Look Report "GHOST=NO" Option   	  3-21
 3-22.   Quick Look Report "GHOST = YES" Option  	  3-22
 3-23.   Quick Look Report "ARCH = NO" Option  	  3-23
 3-24.   Quick Look Report "ARCH = YES" Option  	  3-24
 3-25.   Quick Look Report Without TAB" Option  	  3-25
 3-26.   Quick Look Report With TAB" Option 	'	  3-26
 3-27.   Quick Look Report Without Blank Lines   	  3-27
 3-28.   Quick Look Report With Blank Lines  	  3-28
 3-29.   Quick Look Report With "Last" Inspection Option   	  3-29
 3-30.   Pretreatment Hierarchy Quick Look Report  	  3-36
 3-31.   Single Line Quick Look Report   	  3-39
 3-32.   Cluster Quick  Look Report    	  3-41
 3-33.   Hierarchical Quick Look Report - Effluent	  3-43
 3-34.   Quick Look Report Using Qualifying Argument   	  3-45
 3-35.   Single Line Quick Look Report with Absent Logical  Operator  	  3-46
 3-36.   Quick Look Report Using the Comparison Argument  	  3-47
 3-37.   Quick Look Report with Expanded Data Values   	  3-48
 3-38.   Quick File Execution Summary   	  3-52
 3-39.   Milestone Report   . . . .'	  3-57
 4-1.   Facility Report - Permit Facility   	4-2
 4-2.   Facility Report - Permit Events   	4-3
 4-3.   Facility Report - Inspections  	4-3
 4-4.   Facility Report - Inspection Scheduling	4-4
 4-5.   Facility Report - Pretreatment Inspection/Audit Data (part 1)   	4-5
 4-6.   Facility Report - Pretreatment Inspection/Audit Data (part 2)   	4-6
 4-7.   Facility Report - Compliance Schedule Data    	4-7
 4-8.  Facility Report - Pipe Schedule Data  	4-8
 4-9.  Facility Report - Parameter Limits Data  	4-9
4-10.  Facility Report - Measurement Violations Data  	  4-10
4-11.  Facility Report - Enforcement Action Data   	  4-11


                                                                                  Figures  '•'
-------
4-12.   Facility Report - Evidentiary Hearing Data   	  4-11
4-13.   Facility Report - Grants Data   	  4-12
4-14.   Facility Report - Pretreatment Performance Summary Data  	  4-12
4-15.   Compliance Forecast Report  	  4-13
4-16.   Compliance Forecast with Violations Report   	  4-14
4-17.   I .imitation Summary Report  	  4-15
4-18.   Limitation Summary with Measurements   	  4-17
4-19.   DMR Administrative Report	  4-18
4-20.   DMR Administrative Report by Parameter   	  4-20
4-21.   DMR Summary Report   	  4-21
4-22.   DMR Non-Receipt Report   	  4-23
4-23.   Quarterly Noncompliance Report  .	  4-24
4-24.   Managers Quarterly Non-compliance Report   	  4-32
4-25.   Selective Quarterly Noncompliance Report   	  4-36
4-26.   Coordinator's QNCR  	  4-37
4-27.   Semi-Annual Statistical Summary Report   	  4-40
4-28.   Violations Recognition Report	 .  4-41
4-29.   Industrial User Compliance  Report   	  4-42
4-30.   POTW Implementation Compliance Report	  4-44
4-31.   POTW Enforcement Action Summary Report   	  4-45
4-32.   Pretreatment Hierarchy Report    	  4-47
4-33.   STARS Moving Base Report	  4-50
4-34.   Administrative Penalty Retrieval Report  	  4-54
4-35.   PAL Retrieval Report  	  4-72
 5-1.   PCS Retrieval Request Edit Report Page   	  5-24
 5-2.   PCS Mailing Labels Report Summary   	  5-24
 5-3.   PCS Retrieval Dump File Names Report   	   5-25
 6-1.   Sample Preprinted DMR Form   	 6-1
 6-2.   DMRS Printed List	 6-3
 6-3.   PCS Mailing Labels Report   	6-7
 6-4.   Mailing Label With Cognizant Official   	 6-8
 6-5.   Mailing Labels Without Cognizant Official  .	 6-9
 6-6.   Mailing Labels (SIZE= 1)  	   6-10
 6-7.   Mailing Labels (SIZE = 3)  	   6-11
 6-8.   Mailing Labels (SIZE = 5)  	   6-11
 6-9.   Mailing Labels (SIZE = 7)  	   6-12
 7-1.   EDS Report Type A, Option AB	 7-2
 7-2.   EDS Report Type A, Option AG  	 7-3
 7-3.   EDS Report Type B, Option HS  	 7-5
 7-4.   EDS Report Type B, Option GS  	 7-6
 7-5.   EDS Report Type B, Option WC  	 7-7
 7-6.   EDS Report Type C, Option CO  	 7-9
 7-7.   EDS Report Type C, Option CF  	   7-10
 7-8.   EDS Report Type C, Option CT	   7-11
 7-9.   EDS Miscellaneous, Option  FL   	   7-12
7-10.   EDS Miscellaneous, Option  BS    	   7-13
    Permit Compliance System:  Generalized Retrieval Manual
-------
Tables


  0-1.  Revision Summary   	  v
  2-1.  PCS Data Types  	  2-1
  3-1.  Statistical Base Code Retrieval Matrix   	  3-68
  4-1.  Effluent violations selected for the QNCR with VTYP = E    	  4-25
  4-2.  Compliance Schedule violations selected for the QNCR with VTYP = C   	  4-26
  4-3.  Single Event violations selected for the QNCR with VTYP = S   	  4-27
  4-4.  QNCR Regulations   	  4-30
  5-1.  Option Card Parameters    	  5-2
  5-2.  Valid sorting for various report formats	  5-18
  5-3.  Optional/Required Display Card Types	  5-19
  6-1.  Special Forms Codes   	  6-15
  7-1.  EDS Valid Values and Options	  7-18
  7-2.  TSO Commands to display Effluent Data Statistic graphs online   	  7-18
  B-l.  Generalized Retrieval Error Messages  	B-2
                                                                                    Tables
-------
 Permit Compliance System
Edit/Update Error Messages
  Document Number PCS-EM93-1.01


          June 21. 1993
       PCS USER SUPPORT
          202/475-8529
        U.S. EPA (EN-338)
          401 M. St. SW
      Washington, DC  20460
-------
Preface

The Permit Compliance'System (PCS) is a database management system that supports the NPDES regu-
lations.  The system is available to registered users in State and EPA Regions through the National Com-
puter Center in North Carolina.

T"he Edit/Update Error Messages Manual is designed to explain error messages encountered during use of tb.£
PCS-ADE, PC-Entry, or batch format data entry, or during the calculation of Reportable Non-Compliance
(RNC) and the format of Edit and Update Audit reports.  The manual includes the error message, the corre-
sponding acronym (where applicable), the error number, and a brief explanation for the cause of the error.
In addition to the Edit/Update Error Messages Manual, the following manuals are available on the PCS
system.

    Data Entry, Edit,  and Update Manual - General overview of PCS and detailed information on entering
    data into PCS.  Includes documentation on PCS-ADE and PC-Entry.

    PCS Generalized Retrieval Manual - Describes in detail the operation of the batch retrieval system for
    PCS.  Complete information is provided on the flexible format  and fixed format reports that are avail-
    able as well as examples of each.

    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. Tables that describe all of the valid codes in PCS are included as well,  database.

    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.

    PAL User's Guide -  Describes in detail the microcomputer retrieval software that provides managers with
    access to specific PCS summary data.
                                                                                      Preface
-------
Revision  Code Description
The following table gives a description of the revision code used with each revision of the PCS Data Entry,
Edit, and Update Error Messages.


\  REVISION  j   DATE    !   DOCUMENT   !               DESCRIPTION
!    CODE   I            ;     NUMBER
                06/21/93   j  PCS-EM93-1.01   j Error messages added for the Statistical Base Code
                         I                  ! Enhancement.
Table  0-1. Revision Summary
                                                                Revision Code Description
-------
 Contents

 Chapter 1. General Information   	  1-1
 1.1 Error Message Categories  	  1-1
 1.2 Definition of Fatal, Warning, and Informational Messages   	  1-2
 1.3 Description of information provided on Error Messages  	  1-2

 Chapter 2. Compliance Schedule Error Messages   	  2-1

 Chapter 3. Compliance Schedule Violation Error Messages   	  3-1

 Chapter 4. Enforcement Action Error Messages   	4-1

 Chapter 5. Evidentiary Hearing Error Messages   ....'.	  5-1

 Chapter 6. Enforcement Action Key Error Messages   	  6-1

 Chapter 7. Grant Error Messages   	  7-1

 Chapter 8. Inspection Audit Error Messages   	  8-1

 Chapter 9. Inspection Error Messages	  9-1

 Chapter 10.  Inspection Scheduling Error Messages	  10-1

 Chapter 11.  Measurement/Violation Error Messages   	  11-1

 Chapter 12.  Permit Event Error Messages  	  12-1

 Chapter 13.  Permit Facility Error Messages   	  13-1

 Chapter 14.  Parameter Limits Error Messages  	  14-1

 Chapter 15.  Pipe Schedule Error Messages  	  15-1

Chapter 16.  Pretreatment Performance Summary Error Messages   	  16-1

Chapter 17.  Single Event Violation Messages   	  17-1

Chapter 18.  Table Update Error Messages	  18-1

Chapter 19.  Undefined Data Type Error Messages   	  19-1

Chapter 20.  PCS User Docmentation Comment Form   	  20-1
                                                                                      Contents
-------
Tables


  0-1.   Revision Summary    	   v
  1-1.   Error Number Levels   	  1-2
  1-2.   Format of Error Message Descriptions   	  1-2
  2-1.   Error Messages  	  2-
  3-1.   Error Messages  	3-
  4-1.   Error Messages  	^-
  5-1.   Error Messages  	  5-
  6-1.   Error Messages  	6-
  7-1.   Error Messages  	7-1
  8-1.   Error Messages  	  8-1
  9-1.   Error Messages  	9-1
 10-1.   Error Messages  	   1C-1
 11-1.   Error Messages  	   il-1
 12-1.   Error Messages  	   12-1
 13-1.   Error Messages  	   13-1
 14-1.   Error Messages  	   !4-l
 15-1.   Error Messages  	   15-1
 16-1.   Error Messages  	   16-1
 17-1.   Error Messages  	   17-1
 18-1.   Error Messages  	   18-1
 19-1.   Error Messages  	   19-1
                                                                                         Tables
-------
                                                                    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
Permit Compliance System (PCS) Data Element Dictionary (updated 6/2/97); PCS Codes and
Descriptions Manual (updated 5/5/97)
-------
Permit Compliance System
  Data Element Dictionary
  Document Number PCS-DD97-1.00
         June 02. 1997
       PCS USER SUPPORT
          202/564-7277
    U.S. EPA - PCS User Support
        Mail Code - 2222A
        401 M Street, SW
      Washington, DC  20460
-------
 Revision  Code Description
The following table gives a description of the revision code used with each revision of the PCS Daia Eiemem
Diciionan.
  REVISION
    CODE
DATE
DOCUMENT
  NUMBER
DESCRIPTION
                06/02.;97
            PCS-DD97-1.00
                 The WENDB Cross Reference has been updated
                 with this release of the Data Element Dictionary.
                 This includes WENDB for Sludae.
                06/02 ;97
           PCS-DD97-1.00
                 The DMR Received Date (DMRR) field has been
                 updated.
                 The DMR = Days Late (DMDL) field has been
                 added.

                 The DMR Late Indicator (DMRL) field has been
                 deleted.
Table  0-1. Revision Summary
                                                                  Revision Code Description
-------
Contents





Chapter 1. OVERMEW   	  1-1




Chapter 2. FORMAT FOR DATA ELEMENT ENTRIES  	  2-1




Chapter 3. DATA ELEMENT ENTRIES  	3-1




Chapter 4. GLOSSARY   	4-1




Appendix A.  PCS User Docmentation Comment Form  	   A-l




Appendix B.  PCS Cross Reference Listings  	B-1




PCS Cross-Reference   	B-2
                                                                         Content
-------
   Permit Compliance System
Codes and Descriptions Manual
     Document Number PCS-CD97-1.01


            May 8, 1997
         PCS USER SUPPORT
            202/564-7277
      U.S. EPA - PCS User Support
          Mail Code - 2222A
          401 M Street, SW
        Washington, DC 20460
-------
 Revision Code  Description
 The following table gives a description of the revision code used with each revision of the PCS Codes and
 Descriptions Manual.
   REVISION      DATE
     CODE    !
 DOCUMENT
  NUMBER
               DESCRIPTION
                 05 '08/97
PCS-CD97-1.01
Table 152 STORET Group Category has been
added.
Table 153 SNC Group Category has been added.
Table 154 Parameter Major Group has been
added.
Table 156 Parameter Minor Group has been
added.
Table 157 Biological Test has been added.
Table 730 Sludge Use Option has been added.
Table 740 Sludge Class Facility Indicator has been
added.
Table 750 Land Reuse Option has been added.
Table 760 Crop Class has been added.
Table 770 Crop Type has been added.
Table 780 Outfall Type has been added.
Table 790 Sludse Indicator has been added.
Table  0-1. Revision Summary
                                                                    Revision Code Description
-------
Contents


Chapter 1. PCS Code and Description Tables  	
1.1  Instructions for Obtaining Tables  	
  1.1.1  Printing this  Manual  	   1-1
  1.1.2  Printing SELECTED Tables  	   i-1
1.2  Code and  Description Tables   	   !-3
                                                                                Contents
-------
                                                                 II.C.4.
"NPDES Self-Monitoring System User Guide", dated January 1985.   Table of
Contents only.
-------
-------
      NPDES SELF-MONITORING SYSTEM

               USER GUIDE
            Office of Water
Office of Water Enforcement and Permits
              January 1985
  U.S. Environmental Protection Agency
                 EN-338
           401 M Street S.W.
        Washington, D.'C.  20460 ••
-------
NPDES
Self-Monitoring  System
  !ser Guide
Contents                                        	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 (DMRs)                          10
   Discharge Monitoring Report - Instructions for Completion       14

Checklist for Self-Monitoring                                 24
     Self-Monitoring Systen User GuideIJanuary
-------
                                                                 II.C.5.
"Release and Description of Significant Violator Lists", dated March 8,
1984.
-------
-------
             I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             WASHINGTON. D.C. 20460
!\ /  - >,  C
IV.      i                     MAR  8
                                                                orf ICE of
                                                                 fMfNI AND
                                                             COMPUANC.t
       MEMORANDUM

       SUBJECT:  Release and Description of "Significant Violator" Lists

       FROM:     Gerald A. Bryan, DirectorJtyjffl• »*$
                 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 th.ese 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."
                                                                   so
                                                                    I
                                                                   r«o
-------
       OFFICE OF ENFORCEMENT  AND  COMPLIANCE MONITORING
Principal Regional Enforcement  Contacts

Region
I
II
III
IV
V

VI
VII
VIII
IX
X

Name
Paul Keough
Doug Blazey
Stan Laskovski
John (Alex) Little
Alan Levin
Dave Ullrich
Dick Whittington
Wi 1 liam Rice
Kerry Clough
John Wise
Ed Coate

Title
Deputy Regional Administrator
Regional Counsel
Deputy Regional Administrator
Deputy Regional Administrator
Deputy Regional Administrator
Deputy Regional Counsel
Regional Administrator
Deputy Regional Administrator
Chief of Staff
Deputy Regional Administrator
Deputy Regional Administrator
Te lephone
Number
223-7210
264-1018
597-9812
257-4727
353-2000
353-2094
729-2600
758-5495
327-3895
454-8153
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:  (.^Associate 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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     \      UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     *                     WASHINGTON. D.C. 20460

                                    '
                                OCT311985

                                                          OFFICE OF
                                                           WATER .

MEMORANDUM

SUBJECT:  Permit Compliance System  (PCS) Policy Statement

FROM:     Lawrence J. Jensen                         ^
          Assistant Administrator for Water  (WH-556)\J|*

TO:       Regional Water Management Division Directors
          Regions I - X

      I am pleased to issue the attached policy statement on the
Permit Compliance System (PCS).' This policy statement-represents
an important step in the continuing effort to support a reliable
and effective automated information system for the National Pollutant
Discharge Elimination System  (NPDES)  program.

      PCS "is the national data base for the NPDES program.  It
serves as the primary source of NPDES information for EPA, NPDES
States, Congressr and the public.  The use and suoport 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 resDonsibilities central to PCS'  ability to contribute to the
overall integrity of the NPDES program and the achievement of our
long-term environmental goals.  One of the requirements is to have
Regions and States enter all required data into PCS by September 30,
1986  (see Attachment 1 of the PCS Policy Statement).  While, the aim
of the policy is a consistent approach across Regional and State
NPDES programs, it retains flexibility for Regions and States to
tailor agreements to the unique conditions of each State.

     The PCS Policy Statement is effective immediately.  The Office
of Water Enforcement and Permits will monitor implementation of the
policy statement and issue special instructions as necessary.
Regional Water Management Division Directors and their State coun-
terparts are responsible for ensuring that their staffs receive suf-
ficient support to apply the principles of the policy to their PCS
activities.      .

      I look forward to a strong commitment to this policy statement
by EPA and State NPDES programs.  You can be assured of my full
support as EPA and the States move-forward with its implementation.

Attachments

cc: Administrator
    Deputy Administrator
    State Directors
    PCS Steering Committee
    PCS Users Group
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            PERMIT COMPLIANCE SYSTEM POLICY STATEMENT
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

STATEMENT OF POLICY

     It  is EPA policy that the Permit Compliance System  (PCS) shall
be the national data base for the National Pollutant Discharge
Elimination System (NPDES) program.  All EPA Regions must use PCS
directly, and all NPDES States must either use PCS directly or
develop  and maintain an interface.

     As  our primary data source/ PCS will promote national consis-
tency and uniformity in permit and compliance evaluation.  To
achieve  national consistency and uniformity in the NPDES program,
the required data in PCS must be complete and accurate.  Facility,
permits  (i.e., events and limits), measurement, inspection, com-
pliance  schedule, and enforcement action data are required. These
required data elements are further defined in Attachments 1 and 2.
They comprise the Water Enforcement National Data Base (WENDB)
which has'been redefined as the core of information necessary to
enable PCS to function as a useful operational and management tool
and so that PCS can be used to conduct oversight of the effective-
ness of  the NPDES program.                                •     .

     All required data for NPDES and non-NPDES States must be
entered  into PCS by September 30, 1986 and maintained regularly
thereafter.  This will require Regions and States to start entering
data as  early as possible, and not wait until late FY 1986.

     By  the end of FY 1986, direct users of PCS shall establish,
with Office of Water Enforcement and Permits (OWEP) assistance,
a Quality Assurance program for data in PCS.  The program shall
define:

     * monthly measurement of the level of data entered;

     • appropriate time frames to ensure that data are entered
       in PCS in a timely manner; and

     * 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.
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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:

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

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

     • PCS will encourage a proper EPA/State oversight role by iden-
       tifying all major permittee violators.

     • PCS will offer all levels of government an  operational and
       management tool for tracking permit issuance, compliance,
       and enforcement actions.

     This PCS Policy Statement is a result of the  Steering 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.

     0 NPDES permits shall be enforceable and tracked for compli-
       ance using PCS.  The Office of Hater 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 HENDB 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 /-and -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.

     • EPA Regions should coordinate with their respective States
       to develop strategies that describe each State's plans to
       either use PCS directly or develop an interface.  These
       strategies should include the rationale for selecting one
       of. these methods of data entry into PCS, an outline of all
       requirements necessary for implementing the selected
       method, the mechanisms to be used to supply sufficient
'       resources-, and a schedule for attainment not to exceed
       September 30, 1986.  If a State is a current user of PCS
       via one of these methods, the strategy should describe its
       needs for enhancing its PCS usage or improving its PCS
       interface, the mechanisms to be. used to supply sufficient
       resources , and a schedule for attainment not to exceed
       September 30, 1986.

     • 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

     Off ice of Water Enforcement and Permits;  It is OWEP's full
responsibility to maintain the structure (i.e . ,. the computer
software) of PCS and to operate the system.  OWEP will continue
to support time-sharing funds needs, training!, and the necessary
resources to continue the operation of PCS.  OWEP will work with
the EPA Regions 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.
-------
                              - 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:

     • A State Automated Data Processing (ADP) interface can be
       developed.  It is the EPA Region's responsibility to work
       with the NPDES State to develop an effective State ADP
       interface.  The State, however, should take the lead in
       developing the interface and work closely with the Region
       to ensure the interface is effective.  It should be realized
       that system interfaces are often troublesome and unwieldy;
       they are often ineffective and limit the States1 flexibility
       to change their systems quickly to meet management needs.
       In the event a State ADP interface is developed, there
       must be formal agreement that the State will operate the
       interface, maintain the interface software, and be fully
       responsible for making any changes to the interface based
       on changes made to its automated data base.  This will
       ensure that the NPDES State will be held responsible for
       system compatibility.   If the State does not accept full
       responsibility with system, compatibility, then changes
       must not be made to the State system without the prior
       knowledge of EPA.  The State is responsible for ensuring
       that the data are transferred to PCS in a timely manner,
       accurately, and completely.  Interfaces must be developed
       and maintained so that they operate with maximum efficiency
       all of the time.

     •  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

                                .                        •     4- -:-
-------
                              - 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 S106 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.
                                                .\
     • 5106 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'  ^                        Assistant Administrator for Water
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                          ATTACHMENT 1
              REQUIRED DATA TO BE ENTERED INTO PCS
Information Type1

Permit Facility Data

Permit Event Data

Inspection Data

Parameter Limits and
 Pipe Schedule Data

Compliance Schedule
 Data

DMR Measurement Data

Significant Noncompliance
 Flag

Enforcement Action Data
 (Enforcement Action Data,
 Compliance Schedule Data,
 and Interim Limits Data
 from all active formal
 enforcement actions)

Enforcement Action Data
 (Type Action, ENAC;
 Issue Date, ENDT; and
 Date Compliance Required,
 ERDT; from all active
 formal enforcement
 actions)

Pretreatment Approval2

National Municipal Policy
 Data3
X

X
X

X
Minor 92-SOOs

       X

       X

       X
       X

       X
Other Minors

       X

       X

       X
       X

       X
     each of the categories listed in this chart, the Information
 Type is the set of core data elements listed in Attachment 2.

?Pretreatment Program Required Indicator, PRET; one data element.

3All required data as described in May 16, 1965 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 (WEKDB)  ELEMENTS
       Data Element Name

 COMMON KEY

 NPDES Number

 COMPLIANCE SCHEDULE RECORD
                             V
 Compliance Schedule Number
 Data Source Code
 Compliance Actual Date
 Compliance Report Received Date
 Compliance Schedule Date
 Compliance Schedule Event Code

 COMPLIANCE VIOLATION RECORD

•Compliance Violation Date
'Violation Compliance Event Code
* Compliance Violation Code
•Significant Non-Compliance Code
  (Compliance)
•Significant Non-Compliance Date
  (Compliance)
•Violation Compliance Schedule
  Number
•violation Data Sour.ce 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
                                           DISC
                                           EVNT
                                           CVOT
                                           CVEV
                                           CVIO
                                           SNCC

                                           SNDC

                                           VCSN

                                           VDCD



                                           EADR

                                           ECM1
                                           ECM2
                                           ECM3
                                           ECM4
                                           ECM5
                                           ECVC

                                           ECVD

                                           EMOD

                                           ENAC
                                           ENDT
                                           ENST
                                           ERDT

                                           ESDT
                                           ESEA
                                           EVCD
                                           EVDS
• 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 Concentration Average
 Measurement Concentration Minimum
 Measurement Concentration Maximum
 Measurement Quantity Average
 Measurement Quantity Maximum
 Violation Date (Measurement)
 No Discharge Indicator
'Significant Non-Compliance Code
  (Measurement)
'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
                               MVOT
                               NODI
                               SNCE

                               SNDE

                               VDRD
                               VDSC
                               VMLO
                               VPRM
                               COLS
                               CONP
                               ELED
                               ELSD
                               LCAV
                               LCMN
                               LCMX
                               LCUC
                               LQAV
-------
                         WENDB ELEMENTS
                          (Continued)

     Data Element Name                    Acronym

Quantity Maximum Limit                     LOMX
Quantity Unit Code                         LQUC
Limit Type - Alphabetic                    LTYP
Monitoring Location                        MLOC
Modification Number                        MODN
Limit Discharge Number                     PLDS
Limit Report Designator                    PLRD
STORET Parameter Code                      PRAM
Season Number                              SCAN
Statistical Base Code                      STAT

PERMIT EVENT RECORD

Permit Tracking Actual Date                PTAC
Permit Tracking Event Code                 PTEV

PERMIT FACILITY RECORD

River Basin                                BAS6
City Code                                  CITY
County Code                                CNTY
Type Permit Issued - EPA/State             EPST
Federal Grant Indicator   ,                 FDGR
Final Limits Indicator      .               FLIM
Average Design Flow                        FLOW
Facility Name Long                         FNML
Facility Inactive Code                     IACC'
Major Discharge Indicator (Entered         MADI
 by EPA Headquarters)
Pretreatment Program Required              PRET
 Indicator
SIC Code                                   SIC2
Type Ownership                             TYPO
National Municipal Policy                  RDF6
 Tracking Indicator
Significant Noncompliance Flag for         (To Be Created)
 P.L. 92-500 Minor Facilities

PIPE SCHEDULE RECORD

Report Designator                          DRID
Discharge Number                           DSCH
Final Limits End Date                      FLED
Final Limits Start Date                .    FLSD  .
Interim Limits End Date                    MLED
Interim Limits Start Date         .         MLSD
Initial Limits End Date            -      .  ILED
Initial Limits Start Date                  ILSD
Number of Units in Report Period           NRPU
Number of Units in Submission Period -     NSUN
 EPA'   '                        .
Number of Units in Submission Period -     NSUS
 State
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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
PI AC
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 elements
          »•'  9   data elements
           120  WENDB elements
-------
-------
/"At
ijjgji
 ^kf  \^^
  ^ moi^
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                              WASHINGTON. D.C. 20*60



                            MAR 231988

                                                            off ten of
EEMORANDOM                                                   *ATt"

SUBJECT:  Update of PCS Policy Statement/WENDB Data Elements
                          ''               f*
PROM:     J. William  Jordan, Director    &
          Enforcement Division (EN-338) P*

TO:       Regional Water Management Division Directors
            9                          .

     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 (FTS-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

c.ct Jim Elder      •
    Glenn Unterberger
    Martha Prothro
    Regional compliance Branch Chiefs
   . Regional PCS Contacts
   . Regional Pretreatment Coordinators
-------
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                                 \PPENDIX 8

                    REQPIRED DATA TO BE ENTERED INTO PCS

                                         Minor4
  informatrori^Type*            Manors    95-500*s

  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           X4         . x*

 National Municipal Policy      X           X           X
  Data*

 Single Event Violation         X           X4          X4
  Data

 Pretreatnent 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, sincrle event
violation data, pretreatment compliance inspection (PCD/audit, and
pretreatment performance summary.
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-------
                                        APPENDIX €
                  WATER ENFORCEMENT NATIONAL DATA BASE (WENDS) ELEMENTS


               data Element Name                                         Acronym

  COMMON KEY                        .              .

  NPDES Number

  COMPLIANCE SCHEDULE RECORD                                   .

  Compliance Schedule Actual Date
  compliance Schedule Date                         .                      DISC
  Compliance schedule Event Code                           .        ,      EVMT
  Conpliance schedule Pile Hunter                          '              CSFM
  Compliance schedule Number                                             CSCH
  Compliance Schedule Report Received Date                               DTRC
  Compliance schedule User Data Element2                                 HDC2
  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
  QNCR 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                     SRDC

  ENFQRCEriENT ACTION RECORD

  Enforcement Action Code (includes administrative penalty orders)2       ENAC
  Enforcement Action Comment                                             BCMT
  Enforcement Action Compliance Schedule Violation Code                  ECVC
  Enforcement Action Compliance Schedule Number                          EVSN
  Enforcement Action Compliance schedule Violation Date                  ECVD
  Enforcement Action Data Source Code                                    EVCD
  Enforcement Action Date                                                ENDT
NOTE:  See last page for listing of footnotes
                                         - 1 -
-------
                                     APPENDIX C

                                   WENDB ETPMCTTTS
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                                     EWD
Enforcement Action Monitoring Location                                 EVML
Enforcement Action Parameter Code                                      EVPR
Enforcement Action Report Designator                                 '  EVRD
Enforcentent 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
Enforcemnnt Action Date - Violation Key3                               EXDT
Enforcement Action Type order Issued EPA/State Violation Key3          SKIP
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                     •          -         SHEV
Evidentiary Hearing Event Date                                    .    EHDT

INSPKCTIOH RECORD

Inspection Date                                                        DTXM
Inspector Code                                                         INSP
Inspection Type                                                        TYPI
Inspection Comments (First three characters for                        ICON
  Industrial user pretreatment inspections)
     See List page for listing of footnotes
                                       - 2 -
-------
                                       APPENDIX C

                                    WENDB
              Data Element Name                                         acronym

 MEASUREMENT VIOLATION RECORD          .                       .

 Measurement/Violation concentration Average                            HCAV-
 Measurement/Violation Concentration Minimum                            new
 Measurement/Violation concentration Maximum                            MCMX
 Measurement/Violation Quantity Average                                 NQAV
 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                                VDRD
 No Discharge  indicator                                                 NODI
 QNCR Measurement Violation Detection code1                             SNCE
 QNCR Measurement Violation Detection Date1                             SNDE
 QNCR Measurement Violation Resolution Code1                            SRCE
 QNCR Measurement Violation Resolution Date1                            SRDE

 PARAMETER LIMITS RECORD            .

   ange of Limit Status          .            •                         COLS
   ncentration Average Limit                                            LCAV
   centration Maximum Limit                                            LCMX
  ..tcentration Minimum Limit                                            LCMN
 Concentration Unit Code                                                LCDC
 Contested Parameter Indicator                                          CONP
 Limit Discharge Number                                                 PLDS
 Limit Pile Number                                                      PLFN
 Limit Report  Designator                                                PLRD
 Limit Type -  Alphabetic                                                LTXP
 Modification Number                                                    MOON . .
 Modification Period End Data                                           FLED .
 Modification Period start Date     -                                   ELSD
 Monitoring Location                                                    MLOC
 Parameter Code                                                         PRAM
 Quantity Average Limit                                                 LQAV
Quantity Maximum Lifldt                                                 LOMX
Quantity Unit code                                                     LQOC
 Season Number                                                         SEAN
 Statistical Base Code                                                  STAT
NOTE:  See last page for listing of footnotes


                                        - 3 -
-------
                                      APPENDIX C
                                     •

                                    WENDB
 PJ5BMCT EVENT RECORD

 Permit Trackina Actual Date                                           PTAC
 Permit Tracking Event Code5                                           PTEV

 PERMIT FACILITY RECORD

 Averaoe Design Flow                                                   FLOW
 City Code                                                             CITY
 County Code                                               •            CNTY
 Facility Inactive Code                                     .           IACC
 Facility Inactive Date                                                IADT
 Facility Name Long                                                    FNML
 Federal Grant Indicator                                               PDGR
 Final Limits Indicator                   .                             FLIM
 Major Discharqe Indicator (Entered by EPA Headouarters)                MADI
 NMP Final Schedule6                                                   HPSC
 NMP Financial Status6                                                 NPFF
 NMP Schedule Quarter6                                                 NPSQ
 Pretreatment Program Reouired Indicator                      •         PRET
 QNCR Status Code, Current Year (Manual)7                               CYMS
 Reissuance control Indicator                                          RON
 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                                               PLSD
 Initial Limits End Date                                             .  ILED
 Initial Limits Start Date                                             ILSD
 Initial Report Date                                                   STOP
 Initial Submission Date - EPA                                         STSD
 Initial Submission Date - State       .                                STSS
 Interim Limits End Date                                               MLED
 Interim Limits Start Date                                             MLSD
 Number of Units in Reporting Period                                    NRPO
 Number of Units in Submission Period  - EPA                             NSUN
 Nuntoer of units in Submission Period  - State                          NSUS
 NOTE:  . See last page for listing of  footnotes


                                        -  4 -
-------
                                      APPENDIX C

                                    WENDB ELEMENTS

             Data Element Name                                 •        Acronym

 PIPE SCHEDDLE RECORD (continued)

 Pipe Inactive Code                                                     PIAC
 Pipe Inactive Date                                                     PIDT
 Report Designator                                                      DRID
 Reporting units                                                        RENO
 Submission Unit - EPA                                                  SUUN
 Submission Unit - State                                                SUUS

 SINGLE EVENT VIOLATIONS DATA ELEMENTS*

 Single Event Violation code                                            SVCD
 Single Event Violation Date                                            SVDT
 QNCR Single Event Violation RNC Detection Code                         SNCS
 QNCR Single Event Violation RNC Detection Date                         SNDS
 QNCR Single Event Violation RNC Resolution code                        SRCS
 QNCR Single Event Violation RNC Resolution Date                        SRDS

 PRETREATMENT PERMITS AND ENFORCEMENT TRACKING SYSTEM (PPETS)

 SOURCE - PRETREATMENT COMPLIANCE INSPECTION (PCI)/AODIT

 Adoption of Technically-based Local Limits                             ADLL
 Categorical Industrial Users             ,                              cms
 technical Evaluation for Local Limits                                  EVLL
 SIUS in SNC with Self-Monitor ing                       v.                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        PTTM
 Significant Industrial Users  *                                        SIUS
 SIUS in SNC with Self-Monitoring and Not Inspected or Sampled     '     SNIN
 Pa/Audit Date                                                         DTIA

 SOURCE - fKL'IKEATMENT PERFORMANCE SOM1ARY

 Formal Enforcement Actions Excluding Civil and Criminal
  Judicial Suits                                                       FENP
 Industrial Users From Which Penalties Have Been Collected              IUPN
 Civil or Criminal Suits Piled Against SIUS                             JUDI
 SIUS in SNC with Pretreatment Compliance Scheduled                     SSNC •
SIUS with Significant Violations Published in Newspaper                SVPU
Pretreatment Performance Summary Start Date                          .  PSSD
Pretreatment Performance Summary End Date                              PSED
NOTE:  See last page for listing of footnotes


                                        - 5 -
-------
                                     Listing of Footnotes
1.  These data elements are automatically generated by PCS unless the user wishes'to
    enter them manually.

2.  This data element is required for both informal and formal enforcement action codes
    (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) required evidentiary hearing event codes (when applicable).
    They are as follows:

    01099 Date Granted                             10099 Date ALT Decision Rendered
    06099 Date Rearing 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              P7S99  316 (a) Variance
    P4099 Permit Issued            .   P7199 301 (c) Variance   P7699  316 (b) Variance •
    P5099 Permit Expired              P7299 301 (g) Variance   P7799  Fundamental Differe
                                                                     Factors Variance
                                                               30099  Permit Modified
                                                                                 •
6.  These data elements are previously approved National Mur :ipal Policy (HMP)
    data elements.

7.  Reouired for P.L. 92-500 minors.
                                          - 6 -
-------
                                                                 II.C.7,
"GUIDANCE FOR PREPARATION OF QUARTERLY AND SEMI-ANNUAL NONCOMPLIANCE
REPORTS", March 13, 1986, with transmittal letter.  Table of Contents.
-------
-------
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON. D.C. 20460
                            MAR 13 1986
                                                         OFF.CEOF
                                                          WATER
MEMORANDUM
SUBJECT:  Transmi ttal of the Final Quarterly Noncompl iance Report
FROM:     Rebecca W. Hanmer, Director
          Office of Water Enforcement and Permits (EN-335)

TO:       Water Management Division Directors
          'Regions I - X

     The Quarterly Noncompliance Report (QNCR) Guidance is attached
(Attachment A) in final form reflecting comments on the draft.  As
you know, we held three national training sessions to acquaint the
QNCR preparers with the new regulatory 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
QHCR.  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 QNCR 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.
-------
     One expected important .result of the QN.CR .Guid-ance .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  Infprmstion 'Act; th,es'e  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
-------
                           Table of Contents



PART 1:  QUARTERLY NONCOMPLIANCE REPORTS

   I. INTRODUCTION                                             1-1

  II. SUBMITTAL REQUIREMENTS                                   1-2

 III. VIOLATION OF PERMIT REQUIREMENTS                         1-9

      A. DETERMINING INSTANCES OF PERMIT
           NONCOMPLIANCE TO BE REPORTED   .                     1-9

      B. RESOLUTION OF REPORTED INSTANCES OF
           PERMIT NONCOMPLIANCE             •                   1-15

      C. FORMAT OF INSTANCES OF PERMIT NONCOMPLIANCE        .   1-16

  IV. VIOLATION OF ENFORCEMENT ORDER REQUIREMENTS              1-21

      A. DETERMINING INSTANCES OF ENFORCEMENT ORDER
           NONCOMPLIANCE TO BE REPORTED                        1-21

      B. RESOLUTION OF REPORTED INSTANCES OF
           ENFORCEMENT ORDER NONCOMPLIANCE                     1-25

      C. FORMAT OF INSTANCES OF ENFORCEMENT ORDER
           NONCOMPLIANCE                                       1-26



PART 2: SIGNIFICANT NONCOMPLIANCE

   I. INTRODUCTION                                             2-1

  II. DEFINITION                                       .        2-1

 III. EXCEPTIONS LIST                                        .  2-6



PART 3: SEMI-ANNUAL STATISTICAL SUMMARY REPORTS

    I.  INTRODUCTION                                            3-1

   II.  DETERMINING INSTANCES OF NONCOMPLIANCE TO RE REPORTED   3-1

  III.  FORMAT                                                  3-2
-------
                           LIST OF APPENDIXES
APPENDIX I   - Noncompliance to be Reported in the QNCR
               (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
-------
                                              ATTACHMENT A
           GUIDANCE FOR PREPARATION  OF  QUARTERLY
           AND SEMI-ANNUAL NONCOMPLIANCE REPORTS
(PER SECTION 123.45, CODE OF  FEDERAL REGULATIONS, TITLE 40)
-------
                            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.
-------
                             - ii -
     The regulations currently reouire the reporting of Category I



and II noncompliance by major permittees; these regulations differ



most significantly from the old ones in the areas of effluent



and schedule noncompliance.



     The major change in'the area of .effluent noncompliance is



the concept that an isolated, minor excursion may not be of



sufficient concern1to .warrant tracking on the ONGR.  Instead,



Category I effluent noncompliance is based on specifically



defined "patterns of noncompliance" which take into account the



magnitude, frequency of occurrence, and duration of the violations.



These violations are resolved through rssuance of a.formal



enforcement order or by demonstrated.compliance such that



the criteria are no longer met ffor the ""pattern of noncompliance"



or the permittee has achieved*.one complete .quarter of compliance.



     In contrast, the -.-old regulations required 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.
-------
                             - Ill  -








      The  other major  chanae  in the area  of  schedule  noncompliance



 is  the length of  the  schedule delays  that roust  be  reported.



 In  the oast,  the  NPDES  administering  agency was  reguired  to



 report violations of  schedules (other than  grant schedules)



 that  exceeded the reporting  date of the  schedule milestone by



 at  least  30  days  (generally  60 days from the  scheduled milestone



.date).  It was found, however,  that it was  often possible to



 make  up for  delays  of less than 90 days  within  the overall



 schedule.  The new  regulation reguires only the  reportina of



 schedule  violations (including grant  schedule violations) that



 exceed the scheduled  date by 90 days  or  more.



      A summary chart  of  the  noncompliance that must  be reported



 in  the QNCR  can be  found in  Appendix  I of this guidance.






 Semi-annual  Statistical  Summary



      In addition  to these changes, the new  regulation also



 establishes  the reguirements for a new report -  the  Semi-annual



 Statistical  Summary Report.   This  report was designed as  a



 complement to the QNCR as an indication  of  the amount of  effluent



 noncompliance 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
-------
                             - IV -








their monthly averaae 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 Noncomplranee Report remain




unchanged in the current regulation.






Significant Noncomnliance



     Significant Noncompliance (SNC) is a subset of Reportable



Noncompliance as defined for the QNCR.  '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 II) 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



unperroitted), and to all violations of Clean Water Act/NPDES



reguirements, 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 requirements and SNC.  Major topics throughout the

guidance include the following:


     0 QNCR reportinn reciuirements

       - Criteria for reporting noncompliance

         0 Separate criteria for reportinq instances of noncompliance
           with permit conditions and with enforcement order
           reguirements

           - 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 auantifiable" criteria later
             developed by EPA

           - Category I versus Category II does not determine priority
             for enforcement response

       - Evaluation of effluent noncompliance/compliance based on.
         performance over a period of time (pattern of 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 reguirements.


     A copy of the current (revised and carried over) reporting

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 reauired



under this section to "the Reaional Administrator, and the EPA'Region



in turn shall submit the State reports to EPA Headauarters.  When



EPA is the permit-issuing authority, the Regional Administrator



shall submit all reports reguired under this section to EPA



Headauarters.



  (a) Quarterly reports.  The Director shall submit quarterly



      narrative reports for major permittees as follows:



      (1) Format.  The report shall use the following format:



          (i) Provide a separate list of major NPDES permittee's



              :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 followina



              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 paraaraph (a)(2) of this



                  section reguires reporting.  Each listing shall




                  indicate each specific provision of paragraph (a)(2



                  (e.g., (ii)(A) thru (iii)(G)) which describes the



                  reason for reporting the violation on the quarterly



                  report.
-------
                        - Vll -






        (C)  The date(s),  and a brief description of the



            action(s)  taken by the Director to ensure



            compliance.



        (D)  The status of the instance(s)  of noncompliance



            and the date  noncompliance was resolved.



        (E)  Any details  which tend to explain or mitigate the



            instance(s)  of noncompliance.



(2)  Instances of noncompliance by 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 subseauent



        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 permittees under current enforcement  orders



            (i.e., administrative and judicial orders and



            consent decrees)  for previous  instances of



            noncomnliance must be listed in the ONCR  until



            the orders have been satisfied in full  and the



            permittee  is  in compliance with permit  conditions.
-------
                     -  Vlll  -




        Tf  the  permittee ~i"s 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 QNCR.

(ii)  Category I  noncompliance.   The  following  instances  of

     noncompliance  by major  dischargers  are Category I

     noncompliance:

     (A) Violations of  conditions  in enforcement
                                                            i
        orders  except  compliance  schedules and  reports.

     (B) Violations of  compliance  schedule  milestones

        for starting construction,  completina construction,

        and attaining  final compliance  by  90  days or  more

        from the date  of the milestone  specified in an

        enforcement  order or a  permit.

     (C) Violations of  permit effluent limits  that exceed

        the Appendix A "Criteria  for Noncompliance Reporting

        in  the  NPDES Program".

     CD) 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 noncomnliance  which must be reported as



      Category II  noncompliance 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)(P) of this section)  within 30 days
-------
                             - x -




                from the due date specified in an enforcement



                order or a permit.


            (E)  Instances when the reauired reports provided by



                the permittee are so deficient or incomplete


                as to caus.e misunderstanding by the Director and


                thus impede the review of the -status of compliance.


            (F)  Violations of n-arrative requirements (-e.g.,


                requirements to develop Spill'Prevention Control


                and Countermeasure Plans and requirements to



                implement Best Manaoement Practices), which are


                of substantial concern to the regulatory agency.


            (G)  Any other violation or group-of permit violations



                which the Director or Regional Administrator
                                                                   i

                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, according to the Federal


    fiscal year  cale'ndar, as the '£irs,t and 'third quarter 'QNCRs.


(c)  Annual reports for NPDES.


    (1)  Annual noncompliance report.  Statistical 'reports shall


        be submitted by the Director on nonmajor NPDES permittees


        indicating the total number reviewed, the number of


        noncomplying nonmajor permittees, the number of enforcement!


        actions, and the number of permit modifications extending


        compliance deadlines.  The statistical information shall
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                               - xi -


          be organized to follow the types of noncompliance 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	1August 31
                    July, August, and September....1November 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 NPDES Program


     This appendix describes the criteria for reporting violations

of NPDES permit effluent limits in the auarterly noncomnliance

report (QNCR) as specified under § 123.45 (a)(2)(ii)(c ).  Any

violation of an NPDES permit i.s a violation of  the  Clean  Water Act

(CWA) for which the permittee is liable.  .An agency's  de'cision as

to what enforcement action, if' any,^should "be "taken Jrn sirch :cas"e:s,

will be based on an analysis of facts and legal reouirements.


Violations of Permit Effluent Limits

     Cases in which violations of permit effluent limits  must be

reported depend upon the magnitude -and/or 'frequency 'of the violation,

Effluent violations should be evaluated on -a parameter-by-par.ameter

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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                               - xiii -


   a six month period.  These criteria apply to all Group I  and

   Group II pollutants.


Group I Pollutants - TRC=1.4

  Oxygen Demand

  Biochemical Oxygen Demand
  Chemical 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

  Orqanics

  All orqani.cs are Group II except -those specifd-.caLly listed under
    Group M
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                                                                    II.C.8.
"Managers' .Guide to the Permit Compliance System" June, 1986.  Table of
Contents only.                               .
-------
n
-------
                                MANAGERS'  GUIDE

                                     TO THE

                            PERMIT COMPLIANCE SYSTEM
                               APPENDICES
APPENDIX A:  Inquiry
APPENDIX B:  Selection Criteria
APPENDIX C:  Glossary
APPENDIX D:  Data Elements Lists
                            TABLE OF CONTENTS
Executive Sunnary                                                  1

1.  Introduction                                                 M

    1.1  Purpose of this Manual                                  1-1
    1.2  Manager's Role 1n Relationship to PCS             •     1-2
    1.3  Organization of this Manual                             1-2'

2.  Overview of PCS

    2.1  PCS' Current Capabilities                ,  . .          2-1
    2.2  Purposes of PCS                                         2-2
    2.3  Regional and State Participation 1n PCS                 2-3
    2.4  History of Development                                  2-4
    2.5  Future Capabilities                                     2-5
    2.6  PCS Policy Statement                                    2-6
    2.7  PCS Data Organization                                   2-6
    2.8  PCS Report Capabilities                                 2-8
                              •
3. -Management Reports                                           3-1

    3.1  Reports from INQUIRY                                  3.1-1
    3.2  General Facility Information                          3.2-1
    3.3  Permit Issuance/Relssuance           .                 3.3-1
    3.4  Evidentiary Hearings                                  3.4-1
    3.5  Compliance Schedules                                  3.5-1
    3.6  Effluent Limits                                       3.6-1
    3.7  Discharge Monitoring Report Tracking                  3.7-1
    3.8  Effluent Measurements/Violations                      3.8-1
    3.9  Inspection Tracking                                   3.9-1
    3.10 Enforcement Action Tracking                           3.10-1
    3.11 Pretreatment Program Tracking                         3.11-1
    3.12 National Municipal Policy             •                3.12-1
    3.13 Toxldty Limits                                       3.13-1
    3.14 Grants                                                3.14-1
    3.15 Strategic Planning and Management System             3.15-1
    3.16 Quality Assurance           .                          3.16-1
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                                                                  TT
"Guide to PCS Documentation"  June, 1986.   Table of contents only.
(Information only; no longer current).
-------
-------
                               GUIDE  TO PCS DOCUMENTATION

                                   Table of Contents
                                                                       Date
 I.
      Introduction
II.   PCS Overview

      e PCS Overview and Example NPDES Reports
      0 PCS Pricing Model - Executive Summary
      0 Model for Assessing Resource Reauirements  (MARQ)
        - Overview of MARQ
        - Scenario  Questions
III.  NPDES Policy

      0 PCS Policy Statenent
      0 Regional Implementation of the PCS Policy Statement
      0 water Enforcement National Data Base (WENDB)
      0 Agency Operating Guidance - FY 1985-1986

IV.   NPDES Permit Tracking - Issuance

      0 Permit Issuance Tracking
      0 Permit Tracking Event Codes
      0 Permit Tracking Event Codes
      0 Issues Related to NPDF.S 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
      0 PCS NMP Conference Call

VTI.  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 POTMs with Approved Pretreatment Proorams
      0 Pretreatment Audit Reporting Reauirements
      0 Inspections Based on DMR OA Results
                                                                        3/ 1/85
                                                                       10/31/85
                                                                       12/17/85
                                                                        2/13/84
                                                                        7/15/85
                                                                        7/31/85

                                                                        4/26/85
                                                                       11/12/85
                                                                        5/16/85

                                                                        6/  4/85
                                                                        8/29/85
                                                                        5/14/85

                                                                        8/  6/85
                                                                        8/30/85
                                                                       12/16/85
                                                                       12/17/85
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                                  Table of Contents
                                     (Continued)
VIII. Selection Criteria for Strategic Planning
      and Management Systen reports

      0 Selection criteria and example reports for SPMS
        reporting reguirements on:
         - Inspections
         - Permits
         - Evidentiary Hearings
         - National Municipal Policy

IX.   PCS Meetings

      0 Summary of PCS Management Needs Meeting (11/84)
      0 PCS Steering Committee Minutes (3/85)
      ° Minutes of the November Permit Compliance System
         (PCS) Users Group Meeting (11/84)
      0 Minutes of the April Permit Compliance System
         (PCS) Users Group Meeting (4/85)
      0 Minutes of the November Permit Compliance System
         (PCS) Users Group/Steering Committee  Meeting (11/85)
                                                                      Date
 1/14/85
 4/12/85

 2/22/85

 6/12/85

12/24/85
      PCS News
      0 Permit Compliance System Management Newsletter
      0 Permit Compliance Systen Status Report
      0 Permit Compliance System Status Report
      0 Permit Compliance System Management Status Report
      0 PCS DBMS User Newsletter #1
      0 PCS DBMS User Newsletter #2
      0 PCS DBMS User Newsletter #3
 2/28/85
 7/ 3/85
11/20/85
 5/T2/86

    6/85
  7-8/85
 9-11/85
-------
                                                                  II.C.10.
"General Record of Enforcement Actions Tracked (GREAT) Conversion to Permit
Compliance System (PCS)", dated July 24, 1987.  Supplements II.C.2.
(Conversion completed prior to January 1, 1988).
-------
-------
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           WASHINGTON. D.C. 20460
                                         24i987

                                              """          O**iC6 0*
 MEMORA::gt;M

 SUBJECT:   General P.ecsri tf Enforcement Actions Tracked
           Systea (GREAT) Conversion to Permit Compliance
           System (PCS)

 FROM:      J.  William J-prian, director
           Enforcement Division. (£X-338)

 TO:        Regional  Corrliar.ee Branch Chiefs

     To  further implement the ?CS Policy Statement,  PCS shouli
 be used,  to track EPA administrative orders issued -against KPDES
 facilities.   This *as requested  by the PCS Steering  committee
 •at the November 6-7,  1?35,  -eeting in Annapolis,  Maryland.
 The  PCS  Policy  Statement currently requires entry of enforcement
 actions  for majors  and  72-5CC .-ir.ors only, but the General
 Record of  Enforcement Actions TrackeJ (GREAT) system contains
 all  EPA administrative  enfor.enent actions (majors and minors).
 To successfully convert frc-n 5? SAT to PCS -r.e Regions should
 agree to enter  into PCS the enforcement acr:  \-:s -against all minors
 and  unpermitted facilities.  This woul'J nc-.  ;ffect States, since
 we would only be tracking EPA actions.  In .'! 1936 457 EPA formal
 enforcement actions were taken against mir. •-* and unpermitted
 facilities.  The total  i-at.a entry bur ien f..-  the  entire nation is-
 estimated  at  26 hours for one fiscal year.  The PCS  ADE Screens
 necessary  for this  data entry are attached,  and the  amount of
 data entry is obviously quite small.  We wouli only  give credit
 for  those  AOs entered into PCS,  as we presently Jo for N'PDES and
 pretreatment  inspections.

     Under this program the GREAT System wouM become a historical
 data base.  We  would  continue to track close-outs of administra-
 tive enforcement actions currently in the GF.'AT system to ensure
consistent accountability.   All  quarterly measures for tracking
 EPA  JJPDES  administrative orders  for the Strategic Planning and
Management Systea (SPMS)  would be retrieved from  PCS in FY 1933.
We would, "however,  -.ake parallel retrievals from  GREAT and PCS for
 the  third  and fourth  quarters of FY37 to. give everyone time to •
 ensure that all  their er.forcer.ent actions ar-3 being  entere-3 into
 PCS.
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                               -2-
     The plan is to enter into PCS all data for EPA enforcement
actions taken against aajors. unperaitted 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 closebuts 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 Time on July 30, 1987, to discuss the proposed conversion.

     Please call Larry Reed or George Gray (FTS 475-8313) if  '
there are questions before the July 3Cth conference call.  We
will call you to assure that you received this notice.

Attachments
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                                                                   ZZ.C.ll.
"GUIDANCE FOR REPORTING AND EVALUATING POTH NONCOMPLIANCE WITH PRETREATMENT
IMPLEMENTATION REQUIREMENTS", dated September, 1987.
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f _**_ Ti        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
        *  .                         WASHINGTON. D.C. 20460

                                    September 30.1987
   «a«*
                                                                             MAT (A
 MEMORANDUM


 SUBJECT:          Guidance for Reporting and Evaluating POTW Noncompliance
                    with Pretreatment Implementation Requirements
 FROM:             JawtsR. Oder. Director
                     Jffice of Water Enforcement and Permits (EN-335)
 TO:                Regional Water Management Division Directors.
                    NPDIIS State 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 prctreatment programs. The Guidance identifies criteria for evaluating the
principal POTW activities that are essential to fully implement most local programs. POTWs that meet
the criteria  in the definition should be reported  by EPA and approved States on  the Quarterly
Noncompliance Report (ONCR).
These criteria  were developed by an EPA workgroup and presented to States  and Regions  at the
National Pretreatment Coordinators Meeting, December 17. 1986. Draft  guidance was developed and
circulated for comment in May  1987. In general, your comments supported the criteria that were
proposed in the draft. We also received comments from former PIRT members. As a result, the final
guidance has been modified in two areas. Under the criteria for POTW inspections of SIUs, the percent
coverage has been increased to 80% of the levels required in the permit or approved program. If no
specific permit or program requirement was established, the guidance recommends reporting any POTW
that failed to sample or inspect at least 50?e 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 wfll trac
how frequently POTW noncompliahce is addressed by formal enforcement. Further explanation of thb
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
Slates in applying the definition of reportable 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. Director.
Enforcement Division,  or Anne Lassiter. Chief. Policy Developer..-: Branch (202 4"5-S.'%o?j. 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.'nilcd St.itcs iinvironmcnta! Protection'Agency
              Office of Water
          Office of Water Enforcement Permits
             Washington. D.C.
             -September 30, 1987 '
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                                 TABLE OF CONTENTS
I.  Introduction                                                                       1
   A.  Background                                                                    1
   B.  Existing Rule                                                                   1
   C.  Definition of Reportahle Noncompliance                                           2
II.  Applying the Criteria                                                               4
   A.  Failure to Issue Control Mechanisms to Significant IUS in
       a Timely Fashion                                                                4
   B.  Failure to  Inspect Significant IUs                                                  5
   C  Failure to Establish and Enforce IU Self-Monitoring
       where Required by the Approved Program                                          5
   D.  Failure to Implement Pretreatment Standards                                    '6
   E.  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
   II.  Any Other Violation(s) of Concern to the Approval Authority                         9
III.  Reporting on the QNCR                                                    .10
   A.  Format                                                                       10
   B.  Description ol the Noncompliance                                                10
   C.  Compliance Status                                                          'II
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.  Summary                                                                       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 111.45).
One of the violations that must be reported is a POTWs 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 reportable noncompliance
for POTW pretreatment program implementation which establishes criteria to evaluate adequate
implementation. Although the size and complexity of local pretreatment programs varies greatly among
Control Authorities, all POTWs must perform certain basic activities to implement their pretreatment
programs. The definition of reportable noncompliance establishes criteria in five basic Areas of POTW
program implementation: IU control mechanisms; compliance monitoring and  inspections;  POTW
enforcement:  POTW reporting  to the Approval  Authority; and  other POTW implementation
requirements.

The purpose of this Guidance is to explain the basis for the definition and its criteria, provide examples
of 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 he used to fulfill requirements  for reporting  POTW  pretreatment noncompliance that are-
described in the FY 1'WX Agency Operating Guidance and  included as a performance measure for El'A
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'OTW. [KTmitirfN1 must Ix- 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.,  /\
         administrative  orders, judicial orders, or consent decrees) for violations of pretreatment   I
         implementation requirements must be listed on the ONCR and the compliance status must   I
         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 flow of at least 1 million gallons per day or a BOO/TSS loading
  equivalent to a population of at least 10.000 people. Any POTW (including a minor POTW) with an approved local
  pretreatment program should have its pretreatment violations reported on the ONCR.
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      2.  Category I pretreatment program noncompliance • A POTW must be 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.&. to submit an Annual Report or
             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.                     •
         b)  a failure of an approved POTW to implement its approved prugnim atletftuttfly [emphasis
             added],  including failure to enforce industrial pretreatment requirements on industrial
             users as required hy the approved program.1 or
         c)  any other violation or group of violations which the Director or Regional Administrator
             considers to be of substantial concern.
C  Definition of Reportable Noncompliance

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 IL* control mechanisms.

      2)  POTW compliance monitoring and inspections.

      3)  POTW enforcement of pretreatment requirements.

      4)  POTW reporting to the Approval Authority, and

      5)  Other POTW implementation requirements.

Collectively, these activities are the framework for  :he 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 NQNCOMPLIANCE


 A POTW should be reported on the QNCR if the violation of its approved pretreatment program, its
 NPDES permit  or an enforcement  order4 meets one or more  of the following lettered criteria for
 implementation of its approved pretreatment program:                                      -

 I.  Issuance of IL* Control Mechanisms

      A)  Failed to issue, reissue, or ratify industrial user  permits, contracts, or other control
         • mechanisms,  where required, for "significant industrial  users*, within six  months  after
          program approval.  Thereafter, each "significant industrial user" control mechanism should
          be reissued within  90 days of the date required in the approved program. NPDES permit.
          or an enforcement  order.                                                     •
 II.  POTW Compliance Monitoring and Inspections

      B)  Failed to conduct at  least eighty percent of the inspections and samplings of •'significant
          Industrial users" required by the permit, the approved program, or an enforcement order.
      C)  Failed to establish  and enforce self-monitoring requirements that are necessary to monitor
          Sit' compliance as required Hy the approved program, the NPDMS permit, or an enforcement
          order.
 III.   POTVV {enforcement   •  '

      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. NPI>I:S permit, or an enforcement order.
      I£)  Tailed to undertake effective enforcement against the industrial uvr(s)  lor instances ol
          pass-through and interference as defined in 4't (*f-'R Section 40} 1 and required by Section
          403.5 and defined in the approved program.
 IV.  POTVV Reporting to the Approval Authority

      F)  Failed to submit a pretreatment report (e.g.. annual report or publication  of  significant
         violators) to the Approval Authority within 30 days of the due date specified in the NPDES
         permit, enforcement order, or approved program.4
V.  Other POTVV Implementation Violations

      G)  Failed to complete a pretreatment  implementation compliance schedule milestone within
          90 days of the due date specified in the NPDES permit, enforcement order, or approved
          program.4

      H)  Any other violation or group of violations of local program implementation requirements
          based on  the NPDES permit; approved program or 40 CFR Part 40.1 which the Director or
          Regional Administrator considers to be of substantial concern.4
3 The term enforcement order means an administrative order, judicial order or consent decree. (See Section 113.45;

4 Existing QNCR criterion (40 CFR Pan 123 45); the violation must be reported.
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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(0(2)]. approved pretreatment programs.
 and NPDES permit conditions (particularly  Part  III).  Where specific conditions; deadlines, or
 procedures are specified in the regulations or the approved program, and incorporated or referenced
 iri 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 reportable 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) us well as any special sources of information. All .mnu.il reports should include a Pretreatment
 Performance Summary of SIU compliance information.* This summary .should he useful to assess the
 effectiveness of pretrcatmrnt implementation Pictreatmmt st.i!t shcuUI review  the approved program.
 the NPDES permit. and anv correspondence with the POTVV 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.
                        ISSrANCK OK If CONTROL \IKCII\MSMS


A.  Failure to Issue Control Mechanisms tu Significant U's in a Timel* fashion

The POTW can use contracts*, individual 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 program 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, il 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.
                 i                           -
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 ONCR 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.
5 US1-PA Pretreatmem Compliance Monitoring and Enforcement Guidance (PCME)  19K6 Recommended specific data..
  EPA proposed rules for annual reports that include the PCME data.

• Proposed rule change to 40 CFR 403 on June 12, 1986 (51 FR 2US4) would make contracts an unacceptable control
  mechanism to obtain penalties.                             .
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The POTW should also maintain and  update its inventory  of SIUs.  EPA is considering further
rulemaking to require annual  updates of the IU inventor)- by all POTWs. The IU inventory is the
foundation for  applying pretreatment controls and monitoring IU compliance. POTVVs 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 II; inventory.
                  POTW. COMPLIANCE MONITORING AM) INSPECTIONS


B.  Failure to Inspect Significant Industrial Users

POTWs are required to possess* the legal  authority to earn* out  all inspection, surveillance, and
monitoring procedures necessary to verify the compliance status of their industrial users independent
of information provided by the industrial user (40 CFR 40.vX (0(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 arid/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 a basis to evaluate POTW compliance If the POTW has failed to inspect or sample at least K0<*
of the significant industrial users a\ required In the permit or the approved program, the I'OTW should
be reported on the ONCR for its failure inspect POTW' sampling of all lUs is essential to evaluate IU
compliance where It.'s do not submit self-monitoring information  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 5H'"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 NPDFS  permit to K- sure th.it the I'OTW conducts  inspections or sampling visits of all
SIUs at least annuallv.
       I           *                  •                      •
C*.  Failure to Establish and Enforce II' Sclf-Munilnrinu wherr Required h\  the Approved I'ntgram

All  categorical lUs are required to report at  least twice a year [40 C'FR (40.* 12)). PpTW.s also have
authority to require monitoring and reporting from non-categorical I Us. 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
wastewater; 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 tKat 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 PQTW response to violations. Under proposed rules7- for
 pretreatment,  SIU violations would trigger additional self-monitoring.  For each violation the SIU
 detects, it would he 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


D.  Failure to Implement Pretreatment Standards

  I.  Application of Ijtral Limits

Implementation  of  pretreatment standards requires the development of local limits as well  as the
enforcement of all pretreatment standards. The discussion of local limits in the preamble to the OKI
General  Pretreatment  Regulations Mates in part: "These (local) limits  are  developed initially as a
prerequisite to I'OTW 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>tnrougn, 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 NPOES permit as soon as feasible. Where a POTW
has previously adopted local limits but has not demonstrated that those Mini's are based on sound
technical analysis, the Approval Authority should require the POTW to demonstrate that the local limits
are sufficiently stringent to protect against pass-through, interference and sludge contamination. POTWs
which cannot demonstrate  that their limits provide adequate protection should  be reported  on the
QNCR and required to revise those limits within a specific time set forth in a permit modification.
7 See proposed amendments. 10 General Prctreaimem Regulations. 51 PR 2154. June 12,1986.

• See dikuMiun from Rebecca Hanmer, Dirccmr. OWEP USEPA Memorandum "Local Limits Requirements Tor
 Pretreatment ProgramV Augu&i 5. 19H5.                                .
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  2.  POTW Enforcement and IU Significant Noncompliancc

The Control  Authority  must  have the  legal authority-usually expressed through  a sewer  use
ordinance-to  require the development of compliance schedules  by lUs and to obtain remedies for
noncompliance, including injunctive relief and civil cr criminal penalties (40 CFR 403.8(f)(iv) and (vi)].
In addition, the Control  Authority must have an attorney's  statement, which among  other things.
identifies how the Control  Authority  will ensure  compliance  with  pretreatment  standards and
requirements  and  enforce  them  in the  event of  noncompliance  by industrial users  [Section
40.1.9(h)fl)fiii)]. 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
33 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 If/TV*' 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 SIL's with pretreatment standards. Where
the level of significant noncompliance (SNC)' of SIL's is 20*7.. or greater. • there is a reasonable
presumption that  the  Control Authority is  either not effectively enforcing its procedures or that the
procedures are inadequate. The burden of proving that this is not the case should fall on the Control
Authority.

HI'A and NI'DI-.S States have been using a definition of significant  noncnmpliancc for major permittees
to set piiotitics.lor Uumal enforcement and as » tool to evaluate the effectiveness of  Regional and State
compliance programs  Major industrial permittees, a  subset of all industrial 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 similiar 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 most approved pretreatment programs are still  relatively inexperienced, a 20% level
of SNC for SIUs appears to be a reasonable  starting point to assume that  POTW enforcement is
inadequate. As POTWs gain  experience, the level of SNC should decrease, and thus, this definition can
he made  more stringent.
 Sec SNC definition included in xenon 34 1 of the PCME. The ANPR fur 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
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   3.  Enforcement Response Procedures

 Although most approved programs describe the authorities that are available to the POTW and thj
 procedures for addressing SIU noncompliance, few programs specify what action will be taken or wh
 it should occur. POTWs have been required to develop enforcement response procedures under const
 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
 il 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  be inadequate,  the
 procedures  should be modified. The Approval Authority might require modification of the approved
 program, through the NPDES permit or possibly an administrative order requiring the adoption of new
 procedures along the lines of those included in the  PCME Guidance. The Control Authority should htt
 listed on the QNCR in noncompliance until it has taken those actions required of it by the Apprr
 Authority.
 Eiven 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 PJs 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
 pals-through. Whenever interference or  pass-through  is identified, the POTW should apply such
 procedures to correct the problem. Section 403 J  of the. General Pretreatment Regulations requires
 tharthe POTW develop and enforce local limits to prevent interference and pass-through from industr:"»-
 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 Secu. n 403.5. The POTW should be reported or.
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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 Pretratment Reports Within 30 days

This criterion already exists under Category I of 40 CFR Part I23.45(a). The term "pretreatment report*
should he 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 40.1.8(f)(2)(vii)
of the General  Pretreatment Regulations). Where specific dates are established for these or  other
reports from the POTW. they may be tracked as schedule requirements in PCS.  When deadlines are
mi.vscd, the. POTW should be notified immediately because these reports contain information which is
essential to determine compliance status. When the due date is missed by 30 days  or more, the POTW
should be reported on the ONCR as in noncompliance.
                      OTIIF.R POTW IMPI.F.MF.NTATION VIOLATIONS


G.  Failure to 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 pan  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 ONCR 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 ONCR. 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 Vinlatinnfs) of Concern to the Approval Authority

This criterion allows the Approval Authority to identify any POTW as in reportable noncomplianctt for
a single violation or any combination of violations which are judged to be important even though thf
may not be covered by the specific criteria in the definition. These violations may include instance
where the approved program and/or implementation requirements are considered to he inadequate to
control IU contributions to the POTW (e.g. failure to develop and/or enforce local limits), to monitor
for SIU compliance with pretreatment requirements, or to enforce requirements and obtain remedies
for SIU noncompliance.

IIL  REPORTING ON THE QNCR

The Quarterly Noncompliance Report is prepared by NPDES States and EPA Regions each quarter.
In lists violations of Federally designated major NPDES permittees that are of concern to the Agency.
The format is described in Section 123.45(a) of the Regulations. For each instance of noncompfiunce.
the report must show the date, basis and type of the violation, the date and type of action the agency
hn< taken, and the current compliance M.itu* The agency should also explain mitigating circumstance*
or rcmt-di.il actions which 'he permittee may have planned Detailed guidance tor preparing the (JNC'R
is available upon  reques  a> the Regions or OWEP. The following discussion summarizes the basic
requirements for reporting POTW pretreatment violations.

Title QNCR must  he submitted to EPA Headquarters sixty days after the reporting quarter ends. The
QNCR covers Federally designated majors. Generally, a POTW over 1 MOD is automatically designated
as a major. This includes the vast majority of the POTW Control Authorities. All POTW pretreatment
implementation violations should be reported on the QNCR. regardless of whether the control authority
is clavsified a> a major or a minor POTW

A.  Format                                                                :   ,

The general format for the QNCR is described in the  Regulations. A  list of abbreviations and cod
us*:d by the State  Agency or EPA Region that prepares the report should be attached  to each QNCk.
If the Permit Compliance System (PCS) is used to generate the  QNCR. standard abbreviations are
automatically used and no special list of abbreviations or codes is  needed for the submittal to
Headquarters: (Note that a  list of abbreviations may be needed for Freedom  of Information Act
requests.) The format is intended to provide the minimum information that is necessary to describe the
violation, show how and when the agency responded, explain any mitigating circumstances or clarifying
cofirunents. and indicate the current compliance status of the permittee.

The description of the permittee should include the  name of the permit  holder, the name.of the
municipality, and the NPDES permit number. The permittee should be the Control Authority for the
local pretreatment program. If other municipal permittees are subject to the Control Authority, they
should be listed under the comments portion of the entry. The Control Authority is  responsible for
violations by other permittees covered by the Control Authority's pretreatment program. Similarly.
industrial users that contribute to the violation should be listed under comments.

B.  Description of the NoncorapUance

Under the permittee's name and permit number, information on each instance, of noncompliance must
be.reported. For  pretreatment violations, the description should summarize the criteria  that were
violated and reference  the QNCR Regulation subparagraph. The subparagraph of the August  1985
Regulations that apply would be as follows:       •
                                            lo
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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)  Pro-treatment Report - ?0 days overdue                              (a)(ii)(D)
    (Criterion F)
3)  Compliance schedule - 90 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
y. I'IKT is entered as WINS? for the PCS generated QNCR*.

The Region or approved State should contact the POTW promptly when a pretreatment implementation
violation is detected. The Region/Slate should also indicate its response to the POTW's failure to
implement  .in  approved program on  the  QNCR  In determining the appropriate response,  the
Region/State should consider the impact of  the violation. POTW compliance history,  the number of
SILK and the nature and/or duration of the violation. Initial violations may he resolved through training,
conferences, or on-site  it-views  The Recicnal/Stale response should be timely and escalate to formal
enforcement (an administrative  order or judicial referral) il the  I'OTW fails or is unable lo comply in
a timeK fashion (see example 2) The dale the action *as taken should .also be indicated on the QNCR.
Planned actions by the I'OTW or its II \ and projected dates should be noted under comments.

C.  Compliance Status

The QNCR also tracks the status of each instance of reportable 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  QNCR criteria
for  which they are  listed. For the "noncompliance" and "resolved pending" status,  the status date is
generally the last dale  of the report period. The  status date  for "resolved" is either the date the
noncompliance requirement is fulfilled or the last day of the report period in which the permittee no
longer meets the QNCR criteria.                                                      •

The "comments" column can  be used to describe the  violation, explain permittee progress, indicate
potential remedies, 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 OV 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 whicf" '
       meeds assistance. In each example, instances of noncompliance were addressed by an administrativv
       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.I98ft. 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 Listing
           INSTANCE OF
         NONCOMPLIANCE
                                Hometown WWTP. Hometown. US 00007
 DATE
  KEG
SUBPARA
   ACTION
(AOENCY/DATF.)
COMPLIANCE
STATUS (DATE)
           Issue permits
           (Criterion A)
063086     (iii)(B)
                        Audit
                    (EPA/IW.VWI1)
                      AO *.I2*
                    (State/n.Vlls?)
              RP (033187)
           Inspect SIUs
           (Criterion B)
  083086     (ni)(B)
    Audit
(EPA/UUOXh)
  AO*I23
(State/033187)
                                  RP (033 187)
           Submit Annual
           Report    :
           (Criteria F)
  011587
                      Phone call    RP (033187)
                    (State/013087)
                      AO#123
                    (State/033187)
       COMMENTS
       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
•'~XV
                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 reportahle noncompliance
             criteria were exceeded (see sections I and II of this guidance). The annual report was due
             January 15. l'>87, 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 QN'CR 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 1.  1986. The facility has two
           SIl's. one is a food processor and the other is a pharmaceutical manufacturer. Little Burg
           has had loads that have resulted in permit violations of BOD (March • June 1986). The State
           Approval Authority issued an administrative order September .10. 1986 to establish a
           schedule for issuing II,' permits. The BOD violations were considered resolved for reporting
           purposes as of October 1. l'W6.

                                       QNCK Listing
      INVIAM I eil
    NONt OMI'I IAN« I

     Hnlouv .iL'.nii-.i
     K:
     pass-thiouch.
     inlet let ciu'i*
     (C'rilerion I:)

     Criteria F:
Little Burg WWTP. Little Burg.' trs 0008

   D-VTl:
             KI r,
           sunr/xKA
           (iiil(H)
043086     (iii)(B)
   ACTION      COMI'l.IANCK
(A<;i:.NCY/DATI-|  STATUS Ct>ATF)
(State/(rt.V)Hfi)
Warning letter
(Slate/0415Sh)


    AO#I      RP (033187)
(State/093086)
Warning letter
(State/051586)
     Criteria F:


     Criteria E
0531K6     (iii)(B)


063086     (iii)(B)
    same      RP (033187)
    same.     RP (033187)
COMMKMS              •

State has provided training to Little Burg and PRELIM to calculate local limits (10/86). City will issue
permits by 4/15/87.
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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 BOO limit whic'
                  met the criteria for reporting on the QNCR. In this case DMR data were critical flags c.
                  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
      OMRs  to evaluate the compliance status of the permittee. At a minimum, available data should be
      reviewed every six months to determine whether the POTW i\ in compliance This review 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 be tracked in PCS.
      which is EPA's automated data system. The dates for submission and receipt of periodic reports and
      routine requirements should also be tracked in PCS. WENDB data already require that receipt of an
      annual  report (or periodic report) and its due date must he entered into PC'S  as a permit schedule
      requirement. This tracking would allow Regions and States tu 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 pai.
      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 lumber 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
      noncompUance is reported on the QNCR. The data elements in PCS and PPETS that may apply to
      reponable noncompliance are summarized for each criterion in Table 2.

 II  Oncig 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
I I    is met in full EPA and/or the approved State should verify the compliance status of the POTW each
[ I    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 AND 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                              PPKTS
- Failure to f-stahlivh -Self-Monitoring
* 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.'.N not inspected at
    required frequency
 o  Inadequacy of POTW
    inspections  •

 o  SIUs in SNC- with self-
    monitoring1*
Criterion I)
- Failure to Implement Standards
PCS
                                       PPETS
 o  Violation Summary

 o  Hffluent .data"

 o  SIUs in SNC10

 o  Number of enforcement
    actions10
 o  Amount of Penalties10
 o  Adopted local limits10

 o  Technical evaluation for
    local limit*10
10 'Water Enforcement National Data Base (WENDBi dtu elements for which data entry is required, not optional
                                           IS
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                                          Table 2
                                       (Continued)
Criterion
Criterion O (Continued)
~ Failure to Implement Standards
Data Source
PPETS
Criterion E
- Failure to Enforce
PCS
                                        PPI-TS
Criterion F
— Failure to Submit Annual Report

Criterion G
~ Failure to Meet Compliance Schedules
PCS
PCS
Data Element
o  Deficiencies in POTW
   application of standards
o  Date permit required
   implementation10
o  Number of significant
   violators published in
   the newspaper10
o  Violation summary
                                                                    Effluent data"
o  Same as C'ritcrion D

o  Pass Through/Interfer-
   ence incidents
o  Deficiencies in POTW
   sampling
o  Deficiencies in POTW
   application of standards
o  Enforcement response
   procedures used
o  reporting schedule
o  permit reporting10
o  compliance schedule
   events10
10 Water Enforcement National Data Base (WENDB) data elements fur which data entry is required, not optional
                                            16
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VI.  RESPONSE TO POTW NONCOMPLIANCE

The ONCR requires reporting of noncompliance. as well as the action taken by 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 POTW program implementation, regardless of whether they are
or will  be reported  on  the ONCR.  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
hcen 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--ih.it is issuance in accordance with the approved program or permit or the requirement
of an enforcement  order uithin '"> days after permit expiration-the Approval Authority should issue a
warning letter  or administrative order to the Control Authority and establish a schedule for issuing the
necessary control mechanisms.                                           .

Where a schedule  is needed for corrccth'e action, the Approval Authority may wish to establish that
schedule in an enforcement order. When a schedule extends for *H) days or longer. liPA  recommends
that the Approval Authority establish the schedule in an enforcement order. A detailed schedule with
intermeiii.ile milestones *j|| help  the POTW allocate* appropriate time and priority to the required
tasks, uhilc helping the Approval Authority assess the PoTW's progress. The Approval Authority may
use a }ns It-lift to  oM.iin information and time estimates Irom the POTW to develop the compliance
schedule ('ompliance with an enforcement order is tracked on the ONCR until the POTW has returned
to full compliance uith the NI'DMS 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 ako be appropriate as an initial re&poriM: where the POTW's failure to enforce
has contributed to  interference, pass-through, or significant water quality impacts. When a violation by
the POTW ha> 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* » developing criteria for bringing formal enforcement actions and model pleadings and compla :s for
  judicial actions against POTW's 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 achieve
a nationally consistent pretreatment program, and to compile national statistics on noncompliance for
th« NPDES program. The existing rule for noncompliance  reporting requires EPA and the States to
report instances where POTWs  have failed to  adequately implement  and enforce  their approved
pretreatment program.    .

Nearly 1500 POTWs are now approved. Pretreatment will be the primary mechanism to control toxic
and hazardous pollutants which may enter the POTW or its sludge. Therefore, it  is vital that EPA and
the approved  States routinely evaluate POTW compliance with the requirements of their approved
program and report POTWs that have failed to adequately implement their approved program.

This Guidance is  intended  to  assist Regions  and  approved  States evaluate  and  report  POTW
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  NPDES 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 NPDF.S Regulations for noncompliance reporting
of POTWs  which fail to adequately implement their  pretreatment programs  The regulation will be
developed after Regions and approved States have h*id the opportunity to  use 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 am'
program reporting requirements.
                                           18
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                                                                 n.c.i2
Permit PC Personal Assistance Link Users Guide (updated 6/21/93)
-------
           Permit Compliance System
PC Personal Assistance Link (PAL) Users Guide
             Document Number PCS-PA91-1.01


                   June 21 1993
                 PCS USER SUPPORT
                    202/475-8529
                  U.S. EPA (EN-338)
                   401 M. St. SW
                Washington, DC  20460
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Preface

The Permit Compliance System (PCS) is a database management system that supports the NPDES regu-
lations.  The system is available to registered users in State and EPA Regions through the National Com-
puter Center in North Carolina.

PCS PERSONAL COMPUTER (PC) PERSONAL ASSISTANCE LINK (PAL) is a user friendly PC
software package which was developed specifically to allow managers to generate reports from PCS quickly
and easily using only a few keystrokes on their microcomputers.  In addition to the PCS PC-PAL Manual.
the following manuals are available on the PCS system.

    PCS Data Entry, Edit, and Update Manual - General Overview of PCS and  detailed information on
    entering data into PCS. Includes documentation on PCS-ADE and PC-ENTRY.
    Edit I Update Error Messages Manual - Provides a brief explanation for each error message encountered
    during the edit or update of PCS, arranged by data type.

    Generalized Retrieval Manual -Provides complete information about how to run all flexible format and
   fixed format reports available in PCS. This includes preprinting DMRs and running the QNCR.

   Inquiry User's Guide - Describes in detail the interactive retrieval software that provides interactive access
   to the PCS database.

   Data Element Dictionary -  Gives a detailed description of each type of data available in PCS, field by
   field.

   PCS Codes and Descriptions - Provides a complete list of all of the code value tables used in PCS.
   Referenced by the PCS Data Element Dictionary
                                                                                    Preface
-------
Revision Code Description
The following table gives a description of the revision code used with each revision of the PCS Data Entry,
Edit, and Update Manual.
REVISION
CODE

DATE
06/21/93
DOCUMENT
NUMBER
PCS-PA91-1.01
DESCRIPTION
Initial Release of Advanced Function Printing
(AFP) version of the PAL Users Guide.
Table  0-1. Revision Summary
                                                                Revision Code Descrintinn
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 Contents

 Chapter 1.  INTRODUCTION TO PCS PC-PAL   	  1-1

 Chapter 2.  OVERVIEW OF PCS  	  2-1

 Chapter 3.  USING PAL   	3-1
 3.1 Initiating a PAL Session	3-1
 3.2 Accessing PAL	  3-1
   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

 Chapter 4.  Significant Noncompliance 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

 Chapter 5.  INSPECTION REPORTS   	  5-1
 5.1 Inspection Scheduling Report   	  5-1
 5.2 Last Inspection Completion Report   	  5-15

 Chapter 6. PRETREATMENT REPORTS   	  6-1
 6.1 Inspection/Audit Scheduling Report   	.:	6-1
 62 Last Inspection/Audit Completion Report  	  6-15
 6.3 Annual Report Scheduling List   	  6-29
 6.4 Annual Report Submission List  	  6-42

 Chapter 7. ENFORCEMENT ACTION REPORTS  	7-1
 7.1 Formal Enforcement Actions Report  	  7-1
 7.2 Closed Formal Enforcement Actions Report   	  7-16

 Chapter 8. EXPIRED PERMITS REPORTS	  8-1
 8.1 All Expired Permits Report   	  8-1
 8.2 Applications Non-Receipt Report  	  8-15

Appendix A.  PCS User Docmentation Comment Form  	  A-l

Index  	  X-l
                                                                              Contents
-------
Figures
  3-1.   Intro Screen   	3-2
  3-2.   Option Selection Screen	  3-3
  3-3.   Help Screen	  3-4
  3-4.   User Selection Screen   	3-5
  3-5.   Region Selection Screen	3-6
  3-6.   Report Selection Screen	3-7
  3-7.   State Selection Screen   	3-8
  4-1.   SNC Report Selection Screen   	4-2
  4-2.   SNC Facility List Report   	4-3
  4-3.   SNC Facility Report Selection Screen    	4-4
  4-4.   SNC Effluent Report Selection Screen   	4-5
  4-5.   SNC Effluent Report Screen   	4-6
  4-6.   SNC Compliance Schedules and Reports Screen   	4-7
  4-7.   SNC DMR Overdue Report Screen	4-8
  4-8.   SNC Report Select Options Screen   	  4-10
  4-9.   SNC Facility Type Selection Screen  	  4-11
 4-10.   SNC Major Indicator Selection Screen   	  4-12
 4-11. ... SNC Enforcement Action Addressed Selection Screen   	  4-13
 4-12.   SNC Effluent Report Selection Screen   	  4-14
 4-13.   SNC Report Options Selected  Screen  	  4-15
 4-14.   SNC Effluent Report Screen   	  4-16
 4-15.   SNC Report Select Options Screen  	  4-18
 4-16.   SNC Facility Type  Selection Screen	  4-19
 4-17.   SNC Major Indicator Selection Screen   	  4-20
 4-18.   SNC Enforcement Action Addressed Selection Screen   	  4-21
 4-19.   SNC Report Options Selected Screen  	  4-22
 4-20.   SNC Compliance Schedules and Reports Screen   	  4-23
 4-21.   SNC Report Select Options Screen  	  4-25
 4-22.   SNC Facility Type  Selection Screen	  4-26
 4-23.   SNC Major Indicator Selection Screen   	  4-27
 4-24.   SNC Enforcement Action Addressed Selection Screen   	  4-28
 4-25.   SNC Report Options Selected Screen  	  4-29
 4-26.   SNC DMR Non-Receipt Report   	  4-30
  5-1.   Inspection Report Selection Screen  	  5-2
  5-2.   Inspection Report Select Options Screen   	5-3
  5-3.   Inspection Report Facility Type Selection Screen   	  5-4
  5-4.   Inspection Report Major Indicator Selection Screen  	  5-5
  5-5.   Inspection Type Selection Screen   	  5-6
  5-6.   Inspection Report Timeframe Selection Screen   	  5-7
  5-7.   Inspection Report Start Date Year Selection Screen   	  5-8
  5-8.   Inspection Report Start Date Month Selection Screen   	  5-9
  5-9.   Inspection Report End Date Year Start Screen   	  5-10
 5-10.   Inspection Report End Date Month Selection Screen    	  5-11
 5-11.   Inspection Report Timeframe Selected Screen  	  5-12
 5-12.   Inspection Options Selected Screen  	  5-13
 5-13.   Inspection Scheduling Report	  5-14
 5-14.   Inspection Report Selection Screen  	  5-16
 5-15.   Inspection Report Select Options Screen  	  5-17
 5-16.   Inspection Facility Type Selection Screen   	  5-18
 5-17.   Inspection Report Major Indicator Selection Screen   	  5-19
 5-18.   Inspection Report Inspection Type Selection Screen  	  5-20


                                                                                      Figures
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 5-19.  Inspection Report Timeframe Selection Screen   	  5-21
 5-20.  Inspection Report Start Date Year Selection Screen    	  5-22
 5-21.  Inspection Report Start Date Month Selection Screen   	  5-23
 5-22.  Inspection Report End Date Year Start Screen	  5-24
 5-23.  Inspection Report End Date Month Selection Screen   	  5-25
 5-24.  Inspection Report Timeframe Selected Screen   	  5-26
 5-25.  Inspection Report Options Selected Screen	  5-27
 5-26.  Last Inspection Completion Report  	  5-28
 6-1.  Pretreatment Report Selection Screen  	  6-2
 6-2.  Pretreatment Report Select Options Screen	6-3
 6-3.  Pretreatment Report Facility Type Selection Screen    	  6-4
 6-4.  Pretreatment Report Major Indicator Selection Screen  	  6-5
 6-5.  Pretreatment Inspection Audit Type Selection Screen   	  6-6
 6-6.  Pretreatment Report Timeframe Selection Screen  	:	  6-7
 6-7.  Pretreatment Report Start Date Year Selection Screen   	  6-8
 6-8.  Pretreatment Report Start Date Month Selection Screen  	'	6-9
 (5-9.  Pretreatment Report End Date Year Start Screen  	  6-10
 6-10.  Pretreatment Report End Date Month Selection Screen   	  6-11
 6-11.  Pretreatment Report Timeframe Selected Screen   	  6-12
 6-12.  Pretreatment Report Options Selected Screen   	  6-13
 6-13.  Pretreatment/Inspection Audit Scheduling Report   	  6-14
 6-14.  Pretreatment Report Selection Screen  	  6-16
 6-15.  Pretreatment Report Select Options Screen   	  6-17
 6-16.  Pretreatment Report Facility Type Selection Screen    	  6-18
 6-17.  Pretreatment Report Major Indicator Selection Screen   	  6-19
 6-1.8.  Pretreatment Inspection Audit Type Selection Screen   	  6-20
 6-19.  Pretreatment Report Timeframe Selection Screen  	  6-21
 6-20.  Pretreatment Report Start Date Year Selection Screen   	  6-22
 6-21.  Pretreatment Report Start Date Month Selection Screen  	  6-23
 6-22.  Pretreatment Report End Date Year Start Screen  	  6-24
 6-23.  Pretreatment Report End Date Month Selection Screen   	  6-25
 6-24.  Pretreatment Report Timeframe  Selected  Screen   	  6-26
 6-2.5.  Pretreatment Report Options Selected Screen  	  6-27
 6-26.  Last Pretreatment Inspection/Audit  Completion Report   	  6-28
 6-27.  Pretreatment Report Selection Screen   	  6-30
 6-28.  Pretreatment Report Select Options Screen	  6-31
 6-29.  Pretreatment Report Facility Type Selection Screen    	  6-32
 6-30.  Pretreatment Report Major Indicator Selection Screen   	  6-33
 6-31.  Pretreatment Report Timeframe  Selection Screen  	  6-34
 6-32.  Pretreatment Report Start Date Year Selection Screen   	   6-35
 6-33.  Pretreatment Report Start Date Month Selection Screen   	  6-36
 6-34.  Pretreatment Report End Date Year Start Screen  	   6-37
 6-35.  Pretreatment Report End Date Month Selection Screen   	   6-38
6-36.  Pretreatment Report Timeframe  Selected Screen   	   6-39
 6-37.  Pretreatment Report Options Selected Screen  	   6-40
 6-38.  Pretreatment Annual Report Scheduling List   	   6-41
 6-39.  Pretreatment Report Selection  Screen   	   6-43
 6-40.  Pretreatment Report Select Options Screen   	   6-44
6-41.  Pretreatment Report Facility Type Selection Screen   	   6-45
6-42.  Pretreatment Report Major Indicator Selection Screen   	   6-46
6-43.  Pretreatment Report Timeframe Selection Screen  	   6-47
 6-44.  Pretreatment Report Start Date Year Selection Screen   	   6-48
 6-45.  Pretreatment Report Start Date Month Selection Screen  	   6-49
6-46.  Pretreatment Report End Date Year Start Screen  	   6-50
6-47.  Pretreatment Report End Date Month Selection Screen  	   6-51
  Permit Compliance System:   PC Personal Assistance Link (PAL) Users Guide
-------
 6-48.  Pretreatment Report Timeframe Selected Screen   	   6-52
 6-49.  Pretreatment Report Options Selected Screen   	   6-53
 6-50.  Pretreatment Annual Report Submission list   	   6-54
  7-1.  Enforcement Action Selection Screen  	  7-2
  7-2.  Enforcement Action Select Options Screen  	  7-3
  7-3.  Enforcement Action Facility Type Selection Screen	  7-4
  7-4.  Enforcement Action Major Indicator Selection Screen   	  7-5
  7-5.  Enforcement Action Type of Order Issued Screen	  7-6
  7-6.  Enforcement Action Violations Addressed Screen  	  7-7
  7-7.  Enforcement Action Timeframe Selection Screen   	  7-8
  7-8.  Enforcement Action Start Date Year Selection Screen   	  7-9
  7-9.  Enforcement Action Start Date Month Selection Screen   	   7-10
 7-10.  Enforcement Action End Date Year Start Screen   	   7-11
 7-11.  Enforcement Action End Date Month Selection Screen   	   7-12
 7-12.  Enforcement Action Timeframe Selected Screen	   7-13
 7-13.  Enforcement Action Options Selected Screen   	   7-14
 7-14.  Formal Enforcement Action Report   	   7-15
 7-15.  Enforcement Action Selection Screen  	   7-17
 7-16.  Enforcement Action Select Options Screen	   7-18
 7-17.  Enforcement Action Facility Type Selection Screen	   7-19
 7-18.   Enforcement Action Major Indicator Selection Screen   	   7-20
 7-19.  ' Enforcement Action Type of Order Issued Screen	   7-21
 7-20.   Enforcement Action Violations Addressed Screen  	   7-22
 7-21.   Enforcement Action Timeframe Selection Screen  	   7-23
 7-22.   Enforcement Action Start Date Year Selection Screen   	   7-24
 7-23.   Enforcement Action Start Date Month  Selection Screen   	   7-25
 7-24.   Enforcement Action End Date Year Start Screen  	   7-26
 7-25.   Enforcement Action End Date Month Selection Screen   	   7-27
 7-26.   Enforcement Action Timeframe Selected Screen  	   7-28
 7-27.   Enforcement Action Options Selected Screen	   7-29
 7-28.   Formal Enforcement Action Report   	   7-30
 8-1.   Expired Permits Report Selection  Screen  	  8-2
 8-2.   Expired Permits Report Select Options Screen	  8-3
 8-3.   Expired Permits Report Facility Type Selection Screen	  8-4
 8-4.   Expired Permits Report Major Indicator Selection Screen   	  8-5
 8-5.   Expired Permits Report Timeframe Selection Screen  	  8-6
 8-6.   Expire Permits  Report  Start Date  Year Selection Screen  	  8-7
 8-7.   Expired Permits Report Start Date Month Selection Screen  	  8-8
 8-8.   Expired Permits Report End Date Year Selection Screen    	  8-9
 8-9.  Expired Permits Report End Date Month Selection Screen  	   8-10
 8-10.  Expired Permits Report Timeframe Selected Screen	   8-11
 8-11.  Expired Permits Report Applications Received/Not Received Screen    	   8-12
 8-12.  Expired Permits Report Options Selected Screen   	   8-13
 8-13.  Expired Permits Report  	   8-14
 8-14.  Expired Permits Report Selection Screen  	   8-16
 8-15.  Expired Permits Report Select Options Screen	   8-17
 8-16.  Expired Permits Report Facility Type Selection Screen	   8-18
8-17.  Expired Permits Major Indicator Selection Screen	   8-19
8-18.  Expired Permits Timeframe Selection Screen	   8-20
8-19.  Expire Permits Report Start Date Year Selection Screen  	   8-21
8-20.  Expired Permits Report Start Date Month Selection Screen  	   8-22
8-21.  Expired Permits Report End Date Year Selection Screen    	   8-23
8-22.  Expired Permits End Date Month Selection Screen  	   8-24
8-23.  Application Non-Receipt Report Timeframe Selected Screen   	   8-25
8-24.  Applications Non-Receipt Report  Options Selected Screen   	   8-26

                                                                                       Figures
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8-25.   Applications Non-Receipt Report  	   8-27
   Permit Compliance System:  PC Personal Assistance Link (PAL) Users Guide
-------
Tables




  0-1.  Revision Summary
                                                                        Tables
-------
                                                          II.C.13
"Changes to the SNC Definition", dated April 5, 1991.
-------
                                          OFFICE OF
                                           WATER
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

           WASHINGTON, D.C. 20460.
                         APR  5 1991

              \


MEMORANDUM                       '

SUBJECT:   Changes  to the SNC Definition

FROM:      James R.  Elder,  Direc
           Office of Water Enforcement and Permits (EN-338)

TO:        Regional Water Management Division Directors
           Regions  I - X
           Regional Compliance Branch Chiefs
           Regions  I - X

     Section 123.45 of the Code  of  Federal Regulations,  Title 40,
published  August 26,  1985,  establishes the reporting requirements
for quarterly noncompliance reports (QNCRs)  on National  Pollutant
Discharge  Elimination System (NPDES)  permitted facilities.  In an
effort to  ensure national  reporting consistency,  the "Guidance
Manual for Preparing Quarterly Noncompliance Reports" (Guidance
Manual) dated December 1985 was  developed to explain reportable
noncompliance (RNC)  and  to define significant noncompliance
(SNC).

     The Inspector General's (IG) office,  in September 1988,
issued a report entitled "NPDES  Compliance Monitoring
Information" which indicated improvements were needed in the
reporting  process.  As a result  of  recommendations made  in the
report and due to  concerns  expressed by the IG and shared with
the Regions and Headquarters,  a workgroup was formed to
reexamine  the RNC/SNC definition, with particular attention to
reducing the complexity  of  the entire reporting process.

     The workgroup  effort  is still  ongoing.   Soon you will be
asked to work with  your  States on proposed manor  changes to the
definition.                             *       .

     The workgroup, however,  has reached  general  consensus on
three separate definitional changes to SNC which  I strongly
support and which do  hot.require extensive discussions.   The
fourth issue involves clarification to the current SNC
definition.  Because  of  the nature  of these specific changes,
quick implementation  is  possible and in the best  interest of
Regions and States.   It  is  my belief  that  these changes  will
result in more consistency  nationwide^  In addition,  many Regions
or States  currently operate under these guidelines.   Therefore,
                                            Primed 01 Rec-.'..'-i -'^i
-------
 these  changes  should not  place  any undue reporting burdens  on
 Regions/States.   The .following  changes  are  to  be  implemented
 within the next  reporting quarter  -fJuly- through -September—^g»3
      1.   Currently, the Guidance Manual  includes percent removal
violations as SNC violations.  Both  TRC and chronic  criteria  are
currently applied to percent removal (Appendix V provides
technical guidance  for calculating percent removal violations).
However, the workgroup considers percent  removal to  be more an
indication of treatment plant efficiency  rather than an
indication of environmental harm.

      Therefore, percent removal violations are to be eliminated
from  the SNC definition.

      2.   Many, but not all, EPA Regions  and States  require
permittees to meet  achievable interim effluent limits (lELs)
during a period of  corrective action such as in the  case of major
upgrades or minor repairs.  The lELs are  written into enforcement
orders and current  guidance requires that any violations of lELs
be categorized as, SNC violations (unless  in the case of an
Administrative Order, the^IEL is as  stringent as the current  .
permit limit, then  TRC/chronic criteria would apply).

      For those Regions and States which do not utilize lELs,
guidance directs them to track against schedules.  These
facilities are not  held accountable  for meeting any  effluent
limits.  The current criteria for measuring IEL SNC  rates either
discourages the use of lELs altogether or encourages the use of
very  lenient lELs to avoid becoming  SNC for IEL violations.

     Therefore, in  the absence of interim effluent limits in an
enforcement order,  Regions and states are to track compliance
against the permit  limits,  utilizing TRC and chronic criteria.

      3.   According to the Guidance  Manual, an instance of SNC is
considered resolved when the SNC criteria are no longer met
(e.g., neither two  TRC nor four chronic violations of permit
monthly averages occur over a six month period)  during the review
period or when the  permittee formerly in SNC exhibits compliance
for all-three months of the most recent quarter.   Facilities with
seasonal operations or those with intermittent discharges
consistently fall into and out of SNC by nature of their
operation.  Resolution of SNC does not occur because they exhibit
three months of compliant data, but  rather because
operations/discharges have ceased temporarily.   Additionally,
resolution of effluent SNC may result simply by failure to submit
a DMR (either the entire DMR is missing or it is incomplete).

     Therefore, in  the future,  in order to resolve cases of SNC,
a facility must either fail to meet  the definition of SNC in a
six month vindov, or must have actual data shoving that no
violations have occurred in three months.
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     4.   The last, issue involves clarification, as I mentioned
earlier, rather than change.  Recently, with the automated
retrieval of SNC statistics from Permit Compliance System (PCS),
it has been brought to my attention that a few Regions operate
with the understanding that only when a permittee fails to submit
all DMRs from a particular facility, is that permittee considered
SNC.  The QNCR regulation means that:

     A separate DMR is required for each individual pipe/outfall.
One DMR non-submittal for one pipe is sufficient to place an
entire facility in SNC for reporting.

     You should not experience any problems in implementing the
changes outlined above.  Please work with your States to
streamline the process.  We recognize these changes will involve
programming changes to PCS, affecting many of the automated
reports currently generated by PCS.  Please make these manual
changes to PCS for the SNC reporting period ending June 30,  1991.
This data will be incorporated into the fourth quarter STARS
report to be submitted October 1, 1991.  In the meantime, my
staff will work to reprogram PCS.

     If you have questions concerning definitional issues, please
contact George Gray.  Once PCS is reprogrammed, direct any PCS
related problems to Dela Ng.  Both members of my staff may be
reached at FTS 475-8313.            '

     Work is ongoing to address the major recommendations from
the workgroup.  We will keep you apprised of any developments
along this front and will work through you to obtain State input
when the appropriate time arrives.
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                                                  II.C.I4
"Revision of NPDES Significant Noncompiiance (SN7C) Criteria to Address Violations of
Non-Monthly Average Limits", September 21, 1995
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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460

                          SEP 2 I  IS9
                                                           OFFICE OF
 MEMORANDUM                                             ENFORCEMENT AND
                                                       COMPLIANCE ASSURANCE

 SUBJECT:   Revision of NPDES Significant Noncompliance  (SNC)
           Criteria to Address Violations of Non-Monthly Average
           Limits
 FROM:      Steven A.  Hermar
           Assistant  Administrator

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

     This  memorandum transmits to you the NPDES program's new SNC
 definition.   This revision  of the SNC criteria was needed because
 the  current  definition results in many significant violators
 escaping detection as SNC and, therefore, avoiding routine
 enforcement  consideration.   The expeditious development of these
 criteria was due in  large part to the outstanding support from
 members of the  SNC Workgroup from various States and all ten
 Regions.

     The option for  the change to the SNC criteria that I have
 selected basically entails  the application of the current SNC
 criteria for Monthly Averages to Non-Monthly Averages as
 recommenced  by  the national SNC Workgroup.  In making my
 decision,  I  carefully considered information provided by you and
 your staff,  the SNC  Workgroup,  and the Water Enforcement Division
 (WED) here at Headquarters.'

     In brief,  I  selected the Workgroup option for the following
 reasons.   First,  it  is fully consistent with the President's
 Reinventing  Environmental Regulation guidance and will result in
 better targeting  of  limited enforcement resources to violations
 posing the greatest  risks to health and the environment.   Second,
 no new reports  are required.   The data to calculate the SNC based
 on the new criteria  is already provided in the NPDES national
 data' base  known as the Permit Compliance System (PCS) .

     Third,  the violations  of the Non-Monthly Average SNC
 facilities do pose a significant threat to the environment/public
 health.  Toxics  and  other risk-based water quality based limits
 are being violated in a large majority of the new SNC cases.
Among the new SNC are non-toxic pollutants,  such as nutrients and
 oxygen demanding parameters,  which have been documented by EPA as
 beina amona  the zoo  five causes of water crualicv impairment.
                                                    	.lecycie&necyoacie
                                                      "—-11 wrt^ SovCanc-s '•* :~ rrrf-r —.
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Also, close to three quarters of the non-toxic SNC violators,
which will be captured by the new SNC criteria, are repeat
offenders and therefore are among the worst violators.

     Attachment I provides the official new SNC definition.
Attachment II-A provides details 'on the Regulatory Reinvention
analysis and Attachment II-B discusses the SNC definition
options.

IMPLEMENTATION

     Although I am officially selecting this new SNC definition
today, I am delaying formal implementation for one year.  This
delay is, in part, a response to the Regions' request for time,
prior to officially reporting the new SNC, to reduce the  initial
increase in SNC from the new definition.  In addition, this delay
will allow the time necessary to make changes in PCS to automate
the calculation and reporting of the new SNC.

     I expect the Regions (and States), over approximately the
next two years, will take formal enforcement actions to reduce or
eliminate this increase in SNC.  Until the changes are made in
PCS, I request that the Regions and States use the Non-Monthly
Average SNC software, which will soon be made available' to you by
OECA, to temporarily identify Non-Monthly Average SNC facilities.
Where appropriate, I request that Timely and Appropriate  ("T and
A") enforcement action be considered while PCS changes are being
made.

     Also during this interiir. period, it would be useful. to
report SNC counts for Non-Monthly Averages along with other
quarterly enforcement reports.   Although this interim reporting
is optional, the data would help WED in developing its
recommendation on a revision to the standard acceptable level of
SNC  (plus "T and A" and the Exceptions List) which Headquarters
uses in routine Regional performance reviews.  In revising this
bench mark level of acceptable SNC,  the goal will be to draw a
reasonable balance between resources and the new SNC rate.

     Once the changes in PCS are completed,  all categories of SNC
will be integrated into the routine quarterly SNC count and will
appear on the Quarterly Noncompliance Report (QNCR).  Also, I
wish to remind the Regions (and States)  that they may remove SNC
indicators in PCS for those occasional violations that
technically meet the SNC criteria but, in reality, do not
constitute a significant infraction.  Such deletions must be
documented in a facility's file.

     As appropriate,  these and other implementation issues will
be discussed with the Regions in the near future.  If you have
any questions regarding the SNC criteria or their implementation,
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please contact Brian Maas, Acting Director, Water Enforcement
Division at  (202) 564^2240 or have your staff call Richard
Lawrence at  (202) 564-3511.  Again, I wish to thank you and all
the workgroup members for your outstanding efforts and
perseverance, and look forward to working with you on
implementation.

Attachments

cc:  Water Enforcement Branch Chiefs
     Michael Cook
   '  OECA Office Directors
     Fred Stiehl
     Workgroup Members
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                                              ATTACHMENT I
           Significant Noncompliance (SNC) Criteria for
    National Pollutant Discharge Elimination System Violations

 1.    Effluent Violations  of Monthly Average  Limits

    .  a.   TRC Violations

      A 40% exceedance of  specific pollutant  limits  listed  in
 Exhibit A or a  20% exceedance of a specific  pollutant  limit from
 Exhibit B at a  given discharge point for  any two or more months
 during the two  consecutive quarter review period is SNC. .

      b.   Chronic Violations

      Violation  of any monthly effluent limit'at a given pipe by
 any amount for  any four or more' months during the two  consecutive
 quarter review  period is  SNC.

 2.    Effluent Violations  of Non-Monthly Average Limits*

      TRC  and chronic SNC  criteria are the same as for monthly
 average violations as described in section 1. a. and b. above.
 However,  the following caveat also applies:

      When a parameter has both a monthly average and a non-
monthly average limit, a  facility would only be considered in SNC
 for the non-monthly limits if the monthly average is also
violated  to some degree (but less than SNC).

 3.     Other Effluent Violations

      Any  effluent violation that causes or has the  potential to
cause a water quality or human health problem is SNC.

4.     Non-Effluent Violations

      Any unauthorized bypass,  unpermitted discharge, or pass
through of pollutants which causes or has the potential to cause
a water quality problem (e.g.,  fish kills, oil sheens)  or health-
problems  (e..g.,  beach closings,  fishing bans, or other
restrictions of beneficial uses)  is SNC.   In the case of POTWs
implementing Approved Pretreatment Programs,  failure to implement
or enforce those programs is SNC.


*NOTE:  Non-monthly average SNC applies to all maximum and all
average (other than monthly average)  statistical base codes.
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5.  ' Permit Schedule Violations

     Any failure to start construction, end construction, or
attain final compliance within 90 days of the scheduled date is
SNC.  Also, all pretreatraent schedule milestones missed by 90
days or more are SNC.

6 .   Permit Reporting Violations

     Discharge Monitoring Reports, POTW Pretreatment Performance
Reports,  and the Compliance Schedule Final Report of Progress
(i.e.,  whether final compliance has been attained) that are not
submitted at all or are submitted 30 or more days late are SNC.

7.  Enforcement Orders

     a.   Judicial Order

     Any violation of a Judicial Order is SNC.

     b.   Administrative Order (AO)

     Any violation of an effluent limit (or other water
quality/health impact)  established in an AO is SNC.   However,
when an AO limit is as stringent as an applicable permit limit,
the facility is SNC onlv if the permit effluent SNC criteria,  set
out in number 1-3 above,  are met.

     Any unauthorized bypass,  unpermitted discharge or pass-
through of pollutants which cause or has the potential to cause a
water quality problem or human health problem is SNC.

     Any schedule or reporting violations listed above in
sections 5 and 6 respectively are SNC.

     Any violations of narrative  requirements or any other
violation of concern to the Director is SNC.
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                             Exhibit  A
                    SNC  Conventional  Pollutants
                     (40%  exceedance  of  limit)
 Group  I  Pollutants-TRC=l.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
                            Exhibit B
                       SNC Toxic Pollutants
                     (20% exceedance of limit)

Group II Poilutants-TRC=l.2

Metals  (all forms)
Other metals not specifically listed under Group I

Inorganic
Cyanide
Total Residual Chlorine
Crgani cs
All organics are Group II except those specifically listed
under Grouc I.3
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III.
-------
III.  ADMINISTRATIVE ENFORCEMENT
-------
III. ADMINISTRATIVE ENFORCEMENT



     A.  ADMINISTRATIVE COMPLIANCE ORDERS
-------
-------
                                                                  III.A.I,
"Effect of Compliance with Administrative Orders", dated June 1984.
-------
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             UNITED STATES ENVIRONMENTAL r?»OT£C7ISN AGEN'CY
                         WASHINGTON. D.C. 2CZ60
                                                            erricc er
MESORAKDUM
SUBJECT:  Effect  of Compliance With
          Administrative Orders
FROM:     Colburn T.  Cherney.
          Associate General
          Kater Division
TO:       Rebecca Hanaer.  Director
          Office of.-VCater  Er.fcrceaent
            and Peraits  (E\'-335)

     In a Jirae 5, 1964 aeaorandian, you asked whether coapliance
vith en edciniscra'tive order  precludes/ as a natter of law,
further enforcement action on the  underlying violation.
Such compliance does not preclude  enforcement.  See, e.g.'.
United States v.  Earth Sciences.  599 F.2d 368,  375-76 (10th
Cir. 1979).   However,' the  administrative order,  and .the
discharger's compliance with  the order,  are factors that are
likely to be assigned significant  weight when the reviewing
court fashions a remedy in the enforcement action.
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-------
                                                                  III.A.2.
"Use of Stipulated Penalties in Administrative Orders on Consent under the
CWA", dated September 6, 1985.
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-------
       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                     WASHINGTON, D.C. 20460
                        SEP   6 1985
                                                   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
          tor Water

TO:       Paul A. Seals
          Regional Counsel, Region VI


     I am responding to Region VI 's request for specific guidance
on whether the use of stipulated penalties in administrative
orders is permissable 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) tnat 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 enforceability
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. §5516 and 519 and the spirit of the Memorandum of
Understanding between EPA and the Department of Justice that
the Department settles and compromises claims ot the United
States which EPA is to briny 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, the government will not be limited to the penalties
contained in the AO.

     If a Region chooses to employ the practice where the
requisite criteria can be net, .it shoula 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 the 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
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                                                                  III. A. 3.
"Remittance of Fines and Civil Penalties" dated April 15, 1985.  See GM-38.
-------
-------
                                                                  III.A.4.
"Recommended Format for CWA Section 309 Administrative Orders", dated July
30, 1985 (Incorporated in III.A.5).                       -
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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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-------
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON. O.C 20460
                     SEP *9 1886

                                                        WATM
 MEMORANDUM
 SUBJECT:   Reference Document  on  Guidance and Procedures for
           Administrative  Orders  Issued under Section 309 of the
           Clean Hater Act

 FROM:      Jamejr45^aerT*Di rector
                e of Water Enforcement and Permits (EN-338)
 TO i        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 noti'fy
you as changes  are made.

     We would like to  thank all those parties from the Regional
Offices and the Off ice of Enforcement and Compliance Monitoring for
 their comments  and the extensive reviews they provided.  In addition
 if you hav« 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 301»
   of the Clean Water Act
      September 29, I9«fi
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  PFFERENCE DOCUMENT - Guidance and Procedures for Administrative
    Orders Issue* Under Section 3fl9 of the Clean Batter *ctt


  I. Guidance

       A. Recommended Format 'or Administrative Orders (AO/s) -
          »*
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SECTION I
GUIDANCE
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•• 1
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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON. O.C 204*9
                        JUL 301985
 MEMORANDUM
                                          *               •
 SUBJECTtx-tecommended Format for Clean water Act
        •   Section 309 Administrative Orders

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

 TOi        Water Management Division Directors
           Regions 1 - 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
Mater 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 utilised
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
utilised by  the Regions* should result in more effective and
even-handed  national enforcement through Administrative Orders.
                            I-A-1
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      Zn addition to the Recommended Format, we arc forwarding the
 Checklist on Administrative orders (Attachment 2).  The Checklist
 should-bo use* for reviewing EPA and State-issued AO's.  There will
 obviously bo some variation among States with regard to AO'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 4oVL9?5
 that was developed by the Office of Water enforcement- It should
 bo noted that the statute was revised twice since 1973.  in
 particular,  the new guidances discourages use of successive AO's
 for  the same violation}  clarifies which legal authority (e.g..
 Sections 308 and 309) EPA should cite as the basis for certain
 requirements imposed through an 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*

      Zn the  coming fiscal year, the Office of Water Enforcement
 and  Permits,  with extensive coordination with the Office of
 enforcement  and Compliance Monitoring (OECtt), will develop further
 information  on the use of Section 309 Administrative Orders*  Some
 of those documents will  covers  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 o€ Section 309 to require information
 {including use of show cause proceedings).

      Zf you  have any specific questions on the above, please
 call me (FTS-475-8488) or Kill Jordan, Director, enforcement.
 Division (PTS-475-8304).  The staff contact is Virginia Lathrop
 (FTS-473-8299).

Attachments
                            2-A-2
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                                                 ATTACHMENT 1
         Racommandad Format for Clean Water Act Section 309
                       Administrativa Orders

      Tha.following is the recommended format and content  for an
 Administrative Ordar (AO).  Examples and  suogested wording are
 ineludad at various points in th« discussion and in .the sairola
 AO (Attachment 1-0).  Adherence to tha Recommended Format should
 rasule in more effective*and avanhandad national enforcement
 through Administrative Ordars.
                            Introduction
      Tha following should ba followed for tha venue,  title,
 dockat idantifieation and praaabla paragraph.            :
                           UNITED STATES
                 ENVIRONMENTAL  PROTECTION AGENCY
                            REGION _—-(
 IN THE MATTER  OF                           DOCKET NO.   XI-S4-06
 Wastavatar Traatmant Works 14
 Sludaa Rivar Pollution Control  District
 Sludga Falls*  Columbia
 PROCEEDING UNDER SECTION             '                         .
   309(a)  of tha
 Claan  Watar Act, 33  U.S.C.                 FINDINGS OF VIOLATION
 Saction 1319(a); in  ra                            AND
 NPDES  PERMIT No.•                          ORDER FOR COMPLIANCE
     •Tha  following  FINDINGS ara vada and ORDER issuad pursuant
 to tha authority vastad in tha  Administrator of tha Unitad States
Environmantal  Protaction  Agancy (EPA)  undar Saetion 309 of the
Claan Watar Act, 33  U.S.C.  f!319,  (hereinafter tha Act) and by
hia dalagatad  to the Regional Administrator of EPA, Region XI
 (and radalegated by  tha Regional Administrator of Region  XI to
tha Director, Watar  Management  Division,  Region XI)."
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                          Venue and Title

      The Region identification is  included  to  establish tht
 specific venue of the issuing authority.  The  full address of
 the Region is to be in the letterhead  or under the Regional
 Administrator's (or his designee's)  signature  to  the Order and
 on the blue back cover (which is optional).         •.   .  -

                           Docket Number

      To identify the proceeding, a docket number  is reo*uired.
 To avoid confusion*  the NPDCS number should not be used as the
 Docket Number.   However* the  NPDCS number,  if  any, should be
 referred to under the proceedings  identification  in the title.
 The docket number "XI-M-06"  identifies the Order as being the
 6th Order issued in 1984 in Region XX.   An  Administrative Order
 docket should be kept separate from any other  docket.  However,
 if a common docket is kept then a  prefix should be added to the
 docket number,  e.g., "XI-AO-84-06".

                         Preamble Paragraph

      The preamble paragraph is important not only to establish
 the Administrator's authority to issue the  order  but also to
 establish the delegation of authority  to the Regional Administrator.
 Zf 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.  Zt should be noted that
 there is no authority to redelegate this authority to other CPA
 Regional staff  below the Division  Director  level.  Zf the
 redelegation is asserted hero,  the paragraph should be amended
 by addings

      "...  and redelegated by  the Regional Administrator of

Region XI  to the (undersigned)  Director,  Water Management Division,

Region XZ^.

     The Administrative Order can  be signed by a  duly authorized
Acting- Regional Administrator or Director.   However, the Agency
should-be  prepared to show that the person  signing as Acting
Regional Administrator or Director has the  requisite authority
to  sign  the Order*
                             Z-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.  Zn 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
—-—teous facts.  The Findings should speak to all the pertinent
      and law much as a complaint in a civil action doe's* .With
   extraneous facts.
   facts and law muc«§ «• • w>»^*«»»«» «•• <• «•**•« v*»h«w» «•«»»»»•. ••*&!
   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 ease 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
1   the violator discharges to "navigable waters* under Section
   502(7) of the Act through a specific point source as defined in
   Section 502.                                  *

                          lasia of 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 en  ,
   the orderee.  Next* the evidence or basis for the specific
   violation (such as DMR* 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) datss are known or where there is a continuing
   violation say "on or about" or "beginning on or about".1
   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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      whera 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 eases,  the
 lack of receipt of the required information  must sarva as -tfc*
 basis of the violation.  Section 308 violations have additional
 requirements as-described below.                .    •'^

                     CWA Saetion 308 Violations       ''.''••.

      Administrative Ordars issuad for violations based on a
 failura to submit information requested under Saetion 308 of  tha
 Act do not taka affaet until tha parson to whom it is issuad  has
 had an opportunity to eonfar with tha Administrator (or his or
 har designee) concerning tha alleged violation.  (Saa CWA
'Saetion 309(a)(4)).  It-is assantial that such parson ba provided
 with a reasonable opportunity to eonfar.  Any ordar issuad for a
 Saetion 30S violation either exclusively or  in conjunction with
 other violations should provide for a parted of time in which
 tha ordaraa may eonfar with an authorized parson dasignated in  *
 tha Ordar.  If an opportunity has baan provided prior to tha
 issuanea of tha ordar, tha ordar should so stata and sat forth
 tha documentation of tha opportunity to eonfar and tha outcome
 of tha conference, if any.

                     Prior enforcement Contact*

      Administrative Ordars frequently sat forth prior eontaets
 with tha ordarea 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 aetion.
 This can ba dona by cataloguing tha meetings, letters, telephone
 calls,  etc., made in an attempt to secure, voluntary compliance
 or by stating that rapaatad attempts ware made.  Tha repeated
 attempts may ba 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 (sea Attachment
 1-A).

                           Other Findings
        '
      In certain circumstances it may ba necessary or usaful to
 include other findings which are supportive  to tha specific
 requirements of tha order (a.g., "the company's treatment works
 are currently eapable of meeting the affluent limits contained
 in its  permit* or 'the POTW has adequate authority to .enforce
 the categorical pretreatmant standards'). Whether or not to
 include such statements must be determined on a ease 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 bet  "Based on the foregoing Findings* and
 pursuant to the authority of Sections 308 and 309(a) of the Act,
 it is hereby orderedtB

                        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.   Zn cases of an interim compliance
 schedule or an operation  and maintenance requirement the time
 for compliance may not exceed thirty days.   Zn cases 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 violations)) consistent
with the statutory language.

      Although some Orders have include** 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 reporting
 compliance with the terms of the  order to  the  issuing authority.
 The order should- contain requirements for  reporting on the"
 comoliance 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 l-D), as well as  a. sample blue'back
 (Attachment 1-C) and cover letter (Attachment  1-1).

                       Additional  Provisions

      Zt 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 snould be used by all the Regions for every order issued.
 Zn addition to prompting 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)s

      •Failure* to comply with this ORDER  or the Act nay result in
      civil penalties of  UP to $10,000 .per  day  of violation,
      ineliqibllity for contracts, grants or loans  (Clean Water
      Act*  Section SOS) and permit suspension**

General Disclaimers!

      •Zssuanee 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.*
                                Z-A-8
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      •Compliance with eh*  terns and conditions of this ORDER
      shall not be construed to relieve the orderee of its
      obligations to comply with any applicable federal, state
      or local law.*                               •

 Administrative Action Resulting in Xneligibility foe federal
  'Contracts*  Grants or Loans:                      •  •   '

      •Violations of this order may result in initiation of Agency
      action to prohibit the facility from obtaining Federal
      contractSf  grants, or loans pursuant to Clean Water Act,
      Section  508,  E.G.  11738,  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  thatt

      •this ORDER shall  become  effective upon its receipt by (or
 service upon)  said  COMPANY."

      For Section 308 violations where an opportunity for conference
 before the ORDER can become effective is reouired by section 309
 and this was  not done prior to the issuing of the ORDER, the
 last  paragraph should read:

      "The  COMPANY shall have the opportunity, for a period of
 f             ) days  fron receipt of this ORDER, to confer with
 the following  designated Agency representatives  Mr. N. Force,
 Director,  Water  Management  Division, Environmental Protection
 Agency, Room  5013,  Region XX,  Old National Bank Buildino, 1414
 fain  Street, Brewsterville,  Centralia, 11101, (555) 123-4567; ".
 jnless the Agency official  issuing the Order decides otherwise,
 ihis 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 be in the hands
of the designated Aoency representative, prior to the expiration of
said
                       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.
                             l-A-9
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                       Other Considtrations

     The  us* of legal blue-back it 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 fs issued to a
 Corporation, a copy of the Order shall be served on appropriate
 corporate officers*       *                          ~  ~    .

     As in court actions* the order should be retained and olaeed
 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.                           ,      •                      .

                    rollow-uo 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 aporopria
 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-C is an example of what
a close out letter might look like.                      '
                              I-A-10
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                                                  ATTACHMENT I -A
                    Prior Contacts with
D«spit« repeated writttn «nd telephone eeeiuest»  -« »
set out in th. log attach* as Exhibit    S3 5id!VSI*  f!flly
by r.f.r.nc., th. COMPANY, in violation"of s.ctifl ?oS  C5 h'reof
Act, has net suppli.d th. r.qu.st.d info^at              tht
LOG SAMPLE

     12/04/83
     12/07/M  308 Utt.r ..nt to

     n/io/,4
                                           lBSp.ettOB
    os/os/84
                         I-A-U
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                                                 ATTACHMENT l-£
          21.  1915
 CERTZPXCO HAIL -
 RETURN RECEIPT REQUESTED

 M».  Alice Smith*  Oirtetor
 Sludge River Pollution Control
   District
 13 Plain  Street
 Sludge Palls ,  Columbia 1234S

 RCs   NPOES Permit No. CL0003456

 Dear Mi.  Smith:                                                v

 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 pemit.  Specifically, during 1984 SRPCD consistently
 violated  its effluent limitations on ammonia and phosphorus and
 intermittently violated effluent limitations for biochemical
 oxyqen demand  and total susoended 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
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 have* any questions concerning this natter, please contact
Mr. Jones* an engineer in the Permit Compliance Section, at
222-3922.

Sincerely yours*
Prudence Purewater
Regional Administrator

Enclosure                              .

cc:.  State Division of Water Pollution Control
     State Department of the Attorney General
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                                    ATTACHMENT  l-C
            UNITED STATES
   ENVIRONMENTAL PROTECTION  ACFNCY
               REGION _
   IN THE MATTER OP

     SLUDGE RIVER  POLLUTION CONTROL
       DISTRICT
         SLUDGE FALLS,  COLUMBIA
                       PERMITTEE0

   NPDES PERMIT NO.  CL00034S6*

     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  Adninistrator
     Environmental  Protection Aoericy
     Region XX
     Federal Building
     Hokum, Centralia  12345
•*  Where  Permit  has  been  issued.

•• May also have proceeding under
   33 USC 1318.
          I-A-13
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                                                    ATTACHMENT  l-o
                                        \
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             REGION XI
 IN THE MATTER OF                 )      DOCKET Number AO-aS-13
 Sludge River Pollution      .     )      FINDINGS  OF VIOLATION
 Concrol District                 )
 Wastewater Treatment works M     )               AND: :
               '                   )
 NPOES Permit No CL003456         )
                                  )      ORDER FOR COMPLIANCE
 Proceedings under Section        )
• 309(a) of eh* Clean Water Act,    )
 33 U.S.C. S1319(a)               )

                         STATUTORY AUTHORITY

 The following PINDIMGS arc mad* and ORDER  issued  pursuant  to th«
 authority vested in the Administrator of the Environmental Protec-
 tion Aoeney CEPA*) by Section  309 of the  Clean Water Act/ 33
                                            i
 U.S.C. 51319* (the Act)* and by the Administrator delegated to
 the Regional  Administrator of EPA* Region  XI.

                             FINDINGS
 1.    The  Sludoe 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 Kiver 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  S02 of the Act*  33 U.S.C.  51362.
-------
 The discharge of pollutants by any person into the  waters of
 the United States, exee'pt  as authorized  by an  NPDES permit,
 is unlawful under Section  301(a)  of the  Clean  Water Act.
                                                •  >
 On January 22,  1981,,the District was  issued National-
 Pollutant Discharge elimination System (NPDES) Permit Number
 C100034S6 (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,
 mi,  and will  expire  on February 22,  198*.
 The permit authorizes  the discharge of pollutants into the
 Sludge River, in accordance with  effluent limitations and
 other  conditions contained  in the Permit.   The limitations
 contained in Special Condition Al of the Permit recuire the
 plant  to  achieve monthly average  limits  of 7 mg/1 for BOD
 and  TS5,  1 mg/1  for total phosphorus (Total P)  and  1 ng/1  *
 for  ammonia nitrogen (NH3-N).
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
        •  * • f                                       *      ,
        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;
-------
         b.J  The District violated the limits on daily maximum
              concentrations thirty times Cor NHj-N and twenty
              tines for Total P over a six month oeriod*  •
         e.)  The District violated average monthly Concentration.
                                                       *
              limits for NH3-N and Total P each month ov«r 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-M and Total P.  The inspection
     report was completed on December 8, 1984 and i* 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 1inits for NH3-N end
     Total P if properly operated in accordance with Condition 02
     of the permit which requires maximizing the removal of
     those pollutants*
9.   Based on the above, X find that the District is in violation
     of Section 301 of the Act* 33 U.S.C. 51311, and permit
     conditions implementing that section contained in a pernit
     issued under Section 402 of the Act* 33 O.S.C. 51342.
                             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 HEREBY ORDERED:
                     .                      -     . •
 1.    Within  sixty days of receiving this ORDER* the District
      shall submit to EPA a plan for achieving conolia-nce
      with the effluent limitations on NH3-N, Total P, BOO,
      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 Attachnenc
     A for NH3-N and Total P as an .intermediate step toward
     achieving final compliance*  These interim effluent
     limitations shall terminate on May 1, 1985.  Durinei the
     time period that the interim effluent limitations are   '
     in effect, all requirements and conditions of the
     Permit remain fully effective and enforceable.
4.   By May 1, 1984, the District shall have implemented
     any operational changes necessary to meet the permit
     effluent limitations for NH3-N and Total P.  The  District
     shall comply with all effluent limitations contained  in
     the Permit by May 1, 1985.
                   /
                         I-A-17
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 S.    Where  this ORDER  rtauirts a specific action to be per-
      formed within a certain tin* frame, the District shall
      submit a written  noties of compliance or non-compliance
      with each deadline.  Notification shall 6*; mailed within
      seven  days after  each required action.     •• '
                                                  •
 6.    It 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 perforn  the
         required action*
All reports shall be in writing and addressed as follows:

            Director
           Water Management Division
           0.S. Environmental Protection Agency
            Federal Building - Room 13
                                            *
           Hokum, Centralia  12345
                         I-A-18
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            owe, ,0., not con.titut. . ..lv.r „ .


       of tt. t.r»..nd condition, of th. Ol«rt..,. p.ralt

       •hie* r.«in. in full f8rc. .„„

           rt,ht to ...k  .„,  .nd


      S.ction.
                                  oe the Act for any violation
      cited in this ORDER.              .              *°l«tion



 8.   Issuance of an Administrative Order shall

      «n election bv
      to ...» p.n.ltt...  tt ..... r eth.r .ppreprat.


      und«r th« Act.
 >•   This order shall  become  .ff.etlv. upon  ^  ^


     receipt by the District.
Dated this                   .
           	  day of
                       Signed:   __M^—-»—___-_—.
                                'rudence Purewaeer
                                «_—j — •  - -
-----.... ru«vw«^«p

Regional Administrator

2*!* EfA» R«9*°n XI
Federal Building

Hokum, Centralia  12345
                          I-A-19
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  Mr. Adam,                                          *euch..nt 1
  R*
  Burning River, Centralia 12345



       ?SiJi*JratfV0 Ord«r «XX-AO-8S-0«
       (NPDES P«r»it NO.  1111H2)


       Mr. Adams *
                               Sinecrtly,
                               Director

                               waetr NaR«g0n«nt Division

eei  Compliance Information and Support Branch
     OWE? (EN-338)
                          I-A - 20
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                                                      ATTACHMENT 2
                  SAMPLE EVALUATION CHECKLIST FOR EPA's
        CWA SECTION 309 ADMINISTRATIVE ORDERS or STATE EQUIVALENT


  The purpose of this checklist is to serve as a guide for eevitv of
  State AO's or EPA's AO's.
1.
2.
3.
4.
5.

6.
•7.
8.
Region:
State:
Date Issued s
[ J Major
[ ] Municipal

Does the administrative



( ] Minor
r I Non-Municipal
Yes Mo
order contain a title? ( ] ( j
Does the order establish the venue of the
issuing authority? (i.e., identification of
EPA Region). 1 J f J
Does the order provide
issuing authority?
the address of the
f I t I
  9.   Does the order contain a standard docket
      number?  (i.e., X-AO-84-Oli  X«R«gion; AO»AOr
      84-Year; 01«Serial Nuieber).                        (I      t   !

 10.   Does the order state the appropriate statutory
      authority for issuing the order?  (i.e.* CWA
      Section 309(a) and where reports or information
      are required* Section 308>.     .                   (I      f   I

'11.   Does the order contain a suitable statement of
      delegation?  (i.e.. Delegation should correspond
      to' signatory of order).                            [  1      f   I

 12.   Does the) order identify the legal status of
      the violating party?  (i.e., legal status as a
      corporation, municipality, etc.).                  I  I      I   '
  These  ouestions are of particular interest for EPA issued
  Administrative orders.          •
                             I-A-21
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                                                                         Mo


      13.  Does the order describe the  legal  authority/
           instrument which is the subject  of the violation?
           (e.g., statutory provision*  regulatory provision*  ..
           if applicable, statutory authority for permit
           issuance, name of permittee, permit number, date
           permit issued, permit modification or extension,
           date previous administrative order issued, etc.).  {  ]      [  j

                                    Examples                       '

           (   ]  Statute                   ,'  •   -

           [   )  NPDCS Permit

      14.  Does the order contain a specific  finding that
           the discharger is in violation of  a specific
           statutory or permit requirement?                  [  ]       (   ]

      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.).                      (1(1

      16.  Does the order state, with reasonable
           specificity,  the nature of the violation?
           (e.g., type of violation, date,  evidence,
           •tc.).                                            I  1       I   1

                               examples

           [   )   Reporting or monitoring violation

           (   ]   Effluent limitation violation

           (.   ]   Violation of special permit  condition

           C   )   Pretreatmene violation

           I   )   Cnpennitted or unauthorized  discharge

           (   ]   Failure  to meet OAH/conscruetion schedule

           [   ]   Violation of a Section 308 letter

           t   I   Improper 0*M

           I   J   Other	.
     .                                  X-A-2Z

/  • NT       '  '
' * »  r.  .
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                                                         Yes
 17.  Does the order specify the duration of violation-,
      if known?                                 '     '•   I   J
      Estimated violation
•18.  Does the order document prior requests to the
      violating party for compliance with the legal
      authority/instrument?  (e.g./ telephone calls*
      letters* meeting, etc.).
•19.  Where the order is issued for a CHA Section
      308 violation does the order provide the
      violating party with an ooportunity for prior
      consultation?                                      [   ]       [.  j
 20.  Does'the order establish interim effluent
      limitations?             ,                          lit)
 21.  Does the order *et out clearly any specific
      steps which EPA/State wants the violating party
      to take to achieve compliance?                     (   J       f   ]
                             Examples
      [   J   Submission of monitoring reports               '.
      [   )   Compliance with existing effluent limitations
      I   J   Submission of pretreatment program
      [   ]   Submission of correction/compliance elan or study  evaluating
            compliance options
      I   ]   Compliance with existing O&M/construction schedule
      [   ]   Compliance with interim effluent limitation
                                    /                              •
      [   )   Compliance with categorical or general pretreatnent standards
      r   J   Other
 22.   Are the number of days reasonable for the
      type  of relief sought?                   .          PI       (1
                                l-A-03
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                                                                        No


      23.  Does the order contain a specific requirement   .
           and data for final compliance?                 *•••*[•  j       j  j
                                 *                            "
      24.  Does the order specify a eanner and tin* frame
           for reporting compliance with the terns  of the
           order to the issuing authority?     •               f  j       j  j

      25.  Does the order specify the effective date of
           the order?  (e.g., Dace of receipt* date of
           consultation* etc.).                               f  J       (   j

      26.  What is the elapsed time between the dates of
           violation and the date of issuance of  the
           order?  Zs the elapsed time reasonable?
           Number of days
     •27.  .Who is the signatory of the order? '(Choose
           two or less).

           [   J  Regional Administrator

           [   ]  Regional Counsel

           [   J  Water Division Director

           I   J  state Water Pollution Control Officer

           [   J  Other	     .
'.'10
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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 reouirement 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 action
  including a penalty of up to $10,000 per day, ineligibility  for
  Federal contracts, grants and loans and suspension of the permit*

• The Order portion .of the Guidance and the Sample AO  indicate
 .that Orders which include milestones should include  reporting
  requirements  under Section 308 of the Act.
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I. B.     GUIDANCE ON SELECTED TOPICS RELATED TO





  LIMITATIONS AND USE OP ADMINISTRATIVE ORDERS





    UNDER SECTION 309 of th« CLEAN MATER ACT
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 "raft Guidance on  Selected Tonics Belated  to Limitations and rise
 of Administrative  Orders Under'Section  309 and  Information"
 Recuirements under Section 3Q« of the Clean Mater *et
 I.   Administrative Orders on Consent

 Introduction

      In  recent months a few Reoional Offices of RPA have discussed
 the  possibility of issuinn Administrative Orders on Consent (AOP):
 that is, an Administrative Order  issued under Section 309 of the
 ''lean water Act, which is fen sinned not onlv by the P-eoional
 Administrator (or his desionee) but also by the responsible party
 for  the orderee who acknowi.edoes  -Jurisdiction, truthfulness of
 the  findings and appropriateness  of the relief.  The Purpose of
 the  AOC would tvnicallv he the same and contain the same provi-
 sions as anv unilaterally issued  Administrative Order dealino
 with violations of a pen*it or statutory remrirements.  The Admin-
 istrative Order would be the product resultino from neootiations
 with  the Orderee and would contain findinos 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
 conserruenees of noncomni. iance: the AO would set fort" fully the
 violation and the requirements 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.  It is anainst Aoencv policy for the A.or
to waive PPA's authority to pursue other enforcement alternatives
either for the violations servino as the basis of the order, or
 for  future violations.

Advantages of AOC

     The AOr can provide an additional approach to brino a violator
into compliance in the followino  wavs:

     1.   The AOf* creates a record of the orderee's aoreement to
         milestones and an enforceable schedule of compliance.

     2.   The AOC has educational  value.  Tf there are negotiations
         to develop the A<">C, hot* EPA and the orderee mav benefit
         from the exchanne of. information.  Such information
         mav be beneficial to ?PA if a subseouent enforcement
         action is remiired.

     3.   There.mav he osvcholonical advantage to havino the
         orderee commit to compliance schedule milestones and  a
         final compliance date (as lono as the approach is not
         coercive to the dearee that the orderee is oblioed to
         do more than renuired by law).
                               I-p-1
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       4. If  the AOC has  to he enforced throunh -judicial action, it '
         miaht he used as an admission HV the ^e'endant of those
         violations covered in the  findinas.
                                                           •«

Limitations  o* an AOC
                                                        ^ .*
     Because an AOT minht under some circumstances reouirre *
additional time for neootiations, the AOC may not he annronriate
for manv cases where prompt response is reouired such as when
violations would cause environmental harm or endanaerment o*
health.  However, where  EPA is seekinn commitment to a  lono-term
and more complicated compliance schedule, an AOC miaht  have more
value, and FPA miaht pursue * separate AOC 'or that Purpose.

     .The AOC should not  result in unwarranted delav of  action HV
EPA.  P»S recuires that  noncomnliance situations be.responded to
with prompt enforcement  action.  T* the situation is appropriate:
for an AOC, developina the terms of an AOC should he prompt to
ensure that  noncompliance i* not delaved hv the process,  ^inallv,
in the case  of a violation of an AOC, as with a unilateral AO,
the presumption is that  EPA will first consider pursuino a ludicial
enforcement  response.
                            I-B-2
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 Specific Oses of AOC

      Some typical,  though  hypothetical,  situations, where ah AOC
 might be useful are the  followings                    .

      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 OECN  will  periodically provide updates  of guidance
on AOC.  The AOC should'  be used  to impose as strict a compliance
deadline as  possible and not to  provide  for a permissive deadline
or requirement.

     In level  of response  and  escalation of enforcement response*.
art 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 Ose of Administrative Orders for Unauthorized and
     unoeemitted Discharges

 Summary                                                  •

      EPA. may not rely on AOs as surrogate permits to address other- -
 wise unpermitted discharges.  For AO's which are issued addressing
 unauthorized, unpermitted discharges, the following criteria
 should be met*  ,           .               .          •  •       .

 - EPA should first consider whether to require immediate cessation
   of discharge.

 - The AO should  contain a date certain by which the discharger
   must apply or  reapply for a permit. (No more than 60 days to
   apply is typically  needed.)  Interim limits should be set in
   the AO only for the briefest time possible leading up to final
   compliance and would probably be most 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 NPDES Permit  (especially in the case of minor dischargers
 or applicants for  a general permit).  These letters or AO's
 provided terms*  conditions* and interim limits for the discharge.
 However in Nunan Kitlutsisti vs. Areo 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      -      .
-------
 the process with issuance of  an AO or letter.  The Court  in  the
 above ease had the follow!no  objection to  the  "creative administra-
 tive techniques".

      "Moncomnliance wit*  the  statute  has meant that  third parties,
 the companies... have  h»en needlessly sublected  to citizen suits
 which tbev are powerless  to avoid. It has also  denied other
 users of Norton Sound's water resources their  statutoevsr-ioht to
 comment on and object  to  those oronosed discharoes." ''• •

      Administrative Orders cannot  be  used  as a discharcre-authori?inn
 mechanism to fill the  nap between  the time of  AO issuance and
 some indeterminate future date when an individual nermit  or
 neneral permit might he issued.  EPA  mav not relv on an AO to act
 in  Place of an NPOFS nermit.            ,

      finder certain circumstances it mav he necessary to issue an
 AO  even thouoh a strict readino  of the Act mioht reouire  a ceasina
 of  the discharae and no resumption of the  discharae  until a
 permit is  in place,  niseretion  should he  used in estahiishino
 interim limits throuoh an AO  as  lonn  as the AO is not  issued as a
 convenient method for  CPA to  deal  with an  NPDRS  permit hackIon,
 and there  is a clear justification for allowino  the  diseharoe to
 continue until the oermit is  issued.   When used, compliance
 schedule deadlines and interim limits must be  reasonably
 strinoent.   The AO should also state  that  the  EPA mav  initiate a
 civil  or criminal enforcement  action-seekino penalties and other
 appropriate relief,  if the discharge  does  not  cease  or a  oermit is
 not  obtained  within the reouired time.

      It  is  worth notino that  there has been a  chance from the
 early  stanes  of implementation of  the Act* In neneral when
 nuidance 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 he  shut down for     '
 health  reasons,  interim limits were a way  of dealina with the
 discharaer.   Since  the NPDES  nronram  has been  in existence now
 for  thirteen  years,  these situations  are less  commonIv encountered.
 °ut  in. certain cases AO's  with interim limits  are used to address
rtischaroes  without a permit denenrtino on health  issues, type of
 Facility, how much  construction  is needed, environmental  effects
of shut  down, and the *inal  compliance schedule.

     It  is  also worthwhile  notinn  that where a diseharoer is
 recuired to apply for  a permit,  the application  should be sent  in  •
 within 60 days.  -                                    :
                          I-B-5
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    * Proader Oaaoe of Section 30ft in  the  Administrative Order


 Authority to Impose gcnnrtinn ^emiirement8  in  AOs

      AOs should cite Section 308 wh«n inmost no renortina
 ment9, ineludino those associated with sneeific steps. *nd 'milestone!*
 in a compliance schedule.   The stronoer leoal  authority-for
 imnosino these reportino requirements actually is Section  SOP o'
 the riean Water Act, rather than Section  309.   The Order should
 specify the manner and timeframe for  renortinn on compliance to
 the issuina authority.  The most common format is to cite  Section
 30ft and Section 309 as a basis in the introductory nararrranh nf
 the Order portion 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 "Shew Pause "earinos*
                                             i
 In the past*  $30* of the Act has been cited  to reouire members
 o' the reoulated community  to attend  "show cause hearinns" or
 "show cause meetinos" to explain records  or  provide direct testimony
 hy 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 $309 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  speakina is voluntary
 at.all times.   Under Section 30ft (or  Section 309), there is no
 authority to  remitre 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 $ 309  sanctions solely 'or
 failure  to attend a  meetino should not be made.

     The Aoeney is on strongest leoal footino  when it characterizes
 these,"hearinos"  as  an opportunity for the alleoed violator to
 nrovide  oral  explanation o* information relevant to a potential
 enforcement matter*                         ,

 r?ae o*  Section 3Qg in Pretreatment Enforcement anainst Industrial
 Users

     In  pursuinn  an  enforcement action (particularly a  1u*ictal
 enforcement action)  aoainst an industrial user for violations of
 Pretreatment  standards,  ppA typically should use a Section 30R
 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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More active us* of  section  308  letters  is  particularly imoortant
'or nretreatment eases because* unlike  direct NPDES discharners,
EPA does not have a set  of  D»Rs which can  easily establish a
clear track record  of violatino conduct.   Where EPA can only
introduce  into evidence  one or more  isolated sampling renprts,
the oovwmment's case is much more vulnerable to 'actual cballenne*
which a defendant miaht  raise (e.o., the oossihilitv of inaccurate
sampling* unset* or isolated noncomnliance).  As a result, EPA
should evaluate the need for obtaining  additional waste>rater
monitorino data from an  industrial user throunh a Section 30P
letter before referring  a nretreatment  enforcement case to
Department of Justice.
                              I-B-7
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Z.C.   LISTING OF OTHER EXISTING GUIDANCE





         ON ADMINISTRATIVE ORDERS
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         LIST OF OTHER GUIDANCE ON ADMINISTRATIVE ORDERS


     The following documents and memoranda,  among others*  may be
of interest to the reader, althouoh they do  not appear in  full
text within this reference document.  They may also be of ge
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 Hater
       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.  1319UK3) and (a)(4)J*" 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

     • 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*1*
       Auoust 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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XXX.
     B.  ADMINISTRATIVE PENALTY ORDERS
-------
-------
                                                                   III.B.I.
"Guidance on Class I Clean Water Act Administrative  Penalty Procedures",
dated July 27, 1987 and noted at 52 FR 30730 (August 17, 1987).
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      \      UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      '                 WASMIN6TON. O.C. 204«0
                             01. 27B87       -
MEMORANDUM            '
SUBJECT:  Guidance on Class I Clean Water Act Administrative
          Penalty Procedures
PROM:     Thomas L. Adams, Jr.
          Assistant Administrator for Enforcement
            and Compliance Monitoring

          Lawrence J. Jensen
          Assistant Administrator for Water
TO:       Regional Administrators, Regions I-X

     EPA will use the procedures set forth in the guidance which
follows to issue Class Z 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 Z
            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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                              -. 2 -


 126.108     Hearing Procedures   •

 126.109     Record of Rearing

 I26.:i2     Peco.T-e-.'i«'i Secisisr. of Presiiir.

 :26.:il     ?:««! Crier -si  t*e Airir.istratar

 126.112     Petitions to Set Aside an Or-Jer
126.114     Payment of Penalties Assessed

5126.101  Purpose

     This s-5?art sets 'forth procedures for  initiation and
adr.ir.istrj-icn -f Class  I ainnistrati-.-e penalty orders under
Sector. 3:3.'c.) of tr.e Clean Water Act (CWA), 33 U.S.C. 1319(g).

S126.1C2  Initiatitr-. of  Action, PuSIie Notice and Opportunity
          to Ccffffer.;

     (a)  If the Administrator finds that respondent has violate •,
Section 301, 302, 3C6, 30". 308, 318 or 405  of the Clean Water
Act, or has violates a»w perr:t condition cr limitation irpl-r-p-.t-
:ri<; any cf s~ch sections in a peraut issued  under Section 402 of
the Clean Water Act by the Administrator or  ay a State, or  in a
permit issued under Section 404 by a State,  the Administrator
r.ay ;ssue 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 sane 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 t.-.ese
procedures and (3) which shall be immediately effective.  Nothing
in this Pact •havll stay  the effectiveness of administrative orders
issued by til* 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 consent
on the proposed order, in the form and manner set forth aelow.

          (1)  Such public notice shall allow 30 days for p. =1:7
cr-went prior to issuance cf a final order.

          (2)  The Administrator shall 'give  public notice =/
Bailing a copy of the proposed administrative penalty order r-:
-------
                      - ;    "   - 3 -

                (A) the respondent;

                (B) any person who requests notice; and""

                (C) the nost appropriate State aoency having
autnsrity under State law with respect to the matters which ace
the subject of the proposed order.  The Administrator shall also
have consulted with the applicable State authority ia conforrance
with Section 309(g),' 1) (A) before or at the time public notice is
civen 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 of -the opportunity to be put on the mailing
list through periodic publication in the public press and in
such publications as Regional and State-funded newsletters*
environmental, bulletirs. 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'option, 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
Adriniserator shall take such steps as are necessary to fulfill
the public notice requirements of Section 309(g)(4).  These
notice provisions do not apply to separate administrative orders
issued under Section 309(a)* which are immediately effective
except for orders issued for violations of Section 308* which
orders shall take effect after the person to whom they are issued
has had an opportunity to confer with the Administrator.

          (3)  All public notices issued under $$126.102(b)(2)(AJ-
(C), and (D) when applicable, shall be sent by first class mail.
All public notices issued under this subpart shall contain the
following minimum information:

               (A)  Name and address of the EPA office proposing
to assess the administrative penalty for which notice  is  ceing
c,iven;         .                             .

                »'3)  .'.'are and address of the respondent,  and  -r.e
person, facility cr activity against which the proposed  pena  ty
:s assessed;     .

                (C)  A brief description of the'business.cr activity
conducted by the person or facility or the operation  described in
the order, including, where applicable, the *"DES  permit  number cr
permit number for the discharge of dredged     fill material,  and .
issuance date;               .                           '       • •. i
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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:    .

                ••)  Sar*.  ajdress ar.d telephone number of an
 Agency  r*rres»-*.ative  from w^.or interested persons  ray cstain
 furtr.er ir.fsrraticn,  including copies of  the proposed order:

                rr*  A  stateme.-.t of the opportunity  to submit
 writ*.*- t-.-re-ts  -"• ttee prcptse-J irder.  t.*.e deadline fcr su5m;ss:cr.
 -.f s-r-  -rr.-e-.ts  w:cr. :s  t.*.;rty days after issuance of the notice,
 a^d tr.e rare  and  address  of t.-.e Hearing Clerk to whom comments
 should  oe sent:              -

                (G)  A  statement of the opportunity  for the respondent
 to rec'.est a  *ear:r.c ard  the procedures oy which the respondent r»ay
 request a *ear:.*-r

                'H:  A  rr:ef description cf the procedures through
 wf.icf. the pusii;  ray current an or participate in proceedings to
 rearr. a fir.al  1*r:s:*r: -r.  t.to.e order:

                fl)  The  location of the administrative record
 referenced :r.  5126.105,  t^.e tires at which -ne file will be open
 for pkisiic inspection,  and a statement that all information
 sutnttel ry  tre  resp-:-.i*r«: is available  as part of the admimstr*.
 tive record,  suspect  to provisions of law restricting the public
 disclosure of  confidential information.

          (4)   Cn t.*.e  sane- date that the public notice is issued
 or earlier* the Administrator shall send  to the respondent written
 notice  by certified mail*  return receipt requested, of the proposal
 to issue the  administrative penalty order* and a copy of the
 proposed order.   These materials should include the following
 information:

                (A)  The alleged violations, identification of the
 facility in violation* and a reference to the applicable law and
 regulations^
                •
                (B)  The  legal basis for EPA's authority to  initiate
 this proceeding (e.g., violation of an NPOES permit, etc.)

                (C)  The general nature of the procedure for
.issuing administrative penalty orders and assessing civil
 penalties, itrludirt? c?rcrt-f.:t:«s fsr pualic participation;

                .'2)  The  amrjrt cf .penalty which the Adrir.istratcr
 prrpcses t: assess  for t^e •viclatisr.s alleged:
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                              - 5 -


                (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
 who:*  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 comnenter
 or an appeal is taken under Section 309(g) of the CWA.

      (c)  Curing the public cotwent period provided under
 subpart (fc) above, any interested person may -submit written
 cornents 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 beains to run shall not ^e included.  Saturdays,
 Sundays and Federal legal  holidays shall i* -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 tirre 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 $12S.102(b){4), five days shall be
 added to the tin* allowed  'by these rules for the filing of  a
 responsive  pleading or document where a pleading or document  is
 served by mail.  Piling  of a pleading or document occurs on the
 date  it i*  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 sh-all  serve  espies
 of all filed pleadings upon each other, upon all commentcrs to
 the proceeding and upon  the Hearing Clerk.  'The  Hearing Cler<
 shall serve, with a certificate  of service,  copies.of all  statements
 or pleadings received fre* ccnmenters, and  service  shall  se raie
 Sy the Hearing Clerk on  Agency  csur.se 1,  the respondent ar.i  a-.y.
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                               -  6  -
 other eonvwntvra.  The Hearing Clerk  shall also serve on all
 commentersj  the  initial complaint  and  any  request  for hearing
 received  from respondent.  The Hearing Clerk shall serve, wit*?
 certificate of  service*  all  orders* notices or other documents
 :ss-ei oy the Presiding  Officer or the Adainistrator en Ac, ere v
 Counsel to  t.se  proceeding, the respondent and any conwencers to
 the  proceeding..
      (a)  The A'simstrator  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 ar.J make a recommended decision to the Administrator.  His
 recorder. *«d 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 sy the  Hearing Clerk  Identified by the Administrator
 for the proceeding... The  Hearing Clerk shall notify the
 Administrator expeditiousiy  of receipt of a hearing request.
 The Hearing Cleric snail be identified in the initial notices
 sent  to respondent and potential coalmen ters.
      (£) The Presiding Officer  shall cor.si*!*r each  case  on  trie
basis of ehe 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 Off icer
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 Masures necessary for the  maintenance of  order and
for the efficient, fair and impartial adjudication  of  Issues
arising in proceedings governed by these rules.

      (d)   C« Parte Communications. •                           •

           (1)  *Ex parte communication* means any communication,
written or oral, relating to the merits of  the proceeding,  oetweer.
tne Presiding Officer and either an  interested person  outside  trie
Agency or  the interested Agency staff* which was not originally
filed or stated in the' administrative  record or  in  the  near:-;..
"Sucf. coisrunication is not an *ex parte communication*  if all
parties have received prior written  notice  of  the  proposed  co^
ication and have been given the opportunity to be  present  and
participate therein.
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                              - 7 -
          (2)  "interested person, outside the Agency* includes the
respondent* any person who filed written comments on the proposed
penalty order, and any attorney of record for those persons.

          (3)  'Interested Agency staff* means those Agency
employees, whether temporary or permanent* who may investigate,
litigate, or present evidence, arguments, or the position of  the
Agency in the hearing before the Presiding Officer or who partisi-
sated in the preparation, investigation or deliberations concerning
the proposed penalty order, inc.jding any'EPA employee, contractor,
c.r consultant who nay be called as a witness.

          (4)  No interested person outside the Agency or member
of the interested Agency staff shall make* or knowingly cause ta
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 Administrator nay 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
ex parte coir-sunicat:ens 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 conmenter 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. be> 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.                .     •          .:

5126.104  Opportunity for Hearing    .

     (a)  within 30  iays after  receipt of the  notice  set  fcrtr.
in 5l26.102fb). tfte  respondent  ray request  a  hearing  and  r.ay
provide written comments on  the proposed  administrative penal TV
crier.  Respondent rust request a hearing in  writing.   The rec.es:
rust specify tne factual ani  legal issues which-are-in dispu-.e
and ?he specific factual and  legal grounds  for the  respondent's
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                              -  8  - .


defense.  Any and all snecific alienation;  not  resbonded  to by  the
respondent or a commenter shall  be deemed admitted.

      '::  The respr-^*-t s-.all se  ieer-ei ts -ave  waived  t-e ri = -.t
••3 a  .-.ear irg if t-e  respcnde.-.t dses not suar.it  t.-.e  request* ta the
Hearmr Cler* designated.  Respondent's reguest rust  be  in writir-.c
ar.2 received sy tne  Kearins Cier*  no  later  t.-.an 23  days  after
respsr.ie-t receives  the prspssei orier.  Far csod cause  shown.- the
Presiding Officer ray crant a hearir.7 ;f the respondent  sue.-its
a late  request.

      (c)  Except as  provided  in  §126.104
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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 r»ade 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 sufcpart unless the  Presiding Officer so elects.
 ?he  Presiding  Officer shall  rule on the motion promptly after
 responses to the motion  are  filed under this subpart.

           (5)  Zf 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  notion* 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 5126.103(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 S126.110 of  these rules.
 If the Administrator determines that  a default has not occurred,
 the  administrative penalty  action shall be returned to the
 Presiding Officer for further  proceedings pursuant  to these
 rules.  X£ the Administrator finds a  default has  occurred, he
 shall issiaft a  da-fault order  with penalty  assessment* if applicable,
 against the-defaulting party*  which order shall constitute final
 agency action  for purposes of  judicial review.  Zf  the Administrator
 determines that  a default has  occurred* any  commenter who filed
 comments  in a  timely manner  under $126.102(b) may,  within 30 days
 after the Administrator  has  issued the default order* petition
 the  Administrator to set aside the default order  and $126.112
 shall apply to the Administrator's action on the  petition.
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                               -  13  -
$126.105 Administrative  Record
      fa)  At any  time. after  puslic notice  of  a  proposed  penalty
er-ier is Given under  5126.102,  the Administrator  shall make
available the a^-imstrative recsri at  reaso-.asle t:-es  far
;-.s?*rt :'•:•: a-* trpv;rc ry  any  interested person,  s^D;ect to
prov:s:;.-.s -' la*  restricting  t.-.e  pualic disclosure  of confidential
ir.fsrr»at:cn.  The  rec-ester  r-ay 5e required ay  t*e Ad.-imstratsr
to pay reascr.arl*  marges  fsr  espies.   The adr.inistrat iv« recsri
srall re 
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                              - 11 -
      (b)  th« Presiding Officer may establish a deadline or
deadline* for the submission of factual or legal documents which
may  be considered as part of the administrative. record.

$126.106  Co-j
      (a)  A respondent or coiwenter may be represented at all
stages of the proceeding ay counsel.  After receiving notification
that  a respondent or any commenter is represented by counsel, the
Presiding Officer, the Administrator, the respondent and all
other comnenters shall direct all further communications to that
counsel.  Respondent and/or commenters shall bear all costs- of
counsel.

S126.107  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 reouest is at the discretion of
the Presidinc 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 $126.105fa) shall be made available,
if requested, to the partien and comnenters prior to the hearing.
For good cause shown by either party or a eomnenter, materials
in the administrative record under $126.105(a) may be supplemented
at or after the hearing.

      (b)  At the hearing, the Administrator shall 'be represented
by counsel*
           **"
      (c)  Hie) Presiding Officer iray subpoena witnesses and  issue
subpoenas Jtees' teeum and ad tcstif ieandum pursuant to the
provisions 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(5) of  the  Clean Water Act.
     (e)  During  the  hearing,  an authorized  representative  of
Administrator may sunrrariTe  the  basis  for  the  proposed  administra-
tive order and shall  be  tne  first party to make  a  presentation  at
the hearing.  The administrative record shall  be admitted  into
evidence.  The respondent  has  the right to examine,  and to  respond
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                               -  12 -


 to the adainistrative  record.  The respondent  may  offer  into
 evidence the 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 retire  the  authentication  cf  any  written exhibit  ar
 statement.                                                    •

      (f)  All direct and rebuttal  testimony  shall  be subnitted
 :n written forr,  unless  upon motion and good cause shown, the
 Presiding 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 way limit the  scope or extent of cross-examination  and
 tr.e'number of witnesses  in the interests cf  justice and  conduct-
 ing a  reascnaaly expe-iitious proceeding.   No cross-examination
 sr.all  ±*» allowed on. questions  of law or regarding  natters that
 are net ihtrodujr*?-* into  evidence nor otherwise Subject to challenge
 in a nearin- under this  s-ibpart*  No Agency  witnesses shall be
 required to testify  or be  made available for cross-examination
 en tr.e matters described in the  prior sentence.

      '?'  At the cits* :f  the  respondent's  resentation  of
 evidence, the Presiding  5ffiw*r  may allow  tr.e  introduction  .
 cf rebuttal evidence.  The Presiding Officer may allow the
 respondent to respo-.d  to any such  rebuttal evidence submitt*1.

      (h)  Commenters who commented within  the  timeframe  of
 5126.102(b), and who filed a request to participate under
 $126.104(e) on the facts or issues specified in the request to
 participate, shall have  a right  to be heard  and to present
 witnesses at the hearing held  under these  rules*   However,
 commenters shall not have the  right of  cross examination, nor
 shall  commenters be  allowed to intervene  as  parties to the
 proceeding.

      (i)  X» receiving evidence, the Presiding Officer  is not
 bound  by strict'rules  of evidence.  The Presiding  Officer shall
 admit  all evidence which is not  irrelevant,  immaterial,  unduly
 repetitious or of little probative value,  except  that  evidence
 relating to settlement which would be excluded in  the  Federal
 courts under Rule. 408  of the Federal Rules of Evidence  is not
'admissible.   In drafting the  recommended decision, the  Presici-.-;
 Officer sr.all determine  tne weight to be  accorded  the  ev.2e-.ce.

     (j)  The• Presidir..;  Officer  ray take official  notice, cf
 matters judicially notice-i in  the  Federal  courts,  cf  otner
 facts  within the specialized knowledge  and'experience  of the
 Agency, and of matters that are  not -reasonably in dispute and are
 commonly known in the  community  or are ascertainable from readily
 available sources of known accuracy*  Prior to taking notice of a
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                               -  13  -


 matter*  the Presiding Officer  shall give the Administrator and
 the  respondent an opportunity  to show why notice should not be
 taken.   In  any case  in which notice is taken and his recommended
 decision i» based in part upon this notice, the Presiding Officer
 shall place a written statement  of  the matters as to which notice
 was  taken in the record.

     (k)  After all evidence has been presented, the Presiding
 Officer  nay 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
 •ritten  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 nay 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 requ»«t, be made available, for inspection
or copying, to the respondent  or any interested person, subject
to provisions of law restricting the public disclosure of confi-
dential  information.  Any party  or commenter making a request
shall be  required to pay reasonable charges for copies unless the
party or  commenter can show the  cost is unduly burdensome.

$126.110  Recommended Decision  of Presiding Officer

     (a) Within a reasonable time following the close of the
hearing and receipt of any statements following the hearing, the
Presiding Officer shall forward  a recommended decision which
shall include) a written statement of reasons for the decision
and any penalty assessment to  the Administrator.  The decision
shall recosflwnd 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)  Th« Presiding Officer provides a recommended decision
 solely to the Administrator.  The Presiding Officer shall include
 the recoswended decision in the adrinistrative record and shall
 sa<* it availarl* 53- the parties ta the proceeding at the ti-^e
 the,Adr-sn:stratsr's decision is released pursuant to 5126.111.
 The Presiding Officer's recoRrer-de-J decision (1) shall not become
 part cf tr.e ainnistrative record j.-.tii the Administrator's f:nal
 decisi-sr is released ar.i '2; s.-.ali not be rsade previously availab
 except t1: the Ai.-i.-istrator.

      (c)  E£ parte Comsuni cat ions.  The rules applicable to
 Presiding Officers under $126.103(4) regarding e« parte communi-
 cations are also applicable to the Administrator and to any
 other person who. advises the Administrator, on the decision or
 tne orler.   Ccr.?uni cat ions between, the Administrator and the
     ides Cff :cer do not constitute ej» carte consiunications.
 $126. Ill Final Crder of the Administrator

      'a;  within -a reasonaole tire following receipt of the
 Presiding Officer's recocwiended decision.' the Administrator shall
.withdraw, :ss_e, or ffcdify and issue the proposed order.  The
 Administrator's decision shall, be based on a preponderence of t!*
 evide.-.ce in the administrative record* shall take into account
 i.te pe-.alv/ factors set c^t :•: Section 309': '3) of the Clear.
 Water Act*  shall be in writing, shall induce a clear and concise
 statement of reasons, and shall include any .final order.  The
 Administrator 's decision shall constitute final agency action for
 purposes of judicial review.

      (b)  The Administrator shall provide written notice of the
 issuance, modification and issuance* or withdrawal qf 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 $126.111(b), 'to respondent.
 The notice shall.be s*nt to respondent by certified mail, return
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                               -  15  -


 receipt  requested.  The Administrator shall provide notice of the
 decision to til  persons who  suMnitted comments.

      fe>  If  no  hearing is recuested or held under 5126.108, the
 Administrator shall consider tne entire record, including any-
 cements received, and shall  issue  an order, if appropriate, by
 sending  the order  to  the  respcr.dent by certified mail, return
 receiot  requested.  The Administrator shall provide notice of the
 decision to all  nersons who  submitted comments.  The date of
 .-taiiina  of the order  shall constitute final Agency action for
 purposes of judicial  review.   The order shall also note the right
 of a  prior comrenter  to petition for a he-aring pursuant to $126.112
 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  deleaatee may  reguest additional information
 on specified  issues fron  the participants in whatever form the
 Administrator designates, givinc all participants a fair
 opportunity to respond.   The Ad.-inistratcr shall include this
 additional information in the administrative record.

 $126.112 Petitions to Set Aside an Order            '•<

      If  no hearir.e is held tefsre  issuance of an order, any
 ccrrrenter wno filed comments in  a  timely ra.-.ner under $126.l32'bv
 r.ay,  within 30 days after the Administrator \as issued an crier
 under $126.11i(e), petition  the Administrator to see aside  the
 crier and to  provide  a hearino on  the penalty.  The Administrator
 shall set aside  the order and provide a hearing in accordance
 wish  these rules if the evidence presented by the commenter/
 petitioner is material and was not  considered when the assessment
 order was issued.  Zf 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.
                                                  f
 5126.113 Effective Date  of  Order

     Any order 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 hearing
 is filed by a prior cormenter before the Administrator.   Zf  the
Administrator denies  such a  petition for a hearing,  the order
 becomes  final 33 days after  the  denial.

 5126.114 Payment  of  Penalties Assessed

      Payment  of  civil sera Ivies' finally assessed  by  the"
 Airinistratcr shall be wade  ry farwariino a cashier's  or  cer.:f:ei
 3.*.ec«c, payasie to  the -.-. itei States of America,  in  the  amo-r.t
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assessed, and noting the case title and docket  nunoer to t*e
following address:  £PA Hearing Clerk, P.O.  BOX 3602.77(1,
Ptttssurgh, Pennsylvania 15251 or to such other address 'designated
in tne final order.  Notice of payment fust  be  sent  &v re-son-.-t
« trt ^ar->5 Cler< f-r iit:.s:s>. •• part of -e a-^:r iS:?^r!e
r«c-.ri fir :r
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                                           _ .... .^o . .'n,.-.U4y  August 17. 198T / Notice*
CNVIMOMM£WrAt MMJT1CTION
AOINCY
      R Environmental Protactioa
AftaeylEPA).
       .'Notice of availabUtqr.
        : EPA ia making available to •
the public • document entitled
-Cuidue* of EPA CUM I OM> Watv
Act Administrative Peaahy Praeadow"
which wU provide procedural gutdaac*
la tbt asaesament of adamiantfvt
penalties designated M Case f under
aectloa 309(g). 33 UAC mi(t).
•PHCT1VSJ QATC This gUldeaGS
document wiU be cffictiv* oa Atifiut 17.
ittf.
ACOMH: To ebutn a copy ol tbt
fuidftaca. write to:
Wcttf bfaroemeat OUvwtoa (UE-134WV
  Attmooa: AMUUUH Eaforeeaeat
                                       CooMei Southern Rtfioiu Branch.
                                       QfTtct of Enforcement «nd
                                       Compliance Monitonnif.
                                       Envirentnenial Protection Ajency. «n
                                       M Street SW. Weihinfton. DC 2Mao
                                     John W. Lyon. Asetctent En/orttmeat
                                     Couniel EnvironmenwJ Protection
                                     Aiency. Telephone 202/4?S-«177. (FTSI
                                     479-1177.
                          •'Section
314 of the Weter Quality Act of 19*7.
Pub L 1OM. edded (ectton 30B(|) to the
Geen Weter Act (the Act) to provide for
the  notice la to sdvue the pvbilc of
tat  ev4ii«biuty of euidaace which the
Ajency wtll follow in issuiai Ooaa I
adauauiratlve avil peaalry ordin. The
guidance ia wnttea la the fora of
regulatory aoendaaata with the
szpectadoa that EPA will later notice
them for proposed niiemaJonc. Aa
intena final rule fuiding the aaMsameat
of Oasa U adauaiaovove peaaJoea U
aiao being published ia the Federal
                                     UeM.
  OekKAogeetiaisV.
|?t Dee. r-iatao PIM a-i4Hr *45 sail
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                                                                  III.B.2.
I " 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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       i          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                            WASHINGTON, O.C.  20460

%~X"
                         "  I -> '990                           OFFCEOF
                                                          ENFORCEMENT AND
                                                         COMPLIANCE MONITORING


 MEMORANDUM


 SUBJECT:  Final Rule for Administrative Assessment of Class IX
           Civil Penalties, 40 CFR Part 22
 FROM:     Patricia
           OE-Water  Intern

 TO:        OE-Water  Attorneys
           Regional  Counsels, Regions I-X


      Attached is the final rule governing  administrative

 assessment of Class ZZ 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.
                                                             PmHden Rteydta Paptr
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 23833      Federal Register / Vol 55.  No. 113 / Tuesday. June 12. 1990 / Rules and Regulations
 ENVIRONMENTAL PROTECTION
    FR Part 22

l... ..-3845-7)

Rules of Practice Governing the
Admlnlamtfv* Assenment of QtM U
Civfl Penalties Under the dean Water
Act

AGINCY: Envuonmenial Protection
Agency (EPA).
ACTKMC Final rule.

SUMMARY: EPA is today promulgating a
final rule establishing procedure* to iU
administrative asseument cf dan Q
civil penalties under the Clean Water
Act (CWA). Then have been no
substantive changes to this rule since it
was issued as an interim final rule. See
52 FR 30671 (August 17,1987). This rule
provides that EPA's administrative
assessment cf Class U penalties will be
governed by EPA'a Consolidated Rules
cf Practice for assessing administrative
p inalties. EPA is taking this action in
response to amendments to the CWA.
made by the Water Quality Act of 1987.
woicQ ^irtnonTp i&ft a^onuni ttrfl^or to
assess administrative penalties far
specified violations of the CWA. The
authority granted to the Administrator
••- assess administrative penalties was
     immediately effective on February
 .   J7. the date the Water Quality Act
i-:s enacted.
CATI* The final rule is effective July 12.
1390. EPA will use the interim final rule
fcr ccnriiirting these proceedings before
the date the final rule becomes effective.
rSSJ FUKT
            INFORMATION CONTACTS
f ..sas Gary V.'atkins. Office of
Enforcement and Compliance
! lonitoring (LE-134W). US.
Environmental Protection Agency, 401 M
Street SW, Washington. DC 20460. 202-
33C-2656.
f ^KEKENTAHV MFOftMATOM On
Fi faruary 4. 1987. section 309 of the
CW A. 33 U.S.C. 1319. was amended by
section 314 of the Water Quality Act
Fib. L 100-4. to acthorize the
Administrator of EPA to asses*
t dministrative penalties for violations of
the CWA. The amendments to sectioa
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 S U££.
554. 556. and authorize a m«faniim
    'ty of $25400. Notice of the
    ability of procedural guidance far
 Class I proceedings was published in the
 Federal Register. See 52 FR 30730
 (August 17.1987).
  The final procedures promulgated
 today apply only to dais 0. Class II
 proceedings authorize a fr"««"ty"
 penalty of $125.000 and are subject to
 the requirements of the Administrative
 Procedure Act S U.SX1554.558. Class U
 proceedings are similar to
 cdministrative penalty proceedings
 subject to the Administrative Procedure
 Act under other environmental statutes.
  EFA promulgated Consolidated Rules
 of Practice, 40 CPR part 22. governing
 the administrative assessment of
 penalties under other statute*
 administered by EPA. The Consolidated
 Rules provide a common set of
 procedural rules far certain of EPA'*
 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 Rule*
 of Practice should be used aa die
 procedural framework for Class H
 administrative penalty enforcement
 under the CWA. Accordingly. EPA is
 today promulgating a final rale
 providing that the Consolidated Rules
 shall govern adjudicator^ proceedings
 for the assessment of Class D
 administrative penalties under section
 306(8) of the CWA.
  EPA published th<* rule hi 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. Comment* feu into
 seven areas of concern!
  1. Economic impact on small business.
 One commenter wanted the Agency to
 perform an economic impact analyst*.
 This regulation is not considered a
 major rule by the Agency because it will
.not have an annual effect on the
 fdfflttffty Of yiOO itylljan ft** IPOf* If^i
 therefore, no regulatory impact analysis
 IS VGQUeYBfl* 408 ffCOBOBIIC ftu0Ct OB PlOw1!
 small businesses is slight therefore, no
 regulatory flexibility analysis is
 required. Moreover, this regulation will
have no effect at all on small businesses-
 that comply with the Clean Water Act
  2. Public notice of complaints. One
         r asked that the standard
                                      public comment period be 3ff days, that
                                      non-party commenters be allowed to
                                      submit late comments only when thy
                                      commenter shows good cause, and that
                                      the Agency provide far late submission
                                      by parties to the enforcement action.
                                      Another commenter wanted the Agency
                                      to give nonce of a violation and*  '"''
 reasonable time for correction before
 issuing an administrative penalty order.
 The 3£Vday comment period after public
 notice is set forth in 40 CFR 2Z38(d).
 Also i 2Z38(d) provides that non-party
 commenters can-submit late comments
 after showing good cause. A party to the
 action is not covered by the 122J8(d)
 prevision for submitting comments:
' party submissions are governed by 40
 CFR 2£07(b) and 22.15.The dean
 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
         er 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 n dvil penalty in a
 fnul order*
   4. Evidentiary issues arising at a
 hearing. One commenter wanted these
 supplemental regulation* clarified as to
 admissability and relevance of
 evidence. The Presiding Officer follows
 the existing requirement* of 40 CFR
 2Z22 to determine the admissibiltty of
 m'Ammnm
 eviaence.
   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-
            * i nfli
 wanted die regulations to state that a
 person who is not a party cannot cross
 examine witnesses. Under 40 CFR
 2Z38(d). a commenter who i* not a party
 ha* no right to cross examine witnesses.
 Other participation .by a commenter is
 governed by 40 CFR 2122 and 22J8(dV
 Parties may cross examine. See 40 CFR
 2Z22(b).
   6. Right to trial by jury. One
 commenter wanted the regulations to
 provide far a trial by jury on the  issue of
 liability far administrative penalties.
 There i* no right to a jury trial on the
 issue of liability in an administrative
 proceeding. Atlas Rooflag Co. lac. v.
 Occupational Safety and Health /tone*
 Commission. 430 US. 442 (1877). Accord
 TttUv. OS. 412 US. 481. 418 O4  (1987).
 The purpose of the administrative
 penalty authority is to expedite
 enforcement in straightforward cases in
-which violations an clearly documented
 and are unlikely to be contested by a
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             Federal Register / Vol 55. No. 113 / Tuesday. June 12.1990 / Rules and Regulations
 violator. The Consolidated Role* or
 Practice and this supplemental rule
 providai  "
   7. Criteria far assessing a penalty.
 Three eommealiani wanted specific
 criteria tot detarmintag.e proposed
 penalty amount .Ilia criteria an stated
 in tection 309(gJ(3| of the dean Water
 Act 33 UAC. 131flfeK3). EPA ha* not
. issued apecific guidelines under the
 Clean Water Act for calculating
 administrative penalties for
 adjudicator? hearings. The Agency
 is sued guidance for calculating a
 settlement penalty amount on Angnst 28,
 1967. The Uniform Civil Penalty Policy.
 issued February 10,1964. provides a
 general framework for determining
 administrative penalties. See 40 CFR
 2214(e).
  Undc
          effam
309(g)oftheCWA.the
 Administrator assesses a das* 0
 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 ocean before
 assessing the penalty.
  Under section 309(g). the
 Administrator must provide public
                  ble opportunity to
notice and reasona
comment upon the
                          - Toe
                        '-
 section provides Oat if a hearing on the
 complaint is conducted, the
 Administrator shall give any citizen who
 commented on die complaint notion of
 the bearing, 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 die order
 assessing a penalty.
  Under section 300(8). if no hearing is
 held any person who commented on the
 complaint may petition the
 Administrator to set aside die order and
 Co provide a hitir^ft on the mrp***"* In
 addition, section 308(g) provides that the
 Administrator mast eat aside the order
 end provide • nraring if 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 ana enforcing
administrative compliance orders under
other subsections of section 309. See
section 309(gl(ll). Accordingly, the rule
promulgated today does not apply to or
                                       change the procedures for issuing or
                                       enforcing eomplianca orders issued by
                                       EPA under, for example, section 308(a)
                                       of the CW A.
                                        EPA concludes that the Administrator
                                       may use the Consolidated Rules of
                                       Practice. 40 CFR part 22. to asses* Class
                                       U penalties under section 309(g) of the
                                       CWA. The Coasolidatad Roles were
                                       developed for administrative penalty
                                       actions like mesa that are subject to the
                                       Administrative Procedure Act
                                      •  Under the Consolidated Roles, as
                                       supplemented by this final rale. EPA
                                       wul assess Class n penalties by a final
                                       order after opportunity for a hearing on
the record. Beiora iiniing an order. ci*A
will give written notice to the person to
be assessed the dvil penalty by filing
and service of a proposed order and
complaint TtiJffr the Consolidated Rules.
Under 40 CFR 22.1S. the complaint will
include a notice of the respondent1a right
to request within 20 days, a hearing on
the complaint
  EPA will provide public notice and   *
                       Rules. If EPA conducts a hearing en the ~
                       complaint EPA shall provide to any
                       person who commented on the
                       GQffifiiftlfiK A OOOy 01 uSB BOuOB OK DftftnfiS
                       required by 40 CFR 2231(b). and a copy
                       of any final order assessing a penalty.
                       Commentera who wish to participate at
                       a hearing may be heard and pn
                       evidence without tight of e
                       OCatt^AIa^^B\llBl^ft flflt flRfliP a^BO^r^R ^
                       intervene under 40 CFR 22.11. If 00
                       hearing is held persons who commented
                       on if^f^ GomplaVBi Buy potttioB to on we
                       the order set aside and to have a hearing
                                        This fina rule is affective 30 days
                                      after publication to the Federal Register.
                                      The Consolidated Rules of Practice and
                                      the interim final role will govern
                                      proceedings for the assessment of Class
                                      U administrative penalties under the
                                      CWA for which a complaint is filed
                                      before the effective date of this final
                                      rale.
                                        The final rule affirms that actions of
                                      leview could have been obtained under
                                      section SOSfbHD of the CWA (for
                                      example, issuance of a waste water
                                      discharge permit) will not be subject to
                                      review in a Class n penalty assessment
                                      proceeding. The final rule makes dear
                                      that a person who is not a party to a
                                      penalty assessment proceeding may
                                                               cplaint
                                      and petition for a bearing. The rale
                                      requires that these persons file written
                                      comments with the regional hearing *
                                      clerk and serve a copy of the comments
                                                              upon each party. The rule con)    «>at
                                                              a person wishing to intervene as
                                                              party in a Class 0 penalty proceav  „
                                                              ma y. move for leave to intervene under
                                                              Regulatory FkxfbiBty Act

                                                                Under the Regulatory Flexibility Act:
                                                              , US.C. 601-012. whenever an agency is
                                                              required to publish a general notice of
                                                              ndemaking for any proposed or final
                                                              rale, it must prepare and make available
                                                              for public comment a regulatory
                                                              flexibility analysis that describes the
                                                              impact of the role on small entities. IA,
                                                              small business, small organisations, and
                                                              small governmental jurisdictions, The
                                                              Administrator may certify that the rule
                                                              wQl not have a ^y'Pre
entities.
  This regulation will impose no
significant costs on any small entities.
The overall economic impact on small
entities to slight Accordingly. 1 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 12211

  Under Executive Order 12291. EP/t
must fudge whether a regulation is major
and therefore, subject to the
requirement of a Regulatory Impact
Analysis. Major rules are those which
impose a cost on the economy of $100
mutton or moie annually or nave certain
other economic impacts. The Agency
has determined that this proposed rule
does not meet the criteria of a major rule
set form in section Kb) of the Executive
Order. The Agency submitted this
regulation to the Office of Management
and Budget for review aa required by
Executive Order 1229L
                                                                Under the Paperwork Reduction Act
                                                              EPA must submit all information
                                                              collfctionf to the Office of Management
                                                              and Budget for approval As the present
                                                              RU0 CffHtstlM BO DuOnOattlOA CO 11 ff C ti Off
                                                              requirements, mis stipulation does not
                                                              apply.
                                                                Dated: May »1990.
                                                              Wi&iamK.Reu1y.
                                                              Mministmtor.
                                                                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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            tucurai R«gi»Ur /  VoL  55. No. 1U / Tuesday. fun« 12. 1990  / Roles and Regulatiomi
PART 2a-CONSOUDATED RULES OF
PRACTICE GOVCRNIMTHE
ADIIINISTRATIVE ASSESSMENT OP
CIVIL PENALTIES AMD THE
REVOCATION OA SUSPENSION OF
  TOUTS

  «. The authority citation for part 22 Is
reviicd toned M follows:
MO. 7i» *ad JWfc r tt&C sees
13S(m)c & ILSC sees. 1381. UlBfe), MIS. ud
  2. Section fflja is revised to read as
follows:

(22JS  Supplemental nilas eft
Act
  (a) Scops of these tvpplemental rule*.
These supplemental rules of practice
shall govenu in conjunction with the
preceding Consofidated Roles of
Praclke (40 CFR part 22). admfnislwHve
proceedings for the assessment of any
Class tt civil penalty ondcr section
309(g) of the Clean Water Act (33 US£.
 in which tha alleged vioUdoo occun
 hefon iasuinf a Coal order asaeasing a
 Class Q dyil penalty.
  {cj Public notice. Before issiiint • Bnal
 order assessing a Class 0 civil penally.
 the Adminfstntor will provide pobfie
  i n 1 ^^4^fltflatf tOSiQ^& fl^VCut
  (d) Comaeat bye person who a not a
party: A petsoa not a- party to the Class
nptoCTTfiing who wishes, to comment
upon • complaint matt fite written
comments with the Regional Hearing
Clerk within 30 days after public notice
of the complaint and serve • copy of the
comments upon each party. For good .
causa show* th* Administrator, the
Regional Adiniiuatatoi; «r the Presiding
Officer* aa appropriate. Bay accept let*
rommtmts The Administrator will give
any petson who comments on •
COa^BaUsljDC ••OtKCv OX flflSi AflBve^^9Dff fl^B^l
notice of the final order assessing a
penalty. Although commenters may be
heard and present evidence at any
bearing held under section 309(8) of the
Act commenters shall not be accorded
party status with right of cross
fl^L^U^lUft^LllDsM ulAlfi0§% •s96^P »ft^^^f%^H^J  alaflFVft
to intermm mA m^ y
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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 I9S7
 MEMORANDUM                                   •       .      •

 SUBJECT:  Guidance Documents and Delegations fortmplementation
           of Administrative Penalty Authorities Contained in
           1987 Clean Water Act Amendments
 FROM:     Lawrence J. Jensen
           Assistant Administrator
             for Water
         f                      a  ' a  I
         LjThomas L. Adams, Jr. y /l/*///^/ '      __
           Assistant Administrat/or for/Enforcement
             and Compliance Monitoring!             .    -   •

 TO:        Water Division Directors, Regions I-X
           Regional Counsels, Regions I-X
           Environmental Services Division Directors
             Regions III, VI
           Assistant Regional Administrator  "or Policy and
             Management, Region VII


      Attached are final guidance documents and delegations
 necessary  for implementation of the new administrative penalty
 authorities contained in the 1937 amendments to the Clean Water
 Act.   You  were sent copies of the procedural r.ules for Class I
 and Class  II proceedings on, August 12.   Notices for these
 procedural rules were also-'published in the Federal Register on
 August 17.   Copies of the Federal Reg ister documents are
 enclosed for your reference.

      This  new administrative penalty authority provides the Agency
 with  the opportunity to significantly increase,the effectiveness
 of  its Water Quality Enforcement program.  We are fully committed
.to extensive use of administrative penalties and urge the Regions
 to quickly get the necessary processes  and re'delegations in place*
 for prompt use of this authority.  Headquarters offices will make
 every effort to support the Regions in  the use of this enforcement
 mechanism  and to resolve any problems which may develop during
 the initial implementation.   The Regions should immediately proceed
 to develop written redelegations where  the Regional Administrator
 wishes to  redelegate some or all of these authorities.    '  •"
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                              -  2 -
     With  the  issuance of  these materials, the Regions are now
 in a position  to begin using administrative penalty authority
 subject,to the delegations and Headquarters concurrence as
 indicated  in the guidance.  We are today starting the tea working
 day clock  for  Headquarters concurrence on draft proposed adminis-
 trative  penalty orders already received.

         List of Administrative Penalty Guidance Documents

     The final guidance documents included in this mailing are
 as follows:

 1.   Relationship of Section 309{a) Compliance Orders to Section
     309(g) Administrative Penalty Proceedings.

 2.   Guidance on Choosing Among Clean Water Act Administrative,
     Civil and Criminal Enforcement Remedies.

 3.   Guidance on State Action Preempting Civil Penalty Actions
     under the Federal Clean Water Act.

4.   Guidance on "Claim-Splitting" in Enforcement Actions under
     the Clean Water Act.             ,

5.   Guidance on Retroactive Application of New Penalty Authorities
     under the Clean Water Act.

6.   Guidance on Effect of Clean Water Act Amendment Civil
     Penalty Assessment Language.         .                  _   •

7.   Addendum to the Clean Water Act Civil Penalty Policy for
     Administrative Penalties.
                           /     '••;    .   ,   '  .
8.   Guidance on Notice to Public and Commeriters in Clean Water
     Act Class II Administrative Penalty Proceedings.

9.   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.

10.   Model Forms for Administrative Penalty Proceedings.         *

     - Sample Letter to Comply with State Consultation Requirement
       on Proposed Class I or II Administrative Penalty
                                     .    I,
     - Form of -Letter to Respondent Covering Complaint    • .  .
       for Class I or II Administrative Penalty (NPDES Violations) ;
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                               -  3  -•..'•

                                               &
      -  Form of Letter  to  Respondent Cove-ring  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 Notice 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 Commenters of Hearing to Assess Class I
        or II Administrative Penalty

      -  Form of Consent "Order Assessing Class I or II Administrative
        Penalty (NPOES Violations)

      -  Form of Consent Order Assessing Class I or IT Administrative
        Penalty (Dredge' or Fill Violations)

      -  Form of Final Unilateral Order Assess; ing Class I or  II
       Administrative  Penalty  (NPDES Violations)

      - 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, 1-987 draft
Section 404 penalty policy for Section 404 administrative penalty
cases.

     We want to thank the Regions  for their corailfents on the
several drafts and for t.heir participation in the Agency workgroup
••hat prepared the delegations, procedural rules and the guidance
documents.  The workgroup included representatives from all
Regions who devoted large amounts of time to drafting and reviewing.
the many documents involved.  The workgroup labored under very
tight deadlines and delivered quality written products on time.
We personally are very appreciative for what really was an
extraordinary effort.                             .
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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 Region will be able to send one or more representatives to
the workshop, which is described in a separate mailing.

     If you wish any additional information on any of the matters
referenced in the guidance documents/ please contact John Lyon
of OECM (Tel. FTS 475-8187), Anne Lassiter of OWE* (Tel. FTS
475-8307)< or Rosanna Ciupek of OWP (Tel. FTS 475-8798).

Attachments

cc:  Workgroup Members
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             RELATIONSHIP OF 5309(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
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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 beccre  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 adjudicatory framework.  The
           risk of this occurring is rest 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— adjudicatory 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  =ay 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 ajfc 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 too  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.
(rl 2-
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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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/  —  /
fer '•' *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.
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      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 to
compel Immediate
comol lance?
N

          Evidence of criminal
          violations, either
          negligent or knowing?
          Need for preliminary
        or permanent injunction.
         and/or civil  penalties
         of more  than  $125.000?
      I  Precedential
eqal  Issue? L
                                                         File  civil action  to
                                                          obtain TRO, and  In
                                                        general  Include claims
                                                         for  injunctive relief
                                                          and  civil penalties
                                                          CSS309(b) and 
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                                2 '
 ".   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)j—to  impose monetary penalties for
 Clean Water Act violations.  The administrative enforcement
 authority granted by §309(g) provides a very useful and
 flexible third option for imposing penalties.

      C.   Decision Criteria

      EPA may impose penalties  under §309(g)  for virtually the
 entire range of violations that can be addressed through
 judicial actions and administrative compliance orders under
 §§309(a)  through (d).  The only exception is~that
 administrative penalties, unlike judicially-imposed penalties,
 may  be imposed only for  violations of underlying requirements
.of the Act and not for violations  of §309(a)  compliance      '
 orders.i/  Since EPA. as  a general" rule should choose the least
 resource-consuming enforcement option that  will do the  job,2/
 and  administrative penalty proceedings under §309(g)  should be
 both effective and much  less onerous  than civil judicial
 actions,  the  real  issue  is when not to use  this administrative
 penalty  authority.   The  following  discussion,  like the
 flowchart at  the beginning of this document, approaches  the
 issue  from this  perspective.    .   '
        I/  A compliance order, that does not expressly excuse
penalties does not/limit EPA's authority-to assess an
administrative* penalty for that violation.  Cfl,. 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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      In the legislative history to the Water Quality Act of
 1987, Congress indicated that judicial rather than
 administrative enforcement is more appropriate for certain
 types of cases:

            This authority to issue administrative penalty
         orders is intended to complement and not to replace a
        /vigorous civil judicial enforcement.program.  Civil
         judicial enforcement is a keystone of-successful
         enforcement of the Act and necessary for cases
         involving novel issues of law or contested penalty
         assessments, cases requiring ihjunctive 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 TRQ or an in-iuncrion) .

      A basic limitation of the administrative penalty
 authority under §309(g)  is that it does not grant E?A 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 civir penalty for past and ongoing.violations can
 be  a strong inducement'to comply.   However,  there will be  .
 situations where this inducement,  accomcanied.bv a separate
 §309(a) compliance order,  will not be encugh.  The $125,000
 cailing 'on administrative penalties.may be insufficient  to
 discourage continuing violations,  for exaspis where the  csst
 of  compliance or the economic benefit is high.   2ven if  a
.penalty of less than $125,000 should be sncugh  to detsr
 ongoing ncncomplianca,  the adjudicatrry ar.d 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 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.
                 • I
   '•- 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 penalti-es of more than
            S125.000. 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  5309{g)  is $125,000.
Section 309(g)(3)  of the Act and other sections  of this
guidance set our the factors to consider in determining- the
appropriate penalty amount ts be collected.

     It. is clear .that E?A 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.  IS E?A'believes that the  §309(g) process results
in a penalty -assessment that is tec  low,  there  is no "second
chance" to obtain higher penalties through a  §309(d)  or
§211(bH6) civil action.

     The decision becomes  difficult  as the.appropriate bcttcm-
iins civil penalty approaches 3125,000.   or. the. cr.e har.c,  this
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say 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 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 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  not usually justify a judicial  enforcement
action—.  far 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 OK 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 February 4, 1987,
 amended the  Clean Water Act, contains language limiting EPA's
 authority to commence  a judicial action for civil penalties
 under Sections 309(d)  or 311(b) of the Act under certain'
 narrowly circumscribed conditions relating to ongoing State
 administrative civil'penalty actions.I/  This guidance
 addresses the question of when, and under what~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.£/

 II.   What Federal Enforcement Actions can be Preempted -by the
      Appropriate  State Action?

      The operative language of the Act, as amended, is in
 Section 309(g)(6)(A).  The language is clear that the actions
 that  may under certain circumstances be preempted, are
 "...civil penalty action[s] under subsection (d) of this
 section (§309(d), judicial civil penalties] or Section 311(b)
     I/  The relevant section is 309(g)(6)(A), which
follows:

     "(6) Effect of Order.- (A) Limitation On Actions Under
     Other Sections.  Action taken by the Administrator or the
     Secretary, as the case may be, under this subsection
     shall not affect or limit the Administrator's or
     Secretary's authority to enforce any provision of this
     Act; except that any violation - (i) with respect to
     which the Administrator or the Secretary has commenced
     and is diligently prosecuting an action under this
     subsection, (ii) with respect to which a State has
     commenced and is diligently prosecuting an action under a
     State law comparable to this subsection, or (iii) for
     which the Administrator, the Secretary,.or the State has
     issued a final order not subject to further judicial
     review and the violator has paid a penalty assessed under
     this subsection, or such comparable State law, as the
     case may be, shall not be the subject of a civil penalty
     action under subsection (d) of this section or
     section 311(b) or section 505 of this Act."
                      »
     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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ZIZ. What  State Actions  Can  Preempt Commencement of Federal
     Judiaial  Penalty Actions Under Sections 309fdl and 311fbl?

        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 t

        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
         pilierentlv  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 or  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.         <

     Co  The State Statutory Prevision must be Comparable to
         Section 309(a)z

        The final set of criteria for determining if Federal
judicial penalty action nay be preempted are found underlying
the statutory wording limiting preemption to cases where the
State administrative.penalty action is concluded, or has been
commenced and is being diligently prosecuted "... under a
State law comparable to this subsection ••••", meaning
Section 309(g).  Again Senator Chafee's remarks on the Senate
floor, Cong. Rec., January 14, 1987, p. S737, are extremely
helpful in interpreting the meaning of the phrase "...
comparable to this subsection ...."  Senator Chafee lists the
following elements which must be present in the State
statutory provision to make it "comparable11 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.  6554).

        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,£/ 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  •
     I/  "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 prosecutingr 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 NFDES States.  Nothing in this guidance should be
 construed as limiting  the ability of the States and EPA to
 agree to  certain rules or principles in furtherance of their
 cooperative efforts to implement strong and consistent NPOES
 programs.

      For  further information  or clarification of this
 guidance, contact Jed  Z.  Callen, Esq. at FTS 597-9882 or
 Gary  Hess,  Esq.  of OECM at FTS-475-8183.


Attachment:   [Floor Remarks  of Senator Chafee]
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Jc7u.aiy 14,1987
CONGRESSIONAL RECORD — SENATE
thority aggressively aciinst illegal pol-
i-.!«'.TS.  even  if  a memorandum of
p-.'f-enwit is not conclu:i  :'?.*• t poilut-
     cial penalty action then underway, but
     merely indicate that a Federal judi-
     cial civil per.&::y action.or a citizen
     suit is not to 6c commenced if an ad-
     ministrative penalty proceeding is al-
  N-:w parasraph 30S-^>.Ci fits out
lisiitatiojss that produce citizen suits
where the Federal Ccvemmcn: or a
State has commenced and is diligently
prosecuting  an  administrative dvil
penalty action or has already issued'a
f aial administrative dvll penalty order
not subject to further review and the
violator  has paid  the penalty. The
same provision limits Federal civil pen-
aJty actions under subsections 309 or section SOS would be unaf-
fected by the State  action, notwith-
standing paragraph 309(gX9>.
  In  addition,   the  limitation  of
309(gX6> applies only where a State to
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 30ft g); it must in*
elude analogous penalty assessment
factors and judicial review standards;
and it must include provisions Mm are
analogous to the other elements of
section 309.
  Finally, section 30MgX6X 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). 311(b). or 505.
This language is not intended to lead
to the disruption of any Federal judi-
             *OTtr» Cr COX*UT7 DCC1UXS
       This bin r«-j-:;ros that, in connection
     with citizen su:ts. notification of pro-
     posed consent  «Jerrses be provided to
     the Attorney General and to the Ad-
     ministrator.
       It was originally proposed in the Ad-
     ministration's bill 2 yean ago. The Ad-
     ministration bill contained a clause
     which sneaflcaJl- 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 m 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 yean from the date
     of promulgation of the guidelines by
     EPA. whichever  is  sooner.  EPA  is
     strongly  encouraged  to   get  these
     guidelines finalized  so  industry  T*
     comply with the  discharge  require-
     ments at soon at possible. Until such
     guidelines   are   promulgated,   the
     Agency is expected to proceed under
     its current policy with respect to non-
     compliance dischargers to  meet the
     deadline.
       A provision  establishing  a progres-
     sive stormwater control program is In-
     cluded  in the  bilL Although the law
     now  requires  EPA  to establish  dis-
     charge  requirements for the storm-
     water point sources. EPA has  been
     unable  to develop  a  final permit pro-
     gram for these sources. This legisla-
     tion sets up a program whereby EPA
     must issue permits  for storm  water
     point source discharges in municipali-
     ties with population  of over a quarter
     million within 4 yean of enactment.
       Within  5 yean of enactment, per-
     mits for stormwater point sources dis-
     charges are required in cities with pop-
     ulations between 100.000 and 250.000.
     These discharge requirements are  to
     contain control  technology or other
     techniques to control these discharges
     and should conform  to water quality
     requirements. Requirements for storm
     water discharges associated  with  In-
     dustrial activities  are unaffected  by
this provision.  The* Age*     (! > without regard tc
limitation contained in the proviso
the  Administrator  deterr.ines
such projects meets the cost-effei
requirements of section 217 and 2!
the act without any redesign or re
•traction. The  Governor  of Hli
most demonstrate to the satisfac
of the Administrator the water qu;
benefits of the project. This prort
does not apply to the eost-tharing
quiremenu under the other applic
provisions of the bUL
  The  legislation modifies EPA's >
rent policy with respect to antib;
sliding on best practical judgment
water  quality-based  permits.  '.
thrust of this provision U to gecer.
prohibit   affected  permittees  li
weakening 'their,  discharge  requ
ments as a result of subsequently i
mulgated guidelines.  Or*
narrow circumstances car.
be permitted, and in no eve*....   >i
permitted even if.  after a dischar
leaves  a  stream, there Is an  imprc
raent in water quality, unless the a:
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 iat
governmental review process.
  S. 1 also embodies many of the c
struetion grants and  revolving Ic
fund propof* 'T contained in the I
first passed by the Senate in 1985.
other words, this bill was passed, a
mentioned earlier, in 1985; we went
conference with the Bouse,  but
kept many of  the provisions deal!
with the construction grants and t
revolving loan.
  The bill extends the current S2.41
lion annual authorization for title
construction grants for 3  years.
fiscal yean 1989 and 1990, the anni
authorization for title n would be >
duced to $1.2 billion. After that, the
is no more: no further authorizatio
would  be made for title n after fisc
year 1990. and the money Is shift
ever into the revolving  grants pi
gram.
  States  would be provided with suf
dent lead time to begin setting <
State  revolving loan pror      T:
bill encourages the creati  i   I"-*
self-sustaining  financing t..
the earliest opportunity by p.   .<:
each State with an option of come:
Ing title IX construction grants fur.
into capitalization grants for SRF s.
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                                                                  III.B.6.
"Guidance on "Claim-Splitting" in Enforcement Actions under the Clean Water
Act", distributed August 28, 1987.
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-------
GUIDANCE ON •CLAIM-SPLITTING" Ml ENFORCEMENT
     ACTIONS UNDER THE CLEAN WATER ACT
-------
          GUIDANCE ON "CiA:«-3?L:TT:r;c"..iN £NTORCEKE:.T
               ACTIONS UNDER-THE C^AN WATE2 ACT
 I.   'JF&Z is "Claun Splitting"?

      Claun splitting, in this context aeans either I.1) pursuing
 separate administrative and judicial civil oenalty enforcenent
 actions simultaneously'for the same violation .or violations, or
 2.) dividing an existing set of known past CWA violations by ore
 violator and pursuing each subset through a separate civil penalty
 enforcenent action.  This guidance addresses the appropriateness
 of such claim splitting activities in the context of CIA enforce-
 ment.                                    .                  -

 II.  Parallel Administrative and Judicial- Proceedings

      The enforcenent structure of the amended CWA allows the agency
 to seek administrative (S 309
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 ry she  id.rir.iscrat:ve  oenaj.:y  proceeding.   5e- Secticr.5 309(»)
 ami 3.0*(-:'>.   Arr-iaolv,  EPA may choose to "split"  its civil
 oenalcy claims oec>«en simultaneous  administrative and judicial
 actions acainst tne sane  violator for different past-violations.
 As a matter  of practice,  however,  such claim-splitting could
 result  in an inefficient  use of Agency resources  that could
 LTpair  CKA enforcement efforts.   To  pursue two simultaneous
 civil penalty proceedings would require duplication of efforts
 oy both legal and technical staffs,  and could even result in
 unequal or inconsistent results.   In addition, the prosecution
 of two  simultaneous civil penalty  actions  in  different forums,  one
 administrative and  one judicial, might provide the violator with  an
 argument for staying one  or the other of the  enforcenent proceedings
 to prevent inconsistency, -thus potentially delaying resolution  of
 sane of  the  outstanding violations.        -

     For the above  reasons, EPA should generally  avoid  initiating
 oarallel or  simultaneous  administrative and judicial civil  oenalty
 proceedings.   This guidance does not apply to parallel  civil       <
 (administrative or  judicial) and criminal  actions,  which may seme-
 times be appropriate, nor does ic apply to serial civil penalty actions,
either administrative or  judicial, in any  order or  combination, if the
 new civil penalty action  addresses only violations  which occurred after
 tr.e date of  the earlier concluded civil  penalty action.

    ... In  addition, EPA must be particularly careful  in  framing its
 oenalty orders and  judicial complaints  to  identify  as orecisely as
possible the violations which the Agency intends the enforcement  action
 to address so as to  avoid possible preemption of future claims  for civil
 penalties.

     Finally,  EPA may, of course, pursue judicial enforcement under
 Section  309(b) of an administrative order  for compliance issued pursuant
 to Section 309(a).  And EPA may at any  time initiate administrative or
 judicial civil penalty actions for the sane violations  that were  the
basis for an earlier (or  indeed simultaneous) Section  3Q9(a) administrative
order for compliance.

 III. Simultaneous Administrative Penalty Proceedings
              *                                   .
     Although nothing in  the Clean Mater Act or Amendments prohibits
 simultaneous administrative civil penalty  actions for different past
 violations by the same violator, EPA will  be on the strongest legal
ground by avoiding simultaneous administrative penalty actions against
a single violator.   Should EPA initiate  separate administrative penalty
-------
actions for  different sets of -:asc violations  loy one violator,
£?A .iay nave to-reout tie argument that  it  ".as split its'.
claims in an effort to circjnvent the Act's 5125,000 cao on
administrative penalties.  See Section 309(g)(2KB).,   in cases -in
wnich EPA is aware of past violations by one violator  of sufficient
numoer and seriousness to warrant a civil penalty  in excess of 5125,000
(taking into account the factors for determining penalty amounts
enumerated in Section 309(d) for judicial penalties and in Section
309(g)(3) for administrative penalties), EPA would be  better advised to
proceed with a single judicial civil penalty action which has no civil
penalty cap.  this approach not only avoids the charge of circumvention
of the administrative penalty cap by claim  splitting,  but will eliminate
the inefficiency caused by duplication of enforcement  efforts in. the two
forums,  finally, the desirability of securing injunctive relief under
Section 309(b) against most serious repetitive violators will often tip
the balance away from not only simultaneous, but even  serial administrative
penalty actions, and toward a judicial action  for injunction and penalty.  '

  .   For further infonnation or clarification  of this guidance,
contact Jed Z. Callen, Esq. at FTS 597-9882 or Gary Hess of OECM at
FTS 475-3183;                       .
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                                                                  III.B.7,
"Guidance on Retroactive Application of New Penalty Authorities under the
Clean Water Act", distributed August 28, 1987.
-------
-------
    GUIDANCE ON "RETROACTIVE" APPLICABILITY OF
NEW PENALTY AUTHORITIES UNDER THE CLEAN WATER ACT
-------
              GUIDANCE  ON  "RETROACTIVE"  APPLICATION OF
         NEW  PENALTY AUTHORITIES  UNDER THE  CLEAN WATER AC
 I.    Introduction

      The. Water Quality Act of  1987, which  amended  the Clean
water Act  (CWA) created some new areas of  explicit  crisiinai
liability,  increased  the maximum.civil and criminal penalties
available  under the Act, and authorized the administrative
assessment  of civil penalties.  This guidance addresses which
of these new penalty  provisions may be applied to violations  •
which occurred prior  to February 4, 1987,  the effective date of
the CWA amendments.                     ^      '

II.   Criminal Penalty Provisions Not Retroactive

      The 1987 amendments to Section 309(c) of the Act create
three distinct, classes of criminal violation:

      1.)  Negligent Violations of specified sections of the Act
or of any condition or limitation implementing any  of the
enumerated  statutory sections in a NPDES permit or  in a 404 '
permit; or  of any requirement imposed in an approved pretreatment
program, or by introduction into a sewer or POTW of a pollutant
which causes a POTW NPDES permit violation,- or which the intro-
ducer reasonably should have known could cause personal injury
or property, damage (See Section 309(c)(D);

      2.)  Knowing Violations of the same statutory  and permit
provisions  (See Section 309(c)(2)}; and     -

      3.)  Knowing Endanqerment Violations  involving a knowing
violation of any of the enumerated provisions and concurrent
knowledge that the violator thereby places another person in
imminent danger of death or serious bodily injury.  (See Section
309(c)(3».

   .  The penalties for the negligent violations remain "... not
less than $2,500 nor more than 525,000 per day of violatior. or
by imprisonment for not more than 1 year, or by both."  Second
and subsequent convictions are punishable by fines  "...of no
more  than $50,000 per day of violation, or by imprisonment of
not more than 2 years, or by both.*  The increased penalties for
knowing violations are fines of "...not less than 55,000 nor more
than $50,000 per day .of violation,  or by imprisonment for not more
than 3 years, or by both."  Second and subsequent convictions may
-------
                               - 2 -           '       .        '  .  •


 result in fines"... of not more than $100,000 per day of viola-
 tion, or by imprisonment of not more £han 6 years, or by both."
 The new penalties for knowing endangerment violations are up to
 15 years•imprisonment or a fine of not more than 3250,000, or
 both for individuals;  and a fine of not more than 51,000,00.0
 for organizations.  -The fine and term of imprisonment is doubled
 for second and subsequent convictions under this provision.

      The "ex post facto" clause of the Constitution precludes
 retroactive application of new criminal provisions, either by
 punishing 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, 1987
 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 Court has ruled that the. "ejc post facto* clause
 of the Fifth Amendment to the Constitution, applies only  to legis-
 lation imposing criminal f'ines_or_ penal-sanctions.   Thus the
' retroactive'application" of~civil penalties-does not necessarily
 violate the; "ex post, facto"! clause.   However the "due process".
"clause^bfthe Fifth Amendment"to the~Cpnstitution does apply and
 may impose restrictions oh"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 "...
 $10,000 per day of such violation"  will,  in most cases,  still
 prove adequate, it is the Agency's policy generally not  to seek
 ithe 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 whiijh accrued to the violator by virtue of his violations.
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     Although  the  "due process' clause  would  prevent  the  retr •'•"
active assessment  of civil penalties  in cases" where no authori'L/
to optain penalties previously  existed,  it  is  the Agency's
position that  none of the amendments  to Section  309(d) other
t'lan the" increased maxinum penalty  amount create new  civil penalty
iiasilities.   Instead the amendments  to Section  309(d) nerely
clarify previously existing civil penalty authorities and
liabilities.   Specificallyi the amendments  clarify that violation
of any recuirement in an approved pretreatment program is subject
to civil penalties, under Section 309(d).  Also the amendments
clarify that civil penalty liability  under  Section 309(d) attaches
"... per day for each violation."
                                        —»
IV.  Administrative Penalties Retroactive Up To  Old Penalty Limits.

     Statutory amendments that  retroactively change the forum in
which the penalty .will be adjudicated,  but  not the substance of
the liability, have been ruled  constitutional.   Therefore the
Agency may assess administrative civil  penalties under Section
309(a) for violations which occurred  before February 4, 1987, up
to the limits of liability which existed at that tine.  As long.
as the administrative penalty assessed  (of up to the maximum
administrative penalty liability of 510,000 per  violation up to
the Class X-cap of 525,000, or  510,000  per day up to the Class
II cap of $125,000) does not exceed the previously applicable
Section 309(d) maximum civil penalty  liability of 510,000 per'day.
of such violation, there is no  problem with retroactive application
of the new Section 309{g)~procedures.  Given EPA's interpretat
of each of the slightly differently worded limitations as near
"per day per violation",*: the retroactive application of the
Section 309(g) maximum penalty  liabilities arguably will never
exceed the Section 309(d) maximum judicial civil penalty liability
that applied prior to February  4, 1987.

     For further information or clarification of this guidance,
contact Jed 2. Callen,  Esq. at  FTS 597-9882 or Cary Hess of OECM
at FTS 475-8183.
*  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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   GUIDANCE ON EFFECT OF CLEAN WATER ACT

AMENDMENT CIVIL PENALTY ASSESSMENT LANGUAGE

    — Appropriate Calculations Per Day
           and/or Per Violations
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               GUIDANCE ON EFFECT OF CLEAIi WATER ACT'
            AMENDMENT CIVIL PENALTY ASSESSMENT LANGUAGE
                — Appropriate Calculations Per Day
                        and/or Per Violation
Summary
      In  this guidance,  the Agency  concludes  that each Clean
Water Act.violation  is  subject  to  a  separate civil  judicial
penalty  of  525,000 per  day,  or  administrative penalty of S10,000
per day, subject  to  the .Class I administrative maximum assessment
of $25,000  and  the Class  II  administrative maximum  of $125,000.
Tor guidance on the  new statutory  language regarding "single
operational upset" and  any effect  it may have on civil penalty
liability calculated as the  statutory maximum amount, see a
separate guidance document to -be distributed to the Regions at a
later date.


Background

      When'Congress amended the  Clean Water Act, providing for
increased civil penalties and for  administrative penalties, it
phrased each penalty orovision  slightly dif"srently.  An analysis
of the language and  Legislative history, vi  ;ed in  the light of
Agency practice,  indicates that all  provisi -is are  to be interpreted
in a  similar manner.  Thus,  all violations  : separate Clean
Water Act requirements  or- permit conditions  ire separately subject
to penalty  assessment on each and  every day such violations
continue.   •  '             .                   •  '•    .

      The manner in which penalty liability is alleged in.civil
or administrative complaints is affected by interpretion of this
statutory language,  as  is the Agency's assessment of penalties.
With  respect to civil or administrative complaints  or proposed
orders, EPA will operate from the  strongest position where such
pleadings allege  the precise statutory language for penalties op
to each applicable statutory maximum penalty amount.

      In considering'  the number  of  violations contributing to
penalties in judicial or administrative proceedings, Agency
enforcement personnel should account for the total  number of
violations  of Clean  Water Act requirements, permit  conditions or
limitations that occur  in a day, as  well as the number of days
each  violation continues.  The  amount thus calculated may serve
two purposes: first, it may  be.  considered as one of the factors
in determining whether  to proceed  under administrative penalty.
authority or to initiate judicial  action (See Guidance on Choosing .
Among Clean Water Act Administrative, Civil and Criminal enforce-
ment  Remedies in  this guidance  package); and secondly, the Region
may cite, this amount as its  proposed ass'essnent in  an administra-
tive  complain't and proposed order, subject f.o the statutory.
caps  on total penalty assessment.
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The Provisions

     The  following chart sets out-the evolution of  the various'
penalty provisions in the process of amending  the Clean Water
Act.      •  '          •     '  '          *
            CIVIL JUDICIAL.
                            ADMINISTRATIVE:
                               CLASS I
                             MAX. $25,000
                                     ADMINISTRATIVE:
                                        CLASS II  .  .
                                      MAX. $125,000
Before 1987
Amendments
Sen. Bill,
S1128
S. Rep. 50
House Bill,
HR 8
H. Rep. 189
1986 Conf.
Sill/1987
Amendments
$10,000 per day of
such violation
$25,000 per day for
each violation
$25,000 per violation
$25,.000 per day of
such violation
- $25,000 per day
$25,000 per day for
each violation

•V



$10,000 per
violation

$10,000 per day for
each .violation
$10, 000. per day for
each violation of a .
Clean -Water Act
requirement
$10,000 per day of
violation
$10,000 per day /£§£%
violation
$10,000 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 sought to expand the Agency's enforcement
authorities.! Additionally, the legislative history reflects
1.
133 Cong.
Chafee)
Rec. S736 (January 14, 1987)(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 fact.
Congress ratified the Agency's penalty policy and practices by
incorporating its basic principles in  the Act.  See $313 (c)
which amends  §309 ,(d) to  specify the factors to be considered
in determining penalty amounts.

     There  is no doubt that  there was  no change, except as to
dollar ceiling, to  civil  judicial penalties.  On 'its face, the
amended statute states that  a violator shall be subject to
$25,000 per day for each  violation.  Furthermore, Congress says
clearly that  "Section -309 and 404 of the~kct are amended ... to
clarify that  each distinct violation is subject to a separate
daily penalty assessment  of  up to $25,000..."  H.R. Rep. No.
1004, 99th Cong., 2d Sess.,  132  Cong.  Rec. H10569 (Oct. 15,
1986).

     For administrative penalties,  the- question is whether a
more restrictive interpretation  applies.  Class I penalties are
to be assessed "per violation*.   Congress explicitly states that
"The maximum  first  tier penalty  that may be assessed in any
enforcement action  is $25,000, regardless of the number of
violations or number of days of  violation.  H.R. Rep. No. 1004,
99th Cong., 2d Sess.,.132 Cong.  Rec. H10571 (Oct. 15, 1986)
(emphasis added).   Accordingly,  the number of violations and the .
number of days of violation  are  to be  considered in Class I
penalty assessment, up to the cap on liability.  The Class II
penalty provision,  which.states  that the penalty shall be per
day for each  day during~which the violation continues, should
be interpreted similarly.

     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 administrative
penalty provisions.  For  further information, please contact
Patricia'.Mott,. attorney in OECM/Water  (FTS 475-8320).
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                                                                  III.B.9,
"Addendum to the Clean Water Act Civil Penalty Policy for Administrative
Penalties", distributed August 28, 1987.
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ADDENDUM TO THE CLEAN WATER ACT



    CIVIL PENALTY POLICY FOR



    ADMINISTRATIVE PENALTIES
-------
                  ADDENDUM TO THE CLEAN WATER ACT

                      CIVIL PENALTY POLICY FOR

                      ADMINISTRATIVE PENALTIES
 I.   Purpose
     The purpose of  this  Addendum  is  to  provide  guidance  on  tne
calculation of  acceptable settlement  amounts  for EPA claims  for
administrative  penalties  authorized by Section 314  of the 1987
amendments to the  Clean Hater  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-evaiuated to determine whether the methodology should  be
made identical  for both administrative penalties and civil
judicial actions.

     The calculated  penalty figure represents a  reasonable and
defensible penalty which  the Agency will agree to accept  in
settlement of its administrative penalty action  against a
violating permittee.  The complaint/proposed  order  should
include the penalty  amount which "the Administrator  proposes
to assess", as compared .to the  "settlement"  amount calculated
under this Policy; thus,  the amount which  the Administrator
proposes to assess or seeks in administrative litigation  by
no means needs  to be  identical to the amount  calculated under
this Addendum as acceptable for settlement.


II.  Penalty Calculation  Methodology

     As for judicial penalties, the initial calculation should be
an estimate of  the statutory maximum  penalty  in  order  to  determine
the potential maximum penalty  liability  of  the defendant.  The •
penalty which the government seeks in settlement may not  exceed
this statutory  maximum amount.  For administrative  penalties, in
addition to being governed by  per day/per  violation maxima,  the
government may  not seek more than $25,000  in  penalties through
a Class I action nor more than'$125,000  through  a Class II
adminstrative action.
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     The adminstrative penalty calculation involves tne sane-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 POTrf 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-


        "Q" -- Duration of Noncompliance.   This factor is unchanc
               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 ot the violator, increasing the
          penalty may be  justified. .
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      (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 this 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
wirh the United States.  The Agency reserves the right to act
at variance with these policies and procedures and to change
them at any time without public notice.
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Addendum to Clean'Water Act Penalty Policy; Calculation Methodology

SETTLEMENT PENALTY I/ 2 - (ECONOMIC BENEFIT) -I- (GRAVITY COMPONENT)
                           + (ADJUSTMENTS)
Step 1:  Calculate the Statutory Maximum Penalty
                     •
Step 2:  Calculate the Economic Benefit Using "BEN" 3, 4
                        \
Step 3t  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 Violation6
i Exceedence
Monthly Avg.
0-20
21-40
41 - 100
101 - 300
301 - >
% Exceedence
7-Day Avg.
0-30
31 - 60
61 - ISO
151 - 450
451 - >
% Exceedence
Daily Max.
0-50
51 - 100
101 - 200
201 - 600
601 - >
Convention
Toxic Non-Toxi«
0-3 0-2
1-4 1-3
3-7 2-5
5-15 3-6
10-20 5-15
   B.  Barm to Health, Environment or Treatment Plant7
    (i)    Impact on Human Health) or                     10 - stat. Ma:
    (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
   £.  Significance of
        Non-Effluent Limit Violations^                       0-10
Step 4:  Include" Adjustment Factors
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                             -2-
A.   History  of  Recalcitrance*!  (Addition)


     -m Penalty  may  be  increased  by  up to 150  percent

       ?arLSn2an?eapaSf dnd Present recalcitrance of
       the defendant and  for otner  matters  as justice may
       require*                        .


B.  Ability to  Pay  (Subtraction)
                 •

    -  Penalty may be adjusted downward  to  represent the
       defendant's ability to pay.   •       ^present the


C.  Litigation Considerations (Subtraction)12


    -  Penalty may be adjusted downward  to  reflect the maximum

                        C°Urt mi9ht 4SSeSS  if the cas*  *
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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
    vduring 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 requirement(s).  Generally, a "long-cerra"
     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 Ill's pretreatment violations
     (see B iii)—such' as reporting (nonsubmittal, incorrect and
     late Discharge Monitoring Reports), laboratory analyses deficiency
     (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  4P-
  (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 Conmenters in Clean Water Act Class II
Administrative Penalty Proceedings", distributed August 28, 1987.
-------
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          GLTDANCE OK NOTICE TO PUBLIC AND COMMENTERS
IN CLEAN WATER ACT CLASS II ADMINISTRATIVE PENALTY PROCEEDINGS
I.   Statutory Reg'uireaer.ts of Notice to Public and Commenters

     The Clean 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 aust 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 Z 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  t.w.e 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 Carpenters with Notice of Hearing

     As set forth in §126.104(e)  of the Class I Guidance, the
Presiding Officer should serve notices of hearing on each
person who commented on the proposed Class II assessment.

IV.  Providing Commenters with Notice of Order Assessing
     Penalty

     As set forth in 1126.102(e)  and 9126.111 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 475-3183.
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                                                                  III.B.11
"Guidance Regarding Regional and headquarters Coordination on Proposed and
Final Administrative Penalty Orders on Consent under Hew Enforcement
Authorities of the Water Quality Act of distributed August 28, 1987.
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        GUIDANCE REGARDING.REGIONAL AND HEADQUARTERS



     COORDINATION ON PROPOSED AND FINAL ADMINISTRATIVE



PENALTY ORDERS ON CONSENT UNDER NEW ENFORCEMENT AUTHORITIES



              OF THE WATER-EQUALITY ACT OF  1987
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Guidance  Hecirdir.c Recior.il C..-.G hesdsuarters Ccorci.-£;lo- c-
Prspcsed  and Final Acr.ir.iiir=:i"e Penalty Orders en Cor.se.-.;"
'Jnder  New Sr.forcener.t Aut.-verities cf rhe'wacer Quality *—
of  1987.
 I.     Puroose

     The-purpose  cf  this  cuidar.ce is to exolain the interaction
 required  between  Headquarters (SQ)  and tne"Regions for acxi.iistratfre
 penalty actions taken by  Regions under section 314 of the Water
 Quality Act  (HQA).


 II.    Background                  •  "*"      .

     On February  4,  1987,  tne HQA amendments of 1987 were enacted.
 Section 314  gives the Administrator new enforcement.authority to
 issue  administrative penalty  orders against., alleged violators of
 the WQA.  The Administrator is delegating these new authorities
 to the Regional Administrators and  the Assistant Administrator
 for water/ who may then redelegate  many of these new authorities.
 The Office of General Counsel fOGC)  and the  Office of .Enforcement
 and Compliance Monitoring  (OECM)  also  will have certain prescribed
 roles.

     The  following guidance covers  roles and responsibilities for
 Regional  and HQ offices in EPA's  use of these new enforceme.-.i
 authorities,  including coordination responsibilities.   The guidance.
 is intended  to promote consistent and  sound  development anc -se of
.tnese  authorities, effective  national  management of the new
 enforcement  program,  and helpful  information exchange, wniis ? •":'••>
 significant  flexibility for the Regions to implement  .tne act.nb
 most efficiently'as  seen fit  in  individual cases.  .             "-""


 III. HQ CONCURRENCE  ON INITIAL PROPOSED AND  CONSENT P-NAL7Y AO'5

  A. WQA  Class I  and  II Penalties Other than  S404

          Each Regional.office shall submit  to  Anne Lassi;er,
     Chief,  Policy Development Srancn,  Office of Hater Enforcement
     and  Permits  (OWE?) copies of the  following prior  to issuance:

     1.   The  first three Class  I  and the first  three  Class II
        "  combined complaints  and  penalty orders (and  accompanying
          cover letters.) proposing the  assessment .of penalties  pri
       /issuance under 5314  of the  HQA.

     2.   The  first three class I  and first three Class IJ
          final penalty orders on  consent prior  to  issuance
          under 53-14  of the HQA.                       '  '
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                             -2-•.-.'•


S.-WOA-Class I and II $404 Penalties

        Each Regional office shall submit  to Suzanne Schwartz,
 .  Chief, Policy and Regulations Branch, Office of Wetlands
   Protection (OWP), copies of the following prior to issuance:

   1.  The first three Class I and the first three Class II
       combined complaints and penalty orders with accompanying
       letters proposing the assessment of penalties prior to
       issuance under $314 of the WQA.

   2.  The first three Class I and first three Class II
       final penalty orders on consent prior to issuance
       under 5314 of the WQA.  .


C..' Implementation                     .                     '  •

        The Office of'Water Enforcement and Permits or the Office
   of Wetlands Protection, as appropriate, will distribute copies
   of the orders to the Office of Enforcement and Compliance
   Monitoring.  EPA Regions must obtain comments and concurrence
   from OECM - Water, and OWEP or OWP, as appropriate, on initial
   proposed penalty orders/complaints and final orders on consent
   before signing or issuing these documents to the respondent or '
   to any other party outside of EPA.  OECM and OW offices will
   provide one joint response to the Regions to minimize cocrdinatjtw
   burdens on the Regions.

        In order to expedite.Headquarters -review of proposed
   and final orders, the Regions must include, an action memo
   or a fact sheet explaining the factual basis, 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 policy 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 net focus or. Whether an administrative
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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 OH 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 OECN 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 :;,:u:.^
     that OWEP or OWP, and OECM have no comment on the proposed •''•Zyggs
     or final order and concur in its issuance.1

         'Where possible, the Regions are encouraged to forward
     diverse cases, involving a variety of WQA violations, to
     Headquarters1 for concurrence. .                              ''


IV.  Other Procedures to Facilitate National Management o£ 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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                            -<-  '


5.. Automated Tracking of  Penalty Order' Issuance

   Headquarters will .track  the issuance of  adminstrative
   penalty orders for other than Section 404  throuon  the  •
   Permit Compliance System (PCS),  an automated manaaement
   information system for tracking  permit,  compliance, and
   enforcement status of NPDES permittees.  This system is
   managed by the Office of Water Enforcment  and Permits
   with data input at the Regional  or State level.  Regions
   are currently required to track -«£1 enforcement actions
   issued to major permittees  and JRinor PL  92-500 municipal
   permittees. Regions and  States will be given further
   guidance in the near future on the specific  data to be
   entered for administrative  penalty orders.
C. Compendium of Administrative Opinions

   Headquarters will develop a compendium of decisions
   issued by Administrative Law Judges  (ALJ) as well as
   any decisions handed down by courts  on appeal.  This
   compendium of decisions will be provided to Regions on
   a regular basis to assist in .preparing cases to- be'heard
   by ALJs..                        ."
D. Circulation of Noteworthy Opinions/Orders

   In addition to preparation of a compendium, Headquarters
   will distribute copies of noteworthy ALJ decisions as
   well as copies ''of final orders wnicn are particularly
   well done or innovative, to all Regions.  These will be
   distributed periodically, as they, become available t.o
   Headauarters.
t. Coordination on Precedential Issues       .                   '

   From time to time, Regions will identify cases where tne
   issues have national implications or are precedential.
   i'n nature.  In such circumstances, cne Region will oe
   responsible for notifying and woncing witn Headquarters
,   (OECM) to develop arguments to be'used in pleadings to
   presiding officers/administrative law judges.  Additionally,.
   Regions should be aware' that the concurrence of tne Assistant
   Administrator for Enforcement and Compliance Monitoring is
   required before an appeal of an ALJ decision is initialed
  _ and that the same Assistant Administrator must be consul-sad
   when no appeal of an adverse decision is recommended.  (See
   Delegations of Authority.)
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  ?. Headquarters Oversight of Administrative  Penalty

     Headquarters will exercise oversight  of Regional  use of
     administrative penalty authority  primarily't.-.rouah procram
     reviews or audits (e.g., integrated  into  the  annual.mid-year
     evaluation), as opposed to case-by-case,  real-time review.
     The audits will be supplemented by data from  the  automated
     tracking system and information developed cr.rough review
     of the hard copies of penalty orders  suomitted by the
     Regions.  In assessing overall performance, .Headquarters
     will, examine the following.
          - overall penalty levels obtained

          - conformity with penalty policy as estaalished
            through review of penalty worksheets

          - efficiency and use of penalty orders—number of orders
            issued, tiaiely -response and completion, effective
            negotiation and advocacy

          - conformity with national enforcement policy

          - establishment of significant precedent.
Guidance Contacts:

NPDES: Anne Lassiter, OWEP    $404: Rosanna Ciupe*, On? .
       FtS:475-8307                 FTS:47S-8798

                    NPDES and S404: Gary Hess, OECM
                                   • FTS:475-8183
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                                                                  III.B.12.
"Use of Administrative Penalty Orders (APO'S) in FY 89", dated March 13,
1990.  This docuaent is reproduced at VII.IS. below.
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                                                        III.B.13,
"New Administrative Penalty Procedures", dated October 29,1991.
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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON. D.C. 20460
                                 OCT 2 9 'C9!

MEMORANDUM

SUBJECT:  New Administrative Penalty Procedures
FROM:     Edward  E.  Reich                          ^
 i         Acting  Assistant Administrator for Enforcement
       X^LaJuana  S. Wilcher ^	
          Assistant Administrator for Water

TO:       Regional Administrators,  Regions I-X

     As a result of the Administrator's recent delegation of
authorities under  Section  309(g)  of the Clean Water Act (CWA),  we
are now able to implement  as procedural guidance Part 28,  the  new*
CWA Class I administrative penalty procedures,  which were
published in the Federal Register as a proposed rule on July l,
1991.  These new Part  28 procedures should be used,  before final
promulgation, as guidance  in Class I administrative penalty
proceedings under  Section  309(g)  of the CWA.

     We have attached  to this memorandum a copy of (1)  the
Administrator's new delegation of Section 309(g)  Class I
authority;  (2) a redelegation of  Class I CWA  representation
authority from the Assistant Administrator for Enforcement; and
(3) Part 28.

     The attached  Part 28  procedures will supersede as procedural
guidance the presently used  1987  CWA 5309(g)  Class I guidance.
Part 28 should be  used for new CWA S309fg)  Class I proceedings
beginning November j,  1991.   This starting date will allow the
Agency a reasonable transition period between the present and new
procedures.  We intend to  use proposed Part 28  on a pilot basis
generally and evaluate its effectiveness before it becomes a
final rule.  If we find problems  in administering the new
procedures, we will use our  experience to revise them before
their final promulgation.  Although Part 28 also encompasses
elements of the Safe Drinking Water Act,  the  Oil Pollution Act  of
1990, EPCRA and CERCLA, these elements of Part 28 are not being
implemented at this time.  The Office of Enforcement and OSWER
expect to implement the OPA  elements of Part  28 as soon as
possible.
                                                         Printed on Recycled Paper
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                              - 2 -
     We request that the Regions execute necessary redelegations
of authority under new Delegation 2-51 2.a. to initiate Class  I
cases under Part 28 procedures.  Under Delegation 2-51 2.b. the
Regions may choose to designate a standing Presiding Officer for
all Class I cases, or may designate individuals on a case-by-case
basis.  (Because there will be a Presiding Officer assigned in
each Part 28 case, it may be simpler to make a blanket
designation during the next two weeks.)  The Assistant
Administrator for Enforcement has redelegated his authority to
represent the Agency in CWA §309(g) Class I actions to the
Regional Counsels for cases arising in the Regions.

     Part 28 incorporates some different procedures than existing
guidance.  Consequently, the Regions are to submit for review  the
first proposed Part 28 administrative complaint and its cover
letter, and the first proposed consent order, for a total of two
submissions per Region.  OW and OE will only review these
materials for their conformance to the Part 28 procedures, rather
than for statutory or penalty policy consistency, since the
latter are by now well understood.  For those Regions that have
yet to fulfill their concurrence requirements set forth in the
1987 Administrative Penalty Guidance, these Part 28 reviews will *
be counted toward the concurrence requirements but also will
include review for statutory and penalty policy consistency.

     Our offices will use the same ten day review period and
manner of communicating that we previously used in implementing
the 1987 Class I guidance.  Please continue to provide hard
copies of Class I final orders to OWEC and OWOW.  Our contacts
for this review are, for the Office of Water, OWEC (EN-338), Mary
Lawrence (FTS 260-9511) or OWOW (A-104F), Wetlands and' Aquatic
Resources Regulatory Branch, Hazel Groman (FTS 260-8798)  and,  for
OE-Water (LE-134W), the Northern Regions Branch Chief (for
Regions I, II, III, IV, and X) (FTS 260-7888) and the Southern
Regions Branch Chief (for Regions V, VI, VII, VIII and IX) (260-
8177).

     As with other Agency guidance, the decision to use Part 28
procedures does not establish or affect legal rights or
obligations.  Agency decisions in particular cases will be made
by applying the law and regulations to the specific circumstances
of that case.

     If you have any questions, please contact Frederick F.
Stiehl, Enforcement Counsel for Water, at FTS 260-8180, or have
your staff contact David Drelich of his staff at FTS 260-2949.

Attachments

cc:  Deputy Administrator
     Deputy Regional Administrators
-------
Regional Counsels
Water Management Division Directors
Director, Office of Enforcement, Region X
Don R. Clay, OSWER
Environmental Service Division Directors, Regions III and VI
Assistant Regional Administrator for Policy and Management,
  Region VII
-------
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        WASHINGTON, O.C. 20460
                            OCT 29 1991
OFFICE OF ENFORCEMENT
MEMORANDUM

SUBJECT:  Redelegation of authority to represent EPA in non-APA
          enforcement proceedings

FROM:     Edward E.  Reich C—-^""^'  /
          Acting Assistant Administrator for Enforcement

TO:       Regional Counsels,  Regions I-X
          Enforcement Counsel for Water

     I hereby redelegate my authority under Delegation 2-51 l.c
to "represent the complainant in a Class I administrative penalty
proceeding under the CWA before a presiding officer" for cases
arising in the Regions to the Regional Counsels.  The Regional
Counsels may redelegate this authority further to any Agency
attorney.

     I hereby redelegate my authority under Delegation 2-51 l.c
to "represent the complainant .in a Class I administrative penalty
proceeding under the CWA before a presiding officer" for cases
arising at Headquarters to the Enforcement Counsel for Water.
The Enforcement  Counsel for Water may redelegate this authority
further to any Agency attorney.

cc:  Don Clay, OSWER
     LaJuana S.  Wilcher,  OW
     Deputy Regional Administrators,  Regions I-X
                                                         Printed on Recycled Paper
-------
DELEGATIONS MANUAL


                         CLEAN WATER ACT


2—51.     Class I Administrative Penalty Actions

1.  AUTHORITY.  Pursuant to the Clean Water Act the authority to:

     a.  Act as the complainant in a Class I administrative
penalty action under the CWA.

     b.  Conduct proceedings, recommend the form of final Agency
action, issue subpoenas and perform all the presiding officer
functions set forth in applicable Agency guidance or regulations
governing the administration of Class I administrative penalty
actions under the CWA.

     c.  Represent the complainant before a presiding officer in
a Class I administrative penalty proceeding under the CWA.

     d.  Issue an order on consent between the Agency and a
respondent resulting from the initiation of a Class I
administrative penalty action under the CWA.

     e.  Act as deciding official in a contested or default Class
I administrative penalty action under the CWA, and to assess a
penalty in such a proceeding.

     f.  Review sua sponte any exercise of the authority
described in l.e in a contested or a defaulted action.

2.  TO WHOM DELEGATED.

     a.  The authority in l.a is delegated to the Regional
Administrators, the Assistant Administrator for Water, and the
Assistant Administrator for'Solid Waste and Emergency Response,
for the purpose of redelegation.

     b.  The authorities in l.b are delegated to the Regional
Administrators for the purpose of redelegation, and are delegated
to the General Counsel.

     c.  The authority in l.c is delegated to the Assistant
Administrator for Enforcement.
-------
DELEGATIONS MANUAL

                         CLEAN WATER ACT


2-51.     Class I Administrative Penalty Actions   (cont'd)

     d.  The authority in l.d is delegated to the Regional
Administrators, the Assistant Administrator for Water, and the
Assistant Administrator for Solid Waste and Emergency Response.
                                        \
     e.  The authorities in l.e are delegated to the Regional
Administrators, the Assistant Administrator for Water, and the
Assistant Administrator for Solid Waste and Emergency Response.

     f.  The authority in l.f is delegated to the Chief Judicial
Officer.

3.  LIMITATIONS.

     a.  The Assistant Administrator for Water shall exercise the
applicable authorities only for Class I actions conducted under
Section 309(g).  The Assistant Administrator for Solid Waste and
Emergency Response shall exercise the applicable authorities only
for Class I actions conducted under Section 311.

     b.  The Regional Administrators and the Assistant
Administrators shall redelegate the authority in l.a.  The
delegatee of the Assistant Administrator for Water or the
Assistant Administrator for Solid Waste and Emergency Response
may exercise such authority only in multi-Regional cases or cases
of national significance.

     c.  The delegatee of the Assistant Administrator for Water
(or the Assistant Administrator for Solid Waste and Emergency
Response, as appropriate) shall consult with the appropriate
Regional Administrator or designee before initiating a Class I
action.

     d.  The General Counsel or his delegatee may exercise the
authorities described in l.b only in cases initiated by the
delegatee of the Assistant Administrator for Water or the
Assistant Administrator for Solid Waste and Emergency Response.

     e.  The.Regional Administrators and the appropriate
Assistant Administrator may exercise the authority in I.e. only
if (1) the delegatee of such official initiated the action and
(2) such official or his delegatee provides the Chief Judicial
Officer with a timely copy of the decision in a contested or a
defaulted action so that there is an opportunity for a sua soonte
review.
-------
DELEGATIONS MANUAL


                         CLEAN WATER ACT


2-51.     Class I Administrative Penalty Actions   (cont'd)
        •                            *                 -  '

4. REDELEGATION AUTHORITY.

     a.  The Regional Administrators may redelegate the
authorities in l.a and l.d to the branch chief level.  The
appropriate Assistant Administrator may redelegate the
authorities in l.a and l.d to the division director level.

     b.  The Regional Administrators shall, and the General
Counsel may, redelegate the authorities in l.b. to a person
meeting the neutrality requirements of applicable Agency guidance
or regulations.

     c.  The Assistant Administrator for Enforcement may
redelegate the authority in I.e. to ah Agency attorney.

     d.  The Regional Administrators may redelegate the authority*
in I.e. on a caseHay-case basis to the person exercising the
authorities in l.b.  The Assistant Administrator for Water and
the Assistant Administrator for Solid Waste and Emergency
Response may not redelegate the authority in I.e.

     e.  The Chief Judicial Officer may redelegate the authority
in l.f. to a Headquarters Judicial Officer.

5.  ADDITIONAL REFERENCES.

     a. Section 309 of the Clean Water Act, 33 U.S.C.  Section
1319, as amended by the Water Quality Act of 1987.

     b. Section 311 of the Clean Water Act, 33 U.S.C.  Section
1321, as amended by the Oil Pollution Act of 1990.

     c. Agency guidance or regulations governing Class I
administrative penalty actions under the Clean Water Act.
-------
       PART 28 — CONSOLIDATED RULES OF PRACTICE GOVERNING
          THE ADMINISTRATIVE ASSESSMENT OF CLASS I CIVIL
      PENALTIES TINDER THE CLEAN WATER ACT, THE COMPREHENSIVE
       ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY
          ACT, AND THE EMERGENCY PLANNING AND COMMUNITY
       RIGHT-TO-KNOW ACT, AND THE ADMINISTRATIVE ASSESSMENT
              OF CIVIL PENALTIES UNDER PART C OF THE
                     SAFE DRINKING WATER ACT
                 Subpart A — General Provisions

Sec.
28.1   Purpose and scope.
28.2   Definitions.
28.3   Number and gender.
28.4   Presiding Officer.
28.5   Hearing Clerk.
28.6   Representation by Counsel.
28.7   Computation of time.
28.8   Limitations on written legal arguments or statements.
28.9   Service of documents.
28.10  Parties' burdens of going forward, proof and persuasion.
28.11  Subpoenas.
28.12  Prohibited communication.
28.13  Request for alternate Presiding Officer.
28.14  Unavailability of administrative appeal; limitation on
       requests for reconsideration.
28.15  Prospective effect of this Part.


                     Subpart B — Prehearing

28.16  Initiation of action.
28.17  Availability of documents filed with the Hearing Clerk.
28.18  Withdrawal of amendment of administrative complaint.
28.19  Consultation with State [Section 309(g)  of the Clean Water
       Act only].
28.20  Responses to administrative complaint.
28.21  Default proceedings.
28.22  Consent orders.
28.23  Prehearing conference.
28.24  Information exchange.
28.25  Summary determination and accelerated recommended
       decision.

                      Subpart C  —  Hearing

28.26  Liability hearing.


                    Subpart D — Post-Hearing
-------
                               -  2  -
28.27  Recommended decision.
28.28  Decision of the Regional Administrator.
28.29  Sua sponte review.
28.30  Petition to set aside an order  [Section  309(g)  of  the
       Clean Water Act only].
28.31  Payment of assessed penalty.


                  SUBPART A - GENERAL PROVISIONS

$28.1 Purpose and Scope.

     This Part sets forth procedures for the efficient and timely
initiation and administration of administrative actions under
Sections 309(g)(2)(A) and 3ll(b)(6)(A) and  (B) (i) of the  Clean
Water Act (CWA), 33 U.S.C. §§1319(g)(2)(A)  and  1321(b)(6)(A) and
(B)(i); certain actions under Section  1423(c) of the Safe
Drinking Water Act (SDWA), 42 U.S.C. §300h-2(c); Section  109(a)
of the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), as amended by  the Superfund Amendments
and Reauthorization Act  (SARA), 42 U.S.C. §9609(a); and,  certain
actions under Section 325(b)(l), (c)(l), (c)(2) and (d) of the
Emergency Planning and Community Right-To-Know Act (EPCRA), 42
U.S.C. §11045(b)(1), (c)(l), (c)(2) and (d).  Nothing  in  this
Part authorizes any person to challenge in  any action  commenced
under this Part any final State or Agency action, including the
validity or reasonableness of any applicable permit or permit
condition or (in the case of the Safe  Drinking Water Act), any
regulation establishing an authorization by rule.  Nothing in
this Part shall affect the authority of the Administrator to
implement or enforce any other provision of law.

§28.2 Definitions.

     (a) Administrative complaint means a document issued by the
complainant that:

          (1) Names one or more respondents;

          (2) Alleges one or more violations of applicable law,
stating with reasonable specificity the nature of.the  alleged
violations;

          (3) Proposes a penalty be assessed upon the  respondent
as authorized by applicable law;

          (4) [Safe Drinking Water Act compliance actions only]
Seeks respondent's compliance with applicable law and  may propose
a reasonable time for achieving compliance; and
-------
       PART 28 — CONSOLIDATED RULES OF PRACTICE GOVERNING
          THE ADMINISTRATIVE ASSESSMENT OF CLASS I CIVIL
      PENALTIES UNDER THE CLEAN WATER ACT, THE COMPREHENSIVE
       ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY
          ACT, AND THE EMERGENCY PLANNING AND COMMUNITY
       RIGHT-TO-KNOW ACT, AND THE ADMINISTRATIVE ASSESSMENT
              OF CIVIL PENALTIES UNDER PART C OF THE
                     SAFE DRINKING WATER ACT
                 Subpart A — General Provisions

Sec.
28.1   Purpose and scope.
28.2   Definitions.
28.3   Number and gender.
28.4   Presiding Officer.
28.5   Hearing Clerk.
28.6   Representation by Counsel.
28.7   Computation of time.
28.8   Limitations on written legal arguments or statements.
28.9   Service of documents.
28.10  Parties' burdens of going forward, proof and persuasion.
28.11  Subpoenas.
28.12  Prohibited communication.
28.13  Request for alternate Presiding Officer.
28.14  Unavailability of administrative appeal; limitation on
       requests for reconsideration.
28.15  Prospective effect of this Part.


                     Subpart B — Pr•hearing

28.16  Initiation of action.
28.17  Availability of documents filed with the Hearing Clerk.
28.18  withdrawal or amendment of administrative complaint.
28.19  Consultation with State [Section 309(g)  of the Clean Water
       Act only].
28.20  Responses to administrative complaint.
28.21  Default proceedings.
28.22  Consent orders.
28.23  Prehearing conference.
28.24  Information exchange.
28.25  Summary determination and accelerated recommended
       decision.

                      Subpart C  ~  Hearing

28.26  Liability hearing.


                    Subpart D — Post-Hearing
-------
                               -  2  -
28.27  Recommended decision.
28.28  Decision of the Regional Administrator.
28.29  Sua sponte review.
28.30  Petition to set aside  an order  [Section  309(g)  of  the
       Clean Water Act only].
28.31  Payment of assessed penalty.


                  SUBPART A - GENERAL PROVISIONS

S28.1 Purpose and Scope.

     This Part sets forth procedures for the efficient and timely
initiation and administration of administrative actions under
Sections 309 (g) (2) (A) and 311(b)(6)(A) and  (B).(i) of the  Clean
Water Act (CWA), 33 U.S.C. §§1319(g)(2)(A)  and  1321(b)(6)(A) and
(B)(i); certain actions under Section  1423(c) of the Safe
Drinking Water Act (SDWA), 42 U.S.C. $300h-2(c); Section  109(a)
of the Comprehensive Environmental Response, Compensation,  and
Liability Act  (CERCLA), as amended by  the Superfund Amendments
and Reauthorization Act  (SARA), 42 U.S.C. $9609(a); and,  certain
actions under Section 325(b)(l), (c)(1), (c)(2) and  (d) of the
Emergency Planning and Community Right-To-Know  Act (EPCRA),  42
U.S.C. §11045(b).(l), (c)(l),  (c)(2) and (d).  Nothing  in  this
Part authorizes any person to challenge in  any  action  commenced
under this Part any final State or Agency action, including the
validity or reasonableness of any applicable permit or permit
condition or (in the case of  the Safe  Drinking  Water Act),  any
regulation establishing an authorization by rule.  Nothing in
this Part shall affect the authority of the Administrator to
implement or enforce any other provision of law.

S28.2 Definitions.

     (a) Administrative complaint means a document issued by the
complainant that:

          (1)  Names one or more respondents;

          (2)  Alleges one or  more violations of applicable law,
stating with reasonable specificity the nature  of.the  alleged
violations;

          (3)  Proposes a penalty be assessed upon the  respondent
as authorized by applicable law;

          (4)  [Safe Drinking Water Act compliance actions only]
Seeks respondent's compliance with applicable law and  may propose
a reasonable time for achieving compliance; and
-------
                               - 3 -


           (5) Is certified by  signature of Agency counsel  as  a
legally sufficient pleading.

      (b) Administrative record means  (except for purposes  of
proposed.SDWA and CWA §309(g)  consent orders lodged pursuant  to
§§28.22[b] and 28.28[b] of this Part) the following documents
that are filed with or by the  Hearing Clerk:

           (1) Documentation relied upon by the complainant, to
support the allegations as to  liability which were set forth  in
the administrative complaint;

           (2) Any record held  by the Agency of any previously
adjudicated violation by the respondent of any federal pollution
control or environmental statute or regulation;

           (3) The administrative complaint and proof of its
service;

           (4) [Section 309(g)  of the Clean Water Act only]  The
record or summary of the complainant's consultation or provision
of opportunity for consultation with the State 'in which the
alleged violations occurred;

           (5) [Safe Drinking Water Act and Section 309(g) of  the
Clean water Act only]  A copy  of the public notice provided by
the complainant pursuant to §28.16(d) of this Part and proof  of
its publication;

           (6) The record of the designation of the Presiding
Officer;

           (7) [Safe Drinking Water Act and Section 309(g) of  the
Clean Water Act only]  A memorialization of the date of lodging
of any proposed consent order;

           (8) Each action, including the issuance of a subpoena
pursuant to S28.11(a) of this  Part, memorialized in writing and
signed by the Presiding Officer;

           (9) Each document that is timely submitted by any
participant or any member of the public pursuant to the
requirements and subject to the limitations established pursuant
to §§28.2(g), 28.4(a), 28.8, 28.9(a), 28.13(a), 28.20(a-c)  and
(f), 28.21(b), 28.22(a)(l),  28.25(a)(l)  and (b), 28.26(d)(e)(h)
(i) and (k), and 28.*0(a) of this Part;

           (10) A verbatim record or transcription of any
liability hearing held under §28.26 of this Part or of any  oral
argument regarding a determination of remedy presented pursuant
to  this Part;
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                             •  -  4 -


           (11) Any recommended decision  of  the  Presiding Officer;

           (12) Any document  filed by  the Regional Administrator
pursuant to §28.28(d) of this  Part;

           (13) [Section 309(g) of the Clean Water Act  only]   Any
evidence regarding the respondent in  an  action  under this Part
presented  by a participating commenter to the Regional
Administrator and timely filed with the  Hearing Clerk  as part of
a request  to set aside an order  pursuant to 528.30(a)  of this
Part and Section 309(g)(4)(C)  of the  Clean  Water Act,  33 U.S.C.
S1319(g)(4)(C).

           (14) Any applicable  Agency  policy (excluding any Agency
policy, or portion thereof,  that applies to settlement of a
penalty claim) concerning the  assessment of an  administrative
penalty, and any information relevant to a  penalty determination
under such policy;

           (15) Any relevant  document  which  the  Presiding Officer
finds will assist in the timely  and efficient resolution of the
action and which is not:

               (i) A prohibited  communication as defined by
subsection (p) of this section;

               (ii) Excluded from the administrative record by
the failure of a participant to  meet  a deadline or other
requirement regarding a document referenced by  paragraph (b)(9)
of this subsection, excluded by  operation of §28.2(b)(14),
§28.4(c)(5) or (6) or §28.24(e)(l) of this  Part, or excluded  by
any sanction an Agency decisionmaker  imposes pursuant  to this
Part in connection with the  conduct of an action; or

               (iii) [Safe Drinking Water Act and Section 309(g)
of the Clean Water Act only]   Lodged  with the Hearing  Clerk
pursuant to §28.22(b) (.1) (i)  of this Part.

           (16) Any record of recusal  by  an  Agency decisionmaker;
           (17) Any record of payment  of  an  assessed civil penalty
submitted  pursuant to §28.31 of  this  Part;  and

           (18) [Safe Drinking  water Act  compliance action only]
Any record of the respondent's compliance with  the terms of the
administrative order.

     (c) Administrator means the Administrator  of the  United
States Environmental Protection  Agency or his delegate.

     (d) Agency means the United States  Environmental  Protection
Agency.
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                              - 5 -
      (e) Agency counsel means any Agency attorney who represents
the complainant in an action under this Part;

      (£) Agency decisionmaker means the Presiding Officer, the
Regional Administrator, the Administrator, or any neutral Agency
employee' who advises the Regional Administrator or Administrator
relating to the merits of an action under this Part;

      (g) [safe Drinking Water Act and Section 309(g) of the Clean
Water Act only]  Commenter means any person  (other than a party)
or representative of such person who, by the deadline prescribed
by, S28.20(c) of this Part:

          (1) Declares in writing to the Hearing Clerk that for
purposes of the noticed action he is providing comments pursuant
to the Clean Water Act or Safe Drinking Water Act, whichever
applies, and intends to participate in the action;

          (.2) Submits comments on the allegations set forth in
the administrative complaint or the relief proposed in the
administrative complaint, or both, or specifies such allegations
or proposed relief upon which he will comment; and

          (3) Provides the Hearing Clerk with a return address.

      (h) complainant means the Agency, acting through any Agency
employee authorized by the Administrator to initiate an action
under this Part or authorized to conclude such an action, in
whole or in part, upon consent;

      (i) Consent order means a written order, issued by the
Regional Administrator and agreed to by one or more respondents,
consisting of:

          (1) Uncontested findings of fact by the Agency and
stipulations by the parties.establishing subject matter
jurisdiction;

          (2) Uncontested findings of fact by the Agency
establishing the respondent's violation of applicable law which
has been alleged in the administrative complaint;

          (3) An order consented to by the parties which assesses
a civil penalty that explicitly takes into account the penalty
factors applicable under law and (in the case of the Safe
Drinking Water Act) a compliance remedy which is reasonably
related to the respondent's violation of law;

          (4) [Section 309(g) of the Clean water Act only]  In
any action in which a commenter is participating pursuant to
§§28.2(g)  and 28.20(c)(2) of this Part, a statement that any
-------
                               -  6  -
                         x. •

commenter to the action under  this Part and Section 309(g)  of  the
Clean Water Act, 33 U.S.C. §1319(g), may petition the Regional
Administrator to set aside the order under §28.30 of this Part;

          (5) [Safe Drinking Water Act only]   In any action in
which a commenter is participating pursuant to S§28.2(g) and
28.20(c)(2) of this Part, a statement that any commenter to the
action under this Part and Section 1423(c) of  the Safe Drinking
Water Act, 42 U.S.C. §300h-2(c), may file in the appropriate
federal district court an appeal of a final consent order
pursuant to Section 1423(c)(6) of  the Safe Drinking Water Act, 42
U.S.C. §300h-2(c)(6), within thirty days of the date the final
consent order is issued;

          (6) A statement that the respondent  waives its right
under applicable law to file in the appropriate federal court  an
appeal of the consent order;

          (7) Provisions requiring payment of  the agreed civil
penalty pursuant to §28.31 of  this Part;

          (8) A statement that each signatory  party shall bear
its own costs and fees; and

          (9) All terms of the agreement as authorized by
applicable law.

     (j) Document means any record or collection of information
maintained in a discrete physical  form;

     (k) Interested person means any:

          (1) Agency employee  or contractor who may or does
investigate, litigate, or present  information  or evidence,
arguments, or the position of  the  Agency in the action before  the
Presiding Officer, or who advises .such an Agency employee
regarding the action;

          (2) Agency employee  who  actively participated at any
time, directly or as a supervisor, in any preparation,
investigation or deliberations resulting in the issuance of  the
administrative complaint;

          (3) Person who the complainant may arrange to have
appear as a witness on its behalf  in the action; and

          (4) Non-Agency participant, witness  or agent of a  non-
Agency participant, or defaulted respondent.
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                              - 7  -
      (1) Participant: means any party or  (in the  case  of  the Safe
Drinking Water Act or Section 309[g] of  the Clean Water  Act)  any
commenter.

      (m) Party means the complainant, or any respondent  who-has
complied with the requirements of §28.20(a) or  (b) of this  Part
and who has not been sanctioned by the Presiding Officer with a
finding of default.

      (n) Presiding Officer means an Agency attorney who  is  to
preside over an action conducted pursuant to this Part,  and who
is to make a recommended decision thereon.

      (o) Proceeding means any hearing, determination  or  other
activity involving the parties conducted by the  Presiding Officer
pursuant to the requirements of this Part;

      (p) Prohibited communication means  any communication,
documentary or oral, between an interested person and an Agency
decisionmaker (except between certain interested persons and  the
Regional Administrator pursuant to §28.22[b][l]  Of this  Part),
regarding:

          (1) The merits of an action under this Part, without
each other party to the action having had an opportunity
simultaneously to participate in or respond to such
communication;

          (2) The substance of any settlement negotiation between
parties or the substance of any proposed consent order lodged
with the Hearing Clerk; or

          (3) The substance of a recommended decision set forth
by the Presiding Officer pursuant to §§28.2(r) and 28.27(a)(3) of
this Part..

      (q) [Safe Drinking Water Act and Section 309(g)  of  the Clean
Water Act only] Public notice means a document consisting of:

          (1) The name and address of the EPA office  initiating
the referenced action;

          (2) The name and address of the respondent,  and the
activity and facility or site which the  administrative complaint
addresses;                  .

          (3) A brief description of the business or  activity
conducted by the respondent;

          (4) Any permit number and permit issuance date
referenced by the administrative complaint, or (in the case of
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                              - 8 -


the Safe Drinking Water Act) any regulation establishing an
authorization by rule referenced by the administrative complaint;

           (5) A brief description of the allegations of
violations in the administrative complaint and the relief
proposed by the complainant;

           (6) The name, address and telephone number of the
Hearing Clerk from whom interested persons may obtain further
information;

           (7) A brief statement of the opportunity for any member
of the public to submit written comments on the administrative
complaint to the Hearing Clerk, and the deadline for the
submission of such comments;

           (8) A brief description of the procedure by which a
member of the public may become a participant in an,action
pursuant to §§28.2(g) and 28.20(c) of this Part;

           (9) A brief statement of the authority of the Regional
Administrator to issue an order upon default if respondent fails
to file a response within the time period specified in §28.20 of
this Part;

           (10) [Safe Drinking Water Act only]   A brief, general
description of the name or general description of the receiving
formation and the location of the well field, or each existing,
new or proposed injection well, whichever applies; and

           (11) A brief statement describing the location and
availability  (pursuant to §28.17 of this Part) of documents filed
with the Hearing Clerk in the action.

     (r) Recommended decision means a document written by the
Presiding Officer, in the form of a decision by the Regional
Administrator pursuant to the requirements of §28.28(a)(3) of
this Part, which recommends that the Regional Administrator
either:                                 .

           (1) Withdraw the administrative complaint on the basis
that the administrative complaint does not state a cause of
action or that the allegations of fact and conclusions of law in
the administrative complaint are not supported by the
administrative record; or

           (2) Issue an order on the basis that the administrative
record and applicable law support such an order.

     (s) Regional Administrator means the Administrator of any
Regional Office of the Agency or his delegate.  In a case where
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                              - 9 _
an authorized Agency Headquarters employee  initiates  an  action
under this Part, the term  "Regional Administrator"  as used  in
these rules shall mean the Administrator.

     (t) Respondent means  any person named  in the caption of  an
administrative complaint,  or representative of such person, who
the complainant alleges is liable for the redress of  any
violation alleged in the complaint.

     (u) Response means a  document, responsive to the
administrative complaint and sighed by the  respondent, that
consists of the name, address and telephone number  of the
respondent and, if the respondent is represented by counsel,  also
includes the name, address and telephone number of  the
respondent's counsel and that:

          (1) Admits liability; or

          (2) Denies liability in whole or  in part  and specifies
each allegation of fact or conclusion of law as to  liability
which is in dispute and the specific factual or legal grounds  for
the respondent's defense;  and

          (3) Opposes or agrees to pay the  proposed penalty in
the administrative complaint and (in the case of the  Safe
Drinking Water Act) opposes or agrees to comply with  the relief
requested in the administrative complaint regarding the
regulation, schedule, or other.requirement  of the applicable
underground injection control program that  is alleged in the
administrative complaint to have been violated, or  both.

$28.3 Number and gender.

     For purposes of this  Part,  words in the singular also
include the plural and words in the masculine gender  also include
the feminine and vice versa, as appropriate.

S28.4 Presiding Officer.

     (a) Authority,

          (1) The Presiding Officer may by  a signed filing with
the Hearing Clerk:

               (i) Issue a subpoena pursuant to S28.ll of this
Part;

               (ii) Allow  the withdrawal or amendment  of an
administrative complaint pursuant to §28.18(a)(2) or  (b)(2)  of
this Part;
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                              - 10- -


                (iii) Determine liability, direct entry  of  default
as to liability, and conduct a default remedy determination
proceeding pursuant to §28.21 of this Part;

                (iv) Allow amendment of a response pursuant to
§28.20(f)(2) of this Part;

                (v) Set alternate limitations on written legal
arguments, or statements pursuant to §28.8 of this Part;

                (vi) Issue or modify a prehearing order  pursuant
to §28.23(d) of this Part;

                (vii) Schedule and further limit information
exchange pursuant to §28.23(b)(2) of this Part, and  (in a  Clean
Water Act or Safe Drinking Water Act action) delay information
exchange pursuant to §28.24(c)(2) of this Part;.

                (viii) Reschedule proceedings pursuant to §28.22
of this Part;

                (ix) Make a summary determination pursuant  to
§28.25 of this Part?

                (x) Notify participants of the occurrence of a
prohibited communication pursuant to §28.12(b) of this  Part;

                (xi) Impose sanctions (other than by fine or
imprisonment) pursuant to §§28.12(c) and 28.24(e)(2) of  this  Part
or to aid in the maintenance of order and the efficient  and
impartial administration of justice;

                (xii) Certify the administrative record  and set
forth and transmit a recommended decision pursuant to §28.27(a)
of this Part; and

                (xiii) Waive payment conditions pursuant, to
§28.31(b) of this Part; and

          (2) The Presiding Officer may:

                (i) Except as more specifically provided  by
paragraph (a)(1) of this subsection, schedule and take  certain
administrative actions in conducting any proceeding pursuant  to
§28.25 or §28.26 of this Part; and

                (ii) Except as more specifically authorized or
limited by paragraphs (a) and (c) of this section and the
requirements of this Part, take any other action specifically
authorized by this Part or necessary to conduct an action
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                              - 11 -
under this Part which will aid  in the efficient  and  impartial
administration of justice.

     (b) Duties.  The Presiding Officer shall  in a timely
fashion:

          (1) Carry out his duties as required by this Part;

          (2) Oversee and direct the activities  of the Hearing
Clerk in an action under this Part;

          (3) Schedule activities of the participants pursuant to
the requirements of this Part;

          (4) Memorialize in a  signed writing  filed with the
Hearing Clerk:

               (i) Any action he takes pursuant  to his authority
provided by paragraph (a)(1) of this section;     ,

               (ii) Any deadline he establishes  pursuant to his
authority provided by subsection (a) of this section; and

               (iii) Any significant action he takes pursuant to
his authority provided by paragraph (a)(2) of  this section; and

          (5) Except as limited by paragraph (c)  of this section
and the requirements of this Part, take any other action
necessary for the maintenance of order and for the efficient and
impartial adjudication of allegations arising  in an action under
this Part.

     (c) Limitations.  The Presiding Officer shall not:

          (1) Have any prior connection with the action before
him including the performance or supervision of  investigative or
prosecutorial functions;

          (2) Have any interest in the outcome of the action
before him;

          (3) Initiate or knowingly engage in  any prohibited
communication with any interested person or fail to disclose any
attempt by any interested person to initiate or  engage in any
prohibited communication;

          (4) Grant an extension, delay, continuance or stay to a
participant based on a participant's request for information
pursuant to law outside the scope of this Part;
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                              - 12 -


           (5) Allow the introduction of any document or testimony
into the administrative record relating to settlement of the
instant action or of any other action;

           (6) Hear or consider any challenge to a final State or
Agency action, including the issuance of any applicable permit or
(in the case of the Safe prinking Water Act) the promulgation of
any applicable authorization by rule; or

           (7) Dismiss the administrative complaint.

§28.5 Bearing Clerk.

     The Regional Administrator shall designate a Hearing Clerk.
The Hearing Clerk, in addition to carrying out his duties as
specified elsewhere by this Part, shall:

     (a) Immediately notify in writing the complainant and each
respondent of the name of the Presiding Officer designated under
§28.16(h) of this Part, and (in the case of the Safe Drinking
Water Act and Section 309[g] of the Clean Water Act) the Hearing
Clerk shall notify in writing each commenter upon the close of
the comment period provided pursuant to §28.20(c) of the name of
the Presiding Officer designated under §28.16(h) of this Part.
The Hearing Clerk shall immediately notify in writing each
participant of the name of any Presiding Officer designated under
§28.13(b) of .this Part;

     (b) [Safe Drinking Water Act and Section 309(g) of the Clean
Water Act only]  Create and maintain a list of all commenters
identified under §§28.2(g) and 28.20(c) of this Part;

     (c) [Safe Drinking Water Act and Section 309(g) of the Clean
Water Act only]  In any action in which a commenter participates
pursuant to §28.20(c)(2) of this Part, immediately after the
deadline prescribed by §28.20(c) of this Part notify the
Presiding Officer and each participant of the name and address of
each participant in the action, and of the name and address of
Agency counsel and counsel for the respondent, if any;

     (d) Record the date of receipt of each document received
regarding the action or (in the case of a Safe Drinking Water Act
compliance order) regarding the respondent's compliance with the
terms of the order;

     (e) Immediately notify the Presiding Officer of the receipt
of any document filed with the Clerk by any participant;

     (f) [Safe Drinking Water Act and Section 309(g) of the Clean
Water Act only]  Maintain securely and make available to each
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                           :   - 13 -


non-signatory participant each document lodged pursuant  to the
requirements of §28.22(b) of this Part;

      (g) Bill any costs accrued under §28.17(c) of this  Part;

      (h) [Safe Drinking Water Act and Section 309(g) of  the Clean
Water Act only]  Remove from the file and return to the  signatory
parties any  proposed consent order and supporting explanation
upon the disapproval of such proposed order by the Regional
Administrator pursuant to §28.28(b) of this Part;

      (i) Perform such other ministerial and clerical matters as
required by the Presiding Officer to assist him in carrying out
his responsibilities under this Part; and

      (j) Perform such ministerial and clerical matters as
required by the Regional Administrator or Administrator  to assist
him in carrying out his responsibilities under this Part.

528.6 Representation by counsel.

     A respondent or commenter may be represented by counsel at  *
any stage of an action conducted under this Part.  The
complainant shall be represented by Agency counsel in all
proceedings under this Part.

§28.7 Computation of time.

      (a) Computation of days. In computing any period of time in
an action under this Part, the day of the event from which the
designated period runs shall not be included.  Saturdays, Sundays
and federal holidays shall be included, except that when a
deadline falls on a Saturday, Sunday, or federal holiday, the
deadline shall be extended to the next business day.

      (b) Time of notice.  Except as specifically provided
elsewhere in this Part, for purposes of this Part, notice shall
be deemed given at the time of personal service, or five days
after the date of mailing or other means of substituted  service,
except that if notice is provided by certified mail, return
receipt requested, (or its equivalent pursuant to $28.9  of this
Part) notice occurs on the date that the return receipt  (or its
equivalent) is signed.

      (c) Time of compliance.  Except as provided otherwise by the
Presiding Officer or §28.24(c)(l) of this Part, a participant
shall be deemed to have complied with a deadline under this Part
if the participant either responds personally or posts the
response by first class mail (or any other messengered service
that is no less speedy and reliable) by the applicable deadline.
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                              - 14 -


§28.8 Limitations oa written legal arguments or statements.

     Any written legal argument or statement submitted to the
Presiding Officer by a participant in an action under this Part
shall be double spaced and typed  in pica (twelve point) or larger
type.  Except as otherwise provided by this Part, further limited
by the Presiding Officer, or otherwise authorized by the
Presiding Officer for good cause  shown, ho written legal argument
or statement, exclusive of any supporting documentation, may
exceed:

     (a) Twelve pages, if an initial argument;

     (b) Six pages, if a responsive argument; and

     (c) Three pages, if an argument in reply specifically
authorized by the Presiding Officer; or

     (d) Ten pages, if a statement specifically authorized by the
Presiding Officer.

$28.9 Service of documents.

     (a) By participants.  Except as otherwise provided by this
Part, each participant in an action simultaneously shall serve
with an attached certificate of service upon each other
participant and the Presiding Officer, personally or by first
class or certified mail (or any other manner of messengered
service that is no less reliable  or speedy), a copy of each
pleading and shall file the original pleading and the attached
certificate of service with the Hearing Clerk.

     (b) By the Hearing Clerk.  Except as otherwise provided by
this Part, the Hearing Clerk promptly shall serve with an
attached certificate of service upon each participant, personally
or by first class or certified mail (or any other manner of
messengered service that is no less reliable or speedy), any
notice, ruling, order, or other document issued by the Presiding
Officer, Regional Administrator, .or Administrator.

     (c) Upon counsel.  Except for service of the administrative
complaint or as otherwise ordered by the Presiding Officer, any
service made upon a participant who is represented by an attorney
shall be made by serving the participant's attorney.

$28.1© Parties' burdens of going  forward/ proof and persuasion.

     (a) Complainant's burden of  going forward.  The complainant
has the burden pursuant to §28.16(a) of this Part of presenting a
cause of action and request for relief in the administrative
complaint.
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                              - 15 -
      (b) Respondent's burden of going forward.   The  respondent
has the burden of timely presenting:

           (1) In its responsive pleading made pursuant  to
§§28.2(u) and 28.20 of this Part any exculpatory statement as  to
liability and any statement opposing the complainant's  request
for relief proposed in the administrative complaint;  and

           (2) All information requested by the complainant
pursuant to §28.24(b)(2) of this Part and known  to the
respondent.

      (c) Parties', joint burden of going forvard.  [Safe Drinking
Water Act and section 309(g) of the Clean Water  Act only]   Each
signatory to a lodged proposed consent order shares the burden,
upon  the request of the Regional Administrator pursuant to
§28.22(b)(1)(ii) of this Part, of presenting to.the Regional
Administrator information supporting the legal bases  of the
proposed order.

      (d) Complainant's burden of proof.  Except  where the
respondent has failed to carry a burden of going forward as to a
given matter under paragraph (b)(1) of this section,  in any
hearing under §28.26 of this Part the complainant has the  burden
of proving each allegation of fact in the administrative
complaint by a preponderance of the evidence.

      (e) Parties' burden of persuasion.  Except  where the
respondent has failed to carry a burden of going forward as to a
given matter under paragraph (b)(2) of this section,  in any
proceeding under this Part the proponent of an argument to the
Presiding Officer has the burden of persuasion.

S28.ll Subpoenas.

      (a) Issuance.   The Presiding Officer may, on his own
initiative or at the request of a party, subpoena the testimony
of witnesses or the production of documents, or  both, for  a
hearing as to liability conducted pursuant to §28.26  of this
Part, in order to determine the truthfulness of  any allegation as
to liability included in the administrative complaint or
statement as to liability made in the response.

      (b) Service.  The Presiding Officer shall serve  the subpoena
upon its recipient in the manner prescribed for  the service of an
administrative complaint pursuant to §28.16(c) of this Part.

      (c) Filing with Hearing Clerk.  The Presiding Officer  shall
file a copy of the subpoena with the Hearing Clerk,  who shall
serve it on the parties in the manner required by §28.9(b)  of
this Part.
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                              - 16 -


§28.12 Prohibited communication.

      (a) Prohibition.  No  interested person or Agency
decisionmaker shall initiate or engage in any prohibited
communication.

      (b) Notification and  opportunity for investigation.   If
during proceedings under this Part the Presiding Officer receives
or becomes aware of a prohibited  communication by any  interested
person, he shall immediately notify each participant of the
circumstances and substance of the communication.  If  a
participant in the action  initiated or engaged in any  prohibited
communication as defined by §28.2(p)(2) of this Part or a
prohibited communication as defined by §28.2(p)(l) of  this Part
which was significant or prejudicial, or caused it to  be made,
the Presiding Officer shall upon  the request of any participant
require the participant who so communicated or caused  the
communication to be made,  to the  extent consistent with justice
and applicable law, to show cause why that participant's claim or
interest in the action should not be denied, disregarded,  or
otherwise adversely affected on account of such communication.

      (c) Sanctions or recusal.                       • ,

          (1) Except as otherwise provided in paragraph (c)(2) of
this section, the Presiding Officer may, at any time before
transmission of a.recommended decision under §28.27(a)(3)  of this
Part, impose a sanction on any participant who has initiated or
engaged in a prohibited communication in violation of paragraph
(a) of this section, or caused such communication to be made.

          (2) The Regional Administrator may, at any time
following transmission of  a recommended decision under §28.27(a)
of this Part, impose a sanction (other than by fine or
imprisonment) on any participant who, after such transmission,
has initiated or engaged in a prohibited communication in
violation of paragraph (a) of this section, or caused such
communication to be made.  [Safe Drinking-Water Act and Section
309(g) of the Clean Water  Act only]  During any suspension of
proceedings pursuant to §28.22(b)(2) of this Part, the Regional
Administrator may impose a sanction (other than by fine or
imprisonment) on any participant who has initiated or engaged in
a prohibited communication, or caused such communication to be
made.

          (3) Any Agency decisionmaker who has initiated or
knowingly engaged in prohibited communication shall recuse
himself from further participation in the action except as a
witness.

§28.13 Request for an alternate Presiding Officer.
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                             — 17 -
      (a) J?eguest.  A "party may, by filing with the Hearing Clerk
a legal argument with supporting affidavits, request the Regional
Administrator to designate an alternate Presiding Officer on the
basis that the Presiding Officer has not met a limitation imposed
by §28.4(c) of this Part or has substantially failed to comply
with his duties under §28.4(b) of this Part.

      (b) Decision.  The Regional Administrator's decision on a
request for an alternate, Presiding Officer shall be in writing
and shall be supported by findings.  The Regional Administrator
shall grant the request and designate an alternate Presiding
Officer if he determines that the challenged Presiding Officer
has not met a limitation imposed by §28.4(c) of this Part or has
substantially failed to comply with the requirements of §28.4(b)
of this Part.  The Regional Administrator shall deny the request
if he determines, as applicable, that the challenged Presiding
Officer has at all times met the limitations imposed by §28.4(c)
of this Part or has substantially complied with the requirements
of §28.4(b) of this Part.

      (c) Sanctions.  The Regional Administrator may sanction the
requesting party (other than by fine or imprisonment) if he
denies a* request made pursuant to paragraph (a) of this section
and determines that the requesting party acted for purpose of
delay or otherwise did not make the request in good faith.

528.14 Unavailability of administrative appeal; limitation on
       requests for reconsideration.

      (a) Unavailability of administrative appeal.  No person may
administratively appeal any ruling, decision,  or other action of
the Presiding Officer or Regional Administrator,  whether
interlocutory or final, made or taken in connection with an
action under this Part.  No person may administratively appeal
the issuance of a subpoena issued pursuant to §28.11 of this
Part.

      (b) Limitation on requests for reconsideration.  No person
may request the Presiding Officer to reconsider the terms of a
recommended decision transmitted to the Regional Administrator
pursuant to §28.27(a) of this Part.  Except as otherwise provided
by §28.30 of this Part, no person may request reconsideration of
any ruling, decision, or other action of a Regional Administrator
or the Administrator, whether interlocutory or final, made or
taken under this Part.

§28.15 Prospective effect of this Part.

     This Part operates prospectively and shall govern any action
that is initiated by the .issuance of an administrative complaint
on or after the effective date of this Part.
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                              - 18  -
                     SUBPART B — PREHEARING


§28.16 Initiation of action.

     (a) Issuance of administrative complaint.  If the
complainant has information that:

          (1) [section 309(g) of tbe'Clean Water Act only]  Any
person has violated Section 301, 302, 306, 307, 308, 318, or 405
of the Clean Water Act (33 U.S.C. §§1311, 1312, 1316, 1317, 1318,
1328 or 1345), or has violated any permit condition or limitation
implementing any of such sections in a permit issued under
section 402 of the Clean Water Act, 33 U.S.C. §1342, by the
Regional Administrator or by a State, or in a permit issued under
section 404 of the Clean Water Act, 33 U.S.C. §1344, by a State,
the complainant may issue an administrative complaint.

          (2) [Section 31l(b)(6) of the Clean Water Act only]
Any owner, operator, or person in charge of any vessel, onshore
facility, or offshore facility (i) has discharged oil or a
hazardous substance in violation of Section 311(b)(3) of the
Clean Water Act, 33 U.S.C. §1321(b)(3), or (ii) fails or refuses
to comply with any regulation issued under Section 311(j) of the
Clean Water Act, 33 U.S.C. §132l(j), to which that owner,
operator, or person in charge is subject, the complainant may
issue an administrative complaint.

          (3) [Safe Drinking Water Act only]  Any person is
violating the requirement of an applicable underground injection
control program, the complainant may issue an administrative
complaint which alleges such violation and either proposes a
penalty or proposes a penalty and compliance, as authorized by
Section.1423(c)  of the SDWA, 42 U.S.C. §300h~2(c).  An
administrative complaint proposing compliance shall propose that
the respondent comply with the regulation, schedule, or other
requirement of the applicable underground injection control
program that is alleged to have been violated.  If the
complainant has information that a person has violated the
requirement of an applicable underground injection control
program, but such violation has ceased and its cause has been
remedied, the complainant may issue an administrative complaint
which proposes a penalty for that person's violation but does not
propose compliance.

          (4) [CERCLA only]  A person has failed or refused to
comply with the requirements of an administrative order or
agreement entered pursuant to Section 120 of CERCLA (42 U.S.C.
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                              - 19 -
§9620), a consent decree or  agreement entered pursuant  to  Section
122 of CERCLA  (42 U.S.C. §9622),  or has violated the requirements
of Section 103(a) or  (b) of  CERCLA, 42 U.S.C. §9603(a)  or
(b)(relating to notice to National Response Center); Section
103(d)(2) of CERCLA,  42 U.S.C.  §9603(d)(2)(relating to  the ,
destruction of records and related subjects); Section 108  of
CERCLA, 42 U.S.C. §9608  (relating to financial responsibility  and
related subjects); or an order  issued under Section 122(d)(3)  of
CERCLA, 42 U.S.C. §9622(d)(3)(relating to  settlement agreements
for action under Section 104[b] of CERCLA, 42 U.S.C. §9604[b]),
the complainant may issue an administrative complaint.

          (5)  (Section 325(b)(1)  of EPCRA  only]  Any person  has
violated the requirements of Section 304 of EPCRA, 42 U.S.C.
§11004, the complainant may  issue an administrative complaint.

          (6)  [Section 325(c)(l)  of EPCRA  only]  Any person  has
failed to provide access or  failed to prepare, have, make
available or submit information as required by Section  312 of
EPCRA, 42 U.S.C. §11022, the complainant may issue an
administrative complaint.

          (7)  [Section 325(c)(2)  of EPCRA  only/ except  as  it may
apply to reporting requirements under Section 313 of EPCRA]  'Any
person has violated any requirement of Section 311 or 323(b) of
EPCRA, 42 U.S.C. §11021 or §11043(b), or has failed to  furnish
information to the Administrator  as required by Section 322(a)(2)
of EPCRA, 42 U.S.C. §11042(a)(2), the complainant may issue an
administrative complaint.

          (8)  [Section 325(d)(l)  of EPCRA  only, except  as  it may
apply to trade secrecy claims under Section 313 of EPCRA]  Any
person has submitted  a trade secret claim  in violation  of the
requirements of Section 325(d)(1) of EPCRA, 42 U.S.C.
§11045(d)(l), the complainant may issue an administrative
complaint.
                           i
     (b)  Notice of respondent's opportunity for hearing.  At the
time of the issuance  of the  administrative complaint, the
complainant shall notify the respondent in writing of:

          (1) The respondent's  opportunity to respond to the
administrative complaint pursuant to §28.20 of this Part;

          (2) The consequences  of the respondent's failure to
respond to the administrative complaint by the applicable
deadline; and

          (3) The applicability of this Part to the
administrative action initiated against him.
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                              - 20 -
                         *

      (c) Service of Administrative complaint.  Any authorized
Agency employee shall serve the administrative complaint upon the
respondent personally or by sending it to the respondent by
certified mail, return receipt requested.  If the respondent is a
corporation, the complainant shall serve the President of the
corporation or the corporation's registered agent for service of
process.  If the respondent is an unincorporated business, a
partnership, or any other form of unincorporated association, the
complainant shall serve any person authorized by applicable law
to receive service of process.  If the respondent is a federal
agency, State or State agency, or a local unit of government, the
complainant shall serve its chief executive officer, or its
authorized agent for service of process.  Service on the
respondent is complete upon acceptance of personal service or
when the return receipt is signed by any employee or agent of the
respondent who in the ordinary course of business is authorized
to sign for certified mail on behalf of the respondent.  If
personal service is ineffective and if certified mail is refused
or unclaimed, the complainant shall serve the respondent by
another appropriate means.  In such case, service is complete
upon the execution of substituted service.

      (d) Notice of administrative complaint.  [Safe Drinking
Water Act and Section 309(g) of the Clean Water Act only]  No
later than the time of proof of service of the administrative
complaint, the complainant shall provide a copy of the public
notice of an action under this Part to the public by providing
notice by first class mail to any person who requests such notice
and by providing notice to potentially affected persons in a
manner reasonably calculated to provide such notice.

      (e) Opening of the administrative record.  Upon issuance of
the administrative complaint, the complainant or Agency counsel
shall open the administrative record by filing with the Hearing
Clerk appropriate documents, which shall include the
administrative complaint and attached certificate of service, and
which may include any evidence of violations, any information
relevant to the assessment of a civil penalty or the imposition
of a SDWA compliance remedy by the Regional Administrator, and
any anticipatory motions (including motions for summary
determination, accelerated decision, and remedy upon default)
with any supporting legal arguments and affidavits.

  '    (f) Anticipatory motions by complainant.  Notwithstanding
any other provision of this Part, at any time before the
respondent's deadline for the response pursuant to §28.20(a)  or
(b)  of this Part, whichever applies, the complainant may
anticipatorily move for a default remedy pursuant to §28.21(b)  of
this Part, or for summary determination as to liability or an
accelerated recommended decision pursuant to S28.25 of this Part.
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                              - 21 -


      (g) Notification of Agency decisionmaker.  Upon  issuance  of
the administrative  complaint  and  upon  receipt of proof of
service, the Hearing Clerk  immediately shall so notify the
appropriate Agency  decisionmaker.

      (h) Designation of  Presiding Officer.  The Regional
Administrator shall designate a Presiding Officer  for the
referenced Agency action no later than twenty days after the date
of service of the administrative  complaint.

§28.17 Availability of documents  filed with Hearing Clark.

     The Hearing Clerk shall  maintain  securely and shall make
available at reasonable  times for inspection and copying by any
person documents filed with the Hearing Clerk pursuant to this
Part, subject to any:

      (a) Provision  of law restricting  the public disclosure of
confidential business information;

      (b) Restriction necessary  to insure the physical security of
the filed documents; and

      (c) Agency rule governing  the costs of copying Agency
records.

$28.18 Withdrawal or amendment  of administrative complaint.

      (a) Withdrawal of administrative  complaint.   The complainant
may withdraw the administrative complaint without  prejudice:

          (1) Unilaterally  and  as of right at any  time before the
deadline prescribed by §28.20(a)  or (b) of this Part  (whichever
applies), or the date of the  respondent's filing of a response in
the action, whichever is sooner;  or

          (2) By stipulation with the  respondent or by permission
of the Presiding Officer at any time after the deadline
prescribed by §28.20(a) or  (b)  of this Part (whichever applies),
or the date of the  respondent's filing of a response in the
action, whichever is sooner.

      (b) Amendment  of administrative complaint.  The complainant
may amend the administrative  complaint:

          (1) Unilaterally  and  as of right at any  time,before ,theN
deadline prescribed by §28.20(a)  or (b) of this Part  (whichever
applies), or the date of the respondent's filing of a response in
the action, whichever is sooner; or
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                              - 22 -


           (2) By stipulation with the respondent or by permission
of the Presiding Officer at any time after the deadline
prescribed by §28.20(a) or (b) of this Part  (whichever applies),
or the date of the respondent's filing of a  response  in  the
action, whichever is sooner.

$28.19 consultation with state. [Section 309(g) of the clean
       Water Act only]

     The complainant shall, within thirty days of the
respondent's receipt of the administrative complaint, provide the
State agency with the most direct authority  over the  matters
which are the subject of the action under this Part ah
opportunity for consultation on the referenced Agency action.

$28.20 Responses to administrative complaint.

     (a) Respondent's deadline.  The respondent shall file with
the Hearing Clerk a response within thirty days after receipt of:

           (1) the administrative complaint;  or,

           (2) [Safe Drinking Water Act and Section 309(g) of the
Clean Water Act only] If applicable, the Regional Administrator's
disapproval of a proposed lodged consent order pursuant  to
§28.28(b)(2) of this Part.

     (b) Extension of respondent's deadline.  For the purpose of
engaging in informal settlement negotiations between  the
complainant and respondent the deadline for the respondent to
file a response pursuant to paragraph (a)(l) of this  section
shall be extended:

     (1) For any period stipulated by the complainant and
respondent (but in no event for longer than ninety days  following
such deadline), by filing such stipulation with the Hearing Clerk
within thirty days after respondent's receipt of the
administrative complaint; or

     (2) For thirty days following such deadline in the  case of
an offer of a penalty settlement by the respondent, by filing
notice of the existence of such an offer with the Hearing Clerk
within thirty days after the respondent's receipt of  the
administrative complaint.

     (c) Deadline for public comment and participation.  [Safe
Drinking Water Act and Section 309(g) of the Clean Water Act
only]  Any member of the public may, within thirty days  after
receipt of the notice provided pursuant to $28.16(d)  of  this
Part:
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                              - 23 -
           (1) Submit written  comments  on the administrative
complaint  to the Hearing Clerk  identified  in the notice; or

           (2) Become a participant  in  the  action by meeting the
requirements of §28.2(g) of this Part.

      (d) Admission.  Each uncontested  allegation in the
administrative complaint as to  liability is deemed admitted by
the respondent, whether by the  respondent's failure to make a
timely response pursuant to paragraph  (a)  or (b) of this section,
whichever  applies, or by the  respondent's  failure in a timely
response to deny such allegation included  in the administrative
complaint.

      (.e) Waiver.  If the respondent fails  to make a timely
response pursuant to paragraph  (a) or  (b)  of this section,
whichever  applies, the respondent shall have waived its
opportunity to appear in the  action for any purpose.

      (f) Amendment of response.  A respondent who has timely
responded  pursuant to paragraph (a) or  (b) of this section,
whichever  applies, may:

           (1) As of right amend its response within thirty days
following  the complainant's amendment of the administrative
complaint  pursuant to §28.18  of this Part; or

           (2)  Amend its, response no later than thirty days prior
to the date set for the first proceeding on the merits under this
Part upon  stipulation with the  complainant or by permission of
the Presiding Officer upon a  finding of good cause shown and upon
a finding  that such amendment would not prejudice the
complainant.

§28.21 Default proceedings.

      (a) Determination of liability.  If the respondent fails
timely to  respond pursuant to §28.20(a) or (b)  of this Part or
the Presiding Officer determines the respondent's conduct
warrants imposition of the sanction of default as to liability,
the Presiding Officer, on his own initiative, shall immediately
determine  whether the complainant has stated a cause of action.

           (1) If the Presiding  Officer determines that the
complainant has stated a cause  of action,  the Presiding Officer
shall direct the Hearing Clerk  to enter the respondent's default
as to liability in the administrative record.  Upon entry, the
allegations as to liability included in the administrative
complaint  shall be deemed recommended findings of fact and
conclusions of law.
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                              - 24 -
           (2) If the ..Presiding Officer determines that the
complainant has not stated a cause of action, the Presiding
Officer shall:

                (i) Allow the complainant to amend the
administrative complaint pursuant to §28.18(b)(2) of this Part;
or

                (ii) Set forth that determination in a recommended
decision to the Regional Administrator pursuant to §28.27(a)(3)
of this Part and shall recommend that the Regional Administrator
withdraw the administrative complaint.

      (b)' Determination of remedy.  In any action under this Part
in which the Hearing Clerk has entered a default as to liability,
the complainant shall submit within thirty days of receipt of the
entry of default a written argument (with any supporting
documentation) regarding the assessment of an appropriate civil
penalty and (in the case of the Safe Drinking Water Act)
regarding the requirement for compliance, subject to the
following limitations:

           (I) [CERCLA, Section 309(g)  of the Clean Water Act and
Section 325(b) of EPCRA only]  The argument shall be limited to
the nature, circumstances, extent and gravity of the violation or
violations and, with respect to the respondent, ability to pay,
any prior history of such violations,  the degree of culpability,
the economic benefit or savings (if any) respondent enjoyed
resulting from the violation, and such other matters as justice
may require.

           (2) [Section 3ll(b)(6) of the Clean Hater Act only]
The argument shall be limited to the seriousness of the violation
or violations, the economic benefit to the violator, if any,
resulting from the violation, the degree of culpability involved,
any other penalty for the same incident, any history of prior
violations, the nature, extent, and degree of success of any
efforts of the violator to minimize or mitigate the effects of
the discharge, the economic impact of the penalty on the
violator,  and any other matters as justice may require.

           (3) [Safe Drinking Water Act only]  The argument as to
penalty shall be limited to the seriousness of the respondent's
violation or violations, the economic benefit (if any) respondent
enjoyed resulting from the violation,  and any history of such
violations, any good faith efforts by the respondent to comply
with the applicable requirements, the economic impact of the
penalty on the respondent, and such other matters as justice may
require.  The argument as to compliance shall be limited to the
reasonableness of the time required for compliance, if any, and
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                              - 25 -


the necessity for any  interim 'requirements,  such  as  reporting
requirements, that may be  included  in any  compliance order.

§28.22 Consent orders.

      (a) Agreement of  parties.

           (1) Except as specifically provided by  paragraph  (b) of
this section, at any time  before  final Agency action,  the
complainant and a respondent may  conclude  an action,  in whole or
in part, by agreeing upon  a civil penalty  and  (in the case of the
Safe Drinking Water Act) a'compliance remedy which is reasonably
related to the respondent's violation of law.  The parties shall
memorialize such an agreement in  the form  of an Agency consent
order and serve it pursuant to §28.9(a) of this Part.  Upon
service, a consent order signed by  the complainant and a
respondent has the force and effect of a unilateral  order which
has been signed by the Regional Administrator under  $28.28 of
this Part, except that a signatory  respondent may not appeal  such
a consent order to the appropriate  federal court.

           (2) If the filing of the  consent order  with the Hearing*
Clerk pursuant to paragraph (1) of  this section does  not wholly
conclude the action:

               (i) The parties shall inform  the Presiding Officer
of the issues that remain  unresolved; and

               (ii) The Presiding Officer  shall promptly inform
the parties or the remaining parties of the  schedule  of the
remaining proceedings.

      (b) Submission of proposed consent order.  [Safe Drinking
Water Act and Section  309(g) of the Clean  Water Act only]  In any
action in which a commenter is participating or may participate
pursuant to §§28.2(g)  and  28.20(c)(2)  of this Part, and in which
the parties have reached an agreement on the terms of  a consent
order pursuant to paragraph (a) of  this section:

           (1) The parties  shall:

               (i) Sign a  proposed  consent order and  lodge it
with the Hearing Clerk no  sooner  than the  deadline established
for public comment and participation pursuant to  §28.20(c) of
this Part; and

               (ii) Upon the request of the  Regional
Administrator, lodge a written explanation of the  legality of the
proposed consent order with the Hearing Clerk.
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                              - 26 -


          (2) If the parties have complied with the requirements
of paragraph  (b)(1)(i) of this section, the action shall be
suspended until the Regional Administrator approves or
disapproves the proposed consent order pursuant to §28.28(b) of
this Part.

          (3) The complainant shall serve each non-signatory
participant in the action with a copy of the proposed consent
order at the time the parties lodge the proposed order pursuant
to paragraph  (b)(1)(i) of this section and notify each non-
signatory participant of the suspension of the action occurring
pursuant to paragraph (2) of this section and of the provisions
of S§28.2(p), 28.4(c) and 28.12 of this Part which prohibit
communication with the Presiding Officer or the Regional
Administrator regarding the substance of the proposed order.

          (4) Upon receipt of a proposed consent order lodged
pursuant to paragraph (b)(1)(i) of this section, the Hearing
Clerk shall notify the Presiding Officer of its receipt, transmit
the proposed order to the Regional Administrator, and make all
documents filed with the Hearing Clerk by the participants
available to the Regional Administrator.  Upon receipt of a
written explanation lodged .pursuant to paragraph (b)(1)(ii) of
this section, the Hearing Clerk shall transmit the explanation to
the Regional Administrator.

          (5) Upon approval by the Regional Administrator of a
proposed consent order pursuant to §28.28(b) of this Part, all
documents that have been filed with the Hearing Clerk by the
participants before the time the proposed consent order is lodged
and any written explanation of the legality of the proposed order
submitted to the Regional Administrator by the parties pursuant
to paragraph  (b)(1)(ii)  of this section are deemed to constitute
the administrative record underlying the approved consent order.

          (6) Upon disapproval by the Regional Administrator of a
proposed consent order pursuant to §28.28(b) of this Part, the
Presiding Officer shall promptly reschedule any previously
suspended proceedings, and the action shall resume according to
the provisions of this Part.

$28.23 Frentering conference.

     (a) Time and form of conference. In any action in which the
respondent timely responds pursuant to §28.20(a) or (b) of this
Part, the Presiding Officer shall hold a prehearing conference
among all the parties to the action not later than thirty days
after such response.  The Presiding Officer may conduct the
conference in person or by telephone.
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                              - 27 -
      (b) Purposes of  conference.  At the prehearing  conference
the Presiding Officer:

           (/I) Shall establish a time and place  for further
proceedings  in the action pursuant to the requirements of
paragraph  (c) of this section;

           (2) Shall,  upon request of any party, schedule an
exchange of  information as appropriate, and subject  to the
limitations  of §28.24 of this Part, where appropriate, on his own
impose additional limitations on the scope of an exchange of
information,between the parties;

           (3) May attempt to simplify issues and help the parties
to stipulate to facts not in dispute;

           (4) May explore the necessity or desirability of
amendments to the pleadings; and

           (5) May discuss any other appropriate subject.

      (c) Time and place of further proceedings.

           (1)  The Presiding Officer shall schedule  a proceeding
on the merits of the  action and, as may be required, any other
proceeding.  Except as otherwise provided by paragraph (c)(2) of
this  section, each proceeding shall be conducted at  an
appropriate  Agency office.  The Presiding Officer shall schedule
the proceeding on the merits to take place no sooner than thirty
days  following the date of the prehearing conference conducted
pursuant to  this section, or no sooner than seven days following
the completion of any information exchange scheduled pursuant to
§28.24(c) of this Part (exclusive of any supplemental exchange
pursuant to  §28.24[c][1]), whichever is later.

           (2)  Any party, on the basis of necessity, may request
in writing within ten days of receipt of the notice  of such
proceeding that the Presiding Officer schedule such  a proceeding
at a time or location other than that initially specified by the
Presiding Officer.  The Presiding Officer shall promptly grant or
deny such a  request.

      (d) Prehearing order.  The Presiding Officer shall issue to
the participants a prehearing order no later than twenty days
following the conference which shall memorialize the rulings of
the Presiding Officer made at the prehearing conference.  The
Presiding Officer may, to aid the efficient administration of
justice, modify the prehearing order as necessary, except as
limited by §28.24(c) of this Part.

§28.24 Information exchange.
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                              - 29  -
supplement information requested pursuant to paragraph  (b)(1) of
this section if such supplementary information becomes known to
the requested party after the applicable information response
deadline established by the Presiding Officer.  Except for good
cause shown, the supplementing party shall complete service to
the requestor of such supplemental information by no later than
seven days prior to the date set for the noticed proceeding.

          (2) [Clean water Act and safe Drinking Water Act only]
The Presiding Officer may, for good cause shown, extend the
deadline for the parties to provide information as required by
paragraph (b) of this section for a period not to exceed thirty
days.  The Presiding Officer may grant, in sequence, subsequent
extensions of up to thirty days each upon an individual showing
of good cause for each extension.

     (d) Service.  Each party simultaneously shall serve each set
of information requests or responses to an information request
personally or by first class or'certified mail (or any other
manner of messengered service that is no less speedy and
reliable), with an attached certificate of service, upon the
other party and the Presiding Officer.  If, pursuant to the
requirement of paragraph (a) of this section, the parties have
stipulated to any other exchange of information, the parties
shall promptly provide such information to the Presiding Officer.

     (e) Sanctions.

          (i) Any party that fails timely:

               (i) To provide the name and all supporting
information required pursuant to paragraph (b)(1)(i) of this
section regarding any witness may not present that witness at a
proceeding under §28.26 of this Part;

               (ii) To produce a document required pursuant to
paragraph (b)(1)(ii) of this section may not submit, or have
submitted, such a document for the administrative record at a
proceeding under §28.25 or §28.26 of this Part, or otherwise;

               (iii) To provide to complainant any information
required pursuant to paragraph  (b)(2)(i) of this section
concerning an inability to pay a civil penalty may not submit, or
have submitted, any information for the administrative record
concerning its inability to pay the civil penalty requested by
complainant; and

               (iv) To provide to complainant any information
required pursuant to paragraph  (b)(2)(ii) of this section
concerning net profits, delayed or avoided costs, or any other
form of economic benefit resulting from any activity or failure
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                              - 28 -


      (a) Authority.  Except by stipulation of the parties which
is filed with the Hearing Clerk,  by the issuance of a subpoena
pursuant to §28.11 of this Part,  and by authorization of law
outside the scope of this Part, this section provides exclusive
authority for the provision of information by parties and
provides such authority only in an action in which the respondent
has timely responded to an administrative complaint pursuant to
§28.20(a) or (b) of this Part.

      (b) Scope of exchange.  Subject to paragraph (a) of this
section, and subject to any further limitation imposed by the
Presiding Officer in a prehearing order issued pursuant to
§28.23(b)(2) of this Part:

          (1) Each party, upon request by an opposing party,
shall provide, in writing, to the requestor only:

               (i) The name of each witness it intends to present
at any proceeding under §28.26 of this Part, as well as a brief
description of the witness' connection to the action, the
witness1 qualifications (in the case of an expert witness), and
the subject matter of the intended testimony; and

               (ii) Each document (other than a document to be
used solely for purposes of impeachment) it intends to introduce
at any proceeding under §28.25 or §28.26 of this Part and which
has not been filed with the Hearing Clerk pursuant to §28.16(e)
of this Part; and

          (2) Respondent, upon request by complainant, shall
provide to the complainant in writing all information requested
by the complainant and known to the respondent relating to:

               (i) The respondent's inability to pay a civil
penalty; and

               (ii) The respondent's net profits, delayed or
avoided costs, or any other form  of economic benefit resulting
from any activity or failure to act.by the respondent which is
alleged in the administrative complaint to be a violation of
applicable law.

     (c) riffling- of exchange.

          (1) The parties shall conduct the exchange of  ,
information according to the schedule established by the
Presiding Officer pursuant to §28.23(b) and (d) of this Part, but
except as provided for by paragraph (c)(2) of this section and a
continuing right to supplement described below, under no
circumstance shall such exchange  conclude later than sixty days
after the date of the prehearing  conference.  The parties may
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                              - 30 -


to act by the respondent which is alleged in the administrative
complaint to be a violation of applicable law, may not submit, or
have submitted, any information for the administrative record on
such subject.

          (2) Except as specifically provided'in paragraph  (e)(1)
of this section, the Presiding Officer has discretion to  impose
on any party that fails to comply with the requirements of  this
section any sanction that is just and proper.

$28.25 summary determination and accelerated recommended  decision

     (a) Initiation.  In any action in which a respondent has
timely responded to an administrative complaint pursuant  to
§28.20(a) or (b) of this Part:

          (1)  Any party may request, by legal argument with or
without supporting affidavits, that the Presiding Officer
summarily determine any allegation as to liability being
adjudicated on the basis that there is no genuine issue of
material fact for determination presented by the administrative
record and any exchange of information..  Any party may also
request, by legal argument with or without supporting affidavits,
that the Presiding Officer accelerate his recommended decision on
the basis that there .is no compelling need for further fact-
finding concerning remedy.  The requesting party shall serve the
request at least thirty days before any date set for a liability
hearing, except that upon leave granted by the Presiding  Officer
for good cause shown, the requesting party may file the request
at any time before the close of the liability hearing.

          (2)  The Presiding Officer, at any time following the
initial deadline for the exchange of information under §§28.23
and 28.24 of this Part and before the commencement of a liability
hearing, and upon examination of the entire administrative  record
and any exchange of information by the parties, may on his  own
initiative summarily determine that a party is entitled to
judgment as to liability as a matter of law.

          (3) Upon summarily determining liability pursuant to
this section, or upon stipulation by the parties as to liability,
the Presiding Officer may on his own initiative and without
further fact-finding accelerate the recommended decision.   In
reaching the recommended decision, the Presiding Officer  shall
consider the applicable factors set forth in §28.21(b) of this
Part and (in the case of a compliance remedy under the Safe
Drinking Water Act)  shall consider the reasonableness of the
remedy.

     (b) Response.  Any party against whom a request for  summary
determination or accelerated recommended decision has been  made
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                              - .32 -


           (2) The Presiding Officer shall on his own initiative
summarily determine that a party  is entitled to judgment as to
liability as a matter of law  if he finds, based on an examination
of the administrative record  and  any information exchanged by the
parties, that the participants present ho genuine issue of
material fact as to liability and a party is entitled to judgment
as to liability as a matter of law.

      (e) Determination of liability.  If the Presiding Officer
determines that a party is entitled to judgment as to liability
as a matter of law by means of summary determination, the
Presiding Officer shall prepare any written recommended finding
of fact and any conclusion of law corresponding to such
determination.  If the Presiding  Officer does not accelerate a
recommended decision, the Presiding Officer shall promptly serve
each participant with a copy  of such recommended finding and
conclusion of law.  If the Presiding Officer accelerates the
recommended decision, upon completion of the recommended decision
the Presiding Officer shall follow the procedures prescribed by
§28.27 of this Part.

      (f) Determination of genuine issue of fact.  The Presiding
Officer shall deny a request  for  summary determination of
liability if he finds the administrative record and any exchange
of information by the parties present a genuine issue of material
fact.  If the Presiding Officer denies a request for summary
determination, or denies such a request in part, the Presiding
Officer shall promptly issue  to each participant a written ruling
as to the existence of a genuine  issue of material fact as to
liability and the reasons for the ruling, and the action shall
continue on the factual allegations over which the participants
have demonstrated the existence of a genuine issue.

      (g) Supplementation of administrative record.  In any action
in which the Presiding Officer has on his own initiative
determined that a party is entitled to judgment as to liability
as a matter of law pursuant to paragraph (a)(2) of this section,
and has based that determination  in any part on any document
provided pursuant to §28.24 of this Part that is not otherwise
within the administrative record, the Presiding Officer shall
incorporate such document into the administrative record pursuant
to §28.2(b)(15) of this Part  by filing it with the Hearing Clerk.
The Presiding Officer shall not incorporate in the administrative
record any document barred from the administrative record by
operation of §28.4(c)(5) or (6) of this Part.
                       SUBPART C — HEARING
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                              - 31 -


shall serve a response to the request or a counter-request no
later than twenty days following receipt of the opposing party's
request, or thirty days following the service of the
administrative complaint, whichever is later, unless the
Presiding Officer establishes a different schedule.  Any party
against whom a counter-request under this subsection has been
made may serve a response to the counter-request no later than
twenty days following receipt of the counter-request, unless the
Presiding Officer establishes a different schedule.  A party
opposing a request or counter-request for summary determination
shall show, by affidavit or by other documentation, that the
administrative record and any exchange of information present a
genuine issue of material fact as to liability.  A party opposing
a request for an accelerated recommended decision shall show, by
affidavit or by other documentation, that there is a compelling
need for the introduction of testimony material to the assessment
of a civil penalty or (in the case of the Safe Drinking Water
Act) the imposition of a compliance remedy.                 .

     (c) Form and record of argument.  After receipt of all
information associated with a request or counter-request under
this section from all parties, or pursuant to paragraph (a)(2) or"
(a)(3) of this section, the Presiding Officer may require oral
argument of each participant in order to aid the administration
of justice.  The Presiding Officer shall not allow argument
regarding matters barred from the administrative record by
operation of §28.4(c)(5) or (6) of this Part.  If the Presiding
Officer allows rebuttal argument, such rebuttal shall be allowed
only to the parties.  The Presiding Officer shall create by
written, electronic, or other permanent and reliable means a
verbatim record of any oral argument presented pursuant to this
section and shall file that record with the Hearing Clerk.

     (d) Basis for ruling.

          (1) The Presiding Officer shall rule on a request for
summary determination or an accelerated recommended decision
under paragraph (a)(1) of this section promptly after he finds,
based on the administrative record, any exchange of information,
and any arguments of the participants, whether the participants
present a genuine issue of material fact as to liability and
whether a party is entitled to judgment as to liability as a
matter of law.  The Presiding Officer shall rule on a request for
an accelerated recommended decision based.on whether there is a
compelling need for further fact-finding.  If the Presiding
Officer denies a request for an accelerated decision, the
Presiding Officer shall promptly schedule an appropriate
proceeding pursuant to §28.26(h) of this Part to develop the
administrative record regarding an appropriate remedy.
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                              - 33 -
§28.26 Liability hearing.

      (a) Scope of hearing.   Except  as  otherwise  specifically set
forth in paragraphs  (h),  (i)  and  (k) of  this  section, the
Presiding Officer shall conduct any hearing pursuant to this
section -necessary to determine the  truthfulness  of any unresolved
allegation of fact  (or conclusion of law based on an unresolved
question of fact) as to liability which  was set  forth in the
administrative complaint.

      (b) Conduct of hearing.

          (1) The Presiding  Officer shall conduct a fair and
impartial proceeding in which each  participant has a reasonable
opportunity to be heard and  to present evidence.
witness;
           (2) The Presiding Officer may:

                (i) Administer the oath or affirmation of a
                (ii) Require the authentication of any written
exhibit or statement;

                (iii) Examine witnesses to clarify the
administrative record; and

                (iv) Limit the number of witnesses and the scope
and extent of any direct examination or cross-examination under
this section as necessary to protect the interests of justice and
conduct a reasonably expeditious hearing.

     (c) Testimony.  Each witness shall testify in the form
determined by the Presiding Officer to be most efficient in
resolving an issue.  Forms of testimony include oral testimony
provided in person or by other means', and written or otherwise
recorded testimony.  Testimony shall be limited to facts
regarding liability and shall not include issues of law.

     (d) Admission of evidence.  The Presiding Officer shall
decide which documents and testimony shall be admitted into
evidence.  The Presiding Officer shall admit all evidence which
is relevant, material, or of significant probative value.  The
Presiding Officer shall not admit evidence barred from the
administrative record by operation of §28.4(c)(5) or (6) of this
Part.

     (e) Official notice.  Except as prohibited by S28.4(c)(5) or
(6) of this Part, the Presiding Officer may take official notice
of matters judicially noticed in the federal courts, of other
facts within the specialized knowledge and experience of the
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                              - 34  -
Agency, and of matters that are not reasonably in dispute and are
commonly known in the community or are ascertainable from readily
available sources of known accuracy.  Prior to taking official
notice of a matter/ the Presiding Officer shall give the parties
an opportunity to show cause why such notice should not be taken.

     (f) Cross-examination.  Any opposing party has a right of
cross-examination after the introduction of a witness* direct
testimony.  A party shall not cross-examine regarding a matter
that is outside the scope of the direct examination.  [Safe
Drinking Water Act and Section 309(g) of the Clean Water Act
only]  The Presiding Officer shall not allow a commenter an
opportunity to cross-examine a party's witness.  Agency counsel
has the right to the first cross-examination of a commenter's
witness.

     (g) Elements and order of presentation.  The elements of a
liability hearing are set forth in paragraphs (g)(1) through (6)
of this section.  Unless otherwise directed by the Presiding
Officer, the order of the hearing shall be as follows:

          (1) Agency counsel may summarize the factual bases of  *
the administrative complaint and intended witness testimony.

          (2) The respondent may summarize the factual bases of
the response and intended witness testimony.

          (3) Agency counsel may offer any inculpatory
testimonial or other evidence within the scope of the hearing.

          (4) Respondent may offer any exculpatory testimonial or
other evidence within the scope of the hearing.

          (5) [Safe Drinking Water Act and Section 309(g) of the
Clean water Act only] Any commenter may introduce testimonial or
other evidence within the scope of the hearing under this section
if such evidence concerns an allegation identified by the
commenter pursuant to §§28.2(g) and 28.20(c) of this Part,
subject to the following limitations:

               (i) The commenter may offer into evidence a
witness1 testimony only if the commenter had notified all other
participants at least twenty days prior to the commencement of
the liability hearing of the name of the witness, a brief
description of the witness1 connection to the action, his
qualifications (in the case of an expert witness),  and the
subject matter of the witness' intended testimony.

               (ii) The commenter may offer into evidence a
document only if the commenter had provided a copy of such
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                              - 36 -
S28.27 Recommended decision.

      (a)  Preparation and transmission.  Within a  reasonable  time
following any remedy proceeding pursuant to  §28.21(b),  $28.25 Or
§28.26(h) of this Part, or upon a determination by the  Presiding
Officer'pursuant to §28.21(a)(2)(ii) or §28.25 of  this  Part that
the complainant has failed to carry its burden of  going forward
pursuant to the provisions of §28.10(a) of this Part, or upon a
determination by the Presiding Officer that  the complainant has
failed to carry any burden of proof pursuant to §§28.lO(d) and
28.26 of this Part, the Presiding Officer shall:

          (1) Certify the administrative record as complete to
date and in compliance with all requirements of this Part;

          (2) Make the administrative record available  to the
Regional Administrator; and

          (3) Prepare and transmit a recommended decision to  the
Regional Administrator.

      (b) Publication.  The Presiding Officer shall file a copy of
the recommended decision with the Hearing Cleric at the  time of
its transmittal to the Regional Administrator and  the Hearing
Clerk immediately shall serve each participant with a copy of the
recommended decision.

§28.28 Decision of the Regional Administrator.

      (a) Contested or default order.  In any action in  which  the
Regional Administrator receives a recommended decision  from the
Presiding Officer, the Regional Administrator shall:

          (1) Base his decision on the administrative record  and
the applicable law;

          (2) Within a reasonable time following receipt of the
Presiding Officer's recommended decision:

               (i) Withdraw the administrative complaint on the
basis that the administrative complaint does not state  a cause of
action or that the allegations of fact and conclusions  of law in
the administrative complaint are not supported by  the
administrative record; or

               (ii) Issue an order on the basis that the
administrative record and applicable law support such an order;
and

               (iii)  If the Regional Administrator rejects the
recommendation of the Presiding Officer in whole or in  part,
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                              - 37 -
provide a written explanation for that rejection that states each
point of disagreement with the recommendation of the Presiding
Officer.

          (3) Upon issuance of an order pursuant to applicable
law, provide a written decision that is supported by clear
reasons and the administrative record and includes a statement of
the right of judicial review and of the procedures and deadlines
for obtaining judicial review.  The order shall be comprised of
the Regional Administrator's findings of fact which establish the
Agency's subject matter jurisdiction and the respondent's
violation of any applicable law as alleged in the administrative
complaint/ conclusions of law, assessment of an appropriate
penalty after taking into account all applicable statutory
penalty factors, and, if applicable (in the case of the Safe
Drinking Water Act), requirement of compliance with applicable
requirements. [Section 309(g) of the Clean Water Act only]  In
any action in which a comroenter is participating pursuant to
SS28.2(g) and 28.20(c)(2) of this Part, the order shall state
that the commenter has the right to petition to set aside the
order pursuant to §28.30 of this Part.

     (b) Consent order. [Safe Drinking Water Act and Section
309(g) of the Clean Water Act only]

          (1) In any action in which the Regional Administrator
receives a proposed consent order from the Hearing Clerk pursuant
to §28.22(b)(4) of this Part, the Regional Administrator shall
determine whether the proposed consent order meets the
requirements of this Part and applicable law by reviewing the
proposed order, the administrative record, and any written
explanation of the legality of the order submitted upon his
request by the signatory parties.

          (2) Within a reasonable time following its receipt,
without amendment and by his signature the Regional Administrator
shall either approve and issue or disapprove the proposed consent
order.  If the Regional Administrator disapproves the proposed
consent order, he shall provide the signatory parties with a
written explanation for the disapproval based on the factors set
forth in paragraph (b)(1) of this section.

     (c) Publication.  The Hearing Clerk shall, within seven days
of the signing of an order by the Regional Administrator under
this section, send a copy of the order:

          (1) To the Presiding Officer, each participant, and any
defaulted respondent; and

          (2) To the Administrator, if the order was issued
pursuant to paragraph (a) -of this section.
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                              - 35 -
document to all other participants at least twenty days prior to
the commencement of the liability hearing.

           (6) At the discretion of the Presiding Officer, the
parties may present rebuttal testimony within the scope of
evidence introduced at the hearing, except (in the case of the
Safe Drinking Water Act and Section 309[g] of the Clean Water
Act) the parties shall have the right to present rebuttal
testimony  in response to any testimony presented by a commenter's
witness.               -

     (h) Remedy issues.  The Presiding Officer has the
discretion, based on a compelling need for additional fact-
finding on issues material to remedy, to allow the participants
to introduce testimony on such issues.  The Presiding Officer
shall not  allow testimony if the issues can be appropriately
explored by use of legal argument and affidavits, or by the
submission by the participants of written recommended findings of
fact and conclusions of law pursuant to paragraph.(k) of this
section.   If the Presiding Officer allows such testimony, he
shall conduct such proceeding in the most timely and efficient
manner possible.  In any such proceeding, the Presiding Officer
shall consider any applicable Agency policy (except any Agency
policy, or portion thereof, that applies to settlement of a
penalty claim) concerning the assessment of an administrative
penalty.

     (i) Closing argument.  After all evidence has been presented
at the hearing, the Presiding Officer may allow the participants
to present an oral closing statement regarding issues of
liability  and of remedy,  and may allow the participants to submit
any documentation regarding remedy.

     (j) Hearing record.   The Presiding Officer shall create by
written, electronic, or other permanent and reliable means a
verbatim record of the hearing and shall file that record with
the Hearing Clerk.

     (k) Findings and conclusions.  The Presiding Officer may
request the participants to submit, within a reasonable time
after the  conclusion of the hearing, proposed recommended
findings of fact and conclusions of law,  as well as any
documentation regarding remedy.  The Presiding Officer shall,
after the  conclusion of a hearing and the submission of any
documents  requested pursuant to this section,  follow the
procedures prescribed by §28.27 of this Part.
                    SUBPART D — POST-HEARING
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                              - 38 -


      (d) Completion of administrative record.  The Regional
Administrator shall file with  the Hearing  Clerk  the record of any
sanction he imposes under §28.12(c)(2) or  §28.13(c) of this Part,
any decision he makes regarding a request  for  an alternate
Presiding Officer under §28.i3(b) of this  Part,  any written -
explanation submitted by the parties pursuant  to §28.22(b)(1)(ii)
of this Part in support of a consent order that  has been  approved
by the Regional Administrator, any  action  of the Administrator
pursuant to §28.29 of this Part, any written explanation  of a
rejection of the recommendation of  the Presiding Officer  pursuant
to paragraph (a)(2)(iii) of this section,  any  order the Regional
Administrator issues pursuant  to this section, any other
significant action he takes in an action under this Part  other
than a written explanation of  his disapproval  of a proposed
consent order, and (in the case of  an action pursuant to  Section
309[g] of the Clean Water Act) any  evidence submitted by  a
petitioner pursuant to §28.30  of this Part and any decision to
grant a petition pursuant to §28.30(b) of  this Part.

      (e) Pate of issuance.  For- purposes of appeal, an order of
the Regional Administrator pursuant to this Part shall be deemed
to be issued five days following the date  of mailing of the
Regional Administrator's order to respondent.

      (f) Effective date.  Any  order issued pursuant to this Part
becomes effective thirty days  following its date of issuance
unless before that date:   .

          (1) [Section 309(g)  of the Clean Water Act only]  An
appeal is taken pursuant to Section 309(g)(8)  of the Clean Water
Act, 33 U.S.C. §l319(g)(8), or a commenter files a timely
petition pursuant to §28.30 of this Part.  If  the Regional
Administrator denies such a petition, the  order  becomes effective
thirty days after such denial;

          (2) [Section 311(b)(6) of the Clean  Water Act only] An
appeal is taken pursuant to Section 311(b)(6)(G)  of the Clean
Water Act, 33 U.S.C. §1321(b)(6)(G);

          (3) [Safe Drinking Water  Act only]   An appeal is taken
pursuant to Section 1423(c)(6) of the Safe Drinking Water Act, 42
U.S.C. §300h-2(c)(6);

          (4) [CERCLA only]  An appeal is  taken  pursuant  to
Section 109(a)(4) of CERCLA, 42 U.S.C. §9609(a)(4);

          (5) [EPCRA only]  An appeal is taken pursuant to
Section 325(f)(l) of EPCRA, 42 U.S.C. §11045(f)(1); or

          '(6) The Administrator suspends the implementation of
the order pursuant to §28.29 of this Part.
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                              - 39 -
      (g) Final Agency action.  The issuance of an order by  the
Regional Administrator pursuant to this section constitutes final
Agency action on  its effective date for purposes of the
Administrative Procedure Act, 5 U.S.C. §551.

§28.29 Sua sponte review.

     The Administrator may, on his own initiative, within thirty
days of the date  of issuance by the Regional Administrator  of a
contested or default order under §28.28(a) of this Part, suspend
implementation .of such order for the purpose of reviewing its
conclusions of law or its sufficiency pursuant to §28.28(a)(3) of
this Part.  The Administrator, after such review, may amend its
conclusions of law, withdraw the order, remand the order for
appropriate action by the Regional Administrator, or may allow
the order to issue unchanged.  In any action in which the
Administrator acts pursuant to this section, the provisions of
§28.28 of this Part shall apply, except that:

      (a)  The Regional Administrator who issued an order shall be
deemed the recommending Presiding Officer for purposes of §28.28;
                                             <4 '
      (b)  Upon suspension of the order, the Administrator who
suspended an order shall be deemed the Regional Administrator for
purposes of §28.28;

      (c)  The Regional Administrator's order, except for its
findings of fact, shall be deemed a recommended decision; the
Regional Administrator's findings of fact are findings of fact
for purposes of this Part and not subject to review by the
Administrator;

      (d)  If the  Administrator does not amend the Regional
Administrator's conclusions of law nor determine that the order
is insufficient pursuant to §28.28(a)(3)  of this Part, the
Regional Administrator's determination of remedy is not subject
to review; if the Administrator does amend the Regional
Administrator's conclusions of law or determines such
insufficiency, the. Regional Administrator's determination of
remedy shall be remanded by the Administrator to the Regional
Administrator for appropriate action, except that if the
Administrator determines the respondent is not liable at all
under applicable  law, the Administrator shall withdraw the
administrative complaint and the order of the Regional
Administrator without remand;

     (e)  If the  Administrator allows the order to issue
unchanged, the requirements of §28.28(a)(3) of this Part shall
not apply;
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                              - 40 -
     (f)  If the Administrator withdraws, amends or remands the
order, the requirement of §28.28 (a) (3) of this Part to maJce
findings of fact and to order a remedy shall not apply; and

     (g) * The Administrator's decision to suspend  implementation
of an order shall not be deemed final Agency action for the
purposes of §28.28(g) of this Part  or the Administrative
Procedure Act, 5 U.S.C. §551.

§28.30 Petition to set aside an order. [Section 309(g) of the
       Clean Water Act only]

     (a) Initiation.  In any action under Section  309(g) of the
Clean Water Act, 33 U.S.C. §1319(g), in which the  Regional
Administrator has issued an order pursuant to §28.28 of this
Part, any cpmmenter participating in that action may, no later
than thirty' days after the date of  issuance of the order under
§28.28(e) of this Part, petition the Regional Administrator to
set aside the order and to provide  a hearing on liability or a
proceeding on the penalty if the commenter at the  time of
petitioning files with the Hearing  Clerk material  evidence not
considered in the issuance of the order and:

          (1)  The Presiding Officer had failed to afford the
commenter an opportunity to present information in a proceeding
conducted under §28.25 or §28.26 of this Part in the referenced
Agency action, or in an action concluded by consent order under
§§28.22(b) and 28.28(b) of this Part; or

          (2)  The Regional Administrator issued the order
pursuant to §§28.21 and 28.28(a) of this Part after the
respondent had timely failed to respond to the administrative
complaint pursuant to the requirements of §28.20 of this Part or
was defaulted by sanction, without  the commenter having had an
opportunity to present information  in a proceeding conducted
under §28.25 or §28.26 of this Part in the referenced Agency
action.

     (b) Granting of petition.  The Regional Administrator shall
grant the petition and set aside the order if he finds that the
petitioner meets the requirements of paragraph (a) of this
section.  If the Regional Administrator grants the petition, he
shall instruct the Presiding Officer to conduct an appropriate
proceeding pursuant to §28.21(b), §28.25 or §28.26 of this Part.

     (c) Denial of petition.  The Regional Administrator shall
deny the petition if he determines  that the petitioner has failed
to meet the requirements of paragraph (a) of this  section.  If
the Regional Administrator denies the petition, he shall notify
the complainant, the petitioner and the respondent by certified
mail, .return'receipt requested, and shall publish  notice of such
-------
                              - 41 -
denial in the Federal Register, together with his reasons for the
denial.

§28.31 Payment of assessed penalty.

     Except as may be otherwise provided by applicable law and
the provisions of any consent order, the respondent shall pay
within thirty days of the effective date of the order any civil
penalty assessed pursuant to this Part by forwarding to the
address provided by the complainant a cashier's or certified
check, payable to:

     (a) [Safe Drinking Water Act, EPCRA and Section 309(g) of
the Clean Water Act only]  "Treasurer, The United States of
America."

     (b) [Section 31l(b)(6) of the Clean Water Act only] "Oil
Spill Liability Trust Fund."

     (c) [CERCLA only] "EPA Hazardous Substance Superfund."

The respondent shall note on each check in payment the case title'
and docket number of the administrative action.  The respondent
shall simultaneously send notice of payment to the Hearing Clerk.
The Presiding Officer may waive the requirement of payment by
cashier's or certified check for good cause shown.  In no case
shall the Presiding Officer waive the requirement of payment by
certified or cashier's check if such a waiver may endanger the
Agency's receipt of funds.
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                                                             m.B.i4
"Guidance on Division of CWA Administrative Penalties with State or Local
Governments", dated September 27,1991.
-------
              UNITED STATES ENVIRONMENTAL PROTECTION AGEN.'
                         WASHINGTON, D.C. 20460
                                  F 2 7 199!
V — i,
 MEMORANDUM

 SUBJECT:  Guidance on Division of CWA Administrative
           Penalties with State or Local Governments .
                               .    ii\f\>\   i ,'J M  L
 FROM:      Michael 3.  Cook, Director!/ -,.' \ • fv'l\ljL,v\   /•///<
           Office of Wastewater Enfbrdeinent and Compliance
           Enforce-ent Counsel/for Water
           Office of Enforcement

 TO:        Regional Counsels
           Regional Water Management Division Directors


      The  purpose of this memorandum is to provide guidance on the
 issue of  whether the 1937 Clean Water Act (CWA) authorizes EPA to
 divide administrative penalties with State and local governments.
 This  issue has  been raised because at least one EPA Region has
 issued a  consent order which provides that a State receive a
 portion of the  assessed penalty.   The Agency has issued guidance
 on the subject  of dividing judicial penalties with States,
 ("Division of Penalties with State and Local Governments,"
 October 30, 1985).

     A review of the relevant statutes (the Clean Water Act and
the Miscellaneous Receipts Act)  reveals that no authority exists
under  the CWA administrative penalty authority for EPA or an
Administrative  Law Judge/Presiding Officer (ALJ/PO)  to award any
portion of an administrative penalty to a State or local
government.  Pursuant  to  the language of Section 309(g) of the
CWA,  CWA administrative proceedings are restricted to deciding
claims for violations  of  several  specific provisions of the CWA:
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           Whenever. .. the Administrator finds that any perscr. has
           violated Sections 1311, 1312, 1316, 1317, 1318, 132S,
           or 1345 of this title, or has violated any permit
           condition or limitation implementing any of such
           section in a permit issued under Section 1342 of -his
           title by the Administrator, . . .  [he] may, after
           consultation with the State in which the violation
           occurs, assess a Class 1 civil penalty or a Class II
           civil penalty. (33 U.S.C.  Sec.  1319(g) (1991))

      An  ALJ/PO's authority under Section 309(g)  of the Act. is
 limited  to deciding whether a violation has occurred and what
 penalty  to assess under the CWA.  Consequently,  an ALJ/PC may net
 entertain  State claims for penalties under State or Federal law
 or join  a  State or other third party in a penalty proceeding as a
 co-plaintiff."

      Once  a penalty is finally imposed  in accordance with CWA
 Section  309(g),  the penalty monies collected from the respondent
 must  be  deposited into the United States  Treasury.   Miscellaneous
 Receipts Act,  31 U.S.C.  3302 (1991);  see  Sierra  Club.  Inc.  v.
 Electronic Controls Design.  Inc.,  909 F.2d.  1350,  1354 (9th Cir.
 1990), PIRG v  Powell  Duffrvn Terminals.  913  F.2d 64,  81 (3rd Cir.
 1990).   Disbursement  of any portion  of  these penalty monies to =
 State or local  government or any other  party constitutes a
 violation  of the Miscellaneous Receipts Act.   Therefore,  an
 ALJ/PG may not  award  any portion of  a CWA penalty to a State or
 third party, and EPA  may not share an award  of Denalties with a
 State/

      That  a State cr  locality  -ay  not share  in a Federal
 administrative  penalty assessment  does  not preclude  a  Stats" frcr.
 seeking penalties for the same violations pursuant  to  State  law
 in  a  State  administrative or judicial forum.   In fact,  States
 with  an approved NPDES  program are required  to have  State
 enforcement mechanisms  similar to  the Federal  CWA  enforcement
 mechanisms.  States,  therefore,  have a separate  State  forum  in
 which to bring  actions  and  obtain penalties  for  State
 violations.2
     '  In a CWA administrative forum, the ALJ/PO has  no  authority
tc take  pendant  jurisdiction over State  law  claims.   Unlike the
situation in Federal civil judicial enforcement actions  under the
CWA,  the United States  and  a State may not be "co-plaintiffs" in
the CWA administrative  context.  Persons  may seek to  intervene in
an administrative penalty action for purposes  other than  obtaining
penalties,  in accordance with applicable  rules. See 40 C.F.R. Part
22.11.

     ~  A potential  res  judicata  problem exists for  States that
choose  to bring a  penalty action  after  a  judgment has  been entered
for  the  same  violations  in  a  Federal administrative penalty
proceeding.  See United  States v. ITT Ravonier. Inc.  627  F.2d 996,
1002  (9th  Cir.1980);  but see U.S.  v.  Town of Lowell, Ind. .  637
F.Supp.  254,  257  (N.D.Ind. 1985).               . •
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     In conclusion, the Clean Water Act limits the administrative
assessment of penalties to penalties for violations of Federal
law.  ALJ\PO's cannot award penalties for State claims or to any
third party.  Further, the Miscellaneous Receipts Act requires
that penalties finally assessed by an ALJ/PO must be paid only to
the United States Treasury.  States and localities, therefore,
may not share any portion of an administrative penalty assessed
under the CWA.

FOR FURTHER INFORMATION CONTACT: Mary Hayes Lawrence, at
FTS 260-9511, (EN-338); or Dan Palmer at FTS 260-2849, (LE-132);
U.S. Environmental Protection Agency; 401 M. Street S.W.;
Washington, D.C.  20460.

cc: Edward E. Reich, Acting Assistant Administrator OE
    Richard Emory, OCE
    Office of Regional Counsel Water Branch Chiefs
    Regional Water Management Branch Chiefs
    Director/ NEIC
    Richard Kozlowski, OWEC
    Susan Lepow, OGC
    Ruth Bell, OGC
    Richard Witt, OGC
    Anne Lassiter
    Dan Palmer
    Mary Lawrence
    OE Water Attorneys
    OWEC Staff
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                                                         III.B.15,
"Final Clean Water Act Section 404 Civil Administrative
Penalty Settlement Guidance", dated December 14, 1990.
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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                 DEC  14  1990
MEMORANDUM
SUBJECT:
FROM:
TO:
Final Clean Water Act Section 404 Civil Administrative Penalty
Settlement Guidance and Appendices

LaJuana S. Wilcher//.' '*''•'    /
Assistant Administrator   •  '
  for Water

James M. Sfrocjf' •
Assistant Administrator
  for Enforcement

Regional Administrators
      Attached is final guidance entitled, "Clean Water Act Section 404 Civil
Administrative Penalty Guidance on Calculating Settlement Amounts," and
accompanying appendices. The Guidance is for use by Regional wetlands staff and
Office of Regional Counsel attorneys to develop a bottomline penalty settlement,
amount in Section 404 Qass  I and Class II administrative penalty actions. The
principles of this Guidance are also applicable when developing bottomline penalty
settlement amounts in Section 404 civil judicial referrals.

      The attached Guidance and appendices were jointly developed by the Office of
Wetlands Protection (OWP)  and the Office of Enforcement - Water (OE-Water), with
valuable input from a workgroup comprised of Regional and Headquarters
representatives. The convening of this workgroup was extremely helpful in reaching
consensus on the  Guidance and we greatly appreciate the Regional participation. The
calculation  methodology set forth in the Guidance is consistent with the statutory
language on determining administrative penalty amounts and with the Agency-wide
penalty  policy.
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      If you have any questions regarding the attached final Guidance and appendices,
your staff can contact either Greg Peck, OWP, FTS 475-7799 or John Lyon, OE-Water,
FTS 475-8177.

Attachments

cc:    Regional Wetlands Coordinators
     . ORC Water Branch Chiefs
      John Studt, COE
      Margaret Strand, DOJ
      Susan Lepow, OGC
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             CLEAN WATER ACT SECTION 404 CIVIL
              ADMINISTRATIVE PENALTY ACTIONS


            GUIDANCE ON CALCULATING SETTLEMENT AMOUNTS


INTRODUCTION

      Section 309(g) of the Clean Water Act (CWA) (as amended by the Water
Quality Act of 1987) authorizes the Environmental Protection Agency (EPA) to assess
administrative penalties for, among other things, unauthorized discharges of dredged or
fill material into wetlands and other  waters of the United States. Since the CWA is a
strict liability statute, knowledge of the law's requirements is not a prerequisite to
bringing a civil enforcement action. •  Section 309(g) establishes two classes of penalties,
which differ with respect to procedure and maximum assessment, for such violations.  A
Class I penalty may not exceed "510,000 per violation," and a maximum amount of
$25,000.  A Class II penalty may not exceed "$10,000 per day for each day during which
the violation continues," and a maximum amount of $125,000.  A violation begins when
the dredged or fill material is illegally discharged,  and separate violations continue to
occur each day that the illegal discharge remains.

      This document provides guidance for EPA  staff on calculating a penalty that
EPA may accept in settlement  of a Class I or Class n administrative penalty proceeding
for a Section 404 violation.-* The guidance is designed to promote a more consistent,
national approach to the assessment of penalty settlement amounts, while allowing EPA
staff to exercise  discretion in arriving at specific penalty settlement amounts for
particular administrative penalty actions.^

      Although this document was developed for settlement of administrative penalty
cases, the principles of the  administrative penalty settlement criteria are also applicable
to judicial cases.  Thus, this document should also be used to calculate judicial penalty
settlement amounts, except that the suggested dollar amounts in the Section  404  penalty
    •'For information on other aspects of administrative penalty actions, see the
attached Appendix B, which is entitled, "Complementary Guidance on Clean Water Act
Section 404 Civil Administrative Penalty Actions."
         the January 1989 Section 404 Enforcement ^lemorandum of Agreement
(MOA) between EPA acid the Department of the. Army for the policy and procedures
regarding EPA and Corps implementation of Section 404 enforcement responsibilities,
including initiation of Section 309(g) administrative penalty proceedings.
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matrix (see  page 5) will not necessarily be applicable since judicial penalty amounts are
not limited by the administrative penalty caps.  Users of this document should
remember that most Section 404 judicial settlements also require injunctive relief.

STATUTORY AND SETTLEMENT PENALTY FACTORS

       Section 309(g)(3) of the CWA addresses the factors to consider when
determining an appropriate  penalty amount.  It states that the Agency "shall take into
account the nature, circumstances, extent and gravity of the violation, or violations, and,
with respect to the violator, ability to pay, any prior history of such violations, the
degree of culpability, economic benefit or savings (if any) resulting from the  violation,
and such other matters as justice  may require," 33 U.S.C. Section  1319(g)(3).

       The factors found in  Section 309(g)(3) form, the  basis of the Agency's initial
proposed  penalty in the administrative penalty complaint.  As a general rule, the
Regions should plead a specific dollar amount (as opposed to "up to" the maximum
penalty) when drafting the administrative penalty complaint.  For more specific
information on pleading practices and related issues, the Regions should refer to the
separate guidance document entitled "Guidance on the  Distinctions Among Pleading,
Negotiating and Litigating Civil Penalties for Enforcement Cases Under the Clean
Water .Act," issued January 19, 1989.

       Factors similar to those set forth  in the statute are embodied in EPA's
enforcement policies governing settlement  In determining appropriate penalty
settlement amounts, Regional staff should specifically bear in mind these factors as
follows:

Nature, circumstances, extent and gravity of the violation: These factors depend largely
on an assessment of environmental impacts, the significance of the resource(s)r general
national environmental goals, and professional experience.

Economic benefit to the violator  The Region will need to make an assessment of the
monetary  gam, if any, that the violator has derived from the illegal discharge. Penalties
calculated under this policy should, at a  minimum, remove any economic benefit
resulting from failure to comply with .the law.
Ability of the violator to pare  If the violator has raised the issue of ability to pay the
proposed penalty, the Region should request whatever documentation is needed to
ascertain the violator's financial condition where this factor is an issue*. Any statements
of financial condition should be appropriately certified.  Be  aware that the burden is
upon the violator to show an inability to pay.
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Prior history;  This factor addresses whether the violator previously has violated the
Section 404 permitting requirements.  Prior history information should be obtained not
only from EPA experience with the violator, but also from appropriate Corps Districts
and other federal agencies' knowledge and records.  (If the violator has a history of
CWA violations, the- Region should consider federal contractor listing procedures as
well.  See 40 CFR Part 15.)

Degree of culpability;  The two principal criteria for assessing culpability are the
violator's previous experience with the Section 404 permitting requirements  and the
degree of the violator's control over the illegal conduct.

Other factors;  Other factors as justice may require encompass both factors that
operate to reduce a penalty settlement amount, as well as factors that operate to
increase a penalty settlement amount.  An example of a mitigating factor is where the
State has imposed a  penalty and/or a removal and restoration order on the  violator. .
These costs may be considered when determining the appropriate penalty settlement.
Of course, the penalty should be of a sufficient level to promote  deterrence. An
example of an aggravating factor is lack of cooperation upon the part of the violator.

PENALTY SETTLEMENT CALCULATION

      To calculate the minimum penalty that EPA may accept in settlement of a Class
I or Class II administrative  penalty proceeding for a Section 404 violation, the case
development team-3 should undertake the following steps:

            Calculate the economic benefit of noncompliance;

            Calculate the environmental significance of the violation and the
            compliance significance of the violator using the Section 404 penalty
            matrix at page 5;

       •     Calculate any relevant adjustment factors such as recalcitrance, ability to
            pay, and litigation considerations;

       •     To determine the appropriate administrative penalty settlement amount,
            add the economic benefit component to the environmental and
            compliance significance component and modify this  total based on any
            relevant adjustment factors.


      3For purposes of this guidance, the case development team refers to the
Regional wetlands program and ORC staff responsible for developing and pursuing a
particular administrative penalty action.                  "        ""
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The results of these calculations should be documented as dollar amounts on the
"Worksheet for Calculating Section 404 Settlement Penalty," found at the attached
Appendix A.  An explanation of economic benefit, environmental significance and
compliance significance, and the adjustment factors follows.

Economic Benefit

      The case development team will need to calculate the full economic benefit, if
any, obtained by the violator from the violation that is the subject of the administrative
penalty  proceeding.  The economic benefit that a violator obtains from a violation
involving Section 404 may include, for example:

             The increased property value directly resulting from an unlawful discharge
             of dredged or fill  material;

             Delayed costs, as  described below, concerning after-the-fact (ATF) permits
             (see also discussion of delayed compliance under Recalcitrance on page
             8);

             Avoided costs by, for example, avoiding  the expense of hauling dredged
             spoil to an upland disposal site by disposing of it in wetlands or other
             waters of the United States;

             Profit from the temporary use of the property to the extent that the. profit
             would not have accrued but for the  illegal discharge.  Such profit would
             include, for example, that generated from such uses as agriculture, logging,
             commercial hunting, or aquaculture  and  which the violator made prior  to
             ceasing operation or removing the unlawful discharge or otherwise
             restoring the property, or before issuance of an ATF permit from the
             Corps;

             Profit obtained by a violator (for example, a contractor who unlawfully
             discharged fill material)  who .is not the owner of the subject property, but
             who nevertheless  benefited from the violation.

      The aac_deyelopment team should use its best professional judgment to:
identify the types of economic benefit, if any, obtained by the violator, identify the
information needed to  calculate the value of the various types of economic benefit
relevant in the subject  case; and determine the most appropriate method for obtaining
the information needed.

      In exercising its professional judgment, the case development team should
consider the following- general principles.          	            	    --    — -
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       First, a violator of Section 404 may have obtained several types of economic
benefit from its violation, and the case development team should calculate  an amount
that represents the total economic benefit wrongfully obtained.

       Second, although a violator may restore the wetland or take other action which
reduces the settlement penalty, the  Region should not reduce the settlement  penalty
calculated until the restoration or mitigation has been completed by the violator or has
become embodied in a Section 309(a) administrative compliance order (AO)  or similar
Corps  order, or unless the Region determines that the violator has  satisfied the
requirements for issuance of an ATF permit

       Third, an ATF permit issued by the Corps legitimizes a discharge from the date
of issuance forward, but does not excuse the violation which occurred before  the permit
was issued.  In cases in which the violator obtains an ATF permit, the Region should
quantify any economic benefit obtained  from the violator's failure to obtain the permit
before discharging.  Such benefit  would  not include permanent increased property
values, but may include, for example, temporary profits realized before the  ATF permit
was issued, or delayed or avoided costs of complying with ATF permit conditions.

       Where applicable, the Region may wish to use a computer model such as BEN
to calculate the economic benefit obtained  by the violator from delaying or avoiding
compliance costs.

Section 404 Penalty Matrix

       The Region should use the following Section 404 Penalty Matrix to assign the
appropriate level of settlement penalty based upon the determined  level of
"Environmental Significance" and  "Compliance Significance."
                                                                      V
                        SECTION 404 PENALTY MATRIX

                            Environmental Significance

Compliance
Significance          MINOR             MODERATE            MAJOR
MINOR           $500 - 5,000          $5,001 - 15,000         $15,001 - 40,000
MODERATE       $5,001 - 15,000       $15,001 - 40,000        $40,001 - 75,000
MAJOR           $15,001 - 40,000       $40,001 - 75,000        $75,001 - 125,000
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       The criteria upon which the penalty ranges in the matrix are based are described
below.  The "Environmental Significance" criteria relate to the violation factors under
the Act (e.g., "nature, circumstances, extent and gravity of the violation")  and the
"Compliance Significance" criteria relate to the violator factors under the  Act (e.g.,
"prior  history" and "degree of culpability").

"Environmental Significance" Criteria

       •     Significance of impact under the Section 404(b)(l) Guidelines
             Acreage of the aquatic area affected
             Duration of the  illegal discharge
             Chemical nature of the discharge material
             Pre-existing quality of the aquatic site

       The above  factors are relevant, to characterizing the environmental significance of
an illegal discharge in terms of whether and how the discharge affects important aquatic
functions.  Overall effects of an illegal discharge will depend on a variety  of factors
unique to the circumstances of each case.  For example, the size of the affected
ecosystem, although a relevant factor, may not always be determinative of
environmental significance.  The  loss of a specific wetland of an acre or less  may be of
higher environmental concern than the  loss of a much larger wetland area, after
consideration of such factors as functions and values performed, location,  and
cumulative losses within the system.

       The above  factors demonstrate that the environmental significance  of an
individual illegal discharge is appropriately evaluated over a range of impacts. The
guidance provided here regarding the determination of "major," "moderate," and .."minor"
environmental significance reflects generalizations intended to contribute to consistency
in application of the penalty matrix, rather than to establish hard and fast rules. The
explanation for what constitutes "major" environmental significance is the  most thorough
due to the broad existing discussion of significance in the Section 404(b)(l) Guidelines.

       Generally, if a high quality aquatic area is significantly impaired in  performing its
functions by an illegal discharge,  the impairment should be characterized as having
"major" environmental significance. "Minor" environmental significance includes an
illegal  di«gh<»^-trith impacts to low-quality aquatic areas or an illegal discharge with
negligible impacts to moderate- or high-quality aquatic areas. An illegal discharge
which jeopardizes  the functions and values of an aquatic area not recognized as being
either  of particularly low or high quality, which performs'relatively few ecological
functions, or where cumulative losses have been few, may be considered to have
"moderate" environmental significance.
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       An illegal discharge should be characterized as having "major" environmental
significance if it: causes significant environmental effects to high-quality aquatic areas;
causes or contributes to violations of state water quality standards;  violates any
applicable toxic effluent standard or prohibition under Section 307 of the CWA;  or
jeopardizes  the  continued existence of an endangered or threatened species or will
result in the likely destruction or adverse modification of habitat designated as critical
habitat under a state or federal endangered species law.

       Furthermore, an illegal discharge that causes or contributes to significant
degradation to wetlands or other waters of the United States generally should be
considered "major."  Effects that may contribute, either individually or collectively, to a
finding of significant degradation include: effects on municipal water supplies;  effects
on life stages of aquatic life and other wildlife dependent on aquatic ecosystems;
effects on ecosystem diversity, productivity, and stability (including loss of habitat);  and
effects on recreational  and aesthetic values.  See 40 CFR Section 230.10(c).  In addition
to considering the direct effects of the discharge, consideration also should be given to
the cumulative and indirect effects of the discharge.  See 40 CFR Section 230.11(g) and
00-

       An additional relevant consideration is whether the aquatic area is rare or
unique, which can be determined, at least in pan, in terms of whether or not the
technical capacity is available to restore the  area to its pre-discharge character.
Moreover, an illegal discharge in a site delineated as unsuitable under 40 CFR 230.80,
identified as having a Section 404(c) prohibition or restriction, or established as a
restored or  enhanced wetland under an  approved mitigation plan generally should be
considered as having "major" environmental  significance as well.  ,

"Compliance Significance" Criteria

             Degree of culpability
             Compliance history of violator
             Deterrence  value

       The penalty matrix exhibits a range of compliance significance of "minor,
moderate, and major."  When, determining whether to characterize a particular violation
as bring of'Wrr™'." "™™**nt*" or "major" compliance significance, respectively^ the .
case development team should use the above criteria.

       In assessing the  violator's degree  of culpability for the violation, the case
development team generally should consider the violator's experience with the Section
404 permitting requirements and the violator's degree of control over the violative
conduct The criteria for assessing the violator's experience is whether the violator
knew or should have known of the- need to obtain a Section 404 permit or of the
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adverse environmental consequences prior to proceeding with the discharge activity.
For example, someone who has had previous experience with the Section 404
permitting requirements  generally should  be characterized as having "major" compliance
significance.  With regard to the  violator's control over the violative conduct, .there may
be  situations where the violator may bear less than full responsibility or may share
liability for the occurrence of a violation.   In such situations, the violation generally
should be characterized  as having "moderate" compliance significance for that particular
violator.

       Also relevant when determining compliance significance is the violator's past
compliance history.  Generally, a violator  with one or more prior Section 404  violations
that were the subject of  a formal enforcement response by either EPA or the Corps
should be characterized  as having "major" compliance significance.  (Note that, in  the
case of a repeat violator, the  Region may decide that a civil or criminal judicial referral
is the more appropriate  enforcement response, depending upon the particular facts of
the case.)  Another relevant factor may be the need to deter future Section 404
violations by this particular violator and/or others in the regulated community.

       The above criteria are not in any order of priority and the examples  regarding
the range of penalty to be pursued are  not intended to be all inclusive or mutually
exclusive.  The Regions should use best professional judgment to characterize
environmental significance and compliance significance.

Adjustment Factors

       After calculating economic benefit, as well as environmental and compliance
significance based upon the Section  404 penalty matrix, the  Region may need  to modify
the penalty settlement amount based upon recalcitrance, ability to pay, and litigation
considerations.

       The penalty settlement amount may be adjusted upward to reflect any
recalcitrance by the violator as demonstrated,-for example, by the violator's failure to
cooperate by providing information,  ceasing activities, or allowing access to property.  If
a violator is uncooperative with regard to complying with the requirements of a Section
309(a) administrative compliance order to remove fill and/or restore the site, the
settlement peaalty should be increased by at least the amount of economic benefit to
the violator from the delay in making removal and/or restoration expenditures.

       With regard to ability to pay, EPA wfll generally not  request penalties that are
clearly beyond the means of the violator.  If the violator raises the issue of inability to  .
pay, the Region should evaluate the ability of the violator to pay the proposed
administrative penalty. As stated above at page 2, the violator has the burden of
establishing inability to pay a  penalty.  Evaluation by an outside financial consultant

                                         8
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may be necessary to evaluate the violator's assertion of inability to pay an  - -
administrative penalty.            .

       Litigation considerations justifying a reduction in the penalty amount that. the. __.
Region may accept in settlement of an administrative penalty proceeding may be due to
applicable precedent, competing public interest considerations, or the specific facts or
evidentiary issues pertaining to a particular action. Any reductions based on litigation
considerations must be clearly documented in the case file.

PRIVATE RIGHTS

       The procedures set forth in this document and the accompanying appendices are
intended for the guidance of government personnel. They are not intended, and cannot
be relied on, to create any rights, substantive or procedural, enforceable by any party in
litigation with the United States.  The Agency  reserves the right to act at variance with
these procedures and to change them at any time without public notice.
SECTION 404 ENFORCEMENT CONTACTS

Office of Wetlands Protection

      Greg Peck               FTS 475-7799
      Hazel Groman           FTS 475-8798
      John Goodin             FTS 245-3910

Office of Enforcement - Water

      John W. Lyon            FTS 475-8187
      Etyse DiBiagio-Wood     FTS 475-8177
      Susan Gary Watkins       FTS 475-8320
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                             Enforcement Sensitive
APPENDIX A - Worksheet For Calculating Section  404
Settlement Penalty
Case Name:	
Respondent's Name:.
1.    Economic Benefit considering such factors as:

      • increased property value?

      • delayed costs concerning ATF permit?

      • avoided costs?

      • profit from temporary use?

      • economic benefit for violator who is not the
        property owner?*

      • other?
                                                          1

                                                          1
                                                          1

                                                          $
                                              Subtotal A   $_
2.     Environmental and Compliance Sipificance   Subtotal B
      (from matrix)

3.     Adjustment Factors:

      • Recalcitrance (+)

      • Ability to Pay (•)

      • Litigation "Considerations (+ or -)
                                                         L

                                                         1

                                                         $
                                              Subtotal C  $_
4.     Total Settlement Penalty (A + B + C)
                                              TOTAL
* This component should be completed only for non-property owners.
Date
                             Name of Preparer
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APPENDIX B  -  COMPLEMENTARY GUIDANCE ON  CLEAN
WATER ACT SECTION 404 CIVIL ADMINISTRATIVE
PENALTY ACTIONS


      The material in this appendix is intended to complement the document entitled,
"Clean Water Act Section 404 Civil Administrative Penalty Actions: Guidance on
Calculating Settlement Amounts" (Section 404 Administrative Penalty Settlement
Guidance). The Section  404 Administrative Penalty Settlement Guidance  provides a
methodology for calculating the  penalty amount that a Region may accept when settling
an administrative penalty action for Section 404 violations.  This guidance  complements
the penalty calculation methodology.with respect to:  (1) explaining the relationship
between administrative penalty actions and other Section 404 actions; (2) providing
factors to consider when  deciding whether to initiate an administrative  penalty action in
response to a Section 404 violation; (3) providing an approach for incorporating
alternate penalty payments into  administrative penalty consent agreements, where
appropriate;  and (4) explaining the statutory requirement for state consultation.
RELATIONSHIP OF ADMINISTRATIVE PENALTIES TO OTHER
SECTION 404 ACTIONS

      The Clean Water Act (CWA) provides EPA with various enforcement
mechanisms for responding to violations of Section 301(a) for discharging without or in
violation of a Section 404 permit- Section 309(g) gives EPA the authority to assess civil
administrative penalties for, among other things, violations of Section 404. Under
Section 309(a), the Agency is authorized to issue an administrative compliance order
(AO) requiring a violator to cease an ongoing unauthorized discharge and refrain from
future illegal discharge activity, and where appropriate to remove unauthorized fill
and/or otherwise restore the site.  A third enforcement mechanism allows EPA to seek
monetary penalties, injunctive relief, and prison sentences through judicial action under
Sections 309(b) and (c) of the CWA.  Under these-provisions, the Agency may refer
cases to the Department of Justice (DOJ) for civil and/or criminal litigation.

      Before-a Region can initiate any enforcement action, it must first establish a
violation of Section 3ftl{a)-of the CWA by determining that there has been a discharge
of dredged or fin material from a  point source to a water of the United States by a
person in the absence or in violation of a required Section 404 permit. The  Region
must then determine what action(s) to pursue against the violator, based upon the
circumstances of the particular violation.

      A description of the relationship between Section 309 administrative penalty
actions and other Section 404 actions follows.
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Section 308 Letters

      A Section 308 letter is a tool whereby the Region can obtain/demand
information from an alleged violator to determine the existence and/or extent of a
violation.  Section 309(g) specifically allows for assessment of an administrative  penalty
for violations of Section 308 (for  example, failure to respond to a Section 308 request
for information regarding an alleged unauthorized Section 404 discharge). The  Section
308 letter should notify the recipient that failure to respond  can result in the assessment
of an administrative penalty.

Administrative Orders

      A principal goal of EPA's  Section 404 enforcement program is to  correct any
environmental harm resulting from  an  unauthorized discharge. Normally, this goal can
be achieved through issuance of an AO under Section 309(a) ordering the violator to
cease any ongoing violation and, where appropriate, to remove unauthorized discharge
material and/or otherwise restore the site. A Region cannot seek administrative
penalties for non-compliance with an AO per se; however, administrative  penalties can
be sought for the underlying violation of the CWA that gave rise to the issuance of the
AO, i.e., the unauthorized discharge activity.

      A Section 309(a) AO seeking removal and/or restoration has been a common
enforcement tool for responding to  Section 404 violations and should continue to-be
viewed as such since it affords immediate environmental protection to a resource
impacted by an illegal discharge.  Where appropriate, a Region may respond to a
Section 404 violation by both issuing an AO seeking injunctive-type relief and initiating
an administrative penalty action.  However, as explained in the EPA guidance entitled,
"Relationship of Section 309(a) Compliance Orders to Section 309(g) Administrative
Penalty Proceedings," issued August 28, 1987, AOs and administrative penaltyv
complaints should be kept procedurally separate: they should be issued and docketed
as separate  documents. Moreover,  it is generally advisable (although not required) for
a Region to issue an AO seeking removal and/or restoration well in advance of  an
administrative penalty.complaint  In those cases where'the violator does  not comply
with the terms of the AO and the Region determines that there.is an immediate need
for injunctivc. relief, the Region should seek judicial enforcement of the AO through a
referral to EBJ as soon as possible. Also, a civil judicial referral is the appropriate
enforcementmechanism where there is noncompUance with the terms of  an AO and
the Region determines that it is not likely to obtain the needed injunctive-type relief
within the administrative  arena.
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Judicial Actions

       Under Section 309(g)(6), payment of an administrative penalty to EPA forecloses
any possibility of future judicial action for civil penalties for that specific violation. This
fact is of particular importance if the Region is attempting to build a case for eventual
referral to DOJ by documenting a history of violations.  Therefore, a Region should not
initiate an administrative penalty action against a violator for a particular Section 404
violation if a subsequent judicial action seeking civil penalties for that specific violation
is desired.  Note, also that, as stated above, the Agency can seek both injunctive relief
and monetary penalties in a civil judicial referral, whereas the Agency can seek  only
administrative civil penalties in a Section 309(g) complaint. Generally, therefore, a civil
judicial referral is the appropriate  enforcement mechanism in those 404 cases where the
Region initially determines that it cannot obtain needed injunctive-type relief within the
administrative arena.

After~the'Fact Permits

       Issuance of an after-the-fact (ATF) permit by the Corps of Engineers authorizes
a discharge from the date of issuance onward.  It does not cure the period of violation
prior  to issuance of the permit.  Consequently, an administrative penalty may be
assessed for each day that the illegally discharged material remained in place prior  to
issuance of an ATF permit.

       The 1989 EPA/Army Enforcement Memorandum of Agreement (MOA) directs
the Corps not to accept applications for ATF permits until resolution of the  violation
has been reached through an appropriate enforcement response as determined by the
lead enforcement agency.  This language is intended to ensure that ongoing EPA
enforcement actions are not compromised by Corps issuance of an ATF permit.
However, there will be situations where EPA determines that issuance of an ATF
permit is consistent with, and should precede completion of,  an EPA enforcment action.
The Regions are encouraged to coordinate  with their respective Corps Districts
accordingly.

       Despite the MOA provision, the ATF process is likely to raise difficult questions
in some administrative penalty actions that  the Region will need to resolve when
determining an appropriate penalty amount. As indicated above, in those cases where
the Region determines that the violator would have received a permit before the fact or
should receive one if an ATF permit application is processed, it may be appropriate to
allow the ATF process to  go forward and, where appropriate, to direct the violator to
implement  interim control measures. However, in those cases where  the Region has
sufficient information  as a result of its enforcement investigation to conclude that the
illegal discharge does  not comply with the Section 404(b)(l) Guidelines, it is  reasonable
to require the violator to undertake removal/restoFatioe-before asy permit is sought.  In
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such cases, the Region should inform the Corps that the ATF process should not
proceed pending EPA resolution of the administrative  penalty action and should
subsequently notify the Corps of the completed enforcement action.

WHEN ARE ADMINISTRATIVE PENALTIES BY EPA APPROPRIATE

       A basic discussion on when to use administrative penalties in CWA enforcement
is provided in  the EPA document entitled, "Guidance on Choosing Among Clean Water
Act Administrative, Civil and Criminal Enforcement Remedies," issued August 28, 1987.
For violations  which occurred prior  to February 4, 1987 (the enactment date of the
1987 Amendments to  the CWA),  the Regions should refer to the EPA document
entitled, "Guidance on Retroactive Application of New Penalty Authorities Under the
Clean Water Act," issued August 28, 1987.  Also, the Regions  should refer to the
"Guidance on  'Claim-Splitting' in Enforcement Actions Under the Clean  Water Act,"
issued  August  28, 1987, with regard  to questions on parallel proceedings  or
simultaneous administrative penalty  proceedings.  The following discussion focuses on
the appropriateness of an administrative penalty proceeding in response to an
unauthorized discharge of dredged or fill material.-*

       When deciding whether to  initiate an administrative penalty action, the Region
should consider whether assessment  of such a penalty will serve any or all of the
general enforcement goals of deterrence, swift resolution of environmental problems,
and fair and equitable treatment of  the regulated community.  If the answer to these
questions is  yes, it is likely that assessment of an administrative penalty is an
appropriate  enforcement response to the violation.  To ascertain whether a Region's
limited enforcement resources should be utilized for a particular case, issues such as the
history of the violator, the significance of the affected resource, and the significance of
the discharge should be considered.
                                                                       V
      The threshold for deciding whether to initiate an administrative penalty action in
response to  a particular Section 404 violation  is relatively low.  Examples where an
administrative  penalty action is an appropriate enforcement response include the
following:             ,    '

       •     Failure to respond to a Section 308 letter,
    -'The need for or appropriateness of initiating an EPA administrative penalty action
against violations in States which have assumed the Section 404 program (i.e., Michigan)
may be dependent upon the approved State program.  These situations will therefore be
handled on a case-by-ease basis.
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             Illegal discharges that have received or are likely to receive an ATF
             permit;

             Illegal discharges where an AO for removal/restoration is not feasible;

             Illegal discharges where an AO has been issued and the  Region
             determines that an administrative penalty action also is appropriate.
ALTERNATE PENALTY PAYMENTS

       One final point relates to the opportunity for obtaining removal/restoration in
the context of administrative penalty settlement negotiations. In appropriate Section
404 cases,  a Region may want to initiate an administrative penalty action against a
violator for an illegal  discharge that the Region would like removed, believing that in
the context of settlement negotiations it will be able to use successfully the Section
309(g) action as leverage to get the discharge material removed more expeditiously.
Generally,  the Region will have previously issued an AO requiring such
removal/restoration. In the  course of negotiations aimed at settling the administrative
penalty action, the violator may in fact demonstrate a willingness to correct the
environmental harm resulting from the illegal activity, i.e., to remove the illegal
discharge material and/or restore the site.

       Where appropriate, the Regions do have discretion to enter into administrative
penalty consent orders that  incorporate the violator's willingness to remove illegal
discharge material.  The key benefit to this approach is that it provides the Region with
the opportunity to achieve removal and restoration quickly.  In addition to the standard
administrative penalty consent order language, an order providing for alternate^ penalties
based upon expeditious completion of removal/restoration requirements should also
include language that is consistent with the Anti-Deficiency Act and the Miscellaneous
Receipts Act, and that preserves the Agency's remedies in the event of noncompliance
with the terms of the  consent order. Such language should provide that:

             The violator is agreeing to undertake or has undertaken the
             removal/restoration to mitigate  the environmental harm from the illegal
             The violator will pay a penalty of a specified amount and that EPA, in
             determining the amount of .the penalty, has taken into account the
             violator's agreement to undertake the removal/restoration as pan of the
             statutory factors; and
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             .The violator agrees that, if it does not complete the project to the
             satisfaction of EPA, the Agency retains the authority to assess an
             additional penalty of a specified amount for the continuing violations and
             to take additional enforcement action.

Ordinarily, there will be a cash component of the penalty consent order that recovers at
least economic benefit.  Also, the consent agreement should clearly state that the
Agency retains the authority to take additional enforcement action in the  event of
noncompliance with the CWA or nonpayment of the assessed penalty. Moreover, care
should be taken to make the agreement as specific as possible with regard to the details
of the removal/restoration project and the dates for its completion. It is strongly
recommended that, simultaneous with or in advance of the penalty consent order, the
Region issue an AO incorporating the removal/restoration upon which a settlement
depends.  The penalty consent order should reference the AO to clarify the
requirements that must be  satisfied to avoid further assessments for continued
noncompliance with the CWA.  Alternate penalty payments should not be used in
situations where the violator appears to  be recalcitrant.
STATE CONSULTATION

       Prior to issuance of a final order assessing an administrative penalty, Section
309(g) requires that the Region consult with an appropriate State agency regarding such
assessment For the Section 404 program, the appropriate State contact will be the
agency administering the State 404 program.  However, where the State has not
assumed the 404 program, the appropriate State contact is the State agency that
implements the State wetlands regulatory program, provided, that such program has
jurisdiction over the illegal activity in question, or in the absence of such a State
wetlands regulatory program, the State Section 401 certification agency,  unless another
State agency is agreed  to by the Region and the respective State through an existing
State/EPA Enforcement Agreement (which addresses Section 404) or some other formal
agreement with the State. The procedure for such consultation should be discussed and
decided upon  by the Region with their respective State contact, consistent with
"Guidance on  Class I Clean Water Act Administrative Penalty Procedures," issued July
27, 1987, for Class I penalties and "Rules of Practice Governing the Administrative
Assessment ofChm H Civil Penalties Under the Clean Water Act," 40 CFR Section
2238, for Oa» n penalties.
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SECTION 404 ENFORCEMENT CONTACTS

Office of Wetlands Protection

      Hazel Groman          FTS 475-8798
      John Goodin            FTS 245-3910

Office of Enforcement • Water

      Elyse DiBiagio-Wood     FTS 475-8187
      Susan Gary Watkins      FTS 475-8320
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     Ul
     U
 United States Environmental Protection Agency
                 Office of Water
               Office of Enforcement
              Washington, D.C 20460


     United States Department of the Army
            Office of the Assistant Secretary
             Washington, D.C 20310-0103
MEMORANDUM
                                                   1 2 DEC 1990
SUBJECT:  Wetlands  Enforcement-initiative
FROM:
TO;
James M. Strock^
Assistant Admini!
  for Enforcement

LaJuana S. Wilcher
Assistant Administrator
  for Water
G. Edward Dickey
Acting Assistant Secretary of  the Army
  (Civil Works)

Regional Administrators
Director of Civil Works
     We are seeking the participation of EPA Regions and Corps
Districts in an enforcement initiative to protect wetlands.   The
Wetlands Enforcement  Initiative  is designed to emphasize the
Federal government's  commitment  to Clean Water Act Section 404
enforcement, to generally  educate the regulated community and the
public at large about the  requirements of the Section 404 program
and the importance of wetlands,  and to publicize Clean Water Act
violations involving  the unauthorized discharge of dredged or
fill material.  EPA and the Department-of the Army have placed
high priority on protecting this Nation's wetlands and recognize
that an active Section 404 .enforcement program is one important
wetlands protection tool.

     The Wetlands Enforcement  Initiative will be .similar to  EPA's
FY 89 municipal pretreatment enforcement initiative under the
Clean Water Act.  That initiative concluded with the filing  of
several important cases and a  major Agency press release and
press conference.  We are  proposing to publicize the Wetlands
Enforcement Initiative in  two  phases.   The first "wave" of
publicity is planned  for April199i.  It will announce the
Initiative and highlight appropriate Section 404 enforcement
actions initiated or  resolved  over the previous 12 months.   We
also hope to file a "cluster"  of Section 404 cases at that time,
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if such a filing does not  unduly  interfere with the normal  flow
of cases.                   -__;:::..

     By alerting the regulated  community,  as  well as the general
public, to the Federal government's  commitment to Section 404
enforcement, this Spring announcement  is also intended to provide
an early deterrent to potential violations which might otherwise
occur during the 1991 Spring  and  Summer construction season.  The
second "wave" of publicity is scheduled- for October 1991 and will
highlight appropriate Section 404 enforcement actions initiated
or resolved during FY91, including cases resulting from
investigations conducted during the  Spring field season.  We also
hope to have a second "cluster" filing at  that time.  Each
announcement will consist  of  a  joint EPA/Army/Department of
Justice (DOJ) press release and press  conference.  In the press
release, we will acknowledge  Section 404 administrative
compliance orders, cease and  desist  orders, administrative
penalty orders and judicial cases initiated or resolved by the
Regions and Districts during .the covered time period.  At the
press conferences, we will  highlight those administrative and
judicial cases that best serve  to illustrate  the Initiative's
goals.

     The Wetlands Enforcement Initiative will include cases
involving both unpermitted  discharges  of dredged or fill material
into wetlands and discharges  in violation  of  the conditions in a
Section 404 permit.  Regions  and Districts will have flexibility
to decide which enforcement actions  are most  appropriate to
support the Initiative.  In making enforcement decisions, Regions
and Districts should consider:  The "EPA/Army  Guidance on Judicial
Civil and Criminal Enforcement  Priorities;" the "Clean Water Act
Section 404 Civil Administrative Penalty Settlement Guidance and
Appendices;" the Clean Water  Act Section 404  Enforcement
Memorandum of Agreement; and  the additional guidance discussed
below, and should focus on  the  most  significant          ^
violators/violations in each  of the  Regions or Districts.

     While this Initiative  focuses on wetlands protection,
Section 404 enforcement actions involving  unpermitted discharges
and violations of 404 permit  conditions to other waters of the
United States can be included.  We suggest, however,  that,  where
possible, the Regions and Districts  focus  on enforcement actions
which have one or more of the following elements:

          - a discharge into  a  wetland that is identified on the
Region's Priority Wetland List  or is an important and/or
threatened area in the Region or District;•

          -  a case which will  have  high deterrence value in the
Region, District or Nation, e.g., a  particular industry,  business
or land development entity which engaged in unauthorized
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discharges of dredged or fill material.

          -  a discharge by a repeat or flagrant violator;  e.g.,
someone who engaged in an unauthorized discharge activity after
being denied a Section 404 permit or withdrawing a permit
application for. such activity.                        ~ ~

The above list is not intended to exclude other cases of
importance.
         •
     As noted above, the Wetlands Enforcement Initiative will
consist of cease and desist orders, administrative compliance
orders, administrative penalty actions and civil judicial
referrals.  In addition, appropriate criminal actions, which have
been approved in accordance with each agency's procedures for
criminal referrals, may also be included in the press
announcements.  Because Regions and Districts follow different
procedures in initiating enforcement responses, we have provided
two separate schedules for implementing this Initiative.

EPA Regions

     We propose that the Regions issue Section 309(a)
administrative compliance orders and Section 309(g)
administrative penalty complaints on the schedule described.
below.  Administrative compliance orders and administrative
penalty orders are not subject to Headquarters concurrence  (with
the exception of those Regions that have not fulfilled
Headquarters concurrence requirements concerning.the requisite
number of Section 309(g) complaints and consent agreements).
Headquarters will review Section 309(g) complaints and consent
agreements, however, for the purpose of determining whether such
orders should be highlighted in Initiative press activities.
       •

     We ask that the Regions submit case referrals by no later
than February 15, 1991, for the April announcement and by August
1, 1991 for the October 1991 announcement.  We do not intend,
however, to delay the processing of referrals submitted earlier.
Each Region should submit one or more civil judicial referrals
and should also issue administrative compliance orders and
administrative penalty, orders as appropriate.  After receipt of
the referral packages, the.Regions, Headquarters and DOJ, in
consultation with the Army,  will decide if suits should be filed
simultaneously or in some other coordinated manner, as indicated
in the following schedule:

     1.  Headquarters/Regional conference -calls
to discuss Call Letter.                          Dec. 18, 1990

     2.  Regions submit to Headquarters a list
and brief description and schedule for candidate
enforcement actions.                             Jan. 8,  1991
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     3.  Headquarters/Regional conference  call
to discuss candidate cases and confirm schedules
for candidate enforcement actions.                Jan.  22,  1991

     4..  Deadline for Regions to submit referrals
to Headquarters for April filing.                '  Feb.  15,  1991

     5.  Deadline for Regions to issue
administrative compliance orders, administrative
consent orders and administrative penalty  complaints
(copies of issued compliance orders, consent orders and
administrative penalty complaints should
be supplied to Headquarters after issuance).       Mar.  23,  1991

     6.  Headquarters completes coordination of
national communications strategy with  Regions,
Army and DOJ for April announcement.               April 1,  1991

     7.  Likely judicial case filing dates.        April 23, 1991

     8.  Joint press release and/or joint  press
conference held.                                   April 23, 1991

     9.  Regions submit to Headquarters  a  list
and brief description and schedule for candidate
enforcement actions for October announcement.      June 14, 1991

     10.  Headquarters coordinates with Regions
and confirms schedules for candidate enforcement
actions.                       .            .       July 1, 1991

     11.  Deadline for Regions to submit civil
judicial referrals to Headquarters for October
filing.                                           Aug. 1,^1991

     12.  Deadline for Regions to issue
administrative compliance orders, administrative
consent orders and administrative penalty complaints
(copies of issued compliance and consent
orders and administrative penalty complaints should
be supplied to Headquarters after issuance).       Sept. 13, 1991

     13.  Headquarters completes coordination of
national communications strategy with Regions,
Corps and DOJ for October announcement.           Sept. 20, 1991

      14.  Likely judicial case filing date.  Oct.  15,  1991

      15.  Joint press release and/or joint press
conference held.                                  Oct. 15,  1991
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      We  request that each Region complete the attached  form  on
 cases that  are  candidates for  inclusion in the Wetlands
 Enforcement Initiative,  and submit the  forms to Hazel Groman of
 the Office  of Wetlands Protection and Elyse DiBiagio-Wood  of the
 Office of Enforcement by January 8,  1991 or June 14, 1991, as
 appropriate.  Headquarters staff assigned to the Initiative  and
 available to answer questions-  include Hazel Groman, OWP, FTS 475-
 8798,  and Elyse DiBiagio-Wood, OE-Water,  FTS 475-8187.

 Corps Districts

      Unlike EPA,  Corps Headquarters  will  not participate in  the
 decision as to  which suits should be filed.   The Initiative  is
 not intended ^to affect ongoing Corps enforcement activities.
 Districts should continue to employ  all  enforcement options,  as
 discussed in the attached joint  guidance  letter.  For purposes of
 the Initiative,  however,  we ask  that each District submit two
 planned  or  pending  enforcement actions'  for each phase of the
 Initiative  which, in the District's  opinion,  target particularly
 egregioufs violations.  We will then  decide which cases  are proper
 candidates  to be publicized at the joint  press  conference.  The
 Districts should submit  their actions in  accordance with the
 following schedule:

      1.  Districts  submit to Headquarters  two
 planned  or  pending  enforcement actions to  be
 included in the April announcement.               Feb.   4, 1991

      2.  Headquarters coordinates  with Districts
 and confirms schedules for enforcement actions.    March 5, 1991

      3.  Headquarters completes coordination
 of national communications  strategy with EPA
 and DOJ.                                           April 1, 1991
                                                         t

      4.  Joint  press release and/or  joint press
 conference.                                       April 23,  1991

      5.  Districts submit to Headquarters two
planned  or  pending enforcement actions to be
 included in the October announcement.              July 2,  1991

      6.  Headquarters coordinates with Districts
and confirms schedules for enforcement actions.    Aug.  20,  1991

      7.  Headquarters completes coordination
of national communications strategy with EPA
and DOJ.                                          Sept.  20,  1991


      8.  Joint press release and/or joint press

                                5
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 conference.       •                                Oct. 15, 1991

     We request that each District complete the attached fora on
cases that'it believes should be publicized in the Enforcement
Initiative, and submit the form, in duplicate, to Jack .Chowning,
HQUSACE, CECW-OR by February 4, 1991 and July 2, 1991.
Headquarters staff available to answer questions regarding the
Initiative include Jack Chowning, 272-1781, and Martin Cohen,
HQUSACE, CECC-K, 272-0027.

     We realize that the above schedule will require a large
effort by Regional and District offices'.  However, we believe
that the Initiative is critical to the priority goal
of the agencies to protect wetlands, and greatly appreciate your
continued support of the Initiative.  We will .make Headquarters
personnel  available to assist the Regions and Districts. .

Attachment

cc: Regirr.al Counsels
    Direj-ors, Water Mgrat Div., Regs.I, II, IV,  V, VIII, ix and X
    Directors, Env'l Services Div., Regs. Ill and VI
    Ass,t Regional Administrator, Policy and Management, Reg.  VII
    Margaret Strand,  Chief, Environmental Defense Sec., DOJ
    John Studt, Chief, Regulatory Branch, COE
    Pat Alberico, OCE
    Fred Stiehl, OE-Water
    Dave Davis, OWP
    Martin Cohen, Assistant Chief Counsel for Litigation, Office
    of the Chief Counsel, USACE
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                                  ..  -                *
                       FMPQRCEMENT  TNTTTXTTVE BEPORT
1.  Name of alleged violator(s):
2.  Location:
3.  Description of violation; project of which it is.part; and
resultant harm:
4.  Describe the reasons for Regional/District selection of case;
5.  Does the enforcement action require time sensitive relief,
such as injunctive relief affected by seasonal constraints?
Explain:.
6.  Is a repeat or flagrant violator involved?
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7.  Communication among EPA, Corps, FWS or  State agency:
8.  Date(s) of inspection, and agencies conducting inspections:
9.  Other contact between EPA or Corps and alleged violator
(e.g., warning letter, notice of violation, prior enforcement
action, application for "after-the-fact" permit, settlement
negotiation):                            •
10.  Proposed enforcement response (e.g., AO, civil referral,
criminal referral); proposed date for action; and relief sought:
ATTACH ADDITIOKAL PAGES, IF APPROPRIATE, TO RESPOND TO ANY OP THE
ABOVE QUESTIONS.


*Please note that a separate report should be prepared for each
candidate enforcement action.
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c
             United States Environmental Protection Agency

                 United States Department of the Army


        GUIDANCE ON JUDICIAL CIVIL AND CRIMINAL
                    ENFORCEMENT PRIORITIES


BACKGROUND

    This document provides guidance to the Environmental Protection Agency (EPA)
Regions and Army Corps of Engineers Districts on enforcement priorities for
unauthorized discharges of dredged or fill material in waters of the United States in
violation of section 301 of the Clean Water Act (CWA).  Unauthorized discharges
include both discharges that are unpermitted and discharges that violate permit terms
or conditions. The guidance enumerates factors enforcement personnel should consider
when deciding whether to refer a case for judicial action.  By providing this guidance,
EPA and the Army intend to encourage consistency in the manner in which we enforce
the CWA's requirements nationally, protect the integrity of the section 404 regulatory
program, and direct limited program resources in a manner that produces the most
beneficial environmental results.

    Options to address CWA violations include: no action, voluntary compliance, cease
and desist orders, EPA administrative compliance orders, interim measures designed to
protect the aquatic ecosystem from further damage, after-the-fact permits,
administrative penalty orders, and civil and criminal judicial actions. This guidance
discusses priorities for civil and criminal judicial actions only. By defining priorities  for
judicial actions, EPA and the Army do not intend to suggest that the agenciesvlimit
their use of these or any other enforcement options.  In fact, the agencies should
continue the use of all enforcement options whether in conjunction with or instead of
civil and criminal proceedings.

CIVIL AND CRIMINAL ENFORCEMENT PRIORITIES

A  Civil judicial cases

    Decisions on whether to refer a civil action to the Department of Justice must be
on a case-by-case basis, and the absence or presence of one or more of the following
factors should not necessarily dictate a decision regarding a particular .case.
Nevertheless, enforcement personnel should consider the following factors when
deciding whether to refer a crvfl action:

    1.  Quality of the waters affected.  Enforcement personnel should .determine, to the
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extent practicable, what functions and values the waters performed prior to the
unauthorized discharge.  Regions and Districts should give priority to violations that
affect wetlands and other special aquatic sites.

     2. Impact of the discharge.  Enforcement personnel should determine, to the
extent practicable, the amount and content of the discharge, the number of acres
affected by the discharge, and the discharge's direct and indirect effects. Priority should
be given to those discharges that have ah especially deleterious effect on wetlands
functions or values, that affect a large area of wetlands or other waters, or that are
widespread and have significant cumulative effects.  These would include unauthorized
discharges  with significant adverse effects on aquatic ecosystem diversity, productivity,
and stability such as loss of fish or wildlife habitat or loss of the capacity of a wetland
to assimilate nutrients, purify water, or reduce wave energy.  Judicial enforcement
action would normally be appropriate, for  example, for unauthorized discharges that
cause or contribute to violations of state water quality standards; violate any applicable
toxic effluent standard or prohibition under Section 307 of the CWA; or jeopardize
endangered or threatened species  and their designated critical habitat  Judicial
enforcement action should be considered for any case where unauthorized discharges
did or may cause or contribute to significant  adverse environmental impacts.

    3.  Culpability of violator.  Enforcement  personnel should consider the violator's
prior compliance history when determining what type of enforcement action is
appropriate.  Priority should be given to violators with a history of noncompliance and
those who  commit taiowing violations. The violator's experience with the program and
whether he or she had been the subject of previous enforcement actions are
considerations.  In general, repeat violators warrant judicial action, regardless of
whether the violations occurred on the same  site or on different sites.  Repeat
violations,  however, are not a prerequisite  for referring a civil case to the Department
of Justice.                                                               v

    4.  Deterrence value.  Enforcement personnel should consider the extent to which
the violation is flagrant, visible, and well-publicized. If there are a number of violations
within a particular geographic area or industry, civil judicial action against one or more
of the violators can provide excellent deterrence. The agencies should refer for civil
action a case against any violator whose actions, if left unpunished, would have the
effect of jeopardizing the integrity of the section 404 program in the area where the .
violation occurred.

    5.  Benefit from the violation.  Enforcement personnel should consider the
economic benefit a violator derived from the unauthorized discharge. Because
administrative penalties are limited, when a violator has obtained a significant .economic
benefit from the discharge, a civil judicial action may be the only enforcement option
that can effectively recover that benefit
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    6. Equitable considerations.   In addition to the above five factors, the Regions
and Districts will want to anticipate and evaluate the strength of any equitable
considerations likely to be raised by potential defendants.  Priority should be given to
recent and ongoing violations.  Regions and Districts should also take into account, as
appropriate, when the Region and/or District learned of the violation, and whether
timely administrative attempts to achieve compliance were unsuccessful and a civil
referral is the  only available means to obtain needed injunctive relief.

    Another equitable consideration is whether the violator received misinformation
from the federal government as to whether the discharge required a section 404 permit.
Based on existing case law, the federal government can only rarely and in very limited
circumstances  be barred from enforcing its laws. At the same time, an important goal
of federal enforcement, including section  404 enforcement, is fair and equitable
treatment of the regulated community. As a result, the Regions and Districts will need
to carefully consider the appropriateness  of initiating a civil suit in cases where the
violator may have reasonably relied on a federal official's misrepresentations regarding
the need for a section 404 permit. This includes situations where the violator was led
to believe that the activity did not  constitute a discharge, that, the  discharge did not take
place in waters of the United States, or that a general permit covered the discharge.
When determining whether the violator's  reliance was reasonable, enforcement
personnel should assess such factors as whether the misrepresentations were made by
EPA or the Corps, the two federal agencies charged with implementing the section 404
program, or another federal agency, whether the misrepresentations were communicated
to the violator in writing or were merely oral statements; the extent of the violator's
familiarity with the section 404 program; and whether the violator knew, should have
known, or with reasonable diligence could have determined, that the representations
were erroneous.                                           •
              r                                    -                 •

    The first two factors listed above center upon the "environmental effects of the
violation.  Special attention should be paid both to violations that damage large areas
of wetlands and those that impair valuable wetlands, no matter what their size.  The
next three factors are intended to protect the integrity of the section 404 program by
focusing enforcement  priorities first on individuals or violations which show  disdain for
the law and on those who seek to  benefit from circumvention of the law.

B.  Criminal eases

    With regard to the discharge of dredged or fill material, section 309(c)  of the CWA
provides criminal penalties for four separate offenses.  First, anyone who negligently
violates section 301 (e.g., engaging in  unauthorized discharges) or who negligently
violates the requirements of a section 404 permit may be criminally liable. Second,
anyone who knowingly violates section 301 or the requirements of a section 404 permit
may also be subject to criminal liability. Third, any person who violates section 301 or
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the conditions of a section 404 permit and, in doing so, knowingly endangers another
person may be subject to criminal penalties.  Finally, section 309(c) provides criminal
sanctions for  persons who knowingly make false material statements regarding a section
404 permit.

    In some instances a violation will involve circumstances which indicate that a
criminal prosecution'may be in order.  Such circumstances should be underscored when
the case is referred to the Department of Justice. Ultimately, Justice must exercise its
discretion as to whether or not to proceed criminally in any case. If there is a
possibility of criminal prosecution, field personnel should pay special attention to
evidentiary matters such as sample preservation, content of statements to and from any
potential defendant, good photographs, and chain of custody.

    This document provides internal guidance for field personnel regarding the exercise
of their enforcement  discretion. Accordingly, this document creates no rights  in third
parties.
For the Environmental Protection Agency:
                           \zhlto
                         Date              'FREDERICK F. STEHL     Date
                                            Associate Enforcement
Office of Wetlands Protection                  Counsel for Water
For the Oiief of Engineers:
       P. ELMORE       Date/  /
Chief, Operations, Construction,
  and Readiness Division
Directorate of Crvfl  Works
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                                                   III.B.16.
"Supplemental Guidance on Section 309(g)(6)(A) of  the  Clean Water
Act", March 5, 1993.
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               UNITEO STATES ENVIRONMENTAL PROTECTION AGENCY
                            . WASHINGTON, D.C. 20460
                                 MAR
MEMORANDUM

SUBJECT:   Supplemental Guidance on Section 309(g)(6)(A) of the Clean Water
            'Act    ..         .....-.••-.''

TO:         Regional Counsel                               -
   • •     •    •   .^^    ,-.     •         '.             •       ••      .-•

FROM:      Frederick F. Stiehl
             Enforcement Counsel for Water

       On August 28, 1987, the Office of Enforcement issued the "Guidance on
State Action Preempting Civil Penalty Actions Under the Federal Clean Water Act.*
This guidance sets forth EPA's interpretation of section 309(g)(6)(A), which limits
EPA's authority to seek penalties judicially under certain circumstances.1  Under
section 309(g)(6HA)(ii), EPA may not  initiate a civil penalty action under sections
309{d) or 311 of the Clean Water Act if a state has commenced and is diligently
prosecuting an administrative penalty  action of its own for the same violations, and
   'Section 309(g)(6)(A) of the dean Watar Act read*, in pertinent part, as follows:

      (A) Limitation on actions under other factions

             Action takan by the Administrator or the Secretary, as the case may fee,
      under this subsection shall not affect or limit the Administrator's or Secretary's
      authority to enforce any provision of this chapter: except that any violation -

             (i) with respect to which the Administrator or the Secretary haa commenced and is
             dJBoentiy prosecuting, an action under this subsection,

             fli) with respect to which a State has commenced and is dWparrtfy
             prosecuting an action under a State law'comparable to this
             subsection, or               .   '           .  .    .

             (ffi) for which the AUiiunisoatof, the Secretary, or the State, has
             issued a final order not aubject'to further judicial review and the
             violator-has paid a penalty assessed under this subsection, or such
             comparable State tow. as the case may be,  .

      shall not be the subject of e civil penalty action under aubsection (d) of .this section
      or section 132lib) of this title or section  1365 of this title.
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 The cause of action arises from a state law comparable'.to subsection 309(g) of the
 Act.  Since issuance of the guidance, caselaw has emerged that Interprets section
 309(g)(6)(A) consistent with the guidance; landing additional Judicial support to
 EPA's policy. This document is intended to supplement the Agency's
 interpretation of CWA section 309(g)(6)(A) as set forth In the original guidance, in
 light of those recent judicial opinions.

      Adverse judicial decisions are also noted in this supplemental guidance.
 Recent adverse holdings are predominantly in accord with a First Circuit decision in
 North and South Rivers Watershed Association v. Town of Seftuate. 949 F.2d 552
 (1st Cir. 1991), in which a citizen suit was barred by section 309(g)(6)(A) using
 reasoning contrary to the statutory language and to EPA's policy guidance.
 Scituate involved a citizen's action against the Town of Scituate, Massachusetts,
 alleging that the town had been discharging pollutants from its sewage treatment
 plant in violation of its federal NPDES permit-  Prior to the commencement of the
 citizen's suit, the Massachusetts Department of Environmental Protection had  .
 issued an administrative order regarding the allegedly illegal discharges pursuant to
a section of the Massachusetts Clean Waters Act which does not authorize civil or
 administrative penalties.   In ruling that this state action barred the citizen suit
 under section 309(g)(6)(A), the First Circuit  in Seftuate focused on the
 comparability of the entire statutory scheme..of the Massachusetts Clean Waters
 Act with the federal Act.  Without elaboration, the Scituate court also found that
 the administrative order constituted diligent  prosecution of the NPDES violations.
 EPA does not agree with the interpretation given section 3Q9(g)(6)(A) by the First
 Circuit in Scttuata.  and has filed an amicus brief arguing against that decision in
another case now before the Ninth Circuit.2  '

        The focus of this supplement is on section 309(g)(6)(A)(ij), and attends
primarily to EPA policy regarding the issues of when a state action constitutes
diligent prosecution, and when such prosecution is under a state taw comparable
to subsection 309(g).  Until such time as the Scifuata opinion is reversed, or loses
its relevance due to other appellate rulings or by Congressional amendment of
section 309(g)(6) consistent with EPA's policy, the Regions should discuss the
issues set forth below in every judicial referral in which a state has previously
taken an enforcement action against the violator, A full discussion in the litigation
report on the five points set forth below will assist the Department of Justice in
the expeditious filing of the case.1
   aAmicus curiae brief filed by the United States on April 3, 1992. in Washington Pubfie interest
Research Group v. Pondleton Woolen Mills. Appeal No. 82*35105.    '               .

   'A draft of this supplemental guidance was provided to the Department of Justice for review.
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                                    .3.     .  .       .•'.'.

      IS THE STATE DILIGENTLY PROSECUTING THE VIOLATOR?

      A.    Is the state administrative penalty action for the same
            violations ongoing at the time of the federal civil penalty
            action?  .                   .            :

      A state enforcement action will only fall within the purview of section
309(g)(6)(A)(ii) if it is proceeding contemporaneously with the federal civil penalty
action.  Section 309(g)(6)(A)(ii) speaks in the present tense, and does not bar
subsequent federal action for violations for which a state has commenced and
already concluded its diligent prosecution.4  See Public Interest Research Group v.
GAP. 770 F.  Supp. 943  (D.N.J. 1991) (Court emphasizes the requirement in the
subsection that both state and federal actions must be concurrent, permitting a
citizen suit for violations for which the New Jersey Department of Environmental
Protection had already entered into an Administrative Consent Order).

      B.    Will the state administrative penalty action  .effectively cause the
            violator to comply with the federal or state clean water statute?

      The state must be diligently prosecuting the violator in order for the federal
suit to be barred.  Several factors bear upon a determination of diligent
prosecution, including ah assessment of the effectiveness of the state action in
gaining compliance without undue delay;  If the state administrative action is not
likely to cause the violator to comply with the pertinent water pollution control
law, then federal administrative or judicial action may be appropriate. See Atlantic
States Legal foundation. Inc. v. Universal Tool & Stamping Co.. 735 F. Supp.
1404 (N.D.Ind. 1990) (Court found that the fact that defendant continued to
violate, its permit limits long attar Indiana's Department of Environmental
Management issued an Order of Compliance and final Consent Decree, and that jt
was the threat of citizen suit that had the real effect on defendant's efforts to
comply, signified lack of diligent prosecution);. See ajfic N:Y. Coastal Fisherman's
Assoc.  v. N.Y.C. Sanitation Dent.. 33 Envtl. Rep. Cas. 1932 (S.D.N.Y. 1991)
(Court held that state was not diligently prosecuting Department of Sanitation, but
rather 'acting as a pen pal, not a prosecutor,* when several extensions of planning
and construction deadlines contained in administrative order meant.that leachate
problem would not be rectified until twelve years after state became involved).
   'Note, however, that subsection lg)(6)(AMfi) may apply when a state action has been
concluded.  Under that provision, federal tivi penalty actions are barred when a state has issued a
final order and the violator has paid a penalty assessed for those particular violations. The Region
should compare its case and the state action.to determine if the violations cited are identical, and if
the penalty assessed in the atate action was appropriate (e.g.. recovers economic benefit at a
|animum) and therefore reflective at a diligent prosecution.  .   .
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       C.    Is the penalty assessed in the state action sufficient to constitute
             diligent prosecution?

       While many state laws may grant a state administrative agency discretion in
 calculating appropriate penatty figures, a sum that js wholly inadequate to redress
 the number and severity of violations may not constitute diligent prosecution. See
 Universal Tool. 73S-Fr-Suop. lAOAfCourt found that trw% state was not diligently
 prosecuting, for purposes of section 309(g)(6)(A)(ii), when the consent decree
 entered into by the state'and the defendant only assessed a penalty of $10,000
 when there existed statutory authority to assess $25,000 for each of hundreds of
 reported violations).6
 II.    DID THE STATE ACTION ARISE FROM A STATE LAW COMPARABLE TO
      SECTION 3Q9(Q). WHICH AUTHORIZES ADMINISTRATIVE PENALTIES?
       '  •     •   '  *'     '         -• •      ''.''••
      A .state action will not bar a section 309(d) or section 311 federal action
 unless the state action is brought under a statutory section comparable to
 subsection 309(gj of the Clean Water Act, which Is entitled "Administrative
 Penalties." Such an administrative penalty provision found in a state jaw must
 essentially mimic the substance of the federal provision in order to be comparable
 for purposes of barring federal action, including analogous procedural safeguards
 and penalty assessment factors.                •    •

      A.    Is the state action brought under a state law comparable to
            subsection 309{g), authorizing administrative penalty actions?

      The state action must.be one seeking administrative penalties, and be
 comparable to the federal subsection, 3O9(g). The  limitation on federal civil action
 only applies when the state cause of action is predicated upon a comparable
 administrative-penalty section, and is not satisfied simply because the entire
 statutory scheme of the state law contains similar enforcement mechanisms. See
 Arkansas Wildlife Federation v. Bekaart Corn.. 791  F. Supp. 769, 775  {W.D. Ark.
 1992) (Court found that the term "this subsection"  .as contained in subsection
 309{g)(6)(A) clearly referred to subsection 309(g), dismissing the Seftoata court's
 reliance upon the entire statutory scheme). But see MlY. .Coastal Fisherman's
 Assoc. v. N.Y.C. Sanitation Pent.. 33 Envtl. Rep. CBS. 1932 (S.D.N.Y. 1991)
 •  *ct. Atlantic States Legal Foundation, tnc^ v. Tvson Foods. ITMT , 682 F. Supp. 1186 (N.D.Ala.
19881. reverted on other grounds. 897 F.2d 11-28 (11th Or. 1990) (Defendant's expenditure off
approximately $1,8 million in making modification* to its wastewater treatment facility as required
in an order issued by the state Department of Environmental Management, coupled with the
possibility of civO-penalties or other appropriate relief if found in further noncompiiance, was
diligent prosecution arid sufficient to bar citizen action).
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 (Court cites to Scituata. and finds that because under the state's law the state can
 seek administrative penalties, that it was comparable to the Clean Water Act,
 irrespective of the fact that no penalties were Imposed under any of the
 administrative orders).

       B.    Does the state administrative penalty provision contain
             comparable procedural safeguards as subsection 309(9)?

       In order to be comparable to subsection 309(g) to effect a limitation on
 federal action, the state law provision must contain analogous procedures relating
 to the right to a hearing, penalty assessment factors, public notice, the
 presentation of evidence, and the finality of the administrative order. The public
 notice and opportunity for comment requirements contained in the federal
 administrative penalty provision are  especially significant when gauging the
 comparability  of a state law.  Such requirements  help prevent the federal and state
 governments from evading the obligation to diligently prosecute violations.6

      This case review was meant to assist regional counsel in applying EPA's
 policy on when state action bars civil judicial action, but the cases cited herein do
 not represent  an exhaustive list of cases addressing the section 309(g)(6)(A) bar.
 This document Is intended to supplement and enhance, not supersede, EPA's
 interpretation  of CWA section 309(g)(6)(A) set forth in the guidance issued in
August of 1987.   At the time of this writing, the  comparability issue addressed by
'the Scituate court is on appeal in Washington Public Interest Research Group v.
 Pendleton Woolen Mills. Appeal No. 92-35105 (9th Cir. 1992), with the United
 States filing as amicus curiae in support of the plaintiff-appellant.
   ' See Universal Tool 735 F. Supp. 1404 (Court noted the remarks of Senator Chafee in the
 legislative history, and scrutinized the Indiana statute, noting several deficiencies relating to its
 comparability with subsection 309(g), including the absence in the state law of provisions regarding
 the factors to be considered in assessing a penalty, and of a provision in the federal tew requiring
 that the public be given a reasonable opportunity to comment upon the penalty assessment). See
 aJSfi GAF. 770 F. Supp. 943 (Court holds that New Jersey Water Pollution Control Act does hot
 provide the pubHc with notice and opportunity to participate in the assessment of dvfl
 administrative penalties, and therefore, the state administrative action was not comparable to an
 action under the Clean Water Act within the meaning of subsection 309); NRDC v. Vvoen Corp:.
 803 F. Supp. 97 (N.D.Ohio 1992) (Court finds that Ohio Water Whition Act is not comparable for
 purposes of barring citizen suits under 309(g)(6HA) because the law gives the state agency
 discretion to provide for public notice, comment, and hearings, as opposed to the mandatory
 procedural safeguards found in subsection 309(g) of the Clean Water Act); Public Interest Research
 Group of New Jersey. Inc. v. New Jersey pxoresswsv Authority. CKr. No. 91*1701 (D.NJ.
 December 5. 1992) (Court held that section 3Q9(g)(6)(A) was -Inapplicable to a state enforcement
 proceeding which was comprised of a Memorandum of Understanding setting forth a construction
 schedule when there was no notice about the imposition of a penalty or the right to a hearing).
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                                  6
     For furmeo information on this supplemental guidance; contact Avi Garbow,
OE-Water(fTOt 202-260^ 1579).
cc:   John Cruden, DO J
  •  ' Joel GrosslboJ
     ORCWate^ Branch Chiefs
     OE Water Attorneys
     Rich Kpzlowskf, OWEC
     Susan Lepow, OGC
     Anrie Shields, DOJ
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